EXECUTION COPY____________________________________________________________
CREDIT AGREEMENT
Dated as of June 30, 1995
Among
FM PROPERTIES OPERATING CO.,
FREEPORT-McMoRan INC.,
FREEPORT-McMoRAN COPPER & GOLD INC.,
The Banks Named Herein,
CHEMICAL BANK,
as Administrative Agent
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 . . . . . . . . . . . 23
Section, Article, Exhibit and Schedule
Section 1.3. References, etc. . . . . . . . . . . 23
Section 1.4. Incorporated Agreements and Definitions 24
ARTICLE II
The Loans
Section 2.1. Revolving Credit Facility . . . . . . . 24
Section 2.2. Loans . . . . . . . . . . . . . . . . . 25
Section 2.3. Notice of Loans . . . . . . . . . . . . 26
Section 2.4. Promissory Notes . . . . . . . . . . . 27
Section 2.5. Interest on Loans . . . . . . . . . . . 28
Section 2.6. Fees . . . . . . . . . . . . . . . . . 28
Maturity and Reduction of
Section 2.7. Commitments . . . . . . . . . . . . . 29
Interest on Overdue Amounts; Alternative
Section 2.8. Rate of Interest . . . . . . . . . . 30
Section 2.9. Prepayment of Loans . . . . . . . . . . 31
Section 2.10. Continuation and Conversion of Loans . 32
Reserve Requirements; Change in
Section 2.11. Circumstances . . . . . . . . . . . . 33
Section 2.12. Change in Legality . . . . . . . . . . 37
Section 2.13. Indemnity . . . . . . . . . . . . . . . 38
Section 2.14. Pro Rata Treatment . . . . . . . . . . 39
Section 2.15. Sharing of Setoffs . . . . . . . . . . 39
Section 2.16. Payments . . . . . . . . . . . . . . . 40
Section 2.17. U.S. Taxes . . . . . . . . . . . . . . 42
FTX or Restricted Subsidiary as Limited
Section 2.18. Partner . . . . . . . . . . . . . . . 45
ARTICLE III
Representations and Warranties
Representations and Warranties of the
Section 3.1. Partnership . . . . . . . . . . . . . 45
(a) Organization, Powers . . . . . . 45
(b) Authorization . . . . . . . . . 46
(c) Governmental Approval . . . . . 46
(d) Enforceability . . . . . . . . . 47
(e) Financial Statements . . . . . . 47
(f) Litigation; Compliance with
Laws, etc. . . . . . . . . . . 48
(g) Title, etc. . . . . . . . . . . 49
(h) Federal Reserve Regulations;
Use of Proceeds . . . . . . . 49
(i) Taxes . . . . . . . . . . . . . 50
(j) Employee Benefit Plans . . . . . 50
(k) Environmental Matters . . . . . 50
(l) Investment Company Act . . . . . 52
(m) Public Utility Holding Company
Act . . . . . . . . . . . . . 52
(n) Subsidiaries . . . . . . . . . . 52
(o) Solvency . . . . . . . . . . . . 52
(p) Key Assets . . . . . . . . . . . 53
(q) No Material Misstatements . . . 53
Representations and Warranties of
Section 3.2. FTX . . . . . . . . . . . . . . . . . 53
(a) Organization, Powers . . . . . 53
(b) Authorization . . . . . . . . . 53
(c) Governmental Approval . . . . . 54
(d) Enforceability . . . . . . . . . 54
(e) Litigation; Compliance with
Laws, etc. . . . . . . . . . . 55
(f) Representations Incorporated By
Reference from the FTX Credit
Agreement . . . . . . . . . . . 55
(g) Florida Environmental Liability 55
(h) No Material Misstatements . . 55
Section 3.3. Representations and Warranties of FCX . 56
(a) Organization, Powers . . . . . . 56
(b) Authorization . . . . . . . . . 56
(c) Governmental Approval . . . . . 57
(d) Enforceability . . . . . . . . . 57
(e) Litigation; Compliance with
Laws, etc. . . . . . . . . . . 58
(f) Representations Incorporated By
Reference from the FCX Credit
Agreement . . . . . . . . . . 58
(g) No Material Misstatements . . . 58
ARTICLE IV
Covenants
Affirmative Covenants of the
Section 4.1. Partnership . . . . . . . . . . . . . 59
(a) Financial Statements, etc. . . . 59
(b) Obligations, Taxes and Claims . 61
(c) Maintenance of Existence;
Conduct of Business . . . . . 62
(d) Compliance with Applicable Laws 62
(e) Litigation . . . . . . . . . . . 62
(f) ERISA . . . . . . . . . . . . . 63
(g) Insurance . . . . . . . . . . . 63
(h) Access to Premises and Records . 63
(i) Compliance with Environmental
Laws . . . . . . . . . . . . . 64
(j) Preparation of Environmental
Reports . . . . . . . . . . . 64
Negative Covenants of the
Section 4.2. Partnership . . . . . . . . . . . . . 64
(a) Conflicting Agreements . . . . . 64
(b) Material Agreements . . . . . . 65
(c) Mergers and Consolidations . . . 65
(d) Liens . . . . . . . . . . . . . 65
(e) Investments, Loans, Advances
and Acquisitions . . . . . . . 67
(f) Distributions . . . . . . . . . 68
(g) Indebtedness . . . . . . . . . . 69
(h) Sale and Lease-Back
Transactions . . . . . . . . . 70
(i) Transactions with Affiliates . . 71
(j) Fiscal Year . . . . . . . . . . 71
(k) Business of Partnership
and Subsidiaries . . . . . . . 71
(l) Federal Reserve Regulations; Use
of Proceeds . . . . . . . . . 71
(m) Certain Debt Agreements . . . . 72
(n) Swaps . . . . . . . . . . . . . 72
(o) Assets of Subsidiaries . . . . . 72
Section 4.3. Affirmative Covenants of FTX . . . . . 73
(a) Affirmative Covenants
Incorporated by Reference from
the FTX Credit Agreement . . . 73
(b) Partnership's Covenants and
FTX . . . . . . . . . . . . . 73
Section 4.4. Negative Covenants of FTX . . . . . . . 73
(a) Negative Covenants Incorporated
by Reference from the FTX
Credit Agreement . . . . . . . 73
(b) Material Agreements . . . . . . 74
Section 4.5. Affirmative Covenants of FCX . . . . . 74
Section 4.6. Negative Covenants of FCX . . . . . . . 74
ARTICLE V
Conditions of Credit
Conditions Precedent to Initial
Section 5.1. Borrowing . . . . . . . . . . . . . . 75
Conditions Precedent to Each
Section 5.2. Borrowing . . . . . . . . . . . . . . 79
Representations and Warranties with
Section 5.3. Respect to Borrowings . . . . . . . . 80
ARTICLE VI
Events of Default
Section 6.1. Events of Default . . . . . . . . . . . 80
ARTICLE VII
FTX Undertaking
Section 7.1. FTX Undertaking . . . . . . . . . . . . 84
ARTICLE VIII
The Agents
Section 8.1. The Agents . . . . . . . . . . . . . . 85
ARTICLE IX
Miscellaneous
Section 9.1. Notices . . . . . . . . . . . . . . . . 89
Section 9.2. Survival of Agreement . . . . . . . . . 90
Successors and Assigns; Participations;
Section 9.3. Purchasing Banks . . . . . . . . . . 90
Section 9.4. Expenses of the Banks; Indemnity . . . 95
Section 9.5. Right of Setoff . . . . . . . . . . . . 97
Section 9.6. Applicable Law . . . . . . . . . . . . 98
Section 9.7. Waivers; Amendments . . . . . . . . . . 98
Section 9.8. Severability . . . . . . . . . . . . . 99
Section 9.9. Counterparts . . . . . . . . . . . . . 99
Section 9.10. Headings . . . . . . . . . . . . . . . 99
Section 9.11. Entire Agreement . . . . . . . . . . . 99
Section 9.12. Waiver of Jury Trial, etc. . . . . . . 100
Section 9.13. Interest Rate Limitation . . . . . . . 100
Section 9.14. Jurisdiction; Consent to Service of 101
Process . . . . . . . . . . . . . . .
Section 9.15. Confidentiality . . . . . . . . . . . . 102
SCHEDULE I Applicable Margin; Commitment Fees
SCHEDULE II Commitments
SCHEDULE III Key Assets
SCHEDULE IV Florida Properties
SCHEDULE V Subsidiaries
SCHEDULE VI Litigation
Exhibit A Form of Promissory Note
Exhibit B Form of Borrowing Notice
Exhibit C Form of Commitment Transfer Supplement
Exhibit D Form of Administrative Questionnaire
Exhibit E Form of Subordination Terms
Exhibit F Form of Opinion of the General Counsel
of FTX and FCX
Exhibit G Form of Opinion of Xxxxx Xxxx & Xxxxxxxx
Exhibit H Form of FTX/FMPO Credit Agreement
Exhibit I Form of FM Intercreditor Agreement
Exhibit J Form of Reimbursement Agreement
Exhibit K Form of FTX Guaranty
Exhibit L Form of FCX Guaranty
CREDIT AGREEMENT dated as of June 30, 1995, among FM
PROPERTIES OPERATING CO., a Delaware general partnership
(the "Partnership" or the "Borrower"), FREEPORT-McMoRan
INC., a Delaware corporation ("FTX"), FREEPORT-McMoRan
COPPER & GOLD INC., a Delaware corporation ("FCX"; FTX and
FCX being the "Guarantors"), the undersigned banks
(collectively, the "Banks") and CHEMICAL BANK, a New York
banking corporation ("Chemical"), as administrative agent
for the Banks (in such capacity, the "Administrative
Agent"), and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), a national banking association, as
Documentation Agent for the Banks (the "Documentation
Agent"; the Administrative Agent and the Documentation Agent
being, collectively, the "Agents").
A. FTX has a 0.2% general partnership interest in and
serves as managing general partner of the Partnership, and
the Company (as herein defined) directly and indirectly has
the remaining 99.8% general partnership interest in the
Partnership.
B. In connection with the Restructuring (as herein
defined), the Partnership wishes to refinance its borrowings
under the Existing FM Credit Agreement and to provide that
FCX and FTX will each severally guarantee a portion of the
loans under this Agreement.
C. FTX, FCX and the Partnership have requested the
Banks to extend credit, subject to the terms and conditions
of this Agreement, in order to enable the Partnership to
borrow on a revolving basis, at any time and from time to
time prior to the Maturity Date (as herein defined), an
aggregate principal amount at any time outstanding not in
excess of $50,000,000. The proceeds of such borrowings are
to be used to refinance certain existing borrowings and for
general partnership purposes, subject to certain limitations
provided herein. The Banks are willing to extend such
credit to the Partnership on the terms and subject to the
conditions herein set forth.
D. FTX is party to the FTX Credit Agreement and FCX is
party to the FCX Credit Agreement (as herein defined).
Certain terms and provisions used or set forth in such
Credit Agreements are incorporated by reference herein, as
specified below, and wherever so incorporated shall be
deemed to be a part hereof as though fully set forth herein.
Wherever any provisions of such Credit Agreements are
incorporated by reference herein, such provisions shall be
deemed to be so incorporated with the same effect as though
fully set forth herein, it being understood that any refer-
ence in such provisions to "this Agreement" shall be deemed
to be a reference to this Agreement, as appropriate.
Accordingly, FTX, FCX, the Partnership, the Banks and
the Agents 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.
"Administrative Services Agreement" means the
Administrative Services Agreement dated as of June 11, 1992,
between FTX and the Company, in the form provided prior to
the date hereof by FTX to the Banks.
"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.
"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 Loan,
the applicable percentage set forth on Schedule I hereto.
"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.
"Assignment and Acceptance Effective Date" has the
meaning assigned to such term in each Assignment and Accep-
tance.
"Bank" means each bank signatory hereto and its
successors and permitted assigns under Section 9.3.
"Board" means the Board of Governors of the Federal
Reserve System of the United States.
"Borrowing" shall mean a group of Loans of a single
Type made by the Banks on a single date and as to which a
single Interest Period is in effect.
"Borrowing Date" means, with respect to any Loan, the
date on which such Loan is disbursed.
"Xxxxx Parties" means, collectively, Xxxxx Oil Co.
(formerly Pel-Tex Oil Company, Inc.), Xxxxxxx Oil Company,
Inc., Xxxxx and Pel-Tex Oil Company, Inc., doing business as
Burmont Company, Xxxx X. Xxxxx, Xx. and Xxx Xxxxxxx Xxxxx,
as assignors of the Pel-Tex Agreements to the Pel-Tex
Lenders.
"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.
"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.
A "Change in Control" shall be deemed to have occurred
if FTX shall for any reason cease to be the sole managing
general partner of the Partnership or the functions of FTX
as the managing general partner of the Partnership shall
generally be carried out for any reason by any person other
than FTX; provided that no Change in Control shall be deemed
to have occurred if any subsidiary of FTX designated by FTX
to discharge the duties of FTX as the managing general
partner of the Partnership shall carry out the functions of
FTX as managing general partner of the Partnership.
"Circle C Property" has the meaning assigned such term
in Section 4.2(g)(ii).
"Circle C Subsidiary" has the meaning assigned such
term in Section 4.2(g)(ii).
"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.
"Collateral Agents" mean the FM Collateral Agent, the
FCX Collateral Agent and the FTX Collateral Agent.
"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 Assignment and
Acceptance pursuant to which such Bank assumed its
Commitment, as the same may be permanently terminated or
reduced from time to time pursuant to Section 2.7 and
pursuant to assignments by such Bank pursuant to
Section 9.3. 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 2.6(a).
"Commitment Termination Date" has the meaning assigned
to such term in Section 2.6(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.
"Company" means FM Properties Inc., a Delaware
corporation, which holds directly and indirectly a 99.8%
general partnership interest in the Partnership.
"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.
"Credit Event" means the making of a Loan.
"Default" means any event or condition which upon the
giving of notice or lapse of time or both would become an
Event of Default.
"Distribution Agreement" means the Distribution
Agreement dated as of June 10, 1992, among FTX, the Company
and the Partnership, in the form provided prior to the date
hereof by FTX to the Banks.
"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 Borrower.
"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,
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.
"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 the 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 the 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 the 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 the Borrower.
"Event of Default" means any Event of Default defined
in Article VI.
"Existing FM Credit Agreement" has the meaning assigned
such term in Section 5.1(e).
"FCX" means Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation.
"FCX Collateral Agent" means Chemical in its capacity
as FCX Collateral Agent for the Lenders (as defined in the
FCX Intercreditor Agreement) under the FCX Pledge
Agreements.
"FCX Credit Agreement" means the $200,000,000 Credit
Agreement dated as of June 30, 1995, among FCX, FI, certain
banks, Chemical Bank, as Administrative Agent and FCX
Collateral Agent, The Chase Manhattan Bank (National
Association), as Documentary Agent, and First Trust of New
York, National Association, as FI Trustee.
"FCX Guaranty" means the FCX Guaranty Agreement dated
as of June 30, 1995, by FCX of the Loans, the Pel-Tex Debt
and the loans under the TCB Credit Agreement, substantially
in the form of Exhibit L, as such agreement may be amended
and in effect from time to time.
"FCX Intercreditor Agreement" means the Intercreditor
Agreement in the form of Exhibit H to the FCX Credit
Agreement, as such Agreement may be amended and in effect
from time to time.
"FCX Pledge Agreements" means the pledge agreements in
the forms of Exhibits E-1 and E-2 to the FCX Credit
Agreement, to be executed by FCX and delivered to the FCX
Collateral Agent, as such agreement may be amended and in
effect from time to time.
"Financial Officer" of any entity means the principal
financial officer, principal accounting officer, treasurer,
assistant treasurer or controller of such entity; provided
that the Financial Officers of FTX, as managing general
partner of the Partnership, shall be deemed to be Financial
Officers of the Partnership.
"FI" means P.T. Freeport Indonesia Company, a limited
liability company organized under the laws of Indonesia and
domesticated in Delaware.
"Florida Joint Venture Agreement" means the Joint
Venture Agreement dated as of June 11, 1992, between IMC-
Agrico and the Partnership, in the form provided prior to
the date hereof by FTX to the Banks.
"FM Florida Properties Co." means FM Florida Properties
Co., a Delaware general partnership between the Partnership
and IMC-Agrico, formed pursuant to the Florida Joint Venture
Agreement.
"FM Intercreditor Agreement" means the Intercreditor
Agreement among FCX, FTX, the Administrative Agent and the
Pel-Tex Agent in the form of Exhibit I hereto, as such
Agreement may be amended and in effect from time to time.
"FRP" means Freeport-McMoRan Resource Partners, Limited
Partnership, a Delaware limited partnership.
"FTX Collateral Agent" means Chemical in its capacity
as FTX Collateral Agent for the Lenders (as defined in the
FTX Intercreditor Agreement) under the FTX Security
Agreement.
"FTX Credit Agreement" means the Credit Agreement dated
as of June 30, 1995, among FTX, FRP, certain banks, Chemical
Bank, as Administrative Agent and FTX Collateral Agent, and
The Chase Manhattan Bank (National Association), as
Documentary Agent.
"FTX/FMPO Credit Agreement" means the Credit Agreement
dated as of the Funding Date, between FTX and the Company,
in the form of Exhibit H hereto, as such agreement may be
amended as permitted hereby and in effect from time to time.
"FTX Guaranty" means the FTX Guaranty Agreement dated
as of June 30, 1995, providing for the guarantee by FTX of
the Loans, the Pel-Tex Debt and the loans under the TCB
Credit Agreement, substantially in the form of Exhibit K, as
such agreement may be amended and in effect from time to
time.
"FTX Intercreditor Agreement" means the Intercreditor
Agreement entered into as of June 11, 1992, as amended and
restated in its entirety as of June 1, 1993, and as of the
Funding Date in the form attached to the FTX Credit
Agreement as Exhibit G, among the Administrative Agent on
behalf of the Banks, the FTX Agent on behalf of the FTX
Lenders, the Pel-Tex Agent on behalf of the Pel-Tex Lenders
(each as defined therein), TCB and Chemical, as FTX
Collateral Agent, as such agreement may be further amended
and in effect from time to time.
"FTX Term Loan" has the meaning assigned such term in
the last clause of Section 4.2(g).
"FTX Security Agreement" means the security agreement
in the form of Exhibit F to the FTX Credit Agreement,
executed by FTX and delivered to the FTX Collateral Agent as
such agreement may be amended and in effect from time to
time.
"Funding Date" means the first date on which the
conditions to borrowing set forth in Article V have been
satisfied.
"GAAP" has the meaning assigned to such term in
Section 1.2.
"Governmental Authority" means any Federal, state,
local or 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 Indebtedness 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 Indebtedness or
obligation or to purchase (or advance or supply funds for
the purchase of) any security for the payment of such
Indebtedness, obligation, dividend or distribution, (iii) to
purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or
obligation or the holder of such stock of the payment of
such Indebtedness, 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 Indebtedness, 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.
"Guaranties" shall mean the FCX Guaranty and the FTX
Guaranty.
"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.
"IMC-Agrico" means the general partnership formed
pursuant to the IMC-Agrico Partnership Agreement.
"IMC-Agrico Partnership Agreement" means the Amended
and Restated Partnership Agreement dated as of July 1, 1993,
by and among Agrico LP, a Delaware limited partnership, IMC-
Agrico GP Company, a Delaware corporation, IMC-Agrico MP
Inc., a Delaware corporation, as amended and in effect from
time to time as permitted by Section 5.2(r) of the FTX
Credit Agreement as incorporated herein by reference.
"Indebtedness" 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 Indebtedness
of others secured by (or for which the holder of such
Indebtedness 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
Indebtedness 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 Indebtedness
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 Indebtedness of any Person shall include the
Indebtedness of any partnership in which such Person is a
general partner but shall exclude obligations under leases
which are characterized as Operating Leases.
"Intercreditor Documents" means the FM Intercreditor
Agreement, the FTX Intercreditor Agreement and the FCX
Intercreditor Agreement.
"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 2.16), 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 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.
"Key Assets" means the properties and assets of the
Borrower shown on Schedule III.
"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 Chemical's
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
Chemical's 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 Administrative Agent
and the Borrower, unless such Bank shall designate a
different LIBOR Office by notice in writing to the
Administrative Agent and the Borrower.
"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.
"Loans" means the revolving loans made by the Banks to
the Borrower pursuant to Section 2.1. Each Loan shall be
either a LIBO Rate Loan or a Reference Rate Loan.
"Loan Documents" means this Agreement, the Promissory
Notes, the FCX Guaranty, the FTX Guaranty, the
Intercreditor Agreements, the Security Agreements 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.
"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
Guarantor or the Borrower and the Subsidiaries taken as a
whole, (b) material impairment of the ability of a Guarantor
or the Borrower or any of the 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.
"Material Agreements" means the Distribution Agreement,
the Partnership Agreement, the Administrative Services
Agreement, the FRP Joint Venture Agreement, the
Reimbursement Agreement and the FTX/FMPO Credit Agreement.
"Maturity Date" means the second anniversary of the
Closing Date, or, if earlier, the date of termination of the
Commitments pursuant to the terms hereof.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the 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" shall mean in connection with any
permitted asset sale, the proceeds thereof (including any
condemnation award and any payment or settlement of a
casualty insurance claim not used to restore the related
property) in the form of cash or cash equivalents (including
any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only
as and when received), net of the following, without
duplication: (i) customary and reasonable attorneys' fees,
accountants' fees, investment banking fees, brokerage
commissions, all closing costs, and other customary fees and
expenses actually incurred in connection therewith as
transaction costs, and bona fide reserves and deposits, and
(ii) any taxes paid or reasonably estimated to be payable
solely in respect of such permitted asset sale as a result
thereof by the owner of such asset (after taking into
account any available tax credits or deductions).
"1994 FCX Form 10-K" means the Annual Report on Form
10-K of FCX for the year ended December 31, 1994.
"1994 FM Form 10-K" means the Annual Report on Form 10-
K of the Company for the year ended December 31, 1994.
"1994 FTX Form 10-K" means the Annual Report on
Form 10-K of FTX for the year ended December 31, 1994.
"Operating Lease" means any lease other than a lease
giving rise to a Capitalized Lease Obligation.
"Partnership Agreement" means the Amended and Restated
Agreement of General Partnership dated as of June 11, 1992,
among FTX, the Company and FMOP Sub Inc., in the form
provided prior to the date hereof by FTX to the Banks.
"Partnership Obligations" means the principal and
interest on each Loan and all other amounts payable by the
Borrower hereunder and under the other Loan Documents,
including fees, indemnities and reimbursement of costs and
expenses.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"Pel-Tex Agent" means Hibernia National Bank, as Agent
for the Pel-Xxx Xxxxx.
"Pel-Tex Agreements" means the Note Agreement and
related documents dated as of December 31, 1985, as amended
and restated and in effect from time to time, between the
Partnership (as ultimate successor to FMP Operating Company)
and the Pel-Xxx Xxxxx (as successor to the Xxxxx Parties).
"Pel-Tex Bank Agreement" means the Credit Agreement
dated as of December 31, 1985, as amended and in effect from
time to time, among the Xxxxx Parties, the Pel-Xxx Xxxxx and
Pel-Tex Agent.
"Pel-Xxx Xxxxx" means, collectively, the banks which
were parties to the Pel-Tex Bank Agreement and, in
connection with satisfaction on the Xxxxx Parties of the
Pel-Tex Bank Agreement, became the successors to the Xxxxx
Parties under the Pel-Tex Agreements (and the successors and
assigns of such Banks).
"Pel-Tex Debt" means the Indebtedness permitted by
Section 4.2(g)(i).
"Pel-Tex Lenders" means, collectively, the Pel-Xxx
Xxxxx and the Pel-Tex Agent.
"Pel-Tex Obligations" means, without duplication, all
amounts owing by, and all other obligations (including
without limitation in respect of fees, indemnities and xxxx-
bursement of costs or expenses), whether direct or contin-
gent, now or hereafter existing, due or to become due, mone-
tary or otherwise, of the Partnership to the Pel-Tex Lenders
in connection with the Pel-Tex Agreements.
"Permitted Investments means:
(a) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed
by, the United States of America, in each case maturing
within 90 days from the date of acquisition thereof;
(b) investments in commercial paper maturing within 90
days from the date of acquisition thereof and having, at
such date of acquisition, an A-1 credit rating from
Standard & Poor's Corporation or a P-1 credit rating from
Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits (onshore or offshore)
maturing within 90 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any
commercial bank, foreign or domestic, having a short-term
deposit rating issued by Xxxxx'x Investor Service, Inc. of
P-1;
(d) investments in readily marketable money market
funds having assets in excess of $1,000,000,000, which
assets have an average life of less than one year; and
(e) other investment instruments approved in writing by
the Required Banks.
"Permitted Swap" means any Hedge Agreement between the
Partnership or any Subsidiary and any Bank or its affiliates
that shall not require the payment of any up-front fee or
other up-front amount or any advance payment (including such
a payment in lieu of periodic payments of amounts accrued
during any period).
"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.
"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 the 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.
"Promissory Note" means a promissory note of the
Borrower, substantially in the form of Exhibit A, as
applicable, evidencing the Loans.
"Promissory Notes" means the promissory notes of the
Borrower referred to in Section 2.4.
"Property" has the meaning assigned such term in
Section 3.1(k).
"Reimbursement Agreement" means the Reimbursement
Agreement between the Partnership and FTX and FCX in the
form of Exhibit J hereto as such agreement may be amended as
permitted hereby and in effect from time to time.
"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 9.3(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 andinterpretations
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,
xxxxx 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 9.7(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 having outstanding
Loans representing at least 66-2/3% of the aggregate
principal amount of the outstanding Loans.
"Responsible Officer" of any entity means any executive
officer or Financial Officer of such entity and any other
officer or similar official thereof responsible for the
administration of the obligations of such entity in respect
of this Agreement; provided that the Responsible Officers of
FTX, as managing general partner of the Partnership, shall
be deemed to be Responsible Officers of the Partnership.
"Restricted Subsidiary" has the meaning assigned to
such term in the FTX Credit Agreement or the FCX Credit
Agreement, as applicable.
"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 set forth in Schedule XI to the FTX Credit
Agreement 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 Indonesia" means RTZ Indonesia Limited, a company
organized under the laws of England and a wholly owned
subsidiary of RTZ.
"SEC" means the Securities and Exchange Commission.
"Security Agreements" means, collectively, the FCX
Pledge Agreements and the FTX Security Agreement.
"Specified Entities" means FTX, FCX, the Company, the
Restricted Subsidiaries of FTX and FCX, the Partnership and
the Subsidiaries.
"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.
"Subordination Terms" means the form of subordination
terms set forth as Exhibit E hereto.
"subsidiary" means, with respect 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.
"Subsidiary" means any subsidiary of the Partnership.
"TCB" means Texas Commerce Bank National Association, a
national banking association (and its successors and
assigns).
"TCB Borrower" means the borrower under the TCB Credit
Agreement.
"TCB Borrower Properties" means the Mortgaged Property
described in (and as defined in) the TCB Deed of Trust.
"TCB Collateral" means all of the TCB Borrower's
properties or assets, now owned or hereafter acquired,
including without limitation the TCB Borrower Properties.
"TCB Credit Agreement" means the Credit Agreement dated
as of February 6, 1992, as amended to the date hereof and as
further amended and in effect from time to time, between the
TCB Borrower and TCB.
"TCB Deed of Trust" means the Deed of Trust (with
security agreement and financing statement) recorded in
Volume 11620, Page 1213 of the real property records of
Xxxxxx County, Texas, and in the official public records of
Xxxx County, Texas.
"Threshold Amount" means, with respect to FTX, FCX
and/or their Restricted Subsidiaries, $10,000,000, and, with
respect to the Partnership or any Subsidiary, $5,000,000.
"Total Commitment" means the sum of all the then
effective Commitments.
"Transfer" means the transfer by FTX to the Partnership
of certain oil, gas and real estate assets, pursuant to and
in accordance with the Distribution Agreement, all as
described in the Form 10.
"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 9.3.
"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 Partnership's or FTX's
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) of the FTX Credit
Agreement ("GAAP"); provided, however, that each reference
in Section 5.2, or in the definition of any term used in
Section 5.2, to GAAP shall mean generally accepted
accounting principles as in effect on the Closing Date and
as applied by FTX in preparing the financial statements
referred to in Section 3.1(e). In the event any change in
GAAP materially affects any provision of this Agreement, the
Banks and the Borrower 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 Borrower's 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.
SECTION 1.4. Incorporated Agreements and Definitions.
Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the FTX
Credit Agreement or the FCX Credit Agreement, as applicable,
and the definitions of such terms, and of any other terms
included in such definitions are hereby incorporated by
reference into this Agreement (but only for the purpose of
ascertaining the meanings of such incorporated definitions).
For purposes of such incorporation by reference, the FTX
Credit Agreement and the FCX Credit Agreement shall
automatically mean such agreements in the form modified or
amended from time to time, without the necessity of any
further action or approval pursuant to this Agreement. If
either the FCX Credit Agreement or the FTX Credit Agreement
shall be terminated, for purposes of this Agreement, the
provisions of the terminated agreement incorporated herein
shall be deemed to be those as in effect immediately prior
to such termination.
ARTICLE II
The Loans
SECTION 2.1. 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 the
Borrower, at any time and from time to time on or after the
Funding Date, and 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 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 Borrower may
borrow, repay and reborrow, prior to the Maturity Date,
Loans subject to the terms, provisions and limitations set
forth herein.
SECTION 2.2. Loans. (a) The Loans made by the Banks
to the Borrower on any one date shall be in an aggregate
principal amount which is (i) an integral multiple of
$1,000,000 or (ii) equal to the remaining available balance
of the applicable Commitments. The Loans by each Bank to
the Borrower made on and after the Funding Date shall be
made against an appropriate Promissory Note, payable to the
order of such Bank in the amount of its Commitment, executed
by the Borrower and delivered to such Bank on the Closing
Date, as referred to in Section 2.4.
(b) Each Loan shall be either a Reference Rate Loan or
a LIBO Rate Loan as the Borrower may request pursuant to
Section 2.3. Subject to the provisions of Sections 2.3 and
2.10, Loans of more than one type may be outstanding at the
same time.
(c) Each Bank shall make its portion, as determined
under Section 2.14, 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 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 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 Borrower severally agree to repay
without duplication 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 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 2.3. Notice of Loans. (a) In order to
request a Loan, the Borrower 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, the Borrower may, subject to
Section 2.13, 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) whether the Loan then being
requested is to be a Reference Rate Loan or LIBO Rate Loan,
(2) the date of such Loan (which shall be a Business Day)
and amount thereof, and (3) 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 the 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 the Borrower,
then the 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 the Borrower pursuant to this Section 2.3(a) and of
each Bank's portion of the requested Loan.
(b) The 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 2.10 and subject
to the limitations set forth herein. If the Borrower shall
not have delivered a borrowing notice in accordance with
this Section 2.3 prior to the end of the Interest Period
then in effect for any Loan of the Borrower requesting that
such Loan be converted or continued as permitted hereby,
then the 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 2.3
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, the Borrower shall not in any borrowing
notice under this Section 2.3 request any LIBO Rate Loan
which, if made, would result in more than 8 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 2.4. Promissory Notes. (a) The Loans made by
each Bank to the Borrower shall be evidenced by a Promissory
Note duly executed on behalf of the 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 Promissory Note
shall bear interest from the date of the first borrowing
hereunder on the outstanding principal balance thereof, as
provided in Section 2.5.
(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 to such Bank from
time to time under this Agreement. Each Bank shall, and is
hereby authorized by the Borrower to, endorse on the
schedule attached to the Promissory Note delivered by the
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 the 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 the 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 Borrower to each Bank hereunder and (iii) the amount of
any sum received by the Administrative Agent hereunder from
the Borrower and each Bank's share thereof.
(d) The entries made in the accounts maintained
pursuant to paragraphs (b) and (c) of this Section 2.4 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 Borrower to repay the Loans in
accordance with their terms.
SECTION 2.5. Interest on Loans. (a) Subject to the
provisions of Section 2.8, 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 2.8, 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 Borrower and each Bank of such
determination.
SECTION 2.6. Fees. (a) The Borrower 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 Closing 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
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.
(b) All Commitment Fees under this Section 2.6 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 2.7.
(c) The Borrower agrees 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 Borrower 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 2.7. Maturity and Reduction of Commitments.
(a) Upon at least five days' prior written, telecopied or
telex notice to the Administrative Agent, the Borrower 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 $1,000,000 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) The Total Commitment shall be automatically and
permanently reduced by an amount equal to 50% of the Net
Proceeds of any Key Asset sale. The Total Commitment shall
also be automatically and permanently reduced by an amount
equal to such portion of the proceeds of any equity issuance
(other than pursuant to employee option plans and similar
arrangements) by the Borrower and the Subsidiaries to any
Person other than the Borrower and the Subsidiaries. The
Commitment reductions required by this Section 2.7(b) shall
be effective as of the date of closing or effectiveness of
any transaction subject hereto; provided that with respect
to any non-cash Net Proceeds, such Commitment reductions
shall be effective as of the date of receipt of cash
proceeds thereof.
(c) On the Maturity Date, the Commitments shall
automatically terminate and any outstanding Loans shall be
due and payable in full.
SECTION 2.8. Interest on Overdue Amounts; Alternative
Rate of Interest. (a) If the 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, the 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 2.5(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 Borrower 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 Borrower and the other
Banks, and any request by the Borrower for the making of a
LIBO Rate Loan pursuant to Section 2.3 or 2.10 shall, until
the Administrative Agent shall have advised the Borrower 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 the 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 the 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 2.9. Prepayment of Loans. (a) The 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 2.13 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
$1,000,000 and an integral multiple of $1,000,000.
(b) In the event of any termination of the
Commitments, the 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 2.7, including as required by Section 2.7(b), the
Borrower 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 suchreduction.
(c) All prepayments under this Section 2.9 shall be
subject to Section 2.13. 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 upon 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 2.10. Continuation and Conversion of Loans.
The Borrower shall have the right, subject to the provisions
of Section 2.8, (i) on three Business Days' prior
irrevocable notice by the 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 the
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 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 the 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, the Loans continued or converted shall be
in a minimum aggregate principal amount of $3,000,000 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 the 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 as 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 2.13, on any other day;
(g) no Loan (or portion thereof) may be continued as or
converted into a LIBO Rate Loan if, after such
continuation or conversion, an aggregate of more than 8
separate LIBO Rate Loans of any Bank would result,
determined as set forth in Section 2.3(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
Borrower pursuant to this Section 2.10 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 Borrower in the irrevocable notice of
continuation or conversion delivered pursuant to this
Section 2.10; provided, however, that if no such Interest
Period for a LIBO Rate Loan shall be specified, the Borrower
shall be deemed to have selected an Interest Period of one
month's duration.
For purposes of this Section 2.10, notice received by
the Administrative Agent from the 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 2.11. Reserve Requirements; Change in
Circumstances. (a) The Borrower 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 Borrower), 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 xxxx the Borrower directly for
all amounts claimed pursuant to this Section 2.11(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 2.17 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 Agreement
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 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 Borrower 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 2.17 (it being understood that a
Bank may be reimbursed for any specific amount under only
one such paragraph or Section) the Borrower 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 Borrower shall
replace such Commitment with the Commitment of a commercial
bank satisfactory to the Administrative Agent. Such notice
from the Borrower 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 Borrower
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 2.17, as applicable.
The Borrower 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 2.11(d) as
set forth in Section 2.13. Upon the effective date of
termination of any Bank's Commitment pursuant to this
Section 2.11(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 Borrower 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 paragraph (c),
such Bank's holding company) above or Section 2.17, as the
case may be, shall be delivered as soon as practicable to
the Borrower, 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 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
xxxxx xxxx reasonable. The failure of any Bank (or
Transferee) to give the required 90 day notice shall excuse
the Borrower 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 2.11(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 2.11 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. The Borrower shall not
be required to make any additional payment to any Bank
pursuant to Section 2.11(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 Borrower 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 2.11. The
Borrower agree to furnish promptly to the Administrative
Agent official receipts evidencing any payment of any tax.
SECTION 2.12. Change in Legality. (a) Notwith-
standing 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 Borrower 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 Borrower
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 2.9.
(b) Before giving any notice to the Borrower and the
Administrative Agent pursuant to this Section 2.12, 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 ofSection 2.12(a),
a notice to the Borrower by any Bank shall
be effective on the date of receipt by the Borrower.
SECTION 2.13. Indemnity. The 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 the 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 Borrower
and shall be conclusive absent manifest error.
SECTION 2.14. Pro Rata Treatment. Except as permitted
under any of Sections 2.8(b), 2.11, 2.12, 2.13 or 2.17, 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 2.15. Sharing of Setoffs. Each Bank agrees
that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim against the 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
held by it as a result of which the unpaid principal portion
of the Loans held by it shall be proportionately less than
the unpaid principal portion of the Loans held by any other
Bank (other than as permitted under any of Sections 2.8(b),
2.11, 2.12, 2.13 or 2.17), 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 held by such other Bank,
so that the aggregate unpaid principal amount of the Loans
and participation in Loans held by each Bank shall be in the
same proportion to the aggregate unpaid principal amount of
all Loans of the Borrower then outstanding as the principal
amount of the Loans held by it prior to such exercise of
banker's lien, setoff or counterclaim was to the principal
amount of all Loans of the 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 2.15 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, the Borrower expressly consents to the
foregoing arrangements and agrees that any Bank holding a
participation in a Loan 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 the
Borrower hereunder to such Bank as fully as if such Bank had
made a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.16. Payments. (a) Except as otherwise
provided in this Agreement, all payments and prepayments to
be made by the 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 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 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 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 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 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 (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) such due date shall be extended to the
next succeeding Business Day, and interest shall be payable
on principal in respect of such extension.
(d) Unless the Administrative Agent shall have been
notified by the Borrower prior to the date on which any
payment or prepayment is due hereunder (which notice shall
be effective upon receipt) that the Borrower does not intend
to make such payment or prepayment, the Administrative Agent
may assume that the Borrower has 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 Borrower has 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 2.17. U.S. Taxes. (a) Any and all payments
by the Borrower hereunder shall be made, in accordance with
Section 2.16, 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 the Administrative Agent or any Bank (or
Transferee) and franchise taxes of the Administrative Agent
or any Bank (or Transferee), as applicable, as a result of a
connection between the jurisdiction imposing such taxes and
the Administrative Agent or such Bank (or Transferee), as
applicable, other than a connection arising solely from the
Administrative 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 the
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 the Administrative 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 2.17) such Bank (or Transferee) or the
Administrative 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) the Borrower shall make such
deductions and (iii) the 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 2.17 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 Borrower agrees 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 Borrower 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 2.17) 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 the Borrower to the
relevant Governmental Authority, the 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 Borrower
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 Borrower and is not
a controlled foreign corporation related to the Borrower
(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 2.17(e), no Transferee shall be
required to deliver any form pursuant to this
Section 2.17(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 2.17, the Borrower shall not 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 2.17 shall use
reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested
by the Borrower 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 2.17 shall survive the payment in
full of the principal of and interest on all Loans made
hereunder.
(i) Nothing contained in this Section 2.17 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 2.18. FTX or Restricted Subsidiary as Limited
Partner. Notwithstanding anything to the contrary contained
in this Agreement or any Promissory Note, with respect to
any direct liabilities of the Borrower to the Banks under
this Agreement, its Promissory Notes or the other Loan
Documents, FTX and any Restricted Subsidiary solely in its
capacity as a partner of the Borrower shall be deemed to be
limited, rather than general, partners of the Borrower.
Subject to the foregoing, the Partnership Obligations shall
be fully recourse to the Borrower and all its assets and
properties. Nothing in this Section 2.18 shall be deemed in
any way to derogate from or affect FTX's own direct
obligations under this Agreement (including Section 7.1),
the FTX Guaranty or the other Loan Documents.
ARTICLE III
Representations and Warranties
SECTION 3.1. Representations and Warranties of the
Partnership. As of the Funding Date, and each other date
upon which such representations and warranties are required
to be made or deemed made pursuant to Section 4.2(i), the
Partnership represents and warrants to each of the Banks as
follows:
(a) Organization, Powers. The Partnership is duly
organized, validly existing and in good standing under the
laws of the State of Delaware, has the requisite power and
authority to own its property and assets and to carry on
its business as now conducted and 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 the condition, financial
or otherwise, of the Partnership. The Partnership has the
power to execute, deliver and perform its obligations
under this Agreement and any other Loan Documents executed
and delivered or to be executed and delivered by the Part-
nership at any time, to borrow hereunder, to execute and
deliver the Promissory Notes to be delivered by it and to
countersign and accept the terms of the FM Intercreditor
Agreement.
(b) Authorization. The execution, delivery and
performance of this Agreement, any other Loan Documents
executed and delivered or to be executed and delivered by
the Partnership at any time, the Borrowings hereunder, the
execution and delivery of the Promissory Notes to be
delivered by it and the countersignature and the
acceptance of the terms of the FM Intercreditor Agreement
(i) have been duly authorized by all requisite partnership
and, if required, partner action on the part of the
Partnership and all requisite corporate, and, if required,
shareholder, action on the part of FTX and the Company and
(ii) will not (A) violate (x) any provision of law,
statute, rule or regulation or the constitutive documents
(including, without limitation, the Partnership Agreement
(as it may be amended and in effect from time to time) or
regulations of the Partnership, FTX or the Company,
(y) any order of any court, or any rule, regulation or
order of any other agency of government binding upon the
Partnership, FTX or the Company or any of their assets or
(z) any provisions of any indenture, agreement or other
instrument to which the Partnership, FTX or the Company is
a party, or by which the Partnership, FTX or the Company
or any of their 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)(z) 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 the Partnership, FTX or the Company, except for
the Mortgages and the FTX Security Agreement.
