FREEPORT-McMoRAN COPPER & GOLD INC., Issuer
and
The Chase Manhattan Bank, Trustee
SENIOR
INDENTURE
Dated as of November _, 1996
TABLE OF CONTENTS
Page
PARTIES...................................................... 1
RECITALS..................................................... 1
ARTICLE ONE - DEFINITIONS
SECTION 1.1
Certain Terms Defined................................... 1
Authenticating Agent.................................... 1
Authorized Newspaper.................................... 2
Authorized Signatory.................................... 2
Board of Directors...................................... 2
Board Resolution........................................ 2
Business Day............................................ 2
Commission.............................................. 2
Company Order........................................... 2
Corporate Trust Office.................................. 2
Coupon.................................................. 2
Debt.................................................... 2
Default................................................. 2
Defeasance.............................................. 2
Depositary.............................................. 3
Dollar.................................................. 3
ECU..................................................... 3
Event of Default........................................ 3
Exchange Act............................................ 3
Foreign Currency........................................ 3
Guarantee............................................... 3
Holder, Holder of Securities, Securityholder............ 3
Indenture............................................... 3
Insolvency Law.......................................... 3
Interest................................................ 3
Interest Payment Date................................... 3
Issuer.................................................. 3
Judgment Currency....................................... 3
Officers' Certificate................................... 4
Opinion of Counsel...................................... 4
Original issue date..................................... 4
Original Issue Discount Security........................ 4
Outstanding............................................. 4
Periodic Offering....................................... 5
Person.................................................. 5
Principal............................................... 5
Redemption Date......................................... 5
Redemption Price........................................ 5
Registered Global Security.............................. 5
Registered Security..................................... 5
Regular Record Date..................................... 5
Required Currency....................................... 5
Responsible Officer..................................... 5
SEC Reports............................................. 5
Securities Act.......................................... 5
Security or Securities.................................. 6
Security Registrar...................................... 6
Stated Maturity......................................... 6
Trust Indenture Act of 1939............................. 6
Trustee................................................. 6
Unregistered Security................................... 6
U.S. Government Obligations............................. 6
Yield to Maturity....................................... 6
ARTICLE TWO - ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally.............................. 6
SECTION 2.2 Form of Trustee's Certificate of
Authentication............................... 7
SECTION 2.3 Amount Unlimited; Issuable in Series......... 7
SECTION 2.4 Authentication and Delivery of Securities.... 10
SECTION 2.5 Execution of Securities...................... 12
SECTION 2.6 Certificate of Authentication................ 13
SECTION 2.7 Denomination and Date of Securities; Payments
of Interest.................................. 13
SECTION 2.8 Registration, Transfer and Exchange.......... 14
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities............................ 17
SECTION 2.10 Cancellation of Securities; Disposition
Thereof...................................... 18
SECTION 2.11 Temporary Securities......................... 18
ARTICLE THREE - COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest............ 19
SECTION 3.2 Offices for Payments, etc.................... 20
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee...................................... 21
SECTION 3.4 Paying Agents................................ 21
SECTION 3.5 Written Statement to Trustee................. 22
SECTION 3.6 Corporate Existence.......................... 22
SECTION 3.7 Luxembourg Publications...................... 22
ARTICLE FOUR - SECURITYHOLDERS' LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders....... 22
SECTION 4.2 Preservation and Disclosure of
Securityholders' Lists....................... 23
SECTION 4.3 Reports by the Issuer........................ 23
SECTION 4.4 Reports by the Trustee....................... 23
ARTICLE FIVE - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default ................. 24
SECTION 5.2 Collection of Debt by Trustee; Trustee May
Prove Debt................................... 27
SECTION 5.3 Application of Proceeds...................... 28
SECTION 5.4 Suits for Enforcement........................ 29
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings.................................. 29
SECTION 5.6 Limitations on Suits by Securityholders...... 30
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits...................... 30
SECTION 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default............... 30
SECTION 5.9 Control by Securityholders................... 31
SECTION 5.10 Waiver of Past Defaults...................... 31
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances............ 32
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs..................... 32
ARTICLE SIX - CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default............. 32
SECTION 6.2 Certain Rights of the Trustee................ 33
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of
Proceeds Thereof............................. 34
SECTION 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc.................... 35
SECTION 6.5 Monies Held by Trustee....................... 35
SECTION 6.6 Compensation and Indemnification of Trustee
and Its Prior Claim.......................... 35
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc............................. 36
SECTION 6.8 Persons Eligible for Appointment as Trustee.. 36
SECTION 6.9 Resignation and Removal; Appointment of
Successor Trustee; Conflicting Interests..... 36
SECTION 6.10 Acceptance of Appointment by Successor
Trustee...................................... 38
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business of Trustee............ 39
SECTION 6.12 Preferential Collection of Claims Against
the Issuer................................... 39
SECTION 6.13 Appointment of Authenticating Agent.......... 39
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.. 40
SECTION 7.2 Proof of Execution of Instruments and of
Holding of Securities........................ 40
SECTION 7.3 Holders to be Treated as Owners.............. 41
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding.................................. 42
SECTION 7.5 Right of Revocation of Action Taken.......... 42
SECTION 7.6 Record Date for Consents and Waivers......... 42
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders.............................. 43
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders.............................. 44
SECTION 8.3 Effect of Supplemental Indenture............. 46
SECTION 8.4 Documents to Be Given to Trustee............. 46
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures..................... 46
ARTICLE NINE - CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge,
Consolidate, Sell or Convey Property Except
Under Certain Conditions..................... 46
SECTION 9.2 Successor Corporation Substituted............ 47
SECTION 9.3 Opinion of Counsel to Trustee................ 47
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED
MONIES
SECTION 10.1 Satisfaction and Discharge of Indenture...... 48
SECTION 10.2 Application by Trustee of Funds Deposited
for Payment of Securities.................... 52
SECTION 10.3 Repayment of Monies Held by Paying Agent..... 52
SECTION 10.4 Return of Monies Held by Trustee and Paying
Agent Unclaimed for Two Years................ 52
SECTION 10.5 Indemnity for U.S. Government Obligations.... 53
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual
Liability.................................... 53
SECTION 11.2 Provisions of Indenture for the Sole Benefit
of Parties and Securityholders............... 53
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture.................................... 53
SECTION 11.4 Notices and Demands on Issuer, the Trustee
and Securityholders.......................... 53
SECTION 11.5 Officers' Certificates and Opinions of
Counsel, Statements to Be Contained Therein.. 54
SECTION 11.6 Payments Due on Saturdays, Sundays and Legal
Holidays..................................... 55
SECTION 11.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939.................. 55
SECTION 11.8 New York Law to Govern; Separability......... 55
SECTION 11.9 Counterparts................................. 55
SECTION 11.10 Effect of Headings........................... 56
SECTION 11.11 Securities in a Foreign Currency or in ECU... 56
SECTION 11.12 Judgment Currency............................ 56
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Application of Article....................... 57
SECTION 12.2 Notice of Redemption......................... 57
SECTION 12.3 Payment of Securities Called for Redemption.. 58
SECTION 12.4 Mandatory and Optional Sinking Funds......... 59
TESTIMONIUM................................................... 62
SIGNATURES AND SEALS.......................................... 62
ACKNOWLEDGEMENTS.............................................. 63
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CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended, and the Indenture
to be dated as of November ___, 1996 between Freeport-McMoRan Copper & Gold
Inc. and The Chase Manhattan Bank, as Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5)........................................6.8
310(a)(3) and (4)....................................Inapplicable
310(b)........................................6.9(a), (b) and (d)
310(c)...............................................Inapplicable
311(a) and (b)...............................................6.12
311(c)...............................................Inapplicable
312(a).............................................4.1 and 4.2(a)
312(b).....................................................4.2(b)
312(c).....................................................4.2(c)
313(a).....................................................4.4(a)
313(a)(5)..................................................4.4(b)
313(b).....................................................4.4(b)
313(c) ....................................................4.4(c)
313(d).....................................................4.4(d)
314(a)................................................3.5 and 4.3
314(b)...............................................Inapplicable
314(c).......................................................11.5
314(d)...............................................Inapplicable
314(e).......................................................11.5
314(f)...............................................Inapplicable
315(a), (c) and (d)...........................................6.1
315(b).......................................................5.11
315(e) ......................................................5.12
316(a)(1).....................................................5.9
316(a)(2)............................................Not required
316(a) (last sentence)........................................7.4
316(b)........................................................5.7
316(c)........................................................7.6
317(a)........................................................5.2
317(b)........................................................3.4
318(a).......................................................11.7
*This Cross Reference Sheet is not part of the Indenture.
-ii-
THIS INDENTURE, dated as of November __, 1996, by and between
Freeport-McMoRan Copper & Gold Inc. (the "Issuer"), a Delaware corporation,
and The Chase Manhattan Bank, a New York corporation, as trustee (the
"Trustee"),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized by the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication,
delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement of the Issuer according to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders thereof, the Issuer and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective Holders
from time to time of the Securities and of the Coupons, if any appertaining
thereto, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939 or are defined in the Securities Act and
referred to in the Trust Indenture Act of 1939 (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have
the meanings assigned to such terms in the Trust Indenture Act of 1939 and
in the Securities Act as in force at the date of this Indenture. All
accounting terms used herein and not expressly defined shall have the
meanings given to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" shall
mean generally accepted accounting principles in the United States which
are in effect on the date or time of any determination. The words
"herein", "hereof" and "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or
other subdivision. The terms defined in this Article include the plural as
well as the singular.
"Authenticating Agent" shall have the meaning set forth in
Section 6.13.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition), in the case of London, will, if practicable, be the
Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxemburger Wort) published in an official language of
the country of publication customarily published at least once a day for at
least five days in each calendar week and of general circulation in the
City of New York, London or Luxembourg as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any
notice required hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the approval of the
Trustee shall constitute a sufficient publication of such notice.
"Authorized Signatory" means any of the chairman of the Board of
Directors, the president, any vice president (whether or not designated by
a number or numbers or a word or words added before or after the title
"Vice President"), the treasurer or any assistant treasurer or the
secretary or any assistant secretary of any Person.
"Board of Directors" of any Person means the Board of Directors
of such Person or any committee of such Board duly formed and authorized to
act on its behalf.
"Board Resolution" of any Person means a copy of one or more
resolutions, certified by the secretary or an assistant secretary of such
Person to have been duly adopted or consented to by the Board of Directors
of such Person and to be in full force and effect, and delivered to the
Trustee.
"Business Day" means, with respect to a Security, a day that in
the city (or in any cities, if more than one) in which amounts are payable,
as specified in the form of such Security, which is not a day on which
banking institutions and trust companies are authorized by law or
regulation or executive order to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any
time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, the body performing such duties on such date.
"Company Order" means a written statement, request or order of
the Issuer which is signed in the Issuer's name by the chairman of the
Board of Directors, the president, any executive vice president, any senior
vice president or any vice president of the Issuer.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which this
Indenture is dated, located at 450 West 33rd Street, New York, New York
10001.
"Coupon" means any interest coupon appertaining to a Security.
"Debt" shall have the meaning set forth in Section 5.1.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Defeasance" shall have the meaning set forth in Section 10.1.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more
Registered Global Securities, the Person designated as the Depositary by
the Issuer pursuant to Section 2.3 until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such
series shall mean the Depositary with respect to the Registered Global
Securities of that series; provided that any Person that is a Depositary
hereunder must be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
"ECU" means The European Currency Unit as defined and revised
from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as such
in Section 5.1.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Foreign Currency" means a currency issued by the government of a
country other than the United States.
"guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any indebtedness of any Person
and any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such indebtedness of such Person (whether arising by virtue
of partnership arrangements, or by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for
purposes of assuring in any other manner the obligee of such indebtedness
of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, however, that the term "guarantee"
shall not include endorsements for collection or deposit in the ordinary
course of business. The term "guarantee" used as a verb has a
corresponding meaning.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean (a) in the case of any Registered Security, the Person
in whose name such Security is registered in the Security register kept by
the Issuer for that purpose in accordance with the terms hereof, and (b) in
the case of any Unregistered Security, the bearer of such Security, or any
Coupon appertaining thereto, as the case may be.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended
or supplemented or both, and shall include the forms and terms of
particular series of Securities established as contemplated hereunder.
"Insolvency Law" means any applicable bankruptcy, insolvency,
reorganization or similar law in any applicable jurisdiction.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Interest Payment Date" when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Issuer" means Freeport-McMoRan Copper & Gold Inc., a Delaware
corporation, and, subject to Article Nine, its successors and assigns.
"Judgment Currency" shall have the meaning set forth in Section
11.12.
"Officers' Certificate" means a certificate signed by the
chairman of the board or the president or any vice president (whether or
not designated by a number or numbers or a word or words added before or
after the title "Vice President") and by the treasurer or any assistant
treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 11.5, if and to the extent required
hereby.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Issuer or such other
legal counsel who may be satisfactory to the Trustee. Each such opinion
shall include the statements provided for in Section 11.5, if and to the
extent required hereby.
"original issue date" of any Security (or portion thereof) means
the earlier of (a) the Issue Date of such Security or (b) the Issue Date of
any Security (or portion thereof) for which such Security was issued
(directly or indirectly) on registration of transfer, exchange or
substitution. For purposes of this definition, "Issue Date" means, with
respect to a Security, the date of original issuance thereof.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 5.1.
"Outstanding", when used with reference to Securities of any
series issued hereunder, shall, subject to the provisions of Section 7.4,
mean, as of any particular time, all Securities of such series
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which
the provisions of Article 10 hereof shall not be applicable), or
portions thereof, for the payment or redemption of which monies or
U.S. Government Obligations (as provided for in Section 10.1) in the
necessary amount shall have been deposited in trust with the Trustee
or with any paying agent (other than the Issuer) or shall have been
set aside, segregated and held in trust by the Issuer (if the Issuer
shall act as its own paying agent), provided that if such Securities,
or portions thereto, are to be redeemed prior to the Stated Maturity
thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered,
pursuant to the terms of Section 2.9 (unless proof satisfactory to the
Trustee is presented that any of such Securities is held by a Person
in whose hands such Security is a legal, valid and binding obligation
of the Issuer).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the
Stated Maturity or maturities thereof and the redemption provisions, if
any, with respect thereto, are to be determined by the Issuer or its agents
upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities of any
series or any portion thereof, shall be deemed to include "and premium, if
any".
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Global Security" means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.4, and bearing the legend
prescribed in Section 2.4.
"Registered Security" means any Security registered on the
Security register of the Issuer, which Security shall be without Coupons.
"Regular Record Date" for interest payable on any Interest
Payment Date on the Registered Securities of any series means the date
specified for that purpose as contemplated by Section 2.3, or if no such
date is established, if such Interest Payment Date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or,
if such Interest Payment Date is the fifteenth day of a calendar month, the
first day of such calendar month, whether or not such Regular Record Date
is a Business Day.
"Required Currency" shall have the meaning set forth in Section
11.12.
"Responsible Officer", when used with respect to the Trustee
means any officer in the Corporate Trustee Administration Department (or
any successor group) of the Trustee, including any vice president,
assistant vice president, senior trust officer, trust officer, secretary or
any assistant secretary or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred at the Corporate Trust Office
because of his knowledge of and familiarity with the particular subject.
"SEC Reports" shall have the meaning set forth in Section 4.3.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Securities of any
series, authenticated and delivered under this Indenture.
"Security Registrar" means the Trustee or any successor Security
Registrar appointed by the Issuer.
"Stated Maturity" means, with respect to any Security, the date
specified in such Security as the fixed date on which the principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the Holder thereof upon the happening of any
contingency unless such contingency has occurred) and with respect to any
installment of interest upon such Security, the date specified in such
Security, or Coupon appertaining thereto, if applicable as the fixed date
on which such installment of interest is due and payable.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at
the date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
person who is then a trustee hereunder and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the trustee with respect to the Securities of such
series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(A).
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of the issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series,
and calculated in accordance with generally accepted financial practice.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series and the
Coupons, if any, issued hereunder shall be substantially in such form and
bear such legends (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions of the Issuer
(as set forth in a Board Resolution of the Issuer or, to the extent
established pursuant to rather than set forth in a Board Resolution of the
Issuer, an Officers' Certificate of the Issuer detailing such
establishment) or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as
may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers of the
Issuer executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons, if any. If temporary Securities
are issued as permitted by Section 2.11, the form thereof also shall be
established as provided in the preceding sentence.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities of the series designated herein
referred to in the within-mentioned Senior Indenture.
The Chase Manhattan Bank, Trustee
By:
-----------------------------------
Authorized Officer"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially
the following form:
"This is one of the Securities of the series designated herein
referred to in the within-mentioned Senior Indenture.
The Chase Manhattan Bank, Trustee
By:
-----------------------------------
As Authenticating Agent
By:
-----------------------------------
Authorized Officer"
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered
under this Indenture is unlimited.
The Securities may be issued in one or more series and each such
series shall rank equally and pari passu with all other unsecured and
unsubordinated Debt of the Issuer. There shall be established in or
pursuant to one or more Board Resolutions of the Issuer (and to the extent
established pursuant to rather than set forth in a Board Resolution, in an
Officers' Certificate detailing such establishment) or in one or more
indentures supplemental hereto, prior to the initial issuance of Securities
of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all
other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or
12.3);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited
to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities of
the series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Date on which any such interest
shall be payable and (in the case of Registered Securities) the
Regular Record Date for any interest payable on any Interest Payment
Date and/or the method by which such rate or rates or Regular Record
Date or Dates shall be computed or determined;
(6) the place or places where the principal of and any interest
on Securities of the series shall be payable (if other than as
provided in Section 3.2);
(7) the right, if any, of the Issuer or any Holder to redeem or
cause to be redeemed Securities of the series, in whole or in part, at
its option and the period or periods within which, the price or prices
at which, and the manner in which (if different from the provisions of
Article Twelve hereof), and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking
fund or otherwise and/or the method by which such price or prices
shall be determined;
(8) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series, in whole or in part, pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the
option of a Holder thereof and the price or prices (and/or the method
by which such price or prices shall be determined) at which and the
period or periods within which and the manner in which (if different
from the provisions of Article Twelve hereof) Securities of the series
shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations in
which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities
of that series are denominated, the coin or currency in which payment
of the principal of or interest on the Securities of such series shall
be payable;
(12) if the principal of or interest on the Securities of such
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency other than that in which the Securities
are denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made and the manner in
which the exchange rate with respect to such payments shall be
determined;
(13) if the amount of payments of principal of and/or interest on
the Securities of the series may be determined with reference to the
value or price of any one or more commodities, currencies or indices,
the manner in which such amounts will be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities and, if so, the Depositary
therefor and the form of any legend in addition or in lieu of that
provided in Section 2.4 to be borne by such Registered Global
Security) or Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions and procedures
applicable to the offer, sale or delivery of Unregistered Securities
or the payment of interest thereon, if other than as provided in
Section 2.8, and the terms upon which Unregistered Securities of any
series may be exchanged for Registered Securities of such series and
vice versa if other than provided in Section 2.8;
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series to Holders or
certain Holders thereof in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Issuer will have the option to redeem such Securities rather than pay
such additional amounts (and the terms of any such option);
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(17) any trustees, depositaries authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series;
(18) provisions, if any, granting specific rights to the Holders
of Securities of such series upon the occurrence of such events as may
be specified;
(19) any deletions from, modifications of or additions to the
Events of Default or covenants set forth herein (including any defined
terms relating thereto);
(20) the term and condition upon which and the manner in which
Securities of the series may be defeased or defeasible if different
from the provisions of Article Ten;
(21) whether the Securities will be issued as global Securities
and, if other than as provided in Section 2.8, the terms upon which
such global Securities may be exchanged for definitive Securities;
(22) offices at which presentation and demands may be made and
notices be served, if other than the Corporate Trust Office; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons appertaining thereto, if
any, shall be substantially identical, except in the case of Registered
Securities as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officers' Certificate referred to above
or as set forth in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and may be issued
from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution, such Officers'
Certificate or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. Upon the
execution and delivery of this Indenture, or from time to time thereafter,
Securities, including Coupons appertaining thereto, if any, may be executed
by the Issuer and delivered to the Trustee for authentication together with
the applicable documents referred to below in this section, and the Trustee
shall thereupon authenticate and deliver such Securities and Coupons
appertaining thereto, if any, to or upon the order of the Issuer (contained
in the Company Order referred to below in this section) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be
specified from time to time by a Company Order, without any further action
by the Issuer. The maturity date, original issue date, interest rate and
any other terms of the Securities of such series and Coupons, if any,
appertaining thereto shall be determined by or pursuant to such Company
Order or procedures authorized by such Company Order. If provided for in
such procedures, such Company Order may authorize authentication and
delivery of Securities pursuant to oral instructions from the Issuer or its
duly authorized agent, which instructions shall be promptly confirmed in
writing. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs 2, 3 and
4 below only at or before the time of the first request of the Issuer to
the Trustee to authenticate Securities of such series) and (subject to
Section 6.1) shall be fully protected in relying upon, unless and until
such documents have been superseded or revoked:
(1) a Company Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are
not to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such
Company Order may be delivered by the Issuer to the Trustee prior to
the delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver Securities of
such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount
established for such series, pursuant to a Company Order or pursuant
to procedures acceptable to the Trustee as may be specified from time
to time by such Company Order, (c) the maturity date or dates,
original issue date or dates or interest rate or rates and any other
terms of Securities of such series shall be determined by a Company
Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and
delivery of Securities pursuant to oral or electronic instructions
from the Issuer or its duly authorized agent or agents, which oral or
electronic instructions shall be promptly confirmed in writing, and
(e) after the original issuance of the first Security of such series
to be issued, any separate request by the Issuer that the Trustee
authenticate Securities of such series for original issuance will be
deemed to be a certification by the Issuer that it is in compliance
with all conditions precedent provided for in this Indenture relating
to the authentication and delivery of such Securities;
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities and Coupons,
if any, were established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities and stating that the form or forms and terms
of the Securities and Coupons, if any, have been established pursuant
to Sections 2.1 and 2.3 and comply with this Indenture, and covering
such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either an Opinion of Counsel of
the Issuer, or a letter addressed to the Trustee permitting it to rely
on an Opinion of Counsel of the Issuer, substantially to the effect
that:
(a) the forms of the Securities and Coupons, if any, have
been duly authorized and established in conformity with the
provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of
the Securities have been duly authorized and established in con-
formity with the provisions of this Indenture, and, in the case
of a Periodic Offering, certain terms of the Securities have been
established pursuant to a Board Resolution of the Issuer, an
Officers' Certificate or a supplemental indenture in accordance
with this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in a Company Order
shall have been established, all such terms will have been duly
authorized by the Issuer and will have been established in
conformity with the provisions of this Indenture;
(c) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered to
and duly paid for by the purchasers thereof, they will have been
duly issued under this Indenture and will be valid and legally
binding obligations of the Issuer, enforceable in accordance with
their respective terms, and will be entitled to the benefits of
this Indenture; and
(d) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under the Securities
and the Coupons, if any, will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of
the Issuer or any agreement or other instrument binding upon the
Issuer or any of the subsidiaries of the Issuer that is material
to the Issuer, considered as one enterprise with its
subsidiaries, or, to the best of such counsel's knowledge but
without independent investigation, any judgment, order or decree
of any governmental body, agency or court having jurisdiction
over the Issuer or any of its subsidiaries, and no consent,
approval or authorization of any governmental body or agency is
required for the performance by the Issuer of its obligations
under the Securities and Coupons, if any, except such as are
specified and have been obtained and such as may be required by
the securities or blue sky laws of the various states in
connection with the offer and sale of the Securities and Coupons,
if any.
In rendering such opinions, such counsel may qualify any opinions as
to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation,
moratorium and other similar laws affecting the rights and remedies of
creditors and is subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law). Such counsel may rely upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that
such counsel believes he and the Trustee are entitled so to rely. Such
counsel may also state that, insofar as such opinion involves factual
matters, he has relied, to the extent he deems proper, upon certificates of
officers of the Issuer and any of its subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the
Issuer or if the Trustee in good faith by its Board of Directors or board
of trustees, executive committee, or a trust committee of directors or
trustees or Responsible Officers shall determine that such action would
expose the Trustee to personal liability to existing Holders or would
affect the Trustee's own rights, duties or immunities under the Securities,
this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that all or a
portion of the Securities of a series are to be issued in the form of one
or more Registered Global Securities, then the Issuer shall execute and the
Trustee shall, in accordance with this Section 2.4 and the Company Order
with respect to such series, authenticate and deliver one or more
Registered Global Securities that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of all or
a portion of the Securities of such series issued and not yet cancelled or
exchanged to be represented by such Registered Global Securities, (ii)
shall be registered in the name of the Depositary for such Registered
Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or a nominee thereof
or a custodian therefor or pursuant to such Depositary's instructions and
(iv) shall bear a legend substantially to the following effect: "This
Security is a Registered Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be exchanged in
whole or in part for a Security registered, and no transfer of this
Security in whole or in part may be registered in the name of any Person
other than such Depositary or a nominee thereof, except in the limited
circumstances described in the Indenture."
SECTION 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of
the Issuer by the chairman of the Board of Directors, the president, any
vice president (whether or not designated by a number or numbers or a word
or words added before or after the title "Vice President") or the Treasurer
of the Issuer, under its corporate seal (except in the case of Coupons)
which may, but need not be, attested. Such signature may be the manual or
facsimile signature of the present or any future such chairman or officers.
The corporate seal of the Issuer may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in any such
reproduction of any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed shall be authenticated and delivered by the
Trustee or disposed of by the Issuer, such Security or Coupon nevertheless
may be authenticated and delivered or disposed of as though the Person who
signed such Security or Coupon had not ceased to be such officer of the
Issuer; and any Security or Coupon may be signed on behalf of the Issuer by
such Person as, at the actual date of the execution of such Security or
Coupon, shall be the proper officer of the Issuer, although at the date of
the execution and delivery of this Indenture any such Person was not such
officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the
form set forth in Section 2.2, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Security executed by the Issuer shall
be conclusive evidence that the Security and Coupons, if any, appertaining
thereto so authenticated have been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this
Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities
of any series, if not so established, in denominations of $1,000 and any
integral multiple thereof. If denominations of Unregistered Securities of
any series are not so established, such Securities shall be issuable in
denominations of $1,000 and $5,000. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the chairman or the officers of the Issuer
executing the same may determine with the approval of the Trustee, as
evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in
or pursuant to the Board Resolution or Resolutions or indenture
supplemental hereto referred to in Section 2.3 or, if not so specified,
each such Unregistered Security shall be dated as of the date of issuance
of the first Unregistered Security of such series to be issued. The
Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the Interest Payment Dates, established
as contemplated by Section 2.3.
The Person in whose name any Registered Security of any series is
registered at the close of business on any Regular Record Date applicable
to such series with respect to any Interest Payment Date for such series
shall be entitled to receive the interest, if any, payable on such Interest
Payment Date notwithstanding any transfer or exchange of such Registered
Security subsequent to such Regular Record Date and prior to such Interest
Payment Date, except if and to the extent the Issuer shall default in the
payment of the interest due on such Interest Payment Date for such series,
in which case such defaulted interest shall then cease to be payable to the
Holder on such Regular Record Date by virtue of having been such Holder and
shall be paid to the Persons in whose names Outstanding Registered
Securities for such series are registered at the close of business on a
subsequent record date (which shall be not less than five Business Days
prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Issuer to the Holders of
Registered Securities not less than 15 days preceding such subsequent
record date. Interest on any Unregistered Securities which is due on any
Interest Payment Date shall be paid to the Holder of the applicable Coupon
appertaining to such Unregistered Security.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will
cause to be kept at each office or agency to be maintained for the purpose
as provided in Section 3.2 for each series of Securities a register in
which, subject to such reasonable regulations as it may prescribe, it will
provide for the registration of Registered Securities of each series and
the registration of transfer of Registered Securities of such series. Such
register shall be in written form in the English language or in any other
form capable of being converted into such form within a reasonable time.
At all reasonable times such register or registers shall be open for
inspection by the Trustee. There may not be more than one register for
each series of Securities.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for
the purpose provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of such
series, Stated Maturity, interest rate and original issue date in any
authorized denominations and of a like aggregate principal amount and
tenor.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary
global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, any Security may be exchanged for
a Security of the same series, of like tenor, in authorized denominations
and in an equal aggregate principal amount upon surrender of such Security
at an office or agency to be maintained for such purpose in accordance with
Section 3.2 or as specified pursuant to Section 2.3, and the Issuer shall
execute, and the Trustee shall authenticate and deliver in exchange
therefor, the Security or Securities which the Holder making the exchange
shall be entitled to receive bearing a number or other distinguishing
symbol not contemporaneously outstanding. Subject to the foregoing, (i) a
Registered Security of any series (other than a Registered Global Security,
except as set forth below) may be exchanged for a Registered Security or
Securities of the same series; (ii) if the Securities of any series are
issued in both registered and unregistered form, except as otherwise
specified pursuant to Section 2.3, Unregistered Securities may be exchanged
for a Registered Security or Securities of the same series, but a
Registered Security may not be exchanged for an Unregistered Security or
Securities; and (iii) if Unregistered Securities of any series are issued
in more than one authorized denomination, except as otherwise specified
pursuant to Section 2.3, any such Unregistered Security or Securities may
be exchanged for an Unregistered Security or Securities of the same series;
provided that in connection with the surrender of any Unregistered
Securities that have Coupons attached, all unmatured Coupons and all
matured Coupons in default must be surrendered with the Securities being
exchanged. If the Holder of an Unregistered Security is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons in
default, such exchange may be effected if the Unregistered Securities are
accompanied by payment in funds acceptable to the Issuer in an amount equal
to the face amount of such missing Coupon or Coupons, or the surrender of
such missing Coupon or Coupons may be waived by the Issuer and the Trustee
if there is furnished to them such security or indemnity as they may
require to save each of them and any paying agent harmless. If thereafter
the Holder of such Security shall surrender to any paying agent any such
missing Coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive from the Issuer the amount of such
payment; provided, however, that, except as otherwise provided in Section
3.2, interest represented by Coupons shall be payable only upon the
presentation and surrender of those Coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case an
Unregistered Security of any series is surrendered at any such office or
agency in exchange for a Registered Security of the same series of like
tenor after the close of business at such officer agency on (i) any Regular
Record Date and before the opening of business at such office or agency on
the relevant Interest Payment Date, or (ii) any subsequent record date and
the before the opening of business at such office or agency on such
subsequent date for the payment of interest in default, such Unregistered
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or subsequent date for payment, as the case may be, and
interest or interest in default, as the case may be, will not be payable on
such Interest Payment Date or subsequent date for payment, as the case may
be, in respect of the Registered Security issued in exchange for such
Unregistered Security, but will be payable only to the Holder of such
Coupon when due in accordance with the provisions of this Indenture. All
Securities and Coupons surrendered upon any exchange or transfer provided
for in this Indenture shall be promptly cancelled and disposed of by the
Trustee and the Trustee will deliver a certificate of disposition thereof
to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption, repurchase or payment shall (if so required by the
Issuer or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer
and the Trustee, duly executed by the Holder or his attorney duly
authorized in writing.
Each Registered Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Registered Global Security or a nominee thereof, and each such Registered
Global Security shall constitute a single security for all purposes of this
Indenture.
The Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed, (b) any Securities selected, called or being called for
redemption in whole or in part, except in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed, (c) any
Security if the Holder thereof has exercised his right, if any, to require
the Issuer to repurchase such Security in whole or in part, except the
portion of such Security not required to be repurchased or (d) to exchange
any Unregistered Security so selected for redemption, except that such
Unregistered Security may be exchanged for a Registered Security of that
series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion
of the Securities of a series may not be transferred except as a whole by
the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor
Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a
series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or is no longer eligible because it ceased to be a
clearing agency registered under the Exchange Act or any other applicable
statute or regulation, the Issuer shall appoint a successor Depositary with
respect to such Registered Securities. If a successor Depositary for such
Registered Securities is not appointed by the Issuer within 90 days after
the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer's election pursuant to Section 2.3 that such Registered Securities
be represented by one or more Registered Global Securities shall no longer
be effective and the Issuer will execute, and the Trustee, upon receipt of
an Officers' Certificate of the Issuer for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without Coupons, of
like tenor in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Registered Global Security or
Securities representing such Registered Securities in exchange for such
Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer will execute, and
the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive
registered form without Coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for
such Registered Global Security may surrender such Registered Global
Security in exchange in whole or in part for Securities of the same series
in definitive registered form on such terms as are acceptable to the Issuer
and such Depositary. Thereupon, the Issuer shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without Coupons, in authorized denominations,
such Registered Global Security shall be cancelled by the Trustee or an
agent of the Issuer or the Trustee. Securities in definitive registered
form without Coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.8 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or an agent of the Issuer or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
None of the Issuer, the Trustee, any paying agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
All Securities issued upon any transfer or exchange of Securities
shall be valid and legally binding obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture, as
the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of
the foregoing (any of which, other than the Issuer, shall rely on an
Officers' Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such
exchange would result in adverse federal income tax consequences to the
Issuer (such as, for example, the inability of the Issuer to deduct from
its income, as 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
with Coupons corresponding to the Coupons appertaining to the Securities so
mutilated, defaced, destsroyed, lost or stolen, or in exchange for the
Security to which a mutilated, defaced, destroyed, lost or stolen Coupon
appertained with Coupons appertaining thereto corresponding to the Coupons
so mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the Issuer
and to the Trustee and any agent of the Issuer or the Trustee such security
or indemnity as may be required by them to indemnify and defend and to save
each of them harmless and, in every case of apparent destruction, loss or
theft, evidence to their satisfaction of the apparent destruction, loss or
theft of such Security or Coupon and of the ownership thereof. In the case
of a mutilated or defaced Security or Coupon, the applicant for a
substitute Security or Coupon shall surrender such mutilated or defaced
Security or Coupon to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or its agent)
connected therewith. In case any Security or Coupon which has matured or
is about to mature or has been called for redemption in full shall become
mutilated or defaced or be apparently destroyed, lost or stolen, the Issuer
may, instead of issuing a substitute Security or Coupon, pay or authorize
the payment of the same or the relevant Coupon (without surrender thereof
except in the case of a mutilated or defaced Security or Coupon), if the
applicant for such payment shall furnish to the Issuer and to the Trustee
and any agent of the Issuer or the Trustee such security or indemnity as
any of them may require to save each of them harmless from all risks,
however remote, arising as a result of such payment and, in every case of
apparent destruction, loss or theft, the applicant shall also furnish to
the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the apparent destruction, loss or theft
of such Security and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security
or Coupon is apparently destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not the
apparently destroyed, lost or stolen Security or Coupon shall be at any
time enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities or
Coupons of such series duly authenticated and delivered hereunder. All
Securities or Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced,
or apparently destroyed, lost or stolen Securities and Coupon and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities
without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities and Coupons surrendered for payment, repurchase, redemption,
registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer or any
agent of the Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or its agent for cancellation or, if surrendered
to the Trustee, shall be cancelled by it; and no Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of
this Indenture. The Trustee or its agent shall dispose of cancelled
Securities and Coupons held by it and deliver a certificate of disposition
to the Issuer unless the Issuer shall direct that cancelled Securities be
returned to it. If the Issuer shall acquire any of the Securities or
Coupons, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities or Coupons unless and
until the same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the
Trustee shall authenticate and deliver temporary Securities for such series
(printed, lithographed, typewritten or otherwise reproduced, in each case
in form satisfactory to the Trustee). Temporary Securities of any series
shall be issuable as Registered Securities without Coupons, or as
Unregistered Securities with or without Coupons attached thereto, of any
authorized denomination, and substantially in the form of the definitive
Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced
by the execution and authentication thereof. Temporary Securities may
contain such references to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the Issuer and
be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the
Issuer for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer for such
purpose as specified pursuant to Section 3.2, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the
same series having authorized denominations and, in the case of
Unregistered Securities, having attached thereto any appropriate Coupons.
Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities
of such series, unless otherwise established pursuant to Section 2.3. The
provisions of this Section are subject to any restrictions or limitations
on the issue and delivery of temporary Unregistered Securities of any
series that may be established pursuant to Section 2.3 (including any
provision that Unregistered Securities of such series initially be issued
in the form of a single global Unregistered Security to be delivered to a
depositary or agency located outside the United States and the procedures
pursuant to which definitive or global Unregistered Securities of such
series would be issued in exchange for such temporary global Unregistered
Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities issued hereunder
that it will duly and punctually pay or cause to be paid the principal of
and interest on, each of the Securities of such series (together with any
additional amounts payable with respect to and pursuant to the terms of
such Securities) at the place or places, at the respective times and in the
manner provided in the Securities of such series and in the Coupons, if
any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts
payable with respect to such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid
while such Security is in temporary form, the interest on any such
temporary Unregistered Security (together with any additional amounts
payable with respect to such Security) shall be paid, as to the
installments of interest evidenced by Coupons attached thereto, if any,
only upon presentation of such Securities for notation thereon of the
payment of such interest, in each case subject to any restrictions that may
be established pursuant to Section 2.3. The interest on Registered
Securities (together with any additional amounts payable with respect to
such Securities ) shall be payable only to or upon the written order of the
Holders thereof entitled thereto and, at the option of the Issuer, may be
paid by wire transfer (subject to the procedures of the paying agent) or by
mailing checks for such interest payable to or upon the written order of
such Holders at their last addresses as they appear on the registry books
of the Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any Registered
Securities are authorized for issuance pursuant to this Indenture or remain
Outstanding, the Issuer will maintain in the Borough of Manhattan, The City
of New York, an office or agency where the Registered Securities of each
series may be surrendered for payment and where the Registered Securities
of each series may be surrendered for registration of transfer or exchange
as is provided in this Indenture.
The Issuer will maintain one or more offices or agencies in a city or
cities located outside the United States (including any city in which such
an office or agency is required to be maintained under the rules of any
stock exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be surrendered for payment or exchange. No
payment on or exchange of any Unregistered Security or Coupon will be made
upon surrender of such Unregistered Security or Coupon at an office or
agency of the Issuer within the United States nor will any payment be made
by transfer to an account in, or by mail to an address in, the United
States unless pursuant to applicable United States laws and regulations
then in effect such payment can be made without adverse tax consequences to
the Issuer. Notwithstanding the foregoing, payments in Dollars of
Unregistered Securities of any series and Coupons appertaining thereto
which are payable in Dollars may be made at an agency of the Issuer
maintained in The City of New York if such payment in Dollars at each
agency maintained by the Issuer outside the United States for payment on
such Unregistered Securities is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, the City of New
York, an office or agency where notices and demands to or upon the Issuer
in respect of the Securities of any series, the Coupons appertaining
thereto, or this Indenture may be served.
The Issuer will give to the Trustee prompt written notice of the
location of any such office or agency and of any change of location
thereof. The Issuer hereby initially designates the Corporate Trust Office
of the Trustee maintained in the City of New York as the office or agency
for each such purpose to be carried out in New York. The Issuer shall
designate an office or agency outside the United States for each such
purpose relating to Unregistered Securities prior to the issuance of any
Unregistered Securities. In case the Issuer shall fail to maintain any
such office or agency or shall fail to provide such notice of the location
or of any change in the location thereof, presentations and demands may be
made and notices may be served at the Corporate Trust Office.
The Issuer will cause to be kept a register at the office of the
Security Registrar in which, subject to such reasonable regulations as it
may prescribe, the Issuer will provide for the registration of Securities
and of transfers of Securities. The Trustee is hereby initially appointed
Security Registrar for the purpose of registering Securities and
transferring Securities as herein provided.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of any series and any Coupons
appertaining thereto may be presented for payment, where the Securities of
that series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.3 and where the Registered Securities of that series
may be presented for registration of transfer as in this Indenture
provided, and the Issuer may from time to time rescind any such
designation, as the Issuer may deem desirable or expedient; provided,
however, that no such designation or rescission shall in any manner relieve
the Issuer of its obligation to maintain the agencies provided for in the
first three paragraphs of this Section 3.2. The Issuer will give to the
Trustee prompt written notice of any such designation or rescission
thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.9, a Trustee, so
that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint a
paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for
the payment of the principal of or interest on the Securities of such
series (whether such sums have been paid to it by the Issuer or by any
other obligor on the Securities of such series) in trust for the
benefit of the Holders of the Securities of such series or of the
Trustee;
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of or interest on the Securities of
such series when the same shall be due and payable;
(c) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent; and
(d) that it will in all respects comply with the provisions of
the Trust Indenture Act of 1939 applicable to such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a
sum sufficient to pay such principal or interest so becoming due, such sum
to be held as provided in the Trust Indenture Act of 1939, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of
any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the
Securities of such series or the Coupons appertaining thereto a sum
sufficient to pay such principal or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided. The Issuer will promptly notify the Trustee of any failure to
take such action.
Anything in this Section to the contrary notwithstanding, but subject
to Section 10.1, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder or with respect to this Indenture or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for
any such series by the Issuer or any paying agent hereunder, as required by
this Section, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to
the provisions of Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will deliver to
the Trustee on or before March 31 in each year (beginning with March 31,
1997) a brief certificate (which need not comply with Section 11.5) from
the Issuer, signed by its principal executive officer, principal financial
officer, or principal accounting officer, stating that in the course of the
performance by the signer of his duties as an officer of the Issuer, he
would normally have knowledge of any Default or non-compliance by the
Issuer in the performance or fulfillment of any covenant, agreement or
condition of the Issuer, contained in this Indenture, stating whether or
not he has knowledge of any such Default or non-compliance and, if so,
specifying each such Default or non-compliance of which the signer has
knowledge and the nature thereof.
SECTION 3.6 Corporate Existence. Subject to Article Nine, the Issuer
will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises;
provided that the Issuer shall not be required to preserve any such right
or franchise if the Issuer shall determine that the preservation thereof is
no longer desirable in the conduct of its business and that the loss
thereof is not disadvantageous in any material respect to the Holders of
any series of Securities.
SECTION 3.7 Luxembourg Publications. In the event of the publication
of any notice pursuant to Section 5.11, 6.9, 6.10, 8.2, 10.4, 12.2 or 12.5,
the party making such publication in the City of New York and London shall
also, to the extent that notice is required to be given to Holders of
Securities of any series by applicable Luxembourg law or stock exchange
regulation, as evidenced by any Officers' Certificate delivered to such
party, make a similar publication in Luxembourg.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND
REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the
Securities each covenants and agrees that it will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders of the Securities of each
series:
(a) semiannually and not more than 15 days after each Regular
Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request as of a
date not more than 15 days prior to the time such information is
furnished,
provided that if and so long as the Trustee shall be the Security Registrar
for such series and all of the Securities of any series are Registered
Securities, such list shall not be required to be furnished for such
series.
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of
the Holders of each series of Securities (i) contained in the most recent
list furnished to the Trustee as provided in Section 4.1, (ii) received by
the Trustee in its capacity as Security Registrar for such series, if so
acting, and (iii) filed with it within two preceding years pursuant to
Section 313(c)(2) of the Trust Indenture Act of 1939. The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon receipt of
a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under any series of the
Securities, and the corresponding rights and duties of the Trustee, shall
be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that none of the Issuer, the
Trustee or any agent of any of the Issuer or the Trustee shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act of 1939.
SECTION 4.3 Reports by the Issuer. The Issuer shall file with the
Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act of 1939 at the times and in the manner
provided pursuant to such Act, provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act ("SEC Reports") shall be filed with
the Trustee within 15 days after the same is so required to be filed with
the Commission.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days after May 15
of each year, commencing with the first May 15 following the first issuance
of Securities pursuant to Section 2.4, if required by Section 313(a) of the
Trust Indenture Act of 1939, the Trustee shall transmit, pursuant to
Section 313(c) of the Trust Indenture Act of 1939, a brief report dated as
of such May 15 with respect to any of the events specified in said Section
313(a) which may have occurred since the later of the immediately preceding
May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section
313(b) of the Trust Indenture Act and Section 5.11 hereof at the times
specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Section 313(c) of the Trust Indenture
Act of 1939.
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Securities of any series are listed, with the Commission and
with the Issuer. The Issuer will promptly notify the Trustee when the
Securities of any series are listed on any stock exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default," with respect to Securities of any
series wherever used herein, means one of the following events which shall
have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any installment of interest upon
any of the Securities of such series or any Coupon appertaining
thereto (together with any additional amounts payable with respect to
such Securities) as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of
any of the Securities of such series as and when the same shall become
due and payable either at their Stated Maturity, upon any redemption
by declaration or otherwise; provided that, if such default is the
result of an optional redemption by the Holders of such Securities,
the amount thereof shall be in excess of $50,000,000 or the equivalent
thereof in any currency or composite currency; or
(c) failure on the part of the Issuer duly to comply with,
observe or perform any of the other covenants or agreements on the
part of the Issuer contained in, or provisions of, the Securities of
any series or this Indenture (other than a covenant or agreement which
is not applicable to the Securities of such series), but only if such
default shall not have been remedied for a period of 60 days after the
date on which written notice specifying such failure, stating that
such notice is a "Notice of Default" hereunder and demanding that the
Issuer remedy the same, shall have been given by registered or
certified mail, return receipt requested, to the Issuer by the
Trustee, or to the Issuer and the Trustee by the Holders of at least
25% in aggregate principal amount of the Outstanding Securities of
such series of Securities; or
(d) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Issuer in an
involuntary case or proceeding under any applicable Insolvency Law or
(B) a decree or order adjudging the Issuer a bankrupt or insolvent
under an applicable Insolvency Law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Issuer or of any substantial part of the property of
the Issuer or ordering the winding up or liquidation of the affairs of
the Issuer and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or
(e) the commencement by the Issuer of a voluntary case or
proceeding under any applicable Insolvency Law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent
by the Issuer to the entry of a decree or order for relief in respect
of the Issuer in an involuntary case or proceeding under any
applicable Insolvency Law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Issuer or the filing by the
Issuer of a petition, answer or consent seeking reorganization or
relief under any applicable Insolvency Law, or the consent by the
Issuer to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Issuer or of any
substantial part of the property of the Issuer or the making by the
Issuer of an assignment for the benefit of creditors, or the admission
by the Issuer in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action (which shall
involve the passing of one or more Board Resolutions by the Issuer) in
furtherance of any such action,
(f) failure by the Issuer to make any payment at maturity (or
upon any redemption), including any applicable grace period, in
respect of indebtedness, which term as used herein means obligations
(other than the Securities of such series or nonrecourse obligations)
of, or guaranteed or assumed by, the Issuer for borrowed money or
evidenced by bonds, debentures, notes or other similar instruments
("Debt") in an amount in excess of $50,000,000 or the equivalent
thereof in any other currency or composite currency and such failure
shall have continued for a period of thirty days after written notice
thereof shall have been given by registered or certified mail, return
receipt requested, to the Issuer by the Trustee, or to the Issuer and
the Trustee by the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of such series affected thereby;
(g) a default with respect to any Debt, which default results in
the acceleration of Debt in an amount in excess of $50,000,000 or the
equivalent thereof in any other currency or composite currency without
such Debt having been discharged or such acceleration having been
cured, waived, rescinded or annulled for a period of thirty days after
written notice thereof shall have been given by registered or
certified mail, return receipt requested, to the Issuer by the
Trustee, or to the Issuer and the Trustee by the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities
of such series affected thereby; or
(h) any other Event of Default provided for with respect to
Securities of that series in the supplemental indenture under which
such series is issued or in the terms of Securities of such series;
provided that if any such failure, default or acceleration referred to in
clauses (f), (g) and (h) shall cease or be cured, waived, rescinded or
annulled, then the Event of Default hereunder by reason thereof, and any
acceleration under this Section 5.1 resulting solely therefrom, shall be
deemed likewise to have been thereupon cured, waived, rescinded or annulled
without further action on the part of either the Trustee or any of the
Securityholders.
If an Event of Default other than those specified in Section 5.1(d) or
(e) (if the Event of Default is with respect to less than all series of
Securities then Outstanding) occurs and is continuing, then, and in each
and every such case, except for any series of Securities the principal of
which shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the
Securities of each such affected series then Outstanding hereunder (voting
as a single class) by notice in writing to the Issuer (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if the
Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and
the interest accrued thereon, if any (together with any additional amounts
payable with respect to such Securities), to be due and payable
immediately, and upon any such declaration, the same shall become
immediately due and payable. If an Event of Default other than those
specified in Section 5.1(d) or (e) (if the Event of Default is with respect
to all series of Securities then Outstanding), occurs and is continuing,
then and in each and every such case, unless the principal of all the
Securities shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by notice in
writing to the Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if any Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in
the terms thereof) of all the Securities then Outstanding, and interest
accrued thereon, if any (together with any additional amounts payable with
respect to such Securities) to be due and payable immediately, and upon any
such declaration the same shall become immediately due and payable. If an
Event of Default specified in Section 5.1(d) or (e) occurs, the entire
principal (or, if any Securities are Original Issue Discount Securities,
such portion of the principal as may be specified in terms thereof) of all
the Securities then Outstanding, and interest accrued thereon, if any,
(together with any additional amounts payable with respect to such
Securities) shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Securityholder.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities of such series
are Original Issue Discount Securities, such portion of the principal as
may be specified in the terms thereof) of the Securities of any series
shall have been so declared due and payable, and before any judgment or
decree for the payment of the monies due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of
interest (together with any additional amounts payable with respect to such
Securities) upon all the Securities of such series and the principal of any
and all Securities of each such series which shall have become due
otherwise than by acceleration (with interest upon such principal and, to
the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, (together with any additional
amounts payable with respect to such Securities) at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such series (or
the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be, to the date of such payment or deposit) and
such amount as shall be sufficient to cover reasonable compensation to the
Trustee and each predecessor Trustee, its agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become
due by acceleration, shall have been cured, waived or otherwise remedied as
provided herein -- then and in every such case the Holders of a majority in
aggregate principal amount of all the Securities of each such series or of
all the Securities, as the case may be, in each case voting as a single
class, then Outstanding, by written notice to the Issuer and the Trustee,
may waive all defaults with respect to such series and rescind and annul
such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall
be due and payable as a result of such acceleration, together with accrued
interest, if any, thereon and all other amounts owing thereunder, shall
constitute payment in full of such Original Issue Discount Securities.
SECTION 5.2 Collection of Debt by Trustee; Trustee May Prove Debt.
The Issuer covenants that (a) in case Default shall be made in the payment
of any installment of interest on any of the Securities of any series when
such interest shall have become due and payable and such Default shall have
continued for a period of 30 days or (b) in case Default shall be made in
the payment of all or any part of the principal of any of the Securities of
any series when the same shall have become due and payable, whether upon
the Stated Maturity of the Securities of such series or upon any
redemption or by declaration or otherwise, other than a Default that is the
result of an optional redemption by the Holders of Securities of any
series, the amount of which is not in excess of $50,000,000 or the
equivalent thereof in any currency or composite currency, unless such
Default shall have continued for a period of 60 days after giving a notice
with respect thereto under Section 5.1(c), then upon demand of the Trustee,
the Issuer will pay to the Trustee for the benefit of the Holders of the
Securities of such series the whole amount that then shall have become due
and payable on all such Securities of such series, and such Coupons, if
any, for principal, or interest, as the case may be (with interest to the
date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest or Yield
to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, and
any expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of its negligence
or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the Holders,
whether or not the principal of and interest on Securities of such series
be overdue.
If an Event of Default occurs and is continuing, the Trustee, in its
own name and as trustee of an express trust, shall be entitled and empowered
to institute any action or proceedings at law or in equity to protect and
enforce its rights and the rights of the Holders by such appropriate
judicial proceeding as the Trustee may deem most effectual to protect and
enforce any such rights, and may prosecute any such action or proceedings to
judgment or final decree, and may enforce any such judgment or final decree
against the Issuer or any other obligor upon the Securities of such series
and collect in the manner provided by law out of the property of the
Issuer or any other obligor upon the Securities of such series, wherever
situated the monies adjudged or decreed to be payable.
In the case of any judicial proceeding relating to the Issuer or any
other obligor upon the Securities of such series, or the property or
creditors of the Issuer or any such obligor, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any
and all actions authorized under the Trust Indenture Act of 1939 in order
to have claims of the Holders and the Trustee allowed in any such
proceeding. In addition, unless prohibited by applicable law and
regulations, the Trustee shall be entitled and empowered to vote on behalf
of the Holders of Securities of any series in any election of a trustee or
a standby trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceeding or a Person providing similar functions
in comparable proceedings.
The Trustee shall be authorized to collect and receive any monies or
other property payable or deliverable on any such claims, and to distribute
all amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf, and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that the
Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient
to cover reasonable compensation to the Trustee, each predecessor Trustee
and their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith and all
other amounts due to the Trustee or any predecessor Trustee pursuant to
Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to such
series, may be prosecuted and enforced by the Trustee without the
possession of any of the Securities of such series or Coupons appertaining
to such series or the production thereof on any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment, subject to the payment of the expenses,
disbursements, advances and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities of such series or Coupons
appertaining thereto in respect of which action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which
the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect of which such action was taken, and it shall not be necessary to
make any Holders of such Securities or Coupons appertaining to such
Securities, parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any monies collected by the
Trustee pursuant to this Article in respect of any series shall be applied
in the following order at the date or dates fixed by the Trustee and, in
case of the distribution of such monies on account of principal or
interest, upon presentation of the several Securities and Coupons
appertaining thereto in respect of which monies have been collected and
stamping (or otherwise noting) thereon the payment, or issuing Securities
of the same series, of like tenor, in reduced principal amounts in exchange
for the presented Securities of like series if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to the
Securities of such series in respect of which monies have been
collected, including any and all amounts due the Trustee under Section
6.6;
SECOND: In case the principal of the Securities of such series
in respect of which monies have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which monies have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and interest, with interest upon the overdue principal; and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such monies shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment
of such principal and interest or Yield to Maturity, without
preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of
any installment of interest over any other installment of interest, or
of any Security of such series over any other Security of such series
ratably to the aggregate of such principal and accrued and unpaid
interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other Person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in
aid of the exercise of any power granted in this Indenture or to enforce
any other legal or equitable right vested in the Trustee by this Indenture
or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee or any Securityholder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Securityholder, then and in every such
case, subject to any determination in such proceeding, the Issuer, the
Trustee and the Securityholders shall be restored severally and
respectively to their former positions and rights hereunder, and thereafter
all rights, remedies and powers of the Issuer, the Trustee and the
Securityholders shall continue as though no such proceedings had been
taken.
SECTION 5.6 Limitations on Suits by Securityholders. No Holder of
any Security of any series or of any Coupon appertaining thereto shall have
any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding, judicial or otherwise, at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder,
unless (i) such Holder previously shall have given to the Trustee written
notice of a continuing Event of Default as hereinbefore provided, (ii) the
Holders of not less than 25% in aggregate principal amount of the
Securities of such affected series then Outstanding, treated as a single
class, shall have made written request upon the Trustee to institute such
action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby;
(iii) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity shall have failed to institute any such action or
proceedings; and (iv) no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 5.9; it being
understood and intended, and being expressly covenanted by the Holder of
every Security or Coupon with every other Holder of the Securities of such
series or Coupons and the Trustee, that no one or more Holders of
Securities of such series shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holder of Securities or Coupons
appertaining to such Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under
this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Securities of the applicable
series and Coupons appertaining to such Securities. For the protection and
enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and
any provision of any Security, the right of any Holder of any Security or
Coupon to receive payment of the principal of and interest on (together
with any additional amounts payable with respect to and pursuant to the
terms of such Securities) such Security or Coupon and any interest in
respect of a Default in the payment of any such amounts, on or after the
respective due dates expressed in such Security or Coupon or Redemption
Dates provided for therein or to institute suit for the enforcement of any
such payment rights on or after such respective dates shall not be impaired
or affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 2.9 and 5.6, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders
of Securities or Coupons is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any of the
Securities or Coupons to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall impair any
such right or power or shall be construed to be a waiver of any such Event
of Default or an acquiescence therein; and, subject to Section 5.6, every
power and remedy given by this Indenture or by law to the Trustee or to the
Holders of Securities or Coupons may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Holders of
Securities or Coupons.
SECTION 5.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of any series affected at the
time Outstanding shall have the right to direct the time, method, and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee by this Indenture
with respect to or for the benefit of such Securities of such series;
provided that such direction shall not be otherwise than in accordance with
applicable law and the provisions of this Indenture and provided further
that (subject to the provisions of Section 6. 1) the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised
by counsel, shall determine that the action or proceeding so directed may
not be lawfully taken or that the action or proceeding so directed may
expose the Trustee to personal liability or if the Trustee in good faith by
its board of directors or the executive committee thereof shall so
determine that the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said
direction, it being understood that (subject to Section 6.1) the Trustee
shall have no duty to ascertain whether or not such actions or forbearances
are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding with respect to which an
Event of Default shall have occurred and be continuing may on behalf of the
Holders of all the Securities of such series waive any past Default or
Event of Default hereunder with respect to the Securities of such series
and its consequences, except a Default (a) in the payment of principal or
interest on any Security of such series or (b) in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of
the Holder of each Security affected.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have
occurred for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon. In the case of any such waiver, the Issuer, the
Trustee and the Holders of all such Securities shall be restored to their
former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall, within ninety days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i)
if any Unregistered Securities of that series are then Outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York and at least once in an
Authorized Newspaper in London (and, if required by Section 3.7, at least
once in an Authorized Newspaper in Luxembourg) and (ii) to all Holders of
Securities of such affected series in the manner and to the extent provided
in Section 4.4(c), unless such defaults shall have been cured before the
mailing or publication of such notice (the term "default" or "defaults" for
the purposes of this Section 5.11 being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become,
an Event of Default); provided that, except in the case of default in the
payment of the principal of or interest on any of the Securities of such
series, or in the payment of any sinking or purchase fund installment on
such series, the Trustee shall be protected in withholding such notice if
and so long as the Board of Directors, the executive committee, or a trust
committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in
the interests of the Securityholders.
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit other than the Trustee of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit including the Trustee, having due regard to the
merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than
10% in aggregate principal amount of the Securities of such series
Outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest on any Security
on or after the due date expressed in such Security or any date fixed for
redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an
Event of Default with respect to the Securities of a particular series, and
after the curing or waiving of all Events of Default which may have
occurred with respect to such series, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case
an Event of Default with respect to the Securities of a particular series
has occurred (which has not been cured or waived) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect
to the Securities of any series and after the curing or waiving of all
such Events of Default with respect to such series which may have
occurred:
(i) the duties and obligations of the Trustee with respect
to the Securities of any series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of Holders pursuant to Section 5.9 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there shall be reasonable
ground for believing that the repayment of such funds or adequate indemnity
from the Issuer against such liability is not reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, direction. consent, order, bond, debenture, note, coupon,
security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed), and any Board Resolution of the Issuer may
be evidenced to the Trustee by a copy thereof certified by the
secretary or assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written advice
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon
it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected; provided that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such
examination shall be paid by the Issuer or, if paid by the Trustee or
any predecessor trustee, shall be repaid by the Issuer upon demand;
and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Trustee shall
not be responsible for any misconduct or negligence on the part of any
such agent or attorney appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for
the use or application by the Issuer of any of the Securities or of the
proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc, The Trustee or any agent of the Issuer or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons with the same rights it would have if it were not the
Trustee or such agent and, subject to Section 6.12 and Section 310(b) of
the Trust Indenture Act of 1939 may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer with the same
rights it would have if it were not the Trustee or such agent.
SECTION 6.5 Monies Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all monies received by the Trustee shall, until used
or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law. Neither the Trustee
nor any agent of the Issuer or the Trustee shall be under any liability for
interest on any monies received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust) and the Issuer covenants and agrees to
pay or reimburse the Trustee and each predecessor Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by
or on behalf of it in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other Persons not
regularly in its employ) except any such expense, disbursement or advance
as may arise from its negligence or bad faith. The Issuer also covenants
to indemnify the Trustee and each predecessor Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including but not limited to the costs and
expenses of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligations of the Issuer under this
Section to compensate and indemnify the Trustee and each predecessor
Trustee and to pay or reimburse the Trustee and each predecessor Trustee
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture. Such additional indebtedness shall be a senior claim to
that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of
or interest on particular Securities or Coupons, and the Securities are
hereby subordinated to such senior claim. Without prejudice to any other
rights available to the Trustee under applicable law, when the Trustee
incurs expenses or renders services in connection with an Event of Default
specified in Section 5.1 or in connection with Article Five hereof, the
expenses (including the reasonable fees and expenses of its counsel) and
the compensation for the services in connection therewith are intended to
constitute expenses of administration under any bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered
to the Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 6.8 Persons Eligible for Appointment as Trustee ; Conflict
Interests. The Trustee for each series of Securities hereunder shall at
all times be a corporation organized and doing business under the laws of
the United States of America or of any State or the District of Columbia
having a combined capital and surplus of at least $50,000,000, and which is
authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by Federal, State or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. At no time shall the Trustee be an obligor, or
directly or indirectly, control, be controlled by, or under the common
control with any obligor upon any Securities issued hereunder. In case at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 6.9.
The provisions of this Section 6.8 are in furtherance of and subject
to Section 310(a) of the Trust Indenture Act of 1939.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act of 1939, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided
by, and subject to the provisions of the Trust Indenture Act of 1939 and
this Indenture. To the extent permitted by such Act, the Trustee shall not
be deemed to have a conflicting interest by virtue of being a trustee under
this Indenture with respect to Securities of more than one series or a
trustee under the Indenture dated as of April 15, 1994, among P. T. ALatief
Freeport Finance Company B. V., as issuer, Freeport-McMoRan Copper & Gold
Inc., as guarantor, and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee.
SECTION 6.9 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer. Upon
receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable series by
written instrument in duplicate, executed by authority of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee or trustees.
If no successor trustee shall have been so appointed with respect to any
series and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a Security or
Securities for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.8 or Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written request
therefor by the Issuer or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt
or insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to
the applicable series of Securities and appoint a successor trustee for
such series by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 5.12, any Securityholder who has
been a bona fide Holder of a Security or Securities for at least six months
may on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court
may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of each series at the time outstanding may at any time
remove the Trustee with respect to such series and appoint a successor
trustee with respect to such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7. 1 of the action in that regard taken by
the Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.9 shall become
effective upon acceptance of appointment by the successor trustee as
provided in Section 6.10.
(e) The Issuer shall give notice of each resignation and each
removal of the Trustee of each series of Securities by mailing written
notice of such an event by first-class mail, postage prepaid, to the
Holders of Registered Securities of such series as their names and
addresses appear in the Security register. If any Unregistered Securities
of a series affected are then Outstanding, notice of such resignation shall
be given to the Holders thereof, (i) by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, the City of New York, and
at least once in an Authorized Newspaper in London (and, if required by
Section 3.7, at least once in an Authorized Newspaper in Luxembourg) and
(ii) by mailing notice to those Holders of Unregistered Securities who have
furnished their names and addresses to the Trustee for such purpose within
the two years preceding the giving of such notice.
SECTION 6.10 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.9 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, duties and obligations of its
predecessor hereunder with respect to such series, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless,
on the written request of the Issuer or of the successor trustee, upon
payment of its charges then unpaid, the trustee ceasing to act shall,
subject to Section 10.4, pay over to the successor trustee all monies at
the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall
execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act as such shall, nevertheless, retain a
prior claim upon all property or funds held or collected by it to secure
any amounts then due to it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and
each successor trustee with respect to the Securities of any applicable
series shall execute and deliver an indenture supplemental hereto which
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6. 10 unless at the time of
such acceptance such successor trustee shall be qualified under the
provisions of Section 310(b) of the Trust Indenture Act of 1939 and
eligible under the provisions of Section 6.8 and Section 310(a) of the
Trust Indenture Act of 1939.
Upon acceptance of appointment by a successor trustee for a series of
Securities as provided in this Section 6. 10, the Issuer shall (i) mail
notice thereof by first-class mail to the Holders of Registered Securities
of such series at their last addresses as they shall appear in the Security
register, or (ii) in the case of Holders of Unregistered Securities of such
series, publish such notice once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York, and at least once in an Authorized
Newspaper in London (and, if required by Section 3.7, at least once in an
Authorized Newspaper in Luxembourg) and mail such notice to those Holders
of Unregistered Securities of such series who have filed their names and
addresses with the Trustee for such purpose within two years preceding the
giving of such notice. Each such notice shall include the name of the
successor trustee for such series and the address of its Corporate Trust
Office. If the acceptance of appointment is substantially contemporaneous
with the resignation, then the notice called for by the preceding sentence
may be combined with the notice called for by Section 6.9. If the Issuer
fails to provide such notice within 10 days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to
be provided at the expense of the Issuer.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be qualified
under the provisions of Section 310(b) of the Trust Indenture Act of 1939
and eligible under the provisions of Section 6.8 and Section 310(a) of the
Trust Indenture Act of 1939, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that
time any of the Securities of any series shall not have been authenticated,
any successor to the Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor trustee;
and in all such cases such certificate shall have the full force which it
is anywhere in the Securities of such series or in this Indenture provided
that the certificate of the Trustee shall have; provided, that the right to
adopt the certificate of authentication of any predecessor Trustee or to
authenticate Securities of any series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 6.12 Preferential Collection of Claims Against the Issuer. If
and when the Trustee shall be or become a creditor of the Issuer (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act of 1939 regarding the collection of
claims against the Issuer (or any such other obligor).
SECTION 6.13 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an
instrument in writing, appoint with the approval of the Issuer an
authenticating agent (the "Authenticating Agent") which shall be authorized
to act on behalf of the Trustee to authenticate Securities issued upon
exchange, registration of transfer, partial redemption or pursuant to
Section 2.9. Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by
the Trustee. Whenever reference is made in this Indenture to the
authentication and delivery of Securities of any series by the Trustee or
to the Trustee's Certificate of Authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by
an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any
State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $5,000,000 (determined as
provided in Section 6.9 with respect to the Trustee) and subject to
supervision or examination by Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any Authen-
ticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of Securities for which
it served as Authenticating Agent without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent. Any Authenticating Agent may at any time, and if it shall cease to
be eligible shall, resign by giving written notice of resignation to the
Trustee and to the Issuer.
The Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice thereof to the Authenticating Agent and to
the Issuer. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section 6.13 with
respect to one or more series of Securities, the Trustee may upon receipt
of a Company Order appoint a successor Authenticating Agent and the Issuer
shall provide notice of such appointment to all Holders of Securities of
such series in the manner and to the extent provided in Section 11.4. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent. The Issuer agrees to pay to the Authenticating Agent
for such series from time to time reasonable compensation. The
Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4 and, as agent of the Trustee, 7.3 shall be
applicable to any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Securityholders
of any or all series may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Sections 6.1
and 6.2) conclusive in favor of the Trustee and the Issuer, if made in the
manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in the
following manner:
(a) The fact and date of the execution by any Holder or his agent
or proxy of any instrument, or the authority of such an agent or proxy
to execute such instrument, may be proved by the certificate of any
notary public or other officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the Person executing
such 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 (i) any notice of Default, (ii) declaration
under Section 5.1, (iii) any request to institute proceedings referred to
in Section 5.6 or (iv) any direction referred to in Section 5.9, in each
case with respect to Securities of such series. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of such
series on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction or to revoke the same,
whether or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken on or prior
to the applicable expiration date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the relevant series
on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Issuer's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable expiration date to be given to the Issuer in writing and to each
Holder of Securities of the relevant series in the manner set forth in
Section 11.4.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer when authorized by a Board Resolution (which
Resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in
accordance with or pursuant to a Company Order) and the Trustee may from
time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of the execution thereof) for
one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another entity to the Issuer or
successive successions, and the assumption by the successor entity of
the respective covenants, agreements and obligations of the Issuer
under this Indenture or any supplemental indenture;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions or to surrender any right,
power or option conferred by this Indenture on the Issuer as its Board
of Directors and the Trustee shall consider to be for the protection
or benefit of the Holders of all or any series of Securities or
Coupons of any series (and if such covenants are to be for the benefit
of less than all series of Securities, stating that such covenants are
being added solely for the benefit of such series), and to make the
occurrence, or the occurrence and continuance, of a Default in any
such additional covenants, restrictions, conditions or provisions an
Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth;
provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may
provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such an
Event of Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the Holders of
a majority in aggregate principal amount of the Securities of such
series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make any other provisions in
regard to matters or questions under this Indenture or any
supplemental indenture as the Issuer may deem necessary or desirable,
provided, that no action under this clause (d) shall adversely affect
the interests of the Holders of the Securities or Coupons;
(e) to establish the form or terms of Securities of any series or
of the Coupons appertaining to such Securities as permitted by
Sections 2.1 and 2.3;
(f) to make any change to comply with any requirement of the
Commission in connection with the qualification of the Indenture under
the Trust Indenture Act of 1939, as amended; 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.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into
any such supplemental indenture which affects the Trustee's own rights,
duties, immunities or liabilities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions
of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of
not less than a majority in aggregate principal amount of the Securities at
the time Outstanding of any series affected by such supplemental indenture,
the Issuer, when authorized by a Board Resolution (which Resolution may
provide general terms or parameters for such action and may provide that
the specific terms of such action may be determined in accordance with or
pursuant to a Company Order) and the Trustee may, from time to time and at
any time, enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of execution thereof) for the purpose of adding, any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of such
series or of the Coupons appertaining to such Securities; provided, that no
such supplemental indenture shall (a) extend the final maturity of any
Security, or reduce the principal amount thereof, or reduce the rate (or
alter the method of computation) of interest thereon, or reduce (or alter
the method of computation) any amount payable on redemption or repayment
thereof or extend the time for payment thereof, or make the principal
thereof (including any amount in respect of original issue discount), or
interest (together with any additional amounts payable with respect to, and
pursuant to the terms of, such Security) thereon payable in any coin or
currency other than that provided in the Securities and Coupons or in
accordance with the terms thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.1 or the amount
thereof provable in bankruptcy pursuant to Section 5.2, or alter the
provisions of Section 11.11 or 11.12 or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder, in each case without the consent of the Holder of each
Security so affected, provided, no consent of any Holder of any Security
shall be necessary under this Section 8.2 to permit the Trustee and the
Issuer to execute supplemental indentures pursuant to Section 8.1(e) of
this Indenture, or (b) reduce the aforesaid percentage of principal amount
of Securities of any series the consent of the Holders of which is required
for any such supplemental indenture to less than a majority, or reduce the
percentage of Securities of such series necessary to consent to waive any
past Default under this Indenture to less than a majority, or modify any of
the provisions of this Section or Section 5.10, except to increase any such
percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Security so affected, in each case, without the consent of the Holder of
each Security so affected.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or of
Coupons appertaining to such Securities, or which modifies the rights of
Holders of Securities of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the Coupons
appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a Board
Resolution of the Issuer (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to a Company Order)
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders and
other documents, if any, required by Section 7.1 the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties, immunities
or liabilities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Issuer shall give notice thereof setting forth in general terms the
substance of such supplemental indenture, (i) to the Holders of the
Outstanding Registered Securities of each series affected thereby, by
mailing a notice thereof by first-class mail to such Holders at their
addresses as they shall appear on the security register, (ii) if any
Unregistered Securities of a series affected thereby are then Outstanding,
to the Holders thereof who have filed their names and addresses with the
Trustee for such purpose within two years preceding the giving of such
notice, by mailing a notice thereof by first-class mail to such Holders at
such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then Outstanding,
to all Holders thereof, by publication of a notice thereof at least once in
an Authorized Newspaper in the Borough of Manhattan, The City of New York
and at least once in an Authorized Newspaper in London (and, if required by
Section 3.7, at least once in an Authorized Newspaper in Luxembourg). Any
failure of the Issuer to give such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer, and
the Holders of Securities of each series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to
such modifications and amendments. and all the terms and conditions of any
such supplemental indenture shall be and be deemed to be part of the terms
and conditions of this Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject
to the provisions of Sections 6.1 and 6.2, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any such
supplemental indenture executed pursuant to this Article Eight complies
with the applicable provisions of this Indenture and that the execution of
such supplemental indenture is authorized or permitted by this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series
as to any matter provided for by such supplemental indenture or as to any
action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by
the Issuer, authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions. The Issuer covenants that
it will not merge with or into or consolidate with any Person or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of
its assets to any Person and the Issuer shall not permit any Person to
consolidate with or merge into the Issuer or sell, convey, transfer, lease
or otherwise dispose of all or substantially all of its assets to the
Issuer, unless (i) either the Issuer (in the case of a merger) shall be the
continuing corporation, or the successor corporation or the Person which
acquires by sale, conveyance, transfer, lease or disposition all or
substantially all of the assets of the Issuer (if other than the Issuer)
shall be a corporation organized under the laws of the United States of
America or any State thereof or the District of Columbia, and shall
expressly assume, by supplemental indenture, in form satisfactory to the
Trustee, executed and delivered to the Trustee by such corporation pursuant
to Article Eight hereof, all of the payment obligations of the Issuer
pursuant to this Indenture and the Securities of all series and Coupons, if
any, appertaining thereto and the due and punctual performance of every
covenant of this Indenture on the part of the Issuer to be performed or
observed; (ii) immediately after giving effect to such merger,
consolidation, sale, conveyance, transfer, lease or disposition and
treating any Debt which becomes an obligation of the Issuer as a result of
such transaction as having been incurred by the Issuer at the time of such
transaction, no Default or Event of Default shall have occurred and be
continuing.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, conveyance, transfer, lease or disposition,
and following such an assumption by the successor corporation, such
successor corporation shall succeed to and be substituted for the Issuer,
with the same effect as if it had been named herein. Except in the case of
coveyance by lease, when the successor entity assumes all obligations of
the Issuer hereunder and the procedures of Section 9.1 have been complied
with, all obligations and covenants of the Issuer hereunder or under the
Securities shall terminate.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities and Coupons appertaining thereto, if any, which previously shall
have been signed and delivered by the officers of the Issuer to the Trustee
for authentication, and any Securities together with any Coupons
appertaining thereto which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All of
the Securities so issued together with any Coupons appertaining thereto
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Securities had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance, transfer,
lease or disposition such changes in phraseology and form (but not in
substance) may be made in the Securities and Coupons thereafter to be
issued as may be appropriate.
In the event of any sale, conveyance, transfer or disposition (other
than a conveyance by way of lease) covered by this Section 9.2, the Issuer
(or any successor corporation which shall theretofore have become such in
the manner described in this Article) shall be discharged from all
obligations and covenants under this Indenture and the Securities and may
be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel
prepared in accordance with Section 11.5 as conclusive evidence that any
such consolidation, merger, sale, transfer, lease, disposition or
conveyance, and any such assumption, and any such liquidation or
dissolution complies with the applicable provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONIES
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If at any
time (a) the Issuer shall have paid or caused to be paid the principal of
and interest on all the Securities of any series Outstanding hereunder and
all unmatured Coupons appertaining thereto (other than any Securities of
such series and Coupons appertaining thereto which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.9), as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee for
cancellation all Securities of such series theretofore authenticated and
all unmatured Coupons appertaining thereto (other than any Securities and
Coupons appertaining thereto of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.9) or (c) in the case of any series of Securities
where the exact or maximum amount (including the currency of payment) of
principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (ii) below, (i) all the Securities
of such series and all unmatured Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation (x) shall have become
due and payable or (y) are by their terms to become due and payable within
one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption, and (ii) the Issuer shall have irrevocably deposited or caused
to be deposited with the Trustee as trust funds the entire amount in cash
(other than monies repaid by the Trustee or any paying agent to the Issuer
in accordance with Section 10.4), specifically pledged as security for, and
dedicated solely to the benefit of the Holders of the Securities of such
series and Coupons appertaining thereto, (x) cash in an amount, or (y) in
the case of any series of Securities the payments on which may only be made
in Dollars, direct obligations of the United States of America, backed by
its full faith and credit ("U.S. Government Obligations"), maturing as to
principal and interest at such times and in such amounts as will insure the
availability of cash not later than one day before the due date of payments
in respect of the Securities, or (z) a combination thereof, sufficient
(without investment of such cash or reinvestment of any interest or
proceeds from such U.S. Government Obligations) in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay the
principal of and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is due
and payable (whether at maturity or upon redemption (through operation of a
mandatory sinking fund or otherwise) including any redemption at the
option of the Holder); and if, in any such case, the Issuer shall also pay
or cause to be paid all other sums payable hereunder by the Issuer, all of
the Securities of such series and any Coupons appertaining thereto shall
be deemed paid and discharged and the provisions of this Indenture with
respect to such Securities and Coupons shall cease to be of further effect
(except as to (i) rights of registration of transfer, and exchange of
Securities of such series or Coupons appertaining thereto, and the Issuer's
right of optional redemption, if any, (ii) substitution of mutilated,
defaced or apparently destroyed, lost or stolen Securities or Coupons,
(iii) rights of the Holders of Securities and Coupons appertaining thereto
to receive from the property so deposited payments of principal thereof and
interest on the original stated due dates therefor (but not upon
acceleration) or the Redemption Date therefor, as the case may be and
remaining rights of Holders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations and immunities of the Trustee hereunder,
including any right to compensation, reimbursement of expenses and
indemnification under Section 6.6, (v) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable
to all or any of them and (vi) the obligations of the Issuer under Sections
3.2, 3.3 and 3.4, Article Ten and Article Twelve), and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an Opinion
of Counsel, which complies with Section 11.5, stating that the provisions
of this Section have been complied with and at the cost and expense of the
Issuer, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture; provided, that the rights of Holders of the
Securities and Coupons to receive amounts in respect of principal of and
interest on the Securities and Coupons held by them shall not be delayed
longer than required by then-applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed. In addition, in
connection with the satisfaction and discharge pursuant to clause (c)(i)(y)
above, the Trustee shall give notice to the Holders of Securities of such
satisfaction and discharge. The Issuer agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the
Securities.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 6.6 shall survive.
(B) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution of
the Issuer, Officers' Certificate or indenture supplemental hereto provided
pursuant to Section 2.3. In addition to discharge of the Indenture
pursuant to Section 10.1(A), in the case of any such series of Securities
the exact or maximum amounts (including the currency of payment) of
principal and interest due on which can be determined at the time of making
the deposit referred to in Clause 10.1(B)(x)(a) below: (x) the Issuer
shall be deemed to have paid and discharged the entire indebtedness on all
Securities of such a series and the Coupons appertaining thereto on the
91st day after the date of the deposit referred to in Clause 10.1(B)(x)(a)
below, and the provisions of this Indenture with respect to the Securities
of such series and Coupons appertaining thereto shall no longer be in
effect (except as to (i) rights of registration of transfer and exchange of
Securities of such series and Coupons appertaining thereto and the Issuer's
right of optional redemption, if any, (ii) substitution of mutilated,
defaced or apparently destroyed, lost or stolen Securities or Coupons,
(iii) rights of Holders of Securities or Coupons appertaining thereto to
receive from the property so deposited payments of principal thereof and
interest thereon on the original stated due dates therefor (but not on
acceleration) or the Redemption Date therefor, as the case may be, and
remaining rights of the Holders to receive mandatory sinking fund payments,
if any, (iv) the rights, obligations, duties and immunities of the Trustee
hereunder, including any right to compensation, reimbursement of expenses
and indemnification under Section 6.6, (v) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable
to all or any of them and (vi) the obligations of the Issuer and the rights
of the Holders of the Securities under Sections 3.2, 3.3 and 3.4, Article
Ten and Article Twelve), (hereinafter "defeasance"), and the Trustee, at
the expense of the Issuer, shall at the Issuer's request, execute proper
instruments acknowledging the same, if the Issuer notifies the Trustee that
the provisions of this Section 10.1(B) are being complied with solely to
effect a defeasance and if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series and Coupons
appertaining thereto, (i) cash in an amount, or (ii) in the case of
any series of Securities the payments on which may only be in Dollars,
U.S. Government Obligations, maturing as to principal and interest at
such times and in such amounts as will insure (without investment of
such cash or reinvestment of any interest or proceeds from such U.S.
Government Obligations) the availability of cash or (iii) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay the
principal of and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal and interest is
due and payable (whether at maturity or upon redemption (through
operation of a mandatory sinking fund or otherwise) including any
redemption at the option of the Holder, provided, that, in connection
with any such redemption at the option of the Issuer, the Issuer shall
have made arrangements satisfactory to the Trustee for the giving of
notice of redemption and, in connection with any redemption at the
option of the Holder, optional redemption of all of the Securities of
such series on such redemption date);
(b) no Default or Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 5.1(d) and (e) are concerned, at
any time during the period ending on and including the 91st day after
the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period);
(c) such defeasance shall not cause the Trustee to have a
conflicting interest for purposes of the Trust Indenture Act of 1939
with respect to any securities of the Issuer;
(d) such defeasance shall not result in a breach or violation of,
or constitute a Default under, this Indenture or any Securities of
such series or any other agreement or instrument to which the Issuer
is a party or by which it is bound;
(e) the Issuer has delivered to the Trustee an Opinion of Counsel
to the effect, and such opinion shall confirm, (i) that, based on the
fact that (x) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the
date hereof, there has been a change in the applicable federal income
tax law, in either case, Holders of the Securities of such series and
the Coupons appertaining thereto will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income tax on
the same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred; and (ii) that the trust arising from such deposit shall not
constitute an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended; and
(f) the Issuer has paid or caused to be paid all other sums then
payable hereunder by the Issuer and the Issuer has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating to the
defeasance contemplated by this provision have been complied with.
(C) The Issuer shall be released from its obligations under
Article Nine and any other covenants specified pursuant to Section 2.3 with
respect to the Securities of any series and any Coupons appertaining
thereto, other than the obligation to provide that any successor to the
Issuer, as a condition to such succession, assume the performance of any
covenant of this Indenture of the Issuer relating to the compensation,
reimbursement of expenses and indemnities of the Trustee and any
predecessor Trustee, on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the outstanding Securities
of the applicable series, the Issuer may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in
such Article or any such covenant, whether directly or indirectly by reason
of any reference elsewhere herein to such Article or any such covenant or
by reason of any reference in such Article to any other provision herein or
in any other document and such omission to comply shall not constitute an
Event of Default under Section 5.1, but the remainder of this Indenture and
such Securities and Coupons shall be unaffected thereby. The following
shall be the conditions to application of this subsection (C) of this
Section 10.1:
(a) the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
the Securities of such series and Coupons appertaining thereto, (i)
cash in an amount, or (ii) in the case of any series of Securities the
payment on which may only be made in Dollars, U.S. Government
Obligations maturing as to principal and interest at such times and in
such amounts as will insure (without investment of such cash or
reinvestment of any interest or proceeds from such U.S. Government
Obligations) the availability of cash in an amount or (iii) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay the
principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is
due and payable (whether at maturity or upon redemption (through
operation of a mandatory sinking fund or otherwise) including any
redemption at the option of the Holder, provided, that, in connection
with any such redemption at the option of the Issuer, the Issuer shall
have made arrangements satisfactory to the Trustee for the giving of
notice of redemption and, in connection with any redemption at the
option of the Holder, optional redemption of such series on such
redemption date);
(b) no Default or Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
the Securities shall have occurred and be continuing on the date of
such deposit or, insofar as subsections 5.1(d) and (e) are concerned,
at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(c) such covenant defeasance will not result in a breach or
violation of, or constitute a default under, this Indenture, or any
Securities issued hereunder or any agreement or instrument to which
the Issuer is a party or by which it is bound;
(d) such covenant defeasance shall not cause the Trustee to have
a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act of 1939;
(e) such covenant defeasance shall not cause any Securities then
listed on any registered national securities exchange to be delisted;
(f) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect (i) that the Holders of the Securities of such
series and Coupons appertaining thereto will not recognize income,
gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred; and (ii)
that the trust arising from such deposit shall not constitute an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in The Investment Company Act of
1940, as amended; and
(g) the Issuer shall have paid or caused to be paid all other
sums then payable hereunder by the Issuer and the Issuer shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the
covenant defeasance contemplated by this provision have been complied
with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4 all monies and securities deposited
with the Trustee pursuant to Section 10.1 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of
the particular Securities of such series and of Coupons appertaining
thereto for the payment or redemption of which such monies or securities
have been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such monies or securities need not
be segregated from other funds except to the extent required by law.
SECTION 10.3 Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Securities of any series or the defeasance thereof, all monies then held by
any paying agent under the provisions of this Indenture with respect to
such series shall, upon demand of the Issuer, be repaid to it or paid to
the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such monies.
SECTION 10.4 Return of Monies Held by Trustee and Paying Agent
Unclaimed for Two Years. Any monies or U.S. Government Obligations
deposited with or paid to the Trustee or any paying agent for the payment
of the principal of and interest on any Security of any series or Coupons
attached thereto and not applied but remaining unclaimed for two years
after the date upon which such principal and interest shall have become due
and payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer by the Trustee
for such series or such paying agent, and the Holder of the Securities of
such series and of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the
Trustee or any paying agent with respect to such monies shall thereupon
cease; provided, however, that the Trustee or such paying agent, before
being required to make any such repayment with respect to monies deposited
with it for any payment (a) in respect of Registered Securities of any
series, shall at the expense of the Issuer, mail by first class mail to
Holders of such Securities at their addresses as they shall appear on the
Security register, and (b) in respect of Unregistered Securities of any
series the Holders of which have filed their names and addresses with the
Trustee for such purpose within two years preceding the giving of such
notice, shall at the expense of the Issuer, mail by first class mail to
such Holders at such addresses, and (c) in respect of Unregistered
Securities of any series, shall at the expense of the Issuer cause to be
published once, in an Authorized Newspaper in the City of New York and once
in an Authorized Newspaper in London (and, if required by Section 3.7, at
least once in an Authorized Newspaper in Luxembourg) notice, that such
monies remain unpaid and that, after a date specified therein, which shall
not be less than thirty days from the date of such mailing or publication,
any unclaimed balance of such money then remaining will be repaid to the
Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 10.1 or the principal or interest received in respect
of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse shall be had for the
payment of the principal of, or interest on any Security or any Coupon
appertaining thereto, for any claim based thereon, or otherwise in respect
thereof, or based on or in respect of this Indenture or any indenture
supplement thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Issuer or any successor
corporation, either directly or through the Issuer, or any successor
corporation, whether by virtue of constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance of such Security and any Coupons
appertaining thereto and as part of the consideration for the issue
thereof, expressly waived and released.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities or in
Coupons appertaining thereto, expressed or implied, shall give or be
construed to give to any Person, other than the parties hereto and their
successors and the Holders of the Securities or Coupons, if any, any legal
or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions
being for the sole benefit of the parties hereto and their successors and
the Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. All
covenants and agreements in this Indenture by the Issuer shall bind its
successors and assigns (whether by merger, consolidation or otherwise),
whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, the Trustee and
Securityholders. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or
by the Holders of Securities or Coupons to or on the Issuer may be given or
served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of
the Issuer is filed by the Issuer with the Trustee) to Freeport-McMoRan
Copper & Gold Inc., 1615 Poydras Street, New Orleans, Louisiana 70112,
Attention: Corporate Secretary. Any notice, direction, request or demand
by the Issuer or any Securityholder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if in writing
and given or made at the Corporate Trust Office, Attention: Corporate
Trustee Administration Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder entitled thereto, at his last address as it appears
in the Security register. Where this Indenture provides for notice to
Holders of Unregistered Securities, notice shall be (i) mailed to those
Holders of Unregistered Securities who have filed their names and addresses
for this purpose with the Trustee within two preceding years of giving such
notice, with such notice being sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to each Holder entitled thereto, at his last address as it appears in such
filing and (ii) published at least once in an Authorized Newspaper in the
City of New York, and at least once in an Authorized Newspaper in London
(and, if required by Section 3.7, at least once in an Authorized Newspaper
in Luxembourg). In any case where notice to such Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon
such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall
be satisfactory to the Trustee shall be deemed to be a sufficient giving of
such notice.
SECTION 11.5 Officers' Certificate and Opinions of Counsel, Statements
to Be Contained Therein. Upon any application or demand by the Issuer to
the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need
be furnished.
Except as provided in Sections 3.5 and 12.5, each certificate or
opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the Person making such
certificate or providing such opinion has read such covenant or condition
and the definitions relating thereto, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based,
(c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that
the certificate or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know that the
same are erroneous. Any certificate, statement or opinion of counsel may
be based, insofar as it relates to factual matters, information with
respect to which is in the possession of the Issuer upon the certificate,
statement or opinion of or representations by an officer or officers of the
Issuer unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon
a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer unless such officer or counsel, as
the case may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a
statement that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for redemption
or repayment of any Security shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on
the date of maturity or the date fixed for redemption or repayment, and no
interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If any provision hereof limits, qualifies or
conflicts with the duties imposed by any of Sections 310 through 317,
inclusive, of the Trust Indenture Act of 1939 or with another provision
hereof which is required to be included by any of Section 310 through 317,
inclusive, by operation of Section 318(c) thereof, such duties and required
provision shall control except as, and to the extent, such provision is
expressly excluded from this Indenture, as permitted by the Trust Indenture
Act of 1939.
SECTION 11.8 New York Law to Govern; Separability. This Indenture and
each Security shall each be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance
with the laws of said State, except as may otherwise be required by
mandatory provisions of law.
In case any provision of this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
thereby.
SECTION 11.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU. Unless
otherwise specified in an Officers' Certificate delivered pursuant to
Section 2.3 of this Indenture with respect to a particular series of
Securities, whenever for purposes of this Indenture any action may be taken
by the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at
the time outstanding and, at such time, there are Outstanding Securities of
any series which are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such series
which shall be deemed to be Outstanding for the purpose of taking such
action shall be that amount of Dollars that could be obtained for such
amount at the Market Exchange Rate. For purposes of this Section 11.11,
Market Exchange Rate shall mean the noon Dollar buying rate in New York
City for cable transfers of that currency as published by the Federal
Reserve Bank of New York; provided, however, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission
of the European Communities (or any successor thereto) as published in the
Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall
use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York or, in the case of ECUs,
the rate of exchange as published in the Journal, as of the most recent
available date, or quotations or, in the case of ECUs, rates of exchange
from one or more major banks in The City of New York or in the country of
issue of the currency in question, which for purposes of the ECU shall be
Brussels, Belgium, or such other quotations or, in the case of ECU, rates
of exchange as the Trustee shall deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other than
Dollars in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture including without limitation any
determination contemplated in Section 5.1(f) or (g).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive to the extent permitted by law for
all purposes and irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the fullest
extent it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the
sum due in respect of the principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will
be rendered (the "Judgment Currency"), the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is
entered, unless such day is not a New York Banking Day, then, to the extent
permitted by applicable law, the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding the day on which final unap-
pealable judgment is entered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether
or not entered in accordance with subsection (a)), in any currency other
than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full
amount of the Required Currency expressed to be payable in respect of such
payments, (ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full
amount of the Required Currency so expressed to be payable and (iii) shall
not be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York or
a day on which banking institutions in The City of New York are authorized
or required by law or executive order to close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 12.2 Notice of Redemption. Notice of redemption to the
Holders of Registered Securities to be redeemed as a whole or in part at
the option of the Issuer shall be given in the manner provided in Section
11.4, at least 30 days and not more than 60 days prior to the date fixed
for redemption to such Holders of Securities. Notice of redemption to all
Holders of Unregistered Securities shall be published in an Authorized
Newspaper in the Borough of Manhattan, the City of New York and in an
Authorized Newspaper in London (and, if required by Section 3.7, in an
Authorized Newspaper in Luxembourg), in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30 nor
more than 60 days prior to the date fixed for redemption. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder receives the notice.
Failure to give notice by mail, or any defect in the notice to the Holder
of any Security of a series designated for redemption as a whole or in
part, shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the Redemption Date, the applicable Redemption Price, and, if the
Redemption Price was required to be calculated according, or pursuant to a
formula or by reference to the value or price of any one or more
commodities, currencies, indices, instruments or other securities, the
method for such calculation and the basis for such Redemption Price, the
place or places of payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Securities with Coupons
attached thereto, of all Coupons appertaining thereto maturing after the
date fixed for redemption, that such redemption is pursuant to a mandatory
or optional sinking fund, or both, if such be the case, that interest
accrued to the Redemption Date will be paid as specified in said notice and
that on and after said Redemption Date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security of a
series is to be redeemed in part only the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and shall state
that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount
equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the Redemption Date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee
or with one or more paying agents (or, if the Issuer is acting as its own
paying agent, set aside, segregate and hold in trust as provided in Section
3.4) an amount of money sufficient to redeem on the Redemption Date all the
Securities of such series to be redeemed at the appropriate Redemption
Price, together with accrued interest to the Redemption Date. The Issuer
will deliver to the Trustee at least 70 days prior to the date fixed for
redemption an Officers' Certificate stating the aggregate principal amount
of Securities to be redeemed. In case of a redemption at the election of
the Issuer prior to the expiration of any restriction on such redemption or
subject to compliance with conditions precedent, the Issuer shall deliver
to the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officers' Certificate stating that such
restriction or condition has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities
may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof. The
Trustee shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any Securities of
such series selected for partial redemption, the principal amount thereof
to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
of any series shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions
of Securities specified in such notice shall become due and payable on the
Redemption Date and at the place stated in such notice at the applicable
Redemption Price, together with interest accrued to the Redemption Date,
and on and after said Redemption Date (unless the Issuer shall default in
the payment of such Securities at the Redemption Price, together with
interest accrued to said Redemption Date) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue, and
the unmatured Coupons, if any, appertaining thereto shall be void, and such
Securities shall cease from and after the Redemption Date to be entitled to
any benefit or security under this Indenture, and the Holders thereof shall
have no right in respect of such Securities to be redeemed except the right
to receive the applicable Redemption Price thereof and unpaid interest to
the Redemption Date. On surrender of such Securities at a place of payment
specified in said notice, together with all Coupons, if any, appertaining
thereto maturing after the Redemption Date, such Securities or the
specified portions thereof shall be paid and redeemed by the Issuer at the
applicable Redemption Price, together with interest accrued thereon to the
Redemption Date; provided that any payment of interest becoming due on or
prior to the Redemption Date shall be payable in the case of Securities
with Coupons attached thereto, to the Holders of the Coupons for such
interest upon surrender thereof, and in the case of Registered Securities,
registered as such on the relevant Regular Record Date subject to the terms
and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the Redemption Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption, the surrender of such missing Coupon or
Coupons may be waived by the Issuer and the Trustee, if there be furnished
to each of them such security or indemnity as they may require to save each
of them harmless.
Upon surrender of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities for such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the Securities of
any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of
the Securities of any series is herein referred to as an "optional sinking
fund payment". The date on which a sinking fund payment is to be made is
herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of
such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuer and delivered to the Trustee
for cancellation pursuant to Section 2.10, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this
Section, or (c) receive credit for Securities of such series (not
previously so credited) redeemed by the Issuer through any optional
redemption provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (which need not contain the statements required by Section
11.5) (a) specifying the portion of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion to be satisfied by credit
of Securities of such series and the basis for such credit, (b) stating
that none of the Securities of such series to be so credited has
theretofore been so credited, (c) stating that no defaults in the payment
of interest or Events of Default with respect to such series have occurred
(which have not been waived or cured) and are continuing and (d) stating
whether or not the Issuer intends to exercise its right to make an optional
sinking fund payment with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to
pay on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be delivered to
the Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.10 to the Trustee with
such Officers' Certificate (or reasonably promptly thereafter if acceptable
to the Trustee). Such Officers' Certificate shall be irrevocable and upon
its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure
of the Issuer, on or before any such 60th day, to deliver or cause to be
delivered such Officers' Certificate and Securities (subject to the
parenthetical clause in the second preceding sentence) specified in this
paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option
to deliver or credit Securities of such series in respect thereof and (ii)
that the Issuer will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) or a lesser sum in Dollars (or the equivalent thereof in any Foreign
Currency or ECU) if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price together with accrued
interest to the date fixed for redemption. If such amount shall be $50,000
(or the equivalent thereof in any Foreign Currency or ECU) or less and the
Issuer makes no such request then it shall be carried over until a sum in
excess of $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) is available. The Trustee shall select, in the manner provided in
Section 12.2 and subject to the limitations in Section 12.4, for redemption
on such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may be
practicable, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect
provided in Section 12.3) for the redemption of Securities of such series
in part at the option of the Issuer. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of
such series shall be added to the next cash sinking fund payment for such
series and, together with such payment, shall be applied in accordance with
the provisions of this Section. Any and all sinking fund monies held on
the stated maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be
applied, together with other monies, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund monies or give any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of
any Event of Default except that, where the giving of notice of redemption
of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any monies in the sinking fund for such series at the time when
any such default or Event of Default shall occur, and any monies thereafter
paid into the sinking fund, shall, during the continuance of such default
or Event of Default, be deemed to have been collected under Article Five
and held for the payment of all such Securities. In case such Event of
Default shall have been waived as provided in Section 5.10 or the default
cured on or before the sixtieth day preceding the sinking fund payment date
in any year, such monies shall thereafter be applied on the next succeeding
sinking fund payment date in accordance with this Section to the redemption
of such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of November ___, 1996.
FREEPORT-McMoRan Copper & Gold Inc.
By:
---------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
-----------------------------
Name:
Title:
The Chase Manhattan Bank, as Trustee
By:
-----------------------------------
Name:
Title:
[CORPORATE SEAL OF TRUSTEE]
Attest:
By:
-----------------------------
Name:
Title:
STATE OF LOUISIANA
PARISH OF ORLEANS
On this _____ day of November, 1996 before me personally came
_________________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at ______________; that he is a
______________________ of Freeport-McMoRan Copper & Gold Inc., one of the
corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
[NOTARIAL SEAL]
______________________________
Notary Public
STATE OF NEW YORK
COUNTY OF NEW YORK
On this _____ day of November, 1996, before me personally came
_______________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at _________________; that he is a
_____________ of The Chase Manhattan Bank, 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