EXECUTION COPY
AMENDMENT dated as of October 9, 1996 (this "Amendment"), to the Credit
Agreement dated as of June 30, 1995 (as heretofore amended, the
"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"), 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 below), and as security agent for the Banks and
RTZ-IIL (in such capacity, the "JAA Security Agent") under the JAA
Fiduciary Transfer and the JAA Fiduciary Power (as defined below), 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, the "Agents"). Capitalized terms used herein and
not defined herein shall have the meanings given such terms in the
Credit Agreement.
Section 10.17 of the Credit Agreement contemplates that the
Banks, FCX and FI shall agree on mutually satisfactory documentation
to implement the RTZ Transaction, including the Participation
Agreement, the RTZ Loan Agreement, the FI Intercreditor Agreement and
the Final FI Security Documents. FI, FCX, the Banks and the Agents
wish to enter into this Amendment to evidence their approval of the
documents to be entered into in connection with the RTZ Transaction,
to provide for certain amendments to the Credit Agreement to take into
account such documents and to make certain other arrangements in
connection with the RTZ Transaction.
By its execution and delivery of this Amendment, each Bank
also wishes, in connection with the RTZ Transactions, to:
(a) authorize the Agents, on behalf of such Bank and the
other Banks, to enter into the Agreement to Amend and Restate
Trust Agreement dated as of the RTZ Closing Date among FI, FCX,
RTZ, PT-RTZ, RTZ Lender, the Trustee, the Depositary, the
Documentary Agent, the Security Agent, the JAA Security Agent and
the Administrative Agent (the "AART") and the FI Intercreditor
Agreement, Operator Replacement Agreement and Restated Trust
Agreement referred to in the AART and to enter into the RTZ Side
Letter and the Early Closing Documents;
(b) authorize Chase to act as Security Agent for the Banks
under the Bank Security Agreement in the form attached as Exhibit
A hereto, the Bank Surat Kuasa in the form attached as Exhibit B
hereto and the Bank Fiduciary Assignment of Accounts Receivable
in the form attached as Exhibit E hereto;
(c) authorize Chase to act as JAA Security Agent for the
Banks and RTZ-IIL under the JAA Fiduciary Power in the form
attached as Exhibit F hereto and the JAA Fiduciary Transfer in
the form attached as Exhibit G hereto;
(d) approve the replacement of the Trustee as security agent
under the Interim Fiduciary Transfer and the Interim Fiduciary
Power by Chase in its capacity as Security Agent, together with
the amendment and restatement of the Interim Fiduciary Transfer
in the form attached as Exhibit C hereto and the Interim
Fiduciary Power in the form attached as Exhibit D hereto, such
amendments and restatements to be the Final Fiduciary Transfer
and the Final Fiduciary Power, respectively, for all purposes of
the Loan Documents;
(e) agree to submit to the exclusive jurisdiction of the
United States District Court for the Southern District of
New York and of any New York State court sitting in Manhattan
solely for the purposes of suits, actions or proceedings to
enforce the terms of the FI Intercreditor Agreement and authorize
the Administrative Agent (acting as Representative of the Banks
under the FI Intercreditor Agreement) to provide such submission
to New York jurisdiction for such Bank pursuant to Section 16 of
the FI Intercreditor Agreement;
(f) approve the release upon the RTZ Closing Date of the
Banks' security interests (and authorize the FI Trustee to
release such security interests) in the PT-RTZ Joint Venture
Interests (as defined in the AART) pursuant to the AART, in order
to permit their assignment to PT-RTZ pursuant to the
Participation Agreement, the AART and the PT-RTZ COW Assignment;
(g) approve the release of the Banks' security interests in
the rights of FI under the Contract of Work in respect of
Contract Block B (as defined in the Contract of Work) and in any
Greenfield Projects and Sole Risk Projects (as such terms are
defined in the Participation Agreement) in Contract Block A (as
defined in the Contract of Work) and authorize the Agents to
effectuate such release of security interests, including
instructing the FI Trustee to such effect; and
(h) authorize the Administrative Agent and the Documentary
Agent, acting on behalf of such Bank and the other Banks, to
subordinate the Banks' liens on the FIEC Interests (as defined in
the Restated Trust Agreement) to the RTZ Lender's lien on the
FIEC Interests on the terms of the FI Intercreditor Agreement.
Accordingly, FI, FCX, the Trustee, the Banks and the
Agents agree as follows:
SECTION 1. Amendments to the Credit Agreement. Effective
as of the Effective Date, the Credit Agreement is hereby amended as
follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by
substituting the following modified definitions for the equivalent
definitions which presently appear in such Section:
(i) "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 FI, together
with any related Implementation Agreement or Memorandum of
Understanding with such Ministry of Mines acting on behalf of the
Government of the Republic of Indonesia, after giving effect to
the PT-RTZ COW Assignment, as such agreement may be implemented,
supplemented or amended as permitted hereby from time to time.
(ii) "FI Intercreditor Agreement" means the Intercreditor
Agreement entered into as of the RTZ Closing Date among the
Administrative Agent on behalf of the Banks under the Corporate
Group Facility, RTZ Lender, PT-RTZ and the FI Trustee
substantially in the form attached to the AART as Exhibit B-1
thereto and attached hereto as Exhibit I, as such agreement may
be amended and in effect from time to time.
(iii) "FI Security Documents" means the FI Trust Agreement,
the Operator Replacement Agreement, the Surat Kuasa, the
Fiduciary Assignment, the JAA Fiduciary Transfer, the JAA
Fiduciary Power, the Bank Security Agreement, the Fiduciary
Transfer, the Bank Fiduciary Assignment, the Fiduciary Power, the
Bank Surat Kuasa and all Uniform Commercial Code financing
statements and their Indonesian equivalents required to be filed
hereunder or under the FI Security Documents.
(iv) "FI Trustee" means First Trust of New York, National
Association, or any successor trustee, as trustee for FI, PT-RTZ
and the Secured Creditors (including the Banks) 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.
(v) "Final FI Trust Agreement" means the Restated Trust
Agreement dated as of the RTZ Closing Date, among FI, PT-RTZ, the
Depositary, the FI Trustee, the Administrative Agent and RTZ
Lender, as amended and restated by the AART substantially in the
form attached as Exhibit A thereto and attached hereto as
Exhibit G-1, and as further amended and in effect from time to
time thereafter.
(vi) "Final Fiduciary Assignment" means the Fiduciary
Assignment of Accounts Receivable (Penyerahan Hak Atas Tagihan)
dated the RTZ Closing Date, granted by FI and PT-RTZ to the FI
Trustee substantially in the form attached to the AART as Exhibit
E thereto and attached hereto as Exhibit G-5, as amended and in
effect from time to time.
(vii) "Final Fiduciary Power" means the Second Amended and
Restated Power of Attorney to Establish Fiduciary Transfer (Kuasa
Untuk Memasang Penyerahan Hak Milik Fidusia) dated the RTZ
Closing Date, granted by FI to the Security Agent, substantially
in the form attached hereto as Exhibit G-4, and any additional or
separate Fiduciary Power granted by FI to the Banks, acting
through the Security Agent, with respect to specific or
additional assets, in each case as further amended and in effect
from time to time.
(viii) "Final Fiduciary Transfer" means the Second Amended and
Restated Fiduciary Transfer of Assets (Penyerahan Hak Secara
Fidusia) dated the RTZ Closing Date, granted by FI to the Banks,
acting through the Security Agent, substantially in the form
attached hereto as Exhibit G-3, and any additional or separate
Fiduciary Transfer granted by FI to the Banks, acting through the
Security Agent, with respect to specific or additional assets, in
each case as further amended and in effect from time to time.
(ix) "Final Surat Kuasa" means the Surat Kuasa (Power of
Attorney) dated the RTZ Closing Date, granted by FI and PT-RTZ to
the FI Trustee substantially in the form attached as Annex I to
the Operator Replacement Agreement and attached as Exhibit G-2
hereto, as amended and in effect from time to time.
(x) "Loan Documents" means the Amendment Agreement, the
Corporate Group Facility, the Corporate Group Notes, the FI
Intercreditor Agreement, the Side Letter, the Early Closing
Documents, the AART, the FI Security Documents and all other
agreements, certificates and instruments now or hereafter entered
into in connection with any of the foregoing, in each case as
amended and modified from time to time.
(xi) "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.
(xii) "Participation Agreement" means the Participation
Agreement dated the RTZ Closing Date between FI and PT-RTZ
substantially in the form attached to the AART as Exhibit J
thereto, as amended from time to time as permitted by
Section 5.3.
(xiii) "RTZ Collateral" means the FIEC Interests pledged to RTZ
Lender as contemplated by the RTZ Loan Agreement, the Final FI
Trust Agreement and the FI Intercreditor Agreement.
(xiv) "RTZ Interests" means the interests of PT-RTZ in the
Contract of Work and the Joint Account Assets (as such term is
defined in the Participation Agreement) pursuant to the
Participation Agreement and in the Concentrate Sales Agreements
pursuant to the Final FI Trust Agreement, in each case as
permitted by Section 5.3.
(xv) "RTZ Lender" means RTZ Indonesian Finance Limited, a
company organized under the laws of England and a wholly owned
subsidiary of RTZ.
(xvi) "RTZ Loan Agreement" means the Loan Agreement dated the
RTZ Closing Date between FI and RTZ Lender substantially in the
form attached to the AART as Exhibit K thereto, as amended from
time to time as permitted by Section 5.3.
(xvii) "RTZ Release" means the Indonesian release document
dated the RTZ Closing Date pursuant to which the Trustee releases
the PT-RTZ Joint Venture Interests (as such term is defined in
the Participation Agreement) from the Lien of the FI Security
Documents as in effect prior to the RTZ Closing Date.
(xviii) "RTZ Transactions" means the transactions contemplated
by the AART, the Participation Agreement, the Final FI Trust
Agreement, the Operator Replacement Agreement, the RTZ Loan
Agreement, the Side Letter, the Early Closing Documents, the RTZ
Release and the FI Intercreditor Agreement, in each case to the
extent permitted by Section 5.3.
(b) Section 1.1 of the Credit Agreement is hereby further amended
by adding the following defined terms in the appropriate alphabetical
order:
(i) "AART" means the Agreement to Amend and Restate Trust
Agreement dated as of the RTZ Closing Date among FI, FCX, RTZ,
PT-RTZ, RTZ Lender, the Trustee, the Administrative Agent, the
Security Agent, the JAA Security Agent, the Documentary Agent and
the Depositary.
(ii) "Bank Fiduciary Assignment" means the Second Amended and
Restated Fiduciary Assignment of Accounts Receivable (the
Penyerahan Hak Atas Tagihan) dated the RTZ Closing Date, granted
by FI to the Banks, acting through the Security Agent,
substantially in the form attached hereto as Exhibit G-8, and any
additional or separate Fiduciary Assignment granted by FI to the
Banks, 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.
(iii) "Bank Security Agreement" means the Bank Security
Agreement dated as of the RTZ Closing Date between FI and the
Security Agent substantially in the form attached hereto as
Exhibit G-6, as amended and in effect from time to time.
(iv) "Bank Security Documents" means the Bank Security
Agreement, the Bank Surat Kuasa, the Fiduciary Transfer, the
Fiduciary Power and the Bank Fiduciary Assignment.
(v) "Bank Surat Kuasa" means the Surat Kuasa (Power of
Attorney) dated the RTZ Closing Date, granted by FI to the
Security Agent substantially in the form attached hereto as
Exhibit G-7, and any additional or separate Surat Kuasa granted
by FI to the Banks, acting through the Security Agent, with
respect to specific or additional assets, in each case as amended
and in effect from time to time.
(vi) "Early Closing Agreement" means the Early Closing
Agreement dated as of the RTZ Closing Date among FI, FCX, RTZ,
PT-RTZ (as a company in formation under the laws of Indonesia),
RTZ Jersey Investments One Limited, RTZ Jersey Nominees Limited,
the Trustee, the Administrative Agent, the Security Agent, the
JAA Security Agent and the Depositary, substantially in the form
attached to the AART as Exhibit B-2 and attached hereto as
Exhibit E.
(vii) "Early Closing Documents" means the (x) the Early
Closing Agreement, (y) the related Ratifying Agreement between
such parties in the form attached to such Early Closing Agreement
as Schedule 1 thereto and (z) any additional or further agreement
entered into on behalf of the Banks in connection with such
agreement by the Agents in such form as approved by the
Administrative Agent.
(viii) "FIEC Interests" means FI's interest in Incremental
Expansion Cashflow (as such term is defined in the Participation
Agreement) and FI's related rights pursuant to the Final FI Trust
Agreement under the Concentrate Sales Agreements.
(ix) "JAA Fiduciary Power" means the Power of Attorney to
Establish Fiduciary Transfer (Kuasa Untuk Memasang Penyerahan Hak
Milik Fidusia) for Joint Account Assets dated the RTZ Closing
Date, granted by FI and PT-RTZ to the Security Agent,
substantially in the form attached hereto as Exhibit G-9, and any
additional or separate Fiduciary Power granted by FI and PT-RTZ
to the Security Agent with respect to the Joint Account Assets,
in each case as further amended and in effect from time to time.
(x) "JAA Fiduciary Transfer" means the Fiduciary Transfer of
Assets (Penyerahan Hak Secara Fidusia) for Joint Account Assets
dated the RTZ Closing Date, granted by FI and PT-RTZ to the
Security Agent, substantially in the form attached hereto as
Exhibit G-10, and any additional or separate Fiduciary Transfer
granted by FI and PT-RTZ to the Security Agent with respect to
the Joint Account Assets, in each case as further amended and in
effect from time to time.
(xi) "JAA Security Agent" means Chase, not in its individual
capacity, but as JAA Security Agent for the Banks and RTZ under
the JAA Fiduciary Power and the JAA Fiduciary Transfer.
(xii) "Operator Replacement Agreement" means the Operator
Replacement Agreement dated as of the RTZ Closing Date among FI,
PT-RTZ, the Trustee and the Administrative Agent (in its capacity
as Operator Selection Representative) substantially in the form
attached to the AART as Exhibit D thereto, as further amended and
in effect from time to time.
(xiii) "Operator Selection Representative" means the
Administrative Agent acting as the Operator Selection
Representative under the Operator Replacement Agreement, pursuant
to its designation in Section 10.17 as Operator Selection
Representative, as confirmed in Annexes 1 and 2 to the Final FI
Trust Agreement.
(xiv) "PT-RTZ COW Assignment" means the Assignment Agreement
dated as of RTZ Closing Date between FI and PT-RTZ substantially
in the form of Exhibit C to the AART pursuant to which FI assigns
a partial undivided interest in the Contract of Work to PT-RTZ.
(xv) "Secured Creditors" means those secured lenders to FI
(including the Banks) referred to in the Annexes to the Final FI
Trust Agreement.
(xvi) "Security Agent" means Chase, not in its individual
capacity, but as Security Agent for the Banks under the Bank
Security Agreement, the Bank Surat Kuasa, the Bank Fiduciary
Assignment, the Final Fiduciary Power and the Final Fiduciary
Transfer.
(xvii) "Side Letter" means the agreement dated as of the RTZ
Closing Date between FI, RTZ, PT-RTZ, RTZ Lender, RTZ-IIL, the
Trustee, the JAA security Agent and certain secured creditors of
FI, substantially in the form attached to the AART as Exhibit B-3
and as attached hereto as Exhibit H, as further amended and in
effect from time to time.
(c) Section 2.1 of the Credit Agreement is hereby amended
by the substitution of the words "Base Production (as such term is
defined in the Final FI Trust Agreement) and, after the RTZ Lender
loan is repaid in full and so long as the Banks have a first priority
security interest in the FIEC Interests under the Final FI Trust
Agreement, the FIEC Interests" for the words "assets of FI" at the end
of the fourth sentence thereof.
(d) Section 5.l(h) of the Credit Agreement is hereby
amended by adding the words ", the Security Agent and the JAA Security
Agent, as applicable," after the words "FI Trustee" in each of the two
places in which "FI Trustee" is used in clause (i) thereof and by
amending clause (x) thereof to read as follows: "(x) the validity and
effectiveness of the powers of attorney granted by the Surat Kuasa,
the Bank Surat Kuasa, the Fiduciary Power and the JAA Fiduciary Power
and the fiduciary transfers effectuated by the Fiduciary Transfer, the
Fiduciary Assignment, the Bank Fiduciary Assignment and the JAA
Fiduciary Transfer".
(e) Section 5.2(i) of the Credit Agreement is hereby
amended by the addition of the words "after giving effect to the RTZ
Transactions" after the words "Closing Date" appearing therein.
(f) Section 5.2(l) of the Credit Agreement is hereby
amended by the addition of the words "and the guarantee provided in
Section 10(1) of the Implementation Agreement" after the words
"FCX/FMPO Guarantee" appearing in the proviso to such Section.
(g) Section 5.3 of the Credit Agreement is hereby amended
by:
(i) changing the clause subheadings "(i)" and "(ii)" in the
first sentence thereof to "(I)" and "(II)", respectively;
(ii) adding the words "(including the Financial and
Accounting Procedures thereunder)" following the first reference
to "Participation Agreement" in clause (y) of such resubheaded
clause (I) in such first sentence;
(iii) adding the words "(or could reasonably be expected to)"
after the words "which would" appearing in such resubheaded
clause (I) in such first sentence;
(iv) substituting the words "Section 7.5.1.1, 7.5.1.3 or 10.5
or Annex A" for the words "Section 10.5" in clause (i) in the
second sentence thereof;
(v) adding the words "or Section 7 of the Early Closing
Agreement" after the words "Implementation Agreement" in clause
(iv) in the second sentence thereof;
(vi) substituting ", (vi) 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 FI
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, (vii)
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 (viii)" for the words "or (vi)" in
the second sentence thereof; and
(vii) substituting the words "Final FI Trust Agreement" for
the words "FI Trust Agreement" in the third sentence thereof.
(h) Section 6.1(c)(i) of the Credit Agreement is hereby
amended by the substitution of the words "G-4, G-5, G-6, G-7, G-8, G-9
and G-10" for the words "G-4 and G-5" appearing therein.
(i) Section 6.1(c)(v) of the Credit Agreement is hereby
amended by the substitution of the words "Jones, Walker, Waecter,
Poitevent, Carrere & Denegre, LLP" for the words "Liskow & Lewis"
appearing therein.
(j) Section 6.1(c)(vii)(C)(II) and Section
6.1(c)(vii)(C)(III) are each hereby amended by deleting the word
"specimen" appearing therein.
(k) Section 7.1 of the Credit Agreement is hereby amended
(i) by the substitution of the words ", 5.3 or 10.17" for the words
"or 5.3" in each of the two places appearing in paragraph (e) thereof
and (ii) by the addition in clause (iii) of such Section 7.1 of the
words ", including the giving of an Allocation Notice, Blockage Notice
or Enforcement Notice under the Final FI Trust Agreement and/or the
exercise by the Administrative Agent of its right pursuant to Section
10.17 to remove FI as Operator under the Contract of Work pursuant to
the Operator Replacement Agreement" after the words "FI Security
Documents" appearing therein.
(l) Section 8.1(a) of the Credit Agreement is hereby
amended to read as follows:
"(a) For convenience of administration and to expedite the
transactions contemplated by this Agreement, (i) Chase is hereby
appointed as Administrative Agent under this Agreement and the
other Loan Documents (including in its capacity as Operator
Selection Representative under the Operator Replacement
Agreement), (ii) Chase is hereby appointed as Security Agent for
the Banks under this Agreement and the Bank Security Documents,
(iii) Chase is hereby appointed as JAA Security Agent for the
Banks under this Agreement, the JAA Fiduciary Power and the JAA
Fiduciary Transfer, (iv) Chase is hereby appointed as the
Documentary Agent for the Banks under this Agreement and the
other Loan Documents and (vi) First Trust of New York, National
Association, is hereby appointed to act as FI Trustee for the
Banks under the FI Trust Agreement, the Operator Replacement
Agreement, the Surat Kuasa, the RTZ Release and the Fiduciary
Assignment. Each Bank (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.
None of the Agents shall have any duties or responsibilities
except those expressly set forth herein or in the other Loan
Documents. Each Bank, and each subsequent holder of any
Promissory Note by its acceptance thereof, hereby irrevocably
appoints and expressly authorizes the Agents, without hereby
limiting any implied authority, to take such action as the Agents
may deem appropriate on its behalf and to exercise such powers
under the Loan Documents as are specifically delegated to such
Person by the terms hereof and thereof, together with such powers
as are reasonably incidental thereto. The Administrative Agent
is hereby expressly authorized by the Banks, without hereby
limiting any implied authority, (A) to receive on behalf of the
Banks all payments of principal of and interest on the Loans and
all other amounts due to the Banks hereunder, and promptly to
distribute to each Bank its proper share of each payment so
received; (B) to give notice on behalf of the Banks to FI and FCX
of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection
with its agency hereunder or as directed by the Required Banks;
and (C) to distribute to each Bank copies of all notices,
financial statements and other materials delivered by FI or FCX
pursuant to this Agreement as received by the Administrative
Agent. Without limiting the generality of the foregoing, the
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 Bank Security Documents,
the JAA Fiduciary Power 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 Bank Security Documents. Each of the
Administrative Agent, the Security Agent and the JAA Security
Agent may exercise any of its duties hereunder by or through
their respective agents, officers or employees. In addition,
each Bank hereby irrevocably authorizes and directs (I) the
Administrative Agent to enter, on behalf of each of them, into
the AART, the Final FI Trust Agreement, the FI Intercreditor
Agreement, the Operator Replacement Agreement, the Early Closing
Documents and the Side Letter as contemplated pursuant to this
Agreement, (II) the Security Agent to enter, on behalf of each of
them, into the Bank Security Agreement, the Bank Surat Kuasa, the
Fiduciary Transfer, the Fiduciary Power, the Bank Fiduciary
Assignment, the FI Intercreditor Agreement, the Operator
Replacement Agreement, the Early Closing Documents and the Side
Letter, (III) the JAA Security Agent to enter, into on behalf of
each of them, into the JAA Fiduciary Power, into the JAA
Fiduciary Transfer, the Early Closing Documents and the Side
Letter, (IV) the FI Trustee to enter, on behalf of each of them,
into the Operator Replacement Agreement, the Surat Kuasa, the
Fiduciary Assignment, the Early Closing Documents, the RTZ
Release and the Side Letter and (V) the Documentary Agent to
enter, on behalf of each of them, into the AART, the Early
Closing Documents and the Side Letter, and in each case agrees to
be bound by the terms thereof."
(m) Section 8.1(c) of the Credit Agreement is hereby
amended by substituting the words "a party to the Operator Replacement
Agreement, the Surat Kuasa and the Fiduciary Assignment to the extent
representing the interests of the Banks" for the words "security agent
under the FI Security Documents" appearing in the parenthetical phrase
in the first sentence thereof.
(n) Sections 8.1(e), 8.1(f) and 8.1(g) of the Credit
Agreement are hereby amended by adding the words ", Security Agent,
JAA Security Agent" after the words "Administrative Agent" in each
place where such phrase appears in such Sections.
(o) Section 8.1(h) of the Credit Agreement is hereby
amended to read as follows:
"(h) Without the prior written consent of the Required
Banks but subject to Section 10.7(b), the Administrative Agent,
the Security Agent and the JAA Security Agent will not, except as
contemplated by Section 8.1(j), consent to any modification,
supplement or waiver of the FI Intercreditor Agreement, the Bank
Security Documents, the FI Trust Agreement, the Operator
Replacement Agreement, the JAA Fiduciary Power 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."
(p) Section 8.1(j) of the Credit Agreement is hereby
amended by (x) substituting the following for the opening phrase
appearing prior to the existing clause (i) thereof:
"Notwithstanding any other provision of this Section 8.1, the
Administrative Agent will, at the request of FI, instruct the FI
Trustee and/or the Security Agent, as applicable, to release (or
to subordinate such interest) from the FI Trust Agreement and/or
the Bank Security Agreement and/or the other FI Security
Documents, as applicable (and enter into an amendment to the FI
Trust Agreement and/or the Bank 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 and/or the Security Agent, as applicable, in"
and (y) the deletion of clauses (i) and (ii) thereof and the
renumbering of clauses (iii), (iv) and (v) as (i), (ii)and (iii),
respectively, and by changing the reference to "clauses (iii) and
(iv)" in the last sentence thereof to a reference to "clauses (i) and
(ii)".
(q) Section 10.17 of the Credit Agreement is hereby amended
to read in its entirety as follows:
"SECTION 10.17 RTZ Transactions. The Agents and the Banks
acknowledge that FI and FCX have agreed pursuant to the
Implementation Agreement to enter into the RTZ Transactions. The
Banks, FI and FCX have, pursuant to the Amendment dated as of
October 9, 1996, to this Agreement, agreed upon and approved the
documentation to be entered into by FI in connection with the
foregoing as required by this Agreement as in effect prior to the
RTZ Closing Date. FI hereby (i) appoints the Administrative
Agent to be the Operator Selection Representative for all
purposes of the Final 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 FI as Operator under the Contract of Work and
appoint a replacement Operator, which shall be PT-RTZ or an
Affiliate of PT-RTZ designated by PT-RTZ if PT-RTZ 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). FI
also irrevocably and unconditionally agrees that the
Administrative Agent, acting as the Operator Selection
Representative under the Final 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.
FI further agrees that it will not appoint any other Operator
Selection Representative other than the Administrative Agent (or,
except as provided to PT-RTZ in the Participation Agreement,
grant any other Person the right to remove FI (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. FI also
agrees that the Administrative Agent shall be entitled to
exercise FI'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 FI
after the occurrence of an Event of Default, in addition to the
other rights and remedies available to the Agents and the Banks
under the Loan Documents and applicable law. Each of the Agents,
the Banks, FI and FCX acknowledge that the Final FI Trust
Agreement will not terminate prior to termination of the
Participation Agreement."
(r) The Final FI Trust Agreement in the form attached as
Exhibit A to the AART is hereby added to the Credit Agreement as
Exhibit G-1 thereto, the FI Intercreditor Agreement in the form
attached as Exhibit B-1 to the AART is hereby added to the Credit
Agreement as Exhibit I thereto, the Surat Kuasa in the form attached
as Exhibit I to the Operator Replacement Agreement is hereby added to
the Credit Agreement as Exhibit G-2 thereto, the Fiduciary Assignment
in the form attached as Exhibit E to the AART is hereby added to the
Credit Agreement as Exhibit G-3 thereto, the Early Closing Agreement
(including Schedule 1 thereto) in the form attached as Exhibit B-2 to
the AART are hereby added to the Credit Agreement as Exhibit E
thereto, the Side Agreement in the form attached as Exhibit B-3 to the
AART is hereby added to the Credit Agreement as Exhibit H thereto, and
Exhibits A, B, C, D and E to this Amendment are hereby added to the
Credit Agreement as Exhibits G-6, G-7, G-8, G-9 and G-10 thereto,
respectively.
SECTION 2. Authorizations to the Agents; Agreement to
Submit to Jurisdiction. (a) Each Bank hereby (i) authorizes the
Administrative Agent and Documentary Agent, acting on behalf of such
Bank and the other Banks, to enter into and perform the FI
Intercreditor Agreement, the Final FI Trust Agreement, the Operator
Replacement Agreement, the Side Letter, the Early Closing Documents
and the AART (including the subordination of the Banks' lien on the
FIEC Interests to RTZ Lender's lien on the FIEC Interests on the terms
of the FI Intercreditor Agreement), (ii) authorizes the Trustee to
release all the security interests of the Banks in the PT-RTZ Joint
Venture Interests upon the Closing pursuant to the AART and the RTZ
Release, in order to permit their assignment to PT-RTZ pursuant to the
Participation Agreement, the AART and the PT-RTZ COW Assignment,
(iii) appoints Chase as the Security Agent for such Bank and the other
Banks and authorizes the Security Agent to enter into and perform the
Bank Security Agreement, the Bank Surat Kuasa, the Fiduciary Transfer,
the Fiduciary Power and the Bank Fiduciary Assignment for the benefit
of such Bank and the other Banks, (iv) appoints Chase as the JAA
Security Agent for such Bank and the other Banks and authorizes the
JAA Security Agent to enter into and perform the JAA Fiduciary
Transfer, the JAA Fiduciary Power and the Side Letter for the benefit
of such Bank and the other Banks, (v) consents to RTZ Lender and the
Trustee (acting on behalf of RTZ Lender) taking Remedial Actions
against the RTZ Lender Collateral (as such terms are defined in the FI
Intercreditor Agreement) as provided in the RTZ Loan Agreement and the
Final FI Trust Agreement, and (vi) consents to FI entering into and
performing the transactions contemplated by the Transaction Documents
(as such term is defined in the AART) to which it is a party,
including the entry into and performance of the Participation
Agreement, the incurrence of the RTZ Loan and FI's granting the RTZ
Lender Lien to RTZ Lender on the terms of the Final FI Trust
Agreement, in accordance with Sections 5.3 and 10.17.
(b) Each Bank also hereby agrees to submit to the exclusive
jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in
Manhattan solely for the purposes of suits, actions or proceedings to
enforce the terms of the FI Intercreditor Agreement and authorizes the
Administrative Agent (acting as Representative of the Banks under the
FI Intercreditor Agreement) to provide such submission to New York
jurisdiction on behalf of such Bank pursuant to Section 16 of the FI
Intercreditor Agreement.
SECTION 3. Conditions to Effectiveness. (a) 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 Banks, of executed counterparts of this Amendment which, when
taken together, bear the signatures of FI, FCX, the 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) FI and FCX shall be in compliance with all the terms
and provisions set forth in this Amendment and the Credit
Agreement to be observed or performed on their part, and as of
the Effective Date, no Event of Default nor any event which upon
notice or lapse of time or both would constitute such an Event of
Default shall have occurred and be continuing;
(d) all legal matters incident to this Amendment shall be
satisfactory to Cravath, Swaine & Moore, special counsel for the
Banks; and
(e) the conditions to closing set forth in Section 6 of the
AART and in Section 6.1(c) of the FCX Credit Agreement shall have
duly occurred or been waived by the Required Banks;
provided, however, that FI shall not be entitled to borrow under the
Credit Agreement until FI shall provide the Administrative Agent with
a certified copy of the shareholders resolution referred to in Section
6(b) hereof, together with an opinion of counsel reasonably
satisfactory to the Administrative Agent as to the validity and
effectiveness of such resolution.
SECTION 4. 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 5. Limited Effect of Amendment. Section 1 hereof
constitutes an amendment of the Credit Agreement effective as of the
Effective Date. Except as, and until, expressly amended by such
Section 1 as of the Effective Date, the Credit Agreement shall
continue in full force and effect in accordance with the provisions
thereof as in effect prior to the Effective Date. Except as expressly
set forth herein, this Amendment shall not by implication or otherwise
limit, impair, constitute a waiver of, or otherwise affect the rights
and remedies of the Banks and the Agents under the Credit Agreement,
nor alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the
Credit Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect. This Amendment
shall apply and be effective only with respect to the provisions of
the Credit Agreement specifically referred to in Section 1 hereof.
SECTION 6. Representations and Covenants. (a) FCX and FI
jointly represent and warrant to the Agents and the Banks that (i) at
a meeting to be held on October 11, 1996, the FI Board of
Commissioners will duly call an Extraordinary General Meeting of
Shareholders of FI to be held on October 21, 1996, for the purpose,
inter alia, of approving and ratifying the encumbrance of FI's assets
under the FI Security Documents executed at the Closing as security
for the Company's indebtedness, including indebtedness incurred under
the Corporate Group Facility; and (ii) FCX is the owner of 184,890 FI
shares, constituting 81.27% of the issued and outstanding shares
issued by FI, and which are sufficient to approve and ratify such
encumbrance without the vote of any other shareholder.
(b) FCX covenants and agrees with the Agents and the Banks
that an Extraordinary General Meeting of Shareholders of FI will be
held not later than November 11, 1996, at which FCX shall vote the
184,890 FI shares owned by it in favor of the resolution approving and
ratifying the encumbrance of FI's assets under the FI Security
Documents executed at the Closing as security for the Company's
indebtedness, including indebtedness incurred under the Corporate
Group Facility.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 8. Expenses. FI and FCX jointly and severally
shall pay all out-of-pocket expenses incurred by the Agents in
connection with the preparation of this Amendment, 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 9. Headings. The headings of this Amendment are
for reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers or agents
as of the date first above written.
P.T. FREEPORT INDONESIA COMPANY,
by /s/ R. Foster Duncan
-----------------------------------
Name: R. Foster Duncan
Title: Treasurer
FREEPORT-McMoRan COPPER & GOLD INC.,
by /s/ R. Foster Duncan
-----------------------------------
Name: R. Foster Duncan
Title: Treasurer
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, as FI Trustee,
by /s/ Ward A. Spooner
-----------------------------------
Name: Ward A. Spooner
Title: Treasurer
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 Sniels
-----------------------------------
Name: H. Gene Sniels
Title: V.P. and Director
by /s/ Mike Oakes
-----------------------------------
Name: Mike Oakes
Title: 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/ Paul Clifford
-----------------------------------
Name: Paul Clifford
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/ James E. Flough
-----------------------------------
Name: James E. Flough
Title: Managing Director
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/ Brian Malone
-----------------------------------
Name: Brian Malone
Title: Vice President
by /s/ Marian Livingston
-----------------------------------
Name: Marian Livingston
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/ Hans Chr. Kjelsrud
-----------------------------------
Name: Hans Chr. Kjelsrud
Title: Vice President
DAI-ICHI KANGYO BANK, LTD.,
by /s/ Masayoshi Komaki
-----------------------------------
Name: Masayosji Komaki
Title: Assistant Vice President
DEUTSCHE BANK, AG, NEW YORK AND/OR CAYMAN
ISLANDS BRANCHES,
by
-----------------------------------
Name:
Title:
by
-----------------------------------
Name:
Title:
DEUTSCHE BANK, AG, SINGAPORE BRANCH,
by
-----------------------------------
Name:
Title:
by
-----------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK BRANCH AND GRAND
CAYMAN BRANCH,
by /s/ P. Douglas Sherrod
-----------------------------------
Name: P. Douglas Sherrod
Title: Vice President
by /s/ Raymond F. Keenan
-----------------------------------
Name: Raymond F. Keenan
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
by /s/ George R. Schanz
-----------------------------------
Name: /s/ George R. Schanz
Title: Vice President
FIRST NATIONAL BANK OF COMMERCE,
by /s/ Joshua C. Cummings
-----------------------------------
Name: Joshua C. Cummings
Title: Relationship Manager
THE FUJI BANK, LIMITED, HOUSTON AGENCY,
by /s/ Yoshiaki Inque
-----------------------------------
Name: Yoshiaki Inque
Title: Vice President and Manager
HIBERNIA NATIONAL BANK,
by /s/ Steven D. Nance
-----------------------------------
Name: Steven D. Nance
Title: Banking Officer
THE INDUSTRIAL BANK OF JAPAN, LIMITED NEW
YORK BRANCH,
by /s/ Akijiro Yoshino
-----------------------------------
Name: Akijiro Yoshino
Title: Executive Vice President
HOUSTON OFFICE
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
by /s/ John J. Sullivan
-----------------------------------
Name: John J. Sullivan
Title: Joint General Manager
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/ Robert Bottamedi
-----------------------------------
Name: Robert Bottamedi
Title: Vice President
NATIONAL WESTMINSTER BANK PLC,
by /s/ Ian M. Plester
-----------------------------------
Name: Ian M. Plester
Title: Vice President
NATIONAL WESTMINSTER BANK PLC (NASSAU BRANCH),
by /s/ Ian M. Plester
-----------------------------------
Name: Ian M. Plester
Title: Vice President
THE NORINCHUKIN BANK, NEW YORK BRANCH,
by /s/ Takeshi Akinoto
-----------------------------------
Name: Takeshi Akinoto
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. Arief
-----------------------------------
Name: Kemas M. Arief
Title: General Manager
by /s/ David W. Opdyke
-----------------------------------
Name: David W. Opdyke
Title: Deputy General Manager
REPUBLIC NATIONAL BANK OF NEW YORK,
by /s/ Richard J. Ward
-----------------------------------
Name: Richard J. Ward
Title: 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, HOUSTON AGENCY,
by /s/ Akira Hara
-----------------------------------
Name: Akira Hara
Title: General Manager
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, HOUSTON AGENCY,
by /s/ Toshiro Kubota
-----------------------------------
Name: Toshiro Kubota
Title: Joint General Manager
THE TOKAI BANK, LIMITED,
by /s/ Masaharu Muto
-----------------------------------
Name: Masaharu Muto
Title: Deputy General Manager
UNION BANK OF SWITZERLAND, HOUSTON AGENCY,
by /s/ Dan O'Boyle
-----------------------------------
Name: Dan O'Boyle
Title: Managing Director
by /s/ Cynthia A. P. Deere
-----------------------------------
Name: Cynthia A. P. Deere
Title: Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
by /s/ Richard R. Newman
-----------------------------------
Name: Richard R. Newman
Title: Vice President
by /s/ Salvatore Battinelli
-----------------------------------
Name: Salvatore Battinelli
Title: Vice President
Credit Department
YASUDA TRUST AND BANKING COMPANY,
by /s/ Makoto Tagawa
-----------------------------------
Name: Makoto Tagawa
Title: Deputy General Manager