Exhibit 4.11
EXECUTION COPY
FIRST AMENDMENT dated as of February 2, 1994 (this
"Amendment"), to the Credit Agreement dated as of
October 27, 1989, as amended through June 1, 1993 (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 INC., a Delaware corporation
("FTX"), FREEPORT-McMoRan COPPER & GOLD INC., a
Delaware corporation ("FCX"), the undersigned banks
(collectively, the "Banks"), MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, a New York banking corporation
(for purposes of Article VIII thereof only), as trustee
for the Banks under the FI Trust Agreement and, in such
capacity, as security agent for the Banks under the FI
Security Documents (in such capacity, the "FI Trustee")
and CHEMICAL BANK, a New York banking corporation, as
agent for the Banks (in such capacity, the "Agent").
Capitalized terms used herein and not otherwise defined
herein shall have the meanings given such terms in the
Credit Agreement.
WHEREAS, FI, FTX, FCX, the Required Banks, the FI Trustee and the
Agent have agreed that certain provisions of the Credit Agreement be
amended in order that FRP may issue up to $150,000,000 aggregate principal
amount of its Senior Subordinated Notes due 2004 (the "Securities"), as
more particularly described in the Term Sheet relating to the Securities
(the "Term Sheet") attached hereto as Exhibit A, which FRP has provided to
the Banks.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, FI, FTX, FCX, the FI
Trustee, the Agent and the Required Banks hereby agree, on the terms and
subject to the conditions set forth herein, as follows:
SECTION 1. Approval of Form of the Securities. The Required
Banks hereby approve the form of subordination provisions of the Securities
attached hereto as Exhibit B and the other terms and conditions of the
Securities as set forth in the Term Sheet and agree that FRP may, upon the
effectiveness of this Amendment, issue the Securities with subordination
provisions in the form of Exhibit B hereto and otherwise on the terms set
forth in Exhibit A hereto.
SECTION 2. Amendments to the Credit Agreement; Consent. (a)
Section 1.1 of the Credit Agreement is hereby amended by deleting clause
(ii) in the definition of "Equity Payment" and substituting a new clause
(ii) as follows:
"(ii) open market purchases by the Company or any Restricted Subsidiary
of Depository Units of FRP or purchases or acquisitions, directly or
indirectly, of any FRP Notes"
(b) Section 1.1 of the Credit Agreement is hereby amended by
adding the following definition:
"'FRP Notes' has the meaning assigned to such term in Section
5.2(g)(i)(G)."
(c) The Banks hereby consent to the amendment of Section 2.2 of
the FTX Credit Agreement by adding a new clause (VI) thereto as follows and
renumbering the existing clause "(VI)" as "(VII)":
", (VI) FTX, FRP or any Restricted Subsidiary shall determine to,
or shall be required to make, any optional or mandatory
prepayment, acquisition, repurchase or defeasance of the FRP
Notes"
and to the amendment of Section 2.4 of the FTX Credit Agreement by changing
the reference to "clause (VI)" of Section 2.2 of the FTX Credit Agreement
to "clause (VII)" thereof.
(d) The Banks hereby consent to the amendment of Section 2.6 of
the FTX Credit Agreement by the addition of the following at the end
thereof:
"If a Borrowing Base redetermination shall occur pursuant to
clause (VI) of Section 2.2 because a 'Change in Control' (as
defined in the indenture for the FRP Notes) has occurred which
would require any offer to repurchase or redeem the FRP Notes or
would permit the holders of the FRP Notes to require the FRP Notes
to be prepaid, redeemed or repurchased, FTX and FRP acknowledge
and agree that in making such redetermination of the Borrowing
Base, the Banks may take into account such factors relating to the
Change of Control as they shall, in their sole and unreviewable
discretion, determine to be relevant or appropriate, including
without limitation any perceived or prior lack of creditworthiness
of the entity to result after such Change in Control, discounts to
the value, timing or liklihood of realization of assets of FRP,
FTX and their Subsidiaries or any other risks, whether or not
similar to the foregoing. FTX and FRP irrevocably and
unconditionally agree that they shall not contest or dispute any
such redetermination of the Borrowing Base under any circumstance
or claim whatsoever."
(e) Section 5.1(a)(5) is hereby amended by the addition of the
following at the end thereof;
", and 15 days prior written notice of any event referred to in
Section 2.2(VI) of the FTX Credit Agreement, specifying the event
in question in reasonable detail"
(f) Section 5.2(c) of the Credit Agreement is hereby amended by
adding a new sentence to the end thereof as follows:
"Notwithstanding the foregoing, FTX and FRP shall not permit any
Restricted Subsidiary which is not FRP or a Subsidiary of FRP as
of January 1, 1994 (a "Non-FRP Subsidiary"), to merge or liquidate
into or consolidate with FRP or any Subsidiary of FRP or to sell,
lease, transfer or otherwise dispose of all or any significant
percentage of the assets of any such Non-FRP Subsidiary to FRP or
any of FRP's Subsidiaries nor shall FTX or FRP otherwise permit
any Non-FRP Subsidiary to become a Subsidiary of FRP; provided
that FRP and its Subsidiaries may create or acquire new
Subsidiaries to the extent otherwise permitted hereby so long as
such Subsidiaries were not previously Non-FRP Subsidiaries."
