Contract
Exhibit
10.1
|
dated
as
of
March
19,
2007,
among
FREEPORT-MCMORAN
COPPER & GOLD INC.,
The
Lenders
Party Hereto,
The
Issuing
Banks Party Hereto,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent and Collateral Agent
and
XXXXXXX
LYNCH, PIERCE, XXXXXX
&
XXXXX
INCORPORATED,
as
Syndication Agent,
and
HSBC
BANK
USA, NATIONAL ASSOCIATION,
THE
BANK OF
NOVA SCOTIA,
UBS
SECURITIES LLC,
as
Co-Documentation Agents,
___________________________
X.X.
XXXXXX
SECURITIES INC. XXXXXXX
LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED as
Joint Lead
Arrangers and Joint Bookrunners
|
TABLE
OF
CONTENTS
Page
ARTICLE
I
Definitions
|
SECTION
1.01.
|
Defined
Terms
|
1
|
|
SECTION
1.02.
|
Classification
of Loans and Borrowings
|
43
|
|
SECTION
1.03.
|
Terms
Generally
|
43
|
|
SECTION
1.04.
|
Accounting
Terms; GAAP
|
44
|
ARTICLE
II
The
Credits
|
SECTION
2.01.
|
Commitments
|
44
|
|
SECTION
2.02.
|
Loans
and
Borrowings
|
44
|
|
SECTION
2.03.
|
Requests
for
Borrowings
|
45
|
|
SECTION
2.04.
|
Funding
of
Borrowings
|
46
|
|
SECTION
2.05.
|
Letters
of
Credit
|
46
|
|
SECTION
2.06.
|
Interest
Elections
|
51
|
|
SECTION
2.07.
|
Termination
and Reduction of Commitments
|
53
|
|
SECTION
2.08.
|
Repayment
of
Loans; Evidence of Debt
|
53
|
|
SECTION
2.09.
|
Amortization
of Term Loans
|
54
|
|
SECTION
2.10.
|
Prepayment
of
Loans
|
55
|
|
SECTION
2.11.
|
Fees
|
58
|
|
SECTION
2.12.
|
Interest
|
59
|
|
SECTION
2.13.
|
Alternate
Rate of Interest
|
60
|
|
SECTION
2.14.
|
Increased
Costs
|
60
|
|
SECTION
2.15.
|
Break
Funding
Payments
|
61
|
|
SECTION
2.16.
|
Taxes
|
62
|
|
SECTION
2.17.
|
Payments
Generally; Pro Rata Treatment; Sharing of Set-offs
|
63
|
|
SECTION
2.18.
|
Mitigation
Obligations; Replacement of Lenders
|
65
|
|
SECTION
2.19.
|
Swingline
Loans
|
66
|
ARTICLE
III
Representations
and
Warranties
|
SECTION
3.01.
|
Organization;
Powers
|
67
|
|
SECTION
3.02.
|
Authorization;
Enforceability
|
67
|
|
SECTION
3.03.
|
Governmental
Approvals; No Conflicts
|
68
|
|
SECTION
3.04.
|
Financial
Condition; No Material Adverse Change
|
68
|
|
SECTION
3.05.
|
Properties
|
69
|
|
SECTION
3.06.
|
Litigation
and Environmental Matters
|
69
|
|
SECTION
3.07.
|
Compliance
with Laws and Agreements
|
70
|
|
SECTION
3.08.
|
Investment
Company Status
|
70
|
|
SECTION
3.09.
|
Taxes
|
70
|
|
SECTION
3.10.
|
ERISA
|
70
|
|
SECTION
3.11.
|
Disclosure
|
70
|
2
|
SECTION
3.12.
|
Subsidiaries
|
70
|
|
SECTION
3.13.
|
Insurance
|
71
|
|
SECTION
3.14.
|
Labor
Matters
|
71
|
|
SECTION
3.15.
|
Security
Documents
|
71
|
|
SECTION
3.16.
|
Federal
Reserve Regulations
|
73
|
|
SECTION
3.17.
|
Solvency
|
73
|
|
SECTION
3.18.
|
Senior
Indebtedness
|
73
|
ARTICLE
IV
Conditions
|
SECTION
4.01.
|
Effective
Date
|
73
|
|
SECTION
4.02.
|
Each
Credit
Event
|
76
|
ARTICLE
V
Affirmative
Covenants
|
SECTION
5.01.
|
Financial
Statements and Other Information
|
77
|
|
SECTION
5.02.
|
Notices
of
Material Events
|
78
|
|
SECTION
5.03.
|
Information
Regarding Collateral
|
79
|
|
SECTION
5.04.
|
Existence;
Conduct of Business
|
79
|
|
SECTION
5.05.
|
Payment
of
Obligations
|
79
|
|
SECTION
5.06.
|
Maintenance
of Properties
|
79
|
|
SECTION
5.07.
|
Insurance
|
79
|
|
SECTION
5.08.
|
Casualty
and
Condemnation
|
80
|
|
SECTION
5.09.
|
Books
and
Records; Inspection and Audit Rights
|
80
|
|
SECTION
5.10.
|
Compliance
with Laws; Environmental Reports
|
80
|
|
SECTION
5.11.
|
Use
of
Proceeds and Letters of Credit
|
81
|
|
SECTION
5.12.
|
Additional
Subsidiaries
|
82
|
|
SECTION
5.13.
|
Further
Assurances
|
82
|
ARTICLE
VI
Negative
Covenants
|
SECTION
6.01.
|
Indebtedness;
Certain Equity Securities
|
82
|
|
SECTION
6.02.
|
Liens
|
84
|
|
SECTION
6.03.
|
Fundamental
Changes
|
86
|
|
SECTION
6.04.
|
Investments
in Unrestricted Subsidiaries
|
88
|
|
SECTION
6.05.
|
Asset
Sales
|
88
|
|
SECTION
6.06.
|
Sale
and
Leaseback Transactions
|
91
|
|
SECTION
6.07.
|
Hedging
Agreements
|
91
|
|
SECTION
6.08.
|
Restricted
Payments; Certain Payments of Indebtedness
|
91
|
|
SECTION
6.09.
|
Transactions
with Affiliates
|
93
|
|
SECTION
6.10.
|
Restrictive
Agreements
|
94
|
|
SECTION
6.11.
|
Amendment
of
Material Documents
|
95
|
|
SECTION
6.12.
|
Fiscal
Year
|
95
|
|
SECTION
6.13.
|
Designation
of Unrestricted Subsidiaries
|
95
|
|
SECTION
6.14.
|
Total
Leverage Ratio
|
96
|
|
SECTION
6.15.
|
Total
Secured
Leverage Ratio
|
96
|
|
SECTION
6.16.
|
Covenants
with Respect to PTII
|
96
|
3
ARTICLE
VII
Events
of
Default
ARTICLE
VIII
The
Agents
ARTICLE
IX
Miscellaneous
|
SECTION
9.01.
|
Notices
|
104
|
|
SECTION
9.02.
|
Waivers;
Amendments
|
104
|
|
SECTION
9.03.
|
Expenses;
Indemnity; Damage Waiver
|
106
|
|
SECTION
9.04.
|
Successors
and Assigns
|
108
|
|
SECTION
9.05.
|
Survival
|
111
|
|
SECTION
9.06.
|
Counterparts;
Integration; Effectiveness
|
111
|
|
SECTION
9.07.
|
Severability
|
112
|
|
SECTION
9.08.
|
Right
of
Setoff
|
112
|
|
SECTION
9.09.
|
Governing
Law; Jurisdiction; Consent to Service of Process; Sovereign
Immunity
|
112
|
|
SECTION
9.10.
|
WAIVER
OF
JURY TRIAL
|
113
|
|
SECTION
9.11.
|
Headings
|
113
|
|
SECTION
9.12.
|
Confidentiality
|
113
|
|
SECTION
9.13.
|
Interest
Rate
Limitation
|
114
|
|
SECTION
9.14.
|
Judgment
Currency
|
114
|
|
SECTION
9.15.
|
[intentionally
omitted]
|
114
|
|
SECTION
9.16.
|
Patriot
Act
|
115
|
|
SECTION
9.17.
|
No
Fiduciary
Relationship
|
115
|
|
SECTION
9.18.
|
Release
of
Liens and Guarantees; Rejurisdictioning of PTFI
|
115
|
|
SECTION
9.19.
|
Non-Public
Information
|
116
|
|
SECTION
9.20.
|
Parallel
Debt
|
116
|
SCHEDULES:
|
Schedule
1.01A—
|
Disclosed
Matters
|
|
Schedule
1.01B—
|
Existing
Letters of Credit
|
|
Schedule
1.01C-1 —
|
Ratable
FCX
Obligations
|
|
Schedule
1.01C-2 —
|
Ratable
Cyprus Obligations
|
|
Schedule
1.01C-3 —
|
Ratable
PD
Obligations
|
|
Schedule
1.01D—
|
Mortgaged
Properties
|
|
Schedule
1.01E—
|
Excluded
Cable and Wire Subsidiaries
|
|
Schedule
2.01
—
|
Commitments
|
|
Schedule
3.03
—
|
Governmental
Approvals
|
|
Schedule
3.04(e) —
|
Certain
Developments
|
|
Schedule
3.12
—
|
Subsidiaries
|
|
Schedule
3.13
—
|
Insurance
|
|
Schedule
5.10A —
|
ICMM
Principles
|
|
Schedule
5.10B —
|
ICMM
Commitments with Respect to World Heritage
Properties
|
4
|
Schedule
5.10C —
|
Response
to
Audit of Indonesian Operations by the International Centre for
Corporate
Accountability
|
|
Schedule
6.01
—
|
Existing
Indebtedness
|
|
Schedule
6.02
—
|
Existing
Liens
|
|
Schedule
6.10
|
Existing
Restrictions
|
EXHIBITS:
|
Exhibit
A —
|
Form
of
Assignment and Assumption
|
|
Exhibit
B-1—
|
Form
of
Perfection Certificate
|
|
Exhibit
B-2—
|
Form
of
Additional Perfection Certificate
|
|
Exhibit
C —
|
Form
of
Issuing Bank Agreement
|
|
Exhibit
D-1 —
|
Form
of
Collateral Agreement
|
|
Exhibit
D-2 —
|
Form
of
Additional Collateral Agreement
|
|
Exhibit
E —
|
[intentionally
omitted]
|
|
Exhibit
F —
|
Form
of
Affiliate Subordination Agreement
|
|
Exhibit
G-1 —
|
Form
of
opinion of Xxxxx Xxxx & Xxxxxxxx, New York counsel for the Borrower
and the Subsidiaries
|
|
Exhibit
G-2 —
|
Form
of
opinion of Jones, Walker, Xxxxxxxx, Poitevant, Carrère & Xxxxxxx,
L.L.P., U.S. counsel for the Borrower and the
Subsidiaries
|
|
Exhibit
G-3 —
|
Form
of
opinion of Indonesian counsel for the Borrower
|
|
Exhibit
G-4 —
|
Form
of
opinion of Indonesian counsel for the
Lenders
|
CREDIT
AGREEMENT
dated as of March 19, 2007 (this “Agreement”),
among
FREEPORT-MCMORAN COPPER & GOLD INC., a Delaware corporation, the Lenders
party hereto, the Issuing Banks party hereto, and JPMORGAN CHASE BANK, N.A.,
(“JPMCB”),
as
Administrative Agent and as Collateral Agent, and XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED, as Syndication Agent.
The
Borrower has
requested that (a) the Tranche A Lenders extend credit in the form of Tranche
A
Term Loans on the Effective Date in an aggregate principal amount not in excess
of $2,500,000,000, (b) the Tranche B Lenders extend credit in the form of
Tranche B Term Loans on the Effective Date in an aggregate principal amount
not
in excess of $7,500,000,000 and (c) the Revolving Lenders extend credit in
the
form of Revolving Loans, the Swingline Lender extend credit in the form of
Swingline Loans and the Issuing Banks issue Letters of Credit, in each case
at
any time and from time to time during the Revolving Availability Period such
that the aggregate Revolving Exposures will not exceed $1,000,000,000 at any
time. The proceeds of the Term Loans, together with (i) the proceeds of
Revolving Loans, (ii) the proceeds of the Senior Notes and (iii) cash will
be
used to (A) pay the cash portion of the Merger Consideration and (B) pay the
Transaction Costs. Letters of Credit and the proceeds of the Revolving Loans
and
Swingline Loans drawn after the Effective Date will be used for working capital
and other general corporate purposes of the Borrower and its
Subsidiaries.
The
Lenders are
willing to extend such credit to the Borrower, and the Issuing Banks are willing
to issue Letters of Credit for the account of the Borrower and its Subsidiaries,
on the terms and subject to the conditions set forth herein. Accordingly, the
parties hereto agree as follows:
ARTICLE
I
Definitions
SECTION
1.01.
Defined
Terms.
As used in this
Agreement, the following terms have the meanings specified below: Capitalized
terms used but not defined in this Agreement have the meanings assigned thereto
in the Restated Credit Agreement.
“ABR”,
when used in
reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.
“Additional
Collateral Agreement”
means
an
amendment and restatement of the Collateral Agreement in substantially the
form
of Exhibit D-2.
“Additional
Collateral Date”
means
the date on
which the Additional Collateral Requirement is first satisfied.
“Additional
Collateral Requirement”
means
the
requirement, at all times after September 15, 2007, when the Full Stock Pledge
Condition is not satisfied, that:
[FREEPORT-MCMORAN
COPPER
& GOLD INC. CREDIT AGREEMENT]
(a)
the
Administrative Agent shall have received from each Loan Party either (x) a
counterpart of the Additional Collateral Agreement or (y) in the case of any
Person that becomes a Loan Party after the Additional Collateral Date, a
supplement to the Additional Collateral Agreement, in the form specified
therein, duly executed and delivered on behalf of such Loan Party;
(b)
a security
interest in all Indebtedness of FCX and each Subsidiary that is owing to any
Loan Party (other than Indebtedness owned by FCX, which is governed by clause
(e) of the definition of Collateral and Guarantee Requirement) shall have been
granted pursuant to the Additional Collateral Agreement; and any such
Indebtedness (other than Indebtedness of any Subsidiary owing to a Loan Party
that is less than $25,000,000 in the aggregate for all such Indebtedness of
such
Subsidiary owing to such Loan Party) shall be evidenced by a promissory note,
which shall have been delivered to the Collateral Agent, together with undated
instruments of transfer with respect thereto endorsed in blank;
(c)
all documents
and instruments, including Uniform Commercial Code financing statements and
Indonesian security register filings, and all control agreements required under
the Additional Collateral Agreement, required by law or reasonably requested
by
the Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by the Additional Security Documents and perfect such
Liens to the extent required by, and with the priority required by, the
Additional Security Documents, shall have been filed, registered or recorded
or
delivered to the Collateral Agent for filing, registration or
recording;
(d)
the
Administrative Agent shall have received (i) a completed Additional Perfection
Certificate dated the Additional Collateral Date and signed by the President,
a
Vice President or a Financial Officer of the Borrower, and (ii) the results
of a
lien search with respect to each Loan Party in the jurisdiction where such
Loan
Party is located (within the meaning of Section 9-307 of the Uniform Commercial
Code as in effect in the State of New York) and, if applicable, all locations
where such Loan Party owns, leases or operates a minehead and evidence
reasonably satisfactory to the Administrative Agent that the Liens indicated
by
such search are permitted by Section 6.02 or have been released.
(e)
the
Administrative Agent shall have received (i) counterparts of a Mortgage with
respect to each Mortgaged Property duly executed and delivered by the record
owner of such Mortgaged Property, (ii) a title report issued by a nationally
recognized title insurance company with respect to each fee interest and
patented claim included in each Mortgaged Property (other than any such fee
interest or patented claim as to which the Administrative Agent shall have
agreed that no such title report shall be required), and (iii) such legal
opinions (but not including any “title” opinions) and other documents as the
Collateral Agent may reasonably request with respect to any such Mortgage;
the
Mortgaged Properties subject to Mortgages shall at all times on and after the
Additional Collateral Date include (x) in the case of producing properties
and
real properties owned by any Permitted Guarantor as of the Effective Date,
each
property that is set forth on Schedule 1.01D and (y) in the case of producing
properties and real properties acquired by any Permitted Guarantor after the
Effective Date, each such property having a fair market value, as reasonably
determined by FCX, in excess of $100,000,000;
(f)
the
Administrative Agent shall have received evidence that any additional insurance
required on and after the Additional Collateral Date by the Additional Security
Documents is in effect;
(g)
the
Intellectual Property subject to the Lien of the Additional Collateral Agreement
shall constitute all the United States intellectual property owned by the
Borrower and the Permitted Guarantors that is material to their business;
neither the Borrower nor any Loan Party shall own any United States intellectual
property that is not subject to the Lien of the Additional Collateral Agreement
the loss of the use of which would materially and adversely affect the
operations of the Borrower and its Subsidiaries; and
(h)
each Loan Party
shall have obtained all material consents and approvals required to be obtained
by it in connection with the execution and delivery of all Additional Security
Documents to which it is a party, the performance of its obligations thereunder
and the granting by it of the Liens thereunder.
Notwithstanding
the
foregoing, (A) assets may be excluded from the Collateral required to be
provided under the Additional Collateral Requirement in circumstances (x) where
the Borrower and the Agents mutually agree that the cost of obtaining a security
interest or pledge in such assets are excessive in relation to the benefit
to
the Lenders of the security to be afforded thereby or (y) where such assets
may
not be subjected to a Lien securing the Secured Obligations pursuant to
agreements permitted pursuant to Section 6.10 and (B) no Indonesian Subsidiary
shall be required to provide any Guarantee of the Obligations or any Collateral
to secure the Obligations pursuant to the Additional Collateral Requirement.
“Additional
Perfection Certificate”
means
the
perfection certificate executed by the Borrower substantially in the form of
Exhibit B-2.
“Additional
Security Documents”
means
the
Additional Collateral Agreement, the Mortgages, each control agreement delivered
pursuant to the Additional Collateral Agreement and each other security
agreement or other instrument or document executed and delivered in satisfaction
of the Additional Collateral Requirement.
“Administrative
Agent”
means
JPMorgan
Chase Bank, N.A., in its capacity as administrative agent for the Lenders
hereunder.
“Administrative
Questionnaire”
means
an
Administrative Questionnaire in a form supplied by the Administrative
Agent.
“Affiliate”
means,
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.
“Affiliate
Subordination Agreement”
means
the
Affiliate Subordination Agreement among the Borrower, the Subsidiaries from
time
to time party thereto and the Administrative Agent, substantially in the form
of
Exhibit F.
“Agents”
means,
collectively, the Administrative Agent, the Collateral Agent and the Syndication
Agent.
“Agreement”
has
the meaning
assigned to such term in the preamble hereto.
“Alternate
Base
Rate”
means,
for any
day, a rate per annum equal to the greater of (a) the Prime Rate in effect
on such day and (b) the Federal Funds Effective Rate in effect on such day
plus ½ of 1%. Any change in the Alternate Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective from and
including the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
“Applicable
Percentage”
means,
at any
time with respect to any Revolving Lender, the percentage of the aggregate
Revolving Commitments represented by such Lender’s Revolving Commitment at such
time. If the Revolving Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Revolving Commitments
most-recently in effect, giving effect to any assignments of Revolving Loans,
LC
Exposures and Swingline Exposures that occur after such termination or
expiration.
“Applicable
Rate”
means,
for any
day (a) with respect to any Tranche B Term Loan, (i) 0.75% per annum, in the
case of an ABR Loan, or (ii) 1.75% per annum, in the case of a Eurodollar Loan,
and (b) with respect to any Loan that is a Tranche A Term Loan or Revolving
Loan, or with respect to the commitment fees payable hereunder, as the case
may
be, the applicable rate per annum set forth below under the caption “ABR
Spread”, “Eurodollar Spread”, or “Commitment Fee Rate”, as the case may be,
based upon the Credit Ratings by Xxxxx’x and S&P applicable on such
date:
|
Credit
Ratings:
|
Eurodollar
Spread
(bps
per
annum)
|
ABR
Spread
(bps
per
annum)
|
Commitment
Fee Rate
(bps
per
annum)
|
|
Category
1
BBB/Baa2
or
higher
|
100
|
0
|
20
|
|
Category
2
BBB-/Baa3
|
125
|
25
|
25
|
|
Category
3
BB+/Ba1
|
150
|
50
|
37.5
|
|
Category
4
BB/Ba2
|
150
|
50
|
50
|
|
Category
5
BB-/Ba3
or
lower
|
175
|
75
|
50
|
For
purposes of the
foregoing, (i) if either Xxxxx’x or S&P shall not have in effect a
Credit Rating (other than by reason of the circumstances referred to in the
last
sentence of this definition), then the Borrower and the Lenders shall negotiate
in good faith to agree upon another rating agency to be substituted by an
amendment to this Agreement for the rating agency which shall not have a Credit
Rating in effect, and pending the effectiveness of such amendment, the
Applicable Rate shall be determined by reference to the available Credit Rating;
(ii) if the Credit Rating established or deemed to have been established by
Xxxxx’x and S&P shall fall within different Categories, the Applicable Rate
shall be based on the higher of the two Credit Ratings unless one of the two
Credit Ratings is two or more Categories lower than the other, in which case
the
Applicable Rate shall be determined by reference to the Category next below
that
of the higher of the two Credit Ratings; and (iii) if the Credit Rating
established or deemed to have been established by Xxxxx’x and S&P shall be
changed (other than as a result of a change in the rating system of Xxxxx’x or
S&P), such change shall be effective as of the date on which it is first
announced by the applicable rating agency. Each change in the Applicable Rate
shall apply during the period commencing on the effective date of such change
and ending on the date immediately preceding the effective date of the next
such
change. If the rating system of Xxxxx’x or S&P shall change, or if either
such rating agency shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to
amend
this definition to reflect such changed rating system or the unavailability
of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Rate shall be determined by reference to the Credit
Rating most recently in effect prior to such change or cessation.
“Assignment
and
Assumption”
means
an
assignment and assumption entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 9.04), and
accepted by the Administrative Agent, in the form of Exhibit A attached
hereto or any other form approved by the Administrative Agent.
“Atlantic
Copper
Financing”
means
that
certain Third Amended and Restated Term Loan and Working Capital Agreement,
as
amended from time to time, among Atlantic Copper, S.A., the lenders party
thereto, Barclays Capital, as arranger and Barclays Bank PLC, as
agent.
“Attributable
Debt”
means,
on any
date, in respect of any lease of the Borrower or any Restricted Subsidiary
entered into as part of a Project Financing or a sale and leaseback transaction
subject to Section 6.06, (i) if such lease is a Capital Lease
Obligation, the capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP and (ii) if
such lease is not a Capital Lease Obligation, the capitalized amount of the
remaining lease payments under such lease that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP if such lease
were accounted for as a Capital Lease Obligation.
“Attributable
Debt Payments”
means,
for FCX
and the Restricted Subsidiaries for any period, all payments made during such
period in respect of Attributable Debt.
“Available
Domestic Cash”
means,
as of any
date, the aggregate amount of cash and Permitted Investments held on such date
by FCX, any Restricted Subsidiary that is incorporated or organized under the
laws of the United States of America, any State thereof or the District of
Columbia or any Guarantor, other than cash and Permitted Investments (a) held
in
accounts outside the United States of America or (b) subject to any
Lien
securing
Indebtedness or other obligations (other than any Lien under the Loan Documents
or “Loan Documents” (as defined in the Restated Credit Agreement)).
“Board”
means
the Board
of Governors of the Federal Reserve System of the United States of
America.
“Borrower”
means
FCX.
“Borrowing”
means
(a) Loans
of the same Class and Type, made, converted or continued on the same date and,
in the case of Eurodollar Loans, as to which a single Interest Period is in
effect, or (b) a Swingline Loan.
“Borrowing
Request”
means
a request
by the Borrower for a Borrowing in accordance with
Section 2.03.
“Business
Day”
means
any day
that is not a Saturday, Sunday or other day on which commercial banks in New
York City are authorized or required by law to remain closed; provided
that, when used in
connection with a Eurodollar 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.
“Capital
Expenditures”
means,
for any
period, (a) the additions to property, plant and equipment and other
capital expenditures of FCX and its Restricted Subsidiaries that are (or would
be) set forth in a consolidated statement of cash flows of FCX for such period
prepared in accordance with GAAP and (b) that portion of principal payments
on Capital Lease Obligations made by FCX and the Restricted Subsidiaries during
such period that are attributable to additions to property, plant and equipment
and that have not otherwise been reflected on the consolidated statement of
cash
flows as additions to property, plant and equipment or other capital
expenditures.
“Capital
Lease
Obligations”
of
any Person
means the obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person
under GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
“CFC”
shall
mean (a)
each person that is a "controlled foreign person" for purposes of the Code
and
(b) each Subsidiary of each such controlled foreign person.
“Change
in
Control”
means
(a) the failure of FCX to own, either directly or through its wholly owned
Subsidiaries, PTFI Shares representing at least 80% of the aggregate ordinary
voting power attributable to all of the issued and outstanding PTFI Shares
(or
following a transaction permitted under Section 6.05(c), the minimum percentage
of PTFI Shares then permitted to be held by FCX); (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person
or
group (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof) of Equity Interests representing more than 50% of the aggregate ordinary
voting power represented by the issued and outstanding Equity Interests in
FCX;
(c) occupation of a majority of the seats (other than vacant seats) on the
board of directors of FCX by Persons who were not (i) members of the board
of
directors of FCX on the Effective Date or (ii) appointed as, or nominated
for election as, directors by a majority of directors referred to in clause
(i)
above or approved pursuant to this clause (ii); or (d) the
occurrence
of any
“Change of Control” or “Change in Control” as defined in the Senior Notes
Documents or in any indenture or other governing agreement relating to any
Material Indebtedness of FCX or any Disqualified Stock of FCX (to the extent
the
aggregate amount of the applicable Disqualified Stock exceeds
$100,000,000).
“Change
in
Law”
means
(a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by any Lender or Issuing Bank (or,
for purposes of Section 2.14(b), by any lending office of such Lender or by
such Lender’s or Issuing Bank’s holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this
Agreement.
“Class”,
when used in
reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are Revolving Loans, Tranche A Term Loans, Tranche
B
Term Loans or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment, Tranche A
Commitment or Tranche B Commitment.
“Class”,
when used in
reference to any Lender, refers to whether such Lender has a Loan or Commitment
with respect to a particular Class.
“Code”
means
the United
States Internal Revenue Code of 1986, as amended from time to time.
“Collateral”
means
any and all
“Collateral”, as defined in any applicable Security Document, or any asset or
right in which a Lien is granted in favor of the Collateral Agent pursuant
to
any Security Document, and shall also after the Additional Collateral Date
include the Mortgaged Properties.
“Collateral
Agent”
means
JPMCB in
its capacity as Collateral Agent under the Collateral Agreement and other
Security Documents.
“Collateral
Agreement”
means
the
Guarantee and Collateral Agreement among the Borrower, the Subsidiary Guarantors
and the Collateral Agent, substantially in the form of Exhibit D-1. In the
event
that the Guarantee provided by PTII is provided in a document other than the
Collateral Agreement, references herein to the Collateral Agreement shall be
deemed to include such other document to the extent of such
Guarantee.
“Collateral
and
Guarantee Minimum Requirement”
means,
at any
time, the requirement that the combined assets and revenues of all the Permitted
Guarantors that are not Loan Parties and of all the Permitted Pledgees the
Equity Interests in which are not pledged to the extent required under clause
(b) or (d), as applicable, of the definition of Collateral and Guarantee
Requirement (other than Excluded Guarantors and Excluded Pledgees), taken
together with all the assets and revenues of their subsidiaries, represent
less
than 5% of Consolidated Total Assets and less than 5% of Consolidated Revenues;
provided
that for purposes
of the foregoing calculation, (i) subject to clause (F) of the definition of
Collateral and Guarantee Requirement, the only pledge of PTFI Shares held by
FCX
required to satisfy the Collateral and Guarantee Minimum Requirement shall
be
the pledge required to be made on the Effective Date under the Restated Credit
Agreement by the Third Amended and Restated FCX Pledge Agreement (PTFI Shares)
(as defined therein), (ii) the PTFI Shares held by PTII shall not be required
to
be pledged at any time, (iii) other than the PTII Shares, the Equity Interests
in or owned by the other Indonesian Subsidiaries shall not be required to be
pledged at any time and (iv) the failure to establish a Holdco in circumstances
in which a Holdco is required shall be deemed to be the failure of a Permitted
Guarantor to become a Subsidiary Guarantor.
“Collateral
and
Guarantee Requirement”
means,
at any
time, the requirement that:
(a)
the Collateral
Agent shall have received from each Loan Party (i) either (x) a counterpart
of
the Collateral Agreement, duly executed and delivered on behalf of such Loan
Party or (y) in the case of any Person that becomes a Loan Party after the
Effective Date, a supplement to the Collateral Agreement (or after the
Additional Collateral Date, the Additional Collateral Agreement), in the form
specified therein, duly executed and delivered on behalf of such Loan Party
and
(ii) with respect to any Loan Party that directly owns Equity Interests of
a
Foreign Subsidiary required to be pledged under paragraph (c) below, a
counterpart of each Foreign Pledge Agreement that the Administrative Agent
determines, based on the advice of counsel, to be necessary or advisable in
connection with the pledge of, or the granting of security interests in, Equity
Interests of such Foreign Subsidiary, in each case duly executed and delivered
on behalf of such Loan Party and such Foreign Subsidiary;
(b)
(i) on and
after the Effective Date, the Pledged PTII Shares shall have been pledged
pursuant to the Third Amended and Restated FCX/ISI Pledge Agreement (PTII
Shares) and the Collateral Agent shall have received (A) a copy of the relevant
page(s) of the share register book of PTII, certified as true and complete
by an
authorized officer of PTII, reflecting the recordation made pursuant to the
Articles of Association of PTII of the pledge by FCX and by International
Support Inc. of the Pledged PTII Shares under the Third Amended and Restated
FCX/ISI Pledge Agreement (PTII Shares), and (B) certificates representing the
Pledged PTII Shares; and (ii) following, as applicable, the satisfaction of
the
Full Stock Pledge Condition or the Partial Stock Pledge Condition, the Pledged
PTFI Shares shall have been pledged pursuant to the Fourth Amended and Restated
FCX Pledge Agreement (PTFI Shares) and the Collateral Agent shall have received
(1) a copy of the relevant page(s) of the share register book of PTFI, certified
as true and complete by an authorized officer of PTFI, reflecting the
recordation made pursuant to the Articles of Association of PTFI of the pledge
by FCX of the Pledged PTFI Shares under the Fourth Amended and Restated FCX
Pledge Agreement (PTFI Shares), and (2) certificates representing the Pledged
PTFI Shares;
(c)
for purposes of
determining whether the Collateral and Guarantee Requirement has been
established on any date after July 31, 2007, FCX shall have used commercially
reasonable efforts to satisfy the Full Stock Pledge Condition on or prior to
July 31, 2007;
(d)
all outstanding
Equity Interests in Permitted Pledgees (other than Equity Interests in the
Excluded Pledgees, PTFI Shares and PTII Shares), in each case owned by or on
behalf of any Loan Party (or any other Restricted Subsidiary (other than a
CFC)
that is not a Loan Party but is not precluded from pledging Equity Interests),
shall have been pledged pursuant to the Collateral Agreement or a Foreign Pledge
Agreement (except that the Loan Parties shall not be required to pledge more
than 65% of the outstanding voting Equity Interests of any CFC that
is
not a Loan Party) and the Collateral Agent shall (except in the case of any
such
Equity Interests that are not certificated securities) have received the
certificates or other instruments representing all such Equity Interests,
together with undated stock powers or other instruments of transfer with respect
thereto endorsed in blank;
(e)
a security
interest in all Indebtedness of any Subsidiary that is owing to FCX shall have
been granted pursuant to the Collateral Agreement (or after the Additional
Collateral Date, the Additional Collateral Agreement); and any such Indebtedness
(other than Indebtedness of any Subsidiary owing to FCX that is less than
$25,000,000 in the aggregate for all such Indebtedness of such Subsidiary owing
to FCX) shall be evidenced by a promissory note, which shall have been delivered
to the Collateral Agent, together with undated instruments of transfer with
respect thereto endorsed in blank;
(f)
all documents
and instruments, including Uniform Commercial Code financing statements, and
all
control agreements required in respect of deposit or securities accounts of
FCX
under the Collateral Agreement, required by law or reasonably requested by
the
Administrative Agent to be filed, registered or recorded to create the Liens
intended to be created by the Security Documents and perfect such Liens to
the
extent required by, and with the priority required by, the Security Documents,
shall have been filed, registered or recorded or delivered to the Administrative
Agent or the Collateral Agent, as applicable, for filing, registration or
recording;
(g)
the Collateral
and Guarantee Minimum Requirement shall be satisfied;
(h)
the Borrower
shall have established each of the Holdcos referred to in clauses (a) and (b)
of
the definition of Holdco; all the Equity Interests in each Holdco shall have
been pledged pursuant to the Collateral Agreement; and each Holdco shall be
a
Subsidiary Guarantor;
(i)
the Affiliate
Subordination Agreement shall have been delivered to the Administrative Agent,
and the Borrower, each other Loan Party and each Subsidiary that is not a Loan
Party and holds Indebtedness of the Borrower or any other Loan Party in an
aggregate principal amount greater than $20,000,000 shall be party
thereto;
(j)
for purposes of
determining whether the Collateral and Guarantee Requirement has been satisfied
on any day after September 15, 2007, if the Full Stock Pledge Condition is
not
then satisfied, the Additional Collateral Requirement shall be satisfied;
and
(k)
each Loan Party
shall have obtained all material consents and approvals required to be obtained
by it in connection with the execution and delivery of all Security Documents
to
which it is a party, the performance of its obligations thereunder and the
granting by it of the Liens thereunder.
Notwithstanding
the
foregoing:
|
(A)
|
Permitted
Guarantors shall not be required to provide Guarantees or Liens on
any of
their assets if in the absence of such Guarantees the Collateral
and
Guarantee Minimum Requirement shall be
satisfied.
|
|
(B)
|
Equity
Interests in Permitted Pledgees shall not be required to be pledged
if in
the absence of such pledges the Collateral and Guarantee Minimum
Requirement shall be satisfied.
|
|
(C)
|
Assets
may be
excluded from the Collateral and Permitted Guarantors may be excluded
from
Guarantee requirements in circumstances where (1) the Borrower and
the
Agents mutually agree (prior to the Effective Date in the case of
assets
and Subsidiaries held on the Effective Date) that the cost of obtaining
a
security interest or pledge in such assets or providing such a Guarantee
are excessive in relation to the benefit to the Lenders of the security
to
be afforded thereby or (2) the granting of a Lien on any such assets
or
the provision of a Guarantee by any such Subsidiary shall require
the
consent of any Governmental Authority or any other Person that is
not the
Borrower or a Restricted Subsidiary and either (x) such consent has
not
been obtained despite commercially reasonable efforts of the Borrower
and
the Restricted Subsidiaries to obtain such consent or (y) the Borrower
determines in good faith that requesting or obtaining such consent
would
be detrimental to the business of the Borrower and the Restricted
Subsidiaries or to their relations with applicable Governmental
Authorities or joint venture or other business partners or that such
consents could not be obtained without the making of payments that
are not
de minimis
in amount or
the granting of material concessions to such Governmental Authorities
or
joint venture or business partners.
|
|
(D)
|
Equity
Interests in Permitted Pledgees may be excluded or released from
the
Collateral and Permitted Guarantors may be excluded or released from
the
Guarantee requirements in the event of any Project Financing by a
Project
Financing Subsidiary (other than PD or PTFI) if the Borrower shall
advise
the Collateral Agent that (1) such exclusion or release of the Project
Financing Subsidiary or its direct or indirect parent or parents
will be
required by the financing party or parties in connection with such
Project
Financing, and (2) a Subsidiary other than PD (which may be a new
Holdco
established for the purpose) that directly or indirectly holds such
Project Financing Subsidiary as a subsidiary is a Guarantor or a
Subsidiary the Equity Interests in which are pledged as Collateral
to the
extent required under clause (b) or (d), as applicable, of this definition
of Collateral and Guarantee Requirement; provided,
however,
that no
such Guarantee shall be released unless each Ratable Guarantee by
the
applicable Loan Party shall be released upon the release of such
Loan
Party’s Guarantee of the Secured
Obligations.
|
|
(E)
|
None
of PTFI,
PTII or any other Indonesian Subsidiary will be required to provide
any
Collateral to secure the Secured
Obligations.
|
|
(F)
|
The
Borrower
shall be deemed to have satisfied the requirements of this Collateral
and
Guarantee Requirement on the Effective Date notwithstanding the failure
to
satisfy all the requirements set forth above so long as (i) the Borrower
shall have used its commercially reasonable efforts to satisfy all
such
requirements and (ii) the Borrower shall have satisfied the above
requirements with respect to (1) all Collateral the security interests
in
which may be perfected by the filing of a UCC financing statement
and the
security agreement giving rise to the security interest therein,
(2)
subject to the next sentence below, the pledge of substantially all
the
Equity Interests intended to be included in the Collateral (it being
understood that satisfaction of neither the Partial Stock Pledge
Condition
nor the Full Stock Pledge Condition is required on the Effective
Date) and
(3) the continuation of the Guarantees and the collateral provided
to
secure the Restated Credit Agreement
|
| under the FI Security Documents (as defined therein) that are governed by New York law. For the avoidance of doubt, no Loan Document or FI Security Document governed by Indonesian law or subject to Indonesian notarial requirements shall be required to be in effect on the Effective Date to satisfy the Collateral and Guarantee Requirement hereunder and under the Restated Credit Agreement so long as the Borrower shall have used its commercially reasonable efforts to have such documents in effect on the Effective Date. It is understood that while not a condition precedent to the Effective Date, satisfaction of the remainder of the Collateral and Guarantee Requirement shall be required to be completed on or prior to April 2, 2007, and the failure to satisfy any such remaining requirement prior to such date shall not constitute a breach of the Collateral and Guarantee Requirement. Completion of such requirements shall include delivery of all opinions that would have been required to be delivered in connection therewith on the Effective Date had such requirements been satisfied on the Effective Date. The Administrative Agent may grant extensions of time for the satisfaction of the Collateral and Guarantee Requirement in respect of any particular Collateral or any particular Subsidiary if it determines that the satisfaction of the Collateral and Guarantee Requirement with respect to such Collateral or such Subsidiary cannot be accomplished without undue expense or unreasonable effort by the time or times at which it would otherwise be required to be satisfied under this Agreement or any Security Document. |
“Collateral
Shortfall Period”
means
any period
(a) beginning on or after July 31, 2007, during which neither the Full Stock
Pledge Condition nor the Partial Stock Pledge Condition is satisfied or (b)
beginning on or after September 15, 2007, during which neither (i) the Full
Stock Pledge Condition is satisfied nor (ii) both the Partial Stock Pledge
Condition and the Additional Collateral Requirement are satisfied.
“Commitment”
means
a Revolving
Commitment, Swingline Commitment, Tranche A Commitment or Tranche B Commitment,
or any combination thereof (as the context requires).
“Concentrate
Sales Agreements”
means
all
contracts and agreements with respect to the sale or disposition of ores or
minerals produced by the mining, concentrating and related operations conducted
by PTFI pursuant to the Contract of Work.
“Confidential
Information Materials”
means
the
confidential information materials dated February 2007 relating to the Borrower
and the Transactions.
“Consolidated
Adjusted Net Income”
means,
for any
period, the net income of FCX and its Subsidiaries for such period; provided,
however,
that there shall
not be included in the calculation of such Consolidated Adjusted Net
Income:
(1)
any net income
of any Person (other than FCX) if such Person is not a Restricted Subsidiary,
except that: (A) subject to the limitations contained in clause (4) below,
FCX’s
equity in the net income of any such person for such period shall be included
in
such Consolidated Adjusted Net Income up to the aggregate amount of cash
actually distributed by such Person during such period to FCX or a Restricted
Subsidiary as a dividend or other distribution (subject, in the case of a
dividend or other distribution made to a Restricted Subsidiary, to the
limitations contained in clause (3) below); and (B) FCX’s equity in a net loss
of any such Person for such period shall be included in determining such
Consolidated Adjusted Net Income;
(2)
any net income
(or loss) of any Person acquired by FCX or a Subsidiary of FCX in a pooling
of
interests transaction (or any transaction accounted for in a manner similar
to a
pooling of interests) for any period prior to the date of such
acquisition;
(3)
any net income
(or loss) of any Restricted Subsidiary if such Restricted Subsidiary is subject
to restrictions, directly or indirectly, on the payment of dividends or the
making of distributions by such Restricted Subsidiary, directly or indirectly,
to FCX, except that: (A) subject to the limitations contained in clause (4)
below, FCX’s equity in the net income of any such Restricted Subsidiary for such
period shall be included in such Consolidated Adjusted Net Income up to the
aggregate amount of cash actually distributed by such Restricted Subsidiary
during such period to FCX or another Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or other distribution
made to another Restricted Subsidiary, to the limitation contained in this
clause); and (B) FCX’s equity in a net loss of any such Restricted Subsidiary
for such period shall be included in determining such Consolidated Adjusted
Net
Income;
(4)
any gain (or
loss) realized upon the sale or other disposition of any asset of FCX or its
Subsidiaries (including pursuant to any sale and leaseback transaction) that
is
not sold or otherwise disposed of in the ordinary course of business and any
gain (or loss) realized upon the sale or other disposition of any Equity
Interest in any Person;
(5)
any
extraordinary, unusual or non-recurring gain or loss;
(6)
the cumulative
effect of a change in accounting principles;
(7)
any non-cash
gain or loss attributable to any Hedging Agreement relating to commodity prices
until such time as it is settled, at which time the net gain or loss shall
be
included;
(8)
accruals and
reserves that are established within twelve months after the Effective Date
and
that are so required to be established as a result of the Transactions in
accordance with GAAP;
(9)
any increase in
amortization, depletion or depreciation, increase in cost of goods sold
attributable to metal inventories or any one-time non-cash charges resulting
from purchase accounting in connection with the Transactions or any acquisition
that is consummated after the Effective Date;
(10)
any non-cash
impairment charges resulting from the application of Statement of Financial
Accounting Standards No. 142 and No. 144 and any amortization of intangibles
pursuant to Statement of Financial Accounting Standards No. 141;
(11)
any net
after-tax income or loss from discontinued operations and any net after-tax
gain
or loss on disposal of discontinued operations;
(12)
any non-cash
compensation expense recognized from grants of stock appreciation or similar
rights, stock options, restricted stock, restricted stock units or other rights
to officers, directors and employees of such Person or any of its Restricted
Subsidiaries; and
(13)
any premiums,
fees and expenses (and any amortization thereof) paid in connection with the
Transactions.
in
each case, for such period. Notwithstanding the foregoing, there shall be
excluded from Consolidated Adjusted Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries
to
FCX or a Restricted Subsidiary to the extent such dividends, repayments or
transfers reduce the Restricted Uses.
“Consolidated
EBITDA”
means,
for any
period, Consolidated Net Income for such period plus (a) without
duplication and to the extent deducted in determining such Consolidated Net
Income, the sum of (i) consolidated interest expense and Attributable Debt
Payments for such period, (ii) consolidated income tax expense for such
period, (iii) all amounts attributable to depreciation and amortization for
such period, (iv) any extraordinary charges or significant nonrecurring
non-cash charges or non-cash charges resulting from requirements to
xxxx-to-market derivative obligations (including commodity-linked securities)
for such period (provided
that any cash
payment made with respect to any such non-cash charge shall be subtracted in
computing Consolidated EBITDA for the period in which such cash payment is
made), (v) any impairment charges or asset write offs or amortization related
to
intangible assets and long-lived assets pursuant to GAAP (including pursuant
to
Statement of Financial Accounting Standards No. 141, 142 or 144), (vi)
integration expenses in connection with the Transactions and any restructuring
charges and reserves, (vii) fees and expenses in respect of the Transactions,
(viii) fees and expenses in respect of consummated or proposed acquisitions,
dispositions or financings, (ix) any purchase accounting adjustments and any
step-ups with respect to re-valuing assets and liabilities in connection with
the Transactions or any acquisition or Investment consummated after the
Effective Date (including any increase in amortization, depletion or
depreciation, increase in cost of goods sold attributable to metal inventories
or any one-time non-cash charges), (x) other non-cash charges, including
non-cash charges attributable to stock options and other stock-based
compensation, (xi) any costs or expenses incurred by the Borrower or a
Restricted Subsidiary pursuant to any management equity plan or stock option
plan or any other management or employee benefit plan or agreement or any stock
subscription or stockholders agreement, to the extent that such costs or
expenses are funded with cash proceeds contributed to the capital of the
Borrower or net cash proceeds of issuance of Equity Interests of the Borrower,
(xii) charges attributable to liability or casualty events or business
interruption, to the extent covered (or reasonably expected to be covered)
by
insurance and (xiii) payments made in respect of obligations of the types
included in clause (j) of the definition of Indebtedness; minus (b) without
duplication and to the extent included in determining such Consolidated Net
Income, any extraordinary gains or non-cash gains for such period; and plus
or
minus, as applicable, (c) without duplication and to the extent deducted or
included, as the case may be, in determining such Consolidated Net Income (i)
any after-tax effect of gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions other than in the ordinary course
of
business, as determined in good faith by the Borrower, (ii) any net after-tax
gains or losses from early extinguishment of Indebtedness or hedging obligations
or other derivative instruments, including without limitation, any write-off
of
deferred financing costs, (iii) any net non-cash gain or loss resulting from
currency translation gains or losses related to currency re-measurements of
Indebtedness, (iv) the cumulative effect of a change in accounting principles
and (v) any net after-tax income or loss from discontinued operations and any
net after-tax gain or loss on disposal of discontinued operations, all
determined on a consolidated basis in accordance with GAAP. Notwithstanding
anything to the contrary contained herein, Consolidated EBITDA shall
be
deemed to be $2,615,500,000, $2,455,700,000 and $2,355,500,000, respectively,
for the fiscal quarters ended June 30, 2006, September 30, 2006 and December
31,
2006.
For
the purposes of
calculating Consolidated EBITDA for any period of four consecutive fiscal
quarters (each, a “Reference
Period”),
if during such
Reference Period (or, in the case of pro forma calculations, during the period
from the last day of such Reference Period to and including the date as of
which
such calculation is made) FCX or any Restricted Subsidiary shall have made
a
Material Disposition or Material Acquisition, Consolidated EBITDA for such
Reference Period shall be calculated after giving pro forma effect thereto
as if
such Material Disposition or Material Acquisition occurred on the first day
of
such Reference Period (with the Reference Period for the purposes of pro forma
calculations being the most recent period of four consecutive fiscal quarters
for which the relevant financial information is available). As used in this
definition, “Material
Acquisition”
means
any
acquisition of property or series of related acquisitions of property that
(a)
constitutes assets comprising all or substantially all of an operating unit
of a
business or constitutes common stock of any Person and (b) involves
consideration in excess of $200,000,000; and “Material Disposition” means any
sale, transfer or other disposition of property or series of related sales,
transfers or other dispositions of property that (a) involves assets comprising
all or substantially all of an operating unit of a business or involves common
stock of any Person owned by the Borrower and the Restricted Subsidiaries and
(b) yields gross proceeds to the Borrower or any Restricted Subsidiary in excess
of $200,000,000.
“Consolidated
Net
Income”
means,
for any
period, the net income or loss of FCX and the Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP; provided
that there shall
be excluded the income or loss of any Person accrued prior to the date it
becomes a Restricted Subsidiary or is merged into or consolidated with FCX
or
any Restricted Subsidiary or the date that such Person’s assets are acquired by
FCX or any Restricted Subsidiary.
Notwithstanding
anything to the contrary contained herein, solely for purposes of calculating
Consolidated EBITDA, Consolidated Net Income shall be (a) computed without
deduction for minority interests and (b) subject to the final paragraph of
the
definition of “Consolidated EBITDA”.
“Consolidated
Revenues”
means,
at any
time, the revenues of FCX and the Restricted Subsidiaries, as set forth in
the
most recent consolidated statement of income of FCX and the Restricted
Subsidiaries delivered pursuant to Section 5.01 (or, prior to any such delivery,
referred to in Section 3.04(c)) on such date of determination, determined on
a
consolidated basis in accordance with GAAP.
“Consolidated
Total Assets”
means,
at any
time, the total assets of the Borrower and the Restricted Subsidiaries, as
set
forth in the most recent consolidated balance sheet of the Borrower and the
Restricted Subsidiaries delivered pursuant to Section 5.01 (or (x) prior to
any
such delivery, the balance sheet referred to in Section 3.04(c), and (y) for
purposes of determining compliance with the Collateral and Guarantee Minimum
Requirement prior to the completion of purchase accounting allocations in
respect of the Transactions, the balance sheets referred to in Section 3.04(a)
and (b)) on or prior to such date of determination, determined on a consolidated
basis in accordance with GAAP.
“Contract
of
Work”
means
the
Contract of Work made December 30, 1991, between the Ministry of Mines of
the Government of the Republic of Indonesia, acting for and on behalf of the
Government of the Republic of Indonesia, and PTFI,
together
with any
related implementation agreement or Memorandum of Understanding with such
Ministry of Mines acting on behalf of the Government of the Republic of
Indonesia, after giving effect to the PT-Rio Tinto Indonesia COW
Assignment.
“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 ability
to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto.
“Credit
Rating”
means
a rating
assigned by S&P or Xxxxx’x to the credit facilities provided by this
Agreement.
“Default”
means
any event
or condition which constitutes an Event of Default or which upon notice, lapse
of time or both would, unless cured or waived, become an Event of
Default.
“Designated
Noncash Consideration”
means
the fair
market value of noncash consideration received by FCX or a Restricted Subsidiary
in connection with an asset disposition pursuant to Section 6.05(b) that is
designated as Designated Noncash Consideration pursuant to a certificate of
a
Financial Officer of FCX delivered to the Administrative Agent, setting forth
the basis of such valuation (which amount will be reduced by the fair market
value of the portion of the noncash consideration converted to cash within
180
days following the consummation of the applicable asset
disposition).
“Designation”
has
the meaning
assigned to such term in Section 6.13(a).
“Disclosed
Matters”
means
the
actions, suits and proceedings and the environmental matters disclosed in
Schedule 1.01A.
“Disqualified
Stock”
means,
with
respect to any Person, any Equity Interests of such Person that, by its terms
(or by the terms of any security or other Equity Interests into which it is
convertible or for which it is redeemable or exchangeable either mandatorily
or
at the option of the holder thereof), or upon the happening of any event or
condition (a) matures or is mandatorily redeemable (other than solely for
Qualified Stock and cash in lieu of fractional shares of Qualified Stock),
pursuant to a sinking fund obligation or otherwise (except as a result of a
change of control or asset sale to the extent the terms of such Equity Interests
provide that such Equity Interests shall not be required to be repurchased
or
redeemed until the repayment in full of the Loans and all other Secured
Obligations that are accrued and payable and the termination of the Commitments
have occurred or such repurchase or redemption is otherwise permitted by this
Agreement (including as a result of a waiver hereunder)), (b) is redeemable
at
the option of the holder thereof (other than solely for Qualified Stock and
cash
in lieu of fractional shares of Qualified Stock), in whole or in part, or (c)
is
or becomes convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Stock, in each case, prior to
the
date that is 91 days after the Tranche B Maturity Date; provided,
however,
that only the
portion of the Equity Interests that so mature or are mandatorily redeemable,
are so convertible or exchangeable or are so redeemable at the option of the
holder thereof prior to such date shall be deemed to be Disqualified Stock;
provided further,
however,
that if any
Equity Interests are issued to any employee or to any plan for the benefit
of
employees of FCX or its Subsidiaries or by any such plan to such employees,
such
Equity Interests shall not constitute Disqualified Stock solely because they
may
be required to be repurchased by FCX or a Subsidiary in order to satisfy
applicable statutory or regulatory obligations or as a result of such employee’s
termination, death or disability.
“dollars”
or
“$”
refers
to lawful
money of the United States of America.
“Effective
Date”
means
the date on
which the conditions specified in Section 4.01 are satisfied (or waived in
accordance with Section 9.02).
“Environmental
Laws”
means
all 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 or exposure to any hazardous or toxic substances, materials or
wastes.
“Environmental
Liability”
means
any
liability, contingent or otherwise (including any liability for damages, costs
of environmental remediation, fines, penalties or indemnities), of the Borrower
or any Subsidiary directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the
foregoing.
“Equity
Interests”
means
shares of
capital stock, partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling
the
holder thereof to purchase or acquire any such equity interest.
“Equity
Proceeds”
shall
mean the
Net Proceeds received by FCX from the issuance or sale by FCX of common stock
of
FCX or preferred stock (other than Disqualified Stock) of FCX (other than sales
of such stock to directors, officers or employees of FCX or any Subsidiary
in
connection with employee compensation and incentive arrangements).
“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
(a) any “reportable event”, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the existence with respect
to any Plan of an “accumulated funding deficiency” (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by the
Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint
a
trustee to administer any Plan; (f) the incurrence by the Borrower or any
of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt
by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from 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.
“ERM
Report”
means
the Review
of the Freeport McMoRan Copper and Gold Operation in Papua, Indonesia Report
dated as of June 17, 2006 prepared by Environmental Resources
Management.
“Eurodollar”,
when used in
reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by
reference to the LIBO Rate.
“Eurodollar
Reserve Requirement”
means,
with
respect to Eurodollar Loans, the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board for eurocurrency funding (currently
referred to as “Eurocurrency Liabilities” in Regulation D of the Board).
Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time
to
time to any Lender under such Regulation D or any comparable regulation.
The Eurodollar Reserve Requirement shall be adjusted automatically on and as
of
the effective date of any change in any reserve percentage.
“Event
of
Default”
has
the meaning
assigned to such term in Article VII.
“Excess
Cash
Flow”
means,
for any
fiscal year of FCX, the sum (without duplication) of:
(a) the
amount of net
cash provided by operating activities that is or would be reflected on a
consolidated statement of cash flows for the Borrower and the Restricted
Subsidiaries for such fiscal year prepared in accordance with GAAP; minus
(b) the
aggregate cash
consideration paid in respect of any acquisition from any Person that is not,
prior to such acquisition, the Borrower or a Restricted Subsidiary, of any
Equity Interests in any Person or any assets constituting a business unit
(except to the extent attributable to the incurrence of Capital Lease
Obligations or Attributable Debt or otherwise financed by incurring Long-Term
Indebtedness (excluding Indebtedness in respect of the Revolving Loans or
revolving loans under the Restated Credit Agreement), by issuing Equity
Interests (other than to the Borrower or any Restricted Subsidiary), through
the
receipt of capital contributions (other than capital contributions made by
the
Borrower or any Restricted Subsidiary) or using the proceeds of any disposition
of assets outside the ordinary course of business or other proceeds not
reflected in net cash provided by operating activities (collectively,
“Excluded
Sources”));
minus
(c) the
sum of Capital
Expenditures paid in cash during such period (except to the extent financed
by
Excluded Sources); minus
(d) to
the extent not
constituting a Restricted Use, the aggregate amount of Investments in
Unrestricted Subsidiaries permitted by Section 6.04 made in cash during such
period (except to the extent attributable to Excluded Sources); minus
(e) the
amount, if any,
by which Restricted Cash at the end of such fiscal year is greater than
Restricted Cash at the beginning of such fiscal year (except to the extent
such
increase was funded from Excluded Sources); plus
(f) the
amount, if any,
by which Restricted Cash at the end of such fiscal year is less than Restricted
Cash at the beginning of such fiscal year; minus
(g) the
amount of cash
payments of dividends on common stock of the Borrower during such period and
the
amount of cash redemptions of preferred stock of the Borrower during such
period, in each case to the extent permitted by Section 6.08(a)(ii) or (iii)
and
the amount of other cash payments of dividends on preferred stock during such
period; minus
(h) the
aggregate
principal amount of Indebtedness repaid or prepaid during such fiscal year,
excluding (i) Indebtedness in respect of Revolving Loans and Letters of Credit,
loans under the Restated Credit Agreement or other revolving credit facilities
(unless there is a corresponding reduction in the aggregate Revolving
Commitments or the commitments in respect of such other revolving credit
facilities, as the case may be), (ii) Term Loans prepaid pursuant to Section
2.10(a), (c) or (d), and (iii) repayments of Indebtedness financed from Excluded
Sources; minus
(i) the
amount, if any,
by which the aggregate amount of cash and Permitted Investments held by
Restricted Subsidiaries that are Foreign Subsidiaries at the end of such fiscal
year is greater than the aggregate amount held by them at the beginning of
such
fiscal year; plus
(j) the
amount, if any,
by which the aggregate amount of cash and Permitted Investments held by
Restricted Subsidiaries that are Foreign Subsidiaries at the end of such fiscal
year is less than the aggregate amount held by them at the beginning of such
fiscal year; minus
(k) except
to the
extent otherwise deducted in calculating net cash, dividends or other
distributions made in respect of minority interests in Restricted Subsidiaries;
minus
(l) fees,
expenses and
premiums paid in respect of the Transactions, consummated or proposed
acquisitions, dispositions or financings and repayments, prepayments or
redemptions of Indebtedness.
For
purposes of
this definition, “Restricted
Cash”
means
the
aggregate amount of cash and Permitted Investments of FCX and the Restricted
Subsidiaries that are (a) subject to Liens securing (i) letters of credit,
(ii)
obligations under Hedging Agreements or (iii) interest reserve accounts or
(b)
subject to Liens securing, or held in cash reserve funds for, environmental
liabilities, assurances and reclamations.
“Excluded
Guarantors”
means
each of (a)
for so long as the applicable contractual restrictions remain in effect, Xxxxxx
Dodge Morenci, Inc., PD Ojos del Salado, Inc. and XX Xxxxxxxxxx, Inc., (b)
Xxxxxx Dodge Katanga Corporation, Eastern Mining Company, FM Services Company
and Overseas Service Company, (c) each
Subsidiary
included
in the international wire and cable business of PD and set forth on Schedule
1.01E and (d) each other Permitted Guarantor formed or acquired after the
Effective Date which the Administrative Agent shall have agreed in accordance
with clause (C)(1), or the Borrower shall have determined in accordance with
clause (C)(2), in each case of the definition of Collateral and Guarantee
Requirement shall not be required to provide a guarantee.
“Excluded
Pledgees”
means
each of (a)
at all times that an intercompany note representing substantially all its assets
is pledged in accordance with the Collateral Agreement, Freeport Finance Company
B.V., (b) for so long as the applicable contractual restrictions remain in
effect, Cyprus Climax Metals Company and Sociedad Minera Cerro Verde S.A.A.,
(c)
Xxxxxx Dodge Katanga Corporation , Xxxxxx Holdings Ltd., Tenke Fungurume,
Sociedad Contractual Minera el Abra and Overseas Service Company, (d) each
Subsidiary included in the international wire and cable business of PD and
set
forth on Schedule 1.01E and (e) each other Permitted Pledgee formed or acquired
after the Effective Date the Equity Interests in which the Administrative Agent
shall have agreed in accordance with clause (C)(1), or the Borrower shall have
determined in accordance with clause (C)(2), in each case of the definition
of
Collateral and Guarantee Requirement shall not be required to be
pledged.
“Excluded
Taxes”
means,
with
respect to the Administrative Agent, any Lender, any Issuing Bank or any other
recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) income or franchise taxes imposed on (or measured
by) its net income by the United States of America, or by the jurisdiction
under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction described in
clause (a) above and (c) in the case of a Foreign Lender (other than
an assignee pursuant to a request by the Borrower under Section 2.18(b)),
any withholding tax that (i) is in effect and would apply to amounts payable
to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to any withholding tax pursuant to
Section 2.16(a) or (ii) is attributable to such Foreign Lender’s failure to
comply with Section 2.16(f).
“Existing
Credit
Agreement”
means
the Amended
and Restated Credit Agreement dated as of July 25, 2006, among FCX, PTFI, the
lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent,
issuing bank, security agent, JAA security agent and documentation agent and
U.S. Bank Trust National Association, as FI trustee, which amended and restated
the Amended and Restated Credit Agreement dated as of September 30, 2003, which
amended and restated the Amended and Restated Credit Agreement dated as of
October 19, 2001, which amended and restated both the Credit Agreement
originally dated as of October 27, 1989 and amended and restated as of June
1,
1993 and the Credit Agreement originally dated as of June 30, 1995.
“Existing
Indebtedness”
means
the
indebtedness for borrowed money set forth on Schedule 6.01.
“Existing
Letters
of Credit”
means
the
existing letters of credit issued under the PD Credit Agreement or the Existing
Credit Agreement and listed on Schedule 1.01B. The Borrower shall be deemed
to
have requested the issuance of each Existing Letter of Credit for purposes
hereof.
“FCX”
means
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation, and following
any merger or consolidation permitted under Section 6.03(a) to which FCX is
a
party and is not the surviving Person, such surviving Person.
“FCX
Assisted
PTFI Sale”
means
a
Qualifying PTFI Sale Transaction in respect of which FCX and/or PTFI may, at
its
option, provide an unsecured Guarantee in accordance with the provisions of
Section 6.01(a)(vii).
“FCX
Pledge
Agreements”
means
the Fourth
Amended and Restated FCX Pledge Agreement (PTFI Shares) and the Third Amended
and Restated FCX/ISI Pledge Agreement (PTII Shares).
“Federal
Funds
Effective Rate”
means,
for any
day, the weighted average (rounded upwards, if necessary, to the next 1/100
of
1%) 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 that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations
for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
“FI
Obligations”
means
the
“Obligations” as defined under the Restated Credit Agreement.
“FI
Project”
means
the mining,
concentrating and related operations conducted or to be conducted by PTFI in
Papua, Indonesia, pursuant to the Contract of Work.
“FI
Trust
Agreement”
means
the
Restated Trust Agreement dated as of October 11, 1996, among PTFI, PT-Rio Tinto
Indonesia, The Chase Manhattan Bank, as the depositary, First Trust of New
York,
National Association, as FI trustee and certain other creditors of
PTFI.
“Financial
Covenants”
means
the
covenants set forth in Sections 6.14 and 6.15.
“Financial
Officer”
means
the chief
financial officer, principal accounting officer, treasurer or controller of
FCX.
“Foreign
Lender”
means
any Lender
that is organized under the laws of a jurisdiction other than that in which
the
Borrower is located. For purposes of this definition, the United States of
America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
“Foreign
Pledge
Agreement”
means
the FCX
Pledge Agreements and a pledge or charge agreement with respect to each other
portion of the Collateral that constitutes Equity Interests of a Foreign
Subsidiary, in form and substance reasonably satisfactory to the Administrative
Agent.
“Foreign
Subsidiary”
means
any
Subsidiary that is organized under the laws of a jurisdiction other than the
United States of America, any State thereof or the District of
Columbia.
“Fourth
Amended
and Restated FCX Pledge Agreement (PTFI Shares)”
means
an amended
and restated pledge agreement delivered in satisfaction of the Full Stock Pledge
Condition or the Partial Stock Pledge Condition, with such modifications as
may
be necessary to effect such satisfaction and in form and substance reasonably
satisfactory to the Collateral Agent, pursuant to which FCX grants a perfected
first priority security interest under Indonesian law in the Pledged PTFI Shares
for the ratable benefit of the holders of the Obligations, the Ratable FCX
Obligations and the FI Obligations.
“Full
Stock
Pledge Condition”
means
the pledge
by FCX pursuant to the Fourth Amended and Restated FCX Pledge Agreement (PTFI
Shares), to secure the Secured Obligations, the Ratable FCX Obligations and
the
FI Obligations, of a portion of the Equity Interests in PTFI not less than
the
greater of (a) all the Equity Interests it owns directly in PTFI and (b) at
all
times when the aggregate principal amount of the Term Loans, the Revolving
Commitments and the revolving commitments under the Restated Credit Agreement
shall be greater than or equal to $8,000,000,000, a percentage of all the Equity
Interests in PTFI that, together with the Equity Interests in PTFI then held
by
PTII, equals 80%, and at all other times, a percentage of all Equity Interests
in PTFI that, together with the Equity Interests in PTFI held by PTII, equals
70%. A sale of Equity Interests in PTFI in compliance with Section 6.05(c)(ii)
that does not reduce the percentage of all the Equity Interests in PTFI held
directly by FCX, taken together with the Equity Interests in PTFI then held
by
PTII, to less than 70% of all the Equity Interests in PTFI shall not cause
the
Full Stock Pledge Condition not to be satisfied, so long as all remaining Equity
Interests in PTFI held directly by FCX (which, together with the Equity
Interests in PTFI then held by PTII, shall be not less than the applicable
percentage specified in clause (b) above of all the Equity Interests in PTFI)
remain subject to the pledge under the FCX Pledge Agreements securing the
Secured Obligations, the Ratable FCX Obligations and the FI
Obligations.
“Funded
Debt”
of
any Person
means Indebtedness of such Person of the types referred to in clauses (a),
(b),
(c), (d), (e), (h), (j) and (k) of definition thereof and all Indebtedness
of
the types referred to in clauses (f), (g) and (i) of such definition relating
to
Indebtedness of others of the types referred to in such clauses (a), (b), (c),
(d), (e), (h), (j) and (k).
“GAAP”
means
generally
accepted accounting principles in the United States of America.
“Governmental
Authority”
means
the
government of the United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers
or
functions of or pertaining to government (including any supra-national bodies
such as the European Union or the European Central Bank).
“Guarantee”
of
or by any
Person (the “guarantor”)
means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the “primary
obligor”)
in any manner,
whether directly or indirectly, and including any obligation of the guarantor,
direct or indirect, (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
thereof in each case for the purpose
of
assuring the owner of such Indebtedness or other obligation of the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so
as to
enable the primary obligor to pay such Indebtedness or other obligation or
(d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided
that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
“Hazardous
Materials”
means
all
explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other hazardous
or
toxic substances or wastes of any nature regulated pursuant to any Environmental
Law.
“Hedging
Agreement”
means
any
interest rate protection agreement, foreign currency exchange agreement,
commodity price protection agreement or other interest or currency exchange
rate
or commodity price hedging arrangement.
“Holdco”
means
each of (a)
O&C Holdco; and (b) each intermediate holding company organized under the
laws of the State of Delaware (or other jurisdiction reasonably satisfactory
to
the Administrative Agent) for the purpose of holding the Equity Interests of
one
or more Subsidiaries acquired or formed after the Effective Date (A) the Equity
Interests in which are owned by FCX or PD but that is neither a Permitted
Pledgee nor a Subsidiary Guarantor and (B) which conducts a material business
or
holds Equity Interests in a Subsidiary that (1) conducts a material business,
(2) is not a Permitted Guarantor and (3) not all the Equity Interests in which
are Collateral.
“IFC
Guidelines”
means
the
International Finance Corporation (IFC) Safeguard Policies, summarized and
attached in Annex A to the ERM Report.
“Immaterial
Subsidiaries”
means
the
Subsidiaries, the combined assets and revenues of which, taken together with
all
the assets and revenues of their subsidiaries, represent less than 5% of
Consolidated Total Assets and less than 5% of Consolidated
Revenues.
“Incurrence
Test”
means,
as of any
date in connection with any proposed transaction, that immediately after giving
effect to such transaction on a pro forma basis as if such transaction had
occurred immediately prior to the first day of the period of four consecutive
fiscal quarters most recently ended in respect of which financial statements
have been delivered by FCX pursuant to Section 5.01 (or prior to such delivery,
such period ended December 31, 2006), (a) the Total Leverage Ratio on the last
day of such period shall not exceed 5.0 to 1.0, and (b) the Total Secured
Leverage Ratio on the last day of such period shall not exceed 3.0 to 1.0.
For
purposes of the Incurrence Test, Total Debt and Total Secured Debt shall be
increased or reduced, as applicable, to reflect all increases or decreases
to
the applicable Indebtedness following the applicable period.
“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 Disqualified Stock, (d) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding trade accounts payable and other accrued expenses
incurred in the ordinary course of business
and
deferred
compensation), (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 Indebtedness secured thereby has been assumed (other than a Lien on
Equity Interests of an Unrestricted Subsidiary securing obligations of such
Unrestricted Subsidiary and its Subsidiaries), (g) all Guarantees by such
Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person, (i) all obligations, contingent or otherwise, of such Person as an
account party (including reimbursement obligations to the issuer) in respect
of
letters of credit and letters of guaranty, which support or secure Indebtedness,
(j) all obligations in respect of any Metalstream Transaction described
under clause (a) of the definition thereof, all obligations in respect of any
Receivables Facility and all other obligations in respect of prepaid production
arrangements, prepaid forward sale arrangements or derivative contracts in
respect of which such Person receives upfront payments in consideration of
an
obligation to deliver product or commodities (or make cash payments based on
the
value of product or commodities) at a future time, and (k) all obligations,
contingent or otherwise, of such Person in respect of bankers’ acceptances;
provided,
however,
that no series of
preferred stock other than Disqualified Stock shall in any event be deemed
to be
Indebtedness. The Indebtedness of any Person shall include the Indebtedness
of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor. For purposes of determinations hereunder, the amount of
|
(A)
|
any
Receivables Facility shall be deemed at any time to be (1) the aggregate
principal or stated amount of the Indebtedness, fractional undivided
interests (which stated amount may be described as a “net investment” or
similar term reflecting the amount invested in such undivided interest)
or
other securities incurred or issued pursuant to such Permitted
Securitization, in each case outstanding at such time, or (2) in
the case
of any Permitted Securitization in respect of which no such Indebtedness,
fractional undivided interests or securities are incurred or issued,
the
cash purchase price paid by the buyer in connection with its purchase
of
Receivables less the amount of collections received in respect of
such
Receivables and paid to such buyer, excluding any amounts applied
to
purchase fees or discount or in the nature of interest;
and
|
|
(B)
|
any
other
transaction of any Person included under clause (j) above, at any
time,
(1) the amount thereof that would appear on a balance sheet of such
Person
prepared as of such date in accordance with GAAP or (2) if such
amount would not appear on such balance sheet, the amount that would
appear on a balance sheet of such Person prepared as of such date
in
accordance with GAAP if such transaction were accounted for as a
transaction that would appear on such balance sheet or (3) if such
amount
cannot be determined under clause (1) or (2), the amount reasonably
agreed
by FCX and the Administrative
Agent.
|
“Indemnified
Taxes”
means
Taxes other
than Excluded Taxes.
“Indonesian
Subsidiary”
means
PTFI, PTII
and each other Subsidiary that is organized under the laws of
Indonesia.
“Interest
Election Request”
means
a request
by the Borrower to convert or continue a Revolving Borrowing or Term Borrowing
in accordance with Section 2.06.
“Interest
Payment
Date”
means
(a) with respect to any ABR Loan (including a Swingline Loan), the last day
of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with
an
Interest Period of more than three months’ duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months’ duration
after the first day of such Interest Period.
“Interest
Period”
means, with
respect to any Eurodollar Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the calendar month
that is one, two, three, six or, to the extent made available by all the
applicable Lenders, nine or twelve, months thereafter, as the Borrower may
elect; provided
that (a) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless 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, (b) any
Interest Period that commences on the last Business Day of a calendar month
(or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day
of
the last calendar month of such Interest Period, and (c) the initial Interest
Period in respect of any Term Loans made on the Effective Date shall be the
period commencing on the Effective Date and ending on the last Business Day
of
March 2007. For purposes hereof, the date of a Borrowing initially shall be
the
date on which such Borrowing is made and thereafter shall be the effective
date
of the most recent conversion or continuation of such Borrowing.
“International
Support Inc.”
means
International Support Inc., a corporation organized under the laws of Delaware
and a wholly owned subsidiary of FCX.
“Investment”
means
purchasing,
holding or acquiring (including pursuant to any merger with any Person that
was
not a Wholly Owned Subsidiary prior to such merger) any Equity Interests,
evidences of indebtedness or other securities (including any option, warrant
or
other right to acquire any of the foregoing) of, or making or permitting to
exist any capital contribution or loans or advances to, guaranteeing any
obligations of, or making or permitting to exist any investment in, any other
Person, or purchasing or otherwise acquiring (in one transaction or a series
of
transactions) any assets of any Person constituting a business unit. The amount,
as of any date of determination, of any Investment shall be the original cost
of
such Investment (including any Indebtedness of a Person existing at the time
such Person becomes a Subsidiary in connection with any Investment and any
Indebtedness assumed in connection with any acquisition of assets), plus
the cost of all
additions, as of such date, thereto and minus
the amount, as of
such date, of any portion of such Investment repaid to the investor in cash
as a
repayment of principal or a return of capital, as the case may be, but without
any other adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment. In determining the
amount of any Investment involving a transfer of any property other than cash,
such property shall be valued at its fair market value at the time of such
transfer.
"Investment
Grade"
means, at any
time, that the Credit Ratings at such time are, respectively, Baa3 or better
and
BBB- or better.
"Investment
Grade
Date"
means the first
day on which the Credit Ratings are Investment Grade.
“Issuing
Bank”
means
each of
JPMCB and each other Lender acceptable to the Administrative Agent and the
Borrower that has entered into an Issuing Bank Agreement, in each case in its
capacity as an issuer of Letters of Credit hereunder, and its successors in
such
capacity as provided in Section 2.05(i); provided
that no Person
shall at any time become an Issuing Bank if after giving effect thereto there
would at such time be more than 5 Issuing Banks. Each Issuing Bank may, in
its
discretion but with the consent of the Borrower, arrange for one or more Letters
of Credit to be issued by Affiliates of such Issuing Bank, in which case the
term “Issuing Bank” shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.
“Issuing
Bank
Agreement”
means
an
agreement in the form of Exhibit C, or in any other form reasonably satisfactory
to the Administrative Agent, pursuant to which a Lender agrees to act as an
Issuing Bank.
“JPMCB”
has
the meaning
assigned to such term in the preamble to this Agreement.
“LC
Disbursement”
means
a payment
made by an Issuing Bank pursuant to a Letter of Credit.
“LC
Exposure”
means,
at any
time, the sum of (a) the aggregate undrawn amount of all outstanding
Letters of Credit at such time plus (b) the aggregate amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Borrower
at such time. The LC Exposure of any Lender at any time shall be its Applicable
Percentage of the total LC Exposure at such time.
“Lender
Affiliate”
means
(a) with respect to any Lender, (i) an Affiliate of such Lender or
(ii) any entity (whether a corporation, partnership, trust or otherwise)
that is engaged in making, purchasing, holding or otherwise investing in bank
loans and similar extensions of credit in the ordinary course of its business
and is administered or managed by a Lender or an Affiliate of such Lender and
(b) with respect to any Lender that is a fund which invests in bank loans
and similar extensions of credit, any other fund that invests in bank loans
and
similar extensions of credit and is managed by the same investment advisor
as
such Lender or by an Affiliate of such investment advisor.
“Lenders”
means
the Persons
listed on Schedule 2.01 and any other Person that shall have become a
lender hereunder pursuant to an Assignment and Assumption other than any person
that ceases to be a party hereto pursuant to an Assignment and Assumption.
Unless the context otherwise requires, the term “Lenders” includes the Swingline
Lender.
“Letter
of
Credit”
means
(i) any letter of credit issued pursuant to this Agreement and
(ii) the Existing Letters of Credit.
“LIBO
Rate”
means,
with
respect to any Eurodollar Borrowing for any Interest Period, the rate appearing
on the Reuters “LIBOR01” screen displaying British Bankers’ Association Interest
Settlement Rates (or on any successor or substitute page for such screen, or
any
successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such screen, as determined by the
Administrative Agent from time to time for purposes of providing quotations
of
interest rates applicable to dollar deposits in the London interbank market)
at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with
a
maturity comparable to such Interest Period. In the case of the initial Interest
Period for Term Borrowings, and in the event that such
rate
is not
available at the time of determination for any other Interest Period for any
reason, then the “LIBO
Rate”
with
respect to
such Eurodollar Borrowing for such Interest Period shall be the rate at which
dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative Agent
in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period.
“Lien”
means,
with
respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset,
and (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset.
“Loan
Documents”
means
this
Agreement, the Collateral Agreement, the FCX Pledge Agreements and the other
Security Documents.
“Loan
Parties”
means
FCX and
each Subsidiary Guarantor.
“Loans”
means
the loans
made by the Lenders to the Borrower pursuant to this Agreement.
“Long-Term
Indebtedness”
means
any
Indebtedness (excluding Indebtedness permitted by Section 6.01(a)(iii)) that,
in
accordance with GAAP, constitutes (or, when incurred, constituted) a long-term
liability.
“Material
Adverse
Effect”
means
a material
adverse effect on (a) the business, operations or financial condition of
the Borrower and its Restricted Subsidiaries, taken as a whole, (b) the
ability of any Loan Party to perform its obligations under any Loan Document
or
(c) the rights of or benefits available to the Lenders under the Loan
Documents.
“Material
Company”
has
the meaning
assigned to such term in clause (g) of Article VII.
“Material
Indebtedness”
means
Indebtedness (other than the Loans and Letters of Credit and Indebtedness under
the Restated Credit Agreement), Project Financings or obligations in respect
of
one or more Hedging Agreements, of the Borrower and/or any Restricted Subsidiary
in an aggregate principal amount or amount of Attributable Debt exceeding
$100,000,000. For purposes of determining Material Indebtedness, the “principal
amount” of the obligations of the Borrower or any Restricted Subsidiary in
respect of any Hedging Agreement at any time shall be the aggregate amount
(giving effect to any netting agreements) that the Borrower or such Restricted
Subsidiary would be required to pay if such Hedging Agreement were terminated
at
such time.
“Memorandum
of
Understanding”
means
the
Memorandum of Understanding dated as of December 27, 1991, between the
Ministry of Mines and Energy of the Government of the Republic of Indonesia,
and
PTFI.
“Merger”
means
the merger
between PD and Panther Acquisition Corporation, a Wholly Owned Subsidiary of
the
Borrower, pursuant to the Merger Agreement, whereby PD will be the surviving
entity of the Merger and will be a Wholly Owned Subsidiary of the Borrower
upon
the consummation thereof.
“Merger
Agreement”
means
the
Agreement and Plan of Merger, dated as of November 18, 2006, among the Borrower,
PD and Panther Acquisition Corporation.
“Merger
Consideration”
means
a payment
to shareholders of PD equal to $88.00 in cash plus
0.67 shares of
common stock of FCX for each share of common stock of PD.
“Metalstream
Transaction”
means
(a) a
transaction in which the Borrower or any Restricted Subsidiary incurs
obligations in respect of prepaid production arrangements, prepaid forward
sale
arrangements or derivative contracts in respect of which the Borrower or any
such Restricted Subsidiary receives upfront payments in consideration of an
obligation to deliver gold, copper or any other metal mined by the Borrower
and
its Restricted Subsidiaries (each, a “Qualified
Metal”)
(or make cash
payments based on the value of any Qualified Metal) at a future time or (b)
a
transaction in which the Borrower issues Equity Interests (other than
Disqualified Stock) providing for dividends based on the price of any Qualified
Metal or otherwise designed to track the price of any Qualified Metal and/or
the
Borrower’s production of any Qualified Metal. For the avoidance of doubt, a
Metalstream Transaction described under clause (a) shall for all purposes hereof
constitute Indebtedness and Funded Debt and a Metalstream Transaction described
under clause (b) hereof shall for all purposes hereof constitute Equity
Interests and the Net Proceeds thereof shall constitute Equity
Proceeds.
“Moody’s”
means
Xxxxx’x
Investors Service, Inc.
“Morenci
Business”
has
the meaning
assigned to such term in Section 6.03(d).
“Mortgage”
means
a mortgage,
deed of trust, assignment of leases and rents, leasehold mortgage or other
security document granting a Lien on any Mortgaged Property to secure the
Secured Obligations. Each Mortgage shall be reasonably satisfactory in form
and
substance to the Administrative Agent.
“Mortgaged
Property”
means,
initially,
each parcel of real property and the improvements thereto owned by a Loan Party
and identified on Schedule 1.01D, and includes each other parcel of real
property and the improvements thereto owned by a Loan Party with respect to
which a Mortgage is granted pursuant to Section 5.12 or 5.13.
“Multiemployer
Plan”
means
a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net
Proceeds”
means,
with
respect to any event (a) the cash proceeds received in respect of such
event including (i) any cash received in respect of any non-cash proceeds,
but only as and when received, (ii) in the case of a casualty, insurance
proceeds, and (iii) in the case of a condemnation or similar event,
condemnation awards and similar payments, net of (b) the sum of
(i) all fees and out-of-pocket expenses paid by the Borrower or any
Restricted Subsidiary to third parties in connection with such event,
(ii) in the case of a sale, transfer or other disposition of an asset
(including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), (A) the amount of all payments required
to
be made by the Borrower or any Restricted Subsidiary as a result of such event
to repay Indebtedness (other than Loans) secured by such asset or otherwise
subject to mandatory prepayment as a result of such event and (B) if such sale,
transfer or other disposition includes the sale of one or more operating
businesses, divisions or operating units, the amount of all liabilities,
including accounts payable, directly arising from the operations of such
business, division or
operating
unit that
are retained by the Borrower and the Restricted Subsidiaries, (iii) the
amount of all taxes paid (or reasonably estimated to be payable) (including,
in
the case of any such event in respect of any Foreign Subsidiary, taxes payable
upon the repatriation of such proceeds to the United States) by the Borrower
and
the Restricted Subsidiaries, and (without duplication for the amount of any
liability netted under clause (ii)(B) above) the amount of any reserves
established by the Borrower and the Restricted Subsidiaries to fund contingent
liabilities reasonably estimated to be payable, in each case during the year
that such event occurred or the next succeeding year and that are directly
attributable to such event (as determined reasonably and in good faith by the
chief financial officer of the Borrower), and (iv) in the case of any such
proceeds received by a Subsidiary that is not a Wholly Owned Subsidiary, the
portion of such proceeds attributable to the minority interests in such
Subsidiary.
“Non-Recourse
Indebtedness”
means,
with
respect to any Person and its assets, Indebtedness the obligees of which will
not have, directly or indirectly, recourse (including by way of any Guarantee
or
other undertaking, agreement or instrument that would constitute Indebtedness)
for repayment of any principal, premium (if any), or interest on such
Indebtedness or any fees, indemnities, expense reimbursements or other amounts
of whatever nature accrued or payable in connection with such Indebtedness
against any assets of such Person other than pursuant to any pledge of specified
assets of such Person and other than a completion Guarantee by FCX provided
under Section 6.01(a)(xi).
“O&C
Holdco”
means
PD Chile
Finance Company, a Delaware corporation.
“Obligations”
means
the
obligations of the Borrower hereunder and of the Borrower and the other Loan
Parties under the other Loan Documents, including, without limitation, (a)
the
due and punctual payment by the Borrower of (i) the principal of and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or similar proceeding, regardless of whether allowed or allowable
in such proceeding) on the Loans, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (ii)
each
payment required to be made under this Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon, and any obligation to provide cash collateral,
and (iii) all other monetary obligations of the Borrower under this Agreement
or
any other Loan Document, including in respect of fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including any monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or similar proceeding, regardless of
whether allowed or allowable in such proceeding), (b) the due and punctual
performance of all other obligations of the Borrower under or pursuant to this
Agreement and each other Loan Document, and (c) the due and punctual payment
and
performance of all of the obligations of each other Loan Party under or pursuant
to each of the other Loan Documents.
“Other
Taxes”
means
any and all
present or future recording, stamp, documentary, excise, transfer, sales,
property or similar taxes, charges or levies arising from any payment made
under
any Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, any Loan Document.
“parent”
has
the meaning
assigned thereto in the definition of “subsidiary”.
“Partial
Stock
Pledge Condition”
means
a pledge by
FCX pursuant to the Fourth Amended and Restated FCX Pledge Agreement (PTFI
Shares), to secure the Secured Obligations, the Ratable FCX Obligations and
the
FI Obligations, of a portion of the Equity Interests in PTFI that does not
satisfy the Full Stock Pledge Condition but is not (together with the Equity
Interest in PTFI held by PTII) less than 50.1% of all the Equity Interests
in
PTFI.
“Participant”
has
the meaning
set forth in Section 9.04(c).
“Participation
Agreement”
means
the
Participation Agreement dated October 11, 1996 between PTFI and PT-Rio
Tinto Indonesia, as amended by the First Amendment dated April 30,
1999.
“Patriot
Act”
means
the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed
into
law October 26, 2001)).
“PBGC”
means
the Pension
Benefit Guaranty Corporation referred to and defined in ERISA and any successor
entity performing similar functions.
“PD”
means
Xxxxxx
Dodge Corporation, a New York corporation.
“PD
Credit
Agreement”
means
the Credit
Agreement dated as of April 20, 2004, as amended, among PD, the lenders party
thereto and Citibank, N.A., as administrative agent.
“Perfection
Certificate”
means
the
perfection certificate executed by the Borrower substantially in the form of
Exhibit B-1.
“Permitted
Encumbrances”
means:
(a)
Liens for
taxes, assessments and other governmental charges or levies not at the time
delinquent or which are being contested in compliance with Section 5.05 or
secure amounts that are not material to the value of the properties to which
such Liens attach (it being understood that for purposes of this paragraph
(a)
all the Mortgaged Properties covered by a single Mortgage shall be deemed to
be
a single real property);
(b)
Liens imposed
by law, including landlords’, carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not overdue by
more than 30 days or are being contested in compliance with Section 5.05 or
secure amounts that are not material to the value of the properties to which
such Liens attach (it being understood that for purposes of this paragraph
(b)
all the Mortgaged Properties covered by a single Mortgage shall be deemed to
be
a single real property);
(c)
pledges,
deposits or Liens under workmen’s compensation laws, unemployment insurance
laws, social security laws or similar legislation, or insurance related
obligations (including pledges or deposits securing liability to insurance
carriers under insurance or self-insurance arrangements), or in connection
with
bids, tenders, contracts (other than for borrowed money) or leases, or to secure
utilities, licenses, public or statutory obligations, or to secure surety,
indemnity, judgment, appeal or performance bonds, guarantees of
government
contracts (or other similar bonds, instruments or obligations), or as security
for contested taxes or import or customs duties or for the payment of rent,
or
other obligations of like nature, in each case incurred in the ordinary course
of business;
(d)
judgment liens
in respect of judgments that do not constitute an Event of Default under clause
(j) of Article VII;
(e)
Liens in favor
of issuers of surety, performance or other bonds, guarantees or letters of
credit or bankers’ acceptances (not issued to support Indebtedness or
Attributable Debt) issued pursuant to the request of and for the account of
the
Borrower or any Restricted Subsidiary in the ordinary course of its
business;
(f)
encumbrances,
ground leases, easements (including reciprocal easement agreements), survey
exceptions, or reservations of, or rights of others for, licenses, rights of
way, sewers, canals, ditches, water rights, highways, roads, railroads, fences,
oil and gas leases, electric lines, data communications, and telephone lines
and
other similar purposes, or zoning, building codes or other restrictions
(including minor defects or irregularities in title and similar encumbrances)
as
to the use of the real properties or Liens incidental to the conduct of the
business of the Borrower and its Restricted Subsidiaries or to the ownership
of
its properties which do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of
the
business of the Borrower and its Restricted Subsidiaries (it being understood
that for purposes of this paragraph (f) all the Mortgaged Properties covered
by
a single Mortgage shall be deemed to be a single real property);
(g)
contractual
Liens which arise in the ordinary course of business under operating agreements,
joint venture agreements, partnership agreements, leases, area of mutual
interest agreements, royalty agreements, marketing agreements, processing
agreements, development agreements, and other agreements which are usual and
customary in the mining business;
(h)
leases,
licenses, subleases and sublicenses of assets (including real property and
intellectual property rights), in each case entered into in the ordinary course
of business;
(i)
Liens arising
by virtue of any statutory or common law provisions relating to banker’s Liens,
rights of set-off or similar rights and remedies as to deposit accounts or
other
funds maintained with a depositary or financial institution;
(j)
Liens arising
from Uniform Commercial Code financing statement filings (or similar filings
in
other applicable jurisdictions) regarding operating leases entered into by
the
Borrower and its Restricted Subsidiaries in the ordinary course of
business;
(k)
any interest or
title of a lessor under any operating lease;
(l)
(i) mortgages,
liens, security interests, restrictions, encumbrances or any other matters
of
record that have been placed by any government, statutory or regulatory
authority, developer, landlord or other third party on property over which
the
Borrower or any Restricted Subsidiary has easement rights or on any
leased
property and
subordination or similar arrangements relating thereto and (ii) any condemnation
or eminent domain proceedings affecting any real property;
(m)
any encumbrance
or restriction (including put and call arrangements) with respect to Equity
Interests of any joint venture or similar arrangement pursuant to any joint
venture or similar agreement;
(n)
Liens on
property or assets under construction (and related rights) in favor of a
contractor or developer or arising from progress or partial payments by a third
party relating to such property or assets;
(o)
Liens securing
or arising by reason of any netting or set-off arrangement entered into in
the
ordinary course of banking or other trading activities or Liens over cash
accounts securing cash pooling arrangements; and
(p)
Liens arising
out of conditional sale, title retention, hire purchase, consignment or similar
arrangements for the sale of goods entered into in the ordinary course of
business;
provided
that, except for
Permitted Encumbrances referred to in clause (e) above, the term “Permitted
Encumbrances” shall not include any Lien securing Indebtedness or Attributable
Debt.
“Permitted
Guarantors”
means,
at any
time, PTII and each Wholly Owned Subsidiary, other than (i) any Indonesian
Subsidiary (other than PTII), (ii) CFCs and (iii) Subsidiaries that are
precluded from providing a Guarantee by the terms of their organizational
documents (including shareholders and similar agreements) or Project Financing
Documents.
“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 (or by any agency
thereof to the extent such obligations are backed by the full faith and credit
of the United States of America), in each case maturing within one year from
the
date of acquisition thereof;
(b)
Investments in
commercial paper maturing within 270 days from the date of acquisition thereof
and having, at such date of acquisition, a credit rating from S&P of A-2 or
higher or from Moody’s of P-2 or higher;
(c)
Investments in
certificates of deposit, banker’s acceptances and time deposits maturing within
one year after the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any commercial
bank which has a short term deposit rating issued by Moody’s of P 2 or higher or
by S&P of A-2 or higher;
(d)
short-term tax
exempt securities rated not lower than MIG-1/+1 by either Moody’s or S&P
with provisions for liquidity or maturity accommodations of 183 days or
less;
(e)
repurchase
agreements relating to securities described in clause (a), (b), (c) and (d)
above and maturity not less than one year thereafter;
(f)
Investments in
money market or similar funds not less than 95% of the assets of which are
comprised of assets of the types described in clause (a), (b), (c), (d) and
(e)
above; and
(g)
in the case of
any Subsidiary organized or having its principal place of business outside
the
United States, investments denominated in the currency of the jurisdiction
in
which such Subsidiary is organized or has its principal place of business which
are similar to the assets referred to in clauses (a), (b), (c), (d), (e) and
(f)
above.
“Permitted
Pledgee”
means,
at any
time, PTFI, PTII and each directly owned Restricted Subsidiary of any Loan
Party
(or of any other Restricted Subsidiary (other than a CFC) that is not a Loan
Party but is not precluded from pledging Equity Interests) and each subsequently
acquired or organized subsidiary of the Borrower or any Guarantor (or such
a
non-Guarantor), other than (i) any Indonesian Subsidiary (other than PTFI and
PTII) and (ii) subsidiaries the Equity Interests in which are precluded from
being pledged by the terms of their issuer’s (or such issuer’s subsidiary’s)
organizational documents (including shareholders and similar agreements) or
by
applicable Project Financing Documents.
“Permitted
Refinancing”
means,
with
respect to any Indebtedness or Attributable Debt, any extensions, renewals
and
replacements of such Indebtedness or Attributable Debt that (a) do not
constitute Indebtedness or Attributable Debt of an obligor that was not an
obligor with respect to the Indebtedness or Attributable Debt being extended,
renewed or replaced (or result in Non-Recourse Indebtedness ceasing to be
Non-Recourse Indebtedness), (b) do not increase the outstanding principal amount
thereof by more than the sum of all accrued and unpaid interest thereon at
the
time of such extension, renewal or replacement and any fees or premiums paid
in
connection with such extension, renewal or replacement, (c) do not result in
an
earlier maturity date that is prior to the date six months after the Tranche
B
Maturity Date or decreased weighted average life thereof and (d) are not secured
by Liens on any assets other than the assets that secured the Indebtedness
or
Attributable Debt extended, renewed or replaced, provided
that any such
extending, renewing or replacing Indebtedness in respect of the Atlantic Copper
Financing may be in an aggregate principal amount not to exceed
$175,000,000.
“Permitted
Secured Hedge”
means
any Hedging
Agreement between FCX or any Restricted Subsidiary (a) if entered into prior
to
the date hereof, with a counterparty that is a Lender (or Affiliate of a Lender)
under this Agreement or the Restated Credit Agreement on the date hereof or
(b)
if entered into on or after the date hereof, with a counterparty that is a
Lender or Affiliate of a Lender under this Agreement or the Restated Credit
Agreement at the time such Hedging Agreement is entered into.
“Person”
means
any natural
person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other
entity.
“Plan”
means
any
employee pension benefit plan (other than a Multiemployer Plan) subject to
the
provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, 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.
“Pledged
PTFI
Shares”
means
all shares
of capital stock of PTFI owned directly by FCX and pledged pursuant to the
Fourth Amended and Restated FCX Pledge Agreement (PTFI Shares).
“Pledged
PTII
Shares”
means,
prior to
any merger of PTII into PTFI, all shares of the capital stock of PTII owned
by
FCX or any Subsidiary of FCX, all of which are required to be pledged pursuant
to the Third Amended and Restated FCX/ISI Pledge Agreement (PTII Shares). On
the
Effective Date, the Pledged PTII shares represent 100% of the issued and
outstanding shares of PTII.
“Prepayment
Event”
means:
(a)
any sale,
transfer or other disposition (including pursuant to a sale and leaseback
transaction and by way of merger or consolidation) of any property or asset
of
the Borrower or any Restricted Subsidiary, including any sale or issuance of
Equity Interests in any Restricted Subsidiary, other than (i) dispositions
permitted by clauses (i) and (ii) of Section 6.05(b), (ii) dispositions
incidental to the creation of Indebtedness of the types included in clause
(j)
of the definition of “Indebtedness” and (iii) other dispositions resulting in
aggregate Net Proceeds not exceeding $50,000,000 in the case of any single
transaction or series of related transactions;
(b)
any casualty or
other insured damage to, or any taking under power of eminent domain or by
condemnation or similar proceeding of, any property or asset of the Borrower
or
any Restricted Subsidiary with a fair market value immediately prior to such
event equal to or greater than $50,000,000;
(c)
a Metalstream
Transaction described under clause (b) of the definition of “Metalstream
Transaction” or the issuance by the Borrower after the Effective Date of its
common stock or preferred stock (other than Disqualified Stock), other than
any
such issuance of common stock or preferred stock of the Borrower to management
or employees of the Borrower or any Subsidiary under any employee stock option
or stock purchase plan or other employee benefit plan in existence from time
to
time;
(d)
the incurrence
by the Borrower or any Restricted Subsidiary after the Effective Date of any
Indebtedness, other than Indebtedness permitted under Section 6.01 (other than
the incurrence of Indebtedness incurred under Section 6.01(a)(ix) which shall
be
a “Prepayment Event”) or permitted by the Required Lenders pursuant to Section
9.02; or
(e)
the transfer of
accounts or other assets in connection with the establishment of a US
Receivables Facility and any subsequent transfer of accounts or other assets
that results in an increase in the aggregate funded amount of any US Receivables
Facility over the greatest aggregate amount thereof previously outstanding
(it
being understood that no Prepayment Event shall exist in respect of a
refinancing or replacement of one US Receivables Facility with a second to
the
extent that the amount of the second does not exceed the greatest aggregate
amount previously outstanding of the first US Receivables
Facility).
“Prime
Rate”
means
the rate of
interest per annum publicly announced from time to time by JPMorgan Chase Bank,
N.A., as its prime rate in effect at its principal office in New York City;
each
change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.
“Principal
Issuing Bank”
means
JPMCB and
any other Issuing Bank whom the Borrower and the Administrative Agent agree
will
be a Principal Issuing Bank (or any of their Affiliates that shall act as
Issuing Banks hereunder).
“Project
Financing”
means
Indebtedness or a sale leaseback of assets of a Subsidiary the proceeds of
which
are applied to fund new acquisition, exploration, development or expansion
by,
or upgrades of the assets of, such Subsidiary that is secured by the assets
of
such Subsidiary or the incurrence of Attributable Debt in connection with a
sale
and leaseback transaction involving such assets; provided
that “Project
Financing”
shall
not include
any Indebtedness or Attributable Debt the proceeds of which are applied to
acquire a going concern.
“Project
Financing Assets”
means,
with
respect to any Project Financing, the assets of the new acquisition,
exploration, development or expansion, or the assets the upgrade of which is,
funded by such Project Financing.
“Project
Financing Documents”
means
each of the
operative documents relating to any Project Financing, including asset purchase
agreements, lease agreements, joint venture agreements, guarantee agreements
and
participation agreements, to which FCX, PTFI or any Restricted Subsidiary is
a
party.
“Project
Financing Subsidiary”
means,
with
respect to any Project Financing, the Subsidiary that is the primary obligor
in
respect of such Project Financing.
“Proscribed
Consolidation”
has
the meaning
assigned to such term in Section 6.03(a).
“PTFI”
means
PT Freeport
Indonesia, a limited liability company organized under the laws of the Republic
of Indonesia and domesticated under the laws of Delaware as a
corporation.
“PTFI
Shares”
means
capital
stock of PTFI.
“PTII”
means
PT
Indocopper Investama Tbk, a corporation organized under the laws of
Indonesia.
“PTII
Shares”
means
capital
stock of PTII.
“PT-Rio
Tinto
Indonesia”
means
PT Rio
Tinto Indonesia (formerly P.T. RTZ-CRA Indonesia), a limited liability company
organized under the laws of Indonesia and a wholly owned subsidiary of
RTZ.
“PT-Rio
Tinto
Indonesia COW Assignment”
means
the
Assignment Agreement dated as of October 11, 1996 between PTFI and PT-Rio Tinto
Indonesia pursuant to which PTFI assigned a partial undivided interest in the
Contract of Work to PT-Rio Tinto Indonesia.
“Purchasing
Card
Program”
means
a
Purchasing Card Program established for FCX by a Revolving Lender, a “Lender”
under the Restated Credit Agreement or an Affiliate of a Revolving Lender or
such a “Lender”, pursuant to which such Revolving Lender, “Lender” or Affiliate
issues Purchasing Cards to employees and other accounts of FCX or any Restricted
Subsidiary, with an aggregate credit limit not to exceed $10,000,000 (including,
without limitation, for purchases made in foreign currencies and converted
into
U.S. dollars).
“Qualified
Stock”
means,
with
respect to any Person, any Equity Interests of such Person that are not
Disqualified Stock.
“Qualifying
PTFI
Sale Transaction”
means
(a) one or
more sales of the Pledged PTII Shares and/or of shares of PTFI which are owned
by the Borrower and do not constitute Collateral (after giving effect to any
release contemplated by Section 6.05(c)(iii)) or owned by PTII or (b) the
issuance from time to time by PTFI of shares of PTFI (in each case, the
“Transferred
Shares”)
which in the
case of clause (a) and clause (b) satisfies the following
requirements:
(i)
the aggregate
amount of shares of capital stock of PTFI which are, directly or indirectly,
sold, issued or transferred in such transaction does not exceed 9.36% of the
outstanding shares of capital stock of PTFI (shares of PTFI owned by PTII being
deemed transferred for purposes of the foregoing in the same proportion as
the
number of Pledged PTII Shares that are sold or transferred bears to the total
number of PTII Pledged Shares immediately prior to such Qualifying PTFI Sale
Transaction);
(ii)
such sale or
issuance is made for fair market value to a Governmental Authority of the
Republic of Indonesia (including a regional Governmental Authority), an
investment vehicle majority owned and Controlled by such a Governmental
Authority and/or Indonesian citizens or legal entities organized under the
laws
of Indonesia that are Controlled by Indonesian citizens, in each case which
qualifies as an “Indonesian National” within the meaning of Article 24(2) of the
Contract of Work and which is not an Affiliate of FCX;
(iii)
the
consideration for such sale or issuance consists of cash, a promissory note
or a
combination of cash and a promissory note; provided that any such promissory
note shall be secured by, and payable with any dividends, distributions or
proceeds on or in respect of, all the Transferred Shares (which promissory
note
may be nonrecourse to any such Governmental Authority);
(iv)
to the extent
payable to the Borrower or, on or after the Additional Collateral Date, any
other Loan Party, any such promissory note and all proceeds thereof are pledged
at the time any such sale is consummated to the Administrative Agent, for the
benefit of the Secured Parties, pursuant to the Collateral Agreement or other
pledge arrangements satisfactory to the Administrative Agent; and
(v)
the
Administrative Agent shall have received such favorable opinions of outside
counsel to the Borrower as it may reasonably request in connection with the
foregoing.
“Ratable
Obligations”
means
the Ratable
FCX Obligations, the Ratable Cyprus Obligations and, on and after the Additional
Collateral Date, the PD Ratable Obligations. “Ratable
FCX
Obligations”
means
the
Existing Indebtedness of FCX set forth on Schedule 1.01C-1. “Ratable
Cyprus
Obligations”
means
the
Existing Indebtedness of PD set forth on Schedule 1.01C-2. “Ratable
PD
Obligations”
means
the
Existing Indebtedness of PD set forth on Schedule 1.01C-3. A “Ratable
Guarantee”
with
respect to
any Ratable Obligation shall mean a Guarantee of such Indebtedness provided
by a
Loan Party specified opposite such Ratable Obligation on Schedule 1.01C in
the
column titled “Ratable Guarantees”. A “Ratable
Lien”
with
respect to
any Ratable Obligation shall mean a Lien securing such Indebtedness created
under a Loan Document
encumbering
assets
specified opposite such Ratable Obligation on Schedule 1.01C in the column
titled “Ratable Liens”.
“Receivables
Facility”
means
any of one
or more receivables financing facilities, as amended, supplemented, modified,
extended, renewed, restated, refunded, replaced or refinanced from time to
time,
the Indebtedness of which is non-recourse (except for Standard Receivables
Facility Undertakings) to the Borrower or any Restricted Subsidiary (other
than
any Receivables Subsidiary), pursuant to which the Borrower or any of the
Restricted Subsidiaries sells its accounts, payment intangibles and related
assets or interests therein to either (a) a Person that is not a Restricted
Subsidiary or (b) a Receivables Subsidiary that in turn sells its accounts,
payment intangibles and related assets to a Person that is not a Restricted
Subsidiary.
“Receivables
Facility Repurchase Obligation”
means
any
obligation of the Borrower or a Restricted Subsidiary that is a seller of assets
in a Receivables Facility to repurchase the assets it sold thereunder as a
result of a breach of a representation, warranty or covenant or otherwise,
including as a result of a receivable or portion thereof becoming subject to
any
asserted defense, dispute, offset or counterclaim of any kind as a result of
any
action taken by, any failure to take action by or any other event relating
to
the seller.
“Receivables
Subsidiary”
means
any
Subsidiary formed solely for the purpose of engaging, and that engages only,
in
one or more Receivables Facilities.
“Related
Parties”
means,
with
respect to any specified Person, such Person’s Affiliates and the respective
directors, officers, employees, agents, trustees and advisors of such Person
and
such Person’s Affiliates.
“Required
Lenders”
means,
at any
time, Lenders having Revolving Exposures, Term Loans and unused Commitments
(other than Swingline Commitments) representing more than 50% of the aggregate
Revolving Exposures, outstanding Term Loans and unused Commitments (other than
Swingline Commitments) at such time.
“Required
Revolving Lenders”
means,
at any
time, Revolving Lenders having Revolving Exposures and unused Revolving
Commitments representing more than 50% of the aggregate Revolving Exposures
and
unused Revolving Commitments at such time.
“Restated
Credit
Agreement”
means
the
Existing Credit Agreement as amended and restated as of the date
hereof.
“Restricted
Indebtedness”
means
any
Indebtedness of the Borrower or any Restricted Subsidiary, the payment,
prepayment, redemption, repurchase or defeasance of which is restricted under
Section 6.08.
“Restricted
Payment”
means
any
dividend or other distribution (whether in cash, securities or other property)
with respect to any Equity Interests in the Borrower or any Restricted
Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancelation or termination of any Equity
Interests (including any payment under a Synthetic Purchase Agreement related
to
any Equity Interests) in the Borrower or any Restricted Subsidiary or any
option, warrant or other right to acquire any such Equity Interests in the
Borrower or any Restricted Subsidiary.
“Restricted
Subsidiary”
means,
at any
time (a) PD, (b) PTFI and (c) each other Subsidiary of FCX that is not at such
time an Unrestricted Subsidiary. As of the Effective Date, all the Subsidiaries
are Restricted Subsidiaries.
“Restricted
Uses”
means,
as of any
date, (a) the portion of the Unrestricted Subsidiary Investment Amount that
constituted Restricted Uses at the time of the applicable Investment or
Designation (it being understood that reductions to the Unrestricted Subsidiary
Investment Amount under clause (d) of the definition thereof shall be allocated
to reduce Restricted Uses until the Unrestricted Subsidiary Investment Amount
is
reduced to 1% of Consolidated Total Assets); plus
(b) the aggregate
cumulative amount of all Restricted Payments made pursuant to Section
6.08(a)(iv) and, to the extent expressly applied to the Restricted Uses Basket
thereunder, Section 6.08(a)(iii); plus
(c) the aggregate
amount of payments of Indebtedness made pursuant to Section 6.08(b)(vii);
plus
(d) the aggregate
amount of Equity Proceeds applied to prepay Loans under Section 2.10(c);
plus
(e) for (i) each
Synthetic Purchase Agreement that is outstanding, the amount of payments made
thereunder on or prior to the time of determination plus the maximum amount
of
payments that may thereafter may be required to be made by FCX or any Restricted
Subsidiary during the term of such Synthetic Purchase Agreement (determined
for
each Synthetic Purchase Agreement on the date upon which it is entered into
and
adjusted on each date upon which it is modified) and (ii) each Synthetic
Purchase Agreement that has terminated and under which no further payment
obligations exist, the amount of payments made thereunder during the term
thereof.
“Restricted
Uses
Basket”
means,
at any
time, the sum at such time of (a) $500,000,000; plus
(b) 50% of
cumulative Consolidated Adjusted Net Income (net of any negative amounts) for
each fiscal quarter for which financial statements shall have been delivered
pursuant to Section 5.01(a) or (b) (commencing with the fiscal quarter ending
March 31, 2007); plus
(c) Equity
Proceeds; plus
(d) the amount by
which Indebtedness of FCX or its Restricted Subsidiaries is reduced on FCX’s
balance sheet upon the conversion or exchange (other than by a Subsidiary)
subsequent to the Effective Date of any Indebtedness of FCX or its Restricted
Subsidiaries which is convertible or exchangeable for Equity Interests (other
than Disqualified Stock) of FCX (less the amount of any cash or the fair market
value of other property distributed by FCX or any Restricted Subsidiary upon
such conversion or exchange).
“Revolving
Availability Period”
means
the period
from and including the Effective Date to but excluding the earlier of the
Revolving Maturity Date and the date of termination of the Revolving
Commitments.
“Revolving
Commitment”
means,
with
respect to each Lender, the commitment, if any, of such Lender to make Revolving
Loans and to acquire participations in Letters of Credit and Swingline Loans
hereunder, expressed as an amount representing the maximum possible aggregate
amount of such Lender’s Revolving Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender’s Revolving
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Revolving Commitment,
as
the case may be. The initial aggregate amount of the Lenders’ Revolving
Commitments is $1,000,000,000.
“Revolving
Exposure”
means,
with
respect to any Lender at any time, the sum of the outstanding principal amount
of such Lender’s Revolving Loans and its LC Exposure and Swingline Exposure at
such time.
“Revolving
Lender”
means
a Lender
with a Revolving Commitment or, if the Revolving Commitments have terminated
or
expired, a Lender with Revolving Exposure.
“Revolving
Loan”
means
a Loan made
pursuant to clause (c) of Section 2.01.
“Revolving
Maturity Date”
means
March 19,
2012.
“RS
Designation”
has
the meaning
assigned to such term in Section 6.13(b).
“RTZ”
means
Rio Tinto
plc (formerly RTZ Corporation PLC), a company organized under the laws of
England.
“RTZ
Interests”
means
the
interests of PT-Rio Tinto Indonesia in the Contract of Work and certain jointly
held assets pursuant to the Participation Agreement and in the Concentrate
Sales
Agreements of PTFI pursuant to the FI Trust Agreement.
“S&P”
means
Standard
& Poor’s.
“Secured
Obligations”
means
(a) the
Obligations, (b) the due and punctual payment and performance of all obligations
of the Borrower or any Restricted Subsidiary under each Permitted Secured Hedge,
(c) the due and punctual payment and performance of all obligations owed from
time to time by the Borrower or any Restricted Subsidiary to JPMCB, a Lender
under this Agreement or the Restated Credit Agreement or any of their Affiliates
in respect of cash management services provided to the Borrower or any
Restricted Subsidiary and (d) the due and punctual payment and performance
of
all obligations owed from time to time by the Borrower or any Restricted
Subsidiary to Revolving Lenders, “Lenders” under the Restated Credit Agreement
or Affiliates thereof in respect of any Purchasing Card Program, in each case
including obligations in respect of overdrafts, temporary advances, interest
and
fees.
“Secured
Parties”
means
the
Administrative Agent, the Issuing Banks, the Collateral Agent, the Security
Agent, the Syndication Agent, the Lenders, each counterparty to a Permitted
Secured Hedge, any Lender or any of their Affiliates providing cash management
services to FCX or any Restricted Subsidiary, or any Revolving Lender, any
“Lender” under the Restated Credit Agreement or any of their Affiliates
providing any Purchasing Card Program to FCX or any Restricted Subsidiary,
and
the successors and assigns of the foregoing.
“Security
Agent”
means
JPMCB, not
in its individual capacity, but as Security Agent for the lenders under the
Restated Credit Agreement.
“Security
Documents”
means
the
Collateral Agreement, the Additional Collateral Agreement, the Foreign Pledge
Agreements, the Affiliate Subordination Agreement, the Mortgages, the other
Additional Security Documents, each control agreement delivered pursuant to
the
Collateral Agreement or the Additional Collateral Agreement and each other
security agreement or other instrument or document executed and delivered
pursuant to Section 5.12 or 5.13 to secure any of the
Obligations.
“Senior
Notes”
means
(a) the
$6,000,000,000 aggregate principal amount of unsecured senior notes due 2015
and
unsecured senior notes due 2017 issued by the Borrower on the Effective Date
in
a public offering or in a Rule 144A or other private placement and (b) any
substantially identical senior notes that are registered under the Securities
Act of 1933, as amended, and issued in exchange for the senior notes described
in clause (a) of this definition.
“Senior
Notes
Documents”
means
the
indenture under which the Senior Notes are issued and all other instruments,
agreements and other documents evidencing or governing the Senior Notes,
providing for any Guarantee or other right in respect thereof, affecting the
terms of the foregoing or entered into in connection therewith and all
schedules, exhibits and annexes to each of the foregoing.
“Significant
Subsidiary”
means
any
Subsidiary of the Borrower that satisfies the criteria for a “significant
subsidiary” set forth in Rule 1.02(w) of Regulation S-X under the Securities
Exchange Act of 1934, as amended.
“Specified
Representations”
means
the
representations of the Borrower contained in the Loan Documents relating to
corporate power and authority to enter into the Loan Documents, due execution,
delivery and enforceability of the Loan Documents, Federal Reserve margin
regulations, the Investment Company Act and, subject to clause (F) of the
definition of Collateral and Guarantee Requirement, the perfection and required
priority of the security interests granted in the Collateral.
“Standard
Receivables Facility Undertakings”
means
representations, warranties, covenants and indemnities entered into by the
Borrower or any Restricted Subsidiary that the Borrower has determined in good
faith to be customary in financings similar to a Receivables Facility,
including, without limitation, those relating to the servicing of the assets
of
a Receivables Facility Subsidiary, it being understood that any Receivables
Facility Repurchase Obligation shall be deemed to be a Standard Receivables
Facility Undertaking.
“subsidiary”
means,
with
respect to any Person (the “parent”)
at any date, any
corporation, limited liability company, partnership, association or other entity
the accounts of which would be consolidated with those of the parent in the
parent’s consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50%
of
the ordinary voting power or, in the case of a partnership, more than 50% of
the
equity or more than 50% of the general partnership interests are, as of such
date, owned, Controlled or held by the parent or one or more subsidiaries of
the
parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary”
means
any
subsidiary of the Borrower. For purposes of the representations and warranties
made herein on (and the conditions to borrowing on) the date hereof and on
the
Effective Date, the term “Subsidiary” includes PD and its
subsidiaries.
“Subsidiary
Guarantor”
means
each
Subsidiary that Guarantees the Secured Obligations under a Loan
Document.
“Swingline
Commitment”
means
the
commitment of the Swingline Lender to make Swingline Loans.
“Swingline
Exposure”
means,
at any
time, the aggregate principal amount of all Swingline Loans outstanding at
such
time. The Swingline Exposure of any Lender at any time shall be its Applicable
Percentage of the Swingline Exposure at such time.
“Swingline
Lender”
means
JPMorgan
Chase Bank, N.A., in its capacity as lender of Swingline Loans
hereunder.
“Swingline
Loan”
means
a Loan made
pursuant to Section 2.19.
“Syndication
Agent”
means
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, in its capacity as syndication
agent for the Lenders hereunder.
“Synthetic
Purchase Agreement”
means
any swap,
derivative or other agreement or combination of agreements pursuant to which
the
Borrower or any Restricted Subsidiary is or may become obligated to make
(i) any payment in connection with a purchase by any third party from a
Person other than the Borrower or any Restricted Subsidiary of any Equity
Interest or Restricted Indebtedness or (ii) any payment (other than on
account of a permitted purchase by it of any Equity Interest or any Restricted
Indebtedness) the amount of which is determined by reference to the price or
value at any time of any Equity Interest or Restricted Indebtedness;
provided
that no phantom
stock or similar plan providing for payments only to current or former
directors, officers or employees of the Borrower or any Restricted Subsidiary
(or to their heirs or estates) shall be deemed to be a Synthetic Purchase
Agreement.
“Taxes”
means
any and all
present or future taxes, levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.
“Term
Commitments”
means
the Tranche
A Commitments and the Tranche B Commitments.
“Term
Loans”
means
the Tranche
A Term Loans and the Tranche B Term Loans.
“Third
Amended
and Restated FCX/ISI Pledge Agreement (PTII Shares)”
means
an amended
and restated pledge agreement pursuant to which each of FCX and ISI grants
a
perfected first priority security interest under Indonesian law in the Pledged
PTII Shares for the ratable benefit of the holders of the Obligations, the
FCX
Ratable Obligations and the FI Obligations.
“Total
Debt”
means,
as of any
date, the sum as of such date of (a) the aggregate principal amount of Funded
Debt of the Borrower and the Restricted Subsidiaries outstanding as of such
date, in the amount that would be reflected as a liability on a balance sheet
prepared as of such date on a consolidated basis in accordance with GAAP,
plus
(b), without
duplication of amounts included in clause (a), the aggregate amount of
Attributable Debt of the Borrower and the Restricted Subsidiaries outstanding
as
of such date, minus
(c) the lesser as
of such date of (i) $1,000,000,000 and (ii) the aggregate amount of Available
Domestic Cash.
“Total
Leverage
Ratio”
means,
on any
date, the ratio of (a) Total Debt as of the last day of the fiscal quarter
of FCX ended on such date or most recently prior to such date to
(b) Consolidated EBITDA for the period of four consecutive fiscal quarters
of FCX ended on such date or most recently prior to such date.
“Total
Secured
Debt”
means,
as of any
date, the sum as of such date of (a) the aggregate principal amount of Funded
Debt of the Borrower and the Restricted Subsidiaries outstanding as of such
date
that is secured by any asset of the Borrower or any Restricted Subsidiary,
in
the amount that would be reflected as a liability on a balance sheet prepared
as
of such date on a consolidated basis in accordance with GAAP, plus
(b), without
duplication of amounts included in clause (a), the aggregate amount of
Attributable Debt of the Borrower and the Restricted Subsidiaries outstanding
as
of such date, minus
(c) the lesser as
of such date of (i) $1,000,000,000 and (ii) the aggregate amount of Available
Domestic Cash.
“Total
Secured
Leverage Ratio”
means,
on any
date, the ratio of (a) Total Secured Debt as of the last day of the fiscal
quarter of FCX ended on such date or most recently prior to such date to
(b) Consolidated EBITDA for the period of four consecutive fiscal quarters
of FCX ended on such date or most recently prior to such date.
“Tranche
A
Commitment”
means,
with
respect to each Lender, the commitment, if any, of such Lender to make a Tranche
A Term Loan hereunder on the Effective Date, expressed as an amount representing
the maximum principal amount of the Tranche A Term Loan to be made by such
Lender hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender’s Tranche A Commitment is set forth on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender shall have assumed
its
Tranche A Commitment, as the case may be. The initial aggregate amount of the
Lenders’ Tranche A Commitments is $2,500,000,000.
“Tranche
A
Lender”
means
a Lender
with a Tranche A Commitment or an outstanding Tranche A Term Loan.
“Tranche
A
Maturity Date”
means
March 19,
2012.
“Tranche
A Term
Loans”
means
Loans made
pursuant to clause (a) of Section 2.01.
“Tranche
B
Commitment”
means,
with
respect to each Lender, the commitment, if any, of such Lender to make a Tranche
B Term Loan hereunder on the Effective Date, expressed as an amount representing
the maximum principal amount of the Tranche B Term Loan to be made by such
Lender hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender’s Tranche B Commitment is set forth on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender shall have assumed
its
Tranche B Commitment, as the case may be. The initial aggregate amount of the
Lenders’ Tranche B Commitments is $7,500,000,000.
“Tranche
B
Lender”
means
a Lender
with a Tranche B Commitment or an outstanding Tranche B Term Loan.
“Tranche
B
Maturity Date”
means
March 19,
2014.
“Tranche
B Term
Loans”
means
Loans made
pursuant to clause (b) of Section 2.01.
“Transaction
Costs”
means
all fees,
costs and expenses (including fees paid for consulting and financial services)
incurred or payable by the Borrower or any Subsidiary in connection with the
Transactions.
“Transactions”
means
(a) the
execution and delivery by each Loan Party of the Loan Documents to which it
is
to be a party, the creation of the Liens pursuant to the Security Documents,
the
borrowing of Loans on the Effective Date, the use of the proceeds thereof and
the issuance of Letters of Credit on the Effective Date, (b) the consummation
of
the Merger as contemplated by the Merger Agreement, (c) the execution and
delivery by the Borrower and each of its Subsidiaries party thereto of the
Restated Credit Agreement and the borrowing of loans thereunder on the Effective
Date and the use of the proceeds thereof, the issuance of letters of credit
thereunder on the Effective Date, and the creation of the Liens pursuant to
the
Security Documents thereunder, (d) the execution and delivery by FCX of the
Senior Notes Documents, the issuance of the Senior Notes and the use of proceeds
thereof, (e) the provision of Ratable Guarantees and the Ratable Liens on the
Effective Date, (f) the repayment in full of all obligations under the PD Credit
Agreement, the termination of all commitments thereunder and the release of
all
Guarantees and liens in respect thereof and (g) the payment of the Transaction
Costs.
“Transferred
Shares”
has
the meaning
set forth in the definition of “Qualifying PTFI Sale Transaction”.
“Type”,
when used in
reference to any Loan or Borrowing, refers to whether the rate of interest
on
such Loan, or on the Loans comprising such Borrowing, is determined by reference
to the LIBO Rate or the Alternate Base Rate.
“Unrestricted
Subsidiary”
means
(i) any Subsidiary designated as an Unrestricted Subsidiary by FCX in
accordance with Section 6.13 after the date of this Agreement,
(ii) any Subsidiary of any Unrestricted Subsidiary, and (iii) any
surviving corporation (other than PTFI, FCX, PD or a Restricted Subsidiary)
into
which any of such corporations referred to in clause (i) or (ii) is
merged or consolidated, subject to Section 6.03. As of the Effective Date,
no Subsidiary is an Unrestricted Subsidiary.
“Unrestricted
Subsidiary Investment Amount”
means
at any time
(a) the aggregate cumulative amount of Investments made in Unrestricted
Subsidiaries on or after the Effective Date under Section 6.04; plus
(b) the
Unrestricted Subsidiary LC Exposure; plus
(c) the aggregate
cumulative amount of the existing Investments in Unrestricted Subsidiaries
at
the time of the Designations under Section 6.13(a); minus
(d) the aggregate
cumulative return of Investment in Unrestricted Subsidiaries deemed to have
occurred upon RS Designations as determined under Section 6.13(b), the Net
Proceeds received by FCX and the Restricted Subsidiaries in respect of
dispositions of Investments in Unrestricted Subsidiaries and the aggregate
amount of dividends and other distributions received by FCX and the Restricted
Subsidiaries from Unrestricted Subsidiaries. For purposes of determining the
Unrestricted Subsidiary Investment Amount at any time, any completion Guarantee
by FCX or any Restricted Subsidiary of any Project Financing of any Unrestricted
Subsidiary shall be deemed to be an Investment in such Unrestricted Subsidiary
in an amount at any time equal to the lesser of (1) the maximum stated amount
of
the claim that may be made under such Guarantee, if any, and (2) the aggregate
outstanding principal amount of such Project Financing at such
time.
“Unrestricted
Subsidiary LC Exposure”
means,
at any
time, the sum of (a) the aggregate undrawn amount of all outstanding Letters
of
Credit and “Letters of Credit”
under
the Restated
Credit Agreement issued for the account of Unrestricted Subsidiaries at such
time plus (b) the aggregate amount of all LC Disbursements and “LC
Disbursements” under the Restated Credit Agreement relating to such Letters of
Credit and “Letters of Credit” that have not yet been reimbursed by or on behalf
of the Borrower or PTFI at such time.
“US
Receivables
Facility”
means
a
Receivables Facility in respect of accounts, payment intangibles and related
assets or interests therein initially owned by, or generated pursuant to the
operations of, any Guarantor that is not a Foreign Subsidiary.
“Wholly
Owned
Subsidiary”
means
a
subsidiary of FCX of which securities or other ownership interests (except
for
directors’ qualifying shares and other de minimis amounts of outstanding
securities or ownership interests) representing 100% of the ordinary voting
power and 100% of equity or 100% of the general partnership interests are,
at
the time any determination is being made, owned, Controlled or held by FCX
or
one or more Wholly Owned Subsidiaries of FCX, or by FCX and one or more Wholly
Owned Subsidiaries of FCX.
“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.
“World
Bank
Guidelines”
means
the World
Bank Pollution Prevention and Abatement Handbook Guidelines, summarized and
attached in Annex A to the ERM Report.
SECTION
1.02.
Classification
of Loans and Borrowings.
For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
“Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type
(e.g., a “Eurodollar Revolving Loan”). Borrowings also may be classified and
referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a
“Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving
Borrowing”). Commitments also may be classified and referred to by Class (e.g.,
a “Revolving Commitment”).
SECTION
1.03.
Terms
Generally.
The definitions of
terms herein shall apply equally to the singular and plural forms of the terms
defined. 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”. The word “will” shall be construed to have the same meaning and
effect as the word “shall”. Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, amended and restated, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference to any law shall include
all statutory and regulatory provisions consolidating, amending, replacing
or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time and to any successor law or regulation, (c)
any
reference herein to any Person shall be construed to include such Person’s
successors and assigns, (d) the words “herein”, “hereof” and “hereunder”, and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (e) all references herein
to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement and
(f)
the words “asset” and “property” shall
be
construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION
1.04.
Accounting
Terms; GAAP.
Except as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; provided
that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof (other than Section 5.01(a) or 5.01(b)) to
eliminate the effect of any change occurring after the date hereof in GAAP
or in
the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request
an
amendment to any provision hereof (other than Section 5.01(a) or 5.01(b)) for
such purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall
be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith; provided further
that if at any
time of delivery of financial statements under Section 5.01(a) or 5.01(b) GAAP
as applied under the other provisions hereof shall as a result of the operation
of this Section 1.04 be different from that used in such financial statements,
FCX shall deliver together with such financial statements a reconciliation
in
reasonable detail of such financial statements to such different
GAAP.
ARTICLE
II
The
Credits
SECTION
2.01.
Commitments.
Subject to the
terms and conditions set forth herein, each Lender agrees (a) to make a Tranche
A Term Loan to the Borrower on the Effective Date in a principal amount not
exceeding its Tranche A Commitment, (b) to make a Tranche B Term Loan to the
Borrower on the Effective Date in a principal amount not exceeding its Tranche
B
Commitment and (c) to make Revolving Loans to the Borrower from time to time
during the Revolving Availability Period in an aggregate principal amount that
will not result in such Lender’s Revolving Exposure exceeding such Lender’s
Revolving Commitment. Within the foregoing limits and subject to the terms
and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans. Amounts repaid or prepaid in respect of Term Loans may not
be
reborrowed.
SECTION
2.02.
Loans
and
Borrowings. (a)
Each
Loan (other
than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans
of the same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender
of
its obligations hereunder, provided
that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender’s failure to make Loans as required.
(b)
Subject
to
Section 2.13, each Revolving Borrowing and Term Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith, provided
that all
Borrowings made on the Effective Date must be made as ABR Borrowings unless
the
Borrower shall have provided an indemnity satisfactory to the Administrative
Agent extending the benefits of Section 2.15 to Lenders in respect of such
Borrowings. Each Swingline Loan shall be an
ABR
Loan. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan, provided
that any exercise
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement.
(c)
At
the commencement
of each Interest Period for any Eurodollar Borrowing, such Borrowing shall
be in
an aggregate amount that is an integral multiple of $1,000,000 and not less
than
$5,000,000. At the time that each ABR Borrowing is made, such Borrowing shall
be
in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $5,000,000. Each Swingline Loan shall be in an amount that is an integral
multiple of $1,000,000 and not less than $1,000,000. Borrowings of more than
one
Type and Class may be outstanding at the same time, provided
that there shall
not at any time be more than a total of 25 Eurodollar Borrowings outstanding.
Notwithstanding anything to the contrary herein, an ABR Revolving Borrowing
or a
Swingline Loan may be in an aggregate amount that is equal to the entire unused
balance of the aggregate Revolving Commitments or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section
2.05(e).
(d)
Notwithstanding
any
other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Maturity
Date, the Tranche A Maturity Date or the Tranche B Maturity Date, as the case
may be.
SECTION
2.03.
Requests
for
Borrowings.
To request a
Revolving Borrowing or Term Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 1:00 p.m., New York City time,
three Business Days before the date of the proposed Borrowing or (b) in the
case of an ABR Borrowing, including to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e), not later than
12:00 noon, New York City time, on the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy (or by electronic transmission with
telephonic confirmation of receipt thereof) to the Administrative Agent of
a
written Borrowing Request in a form approved by the Administrative Agent and
signed by the Borrower. Each such telephonic and written Borrowing Request
shall
specify the following information in compliance with
Section 2.02:
(i) whether
the
requested Borrowing is to be a Revolving Borrowing, Tranche A Term Borrowing
or
Tranche B Term Borrowing;
(ii) the
aggregate
amount of such Borrowing;
(iii) the
date of such
Borrowing, which shall be a Business Day;
(iv) whether
such
Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(v) in
the case of a
Eurodollar Borrowing, the initial Interest Period to be applicable thereto,
which shall be a period contemplated by the definition of the term “Interest
Period”; and
(vi) the
location and
number of the Borrower’s account to which funds are to be disbursed, which shall
comply with the requirements of Section 2.04.
If
no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month’s duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of
the
amount of such Lender’s Loan to be made as part of the requested
Borrowing.
SECTION
2.04.
Funding
of
Borrowings. (a)
Each
Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 1:00 p.m., New York City time, to
the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders, provided
that Swingline
Loans shall be made as provided in Section 2.19. The Administrative Agent will
make such funds transferred to it available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by
the
Borrower in the applicable Borrowing Request; provided
that ABR Loans
made to finance the reimbursement of an LC Disbursement as provided in Section
2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
Section 2.05(e) to reimburse such Issuing Bank, then to such Lenders and such
Issuing Bank as their interests may appear.
(b)
Unless
the
Administrative Agent shall have received notice from a Lender prior to the
proposed time of any Borrowing that such Lender will not make available to
the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available at such time
in
accordance with paragraph (a) of this Section and may, in reliance upon
such assumption and in its sole discretion, make available to the Borrower
a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon,
for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent,
at
(i) in the case of such Lender, the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing.
SECTION
2.05.
Letters
of
Credit. (a)
General.
(i) Subject to the
terms and conditions set forth herein, the Borrower may request the issuance
of
Letters of Credit (A) for its own account, (B) for the account of any Restricted
Subsidiary and (C) subject to Section 6.04 and to the last sentence of this
paragraph, for the account of Unrestricted Subsidiaries, in any case in a form
reasonably acceptable to the Administrative Agent and the applicable Issuing
Bank, at any time and from time to time during the Revolving Availability
Period. The issuance of any Letter of Credit for the account of an Unrestricted
Subsidiary shall be deemed to constitute an Investment in an Unrestricted
Subsidiary pursuant to Section 6.04 in the stated amount of such Letter of
Credit.
(ii)
On the
Effective Date, each Issuing Bank that has issued an Existing Letter of Credit
shall be deemed, without further action by any party hereto, to have granted
to
each Revolving Lender and each Revolving Lender shall be deemed to have
purchased
from such
Issuing Bank a participation in such Existing Letter of Credit in accordance
with paragraph (d) below. The applicable Issuing Banks and the Lenders that
are
also party to the PD Credit Agreement and the Existing Credit Agreement agree
that concurrently with such grant, the participations in the Existing Letters
of
Credit granted to such lenders under the PD Credit Agreement or the Existing
Credit Agreement, as applicable, shall be automatically canceled without further
action by any of the parties thereto. On and after the Effective Date, each
Existing Letter of Credit shall constitute a Letter of Credit for all purposes
hereof. Any Lender that issued an Existing Letter of Credit but shall not have
entered into an Issuing Bank Agreement shall have the rights of an Issuing
Bank
as to such Letter of Credit for purposes of this Section 2.05.
(iii)
The Borrower
may at any time redesignate Letters of Credit as Letters of Credit under the
Restated Credit Agreement (“RA
Letters of
Credit”);
provided
that (A) the
Borrower shall by notice to the Administrative Agent identify the Letters of
Credit to be redesignated hereunder and certify that the conditions to such
redesignation set forth in the following clause (B) are satisfied and that
no
Default shall have occurred and be continuing; and (B) no redesignation of
a
Letter of Credit shall become effective hereunder unless after giving effect
to
such redesignation the conditions precedent to the issuance, amendment, renewal
or extension of an RA Letter of Credit under the Restated Credit Agreement
shall
be satisfied (or waived in accordance with Section 9.02 of the Restated Credit
Agreement). If at any time the total Commitments (as defined in the Restated
Credit Agreement) exceed the total Exposures (as defined in the Restated Credit
Agreement), and, after giving effect to any prepayment required to be made
under
Section 2.10(b) of this Agreement within three Business Days of the origin
of
such excess, such excess shall not be reduced to zero, the Borrower hereby
irrevocably directs the Administrative Agent to identify such Letter of Credit
or Letters of Credit as will result in such excess being reduced to the smallest
amount possible and redesignating each as an RA Letter of Credit; provided
that no
redesignation of a Letter of Credit shall become effective under this sentence
unless after giving effect to such redesignation the conditions precedent to
the
issuance, amendment, renewal or extension of an RA Letter of Credit under the
Restated Credit Agreement shall be satisfied. The Lenders hereby agree that
upon
the effectiveness of any redesignation of a Letter of Credit as an RA Letter
of
Credit, the Issuing Bank that issued such Letter of Credit shall be deemed,
without further action by any party hereto, to have released the participation
by each Revolving Lender in such Letter of Credit and on and after the
effectiveness of any such redesignation, such Letter of Credit shall for all
purposes hereof be treated in the same way as a Letter of Credit that has
expired or been canceled.
(b)
Notice
of
Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the
issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy
(or
transmit by electronic communication, if arrangements for doing so have been
approved by the applicable Issuing Bank) to the applicable Issuing Bank and
the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter
of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment,
renewal
or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by an Issuing Bank,
the Borrower also shall submit a letter of credit application on such Issuing
Bank’s standard form in connection with any request to it for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only
if
(and upon issuance, amendment, renewal or extension of each Letter of Credit
the
Borrower shall be deemed to represent and warrant that), after giving effect
to
such issuance, amendment, renewal or extension (i) the LC Exposure shall
not, taken together with the “LC Exposure” under the Restated Credit Agreement,
exceed $1,000,000,000, (ii) the Unrestricted Subsidiary LC Exposure shall
not exceed $150,000,000 and (iii) the total Revolving Exposures shall not
exceed the total Revolving Commitments. The Borrower shall certify at the time
of each such request in respect of a Letter of Credit for the account of an
Unrestricted Subsidiary that an Investment in such Unrestricted Subsidiary
would
be permitted at such time in the amount of such Letter of Credit under Section
6.04.
(c)
Expiration
Date.
Each Letter of
Credit shall expire at or prior to the close of business on the earlier of
(i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after
such
renewal or extension) and (ii) the date that is five Business Days prior to
the Revolving Maturity Date; provided,
however,
that a Letter of
Credit may, upon the request of the Borrower, include a provision whereby such
Letter of Credit shall be renewed automatically for additional consecutive
periods of one year or less (but not beyond the date that is five Business
Days
prior to the Revolving Maturity Date) unless the applicable Issuing Bank
notifies the beneficiary thereof at least 30 days prior to the then-applicable
expiration date that such Letter of Credit will not be renewed.
(d)
Participations.
By the issuance of
a Letter of Credit (or an amendment to a Letter of Credit increasing the amount
thereof) and without any further action on the part of the applicable Issuing
Bank or the Lenders, the applicable Issuing Bank hereby grants to each Revolving
Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letter
of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of such Issuing Bank, such Lender’s Applicable Percentage
of each LC Disbursement made by such Issuing Bank and not reimbursed by the
Borrower on the date due as provided in paragraph (e) of this Section, or of
any
reimbursement payment required to be refunded to the Borrower for any reason.
Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e)
Reimbursement.
If an Issuing Bank
shall make any LC Disbursement in respect of a Letter of Credit, the Borrower
shall reimburse such LC Disbursement by paying to the Administrative Agent
an
amount equal to such LC Disbursement not later than 2:00 p.m., New York City
time, on the date that such LC Disbursement is made, if the Borrower shall
have
received notice of such LC Disbursement prior to 10:00 a.m., New York City
time,
on such date, or, if such notice has not been received by the Borrower prior
to
such time on such date, then not later than (i) 2:00 p.m., New York City time,
on the Business Day that the Borrower receives such notice, if such notice
is
received prior to 10:00 a.m., New York City time on the day of receipt, or
(ii)
12:00 noon, New York City time, on the Business Day immediately following the
day that the Borrower receives such notice, if such notice is not received
prior
to 10:00 a.m., New York City time, on the day of receipt; provided
that the Borrower
may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 or 2.19 that such payment be financed with a
Borrowing in an equivalent amount and, to the
extent
so financed,
the Borrower’s obligation to make such payment shall be discharged and replaced
by the resulting Borrowing. If the Borrower fails to make such a payment when
due, the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender’s Applicable Percentage thereof. Promptly following
receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower,
in
the same manner as provided in Section 2.04 with respect to Loans made by
such Lender (and Section 2.04 shall apply, mutatis mutandis,
to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the applicable Issuing Bank the amounts so received by it from
the Revolving Lenders. Promptly following receipt by the Administrative Agent
of
any payment from the Borrower pursuant to this paragraph, the Administrative
Agent shall distribute such payment to the applicable Issuing Bank or, to the
extent that the Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as
their
interests may appear. Any payment made by a Lender pursuant to this paragraph
to
reimburse an Issuing Bank for any LC Disbursement (other than the funding of
Revolving Loans or a Swingline Loan as contemplated above) shall not constitute
a Loan and shall not relieve the Borrower of its obligation to reimburse such
LC
Disbursement.
(f)
Obligations
Absolute.
The Borrower’s
obligation to reimburse LC Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any
and
all circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter
of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment
by an
Issuing Bank under a Letter of Credit against presentation of a draft or other
document that does not comply with the terms of such Letter of Credit, or (iv)
any other event or circumstance whatsoever, whether or not similar to any of
the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, the
Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders
nor the Issuing Banks, nor any of their Related Parties, shall have any
liability or responsibility by reason of or in connection with the issuance
or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under
or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the applicable Issuing
Bank; provided
that the foregoing
shall not be construed to excuse an Issuing Bank from liability to the Borrower
to the extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by the Borrower to the extent permitted
by
applicable law) suffered by the Borrower that are caused by such Issuing Bank’s
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or wilful
misconduct on the part of an Issuing Bank (as finally determined by a court
of
competent jurisdiction), such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, an Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility
for
further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are
not
in strict compliance with the terms of such Letter of Credit.
(g)
Disbursement
Procedures.
Each Issuing Bank
shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit and shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank has made
or
will make an LC Disbursement thereunder; provided
that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse such Issuing Bank and the Revolving Lenders with respect
to any such LC Disbursement.
(h)
Interim
Interest.
If an Issuing Bank
shall make any LC Disbursement, then, unless the Borrower shall reimburse such
LC Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR
Loans; provided
that, if the
Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.12(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
applicable Issuing Bank, except that interest accrued on and after the date
of
payment by any Lender pursuant to paragraph (e) of this Section to reimburse
such Issuing Bank shall be for the account of such Revolving Lender to the
extent of such payment.
(i)
Replacement
of
an Issuing Bank.
An Issuing Bank
may be replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.
The Administrative Agent shall notify the Lenders of any such replacement of
an
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.11(b). From and after the effective date
of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of an Issuing Bank under this Agreement with respect to Letters
of Credit to be issued by it thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder,
the
replaced Issuing Bank shall remain a party hereto and shall continue to have
all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not
be
required to issue additional Letters of Credit.
(j)
Cash
Collateralization.
If any Event of
Default shall occur and be continuing or if the Borrower is required to provide
cash collateral pursuant to Section 2.10(b) or if the Borrower gives
written notice to the Administrative Agent that it elects to provide cash
collateral for purposes of Section 6.14 and 6.15, on the Business Day on which
the Borrower receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Revolving
Lenders with LC Exposure representing greater than 50% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this paragraph, or on
the
date the Borrower provides notice of such election, as applicable, the Borrower
shall deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash
equal
to the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided
that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become
immediately
due and
payable, without demand or other notice of any kind, (i) upon the occurrence
of
any Event of Default with respect to the Borrower described in clause (g)
or (h) of Article VII or (ii) upon the occurrence of the circumstances
described in Section 2.10(b). Each such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement, and the Borrower hereby grants
the Lenders a security interest in all funds and investments in such account
to
secure such obligations. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower’s risk and expense, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Banks for LC Disbursements for
which they have not been reimbursed and, to the extent not so applied, shall
be
held for the satisfaction of the reimbursement obligations of the Borrower
for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default or elects to provide such collateral for
purposes of Section 6.14 and 6.15, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower (i) in the case of any Event of
Default, within three Business Days after all Events of Default have been cured
or waived, or (ii) in the case of any such election, after the delivery of
financial statements showing compliance with the financial ratio requirements
set forth in Sections 6.14 and 6.15 or after receipt of written consent to
such
release from the Required Revolving Lenders.
(k)
Issuing
Bank
Agreements.
Unless otherwise
requested by the Administrative Agent, each Issuing Bank shall report in writing
to the Administrative Agent (i) on the first Business Day of each week, the
daily activity (set forth by day) in respect of Letters of Credit during the
immediately preceding week, including all issuances, extensions, amendments
and
renewals, all expirations and cancelations and all disbursements and
reimbursements, (ii) on or prior to each Business Day on which such Issuing
Bank
expects to issue, amend, renew or extend any Letter of Credit, the date of
such
issuance, amendment, renewal or extension, and the aggregate face amount of
the
Letters of Credit to be issued, amended, renewed or extended by it and
outstanding after giving effect to such issuance, amendment, renewal or
extension occurred (and whether the amount thereof changed), it being understood
that such Issuing Bank shall not permit any issuance, renewal, extension or
amendment resulting in an increase in the amount of any Letter of Credit to
occur without first obtaining written confirmation from the Administrative
Agent
that it is then permitted under this Agreement, (iii) on each Business Day
on
which such Issuing Bank makes any LC Disbursement, the date of such LC
Disbursement and the amount of such LC Disbursement, (iv) on any Business Day
on
which the Borrower fails to reimburse an LC Disbursement required to be
reimbursed to such Issuing Bank on such day, the date of such failure and the
amount of such LC Disbursement and (v) on any other Business Day, such other
information as the Administrative Agent shall reasonably request.
SECTION
2.06.
Interest
Elections. (a)
Each
Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
or
deemed by Section 2.03, and, in the case of a Eurodollar Borrowing, shall have
an initial Interest Period as specified in such Borrowing Request or deemed
by
Section 2.03. Thereafter, the Borrower may elect to convert such Borrowing
to a
different Type or to continue such Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods
therefor,
all as
provided in this Section. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings, which
may not be converted or continued.
(b)
To
make an election
pursuant to this Section, the Borrower shall notify the Administrative Agent
of
such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Revolving
Borrowing of the Type resulting from such election to be made on the effective
date of such election. Each such telephonic Interest Election Request shall
be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the Borrower.
(c)
Each
telephonic and
written Interest Election Request shall specify the following information in
compliance with Section 2.02 (including with respect to minimum amounts and
borrowing multiples relating to any resulting Borrowing):
(i) the
Borrowing to
which such Interest Election Request applies and, if different options are
being
elected with respect to different portions thereof, the portions thereof to
be
allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing);
(ii) the
effective date
of the election made pursuant to such Interest Election Request, which shall
be
a Business Day;
(iii) whether
the
resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
and
(iv) if
the resulting
Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable
thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.
If
any such Interest Election Request requests a Eurodollar Borrowing but does
not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration.
(d)
Promptly
following
receipt of an Interest Election Request with respect to a Borrowing, the
Administrative Agent shall advise each Lender of the details thereof and of
such
Lender’s portion of each resulting Borrowing.
(e)
If
the Borrower
fails to deliver a timely Interest Election Request with respect to a Eurodollar
Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding
any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders,
so notifies the Borrower, then, so long as an Event of Default is continuing
(i) no outstanding Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing
shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.
SECTION
2.07.
Termination
and
Reduction of Commitments. (a)
Unless
previously
terminated, (i) the Tranche A Commitments and Tranche B Commitments shall
terminate at 5:00 p.m., New York City time, on the Effective Date and (ii)
the
Revolving Commitments shall terminate on the Revolving Maturity
Date.
(b)
FCX
may at any time
terminate, or from time to time reduce, the Commitments of any Class;
provided
that (i) each
reduction of the Commitments of any Class shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) FCX
shall not terminate or reduce the Revolving Commitments if, after giving effect
to any concurrent prepayment of Loans and provision of cash collateral, in
each
case in accordance with Section 2.10(b), the aggregate Revolving Exposures
(excluding the LC Exposure with respect to which cash collateral has been
provided in accordance with Section 2.10(b)) would exceed the total Revolving
Commitments.
(c)
FCX
shall notify
the Administrative Agent of any election to terminate or reduce the Commitments
under paragraph (b) of this Section, at least three Business Days prior to
the effective date of such termination or reduction, specifying such election
or
reduction and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by FCX pursuant to this Section shall be
irrevocable; provided
that a notice of
termination of the Revolving Commitments delivered by FCX may state that such
notice is conditioned upon the effectiveness of other financings or of asset
dispositions, in which case such notice may be revoked by FCX (by notice to
the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with the amounts of their
Commitments of such Class.
SECTION
2.08.
Repayment of
Loans; Evidence of Debt. (a)
The
Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Revolving Loan of such
Lender on the Revolving Maturity Date, (ii) to the Administrative Agent for
the
account of each Lender the then unpaid principal amount of each Term Loan of
such Lender as provided in Section 2.09 and (iii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the earlier of the
Revolving Maturity Date and the first date after such Swingline Loan is made
that is the 15th or last day of a calendar month and is at least two Business
Days after such Swingline Loan is made, provided
that on each date
that a Revolving Borrowing is made, the Borrower shall repay all Swingline
Loans
that were outstanding on the date such Borrowing was requested.
(b)
Each
Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made
by
such Lender, including the amounts of principal and interest payable and paid
to
such Lender from time to time hereunder.
(c)
The
Administrative
Agent shall maintain accounts in which it shall record (i) the amount of
each Loan made hereunder, the Type and Class thereof 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 Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share
thereof.
(d)
The
entries made in
the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie
evidence of the
existence and amounts of the obligations recorded therein; provided
that the failure
of any Lender or the Administrative Agent to maintain such accounts or any
error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e)
Any
Lender may
request that Loans of any Class made by it be evidenced by a promissory note.
In
such event, the Borrower shall prepare, execute and deliver to such Lender
a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by
the
Administrative Agent. Thereafter, the Loans evidenced by such promissory note
and interest thereon shall at all times (including after assignment pursuant
to
Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note
is
a registered note, to such payee and its registered assigns).
SECTION
2.09.
Amortization
of
Term Loans. (a)
Subject
to
adjustment pursuant to paragraph (d) of this Section, the Borrower shall repay
Tranche A Term Borrowings on each date set forth below in the aggregate
principal amount set forth opposite such date:
|
Date
|
Principal
Amount
|
||
|
September
30,
2007
|
$125,000,000
|
||
|
March
31,
2008
|
$125,000,000
|
||
|
September
30,
2008
|
$125,000,000
|
||
|
March
31,
2009
|
$125,000,000
|
||
|
September
30,
2009
|
$125,000,000
|
||
|
March
31,
2010
|
$125,000,000
|
||
|
September
30,
2010
|
$125,000,000
|
||
|
March
31,
2011
|
$125,000,000
|
||
|
September
30,
2011
|
$125,000,000
|
||
|
Tranche
A
Maturity Date
|
$1,375,000,000
|
(b)
Subject
to
adjustment pursuant to paragraph (d) of this Section, the Borrower shall repay
Tranche B Term Borrowings on each date set forth below in the aggregate
principal amount set forth opposite such date:
|
Date
|
Principal
Amount
|
||
|
June
30,
2007
|
$18,750,000
|
||
|
September
30,
2007
|
$18,750,000
|
||
|
December
31,
2007
|
$18,750,000
|
||
|
March
31,
2008
|
$18,750,000
|
||
|
June
30,
2008
|
$18,750,000
|
||
|
September
30,
2008
|
$18,750,000
|
||
|
December
31,
2008
|
$18,750,000
|
||
|
March
31,
2009
|
$18,750,000
|
||
|
June
30,
2009
|
$18,750,000
|
||
|
September
30,
2009
|
$18,750,000
|
||
|
December 31,
2009
|
$18,750,000
|
||
|
March 31,
2010
|
$18,750,000
|
||
|
June 30,
2010
|
$18,750,000
|
||
|
September 30,
2010
|
$18,750,000
|
|
December 31,
2010
|
$18,750,000
|
||
|
March 31,
2011
|
$18,750,000
|
||
|
June 30,
2011
|
$18,750,000
|
||
|
September 30,
2011
|
$18,750,000
|
||
|
December 31,
2011
|
$18,750,000
|
||
|
March 31,
2012
|
$18,750,000
|
||
|
June 30,
2012
|
$18,750,000
|
||
|
September 30,
2012
|
$18,750,000
|
||
|
December 31,
2012
|
$18,750,000
|
||
|
March 31,
2013
|
$18,750,000
|
||
|
June 30,
2013
|
$18,750,000
|
||
|
September 30,
2013
|
$18,750,000
|
||
|
December 31,
2013
|
$18,750,000
|
||
|
Tranche
B
Maturity Date
|
$6,993,750,000
|
(c)
To
the extent not
previously paid, (i) all Tranche A Term Loans shall be due and payable on the
Tranche A Maturity Date and (ii) all Tranche B Term Loans shall be due and
payable on the Tranche B Maturity Date.
(d)
Any
prepayment of a
Term Borrowing of either Class shall be applied to reduce the subsequent
scheduled repayments of the Term Borrowings of such Class to be made pursuant
to
this Section in direct order. If the initial aggregate amount of the Lenders’
Term Commitments of either Class exceeds the aggregate principal amount of
Term
Loans of such Class that are made on the Effective Date, then the scheduled
repayments of Term Borrowings of such Class to be made pursuant to this Section
shall be reduced ratably by an aggregate amount equal to such
excess.
(e)
Prior
to any
repayment of any Term Borrowings of either Class hereunder, the Borrower shall
select the Borrowing or Borrowings of the applicable Class to be repaid and
shall notify the Administrative Agent by telephone (confirmed by telecopy)
of
such election not later than 12:00 noon, New York City time, three Business
Days
before the scheduled date of such repayment. Each repayment of a Borrowing
shall
be applied ratably to the Loans included in the repaid Borrowing. Repayments
of
Term Borrowings shall be accompanied by accrued interest on the amount
repaid.
SECTION
2.10.
Prepayment
of
Loans. (a)
The
Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, without premium or penalty, subject to the requirements of
this Section and to the making of any payment required under Section
2.15.
(b)
In
the event and on
each occasion on or prior to the Revolving Maturity Date that the sum of the
Revolving Exposures exceeds the total Revolving Commitments, the Borrower shall
prepay Revolving Borrowings in an aggregate amount equal to such excess;
provided
that if no
Revolving Borrowings are outstanding and the LC Exposure exceeds the total
Revolving Commitments, the Borrower shall provide cash collateral in an
aggregate amount equal to such excess in accordance with Section 2.05(j). In
addition, at any time that Revolving Borrowings are outstanding and the total
Revolving Commitments (as defined in the Restated Credit Agreement) exceed
the
total Revolving Exposures (as defined in the Restated Credit Agreement) by
the
minimum borrowing amount thereunder or more, the Borrower shall at the end
of
the next Interest Period for any Revolving Borrowing, prepay such Revolving
Borrowing (or, if less, a portion of such Borrowing equal to the unused
Commitments (as defined in the Restated Credit Agreement) at the time of such
prepayment.
(c)
In
the event and on
each occasion that any Net Proceeds are received by or on behalf of the Borrower
or any Restricted Subsidiary in respect of any Prepayment Event, the Borrower
shall, on the day such Net Proceeds are received (or, (x) in the case of a
Prepayment Event described in clause (a) of the definition of the term
“Prepayment Event”, within three Business Days after such Net Proceeds are
received or (y) in the case of a Prepayment Event described in clause (b) of
the
definition of “Prepayment Event”, within 15 Business Days after such Net
Proceeds are received), prepay Term Borrowings in an aggregate amount equal
to
(i) in the case of a Prepayment Event described in clause (c) of the definition
of the term “Prepayment Event”, (A) to the extent that Total Debt, prior to
giving effect to such prepayment, exceeds $12,500,000,000, 50% until such Total
Debt is reduced to $12,500,000,000, (B) to the extent that Total Debt, prior
to
giving effect to such prepayment but after giving effect to any prepayment
pursuant to clause (A) above, exceeds $7,500,000,000 but is less than or equal
to $12,500,000,000, 25% until such Total Debt is reduced to $7,500,000,000
and
(C) if Total Debt, after giving effect to any prepayment required under clause
(A) or (B) above is less than or equal to $7,500,000,000, 0% of the amount
of
such Net Proceeds, (ii) in the case of any Prepayment Event under clause (e)
of
the definition of the term “Prepayment Event”, 50% of the amount of such Net
Proceeds, and (iii) in the case of all other Prepayment Events, 100% of the
amount of such Net Proceeds, provided
that, in the case
of any event described in clause (a) or (b) of the definition of the term
“Prepayment Event”, if the Borrower and the Restricted Subsidiaries apply the
Net Proceeds from such event (or a portion thereof) within 365 days (or, if
later, within 180 days after the Borrower or a Restricted Subsidiary has, prior
to the expiration of such 365-day period, entered into a binding commitment
to
so reinvest such Net Proceeds) after receipt of such Net Proceeds and at a
time
when no Event of Default has occurred and is continuing, to acquire real
property, equipment or other tangible assets to be used in the business of
the
Borrower and the Restricted Subsidiaries, provided
that the Borrower
has delivered to the Administrative Agent within (x) in the case of a Prepayment
Event described in clause (a) of the definition of the term “Prepayment Event”
three Business Days or (y) in the case of a Prepayment Event described in clause
(b) of the definition of “Prepayment Event” 15 Business Days after such Net
Proceeds are received a certificate of a Financial Officer stating its intention
to do so and certifying that no Event of Default has occurred and is continuing,
then no prepayment shall be required pursuant to this paragraph in respect
of
the Net Proceeds in respect of such event (or the portion of such Net Proceeds
specified in such certificate, if applicable) except to the extent of any such
Net Proceeds therefrom that have not been so applied by the end of such 365
day
period (or, if later, such 180 day period), at which time a prepayment shall
be
required in an amount equal to such Net Proceeds that have not been so applied.
Notwithstanding any other provision of this Agreement, including the provisions
of this Section 2.10, following an event of default under any indenture
governing any of the Ratable Obligations, if the trustee under the indenture
governing such Ratable Obligations shall have delivered a notice to the
Administrative Agent under the applicable Security Document stating that an
event of default has occurred under such indenture and that the equal and
ratable provisions shall thereafter apply to any disposition of Collateral
equally and ratably securing such Ratable Obligations, then, until such notice
is revoked, any Net Proceeds from the sale or disposition of such Collateral
shall be applied in accordance with the provisions of the applicable Security
Document rather than the provisions of this Agreement. In addition, in the
event
that any prepayment or offer to purchase would otherwise be required to be
made
in respect of any Net Proceeds for the benefit of the holders of the Ratable
FCX
Obligations on a date (the "Prepayment
Date")
prior to
the date any prepayment in respect of such Net Proceeds would
otherwise be required to be made hereunder, (I) such prepayment hereunder shall,
solely with respect to such Net Proceeds, be due on the Prepayment Date and
(II)
the amount of such required prepayment hereunder shall be reduced by the portion
of such prepayment that is required to be paid to such holders
under
the
provisions applicable to such FCX Ratable Obligations (but in no event more
than the amount that would be required to be so applied under the provisions
applicable to such FCX Ratable Obligations on the Effective
Date).
(d)
Following
the end
of each fiscal year of the Borrower, commencing with the fiscal year ending
December 31, 2007, the Borrower shall prepay Term Borrowings in an aggregate
amount equal to the ECF Percentage of Excess Cash Flow for such fiscal year,
provided
that (x) for the
fiscal year ending December 31, 2007, Excess Cash Flow shall be calculated
for
the period from April 1, 2007 through December 31, 2007 and (y) the amount
of
such prepayment shall be reduced by the aggregate amount of prepayments of
Term
Loans made pursuant to Section 2.10(a) during such fiscal year. Each prepayment
pursuant to this paragraph shall be made on or before the date on which
financial statements are delivered pursuant to Section 5.01 with respect to
the
fiscal year for which Excess Cash Flow is being calculated (and in any event
within 95 days after the end of such fiscal year). The “ECF
Percentage”
at
any time shall
mean (a) at any time during a Collateral Shortfall Period, (i) to the extent
that the Total Leverage Ratio, prior to giving effect to such prepayment,
exceeds 3.0 to 1.0, 50%, until the Total Leverage Ratio is reduced to 3.0 to
1.0, (ii) to the extent that the Total Leverage Ratio, prior to such prepayment
but after giving effect to any prepayment pursuant to clause (a)(i) above,
is
less than or equal to 3.0 to 1.0 but exceeds 2.0 to 1.0, 25%, until the Total
Leverage Ratio is reduced to 2.0 to 1.0 and (iii) to the extent that the Total
Leverage Ratio, after giving effect to any prepayments made pursuant to clause
(a)(i) and (a)(ii) above, is less than or equal to 2.0 to 1.0, 0%, or (b) at
any
other time, to the extent that the Total Leverage Ratio, prior to giving effect
to such prepayment, exceeds 4.0 to 1.0, 50%, until such Total Leverage Ratio
is
reduced to 4.0 to 1.0, (ii) to the extent that the Total Leverage Ratio, prior
to such prepayment but after giving effect to any prepayment pursuant to clause
(b)(i) above, is less than or equal to 4.0 to 1.0 but exceeds 3.0 to 1.0, 25%,
until the Total Leverage Ratio is reduced to 3.0 to 1.0 and (iii) to the extent
that the Total Leverage Ratio, after giving effect to any prepayments made
pursuant to clause (b)(i) and (b)(ii) above, is less than or equal to 3.0 to
1.0, 0%.
(e)
Prior
to any
optional or mandatory prepayment of Borrowings hereunder, the Borrower shall
select the Borrowing or Borrowings to be prepaid and shall specify such
selection in the notice of such prepayment pursuant to paragraph (f) of this
Section. In the event of any optional prepayment of Term Borrowings, the
Borrower shall specify the Class or Classes of Term Borrowings to be prepaid
and
the amount of such prepayment to be applied to such Class or Classes, and the
amount of any such prepayment of Term Borrowings of a Class shall be applied
in
direct order of maturity to the remaining amortization payments under Section
2.09 on a pro-rata basis among the Term Lenders of such Class. In the event
of
any mandatory prepayment of Term Borrowings made at a time when Term Borrowings
of more than one Class remain outstanding, the Borrower shall select Term
Borrowings to be prepaid so that the aggregate amount of such prepayment is
allocated between Tranche A Term Borrowings and Tranche B Term Borrowings pro
rata based on the aggregate principal amount of outstanding Borrowings of each
such Class and shall be applied in direct order of maturity to the remaining
amortization payments under Section 2.09, provided
that any Tranche B
Lender may elect, by notice to the Administrative Agent by telephone (confirmed
by telecopy) at least one Business Day prior to the prepayment date if and
to
the extent that any Tranche A Term Loans remain outstanding, to decline all
or
any portion of any prepayment of its Tranche B Term Loans pursuant to this
Section (other than a mandatory prepayment in respect of a Prepayment Event
described in clause (c) of the definition of the term “Prepayment Event”, which
may not be declined), in which case the aggregate amount of the prepayment
that
would have been applied to prepay Tranche B Term Loans but was so declined
shall
be applied to prepay Tranche B Term
Loans
of
non-declining Tranche B Lenders or Tranche A Term Borrowings as directed by
the
Borrower.
(f)
The
Borrower shall
notify the Administrative Agent (and, in the case of prepayment of a Swingline
Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any
prepayment hereunder (i) in the case of prepayment of a Eurodollar
Borrowing, not later than 12:00 noon, New York City time, three Business Days
before the date of prepayment or (ii) in the case of prepayment of an ABR
Borrowing, not later than 12:00 noon, New York City time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof
to
be prepaid; provided
that (A) if a
notice of optional voluntary prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by
Section 2.07(c), then such notice of prepayment may be revoked if such
notice of termination is revoked in accordance with Section 2.07(c), and
(B) a notice of prepayment of the Term Borrowings may state that such notice
is
conditioned upon the effectiveness of other financings or of asset dispositions,
in which case such notice may be revoked by FCX (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Promptly following receipt of any such notice (other than a notice
relating solely to Swingline Loans), the Administrative Agent shall advise
the
Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that would be permitted in the case of an advance of a Borrowing
of the same Type as provided in Section 2.02. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.12.
SECTION
2.11.
Fees. (a)
The
Borrower agrees
to pay to the Administrative Agent for the account of each Lender a commitment
fee, which shall accrue at the Applicable Rate on the daily average unused
amount of the Revolving Commitment of such Lender during the period from and
including the Effective Date to but excluding the date on which the Revolving
Commitments terminate. Accrued commitment fees shall be payable in arrears
on
the last day of March, June, September and December of each year, and on the
date on which the Revolving Commitments terminate, commencing on the first
such
date to occur after the date hereof. All commitment fees shall be computed
on
the basis of a year of 360 days and shall be payable for the actual number
of
days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees, a Revolving Commitment of a Lender shall be deemed
to be used to the extent of the outstanding Loans and LC Exposure of such Lender
(and the Swingline Exposure of such Lender shall be disregarded for such
purpose).
(b)
The
Borrower agrees
to pay (i) to the Administrative Agent for the account of each Revolving
Lender a participation fee with respect to such Lender’s participation in
Letters of Credit, which shall accrue at the same Applicable Rate used to
determine the interest rate applicable to Eurodollar Revolving Loans on the
average daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding
the
later of the
date on which such Lender’s Revolving Commitment terminates and the date on
which such Lender ceases to have any LC Exposure, and (ii) to each Issuing
Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Borrower and such Issuing Bank on the average
daily amount of the LC Exposure attributable to Letters of Credit issued by
such
Issuing Bank (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Revolving Commitments
and
the date on which there ceases to be any LC Exposure, as well as each Issuing
Bank’s standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees accrued through and including the last
day
of March, June, September and December of each year shall be payable on the
third Business Day following such last day, commencing on the first such date
to
occur after the Effective Date; provided
that all such fees
shall be payable on the date on which the Revolving Commitments terminate (and,
if later, the date on which there ceases to be any Revolving Exposure) and
any
such fees accruing after the date on which the Revolving Commitments terminate
shall be payable on demand. Any other fees payable to an Issuing Bank pursuant
to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year
of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c)
The
Borrower agrees
to pay to the Administrative Agent, for its own account, fees payable in the
amounts and at the times separately agreed upon between the Borrower and the
Administrative Agent.
(d)
All
fees payable
hereunder shall be paid on the dates due, in immediately available funds, to
the
Administrative Agent (or to an Issuing Bank, in the case of fees payable to
it)
for distribution, in the case of commitment fees and participation fees, to
the
Lenders. Fees paid shall not be refundable under any circumstances.
SECTION
2.12.
Interest. (a)
The
Loans
comprising each ABR Borrowing (including each Swingline Loan) shall bear
interest at the Alternate Base Rate plus the Applicable Rate and plus, at all
times during a Collateral Shortfall Period, 1.00%.
(b)
The
Loans
comprising each Eurodollar Borrowing shall bear interest at the LIBO Rate for
the Interest Period in effect for such Borrowing plus the Applicable Rate and
plus, at all times during a Collateral Shortfall Period, 1.00%.
(c)
Notwithstanding
the
foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall, on and
after the date the Required Lenders so request, bear interest, after as well
as
before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Revolving Loans as provided
in paragraph (a) of this Section.
(d)
Accrued
interest on
each Loan made to the Borrower shall be payable by the Borrower in arrears
on
each Interest Payment Date for each such Loan and, in the case of Revolving
Loans, upon termination of the Revolving Commitments; provided
that
(i) interest accrued pursuant to paragraph (c) of this Section shall
be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Loan prior to the end
of
the Revolving Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any Eurodollar Loan prior to
the end of the current Interest Period therefor, accrued interest on such Loan
shall be payable on the effective date of such conversion.
(e)
All
interest
hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the
Alternate Base Rate is based on the Prime Rate shall be computed on the basis
of
a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate or LIBO Rate shall
be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION
2.13.
Alternate
Rate
of Interest.
If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the
Administrative
Agent determines (which determination shall be conclusive absent manifest error)
that adequate and reasonable means do not exist for ascertaining the LIBO Rate
for such Interest Period; or
(b) the
Administrative
Agent is advised by the Required Lenders that the LIBO Rate for such Interest
Period will not adequately and fairly reflect the cost to such Lenders of making
or maintaining their Loans included in such Borrowing for such Interest
Period;
then
the
Administrative Agent shall give notice thereof to the Borrower and the Lenders
by telephone or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION
2.14.
Increased
Costs. (a)
If
any Change in
Law shall:
(i) 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
Lender (except any such reserve requirement reflected in Eurodollar Reserve
Requirements) or any Issuing Bank; or
(ii) impose
on any
Lender or any Issuing Bank or the London interbank market any other condition
affecting this Agreement or Eurodollar Loans made by such Lender or any Letter
of Credit or participation therein;
and
the result of
any of the foregoing shall be to increase the cost to such Lender of making
or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any
such Loan) or to increase the cost to such Lender or such Issuing Bank of
participating in, issuing or maintaining any Letter of Credit or to reduce
the
amount of any sum received or receivable by such Lender or such Issuing Bank
hereunder (whether of principal, interest or otherwise), in each case by or
in
an amount which such Lender in its sole judgment deems material in the context
of this Agreement and its Loans or participations in Letters of Credit
hereunder, then the relevant Borrower will pay to such Lender or such Issuing
Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or such Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b)
If
any Lender shall
give notice to the Administrative Agent and the Borrower at any time to the
effect that Eurodollar Reserve Requirements are, or are scheduled to become,
effective and that such Lender is or will be generally subject to
such
Eurodollar
Reserve Requirements as a result of which such Lender will incur additional
costs, then such Lender shall, for each day from the later of the date of such
notice and the date on which such Eurodollar Reserve Requirements become
effective, be entitled to additional interest on each Eurodollar Loan made
by it
at a rate per annum determined for such day (rounded upward, if necessary,
to
the nearest 100th of 1%) equal to the remainder obtained by subtracting
(i) the LIBO Rate for such Eurodollar Loan from (ii) the rate obtained
by dividing such LIBO Rate by a percentage equal to 100% minus the
then-applicable Eurodollar Reserve Requirements. Such additional interest will
be payable in arrears to the Administrative Agent, for the account of such
Lender, on each Interest Payment Date relating to such Eurodollar Loan and
on
any other date when interest is required to be paid hereunder with respect
to
such Loan. Any Lender which gives notice under this paragraph (b) shall promptly
withdraw such notice (by written notice of withdrawal given to the
Administrative Agent and the Borrower) in the event Eurodollar Reserve
Requirements cease to apply to it or the circumstances giving rise to such
notice otherwise cease to exist.
(c)
If
any Lender or
any Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such
Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or
such Issuing Bank’s holding company, if any, as a consequence of this Agreement
or the Loans made by, or participations in Letters of Credit held by, such
Lender or the Letters of Credit issued by such Issuing Bank, to a level below
that which such Lender or such Issuing Bank or such Lender’s or such Issuing
Bank’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s or such Issuing Bank’s policies and the
policies of such Lender’s or such Issuing Bank’s holding company with respect to
capital adequacy), by an amount which such Lender in its sole judgment deems
to
be material in the context of this Agreement and its Loans, Commitments and
participations in Letters of Credit hereunder, then from time to time the
Borrower will pay to such Lender or such Issuing Bank, as the case may be,
such
additional amount or amounts as will compensate such Lender or such Issuing
Bank
or such Lender’s or such Issuing Bank’s holding company for any such reduction
suffered.
(d)
A
certificate of a
Lender or an Issuing Bank setting forth the amount or amounts necessary to
compensate such Lender or such Issuing Bank or its holding company, as the
case
may be, as specified in paragraph (a) or (c) of this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender or such Issuing Bank the amount shown as due
on
any such certificate within 10 days after receipt thereof.
(e)
Failure
or delay on
the part of any Lender or any Issuing Bank to demand compensation pursuant
to
this Section shall not constitute a waiver of such Lender’s or such Issuing
Bank’s right to demand such compensation; provided
that the Borrower
shall not be required to compensate a Lender or an Issuing Bank pursuant to
this
Section for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender or such Issuing Bank, as the case may be,
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender’s or such Issuing Bank’s intention to claim
compensation therefor; provided further
that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.
SECTION
2.15.
Break
Funding
Payments.
In the event of
(a) the payment of any principal of any Eurodollar Loan to the Borrower
other than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default),
(b) the
conversion of any Eurodollar Loan to the Borrower other than on the last day
of
the Interest Period applicable thereto, (c) the failure by the Borrower to
borrow, convert, continue or prepay any Eurodollar Loan on the date specified
in
any notice delivered pursuant hereto (regardless of whether such notice may
be
revoked under Section 2.10(f) and is revoked in accordance therewith), or
(d) the assignment of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.18, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. Such loss, cost or expense to any Lender shall be deemed to include
an
amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such
Loan
had such event not occurred, at the LIBO Rate that would have been applicable
to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits
of a
comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The relevant Borrower
shall pay such Lender the amount shown as due on any such certificate within
10
days after receipt thereof.
SECTION
2.16.
Taxes. (a)
Any
and all
payments by or on account of any obligation of the Borrower or any other Loan
Party hereunder or under any other Loan Document shall be made free and clear
of
and without deduction for any Indemnified Taxes or Other Taxes; provided
that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable
to
additional sums payable under this Section) the Administrative Agent, Lender
or
Issuing Bank (as the case may be) receives 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 Governmental Authority in accordance with applicable
law.
(b)
In
addition, the
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c)
The
Borrower shall
indemnify the Administrative Agent, each Lender and each Issuing Bank, within
10
days after written demand therefor, for the full amount of any Indemnified
Taxes
or Other Taxes paid by the Administrative Agent, such Lender or such Issuing
Bank, as the case may be, on or with respect to any payment by or on account
of
any obligation of the Borrower hereunder or under any other Loan Document
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether
or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed
or
asserted by the relevant Governmental Authority, provided,
however,
that the Borrower
shall not be obligated to make payment to the Administrative Agent or any Lender
or Issuing Bank pursuant to this Section in respect of penalties, interest
and
other liabilities attributable to any Indemnified Taxes or Other Taxes, if
such
penalties, interest and other liabilities are attributable to the gross
negligence or wilful misconduct of the Administrative Agent, Lender or Issuing
Bank. A certificate as to the amount of such payment or liability delivered
to
the Borrower by a
Lender
or an
Issuing Bank, or by the Administrative Agent on its own behalf or on behalf
of a
Lender or an Issuing Bank, shall be conclusive absent manifest
error.
(d)
As
soon as
practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e)
If
the
Administrative Agent, a Lender or an Issuing Bank determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.16, it shall
pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.16 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or such Issuing
Bank and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the
Borrower, upon the request of the Administrative Agent, such Lender or such
Issuing Bank, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or such Issuing Bank in
the
event the Administrative Agent, such Lender or such Issuing Bank is required
to
repay such refund to such Governmental Authority.
(f)
Any
Foreign Lender
that is entitled to an exemption from or reduction of withholding tax under
the
law of the jurisdiction in which the Borrower is located, or any treaty to
which
such jurisdiction is a party, with respect to payments under this Agreement
shall deliver to the Borrower (with a copy to the Administrative Agent), at
the
time or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will permit such payments to be made
without withholding or at a reduced rate, provided
that such Foreign
Lender has received written notice from the Borrower or the Administrative
Agent, as the case may be, advising it of the availability of such exemption
or
reduction and supplying all applicable documentation.
(g)
Nothing
contained
in this Section 2.16 shall require the Administrative Agent, the Collateral
Agent, the Security Agent, any Issuing Bank or any Lender (or permitted assignee
or Participant) to make available any of its income tax returns or any other
information that it deems to be confidential or proprietary.
SECTION
2.17.
Payments
Generally; Pro Rata Treatment; Sharing of Set-offs. (a)
The
Borrower shall
make each payment required to be made by it hereunder or under any other Loan
Document (whether of principal, interest, fees or reimbursements of LC
Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16 or
otherwise) prior to the time expressly required hereunder or under such other
Loan Document for such payment (or, if no such time is expressly required,
prior
to 12:00 noon, New York City time), on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes
of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
except payments to be made directly to an Issuing Bank or
Swingline
Lender as
expressly provided herein and except that payments pursuant to
Sections 2.14 (other than paragraph (b) thereof), 2.15, 2.16 and 9.03
shall be made directly to the Persons entitled thereto and payments pursuant
to
other Loan Documents shall be made to the Persons specified therein. The
Administrative Agent shall distribute any such payments received by it for
the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
under each Loan Document shall be made in dollars.
(b)
If
at any time
insufficient funds are received by and available to the Administrative Agent
to
pay fully all amounts of principal, unreimbursed LC Disbursements, interest
and
fees then due hereunder, such funds shall be applied (i) first, towards
payment of interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due
to
such parties, and (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed
LC
Disbursements then due to such parties.
(c)
If
any Lender
shall, by exercising any right of set-off or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of its Revolving
Loans, Term Loans or participations in LC Disbursements or Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans, Term Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Revolving Loans,
Term Loans and participations in LC Disbursements and Swingline Loans;
provided
that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than
to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect
to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d)
Unless
the
Administrative Agent shall have received notice from the Borrower prior to
the
date on which any payment is due to the Administrative Agent for the account
of
the Lenders or an Issuing Bank hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption and in its sole discretion, distribute to the Lenders or such Issuing
Bank, as the case may be, the amount due. In such event, if the Borrower has
not
in fact made such payment,
then
each of the
Lenders or such Issuing Bank, as the case may be, severally agrees to repay
to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender or such Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e)
If
any Lender shall
fail to make any payment required to be made by it pursuant to
Section 2.04, 2.05(d) or (e), 2.17(d), 2.19(c) or 9.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender’s obligations under
such Sections until all such unsatisfied obligations are fully
paid.
SECTION
2.18.
Mitigation
Obligations; Replacement of Lenders. (a)
If
any Lender
requests compensation under Section 2.14 (other than paragraph (b)
thereof), or if the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.16, then such Lender shall use reasonable efforts to designate
a different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.14 (other than paragraph (b) thereof) or 2.16, as the case may
be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or
assignment.
(b)
If
any Lender
requests compensation under Section 2.14 (other than paragraph (b)
thereof), or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant
to
Section 2.16, or if any Lender defaults in its obligation to fund Loans
hereunder, or if any Lender has failed to consent to a proposed amendment,
waiver, discharge or termination which pursuant to the terms of Section 9.02
requires the consent of all of the Lenders affected and with respect to which
the Required Lenders shall have granted their consent, then the Borrower may,
at
its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04),
all its interests, rights and obligations under this Agreement to an assignee
that shall assume such obligations (which assignee may be another Lender, if
a
Lender accepts such assignment); provided
that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Commitment is being assigned, each Principal Issuing
Bank and the Swingline Lender), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans and participations in LC Disbursements
and Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts), (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments
required to be made pursuant to Section 2.16, such assignment will result
in a material reduction in such compensation or payments, and (iv) in the case
of any such assignment resulting from the failure to provide a consent, the
assignee shall have given such consent and the fee required under Section
9.04(b)(ii)(C) shall have been paid by
such
assignee or by
the Borrower. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver, consent or approval
by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION
2.19.
Swingline
Loans. (a)
Subject
to the
terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the Revolving
Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding
Swingline Loans exceeding $100,000,000 or (ii) the aggregate Revolving Exposures
exceeding the aggregate Revolving Commitments, provided
that the Swingline
Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Within the foregoing limits and subject to the
terms
and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b)
To
request a
Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 2:00 p.m., New
York
City time, on the day of such proposed Swingline Loan. Each such notice shall
be
irrevocable and shall specify the requested date (which shall be a Business
Day)
and amount of the requested Swingline Loan. The Administrative Agent will
promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to
the
Borrower by means of a credit to the general deposit account of the Borrower
maintained with the Swingline Lender (or, in the case of a Swingline Loan made
to finance the reimbursement of an LC Disbursement as provided in Section
2.05(e), by remittance to the applicable Issuing Bank or, to the extent that
the
Revolving Lenders have made payments pursuant to Section 2.05(e) to reimburse
a
Issuing Bank, to such Lenders and such Issuing Bank as their interests may
appear) by 3:00 p.m., New York City time, on the requested date of such
Swingline Loan.
(c)
The
Swingline
Lender may by written notice given to the Administrative Agent not later than
12:00 noon, New York City time, on any Business Day require the Revolving
Lenders to acquire participations on such Business Day in all or a portion
of
the Swingline Loans outstanding. Such notice shall specify the aggregate amount
of Swingline Loans in which Revolving Lenders will participate. Promptly upon
receipt of such notice, the Administrative Agent will give notice thereof to
each Revolving Lender, specifying in such notice such Lender’s Applicable
Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline
Loans. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Lender shall comply with its obligation under this paragraph by wire transfer
of
immediately available funds, in the same manner as provided in Section 2.04
with
respect to Loans made by such Lender (and Section 2.04 shall apply, mutatis mutandis,
to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Revolving Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter (i) each participation
so
acquired in such
Swingline Loan shall be deemed to be a Revolving Loan and (ii) payments in
respect of such Swingline Loan shall be made to the Administrative Agent and
not
to the Swingline Lender. Any amounts received by the Swingline Lender from
the
Borrower (or other party on behalf of the Borrower) in respect of a Swingline
Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear, provided
that any such
payment so remitted shall be repaid to the Swingline Lender or the
Administrative Agent, as the case may be, if and to the extent such payment
is
required to be refunded to the Borrower for any reason. The failure of any
Revolving Lender to purchase any participation in a Swingline Loan pursuant
to
this paragraph shall not relieve the Borrower of any default in the payment
thereof.
ARTICLE
III
Representations
and Warranties
FCX
represents and
warrants to the Lenders on the date hereof, on the Effective Date and on each
other date on which representations and warranties are made or deemed made
hereunder that:
SECTION
3.01.
Organization;
Powers.
The Borrower, each
Loan Party and each of the Borrower’s other Restricted Subsidiaries is duly
organized and validly existing (except to the extent that the failure of such
other Restricted Subsidiaries to be duly organized and validly existing would
not, individually or in the aggregate, be expected to result in a Material
Adverse Effect) and, to the extent applicable, except where the failure to
do
so, individually or in the aggregate, would not reasonably be expected to result
in a Material Adverse Effect in good standing under the laws of the jurisdiction
of its organization, has, except where the failure to do so, individually or
in
the aggregate, would not reasonably be expected to result in a Material Adverse
Effect, all requisite power and authority to carry on its business as now
conducted and to execute, deliver and perform its obligations under each Loan
Document to which it is a party and, except where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result
in
a Material Adverse Effect, is qualified to do business in, and is, to the extent
applicable, in good standing in, every jurisdiction where such qualification
is
required.
SECTION
3.02.
Authorization;
Enforceability.
The performance by
each Loan Party of the Loan Documents to which it is to be party, the Borrowings
and the issuances of Letters of Credit hereunder and the Transactions to be
entered into by each Loan Party are within such Loan Party’s corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by
the
Borrower and constitutes, and each other Loan Document to which any Loan Party
is to be a party, when executed and delivered by such Loan Party, will
constitute, a valid and binding obligation of such Loan Party, enforceable
in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally,
concepts of reasonableness and general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
SECTION
3.03.
Governmental
Approvals; No Conflicts.
Except as set
forth in Schedule 3.03, the performance by each Loan Party of the Loan Documents
to which it is to be party, the Borrowings and the issuances of Letters of
Credit hereunder and the Transactions (a) do not require any consent or
approval of, registration or filing with, or any other action by, any
Governmental Authority, except (i) such as have been obtained or made and are
in
full force and effect, (ii) filings necessary to perfect Liens created under
the
Loan Documents, (iii) certain consents and approvals that may be required in
order to provide certain guarantees or to grant certain Liens, in each case
contemplated by the Collateral and Guarantee Requirement or Section 5.12 or
5.13
hereof, (iv) the filing of a certificate of merger with the Delaware Secretary
of State to effect the Merger, (v) the filing of information in respect thereof
with the Securities and Exchange Commission and (vi) other consents, approvals,
registrations, filings or actions the failure of which to obtain or make,
individually or in the aggregate, would not reasonably be expected to result
in
a Material Adverse Effect, (b) will not violate the charter, by-laws or other
organizational documents of the Borrower or any of the Loan Parties,
(c) except to the extent that any such violations or defaults would not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, (i) will not violate any applicable law or regulation or any
order of any Governmental Authority and (ii) will not violate or result in
a
default under any indenture, agreement or other instrument binding upon the
Borrower or any of its Restricted Subsidiaries or its assets and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Restricted Subsidiaries, except Liens created under
the
Loan Documents (including Ratable Liens securing Ratable FCX Obligations and
Ratable Cyprus Obligations and, on and after the Additional Collateral Date,
Ratable PD Obligations). All applicable waiting periods and appeal periods
in
respect of the Transactions under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976 have expired, in each case without the imposition of burdensome
conditions
SECTION
3.04.
Financial
Condition; No Material Adverse Change. (a)
The
Borrower has
heretofore furnished to the Lenders the Borrower’s consolidated balance sheet
and consolidated statements of income, stockholders’ equity and cash flows as of
and for the fiscal year ended December 31, 2006, reported on by Ernst &
Young LLP, independent registered public accountants. Such financial statements
present fairly, in all material respects, the consolidated financial position
and consolidated results of operations and cash flows of the Borrower and its
consolidated Subsidiaries as of such date and for such period in accordance
with
GAAP.
(b)
The
Borrower has
heretofore furnished to the Lenders PD’s consolidated balance sheet and
consolidated statements of income, shareholders’ equity and cash flows as of and
for the fiscal year ended December 31, 2006, reported on by
PricewaterhouseCoopers LLP, independent registered public accountants. Such
financial statements present fairly, in all material respects, the consolidated
financial position and consolidated results of operations and cash flows of
PD
and its consolidated subsidiaries as of such date and for such period in
accordance with GAAP.
(c)
The
Borrower has
heretofore furnished to the Lenders its pro forma consolidated balance sheet
as
of December 31, 2006, prepared giving effect to the Transactions as if the
Transactions had occurred on such date. Such pro forma consolidated balance
sheet (i) has been prepared in good faith based on the same assumptions used
to
prepare the pro forma financial statements filed on Form 8-K with the Securities
and Exchange Commission on March 1, 2007 (which assumptions are believed by
the
Borrower to be reasonable), (ii) based on the information available at the
time
of preparation thereof, reasonably reflects the adjustments appropriate to
give
pro
forma
effect to the
Transactions and (iii) is derived from the historical financial statements
referred to in Sections 3.04(a) and 3.04(b) above.
(d)
Except
as disclosed
in the financial statements referred to above or the notes thereto or in the
Confidential Information Materials and except for the Disclosed Matters, after
giving effect to the Transactions, neither the Borrower nor any of the
Restricted Subsidiaries has, as of the Effective Date, any material contingent
liabilities, unusual long-term commitments or unrealized losses that would
reasonably be expected to give rise to a Material Adverse Effect.
(e)
Except
on the date
hereof and on the Effective Date (as to which the condition set forth in Section
4.01(t) shall apply), except as set forth in Schedule 3.04(e), since
December 31, 2006, there has been no material adverse change in (i) the
business, operations or financial condition of FCX and its Subsidiaries, taken
as a whole, (ii) the ability of any Loan Party to perform its obligations
under any Loan Document or (iii) the rights of or benefits available to the
Lenders under the Loan Documents.
SECTION
3.05.
Properties. (a)
Except
to the
extent that any failure to do so individually or in the aggregate would not
reasonably be expected to result in a Material Adverse Effect, the Borrower
and
each of the Restricted Subsidiaries has good title to, or valid leasehold
interests in, all of its real and personal property material to its business
(including the Mortgaged Properties), except for Liens permitted by Section
6.02.
(b)
Except
to the
extent that any such failure or infringement, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse Effect, the
Borrower and each of the Restricted Subsidiaries owns, or is licensed to use,
all trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and the Restricted
Subsidiaries does not infringe upon the rights of any other Person.
(c)
Except
to the
extent that any such condemnation proceedings, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse Effect, as
of
the Effective Date, none of the Borrower or any Restricted Subsidiary has
received notice of, or has knowledge of, any pending or contemplated
condemnation proceeding affecting any Mortgaged Property or any sale or
disposition thereof in lieu of condemnation.
SECTION
3.06.
Litigation
and
Environmental Matters. (a)
Except
for the
Disclosed Matters, there are no actions, suits or proceedings by or before
any
Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Restricted
Subsidiaries that would reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
(b)
Except
for the
Disclosed Matters and except for any other matters that, individually or in
the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Restricted Subsidiaries (i) has
failed to comply with any applicable Environmental Law or to obtain, maintain
or
comply with any permit, license or other approval required for its operations
or
properties under any applicable Environmental Law, (ii) is obligated to
remediate contamination resulting from releases of Hazardous Materials or
(iii) has received written notice of any claim with respect to any
Environmental Liability.
(c)
Since
the date of
this Agreement, there has been no change in the status of the Disclosed Matters
that, individually or in the aggregate, has resulted in a Material Adverse
Effect.
SECTION
3.07.
Compliance
with
Laws and Agreements.
The Borrower and
its Restricted Subsidiaries are in compliance in all material respects with
all
laws, regulations and orders of any Governmental Authority applicable to them
or
their properties and all indentures, agreements (including without limitation,
in the case of PTFI, the Contract of Work) and other instruments binding upon
them or their properties, except where the failure to do so, individually or
in
the aggregate, would not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION
3.08.
Investment
Company Status.
No Loan Party is
an “investment company” under the Investment Company Act of 1940.
SECTION
3.09.
Taxes.
The Borrower and
its Subsidiaries have timely filed or caused to be filed all Tax returns and
reports required to have been filed by them and have paid or caused to be paid
all Taxes required to have been paid by them, except (i) any Taxes that are
being contested in good faith by appropriate proceedings and for which the
Borrower or such Subsidiary, as applicable, has, to the extent required by
GAAP,
set aside on its books adequate reserves and (ii) returns and reports the
non-filing of which, and Taxes the non-payment of which, individually or in
the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
SECTION
3.10.
ERISA.
No ERISA Event has
occurred or is reasonably expected to occur that, when taken together with
all
other such ERISA Events for which liability is reasonably expected to occur,
would reasonably be expected to result in a Material Adverse Effect. Except
as
would not reasonably be expected to result in a Material Adverse Effect, the
present value of all accumulated benefit obligations under all underfunded
Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets
of all such underfunded Plans.
SECTION
3.11.
Disclosure.
The Confidential
Information Materials and the other reports, financial statements, certificates
and other information furnished in writing by the Loan Parties or on behalf
of,
and with the authorization of, the Loan Parties to the Administrative Agent
or
any Lender in connection with the negotiation of this Agreement or any other
Loan Document or delivered hereunder or thereunder (as modified or supplemented
by other information so furnished), taken as a whole, do not contain any
material misstatement of fact or omit to state any material fact necessary
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading; provided
that, with respect
to projected financial information, the Borrower represents only that (i) such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time delivered and (ii) if such projected financial
information was delivered prior to the Effective Date, such projected financial
information has not been modified by the Borrower as of the Effective Date
in
any respect material and adverse to the Lenders.
SECTION
3.12.
Subsidiaries.
Schedule 3.12 sets
forth the name of, and the ownership interest of the Borrower and each
Subsidiary in, each Subsidiary of the Borrower (other than Immaterial
Subsidiaries) and specifies whether each such Subsidiary is a Loan Party, in
each case as of the Effective Date.
SECTION
3.13.
Insurance.
Schedule 3.13 sets
forth a description of all material insurance maintained by or on behalf of
the
Borrower and its Restricted Subsidiaries as of the Effective Date. As of the
Effective Date, all material premiums in respect of such insurance are current
and such insurance is in full force and effect. The Borrower believes that
the
insurance maintained by or on behalf of the Borrower and its Restricted
Subsidiaries is adequate.
SECTION
3.14.
Labor
Matters.
As of the
Effective Date, there are no strikes, lockouts or slowdowns against the Borrower
or any Subsidiary pending or, to the knowledge of the Borrower, threatened,
that
would reasonably be expected to result, individually or in the aggregate, in
a
Material Adverse Effect. The consummation of the Transactions will not give
rise
to any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which the Borrower or any
Subsidiary is party that would reasonably be expected to result, individually
or
in the aggregate, in a Material Adverse Effect.
SECTION
3.15.
Security
Documents.
At all times on
and after the Effective Date,
(a)
(i)
The Collateral
Agreement shall be effective to create in favor of the Collateral Agent for
the
ratable benefit of the Secured Parties (as defined in the Collateral Agreement)
a valid and enforceable security interest in the Collateral (as defined therein)
and the proceeds thereof and (i) when the Collateral (as defined therein)
constituting certificated securities (as defined in the Uniform Commercial
Code
(as defined in the Collateral Agreement)) is delivered to the Collateral Agent
thereunder together with instruments of transfer duly endorsed in blank, the
security interest of the Collateral Agent therein will constitute a perfected
Lien on, and security interest in, all right, title and interest of the Grantors
(as defined in the Collateral Agreement) in such Collateral, prior and superior
in right to any other Person (subject only to Liens permitted under Section
6.02) (it being understood that no representation is made under this clause
(i)
as to (A) any such Collateral that is subject to a Foreign Pledge Agreement
or
(B) the perfection or priority of any Lien to the extent that such perfection
or
priority is determined under the law of a jurisdiction outside the United
States, which are covered by paragraph (b) below), and (ii) when financing
statements in appropriate form are filed in the offices specified in the
Perfection Certificate, the security interest of the Collateral Agent will
constitute a perfected Lien on and security interest in all right, title and
interest of the Grantors (as defined in the Collateral Agreement) in the
Collateral (as defined therein) and the proceeds thereof to the extent
perfection can be obtained by filing Uniform Commercial Code financing
statements, prior and superior to the rights of any other Person (subject only
to Liens permitted under Section 6.02).
(ii)
On and after
the Additional Collateral Date, the Additional Collateral Agreement shall be
effective to create in favor of the Collateral Agent for the ratable benefit
of
the Secured Parties (as defined in the Additional Collateral Agreement) a valid
and enforceable security interest in the Collateral (as defined therein) and
the
proceeds thereof and (i) when the Collateral (as defined therein) constituting
certificated securities (as defined in the Uniform Commercial Code (as defined
in the Additional Collateral Agreement)) is delivered to the Collateral Agent
thereunder together with instruments of transfer duly endorsed in blank, the
security interest of the Collateral Agent therein will constitute a perfected
Lien on, and security interest in, all right, title and interest of the Grantors
(as defined in the Additional Collateral Agreement) in such Collateral, prior
and superior in right to any other Person (subject only to Liens permitted
under
Section 6.02) (it being understood that no representation is made under this
clause (i) as to (A) any such Collateral that is subject to a Foreign Pledge
Agreement or (B) the perfection or priority
of
any Lien to the extent that such perfection or priority is determined under
the
law of a jurisdiction outside the United States, which are covered by paragraph
(b) below), and (ii) when financing statements in appropriate form are filed
in
the offices specified in the Additional Perfection Certificate, the security
interest of the Collateral Agent will constitute a perfected Lien on and
security interest in all right, title and interest of the Grantors (as defined
in the Additional Collateral Agreement) in the Collateral (as defined therein)
and the proceeds thereof to the extent perfection can be obtained by filing
Uniform Commercial Code financing statements, prior and superior to the rights
of any other Person (subject only to Liens permitted under Section
6.02).
(b)
After
taking the
actions specified for perfection therein, each Foreign Pledge Agreement, when
executed and delivered, will be effective under applicable law to create in
favor of the Collateral Agent for the ratable benefit of the Secured Parties
a
valid and enforceable security interest in the Collateral subject thereto,
and
will constitute a perfected Lien on and security interest in all right, title
and interest of the Loan Parties in the Collateral subject thereto, prior and
superior to the rights of any other Person (subject only to Liens permitted
under Section 6.02). Without limiting the foregoing, upon execution thereof and
upon service of notice of the pledge on the party against whom the pledged
rights must be exercised, each FCX Pledge Agreement, when executed and
delivered, will be in full force and effect and will constitute first priority,
perfected security interests in the Pledged PTFI Shares and the Pledged PTII
Shares, as applicable, in each case in favor of the Collateral Agent for the
ratable benefit of the holders of the Secured Obligations, the holders of the
FI
Obligations and the holders of the Ratable FCX Obligations (subject only to
Permitted Encumbrances).
(c)
When
the Additional
Collateral Agreement or a summary thereof is properly filed in the United States
Patent and Trademark Office and the United States Copyright Office, and, with
respect to Collateral in which a security interest cannot be perfected by such
filings, upon the proper filing of the financing statements referred to in
paragraph (a) above, the Additional Collateral Agreement and such financing
statements shall constitute a perfected Lien on, and security interest in,
all
right, title and interest of the grantors thereunder in the Material US Patents,
Material US Copyrights and Material US Trademarks (as defined in the Additional
Collateral Agreement), in each case prior and superior in right to any other
Person (subject only to Liens permitted under Section 6.02) (it being understood
that subsequent recordings in the United States Patent and Trademark Office
and
the United States Copyright Office may be necessary to perfect a lien on
Material US Patents, Material US Copyrights and Material US Trademarks acquired
by the grantors after the date hereof).
(d)
Each
Mortgage, upon
execution and delivery by the parties thereto, will create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable Lien on all the applicable mortgagor’s right, title and
interest in and to the Mortgaged Properties (other than immaterial portions
thereof) subject thereto and the proceeds thereof, and when the Mortgages have
been recorded in the jurisdictions specified in the Additional Perfection
Certificate, the Mortgages will constitute a perfected Lien on all right, title
and interest of the mortgagors in the Mortgaged Properties (other than
immaterial portions thereof) and the proceeds thereof, prior and superior in
right to any other Person (but subject to Liens permitted under Section 6.02)
(it being understood that for purposes of this paragraph (d) all the Mortgaged
Properties covered by a single Mortgage shall be deemed to be a single real
property).
(e)
At
all times on and
after the Effective Date, the Collateral and Guarantee Requirement is
satisfied.
SECTION
3.16.
Federal
Reserve
Regulations.
No part of the
proceeds of the Loans will be used, whether directly or indirectly, for any
purpose which entails a violation (including on the part of any Lender) of
Regulation U or X of the Board.
SECTION
3.17.
Solvency.
Immediately after
the consummation of the Transactions to occur on the Effective Date and
immediately following the making of each Loan made on the Effective Date and
after giving effect to the application of the proceeds of such Loans and to
all
rights of reimbursement, contribution and subrogation, (a) the fair value of
the
consolidated assets of the Borrower, at a fair valuation, will exceed its
consolidated debts and liabilities, subordinated, contingent or otherwise;
(b)
the present fair saleable value of the consolidated property of the Borrower
will be greater than the amount that will be required to pay the probable
liability of its consolidated debts and other liabilities, subordinated,
contingent or otherwise, as such consolidated debts and other liabilities become
absolute and matured; (c) the Borrower and its Subsidiaries, on a consolidated
basis, will be able to pay their consolidated debts and liabilities,
subordinated, contingent or otherwise, as such consolidated debts and
liabilities become absolute and matured; and (d) the Borrower will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Effective Date.
SECTION
3.18.
Senior
Indebtedness.
Each of the
Obligations constitutes “senior indebtedness” (however such concept is
denominated) under and in respect of each indenture or other agreement or
instrument under which any indebtedness that is junior or subordinated to the
Obligations is outstanding.
ARTICLE
IV
Conditions
SECTION
4.01.
Effective
Date.
The obligations of
the Lenders to make Loans and of the Issuing Banks to issue, amend, renew or
extend any Letter of Credit hereunder, and the incorporation of the Existing
Letters of Credit as Letters of Credit hereunder, shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 9.02):
(a) The
Administrative
Agent (or its counsel) shall have received from each party hereto either
(i) a counterpart of this Agreement signed on behalf of such party or
(ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy or electronic transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this
Agreement.
(b) The
Administrative
Agent shall have received such documents and certificates as the Administrative
Agent or its counsel may reasonably request relating to the organization,
existence and, to the extent applicable, good standing of the Loan Parties,
the
authorization of the Transactions and any other legal matters relating to the
Loan Parties, the Loan Documents or the Transactions, all in form and substance
reasonably satisfactory to the Administrative Agent and its
counsel.
(c) The
Administrative
Agent shall have received a certificate, dated the Effective Date and signed
by
the President, a Vice President or a Financial Officer
of
the Borrower,
confirming compliance with the conditions set forth in paragraphs (a), (b)
and
(c) of Section 4.02.
(d) The
Existing Credit
Agreement shall have been amended and restated as the Restated Credit Agreement.
(e) The
Administrative
Agent shall have received all fees and other amounts due and payable on or
prior
to the Effective Date under this Agreement, including (i) all fees
separately agreed to be payable to the Agents, X.X. Xxxxxx Securities Inc.
and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated by the Borrower in
respect of this Agreement and (ii) to the extent invoiced at least one
Business Day prior to the Effective Date, reimbursement or payment of all
out-of-pocket expenses (including fees, charges and disbursements of counsel)
required to be reimbursed or paid by the Borrower under this Agreement or any
other Loan Document.
(f) The
Administrative
Agent shall have received evidence that the insurance required by
Section 5.07 is in effect.
(g) All
consents and
approvals required to be obtained from any Governmental Authority or other
Person in connection with the execution of this Agreement shall have been
obtained.
(h) The
Lenders shall
have received projections (broken down by quarter for the first year and by
year
thereafter) of the Borrower and its Subsidiaries, after giving effect to the
Transactions, through the fifth anniversary of the Effective Date.
(i)
The Lenders shall
have received a satisfactory update to the ERM Report.
(j) The
Administrative
Agent shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of each
of
(i) Xxxxx Xxxx & Xxxxxxxx, New York counsel for the Borrower and the
Subsidiaries, substantially in the form of Exhibit G-1, (ii) Jones, Walker,
Xxxxxxxx, Poitevant, Carrère & Xxxxxxx, L.L.P., U.S. counsel for the
Borrower and the Subsidiaries, substantially in the form of Exhibit G-2, (iii)
local counsel in each jurisdiction where a Subsidiary Guarantor, a Subsidiary
Grantor (as defined in the Collateral Agreement) or a Permitted Pledgee the
Equity Interests in which are being pledged pursuant to the Collateral Agreement
or any Foreign Pledge Agreement is organized, in each case in form and substance
reasonably satisfactory to the Administrative Agent, (iv) Indonesian counsel
for
the Borrower, substantially in the form of Exhibit G-3, and (v) Indonesian
counsel for the Lenders, substantially in the form of Exhibit G-4.
(k) The
Administrative
Agent shall have received (i) a completed Perfection Certificate dated the
Effective Date and signed by the President, a Vice President or a Financial
Officer of the Borrower and (ii) the results of a lien search with respect
to
each Loan Party in the jurisdiction where such Loan Party is located (within
the
meaning of Section 9-307 of the Uniform Commercial Code as in effect in the
State of New York) and evidence reasonably satisfactory to the Administrative
Agent that the Liens indicated by such search are permitted by Section 6.02
or
have been (or, substantially simultaneous with the initial funding of Loans
on
the Effective Date, will be) released.
(l) The
Collateral and
Guarantee Requirement shall have been satisfied.
(m) The
Administrative
Agent shall have received a customary certificate from the chief financial
officer of the Borrower, certifying as to the solvency (within the meaning
of
Section 3.17) of the Borrower and its Subsidiaries on a consolidated basis
after
giving effect to the Transactions.
(n) The
Merger shall
have been consummated or shall be consummated substantially simultaneously
with
the initial funding of Loans on the Effective Date in accordance with applicable
law and the Merger Agreement (and no provision of the Merger Agreement shall
have been waived, amended, supplemented or otherwise modified from the form
thereof provided to the Agents on November 18, 2006, in a manner material and
adverse to the Lenders without the consent of the Agents). The Agents shall
have
received copies of the Merger Agreement and all certificates and other documents
delivered thereunder, certified by the President, a Vice President or a
Financial Officer of the Borrower as being complete and correct. The terms
of
any other agreements that are material to the interests of the Lenders entered
into in connection with the Merger shall not be inconsistent in any material
respect with the terms of the Term Sheet (including the annexes thereto)
contained in the Confidential Information Materials and the Merger
Agreement.
(o) All
commitments
under the PD Credit Agreement shall have been (or, substantially simultaneous
with the initial funding of Loans on the Effective Date, shall be) terminated,
and all loans, interest and other amounts accrued or owing thereunder shall
have
been repaid in full (except that the Existing Letters of Credit shall remain
outstanding as Letters of Credit hereunder or under the Restated Credit
Agreement) and all guarantees and liens granted in respect thereof shall have
been (or, substantially simultaneous with the initial funding of Loans on the
Effective Date, will be) released. The Administrative Agent shall have received
a payoff and release letter with respect to the PD Credit Agreement in form
and
substance reasonably satisfactory to the Administrative Agent.
(p) After
giving effect
to the Transactions, the Borrower and the Subsidiaries shall have outstanding
no
Indebtedness or preferred Equity Interests other than (i) the Loans and Letters
of Credit under this Agreement, (ii) the Senior Notes, (iii) credit extensions
under the Restated Credit Agreement, (iv) the Existing Indebtedness, (v) Capital
Lease Obligations incurred in the ordinary course of business, (vi) up to
$100,000,000 of credit facilities or other Indebtedness incurred after November
18, 2006, (vii) $1,100,000,000 of existing perpetual preferred stock of the
Borrower, (viii) Indebtedness owed to the Borrower or any Subsidiary that is
in
compliance with the Collateral and Guarantee Requirement and Section
6.01(a)(iii) and (ix) letters of credit issued in connection with environmental
assurances and reclamation or issued for the account of Foreign Subsidiaries
in
an aggregate face amount not exceeding $700,000,000.
(q) The
Lenders shall
have received (the receipt of which is hereby acknowledged) audited consolidated
balance sheets and consolidated statements of income, stockholders’ equity and
cash flows of each of the Borrower and PD as of and for each of the three most
recently completed fiscal years ended on or prior to December 31, 2006, and
the
related notes thereto, reported on by independent registered public accountants
(without a “going concern” or like qualification or
exception
and
without any qualification or exception as to the scope of such
audit).
(r) The
Administrative
Agent shall have received (the receipt of which is hereby acknowledged) a pro
forma consolidated balance sheet of the Borrower as of the date of the most
recent consolidated balance sheet delivered pursuant to paragraph (q) above
and
a pro forma statement of operations for the most recent fiscal year, adjusted
to
give effect to the Transactions, the other transactions related thereto and
any
other transactions that would be required to be given pro forma effect by
Regulation S-X promulgated under the Securities Act of 1933, as amended, and
such other adjustments as are customary for similar financings or as otherwise
agreed between the Borrower and the Administrative Agent.
(s) After
giving effect
to the Transactions on the Effective Date, the aggregate unused available amount
of Revolving Commitments and unused available commitments under the Restated
Credit Agreement shall be not less than $1,000,000,000.
(t) There
shall not
have occurred a “Material Adverse Effect” (as defined in the Merger Agreement)
in respect of PD and its subsidiaries.
The
Administrative
Agent shall promptly notify the Borrower and the Lenders of the Effective Date,
and such notice shall be conclusive and binding.
SECTION
4.02.
Each
Credit
Event.
The obligation of
each Lender to make a Loan, and of any Issuing Bank to issue, amend, extend
or
renew a Letter of Credit, is subject to receipt of the request therefor in
accordance herewith and to the satisfaction of the following
conditions:
(a) (i)
With respect to
any credit event following the Effective Date, the representations and
warranties of each Loan Party set forth in the Loan Documents shall be true
and
correct in all material respects on and as of the date of such Borrowing or
the
date of issuance, amendment, renewal or extension of such Letter of Credit,
as
applicable, except where such representations and warranties expressly relate
to
an earlier date, in which case such representations and warranties shall have
been true and correct in all material respects as of such earlier date and
(ii)
with respect to any credit event on the Effective Date, (A) such of the
representations made by or with respect to the Borrower, PD or their respective
subsidiaries in the Merger Agreement as are material to the interests of the
Lenders (but only to the extent that the Borrower has the right to terminate
its
obligations under the Merger Agreement as a result of a breach of such
representations in the Merger Agreement (determined without regard to any
waiver, amendment or other modification of the Merger Agreement)) and (B) the
Specified Representations shall be true and correct in all material respects
on
and as of the Effective Date.
(b) At
the time of and
immediately after giving effect to such Borrowing or issuance of such Letter
of
Credit, as applicable, the Incurrence Test shall be satisfied and no Default
shall have occurred and be continuing.
(c) At
the time of and
immediately after giving effect to any such Revolving Borrowing or issuance
of
such Letter of Credit, as applicable, the aggregate amount of unused
commitments, if any, existing under the Restated Credit Agreement shall not
exceed $5,000,000.
Each
making of a
Loan and each issuance, amendment, renewal or extension of a Letter of Credit
shall be deemed to constitute a representation and warranty by the Borrower
on
the date thereof as to the matters specified in paragraphs (a),
(b) and, if applicable, (c) of this Section.
ARTICLE
V
Affirmative
Covenants
Until
the
Commitments have expired or been terminated and the principal of and interest
on
each Loan and all fees payable hereunder shall have been paid in full, and
all
Letters of Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
and the Administrative Agent that:
SECTION
5.01.
Financial
Statements and Other Information.
The Borrower will
furnish to the Administrative Agent and each Lender:
(a) within
95 days
after the end of each fiscal year of the Borrower, beginning with fiscal year
2007, an audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries and related consolidated statements of income, stockholders’ equity
and cash flows as of the end of and for such year, setting forth in each case
in
comparative form the figures for the previous fiscal year, all reported on
by
Ernst & Young LLP or other registered independent public accountants of
recognized national standing (without a “going concern” or like qualification or
exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations
of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within
50 days
after the end of each of the first three fiscal quarters of each fiscal year
of
the Borrower, an unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries and related consolidated statements of income as
of
the end of and for such fiscal quarter and related consolidated statements
of
income and cash flows for the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for the corresponding period
or periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently
with
any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Borrower (i) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with respect
thereto, (ii) at any time that any Revolving Exposure is outstanding (other
than outstanding Letters of Credit that have been fully cash collateralized
in
accordance with Section 2.05(j)), setting forth reasonably detailed calculations
demonstrating compliance with the Financial Covenants, (iii) setting forth
reasonably
detailed
calculations of Consolidated Net Income, Consolidated Adjusted Net Income,
Consolidated EBITDA, Consolidated Total Assets, Consolidated Revenues, Equity
Proceeds, Restricted Uses and the Restricted Uses Basket as at the end of and
for the applicable fiscal period, (iv) stating whether any change in GAAP or
in
the application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate, and (v) identifying all Subsidiaries (other
than Immaterial Subsidiaries) formed or acquired since the end of the previous
fiscal quarter and indicating whether each such Subsidiary is a Restricted
Subsidiary or an Unrestricted Subsidiary;
(d) concurrently
with
any delivery of financial statements under clause (a) above, a certificate
of
the accountants that reported on such financial statements stating whether
they
obtained knowledge during the course of their examination of such financial
statements of any Event of Default under Section 6.14 or 6.15 (which certificate
may be limited to the extent required by accounting rules or
guidelines);
(e) at
least 30 days
prior to the commencement of each fiscal year of the Borrower, a detailed
consolidated budget for such fiscal year (including a projected consolidated
balance sheet and related consolidated statements of projected income and cash
flow, in each case as of the end of and for such fiscal year, and setting forth
the material underlying assumptions applicable thereto);
(f) promptly
after the
same become publicly available, copies of all periodic and other reports, proxy
statements and other materials publicly filed by the Borrower with the
Securities and Exchange Commission or any Governmental Authority succeeding
to
any or all of the functions of said Commission (other than amendments to any
registration statement (to the extent such registration statement, in the form
it became effective, is delivered), exhibits to any registration statement
and,
if applicable, any registration statement on Form S-8) and in any case not
otherwise required to be delivered to the Administrative Agent pursuant hereto;
and
(g) promptly
following
any request therefor, such other information regarding the operations, business
affairs and financial condition of the Borrower or any Restricted Subsidiary,
or
compliance with the terms of any Loan Document, as the Administrative Agent
or
any Lender may reasonably request.
SECTION
5.02.
Notices
of
Material Events.
Promptly after any
Financial Officer obtains knowledge thereof, the Borrower will furnish to the
Administrative Agent and each Lender written notice of the
following:
(a) the
occurrence of
any Default;
(b) the
filing or
commencement of any action, suit or proceeding by or before any arbitrator
or
Governmental Authority against or affecting the Borrower or any Subsidiary
thereof that would reasonably be expected to result in a Material Adverse
Effect;
(c) the
occurrence of
any ERISA Event that, alone or together with any other ERISA Events that have
occurred, would reasonably be expected to result in a Material Adverse Effect;
and
(d) any
other
development that results in, or would reasonably be expected to result in,
a
Material Adverse Effect.
Each
notice
delivered under this Section shall be accompanied by a statement of a Financial
Officer or other executive officer of the Borrower setting forth the details
of
the event or development requiring such notice and any action taken or proposed
to be taken with respect thereto.
SECTION
5.03.
Information
Regarding Collateral.
The Borrower will
furnish to the Administrative Agent and the Collateral Agent prompt written
notice of any change (i) in any Loan Party’s legal name, (ii) in any Loan
Party’s Federal Taxpayer Identification Number or identification number, if any,
issued to it by the jurisdiction under the laws of which it is organized or
(iii) in the jurisdiction of any Loan Party’s organization. The Borrower agrees
not to effect or permit any change referred to in the preceding sentence unless
all filings have been made under the Uniform Commercial Code or otherwise that
are required in order for the Administrative Agent or Collateral Agent, as
applicable, to continue, to the extent existing prior to such change, at all
times following such change to have a valid, legal and perfected security
interest in all the Collateral.
SECTION
5.04.
Existence;
Conduct of Business.
The Borrower will,
and will cause each of its Restricted Subsidiaries to, do or cause to be done
all things necessary to preserve, renew and keep in full force and effect (i)
its legal existence, except in the case of any Subsidiary other than PD or
PTFI
, to the extent the failure to do so would not reasonably be expected to have
a
Material Adverse Effect, and (ii) the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business, except to the extent the failure to do so would not
reasonably be expected to have a Material Adverse Effect; provided
that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03 and is in the case of PTFI subject to Section
9.18(c).
SECTION
5.05.
Payment
of
Obligations.
The Borrower will,
and will cause each of its Restricted Subsidiaries to, pay all Tax liabilities,
before the same shall become delinquent or in default, except where
(a)(i) the validity or amount thereof is being contested in good faith by
appropriate proceedings and (ii) the Borrower or such Subsidiary has set
aside on its books adequate reserves with respect thereto in accordance with
GAAP or (b) the failure to make any such payments, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
SECTION
5.06.
Maintenance
of
Properties.
Except where a
failure individually or in the aggregate to do so would not reasonably be
expected to result in a Material Adverse Effect, the Borrower will, and will
cause each of its Restricted Subsidiaries to, keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted.
SECTION
5.07.
Insurance.
The Borrower will,
and will cause each of its Restricted Subsidiaries to, maintain, with
financially sound and reputable insurance companies insurance in such amounts
and against such risks as are customarily maintained by companies of established
repute engaged in the same or similar businesses operating in the same or
similar locations (after giving effect to any self-insurance reasonable and
customary for similarly situated companies). On and after the Additional
Collateral Date, all such policies of insurance covering physical loss or damage
to Collateral shall be endorsed or otherwise amended to include the Collateral
Agent and Security Agent as loss payee as their interests may appear, in
customary form and
otherwise
in
accordance with Section 4.03(h) of the Additional Collateral Agreement. The
Borrower will furnish to the Lenders, upon request of the Administrative Agent,
information in reasonable detail as to the insurance so maintained.
SECTION
5.08.
Casualty
and
Condemnation.
On and after the
Additional Collateral Date, the Borrower will furnish to the Administrative
Agent prompt written notice of any casualty or other insured damage to any
material portion of the Collateral or the commencement of any action or
proceeding for the taking of any material portion of the Collateral under power
of eminent domain or by condemnation or similar proceeding.
SECTION
5.09.
Books
and
Records; Inspection and Audit Rights.
The Borrower will,
and will cause each of its Restricted Subsidiaries to, keep proper books of
record and account sufficient to permit the preparation of financial statements
in accordance with GAAP. The Borrower will, and will cause each of its
Restricted Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice and during
normal business hours, to visit and inspect its properties, to examine and
make
extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants; provided that,
excluding any such visits and inspections during the continuation of an Event
of
Default, only the Administrative Agent on behalf of the Lenders may exercise
rights under this Section 5.09 and the Administrative Agent shall not exercise
such rights more than two times during any calendar year absent the existence
of
an Event of Default and for one such time the reasonable expenses of the
Administrative Agent in connection with such visit or inspection shall be for
the Borrower’s account; provided, further, that when an Event of Default exists,
the Administrative Agent or any Lender (or any of their respective
representatives) may do any of the foregoing at the reasonable expense of the
Borrower at any time during normal business hours and upon reasonable advance
notice. The Administrative Agent and the Lenders shall give the Borrower the
opportunity to participate in any discussions with the Borrower’s independent
accountants.
SECTION
5.10.
Compliance
with
Laws; Environmental Reports. (a)
The
Borrower will,
and will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse
Effect.
(b)
Except
where the
failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, the Borrower will, and will
cause its Subsidiaries to, (i) comply, in all material respects with all
Environmental Laws applicable to its operations and properties, (ii) obtain
and
renew all permits required by Environmental Laws necessary for its operations
and properties, and (iii) conduct any remedial actions in compliance with
applicable Environmental Laws; provided,
however,
that the Borrower
and its Subsidiaries shall not be required to undertake any remedial action
or
obtain or renew any environmental permit, or comply with any Environmental
Law
to the extent that its obligation to do so is being contested in good faith
and
by proper proceedings and appropriate reserves, in accordance with GAAP, are
maintained in connection therewith. If the Borrower is in default of its
obligations under this paragraph, the Borrower will, at the request of the
Required Lenders through the Administrative Agent, provide to the Lenders within
60 days after such request, at the expense of the Borrower, an environmental
site assessment report for the properties to which such default relates,
prepared by an environmental consulting firm reasonably acceptable to the
Administrative Agent and evaluating whether or not Hazardous Materials are
likely to have been released at or to have adversely affected the
property,
or
otherwise resulted in Environmental Liability and the estimated cost of any
compliance or remedial action in connection with such matters.
(c)
The
Borrower will
in good faith and with commercially reasonable efforts, and will similarly
cause
each of its Subsidiaries to, in all material respects, operate its future major
new mining projects (including the Tenke Fungurume project) and related
activities in accordance with applicable IFC Guidelines and World Bank
Guidelines in existence on December 31, 2006, and as referenced in Annex A
to
the ERM Report, as appropriate to the nature of such new major project,
including with respect to the Otomona River at closure; provided,
however,
that such
requirement will not apply to future major new mining projects that are located
in the United States or in other jurisdictions where the applicable rules with
respect to environmental issues are generally equivalent or more stringent
than
the IFC and World Bank Guidelines referenced above. With respect to existing
operations in Indonesia, the Borrower will cause PTFI to maintain majority
compliance with applicable World Bank Guidelines and IFC Guidelines in existence
on December 31, 2006, except where noted and accepted in the ERM Report. In
addition, the Borrower will cause PTFI to conduct its operations in accordance
with the current International Council on Mining and Metals’ (ICMM) principles
referenced in Schedule 5.10A, and adhere to ICMM current commitments on World
Heritage properties included in Schedule 5.10B. In addition, FCX will
participate in the Extractive Industries Transparency Initiative dated as of
June 16, 2003.
(d)
The
Borrower will, and will cause each of its Restricted Subsidiaries to, in good
faith, use commercially reasonable efforts to work to satisfactorily address
the
open regulatory issues with the Government of Indonesia identified in the ERM
Report (see pages 11 to 14 thereof) and to comply with the commitments made
by
FCX in response to the ICCA Phase One Social Audit dated July 2005 as indicated
in Schedule 5.10C.
(e)
At
the request of the Administrative Agent and the Syndication Agent, the Borrower
will, at the Borrower’s expense, have ERM or another consultant reasonably
acceptable to the Administrative Agent and the Syndication Agent review the
Tenke Fungurume project and complete a report (the “TFM
Report”)
in respect thereof in scope and detail appropriate for a newly developed mining
project based on the applicable World Bank Guidelines and IFC performance
standards in existence on December 31, 2006. The Borrower will, and will cause
each of its Restricted Subsidiaries to, in good faith, use commercially
reasonable efforts to work to satisfactorily address any open regulatory issues
(consistent with the Amended and Restated Mining Convention dated September
28,
2005) with any Governmental Authority identified in the TFM Report.
(f)
The
Lenders shall have the right, at Borrower’s expense, to have ERM or another
consultant reasonably acceptable to the Borrower update each of the ERM Report
and the TFM Report once during the term of this facility. The Borrower will
promptly and in good faith report to the Agents and the Lenders any
unanticipated material adverse environmental, social or health and safety
developments.
SECTION
5.11.
Use
of Proceeds
and Letters of Credit.
The proceeds of
the Term Loans, together with (i) the proceeds of Revolving Loans, (ii) the
proceeds of the Senior Notes and (iii) cash will be used to (A) pay the cash
portion of the Merger Consideration and (B) pay the Transaction Costs. Letters
of Credit and the proceeds of the Revolving Loans and Swingline Loans drawn
after the Effective Date will be used for working capital and other general
corporate purposes of the Borrower and its Subsidiaries. No part of the proceeds
of any Loan will be used, whether directly or
indirectly,
for any
purpose that entails a violation (including on the part of any Lender) of
Regulation U or X of the Board. FCX shall ensure that at all times not more
than
25% of the value of the assets subject to the provisions of Sections 6.02 and
6.05 will consist of Margin Stock (as defined in Regulation U of the Board);
provided that FCX may permit such Margin Stock to exceed 25% of the value of
the
assets subject to the provisions of Sections 6.02 and 6.05 if FCX shall have
otherwise put into place currently effective arrangements to ensure compliance
with Regulation U and X and the Administrative Agent shall have received an
opinion satisfactory to it as to such compliance from a law firm satisfactory
to
the Administrative Agent.
SECTION
5.12.
Additional
Subsidiaries.
If any additional
Restricted Subsidiary is formed or acquired during any fiscal quarter after
the
Effective Date, the Borrower will, within 60 days (or such longer period as
the
Administrative Agent may agree in writing) after the end of such fiscal quarter,
notify the Administrative Agent, the Collateral Agent and the Lenders thereof
and cause the Collateral and Guarantee Requirement to be satisfied to the extent
applicable with respect to such Restricted Subsidiary and any intercompany
Indebtedness owed by such Subsidiary to the Borrower or, after the Additional
Collateral Date, any other Loan Party.
SECTION
5.13.
Further
Assurances.
On and after the
Effective Date, the Borrower will execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be required
under any applicable law, or which the Administrative Agent, the Collateral
Agent or the Required Lenders may reasonably request, to cause the Collateral
and Guarantee Requirement to be and remain satisfied, all at the expense of
the
Loan Parties. The Borrower also agrees to provide to the Administrative Agent
or
the Collateral Agent, from time to time upon reasonable request, evidence
reasonably satisfactory to the Collateral Agent as to the perfection and
priority of the Liens created or intended to be created by the Security
Documents.
ARTICLE
VI
Negative
Covenants
Until
the
Commitments have expired or terminated and the principal of and interest on
each
Loan and all fees payable hereunder have been paid in full, and all Letters
of
Credit shall have expired or terminated and all LC Disbursements shall have
been
reimbursed, the Borrower covenants and agrees with the Lenders and the
Administrative Agent that:
SECTION
6.01.
Indebtedness;
Certain Equity Securities. (a)
The
Borrower will
not, and will not permit any Restricted Subsidiary to, create, incur, assume
or
permit to exist any Indebtedness or Attributable Debt, except:
(i) (A)
Indebtedness
created under the Loan Documents, (B) Indebtedness created under the Restated
Credit Agreement and the “Loan Documents” thereunder in an aggregate principal
amount not in excess of the revolving commitments of the lenders under the
Restated Credit Agreement on the Effective Date and (C)(1) Ratable Guarantees
of
Ratable FCX Obligations by the Loan Parties and (2) Indebtedness arising
pursuant to Ratable Liens securing Ratable Obligations;
(ii) Indebtedness,
including Guarantees, existing on the date hereof and set forth in
Schedule 6.01;
(iii) Indebtedness
of the
Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to the
Borrower or any other Restricted Subsidiary; provided
that any such
Indebtedness owing to FCX or, at any time on and after the Additional Collateral
Date, owing to any Loan Party, shall, to the extent that any such Indebtedness
from any single obligor to any single obligee exceeds $25,000,000 in aggregate
principal amount, be evidenced by a promissory note that shall have been pledged
pursuant to the Collateral Agreement or the Additional Collateral Agreement,
as
applicable;
(iv) secured
or
unsecured Indebtedness of the Borrower or any Restricted Subsidiary and
Attributable Debt in respect of sale and leaseback transactions permitted by
Section 6.06(a), in each case incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital
Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior
to
the acquisition thereof but excluding Project Financings; provided
that (A) any
such Indebtedness or Attributable Debt is incurred within 180 days prior to
or
within 180 days after such acquisition or the completion of such
construction or improvement and (B) any such Attributable Debt is incurred
in accordance with Section 6.06; and provided further
in each case that
(1) no Event of Default shall have occurred and be continuing or would result
therefrom and (2) immediately after giving effect to the incurrence thereof,
the
Incurrence Test would be satisfied;
(v) Project
Financings
and Guarantees thereof in each case by the direct or indirect parent or parents
of the applicable Project Financing Subsidiary, provided
in each case that
(A) no Event of Default shall have occurred and be continuing or would result
therefrom and (B) immediately after giving effect to the incurrence thereof,
the
Incurrence Test would be satisfied;
(vi) in
the case of FCX,
the Senior Notes;
(vii) unsecured
Guarantees of FCX or PTFI of obligations of a purchaser in an FCX Assisted
PTFI
Sale to lenders providing financing for such sale in an aggregate amount not
at
any time in excess of (x) the aggregate amount of cash consideration received
by
FCX or any Restricted Subsidiary for such FCX Assisted PTFI Sale minus
(y) the aggregate
amount of payments theretofore made in respect of principal obligations under
such Guarantee;
(viii) letters
of credit
in connection with environmental assurances and reclamation in an aggregate
face
amount not exceeding $700,000,000 at any time outstanding;
(ix) unsecured
Indebtedness of FCX or any Loan Party, provided
that all the Net
Proceeds thereof are applied promptly to prepay Term Loans in accordance with
Section 2.10;
(x) other
Indebtedness
of FCX, provided
that (A) no Event
of Default shall have occurred and be continuing or would result therefrom
and
(B) immediately after giving effect to the incurrence thereof, the Incurrence
Test would be satisfied;
(xi) other
Indebtedness
of the Restricted Subsidiaries and Attributable Debt in respect of sale and
leaseback transactions permitted pursuant to Section 6.06(c) in an aggregate
principal amount at any time outstanding, taken together with all outstanding
secured Indebtedness of FCX incurred under clause (x), (A) not in excess of
the
greater of $1,500,000,000 and 3.5% (or (A) at any time when the aggregate
principal amount of the Term Loans, the Revolving Commitments and the revolving
commitments under the Restated Credit Agreement shall be less than
$8,000,000,000 but greater than or equal to $5,000,000,000, 6% or (B) at any
time when FCX is Investment Grade and the aggregate principal amount of the
Term
Loans, the Revolving Commitments and the revolving commitments under the
Restated Credit Agreement shall be less than $5,000,000,000, 8%) of Consolidated
Total Assets, provided
that (1) no Event
of Default shall have occurred and be continuing or would result therefrom
and
(2) immediately after giving effect to the incurrence thereof, the Incurrence
Test would be satisfied; and
(xii) Permitted
Refinancings of Indebtedness or Attributable Debt outstanding under clauses
(i)(C) (in connection with a Permitted Refinancing of the related Indebtedness),
(ii), (iv), (v), (vi), (vii), (ix) and (x).
Notwithstanding
the
foregoing or any other provision hereof, (1) no Restricted Subsidiary shall
Guarantee the Senior Notes, (2) no US Receivables Facility shall be established
unless an intercreditor agreement reasonably satisfactory to the Administrative
Agent shall be effective between the Administrative Agent (the substantive
provisions of which shall not require any action by such financing parties
or
their representatives other than in connection with and following the occurrence
of the Additional Collateral Date other than to accommodate potential security
interests under the Additional Security Documents, including in connection
with
lock-box procedures) and the financing parties for such Receivables Facility
or
their representative (and each Lender hereby authorizes and directs the
Administrative Agent to enter into such intercreditor agreement), and (3) no
Receivables Facility shall be established under which assets of PTFI or its
subsidiaries are included.
(b)
The
Borrower will
not permit PTFI nor any other Restricted Subsidiary to issue any preferred
stock
or other preferred Equity Interests; provided
that PTFI and any
Restricted Subsidiary may issue preferred stock or other preferred Equity
Interests in an aggregate stated amount not in excess of $500,000,000;
provided
that no such
preferred stock or preferred Equity Interests shall be subject to any
redemption, repurchase or defeasance requirement prior to the date six months
after the Tranche B Maturity Date.
SECTION
6.02.
Liens.
The Borrower will
not, and will not permit any Restricted Subsidiary to, create, incur, assume
or
permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:
(a) Liens
created under
or specifically required by the Loan Documents securing some or all of the
Obligations; Ratable Liens created under or specifically required by the Loan
Documents securing some or all of the Ratable FCX Obligations and Ratable Cyprus
Obligations and, on and after the Additional Collateral Date, some or all of
the
Ratable PD Obligations (provided
that each such
Ratable Lien on any asset shall by its terms automatically be released upon
the
release of the Lien on such asset securing the Secured Obligations); and Liens
created under or specifically required by the FI Security Documents or the
Restated Credit Agreement securing some or all of the FI Obligations;
(b) Permitted
Encumbrances;
(c) any
Lien on any
property or asset of the Borrower or any Restricted Subsidiary existing on
the
date hereof and set forth in Schedule 6.02; provided
that (i) such
Lien shall not apply to any other property or asset of the Borrower or any
Restricted Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof by more than the amount of accrued interest thereon and fees, expenses
and premiums paid in connection with such extension, renewal or
replacement;
(d) Liens
on fixed or
capital assets acquired, constructed or improved by the Borrower or any
Restricted Subsidiary; provided
that (A) such
Liens secure Indebtedness or Attributable Debt permitted by clause (iv) of
Section 6.01(a) or extensions, renewals or replacements thereof permitted by
Section 6.01(a)(xii), (B) such Liens (or the Liens securing the Indebtedness
or
Attributable Debt so extended, renewed or replaced) and the Indebtedness secured
thereby are incurred within 180 days prior to or within 180 days after such
acquisition or the completion of such acquisition, construction or improvement,
(C) the Indebtedness or Attributable Debt secured thereby does not exceed by
more than a de minimis amount the cost of acquiring, constructing or improving
such fixed or capital assets and (D) such Liens shall not apply to any other
property or assets of the Borrower or any Restricted Subsidiary;
(e) Liens
securing any
Project Financing or any Guarantee thereof by any direct or indirect parent
of
the applicable Project Financing Subsidiary; provided
that (A) such
Liens secure only Indebtedness or Attributable Debt permitted by Section
6.01(a)(v) or extensions, renewals or replacements thereof permitted by Section
6.01(a)(xii) and (B) such Liens do not apply to any property or assets of the
Borrower or any Restricted Subsidiaries other than the assets of the applicable
Project Financing Subsidiary and Equity Interests in the applicable Project
Financing Subsidiary or any direct or indirect parent thereof that holds no
significant assets other than direct or indirect ownership interests in such
Project Financing Subsidiary or assets related to, or ownership interests in
Subsidiaries that hold assets related to, the operations of such Project
Financing Subsidiary;
(f) required
margin
deposits on, and other Liens on assets (other than Equity Interests) of the
Borrower or any Restricted Subsidiary securing obligations under, Hedging
Agreements permitted hereunder;
(g) Liens
on property,
other assets or shares of stock of a Person at the time such Person becomes
a
Restricted Subsidiary (or at the time the Borrower or a Restricted Subsidiary
acquires such property, other assets or shares of stock, including any
acquisition by means of a merger, consolidation or other business combination
transaction with or into any Restricted Subsidiary); provided,
however,
that such Liens
are not created, incurred or assumed in anticipation of or in connection with
such other Person becoming a Restricted Subsidiary (or such acquisition of
such
property, other assets or stock); and provided,
further,
that such Liens
are limited to all or part of the same property, other assets or stock (plus
improvements, accession, proceeds or dividends or distributions in connection
with the original property, other assets or stock) that secured the obligations
to which such Liens relate;
(h) Liens
on assets or
property of any Restricted Subsidiary (other than any Loan Party) securing
Indebtedness or other obligations of such Restricted Subsidiary owing to the
Borrower or another Restricted Subsidiary;
(i) Liens
securing any
Permitted Refinancing of Indebtedness or Attributable Debt that was previously
so secured, and permitted to be secured under this Agreement; provided
that any such Lien
is limited to all or part of the same property or assets (plus improvements
and
accessions thereto) that secured the Indebtedness or Attributable Debt being
refinanced at the time of such refinancing;
(j) Liens
incurred in
the ordinary course of business with respect to obligations (other than
Indebtedness for borrowed money) which do not exceed $100,000,000 at any one
time outstanding;
(k) Liens
on Equity
Interests or other securities or assets of any Unrestricted Subsidiary that
secure Indebtedness of such Unrestricted Subsidiary;
(l) Liens
on amounts
not to exceed the sum of up to three years of regularly scheduled interest
payments in respect of Indebtedness of the Borrower permitted hereby, which
amounts shall have been placed in interest reserve accounts in connection with
the issuance of such Indebtedness to secure the obligations under such
Indebtedness;
(m) the
RTZ
Interests;
(n) Liens
on cash,
Permitted Investments and other assets securing (i) letters of credit permitted
pursuant to Section 6.01(a)(viii) and (ii) environmental assurance and
reclamation claims, provided
that the aggregate
amount of cash, Permitted Investments and other assets subject to such Liens
under this paragraph (n) shall not at any time exceed $700,000,000;
(o) Liens
not expressly
permitted by clauses (a) through (n) securing Indebtedness permitted pursuant
to
Section 6.01(a)(x) or (xi) and Attributable Debt in respect of sale and
leaseback transactions permitted pursuant to Section 6.06(c), provided
that such Liens
are created in connection with the incurrence of such Indebtedness.
and
(p) Liens
on the
receivables, metals and related assets subject to any Receivables Facility,
Metalstream Transaction or other Indebtedness included in clause (j) of the
definition of “Indebtedness”.
