FREEPORT-McMoRan COPPER & GOLD INC.
and
THE CHASE MANHATTAN BANK,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of November 18, 1996
to
SENIOR INDENTURE
Dated as of November 15, 1996
$200,000,000
7.50% Senior Notes due 2006
and
$250,000,000
7.20% Senior Notes due 2026
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture"), dated as of November 18, 1996, is by and
between Freeport-McMoRan Copper & Gold Inc., a Delaware
corporation (the "Issuer"), and The Chase Manhattan Bank, a
New York corporation, as trustee (the "Trustee"), and to the
Senior Indenture, dated as of November 15, 1996 (the
"Original Indenture"), between the Issuer and the Trustee
(the Original Indenture, as supplemented by this First
Supplemental Indenture being referred to herein as the
"Indenture").
W I T N E S S E T H :
WHEREAS, the Issuer has heretofore executed and
delivered to the Trustee the Original Indenture providing,
among other things, for the issuance from time to time of
the Issuer's Securities;
WHEREAS, the Issuer has duly authorized (i) the
creation of the first and second series of securities under
the Indenture, to be known as its 7.50% Senior Notes due
2006 (the "2006 Notes") and its 7.20% Senior Notes due 2026
(the "2026 Notes," and together with the 2006 Notes, the
"Senior Notes") and (ii) the execution and delivery of this
Supplemental Indenture to establish the Senior Notes as two
series of Securities under the Indenture and to provide for,
among other things, the issuance of and the respective forms
and terms of the Senior Notes and certain additional
covenants;
WHEREAS, Section 8.1(e) of the Original Indenture
provides for the Issuer and the Trustee to enter into an
indenture supplemental to the Original Indenture to
establish the form and terms of Securities of any series as
provided by Sections 2.1 and 2.3 of the Original Indenture;
WHEREAS, Section 2.3 of the Original Indenture provides
for various matters with respect to any series of Securities
issued under the Indenture to be established in an indenture
supplemental to the Original Indenture; and
WHEREAS, all things necessary to make the Senior Notes,
when executed by the Issuer and authenticated and delivered
by the Trustee as provided in the Indenture, the valid,
binding and legal obligations of the Issuer, and to
constitute this First Supplemental Indenture a valid
agreement of the Issuer according to its terms have been
done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and the
purchases of the Securities of the two series provided for
herein by the Holders thereof, the Issuer and the Trustee
mutually covenant and agree, for the equal and proportionate
benefit of the respective Holders from time to time of each
such series as follows:
ARTICLE ONE
DEFINITIONS
1.1 Certain Terms Defined. Unless otherwise defined
herein or unless the context of this First Supplemental
Indenture otherwise requires, all terms used in this First
Supplemental Indenture which are defined in the Original
Indenture shall have the meanings assigned to them in the
Original Indenture. The following terms, which are in
addition to those defined in Section 1.1 of the Original
Indenture, shall have the respective meanings specified in
this Section. Such terms shall apply only to the Senior
Notes except to the extent specifically made applicable to
any other series of Securities by the Board Resolutions,
Officers' Certificate or supplemental indenture establishing
such series of Securities as provided for in Section 2.3 of
the Original Indenture. All references herein to Articles
and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this First
Supplemental Indenture. The terms "herein," "hereof,"
"hereunder" and other words of similar import refer to this
First Supplemental Indenture.
"Attributable Debt" when used in connection with a
Sale/Leaseback Transaction means, at the time of
determination, the lesser of: (a) the fair value of the
property subject thereto (as determined in good faith by the
Issuer); or (b) the then present value of the total net
amount of rent required to be paid under the lease in
respect of such Sale/Leaseback Transaction during the
remaining term thereof (including any renewal term or period
for which such lease has been extended) or until the earlier
date on which the lessee may terminate such lease upon
payment of a penalty or a lump-sum termination payment (in
which case the total net rent shall include such penalty or
termination payment), computed by discounting from the
respective due dates to such dates such total net amount of
rent at the actual interest factor included in such rent or
implicit in the terms of the applicable Sale/Leaseback
Transaction, as determined in good faith by the Issuer. For
purposes of the foregoing definition, rent shall not include
amounts required to be paid by the lessee, whether or not
designated as rent or additional rent, on account of or
contingent upon maintenance and repair, insurance, taxes,
assessments, water rates and similar charges.
"Business Day" means a day which, in the City and State
of New York, is neither a Saturday, Sunday or legal holiday
nor a day on which banking institutions and trust companies
are authorized by law or regulation or executive order to
close.
"Capital Stock" means any and all shares, interests,
rights to purchase, options, participations or other
equivalents of or interests in (however designated)
corporate stock or any security issued in exchange therefor
or distributed in respect thereof.
"Capitalized Lease Obligation" of any Person means any
obligation that is required to be classified and accounted
for as a capital lease on a balance sheet of such Person in
accordance with generally accepted accounting principles.
"Comparable Treasury Issue" means, with respect to any
series of Senior Notes, the United States Treasury security
selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Senior
Notes of such series that would be utilized, at the time of
selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of such series
of Senior Notes.
"Comparable Treasury Price" means, with respect to any
series of Senior Notes, with respect to any redemption date,
(i) the average of the bid and asked prices for the
Comparable Treasury Issue for such series (expressed in each
case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in
the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such
prices on such Business Day, (A) the average of the
Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains
fewer than three such Reference Treasury Dealer Quotations,
the average of all such Quotations.
"Consolidated Total Assets" means at any date the
consolidated assets of a Person and its consolidated
Subsidiaries, including all investments by such Person or
its consolidated Subsidiaries in other Persons, all as
reflected on the most recent consolidated balance sheet of
such Person and its consolidated Subsidiaries.
"COW Area Block A" means the geographic area designated
as Contract Block A in the Contract of Work between the
Government of the Republic of Indonesia and PT-FI, dated
December 30, 1991, as the same has been renewed, replaced,
extended, amended, supplemented or modified to the date
hereof, containing, as of the date hereof, all proved and
probable reserves of PT-FI.
"Debt" means (without duplication), with respect to any
Person, (i) all obligations of such Person for borrowed
money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion
thereof), (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (including
conditional sale obligations and title retention
arrangements), except accounts payable and accrued expenses
incurred in the ordinary course of business, (iv) all
Capitalized Lease Obligations of such Person, (v) all
obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or
similar credit transaction securing obligations described in
the foregoing clauses (i) through (iv), (vi) any obligations
of such Person with respect to the redemption, repayment or
other purchase of any preferred stock (but excluding any
obligation due within the following six months, the payment
of which is secured by a deposit of cash or U.S. Government
Obligations), (vii) all Debt of others secured by a Lien on
any asset of such Person, whether or not such Debt is
assumed by such Person, and (viii) all Debt of others
guaranteed by such Person to the extent of such guarantee.
"Event of Default" means any event or condition
specified in Section 5.1 of the Original Indenture, as
amended, modified and supplemented by Article Four hereof.
"First Supplemental Indenture" means this First
Supplemental Indenture dated as of November 18, 1996 by and
between the Issuer and the Trustee.
"Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Issuer as
Independent Investment Banker for purposes of this First
Supplemental Indenture.
"issue" means issue, assume, guarantee, incur or
otherwise become liable for; provided, however, that any
Debt or Capital Stock of a Person existing at the time such
Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to
be issued by such Subsidiary at the time it becomes a
Subsidiary.
"Lien" means, with respect to any property or assets,
any mortgage or deed of trust, pledge, charge, security
interest, assignment, encumbrance, conditional sale or other
title retention agreement; provided, however, that Lien
shall not include a trust established for the purpose of
defeasing any Debt pursuant to the terms evidencing or
providing for the issuance of such Debt if the assets of
such trust are limited to cash and U.S. Government
Obligations.
"Non-Recourse Obligation" means, at any date, Debt
substantially related to (i) the acquisition of property or
assets not owned by the Issuer or any of its Subsidiaries as
of the date of original issuance of the Senior Notes or (ii)
the financing of a project involving the acquisition or
development of any property or assets of the Issuer or any
of its Subsidiaries, as to which in the case of clause (i)
or (ii) the obligee with respect to such Debt has no
recourse to the general corporate funds or the property or
assets, in general, of the Issuer.
"PT-FI" means P. T. Freeport Indonesia Company, a
limited liability company organized under the laws of
Indonesia and also domesticated in Delaware, and its
successors and assigns.
"PT-FI Bank Credit Facility" means the credit facility
evidenced by that certain $550 million Credit Agreement,
dated as of October 27, 1989, as amended, modified,
supplemented or restated from time to time, by and among PT-
FI, the Issuer, the financial institutions from time to time
parties thereto, First Trust of New York, National
Association, as PT-FI Trustee, and The Chase Manhattan Bank
as Administrative Agent, Security Agent, JAA Security Agent
and Documentary Agent.
"Reference Treasury Dealer" means each of UBS
Securities LLC, Chase Securities Inc. and CS First Boston
Corporation and their respective successors; provided
however, that if any of the foregoing cease to be a primary
U.S. Government Securities dealer in New York City (a
"Primary Treasury Dealer"), the Issuer shall substitute
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with
respect to any series of Senior Notes, with respect to each
Reference Treasury Dealer and any redemption date, the
average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue for such series
(expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day
preceding such redemption date.
"Regular Record Dates" means the dates set forth as
such in Section 2.4(4).
"Sale/Leaseback Transaction" means any arrangement with
any Person providing for the leasing by the Issuer, for a
period of more than three years, of any property or assets,
which property or assets have been or are to be sold or
transferred by the Issuer to such Person in contemplation of
such leasing.
"Senior Notes" has the meaning stated in the second
recital of this First Supplemental Indenture.
"Senior Secured Indebtedness" means Debt of the Issuer
secured by a Lien on any property or assets of the Issuer.
"Significant Subsidiary" means any Subsidiary of the
Issuer the Consolidated Total Assets of which equal or
exceed an amount equal to 20% of the Issuer's Consolidated
Total Assets.
"Subsidiary" of a Person means any corporation,
association, partnership or other business entity of which
more than 50% of the total voting power of shares of Capital
Stock or other interests (including partnership interests)
entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or any of its
Subsidiaries, and any partnership of which more than 50% of
the partnership interests are owned or controlled, directly
or indirectly, by such Person or any of its Subsidiaries.
"Treasury Rate" means, with respect to any series of
Senior Notes, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue for such series,
assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price for such redemption date.
"2006 Notes" or "2006 Note" has the meaning stated in
the second recital of this First Supplemental Indenture.
"2026 Notes" or "2026 Note" has the meaning stated in
the second recital of this First Supplemental Indenture.
ARTICLE TWO
TERMS AND ISSUANCE OF 7.50% SENIOR NOTES DUE 2006
AND 7.20% SENIOR NOTES DUE 2026
SECTION 2.1. Issue of Senior Notes. The first and
second series of Securities to be issued under the
Indenture, which shall be designated the "7.50 % Senior
Notes due 2006" and the "7.20% Senior Notes due 2026,"
respectively, shall be executed, authenticated and delivered
in accordance with the provisions of, and shall in all
respects be subject to, the terms, conditions and covenants
of the Indenture (including the forms of Senior Notes set
forth in Exhibits A and B hereto). The aggregate principal
amount of 2006 and 2026 Notes which may be authenticated and
delivered under the Indenture shall not exceed $200,000,000
and $250,000,000, respectively (except for Senior Notes
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Senior Notes
pursuant to Sections 2.8, 2.9, 2.11, 8.5 or 12.3 of the
Original Indenture). The entire amount of Senior Notes may
forthwith be executed by the Issuer and delivered to the
Trustee and shall be authenticated by the Trustee and
delivered to or upon the order of the Issuer (contained in a
Company order) pursuant to Section 2.4 of the Original
Indenture.
SECTION 2.2 Forms. The 2006 Notes and the 2026 Notes
shall each be issued in whole in the form of one or more
Registered Global Securities and shall be substantially in
the respective forms set forth in Exhibits A and B hereto,
each of which is hereby incorporated by reference and made a
part of the Indenture. The Depositary for such Registered
Global Securities shall be The Depository Trust Company, 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 2.3 Stated Maturity. The 2006 Notes shall
have a Stated Maturity with respect to the principal of (and
any accrued and unpaid interest or premium on) such
Securities of November 15, 2006, and the 2026 Notes shall
have a Stated Maturity with respect to the principal of (and
any accrued and unpaid interest or premium on) such
Securities of November 15, 2026.
SECTION 2.4 Interest. Subject to the terms of the
Senior Notes set forth in Exhibits A and B hereto, the
following shall apply to the Senior Notes:
(1) The 2006 Notes shall bear interest at the rate of
7.50% per annum and the 2026 Notes shall bear interest at
the rate of 7.20% per annum.
(2) Interest in respect of the Senior Notes shall
accrue from November 18, 1996 or from the most recent
Interest Payment Date to which interest has been paid or
duly provided for.
(3) The Interest Payment Dates on which interest shall
be payable in respect of the Senior Notes shall be May 15
and November 15 in each year, commencing May 15, 1997.
(4) The Regular Record Dates for interest in respect
of the Senior Notes shall be April 30 and October 31
(whether or not a Business Day) in respect of the interest
payable on May 15 and November 15, respectively.
(5) Interest on the Senior Notes shall be calculated
on the basis of a 360-day year consisting of twelve 30-day
months.
SECTION 2.5 Redemption. The Senior Notes will be
redeemable and the provisions of Article Twelve of the
Original Indenture will be applicable to the Senior Notes,
to the extent and in the manner provided in Article Seven
hereof.
SECTION 2.6 Additional Covenants. The covenants
contained in Article Three of this First Supplemental
Indenture shall apply to the Senior Notes in addition to the
covenants contained in the Original Indenture.
SECTION 2.7 Amendments to Events of Default. The
amendments to Section 5.1 of the Original Indenture
contained in Article Four of this First Supplemental
Indenture shall apply to the Senior Notes.
SECTION 2.8 Amendments to Article Nine. The
amendments to Section 9.1 of the Original Indenture
contained in Article Six of this First Supplemental
Indenture shall apply to the Senior Notes.
SECTION 2.9 Repayment Option. The 2026 Notes may be
repaid, at the option of the holders thereof on November 15,
2003, in accordance with and pursuant to the terms of
Sections 11.13 and 11.14 of the Original Indenture as added
thereto by Article Eight of this First Supplemental
Indenture.
ARTICLE THREE
ADDITIONAL COVENANTS
For purposes of the Senior Notes, and solely for the
benefit of the Holders thereof, Article Three of the
Original Indenture shall be amended by adding thereto the
following additional covenants of the Issuer. Such
covenants shall apply only to the Senior Notes except to the
extent specifically made applicable to any other series of
Securities by the Board Resolutions, Officers' Certificate
or supplemental indenture establishing such series of
Securities as provided for in Section 2.3 of the Original
Indenture.
"SECTION 3.8 Limitation on Liens. Except as provided
in this Section 3.8, the Issuer will not issue, create,
incur, assume or suffer to exist any Debt secured by any
Lien upon (i) any property or assets, now owned or hereafter
acquired by the Issuer or (ii) any Capital Stock of PT-FI or
a Restricted PT-FI Transferee (as defined below) now owned
or hereafter acquired by the Issuer or any Subsidiary of the
Issuer without making effective provision whereby any and
all Senior Notes then or thereafter Outstanding will be
secured by a Lien equally and ratably with (or, at the
Issuer's option, prior to) any and all obligations thereby
secured for so long as any such obligations shall be so
secured. The foregoing restriction, however, will not,
however, apply to:
(a) Liens on the Capital Stock of any Subsidiary,
including any Restricted PT-FI Transferee, to secure the
Issuer's guarantee of any Debt of such Subsidiary in an
aggregate principal amount for all such Debt of all such
Subsidiaries (including any extension, refinancing, renewal,
replacement or refunding of such Debt) not to exceed the
existing committed amount under the PT-FI Bank Credit
Facility on November 13, 1996, provided that in the case of
a Lien on the Capital Stock of PT-FI in no event shall
Capital Stock representing more than a 50.1% ownership
interest in PT-FI on a fully-diluted basis be subject to any
such Lien;
(b) Liens to secure any Debt of the Issuer (including
any guarantee by the Issuer of any Debt of a Subsidiary of
the Issuer) in an aggregate principal amount (including any
extension, refinancing, renewal, replacement or refunding of
such Debt) not to exceed the principal amount of the Debt
(excluding for this purpose the amount committed or
outstanding under the PT-FI Bank Credit Facility on November
13, 1996 and the aggregate amount of Debt of FM Properties
Inc. and its subsidiaries guaranteed or committed to be
guaranteed by the Issuer on November 13, 1996) committed or
outstanding on November 13, 1996, which amount does not
exceed $630 million;
(c) Liens incurred on real or personal property,
including the Capital Stock of any Subsidiary acquiring or
owning such property, for the purpose of (i) financing all
or any part of the purchase price of such property by the
Issuer or such Subsidiary and incurred prior to, at the time
of, or within 180 days after, the acquisition of such
property or (ii) financing all or any part of the cost of
construction, improvement, development or expansion of any
such property, provided that in the case of clause (i) or
(ii) the amount of such financing shall not exceed the
amount expended in the acquisition of, or construction,
improvement or development of, such property; provided
further, that the Lien permitted by this clause (c) shall
not include any Lien on the Capital Stock of (x) PT-FI or
(y) any other Subsidiary of the Issuer to which PT-FI has
transferred, directly or indirectly, assets with a value in
excess of $10 million and which are within or constitute a
part of COW Area Block A, other than (A) machinery,
equipment, fixtures, infrastructure and real property
(excluding any and all mineral rights appertaining thereto)
that is not directly involved in the mining of COW Area
Block A and (B) assets that are transferred by PT-FI on
terms that are no less favorable to PT-FI than those that
could have been obtained by PT-FI in a comparable
transaction with an unrelated party (any such Subsidiary
described in clause (y) being referred to herein as a
"Restricted PT-FI Transferee");
(d) Liens on property or other assets existing at the
time of acquisition thereof by the Issuer, including
acquisition through merger, consolidation or the purchase of
property or other assets; provided that such Liens do not
extend to other property or assets of the Issuer;
(e) Liens created in connection with a project
financed with, and created to secure a Non-Recourse
Obligation, provided that such Liens are limited (i) to the
property or assets acquired, constructed or improved with
the proceeds of such Non-Recourse Obligation and (ii) to the
Capital Stock of a special purpose Subsidiary of the Issuer
created to issue or incur such Non-Recourse Obligation;
(f) Liens arising from or in connection with the
conveyance of any production payment or similar obligation
or instrument with respect to any mineral or natural
resource that is not in production on November 13, 1996;
(g) Liens to secure Debt incurred in connection with
the construction, installation or financing of pollution
control or abatement facilities or other forms of industrial
revenue or development bond financing, which Liens extend
solely to the property which is the subject thereof;
(h) Liens to secure Debt issued or guaranteed by the
United States or any state or any department, agency or
instrumentality of the United States, incurred in connection
with the financing of the construction, refurbishment or
operation of any property or assets of the Issuer, which
Liens extend solely to the property which is the subject
thereof;
(i) Liens arising by reason of deposits necessary to
obtain standby letters of credit and surety bonds in the
ordinary course of business;
(j) Liens in favor of governmental bodies to secure
progress, advance and other payments required in connection
with the acquisition, possession or use of any property or
assets of the Issuer;
(k) Liens in favor of customs and revenue authorities
or incurred upon any property or assets in accordance with
customary banking practice to secure any indebtedness
incurred in connection with the exporting of goods to, or
between, or the marketing of goods, or the importing of
goods from, foreign countries, which Liens extend only to
the property or asset being so exported or imported;
(l) Liens upon property or assets sold by the Issuer
resulting from the exercise of any rights or arising out of
defaults on receivables to secure Debt relating to the sale
of such property or assets; and
(m) Liens to secure Debt incurred to extend,
refinance, renew, replace or refund (or successive
extensions, refinancings, renewals, replacements or
refundings) of any Debt secured by any Lien referred to in
the foregoing clauses (c) through (l) so long as such Lien
does not extend to any other property and the amount of such
Debt so secured is not increased above the amount
outstanding immediately prior to such refinancing.
Notwithstanding the foregoing, the Issuer may create or
assume Liens in addition to those permitted by the preceding
sentence of this Section 3.8 and renew, extend or replace
such Liens, provided that at the time of such creation,
assumption, renewal, extension or replacement, and after
giving effect thereto, the Debt so secured by any such Lien
plus any Attributable Debt does not exceed 10% of
Consolidated Total Assets as shown on the balance sheet of
the Issuer as of the end of the most recent fiscal quarter
prior to the incurrence of the Debt for which a balance
sheet is available."
"SECTION 3.9 Limitation on Sale/Leaseback Transactions.
Except as otherwise provided in this Section 3.9, the Issuer
will not enter into any Sale/Leaseback Transaction unless
(a) the Issuer would be entitled to incur Debt, in a
principal amount equal to the Attributable Debt with respect
to such Sale/Leaseback Transaction secured by a Lien on the
property subject to such Sale/Leaseback Transaction pursuant
to Section 3.8 above, without equally and ratably securing
the Outstanding Senior Notes pursuant to Section 3.8 above;
(b) since the date of the original issuance of the Senior
Notes and within a period commencing six months prior to the
effective date of such Sale/Leaseback Transaction and ending
six months thereafter, the Issuer has expended or will
expend for any property (including amounts expended for the
acquisition, and for additions, alterations, improvements
and repairs thereto) an amount equal to all or a portion of
the net proceeds received from such transaction and the
Issuer elects to designate such amount as a credit against
the application of the restrictions set forth in Section 3.8
above to such transaction (with any such amount not being so
designated to be applied as set forth in (c) below); or (c)
the Issuer, during or immediately after the expiration of
the 12 months after the effective date of any such
Sale/Leaseback Transaction, applies to the voluntary
defeasance or retirement of the Senior Notes and any of its
other Senior Secured Indebtedness an amount equal to the
greater of the net proceeds of the sale or transfer of the
property leased in such transaction or the Attributable Debt
as determined by the Issuer in an Officers' Certificate
delivered to the Trustee at the time of entering into such
transaction (in either case adjusted to reflect the
remaining term of the lease and any amount utilized by the
Issuer as set forth in (b) above), less an amount equal to
the principal amount of the Senior Notes delivered within 12
months after the date of such arrangement to the Trustee for
retirement and cancellation and excluding retirements of
Senior Notes and any Senior Secured Indebtedness as a result
of conversions or pursuant to mandatory sinking fund or
mandatory prepayment provisions or by payment at maturity."
"SECTION 3.10 Payment of Taxes and Other Claims. The
Issuer will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1)
taxes, assessments and governmental charges levied or
imposed upon the Issuer or upon the income, profits or
property of the Issuer, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become
a Lien upon the property of the Issuer; provided, however,
that the Issuer shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is
being contested in good faith in appropriate proceedings."
ARTICLE FOUR
EVENTS OF DEFAULT
For purposes of the Senior Notes, and for the benefit
of the Holders thereof, Section 5.1 of the Original
Indenture shall be amended (i) by amending and restating
clause (b) of the definition of "Event of Default" as set
forth below, (ii) by adding to such definition a new clause
(c) as set forth below and renumbering clause (c) of such
definition as clause (d), (iii) by substituting clauses (e),
(f), (g) and (h) set forth below for clauses (d), (e), (f)
and (g), respectively, of the definition of "Events of
Default" in the Original Indenture, (iv) by renumbering
clause (h) of such definition as clause (i) and (v) by
substituting the material set forth under "Insert" below for
the balance of the first full paragraph and the second full
paragraph of Section 5.1 of the Original Indenture. Such
amended and additional Events of Default shall apply only to
the Senior Notes except to the extent specifically made
applicable to any other series of Securities by the Board
Resolutions, Officers' Certificate or supplemental indenture
establishing such series of Securities as provided for in
Section 2.3 of the Original Indenture.
"(b) default in the payment of all or any part of
the principal of any of the Securities of such series
of Senior Notes as and when the same shall become due
and payable at their Stated Maturities, upon
redemption, or, in the case of the 2026 Notes, upon
exercise by a holder of any such 2026 Note of the
repayment option described in and pursuant to Section
11.13 hereof, or otherwise; or"
"(c) failure on the part of the Issuer to comply
with the covenants contained in Section 9.1 of the
Indenture; or"
"(e) the entry by a court having jurisdiction in
the premises of (A) a decree or order for relief in
respect of the Issuer or any Significant Subsidiary in
an involuntary case or proceeding under any applicable
Insolvency Law or (B) a decree or order adjudging the
Issuer or any Significant Subsidiary a bankrupt or
insolvent under any applicable Insolvency Law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Issuer
or any Significant Subsidiary or of any substantial
part of the property of the Issuer or any Significant
Subsidiary or ordering the winding up or liquidation of
the affairs of the Issuer or any Significant
Subsidiary, and the continuance of any such decree or
order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive
days; or"
"(f) the commencement by the Issuer or any
Significant Subsidiary of a voluntary case or
proceeding under any applicable Insolvency Law or of
any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Issuer or
any Significant Subsidiary to the entry of a decree or
order for relief in respect of the Issuer or any
Significant Subsidiary in an involuntary case or
proceeding under any applicable Insolvency Law or to
the commencement of any bankruptcy or insolvency case
or proceeding against the Issuer or any Significant
Subsidiary, or the filing by the Issuer or any
Significant Subsidiary of a petition, answer or consent
seeking reorganization or relief under any applicable
Insolvency Law, or the consent by the Issuer or any
Significant Subsidiary to the filing of such petition
or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Issuer or any
Significant Subsidiary, or of any substantial part of
the property of the Issuer or any Significant
Subsidiary, or the making by the Issuer or any
Significant Subsidiary of an assignment for the benefit
of creditors, or the admission by the Issuer or any
Significant Subsidiary in writing of its inability to
pay its debts generally as they become due, or the
taking of corporate action (which shall involve the
passing of one or more Board Resolutions by the Issuer
or any Significant Subsidiary) in furtherance of any
such action; or"
"(g) the acceleration of the maturity or non-
payment within any applicable grace period after final
maturity of any Debt (other than the Senior Notes or
any Non-Recourse Obligation) of the Issuer or any
Significant Subsidiary having an outstanding principal
amount of $40,000,000 or more individually or in the
aggregate (or the equivalent thereof in any other
currency or composite currency) if, in the case of an
acceleration, such acceleration has not been rescinded
or annulled within a period of 30 days; or"
"(h) the rendering of one or more judgments or
orders for the payment of money in the aggregate in
excess of $40,000,000 (calculated net of any insurance
coverage that the insurer has irrevocably acknowledged
to the Issuer or any Significant Subsidiary as covering
such judgment in whole or in part) against the Issuer
or any Significant Subsidiary and such judgment or
order shall continue unsatisfied and unstayed for a
period of 60 days,"
Insert: "provided that if any such failure or
acceleration referred to in clause (g) above shall cease or
be cured, waived, rescinded or annulled then the Event of
Default hereunder by reason thereof, and any acceleration
under this Section 5.1 resulting solely therefrom, shall be
deemed likewise to have been thereupon cured, waived,
rescinded or annulled without further action on the part of
either the Trustee or any of the Holders of the Securities
of such series."
"If an Event of Default occurs with respect to the
Securities of a series of Senior Notes and is continuing
(other than an Event of Default specified in clause (e) or
(f) above), then, and in each and every such case, unless
the principal of all of the Securities of such series of
Senior Notes shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of such series
then Outstanding hereunder, by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal, plus accrued and unpaid
interest, if any, through the date of the declaration of
acceleration of all the Securities of such series, to be due
and payable immediately, and upon any such declaration the
same shall become immediately due and payable. If an Event
of Default specified in clause (e) or (f) of this Section
occurs, the principal amount of all the Securities of such
series shall automatically, and without any declaration or
other action on the part of the Trustee or any Holder,
become immediately due and payable. The amount due and
payable on the acceleration of any Security will be equal to
100% of the principal amount of such Security, plus accrued
interest, if any, to the date of payment. The foregoing
provisions, however, are subject to the condition that if,
at any time after the principal of the Securities of such
series shall have been so declared due and payable, and
before any judgment or decree for the payment of the monies
due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of
interest, if any, upon all the Securities of such series,
and the principal of any and all Securities of such series
which shall have become due otherwise than by acceleration
(with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable
law, on overdue installments of interest, if any, at the
same rate as the rate of interest specified in the
Securities of such series, to the date of such payment or
deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor
Trustee, their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith, and if any
and all Events of Default with respect to such series under
this Indenture, other than the non-payment of the principal
of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as
provided herein--then and in every such case the Holders of
a majority in aggregate principal amount of the Securities
of such series then Outstanding, by written notice to the
Issuer and to the Trustee, may waive all defaults with
respect to such series and rescind and annul such
declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any
subsequent Default or shall impair any right consequent
thereon."
For purposes of the Senior Notes, and for the benefit
of the Holders thereof, Section 5.2 of the Original
Indenture shall be amended by deleting the following words
from clause (b) thereof: "other than a Default that is the
result of an optional redemption by the Holders of
Securities of any series, the amount of which is not in
excess of $50,000,000 or the equivalent thereof in any
currency or composite currency, unless such Default shall
have continued for a period of 60 days after giving a notice
with respect thereto under Section 5.1(c),". Such deletion
shall apply only to the Senior Notes except to the extent
specifically made applicable to any other series of
Securities by Board Resolutions, Officers' Certificates or
supplemental indentures establishing such series of
Securities as provided for in Section 2.3 of the Original
Indenture.
ARTICLE FIVE
CONCERNING THE TRUSTEE
For purposes of the Senior Notes, the following
paragraph shall be added to the end of Section 6.1 of the
Original Indenture. Such amended paragraph shall apply to
the Senior Notes and to any other series of Securities to
which the foregoing amended and additional Events of Default
are made applicable as aforesaid.
"The Trustee should not be charged with knowledge of
any Event of Default under Section 5.1(c), (g) or (h) or of
the identity of any Significant Subsidiary unless a
Responsible Officer of the Trustee shall have actual
knowledge thereof or the Trustee shall have received written
notice thereof in accordance with Section 11.4 hereof from
the Issuer or any Securityholder."
ARTICLE SIX
CONSOLIDATION, MERGER AND SALE OF ASSETS
For purposes of the Senior Notes, and solely for the
benefit of the Holders thereof, Article Nine of the Original
Indenture shall be amended by deleting Section 9.1 of the
Original Indenture and substituting therefor the following
provisions. Such amended provisions shall apply only to the
Senior Notes except to the extent specifically made
applicable to any other series of Securities by the Board
Resolutions, Officers' Certificate or supplemental indenture
establishing such series of Securities as provided for in
Section 2.3 of the Original Indenture.
"SECTION 9.1 Covenant of the Issuer Not to Merge,
Consolidate, Sell or Convey Property Except Under Certain
Conditions. The Issuer covenants that it will not merge
with or into or consolidate with any Person or sell, convey,
transfer, lease or otherwise dispose of all or substantially
all of its assets to any Person and the Issuer shall not
permit any Person to consolidate with or merge into the
Issuer or sell, convey, transfer, lease or otherwise dispose
of all or substantially all of its assets to the Issuer
unless (i) either the Issuer (in the case of a merger) shall
be the continuing corporation, or the successor corporation
or Person that acquires by sale, conveyance, transfer, lease
or disposition all or substantially all of the assets of the
Issuer shall be a corporation organized under the laws of
the United States of America or any State thereof or the
District of Columbia, and shall expressly assume, by
supplemental indenture, in form satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation
pursuant to Article Eight hereof, all of the obligations of
the Issuer pursuant to this Indenture and the Senior Notes
and the due and punctual performance of any covenant of this
Indenture on the part of the Issuer to be performed or
observed; (ii) immediately after giving effect to such
transaction and treating any Debt which becomes an
obligation of the Issuer or any Subsidiary of the Issuer as
a result thereof as having been incurred by the Issuer or
such Subsidiary at the time of such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) if, as a result of any such transaction, property or
assets of the Issuer or Capital Stock of PT-FI or a
Restricted PT-FI Transferee would become subject to a Lien
prohibited by Section 3.8 hereof, the Issuer shall have
secured the Senior Notes as required by said Section 3.8;
and (iv) the Issuer has delivered to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating
that such transaction and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture, complies with this Indenture and
that all conditions precedent provided for herein relating
to such transaction have been complied with."
ARTICLE SEVEN
REDEMPTION OF SENIOR NOTES
For purposes of the Senior Notes, and solely for the
benefit of the Holders thereof, Article Twelve of the
Original Indenture will be amended by the replacement of
Section 12.1 in its entirety with the provisions set forth
below. Such amended and additional provisions shall apply
only to the Senior Notes except to the extent specifically
made applicable to any other series of Securities by the
Board Resolution, Officers' Certificate or supplemental
indenture establishing such series of Securities as provided
for in Section 2.3 of the Original Indenture.
"SECTION 12.1 Right of Optional Redemption. Any series
of Senior Notes may be redeemed at the option of the Issuer,
at any time, as a whole or in part, upon not less than 30
nor more than 60 days' notice by mail in accordance with
Section 12.2, at a Redemption Price determined separately
for the Securities of each such series equal to the greater
of (i) 100% of the principal amount of the Securities to be
redeemed and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest
thereon discounted to the Redemption Date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate for such series plus 30 basis
points, plus in each case accrued interest thereon, if any,
to the Redemption Date. The Redemption Price calculated as
aforesaid, shall be set forth in an Officers' Certificate
delivered to the Trustee no later than two Business Days
prior to the Redemption Date. Any notice of redemption
given pursuant to Section 12.2 with respect to the foregoing
redemption need not set forth the Redemption Price but need
only set forth the manner of calculation thereof."
ARTICLE EIGHT
RIGHT OF REPAYMENT
For purposes of the 2026 Notes, and solely for the
benefit of the Holders thereof, Article Eleven of the
Original Indenture shall be amended by adding thereto the
following additional provisions set forth below. Such
provisions shall apply only to the 2026 Notes except to the
extent specifically made applicable to any other series of
Securities by the Board Resolutions, Officers' Certificate
or supplemental indenture establishing such series of
Securities as provided for in Section 2.3 of the Original
Indenture.
"SECTION 11.13 Right of Repayment. Any 2026 Note shall
be repaid at the option of the Holder thereof on November
15, 2003 (the "Repurchase Date") at 100% of its principal
amount plus accrued interest to November 15, 2003. In order
for a 2026 Note to be repaid on the Repurchase Date pursuant
to this Section 11.13, the Issuer must receive, at its
office or agency in New York, New York maintained for such
purpose pursuant to Section 3.2 hereof, no earlier than
September 15, 2003 and no later than 5:00 p.m. (New York
City Time) on October 15, 2003 (or if October 15, 2003 is
not a Business Day, the next succeeding Business Day), (a)
appropriate wire instructions directing a wire transfer to
an account with a banking institution located in the United
States of America (which may be included in the form
entitled "Option to Elect Repayment on November 15, 2003")
and (b) either (i) the 2026 Note with the form entitled
"Option to Elect Repayment on November 15, 2003" (a form of
which is set forth in Section 11.14 hereof) attached to the
2026 Note duly completed or (ii) a telegram, telex,
facsimile transmission or letter from a member of a national
securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust
company in the United States setting forth the name of the
Holder of such 2026 Note, the principal amount of such 2026
Note, the portion of the principal amount of such 2026 Note
to be repaid, the certificate number or a description of the
tenor and terms of such 2026 Note, a statement that the
option to elect repayment is being exercised thereby and a
guarantee that such 2026 Note to be repaid with the form
entitled "Option to Elect Repayment on November 15, 2003"
attached to such 2026 Note duly completed will be received
by the Issuer not later than five Business Days after the
date of such telegram, telex, facsimile transmission or
letter, and such 2026 Note and form duly completed must be
received by the Issuer by such fifth Business Day. Any
notice of exercise of the repayment option by the Holder of
such 2026 Note received by the Issuer after September 15,
2003 and before 5:00 p.m. (New York City Time) October 15,
2003 shall be irrevocable.
The repayment option may be exercised by the Holder of
such 2026 Note for less than the entire principal amount of
the 2026 Note held by such Holder provided that the
principal amount of the 2026 Note remaining Outstanding
after repayment pursuant to this Section 11.13 is an
authorized denomination. No registration of, transfer or
exchange of such 2026 Note (or, in the event that such 2026
Note is to be repaid in part, the portion of the 2026 Note
to be repaid) will be permitted after exercise of a
repayment option. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of
any 2026 Note for repayment will be determined by the
Issuer, whose determination will be final, binding and non-
appealable.
As long as the 2026 Notes are represented by a
Registered Global Security, the Depositary or the
Depositary's nominee will be the only entity that can
exercise a right to repayment pursuant to this Section 11.13
and thereby give sufficient notice of such an exercise to
the Issuer as provided in this Section 11.13. Participants
or owners of beneficial interests in the 2026 Notes
represented by such Registered Global Security must give
notice of their desire to exercise the option to elect
repayment with respect to all or a portion of beneficial
interests owned by such participant or beneficial owner in
the 2026 Notes represented by such Registered Global
Security to the Depositary in accordance with the
Depositary's procedures on a form required by the Depositary
and provided by the Depositary to its participants. Neither
the Issuer nor the Trustee shall be liable for any delay in
delivering of notice to the Depositary by the participants
or owners of beneficial interests in the 2026 Notes
represented by the Registered Global Security."
"SECTION 11.14 Form of Option to Elect Repayment
The following text shall be attached to each 2026 Note:
FORM OF OPTION TO ELECT REPAYMENT ON NOVEMBER 15, 2003
I or we hereby irrevocably elect to exercise the option
to have the principal sum of $________, together with
accrued interest thereon to November 15, 2003 repaid by the
Issuer on November 15, 2003. (If less than the entire
principal amount of this Security is to be repaid, specify
the denomination or denominations (which shall be in
authorized denominations) of the Securities to be issued to
the Holder for the portion of the within Security not being
repaid (in the absence of any such specification, one such
Security will be issued for the portion not being repaid)).
Dated:
Signed: Signature Guarantee:
(Signature must
be guaranteed
by an eligible
institution within
the meaning of
Rule 17A(d)-15
under the
Securities Exchange
Act of 1934, as
amended)
Wire Transfer Instructions:
________________________
________________________
________________________
ARTICLE NINE
MISCELLANEOUS
SECTION 9.1. The Indenture, as supplemented and
amended by this First Supplemental Indenture, is in all
respects hereby adopted, ratified and confirmed.
SECTION 9.2. Paying Agent, Transfer Agent and
Registrar. The Issuer hereby appoints the Trustee as paying
agent, transfer agent and registrar for the Senior Notes and
designates the Corporate Trust Office of the Trustee as the
agency where notices and demands to or upon the Issuer in
respect of the Senior Notes or the Indenture may be served.
SECTION 9.3. Governing Law. This First Supplemental
Indenture and each Senior Note shall be deemed to be a
contract under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws
of such state without regard to conflicts of laws principles
thereof, except as may otherwise be required by mandatory
provisions of law.
SECTION 9.4. Counterparts. This First Supplemental
Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
SECTION 9.5. Trustee Disclaimer. The recitals
contained herein shall be taken as the statements of the
Issuer, and the Trustee assumes no responsibility for the
correctness of same. The Trustee makes no representations
as to the validity of this First Supplemental Indenture.
FMI\10318.5
IN WITNESS WHEREOF the parties hereto have caused this
First Supplemental Indenture to be duly executed, and the
appropriate corporate seals to be hereunto affixed and
attested, all as of November 18, 1996.
FREEPORT-McMoRan COPPER & GOLD
INC.
By:
X. Xxxxxx Xxxxxx
[CORPORATE SEAL] Vice President and
Treasurer
Attest:
By:
Xxxxxxx X. Xxxxxxxxxx, Xx.
Secretary
THE CHASE MANHATTAN BANK, as
Trustee
By:
X. Xxxxxxxx
[CORPORATE SEAL] Vice President
Attest:
By:
Xxxxxxx X. Xxxx
Assistant Vice President
FMI\10318.5
STATE OF LOUISIANA )
) ss:
PARISH OF ORLEANS )
On this 18th 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 which executed the above instrument; that
he knows the corporate seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that
it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
Notary Public
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 18th day of November, 1996 before me personally
came 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 which executed the above instrument; that she
knows the seal of said corporation; that the seal affixed to
said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said corporation, and
that she signed his name thereto by like authority.
[NOTARIAL SEAL]
Notary Public
FMI\10318.5
EXHIBIT A
[FORM OF FACE OF 2006 NOTE]
This Security is a Registered Global Security within the
meaning of the Indenture hereinafter referred to and is
registered in the name of The Depository Trust Company, a
New York corporation ("DTC") or a nominee thereof. This
Security may not be exchanged in whole or in part for a
Security in definitive registered form, and no transfer of
this Security in whole or in part may be registered in the
name of any Person other than DTC or its nominee, except in
the limited circumstances described in the Indenture.
Unless this Senior Note is presented by an authorized
representative of DTC to the Issuer (as defined below) or
its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
FREEPORT-McMoRan COPPER & GOLD INC.
7.50% Senior Note Due 2006
No. _____________ $__________ CUSIP No.:
_______
Freeport-McMoRan Copper & Gold Inc., a Delaware
corporation (hereinafter called the "Issuer," which term
shall include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby
promises to pay to Cede & Co. or registered assigns, the
principal sum of $200,000,000 Dollars at the Issuer's office
or agency for said purpose in the Borough of Manhattan, the
City of New York on November 15, 2006, in such coin or
currency of the United States of America as at the time of
payment is legal tender for the payment of public and
private debts, and to pay the interest thereon in like coin
or currency semi-annually on May 15 and November 15 of each
year, commencing with May 15, 1997, on said principal sum at
the rate of 7.50% per annum at said office or agency from
November 18, 1996 or from the most recent interest payment
date to which interest on this Senior Note has been paid or
duly provided for until payment of said principal sum has
been made or duly provided for. The interest so payable on
any May 15 or November 15 will, except as otherwise provided
in the Indenture referred to on the reverse hereof, be paid
to the Person in whose name this Senior Note is registered
at the close of business on the April 30 or October 31
preceding such May 15 or November 15, whether or not such
day is a Business Day; provided that interest may be paid,
at the option of the Issuer, if this Senior Note is no
longer in the form of a Registered Global Security, by
mailing a check therefor payable to the registered holder
entitled thereto at his last address as it appears on the
Security register. Interest on this Senior Note shall be
computed on the basis of a 360-day year consisting of twelve
30-day months.
ADDITIONAL PROVISIONS OF THIS SECURITY ARE CONTAINED ON THE
REVERSE HEREOF AND SUCH PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS
PLACE.
This Security shall not be entitled to any benefit under
the Indenture hereinafter referred to, or become valid or
obligatory for any purpose, until the Trustee under the
Indenture shall have signed the form of certificate of
authentication endorsed hereon.
In Witness Whereof, Freeport-McMoRan Copper & Gold Inc.
has caused this Instrument to be duly executed.
Dated:
FREEPORT-McMoRan COPPER & GOLD
INC.
By:
[CORPORATE SEAL]
Name:
Title:
This is one of the Securities of the series
designated herein referred to in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, Trustee
By:
Authorized Officer
[FORM OF REVERSE OF 2006 NOTE]
FREEPORT-McMoRan COPPER & GOLD INC.
7.50% Senior Note due 2006
This Security is one of a duly authorized issue of debt
securities of the Issuer designated as its 7.50% Senior
Notes Due 2006 (the "Securities"), limited to the aggregate
principal amount of $200,000,000 (except as otherwise
provided in the Indenture mentioned below), issued or to be
issued pursuant to an indenture dated as of November 15,
1996, duly executed and delivered by the Issuer to The Chase
Manhattan Bank, as trustee (herein called the "Trustee") as
the same has been amended and supplemented by the First
Supplemental Indenture, dated as of November 18, 1996,
between the Issuer and the Trustee, and as the same shall be
further amended and supplemented from time to time as
provided in the Indenture (as so amended and supplemented,
the "Indenture"). The terms of the Securities include those
in the Indenture. Reference is hereby made to the
Indenture, the First Supplemental Indenture and all other
indentures supplemental thereto for a description of the
rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the
Holders (the words "Holders" or "Holder" meaning the
registered holders or registered holder) of the Securities.
Capitalized terms used but not defined herein which are
defined in the Indenture have the meanings assigned to them
in the Indenture.
In case an Event of Default, as defined in the Indenture
with respect to the Securities, shall have occurred and be
continuing, the principal of and accrued and unpaid
interest, if any, through the date of the declaration of
acceleration on, all the Securities, may be declared due and
payable in the manner and with the effect, and subject to
the conditions, provided in the Indenture. The Indenture
provides that in certain events such declaration and its
consequences may be waived by the Holders of a majority in
aggregate principal amount of the Securities then
Outstanding and that, prior to any such declaration, such
Holders may waive any past default under the Indenture and
its consequences except a default in the payment of
principal of or interest on any of the Securities and except
a default in respect of certain covenants or other
provisions of the Indenture which may not be modified
without the consent of each Holder of an outstanding
Security. Any such consent or waiver by the Holder of this
Security (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all
future Holders and owners of this Security and any Security
which may be issued in exchange or substitution hereof or
upon registration of transfer hereof, whether or not any
notation thereof is made upon this Security or such other
Securities. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture.
The Indenture permits the Issuer and the Trustee, with
the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities, at the time
Outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the Holders of the
Securities; provided, that no such supplemental indenture
shall: (a) change the final maturity of any Security or
change the time for payment of any installment of interest
thereon, or reduce the principal amount thereof, or reduce
the rate (or alter the method of computation) of interest
thereon, or reduce (or alter the method of computation) any
amount payable on redemption or repayment thereof or change
the time of payment thereof, or make the principal thereof
or interest thereon payable in any coin or currency other
than that provided in such Security or in accordance with
the terms thereof, or reduce the amount of principal that
would be due or payable upon an acceleration of the maturity
thereof pursuant to Section 5.1 of the Indenture or the
amount thereof provable in bankruptcy pursuant to Section
5.2 of the Indenture, or alter the provisions of Section
11.1 or 11.12 of the Indenture, or impair or affect the
right of any Holder to institute suit for the payment
thereof, in each case without the consent of the Holder of
each Security so affected, provided no consent of any Holder
shall be necessary to permit the Trustee and the Issuer to
execute supplemental indentures pursuant to Section 8.1(e)
of the Indenture; or (b) reduce the percentage of principal
amount of Securities the consent of the Holders of which is
required for any such supplemental indenture to less than a
majority, or reduce the percentage of principal amount of
Securities necessary to consent to waive any past Default
under this Indenture to less than a majority, or modify any
of the provisions of Section 8.2 or Section 5.10 of the
Indenture, except to increase any such percentage or to
provide that certain other provisions of the Indenture
cannot be modified or waived, without the consent of the
Holder of each Security so affected, in each case, without
the consent of the Holder of each Security so affected.
The Securities do not have the benefit of any sinking
fund obligation.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this
Security at the place, times, and rate, and in the currency,
herein prescribed.
The Securities are issuable only as registered
Securities without coupons in denominations of $1,000 and
any integral multiple of $1,000.
At the office or agency of the Issuer referred to on the
face hereof and in the manner and subject to the limitations
provided in the Indenture, the Securities may be exchanged
for a like aggregate principal amount of Securities of other
authorized denominations.
Upon surrender for registration of transfer of this
Security at the above-mentioned office or agency of the
Issuer, a new Security or Securities of other authorized
denominations, for a like aggregate principal amount, will
be issued to the transferee as provided in the Indenture.
No service charge shall be made for any such transfer, but
the Issuer may require payment of a sum sufficient to cover
any tax, assessment or other governmental charge that may be
imposed in relation thereto.
The Securities of this series are subject to redemption,
as a whole or in part, at any time, at the option of the
Issuer, upon not less than 30 nor more than 60 days' notice
by mail, at a redemption price equal to the greater of (i)
100% of the principal amount of the Securities to be
redeemed and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 30 basis points, plus
accrued interest thereon to the date of redemption.
Subject to payment by the Issuer of a sum sufficient to
pay the amount due on redemption, interest on this Security
shall cease to accrue upon the date duly fixed for
redemption of this Security.
In the event of redemption under the circumstances
permitted by the Indenture of this Security in part only, a
new Security or Securities for the unredeemed portion
thereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
Prior to surrender of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the
Issuer or the Trustee, may deem and treat the registered
Holder hereof as the absolute owner of this Security
(whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on
account of, the principal hereof and interest hereon and
for all other purposes, and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the
principal of or interest on this Security, for any claim
based hereon or thereon, or otherwise in respect hereof or
thereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator,
shareholder, officer or director, as such, past, present or
future, of the Issuer or any successor corporation, either
directly or through the Issuer or any successor corporation,
whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New
York.
EXHIBIT B
[FORM OF FACE OF 2026 NOTE]
This Security is a Registered Global Security within the
meaning of the Indenture hereinafter referred to and is
registered in the name of The Depository Trust Company, a
New York corporation ("DTC") or a nominee thereof. This
Security may not be exchanged in whole or in part for a
Security in definitive registered form, and no transfer of
this Security in whole or in part may be registered in the
name of any Person other than DTC or its nominee, except in
the limited circumstances described in the Indenture.
Unless this Senior Note is presented by an authorized
representative of DTC to the Issuer (as defined below) or
its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
FREEPORT-McMoRan COPPER & GOLD INC.
7.20% Senior Note Due 2026
No. _____________ $__________ CUSIP No.:
_______
Freeport-McMoRan Copper & Gold Inc., a Delaware
corporation (hereinafter called the "Issuer," which term
shall include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby
promises to pay to Cede & Co. or registered assigns, the
principal sum of $250,000,000 Dollars at the Issuer's office
or agency for said purpose in the Borough of Manhattan, the
City of New York on November 15, 2026, in such coin or
currency of the United States of America as at the time of
payment is legal tender for the payment of public and
private debts, and to pay the interest thereon in like coin
or currency semi-annually on May 15 and November 15 of each
year, commencing with May 15, 1997, on said principal sum at
the rate of 7.20% per annum at said office or agency from
November 18, 1996 or from the most recent interest payment
date to which interest on this Senior Note has been paid or
duly provided for until payment of said principal sum has
been made or duly provided for. The interest so payable on
any May 15 or November 15 will, except as otherwise provided
in the Indenture referred to on the reverse hereof, be paid
to the Person in whose name this Senior Note is registered
at the close of business on the April 30 or October 31
preceding such May 15 or November 15, whether or not such
day is a Business Day; provided that interest may be paid,
at the option of the Issuer, if this Senior Note is no
longer in the form of a Registered Global Security, by
mailing a check therefor payable to the registered holder
entitled thereto at his last address as it appears on the
Security register. Interest on this Senior Note shall be
computed on the basis of a 360-day year consisting of twelve
30-day months.
ADDITIONAL PROVISIONS OF THIS SECURITY ARE CONTAINED ON THE
REVERSE HEREOF AND SUCH PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS
PLACE.
This Security shall not be entitled to any benefit under
the Indenture hereinafter referred to, or become valid or
obligatory for any purpose, until the Trustee under the
Indenture shall have signed the form of certificate of
authentication endorsed hereon.
In Witness Whereof, Freeport-McMoRan Copper & Gold Inc.
has caused this Instrument to be duly executed.
Dated:
FREEPORT-McMoRan COPPER & GOLD INC.
By:
[CORPORATE SEAL]
Name:
Title:
This is one of the Securities of the series
designated herein referred to in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, Trustee
By:
Authorized Officer
[FORM OF REVERSE OF 2026 NOTE]
FREEPORT-McMoRan COPPER & GOLD INC.
7.20% Senior Note due 2026
This Security is one of a duly authorized issue of debt
securities of the Issuer designated as its 7.20% Senior
Notes Due 2026 (the "Securities"), limited to the aggregate
principal amount of $250,000,000 (except as otherwise
provided in the Indenture mentioned below), issued or to be
issued pursuant to an indenture dated as of November 15,
1996, duly executed and delivered by the Issuer to The Chase
Manhattan Bank, as trustee (herein called the "Trustee") as
the same has been amended and supplemented by the First
Supplemental Indenture, dated as of November 18, 1996,
between the Issuer and the Trustee, and as the same shall be
further amended and supplemented from time to time as
provided in the Indenture (as so amended and supplemented,
the "Indenture"). The terms of the Securities include those
in the Indenture. Reference is hereby made to the
Indenture, the First Supplemental Indenture and all other
indentures supplemental thereto for a description of the
rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the
Holders (the words "Holders" or "Holder" meaning the
registered holders or registered holder) of the Securities.
Capitalized terms used but not defined herein which are
defined in the Indenture have the meanings assigned to them
in the Indenture.
In case an Event of Default, as defined in the Indenture
with respect to the Securities, shall have occurred and be
continuing, the principal of and accrued and unpaid
interest, if any, through the date of the declaration of
acceleration on, all the Securities, may be declared due and
payable in the manner and with the effect, and subject to
the conditions, provided in the Indenture. The Indenture
provides that in certain events such declaration and its
consequences may be waived by the Holders of a majority in
aggregate principal amount of the Securities then
Outstanding and that, prior to any such declaration, such
Holders may waive any past default under the Indenture and
its consequences except a default in the payment of
principal of or interest on any of the Securities and except
a default in respect of certain covenants or other
provisions of the Indenture which may not be modified
without the consent of each Holder of an outstanding
Security. Any such consent or waiver by the Holder of this
Security (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all
future Holders and owners of this Security and any Security
which may be issued in exchange or substitution hereof or
upon registration of transfer hereof, whether or not any
notation thereof is made upon this Security or such other
Securities. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture.
The Indenture permits the Issuer and the Trustee, with
the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities, at the time
Outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the Holders of the
Securities; provided, that no such supplemental indenture
shall: (a) change the final maturity of any Security or
change the time for payment of any installment of interest
thereon, or reduce the principal amount thereof, or reduce
the rate (or alter the method of computation) of interest
thereon, or reduce (or alter the method of computation) any
amount payable on redemption or repayment thereof or change
the time of payment thereof, or make the principal thereof
or interest thereon payable in any coin or currency other
than that provided in such Security or in accordance with
the terms thereof, or reduce the amount of principal that
would be due or payable upon an acceleration of the maturity
thereof pursuant to Section 5.1 of the Indenture or the
amount thereof provable in bankruptcy pursuant to Section
5.2 of the Indenture, or alter the provisions of Section
11.1 or 11.12 of the Indenture, or impair or affect the
right of any Holder to institute suit for the payment
thereof or the repayment thereof at the option of the
Holder, in each case without the consent of the Holder of
each Security so affected, provided no consent of any Holder
shall be necessary to permit the Trustee and the Issuer to
execute supplemental indentures pursuant to section 8.1(e)
of the Indenture; or (b) reduce the percentage of principal
amount of Securities the consent of the Holders of which is
required for any such supplemental indenture to less than a
majority, or reduce the percentage of principal amount of
Securities necessary to consent to waive any past Default
under this Indenture to less than a majority, or modify any
of the provisions of Section 8.2 or Section 5.10 of the
Indenture, except to increase any such percentage or to
provide that certain other provisions of the Indenture
cannot be modified or waived, without the consent of the
Holder of each Security so affected, in each case, without
the consent of the Holder of each Security so affected.
The Securities do not have the benefit of any sinking
fund obligation.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this
Security at the place, times, and rate, and in the currency,
herein prescribed.
The Securities are issuable only as registered
Securities without coupons in denominations of $1,000 and
any integral multiple of $1,000.
At the office or agency of the Issuer referred to on the
face hereof and in the manner and subject to the limitations
provided in the Indenture, the Securities may be exchanged
for a like aggregate principal amount of Securities of other
authorized denominations.
Upon surrender for registration of transfer of this
Security at the above-mentioned office or agency of the
Issuer, a new Security or Securities of other authorized
denominations, for a like aggregate principal amount, will
be issued to the transferee as provided in the Indenture.
No service charge shall be made for any such transfer, but
the Issuer may require payment of a sum sufficient to cover
any tax, assessment or other governmental charge that may be
imposed in relation thereto.
The Securities of this series are subject to redemption,
as a whole or in part, at any time, at the option of the
Issuer, upon not less than 30 nor more than 60 days' notice
by mail, at a redemption price equal to the greater of (i)
100% of the principal amount of the Securities to be
redeemed and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 30 basis points, plus
accrued interest thereon to the date of redemption.
Subject to payment by the Issuer of a sum sufficient to
pay the amount due on redemption, interest on this Security
shall cease to accrue upon the date duly fixed for
redemption of this Security.
In the event of redemption under the circumstances
permitted by the Indenture of this Security in part only, a
new Security or Securities for the unredeemed portion
thereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
This Security may be repaid on November 15, 2003, at the
option of the Holder of this Security, at 100% of the
principal amount, together with accrued interest thereon to
November 15, 2003. In order for a Holder to exercise this
option, the Issuer must receive at its office or agency in
New York, New York maintained for such purpose pursuant to
Section 3.2 of the Indenture, during the period beginning on
September 15, 2003 and ending at 5:00 p.m. (New York City
time) on October 15, 2003 (or if October 15, 2003 is not a
Business Day, the next succeeding Business Day), (a)
appropriate wire instructions directing a wire transfer to
an account with a banking institution located in the United
States of America (which may be included in the form
entitled "Option to Elect Repayment on November 15, 2003")
and (b) either (i) this Security with the form entitled
"Option to Elect Repayment on November 15, 2003" set forth
below duly completed or (ii) a telegram, telex, facsimile
transmission or letter from a member of a national
securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust
company in the United States setting forth the name of the
Holder of this Security, the principal amount of this
Security, the portion of the principal amount of this
Security to be repaid, the certificate number or a
description of the tenor and terms of this Security, a
statement that the option to elect repayment is being
exercised thereby and a guarantee that this Security to be
repaid with the form entitled "Option to Elect Repayment on
November 15, 2003" attached to this Security duly completed
will be received by the Issuer not later than five Business
Days after the date of such telegram, telex, facsimile
transmission or letter, and this Security and form duly
completed must be received by the Issuer by such fifth
Business Day. Any such notice received by the Issuer during
the period beginning on September 15, 2003 and ending at
5:00 p.m. (New York City Time) on October 15, 2003 shall be
irrevocable. The repayment option may be exercised by the
Holder of this Security for less than the entire amount of
the Securities held by such Holder, as long as the principal
amount that is to be repaid is equal to $1,000 or an
integral multiple of $1,000. All questions as to validity,
form, eligibility (including time of receipt) and acceptance
of any Security for repayment will be determined by the
Issuer, whose determination will be final and binding.
Prior to surrender of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the
Issuer or the Trustee, may deem and treat the registered
Holder hereof as the absolute owner of this Security
(whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on
account of, the principal hereof and interest hereon and
for all other purposes, and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the
principal of or interest on this Security, for any claim
based hereon or thereon, or otherwise in respect hereof or
thereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator,
shareholder, officer or director, as such, past, present or
future, of the Issuer or any successor corporation, either
directly or through the Issuer or any successor corporation,
whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New
York.
FORM OF OPTION TO ELECT REPAYMENT ON NOVEMBER 15, 2003
I or we hereby irrevocably elect to exercise the option
to have the principal sum of $________, together with
accrued interest thereon to November 15, 2003 repaid by the
Issuer on November 15, 2003. (If less than the entire
principal amount of this Security is to be repaid, specify
the denomination or denominations (which shall be in
authorized denominations) of the Securities to be issued to
the Holder for the portion of the within Security not being
repaid (in the absence of any such specification, one such
Security will be issued for the portion not being repaid)).
Dated:
Signed: Signature Guarantee:
(Signature must be guaranteed
by an eligible institution within
the meaning of Rule 17A(d)-15
under the Securities Exchange
Act of 1934, as amended)
Wire Transfer Instructions:
________________________
________________________
________________________
