FREEPORT-McMoRAN COPPER & GOLD INC., Issuer
and
The Chase Manhattan Bank, Trustee
SENIOR
INDENTURE
Dated as of November 15, 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 2.10Cancellation of Securities;
Disposition Thereof 18
SECTION 2.11Temporary Securities 18
ARTICLE THREE - COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest 19
SECTION 3.2 Offices for Payments, etc. 20
SECTION 3.3 Appointment to Fill a Vacancy in
Office of Trustee 21
SECTION 3.4 Paying Agents 21
SECTION 3.5 Written Statement to Trustee 22
SECTION 3.6 Corporate Existence 22
SECTION 3.7 Luxembourg Publications 22
ARTICLE FOUR - SECURITYHOLDERS' LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee
Information as to Names and
Addresses of Securityholders 22
SECTION 4.2 Preservation and Disclosure of
Securityholders' Lists 23
SECTION 4.3 Reports by the Issuer 23
SECTION 4.4 Reports by the Trustee 23
ARTICLE FIVE - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined;
Acceleration of Maturity; Waiver of
Default 24
SECTION 5.2 Collection of Debt by Trustee;
Trustee May Prove Debt 27
SECTION 5.3 Application of Proceeds 28
SECTION 5.4 Suits for Enforcement 29
SECTION 5.5 Restoration of Rights on Abandonment
of Proceedings 29
SECTION 5.6 Limitations on Suits by
Securityholders 30
SECTION 5.7 Unconditional Right of
Securityholders to Institute Certain
Suits 30
SECTION 5.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default 30
SECTION 5.9 Control by Securityholders 31
SECTION 5.10Waiver of Past Defaults 31
SECTION 5.11Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances 32
SECTION 5.12Right of Court to Require Filing of
Undertaking to Pay Costs 32
ARTICLE SIX - CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior to
Default 32
SECTION 6.2 Certain Rights of the Trustee 33
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof 34
SECTION 6.4 Trustee and Agents May Hold
Securities or Coupons; Collections,
etc. 35
SECTION 6.5 Monies Held by Trustee 35
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim 35
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. 36
SECTION 6.8 Persons Eligible for Appointment as
Trustee 36
SECTION 6.9 Resignation and Removal; Appointment
of Successor Trustee;
Conflicting Interests 36
SECTION 6.10Acceptance of Appointment by
Successor Trustee 38
SECTION 6.11Merger, Conversion, Consolidation or
Succession to Business of Trustee 39
SECTION 6.12Preferential Collection of Claims
Against the Issuer 39
SECTION 6.13Appointment of Authenticating Agent 39
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders 40
SECTION 7.2 Proof of Execution of Instruments and
of Holding of Securities 40
SECTION 7.3 Holders to be Treated as Owners 41
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding 42
SECTION 7.5 Right of Revocation of Action Taken 42
SECTION 7.6 Record Date for Consents and Waivers 42
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without
Consent of Securityholders 43
SECTION 8.2 Supplemental Indentures With Consent
of Securityholders 44
SECTION 8.3 Effect of Supplemental Indenture 46
SECTION 8.4 Documents to Be Given to Trustee 46
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures 46
ARTICLE NINE - CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge,
Consolidate, Sell or Convey Property
Except Under Certain Conditions 46
SECTION 9.2 Successor Corporation Substituted 47
SECTION 9.3 Opinion of Counsel to Trustee 47
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED
MONIES
SECTION 10.1Satisfaction and Discharge of
Indenture 48
SECTION 10.2Application by Trustee of Funds
Deposited for Payment of Securities 52
SECTION 10.3Repayment of Monies Held by Paying
Agent 52
SECTION 10.4Return of Monies Held by Trustee and
Paying Agent Unclaimed for Two Years 52
SECTION 10.5Indemnity for U.S. Government
Obligations 53
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability 53
SECTION 11.2Provisions of Indenture for the Sole
Benefit of Parties and
Securityholders 53
SECTION 11.3Successors and Assigns of Issuer
Bound by Indenture 53
SECTION 11.4Notices and Demands on Issuer, the
Trustee and Securityholders 53
SECTION 11.5Officers' Certificates and Opinions
of Counsel, Statements to Be
Contained Therein 54
SECTION 11.6Payments Due on Saturdays, Sundays
and Legal Holidays 55
SECTION 11.7Conflict of Any Provision of
Indenture with Trust Indenture Act of
1939 55
SECTION 11.8New York Law to Govern; Separability 55
SECTION 11.9Counterparts 55
SECTION 11.10 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 12.1Application of Article 57
SECTION 12.2Notice of Redemption 57
SECTION 12.3Payment of Securities Called for
Redemption 58
SECTION 12.4Mandatory and Optional Sinking Funds 59
TESTIMONIUM 62
SIGNATURES AND SEALS 62
ACKNOWLEDGMENTS 63
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended, and the
Indenture to be dated as of November 15, 1996 between Freeport-
McMoRan Copper & Gold Inc. and The Chase Manhattan Bank, as
Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5) 6.8
310(a)(3) and (4) Inapplicable
310(b) 6.9(a), (b) and (d)
310(c) Inapplicable
311(a) and (b) 6.12
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(b)
312(c) 4.2(c)
313(a) 4.4(a)
313(a)(5) 4.4(b)
313(b) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 3.5 and 4.3
314(b) Inapplicable
314(c) 11.5
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.11
315(e) 5.12
316(a)(1) 5.9
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.7
316(c) 7.6
317(a) 5.2
317(b) 3.4
318(a) 11.7
*This Cross Reference Sheet is not part of the Indenture.
THIS INDENTURE, dated as of November 15, 1996, by and
between Freeport-McMoRan Copper & Gold Inc. (the "Issuer"), a
Delaware corporation, and The Chase Manhattan Bank, a New York
corporation, as trustee (the "Trustee"),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time
to time of its unsecured debentures, notes or other evidences of
indebtedness to be issued in one or more series (the
"Securities") up to such principal amount or amounts as may from
time to time be authorized by the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for
the authentication, delivery and administration of the
Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement of the Issuer according to its terms,
have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the Holders thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate
benefit of the respective Holders from time to time of the
Securities and of the Coupons, if any appertaining thereto, as
follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context
otherwise clearly requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the
respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture
Act of 1939 or are defined in the Securities Act and referred to
in the Trust Indenture Act of 1939 (except as herein otherwise
expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in the Trust
Indenture Act of 1939 and in the Securities Act as in force at
the date of this Indenture. All accounting terms used herein and
not expressly defined shall have the meanings given to them in
accordance with generally accepted accounting principles, and the
term "generally accepted accounting principles" shall mean
generally accepted accounting principles in the United States
which are in effect on the date or time of any determination.
The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms
defined in this Article include the plural as well as the
singular.
"Authenticating Agent" shall have the meaning set forth
in Section 6.13.
"Authorized Newspaper" means a newspaper (which, in the
case of The City of New York, will, if practicable, be The Wall
Street Journal (Eastern Edition), in the case of London, will, if
practicable, be the Financial Times (London Edition) and, in the
case of Luxembourg, will, if practicable, be the Luxemburger
Wort) published in an official language of the country of
publication customarily published at least once a day for at
least five days in each calendar week and of general circulation
in the City of New York, London or Luxembourg as applicable. If
it shall be impractical in the opinion of the Trustee to make any
publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which
is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"Authorized Signatory" means any of the chairman of the
Board of Directors, the president, any vice president (whether or
not designated by a number or numbers or a word or words added
before or after the title "Vice President"), the treasurer or any
assistant treasurer or the secretary or any assistant secretary
of any Person.
"Board of Directors" of any Person means the Board of
Directors of such Person or any committee of such Board duly
formed and authorized to act on its behalf.
"Board Resolution" of any Person means a copy of one or
more resolutions, certified by the secretary or an assistant
secretary of such Person to have been duly adopted or consented
to by the Board of Directors of such Person and to be in full
force and effect, and delivered to the Trustee.
"Business Day" means, with respect to a Security, a day
that in the city (or in any cities, if more than one) in which
amounts are payable, as specified in the form of such Security,
which is not a day on which banking institutions and trust
companies are authorized by law or regulation or executive order
to close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or if at any time after the execution and delivery
of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, the
body performing such duties on such date.
"Company Order" means a written statement, request or
order of the Issuer which is signed in the Issuer's name by the
chairman of the Board of Directors, the president, any executive
vice president, any senior vice president or any vice president
of the Issuer.
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered, which
office is, at the date as of which this Indenture is dated,
located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Coupon" means any interest coupon appertaining to a
Security.
"Debt" shall have the meaning set forth in Section 5.1.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Defeasance" shall have the meaning set forth in
Section 10.1.
"Depositary" means, with respect to the Securities of
any series issuable or issued in whole or in part in the form of
one or more Registered Global Securities, the Person designated
as the Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one
such Person, "Depositary" as used with respect to the Securities
of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series; provided that any
Person that is a Depositary hereunder must be a clearing agency
registered under the Exchange Act and any other applicable
statute or regulation.
"Dollar" means the coin or currency of the United
States of America as at the time of payment is legal tender for
the payment of public and private debts.
"ECU" means The European Currency Unit as defined and
revised from time to time by the Council of European Communities.
"Event of Default" means any event or condition
specified as such in Section 5.1.
"Exchange Act" means the Securities and Exchange Act of
1934, as amended.
"Foreign Currency" means a currency issued by the
government of a country other than the United States.
"guarantee" means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any
indebtedness of any Person and any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase
or pay (or advance or supply funds for the purchase or payment
of) such indebtedness of such Person (whether arising by virtue
of partnership arrangements, or by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or
(ii) entered into for purposes of assuring in any other manner
the obligee of such indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "guarantee" shall not
include endorsements for collection or deposit in the ordinary
course of business. The term "guarantee" used as a verb has a
corresponding meaning.
"Holder", "Holder of Securities", "Securityholder" or
other similar terms mean (a) in the case of any Registered
Security, the Person in whose name such Security is registered in
the Security register kept by the Issuer for that purpose in
accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indenture" means this instrument as originally
executed and delivered or, if amended or supplemented as herein
provided, as so amended or supplemented or both, and shall
include the forms and terms of particular series of Securities
established as contemplated hereunder.
"Insolvency Law" means any applicable bankruptcy,
insolvency, reorganization or similar law in any applicable
jurisdiction.
"Interest" means, when used with respect to non-
interest bearing Securities, interest payable after maturity.
"Interest Payment Date" when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Issuer" means Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation, and, subject to Article Nine, its
successors and assigns.
"Judgment Currency" shall have the meaning set forth in
Section 11.12.
"Officers' Certificate" means a certificate signed by
the chairman of the board or the president or any vice president
(whether or not designated by a number or numbers or a word or
words added before or after the title "Vice President") and by
the treasurer or any assistant treasurer or the secretary or any
assistant secretary of the Issuer and delivered to the Trustee.
Each such certificate shall include the statements provided for
in Section 11.5, if and to the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed
by legal counsel, who may be an employee of or counsel to the
Issuer or such other legal counsel who may be satisfactory to the
Trustee. Each such opinion shall include the statements provided
for in Section 11.5, if and to the extent required hereby.
"original issue date" of any Security (or portion
thereof) means the earlier of (a) the Issue Date of such Security
or (b) the Issue Date of any Security (or portion thereof) for
which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution. For purposes
of this definition, "Issue Date" means, with respect to a
Security, the date of original issuance thereof.
