Exhibit 4.7
FTX/FMPO
AMENDED AND RESTATED
CREDIT AGREEMENT
Originally Dated as of July 17, 1995
Amended and Restated as of December 20, 1996
between
FM Properties Operating Co.
and
Freeport-McMoRan Inc.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
SECTION 1.01. Definitions.................................. 4
ARTICLE II THE CREDITS
SECTION 2.01. Loans........................................ 8
SECTION 2.02. Funding of Loans............................. 9
SECTION 2.03. Notes........................................ 9
SECTION 2.04. Interest Rates............................... 9
SECTION 2.05. Mandatory Prepayment......................... 10
SECTION 2.06. Computation of Interest...................... 10
ARTICLE III COVENANTS
SECTION 3.01. Conduct of Business.......................... 11
SECTION 3.02. Indebtedness................................. 11
SECTION 3.03. Restricted Payments.......................... 11
SECTION 3.04. Sales of Assets.............................. 11
SECTION 3.05. Transactions with Affiliates................. 11
ARTICLE IV MISCELLANEOUS
SECTION 4.01. Other Agreements............................. 12
SECTION 4.02. Notices...................................... 12
SECTION 4.03. No Waivers................................... 13
SECTION 4.04. Amendments and Waivers....................... 13
SECTION 4.05. Successors and Assigns....................... 13
SECTION 4.06. Specific Performance......................... 13
SECTION 4.07. Governing Law................................ 13
SECTION 4.08. Counterparts; Integration.................... 14
Exhibit A -- Note
AMENDED AND RESTATED
CREDIT AGREEMENT
AMENDMENT AND RESTATEMENT dated as of December ___,
1996 (this "Restatement"), to the FTX/FMPO Credit Agreement
dated as of July 17, 1995 (the "Existing Credit Agreement";
the Existing Credit Agreement, as amended and restated by
this Restatement, being "this Agreement"), between FM
Properties Operating Co., and Freeport-McMoRan Inc.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as
used herein, have the following meanings:
"Affiliate" means (i) any Person that directly, or
indirectly through one or more intermediaries, controls the
Borrower (a "Controlling Person") or (ii) any Person (other
than the Borrower or a Subsidiary of the Borrower) that is
controlled by or is under common control with a Controlling
Person. As used herein, the term "control" means
possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities,
by contract, or otherwise.
"Asset Disposition" means, with respect to any
Person, any sale, transfer, conveyance, lease or other
disposition (including, without limitation, by way of
merger, consolidation, or sale-leaseback) by such Person or
any of its Subsidiaries to any Person (other than (i) to
such Person or a Subsidiary of such Person, (ii) in the
ordinary course of business, or (iii) of inventory) of any
assets of such Person or any of its Subsidiaries (including
any shares of capital stock of such Person's Subsidiaries).
"Borrower" means FM Properties Operating Co., a
Delaware partnership, and its successors.
"Business Day" means any day except a Saturday,
Sunday, or other day on which commercial banks in New York
City are authorized by law to close.
"Credit Agreement" means the Credit Agreement, dated
as of June 30, 1995, among the Borrower, FTX, The Chase
Manhattan Bank, as administrative agent and as documentation
agent, and the banks party thereto, as amended and/or
restated and in effect from time to time.
"FTX" means Freeport-McMoRan Inc., a Delaware
corporation, and its successors.
"Guarantee" means, with respect to any Person, any
obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing
any Indebtedness or obligation of any other Person (the
"primary obligor") in any manner, whether directly or
indirectly, and including, without limitation, any
obligation of such Person, direct or indirect, (i) to
purchase (or advance or supply funds for the purchase of)
any security for the payment of such Indebtedness or
obligation, (ii) to purchase property, securities, or
services for the purpose of assuring the owner of such
Indebtedness or obligation of the payment of such
Indebtedness or obligation, or (iii) to maintain working
capital, equity capital, or any other financial statement
condition of the primary obligor, so as to enable the
primary obligor to pay such Indebtedness or obligation;
provided, however, that the term "Guarantee" shall not
include any endorsement for collection or deposit in the
ordinary course of business.
"Indebtedness" of any Person means, without
duplication, (a) all obligations of such Person for borrowed
money or with respect to deposits or advances of any kind
(excluding deposits or advances in respect of the purchase
price of property or services to be delivered or performed
within 180 days of receipt of such deposit or advance, but
not excluding such deposits or advances in respect of which
such property or services have in fact not been delivered or
performed within such period), (b) all obligations of such
Person evidenced by bonds, debentures, notes, or similar
instruments, (c) all obligations of such Person under
conditional sale or other title retention agreements
relating to property or assets purchased by such Person (but
in no event including operating leases), (d) all obligations
of such Person issued or assumed as the deferred (for 180
days or more) purchase price of property or services, (e)
all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not
the obligations secured thereby have been assumed, (f) all
Guarantees by such Person of Indebtedness of others, (g) all
capitalized lease obligations of such Person, (h) the
undischarged balance of any production payment, and (i) all
obligations of such Person as an account party in respect of
letters of credit and bankers' acceptances (other than
performance letters of credit or letters of credit that
back-up payment obligations in respect of trade obligations
that do not constitute Indebtedness); provided that
Indebtedness shall not include trade accounts payable, not
incurred in respect of borrowed money or deferred
compensation, that are incurred in the ordinary course of
business and are not overdue or, if overdue, are being
contested in good faith by appropriate proceedings. The
Indebtedness of the Borrower, any Subsidiary or any Person
shall include the Indebtedness of any partnership in which
the Borrower, such Subsidiary or such Person is a general
partner, respectively.
"Intercreditor Agreement" means the Intercreditor
Agreement among FTX, The Chase Manhattan Bank, as agent for
the FM Lenders, and Hibernia National Bank, as agent for the
Pel-Xxx Xxxxx, in the form of Exhibit I to the Credit
Agreement, as amended and/or restated and in effect from
time to time.
"Lien" means, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge,
or security interest in or on such asset, (b) the interest
of a vendor or a lessor under any conditional sale
agreement, capital lease, or title retention agreement
relating to such asset, (c) in the case of securities, any
purchase option, call, or similar right of a third party
with respect to such securities, and (d) other encumbrances
of any kind, including, without limitation, production
payment obligations.
"Loan" has the meaning set forth in Section 2.01.
"Net Proceeds" means, with respect to any Asset
Disposition, (i) the gross fair market value of the
consideration or other amounts payable to or receivable by
the Borrower and any of its Subsidiaries from or in respect
of such Asset Disposition, less (ii) the amount, if any, of
all taxes (but including income taxes only to the extent the
Borrower reasonably estimates that such income taxes will be
paid on the date of the next income tax filing by the
partners of the Borrower) and reasonable and customary fees,
commissions, costs, and other expenses that are incurred in
connection with such Asset Disposition and are payable by
the Borrower or the Subsidiary of the Borrower affected by
such Asset Disposition, but only to the extent not already
deducted in arriving at the amount referred to in clause
(i).
"Note" means a promissory note of the Borrower,
substantially in the form of Exhibit A hereto, evidencing
the obligation of the Borrower to repay the Loans.
"Partnership Agreement" means the Amended and
Restated Agreement of General Partnership dated as of
June 11, 1992 among the Company, FTX and FMPO Sub Inc., as
amended and/or restated and in effect from time to time.
"Prime Rate" means the rate of interest per annum
announced by the Administrative Agent from time to time as
its prime rate in effect at its principal office in the City
of New York.
"Restricted Payment" means (i) any distributions to
any holder of partnership interests of the Borrower, (ii)
any payment on account of the purchase, redemption, or
acquisition of (A) any partnership interests of the Borrower
or shares of capital stock of the Company or (B) any option,
warrant, or other right to acquire partnership interests of
the Borrower or shares of capital stock of the Company,
(iii) any prepayment, redemption, repurchase, or other
acquisition or retirement for value prior to scheduled
maturity of (A) any Indebtedness of the Borrower ranked pari
passu or subordinate in right of payment to the Loans and
having a maturity date subsequent to the maturity of the
Loans or (B) any Indebtedness of the Company (which shall
not include any Indebtedness of the Borrower or any
Subsidiary of the Borrower) or (iv) any investment in, loan,
advance to, Guarantee on behalf of, directly or indirectly,
or other transfer of assets to (A) any Affiliate of the
Borrower or (B) any holder of 5% or more of any class of
capital stock of the Company (including any Affiliates
thereof).
"Senior Lenders" means, collectively, the Pel-Tex
Lenders, the Agents, and the Banks.
"Subordination Terms" means the form of
subordination terms set forth in Exhibit E to the Credit
Agreement, as amended and/or restated and in effect from
time to time.
"Subsidiary" means, with respect to any Person, any
corporation at least a majority of whose securities having
ordinary voting power for the election of directors (other
than securities having such power only by reason of the
happening of a contingency) are at the time owned by such
Person and/or one or more other Subsidiaries of such Person
and any partnership (other than joint ventures for which the
intention under the applicable agreements, including
operating agreements, if any, is that such joint ventures be
partnerships solely for purposes of the Code) in which such
Person or a Subsidiary of such Person is a general partner.
"Termination Date" means the earliest of (i)
February 28, 1998, (ii) the date of a Change in Control and
(iii) the date of any acceleration of the maturity or
repayment in full of the Senior Obligations, or, if any such
day is not a Business Day, the next succeeding Business Day.
Capitalized terms used but not defined herein shall
have the respective meanings set forth in the Credit
Agreement, the Intercreditor Agreement, or the Subordination
Terms.
ARTICLE II
THE CREDITS
SECTION 2.01. Loans. FTX agrees, on the terms and
conditions set forth in this Agreement, to make loans
("Loans") to the Borrower from time to time prior to the
Termination Date in such amounts, with such stated
maturities, or payable on demand, and with such interest
periods if, as, and when FTX determines in its sole
discretion, subject to the provisions of the Credit
Agreement. These Loans (except the FTX Loan) are
subordinated to the Senior Debt in accordance with the
Subordination Terms, which are incorporated by reference
herein. The Borrower agrees, on the terms and conditions
set forth in this Agreement, to borrow such Loans from FTX
if, as, and when FTX so determines, but shall have no right
to require FTX to make any such Loans. The principal amount
of each Loan shall be due and payable as determined by FTX
at the time the Loan is made, and may be prepaid at any
time, subject in each case to the Credit Agreement and,
except as to the FTX Loan, the Subordination Terms. The FTX
Loan ranks on a pari passu basis in right of payment with
all other Indebtedness of the Borrower, including the Senior
Debt.
SECTION 2.02. Funding of Loans. On the date of
each Loan, FTX shall make available such Loan, in federal or
other funds immediately available, to the Borrower at its
address specified pursuant to Section 4.02.
SECTION 2.03. Notes. (a) The Loans shall be
evidenced by a single Note payable to the order of FTX in an
amount equal to the aggregate unpaid principal amount of
such Loans. The Note shall be substantially in the form of
Exhibit A hereto and shall attach the Subordination Terms
(which Subordination Terms shall not, however, be applicable
to the FTX Loan).
(b) FTX shall record the date, amount and maturity
of each Loan made by it and the date and amount of each
payment of principal made by the Borrower with respect
thereto, provided that the failure of FTX to make any such
recordation shall not affect the obligations of the Borrower
hereunder or under the Note. FTX is hereby irrevocably
authorized by the Borrower to attach to and make a part of
its Note a continuation of any such schedule as and when
required.
SECTION 2.04. Interest Rates. Each Loan with a
stated maturity shall bear interest on the outstanding
principal amount thereof for each day from the date such
Loan is made until its stated maturity, at a rate per annum
to be agreed upon between FTX and the Borrower at the time
of the making of such Loan, payable, subject to the Credit
Agreement and, except as to the FTX Loan, the Subordination
Terms, quarterly in arrears on the 5th day of each March,
June, September, and December of each year (or at maturity
of such Loan, if earlier). Each Loan payable on demand
shall bear interest, payable on demand, subject to the
Credit Agreement, and, except as to the FTX Loan, the
Subordination Terms, on the outstanding principal amount
thereof for each day from the date such Loan is made until
paid in full at a rate per annum to be agreed upon between
FTX and the Borrower at the time of the making of such Loan,
compounded quarterly on the 5th day of each March, June,
September, and December of each year. Any overdue principal
of or interest on any Loan (including any principal not paid
at its stated maturity or on demand and any interest not
timely paid, whether due to any provision of the Credit
Agreement, or the Subordination Terms, or otherwise) shall
bear interest, payable, subject to the Credit Agreement and,
except as to the FTX Loan, the Subordination Terms, on
demand for each day until paid at 2% over the rate per annum
agreed upon between FTX and the Borrower as applicable to
such Loan at the time of the making of such Loan, compounded
quarterly on the 5th day of each March, June, September, and
December of each year.
SECTION 2.05. Mandatory Prepayment. On the
Termination Date, any Loans outstanding (together with
accrued interest thereon) shall be due and payable, subject
to the Credit Agreement and, except as to the FTX Loan, the
Subordination Terms.
SECTION 2.06. Computation of Interest. Interest
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 paid for
the actual number of days elapsed (including the first day
but excluding the last day). All other interest shall be
computed as agreed upon by FTX and the Borrower at the time
of the making of each Loan.
ARTICLE III
COVENANTS
Subject to the last paragraph of this Article, the
Borrower agrees that, upon and after a Change in Control,
then, until all Loans and all other amounts payable
hereunder have been paid in full, unless FTX otherwise
agrees:
SECTION 3.01. Conduct of Business. The Borrower
will continue, and will cause each of its Subsidiaries to
continue, to engage in business of the same general type as
conducted by the Borrower and its Subsidiaries on such date,
and will preserve, renew, and keep in full force and effect,
and will cause each of its Subsidiaries to preserve, renew,
and keep in full force and effect their respective
partnership or corporate existence and their respective
rights, privileges, and franchises necessary or desirable in
its normal conduct of business as so conducted. The
Borrower will not enter into any transactions out of the
normal course of its business, except as expressly permitted
by Sections 3.02 and 3.04.
SECTION 3.02. Indebtedness. The Borrower will not,
and shall not permit any of its Subsidiaries to, incur any
Indebtedness, except for (i) any Indebtedness the proceeds
of which are immediately applied to the payment of any
Senior Debt or any Loans; and (ii) any Loans; provided that
in the event that FTX shall fail to make any payment
required under its guarantees of the Senior Debt within five
Business Days after demand therefor, then the foregoing
covenants of this Section 3.02 shall not apply and the
Borrower or any of its Subsidiaries may incur any
Indebtedness that is non-recourse to FTX on such
non-recourse terms that are satisfactory to FTX, acting
reasonably (such non-recourse terms to be deemed
satisfactory if FTX shall not have informed the Borrower
within five Business Days of actual receipt thereof whether
such terms are satisfactory).
SECTION 3.03. Restricted Payments. Neither the
Borrower nor any of its Subsidiaries will declare or make
any Restricted Payment.
SECTION 3.04. Sales of Assets. The Borrower will
not make, and will not permit any of its Subsidiaries to
make, any Asset Disposition unless the Net Proceeds of such
Asset Disposition are applied to the payment of Senior Debt
or Loans immediately upon receipt thereof.
SECTION 3.05. Transactions with Affiliates. The
Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, pay any funds to or
for the account of, make any investment (whether by
acquisition of stock or indebtedness, by loan, advance,
transfer of property, Guarantee, or other agreement to pay,
purchase, or service, directly or indirectly, any
Indebtedness, or otherwise) in, lease, sell, transfer, or
otherwise dispose of any assets, tangible or intangible, to,
or participate in, or effect any transaction in connection
with any joint enterprise or other joint arrangement, or
engage in any other transaction with, any Affiliate.
Notwithstanding anything in this Agreement to the
contrary, so long as any Bank shall have any Commitment
under the Credit Agreement or any Senior Debt is
outstanding, nothing contained in this Agreement, including
Sections 3.01, 3.02, 3.03, 3.04, and 3.05, shall prohibit,
interfere with, or be deemed breached by any exercise of
rights or remedies by, or collection efforts of, the Senior
Lenders or any action taken by the Borrower with the
agreement of the Senior Lenders in connection therewith.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Other Agreements. The parties
acknowledge and agree that this Agreement is subject to the
terms of the Credit Agreement, the Subordination Terms
(except that the Subordination Terms do not apply to the FTX
Loan), and the Intercreditor Agreement.
SECTION 4.02. Notices. All notices, requests, and
other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile transmission,
or similar writing) and shall be given to such party at its
address, telecopier number, or telex number set forth on the
signature pages hereof. Each such notice, request, or other
communication shall be effective, (i) if given by telex,
when such telex is transmitted to the telex number specified
in this Section and the appropriate answerback is received
or, (ii) if given by any other means, when delivered at the
address or received at the telecopier number specified in
this Section.
SECTION 4.03. No Waivers. No failure or delay by
the parties in exercising any right, power, or privilege
hereunder or under the Note shall operate as a waiver
thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. The
rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 4.04. Amendments and Waivers. Subject to
the Credit Agreement, any provision of this Agreement or the
Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the
Borrower and FTX and with the consent of the Required Banks
and the Pel-Tex Lenders.
SECTION 4.05. Successors and Assigns. The
provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors. The parties may not assign or otherwise
transfer any of their rights under this Agreement.
SECTION 4.06. Specific Performance. The parties
hereto agree that FTX would be irreparably damaged if for
any reason the Borrower failed to perform its obligations
under Sections 3.01, 3.02, 3.03, 3.04, and 3.05 of this
Agreement and that FTX would not have an adequate remedy at
law for money damages in such event. Accordingly, FTX shall
be entitled to specific performance and injunctive and other
equitable relief to enforce the performance of such
provisions of this Agreement by the Borrower. This
provision is without prejudice to any other rights that FTX
may have against the Borrower for any failure to perform its
obligations under this Agreement. Notwithstanding the
foregoing, the parties agree that FTX shall not be entitled
to and may not exercise any specific performance,
injunctive, or other equitable relief that would prohibit or
interfere with any exercise of rights or remedies by, or
collection efforts of, the Senior Lenders or any action
taken by the Borrower with the agreement of the Senior
Lenders in connection therewith.
SECTION 4.07. Governing Law. This Agreement and
each Note shall be governed by and construed in accordance
with the laws of the State of New York.
SECTION 4.08. Counterparts; Integration. This
Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersedes
any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof. There being
no Loans outstanding under the Credit and Guarantee
Agreement dated as of June 11, 1992 among the Borrower, FM
Properties Inc., and Freeport-McMoRan Inc., such agreement
is hereby terminated.
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.
FM PROPERTIES OPERATING CO.,
by FREEPORT-McMoRan INC.,
its Managing General Partner
By: ____________________________
Name: X. Xxxxxx Xxxxxx
Title: Treasurer
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxx
Treasurer
Telex: 0000000000
Telephone: 000-000-0000
Telecopy: 000-000-0000
FREEPORT-McMoRan INC.
By: ____________________________
Name: X. Xxxxxx Xxxxxx
Title: Treasurer
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxx
Treasurer
Telex: 0000000000
Telephone: 000-000-0000
Telecopy: 000-000-0000
EXHIBIT A
NOTE
New York, New York
July 17, 1995
For value received, FM Properties Operating Co., a
Delaware partnership (the "Partnership"), promises to pay to
the order of Freeport-McMoRan Inc. ("FTX") the unpaid
principal amount of each Loan made by FTX to the Borrower
pursuant to the FTX/FMPO Credit Agreement referred to below
on the dates provided for in the FTX/FMPO Credit Agreement.
The Partnership promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the
rate or rates provided for in the FTX/FMPO Credit Agreement,
subject to the FM Credit Agreement and, unless the Loan is
the FTX Loan, the Subordination Terms attached hereto. All
such payments of principal and interest shall be made in
lawful money of the United States in Federal or other
immediately available funds at the office of FTX.
All Loans made by FTX, the respective maturities
thereof, and all repayments of the principal thereof shall
be recorded by FTX on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part
hereof; provided that the failure of FTX to make any such
recordation shall not affect the obligations of the Borrower
and FM Properties Inc. hereunder or under the FTX/FMPO
Credit Agreement.
This note is the Note referred to in the FTX/FMPO
Credit Agreement dated as of July 17, 1995, between the
Partnership and FTX (as amended and/or restated and in
effect from time to time, the "FTX/FMPO Credit Agreement").
This Note is secured by the Deed of Trust, Security
Agreement and Financing Statement, dated June 11, 1992, as
modified by the First Modification and Ratification of Deed
of Trust, Assignment, Security Agreement and Financing
Statement, dated July 17, 1995, and as further amended,
modified and/or restated and in effect from time to time.
Terms defined in the FTX/FMPO Credit Agreement are used
herein with the same meanings. Reference is made to the
FTX/FMPO Credit Agreement for provisions for the prepayment
hereof.
FM PROPERTIES OPERATING CO.,
by FREEPORT-McMoRan INC.,
its Managing General Partner
By:____________________________
Name: X. Xxxxxx Xxxxxx
Title: Treasurer
ACKNOWLEDGED AND AGREED
FREEPORT-McMoRan INC.
By: _____________________
Name: X. Xxxxxx Xxxxxx
Title: Treasurer
LOANS AND PAYMENTS OF PRINCIPAL
_________________________________________________________________
Interest Amount
Amount Rate of Maturity Notation
Date of (basis) Principal Date Made By
Loan Repaid
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