CONFORMED COPY AMENDMENT dated as of March 7, 1997 (this "Amendment") to the Credit Agreement dated as of June 30, 1995 (as heretofore amended, the "Credit Agreement"), among PT FREEPORT INDONESIA COMPANY, a limited liability company organized under...
Exhibit 4.16
CONFORMED COPY
AMENDMENT dated as of March 7, 1997
(this "Amendment") to the Credit Agreement
dated as of June 30, 1995 (as heretofore
amended, the "Credit Agreement"), among PT
FREEPORT INDONESIA COMPANY, a limited
liability company organized under the laws of
the Republic of Indonesia and also
domesticated in Delaware ("FI"), FREEPORT-
MCMORAN COPPER & GOLD INC., a Delaware
corporation ("FCX"), the undersigned
financial institutions (collectively, the
"Banks"), FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, a national banking association,
as trustee under the FI Trust Agreement (in
such capacity, the "FI Trustee"), THE CHASE
MANHATTAN BANK (formerly Chemical Bank), a
New York banking corporation ("Chase"), as
administrative agent for the Banks (in such
capacity, the "Administrative Agent"), as
security agent for the Banks (in such
capacity, the "Security Agent") under the
Bank Security Documents (as defined in the
Credit Agreement) and as security agent for
the Banks and RTZ-IIL (in such capacity, the
"JAA Security Agent") under the JAA Fiduciary
Transfer (as defined in the Credit Agreement)
and the JAA Fiduciary Power (as defined in
the Credit Agreement), and THE CHASE
MANHATTAN BANK (as successor to the Chase
Manhattan Bank (National Association)), as
documentary agent for the Banks (in such
capacity the "Documentary Agent"; the
Administrative Agent, the Security Agent, the
JAA Security Agent and the Documentary Agent
being collectively referred to herein as the
"Agents"). Capitalized terms used herein and
not defined herein shall have the meanings
given such terms in the Credit Agreement.
PT Nusamba Mineral Industri ("PTMI"), an
Indonesian limited liability company and a special purpose
subsidiary owned 99% by PT Nusantara Ampera Bakti ("PT
Nusamba") and 1% by PT Mapindo Parama ("PTMP", and together
with PT Nusamba, the "PTMI Shareholders"), proposes to
acquire for an aggregate purchase price not to exceed
$312 million approximately 51% of the capital stock of PT
Indocopper Investama Corporation ("PTII") that is currently
owned or controlled by PT Bakrie & Brothers ("PTBB") and PT
Bakrie Investindo ("PTBI", and together with PTBB, the
"Bakrie Group"). PTII in turn owns 9.36% of the capital
stock of FI.
In conjunction with the acquisition, PTMI will
finance (a) up to $256,000,000 of the purchase price and
financing fees with the proceeds of a senior secured term
loan facility (the "PTMI Facility") and (b) the remainder of
such purchase in the amount of $61,780,000 through a
combination of (i) a common equity contribution by the PTMI
shareholders to PTMI and (ii) the issuance by PTMI of
subordinated indebtedness to the PTMI shareholders in a
principal amount not to exceed 50% of $61,780,000.
The PTMI Facility will be structured as a five-
year term loan, with full recourse to FCX through a Put and
Guaranty Agreement (the "Put Agreement"). FCX will also
loan to PTMI (on a subordinated basis) such amounts as may
be necessary to cover any differences between the interest
payments due on the PTMI Facility and the dividends received
by PTMI in connection with its ownership interest in PT
Indocopper Investama Corporation (the "Interest Shortfall
Loans"). The PTMI Facility will be secured by a first
priority pledge of the PTII shares held by PTMI (the
"Pledged PTII Shares"), a pledge of all the capital stock of
PTMI (the "Pledged Borrower Shares") and a first priority
security interest in a dividend reserve account to be
established for the deposit of all dividends attributable to
PTMI's indirect interest in FI. FCX also will have a second
priority lien on the Pledged PTII Shares and on the Pledged
Borrower Shares to secure any amounts advanced by FCX to pay
principal or interest on the PTMI Facility. Under the Put
Agreement, FCX will be obligated to purchase the Pledged
PTII Shares, the Pledged Borrower Shares, or the interests
of the lenders under the PTMI Facility under certain
conditions for a purchase price equal to the aggregate
amount of the outstanding principal, interest and other
amounts then owed by PTMI in respect of the PTMI Facility.
Pursuant to the terms of the Credit Agreement,
FCX's obligations under the Put Agreement would constitute a
Guarantee of Debt of PTMI and would therefore count against
the Borrowing Base. Moreover, FCX is limited by
Section 5.2(l) in its ability to make a Guarantee on behalf
of and/or loans to a Third Party. FCX and FI have requested
that the Banks agree to amend the Credit Agreement in order
to, among other things, modify the Borrowing Base
determination and modify Section 5.2(l) to permit FCX to
enter into and perform its obligations under the Put
Agreement and to make the Interest Shortfall Loans; the
Banks have advised FCX that they are willing to do so, on
the terms and subject to the conditions hereinafter set
forth.
Accordingly, FCX, FI, the FI Trustee, the Banks
and the Agents agree as follows:
SECTION 1. Amendments. Effective as of the
Effective Date, the Credit Agreement is hereby amended as
follows:
(a) Section 1.1 of the Credit Agreement is hereby
amended by adding the following defined terms in the
appropriate alphabetical order:
(i) "Interest Shortfall Loans" means the
loans made by FCX to PTMI (on a subordinated
basis) to cover any differences between the
interest payments made on the PTMI Facility and
the dividends received by PTMI in connection with
its ownership interest in PT Indocopper Investama
Corporation.
(ii) "Obligations Amount" means the price at
which FCX will be obligated to purchase the
Pledged PTII Shares and/or the Pledged Borrower
Shares or the interest of the lenders under the
PTMI Facility under the terms of the Put
Agreement, which will be an amount equal to the
aggregate amount of the outstanding principal,
interest and other amounts then owed by PTMI under
the PTMI Facility.
(iii) "Pledged Borrower Shares" means all
the shares of capital stock of PTMI pledged by PT
Nusantara Ampera Bakti and PT Mapindo Parama as
security under the PTMI Facility, to the extent so
pledged;
(iv) "Pledged PTII Shares" means all shares
of the capital stock of PT Indocopper Investama
Corporation, now or hereafter owned by PTMI,
pledged by PTMI as security under the
PTMI Facility, to the extent so pledged.
(v) "PTMI" means PT Nusamba Mineral
Industri, an Indonesian limited liability company.
(vi) "PTMI Facility" means the senior
secured term loan agreement among PTMI, Chase, as
administrative agent, Union Bank of Switzerland,
as managing agent, and the financial institutions
named therein in an aggregate principal amount of
up to $256,000,000, which facility will be full
recourse to FCX through the Put Agreement, and any
and all notes or other instruments and all
security agreements, pledge agreements and other
agreements executed in connection therewith.
(vii) "Put Agreement" means the Put and
Guaranty Agreement among FCX and Chase, as
security agent, pursuant to which Chase will be
entitled to sell, for the Obligations Amount, to
FCX all, but not a portion of, the Pledged PTII
Shares, the Pledged Borrower Shares or all right,
title and interest of the lenders in, to and under
the PTMI Facility following the occurrence of an
Event of Default (as defined in each of the Put
Agreement and the PTMI Facility) and under certain
other conditions specified in the Put Agreement.
(b) Section 2.1 of the Credit Agreement is hereby
amended and restated to read in its entirety as
follows:
"SECTION 2.1. Annual Determination of
Borrowing Base. As of the Fifth Amendment Closing
Date, and until the next redetermination of the
Borrowing Base, the Borrowing Base shall be
$2,000,000,000. FI shall, on or prior to April 1
in each year commencing with 1996, furnish to each
Bank a Borrowing Base Certificate dated as of
April 1 of such year. Such Borrowing Base
Certificate shall have attached thereto (A) a
report on the operations, results and outlook for
the FI Project prepared by FI and satisfactory to
the Administrative Agent, (B) a schedule setting
forth the projected ownership interest of FI and
FCX in each of the Restricted Subsidiaries and
FCX's projected ownership interest in FI (other
than any interest attributable to the Pledged PTII
Shares) and the projected cash flow associated
with the FI Project and the assets of each of the
Restricted Subsidiaries of FI (an update of such
schedule shall also be required to be delivered to
each Bank on or prior to each Borrowing Base
redetermination) and, commencing with the
Borrowing Base Certificate due April 1, 1997,
(C) FI's estimate of the market value of the
Pledged PTII Shares and an explanation in
reasonable detail of the manner in which such
estimate was calculated, together with supporting
information. On or prior to May 1 following the
receipt by each Bank of such annual Borrowing Base
Certificate, the Administrative Agent shall
determine, based upon the information (including
information as to projected cash flows) contained
in such Borrowing Base Certificate and the reports
and schedules attached thereto and on the
Administrative Agent's Policies, a borrowing base
calculation for FI (the "Borrowing Base") based on
the projected future cash flow associated with the
Base Production (as such term is defined in the
Final FI Trust Agreement) and, after the RTZ
Lender loan is repaid in full and so long as the
Banks have a first priority security interest in
the FIEC Interests under the Final FI Trust
Agreement, the FIEC Interests and including, as an
addition to the Borrowing Base, an amount equal to
the lesser of (i) 50% of the market value of the
Pledged PTII Shares (as determined by the
Administrative Agent based on the information
contained in the Borrowing Base Certificate and
such other factors as the Administrative Agent
shall deem relevant) and (ii) the Obligations
Amount. The recommended Borrowing Base as
determined by the Administrative Agent shall be
promptly communicated to the Banks together with
the list of the Nonrestricted Subsidiaries (if
any) included in such calculation. The Banks
shall promptly consider and approve or disapprove
the recommended Borrowing Base in writing, and
upon approval of such recommendations by the
Required Banks by written notice to the
Administrative Agent, such approved amount shall
constitute the then effective Borrowing Base. In
the event that the Administrative Agent's
recommended Borrowing Base is not approved by the
Required Banks, the Administrative Agent shall
worrk with the Banks to agree upon a revised
Borrowing Base acceptable to Banks sufficient to
constitute the Required Banks. Such determination
of the Borrowing Base by the Administrative Agent
and such approval or nonapproval by the Required
Banks of the effective Borrowing Base shall be
based on their respective Policies. Each such
determination (and each redetermination as
provided for below) of the Borrowing Base shall
remain in effect until the next succeeding
calculation and approval of the Borrowing Base in
the manner provided in this Article II.".
(c) Section 5.2(l) of the Credit Agreement is
hereby amended by adding the following immediately
after the last sentence:
"Notwithstanding anything in this
Section 5.2(l), FCX may enter into the Put
Agreement and may make the Interest Shortfall
Loans, and FCX's obligations under the Put
Agreement and the Interest Shortfall Loans will
not be included in the calculation of the
$150,000,000 annual limit provided for above.".
SECTION 2. Representations and Warranties. Each
of FCX and FI represents and warrants as of the effective
date of this Amendment to the Administrative Agent and to
each of the Banks that:
(a) The representations and warranties set forth
in Article IV of the Credit Agreement and in the other
Loan Documents are true and correct in all material
respects with the same effect as if made on the date
hereof, except to the extent such representations and
warranties expressly relate to an earlier date, in
which case they were true and correct in all material
respects on and as of such earlier date.
(b) As of the date hereof, no Default or Event of
Default has occurred and is continuing under the Credit
Agreement.
SECTION 3. Conditions to Effectiveness. This
Amendment shall become effective as of the date hereof when
the Agents shall have received counterparts of this
Amendment that, when taken together, bear the signatures of
each of FCX, FI and the Required Banks.
SECTION 4. Agreement. Except as specifically
stated herein, the provisions of the Credit Agreement are
and shall remain in full force and effect. As used in the
Credit Agreement the terms "Agreement", "herein",
"hereunder", "hereinafter", "hereto", "hereto" and words of
similar import shall, unless the context otherwise requires,
refer to the Credit Agreement as amended hereby.
SECTION 5. Applicable Law. THIS AMENDMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Amendment may be
executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together
shall constitute but one contract.
SECTION 7. Expenses. The Company agrees to
reimburse the Agents for all out-of-pocket expenses incurred
by it in connection with this Amendment, including the
reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Agents.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed by their respective
authorized officers as of the day and year first written
above.
PT FREEPORT INDONESIA
COMPANY,
by
/s/X. Xxxxxx Xxxxxx
Name: X. Xxxxxx Xxxxxx
Title: Treasurer
FREEPORT-MCMORAN COPPER & GOLD
INC.,
by
/s/X. Xxxxxx Xxxxxx
Name: X. Xxxxxx Xxxxxx
Title: Vice President and
Treasurer
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, as FI
Trustee,
by
/s/Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent, Security
Agent, JAA Security Agent and
Documentary Agent,
by
/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
ABN AMRO BANK N.V., HOUSTON
AGENCY,
by
ABN AMRO NORTH AMERICA, INC.,
as Agent for ABN AMRO BANK
N.V.,
by
/s/H. Xxxx Xxxxxx
Name: H. Xxxx Xxxxxx
Title: Vice President
by
/s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Vice President
ARAB BANKING CORPORATION
(B.S.C.),
by
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED, CAYMAN
ISLANDS BRANCH,
by
/s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Vice President
BANK AUSTRIA
AKTIENGESELLSCHAFT,
by
/s/J. Xxxxxxx Xxxx
Name: J. Xxxxxxx Xxxx
Title: Vice President
by
/s/Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Assistant Vice
President
BANK OF AMERICA ILLINOIS,
by
/s/
Name:
Title:
BANK OF MONTREAL,
by
/s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Director
THE BANK OF NOVA SCOTIA,
by
/s/A. S. Xxxxxxxxxx
Name: A. S. Xxxxxxxxxx
Title: Sr. Team Leader-
THE BANK OF TOKYO-MITSUBISHI,
LTD. HOUSTON AGENCY,
by
/s/ Xxxx X. XxXxxx
Name: Xxxx X. XxXxxx
Title: Vice President and
Manager
BANQUE NATIONALE DE PARIS,
by
/s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Xxxxx: Vice President
BANQUE PARIBAS,
by
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
by
/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
BARCLAYS BANK PLC,
by
/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Director
CHRISTIANIA BANK OG
KREDITKASSE,
by
/s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
by
/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: First Vice
President
DAI-ICHI KANGYO BANK, LTD.,
by
/s/ Masayoshi Komaki
Name: Masayoshi Komaki
Title: Assistant Vice
President
DEUTSCHE BANK, AG, SINGAPORE
BRANCH,
by
/s/ Xxxxxxx Xxx
Name: Xxxxxxx Xxx
Title: Head of Credit
by
/s/ Xxxxxxx Xxxxxxxxx
Name: Xx. Xxxxxxx
Xxxxxxxxx
Title: General Manager
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN
BRANCH,
by
Name:
Title:
by
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO,
by
/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
FIRST NATIONAL BANK OF
COMMERCE,
by
/s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Relationship
Manager
THE FUJI BANK, LIMITED,
HOUSTON AGENCY,
by
/s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Senior Vice
President
HIBERNIA NATIONAL BANK,
by
/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Banking Officer
THE INDUSTRIAL BANK OF JAPAN,
LIMITED NEW YORK BRANCH,
by
/s/ Xxxxxxxxx Xxxxxxxx
Name: Xxxxxxxxx Xxxxxxxx
Title: Executive Vice
President
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED,
by
/s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Joint General
Manager
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED,
by
/s/ Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President &
Manager
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
by
Name:
Title:
NATIONAL WESTMINSTER BANK PLC,
by
/s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
(NASSAU BRANCH),
by
/s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Vice President
THE NORINCHUKIN BANK, NEW YORK
BRANCH,
by
Name:
Title:
PT BANK NEGARA INDONESIA
(PERSERO),
by
/s/ Mohamed El-Shazly
Name: Xxxxxxx X. Xxxxxx
Title: Deputy General
Manager
P.T. BANK RAKYAT INDONESIA
(PERSERO),
by
/s/Kemas M. Arief
Name: Kemas M. Arief
Title: General Manager
by
/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Deputy General
Manager
REPUBLIC NATIONAL BANK OF
NEW YORK,
by
/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
THE ROYAL BANK OF SCOTLAND
PLC,
by
/s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President &
Deputy Manager
THE SAKURA BANK, LIMITED,
HOUSTON AGENCY,
by
/s/Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Senior Vice
President
THE SANWA BANK LIMITED, DALLAS
AGENCY,
by
/s/X. X. Xxxxxxx
Name: X. X. Xxxxxxx
Title: Vice President
SOCIETE GENERALE, SOUTHWEST
AGENCY,
by
/s/Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED,
HOUSTON AGENCY,
by
/s/Xxxxxxxxx Xxxx
Name: Xxxxxxxxx Xxxx
Title: General Manager
THE TOKAI BANK, LIMITED,
by
Name:
Title:
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY,
by
/s/Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Managing Director
by
/s/J. Xxxxxx Xxxxxxxxxxx
Name: J. Xxxxxx Xxxxxxxxxxx
Title: Assistant Vice
President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE,
by
/s/Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President
by
/s/Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: Associate
YASUDA TRUST AND BANKING
COMPANY,
by
/s/Price X. Xxxxxxxx
Name: Price X. Xxxxxxxx
Title: First Vice
President
