EXHIBIT 4.16
CREDIT AGREEMENT entered into as of
October 27, 1989, as amended through the Fifth Amendment
(the "Amendment Agreement") dated as of the Fifth Amendment
Closing Date (as defined below) among P.T. FREEPORT
INDONESIA COMPANY, a limited liability company organized
under the laws of Indonesia and also domesticated in
Delaware ("FI"), FREEPORT-McMoRan COPPER & GOLD INC., a
Delaware corporation ("FCX" or the "Guarantor"), the
undersigned banks (collectively, the "Banks"), FIRST TRUST
OF NEW YORK, NATIONAL ASSOCIATION (as successor to ▇▇▇▇▇▇
Guaranty Trust Company of New York), acting as trustee for
the Banks under the FI Trust Agreement (in such capacity,
the "FI Trustee") and, acting in the capacity of FI Trustee,
as security agent for the Banks under the FI Security
Documents (as herein defined), for purposes of Article VIII
hereof only, CHEMICAL BANK, a New York banking corporation
("Chemical"), as administrative agent for the Banks (in such
capacity, the "Administrative Agent"), and as FCX collateral
agent for the Banks (in such capacity, the "FCX Collateral
Agent") under the FCX Collateral Agreement referred to
below, and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
a national banking association ("Chase"), as documentary
agent for the Banks (the "Documentary Agent"; the
Administrative Agent, the FCX Collateral Agent and the
Documentary Agent being referred to herein as the "Agents").
FI and FCX have requested the Banks to extend
credit on a secured basis to FI in order to enable FI to
borrow on a revolving credit basis at any time and from time
to time prior to the Maturity Date (as herein defined). The
aggregate principal amount of all revolving credit loans at
any time outstanding hereunder shall not exceed
$550,000,000. The proceeds of such borrowings are to be
used for general corporate purposes, including, without
limitation, the financing of acquisitions.
The Banks are willing to make secured loans to FI
upon the terms and subject to the conditions hereinafter set
forth, including the guarantee by FCX of the loans to FI.
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants herein contained, the parties
hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. As used in this Agree-
ment, the following terms have the meanings indicated (any
term defined in this Article I or elsewhere in this Agree-
ment in the singular and used in this Agreement in the
plural shall include the plural, and vice versa):
"Administrative Questionnaire" means an
Administrative Questionnaire in the form of Exhibit C to the
FCX Credit Agreement.
"Affiliate" means, when used 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.
"Airfast Assets" means certain specified aircraft
and airport facilities sold by FI to Avco pursuant to the
Airfast Documents.
"Airfast Documents" means the agreements governing
the Airfast Transaction as in effect on the Fifth Amendment
Closing Date and as amended from time to time as permitted
by Section 5.2(o).
"Airfast Obligations" mean all obligations of FI
relating to the Airfast Transaction.
"Airfast Transaction" means the sale and leaseback
transaction between FI and Avco relating to the Airfast
Assets, the related financing and FI's equity investment of
up to $2,000,000 in Avco, substantially on the terms
described in the Airfast Documents.
"ALatieF" means P.T. ALatieF Nusakarya
Corporation, an Indonesian limited liability company.
"ALatieF-FI Assets" means the non-mining
infrastructure facilities as described in the ALatieF-FI
Joint Venture Agreement.
"ALatieF Documents" means the agreements governing
the sale and leaseback transaction between ALatieF-FI and
FI, including the related financing arrangements under the
Chase-ALatieF Agreement and the B.V. Notes, as in effect on
the Fifth Amendment Closing Date and as amended from time to
time as permitted by Section 5.2(o).
"ALatieF-FI" means P. T. ALatieF Freeport
Infrastructure Corporation, the joint venture company
organized under the laws of Indonesia by FI and ALatieF
pursuant to the ALatieF-FI Joint Venture Agreement.
"ALatieF-FI Joint Venture Agreement" means the
Joint Venture Agreement made and entered into on March 11,
1993, between FI and ALatieF, as in effect on the Fifth
Amendment Closing Date and as amended as permitted by
Section 5.2(o) from time to time.
"ALatieF-FI Obligations" mean all obligations of
FI and FCX relating to the ALatieF-FI Transaction, including
FCX's Guarantee of the BV Notes and FI's Guarantee of the
Chase-ALatieF Agreement obligations, FI's obligations under
the intercompany notes relating to the B.V. Notes and FI's
obligations under the related master services agreements.
"ALatieF-FI Transaction" means the sale and
leaseback transaction between FI and ALatieF relating to the
ALatieF-FI Assets, including the related financing
arrangements, as in effect on the Fifth Amendment Closing
Date and as amended from time to time as permitted by
Section 5.2(o).
"Alternate Base Rate" means for any day, a rate
per annum (rounded upwards, if not already a whole multiple
of 1/100 of 1%, to the next higher 1/100 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day,
(b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect for such day
plus 1/2 of 1%. For purposes hereof, the term "Prime Rate"
means the rate of interest per annum publicly announced from
time to time by Chemical as its prime rate in effect at its
principal office in the City of New York; each change in the
Prime Rate shall be effective on the date such change is
publicly announced as being effective. "Base CD Rate" means
the sum of (x) the product of (i) the Three-Month Secondary
CD Rate and (ii) Statutory Reserves and (y) the Assessment
Rate. "Three-Month Secondary CD Rate" means, for any day,
the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such
day shall not be a Business Day, the next preceding Business
Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published
in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-
month certificates of deposit of major money center banks in
New York City received at approximately 10:00 a.m., New York
City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing
selected by it. "Federal Funds Effective Rate" means, for
any day, the weighted average 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 which is a Business Day, the average
of the quotations for the day of such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the
Federal Funds Effective Rate or both for any reason,
including the inability or failure of the Administrative
Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined
without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist.
Any change in the Alternate Base Rate due to a change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable LIBO Rate" means on a per annum basis,
in respect of any LIBO Rate Loan, for each day during the
Interest Period for such Loan, the sum of (i) the LIBO Rate
as determined by the Administrative Agent plus (ii) the
Applicable Margin.
"Applicable Margin" means, with respect to any
LIBO Rate Loan or Reference Rate Loan, or with respect to
the Commitment Fees, as the case may be, the applicable
percentage set forth on Schedule I hereto under the caption
"LIBOR Spread", "ABR Spread" or "Fee Percentage", as the
case may be, based upon the ratings by S&P and ▇▇▇▇▇'▇,
respectively, applicable on such date to the Index Debt.
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P
shall not have in effect a rating for the Index Debt (other
than by reason of the circumstances referred to in the last
sentence of this definition), then such rating agency shall
be deemed to have established a rating of BB-/Ba3 unless
such rating agency shall have in effect a rating for senior
subordinated unsecured, non-credit enhanced, long-term
indebtedness for borrowed money of FCX, in which case such
rating, increased by two categories, shall be used as the
Index Debt rating of such rating agency so long as such
rating agency has in effect such a rating and does not have
in effect a rating for Index Debt; (ii) if the ratings
established or deemed to have been established by ▇▇▇▇▇'▇
and S&P for the Index Debt shall fall within different
categories, the Applicable Margin shall be based on the
higher of the two ratings; and (iii) if the ratings
established or deemed to have been established by ▇▇▇▇▇'▇
and S&P for the Index Debt shall be changed (other than as a
result of a change in the rating system of ▇▇▇▇▇'▇ 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 Margin 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 ▇▇▇▇▇'▇ or
S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt
obligations, FI and the Banks shall negotiate in good faith
to amend this definition to reflect such changed rating
system or the non-availability of ratings from such rating
agency and, pending the effectiveness of any such amendment,
the Applicable Margin shall be determined by reference to
the rating most recently in effect prior to such change or
cessation.
"Applicable Percentage" of any Bank means the
percentage set opposite such Bank's name on Schedule II
hereto, as modified from time to time as provided hereby.
"Applicable Reference Rate" means, on a per annum
basis in respect of any Reference Rate Loan, for any day,
the sum of the Alternate Base Rate, plus the Applicable
Margin.
"Assessment Rate" means, with respect to each day
during an Interest Period, the annual rate (rounded upwards,
if not already a whole multiple of 1/100 of l%, to the next
highest whole multiple of 1/100 of 1%) most recently
estimated by the Administrative Agent as the then current
net annual assessment rate that will be employed in
determining amounts payable by Chemical to the Federal
Deposit Insurance Corporation or any successor ("FDIC") for
the FDIC's insuring time deposits made in Dollars at offices
of Chemical in the United States.
"Assigned Agreements" means the Contract of Work
and the Concentrate Sales Agreements.
"Available Borrowing Base" means the then
effective Borrowing Base minus the aggregate outstanding
principal amount of all Borrowing Base Debt.
"Avco" means P.T. Airfast Aviation Facilities
Company, an Indonesian joint venture company owned by P.T.
Airfast Indonesia, P.T. Giga Haksa and FI.
"Bank" means each bank signatory hereto and its
successors and permitted assigns under Section 10.3.
"Board" means the Board of Governors of the
Federal Reserve System of the United States.
"Borrower" means FI.
"Borrowing Base" has the meaning assigned to such
term in Article II.
"Borrowing Base Certificate" has the meaning
assigned to such term in Article II.
"Borrowing Base Debt" means the sum, without
duplication, of (i) FI Borrowing Base Debt plus (ii) FCX
Borrowing Base Debt, all as of the date of calculation. In
addition, any preferred stock issued by FI or FCX or a
Restricted Subsidiary with mandatory redemption payments or
put rights prior to the Maturity Date shall also be
considered Borrowing Base Debt until the next
redetermination of the Borrowing Base.
"Borrowing Date" means, with respect to any Loan,
the date on which such Loan is disbursed.
"Business Day" means any day other than a
Saturday, Sunday or a day on which banks in New York City
are authorized or required by law to close; provided,
however, that when used in connection with a LIBO Rate 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.
"B.V. Notes" has the meaning assigned to such term
in Section 5.2(g)(iii).
"Capitalized Lease Obligation" means the obliga-
tion of any Person to pay rent or other amounts under a
lease of (or other agreement conveying the right to use)
real and/or personal property which obligation is, or in
accordance with GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting
Standards Board) is required to be, classified and accounted
for as a capital lease on a balance sheet of such Person
under GAAP, and for purposes of this Agreement the amount of
such obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
"Caterpillar" means Caterpillar Financial Services
Corporation.
"Caterpillar Assets" has the meaning assigned to
such term in Section 5.2(g)(iv).
"Caterpillar Documents" means the documentation
governing the Caterpillar Transaction, as in effect on the
Fifth Amendment Closing Date and as amended from time to
time as permitted by Section 5.2(o).
"Caterpillar Obligations" has the meaning assigned
to such term in Section 5.2(g)(iv).
"Caterpillar Transaction" has the meaning assigned
to such term in Section 5.2(g)(iv).
A "Change in Control" shall be deemed to have
occurred if (a) any Person or group (within the meaning of
Rule 13d-5 of the SEC as in effect on the date hereof) shall
own directly or indirectly, beneficially or of record,
shares representing 30% or more of the aggregate ordinary
voting power represented by the issued and outstanding
capital stock of FCX; or (b) a majority of the seats (other
than vacant seats) on the board of directors of FCX shall at
any time be occupied by Persons who were not (i) members of
the board of directors of FCX on the Fifth Amendment Closing
Date, (ii) appointed as, or nominated for election as,
directors by a majority of directors who are (x) referred to
in clause (i) and (y) other directors who are appointed or
nominated in accordance with this clause (ii) or
(iii) nominated or appointed by RTZ America, RTZ Indonesia
or any Affiliate of either thereof pursuant to its
participation in the Restructuring as contemplated by the
Letter Agreement dated as of March 7, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ and FTX and FCX and the Stock Purchase Agreement.
"Chase-ALatieF Agreement" means the Credit
Agreement dated as of December 15, 1993, between ALatieF-FI,
the financial institutions named therein and The Chase
Manhattan Bank (National Association), as Agent.
"Circle C Agreement" means the Credit Agreement
dated as of February 6, 1992, as amended, by and between
Circle C Land Corp. and TCB.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" means, with respect to each Bank, the
Commitment of such Bank hereunder to make revolving loans as
set forth on Schedule II hereto, or in the Commitment
Transfer Supplement pursuant to which such Bank assumed its
Commitment, as the same may be permanently terminated or
reduced from time to time pursuant to Section 3.7 and
pursuant to assignments by such Bank pursuant to
Section 10.3. The Commitment of each Bank shall
automatically and permanently terminate on the Maturity
Date.
"Commitment Fee" has the meaning assigned to such
term in Section 3.6(a).
"Commitment Termination Date" has the meaning
assigned to such term in Section 3.6(a).
"Commitment Transfer Supplement" means a
Commitment Transfer Supplement entered into by a Bank and an
assignee, and accepted by the Administrative Agent, in the
form of Exhibit D or such other form as shall be approved by
the Administrative Agent.
"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 FI pursuant to the Contract
of Work, as such agreements may be amended and in effect
from time to time.
"Contract of Work" shall mean 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
FI, 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, as such agreement may be implemented,
supplemented or amended as permitted hereby from time to
time.
"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
ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Corporate Group Facility" means this Agreement
and the FCX Credit Agreement.
"Corporate Group Loan Exposure" means the sum of
Loan Exposure plus FCX Credit Agreement Loan Exposure.
"Corporate Group Loans" means the Loans made
hereunder and the FCX Credit Agreement Loans made under the
FCX Credit Agreement.
"Corporate Group Notes" means the Promissory Notes
and the FCX Agreement Notes.
"Credit Event" means the making of a Loan.
"Debt" of any Person means, without duplication,
(a) all obligations of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all
obligations of such Person for the unearned balance of any
payment received under any contract outstanding for 180
days, (d) all obligations of such Person under conditional
sale or other title retention agreements relating to
property or assets purchased by such Person, (e) all
obligations of such Person issued or assumed as the deferred
purchase price of property or services (excluding trade
accounts payable and accrued obligations incurred in the
ordinary course of business so long as the same are not 180
days overdue or, if overdue, are being contested in good
faith and by appropriate proceedings), (f) all Debt of
others secured by (or for which the holder of such Debt has
an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person,
whether or not the obligations secured thereby have been
assumed, (g) all Guarantees by such Person of Debt of
others, (h) all Capitalized Lease Obligations of such
Person, (i) all recourse obligations of such Person with
respect to sales of accounts receivable which would be shown
under GAAP on the balance sheet of such Person as a
liability, (j) all obligations of such Person as an account
party (including reimbursement obligations to the issuer of
a letter of credit) in respect of bankers' acceptances and
letters of credit Guaranteeing Debt and (k) all
non-contingent obligations of such Person as an account
party (including reimbursement obligations to the issuer of
a letter of credit) in respect of letters of credit other
than those referred to in clause (j) above. The Debt of any
Person shall include the Debt of any partnership in which
such Person is a general partner but shall exclude
obligations under leases which are characterized as
Operating Leases.
"Default" means any event or condition which upon
the giving of notice or lapse of time or both would become
an Event of Default.
"Depositary" means Chase in its capacity as
Depositary under the FI Trust Agreement for the Sales
Proceeds Account and the Special Account.
"Dollars" or "$" means United States Dollars.
"Domestic Office" means, for any Bank, the
Domestic Office set forth for such Bank on the signature
pages hereof, unless such Bank shall designate a different
Domestic Office by notice in writing to the Administrative
Agent, FI and FCX.
"EBITDA" means, for any fiscal quarter, the sum of
FI's or FCX's, as applicable (a) consolidated net income
(loss) after taxes (before deducting minority interests in
net income (loss) of consolidated subsidiaries, but
disregarding all extraordinary or unusual noncash items in
calculating such net income); (b) consolidated interest paid
or accrued on the Loans to FI or FCX, as applicable, and on
other consolidated Debt of FI (including, in the case of FI,
intercompany Debt owed to FCX) or FCX, as applicable, during
such quarter and deducted in determining consolidated net
income; (c) consolidated depreciation, depletion and
amortization charges deducted in computing FI's or FCX's, as
applicable, consolidated net income; and (d) provision for
income taxes deducted in computing FI's or FCX's, as
applicable, consolidated net income; provided that such
calculations of items (a) through (d) will exclude items
relating to Nonrestricted Subsidiaries.
"EBITDA Ratio" means at the end of any fiscal
quarter, the cumulative sum, for the four consecutive fiscal
quarters ending with such quarter, for FI or FCX, as
applicable, of (a) EBITDA to (b) consolidated interest
expense and capitalized interest paid or accrued on
consolidated Debt of FI (including, in the case of FI,
intercompany Debt owed to FCX) or FCX, as applicable,
including the Corporate Group Loans and outstanding
intercompany Debt, during such period; provided that such
calculations of items (a) and (b) will exclude items
relating to Nonrestricted Subsidiaries.
"environment" shall mean ambient air, surface
water and groundwater (including potable water, navigable
water and wetlands), the land surface or subsurface strata
or as otherwise defined in any Environmental Law.
"Environmental Claim" means any written notice of
violation, claim, demand, order, directive, cost recovery
action or other cause of action by, or on behalf of, any
Governmental Authority or any Person for damages, injunctive
or equitable relief, personal injury (including sickness,
disease or death), Remedial Action costs, tangible or
intangible property damage, natural resource damages,
nuisance, pollution, any adverse effect on the environment
caused by any Hazardous Material, or for fines, penalties or
restrictions, resulting from or based upon: (a) the
existence, or the continuation of the existence, of a
Release (including sudden or non-sudden, accidental or non-
accidental Releases); (b) exposure to any Hazardous
Material; (c) the presence, use, handling, transportation,
storage, treatment or disposal of any Hazardous Material; or
(d) the violation of any Environmental Law or Environmental
Permit.
"Environmental Law" means any and all applicable
treaties, laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of
any Hazardous Material or to health and safety matters (and,
in the case of FI, the equivalent substances to which the
Contract of Work or the environmental Governmental Rules of
Indonesia apply), including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
by the Superfund Amendments and Reauthorization Act of 1986,
42 U.S.C. Section 9601 et seq. (collectively "CERCLA"), the
Solid Waste Disposal Act, as amended by the Resource ▇▇▇▇▇▇-
vation and Recovery Act of 1976 and Hazardous and Solid
Amendments of 1984, 42 U.S.C. Section 6901 et seq., the
Federal Water Pollution Control Act, as amended by the Clean
Water Act of 1977, 33 U.S.C. Section 1251 et seq., the Clean
Air Act of 1970, as amended 42 U.S.C. Section 7401 et seq.,
the Toxic Substances Control Act of 1976, 15 U.S.C. Section
2601 et seq., the Occupational Safety and Health Act of 1970,
as amended, 29 U.S.C. Section 651 et seq., the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
Section 11001 et seq., the Safe Drinking Water Act of 1974,
as amended, 42 U.S.C. Section 300(f) et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801 et seq.,
and any similar or implementing state or local law, and all
amendments or regulations promulgated thereunder.
"Environmental Permit" means any permit, approval,
authorization, certificate, license, variance, filing or
permission required by or from any Governmental Authority
pursuant to any Environmental Law.
"Equity Payment" means (i) any dividend on, or
purchase, redemption or other payment, whether in cash or in
kind, in respect of, the capital stock of FCX or FI as
applicable, (ii) purchases by FI of capital stock of FCX and
(iii) purchases by FCX of capital stock of FI.
"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 FI and
FCX, is treated as a single employer under Section 414(b) or
(c) of the Code or, solely for purposes of Section 302 of
ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" means (i) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued
thereunder, with respect to a Plan; (ii) the adoption of any
amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code; (iii)
the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code),
whether or not waived; (iv) the incurrence of any liability
under Title IV of ERISA with respect to any Plan or
Multiemployer Plan, other than any liability for
contributions not yet due or payment of premiums not yet
due; (v) the receipt by FI, FCX or any ERISA Affiliate from
the PBGC of any notice relating to the intention of the PBGC
to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (vi) the receipt by FI, FCX or any
ERISA Affiliate of any notice concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; and
(vii) any other similar event or condition with respect to a
Plan or Multiemployer Plan that could reasonably result in
liability of FI or FCX.
"Event of Default" means any Event of Default
defined in Article VII.
"FCX" means Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation.
"FCX Agent" means Chemical as administrative agent
for the FCX Lenders under the FCX Credit Agreement.
"FCX Agreement Notes" means the promissory notes
of FCX issued to the FCX Lenders pursuant to the FCX Credit
Agreement.
"FCX Borrowing Base Debt" means (i) all Debt of
FCX (including Loans to FCX but including only one-half of
the principal amount of Subordinated Debt of FCX and
excluding (x) all Debt, the proceeds of which were on-loaned
to FI giving rise to Debt which constitutes FI Borrowing
Base Debt, and (y) the Guarantee referred to in Section
5.2(g)(ix)), minus FCX Free Cash divided by (ii) FCX's
direct and indirect percentage ownership interest in FI.
"FCX Collateral Agent" means Chemical in its
capacity as FCX Collateral Agent for the Banks, the FI
Lenders, the FM Lenders, the Pel-Tex Bank Lenders, TCB and
the holders of the BV Notes under the FCX Pledge Agreements.
"FCX Credit Agreement" means the Credit Agreement
dated as of June 30, 1995, among FI, FCX, the FCX Lenders,
the FI Trustee, Chemical, as the administrative agent and
Chase, as the documentary agent, as the same may be amended
and in effect from time to time.
"FCX Credit Agreement Loan" means any loan made by
the FCX Lenders pursuant to the FCX Credit Agreement.
"FCX Credit Agreement Loan Exposure" means the
aggregate amount of unpaid principal of all FCX Credit
Agreement Loans made by the FCX Lenders.
"FCX Credit Agreement Total Commitment" means
$200,000,000, the committed amount under the FCX Credit
Agreement, as the same may be permanently terminated or
reduced from time to time.
"FCX Credit Event" means the making of an FCX
Credit Agreement Loan.
"FCX/FMPO Guarantee" means the Guaranty Agreement
dated as of the Fifth Amendment Closing Date, as such
agreement may be amended and in effect from time to time, by
FCX in respect of the Circle C Agreement, the FM Credit
Agreement and the Pel-Tex Agreement (as such term is defined
in the FCX Intercreditor Agreement).
"FCX Free Cash" means the lesser of (i) the then
outstanding FCX Borrowing Base Debt (calculated without
subtracting FCX Free Cash) and (ii) 95% of all amounts above
$30,000,000 held by FCX on an unconsolidated basis in
unencumbered cash or unencumbered Permitted Investments.
"FCX Indonesian Pledge Agreement" means the pledge
agreement substantially in the form of Exhibit E-2 to the
FCX Credit Agreement between FCX and the FCX Collateral
Agent pursuant to which FCX creates a perfected first
priority security interest under Indonesian law in 50.1% (on
a fully diluted basis) of the capital stock of FI for the
ratable benefit of the Banks, the holders of the B.V. Notes,
the FM Lenders, the Pel-Tex Lenders, TCB and the FI Lenders.
"FCX Intercreditor Agreement" means the
Intercreditor Agreement entered into as of the Fifth
Amendment Closing Date in the form of Exhibit H to the FCX
Credit Agreement, among the Administrative Agent on behalf
of the Banks, the FM Agent on behalf of the FM Lenders,
Hibernia National Bank as agent for the Pel-Tex Lenders, the
FCX Agent on behalf of the FCX Lenders, TCB and Chemical, as
FCX Collateral Agent, as such agreement may be further
amended and in effect from time to time.
"FCX Lenders" means the banks party to the FCX
Credit Agreement.
"FCX Pledge Agreements" means the FCX U.S. Pledge
Agreement and the FCX Indonesian Pledge Agreement.
"FCX U.S. Pledge Agreement" means the pledge
agreement substantially in the form of Exhibit E-1 to the
FCX Credit Agreement between FCX and the FCX Collateral
Agent pursuant to which FCX creates a perfected first
priority security interest under U.S. law in 50.1% (on a
fully diluted basis) of the capital stock of FI for the
ratable benefit of the Banks, the holders of the B.V. Notes,
the FM Lenders, the Pel-Tex Lenders, TCB and the FI Lenders.
"FI Agent" means Chemical as agent for the FI
Lenders under this Agreement.
"FI Agreement Notes" means the promissory notes of
FI issued to the FI Lenders pursuant to this Agreement.
"FI Borrowing Base Debt" means, without
duplication, (x) all Debt of FI, including the Corporate
Group Loans to FI but excluding all outstanding indebtedness
under the RTZ Loan Agreement and Subordinated Debt of FI to
the extent (a) in the case of Subordinated Debt from FI to
FCX reflecting preferred stock of FCX without mandatory
redemption provisions prior to the Maturity Date, the
principal and interest on such Subordinated Debt was
deducted from cash flows during the remaining period until
the Maturity Date in the most recent Borrowing Base
Certificate and (b) in the case of other Subordinated Debt
of FI, all scheduled principal and interest thereon were
deducted from cash flows in the most recent Borrowing Base
Certificate (provided further that if principal and interest
on any Subordinated Debt is not reflected in the most recent
Borrowing Base Certificate, 50% of the principal amount of
such Subordinated Debt shall be included as FI Borrowing
Base Debt), minus (y) FI Free Cash.
"FI Collateral and Rights" has the meaning
assigned to such term in Section 5.2(o).
"FI Free Cash" means the lesser of (i) the then
outstanding FI Borrowing Base Debt (calculated without
subtracting FI Free Cash) and (ii) 95% of all amounts above
$30,000,000 held by FI on an unconsolidated basis in
unencumbered cash or unencumbered Permitted Investments.
"FI Intercreditor Agreement" means the
Intercreditor Agreement entered into as of the RTZ Closing
Date in the form to be agreed pursuant to Section 10.17
among the Administrative Agent on behalf of the Banks, the
FCX Agent on behalf of the FCX Lenders, RTZ Lender, PT-RTZ
and the FI Trustee, as such agreement may be further amended
and in effect from time to time.
"FI Obligations" has the meaning assigned to such
term in Section 9.1.
"FI Product" means ores or minerals produced by
the FI Project or otherwise obtained from the Mining Area
(as defined in the Contract of Work) and any kinds of
products, including, without limitation, concentrates,
produced from such ores or minerals.
"FI Project" means the mining, concentrating and
related operations conducted or to be conducted by FI in
Irian Jaya, Indonesia, pursuant to the Contract of Work.
"FI Receivables Purchase Agreement" means any
agreement entered into by FI with respect to the sale by FI
of accounts receivable.
"FI Security Documents" means the FI Trust
Agreement, the Surat Kuasa, the Fiduciary Transfer, the
Fiduciary Assignment, the Fiduciary Power and all Uniform
Commercial Code financing statements and their Indonesian
equivalents required to be filed hereunder or under the FI
Security Documents.
"FI Trust Agreement" means the Interim FI Trust
Agreement or the Final FI Trust Agreement, as then
applicable.
"FI Trustee" means First Trust of New York,
National Association, or any successor trustee, as trustee
for the Banks and the FCX Lenders pursuant to the FI Trust
Agreement and, in such capacity, as security agent for the
Banks and the FCX Lenders under the FI Security Documents.
"Fiduciary Assignment" means the Interim Fiduciary
Assignment or the Final Fiduciary Assignment, as then
applicable.
"Fiduciary Power" means the Interim Fiduciary
Power or the Final Fiduciary Power, as then applicable.
"Fiduciary Transfer" means the Interim Fiduciary
Transfer or the Final Fiduciary Transfer, as then
applicable.
"Fifth Amendment Closing Date" has the meaning
assigned to such term in Section 2(b) of the Amendment
Agreement.
"Final FI Trust Agreement" means the Trust
Agreement dated as of May 15, 1970, among FI, PT-RTZ, the
Depositary and the FI Trustee (as successor to ▇▇▇▇▇▇
Guaranty Trust Company of New York), as amended in the form
to be agreed pursuant to Section 10.17 and as attached as
Exhibit G-1 to the FCX Credit Agreement as of the RTZ
Closing Date and as further amended and in effect from time
to time thereafter.
"Final Fiduciary Assignment" means the Fiduciary
Assignment of Accounts Receivable (the Penyerahan Hak Atas
Tagihan) dated December 30, 1991, granted by FI to the FI
Trustee, as the same may be amended in the form to be agreed
pursuant to Section 10.17 and as attached as Exhibit G-5 to
the FCX Credit Agreement as of the RTZ Closing Date and as
further amended and in effect from time to time thereafter.
"Final Fiduciary Power" means the Power of
Attorney to Establish Fiduciary Transfer (Kuasa Untuk
Memasang Penyerahan Hak Milik Fidusia) dated December 30,
1991, granted by FI to the FI Trustee (the "Amended
Fiduciary Power"), as the same may be amended in the form to
be agreed pursuant to Section 10.17 and as attached as
Exhibit G-4 to the FCX Credit Agreement as of the RTZ
Closing Date and as further amended and in effect from time
to time thereafter.
"Final Fiduciary Transfer" means the Fiduciary
Transfer of Assets (Penyerahan ▇▇▇ ▇▇▇▇▇▇ Fidusia) dated
December 30, 1991, granted by FI to the FI Trustee, as the
same may be amended and in the form to be agreed pursuant to
Section 10.17 and as attached as Exhibit G-3 to the FCX
Credit Agreement as of the RTZ Closing Date and as further
amended and in effect from time to time thereafter.
"Final Surat Kuasa" means the Surat Kuasa (Power
of Attorney) dated December 30, 1991, granted by FI to the
FI Trustee as the same may be amended in the form to be
agreed pursuant to Section 10.17 and as attached as
Exhibit G-2 to the FCX Credit Agreement as of the RTZ
Closing Date and as further amended and in effect from time
to time thereafter.
"Financial Officer" of any corporation means the
principal financial officer, principal accounting officer,
treasurer, assistant treasurer or controller of such corpo-
ration.
"FM Agent" means Chemical as administrative agent
for the FM Lenders.
"FM Credit Agreement" means the Credit Agreement
dated as of June 30, 1995, among FM Properties, FTX, FCX,
the banks party thereto, the FM Agent and Chase, as
documentary agent for such banks, as the same may be amended
or replaced from time to time.
"FM Lenders" means the banks party to the FM
Credit Agreement.
"FM Properties" means FM Properties Operating Co.,
a Delaware general partnership whose partners are FTX and FM
Properties, Inc.
"FRP" means Freeport-McMoRan Resource Partners,
Limited Partnership, a Delaware limited partnership.
"FTX" means Freeport-McMoRan Inc., a Delaware
corporation.
"GAAP" has the meaning assigned to such term in
Section 1.2.
"Governmental Authority" means any United States
or Indonesian Federal, state, local or any foreign court or
governmental agency, authority, instrumentality or
regulatory body.
"Governmental Rule" means any statute, law,
treaty, rule, code, ordinance, regulation, permit,
certificate or order of any Governmental Authority or any
judgment, decree, injunction, writ, order or like action of
any court, arbitrator or other judicial or quasijudicial
tribunal.
"Guarantee" means, with respect to any Person, any
obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing
any Debt or obligation of any other Person in any manner,
whether directly or indirectly, and including, without
limitation, any agreement or obligation (i) to pay dividends
or other distributions upon the stock of such other Person,
or any obligation of such other Person, direct or indirect,
(ii) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or obligation or to
purchase (or advance or supply funds for the purchase of)
any security for the payment of such Debt, obligation,
dividend or distribution, (iii) to purchase or lease
property, securities or services for the purpose of assuring
the owner of such Debt or obligation or the holder of such
stock of the payment of such Debt, obligation, dividend or
distribution including, without limitation, any take-or-pay
contract or agreement to buy a minimum amount or quantity of
production or to provide an operating subsidy which, in each
case, is utilized for a third party financing, or (iv) to
maintain working capital, equity capital or any other
financial statement condition of the primary obligor, so as
to enable the primary obligor to pay such Debt, obligation,
dividend or distribution; provided, however, that the term
Guarantee shall not include any endorsement for collection
or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or
radioactive substances or wastes, hazardous or toxic
substances or wastes, pollutants, solid, liquid or gaseous
wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated
biphenyls ("PCBs") or PCB-containing materials or equipment,
radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedge Agreement" means any interest rate,
currency or commodity swap, cap, floor or collar agreement
or similar hedging arrangement providing for the transfer or
mitigation of interest rate, commodity price or currency
value or exchange rate risks, either generally or under
specific contingencies.
"Implementation Agreement" means the
Implementation Agreement dated as of May 2, 1995, between
FCX and RTZ as approved by the Banks (it being understood
and agreed that the form of the documents attached thereto
as Exhibits, including without limitation the Participation
Agreement, the RTZ Loan Agreement and any assignment of FI's
interest in the Contract of Work or the FI Project, are
subject to the approval of the Banks pursuant to Section
10.17) and in effect on the Fifth Amendment Closing Date and
as amended from time to time as permitted by Section 5.3.
"Index Debt" means the senior, unsecured, non-
credit enhanced, long-term indebtedness for borrowed money
of FCX, or if no such indebtedness of FCX is then rated by
▇▇▇▇▇'▇ or S&P, the B.V. Notes so long as the B.V. Notes are
rated by ▇▇▇▇▇'▇ and S&P.
"Indocopper Shareholders Agreement" means the
Amended and Restated Shareholders Agreement dated as of
November 12, 1992, by and among P.T. Indocopper Investama
Corporation, FCX, certain individuals and P.T. Bakrie
Investindo.
"Indonesian Taxes" means all present and future
income, franchise, stamp, property and other taxes, levies,
imposts, deductions, charges, compulsory loans and
withholdings whatsoever imposed, assessed, levied or
collected by Indonesia or any political subdivision or
taxing authority thereof or therein or any association or
organization of which Indonesia may be a member (but
excluding taxes or other similar governmental charges, fees
or assessments imposed upon the net income of, or any
franchise taxes imposed on, the Administrative Agent, the FI
Trustee or any Bank (or Transferee) which has its principal
office in Indonesia or a branch office in Indonesia, unless
and to the extent attributable to the enforcement of any
rights hereunder or under any FI Security Document with
respect to an Event of Default), together with interest
thereon and penalties, fines and surcharges and other
liabilities with respect thereto, if any, on or in respect
of this Agreement, the Loans to FI, the FI Security
Documents, the Assigned Agreements or the Corporate Group
Notes of FI, the execution enforcement, registration,
recordation, notarization, or other formalization, of any
thereof, and any payments of principal, interest, charges,
fees or other amounts made on, under or in respect of any
thereof.
"Interest Payment Date" means (i) as to any
Reference Rate Loan, the next succeeding March 31, June 30,
September 30 or December 31 (subject to Section 3.16), or if
earlier, the Maturity Date, and (ii) as to any LIBO Rate
Loan, the last day of the Interest Period applicable to such
Loan (and, in the case of any Interest Period of more than
three months' duration, the date that would be the last day
of such Interest Period if such Interest Period were of
three months' duration) and the date of any continuation or
conversion of such Loan as or into a Loan of the same or a
different type.
"Interest Period" means (i) as to any LIBO Rate
Loan, the period commencing on the date of such LIBO Rate
Loan or on the last day of the immediately preceding
Interest Period applicable to such Loan, as the case may be,
and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day)
in the calendar month that is 1, 2, 3 or 6 months
thereafter, as FI may elect, and (ii) as to any Reference
Rate Loan, the period commencing on the date of such
Reference Rate Loan or on the last day of the immediately
preceding Interest Period applicable to such Loan, as the
case may be, and ending on the earliest of (x) the next
succeeding March 31, June 30, September 30 or December 31,
(y) the Maturity Date and (z) the date such Loan is prepaid
or converted as permitted hereby; provided, however, that
(1) if any Interest Period would end on a day that shall not
be a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless, with respect to
LIBO Rate Loans only, 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, (2) no Interest Period with respect to any Loan shall
end later than the Maturity Date and (3) interest shall
accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest
Period.
"Interim FI Trust Agreement" means the Trust
Agreement dated as of May 15, 1970, among FI, the Depositary
and the FI Trustee (as successor to ▇▇▇▇▇▇ Guaranty Trust
Company of New York), as amended in the form of Exhibit F-1
to the FCX Credit Agreement as of the Fifth Amendment
Closing Date and as further amended and in effect from time
to time prior to the RTZ Closing Date.
"Interim Fiduciary Assignment" means the Fiduciary
Assignment of Accounts Receivable (the Penyerahan Hak Atas
Tagihan) dated December 30, 1991, granted by FI to the FI
Trustee, as the same may be amended in the form of
Exhibit F-5 to the FCX Credit Agreement as of the Fifth
Amendment Closing Date and as further amended and in effect
from time to time prior to the RTZ Closing Date.
"Interim Fiduciary Power" means the Power of
Attorney to Establish Fiduciary Transfer (Kuasa Untuk
Memasang Penyerahan Hak Milik Fidusia) dated December 30,
1991, granted by FI to the FI Trustee (the "Amended
Fiduciary Power"), as the same may be amended in the form of
Exhibit F-4 to the FCX Credit Agreement as of the Fifth
Amendment Closing Date and as further amended and in effect
from time to time prior to the RTZ Closing Date.
"Interim Fiduciary Transfer" means the Fiduciary
Transfer of Assets (Penyerahan ▇▇▇ ▇▇▇▇▇▇ Fidusia) dated
December 30, 1991, granted by FI to the FI Trustee, as the
same may be amended and in the form of Exhibit F-3 to the
FCX Credit Agreement as of the Fifth Amendment Closing Date
and as further amended and in effect from time to time prior
to the RTZ Closing Date.
"Interim Surat Kuasa" means the Surat Kuasa (Power
of Attorney) dated December 30, 1991, granted by FI to the
FI Trustee as the same may be amended in the form of
Exhibit F-2 to the FCX Credit Agreement as of the Fifth
Amendment Closing Date and as further amended and in effect
from time to time prior to the RTZ Closing Date.
"Jaya Power" means P.T. Puncakjaya Power, a
limited liability company organized under Indonesian law,
the shareholders of which are FI and Affiliates of Duke
Energy Corp., PowerLink Corporation and P.T. Austindo
Nusantara Jaya.
"LIBO Rate" means, with respect to any LIBO Rate
Loan for any Interest Period, an interest rate per annum
(rounded upwards, if not already a whole multiple of 1/100
of 1%, to the next higher 1/100 of 1%) equal to the
arithmetic average of the respective rates per annum at
which Dollar deposits approximately equal in principal
amount to the Reference Banks' portions of such LIBO Rate
Loan and for a maturity equal to the applicable Interest
Period are offered in immediately available funds to the
principal London offices of the Reference Banks in the
London Interbank Market at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such
Interest Period.
"LIBO Rate Loan" means any Loan for which interest
is determined, in accordance with the provisions hereof, at
the Applicable LIBO Rate.
"LIBOR Office" means, for any Bank, the LIBOR
Office set forth for such Bank on the signature pages hereof
or as otherwise notified in writing to the Agent and FI,
unless such Bank shall designate a different LIBOR Office by
notice in writing to the Administrative Agent and FI.
"Lien" means with respect to any asset, (a) a
mortgage, deed of trust, lien, pledge, encumbrance, charge
or security interest in or on such asset, (b) the interest
of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement
relating to such asset, (c) in the case of securities, any
purchase option, call or similar right of a third party with
respect to such securities and (d) other encumbrances of any
kind, including, without limitation, production payment
obligations.
"Loan" means any loan made pursuant to
Section 3.1.
"Loan Documents" means the Amendment Agreement,
the Corporate Group Facilities, the Corporate Group Notes,
the FCX Pledge Agreements, the FCX Intercreditor Agreement,
the FI Intercreditor Agreement, the FI Security Documents
and all other agreements, certificates and instruments now
or hereafter entered into in connection with any of the
foregoing, in each case as amended and modified from time to
time.
"Loan Exposure" means the aggregate amount of
unpaid principal of all Loans made by the Banks.
"Major Concentrate Sales Agreement" means any
Concentrate Sales Agreement with aggregate sales during the
term thereof of at least $75,000,000.
"Margin Stock" has the meaning assigned to such
term in Regulation U.
"Material Adverse Effect" means (a) a materially
adverse effect on the business, assets, operations,
prospects or condition, financial or otherwise, of FI or
FCX, as applicable, and their Subsidiaries taken as a whole,
(b) material impairment of the ability of FI or FCX, as
applicable, or any of their Subsidiaries to perform any of
its obligations under any Loan Document to which it is or
will be a party or (c) material impairment of the rights of
or benefits available to the Banks under any Loan Document.
"Maturity Date" means December 31, 1999, or, if
earlier, the date of termination of the Commitments pursuant
to the terms hereof.
"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 FI as amended, modified or
supplemented as permitted hereby from time to time.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which FI, FCX or
any ERISA Affiliate is making or accruing an obligation to
make contributions, or has within any of the preceding five
plan years made or accrued an obligation to make
contributions.
"Net Proceeds" means (i) the gross fair market
value of the consideration or other amounts payable to or
receivable by FI or any Restricted Subsidiary of FI in
respect of any Net Proceeds Transaction less (ii) the
amount, if any, of all taxes (but only to the extent such
Person reasonably estimates that such taxes will be paid on
the date of the next tax filing by such Person or such
affiliate of such Person), and reasonable and customary
fees, commissions, costs and other expenses (other than
those payable to FI or FCX or any Restricted Subsidiary)
which are incurred in connection with such Net Proceeds
Transaction and are payable by the seller or the transferor
of the assets or property subject to such Net Proceeds
Transaction, but only to the extent not already deducted in
arriving at the amount referred to in clause (i), and less
(iii) amounts used within 120 days from the date of closing
or effectiveness of the Net Proceeds Transaction by the
seller or transferor to purchase other assets used in the
business of it and its Wholly Owned Restricted Subsidiaries
and not pledged or encumbered to any other Person.
"Net Proceeds Transactions" means any sales,
transfers, distributions or other dispositions (including by
merger or consolidation) of assets or properties (including
any capital or other equity interests) owned by FI or its
Restricted Subsidiaries, but excluding (a) the ALatieF
Transaction, the PFT Transaction, the P&O Transaction, the
Airfast Transaction and the Waste Water Transaction, (b)
sale and leaseback transactions permitted by
Section 5.2(g)(vi), (c) dispositions of obsolete or worn-out
property or real estate not used or useful in its business,
(d) permitted transfers of assets from FI or FCX to a
Restricted Subsidiary or from a Restricted Subsidiary to FI
or FCX or another Restricted Subsidiary, (e) sales or other
dispositions of Nonrestricted Subsidiaries or interests
therein, (f) sales or other dispositions by Nonrestricted
Subsidiaries of their assets, (g) direct sales of equity by
FI or a Restricted Subsidiary of FI, (h) sales of accounts
receivable, (i) transfers of assets pursuant to permitted
sale and leaseback transactions and (j) the granting of the
RTZ Interests to PT-RTZ as contemplated by the Participation
Agreement.
"1994 Form l0-K" has the meaning assigned to such
term in Section 4.1(e).
"Nonrestricted Subsidiary" means (i) any of the
Subsidiaries listed on Schedule III to the FCX Credit
Agreement as a Nonrestricted Subsidiary, (ii) any Subsidiary
of any Nonrestricted Subsidiary and (iii) any surviving
corporation (other than FI or FCX or a Restricted
Subsidiary) into which any of such corporations referred to
in clause (i) or (ii) is merged or consolidated, subject to
Section 5.2(c), and (iv) any Subsidiary organized after the
date of this Agreement for the purpose of acquiring the
stock or assets of another Person or for start-up ventures
or exploration programs or activities and designated as a
Nonrestricted Subsidiary by FCX at the time of its
organization. By written notice to the Administrative
Agent, FCX may (x) declare any Nonrestricted Subsidiary to
be a Restricted Subsidiary and such former Nonrestricted
Subsidiary shall thereafter be deemed to be a Restricted
Subsidiary for all purposes of this Agreement or (y) at any
time other than when a Default or Event of Default has
occurred and is continuing or would exist after giving
effect to such declaration, in any fiscal year, declare one
or more Restricted Subsidiaries, the interest of FCX in all
of which has an equity value or loan investment of less than
$5,000,000 in the aggregate, to be a Nonrestricted
Subsidiary and any such former Restricted Subsidiary shall
thereafter be deemed to be a Nonrestricted Subsidiary for
all purposes of this Agreement.
"Operating Lease" means any lease other than a
lease giving rise to a Capitalized Lease Obligation.
"Participation Agreement" means the Participation
Agreement between FI and PT-RTZ as approved by the Banks
pursuant to Section 10.17 and in effect on the RTZ Closing
Date and as amended from time to time as permitted by
Section 5.3.
"PBGC" means the Pension Benefit Guaranty Corpora-
tion referred to and defined in ERISA.
"Pel-Tex Lenders" has the meaning assigned to such
term in the FCX Intercreditor Agreement.
"Permitted Investments" means (a) certificates of
deposit of, or other bank accounts with, banks (or with
their branches) having a short-term deposit rating issued by
Moody's of P-l; (b) investments in readily marketable money
market funds having assets in excess of one billion dollars,
which assets have an average life of less than one year and
an average quality of at least "A" as rated by S&P or
Moody's; and (c) commercial paper rated A-1 by S&P or P-l by
Moody's.
"Permitted Secured Hedge" means any Hedge
Agreement between FI or FCX and any Bank that shall be
ratably secured pursuant to (x) the FCX Pledge Agreements,
in the case of such Hedge Agreements with FCX, or (y) in the
case of any such Hedge Agreements with FI, the FI Security
Documents.
"Person" means any natural person, corporation,
partnership, joint venture, trust, incorporated or
unincorporated association, joint stock company, government
(or an agency or political subdivision thereof) or other
entity of any kind.
"PFT Assets" means certain specified power
generation and transmission assets sold by FI to Jaya Power
pursuant to the PFT Documents.
"PFT Documents" means the agreements governing the
PFT Transaction as in effect on the Fifth Amendment Closing
Date and as amended from time to time as permitted by
Section 5.2(o).
"PFT Obligations" mean all the obligations of FI
relating to the PFT Transaction.
"PFT Transaction" means FI's sale of the PFT
Assets to Jaya Power, the related financing transaction for
such purchase, the entering into various contracts relating
to the supply and purchase of the electric power generated
from the PFT Assets and the making by FI an equity
investment of up to $17,750,000 in Jaya Power, all
substantially on the terms described in the PFT Documents.
"Plan" means any employee pension benefit plan
(other than a Multiemployer Plan) which is subject to the
provisions of Title IV of ERISA or Section 412 of the Code
and in respect of which FI, FCX 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.
"Policies", with respect to the Administrative
Agent and any Bank in connection with determinations
relating to the Borrowing Base, means the normal policy
guidelines on price parameters, cost escalations and
discount and other factors and technical assumptions
customarily used by the Administrative Agent or such Bank in
evaluating energy and natural resource-related credits.
"Portfolio Investments" means customary portfolio
cash management investments made pursuant to prudent cash
management practices.
"Power Facilities Transfer" means, collectively,
each transfer by FI of electric power generation and
transmission facilities with arrangements providing for the
continued supply of electric power to the FI Project, all as
required by the PFT Documents.
"P&O" means ALatieF P&O Port Development Company,
a joint venture company incorporated in Indonesia with
shareholdings by P&O Australia Limited, ALatieF and certain
other Persons.
"P&O Assets" means certain specified port
facilities, construction and maintenance-related assets
transferred by FI to P&O pursuant to the P&O Documents.
"P&O Documents" means the agreements governing the
sale and leaseback transaction between FI and P&O as in
effect on the Fifth Amendment Closing Date and as amended
from time to time as permitted by Section 5.2(o).
"P&O Obligations" mean all obligations of FI
relating to the P&O Transaction.
"P&O Transaction" means FI's sale of the P&O
Assets to P&O, the entering into of various contracts
relating to the use by FI of the P&O Assets and the related
financing, all substantially as provided in the P&O
Documents.
"Promissory Notes" means the promissory notes of
FI and FCX referred to in Section 3.4.
"Properties" has the meaning assigned such term in
Section 4.1(n)(1).
"PT-RTZ" means a limited liability company
organized under the laws of Indonesia and a wholly owned
subsidiary of RTZ.
"Reference Banks" means Chemical and Chase.
"Reference Rate Loan" means any Loan for which
interest is determined, in accordance with the provisions
hereof, at the Applicable Reference Rate.
"Register" has the meaning assigned such term in
Section 10.3(d).
"Regulation D" means Regulation D of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation G" means Regulation G of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Release" means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing,
dispersing, emanating or migrating of any Hazardous Material
in, into, onto or through the environment.
"Remedial Action" means (a) "remedial action" as
such term is defined in CERCLA, 42 U.S.C. Section 9601(24),
and (b) all other actions required by any Governmental
Authority or voluntarily undertaken to: (i) cleanup, remove,
treat, ▇▇▇▇▇ or in any other way address any Hazardous
Material in the environment; (ii) prevent the Release or
threat of Release, or minimize the further Release of any
Hazardous Material so it does not migrate or endanger or
threaten to endanger public health, welfare or the
environment; or (iii) perform studies and investigations in
connection with, or as a precondition to, (i) or (ii) above.
"Required Banks" means, subject to Section
10.7(b), at any time Banks having Commitments representing
at least 66-2/3% of the aggregate Commitments hereunder or,
if the Commitments have been terminated, Banks holding Loans
representing at least 66 2/3% of the aggregate principal
amount of the Loans.
"Responsible Officer" of any corporation means any
executive officer or Financial Officer of such corporation
and any other officer or similar official thereof responsi-
ble for the administration of the obligations of such corpo-
ration in respect of this Agreement.
"Restricted Subsidiary" means FI and any other
Subsidiary of FCX or FI that is not a Nonrestricted
Subsidiary.
"Restructuring" means the transactions between FTX
and FCX (on the one hand) and RTZ, RTZ Indonesia and RTZ
America (on the other hand) pursuant to the Stock Purchase
Agreement, and the distribution on a generally tax free
basis (subject to exceptions approved by the Administrative
Agent and the Documentary Agent) by FTX to its shareholders
of the shares of FCX, thereby leaving FTX as a holding
company for FRP and leaving FCX as the publicly held holding
company for FI, together with arrangements required by or
effectuated in connection with such distribution with
respect to existing contractual agreements and indebtedness
of FTX, FRP, FCX and FI, all on terms substantially the same
as those disclosed in writing to the Banks prior to the
Fifth Amendment Closing Date or otherwise satisfactory to
the Required Banks (including all tax, accounting, corporate
and partnership matters).
"RTZ" means the RTZ Corporation PLC, a company
organized under the laws of England.
"RTZ America" means RTZ America, Inc., a Delaware
corporation and a wholly owned subsidiary of RTZ.
"RTZ Closing Date" has the meaning assigned to
such term in Section 6.1(c).
"RTZ Collateral" means FI's 60% share of
Incremental Expansion Cashflow (as defined in the
Participation Agreement) pledged to RTZ Lender as
contemplated by the RTZ Loan Agreement.
"RTZ Indonesia" means RTZ Indonesia Limited, a
company organized under the laws of England and a wholly
owned subsidiary of RTZ.
"RTZ Interests" means the interests of PT-RTZ in
the Contract of Work and in the Joint Operations, Sole Risk
Programmes of RTZ and the Joint Account Assets (as such
terms are defined in the Participation Agreement) as
permitted by Section 5.3, the FI Intercreditor Agreement and
the FI Trust Agreement.
"RTZ Lender" means a company to be organized
pursuant to the Participation Agreement under the laws of
England and a wholly owned subsidiary of RTZ.
"RTZ Loan Agreement" means the Loan Agreement
between the RTZ Lender and FI as approved by the Banks
pursuant to Section 10.17 and in effect on the RTZ Closing
Date and as amended from time to time as permitted by
Section 5.3.
"RTZ Transactions" means the transactions
contemplated by the Implementation Agreement, the
Participation Agreement and the RTZ Loan Agreement as
described in Schedule VII to the FCX Credit Agreement and as
otherwise approved by the Banks pursuant to Section 10.17.
"Sales Proceeds Account" has the meaning assigned
to such term in the FI Trust Agreement.
"S&P" means Standard & Poor's Ratings Group, a
division of ▇▇▇▇▇▇-▇▇▇▇, Inc.
"SEC" means the Securities and Exchange Commis-
sion.
"Special Account" has the meaning assigned to such
term in the FI Trust Agreement.
"Specified Assets" means those assets released
from the Lien of the FI Security Documents and transferred
by FI as required by the Specified Documents.
"Specified Documents" mean the Airfast Documents,
the ALatieF-FI Documents, the Caterpillar Documents, the PFT
Documents, the P&O Documents and the Waste Water Documents.
"Specified Obligations" mean the Airfast
Obligations, the ALatieF-FI Obligations, the Caterpillar
Obligations, the PFT Obligations, the P&O Obligations and
the Waste Water Obligations.
"Specified Transactions" mean the Airfast
Transaction, the ALatieF-FI Transaction, the Caterpillar
Transaction, the PFT Transaction, the P&O Transaction and
the Waste Water Transaction.
"Statutory Reserves" means a fraction (expressed
as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the
aggregate of the maximum reserve percentages (including,
without limitation, any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by
the Board and any other banking authority, domestic or
foreign, to which the Administrative Agent or any Bank
(including any branch, Affiliate, or other funding office
making or holding a Loan) is subject (a) with respect to the
Base CD Rate (as such term is used in the definition of
"Alternate Base Rate"), for new negotiable nonpersonal time
deposits in Dollars of over $100,000 with maturities
approximately equal to the applicable Interest Period, and
(b) with respect to the LIBO Rate, for Eurocurrency
Liabilities (as defined in Regulation D). Such reserve
percentages shall include, without limitation, those imposed
under Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change
in any reserve percentage.
"Stock Purchase Agreement" means the Agreement
dated as of May 2, 1995, by and between FTX, FCX, RTZ, RTZ
Indonesia and RTZ America as approved by the Banks and in
effect on the Fifth Amendment Closing Date and as amended
from time to time as permitted by Section 5.3.
"Subordinated Debt" means Debt of FI which is
subordinated to the Corporate Group Loans on terms approved
by the Administrative Agent.
"Subsidiary" means as to any Person, any
corporation at least a majority of whose securities having
ordinary voting power for the election of directors (other
than securities having such power only by reason of the
happening of a contingency) are at the time owned by such
Person and/or one or more other Subsidiaries of such Person
and any partnership (other than joint ventures for which the
intention under the applicable agreements, including
operating agreements, if any, is that such joint ventures be
partnerships solely for purposes of the Code) in which such
Person or a Subsidiary of such Person is a general partner;
provided that unless otherwise specified, "Subsidiary" means
a Subsidiary of FCX.
"Surat Kuasa" means the Interim Surat Kuasa or the
Final Surat Kuasa, as then applicable.
"TCB" means Texas Commerce Bank National
Association, a national banking association.
"Third Party" has the meaning assigned to such
term in Section 5.2(l).
"Total Commitment" means the sum of all the then
effective Commitments.
"Transfer Effective Date" has the meaning assigned
to such term in each Commitment Transfer Supplement.
"Transferee" means any Participant or Purchasing
Bank, as such terms are defined in Section 10.3.
"Waste Water" means P.T. Agumar Rust Indonesia, a
joint venture company incorporated in Indonesia with
shareholdings by Rust International Holding Inc. and Agumar
Lingkungan Mulia Company.
"Waste Water Assets" means certain specified waste
water facilities and assets to be transferred to Waste
Water, which assets are to be released from the Lien of the
FI Security Documents as contemplated by Section 5.2(r) and
Section 8.1(j).
"Waste Water Documents" means the agreements
governing the sale and leaseback transaction between FI and
Waste Water on the terms approved by the Administrative
Agent pursuant to the Section 5.2(r), and as amended from
time to time as permitted by Section 5.2(o).
"Waste Water Obligations" mean all obligations of
FI relating to the Waste Water Transaction.
"Waste Water Transaction" means FI's sale of the
Waste Water Assets to Waste Water, the entering into of
various contracts relating to the use by FI of the Waste
Water Assets and the related financing, all substantially as
provided in the Waste Water Documents.
"Wholly Owned Restricted Subsidiary" means any
Subsidiary all of the stock of which is at the time owned by
FCX, FI and/or one or more other Wholly Owned Restricted
Subsidiaries of either of them.
"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.
SECTION 1.2. Accounting Terms. Except as other-
wise herein specifically provided, each accounting term used
herein shall have the meaning given it under United States
generally accepted accounting principles in effect from time
to time (with such changes thereto as are approved or
concurred in from time to time by FI's or FCX's independent
public accountants, as applicable) applied on a basis
consistent with those used in preparing the financial
statements referred to in Section 5.1(a) ("GAAP"); provided,
however, that each reference in Section 5.2 hereof, or in
the definition of any term used in Section 5.2 hereof, to
GAAP shall mean generally accepted accounting principles as
in effect on the Fifth Amendment Closing Date and as applied
by FI or FCX in preparing the financial statements referred
to in Section 4.1(e). In the event any change in GAAP
materially affects any provision of this Agreement, the
Banks, FCX and FI agree that they shall negotiate in good
faith in order to amend the affected provisions in such a
way as will restore the parties to their respective
positions prior to such change, and until such amendment
becomes effective FCX's and FI's compliance with such
provisions shall be determined on the basis of GAAP as in
effect immediately before such change in GAAP became
effective.
SECTION 1.3. Section, Article, Exhibit and
Schedule References, etc. Unless otherwise stated, Section,
Article, Exhibit and Schedule references made herein are to
Sections, Articles, Exhibits or Schedules, as the case may
be, of this Agreement. 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". Except as otherwise expressly
provided herein, any reference in this Agreement to any Loan
Document shall mean such document as amended, restated,
supplemented or otherwise modified from time to time.
ARTICLE II
Borrowing Base Determinations
SECTION 2.1. Annual Determination of Borrowing
Base. As of the Fifth Amendment Closing Date, and until the
next redetermination of the Borrowing Base, the Borrowing
Base shall be $2,000,000,000. FI shall, on or prior to
April 1 in each year commencing with 1996, furnish to each
Bank a Borrowing Base Certificate dated as of April 1 of
such year. Such Borrowing Base Certificate shall have
attached thereto (A) a report on the operations, results and
outlook for the FI Project prepared by FI and satisfactory
to the Administrative Agent and (B) a schedule setting forth
the projected ownership interest of FI and FCX in each of
the Restricted Subsidiaries and FCX's projected ownership
interest in FI and the projected cash flow associated with
the FI Project and the assets of each of the Restricted
Subsidiaries of FI (an update of such schedule shall also be
required to be delivered to each Bank on or prior to each
Borrowing Base redetermination). On or prior to the May 1
following the receipt by each Bank of such annual Borrowing
Base Certificate, the Administrative Agent shall determine,
based upon the information (including information as to
projected cash flows) contained in such Borrowing Base
Certificate and the reports and schedules attached thereto
and on the Administrative Agent's Policies, a borrowing base
calculation for FI (the "Borrowing Base") based on the
projected future cash flow associated with the assets of FI.
The recommended Borrowing Base as determined by the
Administrative Agent shall be promptly communicated to the
Banks together with the list of the Nonrestricted
Subsidiaries (if any) included in such calculation. The
Banks shall promptly consider and approve or disapprove the
recommended Borrowing Base in writing and upon approval of
such recommendations by the Required Banks by written notice
to the Administrative Agent, such approved amount shall
constitute the then effective Borrowing Base. In the event
that the Administrative Agent's recommended Borrowing Base
is not approved by the Required Banks, the Administrative
Agent shall work with the Banks to agree upon a revised
Borrowing Base acceptable to Banks sufficient to constitute
the Required Banks. Such determination of the Borrowing
Base by the Administrative Agent and such approval or
nonapproval by the Required Banks of the effective Borrowing
Base shall be based on their respective Policies. Each such
determination (and each redetermination as provided for
below) of the Borrowing Base shall remain in effect until
the next succeeding calculation and approval of the
Borrowing Base in the manner provided in this Article II.
SECTION 2.2. Redetermination of Borrowing Base.
It is hereby acknowledged and agreed by FI if at any time
(I) FI does not furnish a Borrowing Base Certificate on the
required date and as required by Section 2.1, (II) as
provided in Section 2.3, after giving effect to a proposed
Equity Payment, the Available Borrowing Base shall be below
$125,000,000, (III) FCX, FI or any Restricted Subsidiary
shall be required to make any mandatory prepayment,
acquisition, repurchase or defeasance of the B.V. Notes or
(IV) the Required Banks provide written notice to the
Administrative Agent prior to September 1 of any year that,
in their reasonable opinion, circumstances have arisen since
the most recent calculation of the Borrowing Base that would
cause a material decrease in the Borrowing Base if it were
to be recalculated on the date of such notice, then in any
such case the Required Banks shall have the right to
redetermine the Borrowing Base to be effective for the
remainder of the period originally to have been covered by
the Borrowing Base then in effect, at whatever amount they
deem appropriate in their best judgment, based on all
information reasonably available to them at such time. Not
more than twice in any calendar year FI and FCX may request
by written notice to the Administrative Agent a
redetermination of the Borrowing Base in accordance with the
procedures provided in Section 2.1.
SECTION 2.3. Redetermination Based on Equity
Payments. If FI or FCX shall determine to make an Equity
Payment (other than (x) FCX's purchase of FI stock and
(y) scheduled mandatory redemption payments or dividends on
preferred stock either (a) taken into account in the most
recent Borrowing Base Certificate or (b) which constitutes
Borrowing Base Debt), and if after giving effect to such
proposed Equity Payment the Available Borrowing Base would
then be less than $125,000,000, then (i) FI or FCX, as
applicable, shall provide written notice to the
Administrative Agent 15 days (or earlier if practicable)
prior to the date of the proposed Equity Payment, together
with a calculation of the Available Borrowing Base after
giving effect to such proposed Equity Payment, and (ii) the
Required Banks may redetermine the Borrowing Base taking
into account such proposed Equity Payment; provided,
however, that nothing shall preclude FI or FCX, as
applicable, from making such Equity Payment if otherwise
permitted by Section 5.2(q).
SECTION 2.4. Grace Period for Compliance with
Section 2.1 upon Borrowing Base Redeterminations. If FI is
out of compliance with Section 3.1 or FI or FCX is out of
compliance with Section 5.2(b) either (x) subsequent to an
Equity Payment as a result of a redetermination of the
Borrowing Base pursuant to clause (II) of Section 2.2 by the
Required Banks (as distinct from any other cause, including
additional incurrences of Debt by FI and FCX or otherwise)
or (y) as a result of a redetermination of the Borrowing
Base pursuant to Section 2.1 or clause (IV) of Section 2.2,
then so long as no other Default or Event of Default shall
have occurred and be continuing, FI and FCX shall have
90 days from the date of such redetermination (90 days from
the later of the date of such redetermination and the date
of such Equity Payment, in the case of a redetermination
pursuant to clause (II) of Section 2.2) in which to come
into compliance with Section 3.1 and 5.2(b), and during such
90-day period may continue or convert (without any increase
in principal amount) existing Loans pursuant to
Section 3.10, but not for periods extending beyond such
90-day period until FCX or FI is in compliance, and until
FCX or FI comes in compliance with Sections 3.1 and 5.2(b),
FCX and FI and the Restricted Subsidiaries shall not incur
any additional Debt. No such 90-day grace period shall be
applicable to any redetermination of the Borrowing Base
pursuant to clause (I) of Section 2.2 or to any reduction of
the Borrowing Base pursuant to Section 2.5.
SECTION 2.5. Reduction of Borrowing Base from
Sales of Assets. Upon receipt by FI or FCX or a Restricted
Subsidiary of the Net Proceeds from any Net Proceeds
Transaction, the Borrowing Base shall be immediately and
automatically reduced for the period remaining until the
next succeeding redetermination of the Borrowing Base
pursuant to Section 2.1 or 2.2 by the amounts indicated
below on the basis of the then cumulative Net Proceeds
received from all Net Proceeds Transactions since the last
redetermination of the Borrowing Base as follows:
(i) until such cumulative Net Proceeds exceed
$175,000,000, by 50% of such Net Proceeds;
(ii) when such cumulative Net Proceeds exceed
$175,000,000 but not $350,000,000, by 75% of such Net
Proceeds in excess of $175,000,000; and
(iii) after such cumulative Net Proceeds exceed
$350,000,000, by 100% of such Net Proceeds in excess of
$350,000,000.
SECTION 2.6. Nonreviewability of Borrowing Base
Redetermination. It is hereby acknowledged and agreed by FI
that each such determination and redetermination of the
Borrowing Base by the Administrative Agent and/or Required
Banks shall be made in their sole and absolute discretion
and shall be final, binding on and nonreviewable by FI and
none of the Administrative Agent or any Bank shall be
required to disclose to FI its Policies.
ARTICLE III
The Loans
SECTION 3.1. Revolving Credit Facility. Upon the
terms and subject to the conditions and relying upon the
representations and warranties herein set forth, each Bank,
severally and not jointly, agrees to make Loans to FI, at
any time and from time to time until the earlier of the
Maturity Date and the termination of the Commitment of such
Bank in accordance with the terms hereof, in an aggregate
principal amount at any one time outstanding not to exceed
such Bank's Applicable Percentage of the then effective
unused Total Commitment on the Borrowing Date for such Loan.
Within the foregoing limits, FI may borrow, repay and
reborrow, prior to the Maturity Date, Loans subject to the
terms, provisions and limitations set forth herein;
provided, however, that no borrowing shall be made hereunder
(except for continuations or conversions of existing Loans
during any applicable 90-day period referred to in Sec-
tion 2.4 without increase in the principal amount of such
Loans) if (x) the aggregate principal amount of all the
Corporate Group Loans would exceed the sum of the FCX Credit
Agreement Total Commitment and the Total Commitment or (y)
Borrowing Base Debt would exceed the Borrowing Base.
SECTION 3.2. Loans. (a) The Loans made by the
Banks to FI on any one date shall be in an aggregate
principal amount which is (i) an integral multiple of
$1,000,000 and not less than $5,000,000 or (ii) equal to the
remaining available balance of the applicable Commitments.
The Loans by each Bank to FI made after the Fifth Amendment
Closing Date shall be made against an appropriate Promissory
Note, payable to the order of such Bank in the amount of its
Commitment, executed by FI, as referred to in Section 3.4.
(b) Each Loan shall be either a Reference Rate
Loan or a LIBO Rate Loan as FI may request pursuant to
Section 3.3. Subject to the provisions of Sections 3.3 and
3.10, Loans of more than one type may be outstanding at the
same time.
(c) Each Bank shall make its portion, as
determined under Section 3.14, of each Loan hereunder on the
proposed date thereof by paying the amount required to the
Administrative Agent in New York, New York in immediately
available funds not later than 2:00 p.m., New York City
time, and the Administrative Agent shall by 3:00 p.m.,
New York City time, credit the amounts so received to the
general deposit account of FI with the Administrative Agent
or, if Loans shall not be made on such date because any
condition precedent to a borrowing herein specified is not
met, return the amounts so received to the respective Banks.
Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any Loan that such Bank
will not make available to the Administrative Agent such
Bank's portion of such Loan, the Administrative Agent may
assume that such Bank has made such portion available to the
Administrative Agent on the date of such Loan in accordance
with this paragraph (c) and the Administrative Agent may, in
reliance upon such assumption, make available to FI on such
date a corresponding amount. If the Administrative Agent
shall have so made funds available, then to the extent that
such Bank shall not have made such portion available to the
Administrative Agent, such Bank and FI severally agree to
repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for
each day from the date such amount is made available to FI
until the date such amount is repaid to the Administrative
Agent at an interest rate equal to (i) in the case of FI,
the interest rate applicable at the time to the Loans
comprising such borrowing and (ii) in the case of such Bank,
a rate determined by the Administrative Agent to represent
its cost of overnight or short-term funds (which
determination shall be conclusive absent manifest error).
If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such
Bank's Loan for purposes of this Agreement.
SECTION 3.3. Notice of Loans. (a) FI shall give
the Administrative Agent irrevocable telephonic (promptly
confirmed in writing), written, telecopy or telex notice in
the form of Exhibit B with respect to each Loan (i) in the
case of a LIBO Rate Loan, not later than 10:30 a.m., New
York City time, three Business Days before a proposed
borrowing, and (ii) in the case of a Reference Rate Loan,
not later than 10:30 a.m., New York City time, on the date
of a proposed borrowing. Such notice shall be irrevocable
(except that in the case of a LIBO Rate Loan, FI may,
subject to Section 3.13, revoke such notice by giving
written or telex notice thereof to the Administrative Agent
not later than 10:30 a.m., New York City time, two Business
Days before such proposed borrowing) and shall in each case
refer to this Agreement and specify (1) whether the Loan
then being requested is to be a Reference Rate Loan or LIBO
Rate Loan, (2) the date of such Loan (which shall be a
Business Day) and amount thereof, and (3) if such Loan is to
be a LIBO Rate Loan, the Interest Period or Interest Periods
(which shall not end after the Maturity Date) with respect
thereto. If no election as to the type of Loan is specified
in any such notice by FI, such Loan shall be a Reference
Rate Loan. If no Interest Period with respect to any LIBO
Rate Loan is specified in any such notice by FI, then FI
shall be deemed to have selected an Interest Period of one
month's duration. The Administrative Agent shall promptly
advise the other Banks of any notice given by FI pursuant to
this Section 3.3(a) and of each Bank's portion of the
requested Loan.
(b) FI may continue or convert all or any part of
any Loan as or into a Loan of the same or a different type
in accordance with Section 3.10 and subject to the
limitations set forth herein. If FI shall not have
delivered a borrowing notice in accordance with this
Section 3.3 prior to the end of the Interest Period then in
effect for any Loan requesting that such Loan be converted
or continued as permitted hereby, then FI shall (unless FI
has notified the Administrative Agent, not less than three
Business Days prior to the end of such Interest Period, that
such Loan is to be repaid at the end of such Interest
Period) be deemed to have delivered a borrowing notice
pursuant to Section 3.3 requesting that such Loan be
converted into or continued as a Reference Rate Loan of
equivalent amount.
(c) Notwithstanding any provision to the contrary
in this Agreement, FI shall not in any notice of borrowing
under this Section 3.3 request any LIBO Rate Loan which, if
made, would result in more than 20 separate LIBO Rate Loans
of any Bank. For purposes of the foregoing, Loans having
different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate
Loans.
SECTION 3.4. Promissory Notes. (a) The Loans
made by each Bank to FI shall be evidenced by a Promissory
Note duly executed on behalf of FI, dated the Fifth
Amendment Closing Date, in substantially the form attached
hereto as Exhibit A, payable to the order of such Bank in a
principal amount equal to its Commitment. The outstanding
principal balance of each Loan, as evidenced by such
Promissory Note, shall be payable on the Maturity Date.
Each Note shall bear interest from the date of the first
borrowing hereunder on the outstanding principal balance
thereof, as provided in Section 3.5.
(b) Each Bank shall maintain in accordance with
its usual practice an account or accounts evidencing the
indebtedness to such Bank resulting from each Loan made by
such Bank from time to time, including the amounts of
principal and interest payable and paid such Bank from time
to time under this Agreement. Each Bank shall, and is
hereby authorized by FI to, endorse on the schedule attached
to the Promissory Note delivered by FI to such Bank (or on a
continuation of such schedule attached to such Promissory
Note and made a part thereof), or otherwise record in such
Bank's internal records, an appropriate notation evidencing
the date and amount of each Loan from such Bank to FI, as
well as the date and amount of each payment and prepayment
with respect thereto; provided, however, that the failure of
any Bank to make such a notation or any error in such a
notation shall not affect the obligation of FI to repay the
Loans made by such Bank in accordance with the terms of this
Agreement and such Promissory Note.
(c) The Administrative Agent shall maintain
accounts for (i) the type of each Loan made and the Interest
Period applicable thereto, (ii) the amount of any principal
or interest due and payable or to become due and payable
from FI to each Bank hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder from FI
and each Bank's share thereof.
(d) The entries made in the accounts maintained
pursuant to paragraphs (b) and (c) of this Section 3.4 shall
be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the
failure of any Bank or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner
affect the obligations of FI to repay the Loans in
accordance with their terms.
SECTION 3.5. Interest on Loans. (a) Subject to
the provisions of Section 3.8, each Reference Rate Loan
shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of
365 or 366 days, as the case may be, when determined by
reference to the Prime Rate, and over a year of 360 days at
all other times), equal to the Applicable Reference Rate.
(b) Subject to the provisions of Section 3.8,
each Loan which is a LIBO Rate Loan shall bear interest at a
rate per annum (computed on the basis of the actual number
of days elapsed over a year of 360 days) equal to the
Applicable LIBO Rate for the Interest Period in effect for
such Loan.
(c) Interest on each Loan shall be payable on
each applicable Interest Payment Date. The Applicable
Reference Rate and the Applicable LIBO Rate shall be
determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
The Administrative Agent shall promptly advise FI and each
Bank of such determination.
SECTION 3.6. Fees. (a) On the last Business Day
of each March, June, September and December, and on the
Maturity Date, FI shall pay each Bank, through the
Administrative Agent, in immediately available funds, a
commitment fee (a "Commitment Fee") from and including
June 25, 1993, through and including the Maturity Date on
(i) with respect to any quarter (or shorter period
commencing with June 25, 1993, or ending on the date
immediately preceding the Fifth Amendment Closing Date)
prior to the Fifth Amendment Closing Date, the average daily
unused amount of such Bank's Commitment (as defined in and
calculated in accordance with this Agreement as in effect
prior to the Fifth Amendment Closing Date), if any, equal to
1/4 of 1% per annum, (ii) with respect to any quarter after
November 24, 1994 until the Fifth Amendment Closing Date,
the amount set forth in and pursuant to (and not in
duplication of) Section 3.6(a) of the FCX Credit Agreement
and (iii) commencing on the Fifth Amendment Closing Date,
the rate set forth in Schedule I hereto.
(b) [Intentionally left blank.]
(c) All Commitment Fees under this Section 3.6
shall be computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be.
The Commitment Fees due to each Bank shall cease to accrue
on the earlier of the Maturity Date and the termination of
the Commitment of such Bank pursuant to Section 3.7.
(d) FI agrees to pay to the Administrative Agent,
for its own account pursuant hereto and to the FCX Credit
Agreement, on May 15th of each year, an agency fee (the
"Agency Fee") as agreed between FI and the Administrative
Agent.
SECTION 3.7. Maturity and Reduction of
Commitments. (a) Upon at least five days' prior written,
telecopied or telex notice to the Administrative Agent, FI
may without penalty at any time in whole permanently
terminate, or from time to time permanently reduce, the
Total Commitment, ratably among the Banks in accordance with
the amounts of their respective Commitments; provided,
however, that each partial reduction of the Commitment
Amount shall be in a minimum principal amount of $5,000,000
and an integral multiple of $1,000,000; provided further,
that the Total Commitment may not be reduced to an amount
which is less than the aggregate principal amount of all
Loans outstanding after such reduction.
(b) On the Maturity Date the Commitments shall
automatically terminate and any outstanding Loans shall be
due and payable in full.
SECTION 3.8. Interest on Overdue Amounts;
Alternative Rate of Interest. (a) If FI shall default in
the payment of the principal of or interest on any Loan or
any other amount becoming due hereunder or under any other
Loan Document, by acceleration or otherwise, FI shall on
demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount up to the date of
actual payment (after as well as before judgment):
(i) in the case of the payment of principal of or
interest on a LIBO Rate Loan, at a rate 2% above the rate
which would otherwise be payable under Section 3.5(b) until
the last date of the Interest Period then in effect with
respect to such Loan and thereafter as provided in
clause (ii) below; and
(ii) in the case of the payment of principal of or
interest on a Reference Rate Loan or any other amount
payable hereunder (other than principal of or interest on
any LIBO Rate Loan to the extent referred to in clause (i)
above), at a rate 2% above the Applicable Reference Rate.
(b) In the event, and on each occasion, that on
the day two Business Days prior to the commencement of any
Interest Period for a LIBO Rate Loan the Administrative
Agent shall have determined (which determination shall be
conclusive and binding upon FI absent manifest error) that
(i) Dollar deposits in the requested principal amount of
such LIBO Rate Loan are not generally available in the
London Interbank Market, (ii) the rates at which Dollar
deposits are being offered will not adequately and fairly
reflect the cost to any Bank of making or maintaining such
LIBO Rate Loan during such Interest Period or
(iii) reasonable means do not exist for ascertaining the
Applicable LIBO Rate, the Administrative Agent shall as soon
as practicable thereafter give written, telecopied or telex
notice of such determination to FI and the other Banks, and
any request by FI for the making of a LIBO Rate Loan
pursuant to Section 3.3 or 3.10 shall, until the
Administrative Agent shall have advised FI and the Banks
that the circumstances giving rise to such notice no longer
exist, be deemed to be a request for a Reference Rate Loan;
provided, however, that if the Administrative Agent makes
the determination specified in (ii) above, at the option of
FI such request shall be deemed to be a request for a
Reference Rate Loan only from such Bank referred to in (ii)
above; provided further, however, that such option shall not
be available to FI if the Administrative Agent makes the
determination specified in (ii) above with respect to three
or more Banks. Each determination of the Administrative
Agent hereunder shall be conclusive absent manifest error.
SECTION 3.9. Prepayment of Loans. (a) FI shall
have the right at any time and from time to time to prepay
any of its Loans, in whole or in part, subject to the
requirements of Section 3.13 but otherwise without premium
or penalty, upon prior written or telex notice to the
Administrative Agent by 10:30 a.m., New York City time, on
the date of such prepayment; provided, however, that each
such partial prepayment shall be in a minimum amount of
$5,000,000 and an integral multiple of $1,000,000.
(b) In the event of any termination of the
Commitments, FI shall repay or prepay all its outstanding
Loans on the date of such termination. On the date of any
partial reduction of the Commitments pursuant to
Section 3.7, FI shall pay or prepay so much of the Loans as
shall be necessary in order that the aggregate principal
amount of the Loans (after giving effect to any other
prepayment of Loans on such date) outstanding will not
exceed the Total Commitment immediately following such
reduction.
(c) If required by Section 2.4, FI shall repay
the outstanding Loans in such amount as may be necessary so
that, no later than the relevant date required by
Section 2.4 for compliance with Sections 3.1 and 5.2(b), the
aggregate Borrowing Base Debt (after giving effect to any
other prepayment of Corporate Group Loans on such date) is
less than or equal to the Borrowing Base after giving effect
to such reduction; provided, however, that if such reduction
in the Borrowing Base is a result of any sales, transfers,
distributions, or other dispositions of assets or properties
(including, without limitation, shares of any capital stock
or other equity interests of any Restricted Subsidiary)
other than in the ordinary course of business, such 90-day
grace period will not apply with respect to the required
mandatory prepayment. During any such applicable 90-day
period, continuations or conversions of Loans in accordance
with Section 3.10 are permitted; provided that the Interest
Periods for such continued or converted borrowings do not
extend beyond such 90-day period unless the condition
requiring prepayments pursuant to this Section 3.9(c) shall
no longer exist.
(d) All prepayments under this Section shall be
subject to Section 3.13. Each notice of prepayment
delivered pursuant to paragraph (a) above shall specify the
prepayment date and the principal amount of each Loan (or
portion thereof) to be prepaid, shall be irrevocable and
shall commit FI to prepay such Loan by the amount stated
therein on the date stated therein. All prepayments shall
be applied first to Reference Rate Loans and then to LIBO
Rate Loans and shall be accompanied by accrued interest on
the principal amount being prepaid to the date of
prepayment. Any amounts prepaid may be reborrowed to the
extent permitted by the terms of this Agreement.
SECTION 3.10. Continuation and Conversion of
Loans. FI shall have the right, subject to the provisions
of Section 3.8, (i) on three Business Days' prior
irrevocable notice by FI to the Administrative Agent, to
continue or convert any type of Loans as or into LIBO Rate
Loans, or (ii) with irrevocable notice by FI to the
Administrative Agent by 10:30 a.m. on the date of such
proposed continuation or conversion, to continue or convert
any type of Loans as or into Reference Rate Loans, in each
case subject to the following further conditions:
(a) each continuation or conversion shall be made
pro rata as to each type of Loan of FI to be continued or
converted among the Banks in accordance with the respective
amounts of their Commitments and the notice given to the
Administrative Agent by FI shall specify the aggregate
principal amount of Loans to be continued or converted;
(b) in the case of a continuation or conversion of
less than all Loans of FI, the Loans continued or converted
shall be in a minimum aggregate principal amount of
$5,000,000 and an integral multiple of $1,000,000;
(c) accrued interest on each Loan (or portion
thereof) being continued or converted shall be paid by FI at
the time of continuation or conversion;
(d) the Interest Period with respect to any Loan
made in respect of a continuation or conversion thereof
shall commence on the date of the continuation or
conversion;
(e) any portion of a Loan maturing or required to
be prepaid in less than one month may not be continued or
converted into a LIBO Rate Loan;
(f) a LIBO Rate Loan may be continued or converted
on the last day of the applicable Interest Period and,
subject to Section 3.13, on any other day;
(g) no Loan (or portion thereof) may be continued
or converted into a LIBO Rate Loan if, after such
continuation or conversion, an aggregate of more than 20
separate LIBO Rate Loans of any Bank would result,
determined as set forth in Section 3.3(c);
(h) no Loan shall be continued or converted if
such Loan by any Bank would be greater than the amount by
which its Commitment exceeds the amount of its other Loans
at the time outstanding or if such Loan would not comply
with the other provisions of this Agreement; and
(i) any portion of a LIBO Rate Loan which cannot
be converted into or continued as a LIBO Rate Loan by reason
of clause (e) or (g) above shall be automatically converted
at the end of the Interest Period in effect for such Loan
into a Reference Rate Loan.
The Administrative Agent shall communicate the information
contained in each irrevocable notice delivered by FI
pursuant to this Section 3.10 to the other Banks promptly
after its receipt of the same.
The Interest Period applicable to any LIBO Rate
Loan resulting from a continuation or conversion shall be
specified by FI in the irrevocable notice of continuation or
conversion delivered pursuant to this Section 3.10;
provided, however, that if no such Interest Period for a
LIBO Rate Loan shall be specified, FI shall be deemed to
have selected an Interest Period of one month's duration.
For purposes of this Section 3.10, notice received
by the Administrative Agent from FI after 10:30 a.m., New
York time, on a Business Day shall be deemed to be received
on the immediately succeeding Business Day.
SECTION 3.11. Reserve Requirements; Change in
Circumstances. (a) FI shall pay to each Bank on the last
day of each Interest Period for any LIBO Rate Loan so long
as such Bank may be required to maintain reserves against
Eurocurrency Liabilities as defined in Regulation D of the
Board (or so long as such Bank may be required to maintain
reserves against any other category of liabilities which
includes deposits by reference to which the interest rate on
any LIBO Rate Loan is determined as provided in this
Agreement or against any category of extensions of credit or
other assets of such Bank which includes any LIBO Rate Loan)
an additional amount (determined by such Bank and notified
to FI), equal to the product of the following for each
affected LIBO Rate Loan for each day during such Interest
Period:
(i) the principal amount of such affected LIBO
Rate Loan outstanding on such day; and
(ii) the remainder of (x) the product of Statutory
Reserves on such date times the Applicable LIBO Rate on such
day minus (y) the Applicable LIBO Rate on such day; and
(iii) 1/360.
Each Bank shall separately ▇▇▇▇ FI directly for all amounts
claimed pursuant to this Section 3.11(a).
(b) Notwithstanding any other provision herein,
if after the Fifth Amendment Closing Date any change in
condition or applicable law or regulation or in the
interpretation or administration thereof (whether or not
having the force of law and including, without limitation,
Regulation D of the Board) by any Governmental Authority
charged with the administration or interpretation thereof
shall occur which shall:
(i) subject any Bank (which shall for the purpose
of this Section include any assignee or lending office of
any Bank) to any tax of any kind whatsoever with respect to
its LIBO Rate Loans or other fees or amounts payable
hereunder or change the basis of taxation of any of the
foregoing (other than taxes (including Non-Excluded Taxes)
described in Section 3.17 and other than any franchise tax
or tax or other similar governmental charges, fees or
assessments based on the overall net income of such Bank by
the U.S. Federal government or by any jurisdiction in which
such Bank maintains an office, unless the presence of such
office is solely attributable to the enforcement of any
rights hereunder or under any security document with respect
to an Event of Default);
(ii) 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 Bank;
(iii) impose on any such Bank or the London
Interbank Market any other condition affecting this
Agreement or LIBO Rate Loans made by such Bank; or
(iv) impose upon any Bank any other condition with
respect to any amount paid or to be paid by any Bank with
respect to its LIBO Rate Loans or this Agreement;
and the result of any of the foregoing shall be to increase
the cost to any Bank of making or maintaining its LIBO Rate
Loans or Commitment hereunder, or to reduce the amount of
any sum (whether of principal, interest or otherwise)
received or receivable by such Bank or to require such Bank
to make any payment, in respect of any such Loan, in each
case by or in an amount which such Bank in its sole judgment
shall deem material, then FI to which such Loan was made
shall pay to such Bank on demand such an amount or amounts
as will compensate the Bank for such additional cost,
reduction or payment.
(c) If any Bank shall have determined that the
applicability of any law, rule, regulation, agreement or
guideline adopted after the Fifth Amendment Closing Date
regarding capital adequacy, or any change after the Fifth
Amendment Closing Date in any such law, rule, regulation,
agreement or guideline (whether such law, rule, regulation,
agreement or guideline has been adopted) or in the
interpretation or administration of any of the foregoing by
any Governmental Authority charged with the interpretation
or administration thereof, or compliance by any Bank (or any
lending office of such Bank) or any Bank's holding company
with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such
Governmental Authority made or issued after the Fifth
Amendment Closing Date, has or would have the effect of
reducing the rate of return on such Bank's capital or on the
capital of such Bank's holding company, if any, as a
consequence of this Agreement or the Loans made pursuant
hereto to a level below that which such Bank or such Bank's
holding company could have achieved but for such
applicability, adoption, change or compliance (taking into
consideration such Bank's policies and the policies of such
Bank's holding company with respect to capital adequacy) by
an amount deemed by such Bank to be material, then from time
to time FI shall pay to such Bank such additional amount or
amounts as will compensate such Bank or such Bank's holding
company for any such reduction suffered.
(d) If and on each occasion that a Bank makes a
demand for compensation pursuant to paragraph (a), (b) or
(c) above, or under Section 3.17 (it being understood that a
Bank may be reimbursed for any specific amount under only
one such paragraph or Section) FI may, upon at least three
Business Days' prior irrevocable written or telex notice to
each of such Bank and the Administrative Agent, in whole
permanently replace the Commitment of such Bank; provided
that such notice must be given not later than the 90th day
following the date of a demand for compensation made by such
Bank; and provided that FI shall replace such Commitment
with the Commitment of a commercial bank satisfactory to the
Administrative Agent. Such notice from FI shall specify an
effective date for the termination of such Bank's Commitment
which date shall not be later than the 180th day after the
date such notice is given. On the effective date of any
termination of such Bank's Commitment pursuant to this
clause (d), FI shall pay to the Administrative Agent for the
account of such Bank (A) any Commitment Fees on the amount
of such Bank's Commitment so terminated accrued to the date
of such termination, (B) the principal amount of any
outstanding Loans held by such Bank plus accrued interest on
such principal amount to the date of such termination and
(C) the amount or amounts requested by such Bank pursuant to
clause (a), (b) or (c) above or Section 3.17, as applicable.
FI will remain liable to such terminated Bank for any loss
or expense that such Bank may sustain or incur as a
consequence of such Bank's making any LIBO Rate Loan or any
part thereof or the accrual of any interest on any such Loan
in accordance with the provisions of this Section 3.11(d) as
set forth in Section 3.13. Upon the effective date of
termination of any Bank's Commitment pursuant to this
Section 3.11(d) such Bank shall cease to be a "Bank"
hereunder; provided that no such termination of any such
Bank's Commitment shall affect (i) any liability or
obligation of FI or any other Bank to such terminated Bank
which accrued on or prior to the date of such termination or
(ii) such terminated Bank's rights hereunder in respect of
any such liability or obligation.
(e) A certificate of a Bank (or Transferee)
setting forth such amount or amounts as shall be necessary
to compensate such Bank (or Transferee) as specified in
paragraph (a), (b) or (c) (and, in the case of (c), such
Bank's holding company) above or Section 3.17, as the case
may be, shall be delivered as soon as practicable to FI, and
in any event within 90 days of the change giving rise to
such amount or amounts, and shall be conclusive absent
manifest error. FI shall pay each Bank the amount shown as
due on any such certificate within 15 days after its receipt
of the same. In preparing such a certificate, each Bank may
employ such assumptions and allocations of costs and
expenses as it shall in good ▇▇▇▇▇ ▇▇▇▇ reasonable. The
failure of any Bank (or Transferee) to give the required 90-
day notice shall excuse FI from its obligations to pay
additional amounts pursuant to such Sections incurred for
the period that is 90 days or more prior to the date such
notice was required to be given.
(f) Failure on the part of any Bank to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital
within the 90 days required pursuant to Section 3.11(e)
shall not constitute a waiver of such Bank's rights to
demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on
capital for any period after the date that is 90 days prior
to the date of the delivery of demand for compensation. The
protection of this Section 3.11 shall be available to each
Bank regardless of any possible contention of invalidity or
inapplicability of the law, regulation or condition which
shall have occurred or been imposed. FI shall not be
required to make any additional payment to any Bank pursuant
to Section 3.11(a) or (b) in respect of any such cost,
reduction or payment that could be avoided by such Bank in
the exercise of reasonable diligence, including a change in
the lending office of such Bank if possible without material
cost to such Bank. Each Bank agrees that it will promptly
notify FI and the Administrative Agent of any event of which
the responsible account officer shall have knowledge which
would entitle such Bank to any additional payment pursuant
to this Section 3.11. FI agrees to furnish promptly to the
Administrative Agent official receipts evidencing any
payment of any tax.
SECTION 3.12. Change in Legality. (a) Notwith-
standing anything to the contrary herein contained, if after
the Fifth Amendment Closing Date any change in any law or
regulation or in the interpretation thereof by any
Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any Bank
to make or maintain any LIBO Rate Loan or to give effect to
its obligations as contemplated hereby with respect to any
LIBO Rate Loan, then, by written notice to FI and to the
Administrative Agent, such Bank may:
(i) declare that LIBO Rate Loans will not
thereafter (for the duration of such unlawfulness or
impracticality) be made by such Bank hereunder, whereupon FI
shall be prohibited from requesting LIBO Rate Loans from
such Bank hereunder unless such declaration is subsequently
withdrawn; and
(ii) require that all outstanding LIBO Rate Loans
made by it be converted to Reference Rate Loans, in which
event (A) all such LIBO Rate Loans shall be automatically
converted to Reference Rate Loans as of the end of the
applicable Interest Period, unless an earlier conversion
date is legally required, (B) all payments and prepayments
of principal which would otherwise have been applied to
repay the converted LIBO Rate Loans shall instead be applied
to repay the Reference Rate Loans resulting from the
conversion of such LIBO Rate Loans and (C) the Reference
Rate Loans resulting from the conversion of such LIBO Rate
Loans shall be prepayable only at the times the converted
LIBO Rate Loans would have been prepayable, notwithstanding
the provisions of Section 3.9.
(b) Before giving any notice to FI and the
Administrative Agent pursuant to this Section 3.12, such
Bank shall designate a different LIBOR Office if such
designation will avoid the need for giving such notice and
will not in the judgment of such Bank, be otherwise
disadvantageous to such Bank. For purposes of
Section 3.12(a), a notice to FI by any Bank shall be
effective on the date of receipt by FI.
SECTION 3.13. Indemnity. FI shall indemnify each
Bank against any funding, redeployment or similar loss or
expense which such Bank may sustain or incur as a
consequence of (a) any event, other than a default by such
Bank in the performance of its obligations hereunder, which
results in (i) such Bank receiving or being deemed to
receive any amount on account of the principal of any LIBO
Rate Loan prior to the end of the Interest Period in effect
therefor (any of the events referred to in this clause (i)
being called a "Breakage Event") or (ii) any Loan to be made
by such Bank not being made after notice of such Loan shall
have been given by FI hereunder or (b) any default in the
making of any payment or prepayment of any amount required
to be made hereunder. In the case of any Breakage Event,
such loss shall include an amount equal to the excess, as
reasonably determined by such Bank, of (i) its cost of
obtaining funds for the Loan which is the subject of such
Breakage Event for the period from the date of such Breakage
Event to the last day of the Interest Period in effect (or
which would have been in effect) for such Loan over (ii) the
amount of interest (as reasonably determined by such Bank)
that would be realized by such Bank in reemploying the funds
so paid, prepaid or converted or not borrowed, continued or
converted by making a LIBO Rate Loan in such principal
amount and with a maturity comparable to such period. A
certificate of any Bank setting forth any amount or amounts
which such Bank is entitled to receive pursuant to this
Section shall be delivered to FI and shall be conclusive
absent manifest error.
SECTION 3.14. Pro Rata Treatment. Except as
permitted under any of Sections 3.8(b), 3.11, 3.12, 3.13,
3.17 or 3.18, each borrowing under each type of Loan, each
payment or prepayment of principal of the Loans, each
payment of interest on the Loans, each other reduction of
the principal or interest outstanding under the Loans,
however achieved, including by setoff by any Person, each
payment of the Commitment Fees, each reduction of the
Commitments and each conversion or continuation of Loans
shall be allocated pro rata among the Banks in the
proportions that their respective Commitments bear to the
Total Commitment (or, if such Commitments shall have expired
or been terminated, in accordance with the respective
principal amounts of their outstanding Loans). Each Bank
agrees that in computing such Bank's portion of any
borrowing to be made hereunder, the Administrative Agent
may, in its discretion, round each Bank's percentage of such
borrowing to the next higher or lower whole Dollar amount.
SECTION 3.15. Sharing of Setoffs. Each Bank
agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim against FI or pursuant
to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising
from, or in lieu of, such secured claim, received by such
Bank under any applicable bankruptcy, insolvency or other
similar law or otherwise, or by any other means obtain
payment (voluntary or involuntary) in respect of any Loan of
FI held by it as a result of which the unpaid principal
portion of the Loans of FI held by it shall be
proportionately less than the unpaid principal portion of
the Loans of FI held by any other Bank (other than as
permitted under any of Section 3.8(b), 3.11, 3.12, 3.13,
3.17 or 3.18), it shall be deemed to have simultaneously
purchased from such other Bank at face value, and shall
promptly pay to such other Bank the purchase price for, a
participation in the Loans of FI held by such other Bank, so
that the aggregate unpaid principal amount of the Loans of
FI and participation in Loans of FI held by each Bank shall
be in the same proportion to the aggregate unpaid principal
amount of all Loans of FI then outstanding as the principal
amount of the Loans of FI held by it prior to such exercise
of banker's lien, setoff or counterclaim was to the
principal amount of all Loans of FI outstanding prior to
such exercise of banker's lien, setoff or counterclaim or
other event; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this
Section 3.15 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustment
restored without interest. To the fullest extent permitted
by applicable law, FI expressly consents to the foregoing
arrangements and agrees that any Bank holding a
participation in a Loan of FI deemed to have been so
purchased may exercise any and all rights of banker's lien,
setoff or counterclaim with respect to any and all moneys
owing by FI to such Bank as fully as if such Bank had made a
Loan directly to FI in the amount of such participation.
SECTION 3.16. Payments. (a) Except as otherwise
provided in this Agreement, all payments and prepayments to
be made by FI to the Banks hereunder, whether on account of
Commitment Fees, payment of principal or interest on the
Promissory Notes or other amounts at any time owing
hereunder or under any other Loan Document, shall be made to
the Administrative Agent at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, for the account of the several Banks in
immediately available funds. All such payments shall be
made to the Administrative Agent as aforesaid not later than
10:30 a.m., New York City time, on the date due; and funds
received after that hour shall be deemed to have been
received by the Administrative Agent on the following
Business Day.
(b) As promptly as possible, but no later than
2:00 p.m., New York City time, on the date of each
borrowing, each Bank participating in the Loans made on such
date shall pay to the Administrative Agent such Bank's
Applicable Percentage of such Loan plus, if such payment is
received by the Administrative Agent after 2:00 p.m., New
York City time, on the date of such borrowing, interest at a
rate per annum equal to the rate in effect on such day,
quoted by the Administrative Agent at its office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, for the overnight "sale" to such
Bank of Federal funds. At the time of, and by virtue of,
such payment, such Bank shall be deemed to have made its
Loan in the amount of such payment. The Administrative
Agent agrees to pay any moneys, including such interest, so
paid to it by the lending Banks promptly, but no later than
3:00 p.m., New York City time, on the date of such
borrowing, to FI in immediately available funds.
(c) If any payment of principal, interest,
Commitment Fee or any other amount payable to the Banks
hereunder or under any Promissory Note shall fall due on a
day that is not a Business Day, then such due date shall be
extended to the next succeeding Business Day (except in the
case of payments of principal of or interest on LIBO Rate
Loans, in which case such payment shall be made on the next
preceding Business Day if the next succeeding Business Day
would fall in the next calendar month), and interest shall
be payable on principal in respect of such extension.
(d) Unless the Administrative Agent shall have
been notified by FI prior to the date on which any payment
or prepayment is due hereunder (which notice shall be
effective upon receipt) that FI does not intend to make such
payment or prepayment, the Administrative Agent may assume
that FI has made such payment or prepayment when due and the
Administrative Agent may in reliance upon such assumption
(but shall not be required to) make available to each Bank
on such date an amount equal to the portion of such assumed
payment or prepayment such Bank is entitled to hereunder,
and, if FI has not in fact made such payment or prepayment
to the Administrative Agent, such Bank shall, on demand,
repay to the Administrative Agent the amount made available
to such Bank, together with interest thereon in respect of
each day during the period commencing on the date such
amount was made available to such Bank and ending on (but
excluding) the date such Bank repays such amount to the
Administrative Agent, at a rate per annum equal to the rate,
determined by the Administrative Agent to represent its cost
of overnight or short-term funds (which determination shall
be conclusive absent manifest error).
(e) All payments of the principal of or interest
on the Loans or any other amounts to be paid to any Bank or
the Administrative Agent under this Agreement or any of the
other Loan Documents shall be made in Dollars, without
reduction by reason of any currency exchange expense.
SECTION 3.17. U.S. Taxes. (a) Any and all
payments by FI hereunder shall be made, in accordance with
Section 3.16, free and clear of and without deduction for
any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities
with respect thereto imposed by the United States or any
political subdivision thereof, excluding taxes imposed on
the net income of an Agent or any Bank (or Transferee) and
franchise taxes of an Agent or any Bank (or Transferee), as
applicable, as a result of a connection between the
jurisdiction imposing such taxes and such Agent or such Bank
(or Transferee), as applicable, other than a connection
arising solely from such Agent or such Bank (or Transferee),
as applicable, having executed, delivered, performed its
obligations or received a payment under, or enforced, this
Agreement (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being
hereinafter referred to as "Non-Excluded Taxes"). If FI
shall be required by law to deduct any Non-Excluded Taxes
from or in respect of any sum payable hereunder to the Banks
(or any Transferee) or an Agent, (i) the sum payable shall
be increased by the amount necessary so that after making
all required deductions (including deductions applicable to
additional sums payable under this Section 3.17) such Bank
(or Transferee) or such Agent (as the case may be) shall
receive an amount equal to the sum it would have received
had no such deductions been made, (ii) FI shall make such
deductions and (iii) FI shall pay the full amount deducted
to the relevant taxing authority or other Governmental
Authority in accordance with applicable law; provided,
however, that no Transferee of any Bank shall be entitled to
receive any greater payment under this Section 3.17 than
such Bank would have been entitled to receive with respect
to the rights assigned, participated or otherwise
transferred unless such assignment, participation or
transfer shall have been made at a time when the
circumstances giving rise to such greater payment did not
exist.
(b) In addition, FI agrees to bear and to pay to
the relevant Governmental Authority in accordance with
applicable law any current or future stamp or documentary
taxes or any other similar excise taxes, charges or similar
levies that arise from any payment made hereunder or from
the execution, delivery, registration or enforcement of, or
otherwise with respect to, this Agreement or any other Loan
Document and any property taxes that arise from the
enforcement of this Agreement or any other Loan Document
("Other Taxes").
(c) FI will indemnify each Bank (or Transferee)
and each Agent for the full amount of Non-Excluded Taxes and
Other Taxes (including Non-Excluded Taxes or Other Taxes
imposed on amounts payable under this Section 3.17) paid by
such Bank (or Transferee) or such Agent, as the case may be,
and any liability (including penalties, interest and
expenses (including reasonable attorney's fees and
expenses)) arising therefrom or with respect thereto. A
certificate as to the amount of such payment or liability
prepared by a Bank or Agent, or the Administrative Agent on
behalf of such Bank or Agent, absent manifest error, shall
be final, conclusive and binding for all purposes. Such
indemnification shall be made within 30 days after the date
the Bank (or Transferee) or the Agent, as the case may be,
makes written demand therefor.
(d) Within 30 days after the date of any payment
of Non-Excluded Taxes or Other Taxes by FI to the relevant
Governmental Authority, FI will furnish to the
Administrative Agent, at its address referred to on the
signature page, the original or a certified copy of a
receipt issued by such Governmental Authority evidencing
payment thereof.
(e) At the time it becomes a party to this
Agreement or a Transferee, each Bank (or Transferee) that is
organized under the laws of a jurisdiction outside the
United States shall (in the case of a Transferee, subject to
the immediately succeeding sentence) deliver to FI either a
valid and currently effective Internal Revenue Service
Form 1001 or Form 4224 or, in the case of a Bank (or
Transferee) claiming exemption from U.S. Federal withholding
tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", a Form W-8, or any
subsequent version thereof or successors thereto, (and if
such Bank (or Transferee) delivers a Form W-8, a certificate
representing that such Bank (or Transferee) is not a bank
for purposes of Section 881(c) of the Code, is not a
10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of FI and is not a
controlled foreign corporation related to FI (within the
meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Bank (or Transferee)
establishing that such payment is (i) not subject to United
States Federal withholding tax under the Code because such
payment is effectively connected with the conduct by such
Bank (or Transferee) of a trade or business in the United
States or (ii) totally exempt from (or in case of a
Transferee, entitled to a reduced rate of) United States
Federal withholding tax. Notwithstanding any other
provision of this Section 3.17(e), no Transferee shall be
required to deliver any form pursuant to this
Section 3.17(e) that such Transferee is not legally able to
deliver. In addition, each Bank (or Transferee) shall
deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered, but only, in
such case, to the extent such Bank (or Transferee) is
legally able to do so.
(f) Notwithstanding anything to the contrary
contained in this Section 3.17, FI shall not be required to
pay any additional amounts to any Bank (or Transferee) in
respect of United States Federal withholding tax pursuant to
paragraph (a) above if the obligation to pay such additional
amounts would not have arisen but for a failure by such Bank
(or Transferee) to comply with the provisions of
paragraph (e) above.
(g) Any Bank (or Transferee) claiming any
additional amounts payable pursuant to this Section 3.17
shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document
requested by FI or to change the jurisdiction of its
applicable lending office if the making of such a filing or
change would avoid the need for or reduce the amount of any
such additional amounts which may thereafter accrue and
would not, in the sole determination of such Bank, be
otherwise disadvantageous to such Bank (or Transferee).
(h) Without prejudice to the survival of any
other agreement contained herein, the agreements and
obligations contained in this Section 3.17 shall survive the
payment in full of the principal of and interest on all
Loans made hereunder.
(i) Nothing contained in this Section 3.17 shall
require any Bank (or Transferee) or the Administrative Agent
to make available any of its income tax returns (or any
other information that it deems to be confidential or
proprietary).
SECTION 3.18. Indonesian Taxes. (a) FI shall
pay when due all Indonesian Taxes.
(b) FI shall indemnify the Administrative Agent,
the FI Trustee and each Bank (or Transferee) against, and
shall reimburse the Administrative Agent, the FI Trustee and
each Bank (or Transferee) upon demand for, any Indonesian
Taxes paid by the Administrative Agent, the FI Trustee or
such Bank (or Transferee), and any loss, liability, claim or
expense (including interest, penalties, fines, surcharges
and legal fees) which the Administrative Agent, the FI
Trustee or such Bank (or Transferee) may incur at any time
arising out of or in connection with any failure of FI to
make any payments of Indonesian Taxes; provided, however,
that no Transferee of any Bank shall be entitled to receive
any greater payment under this Section 3.18 than such Bank
would have been entitled to receive with respect to the
rights assigned, participated or otherwise transferred
unless such assignment, participation or transfer shall have
been made at a time when the circumstances giving rise to
such greater payment did not exist. A certificate as to the
amount of such payment or liability prepared by a Bank (or
Transferee), or the Administrative Agent on its behalf,
absent manifest error, shall be final, conclusive and
binding for all purposes. Such indemnification shall be
made within 30 days after the date the Bank (or Transferee)
or the Administrative Agent, as the case may be, makes
written demand therefor.
(c) Except as otherwise expressly provided in
paragraph (f) below, all payments on account of the
principal of or interest on the Loans made to FI, the
Promissory Notes of FI and all other amounts payable by FI
to or for the account of any Bank (or Transferee) or the
Administrative Agent hereunder (including amounts payable
under Section 3.18(a) or 3.18(b)) or to or for the FI
Trustee under the FI Security Documents and to any of them
under any other Loan Document shall be made in Dollars free
and clear of and without reduction by reason of any
Indonesian Taxes all of which shall be for the account of
and paid in full when due by FI. In the event that FI is
required by any applicable law, decree or regulation to
deduct or withhold Indonesian Taxes from any amounts payable
on, under or in respect of this Agreement or any other Loan
Document, FI or FCX, as the case may be, shall make the
required deduction or withholding, promptly pay the amount
of such Indonesian Taxes to the appropriate taxing
authorities and pay to the Administrative Agent such
additional amounts as may be required, after the deduction
or withholding of Indonesian Taxes (including deductions
applicable to additional sums payable under this
Section 3.18), to enable each Bank (or Transferee), the FI
Trustee or the Administrative Agent to receive from FI on
the due date thereof, an amount equal to the full amount
stated to be payable to such Bank (or Transferee), the FI
Trustee or the Administrative Agent under this Agreement or
any other applicable Loan Document.
(d) Without in any way affecting FI's obligations
under the other provisions of this Section 3.18, FI shall
furnish to the Administrative Agent the originals or
certified copies of all tax receipts issued by the relevant
taxing authority in respect of each payment, deduction or
withholding of Indonesian Taxes required to be made by
applicable laws or regulations, within 45 days after the
date on which such payment is made, and FI shall, at the
request of any Bank (or Transferee), the FI Trustee or the
Administrative Agent, promptly furnish to such Bank (or
Transferee), the FI Trustee or the Administrative Agent any
other information, documents and receipts that such Bank (or
Transferee), the FI Trustee or the Administrative Agent may
require to establish to its satisfaction that full and
timely payment has been made of all Indonesian Taxes
required to be paid hereunder.
(e) FI will notify the Banks (through the
Administrative Agent) promptly upon becoming aware of the
application or imposition, or scheduled future application
or imposition, of Indonesian Taxes; and each Bank (if not
theretofore notified by FI) will notify FI of any such
application or imposition which becomes known to its
officers then supervising the Loans of such Bank hereunder
as part of their normal duties, and of any change of its
lending office or establishment or closing of a branch in
Indonesia by such Bank which would give rise to the
application or imposition of Indonesian Taxes.
(f) Each Bank (or Transferee) having its
principal office and applicable lending office outside of
Indonesia (a "Non-Indonesian Lender") shall use reasonably
diligent efforts to deliver to FI appropriate forms, duly
completed, evidencing such Non-Indonesian Lender's
entitlement under the applicable treaty to a reduced rate of
withholding (which, in the case of any Non-Indonesian Lender
that is organized under the laws of the United States or any
State thereof including the District of Columbia, shall be
Internal Revenue Service Form 6166 (or any successor form
thereto)) on or prior to the 90th day following the (A) the
date hereof or (B) in the case of any such Non-Indonesian
Lender that is a Transferee, the date such Non-Indonesian
Lender becomes a Transferee. Following delivery by a Non-
Indonesian Lender to FI of the appropriate form referenced
in the preceding sentence of this Section 3.18(f), duly
completed, FI is authorized to file such form with the
appropriate Indonesian taxing authorities in order to obtain
a reduced rate of withholding with respect to payments of
interest to such Non-Indonesian Lender.
Each Non-Indonesian Lender shall use reasonably
diligent efforts to deliver to FI such certificates, forms
or other documents as may be necessary under any other
provision of applicable law (including any amendment,
modification or supplement to Form 6166 or such analogous
form referred to in the second preceding sentence) to reduce
the withholding rate with respect to payments of interest on
Loans of such Non-Indonesian Lender on or by the 90th day
following the date on which FI shall have delivered to such
Non-Indonesian Lender written notice of the existence of
such provision of applicable law together with a copy
thereof (accompanied by a verified English translation if
such provision of applicable law is not in English); pro-
vided, however, that such Non-Indonesian Lender shall not be
required to deliver any such certificate, form or other
document that would, in the reasonable judgment of such Non-
Indonesian Lender, be otherwise disadvantageous to such Non-
Indonesian Lender; and provided further that such Non-
Indonesian Lender shall have no obligation to deliver any
such certificates, forms or other documents that it is not
legally able to deliver or with respect to information
deemed by such Non-Indonesian Lender to be confidential or
proprietary.
If any Non-Indonesian Lender shall have failed to
comply with requirements of this Section 3.18(f) and the
effect of such failure is to cause the rate of withholding
with respect to payments of interest on such Non-Indonesian
Lender's Loans to be higher than that which would have been
applicable had such certificates, forms or other documents
been delivered to the applicable Indonesian taxing
authority, then any withholding tax indemnity payment to any
such Non-Indonesian Lender by FI pursuant to this
Section 3.18 shall be computed as if such certificates,
forms or other documents had been so delivered.
ARTICLE IV
Representations and Warranties
SECTION 4.1. Representations and Warranties. As
of the Fifth Amendment Closing Date and each other date upon
which such representations and warranties are required to be
made or deemed made pursuant to Section 6.1(i), (i) FCX and
FI jointly and severally represent and warrant with respect
to FI and (ii) FCX represents and warrants with respect to
FCX, in each case to each of the Banks, as follows:
(a) Organization, Powers. FI is duly organized
and validly existing under the laws of the Republic of
Indonesia and is duly domesticated under the laws of the
State of Delaware. FCX is duly organized, validly existing
and in good standing under the laws of the State of
Delaware. Each of FCX and FI (i) has the requisite power
and authority to own its property and assets and to carry on
its business as now conducted and as proposed to be
conducted, and (ii) is qualified to do business in every
jurisdiction where such qualification is required, except
where the failure so to qualify would not have a material
adverse effect on its condition, financial or otherwise.
Each of FCX and FI has the power to execute, deliver and
perform its obligations under this Agreement and the other
Loan Documents to which it is or is to be a party, and FI
has the power to borrow hereunder and to execute and deliver
any Promissory Notes to be delivered by it. Each of FCX and
FI has all requisite corporate power, and has all material
governmental licenses, authorizations, consents and
approvals necessary to own its own assets and carry on its
business as now being or as proposed to be conducted.
(b) Authorization. The execution, delivery and
performance of this Agreement (including, without
limitation, performance of the obligations set forth in
Sections 5.1(k) and 5.1(n)) and the other Loan Documents to
which FI or FCX are or are to be, a party and the borrowings
hereunder (i) have been duly authorized by all requisite
corporate and, if required, stockholder, action on the part
of FI or FCX, as the case may be, and (ii) will not
(A) violate (x) any Governmental Rule or the certificate or
articles of incorporation or other constitutive documents or
the By-laws or regulations of such Person or (y) any
provisions of any indenture, agreement or other instrument
to which such Person is a party, or by which such Person or
any of their respective properties or assets are or may be
bound, (B) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a
default under any indenture, agreement or other instrument
referred to in (ii)(A)(y) above or (C) result in the
creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any property or assets of such
Person, except as contemplated by the FCX Pledge Agreements
and the FI Security Documents.
(c) Governmental Approvals. Except for those
consents, approvals and registrations listed on Schedule IV
to the FCX Credit Agreement, each of which has been obtained
and is in full force and effect, or will be obtained and be
in full force and effect on the RTZ Closing Date (as
indicated in Part III of Schedule IV to the FCX Credit
Agreement), no registration with or consent or approval of,
or other action by, any Governmental Authority is or will be
required in connection with the execution, delivery and
performance by FI or FCX, as appropriate, of this Agreement
or any other Loan Document to which it is, or is to be, a
party or the borrowings hereunder by FI. Other than routine
authorizations, permissions or consents which are of a minor
nature and which are customarily granted in due course after
application or the denial of which would not materially
adversely affect the business, financial condition or
operations of FCX or FI, such Person has all franchises,
licenses, certificates, authorizations, approvals or
consents from all national, state and local governmental and
regulatory authorities required to carry on its business as
now conducted and as proposed to be conducted.
(d) Enforceability. This Agreement and each of
the other Loan Documents to which it is a party constitutes
a legal, valid and binding obligation of FI and FCX, as
applicable, in each case enforceable in accordance with its
respective terms (subject, as to the enforcement of remedies
against such Person, to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws
affecting creditors' rights against such Person generally in
connection with the bankruptcy, reorganization or insolvency
of such Person or a moratorium or similar event relating to
such Person).
(e) Financial Statements. FCX and FI have
heretofore furnished to each of the Banks their consolidated
balance sheets and statements of operations and changes in
retained earnings and cash flow as of and for the fiscal
years ended December 31, 1993 and 1994, all audited and
certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public
accountants, included in FCX's Annual Report on Form 10-K
for the year ended December 31, 1994 (the "1994 Form 10-K"),
and unaudited consolidated balance sheets and statements of
operations and cash flow as of and for the fiscal quarter
ended March 31, 1995 included in FCX's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1995. In
addition, FI has heretofore furnished to each of the Banks
consolidated balance sheets and statements of operations and
cash flow for FI as of and for the fiscal years ended
December 31, 1993 and 1994, all audited and certified by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and unaudited consolidated balance
sheets and statements of operations and cash flow for FI as
of and for the fiscal quarter ended March 31, 1995. All
such balance sheets and statements of operations and cash
flow present fairly the financial condition and results of
operations of FCX and its Subsidiaries or of FI and its
Subsidiaries, as applicable, as of the dates and for the
periods indicated. Such financial statements and the notes
thereto disclose all material liabilities, direct or
contingent, of FCX and its Subsidiaries or of FI and its
Subsidiaries, as applicable, as of the dates thereof which
are required to be disclosed in the footnotes to financial
statements prepared in accordance with GAAP. The financial
statements referred to in this Section 4.1(e) have been
prepared in accordance with GAAP. There has been no
material adverse change since December 31, 1994, in the
businesses, assets, operations, prospects or condition,
financial or otherwise, of (i) FCX, (ii) FI, (iii) FCX and
its Subsidiaries taken as a whole or (iv) FI and its
Subsidiaries taken as a whole.
(f) Litigation; Compliance with Laws; etc.
(i) Except as disclosed in the 1994 Form 10-K and any
subsequent reports filed as of 20 days prior to the Fifth
Amendment Closing Date with the SEC on Form 10-Q or Form 8-K
which have been delivered to the Banks, there are no
actions, suits or proceedings at law or in equity or by or
before any governmental instrumentality or other agency or
regulatory authority now pending or, to the knowledge of FCX
or FI, threatened against or affecting FCX or FI or any
Subsidiary or the businesses, assets or rights of FCX or FI
or any Subsidiary (i) which involve this Agreement or any of
the other Loan Documents or any of the transactions
contemplated hereby or thereby or the collateral for the
Loans or (ii) as to which there is a reasonable possibility
of an adverse determination and which, if adversely
determined, could, individually or in the aggregate,
materially impair the ability of FCX or FI to conduct its
business substantially as now conducted, or materially and
adversely affect the businesses, assets, operations,
prospects or condition, financial or otherwise, of FCX or
FI, or impair the validity or enforceability of, or the
ability of FCX or FI to perform its obligations under this
Agreement or any of the other Loan Documents to which it is
a party.
(ii) Neither FCX, FI nor any Subsidiary is in
violation of any law, or in default with respect to any
judgment, writ, injunction, decree, rule or regulation of
any court or governmental agency or instrumentality, where
such violation or default could result in a Material Adverse
Effect.
(g) Title, etc. FCX, FI and their Subsidiaries
have good and valid title to their respective material
properties, assets and revenues (exclusive of oil, gas and
other mineral properties on which no development or
production activities are being conducted following
discovery of commercially exploitable reserves), free and
clear of all Liens except such Liens as are permitted by
Section 5.2(d) and except for covenants, restrictions,
rights, easements and minor irregularities in title which do
not individually or in the aggregate interfere with the
occupation, use and enjoyment by FCX or FI, as the case may
be, or the respective Subsidiary of such properties and
assets in the normal course of business as presently
conducted or materially impair the value thereof for use in
such business. FI has the requisite licenses under the
Governmental Rules of Indonesia to use the real property on
which it conducts its business.
(h) Federal Reserve Regulations; Use of Proceeds.
(i) Neither FCX, FI nor any Subsidiary is engaged
principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing
or carrying Margin Stock.
(ii) No part of the proceeds of the Loans will be
used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose
which entails a violation of, or which is inconsistent with,
the provisions of the Regulations of the Board, including,
without limitation, Regulations G, U or X thereof.
(iii) FI will use the proceeds of all Loans made to
it for its ongoing general corporate purposes and for
acquisition transactions (subject to Section 4.1(h)(ii)).
(iv) FI warrants that, as of each date when this
representation is made or deemed made, not more than 25% of
the value of the assets directly or indirectly securing the
Loans and Permitted Secured ▇▇▇▇▇▇ constitutes Margin Stock.
(i) Taxes. FCX, FI and their Subsidiaries have
filed or caused to be filed all material Federal, state,
local and foreign tax (including Indonesian) returns which
are required to be filed by them, and have paid or caused to
be paid all taxes shown to be due and payable on such
returns or on any assessments received by any of them, other
than any taxes or assessments the validity of which FCX, FI
or any Subsidiary is contesting in good faith by appropriate
proceedings, and with respect to which FCX, FI or such
Subsidiary shall, to the extent required by GAAP, have set
aside on its books adequate reserves.
(j) Employee Benefit Plans. FCX, FI and each of
their ERISA Affiliates is in compliance in all material
respects with the applicable provisions of ERISA and the
Code and the regulations and published interpretations
thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other
such ERISA Events, could materially and adversely affect the
financial condition and operations of FCX, FI and the ERISA
Affiliates, taken as a whole. The present value of all
benefit liabilities under each Plan, determined on a plan
termination basis (based on those assumptions used for
financial disclosure purposes in accordance with Statement
of Financial Accounting Standards No. 87 of the Financial
Accounting Standards Board ("SFAS 87") did not, as of the
last annual valuation date applicable thereto, exceed by
more than $5,000,000 the value of the assets of such Plan,
and the present value of all benefit liabilities of all
underfunded Plans, determined on a plan termination basis
(based on those assumptions used for financial disclosure
purposes in accordance with SFAS 87) did not, as of the last
annual valuation dates applicable thereto, exceed by more
than $5,000,000 the value of the assets of all such
underfunded Plans.
(k) Investment Company Act. Neither FCX, FI nor
any Subsidiary is an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of
1940, as amended from time to time.
(l) Public Utility Holding Company Act. Neither
FCX, FI nor any Subsidiary is a "holding company", or a
"subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended from
time to time.
(m) Subsidiaries. Schedule III to the FCX Credit
Agreement constitutes a complete and correct list, as of the
Fifth Amendment Closing Date or the date of any update
thereof required by Section 5.1(a)(5), of all Restricted
Subsidiaries with at least $1,000,000 in total assets,
indicating the jurisdiction of incorporation or organization
of each corporation or partnership and the percentage of
shares or units owned on such date directly or indirectly by
FCX in each. Each entity shown as a parent company owns on
such date, free and clear of all Liens (other than the Liens
required or permitted by Section 4.1(o)), the percentage of
voting shares or partnership interests outstanding of its
Subsidiaries shown on Schedule III to the FCX Credit
Agreement and all such shares or partnership interests are
validly issued and fully paid.
(n) Environmental Matters. (1) The properties
owned or operated by FCX and FI and their Subsidiaries (the
"Properties") and all operations of FCX and FI and their
Subsidiaries are in compliance, and in the last three years
have been in compliance, with all Environmental Laws and all
necessary Environmental Permits have been obtained and are
in effect, except to the extent that such non-compliance or
failure to obtain any necessary permits, in the aggregate,
could not reasonably be expected to result in a Material
Adverse Effect;
(2) there have been no Releases or threatened
Releases at, from, under or proximate to the Properties or
otherwise in connection with the operations of FCX, FI or
their Subsidiaries, which Releases or threatened Releases,
in the aggregate, could reasonably be expected to result in
a Material Adverse Effect;
(3) neither FCX, FI nor any of their Subsidiaries
has received any notice of an Environmental Claim in
connection with the Properties or the operations of FCX, FI
or their Subsidiaries or with regard to any Person whose
liabilities for environmental matters FCX, FI or their
Subsidiaries has retained or assumed, in whole or in part,
contractually, by operation of law or otherwise, which, in
the aggregate, could reasonably be expected to result in a
Material Adverse Effect, nor do FCX, FI or their
Subsidiaries have reason to believe that any such notice
will be received or is being threatened; and
(4) Hazardous Materials have not been transported
from the Properties, nor have Hazardous Materials been
generated, treated, stored or disposed of at, on or under
any of the Properties in a manner that could give rise to
liability under any Environmental Law, nor have FCX, FI or
their Subsidiaries retained or assumed any liability,
contractually, by operation of law or otherwise, with
respect to the generation, treatment, storage or disposal of
Hazardous Materials, which transportation, generation,
treatment, storage or disposal, or retained or assumed
liabilities, in the aggregate, could reasonably be expected
to result in a Material Adverse Effect.
(o) Security Documents. The Liens created by the
FI Security Documents are in full force and effect and
constitute first priority (except for Liens expressly
permitted by Section 5.2(d)), perfected security interests
in favor of the FI Trustee for the ratable benefit of the
Banks and the FCX Lenders in the property and assets stated
to be subject to each such FI Security Document and for the
RTZ Lender in the RTZ Collateral. The FCX Pledge Agreements
are effective to create in favor of the FCX Collateral
Agent, for the ratable benefit of the Lenders (as such term
is defined in the FCX Intercreditor Agreement) and the
holders of the B.V. Notes, a legal, valid and enforceable
security interest in the stock of FI owned by FCX and
pledged thereunder, the certificates for such shares have
been delivered to the FCX Collateral Agent and the FCX
Pledge Agreements constitute a fully perfected first
priority Lien on, and security interests in, all right,
title and interest of FCX thereunder in such stock and the
proceeds thereof, in each case prior and superior inright to
any other Person.
(p) Assigned Agreements. Schedule V to the FCX
Credit Agreement (as updated from time to time as required
hereby) is a complete and correct list of each currently
effective Major Concentrate Sales Agreement (copies of which
have heretofore been furnished to the Administrative Agent).
FI is not in default in any material respect in its
obligations under any Assigned Agreement nor is any
counterparty to any such agreement in default in its
obligations in any respect that could materially and
adversely affect the ability of FI to perform its
obligations under the Loan Documents.
(q) No Material Misstatements. No information,
report (including any Borrowing Base Certificate and any
exhibit, schedule or other attachment thereto or other
document delivered in connection therewith), financial
statement, exhibit or schedule prepared or furnished by FI
or FCX to the Administrative Agent or any Bank in connection
with this Agreement or any of the other Loan Documents or
included therein or any information provided to Cravath,
Swaine & ▇▇▇▇▇ in connection with the preparation of the
environmental due diligence summary memorandum referred to
in Section 6.1(a)(xii) contained or contains any material
misstatement of fact or omitted or omits to state any
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading.
ARTICLE V
Covenants
SECTION 5.1. Affirmative Covenants of FCX and FI.
FCX and FI covenant and agree with each Bank and Agent and
the FI Trustee that from and after the Fifth Amendment
Closing Date and so long as this Agreement shall remain in
effect and until the Commitments have been terminated and
the principal of and interest on each Loan, all fees and all
other expenses or amounts payable under any Loan Document
shall have been paid in full, that, without the prior
written consent of the Required Banks:
(a) Financial Statements, etc. FCX and FI shall
furnish each Bank (or, as provided below, the Administrative
Agent):
(1) within 95 days after the end of each
fiscal year, a consolidated balance sheet of FCX or FI, as
the case may be, and its Subsidiaries as at the close of
such fiscal year and consolidated statements of operation
and changes in retained earnings and cash flow of it and its
Subsidiaries for such year, with the opinion thereon of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent public accountants
of national standing selected by it to the effect that such
consolidated financial statements fairly present the
financial condition and results of operations of FCX or FI,
as the case may be, on a consolidated basis in accordance
with GAAP consistently applied, except as disclosed in such
auditor's report;
(2) within 50 days after the end of each of
the first three quarters of each of its fiscal years, a
consolidated balance sheet of FCX or FI, as the case may be,
and its Subsidiaries as at the end of such quarter and
consolidated statements of income of it and its Subsidiaries
for such quarter and for the period from the beginning of
the fiscal year to the end of such quarter, certified by the
Treasurer or other authorized financial or accounting
officer of FCX as fairly presenting the financial condition
and results of operations of FI or FCX on a consolidated
basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments;
(3) promptly after their becoming available,
(a) copies of all financial statements, reports and proxy
statements which FCX or FI shall have sent to its public
stockholders generally and, in the case of FI, will furnish
to the Administrative Agent copies of all notices to or from
its stockholders alleging or claiming a breach or default
relating to their shareholding in FI or with respect to any
matter which could reasonably be expected to have an adverse
effect on the FI Collateral and Rights, (b) copies of all
registration statements (excluding registration statements
relating to employee benefit plans) and regular and periodic
reports, if any, which FCX or FI shall have filed with the
SEC, or any governmental agency substituted therefor, and
(c) if requested by any Bank, copies of each annual report
filed with any governmental agency pursuant to ERISA with
respect to each Plan of FCX or FI or any of the
Subsidiaries;
(4) promptly upon the occurrence of any
Default or Event of Default, the occurrence of any default
under any other Loan Document, the commencement of any
proceeding regarding FCX, FI or any of their Subsidiaries
under any Federal or state bankruptcy law, any other
development that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect, notice
thereof, describing the same in reasonable detail;
(5) on the Fifth Amendment Closing Date and
at the time of provision of the financial statements
referred to in clauses (1) and (2) above, an update of
Schedule III to the FCX Credit Agreement to correct, add or
delete any required information;
(6) in the case of FI, a copy to the
Administrative Agent of all notices alleging or claiming a
breach or default or with respect to any matter which could
reasonably be expected to have an adverse effect upon the FI
Collateral and Rights (i) by or to Indonesian Governmental
Authorities in connection with the FI Project or pursuant to
the Contract of Work or the Memorandum of Understanding and
(ii) by or to FI or its Affiliates pursuant to the Specified
Documents, and a copy of any proposed amendment to the
Contract of Work, Memorandum of Understanding or any
Specified Documents prior to execution and delivery thereof;
(7) all documents, notices and other material
required to be provided to the Administrative Agent or the
Banks by Section 5.3; and
(8) from time to time, such further
information regarding the business, affairs and financial
condition of FCX, FI or any Subsidiary as any Bank may
reasonably request.
At the time FCX or FI furnishes financial statements
pursuant to the foregoing clauses (1) and (2), FCX or FI, as
the case may be, will also furnish each Bank a certificate
by its Treasurer or other authorized Financial Officer
setting forth the calculation of: (A) its current ratio as
determined in accordance with Section 5.2(e), (B) its EBITDA
Ratio as determined in accordance with Section 5.2(f) and
(C) the compliance of FI and FCX with Section 5.2(b), and
FCX or FI, as the case may be, will also furnish a
certificate by its Treasurer or other authorized Financial
Officer certifying that no Default or Event of Default has
occurred, or if such a Default or Event of Default has
occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect
thereto.
(b) Taxes and Claims. FCX and FI shall, and
shall cause each of their Subsidiaries to, pay and discharge
all taxes, assessments and governmental charges or levies,
imposed upon it or upon its income or profits, or upon any
property belonging to it, prior to the date on which
material penalties attach thereto; provided that neither
FCX, FI nor any Subsidiary shall be required to pay any such
tax, assessment, charge or levy, the payment of which is
being contested in good faith by proper proceedings and with
respect to which FCX, FI or such Subsidiary shall have, to
the extent required by GAAP, set aside on its books adequate
reserves and such contest operates to suspend collection of
the contested obligation, tax, assessment or charge and
enforcement of a Lien.
(c) Maintenance of Existence; Conduct of
Business. FCX and FI shall each preserve and maintain its
corporate existence and all its rights, privileges and
franchises necessary or desirable in the normal conduct of
its business; provided that nothing herein shall prevent any
transaction permitted by Section 5.2(c).
(d) Compliance with Applicable Laws. FCX and FI
shall, and shall cause each of their Subsidiaries to, comply
with the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority, a
breach of which would materially and adversely affect its
consolidated financial condition or business, except where
contested in good faith and by proper proceedings and with
respect to which FCX and FI or such Subsidiary shall have,
to the extent required by GAAP, set aside on its books
adequate reserves.
(e) Litigation. FCX and FI shall promptly give
to each Bank notice in writing of all litigation and all
proceedings before any governmental or regulatory agencies
or arbitration authorities affecting FCX, FI or any
Subsidiary except those which, if adversely determined, do
not relate to the Loan Documents and which would not have a
material adverse effect on the business, assets, operations
or financial condition of FCX or FI or the ability of FCX or
FI to comply with their obligations under the Loan
Documents.
(f) ERISA. FCX and FI shall, and shall cause
each of their Subsidiaries to, comply in all material
respects with the applicable provisions of ERISA and the
Code and furnish to the Administrative Agent (i) as soon as
possible, and in any event within 30 days after any
Responsible Officer of FCX or FI or any ERISA Affiliate
knows or has reason to know that, any ERISA Event has
occurred that alone or together with any other ERISA Event
could reasonably be expected to result in liability of FCX
or FI in an aggregate amount exceeding $25,000,000 or
requires payment exceeding $10,000,000 in any year, a
statement of a Financial Officer of FCX or FI setting forth
details as to such ERISA Event and the action that FCX or FI
proposes to take with respect thereto.
(g) Compliance with Environmental Laws;
Preparation of Environmental Reports. (i) FCX and FI shall
comply, and cause their Subsidiaries and all lessees and
other Persons occupying the Properties to comply, in all
material respects with all Environmental Laws and
Environmental Permits applicable to its operations and
Properties; obtain and renew all material Environmental
Permits necessary for its operations and Properties; and
conduct any Remedial Action in accordance with Environmental
Laws; provided, however, that neither FCX, FI nor any of
their Subsidiaries shall be required to undertake any
Remedial Action to the extent that its obligation to do so
is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect
to such circumstances.
(ii) If a default caused by reason of a breach of
Section 4.1(n) or 5.1(g)(i) shall have occurred and be
continuing, at the request of the Required Banks through the
Administrative Agent, FCX and FI shall provide to Banks
within 45 days after such request, at the expense of FCX and
FI, an environmental site assessment report for the
Properties (which are the subject of such default) prepared
by an environmental consulting firm acceptable to the
Administrative Agent, indicating the presence or absence of
Hazardous Materials and the estimated cost of any compliance
or Remedial Action in connection with such Properties.
(h) Security. (i) FI at all times shall comply
with the provisions of the FI Security Documents and
maintain in full force and effect all the rights, powers and
benefits of the FI Trustee under the FI Security Documents
in accordance with their terms, including (x) the validity
and effectiveness of the powers of attorney granted by the
Surat Kuasa and the Fiduciary Power and the fiduciary
transfers effectuated by the Fiduciary Transfer and the
Fiduciary Assignment and (y) maintenance of the security
interest of the FI Trustee in the collateral required to be
subjected to the Liens created by the FI Security Documents
as a perfected first priority (second priority, with respect
to the RTZ Collateral so long as the RTZ Loan is
outstanding) security interest as provided therein, subject
only to the releases of specific assets as and to the extent
required by Section 8.1(j) and
(ii) FCX at all times shall comply with the provisions
of the FCX Pledge Agreements and maintain in full force and
effect all the rights, powers and benefits of the FCX
Collateral Agent under the FCX Pledge Agreements in
accordance with their respective terms, including
maintenance of the security interest of the FCX Collateral
Agent in the collateral required to be subject to the Liens
created by the FCX Pledge Agreements as a perfected first
priority security interest as provided therein.
(i) Insurance. FCX, FI and each Restricted
Subsidiary shall (i) keep its insurable properties
adequately insured at all times; (ii) maintain such other
insurance, to such extent and against such risks, including
fire, flood and other risks insured against by extended
coverage, as is customary with companies in the same or
similar businesses; (iii) maintain in full force and effect
public liability insurance against claims for personal
injury or death or property damage occurring upon, in, about
or in connection with the use of any properties owned,
occupied or controlled by it in such amount as it shall
reasonably deem necessary; and (iv) maintain such other
insurance as may be required by law. The proceeds of any
political risk insurance of FCX or FI shall be applied
promptly to the prepayment of the Loans to FI and the loans
to FI and FCX pursuant to the FCX Agreement (it being
understood that the allocation of such prepayments among
such Loans shall be determined solely by FCX). Prepayments
pursuant to this Section 5.1(i) shall not be subject to
Section 3.13 unless the occurrence that entitles FCX to such
insurance proceeds results in an Event of Default.
(j) Access to Premises and Records. FCX, FI and
each Subsidiary shall maintain financial records in
accordance with GAAP, and, at all reasonable times and as
often as any Bank may reasonably request, permit
representatives of any Bank to have access to its financial
records and its premises and to the records and premises of
any of its Subsidiaries and to make such excerpts from and
copies of such records as such representatives deem
necessary and to discuss its affairs, finances and accounts
with its officers and its independent certified public
accountants or other parties preparing consolidated or
consolidating statements for it or on its behalf.
(k) Concentrate Sales Agreements. FI will
(i) promptly advise the Administrative Agent and the FI
Trustee of any changes to the information set forth on
Schedule V to the FCX Credit Agreement and promptly assign
all Concentrate Sales Agreements and the proceeds from all
FI Receivables Purchase Agreements in effect from time to
time to the FI Trustee under, and in accordance with,
Article III of the FI Trust Agreement, require the
counterparties thereto to make all payments to FI thereunder
directly to the Sales Proceeds Account, and (ii) furnish to
the Administrative Agent and the FI Trustee copies of each
Major Concentrate Sales Agreement and FI Receivables
Purchase Agreement entered into after the Fifth Amendment
Closing Date, and each amendment, waiver or supplement to
any Concentrate Sales Agreement which after such amendment,
waiver or supplement would be a Major Concentrate Sales
Agreement, in each case promptly after the execution and
delivery thereof. FI may permit Concentrate Sales
Agreements to expire or terminate in accordance with their
terms.
(l) Protection of Contract Rights. FI will not
terminate, suspend, amend or grant waivers of any provisions
of any of the Assigned Agreements without the prior written
consent of the Required Banks; provided, however, that FI
may amend or waive provisions in any Concentrate Sales
Agreement so long as such amendment or waiver will not
materially adversely affect the business, financial
condition or operations of FI or any rights of the FI
Trustee or the Banks. FI will promptly furnish to the Banks
and the Administrative Agent copies of any amendments to or
waivers or supplements of the Assigned Agreements. FI shall
take all steps necessary or advisable to protect its rights
(and the rights of the FI Trustee) under the Assigned
Agreements.
(m) Source of Interest. FI (i) will conduct its
business so that interest paid on the Loans of FI to any
Bank (or Transferee) which is not a "related person" to FI
within the meaning of Section 861(c)(2)(B) of the Code as in
effect on the Fifth Amendment Closing Date will be deemed to
be income from sources without the United States within the
meaning of Sections 861(a)(1)(A) and 861(c) of the Code as
in effect on the Fifth Amendment Closing Date and (ii) will
use its best efforts (without undue cost) to conduct its
business so that interest paid on the Loans of FI to any
Bank (or Transferee) which is not a related person to FI
within the meaning of Section 861(c)(2)(B) of the Code (as
it may be amended or substituted after the Fifth Amendment
Closing Date) will be deemed to be income from sources
without the United States within the meanings of Sections
861(a)(1)(A) and 861(c) of the Code (as it may be amended or
substituted after the Fifth Amendment Closing Date).
(n) Further Assurances. FI and FCX shall, and
shall cause their Subsidiaries to, execute any and all
further documents, financing statements, agreements and
instruments, and take all further actions (including filing
Uniform Commercial Code financing statements and any
Indonesian equivalents), which may be required under
applicable law, or which the Required Banks, the
Administrative Agent, the Documentary Agent or the FI
Trustee may reasonably request, in order to effectuate the
transactions contemplated by this Agreement and the other
Loan Documents including without limitation the FCX Pledge
Agreements and the FI Security Documents, and in order to
grant, preserve, protect and perfect the validity and first
priority of the security interests created by the FI
Security Documents and the FCX Pledge Agreements. FCX and
FI agree to provide such evidence as the Agents or the FI
Trustee shall reasonably request as to the perfection and
priority status of each such security interest and Lien.
(o) Covenants Regarding FI. FCX shall cause FI
to perform the covenants relating to it set forth in
Sections 5.1 and 5.2.
SECTION 5.2. Negative Covenants of FCX and FI.
Each of FCX and FI covenants and agrees with each Bank that,
from and after the Fifth Amendment Closing Date and so long
as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and
interest on each Loan, all fees and all other expenses or
amounts payable under any Loan Document have been paid in
full, that, without the prior written consent of the
Required Banks:
(a) Conflicting Agreements. FCX and FI shall not
and shall cause their Restricted Subsidiaries not to enter
into any agreement containing any provision which would be
violated or breached by the performance of their obligations
under any Loan Document or under any instrument or document
delivered or to be delivered by them hereunder or thereunder
or in connection herewith or therewith, including any
agreement with any Person which would prohibit or restrict
(i) in the case of FI and the other Restricted Subsidiaries
the payments of dividends or other distributions or (ii) the
ability of such entities to create Liens on any of their
assets (other than as provided in Sections 7.2.5 and 7.3 of
the Participation Agreement and other than on assets which
are subject to Liens permitted pursuant to paragraphs (i)
with respect to such required margin deposits only, (ii),
(iii), (iv), (vi), (vii) and (ix) of Section 5.2(d) and
extensions and renewals and replacements thereof to the
extent permitted pursuant to Section 5.2(d)(x)).
(b) Borrowing Base Limits. Except to the extent
expressly permitted by Section 2.4 or Section 3.9(c), FCX
and FI shall not at any time permit the sum of all Borrowing
Base Debt to exceed the then effective Borrowing Base.
(c) Consolidation or Merger; Disposition of
Assets and Capital Stock. FCX and FI shall not, and shall
not permit any Restricted Subsidiary to, merge into or
consolidate with any Person, or sell, lease, transfer or
otherwise dispose of (in one transaction or a series of
transactions) (A) in the case of FCX, stock in FI
constituting at least 50.1% of the ownership of FI on a
fully diluted basis and (B) in the case of FI and its
Restricted Subsidiaries, all or any substantial part of its
assets (whether now owned or hereafter acquired) or any
capital stock of any Restricted Subsidiary, except for
(i) dispositions of accounts receivable and dispositions of
investment instruments and inventory in the ordinary course
of business; provided that the proceeds of any sale of
accounts receivable by FI or its Restricted Subsidiaries are
deposited in the Sales Proceeds Account, (ii) dispositions
of obsolete or worn-out property, or real estate not used or
useful in its business, (iii) subject to the last sentence
of Section 5.2(j) and to Section 5.2(p) and to FI itself at
all times retaining its rights to the Contract of Work and
tangible assets sufficient for FI's production activities
from which revenues from scheduled production of the 10-K
Reserves referred to in Schedule VII to the FCX Credit
Agreement are pledged to (or for the benefit of) the Banks,
dispositions of assets by FI or its Restricted Subsidiaries
to another Restricted Subsidiary of FI or to FI,
(iv) subject to Section 5.2(l), dispositions of assets by FI
or its Restricted Subsidiaries to a Third Party, (v) to the
extent permitted by Sections 5.2(j) and 5.2(q), the payment
of dividends in cash or in kind by FCX, FI or any Restricted
Subsidiary, whether now owned or hereafter acquired, (vi)
permitted sale and leaseback transactions, (vii) the
transactions comprising the Restructuring, (viii)
investments in Portfolio Investments and dispositions
thereof, and (ix) the transfer of the RTZ Interests to PT-
RTZ as permitted by Section 5.3, the FI Intercreditor
Agreement and the FI Trust Agreement, except that:
(w) FCX, FI or any Restricted Subsidiary may
merge or liquidate any corporation (other than, in the case
of a Restricted Subsidiary, FI or FCX) into itself;
(x) any Restricted Subsidiary (other than FI)
may be merged into any other corporation; provided that such
corporation, immediately following such merger, shall be
deemed a Restricted Subsidiary;
(y) FI and the Restricted Subsidiaries may
engage in sale and leaseback transactions (including sale
and leaseback transactions which initially take the form of
a purchase money transaction in that title to the equipment
passes through FI or a Restricted Subsidiary prior to being
held by the lessor in the sale and leaseback transaction)
for assets with a cumulative aggregate fair market value not
in excess of $50,000,000 and FI may, subject to Section
5.2(r), consummate the transfer of the Waste Water Assets as
required by the Waste Water Documents and the transfer of
the remaining PFT Assets and ALatieF-FI Assets as required
by the PFT Documents and the ALatieF-FI Documents,
respectively, and the transfer in respect of Contract Area
Block B referred to in Section 8.1(j) subject to the
conditions precedent thereto set forth in Section 8.1(j);
and
(z) subject to Sections 2.5 (to the extent
that such transaction is a Net Proceeds Transaction) and
5.2(j) and in addition to the other transactions expressly
permitted by the other provisions of this Section 5.2(c) and
by Section 5.2(r), FCX, FI or any Restricted Subsidiary may
sell or otherwise dispose of (including by merger or
consolidation) any assets or securities of any Subsidiary
other than stock of FI owned by FCX representing at least
50.1% of the voting stock of FI on a fully diluted basis
pledged pursuant to the FCX Pledge Agreements and other than
assets of FI and its Restricted Subsidiaries, pledged to the
FI Trustee pursuant to the FI Security Documents except to
the extent permitted by clause (y) above and by
Section 5.2(r);
provided, however, that in the case of a merger permitted by
clause (w) above, immediately thereafter and giving effect
thereto, FCX, FI or, as the case may be, a Restricted
Subsidiary would be the surviving corporation and, in the
case of a merger permitted by clause (w) or clause (x) above
or of any disposition of assets or securities permitted by
clause (y) or (z) above, no Default or Event of Default
would, immediately thereafter and giving effect thereto,
have occurred and be continuing. Each sale or other
disposition permitted by clause (z) above shall be permitted
only if FCX, FI or the respective Restricted Subsidiary
shall receive fair consideration therefor, as determined by
the Board of Directors of FCX, FI or of such Restricted
Subsidiary, as the case may be, and certified by its
Treasurer or another of its Financial Officers to the
Administrative Agent.
(d) Liens. FCX and FI shall not, nor shall they
permit any of their Restricted Subsidiaries to, create,
incur, assume, or suffer to exist any Lien upon any of its
respective properties, revenues or assets (including stock
or other securities of any Person, including any
Subsidiary), now owned or hereafter acquired, except:
(i) required margin deposits on permitted
Hedge Agreements, surety and appeal bonds and materialmen's,
suppliers', tax and other like Liens arising in the ordinary
course of FCX's, FI's or such Restricted Subsidiary's
business securing obligations which are not overdue or are
being contested in good faith by appropriate proceedings and
as to which adequate reserves have been set aside on its
books to the extent required by GAAP, Liens arising in
connection with workers' compensation, unemployment
insurance and progress payments under government contracts,
and other Liens incident to the ordinary conduct of FCX's,
FI's or such Restricted Subsidiary's business or the
ordinary operation of property or assets and not incurred in
connection with the obtaining of any Debt or Guarantee;
(ii) Liens on assets or properties not owned
as of the Fifth Amendment Closing Date by FCX, FI or any
Restricted Subsidiary securing only purchase money Debt of
FCX or such Restricted Subsidiary permitted by
Section 5.2(g)(v), which Liens are limited to the specific
property the purchase of which is financed by such Debt;
(iii) Liens, existing at the time of the
acquisition by FCX, FI or any Restricted Subsidiary of the
majority of the capital stock or all the assets of any other
corporation or existing at the time of the merger of any
such corporation into FCX, FI or a Restricted Subsidiary, on
such capital stock or assets so acquired or on the assets of
the corporation so merged into FCX, FI or such Restricted
Subsidiary; provided, however, that such acquisition or
merger (and the discharge of such Liens referred to in the
immediately succeeding proviso) shall not otherwise result
in an Event of Default or Default; and provided further that
all such Liens shall be discharged within 180 days after the
date of the respective acquisition or merger;
(iv) Liens on the Caterpillar Assets to the
extent required by the Caterpillar Documents;
(v) Liens in favor of the Collateral Agent
(for the equal and ratable benefit of the Lenders (as
defined in the FCX Intercreditor Agreement) and the holders
of the B.V. Notes as provided in the FCX Pledge Agreements,
and Liens in favor of the Banks, the FCX Lenders and the FI
Trustee under the FI Security Documents, all as contemplated
by Section 4.1(o);
(vi) Liens on FI's interests in Jaya Power
securing the financing for such respective Specified
Transactions;
(vii) Liens (which Lien in any such case is
limited to the property leased thereunder) of lessors of
property (in such capacity) leased by FCX, FI or a
Restricted Subsidiary (x) pursuant to the Capitalized Lease
Obligations arising under the Specified Transactions,
(y) pursuant to an Operating Lease and (z) to the extent
permitted by Section 5.2(g)(vii) pursuant to other sale and
leaseback transactions entered into after the Fifth
Amendment Closing Date, the resulting Capitalized Lease
Obligations.
(viii) zoning restrictions, easements,
rights-of-way, restrictions on use of real property and
other similar encumbrances incurred in the ordinary course
of business which, in the aggregate, are not substantial in
amount and do not materially detract from the value of the
property subject thereto or interfere with the ordinary
conduct of the business of FCX, FI or any of their
Subsidiaries;
(ix) as permitted by Section 5.3, the RTZ
Interests and the first priority Lien of RTZ Lender on the
RTZ Collateral; and
(x) extensions, renewals and replacements of
Liens referred to in paragraphs (i), (ii), (iv), (v), (vi),
(vii), (viii) and (ix) of this Section 5.2(d); provided that
any such extension, renewal or replacement Lien shall be
limited to the property or assets covered by the Lien
extended, renewed or replaced and that the obligations
secured by any such extension, renewal or replacement Lien
shall be in an amount not greater than the amount of the
obligations secured by the Lien extended, renewed or
replaced.
(e) Current Ratios. FCX and FI shall not fail to
maintain, as of the last day of each fiscal quarter,
consolidated current assets (excluding Nonrestricted
Subsidiaries) in an amount at least equal to the amount of
its consolidated current liabilities (excluding
Nonrestricted Subsidiaries). For purposes hereof,
consolidated current assets and consolidated current
liabilities shall be determined in accordance with GAAP,
except that (i) investments in shares of corporations (other
than shares which are, and which are held as, marketable
securities) and advances to Nonrestricted Subsidiaries and
other firms or companies in which FCX or FI has a material
investment, direct or indirect, or which have a direct or
indirect material investment in FCX or FI shall not be
included in current assets; (ii) current assets shall be
increased by the available portion of the Commitments which,
under the terms of this Agreement, will, if not sooner
terminated or drawn down by FI, remain outstanding for at
least twelve months following the time of determination; and
(iii) the current portion of long-term Debt shall not be
included in current liabilities.
(f) EBITDA Ratios. FCX and FI shall not permit
its EBITDA Ratio to be less than 2.00 to 1.00 at the end of
any fiscal quarter.
(g) Debt. Neither FCX, FI nor any Restricted
Subsidiary shall incur, create, assume or permit to exist
any Debt of any of them except:
(i) Corporate Group Loans;
(ii) the Specified Obligations, including the
Capitalized Lease Obligations with respect to the PFT
Assets, the ALatieF-FI Assets, the P&O Assets, the Airfast
Assets and the Waste Water Assets;
(iii) $120,000,000 of aggregate principal
amount of P.T. ALatieF Freeport Finance Company B.V.'s
Senior Notes due 2001 (the 'B.V. Notes'), the Guarantee by
FCX of the B.V. Notes and the PT-FI Note (as defined in the
B.V. Registration Statement).
(iv) up to $70,000,000 aggregate principal
amount of borrowings from Caterpillar by FCX, and the
Guarantee thereof by FI (together with such Debt, the
"Caterpillar Obligations"), such guarantee to be secured by
certain specified heavy equipment of FI and related spare
parts (the "Caterpillar Assets") released or required to be
released from the lien of the FI Security Documents, all
substantially on the terms set forth in the Caterpillar
Documents (the "Caterpillar Transaction");
(v) purchase money indebtedness (excluding
sale and leaseback transactions which initially take the
form of a purchase money transaction in that title to the
equipment passes through FI or a Restricted Subsidiary prior
to being held by the lessor in the sale and leaseback
transaction) of FCX, FI and any Restricted Subsidiary
secured by Liens permitted by Section 5.2(d)(ii) not in
excess of the purchase price of the related asset in each
individual case and with an outstanding aggregate principal
amount for all such purchase money debt not at any time in
excess of $50,000,000;
(vi) Capitalized Lease Obligations (including
those resulting from sale and leaseback transactions) of
FCX, FI or any Restricted Subsidiary entered into after the
Fifth Amendment Closing Date (other than with respect to the
Specified Assets) with an outstanding aggregate principal
amount not at any time in excess of $50,000,000;
(vii) Guarantees by FCX of Debt of FM
Properties and Circle C not in excess of an aggregate
principal amount of $90,000,000 pursuant to the FCX/FMPO
Guarantee, secured pursuant to the FCX Intercreditor
Agreement by the FCX Pledge Agreements, and extensions,
renewals, replacements and refundings thereof;
(viii) up to $450,000,000 principal amount of
Debt of FI plus accrued commitment fees and interest to the
RTZ Lender pursuant to the RTZ Loan Agreement;
(ix) the Guarantee by FCX pursuant to the
Implementation Agreement of FI's obligations under the
Transaction Agreements (as such term is defined in the
Implementation Agreement); and
(x) other unsecured Debt of FCX, FI and the
Restricted Subsidiaries if, after giving effect to the
incurrence thereof, no Default or Event of Default would
occur or be continuing (including under Section 5.2(b)).
(h) Preferred Stock. FCX, FI and the Restricted
Subsidiaries shall not voluntarily redeem any preferred
stock issued by any them except for common stock of the
issuer (with cash for fractional shares).
(i) Scope of FI's Business. Neither FI nor FCX
will materially alter the nature of the business and
activities in which it is engaged as of the Fifth Amendment
Closing Date.
(j) Ownership of FI. FCX shall not at any time
directly or indirectly own shares of voting stock or
interests having on a fully diluted basis less than 50.1%
ownership interest in FI, which shares are pledged to the
FCX Collateral Agent pursuant to the FCX Pledge Agreements
(FCX hereby agreeing to cause additional shares of FI to be
pledged to the FCX Collateral Agent as necessary to remain
in full compliance at all times). FCX shall own its
interests in FI, free and clear of all Liens, except for the
Liens of the FCX Pledge Agreements. FCX shall promptly
notify the Administrative Agent in the event there occurs
any significant decrease in its percentage ownership of FI
below that indicated in the most recent Borrowing Base
Certificate or any decrease in such percentage interest
below 50.1%. The ownership by FCX of common stock of FI
shall be direct and not through any intervening entity,
except for the percentage of common stock held by FCX on the
Fifth Amendment Closing Date through P.T. Indocopper
Investama Corporation.
(k) Fiscal Year. FCX and FI shall not change its
fiscal year to end on any date other than December 31.
(l) Investments in Nonrestricted Subsidiaries and
Persons Not Subsidiaries. FCX, FI and their Restricted
Subsidiaries shall not make or permit to exist (x) any
Guarantee by it or a Restricted Subsidiary of the Debt of
any Person (other than FM Properties Co., to the extent
permitted by Section 5.2(g)(vii)) which is not FCX or a
Restricted Subsidiary, including Nonrestricted Subsidiaries,
FTX and FRP (each such Person being a "Third Party"), or
(y) any loans or advances to, or purchase any stock, other
securities or evidences of indebtedness of, or permit to
exist any investment (whether by transfer of assets or
otherwise) or acquire any investment whatsoever in or make
any Guarantee with respect to any such loans, advances,
purchases, investments or acquisitions of interest with
respect to, or any other payment for the benefit of, any
Third Parties the aggregate outstanding amount of which
under clauses (x) and (y) at any time exceeds by more than
$75,000,000 the largest aggregate amount thereof outstanding
at any time in the preceding fiscal year of FI, but only so
long as no Default or Event of Default (including under
Section 5.2(b)) shall have occurred or be continuing as of
the effective date of such transaction and after giving
effect thereto; provided that, notwithstanding the
provisions of clauses (x) and (y) above, FCX, FI and the
Restricted Subsidiaries may invest in Portfolio Investments,
FCX may enter into and perform the FCX/FMPO Guarantee and FI
may consummate the Waste Water Transaction and transfer the
remaining ALatieF-FI Assets, PFT Assets and P&O Assets as
required by the ALatieF Documents, the PFT Documents and the
P&O Documents, respectively, each of which shall not be
included in the calculation of such $75,000,000 annual
limit.
(m) Federal Reserve Regulations. FCX and FI will
not, and will cause their Subsidiaries not to, use the
proceeds of any Loan in any manner that would result in a
violation of, or be inconsistent with, the provisions of
Regulations G, U or X.
(n) FI Transfers. FI shall not make any
contribution or transfer of any substantial portion of its
assets to FCX or any Restricted Subsidiary other than
(i) permitted cash dividends to FCX and (ii) to a Wholly
Owned Restricted Subsidiary of FI all the equity in which
shall be pledged pursuant to the FI Security Documents to
the FI Collateral Agent as additional security for the Loans
to FI.
(o) Specified Transactions. FCX and FI shall not
(i) enter into any amendment or modification of any of the
Specified Documents which would have an adverse effect upon
the rights and remedies of the Administrative Agent, the FI
Trustee and the Banks under the Loan Documents or the
collateral therefor (the "FI Collateral and Rights") or
impair the ability of FCX, FI or the Restricted Subsidiaries
to perform all of their respective obligations under the
Loan Documents; (ii) make, or permit any Restricted
Subsidiary to make, any voluntary prepayment of any of the
Specified Obligations (including the B.V. Notes and any
other Debt incurred in connection with such Specified
Transaction) or directly or indirectly, with or from any
funds or assets provided, directly or indirectly, by FCX, FI
or any Restricted Subsidiary beyond those expressly
permitted by Section 5.2(1) (collectively, "Restricted
Assets"), in any such case during the continuance of any
Default or Event of Default or, if, after giving effect to
any such voluntary prepayment (x) any Default or Event of
Default would then exist or result from such transaction or
(y) except for refinancings thereof on terms that are not
more restrictive on, or less favorable to, FI, if the
Available Borrowing Base would be less than $125,000,000;
(iii) make, or permit any Restricted Subsidiary to make, any
voluntary repurchase of the PFT Assets, the ALatieF Assets,
the P&O Assets, the Airfast Assets or the Waste Water Assets
directly or indirectly from or with any Restricted Asset
during the continuance of any Default or Event of Default
or, if, after giving effect to any such voluntary
repurchase, (x) any Default or Event of Default would then
exist or result from such transaction or (y) if the
Available Borrowing Base would be less than $125,000,000 nor
shall FCX and FI grant or provide (or permit any Restricted
Subsidiary to grant or provide) any additional security or
collateral to secure any Specified Obligations (other than
as required under the Specified Documents with respect to
substitution or replacement of existing collateral) and
other than the transfer of the remaining ALatieF-FI Assets,
P&O Assets and PFT Assets as required by the ALatieF
Documents, the P&O Documents and the PFT Documents.
(p) Transactions with Affiliates. Other than the
transactions constituting the Restructuring, FCX, FI and
their Restricted Subsidiaries' shall not sell or transfer
any property or assets to, or purchase or acquire any
property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that as
long as no Default or Event of Default shall have occurred
and be continuing, FCX, FI or any Restricted Subsidiary may
engage in any of the foregoing transactions (i) in the case
of a transaction between FCX, FI or a Restricted Subsidiary
of FI and a non-Wholly Owned Restricted Subsidiary, FI has
determined that such transaction is in the best interests of
FI and (ii) in the case of any other transaction between
FCX, FI or a Restricted Subsidiary and an Affiliate which is
not a Restricted Subsidiary, at prices and on terms and
conditions not less favorable to FI or such Restricted
Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties.
(q) Equity Payments. FCX and FI shall not make
an Equity Payment if there is then continuing any Default or
Event of Default (or a Default or Event of Default would
result therefrom or exist after giving effect thereto),
including pursuant to Section 5.2(b).
(r) Covenants Regarding Waste Water. FI shall
not consummate the Waste Water Transaction until such time
as (i) the Administrative Agent has received and given
written approval of the Waste Water Documents to which FI,
FCX or any Restricted Subsidiary is a party or with respect
to which FI, FCX or any Restricted Subsidiary has any direct
or indirect obligation or liability, each such approval to
be conditioned upon the satisfactory factoring of such
financing and/or obligations into the calculation of
Borrowing Base Debt and (ii) the Administrative Agent has
entered into an agreement with the secured bank lenders to
Waste Water recognizing and agreeing not to contest such
lenders liens on the Waste Water Assets in exchange for a
reciprocal agreement by such lenders with respect to the
Liens of the FI Security Documents (and the Banks hereby
authorize the Administrative Agent to enter into such
agreements).
(s) Hedge Transactions. FCX, FI and the
Restricted Subsidiaries will enter into or become obligated
with respect to Hedge Agreements only in the ordinary course
of business to hedge or protect against actual or reasonably
anticipated exposures and not for speculation.
SECTION 5.3. Covenants Relating to RTZ
Transaction. FCX and FI shall not, directly or indirectly
enter into (i) any amendment or modification of (x) the
Stock Purchase Agreement or the Implementation Agreement
from and after the Fifth Amendment Closing Date, (y) any
amendment or modification of the Participation Agreement or
the RTZ Loan Agreement from and after the RTZ Closing Date
or (z) any other material agreement in connection therewith,
at any time, in each case other than pursuant to documents
approved by the Required Banks (the Stock Purchase
Agreement, the Implementation Agreement, the Participation
Agreement, the RTZ Loan Agreement and such other approved
material agreements being, collectively, the "RTZ
Documents") which would have an adverse effect upon the FI
Collateral and Rights or impair the ability of any of FCX,
FI or the Restricted Subsidiaries to perform all of their
respective obligations under the Loan Documents (including
under this Section 5.3); or (ii) if any Default or Event of
Default shall have occurred and be continuing or would
result therefrom, make payment of the Debt under the
RTZ Loan Agreement with or from any funds or assets other
than Incremental Expansion Cashflow (as defined in the
Participation Agreement). Without the prior written
approval of the Required Banks, FI shall not (i) consent to
any "Closedown" (as such term is defined in the
Participation Agreement) or any amendment, modification or
waiver of Section 10.5 of the Participation Agreement,
(ii) consent to any assignment by RTZ, RTZ Lender or PT-RTZ
of the RTZ Documents or their respective obligations
thereunder, (iii) waive any material condition to closing
under the Implementation Agreement, (iv) agree to or
effectuate any alternative arrangements pursuant to Section
11 of the Implementation Agreement, (v) waive any material
default by RTZ under the RTZ Documents or (vi) resign as the
Operator under the Participation Agreement. Subject to the
penultimate sentence of this Section 5.3, FI and its
Restricted Subsidiaries shall not cause or permit any assets
of it or its Restricted Subsidiaries to be or become Joint
Account Assets under the Participation Agreement for other
than full fair market compensation nor shall FCX and FI
grant or provide (or permit any Restricted Subsidiary to
grant or provide) any additional security or collateral to
secure any obligation to RTZ or its Affiliates (including
obligations under the RTZ Loan Agreement) other than the
transfer of the RTZ Interests as required by the
Participation Agreement and the grant of a first priority
security interest to RTZ Lender in the RTZ Collateral, in
each case subject to the terms of the FI Intercreditor
Agreement and the FI Trust Agreement. FI and its Restricted
Subsidiaries shall not engage in any transaction (other than
the RTZ Transactions) or dealing with, or assign or transfer
any assets to, PT-RTZ or any of its Affiliates other than on
an arm's-length basis. FI shall promptly provide to the
Administrative Agent copies of all annual financial reports
and budgets pursuant to the Participation Agreement and all
other material notices and reports under the RTZ Documents.
FI shall also conduct Joint Operations (as defined in the
Participation Agreement) in a manner which does not prevent
or adversely affect, and at all times shall retain rights
under the Contract of Work and tangible assets sufficient
for, FI's production activities from which revenues from
scheduled production of the 10-K Reserves referred to in
Schedule VII to the FCX Credit Agreement are pledged to the
Banks. Subject to the foregoing and the other terms of the
Loan Documents (including Section 10.17), FI and FCX may
enter into and perform their obligations under the
RTZ Documents.
ARTICLE VI
Conditions of Credit
SECTION 6.1. Conditions Precedent to Each Credit
Event. Each Credit Event shall be subject to the following
conditions precedent:
(i) the representations and warranties on the part
of FXC and FI contained in the Loan Documents shall be true
and correct in all material respects at and as of the date
of such Credit Event as though made on and as of such date;
(ii) the Administrative Agent shall have received a
notice of such borrowing as required by Section 3.3;
(iii) no Event of Default shall have occurred and be
continuing on the date of such Credit Event or would result
from such Credit Event;
(iv) there shall have been no amendments to the
Certificate of Incorporation, Articles of Association or
Certificate of Domestication, as applicable, or the By-laws
of FCX or FI since the date of the Certificate furnished by
FI pursuant to Section 6(a) of the Amendment Agreement,
other than amendments, if any, copies of which have been
furnished to the Administrative Agent; and
(v) except as permitted by the proviso to Section
5.2(c), there shall be no proceeding for the dissolution or
liquidation of FCX or FI or any proceeding to revoke the
Certificate of Incorporation or Articles of Association of
FCX or FI or its respective corporate existence, which is
pending or, to the knowledge of FCX or FI, threatened
against or affecting FCX or FI.
SECTION 6.2. Representations and Warranties with
Respect to Credit Events. Each Credit Event shall be deemed
a representation and warranty by FCX and FI that the
conditions precedent to such Credit Event, unless otherwise
waived in accordance herewith, shall have been satisfied.
ARTICLE VII
Events of Default
SECTION 7.1. Events of Default. If any of the
following acts or occurrences (an "Event of Default") shall
occur and be continuing:
(a) default for three or more days in the payment
when due of any principal of any Corporate Group Note; or
(b) default for five or more days in the payment
when due of any interest on any Corporate Group Note, or of
any other amount payable under any Loan Document; or
(c) any representation or warranty made or deemed
made in or in connection with any Loan Document or in any
certificate, letter or other writing or instrument furnished
or delivered to the Agents, the FCX Agent, the FI Trustee,
the FCX Collateral Agent, any Bank or any FI Lender pursuant
hereto or to the FCX Credit Agreement shall prove to have
been incorrect in any material respect when made or
effective or reaffirmed and repeated, as the case may be; or
(d) default by FI or FCX in the due observance or
performance of any covenant, condition or agreement in
Sections 5.1(a)(4) with respect to notices of Defaults or
Events of Default, 5.1(c), 5.1(h) or 5.1(k) of either this
Agreement or the FCX Credit Agreement, other than the
covenant to preserve and maintain all of such Person's
rights, privileges and franchises desirable in the normal
conduct of its business; or
(e) default by FI or FCX in the due observance or
performance of any covenant, condition or agreement in
Section 5.2 or 5.3 of this Agreement or in Section 5.2 or
5.3 of the FCX Credit Agreement (other than, in each case,
Section 5.2(k)); or
(f) default by FI or FCX in the due observance or
performance of any other covenant, condition or agreement in
any Corporate Group Facility or in any other Loan Documents
which shall remain unremedied for 30 days after written
notice thereof shall have been given to such Person by any
Bank; or
(g) FI, FCX or any Restricted Subsidiary shall
(i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal
or state bankruptcy, insolvency, liquidation or similar law
or, in the case of FI, any such law of Indonesia,
(ii) consent to the institution of, or fail to contravene in
a timely and appropriate manner, any proceeding or the
filing of any petition described in clause (h) below,
(iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator or similar official for FI,
FCX or such Restricted Subsidiary or for a substantial part
of its property or assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in writing
its inability or fail generally to pay its debts as they
become due or (vii) take any action for the purpose of
effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or
an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of FI,
FCX or any Restricted Subsidiary, or of a substantial part
of the property or assets of FCX, FI or any Restricted
Subsidiary, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal or
state bankruptcy, insolvency, receivership or similar law
or, in the case of FI, any such law of Indonesia, (ii) the
appointment of a receiver, trustee, custodian, sequestrator
or similar official for FI, FCX or any Restricted Subsidiary
or for a substantial part of the property of FI, FCX or any
Restricted Subsidiary or (iii) the winding-up or liquidation
of FI, FCX or any Restricted Subsidiary; and such proceeding
or petition shall continue undismissed for 60 days, or an
order or decree approving or ordering any of the foregoing
shall continue unstayed and in effect for 30 days; or
(i) default shall be made with respect to (x) any
Hedge Agreements or (y) any Debt of FI, FCX or any
Restricted Subsidiary if the effect of any such default
shall be to accelerate, or to permit the holder or obligee
of any such obligation or Debt (or any trustee on behalf of
such holder or obligee) to accelerate (with or without
notice or lapse of time or both), the maturity of Debt
and/or the payment of any net termination value in respect
of Hedge Agreements in an aggregate amount in excess of
$10,000,000; or any payment of principal or interest and/or
of any payment due under a Hedge Agreement, regardless of
amount, on any Hedge Agreement or Debt of FI, FCX or a
Restricted Subsidiary in an aggregate principal amount (or
in the case of a Hedge Agreement, with a net termination
value) in excess of $10,000,000, 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 Debt or other
obligation); or
(j) an ERISA Event shall have occurred with respect
to any Plan or Multi-Employer Plan that, when taken together
with all other ERISA Events, reasonably could be expected to
result in liability of FI, FCX and/or any Restricted
Subsidiary and FI's and FCX's ERISA Affiliates in an
aggregate amount exceeding $25,000,000 or requires payments
exceeding $10,000,000 in any year; or
(k) a final judgment for the payment of money in
excess of $10,000,000 shall be rendered by a court or other
tribunal against FI, FCX or any Restricted Subsidiary and
shall remain undischarged for a period of 45 consecutive
days during which execution of such judgment shall not have
been stayed effectively; or any action shall be legally
taken by a judgment creditor to levy upon assets or
properties of FI, FCX or any Restricted Subsidiary to
enforce any such judgment; or
(l) the security interest in the Contract of Work
granted in the FI Trust Agreement or any other security
interest granted under any other FI Security Document shall
be deemed to be invalid or fail to be in full force and
effect or the Contract of Work shall be terminated or
otherwise fail to be in full force and effect or shall be
amended without the consent of the Required Banks in any
manner which materially and adversely affects the rights and
benefits granted to the FI Trustee and the Banks under the
FI Security Documents; or the Ministry of Mines and Energy
of Indonesia (or any successor entity) or the Government of
Indonesia shall have taken any action in contravention of
the Contract of Work which materially adversely affects FI's
ability to perform its obligations under any Corporate Group
Facility or the rights and benefits granted to the FI
Trustee under any FI Security Document; or
(m) any Governmental Authority shall condemn, seize,
nationalize, assume the management of or appropriate any
material portion of FI's property, assets or revenues
(either with or without payment of compensation); or
(n) any default or other event shall occur with
respect to any of the Specified Documents which would (with
or without the passage of time or the giving of notice)
permit acceleration or require prepayment of any of the
Specified Obligations other than with respect to a casualty
event or condemnation affecting the related Specified
Assets, permit foreclosure upon the related Specified Assets
or require FI to repurchase the related Specified Assets; or
(o) any security interest purported to be created by
the FCX Pledge Agreements shall cease to be, or shall be
asserted by FI, FCX or any of their Affiliates not to be, a
valid, perfected, first priority security interest in the
securities, assets or properties covered thereby, except to
the extent that any such loss of perfection or priority
results from the failure of the FCX Collateral Agent to
maintain possession of certificates representing securities
pledged under the FCX Pledge Agreements to the extent that
such pledged securities are certificated securities; or
(p) FI shall resign as "Operator" under the
Participation Agreement or an "Event of Default" under the
RTZ Loan Agreement or an "Event of Resignation" under the
Participation Agreement (or any event or condition which
with or without the passage of time or the giving of notice
would constitute such an "Event of Default" or an "Event of
Resignation") shall occur and be continuing; or
(q) there shall have occurred a Change in Control;
then, and in any such event (other than an event with
respect to FI or FCX described in paragraph (g) or (h)
above), and at any time thereafter during the continuance of
such event, the Administrative Agent may, and at the request
of the Required Banks shall, by written or telegraphic
notice to FI and FCX, take one or more of the following
actions at the same or different times: (i) declare the
Total Commitment to be terminated, whereupon the Total
Commitment shall forthwith terminate; (ii) declare all sums
then owing by FI under the Promissory Notes or otherwise
owing hereunder to be forthwith due and payable, whereupon
all such sums shall become and be immediately due and
payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by FI,
anything contained herein or in any Promissory Note to the
contrary notwithstanding or (iii) exercise any or all the
remedies then available under the FI Security Documents or
the FCX Pledge Agreements; provided, however, that upon the
occurrence of any event described in paragraph (g) or (h) of
this Section 7.1 as to which FI or FCX is the entity
involved, all sums then owing by FI to the Banks upon the
Promissory Notes or otherwise hereunder shall, without any
declaration or other action by any Bank hereunder, be
immediately due and payable and the Total Commitment
hereunder shall be immediately terminated without
presentment, demand, protest or notice of any kind, all of
which are expressly waived by FI, anything contained herein
or in any Promissory Note to the contrary notwithstanding.
Promptly following the making of any such declaration, the
Administrative Agent shall give notice thereof to FI but
failure to do so shall not impair the effect of such
declaration.
ARTICLE VIII
The Agents and the FI Trustee
SECTION 8.1. The Agents and the FI Trustee.
(a) For convenience of administration and to expedite the
transactions contemplated by this Agreement, Chemical is
hereby appointed as Administrative Agent and FCX Collateral
Agent for the Banks under this Agreement and the FCX Pledge
Agreements, Chase is hereby appointed as the Documentary
Agent for the Banks under this Agreement and First Bank,
National Association is hereby appointed as FI Trustee for
the Banks under the FI Security Documents. Each Bank
(i) confirms and agrees to be bound by the terms of the FI
Trust Agreement and (ii) agrees that the FI Trustee in
accepting appointment and in acting as security agent under
the FI Security Documents shall be entitled to all the
rights, immunities, privileges, protections, exculpations,
indemnifications, liens and other benefits applicable to its
acting as trustee under the FI Trust Agreement. None of the
Agents shall have any duties or responsibilities with
respect hereto except those expressly set forth herein or in
the other Loan Documents. Each Bank, and each subsequent
holder of any Promissory Note by its acceptance thereof,
hereby irrevocably appoints and expressly authorizes the
Agents, without hereby limiting any implied authority, to
take such action as the Agents may deem appropriate on its
behalf and to exercise such powers under this Agreement as
are specifically delegated to such Person by the terms
hereof, together with such powers as are reasonably
incidental thereto. The Administrative Agent is hereby
expressly authorized by the Banks, without hereby limiting
any implied authority, (a) to receive on behalf of the Banks
all payments of principal of and interest on the Loans and
all other amounts due to the Banks hereunder, and promptly
to distribute to each Bank its proper share of each payment
so received; (b) to give notice on behalf of the Banks to FI
and FCX of any Event of Default specified in this Agreement
of which the Administrative Agent has actual knowledge
acquired in connection with its agency hereunder or as
directed by the Required Banks; and (c) to distribute to
each Bank copies of all notices, financial statements and
other materials delivered by FI or FCX pursuant to this
Agreement as received by the Administrative Agent. Without
limiting the generality of the foregoing, the FCX Collateral
Agent is hereby expressly authorized to execute any and all
documents (including releases) with respect to the
collateral under the FCX Pledge Agreements and the rights of
the secured parties with respect thereto, as contemplated by
and in accordance with the provisions of this Agreement and
the FCX Pledge Agreements. Each of the Administrative Agent
and the FCX Collateral Agent may exercise any of its duties
hereunder by or through their respective agents, officers or
employees. In addition, each Bank hereby irrevocably
authorizes and directs (i) the FCX Collateral Agent to
enter, on behalf of each of them, into the FCX Pledge
Agreements and the FCX Intercreditor Agreement as
contemplated pursuant to this Agreement, (ii) the
Administrative Agent to enter, on behalf of each of them,
into the FI Intercreditor Agreement and the FCX
Intercreditor Agreement as contemplated pursuant to this
Agreement and (iii) the FI Trustee to enter, on behalf of
each of them, into the FI Security Documents, and in each
case agrees to be bound by the terms thereof.
(b) None of the Agents or any of their respective
directors, officers, agents or employees shall be liable as
such for any action taken or omitted to be taken by any of
them except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document
delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance
or observance by FCX or FI or any other party of any of the
terms, conditions, covenants or agreements contained in any
Loan Document. The Agents shall not be responsible to the
Banks or the holders of the Notes for the due execution,
genuineness, validity, enforceability or effectiveness of
this Agreement, the Notes or any other Loan Documents or
other instruments or agreements. The Administrative Agent
may deem and treat the payee of any Promissory Note as the
owner thereof for all purposes hereof until it shall have
received from the payee of such Promissory Note notice,
given as provided herein, of the transfer thereof in
compliance with Section 10.3. The Agents shall in all cases
be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required
Banks and, except as otherwise specifically provided herein,
such instructions and any action or inaction pursuant
thereto shall be binding on all the Banks and each
subsequent holder of any Promissory Note. Each Agent shall,
in the absence of knowledge to the contrary, be entitled to
rely on any instrument or document believed by it in good
faith to be genuine and correct and to have been signed or
sent by the proper Person or Persons. None of the Agents
nor any of their respective directors, officers, employees
or agents shall have any responsibility to FI, FCX or any
other party on account of the failure of or delay in
performance or breach by any Bank of any of its obligations
hereunder or to any Bank on account of the failure of or
delay in performance or breach by any other Bank or FI, FCX
or any other party of any of their respective obligations
hereunder or under any other Loan Document or in connection
herewith or therewith. Each of the Agents may execute any
and all duties hereunder by or through agents or employees
and shall be entitled to rely upon the advice of legal
counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice
of such counsel. The Banks hereby acknowledge that none of
the Agents shall be under any duty to take any discretionary
action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in
writing to do so by the Required Banks.
(c) To the extent that any Agent shall not be
reimbursed by FI or FCX for any costs, liabilities or
expenses incurred in such capacity or, to the extent the FI
Trustee shall not be reimbursed by FI or FCX for any costs,
liabilities or expenses incurred in its capacity as trustee
under the FI Trust Agreement (including in its capacity as
security agent under the FI Security Documents), each Bank
agrees (i) to reimburse such Agent or the FI Trustee, as
applicable, on demand, in the amount of its Applicable
Percentage Commitments hereunder) of any expenses incurred
for the benefit of the Banks by such Agent or the FI
Trustee, as applicable, including counsel fees and compensa-
tion of agents and employees paid for services rendered on
behalf of the Banks and (ii) to indemnify and hold harmless
each Agent, the FI Trustee and any of their directors,
officers, employees or agents, on demand, in the amount of
such Applicable Percentage, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against it in its capacity as Agent
or FI Trustee for the Banks, as applicable, or any of them
in any way relating to or arising out of this Agreement or
any other Loan Document or any action taken or omitted by it
or any of them under this Agreement or any other Loan
Document; provided, however, that no Bank shall be liable to
an Agent or the FI Trustee for any portion of such
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of
such Agent or FI Trustee, as applicable, or of its
directors, officers, employees or agents.
(d) With respect to the Loans made by it hereunder
and the Promissory Notes issued to it, each Agent in its
individual capacity and not as Agent shall have the same
rights and powers as any other Bank and may exercise the
same as though it were not an Agent, and the Agents and
their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with FI, FCX or any
Subsidiary or other Affiliate thereof as if it were not an
Agent.
(e) Subject to the appointment and acceptance of a
successor Agent as provided below, any Agent may resign at
any time by giving written notice thereof to the Banks, FI
and FCX. Upon any such resignation, the Required Banks
shall have the right to appoint, and FI and FCX shall have
the right to approve (such approval not to be unreasonably
withheld or delayed) a successor Administrative Agent, FCX
Collateral Agent or Documentary Agent, as the case may be.
If no successor Agent, FCX Collateral Agent or Documentary
Agent, as the case may be, shall have been so appointed and
approved and shall have accepted such appointment, within
30 days after the retiring Agent's giving of notice of
resignation, then the retiring Person may, on behalf of the
Banks, appoint a successor Administrative Agent, FCX
Collateral Agent or Documentary Agent, as the case may be,
which shall be a Bank with an office in New York, New York,
having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such Bank. Upon the
acceptance of any appointment as Administrative Agent, FCX
Collateral Agent or Documentary Agent hereunder by a
successor Administrative Agent, FCX Collateral Agent or
Documentary Agent, as the case may be, such successor
Administrative Agent, FCX Collateral Agent or Documentary
Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall from and after such date
be discharged from its duties and obligations hereunder.
After any such retiring Agent's resignation hereunder as
Administrative Agent, FCX Collateral Agent or Documentary
Agent, as applicable, the provisions of this Article VIII
and Section 10.4 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was
acting as the Administrative Agent, FCX Collateral Agent or
Documentary Agent, as applicable.
(f) The Administrative Agent and the Documentary
Agent shall be responsible for supervising the preparation,
execution and delivery of this Agreement and the other
agreements and instruments contemplated hereby, any
amendment or modification thereto and the closing of the
transactions contemplated hereby and thereby. In addition,
the Administrative Agent shall assist the FCX Collateral
Agent and the FI Trustee in the performance of its duties as
may be reasonably requested by the FCX Collateral Agent or
the FI Trustee from time to time.
(g) The obligations of the Administrative Agent,
the FI Trustee, the FCX Collateral Agent and the Documentary
Agent shall be separate and several and neither of them
shall be responsible or liable for the acts or omissions of
the other, except, to the extent that any such Agent serves
in more than one agency capacity, such Agent shall be
responsible for the acts and omissions relating to each such
agency function.
(h) Without the prior written consent of the
Required Banks but subject to Section 10.7(b), the
Administrative Agent and the FCX Collateral Agent will not,
except as contemplated by Section 8.1(j), consent to any
modification, supplement or waiver of the FI Intercreditor
Agreement, the FCX Intercreditor Agreement or (except as
required by the FCX Intercreditor Agreement) the FCX Pledge
Agreements, and the FI Trustee will not consent to any
modification, supplement or waiver of the FI Security
Documents.
(i) Each Bank acknowledges that it has,
independently and without reliance upon the Agents or any
other Bank 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 Bank also
acknowledges that it will, independently and without
reliance upon the Agents or any other Bank 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 or any
other Loan Document, any related agreement or any document
furnished hereunder or thereunder.
(j) Notwithstanding any other provision of this
Section 8.1, the Administrative Agent will, at the request
of FI, instruct the FI Trustee to release (or to subordinate
such interest) from the FI Trust Agreement and the other FI
Security Documents (and enter into an amendment to the FI
Trust Agreement and the other FI Security Documents and
execute such other instruments as may be necessary in
connection therewith) any interest of the FI Trustee in (i)
the rights of FI under the Contract of Work in respect of
all or any part of Contract Area Block B (as defined in the
Contract of Work), without further consent by the Required
Banks if, in the opinion or opinions of counsel acceptable
to the Administrative Agent and in the opinion of the
Administrative Agent, such release is to be effected without
impairing or adversely affecting (a) the Lien and interest
of the FI Trustee stated to be created in the rights of FI
under the Contract of Work in respect of Contract Area Block
A (as defined in the Contract of Work) and the FI Project
(to the extent it includes the mining, concentrating,
transportation, shipping and related operations of FI in
respect of FI Product obtained or produced from Contract
Area Block A) by the FI Trust Agreement and the other FI
Security Documents, the Memorandum of Understanding and the
Contract of Work or (B) the rights of FI relating to
ownership and operation of the FI Project (to the extent it
includes the mining, concentrating, transportation, shipping
and related operations of FI in respect of FI Product
obtained or produced from Contract Area Block A), (ii) the
property and rights to be transferred pursuant to the Waste
Water Transfer, (iii) the remaining property and rights to
be transferred after the Fifth Amendment Closing Date to
complete the ALatieF-FI Transfer and the PFT Transfer,
(iv) upon receipt by the Administrative Agent of a
certificate from a Financial Officer of FI specifying the
asset to be released and the related transaction and
certifying that after giving effect thereto, no Default or
Event of Default shall occur or be continuing, specific
physical assets (which may either be released from the Lien
of the FI Security Documents or excluded from the after-
acquired property clauses of the FI Security Documents) (x)
as required to be released to provide additional collateral
for the Caterpillar Obligations, as a result of decreases in
the value of the Caterpillar Assets, but not in excess of
$10,000,000 (valued as provided in the Caterpillar
Documents) in the aggregate for all such additional
collateral provided during the term of the Caterpillar
Obligations and (y) to allow sales, secured financings,
capital leases and sale and leaseback transactions expressly
permitted hereby and (v) on and after the RTZ Closing Date,
upon receipt by the Administrative Agent of a certificate
from a Financial Officer specifying the asset to be released
and the related transaction and certifying that after giving
effect thereto, no Default or Event of Default shall occur
or be continuing, the RTZ Interests as permitted by
Section 5.3 (which may either be released from the Lien of
the FI Security Documents or excluded from the after-
acquired property clauses of the FI Security Documents;
provided, however, that in the case of the RTZ Collateral,
the Lien of the FI Trustee in favor of the Banks and the FI
Lenders shall be subordinated to become a second priority
lien on the RTZ Collateral subject to the first priority
Lien of the RTZ Lender thereon on the terms of the Final FI
Trust Agreement and the FI Intercreditor Agreement).
ARTICLE IX
Guarantee
SECTION 9.1. Guarantee. As consideration for the
Banks' obligations to lend to FI hereunder, FCX hereby
unconditionally and irrevocably guarantees, as a primary
obligor and not merely as a surety, the due and punctual
payment of (x) the principal of and interest on each Loan to
FI, when and as due, whether at maturity, by acceleration,
by notice of prepayment or otherwise, (y) all other monetary
obligations of FI to the Banks, the Agents and the FI
Trustee under this Agreement and the other Loan Documents
and (z) all amounts owing by FI to any Bank pursuant to any
Permitted Secured Hedge with FI (collectively, the "FI
Obligations"). FCX further agrees that the FI Obligations
may be extended or renewed, in whole or in part, without
notice or further assent from it, and that it will remain
bound upon its guarantee notwithstanding any extension or
renewal of any such FI Obligation.
FCX waives presentment to, demand of payment from
and protest to FI of any of the FI Obligations, and also
waives notice of acceptance of its guarantee and notice of
protest for nonpayment. The obligations of FCX under this
Section 9.1 shall not be affected by (a) the failure of any
Bank, any Agent or the FI Trustee to assert any claim or
demand or to enforce any right or remedy against FI under
the provisions of this Agreement or otherwise; (b) any
rescission, waiver, amendment or modification of any of the
terms or provisions of this Agreement, any Promissory Note
any guarantee or any other agreement; (c) the release of any
security held by any Bank, any Agent or the FI Trustee for
the Obligations guaranteed by it or any of them; or (d) the
failure of any Bank, any Agent or the FI Trustee to exercise
any right or remedy against any other guarantor of the FI
Obligations.
FCX further agrees that its guarantee constitutes a
guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by any
Bank, any Agent or the FI Trustee to any security held for
payment of the FI Obligations or to any balance of any
deposit account or credit on the books of such Bank in favor
of FI or any other Person.
The obligations of FCX under this Section 9.1 shall
not be subject to any reduction, limitation, impairment or
termination for any reason, including, without limitation,
any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or
setoff, counterclaim, recoupment or termination whatsoever
by reason of the invalidity, illegality or unenforceability
of the FI Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of FCX under
this Section 9.1 shall not be discharged or impaired or
otherwise affected by the failure of any Bank, any Agent or
the FI Trustee to assert any claim or demand or to enforce
any remedy under this Agreement, any Promissory Note, any
guarantee or any other agreement, by any waiver or
modification of any thereof, by any default, failure or
delay, wilful or otherwise, in the performance of the FI
Obligations, or by any other act or omission which may or
might in any manner or to any extent vary the risk of FCX,
or otherwise operate as a discharge of FCX as a matter of
law or equity.
FCX further agrees that its guarantee shall continue
to be effective or be reinstated, as the case may be, if at
any time payment, or any part thereof, of principal of or
interest on any Obligation guaranteed by it (including,
without limitation, any payment pursuant to this guarantee)
is rescinded or must otherwise be restored by any Bank, any
Agent or the FI Trustee upon the bankruptcy or reorganiza-
tion of FI or otherwise.
In furtherance of the foregoing and not in limita-
tion of any other right which any Bank, any Agent or the FI
Trustee may have at law or in equity against FCX by virtue
hereof, upon the failure of FI to pay any of the FI
Obligations when and as the same shall become due, whether
at maturity, by acceleration, after notice of prepayment or
otherwise, FCX hereby promises to and will, upon receipt of
written demand by any Bank, any Agent or the FI Trustee,
forthwith pay, or cause to be paid, to the Administrative
Agent for distribution to the Banks, the Agents or the FI
Trustee, as appropriate, in cash the amount of such unpaid
FI Obligations, and at such time as all such FI Obligations
owing to such Bank, such Agent, or the FI Trustee as
applicable, have been indefeasibly paid in full and its
Commitment terminated, such Bank shall, in a reasonable
manner, assign the amount of such FI Obligations owed to it
and paid by FCX pursuant to this guarantee to FCX, such
assignment to be pro tanto to the extent to which the FI
Obligations in question were discharged by FCX or make such
other disposition thereof as FCX shall direct (all without
recourse to such Bank, such Agent or the FI Trustee, as
applicable, and without any representation or warranty by
such Bank, such Agent or the FI Trustee, as applicable).
Upon payment by FCX of any sums to a Bank, an Agent
or the FI Trustee as provided above in this Section 9.1, all
rights of FCX against FI arising as a result thereof by way
of right of subrogation or otherwise shall in all respects
be subordinated and junior in right of payment to the prior
indefeasible payment in full of all the FI Obligations to
the Banks, the Agents and the FI Trustee and all the FI
Obligations and shall not be exercised by FCX prior to
indefeasible payment in full of all Corporate Group Loans
and termination of the Commitments and the commitments under
the FCX Credit Agreement.
ARTICLE X
Miscellaneous
SECTION 10.1. Notices. Notices and other com-
munications provided for herein shall be in writing and
shall be delivered by hand or overnight or same day courier
service or mailed or sent by telex, telecopy, graphic
scanning or other telegraphic communications equipment of
the sending party to the appropriate party's address set
forth on the signature pages hereof. 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 if hand delivered or three
days after being sent by registered or certified mail,
postage prepaid, return receipt requested, if by mail, or
upon receipt if by any telecopy, telegraphic or telex
communications equipment, in each case addressed to such
party as provided in this Section 10.1 or in accordance with
the latest unrevoked direction from such party. Any notice
delivered to FCX hereunder shall be deemed also to have been
given to FI, and such notice shall be deemed to have been
given to FI on the day it is deemed to have been given to
FCX.
SECTION 10.2. Survival of Agreement. All cove-
nants, agreements, representations and warranties made by FI
or FCX herein and in the certificates or other instruments
prepared or delivered in connection with this Agreement
shall be considered to have been relied upon by the Banks,
the Agents and the FI Trustee and shall survive the making
by the Banks of the Loans and the execution and delivery to
the Banks of the Promissory Notes evidencing such Loans
regardless of any investigation made by the Banks or on
their behalf, and shall continue in full force and effect as
long as the principal of or any accrued interest on any
Corporate Group Note, any Commitment Fee or any other fee or
amount payable under the Corporate Group Notes or the
Corporate Group Facility is outstanding and unpaid and so
long as the Commitments or the commitments under the FCX
Credit Agreement have not been terminated.
SECTION 10.3. Successors and Assigns;
Participation; Purchasing Banks. (a) This Agreement shall
be binding upon and inure to the benefit of FI, FCX, the
Banks, the Agents, the FI Trustee and all future holders of
the Promissory Notes, and their respective successors and
assigns, except that neither FI or FCX may assign, delegate
or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Bank.
Any Bank may at any time pledge or assign all or any portion
of its rights under this Agreement and the Promissory Notes
issued to it to a Federal Reserve Bank to secure extensions
of credit by such Federal Reserve Bank to such Bank;
provided that no such pledge or assignment shall release a
Bank from any of its obligations hereunder or substitute any
such Federal Reserve Bank for such Bank as a party hereto.
(b) Any Bank may, in accordance with applicable
law, at any time sell to one or more banks or other entities
("Participants") participating interests in all or a portion
of any Loan owing to such Bank, any Promissory Note held by
such Bank, any Commitment of such Bank or any other interest
of such Bank hereunder. In the event of any such sale by a
Bank of participating interests to a Participant, such
Bank's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof, such
Bank shall remain the holder of any such Promissory Note for
all purposes under this Agreement and FI and the Agents
shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under
this Agreement. FI and FCX agree that if amounts
outstanding under this Agreement and the Promissory Notes
are due and unpaid, or shall have been declared due or shall
have become due and payable upon the occurrence of an Event
of Default, each Participant shall be deemed to have the
right of setoff in respect of its participating interest in
amounts owing under this Agreement and any Promissory Note
to the same extent as if the amount of its participating
interest were owing directly to it as a Bank under this
Agreement or any Promissory Note; provided that such right
of setoff shall be subject to the obligation of such
Participant to share with the Banks, and the Banks agree to
share with such Participant, as provided in Section 3.15.
FI and FCX also agree that each Participant shall be
entitled to the benefits of Sections 3.11, 3.12, 3.13, 3.15,
3.17, 3.18 and 10.5 with respect to its participation in the
Commitments and the Loans outstanding from time to time as
if it were a Bank; provided that no Participant shall be
entitled to receive any greater payment pursuant to such
Sections than the transferor Bank would have been entitled
to receive in respect of the amount of the participation
transferred by such transferor Bank to such Participant
unless such participation shall have been made at a time
when the circumstances giving rise to such greater payment
did not exist; and provided that the voting rights of any
Participant would be limited to amendments, modifications or
waivers decreasing any fees payable hereunder or the amount
of principal of or the rate at which interest is payable on
the Loans, extending any scheduled principal payment date or
date fixed for the payment of interest on the Loans,
changing or extending the Commitments or release of all or
substantially all the collateral for the Loans.
(c) Any Bank may, in accordance with applicable law
and subject to Section 10.3(h), at any time assign by
novation all or any part of its rights and obligations under
this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it and the Promissory
Notes held by it) (I) to any Bank or any Affiliate thereof,
without FI's and FCX's consent, or (II) to one or more
additional banks or financial institutions (any such entity
referred to in clause (I) or (II) being a "Purchasing Bank")
with the consent of the Administrative Agent, FI and FCX,
such consent not to be unreasonably withheld (it being
understood that FI and FCX may withhold their consent to a
Purchasing Bank (i) which is not a commercial bank or
savings and loan institution or (ii) which would, as of the
effective date of such assignment, be entitled to claim
compensation under Section 3.11 which the transferor Bank
would not be entitled to claim as of such date), pursuant to
a Commitment Transfer Supplement in the form of Exhibit D,
executed by such Purchasing Bank and such transferor Bank
(and, in the case of a Purchasing Bank that is not then a
Bank or an Affiliate thereof, by FI and the Administrative
Agent), and delivered for its recording in the Register to
the Administrative Agent, together with the Promissory Notes
subject to such assignment, the registration and processing
fee required by Section 10.3(e) and an Administrative
Questionnaire for the Purchasing Bank if it is not already a
Bank. Assignments shall be by novation only and a
proportionate interest in the Loans and Commitments to both
FI and FCX (and the related Promissory Notes) must be
assigned. Upon such execution, delivery and recording (and,
if required, consent of FI, FCX and the Administrative
Agent), from and after the Transfer Effective Date
determined pursuant to such Commitment Transfer Supplement
(which shall be at least five days after the execution and
delivery thereof), (x) the Purchasing Bank thereunder shall
(if not already a party hereto) be a party hereto and have
the rights and obligations of a Bank hereunder with a
Commitment as set forth in such Commitment Transfer
Supplement, and (y) the transferor Bank thereunder shall, to
the extent assigned by such Commitment Transfer Supplement,
be released from its obligations under this Agreement (and,
in the case of a Commitment Transfer Supplement covering all
or the remaining portion of a transferor Bank's rights and
obligations under this Agreement, such transferor Bank shall
cease to be a party hereto). Such Commitment Transfer
Supplement shall be deemed to amend this Agreement
(including Schedule II hereto) to the extent, and only to
the extent, necessary to reflect the addition of such
Purchasing Bank (if not already a party hereto) and the
resulting adjustment of Applicable Percentages arising from
the purchase by such Purchasing Bank of all or a portion of
the rights and obligations of such transferor Bank under
this Agreement and the Promissory Notes. On or prior to the
Transfer Effective Date determined pursuant to such
Commitment Transfer Supplement, FI, at its own expense,
shall execute and deliver to the Administrative Agent in
exchange for the surrendered Promissory Note a new
Promissory Note to the order of such Purchasing Bank in an
amount equal to the Commitment assumed by it pursuant to
such Commitment Transfer Supplement and, if the transferor
Bank has retained a Commitment hereunder, a new Promissory
Note to the order of the transferor Bank in an amount equal
to the Commitment retained by it hereunder. Such new
Promissory Notes shall be dated the Fifth Amendment Closing
Date and shall otherwise be in the form of the Promissory
Notes replaced thereby. The Promissory Notes surrendered by
the transferor Bank shall be returned by the Administrative
Agent to FI marked "canceled".
(d) The Administrative Agent, acting solely for
this purpose as an agent of FI, shall maintain at one of its
offices in The City of New York a copy of each Commitment
Transfer Supplement delivered to it and a register (the
"Register") for the recordation of the names and addresses
of the Banks and the Commitment of, and principal amount of
the Loans owing to, each Bank from time to time. The
entries in the Register shall be conclusive, in the absence
of manifest error, and the parties hereto may treat each
Person whose name is recorded in the Register as the owner
of the Loan recorded therein for all purposes of this
Agreement. The Register shall be available for inspection
by the parties hereto at any reasonable time and from time
to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer
Supplement executed by a transferor Bank and a Purchasing
Bank (and, in the case of a Purchasing Bank that is not then
a Bank or an affiliate thereof, by FI and the Administrative
Agent) together with payment to the Administrative Agent of
a registration and processing fee of $3,500, the
Administrative Agent shall (i) promptly accept such
Commitment Transfer Supplement and (ii) on the Transfer
Effective Date determined pursuant thereto record the
information contained therein in the Register and give
notice of such acceptance and recordation to the Banks and
FI.
(f) Subject to Section 10.15, FI and FCX authorize
each Bank to disclose to any Participant or Purchasing Bank
(each, a "Transferee") and any prospective Transferee any
and all financial and other information in such Bank's
possession concerning FI, FCX and its Affiliates which has
been delivered to such Bank by or on behalf of FI or FCX
pursuant to this Agreement or which has been delivered to
such Bank by or on behalf of FI or FCX in connection with
such Bank's credit evaluation of FI, FCX and their
Affiliates prior to becoming a party to this Agreement.
(g) If, pursuant to this Section 10.3, any interest
in this Agreement or any Promissory Note is transferred to
any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State
thereof, the transferor Bank shall immediately notify the
Administrative Agent of such transfer, describing the terms
thereof and indicating the identity and country of residence
of each Transferee. Such transferor Bank or Transferee
shall indemnify and hold harmless FI and the Administrative
Agent from and against any tax, interest, penalty or other
expense that FI and the Administrative Agent may incur as a
consequence of any failure to withhold United States taxes
applicable because of any transfer or participation
arrangement that is not fully disclosed to them as required
hereunder.
(h) By executing and delivering a Commitment
Transfer Supplement, the transferor Bank thereunder and the
Purchasing Bank thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as
follows: (i) such transferor Bank warrants that it is the
legal and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balance of its Loans, in
each case without giving effect to assignments thereof which
have not become effective, are as set forth in such
Commitment Transfer Supplement, (ii) except as set forth in
(i) above, such transferor Bank makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value
of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the
financial condition of FI, FCX or any Subsidiary or the
performance or observance by FI, FCX or any Subsidiary of
any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished
pursuant hereto; (iii) such Purchasing Bank represents and
warrants that it is legally authorized to enter into such
Commitment Transfer Supplement; (iv) such Purchasing Bank
confirms that it has received a copy of this Agreement,
together with copies of the most recent financial
statements, if any, delivered pursuant to Section 5.1 and
such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into such Commitment Transfer Supplement; (v) such
Purchasing Bank will independently and without reliance upon
the Agents, such transferor Bank or any other Bank and based
on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this
Agreement; (vi) such Purchasing Bank appoints and authorizes
the Agents to take such action as agent on its behalf and
the FI Trustee to take such action as FI Trustee on its
behalf and to exercise such respective powers under this
Agreement and the other Loan Documents as are delegated to
the Agents or the FI Trustee, as applicable, by the terms
hereof, together with such powers as are reasonably
incidental thereto; and (vii) such Purchasing Bank agrees
that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
(i) Notwithstanding anything in this Section 10.3
to the contrary, without the prior written consent of the
Administrative Agent, no Bank which is an FCX Lender shall
(except as permitted by paragraph (a) of this Section 10.3
regarding assignments to Federal Reserve Banks) make any
such assignment of its interests hereunder unless it shall
also assign, to the same assignee, the same proportion of
its interest in and commitment and loans outstanding under
the FCX Credit Agreement.
SECTION 10.4. Expenses of the Banks; Indemnity.
(a) FI and FCX agree, jointly and severally, to pay all
out-of-pocket expenses reasonably incurred by the Agents in
connection with the preparation and administration of this
Agreement, the Promissory Notes and the other Loan Documents
or with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the
transactions hereby contemplated shall be consummated) or
reasonably incurred by the Agents or any Bank in connection
with the enforcement or protection of their rights in
connection with this Agreement and the other Loan Documents
or with the Loans made or the Promissory Notes issued
hereunder (whether through negotiations, legal proceedings
or otherwise), including, but not limited to, the reasonable
fees and disbursements of Cravath, Swaine & ▇▇▇▇▇, special
counsel for the Agents, and Mochtar, Karuwin & ▇▇▇▇▇,
special Indonesian counsel to the Agents, and, in connection
with such enforcement or protection, the reasonable fees and
disbursements of other counsel for any Bank. FI and FCX
further jointly and severally agree that they shall
indemnify the Banks, the FI Trustee and the Agents from and
hold them harmless against any documentary taxes,
assessments or charges made by any Governmental Authority by
reason of the execution and delivery of or in connection
with the performance of this Agreement, any of the
Promissory Notes or any of the other Loan Documents.
Further, FI and FCX jointly and severally agree to pay, and
to protect, indemnify and save harmless each Bank, each
Agent, the FI Trustee and each of their respective officers,
directors, shareholders, employees, agents and servants from
and against, any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments,
demands, damages, costs or expenses (including, without
limitation, attorneys' fees and expenses) in connection with
any investigative, administrative or judicial proceeding,
whether or not such Bank or Agent or the FI Trustee shall be
designated a party thereto of any nature arising from or
relating to (i) the execution or delivery of this Agreement
or any other Loan Document or any agreement or instrument
contemplated thereby, the performance by the parties thereto
of their respective obligations thereunder or the
consummation of the transactions contemplated hereby and
thereby (including the Restructuring and the RTZ
Transactions) or (ii) the use of the proceeds of the Loans;
and FI and FCX also jointly and severally agree to pay, and
to protect, indemnify and save harmless each Bank, each
Agent, the FI Trustee and each of their respective officers,
directors, shareholders, employees, agents and servants from
and against, any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments,
demands, damages, costs or expenses (including, without
limitation, attorneys' fees and expenses in connection with
any investigative, administrative or judicial proceeding,
whether or not such Bank or Agent or the FI Trustee shall be
designated a party thereto) of any nature arising from or
relating to any actual or alleged presence or Release of
Hazardous Materials on any property owned or operated by FI
and FCX or any of the Subsidiaries, or any Environmental
Claim related in any way to FI or FCX or the Subsidiaries or
arising from or in connection with the environmental due
diligence summary memorandum referred to in
Section 6.1(a)(xii); provided that any such indemnity
referred to in this sentence shall not, as to any
indemnified Person, 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
non appealable judgment to have resulted from the gross
negligence or wilful misconduct of such indemnified Person.
If any action, suit or proceeding arising from any of the
foregoing is brought against any Bank, any Agent, the FI
Trustee or other Person indemnified or intended to be
indemnified pursuant to this Section 10.4, FI and FCX, to
the extent and in the manner directed by such indemnified
party, will resist and defend such action, suit or
proceeding or cause the same to be resisted and defended by
counsel designated by FI and FCX (which counsel shall be
satisfactory to such Bank, such Agent, the FI Trustee or
other Person indemnified or intended to be indemnified). If
FI or FCX shall fail to do any act or thing which it has
covenanted to do hereunder or any representation or warranty
on the part of FI or FCX contained in this Agreement shall
be breached, any Bank, the FI Trustee 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 Bank,
the FI Trustee or any Agent shall be repayable to it by FI
and FCX immediately upon such Bank's, the FI Trustee's or
such Agent's demand therefor.
(b) The provisions of this Section 10.4 shall
remain operative and in full force and effect regardless of
the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby or
thereby, the repayment of any of the Loans or any Promissory
Notes, the invalidity or unenforceability of any term or
provision of this Agreement, any other Loan Document or any
Promissory Note, or any investigation made by or on behalf
of any Bank, the FI Trustee or any Agent. All amounts due
under this Section 10.4 shall be payable on written demand
therefor.
SECTION 10.5. Right of Setoff. If an Event of
Default shall have occurred and be continuing and the Loans
shall have been accelerated or any Bank shall have requested
the Administrative Agent to declare the Loans immediately
due and payable pursuant to Article VII, then each Bank is
hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand,
provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the
credit or the account of FI or FCX against any of and all
the obligations of FI or FCX now or hereafter existing under
this Agreement and the Promissory Notes held by such Bank,
irrespective of whether or not such Bank shall have made any
demand under this Agreement or such Promissory Notes and
although such obligations may be unmatured. Each Bank
agrees promptly to notify FI or FCX after any such setoff
and application made by such Bank, but the failure to give
such notice shall not affect the validity of such setoff and
application. The rights of each Bank under this Section
10.5 are in addition to other rights and remedies
(including, without limitation, other rights of setoff)
which such Bank may have.
SECTION 10.6. APPLICABLE LAW. THIS AGREEMENT AND
THE PROMISSORY NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.7. Waivers; Amendments. (a) No failure
or delay of any Bank, any Agent or the FI Trustee in
exercising any power or right hereunder 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 Banks, the Agents and the FI Trustee
hereunder and under the other documents and agreements
entered into in connection herewith are cumulative and not
exclusive of any rights or remedies which they would other-
wise have. No waiver of any provision of this Agreement or
any Promissory Note or any other such document or agreement
or consent to any departure by FI or FCX therefrom shall in
any event be effective unless the same shall be authorized
as provided in paragraph (b) below, and then such waiver or
consent shall be effective only in the specific instance and
for the purpose for which given. No notice or demand on FI
or FCX in any case shall entitle FI or FCX to any other or
further notice or demand in similar or other circumstances.
Each holder of any of the Promissory Notes shall be bound by
any amendment, modification, waiver or consent authorized as
provided herein, whether or not such Promissory Note shall
have been marked to indicate such amendment, modification,
waiver or consent. To the extent that FI may now or
hereafter be entitled, in any jurisdiction in which judicial
proceedings may at any time be commenced with respect to
this Agreement, to claim for itself or its property, assets
or revenues any immunity (whether by reason of sovereignty
or otherwise) from suit, jurisdiction of any court,
attachment prior to judgment, setoff, execution of a
judgment or from any other legal process or remedy, and to
the extent that there may be attributed to FI such an
immunity (whether or not claimed), FI hereby irrevocably
agrees not to claim and hereby irrevocably waives such
immunity.
(b) Neither this Agreement nor any provision hereof
may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by FI, FCX
and the Required Banks; provided, however, that, no such
agreement shall (i) change the principal amount of, or
extend or advance the maturity of or any date for the
payment of any principal of or interest on, any Promissory
Note (including, without limitation, any such payment
pursuant to Section 3.7(b) or paragraph (b), (c) or (d) of
Section 3.9), or waive or excuse any such payment or any
part thereof, or change the rate of interest on any
Promissory Note, without the written consent of each holder
affected thereby, (ii) change or extend the Commitment of
any Bank without the written consent of such Bank, or change
any fees to be paid to any Bank or the Administrative Agent
hereunder without the written consent of such Bank or the
Agent, as applicable, (iii) amend or modify the provisions
of this Section 10.7, Section 3.8, Sections 3.11 through
3.15, Section 10.4 or Section 10.17 or Article IX or the
definition of "Required Banks", without the written consent
of each Bank, (iv) release the collateral granted as
security for the FI Obligations under the FI Security
Documents or the Collateral granted under the FCX Pledge
Agreements (except as expressly required hereby or thereby),
without the written consent of each Bank or (v) release FCX
of its obligations under Article IX without the written
consent of each Bank; and provided further that no such
agreement shall amend, modify or otherwise affect the rights
or duties of any Agent hereunder without the written consent
of such Agent. Each Bank and holder of any Promissory Note
shall be bound by any modification or amendment authorized
by this Section 10.7 regardless of whether its Promissory
Notes shall be marked to make reference thereto, and any
consent by any Bank or holder of a Promissory Note pursuant
to this Section shall bind any Person subsequently acquiring
a Promissory Note from it, whether or not such Promissory
Note shall be so marked.
SECTION 10.8. Severability. In the event any one
or more of the provisions contained in this Agreement or in
the Promissory Notes should be held invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein
or therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotia-
tions to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 10.9. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together
shall constitute but one contract, and shall become effec-
tive when copies hereof which, when taken together, bear the
signatures of each of the parties hereto shall be delivered
or mailed to the Administrative Agent, FCX and FI.
SECTION 10.10. Headings. Article and Section
headings and the Table of Contents used herein are for
convenience of reference only and are not to affect the
construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 10.11. Entire Agreement. This Agreement,
the other Loan Documents, the fee letters between the Agents
and FI and the exhibits and schedules hereto contain the
entire agreement among the parties hereto with respect to
the Loans and the related transactions. Any previous
agreement among the parties with respect to the subject
matter hereof is superseded by this Agreement, such fee
letters and the other Loan Documents. Nothing in this
Agreement or in the other Loan Documents, expressed or
implied, is intended to confer upon any party other than the
parties hereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 10.12. WAIVER OF JURY TRIAL, ETC.
(A) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.12.
(b) Except as prohibited by law, each party hereto
hereby waives any right it may have to claim or recover in
any litigation referred to in paragraph (a) of this Section
10.12 any special, indirect, exemplary, punitive or
consequential damages or any damages other than, or in
addition to, actual damages.
(c) Each party hereto (i) certifies that no
representative, agent or attorney of any Bank has repre-
sented, expressly or otherwise, that such Bank would not, in
the event of litigation, seek to enforce the foregoing
waivers and (ii) acknowledges that it has been induced to
enter into this Agreement or any other document, as appli-
cable, by, among other things, the mutual waivers and
certifications herein.
SECTION 10.13. Interest Rate Limitation.
Notwithstanding anything herein or in the Promissory Notes
to the contrary, if at any time the interest rate applicable
to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under
applicable law (collectively the "Charges"), as provided for
herein or in any other document executed in connection
herewith, or otherwise contracted for, charged, received,
taken or reserved by any Bank, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by such Bank in
accordance with applicable law, the rate of interest on such
Loan payable under the Promissory Note held by such Bank,
together with all Charges payable to such Bank, shall be
limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect
of such Loan but were not payable as a result of the
operation of this Section 10.13 shall be cumulated and the
interest and Charges payable to such Bank in respect of
other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such
Bank.
SECTION 10.14. JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (A) EACH OF FCX AND FI HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW
YORK CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, 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
SHALL AFFECT ANY RIGHT THAT ANY BANK, ANY AGENT OR THE FI
TRUSTEE MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY AGAINST FI OR FCX OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.
(B) FCX AND FI HEREBY IRREVOCABLY AND UNCONDI-
TIONALLY WAIVE, TO THE FULLEST EXTENT THEY MAY LEGALLY AND
EFFECTIVELY DO SO, ANY OBJECTION WHICH THEY MAY NOW OR HERE-
AFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY NEW YORK STATE
OR FEDERAL COURT. EACH OF THE PARTIES HERETO HEREBY IRREVO-
CABLY 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.
(C) EACH PARTY TO THIS AGREEMENT IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 10.1. NOTHING IN THIS AGREEMENT WILL
AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 10.15. Confidentiality. Each Bank agrees
(which agreement shall survive the termination of this
Agreement) that financial information, information from
FCX's and its Subsidiaries' books and records, information
concerning FCX's and its Subsidiaries' trade secrets and
patents and any other information received from FCX and its
Subsidiaries hereunder shall be treated as confidential by
such Bank, and each Bank agrees to use its best efforts to
ensure that such information is not published, disclosed or
otherwise divulged to anyone other than employees or
officers of such Bank and its counsel and agents; provided
that it is understood that the foregoing shall not apply to:
(i) disclosure made with the prior written author-
ization of FI or FCX, as applicable;
(ii) disclosure of information (other than that received
from FCX or FI and their Subsidiaries prior to or under this
Agreement) already known by, or in the possession of, such
Bank without restrictions on the disclosure thereof at the
time such information is supplied to such Bank by FCX or FI
or a Subsidiary hereunder;
(iii) disclosure of information which is required by
applicable law or to a governmental agency having
supervisory or regulatory authority over any party hereto;
(iv) disclosure of information in connection with any
suit, action or proceeding in connection with the
enforcement of rights hereunder or in connection with the
transaction contemplated hereby or thereby;
(v) disclosure to any bank (or other financial
institution) which may acquire a participation or other
interest in the Loans or rights of any Bank hereunder;
provided that such bank (or other financial institution)
agrees to maintain any such information to be received in
accordance with the provisions of this Section 10.15;
(vi) disclosure by any party hereto to any other party
hereto or their counsel or agents;
(vii) disclosure by any party hereto to any entity or to
any subsidiary of such an entity which owns, directly or
indirectly, more than 50% of the voting stock of such party,
or to any affiliate and/or direct or indirect subsidiary of
such party; or
(viii) disclosure of information that prior to such
disclosure has become public knowledge through no violation
of this Agreement.
SECTION 10.16. Judgment Currency. The
specification of payment in Dollars and in New York City,
New York, with respect to amounts payable to any Bank (or
Transferee), any Agent or the FI Trustee hereunder and under
the other Loan Documents is of the essence, and Dollars
shall be the currency of account in all events. The payment
obligations of FI or FCX under this Agreement or any other
Loan Document shall not be discharged by an amount paid 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 FI and FCX in respect of any such sum due from
it to any Agent, the FI Trustee or any Bank (or Transferee)
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 FI and FCX hereby agree,
as a separate obligation and notwithstanding any such
judgment, jointly and severally 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 in Dollars and the
amount of Dollars so purchased and transferred.
SECTION 10.17 RTZ Transaction. The Agents and the
Banks acknowledge that FCX and FI have agreed pursuant to
the Implementation Agreement to enter into the RTZ
Transaction, a summary description of which is set forth in
Schedule VII to the FCX Credit Agreement. The Banks, FCX
and FI each agree, as promptly as possible after the
Restructuring, to begin negotiations to agree on mutually
satisfactory documentation to implement the RTZ Transaction,
including the Participation Agreement, the RTZ Loan
Agreement, the FI Intercreditor Agreement, the Final FI
Trust Agreement, the other Final FI Security Documents and
other documentation to be entered into by FI in connection
with the foregoing, all such agreements to be in form and
substance satisfactory to the Agents and each Bank, to FI
and to PT-RTZ and RTZ Lender. The Final FI Security
Documents shall include the Final Surat Kuasa (power of
attorney) enabling the FI Trustee, inter alia, to appoint an
operator (which, except in circumstances to be agreed upon,
would be PT-RTZ or an affiliate thereof) to replace FI as
operator in certain circumstances. Each of the Agents, the
Banks, FCX and FI acknowledge that the Final FI Trust
Agreement will not terminate prior to termination of the
Participation Agreement.
SECTION 10.18. Fifth Amendment Closing Date. This
Agreement, as amended herein, shall be effective on the
Fifth Amendment Closing Date.
SECTION 10.19. Execution of Composite Agreement.
Pursuant to Section 11 of the Amendment Agreement, FI, FCX
and the Agents, by their execution and delivery of this
execution version of the Composite Agreement, have caused
this Composite Agreement to become the Amended Credit
Agreement as contemplated by the Amendment Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
P.T. FREEPORT INDONESIA COMPANY,
by
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:Treasurer
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Treasurer
Telex: ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
FREEPORT-McMoRan COPPER & GOLD INC.,
by
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:Treasurer
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Treasurer
Telex: ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION (for purposes of
Article VIII only), as FI Trustee,
by
/s/ ▇. ▇. ▇▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Vice President
Addresses for Notices:
First Trust of New York, National
Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
CHEMICAL BANK, individually and as FTX
Collateral Agent and Administrative
Agent,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:Managing Director
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇
Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone:▇▇▇-▇▇▇-▇▇▇▇
Telecopy:▇▇▇-▇▇▇-▇▇▇▇
with copies to:
Agent Bank Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone:▇▇▇-▇▇▇-▇▇▇▇
Telex:353006 ABSCNYK
Telecopy:212-622-0002
THE CHASE MANHATTAN BANK (National
Association), individually and as
Documentary Agent,
by
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇
Name:▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
Two Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇ ▇▇▇▇▇)
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Treasurer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ABN AMRO BANK,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Vice President
by
/s/ H. ▇▇▇▇ ▇▇▇▇▇▇
Name:H. ▇▇▇▇ ▇▇▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
BANK OF TOKYO TRUST COMPANY,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title:Vice President & Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
cc: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Associate Director
DOMESTIC OFFICE AND LIBOR ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
DEUTSCHE BANK, AG, New York and/or
Cayman Islands Branches,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Assistant Vice President
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
THE FUJI BANK, LIMITED, HOUSTON
AGENCY,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:Vice President and Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇ ▇▇▇▇/
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇ ▇▇▇▇/
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
INDUSTRIAL BANK OF JAPAN, LIMITED,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title:Senior Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Joint General Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESSES FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
cc: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
NATIONAL WESTMINSTER BANK PLC,
by
/s/ ▇▇▇ ▇▇▇▇▇▇▇
Name:▇▇▇ ▇▇▇▇▇▇▇
Title:Vice President
NATIONAL WESTMINSTER BANK PLC
(NASSAU BRANCH),
by
/s/ ▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: 212-602-4500
THE BANK OF NOVA SCOTIA,
by
/s/ F. C. H. ▇▇▇▇▇
Name:F. C. H. ▇▇▇▇▇
Title:Senior Manager Loan
Operations
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ARAB BANKING CORPORATION (B.S.C.),
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:First Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Loan Manager
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Loan Manager
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: 212-599-8385
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ Commerce Tower, Suite 1900
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone:▇▇▇-▇▇▇-▇▇▇▇
Telecopy:▇▇▇-▇▇▇-▇▇▇▇
BANQUE PARIBAS,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇▇▇▇▇▇
Title:Vice President
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Group Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Center
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Center
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: 713-659-3832
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Center
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
CHRISTIANIA BANK,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:First Vice President
by
/s/ ▇▇▇▇▇ ▇▇▇▇
Name:▇▇▇▇▇ ▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ Roising
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ Roising
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
THE MITSUI TRUST AND BANKING COMPANY
LTD,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:Senior Vice President &
Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
One World Financial Center, 21st Floor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
One World Financial Center, 21st Floor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
LENDER:WESTDEUTSCHE LANDESBANK
GIROZENTRALE,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President
by
/s/ ▇. ▇▇▇▇▇▇
Name:▇. ▇▇▇▇▇▇
Title:Associate
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: 212-852-6300
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: 212-852-6300
YASUDA TRUST AND BANKING COMPANY,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇
Name:▇▇▇▇ ▇. ▇▇▇▇
Title:First Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇/▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇/5761
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇ - Marquis Two
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. Price ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
P.T. BANK RAKYAT INDONESIA (PERSERO),
by
/s/ Kemas M. Arief
Name:Kemas M. Arief
Title:General Manager
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Deputy General Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
FIRST NATIONAL BANK OF COMMERCE,
by
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇
Name:J. ▇▇▇▇▇ ▇▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. J. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. J. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
NBD BANK,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
N M ROTHSCHILD & SONS LIMITED,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Director
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇▇-▇▇▇-▇▇▇▇
SOCIETE GENERALE, SOUTHWEST AGENCY,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ Center, Suite 4800
Dallas, TX 75201
Attention: Ms. Tequlla English
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Additional Banks:BANK OF AMERICA
ILLINOIS,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
THE MITSUBISHI BANK, LIMITED HOUSTON
AGENCY,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Joint General Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
BANK OF MONTREAL,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Director
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: 212-605-1451
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: 212-605-1451
DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇
Title:Assistant Vice President
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇▇▇▇▇
Title:Assistant Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: 212-574-0129
ADDRESS FOR NOTICES:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: 212-574-0129
THE SANWA BANK, LIMITED, DALLAS
AGENCY,
by
/s/ ▇. ▇. ▇▇▇▇▇▇▇
Name:▇. ▇. ▇▇▇▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ 165
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Mr. Lad Perenyi
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ 165
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Mr. Lad Perenyi
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
SUMITOMO BANK,
by
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Name:▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title:General Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED, CAYMAN ISLANDS BRANCH,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
DAI-ICHI KANGYO BANK, LTD. NEW YORK
BRANCH,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Assistant Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
Attention: Ms. ▇▇▇▇ ▇▇▇▇▇ Neverin
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
NORINCHUKIN BANK,
by
/s/ Kimikazu Noumi
Name:Kimikazu Noumi
Title:General Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
REPUBLIC NATIONAL BANK OF NEW YORK,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
THE ROYAL BANK OF SCOTLAND PLC,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President & Deputy
Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
THE TOKAI BANK, LIMITED,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Senior Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
PT BANK NEGARA INDONESIA (PERSERO),
by
/s/ Dewa Gde. Suthapa
Name:Dewa Gde. Suthapa
Title:General Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
One Exchange Plaza
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. Dewa Gde. Suthapa
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
One Exchange Plaza
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. Dewa Gde. Suthapa
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
BANK AUSTRIA,
by
/s/ ▇. ▇▇▇▇▇▇▇
Name:▇. ▇▇▇▇▇▇▇
Title:Senior Vice President
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇
Name:▇▇▇▇ ▇▇▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
BANQUE NATIONALE DE PARIS,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name:▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
THE DAIWA BANK LIMITED,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇
Name:▇▇▇▇ ▇▇▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
HIBERNIA NATIONAL BANK,
by
/s/ ▇▇▇▇▇ ▇▇▇▇
Name:▇▇▇▇▇ ▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
SAKURA BANK,
by
/s/ ▇▇▇▇▇ ▇▇▇▇
Name:▇▇▇▇▇ ▇▇▇▇
Title:Senior Vice President and
General Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Manager, C&PFII
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Manager, C&PFII
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
UNION BANK OF SWITZERLAND, Houston
Agency,
by
/s/ ▇▇▇ ▇▇▇▇▇
Name:▇▇▇ ▇▇▇▇▇
Title:Vice President
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇
Name:▇▇▇▇▇ ▇▇▇▇▇
Title:Managing Director
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Union Bank of Switzerland, New York
Branch
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Departing Banks:COMMERZBANK
Aktiengesellschaft, Atlanta Agency,
by
/s/ ▇. ▇▇▇▇▇▇
Name:▇. ▇▇▇▇▇▇
Title:Vice President
by
/s/ ▇. ▇▇▇▇
Name:▇. ▇▇▇▇
Title:Assistant Treasurer
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
MELLON BANK,
by
/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Name:▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title:Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