Exhibit
EXECUTION COPY
FIFTH AMENDMENT dated as of July 17,
1995 (this "Amendment"), to the Credit
Agreement dated as of October 27, 1989, as
previously amended through the Fourth
Amendment, Consent and Limited Waiver thereto
dated as of November 23, 1994 (as heretofore
amended, the "Existing Credit Agreement"),
among P.T. FREEPORT INDONESIA COMPANY, a
limited liability company organized under the
laws of Indonesia and also domesticated in
Delaware ("FI"), FREEPORT-McMoRAN COPPER &
GOLD INC., a Delaware corporation ("FCX"),
FREEPORT-McMoRan INC., a Delaware corporation
("FTX"; FI, FCX and FTX being, collectively,
the "Transaction Parties"), the undersigned
banks (collectively, the "Lenders"), FIRST
TRUST OF NEW YORK, NATIONAL ASSOCIATION (as
successor to Morgan Guaranty Trust Company of
New York), acting as trustee for the Banks
(as herein defined) under the FI Trust
Agreement (in such capacity, the "FI
Trustee") and, acting in the capacity of FI
Trustee, as security agent for the Banks
under the FI Security Documents (as herein
defined), for purposes of Article VIII of the
Amended Credit Agreement (as herein defined)
only, CHEMICAL BANK, as agent for the Banks
under the Existing Credit Agreement (in such
capacity, the "Agent"), CHEMICAL BANK, as
Administrative Agent for the Banks under the
Amended Credit Agreement (in such capacity,
the "Administrative Agent"), and as FCX
collateral agent for the Banks (in such
capacity, the "FCX Collateral Agent") under
the FCX Collateral Agreement referred to
below, and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION) ("Chase"), as documentary agent
for the Banks under the Amended Credit
Agreement (the "Documentary Agent"; the
Administrative Agent, the FCX Collateral
Agent and the Documentary Agent being
referred to herein as the "Agents").
The Transaction Parties, certain of the Lenders,
the FI Trustee and the Agent are parties to the Existing
Credit Agreement. The Transaction Parties have advised the
other parties hereto that FTX intends to distribute to its
shareholders all shares of FCX owned by it, thereby leaving
FTX as a holding company for FRP, and FCX as the publicly
held holding company for FI (such distribution, to be on a
generally tax-free basis (with exceptions approved by the
Administrative Agent), together with arrangements required
or effectuated in connection with such distribution (and the
RTZ Stock Purchase Agreement referred to in the FCX Credit
Agreement defined below) with respect to existing
contractual agreements and indebtedness of FTX, FRP, FCX and
FI, all on terms approved by the Banks (including all tax,
accounting, corporate and partnership matters) being
referred to herein as the "Restructuring").
The Transaction Parties wish to amend the Existing
Credit Agreement to provide, among other things, for
(i) deletion of provisions relating to FTX and FRP and other
modifications to provide to FI the benefit of the modified
covenants and agreements which the Banks are providing to FI
pursuant to a new $200 million credit agreement (the "FCX
Credit Agreement") dated as of June 30, 1995, among FI, FCX,
the banks party thereto, First Trust of New York, National
Association, Chemical Bank, as Administrative Agent and FCX
Collateral Agent and The Chase Manhattan Bank (National
Association), as Documentary Agent (the Existing Credit
Agreement as amended by Section 3 of this Amendment being
the "Amended Credit Agreement"), (ii) the termination of the
Commitments of certain of the Lenders which are presently
parties to the Existing Credit Agreement (the "Departing
Banks") and their withdrawal as parties to the Amended
Credit Agreement, (iii) the Lenders listed on the signature
pages hereto under the caption "Additional Banks" to become
"Banks" for all purposes under the Amended Credit Agreement
with the Commitments set forth on Schedule II hereto next to
their names, (iv) the Lenders which are presently party to
the Existing Credit Agreement but which are not Departing
Banks (the "Continuing Banks") to continue to be "Banks"
under the Amended Credit Agreement but with their
Commitments modified to be the Commitments listed on
Schedule II hereto next to their names (for purposes of this
Amendment and the Amended Credit Agreement, the term "Banks"
shall mean the Additional Banks and the Continuing Banks),
(v) the division of the existing role of Agent into separate
roles of Administrative Agent (with Chemical Bank to become
the Administrative Agent) and Documentary Agent (with Chase
becoming the Documentary Agent), each with the respective
responsibilities and roles set forth in Article VIII of the
Amended Credit Agreement, (vi) the release of FTX's
guarantee of the borrowings of FI under the Existing Credit
Agreement, with FTX ceasing to be a party to the Amended
Credit Agreement, (vii) the pledge by FCX of the shares of
FI owned by it to secure its guarantee of FI's borrowings
under the Amended Credit Agreement and borrowings by FCX or
FI under the FCX Credit Agreement pursuant to the FCX Pledge
Agreement, (viii) certain changes in the interest rates
payable on the Loans to those set forth on Schedule I hereto
and administrative procedures for the Loans as provided in
the Amended Credit Agreement and (ix) certain other changes
to the terms and conditions of the Existing Credit
Agreement, including the representations and warranties and
covenants provided therein, to reflect the Restructuring and
the amendments referred to above and certain other
arrangements between the Transaction Parties and the Banks.