(c) Governmental Approval. No registration with or
consent or approval of, or other action by, any Federal,
state or other governmental agency, authority or
regulatory body is or will be required in connection with
the execution, delivery and performance of this Agreement
or any other Loan Document, the execution and delivery of
the Promissory Notes or the Borrowings hereunder, except
(i) such as have been made and obtained and are in full
force and effect and (ii) such security filings and
recordations as may be required in connection with the
grant of any Lien contemplated by the Mortgages.
(d) Enforceability. Each of this Agreement and the
other Loan Documents executed and delivered by the
Partnership constitutes (or, as to any Loan Document
contemplated hereby to be executed and delivered by the
Partnership at any future date, will constitute) a legal,
valid and binding obligation of the Partnership, in each
case enforceable in accordance with its terms (subject, as
to the enforcement of remedies against the Partnership, to
applicable bankruptcy, reorganization, insolvency,
moratorium and similar laws affecting creditors' rights
against the Partnership generally in connection with the
bankruptcy, reorganization or insolvency of the
Partnership or a moratorium or similar event relating to
the Partnership).
(e) Financial Statements. FTX has heretofore
furnished to each of the Banks consolidated balance sheets
and statements of operations and changes in retained
earnings and cash flow of the Company as of and for the
fiscal years ended December 31, 1993 and 1994, all audited
and certified by Xxxxxx Xxxxxxxx LLP, independent public
accountants, and included in the 1994 FM Form 10-K, and
unaudited consolidated balance sheets and statements of
operations and cash flow of the Company as of and for the
fiscal quarter ended March 31, 1995, included in the
Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995. In addition, the Partnership has
heretofore furnished to each of the Banks unaudited
consolidated balance sheets and statements of operations
and cash flow for the Partnership as of and for the fiscal
years ended December 31, 1993 and 1994, and for the fiscal
quarter ended March 31, 1995, all certified by the
Treasurer or another authorized Financial Officer of the
Partnership. All such balance sheets and statements of
operations and cash flow present fairly the financial
condition and results of operations of the Company, the
Partnership and their subsidiaries, as of the dates and
for the periods indicated. The financial statements
referred to in this Section 4.1(e) and the notes thereto
disclose all material liabilities, direct or contingent,
of the Company, the Partnership and their subsidiaries, as
of the dates thereof and which are required to be shown on
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) the Company,
(ii) the Partnership, (iii) the Company and its
subsidiaries taken as a whole or (iv) the Partnership and
the Subsidiaries taken as a whole.
(f) Litigation; Compliance with Laws, etc.
(i) Except as disclosed in Schedule VI hereto or in the
1994 FM Form 10-K and any subsequent reports filed as of
20 days prior to the date hereof 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 Partnership, threatened against or
affecting the Partnership or any Subsidiary or the
businesses, assets or rights of the Partnership or any
Subsidiary (i) which involve this Agreement, any other
Loan Document or any of the transactions contemplated
hereby or thereby or (ii) as to which there is a rea-
sonable possibility of an adverse determination and which,
if adversely determined, could, individually or in the
aggregate, materially impair the ability of the
Partnership to conduct its business substantially as
described in the 1994 FM Form 10-K, or materially and
adversely affect the business, assets, operations,
prospects or condition, financial or otherwise, of the
Partnership, or impair the validity or enforceability of,
or the ability of the Partnership to perform its
obligations under, this Agreement or any other Loan
Document.
(ii) Neither the Partnership 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 have a Material Adverse
Effect on the business, assets, operations or condition,
financial or otherwise, of the Partnership. Without
limitation of the foregoing, the Partnership and each
Subsidiary has complied with all Environmental Laws where
any such noncompliance could have a Material Adverse
Effect on the business, assets, operations or condition,
financial or otherwise, of the Partnership. Neither the
Partnership nor any Subsidiary has received notice of any
material failure so to comply. The Partnership's and the
Subsidiaries' plants do not handle any Hazardous Materials
in violation of any Environmental Law where any such
violation could have a Material Adverse Effect on the
business, assets, operations or condition, financial or
otherwise, of the Partnership. The Partnership and FTX
are aware of no events, conditions or circumstances
involving contaminants or employee health or safety that
could reasonably be expected to result in material
liability on the part of the Partnership or any
Subsidiary.
(g) Title, etc. The Partnership has good and
defensible title to its material properties, assets and
revenues (exclusive of oil, gas and other mineral
properties on which no development or production
activities following discovery of commercially exploitable
reserves are being conducted), free and clear of all Liens
except such as are permitted by Section 4.2(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 Partnership 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.
(h) Federal Reserve Regulations; Use of Proceeds.
(i) Neither the Partnership 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 imme-
diately, 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) The Partnership will use the proceeds of all
Loans made to it to refinance existing outstandings under
the Existing FM Credit Agreement and to finance general
partnership purposes of the Partnership and the
Subsidiaries, subject to and in accordance with operating
budgets to be reviewed and approved by the Required Banks.
(i) Taxes. The Partnership and the Subsidiaries have
filed or caused to be filed all Federal, state and local
tax and information 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 Partnership or
any Subsidiary is contesting in good faith by appropriate
proceedings, and with respect to which the Partnership or
such Subsidiary shall, to the extent required by GAAP,
have set aside on its books adequate reserves.
(j) Employee Benefit Plans. Each of the Borrower 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 Borrower 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) Environmental Matters. (1) The properties owned
or operated by the Borrower and the Subsidiaries (the
"Properties") and all operations of the Borrower and the
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
Borrower or the Subsidiaries, which Releases or threatened
Releases, in the aggregate, could reasonably be expected
to result in a Material Adverse Effect;
(3) neither the Borrower nor any of the Subsidiaries
has received any notice of an Environmental Claim in
connection with the Properties or the operations of the
Borrower or the Subsidiaries or with regard to any Person
whose liabilities for environmental matters the Borrower
or the 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 Borrower
or the 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
Borrower or the 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.
(5) The Partnership and the Subsidiaries do not have
any ownership or control rights in respect of the
properties listed on Schedule IV which could result in any
environmental or reclamation liability for the Partnership
and the Subsidiaries relating to such properties.
(l) Investment Company Act. Neither the Partnership
nor any Subsidiary is an "investment company" as defined
in, or subject to regulation under, the Investment Company
Act of 1940.
(m) Public Utility Holding Company Act. Neither the
Partnership 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.
(n) Subsidiaries. Schedule V constitutes a complete
and correct list as of the Closing Date or the date of any
update thereof required by Section 4.1(a)(12) of all the
Subsidiaries with at least $1,000,000 in total assets,
indicating the jurisdiction of incorporation or
organization of each such Subsidiary and the percentage of
voting shares or units owned on such date directly or
indirectly by the Partnership in each such Subsidiary.
The Partnership owns as of such date, free and clear of
all Liens (other than those expressly permitted by this
Agreement), the percentage of voting shares or units
outstanding of the Subsidiaries shown on Schedule V, and
all such shares or units are validly issued and fully
paid.
(o) Solvency. (i) The fair salable value of the
assets of the Partnership and the Subsidiaries will exceed
the amount that will be required to be paid on or in
respect of the Indebtedness and other obligations of the
Partnership and the Subsidiaries as they become absolute
and mature.
(ii) The Partnership and the Subsidiaries will not
have unreasonably small capital to carry out their
businesses as conducted or as proposed to be conducted.
(iii) The Partnership, on a consolidated basis, does
not intend to, and does not believe that it will, incur
Indebtedness and other obligations beyond its ability to
pay such Indebtedness and obligations as they mature
(taking into account the timing and amounts of cash to be
received by it and the amounts to be payable on or in
respect of such Indebtedness and obligations).
(p) Key Assets. Schedule III sets forth properties of
the Partnership constituting the Key Assets.
(q) No Material Misstatements. No information, report
(including any exhibit, schedule or other attachment
thereto or other document delivered in connection
therewith), financial statement, exhibit or schedule
prepared or furnished by the Borrower or the Subsidiaries
to the Administrative Agent or any Bank in connection with
this Agreement or any of the other Loan Documents or
included therein 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.
SECTION 3.2. Representations and Warranties of FTX.
As of the Funding Date, and each other date upon which such
representations and warranties are required to be made or
deemed made pursuant to Section 4.2(i), FTX represents and
warrants to each of the Banks as follows:
(a) Organization, Powers. FTX is duly organized,
validly existing and in good standing under the laws of
the State of Delaware, has the requisite power and
authority to own its property and assets and to carry on
its business as now conducted and 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 the condition, financial
or otherwise, of FTX. FTX has the power to execute,
deliver and perform its obligations under this Agreement,
the FM Intercreditor Agreement, the FTX Guaranty, the FTX
Security Agreement and any other Loan Document executed
and delivered or to be executed and delivered by it at any
time, to guarantee the Loans pursuant to the FTX Guaranty
and to countersign and accept the terms of the FTX
Intercreditor Agreement.
(b) Authorization. The execution, delivery and
performance of this Agreement (including, without limi-
tation, performance of obligations set forth in Sec-
tion 7.1), the FM Intercreditor Agreement, the FTX
Guaranty, the FTX Security Agreement and any other Loan
Documents executed and delivered or to be executed and
delivered by FTX at any time, the guarantee of the Loans
pursuant to the FTX Guaranty and the countersignature and
acceptance of the terms of the FTX Intercreditor Agreement
(i) have been duly authorized by all requisite corporate
and, if required, shareholder, action on the part of FTX
and (ii) will not (A) violate (x) any provision of law,
statute, rule or regulation or the certificate or articles
of incorporation or other constitutive documents or the
By-laws or regulations of FTX, (y) any order of any court,
or any rule, regulation or order of any other agency of
government binding upon FTX or (z) any provisions of any
indenture, agreement or other instrument to which FTX is a
party, or by which FTX or any of its 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)(z) 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 FTX, except pursuant to the FTX
Security Agreement.
(c) Governmental Approval. No registration with or
consent or approval of, or other action by, any Federal,
state or other governmental agency, authority or
regulatory body is or will be required in connection with
the execution, delivery and performance of this Agreement
or any other Loan Document, or the guarantee of the Loans
pursuant to the FTX Guaranty except (i) such as have been
made and obtained and are in full force and effect and
(ii) such security filings and recordations as may be
required in connection with the grant of any Lien under
the FTX Security Agreement.
(d) Enforceability. Each of this Agreement and the
other Loan Documents executed and delivered by FTX
constitutes (or, as to any Loan Document contemplated
hereby to be executed and delivered by FTX at any future
date, will constitute) a legal, valid and binding
obligation of FTX, in each case enforceable in accordance
with its terms (subject, as to the enforcement of remedies
against FTX, to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting
creditors' rights against FTX generally in connection with
the bankruptcy, reorganization or insolvency of FTX or a
moratorium or similar event relating to FTX).
(e) Litigation; Compliance with Laws; etc.
(i) Except as disclosed in the 1994 FTX Form 10-K and any
subsequent reports filed as of 20 days prior to the date
hereof 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 FTX,
threatened against or affecting FTX or any of its
subsidiaries or the businesses, assets or rights of FTX or
any of its subsidiaries (i) which involve this Agreement
or any other Loan Document or any of the transactions
contemplated hereby or thereby 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 FTX or
FRP to conduct its business substantially as now
conducted, or materially and adversely affect the
businesses, assets, operations, prospects or condition,
financial or otherwise, of FTX or FRP, or impair the
validity or enforceability of, or the ability of FTX to
perform its obligations under, this Agreement or any other
Loan Document.
(f) Representations Incorporated By Reference from the
FTX Credit Agreement. Section 3.1 of the FTX Credit
Agreement (other than paragraphs (a), (b), (c), (d),
(f)(i), (h)(ii) and (iii) and (p) thereof) is hereby
incorporated by reference herein with the same force and
effect as though fully set forth herein in its entirety
and shall be deemed made each time the representations in
this Section 3.2 are made or deemed made.
(g) Florida Environmental Liability. The Partnership
and the Subsidiaries do not have any ownership or control
rights in respect of the properties listed on Schedule IV
which could result in any environmental or reclamation
liability for the Partnership and the Subsidiaries
relating to such properties.
(h) No Material Misstatements. No information, report
(including any exhibit, schedule or other attachment
thereto or other document delivered in connection
therewith), financial statement, exhibit or schedule
prepared or furnished by FTX or its subsidiaries 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 &
Xxxxx in connection with the preparation of the
environmental due diligence summary memorandum referred to
in paragraph (m) of Article IV of the FTX Credit Agreement
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.
SECTION 3.3. Representations and Warranties of FCX.
As of the Funding Date, and each other date upon which such
representations and warranties are required to be made or
deemed made pursuant to Section 4.2(i), FCX represents and
warrants to each of the Banks as follows:
(a) Organization, Powers. FCX is duly organized,
validly existing and in good standing under the laws of
the State of Delaware and FI is duly organized and validly
existing under the laws of Indonesia and is duly
domesticated under the laws of the State of Delaware.
Each of FCX and FI has the requisite power and authority
to own its property and assets and to carry on its
business as now conducted and 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 the condition, financial
or otherwise, of FCX or FI. FCX has the power to execute,
deliver and perform its obligations under this Agreement,
the FM Intercreditor Agreement, the FCX Guaranty, the FCX
Pledge Agreements and any other Loan Document executed and
delivered or to be executed and delivered by it at any
time, to guarantee the Loans pursuant to the FCX Guaranty
and to countersign and accept the terms of the FCX
Intercreditor Agreement.
