EXECUTION VERSION
EXECUTION
VERSION
JPMORGAN CHASE BANK, N.A.,
LENDER SIGNATURE PAGE TO
LENDER SIGNATURE PAGE TO
|
AMENDED
AND RESTATED CREDIT AGREEMENT
dated
as of
July
25, 2006,
which
amends and restates 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,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent, Issuing Bank, Security Agent, JAA Security
Agent
and
Syndication
Agent,
and
Citibank,
N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
and
The
Bank of Nova Scotia,
as
Co-Documentation Agents,
and
U.S.
BANK NATIONAL ASSOCIATION,
as
FI Trustee
___________________________
X.X.
XXXXXX SECURITIES INC.,
as
Sole Lead Arranger and Sole Bookrunner
|
TABLE
OF
CONTENTS
Page
ARTICLE
I
Definitions
SECTION
1.01. Defined
Terms
1
SECTION
1.02. Classification
of Loans and Borrowings 33
SECTION
1.03. Terms
Generally 33
SECTION
1.04. Accounting
Terms;
GAAP
33
ARTICLE
II
The
Credits
SECTION
2.01. Commitments 34
SECTION
2.02. Loans
and
Borrowings
34
SECTION
2.03. Requests
for
Borrowings
34
SECTION
2.04. Funding
of
Borrowings
35
SECTION
2.05. Letters
of
Credit 35
SECTION
2.06. Interest
Elections 39
SECTION
2.07. Termination
and Reduction of Commitments; Increase in
Commitments
40
SECTION
2.08. Repayment of
Loans 42
SECTION
2.09. Evidence
of
Debt 42
SECTION
2.10. Prepayment
of
Loans 43
SECTION
2.11. Fees 43
SECTION
2.12. Interest 44
SECTION
2.13. Alternate
Rate of
Interest 45
SECTION
2.14. Increased
Costs 45
SECTION
2.15. Break
Funding
Payments
47
SECTION
2.16. Taxes 47
SECTION
2.17. Payments
Generally; Pro Rata Treatment; Sharing of
Set-offs 50
SECTION
2.18. Mitigation
Obligations; Replacement of
Lenders
52
ARTICLE
III
Representations
and Warranties
SECTION
3.01. Organization;
Powers 53
SECTION
3.02. Authorization;
Enforceability
53
SECTION
3.03. Governmental
Approvals; No
Conflicts
53
SECTION
3.04. Financial
Condition; No Material Adverse
Change
53
SECTION
3.05. Properties
54
SECTION
3.06. Litigation
and Environmental
Matters
54
SECTION
3.07. Compliance
with Laws and
Agreements
54
SECTION
3.08. Investment
Company
Status
55
SECTION
3.09. Taxes
55
SECTION
3.10. ERISA
55
SECTION
3.11. Disclosure
55
SECTION
3.12. Subsidiaries 55
SECTION
3.13. Insurance
55
SECTION
3.14. Labor
Matters 55
SECTION
3.15. Security
Documents
56
SECTION
3.16. Assigned
Agreements
56
SECTION
3.17. Federal
Reserve
Regulations
56
ARTICLE
IV
Conditions
SECTION
4.01. Effective
Date 56
SECTION
4.02. Initial
Borrowing Availability
Date
58
SECTION
4.03. Each
Credit
Event 60
ARTICLE
V
Affirmative
Covenants
SECTION
5.01. Financial
Statements and Other
Information
60
SECTION
5.02. Notices
of Material
Events
62
SECTION
5.03. Information
Regarding
Collateral 63
SECTION
5.04. Existence;
Conduct of
Business
63
SECTION
5.05. Payment
of
Obligations
63
SECTION
5.06. Maintenance
of
Properties
63
SECTION
5.07. Insurance
63
SECTION
5.08. Casualty
and
Condemnation
64
SECTION
5.09. Books
and Records; Inspection and Audit
Rights
64
SECTION
5.10. Compliance
with Laws; Environmental
Reports
64
SECTION
5.11. Use
of
Proceeds and Letters of
Credit
65
SECTION
5.12. Additional
Subsidiaries
65
SECTION
5.13. Further
Assurances
65
SECTION
5.14. Concentrate
Sales
Agreements
66
SECTION
5.15. Source
of
Interest 66
ARTICLE
VI
Negative
Covenants
SECTION
6.01. Indebtedness;
Certain Equity
Securities
67
SECTION
6.02. Liens
69
SECTION
6.03. Fundamental
Changes
70
SECTION
6.04. Investments,
Loans, Advances, Guarantees and
Acquisitions
70
SECTION
6.05. Asset
Sales 72
SECTION
6.06. Sale
and Leaseback
Transactions
74
SECTION
6.07. Hedging
Agreements
74
SECTION
6.08. Restricted
Payments; Certain Payments of
Indebtedness
74
SECTION
6.09. Transactions
with
Affiliates
75
SECTION
6.10. Restrictive
Agreements
76
SECTION
6.11. Amendment
of Material Documents and Mirror
Notes
76
SECTION
6.12. Protection
of Contract
Rights
76
SECTION
6.13. Block
B
Projects 77
SECTION
6.14. Fiscal
Year
77
SECTION
6.15. Covenants
Relating to the RTZ
Transactions
77
SECTION
6.16. Specified
Transactions
78
SECTION
6.17. Designation
of Unrestricted
Subsidiaries
78
SECTION
6.18. Leverage
Ratio 80
SECTION
6.19. Interest
Expense Coverage
Ratio
80
SECTION
6.20. PTFI
Leverage
Ratio
80
SECTION
6.21. Covenants
with Respect to
PTII
80
ARTICLE
VII
Events
of
Default
ARTICLE
VIII
The
Agents and the FI Trustee
ARTICLE
IX
Guarantee
ARTICLE
X
Miscellaneous
SECTION
10.01. Notices
90
SECTION
10.02. Waivers;
Amendments
90
SECTION
10.03. Expenses;
Indemnity; Damage
Waiver
91
SECTION
10.04. Successors
and
Assigns
93
SECTION
10.05. Survival
96
SECTION
10.06. Counterparts;
Integration;
Effectiveness
96
SECTION
10.07. Severability
96
SECTION
10.08. Right
of
Setoff 96
SECTION
10.09. Governing
Law; Jurisdiction; Consent to Service of Process; Sovereign
Immunity
97
SECTION
10.10. WAIVER
OF JURY
TRIAL
97
SECTION
10.11. Headings
98
SECTION
10.12. Confidentiality
98
SECTION
10.13. Interest
Rate
Limitation
99
SECTION
10.14. Judgment
Currency
99
SECTION
10.15. Joint
and Several
Obligations
99
SECTION
10.16. RTZ
Transactions 100
SECTION
10.17. Patriot
Act 100
SECTION
10.18. No
Fiduciary
Relationship 100
SCHEDULES:
Schedule
1.01A—Disclosed Matters
Schedule
1.01B—Existing Letters of Credit
Schedule
1.01C—Description of Infrastructure Financings and Infrastructure Financing
Documents
Schedule
2.01 — Commitments
Schedule
3.07 — Significant Agreements and Commitments with Governmental
Authorities
Schedule
3.12 — Subsidiaries
Schedule
3.13 — Insurance
Schedule
3.16 — Assigned Agreements
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
6.04 — Existing Investments
Schedule
6.10 — Existing Restrictions
EXHIBITS:
Exhibit
A
— Form of Assignment and Assumption
Exhibit
B
— Form of Perfection Certificate
AMENDED
AND RESTATED CREDIT AGREEMENT dated as of July 25, 2006 (this “Agreement”),
which
amends and restates 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
(“FCX”),
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”
and,
together with FCX, the “Borrowers”),
the
Lenders party hereto, 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 (as defined below) (in such
capacity, the “FI
Trustee”),
and
JPMORGAN CHASE BANK, N.A., a national banking association (“JPMCB”),
as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”),
as
issuing bank (in such capacity, the “Issuing
Bank”),
as
security agent for the Lenders under the Lender Security Documents (as defined
below) (in such capacity, the “Security
Agent”),
and
as security agent for the Lenders and RTZ-IIL (as defined below) under the
Third
Amended and Restated JAA Fiduciary Transfer (as defined below) (in such
capacity, the “JAA
Security Agent”),
and
as syndication agent (in such capacity, the “Syndication
Agent”;
the
Administrative Agent, the Security Agent, the JAA Security Agent and the
Syndication Agent being collectively referred to herein as the “Agents”).
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 permit
FCX
and PTFI to obtain Loans hereunder in an aggregate principal amount outstanding
at any time not to exceed $465,000,000 (which principal amount may be increased
to an amount not in excess of $500,000,000 or decreased from time to time as
provided in Section 2.07). Such Loans will be utilized to refinance any
borrowings outstanding under the Existing Credit Agreement and for general
corporate purposes of the Borrowers. 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.
As used
in this Agreement, the following terms have the meanings specified
below:
“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.
“Accession
Agreement”
has
the
meaning assigned to such term in paragraph (d) of Section 2.07.
“Additional
Infrastructure Assets”
means
non-mining assets, other than Block B Assets and PT Kencana Assets but
including the Infrastructure Assets, transferred, sold, pledged, encumbered
or
otherwise disposed of by PTFI, in each case in accordance with the terms of
this
Agreement, in connection with one or more Additional Infrastructure
Financings.
“Additional
Infrastructure Financing Documents”
means
each of the operative documents relating to any Additional Infrastructure
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.
“Additional
Infrastructure Financing”
means
the financing by PTFI or a Restricted Subsidiary of Additional Infrastructure
Assets pursuant to the incurrence of Indebtedness secured by such assets or
the
incurrence of Attributable Debt in connection with a sale and leaseback
transaction involving such assets.
“Administrative
Agent”
means
JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the
Lenders hereunder.
“Administrative
Questionnaire”
means
an Administrative Questionnaire in a form supplied by the Administrative
Agent.
“Affiliate”
means,
with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
“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.
“Amended
and Restated FCX Pledge Agreement (Indebtedness)”
means
the Amended and Restated FCX Pledge Agreement (Indebtedness) stated in deed
number 7 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 Accounts stated in deed number 46 dated October
19,
2001) pursuant to which FCX granted a perfected first priority security interest
under Indonesian law in Indebtedness owing by PTFI or any other Restricted
Subsidiary to FCX, for the ratable benefit of the holders of the Obligations
(as
defined in the Existing Credit Agreement).
“Amended
and Restated FCX Pledge Agreement (PTFI Shares)”
means
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 the Pledged PTFI Shares for the ratable benefit
of the holders of the Obligations (as defined in the Existing Credit
Agreement).
“Amended
and Restated FCX Pledge Agreement (PTII Shares)”
means
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).
“Applicable
Percentage”
means,
with respect to any Lender, the percentage of the total Commitments represented
by such Lender’s Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the amount of each
Lender’s Loans, participations in outstanding Letters of Credit and unreimbursed
LC Disbursements.
“Applicable
Rate”
means,
for any day, the applicable rate per annum set forth below under the caption
(i)
“Eurodollar Spread”, in the case of a Eurodollar Loan, (ii) ”ABR Spread”,
in the case of an ABR Loan, and (iii) “Commitment Fee Rate”, in the case of the
commitment fees payable hereunder, in each case based upon the Credit Ratings
by
Xxxxx’x and S&P applicable on such date:
|
Credit
Ratings:
(S&P/Xxxxx’x)
|
Eurodollar
Spread
(bps
per annum)
|
ABR
Spread
(bps
per annum)
|
Commitment
Fee Rate
(bps
per annum)
|
|
Category
1
BB+/Ba1
or higher
|
150.0
|
50.0
|
37.5
|
|
Category
2
BB/Ba2
|
175.0
|
75.0
|
37.5
|
|
Category
3
BB-/Ba3
|
200.0
|
100.0
|
50.0
|
|
Category
4
B+/B1
|
225.0
|
125.0
|
50.0
|
|
Category
5
B/B2
or lower
|
250.0
|
150.0
|
50.0
|
For
purposes of the foregoing, (i) if either Xxxxx’x or S&P shall not have
in effect a Credit Rating (other than by reason of the circumstances referred
to
in the last sentence of this definition), then the Borrowers 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 Rating unless
one
of the two Credit Rating 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 Rating; 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, irrespective of
when notice of such change shall have been furnished by the Borrowers to the
Administrative Agent and the Lenders pursuant to Section 5.01 or otherwise.
Each
change in the Applicable Rate shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding
the
effective date of the next such change. If the rating system of Xxxxx’x or
S&P shall change, or if either such rating agency shall cease to be in the
business of rating corporate debt obligations, the Borrowers 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.
“Assigned
Agreements”
means
the Contract of Work and the Concentrate Sales Agreements.
“Assignment
and Assumption”
means
an assignment and assumption entered into by a Lender and an assignee (with
the
consent of any party whose consent is required by Section 10.04), 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”
means
Atlantic Copper, S.A., a Wholly Owned Subsidiary of FCX organized under the
laws
of Spain.
“Atlantic
Copper Facility”
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 either Borrower or any Restricted
Subsidiary entered into as part of an Infrastructure 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.
“Availability
Period”
means
the period from and including the Initial Borrowing Availability Date to but
excluding the earlier of the Maturity Date and the date of termination of the
Commitments.
“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
A Operations and Assets”
means
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 Block A.
“Block
B Assets”
means
assets now owned or hereafter acquired and utilized in connection with the
development and exploitation of Contract Area Block B (as defined in the
Contract of Work), including with respect to mining, concentrating, processing,
transportation, delivery and related operations (and assets used in connection
therewith) in respect of FI Product obtained or provided from Contract Area
Block B, but such term shall not in any event include Block A Operations and
Assets.
“Block
B Conditions”
means,
with respect to Block B Debt or Block B Projects including, but not limited
to, transfers or dispositions of Block B Assets or Liens on Block B Assets
relating thereto, the following conditions:
(X) any
such Block B Debt is Non-Recourse Indebtedness to PTFI, FCX and the
Restricted Subsidiaries except as to the Block B Assets (and income relating
thereto); and
(Y)
any
Block B Project relating to any such Block B Assets or Block B
Debt shall not (1) make use of any assets that constitute ore that were
originally extracted from or located in Block A or (2) unless the Required
Lenders otherwise consent in writing, make any other use of the Block A
Operations and Assets; provided,
however
that
such Lender consent shall not be required with respect to any such use of
Block A Operations and Assets relating solely to (i) shipping,
(ii) storage or warehouse facilities that are not used for storage of FI
Product, (iii) emergency-related uses, (iv) the administration or
management of Block A or (v) infrastructure projects involving
Block A, which use, either in cases requiring the consent of the Required
Lenders or in cases involving clauses (i) through (v) above, has been
approved in writing by the Administrative Agent as not, in the sole discretion
of the Administrative Agent, impairing or adversely affecting the FI Collateral
and Rights relating to the Block A Operations and Assets (and in cases
requiring the consent of the Required Lenders or in cases involving
clauses (i) through (v) above, the Administrative Agent shall
have received an opinion of counsel to PTFI reasonably satisfactory to the
Administrative Agent to such effect and as to the non-recourse nature of the
Block B Debt); provided
further,
that
(x) temporary, de minimis usage of Block A Operations and Assets that would
not in any way adversely affect the development, exploitation or operations
relating to Block A Operations and Assets or the FI Collateral and Rights and
(y) usage of Block A Operations and Assets that are not, and could not
reasonably be expected to be, required for Block A Base Production, shall
be permitted without the approval of the Administrative Agent or the Lenders.
Notwithstanding the foregoing, it is understood that any usage by the Borrowers
and any Restricted Subsidiary of non-mining assets in connection with any Block
B Project shall be permissible without the consent of the Administrative Agent
or the Lenders so long as such usage would not in any way adversely affect
scheduled Block A Base Production or the FI Collateral and Rights and so long
as
such Borrower or such Restricted Subsidiary has reasonably determined that
such
usage is in its best interest.
“Block
B Debt”
means
debt incurred for the purpose of developing or exploiting Contract Area
Block B or acquiring or financing Block B Assets.
“Block
B Project”
means
any project or transaction, including but not limited to any joint venture,
investment, sale, transfer or leasing of assets, sale leaseback transaction
or
financing, which involves the development or exploitation of Contract Area
Block
B or the acquisition, financing or disposition of Block B Assets, and shall
include all contracts and agreements relating to any such project or
transaction.
“Board”
means
the Board of Governors of the Federal Reserve System of the United States of
America.
“Borrower”
means
FCX and/or PTFI, as applicable.
“Borrowing”
means
Loans of the same 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.
“Borrowing
Request”
means
a
request by the Borrower for a Borrowing in accordance with
Section 2.03.
“Business
Day”
means
any day that is not a Saturday, Sunday or other day on which commercial banks
in
New York City are authorized or required by law to remain closed; provided
that,
when used in connection with a Eurodollar Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
“Capital
Expenditures”
means,
for any period, (a) the additions to property, plant and equipment and
other capital expenditures of each Borrower and its Restricted Subsidiaries
that
are (or would be) set forth in a consolidated statement of cash flows of such
Borrower for such period prepared in accordance with GAAP and (b) that
portion of principal payments on Capital Lease Obligations made by the Borrowers
and the Restricted Subsidiaries during such period that are attributable to
additions to property, plant and equipment and that have not otherwise been
reflected on the consolidated statement of cash flows as capital
expenditures.
“Capital
Lease Obligations”
of
any
Person means the obligations of such Person to pay rent or other amounts under
any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person
under GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
“Caterpillar”
means
PT Caterpillar Finance Indonesia, a limited liability company established under
the laws of Indonesia.
“Caterpillar
Assets”
means
assets leased to PTFI on the Effective Date under the Caterpillar
Lease.
“Caterpillar
Documents”
means
the documentation governing the Caterpillar Transaction, as in effect on the
Effective Date and as amended from time to time as permitted by Section
6.11.
“Caterpillar
Lease”
means
the Master Lease Agreement dated as of August 27, 2002 between Caterpillar
and
PTFI.
“Caterpillar
Obligations”
means
the obligations of PTFI to Caterpillar under the Caterpillar Lease outstanding
on the Effective Date and set forth in Schedule 6.01, substantially on the
terms set forth in the Caterpillar Documents (the “Caterpillar
Transaction”).
“Caterpillar
Transaction”
has
the
meaning assigned to such term in the definition of “Caterpillar
Obligations”.
“Change
in Control”
means
(a) the failure of FCX to own, either directly or through its wholly owned
Subsidiaries, Equity Interests in PTFI representing at least 80% of the
aggregate ordinary voting power attributable to all of the issued and
outstanding Equity Interests of PTFI; (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 30% 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 (d) the occurrence of any “Change of Control” or “Change in
Control” as defined in any indenture or other governing agreement relating to
the Convertible Notes or any other Material Indebtedness of FCX or
PTFI.
“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 the Issuing Bank
(or, for purposes of Section 2.14(b), by any lending office of such Lender
or by such Lender’s or the 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.
“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 Security Agent or
the
FI Trustee pursuant to any Security Document (it being understood that the
terms
of any such Security Document may limit the Obligations secured by certain
Collateral).
“Collateral
and Guarantee Requirement”
means
the requirement that:
(a)
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)
the
Pledged PTFI Shares and, prior to any merger of PTFI into PTII, the Pledged
PTII
Shares shall have been pledged pursuant to the FCX Pledge Agreements and the
Security Agent shall have received (i) 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
Second Amended and Restated FCX Pledge Agreement (PTFI Shares), (ii) 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 of the
Pledged PTII Shares under the Second Amended and Restated FCX Pledge Agreement
(PTII Shares), and (iii) certificates or other instruments representing the
Pledged PTFI Shares and the Pledged PTII Shares;
(c)
all
Indebtedness of each Borrower and each Restricted Subsidiary that is owing
to
either Borrower (including all Mirror Notes) shall have been pledged pursuant
to
the Second Amended and Restated FCX Pledge Agreement (Indebtedness), the Third
Amended and Restated Lender Fiduciary Assignment, and/or the Lender Security
Agreement Third Amendment, as applicable, and the Security Agent shall have
received all promissory notes evidencing any such pledged indebtedness, together
with (i) notification to the obligors of such indebtedness of such pledge and
(ii) instruments of transfer with respect to such promissory notes endorsed
in
blank;
(d)
all
documents and instruments, including Uniform Commercial Code financing
statements and Indonesian security register filings, required by law or
reasonably requested by the Security 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 Security Agent for filing, registration or recording;
(e)
each
Restricted Subsidiary shall have executed and delivered to the Administrative
Agent a counterpart of a Subsidiary Guarantee Agreement; and
(f)
each
Borrower shall have obtained all 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.
“Combined
Cash Balances”
means,
on any date, the aggregate amount of cash and marketable debt securities in
the
form of Permitted Investments owned on such date by FCX, PTFI and any Subsidiary
Guarantor, excluding, however, all cash and marketable debt securities subject
to agreements, Liens (except for Liens for the benefit of the Secured Parties)
or other arrangements that restrict the use of such cash or marketable
securities in the business of FCX and the Restricted Subsidiaries.
“Commitment”
means,
with respect to each Lender, the commitment of such Lender to make Loans and
acquire participations in Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender’s Exposure hereunder,
as such commitment may be (a) reduced or increased 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 10.04. The initial amount
of each Lender’s Commitment is set forth on Schedule 2.01, or in the Assignment
and Assumption or Accession Agreement pursuant to which such Lender shall have
assumed its Commitment, as applicable. The initial aggregate amount of the
Lenders’ Commitments is $465,000,000.
“Commitment
Increase”
has
the
meaning assigned to such term in paragraph (d) of Section 2.07.
“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 May 2006 relating to the Borrowers
and the Transactions.
“Consolidated
Cash Interest Expense”
means,
for any period, the excess of (a) the sum of (i) the interest expense
(including imputed interest expense in respect of Capital Lease Obligations)
of
FCX and the Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP, (ii) any interest accrued
during such period in respect of Indebtedness of FCX or any Restricted
Subsidiary that is required to be capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP, and
(iii) any cash payments made during such period in respect of obligations
referred to in clause (b)(iii) below that were amortized or accrued in a
previous period, minus
(b) the sum of (i) interest income of FCX and the Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP, (ii) to the extent included in such consolidated interest
expense for such period, non-cash amounts attributable to amortization of
financing costs paid in a previous period, (iii) to the extent included in
such consolidated interest expense for such period, non-cash amounts
attributable to amortization of debt discounts or accrued interest payable
in
kind for such period, and (iv) to the extent included in such consolidated
interest expense for such period, dividends paid in respect of preferred stock
(other than any trust preferred stock).
“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 for such period,
(ii) consolidated income tax expense for such period, (iii) all
amounts attributable to depreciation and amortization for such period and
(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), and 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, all determined on a consolidated basis in accordance with
GAAP.
“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
(computed, however, without deduction for minority interests in the net income
or loss of PTFI); provided
that
there shall be excluded (a) the income of any Person (other than FCX and
PTFI) in which any other Person (other than FCX or any Restricted Subsidiary
or
any director holding qualifying shares in compliance with applicable law) owns
an Equity Interest, except to the extent of the amount of dividends or other
distributions actually paid to FCX or PTFI, as applicable, or any of the
Restricted Subsidiaries during such period, and (b) 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.
“Contract
of Work”
means
the Contract of Work made December 30, 1991, between the Ministry of Mines
of the Government of the Republic of Indonesia, acting for and on behalf of
the
Government of the Republic of Indonesia, and PTFI, together with any related
implementation agreement or Memorandum of Understanding with such Ministry
of
Mines acting on behalf of the Government of the Republic of Indonesia, after
giving effect to the PT-Rio Tinto Indonesia COW Assignment.
“Control”
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto.
“Convertible
Notes”
means
the 7.00% Convertible Senior Notes due 2011 of FCX in an aggregate principal
amount outstanding on the date hereof of $307,663,000.
“Credit
Rating”
means
a
rating assigned by S&P or Xxxxx’x to the corporate credit of
FCX.
“Default”
means
any event or condition which constitutes an Event of Default or which upon
notice, lapse of time or both would, unless cured or waived, become an Event
of
Default.
“Disclosed
Matters”
means
the actions, suits and proceedings and the environmental matters disclosed
in
Schedule 1.01A.
“dollars”
or
“$”
refers
to lawful money of the United States of America.
“Eastern
Minerals”
means
PT Xxxx Eastern Minerals, an Indonesian corporation which, on the Effective
Date, is a 90% indirectly owned Subsidiary of FCX (with the remaining 10% owned
by PTII).
“Effective
Date”
means
the date on which the conditions specified in Section 4.01 are satisfied
(or waived in accordance with Section 10.02).
“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 any Hazardous Material or to health and safety
matters.
“Environmental
Liability”
means
any liability, contingent or otherwise (including any liability for damages,
costs of environmental remediation, fines, penalties or indemnities), of either
Borrower or any Subsidiary directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the
foregoing.
“Equity
Interests”
means
shares of capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person, and any warrants, options or other rights
entitling the holder thereof to purchase or acquire any such equity
interest.
“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 either
Borrower, is treated as a single employer under Section 414(b) or
(c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
“ERISA
Event”
means
(a) any “reportable event”, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the existence with respect
to any Plan of an “accumulated funding deficiency” (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by either
Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by
either Borrower or any ERISA Affiliate from the PBGC or a plan administrator
of
any notice relating to an intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (f) the incurrence by the Borrower or any
of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt
by either Borrower or any ERISA Affiliate of any notice, or the receipt by
any
Multiemployer Plan from either Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
“ERM
Report”
means
the Review of the Freeport McMoRan Copper and Gold Operation in Irian Jaya,
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 or any other banking
authority to which any Lender is subject 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.
“Excluded
Taxes”
means,
with respect to the Administrative Agent, any Lender, the 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 either Borrower
under Section 2.18(b)), any withholding tax that (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (which, in the case of any Foreign Lender
that
was a party to the Existing Credit Agreement, shall be deemed to be the time
such Foreign Lender became a party to the Existing Credit 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(e).
“Existing
Credit Agreement”
means
the Amended and Restated Credit Agreement dated as of September 30, 2003, among
FCX, PTFI, the lenders party thereto, JPMorgan Chase Bank, as administrative
agent, issuing bank, security agent, JAA security agent and documentation agent
and U.S. Bank Trust National Association, as FI trustee, which amended and
restated the Amended and Restated Credit Agreement dated as of 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
Letters of Credit”
means
the existing letters of credit listed on Schedule 1.01B.
“Existing
Subsidiary Guarantee Agreement”
means
(i) the Indonesian Subsidiary Guarantee Agreement dated as of November 11,
2003,
among the subsidiary guarantors named therein and JPMorgan Chase Bank, as
security agent, and (ii) the Subsidiary Guarantee Agreement dated as of November
11, 2003, among the subsidiary guarantors named therein and JPMorgan Chase
Bank,
as security agent.
“Exploration
Subsidiary”
means
Eastern Minerals and any other Subsidiary that is engaged solely in the business
of exploration and does not own any assets necessary or used in connection
with
Block A Base Production.
“Exposure”
means,
with respect to any Lender at any time, the sum of the outstanding principal
amount of such Lender’s Loans and LC Exposure at such time.
“FCX
Assisted PTFI Sale”
means
a
Qualifying PTFI Sale Transaction in which the purchaser is not an Affiliate
of
the Borrowers (i) which is made for fair market value and for consideration
consisting solely of cash received upon consummation of such sale and (ii)
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)(xii) in favor
of
any lenders providing debt financing to the purchaser in an aggregate amount
not
in excess of the amount of such cash consideration.
“FCX
Pledge Agreements”
means
the Second Amended and Restated FCX Pledge Agreement (Indebtedness), the Second
Amended and Restated FCX Pledge Agreement (PTFI Shares) and the Second Amended
and Restated FCX 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”
has
the
meaning assigned to such term in Section 6.16.
“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 Annex.
“FI
Intercreditor Agreement”
means
the Intercreditor Agreement entered 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
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 Irian Jaya, 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 Third Amended and
Restated Fiduciary Assignment.
“FI
Security Documents”
means
the FI Trust Agreement, the FI Trust Agreement Financing Annexes, the Operator
Replacement Agreement, the Third Amended and Restated Surat Kuasa, the Third
Amended and Restated Fiduciary Transfer, the Third Amended and Restated
Fiduciary Assignment, the Lender Security Agreement, the Lender Security
Agreement Amendments, the Third Amended and Restated Lender Surat Kuasa, the
Third Amended and Restated Lender Fiduciary Assignment, the Third Amended and
Restated JAA Fiduciary Transfer, the FI Intercreditor Agreement, the FI
Intercreditor Agreement Creditor Annex, the Side Letter, the Side Letter
Creditor Annex, all Uniform Commercial Code financing statements and all
Indonesian financing statements or security filings required to be filed
hereunder or under the FI Security Documents 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 Third Amended and Restated Surat
Kuasa, the Third Amended and Restated Fiduciary Transfer, the Third Amended
and
Restated Fiduciary Assignment, the Lender Security Agreement Third Amendment,
the Third Amended and Restated Lender Surat Kuasa, the Third Amended and
Restated Lender Fiduciary Assignment, the Third Amended and Restated JAA
Fiduciary Transfer, 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 Third Amended and Restated Surat Kuasa and
the
Third Amended and Restated Fiduciary Assignment.
“Financial
Covenants”
means
the covenants set forth in Sections 6.18, 6.19 and 6.20.
“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.
“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.
“Guarantee”
of
or
by any Person (the “guarantor”)
means
any obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of
any
other Person (the “primary
obligor”)
in any
manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
or
to purchase (or to advance or supply funds for the purchase of) any security
for
the payment thereof, (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.
“IFC
Guidelines”
means
the International Finance Corporation (IFC) Safeguard Policies, summarized
and
attached in Annex A to the ERM Report.
“Immaterial
Subsidiary”
means
any Subsidiary with assets of less than $1,000,000 and revenues of less than
$1,000,000 per annum.
“Indebtedness”
of
any
Person means, without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
for
the unearned balance of any payment received under any contract which is
outstanding for more than 120 days, (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 incurred in the ordinary course of business so long as the same are
not
more than 60 days overdue or, if overdue, are being contested in good faith
by
appropriate proceedings), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed,
(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 non-contingent
obligations of such Person as an account party (including reimbursement
obligations to the issuer) in respect of letters of credit and letters of
guaranty not referred to in clause (i), (k) all 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
(l) all obligations, contingent or otherwise, of such Person in respect of
bankers’ acceptances; provided,
however,
that no
series of preferred stock of a Borrower or a Restricted Subsidiary outstanding
on the Effective Date (or securities of substantially the same type (but which
do not mature in whole or part, and are not subject to any amortization,
redemption, repurchase or exchange requirements prior to January 13, 2010)
issued to refinance such preferred 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.
“Indemnified
Taxes”
means
Taxes other than Excluded Taxes and other than Indonesian Taxes.
“Indonesian
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 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.
“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.
“Indonesian
Power Project”
means
all of the related and associated assets, properties and rights, now owned
or
hereafter acquired by PJP, relating to PTFI’s mining and milling operations and
infrastructure in Papua, Indonesia.
“Infrastructure
Assets”
means
the infrastructure assets utilized by PTFI and owned by one or more joint
ventures that, on the date hereof, are subject to the Infrastructure Financings,
and any assets hereafter acquired by such joint ventures which become subject
to
the Infrastructure Financings pursuant to the Infrastructure Financing
Documents.
“Infrastructure
Financings”
means,
collectively, the financing arrangements existing on the date hereof with
respect to certain infrastructure assets utilized by PTFI, including asset
leasing agreements and guarantees of bank loans extended to joint ventures
that
acquired such infrastructure assets. The aggregate amount of Indebtedness and
Attributable Debt of PTFI, calculated in accordance with GAAP, under the
Infrastructure Financings on the Effective Date is $210,705,000. Each
Infrastructure Financing, and the Indebtedness or Attributable Debt relating
thereto, is described in Schedule 1.01C.
“Infrastructure
Financing Documents”
means
each of the operative documents relating to the Infrastructure Financings,
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. The Infrastructure Financing Documents with
respect to each Infrastructure Financing in effect on the Effective Date are
listed in Schedule 1.01C.
“Initial
Borrowing Availability Date”
means
the date on which the conditions specified in Section 4.02 are satisfied (or
waived in accordance with Section 10.02).
“Interest
Election Request”
means
a
request by either Borrower to convert or continue a Borrowing in accordance
with
Section 2.06.
“Interest
Payment Date”
means
(a) with respect to any ABR 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 or six 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.
“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.
“Issuing
Bank”
means
JPMCB, in its capacity as the issuer of Letters of Credit hereunder, and its
successors in such capacity as provided in Section 2.05(i). The Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
“JAA
Security Agent”
means
JPMCB, not in its individual capacity, but as JAA Security Agent for the Lenders
and RTZ-IIL under the Second Amended and Restated JAA Fiduciary Transfer and
the
Third Amended and Restated JAA Fiduciary Transfer.
“Joint
Account Assets”
has
the
meaning assigned to such term in the Participation Agreement.
“LC
Disbursement”
means
a
payment made by the Issuing Bank pursuant to a Letter of Credit.
“LC
Exposure”
means,
at any time, the sum of (a) the aggregate undrawn amount of all outstanding
Letters of Credit at such time plus (b) the aggregate amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Borrowers
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 Lender Security Agreement First Amendment, the Lender Security Agreement
Second Amendment and the Lender Security Agreement Third Amendment.
“Lender
Security Agreement First Amendment”
means
the Amendment to the Lender Security Agreement dated as of October 19,
2001.
“Lender
Security Agreement Second Amendment”
means
the Second Amendment to the Lender Security Agreement dated as of November
11,
2003.
“Lender
Security Agreement Third Amendment”
means
a
third 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 and the
Required Lenders.
“Lender
Security Documents”
means
the Lender Security Agreement, the Lender Security Agreement Amendments, the
Third Amended and Restated Lender Surat Kuasa, the Third Amended and Restated
Fiduciary Transfer and the Third Amended and Restated Lender Fiduciary
Assignment.
“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, or pursuant
to an Accession Agreement entered into under Section 2.07(d), other than any
person that ceases to be a party hereto pursuant to an Assignment and
Assumption.
“Letter
of Credit”
means
(i) any letter of credit issued pursuant to this Agreement and
(ii) the Existing Letters of Credit.
“Leverage
Ratio”
means,
on any date, the ratio of (a) Total Indebtedness as of such date to
(b) Consolidated EBITDA for the period of four consecutive fiscal quarters
of FCX most recently ended on or prior to such date.
“LIBO
Rate”
means,
with respect to any Eurodollar Borrowing for any Interest Period, the rate
appearing on Page 3750 of the Dow Xxxxx Market Service (or on any successor
or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to
dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period. In the event that such rate is not available at such time
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,
(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 and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.
“Liquidity”
means,
on any date, the sum of (i) prior to the Initial Borrowing Availability
Date, the aggregate amount of Commitments on such date or, after the Initial
Borrowing Availability Date, the amount of unused Commitments that could be
utilized on that date to effect Borrowings, and (ii) Combined Cash Balances
on such date.
“Loan
Documents”
means
this Agreement and the Security Documents.
“Loan
Parties”
means
FCX, PTFI and each Subsidiary Guarantor.
“Loans”
means
the loans made by the Lenders to the Borrowers pursuant to this
Agreement.
“Major
Concentrate Sales Agreement”
means
any Concentrate Sales Agreement providing for sales during the term thereof
of
at least 75,000 metric tons of concentrate.
“Material
Adverse Effect”
means
a
material adverse effect on (a) the business, operations, prospects or
condition, financial or otherwise, of either Borrower and its Restricted
Subsidiaries, taken as a whole, including, without limitation, changes in
ratings of debt of either Borrower that have a material adverse effect on such
prospects, (b) the ability of any Loan Party to perform any of its
obligations under any Loan Document or (c) the rights of or benefits
available to the Lenders under any Loan Document.
“Material
Indebtedness”
means
Indebtedness (other than the Loans and Letters of Credit), or obligations in
respect of one or more Hedging Agreements, of either or both of the Borrowers
and/or any Restricted Subsidiary in an aggregate principal amount exceeding
$10,000,000. For purposes of determining Material Indebtedness, the “principal
amount” of the obligations of either Borrower or any Restricted Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that such Borrower or such
Restricted Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time.
“Maturity
Date”
means
July 25, 2009.
“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 as amended, modified or supplemented as permitted hereby from time to
time.
“Mirror
Note Securities”
has
the
meaning given to such term in the definition of “Mirror Notes”.
“Mirror
Notes”
means
any promissory notes or other repayment obligations at any time issued by PTFI
to FCX (whether before, on or after the Effective Date) in consideration for
loans or advances made by FCX to PTFI with any Net Proceeds from debt issuances
or equity issuances of FCX (collectively, “Mirror
Note Securities”)
(including, without limitation, in respect of the Convertible Notes and the
2026
Senior Notes), payments in respect of which are generally anticipated to provide
FCX with a portion of the funds required to make payments, when due, of
interest, dividends, principal or redemption amounts in respect of such Mirror
Note Securities.
“Moody’s”
means
Xxxxx’x Investors Service, Inc.
“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 reasonable fees and out-of-pocket expenses paid by either Borrower
or any Restricted Subsidiary to Third Parties (other than Affiliates) 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), the amount of all
payments required to be made by either Borrower or any Restricted Subsidiary
as
a result of such event to repay Indebtedness (other than Loans) secured by
such
asset or otherwise subject to mandatory prepayment as a result of such event,
and (iii) the amount of all taxes paid (or reasonably estimated to be
payable) by the Borrowers and the Restricted Subsidiaries, and the amount of
any
reserves established by the Borrower and the Restricted Subsidiaries to fund
contingent liabilities reasonably estimated to be payable, in each case during
the year that such event occurred or the next succeeding year and that are
directly attributable to such event (as determined reasonably and in good faith
by the chief financial officer of the applicable Borrower).
“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.
“Obligations”
means
the obligations of each of FCX and PTFI hereunder and under the other Loan
Documents, including, without limitation, (a) the due and punctual payment
by
FCX and PTFI, as the case may be, 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 and of PTFI under Article IX hereof
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), (b) the due and punctual
performance of all other obligations of FCX and PTFI under or pursuant to this
Agreement and each other Loan Document, (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, (d) the due and punctual payment and
performance of all obligations of FCX or PTFI, as the case may be, under each
Permitted Secured Hedge and (e) the due and punctual payment and performance
of
all obligations owed from time to time by FCX or PTFI to JPMCB or its Affiliates
in respect of (i) cash management services and (ii) any Purchasing Card Program,
in each case including obligations in respect of overdrafts, temporary advances,
interest and fees.
“Operating
Lease”
means
any lease other than a lease which gives rise to a Capital Lease
Obligation.
“Operator
Replacement Agreement”
means
the Operator Replacement Agreement dated as of October 11, 1996 among PTFI,
PT-Rio Tinto Indonesia, First 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 herein 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.
“Participant”
has
the
meaning set forth in Section 10.04.
“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)).
“Perfection
Certificate”
means
the perfection certificates executed by each Borrower substantially in the
form
of Exhibit B.
“PBGC”
means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA and
any successor entity performing similar functions.
“Permitted
Encumbrances”
means:
(a) Liens
imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.05;
(b) 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;
(c) Liens
arising in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security laws or
regulations, and progress payments under government contracts and other Liens
incident to the ordinary conduct of any Borrower’s or its Restricted
Subsidiary’s business or the ordinary operation of property or assets and not
securing any Indebtedness or Guarantee;
(d) deposits
to secure the performance of bids, trade contracts, leases, statutory
obligations and Liens in connection with surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary
course of business;
(e)
judgment liens in respect of judgments that do not constitute an Event of
Default under clause (j) of Article VII;
(f)
rights of lessors under leases of property leased by a Borrower or a Restricted
Subsidiary under Operating Leases entered into in the ordinary course of
business, which rights are limited to the property so leased; and
(g) easements,
zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of either
Borrower or any Restricted Subsidiary;
provided
that the
term “Permitted Encumbrances” shall not include any Lien securing Indebtedness
or Attributable Debt.
“Permitted
FCX Indebtedness”
means
unsecured (other than in respect of any Permitted Interest Escrow) Indebtedness
of FCX which is not Guaranteed by any Restricted Subsidiary (other than, in
the
case of the Convertible Notes, FCX Investment Ltd., an exempted limited
liability company organized in the Cayman Islands and a Wholly Owned Restricted
Subsidiary of FCX), which does not mature and is not subject to any amortization
or mandatory prepayment or repurchase requirements (other than customary and
usual put rights or repurchase obligations arising as a result of a Change
in
Control and customary and usual obligations requiring repurchase with the
proceeds of asset sales after application of such proceeds to prepayments and
reductions of Indebtedness and Commitments hereunder) until the date six months
after the Maturity Date, and which is not convertible into or exchangeable
for
any Equity Interests, other than common stock of FCX, or any other Indebtedness,
other than Permitted FCX Indebtedness.
“Permitted
Interest Escrow”
means,
with respect to any Indebtedness permitted by Section 6.01(a)(viii) or
(ix), an amount not to exceed the sum of the regularly scheduled interest
payments due during the initial three years after issuance of such Indebtedness,
which amount shall have been placed in an interest reserve escrow account in
connection with the issuance of, and to secure the obligations under, such
Indebtedness.
“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 180 days from the date of acquisition thereof issued or guaranteed by
or
placed with, and money market deposit accounts issued or offered by, any
commercial bank which has a short-term deposit rating issued by Moody’s of P-2
or higher;
(d)
overnight repurchase agreements relating to securities described in clause
(a),
(b) or (c) above; and
(e) Investments
in readily marketable money market funds registered under the Investment Company
Act of 1940 which hold only securities described in clause (a), (b), (c) or
(d) above.
“Permitted
Secured Hedge”
means
any Hedging Agreement between PTFI or FCX (a) if entered into prior to the
date
hereof, with a counterparty that is a Lender (or Affiliate of a Lender) 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 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.
“PJP”
means
P.T. Puncakjaya Power, a limited liability company established and existing
under the laws of the Republic of Indonesia.
“Plan”
means
any employee pension benefit plan (other than a Multiemployer Plan) subject
to
the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.
“Pledged
PTFI Shares”
means
all shares of the capital stock of PTFI owned by FCX and pledged pursuant to
the
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 and pledged pursuant to the FCX Pledge Agreement (PTII Shares).
On
the Effective Date, the Pledged PTII shares represent 99.998% 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.
“PTFI
EBITDA”
means,
for any period, PTFI Net Income for such period plus (a) without
duplication and to the extent deducted in determining such PTFI Net Income,
the
sum of (i) interest expense for such period, (ii) income tax expense
for such period, (iii) all amounts attributable to depreciation and
amortization for such period and (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
PTFI EBITDA for the period in which such cash payment is made), and minus
(b) without duplication and to the extent included in determining such PTFI
Net Income, any extraordinary gains or non-cash gains for such period, all
determined on a consolidated basis in accordance with GAAP.
“PTFI
Indebtedness”
means,
as of any date, (a) the aggregate principal amount of Indebtedness of PTFI
and its 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, minus
(b) the aggregate amount of cash and Permitted Investments of PTFI and its
Restricted Subsidiaries as of such date, other than any cash and Permitted
Investments subject to a Lien or escrow arrangement securing Indebtedness or
other obligations.
“PTFI
Leverage Ratio”
means,
on any date, the ratio of (a) PTFI Indebtedness as of such date to
(b) PTFI EBITDA for the period of four consecutive fiscal quarters of PTFI
most recently ended on or prior to such date.
“PTFI
Net Income”
means,
for any period, the net income or loss of PTFI and its Restricted Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP
(computed, however, without deduction for minority interests in the net income
or loss of PTFI); provided
that
there shall be excluded (a) the income of any Person (other than PTFI) in
which any other Person (other than PTFI or any Restricted Subsidiary of PTFI
or
any director holding qualifying shares in compliance with applicable law) owns
an Equity Interest, except to the extent of the amount of dividends or other
distributions actually paid to PTFI or any Restricted Subsidiary of PTFI during
such period, and (b) the income or loss of any Person accrued prior to the
date it becomes a Restricted Subsidiary of PTFI or is merged into or
consolidated with PTFI or any Restricted Subsidiary of PTFI or the date that
such Person’s assets are acquired by PTFI or any Restricted Subsidiary of
PTFI.
“PTII”
means
PT Indocopper Investama Tbk, a corporation organized under the laws of
Indonesia.
“PT Kencana”
means
PT Kencana Infra Nusakarya, a corporation organized under the laws of
Indonesia (formerly known as P.T. ALatieF Freeport Infrastructure
Corporation), which, on the Effective Date, is a Wholly Owned Subsidiary of
PTFI, held indirectly in part through PT Mitradaya Vulkanisindo and
PT Freeport Finance Indonesia.
“PT
Kencana Assets”
means
the non-mining infrastructure assets that were formerly subject to the Joint
Venture Agreement dated as of March 11, 1993, between PTFI and
P.T. ALatieF Nusakarya Corporation and which are currently owned by
PT Kencana and PT Kencana Wisata, each a Restricted Subsidiary of PTFI. On
the Effective Date the aggregate book value of the PT Kencana Assets is not
in excess of
$270,000,000.
“PT Kencana
Financing”
means
the financing by PTFI or a Restricted Subsidiary of the PT Kencana Assets
pursuant to the incurrence of Indebtedness secured by such assets or the
incurrence of Attributable Debt in connection with a sale and leaseback
transaction involving such assets and or the sale or issuance of Equity
Interests in PT Kencana, PT Kencana Wisata or any other Subsidiary
which owns PT Kencana Assets.
“PT Kencana
Financing Documents”
means
each of the operative documents relating to any PT Kencana 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.
“PT
Kencana Wisata”
means
PT Kencana Wisata Nusakarya, a corporation organized under the laws of
Indonesia, which is a 99% owned subsidiary of PTFI (with the remaining 1% owned
by FCX).
“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
Chase Visa Purchasing Card Program established for FCX by JPMCB, pursuant to
which JPMCB issues Chase Visa Purchasing Cards to employees and other accounts
of FCX, with an aggregate credit limit not to exceed $300,000 (including,
without limitation, for purchases made in foreign currencies and converted
into
U.S. dollars).
“Qualifying
PTFI Sale Transaction”
means
a
single sale of the Pledged PTII Shares and/or of shares of PTFI which are either
owned by FCX and do not constitute Collateral or owned by PTII (in each case,
the “Transferred
Shares”)
which
satisfies the following requirements:
(i) the
aggregate amount of shares of capital stock of PTFI which are, directly or
indirectly, sold 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
is made 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;
(iii) the
consideration for such sale consists solely of cash and/or a promissory note
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) 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 FCX Pledge Agreement (Indebtedness) or other pledge
arrangements satisfactory to the Administrative Agent (and regardless of whether
the owner of such note is FCX, PTII or another Person); 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.
“Related
Parties”
means,
with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“Required
Lenders”
means,
at any time, Lenders having Exposures and unused Commitments representing not
less than 51% of the sum of the total Exposures and unused Commitments at such
time.
“Restricted
Indebtedness”
means
any Indebtedness of either Borrower or any Restricted Subsidiary, the payment,
prepayment, redemption, repurchase or defeasance of which is restricted under
Section 6.08.
“Restricted
Payment”
means
any dividend or other distribution (whether in cash, securities or other
property) with respect to any Equity Interests in either Borrower or any
Restricted Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancelation or termination of
any
Equity Interests (including any payment under a Synthetic Purchase Agreement
related to any Equity Interests) in either Borrower or any Restricted Subsidiary
or any option, warrant or other right to acquire any such Equity Interests
in
either Borrower or any Restricted Subsidiary.
“Restricted
Subsidiary”
means
PTFI and any other Subsidiary of FCX or PTFI that is not an Unrestricted
Subsidiary.
“Restricted
Uses”
means,
as of any date, the sum of (I) the aggregate cumulative amount of all Restricted
Payments made pursuant to Section 6.08(a)(iii)(B), (II) the aggregate amount
of
payments of Indebtedness (other than payments permitted by Section
6.08(b)(i)-(v)) as of such date (x) at a time when Liquidity was less than
$250,000,000 or (y) to the extent and in the amount that such payments of
Indebtedness caused Liquidity to drop below $250,000,000 (determined, in each
case, immediately after giving effect to such payments and giving pro forma
effect to any deferred payment of cash required thereby) and (III) the aggregate
amount of all Investments as of such date made in reliance on clause (p) of
Section 6.04.
“Restricted
Uses Basket”
means,
as of any date, the sum of (x) $250,000,000 plus
(y) 50% of Consolidated Net Income during the period from March 31, 2006,
through the last day of the then most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 5.01(a) or (b) (or, if such
Consolidated Net Income is a deficit, minus
100% of
such deficit).
“RTZ”
means
Rio Tinto plc (formerly RTZ Corporation PLC), a company organized under the
laws
of England.
“RTZ
America”
means
Rio Tinto America Holdings, Inc. (formerly RTZ America Holdings, Inc. (formerly
RTZ America, Inc.)), a Delaware corporation and a wholly owned subsidiary of
RTZ.
“RTZ
Documents”
has
the
meaning assigned to such term in Section 6.15.
“RTZ-IIL”
means
Rio Tinto Indonesia Investments Limited (formerly known as RTZ Indonesian
Investments Limited), a company organized under the laws of
England.
“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 pursuant to the FI Trust Agreement, in each case as permitted
by Section 6.15.
“RTZIF”
means
RTZ Indonesian Finance Limited, a company organized under the laws of England
and a wholly owned subsidiary of RTZ.
“S&P”
means
Standard & Poor’s.
“Sales
Proceeds Account”
has
the
meaning assigned to such term in the FI Trust Agreement.
“Second
Amended and Restated FCX Pledge Agreement (Indebtedness)”
means
an amended and restated pledge agreement substantially in the form of the
Amended and Restated FCX Pledge Agreement (Indebtedness), 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 Indebtedness owing by PTFI or any other Restricted Subsidiary
to FCX, for the ratable benefit of the holders of the Obligations.
“Second
Amended and Restated FCX Pledge Agreement (PTFI Shares)”
means
an amended and restated pledge agreement substantially in the form of the
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.
“Second
Amended and Restated FCX Pledge Agreement (PTII Shares)”
means
an amended and restated pledge agreement substantially in the form of the
Amended and Restated FCX Pledge Agreement (PTII 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 PTII Shares for the ratable benefit of the holders of the
Obligations.
“Second
Amended and Restated Fiduciary Assignment”
means
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).
“Second
Amended and Restated Fiduciary Transfer”
means
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).
“Second
Amended and Restated JAA Fiduciary Transfer”
means
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).
“Second
Amended and Restated Lender Fiduciary Assignment”
means
the Second Amended and Restated Lender 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).
“Second
Amended and Restated Lender Surat Kuasa”
means
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).
“Second
Amended and Restated Surat Kuasa”
means
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.
“Secured
Parties”
means
the Administrative Agent, the Issuing Bank, the Security Agent, the JAA Security
Agent, the Syndication Agent, the Lenders, each counterparty to a Permitted
Secured Hedge, JPMCB or any of its Affiliates providing cash management services
or any Purchasing Card Program to FCX or PTFI, and, in the case of the Third
Amended and Restated Fiduciary Assignment and the Third Amended and Restated
JAA
Fiduciary Transfer, RTZ-IIL, and the successors and assigns of the
foregoing.
“Security
Agent”
means
JPMCB, not in its individual capacity, but as Security Agent for the Lenders
under the FCX Pledge Agreements and the Lender Security Documents.
“Security
Documents”
means
the FI Security Documents, the FCX Pledge Agreements, the Subsidiary Guarantee
Agreements 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.
“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.
“Special
Account”
has
the
meaning assigned to such term in the FI Trust Agreement.
“Stock
Purchase Agreement”
means
the Agreement dated as of May 2, 1995, by and between (among other parties)
FCX, RTZ, RTZ Indonesia and RTZ America.
“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 either Borrower.
“Subsidiary
Guarantee Agreement”
means
an amendment and restatement of each Existing Subsidiary Guarantee Agreement
with such modifications as may be necessary to reflect the amendment and
restatement of the Existing Credit Agreement in the form of this Agreement,
in
each case in form and substance satisfactory to the Administrative Agent and
the
Required Lenders and executed by each Indonesian Subsidiary Guarantor and
non-Indonesian Subsidiary Guarantor, as appropriate, pursuant to which such
Restricted Subsidiary guarantees some or all of the Obligations.
“Subsidiary
Guarantor”
means
each Restricted Subsidiary that has become party to a Subsidiary Guarantee
Agreement.
“Synthetic
Purchase Agreement”
means
any swap, derivative or other agreement or combination of agreements pursuant
to
which either Borrower or any Restricted Subsidiary is or may become obligated
to
make (i) any payment in connection with a purchase by any third party from
a Person other than the Borrowers or any Restricted Subsidiary of any Equity
Interest or Restricted Indebtedness or (ii) any payment (other than on
account of a permitted purchase by it of any Equity Interest or any Restricted
Indebtedness) the amount of which is determined by reference to the price or
value at any time of any Equity Interest or Restricted Indebtedness;
provided
that no
phantom stock or similar plan providing for payments only to current or former
directors, officers or employees of the Borrowers 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.
“Third
Amended and Restated Fiduciary Assignment”
means
a
Third Amended and Restated Fiduciary Assignment substantially in the form of
the
Second 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 and the Required Lenders, 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 a security
interest in accounts receivable from Concentrate Sales Agreements for the
benefit of the Secured Parties.
“Third
Amended and Restated Fiduciary Transfer”
means
a
Third Amended and Restated Fiduciary Transfer substantially in the form of
the
Second 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 and the Required Lenders 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.
“Third
Amended and Restated JAA Fiduciary Transfer”
means
a
Third Amended and Restated JAA Fiduciary Transfer substantially in the form
of
the Second 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 and the Required Lenders, 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 Secured
Parties.
“Third
Amended and Restated Lender Fiduciary Assignment”
means
a
Third Amended and Restated Lender Fiduciary Assignment substantially in the
form
of the Second 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 and the Required Lenders,
pursuant to which PTFI grants a security interest in its accounts receivable
(other than those arising from Concentrate Sales Agreements or Joint Account
Assets) for the ratable benefit of the holders of the Obligations.
“Third
Amended and Restated Lender Surat Kuasa”
means
a
Third Amended and Restated Lender Surat Kuasa substantially in the form of
the
Second 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 and the Required Lenders, 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.
“Third
Amended and Restated Surat Kuasa”
means
a
Third Amended and Restated Surat Kuasa substantially in the form of the Second
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 and the Required Lenders, granted by PTFI and PT-Rio Tinto
Indonesia with respect to authorization to appoint a successor Operator (as
defined in the Participation Agreement).
“Total
Indebtedness”
means,
as of any date, (a) the aggregate principal amount of Indebtedness of the
Borrowers 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, minus
(b) the
aggregate amount of cash and Permitted Investments of the Borrowers and the
Restricted Subsidiaries as of such date, other than any cash and Permitted
Investments securing the Convertible Notes or otherwise subject to a Lien or
escrow arrangement securing Indebtedness or other obligations.
“Transactions”
means
the execution, delivery and performance by each Loan Party of the Loan Documents
to which it is to be a party, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.
“Transferred
Shares”
has
the
meaning set forth in the definition of “Qualifying PTFI Sale
Transaction”.
“2001
Credit Agreement”
means
the Amended and Restated Credit Agreement dated as of October 19, 2001, as
amended, among FCX, PTFI, the lenders party thereto, The Chase Manhattan Bank,
as administrative agent, issuing bank, security agent, JAA security agent and
documentation agent and U.S. Bank Trust National Association, as FI trustee,
which amended and restated 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.
“2026
Senior Notes”
means
the 7.20% Senior Notes due 2026 of FCX in an aggregate principal amount
outstanding on the date hereof of $175,000,000.
“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 existing on the Effective Date and identified on
Schedule 3.12 as an Unrestricted Subsidiary, (ii) any Subsidiary of
any Unrestricted Subsidiary and (iii) any surviving corporation (other than
PTFI or FCX 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, (iv) any Subsidiary organized after the date of this
Agreement and designated as a Unrestricted Subsidiary by FCX in accordance
with
Section 6.17 at the time of its organization, (v) in the event a
PT Kencana Financing is consummated in accordance with the provisions of
Sections 6.01, 6.02 and 6.04, PT Kencana and/or PT Kencana
Wisata, if such Subsidiary is designated as an Unrestricted Subsidiary in
accordance with Section 6.17, and (vi) in the event the investment
therein is permitted by Section 6.04, any Exploration Subsidiary, if it is
designated as an Unrestricted Subsidiary pursuant to Section 6.17.
“Unrestricted
Subsidiary LC Exposure”
means,
at any time, the sum of (a) the aggregate undrawn amount of all outstanding
Letters of Credit issued for the account of Unrestricted Subsidiaries at such
time plus (b) the aggregate amount of all LC Disbursements relating to such
Letters of Credit that have not yet been reimbursed by or on behalf of the
Borrowers at such time.
“Wholly
Owned Restricted Subsidiary”
means
a
Wholly Owned Subsidiary that is a Restricted Subsidiary.
“Wholly
Owned Subsidiary”
shall
mean a subsidiary of FCX or PTFI, as the case may be, 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 PTFI or one or more Wholly Owned Subsidiaries
of
FCX or PTFI, or by FCX or PTFI and one or more Wholly Owned Subsidiaries of
FCX
or PTFI.
“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 and Borrowings may be classified and referred
to by Type (e.g.,
a
“Eurodollar Loan” or a “Eurodollar Borrowing”).
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, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (c) 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, (d) all references herein to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (e) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
SECTION
1.04. Accounting
Terms; GAAP.
Except
as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; provided
that, if
the Borrowers notify the Administrative Agent that the Borrowers request an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrowers that the Required Lenders request an amendment to any provision hereof
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.
ARTICLE
II
The
Credits
SECTION
2.01. Commitments.
Subject
to the terms and conditions set forth herein, each Lender agrees to make Loans
to the Borrowers from time to time during the Availability Period in an
aggregate principal amount that will not result in such Lender’s Exposure
exceeding such Lender’s Commitment. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrowers may borrow, prepay
and
reborrow Loans.
SECTION
2.02. Loans
and Borrowings. (a)
Each
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 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 Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the applicable Borrower may request in accordance herewith.
Each Lender at its option may make any Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided
that any
exercise of such option shall not affect the obligation of the 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; provided
that an
ABR Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Commitments. Borrowings of more than one Type 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.
(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 Maturity
Date.
SECTION
2.03. Requests
for Borrowings.
To
request a Borrowing, a Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later
than 11:00 a.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 11:00 a.m., 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 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 applicable 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 applicable Borrower shall be deemed
to have selected an Interest Period of one month’s duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of
the
amount of such Lender’s Loan to be made as part of the requested
Borrowing.
SECTION
2.04. Funding
of Borrowings. (a)
Each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 noon, New
York
City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders. 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 Issuing
Bank.
(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 a 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.
Subject
to the terms and conditions set forth herein, (i) either Borrower may request
the issuance of Letters of Credit for its own account, (ii) FCX may request
the
issuance of Letters of Credit for the account of any Restricted Subsidiary
(other than PTFI) and (iii) subject to Section 6.04(c) or Section 6.04(g)
or, if applicable, Section 6.04(p) 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 Issuing Bank, at any time and from time to time
during the 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(c) or
Section 6.04(g) or, if applicable, Section 6.04(p), as the case may
be, in each case in the stated amount of 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 Issuing Bank) to the 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. 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 Borrowers shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $100,000,000, (ii) the Unrestricted Subsidiary LC
Exposure shall not exceed $10,000,000 and (iii) the total Exposures shall
not exceed the total Commitments. On and after the Initial Borrowing
Availability Date, the Existing Letters of Credit shall be deemed to be Letters
of Credit issued under this Agreement.
(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 Maturity Date.
(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 Issuing
Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each
Lender hereby acquires from the 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 Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender’s Applicable Percentage of each LC Disbursement made by the 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 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.
On
the Initial Borrowing Availability Date, the Issuing Bank shall be deemed,
without further action by any party hereto, to have granted to each Lender
and
each Lender shall have been deemed to have purchased from the Issuing Bank
a
participation in each Existing Letter of Credit in accordance with this
paragraph.
(e)
Reimbursement.
If the
Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit,
the Borrower that shall have requested such Letter of Credit (a “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 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 Lender of the
applicable LC Disbursement, the payment then due from such Requesting Borrower
in respect thereof and such Lender’s Applicable Percentage thereof. Promptly
following receipt of such notice, each 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 Lenders), and the Administrative Agent shall promptly
pay to the Issuing Bank the amounts so received by it from the 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 Issuing Bank or, to the extent that the Lenders have made
payments pursuant to this paragraph to reimburse the Issuing Bank, then to
such
Lenders and the Issuing Bank as their interests may appear. Any payment made
by
a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of Loans 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 the 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 Bank, 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
Issuing Bank; provided
that the
foregoing shall not be construed to excuse the 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
the 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 the Issuing Bank (as finally
determined by a court of competent jurisdiction), the 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, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice
or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of
such
Letter of Credit.
(g)
Disbursement
Procedures.
The
Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of Credit.
The Issuing Bank shall promptly notify the Administrative Agent and the
Requesting Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether the 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 the Issuing Bank and the Lenders with
respect to any such LC Disbursement.
(h)
Interim
Interest.
If the
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 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 the Issuing
Bank shall be for the account of such Lender to the extent of such
payment.
(i)
Replacement
of the Issuing Bank.
The
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 the 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 the Issuing Bank under this Agreement
with respect to Letters of Credit to be issued 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), on the Business Day
that the Borrowers receive notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Lenders with
LC
Exposure representing not less than 51% of the total LC Exposure) demanding
the
deposit of cash collateral pursuant to this paragraph, 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). 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 Bank for LC Disbursements for which it has 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
Lenders with LC Exposure representing not less than 51% 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, such amount
(to
the extent not applied as aforesaid) shall be returned to the Borrowers within
three Business Days after all Events of Default have been cured or
waived.
SECTION
2.06. Interest
Elections. (a)
Each
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. 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 Borrowing, and the Loans comprising each
such
portion shall be considered a separate Borrowing.
(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 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.
SECTION
2.07. Termination
and Reduction of Commitments; Increase in Commitments. (a)
Unless
previously terminated, the Commitments shall terminate on the Maturity
Date.
(b)
FCX
may
at any time terminate, or from time to time reduce, the Commitments;
provided
that
(i) each reduction of the Commitments is an integral multiple of $1,000,000
and not less than $5,000,000 and (ii) FCX shall not terminate or reduce the
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 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 Commitments.
(c)
FCX
shall
notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section, at least three Business
Days prior to the effective date of such termination or reduction, specifying
such election or reduction and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of
the
contents thereof. Each notice delivered by FCX pursuant to this Section shall
be
irrevocable; provided
that a
notice of termination of the Commitments delivered by FCX may state that such
notice is conditioned upon the effectiveness of other financings, 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 shall be permanent. Each reduction
of the Commitments shall be made ratably among the Lenders in accordance with
the amounts of their Commitments.
(d)
The
Borrowers may, by written notice to the Administrative Agent, executed by the
Borrowers and one or more financial institutions in their discretion (any such
financial institution referred to in this Section being called an “Increasing
Lender”),
which
may include any Lender, cause Commitments to be extended by the Increasing
Lenders (or cause the Commitments of the Increasing Lenders that are already
Lenders to be increased, as the case may be) (a “Commitment
Increase”)
in an
amount for each Increasing Lender set forth in such notice; provided,
however,
that
(a) the aggregate amount of all new Commitments and increases in existing
Commitments pursuant to this paragraph during the term of this Agreement,
together with the Commitments existing on the Effective Date, shall in no event
exceed $500,000,000, (b) each Increasing Lender, if not already a Lender
hereunder, shall be subject to the approval of the Administrative Agent (which
approval shall not be unreasonably withheld), (c) each Increasing Lender
already a party hereto shall deliver to the Administrative Agent confirmation
in
writing satisfactory to the Administrative Agent as to its increased Commitment
and (d) each Increasing Lender, if not already a Lender hereunder, (i)
shall become a party to this Agreement by completing and delivering to the
Administrative Agent a duly executed accession agreement in a form satisfactory
to the Administrative Agent and the Borrowers (an “Accession
Agreement”)
and
(ii) shall complete and deliver to the Administrative Agent a completed
Administrative Questionnaire. New Commitments and increases in Commitments
pursuant to this Section shall become effective on the date specified in the
applicable notices delivered pursuant to this Section (each an “Increase
Date”).
Upon
the effectiveness of any Accession Agreement to which any Increasing Lender
not
already a Lender hereunder is a party, such Increasing Lender shall thereafter
be deemed to be a party to this Agreement and shall be entitled to all rights,
benefits and privileges accorded a Lender hereunder and subject to all
obligations of a Lender hereunder and Schedule 2.01 shall be deemed to have
been
amended to reflect the Commitment of such Increasing Lender as provided in
such
Accession Agreement. Upon the effectiveness of any increase pursuant to this
Section in the Commitment of a Lender already a party hereto, Schedule 2.01
shall be deemed to have been amended to reflect the increased Commitment of
such
Lender. Notwithstanding the foregoing, no increase in the aggregate Commitments
(or in the Commitment of any Lender) shall become effective under this Section
unless, on the applicable Increase Date, the Administrative Agent shall have
received a certificate, dated as of the effective date of such increase and
executed by a Financial Officer of each Borrower, to the effect that the
conditions set forth in paragraphs (a) and (b) of Section 4.03 shall be
satisfied (with all references in such paragraphs to a Borrowing being deemed
to
be references to such increase). On the applicable Increase Date of any
extension of a new Commitment or increase of a Lender’s Commitment, each
Increasing Lender shall pay to the Administrative Agent, in the same manner
as
provided in Section 2.04 with respect to Loans made by such Increasing Lender
(and Section 2.04 shall apply, mutatis mutandis,
to the
payment obligations of each Increasing Lender), (x) in the case of an Increasing
Lender not already a party hereto, an amount equal to such Increasing Lender’s
ratable portion of the Borrowings then outstanding and the portion of the LC
Exposure funded by the Lenders pursuant to Section 2.05(d) (in each case
calculated based on its Commitment as a percentage of the aggregate Commitments
outstanding after giving effect to the relevant Commitment Increase) or (y)
in
the case of an Increasing Lender already a party hereto, an amount equal to
the
excess of (1) such Increasing Lender’s ratable portion of the Borrowings then
outstanding and the portion of the LC Exposure funded by the Lenders pursuant
to
Section 2.05(d) (in each case calculated based on its Commitment as a percentage
of the aggregate Commitments outstanding after giving effect to the relevant
Commitment Increase) over (2) such Increasing Lender’s ratable portion of
the Borrowings then outstanding and the portion of the LC Exposure funded by
the
Lenders pursuant to Section 2.05(d) (in each case calculated based on its
Commitment (without giving effect to the relevant Commitment Increase) as a
percentage of the aggregate Commitments (without giving effect to the relevant
Commitment Increase)). After the Administrative Agent’s receipt of such funds
from each Increasing Lender, the Administrative Agent will promptly thereafter
cause to be distributed like funds to the other Lenders in an amount to each
other Lender such that the aggregate amount of Borrowings owing to each Lender
and such Lender’s share of the portion of the LC Exposure funded by the Lenders
pursuant to Section 2.05(d) after giving effect to such distribution equals
such
Lender’s ratable portion of the Borrowings then outstanding and the portion of
the LC Exposure funded by the Lenders pursuant to Section 2.05(d) (calculated
based on its Commitment as a percentage of the aggregate Commitments outstanding
after giving effect to the relevant Commitment Increase). At the request of
either Borrower, the Administrative Agent or the Increasing Lender, each of
the
Borrowers, the Administrative Agent and the Increasing Lender shall enter into
any amendments to the Security Documents or take any other actions for the
purpose of naming the Increasing Lender as a Secured Party
thereunder.
SECTION
2.08. Repayment of
Loans.
Each
Borrower hereby unconditionally promises to pay to the Administrative Agent
on
the Maturity Date, for the account of each Lender, the then unpaid principal
amount of each Loan made to such Borrower.
SECTION
2.09. Evidence
of Debt. (a)
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.
(b)
The
Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the Type 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.
(c)
The
entries made in the accounts maintained pursuant to paragraph (a)
or (b) of this Section shall be prima facie
evidence
of the existence and amounts of the obligations recorded therein; provided
that the
failure of any Lender or the Administrative Agent to maintain such accounts
or
any error therein shall not in any manner affect the obligation of either
Borrower to repay the Loans in accordance with the terms of this
Agreement.
(d)
Any
Lender may request that Loans 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 10.04) 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
2.10. 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 Maturity Date that the sum of
the
Exposures exceeds the total Commitments, the Borrowers shall prepay Borrowings
in an aggregate amount equal to such excess; provided
that if
no Borrowings are outstanding and the LC Exposure exceeds the total Commitments,
the Borrowers shall provide cash collateral in an aggregate amount equal to
such
excess in accordance with Section 2.05(j).
(c)
The
applicable Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., 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 11:00 a.m., 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 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, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in an amount
that would be permitted in the case of an advance of a Borrowing of the same
Type as provided in Section 2.02. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by
Section 2.12.
SECTION
2.11. Fees. (a)
The
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
unused amount of the Commitment of such Lender during the period from and
including the Effective Date to but excluding the date on which such Commitment
terminates. 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 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 Commitment of a Lender shall be deemed to be used to the extent of
the
outstanding Loans and LC Exposure of such Lender.
(b)
Each
Borrower agrees to pay (i) to the Administrative Agent for the account of
each Lender a participation fee with respect to each Lender’s participation in
Letters of Credit requested by such Borrower, which shall accrue at the same
Applicable Rate as interest on Eurodollar 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
Commitment terminates and the date on which such Lender ceases to have any
LC
Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue
at the rate or rates per annum separately agreed upon between the Borrowers
and
the Issuing Bank on the average daily amount of the 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
of
termination of the Commitments and the date on which there ceases to be any
LC
Exposure, as well as the 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 Commitments terminate (and,
if later, the date on which there ceases to be any Exposure) and any such fees
accruing after the date on which the Commitments terminate shall be payable
on
demand. Any other fees payable to the 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 the Issuing Bank, in the case of
fees
payable to it) for distribution, in the case of commitment fees and
participation fees, to the Lenders. Fees paid shall not be refundable under
any
circumstances.
SECTION
2.12. Interest. (a)
The
Loans
comprising each ABR Borrowing shall bear interest at the Alternate Base
Rate plus the Applicable Rate.
(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.
(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
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 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 upon termination
of
the 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 Loan prior to the termination of
the
Commitments), 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 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 the Issuing Bank; or
(ii) impose
on
any Lender or the 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 the 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 the 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 the Issuing
Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or the 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 the 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 the Issuing Bank’s capital or on the capital of such Lender’s or the
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 the Issuing Bank, to a level below that
which
such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding
company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the Issuing Bank’s policies and the policies of
such Lender’s or the Issuing Bank’s holding company with respect to capital
adequacy), by an amount which such Lender in its sole judgment deems to be
material in the context of this Agreement and its Loans, Commitments and
participations in Letters of Credit hereunder, then from time to time the
Borrowers will pay to such Lender or the Issuing Bank, as the case may be,
such
additional amount or amounts as will compensate such Lender or the Issuing
Bank
or such Lender’s or the Issuing Bank’s holding company for any such reduction
suffered.
(d)
A
certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the 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 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 to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s
right to demand such compensation; provided
that the
Borrowers shall not be required to compensate a Lender or the 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 the Issuing Bank, as
the case may be, notifies the Borrowers of the Change in Law giving rise to
such
increased costs or reductions and of such Lender’s or the 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(c) and is revoked in accordance therewith), or
(d) the assignment of any Eurodollar Loan to a Borrower other than on the
last day of the Interest Period applicable thereto as a result of a request
by
the Borrowers 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.
SECTION
2.16. Taxes. (a)
Any
and
all payments by or on account of any obligation of either Borrower 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 the 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 the 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. A certificate as to the amount
of such payment or liability delivered to a Borrower by a Lender or the Issuing
Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender
or the 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)
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 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 advising it of the availability
of
such exemption or reduction and supplying all applicable
documentation.
(f)
PTFI
shall pay to the relevant Governmental Authority when due all Indonesian Taxes
in accordance with applicable law.
(g)
PTFI
shall indemnify the Administrative Agent, the FI Trustee, each Lender (or
permitted assignee or Participant) and the Issuing Bank against, and shall
reimburse the Administrative Agent, the FI Trustee, each Lender (or permitted
assignee or Participant) and the Issuing Bank upon demand for, the full amount
of any Indonesian Taxes paid by the Administrative Agent, the FI Trustee, such
Lender (or permitted assignee or Participant) or the Issuing Bank, and any
loss,
liability, claim or expense (including interest, penalties, fines, surcharges
and legal fees) which the Administrative Agent, the FI Trustee, such Lender
(or
permitted assignee or Participant) or the 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 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
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 the Lender (or permitted
assignee or Participant), the FI Trustee, the Issuing Bank or the Administrative
Agent, as the case may be, makes written demand therefor.
(h)
Except
as
otherwise expressly provided in paragraph (k) 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), the Issuing Bank
or the Administrative Agent hereunder (including amounts payable under
Section 2.16(f) or 2.16(g)) 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), the Issuing Bank, the FI
Trustee 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), the Issuing Bank, the FI Trustee or
the
Administrative Agent under this Agreement, any other applicable Loan Document
or
any promissory note issued hereunder.
(i)
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 FI Trustee or the Administrative Agent any other
information, documents and receipts that such Lender (or permitted assignee
or
Participant), the Issuing Bank, 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.
(j)
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.
(k)
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
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(k), 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(k) 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.
(l)
Nothing
contained in this Section 2.16 shall require the Administrative Agent, the
FI
Trustee, the Issuing Bank or any Lender (or permitted assignee or Participant)
to make available any of its income tax returns or any other information that
it
deems to be confidential or proprietary.
SECTION
2.17. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs. (a)
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 the Issuing Bank as expressly provided
herein and except that payments pursuant to Sections 2.14 (other than
paragraph (b) thereof), 2.15, 2.16 and 10.03 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 Loans
or
participations in LC Disbursements resulting in such Lender receiving payment
of
a greater proportion of the aggregate amount of its Loans and participations
in
LC Disbursements 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 Loans and participations
in LC Disbursements 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
Loans and participations in LC Disbursements; 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 the 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 the 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 the Issuing Bank,
as
the case may be, severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender or the 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(b), 2.17(d) or 10.03(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 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, then the Borrowers may, at their 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 10.04), 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, 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,
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)
and (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. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrowers to require such
assignment and delegation cease to apply.
ARTICLE
III
Representations
and Warranties
Each
of
FCX and PTFI represents and warrants to the Lenders that:
SECTION
3.01. Organization;
Powers.
Each
Borrower and each of its Restricted Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business
as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION
3.02. Authorization;
Enforceability.
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 legal, 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 and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at
law.
SECTION
3.03. Governmental
Approvals; No Conflicts.
The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such
as
have been obtained or made and are in full force and effect and except filings
necessary to perfect Liens created under the Loan Documents, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of either Borrower or any of its Restricted
Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon either Borrower or any of its Subsidiaries or its
assets, or give rise to a right thereunder to require any payment to be made
by
either Borrower or any of its Restricted Subsidiaries 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.
SECTION
3.04. Financial
Condition; No Material Adverse Change. (a)
The
Borrowers have heretofore furnished to the Lenders FCX’s consolidated balance
sheet and statements of income, stockholders’ equity and cash flows (i) as
of and for the fiscal year ended December 31, 2005, reported on by Ernst
& Young LLP, independent registered public accounting firm, and (ii) as
of and for the fiscal quarter and the portion of the fiscal year ended March
31,
2006, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results
of
operations and cash flows of FCX and its consolidated Subsidiaries as of such
dates and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) above.
(b)
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.
(c)
Since
December 31, 2005, there has been no material adverse change in (a) the
business, assets, operations, prospects or condition, financial or otherwise,
of
FCX and its Subsidiaries, taken as a whole, or of PTFI and its
Subsidiaries, taken as a whole, including, without limitation, changes in
ratings of debt of either Borrower that have a material adverse effect on such
prospects, (b) the ability of any Loan Party to perform any of its
obligations under any Loan Document or (c) the rights of or benefits
available to the Lenders under any Loan Document.
SECTION
3.05. Properties. (a)
Each
of
the Borrowers and each of the Restricted Subsidiaries has good title to, or
valid leasehold interests in, all its real and personal property material to
its
business, except for Liens permitted by Section 6.02.
(b)
Each
Borrower and each of the Restricted Subsidiaries owns, or is licensed to use,
all trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrowers and the
Restricted Subsidiaries does not infringe upon the rights of any other Person,
except for any such infringements that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.
SECTION
3.06. Litigation
and Environmental Matters. (a)
There
are
no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of either Borrower, threatened
against or affecting either Borrower or any of its Subsidiaries (i) as to
which there is a reasonable possibility of an adverse determination and that,
if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the
Transactions.
(b)
Except
for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Effect, neither Borrower nor any of its 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
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c)
Since
the
date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.
SECTION
3.07. Compliance
with Laws and Agreements.
Each
Borrower and its Subsidiaries is in compliance in all material respects with
all
laws, regulations and orders of any Governmental Authority applicable to it
or
its property and all indentures, agreements (including without limitation,
in
the case of PTFI, the Contract of Work) and other instruments binding upon
it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. Schedule 3.07 sets forth all such significant agreements and commitments
with Governmental Authorities in effect as of the Effective Date. No Default
has
occurred and is continuing.
SECTION
3.08. Investment
Company Status.
Neither
Borrower nor any of its Subsidiaries is an “investment company” as defined in,
or subject to regulation under, the Investment Company Act of 1940.
SECTION
3.09. Taxes.
Each
Borrower and its Subsidiaries has timely filed or caused to be filed all
material Tax returns and reports required to have been filed by it and has
paid
or caused to be paid all Taxes required to have been paid by it, except any
Taxes that are being contested in good faith by appropriate proceedings and
for
which such Borrower or such Subsidiary, as applicable, has, to the extent
required by GAAP, set aside on its books adequate reserves.
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, could reasonably be expected to result in a Material Adverse Effect.
The
present value of all accumulated benefit obligations under each Plan (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 by more than $10,000,000 the fair market value
of the assets of such Plan, and the present value of all accumulated benefit
obligations of 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
by
more than $10,000,000 the fair market value of the assets of all such
underfunded Plans.
SECTION
3.11. Disclosure.
Neither
the Confidential Information Materials nor any of the other reports, financial
statements, certificates or other information furnished by any Loan Party or
on
behalf of, and with the authorization of, any Loan Party 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) contains any material
misstatement of fact or omits to state any material fact necessary to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided
that,
with respect to projected financial information, each Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
SECTION
3.12. Subsidiaries.
Schedule 3.12 sets forth the name of, and the ownership interest of each
Borrower and each Subsidiary in, each Subsidiary of such Borrower and identifies
each Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, in
each case as of the Effective Date.
SECTION
3.13. Insurance.
Schedule
3.13 sets forth a description of all material insurance maintained by or on
behalf of each Borrower and its Restricted Subsidiaries as of the Effective
Date. As of the Effective Date, all premiums in respect of such insurance have
been paid and such insurance is in full force and effect. Each Borrower believes
that the insurance maintained by or on behalf of such Borrower and its
Restricted Subsidiaries is adequate.
SECTION
3.14. Labor
Matters.
As of
the Effective Date, there are no strikes, lockouts or slowdowns against either
Borrower or any Restricted Subsidiary pending or, to the knowledge of either
Borrower, threatened. The hours worked by and payments made to employees of
each
Borrower and the Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters. All payments due from either Borrower or any
Subsidiary, or for which any claim may be made against such Borrower or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of such
Borrower or such Subsidiary. 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 either Borrower or
any
Subsidiary is bound.
SECTION
3.15. Security
Documents.
At any
time on or after the Initial Borrowing Availability Date, the Liens created
by
(a) the FI Security Documents will be in full force and effect and
constitute first priority (except for Liens expressly permitted by
Section 6.02), upon execution of the FI Security Documents Amendments (and,
in the case of the Third Amended and Restated Fiduciary Transfer, the Third
Amended and Restated Fiduciary Assignment, the Third Amended and Restated JAA
Fiduciary Transfer or the Third 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
Security Agent or the JAA Security Agent, as the case may be, for the ratable
benefit of the Secured Parties (other than RTZ-IIL), in the property and assets
stated to be subject to each such FI Security Document, (b) upon execution
thereof and upon service of notice of the pledge on the party against whom
the
pledged rights must be exercised, the FCX Pledge Agreements will be in full
force and effect and will constitute first priority, perfected security
interests in favor of the Security Agent for the ratable benefit of the Secured
Parties (other than RTZ-IIL) in the Pledged PTFI Shares, the Pledged PTII Shares
and the Indebtedness owing to FCX pledged thereunder and (c) upon execution
thereof and registration thereof at the Fiduciary Registration Office - Jakarta
Region, the Third Amended and Restated Lender Fiduciary Assignment will be
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 Secured Parties (other than
RTZ-IIL) in the Indebtedness owing to PTFI pledged thereunder.
SECTION
3.16. Assigned
Agreements.
Schedule 3.16 (as updated from time to time as required hereby) is a
complete and correct list of each currently effective Major Concentrate Sales
Agreement (copies of which have heretofore been furnished to the Administrative
Agent). PTFI is not in default in any material respect in its obligations under
any Assigned Agreement nor, to its knowledge, is any counterparty to any such
agreement in default in its obligations in any respect that could materially
and
adversely affect the ability of PTFI to perform its obligations under the Loan
Documents.
SECTION
3.17. 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 of, or which is inconsistent with,
Regulations U, T or X of the Board. As of each date when this
representation is made or deemed made, not more than 25% of the value of the
assets subject to the provisions of Section 6.02 and 6.05 will consist of
Margin Stock (as defined in Regulation U of the Board).
ARTICLE
IV
Conditions
SECTION
4.01. Effective
Date.
The
amendment and restatement of the Existing Credit Agreement in the form of this
Agreement shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with
Section 10.02):
(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 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 good standing of the Borrowers, the authorization
of
the Transactions and any other legal matters relating to the Borrowers, the
Loan
Documents or the Transactions, all in form and substance 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 4.03.
(d) The
Borrowers shall have terminated all commitments under the Existing Credit
Agreement and terminated all letters of credit issued thereunder and 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 X.X. Xxxxxx Securities by
the Borrowers in respect of this Agreement and (ii) 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 this Agreement or under any other Loan Document.
(f) The
Administrative Agent shall have received evidence that the insurance required
by
Section 5.07 and the Security Documents is in effect.
(g) No
judgment, order or decree shall be outstanding, and no action, suit, litigation
or other proceeding shall have been taken by or before any Governmental
Authority, that has or is reasonably likely to have the effect of restraining,
preventing or imposing materially adverse conditions upon the Transactions,
or
the full and timely performance by either Borrower of its obligations under
any
Loan Document.
(h) 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, and all applicable waiting periods and appeal periods shall
have
expired, in each case without the imposition of any burdensome
conditions.
(i) The
Lenders shall have received copies of all agreements and commitments listed
on
Schedule 3.07 and Schedule 3.16.
(j) The
Lenders shall have received detailed projections of the Borrowers and their
Subsidiaries covering fiscal year 2006 through fiscal year 2009, including
disclosure of underlying assumptions, all in form and substance reasonably
satisfactory to the Administrative Agent.
(k)
The
Lenders shall have received, to the extent requested, all documentation and
other information reasonably requested by the Lenders or the Administration
Agent under applicable “know your customer” and anti-money laundering rules and
regulations, including the Patriot Act.
(l) The
Lenders shall have received the ERM Report.
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. Initial
Borrowing Availability Date.
The
obligations of the Lenders to make Loans and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit hereunder, and the incorporation
of
the Existing Letters of Credit as Letters of Credit hereunder, shall not become
effective until the first date after the Effective Date on which each of the
following conditions is satisfied (or waived in accordance with
Section 10.02):
(a) The
Administrative Agent (or its counsel) shall have received from each party to
any
Loan Document either (i) a counterpart of each Loan Document signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of such Loan Document) that such party has signed a counterpart
of such Loan Document.
(b) The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Initial Borrowing
Availability Date) of each of (i) Jones, Walker, Xxxxxxxx, Poitevant,
Carrère & Xxxxxxx, L.L.P., U.S. counsel for the Borrowers,
(ii) Indonesian counsel for the Borrowers, and (iii) Indonesian
counsel for the Lenders, in each case in form and substance satisfactory to
the
Administrative Agent and the Required Lenders and, in the case of each such
opinion required by this paragraph, covering such other matters relating to
either Borrower, the Loan Documents or the Transactions as the Administrative
Agent shall reasonably request. Each Borrower hereby requests the counsel
referred to in clauses (i) and (ii) above, and each Lender hereby requests
the counsel referred to in clause (iii), to deliver such
opinions.
(c) The
Administrative Agent shall have received such documents and certificates as
the
Administrative Agent or its counsel may reasonably request (other than those
previously delivered under Section 4.01) relating to the organization,
existence and good standing of each Loan Party, the authorization of the
Transactions and any other legal matters relating to the Borrowers, the Loan
Documents or the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The
Administrative Agent shall have received a certificate, dated the Initial
Borrowing Availability 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 4.03.
(e) The
Administrative Agent shall have received a completed Perfection Certificate
dated the Initial Borrowing Availability Date and signed by an executive officer
or Financial Officer of each Borrower, together with all attachments
contemplated thereby, including the results of a search of the Uniform
Commercial Code (or equivalent) filings made with respect to the Loan Parties
in
the jurisdictions contemplated by the Perfection Certificate and copies of
the
financing statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the Liens
indicated by such financing statements (or similar documents) are permitted
by
Section 6.02 or have been released.
(f) The
Collateral and Guarantee Requirement shall have been satisfied and each of
the
FI Security Documents Amendments, FCX Pledge Agreements and Subsidiary Guarantee
Agreements shall have been duly executed and delivered and the FI Security
Documents, the FCX Pledge Agreements and the Subsidiary Guarantee Agreements
shall be in full force and effect.
(g) All
consents and approvals required to be obtained from any Governmental Authority
or other Person in connection with the Transactions shall have been obtained,
and all applicable waiting periods and appeal periods shall have expired, in
each case without the imposition of any burdensome conditions.
(h) 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.
(i) The
Administrative Agent shall have received all fees accrued under this Agreement
through the date immediately preceding the Initial Borrowing Availability Date
and all other amounts due and payable under this Agreement on or prior to the
Initial Borrowing Availability Date. JPMCB shall have received all fees and
other amounts accrued through the date immediately preceding the Initial
Borrowing Availability Date.
The
Administrative Agent shall notify the Borrowers and the Lenders of the Initial
Borrowing Availability Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder and of the Issuing Bank to issue, amend, renew or extend any Letter
of
Credit hereunder, and the incorporation of the Existing Letters of Credit as
Letters of Credit hereunder, shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 10.02) at
or prior to 12:00 p.m., New York City time, on August 7, 2006 (and, in the
event
such conditions are not so satisfied or waived, the Commitments shall terminate
at such time).
SECTION
4.03. Each
Credit Event.
The
obligation of each Lender to make a Loan on the occasion of any Borrowing or
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) 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.
(b) At
the
time of and immediately after giving effect to such Borrowing or issuance of
such Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each
Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by each
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,
the Agents and the FI Trustee that:
SECTION
5.01. Financial
Statements and Other Information.
Each
Borrower will furnish to the Administrative Agent and each Lender:
(a) within
95 days after the end of each fiscal year of such Borrower, (i) an audited
consolidated balance sheet of such Borrower and its consolidated Subsidiaries
and related consolidated statements of operations, stockholders’ equity and cash
flows as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on
by
Ernst & Young LLP or another registered independent public accounting
firm 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 Borower and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, (ii) unaudited consolidating
financial statements relating to each of the financial statements referred
to in
clause (i) and (iii) an unaudited combined balance sheet of such Borrower and
its Restricted Subsidiaries, and related unaudited combined statements of
operations and cash flows as of the end of and for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year
(in each case accounting for Unrestricted Subsidiaries as investments without
using the equity method of accounting), certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of such Borrower and its Restricted Subsidiaries
on a
combined basis in accordance with GAAP (except as specified above with respect
to Unrestricted Subsidiaries) consistently applied;
(b) within
50 days after the end of each of the first three fiscal quarters of each
fiscal year of such Borrower, or such earlier date that is 10 days after
the date on which FCX’s Quarterly Report on Form 10-Q for such quarter is
required to be filed with the Securities and Exchange Commission, (i) an
unaudited consolidated balance sheet of such Borrower and its consolidated
Subsidiaries and related consolidated statements of operations and cash flows
as
of the end of and for such fiscal quarter and 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 Borrower and its consolidated Subsidiaries
on
a consolidated basis in accordance with GAAP consistently applied, subject
to
normal year-end audit adjustments and the absence of footnotes and (ii) an
unaudited combined balance sheet of each Borrower and its Restricted
Subsidiaries, and related unaudited combined statements of operations and cash
flows as of the end of and for such fiscal quarter and 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 such balance
sheet, as of the end of) the previous fiscal year (in each case accounting
for
Unrestricted Subsidiaries as investments without using the equity method of
accounting), certified by one of its Financial Officers as presenting fairly
in
all material respects the financial condition and results of operations of
such
Borrower and its Restricted Subsidiaries on a combined basis in accordance
with
GAAP (except as specified above with respect to Unrestricted Subsidiaries)
consistently applied, subject to normal year-end adjustments and the absence
of
footnotes;
(c) concurrently
with any delivery of financial statements under clause (a) or
(b) above, a certificate of a Financial Officer of such Borrower
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to
be
taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with the Financial Covenants,
(iii) setting forth reasonably detailed calculations showing the amount of
Restricted Payments permitted pursuant to clause (iii)(B) of
Section 6.08(a), including (A) the aggregate amounts of all Investments
made since the end of the previous fiscal quarter pursuant to Section 6.04(p)
and (B) the aggregate amount of all Restricted Payments made since the end
of
the previous fiscal quarter pursuant to clause (iii)(B) of Section 6.08(a),
(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 formed or acquired since the end of the
previous fiscal quarter and indicating whether each such Subsidiary is a
Restricted Subsidiary or a Unrestricted Subsidiary, (vi) identifying any
changes of the type described in Section 5.03 that have not been previously
reported by the Borrowers and (vii) certifying as to compliance with all
Indonesian 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 accounting firm that reported on such financial statements
stating whether they obtained knowledge during the course of their examination
of such financial statements of any Default (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 such Borrower, a
detailed consolidated budget for such fiscal year (including a projected
consolidated balance sheet and related statements of projected operations and
cash flow and a statement of projected capital expenditures, in each case as
of
the end of and for such fiscal year, and setting forth the commodity price,
mine
plan and other significant mine operating assumptions used for purposes of
preparing such budget) and, promptly when available, any significant revisions
of such budget;
(f) promptly
after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by either Borrower or any
Restricted Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by such
Borrower to its shareholders generally, as the case may be;
(g) promptly
after Xxxxx’x or S&P shall have announced a Credit Rating change, written
notice of such change in Credit Rating;
(h) 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 an adverse effect upon the FI Collateral and
Rights (i) by or to Indonesian Governmental Authorities in connection with
the FI Project or pursuant to the Contract of Work or the Memorandum of
Understanding, (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 (iii) by or to PTFI or its Affiliates pursuant to any
agreement governing Material Indebtedness or any infrastructure asset financing
transaction, and (y) a copy of any proposed amendment to the Contract of Work,
Memorandum of Understanding or such governing agreement prior to execution
and
delivery thereof; and
(i) promptly
following any request therefor, such other information regarding the operations,
business affairs and financial condition of such Borrower or any 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.
Each
Borrower will furnish to the Administrative Agent and each Lender prompt 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 such Borrower or
any
Affiliate thereof that, if adversely determined, could reasonably be expected
to
result in a Material Adverse Effect;
(c) the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability
of such Borrower and its Subsidiaries in an aggregate amount exceeding
$25,000,000 or requires payment by such Borrower exceeding $10,000,000 in any
year; and
(d) any
other
development that results in, or could reasonably be expected to result in,
a
Material Adverse Effect.
Each
notice delivered under this Section shall be accompanied by a statement of
a
Financial Officer or other executive officer of the applicable Borrower setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
SECTION
5.03. Information
Regarding Collateral.
Each
Borrower will furnish to the Administrative Agent and the Security Agent prompt
written notice of any change (i) in such Borrower’s corporate name,
(ii) in such Borrower’s identity or corporate structure, (iii) in such
Borrower’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
(iv) in the jurisdiction of such Borrower’s organization. Each Borrower
agrees not to effect or permit any change referred to in the preceding sentence
unless all filings have been made under the Uniform Commercial Code or otherwise
that are required in order for the Security Agent to continue at all times
following such change to have a valid, legal and perfected security interest
in
all the Collateral. Each Borrower also agrees promptly to notify the
Administrative Agent and the Security Agent if any material portion of the
Collateral is damaged or destroyed.
SECTION
5.04. Existence;
Conduct of Business.
Each
Borrower will, and will cause each of its Restricted Subsidiaries to, do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence and the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business; provided
that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03.
SECTION
5.05. Payment
of Obligations.
Each
Borrower will, and will cause each of its Restricted Subsidiaries to, pay its
Indebtedness and other obligations, including Tax liabilities, before the same
shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings,
(b) such Borrower or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (c) such contest
effectively suspends collection of the contested obligation and the enforcement
of any Lien securing such obligation.
SECTION
5.06. Maintenance
of Properties.
Each
Borrower will, and will cause each of its Restricted Subsidiaries to, keep
and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
SECTION
5.07. Insurance.
Each
Borrower will, and will cause each of its Restricted Subsidiaries to, maintain,
with financially sound and reputable insurance companies (a) insurance in
such amounts, with such risk retention 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 and (b) all insurance
required to be maintained pursuant to the Security Documents. All such policies
of insurance covering physical loss or damage to Collateral shall be endorsed
or
otherwise amended to include the Security Agent as loss payee as its interests
may appear, in form and substance satisfactory to the Security Agent and
otherwise in accordance with Section 10 of the Lender Security Agreement,
as amended by the Lender Security Agreement Amendments. The proceeds of any
political risk insurance of FCX or PTFI shall be applied promptly to the
prepayment of Loans and permanently reduce the Commitments in an amount equal
to
such prepayment. Each 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.
Each
Borrower (a) will furnish to the Administrative Agent, the Security Agent
and the Lenders 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 Collateral or any part thereof or interest
therein under power of eminent domain or by condemnation or similar proceeding
and (b) will ensure that the Net Proceeds of any such event (whether in the
form of insurance proceeds, condemnation awards or otherwise) are collected
and
applied in accordance with the applicable provisions of this Agreement and
the
other Loan Documents.
SECTION
5.09. Books
and Records; Inspection and Audit Rights.
Each
Borrower will, and will cause each of its Restricted Subsidiaries to, keep
proper books of record and account sufficient to permit the preparation of
financial statements in accordance with GAAP. Each Borrower will, and will
cause
each of its Restricted Subsidiaries to, permit any representatives designated
by
the Administrative Agent or any Lender, upon reasonable prior notice, 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, all at such reasonable times and as often as
reasonably requested.
SECTION
5.10. Compliance
with Laws; Environmental Reports. (a)
Each
Borrower will, and will cause each of its Subsidiaries 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, could not reasonably be expected to result in a Material Adverse
Effect and (ii) comply with all Indonesian Filing Requirements.
(b)
Each
Borrower will comply, and cause its Subsidiaries to comply, in all material
respects with all Environmental Laws applicable to its operations and
properties; obtain and renew all material environmental permits necessary for
its operations and properties; and conduct any remedial actions in compliance
with applicable Environmental Laws; provided,
however,
that
the Borrowers and their Subsidiaries shall not be required to undertake any
remedial action to the extent that its obligation to do so is being contested
in
good faith and by proper proceedings and appropriate reserves, 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 Lenders through the Administrative Agent, provide to
the
Lenders within 45 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 acceptable to the
Administrative Agent and indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance or remedial action in
connection with such properties.
(c)
Each
Borrower will in good faith and with all reasonable efforts, and will similarly
cause each of its Restricted Subsidiaries to, in all material respects, operate
its future major new mining projects and related activities in accordance with
applicable IFC Guidelines and World Bank Guidelines in existence on the
Effective Date and as referenced in Annex A to the ERM Report, as appropriate
to
the nature of the new major project undertaken, including with respect to the
Otomona River at closure. With respect to existing operations, PTFI will
maintain majority compliance with applicable World Bank Guidelines and IFC
Guidelines in existence on the Effective Date, except where noted and accepted
in the ERM Report. For those World Bank and IFC parameters not currently
monitored, PTFI will undertake to perform additional monitoring where practical,
and if after sufficient data collection, any of these parameters is found to
be
outside of desired performance criteria, PTFI will undertake to study the
technical and economic feasibility of bringing those into the desired
performance criteria. In addition, the Borrower 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 of its Restricted Subsidiaries to, in good
faith, use all 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)
The
Lenders shall have the right, at Borrower’s expense, to have ERM or another
consultant reasonably acceptable to the Borrower update the ERM Report once
during the term of this facility. The Borrower will promptly and in good faith
report to the Agents and the Lenders any unanticipated significant adverse
environmental, social or health and safety developments.
SECTION
5.11. Use
of
Proceeds and Letters of Credit.
The
proceeds of the Loans will be used to refinance any borrowings outstanding
under
the Existing Credit Agreement and for general corporate purposes of the
Borrowers. No part of the proceeds of any Loan will be used, whether directly
or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations T, U and X. Letters of Credit will be
issued only to support payment obligations of either Borrower or any of the
Subsidiaries incurred in the ordinary course of business.
SECTION
5.12. Additional
Subsidiaries.
If any
additional Restricted Subsidiary is formed or acquired after the Effective
Date,
each Borrower will, within ten Business Days after such Subsidiary is formed
or
acquired, notify the Administrative Agent, the Security Agent and the Lenders
thereof and cause the Collateral and Guarantee Requirement to be satisfied
with
respect to such Restricted Subsidiary and any intercompany Indebtedness owed
by
such Subsidiary to a Borrower.
SECTION
5.13. Further
Assurances.
On and
after the Initial Borrowing Availability Date,
(a)
Each
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 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 or the Security Agent, from time
to time upon reasonable request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created
or
intended to be created by the 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(d), (e), (f), (h), (m)
or
(o) 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 shall comply with the provisions of the FI Security Documents and
maintain in full force and effect all the rights, powers and benefits of the
FI
Trustee, 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 Third Amended and
Restated Surat Kuasa, the Third Amended and Restated Lender Surat Kuasa and
the
fiduciary transfers effectuated by the Third Amended and Restated Fiduciary
Transfer, the Third Amended and Restated Fiduciary Assignment, the Third Amended
and Restated Lender Fiduciary Assignment and the Third Amended and Restated
JAA
Fiduciary Transfer 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. Concentrate
Sales Agreements.
PTFI
will (a) promptly advise the Administrative Agent and the FI Trustee of any
changes to the information set forth on Schedule 3.16 and promptly assign
all Concentrate Sales Agreements in effect from time to time to the FI Trustee
under, and in accordance with, Article III of the FI Trust Agreement,
require the counterparties thereto to make all payments to PTFI thereunder
directly to the Sales Proceeds Account, (b) furnish to the Administrative
Agent and the FI Trustee copies of each Major Concentrate Sales Agreement
entered into after the Effective Date, and each amendment, waiver or supplement
to any Concentrate Sales Agreement which after such amendment, waiver or
supplement would for the first time be a Major Concentrate Sales Agreement
(together with the original Concentrate Sales Agreement that is subject of
such
amendment, waiver or supplement), in each case promptly after the execution
and
delivery thereof, and (c) promptly notify the Administrative Agent and the
FI Trustee of any material default under a Major Concentrate Sales Agreement
of
which it has knowledge. PTFI may permit Concentrate Sales Agreements to expire
or terminate in accordance with their terms.
SECTION
5.15. 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 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) Indebtedness
created under the Loan Documents;
(ii) Indebtedness,
including Guarantees, existing on the date hereof and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
or
result in an earlier maturity date that is prior to the date six months after
the Maturity Date or decreased weighted average life thereof;
(iii) Indebtedness
of such Borrower to the other Borrower or any Restricted Subsidiary and of
any
Restricted Subsidiary to either Borrower or any other Restricted Subsidiary;
provided
that
Indebtedness of any Restricted Subsidiary that is not a Loan Party owed to
any
Loan Party shall be subject to Section 6.04; provided,
further,
that
any such Indebtedness owing to a Borrower, including any Mirror Note, shall
be
pledged pursuant to the Second Amended and Restated FCX Pledge Agreement
(Indebtedness) or the Third Amended and Restated Lender Fiduciary Assignment
and
any promissory note evidencing any such Indebtedness, including any Mirror
Note,
shall be delivered to the Security Agent or Administrative Agent, as
appropriate;
(iv) secured
or unsecured Indebtedness of the Borrowers 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 Additional Infrastructure Financings,
and
extensions, renewals and replacements of any such Indebtedness or Attributable
Debt that do not result in an earlier maturity date or decreased weighted
average life thereof; 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;
(v) Indebtedness
of PTFI and/or FCX or Attributable Debt of PTFI or any Restricted Subsidiary
incurred in connection with any Additional Infrastructure Financing or any
PT Kencana Financing, and extensions, renewals and replacements of any such
Indebtedness or Attributable Debt that do not result in an earlier maturity
date
or decreased weighted average life thereof; provided
that the
aggregate principal amount of Indebtedness and the aggregate amount of
Attributable Debt permitted by this clause (v) (including any such
extensions, renewals and replacements) shall not exceed $300,000,000 at any
time
outstanding;
(vi) Block B
Debt of FCX, PTFI or a Restricted Subsidiary, provided
that
such Block B Debt satisfies the Block B Conditions;
(vii) [Intentionally
Omitted];
(viii) Permitted
FCX Indebtedness;
(ix) Indebtedness
of FCX Guaranteed on an unsecured basis by PTFI that, but for such Guarantee,
would constitute Permitted FCX Indebtedness, and Indebtedness of PTFI that,
but
for being the direct obligation of PTFI, otherwise meets the requirements of
Permitted FCX Indebtedness, provided
that the
aggregate principal amount of Indebtedness permitted by this clause (ix)
shall not exceed $250,000,000 at any time outstanding;
(x) Guarantees
by the Borrowers or any Restricted Subsidiary of Indebtedness of Unrestricted
Subsidiaries (including Guarantees secured by pledges of the Equity Interests
of
such Unrestricted Subsidiaries) permitted by Section 6.04(h);
(xi) at
any
time prior to the Initial Borrowing Availability Date, Indebtedness consisting
of obligations in respect of letters of credit issued by JPMCB for the account
of the Borrowers in a stated amount not in excess of $3,000,000;
(xii) 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; and
(xiii) other
Indebtedness of the Borrowers and 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 not in excess of
$25,000,000 at any time outstanding.
(b)
PTFI
will
not issue, and neither Borrower will permit any 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 $100,000,000;
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 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;
(b) Permitted
Encumbrances;
(c) any
Lien
on any property or asset of such Borrower or any Restricted Subsidiary existing
on the date hereof and set forth in Schedule 6.02; provided
that
(i) such Lien shall not apply to any other property or asset of such
Borrower or any Restricted Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the date hereof and extensions, renewals
and replacements thereof that do not increase the outstanding principal amount
thereof;
(d) Liens
on
fixed or capital assets acquired, constructed or improved by such Borrower
or
any Restricted Subsidiary; provided
that
(A) such security interests secure Indebtedness permitted by
clause (iv) of Section 6.01(a), (B) such security interests and
the Indebtedness secured thereby are incurred within 180 days prior to or within
180 days after such acquisition or the completion of such construction or
improvement, (C) the Indebtedness secured thereby does not exceed by more
than a de minimis amount the cost of acquiring, constructing or improving such
fixed or capital assets and (D) such security interests shall not apply to
any other property or assets of such Borrower or any Restricted
Subsidiary;
(e) Liens
on
Additional Infrastructure Assets securing Additional Infrastructure Financings;
provided
that (A)
such Liens secure only Indebtedness or Attributable Debt permitted by
Section 6.01(a)(v) and (B) such Liens do not apply to any other property or
assets of the Borrowers or any Restricted Subsidiaries;
(f) Liens
on
PT Kencana Assets securing a PT Kencana Financing; provided
that (A)
such Liens secure only Indebtedness or Attributable Debt permitted by
Section 6.01(a)(v) and (B) such Liens do not apply to any other property or
assets of the Borrowers or any Restricted Subsidiaries;
(g) required
margin deposits on Hedging Agreements permitted hereunder;
(h) Liens,
existing at the time of the acquisition by a Borrower or any Restricted
Subsidiary of the majority of the capital stock or all the assets of any other
Person or existing at the time of the merger of any such Person into it or
a
Restricted Subsidiary, on such capital stock or assets so acquired or on the
assets of the Person so merged into such Borrower or such Restricted Subsidiary;
provided,
however,
that
such acquisition or merger (and the discharge of such Liens referred to in
the
immediately succeeding proviso) shall not otherwise result in a Default; and
provided
further
that all
such Liens shall be discharged within 180 days after the date of such
acquisition or merger;
(i) as
permitted by Section 6.15, the RTZ Interests;
(j) Liens
on
Block B Assets securing Block B Debt; provided
that
such Liens and Block B Debt satisfy the Block B
Conditions;
(k) Liens
on
Equity Interests of Unrestricted Subsidiaries to secure Indebtedness of
Unrestricted Subsidiaries or to secure Guarantees of such Indebtedness by the
Borrowers or any Restricted Subsidiary permitted by
Section 6.04(h);
(l) Permitted
Interest Escrows securing Indebtedness permitted by Section 6.01(a)(viii)
or (ix);
(m) [Intentionally
Omitted];
(n) at
any
time prior to the Initial Borrowing Availability Date, cash collateral securing
reimbursement obligations in respect of letters of credit permitted pursuant
to
Section 6.01(a)(xi); and
(o) Liens
not
expressly permitted by clauses (a) through (n) securing Indebtedness permitted
pursuant to Section 6.01(a)(xiii) and Attributable Debt in respect of sale
and leaseback transactions permitted pursuant to
Section 6.06(c).
SECTION
6.03. Fundamental
Changes. (a)
Neither
Borrower will, nor will it permit any Restricted Subsidiary to, merge into
or
consolidate with any other Person, or permit any other Person to merge into
or
consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing, (i) any Restricted Subsidiary may merge into a
Borrower in a transaction in which such Borrower is the surviving corporation,
(ii) any Restricted Subsidiary may merge into any other Restricted
Subsidiary in a transaction in which the surviving entity is a Restricted
Subsidiary and (iii) any Restricted Subsidiary (other than PTFI) may
liquidate or dissolve if such Borrower determines in good faith that such
liquidation or dissolution is in the best interests of such Borrower and is
not
materially disadvantageous to the Lenders; provided
that any
such merger involving a Person that is not a wholly owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by
Section 6.04.
(b)
Each
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
engage to any material extent in any business other than businesses of the
type
conducted by such Borrower and its Restricted Subsidiaries on the Effective
Date
and businesses reasonably related thereto.
SECTION
6.04. Investments,
Loans, Advances, Guarantees and Acquisitions.
Each
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
purchase, hold, make or acquire (including pursuant to any merger with any
Person that was not a Wholly Owned Restricted Subsidiary prior to such merger)
any Investment in any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Permitted
Investments;
(b) Investments
existing on the date hereof and set forth on Schedule 6.04;
(c) Investments
in any Person; provided
that
immediately prior to and after giving effect to any such Investment (and giving
pro forma effect to any payment of cash or Borrowings hereunder in connection
with such Investment), Liquidity is not less than $250,000,000;
(d) Investments
made after the Effective Date by such Borrower and its Restricted Subsidiaries
in the Subsidiary Guarantors (including, without limitation, Guarantees of
Indebtedness of Subsidiary Guarantors); provided
that
(i) the aggregate amount of Investments by the Borrowers in the Subsidiary
Guarantors made (x) from the Effective Date through December 31, 2006,
shall not exceed $25,000,000 and (y) in any fiscal year ending on or after
December 31, 2007, shall not exceed $50,000,000 and (ii) any
promissory notes evidencing any such Investments consisting of loans or advances
made by a Borrower shall be pledged pursuant to the Second Amended and Restated
FCX Pledge Agreement (Indebtedness) or the Third Amended and Restated Lender
Fiduciary Assignment;
(e) trade
accounts receivable under the Concentrate Sales Agreements incurred in the
ordinary course of business and not more than 90 days overdue, or if overdue,
being pursued through appropriate collection action; any loans or advances
made
by a Borrower shall be pledged pursuant to the Second Amended and Restated
FCX
Pledge Agreement (Indebtedness) or the Third Amended and Restated Lender
Fiduciary Assignment;
(f) investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with, customers and suppliers, in each
case
in the ordinary course of business;
(g) Investments
made after the Effective Date in Unrestricted Subsidiaries and other Persons;
provided
that the
aggregate amount of such Investments (i) made from the Effective Date
through December 31, 2006, shall not exceed $17,500,000 and (ii) made
in any fiscal year ending on or after December 31, 2007, shall not exceed
$35,000,000; provided further
that the
issuance of any Letter of Credit for the account of an Unrestricted Subsidiary
shall be deemed to be an Investment in an Unrestricted Subsidiary in an amount
equal to the stated amount of such Letter of Credit;
(h) Investments
in Unrestricted Subsidiaries resulting solely from the designation of an
Exploration Subsidiary, or any holding company with no business or operations
other than the holding of Equity Interests in such Exploration Subsidiary,
as an
Unrestricted Subsidiary in accordance with Section 6.17; provided
that the
aggregate cumulative amount of Investments made by the Borrowers and the
Restricted Subsidiaries in such Exploration Subsidiaries and/or holdings
companies from the Effective Date until the effective date of such redesignation
does not exceed $40,000,000;
(i) Investments
in Unrestricted Subsidiaries resulting solely from the designation of
PT Kencana, PT Kencana Wisata, or any holding company with no business
or operations other than the holding of Equity Interests in PT Kencana
and/or PT Kencana Wisata, as an Unrestricted Subsidiary in accordance with
Section 6.17; provided
that (i)
such designation is only made upon consummation of a PT Kencana Financing
and (ii) at the time of such designation, PT Kencana or PT Kencana
Wisata, as the case may be, does not, directly or indirectly, own or hold any
significant assets other than PT Kencana Assets;
(j) acquisitions
of all the Equity Interests of a Person or substantially all the assets of
a
Person provided
that (i)
no Default exists at the time of or would result after giving effect to such
acquisition and (ii) the sole consideration for such acquisition consists of
common stock of FCX;
(k) Investments
consisting of non-cash consideration with respect to sale of assets permitted
by
Section 6.05;
(l) Guarantees
constituting Indebtedness otherwise permitted by Section 6.01;
(m) Investments
in PTFI made by FCX; provided
that any
promissory notes evidencing any such Investments consisting of loans or advances
made by FCX shall be pledged pursuant to the Second Amended and Restated FCX
Pledge Agreement (Indebtedness);
(n) Investments
in Atlantic Copper; provided
that (i)
the aggregate amount of such Investments from and after the Effective Date
shall
not exceed $75,000,000, (ii) all such Investments are made and utilized solely
for reducing debt under the Atlantic Copper Facility and (iii) proceeds of
Borrowings (other than Borrowings made pursuant to a Commitment Increase) shall
not be used to effect any such Investments if immediately after giving effect
thereto (and to any expenditures of cash required thereby) Liquidity would
be
less than $250,000,000;
(o) Investments
in PJP in an aggregate amount not to exceed $15,000,000 pursuant to the Option
Agreement dated July, 2003 between FCX and PT Austindo Nusantara Jaya
(“ANJ”)
or
otherwise pursuant to which FCX purchases all of ANJ’s capital stock in PJP;
and
(p) Investments
in any Person that are not otherwise permitted by this Section; provided
that
immediately prior to and after giving effect to any such Investment (and giving
pro forma effect to any payment of cash or Borrowings hereunder in connection
with such Investment), the Restricted Uses would not be greater than the
Restricted Uses Basket.
SECTION
6.05. Asset
Sales.
Each
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
sell, transfer, lease or otherwise dispose of any asset, including any Equity
Interest owned by it, nor will such Borrower permit any of its Restricted
Subsidiaries to issue any additional Equity Interest in such Restricted
Subsidiary, except:
(a) sales
of
inventory, used or surplus equipment and Permitted Investments in the ordinary
course of business;
(b) sales,
transfers and dispositions to a Borrower or a Restricted Subsidiary;
provided
that any
such sales, transfers or dispositions involving a Restricted Subsidiary (other
than PTFI) shall be made in compliance with Section 6.09 and, provided,
further,
that
PTFI will not transfer any significant operating assets, the Contract of Work
or
any rights thereunder or (except in connection with an Additional Infrastructure
Financing or sale and leaseback transaction permitted by Section 6.06) any
assets subject to any Lien under any of the Security Documents to any other
Person;
(c) transfers
of Block B Assets in transactions satisfying the Block B
Conditions;
(d) any
sale
of Transferred Shares in a Qualifying PTFI Sale Transaction;
(e) sales
of
assets as part of a sale and leaseback transaction permitted by
Section 6.06;
(f) any
sale
of Equity Interests in PT Kencana and/or PT Kencana Wisata in
connection with a PT Kencana Financing;
(g) 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;
(h) any
sale
of Equity Interests in Unrestricted Subsidiaries;
(i) sales
of
capital stock of PTFI (other than Pledged PTFI Shares) sold in a transaction
that is not a Qualifying PTFI Sale Transaction; provided
that the
aggregate amount of the capital stock of PTFI sold in reliance on this
clause (i), together with the aggregate amount of capital stock of PTFI or
PTII sold in a Qualifying PTFI Sale Transaction, shall not result in FCX owning,
either directly or though its wholly owned Subsidiaries, Equity Interests in
PTFI representing less than 80% of the aggregate voting power attributable
to
all of the issued and outstanding Equity Interests of PTFI;
(j) sales,
transfers and other dispositions of assets that are not permitted by clauses
(a)-(i); provided
that the
cumulative consideration for all assets sold, transferred or otherwise disposed
of in reliance upon this clause (j) (including the amount of any
Indebtedness transferred, assigned or assumed in connection with a sale of
Equity Interests) shall not exceed $100,000,000 in the aggregate;
and
(k) sales,
transfers and other dispositions of assets that are not permitted by any other
clause of this Section; provided
that the
net proceeds of such sale are applied to prepay Loans (and permanently reduce
Commitments by the aggregate amount of such prepayment of Loans) hereunder
within three Business Days of the receipt of such net proceeds; provided
further
that, if
the Borrowers shall deliver to the Administrative Agent a certificate of a
Financial Officer to the effect that (i) the Borrowers intend to reinvest such
net proceeds (or a portion thereof specified in such certificate), within 180
days after receipt of such net proceeds, in equipment or other tangible assets
to be used in the business of the Borrowers or the Restricted Subsidiaries
or
use such net proceeds to acquire the capital stock of an entity that, upon
its
acquisition, becomes a Restricted Subsidiary, and (ii) certifying that no
Default has occurred and is continuing, then no prepayment shall be required
pursuant to this paragraph in respect of such net proceeds (or the portion
of
such net proceeds specified in such certificate, if applicable) except to the
extent of any such net proceeds that have not been so applied by the end of
such
180-day period, at which time a prepayment shall be required in an amount equal
to such net proceeds that have not been so applied;
provided
that all
sales, transfers, leases and other dispositions permitted hereby (other than
those permitted by clause (b) and (d) above) shall be made for fair value
and for (i) 100% cash consideration in the case of transactions permitted
by clauses (a) and (e) and (ii) at least 75% cash consideration in the case
of transactions permitted by clauses (c), (f), (g), (h), (i), (j) and (k)
(disregarding any amounts of Indebtedness transferred, assigned or assumed
by
the purchaser in such transaction that is not owed to the Borrowers or their
Affiliates).
SECTION
6.06. Sale
and Leaseback Transactions.
Each
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
enter into any arrangement, directly or indirectly, whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereinafter acquired, and thereafter rent or lease such property
or
other property that it intends to use for substantially the same purpose or
purposes as the property sold or transferred, except for (a) any such sale
and
leaseback of any fixed or capital assets that is made for cash consideration
in
an amount not less than the cost of such fixed or capital asset and is
consummated within 180 days after such Borrower or such Restricted Subsidiary
acquires or completes the construction of such fixed or capital asset, (b)
any
such sale and leaseback of PT Kencana Assets as part of a PT Kencana
Financing or of Additional Infrastructure Assets as part of an Additional
Infrastructure Financing, provided
in each
case that such sale and leaseback is solely for cash and (c) any such sale
and leaseback of such 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) and the aggregate principal amount of the
Indebtedness permitted pursuant to Section 6.01(a)(xiii) shall not exceed
$25,000,000 at any time outstanding.
SECTION
6.07. Hedging
Agreements.
Each
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
enter into any Hedging Agreement, other than Hedging Agreements entered into
in
the ordinary course of business to hedge or protect against actual or reasonably
anticipated risks to which such Borrower or any Restricted Subsidiary is exposed
in the conduct of its business, and not in any event for
speculation.
SECTION
6.08. Restricted
Payments; Certain Payments of Indebtedness. (a)
Each
Borrower will not, nor will it permit any Restricted Subsidiary to, declare
or
make, or agree to pay or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, except so long
as no
Default or Event of Default shall have occurred and be continuing (or shall
result from the payment thereof), (i) Restricted Subsidiaries may declare and
pay dividends ratably with respect to their capital stock, (ii) 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 prospectus under
which such preferred stock was issued and (iii) FCX may make (A) Restricted
Payments in cash in any amounts to the extent that, immediately after giving
effect thereto (and giving pro forma effect to the payment of such cash),
Liquidity is not less than $250,000,000 and (B) Restricted Payments in cash
not otherwise permitted by clause (A), including Restricted Payments made
when Liquidity is less than $250,000,000 and Restricted Payments that cause
Liquidity to decrease below $250,000,000; provided
that no
Restricted Payments shall be made pursuant to this clause (B) if,
immediately after giving effect thereto (and to any expenditure of cash required
thereby), the Restricted Uses would be greater than the Restricted Uses
Basket.
(b)
Each
Borrower will not, nor will it permit any Restricted Subsidiary to, make or
agree to pay or make, directly or indirectly, any payment or other 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 payment
or other 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;
(ii) payment
of regularly scheduled interest and principal payments as and when due in
respect of any Indebtedness;
(iii) refinancings
of Indebtedness to the extent permitted by Section 6.01(a);
(iv) payment
of secured Indebtedness that becomes due as a result of the voluntary sale
or
transfer of the property or assets securing such Indebtedness;
(v) prepayments
of Indebtedness owed to either Borrower by the other Borrower or a Restricted
Subsidiary or owed to a Restricted Subsidiary by another Restricted Subsidiary,
provided
that
prepayments of Indebtedness owed to a Restricted Subsidiary that is not a Loan
Party shall be permitted only to the extent no Default has occurred and is
continuing at the time of such prepayment; and
(vi) payments
of Indebtedness that are not permitted by clauses (i)-(v) of this
Section 6.08(b) (I) if immediately prior to and after giving effect to such
payment of Indebtedness (and giving pro forma effect to any payment of cash
in
connection with such payment of Indebtedness), Liquidity is not less than
$250,000,000 or (II) if the condition described in clause (I) shall not be
satisfied, 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.
(c)
Each
Borrower will not, and will not permit any Restricted Subsidiary to, enter
into
or be party to, or make any payment under, any Synthetic Purchase
Agreement.
SECTION
6.09. Transactions
with Affiliates. (a)
Each
Borrower will not, nor will it permit any Restricted Subsidiary to, sell, lease
or otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) 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 $15,000,000 may be other than on an arm’s-length basis so long
as the board of directors of FCX has determined the transaction is in the best
interests of the Borrowers, (b) transactions between the Borrowers and/or
Subsidiary Guarantors not involving any other Affiliate and (c) 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), (ii) transfers of Block B
Assets in accordance with Section 6.05(c) and (iii) cash investments
in Unrestricted Subsidiaries and other Affiliates permitted by
Section 6.04(g).
SECTION
6.10. Restrictive
Agreements.
Each
Borrower will not, nor will it permit any Restricted Subsidiary to, directly
or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Borrowers or any Restricted Subsidiary to create, incur or permit
to exist any Lien 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 existing
on the date hereof identified on Schedule 6.10 (but shall apply to any extension
or renewal of, or 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
a
Restricted Subsidiary pending such sale; provided
such
restrictions and conditions apply only to the Restricted Subsidiary that is
to
be sold and such sale is permitted hereunder, and (iii) clause (a) of
the foregoing shall not apply to (i) 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, (ii) restrictions or conditions imposed by any agreement
relating to Indebtedness permitted by Section 6.01(a)(iv) 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 by Section 6.01(a)(xiii), (iii) customary provisions
in leases restricting the assignment thereof, (iv) restrictions imposed by
Sections 7.2.5 and 7.3 of the Participation Agreement and
(v) restrictions in indentures governing Permitted FCX Indebtedness which
do not in any manner restrict the ability of the Borrowers and the Restricted
Subsidiaries to grant Liens on any of their properties or assets to secure
the
Obligations or any extensions, renewals, replacements or refinancings
thereof.
SECTION
6.11. Amendment
of Material Documents and Mirror Notes. (a)
Each
Borrower will not, nor will it permit any Restricted Subsidiary to, amend,
modify or waive any of its rights under (i) its certificate of
incorporation, by-laws or other organizational documents, (ii) any
indenture or agreement governing Material Indebtedness or (iii) any
Infrastructure Document, Additional Infrastructure Financing Document,
PT Kencana Financing Document or Caterpillar Document, in each case in any
manner that could reasonably be expected to be adverse in any significant
respect to the interests or rights of the Lenders.
(b)
FCX
will
not, without the prior consent of the Required Lenders, amend, modify or waive
any of its rights under any Mirror Note if the effect would be to
(i) change the amount of principal, the rate of interest or the manner in
which payments are calculated thereon, (ii) change the dates for the
payment of principal, interest or other amounts thereon or (iii) change or
modify the subordination provisions thereof; provided,
however, that FCX may, without the consent of the Lenders, amend or modify
any
Mirror Note (x) in order to adjust the principal amount, interest rate or
other payment terms thereof (but not the subordination terms) to reflect the
terms of the related Mirror Note Security (as amended from time to time) or
any
security of FCX that replaces, refinances or is exchanged for such Mirror Note
Security (which other security will be deemed a Mirror Note Security for
purposes hereof) or (y) in any other manner not referred to in
clause (i), (ii) or (iii) hereof.
SECTION
6.12. Protection
of Contract Rights.
PTFI
will not terminate, suspend, amend or grant waivers of any provisions of any
of
the Assigned Agreements without the prior written consent of the Required
Lenders; provided,
however,
that
PTFI may amend or waive provisions in any Concentrate Sales Agreement or, in
the
ordinary course of business and so long as no Default or Event of Default shall
have occurred and be continuing hereunder, terminate any Concentrate Sales
Agreement, so long as such amendment, waiver or termination will not materially
adversely affect the business, financial condition or operations of PTFI or
any
rights of the FI Trustee or the Lenders. Upon the request of the Administrative
Agent or the FI Trustee, PTFI will promptly provide the Administrative Agent
or
the FI Trustee, as the case may be, with access to PTFI’s books, records and
offices for the purpose of permitting the Administrative Agent or the FI Trustee
to inspect and review any amendments, waivers or supplements to, or terminations
of, any Concentrate Sales Agreement and make copies thereof. If a Default or
Event of Default shall have occurred and be continuing, upon the request of
the
Administrative Agent or the FI Trustee, PTFI will provide the Administrative
Agent or the FI Trustee, as the case may be, with copies of any such
amendments, waivers, supplements or terminations. PTFI shall take all steps
necessary or advisable to protect its rights (and the rights of the FI Trustee)
under the Assigned Agreements.
SECTION
6.13. Block
B Projects.
Neither
Borrower nor any of its Subsidiaries will permit any Block B Project to utilize
any Block A Operations and Assets unless such Block B Project satisfies the
Block B Conditions.
SECTION
6.14. Fiscal
Year.
Neither
Borrower will change its fiscal year to end on any date other than
December 31.
SECTION
6.15. Covenants
Relating to the RTZ Transactions.
Neither
Borrower will, directly or indirectly enter into any amendment or modification
of (i) the Stock Purchase Agreement or 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 (the Stock Purchase Agreement, the
Participation Agreement and such other approved material agreements being,
collectively, the “RTZ
Documents”)
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 6.15). 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 or (f) resign as the Operator under
the Participation Agreement. Subject to the penultimate sentence of this
Section 6.15, 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.
SECTION
6.16. Specified
Transactions.
Neither
Borrower will (a) enter into any Additional Infrastructure Financing
Document or agreement relating to a PT Kencana Financing or any amendment
or modification thereof or enter into any amendment or modification of any
of
the Infrastructure Financing Documents which could reasonably be expected to
have an adverse effect upon the rights and remedies of the Administrative Agent,
the FI Trustee and the Lenders under the Loan Documents or on the collateral
provided under the FI Security Documents (the “FI
Collateral and Rights”)
or
impair the ability of either Borrower or the Restricted Subsidiaries to perform
all of their respective obligations under the Loan Documents; (b) make, or
permit any Restricted Subsidiary to make, any voluntary repurchase of any
Infrastructure Assets or (c) grant or provide (or permit any Restricted
Subsidiary to grant or provide) any additional security or collateral to secure
any obligations arising under any Infrastructure Financing Documents (other
than
as required under the Infrastructure Financing Documents with respect to
substitution or replacement of existing collateral).
SECTION
6.17. Designation
of Unrestricted Subsidiaries. (a)
The
Borrowers may not designate any Restricted Subsidiary (other than any Immaterial
Subsidiary, any Exploration Subsidiary, PT Kencana, PT Kencana Wisata
and any Person that is (x) the direct parent of any Exploration Subsidiary,
PT Kencana and/or PT Kencana Wisata and (y) a holding company
with no business or operations other than the holding of Equity Interests in
such Exploration Subsidiary, PT Kencana and/or PT Kencana Wisata) as
an Unrestricted Subsidiary and may hereafter designate any Exploration
Subsidiary, PT Kencana, PT Kencana Wisata, any Immaterial Subsidiary
and any other Subsidiary that is not a Restricted Subsidiary as an Unrestricted
Subsidiary under this Agreement (a “Designation”)
only
if:
(i) such
Subsidiary does not own any Equity Interests of any Restricted
Subsidiary;
(ii) no
Event
of Default shall have occurred and be continuing at the time of or after giving
effect to such Designation;
(iii) after
giving effect to such Designation and any related Investment to be made in
such
designated Subsidiary by the Borrowers or any Restricted Subsidiary (which
shall
in any event include the existing Investment in such Subsidiary at the time
it
is designated as an Unrestricted Subsidiary), (A) any such existing
Investment and related Investment would comply with and satisfy the conditions
of Section 6.04 and (B) the Borrowers would be in compliance with each
of the Financial Covenants calculated on a pro forma basis as if such
Designation and Investment 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 the Borrowers pursuant to
Section 5.01(a) or (b); and
(iv) the
Borrowers have delivered to the Administrative Agent (x) written notice of
such Designation and (y) a certificate, dated the effective date of such
Designation, of a Financial Officer stating that no Event of Default has
occurred and is continuing and setting forth reasonably detailed calculations
demonstrating pro forma compliance with the Financial Covenants in accordance
with 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.
(b)
The
Borrower may designate any Unrestricted Subsidiary as a Restricted Subsidiary
under this Agreement (an “RS
Designation”)
only
if:
(i) no
Event
of Default shall have occurred and be continuing at the time of or after giving
effect to such RS Designation, and after giving effect thereto, the Borrowers
would be in compliance with each of the Financial Covenants, calculated on
a pro
forma basis as if such RS Designation 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 the Borrowers
pursuant to Section 5.01(a) or (b); and
(ii) all
Liens
on assets of such Unrestricted Subsidiary and all Indebtedness of such
Unrestricted Subsidiary outstanding immediately following the RS Designation
would, if initially incurred at such time, have been permitted to be incurred
pursuant to Sections 6.01 and 6.02 without reliance on
Section 6.01(a)(ii) or Section 6.02(c) or (h).
Upon
any
such RS Designation with respect to an Unrestricted Subsidiary (i) the
Borrowers 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 such Investment immediately prior to such RS Designation
and (y) the fair market value (as reasonably determined by the Borrowers) of
the
net assets of such Subsidiary at the time of such RS Designation and
(ii) the Borrowers 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
of the Borrowers 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
6.18. Leverage
Ratio.
The
Borrowers will not permit the Leverage Ratio on any date to exceed 3.5 to
1.0.
SECTION
6.19. Interest
Expense Coverage Ratio.
The
Borrowers will not permit the ratio of (a) Consolidated EBITDA to
(b) Consolidated Cash Interest Expense for any period of four consecutive
fiscal quarters to be less than 3.25 to 1.0:
SECTION
6.20. PTFI
Leverage Ratio.
The
Borrowers will not permit the PTFI Leverage Ratio on any date to exceed 2.5
to
1.0.
SECTION
6.21. 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 Security Agent to secure the Obligations pursuant to a pledge
agreement satisfactory to the Security Agent;
(c) 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 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;
(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;
provided,
however,
that
this Section 6.21 shall cease to be applicable at such time, if any, as
PTII merges with and into PTFI.
ARTICLE
VII
Events
of Default
If
any of
the following events (“Events
of Default”)
shall
occur:
(a) 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 or 5.04 (with respect to the existence of either
Borrower) or in Article VI or Section 10.16;
(e) any
Loan
Party shall fail to observe or perform any covenant, condition or agreement
contained in any Loan Document (other than those specified in clause (a),
(b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrowers (which notice will be given at the request
of any Lender);
(f) 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 (with or without notice or lapse of time or both), 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 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 or any Restricted Subsidiary 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 either Borrower or any Restricted Subsidiary 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) either
Borrower or any Restricted Subsidiary 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 either Borrower or any Restricted Subsidiary
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,
(v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the
foregoing;
(i) either
Borrower or any Restricted Subsidiary 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
$10,000,000 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;
(k) an
ERISA
Event shall have occurred that, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability of
either Borrower and its Restricted Subsidiaries in an aggregate amount exceeding
(i) $10,000,000 in any year or (ii) $25,000,000 for all
periods;
(l) any
Lien
purported to be created under any Security Document shall cease to be, or shall
be asserted by any Loan Party not to be, a valid and perfected Lien on any
Collateral, with the priority required by the applicable Security Document,
except (i) as a result of the sale or other disposition of the applicable
Collateral in a transaction permitted under the Loan Documents or (ii) as a
result of the Security Agent’s failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it under any
Security Document;
(m) the
security interest in the Contract of Work granted in the FI Trust Agreement
or
any other security interest granted 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;
(n) any
Guarantee under Article IX of this Agreement or any Subsidiary Guarantee
Agreement shall cease to be, or shall be asserted by any Loan Party not to
be, a
valid and enforceable Guarantee;
(o) any
default or other event shall occur with respect to any of the Infrastructure
Financing Documents, Additional Infrastructure Financing Documents or
PT Kencana Financing Documents which would (with or without the passage of
time or the giving of notice) permit acceleration or require prepayment of
any
of the Indebtedness or Attributable Debt with respect to any Infrastructure
Financing, Additional Infrastructure Financing or PT Kencana Financing, as
the case may be, (other than with respect to a casualty event or condemnation
affecting the related Infrastructure Assets), permit foreclosure upon, or
require PTFI to repurchase, the related Infrastructure Assets, Additional
Infrastructure Assets or PT Kencana Assets, as the case may
be;
(p) 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;
(q)
any
Governmental Authority shall condemn, seize, nationalize, assume the management
of, or appropriate any material portion of the property, assets or revenues
of
either Borrower (either with or without payment of compensation);
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 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, including the
giving of an Allocation Notice, Blockage Notice or Enforcement Notice under
the
FI Trust Agreement and/or the exercise by the Administrative Agent of its right
pursuant to Section 10.16 to remove PTFI as Operator under the Contract of
Work pursuant to the Operator Replacement Agreement; 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 and the Issuing Bank 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 Security Agent for the
Lenders under this Agreement and the other Loan Documents, (c) JPMCB as JAA
Security Agent for the Lenders under this Agreement and the Third Amended and
Restated JAA Fiduciary Transfer, (d) JPMCB as the Syndication Agent for the
Lenders under this Agreement and the other Loan Documents and (e) 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 Third Amended and Restated Surat Kuasa and the Third
Amended and Restated Fiduciary Assignment. Each Lender and the 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 Third
Amended and Restated Surat Kuasa and the Third Amended and Restated Fiduciary
Assignment 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 and the
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.
Each
of
the Lenders serving as the Administrative Agent, the Security Agent, the JAA
Security Agent, the Syndication Agent and the FI Trustee hereunder 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, 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 hereunder.
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) the Administrative Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Administrative Agent shall not 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 as shall
be
necessary under the circumstances as provided in Section 10.02), and
(c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not 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
Administrative Agent or any of its Affiliates in any capacity. The
Administrative 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 10.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall not 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 the Administrative
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 the
Administrative Agent.
Without
limiting the generality of the foregoing, the 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 Lender Security
Documents and the Third Amended and Restated JAA Fiduciary Transfer (as
applicable) and the rights of the secured parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and
the
Lender Security Documents. In addition, each Lender and the Issuing Bank hereby
irrevocably authorizes and directs the Administrative Agent to enter, on behalf
of each of them, into the FI Security Documents Amendments and agrees to be
bound by the terms of the Security Documents. Each Lender and the Issuing Bank
hereby irrevocably authorizes and directs the Security Agent, the JAA Security
Agent and the FI 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,
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.
Subject
to the appointment and acceptance of a successor as provided in this paragraph,
any Agent may resign at any time by notifying the Lenders and the Borrowers.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrowers, to appoint a successor Administrative Agent,
Security Agent, JAA Security Agent or Syndication 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, Security Agent, JAA Security
Agent or Syndication 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, Security Agent, JAA
Security Agent or Syndication Agent, as the case may be, hereunder by a
successor, such successor Administrative Agent, Security Agent, JAA Security
Agent or Syndication 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 10.03 shall continue in effect for
the benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as an Agent.
Each
Lender acknowledges that it has, independently and without reliance upon the
Agents or any other Lender and based on such documents and information as it
has
deemed appropriate, made its own credit analysis and decision to enter into
this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
The
obligations of the Administrative Agent, Security Agent, JAA Security Agent,
the
FI Trustee and the Syndication Agent shall be separate and several and neither
of them shall be responsible or liable for the acts or omissions of the other,
except, to the extent that any such Agent serves in more than one agency
capacity, such Agent shall be responsible for the acts and omissions relating
to
each such agency function.
Without
the prior written consent of the Required Lenders but subject to
Section 10.02(b), the Administrative Agent, the Security Agent and the JAA
Security Agent will not, except as contemplated by the following paragraph,
consent to any modification, supplement or waiver of the FI Intercreditor
Agreement, the Lender Security Documents, the FI Trust Agreement, the Operator
Replacement Agreement or the Third Amended and Restated JAA Fiduciary Transfer
and the FI Trustee will not consent to any modification, supplement or waiver
of
the FI Trust Agreement, the Operator Replacement Agreement, the Third Amended
and Restated Surat Kuasa or the Third Amended and Restated Fiduciary
Assignment.
Notwithstanding
any other provision of this Article VIII, the Administrative Agent will, at
the
request of FCX or PTFI, instruct the FI Trustee, the Security Agent and/or
the
JAA Security Agent, as applicable, to release (or to subordinate such interest)
from the FI Trust Agreement and/or the FCX Pledge Agreements and/or the Lender
Security Agreement and/or the other FI Security Documents, as applicable (and
enter into an amendment to the FI Trust Agreement and/or the FCX Pledge
Agreements and/or the Lender Security Agreement and/or the other FI Security
Documents and execute such other instruments as may be necessary in connection
therewith), any interest of the FI Trustee, the Security Agent and/or the JAA
Security Agent, as applicable, upon receipt by the Administrative Agent of
a
certificate from a Financial Officer of PTFI specifying the asset to be released
and the related transaction and certifying that after giving effect thereto,
no
Default or Event of Default shall occur or be continuing, specific assets (which
may either be released from the Lien of the FI Security Documents or the FCX
Pledge Agreements or excluded from the after-acquired property clauses of the
FI
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 PT Kencana Financing, to the extent requested in a
certificate from a Financial Officer of PTFI, which certificate shall certify
that after giving effect to the release of such Guarantee no Default or Event
of
Default shall occur or be continuing, PT Kencana and/or PT Kencana, as
applicable, shall automatically be released from its Guarantee. 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) 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.
ARTICLE
IX
Guarantee
As
consideration for the Lenders’ obligations to lend to PTFI hereunder, FCX hereby
unconditionally and irrevocably guarantees, as a primary obligor and not merely
as a surety, the due and punctual payment 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 each Loan to PTFI, when and as due, whether
at
maturity, by acceleration, by notice of prepayment or otherwise, (ii) each
payment required to be made by PTFI 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) all other monetary obligations of PTFI to the
Lenders, the Issuing Bank, the Agents and the FI Trustee under this Agreement
and the other Loan Documents, including in respect of fees, costs, expenses
and
indemnities (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) (iv) all amounts owing by
PTFI pursuant to any Permitted Secured Hedge with PTFI, (v) all obligations
owed
from time to time by PTFI to JPMCB or its Affiliates in respect of (A) cash
management services and (B) any Purchasing Card Program, in each case including
obligations in respect of overdrafts, temporary advances, interest and fees,
and
(vi) all other Obligations of PTFI (collectively, the “PTFI
Obligations”).