In order to accomplish such amendments, the
Transaction Parties, the Lenders and the Agent have
determined that certain amendments to the Existing Credit
Agreement are required. Accordingly, the Transaction
Parties, the Lenders, the FI Trustee, Chemical Bank (as
Agent, Administrative Agent and FCX Collateral Agent)and
Chase (as Documentary Agent) agree as follows:
SECTION 1. Defined Terms, etc. Capitalized terms
used but not defined herein shall have the meanings assigned
to such terms in Section 1.1 of the Amended Credit
Agreement. Unless otherwise stated, Section, Article,
Exhibit and Schedule references made herein are to Sections,
Articles, Exhibits and Schedules, as the case may be, of
this Amendment.
SECTION 2. Amendment Closing, Amendment Closing
Date; Termination. (a) The transactions provided for in
Sections 3 and 4 shall be consummated at a closing (the
"Amendment Closing") to be held on the Fifth Amendment
Closing Date (as defined herein) at the offices of Cravath,
Swaine & Moore, New York, New York, and/or at such other
time and place as the parties shall agree.
(b) The "Fifth Amendment Closing Date" shall be
the date as of which all the conditions set forth in
Section 6 shall have been satisfied.
(c) Notwithstanding anything herein to the
contrary, this Amendment shall terminate and be of no force
or effect if the Amendment Closing shall not have occurred
on or prior to September 30, 1995. In the event of such
termination, the Existing Credit Agreement shall continue in
full force as in effect on the date hereof.
(d) Without limitation of Section 3(a)(21), and
in addition thereto, the Continuing Banks and the Additional
Banks shall also be entitled to receive a Commitment Fee on
the entire amount of their Commitment set forth on
Schedule I hereto for the period commencing with June 30,
1995, until the earlier of (i) the Fifth Amendment Closing
Date and (ii) the date the Commitments of the Continuing
Banks and the Additional Banks are terminated.
SECTION 3. Amendment of the Existing Credit
Agreement; Change of Agents. (a) Effective as of the Fifth
Amendment Closing Date, the Existing Credit Agreement
(including the exhibits and schedules thereto) shall be
amended as follows:
(1) All capitalized terms used in the Amended
Credit Agreement but not separately defined in this
Amendment which are defined in the FCX Credit Agreement
shall have the meanings ascribed to such terms in the
FCX Credit Agreement and shall be deemed added to the
Amended Credit Agreement and all capitalized terms
defined in the Existing Credit Agreement which have
been differently defined in the FCX Credit Agreement,
shall be replaced with definitions from, or referring
to, the FCX Credit Agreement, in each such case
modified if and as appropriate such that references
therein are correct (e.g., references to the FI Credit
Agreement shall, as used in the Amended Credit
Agreement, instead where appropriate be deemed to be
references to the FCX Credit Agreement, references to
the Closing Date, and the FCX Funding Date shall be
replaced by references to the "Fifth Amendment Closing
Date" and references to the "FI Funding Date" shall not
be added to the Amended Credit Agreement). All terms
defined in the Existing Credit Agreement but no longer
used in the Amended Credit Agreement shall be deleted.
Exhibits and Schedules to the Existing Credit Agreement
shall be replaced in accordance with the foregoing.
(2) All references to "FTX" shall be replaced by
"FCX" except in such instances where such replacement
would be duplicative, in which case "FTX" shall be
deleted. All references to FRP shall be deleted.
(3) All references to "Permitted Secured Swap"
shall be replaced by "Permitted Secured Hedge",
references to the Closing Date, and references to the
FCX Funding Date and to the Amendment Closing Date
shall be replaced by references to the "Fifth Amendment
Closing Date" and references to the "FI Funding Date"
shall not be added to the Amended Credit Agreement.
(4) Any reference to "Borrowers" or a "Borrower"
in any section incorporated by reference from the FCX
Credit Agreement shall be deemed, if such reference is
to the Person who is a borrower under the Amended
Credit Agreement, to be a reference to FI as the sole
Borrower under the Amended Credit Agreement or, if such
reference is to FCX and/or FI in some other capacity,
to be a reference to FCX and FI, or to FCX or FI, as
the case may be.
(5) All references to "Guarantor" or "Guarantors"
shall be deemed to be references to FCX.
(6) All references to any "Major Subsidiary" or
to "Major Subsidiaries" shall be deemed to be
references to FI.
(7) All provisions relating to CD Rate Loans and
the related CD pricing shall be eliminated.
(8) The following definitions shall be added to
Section 1.1 in the appropriate alphabetical location:
"FCX Agent" means Chemical as administrative agent for
the FCX Lenders under the FCX Credit Agreement.
"FCX Agreement Notes" means the promissory notes of FCX
issued to the FCX Lenders pursuant to the FCX Credit
Agreement.
"FCX Credit Agreement" means the Credit Agreement dated
as of June 30, 1995, among FI, FCX, the FCX Lenders,
the FI Trustee, the FCX Agent and the Documentary
Agent, as the same may be amended and in effect from
time to time.
"FCX Credit Agreement Loan" means any loan made by the
FCX Lenders pursuant to the FCX Credit Agreement.
"FCX Credit Agreement Loan Exposure" means the
aggregate amount of unpaid principal of all FCX Credit
Agreement Loans made by the FCX Lenders.
"FCX Credit Agreement Total Commitment" means
$200,000,000, the committed amount under the FCX Credit
Agreement, as the same may be permanently terminated or
reduced from time to time.