(b) Authorization. The execution, delivery and
performance of this Agreement, the FM Intercreditor
Agreement, the FCX Guaranty, the FCX Pledge Agreement and
any other Loan Documents executed and delivered or to be
executed and delivered by FCX at any time, the guarantee
of the Loans pursuant to the FCX Guaranty and the
countersignature and acceptance of the terms of the FCX
Intercreditor Agreement (i) have been duly authorized by
all requisite corporate and, if required, shareholder,
action on the part of FCX and (ii) will not (A) violate
(x) any provision of law, statute, rule or regulation or
the certificate or articles of incorporation or other
constitutive documents or the By-laws or regulations of
FCX, (y) any order of any court, or any rule, regulation
or order of any other agency of government binding upon
FCX or (z) any provisions of any indenture, agreement or
other instrument to which FCX is a party, or by which FCX
or any of its 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)(z) 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 FCX, except pursuant to the FCX Pledge
Agreements.
(c) Governmental Approval. No registration with or
consent or approval of, or other action by, any Federal,
state or other governmental agency, authority or
regulatory body is or will be required in connection with
the execution, delivery and performance of this Agreement
or any other Loan Document, or the guarantee of the Loans
pursuant to the FCX Guaranty except (i) such as have been
made and obtained and are in full force and effect and
(ii) such security filings and recordations as may be
required in connection with the grant of any Lien under
the FCX Pledge Agreements.
(d) Enforceability. Each of this Agreement and the
other Loan Documents executed and delivered by FCX
constitutes (or, as to any Loan Document contemplated
hereby to be executed and delivered by FCX at any future
date, will constitute) a legal, valid and binding
obligation of FCX, in each case enforceable in accordance
with its terms (subject, as to the enforcement of remedies
against FCX, to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting
creditors' rights against FCX generally in connection with
the bankruptcy, reorganization or insolvency of FCX or a
moratorium or similar event relating to FCX).
(e) Litigation; Compliance with Laws; etc.
(i) Except as disclosed in the 1994 FCX Form 10-K and any
subsequent reports filed as of 20 days prior to the date
hereof 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 FCX,
threatened against or affecting FCX or any of its
subsidiaries or the businesses, assets or rights of FCX or
any of its subsidiaries (i) which involve this Agreement
or any other Loan Document or any of the transactions
contemplated hereby or thereby 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 to perform its
obligations under, this Agreement or any other Loan
Document.
(f) Representations Incorporated By Reference from the
FCX Credit Agreement. Section 4.1 of the FCX Credit
Agreement (other than paragraphs (a), (b), (c), (d),
(f)(i), (h)(ii) and (iii) and (q) thereof and the first
sentence of paragraph (o) thereof) is hereby incorporated
by reference herein with the same force and effect as
though fully set forth herein in its entirety and shall be
deemed made each time the representations in this
Section 3.3 are made or deemed made.
(g) No Material Misstatements. No information, report
(including any exhibit, schedule or other attachment
thereto or other document delivered in connection
therewith), financial statement, exhibit or schedule
prepared or furnished by FCX or its subsidiaries 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 &
Xxxxx in connection with the preparation of the
environmental due diligence summary memorandum referred to
in Section 6.1(l) of the FCX Credit Agreement 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 IV
Covenants
SECTION 4.1. Affirmative Covenants of the Partnership.
Commencing as of the Funding Date and so long thereafter as
any Bank shall have any Commitment hereunder or the
principal of or interest on any Loan shall be unpaid, unless
the Required Banks shall have otherwise consented in
writing:
(a) Financial Statements, etc. The Partnership shall
furnish each Bank:
(1) within 95 days after the end of each fiscal
year of the Company, a consolidated balance sheet of
the Company and its subsidiaries (including the
Partnership) as at the close of such fiscal year and
consolidated statements of operations and of cash flow
of the Company and its subsidiaries for such year, with
the opinion thereon of Xxxxxx Xxxxxxxx LLP or other
independent public accountants of national standing
selected by the Company;
(2) within 50 days after the end of each of the
first three quarters of each fiscal year of the
Company, a consolidated balance sheet of the Company
and its subsidiaries as at the end of such quarter and
consolidated statements of operations of the Company
and its subsidiaries for such quarter and consolidated
statements of operations and of cash flow of the
Company 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 FTX;
(3) within 95 days after the end of each fiscal
year of the Partnership, a consolidated unaudited
balance sheet of the Partnership and the Subsidiaries
as at the close of such fiscal year and consolidated
unaudited statements of operations and of cash flow of
the Partnership and the Subsidiaries for such year,
certified by the Treasurer or other authorized
financial or accounting officer of FTX;
(4) within 50 days after the end of each of the
first three quarters of each fiscal year of the
Partnership, a consolidated balance sheet of the
Partnership and the Subsidiaries as at the end of such
quarter and consolidated statements of operations of
the Partnership and the Subsidiaries for such quarter
and consolidated statements of operations and of cash
flows of the Partnership and the Subsidiaries 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 FTX;
(5) at the time of the provision of the financial
statements referred to in clauses (1) through (4)
above, an update of Schedule V to correct, add or
delete any required information in reasonable detail
satisfactory to the Administrative Agent demonstrating
compliance with the covenant contained in
Section 4.2(o);
(6) promptly after their becoming available,
(a) copies of all financial statements, reports and
proxy statements which the Company shall have sent to
its shareholders generally, (b) copies of all
registration statements (excluding registration
statements relating to employee benefit plans) and
regular and periodic reports, if any, which the Company
shall have filed with the SEC or with any national
securities exchange 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 the Partnership or any of the
Subsidiaries;
(7) within 95 days after the end of each fiscal
year of the Partnership, a certificate by a Financial
Officer of the Partnership, to the effect that no Event
of Default or Default has occurred and is continuing,
or if an Event of Default or Default has occurred and
is continuing, specifying the nature and extent thereof
and the corrective action (if any) proposed to be taken
with respect thereto;
(8) promptly upon the occurrence of any ERISA
Event, Event of Default, Default or the commencement of
any proceeding regarding the Company, the Partnership
or any Subsidiary under any Federal or state bankruptcy
law, notice thereof, describing the same in reasonable
detail;
(9) promptly upon the occurrence of any
development that, in the judgment of the Partnership,
has resulted in, or could reasonably be anticipated to
result in, a material adverse effect on the business,
assets, operations or financial condition of the
Partnership or its ability to comply with its
obligations under the Loan Documents, notice thereof,
describing the same in reasonable detail;
(10) promptly after any sale of a Key Asset,
information identifying such Key Asset, the purchaser
and the purchase price therefor, together with any
other information requested by the Administrative
Agent;
(11) fifteen days prior to the grant of any
permitted Liens in favor of FTX or FCX, copies of all
agreements, documents or instruments pertaining thereto;
(12) promptly after the execution thereof and
subject to Section 4.2(b) and Section 4.4(b), a copy,
certified by a Responsible Officer, of each amendment,
supplement, change or waiver to any Material Agreement
(including, without limitation, to the Partnership
Agreement); and
(13) from time to time, such further information
regarding the business, affairs and financial condition
of the Company, the Partnership or any Subsidiary as
any Bank may reasonably request.
(b) Obligations, Taxes and Claims. The Partnership
shall, and shall cause each Subsidiary to, pay its
Indebtedness and other obligations promptly and in
accordance with their terms and pay and discharge all
taxes, assessments and governmental charges or levies
imposed upon it, 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
the Partnership 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 the Partnership or
such Subsidiary shall have, to the extent required by
GAAP, set aside on its books adequate reserves.
(c) Maintenance of Existence; Conduct of Business.
The Partnership shall preserve and maintain its
independent legal existence as a partnership; preserve and
maintain all its rights, privileges and franchises
necessary or desirable in the normal conduct of its
business; segregate its individual assets and business
functions from those of FTX, its subsidiaries, the Company
and its other subsidiaries, if any (which shall not
prohibit FTX from acting as managing general partner of
the Partnership), including without limitation segregating
its bank and investment accounts from those of FTX, its
subsidiaries, the Company or its other subsidiaries, if
any; maintain and preserve all property material to the
conduct of its business and keep such property in good
repair, working order and condition and from time to time
make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in
connection therewith may be properly conducted at all
times.
(d) Compliance with Applicable Laws. The Partnership
shall, and shall cause each Subsidiary 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 the
consolidated financial condition or business of the
Partnership and the Subsidiaries, except where contested
in good faith and by proper proceedings and with respect
to which the Partnership shall have, to the extent
required by GAAP, set aside on its books adequate
reserves.
(e) Litigation. The Partnership 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 Partnership or
any Subsidiary, except those which do not relate to the
Loan Documents and which, if adversely determined, would
not have a Material Adverse Effect.
(f) ERISA. The Borrower shall, and shall cause each
of the Subsidiaries to, comply with all material respects
with the applicable provisions of ERISA and the Code and
furnish to the Administrative Agent as soon as possible,
and in any event within 30 days after any Responsible
Officer of the Borrower 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
Borrower 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 the Borrower setting
forth details as to such ERISA Event and the action that
the Borrower proposes to take with respect thereto.
(g) Insurance. The Partnership and each 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 persons 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.
(h) Access to Premises and Records. The Partnership
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, if any, and to make
such excerpts from such records as such representatives
deem necessary and to discuss its affairs, finances and
accounts with its officers, if any, and the officers of
FTX, as managing general partner, and the Partnership's
independent certified public accountants or other parties
preparing consolidated or consolidating statements for the
Partnership or on its behalf.
(i) Compliance with Environmental Laws. The Borrower
shall comply, and cause the 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 neither the
Borrower nor any of the 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.
(j) Preparation of Environmental Reports. If a
default caused by reason of a breach of Section 3.1(k) or
4.1(i) shall have occurred and be continuing, at the
request of the Required Banks through the Administrative
Agent, the Borrower shall provide to Banks within 45 days
after such request, at the expense of the Borrower, 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.
SECTION 4.2. Negative Covenants of the Partnership.
Commencing as of the Funding Date and so long thereafter as
any Bank shall have any Commitment hereunder or the
principal of or interest on any Loan shall be unpaid, with-
out the prior written consent of the Required Banks:
(a) Conflicting Agreements. The Partnership shall
not, and shall not permit any Subsidiary to, enter into
any agreement containing any provision which (i) would be
violated or breached by the performance of its obligations
under any Loan Document or under any instrument or
document delivered or to be delivered by it hereunder or
thereunder or in connection herewith or therewith or
(ii) would prohibit or restrict the payments of dividends
or other distributions by any Subsidiary.
(b) Material Agreements. The Partnership shall not
amend, supplement, change, terminate or waive any material
provision of any Material Agreement unless the Banks shall
have received 30 days' notice of such amendment,
supplement, change, termination or waiver and the Required
Banks shall not have objected thereto on the ground that
it would, in their judgment, adversely affect the rights
or interests of the Banks; provided that, if the
Partnership shall not have given such 30 days' notice, the
Partnership shall not amend, supplement, change, terminate
or waive any material provision of any Material Agreement
unless the Required Banks shall have given their written
consent thereto.
(c) Mergers and Consolidations. The Partnership shall
not, and shall not permit any Subsidiary to, merge into or
consolidate with any other person or permit any other
person to merge into or consolidate with it, except that
if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred
and be continuing (i) any wholly owned Subsidiary may
liquidate into the Partnership in a transaction in which
the Partnership is the surviving entity, (ii) any wholly
owned Subsidiary may merge into or consolidate with any
other wholly owned Subsidiary in a transaction in which
the surviving entity is a wholly owned Subsidiary and no
person other than the Partnership or a wholly owned
Subsidiary receives any consideration and (iii) any
Subsidiary may merge into or consolidate with any other
person in a transaction in which the surviving person is a
Subsidiary of which the Partnership owns a percentage of
the equity, directly or indirectly, at least equal to the
percentage of the equity that it owned in the merging or
consolidating Subsidiary immediately prior to such merger
or consolidation and in which no person other than the
Partnership receives any consideration, except as
permitted by paragraph (D) of Section 4.2(e).
(d) Liens. The Partnership shall not, nor shall it
permit any Subsidiary to, create, incur, permit or suffer
to exist any Lien upon any of their respective properties
or assets (including without limitation stock or other
securities of, or ownership interest in, any person
including any Subsidiary) now owned or hereafter acquired
or on any income or revenues or rights in respect of any
thereof, except:
(i) materialmen's, suppliers', tax and other
similar Liens arising in the ordinary course of the
Partnership's or such 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 the Partnership's or such Subsidiary's
business or the ordinary operation of property or
assets and not incurred in connection with the
obtaining of any Indebtedness and which do not in the
aggregate materially detract from the value of their
assets or materially impair the use thereof in the
operation of their businesses;
(ii) 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 the Partnership or
any Subsidiary;
(iii) Liens of lessors of property (in such
capacity) leased by the Partnership, which Liens are
limited to the property leased thereunder;
(iv) Liens on property of the Partnership in favor
of FTX and FCX securing the obligations of the
Partnership under the FTX/FMPO Credit Agreement and the
Reimbursement Agreement on the real estate assets of
the Partnership (excluding the TCB Collateral) that are
subject to, and granted in accordance with and on the
terms of, the FM Intercreditor Agreement; and
(v) as of the exercise of either of the options
referred to in Sections 4.2(g)(ii)(A) and (B),
(A) Liens in favor of FTX and FCX on the TCB Borrower
Properties securing the Guaranties and (B) Liens in
favor of TCB on the TCB Collateral securing the
obligations of the TCB Borrower under the TCB Credit
Agreement.
(e) Investments, Loans, Advances and Acquisitions.
The Partnership shall not, and shall not permit any
Subsidiary to, (i) purchase, lease or otherwise acquire
(in one transaction or a series of transactions) all or
any substantial part of the assets of, (ii) purchase, hold
or acquire any capital stock, evidences of indebtedness or
other securities of, (iii) make or permit to exist any
loans or advances to or (iv) make or permit to exist any
investment or any other interest in, any other Person, or
contribute assets to any joint ventures with parties which
are not the Borrower or a Subsidiary, except:
(A) investments by the Partnership existing on the
Closing Date in the capital stock of the Subsidiaries;
(B) loans by the Partnership to the TCB Borrower
or the Circle C Subsidiary not in excess of the
interest expense payable by such entity on the TCB
Credit Agreement;
(C) (i) advances by the Partnership to the TCB
Borrower, the Circle C Subsidiary or any other Sub-
sidiary in the amount of such Subsidiary's reasonable
operating expenses (including development costs for the
Circle C Property); provided that such advances shall
be made only upon or after the incurrence of such
expenses and only to the extent utilized to pay such
expenses within thirty days of the date of any such
advance; and (ii) investments in joint ventures and
development arrangements, not in excess of an aggregate
amount of $10,000,000 for all such advances and
investments made pursuant to this clause (C);
(D) Permitted Investments; and
(E) if at the time thereof and after giving effect
thereto no Default or Event of Default shall have
occurred and be continuing, the Partnership may
acquire, for nominal consideration only, assets
constituting, or the capital stock of, TCB Borrower,
subject to 20 days' prior written notice to the Banks
of such acquisition describing the terms of such
acquisition and the prior approval of such terms of the
Required Banks.
(f) Distributions. The Partnership shall not, and
shall not permit any Subsidiary to, (i) pay, directly or
indirectly, or make any distribution (by reduction of
Partnership equity (including any option, warrant or other
right to acquire any Partnership equity), capital or
otherwise) or any dividend, whether in cash, property,
securities or a combination thereof, with respect to any
Partnership equity (including any option, warrant or other
right to acquire any Partnership equity), (ii) directly or
indirectly make any redemption, repurchase or repayment of
Partnership equity (including any option, warrant or other
right to acquire any Partnership equity), (iii) purchase,
redeem or acquire any capital stock of the Company (or any
option, warrant or other right to acquire any such capital
stock) or (iv) make any payment, redemption, repurchase or
other acquisition or retirement for value of any
Indebtedness of the Company (which shall not include any
Indebtedness of the Partnership or of any Subsidiary);
provided, however, that (i) any Subsidiary may declare and
pay dividends or make other distributions to the Partner-
ship and (ii) the Partnership may make such distributions
from time to time to the extent (but only to the extent)
required to enable the Company to pay (A) all reasonable
out-of-pocket expenses arising under the Administrative
Services Agreement (as it may be amended as permitted
hereby and in effect from time to time) which have become
due at or prior to the time of such distribution, (B) the
Company's actual current combined federal, state and local
cash tax liability (including estimated payments required
by applicable law) arising from or attributed to the
Company's Partnership equity interest, but only to the
extent such distributions are in fact utilized to pay such
taxes within 30 days of the date of any distribution, and
(C) all other reasonable and necessary general and
administrative cash expenses, not in excess of $2,000,000
per 12-month period, relating to the management of the
Company's Partnership equity interest.
(g) Indebtedness. Neither the Partnership nor any
Subsidiary shall incur, create, assume or permit to exist
any Indebtedness of any of them except:
(i) Indebtedness of the Partnership not to exceed
$68,000,000 in aggregate principal amount outstanding
on the date hereof incurred pursuant to the Pel-Tex
Agreements, but not any extensions, renewals or
replacements of such Indebtedness; and provided that no
payments on the principal amount of such Indebtedness
may be made, directly or indirectly, from proceeds of
the Loans;
(ii) in the event the Partnership shall exercise
its option pursuant to the Agreement dated as of Feb-
ruary 6, 1992, among Xxxxxx X. Xxxxxxxx (the sole
shareholder of the TCB Borrower), the Partnership (as
successor to Longhorn Properties Inc., a Delaware
corporation), and the TCB Borrower, to purchase all of
the authorized and issued capital stock of the TCB
Borrower, then the TCB Borrower may continue to be
obligated in respect of the outstanding Indebtedness
not in excess of $40,812,000 under the TCB Credit
Agreement, or in the event the Partnership shall
exercise its option pursuant to the Option Agreement
dated as of February 6, 1992, between the TCB Borrower
and Xxxxx X. Xxxxxxxx, as Trustee (and filed as a part
of such Exhibit), to cause a Subsidiary (the "Circle C
Subsidiary") to purchase the assets of the TCB Borrower
referred to as the "Property" in such Option Agreement
(the "Circle C Property"), then such Subsidiary may
assume the outstanding Indebtedness not in excess of
$40,812,000 under the TCB Credit Agreement and the
related obligations to FTX and FCX in respect of the
Guaranties of the TCB Credit Agreement; and any
extensions, renewals or replacements of such
Indebtedness, in any case;
(iii) Indebtedness owed by the Partnership to FTX
and/or FCX for loans made under the FTX/FMPO Credit
Agreement so long as no Default or Event of Default has
occurred and is continuing; provided that all such
loans other than the FTX Term Loan (as defined below)
may be incurred only as subordinated upon the
Subordination Terms to the Senior Debt (as defined in
the Subordination Terms) for the benefit of the holders
of such Senior Debt (which Subordination Terms shall be
contained in or attached to such promissory notes and
to which FTX or FCX, as applicable, shall evidence its
agreement by countersigning such promissory notes)
subject to and in accordance with the FM Intercreditor
Agreement and not permit payments of principal or
interest, prior to the Maturity Date and the payment of
all principal of and interest on the Loans and all fees
and other expenses or amounts owed hereunder and
termination of the Commitments;
(iv) Indebtedness evidenced by the Promissory
Notes; and
(v) Unsecured Indebtedness of the Partnership not
otherwise permitted by the foregoing clauses of this
Section 4.2(g) incurred in the ordinary course of
business, not for borrowed money, including letters of
credit in favor of municipalities to facilitate the
construction of infrastructure (such as utilities) for
the Mortgaged Properties.
The Partnership may borrow up to $10,000,000 in aggregate
principal amount (the "FTX Term Loan") from time to time
under clause (iii) above on an unsubordinated term basis
and may repay any or all of such amount borrowed, from
proceeds of Loans or otherwise.
(h) Sale and Lease-Back Transactions. The Partnership
shall not, and shall not permit any Subsidiary to, enter
into any arrangement, directly or indirectly, with any
person whereby it shall sell or transfer any property,
real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or
lease such property or other property which it intends to
use for substantially the same purpose or purposes as the
property being sold or transferred.
(i) Transactions with Affiliates. The Partnership
shall not, and shall not permit any Subsidiary to, sell or
transfer any property or assets to, purchase or acquire
any property or assets from, perform any services for or
otherwise engage in any other transactions with, any
Affiliate of the Partnership, except that as long as no
Default or Event of Default shall have occurred and be
continuing, the Partnership or any Subsidiary may engage
in any of the foregoing transactions in the ordinary
course of business on an arm's-length and fair value
basis; provided that the foregoing shall not prohibit
(i) the joint venture between the Partnership and IMC-
Agrico providing for the joint development of certain
Florida real estate pursuant to, and on the terms of, the
Florida Joint Venture Agreement (as it may be amended as
permitted hereby and in effect from time to time),
(ii) FTX from making permitted advances to the Partnership
pursuant to the FTX/FMPO Credit Agreement (as it may be
amended as permitted hereby and in effect from time to
time), (iii) FTX from acting as the managing general
partner of the Partnership or (iv) any other transactions
expressly permitted by this Agreement, including pursuant
to Section 4.2(e) or the Administrative Services
Agreement.
(j) Fiscal Year. The Partnership shall not change its
fiscal year to end on any date other than December 31.
(k) Business of Partnership and Subsidiaries. The
Partnership shall not, and shall not permit any Subsidiary
to, engage at any time in any business or business
activity other than as described in the 1994 FM Form 10-K
and business activities reasonably incidental thereto.
(l) Federal Reserve Regulations; Use of Proceeds. The
Partnership will not (i) 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
of the Board, (ii) take any action at any time that would
cause the representation and warranty contained in
Section 3.2(h) at any time to be other than true and
correct, (iii) use any part of the proceeds of any Loan,
directly or indirectly, immediately, incidentally or
ultimately, to purchase or carry Margin Stock or to refund
indebtedness originally incurred for such purpose or (iv)
directly or indirectly use the proceeds of any Borrowing
(x) to repay principal on any Indebtedness (subordinate or
otherwise) other than the FTX Term Loan so long as no
default or event of default has occurred or is continuing
or would result therefrom or (y) to purchase any
investments or properties except to the extent permitted
by Section 4.2(e)(C).
(m) Certain Debt Agreements. The Partnership shall
not, without the prior written consent thereto of the
Required Banks, amend, supplement or change in any
material manner (including any earlier maturity date or
amortization schedule) any of the terms or provisions of
any agreement, note or other instrument governing or
evidencing any of the Indebtedness referred to in para-
graphs (i) through (iii) of Section 4.2(g) or, with
respect to the Indebtedness referred to in paragraph (iv)
of such Section, any of the terms and provisions
(including without limitation the Subordination Terms)
required by such paragraph or the FM Intercreditor
Agreement.
(n) Swaps. Neither the Partnership nor any Subsidiary
shall enter into, or be obligated in respect of, any Hedge
Agreement; provided that (i) the Partnership may enter
into any Permitted Swap so long as the aggregate notional
amounts under all such Permitted Swaps shall not at any
time be in excess of the amount of the related
Indebtedness (that bears interest at a floating rate)
permitted under Section 4.2(g) and outstanding at such
time and (ii) upon the exercise by the Partnership of
either of the options referred to in Section 4.2(g)(ii),
the resulting Subsidiary obligated for the Indebtedness
referred to under such Section 4.2(g)(ii) or the Part-
nership may enter into any Permitted Swap so long as the
aggregate notional amount under such Permitted Swap shall
not at any time be in excess of the amount of Indebtedness
(that bears interest at a floating rate) permitted under
such Section 4.2(g)(ii) and outstanding at such time;
provided further that no Permitted Swap shall be secured
unless all the Banks consent thereto.
(o) Assets of Subsidiaries. The Partnership shall not
transfer any Key Assets to the Subsidiaries or permit the
Subsidiaries, collectively, to own or hold any assets at
any time other than (i) those assets owned by the
Subsidiaries on the Closing Date, (ii) investments
permitted by Section 4.2(e)(D) and (iii) assets acquired
from the TCB Borrower as permitted by Section 4.2(g)(ii).
SECTION 4.3. Affirmative Covenants of FTX. So long as
any Bank shall have any Commitment hereunder or the
principal of or interest on any Loan shall be unpaid, unless
the Required Banks shall otherwise consent in writing:
(a) Affirmative Covenants Incorporated by Reference
from the FTX Credit Agreement. FTX will at all times be
in full compliance with Section 5.1 of the FTX Credit
Agreement, which is hereby incorporated by reference
herein with the same force and effect as though fully set
forth herein in its entirety; provided that the references
therein to "Default", "Event of Default", "Bank" and
"Agents" or "Agent" are replaced herein with references to
Default, Event of Default, Bank and the Agents or Agent
hereunder, respectively.
(b) Partnership's Covenants and FTX. FTX, in its
capacity as managing general partner of the Partnership,
shall cause the Partnership to perform and to comply with
its covenants set forth in Sections 4.1 and 4.2 and to
otherwise act in accordance with this Agreement. FTX
shall at all times be a general partner of the Partnership
and the sole managing general partner of the Partnership
and shall at all times generally carry out the functions
of the managing general partner of the Partnership;
provided that the foregoing shall not prevent FTX from
delegating to any of its subsidiaries FTX's duties as the
managing general partner of the Partnership.
SECTION 4.4. Negative Covenants of FTX. So long as
any Bank shall have any Commitment hereunder or the prin-
cipal of or interest on any Loan shall be unpaid, without
the prior written consent of the Required Banks:
(a) Negative Covenants Incorporated by Reference from
the FTX Credit Agreement. FTX will not at any time fail
to be in full compliance with Section 5.2 of the FTX
Credit Agreement, which is hereby incorporated by
reference herein with the same force and effect as though
fully set forth herein in its entirety; provided that the
references therein to "this Agreement", "this Agreement,
the Pledge Agreement or the Security Agreement",
"Default", "Event of Default", "Banks", "Required Banks"
and "Agents" or "Agent" are replaced herein with
references to this Agreement, this Agreement or any other
Loan Document, Default, Event of Default, Banks, Required
Banks and Agents or Agent hereunder, respectively.
(b) Material Agreements. FTX shall not amend,
supplement, change, terminate or waive any material
provision of any Material Agreement unless the Banks shall
have received 30 days' notice of such amendment,
supplement, change, termination or waiver and the Required
Banks shall not have objected thereto on the ground that
it would, in their judgment, adversely affect the rights
or interests of the Banks; provided that if FTX shall not
have given such 30 days' notice, FTX shall not amend,
supplement, change, terminate or waive any material
provision of any Material Agreement unless the Required
Banks shall have given their written consent thereto.
SECTION 4.5. Affirmative Covenants of FCX. So long as
any Bank shall have any Commitment hereunder or the
principal of or interest on any Loan shall be unpaid, unless
the Required Banks shall otherwise consent in writing, FCX
will at all times be in full compliance with Section 5.1 of
the FCX Credit Agreement, which is hereby incorporated by
reference herein with the same force and effect as though
fully set forth herein in its entirety; provided that the
references therein to "Default", "Event of Default", "Bank"
and "Agents" or "Agent" are replaced herein with references
to Default, Event of Default, Bank and the Agents or Agent
hereunder, respectively.
SECTION 4.6. Negative Covenants of FCX. So long as
any Bank shall have any Commitment hereunder or the prin-
cipal of or interest on any Loan shall be unpaid, without
the prior written consent of the Required Banks, FCX will
not at any time fail to be in full compliance with
Section 5.2 of the FCX Credit Agreement, which is hereby
incorporated by reference herein with the same force and
effect as though fully set forth herein in its entirety;
provided that the references therein to "this Agreement",
"this Agreement, the Pledge Agreement or the Security
Agreement", "Default", "Event of Default", "Banks",
"Required Banks" and "Agents" or "Agent" are replaced herein
with references to this Agreement, this Agreement or any
other Loan Document, Default, Event of Default, Banks,
Required Banks and Agents or Agent hereunder, respectively.
ARTICLE V
Conditions of Credit
SECTION 5.1. Conditions Precedent to Initial
Borrowing. On the Funding Date, and as conditions precedent
to the initial Borrowing by the Borrower to occur on such
date, each of the following conditions shall have been
satisfied:
(a) Each Bank shall have received the following:
(i) a copy of the Certificates of Incorporation of
FTX and FCX as in effect on the date hereof and each
amendment, if any, subsequent thereto, certified as of
a recent date by the Secretary of State of the State of
Delaware 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
as of a recent date, listing the Certificate of
Incorporation of FTX and FCX as in effect on such
recent date and each subsequent amendment thereto on
file in his office and stating that such documents are
the only charter documents of FTX and FCX on file in
his office and that FTX and FCX are duly incorporated
and in good standing in the State of Delaware, has
filed all franchise tax returns and has paid all
franchise taxes required by law to be filed and paid by
FTX and FCX to the date of his Certificate;
(iii) the signed Certificate of the Secretary or
an Assistant Secretary of FTX, dated the Closing Date
and certifying, among other things, (A) a true and
correct copy of resolutions adopted by the Board of
Directors of FTX authorizing the making and performance
of this Agreement and the other Loan Documents (includ-
ing the FTX Guaranty) executed and delivered or to be
executed and delivered, as applicable, by FTX, and the
countersignature and acceptance by FTX of the FTX
Intercreditor Agreement, (B) that such resolutions have
not been modified, rescinded or amended and are in full
force and effect, (C) a true and correct copy of the
By-laws of FTX as in effect on the Closing Date and at
all times since a date prior to the date of the
resolutions described in (A) above, (D) that the
Certificate of Incorporation of FTX has not been
amended since the date of the last amendment shown on
the certificate referred to in (ii) above, and (E) the
incumbency and specimen signatures of each officer of
FTX executing the foregoing documents and any other
documents delivered to the Banks in connection herewith
on behalf of FTX; and a certificate of another officer
of FTX as to the incumbency and signature of such
Secretary or Assistant Secretary;
(iv) the signed Certificate of the Secretary or an
Assistant Secretary of FCX, dated the 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
Agreement and the other Loan Documents (including the
FCX Guaranty) executed and delivered or to be executed
and delivered, as applicable, by FCX, and the
countersignature and acceptance by FCX of the FCX
Intercreditor Agreement, (B) that such resolutions have
not been modified, rescinded or amended and are in full
force and effect, (C) a true and correct copy of the
By-laws of FCX as in effect on the Closing Date and at
all times since a date prior to the date of the
resolutions described in (A) above, (D) that the
Certificate of Incorporation of FCX has not been
amended since the date of the last amendment shown on
the certificate referred to in (ii) above, and (E) the
incumbency and specimen signatures of each officer of
FCX executing the foregoing documents and any other
documents delivered to the Banks in connection herewith
on behalf of FCX; and a certificate of another officer
of FCX as to the incumbency and signature of such
Secretary or Assistant Secretary;
(v) the signed Certificate of (A) the Chairman of
the Board, the President or any executive or senior
vice president and (B) the Chief Financial Officer, the
Controller or the Treasurer of FTX, dated the Closing
Date and certifying that (1) the representations and
warranties of FTX contained herein are true and correct
as of the Closing Date and (2) that there exists no
Default or Event of Default relating to FTX or the
Partnership; and
(vi) the signed Certificate of (A) the Chairman of
the Board, the President or any executive or senior
vice president and (B) the Chief Financial Officer, the
Controller or the Treasurer of FCX, dated the Closing
Date and certifying that (1) the representations and
warranties of FCX contained herein are true and correct
as of the Closing Date and (2) that there exists no
Default or Event of Default relating to FCX.
(b) The Administrative Agent shall have received all
fees and other amounts due and payable to the Agents or
the Banks on or prior to the Closing Date.
(c) All outstanding loans under the Credit Agreement
dated as of June 11, 1992, among the Partnership, FTX, the
banks named therein and Chemical Bank, as agent and as
collateral agent (the "Existing FM Credit Agreement")
shall have been repaid in full and the Existing FM Credit
Agreement and the commitments of the banks party thereto
shall have been terminated.
(d) The Administrative Agent shall have received fully
executed copies of the Guaranties and the Material
Agreements, all of which shall be in full force and
effect.
(e) Each Bank shall have received the signed
certificate of (i) the Chairman of the Board, the
President or any executive or senior vice president and
(ii) the Chief Financial Officer, the Controller or the
Treasurer of both FTX and the Partnership (or, if there
shall be no such officers of the Partnership appointed, of
FTX as managing general partner of the Partnership), dated
the Funding Date and confirming compliance with the
conditions precedent in this Section.
(f) Each Bank shall have received the favorable
written opinions of (i) the General Counsel of FTX and FCX
and (ii) Xxxxx Xxxx & Xxxxxxxx, each dated the Funding
Date, addressed to the Banks, substantially in the forms
of Exhibits F and G, respectively, covering such matters
related to the transactions contemplated hereby as the
Administrative Agent may request and otherwise
satisfactory to Cravath, Swaine & Xxxxx, counsel for the
Agents. FTX and the Partnership recognize that the Banks
are relying on such opinions in extending credit pursuant
to this Agreement, and FTX and the Partnership hereby
direct such counsel to deliver such opinions to the Banks.
(g) Each Bank shall have received (i) a certificate of
the Secretary or an Assistant Secretary of the Partnership
(or, if there shall be no such officer appointed, of FTX
as managing general partner of the Partnership), dated the
Funding Date and certifying (A) that attached thereto are
true and complete copies of the Partnership Agreement and
all other constitutive documents, if any, of the
Partnership as in effect on the date of such certificate
and at all times since the resolution of the Partnership
described in item (B) below, (B) that attached thereto is
a true and complete copy of a resolution or similar
authorization adopted by FTX, as managing general partner
of the Partnership, authorizing the execution, delivery
and performance of this Agreement and the other Loan
Documents executed and delivered or to be executed and
delivered, as applicable, by the Partnership, the
countersignature and acceptance by the Partnership of the
FM Intercreditor Agreement and the Borrowings hereunder by
the Partnership, and that such resolution or authorization
has not been modified, rescinded or amended and is in full
force and effect and (C) as to the incumbency and specimen
signature of each officer executing on behalf of the
Partnership the foregoing documents and any other document
delivered or to be delivered in connection herewith or
therewith; (ii) a certificate of another officer of the
Partnership (or, if there shall be no such officer
appointed, of FTX as managing general partner of the
Partnership) as to the incumbency and signature of such
Secretary or Assistant Secretary; and (iii) such other
instruments and documents as any Bank or Cravath, Swaine &
Xxxxx, counsel for the Agents, may reasonably request.
(h) Each Bank shall have received a Promissory Note,
each duly executed by the Partnership, payable to such
Bank's order and otherwise complying with the provisions
of Section 2.4.
(i) The FM Intercreditor Agreement, the FCX
Intercreditor Agreement and the FTX Intercreditor
Agreement shall each have been executed and delivered by
all parties thereto other than the Administrative Agent
and, in the case of the FM Intercreditor Agreement, the FM
Collateral Agent, and countersigned and delivered by FTX,
FCX or the Partnership, as applicable, and the Agents and
each Bank shall have received a copy of such Intercreditor
Documents.
(j) There shall be no proceeding for the dissolution
or liquidation of the Partnership or any proceeding to
rescind the Partnership Agreement or the existence of the
Partnership which is pending or, to the knowledge of FTX
or the Partnership, threatened against or affecting the
Partnership.
(k) All legal matters incident to this Agreement, the
other Loan Documents and the Borrowings hereunder shall be
satisfactory to Cravath, Swaine & Xxxxx, counsel for the
Agents.
By its execution and delivery of this Agreement, and unless
prior to the Funding Date it shall have provided written
notice to the Administrative Agent and FTX indicating
otherwise, each Bank has evidenced its satisfaction with
each matter set forth in this Section requiring satisfaction
on its part.
SECTION 5.2. Conditions Precedent to Each Borrowing.
Each Borrowing shall be subject to the following conditions
precedent:
(a) the representations and warranties on the part of
the Partnership contained in Section 3.1, on the part of
FTX contained in Section 3.2 and on the part of FCX
contained in Section 3.3 shall be true and correct in all
material respects at and as of the date of such Borrowing
as though made on and as of such date;
(b) the Administrative Agent shall have received a
notice of such Borrowing as required by Section 2.3; and
(c) no Event of Default or Default shall have occurred
and be continuing on the date of such Borrowing or would
result from such Borrowing.
SECTION 5.3. Representations and Warranties with
Respect to Borrowings. Each Borrowing shall be deemed a
representation and warranty by FTX and the Partnership,
jointly and severally, that the conditions precedent to each
such Borrowing, unless otherwise waived in accordance
herewith, shall have been satisfied as of the date of such
Borrowing.
ARTICLE VI
Events of Default
SECTION 6.1. 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 (whether at the due date thereof, at a date fixed for
prepayment thereof, by acceleration thereof or otherwise)
of any principal of any Promissory Note;
(b) default for three or more days in the payment when
due of any interest on any Promissory Note or of any other
amount payable under this Agreement or any other Loan
Document;
(c) any representation or warranty made or deemed made
in or in connection with this Agreement, any other Loan
Document or in any certificate, report, financial
statement, letter or other writing or instrument furnished
or delivered to the Agents or any Bank pursuant hereto or
thereto shall prove to have been incorrect in any material
respect when made, effective or reaffirmed and repeated,
as the case may be;
(d) default in the due observance or performance of any
covenant, condition or agreement in Section 4.1(a)(8), the
first clause of Section 4.1(c), Section 4.2 (other than
paragraph (j) thereof), Section 4.4 (other than
Section 5.2(k) of the FTX Credit Agreement, as such
Section is incorporated by reference under
Section 4.4(a)), Section 4.6 (other than Section 5.2(k) of
the FCX Credit Agreement as such Section is incorporated
by reference under Section 4.6) or Section 4.3(b) as it
relates to any of the foregoing;
(e) default by FTX or FCX in the due observance or
performance of any covenant, condition or agreement
incorporated in Section 4.3(a) or contained in Section 4.5
which shall remain unremedied for 30 days after written
notice thereof shall have been given to the Borrower by
any Bank;
(f) default by FTX or the Partnership in the due
observance or performance of any other covenant, condition
or agreement contained in any Loan Document which shall
remain unremedied for 10 days after written notice thereof
shall have been given to the Borrower by any Bank;
(g) any Specified Entity 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,
(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 such Specified Entity 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 debt as they become due or (vii) take any
action for the purpose of effecting any of the foregoing;
(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
any Specified Entity, or of a substantial part of the
property or assets of any Specified Entity, 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, (ii) the
appointment of a receiver, trustee, custodian,
sequestrator or similar official for any Specified Entity
or for a substantial part of the property or assets of any
Specified Entity or (iii) the winding up or liquidation of
any Specified Entity; 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;
(i) default shall be made with respect to (x) Hedge
Agreements of any Specified Entity or (y) any Indebtedness
of any Specified Entity if the effect of any such default
shall be to accelerate, or to permit the holder or obligee
of any such obligations or Indebtedness (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
such Indebtedness or the payment of any net termination
value in respect of Hedge Agreements, as applicable, in an
aggregate amount in excess of the Threshold Amount; or any
payment, regardless of amount, of (A) net termination
value on any such obligation in respect of Hedge
Agreements and/or (B) any Indebtedness of any Specified
Entity in an aggregate principal amount (or in the case of
a Hedge Agreement, net termination value) in excess of the
Threshold Amount, 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 Indebtedness or other
obligation);
(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 FTX, FCX or the Borrower and/or
any Restricted Subsidiary of FCX or FTX and/or the
Borrower's ERISA Affiliates in an aggregate amount
exceeding the Threshold Amount or requires payments
exceeding the Threshold Amount in any year;
(k) any security interest purported to be created by
any Security Agreement shall cease to be, or shall be
asserted by the Borrower, FTX, FCX 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
FTX Collateral Agent or the FCX Collateral Agent to
maintain possession of any certificates representing
securities pledged under the Security Agreements to the
extent that such pledged securities are certificated
securities;
(l) a final judgment for the payment of money shall be
rendered by a court or other tribunal against any
Specified Entity in excess of the Threshold Amount 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 any Specified Entity to enforce any such
judgment;
(m) the Partnership Agreement (as it may be amended and
in effect from time to time) (or any successor agreement
pursuant to which FTX is appointed and authorized to act
as the managing general partner of the Partnership) shall
cease to be, or shall be asserted by FTX not to be, in
full force and effect and enforceable in all material
respects in accordance with its terms;
(n) the FTX Guaranty, the FCX Guaranty or any Loan
Document shall cease to be, or shall be asserted by FTX,
FCX or the Partnership or any of their Affiliates not to
be, in full force and effect and enforceable in all
material respects in accordance with its terms; or
(o) there shall have occurred a Change in Control;
then, and in any such event (other than an event with
respect to FTX, FCX, FRP, FI or the Partnership 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 telecopy notice to the Borrower, take one or
more of the following actions at the same or different
times: (i) declare the Commitments to be terminated,
whereupon they shall forthwith terminate; (ii) declare all
sums then owing by the Borrower 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 Borrower, anything contained herein,
in any other Loan Document or in any Intercreditor Document
to the contrary notwithstanding or (iii) exercise (or cause
the Collateral Agents to exercise) any or all the remedies
then available under the Security Agreements; and upon the
occurrence of any event with respect to FTX, FCX, FRP, FI or
the Partnership described in paragraph (g) or (h) of this
Section, all sums then owing by the Borrower under the
Promissory Notes or otherwise owing hereunder shall, without
any declaration or other action by any Bank or the Agents
hereunder, be immediately due and payable and all
Commitments hereunder shall be immediately terminated
without presentment, demand, protest or notice of any kind,
all of which are hereby expressly waived by the Borrower,
anything contained herein, in any other Loan Document or in
any other Intercreditor Document to the contrary
notwithstanding and the Administrative Agent may, and at the
request of the Required Banks shall, exercise any or all of
the remedies then available under the Security Agreements.
Promptly following the making of any such declaration, the
Administrative Agent shall give notice thereof to the
Borrower but failure to do so shall not impair, under any
circumstances, the effect of such declaration.
ARTICLE VII
FTX Undertaking
Section 7.1. FTX Undertaking. In addition to and not
in derogation from its obligations under the FTX Guaranty,
FTX hereby agrees that it shall be jointly and severally
liable with the Borrower for each of the Partnership
Obligations (other than principal and interest on the Loans,
with respect to which FTX has guaranteed a certain amount
thereof with respect to the Loans pursuant to the FTX
Guaranty). FTX agrees that it shall pay on demand any such
Partnership Obligations for which it is liable pursuant to
this Section 7.1 which has remained unpaid by the Borrower
for five Business Days after such amount is due or demanded
from the Borrower; provided that if an event referred to in
Section 6.1(g) or (h) has occurred with respect to the
Borrower, such amounts shall be payable on demand by FTX
without the necessity of any demand on the Borrower. The
obligations of FTX under this Section 7.1 shall be deemed to
be a guarantee of payment and not of collection. Upon
payment by FTX of any sums to a Bank or an Agent as provided
above in this Section 7.1, all rights of FTX against the
Partnership 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
payment in full of all the Partnership Obligations to the
Banks and the Agents and shall not be exercised by FTX prior
to payment in full of all Partnership Obligations and
termination of the Commitments. If any amount shall be paid
to FTX on account of any amount paid by FTX pursuant to this
guarantee or otherwise at any time when all the Partnership
Obligations shall not be paid in full, such amount shall be
held in trust by FTX for the benefit of the Agent, and the
Banks and shall forthwith be paid to the Administrative
Agent to be credited and applied to the Partnership
Obligations, whether matured or unmatured. At such time as
all Partnership Obligations owing to such bank have been
paid in full and its Commitment terminated, each Bank shall,
in a reasonable manner, assign (subject to the continued
effectiveness and the reinstatement provided for above) the
amount of the Partnership Obligations owed to it and paid by
FTX pursuant to this Section 7.1 to FTX, such assignment to
be pro tanto to the extent to which the Partnership
Obligations in question were discharged by FTX, or make such
other disposition thereof as FTX shall reasonably direct
(all without any representation or warranty by, or any
recourse to, such Bank).
ARTICLE VIII
The Agents
SECTION 8.1. The Agents. (a) For convenience of
administration and to expedite the transactions contemplated
by this Agreement, Chemical is hereby appointed as
Administrative Agent, FTX Collateral Agent and FCX
Collateral Agent for the Banks under this Agreement and the
Security Agreements and Chase is hereby appointed as the
Documentary Agent for the Banks under this Agreement. None
of the Agents shall have any duties or responsibilities with
respect hereto except those expressly set forth herein.
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 each of
the Banks to the Borrower of any Event of Default specified
in this Agreement of which the Administrative Agent has
actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Bank copies of all
notices, financial statements and other materials delivered
by the Borrower pursuant to this Agreement as received by
the Administrative Agent. Without limiting the generality
of the foregoing, the Collateral Agents are hereby expressly
authorized to execute any and all documents (including
releases) with respect to the Collateral and the rights of
the secured parties with respect thereto, as contemplated by
and in accordance with the provisions of this Agreement and
the Security Agreements. Each of the Agents 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 each Collateral
Agent to enter, on behalf of each of them, into the
respective Intercreditor Agreement and Security Agreements
as contemplated pursuant to this Agreement.
(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 Borrower 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 9.3. 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 Borrower 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
Borrower 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 Borrower for any costs, liabilities or
expenses incurred in such capacity, each Bank agrees (i) to
reimburse the Agents, on demand (in the amount of its
Applicable Percentage hereunder) of any expenses incurred
for the benefit of the Banks by the Agents, 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 and any of its
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 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 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 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 Borrower
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 Borrower. Upon any such resignation, the Required Banks
shall have the right to appoint, and the Borrower shall have
the right to approve (such approval not to be unreasonably
withheld or delayed) a successor Administrative Agent,
Collateral Agent or Documentary Agent, as the case may be.
If no successor Agent, 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, 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, Collateral Agent or
Documentary Agent hereunder by a successor Administrative
Agent, Collateral Agent or Documentary Agent, as the case
may be, such successor Administrative Agent, 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
be discharged from its duties and obligations hereunder.
After any such retiring Agent's resignation hereunder as
Administrative Agent, Collateral Agent or Documentary Agent,
as applicable, the provisions of this Article VIII and
Section 9.4 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, 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 each Collateral Agent
in the performance of its duties as may be reasonably
requested by such Collateral Agent from time to time.
(g) The obligations of the Administrative Agent, each
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 a Bank serves in more than one agent
capacity, such Bank shall be responsible for the acts and
omissions relating to each such agency function.
(h) Without the prior written consent of the Required
Banks, the Administrative Agent and each Collateral Agent
will not consent to any modification, supplement or waiver
of any Intercreditor Agreement or, except to the extent
required by an Intercreditor Agreement, the related Security
Agreement.
(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 informa-
tion 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.
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices. Notices and other
communications 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; provided that notices
by or to the Borrower may be given by or to FTX as its
general partner. 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 delivered by any
telecopy, telegraphic or telex communications equipment or
three days after being sent by registered or certified mail,
postage prepaid, return receipt requested, in each case
addressed to such party as provided in this Section 9.1 or
in accordance with the latest unrevoked direction from such
party.
SECTION 9.2. Survival of Agreement. All covenants,
agreements, representations and warranties made by the
Borrower or the Guarantors herein and in the certificates or
other instruments prepared or delivered in connection with
this Agreement or any other Loan Document shall be
considered to have been relied upon by the Banks and the
Agents 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 Note, any
Commitment Fee or any other fee or amount payable under the
Loan Documents is outstanding and unpaid and so long as the
Commitments have not been terminated.
SECTION 9.3. Successors and Assigns; Participation;
Purchasing Banks. (a) This Agreement shall be binding upon
and inure to the benefit of the Borrower, FTX, FCX, the
Banks, the Agents, all future holders of the Promissory
Notes, and their respective successors and assigns, except
that none of the Borrower, FTX nor 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 Borrower 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 Borrower 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 2.15.
The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.11, 2.12, 2.13, 2.15,
2.17 and 9.5 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 9.3(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 Borrower's 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
Borrower, such consent not to be unreasonably withheld (it
being understood that the Borrower may withhold its 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 2.11 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 Borrower 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 9.3(e)
and an Administrative Questionnaire for the Purchasing Bank
if it is not already a Bank. Assignments shall be by
novation. Upon such execution, delivery and recording (and,
if required, consent of the Borrower 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, the 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
Borrower marked "canceled".
(d) The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, 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 Borrower 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 Borrower.
(f) Subject to Section 9.15, the Borrower and the
Guarantors authorizes 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
Guarantors, the Borrower and their Affiliates which has been
delivered to such Bank by or on behalf of the Borrower
pursuant to this Agreement or which has been delivered to
such Bank by or on behalf of the Borrower in connection with
such Bank's credit evaluation of the Borrower, the
Guarantors and their Affiliates prior to becoming a party to
this Agreement.
(g) If, pursuant to this Section 9.3, 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 (x) 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 Borrower
and the Administrative Agent from and against any tax,
interest, penalty or other expense that the Borrower and the
Administrative Agent may incur as a consequence of any
failure to withhold applicable United States taxes 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 Borrower or any Subsidiary or the
performance or observance by the Guarantors, the Borrower 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 to
exercise such respective powers under this Agreement and the
other Loan Documents as are delegated to the Agents 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.
SECTION 9.4. Expenses of the Banks; Indemnity.
(a) The Borrower and FTX, jointly and severally, agree 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 & Xxxxx, special
counsel for the Agents, and, in connection with such
enforcement or protection, the reasonable fees and
disbursements of other counsel for any Bank. The Borrower
and FTX, jointly and severally, further agree that they
shall indemnify the Banks 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 Borrower
and FTX, jointly and severally, agree to pay, and to
protect, indemnify and save harmless each Bank, each Agent
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 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) or (ii) the use of the proceeds of the Loans;
and the Borrower also agrees to pay, and to protect,
indemnify and save harmless each Bank, each Agent 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 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 Borrower or any of the
Subsidiaries, or any Environmental Claim related in any way
to the Borrower or the Subsidiaries or arising from or in
connection with the environmental due diligence summary
memorandum referred to in paragraph (m) of Article IV of the
FTX Credit Agreement; 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, Agent or other Person
indemnified or intended to be indemnified pursuant to this
Section 9.4, the Borrower and FTX, jointly and severally, 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 Borrower (which counsel shall be
satisfactory to such Bank, Agent or other Person indemnified
or intended to be indemnified). If the Borrower or FTX
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 Borrower, FTX or FCX contained in this Agreement
shall be breached, any Bank or 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 or Agent shall
be repayable to it by the Borrower and FTX, jointly and
severally, immediately upon such Bank's or such Agent's
demand therefor.
(b) The provisions of this Section 9.4 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
or any Agent. All amounts due under this Section 9.4 shall
be payable on written demand therefor.
SECTION 9.5. 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 VI, 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
the Borrower against any of and all the obligations of the
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 Borrower 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 9.5 are in addition
to other rights and remedies (including, without limitation,
other rights of setoff) which such Bank may have.
SECTION 9.6. 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 9.7. Waivers; Amendments. (a) No failure or
delay of any Bank or Agent 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 and the Agents 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 otherwise have. No
waiver of any provision of this Agreement, any other Loan
Document or any Promissory Note or any other such document
or agreement or consent to any departure by the Borrower
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 the Borrower in any case shall entitle
the Borrower 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.
(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 the
Borrower 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 (other than pursuant to Section 2.7(b), which may be
amended by the Required Banks) of any principal of or
interest on, any Promissory Note (including, without
limitation, any such payment pursuant to Section 2.7(c) or
paragraph (a) or (b) of Section 2.9), 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 Agent
hereunder without the written consent of such Bank or the
Agent, as applicable, (iii) amend or modify the provisions
of this Section 9.7, Sections 2.8 through 2.15 or
Section 9.4 or the definition of "Required Banks", without
the written consent of each Bank or (iv) release the
collateral granted as security under the Security Agreements
(except as expressly required hereby or thereby), 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 an 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 9.7 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 9.8. 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
negotiations 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 9.9. 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
effective 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 and the
Borrower.
SECTION 9.10. 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 9.11. Entire Agreement. This Agreement, the
other Loan Documents, the fee letters between the Agents and
the Borrower 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 9.12. 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 9.12.
(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 9.12 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
represented, 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 applicable, by, among other things, the mutual waivers
and certifications herein.
SECTION 9.13. 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 9.13
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 9.14. JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (A) THE BORROWER, FTX AND FCX EACH 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 OR AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY AGAINST THE BORROWER OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.
(B) THE BORROWER, FTX AND FCX EACH HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY
LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER 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 IRREVOCABLY 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 9.1. 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 9.15. Confidentiality. Each Bank agrees
(which agreement shall survive the termination of this
Agreement) that financial information, information from the
Borrower's and its Subsidiaries' books and records,
information concerning the Borrower's and its Subsidiaries'
trade secrets and patents and any other information received
from the Borrower 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
authorization of the Borrower or FTX;
(ii) disclosure of information (other than that received
from the Borrower and its Subsidiaries, FTX or FCX 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 the Borrower or its Subsidiaries,
FTX or FCX 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 9.15;
(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 to
any subsidiary of such an entity, which owns, directly or
indirectly, more than 50% of the voting stock of such
party, or to any subsidiary of such an entity; or
(viii) disclosure of information that prior to such
disclosure has become public knowledge through no
violation of this 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.
FM PROPERTIES OPERATING CO.,
by FREEPORT-McMoRan INC.,
its Managing General Partner,
by /s/ X. Xxxxxx Xxxxxx
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Treasurer
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxx
Treasurer
Telephone: 000-000-0000
Telecopy: 000-000-0000
FREEPORT-McMoRan INC.,
by /s/ X. Xxxxxx Xxxxxx
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Treasurer
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxx
Treasurer
Telex: 0000000000
Telephone: 000-000-0000
Telecopy: 000-000-0000
FREEPORT-McMoRan COPPER & GOLD INC.,
by /s/ X. Xxxxxx Xxxxxx
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Treasurer
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxx
Treasurer
Telex: 0000000000
Telephone: 000-000-0000
Telecopy: 000-000-0000
CHEMICAL BANK, individually and as
Administrative Agent, FTX Collateral
Agent, FM Collateral Agent and FRP
Collateral Agent
by /s/ X. Xxxxxx
______________________________
Name: Xxxxxx Xxxxxx
Title: Managing Director
Domestic Office and LIBOR Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to
Attention: Xxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
with copies to:
Agent Bank Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Telex: 353006 ABSCNYK
Telecopy: 212-622-0002
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), individually and as
Documentary Agent,
by /s/ Xxxxxxxx X. Xxxxxxxx
________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
Xxx Xxxxx Xxxxxxxxx Xxxxx (0xx Xxxxx)
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
Xxx Xxxxx Xxxxxxxxx Xxxxx (0xx Xxxxx)
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Assistant Treasurer
Telephone: 000-000-0000
Telecopy: 000-000-0000