"Original Issue Discount Security" means any Security
that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
of the maturity thereof pursuant to Section 5.1.
"Outstanding", when used with reference to Securities
of any series issued hereunder, shall, subject to the provisions
of Section 7.4, mean, as of any particular time, all Securities
of such series authenticated and delivered by the Trustee under
this Indenture, except:
(a) Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(b) Securities (other than Securities of any series
as to which the provisions of Article 10 hereof shall not be
applicable), or portions thereof, for the payment or
redemption of which monies or U.S. Government Obligations
(as provided for in Section 10.1) in the necessary amount
shall have been deposited in trust with the Trustee or with
any paying agent (other than the Issuer) or shall have been
set aside, segregated and held in trust by the Issuer (if
the Issuer shall act as its own paying agent), provided that
if such Securities, or portions thereto, are to be redeemed
prior to the Stated Maturity thereof, notice of such
redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made
for giving such notice; and
(c) Securities which shall have been paid or in
substitution for which other Securities shall have been
authenticated and delivered, pursuant to the terms of
Section 2.9 (unless proof satisfactory to the Trustee is
presented that any of such Securities is held by a Person in
whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"Periodic Offering" means an offering of Securities of
a series from time to time, the specific terms of which
Securities, including, without limitation, the rate or rates of
interest, if any, thereon, the Stated Maturity or maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon
the issuance of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, association, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"principal" whenever used with reference to the
Securities of any series or any portion thereof, shall be deemed
to include "and premium, if any".
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"Registered Global Security" means a Security
evidencing all or a part of a series of Registered Securities,
issued to the Depositary for such series in accordance with
Section 2.4, and bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security registered on
the Security register of the Issuer, which Security shall be
without Coupons.
"Regular Record Date" for interest payable on any
Interest Payment Date on the Registered Securities of any series
means the date specified for that purpose as contemplated by
Section 2.3, or if no such date is established, if such Interest
Payment Date is the first day of a calendar month, the fifteenth
day of the next preceding calendar month or, if such Interest
Payment Date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such Regular Record
Date is a Business Day.
"Required Currency" shall have the meaning set forth in
Section 11.12.
"Responsible Officer", when used with respect to the
Trustee means any officer in the Corporate Trustee Administration
Department (or any successor group) of the Trustee, including any
vice president, assistant vice president, senior trust officer,
trust officer, secretary or any assistant secretary or any other
officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons
who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred at the Corporate Trust
Office because of his knowledge of and familiarity with the
particular subject.
"SEC Reports" shall have the meaning set forth in
Section 4.3.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security" or "Securities" has the meaning stated in
the first recital of this Indenture and more particularly means
any Securities of any series, authenticated and delivered under
this Indenture.
"Security Registrar" means the Trustee or any successor
Security Registrar appointed by the Issuer.
"Stated Maturity" means, with respect to any Security,
the date specified in such Security as the fixed date on which
the principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such security at the
option of the Holder thereof upon the happening of any
contingency unless such contingency has occurred) and with
respect to any installment of interest upon such Security, the
date specified in such Security, or Coupon appertaining thereto,
if applicable as the fixed date on which such installment of
interest is due and payable.
"Trust Indenture Act of 1939" (except as otherwise
provided in Sections 8.1 and 8.2) means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was
originally executed.
"Trustee" means the Person identified as "Trustee" in
the first paragraph hereof and, subject to the provisions of
Article Six, shall also include any successor trustee. "Trustee"
shall also mean or include each person who is then a trustee
hereunder and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such
series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning
set forth in Section 10.1(A).
"Yield to Maturity" means the yield to maturity on a
series of Securities, calculated at the time of the issuance of
such series, or, if applicable, at the most recent
redetermination of interest on such series, and calculated in
accordance with generally accepted financial practice.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, issued hereunder shall be substantially
in such form and bear such legends (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more
Board Resolutions of the Issuer (as set forth in a Board
Resolution of the Issuer or, to the extent established pursuant
to rather than set forth in a Board Resolution of the Issuer, an
Officers' Certificate of the Issuer detailing such establishment)
or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture
and may have imprinted or otherwise reproduced thereon such
legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with
any law or with any rules or regulations pursuant thereto, or
with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers of the
Issuer executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons, if
any. If temporary Securities are issued as permitted by Section
2.11, the form thereof also shall be established as provided in
the preceding sentence.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons, if
any.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
"This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
Trustee
By:
Authorized Officer
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, the
Securities of such series may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternate
certificate of authentication in substantially the following
form:
"This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, Trustee
By:
As Authenticating Agent
By:
Authorized Officer
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each
such series shall rank equally and pari passu with all other
unsecured and unsubordinated Debt of the Issuer. There shall be
established in or pursuant to one or more Board Resolutions of
the Issuer (and to the extent established pursuant to rather than
set forth in a Board Resolution, in an Officers' Certificate
detailing such establishment) or in one or more indentures
supplemental hereto, prior to the initial issuance of Securities
of any series,
(1) the designation of the Securities of the series,
which shall distinguish the Securities of the series from
the Securities of all other series;
(2) any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in
which the Securities of that series are denominated
(including, but not limited to, any Foreign Currency or
ECU);
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from
which such interest shall accrue, the Interest Payment Date
on which any such interest shall be payable and (in the case
of Registered Securities) the Regular Record Date for any
interest payable on any Interest Payment Date and/or the
method by which such rate or rates or Regular Record Date or
Dates shall be computed or determined;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if
other than as provided in Section 3.2);
(7) the right, if any, of the Issuer or any Holder to
redeem or cause to be redeemed Securities of the series, in
whole or in part, at its option and the period or periods
within which, the price or prices at which, and the manner
in which (if different from the provisions of Article Twelve
hereof), and any terms and conditions upon which Securities
of the series may be so redeemed, pursuant to any sinking
fund or otherwise and/or the method by which such price or
prices shall be determined;
(8) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series, in whole or in
part, pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof
and the price or prices (and/or the method by which such
price or prices shall be determined) at which and the period
or periods within which and the manner in which (if
different from the provisions of Article Twelve hereof)
Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof in the case of Registered
Securities, or $1,000 and $5,000 in the case of Unregistered
Securities, the denominations in which Securities of the
series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series
which shall be payable upon declaration of acceleration of
the maturity thereof;
(11) if other than the coin or currency in which the
Securities of that series are denominated, the coin or
currency in which payment of the principal of or interest on
the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities
of such series are to be payable, at the election of the
Issuer or a Holder thereof, in a coin or currency other than
that in which the Securities are denominated, the period or
periods within which, and the terms and conditions upon
which, such election may be made and the manner in which the
exchange rate with respect to such payments shall be
determined;
(13) if the amount of payments of principal of and/or
interest on the Securities of the series may be determined
with reference to the value or price of any one or more
commodities, currencies or indices, the manner in which such
amounts will be determined;
(14) whether the Securities of the series will be
issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities
and, if so, the Depositary therefor and the form of any
legend in addition or in lieu of that provided in Section
2.4 to be borne by such Registered Global Security) or
Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions and
procedures applicable to the offer, sale or delivery of
Unregistered Securities or the payment of interest thereon,
if other than as provided in Section 2.8, and the terms upon
which Unregistered Securities of any series may be exchanged
for Registered Securities of such series and vice versa if
other than provided in Section 2.8;
(15) whether and under what circumstances the Issuer
will pay additional amounts on the Securities of the series
to Holders or certain Holders thereof in respect of any tax,
assessment or governmental charge withheld or deducted and,
if so, whether the Issuer will have the option to redeem
such Securities rather than pay such additional amounts (and
the terms of any such option);
(16) if the Securities of such series are to be
issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security of such series) only
upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(17) any trustees, depositaries authenticating or
paying agents, transfer agents or registrars or any other
agents with respect to the Securities of such series;
(18) provisions, if any, granting specific rights to
the Holders of Securities of such series upon the occurrence
of such events as may be specified;
(19) any deletions from, modifications of or additions
to the Events of Default or covenants set forth herein
(including any defined terms relating thereto);
(20) the term and condition upon which and the manner
in which Securities of the series may be defeased or
defeasible if different from the provisions of Article Ten;
(21) whether the Securities will be issued as global
Securities and, if other than as provided in Section 2.8,
the terms upon which such global Securities may be exchanged
for definitive Securities;
(22) offices at which presentation and demands may be
made and notices be served, if other than the Corporate
Trust Office; and
(23) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons appertaining
thereto, if any, shall be substantially identical, except in the
case of Registered Securities as to denomination and except as
may otherwise be provided by or pursuant to the Board Resolution
or Officers' Certificate referred to above or as set forth in any
such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution, such Officers'
Certificate or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. Upon
the execution and delivery of this Indenture, or from time to
time thereafter, Securities, including Coupons appertaining
thereto, if any, may be executed by the Issuer and delivered to
the Trustee for authentication together with the applicable
documents referred to below in this section, and the Trustee
shall thereupon authenticate and deliver such Securities and
Coupons appertaining thereto, if any, to or upon the order of the
Issuer (contained in the Company Order referred to below in this
section) or pursuant to such procedures acceptable to the Trustee
and to such recipients as may be specified from time to time by a
Company Order, without any further action by the Issuer. The
maturity date, original issue date, interest rate and any other
terms of the Securities of such series and Coupons, if any,
appertaining thereto shall be determined by or pursuant to such
Company Order or procedures authorized by such Company Order. If
provided for in such procedures, such Company Order may authorize
authentication and delivery of Securities pursuant to oral
instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In
authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in the case
of subparagraphs 2, 3 and 4 below only at or before the time of
the first request of the Issuer to the Trustee to authenticate
Securities of such series) and (subject to Section 6.1) shall be
fully protected in relying upon, unless and until such documents
have been superseded or revoked:
(1) a Company Order requesting such authentication and
setting forth delivery instructions if the Securities and
Coupons, if any, are not to be delivered to the Issuer,
provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Company Order may
be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal
amount not exceeding the aggregate principal amount
established for such series, pursuant to a Company Order or
pursuant to procedures acceptable to the Trustee as may be
specified from time to time by such Company Order, (c) the
maturity date or dates, original issue date or dates or
interest rate or rates and any other terms of Securities of
such series shall be determined by a Company Order or
pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication
and delivery of Securities pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or
agents, which oral or electronic instructions shall be
promptly confirmed in writing, and (e) after the original
issuance of the first Security of such series to be issued,
any separate request by the Issuer that the Trustee
authenticate Securities of such series for original issuance
will be deemed to be a certification by the Issuer that it
is in compliance with all conditions precedent provided for
in this Indenture relating to the authentication and
delivery of such Securities;
(2) any Board Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Sections 2.1
and 2.3 by or pursuant to which the forms and terms of the
Securities and Coupons, if any, were established;
(3) an Officers' Certificate setting forth the form or
forms and terms of the Securities and stating that the form
or forms and terms of the Securities and Coupons, if any,
have been established pursuant to Sections 2.1 and 2.3 and
comply with this Indenture, and covering such other matters
as the Trustee may reasonably request; and
(4) At the option of the Issuer, either an Opinion of
Counsel of the Issuer, or a letter addressed to the Trustee
permitting it to rely on an Opinion of Counsel of the
Issuer, substantially to the effect that:
(a) the forms of the Securities and Coupons,
if any, have been duly authorized and established in
conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the
terms of the Securities have been duly authorized and
established in conformity with the provisions of this
Indenture, and, in the case of a Periodic Offering,
certain terms of the Securities have been established
pursuant to a Board Resolution of the Issuer, an
Officers' Certificate or a supplemental indenture in
accordance with this Indenture, and when such other
terms as are to be established pursuant to procedures
set forth in a Company Order shall have been
established, all such terms will have been duly
authorized by the Issuer and will have been established
in conformity with the provisions of this Indenture;
(c) when the Securities and Coupons, if any,
have been executed by the Issuer and authenticated by
the Trustee in accordance with the provisions of this
Indenture and delivered to and duly paid for by the pur
chasers thereof, they will have been duly issued under
this Indenture and will be valid and legally binding
obligations of the Issuer, enforceable in accordance
with their respective terms, and will be entitled to
the benefits of this Indenture; and
(d) the execution and delivery by the Issuer
of, and the performance by the Issuer of its
obligations under the Securities and the Coupons, if
any, will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of
the Issuer or 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 dis
position thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption, repurchase or payment shall (if
so required by the Issuer or the Trustee) be duly endorsed by, or
be accompanied by a written instrument or instruments of transfer
in form satisfactory to the Issuer and the Trustee, duly executed
by the Holder or his attorney duly authorized in writing.