"FCX Credit Event" means the making of an FCX Credit
Agreement Loan.
"FCX Lenders" means the banks party to the FCX Credit
Agreement.
"Fifth Amendment" means the Fifth Amendment hereto
dated as of the Fifth Amendment Closing Date.
"Fifth Amendment Closing Date" has the meaning assigned
such term in Section 2(b) of the Fifth Amendment.
References throughout the Credit Agreement to the FTX
Credit Agreement and related terms shall be replaced
with references to the FCX Credit Agreement.
(9) Section 1.2 shall be amended by adding the
following sentence at the end of such section:
"In the event any change in GAAP materially affects any
provisions of this Agreement, the Banks, FCX and FI
agree that they shall negotiate in good faith in order
to amend the affected provisions in such a way as will
restore the parties to their respective positions prior
to such change, and until such amendment becomes
effective FCX's and FI's compliance with such
provisions shall be determined on the basis of GAAP as
in effect immediately before such change in GAAP became
effective."
(10) Section 1.3 shall be amended by adding the
last three sentences of Section 1.3 of the FCX Credit
Agreement to the end thereof.
(11) Article II shall be amended by incorporation
of Article II of the FCX Credit Agreement by reference.
(12) Section 3.2 shall be amended by
(i) replacing "during the Commitment Period" with
"until the earlier of the Maturity Date and the
termination of the Commitment of such Bank in
accordance with the terms hereof"; (ii) deleting the
words "Unused Net Commitment Amount" and inserting in
its place the words "then effective unused Total
Commitment"; and (iii) deleting the proviso in its
entirety and by inserting in its place the proviso from
Section 3.1 of the FCX Credit Agreement.
(13) Section 3.3(a) shall be amended by inserting
"(i)" after the words "shall be" in the second line
thereof and inserting the words "or (ii) equal to the
remaining available balance of the applicable
Commitments" after the word "$1,000,000" in the first
sentence thereof.
(14) Section 3.3(c) shall be amended by deleting
the penultimate sentence thereof and inserting in its
place the penultimate sentence of Section 3.2(c) of the
FCX Credit Agreement.
(15) Section 3.4(a) shall be amended by adding
the words "(which shall not end after the Maturity
Date)" after the words "Interest Periods" in clause (3)
thereof.
(16) Section 3.4(b) shall be amended by
incorporating by reference at the end thereof the
second sentence of Section 3.3(b) of the FCX Credit
Agreement except that the references therein to
Section 3.3 shall be to Section 3.4.
(17) Section 3.4(c) shall be amended by deleting
the words "(each as defined in the FTX Credit
Agreement) of any FTX Lender being outstanding under
the Corporate Group Facility at any one time" and
inserting in its place the words "of any Bank".
(18) Section 3.5(b) shall be amended by adding
before the first sentence thereof the first sentence of
Section 3.4(b) of the FCX Credit Agreement.
(19) Section 3.5 shall be amended by inserting as
new clauses (c) and (d) thereof clauses (c) and (d) of
Section 3.4 of the FCX Credit Agreement, except that
the references therein to Section 3.4 shall be to
Section 3.5.
(20) Section 3.6 shall be amended by (i) adding
in the parenthetical after the words "as the case may
be" in clause (a) thereof the words ", when determined
by reference to the Prime Rate, and over a year of 360
days at all other times", (ii) inserting the words "The
Applicable Reference Rate and" at the beginning of the
second sentence of clause (c) thereof and
(iii) deleting clauses (b) and (d) thereof and re-
lettering the remaining clauses accordingly.
(21) Section 3.7(a) shall be amended by replacing
the words after "1% per annum" with the following: ",
(ii) with respect to any quarter after the Amendment
Closing Date until the Fifth Amendment Closing Date,
the amount set forth in and pursuant to (and not in
duplication of) Section 3.7(a) of the FTX Credit
Agreement and (iii) commencing on the Fifth Amendment
Closing Date, the rate set forth in Schedule I to the
FCX Credit Agreement". Section 3.7(d) shall be
deleted.
(22) Clause (ii) of the second proviso to
Section 3.8(a) and the words "the lesser of (i)" in
such proviso shall be deleted. Section 3.8 (b) shall
be deleted.
(23) Section 3.9(a) shall be amended by deleting
the words "scheduled maturity date" in clause (i)
thereof and inserting in its place the words "last date
of the Interest Period then in effect". Section 3.9(c)
shall be deleted.
(24) Section 3.10(b) shall be amended by
(i) deleting the words "FI shall from time to time" and
inserting in its place the following words:
"In the event of any termination of the Commitments, FI
shall repay or prepay all its outstanding Loans on the
date of such termination. On the date of any partial
reduction of the Commitments pursuant to Section 3.8,
FI shall",
and (ii) deleting clause (i) thereof and (iii)
replacing the words in former clause (ii) after "then
in effect" with "immediately following such reduction".
(25) Section 3.10(c) shall be amended by deleting
the following words:
"Not later than 90 days after each reduction in the
amount of the Borrowing Base as a result of any
redetermination of the Borrowing Base Factors pursuant
to Article II of the FCX Credit Agreement, FI shall
prepay the outstanding Loans in such amount as may be
necessary so that"
and inserting in its place the following words:
"If required by Section 2.4, FI shall repay the
outstanding Loans in such amount as may be necessary so
that, no later than the relevant date required by
Section 2.4 for compliance with Sections 3.2 and
5.2(b),".
