EXECUTION VERSION
AMENDMENT
AGREEMENT dated as of July 3, 2007 (this “Amendment Agreement”), in
respect of the CREDIT AGREEMENT (the “Parent Credit Agreement”) dated as
of March 19, 2007, among FREEPORT-MCMORAN COPPER & GOLD INC., a Delaware
corporation (the “Borrower”), the Lenders party thereto, the Issuing
Banks party thereto, and JPMORGAN CHASE BANK, N.A. (“JPMCB”), as
Administrative Agent and as Collateral Agent, and XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED, as Syndication Agent.
The
Borrower has requested that the Parent Credit Agreement be amended and restated
as set forth in Section 4 below and the parties hereto are willing so to amend
the Parent Credit Agreement.
SECTION
1. Defined
Terms. (a) As used in this Amendment Agreement, the following terms have the
meanings specified below:
“Amendment
Effective Date” shall have the meaning assigned to such term in
Section 2.
“Pre-Restatement
Parent Credit Agreement” shall mean the Parent Credit Agreement immediately
before its amendment and restatement in accordance with Section
4(a).
“Restated
Parent Credit Agreement” shall mean the Parent Credit Agreement, as amended
and restated in accordance with Section 4(a).
(b)
From
and after the Amendment Effective Date, the terms “Agreement”, “this Agreement”,
“herein”, “hereinafter”, “hereto”, “hereof” and words of similar import, as used
in the Restated Parent Credit Agreement, shall, unless the context otherwise
requires, refer to the Parent Credit Agreement as amended and restated in the
form of the Restated Parent Credit Agreement, and the term “Parent Credit
Agreement”, as used in the Loan Documents, shall mean the Restated Parent Credit
Agreement. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Restated Parent Credit Agreement
or,
if not defined therein, the Pre-Restatement Parent Credit
Agreement.
SECTION
3. Amendment
Effective Date Transactions. On the Amendment Effective Date, immediately
preceding the effectiveness of the amendment and restatement provided for in
Section 4, each of the parties hereto irrevocably agrees that each of the
following shall occur without any additional conditions or actions of any party
hereto:
(i) The
Borrower shall deposit with the Administrative Agent an amount equal to the
excess of (A) the aggregate principal amount of the Tranche B Term Loans
outstanding on the Amendment Effective Date and all other amounts required
to be
paid by the Borrower in satisfaction of Section 4.01(e) and (f) of the Restated
Parent Credit Agreement over (B) the aggregate amount of the Tranche A
Commitments (such excess, the “Deposit”).
(ii) Each
Tranche A Lender shall make a loan to the Borrower in a principal amount not
exceeding its Tranche A
Commitment . The
proceeds of such loans shall be payable to the Administrative
Agent. The provisions of Section 2.04 of the
Restated Parent Credit Agreement shall apply to the making of such loans on
the
same basis as Borrowings.
SECTION
4. Amendment
and Restatement; Borrowings on Amendment Effective
Date. (a) Each of the parties hereto irrevocably
agrees that on the Amendment Effective Date, immediately after the effectiveness
of the transactions described in Section 3, without the satisfaction of any
additional conditions or any further actions of any party hereto the Parent
Credit Agreement (including the Schedules and Exhibits thereto) shall be amended
and restated to read as set forth in Exhibit A attached hereto (including the
Schedules and Exhibits attached to such Exhibit A).
(b)
Notwithstanding any provision of
this Amendment Agreement, the provisions of Sections 2.11 through 2.16 and
9.03
of the Pre-Restatement Parent Credit Agreement, as in effect immediately prior
to the Amendment Effective Date, will continue to be effective as to all matters
arising out of or in any way related to facts or events existing or occurring
prior to the Amendment Effective Date for the benefit of the Lenders, including
each Lender under the Pre-Restatement Parent Credit Agreement that will not
be a
Lender under the Restated Parent Credit Agreement.
2
SECTION
7. Applicable
Law. THIS AMENDMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
3
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to
be
duly executed by their respective authorized officers as of the day and year
first above written.
PARTIES
TO THE PARENT CREDIT AGREEMENT AND COLLATERAL AGREEMENT
FREEPORT-MCMORAN
COPPER & GOLD INC.,
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by
______________________________
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Name:
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Title:
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AMENDMENT
AGREEMENT
JPMORGAN
CHASE BANK, N.A.,
individually,
as Administrative Agent,
Collateral
Agent, Issuing Bank
and
Swingline Lender,
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by
_____________________________________
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Name:
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FFFFFName:
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Title: |
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AMENDMENT
AGREEMENT
PARTIES
TO THE COLLATERAL AGREEMENT (AND NOT PARTY TO THE PARENT CREDIT
AGREEMENT)
FREEPORT-MCMORAN
COPPER & GOLD INVESTMENT CO., S.A.
FREEPORT-MCMORAN
SPAIN INC.
INTERNATIONAL
SUPPORT INC.
FCX
INVESTMENT LLC
By:________________________________
Name: Xxxxxxxx
X. Xxxxx
Title: Treasurer
FREEPORT
RESEARCH AND ENGINEERING COMPANY
INTERNATIONAL
PURVEYORS INC.
By:________________________________
Name Xxxxx
X. Xxxxxx
Title: Treasurer
INTERNATIONAL
AIR CAPITAL INC.
By:________________________________
Name: Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President and Treasurer
XXXXXX
DODGE CORPORATION
By:________________________________
Name: S.
Xxxxx Xxxxxx
Title: Senior
Vice President
AMENDMENT
AGREEMENT
CHINO
ACQUISITION INC.
CLIMAX
MOLYBDENUM COMPANY
CYPRUS
AMAX MINERALS COMPANY
CYPRUS
CLIMAX METALS COMPANY
CYPRUS
EL
ABRA CORPORATION
CYPRUS
METALS COMPANY
XX
XXXXXXXXXX, INC.
PD
CHILE
HOLDING COMPANY LIMITADA
PD
CHILE
INVESTMENTS, LLC
PD
OJOS
DEL SALADO, INC.
XXXXXX
DODGE BAGDAD, INC.
XXXXXX
DODGE CHICAGO ROD, INC.
XXXXXX
DODGE CHINO, INC.
XXXXXX
DODGE EXPLORATION CORPORATION
XXXXXX
DODGE INDUSTRIES, INC.
XXXXXX
DODGE MIAMI, INC.
XXXXXX
DODGE REFINING CORPORATION
XXXXXX
DODGE XXXXXXX, INC.
XXXXXX
DODGE SALES COMPANY, INCORPORATED
XXXXXX
DODGE SIERRITA, INC.
XXXXXX
XXXXX XXXXXX, INC.
By:________________________________
Name: S.
Xxxxx Xxxxxx
Title: Senior
Vice President
CLIMAX
MOLYBDENUM MARKETING CORPORATION
By:________________________________
Name: Xxxxx
X. Xxxxxxxx
Title: Vice
President
KINETICS
CLIMAX, INC.
By:________________________________
Name: Xxxxxxx
X. Xxxxx
Title: Vice
President
CHINO
MINES COMPANY
By: Xxxxxx
Dodge Chino, Inc., its Manager
By:________________________________
Name: S.
Xxxxx Xxxxxx
Title: Senior
Vice President
CLIMAX
ENGINEERED MATERIALS, LLC
By: Climax
Molybdenum Company,
its
Manager
By:________________________________
Name: S.
Xxxxx Xxxxxx
Title: Senior
Vice President
PD
CHILE
FINANCE COMPANY
By:________________________________
Name: S.
Xxxxx Xxxxxx
Title: Vice
President
XXXXXX
MINING, LLC
By: Xxxxxx
Xxxxx Xxxxxx, Inc., itsManager
By:________________________________
Name: S.
Xxxxx Xxxxxx
Title: Senior
Vice President
8
Signature
Page to be executed by Lenders
under
the Restated Parent Credit Agreement
INCORPORATED,
as Syndication Agent.
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Lender: | ||
By:
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Name:
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Title:
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By:
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Name:
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Title:
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9
EXHIBIT
A
AMENDED
AND RESTATED CREDIT AGREEMENT
dated
as of
July
10, 2007,
among
FREEPORT-MCMORAN
COPPER & GOLD INC.,
The
Lenders Party Hereto,
The
Issuing Banks Party Hereto,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent and Collateral Agent
and
XXXXXXX
LYNCH, PIERCE, XXXXXX
&
XXXXX INCORPORATED,
as
Syndication Agent,
and
HSBC
BANK USA, NATIONAL ASSOCIATION,
THE
BANK OF NOVA SCOTIA,
UBS
SECURITIES LLC,
as
Co-Documentation Agents,
___________________________
X.X.
XXXXXX SECURITIES
INC. XXXXXXX
LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
as
Joint Lead Arrangers and Joint
Bookrunners
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TABLE
OF
CONTENTS
Page
ARTICLE
I
Definitions
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SECTION
1.01. Defined
Terms
1
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SECTION
1.02. Classification of Loans and
Borrowings 37
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SECTION
1.03. Terms
Generally
37
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SECTION
1.04. Accounting Terms;
GAAP
37
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ARTICLE
II
The
Credits
|
SECTION
2.01. Commitments
38
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SECTION
2.02. Loans and
Borrowings
38
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SECTION
2.03. Requests for Borrowings
38
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SECTION
2.04. Funding of Borrowings
39
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SECTION
2.05. Letters of Credit
40
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SECTION
2.06. Interest
Elections
45
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SECTION
2.07. Termination and Reduction of
Commitments
46
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SECTION
2.08. Repayment of Loans; Evidence of
Debt 47
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SECTION
2.09. Amortization of Term
Loans
48
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SECTION
2.10. Prepayment of
Loans
48
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SECTION
2.11. Fees
49
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SECTION
2.12. Interest
50
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SECTION
2.13. Alternate Rate of
Interest
51
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SECTION
2.14. Increased
Costs
51
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SECTION
2.15. Break Funding
Payments
53
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SECTION
2.16. Taxes
53
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SECTION
2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs 54
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SECTION
2.18. Mitigation Obligations; Replacement of
Lenders
56
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SECTION
2.19. Swingline
Loans
57
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ARTICLE
III
Representations
and Warranties
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SECTION
3.01. Organization;
Powers
58
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SECTION
3.02. Authorization;
Enforceability
58
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SECTION
3.03. Governmental Approvals; No
Conflicts
59
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SECTION
3.04. Financial Condition; No Material Adverse
Change
59
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SECTION
3.05. Properties
60
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SECTION
3.06. Litigation and Environmental
Matters 60
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SECTION
3.07. Compliance with Laws and
Agreements
60
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SECTION
3.08. Investment Company
Status
60
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SECTION
3.09. Taxes
61
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SECTION
3.10. ERISA
61
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SECTION
3.11. Disclosure
61
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SECTION
3.12. Subsidiaries
61
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SECTION
3.13. Insurance
61
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SECTION
3.14. Labor
Matters
61
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SECTION
3.15. Security
Documents
62
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SECTION
3.16. Federal Reserve
Regulations 62
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SECTION
3.17. Solvency
62
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SECTION
3.18. Senior
Indebtedness
63
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ARTICLE
IV
Conditions
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SECTION
4.01. Amendment Effective
Date
63
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SECTION
4.02. Each Credit
Event
64
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ARTICLE
V
Affirmative
Covenants
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SECTION
5.01. Financial Statements and Other
Information
65
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SECTION
5.02. Notices of Material
Events
66
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SECTION
5.03. Information Regarding
Collateral
67
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SECTION
5.04. Existence; Conduct of
Business
67
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SECTION
5.05. Payment of
Obligations
67
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SECTION
5.06. Maintenance of
Properties
67
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SECTION
5.07. Insurance
67
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SECTION
5.08. [intentionally
omitted].
68
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SECTION
5.09. Books and Records; Inspection and Audit
Rights
68
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SECTION
5.10. Compliance with Laws; Environmental
Reports
68
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SECTION
5.11. Use of Proceeds and Letters of
Credit
69
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SECTION
5.12. Additional
Subsidiaries
70
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SECTION
5.13. Further
Assurances
70
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ARTICLE
VI
Negative
Covenants
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SECTION
6.01. Indebtedness; Certain Equity
Securities
70
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SECTION
6.02. Liens
72
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SECTION
6.03. Fundamental
Changes
74
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SECTION
6.04. Investments in Unrestricted
Subsidiaries
76
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SECTION
6.05. Asset
Sales
76
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SECTION
6.06. Sale and Leaseback
Transactions 77
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SECTION
6.07. Hedging
Agreements
78
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SECTION
6.08. Restricted Payments; Certain Payments of
Indebtedness
78
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SECTION
6.09. Transactions with
Affiliates
80
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SECTION
6.10. Restrictive
Agreements
80
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SECTION
6.11. Amendment of Material
Documents
81
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SECTION
6.12. Fiscal
Year
82
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SECTION
6.13. Designation of Unrestricted
Subsidiaries
82
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SECTION
6.14. Total Leverage
Ratio
83
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SECTION
6.15. Total Secured Leverage
Ratio
83
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SECTION
6.16. Covenants with Respect to
PTII 83
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2
Events
of
Default
ARTICLE
VIII
The
Agents
ARTICLE
IX
Miscellaneous
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SECTION
9.01. Notices
90
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SECTION
9.02. Waivers;
Amendments
91
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SECTION
9.03. Expenses; Indemnity; Damage
Waiver
93
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SECTION
9.04. Successors and
Assigns
95
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SECTION
9.05. Survival
98
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SECTION
9.06. Counterparts; Integration;
Effectiveness
98
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SECTION
9.07. Severability
98
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SECTION
9.08. Right of
Setoff
98
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SECTION
9.09. Governing Law; Jurisdiction; Consent to Service of
Process; Sovereign
Immunity
99
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SECTION
9.10. WAIVER OF JURY
TRIAL
99
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SECTION
9.11. Headings
100
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SECTION
9.12. Confidentiality
100
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SECTION
9.13. Interest Rate
Limitation
100
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SECTION
9.14. Judgment
Currency
101
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SECTION
9.15. [intentionally
omitted]
101
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SECTION
9.16. Patriot
Act
101
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SECTION
9.17. No Fiduciary
Relationship
101
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SECTION
9.18. Release of Liens and Guarantees; Rejurisdictioning of
PTFI
102
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SECTION
9.19. Non-Public
Information
102
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SCHEDULES:
Schedule
1.01A—
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Disclosed
Matters
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Schedule
1.01B—
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Existing
Letters of Credit
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Schedule
1.01C —
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Ratable
Obligations
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Schedule
1.01D—
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Material
US Properties
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Schedule
1.01E—
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Excluded
Cable and Wire Subsidiaries
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Schedule
1.01F —
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Existing
PD Obligations
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Schedule
2.01 —
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Commitments
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Schedule
3.03 —
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Governmental
Approvals
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Schedule
3.04(d) —
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Certain
Developments
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Schedule
3.12 —
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Subsidiaries
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Schedule
3.13 —
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Insurance
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Schedule
5.10A —
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ICMM
Principles
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Schedule
5.10B —
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ICMM
Commitments with Respect to World Heritage
Properties
|
Schedule
5.10C —
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Response
to Audit of Indonesian Operations by the International
Centre for Corporate Accountability
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Schedule
6.01 —
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Existing
Indebtedness
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3
Schedule
6.02 —
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Existing
Liens
|
Schedule
6.10 —
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Existing
Restrictions
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EXHIBITS:
Exhibit
A —
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Form
of Assignment and Assumption
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Exhibit
B —
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Form
of Perfection Certificate
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Exhibit
C
—
Form of Issuing Bank Agreement
Exhibit
D-1 —
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Form
of opinion of Xxxxx Xxxx & Xxxxxxxx, New York counsel for the
Borrower
and the Subsidiaries
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Exhibit
D-2 —
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Form
of opinion of Jones, Walker, Xxxxxxxx, Poitevant, Carrère
&
Xxxxxxx, L.L.P., U.S. counsel for the Borrower and the
Subsidiaries
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4
AMENDED
AND RESTATED CREDIT AGREEMENT dated as of July 10, 2007 (this
“Agreement”), among FREEPORT-MCMORAN COPPER & GOLD INC., a Delaware
corporation, the Lenders party hereto, the Issuing Banks party hereto, and
JPMORGAN CHASE BANK, N.A. (“JPMCB”), as Administrative Agent and as
Collateral Agent, and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, as
Syndication Agent.
The
Borrower has requested that the Lenders agree to amend and restate the Existing
Parent Credit Agreement in order to refinance the Tranche B Term Loans
thereunder and to continue the revolving credit facility provided for
therein. The Borrower has requested that (a) the Tranche A Lenders
extend credit in the form of Tranche A Term Loans on the Amendment Effective
Date in an aggregate principal amount not in excess of $2,450,000,000, and
(b)
the Revolving Lenders extend credit in the form of Revolving Loans, the
Swingline Lender extend credit in the form of Swingline Loans and the Issuing
Banks issue Letters of Credit, in each case at any time and from time to time
during the Revolving Availability Period such that the aggregate Revolving
Exposures will not exceed $1,000,000,000 at any time. The proceeds of
the Tranche A Term Loans, together with cash will be used to refinance the
Tranche B Term Loans under the Existing Parent Credit
Agreement. Letters of Credit and the proceeds of the Revolving Loans
and Swingline Loans drawn after the Amendment Effective Date will be used for
working capital and other general corporate purposes of the Borrower and its
Subsidiaries.
ARTICLE
I
Definitions
SECTION
1.01. Defined
Terms. As used in this Agreement, the following terms have the
meanings specified below: Capitalized terms used but not defined in
this Agreement have the meanings assigned thereto in the Restated Credit
Agreement.
“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or
the Loans comprising such Borrowing, are bearing interest at a rate determined
by reference to the Alternate Base Rate.
“Administrative
Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative
agent for the Lenders hereunder.
“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Administrative Agent.
“Affiliate”
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by
or
is under common Control with the Person specified.
“Affiliate
Subordination Agreement” means the Affiliate Subordination Agreement dated
as of March 19, 2007, among the Borrower, the Subsidiaries from time to time
party thereto and the Administrative Agent.
“Agents”
means, collectively, the Administrative Agent, the Collateral Agent and the
Syndication Agent.
“Agreement”
has the meaning assigned to such term in the preamble hereto.
“Alternate
Base Rate” means, for any day, a rate per annum equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus ½ of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of
such
change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
“Amendment
Effective Date” means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with
Section 9.02).
“Amendment
Agreement” shall mean the Amendment Agreement dated as of the Amendment
Effective Date among the Borrower, the Subsidiaries party thereto, the lenders
party thereto, the issuing banks party thereto, the Administrative Agent and
the
Collateral Agent.
“Applicable
Percentage” means, at any time with respect to any Revolving Lender, the
percentage of the aggregate Revolving Commitments represented by such Lender’s
Revolving Commitment at such time. If the Revolving Commitments have
terminated or expired, the Applicable Percentages shall be determined based
upon
the Revolving Commitments most-recently in effect, giving effect to any
assignments of Revolving Loans, LC Exposures and Swingline Exposures that occur
after such termination or expiration.
“Applicable
Rate” means, for any day, with respect to any Loan that is a Tranche A Term
Loan or Revolving Loan, or with respect to the commitment fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption “ABR Spread”, “Eurodollar Spread”, or “Commitment Fee Rate”,
as the case may be, based upon the Credit Ratings by Xxxxx’x and S&P
applicable on such date:
2
Credit
Ratings:
|
Eurodollar
Spread
(bps
per annum)
|
ABR
Spread
(bps
per annum)
|
Commitment
Fee Rate
(bps
per annum)
|
Category
1
BBB+/Baa1
or higher
|
75
|
0
|
15
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Category
2
BBB/Baa2
or higher
|
100
|
0
|
20
|
Category
3
BBB-/Baa3
|
125
|
25
|
25
|
Category
4
BB+/Ba1
|
150
|
50
|
37.5
|
Category
5
BB/Ba2
|
150
|
50
|
50
|
Category
6
BB-/Ba3
or lower
|
175
|
75
|
50
|
For
purposes of the foregoing,
(i) if either Xxxxx’x or S&P shall not have in effect a Credit Rating
(other than by reason of the circumstances referred to in the last sentence
of
this definition), then the Borrower and the Lenders shall negotiate in good
faith to agree upon another rating agency to be substituted by an amendment
to
this Agreement for the rating agency which shall not have a Credit Rating in
effect, and pending the effectiveness of such amendment, the Applicable Rate
shall be determined by reference to the available Credit Rating; (ii) if
the Credit Rating established or deemed to have been established by Xxxxx’x and
S&P shall fall within different Categories, the Applicable Rate shall be
based on the higher of the two Credit Ratings unless one of the two Credit
Ratings is two or more Categories lower than the other, in which case the
Applicable Rate shall be determined by reference to the Category next below
that
of the higher of the two Credit Ratings; and (iii) if the Credit Rating
established or deemed to have been established by Xxxxx’x and S&P shall be
changed (other than as a result of a change in the rating system of Xxxxx’x or
S&P), such change shall be effective as of the date on which it is first
announced by the applicable rating agency. Each change in the
Applicable Rate shall apply during the period commencing on the effective date
of such change and ending on the date immediately preceding the effective date
of the next such change. If the rating system of Xxxxx’x or S&P
shall change, or if either such rating agency shall cease to be in the business
of rating corporate debt obligations, the Borrower and the Lenders shall
negotiate in good faith to amend this definition to reflect such changed rating
system or the unavailability of ratings from such rating agency and, pending
the
effectiveness of any such amendment, the Applicable Rate shall be
3
determined
by reference to the Credit Rating most recently in effect prior to such change
or cessation.
“Assignment
and Assumption”
means an assignment and assumption entered into by a Lender and an assignee
(with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A attached
hereto or any other form approved by the Administrative Agent.
“Atlantic
Copper Financing” means that certain Third Amended and Restated Term Loan
and Working Capital Agreement, as amended from time to time, among Atlantic
Copper, S.A., the lenders party thereto, Barclays Capital, as arranger and
Barclays Bank PLC, as agent.
“Attributable
Debt” means, on any date, in respect of any lease of the Borrower or any
Restricted Subsidiary entered into as part of a Project Financing or a sale
and
leaseback transaction subject to Section 6.06, (i) if such lease is a
Capital Lease Obligation, the capitalized amount thereof that would appear
on a
balance sheet of such Person prepared as of such date in accordance with GAAP
and (ii) if such lease is not a Capital Lease Obligation, the capitalized
amount of the remaining lease payments under such lease that would appear on
a
balance sheet of such Person prepared as of such date in accordance with GAAP
if
such lease were accounted for as a Capital Lease Obligation.
“Attributable
Debt Payments” means, for FCX and the Restricted Subsidiaries for any
period, all payments made during such period in respect of Attributable
Debt.
“Available
Domestic Cash” means, as of any date, the aggregate amount of cash and
Permitted Investments held on such date by FCX, any Restricted Subsidiary that
is incorporated or organized under the laws of the United States of America,
any
State thereof or the District of Columbia or any Guarantor, other than cash
and
Permitted Investments (a) held in accounts outside the United States of America
or (b) subject to any Lien securing Indebtedness or other obligations (other
than any Lien under the Loan Documents or “Loan Documents” (as defined in the
Restated Credit Agreement)).
“Board”
means the Board of Governors of the Federal Reserve System of the United States
of America.
“Borrower”
means FCX.
“Borrowing”
means (a) Loans of the same Class and Type, made, converted or continued on
the
same date and, in the case of Eurodollar Loans, as to which a single Interest
Period is in effect, or (b) a Swingline Loan.
“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.
“Business
Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain
closed; provided that, when used in connection with a Eurodollar Loan,
the term “Business Day” shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
“Capital
Expenditures” means, for any period, (a) the additions to property,
plant and equipment and other capital expenditures of FCX and its Restricted
4
Subsidiaries
that are (or would be) set forth in a consolidated statement of cash flows
of
FCX for such period prepared in accordance with GAAP and (b) that portion
of principal payments on Capital Lease Obligations made by FCX and the
Restricted Subsidiaries during such period that are attributable to additions
to
property, plant and equipment and that have not otherwise been reflected on
the
consolidated statement of cash flows as additions to property, plant and
equipment or other capital expenditures.
“Capital
Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases
on
a balance sheet of such Person under GAAP, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance with
GAAP.
“CFC”
shall mean (a) each person that is a "controlled foreign person" for purposes
of
the Code and (b) each Subsidiary of each such controlled foreign
person.
“Change
in Control” means (a) the failure of FCX to own, either directly or
through its wholly owned Subsidiaries, PTFI Shares representing at least 80%
of
the aggregate ordinary voting power attributable to all of the issued and
outstanding PTFI Shares (or following a transaction permitted under Section
6.05(c), the minimum percentage of PTFI Shares then permitted to be held by
FCX); (b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the Effective Date) of Equity Interests
representing more than 50% of the aggregate ordinary voting power represented
by
the issued and outstanding Equity Interests in FCX; (c) occupation of a
majority of the seats (other than vacant seats) on the board of directors of
FCX
by Persons who were not (i) members of the board of directors of FCX on the
Effective Date or (ii) appointed as, or nominated for election as,
directors by a majority of directors referred to in clause (i) above or approved
pursuant to this clause (ii); or (d) the occurrence of any “Change of
Control” or “Change in Control” as defined in the Senior Notes Documents or in
any indenture or other governing agreement relating to any Material Indebtedness
of FCX or any Disqualified Stock of FCX (to the extent the aggregate amount
of
the applicable Disqualified Stock exceeds $100,000,000).
“Change
in Law” means (a) the adoption of any law, rule or regulation after the
Effective Date, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
Effective Date or (c) compliance by any Lender or Issuing Bank (or, for
purposes of Section 2.14(b), by any lending office of such Lender or by
such Lender’s or Issuing Bank’s holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the Effective Date.
“Class”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or
the Loans comprising such Borrowing, are Revolving Loans, Tranche A Term Loans
or Swingline Loans and, when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or Tranche A
Commitment.
“Class”,
when used in reference to any Lender, refers to whether such Lender has a Loan
or Commitment with respect to a particular Class.
5
“Code”
means the United States Internal Revenue Code of 1986, as amended from time
to
time.
“Collateral”
means any and all “Collateral”, as defined in any applicable Security Document,
or any asset or right in which a Lien is granted in favor of the Collateral
Agent pursuant to any Security Document.
“Collateral
Agent” means JPMCB in its capacity as Collateral Agent under the Collateral
Agreement and other Security Documents.
“Collateral
Agreement” means the Guarantee and Collateral Agreement among the Borrower,
the Subsidiary Guarantors and the Collateral Agent dated as of March 19,
2007. In the event that the Guarantee provided by PTII is provided in
a document other than the Collateral Agreement, references herein to the
Collateral Agreement shall be deemed to include such other document to the
extent of such Guarantee.
“Collateral
and Guarantee Minimum Requirement” means, at any time, the requirement that
the combined assets and revenues of all the Permitted Guarantors that are not
Loan Parties and of all the Permitted Pledgees the Equity Interests in which
are
not pledged to the extent required under clause (b) or (d), as applicable,
of
the definition of Collateral and Guarantee Requirement (other than Excluded
Guarantors and Excluded Pledgees), taken together with all the assets and
revenues of their subsidiaries, represent less than 5% of Consolidated Total
Assets and less than 5% of Consolidated Revenues; provided that for
purposes of the foregoing calculation, (i) the only pledge of PTFI Shares held
by FCX required to satisfy the Collateral and Guarantee Minimum Requirement
shall be the pledge required to be made on the Effective Date under the Restated
Credit Agreement by the Third Amended and Restated FCX Pledge Agreement (PTFI
Shares) (as defined therein), (ii) the PTFI Shares held by PTII shall not be
required to be pledged at any time, (iii) the Equity Interests in or owned
by
the other Indonesian Subsidiaries shall not be required to be pledged at any
time and (iv) the failure to establish a Holdco in circumstances in which a
Holdco is required shall be deemed to be the failure of a Permitted Guarantor
to
become a Subsidiary Guarantor.
“Collateral
and Guarantee Requirement” means, at any time, the requirement
that:
(a)
the
Collateral Agent shall have received from each Loan Party (i) either (x) a
counterpart of the Collateral Agreement, duly executed and delivered on behalf
of such Loan Party or (y) in the case of any Person that becomes a Loan Party
after the Effective Date, a supplement to the Collateral Agreement, in the
form
specified therein, duly executed and delivered on behalf of such Loan Party
and
(ii) with respect to any Loan Party that directly owns Equity Interests of
a
Foreign Subsidiary required to be pledged under paragraph (d) below, a
counterpart of each Foreign Pledge Agreement that the Administrative Agent
determines, based on the advice of counsel, to be necessary or advisable in
connection with the pledge of, or the granting of security interests in, Equity
Interests of such Foreign Subsidiary, in each case duly executed and delivered
on behalf of such Loan Party and such Foreign Subsidiary;
(b)
[intentionally omitted];
(c)
[intentionally omitted];
6
(d)
all
outstanding Equity Interests in Permitted Pledgees (other than Equity Interests
in the Excluded Pledgees, PTFI Shares and PTII Shares), in each case owned
by or
on behalf of any Loan Party (or any other Restricted Subsidiary (other than
a
CFC) that is not a Loan Party but is not precluded from pledging Equity
Interests), shall have been pledged pursuant to the Collateral Agreement or
a
Foreign Pledge Agreement (except that the Loan Parties shall not be required
to
pledge more than 65% of the outstanding voting Equity Interests of any CFC
that
is not a Loan Party) and the Collateral Agent shall (except in the case of
any
such Equity Interests that are not certificated securities) have received the
certificates or other instruments representing all such Equity Interests,
together with undated stock powers or other instruments of transfer with respect
thereto endorsed in blank;
(e)
a
security interest in all Indebtedness of any Subsidiary that is owing to FCX
shall have been granted pursuant to the Collateral Agreement; and any such
Indebtedness (other than Indebtedness of any Subsidiary owing to FCX that is
less than $25,000,000 in the aggregate for all such Indebtedness of such
Subsidiary owing to FCX) shall be evidenced by a promissory note, which shall
have been delivered to the Collateral Agent, together with undated instruments
of transfer with respect thereto endorsed in blank;
(f)
all
documents and instruments, including Uniform Commercial Code financing
statements, and all control agreements required in respect of deposit or
securities accounts of FCX under the Collateral Agreement, required by law
or
reasonably requested by the Administrative Agent to be filed, registered or
recorded to create the Liens intended to be created by the Security Documents
and perfect such Liens to the extent required by, and with the priority required
by, the Security Documents, shall have been filed, registered or recorded or
delivered to the Administrative Agent or the Collateral Agent, as applicable,
for filing, registration or recording;
(g)
the
Collateral and Guarantee Minimum Requirement shall be satisfied;
(h)
the
Borrower shall have established each of the Holdcos referred to in clauses
(a)
and (b) of the definition of Holdco; all the Equity Interests in each Holdco
shall have been pledged pursuant to the Collateral Agreement; and each Holdco
shall be a Subsidiary Guarantor;
(i)
the
Affiliate Subordination Agreement shall have been delivered to the
Administrative Agent, and the Borrower, each other Loan Party and each
Subsidiary that is not a Loan Party and holds Indebtedness of the Borrower
or
any other Loan Party in an aggregate principal amount greater than $20,000,000
shall be party thereto;
(j)
[intentionally omitted]; and
(k)
each
Loan Party shall have obtained all material consents and approvals required
to
be obtained by it in connection with the execution and delivery of all Security
Documents to which it is a party, the performance of its obligations thereunder
and the granting by it of the Liens thereunder.
Notwithstanding
the foregoing:
7
(A)
|
Permitted
Guarantors shall not be required to provide Guarantees or Liens on
any of
their assets if in the absence of such Guarantees the Collateral
and
Guarantee Minimum Requirement shall be
satisfied.
|
(B)
|
Equity
Interests in Permitted Pledgees shall not be required to be pledged
if in
the absence of such pledges the Collateral and Guarantee Minimum
Requirement shall be satisfied.
|
(C)
|
Assets
may be excluded from the Collateral and Permitted Guarantors may
be
excluded from Guarantee requirements in circumstances where (1) the
Borrower and the Agents mutually agree (prior to the Effective Date
in the
case of assets and Subsidiaries held on the Effective Date) that
the cost
of obtaining a security interest or pledge in such assets or providing
such a Guarantee are excessive in relation to the benefit to the
Lenders
of the security to be afforded thereby or (2) the granting of a
Lien on any such assets or the provision of a Guarantee by any such
Subsidiary shall require the consent of any Governmental Authority
or any
other Person that is not the Borrower or a Restricted Subsidiary
and
either (x) such consent has not been obtained despite commercially
reasonable efforts of the Borrower and the Restricted Subsidiaries
to
obtain such consent or (y) the Borrower determines in good faith
that
requesting or obtaining such consent would be detrimental to the
business
of the Borrower and the Restricted Subsidiaries or to their relations
with
applicable Governmental Authorities or joint venture or other business
partners or that such consents could not be obtained without the
making of
payments that are not deminimis in amount or the granting of
material concessions to such Governmental Authorities or joint venture
or
business partners.
|
(D)
|
Equity
Interests in Permitted Pledgees may be excluded or released from
the
Collateral and Permitted Guarantors may be excluded or released from
the
Guarantee requirements in the event of any Project Financing by a
Project
Financing Subsidiary (other than PD or PTFI) if the Borrower shall
advise
the Collateral Agent that (1) such exclusion or release of the Project
Financing Subsidiary or its direct or indirect parent or parents
will be
required by the financing party or parties in connection with such
Project
Financing, and (2) a Subsidiary other than PD (which may be a new
Holdco
established for the purpose) that directly or indirectly holds such
Project Financing Subsidiary as a subsidiary is a Guarantor or a
Subsidiary the Equity Interests in which are pledged as Collateral
to the
extent required under clause (b) or (d), as applicable, of this definition
of Collateral and Guarantee Requirement; provided, however,
that no such Guarantee shall be released unless each Ratable Guarantee
by
the applicable Loan Party shall be released upon the release of such
Loan
Party’s Guarantee of the Secured
Obligations.
|
(E)
|
None
of PTFI, PTII or any other Indonesian Subsidiary will be required
to
provide any Collateral to secure the Secured
Obligations.
|
(F)
|
The
Administrative Agent may grant extensions of time for the satisfaction
of
the Collateral and Guarantee Requirement in respect of any particular
Collateral or any particular Subsidiary if it determines that the
satisfaction of the Collateral and Guarantee Requirement with respect
to
such Collateral or such Subsidiary cannot be accomplished without
undue
expense or unreasonable effort by the time or times at which it would
otherwise be required to be satisfied under this Agreement or any
Security
Document.
|
8
“Commitment”
means
a Revolving
Commitment, Swingline Commitment, or Tranche A Commitment, or any combination
thereof (as the context requires).
“Concentrate
Sales Agreements” means all contracts and agreements with respect to the
sale or disposition of ores or minerals produced by the mining, concentrating
and related operations conducted by PTFI pursuant to the Contract of
Work.
“Confidential
Information Materials” means the confidential information materials dated
February 2007 relating to the Borrower and the Effective Date Transactions
and
the confidential information materials labeled Lender Conference Call and dated
June 11, 2007.
“Consolidated
Adjusted Net Income” means, for any period, the net income of FCX and its
Subsidiaries for such period; provided, however, that there shall
not be included in the calculation of such Consolidated Adjusted Net
Income:
(1)
any
net income of any Person (other than FCX) if such Person is not a Restricted
Subsidiary, except that: (A) subject to the limitations contained in
clause (4) below, FCX’s equity in the net income of any such person for such
period shall be included in such Consolidated Adjusted Net Income up to the
aggregate amount of cash actually distributed by such Person during such period
to FCX or a Restricted Subsidiary as a dividend or other distribution (subject,
in the case of a dividend or other distribution made to a Restricted Subsidiary,
to the limitations contained in clause (3) below); and (B) FCX’s equity in a net
loss of any such Person for such period shall be included in determining such
Consolidated Adjusted Net Income;
(2)
any
net income (or loss) of any Person acquired by FCX or a Subsidiary of FCX in
a
pooling of interests transaction (or any transaction accounted for in a manner
similar to a pooling of interests) for any period prior to the date of such
acquisition;
(3)
any
net income (or loss) of any Restricted Subsidiary if such Restricted Subsidiary
is subject to restrictions, directly or indirectly, on the payment of dividends
or the making of distributions by such Restricted Subsidiary, directly or
indirectly, to FCX, except that: (A) subject to the limitations
contained in clause (4) below, FCX’s equity in the net income of any such
Restricted Subsidiary for such period shall be included in such Consolidated
Adjusted Net Income up to the aggregate amount of cash actually distributed
by
such Restricted Subsidiary during such period to FCX or another Restricted
Subsidiary as a dividend or other distribution (subject, in the case of a
dividend or other distribution made to another Restricted Subsidiary, to the
limitation contained in this clause); and (B) FCX’s equity in a net loss of any
such Restricted Subsidiary for such period shall be included in determining
such
Consolidated Adjusted Net Income;
(4)
any
gain (or loss) realized upon the sale or other disposition of any asset of
FCX
or its Subsidiaries (including pursuant to any sale and leaseback transaction)
that is not sold or otherwise disposed of in the ordinary course of business
and
any gain (or loss) realized upon the sale or other disposition of any Equity
Interest in any Person;
(5)
any
extraordinary, unusual or non-recurring gain or loss;
9
(6)
the
cumulative effect of a change in accounting principles;
(7)
any
non-cash gain or loss attributable to any Hedging Agreement relating to
commodity prices until such time as it is settled, at which time the net gain
or
loss shall be included;
(8)
accruals and reserves that are established within twelve months after the
Effective Date and that are so required to be established as a result of the
Effective Date Transactions in accordance with GAAP;
(9)
any
increase in amortization, depletion or depreciation, increase in cost of goods
sold attributable to metal inventories or any one-time non-cash charges
resulting from purchase accounting in connection with the Effective Date
Transactions or any acquisition that is consummated after the Effective
Date;
(10)
any
non-cash impairment charges resulting from the application of Statement of
Financial Accounting Standards No. 142 and No. 144 and any amortization of
intangibles pursuant to Statement of Financial Accounting Standards No.
141;
(11)
any
net after-tax income or loss from discontinued operations and any net after-tax
gain or loss on disposal of discontinued operations;
(12)
any
non-cash compensation expense recognized from grants of stock appreciation
or
similar rights, stock options, restricted stock, restricted stock units or
other
rights to officers, directors and employees of such Person or any of its
Restricted Subsidiaries; and
(13)
any
premiums, fees and expenses (and any amortization thereof) paid in connection
with the Effective Date Transactions.
in
each
case, for such period. Notwithstanding the foregoing, there shall be excluded
from Consolidated Adjusted Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries to FCX
or a
Restricted Subsidiary to the extent such dividends, repayments or transfers
reduce the Restricted Uses.
“Consolidated
EBITDA” means, for any period, Consolidated Net Income for such period plus
(a) without duplication and to the extent deducted in determining such
Consolidated Net Income, the sum of (i) consolidated interest expense and
Attributable Debt Payments for such period, (ii) consolidated income tax
expense for such period, (iii) all amounts attributable to depreciation and
amortization for such period, (iv) any extraordinary charges or significant
nonrecurring non-cash charges or non-cash charges resulting from requirements
to
xxxx-to-market derivative obligations (including commodity-linked securities)
for such period (provided that any cash payment made with respect to any
such non-cash charge shall be subtracted in computing Consolidated EBITDA for
the period in which such cash payment is made), (v) any impairment charges
or
asset write offs or amortization related to intangible assets and long-lived
assets pursuant to GAAP (including pursuant to Statement of Financial Accounting
Standards No. 141, 142 or 144), (vi) integration expenses in connection with
the
Effective Date Transactions and any restructuring charges and reserves, (vii)
fees and expenses in respect of the Effective Date Transactions, (viii) fees
and
expenses in respect of consummated or proposed acquisitions, dispositions or
financings, (ix) any purchase accounting adjustments and any step-ups with
respect to re-valuing assets and liabilities
10
in
connection with the Effective Date Transactions or any acquisition or Investment
consummated after the Effective Date (including any increase in amortization,
depletion or depreciation, increase in cost of goods sold attributable to metal
inventories or any one-time non-cash charges), (x) other non-cash charges,
including non-cash charges attributable to stock options and other stock-based
compensation, (xi) any costs or expenses incurred by the Borrower or a
Restricted Subsidiary pursuant to any management equity plan or stock option
plan or any other management or employee benefit plan or agreement or any stock
subscription or stockholders agreement, to the extent that such costs or
expenses are funded with cash proceeds contributed to the capital of the
Borrower or net cash proceeds of issuance of Equity Interests of the Borrower,
(xii) charges attributable to liability or casualty events or business
interruption, to the extent covered (or reasonably expected to be covered)
by
insurance and (xiii) payments made in respect of obligations of the types
included in clause (j) of the definition of Indebtedness; minus (b) without
duplication and to the extent included in determining such Consolidated Net
Income, any extraordinary gains or non-cash gains for such period; and plus
or
minus, as applicable, (c) without duplication and to the extent deducted or
included, as the case may be, in determining such Consolidated Net Income (i)
any after-tax effect of gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions other than in the ordinary course
of
business, as determined in good faith by the Borrower, (ii) any net after-tax
gains or losses from early extinguishment of Indebtedness or hedging obligations
or other derivative instruments, including without limitation, any write-off
of
deferred financing costs, (iii) any net non-cash gain or loss resulting from
currency translation gains or losses related to currency re-measurements of
Indebtedness, (iv) the cumulative effect of a change in accounting principles
and (v) any net after-tax income or loss from discontinued operations and any
net after-tax gain or loss on disposal of discontinued operations, all
determined on a consolidated basis in accordance with
GAAP. Notwithstanding anything to the contrary contained herein,
Consolidated EBITDA shall be deemed to be $2,615,500,000, $2,455,700,000 and
$2,355,500,000, respectively, for the fiscal quarters ended June 30, 2006,
September 30, 2006 and December 31, 2006.
For
the
purposes of calculating Consolidated EBITDA for any period of four consecutive
fiscal quarters (each, a “Reference Period”), if during such Reference
Period (or, in the case of pro forma calculations, during the period from the
last day of such Reference Period to and including the date as of which such
calculation is made) FCX or any Restricted Subsidiary shall have made a Material
Disposition or Material Acquisition, Consolidated EBITDA for such Reference
Period shall be calculated after giving pro forma effect thereto as if such
Material Disposition or Material Acquisition occurred on the first day of such
Reference Period (with the Reference Period for the purposes of pro forma
calculations being the most recent period of four consecutive fiscal quarters
for which the relevant financial information is available). As used
in this definition, “Material Acquisition” means any acquisition of
property or series of related acquisitions of property that (a) constitutes
assets comprising all or substantially all of an operating unit of a business
or
constitutes common stock of any Person and (b) involves consideration in excess
of $200,000,000; and “Material Disposition” means any sale, transfer or other
disposition of property or series of related sales, transfers or other
dispositions of property that (a) involves assets comprising all or
substantially all of an operating unit of a business or involves common stock
of
any Person owned by the Borrower and the Restricted Subsidiaries and (b) yields
gross proceeds to the Borrower or any Restricted Subsidiary in excess of
$200,000,000.
“Consolidated
Net Income” means, for any period, the net income or loss of FCX and the
Restricted Subsidiaries for such period determined on a consolidated basis
in
accordance with GAAP; provided that there shall be excluded the income or
loss
11
of
any
Person accrued prior to the date it becomes a Restricted Subsidiary or is merged
into or consolidated with FCX or any Restricted Subsidiary or the date that
such
Person’s assets are acquired by FCX or any Restricted Subsidiary.
Notwithstanding
anything to the contrary contained herein, it is understood and agreed that
for
purposes of calculating Consolidated EBITDA, Consolidated Net Income shall
be
(a) computed without deduction for minority interests and (b) subject to the
final paragraph of the definition of “Consolidated EBITDA”.
“Consolidated
Revenues” means, at any time, the revenues of FCX and the Restricted
Subsidiaries, as set forth in the most recent consolidated statement of income
of FCX and the Restricted Subsidiaries delivered pursuant to Section 5.01 on
such date of determination, determined on a consolidated basis in accordance
with GAAP.
“Consolidated
Total Assets” means, at any time, the total assets of the Borrower and the
Restricted Subsidiaries, as set forth in the most recent consolidated balance
sheet of the Borrower and the Restricted Subsidiaries delivered pursuant to
Section 5.01 (or for purposes of determining compliance with the Collateral
and
Guarantee Minimum Requirement prior to the completion of purchase accounting
allocations in respect of the Transactions, the balance sheets referred to
in
Section 3.04(a)(i) and (b)) on or prior to such date of determination,
determined on a consolidated basis in accordance with GAAP.
“Contract
of Work” means the Contract of Work made December 30, 1991, between the
Ministry of Mines of the Government of the Republic of Indonesia, acting for
and
on behalf of the Government of the Republic of Indonesia, and PTFI, together
with any related implementation agreement or Memorandum of Understanding with
such Ministry of Mines acting on behalf of the Government of the Republic of
Indonesia, after giving effect to the PT-Rio Tinto Indonesia COW
Assignment.
“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or
otherwise. “Controlling” and “Controlled” have meanings correlative
thereto.
“Credit
Rating” means a rating assigned by S&P or Xxxxx’x to the credit
facilities provided by this Agreement.
“Default”
means any event or condition which constitutes an Event of Default or which
upon
notice, lapse of time or both would, unless cured or waived, become an Event
of
Default.
“Designated
Noncash Consideration” means the fair market value of noncash consideration
received by FCX or a Restricted Subsidiary in connection with an asset
disposition pursuant to Section 6.05(b) that is designated as Designated Noncash
Consideration pursuant to a certificate of a Financial Officer of FCX delivered
to the Administrative Agent, setting forth the basis of such valuation (which
amount will be reduced by the fair market value of the portion of the noncash
consideration converted to cash within 180 days following the consummation
of
the applicable asset disposition).
“Designation”
has the meaning assigned to such term in Section 6.13(a).
12
“Disclosed
Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 1.01A.
“Disqualified
Stock” means, with respect to any Person, any Equity Interests of such
Person that, by its terms (or by the terms of any security or other Equity
Interests into which it is convertible or for which it is redeemable or
exchangeable either mandatorily or at the option of the holder thereof), or
upon
the happening of any event or condition (a) matures or is mandatorily redeemable
(other than solely for Qualified Stock and cash in lieu of fractional shares
of
Qualified Stock), pursuant to a sinking fund obligation or otherwise (except
as
a result of a change of control or asset sale to the extent the terms of such
Equity Interests provide that such Equity Interests shall not be required to
be
repurchased or redeemed until the repayment in full of the Loans and all other
Secured Obligations that are accrued and payable and the termination of the
Commitments have occurred or such repurchase or redemption is otherwise
permitted by this Agreement (including as a result of a waiver hereunder)),
(b)
is redeemable at the option of the holder thereof (other than solely for
Qualified Stock and cash in lieu of fractional shares of Qualified Stock),
in
whole or in part, or (c) is or becomes convertible into or exchangeable for
Indebtedness or any other Equity Interests that would constitute Disqualified
Stock, in each case, prior to the date that is 91 days after the Tranche A
Maturity Date; provided, however, that only the portion of the
Equity Interests that so mature or are mandatorily redeemable, are so
convertible or exchangeable or are so redeemable at the option of the holder
thereof prior to such date shall be deemed to be Disqualified Stock; provided
further, however, that if any Equity Interests are issued to any
employee or to any plan for the benefit of employees of FCX or its Subsidiaries
or by any such plan to such employees, such Equity Interests shall not
constitute Disqualified Stock solely because they may be required to be
repurchased by FCX or a Subsidiary in order to satisfy applicable statutory
or
regulatory obligations or as a result of such employee’s termination, death or
disability.
“dollars”
or “$” refers to lawful money of the United States of
America.
“Effective
Date” means March 19, 2007.
“Effective
Date Transactions” means the “Transactions” as defined under the Existing
Parent Credit Agreement.
“Environmental
Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any
way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of or exposure to any hazardous or
toxic substances, materials or wastes.
“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties
or
indemnities), of the Borrower or any Subsidiary directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of
any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment
or
(e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the
foregoing.
13
“Equity
Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or
other equity ownership interests in a Person, and any warrants, options or
other
rights entitling the holder thereof to purchase or acquire any such equity
interest.
“Equity
Proceeds” shall mean the Net Proceeds received by FCX from the issuance or
sale by FCX of common stock of FCX or preferred stock (other than Disqualified
Stock) of FCX (other than sales of such stock to directors, officers or
employees of FCX or any Subsidiary in connection with employee compensation
and
incentive arrangements).
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from
time
to time.
“ERISA
Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
“ERISA
Event” means (a) any “reportable event”, as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to
a Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of
any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to an intention to terminate
any Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability
with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a
determination that a Multiemployer Plan is, or is expected to be, insolvent
or
in reorganization, within the meaning of Title IV of ERISA.
“ERM
Report” means the Review of the Freeport McMoRan Copper and Gold Operation
in Papua, Indonesia Report dated as of June 17, 2006 prepared by Environmental
Resources Management.
“Eurodollar”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or
the Loans comprising such Borrowing, are bearing interest at a rate determined
by reference to the LIBO Rate.
“Eurodollar
Reserve Requirement” means, with respect to Eurodollar Loans, the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in
Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar
Loans shall be deemed to constitute eurocurrency funding and to be subject
to
such reserve requirements without benefit of or credit for proration, exemptions
or offsets that may be available from time to time to any
14
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
Guarantors” means each of (a) for so long as the applicable contractual
restrictions remain in effect, Xxxxxx Dodge Morenci, Inc., PD Ojos del Salado,
Inc. and XX Xxxxxxxxxx, Inc., (b) Xxxxxx Dodge Katanga Corporation, Eastern
Mining Company, FM Services Company and Overseas Service Company, (c) each
Subsidiary included in the international wire and cable business of PD and
set
forth on Schedule 1.01E and (d) each other Permitted Guarantor formed or
acquired after the Effective Date which the Administrative Agent shall have
agreed in accordance with clause (C)(1), or the Borrower shall have determined
in accordance with clause (C)(2), in each case of the definition of Collateral
and Guarantee Requirement shall not be required to provide a
guarantee.
“Excluded
Pledgees” means each of (a) at all times that an intercompany note
representing substantially all its assets is pledged in accordance with the
Collateral Agreement, Freeport Finance Company B.V., (b) for so long as the
applicable contractual restrictions remain in effect, Cyprus Climax Metals
Company and Sociedad Minera Cerro Verde S.A.A., (c) Xxxxxx Dodge Katanga
Corporation , Xxxxxx Holdings Ltd., Tenke Fungurume, Sociedad Contractual Minera
el Abra and Overseas Service Company, (d) each Subsidiary included in the
international wire and cable business of PD and set forth on Schedule 1.01E
and
(e) each other Permitted Pledgee formed or acquired after the Effective Date
the
Equity Interests in which the Administrative Agent shall have agreed in
accordance with clause (C)(1), or the Borrower shall have determined in
accordance with clause (C)(2), in each case of the definition of Collateral
and
Guarantee Requirement shall not be required to be pledged.
“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account
of any obligation of the Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of America,
or
by the jurisdiction under the laws of which such recipient is organized or
in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other
jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), any withholding tax that (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to any withholding tax
pursuant to Section 2.16(a) or (ii) is attributable to such Foreign
Lender’s failure to comply with Section 2.16(f).
“Existing
Credit Agreement” means the Amended and Restated Credit Agreement dated as
of July 25, 2006, among FCX, PTFI, the lenders party thereto, JPMCB, as
administrative agent, issuing bank, security agent, JAA security agent and
documentation agent and U.S. Bank Trust National Association, as FI trustee,
which amended and restated the Amended and Restated Credit Agreement dated
as of
September 30, 2003, which amended and restated the Amended and Restated Credit
Agreement dated as of October 19, 2001, which amended and restated both the
Credit
15
Agreement
originally dated as of October 27, 1989 and amended and restated as of June
1,
1993 and the Credit Agreement originally dated as of June 30, 1995.
“Existing
Indebtedness” means the indebtedness for borrowed money set forth on
Schedule 6.01.
“Existing
Letters of Credit” means the existing letters of credit issued under the PD
Credit Agreement or the Existing Credit Agreement and listed on Schedule
1.01B. The Borrower shall be deemed to have requested the issuance of
each Existing Letter of Credit for purposes hereof.
“Existing
Parent Credit Agreement” means the Credit Agreement dated as of March 19,
2007, among the Borrower, the lenders party thereto, the issuing banks party
thereto, and JPMCB, as administrative agent and as collateral agent, and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as syndication
agent.
“Existing
PD Obligations” means the Existing Indebtedness of PD set forth on Schedule
1.01F.
“Existing
Restated Credit Agreement” means the Existing Credit Agreement as amended
and restated as of the Effective Date.
“FCX”
means Freeport-McMoRan Copper & Gold Inc., a Delaware
corporation, and following any merger or consolidation permitted
under Section 6.03(a) to which FCX is a party and is not the surviving Person,
such surviving Person.
“FCX
Assisted PTFI Sale” means a Qualifying PTFI Sale Transaction in respect of
which FCX and/or PTFI may, at its option, provide an unsecured Guarantee in
accordance with the provisions of Section 6.01(a)(vii).
“Federal
Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day
by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average (rounded upwards, if necessary,
to the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
“FI
Obligations” means the “Obligations” as defined under the Restated Credit
Agreement.
“FI
Project” means the mining, concentrating and related operations conducted or
to be conducted by PTFI in Papua, Indonesia, pursuant to the Contract of
Work.
“FI
Trust Agreement” means the Restated Trust Agreement dated as of October 11,
1996, among PTFI, PT-Rio Tinto Indonesia, The Chase Manhattan Bank, as the
depositary, First Trust of New York, National Association, as FI trustee and
certain other creditors of PTFI.
“Financial
Covenants” means the covenants set forth in Sections 6.14 and
6.15.
16
“Financial
Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of FCX.
“Foreign
Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single
jurisdiction.
“Foreign
Pledge Agreement” means a pledge or charge agreement with respect to each
portion of the Collateral that constitutes Equity Interests of a Foreign
Subsidiary, in form and substance reasonably satisfactory to the Administrative
Agent.
“Foreign
Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or
the
District of Columbia.
“Funded
Debt” of any Person means Indebtedness of such Person of the types referred
to in clauses (a), (b), (c), (d), (e), (h), (j) and (k) of definition thereof
and all Indebtedness of the types referred to in clauses (f), (g) and (i) of
such definition relating to Indebtedness of others of the types referred to
in
such clauses (a), (b), (c), (d), (e), (h), (j) and (k).
“GAAP”
means generally accepted accounting principles in the United States of
America.
“Governmental
Authority” means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory
or
administrative powers or functions of or pertaining to government (including
any
supra-national bodies such as the European Union or the European Central
Bank).
“Guarantee”
of or by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the
“primary obligor”) in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof in each case for
the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or
any other financial statement condition or liquidity of the primary obligor
so
as to enable the primary obligor to pay such Indebtedness or other obligation
or
(d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided that
the term Guarantee shall not include endorsements for collection or deposit
in
the ordinary course of business.
“Hazardous
Materials” means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other
17
hazardous
or toxic substances or wastes of any nature regulated pursuant to any
Environmental Law.
“Hedging
Agreement” means any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest
or
currency exchange rate or commodity price hedging arrangement.
“Holdco”
means each of (a) O&C Holdco; and (b) each intermediate holding company
organized under the laws of the State of Delaware (or other jurisdiction
reasonably satisfactory to the Administrative Agent) for the purpose of holding
the Equity Interests of one or more Subsidiaries acquired or formed after the
Effective Date (A) the Equity Interests in which are owned by FCX or PD but
that
is neither a Permitted Pledgee nor a Subsidiary Guarantor and (B) which conducts
a material business or holds Equity Interests in a Subsidiary that (1) conducts
a material business, (2) is not a Permitted Guarantor and (3) not all the Equity
Interests in which are Collateral.
“IFC
Guidelines” means the International Finance Corporation (IFC) Safeguard
Policies, summarized and attached in Annex A to the ERM Report.
“Immaterial
Subsidiaries” means the Subsidiaries, the combined assets and revenues of
which, taken together with all the assets and revenues of their subsidiaries,
represent less than 5% of Consolidated Total Assets and less than 5% of
Consolidated Revenues.
“Incurrence
Test” means, as of any date in connection with any proposed transaction,
that immediately after giving effect to such transaction on a pro forma basis
as
if such transaction had occurred immediately prior to the first day of the
period of four consecutive fiscal quarters most recently ended in respect of
which financial statements have been delivered by FCX pursuant to Section 5.01,
(a) the Total Leverage Ratio on the last day of such period shall not exceed
5.0
to 1.0, and (b) the Total Secured Leverage Ratio on the last day of such period
shall not exceed 3.0 to 1.0. For purposes of the Incurrence Test,
Total Debt and Total Secured Debt shall be increased or reduced, as applicable,
to reflect all increases or decreases to the applicable Indebtedness following
the applicable period.
“Indebtedness”
of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all Disqualified Stock,
(d) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding trade accounts payable and other accrued expenses
incurred in the ordinary course of business and deferred compensation),
(f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured
by)
any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed (other than a Lien on Equity
Interests of an Unrestricted Subsidiary securing obligations of such
Unrestricted Subsidiary and its Subsidiaries), (g) all Guarantees by such
Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person, (i) all obligations, contingent or otherwise, of such Person as an
account party (including reimbursement obligations to the issuer) in respect
of
letters of credit and letters of guaranty, which support or secure Indebtedness,
(j) all obligations in respect of any Metalstream Transaction described
under clause (a) of the definition thereof, all obligations in respect of any
Receivables Facility and all other obligations in respect of prepaid production
arrangements, prepaid forward sale
18
arrangements
or derivative contracts in respect of which such Person receives upfront
payments in consideration of an obligation to deliver product or commodities
(or
make cash payments based on the value of product or commodities) at a future
time, and (k) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances; provided, however, that no series
of preferred stock other than Disqualified Stock shall in any event be deemed
to
be Indebtedness. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person’s ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person
is
not liable therefor. For purposes of determinations hereunder, the
amount of
|
(A)
|
any
Receivables Facility shall be deemed at any time to be (1) the aggregate
principal or stated amount of the Indebtedness, fractional undivided
interests (which stated amount may be described as a “net investment” or
similar term reflecting the amount invested in such undivided interest)
or
other securities incurred or issued pursuant to such Permitted
Securitization, in each case outstanding at such time, or (2) in
the case
of any Permitted Securitization in respect of which no such Indebtedness,
fractional undivided interests or securities are incurred or issued,
the
cash purchase price paid by the buyer in connection with its purchase
of
Receivables less the amount of collections received in respect of
such
Receivables and paid to such buyer, excluding any amounts applied
to
purchase fees or discount or in the nature of interest;
and
|
|
(B)
|
any
other transaction of any Person included under clause (j) above,
at any
time, (1) the amount thereof that would appear on a balance sheet
of such
Person prepared as of such date in accordance with GAAP or (2) if
such amount would not appear on such balance sheet, the amount that
would
appear on a balance sheet of such Person prepared as of such date
in
accordance with GAAP if such transaction were accounted for as a
transaction that would appear on such balance sheet or (3) if such
amount
cannot be determined under clause (1) or (2), the amount reasonably
agreed
by FCX and the Administrative
Agent.
|
“Indemnified
Taxes” means Taxes other than Excluded Taxes.
“Indonesian
Subsidiary” means PTFI, PTII and each other Subsidiary that is organized
under the laws of Indonesia.
“Interest
Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing or Term Borrowing in accordance with
Section 2.06.
“Interest
Payment Date” means (a) with respect to any ABR Loan (including a
Swingline Loan), the last day of each March, June, September and December and
(b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the
case
of a Eurodollar Borrowing with an Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs
at
intervals of three months’ duration after the first day of such Interest
Period.
“Interest
Period” means, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three, six or, to
the extent made
19
available
by all the applicable Lenders, nine or twelve, months thereafter, as the
Borrower may elect; provided that (a) if any Interest Period would
end on a day other than a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day, (b) any Interest Period that
commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month
of such Interest Period, and (c) the initial Interest Period in respect of
any
Term Loans made on the Amendment Effective Date shall be the period commencing
on the Amendment Effective Date and ending on the last Business Day of July
2007. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and thereafter shall be the effective
date of the most recent conversion or continuation of such
Borrowing.
“International
Support Inc.” means International Support Inc., a corporation organized
under the laws of Delaware and a wholly owned subsidiary of FCX.
“Investment”
means purchasing, holding or acquiring (including pursuant to any merger with
any Person that was not a Wholly Owned Subsidiary prior to such merger) any
Equity Interests, evidences of indebtedness or other securities (including
any
option, warrant or other right to acquire any of the foregoing) of, or making
or
permitting to exist any capital contribution or loans or advances to,
guaranteeing any obligations of, or making or permitting to exist any investment
in, any other Person, or purchasing or otherwise acquiring (in one transaction
or a series of transactions) any assets of any Person constituting a business
unit. The amount, as of any date of determination, of any Investment
shall be the original cost of such Investment (including any Indebtedness of
a
Person existing at the time such Person becomes a Subsidiary in connection
with
any Investment and any Indebtedness assumed in connection with any acquisition
of assets), plus the cost of all additions, as of such date, thereto and
minus the amount, as of such date, of any portion of such Investment
repaid to the investor in cash as a repayment of principal or a return of
capital, as the case may be, but without any other adjustments for increases
or
decreases in value, or write-ups, write-downs or write-offs with respect to
such
Investment. In determining the amount of any Investment involving a
transfer of any property other than cash, such property shall be valued at
its
fair market value at the time of such transfer.
“Issuing
Bank” means each of JPMCB and each other Lender acceptable to the
Administrative Agent and the Borrower that has entered into an Issuing Bank
Agreement, in each case in its capacity as an issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in Section 2.05(i);
provided that no Person shall at any time become an Issuing Bank if after
giving effect thereto there would at such time be more than 5 Issuing
Banks. Each Issuing Bank may, in its discretion but with the consent
of the Borrower, arrange for one or more Letters of Credit to be issued by
Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
“Issuing
Bank Agreement” means an agreement in the form of Exhibit C, or in any other
form reasonably satisfactory to the Administrative Agent, pursuant to which
a
Lender agrees to act as an Issuing Bank.
“JPMCB”
has the meaning assigned to such term in the preamble to this
Agreement.
20
“LC
Disbursement” means a payment made by an Issuing Bank pursuant to a Letter
of Credit.
“LC
Exposure” means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed
by or
on behalf of the Borrower at such time. The LC Exposure of any Lender
at any time shall be its Applicable Percentage of the total LC Exposure at
such
time.
“Lender
Affiliate” means (a) with respect to any Lender, (i) an Affiliate
of such Lender or (ii) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate
of
such Lender and (b) with respect to any Lender that is a fund which invests
in bank loans and similar extensions of credit, any other fund that invests
in
bank loans and similar extensions of credit and is managed by the same
investment advisor as such Lender or by an Affiliate of such investment
advisor.
“Lenders”
means the Persons listed on Schedule 2.01 and any other Person that shall
have become a lender hereunder pursuant to an Assignment and Assumption other
than any person that ceases to be a party hereto pursuant to an Assignment
and
Assumption. Unless the context otherwise requires, the term “Lenders”
includes the Swingline Lender.
“Letter
of Credit” means (i) any letter of credit issued pursuant to this
Agreement and (ii) the Existing Letters of Credit.
“LIBO
Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, the rate appearing on the Reuters “LIBOR01” screen displaying British
Bankers’ Association Interest Settlement Rates (or on any successor or
substitute page for such screen, or any successor to or substitute for such
service, providing rate quotations comparable to those currently provided on
such screen, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar deposits
in the London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate
for
dollar deposits with a maturity comparable to such Interest
Period. In the case of the initial Interest Period for Term
Borrowings, and in the event that such rate is not available at the time of
determination for any other Interest Period for any reason, then the “LIBO
Rate” with respect to such Eurodollar Borrowing for such Interest Period
shall be the rate at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office
of
the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period.
“Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of
such asset, and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or
any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
“Loan
Documents” means this Agreement, the Amendment Agreement, the Collateral
Agreement and the other Security Documents.
21
“Loan
Parties” means FCX and each Subsidiary Guarantor.
“Loans”
means the loans made by the Lenders to the Borrower pursuant to this
Agreement. Loans made under the Amendment Agreement shall be deemed
to have been made hereunder.
“Long-Term
Indebtedness” means any Indebtedness (excluding Indebtedness permitted by
Section 6.01(a)(iii)) that, in accordance with GAAP, constitutes (or, when
incurred, constituted) a long-term liability.
“Material
Adverse Effect” means a material adverse effect on (a) the business,
operations or financial condition of the Borrower and its Restricted
Subsidiaries, taken as a whole, (b) the ability of any Loan Party to
perform its obligations under any Loan Document or (c) the rights of or
benefits available to the Lenders under the Loan Documents.
“Material
Company” has the meaning assigned to such term in clause (g) of Article
VII.
“Material
Indebtedness” means Indebtedness (other than the Loans and Letters of Credit
and Indebtedness under the Restated Credit Agreement), Project Financings or
obligations in respect of one or more Hedging Agreements, of the Borrower and/or
any Restricted Subsidiary in an aggregate principal amount or amount of
Attributable Debt exceeding $100,000,000. For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of the Borrower
or any Restricted Subsidiary in respect of any Hedging Agreement at any time
shall be the aggregate amount (giving effect to any netting agreements) that
the
Borrower or such Restricted Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
“Material
US Property” means each parcel of real property and the improvements thereto
owned by a Loan Party and identified on Schedule 1.01D.
“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.
“Metalstream
Transaction” means (a) a transaction in which the Borrower or any Restricted
Subsidiary incurs obligations in respect of prepaid production arrangements,
prepaid forward sale arrangements or derivative contracts in respect of which
the Borrower or any such Restricted Subsidiary receives upfront payments in
consideration of an obligation to deliver gold, copper or any other metal mined
by the Borrower and its Restricted Subsidiaries (each, a “Qualified
Metal”) (or make cash payments based on the value of any Qualified Metal) at
a future time or (b) a transaction in which the Borrower issues Equity Interests
(other than Disqualified Stock) providing for dividends based on the price
of
any Qualified Metal or otherwise designed to track the price of any Qualified
Metal and/or the Borrower’s production of any Qualified Metal. For the avoidance
of doubt, a Metalstream Transaction described under clause (a) shall for all
purposes hereof constitute Indebtedness and Funded Debt and a Metalstream
Transaction described under clause (b) hereof shall for all purposes hereof
constitute Equity Interests and the Net Proceeds thereof shall constitute Equity
Proceeds.
“Moody’s”
means Xxxxx’x Investors Service, Inc.
22
“Morenci
Business” has the meaning assigned to such term in Section
6.03(d).
“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Net
Proceeds” means, with respect to any event (a) the cash proceeds
received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in
the case of a casualty, insurance proceeds, and (iii) in the case of a
condemnation or similar event, condemnation awards and similar payments, net
of
(b) the sum of (i) all fees and out-of-pocket expenses paid by the
Borrower or any Restricted Subsidiary to third parties in connection with such
event, (ii) in the case of a sale, transfer or other disposition of an
asset (including pursuant to a sale and leaseback transaction or a casualty
or a
condemnation or similar proceeding), (A) the amount of all payments required
to
be made by the Borrower or any Restricted Subsidiary as a result of such event
to repay Indebtedness (other than Loans) secured by such asset or otherwise
subject to mandatory prepayment as a result of such event and (B) if such sale,
transfer or other disposition includes the sale of one or more operating
businesses, divisions or operating units, the amount of all liabilities,
including accounts payable, directly arising from the operations of such
business, division or operating unit that are retained by the Borrower and
the
Restricted Subsidiaries, (iii) the amount of all taxes paid (or reasonably
estimated to be payable) (including, in the case of any such event in respect
of
any Foreign Subsidiary, taxes payable upon the repatriation of such proceeds
to
the United States) by the Borrower and the Restricted Subsidiaries, and (without
duplication for the amount of any liability netted under clause (ii)(B) above)
the amount of any reserves established by the Borrower and the Restricted
Subsidiaries to fund contingent liabilities reasonably estimated to be payable,
in each case during the year that such event occurred or the next succeeding
year and that are directly attributable to such event (as determined reasonably
and in good faith by the chief financial officer of the Borrower), and (iv)
in
the case of any such proceeds received by a Subsidiary that is not a Wholly
Owned Subsidiary, the portion of such proceeds attributable to the minority
interests in such Subsidiary.
“Non-Recourse
Indebtedness” means, with respect to any Person and its assets, Indebtedness
the obligees of which will not have, directly or indirectly, recourse (including
by way of any Guarantee or other undertaking, agreement or instrument that
would
constitute Indebtedness) for repayment of any principal, premium (if any),
or
interest on such Indebtedness or any fees, indemnities, expense reimbursements
or other amounts of whatever nature accrued or payable in connection with such
Indebtedness against any assets of such Person other than pursuant to any pledge
of specified assets of such Person and other than a completion Guarantee by
FCX
provided under Section 6.01(a)(xi).
“O&C
Holdco” means PD Chile Finance Company, a Delaware corporation.
“Obligations”
means the obligations of the Borrower hereunder and of the Borrower and the
other Loan Parties under the other Loan Documents, including, without
limitation, (a) the due and punctual payment by the Borrower of (i) the
principal of and interest (including interest accruing during the pendency
of
any bankruptcy, insolvency, receivership or similar proceeding, regardless
of
whether allowed or allowable in such proceeding) on the Loans, when and as
due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) each payment required to be made under this Agreement in
respect of any Letter of Credit, when and as due, including
23
payments
in respect of reimbursement of disbursements, interest thereon, and any
obligation to provide cash collateral, and (iii) all other monetary obligations
of the Borrower under this Agreement or any other Loan Document, including
in
respect of fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including any monetary obligations
incurred during the pendency of any bankruptcy, insolvency, receivership or
similar proceeding, regardless of whether allowed or allowable in such
proceeding), (b) the due and punctual performance of all other obligations
of
the Borrower under or pursuant to this Agreement and each other Loan Document,
and (c) the due and punctual payment and performance of all of the obligations
of each other Loan Party under or pursuant to each of the other Loan
Documents.
“Other
Taxes” means any and all present or future recording, stamp, documentary,
excise, transfer, sales, property or similar taxes, charges or levies arising
from any payment made under any Loan Document or from the execution, delivery
or
enforcement of, or otherwise with respect to, any Loan Document.
“parent”
has the meaning assigned thereto in the definition of “subsidiary”.
“Participant”
has the meaning set forth in Section 9.04(c).
“Participation
Agreement” means the Participation Agreement dated October 11, 1996
between PTFI and PT-Rio Tinto Indonesia, as amended by the First Amendment
dated
April 30, 1999.
“Patriot
Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of
Pub. L. No. 107-56 (signed into law October 26, 2001)).
“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
“PD”
means Xxxxxx Dodge Corporation, a New York corporation.
“PD
Credit Agreement” means the Credit Agreement dated as of April 20, 2004, as
amended, among PD, the lenders party thereto and Citibank, N.A., as
administrative agent.
“Perfection
Certificate” means the perfection certificate executed by the Borrower
substantially in the form of Exhibit B.
“Permitted
Encumbrances” means:
(a)
Liens
for taxes, assessments and other governmental charges or levies not at the
time
delinquent or which are being contested in compliance with Section 5.05 or
secure amounts that are not material to the value of the properties to which
such Liens attach (it being understood that for purposes of this paragraph
(a)
all the Material US Properties that would have been covered by a single mortgage
pursuant to the Additional Collateral Requirement under the Existing Parent
Credit Agreement shall be deemed to be a single real property);
(b)
Liens
imposed by law, including landlords’, carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s and other like Liens
24
imposed
by law, arising in the ordinary course of business and securing obligations
that
are not overdue by more than 30 days or are being contested in compliance with
Section 5.05 or secure amounts that are not material to the value of the
properties to which such Liens attach (it being understood that for purposes
of
this paragraph (b) all the Material US Properties that would have been covered
by a single mortgage pursuant to the Additional Collateral Requirement under
the
Existing Parent Credit Agreement shall be deemed to be a single real
property);
(c)
pledges, deposits or Liens under workmen’s compensation laws, unemployment
insurance laws, social security laws or similar legislation, or insurance
related obligations (including pledges or deposits securing liability to
insurance carriers under insurance or self-insurance arrangements), or in
connection with bids, tenders, contracts (other than for borrowed money) or
leases, or to secure utilities, licenses, public or statutory obligations,
or to
secure surety, indemnity, judgment, appeal or performance bonds, guarantees
of
government contracts (or other similar bonds, instruments or obligations),
or as
security for contested taxes or import or customs duties or for the payment
of
rent, or other obligations of like nature, in each case incurred in the ordinary
course of business;
(d)
judgment liens in respect of judgments that do not constitute an Event of
Default under clause (j) of Article VII;
(e)
Liens
in favor of issuers of surety, performance or other bonds, guarantees or letters
of credit or bankers’ acceptances (not issued to support Indebtedness or
Attributable Debt) issued pursuant to the request of and for the account of
the
Borrower or any Restricted Subsidiary in the ordinary course of its
business;
(f)
encumbrances, ground leases, easements (including reciprocal easement
agreements), survey exceptions, or reservations of, or rights of others for,
licenses, rights of way, sewers, canals, ditches, water rights, highways, roads,
railroads, fences, oil and gas leases, electric lines, data communications,
and
telephone lines and other similar purposes, or zoning, building codes or other
restrictions (including minor defects or irregularities in title and similar
encumbrances) as to the use of the real properties or Liens incidental to the
conduct of the business of the Borrower and its Restricted Subsidiaries or
to
the ownership of its properties which do not in the aggregate materially
adversely affect the value of said properties or materially impair their use
in
the operation of the business of the Borrower and its Restricted Subsidiaries
(it being understood that for purposes of this paragraph (f) all the Material
US
Properties that would have been covered by a single mortgage pursuant to the
Additional Collateral Requirement under the Existing Parent Credit Agreement
shall be deemed to be a single real property);
(g)
contractual Liens which arise in the ordinary course of business under operating
agreements, joint venture agreements, partnership agreements, leases, area
of
mutual interest agreements, royalty agreements, marketing agreements, processing
agreements, development agreements, and other agreements which are usual and
customary in the mining business;
(h)
leases, licenses, subleases and sublicenses of assets (including real property
and intellectual property rights), in each case entered into in the ordinary
course of business;
25
(i)
Liens
arising by virtue of any statutory or common law provisions relating to banker’s
Liens, rights of set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a depositary or financial
institution;
(j)
Liens
arising from Uniform Commercial Code financing statement filings (or similar
filings in other applicable jurisdictions) regarding operating leases entered
into by the Borrower and its Restricted Subsidiaries in the ordinary course
of
business;
(k)
any
interest or title of a lessor under any operating lease;
(l)
(i)
mortgages, liens, security interests, restrictions, encumbrances or any other
matters of record that have been placed by any government, statutory or
regulatory authority, developer, landlord or other third party on property
over
which the Borrower or any Restricted Subsidiary has easement rights or on any
leased property and subordination or similar arrangements relating thereto
and
(ii) any condemnation or eminent domain proceedings affecting any real
property;
(m)
any
encumbrance or restriction (including put and call arrangements) with respect
to
Equity Interests of any joint venture or similar arrangement pursuant to any
joint venture or similar agreement;
(n)
Liens
on property or assets under construction (and related rights) in favor of a
contractor or developer or arising from progress or partial payments by a third
party relating to such property or assets;
(o)
Liens
securing or arising by reason of any netting or set-off arrangement entered
into
in the ordinary course of banking or other trading activities or Liens over
cash
accounts securing cash pooling arrangements; and
(p)
Liens
arising out of conditional sale, title retention, hire purchase, consignment
or
similar arrangements for the sale of goods entered into in the ordinary course
of business;
provided
that, except for Permitted Encumbrances referred to in clause (e) above, the
term “Permitted Encumbrances” shall not include any Lien securing Indebtedness
or Attributable Debt.
“Permitted
Guarantors” means, at any time, PTII and each Wholly Owned Subsidiary, other
than (i) any Indonesian Subsidiary (other than PTII), (ii) CFCs and (iii)
Subsidiaries that are precluded from providing a Guarantee by the terms of
their
organizational documents (including shareholders and similar agreements) or
Project Financing Documents.
“Permitted
Investments” means:
(a)
direct obligations of, or obligations the principal of and interest on which
are
unconditionally guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full faith and credit
of the United States of America), in each case maturing within one year from
the
date of acquisition thereof;
26
(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 Xxxxx’x of P-2 or higher;
(c)
Investments in certificates of deposit, banker’s acceptances and time deposits
maturing within one year after the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any commercial bank which has a short term deposit rating issued
by
Xxxxx’x of P 2 or higher or by S&P of A-2 or higher;
(d)
short-term tax exempt securities rated not lower than MIG-1/+1 by either Xxxxx’x
or S&P with provisions for liquidity or maturity accommodations of 183 days
or less;
(e)
repurchase agreements relating to securities described in clause (a), (b),
(c)
and (d) above and maturity not less than one year thereafter;
(f)
Investments in money market or similar funds not less than 95% of the assets
of
which are comprised of assets of the types described in clause (a), (b), (c),
(d) and (e) above; and
(g)
in
the case of any Subsidiary organized or having its principal place of business
outside the United States, investments denominated in the currency of the
jurisdiction in which such Subsidiary is organized or has its principal place
of
business which are similar to the assets referred to in clauses (a), (b), (c),
(d), (e) and (f) above.
“Permitted
Pledgee” means, at any time, each directly owned Restricted Subsidiary of
any Loan Party (or of any other Restricted Subsidiary (other than a CFC) that
is
not a Loan Party but is not precluded from pledging Equity Interests) and each
subsequently acquired or organized subsidiary of the Borrower or any Guarantor
(or such a non-Guarantor), other than (i) any Indonesian Subsidiary and (ii)
subsidiaries the Equity Interests in which are precluded from being pledged
by
the terms of their issuer’s (or such issuer’s subsidiary’s) organizational
documents (including shareholders and similar agreements) or by applicable
Project Financing Documents.
“Permitted
Refinancing” means, with respect to any Indebtedness or Attributable Debt,
any extensions, renewals and replacements of such Indebtedness or Attributable
Debt that (a) do not constitute Indebtedness or Attributable Debt of an obligor
that was not an obligor with respect to the Indebtedness or Attributable Debt
being extended, renewed or replaced (or result in Non-Recourse Indebtedness
ceasing to be Non-Recourse Indebtedness), (b) do not increase the outstanding
principal amount thereof by more than the sum of all accrued and unpaid interest
thereon at the time of such extension, renewal or replacement and any fees
or
premiums paid in connection with such extension, renewal or replacement, (c)
do
not result in an earlier maturity date that is prior to the date six months
after the Tranche A Maturity Date or decreased weighted average life thereof
and
(d) are not secured by Liens on any assets other than the assets that secured
the Indebtedness or Attributable Debt extended, renewed or replaced,
provided that any such extending, renewing or replacing Indebtedness in
respect of the Atlantic Copper Financing may be in an aggregate principal amount
not to exceed $175,000,000.
“Permitted
Secured Hedge” means any Hedging Agreement between FCX or any Restricted
Subsidiary (a) if entered into prior to the Effective Date, with a
27
counterparty
that is a Lender (or Affiliate of a Lender) under this Agreement or the Restated
Credit Agreement on the Effective Date or (b) if entered into on or after the
Effective Date, with a counterparty that is a Lender or Affiliate of a Lender
under this Agreement or the Restated Credit Agreement at the time such Hedging
Agreement is entered into.
“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
“Plan”
means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the
Code or Section 302 of ERISA, and in respect of which the Borrower or any
ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.
“Prime
Rate” means the rate of interest per annum publicly announced from time to
time by JPMorgan Chase Bank, N.A., as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being
effective.
“Principal
Issuing Bank” means JPMCB and any other Issuing Bank whom the Borrower and
the Administrative Agent agree will be a Principal Issuing Bank (or any of
their
Affiliates that shall act as Issuing Banks hereunder).
“Project
Financing” means Indebtedness or a sale leaseback of assets of a Subsidiary
the proceeds of which are applied to fund new acquisition, exploration,
development or expansion by, or upgrades of the assets of, such Subsidiary
that
is secured by the assets of such Subsidiary or the incurrence of Attributable
Debt in connection with a sale and leaseback transaction involving such assets;
provided that “Project Financing” shall not include any
Indebtedness or Attributable Debt the proceeds of which are applied to acquire
a
going concern.
“Project
Financing Assets” means, with respect to any Project
Financing, the assets of the new acquisition, exploration,
development or expansion, or the assets the upgrade of which is, funded by
such
Project Financing.
“Project
Financing Documents” means each of the operative documents relating to any
Project Financing, including asset purchase agreements, lease agreements, joint
venture agreements, guarantee agreements and participation agreements, to which
FCX, PTFI or any Restricted Subsidiary is a party.
“Project
Financing Subsidiary” means, with respect to any Project Financing, the
Subsidiary that is the primary obligor in respect of such Project
Financing.
“Proscribed
Consolidation” has the meaning assigned to such term in Section
6.03(a).
“PTFI”
means PT Freeport Indonesia, a limited liability company organized under the
laws of the Republic of Indonesia and domesticated under the laws of Delaware
as
a corporation.
“PTFI
Shares” means capital stock of PTFI.
28
“PTII”
means PT Indocopper Investama Tbk, a corporation organized under the laws of
Indonesia.
“PTII
Shares” means capital stock of PTII.
“PT-Rio
Tinto Indonesia” means PT Rio Tinto Indonesia (formerly P.T. RTZ-CRA
Indonesia), a limited liability company organized under the laws of Indonesia
and a wholly owned subsidiary of RTZ.
“PT-Rio
Tinto Indonesia COW Assignment” means the Assignment Agreement dated as of
October 11, 1996 between PTFI and PT-Rio Tinto Indonesia pursuant to which
PTFI
assigned a partial undivided interest in the Contract of Work to PT-Rio Tinto
Indonesia.
“Purchasing
Card Program” means a Purchasing Card Program established for FCX by a
Revolving Lender, a “Lender” under the Restated Credit Agreement or an Affiliate
of a Revolving Lender or such a “Lender”, pursuant to which such Revolving
Lender, “Lender” or Affiliate issues Purchasing Cards to employees and other
accounts of FCX or any Restricted Subsidiary, with an aggregate credit limit
not
to exceed $10,000,000 (including, without limitation, for purchases made in
foreign currencies and converted into U.S. dollars).
“Qualified
Stock” means, with respect to any Person, any Equity Interests of such
Person that are not Disqualified Stock.
“Qualifying
PTFI Sale Transaction” means (a) one or more sales of the PTII Shares and/or
of shares of PTFI which are owned by the Borrower or owned by PTII or (b) the
issuance from time to time by PTFI of shares of PTFI (in each case, the
“Transferred Shares”) which in the case of clause (a) and clause (b)
satisfies the following requirements:
(i)
the
aggregate amount of shares of capital stock of PTFI which are, directly or
indirectly, sold, issued or transferred in such transaction does not exceed
9.36% of the outstanding shares of capital stock of PTFI (shares of PTFI owned
by PTII being deemed transferred for purposes of the foregoing in the same
proportion as the number of PTII Shares that are sold or transferred bears
to
the total number of PTII Shares immediately prior to such Qualifying PTFI Sale
Transaction);
(ii)
such
sale or issuance is made for fair market value to a Governmental Authority
of
the Republic of Indonesia (including a regional Governmental Authority), an
investment vehicle majority owned and Controlled by such a Governmental
Authority and/or Indonesian citizens or legal entities organized under the
laws
of Indonesia that are Controlled by Indonesian citizens, in each case which
qualifies as an “Indonesian National” within the meaning of Article 24(2) of the
Contract of Work and which is not an Affiliate of FCX;
(iii)
the
consideration for such sale or issuance consists of cash, a promissory note
or a
combination of cash and a promissory note; provided that any such promissory
note shall be secured by, and payable with any dividends, distributions or
proceeds on or in respect of, all the Transferred Shares (which promissory
note
may be nonrecourse to any such Governmental Authority);
29
(iv)
to
the extent payable to the Borrower, any such promissory note and all proceeds
thereof are pledged at the time any such sale is consummated to the
Administrative Agent, for the benefit of the Secured Parties, pursuant to the
Collateral Agreement or other pledge arrangements satisfactory to the
Administrative Agent; and
(v)
the
Administrative Agent shall have received such favorable opinions of outside
counsel to the Borrower as it may reasonably request in connection with the
foregoing.
“Ratable
Obligations” means the Existing Indebtedness of FCX set forth on Schedule
1.01C. A “Ratable Guarantee” shall mean a Guarantee of the
Ratable Obligations provided by a Loan Party specified on Schedule 1.01C in
the
column titled “Ratable Guarantees”. A “Ratable Lien” shall
mean a Lien securing the Ratable Obligations created under a Loan Document
encumbering assets specified on Schedule 1.01C in the column titled “Ratable
Liens”.
“Receivables
Facility” means any of one or more receivables financing facilities, as
amended, supplemented, modified, extended, renewed, restated, refunded, replaced
or refinanced from time to time, the Indebtedness of which is non-recourse
(except for Standard Receivables Facility Undertakings) to the Borrower or
any
Restricted Subsidiary (other than any Receivables Subsidiary), pursuant to
which
the Borrower or any of the Restricted Subsidiaries sells its accounts, payment
intangibles and related assets or interests therein to either (a) a Person
that
is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn
sells its accounts, payment intangibles and related assets to a Person that
is
not a Restricted Subsidiary.
“Receivables
Facility Repurchase Obligation” means any obligation of the Borrower or a
Restricted Subsidiary that is a seller of assets in a Receivables Facility
to
repurchase the assets it sold thereunder as a result of a breach of a
representation, warranty or covenant or otherwise, including as a result of
a
receivable or portion thereof becoming subject to any asserted defense, dispute,
offset or counterclaim of any kind as a result of any action taken by, any
failure to take action by or any other event relating to the
seller.
“Receivables
Subsidiary” means any Subsidiary formed solely for the purpose of engaging,
and that engages only, in one or more Receivables Facilities.
“Related
Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents, trustees
and advisors of such Person and such Person’s Affiliates.
“Required
Lenders” means, at any time, Lenders having Revolving Exposures, Term Loans
and unused Commitments (other than Swingline Commitments) representing more
than
50% of the aggregate Revolving Exposures, outstanding Term Loans and unused
Commitments (other than Swingline Commitments) at such time.
“Required
Revolving Lenders” means, at any time, Revolving Lenders having Revolving
Exposures and unused Revolving Commitments representing more than 50% of the
aggregate Revolving Exposures and unused Revolving Commitments at such
time.
“Restated
Credit Agreement” means the Existing Restated Credit Agreement as amended
and restated as of the Amendment Effective Date.
30
“Restricted
Indebtedness” means any Indebtedness of the Borrower or any Restricted
Subsidiary, the payment, prepayment, redemption, repurchase or defeasance of
which is restricted under Section 6.08.
“Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the
Borrower or any Restricted Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests (including any payment under a Synthetic
Purchase Agreement related to any Equity Interests) in the Borrower or any
option, warrant or other right to acquire any such Equity Interests in the
Borrower.
“Restricted
Subsidiary” means, at any time (a) PD, (b) PTFI and (c) each other
Subsidiary of FCX that is not at such time an Unrestricted
Subsidiary. As of the Amendment Effective Date, all the Subsidiaries
are Restricted Subsidiaries.
“Restricted
Uses” means, as of any date, determined in each case for the period
commencing on the Effective Date and ending on the date of determination based
on the provisions of this Agreement or the Existing Parent Credit Agreement,
as
applicable, (a) the portion of the Unrestricted Subsidiary Investment Amount
that constituted Restricted Uses at the time of the applicable Investment or
Designation (it being understood that reductions to the Unrestricted Subsidiary
Investment Amount under clause (d) of the definition thereof shall be allocated
to reduce Restricted Uses until the Unrestricted Subsidiary Investment Amount
is
reduced to 1% of Consolidated Total Assets); plus (b) the aggregate
cumulative amount of all Restricted Payments made pursuant to Section
6.08(a)(iv) and, to the extent expressly applied to the Restricted Uses Basket
thereunder, Section 6.08(a)(iii); plus (c) the aggregate amount of
payments of Indebtedness made pursuant to Section 6.08(b)(vii); plus (d)
the aggregate amount of Equity Proceeds applied to prepay Loans after the
Effective Date under Section 2.10(c) of the Existing Parent Credit Agreement;
plus (e) for (i) each Synthetic Purchase Agreement that is outstanding,
the amount of payments made thereunder on or prior to the time of determination
plus the maximum amount of payments that may thereafter may be required to
be
made by FCX or any Restricted Subsidiary during the term of such Synthetic
Purchase Agreement (determined for each Synthetic Purchase Agreement on the
date
upon which it is entered into and adjusted on each date upon which it is
modified) and (ii) each Synthetic Purchase Agreement that has terminated and
under which no further payment obligations exist, the amount of payments made
thereunder during the term thereof.
“Restricted
Uses Basket” means, at any time, determined in each case for the period
commencing on the Effective Date and ending on the date of determination based
on the provisions of this Agreement or the Existing Parent Credit Agreement,
as
applicable, the sum at such time of (a) $500,000,000; plus (b) 50% of
cumulative Consolidated Adjusted Net Income (net of any negative amounts) for
each fiscal quarter for which financial statements shall have been delivered
pursuant to Section 5.01(a) or (b) (commencing with the fiscal quarter ending
March 31, 2007); plus (c) Equity Proceeds received after the Effective
Date; plus (d) the amount by which Indebtedness of FCX or its Restricted
Subsidiaries is reduced on FCX’s balance sheet upon the conversion or exchange
(other than by a Subsidiary) subsequent to the Effective Date of any
Indebtedness of FCX or its Restricted Subsidiaries which is convertible or
exchangeable for Equity Interests (other than Disqualified Stock) of FCX (less
the amount of any cash or the fair market value of other property distributed
by
FCX or any Restricted Subsidiary upon such conversion or exchange).
31
“Revolving
Availability Period” means the period from and including the Amendment
Effective Date to but excluding the earlier of the Revolving Maturity Date
and
the date of termination of the Revolving Commitments.
“Revolving
Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans and to acquire participations in Letters
of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum possible aggregate amount of such Lender’s Revolving Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section
2.07
and (b) reduced or increased from time to time pursuant to assignments by or
to
such Lender pursuant to Section 9.04. The initial amount of each
Lender’s Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed
its
Revolving Commitment, as the case may be. The initial aggregate
amount of the Lenders’ Revolving Commitments is $1,000,000,000.
“Revolving
Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s Revolving Loans and its LC
Exposure and Swingline Exposure at such time.
“Revolving
Lender” means a Lender with a Revolving Commitment or, if the Revolving
Commitments have terminated or expired, a Lender with Revolving
Exposure.
“Revolving
Loan” means a Loan made pursuant to clause (c) of Section 2.01.
“Revolving
Maturity Date” means March 19, 2012.
“RS
Designation” has the meaning assigned to such term in Section
6.13(b).
“RTZ”
means Rio Tinto plc (formerly RTZ Corporation PLC), a company organized under
the laws of England.
“RTZ
Interests” means the interests of PT-Rio Tinto Indonesia in the Contract of
Work and certain jointly held assets pursuant to the Participation Agreement
and
in the Concentrate Sales Agreements of PTFI pursuant to the FI Trust
Agreement.
“S&P”
means Standard & Poor’s.
“Secured
Obligations” means (a) the Obligations, (b) the due and punctual payment and
performance of all obligations of the Borrower or any Restricted Subsidiary
under each Permitted Secured Hedge, (c) the due and punctual payment and
performance of all obligations owed from time to time by the Borrower or any
Restricted Subsidiary to JPMCB, a Lender under this Agreement or the Restated
Credit Agreement or any of their Affiliates in respect of cash management
services provided to the Borrower or any Restricted Subsidiary and (d) the
due
and punctual payment and performance of all obligations owed from time to time
by the Borrower or any Restricted Subsidiary to Revolving Lenders, “Lenders”
under the Restated Credit Agreement or Affiliates thereof in respect of any
Purchasing Card Program, in each case including obligations in respect of
overdrafts, temporary advances, interest and fees.
32
“Secured
Parties” means the Administrative Agent, the Issuing Banks, the Collateral
Agent, the Security Agent, the Syndication Agent, the Lenders, each counterparty
to a Permitted Secured Hedge, any Lender or any of their Affiliates providing
cash management services to FCX or any Restricted Subsidiary, or any Revolving
Lender, any “Lender” under the Restated Credit Agreement or any of their
Affiliates providing any Purchasing Card Program to FCX or any Restricted
Subsidiary, and the successors and assigns of the foregoing.
“Security
Agent” means JPMCB, not in its individual capacity, but as Security Agent
for the lenders under the Restated Credit Agreement.
“Security
Documents” means the Collateral Agreement, the Foreign Pledge Agreements,
the Affiliate Subordination Agreement, each control agreement delivered pursuant
to the Collateral Agreement and each other security agreement or other
instrument or document executed and delivered pursuant to Section 5.12 or
5.13 to secure any of the Obligations.
“Senior
Notes” means (a) the $6,000,000,000 aggregate principal amount of unsecured
senior notes due 2015 and unsecured senior notes due 2017 issued by the Borrower
on the Effective Date in a public offering or in a Rule 144A or other private
placement and (b) any substantially identical senior notes that are registered
under the Securities Act of 1933, as amended, and issued in exchange for the
senior notes described in clause (a) of this definition.
“Senior
Notes Documents” means the indenture under which the Senior Notes are issued
and all other instruments, agreements and other documents evidencing or
governing the Senior Notes, providing for any Guarantee or other right in
respect thereof, affecting the terms of the foregoing or entered into in
connection therewith and all schedules, exhibits and annexes to each of the
foregoing.
“Significant
Subsidiary” means any Subsidiary of the Borrower that satisfies the criteria
for a “significant subsidiary” set forth in Rule 1.02(w) of Regulation S-X under
the Securities Exchange Act of 1934, as amended.
“Standard
Receivables Facility Undertakings” means representations, warranties,
covenants and indemnities entered into by the Borrower or any Restricted
Subsidiary that the Borrower has determined in good faith to be customary in
financings similar to a Receivables Facility, including, without limitation,
those relating to the servicing of the assets of a Receivables Facility
Subsidiary, it being understood that any Receivables Facility Repurchase
Obligation shall be deemed to be a Standard Receivables Facility
Undertaking.
“subsidiary”
means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity
the accounts of which would be consolidated with those of the parent in the
parent’s consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50%
of
the ordinary voting power or, in the case of a partnership, more than 50% of
the
equity or more than 50% of the general partnership interests are, as of such
date, owned, Controlled or held by the parent or one or more subsidiaries of
the
parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary”
means any subsidiary of the Borrower.
33
“Subsidiary
Guarantor” means each Subsidiary that Guarantees the Secured Obligations
under a Loan Document.
“Swingline
Commitment” means the commitment of the Swingline Lender to make Swingline
Loans.
“Swingline
Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of
any Lender at any time shall be its Applicable Percentage of the Swingline
Exposure at such time.
“Swingline
Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder.
“Swingline
Loan” means a Loan made pursuant to Section 2.19.
“Syndication
Agent” means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, in its
capacity as syndication agent for the Lenders hereunder.
“Synthetic
Purchase Agreement” means any swap, derivative or other agreement or
combination of agreements pursuant to which the Borrower or any Restricted
Subsidiary is or may become obligated to make (i) any payment in connection
with a purchase by any third party from a Person other than the Borrower or
any
Restricted Subsidiary of any Equity Interest or Restricted Indebtedness or
(ii) any payment (other than on account of a permitted purchase by it of
any Equity Interest or any Restricted Indebtedness) the amount of which is
determined by reference to the price or value at any time of any Equity Interest
or Restricted Indebtedness; provided that no phantom stock or similar
plan providing for payments only to current or former directors, officers or
employees of the Borrower or any Restricted Subsidiary (or to their heirs or
estates) shall be deemed to be a Synthetic Purchase Agreement.
“Taxes”
means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Term
Commitments” means the Tranche A Commitments.
“Term
Loans” means the Tranche A Term Loans.
“Third
Amended and Restated FCX/ISI Pledge Agreement (PTII Shares)” means an
amended and restated pledge agreement pursuant to which each of FCX and
International Support Inc. granted a perfected first priority security interest
under Indonesian law in the PTII Shares for the ratable benefit of the holders
of the Obligations, the Ratable Obligations and the FI Obligations.
“Total
Debt” means, as of any date, the sum as of such date of (a) the aggregate
principal amount of Funded Debt of the Borrower and the Restricted Subsidiaries
outstanding as of such date, in the amount that would be reflected as a
liability on a balance sheet prepared as of such date on a consolidated basis
in
accordance with GAAP, plus (b), without duplication of amounts included
in clause (a), the aggregate amount of Attributable Debt of the Borrower and
the
Restricted Subsidiaries outstanding as of such date, minus (c) the lesser
as of such date of (i) $1,000,000,000 and (ii) the aggregate amount of Available
Domestic Cash.
“Total
Leverage Ratio” means, on any date, the ratio of (a) Total Debt as of
the last day of the fiscal quarter of FCX ended on such date or most recently
prior to
34
such
date
to (b) Consolidated EBITDA for the period of four consecutive fiscal
quarters of FCX ended on such date or most recently prior to such
date.
“Total
Secured Debt” means, as of any date, the sum as of such date of (a) the
aggregate principal amount of Funded Debt of the Borrower and the Restricted
Subsidiaries outstanding as of such date that is secured by any asset of the
Borrower or any Restricted Subsidiary, in the amount that would be reflected
as
a liability on a balance sheet prepared as of such date on a consolidated basis
in accordance with GAAP, plus (b), without duplication of amounts
included in clause (a), the aggregate amount of Attributable Debt of the
Borrower and the Restricted Subsidiaries outstanding as of such date,
minus (c) the lesser as of such date of (i) $1,000,000,000 and (ii) the
aggregate amount of Available Domestic Cash.
“Total
Secured Leverage Ratio” means, on any date, the ratio of (a) Total
Secured Debt as of the last day of the fiscal quarter of FCX ended on such
date
or most recently prior to such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters of FCX ended on such date or most
recently prior to such date.
“Tranche
A Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make a Tranche A Term Loan hereunder on the Amendment Effective
Date, expressed as an amount representing the maximum principal amount of the
Tranche A Term Loan to be made by such Lender hereunder, as such commitment
may
be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender’s Tranche
A Commitment is set forth on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Tranche A Commitment,
as
the case may be. The initial aggregate amount of the Lenders’ Tranche
A Commitments is $2,450,000,000.
“Tranche
A Lender” means a Lender with a Tranche A Commitment or an outstanding
Tranche A Term Loan.
“Tranche
A Maturity Date” means March 19, 2012.
“Tranche
A Term Loans” means Loans made pursuant to clause (a) of Section
2.01.
“Tranche
B Term Loans” has the meaning assigned to such term under the Existing
Parent Credit Agreement
“Transaction
Costs” means all fees, costs and expenses incurred or payable by the
Borrower or any Subsidiary in connection with the Transactions.
“Transactions”
means (a) the execution and delivery by each Loan Party of the Amendment
Agreement and each other Loan Document to which it is to be a party, the
continuation or creation of the Liens pursuant to the Security Documents, the
borrowing of Loans on the Amendment Effective Date, the use of the proceeds
thereof and the issuance of Letters of Credit on the Amendment Effective Date,
(b) the execution and delivery by the Borrower and each of its Subsidiaries
party thereto of the Restated Credit Agreement and the borrowing of loans
thereunder on the Amendment Effective Date and the use of the proceeds thereof,
the issuance of letters of credit thereunder on the Amendment Effective Date,
and the continuation or creation of the Liens pursuant to the Security Documents
thereunder, and (c) the payment of the Transaction Costs.
35
“Transferred
Shares” has the meaning set forth in the definition of “Qualifying PTFI Sale
Transaction”.
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the LIBO Rate or the Alternate Base Rate.
“Unrestricted
Subsidiary” means (i) any Subsidiary designated as an Unrestricted
Subsidiary by FCX in accordance with Section 6.13 after the Effective Date,
(ii) any Subsidiary of any Unrestricted Subsidiary, and (iii) any
surviving corporation (other than PTFI, FCX, PD or a Restricted Subsidiary)
into
which any of such corporations referred to in clause (i) or (ii) is
merged or consolidated, subject to Section 6.03. As of the
Amendment Effective Date, no Subsidiary is an Unrestricted
Subsidiary.
“Unrestricted
Subsidiary Investment Amount” means at any time (a) the aggregate cumulative
amount of Investments made in Unrestricted Subsidiaries on or after the
Effective Date under Section 6.04; plus (b) the Unrestricted Subsidiary
LC Exposure; plus (c) the aggregate cumulative amount of the existing
Investments in Unrestricted Subsidiaries at the time of the Designations under
Section 6.13(a); minus (d) the aggregate cumulative return of Investment
in Unrestricted Subsidiaries deemed to have occurred upon RS Designations as
determined under Section 6.13(b), the Net Proceeds received by FCX and the
Restricted Subsidiaries in respect of dispositions of Investments in
Unrestricted Subsidiaries and the aggregate amount of dividends and other
distributions received by FCX and the Restricted Subsidiaries from Unrestricted
Subsidiaries. For purposes of determining the Unrestricted Subsidiary
Investment Amount at any time, any completion Guarantee by FCX or any Restricted
Subsidiary of any Project Financing of any Unrestricted Subsidiary shall be
deemed to be an Investment in such Unrestricted Subsidiary in an amount at
any
time equal to the lesser of (1) the maximum stated amount of the claim that
may
be made under such Guarantee, if any, and (2) the aggregate outstanding
principal amount of such Project Financing at such time.
“Unrestricted
Subsidiary LC Exposure” means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit and “Letters of Credit”
under the Restated Credit Agreement issued for the account of Unrestricted
Subsidiaries at such time plus (b) the aggregate amount of all LC Disbursements
and “LC Disbursements” under the Restated Credit Agreement relating to such
Letters of Credit and “Letters of Credit” that have not yet been reimbursed by
or on behalf of the Borrower or PTFI at such time.
“Wholly
Owned Subsidiary” means a subsidiary of FCX of which securities or other
ownership interests (except for directors’ qualifying shares and other de
minimis amounts of outstanding securities or ownership interests) representing
100% of the ordinary voting power and 100% of equity or 100% of the general
partnership interests are, at the time any determination is being made, owned,
Controlled or held by FCX or one or more Wholly Owned Subsidiaries of FCX,
or by
FCX and one or more Wholly Owned Subsidiaries of FCX.
“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined
in
Part I of Subtitle E of Title IV of ERISA.
36
“World
Bank Guidelines” means the World Bank Pollution Prevention and Abatement
Handbook Guidelines, summarized and attached in Annex A to the ERM
Report.
SECTION
1.02. Classification
of Loans and Borrowings. For purposes of this Agreement, Loans
may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type
(e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving
Loan”). Borrowings also may be classified and referred to by Class
(e.g., a “Revolving Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or
by Class and Type (e.g., a “Eurodollar Revolving
Borrowing”). Commitments also may be classified and referred to by
Class (e.g., a “Revolving Commitment”).
SECTION
1.03. Terms
Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument
or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, amended and restated,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any
reference to any law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any reference
to
any law or regulation shall, unless otherwise specified, refer to such law
or
regulation as amended, modified or supplemented from time to time and to any
successor law or regulation, (c) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (d) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (e) all references herein to Articles, Sections, Exhibits
and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (f) the words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
37
ARTICLE
II
The
Credits
SECTION
2.02. Loans
and Borrowings. (a) Each Loan (other than a Swingline
Loan) shall be made as part of a Borrowing consisting of Loans of the same
Class
and Type made by the Lenders ratably in accordance with their respective
Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender
of
its obligations hereunder, provided that the Commitments of the Lenders
are several and no Lender shall be responsible for any other Lender’s failure to
make Loans as required.
(b) Subject
to Section 2.13, each Revolving Borrowing and Term Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith, provided that all Borrowings made on the
Amendment Effective Date must be made as ABR Borrowings unless the Borrower
shall have provided an indemnity satisfactory to the Administrative Agent
extending the benefits of Section 2.15 to Lenders in respect of such
Borrowings. Each Swingline Loan shall be an ABR Loan. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan, provided
that any exercise of such option shall not affect the obligation of the Borrower
to repay such Loan in accordance with the terms of this Agreement.
(c) At
the
commencement of each Interest Period for any Eurodollar Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. Each
Swingline Loan shall be in an amount that is an integral multiple of $1,000,000
and not less than $1,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time, provided that there shall not
at any time be more than a total of 25 Eurodollar Borrowings
outstanding. Notwithstanding anything to the contrary herein, an ABR
Revolving Borrowing or a Swingline Loan may be in an aggregate amount that
is
equal to the entire unused balance of the aggregate Revolving Commitments or
that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e).
SECTION
2.03. Requests
for Borrowings. To request a Revolving Borrowing or Term
Borrowing, the Borrower shall notify the Administrative Agent of
38
such
request by telephone (a) in the case of a Eurodollar Borrowing, not later
than 1:00 p.m., New York City time, three Business Days before the
date of the proposed Borrowing or (b) in the case of an ABR Borrowing,
including to finance the reimbursement of an LC Disbursement as contemplated
by
Section 2.05(e), not later than 12:00 noon, New York City time, on the
date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or
telecopy (or by electronic transmission with telephonic confirmation of receipt
thereof) to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) whether
the requested Borrowing is to be a Revolving Borrowing, or Tranche A Term
Borrowing;
(ii) the
aggregate amount of such Borrowing;
(iii) the
date
of such Borrowing, which shall be a Business Day;
(iv) whether
such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(v) in
the
case of a Eurodollar Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and
(vi) the
location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of
Section 2.04.
SECTION
2.04. Funding
of Borrowings. (a) Each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 1:00 p.m., New York City time, to the account
of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders, provided that Swingline Loans shall be made as
provided in Section 2.19. The Administrative Agent will make such
funds transferred to it available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower maintained
with the Administrative Agent in New York City and designated by the Borrower
in
the applicable Borrowing Request; provided that ABR Loans made to finance
the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall
be
remitted by the Administrative Agent to the applicable Issuing Bank or, to
the
extent that Revolving Lenders have made payments pursuant to Section 2.05(e)
to
reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as
their
interests may appear.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to
the
proposed time of any Borrowing that such Lender will not make available to
the
Administrative Agent such Lender’s share of such Borrowing, the
39
SECTION
2.05. Letters
of Credit. (a) General. (i) Subject
to the terms and conditions set forth herein, the Borrower may request the
issuance of Letters of Credit (A) for its own account, (B) for the account
of
any Restricted Subsidiary and (C) subject to Section 6.04 and to the last
sentence of this paragraph, for the account of Unrestricted Subsidiaries, in
any
case in a form reasonably acceptable to the Administrative Agent and the
applicable Issuing Bank, at any time and from time to time during the Revolving
Availability Period. The issuance of any Letter of Credit for the
account of an Unrestricted Subsidiary shall be deemed to constitute an
Investment in an Unrestricted Subsidiary pursuant to Section 6.04 in the
stated amount of such Letter of Credit.
(ii)
On the Effective Date, each
Issuing Bank that had issued an Existing Letter of Credit was deemed, without
further action by any party hereto, to have granted to each Revolving Lender
and
each Revolving Lender was deemed to have purchased from such Issuing Bank a
participation in such Existing Letter of Credit in accordance with paragraph
(d)
below. The applicable Issuing Banks and the Lenders that were also
party to the PD Credit Agreement and the Existing Credit Agreement agreed that
concurrently with such grant, the participations in the Existing Letters of
Credit granted to such lenders under the PD Credit Agreement or the Existing
Credit Agreement, as applicable, were automatically canceled without further
action by any of the parties thereto. On and after the Effective
Date, each Existing Letter of Credit shall constitute a Letter of Credit for
all
purposes hereof. Any Lender that issued an Existing Letter of Credit
but shall not have entered into an Issuing Bank Agreement shall have the rights
of an Issuing Bank as to such Letter of Credit for purposes of this Section
2.05.
(iii)
The Borrower may at any time
redesignate Letters of Credit as Letters of Credit under the Restated Credit
Agreement (“RA Letters of Credit”); provided that (A) the Borrower
shall by notice to the Administrative Agent identify the Letters of Credit
to be
redesignated hereunder and certify that the conditions to such redesignation
set
forth in the following clause (B) are satisfied and that no Default shall have
occurred and be continuing; and (B) no redesignation of a Letter of Credit
shall
become effective hereunder unless after giving effect to such redesignation
the
conditions precedent to the issuance, amendment, renewal or extension of an
RA
Letter of Credit under the Restated Credit Agreement shall be satisfied (or
waived in accordance with Section 9.02 of the Restated Credit
Agreement). If at any time the total Commitments (as defined in the
Restated Credit Agreement) exceed the total Exposures (as defined in the
Restated Credit Agreement), and, after giving effect to any prepayment required
to be made under Section 2.10(b) of this Agreement within three Business Days
of
the origin of such excess, such excess shall not be reduced to zero, the
Borrower hereby irrevocably directs
40
(d) Participations. By
the issuance of a Letter of Credit (or an amendment to a Letter of Credit
increasing the amount thereof) and without any further action on the part of
the
applicable Issuing Bank or the Lenders, the applicable Issuing Bank hereby
grants to each Revolving Lender, and each Revolving Lender hereby acquires
from
such
41
(f) Obligations
Absolute. The Borrower’s obligation to reimburse LC Disbursements
as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever
and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any
42
43
(j) Cash
Collateralization. If any Event of Default shall occur and be
continuing or if the Borrower is required to provide cash collateral pursuant
to
Section 2.10(b) or if the Borrower gives written notice to the
Administrative Agent that it elects to provide cash collateral for purposes
of
Section 6.14 and 6.15, on the Business Day on which the Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity
of
the Loans has been accelerated, Revolving Lenders with LC Exposure representing
greater than 50% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, or on the date the Borrower provides
notice of such election, as applicable, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and
for
the benefit of the Lenders, an amount in cash equal to the LC Exposure as of
such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, (i) upon the occurrence of any Event of Default with
respect to the Borrower described in clause (g) or (h) of Article VII
or (ii) upon the occurrence of the circumstances described in Section
2.10(b). Each such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the Borrower
under this Agreement, and the Borrower hereby grants the Lenders a security
interest in all funds and investments in such account to secure such
obligations. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such
deposits, which investments shall be made at the option and sole discretion
of
the Administrative Agent and at the Borrower’s risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing Banks
for
LC Disbursements for which they have not been reimbursed and, to the extent
not
so applied, shall be held for the satisfaction of the reimbursement obligations
of the Borrower for the LC Exposure at such time or, if the maturity of the
Loans has been accelerated (but subject to the consent of Revolving Lenders
with
LC Exposure representing greater than 50% of the total LC Exposure),
be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default or
elects to provide such collateral for purposes of Section 6.14 and 6.15, such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrower (i) in the case of any Event of Default, within three Business Days
after all Events of Default have been cured or waived, or (ii) in the case
of
any such election, after the delivery of financial statements showing compliance
44
SECTION
2.06. Interest
Elections. (a) Each Borrowing initially shall be of
the Type specified in the applicable Borrowing Request or deemed by Section
2.03, and, in the case of a Eurodollar Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request or deemed by Section
2.03. Thereafter, the Borrower may elect to convert such Borrowing to
a different Type or to continue such Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline
Borrowings, which may not be converted or continued.
(b) To
make
an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to
be
made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed
by
the Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02 (including with respect to
minimum amounts and borrowing multiples relating to any resulting
Borrowing):
(i) the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case
the
45
information
to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
and
(iv) if
the
resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.
If
any
such Interest Election Request requests a Eurodollar Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration.
(d) Promptly
following receipt of an Interest Election Request with respect to a Borrowing,
the Administrative Agent shall advise each Lender of the details thereof and
of
such Lender’s portion of each resulting Borrowing.
SECTION
2.07. Termination
and Reduction of Commitments. (a) Unless previously
terminated, (i) the Tranche A Commitments shall terminate at 5:00 p.m., New
York
City time, on the Amendment Effective Date and (ii) the Revolving Commitments
shall terminate on the Revolving Maturity Date.
(b) FCX
may
at any time terminate, or from time to time reduce, the Commitments of any
Class; provided that (i) each reduction of the Commitments of any
Class shall be in an amount that is an integral multiple of $1,000,000 and
not
less than $5,000,000 and (ii) FCX shall not terminate or reduce the
Revolving Commitments if, after giving effect to any concurrent prepayment
of
Loans and provision of cash collateral, in each case in accordance with
Section 2.10(b), the aggregate Revolving Exposures (excluding the LC
Exposure with respect to which cash collateral has been provided in accordance
with Section 2.10(b)) would exceed the total Revolving Commitments.
(c) FCX
shall
notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section, at least three Business
Days prior to the effective date of such termination or reduction, specifying
such election or reduction and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by FCX
pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Revolving Commitments delivered by FCX may state that such
notice
46
SECTION
2.08. Repayment of
Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Revolving Loan of such
Lender on the Revolving Maturity Date, (ii) to the Administrative Agent for
the
account of each Lender the then unpaid principal amount of each Term Loan of
such Lender as provided in Section 2.09 and (iii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the earlier of the
Revolving Maturity Date and the first date after such Swingline Loan is made
that is the 15th or last day of a calendar month and is at least two Business
Days after such Swingline Loan is made, provided that on each date that a
Revolving Borrowing is made, the Borrower shall repay all Swingline Loans that
were outstanding on the date such Borrowing was requested.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(c) The
Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the Type and Class thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each
Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.
(d) The
entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be primafacie evidence of the
existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this
Agreement.
47
SECTION
2.09. Amortization
of Term Loans. (a) Subject to adjustment pursuant to
paragraph (c) of this Section, the Borrower shall repay Tranche A Term
Borrowings on each date set forth below in the aggregate principal amount set
forth opposite such date:
Date
|
Principal
Amount
|
September
30, 2007
|
$122,500,000
|
March
31, 2008
|
$122,500,000
|
September
30, 2008
|
$122,500,000
|
March
31, 2009
|
$122,500,000
|
September
30, 2009
|
$122,500,000
|
March
31, 2010
|
$122,500,000
|
September
30, 2010
|
$122,500,000
|
March
31, 2011
|
$122,500,000
|
September
30, 2011
|
$122,500,000
|
Tranche
A Maturity Date
|
$1,347,500,000
|
(b) To
the
extent not previously paid, all Tranche A Term Loans shall be due and payable
on
the Tranche A Maturity Date.
(c) Any
prepayment of a Term Borrowing shall be applied to reduce the subsequent
scheduled repayments of the Term Borrowings to be made pursuant to this Section
in direct order. If the initial aggregate amount of the Lenders’ Term
Commitments exceeds the aggregate principal amount of Term Loans that are made
on the Amendment Effective Date, then the scheduled repayments of Term
Borrowings to be made pursuant to this Section shall be reduced ratably by
an
aggregate amount equal to such excess.
SECTION
2.10. Prepayment
of Loans. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, without
premium or penalty, subject to the requirements of this Section and to the
making of any payment required under Section 2.15.
(b) In
the
event and on each occasion on or prior to the Revolving Maturity Date that
the
sum of the Revolving Exposures exceeds the total Revolving Commitments, the
Borrower shall prepay Revolving Borrowings in an aggregate amount equal to
such
excess; provided that if no Revolving Borrowings are outstanding and the
LC Exposure exceeds the total Revolving Commitments, the Borrower shall provide
cash collateral in an aggregate amount equal to such excess in accordance with
Section 2.05(j). In addition, at any time that Revolving Borrowings
are outstanding and the total Revolving Commitments (as defined in the Restated
Credit Agreement) exceed the total Revolving Exposures (as defined in the
Restated Credit Agreement) by the minimum borrowing amount thereunder or more,
the Borrower shall at the end of the next Interest Period for any Revolving
Borrowing, prepay such Revolving Borrowing (or, if less, a
48
portion
of such Borrowing equal to the unused Commitments (as defined in the Restated
Credit Agreement) at the time of such prepayment.
(c) Prior
to
any optional or mandatory prepayment of Borrowings hereunder, the Borrower
shall
select the Borrowing or Borrowings to be prepaid and shall specify such
selection in the notice of such prepayment pursuant to paragraph (d) of this
Section. In the event of any optional prepayment of Term Borrowings,
the Borrower shall specify the amount of such prepayment, and the amount of
any
such prepayment of Term Borrowings shall be applied in direct order of maturity
to the remaining amortization payments under Section 2.09 on a pro-rata basis
among the Term Lenders.
SECTION
2.11. Fees. (a) The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee, which shall accrue at the Applicable Rate on the daily
average unused amount of the Revolving Commitment of such Lender during the
period from and including the Amendment Effective Date to but excluding the
date
on which the Revolving Commitments terminate. Accrued commitment fees
shall be payable in arrears on the last day of March, June, September and
December of each year, and on the date on which the Revolving Commitments
terminate, commencing on the first such date to occur after the Amendment
Effective Date. All commitment fees shall be computed on the basis of
a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of
computing commitment fees, a Revolving Commitment of a Lender shall be deemed
to
be used to the extent of the outstanding Loans and LC Exposure of such Lender
(and the Swingline Exposure of such Lender shall be disregarded for such
purpose).
(b) The
Borrower agrees to pay (i) to the Administrative Agent for the account of
each Revolving Lender a participation fee with respect to such Lender’s
participation in Letters of Credit, which shall accrue at the same Applicable
Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such Lender’s LC Exposure (excluding any
portion thereof attributable to
49
unreimbursed
LC Disbursements) during the period from and including the Amendment Effective
Date to but excluding the later of the date on which such Lender’s Revolving
Commitment terminates and the date on which such Lender ceases to have any
LC
Exposure, and (ii) to each Issuing Bank a fronting fee, which shall accrue
at the rate or rates per annum separately agreed upon between the Borrower
and
such Issuing Bank on the average daily amount of the LC Exposure attributable
to
Letters of Credit issued by such Issuing Bank (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Amendment Effective Date to but excluding the later of the date
of
termination of the Revolving Commitments and the date on which there ceases
to
be any LC Exposure, as well as each Issuing Bank’s standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting
fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following
such
last day, commencing on the first such date to occur after the Amendment
Effective Date; provided that all such fees shall be payable on the date
on which the Revolving Commitments terminate (and, if later, the date on which
there ceases to be any Revolving Exposure) and any such fees accruing after
the
date on which the Revolving Commitments terminate shall be payable on
demand. Any other fees payable to an Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year
of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The
Borrower agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.
SECTION
2.12. Interest. (a) The
Loans comprising each ABR Borrowing (including each Swingline Loan) shall
bear interest at the Alternate Base Rate plus the Applicable Rate.
(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 the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall, on and
after the date the Required Lenders so request, bear interest, after as well
as
before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Revolving Loans as provided
in paragraph (a) of this Section.
(d) Accrued
interest on each Loan made to the Borrower shall be payable by the Borrower
in
arrears on each Interest Payment Date for each such Loan and, in the case of
Revolving Loans, upon termination of the Revolving Commitments; provided
that
50
(i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other
than a prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any Eurodollar Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable
on the effective date of such conversion.
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;
SECTION
2.14. Increased
Costs. (a) If any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by,
any Lender (except any such reserve requirement reflected in Eurodollar Reserve
Requirements) or any Issuing Bank; or
(ii) impose
on
any Lender or any Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender
or
any Letter of Credit or participation therein;
and
the
result of any of the foregoing shall be to increase the cost to such Lender
of
making or maintaining any Eurodollar Loan (or of maintaining its obligation
to
make any such Loan) or to increase the cost to such Lender or such Issuing
Bank
of participating in, issuing or maintaining any Letter of Credit or to reduce
the amount of any sum received or receivable by such Lender or such Issuing
Bank
hereunder (whether of principal, interest or otherwise), in each case by or
in
an amount which such Lender in its sole judgment deems material in the context
of this Agreement and its Loans or participations
51
in
Letters of Credit hereunder, then the relevant Borrower will pay to such Lender
or such Issuing Bank, as the case may be, such additional amount or amounts
as
will compensate such Lender or such Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If
any
Lender shall give notice to the Administrative Agent and the Borrower at any
time to the effect that Eurodollar Reserve Requirements are, or are scheduled
to
become, effective and that such Lender is or will be generally subject to such
Eurodollar Reserve Requirements as a result of which such Lender will incur
additional costs, then such Lender shall, for each day from the later of the
date of such notice and the date on which such Eurodollar Reserve Requirements
become effective, be entitled to additional interest on each Eurodollar Loan
made by it at a rate per annum determined for such day (rounded upward, if
necessary, to the nearest 100th of 1%) equal to the remainder obtained by
subtracting (i) the LIBO Rate for such Eurodollar Loan from (ii) the
rate obtained by dividing such LIBO Rate by a percentage equal to 100% minus
the
then-applicable Eurodollar Reserve Requirements. Such additional
interest will be payable in arrears to the Administrative Agent, for the account
of such Lender, on each Interest Payment Date relating to such Eurodollar Loan
and on any other date when interest is required to be paid hereunder with
respect to such Loan. Any Lender which gives notice under this
paragraph (b) shall promptly withdraw such notice (by written notice of
withdrawal given to the Administrative Agent and the Borrower) in the event
Eurodollar Reserve Requirements cease to apply to it or the circumstances giving
rise to such notice otherwise cease to exist.
(c) If
any
Lender or any Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such
Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or
such Issuing Bank’s holding company, if any, as a consequence of this Agreement
or the Loans made by, or participations in Letters of Credit held by, such
Lender or the Letters of Credit issued by such Issuing Bank, to a level below
that which such Lender or such Issuing Bank or such Lender’s or such Issuing
Bank’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s or such Issuing Bank’s policies and the
policies of such Lender’s or such Issuing Bank’s holding company with respect to
capital adequacy), by an amount which such Lender in its sole judgment deems
to
be material in the context of this Agreement and its Loans, Commitments and
participations in Letters of Credit hereunder, then from time to time the
Borrower will pay to such Lender or such Issuing Bank, as the case may be,
such
additional amount or amounts as will compensate such Lender or such Issuing
Bank
or such Lender’s or such Issuing Bank’s holding company for any such reduction
suffered.
(d) A
certificate of a Lender or an Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or such Issuing Bank or its holding company,
as the case may be, as specified in paragraph (a) or (c) of this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or such Issuing
Bank the amount shown as due on any such certificate within 10 days after
receipt thereof.
(e) Failure
or delay on the part of any Lender or any Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or such
Issuing Bank’s right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender or an Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 180 days prior to the date that such Lender or such Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to
such
increased costs or reductions and of such Lender’s
52
SECTION
2.16. Taxes. (a) Any
and all payments by or on account of any obligation of the Borrower or any
other
Loan Party hereunder or under any other Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Borrower shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an
amount equal to the sum it would have received had no such deductions been
made,
(ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In
addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The
Borrower shall indemnify the Administrative Agent, each Lender and each Issuing
Bank, within 10 days after written demand therefor, for the full amount of
any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender
or such Issuing Bank, as the case may be, on or with respect to any payment
by
or on account of any obligation of the Borrower hereunder or under any other
Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted
on
or attributable to amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other
53
Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority, provided, however, that the Borrower shall not be
obligated to make payment to the Administrative Agent or any Lender or Issuing
Bank pursuant to this Section in respect of penalties, interest and other
liabilities attributable to any Indemnified Taxes or Other Taxes, if such
penalties, interest and other liabilities are attributable to the gross
negligence or wilful misconduct of the Administrative Agent, Lender or Issuing
Bank. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or an Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or an Issuing
Bank, shall be conclusive absent manifest error.
(d) As
soon
as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) If
the
Administrative Agent, a Lender or an Issuing Bank determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.16, it shall
pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.16 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or such Issuing
Bank and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the
Borrower, upon the request of the Administrative Agent, such Lender or such
Issuing Bank, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or such Issuing Bank in
the
event the Administrative Agent, such Lender or such Issuing Bank is required
to
repay such refund to such Governmental Authority.
(f) Any
Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which the Borrower is located, or
any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent as will permit such
payments to be made without withholding or at a reduced rate, provided
that such Foreign Lender has received written notice from the Borrower or the
Administrative Agent, as the case may be, advising it of the availability of
such exemption or reduction and supplying all applicable
documentation.
SECTION
2.17. Payments
Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment
required to be made by it hereunder or under any other Loan Document (whether
of
principal, interest, fees or reimbursements of LC Disbursements, or of amounts
payable under Section 2.14, 2.15 or 2.16 or otherwise) prior to the time
expressly required hereunder or under such other Loan
54
Document
for such payment (or, if no such time is expressly required, prior to 12:00
noon, New York City time), on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to
have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
except payments to be made directly to an Issuing Bank or Swingline Lender
as
expressly provided herein and except that payments pursuant to
Sections 2.14 (other than paragraph (b) thereof), 2.15, 2.16 and 9.03
shall be made directly to the Persons entitled thereto and payments pursuant
to
other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment under any Loan
Document shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of
any
payment accruing interest, interest thereon shall be payable for the period
of
such extension. All payments under each Loan Document shall be made
in dollars.
(b) If
at any
time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements,
interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If
any
Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its
Revolving Loans, Term Loans or participations in LC Disbursements or Swingline
Loans resulting in such Lender receiving payment of a greater proportion of
the
aggregate amount of its Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans, Term Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Revolving Loans,
Term Loans and participations in LC Disbursements and Swingline Loans;
provided that (i) if any such participations are purchased and all
or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this
paragraph shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment of or sale
of a
participation in any of its Loans or participations in LC Disbursements to
any
assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall
apply). The Borrower consents to the foregoing and agrees, to the
extent it may effectively do so under applicable law, that any Lender acquiring
a participation pursuant to the foregoing arrangements may exercise against
the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
55
(d) Unless
the Administrative Agent shall have received notice from the Borrower prior
to
the date on which any payment is due to the Administrative Agent for the account
of the Lenders or an Issuing Bank hereunder that the Borrower will not make
such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption and in its sole discretion, distribute to the Lenders or such Issuing
Bank, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or such
Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or such Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
SECTION
2.18. Mitigation
Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.14 (other than paragraph (b)
thereof), or if the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.16, then such Lender shall use reasonable efforts to designate
a different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.14 (other than paragraph (b) thereof) or 2.16, as the case may
be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such
Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) If
any
Lender requests compensation under Section 2.14 (other than
paragraph (b) thereof), or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account
of
any Lender pursuant to Section 2.16, or if any Lender defaults in its
obligation to fund Loans hereunder, or if any Lender has failed to consent
to a
proposed amendment, waiver, discharge or termination which pursuant to the
terms
of Section 9.02 requires the consent of all of the Lenders affected and with
respect to which the Required Lenders shall have granted their consent, then
the
Borrower may, at its sole expense and effort, upon notice to such Lender and
the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee
may
be another Lender, if a Lender accepts such assignment); provided that
(i) the Borrower shall have received the prior written consent of the
Administrative Agent (and, if a Revolving Commitment is being assigned, each
Principal Issuing Bank and the Swingline Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of
an amount equal to the outstanding principal of its Loans and participations
in
LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees
and
all other amounts payable to it
56
SECTION
2.19. Swingline
Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding that will not result in
(i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$100,000,000 or (ii) the aggregate Revolving Exposures exceeding the aggregate
Revolving Commitments, provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline
Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b) To
request a Swingline Loan, the Borrower shall notify the Administrative Agent
of
such request by telephone (confirmed by telecopy), not later than 2:00 p.m.,
New
York City time, on the day of such proposed Swingline Loan. Each such
notice shall be irrevocable and shall specify the requested date (which shall
be
a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make
each Swingline Loan available to the Borrower by means of a credit to the
general deposit account of the Borrower maintained with the Swingline Lender
(or, in the case of a Swingline Loan made to finance the reimbursement of an
LC
Disbursement as provided in Section 2.05(e), by remittance to the applicable
Issuing Bank or, to the extent that the Revolving Lenders have made payments
pursuant to Section 2.05(e) to reimburse a Issuing Bank, to such Lenders and
such Issuing Bank as their interests may appear) by 3:00 p.m., New York City
time, on the requested date of such Swingline Loan.
(c) The
Swingline Lender may by written notice given to the Administrative Agent not
later than 12:00 noon, New York City time, on any Business Day require the
Revolving Lenders to acquire participations on such Business Day in all or
a
portion of the Swingline Loans outstanding. Such notice shall specify
the aggregate amount of Swingline Loans in which Revolving Lenders will
participate. Promptly upon receipt of such notice, the Administrative
Agent will give notice thereof to each Revolving Lender, specifying in such
notice such Lender’s Applicable Percentage of such Swingline Loan or Swingline
Loans. Each Revolving Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender’s Applicable
Percentage of such Swingline Loan or Swingline Loans. Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations
in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments,
and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Revolving
57
ARTICLE
III
Representations
and Warranties
FCX
represents and warrants to the Lenders on the date hereof, on the Amendment
Effective Date and on each other date on which representations and warranties
are made or deemed made hereunder that:
SECTION
3.01. Organization;
Powers. The Borrower, each Loan Party and each of the Borrower’s
other Restricted Subsidiaries is duly organized and validly existing (except
to
the extent that the failure of such other Restricted Subsidiaries to be duly
organized and validly existing would not, individually or in the aggregate,
be
expected to result in a Material Adverse Effect) and, to the extent applicable,
except where the failure to do so, individually or in the aggregate, would
not
reasonably be expected to result in a Material Adverse Effect in good standing
under the laws of the jurisdiction of its organization, has, except where the
failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, all requisite power and
authority to carry on its business as now conducted and to execute, deliver
and
perform its obligations under each Loan Document to which it is a party and,
except where the failure to do so, individually or in the aggregate, would
not
reasonably be expected to result in a Material Adverse Effect, is qualified
to
do business in, and is, to the extent applicable, in good standing in, every
jurisdiction where such qualification is required.
SECTION
3.02. Authorization;
Enforceability. The performance by each Loan Party of the Loan
Documents to which it is or is to be party, the Borrowings and the issuances
of
Letters of Credit hereunder and the Transactions to be entered into by each
Loan
Party are within such Loan Party’s corporate powers and have been duly
authorized by all necessary corporate and, if required, stockholder
action. This Agreement has been duly executed and delivered by the
Borrower and constitutes, and each other Loan
58
Document
to which any Loan Party is or is to be a party, constitutes or when executed
and
delivered by such Loan Party, will constitute, a valid and binding obligation
of
such Loan Party, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally, concepts of reasonableness and general principles
of equity, regardless of whether considered in a proceeding in equity or at
law.
SECTION
3.03. Governmental
Approvals; No Conflicts. Except as set forth in Schedule 3.03,
the performance by each Loan Party of the Loan Documents to which it is or
is to
be party, the Borrowings and the issuances of Letters of Credit hereunder and
the Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except (i) such as have been obtained or made and are in full force and effect,
(ii) filings necessary to perfect Liens created under the Loan Documents, (iii)
certain consents and approvals that may be required in order to provide certain
guarantees or to grant certain Liens, in each case contemplated by the
Collateral and Guarantee Requirement or Section 5.12 or 5.13 hereof, (iv) the
filing of information in respect thereof with the Securities and Exchange
Commission and (v) other consents, approvals, registrations, filings or actions
the failure of which to obtain or make, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect, (b) will
not
violate the charter, by-laws or other organizational documents of the Borrower
or any of the Loan Parties, (c) except to the extent that any such
violations or defaults would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect, (i) will not violate any
applicable law or regulation or any order of any Governmental Authority and
(ii)
will not violate or result in a default under any indenture, agreement or other
instrument binding upon the Borrower or any of its Restricted Subsidiaries
or
its assets and (d) will not result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Restricted Subsidiaries, except
Liens created under the Loan Documents (including Ratable Liens securing Ratable
Obligations).
SECTION
3.04. Financial
Condition; No Material Adverse Change. (a) The
Borrower has heretofore furnished to the Lenders the Borrower’s consolidated
balance sheet and consolidated statements of income, stockholders’ equity and
cash flows (i) as of and for the fiscal year ended December 31, 2006, reported
on by Ernst & Young LLP, independent registered public accountants, and (ii)
as of and for the fiscal quarter and the portion of the fiscal year ended March
31, 2007, certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the consolidated financial
position and consolidated results of operations and cash flows of the Borrower
and its consolidated Subsidiaries as of such 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) The
Borrower has heretofore furnished to the Lenders PD’s consolidated balance sheet
and consolidated statements of income, shareholders’ equity and cash flows as of
and for the fiscal year ended December 31, 2006, reported on by
PricewaterhouseCoopers LLP, independent registered public
accountants. Such financial statements present fairly, in all
material respects, the consolidated financial position and consolidated results
of operations and cash flows of PD and its consolidated subsidiaries as of
such
date and for such period in accordance with GAAP.
(c) Except
as
disclosed in the financial statements referred to above or the notes thereto
or
in the Confidential Information Materials and except for the Disclosed Matters,
after giving effect to the Transactions, neither the Borrower nor any of the
Restricted Subsidiaries has, as of the Amendment Effective Date, any material
contingent
59
liabilities,
unusual long-term commitments or unrealized losses that would reasonably be
expected to give rise to a Material Adverse Effect.
(d) Except
as
set forth in Schedule 3.04(d), since December 31, 2006, there has been no
material adverse change in (i) the business, operations or financial condition
of FCX and its Subsidiaries, taken as a whole, (ii) the ability of any Loan
Party to perform its obligations under any Loan Document or (iii) the
rights of or benefits available to the Lenders under the Loan
Documents.
SECTION
3.05. Properties. (a) Except
to the extent that any failure to do so individually or in the aggregate would
not reasonably be expected to result in a Material Adverse Effect, the Borrower
and each of the Restricted Subsidiaries has good title to, or valid leasehold
interests in, all of its real and personal property material to its business,
except for Liens permitted by Section 6.02.
(b) Except
to
the extent that any such failure or infringement, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect, the Borrower and each of the Restricted Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and the Restricted Subsidiaries does not infringe upon the rights
of
any other Person.
SECTION
3.06. Litigation
and Environmental Matters. (a) Except for the
Disclosed Matters, there are no actions, suits or proceedings by or before
any
Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Restricted
Subsidiaries that would reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
(b) Except
for the Disclosed Matters and except for any other matters that, individually
or
in the aggregate, would not reasonably be expected to result in a Material
Adverse Effect, neither the Borrower nor any of its Restricted Subsidiaries
(i) has failed to comply with any applicable Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
for its operations or properties under any applicable Environmental Law,
(ii) is obligated to remediate contamination resulting from releases of
Hazardous Materials or (iii) has received written notice of any claim with
respect to any Environmental Liability.
(c) Since
the
date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in a Material
Adverse Effect.
SECTION
3.07. Compliance
with Laws and Agreements. The Borrower and its Restricted
Subsidiaries are in compliance in all material respects with all laws,
regulations and orders of any Governmental Authority applicable to them or
their
properties and all indentures, agreements (including without limitation, in
the
case of PTFI, the Contract of Work) and other instruments binding upon them
or
their properties, except where the failure to do so, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION
3.08. Investment
Company Status. No Loan Party is an “investment company” under
the Investment Company Act of 1940.
60
SECTION
3.09. Taxes. The
Borrower and its Subsidiaries have timely filed or caused to be filed all Tax
returns and reports required to have been filed by them and have paid or caused
to be paid all Taxes required to have been paid by them, except (i) any Taxes
that are being contested in good faith by appropriate proceedings and for which
the Borrower or such Subsidiary, as applicable, has, to the extent required
by
GAAP, set aside on its books adequate reserves and (ii) returns and reports
the
non-filing of which, and Taxes the non-payment of which, individually or in
the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
SECTION
3.10. ERISA. No
ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events for which liability is reasonably
expected to occur, would reasonably be expected to result in a Material Adverse
Effect. Except as would not reasonably be expected to result in a
Material Adverse Effect, the present value of all accumulated benefit
obligations under all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of all such underfunded
Plans.
SECTION
3.11. Disclosure. The
Confidential Information Materials and the other reports, financial statements,
certificates and other information furnished in writing by the Loan Parties
or
on behalf of, and with the authorization of, the Loan Parties to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished), taken as a whole,
do not contain any material misstatement of fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect
to projected financial information, the Borrower represents only that (i) such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time delivered and (ii) in the case of the projected financial
information delivered in connection with the amendment and restatement of the
Existing Parent Credit Agreement, such projected financial information has
not
been modified by the Borrower as of the Amendment Effective Date in any respect
material and adverse to the Lenders.
SECTION
3.12. Subsidiaries. Schedule
3.12 sets forth the name of, and the ownership interest of the Borrower and
each
Subsidiary in, each Subsidiary of the Borrower (other than Immaterial
Subsidiaries) and specifies whether each such Subsidiary is a Loan Party, in
each case as of the Amendment Effective Date.
SECTION
3.13. Insurance. Schedule
3.13 sets forth a description of all material insurance maintained by or on
behalf of the Borrower and its Restricted Subsidiaries as of the Effective
Date. As of the Effective Date, all material premiums in respect of
such insurance are current and such insurance is in full force and
effect. The Borrower believes that the insurance maintained by or on
behalf of the Borrower and its Restricted Subsidiaries is adequate.
SECTION
3.14. Labor
Matters. As of the Amendment Effective Date, there are no
strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending
or, to the knowledge of the Borrower, threatened, that would reasonably be
expected to result, individually or in the aggregate, in a Material Adverse
Effect. The consummation of the Transactions will not give rise to
any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to
61
which
the
Borrower or any Subsidiary is party that would reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect.
SECTION
3.15. Security
Documents. At all times on and after the Amendment Effective
Date,
(a) The
Collateral Agreement shall be effective to create in favor of the Collateral
Agent for the ratable benefit of the Secured Parties (as defined in the
Collateral Agreement) a valid and enforceable security interest in the
Collateral (as defined therein) and the proceeds thereof and (i) when the
Collateral (as defined therein) constituting certificated securities (as defined
in the Uniform Commercial Code (as defined in the Collateral Agreement)) is
delivered to the Collateral Agent thereunder together with instruments of
transfer duly endorsed in blank, the security interest of the Collateral Agent
therein will constitute a perfected Lien on, and security interest in, all
right, title and interest of the Grantors (as defined in the Collateral
Agreement) in such Collateral, prior and superior in right to any other Person
(subject only to Liens permitted under Section 6.02) (it being understood that
no representation is made under this clause (i) as to (A) any such Collateral
that is subject to a Foreign Pledge Agreement or (B) the perfection or priority
of any Lien to the extent that such perfection or priority is
determined under the law of a jurisdiction outside the United States, which
are
covered by paragraph (b) below), and (ii) when financing statements in
appropriate form are filed in the offices specified in the Perfection
Certificate, the security interest of the Collateral Agent will constitute
a
perfected Lien on and security interest in all right, title and interest of
the
Grantors (as defined in the Collateral Agreement) in the Collateral (as defined
therein) and the proceeds thereof to the extent perfection can be obtained
by
filing Uniform Commercial Code financing statements, prior and superior to
the
rights of any other Person (subject only to Liens permitted under Section
6.02).
(b) After
taking the actions specified for perfection therein, each Foreign Pledge
Agreement, when executed and delivered, will be effective under applicable
law
to create in favor of the Collateral Agent for the ratable benefit of the
Secured Parties a valid and enforceable security interest in the Collateral
subject thereto, and will constitute a perfected Lien on and security interest
in all right, title and interest of the Loan Parties in the Collateral subject
thereto, prior and superior to the rights of any other Person (subject only
to
Liens permitted under Section 6.02).
(c) At
all
times on and after the Amendment Effective Date, the Collateral and Guarantee
Requirement is satisfied.
SECTION
3.16. Federal
Reserve Regulations. No part of the proceeds of the Loans will be
used, whether directly or indirectly, for any purpose which entails a violation
(including on the part of any Lender) of Regulation U or X of the
Board.
SECTION
3.17. Solvency. Immediately
after the consummation of the Effective Date Transactions that occurred on
the
Effective Date and immediately following the making of each Loan made on the
Effective Date and after giving effect to the application of the proceeds of
such Loans and to all rights of reimbursement, contribution and subrogation,
(a)
the fair value of the consolidated assets of the Borrower, at a fair valuation,
exceeded its consolidated debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of the consolidated property
of
the Borrower was greater than the amount that would be required to pay the
probable liability of its consolidated debts and other liabilities,
subordinated, contingent or otherwise, as such consolidated debts and other
liabilities become absolute and matured; (c) the Borrower and its Subsidiaries,
on a consolidated
62
basis,
were able to pay their consolidated debts and liabilities, subordinated,
contingent or otherwise, as such consolidated debts and liabilities become
absolute and matured; and (d) the Borrower did not have unreasonably small
capital with which to conduct the business in which it was engaged as such
business was then conducted and was proposed to be conducted following the
Effective Date.
ARTICLE
IV
Conditions
SECTION
4.01. Amendment
Effective Date. The obligations of the Lenders to make Term Loans
pursuant to the amendment and restatement of this Agreement in the form hereof
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with
Section 9.02):
(a) The
Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of the Amendment Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy or electronic transmission of a signed
signature page of the Amendment Agreement) that such party has signed a
counterpart of the Amendment Agreement.
(b) The
Administrative Agent shall have received such documents and certificates as
the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and, to the extent applicable, good standing of the
Loan
Parties, the authorization of the Transactions and any other legal matters
relating to the Loan Parties, the Loan Documents or the Transactions, all in
form and substance reasonably satisfactory to the Administrative Agent and
its
counsel.
(c) The
Administrative Agent shall have received a certificate, dated the Amendment
Effective Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth
in
paragraphs (a), (b) and (c) of Section 4.02.
(d) The
Existing Restated Credit Agreement shall have been amended and restated as
the
Restated Credit Agreement.
(e) The
Administrative Agent shall have received all interest, fees and other
amounts due and payable or accrued on or prior to the Amendment Effective Date
under this Agreement or the Existing Parent Credit Agreement, including, to
the
extent invoiced at least one Business Day prior to the Amendment Effective
Date,
reimbursement or payment of all out-of-pocket expenses (including fees, charges
and disbursements of counsel) required to be reimbursed or paid by the Borrower
under this Agreement or any other Loan Document.
63
(f) Each
Tranche B Lender (as defined in the Existing Parent Credit Agreement) shall
have
received (or, substantially simultaneously with the funding of the Term Loans
on
the Amendment Effective Date, shall receive) payment in full of the principal
of
and interest accrued on each Tranche B Term Loan held by it and all other
amounts owing to it or accrued for its account under the Existing Parent Credit
Agreement, and all interest, fees and other amounts accrued or owing under
each
of the Existing Parent Credit Agreement and the Existing Restated Credit
Agreement, including to the extent invoiced at least one Business Day prior
to
the Amendment Effective Date, reimbursement or payment of all out-of-pocket
expenses (including fees, charges and disbursements of counsel) required to
be
reimbursed or paid by the Borrower thereunder, shall have been (or,
substantially simultaneously with the funding of the Term Loans on the Amendment
Effective Date, shall be) paid in full.
(g) All
consents and approvals required to be obtained from any Governmental Authority
or other Person in connection with the execution of this Agreement shall have
been obtained.
(h) The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Amendment Effective
Date) of each of (i) Xxxxx Xxxx & Xxxxxxxx, New York counsel for the
Borrower and the Subsidiaries, substantially in the form of Exhibit D-1, (ii)
Jones, Walker, Xxxxxxxx, Poitevant, Carrère & Xxxxxxx, L.L.P., U.S. counsel
for the Borrower and the Subsidiaries, substantially in the form of Exhibit
D-2,
and (iii) local counsel in each jurisdiction where a Subsidiary Guarantor,
a
Subsidiary Grantor (as defined in the Collateral Agreement) or a Permitted
Pledgee the Equity Interests in which are being pledged pursuant to the
Collateral Agreement or any Foreign Pledge Agreement is organized, in each
case
in form and substance reasonably satisfactory to the Administrative
Agent.
(i) The
Collateral and Guarantee Requirement shall have been satisfied.
The
Loans
made, the application of the proceeds thereof and the termination of existing
Indebtedness under the Existing Parent Credit Agreement on the Amendment
Effective Date shall be deemed to have occurred as set forth in the Amendment
Agreement. The Administrative Agent shall promptly notify the
Borrower and the Lenders of the Amendment Effective Date, and such notice shall
be conclusive and binding.
SECTION
4.02. Each
Credit Event. The obligation of each Lender to make a Loan, and
of any Issuing Bank to issue, amend, extend or renew a Letter of Credit, is
subject to receipt of the request therefor in accordance herewith and to the
satisfaction of the following conditions:
(a) The
representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct in all material respects on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or extension
of such Letter of Credit, as applicable, except where such representations
and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects as of such earlier date.
(b) At
the
time of and immediately after giving effect to such Borrowing or issuance of
such Letter of Credit, as applicable, the Incurrence Test shall be satisfied
and
no Default shall have occurred and be continuing.
64
(c) At
the
time of and immediately after giving effect to any such Revolving Borrowing
or
issuance of such Letter of Credit, as applicable, the aggregate amount of unused
commitments, if any, existing under the Restated Credit Agreement shall not
exceed $5,000,000.
ARTICLE
V
Affirmative
Covenants
Until
the
Commitments have expired or been terminated and the principal of and interest
on
each Loan and all fees payable hereunder shall have been paid in full, and
all
Letters of Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
and the Administrative Agent that:
SECTION
5.01. Financial
Statements and Other Information. The Borrower will furnish to
the Administrative Agent and each Lender:
(a) within
95 days after the end of each fiscal year of the Borrower, beginning with
fiscal year 2007, an audited consolidated balance sheet of the Borrower and
its
consolidated Subsidiaries and related consolidated statements of income,
stockholders’ equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal
year,
all reported on by Ernst & Young LLP or other registered independent
public accountants of recognized national standing (without a “going concern” or
like qualification or exception and without any qualification or exception
as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition
and
results of operations of the Borrower and its consolidated Subsidiaries on
a
consolidated basis in accordance with GAAP consistently applied;
(b) within
50
days after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower, an unaudited consolidated balance sheet of the Borrower
and its consolidated Subsidiaries and related consolidated statements of income
as of the end of and for such fiscal quarter and related consolidated statements
of income and cash flows for the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently
with any delivery of financial statements under clause (a) or
(b) above, a certificate of a Financial Officer of the Borrower
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the
65
details
thereof and any action taken or proposed to be taken with respect thereto,
(ii) at any time that any Revolving Exposure is outstanding (other than
outstanding Letters of Credit that have been fully cash collateralized in
accordance with Section 2.05(j)), setting forth reasonably detailed calculations
demonstrating compliance with the Financial Covenants, (iii) setting forth
reasonably detailed calculations of Consolidated Net Income, Consolidated
Adjusted Net Income, Consolidated EBITDA, Consolidated Total Assets,
Consolidated Revenues, Equity Proceeds, Restricted Uses and the Restricted
Uses
Basket as at the end of and for the applicable fiscal period, (iv) stating
whether any change in GAAP or in the application thereof has occurred since
the
date of the audited financial statements referred to in Section 3.04 and,
if any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate, and (v) identifying all
Subsidiaries (other than Immaterial Subsidiaries) formed or acquired since
the
end of the previous fiscal quarter and indicating whether each such Subsidiary
is a Restricted Subsidiary or an Unrestricted Subsidiary;
(d) concurrently
with any delivery of financial statements under clause (a) above, a certificate
of the accountants that reported on such financial statements stating whether
they obtained knowledge during the course of their examination of such financial
statements of any Event of Default under Section 6.14 or 6.15 (which certificate
may be limited to the extent required by accounting rules or
guidelines);
(e) at
least
30 days prior to the commencement of each fiscal year of the Borrower, a
detailed consolidated budget for such fiscal year (including a projected
consolidated balance sheet and related consolidated statements of projected
income and cash flow, in each case as of the end of and for such fiscal year,
and setting forth the material underlying assumptions applicable
thereto);
(f) promptly
after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials publicly filed by the Borrower
with the Securities and Exchange Commission or any Governmental Authority
succeeding to any or all of the functions of said Commission (other than
amendments to any registration statement (to the extent such registration
statement, in the form it became effective, is delivered), exhibits to any
registration statement and, if applicable, any registration statement on Form
S-8) and in any case not otherwise required to be delivered to the
Administrative Agent pursuant hereto; and
(g) promptly
following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Borrower or any Restricted
Subsidiary, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender may reasonably request.
SECTION
5.02. Notices
of Material Events. Promptly after any Financial Officer obtains
knowledge thereof, the Borrower will furnish to the Administrative Agent and
each Lender written notice of the following:
(a) the
occurrence of any Default;
(b) the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower
66
or
any
Subsidiary thereof that would reasonably be expected to result in a Material
Adverse Effect;
(c) the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, would reasonably be expected to result
in a Material Adverse Effect; and
(d) any
other
development that results in, or would reasonably be expected to result in,
a
Material Adverse Effect.
Each
notice delivered under this Section shall be accompanied by a statement of
a
Financial Officer or other executive officer of the Borrower setting forth
the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION
5.03. Information
Regarding Collateral. The Borrower will furnish to the
Administrative Agent and the Collateral Agent prompt written notice of any
change (i) in any Loan Party’s legal name, (ii) in any Loan Party’s Federal
Taxpayer Identification Number or identification number, if any, issued to
it by
the jurisdiction under the laws of which it is organized or (iii) in the
jurisdiction of any Loan Party’s organization. The Borrower agrees
not to effect or permit any change referred to in the preceding sentence unless
all filings have been made under the Uniform Commercial Code or otherwise that
are required in order for the Administrative Agent or Collateral Agent, as
applicable, to continue, to the extent existing prior to such change, at all
times following such change to have a valid, legal and perfected security
interest in all the Collateral.
SECTION
5.04. Existence;
Conduct of Business. The Borrower will, and will cause each of
its Restricted Subsidiaries to, do or cause to be done all things necessary
to
preserve, renew and keep in full force and effect (i) its legal existence,
except in the case of any Subsidiary other than PD or PTFI , to the extent
the
failure to do so would not reasonably be expected to have a Material Adverse
Effect, and (ii) the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business,
except to the extent the failure to do so would not reasonably be expected
to
have a Material Adverse Effect; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.03 and is in the case of PTFI subject to Section
9.18(c).
SECTION
5.05. Payment
of Obligations. The Borrower will, and will cause each of its
Restricted Subsidiaries to, pay all Tax liabilities, before the same shall
become delinquent or in default, except where (a)(i) the validity or amount
thereof is being contested in good faith by appropriate proceedings and
(ii) the Borrower or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP or (b) the failure to
make
any such payments, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
SECTION
5.06. Maintenance
of Properties. Except where a failure individually or in the
aggregate to do so would not reasonably be expected to result in a Material
Adverse Effect, the Borrower will, and will cause each of its Restricted
Subsidiaries to, keep and maintain all property material to the conduct of
its
business in good working order and condition, ordinary wear and tear
excepted.
SECTION
5.07. Insurance. The
Borrower will, and will cause each of its Restricted Subsidiaries to, maintain,
with financially sound and reputable insurance
67
companies
insurance in such amounts and against such risks as are customarily maintained
by companies of established repute engaged in the same or similar businesses
operating in the same or similar locations (after giving effect to any
self-insurance reasonable and customary for similarly situated
companies). The Borrower will furnish to the Lenders, upon request of
the Administrative Agent, information in reasonable detail as to the insurance
so maintained.
SECTION
5.08. [intentionally
omitted].
SECTION
5.09. Books
and Records; Inspection and Audit Rights. The Borrower will, and
will cause each of its Restricted Subsidiaries to, keep proper books of record
and account sufficient to permit the preparation of financial statements in
accordance with GAAP. The Borrower will, and will cause each of its
Restricted Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice and during
normal business hours, to visit and inspect its properties, to examine and
make
extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants; provided that,
excluding any such visits and inspections during the continuation of an Event
of
Default, only the Administrative Agent on behalf of the Lenders may exercise
rights under this Section 5.09 and the Administrative Agent shall not exercise
such rights more than two times during any calendar year absent the existence
of
an Event of Default and for one such time the reasonable expenses of the
Administrative Agent in connection with such visit or inspection shall be for
the Borrower’s account; provided, further, that when an Event of
Default exists, the Administrative Agent or any Lender (or any of their
respective representatives) may do any of the foregoing at the reasonable
expense of the Borrower at any time during normal business hours and upon
reasonable advance notice. The Administrative Agent and the Lenders
shall give the Borrower the opportunity to participate in any discussions with
the Borrower’s independent accountants.
SECTION
5.10. Compliance
with Laws; Environmental Reports. (a) The Borrower
will, and will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse
Effect.
(b) Except
where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, the Borrower
will, and will cause its Subsidiaries to, (i) comply, in all material respects
with all Environmental Laws applicable to its operations and properties, (ii)
obtain and renew all permits required by Environmental Laws necessary for its
operations and properties, and (iii) conduct any remedial actions in compliance
with applicable Environmental Laws; provided, however, that the
Borrower and its Subsidiaries shall not be required to undertake any remedial
action or obtain or renew any environmental permit, or comply with any
Environmental Law to the extent that its obligation to do so is being contested
in good faith and by proper proceedings and appropriate reserves, in accordance
with GAAP, are maintained in connection therewith. If the Borrower is
in default of its obligations under this paragraph, the Borrower will, at the
request of the Required Lenders through the Administrative Agent, provide to
the
Lenders within 60 days after such request, at the expense of the Borrower,
an
environmental site assessment report for the properties to which such default
relates, prepared by an environmental consulting firm reasonably acceptable
to
the Administrative Agent and evaluating whether or not Hazardous Materials
are
likely to have been released at or to have adversely affected the property,
or
otherwise resulted in Environmental Liability and the estimated cost of any
compliance or remedial action in connection with such matters.
68
(c) The
Borrower will in good faith and with commercially reasonable efforts, and will
similarly cause each of its Subsidiaries to, in all material respects, operate
its future major new mining projects (including the Tenke Fungurume project)
and
related activities in accordance with applicable IFC Guidelines and World Bank
Guidelines in existence on December 31, 2006, and as referenced in Annex A
to
the ERM Report, as appropriate to the nature of such new major project,
including with respect to the Otomona River at closure; provided,
however, that such requirement will not apply to future major new
mining
projects that are located in the United States or in other jurisdictions where
the applicable rules with respect to environmental issues are generally
equivalent or more stringent than the IFC and World Bank Guidelines referenced
above. With respect to existing operations in Indonesia, the Borrower
will cause PTFI to maintain majority compliance with applicable World Bank
Guidelines and IFC Guidelines in existence on December 31, 2006, except where
noted and accepted in the ERM Report. In addition, the Borrower will
cause PTFI to conduct its operations in accordance with the current
International Council on Mining and Metals’ (ICMM) principles referenced in
Schedule 5.10A, and adhere to ICMM current commitments on World Heritage
properties included in Schedule 5.10B. In addition, FCX will
participate in the Extractive Industries Transparency Initiative dated as of
June 16, 2003.
(d) The
Borrower will, and will cause each of its Restricted Subsidiaries to, in good
faith, use commercially reasonable efforts to work to satisfactorily address
the
open regulatory issues with the Government of Indonesia identified in the ERM
Report (see pages 11 to 14 thereof) and to comply with the commitments made
by FCX in response to the ICCA Phase One Social Audit dated July 2005 as
indicated in Schedule 5.10C.
(e) At
the
request of the Administrative Agent and the Syndication Agent, the Borrower
will, at the Borrower’s expense, have ERM or another consultant reasonably
acceptable to the Administrative Agent and the Syndication Agent review the
Tenke Fungurume project and complete a report (the “TFM Report”) in
respect thereof in scope and detail appropriate for a newly developed mining
project based on the applicable World Bank Guidelines and IFC performance
standards in existence on December 31, 2006. The Borrower will, and
will cause each of its Restricted Subsidiaries to, in good faith, use
commercially reasonable efforts to work to satisfactorily address any open
regulatory issues (consistent with the Amended and Restated Mining Convention
dated September 28, 2005) with any Governmental Authority identified in the
TFM
Report.
(f) The
Lenders shall have the right, at Borrower’s expense, to have ERM or another
consultant reasonably acceptable to the Borrower update each of the ERM Report
and the TFM Report once during the term of this facility. The
Borrower will promptly and in good faith report to the Agents and the
Lenders any unanticipated material adverse environmental, social or health
and
safety developments.
SECTION
5.11. Use
of
Proceeds and Letters of Credit. The proceeds of the Term Loans,
together with cash will be used to repay all the Tranche B Term Loans
outstanding under the Existing Parent Credit Agreement. Letters of
Credit and the proceeds of the Revolving Loans and Swingline Loans drawn after
the Effective Date will be used for working capital and other general corporate
purposes of the Borrower and its Subsidiaries. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation (including on the part of any Lender) of
Regulation U or X of the Board. FCX shall ensure that at all times
not more than 25% of the value of the assets subject to the provisions of
Sections 6.02 and 6.05 will consist of Margin Stock (as defined in Regulation
U
of the Board); provided that FCX may
69
permit
such Margin Stock to exceed 25% of the value of the assets subject to the
provisions of Sections 6.02 and 6.05 if FCX shall have otherwise put into place
currently effective arrangements to ensure compliance with Regulation U and
X
and the Administrative Agent shall have received an opinion satisfactory to
it
as to such compliance from a law firm satisfactory to the Administrative
Agent.
SECTION
5.12. Additional
Subsidiaries. If any additional Restricted Subsidiary is formed
or acquired during any fiscal quarter after the Effective Date, the Borrower
will, within 60 days (or such longer period as the Administrative Agent may
agree in writing) after the end of such fiscal quarter, notify the
Administrative Agent, the Collateral Agent and the Lenders thereof and cause
the
Collateral and Guarantee Requirement to be satisfied to the extent applicable
with respect to such Restricted Subsidiary and any intercompany Indebtedness
owed by such Subsidiary to the Borrower.
ARTICLE
VI
Negative
Covenants
Until
the
Commitments have expired or terminated and the principal of and interest on
each
Loan and all fees payable hereunder have been paid in full, and all Letters
of
Credit shall have expired or terminated and all LC Disbursements shall have
been
reimbursed, the Borrower covenants and agrees with the Lenders and the
Administrative Agent that:
SECTION
6.01. Indebtedness;
Certain Equity Securities. (a) The Borrower will not,
and will not permit any Restricted Subsidiary to, create, incur, assume or
permit to exist any Indebtedness or Attributable Debt, except:
(i) (A)
Indebtedness created under the Loan Documents, (B) Indebtedness created under
the Restated Credit Agreement and the “Loan Documents” thereunder in an
aggregate principal amount not in excess of the revolving commitments of the
lenders under the Restated Credit Agreement on the Effective Date and (C)(1)
Ratable Guarantees of Ratable Obligations by the Loan Parties and (2)
Indebtedness arising pursuant to Ratable Liens securing Ratable
Obligations;
(ii) Indebtedness,
including Guarantees, existing on the Effective Date and set forth in
Schedule 6.01;
70
(iii) Indebtedness
of the Borrower to any Restricted Subsidiary and of any Restricted Subsidiary
to
the Borrower or any other Restricted Subsidiary; provided that any such
Indebtedness owing to FCX shall, to the extent that any such Indebtedness from
any single obligor to any single obligee exceeds $25,000,000 in aggregate
principal amount, be evidenced by a promissory note that shall have been pledged
pursuant to the Collateral Agreement;
(iv) secured
or unsecured Indebtedness of the Borrower or any Restricted Subsidiary and
Attributable Debt in respect of sale and leaseback transactions permitted by
Section 6.06(a), in each case incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital
Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior
to
the acquisition thereof but excluding Project Financings; provided that
(A) any such Indebtedness or Attributable Debt is incurred within 180 days
prior to or within 180 days after such acquisition or the completion of
such construction or improvement and (B) any such Attributable Debt is
incurred in accordance with Section 6.06; and providedfurther
in each case that (1) no Event of Default shall have occurred and be continuing
or would result therefrom and (2) immediately after giving effect to the
incurrence thereof, the Incurrence Test would be satisfied;
(v) Project
Financings and Guarantees thereof in each case by the direct or indirect parent
or parents of the applicable Project Financing Subsidiary, provided in
each case that (A) no Event of Default shall have occurred and be continuing
or
would result therefrom and (B) immediately after giving effect to the incurrence
thereof, the Incurrence Test would be satisfied;
(vi) in
the
case of FCX, the Senior Notes;
(vii) unsecured
Guarantees of FCX or PTFI of obligations of a purchaser in an FCX Assisted
PTFI
Sale to lenders providing financing for such sale in an aggregate amount not
at
any time in excess of (x) the aggregate amount of cash consideration received
by
FCX or any Restricted Subsidiary for such FCX Assisted PTFI Sale minus
(y) the aggregate amount of payments theretofore made in respect of principal
obligations under such Guarantee;
(viii) letters
of credit in connection with environmental assurances and reclamation in an
aggregate face amount not exceeding $700,000,000 at any time
outstanding;
(ix) unsecured
Indebtedness of FCX or any Loan Party, provided that all the Net Proceeds
thereof are applied promptly to prepay Term Loans in accordance with Section
2.10(a);
(x) other
Indebtedness of FCX, provided that (A) no Event of Default shall have
occurred and be continuing or would result therefrom and (B) immediately after
giving effect to the incurrence thereof, the Incurrence Test would be
satisfied;
(xi) other
Indebtedness of the Restricted Subsidiaries and Attributable Debt in respect
of
sale and leaseback transactions permitted pursuant to Section 6.06(c) in an
aggregate principal amount at any time outstanding, taken together with all
outstanding secured Indebtedness of FCX incurred under clause (x), not
71
in
excess
of the greater of $1,500,000,000 and 8% of Consolidated Total Assets,
provided that (1) no Event of Default shall have occurred and be
continuing or would result therefrom and (2) immediately after giving effect
to
the incurrence thereof, the Incurrence Test would be satisfied; and
(xii) Permitted
Refinancings of Indebtedness or Attributable Debt outstanding under clauses
(i)(C) (in connection with a Permitted Refinancing of the related Indebtedness),
(ii), (iv), (v), (vi), (vii), (ix) and (x).
Notwithstanding
the foregoing or any other provision hereof, (1) no Restricted Subsidiary shall
Guarantee the Senior Notes, and (2) no Receivables Facility shall be established
under which assets of PTFI or its subsidiaries are included.
(b) The
Borrower will not permit PTFI nor any other Restricted Subsidiary to issue
any
preferred stock or other preferred Equity Interests; provided that PTFI
and any Restricted Subsidiary may issue preferred stock or other preferred
Equity Interests in an aggregate stated amount not in excess of $500,000,000;
provided that no such preferred stock or preferred Equity Interests shall
be subject to any redemption, repurchase or defeasance requirement prior to
the
date six months after the Tranche A Maturity Date.
SECTION
6.02. Liens. The
Borrower will not, and will not permit any Restricted Subsidiary to, create,
incur, assume or permit to exist any Lien on any property or asset now owned
or
hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:
(a) Liens
created under or specifically required by the Loan Documents securing some
or
all of the Obligations; Ratable Liens created under or specifically required
by
the Loan Documents securing the Ratable Obligations (provided that each
such Ratable Lien on any asset shall by its terms automatically be released
upon
the release of the Lien on such asset securing the Secured Obligations); and
Liens created under or specifically required by the FI
Security Documents or the Restated Credit Agreement securing some or
all of the FI Obligations;
(b) Permitted
Encumbrances;
(c) any
Lien
on any property or asset of the Borrower or any Restricted Subsidiary existing
on the Effective Date and set forth in Schedule 6.02; provided that
(i) such Lien shall not apply to any other property or asset of the
Borrower or any Restricted Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the Effective Date and extensions,
renewals and replacements thereof that do not increase the outstanding principal
amount thereof by more than the amount of accrued interest thereon and fees,
expenses and premiums paid in connection with such extension, renewal or
replacement;
(d) Liens
on
fixed or capital assets acquired, constructed or improved by the Borrower or
any
Restricted Subsidiary; provided that (A) such Liens secure
Indebtedness or Attributable Debt permitted by clause (iv) of Section 6.01(a)
or
extensions, renewals or replacements thereof permitted by Section 6.01(a)(xii),
(B) such Liens (or the Liens securing the Indebtedness or Attributable Debt
so
extended, renewed or replaced) and the Indebtedness secured thereby are incurred
within 180 days prior to or within 180 days after such acquisition or the
completion of such acquisition, construction or improvement, (C) the
72
Indebtedness
or Attributable Debt secured thereby does not exceed by more than a
de minimis amount the cost of acquiring, constructing or improving such fixed
or
capital assets and (D) such Liens shall not apply to any other property or
assets of the Borrower or any Restricted Subsidiary;
(e) Liens
securing any Project Financing or any Guarantee thereof by any direct or
indirect parent of the applicable Project Financing Subsidiary; provided
that (A) such Liens secure only Indebtedness or Attributable Debt permitted
by
Section 6.01(a)(v) or extensions, renewals or replacements thereof permitted
by
Section 6.01(a)(xii) and (B) such Liens do not apply to any property or assets
of the Borrower or any Restricted Subsidiaries other than the assets of the
applicable Project Financing Subsidiary and Equity Interests in the applicable
Project Financing Subsidiary or any direct or indirect parent thereof that
holds
no significant assets other than direct or indirect ownership interests in
such
Project Financing Subsidiary or assets related to, or ownership interests in
Subsidiaries that hold assets related to, the operations of such Project
Financing Subsidiary;
(f) required
margin deposits on, and other Liens on assets (other than Equity Interests)
of
the Borrower or any Restricted Subsidiary securing obligations under, Hedging
Agreements permitted hereunder;
(g) Liens
on
property, other assets or shares of stock of a Person at the time such Person
becomes a Restricted Subsidiary (or at the time the Borrower or a Restricted
Subsidiary acquires such property, other assets or shares of stock, including
any acquisition by means of a merger, consolidation or other business
combination transaction with or into any Restricted Subsidiary);
provided, however, that such Liens are not created, incurred or
assumed in anticipation of or in connection with such other Person becoming
a
Restricted Subsidiary (or such acquisition of such property, other assets or
stock); and provided, further, that such Liens are limited to all
or part of the same property, other assets or stock (plus improvements,
accession, proceeds or dividends or distributions in connection with the
original property, other assets or stock) that secured the obligations to which
such Liens relate;
(h) Liens
on
assets or property of any Restricted Subsidiary (other than any Loan Party)
securing Indebtedness or other obligations of such Restricted Subsidiary owing
to the Borrower or another Restricted Subsidiary;
(i) Liens
securing any Permitted Refinancing of Indebtedness or Attributable Debt that
was
previously so secured, and permitted to be secured under this Agreement;
provided that any such Lien is limited to all or part of the same
property or assets (plus improvements and accessions thereto) that secured
the
Indebtedness or Attributable Debt being refinanced at the time of such
refinancing;
(j) Liens
incurred with respect to obligations (other than Indebtedness for borrowed
money) which do not exceed $500,000,000 at any one time
outstanding;
(k) Liens
on
Equity Interests or other securities or assets of any Unrestricted Subsidiary
that secure Indebtedness of such Unrestricted Subsidiary;
(l) Liens
on
amounts not to exceed the sum of up to three years of regularly
scheduled interest payments in respect of Indebtedness of the Borrower permitted
hereby, which amounts shall have been placed in interest reserve
73
accounts
in connection with the issuance of such Indebtedness to secure the obligations
under such Indebtedness;
(m) the
RTZ
Interests;
(n) Liens
on
cash, Permitted Investments and other assets securing (i) letters of credit
permitted pursuant to Section 6.01(a)(viii) and (ii) environmental assurance
and
reclamation claims, provided that the aggregate amount of cash, Permitted
Investments and other assets subject to such Liens under this paragraph (n)
shall not at any time exceed $700,000,000;
(o) Liens
not
expressly permitted by clauses (a) through (n) securing Indebtedness permitted
pursuant to Section 6.01(a)(x) or (xi) and Attributable Debt in respect of
sale
and leaseback transactions permitted pursuant to Section 6.06(c),
provided that such Liens are created in connection with the incurrence of
such Indebtedness. and
(p) Liens
on
the receivables, metals and related assets subject to any Receivables Facility,
Metalstream Transaction or other Indebtedness included in clause (j) of the
definition of “Indebtedness”.
SECTION
6.03. Fundamental
Changes. (a) The Borrower will not, nor will it permit
any Restricted Subsidiary to, effect any Proscribed
Consolidation. “Consolidation” means the merger,
consolidation, liquidation or dissolution of any Person with or into any other
Person or the sale, transfer, lease or other disposition of all or substantially
all the assets of any Person to another Person. “Proscribed
Consolidation” means any Consolidation of (i) PD and FCX or (ii) any of (A)
on the one hand, PTFI, PD Morenci, Cyprus Climax Metals Company, Xxxxxx Dodge
Exploration Company, O&C Holdco or any of their subsidiaries, and (B) on the
other hand, FCX or PD. “Proscribed Consolidation” shall also
mean any merger or consolidation involving FCX in which FCX is not the surviving
Person (the “Successor Company”) unless (1) the Successor Company will be
a corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and the Successor Company
will expressly assume, by an agreement executed and delivered to the
Administrative Agent, in form reasonably satisfactory to the Administrative
Agent, all the obligations of FCX under the Loan Documents; and (2) immediately
after giving effect to such transaction (and treating any Indebtedness which
becomes an obligation of the Successor Company or any Restricted Subsidiary
as a
result of such transaction as having been incurred by the Successor Company
or
such Restricted Subsidiary at the time of such transaction), (A) no Event of
Default shall have occurred and be continuing or would result therefrom and
(B)
immediately after giving effect to such incurrence, the Incurrence Test would
be
satisfied.
(b) The
Borrower will not, nor will it permit any Restricted Subsidiary to, merge into
or consolidate with any other Person, or permit any other Person to merge into
or consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Event of Default shall
have occurred and be continuing, (i) any Restricted Subsidiary may merge into
any other Restricted Subsidiary in a transaction in which the surviving entity
is a Restricted Subsidiary and (ii) any Restricted Subsidiary that is not
owned directly by FCX, any Immaterial Subsidiary and any Subsidiary engaged
primarily in exploration activities may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders;
provided
74
that
such
transaction shall not constitute a Proscribed Consolidation and the surviving
corporation in any merger involving a Loan Party shall be a Loan
Party.
(c) FCX
will
not engage in any business or activity other than (i) the ownership of (A)
outstanding Equity Interests in Subsidiaries that are pledged as Collateral
to
the extent required by the Collateral and Guarantee Requirement (subject to
the
Collateral and Guarantee Minimum Requirement), (B) Indebtedness owed by
Subsidiaries that is pledged as Collateral, (C) cash and Permitted Investments
that with deminimis exceptions is pledged as Collateral and held
in accounts subject to control agreements for the benefit of the Secured
Parties, (D) other cash and Permitted Investments securing letters of credit
permitted pursuant to Section 6.01(a)(viii), and (E) other assets the aggregate
book value of which is not in excess of $100,000,000; (ii) the issuance of
Equity Interests, the making of Restricted Payments, the incurrence of
Indebtedness and the making of Investments in Subsidiaries, in each case to
the
extent not otherwise prohibited hereunder; and (iii) corporate maintenance
activities associated with being a public company and with being a holding
company for a consolidated group and other deminimis activities as
are customary for public holding companies that are similarly situated
(including, without limitation, the employment of certain
employees).
(d) Xxxxxx
Dodge Morenci, Inc. will not engage in any business or activity other than
the
ownership, operation and financing of the mining interests and business in
Morenci, Arizona, which it owns and engages in on the Effective Date and
extensions, expansions, improvements and modifications thereof in locations
in
which Xxxxxx Dodge Morenci, Inc. has interests on the Effective Date and
interests contiguous or in reasonable proximity thereto (collectively, the
“Morenci Property”) (the “Morenci Business”). For the
avoidance of doubt, the Morenci Business includes the mining, milling and
leaching of mineral bearing material and the production of copper and molybdenum
concentrates, copper precipitates and electrowon copper cathode at the Morenci
Property, any exploration, development or other capital programs relating to
the
Morenci Property and any activities incidental to any of the
foregoing. Xxxxxx Dodge Morenci, Inc. will not own or acquire any
assets (other than the Morenci Business and assets incidental thereto, including
cash and Permitted Investments) or incur any liabilities (other than liabilities
imposed by law, including tax liabilities, and other liabilities incidental
to
its existence and the Morenci Business (including Indebtedness to fund the
operation, development, expansion, improvement or enhancement of the Morenci
Business).
(e) For
the
avoidance of doubt, the limitations set forth in paragraphs (a) through (d)
above shall not limit the sale, transfer, lease or other disposition of
equipment between Restricted Subsidiaries in the ordinary course of business
or
sales, transfers, leases or other dispositions of assets (other than in the
case
of a Proscribed Consolidation) (i) from Subsidiary Guarantors to Subsidiary
Guarantors, (ii) from non-Subsidiary Guarantors to Subsidiary Guarantors, (iii)
from Subsidiary Guarantors to Restricted Subsidiaries and joint ventures of
Subsidiary Guarantors or (iv) from non-Subsidiary Guarantors to non-Subsidiary
Guarantors, so long as, in the case of sales, transfers, leases or other
dispositions to non-Subsidiary Guarantors, a Subsidiary other than PD that
directly or indirectly holds such transferee as a subsidiary is a Guarantor
or
the Equity Interests in which are pledged as Collateral to the extent required
under clause (b) or (d), as applicable, of the definition of Collateral and
Guarantee Requirement.
(f) The
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
engage to any material extent in any business other than businesses of the
type
conducted by the Borrower and its Restricted Subsidiaries on the Effective
Date
and businesses reasonably related thereto.
75
SECTION
6.04. Investments
in Unrestricted Subsidiaries. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, purchase, hold, make or acquire
(including pursuant to any merger and including each increase to the
Unrestricted Subsidiary LC Exposure) any Investment in any Unrestricted
Subsidiary, except to the extent that after giving effect to any such
Investment, (A) the Incurrence Test would be satisfied and (B) either (x) the
Unrestricted Subsidiary Investment Amount shall not exceed 1% of Consolidated
Total Assets, or (y) if the Unrestricted Subsidiary Investment Amount shall
exceed 1% of Consolidated Total Assets, or to the extent resulting in the
Unrestricted Subsidiary Investment Amount exceeding 1% of Consolidated Total
Assets, such Investment shall constitute a Restricted Use and the Restricted
Uses shall not exceed the Restricted Uses Basket. In connection with
each such Investment that exceeds $25,000,000, the Borrower shall deliver to
the
Administrative Agent (x) written notice of such Investment and (y) a
certificate, dated the effective date of such Investment, of a Financial Officer
stating that no Event of Default has occurred and is continuing, specifying
whether such Investment is made in reliance on clause (x) or (y) of the
immediately preceding sentence and setting forth reasonably detailed
calculations demonstrating compliance with the requirements of clauses (A)
and
(B) of such sentence.
SECTION
6.05. Asset
Sales. (a) The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, sell, transfer, lease or otherwise
dispose of all or substantially all the assets of FCX and the Restricted
Subsidiaries.
(b) The
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
sell, transfer, lease or otherwise dispose of any asset, including any Equity
Interest owned by it, nor will the Borrower permit any of its Restricted
Subsidiaries to issue any additional Equity Interest in such Restricted
Subsidiary, except:
(i) sales
of
inventory, used or surplus equipment and Permitted Investments in the ordinary
course of business;
(ii) sales,
transfers and dispositions to the Borrower or a Restricted Subsidiary;
provided that any such sales, transfers or dispositions between a Loan
Party and a Subsidiary that is not a Loan Party shall be made in compliance
with
Section 6.03;
(iii) any
sale
or issuance of Transferred Shares in a Qualifying PTFI Sale
Transaction;
(iv) sales
of
assets as part of a sale and leaseback transaction permitted by
Section 6.06;
(v) any
sale
of Equity Interests in Restricted Subsidiaries to PT-Rio Tinto Indonesia;
provided that such sale is made pursuant to Section 3.6 of the
Participation Agreement; providedfurther that any such Restricted
Subsidiary shall continue to comply with the Collateral and Guarantee
Requirement;
(vi) any
sale
of Equity Interests in Unrestricted Subsidiaries;
(vii) sales,
transfers and other dispositions of assets that are not permitted by any other
clause of this paragraph (b), subject to the Incurrence Test; and
(viii) dispositions
of receivables, metals and related assets subject to any Receivables Facility,
Metalstream Transaction or other Indebtedness included in clause (j) of the
definition of “Indebtedness”;
76
provided
that:
|
(A)
|
except
as permitted under Section 6.05(c), no such sale, transfer, lease
or other
disposition of any Equity Interests in any Loan Party (subject in
the case
of PTFI to clause (iii) above) or any Wholly Owned Subsidiary of
FCX the
Equity Interests in which are pledged under a Security Document shall
be
permitted unless such Equity Interests constitute all the Equity
Interests
in such Subsidiary held by FCX and the Restricted Subsidiaries;
and
|
|
(B)
|
all
sales, transfers, leases and other dispositions permitted hereby
(other
than those permitted by clauses (i), (ii) and (iii) above) shall be
made for fair value and for (I) 100% cash consideration in the case
of transactions permitted by clause (iv), and (II) at least 75% cash
consideration in the case of transactions permitted by clauses (v),
(vi)
and (vii); provided, however, that for the purposes of this
paragraph (B), (1) any Permitted Investments received as consideration,
(2) any liabilities (as shown on the most recent consolidated balance
sheet of FCX provided hereunder or in the footnotes thereto) of FCX
or the
applicable Restricted Subsidiary, other than with respect to Indebtedness
that is not secured by the assets disposed of, that are assumed by
the
transferee with respect to the applicable disposition and for which
FCX
and all of the Restricted Subsidiaries shall have been validly released
by
all applicable creditors, (3) any securities received by FCX or such
Restricted Subsidiary from such transferee that are converted by
FCX or
such Restricted Subsidiary into cash (to the extent of the cash received)
within 180 days following the closing of the applicable disposition
and
(4) any Designated Noncash Consideration received by FCX or such
Restricted Subsidiary in respect of such disposition having an aggregate
fair market value, taken together with all other Designated Noncash
Consideration received pursuant to this clause (4) that is at that
time
outstanding, not in excess of the greater of $500,000,000 and 1.5%
of
Consolidated Total Assets at the time of the receipt of such Designated
Noncash Consideration, with the fair market value of each item of
Designated Noncash Consideration being measured at the time received
and
without giving effect to subsequent changes in value, shall in each
case
of clauses (1), (2), (3) and (4) be deemed to be
cash.
|
(c) Notwithstanding
any other provision of this Agreement or any other Loan Document:
(i) PTFI
will
not sell, transfer, lease or otherwise dispose of the Contract of Work or any
rights thereunder; and
(ii) FCX
or
PTII may not sell, transfer or otherwise dispose of Equity Interests in PTFI,
and PTFI may not issue additional Equity Interests (each a “PTFI Share
Sale”), except that this clause (ii) shall not prohibit any PTFI Share Sale
if after giving effect thereto FCX holds, directly or indirectly, PTFI Shares
representing at least 50.1% of all the Equity Interests in PTFI.
SECTION
6.06. Sale
and Leaseback Transactions. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real
or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent
77
or
lease
such property or other property that it intends to use for substantially the
same purpose or purposes as the property sold or transferred, except for (a)
any
such sale and leaseback of any fixed or capital assets that is made for cash
consideration in an amount not less than the cost of such fixed or capital
asset
and is consummated within 180 days after the Borrower or such Restricted
Subsidiary acquires or completes the construction of such fixed or capital
asset; (b) any such sale and leaseback of Project Financing Assets as part
of a
Project Financing, provided in each case that such sale and leaseback is
solely for cash; and (c) any sale and leaseback of fixed or capital assets;
provided that the aggregate amount of the Attributable Debt in respect of
such sale and leaseback transactions under this clause (c) at any time
outstanding, taken together with all outstanding secured Indebtedness of FCX
incurred under Section 6.01(a)(x) and all Indebtedness incurred pursuant to
Section 6.01(a)(xi), shall not exceed the greater of $1,500,000,000 and 8%
of Consolidated Total Assets; provided in each case under
clauses (a), (b) and (c) that (A) no Event of Default shall have occurred and
be
continuing or would result therefrom and (B) immediately after giving effect
to
the incurrence thereof, the Incurrence Test would be satisfied.
SECTION
6.07. Hedging
Agreements. The Borrower will not, and will not permit any of its
Restricted Subsidiaries to, enter into any Hedging Agreement, other than Hedging
Agreements entered into in the ordinary course of business to hedge or protect
against actual or reasonably anticipated risks to which the Borrower or any
Restricted Subsidiary is exposed in the conduct and financing of its business,
and not in any event for speculation.
SECTION
6.08. Restricted
Payments; Certain Payments of Indebtedness. (a) The
Borrower will not, nor will it permit any Restricted Subsidiary to, declare
or
make, or agree to pay or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, except
(i) Restricted
Subsidiaries may declare and pay dividends ratably with respect to their capital
stock (A) to shareholders other than FCX, (B) to FCX to the extent the proceeds
of such dividends are applied to pay operating expenses in the ordinary course
of business, and (C) to FCX so long as (1) no Event of Default under clause
(a)
or (b) of Article VII shall have occurred and be continuing and (2) if any
Event
of Default other than under clause (a) or (b) of Article VII shall have occurred
and be continuing (or shall result from the payment thereof), so long as the
Required Lenders shall not have given notice to FCX that such dividends shall
not be permitted to be paid during the pendency of such Event of
Default,
(ii) so
long
as no Event of Default shall have occurred and be continuing (or shall result
from the payment thereof), FCX may pay regularly scheduled quarterly dividends
in respect of its preferred stock issued and outstanding on the Effective Date
and effect regularly scheduled mandatory redemptions of its preferred stock
issued and outstanding on the Effective Date, in each case, to the extent and
in
the amounts required by the terms of such preferred stock as in effect on the
Effective Date,
(iii) so
long
as no Event of Default shall have occurred and be continuing (or shall result
from the payment thereof), FCX may, consistent with its dividend practices
as of
the Effective Date, and subject to the Incurrence Test, declare and pay
dividends on its shares of common stock (and on shares of common stock issued
upon the conversion of or in exchange for shares of FCX’s 5 1/2% Convertible
Perpetual Preferred Stock outstanding on the Effective Date) in an
78
amount
in
respect of any fiscal quarter not to exceed $0.3125 per share of FCX’s common
stock (adjusted as applicable to eliminate the effect of stock dividends, stock
splits, reverse stock splits and other transactions in respect of such shares
of
common stock, and payable in respect of any shares of common stock received
pursuant to any such stock dividend, stock split, reverse stock split or other
transaction) (it being understood that Restricted Payments made in reliance
on
this clause (iii) in respect of shares of FCX’s common stock issued or sold
after the Effective Date (or in respect of shares received in stock dividends,
stock splits, reverse stock splits or other transactions in respect of such
shares of common stock) involving either (x) a receipt of cash proceeds that
increased the Restricted Uses Basket or (y) the receipt of assets in
consideration for such common stock shall constitute Restricted Uses and shall
reduce the Restricted Uses Basket (which reduction may be to less than zero)),
and
(iv) so
long
as no Event of Default shall have occurred and be continuing (or shall result
from the payment thereof), and subject to the Incurrence Test, FCX may make
Restricted Payments in cash in any amounts to the extent that, immediately
after
giving effect thereto (and to any expenditure of cash required thereby), the
Restricted Uses would not be greater than the Restricted Uses
Basket.
(b) The
Borrower will not, nor will it permit any Restricted Subsidiary to, make,
directly or indirectly, any voluntary payment or other voluntary distribution
(whether in cash, securities (other than common stock of FCX) or other property)
of or in respect of principal of or interest on any Indebtedness, or any
voluntary payment or other voluntary distribution (whether in cash, securities
(other than common stock of FCX) or other property), including any sinking
fund
or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancelation or termination of any Indebtedness,
except:
(i) payment
of Indebtedness created under the Loan Documents and payment of Ratable
Obligations and Existing PD Obligations;
(ii) payment
of regularly scheduled interest and principal payments as and when due in
respect of any Indebtedness, other than payments in respect of Indebtedness
prohibited by the subordination provisions thereof;
(iii) refinancings
of Indebtedness to the extent permitted by Section 6.01(a) (including,
without limitation, the refinancing of any Indebtedness, other than the Senior
Notes, with Indebtedness permitted under Section 6.01(a)(xi));
(iv) payment
of secured Indebtedness that becomes due as a result of the sale or transfer
of
the property or assets securing such Indebtedness;
(v) prepayments
of Indebtedness owed to FCX by a Restricted Subsidiary or owed to a Restricted
Subsidiary by FCX or another Restricted Subsidiary, provided that
prepayments of Indebtedness owed to a Restricted Subsidiary that is not a Loan
Party shall be permitted only to the extent no Event of Default has occurred
and
is continuing at the time of such prepayment, except that such prepayments
shall
be permitted (A) to the extent the proceeds of such prepayments are applied
to
pay operating expenses or to make Capital Expenditures in the ordinary course
of
business, and (B) to the extent the proceeds of such prepayments are applied
to
pay scheduled debt service of such Restricted
79
Subsidiary
so long as (1) no Event of Default under clause (a) or (b) of Article VII shall
have occurred and be continuing and (2) if any Event of Default other than
under
clause (a) or (b) of Article VII shall have occurred and be continuing (or
shall
result from the payment thereof), so long as the Required Lenders shall not
have
given notice to FCX that such prepayments shall not be permitted to be paid
during the pendency of such Event of Default;
(vi) prepayments
of any Project Financing to the extent made by the applicable Project Financing
Subsidiary with cash from the operations of such Project Financing
Subsidiary;
(vii) payments
of Indebtedness (other than Indebtedness referred to in clause (viii) below)
that are not permitted by clauses (i)-(vi) of this Section 6.08(b) if and
to the extent that after giving effect to any such payments, the Restricted
Uses
would not be greater than the Restricted Uses Basket; and
(viii) payment
of Indebtedness created under the Restated Credit Agreement and the “Loan
Documents” thereunder, provided that no Indebtedness may be prepaid under
the Restated Credit Agreement (A) at any time that any Loan or LC Disbursement
is outstanding and (B) if there is outstanding any Letter of Credit or Letters
Credit in an aggregate outstanding amount smaller than such prepayment, unless
such Letter of Credit or Letters of Credit are redesignated as Letters of Credit
under the Restated Credit Agreement in accordance with Section
2.05(a)(iii).
(c) Neither
paragraph (a) nor paragraph (b) above shall prohibit any Restricted Payment
or
payment of Indebtedness if after giving effect to such Restricted Payment or
payment of Indebtedness (i) no Term Loan is outstanding and (ii) the sum of
(A)
the aggregate unused Revolving Commitments, (B) the aggregate unused Commitments
(as defined in the Restated Credit Agreement) and (C) Available Domestic Cash
shall be not less than $750,000,000.
(d) Each
of
paragraph (a) and paragraph (b) above shall cease to be of effect from and
after
the first date upon which the corporate credit ratings of FCX by each of Xxxxx’x
and S&P are, respectively, Baa3 or better and BBB- or better.
SECTION
6.09. Transactions
with Affiliates. (a) The Borrower will not, nor will
it permit any Restricted Subsidiary to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property
or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (i) transactions in the ordinary course of business at
prices and on terms and conditions not less favorable to the Borrower or such
Restricted Subsidiary than could be obtained on an arm’s-length basis from
unrelated third parties; provided that transactions involving payments or
transfers having a cumulative aggregate value of not more than $50,000,000
may
be other than on an arm’s-length basis so long as the board of directors of FCX
has determined the transaction is in the best interests of the Borrower,
(ii) transactions among the Borrower and its Restricted Subsidiaries and
(iii) any Restricted Payment permitted by Section 6.08.
(b) PTFI
will
not make any contribution or transfer of the Contract of Work or any rights
thereunder to FCX, any Restricted Subsidiary or any other
Affiliate.
SECTION
6.10. Restrictive
Agreements. The Borrower will not, nor will it permit any
Restricted Subsidiary to, directly or indirectly, enter into, incur or permit
to
80
exist
any
agreement or other arrangement that prohibits, restricts or imposes any
condition upon the ability of the Borrower or any Restricted Subsidiary to
create, incur or permit to exist any Lien to secure the Obligations, the Secured
Obligations and the FI Obligations (or any refinancing, restructuring or
replacement thereof (other than with subordinated Indebtedness)) upon any of
its
property or assets; provided that (i) the foregoing shall not apply to
restrictions and conditions (A) imposed by applicable laws, rules or
regulations, (B) under the Loan Documents, (C) existing on the date hereof
under
the Restated Credit Agreement (or the “Loan Documents” thereunder) or under the
Senior Notes Documents (or to restrictions and conditions contained in the
documentation for Indebtedness permitted to be incurred hereunder at the time
incurred that are no more restrictive than such restrictions and conditions
contained in the Senior Notes Documents) or (D) identified on Schedule 6.10
(but
shall apply to any amendment or modification expanding the scope of any such
restriction or condition), (ii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of
any
asset or a Restricted Subsidiary pending such sale; provided such
restrictions and conditions apply only to the asset or Restricted Subsidiary
that is to be sold and such sale is permitted hereunder, (iii) the foregoing
shall not apply to restrictions and conditions imposed (A) by any agreement
relating to any Indebtedness permitted hereunder of any Restricted Subsidiary
that is a Foreign Subsidiary (other than a Loan Party) to the extent applicable
to the assets of such Foreign Subsidiary or any of its Foreign Subsidiaries,
(B)
by any joint venture, partnership or similar arrangement to which any Restricted
Subsidiary is a party to the extent applicable to such joint venture,
partnership or similar arrangement or direct or indirect interests therein,
(C)
by any Indebtedness permitted under Section 6.01(a)(ii) and any refinancing
thereof (but shall in the case of this clause (C) apply to any amendment or
modification expanding the scope of any such restriction or condition) or (D)
in
connection with any Receivables Facility to the extent determined by the
Borrower to be necessary or desirable in connection with the implementation
thereof, (iv) the foregoing shall not apply to (A) restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (B) restrictions or conditions imposed by
any
agreement relating to secured Indebtedness permitted by Section 6.01(a)(iv),
(v), (xi) or (xii), or refinancings thereof, if such restrictions or conditions
apply only to the fixed or capital assets the acquisition, construction or
improvement of which was financed with such Indebtedness (or the Indebtedness
refinanced with such Indebtedness), (C) customary provisions in leases
restricting the assignment thereof, and (D) restrictions imposed by Sections
7.2.5 and 7.3 of the Participation Agreement, and (v) the foregoing shall not
prohibit any such agreement or other arrangement applicable to the granting
after the Amendment Effective Date of a Lien on any asset to secure the
Obligations, the Secured Obligations and the FI Obligations (or any refinancing,
restructuring or replacement thereof) that would permit such Lien subject only
to the grant of an equal and ratable Lien on such asset to secure the
obligations under such agreement or other arrangement.
SECTION
6.11. Amendment
of Material Documents. (a) The Borrower will not, nor
will it permit any Restricted Subsidiary to, amend, modify or waive any of
its
rights under, or terminate, suspend or enter into any agreement relating to,
(i) its certificate of incorporation, by-laws or other organizational
documents, (ii) the Senior Notes Documents or (iii) the Contract of Work,
in each case that could reasonably be expected to be adverse in any significant
respect to the interests or rights of the Lenders.
(b) The
Borrower will not, nor will it permit PTFI to, without the prior approval of
the
Required Revolving Lenders, amend, modify or waive any of its rights under
the
Restated Credit Agreement if the effect would be to reduce the available
Revolving Commitments (as defined in the Restated Credit
Agreement).
81
SECTION
6.12. Fiscal
Year. The Borrower will not change its fiscal year to end on any
date other than December 31.
SECTION
6.13. Designation
of Unrestricted Subsidiaries. (a) The Borrower may
designate a Restricted Subsidiary (other than PD or PTFI) as an Unrestricted
Subsidiary (a “Designation”) only if:
(i) such
Subsidiary does not own any Equity Interests of any Restricted
Subsidiary;
(ii) no
Event
of Default shall have occurred and be continuing at the time of or after giving
effect to such Designation;
(iii) after
giving effect to such Designation and any related Investment to be made in
such
designated Subsidiary by the Borrower or any Restricted Subsidiary (which shall
in any event include an existing Investment in such Subsidiary deemed to be
equal to the net book value of such Subsidiary at the time it is designated
as
an Unrestricted Subsidiary), (A) the Incurrence Test would be satisfied and
(B) either (x) the Unrestricted Subsidiary Investment Amount shall not
exceed 1% of Consolidated Total Assets, or (y) if the Unrestricted Subsidiary
Investment Amount shall exceed 1% of Consolidated Total Assets, or to the extent
resulting in the Unrestricted Subsidiary Investment Amount exceeding 1% of
Consolidated Total Assets, such Designation and any related Investment shall
constitute a Restricted Use and the Restricted Uses shall not exceed the
Restricted Uses Basket; and
(iv) the
Borrower has delivered to the Administrative Agent (x) written notice of
such Designation and (y) a certificate, dated the effective date of such
Designation, of a Financial Officer stating that no Event of Default has
occurred and is continuing, specifying whether such Designation is made in
reliance on clause (x) or (y) of clause (B) of paragraph (iii) above and
setting forth reasonably detailed calculations demonstrating compliance with
the
requirements of clauses (A) and (B) of paragraph (iii) above.
Upon
the
designation of any Restricted Subsidiary as an Unrestricted Subsidiary pursuant
to the terms hereof, provided after giving effect thereto no Default or
Event of Default shall have occurred and be continuing, the Guarantee of such
Subsidiary shall automatically be released without any consent of the Required
Lenders; provided further, however, that no such Guarantee shall
be released unless each Ratable Guarantee by such Subsidiary shall be released
upon the release of such Guarantee of the Secured Obligations.
(b) The
Borrower may designate any Unrestricted Subsidiary as a Restricted Subsidiary
under this Agreement (an “RS Designation”) only if:
(i) no
Event
of Default shall have occurred and be continuing at the time of or after giving
effect to such RS Designation and, after giving effect thereto, the Incurrence
Test would be satisfied; and
(ii) all
Liens
on assets of such Unrestricted Subsidiary and all Indebtedness of such
Unrestricted Subsidiary outstanding immediately following the RS Designation
would, if initially incurred at such time, have been permitted to be incurred
pursuant to Sections 6.01 and 6.02 without reliance on
Section 6.01(a)(ii) or Section 6.02(c) or (g).
82
Upon
any
such RS Designation with respect to an Unrestricted Subsidiary (i) the
Borrower and the Restricted Subsidiaries shall be deemed to have received a
return of their Investment in such Unrestricted Subsidiary equal to the lesser
of (x) the amount of the net book value of such Subsidiary immediately prior
to
such RS Designation and (y) the fair market value (as reasonably determined
by
the Borrower) of the net assets of such Subsidiary at the time of such RS
Designation and (ii) the Borrower and the Restricted Subsidiaries shall be
deemed to have a permanent Investment in an Unrestricted Subsidiary equal to
the
excess, if positive, of the amount referred to in clause (i)(x) above over
the amount referred to in clause (i)(y) above.
(c) Neither
the Borrower nor any Restricted Subsidiary shall at any time (x) provide a
Guarantee of any Indebtedness of any Unrestricted Subsidiary, (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any other
Indebtedness which provides that the holder thereof may (upon notice, lapse
of
time or both) declare a default thereon (or cause such Indebtedness or the
payment thereof to be accelerated, payable or subject to repurchase prior to
its
final scheduled maturity) upon the occurrence of a default with respect to
any
other Indebtedness that is Indebtedness of an Unrestricted Subsidiary, except
in
the case of clause (x) or (y) to the extent permitted under
Section 6.01 and Section 6.04 hereof. Except as provided in
clause (b) above, each Designation shall be irrevocable, and no Unrestricted
Subsidiary may become a Restricted Subsidiary, be merged with or into the
Borrower or a Restricted Subsidiary or liquidate into or transfer substantially
all its assets to the Borrower or a Restricted Subsidiary.
SECTION
6.14. Total
Leverage Ratio. At any time when there is any outstanding
Revolving Exposure (other than outstanding Letters of Credit that have been
fully cash collateralized in accordance with Section 2.05(j)), the Borrower
will
not, without the approval of the Required Revolving Lenders, permit the Total
Leverage Ratio on the last day of any fiscal quarter to exceed 5.0 to
1.0.
SECTION
6.15. Total
Secured Leverage Ratio. At any time when there is any outstanding
Revolving Exposure (other than outstanding Letters of Credit that have been
fully cash collateralized in accordance with Section 2.05(j)), the Borrower
will
not, without the approval of the Required Revolving Lenders, permit the Total
Secured Leverage Ratio on the last day of any fiscal quarter to exceed 3.0
to
1.0.
SECTION
6.16. Covenants
with Respect to PTII. FCX will not, except with the prior written
consent of the Required Lenders, cause or permit PTII to:
(a) create,
incur, assume or permit to exist any Indebtedness or Attributable
Debt;
(b) issue
any
Equity Interests other than Equity Interests pledged to the Secured Parties
as
represented by the Collateral Agent to secure the Secured Obligations and the
FI
Obligations pursuant to a pledge agreement satisfactory to the Collateral
Agent;
(c) create,
incur, assume or permit to exist any Lien (other than nonconsensual Permitted
Encumbrances) on any property or asset now owned or hereafter acquired by it,
or
assign or sell any income or revenues or rights in respect of any thereof,
except Liens created under or specifically required by the Loan Documents
securing some or all of the Obligations;
83
(d) purchase,
hold, make or acquire any Investment in any other Person, or purchase or
otherwise acquire any assets of any other Person, except Investments existing
on
the Effective Date;
(e) sell,
transfer, lease or otherwise dispose of any PTFI Shares other than in a
Qualifying PTFI Sale Transaction permitted hereby or a sale otherwise permitted
under Section 6.05(c)(ii);
(f) conduct
any business or operations other than acting as a holding company for
Investments owned by it on the Effective Date; or
(g) liquidate,
dissolve or merge or consolidate with or into any other Person (other than
PTFI);
ARTICLE
VII
Events
of Default
If
any of
the following events (“Events of Default”) shall occur:
(a) the
Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b) the
Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article)
payable under this Agreement or any other Loan Document, when and as the same
shall become due and payable, and such failure shall continue unremedied for
a
period of three Business Days;
(c) any
representation or warranty made or deemed made by or on behalf of the Borrower
or any Restricted Subsidiary in or in connection with any Loan Document or
any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or
in
connection with any Loan Document or any amendment or modification thereof
or
waiver thereunder, shall prove to have been incorrect in any material respect
when made or deemed made;
(d) the
Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02(a) or 5.04 (with respect to the existence of the
Borrower) or in Article VI; provided that any breach of a Financial
Covenant shall not constitute an Event of Default in respect of the Term Loans
unless and until the earlier of (i) the date that is 60 days after the delivery
of the financial statements under Section 5.01(a) or (b) in respect of the
financial period as of the end of which such Financial Covenant is breached
and
(ii) the date on which the Administrative Agent or the Required Revolving
Lenders first exercises any remedy under this Article VII in respect of such
breach; and provided further that any Event of Default under a Financial
Covenant may be waived, amended or
84
otherwise
modified from time to time by the Required Revolving Lenders pursuant to Section
9.02;
(e) any
Loan
Party shall fail to observe or perform any covenant, condition or agreement
contained in any Loan Document (other than those specified in clause (a),
(b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender);
(f) (i)
an
“Event of Default” shall exist under the Restated Credit Agreement (other than
such an “Event of Default” under section 6.14 or 6.15 thereof which shall not
constitute an Event of Default in respect of the Term Loans unless and until
the
earlier of (A) the date that is 60 days after the delivery of the financial
statements under Section 5.01(a) or (b) in respect of the financial period
as of
the end of which such section is breached and (B) the date on which the
Administrative Agent or the Required Lenders under the Restated Credit Agreement
first exercise any remedy under article VII of the Restated Credit Agreement
in
respect of such breach); (ii) default shall be made with respect to any Material
Indebtedness if the effect of any such default shall be to accelerate, or to
permit the holder or obligee of any such Material Indebtedness (or any trustee
on behalf of such holder or obligee) to accelerate, the stated maturity of
such
Material Indebtedness or, in the case of Hedging Agreements, require the payment
of any net termination value in respect thereof or, in the case of Project
Financings, permit foreclosure upon, or require FCX or any Restricted Subsidiary
to repurchase the related Project Financing Assets; or (iii) any amount of
principal or interest of any Material Indebtedness or any payment under a
Hedging Agreement constituting Material Indebtedness, in each case regardless
of
amount, shall not be paid when due, whether at maturity, by acceleration or
otherwise (after giving effect to any period of grace specified in the
instrument evidencing or governing such Material Indebtedness);
(g) an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed seeking (i) liquidation, reorganization or other relief in respect of
the
Borrower, any Subsidiary Guarantor or any other Restricted Subsidiary that
is a
Significant Subsidiary (each, a “Material Company”) or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii)
the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any Material Company or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the
foregoing shall be entered;
(h) any
Material Company shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest
in a
timely and appropriate manner, any proceeding or petition described in clause
(g) of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for
any Material Company or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in
any
such proceeding, or (v) make a general assignment for the benefit of
creditors;
85
(i) any
Material Company shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(j) one
or
more judgments for the payment of money in an aggregate amount in excess of
$100,000,000 shall be rendered against the Borrower, any Restricted Subsidiary
or any combination thereof and the same shall remain undischarged for a period
of 45 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach
or
levy upon any assets of the Borrower or any Restricted Subsidiary to enforce
any
such judgment;
(k) an
ERISA
Event shall have occurred that, when taken together with all other ERISA Events
that have occurred, would reasonably be expected to result in a Material Adverse
Effect;
(l) any
Lien
purported to be created under any Security Document shall cease to be, or shall
be asserted by any Loan Party not to be, a valid and, to the extent contemplated
by the applicable Security Document, perfected Lien on any material amount
of
Collateral, with the priority required by the applicable Security Document,
except (i) as a result of the sale or other disposition of the applicable
asset in a transaction permitted under the Loan Documents or (ii) as a
result of the failure of the Collateral Agent to maintain possession of any
stock certificates, promissory notes or other instruments delivered to it under
any Security Document;
(m) any
Guarantee under any Loan Document shall cease to be, or shall be asserted by
any
Loan Party in writing not to be, a valid and enforceable Guarantee;
(n) any
Governmental Authority shall condemn, seize, nationalize, assume the management
of, or appropriate any material portion of the property, assets or revenues
of
the Borrower or any Restricted Subsidiary (either with or without payment of
compensation); or
(o) a
Change
in Control shall occur;
then,
and
in every such event (other than an event with respect to the Borrower described
in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at
the
request of the Required Lenders (or, in the case of any Event of Default arising
from a breach of a Financial Covenant, at the request of the Required Revolving
Lenders and only with respect to the Revolving Commitments and Revolving
Exposures) shall, by notice to the Borrower, take any or all of the following
actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately,
(ii) declare the Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and payable
may
thereafter be declared to be due and payable), and thereupon the principal
of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived
by
the Borrower and (iii) exercise any or all the remedies then available
under the Security Documents; and in case of any event with respect to the
Borrower described in clause (g) or (h) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations
86
ARTICLE
VIII
The
Agents
Each
of
the Lenders, the Agents and the Issuing Banks hereby irrevocably appoints
(a) JPMCB as Administrative Agent under this Agreement and the other Loan
Documents, (b) JPMCB as Collateral Agent for the Lenders, the Agents and
the Issuing Banks under this Agreement and the other Loan Documents, and
(c) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated as the
Syndication Agent for the Lenders, the Agents and the Issuing Banks under this
Agreement and the other Loan Documents. Each Lender, each Agent and
each Issuing Bank confirms and agrees to be bound by the terms of the Loan
Documents. Each Lender, each Agent and each Issuing Bank authorizes
the Agents to take such actions on its behalf and to exercise such powers as
are
delegated to the applicable Agent by the terms of the applicable Loan Documents,
together with such actions and powers as are reasonably incidental
thereto. Neither the Syndication Agent nor any Documentation Agent,
in its capacity as such, shall have any responsibilities or authority under
this
Agreement or the other Loan Documents.
Each
of
the Lenders serving as the Administrative Agent, the Collateral Agent and the
Syndication Agent shall have the same rights and powers in its capacity as
a
Lender as any other Lender and may exercise the same as though it were not
the
applicable Agent or Agent under the Restated Credit Agreement or the Loan
Documents thereunder, and each of such Lenders and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not
an
Agent hereunder or thereunder.
No
Agent
shall have any duties or obligations except those expressly set forth in the
applicable Loan Documents. Without limiting the generality of the
foregoing, (a) no Agent shall be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing,
(b) no Agent shall have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent
is
required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders or Secured Parties as shall be
necessary under the circumstances as provided in Section 9.02 or the
applicable Loan Document), and (c) except as expressly set forth in the
Loan Documents, no Agent shall have any duty to disclose, or shall be liable
for
the failure to disclose, any information relating to the Borrower or any of
its
Subsidiaries that is communicated to or obtained by the bank serving as such
Agent or any of its Affiliates in any capacity under the Loan Documents, the
Restated Credit Agreement or the Loan Documents thereunder. No Agent
shall not be liable for any action taken or not taken by it with the consent
or
at the request of the Required Lenders (or such other number or percentage
of
the Lenders as shall be necessary under the circumstances as provided in
Section 9.02) or in the absence of its own gross negligence or wilful
misconduct. No Agent shall be deemed to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent
by
the Borrower or a Lender, and no Agent shall not be responsible for or have
any
duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any
87
certificate,
report or other document delivered thereunder or in connection therewith,
(iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document
or
any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other
than to confirm receipt of items expressly required to be delivered to such
Agent.
Without
limiting the generality of the foregoing, the Administrative Agent and the
Collateral Agent are hereby expressly authorized to execute any and all
documents (including releases) with respect to the collateral under the Security
Documents and to carry out the rights of the secured parties with respect
thereto, as contemplated by and in accordance with the provisions of this
Agreement and the Security Documents. In addition, each Lender, each
Agent and each Issuing Bank hereby irrevocably authorizes and directs the
Administrative Agent and the Collateral Agent to enter, on behalf of each of
them, into the Security Documents and agrees to be bound by the terms of the
Security Documents. Each Lender, each Agent and each Issuing Bank
hereby irrevocably authorizes and directs the Administrative Agent and the
Collateral Agent, as applicable, to enter into amendments from time to time
to
the Security Documents or take any other action for the purpose of naming as
Secured Parties thereunder (i) Lenders that become parties to this Agreement
after the Effective Date and/or (ii) Lender Affiliates that become
counterparties to Hedging Agreements, the obligations under which are secured
by
the Security Documents.
Each
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper Person. Each Agent also may rely upon any
statement made to it orally or by telephone and believed by it to be made by
the
proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be
counsel for the Borrower), independent accountants and other experts selected
by
it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or
experts.
Each
Agent may perform any and all its duties and exercise its rights and powers
by
or through any one or more sub-agents appointed by the applicable
Agent. Each Agent and any such sub-agent may perform any and all its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent and to the Related Parties of each Agent and any
such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Agent.
No
Agent
shall commence any litigation in the name of, or on behalf of, any Lender
without the prior consent of such Lender; provided, however, that
notwithstanding the foregoing, in the event that any Agent commences any
litigation at the direction of the Required Lenders, any Lender that shall
not
have consented thereto shall remain liable for its pro rata share of the costs
and expenses of such Agent pursuant to the provisions of this
Agreement.
The
Syndication Agent and, subject to the appointment and acceptance of a successor
as provided in this paragraph, any other Agent may resign at any time by
notifying the Lenders and the Borrower. Upon any such resignation by
the Administrative Agent or the Collateral Agent, the Required Lenders shall
have the right,
88
in
consultation with the Borrower, to appoint a successor Administrative Agent
or
Collateral Agent (subject to the approval of the Required Lenders under the
Restated Credit Agreement), as the case may be. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, appoint
a
successor Administrative Agent or Collateral Agent, as the case may be, which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative
Agent or Collateral Agent, as the case may be, hereunder by a successor, such
successor Administrative Agent or Collateral Agent, as applicable,
shall succeed to and become vested with all the rights, powers, privileges
and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations hereunder. The fees payable by the
Borrower to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor. After any Agent’s resignation hereunder, the provisions of
this Article and Section 9.03 shall continue in effect for the benefit of
such retiring Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it
was
acting as an Agent.
Each
Lender acknowledges that it has, independently and without reliance upon the
Agents or any other Lender and based on such documents and information as it
has
deemed appropriate, made its own credit analysis and decision to enter into
this
Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based
upon this Agreement, any other Loan Document or related agreement or any
document furnished hereunder or thereunder.
The
obligations of the Administrative Agent, Collateral Agent and the Syndication
Agent shall be separate and several and none of them shall be responsible or
liable for the acts or omissions of any other, except, to the extent that any
such Agent serves in more than one agency capacity, such Agent shall be
responsible for the acts and omissions relating to each such agency
function.
Without
the prior written consent of the Required Lenders but subject to
Section 9.02(b), the Administrative Agent and the Collateral Agent will
not, except as contemplated by this paragraph, consent to any modification,
supplement or waiver of any Security Document. Notwithstanding any
other provision of this Article VIII, the Administrative Agent and the
Collateral Agent will, at the request of FCX, release (or subordinate such
interest) from the Security Documents (and enter into an amendment to any
applicable Security Document and execute such other instruments as may be
necessary in connection therewith), any interest of the Administrative Agent
or
the Collateral Agent, as applicable, upon receipt by the Administrative Agent
of
a certificate from a Financial Officer of FCX specifying the asset to be
released and the related transaction and certifying that after giving effect
thereto, no Event of Default shall occur or be continuing, specific assets
(which may either be released from the Lien of the Security Documents or
excluded from the after-acquired property clauses of the Security Documents)
as
required to be released to allow sales, transfers or other dispositions, secured
financings, capital leases and sale leaseback transactions and pledges of assets
expressly permitted hereby. In addition, upon consummation of a
Project Financing by a Project Financing Subsidiary, to the extent releases
are
requested in a certificate from a Financial Officer of FCX, which certificate
shall certify that after giving effect to such releases no Event of Default
shall occur or be continuing and that such releases are in
89
conformity
with clause (D) of the Collateral and Guarantee Requirement, such Project
Financing Subsidiary and, if applicable, its parent shall automatically be
released from its Guarantee and the pledge of the Equity Interests in such
Project Financing Subsidiary shall be released. It is understood and
agreed that releases in connection with this paragraph shall not require any
further consent of the Required Lenders.
ARTICLE
IX
Miscellaneous
SECTION
9.01. Notices. (a) Except
in the case of notices and other communications expressly permitted to be given
by telephone (and subject to paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by
hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:
(i) if
to the
Borrower, to it at Freeport-McMoRan Copper & Gold Inc., Xxx X. Xxxxxxx
Xxxxxx, Xxxxxxx, XX 00000, Attention of Treasurer (Telecopy
No. (000) 000-0000);
(ii) if
to the
Administrative Agent or the Collateral Agent, to JPMorgan Chase Bank, N.A.,
Loan
and Agency Services Group, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000,
Attention of Xx. Xxxxxx Xxxxxxx (Telecopy No. (000) 000-0000), with a copy
to
JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx,
00
Xxx
Xxxx,
Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No. (000)
000-0000);
(iii) if
to the
Swingline Lender, to JPMorgan Chase Bank, N.A., Loan and Agency Services Group,
0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention of Xx. Xxxxxx
Xxxxxxx (Telecopy No. (000) 000-0000), with a copy to the Administrative Agent
as provided under clause (ii) above;
(iv) if
to any
Issuing Bank, to it at the address most recently specified by it in a notice
delivered to the Administrative Agent and the Borrower, with a copy to the
Administrative Agent as provided under clause (ii) above; and
(v) if
to any
other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
(b) Notices
and other communications to the Lenders hereunder may be delivered pursuant
to
procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable
Lender. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder
by
electronic communication pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.
(c) Any
party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the
date
of receipt.
SECTION
9.02. Waivers;
Amendments. (a) No failure or delay by any Agent, any
Lender or any Issuing Bank in exercising any right or power hereunder or under
any other Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other
or
further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Agents, the Lenders and the
Issuing Banks hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of any Loan Document or consent to
any departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for
the
purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or the issuance, amendment, extension or renewal
of a Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether any Agent, any Lender or any Issuing Bank may have had
notice or knowledge of such Default at the time.
(b) Neither
this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except, in the case of this Agreement,
pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders or, in the case of any other Loan Document, pursuant
to
an agreement or agreements in writing entered into by the Administrative Agent
and the Loan Party or Loan Parties that are parties thereto, in each case with
the consent of the Required Lenders; provided that no such agreement
shall (i) increase the Commitment of any Lender without the written consent
of such Lender, (ii) reduce or forgive the principal amount of any Loan or
LC Disbursement or reduce the rate of
91
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 date of any scheduled payment of the principal amount of any Term Loan
under
Section 2.09, or the required date of reimbursement of any LC Disbursement
under
Section 2.05, or any date for the payment of any interest or fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.17(b)
or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change any
of
the provisions of this Section or the percentage set forth in the definition
of
“Required Lenders” or “Required Revolving Lenders” or any other provision of any
Loan Document specifying the number or percentage of Lenders (or Lenders of
any
Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent
of
each Lender (or each Lender of such Class, as the case may be) (it being
understood that, with the consent of the Required Lenders or Required Revolving
Lenders, as the case may be, additional extensions of credit or revolving
commitments pursuant to this Agreement may be included in the determination
of
the Required Lenders or Required Revolving Lenders, as the case may be, on
substantially the same basis as the Term Loans and Revolving Commitments on
the
date hereof), (vi) release all or substantially all the Guarantors from
their Guarantee under the Loan Documents or limit the liability of all or
substantially all the Guarantors in respect of such Guarantees, without the
written consent of each Lender, (vii) release all or substantially all the
Collateral from the Liens of the Security Documents, without the written consent
of each Lender, or (viii) change any provisions of any Loan Document in a manner
that by its terms adversely affects the rights in respect of Collateral or
payments due to Lenders holding Loans of any Class differently than those
holding Loans of any other Class, without the written consent of Lenders holding
a majority in interest of the outstanding Loans and unused Commitments of each
affected Class; provided further that (A) no such agreement shall amend,
modify or otherwise affect the rights or duties of any Agent, any Issuing Bank
or the Swingline Lender without the prior written consent of such Agent, such
Issuing Bank or the Swingline Lender, as the case may be; (B) any waiver,
amendment or modification of this Agreement that by its terms affects the rights
or duties under this Agreement of Lenders holding Loans or Commitments of a
particular Class (but not the Lenders holding Loans or Commitments of any other
Class) may be effected by an agreement or agreements in writing entered into
by
the Borrower and the requisite percentage in interest of the affected Class
of
Lenders that would be required to consent thereto under this Section if such
Class of Lenders were the only Class of Lenders hereunder at the time; (C)
if
the terms of any waiver, amendment or modification of any Loan Document provide
that any Class of Loans (together with all accrued interest thereon and all
accrued fees payable with respect to the Commitments of such Class) will be
repaid or paid in full, and the Commitments of such Class (if any) terminated,
as a condition to the effectiveness of such waiver, amendment or modification,
then so long as the Loans of such Class (together with such accrued interest
and
fees) are in fact repaid or paid and such Commitments are in fact terminated,
in
each case prior to or substantially simultaneously with the effectiveness of
such amendment, then such Loans and Commitments shall not be included in the
determination of the Required Lenders with respect to such amendment; and (D)
no
amendment, modification, waiver of or consent with respect to any of the terms
and provisions (and related definitions to the extent applicable to the
Financial Covenants) of the Financial Covenants, the provisos to paragraph
(d)
of Article VII or the parenthetical reference to the Financial Covenants in
the
then clause at the end of Article VII shall be effective without the written
consent of the Required Revolving Lenders and, in the case of the Financial
Covenants and the related definitions to the extent applicable to the Financial
Covenants, any such amendment, supplement,
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modification
or waiver shall be effective with the written consent of only the Required
Revolving Lenders (or the Administrative Agent with the prior written consent
thereof), on the one hand, and the Borrower, on the other
hand. Notwithstanding the foregoing, any provision of this Agreement
may be amended by an agreement in writing entered into by the Borrower, the
Required Lenders and the Administrative Agent if (1) by the terms of such
agreement any remaining Commitment and/or Revolving Exposure of each Lender
not
consenting to the amendment provided for therein shall terminate upon the
effectiveness of such amendment and (2) at the time such amendment becomes
effective, each Lender not consenting thereto receives payment in full of the
principal of and interest accrued on each Loan made by it and all other amounts
owing to it or accrued for its account under this Agreement.
SECTION
9.03. Expenses;
Indemnity; Damage Waiver. (a) The Borrower agrees to
pay (i) all reasonable out-of-pocket expenses incurred by each Agent and
its Affiliates, including the reasonable fees, charges and disbursements of
counsel for each Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by each
Issuing Bank in connection with the issuance, amendment, extension or renewal
of
any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by any Agent, any Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for any Agent,
any
Issuing Bank or any Lender, in connection with the enforcement or protection
of
its rights in connection with the Loan Documents, including its rights under
this Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters
of
Credit.
(b) The
Borrower agrees to indemnify each Agent, each Lender and each Issuing Bank,
and
each Related Party of any of the foregoing Persons (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or
as
a result of (i) the execution or delivery of any Loan Document or any other
agreement or instrument contemplated hereby, the performance by the parties
to
the Loan Documents of their respective obligations thereunder or the
consummation of the Effective Date Transactions or the Transactions or any
other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by any Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property currently or formerly owned or
operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, other
than losses, claims, damages, liabilities and related costs and expenses arising
from a release of Hazardous Materials or Environmental Liability (except
releases of Hazardous Materials or Environmental Liabilities actually caused
by
the Borrower or any of its Subsidiaries or any of their respective tenants,
contractors or agents) to the extent (and only to the extent) first occurring
and first existing after title to the relevant real property or facility is
vested in any Agent or Lender or other party after the completion of foreclosure
proceedings or the granting of a deed-in-lieu of foreclosure or similar transfer
of title, or (iv) any actual or prospective claim, litigation, investigation
or
proceeding relating to any of the foregoing, whether based on contract, tort
or
any
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other
theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) To
the
extent that the Borrower fails to pay any amount required to be paid by it
to
any Agent under paragraph (a) or (b) of this Section (but without
affecting the Borrower’s obligations thereunder), each Lender severally agrees
to pay to the applicable Agent such Lender’s pro rata share (determined as of
the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case
may
be, was incurred by or asserted against such Agent in its capacity as
such. For purposes of the immediately preceding sentence, a Lender’s
“pro rata share” shall be determined based upon its share of the sum of the
total Revolving Exposures, outstanding Term Loans and unused Revolving
Commitments at the time. To the extent that the Borrower fails to pay
any amount required to be paid by it to any Issuing Bank under
paragraph (a) or (b) of this Section (but without affecting the
Borrower’s obligations thereunder), each Revolving Lender severally agrees to
pay to the applicable Issuing Bank such Revolving Lender’s pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as
the
case may be, was incurred by or asserted against such Issuing Bank in its
capacity as such. For purposes of the immediately preceding sentence,
a Revolving Lender’s “pro rata share” shall be determined based upon its share
of the sum of the total Revolving Exposures and unused Revolving Commitments
at
the time. The obligations of the Lenders under this paragraph (c) are
subject to the last sentence of Section 2.02(a) (which shall apply
mutatismutandis to the Lenders’ obligations under this paragraph
(c)). If any action, suit or proceeding arising from any of the
foregoing is brought against any Lender, any Agent, any Issuing Bank or other
Person indemnified or intended to be indemnified pursuant to this
Section 9.03, FCX, to the extent and in the manner directed by such
indemnified party, will resist and defend such action, suit or proceeding or
cause the same to be resisted and defended by counsel designated by FCX (which
counsel shall be satisfactory to such Lender, such Agent, such Issuing Bank
or
other Person indemnified or intended to be indemnified). If FCX shall
fail to do any act or thing which it has covenanted to do hereunder or any
representation or warranty on the part of FCX contained in this Agreement shall
be breached, any Lender, any Issuing Bank or any Agent may (but shall not be
obligated to) do the same or cause it to be done or remedy any such breach,
and
may expend its funds for such purpose. Any and all amounts so
expended by any Lender, any Issuing Bank or any Agent shall be repayable to
it
by FCX immediately upon such Person’s demand therefor.
(d) To
the
extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct
or
actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Effective
Date
Transactions, 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.
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SECTION
9.04. Successors
and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate
of
any Issuing Bank that issues any Letter of Credit), except that (i) the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of
this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Agents, the Issuing Banks and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) (i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment or LC
Exposure and the Loans at the time owing to it) with the prior consent (such
consent not to be unreasonably withheld or delayed) of:
(A) in
the case of assignments of Revolving Commitments or Revolving Exposures, the
Borrower, the Swingline Lender and each Principal Issuing Bank; provided
that no consent of the Borrower shall be required for an assignment to a
Revolving Lender or to an Affiliate of a Revolving Lender having credit ratings
equal to or better than the credit ratings of such Revolving Lender, or, if
an
Event of Default under clause (a), (b), (g) or (h) of Article VII has
occurred and is continuing, any other assignee; and
(B) the
Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment of a Term Loan or Term Commitment
to
an assignee that is a Lender, an Affiliate of a Lender or an Approved
Fund.
(ii)
Assignments shall be subject to the following additional
conditions:
(A)
except in the case of an assignment to a Lender or an Affiliate of a Lender
or
an Approved Fund, or an assignment of the entire remaining amount of the
assigning Lender’s Commitment or Loans of any Class, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 or, in the case of a Term Loan, $1,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent; provided that no
such consent of the Borrower shall be required if an Event of Default under
clause (a), (b), (g) or (h) of Article VII has occurred and is
continuing; and providedfurther that simultaneous assignments in
respect of a Lender and its Approved Funds shall be aggregated for purposes
of
such requirement;
(B)
each
partial assignment shall be made as an assignment of a proportionate part of
all
the assigning Lender’s rights and obligations under this Agreement,
provided that this clause (B) shall not be construed to prohibit
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assignment
of a proportionate part of all the assigning Lender’s rights and obligations in
respect of one Class of Commitments or Loans;
(C)
the
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Assumption, together with a processing and recordation fee
of
$3,500, payable by either the assignee or the assignor (provided that
only one such fee shall be payable in respect of simultaneous assignments by
a
Lender and its Approved Funds);
(D)
the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent
an Administrative Questionnaire and any tax forms required by Section 2.16(f);
and
(E)
no
assignee shall be entitled to claim compensation which it would as of the
effective date of its assignment have been entitled to claim under Section
2.14
(other than paragraph (b) thereof) or 2.16 which the applicable assignor would
not have been entitled to claim as of such effective date, unless such
assignment is made with the Borrower’s prior written consent.
For
purposes of this Section 9.04(b), the terms “Approved Fund” and “CLO” have the
following meanings:
“Approved
Fund” means (a) a CLO
and (b) with respect to any Lender that is a fund that invests in bank loans
and
similar extensions of credit, any other fund that invests in bank loans and
similar extensions of credit and is managed by the same investment advisor
as
such Lender or by an Affiliate of such investment advisor.
“CLO”
means
an entity (whether a
corporation, partnership, trust or otherwise) that is engaged in making,
purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course and is administered or managed by a Lender
or
an Affiliate of such Lender.
(iii)
Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section, from and after the effective date specified in each Assignment
and Assumption, the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of
Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this Section 9.04 shall be treated for purposes of this Agreement as a
sale
by such Lender of a participation in such rights and obligations in accordance
with paragraph (c) of this Section.
(iv)
The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall
maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of
the Lenders, and the Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Lender pursuant to the terms hereof from time
to
time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the Agents, the Issuing Banks and the Lenders
may
treat each Person whose name is
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recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the
Borrower, any Agent, any Issuing Bank and any Lender, at any reasonable time
and
from time to time upon reasonable prior notice.
(v)
Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section
and any written consent to such assignment required by paragraph (b) of
this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the
Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(vi)
At
the request of the Borrower, the Administrative Agent or the assignee under
an
Assignment and Assumption, the Borrower, each applicable Agent and such assignee
shall enter into any amendments to the Security Documents or take any other
actions for the purpose of naming such assignee as a Secured Party
thereunder.
(c) (i)
Any
Lender may, without the consent of, or notice to, the Borrower, the
Administrative Agent, the Issuing Banks or the Swingline Lender, sell
participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitment or LC Exposure and the Loans
owing
to it); provided that (A) such Lender’s obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(C) the Borrower, the Agents, the Issuing Banks and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement and (D) such Lender
will continue to give prompt attention to and process (including, if required,
through discussions with Participants) requests for waivers or amendments
hereunder. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the
sole
right to enforce the Loan Documents and to approve any amendment, modification
or waiver of any provision of the Loan Documents; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 9.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.17(c) as
though it were a Lender.
(ii) A
Participant shall not be entitled to receive any greater payment under
Section 2.14 (other than paragraph (b) thereof) or 2.16 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.16 unless the Borrower is notified of
the participation sold to such Participant and such Participant agrees, for
the
benefit of the Borrower, to comply with Section 2.16(f) as though it were a
Lender.
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(d) Any
Lender may, without the consent of the Borrower or the Administrative Agent,
at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including
any
pledge or assignment to secure obligations to a Federal Reserve Bank, and this
Section shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.
SECTION
9.05. Survival. All
covenants, agreements, representations and warranties made by the Loan Parties
in the Loan Documents and in the certificates or other instruments delivered
in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of
any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that any
Agent, any Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as
the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03
and Article VIII shall survive and remain in full force and effect regardless
of
the consummation of the transactions contemplated hereby, the repayment of
the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision
hereof.
SECTION
9.06. Counterparts;
Integration; Effectiveness. Execution of the Amendment Agreement
shall be deemed to be execution of this Agreement. The Amendment
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 Amendment 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. Subject to Section 4.01,
the amendment and restatement of this Agreement contemplated by the Amendment
Agreement shall become effective as provided in the Amendment Agreement, 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 the Amendment Agreement by telecopy or
electronic transmission shall be effective as delivery of a manually executed
counterpart of the Amendment Agreement.
SECTION
9.07. Severability. Any
provision of this Agreement held to be invalid, illegal or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION
9.08. Right
of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, each Issuing Bank and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by
law, to set off and apply any and all deposits (general or special, time or
demand,
98
provisional
or final, in whatever currency) at any time held and other obligations at any
time owing (although such obligations may be unmatured) by such Lender or
Issuing Bank or Affiliate to or for the credit or the account of the Borrower
against any of and all the obligations then due of the Borrower now or hereafter
existing under this Agreement. The applicable Lender or Issuing Bank
shall notify the Borrower and the Administrative Agent of such setoff and
application, provided that any failure to give or any delay in giving
such notice shall not affect the validity of any such setoff and application
under this Section. The rights of each Lender, each Issuing Bank and
its Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, Issuing Bank and Affiliates
may have.
SECTION
9.09. Governing
Law; Jurisdiction; Consent to Service of Process; Sovereign
Immunity. (a) This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State
of
New York sitting in New York County and of the United States District Court
of
the Southern District of New York, and any appellate court from any thereof,
in
any action or proceeding arising out of or relating to any Loan Document, or
for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any
such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing
in this Agreement or any other Loan Document shall affect any right that any
Agent, any Issuing Bank or any Lender may otherwise have to bring any action
or
proceeding relating to this Agreement or any other Loan Document against the
Borrower or its properties in the courts of any jurisdiction.
(c) The
Borrower hereby irrevocably and unconditionally waives, to the fullest extent
it
may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of
or
relating to this Agreement or any other Loan Document in any court referred
to
in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in
any
such court.
(d) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement
or any other Loan Document will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
SECTION
9.10. WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO
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ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION
9.11. Headings. Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION
9.12. Confidentiality. Each
of the Agents, the Issuing Banks and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates’ directors, trustees,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any actual or prospective assignee of or
Participant in any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap
or derivative transaction relating to the Borrower or any other Loan Party
and
its obligations, (g) with the consent of the Borrower or (h) to the
extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to any Agent,
any Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Borrower. For the purposes of this Section,
“Information” means all information received from or on behalf of the
Borrower relating to the Borrower or its business, other than any such
information that is available to any Agent, any Issuing Bank or any Lender
on a
nonconfidential basis prior to disclosure by the Borrower. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION
9.13. Interest
Rate Limitation. Notwithstanding anything herein to the contrary,
if at any time the interest rate applicable to any Loan or participation in
any
LC Disbursement, together with all fees, charges and other amounts which are
treated as interest on such Loan or LC Disbursement or participation therein
under applicable law (collectively the “Charges”), shall exceed the
maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan or LC
Disbursement or participation therein in accordance with applicable law, the
rate of interest payable in respect of such Loan or LC Disbursement or
participation therein hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
LC
Disbursement or participation therein but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or LC Disbursements or
participations therein or periods shall be increased (but not above the Maximum
Rate therefor) until such cumulated amount,
100
together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION
9.14. Judgment
Currency. The specification of payment in dollars and in New York
City, New York, with respect to amounts payable to any Lender (or permitted
assignee or Participant), any Agent or any Issuing Bank hereunder and under
the
other Loan Documents is of the essence, and dollars shall be the currency of
account in all events. The payment obligations of the Borrower under
this Agreement or any other Loan Document shall not be discharged by an amount
paid by the Borrower in another currency or in another place, whether pursuant
to a judgment or otherwise, to the extent that the amount so paid on conversion
to dollars and transfer to New York City under normal banking procedures does
not yield the amount of dollars in New York City due hereunder. If
for the purpose of obtaining judgment in any court it is necessary to convert
a
sum due hereunder in dollars into another currency (the “second
currency”), the rate of exchange which shall be applied shall be that at
which in accordance with normal banking procedures the Administrative Agent
could purchase dollars with the second currency on the Business Day next
preceding that on which such judgment is rendered. The obligation of
the Borrower in respect of any such sum due from the Borrower to any Agent,
any
Issuing Bank or any Lender (or permitted assignee or Participant) hereunder
or
under any other Loan Document (an “entitled person”) shall,
notwithstanding the rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that on the Business Day following
receipt by such entitled person of any sum adjudged to be due hereunder or
under
any other Loan Document in the second currency such entitled person may in
accordance with normal banking procedures purchase in the free market and
transfer to New York City dollars with the amount of the second currency so
adjudged to be due; and the Borrower hereby agrees, as a separate obligation
and
notwithstanding any such judgment, to indemnify such entitled person against,
and to pay such entitled person on demand, in dollars in New York City, the
difference between the sum originally due to such entitled person from the
Borrower in dollars and the amount of dollars so purchased and
transferred.
SECTION
9.15. [intentionally
omitted]
SECTION
9.16. Patriot
Act. Each Lender and the Administrative Agent (for itself and not
on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender
or
the Administrative Agent, as applicable, to identify the Borrower in accordance
with the Patriot Act. The Borrower agrees to provide the Lenders,
upon request, with all documentation and other information required from time
to
time to be obtained by the Lenders pursuant to applicable “know your customer”
and anti-money laundering rules and regulations, including the Patriot
Act.
SECTION
9.17. No
Fiduciary Relationship. The Borrower, on behalf of itself and the
Subsidiaries, agrees that in connection with all aspects of the transactions
contemplated hereby and any communications in connection therewith, the
Borrower, the Subsidiaries and their Affiliates, on the one hand, and the
Agents, the Lenders, the Issuing Banks and their Affiliates, on the other hand,
will have a business relationship that does not create, by implication or
otherwise, any fiduciary duty on the part of the Agents, the Lenders, the
Issuing Banks or their Affiliates, and no such duty will be deemed to have
arisen in connection with any such transactions or communications.
101
SECTION
9.18. Release
of Liens and Guarantees; Rejurisdictioning of
PTFI. (a) A Subsidiary Guarantor shall automatically
be released from its obligations under the Loan Documents and all security
interests in the Collateral of such Subsidiary Guarantor, and in the Equity
Interests in such Subsidiary Guarantor, shall be automatically released upon
the
consummation of any transaction permitted by this Agreement as a result of
which
such Subsidiary Guarantor ceases to be a Subsidiary; provided that, if so
required by this Agreement, the Required Lenders (or such greater number of
Lenders as may be required under Section 9.02) shall have consented to such
transaction and the terms of such consent did not provide
otherwise. Upon any sale or other transfer by any Subsidiary
Guarantor (other than to FCX or any other Subsidiary) of any Collateral that
is
permitted under this Agreement, or upon the effectiveness of any written consent
to the release of the security interest granted under any Loan Document in
any
Collateral pursuant to Section 9.02 of this Agreement, the security interest
in
such Collateral shall be automatically released. In connection with
any termination or release pursuant to this Section, the Collateral Agent shall
promptly execute and deliver to any Subsidiary Guarantor, at such Subsidiary
Guarantor’s expense, all documents that such Subsidiary Guarantor shall
reasonably request to evidence such termination or release.
(b) Subject
to paragraph (e) below, at any time when the corporate credit ratings of FCX
by
each of Xxxxx’x and S&P at such time are, respectively, Baa3 or better and
BBB- or better, upon written notice from the Borrower and at the Borrower’s
expense, the Collateral Agent shall terminate and release all the Collateral
under the Security Documents (but not, unless specifically requested by the
Borrower in such notice, any Collateral under the FI Security Documents) and
the
Collateral Agent shall promptly execute and deliver all documents that the
Borrower shall reasonably request to evidence such termination or
release.
(c) Notwithstanding
any provision of any Loan Document to the contrary, PTFI may elect to effect
a
transaction in which it will cease to be domesticated under the laws of Delaware
as a corporation and shall become solely a limited liability company organized
under the laws of the Republic of Indonesia.
(d) Any
execution and delivery of documents pursuant to this Section shall be without
recourse to or warranty by the Collateral Agent.
(e) Notwithstanding
any provision to the contrary herein or in any other Loan Document, no Guarantee
shall be released unless each Ratable Guarantee by the applicable Loan Party
shall be released upon the release of such Loan Party’s Guarantee of the Secured
Obligations.
(f) Upon
the
occurrence of the Amendment Effective Date, the pledge of the PTII Shares
granted under the Third Amended and Restated FCX/ISI Pledge Agreement (PTII
Shares) shall terminate and be released, and the Administrative Agent and the
Collateral Agent are fully authorized to and shall promptly execute and deliver
all documents that the Borrower shall reasonably request to evidence such
termination or release.
SECTION
9.19. Non-Public
Information. (a) Each Lender acknowledges that all
information furnished to it pursuant to this Agreement from the Borrower or
on
its behalf and relating to the Borrower, the Subsidiaries or its or their
respective businesses may include material non-public information concerning
the
Borrower and the Subsidiaries or its or their securities, and confirms that
it
has developed compliance procedures regarding the use of material non-public
information and that it will handle
102
such
material non-public information in accordance with the procedures and applicable
law, including Federal and state securities laws.
103
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.,
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by________________________
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Name:
Xxxxxxxx X. Xxxxx
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Title:
Senior Vice President, Chief Financial Officer and
Treasurer
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JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent,
Issuing Bank and Collateral Agent,
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by________________________
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Name:
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Title:
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XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED, as Syndication
Agent, |
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by ___________________________
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Name:
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Title:
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LENDER SIGNATURE PAGE TO
FREEPORT-MCMORAN COPPER &
GOLD INC. AMENDED AND
RESTATED CREDIT AGREEMENT
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by______________________________
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Name:
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Title:
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For any Lender requiring a second signature line:
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by
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________________________________ |
Name:
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Title:
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