EXHIBIT 4.2
CONFORMED COPY
AMENDMENT dated as of July 15, 1996
(this "Amendment"), to the Credit Agreement
dated as of October 27, 1989 (as amended and
in effect prior to the Effective Date (as
defined below), the "Credit Agreement"),
among P.T. FREEPORT INDONESIA COMPANY, a
limited liability company organized under the
laws of the Republic of Indonesia and also
domesticated in Delaware ("FI"), FREEPORT-
McMoRan COPPER & GOLD INC., a Delaware
corporation ("FCX"), the undersigned
financial institutions (collectively, the
"Banks"), FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, a national banking association,
as trustee under the FI Trust Agreement (in
such capacity, the "FI Trustee") and as
security agent for the Banks (in such
capacity, the "Security Agent") under the FI
Security Documents (as defined in the Credit
Agreement), 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 in the Credit Agreement), 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 Security Agent, the
FCX Collateral Agent and the Documentary
Agent being collectively referred to herein
as the "Agents"). Capitalized terms used
herein and not defined herein shall have the
meanings given such terms in the Credit
Agreement.
Pursuant to the terms of the Credit Agreement, the
FI Obligations are guaranteed by FCX. The guarantee is
secured by the FCX Pledge Agreements. FCX and FI have
requested that the Banks agree to amend the Credit Agreement
in various respects and release the pledge under the FCX
Pledge Agreements and, in connection therewith, terminate
and discharge the FCX Pledge Agreements and, subject to the
consent of all applicable secured parties thereunder, the
FCX Intercreditor Agreement; the Banks have advised FCX and
FI that they are willing to do so, on the terms and subject
to the conditions hereinafter set forth. The parties hereto
accordingly wish to enter into this Amendment to, among
other things, (i) reflect the release of the pledge of the
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Collateral (as defined in the FCX Pledge Agreements),
(ii) terminate and discharge the FCX Pledge Agreements and
the FCX Intercreditor Agreement, (iii) reduce the Commitment
Fees and the Applicable Margin in respect of LIBO Rate Loans
and (iv) effect the other amendments to the Credit Agreement
hereinafter set forth.
Accordingly, FI, FCX, the FI Trustee, the Banks
and the Agents agree as follows:
SECTION 1. Amendments to the Credit Agreement.
Effective as of the Effective Date, the Credit Agreement is
hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby
amended by adding the following defined terms in the
appropriate alphabetical order:
(i) "Additional Infrastructure Assets" means non-
mining assets, other than Block B Assets, transferred,
sold, pledged, encumbered or otherwise disposed of by
FI, in each case in accordance with the terms of this
Agreement, in connection with the Additional
Infrastructure Projects.
(ii) "Additional Infrastructure Basket" has the
meaning assigned to such term in paragraph (y) of
Section 5.2(c).
(iii) "Additional Infrastructure Documents" means
the agreements and other documents (whether now
existing or hereafter entered into) governing the
Additional Infrastructure Transactions.
(iv) "Additional Infrastructure Projects" means
future infrastructure projects of FI involving
Additional Infrastructure Assets that are not otherwise
included in the definitions of New Infrastructure
Projects or Block B Projects.
(v) "Additional Infrastructure Transactions"
means the transactions in connection with the
implementation, financing and operation of the
Additional Infrastructure Projects, as contemplated by
Additional Infrastructure Documents.
(vi) "Block A Operations and Assets" means the
existing and future mining, concentration, processing,
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transportation, delivery and related operations (and
assets used in connection therewith) in respect of FI
Product obtained or provided from Contract Area Block A
(as defined in the Contract of Work).
(vii) "Block B Assets" means assets now owned or
hereafter acquired and utilized in connection with the
development and exploitation of Contract Area Block B
(as defined in the Contract of Work), including with
respect to mining, concentrating, processing,
transportation, delivery and related operations (and
assets used in connection therewith) in respect of FI
Product obtained or provided from Contract Area Block
B, but such term shall not in any event include Block A
Operations and Assets.
(viii) "Block B Conditions" means, with respect to
Block B Debt or Block B Projects including, but not
limited to, transfers or dispositions of Block B Assets
or Liens on Block B Assets relating thereto, the
following conditions:
(X) any such Block B Debt is Non-Recourse
Debt to FI, FCX and the Restricted Subsidiaries
except as to the Block B Assets (and income
relating thereto) and except as otherwise
permitted by Section 5.2(g)(xii); and
(Y) any Block B Project relating to any such
Block B Assets or Block B Debt shall not (1) make
use of any assets that constitute ore that were
originally extracted from or located in Contract
Area Block A or (2) unless Banks holding 51% of
the Commitments otherwise consent in writing, make
any other use of the Block A Operations and
Assets; provided however that such Bank consent
shall not be required with respect to any such use
of Block A Operations and Assets relating solely
to (i) shipping, (ii) storage or warehouse
facilities that are not used for storage of FI
Product, (iii) emergency-related uses, (iv) the
administration or management of Contract Area
Block A or (v) infrastructure projects involving
Contract Area Block A, which use, either in cases
requiring the consent of Banks holding 51% of the
Commitments or in cases involving clauses (i)
through (v) above, has been approved in writing by
the Administrative Agent as not, in the sole
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discretion of the Administrative Agent, impairing
or adversely affecting the FI Collateral and
Rights relating to the Block A Operations and
Assets (and in cases requiring the consent of
Banks holding 51% of the Commitments or in cases
involving clauses (i) through (v) above, the
Administrative Agent shall have received an
opinion of counsel to FI reasonably satisfactory
to the Administrative Agent to such effect and as
to the non-recourse nature of the Block B Debt);
provided further, that (x) temporary, de minimis
usage of Block A Operations and Assets that would
not in any way adversely affect the development,
exploitation or operations relating to Block A
Operations and Assets or the FI Collateral and
Rights and (y) usage of Block A Operations and
Assets that FI has reasonably determined to be
surplus (i.e., not required for the scheduled
production of year-end 1994 10-K ore reserves
referred to on Schedule VII) shall be permitted
without the approval of the Administrative Agent
or the Banks. Notwithstanding the foregoing, it
is understood that any usage by FCX, FI and any
Restricted Subsidiary of non-mining assets in
connection with any Block B Project shall be
permissible without the consent of the
Administrative Agent or the Banks so long as such
usage would not in any way adversely affect the
scheduled production of year-end 1994 10-K ore
reserves or the FI Collateral and Rights and so
long as FCX, FI or such Restricted Subsidiary has
determined that such usage is in its best
interest.
(ix) "Block B Debt" means Debt incurred for the
purpose of developing or exploiting Contract Area
Block B or acquiring or financing Block B Assets.
(x) "Block B Project" means any project or
transaction, including but not limited to any joint
venture, investment, sale, transfer or leasing of
assets, sale leaseback transaction or financing, which
involves the development or exploitation of Contract
Area Block B or the acquisition, financing or
disposition of Block B Assets, and shall include all
contracts and agreements relating to any such project
or transaction.
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(xi) "July 1996 CDF Amendment" shall mean the
amendment dated as of July 15, 1996 to the FCX Credit
Agreement.
(xii) "July 1996 FI Amendment" shall mean the
amendment dated as of July 15, 1996 to this Agreement.
(xiii) "New Infrastructure Assets" means non-mining
assets transferred, sold, pledged, encumbered or
otherwise disposed of by FI, in each case in accordance
with the terms of this Agreement, in connection with
the New Infrastructure Projects.
(xiv) "New Infrastructure Documents" means the
agreements and other documents (whether now existing or
hereinafter entered into) governing the New
Infrastructure Transactions.
(xv) "New Infrastructure Projects" means the
infrastructure projects of FI involving New
Infrastructure Assets relating to waste water
facilities, the limestone joint venture, the coal power
plant, the cattle joint venture and the G-III aircraft,
each as generally described on Schedule III to the July
1996 FI Amendment.
(xvi) "New Infrastructure Transactions" means the
transactions in connection with the implementation,
financing and operation of the New Infrastructure
Projects, as contemplated by New Infrastructure
Documents.
(xvii) "1995 Form 10-K" has the meaning assigned
to such term in Section 4.1(e).
(xviii) "Non-Recourse Debt" means, with respect to
any Person and its assets, Debt the obligees of which
will not have, directly or indirectly, recourse
(including by way of any Guarantee or other
undertaking, agreement or instrument that would
constitute Debt) for repayment of the principal,
premium (if any), and interest on such Debt or any
fees, indemnities, expense reimbursements or other
amounts of whatever nature accrued or payable in
connection with such Debt against any assets of such
Person other than pursuant to any pledge of specified
assets of such Person.
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(b) Section 1.1 of the Credit Agreement is hereby
further amended by substituting the following modified
defined terms for the equivalent defined terms that
presently appear in such Section:
(i) "FCX Credit Agreement Total Commitment" means
$450,000,000, the committed amount under the FCX Credit
Agreement, as the same may be permanently terminated or
reduced from time to time.
(ii) "Loan Documents" means the Amendment
Agreement, the Corporate Group Facilities, the
Corporate Group Notes, 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.
(iii) "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, the New Infrastructure Transactions and
the Additional Infrastructure Transactions, (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 or their business, (d) permitted transfers of
assets from FCX or FI to a Restricted Subsidiary or
from a Restricted Subsidiary to FCX or FI 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, (j) the granting of the RTZ Interests to
PT-RTZ as contemplated by the Participation Agreement
and (k) sales or other dispositions of Block B Assets
in transactions satisfying the Block B Conditions.
(iv) "RTZ Closing Date" has the meaning assigned
to such term in Section 6.1(c) of the FCX Credit
Agreement.
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(v) "Specified Documents" mean the Airfast
Documents, the ALatieF-FI Documents, the Caterpillar
Documents, the PFT Documents, the P&O Documents, the
New Infrastructure Documents and the Additional
Infrastructure Documents.
(vi) "Specified Obligations" mean the Airfast
Obligations, the ALatieF-FI Obligations, the
Caterpillar Obligations, the PFT Obligations, the P&O
Obligations and all obligations of FCX, FI or any
Restricted Subsidiary (including, without limitation,
as appropriate, in respect of take-or-pay contracts and
Capitalized Lease Obligations) relating to the New
Infrastructure Projects and the Additional
Infrastructure Projects.
(vii) "Specified Transactions" mean the Airfast
Transaction, the ALatieF-FI Transaction, the
Caterpillar Transaction, the PFT Transaction, the P&O
Transaction, the New Infrastructure Transactions and
the Additional Infrastructure Transactions.
(c) Section 1.1 of the Credit Agreement is hereby
further amended by deleting the following defined terms that
presently appear in such Section:
(i) "1994 Form 10-K";
(ii) "Waste Water";
(iii) "Waste Water Assets";
(iv) "Waste Water Documents";
(v) "Waste Water Obligations"; and
(vi) "Waste Water Transaction".
(d) Section 1.1 of the Credit Agreement is hereby
further amended by:
(i) amending the definition of "Applicable Margin"
by substituting a revised Schedule I to the Credit
Agreement that shall read in its entirety as set forth
on Schedule I to this Amendment; and
(ii) amending the definition of "Nonrestricted
Subsidiaries" by adding the following words immediately
after the words "FCX may (x)" in the last sentence of
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such definition:
"at any time other than when a Default or an
Event of Default has occurred and is continuing or
would exist after giving effect to such
declaration,".
(e) Section 4.1(b) of the Credit Agreement is hereby
amended by deleting from clause (ii) (C) the words "the FCX
Pledge Agreements and".
(f) Section 4.1(c) of the Credit Agreement is hereby
amended to read in its entirety as follows:
"(c) Governmental Approvals. (i) Except for
those consents, approvals and registrations of, or
other actions by, any Governmental Authority
(individually, a "Requisite Approval" and collectively,
the "Requisite Approvals") which have been obtained and
are in full force and effect, no Requisite Approval is
or will be required in connection with (A) the
execution, delivery and performance by FI or FCX, as
appropriate, of this Agreement or any other Loan
Document to which it is, or is to be, a party (other
than, in the case of FI, performance related to
borrowings under the FCX Credit Agreement and the
promissory notes of FI issued thereunder) or (B) the
borrowings hereunder by FI.
(ii) 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 FCX or FI, 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.".
(g) Section 4.1(e) of the Credit Agreement is hereby
amended by:
(i) deleting each reference therein to
"December 31, 1993 and 1994" and substituting in lieu
thereof a reference to "December 31, 1994 and 1995";
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(ii) deleting each reference therein to
"December 31, 1994" and substituting in lieu thereof a
reference to "December 31, 1995";
(iii) deleting the parenthetical "(the '1994 Form
10-K')" and substituting in lieu thereof the
parenthetical "(the '1995 Form 10-K')"; and
(iv) deleting each reference therein to "March 31,
1995" and substituting in lieu thereof a reference to
"March 31, 1996".
(h) Section 4.1(f) of the Credit Agreement is hereby
amended by:
(i) deleting the reference therein to "1994 Form
10-K" and substituting in lieu thereof a reference to
"1995 Form 10-K,"; and
(ii) deleting the words immediately following such
reference to the "1995 Form 10-K" through and including
the words "delivered to the Banks," in such Section.
(i) Section 4.1(g) of the Credit Agreement is hereby
amended by:
(i) adding the following phrase at the beginning
of the second sentence:
"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 FI,";
(ii) adding the words "in the case of FCX, FI and
their Restricted Subsidiaries," immediately after the
word "reserves)," in the first sentence thereof; and
(iii) adding the word "Restricted" immediately
after the words "or the respective" in the first
sentence thereof.
(j) Section 4.1(m) of the Credit Agreement is hereby
amended by adding the words "and, in the case of FI and its
Restricted Subsidiaries, Liens permitted by
Section 5.2(d)(vi)" immediately after the words
"Section 4.1(o)" contained in the parenthetical in the
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second sentence thereof.
(k) Section 4.1(o) of the Credit Agreement is hereby
amended by deleting the second sentence thereof in its
entirety.
(l) Section 5.1(f) of the Credit Agreement is hereby
amended by deleting the word "Subsidiaries" in the second
line thereof and substituting in lieu thereof the words
"ERISA Affiliates".
(m) Section 5.l(h) of the Credit Agreement is hereby
amended by:
(i) deleting paragraph (ii) thereof in its
entirety;
(ii) deleting the symbol "(i)" relating to the
first paragraph thereof and ending such paragraph
immediately following the words "Section 8.1(j)"; and
(iii) adding the words "to Liens expressly
permitted by Section 5.2(d) and" immediately following
the words "subject only".
(n) Section 5.1(k) of the Credit Agreement is hereby
amended by:
(i) adding the words "for the first time" in
clause (ii) thereof immediately prior to the words "be
a Major Concentrate Sales Agreement";
(ii) adding the words "(together with the original
Concentrate Sales Agreement that is the subject of such
amendment, waiver or supplement)" in clause (ii)
thereof immediately prior to the phrase ", in each
case"; and
(iii) adding immediately following the word
"thereof" at the end of clause (ii) thereof a new
clause (iii) that reads in its entirety as follows:
", and (iii) promptly notify the
Administrative Agent and the FI Trustee of any
material default under a Major Concentrate Sales
Agreement of which it has knowledge.".
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(o) Section 5.1(l) of the Credit Agreement is hereby
amended to read as follows:
"(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 or, in
the ordinary course of business and so long as no
Default or Event of Default shall have occurred and be
continuing hereunder, terminate any Concentrate Sales
Agreement, so long as such amendment, waiver or
termination will not materially adversely affect the
business, financial condition or operations of FI or
any rights of the FI Trustee or the Banks. Upon the
request of the Administrative Agent or the FI Trustee,
FI will promptly provide the Administrative Agent or
the FI Trustee, as the case may be, with access to FI's
books, records and offices for the purpose of
permitting the Administrative Agent or the FI Trustee
to inspect and review any amendments, waivers or
supplements to, or terminations of, any Concentrate
Sales Agreement and make copies thereof. If a Default
or Event of Default shall have occurred and be
continuing, upon the request of the Administrative
Agent or the FI Trustee, FI will provide the
Administrative Agent or the FI Trustee, as the case may
be, with copies of any such amendments, waivers,
supplements or terminations. FI shall take all steps
necessary or advisable to protect its rights (and the
rights of the FI Trustee) under the Assigned
Agreements.".
(p) Section 5.1(n) of the Credit Agreement is hereby
amended by deleting the phrases "the FCX Pledge Agreements
and" and "and the FCX Pledge Agreements" from the first
sentence thereof.
(q) Section 5.2(a) of the Credit Agreement is hereby
amended to read in its entirety as follows:
"(a) Conflicting Agreements. FCX, FI and the
Restricted Subsidiaries shall not enter into any
agreement with any Person containing any provision
which would (i) be violated or breached by the
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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,
(ii) prohibit or restrict FI and the other
Restricted Subsidiaries in the payment of
dividends or other distributions or (iii) except
as provided in this clause (iii) and in the second
sentence of this paragraph 5.2(a), prohibit or
restrict the ability of FCX, FI and the other
Restricted Subsidiaries 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), (ix), (x), (xi) and
(xii) of Section 5.2(d) and extensions and
renewals and replacements thereof to the extent
permitted pursuant to Section 5.2(d)(xiii)).
Notwithstanding the limitations set forth in the
immediately preceding sentence, FCX, FI and any
other Restricted Subsidiary and any special
purpose issuing Restricted Subsidiary of FCX may,
in connection with the placement or issuance of
additional Debt (and any refinancings or
replacements of or exchanges for such additional
Debt), enter into agreements containing a covenant
prohibiting or restricting its ability to grant or
create a Lien on any of its assets unless the
holders of such Debt share equally and ratably in
such Lien, provided that (x) such covenant does
not apply to any Lien which is in effect, or which
may be granted, pursuant to any Loan Document
existing on the date of original placement or
issuance of such additional Debt, (y) the
placement or issuance of such additional Debt does
not contravene any other provision of any Loan
Document including, without limitation, Section
5.2(b) of this Agreement and (z) the terms of such
covenant are approved by the Agents.".
(r) Section 5.2(c) of the Credit Agreement is hereby
amended by:
(i) deleting from clause (B)(v) thereof the
reference to "FCX,";
(ii) deleting the words "any Restricted Subsidiary"
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in clause (B)(v) and substituting in lieu thereof the
words "any of its Restricted Subsidiaries";
(iii) adding a new paragraph (v) immediately prior
to paragraph (w) that reads in its entirety as follows:
"(v) FCX, FI and the Restricted Subsidiaries
may transfer and dispose of Block B Assets in
transactions satisfying the Block B Conditions;";
(iv) amending paragraph (y) to read as follows:
"(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 consummate (1) the transfer
of the remaining PFT Assets and ALatieF-FI Assets
as required by the PFT Documents and the
ALatieF-FI Documents, respectively, (2) the
transfer or disposition 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), (3) the transfer or disposition of
New Infrastructure Assets solely in connection
with the New Infrastructure Projects; provided
that, immediately after giving effect to any such
transfer or disposition, the cumulative aggregate
value (based on the higher of fair market or book
value at the time of transfer or encumbrance) of
all New Infrastructure Assets so transferred or
disposed of, or which are pledged or otherwise
encumbered in connection with New Infrastructure
Projects, does not exceed $375,000,000 and (4) the
transfer or disposition of Additional
Infrastructure Assets solely in connection with
Additional Infrastructure Projects; provided that
any such transfer or disposition pursuant to this
clause (y)(4) shall be permitted only to the
extent that, immediately after giving effect to
such transfer or disposition, the cumulative
aggregate fair market value (determined for any
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asset at the time of its transfer or encumbrance)
of all Additional Infrastructure Assets which are
transferred or disposed of pursuant to this
clause (y)(4), or which are pledged or otherwise
encumbered in connection with Additional
Infrastructure Projects, does not exceed an amount
equal to 10% of FCX's total consolidated assets
reflected in its most recent audited consolidated
balance sheet that has been delivered to the Banks
pursuant to Section 5.1(a)(1) or, if such audited
consolidated balance sheet has not yet been
delivered to the Banks, in a certificate of a
Financial Officer of FCX to the Administrative
Agent certifying as to FCX's audited total
consolidated assets (the "Additional
Infrastructure Basket"); provided that, if upon
receipt of the audited financial statements
delivered pursuant to Section 5.1(a)(1), FI shall
have transferred or disposed of Additional
Infrastructure Assets in excess of 10% of FCX's
total consolidated assets as reflected in such
audited financial statements, then within 30 days
of the delivery of such audited financial
statements to the Banks, FI shall arrange for
certain assets to be transferred back to it or for
pledges of certain assets to be released in order
that the condition set forth in the first
provision of this clause (y)(4) shall be
satisfied; and"; and
(v) amending paragraph (z) by deleting the words
"and by Section 5.2(r)" wherever they appear and the
words "pledged pursuant to the FCX Pledge Agreements".
(s) Section 5.2(d) of the Credit Agreement is hereby
amended by:
(i) deleting from paragraph (v) thereof the words
"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";
(ii) amending paragraph (vi) thereof by adding the
following words at the end of such paragraph:
"and Liens on equity or debt investments in Third
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Parties owned by FI or a Restricted Subsidiary
(which Lien in any case is limited to such pledged
equity or debt investment) which secure Debt of
Third Parties or other Third Party obligations (or
Guarantees thereof); provided that such pledged
investments were initially acquired in accordance
with Section 5.2(l);";
(iii) amending paragraph (vii) thereof by:
(A) inserting the words "(other than
Additional Infrastructure Transactions and New
Infrastructure Transactions)" immediately after
the reference to "Specified Transactions" in
paragraph (vii) clause (x); and
(B) amending paragraph (vii) clause (z) to
read in its entirety as follows:
"to the extent permitted by
Section 5.2(g)(vi) pursuant to other sale and
leaseback transactions entered into after the
Fifth Amendment Closing Date.";
(iv) deleting the word "and" at the end of
paragraph (ix), redesignating paragraph (x) as
paragraph (xiii) and adding new paragraphs (x), (xi)
and (xii) to read as follows:
"(x) Liens on New Infrastructure Assets
(which Lien in any such case is limited to such
New Infrastructure Assets) pursuant to Capitalized
Lease Obligations arising under New Infrastructure
Transactions or securing Debt which is Non-
Recourse Debt of FI or a Restricted Subsidiary
except as to such New Infrastructure Assets,
provided that, the cumulative aggregate value
(based on the higher of fair market or book value
at the time of encumbrance or transfer) of all New
Infrastructure Assets which are subject to such
Liens or which have been transferred or disposed
of pursuant to Section 5.2(c)(y)(3) does not
exceed $375,000,000;
(xi) Liens on Additional Infrastructure
Assets (which Lien in any such case is limited to
such Additional Infrastructure Assets) pursuant to
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Capitalized Lease Obligations arising under
Additional Infrastructure Transactions or securing
Debt which is Non-Recourse Debt of FI or a
Restricted Subsidiary except as to such Additional
Infrastructure Assets, provided that, immediately
after any such Lien is granted or incurred, the
cumulative aggregate fair market value (determined
for any asset at the time of its encumbrance or
transfer) of all Additional Infrastructure Assets
which are subject to such Liens or which have been
transferred or disposed of pursuant to
Section 5.2(c)(y)(4) does not exceed the
Additional Infrastructure Basket;
(xii) Liens on Block B Assets securing Block B
Debt provided that such Liens and Block B Debt
satisfy the Block B Conditions;"; and
(v) in redesignated paragraph (xiii) deleting the
reference to "and (ix)" and inserting in place
thereof ", (ix), (x), (xi) and (xii)" and adding,
immediately prior to the period at the end of such
paragraph the following:
"and provided further, however, that any such
extension, renewal or replacement Lien relating to
paragraph (xii) shall also satisfy the Block B
Conditions (it being understood that any use of
the Block A Operations and Assets previously
approved by the Administrative Agent or Banks
holding 51% of the Commitments, as the case may
be, in connection with the predecessor Lien shall
be deemed to have been approved to the same extent
by such Banks for purposes of such extension,
renewal or replacement Xxxx)".
00
(x) Section 5.2(g) of the Credit Agreement is hereby
amended by:
(i) amending paragraph (ii) thereof to read in its
entirety as follows:
"(ii) the Specified Obligations, including ,
without limitation, the Capitalized Lease
Obligations and the take-or-pay contracts with
respect to the PFT Assets, the ALatieF-FI Assets,
the P&O Assets, the Airfast Assets, the New
Infrastructure Assets and the Additional
Infrastructure Assets;";
(ii) deleting from paragraph (vii) thereof the
words ", secured pursuant to the FCX Intercreditor
Agreement by the FCX Pledge Agreements"; and
(iii) deleting the word "and" at the end of
paragraph (ix), redesignating paragraph (x) as
paragraph (xii) and adding new paragraphs (x) and (xi)
to read as follows:
"(x) Non-Recourse Debt of FCX, FI or a
Restricted Subsidiary secured solely by New
Infrastructure Assets or Additional Infrastructure
Assets permitted to be pledged or encumbered under
Section 5.2(d)(x) or Section 5.2(d)(xi),
respectively, and Debt of FI or its Restricted
Subsidiaries secured solely by the pledged equity
or debt investment in applicable Third Parties
permitted to be pledged under Section 5.2(d)(vi);
provided that any unsecured portion of such Debt
is otherwise permitted by this Agreement;
(xi) Block B Debt of FCX, FI or a Restricted
Subsidiary, provided that such Block B Debt
satisfies the Block B Conditions; and".
18
(u) Section 5.2(h) of the Credit Agreement is hereby
amended to read in its entirety as follows:
"(h) Preferred Stock. FCX, FI and the Restricted
Subsidiaries shall not voluntarily redeem any preferred
stock issued by any of them except for common stock of
the issuer (with cash for fractional shares); provided
that FCX shall be permitted to deliver notices of
redemption with respect to all or part of its 7%
Convertible Exchangeable Special Preferred Stock and
its Step-Up Convertible Preferred Stock and to make any
cash redemption to be effected as a consequence
thereof, so long as FCX reasonably believes at the time
of the delivery of any such notice of redemption (based
on the market trading values of the common stock of FCX
or on standby underwriting arrangements with a
nationally recognized underwriter) that substantially
all of such preferred stock will be converted into, or
refinanced with, common stock of FCX on or prior to the
stated redemption date.".
(v) Section 5.2(j) of the Credit Agreement is hereby
amended by:
(i) deleting from the first sentence thereof all
of the words after the phrase "interest in FI" and
inserting a period immediately following such phrase;
and
(ii) deleting from the second sentence thereof the
words ", except for the Liens of the FCX Pledge
Agreements".
(w) Section 5.2(l) of the Credit Agreement is hereby
amended by:
(i) deleting each reference therein to
"$75,000,000" and substituting in lieu thereof a
reference to "$150,000,000";
(ii) deleting the words "consummate the Waste Water
Transaction and"; and
(iii) adding the following immediately after the
last sentence thereof:
"Notwithstanding the foregoing, (i) FCX, FI
19
and their Restricted Subsidiaries may also acquire
debt or equity investments in Third Parties in
consideration for transfers or sales to such Third
Parties, in accordance with and as permitted by
Section 5.2(c), of New Infrastructure Assets,
Additional Infrastructure Assets and Block B
Assets, and such acquisitions will not be included
in the calculation of the $150,000,000 annual
limit provided for above and (ii) FCX, FI and
their Restricted Subsidiaries may agree to
restrictions on, or assignments of, the payment of
dividends, distributions or interest payments
(collectively, "Third Party Distributions") made
in respect of investments in Third Parties made in
accordance with the provisions of Section
5.2(d)(vi), and may agree to subordinate the
payment of such Third Party Distributions to the
payment of interest, dividends, distributions or
other amounts to other investors in or lenders to
such Third Parties, and such agreements will not
be deemed to result in additional investments in
such Third Parties or be taken into account in the
calculation of the $150,000,000 annual limit
provided for above, provided that any such Third
Party Distributions, to the extent so assigned,
are, promptly after being paid or received,
transferred to the assignee thereof.".
(x) Section 5.2(n) of the Credit Agreement is hereby
amended by:
(i) deleting the word "and" at the end of
clause (i) and inserting a comma in lieu thereof;
(ii) deleting the reference in clause (ii) to "FI
Collateral Agent" and substituting in lieu thereof a
reference to "FI Trustee";
(iii) deleting the period at the end of
clause (ii); and
(iv) adding the following new clause (iii)
immediately after clause (ii) that reads in its
entirety as follows:
"and (iii) transfers of Block B Assets in
accordance with Section 5.2(c)(v), transfers of
New Infrastructure Assets in accordance with
20
Section 5.2(c)(y)(3) and transfers of Additional
Infrastructure Assets in accordance with Section
5.2(c)(y)(4).".
(y) Section 5.2(o) of the Credit Agreement is hereby
amended by:
(i) adding the following words immediately after
the symbol (i):
"enter into any New Infrastructure Document
or Additional Infrastructure Document or any
amendment or modification thereto or";
(ii) deleting the word "or" immediately after the
first parenthetical in clause (ii) and substituting a
comma in lieu thereof;
(iii) deleting the words "or the Waste Water
Assets" in clause (iii) thereof and substituting in
lieu thereof the following:
", the New Infrastructure Assets or the
Additional Infrastructure Assets";
(iv) deleting the words "nor shall FCX and FI"
after the number "$125,000,000" in existing
clause (iii)(y) and substituting in lieu thereof the
words "; or (iv)"; and
(v) deleting the word "and" immediately after the
word "collateral)" in such newly designated clause (iv)
and adding at the end of the current text thereof,
immediately prior to the period, the following:
"and the transfer or pledge of New
Infrastructure Assets and Additional
Infrastructure Assets in connection with New
Infrastructure Projects and Additional
Infrastructure Projects, respectively, in each
case to the extent not prohibited by the other
provisions of this Agreement".
(z) Section 5.2(p) of the Credit Agreement is hereby
amended by:
(i) adding the words ", or such Restricted
Subsidiary, as the case may be," immediately after the
third and fourth references in clause (i) to "FI"; and
21
(ii) adding the following sentence at the end of
such Section 5.2(p):
"Notwithstanding the foregoing, (x) FCX, FI
or a Restricted Subsidiary may engage in the
foregoing transactions with a Wholly-Owned
Restricted Subsidiary and (y) a Wholly-Owned
Restricted Subsidiary may engage in the foregoing
transactions with another Wholly-Owned Restricted
Subsidiary.".
(aa) Section 5.2(r) of the Credit Agreement is hereby
amended by deleting such Section in its entirety and
substituting in lieu thereof the words "Intentionally
Omitted".
(bb) Section 5.2 of the Credit Agreement is hereby
amended by adding a new subsection 5.2(t) that reads in its
entirety as follows:
"(t) Block B Projects. None of FCX, FI or any of
their Restricted Subsidiaries shall permit any Block B
Project to utilize any Block A Operations and Assets
unless such Block B Project satisfies the Block B
Conditions.".
(cc) Section 7.1 of the Credit Agreement is hereby
amended by:
(i) deleting the text of paragraph (o) thereof in
its entirety and substituting in lieu thereof the words
"Intentionally Omitted"; and
(ii) deleting the words "or the FCX Pledge
Agreements" immediately before the proviso in the last
paragraph of Section 7.1.
(dd) Section 8.1(j) of the Credit Agreement is hereby
amended by:
(i) deleting the text of clause (ii) thereof and
substituting in lieu thereof the words "[intentionally
omitted]";
(ii) deleting the text of clause (iv)(y) thereof
and substituting in lieu thereof the following:
22
"to allow sales, transfers or other
dispositions, secured financings, capital leases
and sale leaseback transactions and pledges of
assets expressly permitted hereby, including
without limitation, sales, transfers or pledges of
Block B Assets, New Infrastructure Assets and
Additional Infrastructure Assets"; and
(iii) adding the following sentence immediately
after the period at the end of such Section:
"It is understood and agreed that releases in
connection with clauses (iii) and (iv) of this
Section 8.1(j) shall not require any further
consents by the Required Banks.".
(ee) Article VIII of the Credit Agreement is hereby
further amended by deleting each reference to (and the
surrounding text, if such text relates solely to "the FCX
Collateral Agent", "the FCX Pledge Agreements" or "the FCX
Intercreditor Agreement"): (i) "the FCX Collateral Agent",
(ii) "the FCX Pledge Agreements" and (iii) the "FCX
Intercreditor Agreement" therein.
(ff) Section 10.7 of the Credit Agreement is hereby
amended by deleting from clause (iv) of paragraph (b)
thereof the words "or the Collateral granted under the FCX
Pledge Agreements".
(gg) Section 10.17 of the Credit Agreement is hereby
amended by designating the existing text as paragraph (a)
and adding a new paragraph (b) to read as follows:
"(b) Notwithstanding anything to the contrary in
this Agreement, in the event the RTZ Transaction is for
any reason abandoned or terminated prior to the RTZ
Closing Date, the Agents and the Banks will, at the
request of FCX and FI, promptly negotiate and agree on
mutually satisfactory documentation, including
amendments to the FI Trust Agreement and other FI
Security Documents, to provide for the transfer of the
Contract of Work to the FI Trustee to be held pursuant
to the FI Trust Agreement and to provide the Agents and
the Banks with substantially the same rights and
benefits in respect of the Contract of Work as so
transferred (subject to substantially the same
limitations), in each case, in substantially the same
manner as contemplated by the proposed amendments to
the FI Security Documents anticipated to be entered
23
into pursuant to paragraph (a) of this Section, as the
same exist in draft form as of the date of the July
1996 FI Amendment (subject to the approval of the Banks
in accordance with the terms of the RTZ Amendment).".
SECTION 2. Representations and Warranties. Each
of FCX and FI represents and warrants to the Administrative
Agent and to each of the Banks that:
(a) Each of this Amendment, the Credit Agreement
as amended by this Amendment (the "Amended Credit
Agreement") and the Promissory Notes executed in
connection with this Amendment has been duly
authorized, executed and delivered by it and
constitutes its legal, valid and binding obligations
enforceable in accordance with their terms, except as
such enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally, or by general
principles of equity (whether enforcement is sought by
proceedings in equity or at law).
(b) The representations and warranties set forth
in Article IV of the Amended Credit Agreement and in
the other Loan Documents are true and correct in all
material respects with the same effect as if made on
the date hereof, except to the extent such
representations and warranties expressly relate to an
earlier date, in which case they were true and correct
in all material respects on and as of such earlier
date.
(c) As of the date hereof, no Default or Event of
Default has occurred and is continuing under the
Amended Credit Agreement.
SECTION 3. Conditions to Effectiveness. This
Amendment shall become effective on the date that each of
the following conditions shall have been satisfied (such
date of effectiveness being the "Effective Date"):
(a) Receipt by Cravath, Swaine & Xxxxx, special
counsel for the Agents, of executed counterparts of
this Amendment which, when taken together, bear the
signatures of FI, FCX, the FI Trustee, the Agents and
each Bank.
24
(b) The representations and warranties on the
part of FCX and FI contained in Article IV of the
Credit Agreement shall be true and correct in all
material respects at and as of the Effective Date as
though made on and as of such date.
(c) FCX and FI shall be in compliance with all
the terms and provisions set forth in this Amendment
and the Credit Agreement to be observed or performed on
their part, and as of the Effective Date, no Event of
Default nor any event which upon notice or lapse of
time or both would constitute such an Event of Default
shall have occurred and be continuing.
(d) All legal matters incident to this Amendment
shall be satisfactory to the Banks, the Administrative
Agent and Cravath, Swaine & Xxxxx, special counsel for
the Agents.
(e) FI shall have delivered to the Administrative
Agent a duly executed Promissory Note in favor of each
Bank in the amount of such Bank's Commitment after
giving effect to this Amendment, substantially in the
form of Exhibit A to this Amendment.
(f) The Administrative Agent shall have received
all fees and other amounts due and payable on or prior
to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by FCX or FI
hereunder or under any Loan Document.
(g) FCX and FI shall have received the written
consent of TCB, the Required FM Lenders, the Required
FI Lenders, the Required CDF Lenders and the Required
Pel-Tex Lenders (each as defined in the FCX
Intercreditor Agreement in effect prior to the
Effective Date) in connection with the consummation of
the transactions contemplated by Section 8 hereof.
(h) The Administrative Agent shall have received
on behalf of itself and the Banks a favorable written
opinion of (i) Jones, Walker, Waechter, Poitevent,
Carrere & Xxxxxxx, counsel for FCX and FI, (ii) Xxx
Xxxxxxxxx, Nugroho, Reksodiputro, special Indonesian
counsel for FI, (iii) Xxxxx X. Xxxxxx, general counsel
of FCX and (iv) Mochtar, Karuwin & Xxxxx, special
Indonesian counsel for the Agents, each dated the
Effective Date and addressed to the Administrative
25
Agent and the Banks, each in the form approved by the
Agents and Cravath, Swaine & Xxxxx, special counsel for
the Agents. FCX and FI and, in the case of (iv) above,
the Agents, hereby instruct such counsel to deliver
such opinions.
(i) The Administrative Agent shall have received
(i) (a) as to FI, signed Certificates of the Secretary
of State of the State of Delaware, dated reasonably
near the Effective Date, listing the Certificate of
Domestication and Certificate of Incorporation of FI
(as certified by the Secretary or Assistant Secretary
of FI in the certificate described in clause (ii)
below) as being 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 incorporated and in
good standing in the State of Delaware and has paid all
franchise taxes required by law to be paid by FI to the
date of his Certificate and (b) as to FCX, signed
Certificates of the Secretary of State of the State of
Delaware, dated reasonably near the Effective Date,
listing the Certificate of Incorporation of FCX (as
certified by the Secretary or Assistant Secretary of
FCX in the certificate described in clause (ii) below)
as being on file in his office and stating that such
document is the only charter document of FCX on file in
his office, that FCX is duly incorporated and in good
standing in the State of Delaware and has paid all
franchise taxes required by law to be paid by FCX to
the date of his Certificate; (ii) a certificate of the
Secretary or Assistant Secretary of FCX and FI dated
the Effective Date and certifying (A) that there have
not been any amendments since July 17, 1995 to any of
(X) (a) the Certificate of Domestication of FI, (b) the
Indonesian Articles of Association of FI or (c) the
Certificate of Incorporation and By-Laws of FCX, as
such documents are described in paragraphs 6(a)(i),
(iii) and (vii), respectively, of the Fifth Amendment
dated as of July 17, 1995 to the Credit Agreement (the
"FI Fifth Amendment") and delivered to the Banks in
connection therewith or (Y) the Certificate of
Incorporation of FI as described in clause (i)(a) above
or, if any of such documents have been amended since
the FI Fifth Amendment, attaching a true and complete
copy of such amendments, (B) that attached thereto is a
true and complete copy of resolutions duly adopted by
the Board of Directors of FCX and FI, and in the case
of FI, concurred in by the Board of Commissioners,
authorizing the execution, delivery and performance of
26
this Amendment, the Amended Credit Agreement, the
Promissory Notes executed and delivered in connection
with this Amendment, any amendments to the FI Security
Documents that may be required in connection with the
FI Funding Date, the FI Security Documents as amended
by such amendments and the other Loan Documents and the
borrowings under the Amended Credit Agreement, and that
such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that
neither the certificate of incorporation of FCX nor the
certificate of incorporation or domestication of FI has
been amended since the date of the last amendment
thereto shown on each Certificate of the Secretary of
State of the State of Delaware furnished pursuant to
clause (i)(a) or (i)(b) above, as the case may be, and
(D) as to the incumbency and specimen signature of each
officer executing this Amendment or any document
delivered in connection herewith on behalf of FCX and
FI; (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 & Xxxxx, counsel for the
Agents, may reasonably request.