(g) Section 5.2(g)(i) of the Credit Agreement is hereby amended
by deleting the word "and" at the end of clause (E), by substituting ";
and" for the period at the end of clause (F) and by adding the following
new clause (G) as follows:
"(G) $150,000,000 of aggregate principal amount of FRP's Senior
Subordinated Notes due 2004 (the 'FRP Notes')."
(h) Section 5.2 of the Credit Agreement is hereby amended by the
addition of a new paragraph (t) as follows:
"(t) FRP Notes. The FRP Obligations (as defined in Section 9.1)
shall not cease to be at all times 'Senior Debt' as such term is
used in the indenture for the FRP Notes and that FRP will not
amend, waive or modify any provision of such indenture or of the
FRP Notes without the prior written consent of the Required Banks.
Without limitation of the foregoing, none of FTX, FRP or any
Restricted Subsidiary shall, directly or indirectly, make any
optional or mandatory prepayment, acquisition, repurchase or
defeasance of the FRP Notes if after any Borrowing Base
redetermination pursuant to Section 2.2(VI) of the FTX Credit
Agreement, the Company would be out of compliance with Sections
3.2 and/or 5.2(b) after giving effect to such prepayment,
acquisition, repurchase or defeasance."
(i) Section 5.3 of the Credit Agreement is hereby amended by
adding the following to the end of the first sentence thereof:
", including the provisions of Section 5.2(r) and (t)."
SECTION 3. Conditions to Effectiveness. This Amendment shall
become effective on the date of receipt (the "Effective Date") by the Agent
of executed counterparts of this Amendment which, when taken together, bear
the signatures of FI, FTX, FCX, the FI Trustee, the Agent and the Required
Banks.
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. Sections 1 and 2 hereof constitute a
modification and amendment of the Credit Agreement effective as of the
Effective Date. Except as, and until, expressly waived or modified by such
Sections 1 and 2 hereof as of the Effective Date, the Credit Agreement
shall continue in full force and effect in accordance with the provisions
thereof as in effect immediately 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, the FI Trustee and the Agent 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 herein.
SECTION 6. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Expenses. FTX shall pay all out-of-pocket expenses
incurred by the Agent 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 Agent.
SECTION 8. 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
___________________________
Name:
Title:
FREEPORT-McMoRan INC.,
by
____________________________
Name:
Title:
FREEPORT-McMoRan COPPER & GOLD
INC.,
by
___________________________
Name:
Title:
CHEMICAL BANK, individually and
as Agent,
by
____________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK (for purposes of
Article VIII only), as FI
Trustee,
by
____________________________
Name:
Title:
ABN AMRO BANK, N.V.,
by
____________________________
Name:
Title:
____________________________
Name:
Title:
ARAB BANKING CORPORATION,
(B.S.C.),
by
_____________________________
Name:
Title:
THE BANK OF NOVA SCOTIA,
by
_____________________________
Name:
Title:
BANQUE PARIBAS,
by
_____________________________
Name:
Title:
BARCLAYS BANK PLC,
by
_____________________________
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.,
by
_____________________________
Name:
Title:
CHRISTIANA BANK,
by
_____________________________
Name:
Title:
_____________________________
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
by
_____________________________
Name:
Title:
by
_____________________________
Name:
Title:
DEUTSCHE BANK AG, New York
Branch and/or Cayman Islands
Branch,
by
_____________________________
Name:
Title:
_____________________________
Name:
Title:
FIRST NATIONAL BANK OF
COMMERCE,
by
_____________________________
Name:
Title:
THE FUJI BANK, LIMITED,
by
_____________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LTD., New York Branch,
by
_____________________________
Name:
Title:
LTCB TRUST COMPANY,
by
_____________________________
Name:
Title:
MELLON BANK, N.A.,
by
_____________________________
Name:
Title:
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED, New York
Branch,
by
_____________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
by
_____________________________
Name:
Title:
NATIONAL WESTMINSTER BANK PLC,
by
_____________________________
Name:
Title:
NBD BANK, N.A.,
by
_____________________________
Name:
Title:
N.M. ROTHSCHILD & SONS LIMITED,
by
_____________________________
Name:
Title:
P.T. BANK RAKYAT INDONESIA
(PERSERO),
by
_____________________________
Name:
Title:
by
_____________________________
Name:
Title:
BANK OF TOKYO TRUST COMPANY,
by
_____________________________
Name:
Title:
SOCIETE GENERALE,
by
_____________________________
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, New York and
Cayman Islands Branches,
by
_____________________________
Name:
Title:
_____________________________
Name:
Title:
YASUDA TRUST AND BANKING
COMPANY, LIMITED,
by
_____________________________
Name:
Title: