As filed with the United States Securities and Exchange
Commission on March 3, 2000.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Freeport-McMoRan Copper & Gold Inc.
(Exact name of registrant as specified in its charter)
Delaware 1615 Poydras Street 74-2480931
(State or other New Orleans, Louisiana 70112 (I.R.S. Employer
jurisdiction of (504) 582-4000 Identification Number)
incorporation (Address, including zip code,
or organization) and telephone number,
including area code, of
registrant's principal
executive offices)
Stephen M. Jones Copy to:
Senior Vice President, L. R. McMillan, II
Chief Financial Officer and Secretary Jones, Walker, Waechter,
Freeport-McMoRan Copper & Gold Inc. Poitevent, Carrere & Denegre, L.L.P.
1615 Poydras Street 201 St. Charles Avenue, 51st Floor
New Orleans, Louisiana 70112 New Orleans, Louisiana 70112
(504) 582-4000 (504) 582-8188
(Name, address, including zip
code, and telephone
number, including area code,
of agent for service)
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes
effective.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, please check the following box. [x]
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of each Amount offering aggregate Amount of
class of securities to be price per offering registration
to be registered registered(1) unit(2) price(2) fee
- ------------------------------------------------------------------------------
Class A Common Stock(3)
Class B Common Stock(4) $500,000,000(9)(10) 100% $500,000,000 (11)
Preferred Stock(5)
DepositaryShares(6)
Debt Securities(7)
Warrants(8)
- ------------------------------------------------------------------------------
(1)In United States dollars or the equivalent in one or more
foreign currencies or currency units or composite currencies,
including the European currency unit.
(2)Estimated solely for purposes of calculating the registration
fee pursuant to Rule 457.
(3)Subject to note (9) below, we are registering an
indeterminate number of shares of class A common stock that
we may issue from time to time at indeterminate prices,
including shares issuable upon conversion of (a) debt
securities that are convertible into class A common stock or
(b) preferred stock (or depositary shares representing
preferred stock) that is convertible into class A common
stock, and including shares issuable upon exercise of
warrants to purchase class A common stock.
(4)Subject to note (9) below, we are registering an
indeterminate number of shares of class B common stock that
we may issue from time to time at indeterminate prices,
including shares issuable upon conversion of (a) debt
securities that are convertible into class B common stock or
(b) preferred stock (or depositary shares representing
preferred stock) that is convertible into class B common
stock, and including shares issuable upon exercise of
warrants to purchase class B common stock.
(5)Subject to note (9) below, we are registering an
indeterminate number of shares of preferred stock that we may
issue from time to time at indeterminate prices, including
shares issuable upon conversion of debt securities that are
convertible into preferred stock, and including shares
issuable upon exercise of warrants to purchase preferred
stock. Shares of preferred stock may be convertible into
shares of class A common stock or class B common stock.
(6)Subject to note (9) below, we are registering an
indeterminate number of depositary shares that will be
evidenced by depositary receipts issued pursuant to a deposit
agreement. If we elect to offer fractional interests in
shares of preferred stock, the depositary receipts will be
distributed to those persons acquiring the fractional
interests, and the shares of preferred stock will be issued
to the depositary under the deposit agreement.
(7)Subject to note (9) below, we are registering an
indeterminate amount of debt securities that we may issue
from time to time at indeterminate prices. The debt
securities may be convertible into class A common stock,
class B common stock or preferred stock.
(8)Subject to note (9) below, we are registering an
indeterminate number of warrants that we may issue from time
to time at indeterminate prices entitling the holder to
purchase shares of class A common stock, class B common
stock, preferred stock or debt securities.
(9)Represents the principal amount of any debt securities issued
at, or at a premium to, their principal amounts, and the
issue price rather than the principal amount of any debt
securities issued at an original issue discount; the
liquidation preference of any preferred stock; the amount
computed pursuant to Rule 457(c) for any class A common stock
and class B common stock; the issue price of any warrants;
and the exercise price of any warrants; all of which together
will not exceed $500,000,000.
(10) No separate cash consideration will be received for (a)
class A common stock, class B common stock or preferred stock
issuable upon conversion or exchange of other securities
registered, or (b) depositary shares issued with respect to
preferred stock.
(11) Pursuant to Rule 429 under the Securities Act of 1933, the
amount of the registration fee of $132,000 for the securities
registered pursuant to this Registration Statement is offset
by $132,000 previously paid to the Commission relating to
securities previously registered pursuant to the registration
statements listed below, which remain unissued at the close
of business on the date of this Registration Statement.
Registration Aggregate Amount
Statement No. Registered but
Unissued Fee Paid
-------------------- --------------------- ----------
No. 33-45787 filed 2,918,400 shares of $ 20,064
2/18/92 Class A Common Stock
at $22 per share
No. 33-66098 filed $577 0
7/16/93
No. 33-63376 filed $50,000,000 15,625
5/26/93
No. 33-52503 filed $249,992,400 86,204
3/5/94
No. 333-02699 filed $49,610,300 10,107
4/19/96
--------
$132,000
========
Pursuant to Rule 429, this Registration Statement constitutes
Post-Effective Amendment No. 1 to the Registration Statement
on Form S-3 No. 33-45787, Post-Effective Amendment No. 1 to
the Registration Statement on Form S-3 No. 33-66098, Post-
Effective Amendment No. 2 to the Registration Statement on
Form S-3 No. 33-63376 and Post-Effective Amendment No. 2 to
the Registration Statement on Form S-3 No. 33-52503, and
hereby deregisters all remaining unissued securities
registered pursuant to these registration statements. This
Registration Statement also constitutes Post-Effective
Amendment No. 2 to the Registration Statement on Form S-3 No.
333-02699, and hereby deregisters an aggregate amount of
$49,610,300 of the $300,000,000 of securities registered
pursuant to such registration statement but unissued as of
the date of this Registration Statement.
________________
The registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement
shall become effective on such date as the Commission, acting
pursuant to Section 8(a), may determine.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and does not solicit an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated March 3, 2000
Prospectus
Freeport-McMoRan Copper & Gold Inc.
We may use this prospectus to offer the following
securities for sale:
. Class A common stock
. Class B common stock
. Preferred stock
. Depositary shares
. Debt securities
. Warrants
We will provide the specific terms of the
securities we are offering in supplements to this
prospectus. A supplement may also update or change
information contained in this prospectus. This
prospectus may not be used to sell securities unless
accompanied by a prospectus supplement.
We may sell securities directly to one or more
purchasers or to or through underwriters, dealers or
agents. If any underwriters, dealers or agents are
involved in the sale of securities, the accompanying
prospectus supplement will set forth their names, the
principal amounts, if any, to be purchased by
underwriters, any applicable fees, commissions or
discounts, and the net proceeds to be received by us.
You should carefully consider the risks described
under the caption "Risk Factors" beginning on page 3.
Neither the Securities and Exchange Commission nor
any state securities commission has approved or
disapproved these securities or passed on the adequacy
or accuracy of this prospectus. Any representation to
the contrary is a criminal offense.
_____________________
The date of this prospectus is March 3, 2000.
Certain persons participating in this offering may engage in
transactions that stabilize, maintain or otherwise affect the
price of our securities including over-allotment, stabilizing and
short-covering transactions and the imposition of penalty bids.
THE COMPANY
We are one of the world's largest copper and gold mining
companies in terms of reserves and production. We are one of the
lowest cost copper producers in the world, after taking into
account customary credits for related gold and silver production.
Our principal operating subsidiary is P.T. Freeport
Indonesia Company, a limited liability company organized under
the laws of the Republic of Indonesia and domesticated in
Delaware. PT Freeport Indonesia explores for, develops, mines
and processes ore containing copper, gold and silver. Its
operations are located in the remote rugged highlands of the
Sudirman Mountain Range in the province of Irian Jaya (recently
proposed to be renamed "Papua"), Indonesia, which is located on
the western half of the island of New Guinea. PT Freeport
Indonesia markets its concentrates containing copper, gold and
silver worldwide. We have an 85.86 percent ownership interest in
this subsidiary and the Government of Indonesia has a 9.36
percent interest.
PT Freeport Indonesia's operations are conducted pursuant to
an agreement, called a Contract of Work, with the Government of
Indonesia. The Contract of Work allows PT Freeport Indonesia to
conduct extensive exploration, mining and production activities
in a 24,700-acre area that we call Block A. In 1988 PT Freeport
Indonesia discovered our largest mine, Grasberg, in Block A.
The Grasberg complex contains the world's largest single gold reserve
and the world's largest single copper reserve. The Contract
of Work also allows PT Freeport Indonesia to explore for minerals
in a 0.5 million-acre area that we call Block B. All of PT
Freeport Indonesia's current reserves are located in Block A.
Another of our operating subsidiaries, PT IRJA Eastern
Minerals Corporation, which we refer to as Eastern Minerals,
holds an additional Contract of Work in Irian Jaya (Papua)
covering approximately 1.25 million acres and is conducting
exploration activities under this Contract of Work. We have a
94.9 percent ownership interest in Eastern Minerals.
In 1996, we established joint ventures with Rio Tinto plc, an
international mining company with headquarters in England.
One joint venture covers PT Freeport Indonesia's mining operations
in Block A. This joint venture gives Rio Tinto, through 2021, a 40
percent interest in certain assets and in production above specified
levels from operations in Block A and, after 2021, a 40 percent interest in
all production in Block A. Under our joint venture arrangements, Rio
Tinto also has a 40 percent interest in future development and
exploration projects under PT Freeport Indonesia's Contract of
Work and Eastern Minerals' Contract of Work. In addition, Rio Tinto has
the option to participate in 40 percent of any of our other
future exploration projects in Irian Jaya (Papua).
Under another joint venture agreement, we conduct
exploration activities in an area covering approximately 1.0
million acres in five parcels contiguous to PT Freeport
Indonesia's Block B and one of Eastern Mineral's blocks. Rio
Tinto has elected to participate in 40 percent of our interest
and cost in the venture.
We also smelt and refine copper concentrates in Spain, and
market the refined copper products, through our wholly owned
subsidiary, Atlantic Copper, S.A. In addition, PT Freeport
Indonesia has a 25 percent interest in P.T. Smelting, an
Indonesian company that operates a copper smelter and refinery in
Gresik, Indonesia.
The address and telephone number of our principal executive
offices are:
1615 Poydras Street
New Orleans, Louisiana 70112
(504) 582-4000
RISK FACTORS
An investment in any security involves risks. Accordingly,
before purchasing any securities offered by this prospectus, you
should carefully consider the following factors, as well as the
other information about us and our business that is contained or
incorporated by reference in this prospectus and in any
accompanying prospectus supplement. This prospectus includes,
and any accompanying prospectus supplement may include, "forward-
looking statements" within the meaning of the federal securities
laws. Forward-looking statements are all statements other than
statements of historical facts, such as statements regarding
anticipated production volumes, sales volumes, ore grades,
commodity prices, reserve estimates, capital expenditures,
environmental reclamation and closure costs, political, economic
and social conditions in our areas of operations, and exploration
efforts and results. We caution you that these statements are
not guarantees of future performance, and our actual results may
differ materially from those projected, anticipated or assumed in
the forward-looking statements. Important factors that can cause
our actual results to differ materially from those anticipated in
the forward-looking statements include the following:
Our net income can vary significantly with fluctuations in the
market prices of copper and gold.
Our revenues are derived primarily from the sale of copper
concentrates, which also contain significant amounts of gold, and
from the sale of copper cathodes, copper wire rod and copper
wire. Most of our copper concentrates are sold under long-term
contracts, but the selling price is based on world metal prices
at or near the time of shipment and delivery. World metal prices
for copper and gold historically have fluctuated widely and are
affected by numerous factors beyond our control.
The volume and grade of the reserves we recover and our rates of
production may be more or less than anticipated.
Our reserve amounts are determined in accordance with
established mining industry practices and standards, but are
estimates only. Our mines may not conform to standard geological
expectations. Because ore bodies do not contain uniform grades
of minerals, our metal recovery rates will vary from time to
time, which will result in variations in the volumes of minerals
that we can sell from period to period. Some of our reserves may
become unprofitable to develop if there are unfavorable market
price fluctuations in copper and gold, or if there are
significant increases in our operating and capital costs. In
addition, our exploration programs may not result in the
discovery of additional mineral deposits that we can mine
profitably.
Because our primary operating assets are located in the Republic
of Indonesia, our business can be adversely affected by
Indonesian political, economic and social events.
Maintaining a good working relationship with the Indonesian
government is important to us because all of our mining
operations are located in Indonesia and are conducted pursuant to
Contracts of Work with the Indonesian government. PT Freeport
Indonesia's and Eastern Minerals' Contracts of Work were entered
into under Indonesia's 1967 Foreign Capital Investment Law, which
provides guarantees of remittance rights and protection against
nationalization. These contracts also specifically provide that
the Indonesian government will not nationalize or expropriate PT
Freeport Indonesia's or Eastern Minerals' mining operations and
that disputes with the Indonesian government must be submitted to
international arbitration.
In May 1998, President Suharto, Indonesia's political
leader for more than 30 years, resigned in the wake of an
economic crisis in Indonesia and other parts of Southeast Asia
and in the face of growing social unrest. Vice President B.J.
Habibie succeeded Suharto. In June 1999 Indonesia held a new
parliamentary election on a generally peaceful basis as the first
step in the process of electing a new president. In October
1999, in accordance with the Indonesian constitution, the
country's highest political body composed of the newly elected
national parliament along with additional provincial and other
representatives elected Abdurrahman Wahid as the new president
and Megawati Sukarnoputri as vice president. A new cabinet was
also announced in October 1999. The selection of a new president
in an election that was widely regarded as free and fair was an
important milestone in restoring political and economic
stability, but Indonesia continues to face political and economic
uncertainties, including separatist movements and civil and
religious strife in a number of provinces.
In particular, social, economic and political instability in
the province of Irian Jaya (Papua), where our primary operations
are located, could have a material adverse impact on our mining
operations if it results in damage to our property or interruption
of our activities. For example, we voluntarily
suspended our exploration field activities for three months, from
May 15 through August 15, 1999, as a precaution during the
Indonesian national election period. In August 1998, we
suspended operations for three days at our Grasberg mine in
response to a wildcat work stoppage (not authorized by the
workers' union) by a group of workers, a majority of whom were
employees of our contractors. The workers, who voluntarily
returned to work, cited employment issues as the reasons for
their work stoppage. The actions of the workers were peaceful,
there was no personal injury or property damage, and our
concentrate shipments were not interrupted. In March 1996, local
tribespeople engaged in acts of vandalism that caused
approximately $3 million of damages to our property and caused us
to close the Grasberg mine and mill for three days as a
precautionary measure, although our concentrate shipments were
not interrupted.
A segment of the local population is opposing Indonesian
rule over Irian Jaya (Papua), and several separatist groups have
sought political independence for the province. The degree of
political and economic autonomy that might be provided to
individual provinces, including Irian Jaya (Papua), is a current
issue in Indonesian politics. In Irian Jaya (Papua), there have
been sporadic attacks on civilians by separatists and sporadic
but highly publicized conflicts between separatists and the
Indonesian military. We have a board approved policy statement
on social and human rights, and have comprehensive and extensive
social, cultural and community development programs, to which we
have committed significant financial and managerial resources.
These policies and programs are designed to address the impact of
our operations on the local villages and tribes and to provide
assistance for the development of the local people. While we
believe these efforts should serve to avoid damage to and
disruptions of our mining operations, our operations could be
damaged or disrupted by social, economic and political forces
beyond our control.
In addition to the specific risks described above, we are
also subject to the usual risks associated with conducting
business in a foreign country. These risks include the risk of
war, revolution, civil unrest, expropriation, forced modification
of existing contracts, changes in the country's laws or policies,
including laws or policies relating to taxation, royalties,
imports, exports and currency, and the risk of having to submit
to the jurisdiction of a foreign court or having to enforce the
judgment of a foreign court or arbitration against a sovereign
nation within its own territory.
In addition to the usual risks encountered in the mining
industry, we face additional risks because our operations are
located in difficult terrain in a very remote area of the world.
Our mining operations are located in steeply mountainous
terrain in a very remote area in Indonesia. These conditions
have required us to overcome special engineering difficulties and
to develop extensive infrastructure facilities. In addition, the
area receives considerable rainfall, which has led to periodic
floods and mud slides. The mine site is also in an active
seismic area, and has experienced earth tremors from time to
time. In addition to these special risks, we are also subject to
the usual risks associated with the mining industry, such as the
risk of encountering unexpected geological conditions which may
result in cave-ins and flooding of mine areas. We have insurance
involving amounts and types of coverage we believe are
appropriate for our activities, but our insurance may not be
sufficient to cover an unexpected natural or operating disaster.
Our mining operations create difficult and costly environmental
challenges, and future changes in environmental laws, or
unanticipated environmental impacts from our operations, could
require us to incur increased costs.
Mining operations on the scale of our operations in Irian
Jaya (Papua) involve significant environmental challenges. A
primary challenge is to dispose of the large amount of crushed
and ground rock material, called tailings, that results from the
process by which we physically separate the copper, gold and
silver from the ore that we mine. Under our tailings management
plan, the river system near our mine transports the tailings to
the lowlands where deposits of the tailings and natural sediments
are controlled through a levee system for future revegetation and
reclamation. This plan has been approved by the Indonesian
government. Another of our major environmental challenges is
managing overburden, which is the rock that must be moved aside
in order to reach the ore in the mining process. Some overburden
in the presence of air, water and naturally occuring bacteria can
cause acid rock drainage, or acidic water containing dissolved
metals, which, if not properly managed, can have a negative impact
on the environment. Our overburden management plan, which has been
approved by the Indonesian government, is designed to minimize
these impacts, although we cannot assure that it will do so.
Our environmental management programs, which include
independent external environmental audits, are designed to manage
and minimize the impacts on the environment. We have
expended significant financial and managerial resources to comply
with Indonesian environmental regulations and permitting and
approval requirements, and anticipate that we will continue to do
so in the future. If there are changes in Indonesian
environmental laws, or unanticipated environmental impacts from
our operations, we could be required to incur significant
additional costs.
We have guaranteed an obligation of an Indonesian entity, and
have lent funds to the entity, and the value of the entity's
assets may not be sufficient to cover the debts.
As discussed in our SEC filings, in 1997 we guaranteed a
$254 million loan from a commercial bank to P.T. Nusamba Mineral
Industri (Nusamba), an Indonesian company. Nusamba borrowed the
funds to purchase stock in P.T. Indocopper Investama Corporation
(Indocopper Investama), a company whose only significant asset is
9.4 percent of PT Freeport Indonesia's stock, for $315 million.
Nusamba owns approximately 51 percent of Indocopper Investama's
stock and we own approximately 49 percent. The loan is secured
by a pledge of the Indocopper Investama stock owned by Nusamba
and is due in March 2002. We also agreed to lend Nusamba any
amounts necessary to cover shortfalls between the interest
payments on the loan and the dividends received by Nusamba on the
Indocopper Investama stock. At December 31, 1999, we had loaned
Nusamba $43.7 million, due March 2002, for this purpose.
The Indocopper Investama stock is the only significant asset
of Nusamba, and the estimated fair market value of the stock, based
on the current market value of our common stock, is
currently significantly below the $297.7 million aggregate
principal amount of the loans. If Nusamba does not pay the
loans when due, and we are obligated to pay the loan to the
commercial bank, we will seek to recover the Indocopper Investama
stock as provided by the financing documents, which are governed
by Indonesian law.
Movements in foreign currency exchange rates could have a
negative effect on our operating results.
All of our revenues are denominated in United States
dollars. However, some of our costs and some of our asset and
liability accounts are denominated in Indonesian rupiah,
Australian dollars or Spanish pesetas. Generally, our results
are adversely affected when the U.S. dollar weakens against these
foreign currencies and positively affected when the U.S. dollar
strengthens against these foreign currencies. Since 1997,
the Indonesian rupiah exchange rate has been volatile. From time
to time we have in the past and may in the future implement
currency hedges intended to reduce our exposure to changes in
foreign currency exchange rates. Our hedging strategies may,
however, not be successful, and any of our unhedged foreign
exchange payment requirements will continue to be subject to
market fluctuations.
Because we are primarily a holding company, our ability to pay
our debts and to pay dividends on our preferred and common stock
depends upon the ability of our subsidiaries to pay us dividends
and to advance us funds. In addition, our ability to participate
in any distribution of our subsidiaries' assets is generally
subject to the prior claims of the subsidiaries' creditors.
Because we conduct business primarily through our
subsidiaries, our ability to pay our debts and to pay dividends
on our preferred and common stock depends upon the earnings and
cash flow of our subsidiaries and their ability to pay us
dividends and to advance us funds. Contractual and legal
restrictions applicable to our subsidiaries could also limit our
ability to obtain cash from them. Our rights to participate in
any distribution of our subsidiaries' assets upon their
liquidation, reorganization or insolvency would generally be
subject to the prior claims of the subsidiaries' creditors,
including trade creditors and preferred stockholders, if any.
USE OF PROCEEDS
Unless we state otherwise in a prospectus supplement, we
will use the net proceeds from the sale of the securities for
general corporate purposes, which may include the repayment of
debt, acquisitions, capital expenditures and working capital.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges was as follows for
the years and period indicated:
Years ended December 31,
--------------------------------
1995 1996 1997 1998 1999
---- ---- ---- ---- ----
5.9x 4.5x 3.8x 2.5x 2.9x
For this calculation, earnings consist of (1) income from
continuing operations before income taxes, (2) minority interests
and (3) fixed charges. Fixed charges include interest and that
portion of rent our management believes to be representative of
interest.
______________
Our ratio of earnings to fixed charges and preferred stock
dividends was as follows for the years and period indicated:
Years ended December 31,
--------------------------------
1995 1996 1997 1998 1999
---- ---- ---- ---- ----
3.0x 2.6x 2.8x 1.9x 2.2x
For this calculation, we assumed that our preferred stock
dividend requirements were equal to the pre-tax earnings that
would be required to cover those dividend requirements. We
computed those pre-tax earnings using actual tax rates for each
period.
DESCRIPTION OF COMMON STOCK
General
As of the date of this prospectus, our certificate of
incorporation authorized us to issue up to 211,800,000 shares of
class A common stock, par value $0.10 per share, and 211,800,000
shares of class B common stock, par value $0.10 per share. Since our
board of directors initially authorized our share purchase program
in 1995 following a restructuring, we have purchased 54.5 million
shares of our class A common stock and class B common stock for a
total of $1.1 billion, approximately $20.10 per share. As of February 29,
2000, approximately 5.5 million shares remain authorized for purchase under
the share purchase program, and 62,300,723 shares of class A common stock
and 97,701,174 shares of class B common stock were outstanding. Our
class A and class B common stock are listed on the New York Stock Exchange.
Voting Rights
With respect to the election of directors, holders of class
A common stock, voting together with holders of voting preferred
stock, are entitled to elect 20 percent of the authorized number
of members of our board of directors, excluding those directors
that holders of preferred stock have the exclusive right to
elect. Each share of class A common stock and each share of
voting preferred stock has one vote. Holders of class B common
stock are entitled to elect the remaining directors. Each holder
of class B common stock has one vote per share. With respect to
all other matters submitted to a vote of our shareholders, except
as required by law, the holders of the class A and class B common
stock vote together as a single class, and record holders of each
class have one vote per share.
The special voting rights of our class A common stock and
voting preferred stock may be eliminated by the vote of a
majority of the class A and class B common shares present and
voting at any annual or special meeting of stockholders, voting
together. However, we have represented to the Internal Revenue
Service that we will not change the special voting rights until
after July 2000.
Dividends
Holders of our class A and class B common stock will share
ratably in any cash dividend that may from time to time be
declared by our board of directors. Dividends consisting of
shares of class A or class B common stock also may be declared
and will be paid as follows:
. shares of class A common stock may be paid only to
holders of shares of class A common stock, and shares of
class B common stock may be paid only to holders of
shares of class B common stock; and
. shares will be paid proportionately with respect to each
outstanding class A or class B common share.
Other Rights
In the case of any reorganization or consolidation or merger
of our company with another company, holders of shares of class A
or class B common stock will be entitled to receive stock, other
securities and property of the same kind and amount as that
received by the other class. However, holders of each class may
receive different kinds of shares if the only difference in the
shares is the inclusion of voting rights that continue the
special voting rights regarding the election of directors
described above.
In the event of a voluntary or involuntary liquidation,
dissolution or winding up of our company, prior to any
distributions to the holders of our common stock, the holders of
preferred stock will receive any payments to which they are
entitled. Subsequent to those payments, the holders of our class
A and class B common stock will share ratably, according to the
number of shares held by them, in our remaining assets, if any.
Shares of our class A and class B common stock are not
redeemable and have no subscription, conversion or preemptive
rights. Both classes of common stock are freely transferable.
Provisions of our Certificate of Incorporation
Our certificate of incorporation contains provisions that
are designed in part to make it more difficult and time-consuming
for a person to obtain control of our company unless they pay a
required value to our stockholders. Some provisions also are
intended to make it more difficult for a person to obtain control
of our board of directors. These provisions reduce the
vulnerability of our company to an unsolicited takeover proposal.
On the other hand, these provisions may have an adverse effect
on the ability of stockholders to influence the governance of our
company. You should read our certificate of incorporation and
bylaws for a more complete description of the rights of holders
of our common stock.
Classified Board of Directors. Our certificate of
incorporation divides the members of our board of directors,
other than those that may be elected solely by the holders of our
preferred stock, into three classes serving three-year staggered
terms. The classification of directors has the effect of making
it more difficult for our stockholders to change the composition
of our board. At least two annual meetings of stockholders may be
required for the stockholders to change a majority of the
directors, whether or not a majority of our stockholders believes
that this change would be desirable.
Supermajority Voting/Fair Price Requirements. Our
certificate of incorporation provides that the approval of the
holders of two-thirds of our outstanding common stock is required
for:
. any merger or consolidation of our company or any of
our subsidiaries with or into any person or entity, or
any affiliate of that person or entity, who was within
the two years prior to the transaction a beneficial
owner of 20 percent or more of our common stock or any
class of our common stock (an "interested party");
. any merger or consolidation of an interested party with
or into our company or any of our subsidiaries;
. any sale, lease, mortgage, pledge or other disposition
of more than 10 percent of the fair market value of the
assets of our company or any of our subsidiaries in one
or more transactions involving an interested party;
. the adoption of any plan or proposal for liquidation or
dissolution of our company proposed by or on behalf of
any interested party;
. the issuance or transfer by our company or any of our
subsidiaries of securities having a fair market value
of $10 million or more to any interested party; or
. any recapitalization, reclassification, merger or
consolidation of our company or any of our subsidiaries
that would increase an interested party's voting power
in our company or any of our subsidiaries.
However, the two-thirds voting requirement is not applicable
if:
. our board approves the transaction, or approves the
acquisition of the common stock that caused the
interested person to become an interested person, and
the vote includes the affirmative vote of a majority of
our directors who are not affiliates of the interested
party and who were members of our board prior to the
time the interested party became the interested party;
. the transaction is solely between us and any of our
wholly owned subsidiaries or between any of our wholly
owned subsidiaries; or
. the transaction is a merger or consolidation and the
consideration to be received by our common stockholders
is at least as high as the highest price per share paid
by the interested party for our common stock on the
date the common stock was last acquired by the
interested party or during a period of two years prior.
Supermajority Voting/Amendments to Certificate of
Incorporation. The affirmative vote of at least two-thirds of
our company's outstanding common stock is required to amend,
alter, change or repeal the provisions in our certificate of
incorporation providing for the fair price requirements described
above or our classified board of directors with staggered three-
year terms.
Removal of Directors; Filling Vacancies on Board of
Directors. Directors may be removed, with cause, by the vote of
the holders of all classes of stock entitled to vote at an
election of directors, voting together as a single class.
Directors may not be removed without cause by stockholders.
Vacancies in a directorship may be filled by the vote of the
class or classes of shares that had previously elected the
director creating the vacancy, or by the remaining directors or
director elected by that class. The board may increase the
number of directors and fill the newly created directorships, but
following the enlargement, 80 percent of the members of the
enlarged board must consist of directors elected by the holders
of our class B common stock.
DESCRIPTION OF PREFERRED STOCK
We summarize below some of the provisions that will apply to
the preferred stock unless the applicable prospectus supplement
provides otherwise. The summary may not contain all information
that is important to you. The complete terms of the preferred
stock will be contained in our certificate of incorporation and
the certificate of designations relating to the applicable series
of the preferred stock. These documents have been or will be
included or incorporated by reference as exhibits to the
registration statement of which this prospectus is a part. You
should read our certificate of incorporation and the applicable
certificate of designations. You should also read the prospectus
supplement, which will contain additional information and may
update or change some of the information below.
General
Our certificate of incorporation authorize us to issue,
without stockholder approval, up to 50,000,000 shares of
preferred stock, par value $0.10 per share. Our board of
directors may from time to time authorize us to issue one or more
series of preferred stock and may fix various terms for each
series, including the following:
. voting powers (if any);
. designations;
. preferences;
. relative participating and optional or other rights;
. qualifications; and
. limitations and restrictions.
Thus, our board of directors could authorize us to issue
preferred stock with voting, conversion and other rights that
could adversely affect the voting power and other rights of
holders of our class A and class B common stock or other series
of preferred stock. Also, the issuance of preferred stock could
have the effect of delaying, deferring or preventing a change in
control of our company.
The particular terms of any series of preferred stock
offered by this prospectus will be contained in an amendment to
our certificate of incorporation and described in a prospectus
supplement. The applicable prospectus supplement will describe
the following terms of any series of the preferred stock (to the
extent the terms are applicable):
. the specific designation, number of shares, rank and
purchase price;
. any liquidation preference per share;
. any redemption, payment or sinking fund provisions;
. any dividend rates (fixed or variable) and the dates on
which any dividends will be payable (or the method by
which the rates or dates will be determined);
. any voting rights;
. the commodity, currency, or units based on or relating to
commodities, currencies or composite currencies, in which
the preferred stock is denominated and/or in which
payments will or may be payable;
. the methods by which amounts payable in respect of the
preferred stock may be calculated and any commodities,
currencies, indices or other measures relevant to the
calculation;
. whether the preferred stock is convertible or
exchangeable and, if so,
(1) the securities into which the preferred stock is
convertible or exchangeable,
(2) the terms and conditions upon which conversions or
exchanges will be effected, including the initial
conversion or exchange prices or rates,
(3) the conversion or exchange period, and
(4) any other related provision;
. the place or places where dividends and other payments on
the preferred stock will be payable; and
. any additional voting, dividend, liquidation, redemption,
sinking fund or other rights, preferences, privileges,
limitations and restrictions.
The applicable prospectus supplement will also contain a
description of United States federal income tax consequences
relating to the purchase and ownership of that series of
preferred stock.
Unless the applicable prospectus supplement states
otherwise, the preferred stock will not have preemptive rights
and all shares of preferred stock will be of equal rank,
regardless of series. All shares of preferred stock offered by
this prospectus, when issued, will be fully paid and non-
assessable. Neither the par value nor the liquidation preference
of the preferred stock is indicative of the price at which the
preferred stock will actually trade on or after the date of
issuance. Unless the applicable prospectus supplement states
otherwise, there will be no restriction on our ability to
repurchase or redeem preferred stock while there is any arrearage
in payment of dividends or sinking fund installments.
As described under "Description of Depositary Shares" below,
we may, at our option, elect to offer depositary shares evidenced
by depositary receipts. Each depositary receipt will represent
an interest in a share of a particular series of preferred stock
that we will issue and deposit with a depositary. The interest
represented by the depositary receipt will be described in the
applicable prospectus supplement.
Dividends
Holders of preferred stock will receive cash dividends only
if declared by our board of directors out of funds legally
available to us to pay the dividends. If declared, the dividends
will be paid on the dates and at the rates described in the
applicable prospectus supplement. The rate may be fixed or
variable or both. Each dividend declared will be payable to
holders of record as they appear on our stock books on the record
date set by our board of directors.
Dividends on any series of our preferred stock may be
cumulative or noncumulative as provided in the applicable
prospectus supplement. If our board of directors does not
declare a dividend for any period with respect to a series of
noncumulative preferred stock, holders of shares of that series
of preferred stock will have no right to receive a dividend for
that period.
With respect to cumulative preferred stock, we may not take
the following actions unless we have paid or declared and set
apart for payment dividends for all past dividend periods on all
outstanding shares of the cumulative preferred stock and any
other capital stock of equal rank:
. declare, pay or set apart any amounts for dividends or
distributions with respect to the class A or class B
common stock or any other stock ranking junior to the
preferred stock ("junior stock"), unless the dividend
is payable solely in junior stock;
. purchase, redeem or otherwise acquire for value any
shares of junior stock, except
(1) as a result of a reclassification of junior stock,
(2) as a result of the exchange or conversion of our
junior stock for or into another junior stock, or
(3) through the use of proceeds of a sale of other
junior stock at approximately the same time; or
. make any payment to or for a sinking fund for the
purchase, redemption or other acquisition for value of
any shares of junior stock.
These prohibitions may be subject to exceptions described in the
applicable prospectus supplement. If the funds available for the
payment of dividends are insufficient to pay in full the
dividends payable on all outstanding shares of the cumulative
preferred stock and capital stock of equal rank, the total
available funds to be paid will be divided among the cumulative
preferred stock and the capital stock of equal rank in proportion
to the aggregate amount of dividends accrued and unpaid on the
cumulative preferred stock and the capital stock of equal rank.
Accrued dividends will not bear interest.
Convertibility and Exchangeability
You should read the applicable prospectus supplement for an
understanding of the terms on which shares of any series of
preferred stock may be exchanged for or converted into other
securities.
Redemption
The terms, if any, on which shares of preferred stock of any
series may be redeemed will be set forth in the applicable
prospectus supplement. If fewer than all of the outstanding
shares of the series are to be redeemed, our board of directors
will determine the number of shares of the series to be redeemed
and the method of effecting the redemption.
Liquidation
In the event of voluntary or involuntary liquidation,
dissolution or winding up of our company, the holders of any
series of the preferred stock and any other series of capital
stock of equal rank will be entitled to receive a preferred
liquidation payment equal to an amount described in the
applicable prospectus supplement, plus accrued and unpaid
dividends. The preferred liquidation payment will be made out of
any of our assets remaining after we have paid or provided for
the payment of our debt and other liabilities, and before any
distribution is made or set apart for holders of junior stock.
If the liquidation payment is not paid in full, the holders of
preferred stock and capital stock of equal rank will have the
right to share ratably in any distribution of our remaining
assets in proportion to the preferential amount to which the
holder is entitled. After we pay the liquidation payment in
full, the holders of the series of preferred stock will not be
entitled to participate in any further distribution of our
remaining assets. A consolidation or merger of our company with
one or more companies or the sale of all or substantially all of
our assets will not be deemed to be a liquidation, dissolution or
winding up of our company.
Voting
Holders of our preferred stock will not be entitled to vote,
except as provided below or in the applicable prospectus
supplement, and except as required by law. Unless otherwise
indicated in the prospectus supplement, if dividends in an amount
equal to six quarterly dividend payments have accrued and have
not been paid on the preferred stock, the holders of the
preferred stock will have the right to a separate class vote,
together with the holders of shares of other series of stock of
equal rank upon which like voting rights have been conferred and
are exercisable, to elect two members to our board of directors
at the next annual meeting of stockholders. These rights will
continue until dividends on the preferred stock have been paid in
full or have been declared and set apart in trust for payment.
If the holders of any series of preferred stock become entitled
to these voting rights, our board of directors will be increased
by two members.
Additionally, unless we indicate otherwise in our prospectus
supplement, we cannot take the following actions without the
affirmative vote or consent of the holders of two-thirds of the
shares of preferred stock of the series outstanding voting as a
separate class:
. issue any stock ranking prior to the preferred stock of
the series with respect to dividends or liquidation
preference, or
. amend our certificate of incorporation to materially and
adversely affect any right, preference, privilege or
voting power.
The holders of a series of preferred stock will not have the
right to vote on any amendment to our certificate of
incorporation to authorize other series of our stock ranking
equal or junior to the preferred stock as to dividends or
liquidation preference.
If we decide to issue depositary shares, each representing a
fraction of a share of a series of the preferred stock, each
depositary share will in effect be entitled to that fraction of a
vote.
Outstanding Preferred Stock
We have summarized below the general terms of each series of
our preferred stock that was outstanding on the date of this
prospectus. Each series ranks equally with each other series,
and ranks senior to our class A and class B common stock, as to
payment of dividends and liquidating distributions. All
outstanding series of our preferred stock has the right to vote
with the holders of our class A common stock, voting together as
a single class, to elect that number of directors equal to 20
percent of the authorized number of members of our board of
directors (or the nearest lower whole number). In addition, all
outstanding series of our preferred stock have the voting rights
described above under the heading "Voting."
Step-Up Convertible Preferred Stock. As of the date of this
prospectus, 699,980 shares of step-up convertible preferred
stock, par value $0.10 per share, were outstanding. The step-up
convertible preferred stock is represented by depositary shares.
Each depositary share represents 0.05 shares of the stock. The
depositary shares trade on the New York Stock Exchange.
13,999,600 depositary shares were outstanding as of the date of
this prospectus.
The step-up convertible preferred stock has the following
terms:
. a liquidation preference equal to $25.00 per depositary
share;
. convertible into our class A common stock at the option
of the holder at any time at a rate of 0.835 shares of
class A common stock per depositary share;
. cumulative dividends, payable quarterly, equal to $1.75
per year per depositary share;
. redeemable at our option at a redemption price equal to
$25.00 per depositary share, plus accrued and unpaid
dividends. We may choose to pay the redemption price
in cash. We also may choose to pay all or a portion of
the redemption price in class A common stock if the
class A common stock is then listed on a national or
regional securities exchange or reported by Nasdaq.
Any accrued and unpaid dividends must be paid in cash.
Gold-Denominated Preferred Stock. As of the date of this
prospectus, 300,000 shares of gold-denominated preferred stock
and 215,279 shares of gold-denominated preferred stock, series
II, were outstanding. Both series are represented by depositary
shares. Each depositary share represents 0.05 shares of the
stock. The depositary shares are traded on the New York Stock
Exchange. 6,000,000 depositary shares representing the gold-
denominated preferred stock and 4,305,580 depositary shares
representing the gold-denominated preferred stock, series II were
outstanding as of the date of this prospectus.
The gold-denominated preferred stock and the gold-
denominated preferred stock, series II have the following terms:
. a liquidation preference equal to the dollar value of
0.10 ounces of gold per depositary share plus accrued
and unpaid dividends;
. on the gold-denominated preferred stock: cumulative
dividends payable quarterly in an amount equal to the
dollar value of 0.000875 ounces of gold per depositary
share;
. on the gold-denominated preferred stock, series II:
cumulative dividends payable quarterly in an amount
equal to the dollar value of 0.0008125 ounces of gold
per depositary share;
. except as stated below, mandatory redemption by us on
August 1, 2003 for the gold-denominated preferred stock
and on February 1, 2006 for the gold-denominated
preferred stock, series II at an amount equal to the
dollar value of 0.10 ounces of gold per depositary
share plus accrued and unpaid dividends;
. except as stated below, optional redemption by us of
all, but not part, of each series, only if the number
of outstanding shares of the series at any dividend
payment date is less than 15 percent of the total
amount of shares originally issued in that series, at a
redemption price equal to its liquidation preference,
plus accrued and unpaid dividends;
. we may not mandatorily or optionally redeem either
series unless cumulative dividends for all past
dividend periods have been paid or declared and
set aside for payment on the series and all other
shares ranking equally as to dividends.
The dollar value of an ounce of gold is equal to the average
of the London P.M. gold fixing price for an ounce of gold on the
number of days prior to the date of determination specified in
the certificate of designation.
Silver-Denominated Preferred Stock. As of the date of this
prospectus, 104,125 shares of silver-denominated preferred stock
were outstanding. The silver-denominated preferred stock is
represented by depositary shares. Each depositary share
originally represented 0.025 shares of the stock and as of the
date of this prospectus represented 0.021875 shares of the stock.
The depositary shares are traded on the New York Stock Exchange.
4,760,000 depositary shares were outstanding as of the date of
this prospectus.
The silver-denominated preferred stock has the following
terms:
. a liquidation preference originally equal to the dollar
value of 4.0 ounces of silver per depositary share,
plus accrued and unpaid dividends, which is reduced to
account for the effects of the mandatory redemptions
described below;
. cumulative dividends payable quarterly originally in an
amount equal to the dollar value of 0.04125 ounces of
silver per depositary share, which is reduced to
account for the effects of the mandatory redemptions
described below;
. beginning on August 1, 1999, except as stated below,
mandatory redemption by us annually of a number of
shares equal to one-eighth of the 119,000 shares
originally issued, at an amount equal to the dollar
value of 4.0 ounces of silver per depositary share,
plus accrued and unpaid dividends;
. except as stated below, optional redemption by us of
all but not part of the series, only if the total
number of shares of the series outstanding at any time
is less than 15 percent of the total number of shares
of silver-denominated preferred stock originally
issued, at a redemption price equal to the liquidation
preference, plus accrued and unpaid dividends;
. we may not mandatorily or optionally redeem the
silver-denominated preferred stock unless
cumulative dividends for all past dividend periods
have been paid or declared and set aside for
payment on all shares of silver-denominated
preferred stock and all outstanding shares of
capital stock of equal rank as to dividends.
The dollar value of an ounce of silver is equal to the
average of the London silver fixing price for an ounce of silver
on the number of days prior to the date of determination
specified in the certificate of designation.
On each annual redemption date, the depositary will
distribute pro rata to holders of depositary receipts
representing the depositary shares the aggregate amount paid to
the depositary by us for the redemption of the underlying silver-
denominated preferred stock. However, the depositary will not
redeem the depositary receipts. After each annual redemption
date, the number of shares of the preferred stock represented by
the depositary shares, the liquidation preference and the
quarterly dividend payable on each depositary share will be
reduced to account for the one-eighth reduction in the number of
shares of the silver-denominated preferred stock outstanding.
DESCRIPTION OF DEPOSITARY SHARES
We summarize below some of the provisions that will apply to
the depositary shares unless the applicable prospectus supplement
provides otherwise. The summary may not contain all information
that is important to you. The complete terms of the depositary
shares will be contained in the depositary receipts and the
deposit agreement relating to the applicable series of preferred
stock. These documents have been or will be included or
incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. You should read
the depositary receipts and the depositary agreement. You should
also read the prospectus supplement, which will contain
additional information and which may update or change some of the
information below.
General
We may, at our option, elect to have shares of preferred
stock represented by depositary shares. The shares of any series
of preferred stock underlying the depositary shares will be
deposited under a separate deposit agreement that we will enter
into with a bank or trust company of our choosing. The
prospectus supplement relating to a series of depositary shares
will give the name and address of the depositary. Subject to the
terms of the deposit agreement, each owner of a depositary share
will be entitled to all the rights and preferences of the
preferred stock underlying the depositary share in proportion to
the applicable interest in the preferred stock underlying the
depositary share.
The depositary shares will be evidenced by depositary
receipts issued pursuant to the deposit agreement. Each
depositary share will represent the applicable interest in a
number of shares of a particular series of the preferred stock
described in the applicable prospectus supplement.
Unless otherwise provided in the applicable prospectus
supplement, upon surrender of depositary shares at the office of
the depositary and upon payment of the charges provided in the
deposit agreement, a holder of depositary shares will be entitled
to the number of whole shares of preferred stock evidenced by the
surrendered depositary shares.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other
cash distributions received in respect of the preferred stock to
the record holders of depositary shares representing the
preferred stock in proportion to the number of the depositary
shares owned by the holders on the relevant record date.
In the event of a distribution other than in cash, the
depositary will distribute the property received by it to the
record holders of depositary shares entitled to the property.
Alternatively, the depositary may, with our approval, sell the
property and distribute the net proceeds from the sale to the
record holders of depositary shares.
The deposit agreement will also contain provisions relating
to the manner in which any subscription or similar rights we
offer to holders of preferred stock will be made available to
holders of depositary shares.
Conversion and Exchange
If any preferred stock underlying depositary shares is
convertible or exchangeable, each record holder of depositary
shares will have the right or obligation to convert or exchange
the depositary shares in the manner provided in the deposit
agreement and described in the applicable prospectus supplement.
Redemption
If the preferred stock underlying depositary shares is
subject to redemption, the depositary shares will be redeemed
from the redemption proceeds received by the depositary. The
redemption price per depositary share will be equal to the
aggregate redemption price payable with respect to the number of
shares of preferred stock underlying the depositary shares.
Whenever we redeem preferred stock from the depositary, the
depositary will redeem as of the same redemption date a
proportionate number of depositary shares representing the shares
of preferred stock that we redeemed. If less than all the
depositary shares are to be redeemed, the depositary shares to be
redeemed will be selected by lot or pro rata as we may determine.
After the date fixed for redemption, the depositary shares
called for redemption will no longer be deemed to be outstanding
and all rights of the holders of the depositary shares will
cease, except the right to receive the redemption price. Any
funds we deposit with the depositary for any depositary shares
which the holders fail to redeem will be returned to us after two
years from the date the funds are deposited.
Voting
Upon receipt of notice of any meeting or action in lieu of
any meeting at which the holders of any shares of preferred stock
underlying the depositary shares are entitled to vote, the
depositary will mail the information contained in the notice to
the record holders of the depositary shares relating to the
preferred stock. Each record holder of the depositary shares on
the record date, which will be the same date as the record date
for the preferred stock, will be entitled to instruct the
depositary as to the exercise of the voting rights pertaining to
the number of shares of preferred stock underlying the holder's
depositary shares. The depositary will endeavor, insofar as
practicable, to vote the number of shares of preferred stock
underlying the depositary shares in accordance with these
instructions, and we will agree to take all action that the
depositary deems necessary to enable the depositary to do so.
Amendment
The depositary receipt evidencing the depositary shares and
any provision of the deposit agreement may at any time be amended
by agreement between us and the depositary. However, any
amendment that materially and adversely alters the rights of the
existing holders of depositary shares will not be effective
unless the amendment has been approved by the record holders of
at least a majority of the depositary shares then outstanding.
Charges of Depositary
We will pay all transfer and other taxes and governmental
charges that arise solely from the existence of the depositary
arrangements. We will pay charges of the depositary in
connection with the initial deposit of the preferred stock and
any exchange or redemption of the preferred stock. Holders of
depositary shares will pay all other transfer and other taxes and
governmental charges, and, in addition, any other charges that
are expressly provided in the deposit agreement to be for their
accounts.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us
notice of its election to do so, and we may at any time remove
the depositary. Any resignation or removal will take effect
upon the appointment of a successor depositary and its acceptance
of the appointment. We will appoint the successor depositary
within 60 days after delivery of the notice of resignation or
removal.
Termination of Deposit Agreement
The depositary may terminate, or we may direct the
depositary to terminate, the deposit agreement if 60 days has
expired after the depositary has delivered to us written notice
of its election to resign and we have not appointed a successor
depositary. Upon termination of the deposit agreement, the
depositary will discontinue the transfer of depositary receipts,
will suspend the distribution of dividends, and will not give any
further notices (other than notice of the termination) or perform
any further acts under the deposit agreement. However, the
depositary will continue to deliver preferred stock certificates,
together with dividends and distributions and the net proceeds of
any sales of property, in exchange for depositary receipts
surrendered. Upon our request, the depositary will deliver to us
all books, records, certificates evidencing preferred stock,
depositary receipts and other documents relating to the deposit
agreement.
Miscellaneous
We, or at our option the depositary, will forward to the
holders of depositary shares all reports and communications that
we are required to furnish to the holders of preferred stock.
Neither we nor the depositary will be liable if the
depositary is prevented or delayed by law or any circumstance
beyond its control in performing its obligations under the
deposit agreement. Our obligations and those of the depositary
under the deposit agreement will be limited to performance in
good faith of our respective duties under the deposit agreement.
Neither we nor the depositary will be obligated to prosecute or
defend any legal proceeding regarding any depositary share or
preferred stock unless satisfactory indemnity has been furnished.
We and the depositary may rely upon written advice of counsel or
accountants. We and the depositary may also rely upon
information provided to us by persons presenting preferred stock
for deposit, holders of depositary shares or other persons we or
the depositary believe to be competent. We and the depositary
may also rely upon documents we believe to be genuine.
DESCRIPTION OF DEBT SECURITIES
General
We may issue debt securities from time to time in one or
more series. Debt securities will be our unsecured obligations
and will be designated as:
. senior securities;
. senior subordinated securities; or
. subordinated securities.
Senior securities, senior subordinated securities and
subordinated securities will each be issued under separate
indentures we enter into with a trustee.
We have summarized below some of the provisions that will
apply to the debt securities unless the applicable prospectus
supplement provides otherwise. The summary may not contain all
information that is important to you. The complete terms of the
debt securities will be contained in the applicable indenture and
note. These documents have been or will be included or
incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. You should read
the indenture and the note. You should also read the prospectus
supplement, which will contain additional information and which
may update or change some of the information below.
A principal difference between the indentures are provisions
relating to subordination. The "subordination" of a series of
debt securities is the degree to which holders of the debt
securities are subordinated in right of payment to our other
obligations. The senior securities will rank equally with all of
our other senior unsecured debt. Senior subordinated securities
and subordinated securities will be subordinated in right of
payment to the prior payment in full of the senior securities and
our other senior indebtedness. Subordinated securities will also
be subordinated in right of payment to the prior payment in full
of any outstanding senior subordinated securities. The
subordination provisions of the senior subordinated securities
and subordinated securities are discussed in greater detail below
under "- Subordination of Senior Subordinated Securities and
Subordinated Securities."
Unless we state otherwise in the related prospectus
supplement, the indentures will not contain provisions that (1)
limit the total amount of debt that we or any of our subsidiaries
may issue or incur, (2) limit our ability or the ability of any
of our subsidiaries to incur secured indebtedness, or (3) limit
our ability or the ability of any of our subsidiaries to pay
dividends or make other distributions or payments. Also, unless
we state otherwise in the related prospectus supplement, the
indentures will not contain provisions that would afford you, as
a holder of the debt securities, protection if we were to undergo
a change in control or enter into a highly leveraged transaction,
recapitalization or similar transaction, any of which could
adversely affect your rights as a holder of the debt securities.
We may issue debt securities under each indenture from time
to time in separate series up to the aggregate amount specified
in the indenture.
We will describe the specific terms of the series of debt
securities being offered in the related prospectus supplement.
These terms will include some or all of the following:
. the title of the debt securities and whether the debt
securities are senior securities, senior subordinated
securities or subordinated securities;
. any limit on the aggregate principal amount of the debt
securities;
. whether the debt securities will be issued as
registered debt securities, bearer debt securities or
both, any limitation on issuance of bearer debt
securities and provisions regarding the transfer or
exchange of bearer debt securities;
. whether any of the debt securities are to be issuable
as a global security and whether global securities are
to be issued in temporary global form or permanent
global form;
. the person to whom any interest on the debt security
will be payable if other than the person in whose name
the debt security is registered on the record date;
. the date or dates on which the debt securities will
mature;
. the rate or rates of interest, if any, that the debt
securities will bear, or the method of calculation of
the interest rate or rates;
. the date or dates from which any interest on the debt
securities will accrue, the dates on which any interest
will be payable and the record date for any interest
payable on any interest payment date;
. the place or places where the principal of, interest,
premium and additional amounts (if any) on the debt
securities will be payable;
. whether we will have the right or obligation to redeem
or repurchase any of the debt securities, and the terms
applicable to any optional or mandatory redemption or
repurchase;
. the denominations in which the debt securities will be
issuable;
. any index or formula used to determine the amount of
payments of principal of and any premium, additional
amounts (if any) and interest on the debt securities;
. the currency or currencies or currency units or
composite currencies in which the principal of and any
premium, additional amounts (if any) and interest on
the debt securities will be made (if other than U.S.
dollars);
. if the principal of or any premium, additional amounts
(if any) or interest on the debt securities may be paid
in a different currency or currencies or currency units
or composite currencies at our option or the option of
the holder, the currency or currencies or currency
units or composite currencies in which these payments
may be made and the terms and conditions applicable to
the payments;
. if other than the principal amount, the portion of the
principal amount of the debt securities that will be
payable if there is an acceleration of the maturity of
the debt securities;
. if the debt securities are convertible into other
securities, the conversion price, the period during
which the debt securities may be converted and other
terms of conversion;
. any sinking fund provisions applicable to the debt
securities;
. the extent to which the provisions described under "-
Certain of Our Covenants" below will apply to the debt
securities, and whether the indenture includes any
additional restrictive covenants for the benefit of the
holders of the debt securities;
. the extent to which the provisions described under "-
Events of Default with Respect to the Debt Securities"
below will apply to the debt securities, and the extent
to which the provisions have been supplemented or
modified;
. the extent to which the provisions described under "-
Defeasance" below will apply to the debt securities;
and
. any other terms of the debt securities not inconsistent
with the provisions of the respective indentures.
Debt securities may bear interest at a fixed rate or a
floating rate, or may not bear interest. Debt securities bearing
no interest or interest at a rate that at the time of issuance is
below the prevailing market rate may be sold at a discount (which
may be significant) below their stated principal amount. We will
describe in the related prospectus supplement special United
States federal income tax considerations applicable to any
discounted debt securities or to debt securities issued at par
that are treated as having been issued at a discount for United
States federal income tax purposes.
If the purchase price of any of the debt securities is
denominated in a foreign currency or currencies or currency units
or composite currencies or if payments may be made in a foreign
currency or currencies or currency units or composite currencies,
we will set forth the general tax considerations with respect to
these debt securities in the related prospectus supplement.
Subordination of Senior Subordinated Securities and Subordinated
Securities
The indebtedness evidenced by the senior subordinated
securities and the subordinated securities will be subordinated
and junior in right of payment to the extent described in the
related indenture to the prior payment in full of amounts then
due on all of our senior indebtedness (as defined below),
including the senior securities. The subordinated securities
will also be subordinated and junior in right of payment to the
prior payment in full of all amounts then due on any outstanding
senior subordinated securities. Thus, if you hold senior
subordinated securities or subordinated securities:
. you will not be entitled to receive any payments of
principal (or premium or additional amounts, if any) or
interest on your debt securities until all amounts due
have been paid on our senior indebtedness
. in the event of any voluntary or involuntary
insolvency or bankruptcy proceedings, or any
receivership, dissolution, winding-up, total
or partial liquidation, reorganization or
other similar proceeding; or
. if there is any default with respect to the
principal (or premium or additional amounts,
if any) or interest of any of our senior
indebtedness or any acceleration of any of
our senior indebtedness; and
. you will not be entitled to receive assets or money in
respect of payments of principal (or premium or
additional amounts, if any) or interest due on your
debt securities in connection with a voluntary or
involuntary receivership, dissolution, winding-up,
liquidation, reorganization, bankruptcy, insolvency or
similar proceeding until our senior indebtedness has
been paid in full.
With respect to any series of senior subordinated securities
or subordinated securities, "senior indebtedness" means the
principal of (and premium or additional amounts, if any) and
interest on all of our indebtedness (as defined below), whether
outstanding on the date of the related indenture or created,
incurred or assumed after the date of the related indenture,
other than
. the indebtedness represented by the senior subordinated
securities or subordinated securities and
. any particular indebtedness that expressly states in
its governing terms (or in our assumption or guarantee)
that it is not senior in right of payment to the senior
subordinated securities or the subordinated securities,
as the case may be, or that the indebtedness ranks
equal to or junior to the senior subordinated
securities or the subordinated securities.
Our "indebtedness" includes all of our obligations
. for borrowed money;
. that are evidenced by a bond, debenture, note or
similar instrument;
. with respect to letters of credit or similar
instruments;
. to pay the deferred purchase price of any property or
services (other than trade payables);
. as lessee under leases we are required to capitalize on
our balance sheet under generally accepted accounting
principles;
. any indebtedness of others secured by a lien on our
assets, whether or not we have assumed the
indebtedness; and
. any indebtedness of others that we have guaranteed.
Each series of senior subordinated securities will be
"senior indebtedness" with respect to each series of subordinated
securities. As of December 31, 1999, our senior indebtedness was
approximately $1,263,000,000. If this prospectus is being
delivered in connection with a series of senior subordinated
securities or subordinated securities, we will describe in the
accompanying prospectus supplement or the information
incorporated by reference the approximate amount of senior
indebtedness outstanding as of the end of our most recent fiscal
quarter.
Convertible Debt Securities
We may issue debt securities from time to time that are
convertible into our class A common stock, class B common stock,
preferred stock or other securities. If you hold convertible
debt securities, you will be permitted at certain times specified
in the related prospectus supplement to convert your debt
securities into the other securities for a specified price. We
will describe the conversion price (or the method for determining
the conversion price) and the other terms applicable to
conversion in the related prospectus supplement.
Debt Securities with Payment Terms Tied to Commodities,
Currencies or Indices
We may issue debt securities with payment terms that are
calculated by reference to the value, rate or price of one or
more commodities, currencies, currency units, composite
currencies or indices. If you hold these debt securities, you
may receive payments of principal or any premium, additional
amounts (if any) or interest on any payment date that are greater
than or less than the amounts that would otherwise be payable to
you, depending upon the fluctuations in the value, rate or price
of the applicable commodity, currency, currency unit, composite
currency or index. We will include in the applicable prospectus
supplement information as to the methods for determining the
amount of principal, premium, additional amounts (if any) or
interest payable on any date, the referenced commodities,
currencies, currency units or composite currencies or indices and
additional tax considerations.
Form, Exchange, Registration and Transfer of Debt Securities
Debt securities are issuable in definitive form as
registered debt securities, as bearer debt securities or both.
Unless we state otherwise in the related prospectus supplement,
bearer debt securities will have interest coupons attached. Debt
securities are also issuable in temporary or permanent global
form.
Registered debt securities of any series will be
exchangeable for other registered debt securities of the same
series and of a like aggregate principal amount and tenor of
different authorized denominations.
If you hold bearer debt securities of any series, at your
option and subject to the terms of the indenture, you may
exchange them (with all unmatured coupons, except as provided
below, and all matured coupons in default) for registered debt
securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor. Bearer debt
securities that you surrender in exchange for registered debt
securities between a record date and the relevant date for
payment of interest must be surrendered without the coupon
relating to that date for payment of interest. Interest accrued
as of that date will not be payable in respect of the registered
debt security issued in exchange for the bearer debt security,
but will be payable only to the holder of the coupon when due in
accordance with the terms of the indenture.
You may only present bearer debt securities for exchange at
one of our offices or agencies maintained for that purpose
located outside the United States and referred to in the
applicable prospectus supplement. You may present registered
debt securities for registration of transfer at any office or
agency maintained for that purpose. If the debt securities are
registered debt securities, you must execute the form of transfer
on the debt security. We will list the offices or agencies
maintained for exchange and registration of transfer in the
related prospectus supplement. You will not be required to pay
any service charge in connection with an exchange or transfer,
but you may be required to pay taxes and other governmental
charges. We or our agent will not effect an exchange or transfer
unless we are satisfied, or our agent is satisfied, with the
documents of title and identity of the person making the request.
In the event of any partial redemption of debt securities,
we will not be required to
. issue, register the transfer of or exchange debt
securities of any series during the period beginning at
the opening of business 15 days prior to the selection
of debt securities of that series for redemption and
ending on the close of business on
(1) if debt securities of the series are issued only
as registered debt securities, the day the
relevant notice of redemption is mailed and
(2) if debt securities of the series are issued as
bearer debt securities, the day of the first
publication of the relevant notice of redemption,
except that, if debt securities of the series are
also issued as registered debt securities and
there is no publication, the day the relevant
notice of redemption is mailed;
. register the transfer of or exchange any registered
debt security, or portion of any registered debt
security, called for redemption, except the unredeemed
portion of any registered debt security being redeemed
in part; or
. exchange any bearer debt security called for
redemption, except to exchange that bearer debt
security for a registered debt security of that series
and like tenor which is simultaneously surrendered for
redemption.
Payment and Paying Agents
Unless we state otherwise in the applicable prospectus
supplement, payment of principal of (and any premium), additional
amounts (if any) and interest on bearer debt securities will be
payable, subject to any applicable laws and regulations, in the
designated currency, at the offices of the paying agents outside
the United States as we may designate from time to time by check
or by transfer to an account you maintain with a bank located
outside the United States. Unless we state otherwise in the
applicable prospectus supplement, to receive an interest payment
with respect to a bearer debt security on a particular interest
payment date you will be required to surrender the related coupon
to the paying agent. No payment with respect to any bearer debt
security will be made at any of our offices or agencies in the
United States or by check mailed to any address in the United
States, by transfer to any account maintained with a bank located
in the United States, nor shall any payments be made in respect
of bearer debt securities upon presentation to us or our paying
agents within the United States. Notwithstanding the foregoing,
payments of principal of (and any premium) and interest on bearer
debt securities denominated and payable in U.S. dollars will be
made at the office of our paying agent in the United States, if
(but only if) payment of the full amount thereof in U.S. dollars
at all offices or agencies outside the United States is illegal
or effectively precluded by exchange controls or other similar
restrictions.
Unless we state otherwise in the applicable prospectus
supplement, payment of principal of (and any premium), additional
amounts (if any) and interest on registered debt securities will
be made in the designated currency at the office of our paying
agent or paying agents as we may designate from time to time.
However, we may make payment, at our option, by check mailed to
the address of the person entitled to these payments as the
person's address appears on the records of the security
registrar. Unless we state otherwise in the applicable
prospectus supplement, payment of any installment of interest on
registered debt securities will be made to the person in whose
name the registered debt security is registered at the close of
business on the record date for the interest.
Unless we state otherwise in the applicable prospectus
supplement, the corporate trust office of the trustee will be
designated as a paying agent for the trustee for payments with
respect to debt securities that are issuable solely as registered
debt securities. We will maintain a paying agent outside the
United States for payments with respect to debt securities that
are issued solely as bearer debt securities, or as both
registered debt securities and bearer debt securities. Any
paying agents outside the United States and any other paying
agents in the United States we initially designate for the debt
securities will be named in the related prospectus supplement.
We may at any time designate additional paying agents or rescind
the designation of any paying agent or approve a change in the
office through which any paying agent acts. However, if debt
securities of a series are issued solely as registered debt
securities, we will be required to maintain a paying agent in
each place of payment for the series. If debt securities of a
series are issued as bearer debt securities, we will be required
to maintain
. a paying agent in the United States for payments with
respect to any registered debt securities of the series
(and for payments with respect to bearer debt
securities of the series in the circumstances where
payment outside the United States is illegal or
effectively precluded, but not otherwise); and
. a paying agent in a place of payment located outside
the United States where debt securities of the series
and any related coupons may be presented and
surrendered for payment.
All amounts we pay to a paying agent for the payment of
principal of and any premium, additional amounts (if any) or
interest on any debt security which you hold or with respect to
which you hold any coupon that remain unclaimed at the end of two
years after the principal, premium or interest shall have become
due and payable will (subject to applicable escheat laws) be
repaid to us, and you will thereafter have to look only to us for
payment.
Temporary Global Securities
If we so state in the applicable prospectus supplement, all
or any portion of the debt securities of a series that are
issuable as bearer debt securities will initially be represented
by one or more temporary global debt securities, without interest
coupons, which will be deposited with a common depository in
London for the Euroclear System ("Euroclear") and CEDEL Bank S.A.
("CEDEL") for credit to the designated accounts.
On and after the date determined as provided in the
temporary global debt security, the temporary global debt
security will be exchangeable for definitive bearer debt
securities, definitive registered debt securities or all or a
portion of a permanent global security, or any combination, as
specified in the applicable prospectus supplement. No bearer
debt security delivered in exchange for a portion of a temporary
global debt security will be mailed or otherwise delivered to any
location in the United States in connection with the exchange.
Unless we state otherwise in the applicable prospectus
supplement, interest in respect of any portion of a temporary
global debt security payable in respect of a payment date
occurring prior to the issuance of definitive debt securities or
a permanent global subordinated security will be paid to each of
Euroclear and CEDEL with respect to the portion of the temporary
global debt security held for its account.
Permanent Global Securities
If any debt securities of a series are issuable in permanent
global form, we will describe in the applicable prospectus
supplement the circumstances, if any, under which beneficial
owners of interests in the permanent global debt securities may
exchange the interests for debt securities of the series and of
like tenor and principal amount in any authorized form and
denomination. No bearer debt security delivered in exchange for
a portion of a permanent global debt security will be mailed or
otherwise delivered to any location in the United States in
connection with the exchange. Notwithstanding the foregoing,
unless we state otherwise in an applicable prospectus supplement,
if you hold an interest in a permanent global bearer debt
security, you may exchange your interest in whole (but not in
part) at our expense for definitive bearer debt securities.
Book-Entry Debt Securities
The debt securities of a series may be issued in whole or in
part in the form of one or more global securities that will be
deposited with, or on behalf of, a depositary or its nominee
identified in the applicable prospectus supplement. In this
case, one or more global securities will be issued in a
denomination or aggregate denominations equal to the portion of
the aggregate principal amount of outstanding debt securities of
the series to be represented by the global security or
securities. Unless we state otherwise in the applicable
prospectus supplement, unless and until it is exchanged in whole
or in part for debt securities in registered form, a global
security may not be registered for transfer or exchange except as
a whole by the depositary to a nominee of that depositary or to a
successor depositary.
We will describe the specific terms of the depositary
arrangement with respect to any portion of a series of debt
securities to be represented by a global security in the
applicable prospectus supplement. We expect that the following
provisions will generally apply.
Unless we state otherwise in the applicable prospectus
supplement, debt securities which are to be represented by a
global security to be deposited with or on behalf of a depositary
will be represented by a global security registered in the name
of that depositary or its nominee. Upon the issuance of the
global security, and the deposit of the global security with or
on behalf of the depositary, the depositary will credit, on its
book-entry registration and transfer system, the respective
principal amounts of the debt securities represented by the
global security to the accounts of institutions that have
accounts with the depositary or its nominee ("participants").
The accounts to be credited will be designated by the
underwriters or agents of the debt securities or by us, if we
offer and sell the debt securities directly. Ownership of
beneficial interests in the global security will be limited to
participants or persons that hold interests through participants.
Ownership of beneficial interests by participants in the global
security will be shown on, and the transfer of that ownership
interest will be effected only through, records maintained by the
depositary or its nominee. If you hold a beneficial interest in
a global security through a participant, your ownership interest
will be shown on, and the transfer of your ownership interest
will be effected only through, records maintained by that
participant.
The laws of some jurisdictions require that some purchasers
of securities take physical delivery of the securities in
certificated form. If you own a beneficial interest in a global
security, these laws may impair your ability to transfer your
beneficial interest.
So long as the depositary for a global security, or its
nominee, is the registered owner of the global security, the
depositary or nominee will be considered the sole owner or holder
of the debt securities represented by the global security for all
purposes under the related indenture. Unless we state otherwise
in the applicable prospectus supplement, if you own a beneficial
interest in a global security
. you will not be entitled to have debt securities of the
series represented by the global security registered in
your name;
. you will not receive or be entitled to receive physical
delivery of debt securities of the series in
certificated form; and
. you will not be considered the holder of the debt
securities for any purposes under the applicable
indenture.
Accordingly, if you own a beneficial interest in a global
security, you will have to rely on the procedures of the
depositary and, if you are not a participant, on the procedures
of the participant through which you own your interest, to
exercise any of your rights as a holder. We understand that
under existing industry practices, if we request any action of
holders or if you desire to give any notice or take any action
you are entitled to give or take under an indenture, the
depositary would authorize the participant through which you hold
your interest to give the notice or take the action, and the
participant would in turn authorize you to give the notice or
take the action or would otherwise act upon your instructions.
However, we have no control over the practices of the depositary
or the participants, and there can be no assurance that these
practices will not be changed.
Principal of and any premium, additional amounts and
interest on a global security will be payable in the manner we
describe in the applicable prospectus supplement.
Limitations on the Issuance of Bearer Debt Securities
In compliance with United States Federal tax laws and
regulations, we will not offer or sell bearer debt securities
(including securities in permanent global form that are either
bearer debt securities or exchangeable for bearer debt
securities) during the "restricted period" specified by the
United States Treasury Regulations within the United States or to
United States persons (as defined below). The "restricted
period" is, generally, the first 40 days after the closing date,
and with respect to unsold allotments, until sold. We may,
however, offer or sell bearer debt securities to an office
located outside the United States of a United States financial
institution purchasing for its own account, for resale or for the
accounts of customers. We will require the financial institution
to provide a certificate stating that it will comply with laws
and regulations relating to the bearer debt securities.
Moreover, the bearer debt securities will not be delivered within
the United States during the restricted period in connection with
any sale.
We will require any underwriters and dealers participating
in an offering of bearer debt securities to agree not to offer or
sell bearer debt securities within the United States or to United
States persons (other than the persons described above) during
the restricted period, or to deliver bearer debt securities
within the United States during the restricted period in
connection with any sale. We will also require these
underwriters and dealers to certify that they have in effect
procedures reasonably designed to ensure that their employees and
agents who are directly engaged in selling the bearer debt
securities are aware of these restrictions.
We will not deliver a bearer debt security (other than a
temporary global bearer debt security) in connection with its
original issuance or pay interest on any bearer debt security
until we have received the written certification provided for in
the indenture. Each bearer debt security, other than a temporary
global bearer debt security, will bear a legend similar to the
following: "Any United States person who holds this obligation
will be subject to limitations under the United States Federal
income tax laws, including the limitations provided in Sections
165(j) and 1287(a) of the Internal Revenue Code."
As used above, "United States person" means any citizen or
resident of the United States, any corporation, partnership or
other entity created or organized in or under the laws of the
United States and any estate or trust the income of which is
subject to United States federal income taxation regardless of
its source, and "United States" means the United States of
America (including the states and the District of Columbia) and
its possessions.
Certain of Our Covenants
Unless we state otherwise in the applicable prospectus
supplement, we will agree under the indentures not to consolidate
with or merge into any individual, corporation, partnership or
other entity (each, a "person'), or sell, lease, convey, transfer
or otherwise dispose of all or substantially all of our assets to
any person, or permit any person to consolidate or merge into us
or sell, lease, convey, transfer or otherwise dispose of all or
substantially all of its assets to us unless:
. the person formed by or surviving the consolidation or
merger (if not us), or to which the sale, lease,
conveyance, transfer or other disposition is to be made
is a corporation, limited liability company or
partnership organized and existing under the laws of
the United States or any state or the District of
Columbia, and the person assumes by supplemental
indenture in a form satisfactory to the trustee all of
our obligations under the indenture;
. immediately after giving effect to the transaction and
treating any debt that becomes an obligation of ours or
of any of our subsidiaries as a result as having been
incurred by us or our subsidiary at the time of the
transaction, no default or event of default shall have
occurred and be continuing; and
. we have delivered to the trustee an officer's
certificate and opinion of counsel, each stating that
the merger, consolidation, sale or conveyance and the
supplemental indenture, if any, comply with the
indenture.
Events of Default with Respect to the Debt Securities
Unless we state otherwise in the applicable prospectus
supplement, an "event of default" is defined under each indenture
with respect to debt securities of any series issued under such
indenture as being:
. our default for 30 days in payment of any interest or
additional amounts, if any, on the debt securities of
the series or any related coupon;
. our default in payment of any principal on the debt
securities of the series upon maturity or otherwise;
provided that, if the default is a result of the
voluntary redemption by the holders of the debt
securities, the amount of the default must be in excess
of $50 million (or the equivalent in any other
currency);
. our default, for 60 days after delivery of written
notice, in the observance or performance of any other
agreement in the debt securities of the series or the
indenture, other than an agreement included in the
indenture that is not applicable to the debt securities
of that series;
. bankruptcy, insolvency or reorganization events
relating to us; or
. our failure to pay at maturity, or other default by us
which results in acceleration of, debt in an amount in
excess of $50 million (or the equivalent in any other
currency), without the debt having been discharged or
the acceleration having been cured, waived, rescinded
or annulled for 30 days after written notice. "Debt"
for this purpose means our obligation, or obligations
we have guaranteed or assumed, for borrowed money or
evidenced by bonds, debentures, notes or other similar
instruments, other than non-recourse obligations or the
debt securities of the series.
The consequences of an event of default, and the remedies
available under the indenture, will vary depending upon the type
of event of default that has occurred.
Unless we state otherwise in the applicable prospectus
supplement, each indenture will provide that if an event of
default has occurred and is continuing and is due to
. our failure to pay principal, premium or additional
amounts, if any, or interest on, any series of debt
securities under the indenture
. our default in the performance of any other agreement
applicable to outstanding debt securities of one or
more series issued under the indenture,
. our failure to pay at maturity, or other default which
results in the acceleration of, any debt in an amount
in excess of the dollar amount listed in the indenture,
then either the trustee or the holders of not less than 25
percent in principal amount of the outstanding debt securities of
each affected series (each series treated as a separate class)
may declare the principal (or the portion of the principal that
is specified in the terms of the debt securities) of all the
affected debt securities of the series and interest accrued to be
due and payable immediately.
Unless we state otherwise in the applicable prospectus
supplement, each indenture will provide that if an event of
default has occurred and is continuing and is due to a
bankruptcy, insolvency or reorganization event relating to us,
then the principal (or such portion of the principal as is
specified in the terms of the debt securities) of and interest
accrued on all debt securities then outstanding will become due
and payable automatically, without further action by the trustee
or the holders.
Under conditions specified in the indenture, the holders of
a majority of the principal amount of the debt securities of each
affected series (each series treated as a separate class) may
annul or waive the declarations and past defaults described
above. These holders may not, however, waive a continuing
default in payment of principal of (or premium, if any) or
interest on, or in respect of the conversion of, debt securities.
Each indenture provides that the trustee, subject to the
duty of the trustee during a default to act with the required
standard of care, has no obligation to exercise any right or
power granted to it under the indenture at the request of holders
of debt securities unless the holders have indemnified the
trustee. Subject to the provisions in each indenture for the
indemnification of the trustee and other limitations in the
indenture, the holders of a majority in principal amount of the
outstanding debt securities of each affected series issued under
the indenture (each series treated as a separate class) may
direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust
or power conferred on the trustee with respect to the series.
If you hold debt securities of any series, you will not be
permitted under the terms of the indenture to institute any
action against us in connection with any default (except actions
for payment of overdue principal, premium and additional amounts,
(if any) or interest or to enforce conversion rights (if any))
unless
. you have given the trustee written notice of the
default and its continuance;
. holders of not less than 25 percent in principal amount
of the debt securities of each affected series issued
under the indenture (each series treated as a separate
class) have made a written request upon the trustee to
institute the action and have offered the trustee
reasonable indemnity;
. the trustee has not instituted the action within 60
days of the request; and
. the trustee has not received directions inconsistent
with the written request by the holders of a majority
in principal amount of the outstanding debt securities
of each affected series issued under the indenture
(each series treated as a separate class).
Each indenture contains a covenant requiring us to file
annually with the trustee a certificate of no default or a
certificate specifying any default that exists.
Defeasance Provisions Applicable to the Debt Securities
The following provisions relating to defeasance may be
modified in connection with the issuance of any series of debt
securities. We will describe any modification in the related
prospectus supplement.
"Legal" defeasance. Each indenture provides that we may
defease and be discharged from any and all of our non-
administrative obligations with respect to the debt securities of
any series which have not already been delivered to the trustee
for cancellation and which have either become due and payable or
are by their terms due and payable within one year (or scheduled
for redemption within one year). We may effect the defeasance
by irrevocably depositing with the trustee money or, in the case
of debt securities payable only in U.S. dollars, U.S. government
securities, which through the payment of principal and interest
in accordance with their terms will provide money in an amount we
certify to be sufficient to pay at maturity (or upon redemption)
the principal of (and premium and additional amounts, if any) and
interest on the debt securities.
In addition, we may elect to defease and be discharged from
any and all of our non-administrative obligations with respect to
the debt securities of a series upon our:
. irrevocable deposit with the trustee (or other
qualifying trustee), in trust, money or U.S. government
securities in the amounts described in the immediately
preceding paragraph; and
. delivery to the trustee of an opinion of counsel to the
effect that due to an Internal Revenue Service ruling
or change in federal income tax law, holders of the
debt securities of the series will not recognize
income, gain or loss for federal income tax purposes,
other than with respect to interest earned on the
amounts defeased, as a result of the defeasance and
will be subject to federal income tax as if the
defeasance had not occurred.
"Covenant" defeasance. We may elect to be released from the
restrictions described under "- Certain of our Covenants" above
or, to the extent specified in connection with the issuance of a
series of debt securities, other covenants applicable to the
series of debt securities upon our:
. irrevocable deposit with the trustee (or other
qualifying trustee), in trust, money or U.S. government
securities in the amounts described in the paragraph
titled "Legal defeasance"; and
. delivery to the trustee of an opinion of counsel to the
effect that holders of the debt securities of the
series will not recognize income, gain or loss for
federal income tax purposes, other than with respect to
interest earned on the amounts defeased, as a result of
the defeasance and will be subject to federal income
tax as if the defeasance had not occurred.
If we exercise the "covenant" defeasance option described
above and the debt securities of a series are declared due and
payable because of the occurrence of an event of default other
than an event of default related to the covenants from which we
have been released, the amount of money and U.S. government
securities on deposit with the trustee will be sufficient to pay
amounts due on the related series at the time of their stated
maturity, but may not be sufficient to pay amounts due on the
debt securities of the series if the debt securities are
accelerated as a result of the event of default.
Modification of the Indenture
Unless we state otherwise in the applicable prospectus
supplement, each indenture provides that we and the trustee may
enter into supplemental indentures without the consent of the
holders of debt securities to
. secure the debt securities;
. evidence the assumption of our obligations by a
successor entity;
. add covenants or events of default for the protection
of the holders of any debt securities;
. establish the form or terms of debt securities of any
series;
. provide for uncertificated securities in addition to
certificated securities (so long as the uncertificated
securities are in registered form for tax purposes)
. evidence the acceptance of appointment by a successor
trustee;
. cure any ambiguity or correct any inconsistency in the
indenture or amend the indenture in any other manner
which we may deem necessary or desirable, if such
action will not adversely affect the interests of the
holders of debt securities; or
. make any change to comply with any requirement of the
Securities and Exchange Commission related to the
qualification of the indenture under the Trust
Indenture Act of 1939.
Unless we state otherwise in the applicable prospectus
supplement, each indenture will also contain provisions
permitting us and the trustee to modify the provisions of the
indenture or modify in any manner the rights of the holders of
the debt securities of each such series if we first obtain the
consent of the holders of not less than a majority in principal
amount of debt securities of all series issued under the
indenture then outstanding and affected (voting as a single
class). However, we must get the consent of the holder of each
debt security affected to
. extend the final maturity of any debt security;
. reduce the principal amount of any debt security;
. reduce or alter the method of computation of any amount
payable in respect of interest on any debt security;
. extend the time for payment of interest on any debt
security;
. reduce or alter the method of computation of any amount
payable on redemption of any debt security
. extend the time for any redemption payment;
. change the currency or currencies or currency units, or
composite currencies in which the principal of, premium
or additional amounts, if any, or interest on any debt
security is payable;
. reduce the amount payable upon acceleration of any debt
security;
. alter specified provisions of the indenture relating to
debt securities that are not denominated in U.S.
dollars;
. impair the right to institute suit for the enforcement
of any conversion or any payment on any debt security
when due or materially and adversely affect any
conversion rights;
. reduce the percentage in principal amount of debt
securities of a series required to make other
modifications to the indenture.
The subordinated indenture may not be amended to alter the
subordination of any outstanding subordinated securities without
the consent of each holder of senior indebtedness then
outstanding that would be adversely affected by the amendment.
The Trustee
We will include information regarding the trustee under an
indenture in any prospectus supplement relating to the debt
securities to be issued under the indenture. The indentures will
provide that in case any event of default shall occur (and be
continuing), the trustee will be required to use the degree of
care and skill of a prudent man in the conduct of his own
affairs. The trustee will be under no obligation to exercise any
of its powers under the indentures at the request of any of the
holders of the debt securities, unless the holders shall have
offered the trustee reasonable indemnity against the costs,
expenses and liabilities it might incur. The indentures and
provisions of the Trust Indenture Act incorporated by reference
in the indenture contain limitations on the right of a trustee,
should it become a creditor of ours, to obtain payment of claims
or to realize on property received by it in respect of any claims
as security or otherwise.
DESCRIPTION OF WARRANTS
We summarize below some of the provisions that will apply to
the warrants unless the applicable prospectus supplement provides
otherwise. The summary may not contain all information that is
important to you. The complete terms of the warrants will be
contained in the applicable warrant certificate and warrant
agreement. These documents have been or will be included or
incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. You should read
the warrant certificate and the warrant agreement. You should
also read the prospectus supplement, which will contain
additional information and which may update or change some of the
information below.
General
We may issue warrants, including warrants to purchase class
A common stock, class B common stock, and debt securities, as
well as other types of warrants. We may issue the warrants
independently or together with other securities. The warrants
may be attached to or separate from the other securities. Each
series of warrants will be issued under a separate warrant
agreement to be entered into between us and a warrant agent. The
warrant agent will be our agent and will not assume any
obligations to any owner of the warrants.
Common Stock Warrants
General. Under the common stock warrant agreement, warrants
may be issued in one or more series. The prospectus supplement
and the common stock warrant agreement relating to any series of
warrants will include specific terms of the warrants. These terms
include the following:
. the title and aggregate number of warrants;
. the price or prices at which the common stock warrants
will be issued;
. the currency or currencies or currency units or
composite currencies in which the price of the warrants
may be payable;
. the amount of common stock for which the warrant can be
exercised and the price or the manner of determining
the price and currency or other consideration to
purchase the common stock;
. the date on which the right to exercise the warrant
begins and the date on which the right expires;
. if applicable, the minimum or maximum amount of
warrants that may be exercised at any one time;
. if applicable, the designation and terms of the
securities with which the warrants are issued and the
number of warrants issued with each other security;
. any provision dealing with the date on which the
warrants and related securities will be separately
transferable;
. any mandatory or optional redemption provision;
. the identity of the common stock warrant agent; and
. any other terms of the warrants.
The warrants will be represented by certificates. The
warrants may be exchanged under the terms outlined in the common
stock warrant agreement. We will not charge any service charges
for any transfer or exchange of warrant certificates, but we may
require payment for tax or other governmental charges in
connection with the exchange or transfer. Unless the prospectus
supplement states otherwise, until a common stock warrant is
exercised, a holder will not be entitled to any payments on or
have any rights with respect to the common stock issuable upon
exercise of the common stock warrant.
Exercise of Common Stock Warrants. To exercise the
warrants, the holder must provide the common stock warrant agent
with the following:
. payment of the exercise price;
. any required information described on the warrant
certificates;
. the number of warrants to be exercised;
. an executed and completed warrant certificate; and
. any other items acquired by the common stock warrant
agreement.
The common stock warrant agent will issue a new warrant
certificate for any warrants not exercised. Unless the
prospectus supplement states otherwise, no fractional shares will
be issued upon exercise of warrants, but we will pay the cash
value of any fractional shares otherwise issuable.
The exercise price and the number of shares of common stock
that each warrant can purchase will be adjusted upon the
occurrence of events described in the common stock warrant
agreement, including the issuance of a common stock dividend or a
combination, subdivision or reclassification of common stock.
Unless the prospectus supplement states otherwise, no adjustment
will be required until cumulative adjustments require an
adjustment of at least 1 percent. From time to time, we may
reduce the exercise price as may be provided in the common stock
warrant agreement.
Unless the prospectus supplement states otherwise, if we
enter into any consolidation, merger, or sale or conveyance of
our property as an entirety, the holder of each outstanding
warrant will have the right to the kind and amount of shares of
stock, other securities, property or cash receivable by a holder
of the number of shares of common stock into which the warrants
were exercisable immediately prior to the occurrence of the
event.
Modification of the Common Stock Warrant Agreement. The
common stock warrant agreement will permit us and the common
stock warrant agent, without the consent of the common stock
warrant holders, to supplement or amend the agreement in the
following circumstances:
. to cure any ambiguity;
. to correct or supplement any provision which may be
defective or inconsistent with any other provisions; or
. to add new provisions regarding matters or questions
that we and the common stock warrant agent may deem
necessary or desirable and which do not adversely
affect the interests of the common stock warrant
holders.
Debt Warrants
The applicable prospectus supplement will describe the
following terms of warrants to purchase debt securities:
. the title and aggregate number of the debt warrants;
. the price or prices at which the debt warrants will be
issued;
. the currency or currencies or currency units or
composite currencies in which the price of the debt
warrants may be payable;
. the designation, aggregate principal amount and terms
of the debt securities purchasable upon exercise of the
debt warrants;
. the price at which, and currency or currencies or
currency units or composite currencies in which, the
debt securities purchasable upon exercise of the debt
warrants may be purchased;
. the date on which the right to exercise the debt
warrants begins and the date on which the right
expires;
. if applicable, the minimum or maximum amount of the
debt warrants that may be exercised at any one time;
. if applicable, the designation and terms of the
securities with which the debt warrants are issued and
the number of the debt warrants issued with each other
security;
. if applicable, the date on and after which the debt
warrants and the related other securities will be
separately transferable;
. any mandatory or optional redemption provision;
. the identity of the debt securities warrant agent;
. information with respect to book-entry procedures, if
any;
. if applicable, a discussion of United States federal
income tax considerations; and
. any other terms of the debt warrants, including terms,
procedures and limitations relating to the exchange and
exercise of the debt warrants.
Other Warrants
We may issue warrants to purchase other securities,
including preferred stock. The applicable prospectus supplement
will describe the following terms of any other warrants:
. the title and aggregate number of the warrants;
. the price or prices at which the warrants will be
issued;
. the currency or currencies or currency units or
composite currencies in which the price of the warrants
may be payable;
. the designation and terms of the preferred stock or
other securities purchasable upon exercise of the
warrants;
. the price at which, and the currency or currencies or
currency units or composite currencies in which the
securities purchasable upon exercise of such warrants
may be purchased;
. the date on which the right to exercise the warrants
begins and the date on which the right expires;
. if applicable, the minimum or maximum amount of
warrants that may be exercised at any one time;
. if applicable, the designation and terms of the
securities with which the warrants are issued and the
number of warrants issued with each other security;
. if applicable, the date on and after which the warrants
and the related other securities will be separately
transferable;
. any mandatory or optional redemption provision;
. the identity of the warrant agent;
. information with respect to book-entry procedures, if
any;
. if applicable, a discussion of United States federal
income tax considerations; and
. any other terms of the warrants, including terms,
procedures and limitations relating to the exchange and
exercise of the warrants.
PLAN OF DISTRIBUTION
We may sell securities directly to one or more purchasers or
to or through underwriters, dealers or agents. Our prospectus
supplement will set forth the terms of the offering, including
the name or names of any underwriters, the purchase price and
proceeds to us from such sale, any underwriting discounts and
other items constituting underwriters' compensation, the initial
public offering price and any discounts or concessions allowed,
reallowed or paid to dealers, and any securities exchanges on
which the securities may be listed.
We may distribute our securities from time to time in one or
more transactions at a fixed price or prices (which may be
changed), at market prices prevailing at the time of sale, at
prices related to prevailing market prices or at negotiated
prices. Our prospectus supplement will describe the method of
distribution.
If underwriters are used in the sale, the underwriters may
acquire the securities for their own account and may resell them
from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. Securities may be
offered to the public through underwriting syndicates represented
by one or more managing underwriters or directly by one or more
underwriters without a syndicate. If an underwriting syndicate
is used, the managing underwriter or underwriters will be named
in the prospectus supplement. Unless otherwise set forth in the
prospectus supplement, the obligations of the underwriters to
purchase securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all
securities offered if any are purchased. Any initial public
offering price and any discounts or concessions allowed,
reallowed or paid to dealers may be changed from time to time.
If a dealer is used in an offering of securities, we may
sell the securities to the dealer, as principal. The dealer may
then resell the securities to the public at varying prices to be
determined by the dealer at the time of sale. The terms of the
transaction will be set forth in a prospectus supplement.
Commissions payable by us to any agent involved in the offer
or sale of securities (or the method by which such commissions
may be determined) will be set forth in a prospectus supplement.
Unless otherwise indicated in the prospectus supplement, the
agent will be acting on a best efforts basis.
If so indicated in the prospectus supplement, we may
authorize underwriters, dealers or agents to solicit offers by
certain specified institutions to purchase securities from us
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. These contracts will
be subject to the conditions set forth in the prospectus
supplement, and the prospectus supplement will set forth the
commission payable by us for solicitation of the contracts.
Dealers and agents named in a prospectus supplement may be
deemed to be underwriters of the securities within the meaning of
the Securities Act. Underwriters, dealers and agents may be
entitled under agreements entered into with us to indemnification
by us against certain civil liabilities, including liabilities
under the Securities Act, or to contribution with respect to
payments that the underwriters, dealers or agents may be required
to make. Underwriters, dealers and agents may be customers of,
engage in transactions with, or perform services for us in the
ordinary course of business.
As of the date of this prospectus, we have the following
securities traded on the New York Stock Exchange: class A common
stock, class B common stock, depositary shares each representing
0.05 shares of step-up convertible preferred stock, depositary
shares each representing 0.05 shares of gold-denominated
preferred stock, depositary shares each representing 0.05 shares
of gold-denominated preferred stock, series II, depositary shares
each representing shares of silver-denominated preferred stock
and 9/ percent senior notes due 2001 of P.T. ALatieF Freeport
Finance Company B.V., guaranteed by us. Except for these
securities, each security sold using this prospectus will have no
established trading market. Any underwriters to whom securities
are sold may make a market in the securities, but will not be
obligated to do so and may discontinue their market making
activities at any time. There can be no assurance that a
secondary market will be created for any of the securities that
may be sold using this prospectus or that any market created will
continue.
LEGAL MATTERS
The validity of the securities will be passed upon for us by
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.,
New Orleans, Louisiana.
EXPERTS
Our audited financial statements and schedules incorporated
in this prospectus by reference to our Annual Report on Form 10-K
for the year ended December 31, 1998 have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in
their report contained in the Form 10-K, and are incorporated in
this prospectus by reference in reliance upon the authority of
Arthur Andersen LLP as experts in accounting and auditing in
giving the report.
Our reserves as of December 31, 1997 and 1998 incorporated
in this prospectus by reference to our Annual Report on Form 10-K
for the year ended December 31, 1998 have been verified by
Independent Mining Consultants, Inc. This reserve information
has been incorporated by reference in this prospectus in reliance
upon the authority of Independent Mining Consultants, Inc. as
experts in mining, geology and reserve determination.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange
Commission (the SEC). You can read and copy that information at
the public reference room of the SEC at 450 Fifth Street, NW,
Washington, D.C. 20549. You may call the SEC at 1-800-SEC-0330
for more information about the public reference room. The SEC
also maintains an Internet site that contains reports, proxy and
information statements and other information regarding
registrants, like us, that file reports with the SEC
electronically. The SEC's Internet address is
http://www.sec.gov.
We have filed a registration statement and related exhibits
with the SEC under the Securities Act of 1933. The registration
statement contains additional information about us and our
securities. You may read the registration statement and exhibits
without charge at the SEC's public reference room, and you may
obtain copies from the SEC at prescribed rates.
The SEC allows us to "incorporate by reference" the
information we file with it, which means that we can disclose
important information to you by referring to documents on file
with the SEC. Some information that we currently have on file is
incorporated by reference and is an important part of this
prospectus. Certain information that we file later with the SEC
will automatically update and supersede this information.
We incorporate by reference the following documents that we
have filed with the SEC pursuant to the Securities Exchange Act
of 1934:
. Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (filed March 19, 1999);
. Quarterly Reports on Form 10-Q for the quarter ended
March 31, 1999 (filed May 12, 1999); for the quarter
ended June 30, 1999 (filed August 5, 1999); and for
the quarter ended September 30, 1999 (filed November 9,
1999); and
. All documents filed by us with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this prospectus and prior to the
termination of this offering.
At your request, we will provide you with a free copy of any
of these filings (except for exhibits, unless the exhibits are
specifically incorporated by reference into the filing). You may
request copies by writing or telephoning us at:
Freeport-McMoRan Copper & Gold Inc.
1615 Poydras Street
New Orleans, Louisiana 70112
Attention: Stephen M. Jones
(504) 582-4000
You should rely only on information incorporated by
reference or provided in this prospectus and any prospectus
supplement. We have not authorized anyone else to provide you
with different information.
Prospective investors may
rely only on the information
contained in this
prospectus. Neither
Freeport-McMoRan Copper & Freeport-McMoRan Copper & Gold Inc.
Gold Inc. nor any
underwriter has authorized
anyone to provide
prospective investors with
different or additional
information. This
prospectus is not an offer
to sell nor is it seeking an
offer to buy these
securities in any
jurisdiction where the offer
or sale is not permitted.
The information contained in
this prospectus is correct
only as of the date of this
prospectus, regardless of
the time of the delivery of
this prospectus or any sale
of these securities.
Class A Common Stock
Class B Common Stock
Preferred Stock
Depositary Shares
Debt Securities
Warrants
TABLE OF CONTENTS
Page
The Company ............... 2
PROSPECTUS
Risk Factors ............. 3
Use of Proceeds ........... 6
Ratio of Earnings to Fixed
Charges .................. 6
Description of Common
Stock .................... 6
Description of Preferred
Stock .................... 9
Description of Depositary
Shares .................... 14
Description of Debt
Securities ............... 16
Description of Warrants .. 28
Plan of Distribution ..... 31
Legal Matters ............ 32
Experts .................. 32
Where You Can Find More
Information .............. 32
March 3, 2000
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated fees and expenses payable by us in connection
with the issuance and distribution of the securities being
registered are as follows:
SEC registration fee......................$132,000
Printing costs............................ 100,000
Legal fees and expenses................... 100,000
Accounting fees and expenses.............. 30,000
Rating agency fees........................ 50,000
Blue sky fees and expenses................ 10,000
Trustee's and registrar's fees............ 20,000
Miscellaneous............................. 26,000
--------
Total.....................................$468,000
========
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware
empowers us to indemnify, subject to the standards prescribed in
that Section, any person in connection with any action, suit or
proceeding brought or threatened by reason of the fact that the
person is or was our director, officer, employee or agent.
Article VIII of our Certificate of Incorporation and Article XXV
of our by-laws provides that each person who was or is made a
party to, or is threatened to be made a party to, or is otherwise
involved in, any action, suit, or proceeding by reason of the
fact that the person is or was our director, officer, employee or
agent shall be indemnified and held harmless by us to the fullest
extent authorized by the General Corporation Law of Delaware.
The indemnification covers all expenses, liability and loss
reasonably incurred by the person and includes attorneys' fees,
judgments, fines and amounts paid in settlement. The rights
conferred by Article VIII of our Certificate of Incorporation and
Article XXV of our by-laws are contractual rights and include the
right to be paid by us the expenses incurred in defending the
action, suit or proceeding in advance of its final disposition.
Article VIII of our Certificate of Incorporation provides
that our directors will not be personally liable to us or our
stockholders for monetary damages resulting from breaches of
their fiduciary duty as directors except (1) for any breach of
the duty of loyalty to us or our stockholders, (2) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (3) under Section 174
of the General Corporation Law of Delaware, which makes directors
liable for unlawful dividend or unlawful stock repurchases or
redemptions or (4) transactions from which directors derive
improper personal benefit.
We have an insurance policy insuring our directors and
officers against certain liabilities, including liabilities under
the Securities Act of 1933.
Item 16. Exhibits.
1.1 Form of Underwriting Agreement.**
1.2 Form of Sales Agency Agreement.**
1.3 Form of Distribution Agreement.**
4.1 Composite copy of the Certificate of Incorporation of
the Company. Incorporated by reference to Exhibit 3.1
to the Quarterly Report on Form 10-Q of the Company for
the quarter ended June 30, 1999.
4.2 By-Laws of the Company, as amended, dated as of March
12, 1999. Incorporated by reference to Exhibit 3.2 to
the Annual Report on Form 10-K of the Company for the
fiscal year ended December 31, 1998.
4.3 Form of Indenture for Senior Debt Securities.
4.4 Form of Senior Debt Security.**
4.5 Form of Indenture for Subordinated Securities.
4.6 Form of Subordinated Debt Security.**
4.7 Form of Certificate of Designations of Preferred Stock.
4.8 Form of Stock Certificate of the Class A Common Stock.
Incorporated by reference to Exhibit 4.10 to the
Registration Statement on Form S-3 (File Number 333-
02699) of the Company filed with the SEC on April 19,
1996.
4.9 Form of Stock Certificate of the Class B Common Stock.
Incorporated by reference to Exhibit 4.11 to the
Registration Statement on Form S-3 (File Number 333-
02699) of the Company filed with the SEC on April 19,
1996.
4.10 Form of Deposit Agreement.
4.11 Form of Depositary Receipt.
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P., as to the legality of the securities.
12 Statement re computation of ratios.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carrere
& Denegre, L.L.P. included as part of Exhibit 5.
23.3 Consent of Independent Mining Consultants, Inc.
24 Powers of Attorney.
25.1 Statement of Eligibility of Trustee on Form T-1 with
respect to Senior Debt Securities.**
25.2 Statement of Eligibility of Trustee on Form T-1 with
respect to Subordinated Debt Securities.**
____________
**To be filed by amendment or subsequently incorporated into this
registration statement.
Item 17. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in this registration statement; notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in
the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this registration statement or any material
change to such information in this registration
statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(b) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(2) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's Annual Report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
(4) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of section 310 of the Trust
Indenture Act of 1939 in accordance with the rules and
regulations prescribed by the SEC under section 305(b)(2) of the
Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it had reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
New Orleans, Louisiana, on March 3, 2000.
Freeport-McMoRan Copper & Gold Inc.
By:/s/Richard C. Adkerson
_______________________________
Richard C. Adkerson
President and
Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons and in the capacities indicated on March 3, 2000.
Signature Title
--------- -----
Chairman of the Board,
* Chief Executive Officer and Director
---------------- (Principal Executive Officer)
James R. Moffett
Senior Vice President,
* Chief Financial Officer and
---------------- Secretary (Principal Financial
Stephen M. Jones Officer)
Vice President and Controller -
* Financial Reporting
----------------------- (Principal Accounting Officer)
C. Donald Whitmire, Jr.
* Director
-------------------
Robert W. Bruce III
* Director
-----------------
R. Leigh Clifford
* Director
-------------
Robert A. Day
* Director
---------------
Gerald J. Ford
* Director
--------------------
H. Devon Graham, Jr.
* Director
-------------------
Oscar L. Groeneveld
* Director
-------------------
J. Bennett Johnston
* Director
------------------
Henry A. Kissinger
* Director
----------------
Bobby Lee Lackey
* Director
-----------------
Rene L. Latiolais
* Director
---------------------
Gabrielle K. McDonald
* Director
----------------
George A. Mealey
* Director
-----------------
B. M. Rankin, Jr.
* Director
------------------
J. Taylor Wharton
*By: /s/Richard C. Adkerson
______________________
Richard C. Adkerson
Attorney-in-Fact
Exhibit 4.3
FREEPORT-MCMORAN COPPER & GOLD INC., Issuer
and
_______________________, Trustee
SENIOR
INDENTURE
Dated as of _____________________, 2000
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 3
Defeasance 3
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 4
Insolvency Law 4
Interest 4
Interest Payment Date 4
Issuer 4
Judgment Currency 4
Officers' Certificate 4
Opinion of Counsel 4
original issue date 4
Original Issue Discount Security 4
Outstanding 4
<PAGE> i
Periodic Offering 5
Person 5
principal 5
Redemption Date 5
Redemption Price 5
Registered Global Security 5
Registered Security 6
Regular Record Date 6
Required Currency 6
Responsible Officer 6
SEC Reports 6
Securities Act 6
Security or Securities 6
Security Registrar 6
Stated Maturity 6
Trust Indenture Act of 1939 6
Trustee 6
Unregistered Security 7
U.S. Government Obligations 7
Yield to Maturity 7
ARTICLE TWO - ISSUE, EXECUTION, FORM AND
REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally 7
SECTION 2.2 Form of Trustee's Certificate
of Authentication 7
SECTION 2.3 Amount Unlimited; Issuable
in Series 8
SECTION 2.4 Authentication and Delivery
of Securities 11
SECTION 2.5 Execution of Securities 13
SECTION 2.6 Certificate of
Authentication 14
SECTION 2.7 Denomination and Date of
Securities; Payments of Interest 14
SECTION 2.8 Registration, Transfer and
Exchange 15
SECTION 2.9 Mutilated, Defaced,
Destroyed, Lost and Stolen Securities 18
SECTION 2.10 Cancellation of Securities;
Disposition Thereof 19
SECTION 2.11 Temporary Securities 20
ARTICLE THREE - COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and
Interest 20
SECTION 3.2 Offices for Payments, etc. 21
SECTION 3.3 Appointment to Fill a
Vacancy in Office of Trustee 22
SECTION 3.4 Paying Agents 22
SECTION 3.5 Written Statement to
Trustee 23
<PAGE> ii
SECTION 3.6 Corporate Existence 23
SECTION 3.7 Luxembourg Publications 23
ARTICLE FOUR - SECURITYHOLDERS' LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee
Information as to Names and
Addresses of Securityholders 24
SECTION 4.2 Preservation and Disclosure
of Securityholders' Lists 24
SECTION 4.3 Reports by the Issuer 24
SECTION 4.4 Reports by the Trustee 25
ARTICLE FIVE - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined;
Acceleration of Maturity; Waiver of
Default 25
SECTION 5.2 Collection of Debt by
Trustee; Trustee May Prove Debt 28
SECTION 5.3 Application of Proceeds 30
SECTION 5.4 Suits for Enforcement 31
SECTION 5.5 Restoration of Rights on
Abandonment of Proceedings 31
SECTION 5.6 Limitations on Suits by
Securityholders 31
SECTION 5.7 Unconditional Right of
Securityholders to Institute Certain
Suits 32
SECTION 5.8 Powers and Remedies
Cumulative; Delay or Omission Not
Waiver of Default 32
SECTION 5.9 Control by Securityholders 32
SECTION 5.10 Waiver of Past Defaults 33
SECTION 5.11 Trustee to Give Notice of
Default, But May Withhold in Certain
Circumstances 33
SECTION 5.12 Right of Court to Require
Filing of Undertaking to Pay Costs 33
ARTICLE SIX - CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities
of the Trustee; During Default; Prior
to Default 34
SECTION 6.2 Certain Rights of the
Trustee 35
SECTION 6.3 Trustee Not Responsible
for Recitals, Disposition of
Securities or Application of Proceeds
Thereof 36
SECTION 6.4 Trustee and Agents May Hold
Securities or Coupons; Collections,
etc. 36
SECTION 6.5 Monies Held by Trustee 36
<PAGE> iii
SECTION 6.6 Compensation and
Indemnification of Trustee and Its
Prior Claim 36
SECTION 6.7 Right of Trustee to Rely
on Officers' Certificate, etc. 37
SECTION 6.8 Persons Eligible for
Appointment as Trustee 37
SECTION 6.9 Resignation and Removal;
Appointment of Successor Trustee 37
SECTION 6.10 Acceptance of Appointment
by Successor Trustee 39
SECTION 6.11 Merger, Conversion,
Consolidation or Succession to
Business of Trustee 40
SECTION 6.12 Preferential Collection
of Claims Against the Issuer 40
SECTION 6.13 Appointment of
Authenticating Agent 41
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken
by Securityholders 42
SECTION 7.2 Proof of Execution of
Instruments and of Holding of
Securities 42
SECTION 7.3 Holders to be Treated as
Owners 43
SECTION 7.4 Securities Owned by Issuer
Deemed Not Outstanding 43
SECTION 7.5 Right of Revocation of
Action Taken 44
SECTION 7.6 Record Date for Consents
and Waivers 44
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures
Without Consent of Securityholders 45
SECTION 8.2 Supplemental Indentures
With Consent of Securityholders 46
SECTION 8.3 Effect of Supplemental
Indenture 48
SECTION 8.4 Documents to Be Given
to Trustee 48
SECTION 8.5 Notation on Securities
in Respect of Supplemental
Indentures 48
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 48
SECTION 9.2 Successor Entity
Substituted 49
SECTION 9.3 Opinion of Counsel to
Trustee 50
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED
MONIES
SECTION 10.1 Satisfaction and Discharge
of Indenture 50
<PAGE>iv
SECTION 10.2 Application by Trustee of
Funds Deposited for Payment of
Securities 54
SECTION 10.3 Repayment of Monies Held
by Paying Agent 54
SECTION 10.4 Return of Monies Held by
Trustee and Paying Agent Unclaimed
for Two Years 54
SECTION 10.5 Indemnity for U.S.
Government Obligations 55
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders
, Officers and Directors of Issuer
Exempt from Individual Liability 55
SECTION 11.2 Provisions of Indenture
for the Sole Benefit of Parties and
Securityholders 55
SECTION 11.3 Successors and Assigns of
Issuer Bound by Indenture 56
SECTION 11.4 Notices and Demands on
Issuer, the Trustee and
Securityholders 56
SECTION 11.5 Officers' Certificates
and Opinions of Counsel, Statements
to Be Contained Therein 56
SECTION 11.6 Payments Due on Saturdays
, Sundays and Legal Holidays 57
SECTION 11.7 Conflict of Any Provision
of Indenture with Trust Indenture Act
of 1939 58
SECTION 11.8 New York Law to Govern;
Separability 58
SECTION 11.9 Counterparts 58
SECTION 11.10 Effect of Headings 58
SECTION 11.11 Securities in a Foreign
Currency or in ECU 58
SECTION 11.12 Judgment Currency 59
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Application of Article 59
SECTION 12.2 Notice of Redemption 60
SECTION 12.3 Payment of Securities
Called for Redemption 61
SECTION 12.4 Exclusion of Certain of
Securities from Eligibility for
Selection for Redemption 62
SECTION 12.5 Mandatory and Optional
Sinking Funds 62
TESTIMONIUM 65
SIGNATURES AND SEALS 66
ACKNOWLEDGMENTS 67
<PAGE> v
CROSS REFERENCE SHEET*
---------------------
Between
Provisions of Trust Indenture Act of 1939, as amended, and the
Indenture to be dated as of ___________________, 2000 between
Freeport-McMoRan Copper & Gold Inc. and ____________________, as
Trustee:
Section of the Act Section of Indenture
- ------------------ --------------------
310(a)(1), (2) and (5) 6.8
310(a)(3) and (4) Inapplicable
310(b) 6.9(a), (b) and (d)
310(c) Inapplicable
311(a) and (b) 6.12
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(b)
312(c) 4.2(c)
313(a) 4.4(a)
313(a)(5) 4.4(b)
313(b) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 3.5 and 4.3
314(b) Inapplicable
314(c) 11.5
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.11
315(e) 5.12
316(a)(1) 5.9
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.7
316(c) 7.6
317(a) 5.2
317(b) 3.4
318(a) 11.7
*This Cross Reference Sheet is not part of the Indenture.
<PAGE> vi
THIS INDENTURE, dated as of __________________________, 2000,
by and between Freeport-McMoRan Copper & Gold Inc. (the "Issuer"),
a Delaware corporation, and ____________________, a
_____________________ corporation, as trustee (the "Trustee"),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities")
up to such principal amount or amounts as may from time to time be
authorized by the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement of the Issuer 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.
<PAGE> 1
"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
__________________________________ .
"Coupon" means any interest coupon appertaining to a
Security.
"Debt" shall have the meaning set forth in Section 5.1.
<PAGE> 2
"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" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Indebtedness or other obligation of any other
Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation
(whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement
conditions or otherwise), or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided
that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term
"Guarantee" as used as a verb has a corresponding meaning.
"Holder", "Holder of Securities", "Securityholder" or
other similar terms mean (a) in the case of any Registered
Security, the Person in whose name such Security is registered in
the Security register kept by the Issuer for that purpose in
accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
<PAGE> 3
"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:
<PAGE> 4
(a) Securities theretofore canceled 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.
<PAGE> 5
"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 the Chairman of the Board of Directors, the
President, the Secretary, the Treasurer, or any other officer of
the Trustee customarily performing corporate trust functions.
"SEC Reports" shall have the meaning set forth in Section
4.3.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security" or "Securities" has the meaning stated in the
first recital of this Indenture and more particularly means any
Securities of any series, authenticated and delivered under this
Indenture.
"Security Registrar" means the Trustee or any successor
Security Registrar appointed by the Issuer.
"Stated Maturity" means, with respect to any Security,
the date specified in such Security as the fixed date on which the
principal of such security is due and payable, including pursuant
to any mandatory redemption provision (but excluding any provision
providing for the repurchase of such security at the option of the
Holder thereof upon the happening of any contingency unless such
contingency has occurred) and with respect to any installment of
interest upon such Security, the date specified in such Security,
or Coupon appertaining thereto, if applicable as the fixed date on
which such installment of interest is due and payable.
"Trust Indenture Act of 1939" (except as otherwise
provided in Sections 8.1 and 8.2) means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was
originally executed.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article
Six, shall also include any successor trustee. "Trustee" shall
also mean or include each person who is then a trustee hereunder
and if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
<PAGE> 6
"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.
____________________________, Trustee
By:
--------------------------
"Authorized Officer"
<PAGE> 7
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.
______________________________, 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;
<PAGE> 8
(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, 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;
<PAGE> 9
(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 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 satis-
faction 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
Holders or 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
<PAGE> 10
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 such Company Order, without any
further action by the Issuer. The maturity date, original issue
date, interest rate and any other terms of the Securities of such
series and Coupons, if any, appertaining thereto shall be
determined by or pursuant to such Company Order or procedures
authorized by such Company Order. If provided for in such
procedures, such Company Order may authorize authentication and
delivery of Securities pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be
promptly confirmed in writing. In authenticating such Securities
and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to
receive (in the case of subparagraphs 2, 3 and 4 below only at or
before the time of the first request of the Issuer to the Trustee
to authenticate Securities of such series) and (subject to Section
6.1) shall be fully protected in relying upon, unless and until
such documents have been superseded or revoked:
(1) a Company Order requesting such authentication and
setting forth delivery instructions if the Securities and
Coupons, if any, are not to be delivered to the Issuer,
provided that, with respect to Securities of a series subject
to a Periodic Offering, (a) such Company Order may be
delivered by the Issuer to the Trustee prior to the delivery
to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to
time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series,
pursuant to a Company Order or pursuant to procedures
acceptable to the Trustee as may be specified from time to
time by a Company Order, (c) the maturity date or dates,
original issue date or dates or interest rate or rates and any
other terms of Securities of such series shall be determined
by a Company Order or pursuant to such procedures and (d) if
provided for in such procedures, such Company Order may
authorize authentication and delivery of Securities pursuant
to oral or electronic instructions from the Issuer or its duly
authorized agent or agents, which oral or electronic
instructions shall be promptly confirmed in writing, and (e)
after the original issuance of the first Security of such
series to be issued, any separate request by the Issuer that
the Trustee authenticate Securities of such series for
original issuance will be deemed to be a certification by the
Issuer that it is in compliance with all conditions precedent
provided for in this Indenture relating to the authentication
and delivery of such Securities;
<PAGE> 11
(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 provi-
sions 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 pur-
chasers 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
to the best of counsel's knowledge any agreement or other
instrument binding upon the Issuer that is material to
the Issuer or, to the best of such counsel's knowledge
but without any independent investigation, any judgment,
order or decree of any governmental body, agency or court
having jurisdiction over the Issuer and no consent,
approval or authorization of any governmental body or
agency is required for the performance by the Issuer of
its obligations under the Securities and Coupons, if any,
except such as are specified and have been obtained and
such as may be required by the securities or blue sky
laws of the various states in connection with the offer
and sale of the Securities and Coupons, if any.
<PAGE> 12
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 canceled 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.
<PAGE> 13
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
<PAGE> 14
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 main-
tained 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
<PAGE> 15
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 in interest in
default, as the case may be, will not be payable on such Interest
Payment Date or subsequent date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such
Unregistered Security, but will be payable only to the Holder of
such Coupon when due in accordance with the provisions of this
Indenture. All Securities and Coupons surrendered upon any
exchange or transfer provided for in this Indenture shall be
promptly canceled 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) to register the
transfer of or exchange any Security if the Holder thereof has
exercised his right, if any, to require the Issuer to repurchase
such Security in whole or in part, except the portion of such
Security not required to be repurchased or (d) to exchange any
Unregistered Security so selected for redemption, except that such
Unregistered Security may be
<PAGE> 16
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
<PAGE> 17
(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
canceled 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
computed for federal income tax purposes, the interest payable on
the Unregistered Securities) under then applicable United States
federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any
Coupon appertaining to any Security shall become mutilated, defaced
or be apparently destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of any officer
of the Issuer, the Trustee shall authenticate and deliver a new
Security of the same series, of like tenor and in equal aggregate
principal amount, bearing a number or other distinguishing symbol
not contemporaneously outstanding, in exchange and substitution for
the mutilated or defaced Security, or in lieu of and in
substitution for the Security so apparently destroyed, lost or
stolen and, if applicable, 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
<PAGE> 18
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 canceled 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 canceled
Securities and Coupons held by it and deliver a certificate of
disposition to the Issuer unless the Issuer shall direct that
canceled 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.
<PAGE> 19
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
<PAGE> 20
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 Securities) shall be paid, as to the installments of
interest evidenced by Coupons attached thereto, if any, only upon
presentation of such Securities for notation thereon of the payment
of such interest, in each case subject to any restrictions that may
be established pursuant to Section 2.3. The interest on Registered
Securities (together with any additional amounts payable with
respect to such Security ) 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.
<PAGE> 21
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;
<PAGE> 22
(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, ____) 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
<PAGE> 23
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 of 1939.
(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
<PAGE> 24
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 _________ of each year, commencing with the first _____
following the first issuance of Securities pursuant to Section 2.4,
if required by Section 313(a) of the Trust Indenture Act of 1939,
the Trustee shall transmit, pursuant to Section 313(c) of the Trust
Indenture Act, a brief report dated as of such ______ with respect
to any of the events specified in said Section 313(a) which may
have occurred since the later of the immediately preceding
___________________ and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act and Section 5.11 hereof
at the times specified therein.
(c) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by Section
313(c) 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
<PAGE> 25
(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
<PAGE> 26
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) above shall cease or be cured,
waived, rescinded or annulled, then the Event of Default hereunder
by reason thereof, and any acceleration under this Section 5.1
resulting solely therefrom, shall be deemed likewise to have been
thereupon cured, waived, rescinded or annulled without further
action on the part of either the Trustee or any of the
Securityholders.
If an Event of Default (other than those specified in Section
5.1(d) or (e)) with respect to one or more 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 (each series voting as a separate 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 the
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 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
<PAGE> 27
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 (each series
voting as a separate 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
<PAGE> 28
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.
<PAGE> 29
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
<PAGE> 30
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, each
series treated as a separate 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;
<PAGE> 31
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
<PAGE> 32
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.
<PAGE> 33
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
<PAGE> 34
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;
<PAGE> 35
(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,
<PAGE> 36
reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and
other Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad
faith. The Issuer also covenants to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its
duties hereunder, including but not limited to the costs and
expenses of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligations of the Issuer
under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon
all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of or
interest on particular Securities or Coupons, and the Securities
are hereby subordinated to such senior claim. When the Trustee
incurs expenses or renders services in connection with an Event of
Default specified in Section 5.1 or in connection with Article Five
hereof, the expenses (including the reasonable fees and expenses of
its counsel) and the compensation for the services in connection
therewith are intended to constitute expenses of administration
under any bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in the
administration of the trusts of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence
or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by
it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times
be a corporation organized and doing business under the laws of the
United States of America or of any State or the District of
Columbia having a combined capital and surplus of at least
$50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination
by Federal, State or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published. At no time shall the Trustee be
an obligor, or directly or indirectly, control, be controlled by,
or under the common control with any obligor upon any Securities
issued hereunder. In case at any time
<PAGE> 37
the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect
specified in Section 6.9.
The provisions of this Section 6.8 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.9 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or
all series of Securities by giving written notice of resignation to
the Issuer. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors of the Issuer, one
copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any
series and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Securityholder who has been a bona fide
Holder of a Security or Securities of the applicable series for at
least six months may, subject to the provisions of Section 5.12, on
behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall
occur:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act of
1939 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who
has been a bona fide Holder of a Security or Securities for at
least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.8 or Section
310(a) of the Trust Indenture Act of 1939 and shall fail to
resign after written request therefor by the Issuer or by any
such Securityholder; or
(iii) the Trustee shall become incapable of
acting with respect to any series of Securities, or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator
of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a
successor trustee for such series by written instrument, in
duplicate, executed by order of the Board of Directors of the
Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 5.12, any Securityholder who
has been a bona fide Holder of a Security or Securities for at
least six months may on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
<PAGE> 38
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,
<PAGE> 39
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 the 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
<PAGE> 40
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 Trus-
tee'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 which
shall be acceptable to the Issuer and the Issuer shall provide
notice of such appointment to all Holders of Securities of such
series in the manner and to the extent provided in Section 11.4.
Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers,
duties and responsibilities of its predecessor hereunder,
<PAGE> 41
with like
effect as if originally named as Authenticating Agent. The Issuer
agrees to pay to the Authenticating Agent for such series from time
to time reasonable compensation. The Authenticating Agent for the
Securities of any series shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and, as agent of the Trustee, 7.3 shall
be applicable to any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by
Securityholders of any or all series may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Securityholders in person or by agent duly appointed
in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of
any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.1 and 6.2, the execution of
any instrument by a Securityholder or his agent or proxy may be
proved in the following manner:
(a) The fact and date of the execution by any Holder or
his agent or proxy of any instrument, or the authority of such
an agent or proxy to execute such instrument, may be proved by
the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instruments
acknowledged to him the execution thereof, or by an affidavit
of a witness to such execution sworn to before any such notary
or other such officer. Where such execution is by or on
behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute sufficient
proof of the authority of the Person executing the same. The
fact of the holding by any Holder of an Unregistered Security
of any series, and the identifying number of such Security and
the date of his holding the same, may be proved by the
production of such Security or by a certificate executed by
any trust company, bank, or recognized securities dealer
wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory.
Each such certificate shall be dated and shall state that on
the date thereof a Security of such series bearing a specified
identifying number was deposited with or exhibited to such
trust company, bank, or recognized securities dealer by the
Person named in such certificate. Any such certificate may be
issued in respect of one or more Unregistered Securities of
one or more series specified therein. The holding by the
Person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed
to continue for a period of one year from the
<PAGE> 42
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
<PAGE> 43
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 any (i) notice of
Default, (ii) declaration under 5.1, (iii) request to institute
proceedings referred to in Section 5.6 or (iv) 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
<PAGE> 44
applicable expiration date by Holders of
the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new record date for
any action for which a record date has previously been set pursuant
to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of
no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series
on the date such action is taken. Promptly after any record date
is set pursuant to this paragraph, the Trustee, at the Issuer's
expense, shall cause notice of such record date, the proposed
action by Holders and the applicable expiration date to be given to
the Issuer in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 11.4.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer when authorized by Board Resolutions
(which resolutions may provide general terms or parameters for such
action and may provide that the specific terms of such action may
be determined in accordance with or pursuant to a Company Order)
and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act of 1939 as in force at
the date of the execution thereof) for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more
series any property or assets;
(b) to evidence the succession of another entity to the
Issuer or successive successions, and the assumption by the
successor entity of the respective covenants, agreements and
obligations of the Issuer under this Indenture or any
supplemental indenture;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions or to
surrender any right, power or option conferred by this
Indenture on the Issuer as its Board of Directors and the
Trustee shall consider to be for the protection or benefit of
the Holders of all or any series of Securities or Coupons of
any series (and if such covenants are to be for the benefit of
less than all series of Securities, stating that such
covenants are being added solely for the benefit of such
series), and to make the occurrence, or the occurrence and
continuance, of a Default in any such additional covenants,
restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth;
provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event
of Default or may limit the right of the
<PAGE> 45
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 or Resolutions
(which Resolutions may provide general terms or parameters for such
action and may provide that the specific terms of such action may
be determined in accordance with or pursuant to a Company Order)
and the Trustee may, from time to time and at any time, enter into
an indenture or indentures
<PAGE> 46
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 of)
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, in each case, without the consent of the Holder of each
Security so affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or of Coupons appertaining to such
Securities, or which modifies the rights of Holders of Securities
of such series with respect to such covenant or provision, shall be
deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series or of the Coupons appertaining to
such Securities.
Upon the request of the Issuer, accompanied by copies of Board
Resolutions of the Issuer (which resolutions may provide general
terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with
or pursuant to a Company Order) certified by the secretary or an
assistant secretary of the Issuer authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Securityholders and other documents,
if any, required by Section 7.1 the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
<PAGE> 47
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient
if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this
Section, the Issuer shall give notice thereof setting forth in
general terms the substance of such supplemental indenture, (i) to
the Holders of the Outstanding Registered Securities of each series
affected thereby, by mailing a notice thereof by first-class mail
to such Holders at their addresses as they shall appear on the
security register, (ii) if any Unregistered Securities of a series
affected thereby are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee for such
purpose within two years preceding the giving of such notice, by
mailing a notice thereof by first-class mail to such Holders at
such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then 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.
<PAGE> 48
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 entity 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, limited liability company or
partnership organized under the laws of the United States of
America or any State thereof or the District of Columbia, and shall
expressly assume, by supplemental indenture, in form satisfactory
to the Trustee, executed and delivered to the Trustee by such
entity pursuant to Article Eight hereof, all of the payment
obligations of the Issuer pursuant to this Indenture and the
Securities of all series and Coupons, if any, appertaining thereto
and the due and punctual performance of every covenant of this
Indenture on the part of the Issuer to be performed or observed;
and (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
entity, such successor entity 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 entity may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered
to the Trustee; and, upon the order of such successor entity,
instead of the Issuer, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities 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 entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose.
All of the Securities so issued together with any Coupons
appertaining thereto shall in all respects have the same legal rank
and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as
though all of such Securities had been issued at the date of the
execution hereof.
<PAGE> 49
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 entity which shall theretofore
have become such in the manner described in this Article) shall be
discharged from all obligations and covenants under this Indenture
and the Securities and may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel 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
<PAGE> 50
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 amount identified in subsection (x), (y) or (z)
below (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 through operation of a mandatory
sinking fund other than 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, and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced or
apparently destroyed, lost or stolen Securities or Coupons, (iii)
rights of the Holders of Securities and Coupons appertaining
thereto to receive from the property so deposited payments of
principal thereof and interest on the original stated due dates
therefor (but not upon acceleration) or the Redemption Date 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
<PAGE> 51
Sections 3.2, 3.3 and 3.4), 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 and the Issuer's right
of optional redemption, if any, (ii) substitution of mutilated,
defaced or apparently destroyed, lost or stolen Securities or
Coupons, (iii) rights of Holders of Securities or Coupons
appertaining thereto to receive from the property so deposited
payments of principal thereof and interest thereon on the original
stated due dates therefor (but not on acceleration) or the
Redemption Date 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), (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
<PAGE> 52
benefit of the
Holders of the Securities of such series and Coupons
appertaining thereto, (i) cash in an amount, or (ii) in the
case of any series of Securities the payments on which may
only be in Dollars, U.S. Government Obligations, maturing as
to principal and interest at such times and in such amounts as
will insure (without investment of such cash or reinvestment
of any interest or proceeds from such U.S. Government
Obligations) the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay the
principal of and interest on all Securities of such series and
Coupons appertaining thereto on each date that such principal
and interest is due and payable (whether at maturity or upon
redemption (through operation of a mandatory sinking fund or
otherwise other than any redemption or repayment at the option
of the Holder);
(b) no Default or 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, to
the effect that Holders of the Securities of such series and
the Coupons appertaining thereto will not recognize income,
gain or loss, other than with respect to the interest earned
on the amounts defeased, 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.
<PAGE> 53
(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 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, other than any redemption or
repayment at the option of the Holder);
(b) no Default or Event of Default or event which with
notice or lapse of time or both would become an Event of
Default with respect to the Securities shall have occurred and
be continuing on the date of such deposit or, insofar as
subsections 5.1(d) and (e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(c) such covenant defeasance will not result in a breach
or violation of, or constitute a default under, 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;
<PAGE> 54
(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, other than with
respect to the interest earned on the amounts defeased, for
Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred; and (ii) that the trust arising from such deposit
shall not constitute an "investment company" or an entity
"controlled" by an "investment company" as such terms are
defined in The Investment Company Act of 1940, as amended; and
(g) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the covenant
defeasance contemplated by this provision have been complied
with.
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4 all monies and
securities deposited with the Trustee pursuant to Section 10.1
shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Issuer acting
as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for
the payment or redemption of which such monies or securities have
been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such monies or securities
need not be segregated from other funds except to the extent
required by law.
SECTION 10.3 Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture
with respect to the Securities of any series 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
<PAGE> 55
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
<PAGE> 56
provided herein)
addressed (until another address of the Issuer is filed by the
Issuer with the Trustee) to Freeport-McMoRan Copper & Gold Inc.,
1615 Poydras Street, New Orleans, Louisiana 70112, Attention:
Corporate Secretary. Any notice, direction, request or demand by
the Issuer or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes,
if given or made at the Corporate Trust Office, Attention:
Corporate Trustee Administration Department.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security
register. Where this Indenture 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 the 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,
<PAGE> 57
(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, or by operation of Section 318(c)
thereof, such duties and required provision shall control except
as, and to the extent, such provision is expressly excluded from
this Indenture, as permitted by the Trust Indenture Act of 1939.
SECTION 11.8 New York Law to Govern; 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
<PAGE> 58
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.
<PAGE> 59
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 pur-
chase 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
<PAGE> 60
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.
At least one Business Day prior to the Redemption Date
specified in the notice of redemption given as provided in this
Section, the Issuer will deposit with the Trustee or with one or
more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the
Redemption Date all the Securities of such series to be redeemed at
the appropriate Redemption Price, together with accrued interest to
and including the Redemption Date. If less than all Securities of
any series are to be redeemed, the Issuer will deliver to the
Trustee at least 70 days prior to the Redemption Date an Officers'
Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer
prior to the expiration of any restriction on such redemption or
subject to compliance with conditions precedent, the Issuer shall
deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such restriction or condition has been
complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify
the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series
selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities of any series shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is
<PAGE> 61
to be
redeemed. In case of a redemption at the election of the Issuer
prior to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an
Officers' Certificate stating that such restriction has been
complied with.
SECTION 12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the
Securities or portions of Securities specified in such notice shall
become due and payable on the Redemption Date and at the place
stated in such notice at the applicable Redemption Price, together
with interest accrued to and including the Redemption Date, and on
and after said Redemption Date (unless the Issuer shall default in
the payment of such Securities at the Redemption Price, together
with interest accrued to said Redemption Date) interest on the
Securities or portions of Securities so called for redemption
shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and such Securities shall cease
from and after the Redemption Date to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have
no right in respect of such Securities to be redeemed except the
right to receive the applicable Redemption Price thereof and unpaid
interest to and including the Redemption Date. On surrender of
such Securities at a place of payment specified in said notice,
together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the
applicable Redemption Price, together with interest accrued
thereon, to and including the Redemption Date; provided that any
payment of interest becoming due on or prior to the Redemption Date
shall be payable in the case of Securities with Coupons attached
thereto, to the Holders of the Coupons for such interest upon
surrender thereof, and in the case of Registered Securities,
registered as such on the relevant Regular Record Date subject to
the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until
paid or duly provided for, bear interest from the Redemption Date
at the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons
maturing after the date fixed for redemption, the surrender of such
missing Coupon or Coupons may be waived by the Issuer and the
Trustee, if there be furnished to each of them such security or
indemnity as they may require to save each of them harmless.
Upon surrender of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver
to or on the order of the Holder thereof, at the expense of the
Issuer, a new Security or Securities for such series, of authorized
denominations, in principal amount equal to the unredeemed portion
of the Security so prescribed.
SECTION 12.4 Exclusion of Certain Securities From Eligibility
for Selection for Redemption. Securities shall be excluded from
eligibility for selection for redemption if they are identified by
registration and certificate number in an Officers' Certificate of
the Issuer delivered to the Trustee at least 45 days prior to the
last date on which notice of redemption may be given as
<PAGE> 62
being owned
of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in
such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the
terms of the Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of the Securities of any
series is herein referred to as an "optional sinking fund payment".
The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the
Issuer may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except
upon redemption pursuant to the mandatory sinking fund) by the
Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee
for cancellation pursuant to Section 2.10, (b) receive credit for
optional sinking fund payments (not previously so credited) made
pursuant to this Section, or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee
an Officers' Certificate (which need not contain the statements
required by Section 11.5) (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash
and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the
Securities of such series to be so credited has theretofore been so
credited, (c) stating that no defaults in the payment of interest
or Events of Default with respect to such series have occurred
(which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to
make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such
series to be credited and required to be delivered to the Trustee
in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such Officers' Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable and upon its receipt by the
Trustee the Issuer shall become unconditionally obligated to make
all the cash payments or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. Failure
of the Issuer, on or before any such 60th day, to deliver or cause
to be delivered such Officers' Certificate and Securities (subject
to the parenthetical clause in the second preceding sentence)
specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable
election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to
<PAGE> 63
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 substan-
tially 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
<PAGE> 64
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.
<PAGE> 65
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
______________________, 2000.
FREEPORT-McMoRan COPPER & GOLD INC.
By:
--------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
------------------------
Name:
Title:
____________________________, as Trustee
By:
---------------------------------
Name:
Title:
[CORPORATE SEAL OF TRUSTEE]
Attest:
By:
--------------------------
Name:
Title:
<PAGE> 66
STATE OF LOUISIANA
PARISH OF ORLEANS
On this _____ day of _________________, 2000 before me
personally came _________________, to me personally known, who,
being by me duly sworn, did depose and say that he resides at
______________; that he is a ______________________ of Freeport-
McMoRan Copper & Gold Inc., one of the corporations described in
and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that
he signed his name thereto by like authority.
[NOTARIAL SEAL]
______________________________
Notary Public
<PAGE> 67
STATE OF NEW YORK
COUNTY OF NEW YORK
On this _____ day of _____________________, 2000, before me
personally came _______________, to me personally known, who, being
by me duly sworn, did depose and say that he resides at
_________________; that he is a _____________ of ________________,
one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
___________________________
Notary Public
<PAGE> 68
Exhibit 4.5
FREEPORT-McMoRan COPPER & GOLD INC., Issuer
and
_______________________, Trustee
SUBORDINATED
INDENTURE
Dated as of _____________________, 2000
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 3
Defeasance 3
Depositary 3
Dollar 3
ECU 3
Event of Default 3
Exchange Act 3
Foreign Currency 3
Guarantee 3
Holder, Holder of Securities, Securityholder 3
Indebtedness 4
Indenture 4
Insolvency Law 4
Interest 4
Interest Payment Date 4
Issuer 4
Judgment Currency 4
Officers' Certificate 4
Opinion of Counsel 4
original issue date 5
Original Issue Discount Security 5
Outstanding 5
Periodic Offering 5
Person 5
principal 6
Redemption Date 6
Redemption Price 6
Registered Global Security 6
Registered Security 6
Regular Record Date 6
Required Currency 6
Responsible Officer 6
SEC Reports 6
Securities Act 6
Security or Securities 6
Security Registrar 6
Senior Indebtedness 6
Stated Maturity 7
Trade Payables 7
Trust Indenture Act of 1939 7
Trustee 7
Unregistered Security 7
U.S. Government Obligations 7
Yield to Maturity 7
ARTICLE TWO - ISSUE, EXECUTION, FORM AND REGISTRATION OF
SECURITIES
SECTION 2.1 Forms Generally 7
SECTION 2.2 Form of Trustee's Certificate of
Authentication 8
SECTION 2.3 Amount Unlimited; Issuable in Series 9
SECTION 2.4 Authentication and Delivery of
Securities 11
SECTION 2.5 Execution of Securities 14
SECTION 2.6 Certificate of Authentication 14
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest 15
SECTION 2.8 Registration, Transfer and Exchange 15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost
and Stolen Securities 19
SECTION 2.10 Cancellation of Securities;
Disposition Thereof 20
SECTION 2.11 Temporary Securities 20
ARTICLE THREE - COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest 21
SECTION 3.2 Offices for Payments, etc. 21
SECTION 3.3 Appointment to Fill a Vacancy in
Office of Trustee 22
SECTION 3.4 Paying Agents 23
SECTION 3.5 Written Statement to Trustee 24
SECTION 3.6 Corporate Existence 24
SECTION 3.7 Luxembourg Publications 24
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 24
SECTION 4.2 Preservation and Disclosure of
Securityholders' Lists 25
SECTION 4.3 Reports by the Issuer 25
SECTION 4.4 Reports by the Trustee 25
ARTICLE FIVE - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined;
Acceleration of Maturity; Waiver of
Default 26
SECTION 5.2 Collection of Debt by Trustee;
Trustee May Prove Debt 29
SECTION 5.3 Application of Proceeds 30
SECTION 5.4 Suits for Enforcement 31
SECTION 5.5 Restoration of Rights on Abandonment
of Proceedings 31
SECTION 5.6 Limitations on Suits by
Securityholders 32
SECTION 5.7 Unconditional Right of
Securityholders to Institute Certain
Suits 32
SECTION 5.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default 32
SECTION 5.9 Control by Securityholders 33
SECTION 5.10 Waiver of Past Defaults 33
SECTION 5.11 Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances 34
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs 34
ARTICLE SIX - CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior to Default 34
SECTION 6.2 Certain Rights of the Trustee 35
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof 36
SECTION 6.4 Trustee and Agents May Hold
Securities or Coupons; Collections, etc. 37
SECTION 6.5 Monies Held by Trustee 37
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim 37
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. 38
SECTION 6.8 Persons Eligible for Appointment as
Trustee 38
SECTION 6.9 Resignation and Removal; Appointment
of Successor Trustee 38
SECTION 6.10 Acceptance of Appointment by
Successor Trustee 40
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business of Trustee 41
SECTION 6.12 Preferential Collection of Claims
Against the Issuer 41
SECTION 6.13 Appointment of Authenticating Agent 41
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders 42
SECTION 7.2 Proof of Execution of Instruments and
of Holding of Securities 43
SECTION 7.3 Holders to be Treated as Owners 43
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding 44
SECTION 7.5 Right of Revocation of Action Taken 44
SECTION 7.6 Record Date for Consents and Waivers 45
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without
Consent of Securityholders 45
SECTION 8.2 Supplemental Indentures With Consent
of Securityholders 47
SECTION 8.3 Effect of Supplemental Indenture 49
SECTION 8.4 Documents to Be Given to Trustee 49
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures 49
ARTICLE NINE - CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge,
Consolidate, Sell or Convey Property
Except Under Certain Conditions 49
SECTION 9.2 Successor Entity Substituted 50
SECTION 9.3 Opinion of Counsel to Trustee 50
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 10.1 Satisfaction and Discharge of
Indenture 51
SECTION 10.2 Application by Trustee of Funds
Deposited for Payment of Securities 55
SECTION 10.3 Repayment of Monies Held by Paying
Agent 55
SECTION 10.4 Return of Monies Held by Trustee and
Paying Agent Unclaimed for Two Years 55
SECTION 10.5 Indemnity for U.S. Government
Obligations 56
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability 56
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Securityholders 56
SECTION 11.3 Successors and Assigns of Issuer
Bound by Indenture 57
SECTION 11.4 Notices and Demands on Issuer, the
Trustee and Securityholders 57
SECTION 11.5 Officers' Certificates and Opinions
of Counsel, Statements to Be Contained Therein 57
SECTION 11.6 Payments Due on Saturdays, Sundays
and Legal Holidays 58
SECTION 11.7 Conflict of Any Provision of
Indenture with Trust Indenture Act of 1939 59
SECTION 11.8 New York Law to Govern; Separability 59
SECTION 11.9 Counterparts 59
SECTION 11.10 Effect of Headings 59
SECTION 11.11 Securities in a Foreign Currency or in ECU 59
SECTION 11.12 Judgment Currency 60
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Application of Article 60
SECTION 12.2 Notice of Redemption 60
SECTION 12.3 Payment of Securities Called for Redemption 62
SECTION 12.4 Exclusion of Certain of Securities
from Eligibility for Selection for Redemption 63
SECTION 12.5 Mandatory and Optional Sinking Funds 63
ARTICLE THIRTEEN - SUBORDINATION
SECTION 13.1 Agreement to Subordinate 65
SECTION 13.2 Payments to Securityholders 65
SECTION 13.3 Subrogation 67
SECTION 13.4 Authorization by Securityholders 68
SECTION 13.5 Notice to Trustee 68
SECTION 13.6 Trustee's Relation to Senior Indebtedness 69
SECTION 13.7 No Impairment of Subordination 70
TESTIMONIUM 71
SIGNATURES AND SEALS 72
ACKNOWLEDGMENTS 73
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended, and the
Indenture to be dated as of ___________________, 2000 between
Freeport-McMoRan Copper & Gold Inc. and ____________________, as
Trustee:
Section of the Act Section of Indenture
- ------------------ --------------------
310(a)(1), (2) and (5) 6.8
310(a)(3) and (4) Inapplicable
310(b) 6.9(a), (b) and (d)
310(c) Inapplicable
311(a) and (b) 6.12
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(b)
312(c) 4.2(c)
313(a) 4.4(a)
313(a)(5) 4.4(b)
313(b) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 3.5 and 4.3
314(b) Inapplicable
314(c) 11.5
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.11
315(e) 5.12
316(a)(1) 5.9
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.7
316(c) 7.6
317(a) 5.2
317(b) 3.4
318(a) 11.7
*This Cross Reference Sheet is not part of the Indenture.
THIS INDENTURE, dated as of __________________________, 2000
by and between Freeport-McMoRan Copper & Gold Inc. (the "Issuer"),
a Delaware corporation, and ____________________, a
______________________ corporation, as trustee (the "Trustee"),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured subordinated debentures, notes or other
evidences of indebtedness to be issued in one or more series (the
"Securities") up to such principal amount or amounts as may from
time to time be authorized by the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement of the Issuer 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
.
"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" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Indebtedness or other obligation of any other
Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation
(whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement
conditions or otherwise), or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided
that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term
"Guarantee" as used as a verb has a corresponding meaning.
"Holder", "Holder of Securities", "Securityholder" or
other similar terms mean (a) in the case of any Registered
Security, the Person in whose name such Security is registered in
the Security register kept by the Issuer for that purpose in
accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indebtedness" of any Person means at any date, without
duplication (i) all obligations of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments
(or reimbursement obligations with respect thereto), (iv) all
obligations of such Person to pay the deferred purchase price of
property or services, except Trade Payables, (v) all obligations of
such Person as a lessee under capital leases, (vi) all Indebtedness
of others secured by a lien on any asset of such Person, whether or
not such Indebtedness is assumed by such Person, (vii) all
Indebtedness of others Guaranteed by such Person.
"Indenture" means this instrument as originally executed
and delivered or, if amended or supplemented as herein provided, as
so amended or supplemented or both, and shall include the forms and
terms of particular series of Securities established as
contemplated hereunder.
"Insolvency Law" means any applicable bankruptcy,
insolvency, reorganization or similar law in any applicable
jurisdiction.
"Interest" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Issuer" means Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation, and, subject to Article Nine, its successors
and assigns.
"Judgment Currency" shall have the meaning set forth in
Section 11.12.
"Officers' Certificate" means a certificate signed by the
chairman of the board or the president or any vice president
(whether or not designated by a number or numbers or a word or
words added before or after the title "Vice President") and by the
treasurer or any assistant treasurer or the secretary or any
assistant secretary 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 canceled 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 the Chairman of the Board of Directors, the
President, the Secretary, the Treasurer, or any other officer of
the Trustee customarily performing corporate trust functions.
"SEC Reports" shall have the meaning set forth in Section
4.3.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security" or "Securities" has the meaning stated in the
first recital of this Indenture and more particularly means any
Securities of any series, authenticated and delivered under this
Indenture.
"Security Registrar" means the Trustee or any successor
Security Registrar appointed by the Issuer.
"Senior Indebtedness" means all Indebtedness of the
Issuer (other than the Securities) including principal and interest
(including, without limitation, any interest that would accrue but
for the filing of a petition initiating any proceeding referred to
in Section 13.2 hereof) on such Indebtedness, whether outstanding
on the date of the first issuance of any Securities or created,
incurred or assumed thereafter, unless such Indebtedness, by its
terms or the terms of the instrument creating or evidencing it, is
subordinate in right of payment to, or pari passu with, the
Securities; provided, that the term Senior Indebtedness shall not
include (a) any Indebtedness of the Issuer which is without
recourse to the Issuer when incurred without respect to any
election under Section 1111(b) of Title 11, United States Code, (b)
any Indebtedness of the Issuer to an affiliate of the Issuer and
any refinancing thereof, (c) Indebtedness to any employee of the
Issuer and (d) Trade Payables.
"Stated Maturity" means, with respect to any Security,
the date specified in such Security as the fixed date on which the
principal of such security is due and payable, including pursuant
to any mandatory redemption provision (but excluding any provision
providing for the repurchase of such security at the option of the
Holder thereof upon the happening of any contingency unless such
contingency has occurred) and with respect to any installment of
interest upon such Security, the date specified in such Security,
or Coupon appertaining thereto, if applicable as the fixed date on
which such installment of interest is due and payable.
"Trade Payables" means accounts payable for any other
indebtedness or monetary obligations to trade creditors created or
assumed by the Issuer or any subsidiary of the Issuer in the
ordinary course of business in connection with the obtaining of
materials or services.
"Trust Indenture Act of 1939" (except as otherwise
provided in Sections 8.1 and 8.2) means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was
originally executed.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article
Six, shall also include any successor trustee. "Trustee" shall
also mean or include each Person who is a trustee hereunder and if
at any time there is more than one such Person, "Trustee" as used
with respect to the Securities of any series shall mean the trustee
with respect to the Securities of such series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning set
forth in Section 10.1(A).
"Yield to Maturity" means the yield to maturity on a
series of Securities, calculated at the time of the issuance of
such series, or, if applicable, at the most recent redetermination
of interest on such series, and calculated in accordance with
generally accepted financial practice.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, issued hereunder shall be substantially in
such form and bear such legends (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more
Board Resolutions of the Issuer (as set forth in a Board Resolution
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 executing such Securities and Coupons,
if any, as evidenced by their execution of such Securities and
Coupons, if any. If temporary Securities of the Issuer 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.
____________________________, 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.
______________________________, Trustee
By:
------------------------------
As Authenticating Agent
By:
------------------------------
"Authorized Officer"
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each
such series shall rank equally and pari passu with the Securities
of each other series, but all Securities hereunder shall be
subordinate and junior in right of payment, to the extent and
manner set forth in Article 13, to all Senior Indebtedness of the
Issuer. There shall be established in or pursuant to one or more
Board Resolutions 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, 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 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 satis-
faction of other conditions, the form and terms of such
certificates, documents or conditions;
(17) any trustees, depositaries authenticating or paying
agents, transfer agents or registrars or any other agents with
respect to the Securities of such series;
(18) any deletions from, modifications of or additions to
the Events of Default or covenants set forth herein (including
any defined terms relating thereto);
(19) provisions, if any, granting specific rights to
Holders or Securities of such series upon the occurrence of
certain events as may be specified;
(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 such Company Order, without any
further action by the Issuer. The maturity date, original issue
date, interest rate and any other terms of the Securities of such
series and Coupons, if any, appertaining thereto shall be
determined by or pursuant to such Company Order or procedures
authorized by such Company Order. If provided for in such
procedures, such Company Order may authorize authentication and
delivery of Securities pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be
promptly confirmed in writing. In authenticating such Securities
and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to
receive (in the case of subparagraphs 2, 3 and 4 below only at or
before the time of the first request of the Issuer to the Trustee
to authenticate Securities of such series) and (subject to Section
6.1) shall be fully protected in relying upon, unless and until
such documents have been superseded or revoked:
(1) a Company Order requesting such authentication and
setting forth delivery instructions if the Securities and
Coupons, if any, are not to be delivered to the Issuer,
provided that, with respect to Securities of a series subject
to a Periodic Offering, (a) such Company Order may be
delivered by the Issuer to the Trustee prior to the delivery
to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to
time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series,
pursuant to a Company Order or pursuant to procedures
acceptable to the Trustee as may be specified from time to
time by a Company Order, (c) the maturity date or dates,
original issue date or dates or interest rate or rates and any
other terms of Securities of such series shall be determined
by a Company Order or pursuant to such procedures and (d) if
provided for in such procedures, such Company Order may
authorize authentication and delivery of Securities pursuant
to oral or electronic instructions from the Issuer or its duly
authorized agent or agents, which oral or electronic
instructions shall be promptly confirmed in writing, and (e)
after the original issuance of the first Security of such
series to be issued, any separate request by the Issuer that
the Trustee authenticate Securities of such series for
original issuance will be deemed to be a certification by the
Issuer that it is in compliance with all conditions precedent
provided for in this Indenture relating to the authentication
and delivery of such Securities;
(2) any Board Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Sections 2.1
and 2.3 by or pursuant to which the forms and terms of the
Securities and Coupons, if any, were established;
(3) an Officers' Certificate setting forth the form or
forms and terms of the Securities 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 provi-
sions 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 pur-
chasers 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
to the best of counsel's knowledge any agreement or other
instrument binding upon the Issuer that is material to
the Issuer or, to the best of such counsel's knowledge
but without any independent investigation, any judgment,
order or decree of any governmental body, agency or court
having jurisdiction over the Issuer and no consent,
approval or authorization of any governmental body or
agency is required for the performance by the Issuer of
its obligations under the Securities and Coupons, if any,
except such as are specified and have been obtained and
such as may be required by the securities or blue sky
laws of the various states in connection with the offer
and sale of the Securities and Coupons, if any.
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Such counsel may rely upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel
reasonably satisfactory to the Trustee, in which case the opinion
shall state that such counsel believes he and the Trustee are
entitled so to rely. Such counsel may also state that, insofar as
such opinion involves factual matters, he has relied, to the extent
he deems proper, upon certificates of officers of the Issuer and
any of its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being
advised by counsel, determines that such action may not lawfully be
taken by the Issuer or if the Trustee in good faith by its Board of
Directors or board of trustees, executive committee, or a trust
committee of directors or trustees or Responsible Officers shall
determine that such action would expose the Trustee to personal
liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture
or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that all
or a portion of the Securities of a series are to be issued in the
form of one or more Registered Global Securities, then the Issuer
shall execute and the Trustee shall, in accordance with this
Section 2.4 and the Company Order with respect to such series,
authenticate and deliver one or more Registered Global Securities
that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all or a portion of the
Securities of such series issued and not yet canceled 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 main-
tained 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 in interest in
default, as the case may be, will not be payable on such Interest
Payment Date or subsequent date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such
Unregistered Security, but will be payable only to the Holder of
such Coupon when due in accordance with the provisions of this
Indenture. All Securities and Coupons surrendered upon any
exchange or transfer provided for in this Indenture shall be
promptly canceled 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) to register the
transfer of or exchange any Security if the Holder thereof has
exercised his right, if any, to require the Issuer to repurchase
such Security in whole or in part, except the portion of such
Security not required to be repurchased or (d) to exchange any
Unregistered Security so selected for redemption, except that such
Unregistered Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered Security
shall be simultaneously surrendered for redemption.
Notwithstanding any other provision of this Section 2.8,
unless and until it is exchanged in whole or in part for Securities
in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may not
be transferred except as a whole by the Depositary for such series
to a nominee of such Depositary or by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of
a series represented by one or more Registered Global Securities
notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Securities 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
canceled 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
computed for federal income tax purposes, the interest payable on
the Unregistered Securities) under then applicable United States
federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any
Coupon appertaining to any Security shall become mutilated, defaced
or be apparently destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of any officer
of the Issuer, the Trustee shall authenticate and deliver a new
Security of the same series, of like tenor and in equal aggregate
principal amount, bearing a number or other distinguishing symbol
not contemporaneously outstanding, in exchange and substitution for
the mutilated or defaced Security, or in lieu of and in
substitution for the Security so apparently destroyed, lost or
stolen and, if applicable, 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 canceled 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 canceled
Securities and Coupons held by it and deliver a certificate of
disposition to the Issuer unless the Issuer shall direct that
canceled 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, ____) 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 of 1939.
(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 _________ of each year, commencing with the first _____
following the first issuance of Securities pursuant to Section 2.4,
if required by Section 313(a) of the Trust Indenture Act of 1939,
the Trustee shall transmit, pursuant to Section 313(c) of the Trust
Indenture Act, a brief report dated as of such ______ with respect
to any of the events specified in said Section 313(a) which may
have occurred since the later of the immediately preceding
________________________ and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act and Section 5.11 hereof
at the times specified therein.
(c) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by Section
313(c) 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) above shall cease or be cured,
waived, rescinded or annulled, then the Event of Default hereunder
by reason thereof, and any acceleration under this Section 5.1
resulting solely therefrom, shall be deemed likewise to have been
thereupon cured, waived, rescinded or annulled without further
action on the part of either the Trustee or any of the
Securityholders.
If an Event of Default (other than those specified in Section
5.1(d) or (e)) with respect to one or more 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 (each series voting as a separate 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 the
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 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 (each series
voting as a separate 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, each
series treated as a separate 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. 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. The
Trustee for each series of Securities hereunder shall at all times
be a corporation organized and doing business under the laws of the
United States of America or of any State or the District of
Columbia having a combined capital and surplus of at least
$50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination
by Federal, State or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published. At no time shall the Trustee be
an obligor, or directly or indirectly, control, be controlled by,
or under the common control with any obligor upon any Securities
issued hereunder. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect
specified in Section 6.9.
The provisions of this Section 6.8 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.9 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or
all series of Securities by giving written notice of resignation to
the Issuer. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors of the Issuer, one
copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any
series and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Securityholder who has been a bona fide
Holder of a Security or Securities of the applicable series for at
least six months may, subject to the provisions of Section 5.12, on
behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall
occur:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act of
1939 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who
has been a bona fide Holder of a Security or Securities for at
least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.8 or Section
310(a) of the Trust Indenture Act of 1939 and shall fail to
resign after written request therefor by the Issuer or by any
such Securityholder; or
(iii) the Trustee shall become incapable of
acting with respect to any series of Securities, or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator
of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a
successor trustee for such series by written instrument, in
duplicate, executed by order of the Board of Directors of the
Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 5.12, any Securityholder who
has been a bona fide Holder of a Security or Securities for at
least six months may on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee
with respect to such series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal
amount of the Securities of each series at the time outstanding may
at any time remove the Trustee with respect to such series and
appoint a successor trustee with respect to such series by
delivering to the Trustee so removed, to the successor trustee so
appointed and to the Issuer the evidence provided for in Section 7.
1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with
respect to any series and any appointment of a successor trustee
with respect to such series pursuant to any of the provisions of
this Section 6.9 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.10.
(e) The Issuer shall give notice of each resignation and
each removal of the Trustee of each series of Securities 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 the 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 Trus-
tee'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 which
shall be acceptable to the Issuer and the Issuer shall provide
notice of such appointment to all Holders of Securities of such
series in the manner and to the extent provided in Section 11.4.
Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers,
duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer
agrees to pay to the Authenticating Agent for such series from time
to time reasonable compensation. The Authenticating Agent for the
Securities of any series shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and, as agent of the Trustee, 7.3 shall
be applicable to any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by
Securityholders of any or all series may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Securityholders in person or by agent duly appointed
in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of
any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.1 and 6.2, the execution of
any instrument by a Securityholder or his agent or proxy may be
proved in the following manner:
(a) The fact and date of the execution by any Holder or
his agent or proxy of any instrument, or the authority of such
an agent or proxy to execute such instrument, may be proved by
the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instruments
acknowledged to him the execution thereof, or by an affidavit
of a witness to such execution sworn to before any such notary
or other such officer. Where such execution is by or on
behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute sufficient
proof of the authority of the Person executing the same. The
fact of the holding by any Holder of an Unregistered Security
of any series, and the identifying number of such Security and
the date of his holding the same, may be proved by the
production of such Security or by a certificate executed by
any trust company, bank, or recognized securities dealer
wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory.
Each such certificate shall be dated and shall state that on
the date thereof a Security of such series bearing a specified
identifying number was deposited with or exhibited to such
trust company, bank, or recognized securities dealer by the
Person named in such certificate. Any such certificate may be
issued in respect of one or more Unregistered Securities of
one or more series specified therein. The holding by the
Person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed
to continue for a period of one year from the date of such
certificate unless at the time of any determination of such
holding (1) another certificate bearing a later date issued in
respect of the same Securities shall be produced, or (2) the
Security of such series specified in such certificate shall be
produced by some other Person, or (3) the Security of such
series specified in such certificate shall have ceased to be
Outstanding. Subject to Sections 6.1 and 6.2, the fact and
date of the execution of any such instrument and the amount
and numbers of Securities of any series held by the Person so
executing such instrument and the amount and numbers of any
Security or Securities for such series may also be proven in
accordance with such reasonable rules and regulations as may
be prescribed by the Trustee for such series or in any other
manner which the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership
of such Securities shall be proved by the Security register or
by a certificate of the Security Registrar.
SECTION 7.3 Holders to be Treated as Owners. Prior to
surrender of a Security for registration of transfer, the Issuer,
the Trustee and any agent of the Issuer, or the Trustee may deem
and treat the Person in whose name any Registered Security shall be
registered upon the Security register as the absolute owner of such
Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture,
interest on such Security and for all other purposes; and neither
the Issuer, the Trustee nor any agent of the Issuer or the Trustee
shall be affected by any notice to the contrary. The Issuer, the
Trustee and any agent of the Issuer, or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as
the absolute owner of such Unregistered Security or Coupon (whether
or not such Unregistered Security or Coupon shall be overdue) for
the purpose of receiving payment thereof or on account thereof and
for all other purposes and neither the Issuer, the Trustee nor any
agent of the Issuer, or the Trustee shall be affected by notice to
the contrary. All such payments so made to any such Person, or
upon his order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for
monies payable upon any such Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities have concurred
in any direction, consent or waiver under this Indenture,
Securities which are owned by the Issuer or any other obligor on
the Securities or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities shall be
disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such
direction, consent or waiver 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 any (i) notice of
Default, (ii) declaration under 5.1, (iii) request to institute
proceedings referred to in Section 5.6 or (iv) 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 Board Resolutions
(which resolutions may provide general terms or parameters for such
action and may provide that the specific terms of such action may
be determined in accordance with or pursuant to a Company Order)
and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act of 1939 as in force at
the date of the execution thereof) for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more
series any property or assets;
(b) to evidence the succession of another entity to the
Issuer or successive successions, and the assumption by the
successor entity of the respective covenants, agreements and
obligations of the Issuer under this Indenture or any
supplemental indenture;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions or to
surrender any right, power or option conferred by this
Indenture on the Issuer as its Board of Directors and the
Trustee shall consider to be for the protection or benefit of
the Holders of all or any series Securities or Coupons of any
series (and if such covenants are to be for the benefit of
less than all series of Securities, stating that such
covenants are being added solely for the benefit of such
series), and to make the occurrence, or the occurrence and
continuance, of a Default in any such additional covenants,
restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth;
provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event
of Default or may limit the right of the Holders of a majority
in aggregate principal amount of the Securities of such series
to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental
indenture, or to make any other provisions in regard to
matters or questions under this Indenture in any supplemental
indenture as the Issuer may deem necessary or desirable,
provided, that no action under this clause (d) shall adversely
affect the interests of the Holders of the Securities or
Coupons;
(e) to establish the form or terms of Securities of any
series or of the Coupons appertaining to such Securities as
permitted by Sections 2.1 and 2.3;
(f) to make any change to comply with any requirement of
the Commission in connection with the qualification of the
Indenture under the Trust Indenture Act of 1939, as amended;
and
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the
requirements of Section 6.10; 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 or Resolutions (which Resolutions
may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in
accordance with or pursuant to a Company Order) and the Trustee
may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the
date of execution thereof) for the purpose of adding, any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities
of such series or of the Coupons appertaining to such Securities;
provided, that no such supplemental indenture shall (a) 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 of)
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, in each case, without the consent of the Holder of each
Security so affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or of Coupons appertaining to such
Securities, or which modifies the rights of Holders of Securities
of such series with respect to such covenant or provision, shall be
deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series or of the Coupons appertaining to
such Securities.
Upon the request of the Issuer, accompanied by copies of Board
Resolutions of the Issuer (which resolutions may provide general
terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with
or pursuant to a Company Order) certified by the secretary or an
assistant secretary of the Issuer authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Securityholders and other documents,
if any, required by Section 7.1 the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient
if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this
Section, the Issuer shall give notice thereof setting forth in
general terms the substance of such supplemental indenture, (i) to
the Holders of the Outstanding Registered Securities of each series
affected thereby, by mailing a notice thereof by first-class mail
to such Holders at their addresses as they shall appear on the
security register, (ii) if any Unregistered Securities of a series
affected thereby are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee for such
purpose within two years preceding the giving of such notice, by
mailing a notice thereof by first-class mail to such Holders at
such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then 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 entity 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, limited liability company or
partnership organized under the laws of the United States of
America or any State thereof or the District of Columbia, and shall
expressly assume, by supplemental indenture, in form satisfactory
to the Trustee, executed and delivered to the Trustee by such
entity pursuant to Article Eight hereof, all of the payment
obligations of the Issuer pursuant to this Indenture and the
Securities of all series and Coupons, if any, appertaining thereto
and the due and punctual performance of every covenant of this
Indenture on the part of the Issuer to be performed or observed;
and (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
entity, such successor entity 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 entity may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered
to the Trustee; and, upon the order of such successor entity,
instead of the Issuer, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities 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 entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose.
All of the Securities so issued together with any Coupons
appertaining thereto shall in all respects have the same legal rank
and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as
though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, 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 entity which shall theretofore
have become such in the manner described in this Article) shall be
discharged from all obligations and covenants under this Indenture
and the Securities and may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel 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 amount identified in subsection (x), (y) or (z)
below (other than monies repaid by the Trustee or any paying agent
to the Issuer in accordance with Section 10.4) or specifically
pledged as security for and dedicated solely to the benefit of the
Holders of the Securities of such series and Coupons appertaining
thereto, (x) cash in an amount, (y) in the case of any series of
Securities the payments on which may only be made in Dollars,
direct obligations of the United States of America, backed by its
full faith and credit ("U.S. Government Obligations"), maturing as
to principal and interest at such times and in such amounts as will
insure the availability of cash not later than one day before the
due date of payments in respect of the Securities, or (z) a
combination thereof, sufficient (without investment of such cash or
reinvestment of any interest or proceeds from such U.S. Government
Obligations) in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay the principal of and
interest on all Securities of such series and Coupons appertaining
thereto on each date that such principal or interest is due and
payable (whether at maturity or through operation of a mandatory
sinking fund other than any redemption 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, and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced or
apparently destroyed, lost or stolen Securities or Coupons, (iii)
rights of the Holders of Securities and Coupons appertaining
thereto to receive from the property so deposited payments of
principal thereof and interest on the original stated due dates
therefor (but not upon acceleration) or the Redemption Date 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), 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 and the Issuer's right
of optional redemption, if any, (ii) substitution of mutilated,
defaced or apparently destroyed, lost or stolen Securities or
Coupons, (iii) rights of Holders of Securities or Coupons
appertaining thereto to receive from the property so deposited
payments of principal thereof and interest thereon on the original
stated due dates therefor (but not on acceleration) or the
Redemption Date 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), (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 other than any redemption or repayment at the option
of the Holder);
(b) no Default or 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, to
the effect that 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, other than with
respect to the interest earned on the amounts defeased, 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 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, other than any redemption or
repayment at the option of the Holder);
(b) no Default or Event of Default or event which with
notice or lapse of time or both would become an Event of
Default with respect to the Securities shall have occurred and
be continuing on the date of such deposit or, insofar as
subsections 5.1(d) and (e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(c) such covenant defeasance will not result in a breach
or violation of, or constitute a default under, 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, other than with
respect to the interest earned on the amounts defeased, for
Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred; and (ii) that the trust arising from such deposit
shall not constitute an "investment company" or an entity
"controlled" by an "investment company" as such terms are
defined in The Investment Company Act of 1940, as amended; and
(g) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the covenant
defeasance contemplated by this provision have been complied
with.
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4 all monies and
securities deposited with the Trustee pursuant to Section 10.1
shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Issuer acting
as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for
the payment or redemption of which such monies or securities have
been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such monies or securities
need not be segregated from other funds except to the extent
required by law.
SECTION 10.3 Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture
with respect to the Securities of any series 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 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 the 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, or by operation of Section 318(c)
thereof, such duties and required provision shall control except
as, and to the extent, such provision is expressly excluded from
this Indenture, as permitted by the Trust Indenture Act of 1939.
SECTION 11.8 New York Law to Govern; 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 pur-
chase 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.
At least one Business Day prior to the Redemption Date
specified in the notice of redemption given as provided in this
Section, the Issuer will deposit with the Trustee or with one or
more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the
Redemption Date all the Securities of such series to be redeemed at
the appropriate Redemption Price, together with accrued interest to
and including the Redemption Date. If less than all Securities of
any series are to be redeemed, the Issuer will deliver to the
Trustee at least 70 days prior to the Redemption Date an Officers'
Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer
prior to the expiration of any restriction on such redemption or
subject to compliance with conditions precedent, the Issuer shall
deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such restriction or condition has been
complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify
the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series
selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities of any series shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be
redeemed. In case of a redemption at the election of the Issuer
prior to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an
Officers' Certificate stating that such restriction has been
complied with.
SECTION 12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the
Securities or portions of Securities specified in such notice shall
become due and payable on the Redemption Date and at the place
stated in such notice at the applicable Redemption Price, together
with interest accrued to and including the Redemption Date, and on
and after said Redemption Date (unless the Issuer shall default in
the payment of such Securities at the Redemption Price, together
with interest accrued to said Redemption Date) interest on the
Securities or portions of Securities so called for redemption
shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and such Securities shall cease
from and after the Redemption Date to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have
no right in respect of such Securities to be redeemed except the
right to receive the applicable Redemption Price thereof and unpaid
interest to and including the Redemption Date. On surrender of
such Securities at a place of payment specified in said notice,
together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the
applicable Redemption Price, together with interest accrued
thereon, to and including the Redemption Date; provided that any
payment of interest becoming due on or prior to the Redemption Date
shall be payable in the case of Securities with Coupons attached
thereto, to the Holders of the Coupons for such interest upon
surrender thereof, and in the case of Registered Securities,
registered as such on the relevant Regular Record Date subject to
the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until
paid or duly provided for, bear interest from the Redemption Date
at the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons
maturing after the date fixed for redemption, the surrender of such
missing Coupon or Coupons may be waived by the Issuer and the
Trustee, if there be furnished to each of them such security or
indemnity as they may require to save each of them harmless.
Upon surrender of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver
to or on the order of the Holder thereof, at the expense of the
Issuer, a new Security or Securities for such series, of authorized
denominations, in principal amount equal to the unredeemed portion
of the Security so prescribed.
SECTION 12.4 Exclusion of Certain Securities From Eligibility
for Selection for Redemption. Securities shall be excluded from
eligibility for selection for redemption if they are identified by
registration and certificate number in an Officers' Certificate of
the Issuer delivered to the Trustee at least 45 days prior to the
last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in
such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the
terms of the Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of the Securities of any
series is herein referred to as an "optional sinking fund payment".
The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the
Issuer may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except
upon redemption pursuant to the mandatory sinking fund) by the
Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee
for cancellation pursuant to Section 2.10, (b) receive credit for
optional sinking fund payments (not previously so credited) made
pursuant to this Section, or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee
an Officers' Certificate (which need not contain the statements
required by Section 11.5) (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash
and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the
Securities of such series to be so credited has theretofore been so
credited, (c) stating that no defaults in the payment of interest
or Events of Default with respect to such series have occurred
(which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to
make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such
series to be credited and required to be delivered to the Trustee
in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such Officers' Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable and upon its receipt by the
Trustee the Issuer shall become unconditionally obligated to make
all the cash payments or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. Failure
of the Issuer, on or before any such 60th day, to deliver or cause
to be delivered such Officers' Certificate and Securities (subject
to the parenthetical clause in the second preceding sentence)
specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable
election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver
or credit Securities of such series in respect thereof and (ii)
that the Issuer will make no optional sinking fund payment with
respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund
payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) or a lesser sum in Dollars
(or the equivalent thereof in any Foreign Currency or ECU) if the
Issuer shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption.
If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of
$50,000 (or the equivalent thereof in any Foreign Currency or ECU)
is available. The Trustee shall select, in the manner provided in
Section 12.2 and subject to the limitations in Section 12.4, for
redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly
as may be 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 substan-
tially the manner provided in Section 12.2 (and with the effect
provided in Section 12.3) for the redemption of Securities of such
series in part at the option of the Issuer. The amount of any
sinking fund payments not so applied or allocated to the redemption
of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund monies held on the stated
maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such series
shall be applied, together with other monies, if necessary,
sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund monies or give any notice
of redemption of Securities for such series by operation of the
sinking fund during the continuance of a default in payment of
interest on such Securities or of any Event of Default except that,
where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be
redeemed such Securities, provided that it shall have received from
the Issuer a sum sufficient for such redemption. Except as
aforesaid, any monies in the sinking fund for such series at the
time when any such default or Event of Default shall occur, and any
monies thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have
been collected under Article Five and held for the payment of all
such Securities. In case such Event of Default shall have been
waived as provided in Section 5.10 or the default cured on or
before the sixtieth day preceding the sinking fund payment date in
any year, such monies shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Agreement to Subordinate. The Issuer covenants
and agrees, and each Holder of a Security or Coupon issued
hereunder, by his acceptance thereof, likewise covenants and
agrees, that all Securities and Coupons shall be issued subject to
the provisions of this Article; and each Person holding any
Security or Coupon, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that the
principal of and interest on all Securities and Coupons issued
hereunder shall, to the extent and in the manner herein set forth,
be subordinated and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and that the
subordination is for the benefit of the holders of the Senior
Indebtedness.
SECTION 13.2 Payments to Securityholders. As to each series
of Securities and Coupons, if any, issued hereunder, in the event
(a) of any insolvency or bankruptcy proceedings, or any
receivership, dissolution, winding-up, total or partial
liquidation, reorganization or other similar proceedings in respect
of the Issuer or a substantial part of its property, whether
voluntary or involuntary, or (b) that (i) a default shall have
occurred with respect to the payment of principal of or interest on
or other monetary amounts due and payable with respect to any
Senior Indebtedness, or (ii) there shall have occurred an event of
default (other than a default in the payment of principal or
interest or other monetary amounts due and payable) in respect of
any Senior Indebtedness, as defined in such Senior Indebtedness or
in the instrument under which the same is outstanding, permitting
the holder or holders thereof to accelerate the maturity thereof,
and such default or event of default shall not be cured and was
continued beyond the period of grace, if any, in respect thereof,
and such default or event of default shall not have been waived or
shall not have ceased to exist, or (c) separately with respect to
each series of Securities, that the principal of and accrued
interest on such Securities shall have been declared due and
payable pursuant to Section 5.1 and such declaration shall not have
been rescinded and annulled as provided in Section 5.1, then in the
case of any of the events set forth in subsection (a), (b) or (c)
above, the holders of all Senior Indebtedness shall first be
entitled to receive payment in full of all amounts due or to become
due thereon, or provision shall be made, in accordance with the
terms of such Senior Indebtedness, for such payment in money or
money's worth, before the Holders of such series of Securities or
Coupons are entitled to receive a payment on account of the
principal of or interest on the indebtedness evidenced by such
series of Securities or of such Coupons, including, without
limitation, any payments made pursuant to Article Twelve, or any
cash payments to purchase such series of Securities at the option
of the Holders thereof.
Upon any such insolvency or bankruptcy proceeding,
receivership, dissolution, winding-up, total or partial
liquidation, reorganization, or other similar proceeding referred
to in clause (a) of the immediately preceding paragraph, any
payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, to which the
Holders of the Securities and any Coupon or the Trustee under this
Indenture would be entitled, except for the provisions hereof,
shall be paid by the Issuer or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution or, to the extent required by the next
succeeding paragraph, by the Holders of the Securities or any
Coupons or the Trustee, if received by them or it, directly to the
holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such
holders) or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, as
their respective interests may appear, to the extent necessary to
pay all Senior Indebtedness in full after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the
Holders of the indebtedness evidenced by the Securities or any
Coupons (including any cash payments to repurchase such Securities
at the option of the Holders thereof) or to the Trustee under this
Indenture.
Each Securityholder hereby irrevocably authorizes and empowers
(without imposing any obligation on) the holders of the Issuer's
Senior Indebtedness (or any trustee or agent on behalf thereof),
under the circumstances set forth in the immediately preceding
paragraph, to demand, sue for, collect and receive every such
payment or distribution described therein and give acquittance
therefor, to file claims and proofs of claims in any statutory or
nonstatutory proceeding, to vote the Issuer's Senior Indebtedness
holder's ratable share of the full amount of the Indebtedness
represented by the Outstanding Securities and Coupons in its sole
discretion in connection with any resolution, arrangement, plan of
reorganization, compromise, settlement or extension and to take all
such other action (including, without limitation, the right to
participate in any composition of creditors and the right to vote
such the Issuer's Senior Indebtedness holders' ratable share of the
Indebtedness represented by the Outstanding Securities and Coupons
at creditors' meetings for the election of trustees, acceptances of
plans and otherwise), in the name of the Securityholder, as such
the Issuer's Senior Indebtedness holder or its representative may
deem necessary or desirable for the enforcement of these
subordination provisions.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Issuer of any kind or character,
whether in cash, property or securities, prohibited by the
foregoing provisions of this Section, shall be received by the
Trustee under this Indenture or the Holders of the Securities or
any Coupons before all Senior Indebtedness is paid in full or
provision is made for such payment in accordance with its terms,
then such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of
such Senior Indebtedness or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have
been issued, as their respective interests may appear, for
application to the payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall have been paid in
full in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of such
Senior Indebtedness; provided that the Trustee shall not be liable
for any payment prohibited by this Section 13.2 if the Trustee did
not have knowledge that such payment or distribution was prohibited
pursuant to this Section.
For purposes of this Article only, the words, "cash, property
or securities" shall not be deemed to include shares of stock of
the Issuer as reorganized or readjusted, or securities or other
Indebtedness of the Issuer or any other corporation provided for by
a plan of arrangement, reorganization or readjustment, the payment
of which is subordinated (at least to the extent provided in this
Article with respect to the Securities or any Coupons) to the
payment of all Senior Indebtedness which may at the time be
outstanding; provided that (i) the Senior Indebtedness is assumed
by the new corporation, if any, resulting from any such
arrangement, reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness are not, without the consent
of such holders, altered by such arrangement, reorganization or
readjustment. The consolidation of the Issuer with, or the merger
of the Issuer with or into, another corporation or the liquidation
or dissolution of the Issuer following the conveyance or transfer
of all or substantially all of its assets to another corporation
upon the terms and conditions provided in Article Nine shall not be
deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section if such other corporation shall, as a
part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Nine. Nothing in this
Section shall apply to claims of, or payments to, the Trustee under
or pursuant to Article Six, except as expressly provided therein.
This Section shall be subject to the further provisions of Section
13.5.
SECTION 13.3 Subrogation. Subject to the payment in full of
all Senior Indebtedness, the Holders of the Securities and any
Coupons subject to the provisions of Section 13.2 shall be
subrogated (equally and ratably with the holders of all obligations
of the Issuer which by their express terms are subordinated to
Senior Indebtedness of the Issuer to the same extent as the
Securities are subordinated and which are entitled to like rights
of subrogation) to the rights of the holders of Senior Indebtedness
to receive payments or distributions of cash, property or
securities of the Issuer applicable to the Senior Indebtedness
until the principal of and interest on such Securities and the
amounts owed pursuant to any such Coupons shall be paid in full;
and, for the purpose of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any
cash, property or securities to which the Holders of such
Securities or any such Coupons or the Trustee on their behalf would
be entitled except for the provisions of this Article, and no
payment over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of such Securities or any
such Coupons or the Trustee on their behalf shall, as between the
Issuer, its creditors other than holders of Senior Indebtedness and
the Holders of such Securities or any such Coupons, be deemed to be
a payment by the Issuer to or on account of the Senior
Indebtedness; and no payments or distributions of cash, property or
securities to or for the benefit of the Securityholders pursuant to
the subrogation provision of this Article, which would otherwise
have been paid to the holders of Senior Indebtedness, shall be
deemed to be a payment by the Issuer to or for the account of such
Securities. The provisions of this Article are intended solely for
the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
between the Issuer, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities, the obligation of
the Issuer, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of and interest on the
Securities and the amounts owed pursuant to any Coupons as and when
the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights
against the Issuer of the Holders of the Securities and creditors
of the Issuer other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Holder of any Security
or the Trustee on his behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or securities of
the Issuer received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Issuer
referred to in this Article, the Trustee, subject to the provisions
of Sections 6.1 and 6.2, and the Holders of the Securities and any
Coupons shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction in which such insolvency,
bankruptcy, dissolution, winding-up, liquidation, arrangement or
reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities and of any Coupons, for
the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Issuer, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 13.4 Authorization by Securityholders. Each Holder of
a Security or Coupon by his acceptance thereof authorizes the
Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and
all such purposes.
SECTION 13.5 Notice to Trustee. The Issuer shall give prompt
written notice to the Trustee and to any paying agent of any fact
known to the Issuer which would prohibit the making of any payment
of monies to or by the Trustee or any paying agent in respect of
the Securities or any Coupons pursuant to the provisions of this
Article. Regardless of anything to the contrary contained in this
Article or elsewhere in this Indenture, the Trustee shall not be
charged with knowledge of the existence of any Senior Indebtedness
or of any default or event of default with respect to any Senior
Indebtedness or of any other facts which would prohibit the making
of any payment of monies to or by the Trustee in respect of the
Securities or any Coupons, unless and until the Trustee shall have
received notice in writing (which may be by telegram, telecopy or
other similar writing) at its Corporate Trust Office to that effect
signed by an officer of the Issuer, or by a holder or agent of a
holder of Senior Indebtedness who shall have been certified by the
Issuer or otherwise established to the reasonable satisfaction of
the Trustee to be such holder or agent, or by the trustee under any
indenture pursuant to which Senior Indebtedness shall be
outstanding, and, prior to the receipt of any such written notice,
the Trustee shall, subject to Sections 6.1 and 6.2, be entitled to
assume that no such facts exist; provided that if on a date at
least two Business Days prior to the date upon which by the terms
hereof any such monies shall become payable for any purpose
(including, without limitation, the payment of the principal of or
interest on any Security) the Trustee shall not have received with
respect to such monies the notice provided for in this Section,
then, regardless of anything herein to the contrary, the Trustee
shall have full power and authority to receive such monies and to
apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.
Regardless of anything to the contrary herein (but subject, in
the case of clause (a) of this paragraph, to the second paragraph
of Section 13.2), nothing shall prevent (a) any payment by the
Issuer or the Trustee to the Securityholders of amounts in
connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article Twelve prior to the
receipt by the Trustee of written notice as aforesaid, and (ii)
such notice of redemption is given not earlier than 60 days before
the Redemption Date, or (b) any payment by the Trustee to the
Securityholders of amounts deposited with it pursuant to Section
10.1, provided, that, in the case of Section 10.1(B), the
applicable Securities are deemed to have been paid and discharged,
and in the case of Section 10.1(A), the Trustee shall not have
received, by at least two Business Days prior to the date of
execution of instruments acknowledging the satisfaction of and
discharge of this Indenture with respect to the applicable
Securities, the notice provided in the preceding paragraph.
Subject to Sections 6.1 and 6.2, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a
trustee on behalf of such holder) to establish that such notice has
been given by a holder of Senior Indebtedness or a trustee on
behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant
to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished
the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 13.6 Trustee's Relation to Senior Indebtedness. The
Trustee and any agent of the Issuer or the Trustee shall be
entitled to all the rights set forth in this Article with respect
to any Senior Indebtedness which may at any time be held by it in
its individual or any other capacity to the same extent as any
other holder of Senior Indebtedness and nothing in Section 6.13 or
elsewhere in this Indenture shall deprive the Trustee or any such
agent of any of its rights as such holder. Nothing in this Article
shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.6.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness and,
subject to the provisions of Sections 6.1 and 6.2, the Trustee
shall not be liable to any holder of Senior Indebtedness if it
shall in good faith pay over or deliver to Holders of Securities,
the Issuer or any other Person monies or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this Article
or otherwise.
SECTION 13.7 No Impairment of Subordination. No right of any
present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of
the Issuer or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Issuer with the terms,
provisions and covenants of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be
charged with.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of
_____________________, 2000.
FREEPORT-McMoRan COPPER & GOLD INC.
By:
---------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
-------------------
Name:
Title:
____________________________, as Trustee
By:
--------------------------
Name:
Title:
[CORPORATE SEAL OF TRUSTEE]
Attest:
By:
------------------------
Name:
Title:
STATE OF LOUISIANA
PARISH OF ORLEANS
On this ____ day of ______________________, 2000 before me
personally came _________________, to me personally known, who,
being by me duly sworn, did depose and say that he resides at
______________; that he is a ______________________ of Freeport-
McMoRan Copper & Gold Inc., one of the corporations described in
and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the board of Directors of said corporation, and that
he signed his name thereto by like authority.
[NOTARIAL SEAL]
______________________________
Notary Public
STATE OF NEW YORK
COUNTY OF NEW YORK
On this ____ day of ______________________, 2000, before me
personally came _______________, to me personally known, who, being
by me duly sworn, did depose and say that he resides at
_________________; that he is a _____________ of ________________,
one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
___________________________
Notary Public
Exhibit 4.7
CERTIFICATE OF DESIGNATIONS
OF
[CONVERTIBLE] [EXCHANGEABLE] PREFERRED STOCK, SERIES ___
(Par Value $0.10 Per Share)
OF
FREEPORT-MCMORAN COPPER & GOLD INC.
Pursuant to Section 151(g) of the
General Corporation Law of the State of Delaware
(If convertible or exchangeable, then insert such provisions
below as are consistent with the terms of the security designated
in the applicable Prospectus Supplement.)
We, the undersigned, being a Senior Vice President and the
Secretary, respectively, of Freeport-McMoRan Copper & Gold Inc.
(hereinafter called the "corporation"), a corporation organized and
existing under and by virtue of the provisions of the General
Corporation Law of the State of Delaware,
DO HEREBY CERTIFY:
FIRST. The Certificate of Incorporation of the corporation
authorizes the issuance of shares of Preferred Stock, par value
$0.10 per share, in series, with variations, as may be determined
by the Board of Directors of the corporation prior to the issue
thereof, as to the designation of each particular series and as to
certain of the rights, preferences and limitation of shares of each
such series.
SECOND. The Board of Directors of the corporation, acting by
Unanimous Written Consent dated ____________, and a Special
Committee thereof, pursuant to authority specifically granted to it
by such Board of Directors, at a meeting duly called and held on
_____________, duly adopted the following resolutions authorizing
the creation and issuance of a series of Preferred Stock to be
known as "$______ [Convertible] [Exchangeable] Preferred Stock."
RESOLVED, that the Board of Directors, pursuant to authority
vested in it by the provisions of the Restated Certificate of
Incorporation, as amended, of the corporation, hereby authorize the
issue of a series of Preferred Stock of the corporation and hereby
fixes the number, designation, preferences, rights and limitations
thereof in addition to those set forth in the Restated Certificate
of Incorporation as follows:
1. Designation. (a) ___________ shares of Preferred Stock
of the corporation are hereby constituted as a series of Preferred
Stock designated as "$____ [Convertible] [Exchangeable] Preferred
Stock" (hereinafter called "this Series"). Each share of this
Series shall be identical in all respect with the other shares of
this Series except as to the dates from and after which dividends
<PAGE> 1
thereon shall be cumulative. The Board of Directors is authorized
to increase or decrease (but not below the number of shares of this
Series then outstanding) the number of shares of this Series.
(b) Shares of this Series which have been redeemed [converted
into _________] [exchanged into its Debentures (as hereinafter
defined)] or purchased by the corporation shall be cancelled, and
shall revert to authorized but unissued Preferred Stock
undesignated as to series, and may be reissued as a part of this
Series or may be reclassified and reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of
the Board of Directors, all subject to the conditions or
restrictions on issuance set forth in any resolution or resolutions
adopted by the Board of Directors providing for the issue of such
series of Preferred Stock.
2. Dividends. (a) The holders of shares of this Series
shall be entitled to receive, but only out of funds legally
available therefor, cash dividends. Such dividends shall be paid
when, as and if declared by the Board of Directors on the first day
of ___________, __________, _________ and __________ in each year
commencing __________________ (each such date being referred to
herein as a "Dividend Payment Date") to holders of record on the
record date determined by the Board of Directors in advance of the
payment of each particular dividend. [Such dividends shall be
cumulative from the date of issue of the shares of this Series.]
(b) So long as any shares of this Series shall be
outstanding, the corporation shall not, unless full cumulative
dividends for all past dividend periods shall have been paid or
declared and set apart for payment upon all outstanding shares of
this series and the shares of any other class or series of
Preferred Stock, (i) declare, pay or set apart any amounts for
dividends on, or make any other distribution in cash or other
property in respect of, the Common Stock or any other stock of the
corporation, ranking junior to this Series as to dividends or
distribution of assets upon liquidation, dissolution or winding up
of the affairs of the corporation (the Common Stock and any such
other stock being herein referred to as "Junior Stock"), other than
a dividend payable solely in Junior Stock, (ii) purchase, redeem or
otherwise acquire for value any shares of Junior Stock, directly or
indirectly, other than as a result of reclassification of Junior
Stock, or the exchange or conversion of one Junior Stock for or
into another Junior Stock, or other than through the use of
proceeds of a substantially contemporaneous sale of other Junior
Stock, or (iii) make any payment on account of, or set aside money
for, a sinking or other like fund for the purchase, redemption or
other acquisition for value of any shares of Junior Stock.
(c) If the funds available for the payment of dividends are
insufficient to pay in full the dividends payable on all
outstanding shares of this Series and shares of any other series of
Preferred Stock, the total available funds to be paid in partial
dividends on the shares of such other series of Preferred Stock and
the shares of this Series shall be divided among this Series and
such other series of Preferred Stock in proportion to the aggregate
amounts of dividends accrued and unpaid with respect to this Series
and such other series of Preferred Stock. Accruals of dividends
shall not bear interest.
3. Dividend Rate. The Dividend Rate on the shares of this
Series for the period from the date of original issue thereof to
and including _______________, and for each Dividend Period
thereafter shall be $________ per annum. The term "Dividend
Period", as used herein, means, with
<PAGE> 2
respect to any Dividend
Payment Date, the period commencing on the day following the
immediately preceding Dividend Payment Date to and including such
Dividend Payment Date.
4. Redemption. (a) The shares of this Series shall not be
redeemable prior to _____________. Thereafter, the corporation, at
its option, may redeem the shares of this Series, in whole or in
part, at any time or from time to time, upon notice given as
hereinafter specified, at the following redemption prices per share
if redeemed during the twelve month period commencing on
_______________ of the year indicated:
Year Price
---- -----
and at $_____ per share thereafter, plus, in each case, an amount
equal to all accrued and unpaid dividends on the shares being
redeemed to and including the date fixed for such redemption.
Notwithstanding any provision of this Section 4 to the contrary,
any accrued and unpaid dividends in respect of shares of this
Series to be redeemed shall be payable to the holder of record of
such shares, as determined on the relevant record date.
(b) Notice of redemption shall be mailed by the corporation
by first class mail, postage prepaid, not less than 15 nor more
than 60 days before the date fixed for redemption, to each transfer
agent for the shares of this Series to be redeemed and to each
holder of record of such shares addressed to such holder at his
address shown on the registry books of the corporation. Such
notice of redemption shall set forth the date fixed for redemption,
the number of shares of this Series to be redeemed and, if less
than all of the shares held by such holder are to be redeemed, the
number of shares to be redeemed from such holder, the applicable
redemption price and the place or places (including a place in the
Borough of Manhattan, The City of New York) at which stockholders
may obtain payment of such redemption price plus accrued dividends
upon the surrender of the certificates representing their shares.
Failure to mail such notice, or any defect therein or in the
mailing thereof, to any particular holder shall not affect the
validity of the proceeding for the redemption of any shares so to
be redeemed from any other holder.
(c) If less than all the outstanding shares of this Series
are to be redeemed, the number of shares of this Series to be
redeemed and the method of effecting such redemption, whether by
lot or pro rata, shall be as determined by the Board of Directors.
(d) At any time after a notice of redemption has been given
in the manner prescribed herein and prior to the date fixed for
redemption, the corporation may deposit in trust, with a bank or
trust company identified in the notice of redemption having
capital, surplus and undistributed profits aggregating at least
$50,000,000, an aggregate amount of funds sufficient for such
redemption (including dividends accrued on the shares of this
Series called for redemption to the date fixed for redemption) for
immediate payment in the appropriate amounts upon surrender of
certificates for such shares. Any interest accrued on such funds
shall be paid to the corporation from
<PAGE> 3
time to time. Such deposit
in trust shall be irrevocable, except that any funds deposited by
the corporation which shall not be required for the redemption for
which they were deposited because of the exercise of rights of
conversion subsequent to the date of deposit shall be returned to
the corporation forthwith, and any funds deposited by the
corporation which are unclaimed at the end of two years from the
date fixed for such redemption shall be paid over to the
corporation upon its request, and upon such repayment the holders
of the shares so called for redemption shall look only to the
corporation for payment of the appropriate amount.
(e) From and after the date of the deposit of trust funds for
the redemption of shares of this Series in accordance with the
provisions of Section 4(d) hereof or, if no such deposit is made,
from and after the date fixed for redemption (unless the
corporation shall default in making payment of the amount payable
upon such redemption), whether or not certificates for shares so
called for redemption have been surrendered by the holders thereof
as described below, dividends on the shares of this Series so
called for redemption shall cease to accrue, and such shares shall
be deemed to be no longer outstanding, and all rights of the
holders thereof as stockholders of the corporation (except the
right to receive from the corporation the amount payable upon such
redemption and, up to the close of business on the date fixed for
such redemption, the right to convert such shares as set forth in
Section 7 hereof) shall cease and terminate. Upon surrender in
accordance with the notice of redemption of the certificates for
any shares of this Series so redeemed (properly endorsed or
assigned for transfer if the Board of Directors shall so require
and the notice shall so state), the holder thereof shall be
entitled to receive payment of the redemption price plus an amount
equal to all accrued and unpaid dividends as aforesaid. If less
than all of the shares represented by any such surrendered
certificate are redeemed, the corporation shall execute and deliver
to the holder thereof, or to his written order, a certificate or
certificates representing the unredeemed shares.
(f) In no event shall the corporation redeem less than all
the outstanding shares of this Series and shares of any other
series of Preferred Stock pursuant to this Section 4 unless full
cumulative dividends for all past dividend periods shall have been
paid or declared and set apart for payment upon all outstanding
shares of this Series and the shares of such other series of
Preferred Stock.
(g) In connection with any redemption of shares of this
Series, the corporation may enter into an agreement with one or
more investment bankers or other purchasers for the purchase of the
shares to be redeemed from the holders thereof and the conversion
of such purchased shares into shares of Common Stock as provided in
Section 7 hereof. Such agreement shall provide that the amount to
be paid by such purchasers to the holders of the shares of this
Series to be redeemed shall not be less than the redemption price
for such shares together with all accrued and unpaid dividends
thereon to and including the date fixed for redemption and may
provide further than such amount be deposited in trust, on or
before the close of business on the date fixed for redemption, with
a bank or trust company designated by the corporation meeting the
requirements set forth in Section 4(e) hereof. Notwithstanding
anything to the contrary contained in this Section, the obligation
of the corporation to pay the redemption price of the shares of
this Series to be redeemed, together with accrued and unpaid
dividends thereon to the date fixed for redemption, shall be deemed
to be satisfied and discharged to the extent such amount is so paid
by such purchasers. If such an agreement is entered into, any
shares of this Series to be redeemed that have not been duly
surrendered for conversion by the holders thereof may, at the
option of the corporation, be deemed,
<PAGE> 4
to the fullest extent
permitted by law, acquired by such purchasers from such holders and
(notwithstanding anything to the contrary contained in this Section
4(g) or in Section 7 hereof surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on
the date fixed for redemption, subject to payment of the above
amount as aforesaid.
5. Voting Rights. (a) Except for the voting rights
described below and except as otherwise provided by law, the
holders of shares of this Series shall not be entitled to vote on
any matter or to receive notice of, or to participate in, any
meeting of the stockholders of the corporation. Each share of
Preferred Stock of this Series will be entitled to one vote on
matters which holders of such series are entitled to vote.
(b) Whenever dividends payable on shares or this Series shall
be in default in an aggregate amount equal to or exceeding six full
quarterly dividends on all shares of this Series at the time
outstanding, the number of directors then constituting the Board of
Directors of the corporation shall be increased by two, and holders
of shares of this Series shall, in addition to any other voting
rights, have the right, voting separately as a class together with
holders of all other series of stock of the Company ranking on a
parity with such series os Preferred Stock either as to dividends
or the distribution of assets upon liquidation, dissolution or
winding up and upon which like voting rights have been conferred
and are exercisable (such other series of stock being herein
referred to as "Other Voting Stock"), to elect such two additional
directors. In such case, the Board of Directors will be increased
by two directors, and the holders of Preferred Stock of such series
(either alone or with the holders of Other Voting Stock) will have
the exclusive right as members of such class, as outlined above, to
elect two directors at the next annual meeting of stockholders.
Whenever such right of the holders of shares of this Series shall
have vested, such right may be exercised initially either at a
special meeting of such holders as provided in Section 5(c) hereof
or at any annual meeting of stockholders held for the purpose of
electing directors, and thereafter at such annual meetings. The
right of the holders of shares of this Series to vote together as
a class with holders of any Other Voting Stock shall continue until
such time as all dividends accrued on outstanding shares of this
Series to the Dividend Payment Date next preceding the date of any
such determination shall have been paid in full, or declared and
set apart in trust for payment, at which time the right of the
holders of shares of this Series so to vote shall terminate, except
as herein or by law expressly provided, subject to revesting upon
the occurrence of a subsequent default of the character mentioned
above.
(c) At any time when the right of the holders of shares of
this Series to elect directors as provided in Section 5(b) hereof
shall have vested, and if such right shall not already have been
initially exercised, a proper office of the corporation, upon the
written request of at least 10% of the aggregate number of shares
of this Series and shares of any Other Voting Stock at the time
outstanding, addressed to the Secretary of the corporation, shall
call a special meeting of the holders of shares of this Series and
of such Other Voting Stock for the purpose of electing directors.
Such meeting shall be held at the earliest practicable date upon
the same form of notice as is required for annual meetings of
stockholders at the place for the holding of annual meetings of
stockholders of the corporation (or such other suitable place as is
designated by such officer). If such meeting shall not be called
by a proper officer of the corporation within 20 days after
personal service of such written request upon the Secretary of the
corporation, or within 20 days after mailing the same within the
United States of America, addressed to the Secretary of the
corporation at its principal office (such mailing to be evidenced
by the registry receipt issued by the postal authorities), then the
<PAGE> 5
holders of record of at least 10% of the aggregate number of shares
of this Series and shares of any Other Voting Stock at the time
outstanding may designate in writing one or their number to call
such a meeting at the expense of the corporation, and such meeting
may be called by such person so designated upon the same form of
notice as is required for annual meetings of stockholders and shall
be held at the place for the holding of annual meetings of
stockholders of the corporation (or such other suitable place as is
designated by such person). Any holder or shares of this Series so
designated shall have access to the registry book of the
corporation for the purpose of causing a meeting of stockholders to
be called pursuant to this subsection (c). Notwithstanding
anything to the contrary contained in this subsection (c), no such
special meeting shall be called during the period within 90 days
immediately preceding the date fixed for the next annual meeting of
stockholders of the corporation.
(d) At any meeting held for the purpose of electing directors
at which holders of shares of this Series shall have the right,
voting together as a class with holders of shares of any Other
Voting Stock to elect directors as provided in Section 5(b) hereof,
the presence, in person or by proxy, of the holders of 33-1/3% of
the aggregate number of shares of this Series and shares of such
Other Voting Stock at the time outstanding shall be required and be
sufficient to constitute a quorum of such class for the election of
either director pursuant to such Section 5(b). At any such meeting
or adjournment thereof, (i) the absence of a quorum of the shares
of this Series and shares of such Other Voting Stock shall not
prevent the election of the directors to be elected otherwise than
pursuant to Section 5(b) hereof, and (ii) in the absence of a
quorum, either of the shares of this Series and shares of such
Other Voting Stock or of any other shares of stock of the
corporation, or both, a majority of the holders, present in person
or by proxy, of the class or classes of stock which lack a quorum
shall have the power to adjourn the meeting for the election of
directors whom they are entitled to elect, from time to time
without notice other than announcement at the meeting, until a
quorum shall be present.
(e) During any period when the holders of shares of this
Series shall have the right to vote together as a class with the
holders of shares of any Other Voting Stock for directors as
provided in Section 5(b) hereof, (i) the directors so elected by
such holders shall continue in office until their successors shall
have been elected by such holders or until termination of the
rights of such holders to vote as a class for directors and (ii)
any vacancies in the Board of Directors shall be filled only by a
majority (even if that be only a single director) of the remaining
directors theretofore elected by the holders of the class or
classes of stock which elected the director whose office shall have
become vacant. Immediately upon termination of the right of
holders of this Series and any Other Voting Stock to vote as a
class for directors, (i) the term of office of the directors so
elected shall terminate, and (ii) the number of directors shall be
such number as may be provided for in the by-laws of the
corporation irrespective of any increase pursuant to the provisions
of Section 5(b) hereof.
(f) In addition to any other vote required by law, the
corporation shall not (i) create, authorize or issue any series or
class of Preferred Stock ranking prior, either as to payment of
dividends or distributions of assets upon liquidation, dissolution
or winding up, to this Series, or (ii) change the preferences,
rights or limitations with respect to this Series, in each case, if
such action would materially adversely affect the interests of the
holders thereof, without the affirmative vote of the holders of a
majority of the aggregate number of shares of this Series at the
time outstanding,
<PAGE> 6
voting as a separate class; provided, that
nothing herein contained shall require such a class vote in
connection with any increase in the total number of authorized
shares of Common Stock or the creation, authorization or issuance
of any Junior Stock or any series of Preferred Stock ranking, as to
dividends or distribution of assets upon liquidation, dissolution
or winding up of the affairs of the corporation, on a parity with
the shares of this Series and provided, further, that no such vote
of the holders of shares of this Series shall be required if, at or
prior to the time when the actions described in clause (i) or (ii)
of this Section 5(f) shall become effective, provision is made in
accordance with Section 4 hereof for the redemption of all shares
of this Series at the time outstanding.
6. Preference upon Liquidation. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the corporation, after payment or provision for
payment of the debts and other liabilities of the corporation, the
holders of shares of this Series shall be entitled to receive, out
of the remaining net assets of the corporation, the amount of
$_______ in cash for each share of this Series, plus an amount
equal to all dividends (whether or not earned or declared) accrued
and unpaid on each such share up to the date fixed for
distribution, before any distribution shall be made to or set apart
for the holders of any Junior Stock. If, after payment or
provision for payment of the debts and other liabilities of the
corporation, the remaining net assets of the corporation are not
sufficient to pay to the holders of shares of this Series the full
amount of their preference set forth above, then the remaining net
assets of the corporation shall be divided among and paid to the
holders of shares of this Series and holders of shares of any stock
of the corporation on a parity as to dividends and distribution of
assets upon liquidation, dissolution or winding up of the affairs
of the corporation ratably per share in proportion to the full per
share amounts to which they respectively are entitled. For
purposes of this Section 6, a consolidation or merger of the
corporation with one or more other corporations or the sale of all
or substantially all of the assets of the corporation shall not be
deemed to be a voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the corporation.
Subject to the rights of the holders of shares of any series
or class of stock ranking prior to this Series and of the holders
of shares of any stock of the corporation on a parity as to
dividends and distribution of assets upon liquidation, dissolution
or winding up of the affairs of the corporation, after payment
shall have been made in full to the holders of this Series as
provided in this Section 6, the holders of any Junior Stock shall,
subject to the respective terms and provisions (if any) applying
thereto, be entitled to receive any and all assets remaining to be
paid or distributed, and shares of this Series shall not be
entitled to share therein.
7. Conversion Privilege. (If applicable, insert conversion
privilege into shares of Common Stock or other securities or rights
of the corporation)
8. [Exchange. (a) The shares of this Series are
exchangeable in whole, but not in part, at the option only of the
corporation on any Dividend Payment Date occurring on or after
____________ until and including ____________ for the corporation's
____% Convertible Subordinated Debentures Due described in the
corporation's Registration Statement on Form S-3 (Registration No.
____-_________ filed with the Securities and Exchange Commission on
_______________ (the "Debentures"); provided that on or prior to
the date of exchange the corporation shall have paid to or declared
and set aside for payment to the holders of outstanding shares of
this Series all accrued and unpaid dividends on shares of this
Series through the Exchange Date (as hereinafter defined). The
holders of shares of this Series will be entitled to receive $_____
principal amount of Debentures in exchange for each share of this
Series held by them at the time of exchange. The corporation will
mail to each holder of record of the shares of this Series written
notice of its intention to exchange not less than 30 nor more than
60 days prior to the date fixed for the exchange (the "Exchange
Date"). Each such notice shall state: (1) the Exchange Date, (ii)
the place or places where certificates for shares of this Series
are to be surrendered for exchange into Debentures and (iii) that
dividends on the shares of this Series to be exchanged will cease
to accrue on the Exchange
<PAGE> 7
Date. Prior to giving notice of
intention to exchange, the corporation shall execute and deliver
with the Trustee an in Indenture in substantially the form approved
by [the Section Committee of] the Board of Directors on
_______________ with such changes as may be required by law or
usage. The corporation will cause the Debentures to be
authenticated on the Dividend Payment Date on which the exchange is
effective, and will pay interest on the Debenture at the rate and
on the dates specified in such Indenture from the Exchange Date.]
[(b) The corporation will not give notice of its
intention to exchange under Section 8(a) hereof unless it shall
file at the place or places (including a place in the Borough of
Manhattan, The City of New York) maintained for such purpose an
opinion of counsel (who may be an employee of the corporation) to
the effect that (i) the Indenture has been duly authorized,
executed and delivered by the corporation, has been duly qualified
under the Trust Indenture Act of 1939 (or that such qualification
is not necessary) and constitutes a valid and binding instrument
enforceable against the corporation in accordance with its terms
(subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles,
and subject to such other qualifications as are then customarily
contained in opinions of counsel experienced in such matters), (ii)
the Debentures have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered in exchange for the shares of this Series, will
constitute colloid and binding obligations of the corporation
entitled to the benefits of the Indenture (subject as aforesaid),
(iii) neither the execution nor delivery of the Indenture or the
Debentures nor compliance with the terms, conditions or provisions
of such instruments will result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or agreement or instrument,
known to such counsel to which the corporation or any of its
Subsidiaries is a party or by which it or any of them is bound, or
any decree, judgment, order, rule or regulation, known to such
counsel, of any court or governmental agency or body having
jurisdiction over the corporation and such Subsidiaries or any of
their properties, and (iv) the Debentures have been duly registered
for such exchange with the Securities and Exchange Commission under
a registration statement that has become effective under the
Securities Act of 1933 (the "Act") or that the exchange of the
Debentures for the shares of this Series of Preferred is exempt
from registration under the Act.]
[(c) If notice has been mailed as aforesaid, from and
after the Exchange Date (unless the corporation shall default in
issuing Debentures in exchange for shares of this Series or in
making or providing for he payment accrued and unpaid dividends on
the outstanding shares of this Series to the Exchange Date)
dividends on the shares of this Series shall cease to accrued, and
such shares shall be deemed to be no longer outstanding, and all
rights of the holders thereof as stockholders of the corporation
shall cease and terminate. Upon surrender in accordance with said
notice of the certificates for shares of this Series so exchanged
(properly endorsed or assigned for
<PAGE> 8
transfer if the Board of
Directors shall so require and the notice shall so state), such
shares shall be exchanged by the corporation into Debentures as
aforesaid.]
9. Notice of Certain Events. In case:
(a) the corporation shall declare a dividend (or any
other distribution) payable to the holders of Common Stock
(otherwise than cash dividends paid out of the earned surplus of
the corporation and dividends payable in Common Stock); or
(b) the corporation shall authorize the granting to the
holders of Common Stock of rights to subscribe for or purchase any
shares of stock of any class or of any other rights or warrants; or
(c) the corporation shall authorize any reclassification
or change of the Common Stock (other than a subdivision or
combination of its outstanding shares of Common Stock or a change
in par value, or from par value to no par value, or from no par
value to par value), or any consolidation or merger to which the
corporation is a party and for which approval of any stockholders
of the corporation is required, or the sale or conveyance of all or
substantially all the property or business of the corporation; or
(d) there shall be proposed any voluntary or involuntary
dissolution, liquidation or winding-up of the corporation;
then, the corporation shall cause to be filed at the place or
places maintained for the purpose of conversion of shares of this
Series as provided in Section 7(b) hereof, and shall cause to be
mailed to each holder of shares of this Series, at his address as
it shall appear on the registry books of the corporation, as
promptly as possible but in any event at least 20 days before the
date hereinafter specified (or the earlier of the dates hereinafter
specified, in the event that more than one date is specified), a
notice stating the date on which (i) a record is expected to be
taken for the purpose of such dividend, distribution, rights, or
warrants, or if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such
dividend, distribution, rights, or warrants are to be determined,or
(ii) such reclassification, change, consolidation, merger, sale,
transfer, conveyance, dissolution, liquidation or winding-up is
expected to become effective and the date, if any is to be fixed,
as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such
reclassification, change, consolidation, merger, sale, transfer,
conveyance, dissolution, liquidation or winding-up.
10. Taxes. The corporation will pay any and all documentary,
stamp or similar taxes payable to the United States of America or
any political subdivision or taxing authority thereof or therein in
respect of the issue or delivery of (a) certificates for shares of
this Series on redemption of less than all of the shares
represented by any certificate for such shares surrendered for
redemption or (b) certificates for shares of Common Stock on
conversion of shares of this Series pursuant to Section 7 hereof;
provided, that the corporation shall not be required to pay any tax
which may be payable in respect of any transfer involved in the
issue or delivery of certificates for shares of this Series of
Common Stock, as the case may be, in a name other than that of the
holder of shares of this
<PAGE> 9
Series to be redeemed or converted and no
such issue or delivery shall be made unless an until the person
requesting such issue or delivery has paid to the corporation the
amount of any such tax or has established, to the satisfaction of
the corporation, that such tax has been paid. The corporation
extends no protection with respect to any other taxes imposed in
connection with such redemption or conversion of shares of this
Series.
11. No Other Rights. The shares of this Series shall not
have any relative, participating, option or other special rights
and powers other than as set forth herein.
IN WITNESS WHEREOF, said Freeport-McMoRan Copper & Gold Inc.
has caused its corporate seal to be hereunder affixed and this
Certificate of Designations to be signed by its Senior Vice
President and Secretary as of this ______________.
FREEPORT-MCMORAN COPPER & GOLD INC.
By:
------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
---------------------
NAME:
Title:
<PAGE> 10
Exhibit 4.10
FREEPORT-MCMORAN COPPER & GOLD INC.
and
_____________________________________
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of __________________,
TABLE OF CONTENTS
Page
----
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS
"Certificate of Designations" 1
"Certificate of Incorporation" 1
"Company" 1
"Corporate Office" 1
"Deposit Agreement" 2
"Depositary" 2
"Depositary Share" 2
"Depositary's Agent" 2
"New York office" 2
"Receipt" 2
"record holder" 2
"Registrar" 2
"Securities Act" 2
"Stock" 2
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts 3
SECTION 2.02 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof 3
SECTION 2.03 Redemption, Exchange and Conversion of
Stock 4
SECTION 2.04 Register of Transfer of Receipts 6
SECTION 2.05 Combination and Split-ups of Receipts 6
SECTION 2.06 Surrender of Receipts and Withdrawal of
Stock 7
SECTION 2.07 Limitations on Execution and Delivery
, Transfer,Split-up, Combination, Surrender and
Exchange of Receipts and Withdrawal or Deposit
of Stock 7
SECTION 2.08 Lost Receipts, etc 8
SECTION 2.09 Cancellation and Destruction of Surrendered
Receipts 8
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and Other
Information 9
SECTION 3.02 Payment of Taxes or Other Governmental
Charges 9
SECTION 3.03 Withholding 9
SECTION 3.04 Representations and Warranties as to Stock 9
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01 Cash Distributions 10
SECTION 4.02 Distributions Other Than Cash 10
SECTION 4.03 Subscription Rights, Preferences or
Privileges 10
SECTION 4.04 Notice of Dividends, Fixing of Record
Date for Holders of Receipts 11
SECTION 4.05 Voting Rights 11
SECTION 4.06 Changes Affecting Stock and
Reclassification, Recapitalization, etc 12
SECTION 4.07 Reports 12
SECTION 4.08 Lists of Receipt Holders 12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies,
Transfer Books by the Depositary; the Registrar 13
SECTION 5.02 Prevention or Delay in Performance by
the Depositary,the Depositary's Agents, the
Registrar or the Company 13
SECTION 5.03 Obligations of the Depositary, the
Depositary's Agents, the Registrar and the Company 14
SECTION 5.04 Resignation and Removal of the
Depositary, Appointment of Successor Depositary 15
SECTION 5.05 Corporate Notices and Reports 16
SECTION 5.06 Deposit of Stock by the Company 16
SECTION 5.07 Indemnification by the Company 16
SECTION 5.08 Fees, Charges and Expenses 16
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment 17
SECTION 6.02 Termination 17
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Counterparts 18
SECTION 7.02 Exclusive Benefits of Parties 18
SECTION 7.03 Invalidity of Provisions 18
SECTION 7.04 Notices 18
SECTION 7.05 Depositary's Agents 19
SECTION 7.06 Holders of Receipts Are Parties 19
SECTION 7.07 Governing Law 19
SECTION 7.08 Headings 19
TESTIMONIUM 20
SIGNATURES 20
EXHIBIT A 21
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of _________________ among
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation,
_____________________ , a _____________banking corporation, as
Depositary, and all holders from time to time of Receipts issued
hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter
set forth in this Deposit Agreement, for the deposit of shares of
the Stock with the Depositary, as agent for the beneficial owners
of the Stock, for the purposes set forth in this Deposit Agreement
and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing an interest in the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form
annexed as Exhibit A to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided in
this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises
contained herein, it is agreed by and among the parties hereto as
follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective
terms (in the singular and plural forms of such terms) used in this
Deposit Agreement and the Receipts:
"Certificate of Designations" shall mean the Certificate
of Designations establishing and setting forth the rights,
preferences, privileges and limitations of the Stock.
"Certificate of Incorporation" shall mean the Certificate
of Incorporation, as amended and restated from time to time, of the
Company.
"Company" shall mean Freeport McMoRan Copper & Gold Inc.,
a Delaware corporation, and its successors.
"Corporate Office" shall mean the office of the
Depositary in ________________. _______________ at which at any
particular time its business in respect of matters governed by this
<PAGE> 1
Deposit Agreement shall be administered, which at the date of this
Deposit Agreement is located at ______________________.
"Deposit Agreement" shall mean this agreement, as the
same may be amended, modified or supplemented from time to time.
"Depositary" shall mean _________________, as Depositary
hereunder, and any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by the
Receipts executed and delivered hereunder, including the interests
in Stock granted to holders of Receipts pursuant to the terms and
conditions of the Deposit Agreement. Each Depositary Share shall
represent an interest in of a share of Stock deposited with the
Depositary hereunder and the same proportionate interest in any and
all other property received by the Depositary in respect of such
share of Stock and held under this Deposit Agreement. Subject to
the terms of this Deposit Agreement, each record holder of a
Receipt evidencing a Depositary Share or Shares is entitled,
proportionately, to all the rights, preferences and privileges of
the Stock represented by such Depositary Share or Shares, including
the dividend, conversion, exchange, voting and liquidation rights
contained in the Certificate of Designations, and to the benefits
of all obligations and duties of the Company in respect of the
Stock under the Certificate of Designations and the Certificate of
Incorporation.
"Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in Section
7.05.
"New York Office" shall mean the office maintained by the
Depositary in the Borough of Manhattan, The City of New York, which
at the date of this Deposit Agreement is located at
___________________________.
"Receipt" shall mean a Depositary Receipt executed and
delivered hereunder, in substantially the form of Exhibit A hereto,
evidencing Depositary Share or Shares, as the same may be amended
from time to time in accordance with the provisions hereof.
"record holder" or "holder" as applied to a Receipt shall
mean the person in whose name a Receipt is registered on the books
maintained by or on behalf of the Depositary for such purpose.
"Registrar" shall mean any bank or trust company
appointed to register ownership and transfers of Receipts as herein
provided.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Stock" shall mean shares of the Company's [ ].
<PAGE> 2
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Receipts
shall be engraved or printed or lithographed on steel-engraved
borders and shall be substantially in the form set forth in Exhibit
A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Receipts
shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided, however, that
such signature may be a facsimile if a Registrar (other than the
Depositary) shall have countersigned the Receipts by manual
signature of a duly authorized officer of the Registrar. No
Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless it shall
have been executed as provided in the preceding sentence. The
Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided. Receipts
bearing the facsimile signature of anyone who was at any time a
duly authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has ceased to hold
such office prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of
whole Depositary Shares. All Receipts shall be dated the date of
their execution.
Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent
with the provisions of this Deposit Agreement as may be required by
the Depositary or required to comply with any applicable law or
regulation or with the rules and regulations of any securities
exchange upon which the Stock or the Depositary Shares may be
listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any
particular Receipts are subject by reason of the date of issuance
of the Stock or otherwise.
Title to any Receipt (and to the Depositary Shares
evidenced by such Receipt) that is properly endorsed or accompanied
by a properly executed instrument of transfer shall be transferable
by delivery with the same effect as in the case of investment
securities in general; provided, however, that the Depositary may,
notwithstanding any notice to the contrary, treat the record holder
thereof at such time as the absolute owner thereof for the purpose
of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions
of this Deposit Agreement, the Company or any holder of Stock may
deposit such Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Stock to be
deposited, properly endorsed or accompanied, if required by the
Depositary, by a properly executed instrument of transfer in form
satisfactory to the Depositary,
<PAGE> 3
together with (i) all such
certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement and (ii) a written
order of the Company or such holder, as the case may be, directing
the Depositary to execute and deliver to or upon the written order
of the person or persons stated in such order a Receipt or Receipts
for the number of Depositary Shares representing such deposited
Stock.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with the
other documents specified above, the Depositary shall, as soon as
transfer and registration can be accomplished, present such
certificate or certificates to the registrar and transfer agent of
the Stock for transfer and registration in the name of the
Depositary or its nominee of the Stock being deposited. Deposited
Stock shall be held by the Depositary in an account to be
established by the Depositary at the corporate office.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with the
other documents specified above, the Depositary, subject to the
terms and conditions of this Deposit Agreement, shall execute and
deliver, to or upon the order of the person or persons named in the
written order delivered to the Depositary referred to in the first
paragraph of this Section 2.02, a Receipt or Receipts for the
number of whole Depositary Shares representing the Stock so
deposited and registered in such name or names as may be requested
by such person or persons. The Depositary shall execute and
deliver such Receipt or Receipts at the New York Office, except
that, at the request, risk and expense of any person requesting
such delivery and for the account of such person, such delivery may
be made at such other place as may be designated by such person.
In each case, delivery will be made only upon payment by such
person to the Depositary of all taxes and other governmental
charges and any fees payable in connection with such deposit and
the transfer of the deposited Stock.
The Company shall deliver to the Depositary from time to
time such quantities of Receipts as the Depositary may request to
enable the Depositary to perform its obligations under this Deposit
Agreement.
SECTION 2.03. Redemption, Exchange and Conversion of
Stock. Whenever the Company shall elect to redeem or exchange or
be required to convert shares of Stock in accordance with the
Certificate of Designations, it shall (unless otherwise agreed in
writing with the Depositary) give the Depositary in its capacity as
Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice of redemption, exchange or
conversion of Stock and the simultaneous redemption, exchange or
conversion of the Depositary Shares representing the Stock to be
redeemed, exchanged or converted and of the number of such shares
of Stock held by the Depositary to be redeemed, exchanged or
converted. The Depositary shall, as directed by the Company in
writing, mail, first class postage prepaid, notice of the
redemption, exchange or conversion of Stock and the proposed
simultaneous redemption, exchange or conversion of the Depositary
Shares representing the Stock to be redeemed, exchanged or
converted, not less than 15 and not more than 60 days prior to the
date fixed for redemption, exchange or conversion of such Stock and
Depositary Shares, to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed, exchanged or
<PAGE> 4
converted, at
the addresses of such holders as the same appear on the records of
the Depositary; provided, that if the effectiveness of a Merger or
consolidation (as defined in the Certificate of Designations) makes
it impracticable to provide at least 15 days' notice, the
Depositary shall provide such notice as soon as practicable prior
to such effectiveness. Any such notice shall also be published in
the same manner as notices of redemption, exchange or conversion of
Stock are required to be published pursuant to Section _____ of the
Certificate of Designations. Notwithstanding the foregoing,
neither failure to mail or publish any such notice to one or more
such holders nor any defect in any notice shall affect the
sufficiency of the proceedings for redemption, exchange or
conversion. The Company shall provide the Depositary with such
notice, and each such notice shall state: the redemption, exchange
or conversion date; the number of Depositary Shares to be redeemed,
exchanged or converted; if fewer than all the Depositary Shares
held by any holder are to be redeemed or exchanged, the number of
such Depositary Shares held by such holder to be so redeemed or
exchanged; in the case of a call for redemption, the call price
payable upon redemption (and the form of consideration, whether
cash, securities or other consideration, on which the redemption
call Price will be paid), the place or places where Receipts
evidencing Depositary Shares to be redeemed, exchanged or converted
are to be surrendered for redemption, exchange or conversion;
whether the Company is depositing with a bank or trust company on
or before the redemption, exchange or conversion date, the cash
payable by the Company and the proposed date of such deposit; the
amount of accrued and unpaid dividends payable per share of Stock
to be redeemed, exchanged or converted to and including such
redemption, exchange or conversion date, as the case may be, and
that dividends in respect of the Stock represented by the
Depositary Shares to be redeemed, exchange or converted will cease
to accrue on such redemption, exchange or conversion date (unless
the Company shall default in delivering cash at the time and place
specified in such notice). On the date of any such redemption,
exchange or conversion, the Depositary shall surrender the
certificate or certificates held by the Depositary evidencing the
number of shares of Stock to be redeemed, exchanged or converted in
the manner specified in the notice of redemption, exchange or
conversion of Stock provided by the Company pursuant to Section
____ of the Certificate of Designations. The Depositary shall,
thereafter, redeem, exchange or convert the number of Depositary
Shares representing such redeemed, exchanged or converted Stock
upon the surrender of Receipts evidencing such Depositary Shares in
the manner provided in the notice sent to record holders of
Receipts. In case fewer than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed shall be
selected by the Depositary by lot or on a pro rata basis at the
direction of the Company.
Notice having been mailed and published by the Depositary
as aforesaid, from and after the redemption, exchange or conversion
date (unless the Company shall have failed to redeem, exchange or
convert the shares of Stock to be redeemed, exchanged or converted
by it upon the surrender of the certificate or certificates
therefor by the Depositary as described in the preceding
paragraph), the Depositary Shares called for redemption or exchange
or subject to conversion shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing
such Depositary Shares (except the right to receive the cash,
securities or Form of consideration payable upon redemption,
exchange or conversion upon surrender of such Receipts) shall, to
the extent of such Depositary Shares, cease and terminate. Upon
surrender in accordance with said notice of the Receipts evidencing
such Depositary Shares (properly endorsed or assigned for transfer,
if the Depositary shall
<PAGE> 5
so require), such Depositary Shares shall
be converted into or redeemed or exchanged for shares of Stock at
a rate equal to ______ of the number of shares of Stock delivered,
and the holders thereof shall be entitled to ____________of the
cash payable, in respect of the shares of Stock pursuant to the
Certificate of Designation. The foregoing shall be subject further
to the terms and conditions of the Certificate of Designations.
If fewer than all of the Depositary Shares evidenced by
a Receipt are called for redemption, the Depositary will deliver to
the holder of such Receipt upon its surrender to the Depositary,
together with the Redemption Price (whether to be paid in the form
of cash, shares of Stock or other form or forms of consideration)
and all accrued and unpaid dividends to and including the date
fixed for redemption payable in respect of the Depositary shares
called for redemption, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for
redemption.
To the extent that Depositary Shares are converted into
shares of Stock and all of such shares of Stock cannot be
distributed to the record holders of Receipts converted or called
for redemption without creating fractional interests in such
shares, the Company may distribute, or cause to be distributed,
cash to such holders in lieu of delivery of such fractional shares
or, if the Company elects not to make or cause to be made such a
distribution, the Depositary may, with the consent of the Company,
adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at
public or private sale) of such shares of Stock at such place or
places and upon such terms as it may deem proper, and the net
proceeds of any such sale shall, subject to Section 3.02, be
distributed or made available for distribution to such record
holders that would otherwise receive fractional interests in such
shares of Stock.
The Depositary shall not be required (a) to issue,
transfer or exchange any Receipts for a period beginning at the
opening of business 15 days next preceding any selection of
Depositary Shares and Stock to be redeemed and ending at the close
of business on the day of the mailing of notice of redemption of
Depositary Shares or (b) to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being
called for redemption, in whole or in part, or subject to
conversion except as provided in the second preceding paragraph of
this Section 2.03.
SECTION 2.04. Register of Transfer of Receipts. Subject
to the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books from time to time transfers
of Receipts upon any surrender thereof at the Corporate Office, the
New York Office or such other office as the Depositary may
designate for such purpose, by the record holder in person or by a
duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer, together with evidence of
the payment of any transfer taxes as may be required by law. Upon
such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. Combination and Split-ups of Receipts.
Upon surrender of a Receipt or Receipts at the Corporate Office,
the New York Office or such other office as the Depositary may
<PAGE> 6
designate for the purpose of effecting a split-up or combination of
Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
SECTION 2.06. Surrender of Receipts and Withdrawal of
Stock. Any holder of a Receipt or Receipts may withdraw any or all
of the Stock (but only in whole shares of Stock) represented by the
Depositary Shares evidenced by such Receipts and all money and
other property, if any, represented by such Depositary Shares by
surrendering such Receipt or Receipts at the Corporate Office, the
New York Office or at such other office as the Depositary may
designate for such withdrawals. After such surrender, without
unreasonable delay, the Depositary shall deliver to such holder, or
to the person or persons designated by such holder as hereinafter
provided, the whole number of shares of Stock and all such money
and other property, if any, represented by the Depositary Shares
evidenced by the Receipt or Receipts so surrendered for withdrawal.
If the Receipt or Receipts delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a
number of Depositary Shares in excess of the number of whole
Depositary Shares representing the whole number of shares of Stock
to be withdrawn, the Depositary shall at the same time, in addition
to such whole number of shares of Stock and such money and other
property, if any, to be withdrawn, deliver to such holder, or
(subject to Section 2.04) upon his order, a new Receipt or Receipts
evidencing such excess number of whole Depositary Shares. Delivery
of the Stock and such money and other property being withdrawn may
be made by the delivery of such certificates, documents of title
and other instruments as the Depositary may deem appropriate,
which, if required by the Depositary, shall be properly endorsed or
accompanied by proper instruments of transfer.
If the Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the
record holder of the Receipt or Receipts being surrendered for
withdrawal of Stock, such holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the
Depositary may require that the Receipt or Receipts surrendered by
such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
The Depositary shall deliver the Stock and the money and
other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal, without
unreasonable delay, at the office at which such Receipts were
surrendered, except that, at the request, risk and expense of the
holder surrendering such Receipt or Receipts and for the account of
the holder thereof such delivery may be made, without unreasonable
delay, at such other place as may be designated by such holder.
SECTION 2.07. Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender and Exchange of Receipts
and Withdrawal or Deposit of Stock. As a condition precedent to
the execution and delivery, registration of transfer, split-up,
combination, surrender or exchange of any Receipt, the delivery of
any distribution thereon or the withdrawal or deposit of Stock, the
<PAGE> 7
Depositary, any of the Depositary's Agents or the Company may
require any or all of the following: (i) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or
the Company shall have made such payment, the reimbursement to it)
of any tax or other governmental charge with respect thereto
(including any such tax or charge with respect to the Stock being
deposited or withdrawn or with respect to the Stock or other
securities or property of the Company being issued upon conversion
or redemption); (ii) production of proof satisfactory to it as to
the identity and genuineness of any signature; and (iii) compliance
with such reasonable regulations, if any, as the Depositary or the
Company may establish not inconsistent with the provisions of this
Deposit Agreement.
The deposit of Stock may be refused, the delivery of
Receipts against Stock or the registration of transfer, split-up,
combination, surrender or exchange of outstanding Receipts and the
withdrawal of deposited Stock may be suspended (i) during any
period when the register of stockholders of the Company is closed,
(ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any
time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any
provision of this Deposit Agreement, or (iii) with the approval of
the Company, for any other reason. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit
under this Deposit Agreement any shares of Stock that are required
to be registered under the Securities Act unless a registration
statement under the Securities Act is in effect as to such shares
of Stock.
SECTION 2.08. Lost Receipts, etc. In case any Receipt
shall be mutilated or destroyed or lost or stolen, the Depositary
shall execute and deliver a Receipt of like form and tenor in
exchange and substitution for such mutilated Receipt or in lieu of
and in substitution for such destroyed, lost or stolen Receipt
unless the Depositary has notice that such Receipt has been
acquired by a bona fide purchaser; provided, however, that the
holder thereof provides the Depositary with (i) evidence
satisfactory to the Depositary of such destruction, loss or theft
of such Receipt, of the authenticity thereof and of his ownership
thereof, (ii) reasonable indemnification satisfactory to the
Depositary or the payment of any charges incurred by the Depositary
in obtaining insurance in lieu of such indemnification and (iii)
payment of any expense (including fees, charges and expenses of the
Depositary) in connection with such execution and delivery.
SECTION 2.09. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any
Depositary's Agent shall be cancelled by the Depositary. Except as
prohibited by applicable law or regulation, the Depositary is
authorized to destroy such Receipts so cancelled.
<PAGE> 8
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any person presenting Stock for deposit or any holder
of a Receipt may be required from time to time to file such proof
of residence or other information, to execute such certificates and
to make such representations and warranties as the Depositary or
the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any
Receipt, the registration of transfer, redemption, conversion or
exchange of any Receipt, the withdrawal of the Stock represented by
the Depositary Shares evidenced by any Receipt or the distribution
of any dividend or other distribution until such proof or other
information is filed, such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental
Charges. If any tax or other governmental charge shall become
payable by or on behalf of the Depositary with respect to (i) any
Receipt, (ii) the Depositary Shares evidenced by such Receipt,
(iii) the Stock (or fractional interest therein) or other property
represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, such tax (including transfer, issuance
or acquisition taxes, if any) or governmental charge shall be
payable by the holder of such Receipt, who shall pay the amount
thereof to the Depositary. Until such payment is made,
registration of transfer of any Receipt or any split-up or
combination thereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused, any dividend or other
distribution may be withheld and any part or all of the Stock or
other property represented by the Depositary Shares evidenced by
such Receipt may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder prior
to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of such
tax or other governmental charge, the holder of such Receipt
remaining liable for any deficiency.
SECTION 3.03. Withholding. The Depositary shall act as
the tax withholding agent for any payments, distributions and
exchanges made with respect to the Depositary Shares and Receipts,
and the Stock represented thereby (collectively, the "Securities").
The Depositary shall be responsible with respect to the Securities
for the timely (i) collection and deposit of any required
withholding or backup withholding tax, and (ii) filing of any
information returns or other documents with federal (and other
applicable) taxing authorities.
SECTION 3.04. Representations and Warranties as to Stock.
In the case of the initial deposit of the Stock, the Company
and, in the case of subsequent deposits thereof, each person so
depositing Stock under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Stock and each
certificate therefor are valid and that the person making such
deposit is duly authorized to do so. Such representations and
warranties shall survive the deposit of the Stock and the issuance
of Receipts therefor.
<PAGE> 9
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to Section
3.02, distribute to record holders of Receipts on the record date
fixed pursuant to Section 4.04 such amounts of such sum as are, as
nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary shall
be required by law to withhold and does withhold from any cash
dividend or other cash distribution in respect of the Stock an
amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner of
Depositary Shares a fraction of one cent and any balance not so
distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part
of the next sum received by the Depositary for distribution to
record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash, rights,
preferences or privileges upon the Stock, the Depositary shall,
subject to Section 3.02, distribute to record holders of Receipts
on the record date fixed pursuant to Section 4.04 such amounts of
the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders, in any
manner that the Depositary and the Company may deem equitable and
practicable for accomplishing such distribution. If, in the
opinion of the Company after consultation with the Depositary, such
distribution cannot be made proportionately among such record
holders, or if for any other reason (including any tax withholding
or securities law requirement), the Depositary deems, after
consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company
which approval shall not be unreasonably withheld, adopt such
method as it deems equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sale shall, subject to
Section 3.02, be distributed or made available for distribution, as
the case may be, by the Depositary to record holders of Receipts as
provided by Section 4.01 in the case of a distribution received in
cash.
SECTION 4.03. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause to be
offered to the persons in whose names Stock is registered on the
books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in
such manner as the company shall instruct (including by the issue
to such record holders of warrants representing such rights,
preferences or privileges); provided, however, that (a) if at the
time of issue or offer of
<PAGE> 10
any such rights, preferences or
privileges the Company determines and instructs the Depositary that
it is not lawful or feasible to make such rights, preferences or
privileges available to some or all holders of Receipts (by the
issue of warrants or otherwise) or (b) if and to the extent
instructed by holders of Receipts who do not desire to exercise
such rights, preferences or privileges, the Depositary shall then,
in each case, and if applicable laws or the terms of such rights,
preferences or privileges so permit, sell such rights, preferences
or privileges of such holders at public or private sale, at such
place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall be distributed by the
Depositary to the record holders of Receipts entitled thereto as
provided by Section 4.01 in the case of a distribution received in
cash.
If registration under the Securities Act of the
securities to which any rights, preferences or privileges relate is
required in order for holders of Receipts to be offered or sold
such securities, the Company shall promptly file a registration
statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best
efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance
of the expiration of such rights, preferences or privileges to
enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the
holders of Receipts any right, preference or privilege to subscribe
for or to purchase any securities unless and until such
registration statement shall have become effective or unless the
offering and sale of such securities to such holders are exempt
from registration under the provisions of the Securities Act.
If any other action under the law of any jurisdiction or
any governmental or administrative authorization, consent or permit
is required in order for such rights, preferences or privileges to
be made available to holders of Receipts, the Company agrees with
the Depositary that the Company will use its reasonable best
efforts to take such action or obtain such authorization, consent
or permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Fixing of Record Date
for Holders of Receipts. Whenever (i) any cash dividend or other
cash distribution shall become payable, or any distribution other
than cash shall be made, or any rights, preferences or privileges
shall at any time be offered, with respect to the Stock, or (ii)
the Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are
entitled to notice or of the mandatory conversion of, or any
election on the part of the Company to call for the redemption or
exchange of, any shares of Stock, the Depositary shall in each such
instance fix a record date (which shall be the same date as the
record date fixed by the Company with respect to the Stock) for the
determination of the holders of Receipts (x) who shall be entitled
to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y) who
shall be entitled to give instructions for the exercise of voting
rights at any such meeting or to receive notice of such meeting or
of such conversion, exchange or redemption.
SECTION 4.05. Voting Rights. Upon receipt of notice of
any meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
record
<PAGE> 11
holders of Receipts a notice, which shall be provided by the
Company and which shall contain (i) such information as is
contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified record
date fixed pursuant to Section 4.04 will be entitled, subject to
any applicable provision of law, the Certificate of Incorporation
or the Certificate of Designations, to instruct the Depositary as
to the exercise of the voting rights pertaining to the Stock
represented by their respective Depositary Shares and (iii) a brief
statement as to the manner in which such instructions may be given.
Upon the written request of a holder of a Receipt on such record
date, the Depositary shall endeavor insofar as practicable to vote
or cause to be voted the Stock represented by the Depositary Shares
evidenced by such Receipt in accordance with the instructions set
forth in such request. The Company hereby agrees to take all
reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific instructions from
the holder of a Receipt, the Depositary will abstain from voting to
the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and Reclassification,
Recapitalize, etc. Upon any split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the
Company or to which it is a party or sale of all or substantially
all of the Company's assets, the Depositary shall treat any shares
of stock or other securities or property (including cash) that
shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited property
under this Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the proportionate interests of holders
thereof in the new deposited property so received in exchange for
or upon conversion or in respect of such Stock. In any such
case the Depositary may, in its discretion, with the approval of
the Company, execute and deliver additional Receipts, or may call
for the surrender of all outstanding Receipts to be exchanged for
new Receipts specifically describing such new deposited property.
SECTION 4.07. Reports. The Company or, at the option of
the Company, the Depositary shall forward to the holders of
Receipts any reports and communications received from the Company
that are received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon
request from time to time by the Company, the Depositary shall
furnish to it a list, as of a recent date, of the names, addresses
and holdings of Depositary Shares of all persons in whose names
Receipts are registered on the books of the Depositary. At the
expense of the Company, the Company shall have the right to inspect
transfer and registration records of the Depositary, any
Depositary's Agent or the Registrar, take copies thereof and
require the Depositary, any Depositary's Agent or the Registrar to
supply copies of such portions of such records as the Company may
request.
<PAGE> 12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies,
Transfer Books by the Depositary; the Registrar. Upon execution of
this Deposit Agreement in accordance with its terms, the Depositary
shall maintain (i) at the New York Office facilities for the
execution and delivery, registration, registration of transfer,
surrender and exchange, split-up, combination, redemption, exchange
and conversion of Receipts and deposit and withdrawal of Stock and
(ii) at the Corporate Office and at the offices of the Depositary's
Agents, if any, facilities for the delivery, registration,
registration of transfer, surrender and exchange, split-up,
combination, conversion, exchange and redemption of Receipts and
deposit and withdrawal of Stock, all in accordance with the
provisions of this Deposit Agreement.
The Depositary, acting as transfer agent and Registrar,
shall keep books at the Corporate Office for the registration and
transfer of Receipts, which books at all reasonable times shall be
open for inspection by the record holders of Receipts; provided
that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an
owner of Depositary Shares. The Depositary shall consult with
the Company upon receipt of any request for inspection. The
Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of
its duties hereunder.
If the Receipts or the Depositary Shares evidenced
thereby or the Stock represented by such Depositary Shares shall be
listed on one or more stock exchanges, the Depositary shall, with
the approval of the Company, appoint a Registrar for registry of
such Receipts or Depositary Shares in accordance with the
requirements of such exchange or exchanges. Such Registrar (which
may be the Depositary if so permitted by the requirements of such
exchange or exchanges) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval
of the Company. In addition, if the Receipts, such Depositary
Shares or such Stock are listed on one or more stock exchanges, the
Depositary will, at the request of the Company, arrange such
facilities for the delivery, registration, registration of
transfer, surrender and exchange, split-up, combination, redemption
or conversion of such Receipts, such Depositary Shares or such
Stock as may be required by law or applicable stock exchange
regulations.
SECTION 5.02. Prevention of Delay in Performance by the
Depositary, The Depositary's Agents, the Registrar or the Company.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall incur any liability to any holder
of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America
or of any other governmental authority or, in the case of the
Depositary, the Registrar or any
<PAGE> 13
Depositary's Agent, by reason of
any provision, present or future, of the Certificate of
Incorporation or the Certificate of Designations or, in the case of
the Company, the Depositary, the Registrar or any Depositary's
Agent, by reason of any act of God or war or other circumstances
beyond the control of the relevant party, the Depositary, any
Depositary's Agent, the Registrar or the Company shall be prevented
or forbidden from doing or performing any act or thing that the
terms of this Deposit Agreement provide shall be done or performed;
nor shall the Depositary, any Depositary's Agent, the Registrar or
the Company incur any liability to any holder of a Receipt (i) by
reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of this Deposit
Agreement provide shall or may be done or performed, or (ii) by
reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in the case of the
Depositary, any Depositary's Agent or the Registrar, if any such
exercise or failure to exercise discretion is caused by its
negligence or bad faith.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. The Company assumes no
obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons, except to
perform in good faith such obligations as are specifically set
forth and undertaken by it to perform in this Deposit Agreement.
Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under
this Deposit Agreement or the Receipts to holders or other persons,
except to perform such obligations as are specifically set forth
and undertaken by it to perform in this Deposit Agreement without
negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding with
respect to Stock, Depositary Shares or Receipts that in its opinion
may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished
as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be liable for any action or any
failure to act by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Stock for
deposit, any holder of a Receipt or any other person believed by it
in good faith to be competent to give such advice or information.
The Depositary, any Depositary's Agent, the Registrar and the
company may each rely and shall each be protected in acting upon
any written notice, request, direction or other document believed
by it to be genuine and to have been signed or presented by the
proper party or parties.
The Depositary, the Registrar and any Depositary's Agent
may own and deal in any class of securities of the Company and its
affiliates and in Receipts or Depositary Shares. The Depositary
may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates.
It is intended that neither the Depositary nor any
Depositary's Agent nor the Registrar shall be deemed to be an
"issuer" of the Stock, the Depositary Shares or the Receipts or
other securities issued upon conversion, exchange or redemption of
the Stock under the federal securities laws or applicable state
securities laws, it being expressly understood and agreed that the
Depositary and any Depositary's Agent and the Registrar are acting
only in a ministerial capacity; provided, however, that
<PAGE> 14
the
Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit
Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees
or agents) nor any Depositary's Agent nor the Registrar makes any
representation or has any responsibility as to the validity of the
Registration Statement pursuant to which the Depositary Shares are
registered under the Securities Act, the Stock, the Depositary
Shares or any instruments referred to therein or herein, or as to
the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations
in this Deposit Agreement.
The Depositary assumes no responsibility for the
correctness of the description that appears in the Receipts, which
can be taken as a statement of the Company summarizing certain
provisions of this Deposit Agreement. Notwithstanding any other
provision herein or in the Receipts, the Depositary makes no
warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary
hereunder or of the Depositary Shares, as to the validity or
sufficiency of this Deposit Agreement, as to the value of the
Depositary Shares or as to any right, title or interest of the
record holders of Receipts in and to the Depositary Shares except
that the Depositary hereby represents and warrants as follows: (i)
the Depositary has been duly organized and is validly existing and
in good standing under the laws of the jurisdiction of its
incorporation, with full power, authority and legal right under
such law to execute, deliver and carry out the terms of this
Deposit Agreement; (ii) this Deposit Agreement has been duly
authorized, executed and delivered by the Depositary; and (iii)
this Deposit Agreement constitutes a valid and binding obligation
of the Depositary, enforceable against the Depositary in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of creditors, rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law). The Depositary shall not be accountable for the
use or application by the Company of the Depositary Shares or the
Receipts or the proceeds thereof.
SECTION 5.04. Resignation and Removal of the Depositary,
Appointment of Successor Depositary. The Depositary may at any
time resign as Depositary hereunder by written notice via
registered mail of its election to do so delivered to the Company,
such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company
by written notice of such removal delivered to the Depositary, such
removal to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the
delivery of the notice of resignation or removal, as the case may
be, appoint a successor depositary, which shall be a bank or trust
company, or an affiliate of a bank or trust company, having its
principal office in the United States of America and having a
combined
<PAGE> 15
capital and surplus of at least $50,000,000. If a
successor depositary shall not have been appointed in 60 days, the
resigning or removed Depositary may petition a court of competent
jurisdiction to appoint a successor depositary. Every successor
depositary shall execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment
hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all
purposes shall be the Depositary under this Deposit Agreement, and
such predecessor, upon payment of all sums due it and on the
written request of the Company, shall promptly execute and deliver
an instrument transferring to such successor all rights and powers
of such predecessor hereunder, shall duly assign, transfer and
deliver all rights, title and interest in the Stock and any moneys
or property held hereunder to such successor and shall deliver to
such successor a list of the record holders of all outstanding
Receipts. Any successor depositary shall promptly mail notice of
its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or any
further act. Such successor depositary may execute the Receipts
either in the name of the predecessor depositary or in the name of
the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary, and the Depositary
will, promptly after receipt thereof, transmit to the record
holders of Receipts, in each case at the address recorded in the
Depositary's books, copies of all notices and reports (including
financial statements) required by law, by the rules of any national
securities exchange upon which the Stock, the Depositary Shares or
the Receipts are listed or by the Certificate of Incorporation and
the Certificate of Designations to be furnished by the Company to
holders of Stock. Such transmission will be at the Company's
expense and the Company will provide the Depositary with such
number of copies of such documents as the Depositary may reasonably
request. In addition, the Depositary will transmit to the record
holders of Receipts at the Company's expense such other documents
as may be requested by the Company.
SECTION 5.06. Deposit of Stock by the Company. The
Company agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any
Stock if such Stock is required to be registered under the
provisions of the Securities Act and no registration statement is
at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the Company. The
Company agrees to indemnify the Depositary, any Depositary's Agent
and any Registrar against, and hold each of them harmless from, any
liability, costs and expenses (including reasonable fees and
expenses of counsel) that may arise out of or in connection with
its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except
for any liability arising out of negligence, bad faith or willful
misconduct on the part of any such person or persons.
SECTION 5.08. Fees, Charges and Expenses. No fees,
charges and expenses of the Depositary or any Depositary's Agent
hereunder or of any Registrar shall be payable by any person other
than the
<PAGE> 16
Company, except for any taxes and other governmental
charges and except as provided in this Deposit Agreement. If, at
the request of a holder of a Receipt, the Depositary incurs fees,
charges or expenses for which it is not otherwise liable hereunder,
such holder or other person will be liable for such fees, charges
and expenses. All other fees, charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, reasonable fees and expenses of
counsel) incident to the performance of their respective
obligations hereunder will be paid from time to time upon
consultation and agreement between the Depositary and the Company
as to the amount and nature of such fees, charges and expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and
any provision of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the
Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment that shall
materially and adversely alter the rights of the holders of
Receipts shall be effective as to outstanding Receipts until the
expiration of 90 days after notice of such amendment shall have
been given to the record holders of outstanding Receipts and unless
such amendment shall have been approved by the holders of at least
a majority of the Depositary Shares outstanding. Every holder of
an outstanding Receipt at the time 90 days after such notice of
amendment shall have been given shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to be
bound by this Deposit Agreement as amended thereby. In no event
shall any amendment impair the right, subject to the provisions of
Sections 2.03, 2.06 and 2.07 and Article III, of any owner of any
Depositary Shares to surrender the Receipt evidencing such
Depositary Shares with instructions to the Depositary to deliver to
the holder the Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.02. Termination. Whenever so directed by the
Company, the Depositary will terminate this Deposit Agreement by
mailing notice of such termination to the record holders of all
Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise
terminate this Deposit Agreement if at any time 60 days shall have
expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor depositary
shall not have been appointed and accepted its appointment as
provided in Section 5.04.
If any Receipts shall remain outstanding after the date
of termination of this Deposit Agreement, the Depositary thereafter
shall discontinue the transfer of Receipts, shall suspend the
distribution of dividends to the holders thereof and shall not give
any further notices (other than notice of such termination) or
perform any further acts under this Deposit Agreement, except as
provided below and that the Depositary shall continue to collect
dividends and other distributions pertaining to Stock, shall sell
rights, preferences or privileges as provided in this Deposit
Agreement and shall continue to
<PAGE> 17
deliver the Stock and any money and
other property represented by Receipts, without liability for
interest thereon, upon surrender thereof by the holders thereof.
At any time after the expiration of two years from the date of
termination, the Depositary may sell Stock then held hereunder at
public or private sale, at such places and upon such terms as it
deems proper and may thereafter hold in a segregated account the
net proceeds of any such sale, together with any money and other
property held by it hereunder, without liability for interest, for
the benefit, pro rata in accordance with their holdings, of the
holders of Receipts that have not heretofore been surrendered.
After making such sale, the Depositary shall be discharged from all
obligations under this Deposit Agreement except to account for such
net proceeds and money and other property. Upon the termination of
this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations
to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.07 and 5.08. In the event this Deposit Agreement is
terminated, the Company hereby agrees to use its best efforts to
list the underlying Stock on the New York Stock Exchange, Inc.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may
be executed by the Company and the Depositary in separate
counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts
taken together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this
Deposit Agreement by telecopier shall be effective as delivery of
a manually executed counterpart of this Deposit Agreement. Copies
of this Deposit Agreement shall be filed with the Depositary and
the Depositary's Agents and shall be open to inspection during
business hours at the corporate office and the New York Office and
the respective offices of the Depositary's Agents, if any, by any
holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This
Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not be
deemed to give any legal or equitable right, remedy or claim to any
other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one
or more of the provisions contained in this Deposit Agreement or in
the Receipts should be or become invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be
affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any notices to be given to the
Company hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or
sent by mail, or by telegram or telex or telecopier confirmed by
letter, addressed to the Company at 1615 Poydras St., New Orleans,
Louisiana 70112, Attention: Secretary, or at any other place to
which the Company may have transferred its principal executive
office.
<PAGE> 18
Any notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by
telegram or telex or telecopier confirmed by letter, addressed to
the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by
mail, or by telegram or telex or telecopier confirmed by letter,
addressed to such record holder at the address of such record
holder as it appears on the books of the Depositary or, if such
holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address,
at the address designated in such request.
Delivery of a notice sent by mail, or by telegram or
telex or telecopier shall be deemed to be effected at the time when
a duly addressed letter containing the same (or a duly addressed
letter confirming an earlier notice in the case of a telegram or
telex or telecopier message) is deposited, postage prepaid, in a
post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex or telecopier message
received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may,
with the approval of the Company which approval shall not be
unreasonably withheld, from time to time appoint one or more
Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may vary or terminate
the appointment of such Depositary's Agents.
SECTION 7.06. Holders of Receipts Are Parties.
Notwithstanding that holders of Receipts have not executed and
delivered this Deposit Agreement or any counterpart thereof, the
holders of Receipts from time to time shall be deemed to be parties
to this Deposit Agreement and shall be bound by all of the terms
and conditions, and be entitled to all of the benefits, hereof and
of the Receipts by acceptance of delivery of Receipts.
SECTION 7.07. Governing Law. This Deposit Agreement and
the Receipts and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by, and construed in
accordance with, the law of the State of New York without giving
effect to principles of conflict of laws.
SECTION 7.08. Headings. The headings of articles and
sections in this Deposit Agreement and in the form of the Receipt
set forth in Exhibit A hereto have been inserted for convenience
only and are not to be regarded as a part of this Deposit Agreement
or to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.
<PAGE> 19
IN WITNESS WHEREOF, Freeport-McMoRan Copper & Gold Inc.
and _____________________________ have duly executed this Deposit
Agreement as of the day and year first above set forth and all
holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance
with the terms hereof.
FREEPORT-MCMORAN
COPPER & GOLD INC.
Attest:
--------------------
By:
---------------------
Authorized Officer
Attest:
____________
By:
-----------------------
Authorized Officer
<PAGE> 20
Exhibit A
[See Exhibit 4.11 to this Registration Statement.]
<PAGE> 21
Exhibit 4.11
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING_________________________[OF A] SHARE OF
PREFERRED STOCK
OF
FREEPORT-MCMORAN COPPER & GOLD INC.
(Incorporated under the Laws of the State of Delaware)
No.
___________________________(the "Depositary") hereby certifies
that__________________________ is the registered owner of
_______________________ Depositary Shares (the "Depositary
Shares"), each Depositary Share representing of a share of Preferred
Stock $0.10 par value (the "Stock"), of
Freeport-McMoRan Copper & Gold Inc., a corporation duly organized
and existing under the laws of the State of Delaware (the
"Company"), deposited with the Depositary and the same
proportionate interest in any and all other property received by
the Depositary in respect of such shares of Stock and held by the
Depositary under the Deposit Agreement (as defined below). Subject
to the terms of the Deposit Agreement, each owner of a Depositary
Share is entitled, proportionately, to all the rights, preferences
and privileges of the Stock represented thereby, including the
dividend, conversion, exchange, voting, liquidation and other
rights contained in the Certificate of Designations establishing
the rights, preferences, privileges and limitations of the Stock
(the "Certificate of Designations"), copies of which are on file at
the office of the Depositary at which at any particular time its
business in respect of matters governed by the Deposit Agreement
shall be administered, which at the time of the execution of the
Deposit Agreement is located at_______________________
(the "Corporate Office").
This Depositary Receipt ("Receipt") shall not be entitled
to any benefits under the Deposit Agreement or be valid or
obligatory for any purpose unless this Receipt shall have been
executed manually or, if a Registrar for the Receipts (other than
the Depositary) shall have been appointed, by facsimile by the
Depositary by the signature of a duly authorized officer and, if
executed by facsimile signature of the Depositary, shall have been
countersigned manually by such Registrar by the signature of a duly
authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY
DEPOSITED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE
CORRECTNESS OF THE DESCRIPTION SET FORTH IN THIS RECEIPT, WHICH CAN
BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING CERTAIN
PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET FORTH IN
THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF
ANY STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE
DEPOSIT AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY
OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE
DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE
RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY
SHARES.
The Company will furnish to any holder of this Receipt
without charge, upon request addressed to its executive office, a
full statement of the designation, relative rights, preferences and
limitations of the shares of each authorized class, and of each
class of preferred stock authorized to be issued, so far as the
same may have been fixed, and a statement of the authority of the
Board of Directors of the Company to designate and fix the relative
rights, preferences and limitations of other classes.
This Receipt is continued on the reverse hereof and the
additional provisions therein set forth for all purposes have the
same effect as if set forth at this place.
Dated:
____________________________
as Depositary and Registrar
By:
----------------------
Authorized Officer
Further Conditions and Agreements Forming Part of this Receipt
Appear on the Reverse Side.
[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
1. The Deposit Agreement. Depositary Receipts (the
"Receipts"), of which this Receipt is one, are made available upon
the terms and conditions set forth in the Deposit Agreement, dated
as of ____________________ (the "Deposit Agreement"), among the
Company, the Depositary and all holders from time to time of
Receipts. The Deposit Agreement (copies of which are on file at
the Corporate office, the office maintained by the Depositary in
the Borough of Manhattan, the City of New York which at the time of
the execution of the Deposit Agreement is located at
____________________________ (the "New York Office") and at the
office of any agent of the Depositary) sets forth the rights of
holders of Receipts and the rights and duties of the Depositary.
The statements made on the face and the reverse of this Receipt
are summaries of certain provisions of the Deposit Agreement and
are subject to the detailed provisions thereof, to which reference
is hereby made. In the event of any conflict between the
provisions of this Receipt and the provisions of the Deposit
Agreement, the provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein
provided, all defined terms used herein shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption, Exchange and Conversion of Stock.
Whenever the Company shall elect to redeem or exchange or be
required to convert shares of Stock in accordance with the
Certificate of Designations, it shall (unless otherwise agreed in
writing with the Depositary) give the Depositary in its capacity as
Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice or redemption, exchange or
conversion of Stock and the simultaneous redemption, exchange or
conversion of the Depositary shares representing the Stock to be
redeemed, exchanged or converted and of the number of such shares
of Stock held by the Depositary to be redeemed, exchanged or
converted. The Depositary shall, as directed by the company in
writing, mail, first class postage prepaid, notice of the
redemption, exchange or conversion of Stock and the proposed
simultaneous, redemption, exchange or conversion of Depositary
Shares representing the Stock to be redeemed, exchanged or
converted, not less than 15 and not more than 60 days prior to the
date fixed for redemption, exchange or conversion of such Stock and
Depositary Shares, to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed, exchanged or converted, at
the addresses of such holders as the same appear on the records of
such holders as the same appear on the records of the Depositary;
provided, that if the effectiveness of a Merger or Consolidation
(as defined in the Certificate of Designations) makes it
impracticable to provide at least 15 days notice, the Depositary
shall provide such notice as soon as practicable prior to such
effectiveness. Any such notice shall also be published in the same
manner as notices of redemption, exchange or conversion of the
Stock are required to be published pursuant to Section _____ of the
Certificate of Designations. On the date of any such redemption,
exchange or conversion, the Depositary shall surrender the
certificate or certificates held by the Depositary evidencing the
number of shares of Stock to be redeemed, exchanged or converted in
the manner specified in the notice of redemption, exchange or
conversion of Stock provided by the Company pursuant to Section
____ of the Certificate of Designations. The Depositary shall,
thereafter, redeem, exchange or convert the number of Depositary
shares representing such redeemed, exchanged or converted Stock
upon the surrender of Receipts evidencing such Depositary Shares in
the manner provided in the notice sent to record holders of
Receipts. In case fewer than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed shall be
selected by the Depositary by lot or on a pro rata basis at the
direction of the Company. Notice having been mailed and published
as aforesaid, from and after the redemption, exchange or conversion
date (unless the Company shall have failed to redeem, exchange, or
convert the shares of Stock to be redeemed, exchanged or converted
by it upon the surrender of the certificate or certificates
therefor by the Depositary as described above), the Depositary
Shares called for redemption or exchange or subject to conversion
shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares shall, to the
extent of such Depositary Shares, cease and terminate. Upon
surrender in accordance with said notice of the Receipts evidencing
such Depositary Shares (properly endorsed or assigned for transfer,
if the Depositary shall so require), such Depositary Shares shall
be converted or exchanged into shares of Stock at a rate equal to
________ of the number of shares of Stock delivered, and the
holders thereof shall be entitled to of the cash payable, in
respect of the shares of Stock pursuant to the Certificate of
Designations. The foregoing is subject further to the terms and
conditions of the Certificate of Designations. If fewer than all
of the Depositary Shares evidenced by this Receipt are called for
redemption, the Depositary will deliver to the holder of this
Receipt upon its surrender to the Depositary, together with the
redemption price (whether to be paid in the form of cash, shares of
Stock or other form or forms of consideration) and all accrued and
unpaid dividends to and including the date fixed for redemption
payable in respect of the Depositary Shares called for redemption,
a new Receipt evidencing the Depositary Shares evidenced by such
prior Receipt and not called for redemption.
4. Surrender of Receipts and Withdrawal of Stock. Upon
surrender of this Receipt to the Depositary at the Corporate
office, the New York Office or at such other offices as the
Depositary may designate, and subject to the provisions of the
Deposit Agreement, the holder hereof is entitled to withdraw, and
to obtain delivery, without unreasonable delay, to or upon the
order of such holder, any or all of the Stock (but only in whole
shares of Stock) and all money and other property, if any, at the
time represented by the Depositary Shares evidenced by this
Receipt; provided, however, that, in the event this Receipt shall
evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the whole number of shares of Stock
to be withdrawn, the Depositary shall, in addition to such whole
number of shares of Stock and such money and other property, if
any, to be withdrawn, deliver, to or upon the order of such holder,
a new Receipt or Receipts evidencing such excess number of whole
Depositary Shares.
5. Transfers, Split-ups, Combinations. Subject to
Paragraphs 6, 7 and 8 below, this Receipt is transferable on the
books of the Depositary upon surrender of this Receipt to the
Depositary at the Corporate Office or the New York Office, or at
such other offices as the Depositary may designate, properly
endorsed or accompanied by a properly executed instrument of
transfer, and upon such transfer the Depositary shall sign and
deliver a Receipt or Receipts to or upon the order of the person
entitled thereto, all as provided in and subject to the Deposit
Agreement. This Receipt may be split into other Receipts or
combined with other Receipts into one Receipt evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered; provided, however, that the Depositary shall
not issue any Receipt evidencing a fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc.,
of Receipts. Prior to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of this
Receipt, the delivery of any distribution hereon or the withdrawal
or deposit of Stock, the Depositary, any of the Depositary's Agents
or the Company may require any or all of the following: (i) payment
to it of a sum sufficient for the payment (or, in the event that
the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with
respect thereto (including any such tax or charge with respect to
Stock being deposited or withdrawn or with respect to Stock of the
Company being issued upon conversion, exchange or redemption); (ii)
production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iii) compliance with such
reasonable regulations, if any, as the Depositary or the Company
may establish not inconsistent with the Deposit Agreement. Any
person presenting Stock for deposit, or any holder of this Receipt,
may be required to file such proof of information, to execute such
certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper.
The Depositary or the Company may withhold or delay the delivery
of this Receipt, the registration of transfer, redemption,
conversion or exchange of this Receipt, the withdrawal of the Stock
represented by the Depositary Shares evidenced by this Receipt or
the distribution of any dividend or other distribution until such
proof or other information is filed, such certificates are executed
or such representations and warranties are made.
7. Suspension of Delivery, Transfer, etc. the deposit
of Stock may be refused and the delivery of this Receipt against
Stock or the registration of transfer, split-up, combination,
surrender or exchange of this Receipt and the withdrawal of
deposited Stock may be suspended (i) during any period when the
register of stockholders of the Company is closed, (ii) if any such
action is deemed necessary or advisable by the Depositary, any of
the Depositary's Agents or the Company at any time or from time to
time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the
Deposit Agreement, or (iii) with the approval of the Company, for
any other reason. The Depositary shall not be required to (a) to
issue, transfer or exchange any Receipts for a period beginning at
the opening of business 15 days next preceding any selection of
Depositary Shares and Stock to be redeemed and ending at the close
of business on the day of the mailing of notice of redemption of
Depositary Shares or (b) to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being
called for redemption, in whole or in part, subject to conversion
or exchange except as provided in the last sentence of Paragraph 3.
8. Payment of Taxes or Other Governmental Charges. If
any tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to (i) this Receipt, (ii) the
Depositary Shares evidenced by this Receipt, (iii) the Stock (or
fractional interest therein) or other property represented by such
Depositary Shares, or (iv) any transaction referred to in Section
4.06, of the Deposit Agreement, such tax (including transfer,
issuance or acquisition taxes, if any) or governmental charge shall
be payable by the holder of this Receipt, who shall pay the amount
thereof to the Depositary. Until such payment is made,
registration of transfer of this Receipt or any split-up or
combination hereof or any withdrawal of the Stock or money or other
property, if any, represented by the Depositary Shares evidenced by
this Receipt may be refused, any dividend or other distribution may
be withheld and any part or all of the Stock or other property
represented by the Depositary Shares evidenced by this Receipt may
be sold for the account of the holder hereof (after attempting by
reasonable means to notify such holder prior to such sale). Any
dividend or other distribution so withheld and the proceeds of any
such sale may be applied to any payment of such tax or other
governmental charge, the holder of this Receipt remaining liable
for any deficiency.
9. Amendment. The form of the Receipts and any
provision of the Deposit Agreement may at any time and from time to
time be amended by agreement between the Company and the Depositary
in any respect that they may deem necessary or desirable; provided,
however, that no such amendment that shall materially and adversely
alter the rights of the holders of Receipts shall be effective as
to outstanding Receipts until the expiration of 90 days after
notice of such amendment shall have been given to the record
holders of outstanding Receipts and unless such amendment shall
have been approved by the holders of at least a majority of the
Depositary Shares outstanding. Every holder of an outstanding
Receipt at the time 90 days after such notice of amendment shall
have been given shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by
the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of Paragraphs
3, 4 6, 7, and 8 hereof and of Sections 2.03, 2.06 and 2.07 and
Article III of the Deposit Agreement, of the owner of the
Depositary Shares evidenced by this Receipt to surrender this
Receipt with instructions to the Depositary to deliver to the
holder the Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory
provisions of applicable law.
10. Fees, Charges and Expenses. The Company will pay
all fees, charges and expenses of the Depositary, except for taxes
(including transfer taxes, if any) and other governmental charges
and such charges as are expressly provided in the Deposit Agreement
to be at the expense of persons depositing Stock, holders of
Receipts or other persons.
11. Title to Receipts. It is a condition of this
Receipt, and every successive holder hereof by accepting or holding
the same consents and agrees, that title to this Receipt (and to
the Depositary Shares evidenced hereby), when properly endorsed or
accompanied by a properly executed instrument of transfer, is
transferable by delivery with the same effect as in the case of
investment securities in general; provided, however, that the
Depositary may, notwithstanding any notice to the contrary, treat
the record holder hereof at such time as the absolute owner hereof
for the purpose of determining the person entitled to distribution
of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes.
12. Dividends and Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to the
provisions of the Deposit Agreement, distribute to record holders
of Receipts such amounts of such sums as are, as nearly as
practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be
required by law to withhold and does withhold from any cash
dividend or other cash distribution in respect of the Stock an
amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner of
Depositary Shares a fraction of one cent and any balance not so
distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part
of the next sum received by the Depositary for distribution to
record holders of Receipts then outstanding.
13. Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the
persons in whose name Stock is registered on the books of the
Company any rights, preferences or privileges to subscribe for or
to purchase any securities or any rights, preferences or privileges
of any other nature, such rights, preferences or privileges shall
in each such instance, subject to the provisions of the Deposit
Agreement, be made available by the Depositary to the record
holders of Receipts in such manner as the Company shall instruct.
14. Notice of Dividends, Fixing of Record Date.
Whenever (i) any cash dividend or other cash distribution shall
become payable, or any distribution other than cash shall be made,
or any rights, preferences or privileges shall at any time be
offered, with respect to the Stock, or (ii) the Depositary shall
receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to
notice, or of the mandatory conversion of, or any election on the
part of the Company to call for redemption or exchange of, any
shares of Stock, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed
by the Company with respect to the Stock) for the determination of
the holders of Receipts (x) who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) who shall be entitled to
give instructions for the exercise of voting rights at any such
meeting or of such meeting or to receive notice of such conversion,
exchange or redemption.
15. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice, which shall contain (i) such
information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business on
a specified record date determined as provided in Paragraph 14 will
be entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designations, to
instruct the Depositary as to the exercise of the voting rights
pertaining to the Stock represented by their respective Depositary
Shares, and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of
this Receipt on such record date the Depositary shall endeavor
insofar as practicable to vote or cause to be voted the Stock
represented by the Depositary Shares evidenced by this Receipt in
accordance with the instructions set forth in such request. The
Company hereby agrees to take all reasonable action that may be
deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of this
Receipt, the Depositary will abstain from voting to the extent of
the Stock represented by the Depositary Shares evidenced by this
Receipt.
16. Reports, Inspection of Transfer Books. The
Depositary shall make available for inspection by holders of
Receipts at the Corporate Office, the New York Office and at such
other places as it may from time to time deem advisable during
normal business hours any reports and communications received from
the Company that are received by the Depositary as the holder of
Stock. The Depositary, acting as transfer agent and Registrar,
shall keep books at the Corporate Office for the registration and
transfer of Receipts, which books at all reasonable times will be
open for inspection by the record holders of Receipts; provided
that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an
owner of Depositary Shares.
17. Liability of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor
any Depositary's Agent nor the Registrar nor the Company shall
incur any liability to any holder of this Receipt, if by reason of
any provision of any present or future law or regulation thereunder
of any governmental authority or, in the case of the Depositary,
the Registrar or any Depositary's Agent, by reason of any provision
present or future, of the Certificate of Incorporation or the
Certificate of Designations or, in the case of the Company, the
Depositary, the Registrar or any Depositary's Agent, by reason of
any act of God or war or other circumstances beyond the control of
the relevant party, the Depositary, any Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing
or performing any act or thing that the terms of the Deposit
Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, the Registrar or the company
incur any liability to any holder of this Receipt (i) by reason of
any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed or (ii) by
reason of any exercise of, or failure to exercise, any discretion
provided for in the Deposit Agreement except, in the case of the
Depositary, any Depositary's Agent or the Registrar, if such
exercise or failure to exercise discretion is caused by its
negligence or bad faith.
18. Obligations of the Depositary, the Depositary
Agent, the Registrar and the Company. The Company assumes no
obligation and shall be subject to no liability under the Deposit
Agreement or this Receipt to the holder hereof or other persons,
except to perform in good faith such obligations as are
specifically set forth and undertaken by it to perform in the
Deposit Agreement. Each of the Depositary, the Depositary's Agents
and the Registrar assumes no obligation and shall be subject to no
liability under the Deposit Agreement or this Receipt to the holder
hereof or other persons, except to perform such obligations as are
specifically set forth and undertaken by it to perform in the
Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding with
respect to Stock, Depositary Shares or Receipts that in its opinion
may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished
as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company will be liable for any action or failure
to act by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Stock for
deposit, any holder of this Receipt or any other person believed by
it in good faith to be competent to give such advice or
information.
19. Termination of Deposit Agreement. Whenever so
directed by the Company, the Depositary will terminate the Deposit
Agreement by mailing notice of such termination to the record
holders of all Receipts then outstanding at least 30 days prior to
the date fixed in such notice for such termination. The Depositary
may likewise terminate the Deposit Agreement if at any time 60 days
shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04 of the Deposit Agreement.
Upon the termination of the Deposit Agreement, the Company shall
be discharged from all obligations thereunder except for its
obligations to the Depositary, any Depositary's Agent and any
Registrar under Sections 5.07 and 5.08 of the Deposit Agreement.
If any Receipts remain outstanding after the date of
termination of the Deposit Agreement, the Depositary thereafter
shall discontinue all functions and be discharged from all
obligations as provided in the Deposit Agreement, except as
specifically provided therein.
20. Governing Law. The Deposit Agreement and this
Receipt and all rights thereunder and hereunder and provisions
thereof and hereof shall be governed by, and construed in
accordance with, the law of the State of New York without giving
effect to principles of conflict of laws.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________ the within Receipt and all rights
and interests represented by the Depositary shares evidenced
thereby, and hereby irrevocably constitutes and appoints
_______________________ his attorney, to transfer the same on the
books of the within-named Depositary, with full power of
substitution in the premises.
Dated: Signature:
_________________________
NOTE: The signature to this
assignment must correspond with
the name as written upon the
face of the Receipt in every
particular, without alteration
or enlargement, or any change
whatever.
Exhibit 5
JONES WALKER
WAECHTER POITEVENT
CARRERE & DENEGRE L.L.P.
March 3, 2000
Freeport-McMoRan Copper & Gold Inc.
1615 Poydras Street
New Orleans, Louisiana 70112
Re: Registration Statement on Form S-3
Freeport-McMoRan Copper & Gold Inc.
Gentlemen:
We have acted as counsel to Freeport-McMoRan
Copper & Gold Inc. ("FCX"), a Delaware corporation,
in connection with the preparation of a
registration statement on Form S-3 (the
"Registration Statement") filed by FCX with the
Securities and Exchange Commission (the
"Commission") relating to the registration of
$500,000,000 maximum aggregate initial offering
price of the following securities of FCX: (i)
Class A and Class B Common Stock (together, the
"Common Stock"); (ii) Debt Securities; (iii)
Preferred Stock; (iv) Warrants to purchase Debt
Securities, Preferred Stock and Common Stock; and
(v) Depositary Shares representing interests in
Preferred Stock deposited with a Depositary and
evidenced by Depositary Receipts. FCX also may
issue (i) shares of Common Stock upon the
conversion of Debt Securities or Preferred Stock;
(ii) Preferred Stock upon the conversion of Debt
Securities; and (iii) Debt Securities, Common Stock
or Preferred Stock upon the exercise of Warrants
registered pursuant to the Registration Statement.
The foregoing securities are collectively referred
to as the "Securities."
The Securities may be issued from time to time
in one or more series as determined by FCX's Board
of Directors and as set forth in a supplement to
the prospectus that forms part of the Registration
Statement. The particular terms of each series of
Securities offered by a particular prospectus
supplement will be described in the prospectus
supplement. The Debt Securities will constitute
either indebtedness designated as senior
indebtedness, senior subordinated indebtedness or
subordinated indebtedness. The Debt Securities
will each be issued under indentures (individually,
the "Indenture" and collectively, the "Indentures")
to be entered into prior to the issuance of such
Securities.
In rendering the opinions expressed below, we
have examined originals or copies, certified or
otherwise identified to our satisfaction, of such
documents, corporate records, certificates of
public officials and other instruments as we have
deemed necessary or advisable for purposes of this
opinion. In our examination, we have assumed the
genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such
documents.
Based upon the foregoing and subject to the following
qualifications and comments, we are of the opinion that:
1. FCX is a corporation duly organized, validly
existing and in good standing
under the laws of the State of Delaware and has all requisite
corporate power to issue the Securities.
2. The Common Stock will be legally issued, fully paid
and non-assessable when
(i) FCX's Board of Directors shall have taken all necessary
corporate action to approve the issuance of the Common Stock;
(ii) a prospectus supplement with respect to such Common Stock
shall have been filed (or transmitted for filing) with the
Commission pursuant to Rule 424(b) of the Securities Act of
1933 (the "Act"); and (iii) certificates representing the
Common Stock shall have been duly executed, countersigned and
registered and duly delivered to the purchasers thereof
against payment of the agreed consideration therefor in
accordance with the applicable underwriting, purchase or
similar agreement or upon conversion, exchange or exercise in
accordance with the terms of any other Security that has been
duly authorized, issued, paid for and delivered.
3. Each series of Debt Securities will be legally
issued and constitute the valid and binding obligation of FCX
when (i) the Indenture shall have been duly authorized,
executed and delivered by FCX and the Trustee; (ii) FCX's
Board of Directors shall have taken all necessary corporate
action to approve the issuance of such Debt Securities and to
establish the terms and conditions thereof; (iii) a prospectus
supplement with respect to such series of Debt Securities
shall have been filed (or transmitted for filing) with the
Commission pursuant to Rule 424(b) of the Act; and (iv) any
certificates representing such series of Debt Securities as
may be required by the Indenture shall have been duly
authenticated, executed and delivered in accordance with the
Indenture against payment therefor in accordance with the
applicable underwriting, purchase or similar agreement or upon
the exercise of any other Security that has been duly
authorized, issued, paid for and delivered.
4. Each series of Preferred Stock will be legally
issued, fully paid and non-assessable when (i) FCX's Board of
Directors shall have taken all necessary corporate action to
approve the issuance of such Preferred Stock and to establish
the terms and conditions
thereof; (ii) a certificate of designations shall have been
filed with the Delaware Secretary of State as required by the
Delaware General Corporation Law; (iii) a prospectus
supplement with respect to such series of Preferred Stock
shall have been filed (or transmitted for filing) with the
Commission pursuant to Rule 424(b) of the Act; and (iv)
certificates representing such series of Preferred Stock shall
have been duly executed, countersigned and registered and duly
delivered to the purchasers thereof against payment of the
agreed consideration therefor in accordance with the
applicable underwriting, purchase or similar agreement or upon
conversion, exchange or exercise in accordance with the terms
of any other Security that has been duly authorized, issued,
paid for and delivered.
5. Each series of Warrants will be legally issued and
constitute the valid and binding obligation of FCX when (i) a
Warrant Agreement relating to such Warrants shall have been
duly authorized, executed and delivered by FCX and the warrant
agent or agents thereunder; (ii) FCX's Board of Directors
shall have taken all necessary corporate action to approve the
issuance of such Warrants and to establish the terms and
conditions thereof; (iii) a prospectus supplement with respect
to such Warrants shall have been filed (or transmitted for
filing) with the Commission pursuant to Rule 424(b) of the
Act; (iv) any and all actions required under the Indenture to
validly issue the Debt Securities, and under the Delaware
General Corporation Law to validly issue the Common Stock or
Preferred Stock, upon exercise of the Warrants shall have been
taken; and (v) such Warrants shall have been duly executed and
authenticated or countersigned as provided in the Warrant
Agreement relating thereto and duly delivered to the
purchasers thereof against payment of the agreed consideration
therefor in accordance with the applicable underwriting,
purchase or similar agreement.
6. The Depositary Shares will be legally issued, fully
paid and non-assessable when (i) a Deposit Agreement relating
to the Depositary Shares shall have been duly authorized,
executed and delivered by FCX and the depositary thereunder;
(ii) FCX's Board of Directors shall have taken all necessary
corporate action to approve the issuance of the Depositary
Shares; (iii) a prospectus supplement with respect to such
Depositary Shares shall have been filed (or transmitted for
filing) with the Commission pursuant to Rule 424(b) of the
Act; and (iv) Depositary Receipts shall have been duly
delivered as may be required by the Deposit Agreement against
the deposit of duly authorized, validly issued, fully paid and
non-assessable shares of Preferred Stock and duly delivered to
the purchasers thereof against payment of the agreed
consideration therefor in accordance with the applicable
underwriting, purchase or similar agreement.
The opinions in paragraphs 3 and 5 hereof are subject to the
qualification that enforceability may be limited by (i) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws of general applicability relating to or
affecting the enforcement of creditors' rights; (ii) public policy
considerations that may limit the rights of parties to obtain
certain remedies; (iii) the fact that specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought; (iv) general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law); and (v) governmental authority to
limit, delay or prohibit the making of payments outside of the
United States or in a foreign currency or currency unit.
In connection with the opinions expressed above, we have
assumed that, at or prior to the time of the delivery of any
Security: (i) the Board of Directors of FCX shall have duly
authorized the issuance and sale of such Security and such
authorization shall not have been modified or rescinded; (ii) the
Registration Statement, as finally amended, shall have been
declared effective under the Act and such effectiveness shall not
have been terminated or rescinded; (iii) the applicable Indentures,
if any, shall have been duly authorized, executed and delivered by
FCX and the applicable trustee and shall have been qualified under
the Trust Indenture Act of 1939, as amended; and (iv) there will
not have occurred any change in law affecting the validity or
enforceability of such Security. We have also assumed that none of
the terms of any Security to be established subsequent to the date
hereof nor the issuance and delivery of such Security, nor the
compliance by FCX with the terms of such Security, will violate any
applicable law or result in a violation of any provision of any
instrument or agreement then binding upon FCX, or any restriction
imposed by any court or governmental body having jurisdiction over
FCX.
We are members of the Bar of the State of Louisiana and the
foregoing opinion is limited to the laws of the State of Louisiana,
the federal laws of the United States of America and the General
Corporation Law of the State of Delaware. We assume no obligation
to revise or supplement this opinion should such currently
applicable laws be changed by legislative action, judicial decision
or otherwise.
This opinion is furnished to you in connection with the filing
of the Registration Statement and is not to be used, circulated,
quoted or otherwise relied upon for any other purpose.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement of FCX relating to the Securities and to
the reference to our name in the Prospectus contained therein. In
giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of
the Securities Act of 1933 or the general rules and regulations of
the Commission.
Very truly yours,
/s/ Jones, Walker, Waechter, Poitevent,
Carrere & Denegre L.L.P.
JONES, WALKER, WAECHTER, POITEVENT,
CARRERE & DENEGRE L.L.P.
EXHIBIT 12
<TABLE>
FREEPORT-McMoRan COPPER & GOLD INC.
Computation of Ratio of Earnings to Fixed Charges:
<CAPTION>
Years Ended December 31,
-------------------------------------------------
1995 1996 1997 1998 1999
--------- --------- --------- --------- ---------
(In Thousands)
<S> <C> <C> <C> <C> <C>
Income from continuing
operations $ 253,618 $ 226,249 $ 245,108 $ 153,848 $ 136,467
Add:
Provision for income taxes 234,044 247,168 231,315 170,566 195,653
Minority interests' share
of net income 57,100 48,529 40,343 37,012 48,714
Interest expense 50,080 117,291 151,720 205,588 194,069
Rental expense factor(a) 1,002 457 240 323 188
--------- --------- --------- --------- ---------
Earnings available for
fixed charges $ 595,844 $ 639,694 $ 668,726 $ 567,337 $ 575,091
========= ========= ========= ========= =========
Interest expense $ 50,080 $ 117,291 $ 151,720 $ 205,588 $ 194,069
Capitalized interest 49,758 22,979 23,021 19,612 3,768
Rental expense factor(a) 1,002 457 240 323 188
--------- --------- --------- --------- ---------
Fixed charges $ 100,840 $ 140,727 $ 174,981 $ 225,523 $ 198,025
========= ========= ========= ========= =========
Ratio of earnings to
fixed charges(b) 5.9x 4.5x 3.8x 2.5x 2.9x
==== ==== ==== ==== ====
</TABLE>
<TABLE>
Computation of Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends:
<CAPTION>
Years Ended December 31,
-------------------------------------------------
1995 1996 1997 1998 1999
--------- --------- --------- --------- ---------
(In Thousands)
<S> <C> <C> <C> <C> <C>
Income from continuing
operations $ 253,618 $ 226,249 $ 245,108 $ 153,848 $ 136,467
Add:
Provision for income taxes 234,044 247,168 231,315 170,566 195,653
Minority interests' share
of net income 57,100 48,529 40,343 37,012 48,714
Interest expense 50,080 117,291 151,720 205,588 194,069
Rental expense factor(a) 1,002 457 240 323 188
--------- --------- --------- --------- ---------
Earnings available for
fixed charges $ 595,844 $ 639,694 $ 668,726 $ 567,337 $ 575,091
========= ========= ========= ========= =========
Interest expense $ 50,080 $ 117,291 $ 151,720 $ 205,588 $ 194,069
Capitalized interest 49,758 22,979 23,021 19,612 3,768
Rental expense factor(a) 1,002 457 240 323 188
Preferred dividends 101,125 101,083 65,896 65,847 68,697
--------- --------- --------- --------- ---------
Fixed charges $ 201,965 $ 241,810 $ 240,877 $ 291,370 $ 266,722
========= ========= ========= ========= =========
Ratio of earnings to
fixed charges(b) 3.0x 2.6x 2.8x 1.9x 2.2x
==== ==== ==== ==== ====
</TABLE>
a. Portion of rent deemed representative of an interest factor.
b. For purposes of this calculation, earnings consist of income from
continuing operations before income taxes, minority interests and
fixed charges. Fixed charges include interest and that portion of
rent deemed representative of interest.
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated January 19,
1999, included in Freeport-McMoRan Copper & Gold Inc.'s Form 10-K for
the year ended December 31, 1998 and to all references to our Firm included
in this registration statement.
/s/ Arthur Andersen LLP
New Orleans, Louisiana
March 3, 2000
Exhibit 23.3
INDEPENDENT
MINING CONSULTANTS, INC.
2700 E. Executive Drive, Suite 140
Tucson, Arizona 85706 USA
Tel: (520) 294-9861 Fax: (520) 294-9865
March 3, 2000
Pat Prejean
Manager of Financial Reporting
Freeport-McMoRan Copper & Gold, Inc.
1615 Poydras Street
New Orleans, LA 70112
Dear Mr. Prejean,
We consent to the use in this Registration Statement on Form S-3
of Freeport-McMoRan Copper & Gold Inc. of our reports incorporated by
reference therein and to all references to our firm in the Registration
Statement, including the reference to us under the heading "Experts" in
the Prospectus comprising a part of the Registratin Statement as being
experts in mining, geology and reserve determination.
INDEPENDENT MINING CONSULTANTS, INC.
Dated: March 3, 2000 By: /s/ John M. Marek
------------------------------
Name: John M. Marek
Title: President
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints Richard C. Adkerson and Stephen M.
Jones, or either of them, his true and lawful attorney-in-fact
and agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the
Registration Statement of Freeport-McMoRan Copper & Gold Inc.
with respect to $500,000,000 of securities, and any and all
amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ James R. Moffett
--------------------
James R. Moffett
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett and Richard C.
Adkerson, or either of them, his true and lawful attorney-in-fact
and agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the
Registration Statement of Freeport-McMoRan Copper & Gold Inc.
with respect to $500,000,000 of securities, and any and all
amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ Stephen M. Jones
--------------------
Stephen M. Jones
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ C. Donald Whitmire, Jr.
---------------------------
C. Donald Whitmire, Jr.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ Robert W. Bruce III
-----------------------
Robert W. Bruce III
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ R. Leigh Clifford
---------------------
R. Leigh Clifford
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ Robert A. Day
-----------------
Robert A. Day
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ Oscar Y. L. Groeneveld
--------------------------
Oscar Y. L. Groeneveld
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ Gerald J. Ford
------------------
Gerald J. Ford
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ H. Devon Graham, Jr.
------------------------
H. Devon Graham, Jr.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ J. Bennett Johnston
-----------------------
J. Bennett Johnston
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ Henry A. Kissinger
----------------------
Henry A. Kissinger
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ Bobby Lee Lackey
--------------------
Bobby Lee Lackey
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ Rene L. Latiolais
---------------------
Rene L. Latiolais
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, her true and lawful
attorney-in-fact and agent, with full power of substitution, for
her and in her name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ Gabrielle K. McDonald
--------------------------
Gabrielle K. McDonald
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ George A. Mealey
--------------------
George A. Mealey
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ B. M. Rankin, Jr.
---------------------
B. M. Rankin, Jr.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James R. Moffett, Richard C. Adkerson
and Stephen M. Jones, or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign the Registration Statement of Freeport-McMoRan Copper &
Gold Inc. with respect to $500,000,000 of securities, and any and
all amendments (including post-effective amendments) to the
Registration Statement, including any related registration
statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, which, in addition to registering the securities listed
therein, is to serve as post-effective amendments to the
registration statements numbers 33-63376, 33-52503, 333-02699,
33-45787 and 33-66098 previously filed by the registrant with the
Securities and Exchange Commission, and to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power
of Attorney as of the 14th day of February, 2000.
/s/ J. Taylor Wharton
---------------------
J. Taylor Wharton