As
consideration for the Lenders’ obligations to lend to FCX hereunder, PTFI hereby
unconditionally and irrevocably guarantees, as a primary obligor and not merely
as a surety, the due and punctual payment 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 each Loan to FCX when and as due, whether
at
maturity, by acceleration, by notice of prepayment or otherwise, (ii) each
payment required to be made by FCX 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,
including in respect of fees, costs, expenses and indemnities (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), (iii) all other monetary obligations of FCX to the
Lenders, the Issuing Bank, the Agents and the FI Trustee under this Agreement
and the other Loan Documents, (iv) all amounts owing by FCX pursuant to any
Permitted Secured Hedge with FCX, (v) all obligations owed from time to time
by
FCX to JPMCB or its Affiliates in respect of (A) cash management services and
(B) any Purchasing Card Program, in each case including obligations in respect
of overdrafts, temporary advances, interest and fees, and (vi) all other
Obligations of FCX (collectively, the “FCX
Obligations”
and,
together with the PTFI Obligations, the “Guaranteed
Obligations”).
Each
of FCX and PTFI further agrees that the PTFI Obligations or the FCX Obligations,
as the case may be, may be extended or renewed, in whole or in part, without
notice or further assent from it, and that it will remain bound upon its
guarantee notwithstanding any extension or renewal of any such PTFI Obligation
or FCX Obligation, as applicable.
FCX
waives presentment to, demand of payment from and protest to PTFI of any of
the
PTFI Obligations, and PTFI waives presentment to, demand of payment from and
protest to FCX of any of the FCX Obligations, and each Borrower also waives
notice of acceptance of its guarantee and notice of protest for nonpayment.
The
obligations of FCX and PTFI under this Article IX shall not be affected by
(a) the failure of any Lender, any Agent or the FI Trustee to assert
any claim or demand or to enforce any right or remedy against PTFI or FCX,
respectively, under the provisions of this Agreement or otherwise; (b) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Agreement, any guarantee or any other agreement; (c) the release or
non-perfection of any security held by any Lender, any Agent or the FI Trustee
for the Guaranteed Obligations guaranteed by it or any of them or (d) the
failure of any Lender, any Agent or the FI Trustee to exercise any right or
remedy against any other guarantor of the PTFI Obligations or FCX Obligations,
respectively.
Each
of
FCX and PTFI further agree that its guarantee constitutes a guarantee of payment
when due and not of collection, and waives any right to require that any resort
be had by any Lender, any Agent or the FI Trustee to any security held for
payment of the PTFI Obligations or of the FCX Obligations or to any balance
of
any deposit account or credit on the books of such Lender in favor of PTFI
or
FCX, as applicable, or any other Person.
The
obligations of FCX or PTFI under this Article IX shall not be subject to
any reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality
or
unenforceability of the PTFI Obligations or the FCX Obligations, respectively,
or otherwise. Without limiting the generality of the foregoing, the obligations
of FCX or PTFI under this Article IX shall not be discharged or impaired or
otherwise affected by the failure of any Lender, any Agent or the FI Trustee
to
assert any claim or demand or to enforce any remedy under this Agreement, any
guarantee or any other agreement, by any waiver or modification of any thereof,
by any default, failure or delay, wilful or otherwise, in the performance of
the
PTFI Obligations or the FCX Obligations, respectively, or by any other act
or
omission which may or might in any manner or to any extent vary the risk of
FCX
or PTFI, or otherwise operate as a discharge of FCX or PTFI as a matter of
law
or equity.
Each
of
FCX and PTFI further agree that its guarantee shall continue to be effective
or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of principal of or interest on any Guaranteed Obligation guaranteed by it
(including, without limitation, any payment pursuant to this guarantee) is
rescinded or must otherwise be restored by any Lender, any Agent or the FI
Trustee upon the bankruptcy or reorganization of PTFI or FCX, respectively,
or
otherwise.
In
furtherance of the foregoing and not in limitation of any other right which
any
Lender, any Agent or the FI Trustee may have at law or in equity against FCX
or
PTFI by virtue hereof, upon the failure of FCX or PTFI, respectively, to pay
any
of the PTFI Obligations or the FCX Obligations, respectively, when and as the
same shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, each of FCX and PTFI hereby promises to and will,
upon
receipt of written demand by any Lender, any Agent or the FI Trustee, forthwith
pay, or cause to be paid, to the Administrative Agent for distribution to the
Lenders, the Agents or the FI Trustee, as appropriate, in cash the amount of
such unpaid PTFI Obligations or FCX Obligations, as the case may be, and at
such
time as all such PTFI Obligations or FCX Obligations owing to such Lender,
such
Agent, or the FI Trustee as applicable, have been indefeasibly paid in full
and
its Commitment terminated, such Lender shall, in a reasonable manner, assign
the
amount of such PTFI Obligations or FCX Obligations, as applicable, owed to
it
and paid by FCX or PTFI pursuant to this guarantee to FCX or PTFI, such
assignment to be pro tanto
to the
extent to which the PTFI Obligations or FCX Obligations in question were
discharged by FCX of PTFI, as applicable, or make such other disposition thereof
as FCX or PTFI shall direct (all without recourse to such Lender, such Agent
or
the FI Trustee, as applicable, and without any representation or warranty by
such Lender, such Agent or the FI Trustee, as applicable).
Upon
payment by FCX or PTFI of any sums to a Lender, an Agent or the FI Trustee
as
provided above in this Article IX, all rights of FCX against PTFI or of
PTFI against FCX arising as a result thereof by way of right of subrogation
or
otherwise (a) shall in all respects be subordinated and junior in right of
payment to the prior indefeasible payment in full of all the PTFI Obligations
or
FCX Obligations, as applicable, to the Lenders, the Agents and the FI Trustee
and (b) shall not be exercised by FCX or PTFI, as applicable, prior to
indefeasible payment in full of all Loans, the indefeasable reimbursement of
all
LC Disbursements, the termination of all Commitments and the termination or
expiration of all Letters of Credit hereunder. Notwithstanding the foregoing,
PTFI hereby waives all rights of subrogation against FCX arising as a result
of
any payment by PTFI under this Article IX including, without limitation,
all rights to any proceeds from a liquidation of FCX.
To
the
extent that the laws of the Republic of Indonesia are applicable to this Article
IX, PTFI hereby waives any and all rights and privileges accorded by those
laws
to a guarantor, including without limitation the rights and privileges contained
in Articles 1430, 1831, 1833, 1837, and 1847 through 1849 of the Indonesian
Civil Code.
ARTICLE
X
Miscellaneous
SECTION
10.01. 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., 0000
Xxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, Attention of Treasurer (Telecopy
No. (000) 000-0000);
(ii) if
to the
Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency Services
Group, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention of Mr.
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); and
(iii) if
to the
Issuing Bank, to JPMorgan Chase Bank, N.A., Loan and Agency Services Group,
0000
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention of Mr. 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); and
(iv) if
to any
other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
(b)
Notices
and other communications to the Lenders hereunder may be delivered pursuant
to
procedures approved by the Administrative Agent; provided
that the
foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The
Administrative Agent or the Borrowers 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 hereunder 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
10.02. Waivers;
Amendments. (a)
No
failure or delay by any Agent, any Lender, the Issuing Bank or the FI Trustee
in
exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Agents,
the
Lenders, the Issuing Bank and the FI Trustee hereunder and under the other
Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document
or
consent to any departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality
of
the foregoing, the making of a Loan or the issuance, amendment, extension or
renewal of a Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether any Agent, any Lender, the Issuing Bank or the FI Trustee
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 Agents and the Loan
Party or Loan Parties that are parties thereto and, if a party thereto, the
FI
Trustee or the FI Security Agent, 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 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, (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
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, (vi) release either FCX or PTFI from its Guarantee hereunder
or limit its liability in respect of such Guarantee, without the written consent
of each Lender or (vii) release all or substantially all the Collateral from
the
Liens of the Security Documents, without the written consent of each Lender;
provided
further
that no
such agreement shall amend, modify or otherwise affect the rights or duties
of
any Agent, the FI Trustee or the Issuing Bank without the prior written consent
of such Agent, the FI Trustee or the Issuing Bank, as the case may be.
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 Exposure of each Lender not consenting to the amendment
provided for therein shall terminate upon the effectiveness of such amendment
and (ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued
for
its account under this Agreement.
SECTION
10.03. Expenses;
Indemnity; Damage Waiver. (a)
Each
Borrower agrees, jointly and severally, 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 the 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, the Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for any Agent,
the
FI Trustee, the 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, jointly and severally, to indemnify each Agent, each Lender,
the Issuing Bank and 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 the 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, 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 Issuing Bank or the FI Trustee under paragraph (a) or
(b) of this Section, each Lender severally agrees to pay to the applicable
Agent, the Issuing Bank or the FI Trustee, 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 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
Issuing Bank or the FI Trustee 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 Exposures and unused Commitments at the time.
If
any action, suit or proceeding arising from any of the foregoing is brought
against any Lender, any Agent, the Issuing Bank, the FI Trustee or other Person
indemnified or intended to be indemnified pursuant to this Section 10.03,
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 Issuing Bank, the FI
Trustee 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, the 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, the 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
10.04. 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 the Issuing Bank that issues any Letter of Credit),
except that (i) neither Borrower may 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 either Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section. Nothing in this Agreement, expressed or implied, shall be construed
to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit), Participants (to the extent provided
in
paragraph (c) of this Section) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Agents, the Issuing Bank, the FI Trustee
and
the Lenders) any legal or equitable right, remedy or claim under or by reason
of
this Agreement.
(b)
(i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment or LC
Exposure and the Loans at the time owing to it) with the prior consent (such
consent not to be unreasonably withheld, 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 which the assignor Lender would not be entitled to claim as of
that
date) of:
(A)
the
Borrowers; provided
that no
consent of either Borrower shall be required for an assignment to a Lender,
an
Affiliate of a Lender, an Approved Fund or, if an Event of Default under
clause (a), (b), (g) or (h) of Article VII has occurred and is
continuing, any other assignee; and
(B)
the
Administrative Agent; provided
that no
consent of the Administrative Agent shall be required for an assignment of
a
Loan, Commitment or LC Exposure to an assignee that is a Lender with a Loan,
Commitment or LC Exposure immediately prior to giving effect to such assignment.
(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 assignment of the entire remaining amount of the assigning Lender’s
Commitment, the amount of the Commitment 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 $1,000,000 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;
(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;
(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; and
(D)
the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent
an Administrative Questionnaire.
For
purposes of this Section 10.04(b), the term “Approved Fund” has the following
meaning:
“Approved
Fund”
means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by a Lender,
an Affiliate of a Lender or an entity or an Affiliate of an entity that
administers or manages a 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 10.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 10.04 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
Issuing Bank, the FI Trustee 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
Issuing Bank, the FI Trustee 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, the Administrative 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 or the Issuing Bank, sell participations to one or more
banks or other entities (a “Participant”)
in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitment or LC Exposure and the Loans
owing
to it); provided
that
(A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (C) the Borrowers, the Agents, the
Issuing Bank, the FI Trustee 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 10.02(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 10.08 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 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(e) as though it were a Lender.
(d)
Any
Lender may 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
10.05. 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 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 10.03 and Article VIII
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Commitments or the termination of this
Agreement or any provision hereof.
SECTION
10.06. Counterparts;
Integration; Effectiveness. (a)
This
Agreement may be executed in counterparts (and by different parties hereto
on
different counterparts), each of which shall constitute an original, but all
of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to
fees
payable to any Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements
and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof which, when taken together, bear
the signatures of each of the other parties hereto, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature
page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
(b)
All
fees
and interest accruing under the Existing Credit Agreement at any time prior
to
the Effective Date shall accrue at the rates and be payable at the times
specified therein; on and after the Effective Date, fees and interest shall
accrue and be payable in respect of the indebtedness and commitments under
such
agreements as specified in this Agreement, pursuant to which each such agreement
has been amended and restated.
SECTION
10.07. 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
10.08. Right
of Setoff.
If an
Event of Default shall have occurred and be continuing, each Lender 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) at any time held
and
other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of either Borrower against any of and all the obligations
of either Borrower now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured. The rights
of each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION
10.09. 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 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 Issuing
Bank,
any Lender or the FI Trustee 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 10.01. 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
10.10. 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
10.11. 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
10.12. Confidentiality.
Each of
the Agents, the FI Trustee, the Issuing Bank 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 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 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, the 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 Issuing Bank, the FI Trustee 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.
Each
Lender acknowledges that Information furnished to it pursuant to this Agreement
may include material non-public information concerning the Borrowers and their
Related Parties or the Borrowers’ 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
those procedures and applicable law, including Federal and state securities
laws.
All
information, including requests for waivers and amendments, furnished by the
Borrowers or any 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 their Related Parties or the
Borrowers’ securities. Accordingly, each Lender represents to the Borrowers and
the Agents 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
10.13. Interest
Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts
which are treated as interest on such Loan under applicable law (collectively
the “Charges”),
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 in accordance with applicable law, the rate of interest
payable in respect of such Loan 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
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 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
10.14. Judgment
Currency.
The
specification of payment in dollars and in New York City, New York, with respect
to amounts payable to any Lender (or permitted assignee or Participant), any
Agent or the FI Trustee hereunder and under the other Loan Documents is of
the
essence, and dollars shall be the currency of account in all events. The payment
obligations of 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 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 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
10.15. 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
10.16. RTZ
Transactions.
PTFI
hereby (i) appoints the Administrative Agent to be the Operator Selection
Representative for all purposes of the FI Trust Agreement, the Operator
Replacement Agreement and the Third Amended and Restated Surat Kuasa and
(ii) irrevocably and unconditionally agrees that upon the occurrence of an
Event of Default, the Administrative Agent may, in addition to any other remedy
available hereunder or under any other Loan Document, 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 also irrevocably and unconditionally agrees that
the Administrative Agent, acting as the Operator Selection Representative under
the FI Trust Agreement, the Operator Replacement Agreement and the Third Amended
and Restated 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 further agrees 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 also agrees 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 Agents and the Lenders under
the
Loan Documents and applicable law. Each of the Agents, the Lenders, PTFI and
FCX
acknowledge that the FI Trust Agreement will not terminate prior to termination
of the Participation Agreement.
SECTION
10.17. 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 each Borrower in accordance with the Patriot
Act.
Each
Borrower agrees to provide the Lenders, upon request, with all documentation
and
other information required from time to time to be obtained by the Lenders
pursuant to applicable “know your customer” and anti-money laundering rules and
regulations, including the Patriot
Act.
SECTION
10.18. 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.
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
/s/
Xxxxxxxx X.
Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title:
Senior
Vice,
President, Chief
Financial Officer and Treasurer
FREEPORT
INDONESIA,
by
/s/
Xxxxxx X. Xxxxx
Name: Xxxxxx
X. Xxxxx
Title: Treasurer
JPMORGAN CHASE BANK, N.A.,
individually
and as
Administrative Agent,
Issuing
Bank,
Security Agent, JAA Security
Agent
and Syndication
Agent,
by
/s/
Xxxxx
X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Managing Director
U.S.
BANK
NATIONAL ASSOCIATION,
as
FI
Trustee,
by
/s/ Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X.
Xxxxxxx
Title:
Vice
President
LENDER SIGNATURE PAGE TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
Citibank,
N.A.
by
/s/ Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X.
Xxxxxxx
Title:
Vice
President
For
any Lender
requiring a second signature
line:
by:
__________________________
Name:
Title:
LENDER SIGNATURE PAGE TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
Xxxxxxx
Xxxxx
Capital Corporation
by:
/s/
Xxx
Xxxxxxx
Name:
Xxx
Xxxxxxx
Title:
Vice
President
For
any Lender
requiring a second signature
line:
by:
_____________________
Name:
Title:
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
The
Bank of Nova
Scotia
by:
/s/
Xxxx
Xxxxxxx
Name:
Xxxx
Xxxxxxx
Title:
Managing
Director
For
any Lender
requiring a second signature
line:
by:
_____________________
Name:
Title:
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
HSBC
Bank USA,
N.A.
by:
/s/
Richmond X. Xxxx
Name:
Richmond
X. Xxxx
Title:
First
Vice President
For
any Lender
requiring a second signature
line:
by:
_____________________
Name:
Title:
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
Deutsche
Bank
Trust Company Americas
by:
/s/
Xxxxx XxXxxxx
Name:
Xxxxx
XxXxxxx
Title:
Director
For
any Lender
requiring a second signature
line:
by:
/s/
Xxxxxx Xxxxxxxx
Name:
Xxxxxx
Xxxxxxxx
Title:
Vice
President
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
PT.
Bank Negara
Indonesia (Persero) Tbk
by:
/s/
Utjut Xxxxx Xxxxxx
Name:
Utjut
Xxxxx Xxxxxx
Title:
General
Manager
For
any Lender
requiring a second signature
line:
by:
_____________________
Name:
Title:
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
Xxxxxx
Xxxxxxx
Bank
by:
/s/
Jaap
L. Tonckens
Name:
Jaap
L.
Tonckens
Title:
Authorized Signatory
For
any Lender
requiring a second signature
line:
by:
_____________________
Name:
Title:
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
Sumitomo
Mitsui
Banking Corporation
by:
/s/
Xxxxx X. Xxxx
Name:
Xxxxx
X.
Xxxx
Title:
Senior
Vice President
For
any Lender
requiring a second signature
line:
by:
_____________________
Name:
Title:
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
UBS
Loan Finance
LLC
by:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx
X. Xxxxxx
Title:
Director
Banking
Products
Services,
US
For
any Lender
requiring a second signature
line:
by:
/s/
Xxxx
X. Xxxx
Name:
Xxxx
X.
Xxxx
Title:
Associate Director
Banking
Products
Services,
US
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
PT.
Bank Rakyat
Indonesia (Persero) tbk.
New
York Agency
by:
/s/
Nandi H. Hamaki
Name:
Nandi
H.Hamaki
Title:
General
Manager
For
any Lender
requiring a second signature
line:
by:
/s/
Bambang Harudi
Name:
Bambang
Harudi
Title:
Operations Manager
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
Capital
One,
National Association
by:
/s/
Xxxxxxxxx X. Xxx
Name:
Xxxxxxxxx
X. Xxx
Title:
Vice
President
For
any Lender
requiring a second signature
line:
by:
_____________________
Name:
Title:
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
Natexis
Banques
Populaires
by:
/s/
Xxxxx Xxxxx
Name:
Xxxxx
Xxxxx
Title:
Vice
President
For
any Lender
requiring a second signature
line:
by:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
Societe
Generale
by:
/s/
Xxxxx XxXxxxxx
Name:
Xxxxx
XxXxxxxx
Title:
Vice
President
For
any Lender
requiring a second signature
line:
by:
_____________________
Name:
Title:
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
State
Bank of
India. New York
by:
/s/
Xxxxxx Xxxxxxx
Name:
Xxxxxx
Xxxxxxx
Title:
Vice
President and Head (CR)
For
any Lender
requiring a second signature
line:
by:
_____________________
Name:
Title:
LENDER
SIGNATURE PAGE
TO
FREEPORT-MCMORAN
COPPER &
GOLD
INC./PT FREEPORT
INDONESIA
AMENDED
AND RESTATED
CREDIT
AGREEMENT
ICICI
Bank
Limited
by:
/s/
Marrish Chouvoin
Name: Marrish
Chouvoin
Title: Head-Corporate
& Institutional Banking
For
any Lender
requiring a second signature
line:
by:
_____________________
Name:
Title:
Schedule
1.01A--Disclosed Matters
Schedule
1.01B--Existing Letters of Credit
Schedule
1.01C
Description
of Infrastructure Financings and
Intrastructure
Financing Documents
Schedule
2.01--Commitments
Schedule
3.07
Significant
Agreements and Commitments with
Governmental
Authorities
Schedule
3.12--Subsidiaries
Schedule
3.13--Insurance
Schedule
3.16--Assigned Agreements
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
6.04--Existing Investments
Schedule
6.10--Existing Restrictions
Exhibit
A--Form of Assignment and Assumption
Exhibit
B--Form of Perfection Certificate