(j) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by a
Financial Officer of FCX and FI, confirming compliance
with the conditions precedent set forth in
paragraphs (i) and (iii) of Section 6.1 of the Credit
Agreement.
(k) FI and FCX shall have received all Requisite
Approvals (as defined in Section 4.1(c)(i) of the
Credit Agreement as amended by this Amendment),
including without limitation the Requisite Approval of
the Bank of Indonesia, required in connection with the
execution and delivery of this Amendment and the
Promissory Notes executed in connection herewith and
the performance of this Amendment, such Promissory
Notes, the Credit Agreement as amended by this
Amendment and the transactions contemplated hereby or
thereby. All such Requisite Approvals, including any
conditions imposed thereby, shall be in form and
substance acceptable to the Agents and Cravath, Swaine
& Xxxxx, special counsel for the Agents. No action
shall have been taken by any Governmental Authority
which restrains or prevents or seeks to restrain or
prevent, or imposes or seeks to impose materially
27
adverse conditions upon the execution and delivery of
this Amendment and the Promissory Notes executed in
connection herewith or the performance of this
Amendment, such Promissory Notes, the Credit Agreement
as amended by this Amendment and the transactions
contemplated hereby or thereby.
SECTION 4. Reallocation of the Banks' Commitments
under the Credit Agreement. (a) It is hereby acknowledged
that, pursuant to the terms of this Amendment, the Total
Commitment under the Credit Agreement is not being changed
but the allocations of the Banks' commitments are being
changed (the "Commitment Reallocation"), effective as of the
Effective Date. The Commitment Reallocation will be
implemented through the increase of the Commitments of one
or more of the Banks (each such Bank that is willing to
increase its Commitment hereunder being an "Increasing
Bank"), the decrease of the Commitments of one or more of
the Banks (each such Bank that is willing to reduce its
Commitment hereunder being a "Reducing Bank") and the
continuation of the amount of the Commitments of one or more
Banks (each such bank whose Commitment is not changing, a
"Non-Changing Bank"). If agreement is reached on or prior
to the Effective Date with any Increasing Banks or Reducing
Banks as to a commitment increase or a commitment reduction,
as the case may be, the Commitments of such Increasing
Banks, such Reducing Banks and the Non-Changing Banks shall
be, as of the Effective Date, the amounts set forth in
Schedule II to this Amendment; provided that each Bank shall
have delivered to the Administrative Agent within 30
Business Days of the Effective Date, its existing Promissory
Note of FI issued under the Credit Agreement as in effect
prior to the Effective Date. The Administrative Agent, upon
receipt of such Promissory Notes from each Bank, shall
promptly deliver such Promissory Notes to FI.
(b) On the Effective Date, the Administrative
Agent shall record in the Register the relevant information
with respect to each Increasing Bank and each Reducing Bank.
Each Increasing Bank shall, before 2:00 P.M. (New York City
time) on the Effective Date, make available to the
Administrative Agent in New York, New York, in immediately
available funds, an amount equal to the excess of (i) such
Increasing Bank's ratable portion of the borrowings then
outstanding (calculated based on its Commitment as a
percentage of the Total Commitments outstanding after giving
28
effect to the Commitment Reallocation) over (ii) such
Increasing Bank's pro rata share of the borrowings then
outstanding (calculated based on its Commitment (without
giving effect to the Commitment Reallocation) as a
percentage of the Total Commitments (without giving effect
to the Commitment Reallocation). After the Administrative
Agent's receipt of such funds from each such Increasing
Bank, the Administrative Agent will promptly thereafter
cause to be distributed like funds to the Reducing Banks for
their account in an amount to each Reducing Bank such that
the aggregate amount of the outstanding borrowings owing to
each Reducing Bank after giving effect to such distribution
equals such Reducing Bank's pro rata share of the borrowings
then outstanding (calculated based on its Commitment as a
percentage of the aggregate Commitments outstanding after
giving effect to the Commitment Reallocation). Pursuant to
Section 3.13 of the Credit Agreement, FI shall pay any
losses any Bank may sustain or incur as a consequence of any
Breakage Event that may occur in connection with or as a
result of the transactions contemplated by this Amendment.
Within one Business Day prior to the Effective Date, FI, at
its own expense, shall execute and deliver to the
Administrative Agent Promissory Notes payable to the order
of each Bank, dated as of July 17, 1995, in a principal
amount equal to such Bank's Commitment after giving effect
to the Commitment Reallocation, substantially in the form of
Exhibit A to this Amendment. The Administrative Agent, upon
receipt of such Promissory Notes from FI, shall promptly
deliver such Promissory Notes to the Banks.
SECTION 5. Counterparts. This Amendment may be
executed in multiple counterparts, each of which shall
constitute an original, and all of which when taken together
shall constitute but one instrument.
SECTION 6. Limited Effect of Amendment.
Section 1 hereof constitutes an amendment of the Credit
Agreement effective as of the Effective Date. Except as,
and until, expressly amended by such Section as of the
Effective Date, the Credit Agreement shall continue in full
force and effect in accordance with the provisions thereof
as in effect prior to the Effective Date. Except as
expressly set forth herein, this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver
of, or otherwise affect the rights and remedies of the Banks
and the Agents under the Credit Agreement, nor alter,
modify, amend or in any way affect any of the terms,
29
conditions, obligations, covenants or agreements contained
in the Credit Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force
and effect. This Amendment shall apply and be effective
only with respect to the provisions of the Credit Agreement
specifically referred to in Section 1 hereof. As used in
the Credit Agreement, the terms "Agreement", "herein",
"hereinafter", "hereunder", "hereto" and words of similar
import shall mean, from and after the date hereof, the
Credit Agreement as amended by this Amendment.
SECTION 7. Receipt of Documents and Consent
thereto. Each Bank acknowledges receipt of the Credit
Agreement and each amendment thereto, including the
Amendment Agreement dated as of April 1, 1996 relating to
the RTZ Transactions (the "RTZ Amendment"). By
countersigning this Amendment, each Bank confirms its
consent and agreement to, and agrees to be bound by the
terms of the RTZ Amendment.
SECTION 8. Termination of FCX Pledge Agreements
and FCX Intercreditor Agreement. Pursuant to Section 4.02
of the FCX Intercreditor Agreement, effective as of the
Effective Date, each of the FCX Pledge Agreements and the
FCX Intercreditor Agreement shall be terminated and
discharged and all security interests granted under the FCX
Pledge Agreements shall be deemed automatically and
permanently released and discharged; provided that all
protections, exculpations and indemnities provided to
Chemical Bank in its capacity as FCX Collateral Agent under
the Credit Agreement (including without limitation under
Article VIII and Section 10.4 thereof), the FCX Pledge
Agreements and the FCX Intercreditor Agreement (including
without limitation under Section 14 and Section 2.03,
respectively, thereof) shall survive the Effective Date, the
termination and discharge of each of the FCX Pledge
Agreements and the FCX Intercreditor Agreement and release
of the security interests under the FCX Pledge Agreements.
Chemical Bank in its capacity as Collateral Agent (as
defined in the FCX Pledge Agreements) shall execute and
deliver such instruments as FCX shall reasonably request and
shall deliver to FCX any and all Pledged Securities (as
defined in the FCX Pledge Agreements) and any and all
certificates or other instruments or documents representing
30
the Collateral (as defined in the FCX Pledge Agreements)
that were delivered to it pursuant to Section 2 of the FCX
Pledge Agreements, in order to release the Collateral (as
defined in the FCX Pledge Agreements) to FCX as contemplated
by Section 17 of the FCX Pledge Agreements and Section 4.02
of the FCX Intercreditor Agreement. Any such release shall
be at the sole expense of FCX (including without limitation
the reasonable fees, expenses and disbursements of counsel
to Chemical Bank in connection therewith) and without
recourse or liability to Chemical Bank whatsoever. Each
Bank hereby approves the termination and discharge of the
FCX Pledge Agreements and the FCX Intercreditor Agreement
and the release of the security interests created under the
FCX Pledge Agreements and authorizes Chemical Bank in its
capacity as FCX Collateral Agent to release the Collateral
as provided above.
SECTION 9. Calculation of Applicable Margin.
Following the effectiveness of this Amendment as provided in
Section 3, the Applicable Margin shall be deemed to have
accrued (a) prior to the Effective Date, at the rates
provided for in the Credit Agreement before giving effect to
this Amendment, and (b) on and after the Effective Date, at
the rates provided for in the Credit Agreement after giving
effect to this Amendment.
SECTION 10. Authorization by Banks to Security
Agent. Each of the Banks hereby authorizes the Security
Agent (or its successor) to act on its behalf as Security
Agent with full power of substitution to represent it in
connection with the termination of the FCX Indonesian Pledge
Agreement, set out in deed number 57 and dated July 7, 1995.
For the purpose referred to in the preceding sentence, each
Bank hereby authorizes the Security Agent to appear before
any Indonesian notary, to execute and deliver any and all
documents necessary or desirable in connection therewith, to
receive deeds, agreements and other documents and
instruments and to do and perform, without limitation, any
of the foregoing and any other acts or things required,
useful or necessary in connection therewith.
SECTION 11. APPLICABLE LAW. THIS AMENDMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
31
SECTION 12. Expenses. FI and FCX jointly and
severally shall pay all out-of-pocket expenses incurred by
the Agents in connection with the preparation of this
Amendment, including, but not limited to, the reasonable
fees and disbursements of Cravath, Swaine & Xxxxx, special
counsel for the Agents, and Mochtar, Karuwin & Xxxxx,
special Indonesian counsel to the Agents.
32
SECTION 13. Headings. The headings of this
Amendment are for reference only and shall not limit or
otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed by their duly authorized offi-
cers or agents as of the date first above written.
P.T. FREEPORT INDONESIA COMPANY,
by /s/ X. Xxxxxx Xxxxxx
------------------------
Name: X. Xxxxxx Xxxxxx
Title: Treasurer
FREEPORT-McMoRan COPPER & GOLD INC.,
by /s/ X. Xxxxxx Xxxxxx
-------------------------
Name: X. Xxxxxx Xxxxxx
Title: Vice President and
Treasurer
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, as FI Trustee and as
Security Agent,
by /s/ X. X. Xxxxxxx
---------------------
Name: X. X. Xxxxxxx
Title: Vice President
33
CHEMICAL BANK, individually and as
Administrative Agent and
FCX Collateral Agent,
by /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK (National
Association), individually and as
Documentary Agent,
by /s/ Xxxxx X. Xxxxxx
----------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ABN AMRO BANK N.V., HOUSTON AGENCY,
by ABN AMRO NORTH AMERICA,
INC., as Agent for ABN
AMRO BANK N.V.,
by /s/ H. Xxxx Xxxxxx
-------------------------
Name: H. Xxxx Xxxxxx
Title: Vice President and
Director
by /s/ Xxxx Xxxxx
-----------------
Name: Xxxx Xxxxx
Title: Vice President
34
ARAB BANKING CORPORATION (B.S.C.),
by /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED, CAYMAN ISLANDS
BRANCH,
by /s/ Xxxx Xxxxxxxx
---------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
BANK AUSTRIA AKTIENGESELLSCHAFT,
by /s/ Xxxx Xxxxx
-----------------
Name: Xxxx Xxxxx
Title: Assistant Vice
President
by /s/ J. Xxxxxxx Xxxx
----------------------
Name: J. Xxxxxxx Xxxx
Title: Vice President
35
BANK OF AMERICA ILLINOIS,
by /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BANK OF MONTREAL,
by /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
THE BANK OF NOVA SCOTIA,
by /s/ F. C. H. Xxxxx
----------------------
Name: F. C. H. Xxxxx
Title: Senior Manager
Loan Operations
THE BANK OF TOKYO-MITSUBISHI, LTD.
HOUSTON AGENCY,
by /s/ Tsuneo Kumada
----------------------
Name:Tsuneo Kumada
Title:General Manager
BANQUE NATIONALE DE PARIS,
by /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANQUE PARIBAS,
36
by /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Group Vice President
by /s/ Xxxxxx Xxxxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
BARCLAYS BANK PLC,
by /s/ Xxxxx X. Xxxxx
----------------------
Name: Xxxxx X. Xxxxx
Title: Director
CHRISTIANIA BANK OG KREDITKASSE,
by /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
by /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: First Vice President
DAI-ICHI KANGYO BANK, LTD.,
by /s/ Mitsuaki Yamazaki
-------------------------
Name: Mitsuaki Yamazaki
Title: Vice President
37
DEUTSCHE BANK, AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES,
by /s/ Xxxxxxxx X. Xxxx
------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
by /s/ Xxxx X. Xxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxx
Title: Associate
DEUTSCHE BANK, AG, SINGAPORE
BRANCH,
by /s/ Xxxxx Xxx Tiat Xxxx
---------------------------
Name: Xxxxx Xxx Tiat Xxxx
Title: Assistant General
Manager
by /s/ Xxxxxxx Xxx Xxxx Fatt
----------------------------
Name: Xxxxxxx Xxx Xxxx Fatt
Title: Head, Credit
Department
DRESDNER BANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH,
by /s/ P. Xxxxxxx Xxxxxxx
--------------------------
Name: P. Xxxxxxx Xxxxxxx
Title: Vice President
by /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
38
THE FIRST NATIONAL BANK OF CHICAGO,
by /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
FIRST NATIONAL BANK OF COMMERCE,
by /s/ Xxxxxxx X. Xxxx
----------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Vice
President
THE FUJI BANK, LIMITED, HOUSTON
AGENCY,
by /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Joint General Manager
HIBERNIA NATIONAL BANK,
by /s/ Xxxxxx Xxxxx
----------------------
Name: Xxxxxx Xxxxx
Title: Banking Officer
THE INDUSTRIAL BANK OF JAPAN,
LIMITED NEW YORK BRANCH,
by /s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
39
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED,
by /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Joint General Manager
THE MITSUI TRUST AND BANKING
COMPANY, LTD,
by /s/ Xxxxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President and
Manager
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK,
by /s/ Xxxxxx X. XxXxxx
------------------------
Name: Xxxxxx X. XxXxxx
Title: Vice President
NATIONAL WESTMINSTER BANK PLC,
by /s/ Xxx X. Xxxxxxx
----------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
(NASSAU BRANCH),
by /s/ Xxx X. Xxxxxxx
----------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
00
XXX XXXXXXXXXXX XXXX, XXX XXXX
BRANCH,
by /s/ Xxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxx
Title: General Manager
PT BANK NEGARA INDONESIA (PERSERO),
by /s/ Dewa Suthapa
----------------------
Name: Dewa Suthapa
Title: General Manager
P.T. BANK RAKYAT INDONESIA
(PERSERO),
by /s/ Kemas M. Arief
-----------------------
Name: Kemas M. Arief
Title: General Manager
by /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Deputy General
Manager
REPUBLIC NATIONAL BANK OF NEW YORK,
by /s/ X. X. Xxxx
---------------------
Name: X. X. Xxxx
Title: Vice President
41
THE ROYAL BANK OF SCOTLAND PLC,
by /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
and Manager
THE SAKURA BANK, LIMITED, HOUSTON
AGENCY,
by /s/ Xxxxx Xxxx
----------------------
Name: Xxxxx Xxxx
Title: General Manager
THE SANWA BANK LIMITED, DALLAS
AGENCY,
by /s/ Xxxx Xxxxxxxx
---------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY,
by /s/ Xxxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED, HOUSTON
AGENCY,
by /s/ Xxxxxxxxx Xxxx
----------------------
Name: Xxxxxxxxx Xxxx
Title: General Manager
42
THE TOKAI BANK, LIMITED,
by /s/ Masahara Muto
---------------------
Name: Masahara Muto
Title: Deputy General
Manager
UNION BANK OF SWITZERLAND, HOUSTON
AGENCY,
by /s/ Xxx X. Xxxxx
-------------------------
Name: Xxx X. Xxxxx
Title: Managing Director
by /s/ Xxxxxx Xxxxxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Assistant Treasurer
WESTDEUTSCHE LANDESBANK
GIROZENTRALE,
by /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
by /s/ X. Xxxxxx
---------------------
Name: X. Xxxxxx
Title: Vice President
43
YASUDA TRUST AND BANKING COMPANY,
by /s/ Xxxxxx Xxxxxx
---------------------
Name: Xxxxxx Xxxxxx
Title: Deputy General
Manager
EXHIBIT A
PROMISSORY NOTE
$ New York, New York
July 17, 1995
FOR VALUE RECEIVED, the undersigned, P.T. FREEPORT
INDONESIA COMPANY, a limited liability company organized
under the laws of Indonesia and also domesticated in
Delaware (the "Borrower"), hereby promises to pay to the
order of [name of Bank] (the "Bank"), at the office of
Chemical Bank (the "Administrative Agent"), at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Maturity Date as
defined in the Credit Agreement entered into as of October
27, 1989 (as amended, restated or modified from time to
time, the "Credit Agreement"), among the Borrower, FREEPORT-
McMoRan COPPER & GOLD INC., a Delaware corporation, the
Banks named therein, FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION (for purposes of Article VIII thereof only) as
trustee for the Banks under the FI Trust Agreement (as
defined therein), the Administrative Agent, CHEMICAL BANK,
as FCX Collateral Agent, and THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as Documentary Agent, the lesser of
the principal sum of [amount of commitment] Dollars ($ )
and the aggregate unpaid principal amount of all Loans made
by the Bank to the Borrower pursuant to Section 3.2 of the
Credit Agreement, in lawful money of the United States of
America in same day funds, and to pay interest from the date
hereof on such principal amount from time to time
outstanding, in like funds, at said office, at a rate or
rates per annum and payable on such dates as determined
pursuant to the Credit Agreement.
The Borrower promises to pay interest, on demand,
on any overdue principal and, to the extent permitted by
law, overdue interest from their due dates at a rate or
rates determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment,
demand, protest and notice of any kind whatsoever. The
nonexercise by the holder of any of its rights hereunder in
any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Promissory Note
and all payments and prepayments of the principal hereof and
interest hereon and the respective dates thereof shall be
endorsed by the holder hereof on the schedule attached
hereto and made a part hereof, or on a continuation thereof
which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records;
provided, however, that any failure of the holder hereof to
make a notation or any error in such notation shall not in
any manner affect the obligation of the Borrower to make
payments of principal and interest in accordance with the
terms of this Promissory Note and the Credit Agreement.
This Promissory Note is one of the Promissory
Notes referred to in the Credit Agreement which, among other
things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for
optional and mandatory prepayment of the principal hereof
prior to the maturity thereof and for the amendment or
waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified. This
Promissory Note and the borrowings evidenced hereby are
entitled to the benefits of the FI Security Documents (as
defined in the Credit Agreement). THIS PROMISSORY NOTE
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
P.T. FREEPORT INDONESIA
COMPANY,
by
Name:
Title:
Loans and Payments
------------------
Unpaid Name of
Amount Payments Principal Person
and Type Maturity ------------------- Balance Making
Date of Loan Date Principal Interest of Note Notation
---- ------- -------- --------- -------- --------- --------
SCHEDULE I
APPLICABLE MARGINS
FI Libor FCX Libor Commitment Fee
Ratings Spread Spread Percentage
------- -------- --------- --------------
BBB/Baa2 or above .500% .625% .175%
BBB-/Baa3 .625% .750% .225%
BB+/Ba1 .875% 1.000% .300%
BB/Ba2 1.250% 1.375% .375%
BB-/Ba3 or below 1.750% 1.875% .500%
(The ABR Spread under the Credit Agreement will not change)
SCHEDULE II
COMMITMENTS OF THE BANKS
Applicable
Bank Percentage Commitment
-------------------------- ---------- -----------
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION) 3.90% $21,450,000
BANK OF MONTREAL 3.60% $19,800,000
BARCLAYS BANK PLC 3.60% $19,800,000
DEUTSCHE BANK, AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES, 3.60% $19,800,000
SINGAPORE BRANCH
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK 3.60% $19,800,000
NATIONAL WESTMINSTER BANK PLC 3.60% $19,800,000
THE BANK OF NOVA SCOTIA 3.60% $19,800,000
THE BANK OF TOKYO-MITSUBISHI,
LTD. HOUSTON AGENCY 3.60% $19,800,000
THE FIRST NATIONAL BANK OF
CHICAGO 3.60% $19,800,000
THE FUJI BANK, LIMITED, HOUSTON
AGENCY 3.60% $19,800,000
THE INDUSTRIAL BANK OF JAPAN,
LIMITED NEW YORK BRANCH 3.60% $19,800,000
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED 3.60% $19,800,000
THE SANWA BANK LIMITED,
DALLAS AGENCY 3.60% $19,800,000
THE SUMITOMO BANK, LIMITED,
HOUSTON AGENCY 3.60% $19,800,000
ABN AMRO BANK N.V., HOUSTON
AGENCY 2.50% $13,750,000
ARAB BANKING CORPORATION
(B.S.C.) 2.50% $13,750,000
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED,
CAYMAN ISLANDS BRANCH 2.50% $13,750,000
BANQUE NATIONALE DE PARIS 2.50% $13,750,000
BANQUE PARIBAS, NEW YORK/CAYMAN
ISLANDS BRANCHES 2.50% $13,750,000
DAI-ICHI KANGYO BANK, LTD. 2.50% $13,750,000
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN BRANCH 2.50% $13,750,000
THE NORINCHUKIN BANK, NEW YORK
BRANCH 2.50% $13,750,000
THE ROYAL BANK OF SCOTLAND PLC 2.50% $13,750,000
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY 2.50% $13,750,000
BANK AUSTRIA
AKTIENGESELLSCHAFT 2.00% $11,000,000
CHRISTIANIA BANK OG KREDITKASSE 2.00% $11,000,000
P.T. BANK RAKYAT INDONESIA
(PERSERO) 2.00% $11,000,000
REPUBLIC NATIONAL BANK OF NEW
YORK 2.00% $11,000,000
THE MITSUI TRUST AND BANKING
COMPANY, LTD 2.00% $11,000,000
THE SAKURA BANK, LIMITED,
HOUSTON AGENCY 2.00% $11,000,000
YASUDA TRUST AND BANKING
COMPANY 2.00% $11,000,000
FIRST NATIONAL BANK OF COMMERCE 1.50% $8,250,000
HIBERNIA NATIONAL BANK 1.50% $8,250,000
PT BANK NEGARA INDONESIA
(PERSERO) 1.50% $8,250,000
SOCIETE GENERALE, SOUTHWEST
AGENCY 1.50% $8,250,000
THE TOKAI BANK, LIMITED 1.50% $8,250,000
WESTDEUTSCHE LANDESBANK
GIROZENTRALE 1.50% $8,250,000
BANK OF AMERICA ILLINOIS 1.30% $7,150,000
TOTAL 100 $550,000,000.00
SCHEDULE III
DESCRIPTION OF NEW INFRASTRUCTURE PROJECTS
