CONFORMED COPY
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
October 19, 2001
among
FREEPORT-MCMORAN COPPER & GOLD INC.
PT FREEPORT INDONESIA
The Lenders Party Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent,
Security Agent,
JAA Security Agent
and
Documentation Agent
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as FI Trustee
___________________________
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Arranger
1
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms 2
SECTION 1.02. Classification of Loans and
Borrowings 54
SECTION 1.03. Terms Generally 55
SECTION 1.04. Accounting Terms; GAAP 55
ARTICLE II
The Credits
SECTION 2.01. Commitments 56
SECTION 2.02. Loans and Borrowings 57
SECTION 2.03. Requests for Borrowings 58
SECTION 2.04. Funding of Borrowings 59
SECTION 2.05. Letters of Credit 60
SECTION 2.06. Interest Elections 66
SECTION 2.07. Termination and Reduction of
Commitments 68
SECTION 2.08. Repayment of Loans 69
SECTION 2.09. Evidence of Debt 70
SECTION 2.10. Prepayment of Loans 70
SECTION 2.11. Fees 77
SECTION 2.12. Interest 78
SECTION 2.13. Alternate Rate of Interest 80
SECTION 2.14. Increased Costs 81
SECTION 2.15. Break Funding Payments 83
SECTION 2.16. Taxes 84
SECTION 2.17. Payments Generally; Pro Rata
Treatment; Sharing of Set-Offs 88
SECTION 2.18. Mitigation Obligations; Replacement
of Lenders 91
SECTION 2.19. Put Agreement 92
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers 92
SECTION 3.02. Authorization; Enforceability 92
SECTION 3.03. Governmental Approvals; No Conflicts 93
SECTION 3.04. Financial Condition; No Material
Adverse Change 93
SECTION 3.05. Properties 94
SECTION 3.06. Litigation and Environmental Matters 94
SECTION 3.07. Compliance with Laws and Agreements 95
SECTION 3.08. Investment and Holding Company Status 95
SECTION 3.09. Taxes 95
SECTION 3.10. ERISA 95
SECTION 3.11. Disclosure 96
SECTION 3.12. Subsidiaries 96
SECTION 3.13. Insurance 96
SECTION 3.14. Labor Matters 96
SECTION 3.15. Security Documents 97
SECTION 3.16. Assigned Agreements 97
SECTION 3.17. Federal Reserve Regulations 98
ARTICLE IV
Conditions
SECTION 4.01. Effective Date 98
SECTION 4.02. Each Credit Event 101
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other
Information 102
SECTION 5.02. Notices of Material Events 106
SECTION 5.03. Information Regarding Collateral 106
SECTION 5.04. Existence; Conduct of Business 107
SECTION 5.05. Payment of Obligations 107
SECTION 5.06. Maintenance of Properties 107
SECTION 5.07. Insurance 107
SECTION 5.08. Casualty and Condemnation 107
SECTION 5.09. Books and Records; Inspection and
Audit Rights 108
SECTION 5.10. Compliance with Laws; Environmental 108
Reports
SECTION 5.11. Use of Proceeds and Letters of Credit 109
SECTION 5.12. Additional Subsidiaries 109
SECTION 5.13 Further Assurances 109
SECTION 5.14. Concentrate Sales Agreements 110
SECTION 5.15. Source of Interest 111
SECTION 5.16. Certain Hedging Arrangements 111
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity
Securities 112
SECTION 6.02. Liens 115
SECTION 6.03. Fundamental Changes 116
SECTION 6.04. Investments, Loans, Advances,
Guarantees and Acquisitions 117
SECTION 6.05 Asset Sales 119
SECTION 6.06. Sale and Leaseback Transactions 121
SECTION 6.07. Hedging Agreements 121
SECTION 6.08. Restricted Payments; Certain Payments
of Indebtedness 121
SECTION 6.09. Transactions with Affiliates 123
SECTION 6.10. Restrictive Agreements 123
SECTION 6.11. Amendment of Material Documents 124
SECTION 6.12. Protection of Contract Rights 125
SECTION 6.13. Block B Projects 125
SECTION 6.14. Fiscal Year 126
SECTION 6.15. Covenants Relating to the RTZ
Transactions 126
SECTION 6.16. Specified Transactions 127
SECTION 6.17. Designation of Unrestricted 127
Subsidiaries
SECTION 6.18. Leverage Ratio 130
SECTION 6.19. Fixed Charge Coverage Ratio 130
SECTION 6.20. Capital Expenditures 130
ARTICLE VII
Events of Default 131
ARTICLE VIIA
Certain Loan Allocation Procedures
SECTION 7.01A. Implementation of Exchange 136
SECTION 7.02A. Letters of Credit 136
ARTICLE VIII
The Agent's and the FI Trustee 139
ARTICLE IX
Guarantee 144
ARTICLE X
Miscellaneous
SECTION 10.01. Notices 147
SECTION 10.02. Waivers; Amendments 148
SECTION 10.03. Expenses; Indemnity; Damage Waiver 150
SECTION 10.04. Successors and Assigns 152
SECTION 10.05. Survival 155
SECTION 10.06. Counterparts; Integration;
Effectiveness 156
SECTION 10.07. Severability 157
SECTION 10.08. Right of Setoff 157
SECTION 10.09. Governing Law; Jurisdiction; Consent
to Service of Process; Sovereign
Immunity 157
SECTION 10.10. WAIVER OF JURY TRIAL 158
SECTION 10.11. Headings 159
SECTION 10.12. Confidentiality 159
SECTION 10.13. Interest Rate Limitation 160
SECTION 10.14. Judgment Currency 160
SECTION 10.15. Joint and Several Obligations 161
SECTION 10.16. RTZ Transactions 161
SECTION 10.17. Waiver Under Existing PTMI Agreement;
Amendment of Put Agreement 162
SCHEDULES:
Schedule 1.01 -- Scheduled Repayments of Long-Term
Indebtedness
Schedule 2.01 -- Commitments
Schedule 3.07 -- Significant Agreements and Commitments
with Governmental Authorities
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 3.16 -- Assigned Agreements
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Borrowers' U.S. Counsel
Exhibit B-2 -- Form of Opinion of Borrowers' Indonesian
Counsel
Exhibit B-3 -- Form of Opinion of Lenders' Indonesian
Counsel
Exhibit C-1 -- Form of FCX Pledge Agreement (Indebtedness)
Exhibit C-2 -- Form of FCX Pledge Agreement (PTFI Shares)_
Exhibit C-3 -- Form of FCX Pledge Agreement (PTII Shares)
Exhibit D -- Form of Perfection Certificate
Exhibit E -- Form of PTMI Collateralized Letter of Credit
Exhibit F-3 -- Form of Fiduciary Transfer Amendment and
Restatement
Exhibit F-4 -- Form of Fiduciary Assignment Amendment and
Restatement
Exhibit F-5 -- Form of Lender Security Agreement Amendment
Exhibit F-6 -- Form of Lender Surat Kuasa Amendment and
Restatement
Exhibit F-7 -- Form of Lender Fiduciary Assignment
Amendment and Restatement
Exhibit F-8 -- Form of JAA Fiduciary Transfer Amendment and
Restatement
Exhibit F-9 -- Form of FI Trust Agreement Financing Annex
Exhibit F-10-- Form of Intercreditor Agreement Creditor
Annexes 3 and 4
Exhibit F-11-- Form of Side Letter Creditor Annexes 3 and 4
Exhibit G -- Form of Surat Kuasa Amendment and
Restatement
Exhibit H -- Form of Subsidiary Guarantee Agreement
Exhibit I --Description of Infrastructure Financings
and Infrastructure Financing Documents
AMENDED AND RESTATED CREDIT
AGREEMENT dated as of October 19, 2001, among
FREEPORT-MCMORAN COPPER & GOLD INC., a
Delaware corporation ("FCX"), PT FREEPORT
INDONESIA, a limited liability company
organized under the laws of the Republic of
Indonesia and domesticated under the laws of
Delaware ("PTFI" and together with FCX, the
"Borrowers"), the Lenders party hereto, U.S.
BANK TRUST NATIONAL ASSOCIATION (f/k/a First
Trust of New York, National Association), a
national banking association (for purposes of
Article VIII only), as trustee for the
Lenders and certain other lenders under the
FI Trust Agreement (as defined below) (in
such capacity, the "FI Trustee"), and THE
CHASE MANHATTAN BANK, a New York banking
corporation ("Chase"), as administrative
agent for the Lenders (in such capacity, the
"Administrative Agent"), as issuing bank (the
"Issuing Bank"), as security agent for the
Lenders (in such capacity, the "Security
Agent") under the Lender Security Documents
(as defined below), and as security agent for
the Lenders and RTZ-IIL (in such capacity,
the "JAA Security Agent") under the JAA
Fiduciary Transfer (as defined below), and as
documentation agent (in such capacity, the
"Documentation Agent"; the Administrative
Agent, the Security Agent, the JAA Security
Agent and the Documentation Agent being
collectively referred to herein as the
"Agents").
The Borrowers have requested that the Lenders
agree to amend and restate the Existing FCX/PTFI Agreement
(such term and each other capitalized term used but not
otherwise defined herein having the meaning assigned to it
in Article I) and the Existing PTFI Agreement in order to
continue or establish the credit facilities provided for
herein under which (a) FCX and PTFI may obtain Tranche B
Revolving Loans in an aggregate principal amount of
$265,000,000, (b) PTFI may obtain Tranche A Revolving Loans
in an aggregate principal amount of up to $320,000,000 and
(c) FCX may obtain on the PTMI Put Date Tranche 1 Term Loans
in an aggregate principal amount of up to $253,370,905.
Certain of such Loans will constitute continuations of
Indebtedness outstanding under the Existing FCX/PTFI
Agreement and the Existing PTFI Agreement, and otherwise
such Loans will be utilized to refinance Indebtedness of FCX
and PTFI, to enable FCX to perform its obligations under the
Put Agreement and this Agreement, to pay fees and expenses
in connection with the foregoing and for working capital and
general corporate purposes of the Borrowers. The Lenders
are willing to continue or establish such credit facilities,
and to amend and restate each of the Existing PTFI Agreement
and the Existing FCX/PTFI Agreement in the form hereof, upon
the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this
Agreement, the following terms have the meanings specified
below:
"ABR", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.
"Additional Infrastructure Assets" means non-
mining assets, other than Block B Assets and PT Kencana
Assets but including the Infrastructure Assets, transferred,
sold, pledged, encumbered or otherwise disposed of by PTFI,
in each case in accordance with the terms of this Agreement,
in connection with one or more Additional Infrastructure
Financings.
"Additional Infrastructure Financing Documents"
means each of the operative documents relating to any
Additional Infrastructure Financing, including asset
purchase agreements, lease agreements, joint venture
agreements, guarantee agreements and participation
agreements, to which FCX, PTFI or any Restricted Subsidiary
is a party.
"Additional Infrastructure Financing" means the
financing by PTFI or a Restricted Subsidiary of Additional
Infrastructure Assets pursuant to the incurrence of
Indebtedness secured by such assets or the incurrence of
Attributable Debt in connection with a sale and leaseback
transaction involving such assets.
"Administrative Agent" means The Chase Manhattan
Bank, in its capacity as administrative agent for the
Lenders hereunder.
"Administrative Questionnaire" means an
Administrative Questionnaire in a form supplied by the
Administrative Agent.
"Affiliate" means, with respect to a specified
Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate
per annum equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and
including the effective date of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, (a) with respect to
any Tranche A Revolving Lender, the percentage of the total
Tranche A Revolving Commitments represented by such Tranche
A Revolving Lender's Tranche A Revolving Commitment, (b)
with respect to any Tranche B Revolving Lender, the
percentage of the total Tranche B Revolving Commitments
represented by such Tranche B Revolving Lender's Tranche B
Revolving Commitment and (c) with respect to any Tranche 1
Term Lender, the percentage of the total Tranche 1 Term Loan
Commitments represented by such Tranche 1 Term Lender's
Tranche 1 Term Loan Commitment. If the Tranche A Revolving
Commitments, the Tranche B Revolving Commitments or Tranche
1 Term Loan Commitments, as the case may be, have terminated
or expired, the Applicable Percentages shall be determined
based upon the relative amounts of each Lender's Loans (and,
if applicable, participations in outstanding Letters of
Credit and unreimbursed LC Disbursements) of such Class.
"Applicable Rate" means, for any day, except as
otherwise set forth below, with respect to (a) any ▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ A Loan or Tranche B Loan, (i) 3.00% per
annum plus the Additional Spread in effect for such day, in
the case of an ABR Loan, or (ii) 4.00% per annum plus the
Additional Spread in effect for such day, in the case of a
Eurodollar Loan and (b) with respect to the commitment fees
payable hereunder, 1.00% per annum; provided that in the
event that the Index Debt shall be upgraded by S&P to B or
higher or by ▇▇▇▇▇'▇ to B2 or higher, the Applicable Rate
will mean a rate per annum equal to (x) in the case of a
Eurodollar Loan, the "Eurodollar Spread" based on such Index
Debt ratings as indicated in the table below plus the
Additional Spread, (y) in the case of an ABR Loan, the "ABR
Spread" based on such Index Debt ratings as indicated in the
table below plus the Additional Spread and (z) in the case
of the commitment fees payable hereunder, the "Commitment
Fee Rate" based on such Index Debt ratings as indicated in
the table below:
Index Debt Eurodollar ABR
Ratings: Spread Spread Commitment
(S&P/▇▇▇▇▇'▇) Fee Rate
Category 1
BBB-/Baa3 or 2.375% 1.375% 0.420%
higher
Category 2
BB+/Ba1 2.500% 1.500% 0.460%
Category 3
BB/Ba2 2.675% 1.675% 0.530%
Category 4
BB-/Ba3 2.750% 1.750% 0.550%
Category 5
B+/B1 3.250% 2.250% 0.730%
Category 6
B/B2 3.500% 2.500% 0.820%
Category 7
B-/B3 or lower 4.000% 3.000% 1.0000%
Each change in the Applicable Rate shall apply to
all Loans that are outstanding at any time 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.
For purposes hereof, (x) the "Additional Spread"
means a rate per annum equal to (i) zero during the one year
period commencing on the most recent Set Date, (ii) 0.125%
during the one year period commencing on the first
anniversary of the most recent Set Date, (iii) 0.250% during
the one year period commencing on the second anniversary of
the most recent Set Date, (iv) 0.375% during the one year
period commencing on the third anniversary of the most
recent Set Date and (v) 0.500% on and after the fourth
anniversary of the most recent Set Date and (y) "Set Date"
means, initially, the Effective Date and thereafter each
date on which the Applicable Rate is decreased pursuant to a
change from the then-current Category upon which the
Applicable Rate is based to a different Category which is
higher (Categories with lower numbers being higher
categories) than any Category on which the Applicable Rate
was based at any time prior to such change.
For purposes of this definition, (i) if neither
S&P nor ▇▇▇▇▇'▇ shall have in effect a rating for Index
Debt, then both such rating agencies will be deemed to have
established ratings for Index Debt in Category 7; (ii) if
only one of S&P and ▇▇▇▇▇'▇ shall have in effect a rating
for Index Debt, the Borrowers and the Lenders will negotiate
in good faith to agree upon another rating agency to be
substituted by an amendment to this Agreement for the rating
agency which shall not have a rating in effect, and pending
the effectiveness of such amendment the Applicable Rate will
be determined by reference to the available rating; (iii) if
the ratings established or deemed to have been established
by S&P and ▇▇▇▇▇'▇ shall fall within different Categories,
the Applicable Rate shall be determined by reference to (x)
if such ratings are adjacent, the higher of such ratings,
and (y) if such ratings are not adjacent, the rating that is
one rating lower than the higher of such ratings; and (iv)
if any rating established or deemed to have been established
by S&P or ▇▇▇▇▇'▇ shall be changed (other than as a result
of a change in the rating system of either S&P or ▇▇▇▇▇'▇),
such change shall be effective as of the date on which such
change is first announced by the rating agency making such
change. If the rating system of either S&P or ▇▇▇▇▇'▇ shall
change prior to the Term Loan Maturity Date, the Borrowers
and the Lenders shall negotiate in good faith to amend the
references to specific ratings in this definition to reflect
such changed rating system.
"Asset Disposition" means (a) any sale, transfer
or other disposition (including pursuant to a sale and
leaseback transaction but excluding any sale and leaseback
transaction giving rise to Attributable Debt incurred under
Section 6.01(a)(iv)) of any property or asset of either
Borrower or any Restricted Subsidiary, other than (i)
dispositions described in clauses (a) and (b) of Section
6.05 and (ii) other dispositions resulting in aggregate Net
Proceeds not exceeding $5,000,000 in any fiscal year of the
Borrowers, (b) any casualty or other insured damage to, or
any taking under power of eminent domain or by condemnation
or similar proceeding of, any property or assets of a
Borrower or any Restricted Subsidiary, but only to the
extent that (i) within 120 days after receipt of the Net
Proceeds therefrom, such Borrower or Restricted Subsidiary
has not commenced repairing, restoring or replacing such
property or asset and (ii) within 365 days after receipt of
the Net Proceeds therefrom, such Net Proceeds have not been
applied in full to repair, restore or replace such property
or asset and (c) any sale or disposition (including to FCX
or any Affiliate of FCX) of the Pledged PTII Shares or the
Pledged PTMI Shares on or after the PTMI Put Date, any
dividend, distribution or advance (including any liquidating
distribution) made by PTII from the proceeds of any sale or
disposition of shares of PTFI owned by PTII after the PTMI
Put Date, and any payment (including as the result of the
exercise of remedies in respect of PTMI Collateral) after
the PTMI Put Date of the PTMI Principal Obligations or of
Interest Shortfall Loans. Notwithstanding the foregoing, if
any PT Kencana Financing or Additional Infrastructure
Financing is effected pursuant to a sale and leaseback
transaction, such transaction shall be deemed to be a Debt
Issuance rather than an Asset Disposition for purposes of
this Agreement.
"Assigned Agreements" means the Contract of Work
and the Concentrate Sales Agreements.
"Assignment and Acceptance" means an assignment
and acceptance entered into by a Lender and an assignee
(with the consent of any party whose consent is required by
Section 10.04), and accepted by the Administrative Agent, in
the form of Exhibit A or any other form approved by the
Administrative Agent.
"Attributable Debt" means, on any date, in respect
of any lease of either Borrower or any Restricted Subsidiary
entered into as part of an Infrastructure Financing or a
sale and leaseback transaction subject to Section 6.06, (i)
if such lease is a Capital Lease Obligation, the capitalized
amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP and
(ii) if such lease is not a Capital Lease Obligation, the
capitalized amount of the remaining lease payments under
such lease that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease Obligation.
"Available Cash Condition" means that (i) the
aggregate amount of Loans, unused Commitments (other than
Tranche 1 Term Loan Commitments relating to Collateralized
PTMI Advances), outstanding Letters of Credit and
unreimbursed LC Disbursements is less than $200,000,000 and
(ii) the Leverage Ratio shall be less than or equal to
3.0:1.0.
"Barclays" means Barclays Bank plc.
"Barclays Creditor" means Barclays and any other
Person that holds loans made pursuant to the Barclays Loan
Agreement.
"Barclays Guarantee" means the Guarantee by PTFI
and the Subsidiary Guarantors of the Barclays Obligations.
"Barclays Obligations" means the obligations of
FCX under the Credit Agreement dated as of December 21,
1999, between Barclays and FCX (the "Barclays Loan
Agreement") to pay up to $20,000,000 of loans, and to pay
interest (including interest accruing during the pendency of
any bankruptcy, insolvency, receivership or similar
proceeding, regardless of whether allowed or allowable in
such proceeding) on such loans, outstanding thereunder and
all other monetary obligations (other than for the payment
of principal or interest) of FCX under the Barclays Loan
Agreement. For purposes of the foregoing, any proceeds of
any Collateral applied to the payment of, or any other
payment or prepayment of, the principal of loans under the
Barclays Loan Agreement shall permanently reduce the maximum
amount of loans under such agreement that may be included in
the Barclays Obligations.
"Block A" means Contract Area Block A, as defined
in the Contract of Work.
"Block A Base Production" means the scheduled
production of FI Product from Block A for any given year as
shown on the Product Schedule appearing as Annex A to the
Participation Agreement, as in effect on the date hereof,
subject however to adjustment from time to time pursuant to
clause 16.4.2 of the Participation Agreement, as in effect
on the date hereof.
"Block A Operations and Assets" means the existing
and future mining, concentration, processing,
transportation, delivery and related operations (and assets
used in connection therewith) in respect of FI Product
obtained or provided from Block A.
"Block B Assets" means assets now owned or
hereafter acquired and utilized in connection with the
development and exploitation of Contract Area Block B (as
defined in the Contract of Work), including with respect to
mining, concentrating, processing, transportation, delivery
and related operations (and assets used in connection
therewith) in respect of FI Product obtained or provided
from Contract Area Block B, but such term shall not in any
event include Block A Operations and Assets.
"Block B Conditions" means, with respect to Block
B Debt or Block B Projects including, but not limited to,
transfers or dispositions of Block B Assets or Liens on
Block B Assets relating thereto, the following conditions:
(X) any such Block B Debt is Non-Recourse Debt to
FI, FCX and the Restricted Subsidiaries except as to
the Block B Assets (and income relating thereto); and
(Y) any Block B Project relating to any such Block
B Assets or Block B Debt shall not (1) make use of any
assets that constitute ore that were originally
extracted from or located in Block A or (2) unless the
Majority Lenders otherwise consent in writing, make any
other use of the Block A Operations and Assets;
provided however that such Lender consent shall not be
required with respect to any such use of Block A
Operations and Assets relating solely to (i) shipping,
(ii) storage or warehouse facilities that are not used
for storage of FI Product, (iii) emergency-related
uses, (iv) the administration or management of Block A
or (v) infrastructure projects involving Block A, which
use, either in cases requiring the consent of the
Majority Lenders or in cases involving clauses (i)
through (v) above, has been approved in writing by the
Administrative Agent as not, in the sole discretion of
the Administrative Agent, impairing or adversely
affecting the FI Collateral and Rights relating to the
Block A Operations and Assets (and in cases requiring
the consent of the Majority Lenders or in cases
involving clauses (i) through (v) above, the
Administrative Agent shall have received an opinion of
counsel to PTFI reasonably satisfactory to the
Administrative Agent to such effect and as to the non-
recourse nature of the Block B Debt); provided further,
that (x) temporary, de minimis usage of Block A
Operations and Assets that would not in any way
adversely affect the development, exploitation or
operations relating to Block A Operations and Assets or
the FI Collateral and Rights and (y) usage of Block A
Operations and Assets that are not, and could not
reasonably be expected to be, required for Block A Base
Production, shall be permitted without the approval of
the Administrative Agent or the Lenders.
Notwithstanding the foregoing, it is understood that
any usage by the Borrowers and any Restricted
Subsidiary of non-mining assets in connection with any
Block B Project shall be permissible without the
consent of the Administrative Agent or the Lenders so
long as such usage would not in any way adversely
affect scheduled Block A Base Production or the FI
Collateral and Rights and so long as such Borrower or
such Restricted Subsidiary has reasonably determined
that such usage is in its best interest.
"Block B Debt" means Debt incurred for the purpose
of developing or exploiting Contract Area Block B or
acquiring or financing Block B Assets.
"Block B Project" means any project or
transaction, including but not limited to any joint venture,
investment, sale, transfer or leasing of assets, sale
leaseback transaction or financing, which involves the
development or exploitation of Contract Area Block B or the
acquisition, financing or disposition of Block B Assets, and
shall include all contracts and agreements relating to any
such project or transaction.
"Board" means the Board of Governors of the
Federal Reserve System of the United States of America.
"Borrower" means FCX and/or PTFI, as applicable.
"Borrowing" means Loans of the same Class and
Type, made, converted or continued on the same date and, in
the case of Eurodollar Loans, as to which a single Interest
Period is in effect.
"Borrowing Request" means a request by the
Borrower for a Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a
Saturday, Sunday or other day on which commercial banks in
New York City are authorized or required by law to remain
closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar
deposits in the London interbank market.
"Capital Expenditures" means, for any period, (a)
the additions to property, plant and equipment and other
capital expenditures of each Borrower and its Restricted
Subsidiaries that are (or would be) set forth in a
consolidated statement of cash flows of such Borrower for
such period prepared in accordance with GAAP and (b) that
portion of principal payments on Capital Lease Obligations
made by the Borrowers and the Restricted Subsidiaries during
such period that are attributable to additions to property,
plant and equipment and that have not otherwise been
reflected on the consolidated statement of cash flows as
capital expenditures.
"Capital Lease Obligations" of any Person means
the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right
to use) real or personal property, or a combination thereof,
which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall
be the capitalized amount thereof determined in accordance
with GAAP.
"Caterpillar" means Caterpillar Financial Services
Corporation.
"Caterpillar Assets" has the meaning assigned to
such term in the definition of "Caterpillar Obligations".
"Caterpillar Documents" means the documentation
governing the Caterpillar Transaction, as in effect on the
Effective Date and as amended from time to time as permitted
by Section 6.16.
"Caterpillar Obligations" means the aggregate
principal amount of borrowings from Caterpillar by FCX
outstanding on the Effective Date and set forth in Schedule
6.01, and the Guarantee thereof by PTFI, such Guarantee to
be secured by certain specified Caterpillar heavy equipment
of PTFI 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").
"Caterpillar Transaction" has the meaning assigned
to such term in the definition of "Caterpillar Obligations".
"Change in Control" means (a) the failure of FCX
to own, either directly or through wholly owned
Subsidiaries, Equity Interests in PTFI representing at least
80% of the aggregate ordinary voting power attributable to
all the issued and outstanding Equity Interests of PTFI; (b)
the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within
the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder
as in effect on the date hereof) of Equity Interests
representing more than 30% of the aggregate ordinary voting
power represented by the issued and outstanding Equity
Interests in FCX; (c) occupation of a majority of the seats
(other than vacant seats) on the board of directors of FCX
by Persons who were not (i) members of the board of
directors of FCX on the Effective Date, (ii) appointed as,
or nominated for election as, directors by a majority of
directors referred to in clause (i) above, or (iii)
nominated or appointed by Rio Tinto plc or any Affiliate
thereof pursuant to the Agreement dated as of May 2, 1995,
by and between Freeport-McMoRan Inc. and FCX, on the one
hand, and Rio Tinto plc (formerly the RTZ Corporation PLC),
Rio Tinto Indonesia Limited (formerly RTZ Indonesia Limited)
and Rio Tinto America, Inc. (formerly RTZ America, Inc.), on
the other hand; or (d) the occurrence of any "Change of
Control" or "Change in Control" as defined in any indenture
or other governing agreement relating to the FCX Convertible
Notes or any other Material Indebtedness of FCX or PTFI.
"Change in Law" means (a) the adoption of any law,
rule or regulation after the date of this Agreement, (b) any
change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance
by any Lender or the Issuing Bank (or, for purposes of
Section 2.13(b), by any lending office of such Lender or by
such Lender's or the Issuing Bank's holding company, if any)
with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made
or issued after the date of this Agreement.
"Class", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are Tranche A Loans, Tranche B
Loans or Tranche 1 Term Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a
Tranche A Revolving Commitment, Tranche B Revolving
Commitment or Tranche 1 Term Commitment and, when used in
reference to any Letter of Credit, refers to whether such
Letter of Credit was issued pursuant to the Tranche A
Revolving Commitments or the Tranche B Revolving
Commitments.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" means any and all "Collateral", as
defined in any applicable Security Document, or any asset or
right in which a Lien is granted in favor of the Security
Agent or the FI Trustee pursuant to any Security Document
(it being understood that the terms of any such Security
Agreement may limit the Obligations secured by certain
Collateral).
"Collateral Agent" means The Chase Manhattan Bank,
in its capacity as collateral agent for the Lenders under
the Security Documents.
"Collateral and Guarantee Requirement" means the
requirement that:
(a) the Administrative Agent shall have received
from each Borrower a counterpart of each Security
Document to which such Borrower is a party duly
executed and delivered on behalf of such Borrower;
(b) the Pledged PTFI Shares, the FCX Pledged PTII
Shares and (on and after the PTMI Put Date) the PTMI
Loan Rights shall have been pledged pursuant to the FCX
Pledge Agreements and the Administrative Agent shall
have received (i) an acknowledgment from the incumbent
directors of PTFI of the pledge by FCX of the Pledged
PTFI Shares and confirmation by such directors that the
pledge of the Pledged PTFI Shares has been duly
recorded in the share register book of PTFI, (ii) an
acknowledgment from the incumbent directors of PTII of
the pledge by FCX of the FCX Pledged PTII Shares and
confirmation by such directors that the pledge of the
FCX Pledged PTII Shares has been duly recorded in the
share register book of PTII and (iii) certificates or
other instruments representing the Pledged PTFI Shares
and the FCX Pledged PTII Shares, together with stock
powers or other instruments of transfer with respect
thereto endorsed in blank;
(c) (i) all Interest Shortfall Loans, (ii) all
Indebtedness of each Borrower and each Restricted
Subsidiary that is owing to either Borrower (including
all Mirror Notes) and (iii) on and after the PTMI Put
Date, all Indebtedness owed by PTMI under the Existing
PTMI Agreement, shall have been pledged pursuant to a
Pledge Agreement and the Administrative Agent shall
have received all promissory notes evidencing any such
pledged indebtedness, together with (x) notification to
the obligors of such indebtedness of such pledge and
(y) instruments of transfer with respect to such
promissory notes endorsed in blank;
(d) all documents and instruments, including
Uniform Commercial Code financing statements and
Indonesian security register filings, required by law
or reasonably requested by the Administrative Agent to
be filed, registered or recorded to create the Liens
intended to be created by the Security Documents and
perfect such Liens to the extent required by, and with
the priority required by, the Security Documents, shall
have been filed, registered or recorded or delivered to
the Administrative Agent for filing, registration or
recording;
(e) each Restricted Subsidiary shall have executed
and delivered to the Administrative Agent a counterpart
of a Subsidiary Guarantee Agreement; and
(f) each Borrower shall have obtained all consents
and approvals required to be obtained by it in
connection with the execution and delivery of all
Security Documents and Security Document Amendments to
which it is a party, the performance of its obligations
thereunder and the granting by it of the Liens
thereunder.
"Collateralized PTMI Advances" means the amount of
PTMI Principal Obligations which are secured by a PTMI
Collateralized Letter of Credit issued in accordance with
Section 2.10(g) or by cash collateral deposited in the PTMI
Cash Collateral Account pursuant to Section 2.10(g)
(including as required by Article VII hereof).
"Commitment" means a Tranche A Revolving
Commitment, Tranche B Revolving Commitment or Tranche 1 Term
Loan Commitment, or any combination thereof (as the context
requires).
"Commitment Letter" means, collectively, the
commitment letters executed by each of the Lenders,
including the exhibits thereto, pursuant to which the
Lenders committed, subject to certain conditions, to execute
and deliver this Agreement.
"Concentrate Sales Agreements" means all contracts
and agreements with respect to the sale or disposition of
ores or minerals produced by the mining, concentrating and
related operations conducted by PTFI pursuant to the
Contract of Work, as such agreements may be amended and in
effect from time to time.
"Confidential Information Materials" means the
confidential information materials dated June 2001 relating
to the Borrowers and the Transactions.
"Consolidated Cash Interest Expense" means, for
any period, the excess of (a) the sum of (i) the interest
expense (including imputed interest expense in respect of
Capital Lease Obligations but excluding the interest expense
arising from the initial six scheduled interest payments on
the Convertible Notes to the extent such amounts are paid
out of, or funds for the payment thereof are held in, the
interest escrow reserve account established at the time of
issuance of the Convertible Notes) of FCX and the Restricted
Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP, (ii) any interest accrued
during such period in respect of Indebtedness of FCX or any
Restricted Subsidiary that is required to be capitalized
rather than included in consolidated interest expense for
such period in accordance with GAAP, plus (iii) any cash
payments made during such period in respect of obligations
referred to in clause (b)(iii) below that were amortized or
accrued in a previous period, minus (b) the sum of (i)
interest income of FCX and the Restricted Subsidiaries for
such period, determined on a consolidated basis in
accordance with GAAP, but excluding the interest income
arising from the Permitted Investments securing the
obligations with respect to the Convertible Notes, (ii) to
the extent included in such consolidated interest expense
for such period, non-cash amounts attributable to
amortization of financing costs paid in a previous
period,(iii) to the extent included in such consolidated
interest expense for such period, non-cash amounts
attributable to amortization of debt discounts or accrued
interest payable in kind for such period, plus (iv) to the
extent included in such consolidated interest expense for
such period, dividends paid in respect of preferred stock
(other than any trust preferred stock).
"Consolidated EBITDA" means, for any period,
Consolidated Net Income for such period plus (a) without
duplication and to the extent deducted in determining such
Consolidated Net Income, the sum of (i) consolidated
interest expense for such period, (ii) consolidated income
tax expense for such period, (iii) all amounts attributable
to depreciation and amortization for such period and (iv)
any extraordinary charges or significant nonrecurring non-
cash charges or non-cash charges resulting from requirements
to ▇▇▇▇-to-market derivative obligations (including
commodity-linked securities) for such period (provided that
any cash payment made with respect to any such non-cash
charge shall be subtracted in computing Consolidated EBITDA
for the period in which such cash payment is made), and
minus (b) without duplication and to the extent included in
determining such Consolidated Net Income, any extraordinary
gains or non-cash gains for such period, all determined on a
consolidated basis in accordance with GAAP.
"Consolidated Fixed Charges" means, for any
period, the sum of (a) Consolidated Cash Interest Expense
for such period, (b) the aggregate amount of scheduled
principal payments made during such period in respect of
Long-Term Indebtedness of FCX and the Restricted
Subsidiaries (other than payments made by FCX or any
Restricted Subsidiary to FCX or a Restricted Subsidiary and
other than (i) payment of $250,000,000 of principal with
respect to the 2026 Senior Notes, (ii) the purchase by FCX
of the PTMI Loan Rights pursuant to the Put Agreement and
this Agreement and (iii) payments attributable to Hedging
Agreements) and (c) the aggregate amount of principal
payments (other than scheduled principal payments) made
during such period in respect of Long-Term Indebtedness of
FCX and the Restricted Subsidiaries (other than payments
attributable to Hedging Agreements), to the extent that such
payments reduced any scheduled principal payments that would
have become due within one year after the date of the
applicable payment.
"Consolidated Net Income" means, for any period,
the net income or loss of FCX and the Restricted
Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP (computed, however, without
deduction for minority interests in the net income or loss
of PTFI); provided that there shall be excluded (a) the
income of any Person (other than FCX and PTFI) in which any
other Person (other than the FCX or any Restricted
Subsidiary or any director holding qualifying shares in
compliance with applicable law) owns an Equity Interest,
except to the extent of the amount of dividends or other
distributions actually paid to FCX or PTFI, as applicable,
or any of the Restricted Subsidiaries during such period,
and (b) the income or loss of any Person accrued prior to
the date it becomes a Restricted Subsidiary or is merged
into or consolidated with FCX or any Restricted Subsidiary
or the date that such Person's assets are acquired by FCX or
any Restricted Subsidiary.
"Contract of Work" means the Contract of Work made
December 30, 1991, between the Ministry of Mines of the
Government of the Republic of Indonesia, acting for and on
behalf of the Government of the Republic of Indonesia, and
PTFI, together with any related Implementation Agreement or
Memorandum of Understanding with such Ministry of Mines
acting on behalf of the Government of the Republic of
Indonesia, after giving effect to the PT-Rio Tinto Indonesia
COW Assignment, 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
ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative
thereto.
"Convertible Notes" means $603,750,000 principal
amount of 8.25% Convertible Senior Notes due 2006 of FCX.
"Debt Issuance" means (a) the incurrence by either
Borrower or any Restricted Subsidiary of any Indebtedness
other than Indebtedness permitted by Section 6.01(a)(i),
(ii), (iii), (iv), (v) or (viii) and other than Indebtedness
incurred and the proceeds of which are used to refinance the
Gold-Denominated Preferred Stock pursuant to a Qualifying
Gold Preferred Restructuring and (b) the consummation of any
Additional Infrastructure Financing and any PT Kencana
Financing, regardless of whether such transaction is
structured as a sale and leaseback transaction.
Notwithstanding any provision to the contrary contained
herein, in the event PT Kencana and/or PT Kencana Wisata is
designated, in accordance with Sections 6.04 and 6.17, as an
Unrestricted Subsidiary in connection with a PT Kencana
Financing, PTFI will be deemed to have received the Net
Proceeds of such PT Kencana Financings as a "Debt Issuance"
(including in respect of any issuance or sale of Equity
Interests in PT Kencana and/or PT Kencana Wisata, any sale
or disposition of PT Kencana Assets or any issuance of
Indebtedness by PT Kencana and/or PT Kencana Wisata in
connection therewith).
"Default" means any event or condition which
constitutes an Event of Default or which upon notice, lapse
of time or both would, unless cured or waived, become an
Event of Default.
"Depositary" means Chase in its capacity as
Depositary under the FI Trust Agreement for the Sales
Proceeds Account and the Special Account.
"Designated Obligations" means, in respect of any
Facility, all Obligations of the Loan Parties in respect of
(a) principal of and interest on the Loans under such
Facility, and (b) commitment fees and Letter of Credit
participation fees in respect of such Facility, in each case
regardless of whether then due and payable. Prior to the
Tranche 1 Drawdown Date, the "Designated Obligations" in
respect of the Tranche 1 Facility will be deemed to include
obligations of PTMI under the Existing PTMI Agreement in
respect of the principal of and interest on the PTMI
Principal Obligations held by each Tranche 1 Lender and any
supplemental interest payable by FCX hereunder in respect of
such PTMI Principal Obligations.
"Disclosed Matters" means the actions, suits and
proceedings and the environmental matters disclosed in the
final Offering Memorandum dated August 1, 2001, for the
Convertible Notes.
"Discretionary Funds" means that portion of the
Net Proceeds of any Debt Issuance or Equity Issuance or,
after the Available Cash Condition has been satisfied, of
Excess Cash Flow in respect of any Semi-Annual Period ending
on or after December 31, 2001, which is not required to be
applied to Reductions of the Facilities; provided, however,
that the Net Proceeds of any Prepayment Event and any
portion of Excess Cash Flow in respect of any Semi-Annual
Period shall constitute Discretionary Funds only to the
extent that they represent the Borrowers' Portion of
aggregate Net Proceeds or Excess Cash Flow in respect of
which the Lenders' Portion has in fact been applied to
Reductions of the Facilities pursuant to Section 2.10(c) or
(d) (and to the extent that, as a result of the condition
set forth in Section 2.10(e), the Lenders Portion of any
such Net Proceeds or Excess Cash Flow is not required to be
and is in fact not applied to Reductions, no portion of such
Net Proceeds or Excess Cash Flow will constitute
Discretionary Funds). For purposes of the foregoing, (x)
the Borrowers' Portion of (i) Net Proceeds of Debt Issuances
shall be 25%, (ii) Net Proceeds of Equity Issuances shall be
50% and (iii) Excess Cash Flow (but only after the Available
Cash Condition is met) shall be 25% and (y) the Lenders'
Portion of any such Net Proceeds or Excess Cash shall be a
percentage equal to 100% minus the applicable Borrowers'
Portion.
"dollars" or "$" refers to lawful money of the
United States of America.
"Eastern Minerals" means PT ▇▇▇▇ Eastern Minerals,
a Indonesian corporation which, on the Effective Date, is a
90% indirectly owned Subsidiary of FCX (with the remaining
10% owned by PTII).
"Effective Date" means the date on which the
conditions specified in Section 4.01 are satisfied (or
waived in accordance with Section 10.02).
"Environmental Laws" means all laws, rules,
regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or
reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or to health
and safety matters.
"Environmental Liability" means any liability,
contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines,
penalties or indemnities), of either Borrower or any
Subsidiary directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is
assumed or imposed with respect to any of the foregoing.
"Equity Interests" means shares of capital stock,
partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or other
equity ownership interests in a Person or any warrants,
options or other rights to acquire such interests.
"Equity Issuance" means the issuance by either
Borrower or any Restricted Subsidiary of any Equity
Interests, or the receipt by either Borrower or any
Restricted Subsidiary of any capital contribution, other
than any such issuance of Equity Interests to, or receipt of
any such capital contribution from, a Borrower or a
Restricted Subsidiary and other than any such issuance of
Equity Interests issued to refinance, and the proceeds of
which are used to refinance, the Gold-Denominated Preferred
Stock in a Qualifying Gold Preferred Restructuring.
"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 either
Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section
302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing
pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by
either Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by either Borrower
or any ERISA Affiliate from the PBGC or a plan administrator
of any notice relating to an intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal
or partial withdrawal from any Plan or Multiemployer Plan;
or (g) the receipt by either Borrower or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from
either Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected
to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
"Eurodollar", when used in reference to any Loan
or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Requirement" means, with
respect to Eurodollar Loans, the aggregate of the maximum
reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal
established by the Board or any other banking authority to
which any Lender is subject for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation.
The Eurodollar Reserve Requirement shall be adjusted
automatically on and as of the effective date of any change
in any reserve percentage.
"Event of Default" has the meaning assigned to
such term in Article VII.
"Excess Cash Flow" means, in respect of any Semi-
Annual Period, the sum, without duplication, of:
(a) the amount of net cash provided by operating
activities that is or would be reflected on a
consolidated statement of cash flows for the Borrowers
and the Restricted Subsidiaries for such Semi-Annual
Period prepared in accordance with GAAP in a manner
consistent with the financial statements referred to in
Section 3.04, adjusted to exclude any amounts
attributable to Prepayment Events (including expenses
deducted in calculating the Net Proceeds of such
Prepayment Events) (as so adjusted, "Adjusted Operating
Cash"); minus
(b) the sum of capital expenditures paid in cash
during such period other than from Non-Flow Funds;
minus
(c) the aggregate amount of Investments permitted
by Section 6.04(g) purchased for cash during such
period other than with Non-Flow Funds; minus
(d) the aggregate amount of Scheduled Debt
Repayments paid in cash during such period other than
from Non-Flow Funds; minus
(e) cash purchases not exceeding an aggregate of
$3,000,000 in any fiscal year of Permitted Investments
that are contributed to the cash reserve fund for
closure and reclamation costs referred to on page 30 of
FCX's 2000 Annual Report to Shareholders (the "Closure
Fund"); plus
(f) the amount of costs and expenses paid in cash
from (or from liquidation of investments in) the
Closure Fund to the extent previously deducted pursuant
to clause (e); minus
(g) the amount of cash payments of dividends on
preferred stock of FCX during such period and the
amount of cash redemptions of preferred stock of FCX
during such period, in each case to the extent
permitted by Section 6.08(a)(v), excluding any such
payments made with Non-Flow Funds (including the
proceeds of any Qualifying Gold Preferred
Restructuring); plus
(h)(i) the amount of proceeds from sales of assets
(other than dispositions described in clauses (a) and
(b) of Section 6.05) not constituting Asset
Dispositions and (ii) the amounts realized from the
sale or disposition of Permitted Investments securing
obligations under the Convertible Notes and applied to
payments of such obligations; minus
(i) minority interests in cash dividends paid by
PTFI during such period other than in respect of
dividends paid from Non-Flow Funds or in connection
with effecting Reductions pursuant to Section 2.10(c)
or (d); plus
(j) the aggregate gross amount of all Borrowings
of Revolving Loans during such period other than Non-
Flow Reborrowings; minus
(k) the aggregate gross amount of all repayments
of Revolving Loans (but not Term Loans) during such
period, other than Non-Flow Paydowns.
"Exchange" means the exchange of the Lenders'
interests provided for in Article VII.
"Exchange Date" means the first date on which (i)
an Event of Default under paragraph (g) or (h) of Article
VII occurs with respect to either Borrower or (ii) the
Revolving Commitments are terminated or the maturity of any
Loans is accelerated pursuant to Article VII.
"Exchange Percentage" means, as to each Lender, a
fraction expressed as a decimal of which (a) the numerator
shall be the sum of (i) the aggregate Designated Obligations
owed to such Lender and (ii) the LC Exposure of such Lender,
in each case immediately prior to the Exchange Date and (b)
the denominator shall be the sum of (i) the aggregate
Designated Obligations owed to all the Lenders and (ii) the
aggregate LC Exposure of all the Lenders, in each case
immediately prior to the Exchange Date.
"Excluded Taxes" means, with respect to the
Administrative Agent, any Lender or any other recipient of
any payment to be made by or on account of any obligation of
either Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction described in
clause (a) above and (c) in the case of a Foreign Lender
(other than an assignee pursuant to a request by either
Borrower under Section 2.18(b)), any withholding tax that
(i) is in effect and would apply to amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a
party to this Agreement (which, in the case of any Foreign
Lender that was a party to an Existing Agreement, shall be
deemed to be the time such Foreign Lender became a party to
such Existing Agreement) (or designates a new lending
office), except to the extent that such Foreign Lender (or
its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to
receive additional amounts from either Borrower with respect
to any withholding tax pursuant to Section 2.16(a), or (ii)
is attributable to such Foreign Lender's failure to comply
with Section 2.16(e).
"Exempted Reductions" has the meaning given to
such term in Section 2.10(e).
"Existing Agreements" means the Existing FCX/PTFI
Agreement, the Existing PTFI Agreement and the Existing PTMI
Agreement.
"Existing FCX/PTFI Agreement" means the Credit
Agreement dated as of June 30, 1995, as amended, among FCX,
PTFI, the banks party thereto, The Chase Manhattan Bank, as
administrative agent, security agent, JAA agent and
documentation agent, and First Trust of New York, National
Association, as FI trustee, providing for a $450,000,000
senior secured revolving loan facility to be made available
to FCX and PTFI.
"Existing PTFI Agreement" means the Credit
Agreement dated as of October 27, 1989, as amended, among
PTFI, the banks party thereto, The Chase Manhattan Bank, as
administrative agent, security agent, JAA agent and
documentation agent, and First Trust of New York, National
Association, as FI trustee, providing for a $550,000,000
senior secured revolving loan facility to be made available
to PTFI.
"Existing PTMI Agreement" means the Credit
Agreement dated March 21, 1997, as amended, among PTMI, the
banks party thereto, The Chase Manhattan Bank, as
administrative agent and as security agent, and Union Bank
of Switzerland, as managing agent, providing for a
$254,000,000 senior secured term loan facility to be made
available to PTMI, which facility is full recourse to FCX
through the Put Agreement and all security agreements,
pledge agreements and other agreements or instruments
executed in connection therewith.
"Existing PTMI Lenders" means the Lenders under
the Existing PTMI Agreement on the Effective Date.
"Exploration Subsidiary" means Eastern Minerals
and any other Subsidiary that is engaged solely in the
business of exploration and does not own any assets
necessary or used in connection with Block A Base
Production.
"Facility" means the Tranche A Facility, the
Tranche B Facility or the Tranche 1 Facility.
"Facility Exposure" means at any time (i) in the
case of the Tranche A Facility, the sum at such time of the
unused Tranche A Revolving Commitments, outstanding Tranche
A Loans, outstanding Tranche A Letters of Credit and
unreimbursed LC Disbursements in respect of Tranche A
Letters of Credit, (ii) in the case of the Tranche B
Facility, the sum at such time of the unused Tranche B
Revolving Commitments, outstanding Tranche B Loans,
outstanding Tranche B Letters of Credit and unreimbursed LC
Disbursements in respect of Tranche B Letters of Credit and
(iii) in the case of the Tranche 1 Facility, the aggregate
amount at such time of the unused Tranche 1 Term Loan
Commitments or, on and after the PTMI Put Date, the
aggregate amount of outstanding Tranche 1 Term Loans minus,
in either case, the aggregate amount, if any, of
Collateralized PTMI Advances at such time.
"FCX Assisted PTMI/FI Sale" means a Qualifying
PTMI/FI Sale Transaction in which the purchaser is not an
Affiliate of the Borrowers (i) which is made for fair market
value and for consideration consisting solely of cash
received upon consummation of such sale, (ii) in respect of
which the entire amount of Net Proceeds are actually applied
to Reductions in the Facilities pursuant to Section 2.10(c),
and without regard to any limitations set forth in Section
2.10(e), and (iii) in respect of which FCX and/or PTFI may,
at its option, provide an unsecured Guarantee in accordance
with the provisions of Section 6.01(a) in favor of any
lenders providing debt financing to the purchaser in an
aggregate amount not in excess of the amount of such cash
consideration.
"FCX Pledge Agreement (Indebtedness)" means the
pledge agreement substantially in the form of Exhibit C-1
pursuant to which FCX grants a perfected first priority
security interest under Indonesian law in (a) all Interest
Shortfall Loans, (b) Indebtedness owing by PTFI or any other
Restricted Subsidiary to FCX, including the Mirror Notes,
and (c) upon the Tranche 1 Drawdown Date, the PTMI Loan
Rights purchased by FCX pursuant to this Agreement and the
Put Agreement, in each case for the ratable benefit of the
holders of the Obligations and the Barclays Obligations.
"FCX Pledge Agreement (PTFI Shares)" means the
pledge agreement substantially in the form of Exhibit C-2
pursuant to which FCX grants a perfected first priority
security interest under Indonesian law in 50.1% (on a fully
diluted basis) of the capital stock of PTFI for the ratable
benefit of the holders of the Obligations and the Barclays
Obligations.
"FCX Pledge Agreement (PTII Shares)" means the
pledge agreement substantially in the form of Exhibit C-3
pursuant to which FCX grants a perfected first priority
security interest under Indonesian law in the FCX Pledged
PTII Shares for the ratable benefit of the holders of the
Obligations and the Barclays Obligations.
"FCX Pledge Agreements" means the FCX Pledge
Agreement (Indebtedness), the FCX Pledge Agreement (PTFI
Shares) and the FCX Pledge Agreement (PTII Shares).
"FCX Pledged PTII Shares" means all shares of the
capital stock of PT Indocopper Investama Corporation owned
by FCX and pledged pursuant to the FCX Pledge Agreement
(PTII Shares). On the Effective Date, the FCX Pledged PTII
Shares represent 49% of the issued and outstanding shares of
PTII.
"Federal Funds Effective Rate" means, for any day,
the weighted average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"FI Annexes Amendments" means the FI Trust
Agreement Financing Annex, the Intercreditor Agreement
Creditor Annexes and the Side Letter Creditor Annexes.
"FI Collateral and Rights" has the meaning
assigned to such term in Section 6.16.
"FI Creditors" means the "FI Creditors", as
defined in the FI Trust Agreement and shall include the
Lenders and the other holders of the Obligations identified
in the FI Trust Agreement Financing Annex.
"FI Intercreditor Agreement" means the
Intercreditor Agreement entered dated as of October 11, 1996
among PT-Rio Tinto Indonesia, RTZIF, and certain secured
creditors of PTFI, including the Administrative Agent, on
behalf of the Lenders under the Existing FCX/PTFI Agreement
and the Existing PTFI Agreement.
"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 PTFI in
Irian Jaya, Indonesia, pursuant to the Contract of Work.
"FI Security Agent" means, U.S. Bank Trust
National Association (f/k/a First Trust of New York,
National Association), or any successor, not in its
individual capacity, but as FI Security Agent for the
Secured Parties under the Fiduciary Assignment and the
Fiduciary Assignment Amendment and Restatement.
"FI Security Documents" means the FI Trust
Agreement, the Operator Replacement Agreement, the Surat
Kuasa, the PTFI Pledge Agreement, the Fiduciary Transfer,
the Fiduciary Assignment, the Lender Security Agreement, the
Lender Surat Kuasa, the Lender Fiduciary Assignment, the JAA
Fiduciary Transfer, all Uniform Commercial Code financing
statements and all Indonesian financing statements or
security filings required to be filed hereunder or under the
FI Security Documents and each other agreement, instrument
or document executed and delivered pursuant to Section 5.12
or 5.13 to secure any of the Obligations.
"FI Security Documents Amendments" means the FI
Trust Agreement Financing Annex, the Surat Kuasa Amendment
and Restatement, the Fiduciary Transfer Amendment and
Restatement, the Fiduciary Assignment Amendment and
Restatement, the Lender Security Agreement Amendment, the
Lender Surat Kuasa Amendment and Restatement, the Lender
Fiduciary Assignment Amendment and Restatement and the JAA
Fiduciary Transfer Amendment and Restatement.
"FI Trust Agreement" means the Restated Trust
Agreement dated as of October 11, 1996, among PTFI, PT-Rio
Tinto Indonesia, the Depositary, the FI Trustee, the
Administrative Agent and the FI Creditors.
"FI Trust Agreement Financing Annex" means a
"Creditor Annex", as defined in the FI Trust Agreement, in
substantially the form of Exhibit F-9 hereto, to be filed
with the FI Trustee for purposes of identifying the holders
of the Obligations as FI Creditors thereunder.
"FI Trustee" means U.S. Bank Trust National
Association (f/k/a First Trust of New York, National
Association), or any successor trustee, as trustee for PTFI,
PT-Rio Tinto Indonesia and the Secured Creditors (including
the Lenders) pursuant to the FI Trust Agreement and, in such
capacity, also as party to the Operator Replacement
Agreement, the Surat Kuasa and the Fiduciary Assignment.
"Fiduciary Assignment" means the Fiduciary
Assignment of Accounts Receivable (Penyerahan Hak Atas
Tagihan) dated October 11, 1996, granted by PTFI and PT-Rio
Tinto Indonesia to the FI Trustee, as amended and restated
by the Fiduciary Assignment Amendment and Restatement.
"Fiduciary Assignment Amendment and Restatement"
means the amendment and restatement of the Fiduciary
Assignment substantially in the form of Exhibit F-4.
"Fiduciary Transfer" means the Second Amended and
Restated Fiduciary Transfer of Assets (Penyerahan ▇▇▇ ▇▇▇▇▇▇
Fidusia) dated October 11, 1996, granted by PTFI to the
Lenders, acting through the Security Agent, as amended and
restated by the Fiduciary Transfer Amendment and Restatement
and any additional or separate Fiduciary Transfer granted by
PTFI to the Lenders, acting through the Security Agent, with
respect to specific or additional assets.
"Fiduciary Transfer Amendment and Restatement"
means the amendment and restatement of the Fiduciary
Transfer substantially in the form of Exhibit F-3.
"FIEC Interests" means PTFI's interest in
Incremental Expansion Cashflow (as such term is defined in
the Participation Agreement) and PTFI's related rights
pursuant to the FI Trust Agreement under the Concentrate
Sales Agreements.
"Financial Covenants" means the covenants set
forth in Sections 6.18 and 6.19.
"Financial Officer" means the chief financial
officer, principal accounting officer, treasurer or
controller of FCX or PTFI, as applicable.
"Foreign Lender" means any Lender that is
organized under the laws of a jurisdiction other than that
in which either Borrower is located. For purposes of this
definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a
single jurisdiction. If a Borrower is located in more than
one jurisdiction, a lender's status as a Foreign Lender
shall be tested separately with respect to each
jurisdiction.
"GAAP" means generally accepted accounting
principles in the United States of America.
"Gold-Denominated Preferred Stock" means the
300,000 shares of FCX's Gold-Denominated Preferred Stock
mandatorily redeemable in August 2003.
"Governmental Authority" means the government of
the United States of America, any other nation or any
political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor")
means any obligation, contingent or otherwise, of the
guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to
advance or supply funds for the purchase of) any security
for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner
of such Indebtedness or other obligation of the payment
thereof, (c) to maintain working capital, equity capital or
any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account
party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary
course of business.
"Hazardous Materials" means all explosive or
radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other hazardous or toxic
substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate
protection agreement, foreign currency exchange agreement,
commodity price protection agreement or other interest or
currency exchange rate or commodity price hedging
arrangement.
"Immaterial Subsidiary" means any Subsidiary with
assets of less than $1,000,000 and revenues of less than
$1,000,000 per annum.
"Indebtedness" of any Person means, without
duplication, (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all
obligations of such Person for the unearned balance of any
payment received under any contract which is outstanding for
more than 120 days, (d) all obligations of such Person under
conditional sale or other title retention agreements
relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred
purchase price of property or services (excluding trade
accounts payable incurred in the ordinary course of business
so long as the same are not more than 60 days overdue or, if
overdue, are being contested in good faith by appropriate
proceedings), (f) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien
on property owned or acquired by such Person, whether or not
the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all
Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an
account party (including reimbursement obligations to the
issuer) in respect of letters of credit and letters of
guaranty, which support or secure Indebtedness, (j) all non-
contingent obligations of such Person as an account party
(including reimbursement obligations to the issuer) in
respect of letters of credit and letters of guaranty not
referred to in clause (i), (k) all obligations under Hedging
Agreements, (l) all obligations in respect of prepaid
production arrangements, prepaid forward sale arrangements
or derivative contracts in respect of which such Person
receives upfront payments in consideration of an obligation
to deliver product or commodities (or make cash payments
based on the value of product or commodities) at a future
time, and (m) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances; provided,
however, that no series of preferred stock of a Borrower or
a Restricted Subsidiary outstanding on the Effective Date
(or securities of substantially the same type (but which do
not mature in whole or part, and are not subject to any
amortization, redemption, repurchase or exchange
requirements prior to January 15, 2006) issued to refinance
such preferred stock) shall in any event be deemed to be
Indebtedness. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of
such Person's ownership interest in or other relationship
with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than
Excluded Taxes and other than Indonesian Taxes.
"Index Debt" means, if the Facilities are then
currently rated by S&P and ▇▇▇▇▇'▇, the Facilities,
otherwise "Index Debt" shall mean the senior unsecured
noncredit-enhanced long-term indebtedness for borrowed money
of FCX.
"Indonesian Taxes" means Taxes 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 imposed upon the net income of,
or any franchise taxes imposed on, the Administrative Agent,
the FI Trustee, any Lender (or permitted assignee or
Participant) or the Issuing Bank 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 PTFI, the FI Security
Documents, the Assigned Agreements or any promissory notes
of PTFI issued hereunder, 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.
"Infrastructure Assets" means the infrastructure
assets utilized by PTFI and owned by various joint ventures
that, on the date hereof, are subject to the Infrastructure
Financings, and any assets hereafter acquired by such joint
ventures which become subject to the Infrastructure
Financings pursuant to the Infrastructure Financing
Documents.
"Infrastructure Financings" means, collectively,
the financing arrangements existing on the date hereof with
respect to certain infrastructure assets utilized by PTFI,
as described in Note 5 to FCX's audited consolidated
financial statements as of and for the year ended December
31, 2000, including asset leasing agreements and guarantees
of bank loans extended to joint ventures that acquired such
infrastructure assets. The aggregate amount of Indebtedness
and Attributable Debt, calculated in accordance with GAAP,
under the Infrastructure Financings on the Effective Date is
$471,300,000. Each Infrastructure Financing, and the
Indebtedness or Attributable Debt relating thereto, is
described in Exhibit I.
"Infrastructure Financing Documents" means each of
the operative documents relating to the Infrastructure
Financings, including asset purchase agreements, lease
agreements, joint venture agreements, guarantee agreements
and participation agreements, to which FCX, PTFI or any
Restricted Subsidiary is a party. The Infrastructure
Financing Documents with respect to each Infrastructure
Financing in effect on the Effective Date are listed in
Exhibit I.
"Intercreditor Agreement Creditor Annexes" means
the Intercreditor Agreement Creditor Annex No. 3 and the
Intercreditor Agreement Creditor Annex No. 4, in each case
substantially in the form of Exhibit F-10.
"Interest Election Request" means a request by
either Borrower to convert or continue a Revolving Borrowing
or Term Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to
any ABR Loan, the last day of each March, June, September
and December and (b) with respect to any Eurodollar Loan,
the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an Interest Period of more than
three months' duration, each day prior to the last day of
such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest
Period.
"Interest Period" means, with respect to any
Eurodollar Borrowing, the period commencing on the date of
such Borrowing and ending on the numerically corresponding
day in the calendar month that is one, two, three or six
months thereafter, as either Borrower may elect; provided,
that (a) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the
next preceding Business Day and (b) any Interest Period that
commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall
end on the last Business Day of the last calendar month of
such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date
of the most recent conversion or continuation of such
Borrowing.
"Interest Shortfall Loans" means the loans made by
FCX to PTMI (on a subordinated basis) to cover any
differences between the interest payments made on the
Existing PTMI Agreement and the dividends received by PTMI
in connection with its ownership interest in PT Indocopper
Investama Corporation.
"Investment" means purchasing, holding or
acquiring (including pursuant to any merger with any Person
that was not a Wholly Owned Subsidiary prior to such merger)
any Equity Interests, evidences of indebtedness or other
securities (including any option, warrant or other right to
acquire any of the foregoing) of, or making or permitting to
exist any capital contribution or loans or advances to,
guaranteeing any obligations of, or making or permitting to
exist any investment in, any other Person, or purchasing or
otherwise acquiring (in one transaction or a series of
transactions) any assets of any Person constituting a
business unit. The amount, as of any date of determination,
of any Investment shall be the original cost of such
Investment (including any Indebtedness of a Person existing
at the time such Person becomes a Subsidiary in connection
with any Investment and any Indebtedness assumed in
connection with any acquisition of assets), plus the cost of
all additions, as of such date, thereto and minus the
amount, as of such date, of any portion of such Investment
repaid to the investor in cash as a repayment of principal
or a return of capital, as the case may be, but without any
other adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such
Investment. In determining the amount of any Investment
involving a transfer of any property other than cash, such
property shall be valued at its fair market value at the
time of such transfer.
"Issuing Bank" means The Chase Manhattan Bank, in
its capacity as the issuer of Letters of Credit hereunder,
and its successors in such capacity as provided in Section
2.05(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates
of the Issuing Bank, in which case the term "Issuing Bank"
shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.
"JAA Fiduciary Transfer" means the Fiduciary
Transfer of Assets (Penyerahan ▇▇▇ ▇▇▇▇▇▇ Fidusia) for Joint
Account Assets dated October 11, 1996, granted by PTFI and
PT-Rio Tinto Indonesia to the JAA Security Agent, as amended
and restated by the JAA Fiduciary Transfer Amendment and
Restatement as set out in deed number 30 dated December 21,
2000, and any additional or separate Fiduciary Transfer
granted by PTFI and PT-Rio Tinto Indonesia to the JAA
Security Agent with respect to the Joint Account Assets.
"JAA Fiduciary Transfer Amendment and Restatement"
means the amendment and restatement of the JAA Fiduciary
Transfer substantially in the form of Exhibit F-8.
"JAA Security Agent" means Chase, not in its
individual capacity, but as JAA Security Agent for the
Lenders and RTZ under the JAA Fiduciary Transfer.
"Joint Account Assets" has the meaning assigned to
such term in the Participation Agreement.
"LC Disbursement" means a payment made by the
Issuing Bank pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a)
the aggregate undrawn amount of all outstanding Letters of
Credit at such time plus (b) the aggregate amount of all LC
Disbursements that have not yet been reimbursed by or on
behalf of the Borrowers at such time. The LC Exposure of
any Revolving Lender at any time shall be its Applicable
Percentage of the total LC Exposure at such time. LC
Exposure may be expressed with respect to either Class of
Revolving Commitments (e.g., "Tranche A LC Exposure").
"LC Reserve Account" shall have the meaning
assigned to such term in Section 7.02A.
"Lender Affiliate" means (a) with respect to any
Lender, (i) an Affiliate of such Lender or (ii) any entity
(whether a corporation, partnership, trust or otherwise)
that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in
the ordinary course of its business and is administered or
managed by a Lender or an Affiliate of such Lender and (b)
with respect to any Lender that is a fund which invests in
bank loans and similar extensions of credit, any other fund
that invests in bank loans and similar extensions of credit
and is managed by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.
"Lender Fiduciary Assignment" means the Second
Amended and Restated Fiduciary Assignment of Accounts
Receivable (the Penyerahan Hak Atas Tagihan) dated October
11, 1996, granted by PTFI to the Lenders, acting through the
Security Agent as amended and restated in deed number 86
dated December 21, 2000, on Confirmation of Assignments of
Accounts Receivable, and any additional or separate
Fiduciary Assignment granted by PTFI to the Lenders, acting
through the Security Agent, with respect to specific or
additional accounts receivable, in each case as further
amended and in effect from time to time.
"Lender Fiduciary Assignment Amendment and
Restatement" means the amendment and restatement of the
Lender Fiduciary Assignment substantially in the form of
Exhibit F-7.
"Lenders" means the Persons listed on Schedule
2.01 and any other Person that shall have become a party
hereto pursuant to an Assignment and Acceptance, other than
any person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"Lender Security Agreement" means the Lender
Security Agreement dated as of October 11, 1996 between PTFI
and the Security Agent as amended and in effect from time to
time.
"Lender Security Agreement Amendment" means the
amendment of the Lender Security Agreement substantially in
the form of Exhibit F-5.
"Lender Security Documents" means the Lender
Security Agreement, the Lender Surat Kuasa, the Fiduciary
Transfer and the Lender Fiduciary Assignment, in each case
as amended by the relevant Lender Security Document
Amendment.
"Lender Security Document Amendments" means each
of the Lender Security Agreement Amendment, the Lender Surat
Kuasa Amendment and Restatement, the Fiduciary Transfer
Amendment and Restatement and the Lender Fiduciary
Assignment Amendment and Restatement.
"Lender Surat Kuasa" means the Surat Kuasa (Power
of Attorney) dated October 11, 1996, granted by PTFI to the
Security Agent and any additional or separate Surat Kuasa
granted by PTFI to the Lenders, acting through the Security
Agent, with respect to the authorization to manage PTFI upon
the occurrence of an Event of Default, in each case as
amended and in effect from time to time.
"Lender Surat Kuasa Amendment and Restatement"
means the amendment and restatement of the Lender Surat
Kuasa substantially in the form of Exhibit F-6.
"Letter of Credit" means any letter of credit
issued pursuant to this Agreement including any PTMI
Collateralized Letter of Credit.
"Leverage Ratio" means, on any date, the ratio of
(a) Total Indebtedness as of such date to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters of
FCX most recently ended on or prior to such date.
"LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on
Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such
Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest
rates applicable to dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office
of the Administrative Agent in immediately available funds
in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of
such Interest Period.
"Lien" means, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, hypothecation,
encumbrance, charge or security interest in, on or of such
asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the
same economic effect as any of the foregoing) relating to
such asset and (c) in the case of securities, any purchase
option, call or similar right of a third party with respect
to such securities.
"Loan Documents" means this Agreement, the
Security Documents and the Security Documents Amendments.
"Loan Parties" means FCX, PTFI, and each
Subsidiary Guarantor.
"Loans" means the loans made by the Lenders to the
Borrowers pursuant to this Agreement.
"Long-Term Indebtedness" means any Indebtedness
that, in accordance with GAAP, constitutes (or, when
incurred, constituted) a long-term liability.
"Major Concentrate Sales Agreement" means any
Concentrate Sales Agreement providing for sales during the
term thereof of at least 75,000 metric tons of concentrate.
"Majority Lenders" means, at any time, Lenders
having Revolving Exposures, Term Loans and unused
Commitments representing at least 51% of the sum of the
total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Material Adverse Effect" means a material adverse
effect on (a) the business, assets, operations, prospects or
condition, financial or otherwise, of either Borrower and
its Restricted Subsidiaries, taken as a whole, including,
without limitation, changes in ratings of debt of either
Borrower that have a material adverse effect on such
prospects, (b) the ability of any Loan Party to perform any
of its obligations under any Loan Document or (c) the rights
of or benefits available to the Lenders under any Loan
Document.
"Material Indebtedness" means Indebtedness (other
than the Loans), or obligations in respect of one or more
Hedging Agreements, of either or both of the Borrowers
and/or any Restricted Subsidiary in an aggregate principal
amount exceeding $10,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the
obligations of either Borrower or any Restricted Subsidiary
in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting
agreements) that such Borrower or such Restricted Subsidiary
would be required to pay if such Hedging Agreement were
terminated at such time.
"Maturity Date" means December 31, 2005.
"Memorandum of Understanding" means the Memorandum
of Understanding dated as of December 27, 1991, between the
Ministry of Mines and Energy of the Government of the
Republic of Indonesia, and PTFI as amended, modified or
supplemented as permitted hereby from time to time.
"Mirror Notes" means the promissory notes or other
repayment obligations at any time issued by PTFI to FCX
(whether before, on or after the Effective Date) in
consideration for loans or advances made by FCX to PTFI with
any Net Proceeds from Debt Issuances or Equity Issuances of
FCX (collectively, "Mirror Note Securities") (including,
without limitation, in respect of the Convertible Notes, the
Gold Denominated Preferred Stock, the Gold Denominated
Preferred Stock, Series II, the Silver Denominated Preferred
Stock, the 2026 Senior Notes and the 7.50% Senior Notes Due
2006), payments in respect of which are generally
anticipated to provide FCX with a portion of the funds
required to make payments, when due, of interest, dividends,
principal or redemption amounts in respect of such Mirror
Note Securities.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event
(a) the cash proceeds received in respect of such event
including (i) any cash received in respect of any non-cash
proceeds, but only as and when received, (ii) in the case of
a casualty, insurance proceeds, and (iii) in the case of a
condemnation or similar event, condemnation awards and
similar payments, net of (b) the sum of (i) all reasonable
fees and out-of-pocket expenses paid by either Borrower or
any Restricted Subsidiary to Third Parties (other than
Affiliates) in connection with such event, (ii) in the case
of a sale, transfer or other disposition of an asset
(including pursuant to a sale and leaseback transaction or a
casualty or a condemnation or similar proceeding), the
amount of all payments required to be made by either
Borrower or any Restricted Subsidiary as a result of such
event to repay Indebtedness (other than Loans) secured by
such asset or otherwise subject to mandatory prepayment as a
result of such event, and (iii) the amount of all taxes paid
(or reasonably estimated to be payable) by the Borrowers and
the Restricted Subsidiaries, and the amount of any reserves
established by the Borrower and the Restricted Subsidiaries
to fund contingent liabilities reasonably estimated to be
payable, in each case during the year that such event
occurred or the next succeeding year and that are directly
attributable to such event (as determined reasonably and in
good faith by the chief financial officer of the applicable
Borrower).
"Non-Flow Funds" means funds expended during any
Semi-Annual Period by the Borrowers or the Restricted
Subsidiaries which constitute or are derived from (i) the
proceeds from Debt Issuances, Equity Issuances and Asset
Dispositions, (ii) Discretionary Funds attributable to
Excess Cash Flow in respect of prior Semi-Annual Periods,
(iii) the proceeds from issuances of Indebtedness or Equity
Interests not constituting Debt Issuances or Equity
Issuances, (iv) the proceeds from sales of assets (other
than dispositions described in clauses (a) and (b) of
Section 6.05) not constituting Asset Dispositions or (v) the
proceeds of any Non-Flow Reborrowings.
"Non-Flow Paydown" means an optional prepayment of
Revolving Borrowings with Non-Flow Funds of the type
referred to in clause (i), (ii), (iii) or (iv) of the
definition of Non-Flow Funds which funds are not required to
be applied to Reductions pursuant to Section 2.10(c) or (d),
provided that such prepayment has been designated as a Non-
Flow Paydown in accordance with Section 2.10(k) or, in the
case of a Non-Flow Paydown with Excess Cash Flow, Section
5.01(c).
"Non-Flow Reborrowing" means a Revolving Borrowing
which is designated by a Borrower as a Non-Flow Reborrowing
pursuant to Section 2.03(b) and the amount of which does not
exceed (i) the aggregate amount of all previous Non-Flow
Paydowns minus (ii) the aggregate amount of all previous Non-
Flow Reborrowings.
"Non-Recourse Indebtedness" means, with respect to
any Person and its assets, Indebtedness the obligees of
which will not have, directly or indirectly, recourse
(including by way of any Guarantee or other undertaking,
agreement or instrument that would constitute Indebtedness)
for repayment of the principal, premium (if any), and
interest on such Indebtedness or any fees, indemnities,
expense reimbursements or other amounts of whatever nature
accrued or payable in connection with such Indebtedness
against any assets of such Person other than pursuant to any
pledge of specified assets of such Person.
"Obligations" means the obligations of each of FCX
and PTFI hereunder, under the other Loan Documents and, in
the case of FCX, under the Put Agreement, including, without
limitation, (a) the due and punctual payment by FCX and
PTFI, as the case may be, of (i) the principal of and
interest (including interest accruing during the pendency of
any bankruptcy, insolvency, receivership or similar
proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans, (ii) each payment required to
be made under this Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon, and any
obligation to provide cash collateral, (b) the obligations
of FCX and/or PTFI hereunder (including under Section 2.19
and Article VII) and under the Put Agreement to purchase the
PTMI Loan Rights and provide PTMI Collateralized Letters of
Credit or cash collateral for the benefit of the Tranche 1
Lenders, (c) the Guarantee obligations of FCX and of PTFI
under Article IX hereof, (d) all other monetary obligations
of the Borrowers under this Agreement or any other Loan
Document, including in respect of fees, costs, expenses and
indemnities (including any monetary obligations incurred
during the pendency of any bankruptcy, insolvency,
receivership or similar proceeding, regardless of whether
allowed or allowable in such proceeding), (e) the due and
punctual payment of all obligations of FCX or PTFI, as the
case may be, under each Hedging Agreement (i) entered into
prior to the date hereof with a counterparty that is a
Lender or a Lender Affiliate on the date hereof or (ii)
entered into on or after the date hereof with a counterparty
that is a Lender or a Lender Affiliate at the time such
Hedging Agreement is entered into and (f) all obligations
owed from time to time by FCX or PTFI to The Chase Manhattan
Bank or its Affiliates in respect of cash management
services, including obligations in respect of overdrafts,
temporary advances, interest and fees.
"Operating Lease" means any lease other than a
lease which gives rise to a Capital Lease Obligation.
"Operator Replacement Agreement" means the
Operator Replacement Agreement dated as of October 11, 1996
among PTFI, PT-Rio Tinto Indonesia, the Trustee and the
Administrative Agent (in its capacity as Operator Selection
Representative).
"Operator Selection Representative" means the
Administrative Agent acting as the Operator Selection
Representative under the Operator Replacement Agreement,
pursuant to its designation in Section 10.15 as Operator
Selection Representative.
"Other Taxes" means any and all present or future
recording, stamp, documentary, excise, transfer, sales,
property or similar taxes, charges or levies arising from
any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with
respect to, any Loan Document.
"Participation Agreement" means the Participation
Agreement dated October 11, 1996 between PTFI and PT-Rio
Tinto Indonesia.
"Perfection Certificate" means the perfection
certificates executed by each Borrower substantially in the
form of Exhibit D.
"PBGC" means the Pension Benefit Guaranty
Corporation referred to and defined in ERISA and any
successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not
yet due or are being contested in compliance with
Section 5.05;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed
by law, arising in the ordinary course of business and
securing obligations that are not overdue by more than
30 days or are being contested in compliance with
Section 5.05;
(c) Liens arising in the ordinary course of
business in connection with workers' compensation,
unemployment insurance and other social security laws
or regulations, and progress payments under government
contacts and other Liens incident to the ordinary
conduct of any Borrower's or its Restricted
Subsidiary's business or the ordinary operation of
property or assets and not securing any Indebtedness or
Guarantee;
(d) deposits to secure the performance of bids,
trade contracts, leases, statutory obligations, and
Liens in connection with surety and appeal bonds,
performance bonds and other obligations of a like
nature, in each case in the ordinary course of
business;
(e) judgment liens in respect of judgments that do
not constitute an Event of Default under clause (k) of
Article VII;
(f) rights of lessors under leases of property
leased by a Borrower or a Restricted Subsidiary under
Operating Leases entered into in the ordinary course of
business, which rights are limited to the property so
leased; and
(g) easements, zoning restrictions, rights-of-way
and similar encumbrances on real property imposed by
law or arising in the ordinary course of business that
do not secure any monetary obligations and do not
materially detract from the value of the affected
property or interfere with the ordinary conduct of
business of either Borrower or any Restricted
Subsidiary;
provided that the term "Permitted Encumbrances" shall not
include any Lien securing Indebtedness or Attributable Debt.
"Permitted FCX Indebtedness" means unsecured
(other than in respect of any Permitted Interest Escrow)
Indebtedness of FCX which is not Guaranteed by any
Restricted Subsidiary (other than, in the case of the
Convertible Notes, FCX Investment Ltd.), which does not
mature and is not subject to any amortization or mandatory
prepayment or repurchase requirements (other than customary
and usual put rights or repurchase obligations arising as a
result of a Change in Control and customary and usual
obligations requiring repurchase with the proceeds of asset
sales after application of such proceeds to prepayment of
the Facilities pursuant to Section 2.10) until after the
Maturity Date, and which is not convertible into or
exchangeable for any Equity Interests, other than common
stock of FCX, or any other Indebtedness, other than
Permitted FCX Indebtedness.
"Permitted Interest Escrow" means, with respect to
any Indebtedness permitted by Section 6.01(a)(ix) or (x), an
amount not to exceed the sum of the regularly scheduled
interest payments due during the initial three years after
issuance of such Indebtedness, which amount shall have been
placed in an interest reserve escrow account in connection
with the issuance of, and to secure the obligations under,
such Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are
backed by the full faith and credit of the United
States of America), in each case maturing within one
year from the date of acquisition thereof;
(b) Investments in commercial paper maturing
within 270 days from the date of acquisition thereof
and having, at such date of acquisition, the highest
credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit,
banker's acceptances and time deposits maturing within
180 days from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit
accounts which has a short-term deposit rating issued
by Moody's of P-1;
(d) overnight repurchase agreements relating to
securities described in clause (a), (b) or (c) above;
and
(e) Investments in readily marketable money market
funds registered under the Investment Company Act of
1940 which hold only securities described in clause
(a), (b), (c) or (d) above.
"Permitted Secured Hedge" means any Hedging
Agreement between PTFI or FCX and any Lender (or Affiliate
of a Lender) that is ratably secured pursuant to (i) the FCX
Pledge Agreements, in the case of Hedging Agreements with
FCX, or (ii) the FI Security Documents, in the case of
Hedging Agreements with PTFI.
"Person" means any natural person, corporation,
limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or
other entity.
"Plan" means any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions
of Title IV of ERISA or Section 412 of the Code or Section
302 of ERISA, and in respect of which the Borrower or any
ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer"
as defined in Section 3(5) of ERISA.
"Pledge Agreements" means the FCX Pledge
Agreements and the PTFI Pledge Agreement.
"Pledged PTFI Shares" means all shares of the
capital stock of PTFI owned by FCX and pledged pursuant to
the FCX Pledge Agreement (PTFI Shares). On the Effective
Date, the Pledged PTFI Shares represents 50.1% of the issued
and outstanding shares of PTFI.
"Pledged PTMI Shares" means the shares of capital
stock of PTMI, constituting 100% of the outstanding capital
stock of PTMI, pledged by PT Nusantara Ampera Bakti and PT
Mapindo Parama under the PTMI Collateral Documents as
security for obligations of PTMI under the Existing PTMI
Agreement.
"Pledged PTII Shares" means all shares of the
capital stock of PTII pledged by PTMI under the PTMI
Collateral Documents as security for the obligations of PTMI
under the Existing PTMI Agreement. On the Effective Date,
the Pledged PTII shares represent 50.5% of the issued and
outstanding shares of PTII.
"Prepayment Event" means (a) any Asset
Disposition, (b) any Equity Issuance and (c) any Debt
Issuance.
"Prime Rate" means the rate of interest per annum
publicly announced from time to time by The Chase Manhattan
Bank as its prime rate in effect at its principal office in
New York City; each change in the Prime Rate shall be
effective from and including the date such change is
publicly announced as being effective.
"Protected Commitment Amount" has the meaning
given to such term in Section 2.10(e).
"PTFI Pledge Agreement" means the Lender Fiduciary
Assignment, as amended by the Lender Fiduciary Assignment
Amendment and Restatement.
"PTII" means PT Indocopper Investama Tbk, a
corporation organized under the laws of Indonesia.
"PT Kencana" means PT Kencana Infra Nusakarya, a
corporation organized under the laws of Indonesia (formerly
known as P.T. ALatieF Freeport Infrastructure Corporation),
which, on the Effective Date, is a Wholly Owned Subsidiary
of PTFI, held indirectly in part through PT Mitradaya
Vulkanisindo and PT Freeport Finance Indonesia.
"PT Kencana Assets" means the non-mining
infrastructure assets that were formerly subject to the
Joint Venture Agreement dated as of March 11, 1993, between
PTFI and P.T. ALatieF Nusakarya Corporation and which are
currently owned by PT Kencana and PT Kencana Wisata, each a
Restricted Subsidiary of PTFI. On the Effective Date the
aggregate book value of the PT Kencana Assets is not in
excess of $270,000,000.
"PT Kencana Financing" means the financing by PTFI
or a Restricted Subsidiary of the PT Kencana Assets pursuant
to the incurrence of Indebtedness secured by such assets or
the incurrence of Attributable Debt in connection with a
sale and leaseback transaction involving such assets and or
the sale or issuance of Equity Interests in PT Kencana, PT
Kencana Wisata or any other Subsidiary which owns PT Kencana
Assets.
"PT Kencana Wisata" means PT Kencana Wisata
Nusakarya, a corporation organized under the laws of
Indonesia, which, on the Effective Date, is a 99% owned
Subsidiary of PTFI (with the remaining 1% owned by FCX).
"PT Kencana Financing Documents" means each of the
operative documents relating to any PT Kencana Financing,
including asset purchase agreements, lease agreements, joint
venture agreements, guarantee agreements and participation
agreements, to which FCX, PTFI or any Restricted Subsidiary
is a party.
"PTMI" means PT Nusamba Mineral Industri, a
limited liability company organized under the laws of the
Republic of Indonesia.
"PTMI Cash Collateral Account" means the cash
collateral account established with the Administrative Agent
pursuant to Section 2.10(g).
"PTMI Collateral" means the collateral securing
the obligations of PTMI under the Existing PTMI Agreement,
including the Pledged PTII Shares, the Pledged PTMI Shares
and the rights to funds in the Pass-Through Account and the
Dividend Reserve Account (as such terms are defined in the
Existing PTMI Agreement).
"PTMI Collateral Documents" means the Share Pledge
Agreements and the Pledge of Account, as such terms are
defined in the Existing PTMI Agreement, pursuant to which
the PTMI Collateral is pledged to secure the obligations of
PTMI under the Existing PTMI Agreement.
"PTMI Collateralized Letters of Credit" means
letters of credit issued pursuant to Section 2.10(g).
"PTMI Loan Rights" means the principal of and
accrued interest on each of the loans under the Existing
PTMI Agreement, any promissory note relating thereto, and
each other obligation owed to, or right or benefit of, the
"Secured Parties" under the "Loan Documents" (as such terms
are defined in the Put Agreement), including, to the extent
capable of being pledged under applicable law, the rights
and benefits relating to any collateral securing obligations
of the borrower under the Existing PTMI Agreement.
"PTMI Obligations Amount" means, on any date, the
price at which FCX would be obligated to purchase the
Pledged PTII Shares and/or the Pledged PTMI Shares or the
Indebtedness and other obligations owed to the lenders under
the Existing PTMI Agreement under the terms of the Put
Agreement, which price will be equal to the aggregate amount
of the outstanding principal, interest and other amounts
then owed by PTMI under the Existing PTMI Agreement.
"PTMI Principal Obligations" means, on any date,
the aggregate principal amount of outstanding loans under
the Existing PTMI Agreement.
"PTMI Put Date" means the date, on or after the
occurrence of a Put Event, on which FCX is required to
purchase the PTMI Loan Rights pursuant to this Agreement or
the Put Agreement.
"PTMI Security Agent" means the Person acting as
the "Security Agent", as defined in the Existing PTMI
Agreement, under the Existing PTMI Agreement and related
collateral agreements.
"PT-Rio Tinto Indonesia" means P.T. RTZ-CRA
Indonesia, a limited liability company organized under the
laws of Indonesia and a wholly owned subsidiary of RTZ.
"PT-Rio Tinto Indonesia COW Assignment" means the
Assignment Agreement dated as of October 11, 1996 between
PTFI and PT-Rio Tinto Indonesia pursuant to which PTFI
assigned a partial undivided interest in the Contract of
Work to PT-Rio Tinto Indonesia.
"Put Agreement" means the Put and Guaranty
Agreement dated as of March 21, 1997, among FCX and Chase,
as security agent for the lenders under the Existing PTMI
Agreement, pursuant to which Chase will be entitled to sell,
for the PTMI Obligations Amount, to FCX all, but not a
portion of, the Pledged PTII Shares, the Pledged PTMI Shares
or the PTMI Loan Rights following the occurrence of an
"Event of Default" (as defined in each of the Put Agreement
and the Existing PTMI Agreement) and under certain other
conditions specified in the Put Agreement.
"Put Event" means (i) the loans under the Existing
PTMI Agreement shall have become due in accordance with the
terms of the Existing PTMI Agreement (at their final
maturity or upon acceleration) but shall not have been paid,
(ii) the occurrence of any of the events listed in clause
(b)(i), (b)(ii), (b)(iii), (b)(iv) or (b)(v) of the first
sentence of Section 3 of the Put Agreement or (iii) the
occurrence of an Event of Default and the acceleration of
any Loans or termination of Revolving Commitments as a
result thereof pursuant to Article VII hereof.
"Qualifying Gold Preferred Restructuring" means
the consummation prior to August 1, 2003, of an exchange
offer, restructuring or refinancing with respect to the Gold-
Denominated Preferred Stock, on terms and conditions
approved by the Administrative Agent, pursuant to which at
least 80% of the outstanding shares of Gold-Denominated
Preferred Stock are (i) amended to extend the date on which
they are mandatorily redeemable to a date on or after
January 15, 2006, (ii) exchanged for shares of common stock
of FCX or (iii) exchanged for other preferred securities or
subordinated debt of FCX the terms of which are approved by
the Administrative Agent and which (x) do not mature in
whole or part, and are not subject to any amortization,
redemption, repurchase or exchange requirements prior to
January 15, 2006, (y) are unsecured and not Guaranteed by
PTFI or any other Restricted Subsidiary and (z) are not
convertible into or exchangeable for any other securities,
other than common stock of FCX or preferred stock or
subordinated debt of FCX meeting the requirements of clauses
(x) and (y) of this sentence.
"Qualifying PTMI/FI Sale Transaction" means a
single sale after the PTMI Put Date of the Pledged PTMI
Shares, the Pledged PTII Shares (representing no more than
51% of the outstanding capital stock of PTII) or of Shares
of PTFI (representing no more than 4.78% of the outstanding
shares of capital stock of PTFI either owned by FCX and not
consituting Collateral or owned by PTII) (in each case, the
"Transferred Shares") which satisfies the following
requirements: (i) such sale (unless it is an FCX Assisted
PTMI/FI Sale) is made to a Governmental Authority of the
Republic of Indonesia (including a regional Governmental
Authority) or an investment vehicle wholly owned and
Controlled by such a Governmental Authority; (ii) the Net
Proceeds of such sale are applied to Reductions in the
Facilities in accordance with Section 2.10; (iii) the
consideration for such sale consists solely of cash and/or a
promissory note secured by, and payable with any dividends,
distributions or proceeds on or in respect of, all the
Transferred Shares (which promissory note may be nonrecourse
to such Governmental Authority); (iv) any such promissory
note and all proceeds thereof are pledged at the time any
such sale is consummated to the Administrative Agent, for
the benefit of the Secured Parties, pursuant to the FCX
Pledge Agreement (Indebtedness) or other pledge arrangements
satisfactory to the Administrative Agent (and regardless of
whether the owner of such note is FCX, PTII, PTMI or another
Person); and (v) the Administrative Agent shall have
received such favorable opinions of outside counsel to FCX
as it may reasonably request in connection with the
foregoing.
"Reduction" means, without duplication, (i) the
repayment of Term Loans, (ii) the permanent reduction of
Revolving Commitments, (iii) the cash collateralization of,
or provision of PTMI Collateralized Letters of Credit to
secure, Tranche 1 Term Loans and Tranche 1 Term Loan
Commitments or (iv) any combination of the foregoing, in
each case in accordance with the provisions of Section
2.10(c), (d), (e), (f) and (g). Until the Tranche 1
Drawdown Date, any Reduction in respect of the Tranche 1
Facility will be effected in the manner set forth in clause
(iii) of the immediately preceding sentence.
"Register" has the meaning set forth in Section
10.04.
"Related Parties" means, with respect to any
specified Person, such Person's Affiliates and the
respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders
having Revolving Exposures, Term Loans and unused
Commitments representing at least 66-2/3% of the sum of the
total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Required Percentage" has the meaning set forth in
Section 2.10(c).
"Restricted Indebtedness" means any Indebtedness
of either Borrower or any Restricted Subsidiary, the
payment, prepayment, redemption, repurchase or defeasance of
which is restricted under Section 6.08.
"Restricted Payment" means any dividend or other
distribution (whether in cash, securities or other property)
with respect to any Equity Interests in either Borrower or
any Restricted Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any
Equity Interests (including any payment under a Synthetic
Purchase Agreement related to any Equity Interests) in
either Borrower or any Restricted Subsidiary or any option,
warrant or other right to acquire any such Equity Interests
in either Borrower or any Restricted Subsidiary.
"Restricted Subsidiary" means PTFI and any other
Subsidiary of FCX or PTFI that is not an Unrestricted
Subsidiary.
"Revolving Commitment" means a Tranche A Revolving
Commitment or a Tranche B Revolving Commitment.
"Revolving Exposure" means, with respect to any
Lender at any time, the sum of the outstanding principal
amount of such Lender's Revolving Loans and its LC Exposure
at such time.
"Revolving Lenders" means Lenders with a Revolving
Commitment or, if the Revolving Commitments of a Class have
terminated or expired, Lenders with Tranche A Exposure or
Tranche B Exposure, as the case may be.
"Revolving Loans" means Tranche A Revolving Loans
and Tranche B Revolving Loans.
"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 Documents" has the meaning assigned to such
term in Section 10.16.
"RTZ-IIL" means Rio Tinto Indonesia Investments
Limited (formerly known as RTZ Indonesian Investments
Limited), a company organized under the laws of England.
"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-Rio
Tinto Indonesia in the Contract of Work and the Joint
Account Assets pursuant to the Participation Agreement and
in the Concentrate Sales Agreements pursuant to the FI Trust
Agreement, in each case as permitted by Section 6.15.
"RTZIF" means RTZ Indonesian Finance Limited, a
company organized under the laws of England and a wholly
owned subsidiary of RTZ.
"S&P" means Standard & Poor's.
"Sales Proceeds Account" has the meaning assigned
to such term in the FI Trust Agreement.
"Scheduled Debt Repayments" means the scheduled
repayments of Long-Term Indebtedness of the Borrowers and
the Restricted Subsidiaries existing on the Effective Date
(which scheduled repayments are set forth on Schedule 1.01)
or incurred after the Effective Date in accordance with
Section 6.01(a).
"Secured Parties" means the Administrative Agent,
the Issuing Bank, Security Agent, the JAA Security Agent,
the Documentation Agent, the Lenders, each counterparty to a
Hedging Agreement that is a Lender or Lender Affiliate on
the date hereof or at the time such Hedging Agreement is
entered into after the date hereof, The Chase Manhattan Bank
or any of its Affiliates providing cash management services
to FCX or PTFI, the Barclays Creditors and, in the case of
the Fiduciary Assignment and the JAA Fiduciary Transfer, RTZ-
IIL, and the successors and assigns of the foregoing.
"Security Agent" means Chase, not in its
individual capacity, but as Security Agent for the Lenders
under the FCX Pledge Agreements, the Lender Security
Agreement, the Lender Surat Kuasa, the Lender Fiduciary
Assignment and the Fiduciary Transfer.
"Security Document Amendments" means the Lender
Security Agreement Amendments, the FI Annexes Amendments and
the FI Security Documents Amendments.
"Security Documents" means the FI Security
Documents, the FCX Pledge Agreements, the PTFI Pledge
Agreement and each other security agreement or other
instrument or document executed and delivered pursuant to
Section 5.12 or 5.13 to secure any of the Obligations.
"Semi-Annual Period" means the period from October
1, 2001 through December 31, 2001 and thereafter, each
period from January 1 through June 30 and from July 1
through December 31, in each year.
"Side Letter" means the agreement dated as of
October 11, 1996 between PTFI, RTZ, PT-Rio Tinto Indonesia,
RTZIF, RTZ Indonesian Investments Limited, the Trustee, the
JAA Security Agent and certain secured creditors of FI.
"Side Letter Creditor Annexes" means the Side
Letter Creditor Annex No. 3 and the Side Letter Creditor
Annex No. 4, in each case substantially in the form of
Exhibit F-11.
"Special Account" has the meaning assigned to such
term in the FI Trust Agreement.
"Stock Purchase Agreement" means the Agreement
dated as of May 2, 1995, by and between (among other
parties) FCX, RTZ, RTZ Indonesia and RTZ America.
"subsidiary" means, with respect to any Person
(the "parent") at any date, any corporation, limited
liability company, partnership, association or other entity
the accounts of which would be consolidated with those of
the parent in the parent's consolidated financial statements
if such financial statements were prepared in accordance
with GAAP as of such date, as well as any other corporation,
limited liability company, partnership, association or other
entity of which securities or other ownership interests
representing more than 50% of the ordinary voting power or,
in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned,
controlled or held by the parent or one or more subsidiaries
of the parent or by the parent and one or more subsidiaries
of the parent.
"Subsidiary" means any subsidiary of either
Borrower.
"Subsidiary Guarantee Agreement" means (i) a
Subsidiary Guarantee Agreement substantially in the form of
Exhibit H executed by each Indonesian Subsidiary Guarantor
and (ii) a Subsidiary Guarantee Agreement substantially in
the form of Exhibit H executed by each non-Indonesian
Subsidiary Guarantor.
"Subsidiary Guarantor" means each Restricted
Subsidiary that has become party to a Subsidiary Guarantee
Agreement.
"Surat Kuasa" means the Surat Kuasa (Power of
Attorney) dated October 11, 1996, granted by PTFI and PT-Rio
Tinto Indonesia to the FI Trustee, as amended and restated
by the Surat Kuasa Amendment and Restatement.
"Surat Kuasa Amendment and Restatement" means the
amendment and restatement of the Surat Kuasa substantially
in the form of Exhibit G.
"Synthetic Purchase Agreement" means any swap,
derivative or other agreement or combination of agreements
pursuant to which either Borrower or any Restricted
Subsidiary is or may become obligated to make (i) any
payment in connection with a purchase by any third party
from a Person other than the Borrowers or any Restricted
Subsidiary of any Equity Interest or Restricted Indebtedness
or (ii) any payment (other than on account of a permitted
purchase by it of any Equity Interest or any Restricted
Indebtedness) the amount of which is determined by reference
to the price or value at any time of any Equity Interest or
Restricted Indebtedness; provided that no phantom stock or
similar plan providing for payments only to current or
former directors, officers or employees of the Borrowers or
any Restricted Subsidiary (or to their heirs or estates)
shall be deemed to be a Synthetic Purchase Agreement.
"Taxes" means any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority.
"Term Loan" means a Tranche 1 Term Loan, a Tranche
A Term Loan or a Tranche B Term Loan.
"Total Indebtedness" means, as of any date, (a)
the aggregate principal amount of Indebtedness of the
Borrowers and the Restricted Subsidiaries outstanding as of
such date, in the amount that would be reflected as a
liability on a balance sheet prepared as of such date on a
consolidated basis in accordance with GAAP, minus (b) the
aggregate amount of cash and Permitted Investments of the
Borrowers and the Restricted Subsidiaries as of such date,
other than any cash and Permitted Investments securing the
Convertible Notes or otherwise subject to a Lien or escrow
arrangement securing Indebtedness or other obligations.
"Tranche A Exposure" means, with respect to any
Tranche A Lender at any time, the sum of the outstanding
principal amount of such Tranche A Lender's Tranche A
Revolving Loans and Tranche A LC Exposure at such time.
"Tranche A Facility" means the Tranche A Revolving
Commitments and all Loans, including Tranche A Term Loans,
and Letters of Credit made or issued pursuant to the Tranche
A Revolving Commitments.
"Tranche A Lender" means a Lender with a Tranche A
Revolving Commitment or, if the Tranche A Revolving
Commitments have terminated or expired, a Lender with
outstanding Tranche A Loans.
"Tranche A Loan" means a Tranche A Revolving Loan
or a Tranche A Term Loan.
"Tranche A Revolving Availability Period" means
the period from and including the Effective Date to but
excluding the earlier of the Tranche A Revolving Commitment
Termination Date and the date of termination of the Tranche
A Revolving Commitments.
"Tranche A Revolving Commitment" or "Tranche A
Commitment" means, with respect to each Tranche A Lender,
the commitment of such Tranche A Lender to make Tranche A
Revolving Loans expressed as an amount representing the
maximum aggregate amount of such Tranche A Revolving
Lender's Tranche A Revolving Loans hereunder, as such
commitment may be (a) reduced from time to time pursuant to
Section 2.07 and (b) reduced or increased from time to time
pursuant to assignments by or to such Tranche A Lender
pursuant to Section 10.04. The initial amount of each
Tranche A Lender's Tranche A Revolving Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Tranche A Lender shall have assumed
its Tranche A Revolving Commitment, as applicable. The
initial aggregate amount of the Tranche A Lenders' Tranche A
Revolving Commitments is $320,000,000.
"Tranche A Revolving Commitment Termination Date"
means December 31, 2003.
"Tranche A Revolving Loan" means a Revolving Loan
made pursuant to clause (a) of Section 2.01.
"Tranche A Term Loan" means a Loan initially made
as a Tranche A Revolving Loan which is converted into a term
loan on the Tranche A Commitment Termination Date in
accordance with Section 2.01(b).
"Tranche B Commitment Reduction Date" means
December 31, 2003.
"Tranche B Facility" means the Tranche B Revolving
Commitments and all Loans, including Tranche B Term Loans,
and Letters of Credit made or issued pursuant to the Tranche
B Revolving Commitments.
"Tranche B Lender" means a Lender with a Tranche B
Revolving Commitment or, if the Tranche B Revolving
Commitments have terminated or expired, a Lender with
outstanding Tranche B Loans.
"Tranche B Loan" means a Tranche B Revolving Loan
or a Tranche B Term Loan.
"Tranche B Revolving Availability Period" means
the period from and including the Effective Date to but
excluding the earlier of the Tranche B Revolving Commitment
Termination Date and the date of Termination of the Tranche
B Revolving Commitments.
"Tranche B Revolving Commitment" or "Tranche B
Commitment" means, with respect to each Tranche B Lender,
the commitment of such Tranche B Lender to make Tranche B
Revolving Loans expressed as an amount representing the
maximum aggregate amount of such Tranche B Lender's Tranche
B Revolving Loans hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.07 and (b)
reduced or increased from time to time pursuant to
assignments by or to such Tranche B Revolving Lender
pursuant to Section 10.04. The initial amount of each
Tranche B Lender's Tranche B Revolving Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Tranche B Revolving Lender shall have
assumed its Tranche B Revolving Commitment, as applicable.
The initial aggregate amount of the Tranche B Revolving
Lenders' Tranche B Revolving Commitments is
$265,000,000.
"Tranche B Revolving Commitment Termination Date"
means the earlier of (i) the date that is one year after the
first date after December 31, 2003, on which all Tranche A
Loans have been paid in full and (ii) the Maturity Date.
"Tranche B Revolving Exposure" means, with respect
to any Tranche B Lender at any time, the sum of the
outstanding principal amount of such Tranche B Lender's
Tranche B Revolving Loans and Tranche B LC Exposure at such
time.
"Tranche B Revolving Loan" means a Revolving Loan
made pursuant to clause (b) of Section 2.01.
"Tranche B Term Loan" means a Loan initially made
as a Tranche B Revolving Loan which is converted into a term
loan on the Tranche B Commitment Reduction Date in
accordance with Section 2.01(c).
"Tranche 1 Drawdown Date" means the date on which
the Tranche 1 Term Loans are funded.
"Tranche 1 Facility" means the Tranche 1 Term Loan
Commitments and all Tranche 1 Term Loans made pursuant to
the Tranche 1 Term Loan Commitments, and for purposes of
Article VII hereof, the Tranche 1 Facility will be deemed to
include, prior to the Tranche 1 Drawdown Date, the PTMI
Principal Obligations and other PTMI Loan Rights held by
each Tranche 1 Lender.
"Tranche 1 Lender" means a Lender with a Tranche 1
Term Commitment or an outstanding Tranche 1 Term Loan.
"Tranche 1 Term Loan" means a Term Loan made
pursuant to clause (a)(iii) of Section 2.01.
"Tranche 1 Term Loan Commitment" or "Tranche 1
Commitment" means, with respect to each Tranche 1 Term
Lender, the commitment of such Lender to make a Tranche 1
Term Loan hereunder on the PTMI Put Date, expressed as an
amount representing the maximum principal amount of the
Tranche 1 Term Loan to be made by such Lender hereunder, as
such commitment may be (a) reduced from time to time
pursuant to Section 2.07 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04. The initial amount of each
Tranche 1 Term Lender's Tranche 1 Term Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which Tranche 1 Term such Lender shall have
assumed its Tranche 1 Term Loan Commitment, as applicable.
The initial aggregate amount of the Lenders' Tranche 1 Term
Loan Commitments is $253,370,905.
"Transactions" means the execution, delivery and
performance by each Loan Party of the Loan Documents to
which it is to be a party, the borrowing of Loans and the
use of the proceeds thereof.
"Transferred Shares" has the meaning set forth in
the definition of "Qualifying PTMI/FI Sale Transaction.
"2026 Senior Notes" means the 7.20% Senior Notes
due 2026 of FCX in an aggregate principal amount outstanding
on the date hereof of $250,000,000.
"Type", when used in reference to any Loan or
Borrowing, refers to whether the rate of interest on such
Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Unrestricted Subsidiary" means (i) any of the
Subsidiaries existing on the Effective Date and identified
on Schedule 3.12 as an Unrestricted Subsidiary, (ii) any
Subsidiary of any Unrestricted Subsidiary and (iii) any
surviving corporation (other than PTFI 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 6.03, (iv) any Subsidiary organized after
the date of this Agreement and designated as a Unrestricted
Subsidiary by FCX in accordance with Section 6.17 at the
time of its organization, (v) in the event a PT Kencana
Financing is consummated in accordance with the provisions
of Sections 6.01, 6.02 and 6.04, PT Kencana and/or PT
Kencana Wisata, if such Subsidiary is designated as an
Unrestricted Subsidiary in accordance with Section 6.17, and
(vi) in the event the investment therein is permitted by
Section 6.04, any Exploration Subsidiary, if it is
designated as an Unrestricted Subsidiary pursuant to Section
6.17.
"Wholly Owned Restricted Subsidiary" means a
Wholly Owned Subsidiary that is a Restricted Subsidiary.
"Wholly Owned Subsidiary" shall mean a subsidiary
of FCX or PTFI, as the case may be, of which securities or
other ownership interests (except for directors' qualifying
shares and other de minimis amounts of outstanding
securities or ownership interests) representing 100% of the
ordinary voting power and 100% of equity or 100% of the
general partnership interests are, at the time any
determination is being made, owned, controlled or held by
FCX or PTFI or one or more Wholly Owned Subsidiaries of FCX
or PTFI or by FCX or PTFI and one or more Wholly Owned
Subsidiaries of FCX or PTFI.
"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 1.02. Classification of Loans and
Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a "Tranche A
Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or
by Class and Type (e.g., a "Eurodollar Revolving Loan").
Borrowings also may be classified and referred to by Class
(e.g., a "Revolving Borrowing" or "Tranche 1 Term
Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or
by Class and Type (e.g., a "Eurodollar Revolving
Borrowing"), and Letters of Credit may be classified and
referred to by Class (e.g., a "Tranche A Letter of Credit").
SECTION 1.03. Terms Generally. The definitions
of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by
the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to
such agreement, instrument or other document as from time to
time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to
any Person shall be construed to include such Person's
successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed
to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words "asset"
and "property" shall be construed to have the same meaning
and effect and to refer to any and all tangible and
intangible assets and properties, including cash,
securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as
otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time;
provided that, if the Borrowers notify the Administrative
Agent that the Borrowers request an amendment to any
provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or
if the Administrative Agent notifies the Borrowers that the
Required Lenders request an amendment to any provision
hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in
the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied
immediately before such change shall have become effective
until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the
terms and conditions set forth herein, (i) each Tranche A
Lender agrees to make Tranche A Revolving Loans to PTFI from
time to time during the Tranche A Revolving Availability
Period in an aggregate principal amount that will not result
in such Tranche A Lender's Tranche A Exposure exceeding such
Tranche A Lender's Tranche A Revolving Commitment, (ii) each
Tranche B Lender agrees to make Tranche B Revolving Loans to
the Borrowers from time to time during the Tranche B
Revolving Availability Period in an aggregate principal
amount that will not result in such Tranche B Lender's
Tranche B Revolving Exposure exceeding such Tranche B
Lender's Tranche B Revolving Commitment and (iii) each
Tranche 1 Lender agrees to make a Tranche 1 Term Loan to FCX
on the PTMI Put Date in a principal amount not exceeding its
Tranche 1 Term Loan Commitment. Within the foregoing limits
and subject to the terms and conditions set forth herein,
the Borrowers may borrow, prepay and reborrow Revolving
Loans. Amounts repaid in respect of Term Loans may not be
reborrowed.
(b) Each Tranche A Revolving Loan of any Lender
outstanding at 5:00 p.m., New York time, on the Tranche A
Revolving Commitment Termination Date (other than any such
Tranche A Revolving Loan required by any other provision of
this Agreement to have been repaid on or prior to such time,
which shall remain due and payable as required hereby) will
automatically be converted at such time into a Tranche A
Term Loan of such Lender, payable in accordance with the
provisions of Section 2.08.
(c) At 5:00 p.m., New York time, on the Tranche B
Commitment Reduction Date Tranche B Revolving Loans in a
principal amount equal to (i) the aggregate outstanding
principal amount of all Tranche B Loans minus (ii) the
amount, if any, by which $150,000,000 exceeds the unused
Tranche B Revolving Commitments at such time will
automatically be converted at such time into Tranche B Term
Loans, payable in accordance with the provisions of Section
2.08 (provided that any such Tranche B Revolving Loans
required by any other provisions of this Agreement to have
been repaid on or prior to such time, shall not be converted
and shall remain due and payable as required hereby). Such
conversion will be effected on a pro rata basis with respect
to the outstanding Tranche B Revolving Loans of each Tranche
B Lender, based on the respective principal amounts thereof.
Any such Tranche B Revolving Loans not so converted will
remain outstanding as Tranche B Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each
Loan shall be made as part of a Borrowing consisting of
Loans of the same Class and Type made by the Lenders ratably
in accordance with their respective Commitments of the
applicable Class. The failure of any Lender to make any
Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans
as required.
(b) Subject to Section 2.13, each Revolving
Borrowing and Term Borrowing shall be comprised entirely of
ABR Loans or Eurodollar Loans as the applicable Borrower may
request in accordance herewith. Each Lender at its option
may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not
affect the obligation of the applicable Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period
for any Eurodollar Borrowing, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000
and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000
and not less than $5,000,000; provided that an ABR Revolving
Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Tranche A Revolving
Commitments or Tranche B Revolving Commitments, as
applicable. Borrowings of more than one Type and Class may
be outstanding at the same time; provided that there shall
not at any time be more than a total of 20 Eurodollar
Borrowings outstanding.
(d) Notwithstanding any other provision of this
Agreement, neither Borrower shall be entitled to request, or
to elect to convert or continue, any Borrowing if the
Interest Period requested with respect thereto would end
after the Maturity Date.
(e) Notwithstanding any provision to the contrary
contained herein, on the Effective Date, (i) each
outstanding loan of a Tranche B Lender under the Existing
FCX/PTFI Agreement shall automatically become a Tranche B
Revolving Loan of such Tranche B Lender under this Agreement
and (ii) each outstanding loan of a Tranche A Lender under
the Existing PTFI Agreement shall automatically become a
Tranche A Revolving Loan of such Tranche A Lender under this
Agreement, in each case of the same Type and having the same
Interest Period as in effect under such agreements on the
Effective Date; provided, however, that from and after the
Effective Date, each such Loan shall bear interest in
accordance with the provisions of this Agreement.
SECTION 2.03. Requests for Borrowings. (a) To
request a Revolving Borrowing or Tranche 1 Term Borrowing, a
Borrower shall notify the Administrative Agent of such
request by telephone (i) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time,
three Business Days before the date of the proposed
Borrowing or (ii) in the case of an ABR Borrowing, including
to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e), not later than 10:00 a.m.,
New York City time, on the date of the proposed Borrowing.
Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by
the applicable Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in
compliance with Section 2.02:
(i) whether the requested Borrowing is to be a
Tranche A Revolving Borrowing, Tranche B Revolving
Borrowing or Tranche 1 Term Borrowing and, in the case
of a Revolving Borrowing, whether and to what extent
such Borrowing constitutes a Non-Flow Reborrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a
Business Day;
(iv) whether such Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the
initial Interest Period to be applicable thereto, which
shall be a period contemplated by the definition of the
term "Interest Period"; and
(vi) the location and number of the applicable
Borrower's account to which funds are to be disbursed,
which shall comply with the requirements of Section
2.04.
If no election as to the Type of Borrowing is specified,
then the requested Borrowing shall be an ABR Borrowing. If
no Interest Period is specified with respect to any
requested Eurodollar Borrowing, then the applicable Borrower
shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative
Agent shall advise each Lender of the details thereof and of
the amount of such Lender's Loan to be made as part of the
requested Borrowing.
(b) FCX shall request (and in the absence of such
request shall be deemed to have irrevocably requested),
pursuant to Section 2.03(a), a Tranche 1 Term Borrowing to
be made on the PTMI Put Date in an amount equal to the
lesser of (i) the aggregate PTMI Principal Obligations on
the PTMI Put Date (less any such PTMI Principal Obligations
purchased on such date by FCX with funds other than the
proceeds of Tranche 1 Term Loans) and (ii) the aggregate
amount of the Tranche 1 Term Commitments. Notwithstanding
that a Default may have occurred and be continuing on the
PTMI Put Date, each Tranche 1 Lender having any PTMI
Principal Obligations shall be entitled at its option to
make a Tranche 1 Term Loan to FCX on the PTMI Put Date in a
principal amount equal to the lesser of (i) the amount of
such Tranche 1 Lender's PTMI Principal Obligations and (ii)
such Tranche 1 Lender's Tranche 1 Commitment, and,
notwithstanding any contrary provision in the Put Agreement
or the Existing PTMI Agreement (all of which are hereby
waived by FCX and each Tranche 1 Lender), the proceeds of
such Tranche 1 Term Loan shall be applied, in the manner set
forth in Section 2.04, to the purchase by FCX of an
equivalent amount of such Tranche 1 Lender's PTMI Principal
Obligations and such Tranche 1 Lender shall not be obligated
to share any portion of such purchase payment with any other
lender under the Existing PTMI Agreement; provided that the
foregoing shall not affect any obligation of any Tranche 1
Lender hereunder to make Tranche 1 Term Loans on the PTMI
Put Date.
SECTION 2.04. Funding of Borrowings. (a) Each
Lender shall make each Loan to be made by it hereunder on
the proposed date thereof by wire transfer of immediately
available funds by 12:00 noon, New York City time, to the
account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders; provided
that each Tranche 1 Lender to which any PTMI Obligations
Amount is owed on the PTMI Put Date shall make its Tranche 1
Term Loan by directly applying the proceeds thereof to the
payment of such PTMI Obligations Amount owed to it and
transferring the balance, if any, of such Tranche 1 Term
Loan to the Administrative Agent in the manner and at the
time specified by the foregoing provisions of this sentence.
The Administrative Agent will make such funds transferred to
it available to the applicable Borrower by promptly
crediting the amounts so received, in like funds, to an
account of such Borrower maintained with the Administrative
Agent in New York City and designated by such Borrower in
the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of
any Borrowing that such Lender will not make available to
the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the
applicable Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the
applicable Lender and the applicable Borrower severally
agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each
day from and including the date such amount is made
available to such Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of
such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank
compensation or (ii) in the case of a Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.05. Letters of Credit. (a) General.
Subject to the terms and conditions set forth herein, FCX
and/or PTFI (i) shall, in accordance with the provisions of
Section 2.10(g), request the issuance of Letters of Credit
for its own account, in substantially the form of Exhibit E
hereto, at any time and from time to time during the
Revolving Availability Period, solely for the purpose of
securing and providing for the prepayment of certain Tranche
1 Term Loans on the Tranche 1 Drawdown Date and (ii) either
Borrower may request the issuance of Letters of Credit for
its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and
from time to time during the Tranche A Revolving
Availability Period.
(b) Notice of Issuance, Amendment, Renewal,
Extension; Certain Conditions. To request the issuance of a
Letter of Credit (or the amendment, renewal or extension of
an outstanding Letter of Credit), a Borrower shall hand
deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been
approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested
date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or
extended, and specifying, whether such Letter of Credit is
to be issued pursuant to the Tranche A Revolving Commitments
or the Tranche B Revolving Commitments (which specification,
in the case of a PTMI Collateralized Letter of Credit, shall
be made in accordance with Section 2.10(g)), the date of
issuance, amendment, renewal or extension (which shall be a
Business Day), the date on which such Letter of Credit is to
expire, the amount of such Letter of Credit (which, in the
case of a PTMI Collateralized Letter of Credit, shall be in
accordance with the requirements of Section 2.10(g)), in the
case of a Letter of Credit other than a PTMI Collateralized
Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. Each
PTMI Collateralized Letter of Credit shall name the
Administrative Agent (in such capacity and acting on behalf
of the Tranche 1 Lenders) as beneficiary and shall have a
stated expiration date of September 17, 2003. A Letter of
Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrowers shall be deemed to represent
and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure (other
than that portion of the LC Exposure attributable to PTMI
Collateralized Letters of Credit) shall not exceed
$50,000,000 and (ii) the total Revolving Exposures of the
relevant Class shall not exceed the total Revolving
Commitments of such Class.
(c) Expiration Date. Each (i) PTMI
Collateralized Letter of Credit shall expire at or prior to
the close of business on September 17, 2003 and (ii) Letter
of Credit other than a PTMI Collateralized Letter of Credit
shall expire at or prior to the close of business on the
earlier of (x) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or
extension) and (y) the date that is five Business Days prior
to the Tranche A Revolving Commitment Termination Date, in
the case of a Letter of Credit issued under the Tranche A
Facility, and the Tranche B Revolving Commitment Termination
Date, in the case of a Letter of Credit issued under the
Tranche B Facility.
(d) Participations. By the issuance of a Letter
of Credit (or an amendment to a Letter of Credit increasing
the amount thereof) and without any further action on the
part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender of the applicable
Class, and each such Revolving Lender hereby acquires from
the Issuing Bank, a participation in such Letter of Credit
equal to such Lender's Applicable Percentage of the
aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender of the applicable Class
hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank,
such Lender's Applicable Percentage of each LC Disbursement
made by the Issuing Bank and not reimbursed by the Borrowers
on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be
refunded to either Borrower for any reason. Each Tranche A
Lender and each Tranche B Lender acknowledges and agrees
that its obligation to acquire participations pursuant to
this paragraph in respect of Letters of Credit issued
pursuant to the Tranche A Revolving Commitments or Tranche B
Revolving Commitments, respectively, is absolute and
unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Commitments of
such Class, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall
make any LC Disbursement in respect of a Letter of Credit,
the Borrowers shall reimburse such LC Disbursement by paying
to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time,
on the date that such LC Disbursement is made, if the
Borrowers shall have received notice of such LC Disbursement
prior to 10:00 a.m., New York City time, on such date, or,
if such notice has not been received by the Borrowers prior
to such time on such date, then not later than 12:00 noon,
New York City time, on (i) the Business Day that the
Borrowers receive such notice, if such notice is received
prior to 10:00 a.m., New York City time, on the day of
receipt, or (ii) the Business Day immediately following the
day that the Borrowers receive such notice, if such notice
is not received prior to such time on the day of receipt;
provided that the Borrowers may, subject to the conditions
to borrowing set forth herein, request in accordance with
Section 2.03 or 2.04 that such payment be financed with a
Revolving Borrowing in an equivalent amount and, to the
extent so financed, the Borrowers' obligation to make such
payment shall be discharged and replaced by the resulting
Revolving Borrowing. If the Borrowers fail to make such
payment when due, the Administrative Agent shall notify each
Revolving Lender of the relevant Class of the applicable LC
Disbursement, the payment then due from the Borrowers in
respect thereof and such Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each
Revolving Lender of the applicable Class shall pay to the
Administrative Agent its Applicable Percentage of the
payment then due from the Borrowers, in the same manner as
provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligations of Revolving Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank
the amounts so received by it from such Revolving Lenders.
Promptly following receipt by the Administrative Agent of
any payment from a Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that Revolving Lenders have
made payments pursuant to this paragraph to reimburse the
Issuing Bank, then to such Lenders and the Issuing Bank as
their interests may appear. Any payment made by a Revolving
Lender pursuant to this paragraph to reimburse the Issuing
Bank for any LC Disbursement (other than the funding of
Revolving Loans as contemplated above) shall not constitute
a Loan and shall not relieve the Borrowers of their
obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrowers'
obligation to reimburse LC Disbursements as provided in
paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever and irrespective
of (i) any lack of validity or enforceability of any Letter
of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank
under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such
Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing,
that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a
right of setoff against, the Borrowers' obligations
hereunder. Neither the Administrative Agent, the Lenders
nor the Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or
in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under
or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising
from causes beyond the control of the Issuing Bank; provided
that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrowers to the extent
of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the
Borrowers to the extent permitted by applicable law)
suffered by the Borrowers that are caused by the Issuing
Bank's failure to exercise care when determining whether
drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or
wilful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction),
the Issuing Bank shall be deemed to have exercised care in
each such determination. In furtherance of the foregoing
and without limiting the generality thereof, the parties
agree that, with respect to documents presented which appear
on their face to be in substantial compliance with the terms
of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such
documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if
such documents are not in strict compliance with the terms
of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank
shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under
a Letter of Credit. The Issuing Bank shall promptly notify
the Administrative Agent and the Borrowers by telephone
(confirmed by telecopy) of such demand for payment and
whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give
or delay in giving such notice shall not relieve the
Borrowers of their obligation to reimburse the Issuing Bank
and the Revolving Lenders of the applicable Class with
respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall
make any LC Disbursement, then, unless the Borrowers shall
reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the
Borrowers reimburse such LC Disbursement, at the rate per
annum then applicable to ABR Revolving Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when
due pursuant to paragraph (e) of this Section, then Section
2.12(d) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of
payment by any Revolving Lender pursuant to paragraph (e) of
this Section to reimburse the Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing
Bank may be replaced at any time by written agreement among
the Borrowers, the Administrative Agent, the replaced
Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Bank. At the time any such
replacement shall become effective, the Borrowers shall pay
all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.11(c). From and after
the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with
respect to Letters of Credit to be issued thereafter and
(ii) references herein to the term "Issuing Bank" shall be
deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks,
as the context shall require. After the replacement of an
Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to
issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of
Default shall occur and be continuing, on the Business Day
that the Borrowers receive notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Revolving Lenders with LC
Exposure representing greater than 66b% of the total LC
Exposure) demanding the deposit of cash collateral pursuant
to this paragraph, the Borrowers shall deposit in an account
with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Revolving
Lenders, an amount in cash equal to the LC Exposure as of
such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of
Default with respect to either Borrower described in clause
(g) or (h) of Article VII. Each such deposit shall be held
by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrowers under
this Agreement, and the Borrowers hereby grant the Lenders a
security interest in all funds and investments in such
account to secure such obligations. The Administrative
Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits,
which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrowers'
risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held
for the satisfaction of the reimbursement obligations of the
Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to
the consent of Revolving Lenders with LC Exposure
representing greater than 66-2/3% of the total LC Exposure),
be applied to satisfy other obligations of the Borrowers
under this Agreement. If the Borrowers are required to
provide an amount of cash collateral hereunder as a result
of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to
the Borrowers within three Business Days after all Events of
Default have been cured or waived.
SECTION 2.06. Interest Elections. (a) Each
Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a
Eurodollar Borrowing, shall have an initial Interest Period
as specified in such Borrowing Request. Thereafter, the
applicable Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. A Borrower may
elect different options with respect to different portions
of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section,
the applicable Borrower shall notify the Administrative
Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if
such Borrower were requesting a Revolving Borrowing of the
Type resulting from such election to be made on the
effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request
in a form approved by the Administrative Agent and signed by
the applicable Borrower.
(c) Each telephonic and written Interest Election
Request shall specify the following information in
compliance with Section 2.02 (including with respect to
minimum amounts and borrowing multiples relating to any
resulting Borrowing):
(i) the Borrowing to which such Interest Election
Request applies and, if different options are being
elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting
Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting Borrowing);
(ii) the effective date of the election made
pursuant to such Interest Election Request, which shall
be a Business Day;
(iii) whether the resulting Borrowing is to be an
ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar
Borrowing, the Interest Period to be applicable thereto
after giving effect to such election, which shall be a
period contemplated by the definition of the term
"Interest Period".
If any such Interest Election Request requests a Eurodollar
Borrowing but does not specify an Interest Period, then the
applicable Borrower shall be deemed to have selected an
Interest Period of one month's duration.
(d) Promptly following receipt of an Interest
Election Request with respect to a Borrowing of any Class,
the Administrative Agent shall advise each Lender of such
Class of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) If the applicable Borrower fails to deliver a
timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event
of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required
Lenders, so notifies the Borrowers, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing
may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.07. Termination and Reduction of
Commitments. (a) Unless previously terminated, (i) the
Tranche 1 Term Commitments will terminate at 5:00 p.m., New
York City time, on the earliest of March 17, 2003, the PTMI
Put Date and the indefeasible payment in full of the PTMI
Principal Obligations, (ii) the Tranche A Revolving
Commitments will terminate on the Tranche A Revolving
Commitment Termination Date and (iii) the Tranche B
Revolving Commitments will terminate on the Tranche B
Revolving Commitment Termination Date.
(b) On the Tranche B Commitment Reduction Date,
the Tranche B Revolving Commitments will be permanently
reduced by the amount, if any, by which the aggregate
Tranche B Revolving Commitments exceed $150,000,000.
(c) The Revolving Commitments will be permanently
reduced, on a pro rata basis based on the respective amounts
of the Tranche A Revolving Commitments and Tranche B
Revolving Commitments at the time of such reduction, in such
amounts and at such times required by the provisions of
Section 2.10(c) and (d). The Tranche 1 Term Loan Commitment
of each Tranche 1 Lender will be automatically and
permanently reduced upon the payment to such Lender,
pursuant to the Existing PTMI Agreement, of any PTMI
Principal Obligations held by such Lender, in an amount
equal to the amount of such payment.
(d) The Borrowers may at any time terminate, or
from time to time reduce, the Commitments of any Class;
provided that (i) each reduction of the Commitments of any
Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000; (ii) the Borrowers
shall not terminate or reduce the Tranche A Revolving
Commitments or the Tranche B Revolving Commitments if, after
giving effect to any concurrent prepayment of the Tranche A
Revolving Loans or Tranche B Revolving Loans in accordance
with Section 2.10, the aggregate Tranche A Exposures or
Tranche B Revolving Exposures would exceed the total Tranche
A Revolving Commitments or Tranche B Revolving Commitments,
respectively; and (iii) the Borrowers will not in any event
terminate or reduce the Tranche 1 Term Loan Commitments of
any Tranche 1 Lender without the prior written consent of
such Tranche 1 Lender if, after giving effect thereto, the
Tranche 1 Term Loan Commitment of such Tranche 1 Lender
would be less than the then-current PTMI Principal
Obligations held by such Tranche 1 Lender minus such
Lender's Applicable Percentage of Collateralized PTMI
Advances, if any.
(e) The Borrowers will notify the Administrative
Agent of any election to terminate or reduce the Commitments
under paragraph (d) of this Section, or any required
reduction of the Revolving Commitments under paragraph (c)
of this Section, at least three Business Days prior to the
effective date of such termination or reduction, specifying
such election or reduction and the effective date thereof.
Promptly following receipt of any notice, the Administrative
Agent shall advise the Lenders of the contents thereof.
Each notice delivered by the Borrowers pursuant to this
Section shall be irrevocable; provided that a notice of
voluntary termination of the Revolving Commitments delivered
by the Borrowers pursuant to paragraph (d) of this Section
may state that such notice is conditioned upon the
effectiveness of other financings, in which case such notice
may be revoked by the Borrowers (by notice to the
Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination
or reduction of the Commitments of any Class shall be
permanent. Each reduction of the Commitments of any Class
shall (except as contemplated by clause (iii) of paragraph
(d) of this Section) be made ratably among the Lenders in
accordance with their respective Commitments of such Class.
SECTION 2.08. Repayment of Loans. PTFI hereby
unconditionally promises to pay to the Administrative Agent
on the Maturity Date, for the account of each Tranche A
Lender, the then unpaid principal amount of each Tranche A
Term Loan of such Tranche A Lender. Each Borrower hereby
unconditionally promises to pay to the Administrative Agent
(i) on the Maturity Date, for the account of each Tranche B
Lender, the then unpaid principal amount of each Tranche B
Term Loan of such Tranche B Lender to such Borrower and (ii)
on the Tranche B Revolving Commitment Termination Date, for
the account of each Tranche B Lender, the then unpaid
principal amount of each Tranche B Revolving Loan of such
Tranche B Lender to such Borrower. FCX hereby
unconditionally promises to pay to the Administrative Agent
on the Maturity Date, for the account of each Tranche 1 Term
Lender, the then unpaid principal amount of each Tranche 1
Term Loan of such Lender.
SECTION 2.09. Evidence of Debt. (a) Each Lender
shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the
Borrowers to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(b) The Administrative Agent shall maintain
accounts in which it shall record (i) the amount of each
Loan made hereunder, the Class and Type thereof and the
Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and
payable from each Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(c) The entries made in the accounts maintained
pursuant to paragraph (a) or (b) of this Section shall be
prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of
any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect
the obligation of either Borrower to repay the Loans in
accordance with the terms of this Agreement.
(d) Any Lender may request that Loans of any
Class made by it be evidenced by a promissory note. In such
event, the Borrowers shall prepare, execute and deliver to
such Lender a promissory note payable to the order of such
Lender (or, if requested by such Lender, to such Lender and
its registered assigns) and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be
represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Prepayment of Loans. (a) The
Borrowers shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to
the requirements of this Section.
(b) In the event and on each occasion on or prior
to the Tranche A Revolving Commitment Termination Date that
the sum of the Tranche A Exposures exceeds the total Tranche
A Revolving Commitments, PTFI shall prepay Tranche A
Revolving Borrowings in an aggregate amount equal to such
excess. In the event and on each occasion that the sum of
the Tranche B Revolving Exposures exceeds the total Tranche
B Revolving Commitments, the Borrowers shall prepay Tranche
B Revolving Borrowings in an aggregate amount equal to such
excess.
(c) In the event and on each occasion that any
Net Proceeds are received (or deemed to have been received
as contemplated by the definition of "Debt Issuance") by or
on behalf of either Borrower or any Restricted Subsidiary in
respect of any Prepayment Event, then, the Borrowers will
apply an amount equal to the Required Percentage of such Net
Proceeds to Reductions of the Loans and (prior to the
Tranche B Commitment Reduction Date) Revolving Commitments
at the times and in the manner required by paragraph (j)
below. For purposes hereof, "Required Percentage" shall
mean: (i) in the case of an Asset Disposition, 100%; (ii)
in the case of a Debt Issuance, 75%; and (iii) in the case
of an Equity Issuance, 50%; provided, however, that the
Required Percentage in respect of Net Proceeds from any
Prepayment Event received or to be applied to Reductions at
any time when an Event of Default has occurred and is
continuing will be 100%.
(d) Following the end of each Semi-Annual Period,
commencing with the Semi-Annual Period ending December 31,
2001, the Borrowers shall effect Reductions of the Loans and
Revolving Commitments in an aggregate amount equal to 100%
(or, after the Available Cash Condition has been satisfied,
75%) of Excess Cash Flow for such Semi-Annual Period. Each
prepayment pursuant to this paragraph (d) shall be made not
later than the date specified therefor in paragraph (j)
below.
(e) Notwithstanding the foregoing, prior to the
Tranche B Commitment Reduction Date, Reductions will be
required pursuant to paragraph (c) in respect of Debt
Issuances and Equity Issuances and in respect of the initial
$50,000,000 of cumulative Net Proceeds from Asset
Dispositions (other than any FCX Assisted PTMI/FI Sale) and
pursuant to paragraph (d) in respect of Excess Cash Flow, in
each case only to the extent that, immediately after giving
effect thereto, the unused Revolving Commitments would not
be less than the Protected Commitment Amount; provided,
however, that the Borrowers shall have the option of
effecting all or any portion of the amount of Exempted
Reductions exercisable by giving notice thereof pursuant to
paragraph (k) of this Section. For purposes hereof, (i)
"Exempted Reductions" means Reductions of the type referred
to in the first sentence of this paragraph that, but for the
first sentence of this paragraph, would be required pursuant
to the provisions of paragraph (c) or (d) hereof, and (ii)
"Protected Commitment Amount" means an amount equal to
$150,000,000 plus, in the case of any Reduction that would
occur prior to November 16, 2003, the aggregate principal
amount of the 2026 Senior Notes then outstanding. If, as a
result of the foregoing, the amount of Reductions effected
pursuant to paragraph (c) is less than the Required
Percentage of Net Proceeds attributable to a Prepayment
Event or the amount of Reductions effected pursuant to
paragraph (d) in respect of any Semi-Annual Period is less
than the Excess Cash Flow for such Semi-Annual Period, the
Borrowers shall, not later than the date on which such
Reductions would otherwise have been required to be made,
prepay Revolving Loans (without any related reduction of
Revolving Commitments) in an amount equal to such shortfall
(except to the extent, in the case of payments in respect of
Excess Cash Flow, that funds representing such Excess Cash
Flow have already been applied to such prepayments). Net
Proceeds from FCX Assisted PTMI/FI Sales and from Asset
Dispositions (other than any FCX Assisted PTMI/FI Sales) in
excess of the initial $50,000,000 of such Net Proceeds shall
be applied to Reductions in accordance with the provisions
of paragraph (c) without regard to the condition set forth
in this paragraph.
(f) Subject to paragraph (g) below, whenever any
Reductions are required to be made pursuant to paragraph (c)
or (d) of this Section (after giving effect to the
provisions of paragraph (e) above), such Reductions will be
applied pro rata to the Tranche A Facility, the Tranche B
Facility and the Tranche 1 Facility, based on the aggregate
Facility Exposure attributable to each such Facility;
provided, however, that the Tranche B Revolving Commitments
will not be reduced to an amount less than $150,000,000
pursuant to paragraph (c) or (d) of this Section, and any
Reduction that cannot be applied to the Tranche B Facility
due to such limitation will be applied to the other
Facilities, pro rata based on the Facility Exposures
attributable thereto. Reductions allocable to each
Revolving Facility will be applied, on or prior to the
Tranche A Revolving Commitment Termination Date, to the
reduction of the Commitments under such Facility and the
simultaneous prepayment of Loans under such Facilities in an
aggregate amount equal to such Reduction (or the aggregate
amount of outstanding Loans, if less) except, in the case of
a prepayment required under paragraph (d) of this Section,
to the extent any amount required to be prepaid shall
already have been applied to prepay the Revolving Loans and,
after the Tranche A Revolving Commitment Termination Date,
to the prepayment of Term Loans under such Facility.
Reductions allocable to the Tranche 1 Facility will be
applied, prior to the PTMI Put Date, to securing the Tranche
1 Term Loan Commitments and Tranche 1 Term Loans with cash
collateral or PTMI Collateralized Letters of Credit, as
described in paragraph (g) below, and on and after the
Tranche 1 Drawdown Date, to the prepayment of Tranche 1 Term
Loans. If at any time (including after giving effect to the
partial application of Reductions hereunder) there is no
Facility Exposure with respect to the Tranche 1 Facility or
the Tranche A Facility, no Tranche B Term Loans are
outstanding and the Tranche B Revolving Commitments are less
than or equal to $150,000,000, the amount of any Reductions
that would otherwise be required at any time hereunder will
be applied to the prepayment of outstanding Tranche B
Revolving Loans (without any related reduction of Tranche B
Revolving Commitments).
(g) Prior to the PTMI Put Date, any Reductions to
the Tranche 1 Facility required under paragraph (c) or (d)
of this Section (after giving effect to the provisions of
paragraph (e) above) ("Tranche 1 Reductions") will be
effected by securing the Tranche 1 Term Loan Commitments and
resulting Tranche 1 Term Loans with PTMI Collateralized
Letters of Credit or cash collateral in accordance with the
provisions of this paragraph. On any date prior to the PTMI
Put Date on which a Tranche 1 Reduction is required
hereunder, the Borrowers will cause to be delivered to the
Administrative Agent, acting on behalf of the Tranche 1
Lenders, a PTMI Collateralized Letter of Credit issued
hereunder, or cash for deposit in the PTMI Cash Collateral
Account (as defined below) or a combination thereof, in an
aggregate amount (including the stated amount of any such
PTMI Collateralized Letter of Credit) equal to the amount of
such required Tranche 1 Reduction. Whenever and on each
occasion that the Borrowers satisfy their obligations under
the preceding sentence by causing a PTMI Collateralized
Letter of Credit to be issued, they will prepay outstanding
Loans of the same Class as such PTMI Collateralized Letter
of Credit by an aggregate amount equal to the aggregate
stated amount of such PTMI Collateralized Letter of Credit.
Any such PTMI Collateralized Letter of Credit will be held
by the Administrative Agent until the PTMI Put Date, on
which date the Administrative Agent will effect a drawing of
the full amount thereof and will apply the proceeds of such
drawing, promptly after receipt, to the prepayment of the
Tranche 1 Term Loans of the Tranche 1 Lenders, pro rata in
accordance with the outstanding principal amounts thereof.
In the event that any condition to the issuance of any PTMI
Collateralized Letter of Credit under Section 4.01 or
Section 4.02 cannot be satisfied, the Borrowers will
transfer to the Administrative Agent, acting on behalf of
the Tranche 1 Lenders, cash in an aggregate amount equal to
the amount of such required Tranche 1 Reduction for deposit
in the PTMI Cash Collateral Account, as described below.
Any such cash will be transferred to the Administrative
Agent in immediately available funds for deposit in a cash
collateral account with the Administrative Agent and in the
name of the Administrative Agent and for the benefit of the
Tranche 1 Lenders (the "PTMI Cash Collateral Account").
Such deposits (and any other deposits of funds into such
account) shall be held by the Administrative Agent as
collateral for the payment of the Tranche 1 Term Loans and
interest thereon (but not any other obligations hereunder),
and the Borrowers hereby grant the Administrative Agent, for
the benefit of the Tranche 1 Lenders, a security interest in
all funds and investments from time to time in the PTMI Cash
Collateral Account, and all earnings thereon and proceeds
thereof, to secure such obligations. The Administrative
Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits
in Permitted Investments, which investments shall be made at
the directions of the Borrowers, subject to approval by the
Administrative Agent, and in any event at the Borrowers'
risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall
accumulate in such account. On the Tranche 1 Drawdown Date,
the Administrative Agent shall, and is hereby directed by
the Borrowers to, convert all investments in the PTMI Cash
Collateral Account into cash and apply the full amounts of
cash in the PTMI Cash Collateral Account to the prepayment
of Tranche 1 Term Loans made by Tranche 1 Lenders on such
date, pro rata in accordance with the outstanding principal
amounts thereof.
(h) In the event that any Reduction under this
Section requires the prepayment of outstanding Loans of FCX
as a Borrower hereunder and to the extent prepayment of such
Loans is to be effected, in whole or in part, with the
payment by PTFI of a cash dividend to FCX, then PTFI will
declare and pay such a dividend in an amount which, after
giving effect to the receipt by minority stockholders in
PTFI of their pro rata share of such dividend and to the
payment of any applicable withholding taxes in respect of
such dividend, will provide funds to FCX sufficient to
enable it, together with other funds available to FCX (other
than payments of intercompany notes), to make such
prepayment and effect the Reductions required hereby;
provided, however, that the aggregate amount of Reductions
required hereunder in respect of any Prepayment Event or any
application of Excess Cash Flow, when taken together with
the amount of such dividends paid to minority stockholders
and such withholding taxes, will not exceed the aggregate
amount of the Net Proceeds attributable to such Prepayment
Event or of such Excess Cash Flow, as the case may be, (it
being understood that such Net Proceeds or Excess Cash Flow
in excess of Reductions required to be made after giving
effect to limitations imposed pursuant to paragraph (e) of
this Section will be used to pay such dividend or
withholding taxes to the extent necessary to effect the full
amount of Reductions otherwise required hereby). If the
foregoing provisions of this paragraph require a reduction
in the aggregate amount of the Reductions otherwise required
by paragraph (c) or (d) of this Section, PTFI will pay a
dividend to FCX in such amount as will permit such reduced
amounts of Reductions of the Facilities to be applied on a
pro rata or other basis in accordance with the provisions of
paragraph (f) of this Section. For purposes of the
foregoing, (i) FCX's pro rata share of any dividend paid to
a Person other than FCX in which FCX holds or Controls an
Equity Interest will be deemed to have been received by FCX
and not to be a dividend paid to a minority stockholder,
(ii) FCX will take such actions as may be necessary to cause
any such Person to pay a dividend to its stockholders,
including FCX, in the amount of any dividends received by
such Person from PTFI, and (iii) and other dividends from
PTFI to any Person other than FCX which are paid or
delivered to, or applied to Indebtedness owed to, FCX
(including, for example, to repay amounts owed in respect of
Interest Shortfall Loans or any note referred to in clause
(iii) of the definition of "Qualifying PTMI/FI Sale
Transaction") will be applied by FCX to the required
Reduction and will not be deemed to be a dividend paid to a
minority stockholder of PTFI.
(i) Notwithstanding any other provision of this
Agreement, if the ratings on the Index Debt are upgraded to
BB- or better by S&P or Ba3 or better by ▇▇▇▇▇'▇, then the
Borrowers will, not later than the 180th day after the date
of such upgrade, use commercially reasonable best efforts,
taking into account then existing market conditions, to
effect Reductions to the Facilities, pro rata in accordance
with the Facility Exposures under each Facility, so that the
total Facility Exposures are reduced to $150,000,000.
(j) Prior to any optional or mandatory prepayment
of Borrowings hereunder, the applicable Borrower shall
select the Borrowing or Borrowings of the relevant Class to
be prepaid and shall specify such selection in the notice of
such prepayment pursuant to paragraph (k) of this Section.
In the event of any optional prepayment of Term Borrowings
made at a time when Term Borrowings of two or more Classes
are outstanding, the applicable Borrower shall select
Borrowings to be prepaid so that the aggregate amount of
such prepayment is allocated between each Class, pro rata
based on the aggregate principal amount of outstanding Term
Borrowings of each such Class. The Borrowers shall select
Borrowings of each Class subject to mandatory repayment in
accordance with the provisions of paragraph (f) above. If
and to the extent any Reduction relates to the Tranche A
Facility or requires prepayments of Tranche B Loans or
Tranche 1 Loans that are being effected without PTFI
declaring a dividend to its stockholders, including FCX,
such Reduction shall be made (i) in the case of Reductions
pursuant to paragraph (c), not later than the third Business
Day after the receipt of Net Proceeds from the relevant
Prepayment Event and (ii) in the case of Reductions pursuant
to paragraph (d), not later than the date of delivery of
financial statements pursuant to Section 5.01 in respect of
the Semi-Annual Period for which Excess Cash Flow is being
computed and, in any event, not later than 50 days (or 95
days, in the case of each second Semi-Annual Period in any
year) after the last day of such Semi-Annual Period. If and
to the extent any Reduction involves prepayments of Tranche
B Loans or Tranche 1 Loans that are being effected by the
declaration and payment by PTFI of a dividend to its
stockholders, including FCX, such Reduction shall be made
(i) in the case of Reductions pursuant to paragraph (c),
within ten Business Days (or, in the case of Reductions made
with the proceeds of dividends paid to PTII, 20 Business
Days) after the receipt of Net Proceeds from the relevant
Prepayment Event and (ii) in the case of Reductions pursuant
to paragraph (d), not later than ten Business Days after the
date of delivery of financial statements pursuant to Section
5.01 in respect of the Semi-Annual Period for which Excess
Cash Flow is being computed and, in any event, not later
than 60 days (or 105 days, in the case of each second Semi-
Annual Period in any year) after the last day of such Semi-
Annual Period.
(k) The applicable Borrower shall notify the
Administrative Agent by telephone (confirmed by telecopy)
of any prepayment hereunder (i) in the case of prepayment of
a Eurodollar Borrowing, not later than 11:00 a.m., New York
City time, three Business Days before the date of prepayment
or (ii) in the case of prepayment of an ABR Borrowing, not
later than 11:00 a.m., New York City time, one Business Day
before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the
principal amount of each Borrowing or portion thereof to be
prepaid, whether and to what extent any such optional
prepayment of Revolving Loans constitutes a Non-Flow Paydown
with Non-Flow Funds other than Excess Cash Flow, and, in the
case of a mandatory prepayment, shall set forth a reasonably
detailed calculation of the amount of such prepayment and
shall specify what portion, if any, of such prepayment
constitutes Exempted Reductions which the Borrowers have
elected to make pursuant to paragraph (e) of this Section;
provided that, if a notice of optional prepayment is given
in connection with a conditional notice of termination of
the Revolving Commitments as contemplated by Section
2.07(e), then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with
Section 2.07(e). Promptly following receipt of any such
notice, the Administrative Agent shall advise the applicable
Lenders of the contents thereof. Each partial prepayment of
any Borrowing shall be in an amount that would be permitted
in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully
the required amount of a mandatory prepayment. Each
prepayment of a Borrowing shall be applied ratably to the
Loans included in the prepaid Borrowing. Prepayments shall
be accompanied by accrued interest to the extent required by
Section 2.12.
SECTION 2.11. Fees. (a) The Borrowers agree to
pay to the Administrative Agent for the account of each
Revolving Lender a commitment fee, which shall accrue at the
Applicable Rate on the daily unused amount of each Revolving
Commitment of such Revolving Lender during the period from
and including the Effective Date to but excluding the date
on which the applicable Revolving Commitment terminates.
Accrued commitment fees shall be payable in arrears on the
last day of March, June, September and December of each
year, in respect of any Class of Revolving Commitments, and
on the date on which the Revolving Commitments of such Class
terminate, commencing on the first such date to occur after
the date hereof. All commitment fees shall be computed on
the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but
excluding the last day). For purposes of computing
commitment fees with respect to Revolving Commitments, a
Revolving Commitment of a Lender shall be deemed to be used
to the extent of the outstanding Revolving Loans and LC
Exposure of such Lender.
(b) The Borrowers agree to pay (i) to the
Administrative Agent for the account of each Revolving
Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at
the same Applicable Rate as interest on Eurodollar Revolving
Loans on the daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on
which such Lender's Revolving Commitment terminates and the
date on which such Lender ceases to have any LC Exposure,
and (ii) to the Issuing Bank a fronting fee, which shall
accrue at the rate or rates per annum separately agreed upon
between the Borrowers and the Issuing Bank on the average
daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to
but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to
be any LC Exposure, as well as the Issuing Bank's standard
fees with respect to the issuance of any Letter of Credit or
processing of drawings thereunder. Participation fees and
fronting fees accrued through and including the last day of
March, June, September and December of each year shall be
payable on the third Business Day following such last day,
commencing on the first such date to occur after the
Effective Date; provided that all such fees shall be payable
on the date on which the Revolving Commitments terminate and
any such fees accruing after the date on which the Revolving
Commitments terminate shall be payable on demand. Any other
fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on
the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but
excluding the last day).
(c) The Borrowers agree to pay to the
Administrative Agent, for its own account, fees payable in
the amounts and at the times separately agreed upon between
the Borrowers and the Administrative Agent.
(d) All fees payable hereunder shall be paid on
the dates due, in immediately available funds, to the
Administrative Agent for distribution, in the case of
commitment fees, participation fees and takedown fees, to
the Lenders entitled thereto. Fees paid shall not be
refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans
comprising each ABR Borrowing shall bear interest at the
Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar
Borrowing shall bear interest at the LIBO Rate for the
Interest Period in effect for such Borrowing plus the
Applicable Rate.
(c) FCX agrees that it will, on each date on
which any payment of interest is due on loans outstanding
under the Existing PTMI Agreement ("PTMI Loans") and on the
PTMI Put Date, pay to the Administrative Agent, for the
accounts of the Tranche 1 Lenders, supplemental interest on
the Non-Collateralized Portion of the PTMI Loans of each
Tranche 1 Lender equal to the excess of (x) the amount of
interest that would be payable on such date (or of interest
that would have accrued to the PTMI Put Date, as the case
may be) on the Non-Collateralized Portion of the PTMI Loans
had they accrued interest based on an interest rate spread
equal to the relevant Applicable Rate hereunder rather than
the interest rate spreads provided for in the Existing PTMI
Agreement over (y) the amount of interest payable on such
date (or of interest accrued to the PTMI Put Date, as the
case may be) in respect of the Non-Collateralized Portion of
the PTMI Loans in accordance with the provisions of the
Existing PTMI Agreement, in each case without regard to any
default interest. For purposes hereof, the "Non-
Collateralized Portion" of each PTMI Loan of any Tranche 1
Lender on any date shall mean the principal amount of all
PTMI Loans of such Lender multiplied by a fraction (i) the
numerator of which is (x) the aggregate amount of PTMI Loans
outstanding on such date minus (y) the amount of
Collateralized PTMI Advances on such date and (ii) the
denominator of which is the aggregate amount of PTMI Loans
outstanding on such date. The Non-Collateralized Portion of
each PTMI Loan in respect of which supplemental interest is
payable hereunder will be calculated and applied in respect
of each date on which interest accrues, and adjustments
therein will be effective from and after the date of any
change in the outstanding PTMI Loans or the Collateralized
PTMI Advances (but not retroactively).
(d) Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other
amount (including supplemental interest under paragraph (c)
above) payable by either Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate
otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR
Revolving Loans as provided in paragraph (a) of this
Section.
(e) Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such
Loan and, in the case of Revolving Loans, upon termination
of the Revolving Commitments; provided that (i) interest
accrued pursuant to paragraph (d) of this Section shall be
payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan of any Class prior to the termination of the
Revolving Commitments of such Class), accrued interest on
the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the
end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest
computed by reference to the Alternate Base Rate at times
when the Alternate Base Rate is based on the Prime Rate
shall be computed on the basis of a year of 365 days (or 366
days in a leap year), and in each case shall be payable for
the actual number of days elapsed (including the first day
but excluding the last day). The applicable Alternate Base
Rate or LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.13. Alternate Rate of Interest. If
prior to the commencement of any Interest Period for a
Eurodollar Borrowing:
(a) the Administrative Agent determines (which
determination shall be conclusive absent manifest
error) that adequate and reasonable means do not exist
for ascertaining the LIBO Rate for such Interest
Period; or
(b) the Administrative Agent is advised by the
Required Lenders that the LIBO Rate for such Interest
Period will not adequately and fairly reflect the cost
to such Lenders of making or maintaining their Loans
included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to
the Borrowers and the Lenders by telephone or telecopy as
promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrowers and the Lenders
that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the
conversion of any Borrowing to, or continuation of any
Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.14. Increased Costs. (a) If any
Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets
of, deposits with or for the account of, or credit
extended by, any Lender (except any such reserve
requirement reflected in Eurodollar Reserve
Requirements) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or
the London interbank market any other condition
affecting this Agreement or Eurodollar Loans made by
such Lender or any Letter of Credit or participation
therein;
and the result of any of the foregoing shall be to increase
the cost to such Lender of making or maintaining any
Eurodollar Loan (or of maintaining its obligation to make
any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received
or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or otherwise), in each case
by or in an amount which such Lender in its sole judgment
deems material in the context of this Agreement and its
Loans or participations in Letters of Credit hereunder, then
the relevant Borrower will pay to such Lender or the Issuing
Bank such additional amount or amounts as will compensate
such Lender for such additional costs incurred or reduction
suffered.
(b) If any Lender shall give notice to the
Administrative Agent and the Borrowers at any time to the
effect that Eurodollar Reserve Requirements are, or are
scheduled to become, effective and that such Lender is or
will be generally subject to such Eurodollar Reserve
Requirements as a result of which such Lender will incur
additional costs, then such Lender shall, for each day from
the later of the date of such notice and the date on which
such Eurodollar Reserve Requirements become effective, be
entitled to additional interest on each Eurodollar Loan made
by it at a rate per annum determined for such day (rounded
upward, if necessary, to the nearest 100th of 1%) equal to
the remainder obtained by subtracting (i) the LIBO Rate for
such Eurodollar Loan from (ii) the rate obtained by dividing
such LIBO Rate by a percentage equal to 100% minus the then-
applicable Eurodollar Reserve Requirements. Such additional
interest will be payable in arrears to the Administrative
Agent, for the account of such Lender, on each Interest
Payment Date relating to such Eurodollar Loan and on any
other date when interest is required to be paid hereunder
with respect to such Loan. Any Lender which gives notice
under this paragraph (b) shall promptly withdraw such notice
(by written notice of withdrawal given to the Administrative
Agent and the Borrowers) in the event Eurodollar Reserve
Requirements cease to apply to it or the circumstances
giving rise to such notice otherwise cease to exist.
(c) If any Lender or the Issuing Bank determines
that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any,
as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender or
the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have
achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies
and the policies of such Lender's or the Issuing Bank's
holding company with respect to capital adequacy), by an
amount which such Lender in its sole judgment deems to be
material in the context of this Agreement and its Loans,
Commitments and participations in Letters of Credit
hereunder, then from time to time the Borrowers will pay to
such Lender or the Issuing Bank, such additional amount or
amounts as will compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's holding company for
any such reduction suffered.
(d) A certificate of a Lender or the Issuing Bank
setting forth the amount or amounts necessary to compensate
such Lender or the Issuing Bank or its holding company, as
the case may be, as specified in paragraph (a) or (c) of
this Section shall be delivered to the Borrowers and shall
be conclusive absent manifest error. The Borrowers (or the
Borrower in respect of the Loan or Letter of Credit, if any,
to which such compensation request is attributable) shall
pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
(e) Failure or delay on the part of any Lender to
demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Bank's
right to demand such compensation; provided that the
Borrowers shall not be required to compensate a Lender or
the Issuing Bank pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the
date that such Lender or the Issuing Bank, as the case may
be, notifies the Borrowers of the Change in Law giving rise
to such increased costs or reductions and of such Lender's
or the Issuing Bank's intention to claim compensation
therefor; provided further that, if the Change in Law giving
rise to such increased costs or reductions is retroactive,
then the 180-day period referred to above shall be extended
to include the period of retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the
event of (a) the payment of any principal of any Eurodollar
Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of
Default or the requirements of Section 2.10), (b) the
conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure
to borrow, convert, continue or prepay any Revolving Loan or
Term Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be
revoked under Section 2.10(h) and is revoked in accordance
therewith), or (d) the assignment of any Eurodollar Loan
other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrowers pursuant
to Section 2.18, then, in any such event, the Borrowers
shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be
the excess, if any, of (i) the amount of interest which
would have accrued on the principal amount of such Loan had
such event not occurred, at the LIBO Rate that would have
been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for
such period at the interest rate which such Lender would bid
were it to bid, at the commencement of such period, for
dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is
entitled to receive pursuant to this Section shall be
delivered to the Borrowers and shall be conclusive absent
manifest error. The relevant Borrower shall pay such Lender
the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments
by or on account of any obligation of either Borrower
hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if either Borrower shall
be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required
deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent,
Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, each Borrower shall pay any
Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Each Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as
the case may be, on or with respect to any payment by or on
account of any obligation of a Borrower hereunder or under
any other Loan Document (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to a
Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Bank, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by either Borrower to a
Governmental Authority, such Borrower shall deliver to the
Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to
the Administrative Agent.
(e) Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law
of the jurisdiction in which either Borrower is located, or
any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to
the applicable Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation
prescribed by applicable law or reasonably requested by such
Borrower as will permit such payments to be made without
withholding or at a reduced rate, provided that such Foreign
Lender has received written notice from such Borrower
advising it of the availability of such exemption or
reduction and supplying all applicable documentation.
(f) PTFI shall pay to the relevant Governmental
Authority when due all Indonesian Taxes in accordance with
applicable law.
(g) PTFI shall indemnify the Administrative
Agent, the FI Trustee, each Lender (or permitted assignee or
Participant) and the Issuing Bank against, and shall
reimburse the Administrative Agent, the FI Trustee, each
Lender (or permitted assignee or Participant) and the
Issuing Bank upon demand for, the full amount of any
Indonesian Taxes paid by the Administrative Agent, the FI
Trustee, such Lender (or permitted assignee or Participant)
or the Issuing Bank, and any loss, liability, claim or
expense (including interest, penalties, fines, surcharges
and legal fees) which the Administrative Agent, the FI
Trustee, such Lender (or permitted assignee or Participant)
or the Issuing Bank may incur at any time arising out of or
in connection with any failure of PTFI to make any payments
of Indonesian Taxes, whether or not such Indonesian Taxes
were correctly or legally imposed or asserted by the
relevant Governmental Authority; provided, however, that no
permitted assignee or Participant of any Lender shall be
entitled to receive any greater payment under this Section
than such Lender 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 delivered to PTFI by a Lender (or permitted
assignee or Participant), the FI Trustee, the Issuing Bank
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 Lender (or permitted assignee or
Participant), the FI Trustee, the Issuing Bank or the
Administrative Agent, as the case may be, makes written
demand therefor.
(h) Except as otherwise expressly provided in
paragraph (k) below, all payments on account of the
principal of or interest on the Loans made to PTFI, any
promissory notes of PTFI issued hereunder and all other
amounts payable by PTFI to or for the account of any Lender
(or permitted assignee or Participant), the Issuing Bank or
the Administrative Agent hereunder (including amounts
payable under Section 2.16(f) or 2.16(g)) 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 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 PTFI. In the event that PTFI 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, any other Loan Document or
any promissory note issued hereunder, PTFI 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
2.16), to enable each Lender (or permitted assignee or
Participant), the Issuing Bank, the FI Trustee or the
Administrative Agent to receive from PTFI on the due date
thereof, an amount equal to the full amount stated to be
payable to such Lender (or permitted assignee or
Participant), the Issuing Bank, the FI Trustee or the
Administrative Agent under this Agreement, any other
applicable Loan Document or any promissory note issued
hereunder.
(i) Without in any way affecting PTFI's
obligations under the other provisions of this Section 2.16,
PTFI 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, as soon as
practicable and in any event not later than 90 days after
the date on which such payment is made, and PTFI shall, at
the request of any Lender (or permitted assignee or
Participant), the Issuing Bank, the FI Trustee or the
Administrative Agent, promptly furnish to such Lender (or
permitted assignee or Participant), the Issuing Bank, the FI
Trustee or the Administrative Agent any other information,
documents and receipts that such Lender (or permitted
assignee or Participant), the Issuing Bank, 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.
(j) PTFI will notify the Lenders (through the
Administrative Agent) promptly upon becoming aware of the
application or imposition, or scheduled future application
or imposition, of Indonesian Taxes; and each Lender (if not
theretofore notified by PTFI) will notify PTFI of any such
application or imposition which becomes known to its
officers then supervising the Loans of such Lender 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 Lender which would give rise to the
application or imposition of Indonesian Taxes.
(k) Each Lender (or permitted assignee or
Participant) having its principal office and applicable
lending office outside of Indonesia (a "Non-Indonesian
Lender") shall use reasonably diligent efforts to deliver to
PTFI appropriate forms, duly completed, evidencing such Non-
Indonesian Lender's entitlement (if any) under any
applicable tax treaty to a reduced rate of withholding of
Indonesian Taxes with respect to payments of interest on
Loans of such Non-Indonesian Lender (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 (A) the date hereof or (B) in the case of
any such Non-Indonesian Lender that is a permitted assignee
or Participant, the date such Non-Indonesian Lender becomes
a permitted assignee or Participant. Following delivery by
a Non-Indonesian Lender to PTFI of the appropriate form
referenced in the preceding sentence of this Section
2.16(k), duly completed, PTFI is authorized to file such
form with the appropriate Indonesian taxing authorities in
order to obtain a reduced rate of withholding of Indonesian
Taxes with respect to payments of interest on Loans of such
Non-Indonesian Lender.
Each Non-Indonesian Lender shall use reasonably
diligent efforts to deliver to PTFI 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 of Indonesian Taxes with respect to
payments of interest on Loans of such Non-Indonesian Lender
on or by the 90th day following the date on which PTFI 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); provided, 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 the requirements of this Section 2.16(k) and the
effect of such failure is to cause the rate of withholding
of Indonesian Taxes 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 PTFI
pursuant to this Section 2.16 shall be computed as if such
certificates, forms or other documents had been so
delivered.
(l) Nothing contained in this Section 2.16 shall
require the Administrative Agent, the FI Trustee, the
Issuing Bank or any Lender (or permitted assignee or
Participant) to make available any of its income tax returns
or any other information that it deems to be confidential or
proprietary.
SECTION 2.17. Payments Generally; Pro Rata
Treatment; Sharing of Set-offs. (a) Each Borrower shall
make each payment required to be made by it hereunder or
under any other Loan Document (whether of principal,
interest, fees or reimbursements of LC Disbursements, or of
amounts payable under Section 2.14, 2.15 or 2.16 or
otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no
such time is expressly required, prior to 12:00 noon, New
York City time), on the date when due, in immediately
available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have
been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be
made directly to the Issuing Bank as expressly provided
herein and except that payments pursuant to Sections 2.14
(other than paragraph (b) thereof), 2.15, 2.16 and 10.03
shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent
shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a
Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments under each
Loan Document shall be made in dollars.
(b) If at any time insufficient funds are
received by and available to the Administrative Agent to pay
fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such
funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal
and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right
of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its
Revolving Loans, Term Loans or participations in LC
Disbursements resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its
Revolving Loans, Term Loans and participations in LC
Disbursements and accrued interest thereon than the
proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash
at face value) participations in the Revolving Loans, Term
Loans and participations in LC Disbursements of other
Lenders to the extent necessary so that the benefit of all
such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Term
Loans and participations in LC Disbursements; provided that
(i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered,
such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall
not be construed to apply to any payment made by either
Borrower pursuant to and in accordance with the express
terms of this Agreement (including, without limitation, the
payment of Tranche 1 Term Loans on or after the PTMI Put
Date with the proceeds of PTMI Collateralized Letter of
Credit drawings or with funds from the PTMI Cash Collateral
Account) or any payment obtained by a Lender as
consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC
Disbursements to any assignee or participant, other than to
such Borrower or any Subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). Each
Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against either Borrower rights of
set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have
received notice from a Borrower prior to the date on which
any payment is due to the Administrative Agent for the
account of the Lenders or the Issuing Bank hereunder that
such Borrower will not make such payment, the Administrative
Agent may assume that such Borrower has made such payment on
such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the Issuing
Bank, as the case may be, the amount due. In such event, if
such Borrower has not in fact made such payment, then each
of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender
or the Issuing Bank with interest thereon, for each day from
and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.04(b),
2.17(d) or 10.03(c), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to
satisfy such Lender's obligations under such Sections until
all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement
of Lenders. (a) If any Lender requests compensation under
Section 2.14 (other than paragraph (b) thereof), or if
either Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.16, then such Lender shall
use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.14
or 2.16, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense
and would not otherwise be disadvantageous to such Lender.
Each Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under
Section 2.14 (other than paragraph (b) thereof), or if
either Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.16, or if any Lender
defaults in its obligation to fund Loans hereunder, then the
Borrowers may, at their sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations
under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the
Borrowers shall have received the prior written consent of
the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrowers (in the case of
all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under
Section 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a material
reduction in such compensation or payments. A Lender shall
not be required to make any such assignment and delegation
if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrowers to
require such assignment and delegation cease to apply.
SECTION 2.19. Put Agreement. Notwithstanding
anything to the contrary contained in the Put Agreement, if
a Put Event occurs, then not later than the second Business
Day thereafter, FCX will purchase and assume the PTMI Loan
Rights for a purchase price equal to the "Put Price" (as
defined in the Put Agreement). Such purchase and assumption
will, except as otherwise specifically contemplated hereby,
be effected pursuant to and in accordance with the
provisions of the Put Agreement and will be deemed to be a
purchase under Section 3 of the Purchase Agreement. The
PTMI Security Agent will not be entitled to exercise its
rights under Section 2 of the Put Agreement after the
occurrence of a Put Event unless FCX has defaulted in its
obligation to consummate the purchase and assumption of the
PTMI Loan Rights at the time and in the manner required
hereby. Each of the Tranche 1 Lenders, the PTMI Security
Agent and FCX agrees that the provisions of this Section
will be deemed an amendment of the Put Agreement; provided,
however, that nothing in this Section shall be deemed to
constitute a waiver by FCX of any rights it may have under
this Agreement or otherwise against any Tranche 1 Lender
that defaults in its obligation under this Agreement to make
Tranche 1 Term Loans to FCX.
ARTICLE III
Representations and Warranties
Each of FCX and PTFI represents and warrants to
the Lenders that:
SECTION 3.01. Organization; Powers. Each
Borrower and each of its Restricted Subsidiaries is duly
organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as
now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is
qualified to do business in, and is in good standing in,
every jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The
Transactions to be entered into by each Loan Party are
within such Loan Party's corporate powers and have been duly
authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed
and delivered by each Borrower and constitutes, and each
other Loan Document to which any Loan Party is to be a
party, when executed and delivered by such Loan Party, will
constitute, a legal, valid and binding obligation of such
Loan Party, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a
proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No
Conflicts. The Transactions (a) do not require any consent
or approval of, registration or filing with, or any other
action by, any Governmental Authority, except such as have
been obtained or made and are in full force and effect and
except filings necessary to perfect Liens created under the
Loan Documents, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational
documents of either Borrower or any of its Restricted
Subsidiaries or any order of any Governmental Authority, (c)
will not violate or result in a default under any indenture,
agreement or other instrument binding upon either Borrower
or any of its Subsidiaries or its assets, or give rise to a
right thereunder to require any payment to be made by either
Borrower or any of its Restricted Subsidiaries and (d) will
not result in the creation or imposition of any Lien on any
asset of either Borrower or any of its Restricted
Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material
Adverse Change. (a) The Borrowers have heretofore
furnished to the Lenders FCX's consolidated balance sheet
and statements of income, stockholders' equity and cash
flows (i) as of and for the fiscal year ended December 31,
2000, reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public
accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended June 30, 2001,
certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the
financial position and results of operations and cash flows
of FCX and its consolidated Subsidiaries as of such dates
and for such periods in accordance with GAAP, subject to
year-end audit adjustments and the absence of footnotes in
the case of the statements referred to in clause (ii) above.
(b) Except as disclosed in the financial
statements referred to above or the notes thereto or in the
Confidential Information Materials and except for the
Disclosed Matters, after giving effect to the Transactions,
neither Borrower nor any of the Restricted Subsidiaries has,
as of the Effective Date, any material contingent
liabilities, unusual long-term commitments or unrealized
losses.
(c) Since December 31, 2000, there has been no
material adverse change in (a) the business, assets,
operations, prospects or condition, financial or otherwise,
of FCX and its Subsidiaries, taken as a whole, or of PTFI
and its Subsidiaries, taken as a whole, including, without
limitation, changes in ratings of debt of either Borrower
that have a material adverse effect on such prospects, (b)
the ability of any Loan Party to perform any of its
obligations under any Loan Document or (c) the rights of or
benefits available to the Lenders under any Loan Document.
SECTION 3.05. Properties. (a) Each of the
Borrowers and each of the Restricted Subsidiaries has good
title to, or valid leasehold interests in, all its real and
personal property material to its business, except for Liens
permitted by Section 6.02.
(b) Each Borrower and each of the Restricted
Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by
the Borrowers and the Restricted Subsidiaries does not
infringe upon the rights of any other Person, except for any
such infringements that, individually or in the aggregate,
could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.06. Litigation and Environmental
Matters. (a) There are no actions, suits or proceedings by
or before any arbitrator or Governmental Authority pending
against or, to the knowledge of either Borrower, threatened
against or affecting either Borrower or any of its
Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if
adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material
Adverse Effect (other than the Disclosed Matters) or (ii)
that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except
with respect to any other matters that, individually or in
the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, neither Borrower nor any of its
Subsidiaries (i) has failed to comply with any applicable
Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any
Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv)
knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has
been no change in the status of the Disclosed Matters that,
individually or in the aggregate, has resulted in, or
materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and
Agreements. Each Borrower and its Subsidiaries is in
compliance in all material respects with all laws,
regulations and orders of any Governmental Authority
applicable to it or its property and all indentures,
agreements (including without limitation, in the case of
PTFI, the Contract of Work) and other instruments binding
upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. Schedule
3.07 sets forth all such significant agreements and
commitments with Governmental Authorities in effect as of
the Effective Date. No Default has occurred and is
continuing.
SECTION 3.08. Investment and Holding Company
Status. Neither Borrower nor any of its Subsidiaries is (a)
an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b)
a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each Borrower and its
Subsidiaries has timely filed or caused to be filed all
material Tax returns and reports required to have been filed
by it and has paid or caused to be paid all Taxes required
to have been paid by it, except any Taxes that are being
contested in good faith by appropriate proceedings and for
which such Borrower or such Subsidiary, as applicable, has,
to the extent required by GAAP, set aside on its books
adequate reserves.
SECTION 3.10. ERISA. No ERISA Event has occurred
or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected
to result in a Material Adverse Effect. The present value
of all accumulated benefit obligations under each Plan
(based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the
date of the most recent financial statements reflecting such
amounts, exceed by more than $10,000,000 the fair market
value of the assets of such Plan, and the present value of
all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the
date of the most recent financial statements reflecting such
amounts, exceed by more than $10,000,000 the fair market
value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. Neither the
Confidential Information Materials nor any of the other
reports, financial statements, certificates or other
information furnished by any Loan Party or on behalf of, and
with the authorization of, any Loan Party to the
Administrative Agent or any Lender in connection with the
negotiation of this Agreement or any other Loan Document or
delivered hereunder or thereunder (as modified or
supplemented by other information so furnished) contains any
material misstatement of fact 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; provided that, with respect to projected
financial information, each Borrower represents only that
such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets
forth the name of, and the ownership interest of each
Borrower and each Subsidiary in, each Subsidiary of such
Borrower and identifies each Subsidiary as a Restricted
Subsidiary or an Unrestricted Subsidiary, in each case as of
the Effective Date.
SECTION 3.13. Insurance. Schedule 3.13 sets
forth a description of all material insurance maintained by
or on behalf of each Borrower and its Restricted
Subsidiaries as of the Effective Date. As of the Effective
Date, all premiums in respect of such insurance have been
paid and such insurance is in full force and effect. Each
Borrower believes that the insurance maintained by or on
behalf of such Borrower and its Restricted Subsidiaries is
adequate.
SECTION 3.14. Labor Matters. As of the Effective
Date, there are no strikes, lockouts or slowdowns against
either Borrower or any Restricted Subsidiary pending or, to
the knowledge of either Borrower, threatened. The hours
worked by and payments made to employees of each Borrower
and the Subsidiaries have not been in violation of the Fair
Labor Standards Act or any other applicable Federal, state,
local or foreign law dealing with such matters. All
payments due from either Borrower or any Subsidiary, or for
which any claim may be made against such Borrower or any
Subsidiary, on account of wages and employee health and
welfare insurance and other benefits, have been paid or
accrued as a liability on the books of such Borrower or such
Subsidiary. The consummation of the Transactions will not
give rise to any right of termination or right of
renegotiation on the part of any union under any collective
bargaining agreement to which either Borrower or any
Subsidiary is bound.
SECTION 3.15. Security Documents. The Liens
created by (a) the FI Security Documents, as amended by the
FI Security Documents Amendments, are in full force and
effect and constitute first priority (except for Liens
expressly permitted by Section 6.02), upon execution of the
Security Document Amendments (and, in the case of the FI
Security Documents amended and restated by the Fiduciary
Transfer Amendment and Restatement, the Fiduciary Assignment
Amendment and Restatement, the JAA Fiduciary Transfer
Amendment and Restatement or the Lender Fiduciary Assignment
Amendment and Restatement, upon registration thereof at the
Fiduciary Registration Office - Jakarta Region), perfected
security interests in favor of the FI Trustee, the Security
Agent or the JAA Security Agent, as the case may be, for the
ratable benefit of the Secured Parties (other than RTZ-IIL),
in the property and assets stated to be subject to each such
FI Security Document, as so amended, (b) upon execution
thereof and upon service of notice of the pledge on the
party against whom the pledged rights must be exercised, the
FCX Pledge Agreements will be in full force and effect and
will constitute first priority, perfected security interests
in favor of the Security Agent for the ratable benefit of
the Secured Parties (other than RTZ-IIL) in (i) the Pledged
PTFI Shares, the FCX Pledged PTII Shares and the
Indebtedness owing to FCX pledged thereunder and (ii) on and
after the PTMI Put Date, in all the loans under the Existing
PTMI Agreement and all of FCX's rights against PTMI arising
as a result of the exercise of the Put Agreement, including
the Pledged PTII Shares and the other security pledged in
connection with the Existing PTMI Agreement and (c) upon
execution thereof, the PTFI Pledge Agreement will be full
force and effect and will constitute first priority (except
for Liens expressly permitted by Section 6.02), perfected
security interests in favor of the Security Agent for the
ratable benefit of the Secured Parties (other than RTZ-IIL)
in the Indebtedness owing to PTFI pledged thereunder.
SECTION 3.16. Assigned Agreements. Schedule 3.16
(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). PTFI is not in
default in any material respect in its obligations under any
Assigned Agreement nor, to its knowledge, is any
counterparty to any such agreement in default in its
obligations in any respect that could materially and
adversely affect the ability of PTFI to perform its
obligations under the Loan Documents.
SECTION 3.17. Federal Reserve Regulations. No
part of the proceeds of the Loans will be used, whether
directly or indirectly, for any purpose which entails a
violation of, or which is inconsistent with, Regulations U,
T or X of the Board. As of each date when this
representation is made or deemed made, not more than 25% of
the value of the assets subject to the provisions of Section
6.02 and 6.05 will consist of Margin Stock (as defined in
Regulation U of the Board).
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The amendments and
restatements of the Existing FCX Agreement and the Existing
FCX/PTFI Agreement in the form of this Agreement and the
obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following
conditions is satisfied (or waived in accordance with
Section 10.02):
(a) The Administrative Agent (or its counsel)
shall have received from each party hereto or to any
other Loan Document either (i) a counterpart of this
Agreement and each other Loan Document signed on behalf
of such party or (ii) written evidence satisfactory to
the Administrative Agent (which may include telecopy
transmission of a signed signature page of this
Agreement and such other Loan Document) that such party
has signed a counterpart of this Agreement and such
other Loan Document.
(b) The Administrative Agent shall have received
a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the
Effective Date) of each of (i) Jones, Walker, ▇▇▇▇▇▇▇▇,
Poitevant, Carrere & ▇▇▇▇▇▇▇, L.L.P., U.S. counsel for
the Borrowers, substantially in the form of Exhibit B-
1, (ii) Indonesian counsel for the Borrowers,
substantially in the form of Exhibit B-2, and (iii)
Indonesian counsel for the Lenders, substantially in
the form of Exhibit B-3, and, in the case of each such
opinion required by this paragraph, covering such other
matters relating to either Borrower, the Loan Documents
or the Transactions as the Administrative Agent shall
reasonably request. Each Borrower hereby requests the
counsel referred to in clauses (i) and (ii) above, and
each Lender hereby requests the counsel referred to in
clause (iii), to deliver such opinions.
(c) The Administrative Agent shall have received
such documents and certificates as the Administrative
Agent or its counsel may reasonably request relating to
the organization, existence and good standing of each
Loan Party, the authorization of the Transactions and
any other legal matters relating to the Borrowers, the
Loan Documents or the Transactions, all in form and
substance satisfactory to the Administrative Agent and
its counsel.
(d) The Administrative Agent shall have received
a certificate, dated the Effective Date and signed by
the President, a Vice President or a Financial Officer
of each Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of
Section 4.02.
(e) The Administrative Agent shall have received
all fees and other amounts due and payable on or prior
to the Effective Date under the Existing Agreements or
this Agreement, including, (i) all commitment fees
accrued prior to the Effective Date in respect of the
lending commitments under the Existing PTFI Agreement
and the Existing FCX/PTFI Agreement that exceed the
Tranche A Commitments and the Tranche B Commitments,
respectively, (ii) all fees separately agreed to be
payable to ▇.▇. ▇▇▇▇▇▇ Securities by the Borrowers and
(iii) to the extent invoiced, reimbursement or payment
of all out-of-pocket expenses (including fees, charges
and disbursements of counsel) required to be reimbursed
or paid by either Borrower under the Existing
Agreements or this Agreement or under any other Loan
Document.
(f) The Collateral and Guarantee Requirement
shall have been satisfied and the Administrative Agent
shall have received a completed Perfection Certificate
dated the Effective Date and signed by an executive
officer or Financial Officer of each Borrower, together
with all attachments contemplated thereby, including
the results of a search of the Uniform Commercial Code
(or equivalent) filings made with respect to the Loan
Parties in the jurisdictions contemplated by the
Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such
financing statements (or similar documents) are
permitted by Section 6.02 or have been released. Each
of the Lender Security Document Amendments and the FI
Security Document Amendments shall have been duly
executed and delivered and the Lender Security
Documents and the FI Security Documents, in each case
as amended thereby, shall be in full force and effect.
(g) The Administrative Agent shall have received
evidence that the insurance required by Section 5.07
and the Security Documents is in effect.
(h) The Lenders shall have received, and shall be
satisfied with the results of, an environmental report
prepared by ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ dated December 1999 with
respect to any Environmental Liabilities that may be
attributable to such properties or operations as have
been specified by the Administrative Agent for review.
(i) No judgment, order or decree shall be
outstanding, and no action, suit, litigation or other
proceeding shall have been taken by or before any
Governmental Authority, that has or is reasonably
likely to have the effect of restraining, preventing or
imposing materially adverse conditions upon the
Transactions, or the full and timely performance by
either Borrower of its obligations under any Loan
Document.
(j) All consents and approvals required to be
obtained from any Governmental Authority or other
Person in connection with the Transactions shall have
been obtained, and all applicable waiting periods and
appeal periods shall have expired, in each case without
the imposition of any burdensome conditions.
(k) FCX shall have caused PTMI Collateralized
Letters of Credit to be issued, posted cash collateral
in the PTMI Cash Collateral Account or effected a
combination of the foregoing, in each case pursuant to
the provisions of Section 2.10(g), in an aggregate
amount equal to $104,370,905.
(l) The FI Trustee shall have received opinions
to the effect that it does not have to qualify to do
business in Louisiana or Indonesia by virtue of the
Loan Documents or the activities contemplated thereby.
(m) To the extent required pursuant to the terms
of the FI Intercreditor Agreement, the FI Trust
Agreement and the Side Letter, in each case among PT-
Rio Tinto Indonesia and the banks under the Existing
PTFI Agreement, each Lender shall have entered into
each such document and the Administrative Agent (or its
counsel) shall have received either (i) a counterpart
of such document signed on behalf of each Lender or
(ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy
transmission of a signed signature page of such
document) that each Lender has signed a counterpart of
such document.
(n) The Lenders shall have received copies of all
agreements and commitments listed on Schedule 3.07 and
Schedule 3.16.
(o) The Borrowers shall have paid to the
Administrative Agent in immediately available funds,
for the accounts of the Lenders, an amendment fee equal
to 1.25% of each Lender's aggregate Commitments
hereunder on the Effective Date (less, in the case of
any Tranche 1 Lender, the amount of such Lender's pro
rata share of Collateralized PTMI Advances on the
Effective Date).
The Administrative Agent shall notify the Borrowers and the
Lenders of the Effective Date, and such notice shall be
conclusive and binding. Notwithstanding the foregoing, the
obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 10.02) at or prior
to 5:00 p.m., New York City time, on October 31, 2001 (and,
in the event such conditions are not so satisfied or waived,
the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation
of each Lender to make a Loan on the occasion of any
Borrowing or issue a Letter of Credit is subject to receipt
of the request therefor in accordance herewith and to the
satisfaction of the following conditions:
(a) The representations and warranties of each
Loan Party set forth in the Loan Documents shall be
true and correct in all material respects on and as of
the date of such Borrowing or issuance of such Letter
of Credit, as applicable.
(b) At the time of and immediately after giving
effect to such Borrowing or issuance of such Letter of
Credit, as applicable, no Default shall have occurred
and be continuing.
Each Borrowing or issuance of a Letter of Credit shall be
deemed to constitute a representation and warranty by each
Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been
terminated and the principal of and interest on each Loan
and all fees payable hereunder shall have been paid in full,
and all Letters of Credit shall have expired or terminated
and all LC Disbursements shall have been reimbursed, each
Borrower covenants and agrees with the Lenders, the Agents
and the FI Trustee that:
SECTION 5.01. Financial Statements and Other
Information. Each Borrower will furnish to the
Administrative Agent and each Lender:
(a) within 95 days after the end of each fiscal
year of such Borrower, (i) an audited consolidated
balance sheet of each Borrower and its consolidated
Subsidiaries and related consolidated statements of
operations, stockholders' equity and cash flows as of
the end of and for such year, setting forth in each
case in comparative form the figures for the previous
fiscal year, all reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or
other independent public accountants of recognized
national standing (without a "going concern" or like
qualification or exception and without any
qualification or exception as to the scope of such
audit) to the effect that such consolidated financial
statements present fairly in all material respects the
financial condition and results of operations of such
Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently
applied and (ii) unaudited consolidating financial
statements relating to each of the financial statements
referred to in clause (i) and (iii) an unaudited
combined balance sheet of each Borrower and its
Restricted Subsidiaries, and related unaudited combined
statements of operations and cash flows as of the end
of and for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal
year, (in each case accounting for Unrestricted
Subsidiaries as investments without using the equity
method of accounting), certified by one of its
Financial Officers as presenting fairly in all material
respects the financial condition and results of
operations of such Borrower and its Restricted
Subsidiaries on a combined basis in accordance with
GAAP (except as specified above with respect to
Unrestricted Subsidiaries) consistently applied;
(b) within 50 days after the end of each of the
first three fiscal quarters of each fiscal year of such
Borrower, (i) an unaudited consolidated balance sheet
of such Borrower and its consolidated Subsidiaries and
related consolidated statements of operations,
stockholders' equity and cash flows as of the end of
and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as
presenting fairly in all material respects the
financial condition and results of operations of such
Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments
and the absence of footnotes and (ii) unaudited
consolidating financial statements relating to each of
the financial statements referred to in clause (i) and
(iii) an unaudited combined balance sheet of each
Borrower and its Restricted Subsidiaries, and related
unaudited combined statements of operations and cash
flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for
the corresponding period or periods of (or in the case
of such balance sheet, as of the end of) the previous
fiscal year (in each case accounting for Unrestricted
Subsidiaries as investments without using the equity
method of accounting), certified by one of its
Financial Officers as presenting fairly in all material
respects the financial condition and results of
operations of such Borrower and its Restricted
Subsidiaries on a combined basis in accordance with
GAAP (except as specified above with respect to
Unrestricted Subsidiaries) consistently applied,
subject to normal year-end adjustments and the absence
of footnotes;
(c) concurrently with any delivery of financial
statements under clause (a) or (b) above, a certificate
of a Financial Officer of such Borrower (i) certifying
as to whether a Default has occurred and, if a Default
has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with the
Financial Covenants, (iii) setting forth a reasonably
detailed calculation of Excess Cash Flow in respect of
the most recent fiscal quarter included, and any Semi-
Annual Period ending on the last day of such fiscal
quarter, in such financial statements and any
Discretionary Funds resulting from such Excess Cash
Flow, (iv) if such financial statements relate to a
period ending on the last day of a Semi-Annual Period
and Discretionary Funds exist with respect to Excess
Cash Flow for such Semi-Annual Period, specifying the
net amount of optional prepayments of Revolving
Borrowings since the beginning of such Semi-Annual
Period that will be deemed to constitute Non-Flow
Paydowns made with such Discretionary Funds (which
amount may not exceed the amount of such Discretionary
Funds and will be limited to repayments not previously
designated as Non-Flow Paydowns),(v) stating whether
any change in GAAP or in the application thereof has
occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such
change on the financial statements accompanying such
certificate, (vi) identifying all Subsidiaries formed
or acquired since the end of the previous fiscal
quarter and indicating whether each such Subsidiary is
a Restricted Subsidiary or a Unrestricted Subsidiary,
(vii) identifying any changes of the type described in
Section 5.03(a) that have not been previously reported
by the Borrowers (viii) identifying any Prepayment
Events that have occurred since the end of the previous
fiscal quarter and setting forth a reasonably detailed
calculation of the Net Proceeds received from
Prepayment Events since the end of such previous fiscal
quarter and any Discretionary Funds resulting from such
Net Proceeds, and (ix) identifying any Investment
pursuant to Section 6.04(j), any prepayment of
Indebtedness pursuant to Section 6.08(b)(vi) and any
Capital Expenditures made with Discretionary Funds
since the end of such previous fiscal quarter;
(d) concurrently with any delivery of financial
statements under clause (a) above, a certificate of the
accounting firm that reported on such financial
statements stating whether they obtained knowledge
during the course of their examination of such
financial statements of any Default (which certificate
may be limited to the extent required by accounting
rules or guidelines);
(e) at least 30 days prior to the commencement of
each fiscal year of such Borrower, a detailed
consolidated budget for such fiscal year (including a
projected consolidated balance sheet and related
statements of projected operations and cash flow and a
statement of projected capital expenditures, in each
case as of the end of and for such fiscal year, and
setting forth the commodity price, mine plan and other
significant mine operating assumptions used for
purposes of preparing such budget) and, promptly when
available, any significant revisions of such budget;
(f) promptly after the same become publicly
available, copies of all periodic and other reports,
proxy statements and other materials filed by either
Borrower or any Restricted Subsidiary with the
Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of
said Commission, or with any national securities
exchange, or distributed by such Borrower to its
shareholders generally, as the case may be;
(g) in the case of PTFI, (x) copies 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, (ii) by or to or
from its stockholders alleging or claiming a breach or
default relating to their shareholding in PTFI or with
respect to any other matter and (iii) by or to PTFI or
its Affiliates pursuant to any agreement governing
Material Indebtedness or any infrastructure asset
financing transaction, and (y) a copy of any proposed
amendment to the Contract of Work, Memorandum of
Understanding or such governing agreement prior to
execution and delivery thereof; and
(i) promptly following any request therefor, such
other information regarding the operations, business
affairs and financial condition of such Borrower or any
Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02. Notices of Material Events. Each
Borrower will furnish to the Administrative Agent and each
Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit
or proceeding by or before any arbitrator or
Governmental Authority against or affecting such
Borrower or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone
or together with any other ERISA Events that have
occurred, could reasonably be expected to result in
liability of such Borrower and its Subsidiaries in an
aggregate amount exceeding $25,000,000 or requires
payment by such Borrower exceeding $10,000,000 in any
year; and
(d) any other development that results in, or
could reasonably be expected to result in, a Material
Adverse Effect.
Each notice delivered under this Section shall be
accompanied by a statement of a Financial Officer or other
executive officer of the applicable Borrower setting forth
the details of the event or development requiring such
notice and any action taken or proposed to be taken with
respect thereto.
SECTION 5.03. Information Regarding Collateral.
Each Borrower will furnish to the Administrative Agent and
the Security Agent prompt written notice of any change (i)
in such Borrower's corporate name, (ii) in such Borrower's
identity or corporate structure, (iii) in such Borrower's
Federal Taxpayer Identification Number or identification
number, if any, issued to it by the jurisdiction under the
laws of which it is organized or (iv) in the jurisdiction of
such Borrower's organization. Each Borrower agrees not to
effect or permit any change referred to in the preceding
sentence unless all filings have been made under the Uniform
Commercial Code or otherwise that are required in order for
the Security Agent to continue at all times following such
change to have a valid, legal and perfected security
interest in all the Collateral. Each Borrower also agrees
promptly to notify the Administrative Agent and the Security
Agent if any material portion of the Collateral is damaged
or destroyed.
SECTION 5.04. Existence; Conduct of Business.
Each Borrower will, and will cause each of its Restricted
Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its
legal existence and the rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and
trade names material to the conduct of its business;
provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under
Section 6.03.
SECTION 5.05. Payment of Obligations. Each
Borrower will, and will cause each of its Restricted
Subsidiaries to, pay its Indebtedness and other obligations,
including Tax liabilities, before the same shall become
delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by
appropriate proceedings, (b) such Borrower or such
Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) such contest
effectively suspends collection of the contested obligation
and the enforcement of any Lien securing such obligation.
SECTION 5.06. Maintenance of Properties. Each
Borrower will, and will cause each of its Restricted
Subsidiaries to, keep and maintain all property material to
the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
SECTION 5.07. Insurance. Each Borrower will, and
will cause each of its Restricted Subsidiaries to, maintain,
with financially sound and reputable insurance companies (a)
insurance in such amounts, with such risk retention and
against such risks as are customarily maintained by
companies of established repute engaged in the same or
similar businesses operating in the same or similar
locations and (b) all insurance required to be maintained
pursuant to the Security Documents. The proceeds of any
political risk insurance of FCX or PTFI shall be applied
promptly to the prepayment of the Facilities, pro rata in
accordance with their respective Facility Exposures. Each
Borrower will furnish to the Lenders, upon request of the
Administrative Agent, information in reasonable detail as to
the insurance so maintained.
SECTION 5.08. Casualty and Condemnation. Each
Borrower (a) will furnish to the Administrative Agent, the
Security Agent and the Lenders prompt written notice of any
casualty or other insured damage to any material portion of
any Collateral or the commencement of any action or
proceeding for the taking of any Collateral or any part
thereof or interest therein under power of eminent domain or
by condemnation or similar proceeding and (b) will ensure
that the Net Proceeds of any such event (whether in the form
of insurance proceeds, condemnation awards or otherwise) are
collected and applied in accordance with the applicable
provisions of this Agreement and the other Loan Documents.
SECTION 5.09. Books and Records; Inspection and
Audit Rights. Each Borrower will, and will cause each of
its Restricted Subsidiaries to, keep proper books of record
and account sufficient to permit the preparation of
financial statements in accordance with GAAP. Each Borrower
will, and will cause each of its Restricted Subsidiaries to,
permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts
from its books and records, and to discuss its affairs,
finances and condition with its officers and independent
accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.10. Compliance with Laws; Environmental
Reports. (a) Each Borrower will, and will cause each of
its Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure
to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse
Effect.
(b) Each Borrower will comply, and cause its
Subsidiaries to comply, in all material respects with all
Environmental Laws applicable to its operations and
properties; obtain and renew all material environmental
permits necessary for its operations and properties; and
conduct any remedial actions in compliance with applicable
Environmental Laws; provided, however, that the Borrowers
and their Subsidiaries shall not 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, in accordance with
GAAP, are maintained in connection therewith. If either
Borrower is in default of its obligations under this
paragraph, the Borrowers will, at the request of the
Required Lenders through the Administrative Agent, provide
to the Lenders within 45 days after such request, at the
expense of the Borrowers, an environmental site assessment
report for the properties to which such default relates,
prepared by an environmental consulting firm acceptable to
the Administrative Agent and indicating the presence or
absence of Hazardous Materials and the estimated cost of any
compliance or remedial action in connection with such
properties.
SECTION 5.11. Use of Proceeds and Letters of
Credit. The proceeds of the Tranche 1 Term Loans will be
used only for the payment of amounts payable under the Put
Agreement. The proceeds of the Revolving Loans and Letters
of Credit (other than PTMI Collateralized Letters of Credit)
will be used for working capital or other general corporate
purposes of the Borrowers. PTMI Collateralized Letters of
Credit will be issued hereunder only to enable FCX to
fulfill its obligations under Section 2.10(g). No part of
the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations U and
X.
SECTION 5.12. Additional Subsidiaries. If any
additional Restricted Subsidiary is formed or acquired after
the Effective Date, each Borrower will, within ten Business
Days after such Subsidiary is formed or acquired, notify the
Administrative Agent, the Security Agent and the Lenders
thereof and cause the Collateral and Guarantee Requirement
to be satisfied with respect to such Restricted Subsidiary
and any intercompany Indebtedness owed by such Subsidiary to
a Borrower.
SECTION 5.13. Further Assurances. (a) Each
Borrower will execute any and all further documents,
financing statements, agreements and instruments, and take
all such further actions (including the filing and recording
of financing statements, fixture filings, mortgages, deeds
of trust and other documents), which may be required under
any applicable law, or which the Administrative Agent, the
Security Agent or the Required Lenders may reasonably
request, to cause the Collateral and Guarantee Requirement
to be and remain satisfied, all at the expense of the Loan
Parties. Each Borrower also agrees to provide to the
Administrative Agent or the Security Agent, from time to
time upon reasonable request, evidence reasonably
satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to
be created by the Security Documents.
(b) If any material assets (including any real
property or improvements thereto or any interest therein)
are acquired by PTFI after the Effective Date (other than
assets constituting Collateral under the Security Documents
that become subject to the Lien of the Security Documents
upon acquisition thereof), PTFI will notify the
Administrative Agent, the Security Agent and the Lenders
thereof, and, if requested by the Administrative Agent, the
Security Agent or the Required Lenders, PTFI will cause such
assets to be subjected to a Lien securing the Obligations
and will take such actions as shall be necessary or
reasonably requested by the Administrative Agent or the
Security Agent to grant and perfect such Liens, including
actions described in paragraph (a) of this Section, all at
the expense of the Loan Parties.
(c) PTFI 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, the Security Agent and the JAA Security Agent,
as applicable, under the FI Security Documents in accordance
with their terms, including (i) the validity and
effectiveness of the powers of attorney granted by the Surat
Kuasa, the Lender Surat Kuasa and the fiduciary transfers
effectuated by the Fiduciary Transfer, the Fiduciary
Assignment, the Lender Fiduciary Assignment and the JAA
Fiduciary Transfer and (ii) maintenance of the security
interest of the FI Trustee, the Security Agent and the JAA
Security Agent, as applicable, in the collateral required to
be subjected to the Liens created by the FI Security
Documents as a perfected first priority security interest as
provided therein, subject only to Liens expressly permitted
by Section 6.02.
(d) On the PTMI Put Date, substantially
simultaneously with the purchase and acquisition by FCX of
the PTMI Loan Rights, FCX shall pledge the PTMI Loan Rights
to, and grant a security interest in the PTMI Loan Rights in
favor of, the Administrative Agent, for the benefit of the
Lenders, under and pursuant to the FCX Pledge Agreement
(Indebtedness). After the PTMI Put Date, FCX shall not
foreclose on, or exercise any remedies with respect to or
purchase or otherwise acquire, the PTMI Collateral or any
portion thereof without the prior consent of the
Administrative Agent, except to the extent necessary to
consummate a Qualifying PTMI/FI Sale Transaction (and then
only upon consummation thereof), and upon any such
foreclosure, exercise of remedies or purchase or acquisition
made with such consent, FCX will forthwith pledge or cause
to be pledged under the FCX Pledge Agreement (Indebtedness)
any PTMI Collateral obtained by it in connection therewith.
SECTION 5.14. Concentrate Sales Agreements. PTFI
will (a) promptly advise the Administrative Agent and the FI
Trustee of any changes to the information set forth on
Schedule 3.16 and promptly assign all Concentrate Sales
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 PTFI thereunder directly to the Sales Proceeds
Account,(b) furnish to the Administrative Agent and the FI
Trustee copies of each Major Concentrate Sales Agreement
entered into after the Effective Date, and each amendment,
waiver or supplement to any Concentrate Sales Agreement
which after such amendment, waiver or supplement would for
the first time be a Major Concentrate Sales Agreement
(together with the original Concentrate Sales Agreement that
is subject of such amendment, waiver or supplement), in each
case promptly after the execution and delivery thereof, and
(c) promptly notify the Administrative Agent and the FI
Trustee of any material default under a Major Concentrate
Sales Agreement of which it has knowledge. PTFI may permit
Concentrate Sales Agreements to expire or terminate in
accordance with their terms.
SECTION 5.15. Source of Interest. PTFI (a) will
conduct its business so that interest paid on the Loans by
PTFI to any Lender (or permitted assignee or Participant)
which is not a "related person" to PTFI within the meaning
of Section 861(c)(2)(B) of the Code as in effect on the
Effective 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
Effective Date and (b) will use its best efforts (without
undue cost) to conduct its business so that interest paid on
the Loans of PTFI to any Lender (or permitted assignee or
Participant) which is not a related person to PTFI 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 (as defined in the Existing Agreements) 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).
SECTION 5.16. Certain Hedging Arrangements. At
any time that put options providing for the sale of copper
at a strike price of $.90 per pound or higher become
reasonably available to FCX or PTFI at an equivalent price
of $.02 per pound of copper or less, FCX or PTFI shall be
required to enter into one or more Hedging Agreements
covering not less than 33% of its exposure to copper prices
for any twelve-month period, it being understood that the
obligation of PTFI hereunder shall be to execute such
hedging arrangements as soon as reasonably practicable but
in an orderly manner.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated
and the principal of and interest on each Loan and all fees
payable hereunder have been paid in full, and all Letters of
Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, each Borrower
covenants and agrees with the Lenders, the Agents and the FI
Trustee that:
SECTION 6.01. Indebtedness; Certain Equity
Securities. (a) Each Borrower will not, and will not
permit any Restricted Subsidiary to, create, incur, assume
or permit to exist any Indebtedness or Attributable Debt,
except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness, including Guarantees, existing
on the date hereof and set forth in Schedule 6.01 and
extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding
principal amount thereof or result in an earlier
maturity date or decreased weighted average life
thereof;
(iii) Indebtedness of such Borrower to the other
Borrower or any Restricted Subsidiary and of any
Restricted Subsidiary to either Borrower or any other
Restricted Subsidiary; provided that Indebtedness of
any Restricted Subsidiary that is not a Loan Party to
any Loan Party shall be subject to Section 6.04;
provided, further, that any such Indebtedness owing to
a Borrower, including any Mirror Note, shall be pledged
pursuant to the FCX Pledge Agreement (Indebtedness) or
the PTFI Pledge Agreement and any promissary note
evidencing any such Indebtedness, including any Mirror
Note, shall be delivered to the Security Agent or
Administrative Agent, as appropriate;
(iv) secured or unsecured Indebtedness of the
Borrowers or any Restricted Subsidiary and Attributable
Debt in respect of sale and leaseback transactions
permitted by Section 6.06, in each case incurred to
finance the acquisition, construction or improvement of
any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a
Lien on any such assets prior to the acquisition
thereof but excluding Additional Infrastructure
Financings, and extensions, renewals and replacements
of any such Indebtedness or Attributable Debt that do
not result in an earlier maturity date or decreased
weighted average life thereof; provided that (A) any
such Indebtedness or Attributable Debt is incurred
within 180 days prior to or within 180 days after such
acquisition or the completion of such construction or
improvement, (B) any such Attributable Debt is incurred
in accordance with Section 6.06 and (C) the aggregate
principal amount of Indebtedness and aggregate amount
of Attributable Debt permitted by this clause (iv)
(including any such extensions, renewals and
replacements) shall not exceed $50,000,000 at any time
outstanding;
(v) unsecured Indebtedness of the Borrowers or any
Restricted Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed
or capital assets, and extensions, renewals and
replacements of any such Indebtedness that do not
result in an earlier maturity date or decreased
weighted average life thereof; provided that (A) any
such Indebtedness is incurred within 180 days prior to
or within 180 days after such acquisition or the
completion of such construction or improvement and (B)
the aggregate principal amount of Indebtedness
permitted by this clause (v) (including any such
extensions, renewals and replacements) shall not exceed
$75,000,000 at any time outstanding;
(vi) Indebtedness of PTFI and/or FCX or
Attributable Debt of PTFI or any Restricted Subsidiary
incurred in connection with any Additional
Infrastructure Financing or any PT Kencana Financing,
and extensions, renewals and replacements of any such
Indebtedness or Attributable Debt that do not result in
an earlier maturity date or decreased weighted average
life thereof provided that (A) the aggregate principal
amount of Indebtedness and the aggregate amount of
Attributable Debt permitted by this clause (vi)
(including any such extensions, renewals and
replacements) shall not exceed $300,000,000 at any time
outstanding and (B) the Net Proceeds of any such
Additional Infrastructure Financing or PT Kencana
Financing, as the case may be, are applied in
accordance with the provisions of Section 2.10;
(vii) Block B Debt of FCX, PTFI or a Restricted
Subsidiary, provided that such Block B Debt satisfies
the Block B Conditions;
(viii) Indebtedness under Hedging Agreements
permitted by Section 6.07;
(ix) Permitted FCX Indebtedness, provided that the
Net Proceeds thereof (less any Permitted Interest
Escrow) are applied in accordance with the provisions
of Section 2.10;
(x) Indebtedness of FCX Guaranteed on an unsecured
basis by PTFI that, but for such Guarantee, would
constitute Permitted FCX Indebtedness, and Indebtedness
of PTFI that, but for being the direct obligation of
PTFI, otherwise meets the requirements of Permitted FCX
Indebtedness, provided that (A) the aggregate principal
amount of Indebtedness permitted by this clause (x)
shall not exceed $250,000,000 at any time outstanding
and (B) the Net Proceeds thereof (less any Permitted
Interest Escrow) are applied in accordance with the
provisions of Section 2.10;
(xi) Guarantees by the Borrowers or any Restricted
Subsidiary of Indebtedness of Unrestricted Subsidiaries
(including Guarantees secured by pledges of the Equity
Interests of such Unrestricted Subsidiaries) permitted
by Section 6.04(g);
(xii) the Barclays Guarantee, provided that FCX
shall not effect any additional borrowings under the
Barclays Loan Agreement after the date hereof or
otherwise take any action to increase the principal
amount of the Barclays Obligations;
(xiii) unsecured Guarantees of FCX (or any
Restricted Subsidiary) of obligations of a purchaser in
an FCX Assisted PTMI/FI Sale to lenders providing
financing for such sale in an aggregate amount not at
any time in excess of (x) the aggregate amount of cash
consideration received by FCX or any Restricted
Subsidiary for such FCX Assisted PTMI/FI Sale minus (y)
the aggregate amount of payments theretofore made in
respect of principal obligations under such Guarantee.
(b) PTFI will not issue, and neither Borrower
will permit any Restricted Subsidiary to issue, any
preferred stock or other preferred Equity Interests.
SECTION 6.02. Liens. Each Borrower will not, and
will not permit any Restricted Subsidiary to, create, incur,
assume or permit to exist any Lien on any property or asset
now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights
in respect of any thereof, except:
(a) Liens created under or specifically required
by the Loan Documents securing some or all of the
Obligations;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of such
Borrower or any Restricted Subsidiary existing on the
date hereof and set forth in Schedule 6.02; provided
that (i) such Lien shall not apply to any other
property or asset of such Borrower or any Restricted
Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired,
constructed or improved by such Borrower or any
Restricted Subsidiary; provided that (A) such security
interests secure Indebtedness permitted by clause (iv)
of Section 6.01(a), (B) such security interests and the
Indebtedness secured thereby are incurred within 180
days prior to or within 180 days after such acquisition
or the completion of such construction or improvement,
(C) the Indebtedness secured thereby does not exceed by
more than a de minimis amount the cost of acquiring,
constructing or improving such fixed or capital assets
and (D) such security interests shall not apply to any
other property or assets of such Borrower or any
Restricted Subsidiary;
(e) Liens on Additional Infrastructure Assets
securing Additional Infrastructure Financings; provided
that (A) such Liens secure only Indebtedness or
Attributable Debt permitted by Section 6.01(a)(vi) and
(B) such Liens do not apply to any other property or
assets of the Borrowers or any Restricted Subsidiaries;
(f) Liens on PT Kencana Assets securing a PT
Kencana Financing; provided that (A) such Liens secure
only Indebtedness or Attributable Debt permitted by
Section 6.01(a)(vi) and (B) such Liens do not apply to
any other property or assets of the Borrowers or any
Restricted Subsidiaries;
(g) required margin deposits on Hedging Agreements
permitted hereunder;
(h) Liens, existing at the time of the acquisition
by a Borrower or any Restricted Subsidiary of the
majority of the capital stock or all the assets of any
other Person or existing at the time of the merger of
any such Person into it or a Restricted Subsidiary, on
such capital stock or assets so acquired or on the
assets of the Person so merged into such Borrower 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 a Default; and
provided further that all such Liens shall be
discharged within 180 days after the date of such
acquisition or merger;
(i) as permitted by Section 6.15, the RTZ
Interests;
(j) Liens on Block B Assets securing Block B Debt
provided that such Liens and Block B Debt satisfy the
Block B Conditions;
(k) Liens on Equity Interests of Unrestricted
Subsidiaries to secure Indebtedness of Unrestricted
Subsidiaries or to secure Guarantees of such
Indebtedness by the Borrowers or any Restricted
Subsidiary permitted by Section 6.04(g);
(l) Permitted Interest Escrows securing
Indebtedness permitted by Section 6.01(a)(ix) or (x);
and
(m) Liens on the Caterpillar Assets to the extent
required by the Caterpillar Documents and permitted by
the twelfth paragraph of Article VIII.
SECTION 6.03. Fundamental Changes. (a) Neither
Borrower will, nor will it permit any Restricted Subsidiary
to, merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with
it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no
Default shall have occurred and be continuing, (i) any other
Restricted Subsidiary may merge into such Borrower in a
transaction in which such Borrower is the surviving
corporation, (ii) any Restricted Subsidiary may merge into
any other Restricted Subsidiary in a transaction in which
the surviving entity is a Restricted Subsidiary and (iii)
any Restricted Subsidiary (other than PTFI) may liquidate or
dissolve if such Borrower determines in good faith that such
liquidation or dissolution is in the best interests of such
Borrower and is not materially disadvantageous to the
Lenders; provided that any such merger involving a Person
that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by
Section 6.04.
(b) Each Borrower will not, and will not permit
any of its Restricted Subsidiaries to, engage to any
material extent in any business other than businesses of the
type conducted by such Borrower and its Restricted
Subsidiaries on the Effective Date and businesses reasonably
related thereto.
SECTION 6.04. Investments, Loans, Advances,
Guarantees and Acquisitions. Each Borrower will not, and
will not permit any of its Restricted Subsidiaries to,
purchase, hold, make or acquire (including pursuant to any
merger with any Person that was not a Wholly Owned
Restricted Subsidiary prior to such merger) any Investment
in any other Person, or purchase or otherwise acquire (in
one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except:
(a) in the case of FCX, Investments required by
the Put Agreement and Interest Shortfall Loans made by
FCX;
(b) Permitted Investments;
(c) Investments existing on the date hereof and
set forth on Schedule 6.04;
(d) Investments made after the Effective Date by
such Borrower and its Restricted Subsidiaries in the
Subsidiary Guarantors (including, without limitation,
Guarantees of Indebtedness of Subsidiary Guarantors);
provided that (i) the aggregate amount of Investments
by the Borrowers in the Subsidiary Guarantors made (x)
from the Effective Date through December 31, 2001,
shall not exceed $6,000,000 and (y) in any fiscal year
ending on or after December 31, 2002, shall not exceed
$25,000,000, (ii) all such Investments shall be made
and utilized only for funding ongoing exploration and
operating costs incurred in the ordinary course of
business and not for funding development costs or
significant capital expansion and (iii) any promissory
notes evidencing any such Investments consisting of
loans or advances made by a Borrower shall be pledged
pursuant to the FCX Pledge Agreement (Indebtedness) or
the PTFI Pledge Agreement;
(e) trade accounts receivable under the
Concentrate Sales Agreements incurred in the ordinary
course of business and not more than 90 days overdue,
or if overdue, being pursued through appropriate
collection action; loans or advances made by a Borrower
shall be pledged pursuant to the FCX Pledge Agreement
(Indebtedness) or the PTFI Pledge Agreement;
(f) investments received in connection with the
bankruptcy or reorganization of, or settlement of
delinquent accounts and disputes with, customers and
suppliers, in each case in the ordinary course of
business;
(g) Investments made after the Effective Date in
Unrestricted Subsidiaries and other Persons; provided
that (i) the aggregate amount of such Investments (x)
made from the Effective Date through December 31, 2001,
shall not exceed $6,000,000 and (y) made in any fiscal
year ending on or after December 31, 2002, shall not
exceed $25,000,000 and (ii) all such Investments are
made and utilized solely for (x) funding ongoing
exploration, working capital and ordinary course
operating expenses and not for funding development
costs or significant capital expansion or (y)
purchasing Equity Interests in such Unrestricted
Subsidiaries or other Persons that, in either case, own
Infrastructure Assets or Additional Infrastructure
Assets in connection with the exercise of preexisting
rights of first refusal with respect to proposed sales
of such Equity Interests;
(h) Investments in Unrestricted Subsidiaries
resulting solely from the designation of an Exploration
Subsidiary, or any holding company with no business or
operations other than the holding of Equity Interests
in such Exploration Subsidiary, as an Unrestricted
Subsidiary in accordance with Section 6.17; provided
that the aggregate cumulative amount of Investments
made by the Borrowers and the Restricted Subsidiaries
in such Exploration Subsidiaries and/or holdings
companies from the Effective Date until the effective
date of such redesignation does not exceed $40,000,000;
(i) Investments in Unrestricted Subsidiaries
resulting solely from the designation of PT Kencana, PT
Kencana Wisata, or any holding company with no business
or operations other than the holding of Equity
Interests in PT Kencana and/or PT Kencana Wisata, as an
Unrestricted Subsidiary in accordance with Section
6.17; provided that (i) such designation is only made
upon consummation of a PT Kencana Financing, (ii) at
the time of such designation, PT Kencana or PT Kencana
Wisata, as the case may be, does not, directly or
indirectly, own or hold any significant assets other
than PT Kencana Assets and (iii) the Net Proceeds of
such PT Kencana Financing, including the Net Proceeds
of any sale or transfer of Equity Interests in PT
Kencana and/or PT Kencana Wisata, and sale or transfer
of PT Kencana Assets and the incurrence of any
Indebtedness or Attributable Debt by the Borrowers, any
Restricted Subsidiary, PT Kencana or PT Kencana Wisata
are applied in accordance with Section 2.10;
(j) acquisitions of all the Equity Interests of a
Person or substantially all the assets of a Person
provided that (i) no Default exists at the time of or
would result after giving effect to such acquisition
and (ii) the sole consideration for such acquisition
consists of common stock of FCX;
(k) Investments in any Person made with
Discretionary Funds, provided the Borrowers notify the
Administrative Agent of each such Investment, including
the amount and recipient thereof, not later than the
time such Investment is made;
(l) Investments consisting of noncash
consideration with respect to sale of assets permitted
by Section 6.05;
(m) Guarantees constituting Indebtedness otherwise
permitted by Section 6.01; and
(n) Investments in PTFI made by FCX; provided that
any promissory notes evidencing any such Investments
consisting of loans or advances made by FCX shall be
pledged pursuant to the FCX Pledge Agreement
(Indebtedness).
SECTION 6.05. Asset Sales. Each Borrower will
not, and will not permit any of its Restricted Subsidiaries
to, sell, transfer, lease or otherwise dispose of any asset,
including any Equity Interest owned by it, nor will such
Borrower permit any of its Restricted Subsidiaries to issue
any additional Equity Interest in such Restricted
Subsidiary, except:
(a) sales of inventory, used or surplus equipment
and Permitted Investments in the ordinary course of
business;
(b) sales, transfers and dispositions to a
Borrower or a Restricted Subsidiary; provided that any
such sales, transfers or dispositions involving a
Restricted Subsidiary (other than PTFI) shall be made
in compliance with Section 6.09 and, provided, further,
that PTFI will not transfer any significant operating
assets, the Contract of Work or any rights thereunder
or (except in connection with an Additional
Infrastructure Financing or sale and leaseback
transaction permitted by Section 6.06) any assets
subject to any Lien under any of the Security Documents
to any other Person;
(c) transfers of Block B Assets in transactions
satisfying the Block B Conditions;
(d) any sale of Transferred Shares in a Qualifying
PTMI/FI Sale Transaction provided that the Net Proceeds
thereof are applied in accordance with Section 2.10(c);
(e) sales of assets as part of a sale and
leaseback transaction permitted by Section 6.06;
(f) any sale of Equity Interests in PT Kencana
and/or PT Kencana Wisata in connection with a PT
Kencana Financing, provided the Net Proceeds thereof
are applied in accordance with the provisions of
Section 2.10(c);
(g) sales, transfers and other dispositions of
assets that are not permitted by any other clause of
this Section; provided that the cumulative
consideration for all assets sold, transferred or
otherwise disposed of in reliance upon this clause (d)
(including the amount of any Indebtedness transferred,
assigned or assumed in connection with a sale of Equity
Interests) shall not exceed $100,000,000 in the
aggregate; provided, further, that the Net Proceeds
thereof are applied in accordance with Section 2.10;
and
provided that all sales, transfers, leases and other
dispositions permitted hereby (other than those permitted by
clause (b) and (d) above) shall be made for fair value and
for (i) 100% cash consideration, in the case of transactions
permitted by clause (e) and (f) and sales of Permitted
Investments and (ii) at least 75% cash consideration, in the
case of transactions permitted by clauses (a), (c) and (g)
(disregarding any amounts of Indebtedness transferred,
assigned or assumed by the purchaser in such transaction
that is not owed to the Borrowers or their Affiliates).
SECTION 6.06. Sale and Leaseback Transactions.
Each Borrower will not, and will not permit any of its
Restricted Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer
any property, real or personal, used or useful in its
business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property
that it intends to use for substantially the same purpose or
purposes as the property sold or transferred, except for (a)
any such sale of any fixed or capital assets that is made
for cash consideration in an amount not less than the cost
of such fixed or capital asset and is consummated within 180
days after such Borrower or such Restricted Subsidiary
acquires or completes the construction of such fixed or
capital asset; provided the aggregate amount of Attributable
Debt in respect of such transactions is permitted by Section
6.01(a)(iv) and (b) any such sale of PT Kencana Assets as
part of a PT Kencana Financing or of Additional
Infrastructure Assets as part of an Additional
Infrastructure Financing, provided in each case that such
sale is solely for cash and the Net Proceeds thereof are
applied in accordance with Section 2.10.
SECTION 6.07. Hedging Agreements. Each Borrower
will not, and will not permit any of its Restricted
Subsidiaries to, enter into any Hedging Agreement, other
than Hedging Agreements entered into in the ordinary course
of business to hedge or protect against actual or reasonably
anticipated risks to which such Borrower or any Restricted
Subsidiary is exposed in the conduct of its business, and
not in any event for speculation.
SECTION 6.08. Restricted Payments; Certain
Payments of Indebtedness. (a) Each Borrower will not, nor
will it permit any Restricted Subsidiary to, declare or
make, or agree to pay or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except (i) FCX may declare and pay
dividends with respect to its capital stock payable solely
in additional shares of its common stock, (ii) Restricted
Subsidiaries may declare and pay dividends ratably with
respect to their capital stock, (iii) FCX may make
Restricted Payments, not exceeding $5,000,000 during any
fiscal year, pursuant to and in accordance with stock option
plans or other benefit plans for management or employees of
FCX and its Subsidiaries, (iv) so long as no Default shall
have occurred and be continuing, PTFI may pay dividends to
FCX at such times and in such amounts as shall be necessary
to permit FCX to discharge its operating expenses incurred
in the ordinary course of business and its permitted
liabilities (other than any liability in respect of a
Restricted Payment not permitted to be made by FCX
hereunder) and (v) so long as no Default or Event of Default
shall have occurred and be continuing, FCX may pay regularly
scheduled quarterly dividends in respect of its preferred
stock and effect regularly scheduled mandatory redemptions
of its preferred stock, in each case, to the extent and in
the amounts required by the prospectus under which such
preferred stock was issued; provided, however, that no
Restricted Payments may be made in respect of preferred
stock after July 31, 2003, if a Qualifying Gold Preferred
Restructuring has not been consummated by such date.
(b) Each Borrower will not, nor will it permit
any Restricted Subsidiary to, make or agree to pay or make,
directly or indirectly, any payment or other distribution
(whether in cash, securities (other than common stock of
FCX) or other property) of or in respect of principal of or
interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities (other than common
stock of FCX) or other property), including any sinking fund
or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any
Indebtedness, except:
(i) payment of Indebtedness created under the Loan
Documents;
(ii) payment of regularly scheduled interest and
principal payments as and when due in respect of any
Indebtedness;
(iii) refinancings of Indebtedness to the extent
permitted by Section 6.01(a);
(iv) payment of secured Indebtedness that becomes
due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness;
(v) the purchase of 2026 Senior Notes as a result
of a put of such 2026 Senior Notes by the holders
thereof in November 2003;
(vi) prepayments of Indebtedness made with
Discretionary Funds;
(vii) the purchase by FCX of the PTMI Loan Rights
pursuant to the Put Agreement and this Agreement; and
(viii) prepayments of Indebtedness owed to either
Borrower by the other Borrower or a Restricted
Subsidiary or owed to a Restricted Subsidiary by
another Restricted Subsidiary, provided that
prepayments of Indebtedness owed to a Restricted
Subsidiary that is not a Loan Party shall be permitted
only to the extent no Default has occurred and is
continuing at the time of such prepayment.
(c) Each Borrower will not, and will not permit
any Restricted Subsidiary to, enter into or be party to, or
make any payment under, any Synthetic Purchase Agreement.
SECTION 6.09. Transactions with Affiliates. (a)
Each Borrower will not, nor will it permit any Restricted
Subsidiary to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in
any other transactions with, any of its Affiliates, except
(a) transactions in the ordinary course of business at
prices and on terms and conditions not less favorable to
such Borrower or such Restricted Subsidiary than could be
obtained on an arm's-length basis from Third Parties,
provided that transactions involving payments or transfers
having a cumulative aggregate value of not more than
$15,000,000 may be other than on an arm's-length basis so
long as the board of directors of FCX has determined the
transaction is in the best interests of the Borrowers, (b)
transactions between the Borrowers and/or Subsidiary
Guarantors not involving any other Affiliate and (c) any
Restricted Payment permitted by Section 6.08.
(b) PTFI will not make any contribution or
transfer of any substantial portion of its assets, the
Contract of Work or any rights thereunder to FCX, any
Restricted Subsidiary or any other Affiliate other than (i)
cash dividends permitted to be paid to FCX pursuant to
Section 6.08(a), (ii) transfers of Block B Assets in
accordance with Section 6.05(c) and (iii) cash investments
in Unrestricted Subsidiaries and other Affiliates permitted
by Section 6.04(g).
SECTION 6.10. Restrictive Agreements. Each
Borrower will not, nor will it permit any Restricted
Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the
ability of the Borrowers or any Restricted Subsidiary to
create, incur or permit to exist any Lien upon any of its
property or assets, or (b) the ability of any Restricted
Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or
repay loans or advances to the Borrowers or any other
Restricted Subsidiary or to Guarantee Indebtedness of the
Borrowers or any other Restricted Subsidiary; provided that
(i) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on
Schedule 6.10 (but shall apply to any extension or renewal
of, or any amendment or modification expanding the scope of,
any such restriction or condition), (ii) the foregoing shall
not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Restricted
Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Restricted Subsidiary that is
to be sold and such sale is permitted hereunder, and (iii)
clause (a) of the foregoing shall not apply to (i)
restrictions or conditions imposed by any agreement relating
to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or
assets securing such Indebtedness, (ii) restrictions or
conditions imposed by any agreement relating to
Indebtedness, not to exceed in the aggregate $35,000,000,
permitted by Section 6.01(a)(v) if such restrictions or
conditions apply only to the fixed or capital assets the
acquisition, construction or improvement of which was
financed with such Indebtedness, (iii) customary provisions
in leases restricting the assignment thereof, (iv)
restrictions imposed by Sections 7.2.5 and 7.3 of the
Participation Agreement and (v) restrictions in indentures
governing Permitted FCX Indebtedness which do not in any
manner restrict the ability of the Borrowers and the
Restricted Subsidiaries to grant Liens on any of their
properties or assets to secure the Obligations or any
extensions, renewals, replacements or refinancings thereof.
SECTION 6.11. Amendment of Material Documents and
Mirror Notes. (a) Each Borrower will not, nor will it
permit any Restricted Subsidiary to, amend, modify or waive
any of its rights under (i) its certificate of
incorporation, by-laws or other organizational documents,
(ii) any indenture or agreement governing Material
Indebtedness or (iii) any Infrastructure Document,
Additional Infrastructure Financing Document, PT Kencana
Financing Document or Caterpillar Document or (iv) the
Existing PTMI Agreement or any PTMI Collateral Document, in
each case in any manner that could reasonably be expected to
be adverse in any significant respect to the interests or
rights of the Lenders.
(b) PTMI and FCX will not, without the prior
consent of the Required Lenders, amend, modify or waive any
of its rights under any Mirror Note if the effect would be
to (i) change the amount of principal, the rate of interest
or the manner in which payments are calculated thereon, (ii)
change the dates for the payment of principal, interest or
other amounts thereon or (iii) change or modify the
subordination provisions thereof; provided, however, that
PTMI and FCX may, without the consent of the Lenders, amend
or modify any Mirror Note (x) in order to adjust the
principal amount, interest rate or other payment terms
thereof (but not subordination terms) to reflect the terms
of the related Mirror Note Security (as amended from time to
time) or any security of FCX that replaces, refinances or is
exchanged for such Mirror Note Security (which other
security will be deemed a Mirror Note Security for purposes
hereof) or (y) in any manner not referred to in clause (i),
(ii) or (iii) hereof.
SECTION 6.12. Protection of Contract Rights.
PTFI 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 Lenders; provided,
however, that PTFI may amend or waive provisions in any
Concentrate Sales Agreement or, in the ordinary course of
business and so long as no Default or Event of Default shall
have occurred and be continuing hereunder, terminate any
Concentrate Sales Agreement, so long as such amendment,
waiver or termination will not materially adversely affect
the business, financial condition or operations of PTFI or
any rights of the FI Trustee or the Lenders. Upon the
request of the Administrative Agent or the FI Trustee, PTFI
will promptly provide the Administrative Agent or the FI
Trustee, as the case may be, with access to PTFI's books,
records and offices for the purpose of permitting the
Administrative Agent or the FI Trustee to inspect and review
any amendments, waivers or supplements to, or terminations
of, any Concentrate Sales Agreement and make copies thereof.
If a Default or Event of Default shall have occurred and be
continuing, upon the request of the Administrative Agent or
the FI Trustee, PTFI will provide the Administrative Agent
or the FI Trustee, as the case may be, with copies of any
such amendments, waivers, supplements or terminations. PTFI
shall take all steps necessary or advisable to protect its
rights (and the rights of the FI Trustee) under the Assigned
Agreements.
SECTION 6.13. Block B Projects. Neither Borrower
nor any of its Subsidiaries will permit any Block B Project
to utilize any Block A Operations and Assets unless such
Block B Project satisfies the Block B Conditions.
SECTION 6.14. Fiscal Year. Neither Borrower will
change its fiscal year to end on any date other than
December 31.
SECTION 6.15. Covenants Relating to the RTZ
Transactions. Neither Borrower will, directly or indirectly
enter into any amendment or modification of (i) the Stock
Purchase Agreement or the Participation Agreement (including
the Financial and Accounting Procedures thereunder) in each
case from and after the Effective Date or (ii) any other
material agreement in connection therewith, at any time, in
each case other than pursuant to documents approved by the
Required Lenders (the Stock Purchase Agreement, the
Participation Agreement and such other approved material
agreements being, collectively, the "RTZ Documents") which
would (or could reasonably be expected to) have an adverse
effect upon the FI Collateral and Rights or impair the
ability of either Borrower or any Restricted Subsidiary to
perform all of their respective obligations under the Loan
Documents (including under this Section 6.15). Without the
prior written approval of the Required Lenders, PTFI shall
not (a) consent to any "Closedown" (as such term is defined
in the Participation Agreement) or any amendment,
modification or waiver of Section 7.5.1.1, 7.5.1.3 or 10.5
or Annex A of the Participation Agreement, (b) consent to
any assignment by RTZ or PT-Rio Tinto Indonesia of the RTZ
Documents or their respective obligations thereunder, (c)
waive any material default by RTZ under the RTZ Documents,
(d) agree to any reduction in annual production from
Contract Block A (as defined in the Contract of Work), other
than annual production from Greenfield Projects and Sole
Risk Ventures (as such terms are defined in the
Participation Agreement), which might foreseeably result in
PTFI receiving cashflow after payment of all Operating Costs
attributable to it which would not be sufficient to pay in
full all its obligations, including under the Privatization
Agreements (as such term is defined in the Participation
Agreement) and the Loan Documents, as and when they are
likely to come due, (e) amend or agree to any amendment of
any agreement to which the Administrative Agent has not also
agreed if, as a result of such amendment, a term defined in
the FI Intercreditor Agreement or the Side Letter by
reference to a term defined in such amended agreement would
be changed or (f) resign as the Operator under the
Participation Agreement. Subject to the penultimate
sentence of this Section 6.15, PTFI 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 either Borrower 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 other than the transfer
of the RTZ Interests as required by the Participation
Agreement, in each case subject to the terms of the FI
Intercreditor Agreement and the FI Trust Agreement. PTFI
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-Rio Tinto
Indonesia or any of its Affiliates other than on an arm's-
length basis. PTFI 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.
PTFI 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, Block A Base Production pledged to the Lenders.
SECTION 6.16. Specified Transactions. Neither
Borrower will (a) enter into Additional Infrastructure
Document or agreement relating to a PT Kencana Financing or
any amendment or modification thereof or enter into any
amendment or modification of any of the Infrastructure
Documents or any of the Caterpillar Documents which could
reasonably be expected to have an adverse effect upon the
rights and remedies of the Administrative Agent, the FI
Trustee and the Lenders under the Loan Documents or on the
collateral provided under the FI Security Documents (the "FI
Collateral and Rights") or impair the ability of either
Borrower or the Restricted Subsidiaries to perform all of
their respective obligations under the Loan Documents; (b)
make, or permit any Restricted Subsidiary to make, any
voluntary repurchase of any Infrastructure Assets or (c)
grant or provide (or permit any Restricted Subsidiary to
grant or provide) any additional security or collateral to
secure any obligations arising under any Infrastructure
Documents or any Caterpillar Obligations (other than as
required under the Infrastructure Documents or the
Caterpillar Documents with respect to substitution or
replacement of existing collateral).
SECTION 6.17. Designation of Unrestricted
Subsidiaries. (a) The Borrowers may not designate any
Restricted Subsidiary (other than any Immaterial Subsidiary,
any Exploration Subsidiary, PT Kencana, PT Kencana Wisata
and any Person that is (x) the direct parent of any
Exploration Subsidiary, PT Kencana and/or PT Kencana Wisata
and (y) a holding company with no business or operations
other than the holding of Equity Interests in such
Exploration Subsidiary, PT Kencana and/or PT Kencana Wisata)
as an Unrestricted Subsidiary and may hereafter designate
any Exploration Subsidiary, PT Kencana, PT Kencana Wisata,
any Immaterial Subsidiary and any other Subsidiary that is
not a Restricted Subsidiary as an Unrestricted Subsidiary
under this Agreement (a "Designation") only if:
(i) such Subsidiary does not own any Equity
Interests of any Restricted Subsidiary;
(ii) no Event of Default shall have occurred and
be continuing at the time of or after giving effect to
such Designation;
(iii) after giving effect to such Designation and
any related Investment to be made in such designated
Subsidiary by the Borrowers or any Restricted
Subsidiary (which shall in any event include the
existing Investment in such Subsidiary at the time it
is designated as an Unrestricted Subsidiary), (A) any
such existing Investment and related Investment would
comply with and satisfy the conditions of Section 6.04
and (B) the Borrowers would be in compliance with each
of the Financial Covenants calculated on a pro forma
basis as if such Designation and Investment had
occurred immediately prior to the first day of the
period of four consecutive fiscal quarters most
recently ended in respect of which financial statements
have been delivered by the Borrowers pursuant to
Section 5.01(a) or (b); and
(iv) the Borrowers have delivered to the
Administrative Agent (x) written notice of such
Designation and (y) a certificate, dated the effective
date of such Designation, of a Financial Officer
stating that no Event of Default has occurred and is
continuing and setting forth reasonably detailed
calculations demonstrating pro forma compliance with
the Financial Covenants in accordance with paragraph
(iii) above.
Upon the designation of any Restricted Subsidiary
as an Unrestricted Subsidiary pursuant to the terms hereof,
provided after giving effect thereto no Default or Event of
Default shall have occurred and be continuing, the Guarantee
of such Subsidiary shall automatically be released without
any consent of the Required Lenders.
(b) The Borrower may designate any Unrestricted
Subsidiary as a Restricted Subsidiary under this Agreement
(an "RS Designation") only if:
(i) no Event of Default shall have occurred and be
continuing at the time of or after giving effect to
such RS Designation, and after giving effect thereto,
the Borrowers would be in compliance with each of the
Financial Covenants, calculated on a pro forma basis as
if such RS Designation had occurred immediately prior
to the first day of the period of four consecutive
fiscal quarters most recently ended in respect of which
financial statements have been delivered by the
Borrowers pursuant to Section 5.0(a) or (b); and
(ii) all Liens on assets of such Unrestricted
Subsidiary and all Indebtedness of such Unrestricted
Subsidiary outstanding immediately following the RS
Designation would, if initially incurred at such time,
have been permitted to be incurred pursuant to Sections
6.01 and 6.02 without reliance on Section 6.01(a)(ii)
or Section 6.02(c) or (h).
Upon any such RS Designation with respect to an
Unrestricted Subsidiary (i) the Borrowers and the Restricted
Subsidiaries shall be deemed to have received a return of
their Investment in such Unrestricted Subsidiary equal to
the lesser of (x) the amount of such Investment immediately
prior to such RS Designation and (y) the fair market value
(as reasonably determined by the Borrowers) of the net
assets of such Subsidiary at the time of such RS Designation
and (ii) the Borrowers and the Restricted Subsidiaries shall
be deemed to have a permanent Investment in an Unrestricted
Subsidiary equal to the excess, if positive, of the amount
referred to in clause (i)(x) above over the amount referred
to in clause (i)(y) above.
(c) Neither of the Borrowers nor any Restricted
Subsidiary shall at any time (x) provide a Guarantee of any
Indebtedness of any Unrestricted Subsidiary, (y) be directly
or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary or (z) be directly or indirectly
liable for any other Indebtedness which provides that the
holder thereof may (upon notice, lapse of time or both)
declare a default thereon (or cause such Indebtedness or the
payment thereof to be accelerated, payable or subject to
repurchase prior to its final scheduled maturity) upon the
occurrence of a default with respect to any other
Indebtedness that is Indebtedness of an Unrestricted
Subsidiary, except in the case of clause (x) or (y) to the
extent permitted under Section 6.01 and Section 6.04 hereof.
Except as provided in clause (b) above, each Designation
shall be irrevocable, and no Unrestricted Subsidiary may
become a Restricted Subsidiary, be merged with or into the
Borrower or a Restricted Subsidiary or liquidate into or
transfer substantially all its assets to the Borrower or a
Restricted Subsidiary.
SECTION 6.18. Leverage Ratio. The Borrowers will
not permit the Leverage Ratio on any date during the period
(a) from the Effective Date through September 30, 2002 to
exceed 4.25 to 1.00 and (b) from October 1, 2002 and
thereafter to exceed 3.5 to 1.0.
SECTION 6.19. Fixed Charge Coverage Ratio. The
Borrowers will not permit the ratio of (a) Consolidated
EBITDA minus capital expenditures to (b) Consolidated Fixed
Charges, in each case for any period of four consecutive
fiscal quarters ending on any date during any period set
forth below, to be less than the ratio set forth below
opposite such period:
Period Ratio
January 1, 2001 through 1.25:1.00
December 31, 2002
January 1, 2003 through 1.50:1.00
December 30, 2005
SECTION 6.20. Capital Expenditures. (a) The
Borrowers will not permit the aggregate amount of Capital
Expenditures during any period set forth below to exceed the
amount set forth opposite such period:
Period Amount
January 1, 2001 through December 31, 2001 $237,875,000
January 1, 2002 through December 31, 2002 $170,500,000
January 1, 2003 through December 31, 2003 $188,375,000
January 1, 2004 through December 31, 2004 $127,875,000
January 1, 2005 through December 30, 2005 $136,375,000
For purposes of determining the amount of Capital
Expenditures in any period set forth above, there shall be
excluded any Capital Expenditures made with Discretionary
Funds (provided such use of Discretionary Funds in any
fiscal quarter is reported to the Administrative Agent as
required by Section 5.01(c)) or with the Net Proceeds of
asset dispositions excluded from the definition of "Asset
Dispositions".
(b) If the aggregate amount of Capital
Expenditures made in any period set forth above are less
than 80% of the amount set forth opposite such period, then
such unused amount below 80% for such period may be carried
forward to the two next succeeding periods but not to any
subsequent period; provided, however, that any such unused
amounts may only be used for deferred mining projects. For
purposes of the proceeding sentence, Capital Expenditures
made during any period will be applied first against the
amount set forth opposite such period above, then against
any amount carried over from the second preceding period, if
any, and then against any amount carried over from the
preceding period.
ARTICLE VII
Events of Default
If any of the following events ("Events of
Default") shall occur:
(a) either Borrower shall fail to pay any
principal of any Loan when and as the same shall become
due and payable, whether at the due date thereof or at
a date fixed for prepayment thereof or otherwise;
(b) either Borrower shall fail to pay any interest
on any Loan or any fee or any other amount (other than
an amount referred to in clause (a) of this Article)
payable under this Agreement or any other Loan
Document, when and as the same shall become due and
payable, and such failure shall continue unremedied for
a period of three Business Days;
(c) any representation or warranty made or deemed
made by or on behalf of either Borrower or any
Restricted Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or
waiver thereunder, or in any report, certificate,
financial statement or other document furnished
pursuant to or in connection with any Loan Document or
any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any
material respect when made or deemed made;
(d) either Borrower shall fail to observe or
perform any covenant, condition or agreement contained
in Section 5.02, 5.04 (with respect to the existence of
either Borrower) or 5.11 or in Article VI or Section
10.16;
(e) any Loan Party shall fail to observe or
perform any covenant, condition or agreement contained
in any Loan Document (other than those specified in
clause (a), (b) or (d) of this Article), and such
failure shall continue unremedied for a period of 30
days after notice thereof from the Administrative Agent
to the Borrowers (which notice will be given at the
request of any Lender);
(f) default shall be made with respect to any
Material Indebtedness if the effect of any such default
shall be to accelerate, or to permit the holder or
obligee of any such Material Indebtedness (or any
trustee on behalf of such holder or obligee) to
accelerate (with or without notice or lapse of time or
both), the stated maturity of such Material
Indebtedness or, in the case of Hedging Agreements,
require the payment of any net termination value in
respect thereof; or any amount of principal or interest
of any Material Indebtedness or any payment under a
Hedging Agreement constituting Material Indebtedness,
in each case regardless of amount, shall not be paid
when due, whether at maturity, by acceleration or
otherwise (after giving effect to any period of grace
specified in the instrument evidencing or governing
such Material Indebtedness);
(g) an involuntary proceeding shall be commenced
or an involuntary petition shall be filed seeking (i)
liquidation, reorganization or other relief in respect
of either Borrower or any Restricted Subsidiary or its
debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar
official for either Borrower or any Restricted
Subsidiary or for a substantial part of its assets,
and, in any such case, such proceeding or petition
shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall
be entered;
(h) either Borrower or any Restricted Subsidiary
shall (i) voluntarily commence any proceeding or file
any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now
or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause
(h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for
either Borrower or any Restricted Subsidiary or for a
substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take
any action for the purpose of effecting any of the
foregoing;
(i) either Borrower or any Restricted Subsidiary
shall become unable, admit in writing its inability or
fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money
in an aggregate amount in excess of $10,000,000 shall
be rendered against either Borrower, any Restricted
Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 45
consecutive days during which execution shall not be
effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any
assets of either Borrower or any Restricted Subsidiary
to enforce any such judgment;
(k) an ERISA Event shall have occurred that, when
taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in
liability of either Borrower and its Restricted
Subsidiaries in an aggregate amount exceeding (i)
$10,000,000 in any year or (ii) $25,000,000 for all
periods;
(l) any Lien purported to be created under any
Security Document shall cease to be, or shall be
asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral, with the priority
required by the applicable Security Document, except
(i) as a result of the sale or other disposition of the
applicable Collateral in a transaction permitted under
the Loan Documents or (ii) as a result of the Security
Agent's failure to maintain possession of any stock
certificates, promissory notes or other instruments
delivered to it under any Security Document;
(m) 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 Lenders in any manner which materially and
adversely affects the rights and benefits granted to
the FI Trustee and the Lenders 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 PTFI's ability to perform its
obligations under this Agreement or the rights and
benefits granted to the FI Trustee under any FI
Security Document;
(n) any default or other event shall occur with
respect to any of the Infrastructure Financing
Documents, Additional Infrastructure Financing
Documents or PT Kencana Financing Documents which would
(with or without the passage of time or the giving of
notice) permit acceleration or require prepayment of
any of the Indebtedness or Attributable Debt with
respect to any Infrastructure Financing, Additional
Infrastructure Financing or PT Kencana Financing, as
the case may be, (other than with respect to a casualty
event or condemnation affecting the related
Infrastructure Assets), permit foreclosure upon, or
require PTFI to repurchase, the related Infrastructure
Assets, Additional Infrastructure Assets or PT Kencana
Assets, as the case may be;
(o) PTFI shall resign as "Operator" under the
Participation 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
Resignation" (other than any event or condition that is
an Event of Default hereunder)) shall occur and be
continuing;
(p) FCX shall be in default under the Put
Agreement (and, in the case of any default under
Section 8 or 9 of the Put Agreement, any applicable
grace period set forth therein shall have expired);
(q) (i) any Governmental Authority shall condemn,
seize, nationalize, assume the management of, or
appropriate any material portion of the property,
assets or revenues of either Borrower (either with or
without payment of compensation); or
(r) a Change in Control shall occur;
then, and in every such event (other than an event with
respect to either Borrower described in clause (h) or (i) of
this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and
at the request of the Required Lenders shall, by notice to
the Borrowers, take any or all of the following actions, at
the same or different times: (i) terminate the Revolving
Commitments, and thereupon the Revolving Commitments shall
terminate immediately, (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in
which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be
due and payable, together with accrued interest thereon and
all fees and other obligations of the Borrowers accrued
hereunder, shall become due and payable immediately,
without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Borrower and
(iii) exercise any or all the remedies then available under
the FI Security Documents, including the giving of an
Allocation Notice, Blockage Notice or Enforcement Notice
under the FI Trust Agreement and/or the exercise by the
Administrative Agent of its right pursuant to Section 10.16
to remove PTFI as Operator under the Contract of Work
pursuant to the Operator Replacement Agreement; and in case
of any event with respect to either Borrower described in
clause (g) or (h) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued
hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Borrower.
In addition, if, prior to the PTMI Put Date, one
or more of the actions specified above have been taken after
the occurrence of an Event of Default, then the
Administrative Agent may, and at the request of a majority
in interest of the Tranche 1 Lenders shall, by notice to the
Borrowers, take any or all of the following actions, at the
same or different times: (x) (i) require FCX immediately to
effect the purchase of the PTMI Loan Rights for the PTMI
Obligation Amount in accordance with Section 2.19 hereof and
with the Put Agreement, as amended hereby, and in connection
therewith, fund the Tranche 1 Term Loans pursuant to Section
2.19 to provide funds for such purchase and (ii) effect
drawings under PTMI Collateralized Letter of Credit and
apply funds from the PTMI Cash Collateral Account to the
repayment of Tranche 1 Term Loans and/or the payment of
FCX's obligations under the Put Agreement and Section 2.19
or (y) terminate the Tranche 1 Commitments; provided,
however, that in case of any event with respect to either
Borrower described in clause (g) or (h) of this Article,
FCX's obligation to purchase the PTMI Loan Rights for the
PTMI Obligations Amount will automatically become due and
payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by FCX.
ARTICLE VIIA
Certain Loan Allocation Procedures
SECTION 7.01A. Implementation of Exchange. On
the Exchange Date, the Lenders shall automatically and
without further act be deemed to have exchanged interests in
the Facilities such that in lieu of the interest of each
Lender in each Facility in which it shall participate as of
such date (including such Lender's interest in the
principal, reimbursement, interest and other Designated
Obligations in respect of each such Facility), such Lender
shall hold an interest in every one of the Facilities
(including the principal, reimbursement, interest and other
Designated Obligations of each Loan Party (or PTMI, as the
case may be) in respect of each such Facility and each LC
Reserve Account established pursuant to Section 7.02A
below), whether or not such Lender shall previously have
participated therein, equal to each Lender's Exchange
Percentage thereof. Each Lender and each person acquiring a
participation from any Lender as contemplated by Section
10.04(e) hereby consents and agrees to the Exchange. Each
Lender agrees to surrender any promissory notes originally
received by it in connection with its Loans under this
Agreement (or loans under the Existing PTMI Agreement, as
applicable) to the Administrative Agent (or the
administrative agent under the Existing PTMI Agreement, as
applicable) against delivery of replacement promissory notes
executed by the appropriate Borrowers (or PTMI) reflecting
such Lender's Loans (or PTMI Principal Obligations) after
giving effect to the Exchange; provided, however, that the
failure of either Borrower (or PTMI) to execute or deliver,
or of any Lender to accept, any such promissory note shall
not affect the validity or effectiveness of the Exchange.
SECTION 7.02A. Letters of Credit. (a) In the
event that on the Exchange Date any Letter of Credit shall
be outstanding and undrawn in whole or in part, or any
amount drawn under a Letter of Credit shall not have been
reimbursed either by the Borrowers or with the proceeds of a
Revolving Borrowing, each Lender which shall, on such date
and before giving effect to the Exchange, have held a
participation in such Letter of Credit pursuant to Section
2.05(d) shall promptly pay over to the Administrative Agent,
in immediately available funds, an amount equal to such
Lender's Applicable Percentage of such undrawn face amount
or such unreimbursed drawing, as the case may be, together
with interest thereon from the Exchange Date to the date on
which such amount shall be paid to the Administrative Agent
at the rate that would be applicable at the time to an ABR
Loan in a principal amount equal to such amount. The
Administrative Agent shall establish a separate account or
accounts (each, an "LC Reserve Account") for each Lender for
the amounts received with respect to each such Letter of
Credit from each Revolving Lender paying such amounts
pursuant to the preceding sentence. Each Lender's LC
Reserve Account or Accounts, collectively, shall initially
include cash in an amount equal to the product of (x) such
Lender's Exchange Percentage and (y) the total amount
received from the Revolving Lenders pursuant to the second
preceding sentence. The Administrative Agent shall have
sole dominion and control over each such account, and the
amounts deposited in each LC Reserve Account shall be held
in such LC Reserve Account until withdrawn as provided in
paragraph (b), (c), (d) or (e) below. The Administrative
Agent shall maintain records enabling it to determine the
amounts paid over to it and deposited in the LC Reserve
Accounts in respect to each Letter of Credit and the amounts
on deposit in respect of each Letter of Credit attributable
to each Lender's Exchange Percentage. The amounts paid by a
Lender to the Administrative Agent pursuant to this
paragraph shall be held as a reserve against the LC
Exposures, shall be the property of the Lenders, to whose LC
Reserve Accounts such amounts are credited, shall not
constitute Loans to any Borrower and shall not give rise to
any obligation on the part of any Borrower to pay interest
to such Lender, it being agreed that the Borrowers'
reimbursement obligations in respect of Letters of Credit
shall arise only at such times as drawings are made
thereunder, as provided in Section 2.05.
(b) In the event that after the Exchange Date any
drawing shall be made in respect of a Letter of Credit, the
Administrative Agent shall, at the request of the Issuing
Bank, withdraw from the LC Reserve Account of each of the
Lenders (pro rata in accordance with each Lender's Exchange
Percentage) any amounts, up to the amount of such drawing,
deposited in respect of such Letter of Credit and remaining
on deposit and deliver such amounts to the Issuing Bank in
satisfaction of the reimbursement obligations of the Lenders
under Section 2.05(d) (but not of the Borrowers under
Section 2.05 of the Credit Agreement). In the event any
Lender shall default on its obligation to pay over any
amount to the Administrative Agent in respect of any Letter
of Credit as provided in this Section 7.02A, the Issuing
Bank shall, in the event of a drawing thereunder, have a
claim against such Lender to the same extent as if such
Lender had defaulted on its obligations under Section
2.05(d), but shall have no claim against any other Lender,
notwithstanding the exchange of interests in the applicable
Borrower's reimbursement obligations pursuant to Section
7.01A hereof. Each other Lender shall have a claim against
such defaulting Lender for any damages sustained by it as a
result of such default, including, in the event such Letter
of Credit shall expire undrawn, its Exchange Percentage of
the defaulted amount of such defaulting Lender.
(c) In the event that after the Exchange Date any
Letter of Credit shall expire undrawn, the Administrative
Agent shall withdraw from the LC Reserve Account of each
Lender the amount remaining on deposit therein in respect of
such Letter of Credit and distribute such amount to such
Lender.
(d) With the prior written approval of the
Administrative Agent and the Issuing Bank (not to be
unreasonably withheld), any Lender may withdraw the amount
held in its LC Reserve Account in respect of the undrawn
amount of any Letter of Credit. Any Lender making such a
withdrawal shall be unconditionally obligated, in the event
there shall subsequently be a drawing under such Letter of
Credit, to pay over to the Administrative Agent, for the
account of the Issuing Bank, on demand, its Exchange
Percentage of such drawing.
(e) Pending the withdrawal by any Lender of any
amounts from its Exchange Account as contemplated by the
above paragraphs, the Administrative Agent will, at the
direction of such Lender and subject to such rules as the
Administrative Agent may prescribe for the avoidance of
inconvenience, invest such amounts in Permitted Investments.
Each Lender which has not withdrawn its Exchange Percentage
of amounts in its LC Reserve Account as provided in
paragraph (d) above shall have the right, at intervals
reasonably specified by the Administrative Agent, to
withdraw the earnings on investments so made by the
Administrative Agent with amounts in its Exchange Account
and to retain such earnings for its own account.
(f) In the event that the Tranche 1 Term Loan
Commitments are terminated and no Tranche 1 Term Loans
remain outstanding, the Administrative Agent will submit a
certificate to such effect to the Issuing Bank and terminate
the PTMI Collateralized Letters of Credit.
ARTICLE VIII
The Agents and the FI Trustee
Each of the Lenders and Barclays, in its capacity
as the lender under the Barclays Loan Agreement, hereby
irrevocably appoints (a) Chase as Administrative Agent under
this Agreement and the other Loan Documents (including in
its capacity as Operator Selection Representative under the
Operator Replacement Agreement), (b) Chase as Security Agent
for the Lenders under this Agreement and the Lender Security
Documents, (c) Chase as JAA Security Agent for the Lenders
under this Agreement and the JAA Fiduciary Transfer, (d)
Chase as the Documentation Agent for the Lenders under this
Agreement and the other Loan Documents and (e) U.S. Bank
Trust National Association (f/k/a First Trust of New York,
National Association) to act as FI Trustee for the Lenders
under the FI Trust Agreement, the Operator Replacement
Agreement, the Surat Kuasa, the RTZ Release and as FI
Security Agent for the Secured Parties under the Fiduciary
Assignment and the Fiduciary Assignment Amendment and
Restatement. Each Lender and Barclays, in its capacity as
the lender under the Barclays Loan Agreement, (x) confirms
and agrees to be bound by the terms of the FI Trust
Agreement, the FI Intercreditor Agreement and the other Loan
Documents and (y) agrees that the FI Trustee in accepting
its appointment and in acting under the FI Trust Agreement,
the Operator Replacement Agreement, the Surat Kuasa, the RTZ
Release and the Fiduciary Assignment 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. Each Lender and Barclays, in its capacity as the
lender under the Barclays Loan Agreement, authorizes the
Agents to take such actions on its behalf and to exercise
such powers as are delegated to the applicable Agent by the
terms of the applicable Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
Each of the Lenders serving as the Administrative
Agent, the Security Agent, the JAA Security Agent, the
Documentation Agent and the FI Trustee hereunder shall have
the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were
not the applicable Agent, and each of such Lenders and its
Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrowers
or any Subsidiary or other Affiliate thereof as if it were
not an Agent hereunder.
No Agent shall have any duties or obligations
except those expressly set forth in the applicable Loan
Documents. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative
Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders
as shall be necessary under the circumstances as provided in
Section 10.02), and (c) except as expressly set forth in the
Loan Documents, the Administrative Agent shall not have any
duty to disclose, and shall not be liable for the failure to
disclose, any information relating to either Borrower or any
of its Subsidiaries that is communicated to or obtained by
the bank serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall
not be liable for any action taken or not taken by it with
the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section
10.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall not be
deemed to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent
by either Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or
other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth
in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any
other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or
elsewhere in any Loan Document, other than to confirm
receipt of items expressly required to be delivered to the
Administrative Agent.
Without limiting the generality of the foregoing,
the Security Agent and the JAA Security Agent are hereby
expressly authorized to execute any and all documents
(including releases) with respect to the collateral under
the Lender Security Documents and the JAA Fiduciary Transfer
(as applicable) and the rights of the secured parties with
respect thereto, as contemplated by and in accordance with
the provisions of this Agreement and the Lender Security
Documents. In addition, each Lender and Barclays, in its
capacity as the lender under the Barclays Loan Agreement,
hereby irrevocably authorizes and directs the Administrative
Agent to enter, on behalf of each of them, into the Security
Document Amendments and agrees to be bound by the terms of
the Security Documents. Each Lender and Barclays, in its
capacity as the lender under the Barclays Loan Agreement,
hereby irrevocably authorizes and directs the Security
Agent, the JAA Security Agent and the FI Security Agent, as
applicable, to enter into amendments from time to time to
the Security Documents for the purpose of naming as Secured
Parties thereunder Lender Affiliates that become
counterparties to Hedging Agreements, the obligations under
which are secured by the Security Documents.
Each Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and
to have been signed or sent by the proper Person. Each
Agent also may rely upon any statement made to it orally or
by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may
be counsel for the Borrowers), independent accountants and
other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more
sub-agents appointed by the applicable Agent. Each Agent
and any such sub-agent may perform any and all its duties
and exercise its rights and powers through their respective
Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and
to the Related Parties of each Agent and any such sub-agent,
and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for
herein as well as activities as Agent.
No Agent shall commence any litigation in the name
of, or on behalf of, any Lender without the prior consent of
such Lender; provided, however, that notwithstanding the
foregoing, in the event that any Agent commences any
litigation at the direction of the Required Lenders, any
Lender that shall not have consented thereto shall remain
liable for its pro rata share of the costs and expenses of
such Agent pursuant to the provisions of this Agreement.
Subject to the appointment and acceptance of a
successor as provided in this paragraph, any Agent may
resign at any time by notifying the Lenders and the
Borrowers. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Borrowers, to
appoint a successor Administrative Agent, Security Agent,
JAA Security Agent or Documentation Agent, as the case may
be. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, Security
Agent, JAA Security Agent or Documentation Agent, as the
case may be, which shall be a bank with an office in New
York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent,
Security Agent, JAA Security Agent or Documentation Agent,
as the case may be, hereunder by a successor, such successor
Administrative Agent, Security Agent, JAA Security Agent or
Documentation Agent, as applicable, shall succeed to and
become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall
be discharged from its duties and obligations hereunder.
The fees payable by the Borrowers to a successor Agent shall
be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor.
After any Agent's resignation hereunder, the provisions of
this Article and Section 10.03 shall continue in effect for
the benefit of such retiring Agent, its sub-agents and their
respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as
an Agent.
Each Lender acknowledges that it has,
independently and without reliance upon the Agents or any
other Lender and based on such documents and information as
it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without
reliance upon the Agents or any other Lender and based on
such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this
Agreement, any other Loan Document or related agreement or
any document furnished hereunder or thereunder.
The obligations of the Administrative Agent,
Security Agent, JAA Security Agent, the FI Trustee and the
Documentation 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.
Without the prior written consent of the Required
Lenders but subject to Section 10.2(b), the Administrative
Agent, the Security Agent and the JAA Security Agent will
not, except as contemplated by the following paragraph,
consent to any modification, supplement or waiver of the FI
Intercreditor Agreement, the Lender Security Documents, the
FI Trust Agreement, the Operator Replacement Agreement or
the JAA Fiduciary Transfer and the FI Trustee will not
consent to any modification, supplement or waiver of the FI
Trust Agreement, the Operator Replacement Agreement, the
Surat Kuasa, the RTZ Release or the Fiduciary Assignment.
Notwithstanding any other provision of this
Article VIII, the Administrative Agent will, at the request
of FCX or PTFI, instruct the FI Trustee, the Security Agent
and/or the JAA Security Agent, as applicable, to release (or
to subordinate such interest) from the FI Trust Agreement
and/or the FCX Pledge Agreements and/or the Lender Security
Agreement and/or the other FI Security Documents, as
applicable (and enter into an amendment to the FI Trust
Agreement and/or the FCX Pledge Agreements and/or the Lender
Security Agreement and/or the other FI Security Documents
and execute such other instruments as may be necessary in
connection therewith), any interest of the FI Trustee, the
Security Agent and/or the JAA Security Agent, as applicable,
upon receipt by the Administrative Agent of a certificate
from a Financial Officer of PTFI 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 assets (which may
either be released from the Lien of the FI Security
Documents or the FCX Pledge Agreements 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, transfers or
other dispositions, secured financings, capital leases and
sale leaseback transactions and pledges of assets expressly
permitted hereby. In addition, upon consummation of a PT
Kencana Financing, to the extent requested in a certificate
from a Financial Officer of PTFI, which certificate shall
certify that after giving effect to the release of such
Guarantee no Default or Event of Default shall occur or be
continuing, PT Kencana and/or PT Kencana, as applicable,
shall automatically be released from its Guarantee. It is
understood and agreed that releases in connection with this
paragraph shall not require any further consent of the
Required Lenders or the Barclays Creditors.
The Administrative Agent is hereby authorized to,
and to instruct the FI Trustee and the JAA Security Agent
to, enter into or consent to an amendment to the
Participation Agreement or other RTZ Documents permitting
PTFI to incur Indebtedness of the type permitted by Section
6.01(a)(iv) hereof in an aggregate amount of up to
$50,000,000 at any time outstanding without the necessity of
the holders of such Indebtedness becoming party to the Side
Letter. Such amendment or consent will not require any
further consent of the Required Lenders.
By executing this Agreement, Barclays, in its
capacity as the lender under the Barclays Loan Agreement and
as a Secured Party under the Security Documents, agrees to
the provisions of this Article VIII and agrees that the
Agents and the FI Trustee will be entitled to all the
benefits, exculpations, authorizations and other provisions
of this Article VIII in connection with their actions,
duties and obligations under the Security Documents in
respect of the Barclays Obligations. Barclays further
agrees that each assignee of any of the Barclays Obligations
shall be bound by the agreements set forth in this paragraph
and shall at the time of any such assignment promptly
deliver to the Administrative Agent a power of attorney
appointing the Agents as set forth in, and agreeing to the
provisions of, this Article VIII.
ARTICLE IX
Guarantee
As consideration for the Lenders' obligations to
lend to PTFI hereunder, FCX hereby unconditionally and
irrevocably guarantees, as a primary obligor and not merely
as a surety, the due and punctual payment of (i) the
principal of and interest on each Loan to PTFI, when and as
due, whether at maturity, by acceleration, by notice of
prepayment or otherwise, (ii) all other monetary obligations
of PTFI to the Lenders, the Agents and the FI Trustee under
this Agreement and the other Loan Documents, (iii) all
amounts owing by PTFI to any Lender pursuant to any
Permitted Secured Hedge with PTFI and (iv) all other
Obligations of PTFI (collectively, the "PTFI Obligations").
As consideration for the Lenders' obligations to lend to FCX
hereunder, PTFI hereby unconditionally and irrevocably
guarantees, as a primary obligor and not merely as a surety,
the due and punctual payment of (i) the principal of and
interest on each Loan to FCX when and as due, whether at
maturity, by acceleration, by notice of prepayment or
otherwise, (ii) all other monetary obligations of FCX to the
Lenders, the Agents and the FI Trustee under this Agreement
and the other Loan Documents (including, without limitation,
under Section 2.19 and Article VII), (iii) all amounts owing
by FCX to any Lender pursuant to any Permitted Secured Hedge
with FCX and (iv) all other Obligations of FCX
(collectively, the "FCX Obligations", and together with the
PTFI Obligations, the "Guaranteed Obligations"). Each of
FCX and PTFI further agrees that the PTFI Obligations or the
FCX Obligations, as the case may be, 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 PTFI Obligation or FCX Obligation, as applicable.
FCX waives presentment to, demand of payment from
and protest to PTFI of any of the PTFI Obligations, and PTFI
waives presentment to, demand of payment from and protest to
FCX of any of the FCX Obligations, and each Borrower also
waives notice of acceptance of its guarantee and notice of
protest for nonpayment. The obligations of FCX and PTFI
under this Article IX shall not be affected by (a) the
failure of any Lender, any Agent or the FI Trustee to assert
any claim or demand or to enforce any right or remedy
against PTFI or FCX, respectively, 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 guarantee or any other agreement; (c)
the release of any security held by any Lender, any Agent or
the FI Trustee for the Guaranteed Obligations guaranteed by
it or any of them or (d) the failure of any Lender, any
Agent or the FI Trustee to exercise any right or remedy
against any other guarantor of the PTFI Obligations or FCX
Obligations, respectively.
Each of FCX and PTFI further agree 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 Lender, any Agent or the FI Trustee to
any security held for payment of the PTFI Obligations or of
the FCX Obligations or to any balance of any deposit account
or credit on the books of such Lender in favor of PTFI or
FCX, as applicable, or any other Person.
The obligations of FCX or PTFI under this Article
IX 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 PTFI Obligations or the FCX
Obligations, respectively, or otherwise. Without limiting
the generality of the foregoing, the obligations of FCX or
PTFI under this Article IX shall not be discharged or
impaired or otherwise affected by the failure of any Lender,
any Agent or the FI Trustee to assert any claim or demand or
to enforce any remedy under this Agreement, 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 PTFI Obligations or the
FCX Obligations, respectively, or by any other act or
omission which may or might in any manner or to any extent
vary the risk of FCX or PTFI, or otherwise operate as a
discharge of FCX or PTFI as a matter of law or equity.
Each of FCX and PTFI further agree 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 Guaranteed
Obligation guaranteed by it (including, without limitation,
any payment pursuant to this guarantee) is rescinded or must
otherwise be restored by any Lender, any Agent or the FI
Trustee upon the bankruptcy or reorganization of PTFI or
FCX, respectively, or otherwise.
In furtherance of the foregoing and not in
limitation of any other right which any Lender, any Agent or
the FI Trustee may have at law or in equity against FCX or
PTFI by virtue hereof, upon the failure of FCX or PTFI,
respectively, to pay any of the PTFI Obligations or the FCX
Obligations, respectively, when and as the same shall become
due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, each of FCX and PTFI hereby
promises to and will, upon receipt of written demand by any
Lender, any Agent or the FI Trustee, forthwith pay, or cause
to be paid, to the Administrative Agent for distribution to
the Lenders, the Agents or the FI Trustee, as appropriate,
in cash the amount of such unpaid PTFI Obligations or FCX
Obligations, as the case may be, and at such time as all
such PTFI Obligations or FCX Obligations owing to such
Lender, such Agent, or the FI Trustee as applicable, have
been indefeasibly paid in full and its Commitment
terminated, such Lender shall, in a reasonable manner,
assign the amount of such PTFI Obligations or FCX
Obligations, as applicable, owed to it and paid by FCX or
PTFI pursuant to this guarantee to FCX or PTFI, such
assignment to be pro tanto to the extent to which the PTFI
Obligations or FCX Obligations in question were discharged
by FCX of PTFI, as applicable, or make such other
disposition thereof as FCX or PTFI shall direct (all without
recourse to such Lender, such Agent or the FI Trustee, as
applicable, and without any representation or warranty by
such Lender, such Agent or the FI Trustee, as applicable).
Upon payment by FCX or PTFI of any sums to a
Lender, an Agent or the FI Trustee as provided above in this
Article IX, all rights of FCX against PTFI or of PTFI
against FCX arising as a result thereof by way of right of
subrogation or otherwise (a) shall in all respects be
subordinated and junior in right of payment to the prior
indefeasible payment in full of all the PTFI Obligations or
FCX Obligations, as applicable, to the Lenders, the Agents
and the FI Trustee and (b) shall not be exercised by FCX or
PTFI, as applicable, prior to indefeasible payment in full
of all Loans and termination of the Commitments hereunder.
Notwithstanding the foregoing, PTFI hereby waives all rights
of subrogation against FCX arising as a result of any
payment by PTFI under this Article IX including, without
limitation, all rights to any proceeds from a liquidation of
FCX.
To the extent that the laws of the Republic of
Indonesia are applicable to this Article IX, PTFI hereby
waives any and all rights and privileges accorded by those
laws to a guarantor, including without limitation the rights
and privileges contained in Articles 1430, 1831, 1833, 1837,
and 1847 through 1849 of the Indonesian Civil Code.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of
notices and other communications expressly permitted to be
given by telephone, all notices and other communications
provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as
follows:
(a) if to either Borrower, to it at Freeport-
McMoRan Copper & Gold Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of Treasurer (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to The Chase
Manhattan Bank, Agent Bank Services, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (212) 552-
5658), with a copy to The Chase Manhattan Bank, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(c) if to any other Lender, to it at its address
(or telecopy number) set forth in its Administrative
Questionnaire.
Any party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to
the other parties hereto. All notices and other
communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have
been given on the date of receipt. Any notice delivered to
FCX hereunder shall be deemed also to have been given to
PTFI, and such notice shall be deemed to have been given to
PTFI on the day it is deemed to have been given to FCX.
SECTION 10.02. Waivers; Amendments. (a) No
failure or delay by any Agent, any Lender, the Issuing Bank
or the FI Trustee in exercising any right or power hereunder
or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other
or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents, the
Lenders, the Issuing Bank and the FI Trustee hereunder and
under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section, and
then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making
of a Loan or the issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether
any Agent, any Lender, the Issuing Bank or the FI Trustee
may have had notice or knowledge of such Default at the
time.
(b) Neither this Agreement nor any other Loan
Document nor any provision hereof or thereof may be waived,
amended or modified except, in the case of this Agreement,
pursuant to an agreement or agreements in writing entered
into by each Borrower and the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or
agreements in writing entered into by the Agents and the
Loan Party or Loan Parties that are parties thereto, in each
case with the consent of the Required Lenders; provided that
no such agreement shall (i) increase the Commitment of any
Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or LC Disbursement
or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each
Lender affected thereby, (iii) postpone the maturity of any
Loan, or any scheduled date of payment of the principal
amount of any Term Loan under Section 2.09, or the required
date of reimbursement of any LC Disbursement under Section
2.05, or any date for the payment of any interest or fees
payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.17(b) or
(c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of
each Lender, (v) change any of the provisions of this
Section or the percentage set forth in the definition of
"Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders (or
Lenders of any Class) required to waive, amend or modify any
rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each
Lender (or each Lender of such Class, as the case may be),
(vi) change Section 6.20 without the written consent of the
Majority Lenders,(vii) release either FCX or PTFI from its
Guarantee hereunder or limit its liability in respect of
such Guarantee, without the written consent of each Lender,
(viii) release all or substantially all the Collateral from
the Liens of the Security Documents, without the written
consent of each Lender or (ix) change any provisions of any
Loan Document in a manner that by its terms adversely
affects the rights in respect of payments due to Lenders
holding Loans of any Class differently than those holding
Loans of any other Class, without the written consent of
Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each affected Class;
provided further that (A) no such agreement shall amend,
modify or otherwise affect the rights or duties of any Agent
or the Issuing Bank without the prior written consent of
such Agent or the Issuing Bank, as the case may be, (B) any
waiver, amendment or modification of this Agreement that by
its terms affects the rights or duties under this Agreement
of one Class of Lenders (but not the other Classes of
Lenders) may be effected by an agreement or agreements in
writing entered into by each Borrower and requisite
percentage in interest of the affected Class of Lenders that
would be required to consent thereto under this Section if
such Class of Lenders were the only Class of Lenders
hereunder at the time and (C) any amendment or waiver of the
provisions of this Agreement or any other Loan Document
required in order to permit a receivables financing or
receivables securitization transaction shall (so long as the
Net Proceeds attributable to the Indebtedness or issuance to
investors of debt or equity securities in connection
therewith are applied to Reductions of the Facilities in the
same manner as the Net Proceeds from a Debt Issuance)
require only the approval of the Majority Lenders.
SECTION 10.03. Expenses; Indemnity; Damage
Waiver. (a) Each Borrower agrees, jointly and severally,
to pay (i) all reasonable out-of-pocket expenses incurred by
each Agent and its Affiliates and the FI Trustee, including
the reasonable fees, charges and disbursements of counsel
for each Agent, in connection with the syndication of the
credit facilities provided for herein, the preparation and
administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether
or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance
of any Letter of Credit or any demand for payment thereunder
and (iii) all out-of-pocket expenses incurred by any Agent,
the FI Trustee, the Issuing Bank or any Lender, including
the fees, charges and disbursements of any counsel for any
Agent, the FI Trustee, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights
in connection with the Loan Documents, including its rights
under this Section, or in connection with the Loans made
hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations
in respect of such Loans.
(b) Each Borrower agrees, jointly and severally,
to indemnify each Agent, each Lender, the Issuing Bank and
the FI Trustee, and each Related Party of any of the
foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or
delivery of any Loan Document or any other agreement or
instrument contemplated hereby, the performance by the
parties to the Loan Documents of their respective
obligations thereunder or the consummation of the
Transactions or any other transactions contemplated hereby,
(ii) any Loan or Letter of Credit or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property currently or
formerly owned or operated by either Borrower or any of its
Subsidiaries, or any Environmental Liability related in any
way to either Borrower or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether
based on contract, tort or any other theory and regardless
of whether any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities
or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of
such Indemnitee.
(c) To the extent that either Borrower fails to
pay any amount required to be paid by it to any Agent, the
Issuing Bank or the FI Trustee, under paragraph (a) or (b)
of this Section, each Lender and each Barclays Creditor
severally agrees to pay to the applicable Agent, the Issuing
Bank or the FI Trustee, as the case may be, such Person's
pro rata share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was
incurred by or asserted against such Agent, the Issuing Bank
or the FI Trustee as the case may be, in its capacity as
such. For purposes hereof, a Lender's or Barclays
Creditor's "pro rata share" shall be determined based upon
its share of the sum of the total Revolving Exposures,
outstanding Term Loans, unused Commitments and outstanding
loans under the Barclays Loan Agreement at the time;
provided, however, that the Barclays Creditors will not be
required to make any payment under this paragraph in respect
of any unreimbursed expense or indemnity claim that does not
relate to or arise under any Security Document or relate to
or arise out of any remedies or other actions in respect of
Collateral, and each Lender's "pro rata share" in the case
of any such unreimbursed expense or indemnity payment shall
be based upon its share of the sum of the total Revolving
Exposure, outstanding Term Loans and unused Commitments at
the time. If any action, suit or proceeding arising from
any of the foregoing is brought against any Lender, any
Agent, the Issuing Bank, the FI Trustee or other Person
indemnified or intended to be indemnified pursuant to this
Section 10.03, PTFI 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 PTFI and FCX
(which counsel shall be satisfactory to such Lender, such
Agent, the Issuing Bank, the FI Trustee or other Person
indemnified or intended to be indemnified). If PTFI 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 PTFI or FCX contained in this Agreement shall be
breached, any Lender, the FI Trustee, the Issuing Bank or
any Agent may (but shall not be obligated to) do the same or
cause it to be done or remedy any such breach, and may
expend its funds for such purpose. Any and all amounts so
expended by any Lender, the FI Trustee, the Issuing Bank or
any Agent shall be repayable to it by PTFI and FCX
immediately upon such Person's demand therefor. Barclays
agrees to cause any assignee of Barclays Obligations that
becomes a Barclays Creditor to be bound by the provisions of
this paragraph (c).
(d) To the extent permitted by applicable law,
neither Borrower shall assert, and each hereby waives, any
claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be
payable not later than 10 days after written demand
therefor.
SECTION 10.04. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of
Credit), except that neither Borrower may assign or
otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by either Borrower
without such consent shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any
Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Agents, the
Issuing Bank, the FI Trustee and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this
Agreement.
(b) Any Lender may assign to one or more
assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided
that (i) except in the case of an assignment to a Lender or
a Lender Affiliate, each of the Borrowers and the
Administrative Agent (and, in the case of an assignment of
all or a portion of a Revolving Commitment or any Lender's
obligations in respect of its LC Exposure, the Issuing Bank)
must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld, it being
understood that the Borrowers may withhold their consent to
an assignment to a Lender (i) that is not a commercial bank
or savings and loan institution or (ii) that would, as of
the effective date of such assignment, be entitled to claim
compensation under Section 2.14 which the transferor Lender
would not be entitled to claim as of such date), (ii) except
in the case of an assignment to a Lender or a Lender
Affiliate or an assignment of the entire remaining amount of
the assigning Lender's Commitment or Loans, the amount of
the Commitment or Loans of the assigning Lender subject to
each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrowers and the
Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate
part of all the assigning Lender's rights and obligations
under this Agreement, (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and
recordation fee of $3,500, and (v) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire; and provided further that
any consent of the Borrowers otherwise required under this
paragraph shall not be required if an Event of Default under
clause (h) or (i) of Article VII has occurred and is
continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after
the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16
and 10.03). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of
this Agreement as a sale by such Lender of a participation
in such rights and obligations in accordance with paragraph
(e) of this Section.
(c) The Administrative Agent, acting for this
purpose as an agent of the Borrowers, shall maintain at one
of its offices in The City of New York a copy of each
Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders,
and the Commitment of, and principal amount of the Loans and
LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the
Agents, the Issuing Bank, the FI Trustee and the Lenders may
treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by
the Borrowers, any Agent, the Issuing Bank, the FI Trustee
and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Lender
and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to
such assignment required by paragraph (b) of this Section,
the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in
the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(e) Any Lender may, without the consent of, or
notice to, the Borrowers, the Administrative Agent or the
Issuing Bank, sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the
Borrowers, the Agents, the Issuing Bank, the FI Trustee and
the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement and (iv) such Lender will
continue to give prompt attention to and process (including,
if required, through discussions with Participants) requests
for waivers or amendments hereunder. Any agreement or
instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain
the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of
the Loan Documents; provided that such agreement or
instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to
Section 10.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrowers agree that each
Participant shall be entitled to the benefits of Sections
2.14, 2.15 and 2.16 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant
to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the
benefits of Section 10.08 as though it were a Lender,
provided such Participant agrees to be subject to Section
2.17(c) as though it were a Lender.
(f) A Participant shall not be entitled to
receive any greater payment under Section 2.14 or 2.16 than
the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is
made with the Borrowers' prior written consent. A
Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.16
unless the Borrowers are notified of the participation sold
to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 2.16(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to
a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
SECTION 10.05. Survival. All covenants,
agreements, representations and warranties made by the Loan
Parties in the Loan Documents and in the certificates or
other instruments delivered in connection with or pursuant
to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of the
Loan Documents and the making of any Loans and issuance of
any Letters of Credit, regardless of any investigation made
by any such other party or on its behalf and notwithstanding
that any Agent, the FI Trustee or any Lender may have had
notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest
on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitments have
not expired or terminated. The provisions of Sections 2.14,
2.15, 2.16 and 10.03 and Article VIII shall survive and
remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the
Commitments or the termination of this Agreement or any
provision hereof.
SECTION 10.06. Counterparts; Integration;
Effectiveness. (a) This Agreement may be executed in
counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a
single contract. This Agreement, the Put Agreement, the
other Loan Documents and any separate letter agreements with
respect to fees payable to any Agent constitute the entire
contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and
their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
(b) All fees and interest accruing under the
Existing FCX Agreement and the Existing FCX/PTFI Agreement
at any time prior to the Effective Date shall accrue at the
rates and be payable at the times specified therein; on and
after the Effective Date, fees and interest shall accrue and
be payable in respect of the indebtedness and commitments
under such agreements as specified in this Agreement,
pursuant to which each such agreement has been amended and
restated. Except as provided above, on and after the
Effective Date, the provisions of this Agreement, including
without limitation in respect of Taxes, indemnities and cost
reimbursements, will apply to the Tranche A Facility and the
Tranche B Facility as in effect under the Existing PTFI
Agreement and the Existing FCX/PTFI Agreement, prior to the
Effective Date.
SECTION 10.07. Severability. Any provision of
this Agreement held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and
the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any
other jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of
Default shall have occurred and be continuing, each Lender
and each of its Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender
or Affiliate to or for the credit or the account of either
Borrower against any of and all the obligations of either
Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender
shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights
and remedies (including other rights of setoff) which such
Lender may have.
SECTION 10.09. Governing Law; Jurisdiction;
Consent to Service of Process; Sovereign Immunity. (a)
This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State
of New York sitting in New York County and of the United
States District Court of the Southern District of New York,
and any appellate court from any thereof, in any action or
proceeding arising out of or relating to any Loan Document,
or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall
affect any right that any Agent, the Issuing Bank, any
Lender or the FI Trustee may otherwise have to bring any
action or proceeding relating to this Agreement or any other
Loan Document against either Borrower or its properties in
the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in
paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably
consents to service of process in the manner provided for
notices in Section 10.01. Nothing in this Agreement or any
other Loan Document will affect the right of any party to
this Agreement to serve process in any other manner
permitted by law.
(e) To the extent that PTFI may now or hereafter
be entitled, in any jurisdiction in which judicial
proceedings may at any time be commenced with respect to any
Loan Document, 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 PTFI such an
immunity (whether or not claimed), PTFI hereby irrevocably
agrees not to claim and hereby irrevocably waives such
immunity.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section
headings and the Table of Contents used herein are for
convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the
Agents, the FI Trustee, the Issuing Bank and the Lenders
agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to
whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to
keep such Information confidential), (b) to the extent
requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to
this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding
relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same
as those of this Section, to (i) any actual or prospective
assignee of or Participant in any of its rights or
obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or
derivative transaction relating to either Borrower and its
obligations, (g) with the consent of the Borrowers or (h) to
the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii)
becomes available to any Agent, the Issuing Bank or any
Lender on a nonconfidential basis from a source other than
either Borrower. For the purposes of this Section,
"Information" means all information received from or on
behalf of either Borrower relating to either Borrower or its
business, other than any such information that is available
to any Agent, the Issuing Bank, the FI Trustee or any Lender
on a nonconfidential basis prior to disclosure by either
Borrower. Any Person required to maintain the
confidentiality of Information as provided in this Section
shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care
to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 10.13. Interest Rate Limitation.
Notwithstanding anything herein 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"), shall exceed the maximum lawful rate (the
"Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable
in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but
were not payable as a result of the operation of this
Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or 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 Lender.
SECTION 10.14. Judgment Currency. The
specification of payment in dollars and in New York City,
New York, with respect to amounts payable to any Lender (or
permitted assignee or Participant), any Agent or 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 PTFI 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
PTFI and FCX in respect of any such sum due from it to any
Agent, the FI Trustee or any Lender (or permitted assignee
or Participant) hereunder or under any other Loan Document
(an "entitled person") shall, notwithstanding the rate of
exchange actually applied in rendering such judgment, be
discharged only to the extent that on the Business Day
following receipt by such entitled person of any sum
adjudged to be due hereunder or under any other Loan
Document in the second currency such entitled person may in
accordance with normal banking procedures purchase in the
free market and transfer to New York City dollars with the
amount of the second currency so adjudged to be due; and
PTFI 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 10.15. Joint and Several Obligations.
Whenever in this Agreement or any other Loan Document any
payment obligation or other obligation is expressed as an
obligation of the Borrowers, each of the Borrowers shall be
jointly and severally liable for the full payment and
performance of such obligation.
SECTION 10.16. RTZ Transactions. PTFI hereby (i)
appoints the Administrative Agent to be the Operator
Selection Representative for all purposes of the FI Trust
Agreement, the Operator Replacement Agreement and the Surat
Kuasa and (ii) irrevocably and unconditionally agrees that
upon the occurrence of an Event of Default, the
Administrative Agent may, in addition to any other remedy
available hereunder or under any other Loan Document, remove
PTFI as Operator under the Contract of Work and appoint a
replacement Operator, which shall be PT-Rio Tinto Indonesia
or an Affiliate of PT-Rio Tinto Indonesia designated by PT-
Rio Tinto Indonesia if PT-Rio Tinto Indonesia timely elects
to exercise its designation rights provided in Section 2(a)
of the Operator Replacement Agreement and meets the other
conditions to such designation right set forth in such
Section 2(a). PTFI also irrevocably and unconditionally
agrees that the Administrative Agent, acting as the Operator
Selection Representative under the FI Trust Agreement, the
Operator Replacement Agreement and the Surat Kuasa, shall
also have the right to designate a successor Operator under
the circumstances provided in Section 2(b) of the Operator
Replacement Agreement. PTFI further agrees that it will not
appoint any other Operator Selection Representative other
than the Administrative Agent (or, except as provided to PT-
Rio Tinto Indonesia in the Participation Agreement, grant
any other Person the right to remove PTFI (or any successor
operator for the Project) as Operator under any
circumstances) and that it will not approve or enter into
any management agreement with a successor Operator appointed
under the Operator Replacement Agreement unless and until
the Administrative Agent has approved the terms of such
management agreement. PTFI also agrees that the
Administrative Agent shall be entitled to exercise PTFI's
rights under the Participation Agreement (including the
financial and accounting procedures) referred to in Section
6(c) of the FI Intercreditor Agreement to the exclusion of
PTFI after the occurrence of an Event of Default, in
addition to the other rights and remedies available to the
Agents and the Lenders under the Loan Documents and
applicable law. Each of the Agents, the Lenders, PTFI and
FCX acknowledge that the FI Trust Agreement will not
terminate prior to termination of the Participation
Agreement.
SECTION 10.17. Waiver Under Existing PTMI
Agreement and Amendments of Put Agreement. Upon the
occurrence of the Effective Date, each Tranche 1 Lender
hereby waives any "Event of Default" (as defined in the
Existing PTMI Agreement) arising under Section 9.01(m) of
the Existing PTMI Agreement. FCX, each Tranche 1 Lender and
Chase, in its capacity as "Security Agent" under the Put
Agreement, agree that, effective as of the Effective Date,
the Put Agreement shall be amended by deleting clause
(b)(vi) from the first sentence of Section 3 thereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective
authorized officers as of the day and year first above
written.
FREEPORT MCMORAN COPPER & GOLD INC.,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President & Treasurer
PT FREEPORT INDONESIA,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent, Issuing
Bank, Security Agent, JAA
Security Agent and
Documentation Agent,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
U.S. BANK TRUST NATIONAL
ASSOCIATION, as FI Trustee,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BARCLAYS BANK plc,
individually and as lender
under the Barclays Loan
Agreement,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
SUMITOMO MITSUI BANKING
CORPORATION,
by
/s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
UBS AG,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Director
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Director
Recovery Management
BNP PARIBAS,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
BANK OF MONTREAL,
by
/s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Director
THE FUJI BANK, LIMITED,
by
/s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: General Manager
HSBC BANK USA,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: First Vice President
BANK ONE, NA,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director, Corporate
Banking
BANK OF AMERICA, N.A.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
THE BANK OF NOVA SCOTIA,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Assistant Agent
THE SANWA BANK, LIMITED,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
HIBERNIA NATIONAL BANK,
by
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF TOKYO-MITSUBISHI,
LTD.,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Mgr.
DEUTSCHE BANK AG, ACTING
THROUGH ITS SINGAPORE OFFICE,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Managing Director
by
/s/ Soon-Heng Low
Name: Soon-Heng Low
Title: Senior Legal Counsel
Asia Pacific Head Office
PT BANK NEGARA INDONESIA (PERSERO) TBK,
by
/s/ Bomen Lumbanraja
Name: Bomen Lumbanraja
Title: General Manager
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INC.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
ABN AMRO BANK N.V.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
by
/s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
ARAB BANKING CORP.,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Deputy General Manager
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED, CAYMAN
ISLAND BRANCH,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
THE NORINCHUKIN BANK, NEW YORK BRANCH
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: General Manager
CHRISTIANIA BANK OG
KREDITKASSE ASA NEW YORK
BRANCH,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: First Vice President
THE CHUO MITSUI TRUST &
BANKING CO., LTD.,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Manager
BAYERISCHE HYPO- UND
VEREINSBANK AG NEW YORK
BRANCH,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Associate Director
BANK RAKYAT INDONESIA
(PERSERO) NEW YORK AGENCY,
by
/s/ Wibowo Notosuwarto
Name: Wibowo Notosuwarto
Title: General Manager and Dep.
General Manager
by
/s/ Isnen Sutopo
Name: Isnen Sutopo
Title: Manager
SOCIeTe GeNeRALE,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
THE TOKAI BANK, LIMITED-NEW
YORK BRANCH,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Deputy General Manager
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH,
by
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
Credit Department
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: Associate Director