AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 19, 2007, which amends and restates the AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 25, 2006, which amended and restated the AMENDED AND RESTATED CREDIT AGREEMENT dated as of September...
Exhibit
10.2
EXECUTION
VERSION
AMENDED
AND RESTATED CREDIT AGREEMENT
dated
as
of
March
19,
2007,
which
amends and restates the
AMENDED
AND RESTATED CREDIT AGREEMENT
dated
as
of July 25, 2006,
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
Originally
dated as of October 27, 1989
Amended
and restated as of June 1, 1993
and
the
Originally
dated as of June 30, 1995,
among
FREEPORT-MCMORAN
COPPER & GOLD INC.,
PT
FREEPORT INDONESIA,
The
Lenders Party Hereto,
The
Issuing Banks Party Hereto,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent, Security Agent, JAA Security 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,
and
U.S.
BANK
NATIONAL ASSOCIATION,
as
FI
Trustee
___________________________
X.X.
XXXXXX SECURITIES INC.
|
XXXXXXX
LYNCH, PIERCE, XXXXXX
&
XXXXX INCORPORATED
|
||
as
Joint Lead Arrangers and Joint Bookrunners
|
TABLE
OF
CONTENTS
Page
ARCLE
I
Definitions
SECTION
1.01.
|
Defined
Terms
|
1
|
SECTION
1.02.
|
Classification
of Loans and Borrowings
|
47
|
SECTION
1.03.
|
Terms
Generally
|
47
|
SECTION
1.04.
|
Accounting
Terms; GAAP
|
48
|
ARTICLE
II
The
Credits
SECTION
2.01.
|
Revolving
Commitments
|
48
|
SECTION
2.02.
|
Loans
and Borrowings
|
48
|
SECTION
2.03.
|
Requests
for Borrowings
|
49
|
SECTION
2.04.
|
Funding
of Borrowings
|
50
|
SECTION
2.05.
|
Letters
of Credit
|
50
|
SECTION
2.06.
|
Interest
Elections
|
55
|
SECTION
2.07.
|
Termination
and Reduction of Commitments
|
57
|
SECTION
2.08.
|
Repayment
of Loans; Evidence of Debt
|
57
|
SECTION
2.09.
|
[intentionally
omitted]
|
58
|
SECTION
2.10.
|
Prepayment
of Loans
|
58
|
SECTION
2.11.
|
Fees
|
59
|
SECTION
2.12.
|
Interest
|
60
|
SECTION
2.13.
|
Alternate
Rate of Interest
|
60
|
SECTION
2.14.
|
Increased
Costs
|
61
|
SECTION
2.15.
|
Break
Funding Payments
|
62
|
SECTION
2.16.
|
Taxes
|
63
|
SECTION
2.17.
|
Payments
Generally; Pro Rata Treatment; Sharing of Set-offs
|
66
|
SECTION
2.18.
|
Mitigation
Obligations; Replacement of Lenders
|
68
|
SECTION
2.19.
|
Swingline
Loans
|
69
|
ARTICLE
III
Representations
and Warranties
SECTION
3.01.
|
Organization;
Powers
|
70
|
SECTION
3.02.
|
Authorization;
Enforceability
|
70
|
SECTION
3.03.
|
Governmental
Approvals; No Conflicts
|
71
|
SECTION
3.04.
|
Financial
Condition; No Material Adverse Change
|
71
|
SECTION
3.05.
|
Properties
|
72
|
SECTION
3.06.
|
Litigation
and Environmental Matters
|
72
|
SECTION
3.07.
|
Compliance
with Laws and Agreements
|
73
|
SECTION
3.08.
|
Investment
Company Status
|
73
|
SECTION
3.09.
|
Taxes
|
73
|
SECTION
3.10.
|
ERISA
|
73
|
SECTION
3.11.
|
Disclosure
|
73
|
SECTION
3.12.
|
Subsidiaries
|
73
|
SECTION
3.13.
|
Insurance
|
74
|
SECTION
3.14.
|
Labor
Matters
|
74
|
SECTION
3.15.
|
Security
Documents
|
74
|
SECTION
3.16.
|
Federal
Reserve Regulations
|
76
|
SECTION
3.17.
|
Solvency
|
76
|
SECTION
3.18.
|
Senior
Indebtedness
|
76
|
ARTICLE
IV
Conditions
SECTION
4.01.
|
Effective
Date
|
76
|
SECTION
4.02.
|
Each
Credit Event
|
80
|
ARTICLE
V
Affirmative
Covenants
SECTION
5.01.
|
Financial
Statements and Other Information
|
80
|
SECTION
5.02.
|
Notices
of Material Events
|
82
|
SECTION
5.03.
|
Information
Regarding Collateral
|
83
|
SECTION
5.04.
|
Existence;
Conduct of Business
|
83
|
SECTION
5.05.
|
Payment
of Obligations
|
83
|
SECTION
5.06.
|
Maintenance
of Properties
|
83
|
SECTION
5.07.
|
Insurance
|
83
|
SECTION
5.08.
|
Casualty
and Condemnation
|
84
|
SECTION
5.09.
|
Books
and Records; Inspection and Audit Rights
|
84
|
SECTION
5.10.
|
Compliance
with Laws; Environmental Reports
|
84
|
SECTION
5.11.
|
Use
of Proceeds and Letters of Credit
|
85
|
SECTION
5.12.
|
Additional
Subsidiaries
|
86
|
SECTION
5.13.
|
Further
Assurances
|
86
|
SECTION
5.14.
|
Source
of Interest
|
87
|
ARTICLE
VI
Negative
Covenants
SECTION
6.01.
|
Indebtedness;
Certain Equity Securities
|
87
|
SECTION
6.02.
|
Liens
|
89
|
SECTION
6.03.
|
Fundamental
Changes
|
91
|
SECTION
6.04.
|
Investments
in Unrestricted Subsidiaries
|
93
|
SECTION
6.05.
|
Asset
Sales
|
93
|
SECTION
6.06.
|
Sale
and Leaseback Transactions
|
96
|
SECTION
6.07.
|
Hedging
Agreements
|
96
|
SECTION
6.08.
|
Restricted
Payments; Certain Payments of Indebtedness
|
96
|
SECTION
6.09.
|
Transactions
with Affiliates
|
98
|
SECTION
6.10.
|
Restrictive
Agreements
|
99
|
SECTION
6.11.
|
Amendment
of Material Documents
|
99
|
SECTION
6.12.
|
Fiscal
Year
|
100
|
SECTION
6.13.
|
Designation
of Unrestricted Subsidiaries
|
100
|
SECTION
6.14.
|
Total
Leverage Ratio
|
101
|
SECTION
6.15.
|
Total
Secured Leverage Ratio
|
101
|
SECTION
6.16.
|
Covenants
with Respect to PTII
|
101
|
2
SECTION
6.17.
|
Covenants
Relating to the RTZ Transactions
|
102
|
ARTICLE
VII
Events
of
Default
ARTICLE
VIII
The
Agents
and the FI Trustee
ARTICLE
IX
Miscellaneous
SECTION
9.01.
|
Notices
|
110
|
SECTION
9.02.
|
Waivers;
Amendments
|
111
|
SECTION
9.03.
|
Expenses;
Indemnity; Damage Waiver
|
113
|
SECTION
9.04.
|
Successors
and Assigns
|
114
|
SECTION
9.05.
|
Survival
|
117
|
SECTION
9.06.
|
Counterparts;
Integration; Effectiveness
|
118
|
SECTION
9.07.
|
Severability
|
118
|
SECTION
9.08.
|
Right
of Setoff
|
118
|
SECTION
9.09.
|
Governing
Law; Jurisdiction; Consent to Service of Process; Sovereign
Immunity
|
118
|
SECTION
9.10.
|
WAIVER
OF JURY TRIAL
|
119
|
SECTION
9.11.
|
Headings
|
119
|
SECTION
9.12.
|
Confidentiality
|
119
|
SECTION
9.13.
|
Interest
Rate Limitation
|
120
|
SECTION
9.14.
|
Judgment
Currency
|
120
|
SECTION
9.15.
|
RTZ
Transactions
|
121
|
SECTION
9.16.
|
Patriot
Act
|
121
|
SECTION
9.17.
|
No
Fiduciary Relationship
|
122
|
SECTION
9.18.
|
Release
of Liens and Guarantees; Rejurisdictioning of PTFI
|
122
|
SECTION
9.19.
|
Non-Public
Information
|
123
|
SECTION
9.20.
|
Parallel
Debt
|
123
|
SECTION
9.21.
|
Joint
and Several Obligations
|
123
|
SECTION
9.22.
|
Agreements
under the Existing Credit Agreement
|
123
|
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
|
3
Schedule
3.13 —
|
Insurance
|
Schedule
5.10A —
|
ICMM
Principles
|
Schedule
5.10B —
|
ICMM
Commitments with Respect to World Heritage Properties
|
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 —
|
Form
of Indonesian Guarantee Agreement
|
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
|
4
AMENDED
AND RESTATED CREDIT AGREEMENT dated as of March 19, 2007 (this “Agreement”),
which
amends and restates the AMENDED AND RESTATED CREDIT AGREEMENT dated as of July
25, 2006, 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, among FREEPORT-MCMORAN COPPER & GOLD INC., a
Delaware corporation, 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, U.S. BANK NATIONAL ASSOCIATION, a national
banking association (for purposes of Article VIII only), as trustee for the
Lenders and certain other lenders under the FI Trust Agreement, the Lenders
party hereto, the Issuing Banks party hereto, and JPMORGAN CHASE BANK, N.A.,
(“JPMCB”),
as
Administrative Agent, Security Agent, JAA Security Agent and Collateral Agent,
and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED (“Merrill”),
as
Syndication Agent.
The
Borrowers have requested that the Lenders agree to amend and restate the
Existing Credit Agreement (such term and each other capitalized term used but
not otherwise defined herein having the meaning assigned to it in Article I)
in
order to continue the credit facilities provided for therein and to extend
credit in the form of Revolving Loans, Swingline Loans and 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 $500,000,000
at any time. The proceeds of Revolving Loans may be used on the Effective Date
to (A) pay a portion of the cash portion of the Merger Consideration and (B)
pay
a portion of the Transaction Costs. Letters of Credit and the proceeds of other
Revolving Loans and Swingline Loans drawn on and after the Effective Date will
be used for working capital and other general corporate purposes of each of
the
Borrowers and their Subsidiaries. The Lenders are willing to continue such
credit facilities, and to amend and restate the Existing Credit Agreement in
the
form hereof, upon 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.
Capitalized terms used but not defined in this Agreement have the meanings
assigned to such terms in the Parent Credit Agreement. As used in this
Agreement, the following terms have the meanings specified below:
1
“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:
(a)
the
Administrative Agent shall have received from each PCA Loan Party either (x)
a
counterpart of the Additional Collateral Agreement or (y) in the case of any
Person that becomes a PCA 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 PCA Loan
Party;
(b)
a
security interest in all Indebtedness of FCX and each Subsidiary that is owing
to any PCA 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 PCA Loan
Party that is less than $25,000,000 in the aggregate for all such Indebtedness
of such Subsidiary owing to such PCA 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 FCX, and (ii) the results of a lien
search with respect to each PCA Loan Party in the jurisdiction where such PCA
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
2
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 FCX and
the Permitted Guarantors that is material to their business; neither FCX, nor
any PCA 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 FCX and its
Subsidiaries; and
(h)
each
PCA 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
FCX and the Credit 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 the Secured
Obligations or any Collateral to secure the Obligations or the Secured
Obligations pursuant to the Additional Collateral Requirement.
“Additional
Perfection Certificate”
means
the perfection certificate executed by FCX 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.
3
“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 Borrowers, 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, Security Agent, JAA Security Agent,
the
FI Security 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, with respect to any 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:
4
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 FCX 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, FCX 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
5
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 FCX 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 or 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 Parent Credit
Agreement)).
“Block
A”
means
Contract Area Block A, as defined in the Contract of Work.
“Block A
Base Production”
means
the scheduled production of FI Product from Block A for any given year as shown
on the Product Schedule appearing as Annex A to the Participation Agreement,
as
in effect on the date hereof, subject however to adjustment from time to time
pursuant to clause 16.4.2 of the Participation Agreement, as in effect on
the date hereof.
“Block
B
Assets”
means
assets now owned or hereafter acquired and utilized in connection with the
development and exploitation of Contract Area Block B (as defined in the
Contract of Work), including with respect to mining, concentrating, processing,
transportation, delivery and related operations (and assets used in connection
therewith) in respect of FI Product obtained or provided from Contract Area
Block B, but such term shall not in any event include the existing and future
mining, concentration, processing, transportation, delivery and related
operations (and assets used in connection therewith) in respect of FI Product
obtained or provided from Contract Area Block A (as defined in the Contract
of
Work).
“Board”
means
the Board of Governors of the Federal Reserve System of the United States of
America.
“Borrower”
means
each of FCX and PTFI.
6
“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
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 or Swingline
Loans.
7
“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,
the
Security Agent, the JAA Security Agent, the FI Security Agent or the FI Trustee
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 FCX, 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 PCA 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
this Agreement by the Third Amended and Restated FCX Pledge Agreement (PTFI
Shares), (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) in
the
case of each PCA Loan Party, a counterpart of the Collateral Agreement, duly
executed and delivered on behalf of such PCA Loan Party or, in the case of
each
Indonesian Loan Party, an Indonesian Guarantee Agreement, duly executed and
delivered on behalf of such Indonesian Loan Party, or (y) in the case of any
Person that becomes a Loan Party after the Effective Date, in the case of each
PCA Loan Party, a supplement to the Collateral Agreement (or after the
Additional Collateral Date, the Additional Collateral Agreement) or, in the
case
of each Indonesian Loan Party, a supplement to the Indonesian Guarantee
Agreement, in each case in the form specified therein, duly executed and
delivered on behalf of such Loan Party and (ii) with respect to any PCA
Loan
8
Party
that
directly owns Equity Interests of a Foreign Subsidiary required to be pledged
under paragraph (d) 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 PCA Loan Party and such Foreign
Subsidiary; and the Administrative Agent shall have received from each Borrower
a counterpart of each Security Document to which such Borrower is a party duly
executed and delivered on behalf of such Borrower;
(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; (ii) on and after the Effective Date, the Pledged PTFI
Shares shall have been pledged pursuant to the Third Amended and Restated FCX
Pledge Agreement (PTFI Shares) and the Collateral Agent shall have received
(A)
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 Third Amended and Restated FCX Pledge Agreement
(PTFI Shares), and (B) certificates or other instruments representing the
Pledged PTFI Shares; and (iii) 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 PCA Loan Party (or any other Restricted Subsidiary (other
than
a CFC) that is not a PCA 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 PCA Loan Parties shall not be required
to pledge more than 65% of the outstanding voting Equity Interests of any CFC
that is not a PCA 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;
9
(e)
(i) 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; and (ii) all Indebtedness
of
FCX or any Subsidiary that is owing to PTFI shall be evidenced by a promissory
note (other than Indebtedness in an aggregate amount for any Subsidiary less
than $25,000,000) and shall have been pledged pursuant to the Fourth Amended
and
Restated Lender Fiduciary Assignment and/or the Lender Security Agreement Fourth
Amendment, as applicable, and the Security Agent shall have received all
promissory notes evidencing any such pledged indebtedness, together with (A)
notification to the obligors of such indebtedness of such pledge and (B) undated
instruments of transfer with respect thereto endorsed in blank;
(f)
all
documents and instruments, including Uniform Commercial Code financing
statements and Indonesian security register filings, 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, the Collateral Agent or the Security Agent, as applicable, for filing,
registration or recording;
(g)
the
Collateral and Guarantee Minimum Requirement shall be satisfied;
(h)
FCX
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 both Borrowers, each other Loan Party and each
Subsidiary that is not a Loan Party and holds Indebtedness of either 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 and FI Security Documents Amendments to which it is a party, the
performance of its obligations thereunder and the granting by it of the Liens
thereunder.
Notwithstanding
the foregoing:
10
(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) FCX
and
the Credit 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 FCX or a Restricted Subsidiary and either (x) such consent
has not
been obtained despite commercially reasonable efforts of FCX and
the
Restricted Subsidiaries to obtain such consent or (y) FCX determines
in
good faith that requesting or obtaining such consent would be detrimental
to the business of FCX 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 FCX 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 by a PCA Loan Party shall be released unless
each
Ratable Guarantee, if any, by the applicable PCA Loan Party shall
be
released upon the release of such PCA 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)
|
FCX
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) FCX shall
have
used its commercially reasonable efforts to satisfy all such requirements
and (ii) FCX 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
|
11
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 under the FI Security Documents 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 Parent Credit
Agreement so long as FCX 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 or Swingline 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
Borrowers 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
12
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
13
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 FCX 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 FCX or net cash proceeds of
issuance of Equity Interests of FCX, (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 FCX,
(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
14
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 FCX and the Restricted Subsidiaries and (b) yields
gross proceeds to FCX 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 FCX and the Restricted Subsidiaries, as set
forth in the most recent consolidated balance sheet of FCX 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,
15
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
Agents”
means,
collectively, the Administrative Agent, the Collateral Agent and the Syndication
Agent.
“Credit
Rating”
means
a
rating assigned by S&P or Xxxxx’x to the credit facilities provided by the
Parent Credit 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 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; providedfurther,
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
16
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 FCX
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 FCX,
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 FCX or any
of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the
17
termination
of any Plan; (e) the receipt by FCX 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 FCX 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 FCX or any ERISA Affiliate of any notice, or the receipt
by any Multiemployer Plan from FCX 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.
“Exchange
Filing Requirements”
means
(i) the monthly and semiannual foreign exchange transaction activities filing
requirements under Bank Indonesia Regulation No. 4/2/PBI/2002 as amended by
Bank
Indonesia Regulation No. 5/1/PB1/2003 and Circular of Bank Indonesia No.
5/24/DSM dated October 3, 2003, (ii) the offshore borrowings filing requirements
with the Bank Indonesia, the Team for the Coordination and Management of
Offshore Loans, the Republic of Indonesia, and the Ministry of Finance, the
Republic of Indonesia, including in each case any successors thereto and (iii)
any additional or subsequent regulations requiring any of the Indonesian Loan
Parties to submit filings regarding offshore borrowings or foreign exchange
transaction activities as they may relate to any of the Loan Documents, in
each
case as may be amended and in effect from time to time.
“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 FCX 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.
18
“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
FCX
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
either 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 FCX 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 either 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 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. FCX 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.
19
“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 Third Amended and Restated FCX Pledge Agreement (PTFI Shares), 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
Collateral and Rights”
means
the rights and remedies of the Administrative Agent, the FI Trustee, the FI
Security Agent, the Security Agent, the JAA Security Agent and the Lenders
under
this Agreement and the Loan Documents or on the collateral provided under the
FI
Security Documents.
“FI
Creditors”
means
the “FI Creditors”, as defined in the FI Trust Agreement and shall include the
Lenders and the other holders of the Obligations identified in the FI Trust
Agreement Financing Annexes.
“FI
Intercreditor Agreement”
means
the Intercreditor Agreement dated as of October 11, 1996 among RTZ, PT Rio
Tinto
Indonesia, RTZIF and certain secured creditors of PTFI.
“FI
Intercreditor Agreement Creditor Annex”
means
a
“Creditor Annex”, as defined in the FI Intercreditor Agreement, in form and
substance satisfactory to the Administrative Agent, to be filed with the FI
Trustee for purposes of identifying the holders of the Obligations as FI
Creditors thereunder.
“FI
Lender Security Documents”
means
the Lender Security Agreement, the Lender Security Agreement Amendments, the
Fourth Amended and Restated Lender Surat Kuasa, the Fourth Amended and Restated
Fiduciary Transfer and the Fourth Amended and Restated Lender Fiduciary
Assignment.
“FI
Product”
means
ores or minerals produced by the FI Project or otherwise obtained from the
Mining Area (as defined in the Contract of Work) and any kinds of products,
including, without limitation, concentrates, produced from such ores or
minerals.
“FI
Project”
means
the mining, concentrating and related operations conducted or to be conducted
by
PTFI in Papua, Indonesia, pursuant to the Contract of Work.
“FI
Security Agent”
means
U.S. Bank National Association or any successor, not in its individual capacity,
but as FI Security Agent for the Secured Parties under the Fiduciary Assignment
of Accounts.
20
“FI
Secured Parties”
means
the Issuing Banks, the Security Agent, the JAA Security Agent, the Syndication
Agent, the Lenders, the Collateral Agent, the Administrative Agent, the Parallel
Creditor under the FI Security Documents and the Loan Documents and, for
purposes of the Fiduciary Assignment of Accounts, the FI Trustee, and the
successors and assigns of the foregoing. For the avoidance of doubt, while
RTF
is a secured party under each of the Fiduciary Assignment of Accounts and the
Fiduciary Transfer of Joint Account Assets, RTF is not intended to be a
beneficiary of any provision of any Loan Document, any Security Document or,
except as expressly provided therein, any FI Security Document.
“FI
Security Documents”
means
the FI Trust Agreement, the FI Trust Agreement Financing Annexes, the Operator
Replacement Agreement, the Surat Kuasa, the Fourth Amended and Restated
Fiduciary Transfer, the Fiduciary Assignment of Accounts, the Lender Security
Agreement, the Lender Security Agreement Amendments, the Fourth Amended and
Restated Lender Surat Kuasa, the Fourth Amended and Restated Lender Fiduciary
Assignment, the Fiduciary Transfer of Joint Account Assets, the FI Intercreditor
Agreement, the FI Intercreditor Agreement Creditor Annex, the Side Letter,
the
Side Letter Creditor Annex and each other agreement, instrument or document
pertaining to assets of PTFI executed and delivered pursuant to Section 5.12
or
5.13 to secure any of the Obligations.
“FI
Security Documents Amendments”
means
the FI Trust Agreement Financing Annexes, the Surat Kuasa, the Fourth Amended
and Restated Fiduciary Transfer, the Fiduciary Assignment of Accounts, the
Lender Security Agreement Fourth Amendment, the Fourth Amended and Restated
Lender Surat Kuasa, the Fourth Amended and Restated Lender Fiduciary Assignment,
the Fiduciary Transfer of Joint Account Assets, the FI Intercreditor Agreement
Creditor Annex and the Side Letter Creditor Annex.
“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.
“FI
Trust Agreement Financing Annexes”
means
“Creditor Annexes”, as defined in the FI Trust Agreement, in form and substance
satisfactory to the Administrative Agent, to be filed with the FI Trustee for
purposes of identifying the holders of the Obligations as FI Creditors
thereunder.
“FI
Trustee”
means
U.S. Bank National Association, or any successor trustee, as trustee for PTFI,
PT-Rio Tinto Indonesia and the Secured Parties pursuant to the FI Trust
Agreement and, in such capacity, also as party to the Operator Replacement
Agreement, and as a party to the Surat Kuasa and the Fiduciary Assignment of
Accounts.
“Fiduciary
Assignment of Accounts”
means
a
Fiduciary Assignment of Accounts substantially in the form of the Third Amended
and Restated Fiduciary Assignment, with such modifications as may be necessary
to reflect the amendment and restatement of the Existing Credit Agreement in
the
form of this Agreement and in form and substance satisfactory to the
Administrative Agent, pursuant to which PTFI grants to secure the PTFI
Obligations (as defined therein) and PT-Rio Tinto Indonesia grants to secure
the
PT-Rio Tinto Indonesia Obligations (as defined therein) a security interest
in
accounts receivable from Concentrate Sales Agreements of PTFI for the benefit
of
the FI Secured Parties.
21
“Fiduciary
Transfer of Joint Account Assets”
means
a
Fiduciary Transfer of Joint Account Assets substantially in the form of the
Third Amended and Restated JAA Fiduciary Transfer, with such modifications
as
may be necessary to reflect the amendment and restatement of the Existing Credit
Agreement in the form of this Agreement and in form and substance satisfactory
to the Administrative Agent, pursuant to which PTFI grants to secure the PTFI
Obligations and PT-Rio Tinto Indonesia grants to secure the PT-Rio Tinto
Indonesia Obligations a security interest in its interest in Joint Account
Assets for the benefit of the FI Secured Parties.
“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 or PTFI, as applicable.
“Foreign
Lender”
means
any Lender that is organized under the laws of a jurisdiction other than that
in
which either 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. If a Borrower is located in more
than one jurisdiction, a Lender’s status as a Foreign Lender shall be tested
separately with respect to each 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 Secured Obligations.
“Fourth
Amended and Restated Fiduciary Transfer”
means
a
Fourth Amended and Restated Fiduciary Transfer substantially in the form of
the
Third Amended and Restated Fiduciary Transfer, with such modifications as may
be
necessary to reflect the amendment and restatement of the Existing Credit
Agreement in the form of this Agreement and in form and substance satisfactory
to the Administrative Agent pursuant to which PTFI grants a security interest
in
its Indonesian assets (other than Joint Account Assets) for the ratable benefit
of the holders of the Obligations.
“Fourth
Amended and Restated Lender Fiduciary Assignment”
means
a
Fourth Amended and Restated Lender Fiduciary Assignment substantially in the
form of the Third Amended and Restated Lender Fiduciary Assignment, with such
modifications as may be necessary to reflect the amendment and restatement
of
the Existing Credit Agreement in the form of this Agreement and in form and
substance satisfactory to the Administrative Agent, pursuant to which PTFI
grants a security interest in its accounts
22
receivable
(other than those arising from Concentrate Sales Agreements of PTFI or Joint
Account Assets) for the ratable benefit of the holders of the
Obligations.
“Fourth
Amended and Restated Lender Surat Kuasa”
means
a
Fourth Amended and Restated Lender Surat Kuasa substantially in the form of
the
Third Amended and Restated Lender Surat Kuasa, with such modifications as may
be
necessary to reflect the amendment and restatement of the Existing Credit
Agreement in the form of this Agreement and in form and substance satisfactory
to the Administrative Agent, granted by PTFI with respect to the authorization
to appoint a manager to carry out all acts and matters related to PTFI’s rights,
titles and interest in, to and under the contract rights and other assets
constituting Collateral (as defined in the Lender Security Agreement) upon
the
occurrence of an Event of Default.
“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 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 Revolving
Commitments and the Term Loans and the revolving commitments under the Parent
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
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
23
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,
24
(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.
25
“Indonesian
Guarantee Agreement”
means
the Indonesian Guarantee Agreement among the Indonesian Loan Parties and the
Administrative Agent, substantially in the form of Exhibit E.
“Indonesian
Loan Party”
means
PTFI, PTII, each Indonesian Subsidiary that Guarantees the obligations under
the
Existing Credit Agreement (other than PT Mitradaya Vulkanisindo and PT Xxxx
Eastern Minerals) and each Indonesian Subsidiary formed or acquired after the
Effective Date that is a Restricted Subsidiary.
“Indonesian
Subsidiary”
means
PTFI, PTII and each other Subsidiary that is organized under the laws of
Indonesia.
“Indonesian
Taxes”
means
Taxes imposed, assessed, levied or collected by Indonesia or any political
subdivision or taxing authority thereof or therein or any association or
organization of which Indonesia may be a member (but excluding Taxes imposed
upon the net income of, or any franchise taxes imposed on, the Administrative
Agent, the FI Trustee, any Lender (or permitted assignee or Participant) or
the
Issuing Bank which, in each case, has its principal office in Indonesia or
a
branch office in Indonesia, unless and to the extent attributable to the
enforcement of any rights hereunder or under any FI Security Document with
respect to an Event of Default), together with interest thereon and penalties,
fines and surcharges and other liabilities with respect thereto, if any, on
or
in respect of this Agreement, the Loans to PTFI, the Letters of Credit issued
for the account of PTFI or any other Indonesian Restricted Subsidiary, the
FI
Security Documents, the Assigned Agreements or any promissory notes of PTFI
issued hereunder, the execution, enforcement, registration, recordation,
notarization or other formalization of any thereof, and any payments of
principal, interest, charges, fees or other amounts made on, under or in respect
of any thereof.
“Interest
Election Request”
means
a
request by either Borrower to convert or continue a Revolving 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
either 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,
and (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. 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.
26
“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
FCX 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 FCX, 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.
“JAA
Security Agent”
means
JPMCB, not in its individual capacity, but as JAA Security Agent for the Lenders
and RTF, in each case under the Fiduciary Transfer of Joint Account
Assets.
“JPMCB”
has
the
meaning assigned to such term in the preamble to this Agreement.
“Joint
Account Assets”
has
the
meaning assigned to such term in the Participation Agreement.
27
“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 either
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.
“Lender
Security Agreement”
means
the Bank Security Agreement dated as of October 11, 1996 between PTFI, First
Trust of New York, National Association, as trustee and The Chase Manhattan
Bank, as security agent pursuant to which PTFI granted a security interest
in
the Collateral (as defined therein) for the ratable benefit of the holders
of
the Obligations.
“Lender
Security Agreement Amendments”
means
the Amendment to the Lender Security Agreement dated as of October 19, 2001,
the
Second Amendment to the Lender Security Agreement dated as of November 11,
2003,
the Third Amendment to the Lender Security Agreement dated as of July 26, 2006
and the Lender Security Agreement Fourth Amendment.
“Lender
Security Agreement Fourth Amendment”
means
a
fourth amendment to the Lender Security Agreement containing such modifications
to the Lender Security Agreement as may be necessary to reflect the amendment
and restatement of the Existing Credit Agreement in the form of this Agreement
and in form and substance satisfactory to the Administrative Agent.
“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.
28
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 Indonesian Guarantee Agreement,
the FCX Pledge Agreements and the other Security Documents.
“Loan
Parties”
means
FCX, PTFI, each PCA Loan Party and each Indonesian Loan Party.
“Loans”
means
the loans made by the Lenders to the Borrowers pursuant to this
Agreement.
“Material
Adverse Effect”
means
a
material adverse effect on (a) the business, operations or financial
condition of FCX 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 Parent Credit Agreement), Project Financings or obligations in respect
of
one or more Hedging Agreements, of FCX 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 FCX 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 FCX 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 FCX, pursuant to the Merger Agreement, whereby PD will be the
surviving entity of the Merger and will be a Wholly Owned Subsidiary of FCX
upon
the consummation thereof.
“Merger
Agreement”
means
the Agreement and Plan of Merger, dated as of November 18, 2006, among FCX,
PD
and Panther Acquisition Corporation.
29
“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.
“Xxxxxxx”
has
the
meaning assigned to such term in the preamble to this Agreement.
“Metalstream
Transaction”
means
(a) a transaction in which FCX or any Restricted Subsidiary incurs obligations
in respect of prepaid production arrangements, prepaid forward sale arrangements
or derivative contracts in respect of which FCX or any such Restricted
Subsidiary receives upfront payments in consideration of an obligation to
deliver gold, copper or any other metal mined by FCX 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 FCX 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
FCX’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 and the 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
PCA Loan Party and identified on Schedule 1.01D, and includes each other parcel
of real property and the improvements thereto owned by a PCA 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 FCX 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 FCX 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,
30
directly
arising from the operations of such business, division or operating unit that
are retained by FCX 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 FCX 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 FCX 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 FCX), 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 each of FCX
and
PTFI
hereunder
(the “RCA
Obligations”)
and of
FCX and PTFI and the other Loan Parties under the other Loan Documents in
respect of the RCA Obligations, including, without limitation, (a) the due
and
punctual payment by the Borrowers 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,
(iii) the Guarantee obligations of FCX under the Collateral Agreement and of
PTFI under the Indonesian Guarantee Agreement in each case in respect of the
RCA
Obligations and (iv) all other monetary obligations of the Borrowers 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), in each case to the extent
arising in connection with the RCA Obligations, (b) the due and punctual
performance of all other obligations of the Borrowers under or pursuant to
this
Agreement and each other Loan Document, in each case to the extent arising
in
connection with the RCA Obligations, 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, in each case to the extent arising in
connection with the RCA Obligations.
“Operator
Replacement Agreement”
means
the Operator Replacement Agreement dated as of October 11, 1996 among PTFI,
PT
Rio Tinto Indonesia, First
31
Trust
of
New York, National Association, as trustee and The Chase Manhattan Bank, as
administrative agent (in its capacity as Operator Selection
Representative).
“Operator
Selection Representative”
means
the Administrative Agent acting as the Operator Selection Representative under
the Operator Replacement Agreement, pursuant to its designation in Section
10.16
therein as Operator Selection Representative.
“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”.
“Parent
Credit Agreement”
means
the Credit Agreement dated as of March 19, 2007, among FCX, the lenders and
issuing banks party thereto and JPMCB, as administrative agent and collateral
agent thereunder, and Xxxxxxx, as syndication agent thereunder.
“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 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.
“PCA
Loan Party”
means,
at any time, each “Loan Party” under the Parent Credit Agreement at such
time.
“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 each Borrower substantially in the form
of Exhibit B-1.
32
“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
FCX
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 FCX 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 FCX 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);
33
(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 FCX 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 FCX 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.
34
“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
PCA
Loan Party (or of any other Restricted Subsidiary (other than a CFC) that is
not
a PCA Loan Party but is not precluded from pledging Equity Interests) and each
subsequently acquired or organized subsidiary of FCX 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
35
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 Parent 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 Parent 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 either 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, as applicable, the Third Amended and Restated FCX Pledge Agreement (PTFI
Shares) or the Fourth Amended and Restated FCX Pledge Agreement (PTFI Shares).
On the Effective Date, the Pledged PTFI Shares represent 50.1% of the issued
and
outstanding shares of PTFI.
“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.
“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 FCX 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 (a)
“Project
Financing”
shall
not include any Indebtedness or Attributable Debt the proceeds of which are
applied to acquire a going concern and (b) any Project Financing of PTFI shall
be Non-Recourse Indebtedness.
36
“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 Lender, a “Revolving Lender”
under the Parent Credit Agreement or an Affiliate of a Lender or such a
“Revolving Lender”, pursuant to which such Lender, “Revolving 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 $5,000,000
(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 FCX 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:
37
(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 FCX or, on or after the Additional Collateral Date, any
other PCA 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 FCX 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 PCA 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 FCX or any Restricted Subsidiary (other
than any Receivables Subsidiary), pursuant to which FCX 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
38
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 FCX 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 and unused Commitments (other
than Swingline Commitments) representing more than 50% of the aggregate
Revolving Exposures and unused Commitments (other than Swingline Commitments)
at
such time.
“Restricted
Indebtedness”
means
any Indebtedness of FCX 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 FCX 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 FCX or any Restricted Subsidiary or any option, warrant
or other right to acquire any such Equity Interests in FCX 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) of the Parent Credit Agreement; 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
39
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 $500,000,000.
“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).
“RTF”
means
Rio Tinto Finance plc, a company organized under the laws of England and a
wholly owned subsidiary of RTZ.
40
“RTZ”
means
Rio Tinto plc (formerly RTZ Corporation PLC), a company organized under the
laws
of England.
“RTZ
Documents”
means
the Participation Agreement (including the Financial and Accounting Procedures
thereunder) and each other material agreement in connection
therewith.
“RTZIF”
means
RTZ Indonesian Finance Limited, a company organized under the laws of England
and a wholly owned subsidiary of RTZ.
“RTZ
Indonesia”
means
RTZ Indonesia Limited, a company organized under the laws of England and a
wholly owned subsidiary of RTZ.
“RTZ
Interests”
means
the interests of PT Rio Tinto Indonesia in the Contract of Work and the Joint
Account 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.
“Second
Amended and Restated FCX Pledge Agreement (PTFI Shares)”
means
the Second Amended and Restated FCX Pledge Agreement (PTFI Shares) stated in
deed number 110 dated July 26, 2006, amending and restating the Amended and
Restated FCX Pledge Agreement (PTFI Shares) stated in deed number 5 dated
November 11, 2003, as amended by the First Amendment to the FCX Pledge
Agreements stated in deed number 10 dated March 31, 2004 (which amended and
restated the Pledge of Shares stated in deed number 42 dated October 19, 2001)
pursuant to which FCX granted a perfected first priority security interest
under
Indonesian law in a portion of the Pledged PTFI Shares for the ratable benefit
of the holders of the Obligations (as defined in the Existing Credit
Agreement).
“Second
Amended and Restated FCX Pledge Agreement (PTII Shares)”
means
the Second Amended and Restated FCX Pledge Agreement (PTII Shares) stated in
deed number 111 dated July 26, 2006, amending and restating the Amended and
Restated FCX Pledge Agreement (PTII Shares) stated in deed number 6 dated
November 11, 2003, as amended by the First Amendment to the FCX Pledge
Agreements stated in deed number 10 dated March 31, 2004 (which amended and
restated the Pledge of Shares agreement in deed number 41 dated October 19,
2001) pursuant to which FCX granted a perfected first priority security interest
under Indonesian law in the Pledged PTII Shares for the ratable benefit of
the
holders of the Obligations (as defined in the Existing Credit
Agreement).
“Secured
Obligations”
means
(a) the “Obligations” as defined in the Parent Credit Agreement other than any
such obligations in respect of the “Obligations” as defined herein, (b) the due
and punctual payment and performance of all obligations of FCX 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 FCX or any
Restricted Subsidiary to JPMCB, a Lender under this Agreement or the Parent
Credit Agreement or any of their Affiliates in respect of cash management
services provided to FCX or any Restricted Subsidiary and (d) the due and
punctual payment and performance of all obligations owed from time to time
by
FCX or any Restricted Subsidiary to Lenders, “Revolving Lenders” under the
Parent 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.
41
“Secured
Parties”
has
the
meaning assigned to such term in the Collateral Agreement or, after the
Additional Collateral Date, the Additional Collateral Agreement.
“Security
Agent”
means
JPMCB, not in its individual capacity, but as Security Agent for the
Lenders.
“Security
Documents”
means
the Collateral Agreement, the Additional Collateral Agreement, the Indonesian
Guarantee Agreement, the FI Security Documents, 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 FCX 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.
“Side
Letter”
means
the agreement dated as of October 11, 1996 between PTFI, RTZ, PT Rio Tinto
Indonesia, RTZIF, RTZ Indonesian Investments Limited, First Trust of New York,
National Association, as trustee, the JAA Security Agent and certain secured
creditors of FI.
“Side
Letter Creditor Annex”
means
a
“Creditor Annex”, as defined in the Side Letter, in form and substance
satisfactory to the Administrative Agent, to be filed with the FI Trustee for
purposes of identifying the holders of the Obligations as FI Creditors
thereunder and any additional or separate “Creditor Annex” filed with the FI
Trustee for purposes of identifying the holders of the Obligations as FI
Creditors, in each case as amended and in effect from time to time.
“Significant
Subsidiary”
means
any Subsidiary of FCX 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 each 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 FCX
or
any Restricted Subsidiary that FCX 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
42
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 FCX. 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 Obligations and the Secured Obligations
under a Loan Document.
“Surat
Kuasa”
means
a
Surat Kuasa substantially in the form of the Third Amended and Restated Surat
Kuasa, with such modifications as may be necessary to reflect the amendment
and
restatement of the Existing Credit Agreement in the form of this Agreement
and
in form and substance satisfactory to the Administrative Agent, granted by
PTFI
and PT-Rio Tinto Indonesia with respect to authorization to appoint a successor
Operator (as defined in the Participation Agreement).
“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, 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 FCX 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 FCX 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
43
FCX
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
Loans”
has
the
meaning assigned to such term in the Parent Credit Agreement.
“Third
Amended and Restated FCX Pledge Agreement (PTFI Shares)”
means
an
amended and restated pledge agreement substantially in the form of the Second
Amended and Restated FCX Pledge Agreement (PTFI Shares), with such modifications
as may be necessary to reflect the amendment and restatement of the Existing
Credit Agreement in the form of this Agreement and in form and substance
satisfactory to the Administrative Agent and the Required Lenders, 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.
“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 Ratable FCX Obligations and the Secured Obligations.
“Third
Amended and Restated Fiduciary Assignment”
means
the Third Amended and Restated Fiduciary Assignment stated in deed number 107
dated July 26, 2006, amending and restating the Second Amended and Restated
Fiduciary Assignment stated in deed number 3 dated November 11, 2003, as amended
by deed number 8 dated March 31, 2004 (which amended and restated the Amendment
and Restatement of Fiduciary Assignment of Accounts (Penyerahan Hak Atas
Tagihan) stated in deed number 39 dated October 19, 2001) granted by PTFI and
PT-Rio Tinto Indonesia to the Secured Parties (as defined in the Existing Credit
Agreement).
“Third
Amended and Restated Fiduciary Transfer”
means
the Third Amended and Restated Fiduciary Transfer stated in deed number 108
dated July 26, 2006, amending and restating the Second Amended and Restated
Fiduciary Transfer stated in deed number 8 dated November 11, 2003, as amended
by deed number 11 dated March 31, 2004 (which amended and restated the Amendment
and Restatement of Fiduciary Transfer of Assets (Penyerahan Xxx Xxxxxx Fidusia)
stated in deed number 43 dated October 19, 2001) granted by PTFI to the Secured
Parties (as defined in the Existing Credit Agreement).
“Third
Amended and Restated JAA Fiduciary Transfer”
means
the Third Amended and Restated JAA Fiduciary Transfer stated in deed number
106
dated July 26, 2006, amending and restating the Second Amended and Restated
JAA
Fiduciary Transfer stated in deed number 2 dated November 11, 2003, as amended
by deed number 7 dated March 31, 2004 (which amended and restated the Amendment
and Restatement of Fiduciary Transfer of Assets (Penyerahan Xxx Xxxxxx Fidusia)
of Joint Account Assets stated in deed number 38 dated October 19, 2001) granted
by PTFI and PT-Rio Tinto Indonesia to the Secured Parties (as defined in the
Existing Credit Agreement).
“Third
Amended and Restated Lender Fiduciary Assignment”
means
the Third Amended and Restated Lender Fiduciary Assignment stated in deed number
109 dated July 26, 2006, amending and restating the Second Amended and Restated
Lender
44
Fiduciary
Assignment stated in deed number 12 dated March 31, 2004 (which amended and
restated the Amendment and Restatement of Fiduciary Assignment of Accounts
(the
Penyerahan Hak Atas Tagihan) stated in deed number 44 dated October 19, 2001)
granted by PTFI to the to the Secured Parties (as defined in the Existing Credit
Agreement).
“Third
Amended and Restated Lender Surat Kuasa”
means
the Third Amended and Restated Lender Surat Kuasa stated in deed number 114
dated July 26, 2006, amending and restating the Second Amended and Restated
Lender Surat Kuasa stated in deed number 10 dated November 11, 2003, as amended
by deed number 13 dated March 31, 2004 (which amended and restated the Lender
Surat Kuasa (Power of Attorney) Amendment and Restatement stated in deed number
45 dated October 19, 2001) granted by PTFI to the Secured Parties (as defined
in
the Existing Credit Agreement).
“Third
Amended and Restated Surat Kuasa”
means
the Third Amended and Restated Surat Kuasa stated in deed number 113 dated
July
26, 2006, amending and restating the Second Amended and Restated Surat Kuasa
stated in deed number 4 dated November 11, 2003, as amended by deed number
9
dated March 31, 2004, which amended and restated the Surat Kuasa (Power of
Attorney) Amendment and Restatement stated in deed number 40 dated October
19,
2001 granted by PTFI and PT-Rio Tinto Indonesia to the FI Trustee.
“Total
Debt”
means,
as of any date, the sum as of such date of (a) the aggregate principal amount
of
Funded Debt of FCX 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 FCX 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 FCX and the Restricted Subsidiaries outstanding as of such date
that is secured by any asset of FCX 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 FCX 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
B Maturity Date”
means
March 19, 2014.
45
“Tranche
B Term Loans”
has
the
meaning assigned to such term in the Parent Credit Agreement.
“Transaction
Costs”
means
all fees, costs and expenses (including fees paid for consulting and financial
services) incurred or payable by FCX 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 FCX and each of its Subsidiaries party thereto of
the
Parent 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.
46
“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 Parent 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 Parent Credit Agreement relating to such
Letters of Credit and “Letters of Credit” that have not yet been reimbursed by
or on behalf of the Borrowers 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,
47
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
FCX notifies the Administrative Agent that FCX 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 FCX 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. Revolving
Commitments.
Subject
to the terms and conditions set forth herein, each Lender agrees to make
Revolving Loans to the Borrowers 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 Borrowers may borrow, prepay and reborrow Revolving
Loans.
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 Type made by the Lenders ratably in accordance with their
respective Commitments. 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 shall be comprised
entirely of ABR Loans or Eurodollar Loans as the applicable Borrower may request
in accordance herewith, provided
that all
Borrowings made on the Effective Date must be made as ABR Borrowings unless
the
applicable 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
48
of
such
option shall not affect the obligation of the applicable 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 15 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, neither Borrower shall
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.
SECTION
2.03. Requests
for Borrowings.
To
request a Revolving Borrowing, a 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 applicable Borrower. Each such telephonic
and written Borrowing Request shall specify the following information in
compliance with Section 2.02:
(i)
the
aggregate amount of such Borrowing;
(ii)
the
date of such Borrowing, which shall be a Business Day;
(iii)
whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv)
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
(v)
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
49
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 applicable
Borrower by promptly crediting the amounts so received, in like funds, to an
account of such Borrower maintained with the Administrative Agent in New York
City and designated by such 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 applicable
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 applicable 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 such 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 such 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, (A) either Borrower may request
the issuance of Letters of Credit for its own account, (B) FCX may request
the
issuance of Letters of Credit for the account of any Restricted Subsidiary
(other than PTFI) and (C) subject to Section 6.04 and to the last sentence
of this paragraph, FCX may request the issuance of Letters of Credit 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 Lender and each 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
50
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
Lenders hereby agree that upon the effectiveness of any redesignation of a
Letter of Credit under Section 2.05(a)(iii) of the Parent Credit Agreement
(a
“PA
Letter of Credit”)
as a
Letter of Credit, the Issuing Bank that issued such Letter of Credit shall
be
deemed, without further action by any party hereto, to have granted to each
Lender, and each Lender shall be deemed to have purchased from such Issuing
Bank, a participation in such Letter of Credit in accordance with paragraph
(d)
below, and on and after the effectiveness of any such redesignation, such Letter
of Credit shall constitute a Letter of Credit for all purposes hereof;
provided
in each
case that (A) the applicable Borrower shall by notice to the Administrative
Agent identify the PA Letters of Credit to be redesignated 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 a Letter of Credit under this
Agreement shall be satisfied (or waived in accordance with Section
9.02).
(iv)
Upon
the Effective Date, the
holders
immediately prior to the Effective Date of participations in any outstanding
letters of credit under the Existing Credit Agreement shall be deemed to release
their participations in such letters of credit and concurrently, each Revolving
Lender shall be deemed to acquire a participation in such letters of credit
under this Agreement in an amount equal to such Lender’s Applicable Percentage
of the aggregate amount available to be drawn under such Letter of Credit.
(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), a 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 applicable 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 Parent 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
51
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 that shall have requested
such Letter of Credit (a “Requesting
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
Borrowers on the date due as provided in paragraph (e) of this Section, or
of
any reimbursement payment required to be refunded to either 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 Requesting 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
such
Requesting 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 such Requesting 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 such
Requesting 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 such
Requesting 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 such
Requesting 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, such Requesting Borrower’s obligation to make such payment shall be
discharged and replaced by the resulting Borrowing. If a Requesting 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 such Requesting
52
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
such
Requesting 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 a Requesting 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 applicable Requesting Borrower
of its obligation to reimburse such LC Disbursement.
(f)
Obligations
Absolute.
The
Borrowers’ 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 Borrowers’ 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
Borrowers to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrowers to the
extent permitted by applicable law) suffered by the Borrowers 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.
53
(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 Requesting 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 Requesting
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 Requesting
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 Requesting Borrower reimburses such LC Disbursement,
at the
rate per annum then applicable to ABR Loans; provided
that, if
the Requesting 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
Borrowers, 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 Borrowers 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 Borrowers are
required
to provide cash collateral pursuant to Section 2.10(b) or if FCX 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 Borrowers receive 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 FCX provides notice of such election, as applicable, the Borrowers
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 either Borrower described in clause (g) or (h) of
Article VII or (ii) upon the occurrence of the circumstances described in
Section 2.10(b).
54
Each
such
deposit shall be held by the Administrative Agent as collateral for the
payment
and performance of the obligations of the Borrowers under this Agreement,
and
the Borrowers hereby grant 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 Borrowers’ 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 Borrowers under this Agreement. If the
Borrowers are required to provide an amount of cash collateral hereunder
as a
result of the occurrence of an Event of Default or FCX 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 Borrowers (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 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 Requesting 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 applicable 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. A 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
55
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 applicable 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 such 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
applicable 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 applicable 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
applicable 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 Borrowers, 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.
56
SECTION
2.07. Termination
and Reduction of Commitments. (a)
Unless
previously terminated, 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,
(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, and (iii) FCX shall not terminate or reduce
the
Revolving Commitments unless it has obtained the prior approval required
therefor under Section 6.11(b) of the Parent Credit Agreement.
(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)
Each
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, and (ii)
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 Borrowers 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 each 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
57
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 either
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 Borrowers 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. [intentionally omitted]
SECTION
2.10. Prepayment
of Loans. (a)
The
Borrowers 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
Borrowers 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 Borrowers shall provide cash collateral in an
aggregate amount equal to such excess in accordance with Section
2.05(j).
(c)
Prior
to any prepayment of Borrowings hereunder, the Borrowers shall select the
Borrowing or Borrowings to be prepaid and shall specify such selection
in the
notice of such prepayment pursuant to paragraph (d) of this
Section.
(d)
The
applicable 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 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).
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.
58
SECTION
2.11. Fees. (a)
The
Borrowers agree 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)
Each
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 requested by such Borrower, 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 Borrowers 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
Borrowers agree to pay to the Administrative Agent, for its own account,
fees
payable in the amounts and at the times separately agreed upon between
the
Borrowers 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.
59
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 either 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 a Borrower shall be payable by such
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 Borrowers and the
Lenders
by telephone or telecopy as promptly as practicable thereafter and, until
the
Administrative Agent notifies the Borrowers 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
60
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 Borrowers
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 Borrowers) 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
61
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 Borrowers 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 Borrowers and shall be conclusive absent
manifest error. The Borrowers (or the Borrower in respect of the Loan or
Letter
of Credit, if any, to which such compensation request is attributable)
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
Borrowers 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 a
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 a Borrower other than on the last day of the Interest
Period
applicable thereto, (c) the failure by a 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 of a Borrower other than on the last
day of
the Interest Period applicable thereto as a result of a request by FCX
pursuant
to Section 2.18, then, in any such event, such 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
Borrowers 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.
62
SECTION
2.16. Taxes. (a)
Any
and
all payments by or on account of any obligation of either 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
either 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) such
Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance
with
applicable law.
(b)
In
addition, each Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c)
Each
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 a 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
Borrowers 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 a 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
either Borrower to a Governmental Authority, such 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 Borrowers or with respect to which
the
Borrowers have 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 Borrowers 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
Borrowers, upon the request of the Administrative Agent, such Lender or
such
Issuing Bank, agrees to repay the amount paid over to the Borrowers (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
63
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 either Borrower is located,
or
any treaty to which such jurisdiction is a party, with respect to payments
under
this Agreement shall deliver to the applicable 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 such 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 such 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 FI Trustee, 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.
(h)
PTFI
shall pay to the relevant Governmental Authority when due all Indonesian
Taxes
in accordance with applicable law.
(i)
PTFI
shall indemnify the Administrative Agent, the FI Trustee, the Collateral
Agent,
the Security Agent, each Lender (or permitted assignee or Participant)
and each
Issuing Bank against, and shall reimburse the Administrative Agent, the
FI
Trustee, the Collateral Agent, the Security Agent, each Lender (or permitted
assignee or Participant) and each Issuing Bank upon demand for, the full
amount
of any Indonesian Taxes paid by the Administrative Agent, the FI Trustee,
the
Collateral Agent, the Security Agent, such Lender (or permitted assignee
or
Participant) or such Issuing Bank, and any loss, liability, claim or expense
(including interest, penalties, fines, surcharges and legal fees) which
the
Administrative Agent, the FI Trustee, the Collateral Agent, the Security
Agent,
such Lender (or permitted assignee or Participant) or such Issuing Bank
may
incur at any time arising out of or in connection with any failure of PTFI
to
make any payments of Indonesian Taxes, whether or not such Indonesian Taxes
were
correctly or legally imposed or asserted by the relevant Governmental Authority;
provided,
however,
that
PTFI shall not be obligated to make payment to the Administrative Agent,
the FI
Trustee, the Collateral Agent, the Security Agent, each Lender (or permitted
assignee or Participant) or any Issuing Bank pursuant to this Section in
respect
of penalties, interest and other liabilities attributable to any Indonesian
Taxes if such penalties, interest and other liabilities are attributable
to the
gross negligence or wilful misconduct of the Administrative Agent, FI Trustee,
the Collateral Agent, the Security Agent, any Lender or any Issuing Bank;
providedfurther,
that no
permitted assignee or Participant of any Lender shall be entitled to receive
any
greater payment under this Section than such Lender would have been entitled
to
receive with respect to the rights assigned, participated or otherwise
transferred unless such assignment, participation or transfer shall have
been
made at a time when the circumstances giving rise to such greater payment
did
not exist. A certificate as to the amount of such payment or liability
delivered
to PTFI by a Lender (or permitted assignee or Participant), the FI Trustee,
the
Collateral Agent, the Security Agent, an Issuing Bank or the Administrative
Agent on its behalf, absent manifest error, shall be final, conclusive
and
binding for all purposes. Such indemnification shall be made within 30 days
after the date such Lender (or permitted assignee or Participant), the
FI
Trustee, the Collateral Agent, the Security
64
Agent,
such Issuing Bank or the Administrative Agent, as the case may be, makes
written
demand therefor.
(j)
Except
as otherwise expressly provided in paragraph (m) below, all payments on
account
of the principal of or interest on the Loans made to PTFI, any promissory
notes
of PTFI issued hereunder and all other amounts payable by PTFI to or for
the
account of any Lender (or permitted assignee or Participant), an Issuing
Bank,
the Collateral Agent, the Security Agent or the Administrative Agent hereunder
(including amounts payable under Section 2.16(h) or 2.16(i)) or to or for
the FI Trustee under the FI Security Documents and to any of them under
any
other Loan Document shall be made free and clear of and without reduction
by
reason of any Indonesian Taxes all of which shall be for the account of
and paid
in full when due by PTFI. In the event that PTFI is required by any applicable
law, decree or regulation to deduct or withhold Indonesian Taxes from any
amounts payable on, under or in respect of this Agreement, any other Loan
Document or any promissory note issued hereunder, PTFI shall make the required
deduction or withholding, promptly pay the amount of such Indonesian Taxes
to
the appropriate taxing authorities and pay to the Administrative Agent
such
additional amounts as may be required, after the deduction or withholding
of
Indonesian Taxes (including deductions applicable to additional sums payable
under this Section 2.16), to enable each Lender (or permitted assignee or
Participant), each Issuing Bank, the FI Trustee, the Collateral Agent,
the
Security Agent or the Administrative Agent to receive from PTFI on the
due date
thereof, an amount equal to the full amount stated to be payable to such
Lender
(or permitted assignee or Participant), such Issuing Bank, the FI Trustee,
the
Collateral Agent, the Security Agent or the Administrative Agent under
this
Agreement, any other applicable Loan Document or any promissory note issued
hereunder.
(k)
Without in any way affecting PTFI’s obligations under the other provisions of
this Section 2.16, PTFI shall furnish to the Administrative Agent the
originals or certified copies of all tax receipts issued by the relevant
taxing
authority in respect of each payment, deduction or withholding of Indonesian
Taxes required to be made by applicable laws or regulations, as soon as
practicable and in any event not later than 90 days after the date on which
such payment is made, and PTFI shall, at the request of any Lender (or
permitted
assignee or Participant), the Issuing Bank, the FI Trustee or the Administrative
Agent, promptly furnish to such Lender (or permitted assignee or Participant),
the Issuing Bank, the Collateral Agent, the Security Agent, the FI Trustee
or
the Administrative Agent any other information, documents and receipts
that such
Lender (or permitted assignee or Participant), the Issuing Bank, the Collateral
Agent, the Security Agent, the FI Trustee or the Administrative Agent may
require to establish to its satisfaction that full and timely payment has
been
made of all Indonesian Taxes required to be paid hereunder.
(l)
PTFI
will notify the Lenders (through the Administrative Agent) promptly upon
becoming aware of the application or imposition, or scheduled future application
or imposition, of Indonesian Taxes; and each Lender (if not theretofore
notified
by PTFI) will notify PTFI of any such application or imposition which becomes
known to its officers then supervising the Loans of such Lender hereunder
as
part of their normal duties, and of any change of its lending office or
establishment or closing of a branch in Indonesia by such Lender which
would
give rise to the application or imposition of Indonesian Taxes.
(m)
Each
Lender (or permitted assignee or Participant) having its principal office
and
applicable lending office outside of Indonesia (a “Non-Indonesian
Lender”)
shall
use reasonably diligent efforts to deliver to PTFI appropriate forms, duly
65
completed,
evidencing such Non-Indonesian Lender’s entitlement (if any) under any
applicable tax treaty to a reduced rate of withholding of Indonesian Taxes with
respect to payments of interest on Loans of such Non-Indonesian Lender
(which,
in the case of any Non-Indonesian Lender that is organized under the laws
of the
United States or any State thereof including the District of Columbia,
shall be
Internal Revenue Service Form 6166 (or any successor form thereto)) on or
prior to the 90th day following (A) the date hereof or (B) in the case
of any such Non-Indonesian Lender that is a permitted assignee or Participant,
the date such Non-Indonesian Lender becomes a permitted assignee or Participant;
provided
that in
the event a Non-Indonesian Lender is a disregarded entity for United States
federal income tax purposes, such Form 6166 shall be delivered by such
Lender’s
parent. Following delivery by a Non-Indonesian Lender to PTFI of the appropriate
form referenced in the preceding sentence of this Section 2.16(m), duly
completed, PTFI is authorized to file such form with the appropriate Indonesian
taxing authorities in order to obtain a reduced rate of withholding of
Indonesian Taxes with respect to payments of interest on Loans of such
Non-Indonesian Lender.
Each
Non-Indonesian Lender shall use reasonably diligent efforts to deliver
to PTFI
such certificates, forms or other documents as may be necessary under any
other
provision of applicable law (including any amendment, modification or supplement
to Form 6166 or such analogous form referred to in the second preceding
sentence) to reduce the withholding rate of Indonesian Taxes with respect
to
payments of interest on Loans of such Non-Indonesian Lender on or by the
90th
day following the date on which PTFI shall have delivered to such Non-Indonesian
Lender written notice of the existence of such provision of applicable
law
together with a copy thereof (accompanied by a verified English translation
if
such provision of applicable law is not in English); provided,
however,
that
such Non-Indonesian Lender shall not be required to deliver any such
certificate, form or other document that would, in the reasonable judgment
of
such Non-Indonesian Lender, be otherwise disadvantageous to such Non-Indonesian
Lender; and provided further
that such
Non-Indonesian Lender shall have no obligation to deliver any such certificates,
forms or other documents that it is not legally able to deliver or with
respect
to information deemed by such Non-Indonesian Lender to be confidential
or
proprietary.
If
any
Non-Indonesian Lender shall have failed to comply with the requirements
of this
Section 2.16(m) and the effect of such failure is to cause the rate of
withholding of Indonesian Taxes with respect to payments of interest on
such
Non-Indonesian Lender’s Loans to be higher than that which would have been
applicable had such certificates, forms or other documents been delivered
to the
applicable Indonesian taxing authority, then any withholding tax indemnity
payment to any such Non-Indonesian Lender by PTFI pursuant to this
Section 2.16 shall be computed as if such certificates, forms or other
documents had been so delivered.
SECTION
2.17. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs. (a)
Each
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
66
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 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 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
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 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 either 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 such Borrower or any Subsidiary or Affiliate thereof (as
to which
the provisions of this paragraph shall apply). Each 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 either Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender
were
a direct creditor of such Borrower in the amount of such
participation.
(d)
Unless
the Administrative Agent shall have received notice from a 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 such Borrower will not make
such
payment, the Administrative Agent may assume that such 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 such Borrower
has
not in fact made such payment, then each of the Lenders or such Issuing
Bank, as
67
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 either 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. Each 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 either 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 FCX
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 Borrowers 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 Borrowers
(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
68
such
consent and the fee required under Section 9.04(b)(ii)(C) shall have been
paid
by such assignee or by a 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
Borrowers 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 Borrowers 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 $50,000,000 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 Borrowers may borrow, prepay and reborrow
Swingline Loans.
(b)
To
request a Swingline Loan, a 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
a Borrower. The Swingline Lender shall make each Swingline Loan available
to the
Borrower that shall have requested such Swingline Loan by means of a credit
to
the general deposit account of such 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 an 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 Borrowers
of
any participations in
69
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 Borrowers (or other party on
behalf of
the Borrowers) 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 Borrowers 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 Borrowers of any default in the payment
thereof.
ARTICLE
III
Representations
and Warranties
Each
of
FCX and PTFI 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.
Each
Borrower, each Loan Party and each of FCX’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 each 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.
70
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 either 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
either
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 either
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)
FCX
has
heretofore furnished to the Lenders FCX’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 FCX and its
consolidated Subsidiaries as of such date and for such period in accordance
with
GAAP.
(b)
FCX
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)
FCX
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 FCX
to be reasonable), (ii) based on the information available at the time
of
preparation thereof, reasonably reflects the adjustments appropriate to
give pro
forma
71
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 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, FCX 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, FCX 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 FCX 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 FCX 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 FCX,
threatened against or affecting FCX 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 FCX 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.
72
(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.
FCX 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.
FCX 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
FCX 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, each 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 FCX 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 FCX and each
Subsidiary in, each Subsidiary of FCX (other than Immaterial Subsidiaries)
and
specifies whether each such Subsidiary is a Loan Party, in each case as
of the
Effective Date.
73
SECTION
3.13. Insurance.
Schedule
3.13 sets forth a description of all material insurance maintained by or
on
behalf of FCX 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. FCX believes that
the
insurance maintained by or on behalf of FCX and its Restricted Subsidiaries
is
adequate.
SECTION
3.14. Labor
Matters.
As of the
Effective Date, there are no strikes, lockouts or slowdowns against FCX
or any
Subsidiary pending or, to the knowledge of FCX, 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 FCX 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
74
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 or the Security Agent, as applicable,
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 PCA 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 favor
of the
Collateral Agent or the Security Agent, as applicable, in the Pledged PTFI
Shares and the Pledged PTII Shares, as applicable (i) in the case of each
of the
FCX Pledge Agreements, for the ratable benefit of the holders of the
Obligations, and (ii) in the case of each of the Third Amended and Restated
FCX/ISI Pledge Agreement (PTII Shares) and the Fourth Amended and Restated
FCX
Pledge Agreement (PTFI Shares), in addition for the ratable benefit of
the
holders of the Secured 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).
75
(e)
The
Liens created by the FI Security Documents will be in full force and effect
and
constitute first priority (except for Liens expressly permitted by Section
6.02), (i) upon execution of the FI Security Documents Amendments (and,
in the
case of the Fourth Amended and Restated Fiduciary Transfer, the Fiduciary
Assignment of Accounts, the Fiduciary Transfer of Joint Account Assets
and the
Fourth Amended and Restated Lender Fiduciary Assignment, upon registration
thereof at the Fiduciary Registration Office - Jakarta Region), perfected
security interests in favor of the FI Trustee, the FI Security Agent, the
Security Agent or the JAA Security Agent, as the case may be, for the ratable
benefit of the FI Secured Parties (other than RTF), in the property and
assets
stated to be subject to each such FI Security Document, and (ii) upon execution
thereof and registration thereof at the Fiduciary Registration Office -
Jakarta
Region, the Fourth Amended and Restated Lender Fiduciary Assignment will
be in
full force and effect and will constitute first priority (except for Liens
expressly permitted by Section 6.02), perfected security interests in favor
of
the Security Agent for the ratable benefit of the FI Secured Parties (other
than
RTF) in the Indebtedness owing to PTFI pledged thereunder.
(f)
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)
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 FCX, 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 FCX 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) FCX 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) FCX 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
amendment and restatement of the Existing Credit Agreement in the form
of this
Agreement and the obligations of the Lenders to make Loans and of the Issuing
Banks to issue, amend, renew or extend any
76
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
each
Borrower, confirming compliance with the conditions set forth in paragraphs
(a)
and (b) of Section 4.02.
(d)
The
Borrowers shall have repaid in full (i) the principal amount of all loans
outstanding under the Existing Credit Agreement, together with interest
thereon
and all other amounts due in respect of such loans, (ii) all unreimbursed
letter
of credit disbursements in respect of letters of credit issued under the
Existing Credit Agreement, (iii) all commitment fees accrued prior to the
Effective Date in respect of the commitments under the Existing Credit
Agreement, (iv) all fees separately agreed to be payable to X.X. Xxxxxx
Securities Inc. by the Borrowers in respect of the Existing Credit Agreement
and
(v) to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses (including fees, charges and disbursements of counsel) required
to be
reimbursed or paid by either Borrower under the Existing 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 Credit 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.
77
(h)
The
Lenders shall have received projections (broken down by quarter for the
first
year and by year thereafter) of FCX 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 Borrowers 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
Borrowers 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 Borrowers, 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 each Borrower and (ii) the results of a lien search
with
respect to each PCA Loan Party in the jurisdiction where such PCA 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 FCX, certifying as to the solvency (within the meaning
of
Section 3.17) of FCX 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 Credit Agents on November
18,
2006, in a manner material and adverse to the Lenders without the consent
of the
Credit Agents). The Credit 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
FCX 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.
78
(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
Parent 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 Borrowers 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 Parent 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 FCX 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 revolving
commitments under the Parent 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.
(u)
The FI
Trustee shall have received opinions to the effect that it does not have
to
qualify to do business in Louisiana or Indonesia by virtue of the Loan
Documents
or the activities contemplated thereby.
79
The
Administrative Agent shall promptly notify the Borrowers 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
FCX, PD or their respective subsidiaries in the Merger Agreement as are
material
to the interests of the Lenders (but only to the extent that FCX 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.
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)
and (b) 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, each Borrower covenants and agrees with the
Lenders
and the Administrative Agent that:
SECTION
5.01. Financial
Statements and Other Information.
FCX will
furnish to the Administrative Agent and each Lender for each of FCX and
PTFI
(for purposes of this Section 5.01, each of FCX and PTFI is referred to
as a
“Reporting
Person”):
(a)
within
95 days after the end of each fiscal year of such Reporting Person, beginning
with fiscal year 2007, an audited consolidated balance sheet of such Reporting
Person and its consolidated Subsidiaries and related consolidated statements
of
income, stockholders’ equity and cash flows as of the end of and for
80
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 such Reporting Person and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied; provided
that PTFI
shall only be required to furnish such audited reports for any fiscal year
to
the extent otherwise available, and if such audited reports are not otherwise
available for any fiscal year, PTFI shall instead within 95 days after
the end
of such fiscal year, furnish an unaudited consolidated balance sheet of
PTFI and
its consolidated Subsidiaries and related unaudited 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 certified by one of its Financial Officers as presenting
fairly
in all material respects the financial condition and results of operations
of
PTFI 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;
(b)
within
50 days after the end of each of the first three fiscal quarters of each
fiscal
year of such Reporting Person, an unaudited consolidated balance sheet
of such
Reporting Person 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 such Reporting Person 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 of FCX under clause
(a)
or (b) above, a certificate of a Financial Officer of FCX (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, (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, and (vi) certifying
as to
compliance
81
with
all
Exchange Filing Requirements or specifying the details of any noncompliance
and
any action taken or proposed to be taken with respect thereto;
(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 FCX, 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 either
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;
(g)
in the
case of PTFI, (x) copies to the Administrative Agent of all notices alleging
or
claiming a breach or default or with respect to any matter which could
reasonably be expected to have a material adverse effect upon the FI Collateral
and Rights (i) by or to Indonesian Governmental Authorities in connection
with
the FI Project or pursuant to the Contract of Work or the Memorandum of
Understanding or (ii) by or to or from its stockholders alleging or claiming
a
breach or default relating to their shareholding in PTFI or with respect
to any
other matter, and (y) a copy of any proposed amendment to the Contract
of Work
or Memorandum of Understanding prior to execution and delivery thereof;
and
(h)
promptly following any request therefor, such other information regarding
the
operations, business affairs and financial condition of such 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, FCX 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 FCX or any Subsidiary
thereof that would reasonably be expected to result in a Material Adverse
Effect;
82
(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 FCX 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.
FCX will
furnish to the Administrative Agent and the Collateral Agent prompt written
notice of any change (i) in any PCA Loan Party’s legal name, (ii) in any PCA
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 PCA Loan Party’s organization. FCX 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.
Each
Borrower will, and will cause each Restricted Subsidiary 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.
Each
Borrower will, and will cause each Restricted Subsidiary 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) such Borrower or such Restricted
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, each Borrower will,
and will
cause each Restricted Subsidiary 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.
Each
Borrower will, and will cause each Restricted Subsidiary to, maintain,
with
financially sound and reputable insurance companies (a) 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
83
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, FCX will furnish to the Administrative
Agent prompt written notice of any casualty or other insured damage to
any
material portion of any 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.
Each
Borrower will, and will cause each Restricted Subsidiary to, keep proper
books
of record and account sufficient to permit the preparation of financial
statements in accordance with GAAP. Each Borrower will, and will cause
each
Restricted Subsidiary 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 Borrowers’ 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 Borrowers at any time during normal business hours and upon
reasonable advance notice. The Administrative Agent and the Lenders shall
give
each Borrower the opportunity to participate in any discussions with such
Borrower’s independent accountants.
SECTION
5.10. Compliance
with Laws; Environmental Reports. (a)
Each
Borrower will, and will cause each Subsidiary to, (i) 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 and (ii) comply with all Exchange Filing Requirements.
(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, each Borrower
will, and will cause each Subsidiary 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
Borrowers and the 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 either Borrower is
in
default of its obligations under this paragraph, the Borrowers will, at
the
request of the Required
84
Lenders
through the Administrative Agent, provide to the Lenders within 60 days
after
such request, at the expense of the Borrowers, 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)
Each
Borrower will in good faith and with commercially reasonable efforts, and
will
similarly cause each Subsidiary 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, PTFI will 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, PTFI
will
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)
Each
Borrower will, and will cause each Restricted Subsidiary 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, FCX
will, at
the Borrowers’ 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. Each Borrower will, and will
cause
each Restricted Subsidiary 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 Credit 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 Revolving Loans may be used to (A) pay a portion of the cash
portion
of the Merger Consideration and (B) pay a portion of the Transaction Costs.
Letters of Credit and the proceeds of other Revolving Loans and Swingline
Loans
drawn on and after the Effective
85
Date
will
be used for working capital and other general corporate purposes of the
Borrowers and their 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, FCX 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, the Security 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 a Borrower
or,
after the Additional Collateral Date, any other PCA Loan Party.
SECTION
5.13. Further
Assurances. (a)
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
Security 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. Each Borrower also agrees
to
provide to the Administrative Agent, the Security Agent or the Collateral
Agent,
from time to time upon reasonable request, evidence reasonably satisfactory
to
the Collateral Agent or Security Agent, as applicable, as to the perfection
and
priority of the Liens created or intended to be created by the Security
Documents or the FI Security Documents.
(b)
If any
material assets (including any real property or improvements thereto or
any
interest therein) are acquired by PTFI after the Effective Date (other
than (i)
assets constituting Collateral under the Security Documents that become
subject
to the Lien of the Security Documents upon acquisition thereof and (ii)
assets
that are subject to a Lien permitted by Section 6.02(c), (d), (e), (f),
(g),
(j), (k), (o) or (p) hereof (or to the extent relating to Liens permitted
by
such Sections, Section 6.02(i) hereof), but only so long as such assets
are
subject to such Liens), PTFI will notify the Administrative Agent, the
Security
Agent and the Lenders thereof, and, if requested by the Administrative
Agent,
the Security Agent or the Required Lenders, PTFI will cause such assets
to be
subjected to a Lien securing the Obligations and will take such actions
as shall
be necessary or reasonably requested by the Administrative Agent or the
Security
Agent to grant and perfect such Liens, including actions described in
paragraph (a) of this Section, all at the expense of the Loan
Parties.
(c)
PTFI
at all times will comply with the provisions of the FI Security Documents
and
maintain in full force and effect all the rights, powers and benefits of
the FI
Trustee, the FI Security Agent, the Security Agent and the JAA Security
Agent,
as applicable, under the FI Security Documents in accordance with their
terms,
including (i) the validity and effectiveness of the powers of attorney
granted
by the Surat Kuasa, the
86
Fourth
Amended and Restated Lender Surat Kuasa and the fiduciary transfers effectuated
by the Fourth Amended and Restated Fiduciary Transfer, the Fiduciary Assignment
of Accounts, the Fourth Amended and Restated Lender Fiduciary Assignment
and the
Fiduciary Transfer of Joint Account Assets and (ii) maintenance of the
security
interest of the FI Trustee, the Security Agent and the JAA Security Agent,
as
applicable, in the collateral required to be subjected to the Liens created
by
the FI Security Documents as a perfected first priority security interest
as
provided therein, subject only to Liens expressly permitted by Section
6.02.
SECTION
5.14. Source
of Interest.
PTFI
(a) will conduct its business so that interest paid on the Loans by PTFI to
any Lender (or permitted assignee or Participant) which is not a “related
person” to PTFI within the meaning of Section 861(c)(2)(B) of the Code as
in effect on the Effective Date will be deemed to be income from sources
without
the United States within the meaning of Sections 861(a)(1)(A) and 861(c) of
the Code as in effect on the Effective Date and (b) will use its best
efforts (without undue cost) to conduct its business so that interest paid
on
the Loans of PTFI to any Lender (or permitted assignee or Participant)
which is
not a related person to PTFI within the meaning of Section 861(c)(2)(B) of
the Code (as it may be amended or substituted after the Effective Date)
will be
deemed to be income from sources without the United States within the meaning
of
Sections 861(a)(1)(A) and 861(c) of the Code (as it may be amended or
substituted for after the Effective Date).
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, each Borrower covenants and agrees with the Lenders, the Agents
and
the FI Trustee that:
SECTION
6.01. Indebtedness;
Certain Equity Securities. (a)
Each
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 Parent Credit Agreement and the “Loan Documents” thereunder, and (C) (1)
Ratable Guarantees of Ratable FCX Obligations by the PCA 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 FCX to any Restricted Subsidiary and of any Restricted
Subsidiary to FCX or any other Restricted Subsidiary; provided that any
such Indebtedness (A) owing to FCX or, at any time on and after the Additional
Collateral Date, owing to any PCA 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 and shall
have
been pledged pursuant to the Collateral Agreement or the
87
Additional
Collateral Agreement, as applicable, and (B) owing to PTFI, 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 Fourth Amended and Restated
Lender
Fiduciary Assignment and/or the Lender Security Agreement Fourth Amendment,
as
applicable;
(iv)
secured or unsecured Indebtedness of FCX 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 of the Parent Credit Agreement;
(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)
88
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 Revolving Commitments and the Term Loans
and
the revolving commitments under the Parent 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
Revolving Commitments and the Term Loans and the revolving commitments
under the
Parent 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)
FCX
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.
Each
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 and the Secured Obligations; and 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);
(b)
Permitted Encumbrances;
(c)
any
Lien on any property or asset of FCX 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 FCX or any
Restricted
89
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 FCX 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 deminimis 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 FCX 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 FCX 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 FCX 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 FCX 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 providedfurther,
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 FCX 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
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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 FCX 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)
Each
Borrower will not, and will not 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
91
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)
Each
Borrower will not, and will not 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, (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 FCX determines
in good faith that such liquidation or dissolution is in the best interests
of
FCX and is not materially disadvantageous to the Lenders, (iii) any Restricted
Subsidiary may merge into PTFI in a transaction in which the surviving
entity is
PTFI and (iv) PTFI may engage in a transaction permitted under Section
9.18(c);
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).
92
(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)
Each
Borrower will not, and will not permit any Restricted Subsidiary to, engage
to
any material extent in any business other than businesses of the type conducted
by FCX and its Restricted Subsidiaries on the Effective Date and businesses
reasonably related thereto.
SECTION
6.04. Investments
in Unrestricted Subsidiaries.
Each
Borrower will not, and will not permit any Restricted Subsidiary 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, FCX 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
of FCX 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)
Each
Borrower will not, and will not permit any Restricted Subsidiary to, sell,
transfer, lease or otherwise dispose of all or substantially all the assets
of
FCX and the Restricted Subsidiaries.
(b)
Each
Borrower will not, and will not permit any Restricted Subsidiary to, sell,
transfer, lease or otherwise dispose of any asset, including any Equity
Interest
owned by it, nor will FCX 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 a 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;
93
(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) of the Parent Credit Agreement; 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 PCA 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
|
94
|
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, and PTFI will not, and will not permit any of its
subsidiaries (other than Unrestricted Subsidiaries) to, sell, transfer,
lease or
otherwise dispose of any significant operating assets, or (except in connection
with a Project Financing or sale and leaseback transaction permitted by
Section
6.06 that is Non-Recourse Indebtedness) any assets subject to any Lien
under any
of the FI Security Documents to any other Person;
(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 Revolving
Commitments
and the Term Loans and the revolving commitments under the Parent
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 Revolving Commitments and the Term Loans and the revolving
commitments under the Parent Credit Agreement shall be no greater
than the
amount equal to $8,000,000,000 minus
the
Core Net Proceeds; and
|
95
(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.
Each
Borrower will not, and will not permit any Restricted Subsidiary 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 such 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 Revolving Commitments and the Term Loans
and
the revolving commitments under the Parent 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
Revolving Commitments and the Term Loans and the revolving commitments
under the
Parent 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.
Each
Borrower will not, and will not permit any Restricted Subsidiary 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 FCX 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)
FCX
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
96
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 5½% 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)
Each
Borrower will not, and will not 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;
97
(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 PCA
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)
payments of Indebtedness created under the Parent Credit Agreement and
the “Loan
Documents” thereunder.
SECTION
6.09. Transactions
with Affiliates. (a)
Each
Borrower will not, and will not 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 such 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 FCX, (ii) transactions among FCX and its Restricted
Subsidiaries and (iii) any Restricted Payment permitted by
Section 6.08.
(b)
PTFI
will not make any contribution or transfer of any substantial portion of
its
assets, the Contract of Work or any rights thereunder to FCX, any Restricted
Subsidiary or any other Affiliate other than (i) cash dividends permitted
to be
paid to FCX pursuant to Section 6.08(a), and (ii) transfers of Block B
Assets in
permitted Project Financings.
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SECTION
6.10. Restrictive
Agreements.
Each
Borrower will not, and will not 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 Borrowers or any Restricted Subsidiary to create, incur
or permit
to exist any Lien to secure the Obligations and the Secured 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
Borrowers or any other Restricted Subsidiary or to Guarantee Indebtedness
of the
Borrowers 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 Parent 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 PTFI or any PCA 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.
Each
Borrower will not, and will not 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
99
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 or to have an adverse effect in any significant respect upon
the FI
Collateral and Rights.
SECTION
6.12. Fiscal
Year.
FCX will
not change its fiscal year to end on any date other than
December 31.
SECTION
6.13. Designation
of Unrestricted Subsidiaries. (a)
FCX
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 FCX 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)
FCX
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 of FCX 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 by a PCA Loan Party shall be released unless each Ratable
Guarantee by such PCA Loan Party shall be released upon the release of
such PCA
Loan Party’s Guarantee of the Secured Obligations.
(b)
FCX
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
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(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) FCX 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
FCX) of
the net assets of such Subsidiary at the time of such RS Designation and
(ii) FCX 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 FCX 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)), FCX will not, without the approval of the Required 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)), FCX will not, without the approval of the Required 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 Obligations and the
Secured
Obligations pursuant to a pledge agreement satisfactory to the Collateral
Agent;
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(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.
SECTION
6.17. Covenants
Relating to the RTZ Transactions.
Neither
Borrower will, directly or indirectly enter into any amendment or modification
of (i) the Participation Agreement (including the Financial and Accounting
Procedures thereunder) in each case from and after the Effective Date or
(ii) any other material agreement in connection therewith, at any time, in
each case other than pursuant to documents approved by the Required Lenders
which would (or could reasonably be expected to) have an adverse effect
upon the
FI Collateral and Rights or impair the ability of either Borrower or any
Restricted Subsidiary to perform all of their respective obligations under
the
Loan Documents (including under this Section 6.17). Without the prior
written approval of the Required Lenders, PTFI shall not (a) consent to (I)
any “Closedown” (as such term is defined in the Participation Agreement) or any
amendment or modification of such term, (II) any amendment, modification
or
waiver of Section 7.5.1.1, 7.5.1.3 or 10.5 or Annex A of the Participation
Agreement, or (III) any amendment, modification or waiver of any RTZ Document
that could, directly or indirectly, result in a significant reduction of
Block A
Base Production in any annual period (other than any adjustments to Block
A Base
Production effected in accordance with Section 16.4.2 of the Participation
Agreement as in effect on the date hereof as a result of the occurrence
of any
of the causes referred to in Section 16.4.1 of the Participation Agreement
as in
effect on the date hereof or similar force majeure events), (b) consent to
any assignment by RTZ or PT-Rio Tinto Indonesia of the RTZ Documents or
their
respective obligations thereunder, (c) waive any material default by RTZ
under the RTZ Documents, (d) agree to any reduction in annual production
from
Contract Block A (as defined in the Contract of Work), other than annual
production from Greenfield Projects and Sole Risk Ventures (as such terms
are
defined in the Participation Agreement), which might foreseeably result
in PTFI
receiving cashflow after payment of all Operating Costs attributable to
it which
would not be sufficient to pay in full all its obligations, including under
the
Privatization Agreements (as such term is defined in the Participation
Agreement) and the Loan Documents, as and when they are likely to come
due, (e)
amend or agree to any amendment of any agreement to which the Administrative
Agent has not also agreed if, as a result of such amendment, a term defined
in
the FI Intercreditor Agreement or the Side Letter by reference to a term
defined
in such amended agreement would be changed
102
or
(f)
resign as the Operator under the Participation Agreement. Subject to the
penultimate sentence of this Section 6.17, PTFI and its Restricted
Subsidiaries shall not cause or permit any assets of it or its Restricted
Subsidiaries to be or become Joint Account Assets under the Participation
Agreement for other than full fair market compensation, nor shall either
Borrower grant or provide (or permit any Restricted Subsidiary to grant
or
provide) any additional security or collateral to secure any obligation
to RTZ
or its Affiliates other than the transfer of the RTZ Interests as required
by the Participation Agreement, in each case subject to the terms of the
FI Intercreditor Agreement and the FI Trust Agreement. PTFI and its
Restricted Subsidiaries shall not engage in any transaction (other than
the RTZ
Transactions) or dealing with, or assign or transfer any assets to, PT-Rio
Tinto
Indonesia or any of its Affiliates other than on an arm’s-length basis. PTFI
shall promptly provide to the Administrative Agent copies of (i) all amendments,
modifications, waivers and supplements to the RTZ Documents, (ii) all annual
financial reports and budgets pursuant to the Participation Agreement and
(iii)
all other material notices and reports under the RTZ Documents. PTFI shall
also conduct Joint Operations (as defined in the Participation Agreement)
in a
manner which does not prevent or adversely affect, and at all times shall
retain
rights under the Contract of Work and tangible assets sufficient for, Block
A
Base Production pledged to the Lenders.
ARTICLE
VII
Events
of Default
If
any of
the following events (“Events
of Default”)
shall
occur:
(a)
either
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)
either
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 either
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)
either
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
either Borrower) or in Article VI or Section 9.15;
(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
103
for
a
period of 30 days after notice thereof from the Administrative Agent to FCX
(which notice will be given at the request of any Lender);
(f)
(i) an
“Event of Default” shall exist under the Parent Credit Agreement; (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, PTFI 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
either 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 either 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 either Borrower or any Restricted
Subsidiary to enforce any such judgment;
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(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 or FI 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 or on any material amount of
“Collateral” under any FI Security Document, with the priority required by the
applicable Security Document or FI Security Document, as the case may be,
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 or Security 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;
(p)
the
security interest in the Contract of Work granted in the FI Trust Agreement
or
under any FI Security Document shall be deemed to be invalid or fail to
be in
full force and effect or the Contract of Work shall be terminated or otherwise
fail to be in full force and effect or shall be amended without the consent
of
the Required Lenders in any manner which materially and adversely affects
the
rights and benefits granted to the FI Trustee and the Lenders under the
FI
Security Documents; or the Ministry of Mines and Energy of Indonesia (or
any
successor entity) or the Government of Indonesia shall have taken any action
in
contravention of the Contract of Work which materially adversely affects
PTFI’s
ability to perform its obligations under this Agreement or the rights and
benefits granted to the FI Trustee under any FI Security Document;
(q)
PTFI
shall resign as “Operator” under the Participation Agreement or an “Event of
Resignation” under the Participation Agreement (or any event or condition which
with or without the passage of time or the giving of notice would constitute
such an “Event of Resignation” (other than any event or condition that is an
Event of Default hereunder)) shall occur and be continuing; or
(r)
a
Change in Control shall occur;
then,
and
in every such event (other than an event with respect to either 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 shall, by notice to the Borrowers,
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
105
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 Borrowers
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 each Borrower and (iii) exercise any or all the remedies
then available under the Security Documents; and in case of any event with
respect to either 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 Borrowers 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 each Borrower.
ARTICLE
VIII
The
Agents and the FI Trustee
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
(including in its capacity as Operator Selection Representative under the
Operator Replacement Agreement), (b) JPMCB as Collateral Agent for the
Lenders,
the Agents and the Issuing Banks under this Agreement and the other Loan
Documents, (c) JPMCB as Security Agent for the Lenders, the Agents and
the
Issuing Banks under this Agreement and the other Loan Documents, (d) JPMCB
as
JAA Security Agent for the Lenders, the Agents and the Issuing Banks under
this
Agreement and the other Loan Documents, (e) Xxxxxxx as the Syndication
Agent for
the Lenders, the Agents and the Issuing Banks under this Agreement and
the other
Loan Documents, and (f) U.S. Bank National Association to act as FI Trustee
for
the Lenders under the FI Trust Agreement and the Operator Replacement Agreement
and as FI Security Agent for the Lenders under the Surat Kuasa and the
Fiduciary
Assignment of Accounts. Each Lender, each Agent and each Issuing Bank (x)
confirms and agrees to be bound by the terms of the FI Trust Agreement,
the FI
Intercreditor Agreement, the Side Letter and the other Loan Documents and
(y)
agrees that the FI Trustee in accepting its appointment and in acting under
the
FI Trust Agreement, the Operator Replacement Agreement, the Surat Kuasa
and the
Fiduciary Assignment of Accounts shall be entitled to all the rights,
immunities, privileges, protections, exculpations, indemnifications, liens
and
other benefits applicable to its acting as trustee under the FI Trust Agreement.
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,
the
Security Agent, the JAA Security Agent, the Syndication Agent and the FI
Trustee
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
FI Trustee, 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
Borrowers or any Subsidiary or other Affiliate thereof as if it were not
an
Agent or the FI Trustee.
106
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 either 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 Parent 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 either 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, the
Collateral Agent, the Security Agent, the FI Security Agent and the JAA
Security
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,
the
Collateral Agent, the Security Agent, the FI Security Agent and the JAA
Security
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, the Collateral Agent, the Security Agent, the FI
Security
Agent and the JAA Security 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,
107
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 Borrowers), 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 Borrowers. Upon any such resignation by the
Administrative Agent or the Collateral Agent, the Required Lenders shall
have
the right, in consultation with the Borrowers, to appoint a successor
Administrative Agent or Collateral Agent (subject to the approval of the
Required Lenders under the Parent Credit Agreement), Security Agent or
JAA
Security Agent, 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,
Collateral Agent, Security Agent or JAA Security 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,
the Collateral Agent, the Security Agent or the JAA Security Agent, as
the case
may be, hereunder by a successor, such successor Administrative Agent,
Collateral Agent, Security Agent or JAA Security 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 Borrowers to
a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrowers 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
108
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, Security Agent,
JAA
Security Agent, the FI Trustee, the FI Security 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, the Collateral Agent, Security Agent
and the
JAA Security Agent will not, except as contemplated by this paragraph,
consent
to any modification, supplement or waiver of any Security Document and
the FI
Trustee will not consent to any modification, supplement or waiver of the
FI
Trust Agreement, the Operator Replacement Agreement, the Surat Kuasa or
the
Fiduciary Assignment of Accounts. 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, the Collateral Agent, the Security
Agent, the JAA Security Agent, the FI Security Agent and the FI Trustee
will, at
the request of FCX or PTFI, 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, the Collateral Agent,
the
Security Agent, the JAA Security Agent, the FI Security Agent or the FI
Trustee,
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.
The
Administrative Agent is hereby authorized to, and to instruct the FI Trustee
and
the JAA Security Agent to, enter into or consent to an amendment to the
Participation Agreement or other RTZ Documents permitting PTFI to incur
Indebtedness of the type permitted by Section 6.01(a)(iv) or Section 6.01(a)(v)
hereof without the necessity of the holders of such Indebtedness becoming
party
to the Side Letter. Such amendment or consent will not require any further
consent of the Required Lenders.
109
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
either 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,
110
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 a 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.
Any
notice delivered to FCX shall be deemed also to have been given to PTFI,
and
such notice shall be deemed to have been given to PTFI on the day it is
deemed
to have been given to FCX.
SECTION
9.02. Waivers;
Amendments. (a)
No
failure
or delay by any Agent, the FI Trustee, 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
FI Trustee, 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, the FI Trustee, 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
each 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
111
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
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
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,
additional extensions of credit or revolving commitments pursuant to this
Agreement may be included in the determination of the Required Lenders
on
substantially the same basis as the 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, or
(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;
provided
further
that (A)
no such agreement shall amend, modify or otherwise affect the rights or
duties
of any Agent, the FI Trustee, any Issuing Bank or the Swingline Lender
without
the prior written consent of such Agent, the FI Trustee, 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;
and (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.
Notwithstanding the foregoing, any provision of this Agreement may be amended
by
an agreement in writing entered into by the Borrowers, 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.
112
SECTION
9.03. Expenses;
Indemnity; Damage Waiver. (a)
Each
Borrower agrees to pay (i) all reasonable out-of-pocket expenses incurred
by each Agent and its Affiliates and the FI Trustee, 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, the FI Trustee, 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)
Each
Borrower agrees to indemnify each Agent, each Lender and each Issuing Bank,
the
FI Trustee 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 either Borrower or any of its Subsidiaries,
or any
Environmental Liability related in any way to either 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 either 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 either Borrower fails to pay any amount required to be paid
by it to
any Agent, the FI Trustee or any Issuing Bank under paragraph (a) or
(b) of this Section (but without affecting such Borrower’s obligations
thereunder), each Lender severally agrees to pay to the applicable Agent,
the FI
Trustee or the applicable Issuing Bank, as the case may be, such Lender’s pro
rata share (determined as of the time that the applicable unreimbursed
expense
or indemnity payment is sought) of such unpaid
113
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,
the
FI Trustee or such Issuing Bank, as the case may be, in its capacity as
such.
For purposes hereof, a 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, the FI Trustee, any Issuing Bank or other Person indemnified or
intended
to be indemnified pursuant to this Section 9.03, PTFI and 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 PTFI and FCX (which counsel shall be
satisfactory to such Lender, such Agent, the FI Trustee, such Issuing Bank
or
other Person indemnified or intended to be indemnified). If PTFI or 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 PTFI or FCX contained in this
Agreement shall be breached, any Lender, the FI Trustee, 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, the FI Trustee, any Issuing Bank or
any Agent
shall be repayable to it by PTFI and FCX immediately upon such Person’s demand
therefor.
(d)
To the
extent permitted by applicable law, neither Borrower shall assert, and
each
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) a 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 a 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;
provided
that a
rejurisdictioning transaction permitted by Section 9.18(c) shall not require
the
consent of any Lender under this Section 9.04 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 FI Trustee, 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
114
unreasonably
withheld or delayed, it being understood that the Borrowers may withhold
their
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
Borrowers, the Swingline Lender and each Principal Issuing Bank; provided
that no
consent of either 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.
(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 unless each
of
the Borrowers and the Administrative Agent otherwise consent; provided
that no
such consent of either 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.
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“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 Borrowers,
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 Borrowers, the Agents,
the
FI Trustee, 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 Borrowers, any Agent,
the FI
Trustee, 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 either Borrower, the Administrative Agent or the assignee
under
an Assignment and Assumption, each of the Borrowers, 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 Borrowers, 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
116
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 Borrowers, the Agents, the FI Trustee, 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 Borrowers
agree 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 Borrowers’ 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 Borrowers are notified of the
participation sold to such Participant and such Participant agrees, for
the
benefit of the Borrowers, to comply with Section 2.16(f) as though it were
a Lender.
(d)
Any
Lender may, without the consent of the Borrowers 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, the FI Trustee, 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
117
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 (subject to Section 9.22(A)) supersede
any and
all previous agreements and understandings, oral or written, relating to
the
subject matter hereof. Except as provided in Section 4.01 and 9.22(A), 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 either Borrower against
any of
and all the obligations then due of either Borrower now or hereafter existing
under this Agreement. The applicable Lender or Issuing Bank shall notify
the
Borrowers 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)
Each
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
118
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,
the
FI Trustee, 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 either Borrower or its properties in the courts of any
jurisdiction.
(c)
Each
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.
(e)
To the
extent that PTFI may now or hereafter be entitled, in any jurisdiction
in which
judicial proceedings may at any time be commenced with respect to any Loan
Document, to claim for itself or its property, assets or revenues any immunity
(whether by reason of sovereignty or otherwise) from suit, jurisdiction
of any
court, attachment prior to judgment, setoff, execution of a judgment or
from any
other legal process or remedy, and to the extent that there may be attributed
to
PTFI such an immunity (whether or not claimed), PTFI hereby irrevocably
agrees
not to claim and hereby irrevocably waives such immunity.
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 FI Trustee, 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,
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
119
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 either Borrower or any other Loan Party and its obligations,
(g) with the consent of the Borrowers 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
either
Borrower. For the purposes of this Section, “Information”
means
all information received from or on behalf of either Borrower relating
to either
Borrower or its business, other than any such information that is available
to
any Agent, the FI Trustee, any Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by either 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, the FI Trustee 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 a Borrower under this Agreement or any
other
Loan Document shall not be discharged by an amount paid by such 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
120
dollars
with the second currency on the Business Day next preceding that on which
such
judgment is rendered. The obligation of a Borrower in respect of any such
sum
due from such Borrower to any Agent, the FI Trustee, 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 each 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
such
Borrower in dollars and the amount of dollars so purchased and
transferred.
SECTION
9.15. RTZ
Transactions.
PTFI has
appointed the Administrative Agent to be the Operator Selection Representative
for all purposes of the FI Trust Agreement, the Operator Replacement Agreement
and the Surat Kuasa and has irrevocably and unconditionally agreed that
upon the
occurrence of an Event of Default, the Administrative Agent may, in addition
to
any other remedy available thereunder or under any other Loan Document
thereunder, remove PTFI as Operator under the Contract of Work and appoint
a
replacement Operator, which shall be PT Rio Tinto Indonesia or an Affiliate
of
PT Rio Tinto Indonesia designated by PT Rio Tinto Indonesia if PT Rio Tinto
Indonesia timely elects to exercise its designation rights provided in
Section
2(a) of the Operator Replacement Agreement and meets the other conditions
to
such designation right set forth in such Section 2(a). PTFI has also irrevocably
and unconditionally agreed that the Administrative Agent, acting as the
Operator
Selection Representative under the FI Trust Agreement, the Operator Replacement
Agreement and the Surat Kuasa, shall also have the right to designate a
successor Operator under the circumstances provided in Section 2(b) of
the
Operator Replacement Agreement. PTFI has further agreed that it will not
appoint
any other Operator Selection Representative other than the Administrative
Agent
(or, except as provided to PT Rio Tinto Indonesia in the Participation
Agreement, grant any other Person the right to remove PTFI (or any successor
operator for the Project) as Operator under any circumstances) and that
it will
not approve or enter into any management agreement with a successor Operator
appointed under the Operator Replacement Agreement unless and until the
Administrative Agent has approved the terms of such management agreement.
PTFI
has also agreed that the Administrative Agent shall be entitled to exercise
PTFI’s rights under the Participation Agreement (including the financial and
accounting procedures) referred to in Section 6(c) of the FI Intercreditor
Agreement to the exclusion of PTFI after the occurrence of an Event of
Default,
in addition to the other rights and remedies available to the Administrative
Agent and the Lenders under the Loan Documents thereunder and applicable
law.
Each of the Agents, the Lenders, PTFI and FCX acknowledges and agrees that
the
FI Trust Agreement will not terminate prior to termination of the Participation
Agreement
SECTION
9.16. Patriot
Act.
Each
Lender and the Administrative Agent (for itself and not on behalf of any
Lender)
hereby notifies each Borrower that pursuant to the requirements of the
Patriot
Act, it is required to obtain, verify and record information that identifies
each Borrower, which information includes the name and address of each
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. Each
Borrower agrees to provide the Lenders, upon request, with all
121
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
Borrowers, on behalf of themselves and the Subsidiaries, agree that in
connection with all aspects of the transactions contemplated hereby and
any
communications in connection therewith, the Borrowers, 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
Borrowers and at the Borrowers’ expense, the Collateral Agent, the Security
Agent, the JAA Security Agent and the FI Trustee, as applicable, shall
terminate
and release all the Collateral under the Security Documents (but not, unless
specifically requested by FCX in such notice, any Collateral under the
FI
Security Documents) and the Collateral Agent, the Security Agent, the JAA
Security Agent and the FI Trustee, as applicable, shall promptly execute
and
deliver all documents that the Borrowers 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. In the event that such
rejurisdictioning is effected, upon written notice from the Borrowers and
at the
Borrowers’ expense, the Collateral Agent shall terminate and release the
Guarantees provided under the Indonesian Guarantee Agreement by each of
PT
Kencana Infra Nusakarya and PT Kencana Wisata Nusakarya.
(d)
Any
execution and delivery of documents pursuant to this Section shall be without
recourse to or warranty by the Collateral Agent.
122
(e)
Notwithstanding any provision to the contrary herein or in any other Loan
Document, no Guarantee by a PCA Loan Party shall be released unless each
Ratable
Guarantee by the applicable PCA Loan Party shall be released upon the release
of
such PCA 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 Borrowers or on their behalf and relating to the Borrowers,
the Subsidiaries or their respective businesses may include material non-public
information concerning the Borrowers and the Subsidiaries 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 Borrowers 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 Borrowers and the Subsidiaries
and their securities. Accordingly, each Lender represents to the Borrowers
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 each of the FCX Pledge Agreements, the Fourth
Amended
and Restated Fiduciary Transfer, the Fiduciary Assignment of Accounts,
the
Fourth Amended and Restated Lender Fiduciary Assignment and the Fiduciary
Transfer of Joint Account Assets, and hereby authorize the Administrative
Agent,
Collateral Agent and Security Agent, as applicable, to accept such clauses
on
their behalf.
SECTION
9.21. Joint
and Several Obligations.
Whenever
in this Agreement or any other Loan Document any payment obligation or
other
obligation is expressed as an obligation of the Borrowers, each of the
Borrowers
shall be jointly and severally liable for the full payment and performance
of
such obligation.
SECTION
9.22. Agreements
under the Existing Credit Agreement.
The
signatories hereto constituting pursuant to Section 10.02(b) of the Existing
Credit Agreement (including the last sentence thereof) the required signatories
for amending and taking other actions under the Existing Credit Agreement
hereby
agree as follows:
(A)
|
The
Existing Credit Agreement shall be amended and restated in the
form hereof
effective upon the date on which each of the conditions set forth
in
Section 4.01 is satisfied (or waived in accordance with
Section 9.02). For the avoidance of doubt, the Existing Credit
Agreement shall remain in full force and effect until the occurrence
of
such satisfaction or waiver. Notwithstanding the foregoing, all
appointments of the Agents shall, from and after the execution
hereof by
the Administrative Agent and the delivery of counterparts hereof
by each
other party hereto in accordance with Section 9.06, be effective
hereunder
for all purposes of facilitating the satisfaction of such conditions
or
the obtaining of any such waiver.
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(B)
|
In
conjunction with the renewals of the currently existing Fiduciary
Certificate no. C2-128 HT.04.07.TH.2006P and no. C2-129
|
123
|
HT.04.07.TH.2006P,
both dated 29 August, 2006, in favor of the lenders under the
Existing
Credit Agreement who are Lenders hereunder, such Lenders hereby
authorize
the Security Agent and the FI Trustee to delete the registration
certificates stated above; to implement the foregoing, the
Security Agent
and the FI Trustee is hereby authorized by such Lenders with
power of
substitution, to sign, submit applications thereto and in general
to do
and carry out all things necessary or useful without
exemption.
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(C)
|
Upon
the effectiveness of the Collateral Agreement, the lenders under
the
Existing Credit Agreement who are Lenders hereunder hereby direct
and
authorize the Security Agent to release the debt instruments
pledged under
the Second Amended and Restated FCX Pledge Agreement (Indebtedness)
(as
defined in the Existing Credit Agreement) whereupon such debt
instruments
shall be pledged by FCX under the Collateral
Agreement.
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124
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
|
PT
FREEPORT INDONESIA,
|
||
by
|
||
Name: Xxxxxx
X. Xxxxx
|
||
Title: Treasurer
|
JPMORGAN
CHASE BANK, N.A., individually
and as Administrative Agent, Issuing Bank, Security Agent, JAA
Security
Agent and Collateral Agent,
|
||
by
|
||
Name:
|
||
Title:
|
XXXXXXX
LYNCH, PIERCE, XXXXXX
&
XXXXX INCORPORATED, as
Syndication Agent
|
||
by
/s/
|
||
Name:
|
||
Title:
|
U.S.
BANK NATIONAL ASSOCIATION, as
FI Trustee,
|
||
by
|
||
Name:
|
||
Title:
|
XXXXXXX
XXXXX CAPITAL CORPORATION
|
||
by
/s/
|
||
Name:
|
||
Title:
|
HSBC
BANK USA, NATIONAL ASSOCIATION
|
||
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., NASSAU BRANCH
|
||
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:
|