(26) Sections 3.12(b) through 3.12(e) shall be
replaced with Sections 3.11(b) through 3.11(e) of the
FCX Credit Agreement except that (i) the references
therein to Section 3.17 shall be to Section 3.18 and
(ii) references to the Amendment Closing Date shall be
deemed references to the Fifth Amendment Closing Date.
(27) Sections 3.13 and 3.14 shall be replaced
with Sections 3.12 and 3.13 of the FCX Credit Agreement
except that the references therein to the Closing Date
shall be deemed references to the Fifth Amendment
Closing Date, and the references to Sections 3.9 and
3.12 shall be deemed references to Sections 3.10 and
3.13.
(28) Section 3.15 shall be amended by adding the
words "(or, if such Commitments shall have expired or
been terminated, in accordance with the respective
principal amounts of their outstanding Loans)" at the
end of the first sentence thereof.
(29) Section 3.16 shall be replaced with
Section 3.15 of the FCX Agreement with appropriate
changes in cross-references.
(30) Section 3.17 shall be amended by replacing
clauses (c) and (d) thereof with clauses (c) and (d) of
Section 3.16 of the FCX Credit Agreement.
(31) Sections 3.18 and Sections 3.19 shall be
replaced with Sections 3.17 and 3.18, respectively, of
the FCX Credit Agreement, with appropriate changes in
the cross references.
(32) Clause (i) to the lead-in to Article IV
shall be deleted and the clauses re-numbered
accordingly.
(33) References to the Pledge Agreement and the
Security Agreement in Article IV, (for example, at the
end of Section 4.1(b)) shall be replaced with
references to the FCX Pledge Agreements.
(34) Section 4.1(e) is deleted in its entirety
and shall be replaced by Section 4.1(e) of the FCX
Credit Agreement in its entirety.
(35) Section 4.1(f) shall be amended (i) by
deleting the word "1992" in the first line of
clause (i) thereof and inserting in its place the word
"1994" and by inserting the words "Fifth" before the
words "Amendment Closing Date" and (ii) by replacing
the words after "could" in the first sentence of
clause (ii) of Section 4.1(f) with the words "result in
a Material Adverse Effect".
(36) Section 4.1(h) shall be amended by deleting
clauses (iii) and (iv) thereof in their entirety and in
their place inserting clauses (iii) and (iv) of
Section 4.1(h) of the FCX Credit Agreement.
(37) Sections 4.1(i) through (q) are deleted in
their entirety and shall be replaced by Sections 4.1(i)
through (q) of the FCX Credit Agreement in their
entirety.
(38) Article V is deleted and Article V of the
FCX Credit Agreement is incorporated by reference in
its entirety, with references to the "FI Funding Date"
in the incorporated Article being replaced with the
"Fifth Amendment Closing Date".
(39) Article VII is deleted and Article VII of
the FCX Credit Agreement is incorporated by reference
in its entirety.
(40) Article VIII is deleted and Article VIII of
the FCX Credit Agreement is incorporated by reference
in its entirety.
(41) Article IX is deleted and Article IX of the
FCX Agreement is incorporated by reference in its
entirety.
(42) Sections 10.3, 10.4 and 10.7(b) shall be
replaced with Sections 10.3, 10.4 and 10.7(b) of the
FCX Agreement, with appropriate changes in the cross-
references, with references to the "Closing Date" being
replaced with the "Fifth Amendment Closing Date".
(43) Section 10.12 shall be renumbered as Section
10.18 and Sections 10.13 through 10.17 shall be
renumbered accordingly.
(44) Section 10.17 of the FCX Credit Agreement
shall be incorporated by reference.
(45) Schedules I and II shall be replaced by
Schedules I and II hereto.
(b) By their execution and delivery of this
Amendment, the parties hereto agree that the single role of
Agent shall be divided as of the Fifth Amendment Closing
Date into separate roles of Administrative Agent and
Documentary Agent and that Chemical Bank is hereby appointed
by the Banks as of the Fifth Amendment Closing Date as the
Administrative Agent and Chase is hereby appointed by the
Banks as of the Fifth Amendment Closing Date as the
Documentary Agent, each as contemplated by Article VIII of
the Amended Credit Agreement. References to the Agent
throughout the Credit Agreement shall be amended to conform
to the references to the Agents under the FCX Credit
Agreement. Chemical Bank shall continue to be entitled to
all the fees, immunities, indemnities and protection
provided to it as Agent under the Existing Credit Agreement,
including without limitation Article VIII and Section 10.4
thereof, for the period up to the Fifth Amendment Closing
Date, including in respect of any actions taken or omitted
to be taken while acting as Agent. Chemical Bank is also
hereby appointed by the Banks as of the Fifth Amendment
Closing Date as FCX Collateral Agent under the FCX Pledge
Agreement.
SECTION 4. Delivery of Notes; Assignments.
(a) At the Amendment Closing, the Continuing
Banks and the Departing Banks shall deliver to the
Administrative Agent, for delivery to and cancellation by
FI, all promissory notes issued by FI under the Existing
Credit Agreement and then held by them (collectively, the
"Old Notes"). FI shall execute and deliver to the
Administrative Agent for the account of each Bank the
Promissory Note that such Bank is entitled to receive
pursuant to Section 3.4 of the Amended Credit Agreement, in
the form set forth as Exhibit A hereto (the "New Notes"),
and the schedules attached to such New Notes shall reflect
the Loans outstanding as of the Fifth Amendment Closing
Date, subject to the arrangements provided in this
Section 4. Upon the Amendment Closing, the Administrative
Agent shall release and deliver the Old Notes to FI for
cancellation and shall deliver the New Notes to the
Continuing Banks and the Additional Banks. In the event all
or a portion of an Old Note held by a Continuing Bank or a
Departing Bank has been lost or destroyed, such Lender may
deliver, in lieu of such Old Note, an indemnity agreement
relating to such Old Note in a form reasonably satisfactory
to FI. Notwithstanding the foregoing, the failure of any
Lender to deliver any Old Notes shall not prohibit or delay
the closing on the Fifth Amendment Closing Date, unless FI
shall so notify such Lender.
(b) Effective as of the Amendment Closing,
(i) the Additional Banks shall become "Banks" for all
purposes under the Amended Credit Agreement with the
Commitments set forth on Schedule II hereto next to their
names and (ii) the Departing Banks shall cease to be Banks
for all purposes under the Amended Credit Agreement and the
Commitments (as defined in the Existing Credit Agreement) of
such Departing Banks shall be terminated. Notwithstanding
such termination and the other amendments effected by this
Amendment, the Departing Banks shall continue to be entitled
to the protection of Sections 3.12, 3.13, 3.14, 3.16, 3.18,
3.19 and 10.5 of the Existing Credit Agreement and to any
fees to which they are entitled pursuant to Section 3.7 of
the Existing Credit Agreement up to, but not including, the
Fifth Amendment Closing Date.
(c) Effective as of the Amendment Closing and by
its execution hereof, each Departing Bank and each
Continuing Bank with a Commitment under the Amended Credit
Agreement that is less than its Commitment under the
Existing Credit Agreement (each a "Decreasing Bank") hereby
assigns to the Additional Banks and the Continuing Banks
with respective Commitments under the Amended Credit
Agreement that are greater than such Continuing Banks'
respective Commitments under the Existing Credit Agreement
(each an "Increasing Bank"), and, effective as of the
Amendment Closing and by its execution hereof, each
Additional Bank and Increasing Bank hereby purchases from
the Departing Banks and the Decreasing Banks at the
principal amount thereof, such interests in the Loans that
are outstanding on the Fifth Amendment Closing Date under
the Existing Credit Agreement and will continue to be
outstanding as Loans under the Amended Credit Agreement
("Continuing Loans") as shall be necessary in order that,
after giving effect to all such assignments and purchases,
such Continuing Loans will be held by the Additional Banks
and the Continuing Banks ratably in accordance with their
respective Commitments under the Amended Credit Agreement.
Such assignments, purchases and acceptances shall be without
recourse or representation, except that each Departing Bank
and Decreasing Bank shall be deemed to have represented to
each Additional Bank and Increasing Bank that it is the
legal and beneficial owner of the interests assigned by it
free and clear of any adverse claims arising by, through or
under it.
(d) On the Fifth Amendment Closing Date, (i) each
Additional Bank and Increasing Bank shall pay the purchase
price for the interests purchased by it pursuant to
paragraph (c) of this Section 4 by wire transfer of
immediately available funds to the Administrative Agent not
later than 12:00 noon (New York time) and (ii) the
Administrative Agent shall pay to each Departing Bank and
Decreasing Bank out of the amounts received by the
Administrative Agent pursuant to clause (i) of this
paragraph (d), the purchase price for the interests assigned
by it pursuant to such paragraph (c) by wire transfer of
immediately available funds no later than 3:00 p.m. (New
York time). In addition, on the Fifth Amendment Closing
Date, FI shall pay interest on each Loan outstanding (at the
rate applicable to such Loan) for the period from the date
of the last interest payment on such Loan to but not
including the Fifth Amendment Closing Date. FI shall pay
such interest by wire transfer of immediately available
funds to the Administrative Agent not later than 11:00 a.m.
(New York time) and the Administrative Agent shall pay the
applicable Continuing Bank or Departing Bank, out of the
amount so received from FI, such interest by wire transfer
of immediately available funds no later than 3:00 p.m. (New
York time). The interest payable on each Continuing Loan on
the next Interest Payment Date therefor occurring after the
Fifth Amendment Closing Date shall be decreased by the
amount of interest paid on such Continuing Loan pursuant to
this Section 4(d).
(e) FI hereby consents to the assignments and
purchases provided for in paragraphs (c) and (d) of this
Section 4, and agrees that each Increasing Bank shall have
all the rights of a Bank under the Amended Credit Agreement
with respect to the interests in the Loans purchased by it
pursuant to such paragraphs. In the event that interests in
any LIBO Rate Loan shall be assigned pursuant to
paragraphs (c) and (d) of this Section 4 prior to the last
day of the Interest Period for such Loan, each Departing
Bank and Decreasing Bank that shall have assigned a portion
of such Loan shall be deemed to have the same rights under
Section 3.14 of the Amended Credit Agreement as it would
have if the portion it assigned had been prepaid and each
Additional Bank and Increasing Bank so purchasing a LIBO
Rate Loan shall be entitled to receive reimbursement from FI
for any loss or expense which such Additional Bank or
Increasing Bank sustains or incurs as a result of making
such Continuing Loan as of the Fifth Amendment Closing Date
rather than on the first day of the current Interest Period
for such Continuing Loan (it being understood that such loss
or expense shall be payable for the period commencing with
the Fifth Amendment Closing Date and ending with the next
Interest Payment Date for such Continuing Loan). Each
Additional Bank, Decreasing Bank or Increasing Bank claiming
compensation for any such loss or expense shall make such
request for reimbursement pursuant to the same procedures
provided in Section 3.13 of the Amended Credit Agreement for
claiming of breakage amounts.
SECTION 5. Representations and Warranties. As of
the Fifth Amendment Closing Date(i) FTX represents and
warrants with respect to itself only, (ii) FCX and FI
jointly and severally represent and warrant with respect to
FI and (iii) FCX represents and warrants with respect to
itself, in each case to each Lender, the FI Trustee, the
Agent and the Agents, as follows:
(a) The representations and warranties by such
Transaction Party (other than FTX) set forth in Article IV
of the Amended Credit Agreement and in each other Loan
Document entered into on the Fifth Amendment Closing Date
are true and correct in all material respects as if made on
and as of the Fifth Amendment Closing Date.
(b) FCX and FI are in compliance with all the
terms and conditions of the Amended Credit Agreement and the
other Loan Documents, and no Default or Event of Default
(each as defined in the Amended Credit Agreement) has
occurred or is continuing, and each Transaction Party is in
compliance with all the terms and conditions of the Existing
Credit Agreement and no Default or Event of Default (each as
defined in the Existing Credit Agreement) has occurred and
is continuing.
(c) Each of the Transaction Parties has the
corporate power and authority to enter into and perform this
Amendment. The execution, delivery and performance of this
Amendment has been duly authorized by each Transaction Party
and constitutes the legal, valid and binding obligation of
such Transaction Party, enforceable against such Transaction
Party in accordance with its terms, (ii) will not violate
(A) the Certificate of Incorporation, the Certificate of
Domestication or the Indonesian Articles of Association, as
applicable, or the By-laws of such Transaction Party,
(B) any Governmental Rule binding upon such Transaction
Party or (C) any provision of any indenture, agreement or
other instrument to which such Transaction Party is a party
or by which it or any of its properties or assets are or may
be bound, (iii) will not be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of
time or both) a default under any such indenture, agreement
or other instrument referred to in clause (ii)(C) above and
(iv) will not result in the creation or imposition of any
Lien upon any Transaction Party, except for the liens of the
FCX Pledge Agreement and the FI Security Documents.
SECTION 6. Conditions to Closing. The
consummation of the transactions set forth in Sections 3 and
4 shall be subject to the satisfaction, or the waiver by
each Bank, of the following conditions precedent:
(a) Each Bank shall have received the following:
(i) a copy of the Certificate of
Domestication of FI as in effect on the Fifth
Amendment Closing Date certified by the Secretary
of State of the State of Delaware (as of a date
reasonably near the Fifth Amendment Closing Date)
as being a true and correct copy of such documents
on file in his office;
(ii) the signed Certificate of the Secretary
of State of the State of Delaware, in regular form
(dated reasonably near the Fifth Amendment Closing
Date), listing the Certificate of Domestication of
FI as in effect on the Fifth Amendment Closing
Date on file in his office and stating that such
documents are the only charter documents of FI on
file in his office, that FI is duly domesticated
and in good standing in the State of Delaware, and
has filed all franchise tax returns and has paid
all franchise taxes required by law to be filed
and paid by FI to the date of his Certificate;
(iii) a copy of the Indonesian Articles of
Association of FI and any amendments thereto as in
effect on the Fifth Amendment Closing Date;
(iv) the signed Certificate of the Secretary
or an Assistant Secretary of FI, dated the Fifth
Amendment Closing Date and certifying, among other
things, (A) a true and correct copy of resolutions
adopted by the Board of Directors of FI and
concurred in by the Board of Commissioners of FI
authorizing the making and performance of this
Amendment and the Amended Credit Agreement and the
other Loan Documents to which FI is or is to be a
party and the issuance by FI of the New Notes and
the borrowings by FI under the Amended Credit
Agreement, and that such resolutions have not been
modified, rescinded or amended and are in full
force and effect, (B) true and correct copies of
the Indonesian Articles of Association and the By-
laws of FI as in effect on the Fifth Amendment
Closing Date and at all times since a date prior
to the date of the resolutions described in
(A) above, (C) that the Certificate of
Domestication of FI has not been amended since the
date of the last amendment, shown on the
certificate referred to in (ii) above, and (D) the
incumbency and specimen signatures of officers of
FI executing the foregoing documents and any other
documents delivered to the Lenders in connection
with the Fifth Amendment Closing Date;
(v) the signed opinion of (A) the General
Counsel of FCX substantially in the form of
Exhibit J to the FCX Credit Agreement, but with
respect to this Agreement and the Amended Credit
Agreement, (B) Davis Polk & Wardwell, special New
York counsel for FI, substantially in the form of
Exhibit K to the FCX Credit Agreement, but with
respect to this Agreement and the Amended Credit
Agreement, (C) Liskow & Lewis, special Louisiana
counsel for FI, substantially in the form of
Exhibit L to the FCX Credit Agreement, but with
respect to this Agreement and the Amended Credit
Agreement, (D) Ali Budiardjo, Nugroho
Reksodiputro, special Indonesian counsel for FI,
substantially in the form of Exhibit M to the FCX
Credit Agreement, but with respect to this
Agreement and the Amended Credit Agreement, and
(E) Mochtar, Karuwin & Komar, special Indonesian
counsel for the Agent, substantially in the form
of Exhibit N to the FCX Credit Agreement, but with
respect to this Agreement and the Amended Credit
Agreement, in each case dated the Fifth Amendment
Closing Date and satisfactory to Cravath, Swaine &
Moore, special counsel for the Agents, or such
other opinions of counsel as may be satisfactory
to Cravath, Swaine & Moore;
(vi) signed Certificates of the Secretary of
State of the State of Delaware with respect to
FCX, dated reasonably near the Fifth Amendment
Closing Date, listing FCX's Certificate of
Incorporation as in effect on the Fifth Amendment
Closing Date on file in his office and stating
that such documents are the only charter documents
of FCX on file in his office, that FCX is duly
incorporated and in good standing in the State of
Delaware, and has filed all franchise tax returns
and has paid all franchise taxes required by law
to be filed and paid by FCX to the date of his
Certificate;
(vii) a signed Certificate of the Secretary or
an Assistant Secretary of FCX, dated the Fifth
Amendment Closing Date and certifying, among other
things, (A) a true and correct copy of resolutions
adopted by the Board of Directors of FCX
authorizing the making and performance of this
Amendment and the continued performance by it of
the Amended Credit Agreement, the continued
guarantee by it of the borrowings by FI under the
Amended Credit Agreement and the execution and
delivery of the FCX Pledge Agreement and the
pledge by it of the shares of FI held by it
pursuant thereto, and that such resolutions have
not been modified, rescinded or amended and are in
full force and effect, (B) a true and correct copy
of the Certificate of Incorporation and the By-
laws of FCX as in effect on the Fifth Amendment
Closing Date and at all times since a date prior
to the date of the resolutions described in (A)
above, (C) that the Certificate of Incorporation
of FCX has not been amended since the date of the
last amendment shown on the Certificate with
respect to FCX referred to in (vi) above, and (D)
the incumbency and specimen signatures of officers
of FCX executing the foregoing documents and any
other documents delivered to the Banks in
connection with the Amendment Closing;
(viii) the signed Certificate of a Responsible
Officer of each of FCX and FI dated the Fifth
Amendment Closing Date and certifying that each
representation and warranty made by FCX or FI, as
applicable, in this Amendment is true and correct
and no Default or Event of Default (under either
the Existing Credit Agreement or the Amended
Credit Agreement) shall have occurred and be
continuing; and
(ix) such other instruments and documents as
the Agents or any Bank may reasonably request in
connection with the Amendment Closing.
(b) FI shall have paid on the Fifth Amendment
Closing Date (i) to the Agent, for the account of the
Agent, the Agency Fee due under the Existing Credit
Agreement on such date in an aggregate amount to be
agreed upon by FTX and the Agent, (ii) to the Departing
Banks, the fees to which they are entitled under the
last sentence of Section 4(b) and (iii) to the Lenders
entitled thereto, the amounts referred to in
Section 2(d) and in the penultimate sentence of
Section 4(d) and in 4(e).
(c) All amounts payable under Section 4(d)(i)
shall have been received by the Administrative Agent.
(d) Each Bank shall have received a New Note of FI
duly executed by FI payable to its order and otherwise
complying with the provisions of Section 3.4 of the
Amended Credit Agreement.
(e) The consent of Bank Indonesia shall have been
obtained and shall be in full force and effect.
(f) All other consents, approvals and agreements
necessary or advisable in the judgment of the Agents or
their counsel for consummation of the Restructuring and
the Amendment Closing shall have been obtained and
shall be in full force and effect and there shall not
be any action, suit, litigation or other proceeding at
law or in equity or by or before any court of any
Governmental Authority pending which, in the judgment
of the Agents or their counsel, is likely to restrain,
prevent or impose materially adverse conditions upon
the Restructuring or the Amendment Closing or the full
and timely performance by the Transaction Parties of
their obligations under the Loan Documents and in
connection with the Restructuring.
(g) No judgment, order or decree shall be
outstanding, and no action shall have been taken by any
Governmental Authority, that, in the judgement of the
Agents or their counsel, has or is likely to have the
effect of restraining, preventing or imposing
materially adverse conditions upon the Amendment
Closing or the Restructuring, or the full and timely
performance by the Transaction Parties of their
obligations under the Loan Documents and in connection
with the Restructuring.
(h) The Eighth Amendment to the FI Trust Agreement
substantially in the form of Exhibit F-1 to the FCX
Credit Agreement shall have been executed by the
parties thereto and shall be in full force and effect,
and a copy of such Amendment shall have been delivered
to the Agent.
(i) An amended and restated instrument of power of
attorney (Surat Kuasa), substantially in the form of
Exhibit F-2 to the FCX Credit Agreement, shall have
been executed and delivered by FI, and the
Administrative Agent and the Documentary Agent shall
have received evidence that all taxes and notary fees
in connection therewith have been paid.
(j) An amended and restated Fiduciary Assignment
substantially in the form of Exhibit F-3 to the FCX Credit
Agreement and an amended and restated Fiduciary Transfer
substantially in the form of Exhibit F-4, together with an
amended and restated Fiduciary Power substantially in the
form of Exhibit F-5, each shall have been executed and
delivered by the respective parties thereto and the
Administrative Agent and the Documentary Agent shall have
received evidence that all taxes and notary fees in
connection therewith have been paid.
(k) The FCX Pledge Agreements substantially in the
forms of Exhibit E-1 and E-2 to the FCX Credit Agreement
shall have been duly executed by the parties thereto and
delivered to the FCX Collateral Agent and shall be in full
force and effect, and all the outstanding capital stock of
FI owned by FCX shall have been duly and validly pledged
thereunder to the FCX Collateral Agent for the ratable
benefit of the Banks, the holders of the B.V. Notes, the
lenders under the FCX Credit Agreement and the beneficiaries
of FCX Guaranty and certificates representing such stock,
accompanied by instruments of transfer endorsed in blank,
shall be in the actual possession of the FCX Collateral
Agent.
(l) The Restructuring shall have been completed on a
generally tax-free basis (subject to exceptions approved by
Administrative Agent and the Documentary Agent), including
arrangements in connection with the Restructuring with
respect to existing indebtedness of FTX, FRP, FCX and FI,
all on substantially on the terms of Schedule VII to the FCX
Credit Agreement or on terms otherwise satisfactory to the
Banks (including all tax, accounting, corporate and
partnership matters), and the Administrative Agent and the
Documentary Agent shall have received satisfactory opinions
of counsel with respect to the Restructuring, its tax status
and related matters as they shall reasonably request.
(m) Closing of a new $400,000,000 Chemical/Chase Bank
credit facility for FRP and FTX and the satisfaction of the
conditions to the initial credit event thereunder shall have
occurred substantially simultaneously with the Amendment
Closing.
(n) Closing of the FCX Credit Agreement and the FCX
Funding Date shall have occurred substantially
simultaneously with the Amendment Closing.
(o) The Administrative Agent shall have received an
environmental due diligence summary memorandum in form, scope
and substance reasonably satisfactory to the Banks, from
Cravath, Swaine & Moore as to certain environmental hazards,
liabilities or Remedial Action to which FI or its
Subsidiaries may be subject and the Banks shall be reasonably
satisfied with the nature and cost of any such hazards,
liabilities or Remedial Action and with FI's plans with
respect thereto.
(p) Copies of this Amendment which, when taken together,
bear the signatures of the parties hereto shall have been
received by the Administrative Agent and the Documentary
Agent.
(q) All legal matters incident to the Restructuring,
this Amendment, the New Notes, the other Loan Documents and
the borrowings under the Amended Credit Agreement shall be
satisfactory to Cravath, Swaine & Moore, special counsel for
the Agents.
SECTION 7. Amendment; Waiver. This Amendment may not
be amended nor any provision hereof waived except pursuant to a
writing signed by each Lender or as otherwise provided herein.
Any amendment or waiver of the provisions hereof pursuant to such
a writing shall be binding upon each party hereto.
SECTION 8. Counterparts. This Amendment may be
executed in multiple counterparts, each of which shall constitute
an original, but all of which when taken together shall constitute
but one instrument.
SECTION 9. APPLICABLE LAW. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
SECTION 10. Expenses. FI shall pay all out-of-pocket
expenses incurred by the Agents in connection with the preparation
of this Amendment and with the Amendment Closing, including, but
not limited to, the reasonable fees and disbursements of Cravath,
Swaine & Moore, special counsel for the Agents, and Mochtar,
Karuwin & Komar, special Indonesian counsel to the Agents.
SECTION 11. Composite Agreement. Effective upon the
Fifth Amendment Closing Date, FI, FCX and the Agents shall cause
to be prepared a composite agreement embodying all amendments
(including this Amendment) to the Existing Credit Agreement (the
"Composite Agreement"), and which may include minor technical
corrections to give effect to such amendments. Upon its approval
by FI, FCX and the Agents (as evidenced by their countersigning an
execution version thereof), the Composite Agreement shall be
distributed to each of the Banks and become the Amended Credit
Agreement and shall be binding upon the parties thereto.
SECTION 12. Headings. The headings of this Amendment
are for reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 13. Amendment. Except as and to the extent
expressly provided herein, the Existing Credit Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be executed by their duly authorized
officers or agents as of the date first above written.
Borrower: P.T. FREEPORT INDONESIA COMPANY,
by /s/ R. Foster Duncan
Name: R. Foster Duncan
Title: Treasurer
Departing Guarantor: FREEPORT-McMoRan INC.,
by /s/ R. Foster Duncan
Name: R. Foster Duncan
Title: Treasurer
Continuing Guarantor: FREEPORT-McMoRAN COPPER & GOLD INC.,
by /s/ R. Foster Duncan
Name: R. Foster Duncan
Title: Treasurer
Agents: CHEMICAL BANK, as Agent, as
Administrative Agent and as FCX
Collateral Agent,
by /s/ Ronald Potter
Name: Ronald Potter
Title: Managing Director
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as Documentary Agent,
by /s/ Alexander S. Rapetski
Name: Alexander S. Rapetski
Title: Vice President
FI Trustee: FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION (as successor to Morgan
Guaranty Trust Company of New York),
as FI Trustee,
by /s/ P.J. Crowley
Name: P.J. Crowley
Title:Vice President
Continuing Banks: CHEMICAL BANK,
by
Name:
Title:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION),
by
Name:
Title: