AGREEMENT to AMEND
and
RESTATE TRUST AGREEMENT
dated as of
October 11, 1996
among
P.T. FREEPORT INDONESIA COMPANY,
FREEPORT-McMoRan COPPER & GOLD INC.,
THE RTZ CORPORATION PLC,
P.T. RTZ-CRA INDONESIA,
RTZ INDONESIAN FINANCE LIMITED,
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
as Trustee,
THE CHASE MANHATTAN BANK (formerly Chemical Bank), as Administrative
Agent, as JAA Security Agent
and as Security Agent,
and
THE CHASE MANHATTAN BANK (as successor to The Chase Manhattan Bank
(National Association)),
as Documentary Agent
and as Depositary
TABLE OF CONTENTS
Section Page
Recitals.......................................2
1. Defined Terms, etc............................10
2. The Closing; The Closing Date;
Termination...................................11
3. Releases and Assignments......................12
4. Amendment of the Existing Trust Agreement;
Change of Security Agent for the Bank
Security Agreements...........................16
5. Representations and Warranties................17
6. Conditions to Closing.........................20
7. Amendment; Waiver.............................21
8. Counterparts..................................21
9. Applicable Law................................21
10. Expenses......................................21
11. References; Headings..........................22
12. Construction..................................22
13. Submission to Jurisdiction; Waiver of Jury
Trial; Commercial Obligations and
Immunity......................................22
14. Survival of Representations and
Warranties....................................23
Exhibit A Amended and Restated Trust Agreement
Exhibit B-1 Intercreditor Agreement
Exhibit B-2 Early Closing Agreement
Exhibit B-3 Side Letter
Exhibit C PT-RTZ COW Assignment
Exhibit D Operator Replacement Agreement
Annex I Surat Kuasa
Exhibit E Fiduciary Assignment of Accounts Receivable
Exhibit F-1 FI Bank Credit Agreement Amendment
Exhibit F-2 CDF Bank Credit Agreement Amendment
Exhibit A Bank Security Agreement
Exhibit B Bank Surat Kuasa
Exhibit C Amended and Restated Fiduciary Transfer
Exhibit D Amended and Restated Fiduciary Power
Exhibit E Bank Fiduciary Assignment of Accounts Receivable
Exhibit G Fiduciary Transfer of Joint Account Assets
Exhibit H Power of Attorney to Establish Fiduciary Transfer of
Joint Account Assets
Exhibit I Consent of Minister of Mines
Exhibit J Participation Agreement
Exhibit K RTZ Loan Agreement
AGREEMENT TO AMEND AND RESTATE TRUST AGREEMENT
dated as of October 11, 1996, among P.T. FREEPORT
INDONESIA COMPANY, a limited liability company
organized under the laws of Indonesia and also
domesticated in Delaware ("FI"), FREEPORT-McMoRan
COPPER & GOLD INC., a Delaware corporation ("FCX"), THE
RTZ CORPORATION PLC, a public limited company organized
under the laws of England ("RTZ"), P.T. RTZ-CRA
INDONESIA, a company in formation under the laws of the
Republic of Indonesia ("PT-RTZ"), RTZ INDONESIAN
FINANCE LIMITED, a company organized under the laws of
England and a wholly owned subsidiary of RTZ ("RTZ
Lender"), FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, not in its individual capacity but solely
as Trustee under the Trust Agreement referred to below,
THE CHASE MANHATTAN BANK (formerly Chemical Bank)
("Chase"), not in its individual capacity but solely as
(i) Administrative Agent for the Banks under the CDF
and FI Credit Agreement (in such capacity, the
"Administrative Agent"), (ii) security agent for the
Banks under the Bank Security Documents referred to
below (in such capacity, the "Security Agent") and
(iii) as security agent with respect to the Joint
Account Assets for RTZ Indonesian Investments Limited,
a company organized under the laws of England ("RTZ-
IIL"), and the Banks under the JAA Fiduciary Transfer
and the JAA Fiduciary Power (in such capacity, the "JAA
Security Agent"), and THE CHASE MANHATTAN BANK (as
successor to The Chase Manhattan Bank (National
Association)), not in its individual capacity but
solely as (i) depositary under the Trust Agreement (in
such capacity, the "Depositary") and (ii) Documentary
Agent for the Banks under the CDF and the FI Credit
Agreement (in such capacity the "Documentary Agent";
the Administrative Agent, the Security Agent and the
Documentary Agent being sometimes collectively referred
to herein as the "Bank Agents" and FI, FCX, RTZ, PT-
RTZ, RTZ Lender, the Trustee, the JAA Security Agent,
the Depositary and the Bank Agents being each referred
to herein as a "Transaction Party" and, collectively,
as the "Transaction Parties").
Recitals
I. By a letter of intent dated March 7, 1995 from FCX to
RTZ and signed by RTZ as of March 7, 1995 (the "Letter of Intent"),
FCX and RTZ confirmed their mutual intention with respect to, among
other things, the establishment of joint ventures and certain
financing arrangements in connection therewith, to explore and develop
within the Contract Area covered by the Contract of Work.
II. By an agreement dated as of May 2, 1995 made between
FCX and RTZ (the "Implementation Agreement"), FCX and RTZ recorded the
steps to be taken, subject to the satisfaction or waiver of
conditions, in order to implement the transactions referred to in the
Letter of Intent.
III. Among the steps so recorded in the Implementation
Agreement are:
(a) the execution by FI and PT-RTZ of a participation
agreement substantially in the form set out in
Schedule 1 to the Implementation Agreement,
providing for the participation of PT-RTZ in
certain operations under the Contract of Work on
the terms contained therein, with amendments
agreed between them; and
(b) the execution by FI and RTZ Lender of a loan
agreement substantially in the form set out in
Schedule 2 to the Implementation Agreement,
whereby RTZ Lender will make available to FI a
loan facility in a principal amount of up to
$450,000,000 on the terms contained therein, with
amendments agreed between them.
IV. It is the intention of FCX and RTZ, as reflected and
provided in the Letter of Intent and the Implementation Agreement and
agreements attached as Schedules thereto, that, among other things:
(a) all rights and interests of PT-RTZ in and under
the participation agreement referred to in clause
(a) of Recital III shall be assigned on an
unencumbered basis, free and clear of all liens,
security interests and other encumbrances
whatsoever; and
(b) FI shall assign to PT-RTZ a partial undivided
interest in the Contract of Work, which interest
shall be assigned on an unencumbered basis, free
and clear of all liens, security interests and
other encumbrances whatsoever; and
(c) the repayment of all advances made pursuant to the
loan agreement referred to in clause (b) of
Recital III shall be secured by a first priority
lien on 100% of FI's share of Incremental
Expansion Cashflow (as defined therein).