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,
destroyed, lost or stolen, or in exchange for the Security to
which a mutilated, defaced, destroyed, lost or stolen Coupon
appertained with Coupons appertaining thereto corresponding to
the Coupons so mutilated, defaced, destroyed, lost or stolen. In
every case the applicant for a substitute Security or Coupon
shall furnish to the Issuer and to the Trustee and any agent of
the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them
harmless and, in every case of apparent destruction, loss or
theft, evidence to their satisfaction of the apparent
destruction, loss or theft of such Security or Coupon and of the
ownership thereof. In the case of a mutilated or defaced
Security or Coupon, the applicant for a substitute Security or
Coupon shall surrender such mutilated or defaced Security or
Coupon to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses
of the Trustee or its agent) connected therewith. In case any
Security or Coupon which has matured or is about to mature or has
been called for redemption in full shall become mutilated or
defaced or be apparently destroyed, lost or stolen, the Issuer
may, instead of issuing a substitute Security or Coupon, pay or
authorize the payment of the same or the relevant Coupon (without
surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the
Issuer or the Trustee such security or indemnity as any of them
may require to save each of them harmless from all risks, however
remote, arising as a result of such payment and, in every case of
apparent destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer
or the Trustee evidence to their satisfaction of the apparent
destruction, loss or theft of such Security and of the ownership
thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact
that any such Security or Coupon is apparently destroyed, lost or
stolen shall constitute an additional contractual obligation of
the Issuer, whether or not the apparently destroyed, lost or
stolen Security or Coupon shall be at any time enforceable by
anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and
delivered hereunder. All Securities or Coupons shall be held and
owned upon the express condition that, to the extent permitted by
law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, defaced, or apparently
destroyed, lost or stolen Securities and Coupon and shall
preclude any and all other rights or remedies notwithstanding any
law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition
Thereof. All Securities and Coupons surrendered for payment,
repurchase, redemption, registration of transfer or exchange, or
for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuer or any agent of the
Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or its agent for cancellation or, if
surrendered to the Trustee, shall be cancelled by it; and no
Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The
Trustee or its agent shall dispose of cancelled Securities and
Coupons held by it and deliver a certificate of disposition to
the Issuer unless the Issuer shall direct that cancelled
Securities be returned to it. If the Issuer shall acquire any of
the Securities or Coupons, such acquisition shall not operate as
a redemption or satisfaction of the indebtedness represented by
such Securities or Coupons unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation
of definitive Securities for any series, the Issuer may execute
and the Trustee shall authenticate and deliver temporary
Securities for such series (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the
Trustee). Temporary Securities of any series shall be issuable
as Registered Securities without Coupons, or as Unregistered
Securities with or without Coupons attached thereto, of any
authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions,
insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the
concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the
Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay
the Issuer shall execute and shall furnish definitive Securities
of such series and thereupon temporary Registered Securities of
such series may be surrendered in exchange therefor without
charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer
for such purpose as specified pursuant to Section 3.2, and the
Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal
amount of definitive Securities of the same series having
authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons.
Until so exchanged, the temporary Securities of any series shall
be entitled to the same benefits under this Indenture as defini
tive Securities of such series, unless otherwise established
pursuant to Section 2.3. The provisions of this Section are
subject to any restrictions or limitations on the issue and
delivery of temporary Unregistered Securities of any series that
may be established pursuant to Section 2.3 (including any
provision that Unregistered Securities of such series initially
be issued in the form of a single global Unregistered Security to
be delivered to a depositary or agency located outside the United
States and the procedures pursuant to which definitive or global
Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities
issued hereunder that it will duly and punctually pay or cause to
be paid the principal of and interest on, each of the Securities
of such series (together with any additional amounts payable with
respect to and pursuant to the terms of such Securities) at the
place or places, at the respective times and in the manner
provided in the Securities of such series and in the Coupons, if
any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional
amounts payable with respect to such Securities) shall be payable
only upon presentation and surrender of the several Coupons for
such interest installments as are evidenced thereby as they
severally mature. If any temporary Unregistered Security
provides that interest thereon may be paid while such Security is
in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts
payable with respect to such Security) shall be paid, as to the
installments of interest evidenced by Coupons attached thereto,
if any, only upon presentation of such Securities for notation
thereon of the payment of such interest, in each case subject to
any restrictions that may be established pursuant to Section 2.3.
The interest on Registered Securities (together with any
additional amounts payable with respect to such Securities )
shall be payable only to or upon the written order of the Holders
thereof entitled thereto and, at the option of the Issuer, may be
paid by wire transfer (subject to the procedures of the paying
agent) or by mailing checks for such interest payable to or upon
the written order of such Holders at their last addresses as they
appear on the registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any
Registered Securities are authorized for issuance pursuant to
this Indenture or remain Outstanding, the Issuer will maintain in
the Borough of Manhattan, The City of New York, an office or
agency where the Registered Securities of each series may be
surrendered for payment and where the Registered Securities of
each series may be surrendered for registration of transfer or
exchange as is provided in this Indenture.
The Issuer will maintain one or more offices or agencies in
a city or cities located outside the United States (including any
city in which such an office or agency is required to be
maintained under the rules of any stock exchange on which the
Securities of such series are listed) where the Unregistered
Securities, if any, of each series and Coupons, if any,
appertaining thereto may be surrendered for payment or exchange.
No payment on or exchange of any Unregistered Security or Coupon
will be made upon surrender of such Unregistered Security or
Coupon at an office or agency of the Issuer within the United
States nor will any payment be made by transfer to an account in,
or by mail to an address in, the United States unless pursuant to
applicable United States laws and regulations then in effect such
payment can be made without adverse tax consequences to the
Issuer. Notwithstanding the foregoing, payments in Dollars of
Unregistered Securities of any series and Coupons appertaining
thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in The City of New York if such payment in
Dollars at each agency maintained by the Issuer outside the
United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other
similar restrictions.
The Issuer will maintain in the Borough of Manhattan, the
City of New York, an office or agency where notices and demands
to or upon the Issuer in respect of the Securities of any series,
the Coupons appertaining thereto, or this Indenture may be
served.
The Issuer will give to the Trustee prompt written notice of
the location of any such office or agency and of any change of
location thereof. The Issuer hereby initially designates the
Corporate Trust Office of the Trustee maintained in the City of
New York as the office or agency for each such purpose to be
carried out in New York. The Issuer shall designate an office or
agency outside the United States for each such purpose relating
to Unregistered Securities prior to the issuance of any
Unregistered Securities. In case the Issuer shall fail to
maintain any such office or agency or shall fail to provide such
notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served
at the Corporate Trust Office.
The Issuer will cause to be kept a register at the office of
the Security Registrar in which, subject to such reasonable
regulations as it may prescribe, the Issuer will provide for the
registration of Securities and of transfers of Securities. The
Trustee is hereby initially appointed Security Registrar for the
purpose of registering Securities and transferring Securities as
herein provided.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of any series
and any Coupons appertaining thereto may be presented for
payment, where the Securities of that series may be presented for
exchange as provided in this Indenture and pursuant to Section
2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture
provided, and the Issuer may from time to time rescind any such
designation, as the Issuer may deem desirable or expedient;
provided, however, that no such designation or rescission shall
in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in the first three paragraphs of this
Section 3.2. The Issuer will give to the Trustee prompt written
notice of any such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.9, a Trustee, so that there shall at all
times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall
appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such
agent for the payment of the principal of or interest on the
Securities of such series (whether such sums have been paid
to it by the Issuer or by any other obligor on the
Securities of such series) in trust for the benefit of the
Holders of the Securities of such series or of the Trustee;
(b) that it will give the Trustee notice of any
failure by the Issuer (or by any other obligor on the
Securities of such series) to make any payment of the
principal of or interest on the Securities of such series
when the same shall be due and payable;
(c) that it will, at any time during the continuance
of any such failure, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and
(d) that it will in all respects comply with the
provisions of the Trust Indenture Act of 1939 applicable to
such paying agent.
The Issuer will, on or prior to each due date of the
principal of or interest on the Securities of such series,
deposit with the paying agent a sum sufficient to pay such
principal or interest so becoming due, such sum to be held as
provided in the Trust Indenture Act of 1939, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the
Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due
date of the principal of or interest on the Securities of such
series, set aside, segregate and hold in trust for the benefit of
the Holders of the Securities of such series or the Coupons
appertaining thereto a sum sufficient to pay such principal or
interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. The Issuer
will promptly notify the Trustee of any failure to take such
action.
Anything in this Section to the contrary notwithstanding,
but subject to Section 10.1, the Issuer may at any time, for the
purpose of obtaining a satisfaction and discharge with respect to
one or more or all series of Securities hereunder or with respect
to this Indenture or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for any such series by
the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section
is subject to the provisions of Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will
deliver to the Trustee on or before March 31 in each year
(beginning with March 31, 1997) a brief certificate (which need
not comply with Section 11.5) from the Issuer, signed by its
principal executive officer, principal financial officer, or
principal accounting officer, stating that in the course of the
performance by the signer of his duties as an officer of the
Issuer, he would normally have knowledge of any Default or non-
compliance by the Issuer in the performance or fulfillment of any
covenant, agreement or condition of the Issuer, contained in this
Indenture, stating whether or not he has knowledge of any such
Default or non-compliance and, if so, specifying each such
Default or non-compliance of which the signer has knowledge and
the nature thereof.
SECTION 3.6 Corporate Existence. Subject to Article Nine,
the Issuer will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence, rights and franchises; provided that the Issuer shall
not be required to preserve any such right or franchise if the
Issuer shall determine that the preservation thereof is no longer
desirable in the conduct of its business and that the loss
thereof is not disadvantageous in any material respect to the
Holders of any series of Securities.
SECTION 3.7 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.9, 6.10,
8.2, 10.4, 12.2 or 12.4, the party making such publication in the
City of New York and London shall also, to the extent that notice
is required to be given to Holders of Securities of any series by
applicable Luxembourg law or stock exchange regulation, as
evidenced by any Officers' Certificate delivered to such party,
make a similar publication in Luxembourg.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND
REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders. The Issuer and any other
obligor on the Securities each covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such
form as the Trustee may reasonably require of the names and
addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each
Regular Record Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any
such request as of a date not more than 15 days prior to the
time such information is furnished,
provided that if and so long as the Trustee shall be the Security
Registrar for such series and all of the Securities of any series
are Registered Securities, such list shall not be required to be
furnished for such series.
SECTION 4.2 Preservation and Disclosure of Securityholders'
Lists.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the names and
addresses of the Holders of each series of Securities (i)
contained in the most recent list furnished to the Trustee as
provided in Section 4.1, (ii) received by the Trustee in its
capacity as Security Registrar for such series, if so acting, and
(iii) filed with it within two preceding years pursuant to
Section 313(c)(2) of the Trust Indenture Act of 1939. The
Trustee may destroy any list furnished to it as provided in
Section 4.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or
under any series of the Securities, and the corresponding rights
and duties of the Trustee, shall be as provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that
none of the Issuer, the Trustee or any agent of any of the Issuer
or the Trustee shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act of 1939.
SECTION 4.3 Reports by the Issuer. The Issuer shall file
with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act
of 1939 at the times and in the manner provided pursuant to such
Act, provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13
or 15(d) of the Exchange Act ("SEC Reports") shall be filed with
the Trustee within 15 days after the same is so required to be
filed with the Commission.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days
after May 15 of each year, commencing with the first May 15
following the first issuance of Securities pursuant to Section
2.4, if required by Section 313(a) of the Trust Indenture Act of
1939, the Trustee shall transmit, pursuant to Section 313(c) of
the Trust Indenture Act of 1939, a brief report dated as of such
May 15 with respect to any of the events specified in said
Section 313(a) which may have occurred since the later of the
immediately preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act and Section 5.11 hereof
at the times specified therein.
(c) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by Section
313(c) of the Trust Indenture Act of 1939.
(d) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which the Securities of any series are
listed, with the Commission and with the Issuer. The Issuer will
promptly notify the Trustee when the Securities of any series are
listed on any stock exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default," with respect to
Securities of any series wherever used herein, means one of the
following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any installment of
interest upon any of the Securities of such series or any
Coupon appertaining thereto (together with any additional
amounts payable with respect to such Securities) as and when
the same shall become due and payable, and continuance of
such default for a period of 30 days; or
(b) default in the payment of all or any part of the
principal of any of the Securities of such series as and
when the same shall become due and payable either at their
Stated Maturity, upon any redemption by declaration or
otherwise; provided that, if such default is the result of
an optional redemption by the Holders of such Securities,
the amount thereof shall be in excess of $50,000,000 or the
equivalent thereof in any currency or composite currency; or
(c) failure on the part of the Issuer duly to comply
with, observe or perform any of the other covenants or
agreements on the part of the Issuer contained in, or
provisions of, the Securities of any series or this
Indenture (other than a covenant or agreement which is not
applicable to the Securities of such series), but only if
such default shall not have been remedied for a period of 60
days after the date on which written notice specifying such
failure, stating that such notice is a "Notice of Default"
hereunder and demanding that the Issuer remedy the same,
shall have been given by registered or certified mail,
return receipt requested, to the Issuer by the Trustee, or
to the Issuer and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities
of such series of Securities; or
(d) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Issuer in an involuntary case or proceeding under any
applicable Insolvency Law or (B) a decree or order adjudging
the Issuer a bankrupt or insolvent under an applicable
Insolvency Law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Issuer or of any substantial part of the
property of the Issuer or ordering the winding up or
liquidation of the affairs of the Issuer and the continuance
of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60
consecutive days; or
(e) the commencement by the Issuer of a voluntary case
or proceeding under any applicable Insolvency Law or of any
other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Issuer to the entry of a
decree or order for relief in respect of the Issuer in an
involuntary case or proceeding under any applicable
Insolvency Law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Issuer or the
filing by the Issuer of a petition, answer or consent
seeking reorganization or relief under any applicable
Insolvency Law, or the consent by the Issuer to the filing
of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Issuer or
of any substantial part of the property of the Issuer or the
making by the Issuer of an assignment for the benefit of
creditors, or the admission by the Issuer in writing of its
inability to pay its debts generally as they become due, or
the taking of corporate action (which shall involve the
passing of one or more Board Resolutions by the Issuer) in
furtherance of any such action,
(f) failure by the Issuer to make any payment at
maturity (or upon any redemption), including any applicable
grace period, in respect of indebtedness, which term as used
herein means obligations (other than the Securities of such
series or nonrecourse obligations) of, or guaranteed or
assumed by, the Issuer for borrowed money or evidenced by
bonds, debentures, notes or other similar instruments
("Debt") in an amount in excess of $50,000,000 or the
equivalent thereof in any other currency or composite
currency and such failure shall have continued for a period
of thirty days after written notice thereof shall have been
given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or to the Issuer
and the Trustee by the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of
such series affected thereby;
(g) a default with respect to any Debt, which default
results in the acceleration of Debt in an amount in excess
of $50,000,000 or the equivalent thereof in any other
currency or composite currency without such Debt having been
discharged or such acceleration having been cured, waived,
rescinded or annulled for a period of thirty days after
written notice thereof shall have been given by registered
or certified mail, return receipt requested, to the Issuer
by the Trustee, or to the Issuer and the Trustee by the
Holders of not less than 25% in aggregate principal amount
of the Outstanding Securities of such series affected
thereby; or
(h) any other Event of Default provided for with
respect to Securities of that series in the supplemental
indenture under which such series is issued or in the terms
of Securities of such series;
provided that if any such failure, default or acceleration
referred to in clauses (f), (g) and (h) shall cease or be cured,
waived, rescinded or annulled, then the Event of Default
hereunder by reason thereof, and any acceleration under this
Section 5.1 resulting solely therefrom, shall be deemed likewise
to have been thereupon cured, waived, rescinded or annulled
without further action on the part of either the Trustee or any
of the Securityholders.
If an Event of Default (other than those specified in
Section 5.1(d) or (e)) with respect to less than all series of
Securities then Outstanding occurs and is continuing, then, and
in each and every such case, except for any series of Securities
the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of each such
affected series then Outstanding hereunder (voting as a single
class) by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or,
if the Securities of any such affected series are Original Issue
Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all Securities of
all such affected series, and the interest accrued thereon, if
any (together with any additional amounts payable with respect to
such Securities), to be due and payable immediately, and upon any
such declaration, the same shall become immediately due and
payable. If an Event of Default (other than those specified in
Section 5.1(d) or (e)) with respect to all series of Securities
then Outstanding, occurs and is continuing, then and in each and
every such case, unless the principal of all the Securities shall
have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of all
the Securities then Outstanding hereunder (treated as one class),
by notice in writing to the Issuer (and to the Trustee if given
by Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of all
the Securities then Outstanding, and interest accrued thereon, if
any (together with any additional amounts payable with respect to
such Securities) to be due and payable immediately, and upon any
such declaration the same shall become immediately due and
payable. If an Event of Default specified in Section 5.1(d) or
(e) occurs, the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal
as may be specified in terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, (together with
any additional amounts payable with respect to such Securities)
shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any
Securityholder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the
Securities of such series are Original Issue Discount Securities,
such portion of the principal as may be specified in the terms
thereof) of the Securities of any series shall have been so
declared due and payable, and before any judgment or decree for
the payment of the monies due shall have been obtained or entered
as hereinafter provided, the Issuer shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments
of interest (together with any additional amounts payable with
respect to such Securities) upon all the Securities of such
series and the principal of any and all Securities of each such
series which shall have become due otherwise than by acceleration
(with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on
overdue installments of interest, (together with any additional
amounts payable with respect to such Securities) at the same rate
as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities
of each such series (or the respective rates of interest or
Yields to Maturity of all the Securities, as the case may be, to
the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee and
each predecessor Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and if any and all Events of
Default under the Indenture, other than the non-payment of the
principal of Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied
as provided herein -- then and in every such case the Holders of
a majority in aggregate principal amount of all the Securities of
each such series or of all the Securities, as the case may be, in
each case voting as a single class, then Outstanding, by written
notice to the Issuer and the Trustee, may waive all defaults with
respect to such series and rescind and annul such declaration and
its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have
been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless
such declaration has been rescinded and annulled, the principal
amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, together with accrued interest, if any, thereon and
all other amounts owing thereunder, shall constitute payment in
full of such Original Issue Discount Securities.
SECTION 5.2 Collection of Debt by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case Default shall be
made in the payment of any installment of interest on any of the
Securities of any series when such interest shall have become due
and payable and such Default shall have continued for a period of
30 days or (b) in case Default shall be made in the payment of
all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether
upon the Stated Maturity of the Securities of such series or
upon any redemption or by declaration or otherwise, other than a
Default that is the result of an optional redemption by the
Holders of Securities of any series, the amount of which is not
in excess of $50,000,000 or the equivalent thereof in any
currency or composite currency, unless such Default shall have
continued for a period of 60 days after giving a notice with
respect thereto under Section 5.1(c), then upon demand of the
Trustee, the Issuer will pay to the Trustee for the benefit of
the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all such
Securities of such series, and such Coupons, if any, for
principal, or interest, as the case may be (with interest to the
date of such payment upon the overdue principal and, to the
extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities
of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except
as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to
the Holders, whether or not the principal of and interest on
Securities of such series be overdue.
If an Event of Default occurs and is continuing, the
Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or
proceedings at law or in equity to protect and enforce its rights
and the rights of the Holders by such appropriate judicial
proceeding as the Trustee may deem most effectual to protect and
enforce any such rights, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor
upon the Securities of such series and collect in the manner
provided by law out of the property of the Issuer or any other
obligor upon the Securities of such series, wherever situated the
monies adjudged or decreed to be payable.
In the case of any judicial proceeding relating to the
Issuer or any other obligor upon the Securities of such series,
or the property or creditors of the Issuer or any such obligor,
the Trustee shall be entitled and empowered, by intervention in
such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act of 1939 in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In addition, unless prohibited by applicable law and
regulations, the Trustee shall be entitled and empowered to vote
on behalf of the Holders of Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceeding or a Person providing similar functions in comparable
proceedings.
The Trustee shall be authorized to collect and receive any
monies or other property payable or deliverable on any such
claims, and to distribute all amounts received with respect to
the claims of the Securityholders and of the Trustee on their
behalf, and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the
event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation
to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad
faith and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any such
proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or
Coupons appertaining to such series, may be prosecuted and
enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such series
or the production thereof on any trial or other proceedings
relative thereto, and any such action or proceedings instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements, advances and compensation
of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the
Holders of the Securities of such series or Coupons appertaining
thereto in respect of which action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the Holders of the Securities or
Coupons appertaining to such Securities in respect of which such
action was taken, and it shall not be necessary to make any
Holders of such Securities or Coupons appertaining to such
Securities, parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any monies collected
by the Trustee pursuant to this Article in respect of any series
shall be applied in the following order at the date or dates
fixed by the Trustee and, in case of the distribution of such
monies on account of principal or interest, upon presentation of
the several Securities and Coupons appertaining thereto in
respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of
the same series, of like tenor, in reduced principal amounts in
exchange for the presented Securities of like series if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable
to the Securities of such series in respect of which monies
have been collected, including any and all amounts due the
Trustee under Section 6.6;
SECOND: In case the principal of the Securities of
such series in respect of which monies have been collected
shall not have become and be then due and payable, to the
payment of interest on the Securities of such series in
default in the order of the maturity of the installments of
such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such
payments to be made ratably to the Persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Securities of such
series in respect of which monies have been collected shall
have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all
the Securities of such series for principal and interest,
with interest upon the overdue principal; and (to the extent
that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the
Securities of such series; and in case such monies shall be
insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the
payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over
principal, or of any installment of interest over any other
installment of interest, or of any Security of such series
over any other Security of such series ratably to the
aggregate of such principal and accrued and unpaid interest
or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to
the Issuer or any other Person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the
Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee or any Securityholder shall
have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or
to such Securityholder, then and in every such case, subject to
any determination in such proceeding, the Issuer, the Trustee and
the Securityholders shall be restored severally and respectively
to their former positions and rights hereunder, and thereafter
all rights, remedies and powers of the Issuer, the Trustee and
the Securityholders shall continue as though no such proceedings
had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series or of any Coupon
appertaining thereto shall have any right by virtue or by
availing of any provision of this Indenture to institute any
action or proceeding, judicial or otherwise, at law or in equity
or in bankruptcy or otherwise upon or under or with respect to
this Indenture, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other
remedy hereunder, unless (i) such Holder previously shall have
given to the Trustee written notice of a continuing Event of
Default as hereinbefore provided, (ii) the Holders of not less
than 25% in aggregate principal amount of the Securities of such
affected series then Outstanding, treated as a single class,
shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder
and shall have offered to the Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to
be incurred therein or thereby; (iii) the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity
shall have failed to institute any such action or proceedings;
and (iv) no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 5.9; it
being understood and intended, and being expressly covenanted by
the Holder of every Security or Coupon with every other Holder of
the Securities of such series or Coupons and the Trustee, that no
one or more Holders of Securities of such series shall have any
right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the
rights of any other Holder of Securities or Coupons appertaining
to such Securities, or to obtain or seek to obtain priority over
or preference to any other such Holder or to enforce any right
under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of
Securities of the applicable series and Coupons appertaining to
such Securities. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the
Trustee shall be entitled to such relief as can be given either
at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in
this Indenture and any provision of any Security, the right of
any Holder of any Security or Coupon to receive payment of the
principal of and interest on (together with any additional
amounts payable with respect to and pursuant to the terms of such
Securities) such Security or Coupon and any interest in respect
of a Default in the payment of any such amounts, on or after the
respective due dates expressed in such Security or Coupon or
Redemption Dates provided for therein or to institute suit for
the enforcement of any such payment rights on or after such
respective dates shall not be impaired or affected without the
consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section
2.9 and 5.6, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or Coupons is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any
of the Securities or Coupons to exercise any right or power
accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power
and remedy given by this Indenture or by law to the Trustee or to
the Holders of Securities or Coupons may be exercised from time
to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders of Securities or Coupons.
SECTION 5.9 Control by Securityholders. The Holders of a
majority in aggregate principal amount of the Securities of any
series affected at the time Outstanding shall have the right to
direct the time, method, and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee by this Indenture with respect
to or for the benefit of such Securities of such series; provided
that such direction shall not be otherwise than in accordance
with applicable law and the provisions of this Indenture and
provided further that (subject to the provisions of Section 6. 1)
the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not be
lawfully taken or that the action or proceeding so directed may
expose the Trustee to personal liability or if the Trustee in
good faith by its board of directors or the executive committee
thereof shall so determine that the actions or forbearances
specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all
series so affected not joining in the giving of said direction,
it being understood that (subject to Section 6.1) the Trustee
shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction by
Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Securities
of any series as provided in Section 5.1, the Holders of a
majority in aggregate principal amount of the Securities of any
series at the time Outstanding with respect to which an Event of
Default shall have occurred and be continuing may on behalf of
the Holders of all the Securities of such series waive any past
Default or Event of Default hereunder with respect to the
Securities of such series and its consequences, except a Default
(a) in the payment of principal or interest on any Security of
such series or (b) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the
Holder of each Security affected.
Upon any such waiver, such Default shall cease to exist and
be deemed to have been cured and not to have occurred, and any
Event of Default arising therefrom shall be deemed to have been
cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent
thereon. In the case of any such waiver, the Issuer, the Trustee
and the Holders of all such Securities shall be restored to their
former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within
ninety days after the occurrence of a default with respect to the
Securities of any series, give notice of all defaults with
respect to that series known to the Trustee (i) if any
Unregistered Securities of that series are then Outstanding, to
the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and at least once in an Authorized Newspaper in London (and,
if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of
such affected series in the manner and to the extent provided in
Section 4.4(c), unless such defaults shall have been cured before
the mailing or publication of such notice (the term "default" or
"defaults" for the purposes of this Section 5.11 being hereby
defined to mean any event or condition which is, or with notice
or lapse of time or both would become, an Event of Default);
provided that, except in the case of default in the payment of
the principal of or interest on any of the Securities of such
series, or in the payment of any sinking or purchase fund
installment on such series, the Trustee shall be protected in
withholding such notice if and so long as the Board of Directors,
the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the
interests of the Securityholders.
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by
any party litigant in such suit other than the Trustee of an
undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such
suit including the Trustee, having due regard to the merits and
good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Securityholder or group of Securityholders of any series holding
in the aggregate more than 10% in aggregate principal amount of
the Securities of such series Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the
payment of the principal of or interest on any Security on or
after the due date expressed in such Security or any date fixed
for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of
any series of Securities issued hereunder, the Trustee, prior to
the occurrence of an Event of Default with respect to the
Securities of a particular series, and after the curing or
waiving of all Events of Default which may have occurred with
respect to such series, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture.
In case an Event of Default with respect to the Securities of a
particular series has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care
and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except
that
(a) prior to the occurrence of an Event of Default
with respect to the Securities of any series and after the
curing or waiving of all such Events of Default with respect
to such series which may have occurred:
(i) the duties and obligations of the
Trustee with respect to the Securities of any series shall
be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of Holders pursuant to
Section 5.9 relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
there shall be reasonable ground for believing that the repayment
of such funds or adequate indemnity from the Issuer against such
liability is not reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to
Section 6.1:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
Officers' Certificate or any other certificate, statement,
instrument, opinion, report, notice, request, direction.
consent, order, bond, debenture, note, coupon, security or
other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the
Issuer mentioned herein shall be sufficiently evidenced by
an Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed), and any Board
Resolution of the Issuer may be evidenced to the Trustee by
a copy thereof certified by the secretary or assistant
secretary of the Issuer;
(c) the Trustee may consult with counsel and any
written advice or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it
hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
Indenture at the request, order or direction of any of the
Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and believed
by it to be authorized or within the discretion, rights or
powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of
Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected;
provided that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such
examination shall be paid by the Issuer or, if paid by the
Trustee or any predecessor trustee, shall be repaid by the
Issuer upon demand; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys not regularly
in its employ and the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Issuer and the Trustee assumes no
responsibility for the correctness of the same. The Trustee
makes no representation as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Issuer of any of
the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc, The Trustee or any agent of the Issuer
or the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities or Coupons with the
same rights it would have if it were not the Trustee or such
agent and, subject to Section 6.12 and Section 310(b) of the
Trust Indenture Act of 1939 may otherwise deal with the Issuer
and receive, collect, hold and retain collections from the Issuer
with the same rights it would have if it were not the Trustee or
such agent.
SECTION 6.5 Monies Held by Trustee. Subject to the
provisions of Section 10.4 hereof, all monies received by the
Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need
not be segregated from other funds except to the extent required
by mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability
for interest on any monies received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel
and of all agents and other Persons not regularly in its employ)
except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to
hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder,
including but not limited to the costs and expenses of defending
itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers
or duties hereunder. The obligations of the Issuer under this
Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of
principal of or interest on particular Securities or Coupons, and
the Securities are hereby subordinated to such senior claim.
Without prejudice to any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders
services in connection with an Event of Default specified in
Section 5.1 or in connection with Article Five hereof, the
expenses (including the reasonable fees and expenses of its
counsel) and the compensation for the services in connection
therewith are intended to constitute expenses of administration
under any bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in
the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 6.8 Persons Eligible for Appointment as Trustee ;
Conflict Interests. The Trustee for each series of Securities
hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any
State or the District of Columbia having a combined capital and
surplus of at least $50,000,000, and which is authorized under
such laws to exercise corporate trust powers and is subject to
supervision or examination by Federal, State or District of
Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. At no time shall the Trustee be an
obligor, or directly or indirectly, control, be controlled by, or
under the common control with any obligor upon any Securities
issued hereunder. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.9.
The provisions of this Section 6.8 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act of 1939, the
Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the
provisions of the Trust Indenture Act of 1939 and this Indenture.
To the extent permitted by such Act, the Trustee shall not be
deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Securities of more
than one series or a trustee under the Indenture dated as of
April 15, 1994, among P. T. ALatief Freeport Finance Company B.
V., as issuer, Freeport-McMoRan Copper & Gold Inc., as guarantor,
and The Chase Manhattan Bank (formerly known as Chemical Bank),
as Trustee.
SECTION 6.9 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with respect to one
or more or all series of Securities by giving written notice of
resignation to the Issuer. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor
trustee or trustees with respect to the applicable series by
written instrument in duplicate, executed by authority of the
Board of Directors of the Issuer, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall
have been so appointed with respect to any series and have
accepted appointment within 30 days after the giving of such
notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has been a bona fide
Holder of a Security or Securities of the applicable series for
at least six months may, subject to the provisions of Section
5.12, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall
occur:
(i) the Trustee shall fail to comply with
the provisions of Section 310(b) of the Trust Indenture Act
of 1939 with respect to any series of Securities after
written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security
or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.8 or Section
310(a) of the Trust Indenture Act of 1939 and shall fail to
resign after written request therefor by the Issuer or by
any such Securityholder; or
(iii) the Trustee shall become incapable of
acting with respect to any series of Securities, or shall be
adjudged a bankrupt or insolvent, or a receiver or
liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a
successor trustee for such series by written instrument, in
duplicate, executed by order of the Board of Directors of the
Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 5.12, any Securityholder who
has been a bona fide Holder of a Security or Securities for at
least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
trustee with respect to such series. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal
amount of the Securities of each series at the time outstanding
may at any time remove the Trustee with respect to such series
and appoint a successor trustee with respect to such series by
delivering to the Trustee so removed, to the successor trustee so
appointed and to the Issuer the evidence provided for in Section
7. 1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with
respect to any series and any appointment of a successor trustee
with respect to such series pursuant to any of the provisions of
this Section 6.9 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.10.
(e) The Issuer shall give notice of each resignation
and each removal of the Trustee of each series of Securities by
mailing written notice of such an event by first-class mail,
postage prepaid, to the Holders of Registered Securities of such
series as their names and addresses appear in the Security
register. If any Unregistered Securities of a series affected
are then Outstanding, notice of such resignation shall be given
to the Holders thereof, (i) by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, the City of New
York, and at least once in an Authorized Newspaper in London
(and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) by mailing notice to those
Holders of Unregistered Securities who have furnished their names
and addresses to the Trustee for such purpose within the two
years preceding the giving of such notice.
SECTION 6.10 Acceptance of Appointment by Successor
Trustee. Any successor trustee appointed as provided in Section
6.9 shall execute and deliver to the Issuer and to its
predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, duties and obligations of
its predecessor hereunder with respect to such series, with like
effect as if originally named as trustee for such series
hereunder; but, nevertheless, on the written request of the
Issuer or of the successor trustee, upon payment of its charges
then unpaid, the trustee ceasing to act shall, subject to Section
10.4, pay over to the successor trustee all monies at the time
held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee
ceasing to act as such shall, nevertheless, retain a prior claim
upon all property or funds held or collected by it to secure any
amounts then due to it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the
predecessor Trustee and each successor trustee with respect to
the Securities of any applicable series shall execute and deliver
an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which
the predecessor Trustee is not retiring shall continue to be
vested in the predecessor Trustee, and shall add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of
Securities shall accept appointment as provided in this Section
6. 10 unless at the time of such acceptance such successor
trustee shall be qualified under the provisions of Section 310(b)
of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 6.8 and Section 310(a) of the Trust
Indenture Act of 1939.
Upon acceptance of appointment by a successor trustee for a
series of Securities as provided in this Section 6. 10, the
Issuer shall (i) mail notice thereof by first-class mail to the
Holders of Registered Securities of such series at their last
addresses as they shall appear in the Security register, or (ii)
in the case of Holders of Unregistered Securities of such series,
publish such notice once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York, and at least once in
an Authorized Newspaper in London (and, if required by Section
3.7, at least once in an Authorized Newspaper in Luxembourg) and
mail such notice to those Holders of Unregistered Securities of
such series who have filed their names and addresses with the
Trustee for such purpose within two years preceding the giving of
such notice. Each such notice shall include the name of the
successor trustee for such series and the address of its
Corporate Trust Office. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with
the notice called for by Section 6.9. If the Issuer fails to
provide such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall
cause such notice to be provided at the expense of the Issuer.
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business of Trustee. Any corporation into which
the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section
310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 6.8 and Section 310(a) of the Trust
Indenture Act of 1939, without the execution or filing of any
paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the
Securities of any series shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that
time any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in
the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right
to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Securities of any series in the name
of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
SECTION 6.12 Preferential Collection of Claims Against the
Issuer. If and when the Trustee shall be or become a creditor of
the Issuer (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust Indenture
Act of 1939 regarding the collection of claims against the Issuer
(or any such other obligor).
SECTION 6.13 Appointment of Authenticating Agent. As long
as any Securities of a series remain Outstanding, the Trustee
may, by an instrument in writing, appoint with the approval of
the Issuer an authenticating agent (the "Authenticating Agent")
which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon exchange, registration of
transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee. Whenever reference is made in
this Indenture to the authentication and delivery of Securities
of any series by the Trustee or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent for such series and a Certificate of
Authentication executed on behalf of the Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the
laws of the United States of America or of any State, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $5,000,000 (determined
as provided in Section 6.9 with respect to the Trustee) and
subject to supervision or examination by Federal or State
authority.
Any corporation into which any Authenticating Agent may be
merged or converted, or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of
any paper or any further act on the part of the Trustee or such
Authenticating Agent. Any Authenticating Agent may at any time,
and if it shall cease to be eligible shall, resign by giving
written notice of resignation to the Trustee and to the Issuer.
The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice thereof to the
Authenticating Agent and to the Issuer. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.13 with respect
to one or more series of Securities, the Trustee may upon receipt
of a Company Order appoint a successor Authenticating Agent and
the Issuer shall provide notice of such appointment to all
Holders of Securities of such series in the manner and to the
extent provided in Section 11.4. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally
named as Authenticating Agent. The Issuer agrees to pay to the
Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any
series shall have no responsibility or liability for any action
taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and, as agent of the Trustee, 7.3
shall be applicable to any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee. Proof of execution
of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this
Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.1 and 6.2, the execution of
any instrument by a Securityholder or his agent or proxy may be
proved in the following manner:
(a) The fact and date of the execution by any Holder
or his agent or proxy of any instrument, or the authority of
such an agent or proxy to execute such instrument, may be
proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the Person
executing such 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;
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to
the requirements of Section 6.10; and
(h) to provide for uncertificated Securities in
addition to certificated Securities, so long as such
uncertificated Securities are in registered form for United
States federal income tax purposes.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder, but
the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights,
duties, immunities or liabilities under this Indenture or
otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders
of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article Seven) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of any series affected by such supplemental
indenture, the Issuer, when authorized by a Board Resolution
(which Resolution may provide general terms or parameters for
such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to a
Company Order) and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act
of 1939 as in force at the date of execution thereof) for the
purpose of adding, any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights
of the Holders of the Securities of such series or of the Coupons
appertaining to such Securities; provided, that no such
supplemental indenture shall (a) change the final maturity of any
Security or change the time for payment of any installment of
interest thereon, or reduce the principal amount thereof, or
reduce the rate (or alter the method of computation) of interest
thereon, or reduce (or alter the method of computation) any
amount payable on redemption or repayment thereof or change the
time for payment thereof, or make the principal thereof
(including any amount in respect of original issue discount), or
interest (together with any additional amounts payable with
respect to, and pursuant to the terms of, such Security) thereon
payable in any coin or currency other than that provided in the
Securities and Coupons or in accordance with the terms thereof,
or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.1 or
the amount thereof provable in bankruptcy pursuant to Section
5.2, or alter the provisions of Section 11.11 or 11.12 or impair
or affect the right of any Securityholder to institute suit for
the payment thereof or, if the Securities provide therefor, any
right of repayment at the option of the Securityholder, in each
case without the consent of the Holder of each Security so
affected, provided, no consent of any Holder of any Security
shall be necessary under this Section 8.2 to permit the Trustee
and the Issuer to execute supplemental indentures pursuant to
Section 8.1(e) of this Indenture, or (b) reduce the aforesaid
percentage of principal amount of Securities of any series the
consent of the Holders of which is required for any such
supplemental indenture to less than a majority, or reduce the
percentage of Securities of such series necessary to consent to
waive any past Default under this Indenture to less than a
majority, or modify any of the provisions of this Section or
Section 5.10, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Security so affected, in each case, without the consent of the
Holder of each Security so affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or of Coupons appertaining to such
Securities, or which modifies the rights of Holders of Securities
of such series with respect to such covenant or provision, shall
be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series or of the Coupons
appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a
Board Resolution of the Issuer (which resolution may provide
general terms or parameters for such action and may provide that
the specific terms of such action may be determined in accordance
with or pursuant to a Company Order) authorizing the execution of
any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders and other
documents, if any, required by Section 7.1 the Trustee shall join
with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own
rights, duties, immunities or liabilities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee
of any supplemental indenture pursuant to the provisions of this
Section, the Issuer shall give notice thereof setting forth in
general terms the substance of such supplemental indenture, (i)
to the Holders of the Outstanding Registered Securities of each
series affected thereby, by mailing a notice thereof by first-
class mail to such Holders at their addresses as they shall
appear on the security register, (ii) if any Unregistered
Securities of a series affected thereby are then Outstanding, to
the Holders thereof who have filed their names and addresses with
the Trustee for such purpose within two years preceding the
giving of such notice, by mailing a notice thereof by first-class
mail to such Holders at such addresses as were so 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 conveyance by way of
lease, when the successor entity assumes all obligations of the
Issuer hereunder and the provisions of Section 9.1 have been
complied with, all obligations and covenants of the Issuer
hereunder or under the Securities shall terminate.
Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Issuer prior
to such succession any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the
Issuer and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Issuer, and subject to all
the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any
Securities and Coupons appertaining thereto, if any, which
previously shall have been signed and delivered by the officers
of the Issuer to the Trustee for authentication, and any
Securities together with any Coupons appertaining thereto which
such successor corporation thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All of the
Securities so issued together with any Coupons appertaining
thereto shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale, conveyance,
transfer, lease or disposition such changes in phraseology and
form (but not in substance) may be made in the Securities and
Coupons thereafter to be issued as may be appropriate.
In the event of any sale, conveyance, transfer or
disposition (other than a conveyance by way of lease) covered by
this Section 9.2, the Issuer (or any successor corporation which
shall theretofore have become such in the manner described in
this Article) shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be
liquidated and dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Opinion of Counsel prepared in accordance with Section 11.5 as
conclusive evidence that any such consolidation, merger, sale,
transfer, lease, disposition or conveyance, and any such
assumption, and any such liquidation or dissolution complies with
the applicable provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONIES
SECTION 10.1 Satisfaction and Discharge of Indenture. (A)
If at any time (a) the Issuer shall have paid or caused to be
paid the principal of and interest on all the Securities of any
series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than any Securities of such series
and Coupons appertaining thereto which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as
provided in Section 2.9), as and when the same shall have become
due and payable, or (b) the Issuer shall have delivered to the
Trustee for cancellation all Securities of such series
theretofore authenticated and all unmatured Coupons appertaining
thereto (other than any Securities and Coupons appertaining
thereto of such series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in
Section 2.9) or (c) in the case of any series of Securities where
the exact or maximum amount (including the currency of payment)
of principal of and interest due on which can be determined at
the time of making the deposit referred to in clause (ii) below,
(i) all the Securities of such series and all unmatured Coupons
appertaining thereto not theretofore delivered to the Trustee for
cancellation (x) shall have become due and payable or (y) are by
their terms to become due and payable within one year or are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption, and (ii) the Issuer shall have irrevocably deposited
or caused to be deposited with the Trustee as trust funds the
entire amount in cash (other than monies repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4),
specifically pledged as security for, and dedicated solely to the
benefit of the Holders of the Securities of such series and
Coupons appertaining thereto, (x) cash in an amount, or (y) in
the case of any series of Securities the payments on which may
only be made in Dollars, direct obligations of the United States
of America, backed by its full faith and credit ("U.S. Government
Obligations"), maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash
not later than one day before the due date of payments in respect
of the Securities, or (z) a combination thereof, sufficient
(without investment of such cash or reinvestment of any interest
or proceeds from such U.S. Government Obligations) in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay the principal of and interest on all Securities
of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable (whether at
maturity or upon redemption (through operation of a mandatory
sinking fund or otherwise) including any redemption or repayment
at the option of the Holder); and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer, all of the Securities of such series and
any Coupons appertaining thereto shall be deemed paid and
discharged and the provisions of this Indenture with respect to
such Securities and Coupons shall cease to be of further effect
(except as to (i) rights of registration of transfer, and
exchange of Securities of such series or Coupons appertaining
thereto, the Issuer's right of optional redemption, if any, and
the Holder's right to redemption or repayment at its option, if
any, (ii) substitution of mutilated, defaced or apparently
destroyed, lost or stolen Securities or Coupons, (iii) rights of
the Holders of Securities and Coupons appertaining thereto to
receive from the property so deposited payments of principal
thereof and interest on the original stated due dates therefor
(but not upon acceleration) or the Redemption Date or repayment
date therefor, as the case may be and remaining rights of
Holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations and immunities of the Trustee hereunder,
including any right to compensation, reimbursement of expenses
and indemnification under Section 6.6, (v) the rights of the
Holders of Securities of such series and Coupons appertaining
thereto as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them and (vi)
the obligations of the Issuer under Sections 3.2, 3.3 and 3.4,
Article Ten and Article Twelve), and the Trustee, on demand of
the Issuer accompanied by an Officers' Certificate and an Opinion
of Counsel, which complies with Section 11.5, stating that the
provisions of this Section have been complied with and at the
cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this
Indenture; provided, that the rights of Holders of the Securities
and Coupons to receive amounts in respect of principal of and
interest on the Securities and Coupons held by them shall not be
delayed longer than required by then-applicable mandatory rules
or policies of any securities exchange upon which the Securities
are listed. In addition, in connection with the satisfaction and
discharge pursuant to clause (c)(i)(y) above, the Trustee shall
give notice to the Holders of Securities of such satisfaction and
discharge. The Issuer agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred and
to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this
Indenture or the Securities.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer to the Trustee under
Section 6.6 shall survive.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided
in a Board Resolution of the Issuer, Officers' Certificate or
indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to Section
10.1(A), in the case of any such series of Securities the exact
or maximum amounts (including the currency of payment) of
principal and interest due on which can be determined at the time
of making the deposit referred to in Clause 10.1(B)(x)(a) below:
(x) the Issuer shall be deemed to have paid and discharged the
entire indebtedness on all Securities of such a series and the
Coupons appertaining thereto on the 91st day after the date of
the deposit referred to in Clause 10.1(B)(x)(a) below, and the
provisions of this Indenture with respect to the Securities of
such series and Coupons appertaining thereto shall no longer be
in effect (except as to (i) rights of registration of transfer
and exchange of Securities of such series and Coupons
appertaining thereto, the Issuer's right of optional redemption,
if any, and the Holder's right to redemption or repayment at its
option, if any, (ii) substitution of mutilated, defaced or
apparently destroyed, lost or stolen Securities or Coupons, (iii)
rights of Holders of Securities or Coupons appertaining thereto
to receive from the property so deposited payments of principal
thereof and interest thereon on the original stated due dates
therefor (but not on acceleration) or the Redemption Date or
repayment date therefor, as the case may be, and remaining rights
of the Holders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations, duties and immunities of the
Trustee hereunder, including any right to compensation,
reimbursement of expenses and indemnification under Section 6.6,
(v) the rights of the Holders of Securities of such series and
Coupons appertaining thereto as beneficiaries hereof with respect
to the property so deposited with the Trustee payable to all or
any of them and (vi) the obligations of the Issuer and the rights
of the Holders of the Securities under Sections 3.2, 3.3 and 3.4,
Article Ten and Article Twelve), (hereinafter "defeasance"), and
the Trustee, at the expense of the Issuer, shall at the Issuer's
request, execute proper instruments acknowledging the same, if
the Issuer notifies the Trustee that the provisions of this
Section 10.1(B) are being complied with solely to effect a
defeasance and if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series and Coupons
appertaining thereto, (i) cash in an amount, or (ii) in the
case of any series of Securities the payments on which may
only be in Dollars, U.S. Government Obligations, maturing as
to principal and interest at such times and in such amounts
as will insure (without investment of such cash or
reinvestment of any interest or proceeds from such U.S.
Government Obligations) the availability of cash or (iii) a
combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to
the Trustee, to pay the principal of and interest on all
Securities of such series and Coupons appertaining thereto
on each date that such principal and interest is due and
payable (whether at maturity or upon redemption (through
operation of a mandatory sinking fund or otherwise,
including any redemption or repayment at the option of the
Holder), provided, that, in connection with any such
redemption at the option of the Issuer, the Issuer shall
have made arrangements satisfactory to the Trustee for the
giving of notice of redemption and, in connection with any
redemption or repayment at the option of the Holder, for the
optional redemption or repayment of all of the Securities of
such series on such redemption or repayment date);
(b) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be
continuing on the date of such deposit or, insofar as
Sections 5.1(d) and (e) are concerned, at any time during
the period ending on and including the 91st day after the
date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration
of such period);
(c) such defeasance shall not cause the Trustee to
have a conflicting interest for purposes of the Trust
Indenture Act of 1939 with respect to any securities of the
Issuer;
(d) such defeasance shall not result in a breach or
violation of, or constitute a Default under, this Indenture
or any Securities of such series or any other agreement or
instrument to which the Issuer is a party or by which it is
bound;
(e) the Issuer has delivered to the Trustee an Opinion
of Counsel to the effect, and such opinion shall confirm,
(i) that, based on the fact that (x) the Issuer has received
from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date hereof, there has
been a change in the applicable federal income tax law, in
either case, Holders of the Securities of such series and
the Coupons appertaining thereto will not recognize income,
gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject
to federal income tax on the same amount and in the same
manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred; and
(ii) that the trust arising from such deposit shall not
constitute an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended; and
(f) the Issuer has paid or caused to be paid all other
sums then payable hereunder by the Issuer and the Issuer has
delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance
contemplated by this provision have been complied with.
(C) The Issuer shall be released from its obligations
under Article Nine and any other covenants specified pursuant to
Section 2.3 with respect to the Securities of any series and any
Coupons appertaining thereto, other than the obligation to
provide that any successor to the Issuer, as a condition to such
succession, assume the performance of any covenant of this
Indenture of the Issuer relating to the compensation,
reimbursement of expenses and indemnities of the Trustee and any
predecessor Trustee, on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with
respect to the outstanding Securities of the applicable series,
the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in such
Article or any such covenant, whether directly or indirectly by
reason of any reference elsewhere herein to such Article or any
such covenant or by reason of any reference in such Article to
any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under
Section 5.1, but the remainder of this Indenture and such
Securities and Coupons shall be unaffected thereby. The
following shall be the conditions to application of this
subsection (C) of this Section 10.1:
(a) the Issuer has irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds in
trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such
series and Coupons appertaining thereto, (i) cash in an
amount, or (ii) in the case of any series of Securities the
payment on which may only be made in Dollars, U.S.
Government Obligations maturing as to principal and interest
at such times and in such amounts as will insure (without
investment of such cash or reinvestment of any interest or
proceeds from such U.S. Government Obligations) the
availability of cash in an amount or (iii) a combination
thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee,
to pay the principal and interest on all Securities of such
series and Coupons appertaining thereto on each date that
such principal or interest is due and payable (whether at
maturity or upon redemption (through operation of a
mandatory sinking fund or otherwise, including any
redemption or repayment at the option of the Holder)
provided, that, in connection with any such redemption at
the option of the Issuer, the Issuer shall have made
arrangements satisfactory to the Trustee for the giving of
notice of redemption and, in connection with any redemption
or repayment at the option of the Holder, for the optional
redemption or repayment of such series on such redemption or
repayment date);
(b) no Default or Event of Default or event which with
notice or lapse of time or both would become an Event of
Default with respect to the Securities shall have occurred
and be continuing on the date of such deposit or, insofar as
subsections 5.1(d) and (e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(c) such covenant defeasance will not result in a
breach or violation of, or constitute a default under, this
Indenture, or any Securities issued hereunder or any
agreement or instrument to which the Issuer is a party or by
which it is bound;
(d) such covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section
310(b) of the Trust Indenture Act of 1939;
(e) such covenant defeasance shall not cause any
Securities then listed on any registered national securities
exchange to be delisted;
(f) the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect (i) that the Holders of the
Securities of such series and Coupons appertaining thereto
will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and
will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred; and
(ii) that the trust arising from such deposit shall not
constitute an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in The
Investment Company Act of 1940, as amended; and
(g) the Issuer shall have paid or caused to be paid
all other sums then payable hereunder by the Issuer and the
Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the covenant defeasance
contemplated by this provision have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4 all monies and
securities deposited with the Trustee pursuant to Section 10.1
shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Issuer acting
as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for
the payment or redemption of which such monies or securities have
been deposited with the Trustee, of all sums due and to become
due thereon for principal and interest; but such monies or
securities need not be segregated from other funds except to the
extent required by law.
SECTION 10.3 Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture
with respect to the Securities of any series or the defeasance
thereof, all monies then held by any paying agent under the
provisions of this Indenture with respect to such series shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee
and thereupon such paying agent shall be released from all
further liability with respect to such monies.
SECTION 10.4 Return of Monies Held by Trustee and Paying
Agent Unclaimed for Two Years. Any monies or U.S. Government
Obligations deposited with or paid to the Trustee or any paying
agent for the payment of the principal of and interest on any
Security of any series or Coupons attached thereto and not
applied but remaining unclaimed for two years after the date upon
which such principal and interest shall have become due and
payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property law, be repaid to the Issuer
by the Trustee for such series or such paying agent, and the
Holder of the Securities of such series and of any Coupons
appertaining thereto shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for
any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such
monies shall thereupon cease; provided, however, that the Trustee
or such paying agent, before being required to make any such
repayment with respect to monies deposited with it for any
payment (a) in respect of Registered Securities of any series,
shall at the expense of the Issuer, mail by first class mail to
Holders of such Securities at their addresses as they shall
appear on the Security register, and (b) in respect of
Unregistered Securities of any series the Holders of which have
filed their names and addresses with the Trustee for such purpose
within two years preceding the giving of such notice, shall at
the expense of the Issuer, mail by first class mail to such
Holders at such addresses, and (c) in respect of Unregistered
Securities of any series, shall at the expense of the Issuer
cause to be published once, in an Authorized Newspaper in the
City of New York and once in an Authorized Newspaper in London
(and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) notice, that such monies remain unpaid
and that, after a date specified therein, which shall not be less
than thirty days from the date of such mailing or publication,
any unclaimed balance of such money then remaining will be repaid
to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations.
The Issuer shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 10.1 or the
principal or interest received in respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No
recourse shall be had for the payment of the principal of, or
interest on any Security or any Coupon appertaining thereto, for
any claim based thereon, or otherwise in respect thereof, or
based on or in respect of this Indenture or any indenture
supplement thereto, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the
Issuer or any successor corporation, either directly or through
the Issuer, or any successor corporation, whether by virtue of
constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by
the acceptance of such Security and any Coupons appertaining
thereto and as part of the consideration for the issue thereof,
expressly waived and released.
SECTION 11.2 Provisions of Indenture for the Sole Benefit
of Parties and Securityholders. Nothing in this Indenture or in
the Securities or in Coupons appertaining thereto, expressed or
implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of
the Securities or Coupons, if any, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or
provision herein contained, all such covenants and provisions
being for the sole benefit of the parties hereto and their
successors and the Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All covenants and agreements in this Indenture by the
Issuer shall bind its successors and assigns (whether by merger,
consolidation or otherwise), whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, the Trustee
and Securityholders. Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities or Coupons to or
on the Issuer may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Issuer
is filed by the Issuer with the Trustee) to Freeport-McMoRan
Copper & Gold Inc., 0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx
00000, Attention: Corporate Secretary. Any notice, direction,
request or demand by the Issuer or any Securityholder to or upon
the Trustee shall be deemed to have been sufficiently given or
made, for all purposes, if in writing and given or made at the
Corporate Trust Office, Attention: Corporate Trustee
Administration Department.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security
register. Where this Indenture provides for notice to Holders of
Unregistered Securities, notice shall be (i) mailed to those
Holders of Unregistered Securities who have filed their names and
addresses for this purpose with the Trustee within two preceding
years of giving such notice, with such notice being sufficiently
given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in such filing and
(ii) published at least once in an Authorized Newspaper in the
City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.7, at least once in an
Authorized Newspaper in Luxembourg). In any case where notice to
such Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect
to other Holders. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to
the Issuer and Securityholders when such notice is required to be
given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 11.5 Officers' Certificate and Opinions of
Counsel, Statements to Be Contained Therein. Upon any
application or demand by the Issuer to the Trustee to take any
action under any of the provisions of this Indenture, the Issuer
shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which
the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need
be furnished.
Except as provided in Sections 3.5 and 12.4, each
certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall
include (a) a statement that the Person making such certificate
or providing such opinion has read such covenant or condition and
the definitions relating thereto, (b) a brief statement as to the
nature and scope of the examination or investigation upon which
the statements or opinions contained in such certificate or
opinion are based, (c) a statement that, in the opinion of such
Person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with
and (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon
a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters,
information with respect to which is in the possession of the
Issuer upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Issuer unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain
a statement that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and
Holidays. If the date of maturity of interest on or principal of
the Securities of any series or any Coupons appertaining thereto
or the date fixed for redemption or repayment of any Security
shall not be a Business Day, then payment of interest or
principal need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption or
repayment, and no interest shall accrue for the period after such
date.
