Exhibit 4.22
CONFORMED COPY
AMENDMENT dated as of July 24, 1997
(this "Amendment") to the Credit Agreement
dated as of June 30, 1995 (as heretofore
amended, the "Credit Agreement"), among PT
FREEPORT INDONESIA COMPANY, a limited
liability company organized under the laws of
the Republic of Indonesia and also
domesticated in Delaware ("FI"), FREEPORT-
MCMORAN COPPER & GOLD INC., a Delaware
corporation ("FCX"), the undersigned
financial institutions (collectively, the
"Banks"), FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, a national banking association,
as trustee under the FI Trust Agreement (in
such capacity, the "FI Trustee"), THE CHASE
MANHATTAN BANK (formerly Chemical Bank), a
New York banking corporation ("Chase"), as
administrative agent for the Banks (in such
capacity, the "Administrative Agent"), as
security agent for the Banks (in such
capacity, the "Security Agent") under the
Bank Security Documents (as defined in the
Credit Agreement) and as security agent for
the Banks and RTZ-IIL (in such capacity, the
"JAA Security Agent") under the JAA Fiduciary
Transfer (as defined in the Credit Agreement)
and the JAA Fiduciary Power (as defined in
the Credit Agreement), and THE CHASE
MANHATTAN BANK (as successor to The Chase
Manhattan Bank (National Association)), as
documentary agent for the Banks (in such
capacity the "Documentary Agent"; the
Administrative Agent, the Security Agent, the
JAA Security Agent and the Documentary Agent
being collectively referred to herein as the
"Agents"). Capitalized terms used herein and
not defined herein shall have the meanings
given such terms in the Credit Agreement.
WHEREAS FCX, FI, the FI Trustee and the Agents
have agreed, subject to the terms and conditions hereof, to
amend the Credit Agreement in the manner set forth in this
Amendment.
WHEREAS, this Amendment shall constitute the
written consent of each of the Banks in accordance with
Section 10.7(b) of the Credit Agreement.
Accordingly, FCX, FI, the FI Trustee, the Banks
and the Agents agree as follows:
SECTION 1. Amendments. Effective as of the
Effective Date (as hereinafter defined), the Credit
Agreement is hereby amended as follows:
(a) The definition of "Maturity Date" in
Section 1.1 of the Credit Agreement is hereby amended
to replace the words "December 31, 1999" with
"December 31, 2002".
SECTION 2. Representations and Warranties. Each
of FCX and FI represents and warrants to the Administrative
Agent and to each of the Banks that:
(a) The representations and warranties set forth
in Article IV of the Credit Agreement and in the other
Loan Documents are true and correct in all material
respects with the same effect as if made on the date
hereof, except to the extent such representations and
warranties expressly relate to an earlier date, in
which case they were true and correct in all material
respects on and as of such earlier date.
(b) As of the date hereof, no Default or Event of
Default has occurred and is continuing under the Credit
Agreement.
SECTION 3. Conditions to Effectiveness. This
Amendment shall become effective on the date that each of
the following conditions shall have been satisfied (such
date of effectiveness being the "Effective Date"):
(a) Receipt by Cravath, Swaine & Moore, special
counsel for the Agents, of executed counterparts of
this Amendment which, when taken together, bear the
signatures of FI, FCX, the FI Trustee, the Agents and
each Bank.
(b) The representations and warranties on the part
of FI and FCX contained in Article IV of the Credit
Agreement shall be true and correct in all material
respects at and as of the Effective Date as though made
on and as of such date.
(c) The Administrative Agent shall have received
on behalf of itself and the Banks a favorable written
opinion of (i) Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, counsel for FCX and FI, (ii) Ali
Budiardjo, Nugroho, Reksodiputro, special Indonesian
counsel for FI, (iii) Henry A. Miller, general counsel of
FCX and (iv) Mochtar, Karuwin & Komar, special Indonesian
counsel for the Agents, each dated the Effective Date and
addressed to the Administrative Agent and the Banks, each in
the form approved by the Agents and Cravath, Swaine & Moore,
special counsel for the Agents. FCX and FI and, in the case
of (iv) above, the Agents, hereby instruct such counsel to
deliver such opinions.
SECTION 4. Reallocation of the Banks' Commitments
under the Credit Agreement. (a) It is hereby acknowledged
that, pursuant to the terms of this Amendment, the Total
Commitment under the Credit Agreement is not being changed
but the allocations of the Banks' commitments are being
changed (the "Commitment Reallocation"), effective as of the
Effective Date. The Commitment Reallocation will be
implemented through the increase of the Commitments of one
or more of the Banks (each such Bank that is willing to
increase its Commitment hereunder being an "Increasing
Bank"), the decrease of the Commitments of one or more of
the Banks (each such Bank that is willing to reduce its
Commitment hereunder being a "Reducing Bank") and the
continuation of the amount of the Commitments of one or more
Banks (each such bank whose Commitment is not changing, aa
"Non-Changing Bank"). If agreement is reached on or prior
to the Effective Date with any Increasing Banks or Reducing
Banks as to a commitment increase or a commitment reduction,
as the case may be, the Commitments of such Increasing
Banks, such Reducing Banks and the Non-Changing Banks shall
be, as of the Effective Date, the amounts set forth in
Schedule II to this Amendment; provided that each Bank shall
have delivered to the Administrative Agent within 30
Business Days of the Effective Date, its existing Promissory
Notes of FCX and FI issued under the Credit Agreement as in
effect prior to the Effective Date. The Administrative
Agent, upon receipt of such Promissory Notes from each Bank,
shall promptly deliver such Promissory Notes to FCX and FI.
(b) On the Effective Date, the Administrative
Agent shall record in the Register the relevant information
with respect to each Increasing Bank and each Reducing Bank.
Each Increasing Bank shall, before 2:00 P.M. (New York City
time) on the Effective Date, make available to the
Administrative Agent in New York, New York, in immediately
available funds, an amount equal to the excess of (i) such
Increasing Bank's ratable portion of the borrowings then
outstanding (calculated based on its Commitment as a
percentage of the Total Commitments outstanding after giving
effect to the Commitment Reallocation) over (ii) such
Increasing Bank's pro rata share of the borrowings then
outstanding (calculated based on its Commitment (without
giving effect to the Commitment Reallocation) as a
percentage of the Total Commitments (without giving effect
to the Commitment Reallocation). After the Administrative
Agent's receipt of such funds from each such Increasing
Bank, the Administrative Agent will promptly thereafter
cause to be distributed like funds to the Reducing Banks for
their account in an amount to each Reducing Bank such that
the aggregate amount of the outstanding borrowings owing to
each Reducing Bank after giving effect to such distribution
equals such Reducing Bank's pro rata share of the borrowings
then outstanding (calculated based on its Commitment as a
percentage of the aggregate Commitments outstanding after
giving effect to the Commitment Reallocation). Pursuant to
Section 3.13 of the Credit Agreement, FCX and FI shall pay
any losses any Bank may sustain or incur as a consequence of
any Breakage Event that may occur in connection with or as a
result of the transactions contemplated by this Amendment.
Within one Business Day prior to the Effective Date, each of
FCX and FI, at its own expense, shall execute and deliver to
the Administrative Agent Promissory Notes payable to the
order of each Bank, dated as of June 30, 1995, in a
principal amount equal to such Bank's Commitment after
giving effect to the Commitment Reallocation, substantially
in the form of Exhibits A-1 and A-2 to this Amendment. The
Administrative Agent, upon receipt of such Promissory Notes
from each of FCX and FI, shall promptly deliver such
Promissory Notes to the Banks.
SECTION 5. Agreement. Except as specifically
stated herein, the provisions of the Credit Agreement are
and shall remain in full force and effect. As used in the
Credit Agreement the terms "Agreement", "herein",
"hereunder", "hereinafter", "hereto", "hereof" and words of
similar import shall, unless the context otherwise requires,
refer to the Credit Agreement as amended hereby.
SECTION 6. Applicable Law. THIS AMENDMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Amendment may be
executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together
shall constitute but one contract.
SECTION 8. Expenses. Each of FCX and FI agrees
to reimburse the Agents for all out-of-pocket expenses
incurred by them in connection with this Amendment,
including the reasonable fees, charges and disbursements of
Cravath, Swaine & Moore, counsel for the Agents.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed by their respective
authorized officers as of the day and year first written
above.
PT FREEPORT INDONESIA
COMPANY,
by /s/R. Foster Duncan
---------------------
Name: R. Foster Duncan
Title: Vice President &
Treasurer
FREEPORT-MCMORAN COPPER & GOLD
INC.,
by
/s/R. Foster Duncan
-------------------
Name: R. Foster Duncan
Title: Vice President &
Treasurer
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, as FI
Trustee,
by
/s/ Ward A. Spooner
---------------------
Name: Ward A. Spooner
Title: Vice President
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent, Security
Agent, JAA Security Agent and
Documentary Agent,
by
/s/James H. Ramage
----------------------
Name: James H. Ramage
Title: Vice President
ABN AMRO BANK N.V., HOUSTON
AGENCY,
by
ABN AMRO NORTH AMERICA, INC.,
as Agent for ABN AMRO BANK
N.V.,
by
/s/ H. Gene Shiels
---------------------
Name: H. Gene Shiels
Title: Vice President
by
/s/ W. Bryan Chapman
------------------------
Name: W. Bryan Chapman
Title: Group Vice
President
ARAB BANKING CORPORATION
(B.S.C.),
by
/s/ Stephen A. Plauche
------------------------
Name: Stephen A. Plauche
Title: Vice President
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED, CAYMAN
ISLANDS BRANCH,
by
/s/ K. Loughlin
-------------------
Name: K. Loughlin
Title: Vice President
BANK AUSTRIA
AKTIENGESELLSCHAFT,
by
/s/ J. Anthony Seay
-----------------------
Name: J. Anthony Seay
Title: Vice President
by
/s/ Mark Nolan
------------------
Name: Mark Nolan
Title: Assistant Vice
President
BANK OF AMERICA ILLINOIS,
by
/s/ W. Thomas Barnett
-----------------------
Name: W. Thomas Barnett
BANK OF MONTREAL,
by
/s/ Michael P. Sassos
------------------------
Name: Michael P. Sassos
Title: Director
THE BANK OF NOVA SCOTIA,
by
/s/ F.C.H. Ashby
-------------------
Name: F.C.H. Ashby
Title: Senior Manager
Loan Operations
THE BANK OF TOKYO-MITSUBISHI,
LTD. HOUSTON AGENCY,
by
/s/ John W. McGhee
----------------------
Name: John W. McGhee
Title: Vice President and
Manager
BANQUE NATIONALE DE PARIS,
by
/s/ John L. Stacy
--------------------
Name: John L. Stacy
Title: Vice President
BANQUE PARIBAS,
by
/s/ Marian Livingston
-------------------------
Name: Marian Livingston
Title: Vice President
by
/s/ Michael Fiuzat
----------------------
Name: Michael Fiuzat
Title: Vice President
BARCLAYS BANK PLC,
by
/s/ Carol A. Cowan
----------------------
Name: Carol A. Cowan
Title: Director
CHRISTIANIA BANK OG
KREDITKASSE,
by
/s/ Peter M. Dodge
---------------------
Name: Peter M. Dodge
Title: First Vice
President
by
/s/ Carl-Petter Svendsen
------------------------
Name: Carl-Petter Svendsen
Title: First Vice
President
DAI-ICHI KANGYO BANK, LTD.,
by
/s/ Masayoshi Komaki
------------------------
Name: Masayoshi Komaki
Title: Vice President
DEUTSCHE BANK, AG, SINGAPORE
BRANCH,
by
/s/ Raymond Lee
-------------------
Name: Raymond Lee
Title: First Vice
President, Head of
Credit Department
by
/s/ Tan Tiat Hern
---------------------
Name: Tan Tiat Hern
Title: First Vice
President, Head of
Corporate Banking
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN
BRANCH,
by
/s/ Wayde Colquhoun
----------------------
Name: Wayde Colquhoun
Title: Vice President
by
/s/ P. Douglas Sherrod
-----------------------
Name: P.Douglas Sherrod
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO,
by
/s/ William V. Clifford
---------------------------
Name: William V. Clifford
Title: Vice President
FIRST NATIONAL BANK OF
COMMERCE,
by
/s/ Joshua C. Cummings
-------------------------
Name: Joshua C. Cummings
Title: Assistant Vice
President
THE FUJI BANK, LIMITED,
HOUSTON AGENCY,
by
/s/ David Kelley
--------------------
Name: David Kelley
Title: Sr. Vice President
HIBERNIA NATIONAL BANK,
by
/s/ Steven Nance
--------------------
Name: Steven Nance
Title: Banking Officer
THE INDUSTRIAL BANK OF JAPAN,
LIMITED NEW YORK BRANCH,
by
/s/ Kensaku Iwata
---------------------
Name: Kensaku Iwata
Title: Senior Vice
President,
Houston Office
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED,
by
/s/ Sadao Muraoka
---------------------
Name: Sadao Muraoka
Title: Head of Southwest
Region
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED,
by
/s/ Margaret Holloway
-------------------------
Name: Margaret Holloway
Title: Vice President and
Manager
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
by
/s/ John Kowalczuk
---------------------
Name: John Kowalczuk
Title: Vice President
NATIONAL WESTMINSTER BANK PLC,
by
/s/ David Rowley
--------------------
Name: David Rowley
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
(NASSAU BRANCH),
by
/s/ David Rowley
--------------------
Name: David Rowley
Title: Vice President
THE NORINCHUKIN BANK, NEW YORK
BRANCH,
by
/s/ Takeshi Akimoto
----------------------
Name: Takeshi Akimoto
Title: General Manager
PT BANK NEGARA INDONESIA
(PERSERO),
by
/s/ Dewa Suthapa
--------------------
Name: Dewa Suthapa
Title: General Manager
P.T. BANK RAKYAT INDONESIA
(PERSERO),
by
/s/ Kemas M. Ariee
---------------------
Name: Kemas M. Ariee
Title: General Manager
by
/s/ David W. Opdyke
----------------------
Name: David W. Opdyke
Title: Deputy General
Manager
REPUBLIC NATIONAL BANK OF
NEW YORK,
by
/s/ W.S. Eobie III
----------------------
Name: W. S. Eobie III
Title: Senior Vice
President
THE ROYAL BANK OF SCOTLAND
PLC,
by
/s/ Russell M Gibson
-------------------------
Name: Russell M. Gibson
Title: Vice President &
Deputy Manager
THE SAKURA BANK, LIMITED, NEW
YORK BRANCH,
by
/s/ Yasumasa Kikuchi
-----------------------
Name: Yasumasa Kikuchi
Title: Senior Vice
President
THE SANWA BANK LIMITED, DALLAS
AGENCY,
by
/s/ L. J. Perenyi
---------------------
Name: L. J. Perenyi
Title: Vice President
SOCIETE GENERALE, SOUTHWEST
AGENCY,
by
/s/ Elizabeth W. Hunter
---------------------------
Name: Elizabeth W. Hunter
Title: Vice President
THE SUMITOMO BANK, LIMITED,
by
/s/ Harumitsu Seki
---------------------
Name: Harumitsu Seki
Title: General Manager
THE TOKAI BANK, LIMITED,
by
/s/ Kaoru Oda
----------------
Name: Kaoru Oda
Title: Assistant General
Manager
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY,
by
/s/ Dan O. Boyle
-------------------
Name: Dan O. Boyle
Title: Managing Director
by
/s/ J. Finley Biggerstaff
---------------------------
Name: J. Finley Biggerstaff
Title: Assistant Vice
President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE,
by
/s/ Richard R. Newman
------------------------
Name: Richard R. Newman
Title: Vice President
by
/s/ Thomas Lee
------------------
Name: Thomas Lee
Title: Associate
EXHIBIT A-1
PROMISSORY NOTE
$ New York, New York
June 30, 1995
FOR VALUE RECEIVED, the undersigned, P.T. FREEPORT
INDONESIA COMPANY, a limited liability company organized
under the laws of Indonesia and also domesticated in Delaware
(the "Borrower"), hereby promises to pay to the order of
[name of Bank] (the "Bank"), at the office of The Chase
Manhattan Bank (the "Administrative Agent"), at 270 Park
Avenue, New York, New York 10017, on the Maturity Date as
defined in the Credit Agreement entered into as of June 30,
1995 (as amended, restated or modified from time to time, the
"Credit Agreement"), among the Borrower, FREEPORT-McMoRan
COPPER & GOLD INC., a Delaware corporation, the Banks named
theerein, FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION (for
purposseess of Article VIII thereof only), as trustee for the
Banks under the FI Trust Agreement (as defined therein), and
the Agents (as defined in the Credit Agreement), the lesser
of the principal sum of [amount of commitment] Dollars ($
) and the aggregate unpaid principal amount of all Loans
made by the Bank to the Borrower pursuant to Section 3.2 of
the Credit Agreement, in lawful money of the United States of
America in same day funds, and to pay interest from the date
hereof on such principal amount from time to time
outstanding, in like funds, at said office, at a rate or
rates per annum and payable on such dates as determined
pursuant to the Credit Agreement.
The Borrower promises to pay interest, on demand,
on any overdue principal and, to the extent permitted by law,
overdue interest from their due dates at a rate or rates
determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment,
demand, protest and notice of any kind whatsoever. The
nonexercise by the holder of any of its rights hereunder in
any particular instance shall not constitute a waiver thereof
in that or any subsequent instance.
All borrowings evidenced by this Promissory No and
all payments and prepayments of the principal hereof and
interest hereon and the respective dates thereof shall be
endorsed by the holder hereof on the schedule attached hereto
and made a part hereof, or on a continuation thereof which
shall be attached hereto and made a part hereof, or otherwise
recorded by such holder in its internal records; provided,
however, that any failure of the holder hereof to make a
notation or any error in such notation shall not in any
manner affect the obligation of the Borrower to make payments
of principal and interest in accordance with the terms of
this Promissory Note and the Credit Agreement.
This Promissory Note is one of the Promissory Notes
referred to in the Credit Agreement which, among other
things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for
optional and mandatory prepayment of the principal hereof
prior to the maturity thereof and for the amendment or waiver
of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. This Promissory Note
and the borrowings evidenced hereby are entitled to the
benefits of the FI Security Documents (as defined in the
Credit Agreement). THIS PROMISSORY NOTE SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
P.T. FREEPORT INDONESIA
COMPANY,
by
Name:
Title:
EXHIBIT A-2
PROMISSORY NOTE
$ New York, New York
June 30, 1995
FOR VALUE RECEIVED, the undersigned, FREEPORT-
McMoRan COPPER & GOLD INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of [name of
Bank] (the "Bank"), at the office of The Chase Manhattan
Bank (the "Administrative Agent"), at 270 Park Avenue,
New York, New York 10017, on the Maturity Date as defined in
the Credit Agreement entered into as of June 30, 1995 (as
amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, P.T.
FREEPORT INDONESIA COMPANY, a limited liability company
organized under the laws of Indonesia and also domesticated
in Delaware, the Banks named therein, FIRST TRUST OF NEW
YORK, NATIONAL ASSOCIATION (for purposes of Article VIII
thereof only), as trustee for the Banks under the FI Trust
Agreement (as defined therein), and the Agents (as defined
in the Credit Agreement), the lesser of the principal sum of
[amount of commitment] Dollars ($ ) and the aggregate
unpaid principal amount of all Loans made by the Bank to the
Borrower pursuant to Section 3.2 of the Credit Agreement, in
lawful money of the United States of America in same day
funds, and to pay interest from the date hereof on such
principal amount from time to time outstanding, in like
funds, at said office, at a rate or rates per annum and
payable on such dates as determined pursuant to the Credit
Agreement.
The Borrower promises to pay interest, on demand,
on any overdue principal and, to the extent permitted by
law, overdue interest from their due dates at a rate or
rates determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment,
demand, protest and notice of any kind whatsoever. The
nonexercise by the holder of any of its rights hereunder in
any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Promissory Note
and all payments and prepayments of the principal hereof and
interest hereon and the respective dates thereof shall be
endorsed by the holder hereof on the schedule attached
hereto and made a part hereof, or on a continuation thereof
which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records;
provided, however, that any failure of the holder hereof to
make a notation or any error in such notation shall not in
any manner affect the obligation of the Borrower to make
payments of principal and interest in accordance with the
terms of this Promissory Note and the Credit Agreement.
This Promissory Note is one of the Promissory
Notes referred to in the Credit Agreement which, among other
things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for
optional and mandatory prepayment of the principal hereof
prior to the maturity thereof and for the amendment or
waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified. THIS
PROMISSORY NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
FREEPORT-McMoRan COPPER &
GOLD INC.,
by
Name:
Title:
Note:
All Schedules have been omitted and will be provided upon
request.