V. FI is party to (a) a Credit Agreement dated as of
October 27, 1989 (as amended, the "FI Credit Agreement"), among FI,
FCX, certain banks (the "Banks"), the Administrative Agent, the
Security Agent, the JAA Security Agent, the Trustee and the
Documentary Agent, providing for a $550,000,000 credit facility for
FI, and (b) a $450,000,000 Credit Agreement dated as of June 30, 1995
(as amended, the "CDF"), among FI, FCX, the Banks, the Administrative
Agent, the Security Agent, the JAA Security Agent, the Trustee and the
Documentary Agent, providing for a $450,000,000 credit facility for
FCX and FI.
VI. FI has granted to the Trustee for the benefit of the
Banks a first priority security interest in the Contract of Work and
substantially all its other assets pursuant to (a) a Trust Agreement
dated as of May 15, 1970 (as amended from time to time and as in
effect immediately prior to the Closing the "Existing Trust
Agreement"), among FI, the Trustee and the Depositary and (b) the
other FI Security Documents (as such term is defined in the Existing
Trust Agreement).
VII. In order to effect and permit the transactions referred
to in Recitals I through IV, the following, among other things, are
required:
(a) the release by the Banks of any security interest
that the Banks may now have or hereafter acquire
with respect to the rights and properties granted
or assigned to PT-RTZ pursuant to the
Participation Agreement, including, but not
limited to, (i) Sole Risk Ventures undertaken by
PT-RTZ; (ii) PT-RTZ's interest in Joint
Operations; (iii) PT-RTZ's interest in Joint
Account Assets; (iv) PT-RTZ's interest in
Incremental Expansion Cashflow from Block A, Net
Sales Revenues from Greenfield Projects in Block A
and Net Sales Revenues from Block B; (v) PT-RTZ's
interest under the Restated Trust Agreement in the
Concentrate Sales Agreements; (vi) PT-RTZ's
interest under the Restated Trust Agreement and
the Participation Agreement in Proceeds; and (vii)
PT-RTZ's interest in the Contract of Work (all of
the foregoing referred to as the "PT-RTZ Joint
Venture Interests"), in each such case only to the
extent necessary to grant to and vest in PT-RTZ
the PT-RTZ Joint Venture Interests free and clear
of any lien in favor of the Banks;
(b) the assignment by FI to PT-RTZ of a partial
undivided beneficial interest in the Contract of
Work (the "PT-RTZ COW Interest");
(c) the assignment by FI to RTZ Lender of a first
priority security interest (the "RTZ Lender Lien")
with respect to FI Incremental Expansion Cashflow
(and FI's related rights under the Contract of
Work and Concentrate Sales Agreements) (the "FIEC
Interests");
(d) the subordination by the Banks for the benefit of
RTZ Lender of any security interest that the Banks
may now have or hereafter acquire with respect to
the FIEC Interests until the RTZ Lender Loan is
repaid (the "Bank FIEC Lien"); and
(e) after giving effect to (i) the prior release of
the Banks' security interest in the PT-RTZ Joint
Venture Interests and (ii) the subordination to
the RTZ Lender Lien of the security interest of
the Banks with respect to the FIEC Interests, the
continuance of the security interests granted to
the Trustee for the benefit of the Banks pursuant
to the Existing Trust Agreement, the Restated
Trust Agreement and the other FI Security
Documents, including the Bank Security Documents.
VIII. In order to implement and give effect to various
provisions of the Participation Agreement, in particular the orderly
administration and collection of accounts receivable arising in
connection with the Concentrate Sales Agreements, PT-RTZ is willing
to, among other things, permit the Trustee to hold in trust, for the
benefit of PT-RTZ, the PT-RTZ CSA Interests (as defined below)
assigned by FI to the Trustee upon the terms and conditions of the
Restated Trust Agreement (as defined below).
IX. In order to perfect the RTZ Lender Lien and to provide
for the orderly administration and collection of accounts receivable,
RTZ Lender is willing to, among other things, permit the Trustee to
hold in trust, as security for the benefit of RTZ Lender and the
Banks, the FIEC Interests.
X. In order to accommodate and take into account all of the
foregoing transactions, FI and the Banks are willing to make certain
amendments to the CDF, the FI Credit Agreement and the FI Security
Documents pursuant to the Bank Credit Agreement Amendments, including
(i) replacement of the Trustee by Chase as security agent for the
Banks under the FI Security Documents (in the case of FI's interest in
Joint Account Assets, by Chase as JAA Security Agent) respect to all
assets and interests of FI other than the Contract of Work, the
Concentrate Sales Agreements and Proceeds (for which the Trustee will
continue to act as security trustee for the Banks pursuant to the
Restated Trust Agreement) and (ii) transfer of the Banks' security
interests in such other assets from the Existing Trust Agreement to
the Bank Security Agreement, and to give the undertakings contained in
this Agreement.
XI. In order to consummate the transactions referred to in
Recitals I through X, the Transaction Parties are entering into this
Agreement and the other Transaction Documents, effective as of the
Closing, as follows:
(a) FI, FCX, PT-RTZ, RTZ, RTZ Jersey Investments One
Limited, RTZ Jersey Nominees Limited, the Trustee,
the Bank Agents, the Depositary and the JAA
Security Agent are executing and delivering an
early closing agreement in the form of Exhibit B-2
hereto (such early closing agreement, as amended,
modified, supplemented and restated from time to
time, the "Early Closing Agreement");
(b) FI and PT-RTZ, pursuant to the Implementation
Agreement, are executing and delivering a
participation agreement in the form attached as
Exhibit J hereto (such participation agreement, as
amended, modified, supplemented and restated from
time to time, the "Participation Agreement");
(c) FI and RTZ Lender, pursuant to the Implementation
Agreement, are executing and delivering an RTZ
loan agreement in the form of Exhibit K hereto
(such RTZ loan agreement, as amended, modified,
supplemented and restated from time to time, the
"RTZ Loan Agreement");
(d) FI, PT-RTZ, the Depositary and the Trustee are
executing and delivering a Restated Trust
Agreement substantially in the form of Exhibit A
hereto (as amended, modified, supplemented and
restated from time to time, the "Restated Trust
Agreement"), which gives effect to, or as the case
may be is after giving effect to, (i) the release
herein by the Trustee on behalf of the Banks of
the security interest of the Banks in the PT-RTZ
Joint Venture Interests to the extent necessary to
grant to and vest in PT-RTZ the PT-RTZ Joint
Venture Interests, free and clear of such security
interest, (ii) the subordination for the benefit
of RTZ Lender of the security interest of the
Banks with respect to the FIEC Interests, (iii)
the grant by FI to the Trustee for the benefit of
RTZ Lender of the RTZ Lender Lien, (iv) the
assignment by FI to PT-RTZ of the PT-RTZ COW
Interest pursuant to the PT-RTZ COW Assignment,
(v) the absolute assignment by FI to the Trustee
of all FI's right, title and interest in and to
the Contract of Work (after giving effect to the
assignment referred to in clause (iv) above), the
Concentrate Sales Agreements and the Proceeds
(including the undivided beneficial interest in
the Concentrate Sales Agreements and the Proceeds
to be held for the benefit of PT-RTZ ("the PT-RTZ
CSA Interests") to be held in trust on the terms
of the Restated Trust Agreement), and (vi) certain
other arrangements as provided in the Restated
Trust Agreement, including arrangements for (1)
the receipt, allocation and payment of cashflow
resulting from the Contract of Work, the
Concentrate Sales Agreements and the Proceeds, and
(2) the continuance of the security interests
granted by FI to the Trustee for the benefit of
the Banks in all FI's retained right, title and
interest in and to the Contract of Work, the
Concentrate Sales Agreements and the Proceeds (in
the case of the FIEC Interests only, subject and
subordinate to the RTZ Lender Lien on the terms of
the Intercreditor Agreement);
(e) RTZ, PT-RTZ, RTZ Lender and the Bank Agents
(acting on behalf of the Banks) are executing and
delivering an intercreditor agreement
substantially in the form of Exhibit B-1 hereto
(as amended, modified, supplemented and restated
from time to time, the "Intercreditor Agreement"),
which provides for certain intercreditor
arrangements and agreements relating to, among
other things, (i) FI's interests in the Contract
of Work, Concentrate Sales Agreements, Proceeds,
Joint Account Assets and FI Available Assets, (ii)
the RTZ Lender Lien, (iii) the PT-RTZ CSA
Interests, and (iv) the PT-RTZ COW Interest;
(f) FI, RTZ, PT-RTZ, the Bank Agents, the JAA Security
Agent, the Depositary, the Trustee, RTZ Lender and
RTZ-IIL are executing and delivering an agreement
in the form of Exhibit B-3 hereto (as amended,
modified, supplemented and restated from time to
time, the "Side Letter"), which provides for
certain additional intercreditor arrangements and
agreements relating to, among other things, FI's
and PT-RTZ's respective interests in the accounts
receivable in relation to the Concentrate Sales
Agreements and the Proceeds and Joint Account
Assets;
(g) FI and PT-RTZ are executing and delivering an
assignment substantially in the form of Exhibit C
hereto (as amended, modified, supplemented and
restated from time to time, the "PT-RTZ COW
Assignment"), which provides for the assignment to
PT-RTZ of the PT-RTZ COW Interest;
(h) the parties thereto are executing and delivering
the Operator Replacement Agreement, substantially
in the form of Exhibit D hereto (as amended,
modified, supplemented and restated from time to
time, the "Operator Replacement Agreement");
(i) FI and PT-RTZ are executing and delivering a surat
kuasa substantially in the form attached as Annex
I to the Operator Replacement Agreement (as
amended, modified, supplemented and restated from
time to time, the "Surat Kuasa");
(j) for the purposes of providing the Trustee (i) for
the benefit of the Banks (subject to the interest
of RTZ Lender with respect to the FIEC Interests
only) a security interest in FI's accounts
receivable in relation to the Concentrate Sales
Agreements and the Proceeds and (ii) for the
benefit of RTZ-IIL a security interest in PT-RTZ's
interest in accounts receivable in relation to the
Concentrate Sales Agreements and the Proceeds, the
parties thereto are executing and delivering a
Fiduciary Assignment of Accounts Receivable
substantially in the form of Exhibit E hereto (as
amended, modified supplemented and restated from
time to time, the "Fiduciary Assignment of
Accounts Receivable");
(k) FI, the Bank Agents, the JAA Security Agent, the
Trustee and the Banks have executed and delivered
an FI Bank Credit Agreement Amendment
substantially in the form of Exhibit F-1 hereto
and a CDF Bank Credit Agreement Amendment
substantially in the form of Exhibit F-2 hereto
(as such agreements may be amended, modified,
supplemented and restated from time to time,
collectively the "Bank Credit Agreement
Amendments"), and, pursuant thereto the Bank Surat
Kuasa, Bank Fiduciary Assignment of Accounts
Receivable, Amended Fiduciary Transfer, Amended
Fiduciary Power and Bank Security Agreement are
being executed and delivered by the parties
thereto, all such documents to be effective as of
the Closing;
(l) for the purpose of providing the JAA Security
Agent (i) for the benefit of the Banks a security
interest in FI's interest in Joint Account Assets
and (ii) for the benefit of RTZ-IIL a security
interest in PT-RTZ's interest in Joint Account
Assets, the JAA Security Agent, FI and PT-RTZ are
executing and delivering a Fiduciary Transfer of
Joint Account Assets substantially in the form of
Exhibit G hereto (as amended, modified,
supplemented and restated from time to time, the
"JAA Fiduciary Transfer") and a Power of Attorney
to Establish Fiduciary Transfer of Joint Account
Assets substantially in the form of Exhibit H
hereto (as amended, modified, supplemented and
restated from time to time, the "JAA Fiduciary
Power");
(m) The Trustee shall release the PT-RTZ Joint Venture
Interests (as such term is defined in the
Participation Agreement) from the Lien of the FI
Security Documents as in effect prior to the RTZ
Closing Date pursuant to an Indonesian release
document dated the RTZ Closing Date (the "RTZ
Release").
In order to accomplish the arrangements described above and
certain related transactions, the Transaction Parties agree as
follows:
SECTION 1. Defined Terms, etc. The terms defined below in
this Section 1 shall for all purposes of this agreement have the
meanings specified below unless the context otherwise requires.
"Amended Fiduciary Power" means the amended and restated
fiduciary power substantially in the form of Exhibit D to the Bank
Credit Agreement Amendments.
"Amended Fiduciary Transfer" means the amended and restated
fiduciary transfer substantially in the form of Exhibit C to the Bank
Credit Agreement Amendments.
"Bank Fiduciary Assignment of Accounts Receivable" means the
fiduciary assignment of accounts receivable substantially in the form
of Exhibit E to the Bank Credit Agreement Amendments.
"Bank Lien" means any lien on any asset of FI or any of its
subsidiaries granted from time to time during the term of this
Agreement to the Trustee pursuant to the Restated Trust Agreement and
the Fiduciary Assignment of Accounts Receivable, to the JAA Security
Agent pursuant to the JAA Fiduciary Power and the JAA Fiduciary
Transfer or to the Security Agent pursuant to the Bank Security
Documents or any other agreement or instrument, in each case for the
benefit of the Banks, as security for the payment of the FI
Indebtedness owing to the Banks.
"Bank Security Agreement" means a security agreement
substantially in the form of Exhibit A to the Bank Credit Agreement
Amendments.
"Bank Security Documents" means the Bank Security Agreement,
the Bank Surat Kuasa, the Bank Fiduciary Assignment of Accounts
Receivable, the Amended Fiduciary Transfer and the Amended Fiduciary
Power.
"Bank Surat Kuasa" means a surat kuasa substantially in the
form of Exhibit B to the Bank Credit Agreement Amendments.
"Governmental Agency" means the Government of the Republic
of Indonesia (including the President and any Minister) and any
material state, provincial or local court or governmental agency,
authority, instrumentality or regulatory body of Indonesia or any
other country.
"Indonesian Notarized Documents" means the PT-RTZ COW
Assignment, the Surat Kuasa, the Fiduciary Assignment of AccAccounts
Receivable, the Bank Surat Kuasa, the Bank Fiduciary Assignment of
Accounts Receivable, the Amended Fiduciary Transfer, the Amended
Fiduciary Power, the JAA Fiduciary Power, the JAA Fiduciary Transfer,
the RTZ Release and the Side Letter.
"Remedial Action" means (a) any claim, proceeding or action
to foreclose upon, take possession or control of, sell, lease or
otherwise dispose of, or in any other manner realize, take steps to
realize or seek to realize upon, the whole or any part of the assets,
properties or interests of FI and its subsidiaries, whether pursuant
to the UCC, by foreclosure, by setoff, by self-help repossession, by
notification to account debtors, by deed in lieu of foreclosure, by
exercise of power of sale, by judicial action or otherwise, and (b)
any action taken to remove FI as Operator in accordance with the
Participation Agreement, the FI Credit Documents or the Operator
Replacement Agreement.
"Transaction Documents" means this Agreement, the Restated
Trust Agreement, the Participation Agreement, the RTZ Loan Agreement,
the Intercreditor Agreement, the Bank Credit Agreement Amendments, the
PT-RTZ COW Assignment, the Indonesian Notarized Documents, the Bank
Security Agreement, the Early Closing Agreement (including the related
Ratifying Agreement in the form attached to the Early Closing
Agreement as Schedule 1 thereto, which shall not be executed on the
Closing Date referred to in Section 2(b) below) and the Operator
Replacement Agreement.
"Trust Agreement" means, prior to the Closing, the Existing
Trust Agreement and, from and after the Closing, the Restated Trust
Agreement.
Capitalized terms used herein and not otherwise defined
herein (including in Section 1) shall have the meanings assigned to
such terms in, or by reference in, the Restated Trust Agreement
(including certain terms defined therein by reference to the
Participation Agreement).
SECTION 2. The Closing; The Closing Date. (a) The
transactions provided for in Sections 3 and 4 are being consummated
simultaneously at a closing (collectively, the "Closing") on the
Closing Date referred to in Section 2(b) (i) at the offices of Davis
Polk & Wardwell, New York, New York, for all Transaction Documents
other than the Indonesian Notarized Documentation and the PT-RTZ COW
Assignment (the "NY Closing"), and (ii) at the notary office of Ramah
Arie Soetardjo, Jakarta, Indonesia, for the Indonesian Notarized
Documents and the PT-RTZ COW Assignment (the "Indonesian Closing").
(b) The "Closing Date" shall be the date of execution of
this Agreement. All documentation to be executed and delivered at the
NY Closing shall have been finalized and duly executed prior to the
Closing Date and shall have been held in escrow pending completion of
the Indonesian Closing on the Closing Date (Jakarta time), whereupon
the documents held in escrow for the NY Closing shall have been
released from escrow on the Closing Date (New York City time) and the
Closing thereby deemed fully consummated in all respects. All
transactions constituting the Closing shall be deemed to have been
consummated on the Closing Date and, except for the sequencing of
certain transactions as expressly provided herein, all such
transactions shall be deemed to have occurred concurrently.
3. Releases and Assignments. (a) Effective upon the
Closing, the Administrative Agent hereby instructs the Trustee and the
Security Agent to release, and they shall be deemed to have hereby
released, any security interest that the Banks may now have or
hereafter acquire with respect to the PT-RTZ Joint Venture Interests.
The release of the Banks' security interests in the PT-RTZ Joint
Venture Interests shall be and become effective upon the Closing and
shall be further evidenced by the RTZ Release; provided that, without
derogation from the foregoing, to the extent that any of the PT-RTZ
Joint Venture Interests is created or comes into effect in accordance
with the Participation Agreement subsequent to the Closing Date, the
Banks shall at the Closing be deemed to have automatically released
any security interest they may then or thereafter have under the
Restated Trust Agreement or the Bank Security Documents in such
subsequently created or arising PT-RTZ Joint Venture Interests without
the necessity of any further act, document or instrument, with full
force and effect as if the Banks had specifically released their
security interests at such subsequent time. All FI's right, title and
interest in and to the Contract of Work, the Concentrate Sales
Agreements and the Proceeds which is not assigned to PT-RTZ pursuant
to the PT-RTZ COW Assignment or assigned to the Trustee pursuant to
the Restated Trust Agreement to be held for the benefit of PT-RTZ, as
applicable, and all of FI's other assets and interests heretofore
pledged to the Banks but not constituting PT-RTZ Joint Venture
Interests (collectively, the "FI Retained Interests") shall continue
to be retained by FI subject to the RTZ Lender Lien as to the FIEC
Interests only and the security interests of the Banks. Each of the
Transaction Parties acknowledges and agrees that, subject and
subordinate to the RTZ Lender Lien as to the FIEC Interests only, the
continuity, perfection, priority and validity of the Banks' security
interests in the FI Retained Interests shall not in any manner be
affected, interrupted, waived or released by the Banks' release of the
PT-RTZ Joint Venture Interests, the assignment by FI to PT-RTZ of the
PT-RTZ COW Interest or the assignment by FI to the Trustee of the PT-
RTZ CSA Interests to be held for the benefit of PT-RTZ.
(b) Effective as of the Closing and the concurrent release
of the Banks' security interests therein pursuant to Section 3(a) and
the RTZ Release, FI hereby assigns, sets over, transfers and conveys
to PT-RTZ the PT-RTZ COW Interest, to have and to hold the same unto
PT-RTZ on the terms, conditions and obligations contained in the
Participation Agreement. PT-RTZ hereby accepts the assignment of the
PT-RTZ COW Interest and covenants and agrees that it shall, at any
such time as PT-RTZ shall become Operator pursuant to the terms of the
Participation Agreement, be bound by, observe and perform all of the
provisions of the Contract of Work to be observed and performed by the
Operator under the Participation Agreement. Until it is replaced as
Operator in accordance with the Operator Replacement Agreement, FI
shall remain responsible to the Government of the Republic of
Indonesia for the conduct of all operations under the Contract of Work
and for all communications with the Government of the Republic of
Indonesia under the Contract of Work on behalf of itself and PT-RTZ.
In order to effect, confirm and evidence the assignment of the PT-RTZ
COW Interest to PT-RTZ, FI and PT-RTZ are executing and delivering the
PT-RTZ COW Assignment at the Indonesian Closing. Each of FI and PT-
RTZ covenants and agrees with each other that at the request of the
other it will execute such further documents and do all such further
acts as may reasonably be required for the purpose of vesting the PT-
RTZ COW Interest in PT-RTZ.
(c) Effective as of the Closing, FI hereby assigns, sets
over and transfers to the Trustee the Concentrate Sales Agreements and
the Proceeds to hold in trust for the benefit of FI (and the Secured
Creditors) and PT-RTZ on the terms and conditions set forth in the
Restated Trust Agreement (in the case of PT-RTZ, to the extent
necessary to grant to and vest in PT-RTZ the PT-RTZ Joint Venture
Interests listed in clauses (a)(iv)-(vi) of Recital VII
(collectively, the "PT-RTZ Revenue Interests")); provided that,
without derogation from the foregoing, to the extent that any PT-RTZ
Revenue Interest is created or comes into effect in accordance with
the Participation Agreement subsequent to the Closing Date, FI shall
be deemed to have automatically assigned, set over, transferred and
conveyed to the Trustee to hold in trust for the benefit of PT-RTZ a
further undivided beneficial interest in the Concentrate Sales
Agreements and Proceeds with respect thereto commensurate with such
subsequently created or arising PT-RTZ Revenue Interest without the
necessity of any further act, document or instrument, with full force
and effect as if FI had assigned, set over, transferred and conveyed
to the Trustee to hold in trust for the benefit of PT-RTZ (and the
Banks had concurrently released their security interest in) such
undivided beneficial interest in the Concentrate Sales Agreements and
Proceeds at such subsequent time and such undivided beneficial
interest shall be deemed to be a PT-RTZ CSA Interest for all purposes
of this Agreement, the Participation Agreement, the Concentrate Sales
Agreements and the Restated Trust Agreement. Such assignment of the
Concentrate Sales Agreements and the Proceeds to the Trustee pursuant
to the immediately preceding sentence is intended by FI, the Trustee
and the other parties hereto to be not merely a security assignment,
but rather a present and absolute assignment (subject to the Banks'
security interests therein) of the Concentrate Sales Agreements and
the Proceeds. The Trustee and PT-RTZ each hereby accepts the
assignment of the PT-RTZ CSA Interests and covenants and agrees that
it shall, at all times hereafter, be bound by, observe and perform all
of the provisions of the Restated Trust Agreement insofar as they
relate to the PT-RTZ CSA Interests. Each of FI and PT-RTZ covenants
and agrees with each other and the Trustee that, at the request of the
other or of the Trustee, it will execute such further documents and do
all such further acts as may reasonably be required for the purpose of
vesting the PT-RTZ CSA Interests in the Trustee for the benefit of PT-
RTZ under the Restated Trust Agreement. For the purposes of (i)
granting a security interest for the benefit of the Banks (subject to
the interest of RTZ Lender with respect to FIEC Interests only) in
FI's interest in accounts receivable in relation to the Concentrate
Sales Agreements and the Proceeds (and not by way of security for the
benefit of the Banks over PT-RTZ's interest therein) and (ii) granting
a security interest for the benefit of RTZ-IIL in PT-RTZ's interest in
accounts receivable in relation to the Concentrate Sales Agreements
and the Proceeds (and not by way of security for the benefit of RTZ
Lender or RTZ-IIL over FI's interest therein) the parties thereto have
executed and delivered the Fiduciary Assignment of Accounts Receivable
at the Closing.
(d) After giving effect to the releases by the Banks
contained in clause (a) of this Section 3 and the assignment by FI to
the Trustee for the benefit of PT-RTZ contained in clause (c) of this
Section 3, FI hereby assigns, sets over, transfers and conveys to the
Trustee, to be held on the terms and conditions of the Restated Trust
Agreement for the benefit of the various persons and interests
(including FI and the Secured Creditors) provided therein, FI's entire
right, title and interest in and to the Contract of Work, subject,
however, to the existing first priority perfected security interest
therein of the Banks, which in the case of the FIEC Interests only is
itself subject to the first priority security interests in favor of
RTZ Lender referred to in Section 3(f), such assignment, setting over,
transfer and conveyance being effective as of the Closing.
(e) Each of the Transaction Parties acknowledges and agrees
that the continuity, perfection, priority and validity of the Banks'
security interests in the Concentrate Sales Agreements and the
Proceeds shall not in any manner be affected, interrupted, waived or
released by the present and absolute assignment by FI of the
Concentrate Sales Agreements and the Proceeds to the Trustee; provided
that upon the effectiveness of such absolute and present assignment of
the Concentrate Sales Agreements and the Proceeds to the Trustee, the
Banks shall be deemed without the necessity of any further action or
instrument to have automatically released their security interests in
the PT-RTZ CSA Interests in order to permit the Trustee to hold the
PT-RTZ CSA Interests for the benefit of PT-RTZ on the terms and
conditions contained in the Restated Trust Agreement.
(f) FI hereby assigns, sets over and transfers to RTZ
Lender on the terms and conditions set forth in the RTZ Loan
Agreement, effective as of the Closing, as security for the RTZ Loan
Indebtedness outstanding from time to time pursuant to the RTZ Loan
Agreement, a first priority security interest in the FIEC Interests;
provided that, without derogation from the foregoing, to the extent
that any FIEC Interest is created or comes into effect in accordance
with the Participation Agreement subsequent to the Closing, FI shall
be deemed to have automatically assigned, set over, transferred and
conveyed to RTZ Lender a further first priority security interest in
such subsequently created or arising FIEC Interest without the
necessity of any further act, document or instrument, with full force
and effect as if FI had assigned, set over, transferred and conveyed
to RTZ Lender (and the Banks had concurrently subordinated their
security interest pursuant to the Intercreditor Agreement in) such
FIEC Interests at such subsequent time and such FIEC Interests shall
be deemed to be subject to the RTZ Lender Lien. Each of FI and RTZ
Lender covenants and agrees with each other and the Trustee that, at
the request of the other or of the Trustee, it will execute such
further documents and do all such further acts as may reasonably be
required for the purpose of vesting the RTZ Lender Lien in the Trustee
for the benefit of RTZ Lender under the Restated Trust Agreement.
(g) Notwithstanding the present and absolute assignment of
interests in the Contract of Work, the Concentrate Sales Agreements
and the Proceeds to the Trustee pursuant to the Restated Trust
Agreement, FI and PT-RTZ and each other party hereto agree that the
Trustee shall not be obligated to perform or see to the performance or
enforce the performance of any obligations or duties under the
Contract of Work or the Concentrate Sales Agreements and shall not
have any liability whatsoever thereunder.
SECTION 4. Amendment of the Existing Trust Agreement;
Change of Security Agent for the Bank Security Agreements. (a)
Effective as of the Closing and after giving effect to the releases of
security interests, assignments and transfers on the Closing Date
provided for or described in Section 3, the Existing Trust Agreement
(including the exhibits and schedules thereto) shall be amended and
restated in the form attached hereto as Exhibit A. The provisions of
Section 4.01 of the Existing Trust Agreement relating to
indemnification of the Trustee shall survive the amendment and
restatement of the Existing Trust Agreement. All security interests
granted under the Existing Trust Agreement in assets or interests of
FI (the "Other Security") other than the Contract of Work, the
Concentrate Sales Agreements, the Proceeds and the FIEC Interests are
hereby transferred as of the Closing to the Bank Security Agreement
and each of the Transaction Parties acknowledges and agrees that the
continuity, perfection, priority and validity of the Banks' security
interests in the Other Security shall not in any manner be affected,
interrupted, waived or released (i) by the transfer of such security
interests from the Existing Trust Agreement to the Bank Security
Agreement or (ii) as a result of Chase (in its capacity as Security
Agent for the Banks under the Bank Security Agreement) becoming the
successor to First Trust of New York, National Association (in its
capacity as Trustee under the Existing Trust Agreement), as the
secured party with respect to the Other Security.
(b) Chase has been appointed by the Banks as of the Closing
as Security Agent for the Banks under the Bank Security Agreement, the
Bank Surat Kuasa and the Bank Fiduciary Assignment of Accounts
Receivable and as successor Security Agent (in replacement of First
Trust of New York, National Association, acting as Trustee under the
Existing Trust Agreement) under the Amended Fiduciary Transfer and the
Amended Fiduciary Power. First Trust of New York, National
Association, has been appointed by the Banks and RTZ-IIL as of the
Closing as Security Agent for the Banks and RTZ-IIL under the
Fiduciary Assignment of Accounts Receivable with respect to accounts
receivable in relation to the Concentrate Sales Agreements and the
Proceeds. Chase has been appointed by the Banks and RTZ-IIL as of the
Closing as JAA Security Agent for the Banks and RTZ-IIL under the JAA
Fiduciary Transfer and the JAA Fiduciary Power with respect to Joint
Account Assets. First Trust of New York, National Association, shall
continue to be entitled to all the fees, immunities, indemnities and
protections provided to it as Security Agent under the FI Security
Documents, including under the CDF and the FI Credit Agreement
(including without limitation Article VIII and Section 10.4 thereof)
as well as under the FI Security Documents, for the period up to the
Closing Date, including in respect of any actions taken or omitted to
be taken by it while acting as Security Agent under the FI Security
Documents.
SECTION 5. Representations and Warranties. As of the
Closing Date (i) each Transaction Party represents and warrants with
respect to itself only (except for the Bank Agents, who act for
themselves both in their individual capacities and as agents on behalf
of the Banks), (ii) FCX and FI jointly and severally represent and
warrant with respect to FI, (iii) RTZ and PT-RTZ represent and warrant
jointly and severally with respect to PT-RTZ and (iv) RTZ and RTZ
Lender represent and warrant jointly and severally with respect to RTZ
Lender, in each case to each other Transaction Party as follows:
(a) Qualified, in the case of PT-RTZ, as to its status as a
company in formation, the representations and warranties by such
Transaction Party set forth in each Transaction Document entered into
on the Closing Date are true and correct in all material respects as
if made on and as of the Closing Date. Such Transaction Party is in
compliance with all the terms and conditions of each Transaction
Document to which it is a party (except, in the case of FI, for
satisfaction of the conditions set forth in Section 6(b) of the CDF),
and no default or event of default has occurred or is continuing with
respect to it under any Transaction Document to which it is a party.
(b) Qualified, in the case of PT-RTZ, as to its status as a
company in formation, such Transaction Party has the corporate power
and authority to enter into and perform this Agreement and each
Transaction Document to which it is a party. Qualified, in the case
of PT-RTZ, as to its status as a company in formation, the execution,
delivery and performance of this Agreement and each Transaction
Document to which it is a party (i) have been duly authorized by such
Transaction Party and each such Transaction Document constitutes the
legal, valid and binding obligation of such Transaction Party,
enforceable against such Transaction Party in accordance with its
terms (subject, as to the enforcement of remedies against it, to
applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting creditors' rights against it generally in
connection with its bankruptcy, reorganization or insolvency or a
moratorium or similar event relating to it), (ii) will not violate
(A) the Certificate of Incorporation, the Certificate of
Domestication, or the Articles of Association, as applicable, or the
By-laws of such Transaction Party or any other of its constituent
documents, (B) any Governmental Rule (as defined in the CDF) binding
upon such Transaction Party (except, in the case of FI, for any
Governmental Rule required to be satisfied in order to satisfy the
conditions set forth in Section 6(b) of the CDF) or (C) any provision
of any indenture, agreement or other instrument to which such
Transaction Party is a party or by which it or any of its properties
or assets are or may be bound, (iii) will not be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of
time or both) a default under any such indenture, agreement or other
instrument referred to in clause (ii)(C) above and (iv) will not
result in the creation or imposition of any Lien upon the assets of
such Transaction Party, except (i) in the case of FI, the liens of the
Restated Trust Agreement, the Surat Kuasa and the Fiduciary Assignment
of Account Receivables, the Bank Security Documents and the RTZ Loan
Agreement.
(c) The Bank Agents represent and warrant that each Bank
has (i) authorized the Bank Agents, acting on behalf of such Bank and
the other Banks, to enter into and perform the Early Closing
Agreement, the Intercreditor Agreement, the Restated Trust Agreement,
the Side Letter and this Agreement (including the subordination of the
Bank FIEC Lien to the RTZ Lender Lien on the terms of the
Intercreditor Agreement), (ii) authorized the Trustee to enter into
this Agreement, the Restated Trust Agreement, the Operator Replacement
Agreement, the Surat Kuasa, the Side Letter and the Fiduciary
Assignment of Accounts Receivable, the RTZ Release and the
transactions contemplated thereby and to release all the security
interests of the Banks in the PT-RTZ Joint Venture Interests upon the
Closing, pursuant to this Agreement, in order to permit their
unencumbered assignment to PT-RTZ pursuant to the Participation
Agreement, this Agreement, and the PT-RTZ COW Assignment, (iii)
authorized the Security Agent to enter into and perform the Bank
Security Documents for the benefit of such Bank and the other Banks,
(iv) authorized the JAA Security Agent to enter into and perform the
JAA Fiduciary Transfer, the JAA Fiduciary Power and the Side Letter
for the benefit of the Banks and RTZ-IIL, (v) consented to RTZ Lender
and the Trustee (acting on behalf of RTZ Lender) taking Remedial
Actions against the RTZ Lender Collateral as provided in the RTZ Loan
Agreement and the Restated Trust Agreement, and (vi) consented to FI
entering into and performing the transactions contemplated by the
Transaction Documents to which it is a party, including the entry into
and performance of the Participation Agreement, the incurrence of the
RTZ Loan Indebtedness and FI's granting the RTZ Lender Lien to RTZ
Lender on the terms of the Restated Trust Agreement; provided,
however, that the foregoing shall not be deemed vis-a-vis any of the
Freeport Entities in any manner to constitute a modification or waiver
of the full and timely performance of any of the obligations of any of
the Freeport Entities under the Amended Loan Documents in accordance
with the terms thereof.
(d) Each of PT-RTZ, RTZ and RTZ Lender acknowledges that it
has received a copy of each of the CDF and the FI Credit Agreement
(including the exhibits thereto) and hereby (i) consents to FI
entering into and performing the Amended Loan Documents, including the
grant by FI of the Bank Lien for the benefit of the Banks, (ii)
acknowledges the restrictions on FI under Sections 5.3 and 10.17 of
each of the CDF and the FI Credit Agreement with respect to certain
dealings with PT-RTZ, RTZ, RTZ-IIL and RTZ Lender, (iii) consents to
the assignment by FI to the Security Agent of all FI's right, title
and interest in and to the Participation Agreement, the Privatization
Agreements and the RTZ Loan Agreement; provided, however, that none of
the foregoing in this Section 5(d) shall be deemed to waive in any
manner vis-a-vis FI the full and timely performance by FI of the
obligations of FI under the Participation Agreement, the Restated
Trust Agreement or the RTZ Loan Agreement.
(e) FI represents and warrants with respect to itself that
it has authorized the Trustee to enter into this Agreement, the
Restated Trust Agreement, the Operator Replacement Agreement, the
Surat Kuasa, the Side Letter, the RTZ Release and the Fiduciary
Assignment of Accounts Receivable and the transactions contemplated
thereby and that (other than the Banks and the Trustee) there is no
other beneficiary under the Existing Trust Agreement or other Person
whose authorization or consent is required for the Trustee to enter
into the foregoing agreements and the transactions contemplated
thereby.
SECTION 6. Conditions to Closing. The following conditions
precedent have been satisfied prior to or simultaneously with the
execution of this Agreement:
(a) Consent of the Minister of Mines of the Government of
Indonesia, substantially in the form of Exhibit I, has been
obtained and is in full force and effect.
(b) All other consents, approvals and agreements necessary
or advisable in the judgment of each Transaction Party and its
counsel for consummation of the Closing have been obtained and
are in full force and effect and there is not any action, suit,
litigation or other proceeding at law or in equity or by or
before any court of any Governmental Agency pending which, in the
judgment of such Transaction Party or its counsel, is likely to
restrain, prevent or impose materially adverse conditions upon
the Closing or the transactions contemplated by the Transaction
Documents or the full and timely performance by the Transaction
Parties of their obligations under the Transaction Documents.
(c) No judgment, order or decree is outstanding, and no
action has been taken by any Governmental Agency, that, in the
reasonable judgment of a Transaction Party or its counsel, has or
is likely to have the effect of restraining, preventing or
imposing materially adverse conditions upon the transactions
contemplated by the Transaction Documents, or the full and timely
performance by the Transaction Parties of their obligations under
the Transaction Documents.
(d) The Trustee has received opinions to the effect that it
does not have to qualify to do business in Louisiana or Indonesia
by virtue of the Restated Trust Agreement or the activities
contemplated thereby.