SECTION 11.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939. If any provision hereof limits,
qualifies or conflicts with the duties imposed by any of Sections
310 through 317, inclusive, of the Trust Indenture Act of 1939 or
with another provision hereof which is required to be included by
any of Section 310 through 317, inclusive, by operation of
Section 318(c) thereof, such duties and required provision shall
control except as, and to the extent, such provision is expressly
excluded from this Indenture, as permitted by the Trust Indenture
Act of 1939.
SECTION 11.8 New York Law to Govern; Separability. This
Indenture and each Security shall each be deemed to be a contract
under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State,
except as may otherwise be required by mandatory provisions of
law.
In case any provision of this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected thereby.
SECTION 11.9 Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one
and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officers' Certificate delivered
pursuant to Section 2.3 of this Indenture with respect to a
particular series of Securities, whenever for purposes of this
Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time
outstanding and, at such time, there are Outstanding Securities
of any series which are denominated in a coin or currency other
than Dollars (including ECUs), then the principal amount of
Securities of such series which shall be deemed to be Outstanding
for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 11.11, Market
Exchange Rate shall mean the noon Dollar buying rate in New York
City for cable transfers of that currency as published by the
Federal Reserve Bank of New York; provided, however, in the case
of ECUs, Market Exchange Rate shall mean the rate of exchange
determined by the Commission of the European Communities (or any
successor thereto) as published in the Official Journal of the
European Communities (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the
Trustee shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published
in the Journal, as of the most recent available date, or
quotations or, in the case of ECUs, rates of exchange from one or
more major banks in The City of New York or in the country of
issue of the currency in question, which for purposes of the ECU
shall be Brussels, Belgium, or such other quotations or, in the
case of ECU, rates of exchange as the Trustee shall deem
appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of
Securities of a series denominated in a currency other than
Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture including
without limitation any determination contemplated in Section
5.1(f) or (g).
All decisions and determinations of the Trustee regarding
the Market Exchange Rate or any alternative determination
provided for in the preceding paragraph shall be in its sole
discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the
fullest extent it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it
is necessary to convert the sum due in respect of the principal
of or interest on the Securities of any series (the "Required
Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New
York Banking Day, then, to the extent permitted by applicable
law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day
on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender,
or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than
the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not
be affected by judgment being obtained for any other sum due
under this Indenture. For purposes of the foregoing, "New York
Banking Day" means any day except a Saturday, Sunday or a legal
holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required
by law or executive order to close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series
which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.3 for Securities of such
series.
SECTION 12.2 Notice of Redemption. Notice of redemption
to the Holders of Registered Securities to be redeemed as a whole
or in part at the option of the Issuer shall be given in the
manner provided in Section 11.4, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such
Holders of Securities. Notice of redemption to all Holders of
Unregistered Securities shall be published in an Authorized
Newspaper in the Borough of Manhattan, the City of New York and
in an Authorized Newspaper in London (and, if required by Section
3.7, in an Authorized Newspaper in Luxembourg), in each case,
once in each of three successive calendar weeks, the first
publication to be not less than 30 nor more than 60 days prior to
the date fixed for redemption. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
Failure to give notice by mail, or any defect in the notice to
the Holder of any Security of a series designated for redemption
as a whole or in part, shall not affect the validity of the
proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify
the principal amount of each Security of such series held by such
Holder to be redeemed, the Redemption Date, the applicable
Redemption Price, and, if the Redemption Price was required to be
calculated according, or pursuant to a formula or by reference to
the value or price of any one or more commodities, currencies,
indices, instruments or other securities, the method for such
calculation and the basis for such Redemption Price, the place or
places of payment, that payment will be made upon presentation
and surrender of such Securities and, in the case of Securities
with Coupons attached thereto, of all Coupons appertaining
thereto maturing after the date fixed for redemption, that such
redemption is pursuant to a mandatory or optional sinking fund,
or both, if such be the case, that interest accrued to the
Redemption Date will be paid as specified in said notice and that
on and after said Redemption Date interest thereon or on the
portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only the
notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security, a
new Security or Securities of such series in principal amount
equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer
or, at the Issuer's request, by the Trustee in the name and at
the expense of the Issuer.
On or before the Redemption Date specified in the notice of
redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or,
if the Issuer is acting as its own paying agent, set aside,
segregate and hold in trust as provided in Section 3.4) an amount
of money sufficient to redeem on the Redemption Date all the
Securities of such series to be redeemed at the appropriate
Redemption Price, together with accrued interest to the
Redemption Date. The Issuer will deliver to the Trustee at least
70 days prior to the date fixed for redemption an Officers'
Certificate stating the aggregate principal amount of Securities
to be redeemed. In case of a redemption at the election of the
Issuer prior to the expiration of any restriction on such
redemption or subject to compliance with conditions precedent,
the Issuer shall deliver to the Trustee, prior to the giving of
any notice of redemption to Holders pursuant to this Section, an
Officers' Certificate stating that such restriction or condition
has been complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall
deem appropriate and fair, Securities of such series to be
redeemed in whole or in part. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee
shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the
Securities or portions of Securities specified in such notice
shall become due and payable on the Redemption Date and at the
place stated in such notice at the applicable Redemption Price,
together with interest accrued to the Redemption Date, and on and
after said Redemption Date (unless the Issuer shall default in
the payment of such Securities at the Redemption Price, together
with interest accrued to said Redemption Date) interest on the
Securities or portions of Securities so called for redemption
shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and such Securities shall
cease from and after the Redemption Date to be entitled to any
benefit or security under this Indenture, and the Holders thereof
shall have no right in respect of such Securities to be redeemed
except the right to receive the applicable Redemption Price
thereof and unpaid interest to the Redemption Date. On surrender
of such Securities at a place of payment specified in said
notice, together with all Coupons, if any, appertaining thereto
maturing after the Redemption Date, such Securities or the
specified portions thereof shall be paid and redeemed by the
Issuer at the applicable Redemption Price, together with interest
accrued thereon to the Redemption Date; provided that any payment
of interest becoming due on or prior to the Redemption Date shall
be payable in the case of Securities with Coupons attached
thereto, to the Holders of the Coupons for such interest upon
surrender thereof, and in the case of Registered Securities,
registered as such on the relevant Regular Record Date subject to
the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until
paid or duly provided for, bear interest from the Redemption Date
at the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons
maturing after the date fixed for redemption, the surrender of
such missing Coupon or Coupons may be waived by the Issuer and
the Trustee, if there be furnished to each of them such security
or indemnity as they may require to save each of them harmless.
Upon surrender of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense
of the Issuer, a new Security or Securities for such series, of
authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 12.4 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the
terms of the Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of the Securities
of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash,
the Issuer may at its option (a) deliver to the Trustee
Securities of such series theretofore purchased or otherwise
acquired (except upon redemption pursuant to the mandatory
sinking fund) by the Issuer or receive credit for Securities of
such series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Issuer and
delivered to the Trustee for cancellation pursuant to Section
2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so
credited) redeemed by the Issuer through any optional redemption
provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the
Trustee an Officers' Certificate (which need not contain the
statements required by Section 11.5) (a) specifying the portion
of the mandatory sinking fund payment to be satisfied by payment
of cash and the portion to be satisfied by credit of Securities
of such series and the basis for such credit, (b) stating that
none of the Securities of such series to be so credited has
theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Issuer intends
to exercise its right to make an optional sinking fund payment
with respect to such series and, if so, specifying the amount of
such optional sinking fund payment which the Issuer intends to
pay on or before the next succeeding sinking fund payment date.
Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officers'
Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officers' Certificate shall be irrevocable
and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or
payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on
or before any such 60th day, to deliver or cause to be delivered
such Officers' Certificate and Securities (subject to the
parenthetical clause in the second preceding sentence) specified
in this paragraph, if any, shall not constitute a default but
shall constitute, on and as of such date, the irrevocable
election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof
and (ii) that the Issuer will make no optional sinking fund
payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding
sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed $50,000
(or the equivalent thereof in any Foreign Currency or ECU) or a
lesser sum in Dollars (or the equivalent thereof in any Foreign
Currency or ECU) if the Issuer shall so request with respect to
the Securities of any particular series, such cash shall be
applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund
redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 (or the
equivalent thereof in any Foreign Currency or ECU) or less and
the Issuer makes no such request then it shall be carried over
until a sum in excess of $50,000 (or the equivalent thereof in
any Foreign Currency or ECU) is available. The Trustee shall
select, in the manner provided in Section 12.2 and subject to the
limitations in Section 12.4, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be practicable, and
shall (if requested in writing by the Issuer) inform the Issuer
of the serial numbers of the Securities of such series (or por
tions thereof) so selected. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the
Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner
provided in Section 12.2 (and with the effect provided in Section
12.3) for the redemption of Securities of such series in part at
the option of the Issuer. The amount of any sinking fund
payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this
Section. Any and all sinking fund monies held on the stated
maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such series
shall be applied, together with other monies, if necessary,
sufficient for the purpose, to the payment of the principal of,
and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer
shall pay to the Trustee in cash or shall otherwise provide for
the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following
sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund monies or give any
notice of redemption of Securities for such series by operation
of the sinking fund during the continuance of a default in
payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it
shall have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any monies in the sinking fund
for such series at the time when any such default or Event of
Default shall occur, and any monies thereafter paid into the
sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article
Five and held for the payment of all such Securities. In case
such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the sixtieth day
preceding the sinking fund payment date in any year, such monies
shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of
such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of November 15,
1996.
FREEPORT-McMoRan Copper & Gold Inc.
By: \s\ X. Xxxxxx Xxxxxx
X. Xxxxxx Xxxxxx
Vice President and Treasurer
[CORPORATE SEAL]
Attest:
By: \s\ Xxxxxxx X. Xxxxxxxxxx, Xx.
Xxxxxxx X. Xxxxxxxxxx, Xx.
Secretary
The Chase Manhattan Bank, as Trustee
By: \s\ X. Xxxxxxxx
X. Xxxxxxxx
Vice President
[CORPORATE SEAL OF TRUSTEE]
Attest:
By: \s\ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
Assistant Vice President
STATE OF LOUISIANA
PARISH OF ORLEANS
On this 15th day of November, 1996 before me personally came
X. Xxxxxx Xxxxxx, to me personally known, who, being by me duly
sworn, did depose and say that he resides at 0000 Xxxxxxx, Xxx
Xxxxxxx, Xxxxxxxxx, that he is a Vice President and Treasurer of
Freeport-McMoRan Copper & Gold Inc., one of the corporations
described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
\s\ Xxxxxxx X. Xxxxxxxx, XX
Notary Public
STATE OF NEW YORK
COUNTY OF NEW YORK
On this 15th day of November, 1996, before me personally
came X. Xxxxxxxx, to me personally known, who, being by me duly
sworn, did depose and say that she resides at 00 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx; that she is a Vice President of The
Chase Manhattan Bank, one of the corporations described in and
which executed the above instrument; that she knows the corporate
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that
she signed her name thereto by like authority.
[NOTARIAL SEAL]
\s\ Xxxxxxxxx XxXxxx
Notary Public
