SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended September 30, 1995
Commission File Number: 1-9916
Freeport-McMoRan Copper & Gold Inc.
Incorporated in Delaware 74-2480931
(IRS Employer Identification No.)
1615 Poydras Street, New Orleans, Louisiana 70112
Registrant's telephone number, including area code: (504)582-4000
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days. Yes X No
--- ---
On September 30, 1995, there were issued and outstanding 84,100,108 shares
of the registrant's Class A Common Stock, par value $0.10 per share, and
117,909,323 shares of its Class B Common Stock, par value $0.10 per share.
FREEPORT-McMoRan COPPER & GOLD INC.
TABLE OF CONTENTS
Page
Part I. Financial Information
Financial Statements:
Condensed Balance Sheets 3
Statements of Income 4
Statements of Cash Flow 5
Notes to Financial Statements 6
Remarks 7
Management's Discussion and Analysis of Financial Condition
and Results of Operations 8
Part II. Other Information 14
Signature 15
Exhibit Index E-1
FREEPORT-McMoRan COPPER & GOLD INC.
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements.
---------------------
FREEPORT-McMoRan COPPER & GOLD INC.
CONDENSED BALANCE SHEETS (Unaudited)
September 30, December 31,
1995 1994
------------- ------------
ASSETS (In Thousands)
Current assets:
Cash and short-term investments $ 33,476 $ 44,252
Accounts receivable 225,562 234,224
Inventories 383,578 314,022
Prepaid expenses and other 20,280 10,896
---------- ----------
Total current assets 662,896 603,394
Property, plant and equipment, net 2,767,599 2,360,489
Other assets 81,696 76,314
---------- ----------
Total assets $3,512,191 $3,040,197
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities $ 408,747 $ 407,478
Current portion of long-term debt and
short-term borrowings 84,364 24,098
---------- ----------
Total current liabilities 493,111 431,576
Long-term debt, less current portion 975,641 525,612
Accrued postretirement benefits and other
liabilities 175,944 213,043
Deferred income taxes 329,094 292,580
Minority interests 94,163 82,404
Mandatory redeemable preferred stock 500,007 500,007
Stockholders' equity 944,231 994,975
---------- ----------
Total liabilities and stockholders' equity $3,512,191 $3,040,197
========== ==========
The accompanying notes are an integral part of these financial statements.
FREEPORT-McMoRan COPPER & GOLD INC.
STATEMENTS OF INCOME (Unaudited)
Three Months Ended Nine Months Ended
September 30, September 30,
--------------------- ----------------------
1995 1994 1995 1994
-------- -------- ---------- --------
(In Thousands, Except Per Share Amounts)
Revenues $469,812 $313,384 $1,300,087 $860,989
Cost of sales:
Production and delivery 216,216 192,292 661,952 529,430
Depreciation and
amortization 33,888 18,387 83,996 53,827
-------- -------- ---------- --------
Total cost of sales 250,104 210,679 745,948 583,257
Exploration expenses (5,722) 9,941 13,888 29,525
General and
administrative
expenses 54,934 29,403 117,138 78,844
-------- -------- ---------- --------
Total costs and
expenses 299,316 250,023 876,974 691,626
-------- -------- ---------- --------
Operating income 170,496 63,361 423,113 169,363
Interest expense, net (17,737) - (29,536) -
Other income (expense),
net (2,761) 216 (4,399) (685)
-------- -------- ---------- --------
Income before income
taxes and minority
interests 149,998 63,577 389,178 168,678
Provision for income
taxes (63,041) (30,157) (164,964) (77,658)
Minority interests in
net income of
consolidated
subsidiaries (12,809) (6,592) (38,486) (16,027)
-------- -------- ---------- --------
Net income 74,148 26,828 185,728 74,993
Preferred dividends (13,615) (13,365) (40,577) (38,253)
-------- -------- ---------- --------
Net income applicable
to common stock $ 60,533 $ 13,463 $ 145,151 $ 36,740
======== ======== ========== ========
Net income per share
of common stock $.30 $.07 $.71 $.18
==== ==== ==== ====
Average common shares
outstanding 204,058 205,933 205,056 205,692
======= ======= ======= =======
Dividends per common
share $.15 $.15 $.45 $.45
==== ==== ==== ====
The accompanying notes are an integral part of these financial statements.
FREEPORT-McMoRan COPPER & GOLD INC.
STATEMENTS OF CASH FLOW (Unaudited)
Nine Months Ended
September 30,
--------------------
1995 1994
-------- --------
(In Thousands)
Cash flow from operating activities:
Net income $185,728 $ 74,993
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 83,996 53,827
Deferred income taxes 36,514 29,049
Recognition of unearned revenue (36,207) -
Minority interests' share of net income 38,486 16,027
(Increase) decrease in working capital:
Accounts receivable 18,383 8,283
Inventories (74,178) (36,969)
Prepaid expenses and other (9,327) (1,950)
Accounts payable and accrued liabilities (16,350) 27,336
Other 22,378 (7,648)
-------- --------
Net cash provided by operating activities 249,423 162,948
-------- --------
Cash flow from investing activities:
Capital expenditures:
PT-FI (361,378) (481,840)
RTM (124,756) (51,613)
Investment in Freeport Copper Company (25,000) -
Other (2,168) -
-------- --------
Net cash used in investing activities (513,302) (533,453)
-------- --------
Cash flow from financing activities:
Net proceeds from sale of:
Preferred stock - 252,985
9 3/4% senior notes - 116,276
Proceeds from debt, net 265,350 137,540
Proceeds from infrastructure financing, net 228,899 17,319
Cash dividends paid:
Common stock (92,163) (92,612)
Preferred stock (37,876) (33,930)
Minority interests (27,228) (18,282)
Purchase of FCX common shares (84,717) -
Other 838 -
-------- --------
Net cash provided by financing activities 253,103 379,296
-------- --------
Net increase (decrease) in cash and
short-term investments (10,776) 8,791
Cash and short-term investments at
beginning of year 44,252 13,798
-------- --------
Cash and short-term investments at
end of period $ 33,476 $ 22,589
======== ========
The accompanying notes are an integral part of these financial statements.
FREEPORT-McMoRan COPPER & GOLD INC.
NOTES TO FINANCIAL STATEMENTS
1. OWNERSHIP OF FCX COMMON STOCK
In July 1995, Freeport-McMoRan Inc. (FTX) completed its restructuring by
distributing all the shares of Freeport-McMoRan Copper & Gold Inc. (FCX)
Class B common stock to FTX common stockholders. As a result of this
distribution, FTX no longer owns any interest in FCX.
Prior to the distribution, The RTZ Corporation PLC (RTZ) purchased
23.9 million shares of FCX Class A common stock (approximately 12 percent
of the outstanding common stock of FCX) from FTX. Additionally, FCX and
RTZ have agreed in principle to establish joint ventures whereby RTZ is to
become a 40 percent joint venture partner in FCX's future production
expansions and exploration and development activities in Indonesia. Under
these contractual arrangements, RTZ has agreed to pay the next $100 million
of exploration expenses with expenditures beyond $100 million shared 60
percent by FCX and 40 percent by RTZ. As of September 30, 1995, FCX had
recorded a $20.1 million receivable from RTZ for exploration costs incurred
from May 1995 through September 1995, including $6 million of previously
reported second-quarter 1995 exploration expenses which were reversed as a
credit to third-quarter 1995 exploration expenses. In FCX's Block A, RTZ
has agreed under these contractual arrangements to fund up to $750 million
of future expansion projects and receive 100 percent of incremental cash
flow until RTZ recoups FCX's 60 percent share of costs with interest from
60 percent of incremental cash flow, after which incremental cash flow
would be shared 60 percent by P.T. Freeport Indonesia Company (PT-FI) and
40 percent by RTZ. FCX will continue to receive 100 percent of cash flow
from its existing production facilities as specified by the contractual
arrangements. RTZ and FCX have agreed, that for strategic reasons, they
will not proceed with the previously announced plan to have FCX sell a 25
percent interest in Rio Tinto Minera, S.A. to RTZ.
2. CREDIT FACILITIES
In July 1995, the FTX credit agreement in which PT-FI participated was
modified to become a separate $550 million facility for PT-FI ($480 million
available at October 20, 1995) and a new $200 million facility was arranged
for FCX and PT-FI ($59 million available at October 20, 1995). The new
variable rate facilities mature in December 1999 and have covenants and
security requirements similar to the previous FTX credit agreement. As
part of FTX's restructuring, FCX assumed a guarantee of $90 million of FM
Properties Inc. debt previously guaranteed by FTX and is receiving an
annual three percent fee from FTX on the amount guaranteed.
3. INTEREST COSTS
Interest expense excludes capitalized interest of $10.2 million and $8.5
million in the third quarter of 1995 and 1994, respectively, and $39.2
million and $21.3 million in the first nine months of 1995 and 1994,
respectively.
4. RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the first nine months of 1995
and 1994 was 6 to 1 and 7.2 to 1, respectively. For this calculation,
earnings are income from continuing operations before income taxes,
minority interests and fixed charges. Fixed charges include interest and
that portion of rent deemed representative of interest.
----------------------
Remarks
The information furnished herein should be read in conjunction with FCX's
financial statements contained in its 1994 Annual Report to stockholders
and incorporated by reference in its Annual Report on Form 10-K.
The information furnished herein reflects all adjustments which are, in the
opinion of management, necessary for a fair statement of the results for
the periods. All such adjustments are, in the opinion of management, of a
normal recurring nature.
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.
RESULTS OF OPERATIONS
Freeport-McMoRan Copper & Gold Inc. (FCX) operates through its majority-
owned subsidiaries, P.T. Freeport Indonesia Company (PT-FI), P.T. Irja
Eastern Minerals Corporation (Eastern Mining) and Rio Tinto Minera, S.A.
(RTM). PT-FI's operations involve the exploration for and development,
mining and milling of ore containing copper, gold and silver in Irian Jaya,
Indonesia. Eastern Mining conducts mineral exploration activities in Irian
Jaya. RTM is engaged in the smelting and refining of copper concentrates
in Spain.
Third Quarter Nine Months
------------------- --------------------
1995 1994 1995 1994
------ ------ -------- ------
(In Millions, Except Per Share Amounts)
Revenues $469.8 $313.4 $1,300.1 $861.0
Operating income 170.5 a,b 63.4 423.1 a,c 169.4
Net income to common stock 60.5 a,b 13.5 145.2 a,c 36.7
Net income per share .30 a,b .07 .71 a,c .18
Operating income (loss) by subsidiary:
PT-FI $183.9 $70.9 $460.2 $184.9
RTM (7.1) (2.9) (16.8) (0.3)
Eastern Mining 2.2 (3.0) (3.9) (4.5)
Intercompany eliminations
and other d (8.5) (1.6) (16.4) (10.7)
------ ----- ------ ------
$170.5 $63.4 $423.1 $169.4
====== ===== ====== ======
a. Includes a $21.4 million noncash charge ($11.9 million to net income or
$0.06 per share) under FCX's incentive compensation program resulting from
the rise in FCX's common stock price during the quarter.
b. Includes a $6 million credit ($4.3 million to net income or $0.02 per
share) for exploration costs incurred in the second quarter of 1995 (Note
1).
c. Includes a $12.5 million noncash charge ($7 million to net income or
$0.03 per share) for a materials and supplies inventory reserve adjustment
in connection with the completion of PT-FI's expansion program.
d. The profit on PT-FI's sales to RTM is not reflected in FCX's
consolidated results until the completion of the smelting and refining
process and subsequent sale by RTM. The increased level of PT-FI
concentrate sales to RTM resulting from the expanded smelter capacity will
cause FCX's consolidated quarterly earnings to move up or down depending on
the timing of the shipments. The intercompany elimination of the profit on
the PT-FI sales to RTM is expected to increase beginning in the fourth
quarter of 1995.
FCX's third-quarter and nine-month 1995 revenues rose significantly,
reflecting record copper and gold sales levels achieved because of higher
mill throughput, recovery rates and copper realizations. A robust demand
for copper during 1995 has led to a drawdown of copper stocks held by
exchanges and stronger than expected copper prices. Treatment charges and
royalties increased because of the higher sales volumes. A reconciliation
of revenues between the periods follows (in millions):
Third Nine
Quarter Months
------- ---------
Revenues - 1994 $313.4* $ 861.0*
Increases (decreases):
RTM revenues, net of eliminations (19.9) 16.7
PT-FI revenues:
Volumes:
Copper 93.2 183.5
Gold 55.2 113.4
Price realizations:
Copper 49.8 161.1
Gold 0.1 0.4
Treatment charges, royalties and other (22.0) (36.0)
------ --------
Revenues - 1995 $469.8* $1,300.1*
====== ========
* Includes net reductions totaling $17.5 million and $21.3 million for the
third-quarter and nine-month periods of 1994, respectively, and $23.7
million and $55.4 million for the 1995 periods, respectively, recognized
under PT-FI's copper price protection program.
Fourth-quarter 1995 PT-FI sales, including sales to RTM, are projected
to total approximately 300 million pounds of copper and 400,000 ounces of
gold. For 1995, as FCX was completing its major expansion, it entered into
a series of contracts during periods of copper price uncertainty and
volatility to establish fixed prices on a portion of its copper production
and to provide floor prices on a portion of its copper production.
Management's present intention is to provide a floor price for its future
copper sales through put option contracts, when attainable at an acceptable
cost, to protect operating cash flow from the impact of potentially
significant declines in copper prices while providing for full
participation in potentially higher prices. During the fourth quarter of
1995, PT-FI will realize $1.16 per pound on 137.2 million pounds of copper
sales and has established a minimum average price of $0.83 per pound on the
remaining fourth-quarter copper sales with full participation in prices
above that amount. For 1996 and the first quarter of 1997, PT-FI has
established a minimum price of $0.90 per pound on 1.2 billion pounds of
copper sales, with full participation in prices above that amount. As
conditions warrant, PT-FI may modify or extend its existing programs. At
September 30, 1995, $29.2 million of cost related to the price protection
program is included in inventory.
At September 30, 1995, copper sales totaling 346.5 million pounds
remained to be contractually priced. However, as a result of PT-FI's
hedging activities only 242.3 million of these pounds, which are recorded
at an average of $1.32 per pound, are subject to adjustment in future
periods because of price changes. Subsequent to September 30, 1995, copper
prices have declined which, unless prices increase, would result in a
downward adjustment to fourth-quarter 1995 revenues.
PT-FI OPERATIONS Third Quarter Nine Months
------------------- -----------------
1995 1994 1995 1994
------- ------- ------- -------
Ore milled (MTPD) 122,200 69,900 106,900 71,500
Copper grade (%) 1.32 1.56 1.31 1.44
Gold grade (grams per MT) 1.28 1.37 1.32 1.28
Recovery rate (%)
Copper 86.8 83.5 85.1 83.6
Gold 78.1 73.5 74.7 72.0
Copper (000s of recoverable pounds)
Production 274,300 178,300 694,400 499,800
Sales 258,200 169,400 673,800 493,900
Average realized price a $1.24 $1.05 $1.26 $1.02
Gold (recoverable ounces)
Production 348,500 200,700 893,800 557,200
Sales 338,700 194,200 879,200 580,900
Average realized price $382.27 $381.89 $380.67 $380.21
Gross profit per pound of copper (cents):
Average realized price a 124.3 105.0 125.9 101.8
----- ----- ----- -----
Production costs:
Site production and delivery 48.2 54.9 54.5b 58.5
Gold and silver credits (51.4) (44.6) (50.7) (45.2)
Treatment charges 19.3 24.2 19.5 23.9
Royalty on metals 4.4 3.4 4.3 2.3
----- ----- ----- -----
Cash production costs 20.5 37.9 27.6 39.5
Depreciation and amortization 11.0 7.5 10.2 7.5
----- ----- ----- -----
Total production costs 31.5 45.4 37.8 47.0
----- ----- ----- -----
Revenue adjustments c (3.8) (0.3) (1.9) (0.6)
----- ----- ----- -----
Gross profit per pound of
copper 89.0 59.3 86.2 54.2
===== ===== ===== =====
a. Excluding amounts recognized under PT-FI's copper price protection
program, realizations would have been $1.32 and $1.13 per pound for the
third quarter of 1995 and 1994, respectively, and $1.33 and $1.04 per pound
for the nine-month period of 1995 and 1994, respectively.
b. Excludes the materials and supplies inventory reserve adjustment
discussed earlier (1.9 cents per pound).
c. Reflects adjustments primarily for prior period concentrate sales and
amortization of the cost of the copper price protection program.
Mill throughput averaged a record 122,200 metric tons of ore per day
(MTPD) for the 1995 third quarter and is expected to be sustained at
approximately 125,000 MTPD. With the expansion completed, PT-FI is
focusing on maximizing efficiencies. Cash production costs for the third-
quarter 1995 averaged $0.205 per pound of copper. PT-FI intends to
continue to fine-tune its operations to achieve cost efficiencies and
maximum cash flows from its expanded operations.
Gold and silver credits per pound increased primarily because of a
rise in comparative gold grades and recovery rates. Per pound treatment
charges declined because of reduced rates negotiated at the end of 1994
resulting from the overall tightness in the copper concentrates market,
somewhat offset by higher price participation payments. Based on current
market conditions, treatment charge rates for a large portion of 1996
projected sales will be negotiated in the fourth quarter of 1995; average
treatment charges may increase somewhat in 1996 but are expected to remain
below 1994 levels. Unit royalties rose because of increased copper prices,
as PT-FI's copper royalty rate varies from 1.5 percent to 3.5 percent
depending on the price of copper.
In April 1995 PT-FI increased its depreciation rate to 11 cents per
pound to include the additional capital expenditures to support the
expanded operations. Future changes to the depreciation rate will depend
on future capital costs and changes in ore reserve estimates.
RTM OPERATIONS
Third Quarter Nine Months
------------------ -----------------
1995 1994 1995 1994
------- ------- ------- -------
Concentrate treated (MT) 117,100 120,200 291,400 364,600
Anode production (000s of pounds) 76,700 86,400 199,800 261,900
Cathode production (000s of
pounds) 70,800 79,200 201,300 233,300
RTM's smelter was shutdown for approximately six weeks during the
second quarter of 1995 to tie-in expansion equipment and for maintenance
turnarounds. During the third-quarter 1995, the smelter was shutdown again
for one week because of the curtailment of cooling water at RTM's
facilities caused by a labor strike at an adjacent facility. Additionally
in July 1995, RTM sold its mining operations incurring a $2.3 million loss.
Significantly lower treatment charge rates, somewhat offset by higher
price participation, have adversely affected RTM's operating results
throughout 1995. Also negatively impacting 1995 results has been the
strengthening of the Spanish peseta against the U.S. dollar throughout most
of 1995 which, at current operating levels, has an approximately $1 million
impact on RTM's annual earnings and cash flow for each one peseta change in
the exchange rate.
OTHER FINANCIAL RESULTS
FCX reported a $5.7 million credit for exploration costs in the third
quarter of 1995 after reversing costs charged to expense in May and June
1995 which will be reimbursed by The RTZ Corporation PLC (RTZ) (Note 1).
Exploration activities within PT-FI's Block A Contract of Work (COW) area
continue to yield promising results, particularly at the Lembah Tembaga and
Kucing Liar prospects. FCX previously announced the delineation of a
geologic resource of 90-100 million metric tons of mineralization averaging
approximately 1.6 percent copper equivalents at the Lembah Tembaga
prospect, while drilling at the Kucing Liar prospect indicates
approximately 200-350 million metric tons of mineralization averaging
approximately 2-4 percent copper equivalents. Drilling is also continuing
within Block B and the Eastern Mining blocks, yielding promising results.
FCX's general and administrative expenses were $117.1 million for the
nine months ended September 30, 1995 compared with $78.8 million in the
1994 period. Third-quarter 1995 general and administrative expenses
include a $21.4 million charge under FCX's established management incentive
compensation program resulting from an increase in the price of FCX Class B
common stock during the quarter. Increased general and administrative
expenses were also required because of additional personnel and
administrative efforts to manage the expanded operations.
FCX's total interest cost (before capitalization) rose to $68.8 million
for the nine-month 1995 period from $21.3 million in the 1994 period
primarily caused by higher average debt levels. Because of the significant
expansion projects at PT-FI and RTM, all interest was capitalized during
1994 and the first quarter of 1995. As expansion activities are completed,
interest costs are charged as expense prospectively. The PT-FI expansion
was completed during the second quarter of 1995. The RTM expansion is
expected to be substantially complete by year-end.
FCX's effective tax rate was 42 percent and 46 percent for the nine-
month period of 1995 and 1994, respectively. PT-FI's COW provides a 35
percent income tax rate and a 15 percent withholding on dividends paid to
FCX by PT-FI and on interest for debt incurred after the signing of the
COW. No income tax provision or benefit is recorded at RTM, which is
subject to taxation in Spain, because RTM did not generate taxable income
and has significant tax benefit carryforwards.
CAPITAL RESOURCES AND LIQUIDITY
Net cash provided by operating activities rose to $249.4 million for the
first nine months of 1995, compared with $162.9 million for the 1994
period, primarily because of higher net income. The increase in
inventories reflects an increase in concentrate inventory primarily caused
by PT-FI production levels exceeding budget. Cash flow used in investing
activities reflects a decrease in PT-FI capital expenditures with the
completion of the expansion earlier this year. RTM expenditures increased
because of the smelter expansion. Cash flow provided by financing
activities totaled $253.1 million in 1995 compared with $379.3 million in
1994. The 1995 period included $228.9 million of proceeds from
infrastructure financing and the 1994 period included $369.3 million from
issuances of public securities. During the nine month period of 1995, FCX
acquired 3.9 million of its shares for $84.7 million.
In September 1995, FCX announced an open market share purchase program
for up to 20 million shares, in total, of its Class A and Class B common
shares representing approximately 10 percent of its shares outstanding.
The timing of purchases is dependent upon many factors, including the price
of common shares, the company's business and financial position, and
general economic and market conditions.
PT-FI's capital expenditures for the remainder of 1995 are expected to
approximate $100 million primarily for infrastructure assets. Expenditures
will be funded by operating cash flow, further sales of infrastructure
assets, the bank credit facility (Note 2) and other financing sources.
Additionally, a feasibility study to expand PT-FI's current milling
capacity to 175,000-200,000 MTPD is under way with a possible increase to
the 200,000-230,000 MTPD level depending on the future results of FCX's
exploration activities. RTZ will finance up to $750 million for further
expansion projects in the current Block A mining area (Note 1).
In September 1995, FCX paid Freeport-McMoRan Inc. $25 million cash for
100 percent of the stock of Freeport Copper Company whose sole asset is a
50 percent interest in a joint venture with ASARCO Santa Cruz, Inc.
controlling approximately 7,600 contiguous acres in Arizona. An
exploratory drilling program in this area has identified a significant
copper ore resource, with considerable potential for additional ore. The
joint venture is involved in a research project for an experimental in-situ
leaching process to mine the copper ore.
RTM has a turnkey contract to expand its smelter capacity to 270,000
metric tons of metal per year and has obtained $290 million of project
financing, nonrecourse to FCX, including a working capital line. During
1995, RTM entered into $160 million of interest rate swaps maturing in five
years at an average fixed rate of 6.1 percent. The expansion project
continues within budget and on schedule for substantial completion by year-
end. As a result of its expansion, RTM will receive over $50 million in
grants from the Spanish government over the next 1 1/2 years. RTM sold its
mining operations during the third quarter and, in exchange for assuming
certain RTM liabilities, RTM will make cash payments totaling approximately
$37 million to the buyers. The initial payment was funded with a bridge
loan secured by future grant receipts. The remaining approximately $19
million, which is payable over the next 2 1/2 years, may be funded by
operating cash flow, bank loans, the Spanish government grants or FCX.
RTM's future operating cash flow will be determined by the supply and
demand for copper smelting and refining capacity, smelting and refining
production rates and the exchange rate between the U.S. dollar and Spanish
peseta. PT-FI has a long-term contract to provide the smelter with a
significant portion of its copper concentrate requirements.
In January 1995, FCX agreed in principle to form a joint venture, 20
percent owned by FCX, to develop a 200,000 metric tons of metal per year
copper smelter in Gresik, Indonesia. A feasibility study and financing for
the estimated $550 million aggregate project cost, plus approximately $100
million of working capital, are expected to be completed by year-end or
early 1996. Construction is expected to begin late this year. Upon
completion of RTM's smelter expansion and the proposed Gresik smelter, FCX
anticipates that approximately 70 percent of PT-FI's annual concentrate
production at today's throughput rates will be sold to affiliates at market
prices.
In September 1995, the FCX Board of Directors raised its regular
quarterly cash dividend 50 percent to $0.225 per share for its Class A and
Class B common stock. On October 5, 1995, the FCX Board of Directors
declared a cash dividend of $0.225 per share on FCX's Class A and Class B
common stock, payable November 1, 1995.
--------------------
The results of operations reported and summarized above are not necessarily
indicative of future operating results.
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
--------------------------------
(a) The exhibits to this report are listed in the Exhibit Index
appearing on Page E-1 hereof.
(b) During the quarter for which this report is filed, the
registrant filed one Current Report on Form 8-K, dated July
5, 1995, reporting information under Item 1 and Item 7.
SIGNATURE
----------
Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
FREEPORT-McMoRan COPPER & GOLD INC.
By: /s/ John T. Eads
--------------------------------
John T. Eads
Controller - Financial Reporting
(authorized signatory and
Principal Accounting Officer)
Date: October 25, 1995
EXHIBIT INDEX
--------------
Sequentially
Numbered
Number Description Page
- ------ ----------- ------------
2.1 Distribution Agreement dated as of July 5, 1995
between Freeport-McMoRan Inc. ("FTX") and Freeport-
McMoRan Copper & Gold Inc. ("FCX"). Incorporated
by reference to Exhibit 2.1 to the Quarterly Report
on Form 10-Q of FTX for the quarter ended September
30, 1995 (the "FTX Third Quarter Form 10-Q").
4.1 Fifth Amendment dated as of July 17, 1995 to the
Credit Agreement dated as of October 27, 1989, as
amended and restated as of June 1, 1993, and as
further amended through the Fourth Amendment,
Consent and Limited Waiver thereto dated as of
November 23, 1994, among P.T. Freeport Indonesia
Company ("PT-FI"), FCX, FTX, First Trust of New
York, National Association, as PT-FI Trustee,
Chemical Bank, as agent, and The Chase Manhattan
Bank (National Association), as documentary agent.
4.2 Credit Agreement dated as of June 30, 1995 among
PT-FI, FCX, the several financial institutions that
are parties thereto, First Trust of New York,
National Association, as PT-FI Trustee, Chemical
Bank, as agent, and The Chase Manhattan Bank
(National Association), as documentary agent.
4.3 Credit Agreement dated as of June 30, 1995 among FM
Properties Operating Co. ("FMPOC"), FTX, FCX,
certain banks, Chemical Bank, as Administrative
Agent and Collateral Agent, and The Chase Manhattan
Bank (National Association), as Documentary Agent.
Incorporated by reference to Exhibit 4.2 to the
FTX Third Quarter Form 10-Q.
4.4 FCX Guaranty Agreement dated as of July 17, 1995.
4.5 Second Amended and Restated Note Agreement dated as
of June 30, 1995 among FMPOC, FTX, FCX, Chemical
Bank, and Hibernia National Bank, individually and
as Agent. Incorporated by reference to Exhibit 4.4
to the FTX Third Quarter Form 10-Q.
11.1 Computation of Net Income per Common and Common
Equivalent Share
27.1 Financial Data Schedule
Exhibit
EXECUTION COPY
FIFTH AMENDMENT dated as of July 17,
1995 (this "Amendment"), to the Credit
Agreement dated as of October 27, 1989, as
previously amended through the Fourth
Amendment, Consent and Limited Waiver thereto
dated as of November 23, 1994 (as heretofore
amended, the "Existing Credit Agreement"),
among P.T. FREEPORT INDONESIA COMPANY, a
limited liability company organized under the
laws of Indonesia and also domesticated in
Delaware ("FI"), FREEPORT-McMoRAN COPPER &
GOLD INC., a Delaware corporation ("FCX"),
FREEPORT-McMoRan INC., a Delaware corporation
("FTX"; FI, FCX and FTX being, collectively,
the "Transaction Parties"), the undersigned
banks (collectively, the "Lenders"), FIRST
TRUST OF NEW YORK, NATIONAL ASSOCIATION (as
successor to Morgan Guaranty Trust Company of
New York), acting as trustee for the Banks
(as herein defined) under the FI Trust
Agreement (in such capacity, the "FI
Trustee") and, acting in the capacity of FI
Trustee, as security agent for the Banks
under the FI Security Documents (as herein
defined), for purposes of Article VIII of the
Amended Credit Agreement (as herein defined)
only, CHEMICAL BANK, as agent for the Banks
under the Existing Credit Agreement (in such
capacity, the "Agent"), CHEMICAL BANK, as
Administrative Agent for the Banks under the
Amended Credit Agreement (in such capacity,
the "Administrative Agent"), and as FCX
collateral agent for the Banks (in such
capacity, the "FCX Collateral Agent") under
the FCX Collateral Agreement referred to
below, and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION) ("Chase"), as documentary agent
for the Banks under the Amended Credit
Agreement (the "Documentary Agent"; the
Administrative Agent, the FCX Collateral
Agent and the Documentary Agent being
referred to herein as the "Agents").
The Transaction Parties, certain of the Lenders,
the FI Trustee and the Agent are parties to the Existing
Credit Agreement. The Transaction Parties have advised the
other parties hereto that FTX intends to distribute to its
shareholders all shares of FCX owned by it, thereby leaving
FTX as a holding company for FRP, and FCX as the publicly
held holding company for FI (such distribution, to be on a
generally tax-free basis (with exceptions approved by the
Administrative Agent), together with arrangements required
or effectuated in connection with such distribution (and the
RTZ Stock Purchase Agreement referred to in the FCX Credit
Agreement defined below) with respect to existing
contractual agreements and indebtedness of FTX, FRP, FCX and
FI, all on terms approved by the Banks (including all tax,
accounting, corporate and partnership matters) being
referred to herein as the "Restructuring").
The Transaction Parties wish to amend the Existing
Credit Agreement to provide, among other things, for
(i) deletion of provisions relating to FTX and FRP and other
modifications to provide to FI the benefit of the modified
covenants and agreements which the Banks are providing to FI
pursuant to a new $200 million credit agreement (the "FCX
Credit Agreement") dated as of June 30, 1995, among FI, FCX,
the banks party thereto, First Trust of New York, National
Association, Chemical Bank, as Administrative Agent and FCX
Collateral Agent and The Chase Manhattan Bank (National
Association), as Documentary Agent (the Existing Credit
Agreement as amended by Section 3 of this Amendment being
the "Amended Credit Agreement"), (ii) the termination of the
Commitments of certain of the Lenders which are presently
parties to the Existing Credit Agreement (the "Departing
Banks") and their withdrawal as parties to the Amended
Credit Agreement, (iii) the Lenders listed on the signature
pages hereto under the caption "Additional Banks" to become
"Banks" for all purposes under the Amended Credit Agreement
with the Commitments set forth on Schedule II hereto next to
their names, (iv) the Lenders which are presently party to
the Existing Credit Agreement but which are not Departing
Banks (the "Continuing Banks") to continue to be "Banks"
under the Amended Credit Agreement but with their
Commitments modified to be the Commitments listed on
Schedule II hereto next to their names (for purposes of this
Amendment and the Amended Credit Agreement, the term "Banks"
shall mean the Additional Banks and the Continuing Banks),
(v) the division of the existing role of Agent into separate
roles of Administrative Agent (with Chemical Bank to become
the Administrative Agent) and Documentary Agent (with Chase
becoming the Documentary Agent), each with the respective
responsibilities and roles set forth in Article VIII of the
Amended Credit Agreement, (vi) the release of FTX's
guarantee of the borrowings of FI under the Existing Credit
Agreement, with FTX ceasing to be a party to the Amended
Credit Agreement, (vii) the pledge by FCX of the shares of
FI owned by it to secure its guarantee of FI's borrowings
under the Amended Credit Agreement and borrowings by FCX or
FI under the FCX Credit Agreement pursuant to the FCX Pledge
Agreement, (viii) certain changes in the interest rates
payable on the Loans to those set forth on Schedule I hereto
and administrative procedures for the Loans as provided in
the Amended Credit Agreement and (ix) certain other changes
to the terms and conditions of the Existing Credit
Agreement, including the representations and warranties and
covenants provided therein, to reflect the Restructuring and
the amendments referred to above and certain other
arrangements between the Transaction Parties and the Banks.
In order to accomplish such amendments, the
Transaction Parties, the Lenders and the Agent have
determined that certain amendments to the Existing Credit
Agreement are required. Accordingly, the Transaction
Parties, the Lenders, the FI Trustee, Chemical Bank (as
Agent, Administrative Agent and FCX Collateral Agent)and
Chase (as Documentary Agent) agree as follows:
SECTION 1. Defined Terms, etc. Capitalized terms
used but not defined herein shall have the meanings assigned
to such terms in Section 1.1 of the Amended Credit
Agreement. Unless otherwise stated, Section, Article,
Exhibit and Schedule references made herein are to Sections,
Articles, Exhibits and Schedules, as the case may be, of
this Amendment.
SECTION 2. Amendment Closing, Amendment Closing
Date; Termination. (a) The transactions provided for in
Sections 3 and 4 shall be consummated at a closing (the
"Amendment Closing") to be held on the Fifth Amendment
Closing Date (as defined herein) at the offices of Cravath,
Swaine & Moore, New York, New York, and/or at such other
time and place as the parties shall agree.
(b) The "Fifth Amendment Closing Date" shall be
the date as of which all the conditions set forth in
Section 6 shall have been satisfied.
(c) Notwithstanding anything herein to the
contrary, this Amendment shall terminate and be of no force
or effect if the Amendment Closing shall not have occurred
on or prior to September 30, 1995. In the event of such
termination, the Existing Credit Agreement shall continue in
full force as in effect on the date hereof.
(d) Without limitation of Section 3(a)(21), and
in addition thereto, the Continuing Banks and the Additional
Banks shall also be entitled to receive a Commitment Fee on
the entire amount of their Commitment set forth on
Schedule I hereto for the period commencing with June 30,
1995, until the earlier of (i) the Fifth Amendment Closing
Date and (ii) the date the Commitments of the Continuing
Banks and the Additional Banks are terminated.
SECTION 3. Amendment of the Existing Credit
Agreement; Change of Agents. (a) Effective as of the Fifth
Amendment Closing Date, the Existing Credit Agreement
(including the exhibits and schedules thereto) shall be
amended as follows:
(1) All capitalized terms used in the Amended
Credit Agreement but not separately defined in this
Amendment which are defined in the FCX Credit Agreement
shall have the meanings ascribed to such terms in the
FCX Credit Agreement and shall be deemed added to the
Amended Credit Agreement and all capitalized terms
defined in the Existing Credit Agreement which have
been differently defined in the FCX Credit Agreement,
shall be replaced with definitions from, or referring
to, the FCX Credit Agreement, in each such case
modified if and as appropriate such that references
therein are correct (e.g., references to the FI Credit
Agreement shall, as used in the Amended Credit
Agreement, instead where appropriate be deemed to be
references to the FCX Credit Agreement, references to
the Closing Date, and the FCX Funding Date shall be
replaced by references to the "Fifth Amendment Closing
Date" and references to the "FI Funding Date" shall not
be added to the Amended Credit Agreement). All terms
defined in the Existing Credit Agreement but no longer
used in the Amended Credit Agreement shall be deleted.
Exhibits and Schedules to the Existing Credit Agreement
shall be replaced in accordance with the foregoing.
(2) All references to "FTX" shall be replaced by
"FCX" except in such instances where such replacement
would be duplicative, in which case "FTX" shall be
deleted. All references to FRP shall be deleted.
(3) All references to "Permitted Secured Swap"
shall be replaced by "Permitted Secured Hedge",
references to the Closing Date, and references to the
FCX Funding Date and to the Amendment Closing Date
shall be replaced by references to the "Fifth Amendment
Closing Date" and references to the "FI Funding Date"
shall not be added to the Amended Credit Agreement.
(4) Any reference to "Borrowers" or a "Borrower"
in any section incorporated by reference from the FCX
Credit Agreement shall be deemed, if such reference is
to the Person who is a borrower under the Amended
Credit Agreement, to be a reference to FI as the sole
Borrower under the Amended Credit Agreement or, if such
reference is to FCX and/or FI in some other capacity,
to be a reference to FCX and FI, or to FCX or FI, as
the case may be.
(5) All references to "Guarantor" or "Guarantors"
shall be deemed to be references to FCX.
(6) All references to any "Major Subsidiary" or
to "Major Subsidiaries" shall be deemed to be
references to FI.
(7) All provisions relating to CD Rate Loans and
the related CD pricing shall be eliminated.
(8) The following definitions shall be added to
Section 1.1 in the appropriate alphabetical location:
"FCX Agent" means Chemical as administrative agent for
the FCX Lenders under the FCX Credit Agreement.
"FCX Agreement Notes" means the promissory notes of FCX
issued to the FCX Lenders pursuant to the FCX Credit
Agreement.
"FCX Credit Agreement" means the Credit Agreement dated
as of June 30, 1995, among FI, FCX, the FCX Lenders,
the FI Trustee, the FCX Agent and the Documentary
Agent, as the same may be amended and in effect from
time to time.
"FCX Credit Agreement Loan" means any loan made by the
FCX Lenders pursuant to the FCX Credit Agreement.
"FCX Credit Agreement Loan Exposure" means the
aggregate amount of unpaid principal of all FCX Credit
Agreement Loans made by the FCX Lenders.
"FCX Credit Agreement Total Commitment" means
$200,000,000, the committed amount under the FCX Credit
Agreement, as the same may be permanently terminated or
reduced from time to time.
"FCX Credit Event" means the making of an FCX Credit
Agreement Loan.
"FCX Lenders" means the banks party to the FCX Credit
Agreement.
"Fifth Amendment" means the Fifth Amendment hereto
dated as of the Fifth Amendment Closing Date.
"Fifth Amendment Closing Date" has the meaning assigned
such term in Section 2(b) of the Fifth Amendment.
References throughout the Credit Agreement to the FTX
Credit Agreement and related terms shall be replaced
with references to the FCX Credit Agreement.
(9) Section 1.2 shall be amended by adding the
following sentence at the end of such section:
"In the event any change in GAAP materially affects any
provisions of this Agreement, the Banks, FCX and FI
agree that they shall negotiate in good faith in order
to amend the affected provisions in such a way as will
restore the parties to their respective positions prior
to such change, and until such amendment becomes
effective FCX's and FI's compliance with such
provisions shall be determined on the basis of GAAP as
in effect immediately before such change in GAAP became
effective."
(10) Section 1.3 shall be amended by adding the
last three sentences of Section 1.3 of the FCX Credit
Agreement to the end thereof.
(11) Article II shall be amended by incorporation
of Article II of the FCX Credit Agreement by reference.
(12) Section 3.2 shall be amended by
(i) replacing "during the Commitment Period" with
"until the earlier of the Maturity Date and the
termination of the Commitment of such Bank in
accordance with the terms hereof"; (ii) deleting the
words "Unused Net Commitment Amount" and inserting in
its place the words "then effective unused Total
Commitment"; and (iii) deleting the proviso in its
entirety and by inserting in its place the proviso from
Section 3.1 of the FCX Credit Agreement.
(13) Section 3.3(a) shall be amended by inserting
"(i)" after the words "shall be" in the second line
thereof and inserting the words "or (ii) equal to the
remaining available balance of the applicable
Commitments" after the word "$1,000,000" in the first
sentence thereof.
(14) Section 3.3(c) shall be amended by deleting
the penultimate sentence thereof and inserting in its
place the penultimate sentence of Section 3.2(c) of the
FCX Credit Agreement.
(15) Section 3.4(a) shall be amended by adding
the words "(which shall not end after the Maturity
Date)" after the words "Interest Periods" in clause (3)
thereof.
(16) Section 3.4(b) shall be amended by
incorporating by reference at the end thereof the
second sentence of Section 3.3(b) of the FCX Credit
Agreement except that the references therein to
Section 3.3 shall be to Section 3.4.
(17) Section 3.4(c) shall be amended by deleting
the words "(each as defined in the FTX Credit
Agreement) of any FTX Lender being outstanding under
the Corporate Group Facility at any one time" and
inserting in its place the words "of any Bank".
(18) Section 3.5(b) shall be amended by adding
before the first sentence thereof the first sentence of
Section 3.4(b) of the FCX Credit Agreement.
(19) Section 3.5 shall be amended by inserting as
new clauses (c) and (d) thereof clauses (c) and (d) of
Section 3.4 of the FCX Credit Agreement, except that
the references therein to Section 3.4 shall be to
Section 3.5.
(20) Section 3.6 shall be amended by (i) adding
in the parenthetical after the words "as the case may
be" in clause (a) thereof the words ", when determined
by reference to the Prime Rate, and over a year of 360
days at all other times", (ii) inserting the words "The
Applicable Reference Rate and" at the beginning of the
second sentence of clause (c) thereof and
(iii) deleting clauses (b) and (d) thereof and re-
lettering the remaining clauses accordingly.
(21) Section 3.7(a) shall be amended by replacing
the words after "1% per annum" with the following: ",
(ii) with respect to any quarter after the Amendment
Closing Date until the Fifth Amendment Closing Date,
the amount set forth in and pursuant to (and not in
duplication of) Section 3.7(a) of the FTX Credit
Agreement and (iii) commencing on the Fifth Amendment
Closing Date, the rate set forth in Schedule I to the
FCX Credit Agreement". Section 3.7(d) shall be
deleted.
(22) Clause (ii) of the second proviso to
Section 3.8(a) and the words "the lesser of (i)" in
such proviso shall be deleted. Section 3.8 (b) shall
be deleted.
(23) Section 3.9(a) shall be amended by deleting
the words "scheduled maturity date" in clause (i)
thereof and inserting in its place the words "last date
of the Interest Period then in effect". Section 3.9(c)
shall be deleted.
(24) Section 3.10(b) shall be amended by
(i) deleting the words "FI shall from time to time" and
inserting in its place the following words:
"In the event of any termination of the Commitments, FI
shall repay or prepay all its outstanding Loans on the
date of such termination. On the date of any partial
reduction of the Commitments pursuant to Section 3.8,
FI shall",
and (ii) deleting clause (i) thereof and (iii)
replacing the words in former clause (ii) after "then
in effect" with "immediately following such reduction".
(25) Section 3.10(c) shall be amended by deleting
the following words:
"Not later than 90 days after each reduction in the
amount of the Borrowing Base as a result of any
redetermination of the Borrowing Base Factors pursuant
to Article II of the FCX Credit Agreement, FI shall
prepay the outstanding Loans in such amount as may be
necessary so that"
and inserting in its place the following words:
"If required by Section 2.4, FI shall repay the
outstanding Loans in such amount as may be necessary so
that, no later than the relevant date required by
Section 2.4 for compliance with Sections 3.2 and
5.2(b),".
(26) Sections 3.12(b) through 3.12(e) shall be
replaced with Sections 3.11(b) through 3.11(e) of the
FCX Credit Agreement except that (i) the references
therein to Section 3.17 shall be to Section 3.18 and
(ii) references to the Amendment Closing Date shall be
deemed references to the Fifth Amendment Closing Date.
(27) Sections 3.13 and 3.14 shall be replaced
with Sections 3.12 and 3.13 of the FCX Credit Agreement
except that the references therein to the Closing Date
shall be deemed references to the Fifth Amendment
Closing Date, and the references to Sections 3.9 and
3.12 shall be deemed references to Sections 3.10 and
3.13.
(28) Section 3.15 shall be amended by adding the
words "(or, if such Commitments shall have expired or
been terminated, in accordance with the respective
principal amounts of their outstanding Loans)" at the
end of the first sentence thereof.
(29) Section 3.16 shall be replaced with
Section 3.15 of the FCX Agreement with appropriate
changes in cross-references.
(30) Section 3.17 shall be amended by replacing
clauses (c) and (d) thereof with clauses (c) and (d) of
Section 3.16 of the FCX Credit Agreement.
(31) Sections 3.18 and Sections 3.19 shall be
replaced with Sections 3.17 and 3.18, respectively, of
the FCX Credit Agreement, with appropriate changes in
the cross references.
(32) Clause (i) to the lead-in to Article IV
shall be deleted and the clauses re-numbered
accordingly.
(33) References to the Pledge Agreement and the
Security Agreement in Article IV, (for example, at the
end of Section 4.1(b)) shall be replaced with
references to the FCX Pledge Agreements.
(34) Section 4.1(e) is deleted in its entirety
and shall be replaced by Section 4.1(e) of the FCX
Credit Agreement in its entirety.
(35) Section 4.1(f) shall be amended (i) by
deleting the word "1992" in the first line of
clause (i) thereof and inserting in its place the word
"1994" and by inserting the words "Fifth" before the
words "Amendment Closing Date" and (ii) by replacing
the words after "could" in the first sentence of
clause (ii) of Section 4.1(f) with the words "result in
a Material Adverse Effect".
(36) Section 4.1(h) shall be amended by deleting
clauses (iii) and (iv) thereof in their entirety and in
their place inserting clauses (iii) and (iv) of
Section 4.1(h) of the FCX Credit Agreement.
(37) Sections 4.1(i) through (q) are deleted in
their entirety and shall be replaced by Sections 4.1(i)
through (q) of the FCX Credit Agreement in their
entirety.
(38) Article V is deleted and Article V of the
FCX Credit Agreement is incorporated by reference in
its entirety, with references to the "FI Funding Date"
in the incorporated Article being replaced with the
"Fifth Amendment Closing Date".
(39) Article VII is deleted and Article VII of
the FCX Credit Agreement is incorporated by reference
in its entirety.
(40) Article VIII is deleted and Article VIII of
the FCX Credit Agreement is incorporated by reference
in its entirety.
(41) Article IX is deleted and Article IX of the
FCX Agreement is incorporated by reference in its
entirety.
(42) Sections 10.3, 10.4 and 10.7(b) shall be
replaced with Sections 10.3, 10.4 and 10.7(b) of the
FCX Agreement, with appropriate changes in the cross-
references, with references to the "Closing Date" being
replaced with the "Fifth Amendment Closing Date".
(43) Section 10.12 shall be renumbered as Section
10.18 and Sections 10.13 through 10.17 shall be
renumbered accordingly.
(44) Section 10.17 of the FCX Credit Agreement
shall be incorporated by reference.
(45) Schedules I and II shall be replaced by
Schedules I and II hereto.
(b) By their execution and delivery of this
Amendment, the parties hereto agree that the single role of
Agent shall be divided as of the Fifth Amendment Closing
Date into separate roles of Administrative Agent and
Documentary Agent and that Chemical Bank is hereby appointed
by the Banks as of the Fifth Amendment Closing Date as the
Administrative Agent and Chase is hereby appointed by the
Banks as of the Fifth Amendment Closing Date as the
Documentary Agent, each as contemplated by Article VIII of
the Amended Credit Agreement. References to the Agent
throughout the Credit Agreement shall be amended to conform
to the references to the Agents under the FCX Credit
Agreement. Chemical Bank shall continue to be entitled to
all the fees, immunities, indemnities and protection
provided to it as Agent under the Existing Credit Agreement,
including without limitation Article VIII and Section 10.4
thereof, for the period up to the Fifth Amendment Closing
Date, including in respect of any actions taken or omitted
to be taken while acting as Agent. Chemical Bank is also
hereby appointed by the Banks as of the Fifth Amendment
Closing Date as FCX Collateral Agent under the FCX Pledge
Agreement.
SECTION 4. Delivery of Notes; Assignments.
(a) At the Amendment Closing, the Continuing
Banks and the Departing Banks shall deliver to the
Administrative Agent, for delivery to and cancellation by
FI, all promissory notes issued by FI under the Existing
Credit Agreement and then held by them (collectively, the
"Old Notes"). FI shall execute and deliver to the
Administrative Agent for the account of each Bank the
Promissory Note that such Bank is entitled to receive
pursuant to Section 3.4 of the Amended Credit Agreement, in
the form set forth as Exhibit A hereto (the "New Notes"),
and the schedules attached to such New Notes shall reflect
the Loans outstanding as of the Fifth Amendment Closing
Date, subject to the arrangements provided in this
Section 4. Upon the Amendment Closing, the Administrative
Agent shall release and deliver the Old Notes to FI for
cancellation and shall deliver the New Notes to the
Continuing Banks and the Additional Banks. In the event all
or a portion of an Old Note held by a Continuing Bank or a
Departing Bank has been lost or destroyed, such Lender may
deliver, in lieu of such Old Note, an indemnity agreement
relating to such Old Note in a form reasonably satisfactory
to FI. Notwithstanding the foregoing, the failure of any
Lender to deliver any Old Notes shall not prohibit or delay
the closing on the Fifth Amendment Closing Date, unless FI
shall so notify such Lender.
(b) Effective as of the Amendment Closing,
(i) the Additional Banks shall become "Banks" for all
purposes under the Amended Credit Agreement with the
Commitments set forth on Schedule II hereto next to their
names and (ii) the Departing Banks shall cease to be Banks
for all purposes under the Amended Credit Agreement and the
Commitments (as defined in the Existing Credit Agreement) of
such Departing Banks shall be terminated. Notwithstanding
such termination and the other amendments effected by this
Amendment, the Departing Banks shall continue to be entitled
to the protection of Sections 3.12, 3.13, 3.14, 3.16, 3.18,
3.19 and 10.5 of the Existing Credit Agreement and to any
fees to which they are entitled pursuant to Section 3.7 of
the Existing Credit Agreement up to, but not including, the
Fifth Amendment Closing Date.
(c) Effective as of the Amendment Closing and by
its execution hereof, each Departing Bank and each
Continuing Bank with a Commitment under the Amended Credit
Agreement that is less than its Commitment under the
Existing Credit Agreement (each a "Decreasing Bank") hereby
assigns to the Additional Banks and the Continuing Banks
with respective Commitments under the Amended Credit
Agreement that are greater than such Continuing Banks'
respective Commitments under the Existing Credit Agreement
(each an "Increasing Bank"), and, effective as of the
Amendment Closing and by its execution hereof, each
Additional Bank and Increasing Bank hereby purchases from
the Departing Banks and the Decreasing Banks at the
principal amount thereof, such interests in the Loans that
are outstanding on the Fifth Amendment Closing Date under
the Existing Credit Agreement and will continue to be
outstanding as Loans under the Amended Credit Agreement
("Continuing Loans") as shall be necessary in order that,
after giving effect to all such assignments and purchases,
such Continuing Loans will be held by the Additional Banks
and the Continuing Banks ratably in accordance with their
respective Commitments under the Amended Credit Agreement.
Such assignments, purchases and acceptances shall be without
recourse or representation, except that each Departing Bank
and Decreasing Bank shall be deemed to have represented to
each Additional Bank and Increasing Bank that it is the
legal and beneficial owner of the interests assigned by it
free and clear of any adverse claims arising by, through or
under it.
(d) On the Fifth Amendment Closing Date, (i) each
Additional Bank and Increasing Bank shall pay the purchase
price for the interests purchased by it pursuant to
paragraph (c) of this Section 4 by wire transfer of
immediately available funds to the Administrative Agent not
later than 12:00 noon (New York time) and (ii) the
Administrative Agent shall pay to each Departing Bank and
Decreasing Bank out of the amounts received by the
Administrative Agent pursuant to clause (i) of this
paragraph (d), the purchase price for the interests assigned
by it pursuant to such paragraph (c) by wire transfer of
immediately available funds no later than 3:00 p.m. (New
York time). In addition, on the Fifth Amendment Closing
Date, FI shall pay interest on each Loan outstanding (at the
rate applicable to such Loan) for the period from the date
of the last interest payment on such Loan to but not
including the Fifth Amendment Closing Date. FI shall pay
such interest by wire transfer of immediately available
funds to the Administrative Agent not later than 11:00 a.m.
(New York time) and the Administrative Agent shall pay the
applicable Continuing Bank or Departing Bank, out of the
amount so received from FI, such interest by wire transfer
of immediately available funds no later than 3:00 p.m. (New
York time). The interest payable on each Continuing Loan on
the next Interest Payment Date therefor occurring after the
Fifth Amendment Closing Date shall be decreased by the
amount of interest paid on such Continuing Loan pursuant to
this Section 4(d).
(e) FI hereby consents to the assignments and
purchases provided for in paragraphs (c) and (d) of this
Section 4, and agrees that each Increasing Bank shall have
all the rights of a Bank under the Amended Credit Agreement
with respect to the interests in the Loans purchased by it
pursuant to such paragraphs. In the event that interests in
any LIBO Rate Loan shall be assigned pursuant to
paragraphs (c) and (d) of this Section 4 prior to the last
day of the Interest Period for such Loan, each Departing
Bank and Decreasing Bank that shall have assigned a portion
of such Loan shall be deemed to have the same rights under
Section 3.14 of the Amended Credit Agreement as it would
have if the portion it assigned had been prepaid and each
Additional Bank and Increasing Bank so purchasing a LIBO
Rate Loan shall be entitled to receive reimbursement from FI
for any loss or expense which such Additional Bank or
Increasing Bank sustains or incurs as a result of making
such Continuing Loan as of the Fifth Amendment Closing Date
rather than on the first day of the current Interest Period
for such Continuing Loan (it being understood that such loss
or expense shall be payable for the period commencing with
the Fifth Amendment Closing Date and ending with the next
Interest Payment Date for such Continuing Loan). Each
Additional Bank, Decreasing Bank or Increasing Bank claiming
compensation for any such loss or expense shall make such
request for reimbursement pursuant to the same procedures
provided in Section 3.13 of the Amended Credit Agreement for
claiming of breakage amounts.
SECTION 5. Representations and Warranties. As of
the Fifth Amendment Closing Date(i) FTX represents and
warrants with respect to itself only, (ii) FCX and FI
jointly and severally represent and warrant with respect to
FI and (iii) FCX represents and warrants with respect to
itself, in each case to each Lender, the FI Trustee, the
Agent and the Agents, as follows:
(a) The representations and warranties by such
Transaction Party (other than FTX) set forth in Article IV
of the Amended Credit Agreement and in each other Loan
Document entered into on the Fifth Amendment Closing Date
are true and correct in all material respects as if made on
and as of the Fifth Amendment Closing Date.
(b) FCX and FI are in compliance with all the
terms and conditions of the Amended Credit Agreement and the
other Loan Documents, and no Default or Event of Default
(each as defined in the Amended Credit Agreement) has
occurred or is continuing, and each Transaction Party is in
compliance with all the terms and conditions of the Existing
Credit Agreement and no Default or Event of Default (each as
defined in the Existing Credit Agreement) has occurred and
is continuing.
(c) Each of the Transaction Parties has the
corporate power and authority to enter into and perform this
Amendment. The execution, delivery and performance of this
Amendment has been duly authorized by each Transaction Party
and constitutes the legal, valid and binding obligation of
such Transaction Party, enforceable against such Transaction
Party in accordance with its terms, (ii) will not violate
(A) the Certificate of Incorporation, the Certificate of
Domestication or the Indonesian Articles of Association, as
applicable, or the By-laws of such Transaction Party,
(B) any Governmental Rule binding upon such Transaction
Party or (C) any provision of any indenture, agreement or
other instrument to which such Transaction Party is a party
or by which it or any of its properties or assets are or may
be bound, (iii) will not be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of
time or both) a default under any such indenture, agreement
or other instrument referred to in clause (ii)(C) above and
(iv) will not result in the creation or imposition of any
Lien upon any Transaction Party, except for the liens of the
FCX Pledge Agreement and the FI Security Documents.
SECTION 6. Conditions to Closing. The
consummation of the transactions set forth in Sections 3 and
4 shall be subject to the satisfaction, or the waiver by
each Bank, of the following conditions precedent:
(a) Each Bank shall have received the following:
(i) a copy of the Certificate of
Domestication of FI as in effect on the Fifth
Amendment Closing Date certified by the Secretary
of State of the State of Delaware (as of a date
reasonably near the Fifth Amendment Closing Date)
as being a true and correct copy of such documents
on file in his office;
(ii) the signed Certificate of the Secretary
of State of the State of Delaware, in regular form
(dated reasonably near the Fifth Amendment Closing
Date), listing the Certificate of Domestication of
FI as in effect on the Fifth Amendment Closing
Date on file in his office and stating that such
documents are the only charter documents of FI on
file in his office, that FI is duly domesticated
and in good standing in the State of Delaware, and
has filed all franchise tax returns and has paid
all franchise taxes required by law to be filed
and paid by FI to the date of his Certificate;
(iii) a copy of the Indonesian Articles of
Association of FI and any amendments thereto as in
effect on the Fifth Amendment Closing Date;
(iv) the signed Certificate of the Secretary
or an Assistant Secretary of FI, dated the Fifth
Amendment Closing Date and certifying, among other
things, (A) a true and correct copy of resolutions
adopted by the Board of Directors of FI and
concurred in by the Board of Commissioners of FI
authorizing the making and performance of this
Amendment and the Amended Credit Agreement and the
other Loan Documents to which FI is or is to be a
party and the issuance by FI of the New Notes and
the borrowings by FI under the Amended Credit
Agreement, and that such resolutions have not been
modified, rescinded or amended and are in full
force and effect, (B) true and correct copies of
the Indonesian Articles of Association and the By-
laws of FI as in effect on the Fifth Amendment
Closing Date and at all times since a date prior
to the date of the resolutions described in
(A) above, (C) that the Certificate of
Domestication of FI has not been amended since the
date of the last amendment, shown on the
certificate referred to in (ii) above, and (D) the
incumbency and specimen signatures of officers of
FI executing the foregoing documents and any other
documents delivered to the Lenders in connection
with the Fifth Amendment Closing Date;
(v) the signed opinion of (A) the General
Counsel of FCX substantially in the form of
Exhibit J to the FCX Credit Agreement, but with
respect to this Agreement and the Amended Credit
Agreement, (B) Davis Polk & Wardwell, special New
York counsel for FI, substantially in the form of
Exhibit K to the FCX Credit Agreement, but with
respect to this Agreement and the Amended Credit
Agreement, (C) Liskow & Lewis, special Louisiana
counsel for FI, substantially in the form of
Exhibit L to the FCX Credit Agreement, but with
respect to this Agreement and the Amended Credit
Agreement, (D) Ali Budiardjo, Nugroho
Reksodiputro, special Indonesian counsel for FI,
substantially in the form of Exhibit M to the FCX
Credit Agreement, but with respect to this
Agreement and the Amended Credit Agreement, and
(E) Mochtar, Karuwin & Komar, special Indonesian
counsel for the Agent, substantially in the form
of Exhibit N to the FCX Credit Agreement, but with
respect to this Agreement and the Amended Credit
Agreement, in each case dated the Fifth Amendment
Closing Date and satisfactory to Cravath, Swaine &
Moore, special counsel for the Agents, or such
other opinions of counsel as may be satisfactory
to Cravath, Swaine & Moore;
(vi) signed Certificates of the Secretary of
State of the State of Delaware with respect to
FCX, dated reasonably near the Fifth Amendment
Closing Date, listing FCX's Certificate of
Incorporation as in effect on the Fifth Amendment
Closing Date on file in his office and stating
that such documents are the only charter documents
of FCX on file in his office, that FCX is duly
incorporated and in good standing in the State of
Delaware, and has filed all franchise tax returns
and has paid all franchise taxes required by law
to be filed and paid by FCX to the date of his
Certificate;
(vii) a signed Certificate of the Secretary or
an Assistant Secretary of FCX, dated the Fifth
Amendment Closing Date and certifying, among other
things, (A) a true and correct copy of resolutions
adopted by the Board of Directors of FCX
authorizing the making and performance of this
Amendment and the continued performance by it of
the Amended Credit Agreement, the continued
guarantee by it of the borrowings by FI under the
Amended Credit Agreement and the execution and
delivery of the FCX Pledge Agreement and the
pledge by it of the shares of FI held by it
pursuant thereto, and that such resolutions have
not been modified, rescinded or amended and are in
full force and effect, (B) a true and correct copy
of the Certificate of Incorporation and the By-
laws of FCX as in effect on the Fifth Amendment
Closing Date and at all times since a date prior
to the date of the resolutions described in (A)
above, (C) that the Certificate of Incorporation
of FCX has not been amended since the date of the
last amendment shown on the Certificate with
respect to FCX referred to in (vi) above, and (D)
the incumbency and specimen signatures of officers
of FCX executing the foregoing documents and any
other documents delivered to the Banks in
connection with the Amendment Closing;
(viii) the signed Certificate of a Responsible
Officer of each of FCX and FI dated the Fifth
Amendment Closing Date and certifying that each
representation and warranty made by FCX or FI, as
applicable, in this Amendment is true and correct
and no Default or Event of Default (under either
the Existing Credit Agreement or the Amended
Credit Agreement) shall have occurred and be
continuing; and
(ix) such other instruments and documents as
the Agents or any Bank may reasonably request in
connection with the Amendment Closing.
(b) FI shall have paid on the Fifth Amendment
Closing Date (i) to the Agent, for the account of the
Agent, the Agency Fee due under the Existing Credit
Agreement on such date in an aggregate amount to be
agreed upon by FTX and the Agent, (ii) to the Departing
Banks, the fees to which they are entitled under the
last sentence of Section 4(b) and (iii) to the Lenders
entitled thereto, the amounts referred to in
Section 2(d) and in the penultimate sentence of
Section 4(d) and in 4(e).
(c) All amounts payable under Section 4(d)(i)
shall have been received by the Administrative Agent.
(d) Each Bank shall have received a New Note of FI
duly executed by FI payable to its order and otherwise
complying with the provisions of Section 3.4 of the
Amended Credit Agreement.
(e) The consent of Bank Indonesia shall have been
obtained and shall be in full force and effect.
(f) All other consents, approvals and agreements
necessary or advisable in the judgment of the Agents or
their counsel for consummation of the Restructuring and
the Amendment Closing shall have been obtained and
shall be in full force and effect and there shall not
be any action, suit, litigation or other proceeding at
law or in equity or by or before any court of any
Governmental Authority pending which, in the judgment
of the Agents or their counsel, is likely to restrain,
prevent or impose materially adverse conditions upon
the Restructuring or the Amendment Closing or the full
and timely performance by the Transaction Parties of
their obligations under the Loan Documents and in
connection with the Restructuring.
(g) No judgment, order or decree shall be
outstanding, and no action shall have been taken by any
Governmental Authority, that, in the judgement of the
Agents or their counsel, has or is likely to have the
effect of restraining, preventing or imposing
materially adverse conditions upon the Amendment
Closing or the Restructuring, or the full and timely
performance by the Transaction Parties of their
obligations under the Loan Documents and in connection
with the Restructuring.
(h) The Eighth Amendment to the FI Trust Agreement
substantially in the form of Exhibit F-1 to the FCX
Credit Agreement shall have been executed by the
parties thereto and shall be in full force and effect,
and a copy of such Amendment shall have been delivered
to the Agent.
(i) An amended and restated instrument of power of
attorney (Surat Kuasa), substantially in the form of
Exhibit F-2 to the FCX Credit Agreement, shall have
been executed and delivered by FI, and the
Administrative Agent and the Documentary Agent shall
have received evidence that all taxes and notary fees
in connection therewith have been paid.
(j) An amended and restated Fiduciary Assignment
substantially in the form of Exhibit F-3 to the FCX Credit
Agreement and an amended and restated Fiduciary Transfer
substantially in the form of Exhibit F-4, together with an
amended and restated Fiduciary Power substantially in the
form of Exhibit F-5, each shall have been executed and
delivered by the respective parties thereto and the
Administrative Agent and the Documentary Agent shall have
received evidence that all taxes and notary fees in
connection therewith have been paid.
(k) The FCX Pledge Agreements substantially in the
forms of Exhibit E-1 and E-2 to the FCX Credit Agreement
shall have been duly executed by the parties thereto and
delivered to the FCX Collateral Agent and shall be in full
force and effect, and all the outstanding capital stock of
FI owned by FCX shall have been duly and validly pledged
thereunder to the FCX Collateral Agent for the ratable
benefit of the Banks, the holders of the B.V. Notes, the
lenders under the FCX Credit Agreement and the beneficiaries
of FCX Guaranty and certificates representing such stock,
accompanied by instruments of transfer endorsed in blank,
shall be in the actual possession of the FCX Collateral
Agent.
(l) The Restructuring shall have been completed on a
generally tax-free basis (subject to exceptions approved by
Administrative Agent and the Documentary Agent), including
arrangements in connection with the Restructuring with
respect to existing indebtedness of FTX, FRP, FCX and FI,
all on substantially on the terms of Schedule VII to the FCX
Credit Agreement or on terms otherwise satisfactory to the
Banks (including all tax, accounting, corporate and
partnership matters), and the Administrative Agent and the
Documentary Agent shall have received satisfactory opinions
of counsel with respect to the Restructuring, its tax status
and related matters as they shall reasonably request.
(m) Closing of a new $400,000,000 Chemical/Chase Bank
credit facility for FRP and FTX and the satisfaction of the
conditions to the initial credit event thereunder shall have
occurred substantially simultaneously with the Amendment
Closing.
(n) Closing of the FCX Credit Agreement and the FCX
Funding Date shall have occurred substantially
simultaneously with the Amendment Closing.
(o) The Administrative Agent shall have received an
environmental due diligence summary memorandum in form, scope
and substance reasonably satisfactory to the Banks, from
Cravath, Swaine & Moore as to certain environmental hazards,
liabilities or Remedial Action to which FI or its
Subsidiaries may be subject and the Banks shall be reasonably
satisfied with the nature and cost of any such hazards,
liabilities or Remedial Action and with FI's plans with
respect thereto.
(p) Copies of this Amendment which, when taken together,
bear the signatures of the parties hereto shall have been
received by the Administrative Agent and the Documentary
Agent.
(q) All legal matters incident to the Restructuring,
this Amendment, the New Notes, the other Loan Documents and
the borrowings under the Amended Credit Agreement shall be
satisfactory to Cravath, Swaine & Moore, special counsel for
the Agents.
SECTION 7. Amendment; Waiver. This Amendment may not
be amended nor any provision hereof waived except pursuant to a
writing signed by each Lender or as otherwise provided herein.
Any amendment or waiver of the provisions hereof pursuant to such
a writing shall be binding upon each party hereto.
SECTION 8. Counterparts. This Amendment may be
executed in multiple counterparts, each of which shall constitute
an original, but all of which when taken together shall constitute
but one instrument.
SECTION 9. APPLICABLE LAW. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
SECTION 10. Expenses. FI shall pay all out-of-pocket
expenses incurred by the Agents in connection with the preparation
of this Amendment and with the Amendment Closing, including, but
not limited to, the reasonable fees and disbursements of Cravath,
Swaine & Moore, special counsel for the Agents, and Mochtar,
Karuwin & Komar, special Indonesian counsel to the Agents.
SECTION 11. Composite Agreement. Effective upon the
Fifth Amendment Closing Date, FI, FCX and the Agents shall cause
to be prepared a composite agreement embodying all amendments
(including this Amendment) to the Existing Credit Agreement (the
"Composite Agreement"), and which may include minor technical
corrections to give effect to such amendments. Upon its approval
by FI, FCX and the Agents (as evidenced by their countersigning an
execution version thereof), the Composite Agreement shall be
distributed to each of the Banks and become the Amended Credit
Agreement and shall be binding upon the parties thereto.
SECTION 12. Headings. The headings of this Amendment
are for reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 13. Amendment. Except as and to the extent
expressly provided herein, the Existing Credit Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be executed by their duly authorized
officers or agents as of the date first above written.
Borrower: P.T. FREEPORT INDONESIA COMPANY,
by /s/ R. Foster Duncan
Name: R. Foster Duncan
Title: Treasurer
Departing Guarantor: FREEPORT-McMoRan INC.,
by /s/ R. Foster Duncan
Name: R. Foster Duncan
Title: Treasurer
Continuing Guarantor: FREEPORT-McMoRAN COPPER & GOLD INC.,
by /s/ R. Foster Duncan
Name: R. Foster Duncan
Title: Treasurer
Agents: CHEMICAL BANK, as Agent, as
Administrative Agent and as FCX
Collateral Agent,
by /s/ Ronald Potter
Name: Ronald Potter
Title: Managing Director
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as Documentary Agent,
by /s/ Alexander S. Rapetski
Name: Alexander S. Rapetski
Title: Vice President
FI Trustee: FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION (as successor to Morgan
Guaranty Trust Company of New York),
as FI Trustee,
by /s/ P.J. Crowley
Name: P.J. Crowley
Title:Vice President
Continuing Banks: CHEMICAL BANK,
by
Name:
Title:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION),
by
Name:
Title:
Exhibit
EXECUTION COPY
P.T. FREEPORT INDONESIA COMPANY,
FREEPORT-McMoRan COPPER & GOLD INC.
_______________________
$200,000,000
CREDIT AGREEMENT
Dated as of June 30, 1995
with
CERTAIN BANKS,
CHEMICAL BANK,
as Administrative Agent
and
FCX Collateral Agent,
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
as FI Trustee,
and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
as Documentary Agent
TABLE OF CONTENTS
Page
Parties and Recitals . . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions
SECTION 1.1. Definitions . . . . . . . . . . . . 2
SECTION 1.2. Accounting Terms . . . . . . . . . 33
SECTION 1.3. Section, Article, Exhibit and
Schedule References, etc . . . . 34
ARTICLE II
Borrowing Base Determinations
SECTION 2.1. Annual Determination of Borrowing
Base . . . . . . . . . . . . . . 34
SECTION 2.2. Redetermination of Borrowing Base . 35
SECTION 2.3. Redetermination Based on Equity
Payments . . . . . . . . . . . . 36
SECTION 2.4. Grace Period for Compliance with
Section 2.1 upon Borrowing Base
Redeterminations . . . . . . . . 36
SECTION 2.5. Reduction of Borrowing Base from
Sales of Assets . . . . . . . . . 37
SECTION 2.6. Nonreviewability of Borrowing Base
Redetermination . . . . . . . . . 37
ARTICLE III
The Loans
SECTION 3.1. Revolving Credit Facility . . . . . 37
SECTION 3.2. Loans . . . . . . . . . . . . . . . 38
SECTION 3.3. Notice of Loans . . . . . . . . . . 39
SECTION 3.4. Promissory Notes . . . . . . . . . 40
SECTION 3.5. Interest on Loans . . . . . . . . . 41
SECTION 3.6. Fees . . . . . . . . . . . . . . . 42
SECTION 3.7. Maturity and Reduction of Commitments 43
SECTION 3.8. Interest on Overdue Amounts;
Alternative Rate of Interest . . 43
SECTION 3.9. Prepayment of Loans . . . . . . . . 44
SECTION 3.10. Continuation and Conversion of Loans 45
SECTION 3.11. Reserve Requirements; Change in
Circumstances . . . . . . . . . . 47
SECTION 3.12. Change in Legality . . . . . . . . 51
SECTION 3.13. Indemnity . . . . . . . . . . . . . 52
SECTION 3.14. Pro Rata Treatment . . . . . . . . 53
SECTION 3.15. Sharing of Setoffs . . . . . . . . 53
SECTION 3.16. Payments . . . . . . . . . . . . . 54
SECTION 3.17. U.S. Taxes . . . . . . . . . . . . 56
SECTION 3.18. Indonesian Taxes . . . . . . . . . 58
ARTICLE IV
Representations and Warranties
SECTION 4.1. Representations and Warranties . . 62
(a) Organization, Powers . . . . . 62
(b) Authorization . . . . . . . . . 62
(c) Governmental Approvals . . . . 63
(d) Enforceability . . . . . . . . 63
(e) Financial Statements . . . . . 64
(f) Litigation; Compliance with
Laws; etc. . . . . . . . . . 64
(g) Title, etc. . . . . . . . . . . 65
(h) Federal Reserve Regulations; Use
of Proceeds . . . . . . . . 65
(i) Taxes . . . . . . . . . . . . . 66
(j) Employee Benefit Plans . . . . 66
(k) Investment Company Act . . . . 67
(l) Public Utility Holding
Company Act . . . . . . . . 67
(m) Subsidiaries . . . . . . . . . 67
(n) Environmental Matters . . . . . 67
(o) Security Documents . . . . . . 68
(p) Assigned Agreements . . . . . . 69
(q) No Material Misstatements . . . 69
ARTICLE V
Covenants
SECTION 5.1. Affirmative Covenants of the
Borrowers . . . . . . . . . . . . 70
(a) Financial Statements, etc. . . 70
(b) Taxes and Claims . . . . . . . 72
(c) Maintenance of Existence;
Conduct of Business . . . . 72
(d) Compliance with Applicable Laws 73
(e) Litigation . . . . . . . . . . 73
(f) ERISA . . . . . . . . . . . . . 73
(g) Compliance with Environmental
Laws; Preparation of
Environmental Reports . . . 73
(h) Security . . . . . . . . . . . 74
(i) Insurance . . . . . . . . . . . 75
(j) Access to Premises and Records 75
(k) Concentrate Sales Agreements . 76
(l) Protection of Contract Rights . 76
(m) Source of Interest . . . . . . 76
(n) Further Assurances . . . . . . 77
(o) Covenants Regarding FI . . . . 77
SECTION 5.2. Negative Covenants of the Borrowers 77
(a) Conflicting Agreements . . . . 77
(b) Borrowing Base Limits . . . . . 78
(c) Consolidation or Merger;
Disposition of Assets and
Capital Stock . . . . . . . 78
(d) Liens . . . . . . . . . . . . . 80
(e) Current Ratios . . . . . . . . 82
(f) EBITDA Ratios . . . . . . . . . 83
(g) Debt . . . . . . . . . . . . . 83
(h) Preferred Stock . . . . . . . . 85
(i) Scope of FI's Business . . . . 85
(j) Ownership of FI . . . . . . . . 85
(k) Fiscal Year . . . . . . . . . . 85
(l) Investments in Nonrestricted
Subsidiaries and Persons Not
Subsidiaries . . . . . . . . 85
(m) Federal Reserve Regulations . . 86
(n) FI Transfers . . . . . . . . . 86
(o) Specified Transactions . . . . 86
(p) Transactions with Affiliates . 87
(q) Equity Payments . . . . . . . . 88
(r) Covenants Regarding Waste Water 88
(s) Hedge Transactions . . . . . . 88
SECTION 5.3. Covenants Relating to RTZ Transaction 88
ARTICLE VI
Conditions of Credit
SECTION 6.1. Conditions to Initial Credit Events 90
SECTION 6.2. Conditions Precedent to Each Credit
Event . . . . . . . . . . . . . . 98
SECTION 6.3. Representations and Warranties with
Respect to Credit Events . . . . 98
ARTICLE VII
Events of Default
SECTION 7.1. Events of Default . . . . . . . . . 99
ARTICLE VIII
The Agents and the FI Trustee
SECTION 8.1. The Agents and the FI Trustee . . . 103
ARTICLE IX
Guarantee
SECTION 9.1. Guarantee . . . . . . . . . . . . . 110
ARTICLE X
Miscellaneous
SECTION 10.1. Notices . . . . . . . . . . . . . . 112
SECTION 10.2. Survival of Agreement . . . . . . . 112
SECTION 10.3. Successors and Assigns;
Participation; Purchasing Banks . 113
SECTION 10.4. Expenses of the Banks; Indemnity . 118
SECTION 10.5. Right of Setoff . . . . . . . . . . 120
SECTION 10.6. APPLICABLE LAW . . . . . . . . . . 121
SECTION 10.7. Waivers; Amendments . . . . . . . . 121
SECTION 10.8. Severability . . . . . . . . . . . 122
SECTION 10.9. Counterparts . . . . . . . . . . . 122
SECTION 10.10. Headings . . . . . . . . . . . . . 122
SECTION 10.11. Entire Agreement . . . . . . . . . 122
SECTION 10.12. WAIVER OF JURY TRIAL, ETC. . . . . 123
SECTION 10.13. Interest Rate Limitation . . . . . 123
SECTION 10.14. JURISDICTION; CONSENT TO SERVICE OF
PROCESS . . . . . . . . . . . . . 124
SECTION 10.15. Confidentiality . . . . . . . . . . 124
SECTION 10.16. Judgment Currency . . . . . . . . . 126
SECTION 10.17. RTZ Transaction . . . . . . . . . . 127
Schedule I Applicable Margin for Loans and
Commitment Fees
Schedule II Commitments of the Banks
Schedule III Subsidiaries
Schedule IV Governmental Approvals
Schedule V Major Concentrate Sales Agreement
Schedule VI UCC Filings Offices
Schedule VII Summary Description of RTZ
Transaction and the Restructuring
Exhibit A Form of Promissory Note
Exhibit B Form of Borrowing Notice
Exhibit C Form of Administrative Questionnaire
Exhibit D Form of Commitment Transfer
Supplement
Exhibit E Forms of FCX Pledge Agreements
Exhibit F Forms of Interim FI Security
Documents
Exhibit G Forms of Final FI Security Documents
Exhibit H Form of FCX Intercreditor Agreement
Exhibit I Form of FI Intercreditor Agreement
Exhibit J Forms of Opinions of the General
Counsel of FCX
Exhibit K Forms of Opinions of Davis Polk &
Wardwell
Exhibit L Forms of Opinions of Liskow and Lewis
Exhibit M Forms of Opinions of Ali Budiardjo,
Nugroho Reksodiputro
Exhibit N Forms of Opinions of Mochtar,
Karuwin & Komar
CREDIT AGREEMENT dated as of June 30, 1995, among
P.T. FREEPORT INDONESIA COMPANY, a limited liability
company organized under the laws of Indonesia and also
domesticated in Delaware ("FI"), FREEPORT-McMoRan
COPPER & GOLD INC., a Delaware corporation ("FCX"; FI
and FCX being the "Borrowers"), the undersigned
financial institutions (collectively, the "Banks"),
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, a
national banking association (for purposes of
Article VIII hereof only), as trustee for the Banks and
certain other lenders under the FI Trust Agreement and,
in such capacity, as security agent for the Banks and
such other Lenders under the FI Security Documents (as
herein defined) (in such capacity, the "FI Trustee"),
CHEMICAL BANK, a New York banking corporation
("Chemical"), as administrative agent for the Banks (in
such capacity, the "Administrative Agent"), and as
collateral agent for the Banks and certain other
lenders (in such capacity, the "FCX Collateral Agent")
under the FCX Pledge Agreements (as defined below), and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a
national banking association ("Chase"), as documentary
agent for the Banks (in such capacity, the "Documentary
Agent"; the Administrative Agent, the FCX Collateral
Agent and the Documentary Agent being, collectively,
the "Agents").
FI and FCX have requested the Banks to extend credit on a
secured basis to FI and FCX in order to enable them to borrow on a
revolving credit basis at any time and from time to time prior to the
Maturity Date (as herein defined). The aggregate principal amount of
all revolving credit loans at any time outstanding hereunder shall not
exceed $200,000,000. The proceeds of such borrowings are to be used
for corporate purposes of the Borrowers.
The Banks are willing to make secured loans to FI and to FCX
upon the terms and subject to the conditions hereinafter set forth,
including the guarantee by FCX of the loans to FI.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the parties hereto agree as
follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. As used in this Agreement, the
following terms have the meanings indicated (any term defined in this
Article I or elsewhere in this Agreement in the singular and used in
this Agreement in the plural shall include the plural, and vice
versa):
"Administrative Questionnaire" means an Administrative
Questionnaire in the form of Exhibit C.
"Affiliate" means, when used with respect to a specified
Person, another Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
"Airfast Assets" means certain specified aircraft and
airport facilities sold by FI to Avco pursuant to the Airfast
Documents.
"Airfast Documents" means the agreements governing the
Airfast Transaction as in effect on the Closing Date and as amended
from time to time as permitted by Section 5.2(o).
"Airfast Obligations" mean all obligations of FI relating to
the Airfast Transaction.
"Airfast Transaction" means the sale and leaseback
transaction between FI and Avco relating to the Airfast Assets, the
related financing and FI's equity investment of up to $2,000,000 in
Avco, substantially on the terms described in the Airfast Documents.
"ALatieF" means P.T. ALatieF Nusakarya Corporation, an
Indonesian limited liability company.
"ALatieF-FI Assets" means the non-mining infrastructure
facilities as described in the ALatieF-FI Joint Venture Agreement.
"ALatieF Documents" means the agreements governing the sale
and leaseback transaction between ALatieF-FI and FI, including the
related financing arrangements under the Chase-ALatieF Agreement and
the B.V. Notes, as in effect on the Closing Date and as amended from
time to time as permitted by Section 5.2(o).
"ALatieF-FI" means P. T. ALatieF Freeport Infrastructure
Corporation, the joint venture company organized under the laws of
Indonesia by FI and ALatieF pursuant to the ALatieF-FI Joint Venture
Agreement.
"ALatieF-FI Joint Venture Agreement" means the Joint Venture
Agreement made and entered into on March 11, 1993, between FI and
ALatieF, as in effect on the Closing Date and as amended as permitted
by Section 5.2(o) from time to time.
"ALatieF-FI Obligations" mean all obligations of FI and FCX
relating to the AlatieF-FI Transaction, including FCX's Guarantee of
the BV Notes and FI's Guarantee of the Chase-ALatieF Agreement
obligations, FI's obligations under the intercompany notes relating to
the B.V. Notes and FI's obligations under the related master services
agreements.
"ALatieF-FI Transaction" means the sale and leaseback
transaction between FI and ALatieF relating to the ALatieF-FI Assets,
including the related financing arrangements, as in effect on the
Closing Date and as amended from time to time as permitted by Section
5.2(o).
"Alternate Base Rate" means for any day, a rate per annum
(rounded upwards, if not already a whole multiple of 1/100 of 1%, to
the next higher 1/100 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect for such
day plus 1/2 of 1%. For purposes hereof, the term "Prime Rate" means
the rate of interest per annum publicly announced from time to time by
Chemical as its prime rate in effect at its principal office in the
City of New York; each change in the Prime Rate shall be effective on
the date such change is publicly announced as being effective. "Base
CD Rate" means the sum of (x) the product of (i) the Three-Month
Secondary CD Rate and (ii) Statutory Reserves and (y) the Assessment
Rate. "Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported
as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board through
the public information telephone line of the Federal Reserve Bank of
New York (which rate will, under the current practices of the Board,
be published in Federal Reserve Statistical Release H.15(519) during
the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average
of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at
approximately 10:00 a.m., New York City time, on such day (or, if such
day shall not be a Business Day, on the next preceding Business Day)
by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it.
"Federal Funds Effective Rate" means, for any day, the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it. If
for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable to ascertain the Base CD Rate or the Federal Funds Effective
Rate or both for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the Alternate Base Rate shall be determined
without regard to clause (b) or (c), or both, of the first sentence of
this definition, as appropriate, until the circumstances giving rise
to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate, respectively.
"Amendment Agreement" means the Fifth Amendment dated as of
the FCX Funding Date to the Credit Agreement dated as of October 27,
1989, as previously amended, among FI, FCX, FTX, certain lenders
(including the FI Lenders), the FI Trustee, the FI Agent, the FCX
Collateral Agent and Chase as documentary agent for the FI Lenders.
"Applicable LIBO Rate" means on a per annum basis, in
respect of any LIBO Rate Loan, for each day during the Interest Period
for such Loan, the sum of (i) the LIBO Rate as determined by the
Administrative Agent plus (ii) the Applicable Margin.
"Applicable Margin" means, with respect to any LIBO Rate
Loan or Reference Rate Loan, or with respect to the Commitment Fees,
as the case may be, the applicable percentage for the relevant
Borrower set forth on Schedule I hereto under the caption "LIBOR
Spread", "ABR Spread" or "Fee Percentage", as the case may be, based
upon the ratings by S&P and Moody's, respectively, applicable on such
date to the Index Debt. For purposes of the foregoing, (i) if either
Moody's or S&P shall not have in effect a rating for the Index Debt
(other than by reason of the circumstances referred to in the last
sentence of this definition), then such rating agency shall be deemed
to have established a rating of BB-/Ba3 unless such rating agency
shall have in effect a rating for senior subordinated unsecured, non-
credit enhanced, long-term indebtedness for borrowed money of FCX, in
which case such rating, increased by two categories, shall be used as
the Index Debt rating of such rating agency so long as such rating
agency has in effect such a rating and does not have in effect a
rating for Index Debt; (ii) if the ratings established or deemed to
have been established by Moody's and S&P for the Index Debt shall fall
within different categories, the Applicable Margin shall be based on
the lower of the two ratings unless either of the two ratings
qualifies as "investment grade", in which case the higher of the two
ratings will apply; and (iii) if the ratings established or deemed to
have been established by Moody's and S&P for the Index Debt shall be
changed (other than as a result of a change in the rating system of
Moody's or S&P), such change shall be effective as of the date on
which it is first announced by the applicable rating agency. Each
change in the Applicable Margin shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If
the rating system of Moody's or S&P shall change, or if either such
rating agency shall cease to be in the business of rating corporate
debt obligations, the Borrowers and the Banks shall negotiate in good
faith to amend this definition to reflect such changed rating system
or the non-availability of ratings from such rating agency and,
pending the effectiveness of any such amendment, the Applicable Margin
shall be determined by reference to the rating most recently in effect
prior to such change or cessation.
"Applicable Percentage" of any Bank means the percentage set
opposite such Bank's name on Schedule II hereto, as modified from time
to time as provided hereby.
"Applicable Reference Rate" means, on a per annum basis in
respect of any Reference Rate Loan, for any day, the sum of the
Alternate Base Rate, plus the Applicable Margin.
"Assessment Rate" means, with respect to each day during an
Interest Period, the annual rate (rounded upwards, if not already a
whole multiple of 1/100 of l%, to the next highest whole multiple of
1/100 of 1%) most recently estimated by the Administrative Agent as
the then current net annual assessment rate that will be employed in
determining amounts payable by Chemical to the Federal Deposit
Insurance Corporation or any successor ("FDIC") for the FDIC's
insuring time deposits made in Dollars at offices of Chemical in the
United States.
"Assigned Agreements" means the Contract of Work and the
Concentrate Sales Agreements.
"Available Borrowing Base" means the then effective
Borrowing Base minus the aggregate outstanding principal amount of all
Borrowing Base Debt.
"Avco" means P.T. Airfast Aviation Facilities Company, an
Indonesian joint venture company owned by P.T. Airfast Indonesia, P.T.
Giga Haksa and FI.
"Bank" means each bank signatory hereto and its successors
and permitted assigns under Section 10.3.
"Board" means the Board of Governors of the Federal Reserve
System of the United States.
"Borrowers" means FI and FCX.
"Borrowing Base" has the meaning assigned to such term in
Article II.
"Borrowing Base Certificate" has the meaning assigned to
such term in Article II.
"Borrowing Base Debt" means the sum, without duplication, of
(i) FI Borrowing Base Debt plus (ii) FCX Borrowing Base Debt, all as
of the date of calculation. In addition, any preferred stock issued
by a Borrower or a Restricted Subsidiary with mandatory redemption
payments or put rights prior to the Maturity Date shall also be
considered Borrowing Base Debt until the next redetermination of the
Borrowing Base.
"Borrowing Date" means, with respect to any Loan, the date
on which such Loan is disbursed.
"Business Day" means any day other than a Saturday, Sunday
or a day on which banks in New York City are authorized or required by
law to close; provided, however, that when used in connection with a
LIBO Rate Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in Dollar deposits in the London
interbank market.
"B.V. Notes" has the meaning assigned to such term in
Section 5.2(g)(iii).
"Capitalized Lease Obligation" means the obligation of any
Person to pay rent or other amounts under a lease of (or other
agreement conveying the right to use) real and/or personal property
which obligation is, or in accordance with GAAP (including Statement
of Financial Accounting Standards No. 13 of the Financial Accounting
Standards Board) is required to be, classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP, and for
purposes of this Agreement the amount of such obligation shall be the
capitalized amount thereof determined in accordance with GAAP.
"Caterpillar" means Caterpillar Financial Services
Corporation.
"Caterpillar Assets" has the meaning assigned to such term
in Section 5.2(g)(iv).
"Caterpillar Documents" means the documentation governing
the Caterpillar Transaction, as in effect on the Closing Date and as
amended from time to time as permitted by Section 5.2(o).
"Caterpillar Obligations" has the meaning assigned to such
term in Section 5.2(g)(iv).
"Caterpillar Transaction" has the meaning assigned to such
term in Section 5.2(g)(iv).
A "Change in Control" shall be deemed to have occurred if
(a) any Person or group (within the meaning of Rule 13d-5 of the SEC
as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing 30% or more of the
aggregate ordinary voting power represented by the issued and
outstanding capital stock of FCX; or (b) a majority of the seats
(other than vacant seats) on the board of directors of FCX shall at
any time be occupied by Persons who were not (i) members of the board
of directors of FCX on the Closing Date, (ii) appointed as, or
nominated for election as, directors by a majority of directors who
are (x) referred to in clause (i) and (y) other directors who are
appointed or nominated in accordance with this clause (ii) or
(iii) nominated or appointed by RTZ America, RTZ Indonesia or any
Affiliate of either thereof pursuant to its participation in the
Restructuring as contemplated by the Letter Agreement dated as of
March 7, 1995, between RTZ America and FTX and FCX and the Stock
Purchase Agreement.
"Chase-ALatieF Agreement" means the Credit Agreement dated
as of December 15, 1993, between ALatieF-FI, the financial
institutions named therein and The Chase Manhattan Bank (National
Association), as Agent.
"Circle C Agreement" means the Credit Agreement dated as of
February 6, 1992, as amended, by and between Circle C Land Corp. and
TCB.
"Closing Date" means the date of execution and delivery of
this Agreement and the Promissory Notes.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Bank, the
Commitment of such Bank hereunder to make revolving loans as set forth
on Schedule II hereto, or in the Commitment Transfer Supplement
pursuant to which such Bank assumed its Commitment, as the same may be
permanently terminated or reduced from time to time pursuant to
Section 3.7 and pursuant to assignments by such Bank pursuant to
Section 10.3. The Commitment of each Bank shall automatically and
permanently terminate on the Maturity Date.
"Commitment Fee" has the meaning assigned to such term in
Section 3.6(a).
"Commitment Termination Date" has the meaning assigned to
such term in Section 3.6(a).
"Commitment Transfer Supplement" means a Commitment Transfer
Supplement entered into by a Bank and an assignee, and accepted by the
Administrative Agent, in the form of Exhibit D or such other form as
shall be approved by the Administrative Agent.
"Concentrate Sales Agreements" means all contracts and
agreements with respect to the sale or disposition of ores or minerals
produced by the mining, concentrating and related operations conducted
by FI pursuant to the Contract of Work, as such agreements may be
amended and in effect from time to time.
"Contract of Work" shall mean the Contract of Work made
December 30, 1991, between the Ministry of Mines of the Government of
the Republic of Indonesia, acting for and on behalf of the Government
of the Republic of Indonesia, and FI, together with any related
Implementation Agreement or Memorandum of Understanding with such
Ministry of Mines acting on behalf of the Government of the Republic
of Indonesia, as such agreement may be implemented, supplemented or
amended as permitted hereby from time to time.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, and "Controlling" and
"Controlled" shall have meanings correlative thereto.
"Corporate Group Facility" means this Agreement and the FI
Credit Agreement.
"Corporate Group Loan Exposure" means the sum of Loan
Exposure plus FI Credit Agreement Loan Exposure.
"Corporate Group Loans" means the Loans made hereunder and
the FI Credit Agreement Loans made under the FI Credit Agreement.
"Corporate Group Notes" means the Promissory Notes and the
FI Agreement Notes.
"Credit Event" means the making of a Loan.
"Debt" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person for the unearned
balance of any payment received under any contract outstanding for 180
days, (d) all obligations of such Person under conditional sale or
other title retention agreements relating to property or assets
purchased by such Person, (e) all obligations of such Person issued or
assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in
the ordinary course of business so long as the same are not 180 days
overdue or, if overdue, are being contested in good faith and by
appropriate proceedings), (f) all Debt of others secured by (or for
which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by
such Person, whether or not the obligations secured thereby have been
assumed, (g) all Guarantees by such Person of Debt of others, (h) all
Capitalized Lease Obligations of such Person, (i) all recourse
obligations of such Person with respect to sales of accounts
receivable which would be shown under GAAP on the balance sheet of
such Person as a liability, (j) all obligations of such Person as an
account party (including reimbursement obligations to the issuer of a
letter of credit) in respect of bankers' acceptances and letters of
credit Guaranteeing Debt and (k) all non-contingent obligations of
such Person as an account party (including reimbursement obligations
to the issuer of a letter of credit) in respect of letters of credit
other than those referred to in clause (j) above. The Debt of any
Person shall include the Debt of any partnership in which such Person
is a general partner but shall exclude obligations under leases which
are characterized as Operating Leases.
"Default" means any event or condition which upon the giving
of notice or lapse of time or both would become an Event of Default.
"Depositary" means Chase in its capacity as Depositary under
the FI Trust Agreement for the Sales Proceeds Account and the Special
Account.
"Dollars" or "$" means United States Dollars.
"Domestic Office" means, for any Bank, the Domestic Office
set forth for such Bank on the signature pages hereof, unless such
Bank shall designate a different Domestic Office by notice in writing
to the Administrative Agent and the Borrowers.
"EBITDA" means, for any fiscal quarter, the sum of FI's or
FCX's, as applicable (a) consolidated net income (loss) after taxes
(before deducting minority interests in net income (loss) of
consolidated subsidiaries, but disregarding all extraordinary or
unusual noncash items in calculating such net income);
(b) consolidated interest paid or accrued on the Loans to FI or FCX,
as applicable, and on other consolidated Debt of FI (including, in the
case of FI, intercompany Debt owed to FCX) or FCX, as applicable,
during such quarter and deducted in determining consolidated net
income; (c) consolidated depreciation, depletion and amortization
charges deducted in computing FI's or FCX's, as applicable,
consolidated net income; and (d) provision for income taxes deducted
in computing FI's or FCX's, as applicable, consolidated net income;
provided that such calculations of items (a) through (d) will exclude
items relating to Nonrestricted Subsidiaries.
"EBITDA Ratio" means at the end of any fiscal quarter, the
cumulative sum, for the four consecutive fiscal quarters ending with
such quarter, for FI or FCX, as applicable, of (a) EBITDA to (b)
consolidated interest expense and capitalized interest paid or accrued
on consolidated Debt of FI (including, in the case of FI, intercompany
Debt owed to FCX) or FCX, as applicable, including the Corporate Group
Loans and outstanding intercompany Debt, during such period; provided
that such calculations of items (a) and (b) will exclude items
relating to Nonrestricted Subsidiaries.
"environment" shall mean ambient air, surface water and
groundwater (including potable water, navigable water and wetlands),
the land surface or subsurface strata or as otherwise defined in any
Environmental Law.
"Environmental Claim" means any written notice of violation,
claim, demand, order, directive, cost recovery action or other cause
of action by, or on behalf of, any Governmental Authority or any
Person for damages, injunctive or equitable relief, personal injury
(including sickness, disease or death), Remedial Action costs,
tangible or intangible property damage, natural resource damages,
nuisance, pollution, any adverse effect on the environment caused by
any Hazardous Material, or for fines, penalties or restrictions,
resulting from or based upon: (a) the existence, or the continuation
of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases); (b) exposure to any Hazardous
Material; (c) the presence, use, handling, transportation, storage,
treatment or disposal of any Hazardous Material; or (d) the violation
of any Environmental Law or Environmental Permit.
"Environmental Law" means any and all applicable treaties,
laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in
any way to the environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters (and, in the case
of FI, the equivalent substances to which the Contract of Work or the
environmental Governmental Rules of Indonesia apply), including the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended by the Superfund Amendments and Reauthorization
Act of 1986, 42 U.S.C. Section 9601 et seq. (collectively "CERCLA"),
the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Amendments of 1984,
42 U.S.C. Section 6901 et seq., the Federal Water Pollution Control
Act, as amended by the Clean Water Act of 1977, 33 U.S.C. Section 1251
et seq., the Clean Air Act of 1970, as amended 42 U.S.C. Section 7401
et seq., the Toxic Substances Control Act of 1976, 15 U.S.C.
Section 2601 et seq., the Occupational Safety and Health Act of 1970,
as amended, 29 U.S.C. Section 651 et seq., the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.,
the Safe Drinking Water Act of 1974, as amended, 42 U.S.C.
Section 300(f) et seq., the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801 et seq., and any similar or implementing state
or local law, and all amendments or regulations promulgated
thereunder.
"Environmental Permit" means any permit, approval,
authorization, certificate, license, variance, filing or permission
required by or from any Governmental Authority pursuant to any
Environmental Law.
"Equity Payment" means (i) any dividend on, or purchase,
redemption or other payment, whether in cash or in kind, in respect
of, the capital stock of FCX or FI, as applicable, (ii) purchases by
FI of capital stock of FCX and (iii) purchases by FCX of capital stock
of FI.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or
not incorporated), that together with a Borrower, is treated as a
single employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"ERISA Event" means (i) any "reportable event", as defined
in Section 4043 of ERISA or the regulations issued thereunder, with
respect to a Plan; (ii) the adoption of any amendment to a Plan that
would require the provision of security pursuant to Section 401(a)(29)
of the Code; (iii) the existence with respect to any Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the
Code), whether or not waived; (iv) the incurrence of any liability
under Title IV of ERISA with respect to any Plan or Multiemployer
Plan, other than any liability for contributions not yet due or
payment of premiums not yet due; (v) the receipt by a Borrower or any
ERISA Affiliate from the PBGC of any notice relating to the intention
of the PBGC to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (vi) the receipt by a Borrower or any ERISA
Affiliate of any notice concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; and (vii) any other similar event or condition with
respect to a Plan or Multiemployer Plan that could reasonably result
in liability of a Borrower.
"Event of Default" means any Event of Default defined in
Article VII.
"FCX Borrowing Base Debt" means (i) all Debt of FCX
(including Loans to FCX but including only one-half of the principal
amount of Subordinated Debt of FCX and excluding (x) all Debt, the
proceeds of which were on-loaned to FI giving rise to Debt which
constitutes FI Borrowing Base Debt, and (y) the Guarantee referred to
in Section 5.2(g)(ix)), minus FCX Free Cash divided by (ii) FCX's
direct and indirect percentage ownership interest in FI.
"FCX Collateral Agent" means Chemical in its capacity as FCX
Collateral Agent for the Banks, the FI Lenders, the FM Lenders, the
Pel-Tex Bank Lenders, TCB and the holders of the BV Notes under the
FCX Pledge Agreements.
"FCX/FMPO Guarantee" means the Guaranty Agreement dated as
of the FCX Funding Date, as such agreement may be amended and in
effect from time to time, by FCX in respect of the Circle C Agreement,
the FM Credit Agreement and the Pel-Tex Agreement (as such term is
defined in the FCX Intercreditor Agreement).
"FCX Free Cash" means the lesser of (i) the then outstanding
FCX Borrowing Base Debt (calculated without subtracting FCX Free Cash)
and (ii) 95% of all amounts above $30,000,000 held by FCX on an
unconsolidated basis in unencumbered cash or unencumbered Permitted
Investments.
"FCX Funding Date" has the meaning assigned to such term in
Section 6.1(a).
"FCX Indonesian Pledge Agreement" means the pledge agreement
substantially in the form of Exhibit E-2 between FCX and the FCX
Collateral Agent pursuant to which FCX creates a perfected first
priority security interest under Indonesian law in 50.1% (on a fully
diluted basis) of the capital stock of FI for the ratable benefit of
the Banks, the holders of the B.V. Notes, the FM Lenders, the Pel-Tex
Lenders, TCB and the FI Lenders.
"FCX Intercreditor Agreement" means the Intercreditor
Agreement entered into as of the FCX Funding Date in the form attached
hereto as Exhibit H, among the Administrative Agent on behalf of the
Banks, the FM Agent on behalf of the FM Lenders, Hibernia National
Bank as agent for the Pel-Tex Lenders, the FI Agent on behalf of the
FI Lenders, TCB and Chemical, as FCX Collateral Agent, as such
agreement may be further amended and in effect from time to time.
"FCX Pledge Agreements" means the FCX U.S. Pledge Agreement
and FCX Indonesian Pledge Agreement.
"FCX U.S. Pledge Agreement" means the pledge agreement
substantially in the form of Exhibit E-1 between FCX and the FCX
Collateral Agent pursuant to which FCX creates a perfected first
priority security interest under U.S. law in 50.1% (on a fully diluted
basis) of the capital stock of FI for the ratable benefit of the
Banks, the holders of the B.V. Notes, the FM Lenders, the Pel-Tex
Lenders, TCB and the FI Lenders.
"FI Agent" means Chemical as agent for the FI Lenders under
the FI Credit Agreement.
"FI Agreement Notes" means the promissory notes of FI issued
to the FI Lenders pursuant to the FI Credit Agreement.
"FI Borrowing Base Debt" means, without duplication, (x) all
Debt of FI, including the Corporate Group Loans to FI but excluding
all outstanding indebtedness under the RTZ Loan Agreement and
Subordinated Debt of FI to the extent (a) in the case of Subordinated
Debt from FI to FCX reflecting preferred stock of FCX without
mandatory redemption provisions prior to the Maturity Date, the
principal and interest on such Subordinated Debt was deducted from
cash flows during the remaining period until the Maturity Date in the
most recent Borrowing Base Certificate and (b) in the case of other
Subordinated Debt of FI, all scheduled principal and interest thereon
were deducted from cash flows in the most recent Borrowing Base
Certificate (provided further that if principal and interest on any
Subordinated Debt is not reflected in the most recent Borrowing Base
Certificate, 50% of the principal amount of such Subordinated Debt
shall be included as FI Borrowing Base Debt), minus (y) FI Free Cash.
"FI Collateral and Rights" has the meaning assigned to such
term in Section 5.2(o).
"FI Credit Agreement" means the Credit Agreement entered
into as of October 27, 1989, among FI, FCX, the FI Lenders, the FI
Trustee, the FCX Collateral Agent, Chase as documentary agent for the
FI Lenders, and the FI Agent, as amended through the effective date of
the Amendment Agreement and as the same may be further amended and in
effect from time to time.
"FI Credit Agreement Loan" means any loan made by the FI
Lenders pursuant to the FI Credit Agreement.
"FI Credit Agreement Loan Exposure" means the aggregate
amount of unpaid principal of all FI Credit Agreement Loans made by
the FI Lenders.
"FI Credit Agreement Total Commitment" means $550,000,000,
the committed amount under the FI Credit Agreement, as the same may be
permanently terminated or reduced from time to time.
"FI Credit Event" means the making of an FI Credit Agreement
Loan.
"FI Free Cash" means the lesser of (i) the then outstanding
FI Borrowing Base Debt (calculated without subtracting FI Free Cash)
and (ii) 95% of all amounts above $30,000,000 held by FI on an
unconsolidated basis in unencumbered cash or unencumbered Permitted
Investments.
"FI Funding Date" has the meaning assigned to such term in
Section 6.1(b).
"FI Intercreditor Agreement" means the Intercreditor
Agreement entered into as of the RTZ Closing Date in the form to be
agreed pursuant to Section 10.17 and attached hereto as Exhibit I,
among the Administrative Agent on behalf of the Banks, the FI Agent on
behalf of the FI Lenders, RTZ Lender, PT-RTZ and the FI Trustee, as
such agreement may be further amended and in effect from time to time.
"FI Lenders" means the banks party to the FI Credit
Agreement.
"FI Obligations" has the meaning assigned to such term in
Section 9.1.
"FI Product" means ores or minerals produced by the FI
Project or otherwise obtained from the Mining Area (as defined in the
Contract of Work) and any kinds of products, including, without
limitation, concentrates, produced from such ores or minerals.
"FI Project" means the mining, concentrating and related
operations conducted or to be conducted by FI in Irian Jaya,
Indonesia, pursuant to the Contract of Work.
"FI Receivables Purchase Agreement" means any agreement
entered into by FI with respect to the sale by FI of accounts
receivable.
"FI Security Documents" means the FI Trust Agreement, the
Surat Kuasa, the Fiduciary Transfer, the Fiduciary Assignment, the
Fiduciary Power and all Uniform Commercial Code financing statements
and their Indonesian equivalents required to be filed hereunder or
under the FI Security Documents.
"FI Trust Agreement" means the Interim FI Trust Agreement or
the Final FI Trust Agreement, as then applicable.
"FI Trustee" means First Trust of New York, National
Association, or any successor trustee, as trustee for the Banks and
the FI Lenders pursuant to the FI Trust Agreement and, in such
capacity, as security agent for the Banks and the FI Lenders under the
FI Security Documents.
"Fiduciary Assignment" means the Interim Fiduciary
Assignment or the Final Fiduciary Assignment, as then applicable.
"Fiduciary Power" means the Interim Fiduciary Power or the
Final Fiduciary Power, as then applicable.
"Fiduciary Transfer" means the Interim Fiduciary Transfer or
the Final Fiduciary Transfer, as then applicable.
"Final FI Trust Agreement" means the Trust Agreement dated
as of May 15, 1970, among FI, PT-RTZ, the Depositary and the FI
Trustee (as successor to Morgan Guaranty Trust Company of New York),
as amended in the form to be agreed pursuant to Section 10.17 and
attached as Exhibit G-1 as of the RTZ Closing Date and as further
amended and in effect from time to time thereafter.
"Final Fiduciary Assignment" means the Fiduciary Assignment
of Accounts Receivable (the Penyerahan Hak Atas Tagihan) dated
December 30, 1991, granted by FI to the FI Trustee, as the same may be
amended in the form to be agreed pursuant to Section 10.17 and
attached as Exhibit G-5 as of the RTZ Closing Date and as further
amended and in effect from time to time thereafter.
"Final Fiduciary Power" means the Power of Attorney to
Establish Fiduciary Transfer (Kuasa Untuk Memasang Penyerahan Hak
Milik Fidusia) dated December 30, 1991, granted by FI to the FI
Trustee (the "Amended Fiduciary Power"), as the same may be amended in
the form to be agreed pursuant to Section 10.17 and attached as
Exhibit G-4 as of the RTZ Closing Date and as further amended and in
effect from time to time thereafter.
"Final Fiduciary Transfer" means the Fiduciary Transfer of
Assets (Penyerahan Hak Secara Fidusia) dated December 30, 1991,
granted by FI to the FI Trustee, as the same may be amended and in the
form to be agreed pursuant to Section 10.17 and attached as Exhibit G-
3 as of the RTZ Closing Date and as further amended and in effect from
time to time thereafter.
"Final Surat Kuasa" means the Surat Kuasa (Power of
Attorney) dated December 30, 1991, granted by FI to the FI Trustee as
the same may be amended in the form to be agreed pursuant to Section
10.17 and attached as Exhibit G-2 as of the RTZ Closing Dated and as
further amended and in effect from time to time thereafter.
"Financial Officer" of any corporation means the principal
financial officer, principal accounting officer, treasurer, assistant
treasurer or controller of such corporation.
"FM Agent" means Chemical as administrative agent for the FM
Lenders.
"FM Credit Agreement" means the Credit Agreement dated as of
June 30, 1995, among FM Properties, FTX, FCX, the banks party thereto,
the FM Agent and Chase, as documentary agent for such banks, as the
same may be amended or replaced from time to time.
"FM Lenders" means the banks party to the FM Credit
Agreement.
"FM Properties" means FM Properties Operating Co., a
Delaware general partnership whose partners are FTX and FM Properties,
Inc.
"FRP" means Freeport-McMoRan Resource Partners, Limited
Partnership, a Delaware limited partnership.
"FTX" means Freeport-McMoRan Inc., a Delaware corporation.
"GAAP" has the meaning assigned to such term in Section 1.2.
"Governmental Authority" means any United States or
Indonesian Federal, state, local or any foreign court or governmental
agency, authority, instrumentality or regulatory body.
"Governmental Rule" means any statute, law, treaty, rule,
code, ordinance, regulation, permit, certificate or order of any
Governmental Authority or any judgment, decree, injunction, writ,
order or like action of any court, arbitrator or other judicial or
quasijudicial tribunal.
"Guarantee" means, with respect to any Person, any
obligation, contingent or otherwise, of such Person guaranteeing or
having the economic effect of guaranteeing any Debt or obligation of
any other Person in any manner, whether directly or indirectly, and
including, without limitation, any agreement or obligation (i) to pay
dividends or other distributions upon the stock of such other Person,
or any obligation of such other Person, direct or indirect, (ii) to
purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or obligation or to purchase (or advance or
supply funds for the purchase of) any security for the payment of such
Debt, obligation, dividend or distribution, (iii) to purchase or lease
property, securities or services for the purpose of assuring the owner
of such Debt or obligation or the holder of such stock of the payment
of such Debt, obligation, dividend or distribution including, without
limitation, any take-or-pay contract or agreement to buy a minimum
amount or quantity of production or to provide an operating subsidy
which, in each case, is utilized for a third party financing, or
(iv) to maintain working capital, equity capital or any other
financial statement condition of the primary obligor, so as to enable
the primary obligor to pay such Debt, obligation, dividend or
distribution; provided, however, that the term Guarantee shall not
include any endorsement for collection or deposit in the ordinary
course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes, hazardous or toxic substances or wastes,
pollutants, solid, liquid or gaseous wastes, including petroleum or
petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls ("PCBs") or PCB-containing materials or
equipment, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedge Agreement" means any interest rate, currency or
commodity swap, cap, floor or collar agreement or similar hedging
arrangement providing for the transfer or mitigation of interest rate,
commodity price or currency value or exchange rate risks, either
generally or under specific contingencies.
"Implementation Agreement" means the Implementation
Agreement dated as of May 2, 1995, between FCX and RTZ as approved by
the Banks (it being understood and agreed that the form of the
documents attached thereto as Exhibits, including without limitation
the Participation Agreement, the RTZ Loan Agreement and any assignment
of FI's interest in the Contract of Work or the FI Project, are
subject to the approval of the Banks pursuant to Section 10.17) and in
effect on the Closing Date and as amended from time to time as
permitted by Section 5.3.
"Index Debt" means the senior, unsecured, non-credit
enhanced, long-term indebtedness for borrowed money of FCX, or if no
such indebtedness of FCX is then rated by Moody's or S&P, the B.V.
Notes so long as the B.V. Notes are rated by Moody's and S&P.
"Indocopper Shareholders Agreement" means the Amended and
Restated Shareholders Agreement dated as of November 12, 1992, by and
among P.T. Indocopper Investama Corporation, FCX, certain individuals
and P.T. Bakrie Investindo.
"Indonesian Taxes" means all present and future income,
franchise, stamp, property and other taxes, levies, imposts,
deductions, charges, compulsory loans and withholdings whatsoever
imposed, assessed, levied or collected by Indonesia or any political
subdivision or taxing authority thereof or therein or any association
or organization of which Indonesia may be a member (but excluding
taxes or other similar governmental charges, fees or assessments
imposed upon the net income of, or any franchise taxes imposed on, the
Administrative Agent, the FI Trustee or any Bank (or Transferee) which
has its principal office in Indonesia or a branch office in Indonesia,
unless and to the extent attributable to the enforcement of any rights
hereunder or under any FI Security Document with respect to an Event
of Default), together with interest thereon and penalties, fines and
surcharges and other liabilities with respect thereto, if any, on or
in respect of this Agreement, the Loans to FI, the FI Security
Documents, the Assigned Agreements or the Corporate Group Notes of FI,
the execution enforcement, registration, recordation, notarization, or
other formalization, of any thereof, and any payments of principal,
interest, charges, fees or other amounts made on, under or in respect
of any thereof.
"Interest Payment Date" means (i) as to any Reference Rate
Loan, the next succeeding March 31, June 30, September 30 or
December 31 (subject to Section 3.16), or if earlier, the Maturity
Date, and (ii) as to any LIBO Rate Loan, the last day of the Interest
Period applicable to such Loan (and, in the case of any Interest
Period of more than three months' duration, the date that would be the
last day of such Interest Period if such Interest Period were of three
months' duration) and the date of any continuation or conversion of
such Loan as or into a Loan of the same or a different type.
"Interest Period" means (i) as to any LIBO Rate Loan, the
period commencing on the date of such LIBO Rate Loan or on the last
day of the immediately preceding Interest Period applicable to such
Loan, as the case may be, and ending on the numerically corresponding
day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as
the applicable Borrower may elect, and (ii) as to any Reference Rate
Loan, the period commencing on the date of such Reference Rate Loan or
on the last day of the immediately preceding Interest Period
applicable to such Loan, as the case may be, and ending on the
earliest of (x) the next succeeding March 31, June 30, September 30 or
December 31, (y) the Maturity Date and (z) the date such Loan is
prepaid or converted as permitted hereby; provided, however, that
(1) if any Interest Period would end on a day that shall not be a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, with respect to LIBO Rate Loans only,
such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next
preceding Business Day, (2) no Interest Period with respect to any
Loan shall end later than the Maturity Date and (3) interest shall
accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Interim FI Trust Agreement" means the Trust Agreement dated
as of May 15, 1970, among FI, the Depositary and the FI Trustee (as
successor to Morgan Guaranty Trust Company of New York), as amended in
the form of Exhibit F-1 as of the FCX Funding Date and as further
amended and in effect from time to time prior to the RTZ Closing Date.
"Interim Fiduciary Assignment" means the Fiduciary
Assignment of Accounts Receivable (the Penyerahan Hak Atas Tagihan)
dated December 30, 1991, granted by FI to the FI Trustee, as the same
may be amended in the form of Exhibit F-5 as of the FCX Funding Date
and as further amended and in effect from time to time prior to the
RTZ Closing Date.
"Interim Fiduciary Power" means the Power of Attorney to
Establish Fiduciary Transfer (Kuasa Untuk Memasang Penyerahan Hak
Milik Fidusia) dated December 30, 1991, granted by FI to the FI
Trustee (the "Amended Fiduciary Power"), as the same may be amended in
the form of Exhibit F-4 as of the FCX Funding Date and as further
amended and in effect from time to time prior to the RTZ Closing Date.
"Interim Fiduciary Transfer" means the Fiduciary Transfer of
Assets (Penyerahan Hak Secara Fidusia) dated December 30, 1991,
granted by FI to the FI Trustee, as the same may be amended and in the
form of Exhibit F-3 as of the FCX Funding Date and as further amended
and in effect from time to time prior to the RTZ Closing Date.
"Interim Surat Kuasa" means the Surat Kuasa (Power of
Attorney) dated December 30, 1991, granted by FI to the FI Trustee as
the same may be amended in the form of Exhibit F-2 as of the FCX
Funding Date and as further amended and in effect from time to time
prior to the RTZ Closing Date.
"Jaya Power" means P.T. Puncakjaya Power, a limited
liability company organized under Indonesian law, the shareholders of
which are FI and Affiliates of Duke Energy Corp., PowerLink
Corporation and P.T. Austindo Nusantara Jaya.
"LIBO Rate" means, with respect to any LIBO Rate Loan for
any Interest Period, an interest rate per annum (rounded upwards, if
not already a whole multiple of 1/100 of 1%, to the next higher 1/100
of 1%) equal to the arithmetic average of the respective rates per
annum at which Dollar deposits approximately equal in principal amount
to the Reference Banks' portions of such LIBO Rate Loan and for a
maturity equal to the applicable Interest Period are offered in
immediately available funds to the principal London offices of the
Reference Banks in the London Interbank Market at approximately
11:00 a.m., London time, two Business Days prior to the commencement
of such Interest Period.
"LIBO Rate Loan" means any Loan for which interest is
determined, in accordance with the provisions hereof, at the
Applicable LIBO Rate.
"LIBOR Office" means, for any Bank, the LIBOR Office set
forth for such Bank on the signature pages hereof or as otherwise
notified in writing to the Agent and the Borrowers, unless such Bank
shall designate a different LIBOR Office by notice in writing to the
Administrative Agent and the Borrowers.
"Lien" means with respect to any asset, (a) a mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or
on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement
relating to such asset, (c) in the case of securities, any purchase
option, call or similar right of a third party with respect to such
securities and (d) other encumbrances of any kind, including, without
limitation, production payment obligations.
"Loan" means any loan made pursuant to Section 3.1.
"Loan Documents" means the Amendment Agreement, the
Corporate Group Facilities, the Corporate Group Notes, the FCX Pledge
Agreements, the FCX Intercreditor Agreement, the FI Intercreditor
Agreement, the FI Security Documents and all other agreements,
certificates and instruments now or hereafter entered into in
connection with any of the foregoing, in each case as amended and
modified from time to time.
"Loan Exposure" means the aggregate amount of unpaid
principal of all Loans made by the Banks.
"Major Concentrate Sales Agreement" means any Concentrate
Sales Agreement with aggregate sales during the term thereof of at
least $75,000,000.
"Margin Stock" has the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" means (a) a materially adverse
effect on the business, assets, operations, prospects or condition,
financial or otherwise, of a Borrower and its Subsidiaries taken as a
whole, (b) material impairment of the ability of a Borrower or any of
its Subsidiaries to perform any of its obligations under any Loan
Document to which it is or will be a party or (c) material impairment
of the rights of or benefits available to the Banks under any Loan
Document.
"Maturity Date" means December 31, 1999, or, if earlier, the
date of termination of the Commitments pursuant to the terms hereof.
"Memorandum of Understanding" means the Memorandum of
Understanding dated as of December 27, 1991, between the Ministry of
Mines and Energy of the Government of the Republic of Indonesia, and
FI as amended, modified or supplemented as permitted hereby from time
to time.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined
in Section 4001(a)(3) of ERISA to which a Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Net Proceeds" means (i) the gross fair market value of the
consideration or other amounts payable to or receivable by FI or any
Restricted Subsidiary of FI in respect of any Net Proceeds Transaction
less (ii) the amount, if any, of all taxes (but only to the extent
such Person reasonably estimates that such taxes will be paid on the
date of the next tax filing by such Person or such affiliate of such
Person), and reasonable and customary fees, commissions, costs and
other expenses (other than those payable to the Borrowers or any
Restricted Subsidiary) which are incurred in connection with such Net
Proceeds Transaction and are payable by the seller or the transferor
of the assets or property subject to such Net Proceeds Transaction,
but only to the extent not already deducted in arriving at the amount
referred to in clause (i), and less (iii) amounts used within 120 days
from the date of closing or effectiveness of the Net Proceeds
Transaction by the seller or transferor to purchase other assets used
in the business of it and its Wholly Owned Restricted Subsidiaries and
not pledged or encumbered to any other Person.
"Net Proceeds Transactions" means any sales, transfers,
distributions or other dispositions (including by merger or
consolidation) of assets or properties (including any capital or other
equity interests) owned by FI or its Restricted Subsidiaries, but
excluding (a) the ALatieF Transaction, the PFT Transaction, the P&O
Transaction, the Airfast Transaction and the Waste Water Transaction,
(b) sale and leaseback transactions permitted by Section 5.2(g)(vi),
(c) dispositions of obsolete or worn-out property or real estate not
used or useful in its business, (d) permitted transfers of assets from
the Borrowers to a Restricted Subsidiary or from a Restricted
Subsidiary to the Borrowers or another Restricted Subsidiary,
(e) sales or other dispositions of Nonrestricted Subsidiaries or
interests therein, (f) sales or other dispositions by Nonrestricted
Subsidiaries of their assets, (g) direct sales of equity by FI or a
Restricted Subsidiary of FI, (h) sales of accounts receivable,
(i) transfers of assets pursuant to permitted sale and leaseback
transactions and (j) the granting of the RTZ Interests to PT-RTZ as
contemplated by the Participation Agreement.
"1994 Form l0-K" has the meaning assigned to such term in
Section 4.1(e).
"Nonrestricted Subsidiary" means (i) any of the Subsidiaries
listed on Schedule III hereto as a Nonrestricted Subsidiary, (ii) any
Subsidiary of any Nonrestricted Subsidiary and (iii) any surviving
corporation (other than a Borrower or a Restricted Subsidiary) into
which any of such corporations referred to in clause (i) or (ii) is
merged or consolidated, subject to Section 5.2(c), and (iv) any
Subsidiary organized after the date of this Agreement for the purpose
of acquiring the stock or assets of another Person or for start-up
ventures or exploration programs or activities and designated as a
Nonrestricted Subsidiary by FCX at the time of its organization. By
written notice to the Administrative Agent, FCX may (x) declare any
Nonrestricted Subsidiary to be a Restricted Subsidiary and such former
Nonrestricted Subsidiary shall thereafter be deemed to be a Restricted
Subsidiary for all purposes of this Agreement or (y) at any time other
than when a Default or Event of Default has occurred and is continuing
or would exist after giving effect to such declaration, in any fiscal
year, declare one or more Restricted Subsidiaries, the interest of FCX
in all of which has an equity value or loan investment of less than
$5,000,000 in the aggregate, to be a Nonrestricted Subsidiary and any
such former Restricted Subsidiary shall thereafter be deemed to be a
Nonrestricted Subsidiary for all purposes of this Agreement.
"Operating Lease" means any lease other than a lease giving
rise to a Capitalized Lease Obligation.
"Participation Agreement" means the Participation Agreement
between FI and PT-RTZ as approved by the Banks pursuant to Section
10.17 and in effect on the RTZ Closing Date and as amended from time
to time as permitted by Section 5.3.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"Pel-Tex Lenders" has the meaning assigned to such term in
the FCX Intercreditor Agreement.
"Permitted Investments" means (a) certificates of deposit
of, or other bank accounts with, banks (or with their branches) having
a short-term deposit rating issued by Moody's of P-l; (b) investments
in readily marketable money market funds having assets in excess of
one billion dollars, which assets have an average life of less than
one year and an average quality of at least "A" as rated by S&P or
Moody's; and (c) commercial paper rated A-1 by S&P or P-l by Moody's.
"Permitted Secured Hedge" means any Hedge Agreement between
FI or FCX and any Bank that shall be ratably secured pursuant to
(x) the FCX Pledge Agreements, in the case of such Hedge Agreements
with FCX, or (y) in the case of any such Hedge Agreements with FI, the
FI Security Documents.
"Person" means any natural person, corporation, partnership,
joint venture, trust, incorporated or unincorporated association,
joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"PFT Assets" means certain specified power generation and
transmission assets sold by FI to Jaya Power pursuant to the PFT
Documents.
"PFT Documents" means the agreements governing the PFT
Transaction as in effect on the Closing Date and as amended from time
to time as permitted by Section 5.2(o).
"PFT Obligations" mean all the obligations of FI relating to
the PFT Transaction.
"PFT Transaction" means FI's sale of the PFT Assets to Jaya
Power, the related financing transaction for such purchase, the
entering into various contracts relating to the supply and purchase of
the electric power generated from the PFT Assets and the making by FI
an equity investment of up to $17,750,000 in Jaya Power, all
substantially on the terms described in the PFT Documents.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) which is subject to the provisions of Title IV of
ERISA or Section 412 of the Code and in respect of which a Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Policies", with respect to the Administrative Agent and any
Bank in connection with determinations relating to the Borrowing Base,
means the normal policy guidelines on price parameters, cost
escalations and discount and other factors and technical assumptions
customarily used by the Administrative Agent or such Bank in
evaluating energy and natural resource-related credits.
"Portfolio Investments" means customary portfolio cash
management investments made pursuant to prudent cash management
practices.
"Power Facilities Transfer" means, collectively, each
transfer by FI of electric power generation and transmission
facilities with arrangements providing for the continued supply of
electric power to the FI Project, all as required by the
PFT Documents.
"P&O" means ALatieF P&O Port Development Company, a joint
venture company incorporated in Indonesia with shareholdings by P&O
Australia Limited, ALatieF and certain other Persons.
"P&O Assets" means certain specified port facilities,
construction and maintenance-related assets transferred by FI to P&O
pursuant to the P&O Documents.
"P&O Documents" means the agreements governing the sale and
leaseback transaction between FI and P&O as in effect on the Closing
Date and as amended from time to time as permitted by Section 5.2(o).
"P&O Obligations" mean all obligations of FI relating to the
P&O Transaction.
"P&O Transaction" means FI's sale of the P&O Assets to P&O,
the entering into of various contracts relating to the use by FI of
the P&O Assets and the related financing, all substantially as
provided in the P&O Documents.
"Promissory Notes" means the promissory notes of FI and FCX
referred to in Section 3.4.
"Properties" has the meaning assigned such term in
Section 4.1(n)(1).
"PT-RTZ" means a limited liability company organized under
the laws of Indonesia and a wholly owned subsidiary of RTZ.
"Reference Banks" means Chemical and Chase.
"Reference Rate Loan" means any Loan for which interest is
determined, in accordance with the provisions hereof, at the
Applicable Reference Rate.
"Register" has the meaning assigned such term in
Section 10.3(d).
"Regulation D" means Regulation D of the Board as from time
to time in effect and all official rulings and interpretations
thereunder or thereof.
"Regulation G" means Regulation G of the Board as from time
to time in effect and all official rulings and interpretations
thereunder or thereof.
"Regulation U" means Regulation U of the Board as from time
to time in effect and all official rulings and interpretations
thereunder or thereof.
"Regulation X" means Regulation X of the Board as from time
to time in effect and all official rulings and interpretations
thereunder or thereof.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, disposing, depositing, dispersing, emanating or migrating of
any Hazardous Material in, into, onto or through the environment.
"Remedial Action" means (a) "remedial action" as such term
is defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other
actions required by any Governmental Authority or voluntarily
undertaken to: (i) cleanup, remove, treat, abate or in any other way
address any Hazardous Material in the environment; (ii) prevent the
Release or threat of Release, or minimize the further Release of any
Hazardous Material so it does not migrate or endanger or threaten to
endanger public health, welfare or the environment; or (iii) perform
studies and investigations in connection with, or as a precondition
to, (i) or (ii) above.
"Required Banks" means, subject to Section 10.7(b), at any
time Banks having Commitments representing at least 66-2/3% of the
aggregate Commitments hereunder or, if the Commitments have been
terminated, Banks holding Loans representing at least 66 2/3% of the
aggregate principal amount of the Loans.
"Responsible Officer" of any corporation means any executive
officer or Financial Officer of such corporation and any other officer
or similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement.
"Restricted Subsidiary" means FI and any other Subsidiary of
FCX or FI that is not a Nonrestricted Subsidiary.
"Restructuring" means the transactions between FTX and FCX
(on the one hand) and RTZ, RTZ Indonesia and RTZ America (on the other
hand) pursuant to the Stock Purchase Agreement, and the distribution
on a generally tax free basis (subject to exceptions approved by the
Administrative Agent and the Documentary Agent) by FTX to its
shareholders of the shares of FCX, thereby leaving FTX as a holding
company for FRP and leaving FCX as the publicly held holding company
for FI, together with arrangements required by or effectuated in
connection with such distribution with respect to existing contractual
agreements and indebtedness of FTX, FRP, FCX and FI, all on terms
substantially the same as those disclosed in writing to the Banks
prior to the Closing Date or otherwise satisfactory to the Required
Banks (including all tax, accounting, corporate and partnership
matters).
"RTZ" means the RTZ Corporation PLC, a company organized
under the laws of England.
"RTZ America" means RTZ America, Inc., a Delaware
corporation and a wholly owned subsidiary of RTZ.
"RTZ Closing Date" has the meaning assigned to such term in
Section 6.1(c).
"RTZ Collateral" means FI's 60% share of Incremental
Expansion Cashflow (as defined in the Participation Agreement) pledged
to RTZ Lender as contemplated by the RTZ Loan Agreement.
"RTZ Indonesia" means RTZ Indonesia Limited, a company
organized under the laws of England and a wholly owned subsidiary of
RTZ.
"RTZ Interests" means the interests of PT-RTZ in the
Contract of Work and in the Joint Operations, Sole Risk Programmes of
RTZ and the Joint Account Assets (as such terms are defined in the
Participation Agreement) as permitted by Section 5.3, the FI
Intercreditor Agreement and the FI Trust Agreement.
"RTZ Lender" means a company to be organized pursuant to the
Participation Agreement under the laws of England and a wholly owned
subsidiary of RTZ.
"RTZ Loan Agreement" means the Loan Agreement between the
RTZ Lender and FI as approved by the Banks pursuant to Section 10.17
and in effect on the RTZ Closing Date and as amended from time to time
as permitted by Section 5.3.
"RTZ Transactions" means the transactions contemplated by
the Implementation Agreement, the Participation Agreement and the RTZ
Loan Agreement as described in Schedule VII and as otherwise approved
by the Banks pursuant to Section 10.17.
"Sales Proceeds Account" has the meaning assigned to such
term in the FI Trust Agreement.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"SEC" means the Securities and Exchange Commission.
"Special Account" has the meaning assigned to such term in
the FI Trust Agreement.
"Specified Assets" means those assets released from the Lien
of the FI Security Documents and transferred by FI as required by the
Specified Documents.
"Specified Documents" mean the Airfast Documents, the
AlatieF-FI Documents, the Caterpillar Documents, the PFT Documents,
the P&O Documents and the Waste Water Documents.
"Specified Obligations" mean the Airfast Obligations, the
ALatieF-FI Obligations, the Caterpillar Obligations, the PFT
Obligations, the P&O Obligations and the Waste Water Obligations.
"Specified Transactions" mean the Airfast Transaction, the
AlatieF-FI Transaction, the Caterpillar Transaction, the PFT
Transaction, the P&O Transaction and the Waste Water Transaction.
"Statutory Reserves" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator
of which is the number one minus the aggregate of the maximum reserve
percentages (including, without limitation, any marginal, special,
emergency or supplemental reserves) expressed as a decimal established
by the Board and any other banking authority, domestic or foreign, to
which the Administrative Agent or any Bank (including any branch,
Affiliate, or other funding office making or holding a Loan) is
subject (a) with respect to the Base CD Rate (as such term is used in
the definition of "Alternate Base Rate"), for new negotiable
nonpersonal time deposits in Dollars of over $100,000 with maturities
approximately equal to the applicable Interest Period, and (b) with
respect to the LIBO Rate, for Eurocurrency Liabilities (as defined in
Regulation D). Such reserve percentages shall include, without
limitation, those imposed under Regulation D. Statutory Reserves
shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"Stock Purchase Agreement" means the Agreement dated as of
May 2, 1995, by and between FTX, FCX, RTZ, RTZ Indonesia and RTZ
America as approved by the Banks and in effect on the Closing Date and
as amended from time to time as permitted by Section 5.3.
"Subordinated Debt" means Debt of a Borrower which is
subordinated to the Corporate Group Loans on terms approved by the
Administrative Agent.
"Subsidiary" means as to any Person, any corporation at
least a majority of whose securities having ordinary voting power for
the election of directors (other than securities having such power
only by reason of the happening of a contingency) are at the time
owned by such Person and/or one or more other Subsidiaries of such
Person and any partnership (other than joint ventures for which the
intention under the applicable agreements, including operating
agreements, if any, is that such joint ventures be partnerships solely
for purposes of the Code) in which such Person or a Subsidiary of such
Person is a general partner; provided that unless otherwise specified,
"Subsidiary" means a Subsidiary of FCX.
"Surat Kuasa" means the Interim Surat Kuasa or the Final
Surat Kuasa, as then applicable.
"TCB" means Texas Commerce Bank National Association, a
national banking association.
"Third Party" has the meaning assigned to such term in
Section 5.2(l).
"Total Commitment" means the sum of all the then effective
Commitments.
"Transfer Effective Date" has the meaning assigned to such
term in each Commitment Transfer Supplement.
"Transferee" means any Participant or Purchasing Bank, as
such terms are defined in Section 10.3.
"Waste Water" means P.T. Agumar Rust Indonesia a joint
venture company incorporated in Indonesia with shareholdings by Rust
International Holding Inc. and Agumar Lingkungan Mulia Company.
"Waste Water Assets" means certain specified waste water
facilities and assets to be transferred to Waste Water, which assets
are to be released from the Lien of the FI Security Documents as
contemplated by Sections 5.2(r) and Section 8.1(j).
"Waste Water Documents" means the agreements governing the
sale and leaseback transaction between FI and Waste Water on the terms
approved by the Administrative Agent pursuant to the Section 5.2(r),
and as amended from time to time as permitted by Section 5.2(o).
"Waste Water Obligations" mean all obligations of FI
relating to the Waste Water Transaction.
"Waste Water Transaction" means FI's sale of the Waste Water
Assets to Waste Water, the entering into of various contracts relating
to the use by FI of the Waste Water Assets and the related financing,
all substantially as provided in the Waste Water Documents.
"Wholly Owned Restricted Subsidiary" means any Subsidiary
all of the stock of which is at the time owned by FCX, FI and/or one
or more other Wholly Owned Restricted Subsidiaries of either of them.
"Withdrawal Liability" means liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E
of Title IV of ERISA.
SECTION 1.2. Accounting Terms. Except as otherwise herein
specifically provided, each accounting term used herein shall have the
meaning given it under United States generally accepted accounting
principles in effect from time to time (with such changes thereto as
are approved or concurred in from time to time by the Borrowers'
independent public accountants, as applicable) applied on a basis
consistent with those used in preparing the financial statements
referred to in Section 5.1(a) ("GAAP"); provided, however, that each
reference in Section 5.2 hereof, or in the definition of any term used
in Section 5.2 hereof, to GAAP shall mean generally accepted
accounting principles as in effect on the Closing Date and as applied
by the Borrowers in preparing the financial statements referred to in
Section 4.1(e). In the event any change in GAAP materially affects
any provision of this Agreement, the Banks and the Borrowers agree
that they shall negotiate in good faith in order to amend the affected
provisions in such a way as will restore the parties to their
respective positions prior to such change, and until such amendment
becomes effective the Borrowers' compliance with such provisions shall
be determined on the basis of GAAP as in effect immediately before
such change in GAAP became effective.
SECTION 1.3. Section, Article, Exhibit and Schedule
References, etc. Unless otherwise stated, Section, Article, Exhibit
and Schedule references made herein are to Sections, Articles,
Exhibits or Schedules, as the case may be, of this Agreement.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation". Except as otherwise expressly
provided herein, any reference in this Agreement to any Loan Document
shall mean such document as amended, restated, supplemented or
otherwise modified from time to time.
ARTICLE II
Borrowing Base Determinations
SECTION 2.1. Annual Determination of Borrowing Base. As of
the Closing Date, and until the next redetermination of the Borrowing
Base, the Borrowing Base shall be $2,000,000,000. FI shall, on or
prior to April 1 in each year commencing with 1996, furnish to each
Bank a Borrowing Base Certificate dated as of April 1 of such year.
Such Borrowing Base Certificate shall have attached thereto (A) a
report on the operations, results and outlook for the FI Project
prepared by FI and satisfactory to the Administrative Agent and (B) a
schedule setting forth the projected ownership interest of FI and FCX
in each of the Restricted Subsidiaries and FCX's projected ownership
interest in FI and the projected cash flow associated with the FI
Project and the assets of each of the Restricted Subsidiaries of FI
(an update of such schedule shall also be required to be delivered to
each Bank on or prior to each Borrowing Base redetermination). On or
prior to the May 1 following the receipt by each Bank of such annual
Borrowing Base Certificate, the Administrative Agent shall determine,
based upon the information (including information as to projected cash
flows) contained in such Borrowing Base Certificate and the reports
and schedules attached thereto and on the Administrative Agent's
Policies, a borrowing base calculation for FI (the "Borrowing Base")
based on the projected future cash flow associated with the assets of
FI. The recommended Borrowing Base as determined by the
Administrative Agent shall be promptly communicated to the Banks
together with the list of the Nonrestricted Subsidiaries (if any)
included in such calculation. The Banks shall promptly consider and
approve or disapprove the recommended Borrowing Base in writing, and
upon approval of such recommendations by the Required Banks by written
notice to the Administrative Agent, such approved amount shall
constitute the then effective Borrowing Base. In the event that the
Administrative Agent's recommended Borrowing Base is not approved by
the Required Banks, the Administrative Agent shall work with the Banks
to agree upon a revised Borrowing Base acceptable to Banks sufficient
to constitute the Required Banks. Such determination of the Borrowing
Base by the Administrative Agent and such approval or nonapproval by
the Required Banks of the effective Borrowing Base shall be based on
their respective Policies. Each such determination (and each
redetermination as provided for below) of the Borrowing Base shall
remain in effect until the next succeeding calculation and approval of
the Borrowing Base in the manner provided in this Article II.
SECTION 2.2. Redetermination of Borrowing Base. It is
hereby acknowledged and agreed by the Borrowers if at any time (I) FI
does not furnish a Borrowing Base Certificate on the required date and
as required by Section 2.1, (II) as provided in Section 2.3, after
giving effect to a proposed Equity Payment, the Available Borrowing
Base shall be below $125,000,000, (III) FCX, FI or any Restricted
Subsidiary shall be required to make any mandatory prepayment,
acquisition, repurchase or defeasance of the B.V. Notes or (IV) the
Required Banks provide written notice to the Administrative Agent
prior to September 1 of any year that, in their reasonable opinion,
circumstances have arisen since the most recent calculation of the
Borrowing Base that would cause a material decrease in the Borrowing
Base if it were to be recalculated on the date of such notice, then in
any such case the Required Banks shall have the right to redetermine
the Borrowing Base to be effective for the remainder of the period
originally to have been covered by the Borrowing Base then in effect,
at whatever amount they deem appropriate in their best judgment, based
on all information reasonably available to them at such time. Not
more than twice in any calendar year the Borrowers may request by
written notice to the Administrative Agent a redetermination of the
Borrowing Base in accordance with the procedures provided in
Section 2.1.
SECTION 2.3. Redetermination Based on Equity Payments. If
a Borrower shall determine to make an Equity Payment (other than
(x) FCX's purchase of FI stock and (y) scheduled mandatory redemption
payments or dividends on preferred stock either (a) taken into account
in the most recent Borrowing Base Certificate or (b) which constitute
Borrowing Base Debt), and if after giving effect to such proposed
Equity Payment the Available Borrowing Base would then be less than
$125,000,000, then (i) the applicable Borrower shall provide written
notice to the Administrative Agent 15 days (or earlier if practicable)
prior to the date of the proposed Equity Payment, together with a
calculation of the Available Borrowing Base after giving effect to
such proposed Equity Payment, and (ii) the Required Banks may
redetermine the Borrowing Base taking into account such proposed
Equity Payment; provided, however, that nothing shall preclude such
Borrower from making such Equity Payment if otherwise permitted by
Section 5.2(q).
SECTION 2.4. Grace Period for Compliance with Section 2.1
upon Borrowing Base Redeterminations. If the Borrowers are out of
compliance with Section 3.1 or 5.2(b) either (x) subsequent to an
Equity Payment as a result of a redetermination of the Borrowing Base
pursuant to clause (II) of Section 2.2 by the Required Banks (as
distinct from any other cause, including additional incurrences of
Debt by the Borrowers or otherwise) or (y) as a result of a
redetermination of the Borrowing Base pursuant to Section 2.1 or
clause (IV) of Section 2.2, then so long as no other Default or Event
of Default shall have occurred and be continuing, the Borrowers shall
have 90 days from the date of such redetermination (90 days from the
later of the date of such redetermination and the date of such Equity
Payment, in the case of a redetermination pursuant to clause (II) of
Section 2.2) in which to come into compliance with Section 3.1 and
5.2(b), and during such 90-day period may continue or convert (without
any increase in principal amount) existing Loans pursuant to
Section 3.10, but not for periods extending beyond such 90-day period
until the Borrowers are in compliance, and until the Borrowers come in
compliance with Sections 3.1 and 5.2(b), the Borrowers and the
Restricted Subsidiaries shall not incur any additional Debt. No such
90-day grace period shall be applicable to any redetermination of the
Borrowing Base pursuant to clause (I) of Section 2.2 or to any
reduction of the Borrowing Base pursuant to Section 2.5.
SECTION 2.5. Reduction of Borrowing Base from Sales of
Assets. Upon receipt by the Borrowers or a Restricted Subsidiary of
the Net Proceeds from any Net Proceeds Transaction, the Borrowing Base
shall be immediately and automatically reduced for the period
remaining until the next succeeding redetermination of the Borrowing
Base pursuant to Section 2.1 or 2.2 by the amounts indicated below on
the basis of the then cumulative Net Proceeds received from all Net
Proceeds Transactions since the last redetermination of the Borrowing
Base as follows:
(i) until such cumulative Net Proceeds exceed $175,000,000,
by 50% of such Net Proceeds;
(ii) when such cumulative Net Proceeds exceed $175,000,000
but not $350,000,000, by 75% of such Net Proceeds in excess of
$175,000,000; and
(iii) after such cumulative Net Proceeds exceed $350,000,000,
by 100% of such Net Proceeds in excess of $350,000,000.
SECTION 2.6. Nonreviewability of Borrowing Base
Redetermination. It is hereby acknowledged and agreed by the
Borrowers that each such determination and redetermination of the
Borrowing Base by the Administrative Agent and/or Required Banks shall
be made in their sole and absolute discretion and shall be final,
binding on and nonreviewable by the Borrowers and none of the
Administrative Agent or any Bank shall be required to disclose to any
Borrower its Policies.
ARTICLE III
The Loans
SECTION 3.1. Revolving Credit Facility. Upon the terms and
subject to the conditions and relying upon the representations and
warranties herein set forth, each Bank, severally and not jointly,
agrees to make Loans to FCX at any time and from time to time on or
after the FCX Funding Date, and to FI at any time and from time on or
after the FI Funding Date, in each case until the earlier of the
Maturity Date and the termination of the Commitment of such Bank in
accordance with the terms hereof, in an aggregate principal amount at
any one time outstanding not to exceed such Bank's Applicable
Percentage of the then effective unused Total Commitment on the
Borrowing Date for such Loan. Within the foregoing limits, the
Borrowers may borrow, repay and reborrow, prior to the Maturity Date,
Loans subject to the terms, provisions and limitations set forth
herein; provided, however, that no borrowing shall be made hereunder
(except for continuations or conversions of existing Loans during any
applicable 90-day period referred to in Section 2.4 without increase
in the principal amount of such Loans) if (x) the aggregate principal
amount of all the Corporate Group Loans would exceed the sum of the FI
Credit Agreement Total Commitment and the Total Commitment or (y)
Borrowing Base Debt would exceed the Borrowing Base.
SECTION 3.2. Loans. (a) The Loans made by the Banks to
any Borrower on any one date shall be in an aggregate principal
amount which is (i) an integral multiple of $1,000,000 and not less
than $5,000,000 or (ii) equal to the remaining available balance of
the applicable Commitments. The Loans by each Bank to each Borrower
shall be made against an appropriate Promissory Note, payable to the
order of such Bank in the amount of its Commitment, executed by such
Borrower and delivered to such Bank on the Closing Date, as referred
to in Section 3.4.
(b) Each Loan shall be either a Reference Rate Loan or a
LIBO Rate Loan as the relevant Borrower may request pursuant to
Section 3.3. Subject to the provisions of Sections 3.3 and 3.10,
Loans of more than one type may be outstanding at the same time.
(c) Each Bank shall make its portion, as determined under
Section 3.14, of each Loan hereunder on the proposed date thereof by
paying the amount required to the Administrative Agent in New York,
New York in immediately available funds not later than 2:00 p.m., New
York City time, and the Administrative Agent shall by 3:00 p.m.,
New York City time, credit the amounts so received to the general
deposit account of the appropriate Borrower with the Administrative
Agent or, if Loans shall not be made on such date because any
condition precedent to a borrowing herein specified is not met, return
the amounts so received to the respective Banks. Unless the
Administrative Agent shall have received notice from a Bank prior to
the date of any Loan that such Bank will not make available to the
Administrative Agent such Bank's portion of such Loan, the
Administrative Agent may assume that such Bank has made such portion
available to the Administrative Agent on the date of such Loan in
accordance with this paragraph (c) and the Administrative Agent may,
in reliance upon such assumption, make available to the applicable
Borrower on such date a corresponding amount. If the Administrative
Agent shall have so made funds available, then to the extent that such
Bank shall not have made such portion available to the Administrative
Agent, such Bank and the applicable Borrower severally agree to repay
to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such
amount is made available to the applicable Borrower until the date
such amount is repaid to the Administrative Agent at an interest rate
equal to (i) in the case of the Borrower, the interest rate applicable
at the time to the Loans comprising such borrowing and (ii) in the
case of such Bank, a rate determined by the Administrative Agent to
represent its cost of overnight or short-term funds (which
determination shall be conclusive absent manifest error). If such
Bank shall repay to the Administrative Agent such corresponding
amount, such amount shall constitute such Bank's Loan for purposes of
this Agreement.
SECTION 3.3. Notice of Loans. (a) A Borrower requesting a
Loan shall give the Administrative Agent irrevocable telephonic
(promptly confirmed in writing), written, telecopy or telex notice in
the form of Exhibit B with respect to each Loan (i) in the case of a
LIBO Rate Loan, not later than 10:30 a.m., New York City time, three
Business Days before a proposed borrowing, and (ii) in the case of a
Reference Rate Loan, not later than 10:30 a.m., New York City time, on
the date of a proposed borrowing. Such notice shall be irrevocable
(except that in the case of a LIBO Rate Loan, such Borrower may,
subject to Section 3.13, revoke such notice by giving written or telex
notice thereof to the Administrative Agent not later than 10:30 a.m.,
New York City time, two Business Days before such proposed borrowing)
and shall in each case refer to this Agreement and specify (1) the
Borrower to which the Loan then being requested is to be made,
(2) whether the Loan then being requested is to be a Reference Rate
Loan or LIBO Rate Loan, (3) the date of such Loan (which shall be a
Business Day) and amount thereof, and (4) if such Loan is to be a LIBO
Rate Loan, the Interest Period or Interest Periods (which shall not
end after the Maturity Date) with respect thereto. If no election as
to the type of Loan is specified in any such notice by such Borrower,
such Loan shall be a Reference Rate Loan. If no Interest Period with
respect to any LIBO Rate Loan is specified in any such notice by a
Borrower, then the applicable Borrower shall be deemed to have
selected an Interest Period of one month's duration. The
Administrative Agent shall promptly advise the other Banks of any
notice given by a Borrower pursuant to this Section 3.3(a) and of each
Bank's portion of the requested Loan.
(b) Each Borrower may continue or convert all or any part
of any Loan as or into a Loan of the same or a different type in
accordance with Section 3.10 and subject to the limitations set forth
herein. If a Borrower shall not have delivered a borrowing notice in
accordance with this Section 3.3 prior to the end of the Interest
Period then in effect for any Loan of such Borrower requesting that
such Loan be converted or continued as permitted hereby, then such
Borrower shall (unless the Borrower has notified the Administrative
Agent, not less than three Business Days prior to the end of such
Interest Period, that such Loan is to be repaid at the end of such
Interest Period) be deemed to have delivered a borrowing notice
pursuant to Section 3.3 requesting that such Loan be converted into or
continued as a Reference Rate Loan of equivalent amount.
(c) Notwithstanding any provision to the contrary in this
Agreement, no Borrower shall in any borrowing notice under this
Section 3.3 request any LIBO Rate Loan which, if made, would result in
more than 20 separate LIBO Rate Loans of any Bank. For purposes of
the foregoing, Loans having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate
Loans.
SECTION 3.4. Promissory Notes. (a) The Loans made by each
Bank to each Borrower shall be evidenced by a Promissory Note duly
executed on behalf of such Borrower, dated the Closing Date, in
substantially the form attached hereto as Exhibit A, payable to the
order of such Bank in a principal amount equal to its Commitment. The
outstanding principal balance of each Loan, as evidenced by such
Promissory Note, shall be payable on the Maturity Date. Each Note
shall bear interest from the date of the first borrowing hereunder on
the outstanding principal balance thereof, as provided in Section 3.5.
(b) Each Bank shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness to such
Bank resulting from each Loan made by such Bank from time to time,
including the amounts of principal and interest payable and paid such
Bank from time to time under this Agreement. Each Bank shall, and is
hereby authorized by each Borrower to, endorse on the schedule
attached to the Promissory Note delivered by such Borrower to such
Bank (or on a continuation of such schedule attached to such
Promissory Note and made a part thereof), or otherwise record in such
Bank's internal records, an appropriate notation evidencing the date
and amount of each Loan from such Bank to such Borrower, as well as
the date and amount of each payment and prepayment with respect
thereto; provided, however, that the failure of any Bank to make such
a notation or any error in such a notation shall not affect the
obligation of such Borrower to repay the Loans made by such Bank in
accordance with the terms of this Agreement and such Promissory Note.
(c) The Administrative Agent shall maintain accounts for
(i) the type of each Loan made and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the applicable Borrower to each Bank
hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from such Borrower and each Bank's
share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section 3.4 shall be prima facie
evidence of the existence and amounts of the obligations therein
recorded; provided, however, that the failure of any Bank or the
Administrative Agent to maintain such accounts or any error therein
shall not in any manner affect the obligations of the Borrowers to
repay the Loans in accordance with their terms.
SECTION 3.5. Interest on Loans. (a) Subject to the
provisions of Section 3.8, each Reference Rate Loan shall bear
interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may
be, when determined by reference to the Prime Rate, and over a year of
360 days at all other times), equal to the Applicable Reference Rate.
(b) Subject to the provisions of Section 3.8, each Loan
which is a LIBO Rate Loan shall bear interest at a rate per annum
(computed on the basis of the actual number of days elapsed over a
year of 360 days) equal to the Applicable LIBO Rate for the Interest
Period in effect for such Loan.
(c) Interest on each Loan shall be payable on each
applicable Interest Payment Date. The Applicable Reference Rate and
the Applicable LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest
error. The Administrative Agent shall promptly advise the Borrowers
and each Bank of such determination.
SECTION 3.6. Fees. (a) The Borrowers shall pay each Bank,
through the Administrative Agent, on the last Business Day of each
March, June, September and December, and on the date on which the
Commitment of such Lender shall be terminated as provided herein (the
"Commitment Termination Date"), in immediately available funds, a
commitment fee (a "Commitment Fee") from and including the earlier of
June 30, 1995, and the FCX Funding Date through and including the
Commitment Termination Date on the average daily amount of such Bank's
Applicable Percentage of the unused Total Commitment during the
quarter (or shorter period commencing with the earlier of June 30,
1995, and the FCX Funding Date or ending with the Commitment
Termination Date) ending on such date equal to the applicable
Commitment Fee Percentage set forth in Schedule I hereto for such
Borrower.
(b) All Commitment Fees under this Section 3.6 shall be
computed on the basis of the actual number of days elapsed in a year
of 365 or 366 days, as the case may be. The Commitment Fees due to
each Bank shall cease to accrue on the earlier of the Maturity Date
and the termination of the Commitment of such Bank pursuant to
Section 3.7.
(c) The Borrowers agree to pay to the Administrative Agent,
for its own account, on the Closing Date and on each anniversary
thereof, an administration fee (the "Administrative Fee") as agreed
between the Borrowers and the Administrative Agent.
(d) All such fees shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for
distribution, if and as appropriate, among the Banks. Once paid, all
such fees shall be fully earned under any and all circumstances.
SECTION 3.7. Maturity and Reduction of Commitments.
(a) Upon at least five days' prior written, telecopied or telex
notice to the Administrative Agent, the Borrowers may without penalty
at any time in whole permanently terminate, or from time to time
permanently reduce, the Total Commitment, ratably among the Banks in
accordance with the amounts of their respective Commitments; provided,
however, that each partial reduction of the Commitment Amount shall be
in a minimum principal amount of $5,000,000 and an integral multiple
of $1,000,000; provided further, that the Total Commitment may not be
reduced to an amount which is less than the aggregate principal amount
of all Loans outstanding after such reduction.
(b) On the Maturity Date the Commitments shall
automatically terminate and any outstanding Loans shall be due and
payable in full.
SECTION 3.8. Interest on Overdue Amounts; Alternative Rate
of Interest. (a) If any Borrower shall default in the payment of the
principal of or interest on any Loan or any other amount becoming due
hereunder or under any other Loan Document, by acceleration or
otherwise, such Borrower shall on demand from time to time pay
interest, to the extent permitted by law, on such defaulted amount up
to the date of actual payment (after as well as before judgment):
(i) in the case of the payment of principal of or interest
on a LIBO Rate Loan, at a rate 2% above the rate which would
otherwise be payable under Section 3.5(b) until the last date of
the Interest Period then in effect with respect to such Loan and
thereafter as provided in clause (ii) below; and
(ii) in the case of the payment of principal of or interest
on a Reference Rate Loan or any other amount payable hereunder
(other than principal of or interest on any LIBO Rate Loan to the
extent referred to in clause (i) above), at a rate 2% above the
Applicable Reference Rate.
(b) In the event, and on each occasion, that on the day two
Business Days prior to the commencement of any Interest Period for a
LIBO Rate Loan the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers
absent manifest error) that (i) Dollar deposits in the requested
principal amount of such LIBO Rate Loan are not generally available in
the London Interbank Market, (ii) the rates at which Dollar deposits
are being offered will not adequately and fairly reflect the cost to
any Bank of making or maintaining such LIBO Rate Loan during such
Interest Period or (iii) reasonable means do not exist for
ascertaining the Applicable LIBO Rate, the Administrative Agent shall
as soon as practicable thereafter give written, telecopied or telex
notice of such determination to the Borrowers and the other Banks, and
any request by a Borrower for the making of a LIBO Rate Loan pursuant
to Section 3.3 or 3.10 shall, until the Administrative Agent shall
have advised the Borrowers and the Banks that the circumstances giving
rise to such notice no longer exist, be deemed to be a request for a
Reference Rate Loan; provided, however, that if the Administrative
Agent makes the determination specified in (ii) above, at the option
of such Borrower such request shall be deemed to be a request for a
Reference Rate Loan only from such Bank referred to in (ii) above;
provided further, however, that such option shall not be available to
such Borrower if the Administrative Agent makes the determination
specified in (ii) above with respect to three or more Banks. Each
determination of the Administrative Agent hereunder shall be
conclusive absent manifest error.
SECTION 3.9. Prepayment of Loans. (a) Each Borrower shall
have the right at any time and from time to time to prepay any of its
Loans, in whole or in part, subject to the requirements of
Section 3.13 but otherwise without premium or penalty, upon prior
written or telex notice to the Administrative Agent by 10:30 a.m., New
York City time, on the date of such prepayment; provided, however,
that each such partial prepayment shall be in a minimum amount of
$5,000,000 and an integral multiple of $1,000,000.
(b) In the event of any termination of the Commitments,
each Borrower shall repay or prepay all its outstanding Loans on the
date of such termination. On the date of any partial reduction of the
Commitments pursuant to Section 3.7, the Borrowers shall pay or prepay
so much of their respective Loans as shall be necessary in order that
the aggregate principal amount of the Loans (after giving effect to
any other prepayment of Loans on such date) outstanding will not
exceed the Total Commitment immediately following such reduction.
(c) If required by Section 2.4, the Borrowers shall repay
the outstanding Loans in such amount as may be necessary so that, no
later than the relevant date required by Section 2.4 for compliance
with Sections 3.1 and 5.2(b), the aggregate Borrowing Base Debt (after
giving effect to any other prepayment of Corporate Group Loans on such
date) is less than or equal to the Borrowing Base after giving effect
to such reduction; provided, however, that if such reduction in the
Borrowing Base is a result of any sales, transfers, distributions, or
other dispositions of assets or properties (including, without
limitation, shares of any capital stock or other equity interests of
any Restricted Subsidiary) other than in the ordinary course of
business, such 90-day grace period will not apply with respect to the
required mandatory prepayment. During any such applicable 90-day
period, continuations or conversions of Loans in accordance with
Section 3.10 are permitted; provided that the Interest Periods for
such continued or converted borrowings do not extend beyond such 90-
day period unless the condition requiring prepayments pursuant to this
Section 3.9(c) shall no longer exist.
(d) All prepayments under this Section shall be subject to
Section 3.13. Each notice of prepayment delivered pursuant to
paragraph (a) above shall specify the prepayment date and the
principal amount of each Loan (or portion thereof) to be prepaid,
shall be irrevocable and shall commit the Borrower giving such notice
to prepay such Loan by the amount stated therein on the date stated
therein. All prepayments shall be applied first to Reference Rate
Loans and then to LIBO Rate Loans and shall be accompanied by accrued
interest on the principal amount being prepaid to the date of
prepayment. Any amounts prepaid may be reborrowed to the extent
permitted by the terms of this Agreement.
SECTION 3.10. Continuation and Conversion of Loans. Each
Borrower shall have the right, subject to the provisions of
Section 3.8, (i) on three Business Days' prior irrevocable notice by
such Borrower to the Administrative Agent, to continue or convert any
type of Loans as or into LIBO Rate Loans, or (ii) with irrevocable
notice by such Borrower to the Administrative Agent by 10:30 a.m. on
the date of such proposed continuation or conversion, to continue or
convert any type of Loans as or into Reference Rate Loans, in each
case subject to the following further conditions:
(a) each continuation or conversion shall be made pro rata
as to each type of Loan of a Borrower to be continued or
converted among the Banks in accordance with the respective
amounts of their commitments and the notice given to the
Administrative Agent by such Borrower shall specify the aggregate
principal amount of Loans to be continued or converted;
(b) in the case of a continuation or conversion of less than
all Loans of any Borrower, the Loans continued or converted shall
be in a minimum aggregate principal amount of $5,000,000 and an
integral multiple of $1,000,000;
(c) accrued interest on each Loan (or portion thereof) being
continued or converted shall be paid by such Borrower at the time
of continuation or conversion;
(d) the Interest Period with respect to any Loan made in
respect of a continuation or conversion thereof shall commence on
the date of the continuation or conversion;
(e) any portion of a Loan maturing or required to be prepaid
in less than one month may not be continued or converted into a
LIBO Rate Loan;
(f) a LIBO Rate Loan may be continued or converted on the
last day of the applicable Interest Period and, subject to
Section 3.13, on any other day;
(g) no Loan (or portion thereof) may be continued or
converted into a LIBO Rate Loan if, after such continuation or
conversion, an aggregate of more than 20 separate LIBO Rate Loans
of any Bank would result, determined as set forth in
Section 3.3(c);
(h) no Loan shall be continued or converted if such Loan by
any Bank would be greater than the amount by which its Commitment
exceeds the amount of its other Loans at the time outstanding or
if such Loan would not comply with the other provisions of this
Agreement; and
(i) any portion of a LIBO Rate Loan which cannot be
converted into or continued as a LIBO Rate Loan by reason of
clause (e) or (g) above shall be automatically converted at the
end of the Interest Period in effect for such Loan into a
Reference Rate Loan.
The Administrative Agent shall communicate the information contained
in each irrevocable notice delivered by the applicable Borrower
pursuant to this Section 3.10 to the other Banks promptly after its
receipt of the same.
The Interest Period applicable to any LIBO Rate Loan
resulting from a continuation or conversion shall be specified by the
applicable Borrower in the irrevocable notice of continuation or
conversion delivered pursuant to this Section 3.10; provided, however,
that if no such Interest Period for a LIBO Rate Loan shall be
specified, the applicable Borrower shall be deemed to have selected an
Interest Period of one month's duration.
For purposes of this Section 3.10, notice received by the
Administrative Agent from a Borrower after 10:30 a.m., New York time,
on a Business Day shall be deemed to be received on the immediately
succeeding Business Day.
SECTION 3.11. Reserve Requirements; Change in
Circumstances. (a) The Borrowers shall pay to each Bank on the last
day of each Interest Period for any LIBO Rate Loan so long as such
Bank may be required to maintain reserves against Eurocurrency
Liabilities as defined in Regulation D of the Board (or so long as
such Bank may be required to maintain reserves against any other
category of liabilities which includes deposits by reference to which
the interest rate on any LIBO Rate Loan is determined as provided in
this Agreement or against any category of extensions of credit or
other assets of such Bank which includes any LIBO Rate Loan) an
additional amount (determined by such Bank and notified to the
Borrowers), equal to the product of the following for each affected
LIBO Rate Loan for each day during such Interest Period:
(i) the principal amount of such affected LIBO Rate Loan
outstanding on such day; and
(ii) the remainder of (x) the product of Statutory Reserves
on such date times the Applicable LIBO Rate on such day minus
(y) the Applicable LIBO Rate on such day; and
(iii) 1/360.
Each Bank shall separately bill the Borrowers directly for all amounts
claimed pursuant to this Section 3.11(a).
(b) Notwithstanding any other provision herein, if after
the Closing Date any change in condition or applicable law or
regulation or in the interpretation or administration thereof (whether
or not having the force of law and including, without limitation,
Regulation D of the Board) by any Governmental Authority charged with
the administration or interpretation thereof shall occur which shall:
(i) subject any Bank (which shall for the purpose of this
Section include any assignee or lending office of any Bank) to
any tax of any kind whatsoever with respect to its LIBO Rate
Loans or other fees or amounts payable hereunder or change the
basis of taxation of any of the foregoing (other than taxes
(including Non-Excluded Taxes) described in Section 3.17 and
other than any franchise tax or tax or other similar governmental
charges, fees or assessments based on the overall net income of
such Bank by the U.S. Federal government or by any jurisdiction
in which such Bank maintains an office, unless the presence of
such office is solely attributable to the enforcement of any
rights hereunder or under any security document with respect to
an Event of Default);
(ii) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with
or for the account of or credit extended by any Bank;
(iii) impose on any such Bank or the London Interbank Market
any other condition affecting this Agreement or LIBO Rate Loans
made by such Bank; or
(iv) impose upon any Bank any other condition with respect to
any amount paid or to be paid by any Bank with respect to its
LIBO Rate Loans or this Agreement;
and the result of any of the foregoing shall be to increase the cost
to any Bank of making or maintaining its LIBO Rate Loans or Commitment
hereunder, or to reduce the amount of any sum (whether of principal,
interest or otherwise) received or receivable by such Bank or to
require such Bank to make any payment, in respect of any such Loan, in
each case by or in an amount which such Bank in its sole judgment
shall deem material, then the Borrower to which such Loan was made
shall pay to such Bank on demand such an amount or amounts as will
compensate the Bank for such additional cost, reduction or payment.
(c) If any Bank shall have determined that the
applicability of any law, rule, regulation, agreement or guideline
adopted after the Closing Date regarding capital adequacy, or any
change after the Closing Date in any such law, rule, regulation,
agreement or guideline (whether such law, rule, regulation, agreement
or guideline has been adopted) or in the interpretation or
administration of any of the foregoing by any Governmental Authority
charged with the interpretation or administration thereof, or
compliance by any Bank (or any lending office of such Bank) or any
Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
Governmental Authority made or issued after the Closing Date, has or
would have the effect of reducing the rate of return on such Bank's
capital or on the capital of such Bank's holding company, if any, as a
consequence of this Agreement or the Loans made pursuant hereto to a
level below that which such Bank or such Bank's holding company could
have achieved but for such applicability, adoption, change or
compliance (taking into consideration such Bank's policies and the
policies of such Bank's holding company with respect to capital
adequacy) by an amount deemed by such Bank to be material, then from
time to time the Borrowers shall pay to such Bank such additional
amount or amounts as will compensate such Bank or such Bank's holding
company for any such reduction suffered.
(d) If and on each occasion that a Bank makes a demand for
compensation pursuant to paragraph (a), (b) or (c) above, or under
Section 3.17 (it being understood that a Bank may be reimbursed for
any specific amount under only one such paragraph or Section) the
Borrowers may, upon at least three Business Days' prior irrevocable
written or telex notice to each of such Bank and the Administrative
Agent, in whole permanently replace the Commitment of such Bank;
provided that such notice must be given not later than the 90th day
following the date of a demand for compensation made by such Bank; and
provided that the Borrowers shall replace such Commitment with the
Commitment of a commercial bank satisfactory to the Administrative
Agent. Such notice from the Borrowers shall specify an effective date
for the termination of such Bank's Commitment which date shall not be
later than the 180th day after the date such notice is given. On the
effective date of any termination of such Bank's Commitment pursuant
to this clause (d), the Borrowers shall pay to the Administrative
Agent for the account of such Bank (A) any Commitment Fees on the
amount of such Bank's Commitment so terminated accrued to the date of
such termination, (B) the principal amount of any outstanding Loans
held by such Bank plus accrued interest on such principal amount to
the date of such termination and (C) the amount or amounts requested
by such Bank pursuant to clause (a), (b) or (c) above or Section 3.17,
as applicable. The Borrowers will remain liable to such terminated
Bank for any loss or expense that such Bank may sustain or incur as a
consequence of such Bank's making any LIBO Rate Loan or any part
thereof or the accrual of any interest on any such Loan in accordance
with the provisions of this Section 3.11(d) as set forth in
Section 3.13. Upon the effective date of termination of any Bank's
Commitment pursuant to this Section 3.11(d) such Bank shall cease to
be a "Bank" hereunder; provided that no such termination of any such
Bank's Commitment shall affect (i) any liability or obligation of the
Borrowers or any other Bank to such terminated Bank which accrued on
or prior to the date of such termination or (ii) such terminated
Bank's rights hereunder in respect of any such liability or
obligation.
(e) A certificate of a Bank (or Transferee) setting forth
such amount or amounts as shall be necessary to compensate such Bank
(or Transferee) as specified in paragraph (a), (b) or (c) (and, in the
case of (c), such Bank's holding company)above or Section 3.17, as the
case may be, shall be delivered as soon as practicable to the
Borrowers, and in any event within 90 days of the change giving rise
to such amount or amounts, and shall be conclusive absent manifest
error. The appropriate Borrower shall pay each Bank the amount shown
as due on any such certificate within 15 days after its receipt of the
same. In preparing such a certificate, each Bank may employ such
assumptions and allocations of costs and expenses as it shall in good
faith deem reasonable. The failure of any Bank (or Transferee) to
give the required 90-day notice shall excuse the Borrowers from their
obligations to pay additional amounts pursuant to such Sections
incurred for the period that is 90 days or more prior to the date such
notice was required to be given.
(f) Failure on the part of any Bank to demand compensation
for any increased costs or reduction in amounts received or receivable
or reduction in return on capital within the 90 days required pursuant
to Section 3.11(e) shall not constitute a waiver of such Bank's rights
to demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital for any
period after the date that is 90 days prior to the date of the
delivery of demand for compensation. The protection of this
Section 3.11 shall be available to each Bank regardless of any
possible contention of invalidity or inapplicability of the law,
regulation or condition which shall have occurred or been imposed. No
Borrower shall be required to make any additional payment to any Bank
pursuant to Section 3.11(a) or (b) in respect of any such cost,
reduction or payment that could be avoided by such Bank in the
exercise of reasonable diligence, including a change in the lending
office of such Bank if possible without material cost to such Bank.
Each Bank agrees that it will promptly notify the Borrowers and the
Administrative Agent of any event of which the responsible account
officer shall have knowledge which would entitle such Bank to any
additional payment pursuant to this Section 3.11. The Borrowers agree
to furnish promptly to the Administrative Agent official receipts
evidencing any payment of any tax.
SECTION 3.12. Change in Legality. (a) Notwithstanding
anything to the contrary herein contained, if after the Closing Date
any change in any law or regulation or in the interpretation thereof
by any Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any Bank to make or
maintain any LIBO Rate Loan or to give effect to its obligations as
contemplated hereby with respect to any LIBO Rate Loan, then, by
written notice to the Borrowers and to the Administrative Agent, such
Bank may:
(i) declare that LIBO Rate Loans will not thereafter (for
the duration of such unlawfulness or impracticality) be made by
such Bank hereunder, whereupon the Borrowers shall be prohibited
from requesting LIBO Rate Loans from such Bank hereunder unless
such declaration is subsequently withdrawn; and
(ii) require that all outstanding LIBO Rate Loans made by it
be converted to Reference Rate Loans, in which event (A) all such
LIBO Rate Loans shall be automatically converted to Reference
Rate Loans as of the end of the applicable Interest Period,
unless an earlier conversion date is legally required, (B) all
payments and prepayments of principal which would otherwise have
been applied to repay the converted LIBO Rate Loans shall instead
be applied to repay the Reference Rate Loans resulting from the
conversion of such LIBO Rate Loans and (C) the Reference Rate
Loans resulting from the conversion of such LIBO Rate Loans shall
be prepayable only at the times the converted LIBO Rate Loans
would have been prepayable, notwithstanding the provisions of
Section 3.9.
(b) Before giving any notice to the Borrowers and the
Administrative Agent pursuant to this Section 3.12, such Bank shall
designate a different LIBOR Office if such designation will avoid the
need for giving such notice and will not in the judgment of such Bank,
be otherwise disadvantageous to such Bank. For purposes of
Section 3.12(a), a notice to the Borrowers by any Bank shall be
effective on the date of receipt by the Borrowers.
SECTION 3.13. Indemnity. Each Borrower shall indemnify
each Bank against any funding, redeployment or similar loss or expense
which such Bank may sustain or incur as a consequence of (a) any
event, other than a default by such Bank in the performance of its
obligations hereunder, which results in (i) such Bank receiving or
being deemed to receive any amount on account of the principal of any
LIBO Rate Loan prior to the end of the Interest Period in effect
therefor (any of the events referred to in this clause (i) being
called a "Breakage Event") or (ii) any Loan to be made by such Bank
not being made after notice of such Loan shall have been given by such
Borrower hereunder or (b) any default in the making of any payment or
prepayment of any amount required to be made hereunder. In the case
of any Breakage Event, such loss shall include an amount equal to the
excess, as reasonably determined by such Bank, of (i) its cost of
obtaining funds for the Loan which is the subject of such Breakage
Event for the period from the date of such Breakage Event to the last
day of the Interest Period in effect (or which would have been in
effect) for such Loan over (ii) the amount of interest (as reasonably
determined by such Bank) that would be realized by such Bank in
reemploying the funds so paid, prepaid or converted or not borrowed,
continued or converted by making a LIBO Rate Loan in such principal
amount and with a maturity comparable to such period. A certificate
of any Bank setting forth any amount or amounts which such Bank is
entitled to receive pursuant to this Section shall be delivered to the
Borrowers and shall be conclusive absent manifest error.
SECTION 3.14. Pro Rata Treatment. Except as permitted
under any of Sections 3.8(b), 3.11, 3.12, 3.13, 3.17 or 3.18, each
borrowing under each type of Loan, each payment or prepayment of
principal of the Loans, each payment of interest on the Loans, each
other reduction of the principal or interest outstanding under the
Loans, however achieved, including by setoff by any Person, each
payment of the Commitment Fees, each reduction of the Commitments and
each conversion or continuation of Loans shall be allocated pro rata
among the Banks in the proportions that their respective Commitments
bear to the Total Commitment (or, if such Commitments shall have
expired or been terminated, in accordance with the respective
principal amounts of their outstanding Loans). Each Bank agrees that
in computing such Bank's portion of any borrowing to be made
hereunder, the Administrative Agent may, in its discretion, round each
Bank's percentage of such borrowing to the next higher or lower whole
Dollar amount.
SECTION 3.15. Sharing of Setoffs. Each Bank agrees that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim against any Borrower or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by
such Bank under any applicable bankruptcy, insolvency or other similar
law or otherwise, or by any other means obtain payment (voluntary or
involuntary) in respect of any Loan of any Borrower held by it as a
result of which the unpaid principal portion of the Loans of such
Borrower held by it shall be proportionately less than the unpaid
principal portion of the Loans of such Borrower held by any other Bank
(other than as permitted under any of Section 3.8(b), 3.11, 3.12,
3.13, 3.17 or 3.18), it shall be deemed to have simultaneously
purchased from such other Bank at face value, and shall promptly pay
to such other Bank the purchase price for, a participation in the
Loans of such Borrower held by such other Bank, so that the aggregate
unpaid principal amount of the Loans of such Borrower and
participation in Loans of such Borrower held by each Bank shall be in
the same proportion to the aggregate unpaid principal amount of all
Loans of such Borrower then outstanding as the principal amount of the
Loans of such Borrower held by it prior to such exercise of banker's
lien, setoff or counterclaim was to the principal amount of all Loans
of such Borrower outstanding prior to such exercise of banker's lien,
setoff or counterclaim or other event; provided, however, that if any
such purchase or purchases or adjustments shall be made pursuant to
this Section 3.15 and the payment giving rise thereto shall thereafter
be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or
prices or adjustment restored without interest. To the fullest extent
permitted by applicable law, each Borrower expressly consents to the
foregoing arrangements and agrees that any Bank holding a
participation in a Loan of either Borrower deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by such Borrower
hereunder to such Bank as fully as if such Bank had made a Loan
directly to such Borrower in the amount of such participation.
SECTION 3.16. Payments. (a) Except as otherwise provided
in this Agreement, all payments and prepayments to be made by either
Borrower to the Banks hereunder, whether on account of Commitment
Fees, payment of principal or interest on the Promissory Notes or
other amounts at any time owing hereunder or under any other Loan
Document, shall be made to the Administrative Agent at its office at
270 Park Avenue, New York, New York, for the account of the several
Banks in immediately available funds. All such payments shall be made
to the Administrative Agent as aforesaid not later than 10:30 a.m.,
New York City time, on the date due; and funds received after that
hour shall be deemed to have been received by the Administrative Agent
on the following Business Day.
(b) As promptly as possible, but no later than 2:00 p.m.,
New York City time, on the date of each borrowing, each Bank
participating in the Loans made on such date shall pay to the
Administrative Agent such Bank's Applicable Percentage of such Loan
plus, if such payment is received by the Administrative Agent after
2:00 p.m., New York City time, on the date of such borrowing, interest
at a rate per annum equal to the rate in effect on such day, quoted by
the Administrative Agent at its office at 270 Park Avenue, New York,
New York, for the overnight "sale" to such Bank of Federal funds. At
the time of, and by virtue of, such payment, such Bank shall be deemed
to have made its Loan in the amount of such payment. The
Administrative Agent agrees to pay any moneys, including such
interest, so paid to it by the lending Banks promptly, but no later
than 3:00 p.m., New York City time, on the date of such borrowing, to
the appropriate Borrower in immediately available funds.
(c) If any payment of principal, interest, Commitment Fee
or any other amount payable to the Banks hereunder or under any
Promissory Note shall fall due on a day that is not a Business Day,
then such due date shall be extended to the next succeeding Business
Day (except in the case of payments of principal of or interest on
LIBO Rate Loans, in which case such payment shall be made on the next
preceding Business Day if the next succeeding Business Day would fall
in the next calendar month), and interest shall be payable on
principal in respect of such extension.
(d) Unless the Administrative Agent shall have been
notified by the Borrowers prior to the date on which any payment or
prepayment is due hereunder (which notice shall be effective upon
receipt) that the Borrowers do not intend to make such payment or
prepayment, the Administrative Agent may assume that the Borrowers
have made such payment or prepayment when due and the Administrative
Agent may in reliance upon such assumption (but shall not be required
to) make available to each Bank on such date an amount equal to the
portion of such assumed payment or prepayment such Bank is entitled to
hereunder, and, if the Borrowers have not in fact made such payment or
prepayment to the Administrative Agent, such Bank shall, on demand,
repay to the Administrative Agent the amount made available to such
Bank, together with interest thereon in respect of each day during the
period commencing on the date such amount was made available to such
Bank and ending on (but excluding) the date such Bank repays such
amount to the Administrative Agent, at a rate per annum equal to the
rate, determined by the Administrative Agent to represent its cost of
overnight or short-term funds (which determination shall be conclusive
absent manifest error).
(e) All payments of the principal of or interest on the
Loans or any other amounts to be paid to any Bank or the
Administrative Agent under this Agreement or any of the other Loan
Documents shall be made in Dollars, without reduction by reason of any
currency exchange expense.
SECTION 3.17. U.S. Taxes. (a) Any and all payments by any
Borrower hereunder shall be made, in accordance with Section 3.16,
free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto imposed by the United States
or any political subdivision thereof, excluding taxes imposed on the
net income of an Agent or any Bank (or Transferee) and franchise taxes
of an Agent or any Bank (or Transferee), as applicable, as a result of
a connection between the jurisdiction imposing such taxes and such
Agent or such Bank (or Transferee), as applicable, other than a
connection arising solely from such Agent or such Bank (or
Transferee), as applicable, having executed, delivered, performed its
obligations or received a payment under, or enforced, this Agreement
(all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Non-
Excluded Taxes"). If any Borrower shall be required by law to deduct
any Non-Excluded Taxes from or in respect of any sum payable hereunder
to the Banks (or any Transferee) or an Agent, (i) the sum payable
shall be increased by the amount necessary so that after making all
required deductions (including deductions applicable to additional
sums payable under this Section 3.17) such Bank (or Transferee) or
such Agent (as the case may be) shall receive an amount equal to the
sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay
the full amount deducted to the relevant taxing authority or other
Governmental Authority in accordance with applicable law; provided,
however, that no Transferee of any Bank shall be entitled to receive
any greater payment under this Section 3.17 than such Bank would have
been entitled to receive with respect to the rights assigned,
participated or otherwise transferred unless such assignment,
participation or transfer shall have been made at a time when the
circumstances giving rise to such greater payment did not exist.
(b) In addition, the Borrowers agree to bear and to pay to
the relevant Governmental Authority in accordance with applicable law
any current or future stamp or documentary taxes or any other similar
excise taxes, charges or similar levies that arise from any payment
made hereunder or from the execution, delivery, registration or
enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document and any property taxes that arise from the
enforcement of this Agreement or any other Loan Document ("Other
Taxes").
(c) The Borrowers will indemnify each Bank (or Transferee)
and each Agent for the full amount of Non-Excluded Taxes and Other
Taxes (including Non-Excluded Taxes or Other Taxes imposed on amounts
payable under this Section 3.17) paid by such Bank (or Transferee) or
such Agent, as the case may be, and any liability (including
penalties, interest and expenses (including reasonable attorney's fees
and expenses)) arising therefrom or with respect thereto. A
certificate as to the amount of such payment or liability prepared by
a Bank or Agent, or the Administrative Agent on behalf of such Bank or
Agent, absent manifest error, shall be final, conclusive and binding
for all purposes. Such indemnification shall be made within 30 days
after the date the Bank (or Transferee) or the Agent, as the case may
be, makes written demand therefor.
(d) Within 30 days after the date of any payment of Non-
Excluded Taxes or Other Taxes by any Borrower to the relevant
Governmental Authority, such Borrower will furnish to the
Administrative Agent, at its address referred to on the signature
page, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing payment thereof.
(e) At the time it becomes a party to this Agreement or a
Transferee, each Bank (or Transferee) that is organized under the laws
of a jurisdiction outside the United States shall (in the case of a
Transferee, subject to the immediately succeeding sentence) deliver to
the Borrowers either a valid and currently effective Internal Revenue
Service Form 1001 or Form 4224 or, in the case of a Bank (or
Transferee) claiming exemption from U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a Form W-8, or any subsequent version thereof or
successors thereto, (and if such Bank (or Transferee) delivers a
Form W-8, a certificate representing that such Bank (or Transferee) is
not a bank for purposes of Section 881(c) of the Code, is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Code) of the Borrowers and is not a controlled foreign corporation
related to the Borrowers (within the meaning of Section 864(d)(4) of
the Code)), properly completed and duly executed by such Bank (or
Transferee) establishing that such payment is (i) not subject to
United States Federal withholding tax under the Code because such
payment is effectively connected with the conduct by such Bank (or
Transferee) of a trade or business in the United States or
(ii) totally exempt from (or in case of a Transferee, entitled to a
reduced rate of) United States Federal withholding tax.
Notwithstanding any other provision of this Section 3.17(e), no
Transferee shall be required to deliver any form pursuant to this
Section 3.17(e) that such Transferee is not legally able to deliver.
In addition, each Bank (or Transferee) shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously
delivered, but only, in such case, to the extent such Bank (or
Transferee) is legally able to do so.
(f) Notwithstanding anything to the contrary contained in
this Section 3.17, no Borrower shall be required to pay any additional
amounts to any Bank (or Transferee) in respect of United States
Federal withholding tax pursuant to paragraph (a) above if the
obligation to pay such additional amounts would not have arisen but
for a failure by such Bank (or Transferee) to comply with the
provisions of paragraph (e) above.
(g) Any Bank (or Transferee) claiming any additional
amounts payable pursuant to this Section 3.17 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file
any certificate or document requested by the Borrowers or to change
the jurisdiction of its applicable lending office if the making of
such a filing or change would avoid the need for or reduce the amount
of any such additional amounts which may thereafter accrue and would
not, in the sole determination of such Bank, be otherwise
disadvantageous to such Bank (or Transferee).
(h) Without prejudice to the survival of any other
agreement contained herein, the agreements and obligations contained
in this Section 3.17 shall survive the payment in full of the
principal of and interest on all Loans made hereunder.
(i) Nothing contained in this Section 3.17 shall require
any Bank (or Transferee) or the Administrative Agent to make available
any of its income tax returns (or any other information that it deems
to be confidential or proprietary).
SECTION 3.18. Indonesian Taxes. (a) FI shall pay when due
all Indonesian Taxes.
(b) FI shall indemnify the Administrative Agent, the FI
Trustee and each Bank (or Transferee) against, and shall reimburse the
Administrative Agent, the FI Trustee and each Bank (or Transferee)
upon demand for, any Indonesian Taxes paid by the Administrative
Agent, the FI Trustee or such Bank (or Transferee), and any loss,
liability, claim or expense (including interest, penalties, fines,
surcharges and legal fees) which the Administrative Agent, the FI
Trustee or such Bank (or Transferee) may incur at any time arising out
of or in connection with any failure of FI to make any payments of
Indonesian Taxes; provided, however, that no Transferee of any Bank
shall be entitled to receive any greater payment under this
Section 3.18 than such Bank would have been entitled to receive with
respect to the rights assigned, participated or otherwise transferred
unless such assignment, participation or transfer shall have been made
at a time when the circumstances giving rise to such greater payment
did not exist. A certificate as to the amount of such payment or
liability prepared by a Bank (or Transferee), or the Administrative
Agent on its behalf, absent manifest error, shall be final, conclusive
and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Bank (or Transferee) or the
Administrative Agent, as the case may be, makes written demand
therefor.
(c) Except as otherwise expressly provided in paragraph (f)
below, all payments on account of the principal of or interest on the
Loans made to FI, the Promissory Notes of FI and all other amounts
payable by FI to or for the account of any Bank (or Transferee) or
the Administrative Agent hereunder (including amounts payable under
Section 3.18(a) or 3.18(b)) or to or for the FI Trustee under the FI
Security Documents and to any of them under any other Loan Document
shall be made in Dollars free and clear of and without reduction by
reason of any Indonesian Taxes all of which shall be for the account
of and paid in full when due by FI. In the event that FI is required
by any applicable law, decree or regulation to deduct or withhold
Indonesian Taxes from any amounts payable on, under or in respect of
this Agreement or any other Loan Document, FI shall make the required
deduction or withholding, promptly pay the amount of such Indonesian
Taxes to the appropriate taxing authorities and pay to the
Administrative Agent such additional amounts as may be required, after
the deduction or withholding of Indonesian Taxes (including deductions
applicable to additional sums payable under this Section 3.18), to
enable each Bank (or Transferee), the FI Trustee or the Administrative
Agent to receive from FI on the due date thereof, an amount equal to
the full amount stated to be payable to such Bank (or Transferee), the
FI Trustee or the Administrative Agent under this Agreement or any
other applicable Loan Document.
(d) Without in any way affecting FI's obligations under the
other provisions of this Section 3.18, FI shall furnish to the
Administrative Agent the originals or certified copies of all tax
receipts issued by the relevant taxing authority in respect of each
payment, deduction or withholding of Indonesian Taxes required to be
made by applicable laws or regulations, within 45 days after the date
on which such payment is made, and FI shall, at the request of any
Bank (or Transferee), the FI Trustee or the Administrative Agent,
promptly furnish to such Bank (or Transferee), the FI Trustee or the
Administrative Agent any other information, documents and receipts
that such Bank (or Transferee), the FI Trustee or the Administrative
Agent may require to establish to its satisfaction that full and
timely payment has been made of all Indonesian Taxes required to be
paid hereunder.
(e) FI will notify the Banks (through the Administrative
Agent) promptly upon becoming aware of the application or imposition,
or scheduled future application or imposition, of Indonesian Taxes;
and each Bank (if not theretofore notified by FI) will notify FI of
any such application or imposition which becomes known to its officers
then supervising the Loans of such Bank hereunder as part of their
normal duties, and of any change of its lending office or
establishment or closing of a branch in Indonesia by such Bank which
would give rise to the application or imposition of Indonesian Taxes.
(f) Each Bank (or Transferee) having its principal office
and applicable lending office outside of Indonesia (a "Non-Indonesian
Lender") shall use reasonably diligent efforts to deliver to FI
appropriate forms, duly completed, evidencing such Non-Indonesian
Lender's entitlement under the applicable treaty to a reduced rate of
withholding (which, in the case of any Non-Indonesian Lender that is
organized under the laws of the United States or any State thereof
including the District of Columbia, shall be Internal Revenue Service
Form 6166 (or any successor form thereto)) on or prior to the 90th day
following the (A) the date hereof or (B) in the case of any such Non-
Indonesian Lender that is a Transferee, the date such Non-Indonesian
Lender becomes a Transferee. Following delivery by a Non-Indonesian
Lender to FI of the appropriate form referenced in the preceding
sentence of this Section 3.18(f), duly completed, FI is authorized to
file such form with the appropriate Indonesian taxing authorities in
order to obtain a reduced rate of withholding with respect to payments
of interest to such Non-Indonesian Lender.
Each Non-Indonesian Lender shall use reasonably diligent
efforts to deliver to FI such certificates, forms or other documents
as may be necessary under any other provision of applicable law
(including any amendment, modification or supplement to Form 6166 or
such analogous form referred to in the second preceding sentence) to
reduce the withholding rate with respect to payments of interest on
Loans of such Non-Indonesian Lender on or by the 90th day following
the date on which FI shall have delivered to such Non-Indonesian
Lender written notice of the existence of such provision of applicable
law together with a copy thereof (accompanied by a verified English
translation if such provision of applicable law is not in English);
provided, however, that such Non-Indonesian Lender shall not be
required to deliver any such certificate, form or other document that
would, in the reasonable judgment of such Non-Indonesian Lender, be
otherwise disadvantageous to such Non-Indonesian Lender; and provided
further that such Non-Indonesian Lender shall have no obligation to
deliver any such certificates, forms or other documents that it is not
legally able to deliver or with respect to information deemed by such
Non-Indonesian Lender to be confidential or proprietary.
If any Non-Indonesian Lender shall have failed to comply
with requirements of this Section 3.18(f) and the effect of such
failure is to cause the rate of withholding with respect to payments
of interest on such Non-Indonesian Lender's Loans to be higher than
that which would have been applicable had such certificates, forms or
other documents been delivered to the applicable Indonesian taxing
authority, then any withholding tax indemnity payment to any such Non-
Indonesian Lender by FI pursuant to this Section 3.18 shall be
computed as if such certificates, forms or other documents had been so
delivered.
ARTICLE IV
Representations and Warranties
SECTION 4.1. Representations and Warranties. As of the FCX
Funding Date and each other date upon which such representations and
warranties are required to be made or deemed made pursuant to Section
6.2(i), (i) FCX represents and warrants with respect to itself and
(ii) FCX and FI jointly and severally represent and warrant with
respect to FI, in each case to each of the Banks, as follows:
(a) Organization, Powers. FI is duly organized and validly
existing under the laws of the Republic of Indonesia and is duly
domesticated under the laws of the State of Delaware. FCX is
duly organized, validly existing and in good standing under the
laws of the State of Delaware. Each Borrower (i) has the
requisite power and authority to own its property and assets and
to carry on its business as now conducted and as proposed to be
conducted, and (ii) is qualified to do business in every
jurisdiction where such qualification is required, except where
the failure so to qualify would not have a material adverse
effect on its condition, financial or otherwise. Each Borrower
has the power to execute, deliver and perform its obligations
under this Agreement and the other Loan Documents to which it is
or is to be a party, to borrow hereunder and to execute and
deliver any Promissory Notes to be delivered by it. Each
Borrower has all requisite corporate power, and has all material
governmental licenses, authorizations, consents and approvals
necessary to own its own assets and carry on its business as now
being or as proposed to be conducted.
(b) Authorization. The execution, delivery and performance
of this Agreement (including, without limitation, performance of
the obligations set forth in Sections 5.1(k) and 5.1(n)) and the
other Loan Documents to which each Borrower is or is to be, a
party and the borrowings hereunder (i) have been duly authorized
by all requisite corporate and, if required, stockholder, action
on the part of each Borrower, as the case may be, and (ii) will
not (A) violate (x) any Governmental Rule or the certificate or
articles of incorporation or other constitutive documents or the
By-laws or regulations of such Person or (y) any provisions of
any indenture, agreement or other instrument to which such Person
is a party, or by which such Person or any of their respective
properties or assets are or may be bound, (B) be in conflict
with, result in a breach of or constitute (alone or with notice
or lapse of time or both) a default under any indenture,
agreement or other instrument referred to in (ii)(A)(y) above or
(C) result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any property or assets
of such Person, except as contemplated by the FCX Pledge
Agreements and the FI Security Documents.
(c) Governmental Approvals. Except for those consents,
approvals and registrations listed on Schedule IV hereto, each of
which has been obtained and is in full force and effect, or will
be obtained and be in full force and on the FI Funding Date or
the RTZ Funding Date (as indicated in Part II or Part III,
respectively, of Schedule IV hereto), no registration with or
consent or approval of, or other action by, any Governmental
Authority is or will be required in connection with the
execution, delivery and performance by either Borrower of this
Agreement or any other Loan Document to which it is, or is to be,
a party or the borrowings hereunder by either Borrower. Other
than routine authorizations, permissions or consents which are of
a minor nature and which are customarily granted in due course
after application or the denial of which would not materially
adversely affect the business, financial condition or operations
of either Borrower, such Person has all franchises, licenses,
certificates, authorizations, approvals or consents from all
national, state and local governmental and regulatory authorities
required to carry on its business as now conducted and as
proposed to be conducted.
(d) Enforceability. This Agreement and each of the other
Loan Documents to which it is a party constitutes a legal, valid
and binding obligation of each Borrower, in each case enforceable
in accordance with its respective terms (subject, as to the
enforcement of remedies against such Person, to applicable
bankruptcy, reorganization, insolvency, moratorium and similar
laws affecting creditors' rights against such Person generally in
connection with the bankruptcy, reorganization or insolvency of
such Person or a moratorium or similar event relating to such
Person).
(e) Financial Statements. The Borrowers have heretofore
furnished to each of the Banks their consolidated balance sheets
and statements of operations and changes in retained earnings and
cash flow as of and for the fiscal years ended December 31, 1993
and 1994, all audited and certified by Arthur Andersen LLP,
independent public accountants, included in FCX's Annual Report
on Form 10-K for the year ended December 31, 1994 (the "1994
Form 10-K"), and unaudited consolidated balance sheets and
statements of operations and cash flow as of and for the fiscal
quarter ended March 31, 1995 included in FCX's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1995. In addition,
FI has heretofore furnished to each of the Banks consolidated
balance sheets and statements of operations and cash flow for FI
as of and for the fiscal years ended December 31, 1993 and 1994,
all audited and certified by Arthur Andersen LLP and unaudited
consolidated balance sheets and statements of operations and cash
flow for FI as of and for the fiscal quarter ended March 31,
1995. All such balance sheets and statements of operations and
cash flow present fairly the financial condition and results of
operations of FCX and its Subsidiaries or of FI and its
Subsidiaries, as applicable, as of the dates and for the periods
indicated. Such financial statements and the notes thereto
disclose all material liabilities, direct or contingent, of FCX
and its Subsidiaries or of FI and its Subsidiaries, as
applicable, as of the dates thereof which are required to be
disclosed in the footnotes to financial statements prepared in
accordance with GAAP. The financial statements referred to in
this Section 4.1(e) have been prepared in accordance with GAAP.
There has been no material adverse change since December 31,
1994, in the businesses, assets, operations, prospects or
condition, financial or otherwise, of (i) FCX, (ii) FI, (iii) FCX
and its Subsidiaries taken as a whole or (iv) FI and its
Subsidiaries taken as a whole.
(f) Litigation; Compliance with Laws; etc. (i) Except as
disclosed in the 1994 Form 10-K and any subsequent reports filed
as of 20 days prior to the Closing Date with the SEC on Form 10-Q
or Form 8-K which have been delivered to the Banks, there are no
actions, suits or proceedings at law or in equity or by or before
any governmental instrumentality or other agency or regulatory
authority now pending or, to the knowledge of the Borrowers,
threatened against or affecting the Borrowers or any Subsidiary
or the businesses, assets or rights of the Borrowers or any
Subsidiary (i) which involve this Agreement or any of the other
Loan Documents or any of the transactions contemplated hereby or
thereby or the collateral for the Loans or (ii) as to which there
is a reasonable possibility of an adverse determination and
which, if adversely determined, could, individually or in the
aggregate, materially impair the ability of FCX or FI to conduct
its business substantially as now conducted, or materially and
adversely affect the businesses, assets, operations, prospects or
condition, financial or otherwise, of FCX or FI, or impair the
validity or enforceability of, or the ability of FCX or FI to
perform its obligations under, this Agreement or any of the other
Loan Documents to which it is a party.
(ii) Neither the Borrowers nor any Subsidiary is in
violation of any law, or in default with respect to any judgment,
writ, injunction, decree, rule or regulation of any court or
governmental agency or instrumentality, where such violation or
default could result in a Material Adverse Effect.
(g) Title, etc. The Borrowers and the Subsidiaries have
good and valid title to their respective material properties,
assets and revenues (exclusive of oil, gas and other mineral
properties on which no development or production activities are
being conducted following discovery of commercially exploitable
reserves), free and clear of all Liens except such Liens as are
permitted by Section 5.2(d) and except for covenants,
restrictions, rights, easements and minor irregularities in title
which do not individually or in the aggregate interfere with the
occupation, use and enjoyment by the respective Borrower or the
respective Subsidiary of such properties and assets in the normal
course of business as presently conducted or materially impair
the value thereof for use in such business. FI has the requisite
licenses under the Governmental Rules of Indonesia to use the
real property on which it conducts its business.
(h) Federal Reserve Regulations; Use of Proceeds.
(i) Neither of the Borrowers nor any Subsidiary is engaged
principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(ii) No part of the proceeds of the Loans will be used,
whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose which entails a
violation of, or which is inconsistent with, the provisions of
the Regulations of the Board, including, without limitation,
Regulations G, U or X thereof.
(iii) Each Borrower will use the proceeds of all Loans made
to it for its ongoing general corporate purposes and for
acquisition transactions (subject to Section 4.1(h)(ii)).
(iv) As of each date when this representation is made or
deemed made, as to the Borrower making the related borrowing, not
more than 25% of the value of the assets directly or indirectly
securing the Loans and Permitted Secured Hedges of such Borrower
(and of FI, in the case of FCX) constitutes Margin Stock.
(i) Taxes. The Borrowers and the Subsidiaries have filed
or caused to be filed all material Federal, state, local and
foreign tax (including Indonesian) returns which are required to
be filed by them, and have paid or caused to be paid all taxes
shown to be due and payable on such returns or on any assessments
received by any of them, other than any taxes or assessments the
validity of which the relevant Borrower or Subsidiary is
contesting in good faith by appropriate proceedings, and with
respect to which the relevant Borrower or Subsidiary shall, to
the extent required by GAAP, have set aside on its books adequate
reserves.
(j) Employee Benefit Plans. Each of the Borrowers and its
ERISA Affiliates is in compliance in all material respects with
the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder. No ERISA
Event has occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events, could materially
and adversely affect the financial condition and operations of
the Borrowers and the ERISA Affiliates, taken as a whole. The
present value of all benefit liabilities under each Plan,
determined on a plan termination basis (based on those
assumptions used for financial disclosure purposes in accordance
with Statement of Financial Accounting Standards No. 87 of the
Financial Accounting Standards Board ("SFAS 87") did not, as of
the last annual valuation date applicable thereto, exceed by more
than $5,000,000 the value of the assets of such Plan, and the
present value of all benefit liabilities of all underfunded
Plans, determined on a plan termination basis (based on those
assumptions used for financial disclosure purposes in accordance
with SFAS 87) did not, as of the last annual valuation dates
applicable thereto, exceed by more than $5,000,000 the value of
the assets of all such underfunded Plans.
(k) Investment Company Act. Neither Borrower nor any
Subsidiary is an "investment company" as defined in, or subject
to regulation under, the Investment Company Act of 1940, as
amended from time to time.
(l) Public Utility Holding Company Act. Neither Borrower
nor any Subsidiary is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of
1935, as amended from time to time.
(m) Subsidiaries. Schedule III constitutes a complete and
correct list, as of the Closing Date or the date of any update
thereof required by Section 5.1(a)(5), of all Restricted
Subsidiaries with at least $1,000,000 in total assets, indicating
the jurisdiction of incorporation or organization of each
corporation or partnership and the percentage of shares or units
owned on such date directly or indirectly by FCX in each. Each
entity shown as a parent company owns on such date, free and
clear of all Liens (other than the Liens required or permitted by
Section 4.1(o)), the percentage of voting shares or partnership
interests outstanding of its Subsidiaries shown on Schedule III,
and all such shares or partnership interests are validly issued
and fully paid.
(n) Environmental Matters. (1) The properties owned or
operated by the Borrowers and their Subsidiaries (the
"Properties") and all operations of the Borrowers and their
Subsidiaries are in compliance, and in the last three years have
been in compliance, with all Environmental Laws and all necessary
Environmental Permits have been obtained and are in effect,
except to the extent that such non-compliance or failure to
obtain any necessary permits, in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect;
(2) there have been no Releases or threatened Releases at,
from, under or proximate to the Properties or otherwise in
connection with the operations of the Borrowers or their
Subsidiaries, which Releases or threatened Releases, in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect;
(3) neither the Borrowers nor any of their Subsidiaries has
received any notice of an Environmental Claim in connection with
the Properties or the operations of the Borrowers or their
Subsidiaries or with regard to any Person whose liabilities for
environmental matters the Borrowers or their Subsidiaries has
retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in the aggregate, could
reasonably be expected to result in a Material Adverse Effect,
nor do the Borrowers or their Subsidiaries have reason to believe
that any such notice will be received or is being threatened; and
(4) Hazardous Materials have not been transported from the
Properties, nor have Hazardous Materials been generated, treated,
stored or disposed of at, on or under any of the Properties in a
manner that could give rise to liability under any Environmental
Law, nor have the Borrowers or their Subsidiaries retained or
assumed any liability, contractually, by operation of law or
otherwise, with respect to the generation, treatment, storage or
disposal of Hazardous Materials, which transportation,
generation, treatment, storage or disposal, or retained or
assumed liabilities, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
(o) Security Documents. The Liens created by the FI
Security Documents are in full force and effect and constitute
first priority (except for Liens expressly permitted by Section
5.2(d)), perfected security interests in favor of the FI Trustee
for the ratable benefit of the Banks and the FI Lenders in the
property and assets stated to be subject to each such FI Security
Document and for the RTZ Lender in the RTZ Collateral. The FCX
Pledge Agreements are effective to create in favor of the FCX
Collateral Agent, for the ratable benefit of the Lenders (as such
term is defined in the FCX Intercreditor Agreement) and the
holders of the B.V. Notes, a legal, valid and enforceable
security interest in the stock of FI owned by FCX and pledged
thereunder, the certificates for such shares have been delivered
to the FCX Collateral Agent and the FCX Pledge Agreements
constitutes a fully perfected first priority Lien on, and
security interests in, all right, title and interest of FCX
thereunder in such stock and the proceeds thereof, in each case
prior and superior in right to any other Person.
(p) Assigned Agreements. Schedule V (as updated from time
to time as required hereby) is a complete and correct list of
each currently effective Major Concentrate Sales Agreement
(copies of which have heretofore been furnished to the
Administrative Agent). FI is not in default in any material
respect in its obligations under any Assigned Agreement nor is
any counterparty to any such agreement in default in its
obligations in any respect that could materially and adversely
affect the ability of FI to perform its obligations under the
Loan Documents.
(q) No Material Misstatements. No information, report
(including any Borrowing Base Certificate and any exhibit,
schedule or other attachment thereto or other document delivered
in connection therewith), financial statement, exhibit or
schedule prepared or furnished by either Borrower to the
Administrative Agent or any Bank in connection with this
Agreement or any of the other Loan Documents or included therein
or any information provided to Cravath, Swaine & Moore in
connection with the preparation of the environmental due
diligence summary memorandum referred to in Section 6.1(a)(xii)
contained or contains any material misstatement of fact or
omitted or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
ARTICLE V
Covenants
SECTION 5.1. Affirmative Covenants of the Borrowers. Each
of the Borrowers covenants and agrees with each Bank and Agent and the
FI Trustee that from and after the FCX Funding Date and so long as
this Agreement shall remain in effect and until the Commitments have
been terminated and the principal of and interest on each Loan, all
fees and all other expenses or amounts payable under any Loan Document
shall have been paid in full, that, without the prior written consent
of the Required Banks:
(a) Financial Statements, etc. The Borrowers shall furnish
each Bank (or, as provided below, the Administrative Agent):
(1) within 95 days after the end of each fiscal year, a
consolidated balance sheet of such Borrower and its
Subsidiaries as at the close of such fiscal year and
consolidated statements of operation and changes in retained
earnings and cash flow of it and its Subsidiaries for such
year, with the opinion thereon of Arthur Andersen LLP or
other independent public accountants of national standing
selected by it to the effect that such consolidated
financial statements fairly present the financial condition
and results of operations of such Borrower on a consolidated
basis in accordance with GAAP consistently applied, except
as disclosed in such auditor's report;
(2) within 50 days after the end of each of the first
three quarters of each of its fiscal years, a consolidated
balance sheet of such Borrower and its Subsidiaries as at
the end of such quarter and consolidated statements of
income of it and its Subsidiaries, for such quarter and for
the period from the beginning of the fiscal year to the end
of such quarter, certified by the Treasurer or other
authorized financial or accounting officer of FCX as fairly
presenting the financial condition and results of operations
of the Borrowers on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit
adjustments;
(3) promptly after their becoming available, (a) copies
of all financial statements, reports and proxy statements
which such Borrower shall have sent to its public
stockholders generally and, in the case of FI, will furnish
to the Administrative Agent copies of all notices to or from
its stockholders alleging or claiming a breach or default
relating to their shareholding in FI or with respect to any
matter which could reasonably be expected to have an adverse
effect on the FI Collateral and Rights, (b) copies of all
registration statements (excluding registration statements
relating to employee benefit plans) and regular and periodic
reports, if any, which it shall have filed with the SEC, or
any governmental agency substituted therefor, and (c) if
requested by any Bank, copies of each annual report filed
with any governmental agency pursuant to ERISA with respect
to each Plan of such Borrower or any of the Subsidiaries;
(4) promptly upon the occurrence of any Default or
Event of Default, the occurrence of any default under any
other Loan Document, the commencement of any proceeding
regarding the Borrowers or any of their Subsidiaries under
any Federal or state bankruptcy law, any other development
that has resulted in, or could reasonably be expected to
result in, a Material Adverse Effect, notice thereof,
describing the same in reasonable detail;
(5) on the FCX Funding Date and at the time of
provision of the financial statements referred to in clauses
(1) and (2) above, an update of Schedule III to correct, add
or delete any required information;
(6) in the case of FI, a copy to the Administrative
Agent of all notices alleging or claiming a breach or
default or with respect to any matter which could reasonably
be expected to have an adverse effect upon the FI Collateral
and Rights (i) by or to Indonesian Governmental Authorities
in connection with the FI Project or pursuant to the
Contract of Work or the Memorandum of Understanding and (ii)
by or to FI or its Affiliates pursuant to the Specified
Documents, and a copy of any proposed amendment to the
Contract of Work, Memorandum of Understanding or any
Specified Documents prior to execution and delivery thereof;
(7) all documents, notices and other material required
to be provided to the Administrative Agent or the Banks by
Section 5.3; and
(8) from time to time, such further information
regarding the business, affairs and financial condition of
the Borrowers or any Subsidiary as any Bank may reasonably
request.
At the time the Borrowers furnish financial statements pursuant
to the foregoing clauses (1) and (2), each Borrower will also
furnish each Bank a certificate by its Treasurer or other
authorized Financial Officer setting forth the calculation of:
(A) its current ratio as determined in accordance with
Section 5.2(e), (B) its EBITDA Ratio as determined in accordance
with Section 5.2(f) and (C) the Borrowers' compliance with
Section 5.2(b), and the Borrowers will also furnish a certificate
by its Treasurer or other authorized Financial Officer certifying
that no Default or Event of Default has occurred, or if such a
Default or Event of Default has occurred, specifying the nature
and extent thereof and any corrective action taken or proposed to
be taken with respect thereto.
(b) Taxes and Claims. The Borrowers shall, and shall cause
each of its Subsidiaries to, pay and discharge all taxes,
assessments and governmental charges or levies, imposed upon it
or upon its income or profits, or upon any property belonging to
it, prior to the date on which material penalties attach thereto;
provided that neither Borrower nor any Subsidiary shall be
required to pay any such tax, assessment, charge or levy, the
payment of which is being contested in good faith by proper
proceedings and with respect to which such Borrower or such
Subsidiary shall have, to the extent required by GAAP, set aside
on its books adequate reserves and such contest operates to
suspend collection of the contested obligation, tax, assessment
or charge and enforcement of a Lien.
(c) Maintenance of Existence; Conduct of Business. Each
Borrower shall preserve and maintain its corporate existence and
all its rights, privileges and franchises necessary or desirable
in the normal conduct of its business; provided that nothing
herein shall prevent any transaction permitted by Section 5.2(c).
(d) Compliance with Applicable Laws. Each Borrower shall,
and shall cause each of its Subsidiaries to, comply with the
requirements of all applicable laws, rules, regulations and
orders of any Governmental Authority, a breach of which would
materially and adversely affect its consolidated financial
condition or business, except where contested in good faith and
by proper proceedings and with respect to which such Borrower or
Subsidiary shall have, to the extent required by GAAP, set aside
on its books adequate reserves.
(e) Litigation. The Borrowers shall promptly give to each
Bank notice in writing of all litigation and all proceedings
before any governmental or regulatory agencies or arbitration
authorities affecting the Borrowers or any Subsidiary except
those which, if adversely determined, do not relate to the Loan
Documents and which would not have a material adverse effect on
the business, assets, operations or financial condition of the
Borrowers or the Borrowers' ability to comply with their
obligations under the Loan Documents.
(f) ERISA. Each Borrower shall, and shall cause each of
its Subsidiaries to, comply in all material respects with the
applicable provisions of ERISA and the Code and furnish to the
Administrative Agent (i) as soon as possible, and in any event
within 30 days after any Responsible Officer of the Borrowers or
any ERISA Affiliate knows or has reason to know that, any ERISA
Event has occurred that alone or together with any other ERISA
Event could reasonably be expected to result in liability of the
Borrowers in an aggregate amount exceeding $25,000,000 or
requires payment exceeding $10,000,000 in any year, a statement
of a Financial Officer of such Borrower setting forth details as
to such ERISA Event and the action that such Borrower proposes to
take with respect thereto.
(g) Compliance with Environmental Laws; Preparation of
Environmental Reports. (i) Each Borrower shall comply, and cause
its Subsidiaries and all lessees and other Persons occupying the
Properties to comply, in all material respects with all
Environmental Laws and Environmental Permits applicable to its
operations and Properties; obtain and renew all material
Environmental Permits necessary for its operations and
Properties; and conduct any Remedial Action in accordance with
Environmental Laws; provided, however, that none of the Borrowers
or any of their Subsidiaries shall be required to undertake any
Remedial Action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such
circumstances.
(ii) If a default caused by reason of a breach of Section
4.1(n) or 5.1(g)(i) shall have occurred and be continuing, at the
request of the Required Banks through the Administrative Agent,
the Borrowers shall provide to Banks within 45 days after such
request, at the expense of the Borrowers, an environmental site
assessment report for the Properties (which are the subject of
such default) prepared by an environmental consulting firm
acceptable to the Administrative Agent, indicating the presence
or absence of Hazardous Materials and the estimated cost of any
compliance or Remedial Action in connection with such Properties.
(h) Security. (i) FI at all times shall comply with the
provisions of the FI Security Documents and maintain in full
force and effect all the rights, powers and benefits of the FI
Trustee under the FI Security Documents in accordance with their
terms, including (x) the validity and effectiveness of the powers
of attorney granted by the Surat Kuasa and the Fiduciary Power
and the fiduciary transfers effectuated by the Fiduciary Transfer
and the Fiduciary Assignment and (y) maintenance of the security
interest of the FI Trustee in the collateral required to be
subjected to the Liens created by the FI Security Documents as a
perfected first priority (second priority, with respect to the
RTZ Collateral so long as the RTZ Loan is outstanding) security
interest as provided therein, subject only to the releases of
specific assets as and to the extent required by Section 8.1(j)
and
(ii) FCX at all times shall comply with the provisions of the
FCX Pledge Agreements and maintain in full force and effect all
the rights, powers and benefits of the FCX Collateral Agent under
the FCX Pledge Agreements in accordance with their respective
terms, including maintenance of the security interest of the FCX
Collateral Agent in the collateral required to be subject to the
Liens created by the FCX Pledge Agreements as a perfected first
priority security interest as provided therein.
(i) Insurance. The Borrowers and each Restricted
Subsidiary shall (i) keep its insurable properties adequately
insured at all times; (ii) maintain such other insurance, to such
extent and against such risks, including fire, flood and other
risks insured against by extended coverage, as is customary with
companies in the same or similar businesses; (iii) maintain in
full force and effect public liability insurance against claims
for personal injury or death or property damage occurring upon,
in, about or in connection with the use of any properties owned,
occupied or controlled by it in such amount as it shall
reasonably deem necessary; and (iv) maintain such other insurance
as may be required by law. The proceeds of any political risk
insurance of FCX or FI shall be applied promptly to the
prepayment of the Loans of FI and FCX and the Loans pursuant to
the FI Credit Agreement (it being understood that the allocation
of such prepayments among such Loans shall be determined solely
by FCX). Prepayments pursuant to this Section 5.1(i) shall not
be subject to Section 3.13 unless the occurrence that entitles
FCX to such insurance proceeds results in an Event of Default.
(j) Access to Premises and Records. The Borrowers and each
Subsidiary shall maintain financial records in accordance with
GAAP, and, at all reasonable times and as often as any Bank may
reasonably request, permit representatives of any Bank to have
access to its financial records and its premises and to the
records and premises of any of its Subsidiaries and to make such
excerpts from and copies of such records as such representatives
deem necessary and to discuss its affairs, finances and accounts
with its officers and its independent certified public
accountants or other parties preparing consolidated or
consolidating statements for it or on its behalf.
(k) Concentrate Sales Agreements. FI will (i) promptly
advise the Administrative Agent and the FI Trustee of any changes
to the information set forth on Schedule V and promptly assign
all Concentrate Sales Agreements and the proceeds from all FI
Receivables Purchase Agreements in effect from time to time to
the FI Trustee under, and in accordance with, Article III of the
FI Trust Agreement, require the counterparties thereto to make
all payments to FI thereunder directly to the Sales Proceeds
Account, and (ii) furnish to the Administrative Agent and the FI
Trustee copies of each Major Concentrate Sales Agreement and FI
Receivables Purchase Agreement entered into after the Closing
Date, and each amendment, waiver or supplement to any Concentrate
Sales Agreement which after such amendment, waiver or supplement
would be a Major Concentrate Sales Agreement, in each case
promptly after the execution and delivery thereof. FI may permit
Concentrate Sales Agreements to expire or terminate in accordance
with their terms.
(l) Protection of Contract Rights. FI will not terminate,
suspend, amend or grant waivers of any provisions of any of the
Assigned Agreements without the prior written consent of the
Required Banks; provided, however, that FI may amend or waive
provisions in any Concentrate Sales Agreement so long as such
amendment or waiver will not materially adversely affect the
business, financial condition or operations of FI or any rights
of the FI Trustee or the Banks. FI will promptly furnish to the
Banks and the Administrative Agent copies of any amendments to or
waivers or supplements of the Assigned Agreements. FI shall take
all steps necessary or advisable to protect its rights (and the
rights of the FI Trustee) under the Assigned Agreements.
(m) Source of Interest. FI (i) will conduct its business
so that interest paid on the Loans of FI to any Bank (or
Transferee) which is not a "related person" to FI within the
meaning of Section 861(c)(2)(B) of the Code as in effect on the
Closing Date will be deemed to be income from sources without the
United States within the meaning of Sections 861(a)(1)(A) and
861(c) of the Code as in effect on the Closing Date and (ii) will
use its best efforts (without undue cost) to conduct its business
so that interest paid on the Loans of FI to any Bank (or
Transferee) which is not a related person to FI within the
meaning of Section 861(c)(2)(B) of the Code (as it may be amended
or substituted after the Closing Date) will be deemed to be
income from sources without the United States within the meanings
of Sections 861(a)(1)(A) and 861(c) of the Code (as it may be
amended or substituted after the Closing Date).
(n) Further Assurances. Each Borrower shall, and shall
cause its Subsidiaries to, execute any and all further documents,
financing statements, agreements and instruments, and take all
further actions (including filing Uniform Commercial Code
financing statements and any Indonesian equivalents), which may
be required under applicable law, or which the Required Banks,
the Administrative Agent, the Documentary Agent or the FI Trustee
may reasonably request, in order to effectuate the transactions
contemplated by this Agreement and the other Loan Documents
including without limitation the FCX Pledge Agreements and the FI
Security Documents, and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests
created by the FI Security Documents and the FCX Pledge
Agreements. The Borrowers agree to provide such evidence as the
Agents or the FI Trustee shall reasonably request as to the
perfection and priority status of each such security interest and
Lien.
(o) Covenants Regarding FI. FCX shall cause FI to perform
the covenants relating to it set forth in Sections 5.1 and 5.2.
SECTION 5.2. Negative Covenants of the Borrowers. Each of
the Borrowers covenants and agrees with each Bank that, from and after
the FCX Funding Date and so long as this Agreement shall remain in
effect and until the Commitments have been terminated and the
principal of and interest on each Loan, all fees and all other
expenses or amounts payable under any Loan Document have been paid in
full, that, without the prior written consent of the Required Banks:
(a) Conflicting Agreements. Each Borrower shall not and
shall cause its Restricted Subsidiaries not to enter into any
agreement containing any provision which would be violated or
breached by the performance of their obligations under any Loan
Document or under any instrument or document delivered or to be
delivered by them hereunder or thereunder or in connection
herewith or therewith, including any agreement with any Person
which would prohibit or restrict (i) in the case of FI and the
other Restricted Subsidiaries the payments of dividends or other
distributions or (ii) the ability of such entities to create
Liens on any of their assets (other than as provided in
Sections 7.2.5 and 7.3 of the Participation Agreement and other
than on assets which are subject to Liens permitted pursuant to
paragraphs (i) with respect to such required margin deposits
only, (ii), (iii), (iv), (vi), (vii) and (ix) of Section 5.2(d)
and extensions and renewals and replacements thereof to the
extent permitted pursuant to Section 5.2(d)(x)).
(b) Borrowing Base Limits. Except to the extent expressly
permitted by Section 2.4 or Section 3.9(c), the Borrowers shall
not at any time permit the sum of all Borrowing Base Debt to
exceed the then effective Borrowing Base.
(c) Consolidation or Merger; Disposition of Assets and
Capital Stock. Each Borrower shall not, and shall not permit any
Restricted Subsidiary to, merge into or consolidate with any
Person, or sell, lease, transfer or otherwise dispose of (in one
transaction or a series of transactions) (A) in the case of FCX,
stock in FI constituting at least 50.1% of the ownership of FI on
a fully diluted basis and (B) in the case of FI and its
Restricted Subsidiaries, all or any substantial part of its
assets (whether now owned or hereafter acquired) or any capital
stock of any Restricted Subsidiary, except for (i) dispositions
of accounts receivable and dispositions of investment instruments
and inventory in the ordinary course of business; provided that
the proceeds of any sale of accounts receivable by FI or its
Restricted Subsidiaries are deposited in the Sales Proceeds
Account, (ii) dispositions of obsolete or worn-out property, or
real estate not used or useful in its business, (iii) subject to
the last sentence of Section 5.2(j) and to Section 5.2(p) and to
FI itself at all times retaining its rights to the Contract of
Work and tangible assets sufficient for FI's production
activities from which revenues from scheduled production of the
10-K Reserves referred to in Schedule VII are pledged to (or for
the benefit of) the Banks, dispositions of assets by FI or its
Restricted Subsidiaries to another Restricted Subsidiary of FI or
to FI, (iv) subject to Section 5.2(l), dispositions of assets by
FI or its Restricted Subsidiaries to a Third Party, (v) to the
extent permitted by Sections 5.2(j) and 5.2(q), the payment of
dividends in cash or in kind by a Borrower or any Restricted
Subsidiary, whether now owned or hereafter acquired, (vi)
permitted sale and leaseback transactions, (vii) the transactions
comprising the Restructuring, (viii) investments in Portfolio
Investments and dispositions thereof, and (ix) the transfer of
the RTZ Interests to PT-RTZ as permitted by Section 5.3, the FI
Intercreditor Agreement and the FI Trust Agreement, except that:
(w) the Borrowers or any Restricted Subsidiary may
merge or liquidate any corporation (other than, in the case
of a Restricted Subsidiary, FI or FCX) into itself;
(x) any Restricted Subsidiary (other than FI) may be
merged into any other corporation; provided that such
corporation, immediately following such merger, shall be
deemed a Restricted Subsidiary;
(y) FI and the Restricted Subsidiaries may engage in
sale and leaseback transactions (including sale and
leaseback transactions which initially take the form of a
purchase money transaction in that title to the equipment
passes through FI or a Restricted Subsidiary prior to being
held by the lessor in the sale and leaseback transaction)
for assets with a cumulative aggregate fair market value not
in excess of $50,000,000 and FI may, subject to Section
5.2(r), consummate the transfer of the Waste Water Assets as
required by the Waste Water Documents and the transfer of
the remaining PFT Assets and ALatieF-FI Assets as required
by the PFT Documents and the ALatieF-FI Documents,
respectively, and the transfer in respect of Contract Area
Block B referred to in Section 8.1(j) subject to the
conditions precedent thereto set forth in Section 8.1(j);
and
(z) subject to Sections 2.5 (to the extent that such
transaction is a Net Proceeds Transaction) and 5.2(j) and in
addition to the other transactions expressly permitted by
the other provisions of this Section 5.2(c) and by
Section 5.2(r), the Borrowers or any Restricted Subsidiary
may sell or otherwise dispose of (including by merger or
consolidation) any assets or securities of any Subsidiary
other than stock of FI owned by FCX representing at least
50.1% of the voting stock of FI on a fully diluted basis
pledged pursuant to the FCX Pledge Agreements and other than
assets of FI and its Restricted Subsidiaries, pledged to the
FI Trustee pursuant to the FI Security Documents except to
the extent permitted by clause (y) above and by
Section 5.2(r);
provided, however, that in the case of a merger permitted by
clause (w) above, immediately thereafter and giving effect
thereto, such Borrower or, as the case may be, a Restricted
Subsidiary would be the surviving corporation and, in the case of
a merger permitted by clause (w) or clause (x) above or of any
disposition of assets or securities permitted by clause (y) or
(z) above, no Default or Event of Default would, immediately
thereafter and giving effect thereto, have occurred and be
continuing. Each sale or other disposition permitted by
clause (z) above shall be permitted only if the Borrower or the
respective Restricted Subsidiary shall receive fair consideration
therefor, as determined by the Board of Directors of the Borrower
or of such Restricted Subsidiary, as the case may be, and
certified by its Treasurer or another of its Financial Officers
to the Administrative Agent.
(d) Liens. Each Borrower shall not, nor shall it permit
any of its Restricted Subsidiaries to, create, incur, assume, or
suffer to exist any Lien upon any of its respective properties,
revenues or assets (including stock or other securities of any
Person, including any Subsidiary), now owned or hereafter
acquired, except:
(i) required margin deposits on permitted Hedge
Agreements, surety and appeal bonds and materialmen's,
suppliers', tax and other like Liens arising in the ordinary
course of its or such Restricted Subsidiary's business
securing obligations which are not overdue or are being
contested in good faith by appropriate proceedings and as to
which adequate reserves have been set aside on its books to
the extent required by GAAP, Liens arising in connection
with workers' compensation, unemployment insurance and
progress payments under government contracts, and other
Liens incident to the ordinary conduct of its or such
Restricted Subsidiary's business or the ordinary operation
of property or assets and not incurred in connection with
the obtaining of any Debt or Guarantee;
(ii) Liens on assets or properties not owned as of the
Closing Date by a Borrower or any Restricted Subsidiary
securing only purchase money Debt of such Borrower or such
Restricted Subsidiary permitted by Section 5.2(g)(v), which
Liens are limited to the specific property the purchase of
which is financed by such Debt;
(iii) Liens, existing at the time of the acquisition by a
Borrower or any Restricted Subsidiary of the majority of the
capital stock or all the assets of any other corporation or
existing at the time of the merger of any such corporation
into it or a Restricted Subsidiary, on such capital stock or
assets so acquired or on the assets of the corporation so
merged into such Borrower or such Restricted Subsidiary;
provided, however, that such acquisition or merger (and the
discharge of such Liens referred to in the immediately
succeeding proviso) shall not otherwise result in an Event
of Default or Default; and provided further that all such
Liens shall be discharged within 180 days after the date of
the respective acquisition or merger;
(iv) Liens on the Caterpillar Assets to the extent
required by the Caterpillar Documents;
(v) Liens in favor of the Collateral Agent (for the
equal and ratable benefit of the Lenders (as defined in the
FCX Intercreditor Agreement) and the holders of the B.V.
Notes as provided in the FCX Pledge Agreements, and Liens in
favor of the Banks, the FI Lenders and the FI Trustee under
the FI Security Documents, all as contemplated by Section
4.1(o);
(vi) Liens on FI's interests in Jaya Power securing the
financing for such respective Specified Transactions;
(vii) Liens (which Lien in any such case is limited to
the property leased thereunder) of lessors of property (in
such capacity) leased by a Borrower or a Restricted
Subsidiary (x) pursuant to the Capitalized Lease Obligations
arising under the Specified Transactions, (y) pursuant to an
Operating Lease and (z) to the extent permitted by
Section 5.2(g)(vii) pursuant to other sale and leaseback
transactions entered into after the Closing Date, the
resulting Capitalized Lease Obligations.
(viii) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount and
do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of
the business of such Borrower or any of its Subsidiaries;
(ix) as permitted by Section 5.3, the RTZ Interests and
the first priority Lien of RTZ Lender on the RTZ Collateral;
and
(x) extensions, renewals and replacements of Liens
referred to in paragraphs (i), (ii), (iv), (v), (vi), (vii),
(viii) and (ix) of this Section 5.2(d); provided that any
such extension, renewal or replacement Lien shall be limited
to the property or assets covered by the Lien extended,
renewed or replaced and that the obligations secured by any
such extension, renewal or replacement Lien shall be in an
amount not greater than the amount of the obligations
secured by the Lien extended, renewed or replaced.
(e) Current Ratios. Each Borrower shall not fail to
maintain, as of the last day of each fiscal quarter, consolidated
current assets (excluding Nonrestricted Subsidiaries) in an
amount at least equal to the amount of its consolidated current
liabilities (excluding Nonrestricted Subsidiaries). For purposes
hereof, consolidated current assets and consolidated current
liabilities shall be determined in accordance with GAAP, except
that (i) investments in shares of corporations (other than shares
which are, and which are held as, marketable securities) and
advances to Nonrestricted Subsidiaries and other firms or
companies in which such Borrower has a material investment,
direct or indirect, or which have a direct or indirect material
investment in such Borrower shall not be included in current
assets; (ii) current assets shall be increased by the available
portion of the Commitments which, under the terms of this
Agreement, will, if not sooner terminated or drawn down by either
Borrower, remain outstanding for at least twelve months following
the time of determination; and (iii) the current portion of long-
term Debt shall not be included in current liabilities.
(f) EBITDA Ratios. Each Borrower shall not permit its
EBITDA Ratio to be less than 2.00 to 1.00 at the end of any
fiscal quarter.
(g) Debt. Neither Borrower nor any Restricted Subsidiary
shall incur, create, assume or permit to exist any Debt of any of
them except:
(i) Corporate Group Loans;
(ii) the Specified Obligations, including the
Capitalized Lease Obligations with respect to the PFT
Assets, the ALatieF-FI Assets, the P&O Assets, the Airfast
Assets and the Waste Water Assets;
(iii) $120,000,000 of aggregate principal amount of
P.T. ALatieF Freeport Finance Company B.V.'s Senior Notes
due 2001 (the 'B.V. Notes'), the Guarantee by FCX of the
B.V. Notes and the PT-FI Note (as defined in the B.V.
Registration Statement).
(iv) up to $70,000,000 aggregate principal amount of
borrowings from Caterpillar by FCX, and the Guarantee
thereof by FI (together with such Debt, the "Caterpillar
Obligations"), such guarantee to be secured by certain
specified heavy equipment of FI and related spare parts (the
"Caterpillar Assets") released or required to be released
from the lien of the FI Security Documents, all
substantially on the terms set forth in the Caterpillar
Documents (the "Caterpillar Transaction");
(v) purchase money indebtedness (excluding sale and
leaseback transactions which initially take the form of a
purchase money transaction in that title to the equipment
passes through FI or a Restricted Subsidiary prior to being
held by the lessor in the sale and leaseback transaction) of
the Borrowers and any Restricted Subsidiary secured by Liens
permitted by Section 5.2(d)(ii) not in excess of the
purchase price of the related asset in each individual case
and with an outstanding aggregate principal amount for all
such purchase money debt not at any time in excess of
$50,000,000;
(vi) Capitalized Lease Obligations (including those
resulting from sale and leaseback transactions) of the
Borrowers or any Restricted Subsidiary entered into after
the Closing Date (other than with respect to the Specified
Assets) with an outstanding aggregate principal amount not
at any time in excess of $50,000,000;
(vii) Guarantees by FCX of Debt of FM Properties and
Circle C not in excess of an aggregate principal amount of
$90,000,000 pursuant to the FCX/FMPO Guarantee, secured
pursuant to the FCX Intercreditor Agreement by the FCX
Pledge Agreements, and extensions, renewals, replacements
and refundings thereof;
(viii) up to $450,000,000 principal amount of Debt of FI
plus accrued commitment fees and interest to the RTZ Lender
pursuant to the RTZ Loan Agreement;
(ix) the Guarantee by FCX pursuant to the Implementation
Agreement of FI's obligations under the Transaction
Agreements (as such term is defined in the Implementation
Agreement); and
(x) other unsecured Debt of the Borrowers and the
Restricted Subsidiaries if, after giving effect to the
incurrence thereof, no Default or Event of Default would
occur or be continuing (including under Section 5.2(b)).
(h) Preferred Stock. The Borrowers and the Restricted
Subsidiaries shall not voluntarily redeem any preferred stock
issued by any them except for common stock of the issuer (with
cash for fractional shares).
(i) Scope of FI's Business. Neither FI nor FCX will
materially alter the nature of the business and activities in
which it is engaged as of the Closing Date.
(j) Ownership of FI. FCX shall not at any time directly or
indirectly own shares of voting stock or interests having on a
fully diluted basis less than 50.1% ownership interest in FI,
which shares are pledged to the FCX Collateral Agent pursuant to
the FCX Pledge Agreements (FCX hereby agreeing to cause
additional shares of FI to be pledged to the FCX Collateral Agent
as necessary to remain in full compliance at all times). FCX
shall own its interests in FI, free and clear of all Liens,
except for the Liens of the FCX Pledge Agreements. FCX shall
promptly notify the Administrative Agent in the event there
occurs any significant decrease in its percentage ownership of FI
below that indicated in the most recent Borrowing Base
Certificate or any decrease in such percentage interest below
50.1%. The ownership by FCX of common stock of FI shall be
direct and not through any intervening entity, except for the
percentage of common stock held by FCX on the Closing Date
through P.T. Indocopper Investama Corporation.
(k) Fiscal Year. Each Borrower shall not change its fiscal
year to end on any date other than December 31.
(l) Investments in Nonrestricted Subsidiaries and Persons
Not Subsidiaries. The Borrowers and their Restricted
Subsidiaries shall not make or permit to exist (x) any Guarantee
by it or a Restricted Subsidiary of the Debt of any Person (other
than FM Properties Co., to the extent permitted by
Section 5.2(g)(vii)) which is not FCX or a Restricted Subsidiary,
including Nonrestricted Subsidiaries, FTX and FRP (each such
Person being a "Third Party"), or (y) any loans or advances to,
or purchase any stock, other securities or evidences of
indebtedness of, or permit to exist any investment (whether by
transfer of assets or otherwise) or acquire any investment
whatsoever in or make any Guarantee with respect to any such
loans, advances, purchases, investments or acquisitions of
interest with respect to, or any other payment for the benefit
of, any Third Parties the aggregate outstanding amount of which
under clauses (x) and (y) at any time exceeds by more than
$75,000,000 the largest aggregate amount thereof outstanding at
any time in the preceding fiscal year of FI, but only so long as
no Default or Event of Default (including under Section 5.2(b))
shall have occurred or be continuing as of the effective date of
such transaction and after giving effect thereto; provided that,
notwithstanding the provisions of clauses (x) and (y) above, the
Borrowers and the Restricted Subsidiaries may invest in Portfolio
Investments, FCX may enter into and perform the FCX/FMPO
Guarantee and FI may consummate the Waste Water Transaction and
transfer the remaining ALatieF-FI Assets, PFT Assets and P&O
Assets as required by the ALatieF Documents, the PFT Documents
and the P&O Documents, respectively, each of which shall not be
included in the calculation of such $75,000,000 annual limit.
(m) Federal Reserve Regulations. The Borrowers will not,
and will cause their Subsidiaries not to, use the proceeds of any
Loan in any manner that would result in a violation of, or be
inconsistent with, the provisions of Regulations G, U or X.
(n) FI Transfers. FI shall not make any contribution or
transfer of any substantial portion of its assets to FCX or any
Restricted Subsidiary other than (i) permitted cash dividends to
FCX and (ii) to a Wholly Owned Restricted Subsidiary of FI all
the equity in which shall be pledged pursuant to the FI Security
Documents to the FCX Collateral Agent as additional security for
the Loans to FI.
(o) Specified Transactions. The Borrowers shall not (i)
enter into any amendment or modification of any of the Specified
Documents which would have an adverse effect upon the rights and
remedies of the Administrative Agent, the FI Trustee and the
Banks under the Loan Documents or the collateral therefor (the
"FI Collateral and Rights") or impair the ability of any of the
Borrowers or the Restricted Subsidiaries to perform all of their
respective obligations under the Loan Documents; (ii) make, or
permit any Restricted Subsidiary to make, any voluntary
prepayment of any of the Specified Obligations (including the
B.V. Notes and any other Debt incurred in connection with such
Specified Transaction) or directly or indirectly, with or from
any funds or assets provided, directly or indirectly, by the
Borrowers or any Restricted Subsidiary beyond those expressly
permitted by Section 5.2(1) (collectively, "Restricted Assets"),
in any such case during the continuance of any Default or Event
of Default or, if, after giving effect to any such voluntary
prepayment (x) any Default or Event of Default would then exist
or result from such transaction or (y) except for refinancings
thereof on terms that are not more restrictive on, or less
favorable to, FI, if the Available Borrowing Base would be less
than $125,000,000; (iii) make, or permit any Restricted
Subsidiary to make, any voluntary repurchase of the PFT Assets,
the ALatieF Assets, the P&O Assets, the Airfast Assets or the
Waste Water Assets directly or indirectly from or with any
Restricted Asset during the continuance of any Default or Event
of Default or, if, after giving effect to any such voluntary
repurchase, (x) any Default or Event of Default would then exist
or result from such transaction or (y) if the Available
Borrowing Base would be less than $125,000,000 nor shall FCX and
FI grant or provide (or permit any Restricted Subsidiary to
grant or provide) any additional security or collateral to
secure any Specified Obligations (other than as required under
the Specified Documents with respect to substitution or
replacement of existing collateral) and other than the transfer
of the remaining ALatieF-FI Assets, P&O Assets and PFT Assets as
required by the ALatieF Documents, the P&O Documents and the PFT
Documents.
(p) Transactions with Affiliates. Other than the
transactions constituting the Restructuring, the Borrowers and
their Restricted Subsidiaries' shall not sell or transfer any
property or assets to, or purchase or acquire any property or
assets from, or otherwise engage in any other transactions with,
any of its Affiliates, except that as long as no Default or
Event of Default shall have occurred and be continuing, the
Borrowers or any Restricted Subsidiary may engage in any of the
foregoing transactions (i) in the case of a transaction between
a Borrower or a Restricted Subsidiary of a Borrower and a
non-Wholly Owned Restricted Subsidiary, the relevant Borrower
has determined that such transaction is in the best interests of
such Borrower and (ii) in the case of any other transaction
between a Borrower or a Restricted Subsidiary and an Affiliate
which is not a Restricted Subsidiary, at prices and on terms and
conditions not less favorable to the Borrower or such Restricted
Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties.
(q) Equity Payments. The Borrowers shall not make an
Equity Payment if there is then continuing any Default or Event
of Default (or a Default or Event of Default would result
therefrom or exist after giving effect thereto), including
pursuant to Section 5.2(b).
(r) Covenants Regarding Waste Water. FI shall not
consummate the Waste Water Transaction until such time as (i)
the Administrative Agent has received and given written approval
of the Waste Water Documents to which FI, FCX or any Restricted
Subsidiary is a party or with respect to which FI, FCX or any
Restricted Subsidiary has any direct or indirect obligation or
liability, each such approval to be conditioned upon the
satisfactory factoring of such financing and/or obligations into
the calculation of Borrowing Base Debt and (ii) the
Administrative Agent has entered into an agreement with the
secured bank lenders to Waste Water recognizing and agreeing not
to contest such lenders liens on the Waste Water Assets in
exchange for a reciprocal agreement by such lenders with respect
to the Liens of the FI Security Documents (and the Banks hereby
authorize the Administrative Agent to enter into such
agreements).
(s) Hedge Transactions. The Borrowers and the Restricted
Subsidiaries will enter into or become obligated with respect to
Hedge Agreements only in the ordinary course of business to
hedge or protect against actual or reasonably anticipated
exposures and not for speculation.
SECTION 5.3. Covenants Relating to RTZ Transaction. The
Borrowers shall not, directly or indirectly enter into (i) any
amendment or modification of (x) the Stock Purchase Agreement or the
Implementation Agreement from and after the Closing Date, (y) any
amendment or modification of the Participation Agreement or the RTZ
Loan Agreement from and after the RTZ Closing Date, or (z) any other
material agreement in connection therewith at any time, in each case
other than pursuant to documents approved by the Required Banks (the
Stock Purchase Agreement, the Implementation Agreement, the
Participation Agreement, the RTZ Loan Agreement and such other
approved material agreements being, collectively, the "RTZ Documents")
which would have an adverse effect upon the FI Collateral and Rights
or impair the ability of any of the Borrowers or the Restricted
Subsidiaries to perform all of their respective obligations under the
Loan Documents (including under this Section 5.3); or (ii) if any
Default or Event of Default shall have occurred and be continuing or
would result therefrom, make payment of the Debt under the RTZ Loan
Agreement with or from any funds or assets other than Incremental
Expansion Cashflow (as defined in the Participation Agreement).
Without the prior written approval of the Required Banks, FI shall not
(i) consent to any "Closedown" (as such term is defined in the
Participation Agreement) or any amendment, modification or waiver of
Section 10.5 of the Participation Agreement, (ii) consent to any
assignment by RTZ, RTZ Lender or PT-RTZ of the RTZ Documents or their
respective obligations thereunder, (iii) waive any material condition
to closing under the Implementation Agreement, (iv) agree to or
effectuate any alternative arrangements pursuant to Section 11 of the
Implementation Agreement, (v) waive any material default by RTZ under
the RTZ Documents or (vi) resign as the Operator under the
Participation Agreement. Subject to the penultimate sentence of this
Section 5.3, FI and its Restricted Subsidiaries shall not cause or
permit any assets of it or its Restricted Subsidiaries to be or become
Joint Account Assets under the Participation Agreement for other than
full fair market compensation nor shall FCX and FI grant or provide
(or permit any Restricted Subsidiary to grant or provide) any
additional security or collateral to secure any obligation to RTZ or
its Affiliates (including obligations under the RTZ Loan Agreement)
other than the transfer of the RTZ Interests as required by the
Participation Agreement and the grant of a first priority security
interest to RTZ Lender in the RTZ Collateral, in each case subject to
the terms of the FI Intercreditor Agreement and the FI Trust
Agreement. FI and its Restricted Subsidiaries shall not engage in any
transaction (other than the RTZ Transactions) or dealing with, or
assign or transfer any assets to, PT-RTZ or any of its Affiliates
other than on an arm's-length basis. FI shall promptly provide to the
Administrative Agent copies of all annual financial reports and
budgets pursuant to the Participation Agreement and all other material
notices and reports under the RTZ Documents. FI shall also conduct
Joint Operations (as defined in the Participation Agreement) in a
manner which does not prevent or adversely affect, and at all times
shall retain rights under the Contract of Work and tangible assets
sufficient for, FI's production activities from which revenues from
scheduled production of the 10-K Reserves referred to in Schedule VII
are pledged to the Banks. Subject to the foregoing and the other
terms of the Loan Documents (including Section 10.17), the Borrowers
may enter into and perform their obligations under the RTZ Documents.
ARTICLE VI
Conditions of Credit
SECTION 6.1. Conditions to Initial Credit Events.
(a) Subject to satisfaction of the conditions to each Credit Event
required by Section 6.2, FCX may not borrow Loans hereunder until the
first date (the "FCX Funding Date") upon which the following
conditions have been satisfied:
(i) Each Bank shall have received its duly executed
Promissory Note of FCX complying with the provisions of
Section 3.4.
(ii) The Administrative Agent and the Documentary Agent
shall have received, on behalf of themselves and the Banks, a
favorable written opinion of (i) the General Counsel of FCX,
substantially to the effect set forth in Exhibit J-1, (II) Davis
Polk & Wardwell, counsel for the Borrowers, substantially to the
effect set forth in Exhibit K-1, (III) Liskow & Lewis, special
Louisiana counsel for the Borrowers, substantially to the effect
set forth in Exhibit L-1, (IV) Ali Budiardjo, Nugroho
Reksodiputro, special Indonesian counsel to FI, substantially to
the effect set forth in Exhibit M-1, and (V) Mochtar, Karuwin &
Komar, special Indonesian counsel for the Agents, substantially
in the form of Exhibit N-1, in each case (A) dated the FCX
Funding Date, (B) addressed to the Agents and the Banks, and (C)
covering such other matters relating to the Restructuring, the
Loan Documents and the transactions contemplated thereby as the
Administrative Agent and the Documentary Agent shall reasonably
request, and the Borrowers hereby instruct such counsel to
deliver such opinions.
(iii) All legal matters incident to this Agreement, the
borrowings and extensions of credit hereunder and the other Loan
Documents shall be satisfactory to the Banks and to Cravath,
Swaine & Moore, special counsel for the Agents.
(iv) The Administrative Agent and the Documentary Agent
shall have received (I) a copy of the certificate of
incorporation, including all amendments thereto, of each
Borrower, certified as of a recent date by the Secretary of
State of the State of Delaware, and a certificate as to the good
standing (in the case of FI, valid domestication) of each
Borrower, (II) a certificate of the Secretary or Assistant
Secretary of each Borrower dated the FCX Funding Date and
certifying (A) that attached thereto is a true and complete copy
of the by-laws of such Borrower as in effect on the FCX Funding
Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted
by the Board of Directors of such Borrower authorizing the
execution, delivery and performance of the Loan Documents to
which such Person is a party and the borrowings hereunder, and
that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the
certificate of incorporation and by-laws of such Borrower have
not been amended since the date of the last amendment thereto
shown on the certificate of good standing furnished pursuant to
clause (I) above or the date of the certificate furnished
pursuant to clause (II) above, as applicable, and (D) as to the
incumbency and specimen signature of each officer executing any
Loan Document or any other document delivered in connection
herewith on behalf of such Borrower; (III) a certificate of
another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate
pursuant to (II) above; and (IV) such other documents as the
Banks or Cravath, Swaine & Moore, special counsel for the
Agents, may reasonably request.
(v) The Administrative Agent and the Documentary Agent
shall have received a certificate, dated the FCX Funding Date
and signed by a Financial Officer of each Borrower, confirming
compliance with the conditions precedent set forth in
paragraphs (i) and (iii) of Section 6.2.
(vi) The Administrative Agent shall have received all fees
and other amounts due and payable on or prior to the FCX Funding
Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed
or paid by the Borrowers hereunder or under any other Loan
Document.
(vii) The FI Security Documents shall have been amended and
duly executed substantially in the forms of the Interim FI
Security Documents attached as Exhibits F-1, F-2, F-3, F-4 and
F-5 and be in form and substance satisfactory to the
Administrative Agent, the Documentary Agent, the FI Trustee and
counsel for the Agents to provide for equal and ratable security
thereunder for the Banks and the FI Lenders, together with other
modifications deemed advisable by the Administrative Agent, the
Documentary Agent and the FI Trustee to take into account the
Restructuring, the Amendment Agreement and the transactions
contemplated hereby and thereby.
(viii) The FCX Pledge Agreements shall have been duly
executed by the parties thereto and delivered to the FCX
Collateral Agent and shall be in full force and effect, and
50.1% of the capital stock of FI directly owned by FCX shall
have been duly and validly pledged thereunder to the FCX
Collateral Agent for the ratable benefit of the Lenders (as such
term is defined in the FCX Intercreditor Agreement) and the
holders of the B.V. Notes and certificates representing such
capital stock, accompanied by instruments of transfer endorsed
in blank, shall be in the actual possession of the FCX
Collateral Agent.
(ix) The Restructuring shall have been completed on a
generally tax-free basis (subject to exceptions approved by
Administrative Agent and the Documentary Agent), including
arrangements in connection with the Restructuring with respect
to existing indebtedness of FTX, FRP, FCX and FI, all on terms
substantially the same as those described in Schedule VII or
otherwise satisfactory to the Required Banks (including all tax,
accounting, corporate and partnership matters), and the
Administrative Agent and the Documentary Agent shall have
received copies of satisfactory opinions of counsel with respect
to the Restructuring, its tax status and related matters as they
shall reasonably request.
(x) Closing and satisfaction of the conditions to initial
borrowing under a new $400,000,000 Chemical/Chase bank credit
facility for FRP and FTX shall have occurred substantially
simultaneously with the FCX Funding Date.
(xi) The Amendment Agreement shall have become effective as
of the FCX Funding Date and immediately prior thereto, no
Default or Event of Default shall have occurred and be
continuing under the FI Credit Agreement as then in effect.
(xii) The Administrative Agent shall have received an
environmental due diligence summary memorandum in form, scope
and substance reasonably satisfactory to the Banks, from
Cravath, Swaine & Moore as to certain environmental hazards,
liabilities or Remedial Action to which the Borrowers or their
Subsidiaries may be subject.
(xiii) The Stock Purchase Agreement and the Implementation
Agreement shall each be in full force and effect in form and
substance as approved by the Banks.
(xiv) The FCX Intercreditor Agreement shall have been
executed and delivered by all parties thereto other than the
Administrative Agent and shall be in full force and effect.
(xv) All approvals listed in Part I of Schedule IV shall
have been received in form and substance satisfactory to the
Administrative Agent and the Documentary Agent and be in full
force and effect.
(b) Subject to satisfaction of the conditions to each
Credit Event required by Sections 6.1(a) and 6.2, FI may not borrow
Loans hereunder until the first date (the "FI Funding Date") upon
which the following conditions have been satisfied:
(i) Each Bank shall have received its duly executed
Promissory Note of FI complying with the provisions of
Section 3.4.
(ii) The Administrative Agent and the Documentary Agent
shall have received, on behalf of themselves and the Banks, a
favorable written opinion of (I) the General Counsel of FCX,
substantially to the effect set forth in Exhibit J-2, (I) Davis
Polk & Wardwell, counsel for the Borrowers, substantially to the
effect set forth in Exhibit K-2, (III) Liskow & Lewis, special
Louisiana counsel for the Borrowers, substantially to the effect
set forth in Exhibit L-2, (IV) Ali Budiardjo, Nugroho
Reksodiputro, special Indonesian counsel to FI, substantially to
the effect set forth in Exhibit M-2, and (V) Mochtar, Karuwin &
Komar, special Indonesian counsel for the Agents, substantially
in the form of Exhibit N-2, in each case (A) dated the FI
Funding Date, (B) addressed to the Agents and the Banks, and (C)
covering such other matters relating to the Loan Documents and
the transactions contemplated thereby as the Administrative
Agent and the Documentary Agent shall reasonably request, and
the Borrowers hereby instruct such counsel to deliver such
opinions.
(iii) All legal matters incident to this Agreement, the
borrowings and extensions of credit hereunder and the other Loan
Documents shall be satisfactory to the Banks and to Cravath,
Swaine & Moore, special counsel for the Agents.
(iv) The Administrative Agent and the Documentary Agent
shall have received (I) a copy of any amendments since the FCX
Funding Date to the certificate of incorporation of each
Borrower, certified as of a recent date by the Secretary of
State of the State of Delaware, and a certificate as to the good
standing (in the case of FI, valid domestication) of each
Borrower as of a recent date, from such Secretary of State;
(II) a certificate of the Secretary or Assistant Secretary of
each Borrower dated the FI Funding Date and certifying (A) that
attached thereto is a true and complete copy of any amendments
since the FCX Funding Date to the by-laws of such Borrower and
at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a
true and complete copy of resolutions duly adopted by the Board
of Directors of such Borrower authorizing the execution,
delivery and performance of the Loan Documents to which such
Person is a party and the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are
in full force and effect, (C) that the certificate of
incorporation and by-laws of such Borrower have not been amended
since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (I)
above or the date of the certificate furnished pursuant to
clause (II) above, as applicable, and (D) as to the incumbency
and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith
on behalf of such Borrower; (III) a certificate of another
officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate
pursuant to (II) above; and (IV) such other documents as the
Banks or Cravath, Swaine & Moore, special counsel for the
Agents, may reasonably request.
(v) The Administrative Agent and the Documentary Agent
shall have received a certificate, dated the FI Funding Date and
signed by a Financial Officer of each Borrower, confirming
compliance with the conditions precedent set forth in
paragraphs (i) and (iii) of Section 6.2.
(vi) The Administrative Agent shall have received all fees
and other amounts due and payable on or prior to the FI Funding
Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed
or paid by the Borrowers hereunder or under any other Loan
Document.
(vii) All approvals listed in Part II of Schedule IV shall
have been received in form and substance satisfactory to the
Administrative Agent and the Documentary Agent and be in full
force and effect.
(c) On the date upon which the Participation Agreement and
the RTZ Loan Agreement become effective (the "RTZ Closing Date"), and
as a condition precedent thereto, the following conditions shall have
been satisfied:
(i) The Final FI Security Documents shall have been amended
substantially the form approved by the Banks pursuant to
Section 10.17 and attached as Exhibits G-1, G-2, G-3, G-4 and G-
5 and be in form and substance satisfactory to the
Administrative Agent, the Documentary Agent, the FI Trustee, the
Banks and counsel for the Agents to provide for equal and
ratable security thereunder for, the Banks and the FI Lenders.
(ii) The Participation Agreement and the RTZ Loan Agreement
shall each be in full force and effect in form and substance as
approved by the Banks pursuant to Section 10.17.
(iii) The FI Intercreditor Agreement shall have been executed
and delivered by all parties thereto other than the
Administrative Agent and shall be in full force and effect in
form and substance as approved by the Banks pursuant to
Section 10.17.
(iv) All approvals listed in Part III of Schedule IV shall
have been received in form and substance satisfactory to the
Administrative Agent and the Documentary Agent and be in full
force and effect.
(v) The Administrative Agent and the Documentary Agent
shall have received, on behalf of themselves and the Banks, a
favorable written opinion of (I) the General Counsel of FCX,
substantially to the effect set forth in Exhibit J-3, (I) Davis
Polk & Wardwell, counsel for the Borrowers, substantially to the
effect set forth in Exhibit K-3, (III) Liskow & Lewis, special
Louisiana counsel for the Borrowers, substantially to the effect
set forth in Exhibit L-3, (IV) Ali Budiardjo, Nugroho
Reksodiputro, special Indonesian counsel to FI, substantially to
the effect set forth in Exhibit M-3, and (V) Mochtar, Karuwin &
Komar, special Indonesian counsel for the Agents, substantially
in the form of Exhibit N-3, in each case (A) dated the RTZ
Closing Date, (B) addressed to the Agents and the Banks, and (C)
covering such other matters relating to the RTZ Transactions,
the FI Intercreditor Agreement, the FI Security Documents, the
other Loan Documents and the transactions contemplated thereby
as the Administrative Agent and the Documentary Agent shall
reasonably request, and the Borrowers hereby instruct such
counsel to deliver such opinions.
(vi) All legal matters incident to this Agreement, the
borrowings and extensions of credit hereunder and the other Loan
Documents shall be satisfactory to the Banks and to Cravath,
Swaine & Moore, special counsel for the Agents.
(vii) The Administrative Agent and the Documentary Agent shall
have received (I) a copy of any amendments since the FI Funding
Date to the certificate of incorporation of each Borrower,
certified as of a recent date by the Secretary of State of the
State of Delaware, and a certificate as to the good standing (in
the case of FI, valid domestication) of each Borrower as of a
recent date, from such Secretary of State; (II) a certificate of
the Secretary or Assistant Secretary of each Borrower dated the
RTZ Closing Date and certifying (A) that attached thereto is a
true and complete copy of any amendments since the FI Funding
Date to the by-laws of such Borrower and at all times since a
date prior to the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of
Directors of such Borrower authorizing the execution, delivery
and performance of the Loan Documents to which such Person is a
party and the borrowings hereunder, and that such resolutions
have not been modified, rescinded or amended and are in full
force and effect, (C) that the certificate of incorporation and
by-laws of such Borrower have not been amended since the date of
the last amendment thereto shown on the certificate of good
standing furnished pursuant to clause (I) above or the date of
the certificate furnished pursuant to clause (II) above, as
applicable, and (D) as to the incumbency and specimen signature
of each officer executing any Loan Document or any other
document delivered in connection herewith on behalf of such
Borrower; (III) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to (II) above; and
(IV) such other documents as the Banks or Cravath, Swaine &
Moore, special counsel for the Agents, may reasonably request.
(viii) The Administrative Agent and the Documentary Agent
shall have received a certificate, dated the RTZ Closing Date
and signed by a Financial Officer of each Borrower, confirming
compliance with the conditions precedent set forth in
paragraphs (i) and (iii) of Section 6.2.
SECTION 6.2. Conditions Precedent to Each Credit Event.
Each Credit Event shall be subject to the following conditions
precedent:
(i) the representations and warranties on the part of the
Borrowers contained in the Loan Documents shall be true and
correct in all material respects at and as of the date of such
Credit Event as though made on and as of such date;
(ii) the Administrative Agent shall have received a notice
of such borrowing as required by Section 3.3;
(iii) no Event of Default shall have occurred and be
continuing on the date of such Credit Event or would result from
such Credit Event;
(iv) there shall have been no amendments to the Certificate
of Incorporation, Articles of Association or Certificate of
Domestication, as applicable, or the By-laws of FI or FCX since
the date of the Certificate furnished pursuant to
Section 6.1(a)(iv)(II)(C), other than amendments, if any, copies
of which have been furnished to the Administrative Agent; and
(v) there shall be no proceeding for the dissolution or
liquidation or any proceeding to revoke the Certificate of
Incorporation or Articles of Association of FI or FCX or its
respective corporate existence, which is pending or, to the
knowledge of the Borrowers, threatened against or affecting FI
or FCX.
SECTION 6.3. Representations and Warranties with Respect to
Credit Events. Each Credit Event shall be deemed a representation and
warranty by FCX and FI that the conditions precedent to such Credit
Event, unless otherwise waived in accordance herewith, shall have been
satisfied.
ARTICLE VII
Events of Default
SECTION 7.1. Events of Default. If any of the following
acts or occurrences (an "Event of Default") shall occur and be
continuing:
(a) default for three or more days in the payment when due
of any principal of any Corporate Group Note; or
(b) default for five or more days in the payment when due of
any interest on any Corporate Group Note, or of any other amount
payable under any Loan Document; or
(c) any representation or warranty made or deemed made in or
in connection with any Loan Document or in any certificate,
letter or other writing or instrument furnished or delivered to
the Agents, the FI Agent, the FI Trustee, the FCX Collateral
Agent, any Bank or any FI Lender pursuant hereto or to the FI
Credit Agreement shall prove to have been incorrect in any
material respect when made or effective or reaffirmed and
repeated, as the case may be; or
(d) default by FI or FCX in the due observance or
performance of any covenant, condition or agreement in
Sections 5.1(a)(4) with respect to notices of Defaults or Events
of Default, 5.1(c), 5.1(h) or 5.1(k) of either this Agreement or
the FI Credit Agreement, other than the covenant to preserve and
maintain all of such Person's rights, privileges and franchises
desirable in the normal conduct of its business; or
(e) default by FI or FCX in the due observance or
performance of any covenant, condition or agreement in
Section 5.2 or 5.3 of this Agreement or in Section 5.2 or 5.3 of
the FI Credit Agreement (other than, in each case,
Section 5.2(k)); or
(f) default by FI or FCX in the due observance or
performance of any other covenant, condition or agreement in any
Corporate Group Facility or in any other Loan Documents which
shall remain unremedied for 30 days after written notice thereof
shall have been given to such Person by any Bank; or
(g) FI, FCX or any Restricted Subsidiary shall
(i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, liquidation or similar law or, in the
case of FI, any such law of Indonesia, (ii) consent to the
institution of, or fail to contravene in a timely and
appropriate manner, any proceeding or the filing of any petition
described in clause (h) below, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator or
similar official for FI, FCX or such Restricted Subsidiary or
for a substantial part of its property or assets, (iv) file an
answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment
for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they
become due or (vii) take any action for the purpose of effecting
any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of FI, FCX or any
Restricted Subsidiary, or of a substantial part of the property
or assets of FCX, FI or any Restricted Subsidiary, under
Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal or state bankruptcy,
insolvency, receivership or similar law or, in the case of FI,
any such law of Indonesia, (ii) the appointment of a receiver,
trustee, custodian, sequestrator or similar official for FI, FCX
or any Restricted Subsidiary or for a substantial part of the
property of FI, FCX or any Restricted Subsidiary or (iii) the
winding-up or liquidation of FI, FCX or any Restricted
Subsidiary; and such proceeding or petition shall continue
undismissed for 60 days, or an order or decree approving or
ordering any of the foregoing shall continue unstayed and in
effect for 30 days; or
(i) default shall be made with respect to (x) any Hedge
Agreements or (y) any Debt of FI, FCX or any Restricted
Subsidiary if the effect of any such default shall be to
accelerate, or to permit the holder or obligee of any such
obligation or Debt (or any trustee on behalf of such holder or
obligee) to accelerate (with or without notice or lapse of time
or both), the maturity of Debt and/or the payment of any net
termination value in respect of Hedge Agreements in an aggregate
amount in excess of $10,000,000; or any payment of principal or
interest and/or of any payment due under a Hedge Agreement,
regardless of amount, on any Hedge Agreement or Debt of FI, FCX
or a Restricted Subsidiary in an aggregate principal amount (or
in the case of a Hedge Agreement, with a net termination value)
in excess of $10,000,000, shall not be paid when due, whether at
maturity, by acceleration or otherwise (after giving effect to
any period of grace specified in the instrument evidencing or
governing such Debt or other obligation); or
(j) an ERISA Event shall have occurred with respect to any
Plan or Multi-Employer Plan that, when taken together with all
other ERISA Events, reasonably could be expected to result in
liability of either Borrower and/or any Restricted Subsidiary
and the Borrower's ERISA Affiliates in an aggregate amount
exceeding $25,000,000 or requires payments exceeding $10,000,000
in any year; or
(k) a final judgment for the payment of money in excess of
$10,000,000 shall be rendered by a court or other tribunal
against FI, FCX or any Restricted Subsidiary and shall remain
undischarged for a period of 45 consecutive days during which
execution of such judgment shall not have been stayed
effectively; or any action shall be legally taken by a judgment
creditor to levy upon assets or properties of FI, FCX or any
Restricted Subsidiary to enforce any such judgment; or
(l) the security interest in the Contract of Work granted in
the FI Trust Agreement or any other security interest granted
under any other FI Security Document shall be deemed to be
invalid or fail to be in full force and effect or the Contract
of Work shall be terminated or otherwise fail to be in full
force and effect or shall be amended without the consent of the
Required Banks in any manner which materially and adversely
affects the rights and benefits granted to the FI Trustee and
the Banks under the FI Security Documents; or the Ministry of
Mines and Energy of Indonesia (or any successor entity) or the
Government of Indonesia shall have taken any action in
contravention of the Contract of Work which materially adversely
affects FI's ability to perform its obligations under any
Corporate Group Facility or the rights and benefits granted to
the FI Trustee under any FI Security Document; or
(m) any Governmental Authority shall condemn, seize,
nationalize, assume the management of or appropriate any
material portion of FI's property, assets or revenues (either
with or without payment of compensation); or
(n) any default or other event shall occur with respect to
any of the Specified Documents which would (with or without the
passage of time or the giving of notice) permit acceleration or
require prepayment of any of the Specified Obligations other
than with respect to a casualty event or condemnation affecting
the related Specified Assets, permit foreclosure upon the
related Specified Assets or require FI to repurchase the related
Specified Assets; or
(o) any security interest purported to be created by the FCX
Pledge Agreements shall cease to be, or shall be asserted by the
Borrowers or any of their Affiliates not to be, a valid,
perfected, first priority security interest in the securities,
assets or properties covered thereby, except to the extent that
any such loss of perfection or priority results from the failure
of the FCX Collateral Agent to maintain possession of
certificates representing securities pledged under the FCX
Pledge Agreements to the extent that such pledged securities are
certificated securities; or
(p) FI shall resign as "Operator" under the Participation
Agreement or an "Event of Default" under the RTZ Loan Agreement
or an "Event of Resignation" under the Participation Agreement
(or any event or condition which with or without the passage of
time or the giving of notice would constitute such an "Event of
Default" or an "Event of Resignation") shall occur and be
continuing; or
(q) there shall have occurred a Change in Control;
then, and in any such event (other than an event with respect to FI or
FCX described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the Administrative
Agent may, and at the request of the Required Banks shall, by written
or telegraphic notice to the Borrowers, take one or more of the
following actions at the same or different times: (i) declare the
Total Commitment to be terminated, whereupon the Total Commitment
shall forthwith terminate; (ii) declare all sums then owing by the
Borrowers under the Promissory Notes or otherwise owing hereunder to
be forthwith due and payable, whereupon all such sums shall become and
be immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Borrowers, anything contained herein or in any Promissory Note to
the contrary notwithstanding or (iii) exercise any or all the remedies
then available under the FI Security Documents or the FCX Pledge
Agreements; provided, however, that upon the occurrence of any event
described in paragraph (g) or (h) of this Section 7.1 as to which FI
or FCX is the entity involved, all sums then owing by the Borrowers to
the Banks upon the Promissory Notes or otherwise hereunder shall,
without any declaration or other action by any Bank hereunder, be
immediately due and payable and the Total Commitment hereunder shall
be immediately terminated without presentment, demand, protest or
notice of any kind, all of which are expressly waived by the
Borrowers, anything contained herein or in any Promissory Note to the
contrary notwithstanding. Promptly following the making of any such
declaration, the Administrative Agent shall give notice thereof to the
Borrowers but failure to do so shall not impair the effect of such
declaration.
ARTICLE VIII
The Agents and the FI Trustee
SECTION 8.1. The Agents and the FI Trustee. (a) For
convenience of administration and to expedite the transactions
contemplated by this Agreement, Chemical is hereby appointed as
Administrative Agent and FCX Collateral Agent for the Banks under this
Agreement and the FCX Pledge Agreements, Chase is hereby appointed as
the Documentary Agent for the Banks under this Agreement and First
Bank, National Association is hereby appointed as FI Trustee for the
Banks under the FI Security Documents. Each Bank (i) confirms and
agrees to be bound by the terms of the FI Trust Agreement and
(ii) agrees that the FI Trustee in accepting appointment and in acting
as security agent under the FI Security Documents shall be entitled to
all the rights, immunities, privileges, protections, exculpations,
indemnifications, liens and other benefits applicable to its acting as
trustee under the FI Trust Agreement. None of the Agents shall have
any duties or responsibilities with respect hereto except those
expressly set forth herein or in the other Loan Documents. Each Bank,
and each subsequent holder of any Promissory Note by its acceptance
thereof, hereby irrevocably appoints and expressly authorizes the
Agents, without hereby limiting any implied authority, to take such
action as the Agents may deem appropriate on its behalf and to
exercise such powers under this Agreement as are specifically
delegated to such Person by the terms hereof, together with such
powers as are reasonably incidental thereto. The Administrative Agent
is hereby expressly authorized by the Banks, without hereby limiting
any implied authority, (a) to receive on behalf of the Banks all
payments of principal of and interest on the Loans and all other
amounts due to the Banks hereunder, and promptly to distribute to each
Bank its proper share of each payment so received; (b) to give notice
on behalf of the Banks to the Borrowers of any Event of Default
specified in this Agreement of which the Administrative Agent has
actual knowledge acquired in connection with its agency hereunder or
as directed by the Required Banks; and (c) to distribute to each Bank
copies of all notices, financial statements and other materials
delivered by the Borrowers pursuant to this Agreement as received by
the Administrative Agent. Without limiting the generality of the
foregoing, the FCX Collateral Agent is hereby expressly authorized to
execute any and all documents (including releases) with respect to the
collateral under the FCX Pledge Agreements and the rights of the
secured parties with respect thereto, as contemplated by and in
accordance with the provisions of this Agreement and the FCX Pledge
Agreements. Each of the Administrative Agent and the FCX Collateral
Agent may exercise any of its duties hereunder by or through their
respective agents, officers or employees. In addition, each Bank
hereby irrevocably authorizes and directs (i) the FCX Collateral Agent
to enter, on behalf of each of them, into the FCX Pledge Agreements
and the FCX Intercreditor Agreement as contemplated pursuant to this
Agreement, (ii) the Administrative Agent to enter, on behalf of each
of them, into the FI Intercreditor Agreement and the FCX Intercreditor
Agreement as contemplated pursuant to this Agreement and (iii) the FI
Trustee to enter, on behalf of each of them, into the FI Security
Documents, and in each case agrees to be bound by the terms thereof.
(b) None of the Agents or any of their respective
directors, officers, agents or employees shall be liable as such for
any action taken or omitted to be taken by any of them except for its
or his own gross negligence or wilful misconduct, or be responsible
for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or
observance by the Borrowers or any other party of any of the terms,
conditions, covenants or agreements contained in any Loan Document.
The Agents shall not be responsible to the Banks or the holders of the
Notes for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement, the Notes or any other Loan Documents
or other instruments or agreements. The Administrative Agent may deem
and treat the payee of any Promissory Note as the owner thereof for
all purposes hereof until it shall have received from the payee of
such Promissory Note notice, given as provided herein, of the transfer
thereof in compliance with Section 10.3. The Agents shall in all
cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required Banks and,
except as otherwise specifically provided herein, such instructions
and any action or inaction pursuant thereto shall be binding on all
the Banks and each subsequent holder of any Promissory Note. Each
Agent shall, in the absence of knowledge to the contrary, be entitled
to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper
Person or Persons. None of the Agents nor any of their respective
directors, officers, employees or agents shall have any responsibility
to the Borrowers or any other party on account of the failure of or
delay in performance or breach by any Bank of any of its obligations
hereunder or to any Bank on account of the failure of or delay in
performance or breach by any other Bank or the Borrowers or any other
party of any of their respective obligations hereunder or under any
other Loan Document or in connection herewith or therewith. Each of
the Agents may execute any and all duties hereunder by or through
agents or employees and shall be entitled to rely upon the advice of
legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or suffered in
good faith by it in accordance with the advice of such counsel. The
Banks hereby acknowledge that none of the Agents shall be under any
duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be
requested in writing to do so by the Required Banks.
(c) To the extent that any Agent shall not be reimbursed by
the Borrowers for any costs, liabilities or expenses incurred in such
capacity or, to the extent the FI Trustee shall not be reimbursed by
the Borrowers for any costs, liabilities or expenses incurred in its
capacity as trustee under the FI Trust Agreement (including in its
capacity as security agent under the FI Security Documents), each Bank
agrees (i) to reimburse such Agent or the FI Trustee, as applicable,
on demand, in the amount of its Applicable Percentage Commitments
hereunder) of any expenses incurred for the benefit of the Banks by
such Agent or the FI Trustee, as applicable, including counsel fees
and compensation of agents and employees paid for services rendered on
behalf of the Banks and (ii) to indemnify and hold harmless each
Agent, the FI Trustee and any of their directors, officers, employees
or agents, on demand, in the amount of such Applicable Percentage,
from and against any and all liabilities, taxes, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against it in its capacity as Agent or FI
Trustee for the Banks, as applicable, or any of them in any way
relating to or arising out of this Agreement or any other Loan
Document or any action taken or omitted by it or any of them under
this Agreement or any other Loan Document; provided, however, that no
Bank shall be liable to an Agent or the FI Trustee for any portion of
such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or wilful misconduct of such Agent or the FI Trustee,
as applicable, or of its directors, officers, employees or agents.
(d) With respect to the Loans made by it hereunder and the
Promissory Notes issued to it, each Agent in its individual capacity
and not as Agent shall have the same rights and powers as any other
Bank and may exercise the same as though it were not an Agent, and the
Agents and their Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Borrowers or any
Subsidiary or other Affiliate thereof as if it were not an Agent.
(e) Subject to the appointment and acceptance of a
successor Agent as provided below, any Agent may resign at any time by
giving written notice thereof to the Banks and the Borrowers. Upon
any such resignation, the Required Banks shall have the right to
appoint, and the Borrowers shall have the right to approve (such
approval not to be unreasonably withheld or delayed) a successor
Administrative Agent, FCX Collateral Agent or Documentary Agent, as
the case may be. If no successor Agent, FCX Collateral Agent or
Documentary Agent, as the case may be, shall have been so appointed
and approved and shall have accepted such appointment, within 30 days
after the retiring Agent's giving of notice of resignation, then the
retiring Person may, on behalf of the Banks, appoint a successor
Administrative Agent, FCX Collateral Agent or Documentary Agent, as
the case may be, which shall be a Bank with an office in New York, New
York, having a combined capital and surplus of at least $500,000,000
or an Affiliate of any such Bank. Upon the acceptance of any
appointment as Administrative Agent, FCX Collateral Agent or
Documentary Agent hereunder by a successor Administrative Agent, FCX
Collateral Agent or Documentary Agent, as the case may be, such
successor Administrative Agent, FCX Collateral Agent or Documentary
Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall from and after such date be discharged from its
duties and obligations hereunder. After any such retiring Agent's
resignation hereunder as Administrative Agent, FCX Collateral Agent or
Documentary Agent, as applicable, the provisions of this Article VIII
and Section 10.4 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was acting as the Administrative
Agent, FCX Collateral Agent or Documentary Agent, as applicable.
(f) The Administrative Agent and the Documentary Agent
shall be responsible for supervising the preparation, execution and
delivery of this Agreement and the other agreements and instruments
contemplated hereby, any amendment or modification thereto and the
closing of the transactions contemplated hereby and thereby. In
addition, the Administrative Agent shall assist the FCX Collateral
Agent and the FI Trustee in the performance of its duties as may be
reasonably requested by the FCX Collateral Agent or the FI Trustee
from time to time.
(g) The obligations of the Administrative Agent, the FI
Trustee, the FCX Collateral Agent and the Documentary Agent shall be
separate and several and neither of them shall be responsible or
liable for the acts or omissions of the other, except, to the extent
that any such Agent serves in more than one agency capacity, such
Agent shall be responsible for the acts and omissions relating to each
such agency function.
(h) Without the prior written consent of the Required Banks
but subject to Section 10.7(b), the Administrative Agent and the FCX
Collateral Agent will not, except as contemplated by Section 8.1(j),
consent to any modification, supplement or waiver of the FI
Intercreditor Agreement, the FCX Intercreditor Agreement or (except as
required by the FCX Intercreditor Agreement) the FCX Pledge
Agreements, and the FI Trustee will not consent to any modification,
supplement or waiver of the FI Security Documents.
(i) Each Bank acknowledges that it has, independently and
without reliance upon the Agents or any other Bank and based on such
documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance
upon the Agents or any other Bank and based on such documents and
information as it shall from time to time deem appropriate, continue
to make its own decisions in taking or not taking action under or
based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
(j) Notwithstanding any other provision of this
Section 8.1, the Administrative Agent will, at the request of FI,
instruct the FI Trustee to release (or to subordinate such interest)
from the FI Trust Agreement and the other FI Security Documents (and
enter into an amendment to the FI Trust Agreement and the other FI
Security Documents and execute such other instruments as may be
necessary in connection therewith) any interest of the FI Trustee in
(i) the rights of FI under the Contract of Work in respect of all or
any part of Contract Area Block B (as defined in the Contract of
Work), without further consent by the Required Banks if, in the
opinion or opinions of counsel acceptable to the Administrative Agent
and in the opinion of the Administrative Agent, such release is to be
effected without impairing or adversely affecting (a) the Lien and
interest of the FI Trustee stated to be created in the rights of FI
under the Contract of Work in respect of Contract Area Block A (as
defined in the Contract of Work) and the FI Project (to the extent it
includes the mining, concentrating, transportation, shipping and
related operations of FI in respect of FI Product obtained or produced
from Contract Area Block A) by the FI Trust Agreement and the other
FI Security Documents, the Memorandum of Understanding and the
Contract of Work or (B) the rights of FI relating to ownership and
operation of the FI Project (to the extent it includes the mining,
concentrating, transportation, shipping and related operations of FI
in respect of FI Product obtained or produced from Contract Area
Block A), (ii) the property and rights to be transferred pursuant to
the Waste Water Transfer, (iii) the remaining property and rights to
be transferred after the Closing Date to complete the ALatieF-FI
Transfer and the PFT Transfer, (iv) upon receipt by the Administrative
Agent of a certificate from a Financial Officer of FI specifying the
asset to be released and the related transaction and certifying that
after giving effect thereto, no Default or Event of Default shall
occur or be continuing, specific physical assets (which may either be
released from the Lien of the FI Security Documents or excluded from
the after-acquired property clauses of the FI Security Documents) (x)
as required to be released to provide additional collateral for the
Caterpillar Obligations, as a result of decreases in the value of the
Caterpillar Assets, but not in excess of $10,000,000 (valued as
provided in the Caterpillar Documents) in the aggregate for all such
additional collateral provided during the term of the Caterpillar
Obligations and (y) to allow sales, secured financings, capital leases
and sale and leaseback transactions expressly permitted hereby and
(v) on and after the RTZ Closing Date, upon receipt by the
Administrative Agent of a certificate from a Financial Officer
specifying the asset to be released and the related transaction and
certifying that after giving effect thereto, no Default or Event of
Default shall occur or be continuing, the RTZ Interests as permitted
by Section 5.3 (which may either be released from the Lien of the FI
Security Documents or excluded from the after-acquired property
clauses of the FI Security Documents; provided, however, that in the
case of the RTZ Collateral, the Lien of the FI Trustee in favor of the
Banks and the FI Lenders shall be subordinated to become a second
priority lien on the RTZ Collateral subject to the first priority Lien
of the RTZ Lender thereon on the terms of the Final FI Trust Agreement
and the FI Intercreditor Agreement).
ARTICLE IX
Guarantee
SECTION 9.1. Guarantee. As consideration for the Banks'
obligations to lend to FI hereunder, FCX hereby unconditionally and
irrevocably guarantees, as a primary obligor and not merely as a
surety, the due and punctual payment of (x) the principal of and
interest on each Loan to FI, when and as due, whether at maturity, by
acceleration, by notice of prepayment or otherwise, (y) all other
monetary obligations of FI to the Banks, the Agents and the FI Trustee
under this Agreement and the other Loan Documents and (z) all amounts
owing by FI to any Bank pursuant to any Permitted Secured Hedge with
FI (collectively, the "FI Obligations"). FCX further agrees that the
FI Obligations may be extended or renewed, in whole or in part,
without notice or further assent from it, and that it will remain
bound upon its guarantee notwithstanding any extension or renewal of
any such FI Obligation.
FCX waives presentment to, demand of payment from and
protest to FI of any of the FI Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. The
obligations of FCX under this Section 9.1 shall not be affected by
(a) the failure of any Bank, any Agent or the FI Trustee to assert any
claim or demand or to enforce any right or remedy against FI under the
provisions of this Agreement or otherwise; (b) any rescission, waiver,
amendment or modification of any of the terms or provisions of this
Agreement, any Promissory Note any guarantee or any other agreement;
(c) the release of any security held by any Bank, any Agent or the FI
Trustee for the Obligations guaranteed by it or any of them; or
(d) the failure of any Bank, any Agent or the FI Trustee to exercise
any right or remedy against any other guarantor of the FI Obligations.
FCX further agrees that its guarantee constitutes a
guarantee of payment when due and not of collection, and waives any
right to require that any resort be had by any Bank, any Agent or the
FI Trustee to any security held for payment of the FI Obligations or
to any balance of any deposit account or credit on the books of such
Bank in favor of FI or any other Person.
The obligations of FCX under this Section 9.1 shall not be
subject to any reduction, limitation, impairment or termination for
any reason, including, without limitation, any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject
to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability
of the FI Obligations or otherwise. Without limiting the generality
of the foregoing, the obligations of FCX under this Section 9.1 shall
not be discharged or impaired or otherwise affected by the failure of
any Bank, any Agent or the FI Trustee to assert any claim or demand or
to enforce any remedy under this Agreement, any Promissory Note, any
guarantee or any other agreement, by any waiver or modification of any
thereof, by any default, failure or delay, wilful or otherwise, in the
performance of the FI Obligations, or by any other act or omission
which may or might in any manner or to any extent vary the risk of
FCX, or otherwise operate as a discharge of FCX as a matter of law or
equity.
FCX further agrees that its guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any
Obligation guaranteed by it (including, without limitation, any
payment pursuant to this guarantee) is rescinded or must otherwise be
restored by any Bank, any Agent or the FI Trustee upon the bankruptcy
or reorganization of FI or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Bank, any Agent or the FI Trustee may have at
law or in equity against FCX by virtue hereof, upon the failure of FI
to pay any of the FI Obligations when and as the same shall become
due, whether at maturity, by acceleration, after notice of prepayment
or otherwise, FCX hereby promises to and will, upon receipt of written
demand by any Bank, any Agent or the FI Trustee, forthwith pay, or
cause to be paid, to the Administrative Agent for distribution to the
Banks, the Agents or the FI Trustee, as appropriate, in cash the
amount of such unpaid FI Obligations, and at such time as all such FI
Obligations owing to such Bank, such Agent, or the FI Trustee as
applicable, have been indefeasibly paid in full and its Commitment
terminated, such Bank shall, in a reasonable manner, assign the amount
of such FI Obligations owed to it and paid by FCX pursuant to this
guarantee to FCX, such assignment to be pro tanto to the extent to
which the FI Obligations in question were discharged by FCX or make
such other disposition thereof as FCX shall direct (all without
recourse to such Bank, such Agent or the FI Trustee, as applicable,
and without any representation or warranty by such Bank, such Agent or
the FI Trustee, as applicable).
Upon payment by FCX of any sums to a Bank, an Agent or the
FI Trustee as provided above in this Section 9.1, all rights of FCX
against FI arising as a result thereof by way of right of subrogation
or otherwise shall in all respects be subordinated and junior in right
of payment to the prior indefeasible payment in full of all the FI
Obligations to the Banks, the Agents and the FI Trustee and all the FI
Obligations (as defined in the FI Credit Agreement) and shall not be
exercised by FCX prior to indefeasible payment in full of all
Corporate Group Loans and termination of the Commitments and the
commitments under the FI Credit Agreement.
ARTICLE X
Miscellaneous
SECTION 10.1. Notices. Notices and other com-
munications provided for herein shall be in writing and
shall be delivered by hand or overnight or same day courier
service or mailed or sent by telex, telecopy, graphic
scanning or other telegraphic communications equipment of
the sending party to the appropriate party's address set
forth on the signature pages hereof. All notices and other
communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have
been given on the date of receipt if hand delivered or three
days after being sent by registered or certified mail,
postage prepaid, return receipt requested, if by mail, or
upon receipt if by any telecopy, telegraphic or telex
communications equipment, in each case addressed to such
party as provided in this Section 10.1 or in accordance with
the latest unrevoked direction from such party. Any notice
delivered to FCX hereunder shall be deemed also to have been
given to FI, and such notice shall be deemed to have been
given to FI on the day it is deemed to have been given to
FCX.
SECTION 10.2. Survival of Agreement. All cove-
nants, agreements, representations and warranties made by FI
or FCX herein and in the certificates or other instruments
prepared or delivered in connection with this Agreement
shall be considered to have been relied upon by the Banks,
the Agents and the FI Trustee and shall survive the making
by the Banks of the Loans and the execution and delivery to
the Banks of the Promissory Notes evidencing such Loans
regardless of any investigation made by the Banks or on
their behalf, and shall continue in full force and effect as
long as the principal of or any accrued interest on any
Corporate Group Note, any Commitment Fee or any other fee or
amount payable under the Corporate Group Notes or the
Corporate Group Facility is outstanding and unpaid and so
long as the Commitments or the commitments under the FI
Credit Agreement have not been terminated.
SECTION 10.3. Successors and Assigns;
Participation; Purchasing Banks. (a) This Agreement shall
be binding upon and inure to the benefit of FI, FCX, the
Banks, the Agents, the FI Trustee and all future holders of
the Promissory Notes, and their respective successors and
assigns, except that neither FI or FCX may assign, delegate
or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Bank.
Any Bank may at any time pledge or assign all or any portion
of its rights under this Agreement and the Promissory Notes
issued to it to a Federal Reserve Bank to secure extensions
of credit by such Federal Reserve Bank to such Bank;
provided that no such pledge or assignment shall release a
Bank from any of its obligations hereunder or substitute any
such Federal Reserve Bank for such Bank as a party hereto.
(b) Any Bank may, in accordance with applicable
law, at any time sell to one or more banks or other entities
("Participants") participating interests in all or a portion
of any Loan owing to such Bank, any Promissory Note held by
such Bank, any Commitment of such Bank or any other interest
of such Bank hereunder. In the event of any such sale by a
Bank of participating interests to a Participant, such
Bank's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof, such
Bank shall remain the holder of any such Promissory Note for
all purposes under this Agreement and the Borrowers and the
Agents shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations
under this Agreement. The Borrowers agree that if amounts
outstanding under this Agreement and the Promissory Notes
are due and unpaid, or shall have been declared due or shall
have become due and payable upon the occurrence of an Event
of Default, each Participant shall be deemed to have the
right of setoff in respect of its participating interest in
amounts owing under this Agreement and any Promissory Note
to the same extent as if the amount of its participating
interest were owing directly to it as a Bank under this
Agreement or any Promissory Note; provided that such right
of setoff shall be subject to the obligation of such
Participant to share with the Banks, and the Banks agree to
share with such Participant, as provided in Section 3.15.
The Borrowers also agree that each Participant shall be
entitled to the benefits of Sections 3.11, 3.12, 3.13, 3.15,
3.17, 3.18 and 10.5 with respect to its participation in the
Commitments and the Loans outstanding from time to time as
if it were a Bank; provided that no Participant shall be
entitled to receive any greater payment pursuant to such
Sections than the transferor Bank would have been entitled
to receive in respect of the amount of the participation
transferred by such transferor Bank to such Participant
unless such participation shall have been made at a time
when the circumstances giving rise to such greater payment
did not exist; and provided that the voting rights of any
Participant would be limited to amendments, modifications or
waivers decreasing any fees payable hereunder or the amount
of principal of or the rate at which interest is payable on
the Loans, extending any scheduled principal payment date or
date fixed for the payment of interest on the Loans,
changing or extending the Commitments or release of all or
substantially all the collateral for the Loans.
(c) Any Bank may, in accordance with applicable
law and subject to Section 10.3(h), at any time assign by
novation all or any part of its rights and obligations under
this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it and the Promissory
Notes held by it) (I) to any Bank or any Affiliate thereof,
without the Borrowers' consent, or (II) to one or more
additional banks or financial institutions (any such entity
referred to in clause (I) or (II) being a "Purchasing Bank")
with the consent of the Administrative Agent and the
Borrowers, such consent not to be unreasonably withheld (it
being understood that the Borrowers may withhold their
consent to a Purchasing Bank (i) which is not a commercial
bank or savings and loan institution or (ii) which would, as
of the effective date of such assignment, be entitled to
claim compensation under Section 3.11 which the transferor
Bank would not be entitled to claim as of such date),
pursuant to a Commitment Transfer Supplement in the form of
Exhibit D, executed by such Purchasing Bank and such
transferor Bank (and, in the case of a Purchasing Bank that
is not then a Bank or an Affiliate thereof, by the Borrowers
and the Administrative Agent), and delivered for its
recording in the Register to the Administrative Agent,
together with the Promissory Notes subject to such
assignment, the registration and processing fee required by
Section 10.3(e) and an Administrative Questionnaire for the
Purchasing Bank if it is not already a Bank. Assignments
shall be by novation only and a proportionate interest in
the Loans and Commitments to both FI and FCX (and the
related Promissory Notes) must be assigned. Upon such
execution, delivery and recording (and, if required, consent
of the Borrowers and the Administrative Agent), from and
after the Transfer Effective Date determined pursuant to
such Commitment Transfer Supplement (which shall be at least
five days after the execution and delivery thereof), (x) the
Purchasing Bank thereunder shall (if not already a party
hereto) be a party hereto and have the rights and
obligations of a Bank hereunder with a Commitment as set
forth in such Commitment Transfer Supplement, and (y) the
transferor Bank thereunder shall, to the extent assigned by
such Commitment Transfer Supplement, be released from its
obligations under this Agreement (and, in the case of a
Commitment Transfer Supplement covering all or the remaining
portion of a transferor Bank's rights and obligations under
this Agreement, such transferor Bank shall cease to be a
party hereto). Such Commitment Transfer Supplement shall be
deemed to amend this Agreement (including Schedule II
hereto) to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Bank (if not already
a party hereto) and the resulting adjustment of Applicable
Percentages arising from the purchase by such Purchasing
Bank of all or a portion of the rights and obligations of
such transferor Bank under this Agreement and the Promissory
Notes. On or prior to the Transfer Effective Date
determined pursuant to such Commitment Transfer Supplement,
each Borrower, at its own expense, shall execute and deliver
to the Administrative Agent in exchange for the surrendered
Promissory Note a new Promissory Note to the order of such
Purchasing Bank in an amount equal to the Commitment assumed
by it pursuant to such Commitment Transfer Supplement and,
if the transferor Bank has retained a Commitment hereunder,
a new Promissory Note to the order of the transferor Bank in
an amount equal to the Commitment retained by it hereunder.
Such new Promissory Notes shall be dated the Closing Date
and shall otherwise be in the form of the Promissory Notes
replaced thereby. The Promissory Notes surrendered by the
transferor Bank shall be returned by the Administrative
Agent to the Borrowers marked "canceled".
(d) The Administrative Agent, acting solely for
this purpose as an agent of the Borrowers, shall maintain at
one of its offices in The City of New York a copy of each
Commitment Transfer Supplement delivered to it and a
register (the "Register") for the recordation of the names
and addresses of the Banks and the Commitment of, and
principal amount of the Loans owing to, each Bank from time
to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the parties hereto may
treat each Person whose name is recorded in the Register as
the owner of the Loan recorded therein for all purposes of
this Agreement. The Register shall be available for
inspection by the parties hereto at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer
Supplement executed by a transferor Bank and a Purchasing
Bank (and, in the case of a Purchasing Bank that is not then
a Bank or an affiliate thereof, by the Borrowers and the
Administrative Agent) together with payment to the
Administrative Agent of a registration and processing fee of
$3,500, the Administrative Agent shall (i) promptly accept
such Commitment Transfer Supplement and (ii) on the Transfer
Effective Date determined pursuant thereto record the
information contained therein in the Register and give
notice of such acceptance and recordation to the Banks and
the Borrowers.
(f) Subject to Section 10.15, the Borrowers
authorize each Bank to disclose to any Participant or
Purchasing Bank (each, a "Transferee") and any prospective
Transferee any and all financial and other information in
such Bank's possession concerning the Borrowers and its
Affiliates which has been delivered to such Bank by or on
behalf of the Borrowers pursuant to this Agreement or which
has been delivered to such Bank by or on behalf of the
Borrowers in connection with such Bank's credit evaluation
of the Borrowers and their Affiliates prior to becoming a
party to this Agreement.
(g) If, pursuant to this Section 10.3, any
interest in this Agreement or any Promissory Note is
transferred to any Transferee which is organized under the
laws of any jurisdiction other than the United States or any
State thereof, the transferor Bank shall immediately notify
the Administrative Agent of such transfer, describing the
terms thereof and indicating the identity and country of
residence of each Transferee. Such transferor Bank or
Transferee shall indemnify and hold harmless the Borrowers
and the Administrative Agent from and against any tax,
interest, penalty or other expense that the Borrowers and
the Administrative Agent may incur as a consequence of any
failure to withhold United States taxes applicable because
of any transfer or participation arrangement that is not
fully disclosed to them as required hereunder.
(h) By executing and delivering a Commitment
Transfer Supplement, the transferor Bank thereunder and the
Purchasing Bank thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as
follows: (i) such transferor Bank warrants that it is the
legal and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balance of its Loans, in
each case without giving effect to assignments thereof which
have not become effective, are as set forth in such
Commitment Transfer Supplement, (ii) except as set forth in
(i) above, such transferor Bank makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value
of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the
financial condition of the Borrowers or any Subsidiary or
the performance or observance by the Borrowers or any
Subsidiary of any of its obligations under this Agreement,
any other Loan Document or any other instrument or document
furnished pursuant hereto; (iii) such Purchasing Bank
represents and warrants that it is legally authorized to
enter into such Commitment Transfer Supplement; (iv) such
Purchasing Bank confirms that it has received a copy of this
Agreement, together with copies of the most recent financial
statements, if any, delivered pursuant to Section 5.1 and
such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into such Commitment Transfer Supplement; (v) such
Purchasing Bank will independently and without reliance upon
the Agents, such transferor Bank or any other Bank and based
on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this
Agreement; (vi) such Purchasing Bank appoints and authorizes
the Agents to take such action as agent on its behalf and
the FI Trustee to take such action as FI Trustee on its
behalf and to exercise such respective powers under this
Agreement and the other Loan Documents as are delegated to
the Agents or the FI Trustee, as applicable, by the terms
hereof, together with such powers as are reasonably
incidental thereto; and (vii) such Purchasing Bank agrees
that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
(i) Notwithstanding anything in this Section 10.3
to the contrary, without the prior written consent of the
Administrative Agent, no Bank which is an FI Lender shall
(except as permitted by paragraph (a) of this Section 10.3
regarding assignments to Federal Reserve Banks) make any
such assignment of its interests hereunder unless it shall
also assign, to the same assignee, the same proportion of
its interest in and commitment and loans outstanding under
the FI Credit Agreement.
SECTION 10.4. Expenses of the Banks; Indemnity.
(a) The Borrowers agree, jointly and severally, to pay all
out-of-pocket expenses reasonably incurred by the Agents in
connection with the preparation and administration of this
Agreement, the Promissory Notes and the other Loan Documents
or with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the
transactions hereby contemplated shall be consummated) or
reasonably incurred by the Agents or any Bank in connection
with the enforcement or protection of their rights in
connection with this Agreement and the other Loan Documents
or with the Loans made or the Promissory Notes issued
hereunder (whether through negotiations, legal proceedings
or otherwise), including, but not limited to, the reasonable
fees and disbursements of Cravath, Swaine & Moore, special
counsel for the Agents, and Mochtar, Karuwin & Komar,
special Indonesian counsel to the Agents, and, in connection
with such enforcement or protection, the reasonable fees and
disbursements of other counsel for any Bank. The Borrowers
further jointly and severally agree that they shall
indemnify the Banks, the FI Trustee and the Agents from and
hold them harmless against any documentary taxes,
assessments or charges made by any Governmental Authority by
reason of the execution and delivery of or in connection
with the performance of this Agreement, any of the
Promissory Notes or any of the other Loan Documents.
Further, the Borrowers jointly and severally agree to pay,
and to protect, indemnify and save harmless each Bank, each
Agent, the FI Trustee and each of their respective officers,
directors, shareholders, employees, agents and servants from
and against, any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments,
demands, damages, costs or expenses (including, without
limitation, attorneys' fees and expenses) in connection with
any investigative, administrative or judicial proceeding,
whether or not such Bank or Agent or the FI Trustee shall be
designated a party thereto of any nature arising from or
relating to (i) the execution or delivery of this Agreement
or any other Loan Document or any agreement or instrument
contemplated thereby, the performance by the parties thereto
of their respective obligations thereunder or the
consummation of the transactions contemplated hereby and
thereby (including the Restructuring and the RTZ
Transactions) or (ii) the use of the proceeds of the Loans;
and the Borrowers also jointly and severally agree to pay,
and to protect, indemnify and save harmless each Bank, each
Agent, the FI Trustee and each of their respective officers,
directors, shareholders, employees, agents and servants from
and against, any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments,
demands, damages, costs or expenses (including, without
limitation, attorneys' fees and expenses in connection with
any investigative, administrative or judicial proceeding,
whether or not such Bank or Agent or the FI Trustee shall be
designated a party thereto) of any nature arising from or
relating to any actual or alleged presence or Release of
Hazardous Materials on any property owned or operated by the
Borrowers or any of the Subsidiaries, or any Environmental
Claim related in any way to the Borrowers or the
Subsidiaries or arising from or in connection with the
environmental due diligence summary memorandum referred to
in Section 6.1(a)(xii); provided that any such indemnity
referred to in this sentence shall not, as to any
indemnified Person, be available to the extent that such
losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and
non appealable judgment to have resulted from the gross
negligence or wilful misconduct of such indemnified Person.
If any action, suit or proceeding arising from any of the
foregoing is brought against any Bank, any Agent, the FI
Trustee or other Person indemnified or intended to be
indemnified pursuant to this Section 10.4, the Borrowers, to
the extent and in the manner directed by such indemnified
party, will resist and defend such action, suit or
proceeding or cause the same to be resisted and defended by
counsel designated by the Borrowers (which counsel shall be
satisfactory to such Bank, such Agent, the FI Trustee or
other Person indemnified or intended to be indemnified). If
the Borrowers shall fail to do any act or thing which it has
covenanted to do hereunder or any representation or warranty
on the part of the Borrowers contained in this Agreement
shall be breached, any Bank, the FI Trustee or any Agent may
(but shall not be obligated to) do the same or cause it to
be done or remedy any such breach, and may expend its funds
for such purpose. Any and all amounts so expended by any
Bank, the FI Trustee or any Agent shall be repayable to it
by the Borrowers immediately upon such Bank's, the FI
Trustee's or such Agent's demand therefor.
(b) The provisions of this Section 10.4 shall
remain operative and in full force and effect regardless of
the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby or
thereby, the repayment of any of the Loans or any Promissory
Notes, the invalidity or unenforceability of any term or
provision of this Agreement, any other Loan Document or any
Promissory Note, or any investigation made by or on behalf
of any Bank, the FI Trustee or any Agent. All amounts due
under this Section 10.4 shall be payable on written demand
therefor.
SECTION 10.5. Right of Setoff. If an Event of
Default shall have occurred and be continuing and the Loans
shall have been accelerated or any Bank shall have requested
the Administrative Agent to declare the Loans immediately
due and payable pursuant to Article VII, then each Bank is
hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand,
provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the
credit or the account of either Borrower against any of and
all the obligations of such Borrower now or hereafter
existing under this Agreement and the Promissory Notes held
by such Bank, irrespective of whether or not such Bank shall
have made any demand under this Agreement or such Promissory
Notes and although such obligations may be unmatured. Each
Bank agrees promptly to notify the Borrowers after any such
setoff and application made by such Bank, but the failure to
give such notice shall not affect the validity of such
setoff and application. The rights of each Bank under this
Section 10.5 are in addition to other rights and remedies
(including, without limitation, other rights of setoff)
which such Bank may have.
SECTION 10.6. APPLICABLE LAW. THIS AGREEMENT AND
THE PROMISSORY NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.7. Waivers; Amendments. (a) No
failure or delay of any Bank, any Agent or the FI Trustee in
exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and
remedies of the Banks, the Agents and the FI Trustee
hereunder and under the other documents and agreements
entered into in connection herewith are cumulative and not
exclusive of any rights or remedies which they would other-
wise have. No waiver of any provision of this Agreement or
any Promissory Note or any other such document or agreement
or consent to any departure by FI or FCX therefrom shall in
any event be effective unless the same shall be authorized
as provided in paragraph (b) below, and then such waiver or
consent shall be effective only in the specific instance and
for the purpose for which given. No notice or demand on FI
or FCX in any case shall entitle FI or FCX to any other or
further notice or demand in similar or other circumstances.
Each holder of any of the Promissory Notes shall be bound by
any amendment, modification, waiver or consent authorized as
provided herein, whether or not such Promissory Note shall
have been marked to indicate such amendment, modification,
waiver or consent. To the extent that FI may now or
hereafter be entitled, in any jurisdiction in which judicial
proceedings may at any time be commenced with respect to
this Agreement, to claim for itself or its property, assets
or revenues any immunity (whether by reason of sovereignty
or otherwise) from suit, jurisdiction of any court,
attachment prior to judgment, setoff, execution of a
judgment or from any other legal process or remedy, and to
the extent that there may be attributed to FI such an
immunity (whether or not claimed), FI hereby irrevocably
agrees not to claim and hereby irrevocably waives such
immunity.
(b) Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to
an agreement or agreements in writing entered into by FI,
FCX and the Required Banks; provided, however, that, no such
agreement shall (i) change the principal amount of, or
extend or advance the maturity of or any date for the
payment of any principal of or interest on, any Promissory
Note (including, without limitation, any such payment
pursuant to Section 3.7(b) or paragraph (b), (c) or (d) of
Section 3.9), or waive or excuse any such payment or any
part thereof, or change the rate of interest on any
Promissory Note, without the written consent of each holder
affected thereby, (ii) change or extend the Commitment of
any Bank without the written consent of such Bank, or change
any fees to be paid to any Bank or the Administrative Agent
hereunder without the written consent of such Bank or the
Agent, as applicable, (iii) amend or modify the provisions
of this Section 10.7, Section 3.8, Sections 3.11 through
3.15, Section 10.4 or 10.17 or Article IX or the definition
of "Required Banks", without the written consent of each
Bank, (iv) release the collateral granted as security for
the FI Obligations under the FI Security Documents or the
Collateral granted under the FCX Pledge Agreements (except
as expressly required hereby or thereby), without the
written consent of each Bank or (v) release FCX of its
obligations under Article IX without the written consent of
each Bank; and provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of
any Agent hereunder without the written consent of such
Agent. Each Bank and holder of any Promissory Note shall be
bound by any modification or amendment authorized by this
Section 10.7 regardless of whether its Promissory Notes
shall be marked to make reference thereto, and any consent
by any Bank or holder of a Promissory Note pursuant to this
Section shall bind any Person subsequently acquiring a
Promissory Note from it, whether or not such Promissory Note
shall be so marked.
SECTION 10.8. Severability. In the event any one
or more of the provisions contained in this Agreement or in
the Promissory Notes should be held invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein
or therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotia-
tions to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 10.9. Counterparts. This Agreement may
be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together
shall constitute but one contract, and shall become effec-
tive when copies hereof which, when taken together, bear the
signatures of each of the parties hereto shall be delivered
or mailed to the Administrative Agent, FCX and FI.
SECTION 10.10. Headings. Article and Section
headings and the Table of Contents used herein are for
convenience of reference only and are not to affect the
construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 10.11. Entire Agreement. This Agreement,
the other Loan Documents, the fee letters between the Agents
and the Borrowers and the exhibits and schedules hereto
contain the entire agreement among the parties hereto with
respect to the Loans and the related transactions. Any
previous agreement among the parties with respect to the
subject matter hereof is superseded by this Agreement, such
fee letters and the other Loan Documents. Nothing in this
Agreement or in the other Loan Documents, expressed or
implied, is intended to confer upon any party other than the
parties hereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 10.12. WAIVER OF JURY TRIAL, ETC.
(A) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.12.
(b) Except as prohibited by law, each party
hereto hereby waives any right it may have to claim or
recover in any litigation referred to in paragraph (a) of
this Section 10.12 any special, indirect, exemplary,
punitive or consequential damages or any damages other than,
or in addition to, actual damages.
(c) Each party hereto (i) certifies that no
representative, agent or attorney of any Bank has repre-
sented, expressly or otherwise, that such Bank would not, in
the event of litigation, seek to enforce the foregoing
waivers and (ii) acknowledges that it has been induced to
enter into this Agreement or any other document, as appli-
cable, by, among other things, the mutual waivers and
certifications herein.
SECTION 10.13. Interest Rate Limitation.
Notwithstanding anything herein or in the Promissory Notes
to the contrary, if at any time the interest rate applicable
to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under
applicable law (collectively the "Charges"), as provided for
herein or in any other document executed in connection
herewith, or otherwise contracted for, charged, received,
taken or reserved by any Bank, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by such Bank in
accordance with applicable law, the rate of interest in
respect of such Loan hereunder or payable under the
Promissory Note held by such Bank, together with all Charges
payable to such Bank, shall be limited to the Maximum Rate
and, to the extent lawful, the interest and Charges that
would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section 10.13
shall be cumulated and the interest and Charges payable to
such Bank in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor, until
such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall
have been received by such Bank.
SECTION 10.14. JURISDICTION; CONSENT TO SERVICE
OF PROCESS. (A) EACH OF FCX AND FI HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW
YORK CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO
THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
SHALL AFFECT ANY RIGHT THAT ANY BANK, ANY AGENT OR THE FI
TRUSTEE MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY AGAINST FI OR FCX OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.
(B) FCX AND FI HEREBY IRREVOCABLY AND UNCONDI-
TIONALLY WAIVE, TO THE FULLEST EXTENT THEY MAY LEGALLY AND
EFFECTIVELY DO SO, ANY OBJECTION WHICH THEY MAY NOW OR HERE-
AFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY NEW YORK STATE
OR FEDERAL COURT. EACH OF THE PARTIES HERETO HEREBY IRREVO-
CABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(C) EACH PARTY TO THIS AGREEMENT IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 10.1. NOTHING IN THIS AGREEMENT WILL
AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 10.15. Confidentiality. Each Bank agrees
(which agreement shall survive the termination of this
Agreement) that financial information, information from
FCX's and its Subsidiaries' books and records, information
concerning FCX's and its Subsidiaries' trade secrets and
patents and any other information received from FCX and its
Subsidiaries hereunder shall be treated as confidential by
such Bank, and each Bank agrees to use its best efforts to
ensure that such information is not published, disclosed or
otherwise divulged to anyone other than employees or
officers of such Bank and its counsel and agents; provided
that it is understood that the foregoing shall not apply to:
(i) disclosure made with the prior written author-
ization of a Borrower;
(ii) disclosure of information (other than that
received from the Borrowers and their Subsidiaries
prior to or under this Agreement) already known by, or
in the possession of, such Bank without restrictions
on the disclosure thereof at the time such information
is supplied to such Bank by a Borrower or a Subsidiary
hereunder;
(iii) disclosure of information which is required
by applicable law or to a governmental agency having
supervisory or regulatory authority over any party
hereto;
(iv) disclosure of information in connection with
any suit, action or proceeding in connection with the
enforcement of rights hereunder or in connection with
the transaction contemplated hereby or thereby;
(v) disclosure to any bank (or other financial
institution) which may acquire a participation or
other interest in the Loans or rights of any Bank
hereunder; provided that such bank (or other financial
institution) agrees to maintain any such information
to be received in accordance with the provisions of
this Section 10.15;
(vi) disclosure by any party hereto to any other
party hereto or their counsel or agents;
(vii) disclosure by any party hereto to any entity
or any subsidiary of such an entity which owns,
directly or indirectly, more than 50% of the voting
stock of such party, or to any affiliate and/or direct
or indirect subsidiary of such party; or
(viii) disclosure of information that prior to such
disclosure has become public knowledge through no
violation of this Agreement.
SECTION 10.16. Judgment Currency. The
specification of payment in Dollars and in New York City,
New York, with respect to amounts payable to any Bank (or
Transferee), any Agent or the FI Trustee hereunder and under
the other Loan Documents is of the essence, and Dollars
shall be the currency of account in all events. The payment
obligations of FI or FCX under this Agreement or any other
Loan Document shall not be discharged by an amount paid in
another currency or in another place, whether pursuant to a
judgment or otherwise, to the extent that the amount so paid
on conversion to Dollars and transfer to New York City under
normal banking procedures does not yield the amount of
Dollars in New York City due hereunder. If for the purpose
of obtaining judgment in any court it is necessary to
convert a sum due hereunder in Dollars into another currency
(the "second currency"), the rate of exchange which shall be
applied shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase
Dollars with the second currency on the Business Day next
preceding that on which such judgment is rendered. The
obligation of FI and FCX in respect of any such sum due from
it to any Agent, the FI Trustee or any Bank (or Transferee)
hereunder or under any other Loan Document (an "entitled
person") shall, notwithstanding the rate of exchange
actually applied in rendering such judgment, be discharged
only to the extent that on the Business Day following
receipt by such entitled person of any sum adjudged to be
due hereunder or under any other Loan Document in the second
currency such entitled person may in accordance with normal
banking procedures purchase in the free market and transfer
to New York City Dollars with the amount of the second
currency so adjudged to be due; and FI and FCX hereby agree,
as a separate obligation and notwithstanding any such
judgment, jointly and severally to indemnify such entitled
person against, and to pay such entitled person on demand,
in Dollars in New York City, the difference between the sum
originally due to such entitled person in Dollars and the
amount of Dollars so purchased and transferred.
SECTION 10.17 RTZ Transaction. The Agents and
the Banks acknowledge that the Borrowers have agreed
pursuant to the Implementation Agreement to enter into the
RTZ Transaction, a summary description of which is set forth
in Schedule VII hereto. The Banks and the Borrowers each
agree, as promptly as possible after the Restructuring, to
begin negotiations to agree on mutually satisfactory
documentation to implement the RTZ Transaction, including
the Participation Agreement, the RTZ Loan Agreement, the FI
Intercreditor Agreement, the Final FI Trust Agreement, the
other Final FI Security Documents and other documentation to
be entered into by FI in connection with the foregoing, all
such agreements to be in form and substance satisfactory to
the Agents and each Bank, to FI and to PT-RTZ and RTZ
Lender. The Final FI Security Documents shall include the
Final Surat Kuasa (power of attorney) enabling the FI
Trustee, inter alia, to appoint an operator (which, except
in circumstances to be agreed upon, would be PT-RTZ or an
affiliate thereof) to replace FI as operator in certain
circumstances. Each of the Agents, the Banks and the
Borrowers acknowledge that the Final FI Trust Agreement will
not terminate prior to termination of the Participation
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
P.T. FREEPORT INDONESIA COMPANY,
by /s/ R. Foster Duncan
Name: R. Foster Duncan
Title: Treasurer
1615 Poydras Street
New Orleans, Louisiana 70112
Attention: R. Foster Duncan
Treasurer
Telex: 8109515386
Telephone: 504-582-4628
Telecopy: 504-582-4511
FREEPORT-McMoRan COPPER & GOLD INC.,
by /s/ R. Foster Duncan
Name: R. Foster Duncan
Title: Treasurer
1615 Poydras Street
New Orleans, Louisiana 70112
Attention: R. Foster Duncan
Treasurer
Telex: 8109515386
Telephone: 504-582-4628
Telecopy: 504-582-4511
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION (for purposes of
Article VIII only), as FI Trustee,
by /s/ P.J. Crowley
Name: P.J. Crowley
Title: Vice President
Addresses for Notices:
First Trust of New York, National
Association
100 Wall Street
New York, New York 10004
Telephone: 212-361-2505
Telecopy: 212-809-5459
CHEMICAL BANK, individually and as
FTX Collateral Agent and
Administrative Agent,
by /s/ Ronald Potter
Name:Ronald Potter
Title: Managing Director
DOMESTIC OFFICE AND LIBOR OFFICE:
270 Park Avenue
New York, New York 10017
Attention: Ralph Iskander
Telephone: 212-270-3977
Telecopy: 212-270-4711
with a copy to Stuart Miller
Chemical Bank
270 Park Avenue
New York, New York 10017
Telephone: 212-270-3523
Telecopy: 212-270-2625
with copies to:
Agent Bank Services
140 East 45th Street
New York, New York 10017
Attention: Hilma Gabbidon
Telephone: 212-622-0693
Telex: 353006 ABSCNYK
Telecopy: 212-622-0002
THE CHASE MANHATTAN BANK (National
Association), individually and as
Documentary Agent,
by /s/ Alexander S. Rapetski
Name:Alexander S. Rapetski
Title: Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
One Chase Manhattan Plaza
(60th Floor)
New York, New York 10081
Attention: Nicholas J. Chirekos
Vice President
Telephone: 212-552-2395
Telecopy: 212-552-7773
DOMESTIC OFFICE AND LIBOR OFFICE:
165 Broadway
New York, NY 10006
Attention: Mr. Winston Brown
Telephone: 212-335-4854
Telecopy: 212-608-3081
ADDRESS FOR NOTICES:
165 Broadway
New York, NY 10006
Attention: Mr. Winston Brown
Telephone: 212-335-4854
Telecopy: 212-608-3081
EXHIBIT 4.4
CONFORMED COPY
FCX GUARANTY AGREEMENT
FCX GUARANTY AGREEMENT dated as of July 17, 1995 by
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation
(including its successors, "FCX").
WHEREAS in connection with the spin-off of FCX from
Freeport-McMoRan Inc., a Delaware corporation ("FTX"), each
of FTX and FCX has agreed that it will provide a partial
guaranty of the FMPO Loans, the FMPO Notes and the Circle C
Notes.
NOW THEREFORE, in consideration of the premises and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, FCX agrees as
follows:
ARTICLE I
GUARANTY
SECTION 1.01 Definitions. The following terms, as
used herein, have the following meanings:
"Credit Documents" means (i) the FMPO Credit
Agreement dated as of June 30, 1995 (as the same may be
amended from time to time, the "FMPO Credit Agreement")
among FM Properties Operating Co., a Delaware general
partnership ("FMPO"), FTX, FCX, the banks listed on the
signature pages thereof, Chemical Bank, as administrative
agent thereunder and The Chase Manhattan Bank, as
documentary agent thereunder, (ii) the Second Amended and
Restated Note Agreement dated as of June 30, 1995 (as the
same may be amended from time to time, the "Pel-Tex Note
Agreement") among FMPO, FTX and FCX, as guarantors, Hibernia
National Bank, as agent and Hibernia National Bank and
Chemical Bank, as banks, and any notes issued thereunder
(the "FMPO Notes") and (iii) the Circle C Credit Agreement
dated as of February 6, 1992 between Circle C Land Corp., a
Texas corporation ("Circle C") and Texas Commerce Bank
National Association as amended by six amendments dated June
11, 1992, November 16, 1992, May 5, 1993, September 1, 1993,
February 2, 1994 and July 17, 1995 respectively (as the same
may be further amended from time to time, the "Circle C
Credit Agreement", and any note issued thereunder (each a
"Circle C Note") in each case as amended from time to time.
"FCX Guaranty Limit" means $90,000,000 subject to
reduction pursuant to Section 2.02.
"FMPO Loan" means each Loan made under the FMPO
Credit Agreement.
"FMPO Obligations" means the principal of and
interest on each (i) FMPO Loan, (ii) FMPO Note and (iii)
Circle C Note; provided that in no event shall the aggregate
principal amount of the FMPO Loans exceed $50,000,000, the
aggregate principal amount of the FMPO Notes exceed
$68,000,000 (or any amount thereof once repaid be
reborrowed) or the aggregate principal amount of the Circle
C Notes exceed $40,811,428.
"FTX Basic Guaranty Limit" means $45,000,000 subject
to reduction pursuant to Section 2.02 of the FTX Guaranty
Agreement.
"FTX Excess Guaranty Limit" means $23,811,428
subject to reduction pursuant to Section 2.02 of the FTX
Guaranty Agreement.
"FTX Guaranty" means the guarantee of FTX as set
forth in the FTX Guaranty Agreement dated as of July 17,
1995 by FTX.
"Pro Rata Share" means, as to the FMPO Loans, the
FMPO Notes and the Circle C Notes, the outstanding principal
amount of the FMPO Loans, the FMPO Notes or the Circle C
Notes, as the case may be, as a percentage of the aggregate
outstanding principal amount of the FMPO Loans, the FMPO
Notes and the Circle C Notes.
SECTION 1.02. The Guaranty. Subject to the
provisions of Article II, FCX hereby unconditionally and
irrevocably guarantees as a primary obligor and not merely
as a surety, the due and punctual payment when and as due
(whether at stated maturity, by notice of prepayment, upon
acceleration or otherwise) of the FMPO Obligations, and
subject to Section 2.03, FCX shall forthwith on demand pay
the amount not so paid at the place and in the manner
specified in the respective Credit Document. This Guaranty
is a guaranty of payment when due and not of collection.
FCX hereby waives presentment to, demand of payment from,
notice of intent to accelerate to, notice of acceleration
to, notice of protest and dishonor to, and protest to FMPO
or Circle C of any of the FMPO Obligations, and also waives
notice of acceptance of this Guaranty and notice of protest
for nonpayment.
SECTION 1.03. Guaranty Unconditional. Subject to
the provisions of Article II, the obligations of FCX
hereunder shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by:
(i) any rescission, extension, renewal, settlement,
compromise, waiver or release in respect of any
obligation of FMPO or Circle C under the Credit
Documents, by operation of law or otherwise;
(ii) any modification or amendment of or supplement
to the Credit Documents;
(iii) any guarantee or any release, impairment,
non-perfection or invalidity of any direct or indirect
security for any obligation of FMPO or Circle C under the
Credit Documents;
(iv) any change in the corporate existence,
structure or ownership of FMPO or Circle C, or any
insolvency, bankruptcy, reorganization or other similar
proceeding affecting FMPO or Circle C or their respective
assets or any resulting release or discharge of any
obligation of FMPO or Circle C contained in the Credit
Documents;
(v) the existence of any claim, set-off or other
rights which FCX may have at any time against FMPO or
Circle C, or any other corporation or person, whether in
connection herewith or any unrelated transactions,
provided subject to any subordination agreements relating
to such claims, that nothing herein shall prevent the
assertion of any such claim by separate suit or
compulsory counterclaim;
(vi) any invalidity or unenforceability relating to
or against FMPO or Circle C for any reason of the Credit
Documents, or any provision of applicable law or
regulation purporting to prohibit the payment by FMPO or
Circle C of the FMPO Obligations or any other amount
payable by FMPO or Circle C under the Credit Documents;
(vii) any other act or omission to act or delay of
any kind by FMPO or Circle C, any beneficiary of this
Guaranty or any other corporation or person or any other
circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or
equitable discharge of or defense to FCX's obligations
hereunder or to the FMPO Obligations;
(viii) any failure of any beneficiary of this
Guaranty to assert any claim or demand or to enforce any
right or remedy against FMPO or Circle C under the
provisions of the Credit Documents, the FTX Guaranty, any
other security document, any intercreditor document or
any other loan document; or
(ix) any failure of any beneficiary of this
Guaranty to exercise any right or remedy against any
other guarantor (including any subsidiary) of the FMPO
Obligations.
SECTION 1.04. Discharge Only Upon Payment In Full;
Reinstatement In Certain Circumstances. FCX's obligations
hereunder shall remain in full force and effect until the
earlier of the date on which (x) the commitments under the
Credit Documents shall have terminated and the FMPO
Obligations shall have been indefeasibly paid in full or (y)
indefeasible payments made hereunder with respect to
principal equal to the FCX Guaranty Limit and all
corresponding amounts of interest have likewise been paid.
If at any time any FMPO Obligation is rescinded or must be
otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of FMPO or Circle C or
otherwise, FCX's obligations hereunder with respect to such
payment shall be reinstated as though such payment had been
due but not made at such time.
SECTION 1.05. Waiver by the Guarantor. Subject to
the provisions of Section 2.03, FCX irrevocably waives
acceptance hereof, presentment, demand, protest, notice of
intent to accelerate, notice of acceleration and any notice
not provided for herein, as well as any requirement that at
any time any action be taken by any beneficiary of this
Guaranty, corporation or person against FMPO, Circle C or
any other corporation or person.
SECTION 1.06. Subrogation. Upon making any payment
with respect to FMPO or Circle C hereunder, FCX shall be
subrogated to the rights of the payee against FMPO or Circle
C with respect to such payment; provided that FCX shall not
enforce any payment by way of subrogation until all FMPO
Obligations and all other amounts payable by FMPO or Circle
C under the Credit Documents have been paid in full and all
commitments to lend thereunder have been terminated.
SECTION 1.07. Stay of Acceleration. If
acceleration of the time for payment of any FMPO Obligation
or any other amount payable by FMPO or Circle C under the
Credit Documents is stayed upon the insolvency, bankruptcy
or reorganization of FMPO or Circle C, all such amounts
otherwise subject to acceleration under the terms of the
Credit Documents shall nonetheless be payable by FCX
hereunder as if no such stay was in effect.
ARTICLE II
GUARANTY LIMIT
SECTION 2.01. Guaranty Limit. FCX shall be liable
under this Guaranty Agreement with respect to principal of
the FMPO Obligations for an amount equal to the FCX Guaranty
Limit and at any time the amount to which the holders of the
FMPO Loans, FMPO Notes and Circle C Notes are entitled
hereunder shall be limited to their respective Pro Rata
Shares of the FCX Guaranty Limit, together with interest
accrued and unpaid thereon.
SECTION 2.02. Reduction of Guaranty Limit. Upon
indefeasible payment of any principal amount of the FMPO
Notes, or in the case of FMPO Loans or the Circle C Notes,
the permanent reduction of the commitments with respect
thereto (with corresponding repayment such that principal
amount does not exceed such reduced commitments) thereof,
(i) the FTX Excess Guaranty Limit shall be automatically
reduced by an amount equal to such payment on the FMPO Notes
or reduction in such commitments and (ii) if the FTX Excess
Guaranty has been reduced to zero, the FCX Guaranty Limit
shall be automatically reduced by an amount equal to such
payment or reduction in commitments in excess of the amount
necessary to reduce the FTX Excess Guaranty Limit to zero.
SECTION 2.03. Demand First Made Upon FTX.
Notwithstanding anything herein to the contrary other than
the second to last sentence of this Section 2.03, so long as
no Guarantor Default has occurred and is continuing, no
demand shall be made on FCX hereunder until three business
days after demand for payment has been made under the FTX
Guaranty with respect to an amount payable under the FTX
Basic Guaranty and FTX has failed to make such payment. For
purposes hereof, a Guarantor Default means a default under
subsection 7.1(a), (b), (g) or (h) of the Credit Agreement
dated as of June 30, 1995 among Freeport-McMoRan Resource
Partners, Limited Partnership, FTX, the banks party thereto,
Chemical Bank, as administrative agent and collateral agent
and The Chase Manhattan Bank, as documentary agent or under
subsection 7.1(a), (b), (g) or (h) of the Credit Agreement
dated as of June 30, 1995 among P.T. Indonesia Company, FCX,
the banks party thereto, First Trust, National Association,
as FI Trustee, Chemical Bank as Administrative Agent and as
FCX Collateral Agent, and The Chase Manhattan Bank (National
Association), as Documentary Agent. The foregoing shall not
apply to any amount payable in respect of the principal
amount of the FMPO Obligations which exceeds the then
available amount of the FTX Basic Guaranty Limit. FCX
acknowledges the provisions of Section 2.03 of the FTX
Guaranty.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Corporate and Governmental
Authorization; No Contravention. FCX hereby represents and
warrants to the holders of the FMPO Obligations that the
execution, delivery and performance by FCX of this Guaranty
Agreement are within FCX's corporate powers, have been duly
authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-
laws of FCX or of any agreement, judgment, injunction,
order, decree or other instrument binding upon FCX and will
not cause or result in imposition of any lien on any asset
of FCX.
SECTION 3.02 Binding Effect. This Guaranty
Agreement constitutes a valid and binding agreement of FCX
enforceable in accordance with its terms. This Guaranty
Agreement shall inure to the benefit of present and future
holders of the FMPO Obligations.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01 Governing Law; Submission to
Jurisdiction. This Guaranty Agreement shall be governed by
and construed in accordance with the laws of the State of
New York. FCX hereby submits to the nonexclusive
jurisdiction of the United States District Court for the
Southern District of New York and of any New York State
court sitting in New York City for purposes of all legal
proceedings arising out of or relating to this Guaranty
Agreement. FCX irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in
an inconvenient forum.
SECTION 4.02 Waiver of Jury Trial. FCX hereby
irrevocably waives any and all right to trial by jury in any
legal proceeding arising out of or relating to this Guaranty
Agreement.
SECTION 4.03 No Waiver by Delay. No delay or
omission to exercise any right or power accruing under any
default, omission or failure of performance hereunder shall
impair any such right or power or shall be construed to be a
waiver thereof, but any such right or power may be exercised
from time to time and as often as may be deemed expedient.
SECTION 4.04 Notices. All notices, requests and
other communications shall be in writing (including
facsimile transmission or similar writing) and shall be
mailed or sent by the sending party to: (i) in the case of
FCX, at its address set forth on the signature page hereof
or as otherwise notified to the beneficiaries of this
Guaranty or (ii) in the case of any other party, at its
address provided for in the Credit Documents.
IN WITNESS WHEREOF, FCX has caused this Guaranty
Agreement to be duly executed by R. Foster Duncan,
Treasurer, as of the day and year first above written.
FREEPORT-McMoRan COPPER & GOLD INC.
By: /s/ R. Foster Duncan
Name: R. Foster Duncan
Title: Treasurer
1615 Poydras Street
New Orleans, LA 70112
Attention: R. Foster Duncan
Treasurer
EXHIBIT 11.1
FREEPORT-McMoRan COPPER & GOLD INC.
COMPUTATION OF NET INCOME PER COMMON AND
COMMON EQUIVALENT SHARE
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ -------------------
1995 1994 1995 1994
-------- -------- -------- --------
(In Thousands, Except Per Share Amounts)
Primary:
Net income applicable to
common stock $60,533 $13,463 $145,151 $36,740
======= ======= ======== =======
Average common shares
outstanding 202,592 205,933 204,567 205,692
Common stock equivalents:
Stock options 1,466 - 489 -
------- ------- ------- -------
Common and common equivalent
shares 204,058 205,933 205,056 205,692
======= ======= ======= =======
Net income per common and
common equivalent share $.30 $.07 $.71 $.18
==== ==== ==== ====
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> SEP-30-1995
<CASH> 33,476
<SECURITIES> 0
<RECEIVABLES> 125,094
<ALLOWANCES> 0
<INVENTORY> 383,578
<CURRENT-ASSETS> 662,896
<PP&E> 3,454,488
<DEPRECIATION> 686,889
<TOTAL-ASSETS> 3,512,191
<CURRENT-LIABILITIES> 493,111
<BONDS> 975,641
<COMMON> 20,595
500,007
573,900
<OTHER-SE> 349,736
<TOTAL-LIABILITY-AND-EQUITY> 3,512,191
<SALES> 1,300,087
<TOTAL-REVENUES> 1,300,087
<CGS> 745,948
<TOTAL-COSTS> 745,948
<OTHER-EXPENSES> 13,888
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 29,536
<INCOME-PRETAX> 389,178
<INCOME-TAX> 164,964
<INCOME-CONTINUING> 185,728
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 145,151
<EPS-PRIMARY> .71
<EPS-DILUTED> 0
</TABLE>