(e) Copies of this Agreement which, when taken together,
bear the signatures of all the parties hereto have been received
by each Transaction Party.
(f) The Restated Trust Agreement has been executed by all
the parties thereto (including the Representative (as defined in
the Restated Trust Agreement) under each Financing Annex in
effect on the Closing Date) and is in full force and effect, and
a copy of such executed Restated Trust Agreement has been
delivered to each party thereto.
(g) All other Transaction Documents shall be or have been
executed and delivered by the relevant Transaction Parties and
shall be or are in full force and effect (with all conditions to
their effectiveness duly satisfied or waived).
(h) All UCC filings and other filings and registrations
required to perfect and accomplish the assignments and security
interests contemplated as of the Closing Date under the Restated
Trust Agreement and the Bank Security Documents have been made
and are in full force and effect.
SECTION 7. Amendment; Waiver. This Agreement may not be
amended nor any provision hereof waived except pursuant to a writing
signed by each Transaction Party or as otherwise provided herein. Any
amendment or waiver of the provisions hereof pursuant to such a
writing shall be binding upon each party hereto.
SECTION 8. Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall constitute an original, but
all of which when taken together shall constitute but one instrument.
SECTION 9. APPLICABLE LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 10. Expenses. FI shall pay all out-of-pocket
expenses incurred by the Bank Agents and the JAA Security Agent in
connection with the preparation, review and negotiation of the
Transaction Documents and with the Closing, including, but not limited
to, the reasonable fees and disbursements of Cravath, Swaine & Moore,
special counsel for the Bank Agents, and Mochtar, Karuwin & Komar,
special Indonesian counsel to the Bank Agents and the JAA Security
Agent. The out-of-pocket expenses incurred by the Trustee, the
Depositary and their counsel in connection with the preparation,
review and negotiation of the Transaction Documents and the Closing
shall be paid by FI and PT-RTZ based on the allocation thereof
provided in the Restated Trust Agreement; provided that PT-RTZ shall
not be responsible for and shall have no liability for any costs
(including, without limitation, notary fees and taxes) incurred in
connection with the notarization of any Indonesian Notarized Documents
which are Bank Security Documents. Each other Transaction Party shall
be responsible for all its own expenses incurred in connection with
the preparation, review and negotiation of the Transaction Documents
and with the Closing.
SECTION 11. References; Headings. Unless otherwise stated,
Section, Recital, Exhibit and Schedule references made herein are to
Sections, Recitals, Exhibits and Schedules, as the case may be, of
this Agreement. The headings of this Agreement are for reference only
and shall not limit or otherwise affect the meaning hereof.
SECTION 12. Construction. This Agreement shall be deemed
jointly drafted by all the Transaction Parties equally and shall not
be specially construed against any Transaction Party based on any
claim that such Transaction Party or its counsel was the draftsman of
this Agreement.
SECTION 13. Submission to Jurisdiction; Waiver of Jury
Trial; Commercial Obligations and Immunity. Each Transaction Party
hereby submits to the exclusive jurisdiction of the United States
District Court for the Southern District of New York and of any New
York State court sitting in Manhattan for the purposes of all suits,
actions or proceedings arising out of or relating to this Agreement or
the transactions contemplated hereby. Each Transaction Party
irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding brought in such a court
and any claim that any such suit, action or proceeding brought in such
a court has been brought in an inconvenient forum. EACH TRANSACTION
PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. To the extent that any Transaction Party may now
or hereafter be entitled, in any jurisdiction in which judicial
proceedings may at any time be commenced with respect to this
Agreement, to claim for itself or its property, assets or revenues any
immunity (whether by reason of sovereignty or otherwise) from suit,
jurisdiction of any court, attachment prior to judgment, setoff,
execution of a judgment or from any other legal process or remedy, and
to the extent that there may be attributed to any Transaction Party
such an immunity (whether or not claimed), such Transaction Party
hereby irrevocably agrees as to itself not to claim and hereby
irrevocably waives such immunity.
SECTION 14. Survival of Representations and Warranties.
The provisions of Section 5 of this Agreement shall survive the
consummation of the Closing referred to herein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers or agents
as of the date first above written.
P.T. FREEPORT INDONESIA COMPANY,
by /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: Vice President and Treasuer
THE RTZ CORPORATION PLC,
by /s/ Sandra Walker
-----------------------------------
Name: Sandra Walker
Title: Attorney-In-Fact
P.T. RTZ-CRA INDONESIA,
by /s/ Sandra Walker
-----------------------------------
Name: Sandra Walker
Title: Attorney-In-Fact
In anticipation of the completion of formation of P.T. RTZ-CRA
INDONESIA under the laws of the Republic of Indonesia, this Agreement
is also executed by RTZ Jersey Investments One Limited and RTZ Jersey
Nominees Limited, jointly and severally, the founding shareholders.
RTZ JERSEY INVESTMENTS ONE LIMITED,
by /s/Sandra Walker
-----------------------------------
Name: Sandra Walker
Title: Attorney-In-Fact
RTZ JERSEY NOMINEES LIMITED,
by /s/ Sandra Walker
------------------------------------
Name: Sandra Walker
Title: Attorney-In-Fact
RTZ INDONESIAN FINANCE LIMITED,
by /s/ Sandra Walker
------------------------------------
Name: Sandra Walker
Title: Attorney-In-Fact
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as
Trustee under the Trust Agreement,
by /s/ Ward A. Spooner
-----------------------------------
Name: Ward A. Spooner
Title: Vice President Corporate Trust
THE CHASE MANHATTAN BANK (formerly Chemical Bank),
not in its individual capacity, but solely as
Administrative Agent under the FI Credit Agreement
and the CDF, as Security Agent under the Bank
Security Documents and as JAA Security Agent under
the JAA Fiduciary Transfer and the JAA Fiduciary
Power,
by /s/ James H. Ramage
----------------------------------
Name: James H. Ramage
Title: Vice President
Global Natural Resources
THE CHASE MANHATTAN BANK (as successor to The
Chase Manhattan Bank (National Association)),
not in its individual capacity, but solely as
Documentary Agent under the FI Credit Agreement
and the CDF and as Depositary under the Trust
Agreement,
by /s/ James H. Ramage
-----------------------------------
Name: James H. Ramage
Title: Vice President
Global Natural Resources