exv10w34



 






Exhibit 10.34




Execution Copy




RECLAMATION AND REMEDIATION TRUST AGREEMENT




          AGREEMENT made as of December 22, 2005 (the “Agreement”), by and between Phelps Dodge
Corporation (the “Corporation”), a New York corporation, as grantor, and Wells Fargo Delaware Trust
Company, a Delaware limited purpose trust company (the “Trustee”), as trustee.




WITNESSETH:




          WHEREAS, the Corporation has mining and manufacturing facilities in the United States and
other regions of the world, which include open-pit mining, underground mining, sulfide ore
concentrating, leaching, solution extraction, electrowinning, smelting and refining;




          WHEREAS, the Corporation’s operations are subject to stringent laws and regulations relating
to improving or maintaining environmental quality;




          WHEREAS, under such environmental laws and regulations, the Corporation is required, among
other things, to perform certain reclamation and remediation activities, to make sure that its
operations do not pose a current or future hazard to public health and safety, that its mining
locations will be stabilized to minimize future impact to the environment and that air and water
resources will be protected (collectively, the “R&R Activities”) and in connection therewith to
guarantee or otherwise provide financial assurance that funds will be available when needed for
such R&R Activities;




          WHEREAS, the Corporation wishes to dedicate and segregate funds for such R&R Activities to
ensure that the Corporation will have the necessary funds to support these activities;




          WHEREAS, the Corporation is hereby establishing a trust (the “Trust”) for the purpose of
accumulating assets to assist it in financing or otherwise performing its R&R Activities and
related matters, to which Trust the Corporation is transferring, and will in the future transfer,
cash and/or other property, and any such contributions together with earnings (including income and
appreciation) and losses (including depreciation and loss of principal) thereon (hereinafter called
the “Trust Fund”) shall be held in trust; and




          WHEREAS, the Corporation desires that the Trustee hold and administer all assets transferred
to the Trust Fund by the Corporation and the Trustee is willing to hold, administer and dispose of
such assets pursuant to the terms of this Agreement.




          NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained,
the Corporation and the Trustee hereby agree as follows:




 









 








ARTICLE I.




Establishment of Trust




          1.1 The Trust is intended to be a grantor trust, of which the Corporation is the grantor,
within the meaning of subpart E, part I, subchapter J, Chapter 1, subtitle A of the Internal
Revenue Code of 1986, as amended from time to time (the “Code”), and shall be construed
accordingly.




          1.2 The principal of the Trust, and any earnings thereon, shall be held separate and apart
from other funds of the Corporation by the Trustee in trust for the benefit of the Corporation and
its subsidiaries listed on Schedule A (the “Beneficiaries”). The Corporation may amend
Schedule A to add or remove subsidiaries by delivery of written notice to the Trustee.
Such instrument shall be identified as a successor Schedule A to this Agreement that
supersedes the preceding Schedule A, and shall be effective upon delivery to the Trustee in
accordance with Section 13.1.




          1.3 The purposes of the Trust are to engage in the following activities (the “Permitted
Purposes”): (i) provide a source of funds for R&R Activities or otherwise support or facilitate any
R&R Activity, (ii) guarantee, or provide any other form of financial assurance with respect to, R&R
Activities, (iii) provide a source of funds for research and development related to R&R Activities,
(iv) activities that are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith and (v) such other activities as may be required in
connection with conservation of the Trust Fund and distributions to the Beneficiaries.




          1.4 The Trust hereby established is revocable by the Corporation.




ARTICLE II.




Funding of Trust




          2.1 The Corporation hereby deposits with the Trustee in trust the sum of One Hundred Million
Dollars ($100,000,000), which becomes the initial principal of the Trust to be held, administered
and disposed of by the Trustee as provided in this Agreement. The Corporation may at any time, or
from time to time, make additional deposits of cash or other property to the Trustee in trust, to
augment the principal to be held, administered and disposed of by the Trustee as provided in this
Agreement. Neither the Trustee nor any Beneficiary shall have any right to compel such additional
deposits.




          2.2 Notwithstanding anything else to the contrary contained herein, the Trustee shall be
responsible only for contributions actually received by it hereunder.




2









 








ARTICLE III.




Disposition of Income




          3.1 During the term of this Trust, all income received by the Trust, net of expenses and
taxes, shall be accumulated and reinvested, pursuant to Section 6.2, to the extent that it is not
used by the Trustee to make payments or distributions required by this Agreement.




ARTICLE IV.




Distribution from the Trust




          4.1 After the Trust Fund is funded pursuant to Section 2.1 hereof, the Trustee shall from time
to time, make distributions or payments out of the Trust Fund, in cash or in property, to such
Beneficiaries, in such manner and in such amounts as requested by a Beneficiary and the
Corporation, but only to the extent that there are sufficient assets in the Trust Fund to make such
distributions or payments and solely for the Permitted Purposes. Disbursements shall be made from
the Trust Fund to the designated Beneficiary upon presentation to the Trustee of an executed
Certificate in the form of Exhibit 1.




          4.2 Disbursements shall be made from the Trust Fund to the Corporation, whether or not for
Permitted Purposes, in such amounts as the Corporation may direct from time to time upon
presentation to the Trustee of an executed Certificate in the form of Exhibit 2.




          4.3 Disbursements shall be made from the Trust Fund to defray reasonable expenses incurred by
the Trustee in connection with the administration of the Trust, including without limitation, the
agreed upon compensation of the Trustee and reasonable expenses of the Trustee, and reasonable fees
and expenses of independent legal counsel and any other independent consultants retained by the
Trustee to assist the Trustee in carrying out its duties and responsibilities under this Agreement.




          4.4 Disbursements shall also be made from the Trust Fund to pay all taxes levied against the
Trust itself and, in addition, so long as the Internal Revenue Service and/or any state or local
taxing authority does not dispute that the Trust established by this Agreement is a grantor trust
under Section 671 et seq. of the Internal Revenue Code of 1986, as amended (or any
successor provision), of which the Corporation is the grantor and the Trust itself has no
obligation to pay any income taxes, then disbursements shall be made from the Trust on an annual
basis to the Corporation upon presentation to the Trustee of an executed Certificate in the form of
Exhibit 3 hereto in an amount equal to twenty-five percent (25%) of the Trust’s Deemed
Taxable Income (as defined below) for the immediately preceding calendar year. The Corporation and
the Trustee agree that it is proper, in all tax reporting by the Trust, to treat the Trust as a
grantor trust of which the Corporation is the grantor and that they will so treat the Trust.




3









 








For purposes of the foregoing, the term “Deemed Taxable Income” means, for any calendar year,
the taxable investment income, including capital gains, of the Trust less the Trust’s expenses and
losses (as shown in the Form 1041 Information Statement provided to the Corporation by the Trustee
for that calendar year adjusted if necessary pursuant to the following sentence), except that
investment income shall be included in Deemed Taxable Income only to the extent that such income
would be includable in determining taxable income for federal income tax purposes if the Trust were
a separate corporate entity, and expenses and losses shall be taken into account in determining
Deemed Taxable Income only if they would be deductible in determining taxable income for federal
income tax purposes if the Trust were a separate corporate entity. For purposes of computing
Deemed Taxable Income, the Trust’s losses, if any, shall be carried over and deducted against
subsequent years’ Deemed Taxable Income, or carried back and deducted against prior years’ Deemed
Taxable Income, until fully utilized to the extent such losses would be deductible in determining
the taxable income for federal income tax purposes if the Trust were a separate corporate entity.



          4.5 Upon presentation to the Trustee of an executed Certificate in the form of Exhibit
4 hereto, all monies and assets remaining in the Trust, including earnings and profits, less
the final administration expenses of the Trust, shall be paid to the Corporation, and the Trust
shall be terminated.




ARTICLE V.




Financial Assurance




          5.1 Upon presentation to the Trustee by the Corporation and the applicable Beneficiary of an
executed Certificate in the form of Exhibit 5, the Trustee shall segregate the funds
specified in such Certificate in the manner described in such Certificate for the purpose of
providing financial assurance on behalf of the applicable Beneficiary upon the terms and conditions
set forth in such Certificate and any descriptive documentation accompanying it.




ARTICLE VI.




Powers, Duties and Responsibility of Trustee




          6.1 The Trustee acknowledges and agrees that it is under a duty to exercise reasonable care
with respect to the custody of the Trust Fund; provided, however, that the Trustee’s sole duty with
respect to the custody of the Trust Fund shall be to deal with such property in a similar manner as
the Trustee deals with similar property for its own account, subject to the protections and
limitations on liability afforded to the Trustee under this Agreement. The Trustee further
acknowledges that, in performing its duties under this Agreement, it is a fiduciary to the Trust
and shall at all times act in a fiduciary capacity to the Trust in the exercise of its duties and
responsibilities under this Trust Agreement. To the extent that, at law or in equity, the Trustee
has duties (including fiduciary duties) and liabilities relating thereto to the Trust,




4









 








to the Corporation or to the Beneficiaries, the Trustee shall not be liable to the Trust, to
the Corporation or to any Beneficiary for such Trustee’s good faith reliance on the provisions of
this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and
liabilities of the Trustee otherwise existing at law or in equity, are agreed by the Trust, the
Corporation and the Beneficiaries to replace such other duties and liabilities of the Trustee.



          6.2 Notwithstanding any other provision hereof, the Trust Fund shall be held, invested and
reinvested by the Trustee in accordance with this Section 6.2 under the written directions of the
Corporation to be provided to the Trustee by any of the individuals listed on Schedule B
(the “Authorized Persons”). The Corporation may, by delivery of written notice to the Trustee, add
or replace any of the Authorized Persons. Such instrument shall be identified as a successor
Schedule B to this Agreement that supersedes the preceding Schedule B, and shall be
effective upon delivery to the Trustee in accordance with Section 13.1. The Trustee shall not be
liable for any failure to maximize the income earned on that portion of the Trust Fund as is from
time to time invested or reinvested as set forth above. Furthermore, the Trustee shall have no
liability for loss on an investment made in accordance with this Section 6.2. The Trustee shall
not be liable for interest on uninvested funds.




          6.3 The Trustee shall, if so instructed by the Corporation, enter into investment management
agreements concerning the investment of the funds in the Trust with one or more independent
investment managers. All investments shall be held by the Trustee as custodian of the Trust Fund.




          6.4 Whenever the Trustee is required in accordance with the terms hereof to make a
disbursement of funds from the Trust, if, after application of all available cash and cash
equivalents that can be liquidated without an interest cost or penalty, liquidation of another
investment is necessary to make any such disbursement, the Trustee shall seek directions from any
of the individuals listed on Schedule B. The Trustee shall have no liability with respect
to any interest cost or penalty on the liquidation of any Permitted Trust Investment pursuant to
this Section 6.4.




          6.5 The Trustee shall act in good faith; provided, however, that the Trustee shall incur no
liability to any person for any action taken pursuant to a direction, request or approval given by
the Corporation which is in conformity with the terms of this Agreement and is given in writing by
the Corporation. In the event of a dispute, the Trustee may apply to a court of competent
jurisdiction to resolve the dispute.




          6.6 If the Trustee undertakes or defends any litigation arising in connection with this Trust,
the Corporation agrees to indemnify the Trustee against the Trustee’s costs, expenses and
liabilities (including, without limitation, reasonable attorneys’ fees and expenses) relating
thereto and to be primarily liable for such payments unless the Trustee is determined, in a final
adjudication, to have been guilty of willful misconduct or gross negligence in the performance (or
non-performance) of its duties under the Trust. If the Corporation does not pay such costs,
expenses and liabilities in a




5









 








reasonably timely manner, the Trustee may pay such costs, expenses and liabilities with assets
of the Trust. The Corporation shall remain liable for such costs, expenses and liabilities to the
extent the Trust has insufficient funds.



          6.7 The Trustee may consult with legal counsel (who may also be counsel for the Corporation
generally) with respect to any of its duties or obligations hereunder, and the reasonable fees and
expenses of such legal counsel will be paid by the Corporation, provided that if the Corporation
does not pay such fees and expenses within a reasonable time, the Trustee may pay such fees and
expenses with assets of the Trust.




          6.8 The Trustee may act directly or through its agents, accountants, actuaries, investment
advisors, financial consultants, attorneys or other professionals (collectively, “Professionals”)
to assist it in performing any of its duties or obligations hereunder, and the reasonable fees and
expenses of such Professionals shall be paid by the Corporation, provided that if such fees and
expenses are not promptly paid by the Corporation, the Trustee may pay such fees and expenses with
assets of the Trust. The Corporation shall remain liable for such costs, expenses and liabilities
to the extent the Trust has insufficient funds. The Trustee shall not be liable for the conduct or
misconduct of such Professionals if such Professionals shall have been selected by the Trustee in
good faith.




          6.9 Subject to Sections 6.1 and 6.2 hereof, the Trustee shall have, without exclusion, all
powers conferred on Trustees by applicable law, unless expressly provided otherwise herein.




          6.10 Subject to Sections 6.1 and 6.2 hereof, but in amplification of (and not in limitation
of) the powers given in Article VI hereof, the Trustee shall have the following powers and
authority in the administration of the Trust Fund at the direction of the Corporation:





     (a) To invest all contributions, investments, and reinvestments thereof and all
additions thereto by way of contributions, earnings and increments.




     (b) To sell for cash or on credit, to grant options, convert, redeem, exchange for
other securities or other property, or otherwise to dispose of any securities or other
property at any time held.




     (c) To settle, compromise or submit to arbitration, any claims, debts or damages, due
or owing to or from the Trust, to commence or defend suits or legal proceedings and to
represent the Trust in all suits or legal proceedings.




     (d) To exercise any conversion privilege and/or subscription right available in
connection with any securities or other property at any time held; to oppose or to consent
to the reorganization, consolidation, merger, or readjustment of the finances of any
corporation, company or association or to the sale, mortgage, pledge or lease of the
property of any corporation, company or



6









 








association any of the securities of which may at any time be held and to do any act
with reference thereto, including the exercise of options, the making of agreements or
subscriptions, which may be deemed necessary or advisable in connection therewith, and to
hold and retain any securities or other property so acquired.




     (e) To exercise, personally or by general or by limited power of attorney, any right,
including the right to vote, appurtenant to any securities or other property held at any
time.




     (f) To borrow money from any lender in such amounts and upon such terms and conditions
as shall be deemed advisable or proper to carry out the purposes of the Trust and to pledge
any securities or other property for the repayment of any such loan at the direction, or
with the approval, of an Authorized Person.




     (g) To hold cash uninvested for a reasonable period of time under the circumstances
without liability for interest, pending investment thereof or the payment of expenses or
making distributions therewith.




     (h) To register any securities held hereunder in the name of the Trustee or in the
name of a nominee with or without the addition of words indicating that such securities are
held in a fiduciary capacity and to hold any securities in bearer form.




     (i) To make, execute and deliver, as Trustee, any and all conveyances, contracts,
waivers, releases or other instruments in writing necessary or proper for the
accomplishment of any of the foregoing powers.




     (j) Subject to the express provisions of this Agreement, to invest and reinvest all or
any portion of the Trust Fund.



          6.11 The Trustee shall have no duty to see to any recording, filing or registration of any
instrument (including any financing or continuation statement) or any filing under tax or
securities laws or any rerecording, refiling, or reregistration thereof.




ARTICLE VII.




Trustee Compensation




          7.1 The Trustee shall be paid such reasonable compensation as shall from time to time be
agreed upon by the Trustee and the Corporation. The Trustee’s compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Corporation shall reimburse the
Trustee for all reasonable and documented out-of-pocket disbursements, fees and expenses incurred
by the Trustee in connection




7









 








with the performance of its duties under this Agreement. Such expenses may include the
reasonable compensation and out-of-pocket expenses of the Trustee’s agents and counsel.



ARTICLE VIII.




Reporting and Quarterly Valuation




          8.1 The Trustee shall, so long as any monies or other assets remain in the Trust, prepare and
distribute to the Corporation reports on a quarterly basis.




ARTICLE IX.




Trustee Protection




          9.1 The Corporation shall indemnify and hold harmless the Trustee for any action, or failure
to take action, in reliance in good faith upon any certification, instruction, direction or
approval of the Corporation.




          9.2 The Corporation shall indemnify and hold harmless the Trustee for acting upon any
instrument, certificate, or paper believed by it to be genuine and to be signed or presented by the
proper person or persons, and the Trustee shall be under no duty to make any investigation or
inquiry as to any statement contained in any such writing but may accept the same as conclusive
evidence of the truth and accuracy of the statements therein contained. The Trustee (in its
individual and trust capacities) and its officers, directors, affiliates, successors, assigns and
agents (collectively, the “Indemnified Parties”) shall be indemnified and held harmless by the
Corporation from and against, any and all liabilities, obligations, losses, damages, taxes, claims,
actions and suits, and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever (collectively, “Expenses”)
which may at any time be imposed on, incurred by, or asserted against any Indemnified Party in any
way relating to or arising out of this Agreement, the Trust assets, the administration of the Trust
assets or the action or inaction of the Trustee hereunder, except only that the Indemnified Parties
shall not be entitled to indemnification from and against Expenses arising or resulting from its
own willful misconduct or gross negligence. The indemnities contained in this Section shall
survive the resignation or removal of the Trustee or the termination of this Agreement.




          9.3 The Trustee shall not be liable for the proper application of any part of the Trust Fund
if distributions are made in accordance with written instructions furnished to the Trustee by the
Corporation in accordance with this Agreement. All persons dealing with the Trustee are released
from inquiry into the decision or authority of the Trustee and from seeing to the application of
any moneys, securities or other property paid or delivered to the Trustee.




8









 








          9.4 The Trustee shall not be liable hereunder for any loss or diminution of the Trust Fund
resulting from any action taken or omitted unless caused by Trustee’s gross negligence or willful
misconduct.




          9.5 The duties and obligations of the Trustee acting as Trustee hereunder shall be strictly
limited to those expressly imposed upon the Trustee by this Agreement and the Trustee shall have no
implied duties or obligations.




          9.6 The Trustee shall not be liable for default or failure of any other party to carry out
their obligations under this Agreement. The Trustee shall have no liability for following the
direction or instruction of the Corporation.




          9.7 The Trustee shall not be required to act if it reasonably determines or is advised by
counsel that action will likely create personal liability, is contrary to law or conflicts with
other obligations unless it receives indemnity or other security satisfactory to it. Furthermore,
the Trustee may request instructions from the Corporation whenever it is unable to decide between
alternative courses of action or there exists an ambiguous provision. Where, after request to the
Corporation for instruction, no instruction has been received, the Trustee may but is not obligated
to, take no action.




          9.8 The Trustee shall have no duty to manage, register, record, sell or otherwise deal with
Trust assets, or otherwise take any action in connection with any document contemplated hereby,
except as expressly provided in this Agreement or pursuant to instruction.




          9.9 The Trustee acts under this Agreement solely in its capacity as Trustee and not in its
individual capacity.




          9.10 The Trustee shall not be responsible to the Corporation, the Beneficiaries or any other
person for any recitals or other statements contained in this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of the Trust Fund or this Agreement nor
shall the Trustee be held accountable for the Corporation’s use of the proceeds of the Trust Fund.




          9.11 No provision of this Agreement shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.




          9.12 The Trustee shall not be liable for any error of judgment made in good faith by a
responsible officer of the Trustee, unless it is proven that the Trustee was grossly negligent, or
committed willful misconduct or acted in bad faith, in ascertaining the pertinent facts or
otherwise.




9









 








          9.13 The Trustee shall not be required to give any bond or surety in respect of the execution
of its trusts and powers or in respect of this Agreement.




          9.14 In no event shall the Trustee be liable for any damages in the nature of special,
indirect or consequential damages, however styled, including, without limitation, lost profits, or
for any losses due to forces beyond the control of the Trustee, including, without limitation,
strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural
catastrophes or acts of God and interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services provided to the Trustee by third parties.




ARTICLE X.




Resignation or Removal of Trustee; Appointment of Successor Trustee




          10.1 At any time the Trustee may be removed by the Corporation on thirty (30) days notice or
upon shorter notice accepted by the Trustee. A Trustee may resign at any time by written notice to
the Corporation, which resignation shall be effective ninety (90) days after receipt of such notice
by the Corporation unless the Corporation agrees otherwise. Notwithstanding the foregoing
provisions of this Article X, any Trustee which is removed or resigns shall continue to serve until
its successor Trustee accepts the appointment and receives delivery of the Trust Fund.




          10.2 If notice is given that the Trustee is being removed or is resigning, the Corporation
shall appoint a successor Trustee hereof prior to the effective date of the Trustee’s resignation
or removal. The appointment of a successor Trustee shall be by a written instrument delivered to
the Trustee then acting hereunder and the successor Trustee being appointed.




          10.3 The appointment of a successor Trustee shall be effective when accepted in writing by the
new Trustee. The new Trustee shall have all the rights, powers and duties of the prior Trustee,
including ownership rights in Trust Fund assets.




          10.4 A successor Trustee need not examine the records and acts of any prior Trustee. The
successor Trustee shall not be responsible for, and the Corporation shall indemnify and defend the
successor Trustee from any claim or liability resulting from, any action or inaction of any prior
Trustee or from any other past event, or any condition existing at the time it becomes successor
Trustee.




          10.5 If the Trustee ceases to act as Trustee and appointment of a successor Trustee is made,
all Trust Fund assets shall subsequently be transferred to the successor Trustee. The transfer
shall be completed within thirty (30) days after the appointment of the successor Trustee becomes
effective, unless the Corporation extends the time limit.




10









 








          10.6 The appointment or succession of a person as successor Trustee in accordance with this
Agreement shall be effective without any court proceeding or decree.




          10.7 Any person into which the Trustee may be merged or with which it may be consolidated, or
any Person resulting from any merger or consolidation to which the Trustee shall be a party, or any
person which succeeds to all or substantially all of the corporate trust business of the Trustee,
shall be the successor Trustee under this Agreement without the execution, delivery or filing of
any paper or instrument or further act to be done on the part of the parties hereto, except as may
be required by applicable law.




ARTICLE XI.




Instructions to the Trustee




          11.1 A Certificate submitted in support of a disbursement request or financing assurance shall
be substantially in the written form described herein and such Certificate shall be signed by an
authorized official of the Corporation. All other orders, instructions, or approvals required by
this Agreement to be given to the Trustee by the Corporation, shall be in writing, signed by an
authorized official thereof. The Trustee shall have the right to assume, in the absence of written
notice to the contrary, that no event constituting a change or a termination of the authority to
act of any authorized official has occurred. The Trustee shall have no duty to act in the absence
of such written Certificates and directions.




          11.2 The Trustee is authorized to communicate with and take direction with respect to
ministerial matters from the contact Person of the Corporation. The contact Person for the
Corporation is Stanton K. Rideout, Phelps Dodge Tower, One North Central Avenue, Phoenix, Arizona
85004, (602-366-8589). The corporation may change its contact Person by written notice to the
Trustee.




ARTICLE XII.




Amendment or Termination




          12.1 The Corporation may amend this Agreement (including making an amendment which terminates
the Trust), without the consent of the Trustee, by written instrument executed by the Corporation
effective upon delivery of the instrument to the Trustee in accordance with Section 13.1; provided,
however, that the written approval of the Trustee shall be required for amendments of Sections 2.2,
6.1, 6.2, 6.4, 6.5, 6.6, 6.7, 6.8, 7.1, Article IX, Article X, Article XI and Article XII to the
extent that such amendments adversely affect the rights, indemnities, immunities and obligations of
the Trustee.




11









 








ARTICLE XIII.




Notices




          13.1 Any notice or communication which the Corporation or the Trustee may be required or may
desire to give to another entity or individual under any provision of this Agreement shall be given
in writing and personally delivered to, or mailed or delivered by overnight courier service or sent
by telex, telecopier or email to the address (or addresses) given below.




	 	 	 	 	 
	 

	 	If to the Corporation:
	 	Stanton K. Rideout, Treasurer
	 

	 	 	 	Phelps Dodge Corporation
	 

	 	 	 	One North Central Avenue
	 

	 	 	 	Phoenix, AZ 85004
	 

	 	 	 	Phone: (602) 366-8589
	 

	 	 	 	Fax: (602) 366-7132
	 

	 	 	 	Email: srideout@phelpsdodge.com
	 
	 	 	 	 
	 

	 	If to Trustee:
	 	Ann Roberts Dukart
	 

	 	 	 	Vice President
	 

	 	 	 	Wells Fargo Delaware Trust Company
	 

	 	 	 	919 North Market Street
	 

	 	 	 	Suite 700
	 

	 	 	 	Wilmington, DE 19801
	 

	 	 	 	Tel: 302-575-2004
	 

	 	 	 	Fax: 302-575-2006
	 

	 	 	 	E-mail: ann.roberts.dukart@wellsfargo.com






Any notice which is personally delivered shall be deemed to have been given on the date it is
personally delivered. Any notice which is mailed shall be deemed to have been given on the third
business day after deposit in the mail, registered or certified mail, postage prepaid and return
receipt requested. Any notice which is delivered by overnight courier service shall be deemed to
have been given on the business day after deposit with such courier service. Any notice which is
transmitted by telex, telecopy or email shall be deemed to have been given on the day that such
notice is transmitted.



          The Corporation or the Trustee may change the address to which notices, requests and other
communications are to be sent to it, by giving written notice of such address change to the party
in conformity with this Article, but such change shall not be effective until notice of such change
has been received by the other party.




12









 








ARTICLE XIV.




Miscellaneous




          14.1 If any one or more of the covenants, agreements, provisions or terms of this Agreement
(including any amendment or supplement hereto) shall be for any reason whatsoever held invalid or
unenforceable, then such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions and terms of this Agreement, as the same may be
amended or supplemented, and shall in no way affect the validity or enforceability of the other
covenants, agreements, provisions or terms of this Agreement or any amendment or supplement hereto.




          14.2 This Agreement and the Trust created herein shall in all respects be governed by, and
construed in accordance with, the laws of the State of Delaware (excluding conflict of law rules),
including all matters of construction, validity and performance, unless such laws are pre-empted by
the federal laws of the United States. Sections 3540 and 3561 of Title 12 of the Delaware Code
shall not apply to the Trust.




          14.3 All covenants and agreements contained herein shall be binding upon, and inure to the
benefit of, the Trustee and its successors and assigns and the Corporation and its successors and
assigns, all as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Trustee or the Corporation shall bind the successors and assigns of
such Person..




          14.4 This Agreement may be executed in two or more counterparts, each of which shall be an
original, but all such counterparts shall together constitute one and the same agreement.




          14.5 This Agreement represents the entire agreement between the parties hereto with respect to
the subject matter hereof, and supersedes all prior agreements and understandings between the
parties, whether written or oral.




          14.6 Nothing in this Agreement, whether express or implied, shall be construed to give to any
Person other than the Trustee, the Beneficiaries and the Corporation any legal or equitable right,
remedy or claim in the Trust Fund or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.




13









 








          IN WITNESS WHEREOF, this instrument has been executed as of the day and year first above
written.




	 	 	 	 	 	 	 
	 	 	PHELPS DODGE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ S.K. Rideout
 

Name: Stanton K. Rideout
	 	 
	 

	 	 	 	Title: Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO DELAWARE TRUST COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	/s/ A.R. Dukart	,	 as Trustee
	 

	 	 
Title:
	 	 

Vice President
	 	 







14









 








Schedule A




BENEFICIARIES




AAV Corporation

Ajo Improvement Company

Alambres y Cables de Panama, S.A. (ALCAP)

Alambres y Cables Venezolanos, C.A. (ALCAVE)

ALCAP Commercial, S.A. (ALCOMER)

Alcave Trading

Amax Arizona, Inc.

Amax de Chile, Inc.

Amax Energy Inc.

Amax Exploration (Ireland), Inc.

Amax Exploration, Inc.

Amax Metals Recovery, Inc.

Amax Nickel Overseas Ventures, Inc.

Amax Realty Development, Inc.

Amax Research & Development, Inc.

Amax Specialty Coppers Corporation

Amax Specialty Metals (Driver), Inc.

Amax Zinc (Newfoundland) Limited

American Metal Climax, Inc.

Ametalco, Inc.

Ametalco Limited

Amur Minerals LLC

Annavas Development Co., Ltd.

Arizona Community Investment Corporation

Ashfork Mines Limited

Balkan Metals and Minerals EOOD

Bisbee Queen Mining Company

Blackwell Zinc Company, Inc.

Byner Cattle Company

Cables Electricos Ecuatorianos, C.A. (CABLEC)

Cahosa, S.A.

Cates Douglas Corporation

Caucasus Metal and Minerals LLC

Chino Acquisition Inc.

Chino Mines Company

Chui Ltd.

CIS Venture Kazakstan, L.L.C.

Climax Canada Ltd.




A-1









 





Schedule A (cont’d)




Climax Engineered Materials, LLC

Climax Molybdenum Asia Corporation

Climax Molybdenum B.V.

Climax Molybdenum Company

Climax Molybdenum GmbH

Climax Molybdenum Marketing Corporation

Climax Molybdenum U.K. Limited

Cobre Cerrillos S.A. (COCESA)

Cobre Mining Company

Cocesa Ingenieria y Construccion, S.A. (COCETEL)

Cocetel Ingenieria y Construccion, C.A. (Venezuela)

Compania Contractual Minera Candelaria

Compania Contractual Minera Ojos del Salado

Conducen Phelps Dodge Centro America El Salvador, S.A. de C.V.

CONDUCEN, S.A.

Conductores Electricos de Centro America, S.A. (CONELCA)

Copper Market, Inc.

Copreco, L.L.C.

Cyprus Amax Australia Corporation

Cyprus Amax Chile Holdings, Inc.

Cyprus Amax Indonesia Corporation

Cyprus Amax Leasing Corporation

Cyprus Amax Minerals Company

Cyprus Canada Inc.

Cyprus Climax Metals Company

Cyprus Copper Marketing Corporation

Cyprus Copperstone Gold Corporation

Cyprus El Abra Corporation

Cyprus Exploration and Development Corporation

Cyprus Gold Company

Cyprus Gold Exploration Corporation

Cyprus Metals Company

Cyprus Metals Exploration Corporation

Cyprus Mexico Corporation

Cyprus Minera de Chile, Inc.

Cyprus Mines Corporation

Cyprus Pima Mining Company

Cyprus Pinos Altos Corporation

Cyprus Speciality Metals Company

Cyprus Tohono Corporation

Cyprus Zinc Corporation




A-2









 





Schedule A (cont’d)




Dodge & James Insurance Company, Ltd.

Electroconductores de Honduras, S.A. de C.V. (ECOHSA)

Fabrica de Conductores Electricos, S.A. (FACELEC)

Faru Ltd.

Geomining L.L.P.

Habirshaw Cable and Wire Corporation

Hidalgo Mining, LLC

Inversiones de Cobre Chile Co., S.A.

James Douglas Insurance Company, Ltd.

Kamchatka Minerals LLC

Kinetics Climax, Inc.

Kumakata Mining Company, Inc.

Lambunao Mining Company, Inc.

Las Quintas Serenas Water Co.

Lundin Holdings Ltd.

Macote Mining Company, Inc.

Makilala Mining Company, Inc.

Malampay Mining Company, Inc.

Malibato Mining Company, Inc.

Mambusao Mining Company, Inc.

Mboko Ltd.

Metal Fabricators of Zambia Limited (ZAMEFA)

Metallic Ventures, Inc.

Minera Aurex (Chile) Limitada

Mineracao Floresta Doeste Ltda.

Minera Cobre Chile Co., S.A.

Minera Cobre Chile Limitada

Minera Cuicuilco S.A. de C.V.

Minera Cyprus Amax Chile Limitada

Minera Cyprus Antacori Corporation

Minera Cyprus Chile Limitada

Minera Las Clauditas, S.A.

Minera Phelps Dodge del Peru S.A.C.

Minera Phelps Dodge Mexico, S de RL de CV

Mining Development Investments Ltd.

Missouri Lead Smelting Company

Mofia Ltd.

Mt. Emmons Mining Company

Pacific Western Land Company

PD Candelaria, Inc.




A-3









 





Schedule A (cont’d)




PD Cayman Corporation

PD Cobre, Inc.

PD Colombia S.A.

PDEP Inc.

PD Las Bambas Corporation

PDM Energy, L.L.C.

PD Ojos del Salado, Inc.

PD Peru, Inc.

PD Receivables LLC

PDSMM Holding Ltd.

PD Wire & Cable Sales Corporation

Phelps Dodge Africa Cable Corporation

Phelps Dodge Ajo, Inc.

Phelps Dodge Australasia, Inc.

Phelps Dodge Bagdad, Inc.

Phelps Dodge Brasil Ltda.

Phelps Dodge Centro America Honduras, S.A. de C.V.

Phelps Dodge Centro America, S.A. Nicaragua

Phelps Dodge Chicago Rod, Inc.

Phelps Dodge China Corporation

Phelps Dodge Chino, Inc.

Phelps Dodge Chita, LLC

Phelps Dodge Congo S.P.R.L.

Phelps Dodge Corporation of Canada, Limited

Phelps Dodge Development Corporation

Phelps Dodge do Brasil Mineracao Ltda

Phelps Dodge Dublin

Phelps Dodge Energy Services, LLC

Phelps Dodge Enfield Corporation

Phelps Dodge Exploracion Mexico, S.A. de C.V.

Phelps Dodge Exploration Corporation

Phelps Dodge Exploration Moscow, LLC

Phelps Dodge Exploration Sweden AB

Phelps Dodge Hidalgo, Inc.

Phelps Dodge High Performance Conductors of NJ, Inc.

Phelps Dodge Holdings Mexico, S.A. de C.V.

Phelps Dodge Industries, Inc.

Phelps Dodge International Corporation

Phelps Dodge Kamchatka, LLC

Phelps Dodge Katanga Corporation




A-4









 





Schedule A (cont’d)




Phelps Dodge Khabarovsk, LLC

Phelps Dodge Magadan, LLC

Phelps Dodge Magnet Wire (Austria) GmbH

Phelps Dodge Mercantile Company

Phelps Dodge-Metdist Mining India Pvt. Ltd.

Phelps Dodge Miami, Inc.

Phelps Dodge Mining Services, Inc.

Phelps Dodge Mining (Zambia) Limited

Phelps Dodge Molybdenum Corporation

Phelps Dodge Morenci, Inc.

Phelps Dodge of Africa, Ltd.

Phelps Dodge Overseas Capital Corporation

Phelps Dodge Power Marketing, LLC

Phelps Dodge Refining Corporation

Phelps Dodge Safford, Inc.

Phelps Dodge Sales Company, Incorporated

Phelps Dodge Sierrita, Inc.

Phelps Dodge Suzhou Holdings, Inc.

Phelps Dodge (Suzhou) Magnet Wire Company Ltd.

Phelps Dodge Thailand Limited

Phelps Dodge Tyrone, Inc.

Phelps Dodge Yantai Cable Company

Phelps Dodge Yantai China Holdings Inc.

Proveedora de Cables y Alambres PDCA Guatemala, S.A.

Pt Cyprus Amax Indonesia

PT Kutaraja Tembaga Raya

Servicios Especiales Nacionales, S.A. de C.V.

Servicios Phelps Dodge Mexico, S.A. de C.V.

Shilka Minerals

Silver Springs Ranch, Inc.

Sociedad Contractual Minera El Abra

Sociedad Minera Cerro Verde S.A.A.

Somin Ltd. (partnership)

Soner, Inc.

South Danube Metals, D.O.O., Beograd

Tambuli Mining Co., Inc.

Tembo Ltd.

Tenke Fungurume Mining S.A.R.L.

The Morenci Water & Electric Company

Tucson, Cornelia and Gila Bend Railroad Co.




A-5









 





Schedule A (cont’d)




Tyrone Mining, LLC

United States Metals Refining Company

Warren Company

Western Nuclear Australia Limited

Western Nuclear, Inc.




A-6









 








Schedule B




AUTHORIZED PERSONS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name	 	Phone Number	 	Fax Number	 	Address	 	Email	 	Signature	 
	 
	 	 	 	 	 	Phelps Dodge Corporation	 	 	 	 	 	 
	Stanton K. Rideout
	 	(602) 366-8589	 	(602) 366-7132	 	One North Central Avenue	 	srideout@phelpsdodge.com	 	 	 	 
	 
	 	 	 	 	 	Phoenix, AZ  85004	 	 	 	 	 	 
	 
	 	 	 	 	 	Phelps Dodge Corporation	 	 	 	 	 	 
	Carol L. Lindsay
	 	(602) 366-7810	 	(602) 453-1674	 	One North Central Avenue	 	cmlindsay@phelpsdodge.com	 	 	 	 
	 
	 	 	 	 	 	Phoenix, AZ  85004	 	 	 	 	 	 
	 
	 	 	 	 	 	Phelps Dodge Corporation	 	 	 	 	 	 
	Scott Barker
	 	(602) 366-8016	 	(602) 366-7323	 	One North Central Avenue	 	sbarker@phelpsdodge.com	 	 	 	 
	 
	 	 	 	 	 	Phoenix, AZ  85004	 	 	 	 	 	 








B-1









 








Exhibit 1




BENEFICIARY DISBURSEMENT CERTIFICATE




Reference is made to the RECLAMATION AND REMEDIATION TRUST AGREEMENT, entered into as of
                    , 2006 (the “Trust Agreement”), by and among Wells Fargo Delaware Trust Company, as
trustee (the “Trustee”), and Phelps Dodge Corporation, a New York corporation, as grantor (the
“Grantor,” or the “Corporation”).



Pursuant to Section 4.1, and in accordance with Section 1.4, of the Trust Agreement the Corporation
and [NAME OF BENEFICIARY] direct the Trustee to disburse to [NAME OF BENEFICIARY] $                    .



IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed by its authorized
officers as of this ___day of                     ,                     .



	 	 	 	 	 	 	 
	 	 	PHELPS DODGE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF BENEFICIARY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 







 









 








Exhibit 2




CORPORATION DISBURSEMENT CERTIFICATE




Reference is made to the RECLAMATION AND REMEDIATION TRUST AGREEMENT, entered into as of
                    , 2006 (the “Trust Agreement”), by and among Wells Fargo Delaware Trust Company, as
trustee (the “Trustee”), and Phelps Dodge Corporation, a New York corporation, as grantor (the
“Grantor,” or the “Corporation”).



Pursuant to Section 4.2 of the Trust Agreement the Corporation directs the Trustee to disburse to
the Corporation $                    .



IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed by its authorized
officers as of this ___day of                     ,                     .




	 	 	 	 	 	 	 
	 	 	PHELPS DODGE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 







 









 








Exhibit 3




TAX DISBURSEMENT CERTIFICATE




Reference is made to the RECLAMATION AND REMEDIATION TRUST AGREEMENT, entered into as of
                    , 2006 (the “Trust Agreement”), by and among Wells Fargo Delaware Trust Company, as
trustee (the “Trustee”), and Phelps Dodge Corporation, a New York corporation, as grantor (the
“Grantor” or the “Corporation”). Capitalized terms not otherwise defined herein shall have the
meanings granted to them by the Trust Agreement.



Pursuant to Section 4.4 of the Trust Agreement, the undersigned directs the Trustee to transfer to
the Grantor the sum of $                    , which represents 25% of the Fund’s Deemed Taxable Income for
the immediately preceding calendar year.



IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed by its authorized
officers as of this ___day of                     ,                     .



	 	 	 	 	 	 	 
	 

	 	PHELPS
	 	DODGE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 







 









 








Exhibit 4




TERMINATION DISBURSEMENT CERTIFICATE




Reference is made to the RECLAMATION AND REMEDIATION TRUST AGREEMENT, entered into as of
                    , 2006 (the “Trust Agreement”), by and among Wells Fargo Delaware Trust Company, as
trustee (the “Trustee”), and Phelps Dodge Corporation, a New York corporation, as grantor (the
“Grantor”).



Pursuant to Section 4.5 of the Trust Agreement, the undersigned directs the Trustee to disburse to
the Grantor the balance of Trust Fund less final Trust administration expenses.



IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed by its authorized
officers as of this ___day of                     ,                     .



	 	 	 	 	 	 	 
	 	 	PHELPS DODGE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 







 









 








Exhibit 5




FINANCIAL ASSURANCE REQUEST




Reference is made to the RECLAMATION AND REMEDIATION TRUST AGREEMENT, entered into as of
                    , 2006 (the “Trust Agreement”), by and among Wells Fargo Delaware Trust Company, as
trustee (the “Trustee”), and Phelps Dodge Corporation, a New York corporation, as grantor (the
“Grantor”). Capitalized terms not otherwise defined herein shall have the meanings granted to them
by the Trust Agreement.



Pursuant to Section 5.1, and in accordance with Section 1.4, of the Trust Agreement, the
Corporation and [NAME OF BENEFICIARY] direct the Trustee to deposit $[___] in a separate account
segregated from the other assets of the Trust Fund for the purpose of providing financial assurance
on behalf of [NAME OF BENEFICIARY] pursuant to the terms of the documents attached to this
certificate as Schedule A. As compensation for providing such financial assurance, the
Trust shall be entitled to the amounts set forth in the Agreement in accordance with the terms and
conditions of the Agreement.



IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed by its authorized
officers as of this ___day of                     ,                     .



	 	 	 	 	 	 	 
	 	 	PHELPS DODGE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF BENEFICIARY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






 









 






Schedule A




Financial Assurance Documents