SECTION
6.03.
Fundamental
Changes. (a)
The
Borrower will
not, nor will it permit any Restricted Subsidiary to, effect any Proscribed
Consolidation. “Consolidation”
means
the merger,
consolidation, liquidation or dissolution of any Person with or into any other
Person or the sale, transfer, lease or other disposition of all or substantially
all the assets of any Person to another Person. “Proscribed
Consolidation”
means
any
Consolidation of (i) PD and FCX or (ii) any of (A) on the one hand, PTFI, PD
Morenci, Cyprus Climax Metals Company, Xxxxxx Dodge Exploration Company, O&C
Holdco or any of their subsidiaries, and (B) on the other hand, FCX or PD.
“Proscribed
Consolidation”
shall
also mean
any merger or consolidation involving FCX in which FCX is not the surviving
Person (the “Successor
Company”)
unless (1) the
Successor
Company
will be a
corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and the Successor Company
will expressly assume, by an agreement executed and delivered to the
Administrative Agent, in form reasonably satisfactory to the Administrative
Agent, all the obligations of FCX under the Loan Documents; and (2) immediately
after giving effect to such transaction (and treating any Indebtedness which
becomes an obligation of the Successor Company or any Restricted Subsidiary
as a
result of such transaction as having been incurred by the Successor Company
or
such Restricted Subsidiary at the time of such transaction), (A) no Event of
Default shall have occurred and be continuing or would result therefrom and
(B)
immediately after giving effect to such incurrence, the Incurrence Test would
be
satisfied.
(b)
The
Borrower will
not, nor will it permit any Restricted Subsidiary to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate
with it, or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Event of Default shall have occurred
and be continuing, (i) any Restricted Subsidiary may merge into any other
Restricted Subsidiary in a transaction in which the surviving entity is a
Restricted Subsidiary and (ii) any Restricted Subsidiary that is not owned
directly by FCX, any Immaterial Subsidiary and any Subsidiary engaged primarily
in exploration activities may liquidate or dissolve if the Borrower determines
in good faith that such liquidation or dissolution is in the best interests
of
the Borrower and is not materially disadvantageous to the Lenders; provided
that such
transaction shall not constitute a Proscribed Consolidation and the surviving
corporation in any merger involving a Loan Party shall be a Loan
Party.
(c)
FCX
will not engage
in any business or activity other than (i) the ownership of (A) outstanding
Equity Interests in Subsidiaries that are pledged as Collateral to the extent
required by the Collateral and Guarantee Requirement (subject to the Collateral
and Guarantee Minimum Requirement), (B) Indebtedness owed by Subsidiaries that
is pledged as Collateral, (C) cash and Permitted Investments that with
de minimis
exceptions is
pledged as Collateral and held in accounts subject to control agreements for
the
benefit of the Secured Parties, (D) other cash and Permitted Investments
securing letters of credit permitted pursuant to Section 6.01(a)(viii), and
(E)
other assets the aggregate book value of which is not in excess of $100,000,000;
(ii) the issuance of Equity Interests, the making of Restricted Payments, the
incurrence of Indebtedness and the making of Investments in Subsidiaries, in
each case to the extent not otherwise prohibited hereunder; and (iii) corporate
maintenance activities associated with being a public company and with being
a
holding company for a consolidated group and other de minimis
activities as are
customary for public holding companies that are similarly situated (including,
without limitation, the employment of certain employees).
(d)
Xxxxxx
Dodge
Morenci, Inc. will not engage in any business or activity other than the
ownership, operation and financing of the mining interests and business in
Morenci, Arizona, which it owns and engages in on the Effective Date and
extensions, expansions, improvements and modifications thereof in locations
in
which Xxxxxx Dodge Morenci, Inc. has interests on the Effective Date and
interests contiguous or in reasonable proximity thereto (collectively, the
“Morenci
Property”)
(the
“Morenci
Business”).
For the
avoidance of doubt, the Morenci Business includes the mining, milling and
leaching of mineral bearing material and the production of copper and molybdenum
concentrates, copper precipitates and electrowon copper cathode at the Morenci
Property, any exploration, development or other capital programs relating to
the
Morenci Property and any activities incidental to any of the foregoing.. Xxxxxx
Dodge Morenci, Inc. will not own or acquire any assets (other than the Morenci
Business and assets incidental thereto, including cash and Permitted
Investments) or incur any liabilities (other than liabilities imposed by law,
including tax liabilities, and other liabilities incidental to its existence
and
the Morenci Business (including Indebtedness to
fund
the operation,
development, expansion, improvement or enhancement of the Morenci
Business).
(e)
For
the avoidance
of doubt, the limitations set forth in paragraphs (a) through (d) above shall
not limit the sale, transfer, lease or other disposition of equipment between
Restricted Subsidiaries in the ordinary course of business or sales, transfers,
leases or other dispositions of assets (other than in the case of a Proscribed
Consolidation) (i) from Subsidiary Guarantors to Subsidiary Guarantors, (ii)
from non-Subsidiary Guarantors to Subsidiary Guarantors, (iii) from Subsidiary
Guarantors to Restricted Subsidiaries and joint ventures of Subsidiary
Guarantors or (iv) from non-Subsidiary Guarantors to non-Subsidiary Guarantors,
so long as, in the case of sales, transfers, leases or other dispositions to
non-Subsidiary Guarantors, a Subsidiary other than PD that directly or
indirectly holds such transferee as a subsidiary is a Guarantor or the Equity
Interests in which are pledged as Collateral to the extent required under clause
(b) or (d), as applicable, of the definition of Collateral and Guarantee
Requirement.
(f)
The
Borrower will
not, and will not permit any of its Restricted Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted
by
the Borrower and its Restricted Subsidiaries on the Effective Date and
businesses reasonably related thereto.
SECTION
6.04.
Investments
in
Unrestricted Subsidiaries.
The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, purchase, hold,
make or acquire (including pursuant to any merger and including each increase
to
the Unrestricted Subsidiary LC Exposure) any Investment in any Unrestricted
Subsidiary, except to the extent that after giving effect to any such
Investment, (A) the Incurrence Test would be satisfied and (B) either (x) the
Unrestricted Subsidiary Investment Amount shall not exceed 1% of Consolidated
Total Assets, or (y) if the Unrestricted Subsidiary Investment Amount shall
exceed 1% of Consolidated Total Assets, or to the extent resulting in the
Unrestricted Subsidiary Investment Amount exceeding 1% of Consolidated Total
Assets, such Investment shall constitute a Restricted Use and the Restricted
Uses shall not exceed the Restricted Uses Basket. In connection with each such
Investment that exceeds $25,000,000, the Borrower shall deliver to the
Administrative Agent (x) written notice of such Investment and (y) a
certificate, dated the effective date of such Investment, of a Financial Officer
stating that no Event of Default has occurred and is continuing, specifying
whether such Investment is made in reliance on clause (x) or (y) of the
immediately preceding sentence and setting forth reasonably detailed
calculations demonstrating compliance with the requirements of clauses (A)
and
(B) of such sentence.
SECTION
6.05.
Asset
Sales. (a)
The
Borrower will
not, and will not permit any of its Restricted Subsidiaries to, sell, transfer,
lease or otherwise dispose of all or substantially all the assets of FCX and
the
Restricted Subsidiaries.
(b)
The
Borrower will
not, and will not permit any of its Restricted Subsidiaries to, sell, transfer,
lease or otherwise dispose of any asset, including any Equity Interest owned
by
it, nor will the Borrower permit any of its Restricted Subsidiaries to issue
any
additional Equity Interest in such Restricted Subsidiary, except:
(i) sales
of inventory,
used or surplus equipment and Permitted Investments in the ordinary course
of
business;
(ii) sales,
transfers
and dispositions to the Borrower or a Restricted Subsidiary; provided
that any such
sales, transfers or dispositions between a Loan
Party
and a
Subsidiary that is not a Loan Party shall be made in compliance with Section
6.03;
(iii) any
sale or
issuance of Transferred Shares in a Qualifying PTFI Sale
Transaction;
(iv) sales
of assets as
part of a sale and leaseback transaction permitted by
Section 6.06;
(v) any
sale of Equity
Interests in Restricted Subsidiaries to PT-Rio Tinto Indonesia; provided
that such sale is
made pursuant to Section 3.6 of the Participation Agreement; provided further
that any such
Restricted Subsidiary shall continue to comply with the Collateral and Guarantee
Requirement;
(vi) any
sale of Equity
Interests in Unrestricted Subsidiaries;
(vii) sales,
transfers
and other dispositions of assets that are not permitted by any other clause
of
this paragraph (b), subject to the Incurrence Test and to compliance with
Section 2.10(c); and
(viii) dispositions
of
receivables, metals and related assets subject to any Receivables Facility,
Metalstream Transaction or other Indebtedness included in clause (j) of the
definition of “Indebtedness”;
provided
that:
|
(A)
|
except
as
permitted under Section 6.05(c), no such sale, transfer, lease or
other
disposition of any Equity Interests in any Loan Party (subject in
the case
of PTFI to clause (iii) above) or any Wholly Owned Subsidiary of
FCX the
Equity Interests in which are pledged under a Security Document shall
be
permitted unless such Equity Interests constitute all the Equity
Interests
in such Subsidiary held by FCX and the Restricted Subsidiaries;
and
|
|
(B)
|
all
sales,
transfers, leases and other dispositions permitted hereby (other
than
those permitted by clauses (i), (ii) and (iii) above) shall be made
for fair value and for (I) 100% cash consideration in the case of
transactions permitted by clause (iv), and (II) at least 75% cash
consideration in the case of transactions permitted by clauses (v),
(vi)
and (vii); provided,
however,
that for
the purposes of this paragraph (B), (1) any Permitted Investments
received
as consideration, (2) any liabilities (as shown on the most recent
consolidated balance sheet of FCX provided hereunder or in the footnotes
thereto) of FCX or the applicable Restricted Subsidiary, other than
with
respect to Indebtedness that is not secured by the assets disposed
of,
that are assumed by the transferee with respect to the applicable
disposition and for which FCX and all of the Restricted Subsidiaries
shall
have been validly released by all applicable creditors, (3) any securities
received by FCX or such Restricted Subsidiary from such transferee
that
are converted by FCX or such Restricted Subsidiary into cash (to
the
extent of the cash received) within 180 days following the closing
of the
applicable disposition and (4) any Designated Noncash Consideration
received by FCX or such Restricted Subsidiary in respect of such
disposition having an aggregate fair market value, taken together
with all
other Designated Noncash Consideration received pursuant to this
|
| clause (4) that is at that time outstanding, not in excess of the greater of $500,000,000 and 1.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall in each case of clauses (1), (2), (3) and (4) be deemed to be cash. |
(c)
Notwithstanding
any other provision of this Agreement or any other Loan Document:
(i) PTFI
will not sell,
transfer, lease or otherwise dispose of the Contract of Work or any rights
thereunder;
(ii) FCX
or PTII may not
sell, transfer or otherwise dispose of Equity Interests in PTFI, and PTFI may
not issue additional Equity Interests (each a “PTFI
Share
Sale”),
except
that:
|
(A)
|
this
clause
(ii) shall not prohibit any PTFI Share Sale if after giving effect
thereto
FCX holds, directly or indirectly, PTFI Shares representing at least
80%
of all the Equity Interests in
PTFI;
|
|
(B)
|
at
any time
when the aggregate principal amount of the Term Loans, the Revolving
Commitments and the revolving commitments under the Restated Credit
Agreement shall be less than $8,000,000,000, this clause (ii) shall
not
prohibit any PTFI Share Sale if after giving effect thereto FCX holds,
directly or indirectly, PTFI Shares representing at least 70% of
all the
Equity Interests in PTFI; and
|
|
(C)
|
this
clause
(ii) shall not prohibit any PTFI Share Sale that results in FCX holding,
directly or indirectly, PTFI Shares representing less than 70% of
all the
Equity Interests in PTFI if after giving effect thereto (1) FCX holds,
directly or indirectly, PTFI Shares representing at least 50.1% of
all the
Equity Interests in PTFI, (2) the Additional Collateral Date shall
have
occurred on or prior to the date on which such sale, transfer or
other
disposition is consummated, (3) the consideration for the PTFI Shares
included in such transaction that reduce FCX’s holdings below 70% of all
the Equity Interests in PTFI (the “Core Shares”) shall be 100% cash and
all the Net Proceeds received in respect of the Core Shares (the
“Core Net
Proceeds”) shall be applied promptly to the prepayment of Term Loans (it
being understood in the event that PTFI Shares other than the Core
Shares
are also included in such transaction, (x) the application of the
Net
Proceeds of such other PTFI Shares shall be governed by the provisions
of
Section 2.10(c) of the Parent Credit Agreement and (y) the expenses
of the
entire transaction shall be allocated ratably between the Core Shares
and
such other PTFI Shares), and (4) after giving effect to any such
transaction and the related prepayment of Term Loans, the aggregate
principal amount of the Term Loans, the Revolving Commitments and
the
revolving commitments under the Restated Credit Agreement shall be
no
greater than the amount equal to $8,000,000,000 minus the Core Net
Proceeds; and
|
(iii) no
Pledged PTFI
Shares shall be sold in any transaction under clause (ii) unless all the capital
stock of PTFI then held by FCX and not constituting
Pledged
PTFI
Shares, if any, is sold in such transaction. Each of the Collateral Agent and
the Security Agent is hereby authorized and directed in the case of any sale
of
Pledged PTFI Shares together with all unpledged PTFI Shares in compliance with
Section 6.05(b)(iii) or this Section 6.05(c) to release any and all Liens of
the
Secured Parties and the FI Secured Parties therein.
SECTION
6.06.
Sale
and
Leaseback Transactions.
The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, enter into
any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned
or
hereinafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred, except for (a) any such sale and leaseback
of any fixed or capital assets that is made for cash consideration in an amount
not less than the cost of such fixed or capital asset and is consummated within
180 days after the Borrower or such Restricted Subsidiary acquires or completes
the construction of such fixed or capital asset; (b) any such sale and leaseback
of Project Financing Assets as part of a Project Financing, provided
in each case that
such sale and leaseback is solely for cash; and (c) any sale and leaseback
of fixed or capital assets; provided
that the aggregate
amount of the Attributable Debt in respect of such sale and leaseback
transactions under this clause (c) at any time outstanding, taken together
with
all outstanding secured Indebtedness of FCX incurred under Section 6.01(a)(x)
and all Indebtedness incurred pursuant to Section 6.01(a)(xi), shall not
exceed the greater of $1,500,000,000 and 3.5% (or (x) at any time when the
aggregate principal amount of the Term Loans, the Revolving Commitments and
the
revolving commitments under the Restated Credit Agreement shall be less than
$8,000,000,000 but greater than or equal to $5,000,000,000, 6% or (y) at any
time when FCX is Investment Grade and the aggregate principal amount of the
Term
Loans, the Revolving Commitments and the revolving commitments under the
Restated Credit Agreement shall be less than $5,000,000,000, 8%) of Consolidated
Total Assets; provided
in each case under
clauses (a), (b) and (c) that (A) no Event of Default shall have occurred and
be
continuing or would result therefrom and (B) immediately after giving effect
to
the incurrence thereof, the Incurrence Test would be satisfied.
SECTION
6.07.
Hedging
Agreements.
The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, enter into
any
Hedging Agreement, other than Hedging Agreements entered into in the ordinary
course of business to hedge or protect against actual or reasonably anticipated
risks to which the Borrower or any Restricted Subsidiary is exposed in the
conduct and financing of its business, and not in any event for
speculation.
SECTION
6.08.
Restricted
Payments; Certain Payments of Indebtedness. (a)
The
Borrower will
not, nor will it permit any Restricted Subsidiary to, declare or make, or agree
to pay or make, directly or indirectly, any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, except
(i) Restricted
Subsidiaries may declare and pay dividends ratably with respect to their capital
stock (A) to shareholders other than FCX, (B) to FCX to the extent the proceeds
of such dividends are applied to pay operating expenses in the ordinary course
of business, and (C) to FCX so long as (1) no Event of Default under clause
(a)
or (b) of Article VII shall have occurred and be continuing and (2) if any
Event
of Default other than under clause (a) or (b) of Article VII shall have occurred
and be continuing (or shall result from the payment thereof), so long as the
Required Lenders shall not have given notice to
FCX
that such
dividends shall not be permitted to be paid during the pendency of such Event
of
Default,
(ii) so
long as no Event
of Default shall have occurred and be continuing (or shall result from the
payment thereof), FCX may pay regularly scheduled quarterly dividends in respect
of its preferred stock issued and outstanding on the Effective Date and effect
regularly scheduled mandatory redemptions of its preferred stock issued and
outstanding on the Effective Date, in each case, to the extent and in the
amounts required by the terms of such preferred stock as in effect on the
Effective Date,
(iii) so
long as no Event
of Default shall have occurred and be continuing (or shall result from the
payment thereof), FCX may, consistent with its dividend practices as of the
Effective Date, and subject to the Incurrence Test, declare and pay dividends
on
its shares of common stock (and on shares of common stock issued upon the
conversion of or in exchange for shares of FCX’s 5 1/2% Convertible Perpetual
Preferred Stock outstanding on the Effective Date) in an amount in respect
of
any fiscal quarter not to exceed $0.3125 per share of FCX’s common stock
(adjusted as applicable to eliminate the effect of stock dividends, stock
splits, reverse stock splits and other transactions in respect of such shares
of
common stock, and payable in respect of any shares of common stock received
pursuant to any such stock dividend, stock split, reverse stock split or other
transaction) (it being understood that Restricted Payments made in reliance
on
this clause (iii) in respect of shares of FCX’s common stock issued or sold
after the Effective Date (or in respect of shares received in stock dividends,
stock splits, reverse stock splits or other transactions in respect of such
shares of common stock) involving either (x) a receipt of cash proceeds that
increased the Restricted Uses Basket or (y) the receipt of assets in
consideration for such common stock shall constitute Restricted Uses and shall
reduce the Restricted Uses Basket (which reduction may be to less than zero)),
and
(iv) so
long as no Event
of Default shall have occurred and be continuing (or shall result from the
payment thereof), and subject to the Incurrence Test, FCX may make Restricted
Payments in cash in any amounts to the extent that, immediately after giving
effect thereto (and to any expenditure of cash required thereby), the Restricted
Uses would not be greater than the Restricted Uses Basket.
(b)
The
Borrower will
not, nor will it permit any Restricted Subsidiary to, make, directly or
indirectly, any voluntary payment or other voluntary distribution (whether
in
cash, securities (other than common stock of FCX) or other property) of or
in
respect of principal of or interest on any Indebtedness, or any voluntary
payment or other voluntary distribution (whether in cash, securities (other
than
common stock of FCX) or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of any Indebtedness, except:
(i) payment
of
Indebtedness created under the Loan Documents and payment of Ratable FCX
Obligations, Ratable Cyprus Obligations and Ratable PD Obligations;
(ii) payment
of
regularly scheduled interest and principal payments as and when due in respect
of any Indebtedness, other than payments in respect of Indebtedness prohibited
by the subordination provisions thereof;
(iii) refinancings
of
Indebtedness to the extent permitted by Section 6.01(a) (including, without
limitation, the refinancing of any Indebtedness, other than the Senior Notes,
with Indebtedness permitted under Section 6.01(a)(xi));
(iv) payment
of secured
Indebtedness that becomes due as a result of the sale or transfer of the
property or assets securing such Indebtedness;
(v) prepayments
of
Indebtedness owed to FCX by a Restricted Subsidiary or owed to a Restricted
Subsidiary by FCX or another Restricted Subsidiary, provided
that prepayments
of Indebtedness owed to a Restricted Subsidiary that is not a Loan Party shall
be permitted only to the extent no Event of Default has occurred and is
continuing at the time of such prepayment, except that such prepayments shall
be
permitted (A) to the extent the proceeds of such prepayments are applied to
pay
operating expenses or to make Capital Expenditures in the ordinary course of
business, and (B) to the extent the proceeds of such prepayments are applied
to
pay scheduled debt service of such Restricted Subsidiary so long as (1) no
Event
of Default under clause (a) or (b) of Article VII shall have occurred and be
continuing and (2) if any Event of Default other than under clause (a) or (b)
of
Article VII shall have occurred and be continuing (or shall result from the
payment thereof), so long as the Required Lenders shall not have given notice
to
FCX that such prepayments shall not be permitted to be paid during the pendency
of such Event of Default;
(vi) prepayments
of any
Project Financing to the extent made by the applicable Project Financing
Subsidiary with cash from the operations of such Project Financing
Subsidiary;
(vii) payments
of
Indebtedness (other than Indebtedness referred to in clause (viii) below) that
are not permitted by clauses (i)-(vi) of this Section 6.08(b) if and to the
extent that after giving effect to any such payments, the Restricted Uses would
not be greater than the Restricted Uses Basket; and
(viii) payment
of
Indebtedness created under the Restated Credit Agreement and the “Loan
Documents” thereunder, provided
that no
Indebtedness may be prepaid under the Restated Credit Agreement (A) at any
time
that any Loan or LC Disbursement is outstanding and (B) if there is outstanding
any Letter of Credit or Letters Credit in an aggregate outstanding amount
smaller than such prepayment, unless such Letter of Credit or Letters of Credit
are redesignated as Letters of Credit under the Restated Credit Agreement in
accordance with Section 2.05(a)(iii).
SECTION
6.09.
Transactions
with Affiliates. (a)
The
Borrower will
not, nor will it permit any Restricted Subsidiary to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire
any
property or assets from, or otherwise engage in any other transactions with,
any
of its Affiliates, except (i) transactions in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Borrower or such Restricted Subsidiary than could be obtained on an arm’s-length
basis from unrelated third parties; provided
that transactions
involving payments or transfers having a cumulative aggregate value of not
more
than $50,000,000 may be other than on an arm’s-length basis so long as the board
of directors of FCX has determined the transaction is in the best interests
of
the Borrower, (ii) transactions among the Borrower and its Restricted
Subsidiaries and (iii) any Restricted Payment permitted by
Section 6.08.
(b)
PTFI
will not make
any contribution or transfer of the Contract of Work or any rights thereunder
to
FCX, any Restricted Subsidiary or any other Affiliate.
SECTION
6.10.
Restrictive
Agreements.
The Borrower will
not, nor will it permit any Restricted Subsidiary to, directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Restricted Subsidiary to create, incur or permit to exist any
Lien to secure the Obligations, the Secured Obligations and the FI Obligations
(or any refinancing, restructuring or replacement thereof (other than with
subordinated Indebtedness)) upon any of its property or assets, or (b) the
ability of any Restricted Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Restricted Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Restricted Subsidiary; provided
that (i) the
foregoing shall not apply to restrictions and conditions (A) imposed by
applicable laws, rules or regulations, (B) under the Loan Documents, (C)
existing on the date hereof under the Restated Credit Agreement (or the “Loan
Documents” thereunder) or under the Senior Notes Documents (or to restrictions
and conditions contained in the documentation for Indebtedness permitted to
be
incurred hereunder at the time incurred that are no more restrictive than such
restrictions and conditions contained in the Senior Notes Documents) or (D)
identified on Schedule 6.10 (but shall apply to any amendment or modification
expanding the scope of any such restriction or condition), (ii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of any asset or a Restricted Subsidiary pending such sale;
provided
such restrictions
and conditions apply only to the asset or Restricted Subsidiary that is to
be
sold and such sale is permitted hereunder, (iii) the foregoing shall not apply
to restrictions and conditions imposed (A) by any agreement relating to any
Indebtedness permitted hereunder of any Restricted Subsidiary that is a Foreign
Subsidiary (other than a Loan Party) to the extent applicable to the assets
of
such Foreign Subsidiary or any of its Foreign Subsidiaries, (B) by any joint
venture, partnership or similar arrangement to which any Restricted Subsidiary
is a party to the extent applicable to such joint venture, partnership or
similar arrangement or direct or indirect interests therein, (C) by any
Indebtedness permitted under Section 6.01(a)(ii) and any refinancing thereof
(but shall in the case of this clause (C) apply to any amendment or modification
expanding the scope of any such restriction or condition) or (D) in connection
with any Receivables Facility to the extent determined by the Borrower to be
necessary or desirable in connection with the implementation thereof, (iv)
clause (a) of the foregoing shall not apply to (A) restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (B) restrictions or conditions imposed by
any
agreement relating to secured Indebtedness permitted by Section 6.01(a)(iv),
(v), (xi) or (xii), or refinancings thereof, if such restrictions or conditions
apply only to the fixed or capital assets the acquisition, construction or
improvement of which was financed with such Indebtedness (or the Indebtedness
refinanced with such Indebtedness), (C) customary provisions in leases
restricting the assignment thereof, and (D) restrictions imposed by Sections
7.2.5 and 7.3 of the Participation Agreement, and (v) clause (b) of the
foregoing shall not apply to restrictions on Restricted Payments by Project
Financing Subsidiaries (or any direct or indirect parent thereof that holds
no
significant assets other than direct or indirect ownership interests in such
Project Financing Subsidiary or assets related to, or ownership interests in
Subsidiaries that hold assets related to, the operations of such Project
Financing Subsidiary) imposed by the applicable Project Financing Documents
or
customary restrictions in the financing documents therefor.
SECTION
6.11.
Amendment
of
Material Documents. (a)
The
Borrower will
not, nor will it permit any Restricted Subsidiary to, amend, modify or waive
any
of its rights under, or terminate, suspend or enter into any agreement relating
to, (i) its certificate of incorporation, by-laws or other organizational
documents, (ii) the Senior Notes Documents or (iii) the Contract of Work,
in each case that could reasonably be expected to be adverse in any significant
respect to the interests or rights of the Lenders.
(b)
The
Borrower will
not, nor will it permit PTFI to, without the prior approval of the Required
Revolving Lenders, amend, modify or waive any of its rights under the Restated
Credit Agreement if the effect would be to reduce the available Revolving
Commitments (as defined in the Restated Credit Agreement).
SECTION
6.12.
Fiscal
Year.
The Borrower will
not change its fiscal year to end on any date other than
December 31.
SECTION
6.13.
Designation
of
Unrestricted Subsidiaries. (a)
The
Borrower may
designate a Restricted Subsidiary (other than PD or PTFI) as an Unrestricted
Subsidiary (a “Designation”)
only
if:
(i) such
Subsidiary
does not own any Equity Interests of any Restricted Subsidiary;
(ii) no
Event of Default
shall have occurred and be continuing at the time of or after giving effect
to
such Designation;
(iii) after
giving effect
to such Designation and any related Investment to be made in such designated
Subsidiary by the Borrower or any Restricted Subsidiary (which shall in any
event include an existing Investment in such Subsidiary deemed to be equal
to
the net book value of such Subsidiary at the time it is designated as an
Unrestricted Subsidiary), (A) the Incurrence Test would be satisfied and
(B) either (x) the Unrestricted Subsidiary Investment Amount shall not
exceed 1% of Consolidated Total Assets, or (y) if the Unrestricted Subsidiary
Investment Amount shall exceed 1% of Consolidated Total Assets, or to the extent
resulting in the Unrestricted Subsidiary Investment Amount exceeding 1% of
Consolidated Total Assets, such Designation and any related Investment shall
constitute a Restricted Use and the Restricted Uses shall not exceed the
Restricted Uses Basket; and
(iv) the
Borrower has
delivered to the Administrative Agent (x) written notice of such
Designation and (y) a certificate, dated the effective date of such
Designation, of a Financial Officer stating that no Event of Default has
occurred and is continuing, specifying whether such Designation is made in
reliance on clause (x) or (y) of clause (B) of paragraph (iii) above and
setting forth reasonably detailed calculations demonstrating compliance with
the
requirements of clauses (A) and (B) of paragraph (iii) above.
Upon
the
designation of any Restricted Subsidiary as an Unrestricted Subsidiary pursuant
to the terms hereof, provided
after giving
effect thereto no Default or Event of Default shall have occurred and be
continuing, the Guarantee of such Subsidiary shall automatically be released
without any consent of the Required Lenders; provided
further,
however,
that no such
Guarantee shall be released unless each Ratable Guarantee by such Subsidiary
shall be released upon the release of such Guarantee of the Secured
Obligations.
(b)
The
Borrower may
designate any Unrestricted Subsidiary as a Restricted Subsidiary under this
Agreement (an “RS
Designation”)
only
if:
(i) no
Event of Default
shall have occurred and be continuing at the time of or after giving effect
to
such RS Designation and, after giving effect thereto, the Incurrence Test would
be satisfied; and
(ii) all
Liens on assets
of such Unrestricted Subsidiary and all Indebtedness of such Unrestricted
Subsidiary outstanding immediately following the RS Designation would, if
initially incurred at such time, have been permitted to be incurred pursuant
to
Sections 6.01 and 6.02 without reliance on Section 6.01(a)(ii) or
Section 6.02(c) or (g).
Upon
any such RS
Designation with respect to an Unrestricted Subsidiary (i) the Borrower and
the Restricted Subsidiaries shall be deemed to have received a return of their
Investment in such Unrestricted Subsidiary equal to the lesser of (x) the amount
of the net book value of such Subsidiary immediately prior to such RS
Designation and (y) the fair market value (as reasonably determined by the
Borrower) of the net assets of such Subsidiary at the time of such RS
Designation and (ii) the Borrower and the Restricted Subsidiaries shall be
deemed to have a permanent Investment in an Unrestricted Subsidiary equal to
the
excess, if positive, of the amount referred to in clause (i)(x) above over
the amount referred to in clause (i)(y) above.
(c)
Neither
the
Borrower nor any Restricted Subsidiary shall at any time (x) provide a
Guarantee of any Indebtedness of any Unrestricted Subsidiary, (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any other
Indebtedness which provides that the holder thereof may (upon notice, lapse
of
time or both) declare a default thereon (or cause such Indebtedness or the
payment thereof to be accelerated, payable or subject to repurchase prior to
its
final scheduled maturity) upon the occurrence of a default with respect to
any
other Indebtedness that is Indebtedness of an Unrestricted Subsidiary, except
in
the case of clause (x) or (y) to the extent permitted under
Section 6.01 and Section 6.04 hereof. Except as provided in clause (b)
above, each Designation shall be irrevocable, and no Unrestricted Subsidiary
may
become a Restricted Subsidiary, be merged with or into the Borrower or a
Restricted Subsidiary or liquidate into or transfer substantially all its assets
to the Borrower or a Restricted Subsidiary.
SECTION
6.14.
Total
Leverage
Ratio.
At any time when
there is any outstanding Revolving Exposure (other than outstanding Letters
of
Credit that have been fully cash collateralized in accordance with Section
2.05(j)), the Borrower will not, without the approval of the Required Revolving
Lenders, permit the Total Leverage Ratio on the last day of any fiscal quarter
to exceed 5.0 to 1.0.
SECTION
6.15.
Total
Secured
Leverage Ratio.
At any time when
there is any outstanding Revolving Exposure (other than outstanding Letters
of
Credit that have been fully cash collateralized in accordance with Section
2.05(j)), the Borrower will not, without the approval of the Required Revolving
Lenders, permit the Total Secured Leverage Ratio on the last day of any fiscal
quarter to exceed 3.0 to 1.0.
SECTION
6.16.
Covenants
with
Respect to PTII.
FCX will not,
except with the prior written consent of the Required Lenders, cause or permit
PTII to:
(a) create,
incur,
assume or permit to exist any Indebtedness or Attributable Debt;
(b) issue
any Equity
Interests other than Equity Interests pledged to the Secured Parties as
represented by the Collateral Agent to secure the Secured Obligations and the
FI
Obligations pursuant to a pledge agreement satisfactory to the Collateral
Agent;
(c) create,
incur,
assume or permit to exist any Lien (other than nonconsensual Permitted
Encumbrances) on any property or asset now owned or hereafter acquired by it,
or
assign or sell any income or revenues or rights in respect of any thereof,
except Liens created under or specifically required by the Loan Documents
securing some or all of the Obligations;
(d) purchase,
hold,
make or acquire any Investment in any other Person, or purchase or otherwise
acquire any assets of any other Person, except Investments existing on the
Effective Date;
(e) sell,
transfer,
lease or otherwise dispose of any PTFI Shares other than in a Qualifying PTFI
Sale Transaction permitted hereby or a sale otherwise permitted under Section
6.05(c)(ii);
(f) conduct
any
business or operations other than acting as a holding company for Investments
owned by it on the Effective Date; or
(g) liquidate,
dissolve
or merge or consolidate with or into any other Person (other than
PTFI);
provided,
however,
that this
Section 6.16 shall cease to be applicable at such time, if any, as PTII
merges with and into PTFI.
ARTICLE
VII
Events
of
Default
If
any of the following events (“Events
of
Default”)
shall
occur:
(a) the
Borrower shall
fail to pay any principal of any Loan or any reimbursement obligation in respect
of any LC Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;
(b) the
Borrower shall
fail to pay any interest on any Loan or any fee or any other amount (other
than
an amount referred to in clause (a) of this Article) payable under this
Agreement or any other Loan Document, when and as the same shall become due
and
payable, and such failure shall continue unremedied for a period of three
Business Days;
(c) any
representation
or warranty made or deemed made by or on behalf of the Borrower or any
Restricted Subsidiary in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or
in
connection with any Loan Document or any amendment or modification thereof
or
waiver thereunder, shall prove to have been incorrect in any material respect
when made or deemed made;
(d) the
Borrower shall
fail to observe or perform any covenant, condition or agreement contained in
Section 5.02(a) or 5.04 (with respect to the existence of the Borrower) or
in Article VI; provided
that any breach of
a Financial Covenant shall not constitute an Event of Default in respect of
the
Term Loans unless and until the earlier of (i) the date that is 60 days after
the delivery of the financial statements under Section 5.01(a) or (b) in respect
of the financial period as of the end of which such Financial Covenant is
breached and (ii) the date on which the Administrative Agent or the Required
Revolving Lenders first exercises any remedy under this Article VII in respect
of such breach; and provided
further that any
Event of Default under a Financial Covenant may be waived, amended or otherwise
modified from time to time by the Required Revolving Lenders pursuant to Section
9.02;
(e) any
Loan Party
shall fail to observe or perform any covenant, condition or agreement contained
in any Loan Document (other than those specified in clause (a), (b) or
(d) of this Article), and such failure shall continue unremedied for a
period of 30 days after notice thereof from the Administrative Agent to the
Borrower (which notice will be given at the request of any Lender);
(f) (i)
an “Event of
Default” shall exist under the Restated Credit Agreement (other than such an
“Event of Default” under section 6.14 or 6.15 thereof which shall not constitute
an Event of Default in respect of the Term Loans unless and until the earlier of
(A) the date that is 60 days after the delivery of the financial statements
under Section 5.01(a) or (b) in respect of the financial period as of the end
of
which such section is breached and (B) the date on which the Administrative
Agent or the Required Lenders under the Restated Credit Agreement first exercise
any remedy under article VII of the Restated Credit Agreement in respect of
such
breach); (ii) default shall be made with respect to any Material Indebtedness
if
the effect of any such default shall be to accelerate, or to permit the holder
or obligee of any such Material Indebtedness (or any trustee on behalf of such
holder or obligee) to accelerate, the stated maturity of such Material
Indebtedness or, in the case of Hedging Agreements, require the payment of
any
net termination value in respect thereof or, in the case of Project Financings,
permit foreclosure upon, or require FCX or any Restricted Subsidiary to
repurchase the related Project Financing Assets; or (iii) any amount of
principal or interest of any Material Indebtedness or any payment under a
Hedging Agreement constituting Material Indebtedness, in each case regardless
of
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 Material Indebtedness);
(g) an
involuntary
proceeding shall be commenced or an involuntary petition shall be filed seeking
(i) liquidation, reorganization or other relief in respect of the Borrower,
any
Subsidiary Guarantor or any other Restricted Subsidiary that is a Significant
Subsidiary (each, a “Material
Company”)
or its debts, or
of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Material Company or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering
any
of the foregoing shall be entered;
(h)
any Material
Company shall (i) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under any Federal, state
or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter
in
effect, (ii) consent to the institution of, or fail to contest in a timely
and
appropriate manner, any proceeding or petition described in clause (g) of this
Article, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for any Material
Company or for a substantial part of its assets, (iv) file an answer admitting
the material allegations of a petition filed against it in any such proceeding,
or (v) make a general assignment for the benefit of creditors;
(i) any
Material
Company shall become unable, admit in writing its inability or fail generally
to
pay its debts as they become due;
(j) one
or more
judgments for the payment of money in an aggregate amount in excess of
$100,000,000 shall be rendered against the Borrower, any Restricted Subsidiary
or any combination thereof and the same shall remain undischarged for a period
of 45 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach
or
levy upon any assets of the Borrower or any Restricted Subsidiary to enforce
any
such judgment;
(k) an
ERISA Event
shall have occurred that, when taken together with all other ERISA Events that
have occurred, would reasonably be expected to result in a Material Adverse
Effect;
(l) any
Lien purported
to be created under any Security Document shall cease to be, or shall be
asserted by any Loan Party not to be, a valid and, to the extent contemplated
by
the applicable Security Document, perfected Lien on any material amount of
Collateral, with the priority required by the applicable Security Document,
except (i) as a result of the sale or other disposition of the applicable
asset in a transaction permitted under the Loan Documents or (ii) as a
result of the failure of the Collateral Agent to maintain possession of any
stock certificates, promissory notes or other instruments delivered to it under
any Security Document;
(m) any
Guarantee under
any Loan Document shall cease to be, or shall be asserted by any Loan Party
in
writing not to be, a valid and enforceable Guarantee;
(n)
any Governmental
Authority shall condemn, seize, nationalize, assume the management of, or
appropriate any material portion of the property, assets or revenues of the
Borrower or any Restricted Subsidiary (either with or without payment of
compensation);
(o) neither
the Full
Stock Pledge Condition nor the Additional Collateral Requirement shall be
satisfied on September 15, 2007; or
(p) a
Change in Control
shall occur;
then,
and in every
such event (other than an event with respect to the Borrower described in
clause (g) or (h) of this Article), and at any time thereafter during
the continuance of such event, the Administrative Agent may, and at the request
of the Required Lenders (or, in the case of any Event of Default arising from
a
breach of a Financial Covenant, at
the
request of the
Required Revolving Lenders and only with respect to the Revolving Commitments
and Revolving Exposures) shall, by notice to the Borrower, take any or all
of
the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared
to be
due and payable), and thereupon the principal of the Loans so declared to be
due
and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower and (iii) exercise any or
all the remedies then available under the Security Documents; and in case of
any
event with respect to the Borrower described in clause (g) or (h) of
this Article, the Commitments shall automatically terminate and the principal
of
the Loans then outstanding, together with accrued interest thereon and all
fees
and other obligations of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or other notice
of
any kind, all of which are hereby waived by the Borrower.
ARTICLE
VIII
The
Agents
Each
of the
Lenders, the Agents and the Issuing Banks hereby irrevocably appoints
(a) JPMCB as Administrative Agent under this Agreement and the other Loan
Documents, (b) JPMCB as Collateral Agent for the Lenders, the Agents and
the Issuing Banks under this Agreement and the other Loan Documents, and
(c) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated as the
Syndication Agent for the Lenders, the Agents and the Issuing Banks under this
Agreement and the other Loan Documents. Each Lender, each Agent and each Issuing
Bank confirms and agrees to be bound by the terms of the Loan Documents. Each
Lender, each Agent and each Issuing Bank authorizes the Agents to take such
actions on its behalf and to exercise such powers as are delegated to the
applicable Agent by the terms of the applicable Loan Documents, together with
such actions and powers as are reasonably incidental thereto. Neither the
Syndication Agent nor any Documentation Agent, in its capacity as such, shall
have any responsibilities or authority under this Agreement or the other Loan
Documents.
Each
of the Lenders
serving as the Administrative Agent, the Collateral Agent and the Syndication
Agent shall have the same rights and powers in its capacity as a Lender as
any
other Lender and may exercise the same as though it were not the applicable
Agent or Agent under the Restated Credit Agreement or the Loan Documents
thereunder, and each of such Lenders and its 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
hereunder or thereunder.
No
Agent shall have any duties or obligations except those expressly set forth
in
the applicable Loan Documents. Without limiting the generality of the foregoing,
(a) no Agent shall be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) no
Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required
to
exercise in writing as directed by the Required Lenders (or such other number
or
percentage of the Lenders or Secured Parties as shall be
necessary
under the
circumstances as provided in Section 9.02 or the applicable Loan Document),
and (c) except as expressly set forth in the Loan Documents, no Agent shall
have any duty to disclose, or shall be liable for the failure to disclose,
any
information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as such Agent or any of its
Affiliates in any capacity under the Loan Documents, the Restated Credit
Agreement or the Loan Documents thereunder. No Agent shall not be liable for
any
action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall
be
necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or wilful misconduct. No Agent shall be
deemed to have knowledge of any Default unless and until written notice thereof
is given to the Administrative Agent by the Borrower or a Lender, and no Agent
shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with
any Loan Document, (ii) the contents of any certificate, report or other
document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms
or
conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of any condition
set forth in Article IV or elsewhere in any Loan Document, other than to
confirm receipt of items expressly required to be delivered to such
Agent.
Without
limiting
the generality of the foregoing, the Administrative Agent and the Collateral
Agent are hereby expressly authorized to execute any and all documents
(including releases) with respect to the collateral under the Security Documents
and to carry out the rights of the secured parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and
the
Security Documents, including, specifically with respect to the Pledged PTFI
Shares and the Pledged PTII Shares, upon the occurrence of an Event of Default,
to exercise the rights of the Pledgors under the FCX Pledge Agreements as owners
of such shares in accordance with the terms of the FCX Pledge Agreements and
otherwise applicable law. In addition, each Lender, each Agent and each Issuing
Bank hereby irrevocably authorizes and directs the Administrative Agent and
the
Collateral Agent to enter, on behalf of each of them, into the Security
Documents and agrees to be bound by the terms of the Security Documents. Each
Lender, each Agent and each Issuing Bank hereby irrevocably authorizes and
directs the Administrative Agent and the Collateral Agent, as applicable, to
enter into amendments from time to time to the Security Documents or take any
other action for the purpose of naming as Secured Parties thereunder (i) Lenders
that become parties to this Agreement after the Effective Date and/or (ii)
Lender Affiliates that become counterparties to Hedging Agreements, the
obligations under which are secured by the Security Documents.
Each
Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon,
any
notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the
proper Person. Each Agent also may rely upon any statement made to it orally
or
by telephone and believed by it to be made by the proper Person, and shall
not
incur any liability for relying thereon. Each Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and
other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants
or
experts.
Each
Agent may
perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by the applicable Agent.
Each
Agent and any
such sub-agent may perform any and all its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions
of
the preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
No
Agent shall commence any litigation in the name of, or on behalf of, any Lender
without the prior consent of such Lender; provided,
however,
that
notwithstanding the foregoing, in the event that any Agent commences any
litigation at the direction of the Required Lenders, any Lender that shall
not
have consented thereto shall remain liable for its pro rata share of the costs
and expenses of such Agent pursuant to the provisions of this
Agreement.
The
Syndication
Agent and, subject to the appointment and acceptance of a successor as provided
in this paragraph, any other Agent may resign at any time by notifying the
Lenders and the Borrower. Upon any such resignation by the Administrative Agent
or the Collateral Agent, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor Administrative Agent
or
Collateral Agent (subject to the approval of the Required Lenders under the
Restated Credit Agreement), as the case may be. If no successor shall have
been
so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent or Collateral Agent, as the case may be, which shall be
a
bank with an office in New York, New York, or an Affiliate of any such bank.
Upon the acceptance of its appointment as Administrative Agent or Collateral
Agent, as the case may be, hereunder by a successor, such successor
Administrative Agent or Collateral Agent, as applicable, shall 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. The fees payable by the Borrower to a successor Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After any Agent’s resignation
hereunder, the provisions of this Article and Section 9.03 shall continue
in effect for the benefit of such retiring Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as an Agent.
Each
Lender
acknowledges that it has, independently and without reliance upon the Agents
or
any other Lender 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 Lender also acknowledges that it will, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
The
obligations of
the Administrative Agent, Collateral Agent and the Syndication Agent shall
be
separate and several and none of them shall be responsible or liable for the
acts or omissions of any other, except, to the extent that any such Agent serves
in more than one agency capacity, such Agent shall be responsible for the acts
and omissions relating to each such agency function.
Without
the prior
written consent of the Required Lenders but subject to Section 9.02(b), the
Administrative Agent and the Collateral Agent will not, except as contemplated
by this paragraph, consent to any modification, supplement or waiver of any
Security Document. Notwithstanding the foregoing, the Collateral Agent is
authorized and directed to enter into such amendments as it may deem appropriate
to the Third Amended and Restated FCX Pledge Agreement (PTFI Shares) in
connection with the satisfaction of the Full Stock Pledge Condition or the
Partial Stock Pledge Condition. Notwithstanding any other provision of this
Article VIII, the Administrative Agent and the Collateral Agent will, at the
request of FCX, release (or subordinate such interest) from the Security
Documents (and enter into an amendment to any applicable Security Document
and
execute such other instruments as may be necessary in connection therewith),
any
interest of the Administrative Agent or the Collateral Agent, as applicable,
upon receipt by the Administrative Agent of a certificate from a Financial
Officer of FCX specifying the asset to be released and the related transaction
and certifying that after giving effect thereto, no Event of Default shall
occur
or be continuing, specific assets (which may either be released from the Lien
of
the Security Documents or excluded from the after-acquired property clauses
of
the Security Documents) as required to be released to allow sales, transfers
or
other dispositions, secured financings, capital leases and sale leaseback
transactions and pledges of assets expressly permitted hereby. In addition,
upon
consummation of a Project Financing by a Project Financing Subsidiary, to the
extent releases are requested in a certificate from a Financial Officer of
FCX,
which certificate shall certify that after giving effect to such releases no
Event of Default shall occur or be continuing and that such releases are in
conformity with clause (D) of the Collateral and Guarantee Requirement, such
Project Financing Subsidiary and, if applicable, its parent shall automatically
be released from its Guarantee and the pledge of the Equity Interests in such
Project Financing Subsidiary shall be released. It is understood and agreed
that
releases in connection with this paragraph shall not require any further consent
of the Required Lenders.
By
acceptance of the benefits of the Security Documents, the holders of the Secured
Obligations (as defined in the Atlantic Copper Pledge Agreement referred to
below) hereby expressly and irrevocably appoint JPMCB as Collateral Agent under
the Atlantic Copper Pledge Agreement and such holders hereby expressly and
irrevocably authorize the Collateral Agent to accept and cancel, in their name
and on their behalf, a pledge (including its novations) over the shares
representing 65% of the share capital of Atlantic Copper S.A. (“Atlantic
Copper”),
a company
(sociedad
anónima)
incorporated and
existing under the laws of the Kingdom of Spain, having its registered office
at
Xxxxxxx Xxxxxxxxx Xxxxxxxxxx x/x, 00000, Xxxxxx, Xxxxx, and Tax Identification
Number (C.I.F.) A-79110482, as security for the Secured Obligations (as so
defined) (the “Pledge
of
Atlantic Copper Shares”),
and, in
particular, but not exclusively, (i) to execute one or more pledge agreements
(collectively, the “Atlantic
Copper
Pledge Agreement”),
as well as any
subsequent novations thereof, inter alia, over the shares of Atlantic Copper
owned by Freeport-McMoRan Spain Inc. representing, from time to time, 65% of
the
share capital of Atlantic Copper on the terms and conditions that the Collateral
Agent may deem appropriate; (ii) to appear before a Notary Public and execute,
on the terms the Collateral Agent deems appropriate, the granting of any
ratification, amendment, confirmation, supplement, novation or cancellation
of
the document or documents by virtue of which the Pledge of Atlantic Copper
Shares is created; (iii) to carry out whatever actions and legal proceedings
the
Collateral Agent may deem appropriate for the enforcement of the Pledge of
Atlantic Copper Shares in accordance with the terms of the applicable Loan
Documents; (iv) to carry out, as well, all related or complementary acts needed
in order to fully execute the mandate received, and in particular, grant
amendment documents and to do all other things, to enter into all other
agreements and to make all other statements necessary or useful in connection
with the above mentioned
performances;
and
(v) to make any payment of any reasonable expenses and fees, including legal
and
notarial fees.
ARTICLE
IX
Miscellaneous
SECTION
9.01.
Notices. (a)
Except
in the case
of notices and other communications expressly permitted to be given by telephone
(and subject to paragraph (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(i) if
to the Borrower,
to it at Freeport-McMoRan Copper & Gold Inc., Xxx X. Xxxxxxx Xxxxxx,
Xxxxxxx, XX 00000, Attention of Treasurer (Telecopy No. (000)
000-0000);
(ii) if
to the
Administrative Agent or the Collateral Agent, to JPMorgan Chase Bank, N.A.,
Loan
and Agency Services Group, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000,
Attention of Xx. Xxxxxx Xxxxxxx (Telecopy No. (000) 000-0000), with a copy
to
JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention
of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000);
(iii) if
to the Swingline
Lender, to JPMorgan Chase Bank, N.A., Loan and Agency Services Group, 0000
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention of Xx. Xxxxxx Xxxxxxx
(Telecopy No. (000) 000-0000), with a copy to the Administrative Agent as
provided under clause (ii) above;
(iv) if
to any Issuing
Bank, to it at the address most recently specified by it in a notice delivered
to the Administrative Agent and the Borrower, with a copy to the Administrative
Agent as provided under clause (ii) above; and
(v) if
to any other
Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
(b)
Notices
and other
communications to the Lenders hereunder may be delivered pursuant to procedures
approved by the Administrative Agent; provided
that the foregoing
shall not apply to notices pursuant to Article II unless otherwise agreed
by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communication pursuant to
procedures approved by it; provided
that approval of
such procedures may be limited to particular notices or
communications.
(c)
Any
party hereto
may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. 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.
SECTION
9.02.
Waivers;
Amendments. (a)
No
failure or delay
by any Agent, any Lender or any Issuing Bank in exercising any right or power
hereunder or under any other Loan Document 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 Agents,
the Lenders and the Issuing Banks hereunder and under the other Loan Documents
are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent
to
any departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for
the
purpose for which given. Without limiting the generality of the foregoing,
the
making of a Loan or the issuance, amendment, extension or renewal of a Letter
of
Credit shall not be construed as a waiver of any Default, regardless of whether
any Agent, any Lender or any Issuing Bank may have had notice or knowledge
of
such Default at the time.
(b)
Neither
this
Agreement nor any other Loan Document nor any provision hereof or thereof may
be
waived, amended or modified except, in the case of this Agreement, pursuant
to
an agreement or agreements in writing entered into by the Borrower and the
Required Lenders or, in the case of any other Loan Document, pursuant to an
agreement or agreements in writing entered into by the Administrative Agent
and
the Loan Party or Loan Parties that are parties thereto, in each case with
the
consent of the Required Lenders; provided
that no such
agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce or forgive the principal amount
of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby (provided
that only the
consent of the Required Lenders shall be necessary to amend the dates set forth
in the definition of “Collateral Shortfall Period”), (iii) postpone the
maturity of any Loan, or the date of any scheduled payment of the principal
amount of any Term Loan under Section 2.09, or the required date of
reimbursement of any LC Disbursement under Section 2.05, or any date for
the payment of any interest or fees payable hereunder, or reduce the amount
of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.17(b) or (c) in a manner that would alter
the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or
the
percentage set forth in the definition of “Required Lenders” or “Required
Revolving Lenders” or any other provision of any Loan Document specifying the
number or percentage of Lenders (or Lenders of any Class) required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each Lender (or each Lender
of such Class, as the case may be) (it being understood that, with the consent
of the Required Lenders or Required Revolving Lenders, as the case may be,
additional extensions of credit or revolving commitments pursuant to this
Agreement may be included in the determination of the Required Lenders or
Required Revolving Lenders, as the case may be, on substantially the same basis
as the Term Loans and Revolving Commitments on the date hereof),
(vi) release all or substantially all the Guarantors from their Guarantee
under the Loan Documents or limit the liability of all or substantially all
the
Guarantors in respect of such Guarantees, without the written consent of each
Lender, (vii) release all or substantially all the Collateral from the Liens
of
the Security Documents, without the written consent of each Lender, (viii)
change any provisions of any Loan Document in a manner that by its terms
adversely affects the rights in respect of Collateral or payments due to Lenders
holding Loans of any Class differently than those holding Loans of any other
Class, without the written consent of Lenders holding a majority in interest
of
the outstanding Loans and unused Commitments of each affected Class or (ix)
change the rights of the Tranche B Lenders to decline mandatory prepayments
as
provided in Section 2.10, without the
written
consent of
Tranche B Lenders holding a majority of the outstanding Tranche B Loans;
provided
further
that (A) no such
agreement shall amend, modify or otherwise affect the rights or duties of any
Agent, any Issuing Bank or the Swingline Lender without the prior written
consent of such Agent, such Issuing Bank or the Swingline Lender, as the case
may be; (B) any waiver, amendment or modification of this Agreement that by
its
terms affects the rights or duties under this Agreement of Lenders holding
Loans
or Commitments of a particular Class (but not the Lenders holding Loans or
Commitments of any other Class) may be effected by an agreement or agreements
in
writing entered into by the Borrower and the requisite percentage in interest
of
the affected Class of Lenders that would be required to consent thereto under
this Section if such Class of Lenders were the only Class of Lenders hereunder
at the time; (C) if the terms of any waiver, amendment or modification of any
Loan Document provide that any Class of Loans (together with all accrued
interest thereon and all accrued fees payable with respect to the Commitments
of
such Class) will be repaid or paid in full, and the Commitments of such Class
(if any) terminated, as a condition to the effectiveness of such waiver,
amendment or modification, then so long as the Loans of such Class (together
with such accrued interest and fees) are in fact repaid or paid and such
Commitments are in fact terminated, in each case prior to or substantially
simultaneously with the effectiveness of such amendment, then such Loans and
Commitments shall not be included in the determination of the Required Lenders
with respect to such amendment; and (D) no amendment, modification, waiver
of or
consent with respect to any of the terms and provisions (and related definitions
to the extent applicable to the Financial Covenants) of the Financial Covenants,
the provisos to paragraph (d) of Article VII or the parenthetical reference
to
the Financial Covenants in the then clause at the end of Article VII shall
be
effective without the written consent of the Required Revolving Lenders and,
in
the case of the Financial Covenants and the related definitions to the extent
applicable to the Financial Covenants, any such amendment, supplement,
modification or waiver shall be effective with the written consent of only
the
Required Revolving Lenders (or the Administrative Agent with the prior written
consent thereof), on the one hand, and the Borrower, on the other hand.
Notwithstanding the foregoing, any provision of this Agreement may be amended
by
an agreement in writing entered into by the Borrower, the Required Lenders
and
the Administrative Agent if (i) by the terms of such agreement any remaining
Commitment and/or Revolving Exposure of each Lender not consenting to the
amendment provided for therein shall terminate upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender
not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued
for
its account under this Agreement.
SECTION
9.03.
Expenses;
Indemnity; Damage Waiver. (a)
The
Borrower agrees
to pay (i) all reasonable out-of-pocket expenses incurred by each Agent and
its Affiliates, including the reasonable fees, charges and disbursements of
counsel for each Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by each
Issuing Bank in connection with the issuance, amendment, extension or renewal
of
any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by any Agent, any Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for any Agent,
any
Issuing Bank or any Lender, in connection with the enforcement or protection
of
its rights in connection with the Loan Documents, including its rights under
this Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such
out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b)
The
Borrower agrees
to indemnify each Agent, each Lender and each Issuing Bank, and each Related
Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”)
against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of
Credit or the use of the proceeds therefrom (including any refusal by any
Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, other than losses, claims, damages, liabilities and related costs
and expenses arising from a release of Hazardous Materials or Environmental
Liability (except releases of Hazardous Materials or Environmental Liabilities
actually caused by the Borrower or any of its Subsidiaries or any of their
respective tenants, contractors or agents) to the extent (and only to the
extent) first occurring and first existing after title to the relevant real
property or facility is vested in any Agent or Lender or other party after
the
completion of foreclosure proceedings or the granting of a deed-in-lieu of
foreclosure or similar transfer of title, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided
that such
indemnity shall not, as to any Indemnitee, 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 nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c)
To
the extent that
the Borrower fails to pay any amount required to be paid by it to any Agent
under paragraph (a) or (b) of this Section (but without affecting the
Borrower’s obligations thereunder), each Lender severally agrees to pay to the
applicable Agent such Lender’s pro rata share (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided
that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against such Agent
in
its capacity as such. For purposes of the immediately preceding sentence, a
Lender’s “pro rata share” shall be determined based upon its share of the sum of
the total Revolving Exposures, outstanding Term Loans and unused Revolving
Commitments
at the
time. To the extent that the Borrower fails to pay any amount required to be
paid by it to any Issuing Bank under paragraph (a) or (b) of this
Section (but without affecting the Borrower’s obligations thereunder), each
Revolving Lender severally agrees to pay to the applicable Issuing Bank such
Revolving Lender’s pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided
that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against such Issuing
Bank in its capacity as such. For purposes of the immediately preceding
sentence, a Revolving Lender’s “pro rata share” shall be determined based upon
its share of the sum of the total Revolving Exposures and unused Revolving
Commitments at the time. The obligations of the Lenders under this paragraph
(c)
are subject to the last sentence of Section 2.02(a) (which shall apply
mutatis mutandis
to the Lenders’
obligations under this paragraph (c)). If any action, suit or proceeding arising
from any of the foregoing is brought against any Lender, any Agent, any Issuing
Bank or other Person indemnified or intended to be indemnified pursuant to
this
Section 9.03, FCX, 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 FCX (which
counsel shall be satisfactory to such Lender, such Agent, such Issuing Bank
or
other Person indemnified or intended to be indemnified). If FCX shall fail
to do
any act or thing which it has covenanted to do hereunder or any representation
or warranty on the part of FCX contained in this Agreement shall be breached,
any Lender, any Issuing Bank or any Agent may (but shall not be obligated to)
do
the same or cause it to be done or remedy any such breach, and may expend its
funds for such purpose. Any and all amounts so expended by any Lender, any
Issuing Bank or any Agent shall be repayable to it by FCX immediately upon
such
Person’s demand therefor.
(d)
To
the extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the Transactions, any Loan
or Letter of Credit or the use of the proceeds thereof.
(e)
All
amounts due
under this Section shall be payable not later than 10 days after written demand
therefor.
SECTION
9.04.
Successors
and
Assigns. (a)
The
provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
any Affiliate of any Issuing Bank that issues any Letter of Credit), except
that
(i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and
any
attempted assignment or transfer by the Borrower without such consent shall
be
null and void) and (ii) no Lender may assign or otherwise transfer its rights
or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of
this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Agents, the Issuing Banks and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b)
(i)
Subject to the
conditions set forth in paragraph (b)(ii) below, any Lender may assign to one
or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment or LC Exposure and
the
Loans at the time owing to it) with the prior consent (such consent not to
be
unreasonably withheld or delayed, it being understood that the Borrower may
withhold its consent to an assignment to a Lender that would, as of the
effective date of such assignment, be entitled to claim compensation under
Section 2.14 (other than paragraph (b) thereof) which the assignor Lender would
not be entitled to claim as of that date) of:
(A)
in the case of
assignments of Revolving Commitments or Revolving Exposures, the Borrower,
the
Swingline Lender and each Principal Issuing Bank;
provided
that no consent of
the Borrower shall be required for an assignment to a Revolving Lender or to
an
Affiliate of a Revolving Lender having credit ratings equal to or better than
the credit ratings of such Revolving Lender, or, if an Event of Default under
clause (a), (b), (g) or (h) of Article VII has occurred and is
continuing, any other assignee; and
(B)
the
Administrative Agent; provided
that no consent of
the Administrative Agent shall be required for an assignment of a Term Loan
or
Term Commitment to an assignee that is a Lender, an Affiliate of a Lender or
an
Approved Fund.
(ii)
Assignments
shall be subject to the following additional conditions:
(A)
except in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund, or an assignment of the entire remaining amount of the assigning Lender’s
Commitment or Loans of any Class, the amount of the Commitment or Loans of
the
assigning Lender subject to each such assignment (determined as of the date
the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 or, in the case of
a
Term Loan, $1,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent; provided
that no such
consent of the Borrower shall be required if an Event of Default under
clause (a), (b), (g) or (h) of Article VII has occurred and is
continuing; and provided further
that simultaneous
assignments in respect of a Lender and its Approved Funds shall be aggregated
for purposes of such requirement;
(B)
each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement, provided
that this clause
(B) shall not be construed to prohibit assignment of a proportionate part of
all
the assigning Lender’s rights and obligations in respect of one Class of
Commitments or Loans;
(C)
the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of
$3,500, payable by either the assignee or the assignor (provided
that only one such
fee shall be payable in respect of simultaneous assignments by a Lender and
its
Approved Funds); and
(D)
the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire and any tax forms required by Section
2.16(f).
For
purposes of
this Section 9.04(b), the terms “Approved Fund” and “CLO” have the following
meanings:
“Approved
Fund”
means
(a) a CLO
and (b) with respect to any Lender that is a fund that invests in bank loans
and
similar extensions of credit, any other fund that invests in bank loans and
similar extensions of credit and is managed by the same investment advisor
as
such Lender or by an Affiliate of such investment advisor.
“CLO”
means
an entity
(whether a corporation, partnership, trust or otherwise) that is engaged in
making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course and is administered or managed
by a
Lender or an Affiliate of such Lender.
(iii)
Subject to
acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights
and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and
Assumption, be released from its obligations under this Agreement (and, in
the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be
a
party hereto but shall continue to be entitled to the benefits of
Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this
Section 9.04 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv)
The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall
maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of
the Lenders, and the Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Lender pursuant to the terms hereof from time
to
time (the “Register”).
The entries in
the Register shall be conclusive, and the Borrower, the Agents, the Issuing
Banks and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes
of
this Agreement, notwithstanding notice to the contrary. The Register shall
be
available for inspection by the Borrower, any Agent, any Issuing Bank and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(v)
Upon its
receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded
in
the Register as provided in this paragraph.
(vi)
At the request
of the Borrower, the Administrative Agent or the assignee under an Assignment
and Assumption, the Borrower, each applicable Agent and such assignee shall
enter into any amendments to the Security Documents or take any other actions
for the purpose of naming such assignee as a Secured Party
thereunder.
(c)
(i)
Any Lender may,
without the consent of, or notice to, the Borrower, the Administrative Agent,
the Issuing Banks or the Swingline Lender, sell participations to one or more
banks or other entities (a “Participant”)
in all or a
portion of such Lender’s rights and obligations under this Agreement (including
all or a portion of its Commitment or LC Exposure and the Loans owing to it);
provided
that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (C) the Borrower, the Agents, the Issuing
Banks and the other Lenders shall continue to deal solely and directly with
such
Lender in connection with such Lender’s rights and obligations under this
Agreement and (D) such Lender will continue to give prompt attention to and
process (including, if required, through discussions with Participants) requests
for waivers or amendments hereunder. Any agreement or
instrument
pursuant
to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce the Loan Documents and to approve any
amendment, modification or waiver of any provision of the Loan Documents;
provided
that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of
Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 9.08 as though it were a Lender, provided
such Participant
agrees to be subject to Section 2.17(c) as though it were a
Lender.
(ii)
A Participant
shall not be entitled to receive any greater payment under Section 2.14
(other than paragraph (b) thereof) or 2.16 than the applicable Lender would
have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of
Section 2.16 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower,
to comply with Section 2.16(f) as though it were a Lender.
(d)
Any
Lender may,
without the consent of the Borrower or the Administrative Agent, at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest;
provided
that no such
pledge or assignment of a security interest shall release a Lender from any
of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
SECTION
9.05.
Survival.
All covenants,
agreements, representations and warranties made by the Loan Parties in the
Loan
Documents and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of
any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that any
Agent, any Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as
the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall
survive and remain in full force and effect regardless of the consummation
of
the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Commitments or the termination
of this Agreement or any provision hereof.
SECTION
9.06.
Counterparts;
Integration; Effectiveness.
This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when
taken together shall constitute a single contract. This Agreement, the other
Loan Documents and any separate letter agreements with respect to fees payable
to any Agent constitute
the
entire contract
among the parties relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or
electronic transmission shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION
9.07.
Severability.
Any provision of
this Agreement held to be invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
SECTION
9.08.
Right
of
Setoff.
If an Event of
Default shall have occurred and be continuing, each Lender, each Issuing Bank
and each of its Affiliates 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, in whatever
currency) at any time held and other obligations at any time owing (although
such obligations may be unmatured) by such Lender or Issuing Bank or Affiliate
to or for the credit or the account of the Borrower against any of and all
the
obligations then due of the Borrower now or hereafter existing under this
Agreement. The applicable Lender or Issuing Bank shall notify the Borrower
and
the Administrative Agent of such setoff and application, provided
that any failure
to give or any delay in giving such notice shall not affect the validity of
any
such setoff and application under this Section. The rights of each Lender,
each
Issuing Bank and its Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender, Issuing
Bank and Affiliates may have.
SECTION
9.09.
Governing
Law;
Jurisdiction; Consent to Service of Process; Sovereign Immunity. (a)
This
Agreement
shall be construed in accordance with and governed by the law of the State
of
New York.
(b)
The
Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action
or
proceeding arising out of or relating to any Loan Document, 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 or any other
Loan
Document shall affect any right that any Agent, any Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against the Borrower or its properties in the courts
of any jurisdiction.
(c)
The
Borrower 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 any other Loan Document in any court referred to in
paragraph (b) of this Section. 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.
(d)
Each
party to this
Agreement irrevocably consents to service of process in the manner provided
for
notices in Section 9.01. Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION
9.10.
WAIVER
OF JURY
TRIAL.
EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR
ANY OTHER THEORY). 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 BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION
9.11.
Headings.
Article and
Section headings and the Table of Contents used herein are for convenience
of
reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION
9.12.
Confidentiality.
Each of the
Agents, the Issuing Banks and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates’ directors, trustees, officers, employees and
agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed
of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or
any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any actual or prospective assignee of or Participant in any
of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower or any other Loan Party and its obligations,
(g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to any Agent, any Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, “Information”
means
all
information received from or on behalf of the Borrower relating to the Borrower
or its business, other than any such information that is available
to
any Agent, any
Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
the
Borrower. Any Person required to maintain the confidentiality of Information
as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord
to
its own confidential information.
SECTION
9.13.
Interest
Rate
Limitation.
Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable
to
any Loan or participation in any LC Disbursement, together with all fees,
charges and other amounts which are treated as interest on such Loan or LC
Disbursement or participation therein under applicable law (collectively the
“Charges”),
shall exceed
the maximum lawful rate (the “Maximum
Rate”)
which may be
contracted for, charged, taken, received or reserved by the Lender holding
such
Loan or LC Disbursement or participation therein in accordance with applicable
law, the rate of interest payable in respect of such Loan or LC Disbursement
or
participation therein hereunder, together with all Charges payable in respect
thereof, 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 or
LC
Disbursement or participation therein but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or LC Disbursements or
participations therein 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 Lender.
SECTION
9.14.
Judgment
Currency.
The specification
of payment in dollars and in New York City, New York, with respect to amounts
payable to any Lender (or permitted assignee or Participant), any Agent or
any
Issuing Bank hereunder and under the other Loan Documents is of the essence,
and
dollars shall be the currency of account in all events. The payment obligations
of the Borrower under this Agreement or any other Loan Document shall not be
discharged by an amount paid by the Borrower in another currency or in another
place, whether pursuant to a judgment or otherwise, to the extent that the
amount so paid on conversion to dollars and transfer to New York City under
normal banking procedures does not yield the amount of dollars in New York
City
due hereunder. If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in dollars into another currency (the
“second
currency”),
the rate of
exchange which shall be applied shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase dollars with the
second currency on the Business Day next preceding that on which such judgment
is rendered. The obligation of the Borrower in respect of any such sum due
from
the Borrower to any Agent, any Issuing Bank or any Lender (or permitted assignee
or Participant) hereunder or under any other Loan Document (an “entitled
person”)
shall,
notwithstanding the rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that on the Business Day following
receipt by such entitled person of any sum adjudged to be due hereunder or
under
any other Loan Document in the second currency such entitled person may in
accordance with normal banking procedures purchase in the free market and
transfer to New York City dollars with the amount of the second currency so
adjudged to be due; and the Borrower hereby agrees, as a separate obligation
and
notwithstanding any such judgment, to indemnify such entitled person against,
and to pay such entitled person on demand, in dollars in New York City, the
difference between the sum originally due to such entitled person from the
Borrower in dollars and the amount of dollars so purchased and
transferred.
SECTION
9.15.
[intentionally
omitted]
SECTION
9.16.
Patriot
Act.
Each Lender and
the Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the Patriot Act,
it
is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent,
as
applicable, to identify the Borrower in accordance with the Patriot Act. The
Borrower agrees to provide the Lenders, upon request, with all documentation
and
other information required from time to time to be obtained by the Lenders
pursuant to applicable “know your customer” and anti-money laundering rules and
regulations, including the Patriot
Act.
SECTION
9.17.
No
Fiduciary
Relationship.
The Borrower, on
behalf of itself and the Subsidiaries, agrees that in connection with all
aspects of the transactions contemplated hereby and any communications in
connection therewith, the Borrower, the Subsidiaries and their Affiliates,
on
the one hand, and the Agents, the Lenders, the Issuing Banks and their
Affiliates, on the other hand, will have a business relationship that does
not
create, by implication or otherwise, any fiduciary duty on the part of the
Agents, the Lenders, the Issuing Banks or their Affiliates, and no such duty
will be deemed to have arisen in connection with any such transactions or
communications.
SECTION
9.18.
Release
of Liens
and Guarantees; Rejurisdictioning of PTFI. (a)
A
Subsidiary
Guarantor shall automatically be released from its obligations under the Loan
Documents and all security interests in the Collateral of such Subsidiary
Guarantor, and in the Equity Interests in such Subsidiary Guarantor, shall
be
automatically released upon the consummation of any transaction permitted by
this Agreement as a result of which such Subsidiary Guarantor ceases to be
a
Subsidiary; provided
that, if so
required by this Agreement, the Required Lenders (or such greater number of
Lenders as may be required under Section 9.02) shall have consented to such
transaction and the terms of such consent did not provide otherwise. Upon any
sale or other transfer by any Subsidiary Guarantor (other than to FCX or any
other Subsidiary) of any Collateral that is permitted under this Agreement,
or
upon the effectiveness of any written consent to the release of the security
interest granted under any Loan Document in any Collateral pursuant to Section
9.02 of this Agreement, the security interest in such Collateral shall be
automatically released. In connection with any termination or release pursuant
to this Section, the Collateral Agent shall promptly execute and deliver to
any
Subsidiary Guarantor, at such Subsidiary Guarantor’s expense, all documents that
such Subsidiary Guarantor shall reasonably request to evidence such termination
or release.
(b)
Subject
to
paragraph (e) below, at any time following the Investment Grade Date when there
is no outstanding Tranche B Term Loan, upon written notice from the Borrower
and
at the Borrower’s expense, the Collateral Agent shall terminate and release all
the Collateral under the Security Documents (but not, unless specifically
requested by the Borrower in such notice, any Collateral under the FI Security
Documents) and the Collateral Agent shall promptly execute and deliver all
documents that the Borrower shall reasonably request to evidence such
termination or release.
(c)
Notwithstanding
any
provision of any Loan Document to the contrary, at any time when either (i)
the
Full Stock Pledge Condition is satisfied or (ii) the Additional Collateral
Requirement is satisfied, PTFI may elect to effect a transaction in which it
will cease to be domesticated under the laws of Delaware as a corporation and
shall become solely a limited liability company organized under the laws of
the
Republic of Indonesia.
(d)
Any
execution and
delivery of documents pursuant to this Section shall be without recourse to
or
warranty by the Collateral Agent.
(e)
Notwithstanding
any
provision to the contrary herein or in any other Loan Document, no Guarantee
shall be released unless each Ratable Guarantee by the applicable Loan Party
shall be released upon the release of such Loan Party’s Guarantee of the Secured
Obligations.
SECTION
9.19.
Non-Public
Information. (a)
Each
Lender
acknowledges that all information furnished to it pursuant to this Agreement
from the Borrower or on its behalf and relating to the Borrower, the
Subsidiaries or its or their respective businesses may include material
non-public information concerning the Borrower and the Subsidiaries or its
or
their securities, and confirms that it has developed compliance procedures
regarding the use of material non-public information and that it will handle
such material non-public information in accordance with the procedures and
applicable law, including Federal and state securities laws.
(b)
All
such
information, including requests for waivers and amendments, furnished by the
Borrower or the Administrative Agent pursuant to, or in the course of
administering, this Agreement will be syndicate-level information, which may
contain material non-public information about the Borrower and the Subsidiaries
and its and their securities. Accordingly, each Lender represents to the
Borrower and the Administrative Agent that it has identified in its
Administrative Questionnaire a credit contact who may receive information that
may contain material non-public information in accordance with its compliance
procedures and applicable law, including Federal and state securities
laws.
SECTION
9.20.
Parallel
Debt.
By execution of
this Agreement, the Lenders and the Issuing Banks acknowledge the provisions
of
Section 2 of the Third Amended and Restated FCX/ISI Pledge Agreement (PTII
Shares), and hereby authorize the Administrative Agent and the Collateral Agent,
as applicable, to accept such provisions on their behalf.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
|
FREEPORT-MCMORAN
COPPER & GOLD INC.,
|
||
|
by
|
||
|
Name:
Xxxxxxxx X. Xxxxx
|
||
|
Title:
Senior
Vice President, Chief Financial Officer and Treasurer
|
||
|
JPMORGAN
CHASE BANK, N.A., individually
and as Administrative Agent, Issuing Bank and Collateral
Agent,
|
||
|
by
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXXXX
LYNCH, PIERCE, XXXXXX
&
XXXXX
INCORPORATED, as
Syndication Agent
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXXXX
XXXXX
CAPITAL CORPORATION
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
HSBC
BANK
USA, NATIONAL ASSOCIATION
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
SCOTIABANC,
INC.
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
THE
BANK OF
NOVA SCOTIA
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
UBS
LOAN
FINANCE LLC
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
AUSTRALIA
AND
NEW ZEALAND BANKING GROUP LIMITED
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
BNP
PARIBAS
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD., NY BRANCH
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
CALYON
NEW
YORK BRANCH
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
BAYERISCHE
HYPO-UND VEREINSBANK AG, NEW YORK BRANCH
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
ING
CAPITAL
LLC
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
MIZUHO
CORPORATION BANK, LTD.
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
NATIXIS
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
ROYAL
BANK OF
CANADA
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
THE
ROYAL
BANK OF SCOTLAND PLC
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
SOCIETE
GENERALE
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
STANDARD
CHARTERED BANK
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
SUMITOMO
MITSUI BANKING CORPORATION
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXXX
XX,
XXXXXXX BRANCH
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
BANCO
SANTANDER CENTRAL HISPANO, S.A. NEW YORK BRANCH
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
BANK
OF
AMERICA, N.A.
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
UNITED
OVERSEAS BANK LIMITED, NEW YORK AGENCY
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
DBS
BANK
LTD., LOS ANGELES AGENCY
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
THE
NORTHERN
TRUST COMPANY
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXX
FARGO
BANK, N.A.
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
BAYERISCHE
LANDESBANK, NEW YORK BRANCH
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXXXX
XXXXX
BANK, FSB
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
BANCO
ESPIRITO SANTO, S.A.
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
XXX
XXX
COMMERCIAL BANK, LTD. NEW YORK AGENCY
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXX
XXX
COMMERCIAL BANK, LTD., NEW YORK BRANCH
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
|
TAIPEI
FUBON
COMMERCIAL BANK, NEW YORK AGENCY
|
||
|
by
/s/
|
||
|
Name:
|
||
|
Title:
|
||
