EXHIBIT 10.3
AGREEMENT to AMEND
and
RESTATE TRUST AGREEMENT
dated as of
October 11, 1996
among
P.T. FREEPORT INDONESIA COMPANY,
FREEPORT-McMoRan COPPER & GOLD INC.,
THE RTZ CORPORATION PLC,
P.T. RTZ-CRA INDONESIA,
RTZ INDONESIAN FINANCE LIMITED,
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
as Trustee,
THE CHASE MANHATTAN BANK (formerly Chemical Bank), as
Administrative Agent, as JAA Security Agent
and as Security Agent,
and
THE CHASE MANHATTAN BANK (as successor to The Chase
Manhattan Bank (National Association)),
as Documentary Agent
and as Depositary
TABLE OF CONTENTS
Section Page
Recitals 2
1. Defined Terms, etc . 7
2. The Closing; The Closing Date; Termination 9
3. Releases and Assignments 9
4. Amendment of the Existing Trust Agreement; Change
of Security Agent for the Bank Security Agreements 12
5. Representations and Warranties 13
6. Conditions to Closing 15
7. Amendment; Waiver 15
8. Counterparts 16
9. Applicable Law 16
10. Expenses 16
11. References; Headings 16
12. Construction 16
13. Submission to Jurisdiction; Waiver of Jury Trial;
Commercial Obligations and ▇▇▇▇▇▇▇▇ ▇▇
▇▇. Survival of Representations and Warranties 17
Exhibit A Amended and Restated Trust Agreement
Exhibit B-1 Intercreditor Agreement
Exhibit B-2 Early Closing Agreement
Exhibit H-3 Side Letter
Exhibit C PT-RTZ COW Assignment
Exhibit D Operator Replacement Agreement
Annex I Surat Kuasa
Exhibit E Fiduciary Assignment of Accounts Receivable
Exhibit F-1 FI Bank Credit Agreement Amendment
Exhibit F-2 CDF Bank Credit Agreement Amendment
Exhibit A Bank Security Agreement
Exhibit B Bank Surat Kuasa
Exhibit C Amended and Restated Fiduciary Transfer
Exhibit D Amended and Restated Fiduciary Power
Exhibit EBank Fiduciary Assignment of Accounts Receivable
Exhibit G Fiduciary Transfer of Joint Account Assets
Exhibit H Power of Attorney to Establish Fiduciary
Transfer of Joint Account Assets
Exhibit I Consent of Minister of Mines
Exhibit J Participation Agreement
Exhibit K RTZ Loan Agreement
AGREEMENT TO AMEND AND RESTATE TRUST AGREEMENT dated as of
October 11, 1996, 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"), THE RTZ CORPORATION
PLC, a public limited company organized under the laws of England
("RTZ"), P.T. RTZ-CRA INDONESIA, a company in formation under the
laws of the Republic of Indonesia ("PT-RTZ"), RTZ INDONESIAN
FINANCE LIMITED, a company organized under the laws of England
and a wholly owned subsidiary of RTZ ("RTZ Lender"), FIRST TRUST
OF NEW YORK, NATIONAL ASSOCIATION, not in its individual capacity
but solely as Trustee under the Trust Agreement referred to
below, THE CHASE MANHATTAN BANK (formerly Chemical Bank)
("Chase"), not in its individual capacity but solely as (i)
Administrative Agent for the Banks under the CDF and FI Credit
Agreement (in such capacity, the "Administrative Agent"), (ii)
security agent for the Banks under the Bank Security Documents
referred to below (in such capacity, the "Security Agent") and
(iii) as security agent with respect to the Joint Account Assets
for RTZ Indonesian Investments Limited, a company organized under
the laws of England ("RTZ-IIL"), and the Banks under the JAA
Fiduciary Transfer and the JAA Fiduciary Power (in such capacity,
the "JAA Security Agent"), and THE CHASE MANHATTAN BANK (as
successor to The Chase Manhattan Bank (National Association)),
not in its individual capacity but solely as (i) depositary under
the Trust Agreement (in such capacity, the "Depositary") and (ii)
Documentary Agent for the Banks under the CDF and the FI Credit
Agreement (in such capacity the "Documentary Agent"; the
Administrative Agent, the Security Agent and the Documentary
Agent being sometimes collectively referred to herein as the
"Bank Agents" and FI, FCX, RTZ, PT-RTZ, RTZ Lender, the Trustee,
the JAA Security Agent, the Depositary and the Bank Agents being
each referred to herein as a "Transaction Party" and,
collectively, as the "Transaction Parties").
Recitals
I. By a letter of intent dated March 7, 1995 from FCX to
RTZ and signed by RTZ as of March 7, 1995 (the "Letter of
Intent"), FCX and RTZ confirmed their mutual intention with
respect to, among other things, the establishment of joint
ventures and certain financing arrangements in connection
therewith, to explore and develop within the Contract Area
covered by the Contract of Work.
II. By an agreement dated as of May 2, 1995 made between
FCX and RTZ (the "Implementation Agreement"), FCX and RTZ
recorded the steps to be taken, subject to the satisfaction or
waiver of conditions, in order to implement the transactions
referred to in the Letter of Intent.
III. Among the steps so recorded in the Implementation
Agreement are:
(a) the execution by FI and PT-RTZ of a participation
agreement substantially in the form set out in
Schedule 1 to the Implementation Agreement,
providing for the participation of PT-RTZ in
certain operations under the Contract of Work on
the terms contained therein, with amendments
agreed between them; and
(b) the execution by FI and RTZ Lender of a loan
agreement substantially in the form set out in
Schedule 2 to the Implementation Agreement,
whereby RTZ Lender will make available to FI a
loan facility in a principal amount of up to
$450,000,000 on the terms contained therein, with
amendments agreed between them.
IV. It is the intention of FCX and RTZ, as reflected and
provided in the Letter of Intent and the Implementation Agreement
and agreements attached as Schedules thereto, that, among other
things:
(a) all rights and interests of PT-RTZ in and under
the participation agreement referred to in clause
(a) of Recital III shall be assigned on an
unencumbered basis, free and clear of all liens,
security interests and other encumbrances
whatsoever; and
(b) FI shall assign to PT-RTZ a partial undivided
interest in the Contract of Work, which interest
shall be assigned on an unencumbered basis, free
and clear of all liens, security interests and
other encumbrances whatsoever; and
(c) the repayment of all advances made pursuant to the
loan agreement referred to in clause (b) of
Recital III shall be secured by a first priority
lien on 100% of FI's share of Incremental
Expansion Cashflow (as defined therein).
V. FI is party to (a) a Credit Agreement dated as of
October 27, 1989 (as amended, the "FI Credit Agreement"), among
FI, FCX, certain banks (the "Banks"), the Administrative Agent,
the Security Agent, the JAA Security Agent, the Trustee and the
Documentary Agent, providing for a $550,000,000 credit facility
for FI, and (b) a $450,000,000 Credit Agreement dated as of June
30, 1995 (as amended, the "CDF"), among FI, FCX, the Banks, the
Administrative Agent, the Security Agent, the JAA Security Agent,
the Trustee and the Documentary Agent, providing for a
$450,000,000 credit facility for FCX and FI.
VI. FI has granted to the Trustee for the benefit of the
Banks a first priority security interest in the Contract of Work
and substantially all its other assets pursuant to (a) a Trust
Agreement dated as of May 15, 1970 (as amended from time to time
and as in effect immediately prior to the Closing the "Existing
Trust Agreement"), among FI, the Trustee and the Depositary and
(b) the other FI Security Documents (as such term is defined in
the Existing Trust Agreement).
VII. In order to effect and permit the transactions referred
to in Recitals I through IV, the following, among other things,
are required:
(a) the release by the Banks of any security interest
that the Banks may now have or hereafter acquire
with respect to the rights and properties granted
or assigned to PT-RTZ pursuant to the
Participation Agreement, including, but not
limited to, (i) Sole Risk Ventures undertaken by
PT-RTZ; (ii) PT-RTZ's interest in Joint
Operations; (iii) PT-RTZ's interest in Joint
Account Assets; (iv) PT-RTZ's interest in
Incremental Expansion Cashflow from Block A, Net
Sales Revenues from Greenfield Projects in Block A
and Net Sales Revenues from Block B; (v) PT-RTZ's
interest under the Restated Trust Agreement in the
Concentrate Sales Agreements; (vi) PT-RTZ's
interest under the Restated Trust Agreement and
the Participation Agreement in Proceeds; and (vii)
PT-RTZ's interest in the Contract of Work (all of
the foregoing referred to as the "PT-RTZ Joint
Venture Interests"), in each such case only to the
extent necessary to grant to and vest in PT-RTZ
the PT-RTZ Joint Venture Interests free and clear
of any lien in favor of the Banks;
(b) the assignment by FI to PT-RTZ of a partial
undivided beneficial interest in the Contract of
Work (the "PT-RTZ COW Interest");
(c) the assignment by FI to RTZ Lender of a first
priority security interest (the "RTZ Lender Lien")
with respect to FI Incremental Expansion Cashflow
(and FI's related rights under the Contract of
Work and Concentrate Sales Agreements) (the "FIEC
Interests");
(d) the subordination by the Banks for the benefit of
RTZ Lender of any security interest that the Banks
may now have or hereafter acquire with respect to
the FIEC Interests until the RTZ Lender Loan is
repaid (the "Bank FIEC Lien"); and
(e) after giving effect to (i) the prior release of
the Banks' security interest in the PT-RTZ Joint
Venture Interests and (ii) the subordination to
the RTZ Lender Lien of the security interest of
the Banks with respect to the FIEC Interests, the
continuance of the security interests granted to
the Trustee for the benefit of the Banks pursuant
to the Existing Trust Agreement, the Restated
Trust Agreement and the other FI Security
Documents, including the Bank Security Documents.
VIII. In order to implement and give effect to various
provisions of the Participation Agreement, in particular the
orderly administration and collection of accounts receivable
arising in connection with the Concentrate Sales Agreements,
PT-RTZ is willing to, among other things, permit the Trustee to
hold in trust, for the benefit of PT-RTZ, the PT-RTZ CSA
Interests (as defined below) assigned by FI to the Trustee upon
the terms and conditions of the Restated Trust Agreement (as
defined below).
IX. In order to perfect the RTZ Lender Lien and to provide
for the orderly administration and collection of accounts
receivable, RTZ Lender is willing to, among other things, permit
the Trustee to hold in trust, as security for the benefit of RTZ
Lender and the Banks, the FIEC Interests.
X. In order to accommodate and take into account all of
the foregoing transactions, FI and the Banks are willing to make
certain amendments to the CDF, the FI Credit Agreement and the FI
Security Documents pursuant to the Bank Credit Agreement
Amendments, including (i) replacement of the Trustee by Chase as
security agent for the Banks under the FI Security Documents (in
the case of FI's interest in Joint Account Assets, by Chase as
JAA Security Agent) respect to all assets and interests of FI
other than the Contract of Work, the Concentrate Sales Agreements
and Proceeds (for which the Trustee will continue to act as
security trustee for the Banks pursuant to the Restated Trust
Agreement) and (ii) transfer of the Banks' security interests in
such other assets from the Existing Trust Agreement to the Bank
Security Agreement, and to give the undertakings contained in
this Agreement.
XI. In order to consummate the transactions referred to in
Recitals I through X, the Transaction Parties are entering into
this Agreement and the other Transaction Documents, effective as
of the Closing, as follows:
(a) FI, FCX, PT-RTZ, RTZ, RTZ Jersey Investments One
Limited, RTZ Jersey Nominees Limited, the Trustee,
the Bank Agents, the Depositary and the JAA
Security Agent are executing and delivering an
early closing agreement in the form of Exhibit B-2
hereto (such early closing agreement, as amended,
modified, supplemented and restated from time to
time, the "Early Closing Agreement");
(b) FI and PT-RTZ, pursuant to the Implementation
Agreement, are executing and delivering a
participation agreement in the form attached as
Exhibit J hereto (such participation agreement, as
amended, modified, supplemented and restated from
time to time, the "Participation Agreement");
(c) FI and RTZ Lender, pursuant to the Implementation
Agreement, are executing and delivering an RTZ
loan agreement in the form of Exhibit K hereto
(such RTZ loan agreement, as amended, modified,
supplemented and restated from time to time, the
"RTZ Loan Agreement");
(d) FI, PT-RTZ, the Depositary and the Trustee are
executing and delivering a Restated Trust
Agreement substantially in the form of Exhibit A
hereto (as amended, modified, supplemented and
restated from time to time, the "Restated Trust
Agreement"), which gives effect to, or as the case
may be is after giving effect to, (i) the release
herein by the Trustee on behalf of the Banks of
the security interest of the Banks in the PT-RTZ
Joint Venture Interests to the extent necessary to
grant to and vest in PT-RTZ the PT-RTZ Joint
Venture Interests, free and clear of such security
interest, (ii) the subordination for the benefit
of RTZ Lender of the security interest of the
Banks with respect to the FIEC Interests, (iii)
the grant by FI to the Trustee for the benefit of
RTZ Lender of the RTZ Lender Lien, (iv) the
assignment by FI to PT-RTZ of the PT-RTZ COW
Interest pursuant to the PT-RTZ COW Assignment,
(v) the absolute assignment by FI to the Trustee
of all FI's right, title and interest in and to
the Contract of Work (after giving effect to the
assignment referred to in clause (iv) above), the
Concentrate Sales Agreements and the Proceeds
(including the undivided beneficial interest in
the Concentrate Sales Agreements and the Proceeds
to be held for the benefit of PT-RTZ ("the PT-RTZ
CSA Interests") to be held in trust on the terms
of the Restated Trust Agreement), and (vi) certain
other arrangements as provided in the Restated
Trust Agreement, including arrangements for (1)
the receipt, allocation and payment of cashflow
resulting from the Contract of Work, the
Concentrate Sales Agreements and the Proceeds, and
(2) the continuance of the security interests
granted by FI to the Trustee for the benefit of
the Banks in all FI's retained right, title and
interest in and to the Contract of Work, the
Concentrate Sales Agreements and the Proceeds (in
the case of the FIEC Interests only, subject and
subordinate to the RTZ Lender Lien on the terms of
the Intercreditor Agreement);
(e) RTZ, PT-RTZ, RTZ Lender and the Bank Agents
(acting on behalf of the Banks) are executing and
delivering an intercreditor agreement
substantially in the form of Exhibit B-1 hereto
(as amended, modified, supplemented and restated
from time to time, the "Intercreditor Agreement"),
which provides for certain intercreditor
arrangements and agreements relating to, among
other things, (i) FI's interests in the Contract
of Work, Concentrate Sales Agreements, Proceeds,
Joint Account Assets and FI Available Assets, (ii)
the RTZ Lender Lien, (iii) the PT-RTZ CSA
Interests, and (iv) the PT-RTZ COW Interest;
(f) FI, RTZ, PT-RTZ, the Bank Agents, the JAA Security
Agent, the Depositary, the Trustee, RTZ Lender and
RTZ-IIL are executing and delivering an agreement
in the form of Exhibit B-3 hereto (as amended,
modified, supplemented and restated from time to
time, the "Side Letter"), which provides for
certain additional intercreditor arrangements and
agreements relating to, among other things, FI's
and PT-RTZ's respective interests in the accounts
receivable in relation to the Concentrate Sales
Agreements and the Proceeds and Joint Account
Assets;
(g) FI and PT-RTZ are executing and delivering an
assignment substantially in the form of Exhibit C
hereto (as amended, modified, supplemented and
restated from time to time, the "PT-RTZ COW
Assignment"), which provides for the assignment to
PT-RTZ of the PT-RTZ COW Interest;
(h) the parties thereto are executing and delivering
the Operator Replacement Agreement, substantially
in the form of Exhibit D hereto (as amended,
modified, supplemented and restated from time to
time, the "Operator Replacement Agreement");
(i) FI and PT-RTZ are executing and delivering a surat
kuasa substantially in the form attached as Annex
I to the Operator Replacement Agreement (as
amended, modified, supplemented and restated from
time to time, the "Surat Kuasa");
(j) for the purposes of providing the Trustee (i) for
the benefit of the Banks (subject to the interest
of RTZ Lender with respect to the FIEC Interests
only) a security interest in FI's accounts
receivable in relation to the Concentrate Sales
Agreements and the Proceeds and (ii) for the
benefit of RTZ-IIL a security interest in PT-RTZ's
interest in accounts receivable in relation to the
Concentrate Sales Agreements and the Proceeds, the
parties thereto are executing and delivering a
Fiduciary Assignment of Accounts Receivable
substantially in the form of Exhibit E hereto (as
amended, modified supplemented and restated from
time to time, the "Fiduciary Assignment of
Accounts Receivable");
(k) FI, the Bank Agents, the JAA Security Agent, the
Trustee and the Banks have executed and delivered
an FI Bank Credit Agreement Amendment
substantially in the form of Exhibit F-1 hereto
and a CDF Bank Credit Agreement Amendment
substantially in the form of Exhibit F-2 hereto
(as such agreements may be amended, modified,
supplemented and restated from time to time,
collectively the "Bank Credit Agreement
Amendments"), and, pursuant thereto the Bank Surat
Kuasa. Bank Fiduciary Assignment of Accounts
Receivable, Amended Fiduciary Transfer, Amended
Fiduciary Power and Bank Security Agreement are
being executed and delivered by the parties
thereto, all such documents to be effective as of
the Closing;
(1) for the purpose of providing the JAA Security
Agent (i) for the benefit of the Banks a security
interest in FI's interest in Joint Account Assets
and (ii) for the benefit of RTZ-IIL a security
interest in PT-RTZ's interest in Joint Account
Assets, the JAA Security Agent, FI and PT-RTZ are
executing and delivering a Fiduciary Transfer of
Joint Account Assets substantially in the form of
Exhibit G hereto (as amended, modified,
supplemented and restated from time to time, the
"JAA Fiduciary Transfer") and a Power of Attorney
to Establish Fiduciary Transfer of Joint Account
Assets substantially in the form of Exhibit H
hereto (as amended, modified, supplemented and
restated from time to time, the "JAA Fiduciary
Power");
(m) The Trustee shall release the PT-RTZ Joint Venture
Interests (as such term is defined in the
Participation Agreement) from the Lien of the FI
Security Documents as in effect prior to the RTZ
Closing Date pursuant to an Indonesian release
document dated the RTZ Closing Date (the "RTZ
Release").
In order to accomplish the arrangements described above and
certain related transactions, the Transaction Parties agree as
follows:
SECTION 1. Defined Terms etc. The terms defined below in
this Section 1 shall for all purposes of this agreement have the
meanings specified below unless the context otherwise requires.
"Amended Fiduciary Power" means the amended and restated
fiduciary power substantially in the form of Exhibit D to the
Bank Credit Agreement Amendments.
"Amended Fiduciary Transfer" means the amended and restated
fiduciary transfer substantially in the form of Exhibit C to the
Bank Credit Agreement Amendments.
"Bank Fiduciary Assignment of Accounts Receivable" means the
fiduciary assignment of accounts receivable substantially in the
form of Exhibit E to the Bank Credit Agreement Amendments.
"Bank Lien" means any lien on any asset of FI or any of its
subsidiaries granted from time to time during the term of this
Agreement to the Trustee pursuant to the Restated Trust Agreement
and the Fiduciary Assignment of Accounts Receivable, to the JAA
Security Agent pursuant to the JAA Fiduciary Power and the JAA
Fiduciary Transfer or to the Security Agent pursuant to the Bank
Security Documents or any other agreement or instrument, in each
case for the benefit of the Banks, as security for the payment of
the FI Indebtedness owing to the Banks.
"Bank Security Agreement" means a security agreement
substantially in the form of Exhibit A to the Bank Credit
Agreement Amendments.
"Bank Security Documents" means the Bank Security Agreement,
the Bank Surat Kuasa, the Bank Fiduciary Assignment of Accounts
Receivable, the Amended Fiduciary Transfer and the Amended
Fiduciary Power.
"Bank Surat Kuasa" means a surat kuasa substantially in the
form of Exhibit B to the Bank Credit Agreement Amendments.
"Governmental Agency" means the Government of the Republic
of Indonesia (including the President and any Minister) and any
material state, provincial or local court or governmental agency,
authority, instrumentality or regulatory body of Indonesia or any
other country.
"Indonesian Notarized Documents" means the PT-RTZ COW
Assignment, the Surat Kuasa, the Fiduciary Assignment of Accounts
Receivable, the Bank Surat Kuasa, the Bank Fiduciary Assignment
of Accounts Receivable, the Amended Fiduciary Transfer, the
Amended Fiduciary Power, the JAA Fiduciary Power, the JAA
Fiduciary Transfer, the RTZ Release and the Side Letter.
"Remedial Action" means (a) any claim, proceeding or action
to foreclose upon, take possession or control of, sell, lease or
otherwise dispose of, or in any other manner realize, take steps
to realize or seek to realize upon, the whole or any part of the
assets, properties or interests of FI and its subsidiaries,
whether pursuant to the UCC, by foreclosure, by setoff, by self-
help repossession, by notification to account debtors, by deed in
lieu of foreclosure, by exercise of power of sale, by judicial
action or otherwise, and (b) any action taken to remove FI as
Operator in accordance with the Participation Agreement, the FI
Credit Documents or the Operator Replacement Agreement.
"Transaction Documents" means this Agreement, the Restated
Trust Agreement, the Participation Agreement, the RTZ Loan
Agreement, the Intercreditor Agreement, the Bank Credit Agreement
Amendments, the PT-RTZ COW Assignment, the Indonesian Notarized
Documents, the Bank Security Agreement, the Early Closing
Agreement (including the related Ratifying Agreement in the form
attached to the Early Closing Agreement as Schedule 1 thereto,
which shall not be executed on the Closing Date referred to in
Section 2(b) below) and the Operator Replacement Agreement.
"Trust Agreement" means, prior to the Closing, the Existing
Trust Agreement and, from and after the Closing, the Restated
Trust Agreement.
Capitalized terms used herein and not otherwise defined
herein (including in Section 1) shall have the meanings assigned
to such terms in, or by reference in, the Restated Trust
Agreement (including certain terms defined therein by reference
to the Participation Agreement).
SECTION 2. The Closing; The Closing Date. (a) The
transactions provided for in Sections 3 and 4 are being
consummated simultaneously at a closing (collectively, the
"Closing") on the Closing Date referred to in Section 2(b) (i> at
the offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇., New York, New York, for
all Transaction Documents other than the Indonesian Notarized
Documentation and the PT-RTZ COW Assignment (the "NY Closing"),
and (ii) at the notary office of ▇▇▇▇▇ ▇▇▇▇ Soetardjo, Jakarta,
Indonesia, for the Indonesian Notarized Documents and the PT-RTZ
COW Assignment (the "Indonesian Closing").
(b) The "Closing Date" shall be the date of execution of
this Agreement. All documentation to be executed and delivered at
the NY Closing shall have been finalized and duly executed prior
to the Closing Date and shall have been held in escrow pending
completion of the Indonesian Closing on the Closing Date (Jakarta
time), whereupon the documents held in escrow for the NY Closing
shall have been released from escrow on the Closing Date (New
York City time) and the Closing thereby deemed fully consummated
in all respects. All transactions constituting the Closing shall
be deemed to have been consummated on the Closing Date and,
except for the sequencing of certain transactions as expressly
provided herein, all such transactions shall be deemed to have
occurred concurrently.
3. Releases and Assignments. (a) Effective upon the
Closing, the Administrative Agent hereby instructs the Trustee
and the Security Agent to release, and they shall be deemed to
have hereby released, any security interest that the Banks may
now have or hereafter acquire with respect to the PT-RTZ Joint
Venture Interests. The release of the Banks' security interests
in the PT-RTZ Joint Venture Interests shall be and become
effective upon the Closing and shall be further evidenced by the
RTZ Release; provided that, without derogation from the
foregoing, to the extent that any of the PT-RTZ Joint Venture
Interests is created or comes into effect in accordance with the
Participation Agreement subsequent to the Closing Date, the Banks
shall at the Closing be deemed to have automatically released any
security interest they may then or thereafter have under the
Restated Trust Agreement or the Bank Security Documents in such
subsequently created or arising PT-RTZ Joint Venture Interests
without the necessity of any further act, document or instrument,
with full force and effect as if the Banks had specifically
released their security interests at such subsequent time. All
FI's right, title and interest in and to the Contract of Work,
the Concentrate Sales Agreements and the Proceeds which is not
assigned to PT-RTZ pursuant to the PT-RTZ COW Assignment or
assigned to the Trustee pursuant to the Restated Trust Agreement
to be held for the benefit of PT-RTZ, as applicable, and all of
FI's other assets and interests heretofore pledged to the Banks
but not constituting PT-RTZ Joint Venture Interests
(collectively, the "FI Retained Interests") shall continue to be
retained by FI subject to the RTZ Lender Lien as to the FIEC
Interests only and the security interests of the Banks. Each of
the Transaction Parties acknowledges and agrees that, subject and
subordinate to the RTZ Lender Lien as to the FIEC Interests only,
the continuity, perfection, priority and validity of the Banks'
security interests in the FI Retained Interests shall not in any
manner be affected, interrupted, waived or released by the Banks'
release of the PT-RTZ Joint Venture Interests, the assignment by
FI to PT-RTZ of the PT-RTZ COW Interest or the assignment by FI
to the Trustee of the PT-RTZ CSA Interests to be held for the
benefit of PT-RTZ.
(b) Effective as of the Closing and the concurrent release
of the Banks' security interests therein pursuant to Section 3(a)
and the RTZ Release, FI hereby assigns, sets over, transfers and
conveys to PT-RTZ the PT-RTZ COW Interest, to have and to hold
the same unto PT-RTZ on the terms, conditions and obligations
contained in the Participation Agreement. PT-RTZ hereby accepts
the assignment of the PT-RTZ COW Interest and covenants and
agrees that it shall, at any such time as PT-RTZ shall become
Operator pursuant to the terms of the Participation Agreement, be
bound by, observe and perform all of the provisions of the
Contract of Work to be observed and performed by the Operator
under the Participation Agreement. Until it is replaced as
Operator in accordance with the Operator Replacement Agreement,
FI shall remain responsible to the Government of the Republic of
Indonesia for the conduct of all operations under the Contract of
Work and for all communications with the Government of the
Republic of Indonesia under the Contract of Work on behalf of
itself and PT-RTZ. In order to effect, confirm and evidence the
assignment of the PT-RTZ COW Interest to PT-RTZ, FI and PT-RTZ
are executing and delivering the PT-RTZ COW Assignment at the
Indonesian Closing. Each of FI and PT-RTZ covenants and agrees
with each other that at the request of the other it will execute
such further documents and do all such further acts as may
reasonably be required for the purpose of vesting the PT-RTZ COW
Interest in PT-RTZ.
(c) Effective as of the Closing, FI hereby assigns, sets
over and transfers to the Trustee the Concentrate Sales
Agreements and the Proceeds to hold in trust for the benefit of
FI (and the Secured Creditors) and PT-RTZ on the terms and
conditions set forth in the Restated Trust Agreement (in the case
of PT-RTZ, to the extent necessary to grant to and vest in PT-RTZ
the PT-RTZ Joint Venture Interests listed in clauses (a)(iv)-(vi)
of Recital VII (collectively, the "PT-RTZ Revenue Interests"));
provided that, without derogation from the foregoing, to the
extent that any PT-RTZ Revenue Interest is created or comes into
effect in accordance with the Participation Agreement subsequent
to the Closing Date, FI shall be deemed to have automatically
assigned, set over, transferred and conveyed to the Trustee to
hold in trust for the benefit of PT-RTZ a further undivided
beneficial interest in the Concentrate Sales Agreements and
Proceeds with respect thereto commensurate with such subsequently
created or arising PT-RTZ Revenue Interest without the necessity
of any further act, document or instrument, with full force and
effect as if FI had assigned, set over, transferred and conveyed
to the Trustee to hold in trust for the benefit of PT-RTZ (and
the Banks had concurrently released their security interest in)
such undivided beneficial interest in the Concentrate Sales
Agreements and Proceeds at such subsequent time and such
undivided beneficial interest shall be deemed to be a PT-RTZ CSA
Interest for all purposes of this Agreement, the Participation
Agreement, the Concentrate Sales Agreements and the Restated
Trust Agreement. Such assignment of the Concentrate Sales
Agreements and the Proceeds to the Trustee pursuant to the
immediately preceding sentence is intended by FI, the Trustee and
the other parties hereto to be not merely a security assignment,
but rather a present and absolute assignment (subject to the
Banks' security interests therein) of the Concentrate Sales
Agreements and the Proceeds. The Trustee and PT-RTZ each hereby
accepts the assignment of the PT-RTZ CSA Interests and covenants
and agrees that it shall, at all times hereafter, be bound by,
observe and perform all of the provisions of the Restated Trust
Agreement insofar as they relate to the PT-RTZ CSA Interests.
Each of FI and PT-RTZ covenants and agrees with each other and
the Trustee that, at the request of the other or of the Trustee,
it will execute such further documents and do all such further
acts as may reasonably be required for the purpose of vesting the
PT-RTZ CSA Interests in the Trustee for the benefit of PT-RTZ
under the Restated Trust Agreement. For the purposes of (i)
granting a security interest for the benefit of the Banks
(subject to the interest of RTZ Lender with respect to FIEC
Interests only) in FI's interest in accounts receivable in
relation to the Concentrate Sales Agreements and the Proceeds
(and not by way of security for the benefit of the Banks over
PT-RTZ's interest therein) and (ii) granting a security interest
for the benefit of RTZ-IIL in PT-RTZ's interest in accounts
receivable in relation to the Concentrate Sales Agreements and
the Proceeds (and not by way of security for the benefit of RTZ
Lender or RTZ-IIL over FI's interest therein) the parties thereto
have executed and delivered the Fiduciary Assignment of Accounts
Receivable at the Closing.
(d) After giving effect to the releases by the Banks
contained in clause (a) of this Section 3 and the assignment by
FI to the Trustee for the benefit of PT-RTZ contained in clause
(c) of this ▇▇▇▇▇▇▇ ▇, ▇▇ hereby assigns, sets over, transfers
and conveys to the Trustee, to be held on the terms and
conditions of the Restated Trust Agreement for the benefit of the
various persons and interests (including FI and the Secured
Creditors) provided therein, FI's entire right, title and
interest in and to the Contract of Work, subject, however, to the
existing first priority perfected security interest therein of
the Banks, which in the case of the FIEC Interests only is itself
subject to the first priority security interests in favor of RTZ
Lender referred to in Section 3(f), such assignment, setting
over, transfer and conveyance being effective as of the Closing.
(e) Each of the Transaction Parties acknowledges and agrees
that the continuity, perfection, priority and validity of the
Banks' security interests in the Concentrate Sales Agreements and
the Proceeds shall not in any manner be affected, interrupted,
waived or released by the present and absolute assignment by FI
of the Concentrate Sales Agreements and the Proceeds to the
Trustee; provided that upon the effectiveness of such absolute
and present assignment of the Concentrate Sales Agreements and
the Proceeds to the Trustee, the Banks shall be deemed without
the necessity of any further action or instrument to have
automatically released their security interests in the PT-RTZ CSA
Interests in order to permit the Trustee to hold the PT-RTZ CSA
Interests for the benefit of PT-RTZ on the terms and conditions
contained in the Restated Trust Agreement.
(f) FI hereby assigns, sets over and transfers to RTZ
Lender on the terms and conditions set forth in the RTZ Loan
Agreement, effective as of the Closing, as security for the RTZ
Loan Indebtedness outstanding from time to time pursuant to the
RTZ Loan Agreement, a first priority security interest in the
FIEC Interests; provided that, without derogation from the
foregoing, to the extent that any FIEC Interest is created or
comes into effect in accordance with the Participation Agreement
subsequent to the Closing, FI shall be deemed to have
automatically assigned, set over, transferred and conveyed to RTZ
Lender a further first priority security interest in such
subsequently created or arising FIEC Interest without the
necessity of any further act, document or instrument, with full
force and effect as if FI had assigned, set over, transferred and
conveyed to RTZ Lender (and the Banks had concurrently
subordinated their security interest pursuant to the
Intercreditor Agreement in) such FIEC Interests at such
subsequent time and such FIEC Interests shall be deemed to be
subject to the RTZ Lender Lien. Each of FI and RTZ Lender
covenants and agrees with each other and the Trustee that, at the
request of the other or of the Trustee, it will execute such
further documents and do all such further acts as may reasonably
be required for the purpose of vesting the RTZ Lender Lien in the
Trustee for the benefit of RTZ Lender under the Restated Trust
Agreement.
(g) Notwithstanding the present and absolute assignment of
interests in the Contract of Work, the Concentrate Sales
Agreements and the Proceeds to the Trustee pursuant to the
Restated Trust Agreement, FI and PT-RTZ and each other party
hereto agree that the Trustee shall not be obligated to perform
or see to the performance or enforce the performance of any
obligations or duties under the Contract of Work or the
Concentrate Sales Agreements and shall not have any liability
whatsoever thereunder.
SECTION 4. Amendment of tag Existing Trust Agreement; Change
of Security Agent for the Bank Security Agreements. (a) Effective
as of the Closing and after giving effect to the releases of
security interests, assignments and transfers on the Closing Date
provided for or described in Section 3, the Existing Trust
Agreement (including the exhibits and schedules thereto) shall be
amended and restated in the form attached hereto as Exhibit A.
The provisions of Section 4.01 of the Existing Trust Agreement
relating to indemnification of the Trustee shall survive the
amendment and restatement of the Existing Trust Agreement. All
security interests granted under the Existing Trust Agreement in
assets or interests of FI (the "Other Security") other than the
Contract of Work, the Concentrate Sales Agreements, the Proceeds
and the FIEC Interests are hereby transferred as of the Closing
to the Bank Security Agreement and each of the Transaction
Parties acknowledges and agrees that the continuity, perfection,
priority and validity of the Banks' security interests in the
Other Security shall not in any manner be affected, interrupted,
waived or released (i) by the transfer of such security interests
from the Existing Trust Agreement to the Bank Security Agreement
or (ii) as a result of Chase (in its capacity as Security Agent
for the Banks under the Bank Security Agreement) becoming the
successor to First Trust of New York, National Association (in
its capacity as Trustee under the Existing Trust Agreement), as
the secured party with respect to the Other Security.
(b) Chase has been appointed by the Banks as of the Closing
as Security Agent for the Banks under the Bank Security
Agreement, the Bank Surat Kuasa and the Bank Fiduciary Assignment
of Accounts Receivable and as successor Security Agent (in
replacement of First Trust of New York, National Association,
acting as Trustee under the Existing Trust Agreement) under the
Amended Fiduciary Transfer and the Amended Fiduciary Power. First
Trust of New York, National Association, has been appointed by
the Banks and RTZ-IIL as of the Closing as Security Agent for the
Banks and RTZ-IIL under the Fiduciary Assignment of Accounts
Receivable with respect to accounts receivable in relation to the
Concentrate Sales Agreements and the Proceeds. Chase has been
appointed by the Banks and RTZ-IIL as of the Closing as JAA
Security Agent for the Banks and RTZ-IIL under the JAA Fiduciary
Transfer and the JAA Fiduciary Power with respect to Joint
Account Assets. First Trust of New York, National Association,
shall continue to be entitled to all the fees, immunities,
indemnities and protections provided to it as Security Agent
under the FI Security Documents, including under the CDF and the
FI Credit Agreement (including without limitation Article VIII
and Section 10.4 thereof) as well as under the FI Security
Documents, for the period up to the Closing Date, including in
respect of any actions taken or omitted to be taken by it while
acting as Security Agent under the FI Security Documents.
SECTION 5. Representations and Warranties. As of the Closing
Date (i) each Transaction Party represents and warrants with
respect to itself only (except for the Bank Agents, who act for
themselves both in their individual capacities and as agents on
behalf of the Banks), (ii) FCX and FI jointly and severally
represent and warrant with respect to FI, (iii) RTZ and PT-RTZ
represent and warrant jointly and severally with respect to
PT-RTZ and (iv) RTZ and RTZ Lender represent and warrant jointly
and severally with respect to RTZ Lender, in each case to each
other Transaction Party as follows:
(a) Qualified, in the case of PT-RTZ, as to its status as a
company in formation, the representations and warranties by such
Transaction Party set forth in each Transaction Document entered
into on the Closing Date are true and correct in all material
respects as if made on and as of the Closing Date. Such
Transaction Party is in compliance with all the terms and
conditions of each Transaction Document to which it is a party
(except, in the case of FI, for satisfaction of the conditions
set forth in Section 6(b) of the CDF), and no default or event of
default has occurred or is continuing with respect to it under
any Transaction Document to which it is a party.
(b) Qualified, in the case of PT-RTZ, as to its status as a
company in formation, such Transaction Party has the corporate
power and authority to enter into and perform this Agreement and
each Transaction Document to which it is a party. Qualified, in
the case of PT-RTZ, as to its status as a company in formation,
the execution, delivery and performance of this Agreement and
each Transaction Document to which it is a party (i) have been
duly authorized by such Transaction Party and each such
Transaction Document constitutes the legal, valid and binding
obligation of such Transaction Party, enforceable against such
Transaction Party in accordance with its terms (subject, as to
the enforcement of remedies against it, to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting
creditors' rights against it generally in connection with its
bankruptcy, reorganization or insolvency or a moratorium or
similar event relating to it), (ii) will not violate (A) the
Certificate of Incorporation, the Certificate of Domestication,
or the Articles of Association, as applicable, or the By-laws of
such Transaction Party or any other of its constituent documents,
(B) any Governmental Rule (as defined in the CDF) binding upon
such Transaction Party (except, in the case of FI, for any
Governmental Rule required to be satisfied in order to satisfy
the conditions set forth in Section 6(b) of the CDF) or (C) any
provision of any indenture, agreement or other instrument to
which such Transaction Party is a party or by which it or any of
its properties or assets are or may be bound, (iii) will not 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 such
indenture, agreement or other instrument referred to in clause
(ii)(C) above and (iv) will not result in the creation or
imposition of any Lien upon the assets of such Transaction Party,
except (i) in the case of FI, the liens of the Restated Trust
Agreement, the Surat Kuasa and the Fiduciary Assignment of
Account Receivables, the Bank Security Documents and the RTZ Loan
Agreement.
(c) The Bank Agents represent and warrant that each Bank
has (i) authorized the Bank Agents, acting on behalf of such Bank
and the other Banks, to enter into and perform the Early Closing
Agreement, the Intercreditor Agreement, the Restated Trust
Agreement, the Side Letter and this Agreement (including the
subordination of the Bank FIEC Lien to the RTZ Lender Lien on the
terms of the Intercreditor Agreement), (ii) authorized the
Trustee to enter into this Agreement, the Restated Trust
Agreement, the Operator Replacement Agreement, the Surat Kuasa,
the Side Letter and the Fiduciary Assignment of Accounts
Receivable, the RTZ Release and the transactions contemplated
thereby and to release all the security interests of the Banks in
the PT-RTZ Joint Venture Interests upon the Closing, pursuant to
this Agreement, in order to permit their unencumbered assignment
to PT-RTZ pursuant to the Participation Agreement, this
Agreement, and the PT-RTZ COW Assignment, (iii) authorized the
Security Agent to enter into and perform the Bank Security
Documents for the benefit of such Bank and the other Banks, (iv)
authorized the JAA Security Agent to enter into and perform the
JAA Fiduciary Transfer, the JAA Fiduciary Power and the Side
Letter for the benefit of the Banks and RTZ-IIL, (v) consented to
RTZ Lender and the Trustee (acting on behalf of RTZ Lender)
taking Remedial Actions against the RTZ Lender Collateral as
provided in the RTZ Loan Agreement and the Restated Trust
Agreement, and (vi) consented to FI entering into and performing
the transactions contemplated by the Transaction Documents to
which it is a party, including the entry into and performance of
the Participation Agreement, the incurrence of the RTZ Loan
Indebtedness and FI's granting the RTZ Lender Lien to RTZ Lender
on the terms of the Restated Trust Agreement; provided, however,
that the foregoing shall not be deemed vis-a-vis any of the
Freeport Entities in any manner to constitute a modification or
waiver of the full and timely performance of any of the
obligations of any of the Freeport Entities under the Amended
Loan Documents in accordance with the terms thereof.
(d) Each of PT-RTZ, RTZ and RTZ Lender acknowledges that it
has received a copy of each of the CDF and the FI Credit
Agreement (including the exhibits thereto) and hereby (i)
consents to FI entering into and performing the Amended Loan
Documents, including the grant by FI of the Bank Lien for the
benefit of the Banks, (ii) acknowledges the restrictions on FI
under Sections 5.3 and 10.17 of each of the CDF and the FI Credit
Agreement with respect to certain dealings with PT-RTZ, RTZ,
RTZ-IIL and RTZ Lender, (iii) consents to the assignment by FI to
the Security Agent of all FI's right, title and interest in and
to the Participation Agreement, the Privatization Agreements and
the RTZ Loan Agreement; provided, however, that none of the
foregoing in this Section 5(d) shall be deemed to waive in any
manner vis-a-vis FI the full and timely performance by FI of the
obligations of FI under the Participation Agreement, the Restated
Trust Agreement or the RTZ Loan Agreement.
(e) FI represents and warrants with respect to itself that
it has authorized the Trustee to enter into this Agreement, the
Restated Trust Agreement, the Operator Replacement Agreement, the
Surat Kuasa, the Side Letter, the RTZ Release and the Fiduciary
Assignment of Accounts Receivable and the transactions
contemplated thereby and that (other than the Banks and the
Trustee) there is no other beneficiary under the Existing Trust
Agreement or other Person whose authorization or consent is
required for the Trustee to enter into the foregoing agreements
and the transactions contemplated thereby.
SECTION 6. Conditions to Closing. The following conditions
precedent have been satisfied prior to or simultaneously with the
execution of this Agreement:
(a) Consent of the Minister of Mines of the Government of
Indonesia, substantially in the form of Exhibit I, has been
obtained and is in full force and effect.
(b) All other consents, approvals and agreements necessary
or advisable in the judgment of each Transaction Party and its
counsel for consummation of the Closing have been obtained and
are in full force and effect and there is not any action, suit,
litigation or other proceeding at law or in equity or by or
before any court of any Governmental Agency pending which, in the
judgment of such Transaction Party or its counsel, is likely to
restrain, prevent or impose materially adverse conditions upon
the Closing or the transactions contemplated by the Transaction
Documents or the full and timely performance by the Transaction
Parties of their obligations under the Transaction Documents.
(c) No judgment, order or decree is outstanding, and no
action has been taken by any Governmental Agency, that, in the
reasonable judgment of a Transaction Party or its counsel, has or
is likely to have the effect of restraining, preventing or
imposing materially adverse conditions upon the transactions
contemplated by the Transaction Documents, or the full and timely
performance by the Transaction Parties of their obligations under
the Transaction Documents.
(d) The Trustee has received opinions to the effect that it
does not have to qualify to do business in Louisiana or Indonesia
by virtue of the Restated Trust Agreement or the activities
contemplated thereby.
(e) Copies of this Agreement which, when taken together,
bear the signatures of all the parties hereto have been received
by each Transaction Party.
(f) The Restated Trust Agreement has been executed by all
the parties thereto (including the Representative (as defined in
the Restated Trust Agreement) under each Financing Annex in
effect on the Closing Date) and is in full force and effect, and
a copy of such executed Restated Trust Agreement has been
delivered to each party thereto.
(g) All other Transaction Documents shall be or have been
executed and delivered by the relevant Transaction Parties and
shall be or are in full force and effect (with all conditions to
their effectiveness duly satisfied or waived).
(h) All UCC filings and other filings and registrations
required to perfect and accomplish the assignments and security
interests contemplated as of the Closing Date under the Restated
Trust Agreement and the Bank Security Documents have been made
and are in full force and effect.
SECTION 7. Amendment; Waiver. This Agreement may not be
amended nor any provision hereof waived except pursuant to a
writing signed by each Transaction Party or as otherwise provided
herein. Any amendment or waiver of the provisions hereof pursuant
to such a writing shall be binding upon each party hereto.
SECTION 8. Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute
but one instrument.
SECTION 9. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 10. Expenses. FI shall pay all out-of-pocket
expenses incurred by the Bank Agents and the JAA Security Agent
in connection with the preparation, review and negotiation of the
Transaction Documents and with the Closing, including, but not
limited to, the reasonable fees and disbursements of Cravath,
Swaine & ▇▇▇▇▇, special counsel for the Bank Agents, and Mochtar,
Karuwin & ▇▇▇▇▇, special Indonesian counsel to the Bank Agents
and the JAA Security Agent. The out-of-pocket expenses incurred
by the Trustee, the Depositary and their counsel in connection
with the preparation, review and negotiation of the Transaction
Documents and the Closing shall be paid by FI and PT-RTZ based on
the allocation thereof provided in the Restated Trust Agreement;
provided that PT-RTZ shall not be responsible for and shall have
no liability for any costs (including, without limitation, notary
fees and taxes) incurred in connection with the notarization of
any Indonesian Notarized Documents which are Bank Security
Documents. Each other Transaction Party shall be responsible for
all its own expenses incurred in connection with the preparation,
review and negotiation of the Transaction Documents and with the
Closing.
SECTION 11. References; Headings. Unless otherwise stated,
Section, Recital, Exhibit and Schedule references made herein are
to Sections, Recitals, Exhibits and Schedules, as the case may
be, of this Agreement. The headings of this Agreement are for
reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 12. Construction. This Agreement shall be deemed
jointly drafted by all the Transaction Parties equally and shall
not be specially construed against any Transaction Party based on
any claim that such Transaction Party or its counsel was the
draftsman of this Agreement.
SECTION 13. Submission to Jurisdiction; Waiver of Jury
Trial; Commercial Obligations and Immunity. Each Transaction
Party hereby submits to the exclusive jurisdiction of the United
States District Court for the Southern District of New York and
of any New York State court sitting in Manhattan for the purposes
of all suits, actions or proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. Each
Transaction Party irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such
suit, action or proceeding brought in such a court has been
brought in an inconvenient forum. EACH TRANSACTION PARTY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. To the extent that any Transaction Party 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 any Transaction Party such an immunity (whether or
not claimed), such Transaction Party hereby irrevocably agrees as
to itself not to claim and hereby irrevocably waives such
immunity.
SECTION 14. Survival of Representations and Warranties. The
provisions of Section 5 of this Agreement shall survive the
consummation of the Closing referred to herein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers or
agents as of the date first above written.
P.T. FREEPORT INDONESIA
COMPANY,
By:________________________________
Name:
Title:
FREEPORT-McMoRan COPPER & GOLD
INC.,
By:________________________________
Name:
Title:
THE RTZ CORPORATION PLC,
By:________________________________
Name:
Title:
P.T. RTZ-CRA INDONESIA,
By:________________________________
Name:
Title:
In anticipation of the completion of formation of P.T. RTZ-CRA
INDONESIA under the laws of the Republic of Indonesia, this
Agreement is also executed by RTZ Jersey Investments One Limited
and RTZ Jersey Nominees Limited, jointly and severally, the
founding shareholders.
RTZ JERSEY INVESTMENTS ONE LIMITED,
By:________________________________
Name:
Title:
RTZ JERSEY NOMINEES LIMITED,
By:________________________________
Name:
Title:
RTZ INDONESIAN FINANCE
LIMITED,
By:________________________________
Name:
Title:
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, not in
its individual capacity, but
solely as Trustee under the
Trust Agreement,
By:________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
(formerly Chemical Bank), not
in its individual capacity,
but solely as Administrative
Agent under the FI Credit
Agreement and the CDF, as
Security Agent under the Bank
Security Documents and as JAA
Security Agent under the JAA
Fiduciary Transfer and the JAA
Fiduciary Power,
By:________________________________
Name:
Title:
THE CHASE MANHATTAN BANK (as
successor to The Chase
Manhattan Bank (National
Association)), not in its
individual capacity, but
solely as Documentary Agent
under the FI Credit Agreement
and the CDF and as Depositary
under the Trust Agreement,
By:________________________________
Name:
Title: