Exhibit 4.10
EXECUTION COPY
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P.T. FREEPORT INDONESIA COMPANY
_______________________
$550,000,000
AMENDED CREDIT AGREEMENT
Dated as of June 1, 1993
with
CERTAIN BANKS,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
(for purposes of Article VIII only),
as FI Trustee
and
CHEMICAL BANK,
as Agent
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TABLE OF CONTENTS
Page
Parties and Recitals ................................ 1
ARTICLE I
Definitions
Section 1.1. Definitions .......................... 1
Section 1.2. Accounting Terms ..................... 25
Section 1.3. Section, Article, Exhibit and
Schedule References ................ 26
ARTICLE II
[Intentionally left blank]
ARTICLE III
The Loans
Section 3.1. [Intentionally left blank] ........... 26
Section 3.2. Revolving Credit Facility ............ 26
Section 3.3. Loans ................................ 26
Section 3.4. Notice of Loans ...................... 27
Section 3.5. Promissory Notes ..................... 28
Section 3.6. Interest on Loans .................... 29
Section 3.7. Fees ................................. 29
Section 3.8. Maturity and Reduction of
Commitments ........................ 30
Section 3.9. Interest on Overdue Amounts;
Alternative Rate of Interest ....... 31
Section 3.10. Prepayment of Loans .................. 33
Section 3.11. Continuation and Conversion of
Loans ............................. 34
Section 3.12. Reserve Requirements; Change in
Circumstances ...................... 36
Section 3.13. Change in Legality ................... 40
Section 3.14. Indemnity ............................ 41
Section 3.15. Pro Rata Treatment ................... 42
Section 3.16. Sharing of Setoffs ................... 42
Section 3.17. Payments ............................. 43
Section 3.18. U.S. Taxes ........................... 44
Section 3.19. Indonesian Taxes ..................... 47
ARTICLE IV
Representations and Warranties
Section 4.1. Representations and Warranties........ 48
(a) Organization, Powers ............ 48
(b) Authorization ................... 49
(c) Governmental Approval ........... 49
(d) Enforceability .................. 50
(e) Financial Statements ............ 50
(f) Litigation; Compliance with
Laws; etc. .................... 51
(g) Title, etc. ..................... 52
(h) Federal Reserve Regulations;
Use of Proceeds ............... 53
(i) Taxes ........................... 54
(j) Employee Benefit Plans .......... 54
(k) Investment Company Act .......... 54
(l) Public Utility Holding Company
Act ........................... 55
(m) Subsidiaries .................... 55
(n) Assigned Agreements ............. 55
(o) FI Security Documents ........... 55
(p) No Material Misstatements ....... 55
ARTICLE V
Covenants
Section 5.1. Affirmative Covenants of FTX ......... 56
(a) Financial Statements, etc. ...... 56
(b) Taxes and Claims ................ 58
(c) Maintenance of Existence;
Conduct of Business ........... 58
(d) Compliance with Applicable Laws . 58
(e) Litigation ...................... 58
(f) ERISA ........................... 59
(g) [Intentionally left blank] ...... 59
(h) Security ........................ 59
(i) Insurance ....................... 60
(j) Access to Premises and Records .. 61
(k) FI Security Arrangements ........ 61
(l) Protection of Contract Rights ... 61
(m) Source of Interest .............. 62
(n) Further Assurances .............. 62
(o) Covenants regarding FI
and FCX ....................... 63
Section 5.2. Negative Covenants of FTX ............ 63
(a) Conflicting Agreements .......... 63
(b) Borrowing Base Limits ........... 63
(c) Consolidation or Merger;
Disposition of Assets and
Capital Stock ................. 63
(d) Liens ........................... 65
(e) Current Ratios .................. 67
(f) Fixed Charge Ratios ............. 68
(g) Debt ............................ 68
(h) [Intentionally left blank] ...... 71
(i) Convertible Debt Payments ....... 71
(j) Ownership of Subsidiaries ....... 71
(k) Fiscal Year ..................... 72
(l) Investments in Nonrestricted
Subsidiaries and Persons Not
Subsidiaries .................. 72
(m) Federal Reserve Regulations ..... 73
(n) Certain Debt Agreements ......... 73
(o) Investments in the Major
Subsidiaries .................. 73
(p) Investments in FCX .............. 74
(q) Equity Payments ................. 74
(r) Covenants Regarding IMC-Agrico .. 76
(s) Covenants Regarding ALatief-FI .. 77
Section 5.3. Additional Covenants of
FI and FCX ......................... 77
ARTICLE VI
Conditions of Credit
Section 6.1. Conditions Precedent to
Each Credit Event ................... 78
Section 6.2. Representations and Warranties with
Respect to Credit Events ............ 78
ARTICLE VII
Events of Default
Section 7.1. Events of Default .................... 79
ARTICLE VIII
The Agent and the FI Trustee
Section 8.1. The Agent and the FI Trustee ......... 83
ARTICLE IX
Guarantees
Section 9.1. Guarantee ............................ 88
ARTICLE X
Miscellaneous
Section 10.1. Notices ............................. 90
Section 10.2. Survival of Agreement ............... 90
Section 10.3. Successors and Assigns;
Participations; Purchasing Banks .. 91
Section 10.4. Expenses of the Banks; Indemnity .... 96
Section 10.5. Right of Setoff ..................... 98
Section 10.6. Applicable Law ...................... 98
Section 10.7. Waivers; Amendments ................. 98
Section 10.8. Severability ........................ 100
Section 10.9. Counterparts ........................ 100
Section 10.10. Headings ............................ 100
Section 10.11. Entire Agreement .................... 100
Section 10.12. Amendment Closing Date .............. 101
Section 10.13. Waiver of Jury Trial, etc. .......... 101
Section 10.14. Interest Rate Limitation ............ 101
Section 10.15. Jurisdiction; Consent to Service of
Process ........................... 101
Section 10.16. Confidentiality ...................... 102
Section 10.17. Judgment Currency..................... 103
Schedule I Subsidiaries
Schedule II-1 Applicable Margin for Loans Prior to and
Including the Conversion Date
Schedule II-2 Applicable Margin for Loans After the
Conversion Date
Schedule III Commitments of the Banks
Schedule 4.1(c) Governmental Approvals
Schedule 4.1(n) Assigned Agreements
Schedule 5.2(d) Deemed Leases
Exhibit A Terms of Subordination
Exhibit B Form of Borrowing Confirmation for Loans
Exhibit C Form of Promissory Note
Exhibit D Form of Commitment Transfer Supplement
CREDIT AGREEMENT entered into as of
October 27, 1989, as amended through June 1,
1993, 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
hereof 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 (as herein defined) (in
such capacity, the "FI Trustee") and CHEMICAL
BANK, a New York banking corporation, as
agent for the Banks (in such capacity, the
"Agent").
FI has requested the Banks to extend credit to FI
in order to enable it to borrow on a revolving credit basis
at any time and from time to time prior to the Maturity Date
(as herein defined). The aggregate principal amount of all
revolving credit loans at any time outstanding hereunder
shall not exceed $550,000,000. The proceeds of such
borrowings are to be used for general corporate purposes,
including, without limitation, the financing of
acquisitions.
The Banks are willing to make loans to FI upon the
terms and subject to the conditions hereinafter set forth,
including the guarantee by FTX and FCX (the "Guarantors") of
the loans to FI.
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants herein contained, the parties
hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. As used in this Agreement,
the following terms have the meanings indicated (any
term defined in this Article I or elsewhere in this Agreement
in the singular and used in this Agreement in the
plural shall include the plural, and vice versa):
"Adjusted CD Rate" means, with respect to any CD
Rate Loan for any Interest Period, an interest rate per
annum (rounded upwards, if not already a whole multiple of
1/100 of 1%, to the next higher 1/100 of 1%) equal to the
sum of (a) a rate per annum equal to the product of (i) the
Fixed CD Rate in effect for such Interest Period and
(ii) Statutory Reserves, plus (b) the Assessment Rate. For
purposes hereof, the term "Fixed CD Rate" shall mean the
rate of interest determined by the Agent to be the
arithmetic average (rounded upwards, if not already a whole
multiple of 1/100 of 1%, to the next higher 1/100 of 1%) of
the respective rates per annum notified to the Agent by the
Reference Banks as the prevailing rate per annum bid at or
about 10:00 a.m., New York City time, on the first Business
Day of the Interest Period applicable to such CD Rate Loan
by three New York City negotiable certificate of deposit
dealers of recognized standing selected by each such
Reference Bank for the purchase at face value from such
Reference Bank of negotiable certificates of deposit of
major United States money center banks in a principal amount
approximately equal to such Reference Bank's portion of such
CD Rate Loan and with a maturity comparable to such Interest
Period.
"ALatief" means P.T. ALatief Nusakarya
Corporation, an Indonesian limited liability company.
"ALatief-FI" means the joint venture company to be
organized under the laws of Indonesia by FI and ALatief
pursuant to the ALatief-FI Joint Venture Agreement.
"ALatief-FI Joint Venture Agreement" means the
Joint Venture Agreement made and entered into on March 11,
1993, between FI and ALatief, as such agreement may be
amended as permitted by Section 5.2(s)(ii) and in effect
from time to time.
"ALatief-FI Transfer" means the transfer by FI of
the non-mining infrastructure facilities, as described in
the ALatief-FI Joint Venture Agreement, to ALatief-FI.
"Alternate Base Rate" means for any day, a rate
per annum (rounded upwards, if not already a whole multiple
of 1/100 of 1%, to the next higher 1/100 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day,
(b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect for such day
plus 1/2 of 1%. For purposes hereof, the term "Prime Rate"
shall mean the rate of interest per annum announced by
Chemical Bank from time to time as its prime rate in effect
at its principal office in the City of New York; each change
in the Prime Rate shall be effective on the date such change
is publicly announced as being effective. "Base CD Rate"
means the sum of (x) the product of (i) the Three-Month
Secondary CD Rate and (ii) Statutory Reserves and (y) the
Assessment Rate. "Three-Month Secondary CD Rate" shall
mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of
New York (which rate will, under the current practices of
the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or,
if such rate shall not be so reported on such day or such
next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of
major money center banks in New York City received at
approximately 10:00 a.m., New York City time, on such day
(or, if such day shall not be a Business Day, on the next
preceding Business Day) by Chemical Bank from three New York
City negotiable certificate of deposit dealers of recognized
standing selected by it. "Federal Funds Effective Rate"
shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for the day of such transactions received
by Chemical Bank from three Federal funds brokers of
recognized standing selected by it. If for any reason
Chemical Bank shall have determined (which determination
shall be conclusive absent manifest error) that it is unable
to ascertain the Base CD Rate or the Federal Funds Effective
Rate or both for any reason, including the inability or
failure of Chemical Bank to obtain sufficient quotations in
accordance with the terms thereof, the Alternate Base Rate
shall be determined without regard to clause (b) or (c), or
both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate, respectively.
"Amendment Agreement" means the Second Amendment
dated as of June 1, 1993, to the Credit Agreement dated as
of October 27, 1989, as previously amended by the Amendment
thereto dated as of December 20, 1991, among FI, the
Guarantors, certain banks, the FI Trustee, the Agent, The
Fuji Bank, Limited and Morgan Guaranty Trust Company of New
York, as outgoing co-agents, and Morgan Guaranty Trust
Company of New York, as outgoing agent for the Banks.
"Amendment Closing Date" has the meaning assigned
to such term in Section 2(b) of the Amendment Agreement.
"Applicable CD Rate" means on a per annum basis,
in respect of any Loan, for each day during the Interest
Period for such Loan, the sum of (i) the Adjusted CD Rate as
determined by the Agent plus (ii) the Applicable Margin.
"Applicable LIBO Rate" means on a per annum basis,
in respect of any Loan, for each day during the Interest
Period for such Loan, the sum of (i) the LIBO Rate as
determined by the Agent plus (ii) the Applicable Margin.
"Applicable Margin" means, during each period set
forth in Section 3.6(d), the rate per annum set forth
opposite the applicable condition on Schedule II hereto for
each type of Loan listed thereon.
"Applicable Percentage" of any Bank means the
percentage set opposite such Bank's name on Schedule III
hereto.
"Applicable Reference Rate" means on a per annum
basis in respect of any Reference Rate Loan, for any day,
the sum of the Alternate Base Rate, plus the Applicable
Margin.
"Assessment Rate" means with respect to each day
during an Interest Period, the net annual assessment rate
(rounded upwards, if not already a whole multiple of 1/100
of 1%, to the next highest whole multiple of 1/100 of 1%)
determined by the Agent to be payable to the Federal Deposit
Insurance Corporation or any successor ("FDIC") for FDIC's
insuring time deposits made in Dollars at offices of
Chemical Bank in the United States as of the day two
Business Days prior to the first day of such Interest
Period.
"Assigned Agreements" means the Contract of Work
and the Concentrate Sales Agreements.
"Assignment Agreement" means the Amended and
Restated Pledge and Assignment and General Assignment of
Accounts Receivable dated as of October 27, 1989, between FI
and the FI Trustee, as such agreement may be further amended
and in effect from time to time.
"Available Borrowing Base" has the meaning
assigned to such term in Article I of the FTX Credit
Agreement.
"Bank" means each bank signatory hereto and its
successors and permitted assigns under Section 10.3(d).
"Board" means the Board of Governors of the
Federal Reserve System of the United States.
"Borrowing Base" has the meaning assigned to such
term in Article I of the FTX Credit Agreement.
"Borrowing Base Bank" means each FTX Lender and,
until such time as the FM Lenders shall by their written
consent release all recourse under the FM Credit Agreement
and the related documents against FTX, each FM Lender.
"Borrowing Base Certificate" has the meaning
assigned to such term in Article I of the FTX Credit
Agreement.
"Borrowing Base Debt" has the meaning assigned to
such term in Article I of the FTX Credit Agreement.
"Borrowing Base Factors" has the meaning assigned
to such term in Section 2.1 of the FTX Credit Agreement.
"Borrowing Date" means, with respect to any Loan,
the date on which such Loan is disbursed.
"Business Day" means a day on which the Banks are
each open for business at their respective Domestic Offices;
provided that when the term "Business Day" is used with
respect to LIBO Rate Loans, such term shall mean a day on
which the Banks are each also open for business at their
respective LIBOR Offices.
"Capital Interest" has the meaning assigned to
such term in Section 4.01 of the IMC-Agrico Partnership
Agreement.
"Capitalized Lease Obligation" means the obligation
of any Person to pay rent or other amounts under a
lease of (or other agreement conveying the right to use)
real and/or personal property which obligation is, or in
accordance with GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting
Standards Board) is required to be, classified and accounted
for as a capital lease on a balance sheet of such Person
under GAAP, and for purposes of this Agreement the amount of
such obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Flow Ratio" means, for purposes of
Schedules II-1 and II-2 hereto, at the end of any fiscal
quarter, the cumulative sum, for the four consecutive fiscal
quarters ending with such quarter, of FTX's (a) Consolidated
Cash Flow, minus interest expense and capitalized interest
paid or accrued on Debt and Corporate Group Loans and minus
extraordinary or unusual nonrecurring cash items included in
Consolidated Cash Flow, divided by (b) the aggregate
principal amount of all Debt and Corporate Group Loans
outstanding at the end of such fiscal quarter.
"CD Rate Loan" means any Loan for which interest
is determined, in accordance with the provisions hereof, at
the Applicable CD Rate.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral Agent" means Chemical Bank in its
capacity as Collateral Agent for the Lenders (as defined in
the FTX Intercreditor Agreement) under the FTX
Intercreditor Agreement.
"Commitment" means, with respect to each Bank, the
Commitment of such Bank hereunder as set forth on Schedule
III hereto, as the same may be permanently terminated or
reduced from time to time pursuant to Section 3.8. The
Commitment of each Bank shall automatically and permanently
terminate on the Maturity Date.
"Commitment Fee" has the meaning assigned to such
term in Section 3.7(a).
"Commitment Period" means the period commencing
with and including the Original Execution Date and ending on
but not including the Maturity Date.
"Commitment Transfer Supplement" means a
Commitment Transfer Supplement, substantially in the form of
Exhibit D.
"Concentrate Sales Agreements" means all contracts
and agreements with respect to the sale or disposition of
ores or minerals produced by the mining, concentrating and
related operations conducted by FI pursuant to the Contract
of Work, as such agreements may be amended and in effect
from time to time.
"Consolidated Cash Flow" means, with respect to
any Person and for any fiscal quarter, the sum of
(a) consolidated net income after taxes (before deducting
minority interests in net income (loss) of consolidated
subsidiaries, but disregarding all extraordinary or unusual
noncash items in calculating such net income) of such Person
and such Person's subsidiaries for such quarter; plus
(b) consolidated interest paid or accrued on the Corporate
Group Loans and on Debt by such Person or subsidiaries
during such quarter and deducted in determining consolidated
net income; plus (c) depreciation, depletion and
amortization charges and deferred taxes deducted in
computing consolidated net income; provided that such
calculation will exclude items relating to Nonrestricted
Subsidiaries.
"Contract of Work" shall mean 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, as such agreement may be implemented,
supplemented or amended and in effect from time to time.
"Conversion Date" means June 28, 1996.
"Corporate Group Facility" means this Agreement
and the FTX Credit Agreement.
"Corporate Group Loan Exposure" means the sum of
Loan Exposure plus FTX Credit Agreement Loan Exposure.
"Corporate Group Loans" means the Loans made
hereunder and the FTX Credit Agreement Loans made under the
FTX Credit Agreement.
"Corporate Group Notes" means the Promissory Notes
and the FTX Agreement Notes.
"Credit Event" means the making of a Loan.
"Debt" means at any time (1) Indebtedness for
Borrowed Money, (2) the undischarged balance of any production
payment, (3) the unearned balance of any advance
payment received under any contract, and (4) debt created,
issued, Guaranteed, incurred or assumed for the deferred
(for 180 days or more) purchase price of property or services
purchased; excluding, however, accrued expenses and
accounts payable (other than for such deferred purchase
price and/or for borrowed money) incurred in the ordinary
course of business; provided that the same are not overdue
in a material amount or, if overdue, are being contested in
good faith and by appropriate proceedings and also excluding,
for purposes of Section 7.1(i), any obligation or
liability in respect of Debt (including the undischarged
balance of any production payment and the unearned balance
of any advance payment received under any contract) for the
repayment or satisfaction of which the recourse of the
creditor is limited to specified assets or properties (or
the proceeds of production therefrom) of FTX or any
Restricted Subsidiary.
"Deemed Lease" means an agreement characterized by
the parties thereto as a lease solely for income tax purposes
and as to which such parties have elected to have the
provisions of the former Section 168(f)(8) of the Internal
Revenue Code of 1954 apply.
"Default" means any event which upon the giving of
notice or lapse of time or both would become an Event of
Default.
"Dollars" or "$" means United States Dollars.
"Domestic Office" means, for any Bank, the Domestic Office set
forth for such Bank on the signature pages hereof, unless such Bank shall
designate a different Domestic Office by notice in writing to the Agent and
FTX.
"Equity Payment" means (i) any cash dividend on,
or purchase, redemption or other payment in respect of, the
capital stock of FTX (other than mandatory dividend payments
on the Preferred Stock as in effect on the Amendment Closing
Date), (ii) open market purchases by FTX of Depositary Units
of FRP and (iii) open market purchases by FTX of capital
stock of FCX.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business
(whether or not incorporated) which is a member of a group
of which FTX is a member and which is under common control
within the meaning of Section 414 of the Code.
"Event of Default" means any Event of Default
defined in Article VII.
"FCC" means Freeport Chemical Company, a Delaware
corporation.
"FCX" means Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation.
"FI" means P.T. Freeport Indonesia Company, a
limited liability company organized under the laws of
Indonesia and domesticated in Delaware.
"FI Borrowing Base" has the meaning assigned such
term in Section 2.1 of the FTX Credit Agreement.
"FI Free Cash" means the product of (i) the lesser
of (x) the then outstanding Borrowing Base Debt of FI and
(y) 95% of all amounts above $30,000,000 held by FI in cash
or unencumbered Permitted Investments, and (ii) 1.0 minus
the MS Factor of FI.
"FI Obligations" has the meaning assigned to such
term in Section 9.1.
"FI Product" means ores or minerals produced by
the FI Project or otherwise obtained from the Mining Area
(as defined in the Contract of Work) and any kinds of
products, including, without limitation, concentrates,
produced from such ores or minerals.
"FI Project" means the mining, concentrating and
related operations conducted or to be conducted by FI in
Irian Jaya, Indonesia, pursuant to the Contract of Work.
"FI Receivables Purchase Agreement" means any
agreement entered into by FI with respect to the sale by FI
of accounts receivable.
"FI Security Documents" means the FI Trust
Agreement, the Assignment Agreement, the Surat Kuasa, the
Fiduciary Transfer, the Fiduciary Assignment, the Fiduciary
Power and all Uniform Commercial Code financing statements
and their Indonesian equivalents required to be filed
hereunder or under the FI Security Documents.
"FI Trust Agreement" means the Trust Agreement
dated as of May 15, 1970, as amended through the Amendment
Closing Date, among FI, the Banks and the FI Trustee, as the
same may be amended and in effect from time to time.
"FI Trustee" means Morgan Guaranty Trust Company
of New York, or any successor trustee, as trustee for the
Banks pursuant to the FI Trust Agreement and, in such
capacity, as security agent for the Banks under the FI
Security Documents.
"Fiduciary Assignment" means the Fiduciary
Assignment of Accounts Receivable (the Penyerahan Hak Atas
Tagihan) dated December 30, 1991, as amended by the First
Amendment thereto dated the Amendment Closing Date, granted
by FI to the FI Trustee, as the same may be further amended
and in effect from time to time.
"Fiduciary Power" means the Power of Attorney to
Establish Fiduciary Transfer (Kuasa Untuk Memasang
Penyerahan Hak Milik Fidusia) dated December 30, 1991, as
amended by the First Amendment thereto dated the Amendment
Closing Date, granted by FI to the FI Trustee (the "Amended
Fiduciary Power"), as the same may be further amended and in
effect from time to time.
"Fiduciary Transfer" means the Fiduciary Transfer
of Assets (Penyerahan Hak Secara Fidusia) dated December 30,
1991, as amended by the First Amendment thereto dated the
Amendment Closing Date, granted by FI to the FI Trustee, as
the same may be further amended and in effect from time to
time.
"Financial Officer" of any corporation means the
principal financial officer, principal accounting officer,
treasurer, assistant treasurer or controller of such corporation.
"Fixed Charges" means, for any Person at the end
of any fiscal quarter, the cumulative sum, for the four
consecutive quarters ending with such quarter, of (a) the
aggregate principal amount of all Corporate Group Loans
required to be repaid pursuant to Section 3.8(b) of each of
this Agreement and the FTX Credit Agreement and all Debt
paid or payable by such Person and such Person's
Subsidiaries (other than Nonrestricted Subsidiaries) during
such quarters plus (b) all interest paid or payable on Debt
and Corporate Group Loans by such Person and such Person's
Subsidiaries (other than Nonrestricted Subsidiaries) during
such quarters; provided, however, that any principal amount
of Debt and any interest payable in one fiscal quarter and
paid in another shall not be twice included in Fixed
Charges; provided further, however, that any Corporate Group
Loans prepaid pursuant to Section 3.10(a) or Section 3.10(c)
of either this Agreement or the FTX Credit Agreement or
continued or converted pursuant to Section 3.11 of either
this Agreement or the FTX Credit Agreement and any other
Debt prepaid, continued, converted or refinanced pursuant to
similar provisions of agreements or instruments governing
such other Debt shall not be included as Fixed Charges if
such Debt would not otherwise have matured within three
months of such prepayment, continuation, conversion or
refinancing.
"Fixed Charge Ratio" means for any Person at the
end of any fiscal quarter, the quotient, for the four
consecutive quarters ending with such quarter, of
(a) Consolidated Cash Flow divided by (b) Fixed Charges.
"FM Agent" means Chemical Bank as agent for the FM
Lenders under the FM Credit Agreement.
"FM Corporation" means FM Properties Inc., a
Delaware corporation.
"FM Credit Agreement" means the Credit Agreement
dated as of June 11, 1992, among FM Properties, FTX, the FM
Lenders and the FM Agent, as the same may be amended and in
effect from time to time.
"FM Lenders" means the banks party to the FM
Credit Agreement.
"FM Properties" means FM Properties Operating Co.,
a Delaware general partnership whose partners are FTX and FM
Corporation.
"FM Properties Credit" has the meaning assigned to
such term in Section 2.1(iv) of the FTX Credit Agreement.
"FM Properties Indebtedness" means the obligations
of FM Properties under the FM Credit Agreement and up to
$125,000,000 principal amount of the obligations of FM
Properties (including Guarantees of obligations of
Nonrestricted Subsidiaries as to which FM Properties became
a guarantor) assumed in connection with the transfer by FTX
of certain oil, gas and real estate assets to FM Properties
as described in the Information Statement contained in the
Registration Statement filed by FM Corporation on Form 10
with the SEC for the registration of the common stock, par
value $.01 per share, and related preferred stock purchase
rights of FM Corporation under the Securities Exchange Act
of 1934, as such Form 10 was amended through June 9, 1992.
"FRP" means Freeport-McMoRan Resource Partners,
Limited Partnership, a Delaware limited partnership.
"FRP Borrowing Base" has the meaning assigned such
term in Section 2.1 of the FTX Credit Agreement.
"FRP GPCo" means the direct or indirect Wholly-Owned
Subsidiary of FTX which is the entity which has the
rights and obligations of FRP GPCo as defined in and
contemplated by the IMC-Agrico Contribution Agreement.
"FRP Partner" means the Wholly-Owned Restricted
Subsidiary, organized as a limited partnership, of which FRP
will own a majority limited partnership interest and which
has the rights and obligations of FRP Partner as defined in
and contemplated by the IMC-Agrico Contribution Agreement.
"FTX Agent" means Chemical Bank as agent for the
FTX Lenders under the FTX Credit Agreement.
"FTX Agreement Notes" means the promissory notes
of FTX issued to the FTX Lenders pursuant to the FTX Credit
Agreement.
"FTX Borrowing Base" has the meaning assigned to
such term in Section 2.1 of the FTX Credit Agreement.
"FTX Credit Agreement" means the Amended and
Restated Credit Agreement entered into as of May 15, 1991,
as amended and restated in its entirety as of June 1, 1993,
among FTX, FRP, the FTX Lenders and the FTX Agent, as the
same may be further amended and in effect from time to time.
"FTX Credit Agreement Loan" means any loan made by
the FTX Lenders pursuant to the FTX Credit Agreement.
"FTX Credit Agreement Loan Exposure" means the
aggregate amount of unpaid principal of all FTX Credit
Agreement Loans made by the FTX Lenders.
"FTX Credit Agreement Total Commitment" means
$800,000,000, the committed amount under the FTX Credit
Agreement, as the same may be permanently terminated or
reduced from time to time.
"FTX Credit Event" means the making of an FTX
Credit Agreement Loan.
"FTX Free Cash" means the lesser of (i) the then
outstanding Borrowing Base Debt of FTX and (ii) 75% of all
amounts above $50,000,000 held by FTX in cash or
unencumbered Permitted Investments.
"FTX Intercreditor Agreement" means the
Intercreditor Agreement entered into as of June 11, 1992, as
amended and restated in its entirety as of June 1, 1993,
among the Agent on behalf of the Banks, the FTX Agent on
behalf of the FTX Lenders, the FM Agent on behalf of the FM
Lenders, Hibernia National Bank, as agent for the Pel-Tex
Bank Lenders, the Burke Parties (as defined therein) and
Chemical Bank, as collateral agent, as such agreement may be
further amended and in effect from time to time.
"FTX Lenders" means the banks party to the FTX
Credit Agreement.
"FTX Pledge Agreement" means a pledge agreement in
the form of Exhibit A-1 to the FTX Intercreditor Agreement,
to be executed by FTX and delivered to the Collateral Agent
pursuant to Section 5.1(h), as such agreement may be amended
and in effect from time to time.
"FTX Security Agreement" means a security
agreement in the form of Exhibit B-1 to the FTX
Intercreditor Agreement, to be executed by FTX and delivered
to the Collateral Agent pursuant to Section 5.1(h), as such
agreement may be amended and in effect from time to time.
"FTX Subsidiary Pledge Agreement" means a pledge
agreement in the form of Exhibit A-2 to the FTX
Intercreditor Agreement, to be executed by a wholly-owned
Restricted Subsidiary of FTX and delivered to the Collateral
Agent pursuant to Section 5.1(h), as such agreement may be
amended and in effect from time to time.
"FTX Subsidiary Security Agreement" means a
security agreement in the form of Exhibit B-2 to the FTX
Intercreditor Agreement, to be executed by a wholly-owned
Restricted Subsidiary of FTX and delivered to the Collateral
Agent pursuant to Section 5.1(h), as such agreement may be
amended and in effect from time to time.
"GAAP" has the meaning assigned to such term in
Section 1.2.
"Governmental Authority" means any United States
or Indonesian Federal, state, local or foreign court or
governmental agency, authority, instrumentality or
regulatory body.
"Governmental Rule" means any statute, law,
treaty, rule, code, ordinance, regulation, permit,
certificate or order of any Governmental Authority or any
judgment, decree, injunction, writ, order or like action of
any court, arbitrator or other judicial or quasijudicial
tribunal.
"Guarantee" means, with respect to any Person, any
obligation, contingent or otherwise, of such Person guaranteeing
or having the economic effect of guaranteeing any
Debt or obligation of any other Person in any manner,
whether directly or indirectly, and including, without
limitation, any agreement to pay dividends or other distributions
upon the stock of such other Person, or any obligation
of such other Person, direct or indirect, (i) to
purchase (or advance or supply funds for the purchase of)
any security for the payment of such Debt, obligation,
dividend or distribution, (ii) to purchase property, securities
or services for the purpose of assuring the owner of
such Debt or obligation or the holder of such stock of the
payment of such Debt, obligation, dividend or distribution
including, without limitation, any take-or-pay contract or
agreement to buy a minimum amount or quantity of production
or to provide an operating subsidy which, in each case, is
utilized for a third party financing, or (iii) to maintain
working capital, equity capital or any other financial
statement condition of the primary obligor, so as to enable
the primary obligor to pay such Debt, obligation, dividend
or distribution; provided, however, that the term Guarantee
shall not include any endorsement for collection or deposit
in the ordinary course of business.
"Guarantor" has the meaning assigned to such term
in the Introduction.
"HLT" means a transaction which the Agent, on the
basis of any of (i) applicable law, (ii) the rules, regulations,
interpretations, guidelines, statements of policy,
published or unpublished, or directives of Federal or state
bank regulatory authorities and (iii) practices prevailing
in the market as to the interpretation or application of
items referred to in (i) or (ii) above, classifies as a
"highly leveraged transaction" or gives a similar or successor
classification.
"IMC" means IMC Fertilizer, Inc., a Delaware
corporation.
"IMC-Agrico" means a general partnership whose
partners will be FRP Partner, IMC Partner and IMC-Agrico MP,
or such other entity which will have the rights and
obligations of the Partnership as defined in and
contemplated by the IMC-Agrico Contribution Agreement.
"IMC-Agrico Contribution Agreement" means the
Contribution Agreement dated as of April 5, 1993, between
FRP and IMC, as amended and in effect from time to time as
permitted by Section 5.2(r).
"IMC-Agrico MP" means a corporation the equity
interest in which will be owned by the FRP Partner and the
IMC Partner, or such other entity (other than a direct or
indirect subsidiary of IMC-Agrico) that shall have the
rights and obligations of the Managing Partner as defined in
and contemplated by the IMC-Agrico Contribution Agreement.
"IMC-Agrico Parent Agreement" means the Parent
Agreement to be entered into by and among IMC, FRP, FTX and
IMC-Agrico, substantially in the form of Exhibit B to the
IMC-Agrico Contribution Agreement, as amended and in effect
from time to time as permitted by Section 5.2(r).
"IMC Partner" means a corporation that has the
rights and obligations of IMC GPCo as defined in and
contemplated by the IMC-Agrico Contribution Agreement.
"IMC-Agrico Partnership Agreement" means the
Partnership Agreement to be entered into by and among FRP
Partner, IMC Partner and IMC-Agrico MP, substantially in the
form of Exhibit A to the IMC-Agrico Contribution Agreement,
as amended and in effect from time to time as permitted by
Section 5.2(r).
"IMC-Agrico Transfer" means the transfer by FRP to
IMC-Agrico of certain assets related to the phosphate
chemicals business, as described in the IMC-Agrico
Contribution Agreement.
"Indebtedness for Borrowed Money" means, for any
Person, all Guarantees of such person plus all liabilities
of such Person, other than Corporate Group Loans and
Guarantees thereof, in respect of (a) money borrowed,
(b) notes, debentures, bonds or other obligations issued,
(c) obligations for deferred payment for property purchased
having an original maturity greater than one year after the
date of incurrence thereof and (d) Capitalized Lease
Obligations.
"Indocopper Shareholders Agreement" means the
Amended and Restated Shareholders Agreement dated as of
November 12, 1992, by and among P.T. Indocopper Investama
Corporation, FCX, certain individuals and P.T. Bakrie
Investindo.
"Indonesian Taxes" means all present and future
income, stamp and other taxes, levies, imposts, deductions,
charges, compulsory loans and withholdings whatsoever
imposed, assessed, levied or collected by Indonesia or any
political subdivision or taxing authority thereof or therein
or any association or organization of which Indonesia may be
a member (but excluding taxes or other similar governmental
charges, fees or assessments imposed upon the net income of
the Agent, the FI Trustee or any Bank which has its
principal office in Indonesia or a branch office in
Indonesia, unless the presence of such office is solely
attributable to the enforcement of any rights hereunder or
under any FI Security Document with respect to an Event of
Default), together with interest thereon and penalties,
fines and surcharges and other liabilities with respect
thereto, if any, on or in respect of this Agreement, the
Loans to FI, the FI Security Documents, the Assigned
Agreements or the Corporate Group Notes of FI, the
registration, recordation, notarization or other
formalization of any thereof, and any payments of principal,
interest, charges, fees or other amounts made on, under or
in respect of any thereof.
"Interest Payment Date" means (i) as to any
Reference Rate Loan, the next succeeding March 31, June 30,
September 30 or December 31 (subject to Section 3.17), or if
earlier, the Maturity Date, and (ii) as to any other Loan,
the last day of the Interest Period applicable to such Loan
(and, in the case of any Interest Period of more than three
months' or 90 days' duration, the date that would be the
last day of such Interest Period if such Interest Period
were of three months' or 90 days' duration) and the date of
any conversion or continuation of such Loan to a Loan of a
different type.
"Interest Period" means (i) as to any LIBO Rate
Loan, the period commencing on the date of such LIBO Rate
Loan and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day)
in the calendar month that is 1, 2, 3 or 6 months thereafter,
as FI may elect, (ii) as to any CD Rate Loan, a
period of 30, 60, 90 or 180 days' duration, as FI may elect,
commencing on the date of such CD Rate Loan and (iii) as to
any Reference Rate Loan, the period commencing on the date
of such Reference Rate Loan and ending on the earliest of
(x) the next succeeding March 31, June 30, September 30 or
December 31, (y) the Maturity Date and (z) the date such
Reference Rate Loan is converted to a Loan of another type
or repaid or prepaid as permitted hereby; provided, however,
that (1) if any Interest Period would end on a day that
shall not be a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, with
respect to LIBO Rate Loans only, such next succeeding
Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding
Business Day, (2) no Interest Period may be selected with
respect to a LIBO Rate Loan or a CD Rate Loan that would end
later than a Reduction Date occurring after the making of
such Loan if the aggregate outstanding principal amount of
the Corporate Group Loans (after giving effect to all
borrowings and payments of Corporate Group Loans made on the
date of such Loan) having Interest Periods extending beyond
such Reduction Date would otherwise exceed the aggregate
amount of the Commitments as reduced on such Reduction Date,
(3) no Interest Period with respect to any Loan shall end
later than the Maturity Date and (4) interest shall accrue
from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"KfW" means Kreditanstalt fur Wiederaufbau, a
corporation organized under the public law of the Federal
Republic of Germany.
"KfW Credit Agreement" means a credit agreement
between FI and KfW pursuant to terms approved in writing by
the FTX Agent, as amended and in effect from time to time.
"LIBO Rate" means, with respect to any LIBO Rate
Loan for any Interest Period, an interest rate per annum
(rounded upwards, if not already a whole multiple of 1/100
of 1%, to the next higher 1/100 of 1%) equal to the arithmetic
average of the respective rates per annum at which
dollar deposits approximately equal in principal amount to
such LIBO Rate Loan and for a maturity equal to the applicable
Interest Period are offered in immediately available
funds to the London branches of the Reference Banks in the
London Interbank Market for Eurodollars at approximately
11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBO Rate Loan" means any Loan for which interest
is determined, in accordance with the provisions hereof, at
the Applicable LIBO Rate.
"LIBOR Office" means, for any Bank, the LIBOR
Office set forth for such Bank on the signature pages hereof
or as otherwise notified in writing to the Agent and FTX,
unless such Bank shall designate a different LIBOR Office by
notice in writing to the Agent and FTX.
"Lien" means with respect to any asset, (a) a
mortgage, deed of trust, lien, pledge, encumbrance, charge
or security interest in or on such asset, (b) the interest
of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement
relating to such asset, (c) in the case of securities, any
purchase option, call or similar right of a third party with
respect to such securities except for any purchase option,
call or similar right under the Partnership Agreement as in
effect on the Amendment Closing Date or as modified from
time to time with the consent of the Required Banks and
(d) other encumbrances of any kind, including, without
limitation, production payment obligations.
"Loan" means any loan made pursuant to
Section 3.2.
"Loan Documents" means the Amendment Agreement,
the Corporate Group Facility, the Corporate Group Notes, the
FTX Intercreditor Agreement, the Security Agreement, the
Pledge Agreement, 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.
"Loan Exposure" means the aggregate amount of
unpaid principal of all Loans made by the Banks.
"Long-Term Concentrate Sales Agreement" means any
Concentrate Sales Agreement with a term of at least one
year.
"Major Subsidiary" means each of FI and FRP.
"Margin Stock" has the meaning assigned to such
term in Regulation U of the Board, as the same is from time
to time in effect.
"Maturity Date" means December 31, 1999, or, if
earlier, the date of termination of the Commitments pursuant
to the terms hereof.
"Memorandum of Understanding" means the Memorandum
of Understanding dated as of December 27, 1991, between the
Ministry of Mines and Energy of the Government of the
Republic of Indonesia, and FI as amended, modified or
supplemented and in effect from time to time.
"MS Factor" has the meaning assigned to such term
in Section 2.1 of the FTX Credit Agreement.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which FTX or any
ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"Net Asset Value" means the present value assigned
to an asset by FTX based on the assumptions utilized in the
most recent engineering or other asset valuation report
provided to each Borrowing Base Bank pursuant to
Section 5.1(g), as adjusted for FTX's net ownership interest
and after coverage as provided in the most recent Borrowing
Base Certificates, as certified by the Treasurer or another
Financial Officer of FTX for purposes of Section 2.5 of the
FTX Credit Agreement.
"Net Proceeds" means (i) the gross fair market
value of the consideration or other amounts payable to or
receivable by FTX, any Restricted Subsidiary and IMC-Agrico,
in respect of any sales, transfers, distributions (other
than cash dividends and dividends by FTX consisting of stock
or units of the Subsidiaries) or other dispositions of
assets or properties (including any capital or other equity
interests owned, but excluding direct issuances of equity by
FTX or a Restricted Subsidiary other than in the ordinary
course of business, less (ii) the amount, if any, of all
taxes (but including income taxes only to the extent such
Person reasonably estimates that such income taxes will be
paid on the date of the next income tax filing by such
Person or such affiliate of such Person), and reasonable and
customary fees, commissions, costs and other expenses (other
than those payable to FTX, any Restricted Subsidiary, IMC or
any affiliate of IMC) which are incurred in connection with
such sales, transfers, distributions or other dispositions
and are payable by the seller or the transferor of the
assets or property to which such sales, transfers,
distributions or other dispositions relate, but only to the
extent not already deducted in arriving at the amount
referred to in clause (i); provided, however, that with
respect to IMC-Agrico, for purposes of Section 2.5 of the
FTX Credit Agreement, only the FRP Share in excess of
$25,000,000 shall be deemed to constitute Net Proceeds.
"FRP Share" means the Capital Interest of FRP Partner
multiplied by the amount preceding this proviso.
"1992 Form 10-K" has the meaning assigned to such
term in Section 4.1(e).
"Nonrestricted Subsidiary" means (i) any of the
following: Bella Luna Incorporated, a Louisiana
corporation, Eastern Mining Company Inc., a Delaware
corporation, Freeport Copper Company, a Delaware
corporation, Freeport-McMoRan Chile Inc., a Delaware
corporation, Freeport-McMoRan Spain Incorporated, a Delaware
corporation, Freeport-McMoRan Thaitex Company, a Delaware
corporation, Freeport-Warim, Inc., a Delaware corporation,
P.T. Indonesia Freeport Finance Company, an Indonesian
corporation, Freeport Egyptian Sulphur Company, a Delaware
corporation, Dill Holdings Incorporated, a Delaware
corporation, Freeport International, Incorporated, a Delaware
corporation, and Freeport Mining Company, a Delaware
corporation, (ii) any Subsidiary of any Nonrestricted
Subsidiary and (iii) any surviving corporation (other than
FTX or a Restricted Subsidiary) into which any of such
corporations referred to in clause (i) or (ii) is merged or
consolidated, subject to Section 5.2(c) and (iv) any
Subsidiary organized after the date of this Agreement for
the purpose of acquiring the stock or assets of another
Person or for start-up ventures or exploration programs or
activities. By written notice to the Agent, FTX may
(x) declare any Nonrestricted Subsidiary to be a Restricted
Subsidiary and such former Nonrestricted Subsidiary shall
thereafter be deemed to be a Restricted Subsidiary for all
purposes of this Agreement or (y) at any time other than
when a Default or Event of Default has occurred and is
continuing or the aggregate principal amount of the
Corporate Group Loans exceeds the Available Borrowing Base,
in any fiscal year, declare one or more Restricted
Subsidiaries, the interest of FTX in all of which has an
equity value or loan investment of less than $5,000,000 in
the aggregate, to be a Nonrestricted Subsidiary and any such
former Restricted Subsidiary shall thereafter be deemed to
be a Nonrestricted Subsidiary for all purposes of this
Agreement.
"Operating Lease" means any lease other than a
lease giving rise to a Capitalized Lease Obligation.
"Original Execution Date" means October 27, 1989.
"Partnership Agreement" has the meaning assigned
to such term in the FM Credit Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"Pel-Tex Agreements" means the Loan Agreement and
related documents dated as of December 31, 1985, as amended
and in effect from time to time, among FTX, as ultimate
successor to FMP Operating Company (as purchaser), and Pel-Tex
Oil Company, Inc., Chenier Oil Company, Inc., Burke and
Pel-Tex Oil Company, Inc., doing business as Burmont
Company, Earl P. Burke, Jr., and Fay Stouder Burke (as
sellers).
"Pel-Tex Bank Agreement" means the Credit
Agreement dated as of December 31, 1985, among the Burke
Parties, the banks named therein and Hibernia National Bank,
as agent for such banks, as the same may be amended and in
effect from time to time.
"Pel-Tex Lenders" means, collectively, Burke Oil
Company (formerly, Pel-Tex Oil Company, Inc.), Chenier Oil
Company, Inc., Burke and Pel-Tex Oil Company, Inc., doing
business as Burmont Company, Earl P. Burke, Jr., and Fay
Stouder Burke (collectively, the "Burke Parties") and the
banks party to the Pel-Tex Bank Agreement.
"Permitted Investments" means (a) certificates of
deposit of, or other bank accounts with, banks (or with
their branches) having a short-term deposit rating issued by
Moody's Investors Services, Inc., of P-1; (b) investments in
readily marketable money market funds having assets in
excess of one billion dollars, which assets have an average
life of less than one year and an average quality of at
least "A" as rated by Standard & Poor's Corporation or
Moody's Investors Services, Inc.; and (c) commercial paper
rated A-1 by Standard & Poor's Corporation or P-1 by Moody's
Investors Services, Inc.
"Permitted Secured Swap" means any interest rate
protection agreement or commodities price protection
agreement between FTX, FI or FRP and any Bank that shall be
ratably secured pursuant to this Agreement, the FTX
Intercreditor Agreement, an intercreditor agreement relating
to the assets of FI subject to the FI Security Documents
and, in the case of any such interest rate or commodities
price protection agreement with FI, the FI Security
Documents.
"Person" means an individual or a corporation,
partnership, trust, incorporated or unincorporated association,
joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind.
"Plan" means any pension plan (other than a
Multiemployer Plan) which is subject to the provisions of
Title IV of ERISA and which is maintained for employees of
FTX or any ERISA Affiliate.
"Pledge Agreement" means, collectively, the FTX
Pledge Agreement and any FTX Subsidiary Pledge Agreement.
"Power Facilities Transfer" means, collectively,
each transfer by FI of electric power generation and
transmission facilities with arrangements providing for the
continued supply of electric power to the FI Project, all on
terms and conditions approved by the Agent.
"Preferred Stock" has the meaning assigned to such
term in Section 5.2(q).
"Promissory Notes" means the promissory notes of
FI referred to in Section 3.5.
"Reduction Date" has the meaning assigned to such
term in Section 3.8(b).
"Reference Banks" means Chemical Bank, ABN Amro
Bank, N.V., and National Westminster bank, PLC.
"Reference Rate Loan" means any Loan for which
interest is determined, in accordance with the provisions
hereof, at the Applicable Reference Rate.
"Reportable Event" means any "reportable event" as
defined in Section 4043(b) of ERISA or the regulations
issued thereunder.
"Required Banks" means at any time Banks having
Commitments representing at least 66-2/3% of the aggregate
Commitments hereunder.
"Required Borrowing Base Banks" has the meaning
assigned to such term in Article I of the FTX Credit
Agreement.
"Responsible Officer" of any corporation means any
executive officer or Financial Officer of such corporation
and any other officer or similar official thereof responsible
for the administration of the obligations of such corporation
in respect of this Agreement.
"Restricted Subsidiary" means FRP, FCX, FI, FRP
Partner, FRP GPCo, FCC and any other Subsidiary that is not
a Nonrestricted Subsidiary.
"Sales Proceeds Account" has the meaning assigned
to such term in the FI Trust Agreement.
"Scheduled Principal Payments" for any period and
for any Person means the aggregate principal amount of all
Loans repaid pursuant to Section 3.10(b) by virtue of
Section 3.8(b) in such period, (ii) the aggregate principal
amount of all FTX Credit Agreement Loans repaid pursuant to
Section 3.10(b) by virtue of Section 3.8(b) of the FTX
Credit Agreement in such period, plus (iii) scheduled
principal payments on all Debt.
"SEC" means the Securities and Exchange Commission.
"Security Agreement" means, collectively, the FTX
Security Agreement and any FTX Subsidiary Security
Agreement.
"Shared Collateral" has the meaning assigned such
terms in the FTX Intercreditor Agreement.
"Statutory Reserves" means a fraction (expressed
as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the aggregate
of the maximum reserve percentages (including, without
limitation, any marginal, special, emergency, or supplemental
reserves) expressed as a decimal established by the
Board and any other banking authority to which any Bank is
subject (a) with respect to the Adjusted CD Rate, for new
negotiable time deposits in Dollars of over $100,000 with
maturities approximately equal to the applicable Interest
Period and (b) with respect to the LIBO Rate, for Eurocurrency
Liabilities (as defined in Regulation D of the Board).
Such reserve percentages shall include, without limitation,
those imposed under such Regulation D. Statutory Reserves
shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"Subordination Provisions" means the form of
subordination provisions attached hereto as Exhibit A.
"Subsidiary" means as to any Person, any
corporation at least a majority of whose securities having
ordinary voting power for the election of directors (other
than securities having such power only by reason of the
happening of a contingency) are at the time owned by such
Person and/or one or more other Subsidiaries of such Person
and any partnership (other than joint ventures for which the
intention under the applicable agreements, including
operating agreements, if any, is that such joint ventures be
partnerships solely for purposes of the Code) in which such
Person or a Subsidiary of such Person is a general partner;
provided that unless otherwise specified, "Subsidiary" means
a Subsidiary of FTX and provided, further, that FM
Properties, FM Corporation and IMC-Agrico shall not at any
time be Subsidiaries for any purposes of this Agreement.
"Surat Kuasa" means the Surat Kuasa (Power of
Attorney) dated December 30, 1991, as amended by the First
Amendment thereto dated the Amendment Closing Date, granted
by FI to the FI Trustee, as the same may be further amended
and in effect from time to time.
"Termination Event" means any event or condition
which constitutes grounds under Section 4042 of ERISA for
the termination of, or for the appointment of a trustee to
administer, any Plan.
"Total Commitment" means the sum of all the then
effective Commitments.
"Transfer Effective Date" has the meaning assigned
to such term in each Commitment Transfer Supplement.
"Transferee" means any Participant or Purchasing
Bank, as such terms are defined in Section 10.3.
"Unused Net Commitment Amount" means the amount of
the FTX Credit Agreement Total Commitment less the Corporate
Group Loan Exposure.
"Wholly-Owned Restricted Subsidiary" means any
Subsidiary all of the stock of which is at the time owned by
FTX, FRP and/or one or more other Wholly-Owned Restricted
Subsidiaries of either of them.
"Withdrawal Liability" means liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. Accounting Terms. Except as otherwise
herein specifically provided, each accounting term used
herein shall have the meaning given it under United States
generally accepted accounting principles in effect from time
to time (with such changes thereto as are approved or
concurred in from time to time by FTX's independent public
accountants, as applicable) applied on a basis consistent
with those used in preparing the financial statements
referred to in Section 5.1(a) ("GAAP"); provided, however,
that each reference in Section 5.2 hereof, or in the
definition of any term used in Section 5.2 hereof, to GAAP
shall mean generally accepted accounting principles as in
effect on the Amendment Closing Date and as applied by FTX
in preparing the financial statements referred to in
Section 4.1(e).
SECTION 1.3. Section, Article, Exhibit and
Schedule References. Unless otherwise stated, Section,
Article, Exhibit and Schedule references made herein are to
Sections, Articles, Exhibits or Schedules, as the case may
be, of this Agreement.
ARTICLE II
[Intentionally left blank.]
ARTICLE III
The Loans
SECTION 3.1. [Intentionally left blank.]
SECTION 3.2. Revolving Credit Facility. Upon the
terms and subject to the conditions and relying upon the
representations and warranties herein set forth, each Bank,
severally and not jointly, agrees to make Loans to FI, at
any time and from time to time during the Commitment Period,
in an aggregate principal amount at any one time outstanding
not to exceed such Bank's Applicable Percentage of the
Unused Net Commitment Amount on the Borrowing Date for such
Loan. Within the foregoing limits, FI may borrow, repay and
reborrow, prior to the Maturity Date, all or any portion of
the Commitments hereunder, subject to the terms, provisions
and limitations set forth herein; provided, however, that no
borrowing shall be made hereunder if (i) after giving effect
thereto the principal amount outstanding of the Loans of any
Bank would exceed the Commitment of such Bank or (ii) except
for continuations or conversions of existing Loans during
any applicable 90-day period referred to in Section 2.4 of
the FTX Credit Agreement without increase in the principal
amount of such Loans, the aggregate principal amount of all
the Corporate Group Loans would exceed the lesser of (x) the
then current Available Borrowing Base or (y) the then
current FTX Credit Agreement Total Commitment.
SECTION 3.3. Loans. (a) The Loans made by the
Banks to FI on any one date shall be in a minimum aggregate
principal amount of $5,000,000 and an integral multiple of $1,000,000.
The first Loan by each Bank to FI made after the Amendment Closing
Date shall be made against delivery to such Bank of an appropriate
Promissory Note, payable to the order of such Bank in the amount of
its Commitment, executed by FI, as referred to in Section 3.5.
(b) Each Loan shall be either a Reference Rate Loan, a CD
Rate Loan or a LIBO Rate Loan as FI may request pursuant to
Section 3.4. Subject to the provisions of Sections 3.4 and 3.11,
Loans of more than one type may be outstanding at the same time.
(c) Each Bank shall make its portion, as determined under
Section 3.15, of each Loan hereunder on the proposed date thereof by
paying the amount required to the Agent in New York, New York in
immediately available funds not later than 2:00 p.m., New York City
time, and the Agent shall by 3:00 p.m., New York City time, credit the
amounts so received to the general deposit account of FI with the
Agent or, if Loans shall not be made on such date because any
condition precedent to a borrowing herein specified is not met, return
the amounts so received to the respective Banks. Unless the Agent
shall have received notice from a Bank prior to the date of any Loan
that such Bank will not make available to the Agent such Bank's
portion of such Loan, the Agent may assume that such Bank has made
such portion available to the Agent on the date of such Loan in
accordance with this paragraph (c) and the Agent may, in reliance upon
such assumption, make available to FI on such date a corresponding
amount. If and to the extent that such Bank shall not have made such
portion available to the Agent, such Bank and FI severally agree to
repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount
is made available to the applicable Borrower until the date such
amount is repaid to the Agent at the interest rate applicable at such
time to such Loan. If such Bank shall repay to the Agent such
corresponding amount, such amount shall constitute such Bank's Loan
for purposes of this Agreement.
SECTION 3.4. Notice of Loans. (a) FI shall give the
Agent irrevocable telephonic (promptly confirmed in writing),
written, telecopy or telex notice in the form of Exhibit B with
respect to each Loan (i) in the case of a LIBO Rate Loan, not later
than 10:30 a.m., New York City time, three Business Days before a
proposed borrowing, (ii) in the case of a CD Rate Loan, not later
than 10:30 a.m., New York City time, one Business Day before a
proposed borrowing, and (iii) in the case of a Reference Rate Loan,
not later than 10:30 a.m., New York City time, on the date of a
proposed borrowing. Such notice shall be irrevocable (except that in
the case of a LIBO Rate Loan, FI may, subject to Section 3.14,
revoke such notice by giving written or telex notice thereof to the
Agent not later than 10:30 a.m., New York City time, two Business Days
before such proposed borrowing) and shall in each case refer to this
Agreement and specify (1) whether the Loan then being requested is to
be a Reference Rate Loan, CD Rate Loan or LIBO Rate Loan, (2) the date
of such Loan (which shall be a Business Day) and amount thereof, and
(3) if such Loan is to be a CD Rate Loan or LIBO Rate Loan, the
Interest Period or Interest Periods with respect thereto. If no
election as to the type of Loan is specified in any such notice by FI,
such Loan shall be a Reference Rate Loan. If no Interest Period
with respect to any CD Rate Loan or LIBO Rate Loan is
specified in any such notice by FI, then (x) in the case of
a CD Rate Loan, FI shall be deemed to have selected an
Interest Period of 30 days' duration and (y) in the case of
a LIBO Rate Loan, FI shall be deemed to have selected an
Interest Period of one month's duration. The Agent shall
promptly advise the other Banks of any notice given by FI
pursuant to this Section 3.4(a) and of each Bank's portion
of the requested Loan.
(b) FI may continue or convert all or any part of
any Loan with a Loan of the same or a different type in
accordance with Section 3.11 and subject to the limitations
set forth therein.
(c) Notwithstanding any provision to the contrary
in this Agreement, FI shall not in any notice of borrowing
under this Section 3.4 request any CD Rate Loan or LIBO Rate
Loan which, if made, would result in more than 20 separate
CD Rate Loans and LIBO Rate Loans of any Bank and CD Rate
Loans and LIBO Rate Loans (each as defined in the FTX Credit
Agreement) of any FTX Lender being outstanding under the
Corporate Group Facility at any one time. For purposes of
the foregoing, Loans having different Interest Periods,
regardless of whether they commence on the same date, shall
be considered separate Loans.
SECTION 3.5. Promissory Notes. (a) The Loans
made by each Bank to FI shall be evidenced by a Promissory
Note duly executed on behalf of FI, dated the Original
Execution Date, in substantially the form attached hereto as
Exhibit C, payable to such Bank in a principal amount equal
to its Commitment on such date. The outstanding principal
balance of each Loan, as evidenced by such Promissory Note,
shall be payable on the Maturity Date. Each Note shall bear
interest from its date on the outstanding principal balance
thereof, as provided in Section 3.6.
(b) Each Bank, or the Agent on its behalf, shall,
and is hereby authorized by FI to, endorse on the schedule
attached to the Promissory Note delivered by FI to such Bank
(or on a continuation of such schedule attached to such
Promissory Note and made a part thereof), or otherwise
record in such Bank's internal records, an appropriate
notation evidencing the date and amount of each Loan from
such Bank to FI, as well as the date and amount of each
payment and prepayment with respect thereto; provided,
however, that the failure of any Bank or the Agent to make
such a notation or any error in such a notation shall not
affect the obligation of FI under such Promissory Note.
SECTION 3.6. Interest on Loans. (a) Subject to
the provisions of Section 3.9, each Reference Rate Loan
shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of
365 or 366 days, as the case may be), equal to the
Applicable Reference Rate. Interest on each Reference Rate
Loan shall be payable on the applicable Interest Payment
Date.
(b) Subject to the provisions of Section 3.9,
each CD Rate Loan shall bear interest at a rate per annum
(computed on the basis of the actual number of days elapsed
over a year of 360 days) equal to the Applicable CD Rate for
the Interest Period in effect for such Loan. Interest on
each CD Rate Loan shall be payable on each applicable
Interest Payment Date. The Applicable CD Rate shall be
determined by the Agent, and such determination shall be
conclusive absent manifest error. The Agent shall promptly
advise FI and each Bank of such determination.
(c) Subject to the provisions of Section 3.9,
each Loan which is a LIBO Rate Loan shall bear interest at a
rate per annum (computed on the basis of the actual number
of days elapsed over a year of 360 days) equal to the
Applicable LIBO Rate for the Interest Period in effect for
such Loan. Interest on each such LIBO Rate Loan shall be
payable on each applicable Interest Payment Date. The
Applicable LIBO Rate shall be determined by the Agent, and
such determination shall be conclusive absent manifest
error. The Agent shall promptly advise FI and each Bank of
such determination.
(d) If the Applicable Margins for Loans change
pursuant to Schedule II-1 or II-2 as a result of a change in
the Cash Flow Ratio, such change shall become effective on
the first day of the third month after the last day of the
fiscal quarter with respect to which such Cash Flow Ratio
was calculated and shall continue in effect until the first
day of the third month after the last day of the next
succeeding fiscal quarter for which a change in the Cash
Flow Ratio would require a different Applicable Margin for
Loans pursuant to Schedule II-1 or II-2.
SECTION 3.7. Fees. (a) On the last Business Day
of each March, June, September and December, and on the
Maturity Date, FI shall pay each Bank, through the Agent, a
commitment fee (a "Commitment Fee") from and including the
Original Execution Date through and including the Maturity
Date on (i) with respect to any quarter (or shorter period
commencing with the Original Execution Date or ending on the
date immediately preceding the Amendment Closing Date) prior
to the Amendment Closing Date, the average daily unused
amount of such Bank's Commitment (as defined in and
calculated in accordance with this Agreement as in effect
prior to the Amendment Closing Date), if any, equal to 1/4
of 1% per annum and (ii) with respect to any quarter after
the Amendment Closing Date, the amount set forth in and
pursuant to (and not in duplication of) Section 3.7(a) of
the FTX Credit Agreement.
(b) [Intentionally left blank.]
(c) All Commitment Fees under this Section 3.7
shall be computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be.
The Commitment Fees due to each Bank shall cease to accrue
on the earlier of the Maturity Date and the termination of
the Commitment of such Bank pursuant to Section 3.8.
(d) On the Amendment Closing Date FTX will also
pay to each Bank a participation fee (a "Participation Fee")
as set forth on Schedule IV to the FTX Credit Agreement,
such fee to be paid pursuant to Section 3.7(d) of the FTX
Credit Agreement and not in duplication of such fee.
(e) FTX agrees to pay to the Agent, for its own
account pursuant hereto and to the FTX Credit Agreement, on
May 15th of each year, an agency fee (the "Agency Fee") as
agreed between FTX and the Agent.
SECTION 3.8. Maturity and Reduction of Commitments.
(a) Upon at least five days' prior written or telex
notice to the Agent, FI may without penalty at any time in
whole permanently terminate, or from time to time permanently
reduce, the Total Commitment, ratably among the Banks
in accordance with the amounts of their respective Commitments;
provided, however, that each partial reduction of the
Commitment Amount shall be in a minimum principal amount of
$5,000,000 and an integral multiple of $1,000,000; provided
further, that the Total Commitment may not be reduced to an
amount which is less than the lesser of (i) the aggregate
principal amount of all Loans outstanding after such
reduction and (ii) the amount of the FTX Credit Agreement
Total Commitment on such date.
(b) The Total Commitment shall be permanently
reduced on the Conversion Date to the aggregate principal
amount of the Loans outstanding on such date (after giving
effect to any Loans made on such date). Thereafter, the
Total Commitment shall be reduced on the last Business Day
of March, June, September and December in each year (each a
"Reduction Date"), commencing on September 30, 1996, by
14 consecutive reductions, each in an amount equal to the
lesser of (i) 1/14th of the Total Commitment as in effect on
the Conversion Date after reduction as aforesaid and
(ii) the Total Commitment on such Reduction Date.
(c) [Intentionally left blank.]
(d) [Intentionally left blank.]
(e) On the Maturity Date the Commitments shall
terminate and any outstanding Loans shall be due and payable
in full.
SECTION 3.9. Interest on Overdue Amounts; Alternative
Rate of Interest. (a) If FI shall default in the
payment of the principal of or interest on any Corporate
Group Loan or any other amount becoming due hereunder or
under the FTX Credit Agreement), by acceleration or
otherwise, FI shall on demand from time to time pay
interest, to the extent permitted by law, on such defaulted
amount up to the date of actual payment (after as well as
before judgment):
(i) in the case of the payment of principal of or
interest on a CD Rate Loan or LIBO Rate Loan, at a
rate 2% above the rate which would otherwise be payable
under Section 3.6(b) or (c), as the case may be, until
the scheduled maturity date with respect thereto and
thereafter as provided in clause (ii) below; and
(ii) in the case of the payment of principal of or
interest on a Reference Rate Loan or any other amount
payable hereunder (other than principal of or interest
on any CD Rate Loan or LIBO Rate Loan to the extent
referred to in clause (i) above), at a rate 2% above
the Applicable Reference Rate.
(b) In the event, and on each occasion, that on
the day two Business Days prior to the commencement of any
Interest Period for a LIBO Rate Loan the Agent shall have
determined (which determination shall be conclusive and
binding upon FI absent manifest error) that (i) dollar
deposits in the requested principal amount of such LIBO Rate
Loan are not generally available in the London Interbank
Market, (ii) the rate at which dollar deposits are being
offered will not adequately and fairly reflect the cost to
any Bank of making or maintaining the principal amount of
such LIBO Rate Loan during such Interest Period or
(iii) reasonable means do not exist for ascertaining the
Applicable LIBO Rate, the Agent shall as soon as practicable
thereafter give written or telex notice of such
determination to FI and the other Banks, and any request by
FI for the making, continuation or conversion of a LIBO Rate
Loan pursuant to Section 3.4 or 3.11 shall, until the Agent
shall have advised FI and the Banks that the circumstances
giving rise to such notice no longer exist, be deemed to be
a request for a Reference Rate Loan: provided, however,
that if the Agent makes the determination specified in (ii)
above, at the option of FI such request shall be deemed to
be a request for a Reference Rate Loan only from such Bank
referred to in (ii) above; provided further, however, that
such option shall not be available to FI if the Agent makes
the determination specified in (ii) above with respect to
three or more Banks. Each determination of the Agent
hereunder shall be conclusive absent manifest error.
(c) In the event, and on each occasion, that on
or before the day on which the Adjusted CD Rate for a CD
Rate Loan is to be determined, the Agent shall have
determined (which determination shall be conclusive and
binding upon FI absent manifest error) that (i) the Adjusted
CD Rate for such Loan cannot be ascertained for any reason,
including, without limitation, the inability or failure of
the Agent to obtain sufficient bids in accordance with the
terms of the definition of Base CD Rate, or (ii) that the
Adjusted CD Rate for such CD Rate Loan will not adequately
and fairly reflect the cost to any Bank of making or
maintaining the principal amount of such CD Rate Loan during
such Interest Period, the Agent shall, as soon as
practicable thereafter, give written or telex notice of such
determination to FI and the other Banks, and any request by
FI for the making, continuation or conversion of a CD Rate
Loan pursuant to Section 3.4 or 3.11 shall, until the Agent
shall have advised FI and the Banks that the circumstances
giving rise to such notice no longer exist, be deemed to be
a request for a Reference Rate Loan; provided, however, that
if the Agent makes the determination specified in (ii)
above, at the option of FI such request shall be deemed to
be a request for a Reference Rate Loan only from such Bank
referred to in (ii) above; provided further, however, that
such option shall not be available to FI if the Agent makes
the determination specified in (ii) above with respect to
three or more Banks. Each determination by the Agent
hereunder shall be conclusive absent manifest error.
SECTION 3.10. Prepayment of Loans. (a) FI shall
have the right at any time and from time to time to prepay
any Loan, in whole or in part, subject to the requirements
of Section 3.14 but otherwise without premium or penalty,
upon prior written or telex notice to the Agent by
10:30 a.m., New York City time, on the date of such
prepayment; provided, however, that each such partial
prepayment shall be in a minimum amount of $5,000,000 and an
integral multiple of $1,000,000.
(b) FI shall from time to time pay or prepay so
much of the Loans as shall be necessary in order that
(i) the aggregate principal amount of the Corporate Group
Loans (after giving effect to any other prepayment of
Corporate Group Loans on such date) outstanding will not
exceed the FTX Credit Agreement Total Commitment then in
effect and (ii) the aggregate principal amount of the Loans
(after giving effect to any other prepayment of Loans on
such date) outstanding will not exceed the Total Commitment
then in effect. All prepayments under this Section shall be
subject to Section 3.14.
(c) Not later than 90 days after each reduction
in the amount of the Borrowing Base as a result of any
redetermination of the Borrowing Base Factors pursuant to
Article II of the FTX Credit Agreement, FI shall prepay the
outstanding Loans in such amount as may be necessary so that
the aggregate principal amount of the outstanding Corporate
Group Loans (after giving effect to any other prepayment of
Corporate Group Loans on such date) does not exceed the
Available Borrowing Base after giving effect to such
reduction; provided, however, that if such reduction in the
Borrowing Base is a result of any sales, transfers,
distributions, or other dispositions of assets or properties
(including, without limitation, shares of any capital stock
or other equity interests of any Restricted Subsidiary)
other than in the ordinary course of business, such 90-day
grace period will not apply with respect to the required
mandatory prepayment. During any such applicable 90-day
period, continuations or conversions of Loans in accordance
with Section 3.11 are permitted; provided that the Interest
Periods for such continued or converted borrowings do not
extend beyond such 90-day period unless the condition
requiring prepayments pursuant to this Section 3.10(c) shall
no longer exist. Any prepayment of any CD Rate Loan or LIBO
Rate Loan pursuant to this Section 3.10(c) shall be subject
to Section 3.14.
(d) Each notice of prepayment delivered pursuant
to paragraph (a) above shall specify the prepayment date and
the principal amount of each Loan (or portion thereof) to be
prepaid, shall be irrevocable and shall commit FI to prepay
such Loan by the amount stated therein on the date stated
therein. All prepayments shall be applied first to
Reference Rate Loans and then to other Loans and shall be
accompanied by accrued interest on the principal amount
being prepaid to the date of prepayment. Any amounts
prepaid may be reborrowed to the extent permitted by the
terms of this Agreement.
(e) The Loans of FI shall be paid or prepaid
pursuant to Section 5.1(i).
SECTION 3.11. Continuation and Conversion of
Loans. FI shall have the right, subject to the provisions
of Section 3.9, (i) on three Business Days' prior
irrevocable notice by FI to the Agent, to continue or
convert any type of Loans with LIBO Rate Loans, (ii) on one
Business Day's prior irrevocable notice by FI to the Agent,
to continue or convert any type of Loans with CD Rate Loans
or (iii) with irrevocable notice by FI to the Agent by
10:30 a.m. on the date of such proposed continuation or
conversion, to continue or convert any type of Loans with
Reference Rate Loans, in each case subject to the following
further conditions:
(a) each continuation or conversion shall be made
pro rata as to each type of Loan of FI to be continued
or converted among the Banks in accordance with the
respective amounts of their Commitments and the notice
given to the Agent by FI shall specify the aggregate
amount of Loans to be continued or converted;
(b) in the case of a continuation or conversion of
less than all Loans of FI, the Loans continued or
converted shall be in a minimum aggregate principal
amount of $5,000,000 and an integral multiple of
$1,000,000;
(c) accrued interest on each Loan (or portion
thereof) being continued or converted shall be paid by
FI at the time of continuation or conversion;
(d) the Interest Period with respect to any Loan
made in respect of a continuation or conversion thereof
shall commence on the date of the continuation or
conversion;
(e) any portion of a Loan maturing or required to
be prepaid in less than 30 days may not be continued or
converted with a CD Rate Loan and any portion of a Loan
maturing or required to be prepaid in less than one
month may not be continued or converted with a LIBO
Rate Loan;
(f) a CD Rate Loan or a LIBO Rate Loan may be
continued or converted on the last day of the
applicable Interest Period and, subject to
Section 3.14, on any other day;
(g) no Loan (or portion thereof) may be continued
or converted into a CD Rate Loan or LIBO Rate Loan if,
after such continuation or conversion, an aggregate of
more than 20 separate CD Rate Loans and LIBO Rate Loans
of any Bank and CD Rate Loans and LIBO Rate Loans (each
as defined in the FTX Credit Agreement) of any FTX
Lender would be outstanding under the Corporate Group
Facility determined as set forth in Section 3.4(c);
(h) no Loan shall be continued or converted if
such Loan by any Bank would be greater than the amount
by which its Commitment exceeds the amount of its other
Loans at the time outstanding or if such Loan would not
comply with the other provisions of this Agreement,
including clause (ii) of the proviso to Section 3.2;
and
(i) any portion of a LIBO Rate Loan or CD Rate
Loan which cannot be converted into or continued as a
LIBO Loan or CD Rate Loan by reason of (e) and (g)
above shall be automatically converted at the end of
the Interest Period in effect for such Loan into a
Reference Rate Loan.
The Agent shall communicate the information contained in
each irrevocable notice delivered by FI pursuant to this
Section 3.11 to the other Banks promptly after its receipt
of the same.
The Interest Period applicable to any CD Rate Loan
or LIBO Rate Loan resulting from a continuation or
conversion shall be specified by FI in the irrevocable
notice of continuation or conversion delivered pursuant to
this Section; provided, however, that if no such Interest
Period shall be specified, FI shall be deemed to have
selected an Interest Period in the case of a CD Rate Loan of
30 days' duration, and in the case of a LIBO Rate Loan of
one month's duration.
For purposes of this Section 3.11, notice received
by the Agent from FI after 10:30 a.m., New York time, in the
case of a request for a LIBO Rate Loan or a CD Rate Loan, or
2:00 p.m., New York time, in the case of a request for a
Reference Rate Loan, on a Business Day shall be deemed to be
received on the immediately succeeding Business Day.
SECTION 3.12. Reserve Requirements; Change in
Circumstances. (a) FI shall pay to each Bank on the last
day of each Interest Period for any LIBO Rate Loan so long
as such Bank may be required to maintain reserves against
Eurocurrency Liabilities (as defined in Regulation D of the
Board) (or so long as such Bank may be required to maintain
reserves against any other category of liabilities which
includes deposits by reference to which the interest rate on
any LIBO Rate Loan is determined as provided in this
Agreement or against any category of extensions of credit or
other assets of such Bank which includes any LIBO Rate Loan)
an additional amount (determined by such Bank and notified
to FI), equal to the product of the following for each
affected LIBO Rate Loan for each day during such Interest
Period:
(i) the principal amount of such affected LIBO
Rate Loan outstanding on such day; and
(ii) the remainder of (x) the product of Statutory
Reserves on such date times the Applicable LIBO Rate on
such day minus (y) the Applicable LIBO Rate on such
day; and
(iii) 1/360.
Each Bank shall separately bill FI directly for all amounts
claimed pursuant to this Section 3.12(a).
(b) Notwithstanding any other provision herein,
if after the Amendment Closing Date any change in condition
or applicable law or regulation or in the interpretation or
administration thereof (whether or not having the force of
law and including, without limitation, Regulation D of the
Board) by any authority charged with the administration or
interpretation thereof shall occur which shall:
(i) subject any Bank (which shall for the purpose
of this Section include any assignee or lending office
of any Bank) to any tax with respect to any amount paid
or to be paid by any Bank with respect to its LIBO Rate
Loans or CD Rate Loans (other than any franchise tax or
tax or other similar governmental charges, fees or
assessments based on the overall net income of such
Bank by the U.S. Federal government or by any
jurisdiction in which such Bank maintains an office,
unless the presence of such office is solely
attributable to the enforcement of any rights hereunder
or under any FI Security Document with respect to an
Event of Default);
(ii) change the basis of taxation of payments to
any Bank of principal of or interest on its LIBO Rate
Loans or CD Rate Loans or other fees and amounts
payable hereunder, or any combination of the foregoing
(other than any franchise tax or tax or other similar
governmental charges, fees or assessments based on the
overall net income of any Bank by the U.S. Federal
government or by any jurisdiction in which such Bank
maintains an office unless the presence of such office
is solely attributable to the enforcement of any rights
hereunder or under any FI Security Document with
respect to an Event of Default);
(iii) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets
of, deposits with, for the account of or credit
extended by any Bank (except any such reserve requirement
which is reflected in the Adjusted CD Rate);
(iv) impose on any such Bank or the London
Interbank Market any other condition affecting this
Agreement or LIBO Rate Loans or CD Rate Loans made by
such Bank; or
(v) impose upon any Bank any other condition with
respect to any amount paid or to be paid by any Bank
with respect to its LIBO Rate Loans or CD Rate Loans or
this Agreement;
and the result of any of the foregoing shall be to increase
the cost to any Bank of making or maintaining its LIBO Rate
Loans or CD Rate Loans or Commitment hereunder, or to reduce
the amount of any sum (whether of principal, interest or
otherwise) received or receivable by such Bank or to require
such Bank to make any payment, in respect of any such Loan,
in each case by or in an amount which such Bank in its sole
judgment shall deem material, then FI shall pay to such Bank
such an amount or amounts as will compensate the Bank for
such additional cost, reduction or payment.
(c) If any Bank shall have determined that the
applicability of any law, rule, regulation, agreement or
guideline adopted after the Amendment Closing Date pursuant
to or arising out of the July 1988 report of the Basle
Committee on Banking Regulations and Supervisory Practices
entitled "International Convergence of Capital Measurement
and Capital Standards", or the adoption after the Amendment
Closing Date of any other law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the
foregoing enacted after the Amendment Closing Date or in the
interpretation or administration of any of the foregoing by
any governmental authority, central bank or comparable
agency charged with the interpretation or administration
thereof, or compliance by any Bank (or any lending office of
such Bank) or any Bank's holding company with any request or
directive enacted after the Amendment Closing Date regarding
capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on
such Bank's capital or on the capital of such Bank's holding
company, if any, as a consequence of its obligations hereunder
to a level below that which such Bank or such Bank's
holding company could have achieved but for such adoption,
change or compliance (taking into consideration such Bank's
policies and the policies of such Bank's holding company
with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time FI shall
pay to such Bank such additional amount or amounts as will
compensate such Bank or such Bank's holding company for any
such reduction suffered.
(d) If and on each occasion that a Bank makes a
demand for compensation pursuant to paragraph (a), (b) or
(c) above, or under Section 3.18 (it being understood that a
Bank may be reimbursed for any specific amount under only
one such paragraph or Section), FI may, upon at least three
Business Days' prior irrevocable written or telex notice to
each of such Bank and the Agent, in whole permanently
replace the Commitment of such Bank; provided that such
notice must be given not later than the 30th day following
the date of a demand for compensation made by such Bank; and
provided that FI shall replace such Commitment with the
commitment of a commercial bank satisfactory to the Agent.
Such notice from FI shall specify an effective date for the
termination of such Bank's Commitment which date shall not
be later than the tenth day after the date such notice is
given. On the effective date of any termination of such
Bank's Commitment pursuant to this clause (d), FI shall pay
to the Agent for the account of such Bank (A) any Commitment
Fees on the amount of such Bank's Commitment so terminated
accrued to the date of such termination, (B) the principal
amount of any outstanding Loans held by such Bank plus
accrued interest on such principal amount to the date of
such termination and (C) the amount or amounts requested by
such Bank pursuant to clause (a), (b) or (c) above or
Section 3.18, as applicable. FI will remain liable to such
terminated Bank for any loss or expense that such Bank may
sustain or incur as a consequence of such Bank's making any
LIBO Rate Loan or CD Rate Loan or any part thereof or the
accrual of any interest on any such Loan in accordance with
the provisions of this clause (d) as set forth in
Section 3.14. Upon the effective date of termination of any
Bank's Commitment pursuant to this clause (d), such Bank
shall cease to be a "Bank" hereunder; provided that no such
termination of any such Bank's Commitment shall affect
(i) any liability or obligation of FI or any other Bank to
such terminated Bank which accrued on or prior to the date
of such termination or (ii) such terminated Bank's rights
hereunder in respect of any such liability or obligation.
(e) A certificate of each Bank setting forth such
amount or amounts as shall be necessary to compensate such
Bank as specified in paragraph (a), (b) or (c) above, as the
case may be, shall be delivered as soon as practicable to
FI, and in any event within 90 days of the change giving
rise to such amount or amounts, and shall be conclusive
absent manifest error. FI shall pay each Bank the amount
shown as due on any such certificate within 15 days after
its receipt of the same. In preparing such a certificate,
each Bank may employ such assumptions and allocations of costs
and expenses as it shall in good faith deem reasonable.
(f) Failure on the part of any Bank to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital
within the 90 days required pursuant to clause (e) above shall
not constitute a waiver of such Bank's rights to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital for
any period after the date that is 90 days prior to the date of
the delivery of demand for compensation. The protection of
this Section shall be available to each Bank regardless of any
possible contention of invalidity or inapplicability of the
law, regulation or condition which shall have occurred or been
imposed. FI shall not be required to make any additional
payment to any Bank pursuant to Section 3.12 (a) or (b) in
respect of any such cost, reduction or payment that could be
avoided by such Bank in the exercise of reasonable diligence,
including a change in the lending office of such Bank if
possible without material cost to such Bank. Each Bank agrees
that it will promptly notify FI and the Agent of any event of
which the responsible account officer shall have knowledge
which would entitle such Bank to any additional payment
pursuant to this Section 3.12. FI agrees to furnish promptly
to the Agent official receipts evidencing any withholding or
deduction of any tax.
SECTION 3.13. Change in Legality. (a) Notwithstanding
anything to the contrary herein contained, if any
change in any law or regulation or in the interpretation
thereof by any governmental authority charged with the
administration or interpretation thereof shall make it
unlawful for any Bank to make or maintain any LIBO Rate Loan
or to give effect to its obligations as contemplated hereby,
then, by written notice to FI and to the Agent, such Bank may:
(i) declare that LIBO Rate Loans will not thereafter
be made by such Bank hereunder, whereupon FI shall be
prohibited from requesting LIBO Rate Loans from such Bank
hereunder unless such declaration is subsequently
withdrawn; and
(ii) require that all outstanding LIBO Rate Loans
made by it be converted to Reference Rate Loans, in
which event (A) all such LIBO Rate Loans shall be automatically
converted to Reference Rate Loans as of the effective date of such
notice as provided in paragraph (b) below, (B) all payments and
prepayments of principal which would otherwise have been applied to
repay the converted LIBO Rate Loans shall instead be applied to repay
the Reference Rate Loans resulting from the conversion of such LIBO
Rate Loans and (C) the Reference Rate Loans resulting from the
conversion of such LIBO Rate Loans shall be prepayable only at the
times the converted LIBO Rate Loans would have been prepayable,
notwithstanding the provisions of Section 3.10.
(b) For purposes of Section 3.13(a), a notice to
FI by any Bank shall be effective on the date of receipt by
FTX.
SECTION 3.14. Indemnity. FI shall indemnify each
Bank against any loss or expense which such Bank may sustain
or incur as a consequence of any failure by FI to fulfill on
any Borrowing Date the applicable conditions set forth in
Article VI, any failure by FI to borrow hereunder or to
convert or continue any Loan hereunder after irrevocable
notice of borrowing, continuation or conversion pursuant to
Section 3.4 or 3.11 has been given, any payment, prepayment
(except for any prepayment excluded by the terms of Section
5.1(i)) or conversion of a CD Rate Loan or LIBO Rate Loan to
FI required by any other provision of this Agreement or
otherwise made on a date other than the last day of the
applicable Interest Period (whether by reason of voluntary
prepayment, mandatory prepayment or otherwise), any default
in payment or prepayment of the principal amount of any CD
Rate Loan or LIBO Rate Loan to FI or any part thereof or
interest accrued thereon, as and when due and payable (at
the due date thereof, by irrevocable notice of prepayment or
otherwise, including the occurrence of any Event of
Default), including, but not limited to, any loss or reasonable
expense sustained or incurred or to be sustained or
incurred in liquidating or employing deposits from third
parties acquired to effect or maintain such Loan or any part
thereof as a CD Rate Loan or LIBO Rate Loan. Such loss or
reasonable expense shall include, without limitation, an
amount equal to the excess, if any, as reasonably determined
by each affected Bank of (i) its cost of obtaining the funds
for the Loan being paid, prepaid or converted or not borrowed,
continued or converted (based on the Absolute Rate,
Adjusted CD Rate or the LIBO Rate applicable thereto) for
the period from the date of such payment, prepayment or
conversion or failure to borrow, continue or convert to the
last day of the Interest Period for such Loan (or, in the
case of a failure to borrow, continue or convert, the
Interest Period for such Loan which would have commenced on
the date of such failure to borrow continue or convert) over
(ii) the amount of interest (as reasonably determined by
such Bank) that would be realized by such Bank in
reemploying the funds so paid, prepaid or converted or not
borrowed, continued or converted by making a Loan of the
same type in such principal amount and with a maturity
comparable to such period. A certificate of any Bank
setting forth any amount or amounts which such Bank is
entitled to receive pursuant to this Section shall be
delivered to FI and shall be conclusive absent manifest
error.
SECTION 3.15. Pro Rata Treatment. Except as
permitted under any of Sections 3.9(b) or (c), 3.12, 3.13,
3.14, 3.18, 3.19 or 10.17, each borrowing under each type of
Loan, each payment or prepayment of principal of the
Promissory Notes, each payment of interest on the Promissory
Notes, each other reduction of the principal or interest
outstanding under the Promissory Notes, however achieved,
including by setoff by any person, each payment of the
Commitment Fees, each reduction of the Commitments and each
continuation or conversion of Loans shall be made pro rata
among the Banks in the proportions that their respective
Commitments bear to the Total Commitment. Each Bank agrees
that in computing such Bank's portion of any borrowing to be
made hereunder, the Agent may, in its discretion, round each
Bank's percentage of such borrowing to the next higher or
lower whole dollar amount.
SECTION 3.16. Sharing of Setoffs. Each Bank
agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim against FI or either
Guarantor, or pursuant to a secured claim under Section 506
of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim,
received by such Bank under any applicable bankruptcy,
insolvency or other similar law (including any Indonesian
law) or otherwise, obtain payment (voluntary or involuntary)
in respect of any Promissory Note held by it as a result of
which the unpaid principal portion of the Promissory Notes
held by it shall be proportionately less than the unpaid
principal portion of the Promissory Notes held by any other
Bank, it shall be deemed to have simultaneously purchased
from such other Bank at face value a participation in the
Promissory Notes held by such other Bank, so that the
aggregate unpaid principal amount of the Promissory Notes
and participations in Promissory Notes held by each Bank
shall be in the same proportion to the aggregate unpaid
principal amount of all Promissory Notes then outstanding as
the principal amount of the Promissory Notes held by it
prior to such exercise of banker's lien, setoff or counterclaim
was to the principal amount of all Promissory Notes
outstanding prior to such exercise of banker's lien, setoff
or counterclaim; provided, however, that if any such
purchase or purchases or adjustments shall be made pursuant
to this Section and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustment
restored without interest. FI and each Guarantor expressly
consents to the foregoing arrangements and agrees that any
Bank holding a participation in a Promissory Note deemed to
have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any
and all moneys owing hereunder by FI or such Guarantors to
such Bank as fully as if such Bank had made a Loan directly
to FI in the amount of such participation.
SECTION 3.17. Payments. (a) Except as otherwise
provided in this Agreement, all payments and prepayments to
be made by FI or either Guarantor to the Banks hereunder,
whether on account of Commitment Fees, payment of principal
or interest on the Promissory Notes or other amounts at any
time owing hereunder, shall be made to the Agent at its
Domestic Office for the account of the several Banks in
immediately available funds. All such payments shall be
made to the Agent as aforesaid not later than 10:30 a.m.,
New York City time, on the date due; and funds received
after that hour shall be deemed to have been received by the
Agent on the following Business Day.
(b) As promptly as possible, but no later than
2:00 p.m., New York City time, on the date of each borrowing,
each Bank participating in the Loans made on such date
shall pay to the Agent such Bank's Applicable Percentage of
such Loan plus, if such payment is received by the Agent
after 2:00 p.m., New York City time, on the date of such
borrowing, interest at a rate per annum equal to the rate in
effect on such day, quoted by the Agent at its Domestic
Office, for the overnight "sale" to such Bank of Federal
funds. At the time of, and by virtue of, such payment, such
Bank shall be deemed to have made its Loan in the amount of
such payment. The Agent agrees to pay any moneys, including
such interest, so paid to it by the lending Banks promptly,
but no later than 3:00 p.m., New York City time, on the date
of such borrowing, to FI in immediately available funds.
(c) If any payment of principal, interest,
Commitment Fee or any other amount payable to the Banks
hereunder or under any Promissory Note shall fall due on a
day that is not a Business Day, then (except in the case of
payments of principal of or interest on LIBO Rate Loans, in
which case the provisions of Section 3.5 shall apply) such
due date shall be extended to the next succeeding Business
Day, and interest shall be payable on principal in respect
of such extension.
(d) Unless the Agent shall have been notified by
FI prior to the date on which any payment or prepayment is
due hereunder (which notice shall be effective upon receipt)
that FI does not intend to make such payment or prepayment,
the Agent may assume that FI has made such payment or
prepayment when due and the Agent may in reliance upon such
assumption (but shall not be required to) make available to
each Bank on such date an amount equal to the portion of
such assumed payment or prepayment such Bank is entitled to
hereunder, and, if FI has not in fact made such payment or
prepayment to the Agent, such Bank shall, on demand, repay
to the Agent the amount made available to such Bank,
together with interest thereon in respect of each day during
the period commencing on the date such amount was made
available to such Bank and ending on (but excluding) the
date such Bank repays such amount to the Agent, at a rate
per annum equal to the rate, in effect on such day, quoted
by the Agent at its Domestic Office for the overnight "sale"
to the other Banks of Federal funds.
(e) All payments of the principal of or interest
on the Loans or any other amounts to be paid to any Bank,
the Agent or the FI Trustee under this Agreement or any of
the other Loan Documents shall be made in Dollars, without
reduction by reason of any currency exchange expense.
SECTION 3.18. U.S. Taxes. (a) Except as
required by law, any and all payments by FI hereunder shall
be made, in accordance with Section 3.17, free and clear of
and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto imposed by the
United States or any political subdivision thereof,
excluding taxes imposed on the net income of the Agent or
any Bank (or any Transferee) and franchise taxes imposed on
the Agent or any Bank (or Transferee) (all such nonexcluded
taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes").
If as a result of a Change in Tax Law FI shall be required
by law to deduct any Taxes from or in respect of any sum
payable hereunder to the Banks (or any Transferee) or the
Agent, (i) the sum payable shall be increased by the amount
necessary so that after making all required deductions
(including deductions applicable to additional sums payable
under this Section 3.18) such Bank (or Transferee) or the
Agent (as the case may be) shall receive an amount equal to
the sum it would have received had no such deductions been
made, (ii) FI shall make such deductions and (iii) FI shall
pay the full amount deducted to the relevant taxing
authority or other Governmental Authority in accordance with
applicable law; provided, however, that no Transferee of any
Bank shall be entitled to receive any greater payment under
this Section 3.18 than such Bank would have been entitled to
receive with respect to the rights assigned, participated or
otherwise transferred unless such assignment, participation
or transfer shall have been made at a time when the circumstances
giving rise to such greater payment did not exist.
"Change in Tax Law" means as to each Bank (or
Transferee) the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law
(or in the application or official interpretation of any
law), including an amendment, modification or revocation of
an applicable tax treaty or a change in official position
regarding the application or interpretation thereof,
occurring after the Amendment Closing Date.
(b) Within 30 days after the date of any payment
of Taxes withheld by FI in respect of any payment to any
Bank (or Transferee other than a participation holder) or
the Agent, FI will furnish to the Agent, at its address
referred to on the signature page, the original or a
certified copy of a receipt evidencing payment thereof.
(c) At the time it becomes a party to this
Agreement or a Transferee, each Bank (or Transferee) that is
organized under the laws of a jurisdiction outside the
United States shall deliver to FI such certificates,
documents or other evidence, as required by the Code or
Treasury Regulations issued pursuant thereto, including
Internal Revenue Service Form 1001 or Form 4224 and any
other certificate or statement of exemption required by
Treasury Regulation Section 1.1441-1, 1.1441-4 or 1.1441-6(c)
or any subsequent version thereof or successors
thereto, properly completed and duly executed by such Bank
(or Transferee) establishing that such payment is (i) not
subject to United States Federal withholding tax under the
Code because such payment is effectively connected with the
conduct by such Bank (or Transferee) of a trade or business
in the United States or (ii) totally exempt from United
States Federal withholding tax. Unless FI and the Agent
have received forms or other documents satisfactory to them
indicating that such payments hereunder or under the
Promissory Notes are not subject to United States Federal
withholding tax FI or the Agent shall withhold taxes from
such payments at the applicable statutory rate.
(d) FI shall not be required to pay any
additional amounts to any Bank (or Transferee) in respect of
United States Federal withholding tax pursuant to paragraph
(a) above if the obligation to pay such additional
amounts would not have arisen but for a failure by such Bank
(or Transferee) to comply with the provisions of paragraph
(c) above.
(e) Any Bank (or Transferee) claiming any additional
amounts payable pursuant to this Section 3.18 shall
give notice to the Agent and FI within 90 days of the Change
in Tax Law and use reasonable efforts (consistent with legal
and regulatory restrictions) to file any certificate or
document requested by FI to change the jurisdiction of its
applicable lending office if the making of such a filing or
change would avoid the need for or reduce the amount of any
such additional amounts which may thereafter accrue and
would not, in the sole determination of such Bank, be
otherwise disadvantageous to such Bank (or Transferee). The
failure of any Bank (or Transferee) to give the required 90
day notice shall excuse FI from its obligation to pay
additional amounts pursuant to this Section 3.18 incurred
prior to the giving of such notice.
(f) Without prejudice to the survival of any
other agreement contained herein, the agreements and obligations
contained in this Section 3.18 and Section 3.19 shall
survive the payment in full of the principal of and interest
on all Loans made hereunder.
SECTION 3.19. Indonesian Taxes. (a) FI shall
pay when due all Indonesian Taxes.
(b) FI shall indemnify the Agent, the FI Trustee
and each Bank (or Transferee) against, and shall reimburse
the Agent, the FI Trustee and each Bank (or Transferee) upon
demand for, any Indonesian Taxes paid by the Agent, the FI
Trustee or such Bank (or Transferee) and any loss,
liability, claim or expense (including interest, penalties,
fines, surcharges and legal fees) which the Agent, the FI
Trustee or such Bank may incur at any time arising out of or
in connection with any failure of FI to make any payments of
Indonesian Taxes when due.
(c) All payments on account of the principal of
or interest on the Loans made to FI, the Promissory Notes of
FI and all other amounts payable by FI to or for the account
of any Bank (or Transferee) or the Agent hereunder
(including amounts payable under Section 3.19(a) or 3.19(b))
or to or for the FI Trustee under the FI Security Documents
and to any of them under any other Loan Document shall be
made free and clear of and without reduction by reason of
any Indonesian Taxes. In the event that FI is required by
any applicable law, decree or regulation to deduct or
withhold Indonesian Taxes from any amounts payable on, under
or in respect of this Agreement or any other Loan Document,
FI shall make the required deduction or withholding,
promptly pay the amount of such Indonesian Taxes to the
appropriate taxing authorities and pay to the Agent such
additional amounts as may be required, after the deduction
or withholding of Indonesian Taxes, to enable each Bank (or
Transferee), the FI Trustee or the Agent to receive from FI
on the due date thereof, an amount equal to the full amount
stated to be payable to such Bank (or Transferee), the FI
Trustee or the Agent under this Agreement or any other
applicable Loan Document.
(d) Without in any way affecting FI's obligations
under the other provisions of this Section 3.19, FI shall
furnish to the Agent the originals or certified copies of
all tax receipts in respect of each payment, deduction or
withholding of Indonesian Taxes required to be made by
applicable laws or regulations, within 45 days after the
date on which each payment under this Agreement or any other
Loan Document subject to Indonesian Taxes is made, and FI
shall, at the request of any Bank (or Transferee), the FI
Trustee or the Agent, promptly furnish to such Bank (or
Transferee), the FI Trustee or the Agent any other
information, documents and receipts that such Bank (or
Transferee), the FI Trustee or the Agent may require to
establish to its satisfaction that full and timely payment
has been made of all Indonesian Taxes required to be paid
hereunder.
(e) FI will notify the Banks (through the Agent)
promptly upon becoming aware of the application or
imposition, or scheduled future application or imposition,
of Indonesian Taxes; and each Bank (if not theretofore
notified by FI) will notify FI of any such application or
imposition which becomes known to its officers then
supervising the Loans of such Bank hereunder as part of
their normal duties, and of any change of its lending office
or establishment or closing of a branch in Indonesia by such
Bank which would give rise to the application or imposition
of Indonesian Taxes.
ARTICLE IV
Representations and Warranties
SECTION 4.1. Representations and Warranties.
(i) FTX represents and warrants with respect to itself and
FRP, (ii) the Guarantors and FI jointly and severally
represent with respect to FI and (iii) the Guarantors
jointly and severally represent with respect to FCX, in each
case to each of the Banks, as follows:
(a) Organization, Powers. Each of FTX, each
Major Subsidiary and FCX (i) is duly organized, validly
existing and in good standing under the laws of the
State of Delaware and, in the case of FI, the laws of
the Republic of Indonesia, (ii) has the requisite power
and authority to own its property and assets (and, in
the case of FI, has the requisite licenses to use real
property not owned) and to carry on its business as now
conducted and as proposed to be conducted, and (iii) is
qualified to do business in every jurisdiction where
such qualification is required, except where the
failure so to qualify would not have a material adverse
effect on its condition, financial or otherwise. Each
of FTX, FI and FCX has the power to execute, deliver
and perform its obligations under this Agreement and
the other Loan Documents to which it is or is to be a
party, and FI has the power to borrow hereunder and to
execute and deliver the Promissory Notes to be
delivered by it. Each of FTX, each Major Subsidiary
and FCX has all requisite corporate power, and has all
material governmental licenses, authorizations, consents
and approvals necessary to own its own assets and
carry on its business as now being or as proposed to be
conducted.
(b) Authorization. The execution, delivery and
performance of this Agreement (including, without
limitation, performance of the obligations set forth in
Section 5.1(h)) and the other Loan Documents to which
it is or is to be, a party and the borrowings hereunder
(i) have been duly authorized by all requisite
corporate and, if required, stockholder action on the
part of FI or the applicable Guarantor, as the case may
be, and (ii) will not (A) violate (x) any Governmental
Rule or the certificate or articles of incorporation or
other constitutive documents or the By-laws or
regulations of such Person or (y) any provisions of any
indenture, agreement or other instrument to which such
Person is a party, or by which such Person or any of
their respective properties or assets are or may be
bound, (B) 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 indenture, agreement or other
instrument referred to in (ii)(A)(y) above or
(C) result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any
property or assets of such Person, except as contemplated
by the Pledge Agreement, the Security Agreement
and the FI Security Documents.
(c) Governmental Approval. Except for those
consents, approvals and registrations listed on
Schedule 4.1(c) hereto, each of which has been obtained
and is in full force and effect, no registration with
or consent or approval of, or other action by, any
Governmental Authority is or will be required in
connection with the execution, delivery and performance
by FI or either Guarantor, as appropriate, of this
Agreement or any other Loan Document to which it is, or
is to be, a party or the borrowings hereunder by FI.
Other than routine authorizations, permissions or
consents which are of a minor nature and which are
customarily granted in due course after application or
the denial of which would not materially adversely
affect the business, financial condition or operations
of any Guarantor or Major Subsidiary, such Person has
all franchises, licenses, certificates, authorizations,
approvals or consents from all national, state and
local governmental and regulatory authorities required
to carry on its business as now conducted and as
proposed to be conducted.
(d) Enforceability. This Agreement and each of
the other Loan Documents to which it is a party
constitutes a legal, valid and binding obligation of FI
and each Guarantor, as applicable, and the Pledge
Agreement, the Security Agreement and each other Loan
Document to be entered into after the Amendment Closing
Date will, upon its execution and delivery, constitute
the legal, valid and binding obligations of FI or such
Guarantor, as applicable, in each case enforceable in
accordance with its respective terms (subject, as to
the enforcement of remedies against such Person, to
applicable bankruptcy, reorganization, insolvency,
moratorium and similar laws affecting creditors' rights
against such Person generally in connection with the
bankruptcy, reorganization or insolvency of such Person
or a moratorium or similar event relating to such
Person).
(e) Financial Statements. FTX has heretofore
furnished to each of the Banks consolidated balance
sheets and statements of income and changes in retained
earnings and cash flow as of and for the fiscal years
ended December 31, 1991 and 1992, all audited and
certified by Arthur Andersen & Co., independent public
accountants, included in FTX's Annual Report on
Form 10-K for the year ended December 31, 1992 (the
"1992 Form 10-K"), and unaudited consolidated balance
sheets and statements of income and cash flow as of and
for the fiscal quarter ended March 31, 1993 included in
FTX's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1993. In addition, FTX has heretofore
furnished to each of the Banks consolidated balance
sheets and statements of income and cash flow for each
Major Subsidiary and FCX as of and for the fiscal years
ended December 31, 1991 and 1992, all audited and
certified by Arthur Andersen & Co and unaudited
consolidated balance sheets and statements of income
and cash flow for each Major Subsidiary and FCX as of
and for the fiscal quarter ended March 31, 1993. All
such balance sheets and statements of income and cash
flow present fairly the financial condition and results
of operations of FTX and the Subsidiaries or of either
Major Subsidiary or FCX, as of the dates and for the
periods indicated. Such financial statements and the
notes thereto disclose all material liabilities, direct
or contingent, of FTX and the Subsidiaries or of either
Major Subsidiary or FCX, as of the dates thereof which
are required to be shown on financial statements
prepared in accordance with GAAP. The financial
statements referred to in this Section 4.1(e) have been
prepared in accordance with GAAP. There has been no
material adverse change since December 31, 1992, in the
businesses, assets, operations, prospects or condition,
financial or otherwise, of (i) FTX, (ii) FRP, (iii) FI,
(iv) FCX or (v) FTX and the Subsidiaries taken as a
whole.
(f) Litigation; Compliance with Laws; etc.
(i) Except as disclosed in the 1992 Form 10-K and any
subsequent reports filed as of 20 days prior to the
Amendment Closing Date with the SEC on Form 10-Q or
Form 8-K which have been delivered to the Banks, there
are no actions, suits or proceedings at law or in
equity or by or before any governmental instrumentality
or other agency or regulatory authority now pending or,
to the knowledge of FTX, threatened against or
affecting FTX or any Subsidiary or the businesses,
assets or rights of FTX or any Subsidiary (i) which
involve this Agreement or any of the other Loan
Documents or any of the transactions contemplated
hereby or thereby or the collateral for the Loans
(including, in the case of FI, the Contract of Work) or
(ii) as to which there is a reasonable possibility of
an adverse determination and which, if adversely determined,
could, individually or in the aggregate, materially
impair the ability of FTX, either Major Subsidiary
or FCX to conduct its business substantially as now
conducted, or materially and adversely affect the
businesses, assets, operations, prospects or condition,
financial or otherwise, of FTX, either Major Subsidiary
or FCX, or impair the validity or enforceability of, or
the ability of FTX, either Major Subsidiary or FCX to
perform its obligations under this Agreement or any of
the other Loan Documents to which such Person is a
party.
(ii) Neither FTX nor any Subsidiary is in
violation of any law, or in default with respect to any
judgment, writ, injunction, decree, rule or regulation
of any court or governmental agency or instrumentality,
where such violation or default could have a materially
adverse effect on the businesses, assets, operations or
condition, financial or otherwise, of FTX, either Major
Subsidiary or FCX. Without limitation of the
foregoing, FTX and each Subsidiary has complied with
all Governmental Rules (including, in the case of FI,
all such requirements under the Contract of Work and
under environmental Governmental Rules of Indonesia)
relating to environmental pollution or to environmental
regulation or control or to employee health or safety
where any such noncompliance could have a materially
adverse effect on the businesses, assets, operations or
condition, financial or otherwise, of FTX, either Major
Subsidiary or FCX. Neither FTX nor any Subsidiary has
received notice of any material failure so to comply.
FTX's and the Subsidiaries' plants do not handle any
hazardous wastes, hazardous substances, hazardous
materials, toxic substances, toxic pollutants or
substances similarly denominated, as those terms or
similar terms are used in the Resource Conservation and
Recovery Act, the Comprehensive Environmental Response
Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act,
the Clean Air Act, the Clean Water Act or any other
applicable law relating to environmental pollution or
employee health and safety (and, in the case of FI, the
equivalent substances to which the Contract of Work or
the environmental Governmental Rules of Indonesia
apply), in violation of any law or any regulations
promulgated pursuant thereto where any such violation
could have a materially adverse effect on the
businesses, assets, operations or condition, financial
or otherwise, of FTX, either Major Subsidiary or FCX.
FTX is aware of no events, conditions or circumstances
involving environmental pollution or contamination or
employee health or safety that could reasonably be
expected to result in material liability on the part of
FTX or any Subsidiary.
(g) Title, etc. FTX, each Major Subsidiary and
FCX have good and valid title to their respective
material properties, assets and revenues (exclusive of
oil, gas and other mineral properties on which no
development or production activities are being
conducted following discovery of commercially exploitable
reserves), free and clear of all Liens except such
as are permitted by Section 5.2(d) and except for
covenants, restrictions, rights, easements
and minor irregularities in title which do not
individually or in the aggregate interfere with the
occupation, use and enjoyment by FTX or the respective
Subsidiary of such properties and assets in the normal
course of business as presently conducted or materially
impair the value thereof for use in such business and
FI has the requisite licenses under the Governmental
Rules of Indonesia to use the real property on which it
conducts its business.
(h) Federal Reserve Regulations; Use of Proceeds.
(i) Neither FTX nor any Subsidiary is engaged
principally, or as one of its important activities, in
the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(ii) No part of the proceeds of the Loans will be
used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose
which entails a violation of, or which is inconsistent
with, the provisions of the Regulations of the Board,
including, without limitation, Regulations G, U or X
thereof.
(iii) FI will use the proceeds of all Loans made to
it for its general corporate purposes, including the
making of acquisitions.
(iv) As of each date when this representation is
made or deemed made, either FTX (i) owns directly and
beneficially Margin Stock with a current market value
(within the meaning of Regulation U) at least equal to
twice the aggregate amount of credit secured, directly
or indirectly (within the meaning of Regulation U), by
such Margin Stock on such date (after giving effect to
any Credit Event, FTX Credit Event, borrowing pursuant
to the KfW Credit Agreement or Borrowing (as such term
is defined in the FM Credit Agreement) or other
increase in such credit occurring on such date and to
any other obligations secured by such Margin Stock) or
(ii) owns directly and beneficially assets other than
Margin Stock ("Other Collateral") with a current market
value (within the meaning of Regulation U) at least
equal to twice the aggregate amount of credit secured,
directly or indirectly (within the meaning of
Regulation U), by such Other Collateral on such date
(after giving effect to any Credit Event, FI Credit
Event, borrowing pursuant to the KfW Credit Agreement
or Borrowing (as such term is defined in the FM Credit
Agreement) or other increase in such credit occurring
on such date and to any other obligations secured by
such Other Collateral. There are no Liens on such
Margin Stock or such Other Collateral, as the case may
be (other than those created by the Pledge Agreement),
nor is there any Debt or any other obligation (other
than the loans under the FM Credit Agreement, the
Corporate Group Loans, the loans made pursuant to the
KfW Credit Agreement, the Permitted Secured Swaps, the
Pel-Tex Debt and Permitted Swaps (as such terms are
defined in the FM Credit Agreement)) secured, directly
or indirectly (within the meaning of Regulation U), by
such Margin Stock or Other Collateral.
(i) Taxes. FTX and the Subsidiaries have filed
or caused to be filed all Federal, state and local tax
returns and all Indonesian tax returns which are
required to be filed by them, and have paid or caused
to be paid all taxes shown to be due and payable on
such returns or on any assessments received by any of
them, other than any taxes or assessments the validity
of which FTX or any Subsidiary is contesting in good
faith by appropriate proceedings, and with respect to
which FTX or such Subsidiary shall, to the extent
required by GAAP, have set aside on its books adequate
reserves.
(j) Employee Benefit Plans. FTX and each of its
ERISA Affiliates is in compliance in all material
respects with the applicable provisions of ERISA and
the regulations and published interpretations thereunder.
No Reportable Event has occurred with respect to
any Plan as to which FTX or any ERISA Affiliate was
required to file a report with the PBGC, and the
present value of all vested benefit liabilities under
each Plan maintained by FTX or an ERISA Affiliate
(based on those assumptions used to fund such Plan) did
not, as of the last annual valuation date applicable
thereto, exceed by $25,000,000 the value of the assets
of such Plan. Neither FTX nor any ERISA Affiliate has
incurred any Withdrawal Liability that materially
adversely affects the financial condition of FTX and
its ERISA Affiliates taken as a whole. Neither FTX nor
any ERISA Affiliate has received any notification that
any Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA,
and no Multiemployer Plan is reasonably expected to be
in reorganization or to be terminated, where such
reorganization has resulted or can reasonably be
expected to result in an increase in the contributions
required to be made to such Plan that would materially
and adversely affect the financial condition of FTX and
its ERISA Affiliates taken as a whole.
(k) Investment Company Act. Neither FTX nor any
Subsidiary is an "investment company" as defined in, or
subject to regulation under, the Investment Company Act
of 1940.
(l) Public Utility Holding Company Act. Neither
FTX nor any Subsidiary is a "holding company", or a
"subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as
amended.
(m) Subsidiaries. Schedule I constitutes a
complete and correct list, as of the Amendment Closing
Date or the date of any update thereof required by Section
5.1(a)(6), of all Restricted Subsidiaries with at
least $1,000,000 in total assets, indicating the
jurisdiction of incorporation or organization of each
corporation or partnership and the percentage of shares
or units owned on such date directly or indirectly by
FTX in each. FTX owns on such date, free and clear of
all Liens, the percentage of voting shares or partnership
interests outstanding of the Subsidiaries shown on
Schedule I, and all such shares or partnership interests
are validly issued and fully paid.
(n) Assigned Agreements. Schedule 4.1(n) is a
complete and correct list, as of the Amendment Closing
Date, of each Long-Term Concentrate Sales Agreement
(copies of which have heretofore been furnished to the
Agent). FI is not in default in any material respect
in its obligations under any Assigned Agreement nor is
any counterparty to any such agreement in default in
its obligations in any respect that could materially
and adversely affect the ability of FI to perform its
obligations under the Corporate Group Facility.
(o) FI Security Documents. The Liens created by
the FI Security Documents are in full force and effect
and constitute first priority (except for Liens
expressly permitted by Section 5.2(d), perfected
security interests in favor of the FI Trustee for the
benefit of the Banks in the property and assets stated
to be subject to each such FI Security Document.
(p) No Material Misstatements. No information,
report (including any Borrowing Base Certificate and
any exhibit, schedule or other attachment thereto or
other document delivered in connection therewith),
financial statement, exhibit or schedule prepared or
furnished by FI or FTX to the Agent, any Bank or the FI
Trustee in connection with this Agreement or any of the
other Loan Documents or included therein contained or
contains any material misstatement of fact or omitted
or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances
under which they were made, not misleading.
ARTICLE V
Covenants
SECTION 5.1. Affirmative Covenants of FTX. So
long as any Bank shall have any Loan Exposure or any
commitment to make a Loan hereunder, FTX agrees that, unless
the Required Banks shall have otherwise consented in
writing:
(a) Financial Statements, etc. FTX shall furnish
each Bank:
(1) within 95 days after the end of each
fiscal year of FTX, a consolidated balance sheet
of FTX and its Subsidiaries, of each Major
Subsidiary and of FCX as at the close of such
fiscal year and consolidated statements of income
and changes in retained earnings or partners'
capital and cash flow of FTX and the Subsidiaries,
of each Major Subsidiary and of FCX for such year,
with the opinion thereon of Arthur Andersen & Co.
or other independent public accountants of
national standing selected by FTX;
(2) within 50 days after the end of each of
the first three quarters of each fiscal year of
FTX, a consolidated balance sheet of FTX and its
Subsidiaries, of each Major Subsidiary and of FCX
as at the end of such quarter and consolidated
statements of income of FTX and the Subsidiaries,
of each Major Subsidiary and of FCX for such
quarter and for the period from the beginning of
the fiscal year to the end of such quarter,
certified by the Treasurer or other authorized
financial or accounting officer of FTX;
(3) promptly after their becoming available,
(a) copies of all financial statements, reports
and proxy statements which FTX, either Major
Subsidiary or FCX shall have sent to its stockholders
generally, (b) copies of all registration
statements (excluding registration statements
relating to employee benefit plans) and regular
and periodic reports, if any, which FTX, either
Major Subsidiary or FCX shall have filed with the
SEC, or any governmental agency substituted
therefor, and (c) if requested by any Bank, copies
of each annual report filed with any governmental
agency pursuant to ERISA with respect to each Plan of
FTX or any of the Subsidiaries;
(4) within 95 days after the end of each
fiscal year of FTX, a certificate by the Treasurer
or other authorized Financial Officer of FTX, to
the effect that no Event of Default or Default has
occurred and is continuing, or if any Event of
Default or Default has occurred and is continuing,
describing the same in reasonable detail;
(5) promptly upon the occurrence of any
Termination Event, Event of Default, or any
material default in the performance of any of its
agreements containeduineSectiona5.1dora5.2,uther any other Loan
Document (other than the FTX Credit Agreement), or
the commencement of any proceeding regarding FTX
or any Subsidiary under any Federal or state
bankruptcy law, notice thereof, describing the
same in reasonable detail;
(6) at the time of provision of the financial
statements referred to in clauses (1) and (2)
above, an update of Schedule I to correct, add or
delete any required information;
(7) all the financial statements and other
documents required to be furnished to the
FTX Lenders pursuant to Section 4.1(a) of the
FTX Credit Agreement and, so long as the guarantee
by FTX of FM Properties' obligations under the FM
Credit Agreement is in effect, all the financial
statements and other documents required to be
furnished to the FM Lenders pursuant to Section
4.1(a) of the FM Credit Agreement; provided,
however, that FTX shall not be required to furnish
duplicate copies of such financial statements or
other documents to Banks which are also
FTX Lenders or FM Lenders, as applicable; and
(8) from time to time, such further information
regarding the business, affairs and financial
condition of FTX or any Subsidiary as any Bank may
reasonably request.
At the time FTX furnishes financial statements pursuant
to the foregoing clauses (1) and (2), FTX will also
furnish each Bank a certificate by the Treasurer or
other authorized Financial Officer of FTX setting forth
the calculation of: (a) the current ratios as
determined in accordance with Section 5.2(e), (b) the
fixed charge ratios as determined in accordance with
Section 5.2(f), (c) the Cash Flow Ratio, (d) if the
Facility is then an HLT, the calculation of the ratio
set forth in Section 5.2(q) and (e) the Available
Borrowing Base; provided that the Cash Flow Ratio shall
be provided within 50 days of the end of each fiscal
quarter.
(b) Taxes and Claims. FTX shall, and shall cause
each Subsidiary to, pay and discharge all taxes,
assessments and governmental charges or levies,
including Indonesian Taxes, imposed upon it or upon its
income or profits, or upon any property belonging to
it, prior to the date on which material penalties
attach thereto; provided that neither FTX nor any
Subsidiary shall be required to pay any such tax,
assessment, charge or levy, the payment of which is
being contested in good faith by proper proceedings and
with respect to which FTX or such Subsidiary shall
have, to the extent required by GAAP, set aside on its
books adequate reserves.
(c) Maintenance of Existence; Conduct of Business.
FTX shall, and shall cause each Major Subsidiary
and FCX to, preserve and maintain its corporate
existence and all its rights, privileges and franchises
necessary or desirable in the normal conduct of its
business; provided that nothing herein shall prevent
any transaction permitted by Section 5.2(c).
(d) Compliance with Applicable Laws. FTX shall,
and shall cause each Subsidiary to, comply with the
requirements of all applicable laws, rules, regulations
and orders of any Governmental Authority, a breach of
which would materially and adversely affect the
consolidated financial condition or business of FTX,
either Major Subsidiary or FCX, except where contested
in good faith and by proper proceedings and with
respect to which FTX or such Subsidiary shall have, to
the extent required by GAAP, set aside on its books
adequate reserves.
(e) Litigation. FTX shall promptly give to each
Bank notice in writing of all litigation and all
proceedings before any governmental or regulatory
agencies or arbitration authorities affecting FTX or
any Subsidiary, except those which, if adversely
determined, do not relate to the Loan Documents and
which would not have a material adverse effect on the
business, assets, operations or financial condition of
any Guarantor or Major Subsidiary or the ability of FI
or either Guarantor to comply with their obligations
under the Loan Documents.
(f) ERISA. FTX shall, and shall cause each
Subsidiary to, comply in all material respects with the
applicable provisions of ERISA and furnish to the Agent
(i) as soon as possible, and in any event within
30 days after any Responsible Officer of FTX or any
ERISA Affiliate knows or has reason to know that any
Reportable Event with respect to any Plan has occurred
that alone or together with any other Reportable Event
with respect to the same or another Plan could reasonably
be expected to result in liability of FTX to the
PBGC in an aggregate amount exceeding $10,000,000, a
statement of a Financial Officer of FTX setting forth
details as to such Reportable Event and the action that
FTX proposes to take with respect thereto, together
with a copy of the notice of such Reportable Event, if
any, given to the PBGC, (ii) promptly after receipt
thereof, a copy of any notice FTX or any ERISA
Affiliate may receive from the PBGC relating to the
intention of the PBGC to terminate any Plan or Plans or
to appoint a trustee to administer any such Plan,
(iii) within 10 days after a filing with the PBGC
pursuant to Section 412(n) of the Code of a notice of
failure to make a required installment or other payment
with respect to a Plan, a statement of a Financial
Officer of FTX setting forth details as to such failure
and the action that FTX proposes to take with respect
thereto, together with a copy of such notice given to
the PBGC and (iv) promptly and in any event within 30
days after receipt thereof by FTX or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, a
copy of each notice received by FTX or any ERISA
Affiliate concerning the imposition of Withdrawal
Liability by a Multiemployer Plan.
(g) [Intentionally left blank]
(h) Security. (i) FI at all times shall comply
with the provisions of the FI Security Documents and
maintain in full force and effect all the rights,
powers and benefits of the FI Trustee under the FI
Security Documents in accordance with their terms,
including (x) the validity and effectiveness of the
powers of attorney granted by the Surat Kuasa and the
Fiduciary Power and the fiduciary transfers effectuated
by the Fiduciary Transfer and the Fiduciary Assignment
and (y) maintenance of the security interest of the FI
Trustee in the collateral required to be subjected to
the Liens created by the FI Security Documents as a
perfected first priority security interest as provided
therein; and
(ii) in the event (A) the aggregate principal
amount of outstanding Corporate Group Loans exceeds for
a period of 20 or more consecutive days the Available
Borrowing Base, (B) an Event of Default shall occur and
continue for a period of 20 or more consecutive days,
or (C) any of the FM Lenders, the Pel-Tex Lenders or
the FTX Lenders shall receive or be entitled to receive
and have requested receipt of security or liens in or
on any property of FTX or any of its Subsidiaries
(other than the initial mortgages and security
interests granted by FTX pursuant to Section 5.1(d) of
the FM Credit Agreement and any security interests
granted by FI to the FTX Lenders) as security for any
amount owing under the FM Credit Agreement, the Pel-Tex
Agreements or the Pel-Tex Bank Agreement or the FTX
Credit Agreement, FTX and each of its wholly-owned
Restricted Subsidiaries (other than FRP, FCX and FI and
any Subsidiary of any of them) shall, subject to the
FTX Intercreditor Agreement, provide the Banks, as
security for the amounts owed by FTX hereunder, with
the same security interests and pledges, in each case
upon the same terms, as are provided by FTX and its
wholly-owned Restricted Subsidiaries to the FTX
Lenders, as set forth in Section 5.1(h)(ii)(ii) of the
FTX Credit Agreement.
(i) Insurance. FTX and each Restricted
Subsidiary shall (i) keep its insurable properties
adequately insured at all times; (ii) maintain such
other insurance, to such extent and against such risks,
including fire, flood and other risks insured against
by extended coverage, as is customary with companies in
the same or similar businesses; (iii) maintain in full
force and effect public liability insurance against
claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use
of any properties owned, occupied or controlled by it
in such amount as it shall reasonably deem necessary;
and (iv) maintain such other insurance as may be
required by law. The proceeds of any political risk
insurance of FCX shall be applied promptly to the
prepayment of the Loans of FI and the Loans pursuant to
the FI Credit Agreement (it being understood that the
allocation of such prepayments among such Loans shall
be determined solely by FCX). Prepayments pursuant to
this Section 5.1(i) shall not be subject to
Section 3.14 unless the occurrence that entitles FCX to
such insurance proceeds results in an Event of Default.
(j) Access to Premises and Records. FTX and each
Subsidiary shall maintain financial records in accordance
with GAAP, and, at all reasonable times and as
often as any Bank may reasonably request, permit
representatives of any Bank to have access to its
financial records and its premises and to the records
and premises of any of its subsidiaries, if any, and to
make such excerpts from such records as such representatives
deem necessary and to discuss its affairs,
finances and accounts with its officers and its independent
certified public accountants or other parties
preparing consolidated or consolidating statements for
it or on its behalf.
(k) FI Security Arrangements. FI will
(i) promptly assign all Long-Term Concentrate Sales
Agreements and the proceeds from all FI Receivables
Purchase Agreements in effect from time to time to the
FI Trustee under, and in accordance with, Article III
of the FI Trust Agreement and (ii) furnish to the Agent
and each Bank copies of each Long-Term Concentrate
Sales Agreement and FI Receivables Purchase Agreement
entered into after the Amendment Closing Date, and each
amendment, waiver or supplement to any Concentrate
Sales Agreement which after such amendment, waiver or
supplement would be a Long-Term Concentrate Sales
Agreement, in each case promptly after the execution
and delivery thereof. FI may permit Long-Term
Concentrate Sales Agreements to expire or terminate in
accordance with their terms.
(l) Protection of Contract Rights. FI will not
terminate, suspend, amend or grant waivers of any
provisions of any of the Assigned Agreements or the FI
Security Documents without the prior written consent of
the Required Banks; provided, however, that FI may
amend or waive provisions in any Concentrate Sales
Agreement so long as such amendment or waiver will not
materially adversely affect the business, financial
condition or operations of FI or any rights of the FI
Trustee or the Banks. FI will promptly furnish to the
Banks and the Agent copies of any amendments to or
waivers or supplements of the Assigned Agreements and
the FI Security Documents. FI shall take all steps
necessary or advisable to protect its rights (and the
rights of the FI Trustee) under the Assigned Agreements
and FI Security Documents.
(m) Source of Interest. FI (i) will conduct
business so that interest paid on the Loans of FI to
any Bank (or Transferee) which is not a "related
person" to FTX within the meaning of
Section 861(c)(2)(B) of the Code as in effect on the
Amendment Closing Date will be deemed to be income from
sources without the United States within the meaning of
Sections 861(a)(1)(A) and 861(c) of the Code as in
effect on the Amendment Closing Date and (ii) will use
its best efforts (without undue cost) to conduct
business so that interest paid on the Loans of FI to
any Bank (or Transferee) which is not a related person
to FTX within the meaning of Section 861(c)(2)(B) of
the Code (as it may be amended or substituted after the
Amendment Closing Date) will be deemed to be income
from sources without the United States within the
meanings of Sections 861(a)(1)(A) and 861(c) of the
Code (as it may be amended or substituted after the
Amendment Closing Date).
(n) Further Assurances. FI and the Guarantors
shall, and shall cause its Subsidiaries to, execute any
and all further documents, financing statements,
agreements and instruments, and take all further
actions (including filing Uniform Commercial Code
financing statements and any Indonesian equivalents),
which may be required under applicable law, or which
the Required Banks, the Agent or the FI Trustee may
reasonably request, in order to effectuate the
transactions contemplated by this Agreement and the FI
Security Documents and in order to grant, preserve,
protect and perfect the validity and first priority of
the security interests created by the FI Security
Documents and, if and when executed, the Security
Agreement and the Pledge Agreement.
(o) Covenants regarding FI and FCX. FTX shall
cause FI and FCX to perform its covenants set forth in
Section 5.3.
SECTION 5.2. Negative Covenants of FTX. So long
as any Bank shall have any Loan Exposure or any commitment
to make a Loan hereunder, FTX agrees that, without the prior
written consent of the Required Banks:
(a) Conflicting Agreements. FTX shall not and
shall cause its Restricted Subsidiaries not to enter
into any agreement (other than this Agreement, the FTX
Credit Agreement and the KfW Credit Agreement)
containing any provision which would be violated or
breached by the performance of their obligations under
any Loan Document or under any instrument or document
delivered or to be delivered by them hereunder or
thereunder or in connection herewith or therewith,
including any agreement with any persons which would
prohibit or restrict (i) in the case of the Restricted
Subsidiaries, the payments of dividends or other
distributions (other than restrictions existing on the
Amendment Closing Date) or (ii) the ability of such
entities to create Liens on any of their assets (other
than assets which are subject to Liens permitted
pursuant to paragraphs (ii), (iii), (iv), (vi) , (vii)
and (viii) of Section 5.2(d) and extensions and
renewals and replacements thereof permitted pursuant to
Section 5.2(d)(xii)).
(b) Borrowing Base Limits. Except to the extent
expressly permitted by Section 2.4 of the FTX Credit
Agreement or Section 3.10(c), FTX shall not at any time
permit the sum of the Corporate Group Loan Exposure and
all Borrowing Base Debt to exceed the then effective
Borrowing Base.
(c) Consolidation or Merger; Disposition of
Assets and Capital Stock. FTX shall not, and shall not
permit any Restricted Subsidiary to, merge into or
consolidate with any corporation, or sell, lease,
transfer or otherwise dispose of all or any substantial
part of the assets of FTX or of any Restricted
Subsidiary, including, without limitation, the rights
of FI under the Contract of Work (except for (u) the
IMC-Agrico Transfer and investments permitted by
Section 5.2(r), (v) the ALatief-FI Transfer and
investments permitted by Section 5.2(s), the Power
Facilities Transfer and the transfer in respect of
Contract Area Block B referred to in Section 8.1(i),
(w) dispositions of accounts receivable, Permitted
Investments and inventory in the ordinary course of
business, provided that the proceeds of any sale of
accounts receivable by FI are deposited in the Sales
Proceeds Account (as defined in the FI Trust
Agreement), (x) dispositions of obsolete or worn-out
property, or real estate not used or useful in its
business, (y) subject to the last sentence of
Section 5.2(j) and to Sections 5.2(o) and (p),
dispositions of assets by FTX or a Restricted
Subsidiary to another Restricted Subsidiary or FTX and
subject to Section 5.2(l), dispositions of assets by a
Restricted Subsidiary to a Nonrestricted Subsidiary;
provided, however, that any Person through which FRP
owns any interest in IMC-Agrico shall at all times be a
Restricted Subsidiary, and (z) to the extent permitted
by Section 5.2(q), the payment of cash dividends by FTX
or any Restricted Subsidiary and dividends by FTX
consisting of stock or units of the Subsidiaries),
whether now owned or hereafter acquired; except that:
(i) FTX or any Restricted Subsidiary may
merge or liquidate any corporation (other than, in
the case of a Restricted Subsidiary, any Guarantor
or Major Subsidiary) into itself;
(ii) any Restricted Subsidiary (other than
FCX and either Major Subsidiary) may be merged
into any other corporation; provided that such
corporation, immediately following such merger,
shall be deemed a Restricted Subsidiary; and
(iii) subject to the last sentence of
Section 5.2(j), FTX or any Restricted Subsidiary
may sell or otherwise dispose of any assets or
securities of any Subsidiary; provided, however,
that the gross fair market value of the
consideration or other amounts payable to or
receivable by FTX or such Restricted Subsidiary
with respect to such sales or other dispositions
is deemed to be Net Proceeds;
provided, however, that in the case of a merger permitted
by clause (i) above, immediately thereafter and
giving effect thereto, FTX or, as the case may be, a
Restricted Subsidiary would be the surviving corporation
and, in the case of a merger permitted by
clause (i) or clause (ii) above or of any disposition
of assets or securities permitted by clause (iii)
above, no Default or Event of Default would,
immediately thereafter and giving effect thereto, have
occurred and be continuing. Each sale or other
disposition permitted by clause (iii) above shall be
permitted only if FTX or the respective Restricted
Subsidiary shall receive fair consideration therefor,
as determined by the Board of Directors of FTX or of
such Restricted Subsidiary, as the case may be. It is
understood and agreed that no transaction pursuant to a
Deemed Lease shall be considered a disposition of
assets within the meaning of this Section 5.2(c).
(d) Liens. FTX shall not, nor shall it permit
any Restricted Subsidiary to, create or suffer to exist
any Lien upon any of its respective properties,
revenues or assets, now owned or hereafter acquired,
securing any indebtedness or obligation, except:
(i) materialmen's, suppliers', tax and other
like Liens arising in the ordinary course of FTX's
or such Restricted Subsidiary's business securing
obligations which are not overdue or are being
contested in good faith by appropriate proceedings
and as to which adequate reserves have been set
aside on its books to the extent required by GAAP,
Liens arising in connection with workers'
compensation, unemployment insurance and progress
payments under government contracts, and other
Liens incident to the ordinary conduct of FTX's or
such Restricted Subsidiary's business or the
ordinary operation of property or assets and not
incurred in connection with the obtaining of any
Debt or Guarantee;
(ii) Liens on assets or properties not owned
as of the Amendment Closing Date by FTX or any
Restricted Subsidiary securing only Debt of FTX or
any such Restricted Subsidiary that is otherwise
without recourse to FTX or any such Restricted
Subsidiary or any of its or their properties or
assets; provided, however, that FTX complies with
Section 5.2(g)(v);
(iii) Liens, existing at the time of the
acquisition by FTX or any Restricted Subsidiary of
the majority of the capital stock or all the
assets of any other corporation or existing at the
time of the merger of any such corporation into
FTX or a Restricted Subsidiary, on such capital
stock or assets so acquired or on the assets of
the corporation so merged into FTX or such
Restricted Subsidiary; provided, however, that
such acquisition or merger (and the discharge of
such Liens referred to in the immediately
succeeding proviso) shall not otherwise result in
an Event of Default or Default; and provided
further that all such Liens shall be discharged
within 180 days after the date of the respective
acquisition or merger;
(iv) Liens securing Debt referred to in
Section 5.2(g)(x);
(v) Liens in favor of the Agent or the Banks
or in favor of the Collateral Agent as provided in
the FTX Intercreditor Agreement, Liens in favor of
the Pel-Tex Lenders as permitted by the FTX
Intercreditor Agreement, Liens, if any, in favor
of the FTX Agent or the FTX Lenders or in favor of
the Collateral Agent as provided in the FRP
Security Agreement, the FRP Pledge Agreement, the
FRP Subsidiary Security Agreement or the FRP
Subsidiary Pledge Agreement, each as defined in
the FTX Credit Agreement and Liens in favor of the
Banks, the FTX Lenders, and the FI Trustee under
the FI Security Documents, all as contemplated by
Section 5.1(h) of the FTX Credit Agreement;
(vi) Liens listed on Schedule 5.2(d) hereto
securing obligations of FTX or a Restricted
Subsidiary under Deemed Leases;
(vii) Liens securing the Debt referred to in
paragraphs (iv), (v), (viii) and (ix) of
Section 5.2(g);
(viii) Liens of lessors of property (in such
capacity) leased by FTX or a Restricted Subsidiary
pursuant to an Operating Lease, which Lien is
limited to the property leased thereunder;
(ix) the reciprocal collateral mortgages
granted by FRP on its interests in Main Pass 299
sulphur and oil and gas interests to its joint
venture partners;
(x) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and
other similar encumbrances incurred in the
ordinary course of business which, in the
aggregate, are not substantial in amount and do
not materially detract from the value of the
property subject thereto or interfere with the
ordinary conduct of the business of FTX or any of
its Subsidiaries;
(xi) Liens securing Permitted Secured Swaps
between FI and any Bank; and
(xii) extensions, renewals and replacements
of Liens referred to in paragraphs (i), (ii),
(iv), (vii), (viii), (ix), (x) and (xi) of this
Section 5.2(d); provided that any such extension,
renewal or replacement Lien shall be limited to
the property or assets covered by the Lien
extended, renewed or replaced and that the
obligations secured by any such extension, renewal
or replacement Lien shall be in an amount not
greater than the amount of the obligations secured
by the Lien extended, renewed or replaced.
(e) Current Ratios. FTX shall not fail to
maintain, as of the last day of each fiscal quarter,
consolidated current assets of FTX and its consolidated
Subsidiaries (other than Nonrestricted Subsidiaries but
including minority interests) in an amount at least
equal to the amount of consolidated current liabilities
of FTX and its consolidated Subsidiaries (other than
Nonrestricted Subsidiaries but including minority
interests) and each Major Subsidiary shall not fail to
maintain (on an individual, stand alone basis), on the
last day of each fiscal quarter, consolidated current
assets of it and its consolidated Subsidiaries (other
than Nonrestricted Subsidiaries but including minority
interests) at least equal to the amount of consolidated
current liabilities of it and its consolidated Subsidiaries
(other than Nonrestricted Subsidiaries but
including minority interests). For purposes hereof,
consolidated current assets and consolidated current
liabilities shall be determined in accordance with
GAAP, except that (i) investments in shares of corporations
(excluding shares which are, and which are held
as, marketable securities) and advances to Nonrestricted
Subsidiaries and other firms or companies in
which FTX has a material investment, direct or
indirect, or which have a direct or indirect material
investment in FTX, shall not be included in current
assets; (ii) current assets shall be increased by the
portion of the Unused Net Commitment Amount which,
under the terms of the Corporate Group Facility, will,
if not sooner terminated or drawn down by FI or any
Borrower (as defined in the FTX Credit Agreement),
remain outstanding for at least twelve months following
the time of determination; provided that if such
availability is required by any Borrower (as defined in
the FTX Credit Agreement) to comply with Section 5.2(e)
of the FTX Credit Agreement, such availability will be
considered to be a utilization of the Commitments (and
consequently unavailable to FI for purposes of this
paragraph (e)); and (iii) the current portion of long-term
Debt shall not be included in current liabilities.
(f) Fixed Charge Ratios. FTX and each Major
Subsidiary shall not permit its respective Fixed Charge
Ratio to be less than 1.25 to 1.00 at the end of any
fiscal quarter.
(g) Debt. Neither FTX nor any Restricted
Subsidiary shall incur, create, assume or permit to
exist any Debt of any of them except:
(i) (A) up to $373,000,000 aggregate principal
amount of FTX's 6.55% Convertible
Subordinated Notes Due 2001;
(B) $150,000,000 aggregate principal amount
of FTX's 10-7/8% Senior Subordinated Debentures
due 2001;
(C) $750,000,000 aggregate face amount of
FTX's Zero Coupon Convertible Subordinated
Debentures Due 2006.
(D) $1,035,000,000 aggregate face amount of
FCX's Liquid Yield Option Notes due 2011 (Zero
Coupon Subordinated Exchangeable Notes, "LYONS")
or, subject to Section 2.2(IV) of the FTX Credit
Agreement, unsecured refinancings thereof not
involving an increase in the aggregate principal
amount over the then accreted principal amount of
the LYONS outstanding;
(E) up to $75,000,000 aggregate principal
amount outstanding pursuant to the KfW Credit
Agreement; and
(F) up to $800,000,000 aggregate principal
amount outstanding pursuant to the FTX Credit
Agreement.
(ii) (A) Debt of FTX owing to a Subsidiary,
provided that such Debt is subordinated to the
Loans on the terms of Exhibit A hereto if the
original term of such Debt is in excess of six
months or could be extended at the option of FTX
beyond six months from the original date of such
Debt;
(B) Debt of a Major Subsidiary owing to FTX
so long as FTX does not have any Loans outstanding
(whether made before or after the incurrence of
Debt by such Major Subsidiary);
(C) subject to Sections 5.2(o) and (p), Debt
of FI owing to FCX or FCX owing to FI; and
(D) subject to Sections 5.2(o) and (p), Debt
of a Restricted Subsidiary other than a Major
Subsidiary owing to FTX or any other Restricted
Subsidiary;
(iii) Debt incurred by FTX in any amount and
Debt incurred by each Major Subsidiary not in
excess of $30,000,000 in the aggregate for such
Major Subsidiary, in each case pursuant to
commercial paper or uncommitted lines of credit
with commercial banks having a maturity of less
than six months;
(iv) purchase money indebtedness of FTX and
any Restricted Subsidiary incurred in the ordinary
course of business;
(v) Debt of FTX and any Restricted Subsidiary
secured by Liens described in Section 5.2(d)(ii)
that is otherwise nonrecourse to FTX and each
Restricted Subsidiary if not less than 20 days
prior to the date such Debt is incurred, created
or assumed FTX or such Restricted Subsidiary
delivers to the Required Banks the terms of such
Debt relating to the nonrecourse nature of such
Debt and the Required Banks have not, on or prior
to such date, given written notice to FTX or such
Restricted Subsidiary of their objection thereto;
(vi) Indebtedness for Borrowed Money (other
than Guarantees and Capitalized Leases) of FTX
that is subordinated to the Loans and FTX's
guarantee pursuant to Section 9.1 if (A) 30 days
prior to the incurrence of such Indebtedness for
Borrowed Money, FTX delivers to each Bank the
terms of the subordination provisions governing
such Indebtedness for Borrowed Money, (B) FTX has
not, prior to such incurrence, received notice
that Banks having Commitments (as defined in the
FTX Credit Agreement) representing at least 33-1/3%
of the aggregate Commitments under and as
defined in the FTX Credit Agreement have objected
to such subordination provisions and (C) such
Indebtedness for Borrowed Money has a maturity
date of not less than ten years, with no scheduled
repayments or amortization for at least ten years
after such Indebtedness for Borrowed Money is
incurred;
(vii) Guarantees by FTX or any Restricted
Subsidiary of (A) Debt (other than non-recourse
Debt referred to in Section 5.2(g)(v)) or
obligations of a Restricted Subsidiary or (B) Debt
or obligations of Nonrestricted Subsidiaries or
any other Person to the extent permitted by
paragraphs (l), (r) and (s) of this Section 5.2;
(viii) Capitalized Leases (including those
resulting from sale and leaseback transactions) of
FTX or any Restricted Subsidiary if at least
30 days prior to entering into any such
Capitalized Lease, FTX or such Restricted
Subsidiary delivers to each Bank the terms thereof
and, in the case of FI (i) such Capitalized Leases
are in connection with financings of the port
facility, power plants, aircraft, ships,
infrastructure assets or vehicles and (ii) the
aggregate amount of any Capitalized Leases of FI
in connection with financings of vehicles is not
in excess of $25,000,000; and
(ix) recourse liability of FTX or any
Restricted Subsidiary in connection with the sale
of accounts receivable by FTX or such Restricted
Subsidiary, as the case may be; provided, however,
that such recourse liability shall not be in
excess of the sales price of the receivables so
sold and, in the case of a sale of accounts
receivable by FI, the proceeds of such sale are
deposited in the Sales Proceeds Account in
accordance with Article III of the FI Trust
Agreement; and
(x) other Debt not referred to in paragraphs (i) through
(ix) of this Section 5.2(g), in an aggregate principal
amount not exceeding $50,000,000.
(h) [Intentionally left blank.]
(i) Convertible Debt Payments. FTX may not make
any payment on the Debt referred to in Section
5.2(g)(i)(A) and (C) except (x) in common stock of
FTX with cash payment for fractional shares and (y)
otherwise in an aggregate amount not in excess of
$15,000,000.
(j) Ownership of Subsidiaries. FTX shall not at
any time directly or indirectly own shares or units of
voting stock or interests having less than (x) 40%
ownership interest in each of FRP and FI, (y) 50.1%
ownership interest in FCX and (z) such voting power as
provides effective control of the policy and direction
of FRP, FCX and FI. FCX shall not at any time directly
or indirectly own shares of voting stock or interests
having less than 50.1% ownership interest in FI,
including, so long as Section 4(c) of the Indocopper
Shareholders Agreement and the definitions related
thereto are in effect and have not been amended, shares
of voting stock or interests held through P.T.
Indocopper Investama Corporation. FTX shall own its
interests in FRP, FCX and FI, and FCX shall own its
interests in FI, free and clear of all Liens, except as
contemplated by Section 5.1(h). FTX shall promptly
notify the Agent in the event there occurs any
significant decrease in its or FCX's percentage
ownership of such voting power below that indicated in
the most recent Borrowing Base Certificate or, in the
case of its ownership, any decrease in such percentage
interest below 50%. The ownership by FTX of equity
interests in FRP shall be direct and not through any
intervening entity. The ownership by the Guarantors of
common stock of FI shall be direct and not through any
intervening entity, except for the percentage of common
stock held by FCX on the Amendment Closing Date through
P. T. Indocopper Investama Corporation. FTX shall at
no time permit any significant percentage of the assets
of either Major Subsidiary or FCX to be transferred to
another Subsidiary which is not a Restricted Subsidiary
directly owned by FTX; provided, however, that the
foregoing shall not prohibit the IMC-Agrico Transfer,
the ALatief-FI Transfer, the Power Facilities Transfer
or the transfer referred to in Section 8.1(i) in
respect of Contract Area Block B.
(k) Fiscal Year. FTX shall not change its fiscal
year to end on any date other than December 31.
(l) Investments in Nonrestricted Subsidiaries and
Persons Not Subsidiaries. FTX and the Restricted
Subsidiaries shall not make or permit to exist (x) any
Guarantee by FTX or a Restricted Subsidiary of the Debt
of any Person which is not a Restricted Subsidiary or
(y) any loans or advances to, or purchase any stock,
other securities or evidences of indebtedness of, or
permit to exist any investment (whether by transfer of
assets or otherwise) or acquire any investment
whatsoever in or make any Guarantee with respect to any
such loans, advances, purchases, investments or
acquisitions of interest made by any Person with
respect to, or any other payment for the benefit of,
any Nonrestricted Subsidiaries the aggregate outstanding
amount of which under this clause (y) and
Guarantees under clause (x) at any time exceeds by more
than $50,000,000 the largest aggregate amount thereof
outstanding at any time in the next preceding fiscal
year of FTX; provided that, notwithstanding the
provisions of clauses (x) and (y) above, FTX may (i)
Guarantee the FM Properties Indebtedness and, so long
as no Default or Event of Default shall have occurred
and be continuing (or would result thereupon), make
advances, loans and equity contributions to FM
Properties, (ii) Guarantee obligations of FM Properties
pursuant to any Permitted Swap (as defined in the FM
Credit Agreement) provided that such Guarantee is
granted on the same terms as FTX's Guarantee of the
FM Properties Indebtedness, (iii) consummate the
ALatief-FI Transfer and consummate Guarantees of
ALatief-FI's initial financing as permitted pursuant to
Sections 5.2(s)(i) and 5.2(s)(vii) and (iv) make
investments as permitted under Section 5.2(r), all of
which shall not be included in the calculation above
regarding the prohibition on investments in
Nonrestricted Subsidiaries and other entities in excess
of $50,000,000 of the preceding year's aggregate
investment.
(m) Federal Reserve Regulations. FTX will not,
and will cause the Major Subsidiaries not to, use the
proceeds of any Loan in any manner that would result in
a violation of, or be inconsistent with, the provisions
of Regulations G, U or X of the Board (collectively,
the "Margin Regulations"). FTX will not, and will
cause the Major Subsidiaries not to, take any action at
any time that would (A) result in a violation of the
substitution and withdrawal requirements of said
Regulations, in the event the same should become
applicable to this Agreement or any Loan or (B) cause
the representation and warranty contained in Section
4.1(h) at any time to be other than true and
correct. In the event that the Company at any time
believes that there exists a reasonable possibility
that it will become unable to make the representation
set forth in Section 4.1(h)(iv), and alternative
methods for complying with the Margin Regulations in
connection with this Agreement are available, the
Lenders and the Company shall promptly enter into
negotiations with a view to amending this Agreement to
provide for such alternative methods of compliance.
(n) Certain Debt Agreements. FTX shall not,
without the prior written consent thereto of the
Required Banks, (x) agree to any increase in the
principal amount of, or interest rate on, or security
for, any of the Debt referred to in
Section 5.2(g)(i)(A)-(E) or (y) amend, supplement or
change in any material manner (including any earlier
maturity date or amortization schedule), any of the
terms or provisions of any agreement, note or other
instrument governing or evidencing any of the Debt
referred to in Section 5.2(g)(i)(A) and (B).
(o) Investments in the Major Subsidiaries.
Neither FTX nor any of its Restricted Subsidiaries
shall make or permit to exist any loans or advances to,
or purchase any stock, other securities or evidences of
indebtedness of, or permit to exist any investment or
acquire any interest whatsoever in the Major
Subsidiaries or any Subsidiary of either of them, other
than (i) investments existing on the Amendment Closing
Date in shares of common stock or units of such Major
Subsidiary, (ii) Debt permitted by Section 5.2(g)(ii),
(iii) open market purchases of Depositary Units of FRP
to the extent permitted by Section 5.2(q),
(iv) purchases by FTX of equity interests in FRP
sufficient to allow capital expenditures by FRP of up
to $30,000,000 per annum, (v) investments by each Major
Subsidiary and its Subsidiaries in Subsidiaries of such
Major Subsidiary, (vi) investments in FI expressly
contemplated by the Note Purchase Agreement dated as of
July 2, 1991 among FCX and FI, (vii) investments in FI
as a result of the issuance of common stock of FI in
exchange for or discharge of FI's 8.235% Convertible
Subordinated Debentures due 2007, (viii) Guarantees
permitted by Section 5.2(g)(vii) and (ix) the advance
by FCX to FI of the net proceeds of the Debt referred
to in Section 5.2(g)(i)(D).
(p) Investments in FCX. Except for
(i) Guarantees permitted by Section 5.2(g)(vii),
(ii) intercompany loans from FI to FCX and (iii) open
market purchases of the common stock of FCX to the
extent permitted by Section 5.2(q), FTX and the
Restricted Subsidiaries shall not make or permit to
exist any loans or advances to, or purchase any stock,
other securities or evidences of indebtedness of, or
permit to exist any investment (whether by transfer of
assets or otherwise) or acquire any investment
whatsoever in or make any Guarantee with respect to any
such loans, advances, purchases, investments or acquisitions
of interest made by any Person with respect to,
or any other payment for the benefit of, FCX the
aggregate outstanding amount of which at any time
exceeds by more than $60,000,000 the largest aggregate
amount thereof outstanding at any time in the next
preceding fiscal year of FTX.
(q) Equity Payments. FTX shall not make an
Equity Payment if there is then continuing any Default
or Event of Default (or a Default or Event of Default
would result therefrom), other than a failure to be in
compliance with Section 3.2 resulting solely from a
redetermination of the Borrowing Base Factors during a
90-day period as permitted by the last sentence of
Section 2.4 of the FTX Credit Agreement, or if the
Available Borrowing Base would, after giving effect to
such Equity Payment, not remain at or above zero,
without taking into account any redetermination of the
Borrowing Base pursuant to Section 2.3 of the FTX
Credit Agreement; provided, however, that FTX may pay
cash dividends with respect to outstanding shares of
(i) its Convertible Exchangeable Preferred Stock
registered with the SEC by FTX's Registration Statement
on Form S-3 No. 33-12816 and (ii) its $4.375
Convertible Exchangeable Preferred Stock, par value
$1.00 ((i) and (ii) collectively, the "Preferred
Stock") in accordance with the terms of the Preferred
Stock. In addition to the limitations described in the
immediately preceding sentence, if this credit facility
is or would at any time be designated an HLT, FTX shall
not make a proposed Equity Payment if the following
ratio (excluding items relating to Non-Restricted
Subsidiaries for purposes of such calculation) would
not be greater than 1.30 to 1:
Numerator: the sum for the preceding four
fiscal quarters of FTX's (i) Consolidated Cash
Flow, and (ii) any other Net Proceeds from asset
sales not included in clause (i) above.
Denominator: (x) the sum for the preceding
three fiscal quarters of FTX's (i) interest paid
plus capitalized interest on all Debt and
Corporate Group Loans, (ii) Scheduled Principal
Payments, (iii) Equity Payments and Preferred
Stock dividends plus (y) the sum of FTX's (A)
proposed Equity Payment, (B) all previous Equity
Payments and Preferred Stock dividends during the
current fiscal quarter and (C) Scheduled Principal
Payments and projected interest payments on all
Debt and Corporate Group Loans (using the interest
rates applicable at the time of calculation of the
ratio), in each case for the current quarter;
provided, however, that any Corporate Group Loans
prepaid pursuant to Section 3.10(a) or Section
3.10(c) of either this Agreement or the FTX Credit
Agreement or continued or converted pursuant to
Section 3.11 or either this Agreement or FTX
Credit Agreement shall not be included in such
calculation and any other Debt prepaid or
refinanced pursuant to similar provisions of
agreements or instruments governing such other
Debt shall not be included in such calculation if
such Debt would not otherwise have matured within
three months of such prepayment, continuation,
conversion or refinancing.
(r) Covenants Regarding IMC-Agrico. (i) FTX and
the Restricted Subsidiaries shall not make or permit to
exist any loans or advances to, or purchase any stock,
other securities or evidences of indebtedness of, or
permit to exist any investment whatsoever in or make
any Guarantee with respect to any such loans, advances,
purchases, investments or acquisitions of interest made
by any Person with respect to, or any other payment for
the benefit of, IMC-Agrico except (A) the IMC-Agrico
Transfer and (B) in the case of FTX and the Restricted
Subsidiaries, to the extent that the aggregate amount
outstanding of which at any time does not exceed by
more than $50,000,000 the largest aggregate amount
thereof outstanding at any time in the next preceding
fiscal year of FTX.
(ii) FTX shall not permit IMC-Agrico to incur
Debt, other than Debt to FTX or any Restricted
Subsidiary permitted pursuant to paragraph (i) of this
Section 5.2(r), in excess of $225,000,000 at any time
outstanding, and shall not permit Debt of IMC-Agrico at
any time outstanding owing to any Persons (other than
FRP, any Subsidiary of FRP, IMC and any Subsidiary of
IMC) to exceed $110,000,000.
(iii) FTX (A) shall not permit FRP Partner to
agree, without the prior written consent of the
Required Banks, (x) to amend Section 6.04(a), (b) or
(d) or Section 6.07 of the IMC-Agrico Partnership
Agreement or any defined term included in either such
Section or (y) to enter into any agreement which
conflicts with either Section which would in the case
of either (x) or (y) dilute the control of FRP Partner
or narrow the scope of the decisions subject to vote by
FRP Partner, (B) shall notify the Agent of any proposed
amendment to any of the IMC-Agrico Contribution
Agreement, the IMC-Agrico Partnership Agreement or the
IMC-Agrico Parent Agreement and (C) shall not, and
shall not permit any of its Subsidiaries to, in each
case without the prior written consent of the Required
Banks, agree to amend any such agreement if, in the
opinion of the Agent, such amendment would reasonably
be expected to adversely affect the interests of the
Banks.
(iv) Neither FTX nor FRP shall permit its
accounting of IMC-Agrico to be other than as a
proportional consolidating interest unless FTX, FRP and
the Agent have agreed upon mutually acceptable
amendments to the financial covenants herein.
(s) Covenants Regarding ALatief-FI. (i) FTX and
FI shall not permit ALatief-FI to incur the initial
transfer and the initial financing referred to in
Section 7.2 of the ALatief-FI Joint Venture Agreement
without the prior written consent of the Agent, such
consent not to be unreasonably withheld, and, if FI
shall not have Guaranteed such financing, without the
prior written consent of the Required Borrowing Base
Banks, each such consent to be conditioned upon the
satisfactory factoring of such financing into the
calculation of Borrowing Base Debt.
(ii) FI shall notify the Agent of any proposed
amendments to the ALatief-FI Joint Venture Agreement
and, without the prior written consent of the Required
Banks, FI shall not agree to amend the ALatief-FI Joint
Venture Agreement if, in the opinion of the Agent, such
amendment could adversely affect the interests of the
Banks.
SECTION 5.3. Additional Covenants of FI and FCX.
So long as any Bank shall have any Loan Exposure or any
commitment to make a Loan hereunder, FI and FCX each
directly agrees with the Banks and the Agent that, without
the prior written consent of the Required Banks, it will
not, and will cause each of its own Subsidiaries not to,
fail to comply with the provisions of Sections 5.1 and 5.2
which are applicable to it and FI will not materially alter
the nature and scope of the business and activities in which
it is engaged as of the Amendment Closing Date.
ARTICLE VI
Conditions of Credit
SECTION 6.1. Conditions Precedent to Each Credit
Event. Each Credit Event shall be subject to the following
conditions precedent:
(i) the representations and warranties on the part
of FI and the Guarantors and of FRP contained in the
Loan Documents shall be true and correct in all material
respects at and as of the date of such Credit
Event as though made on and as of such date;
(ii) the Agent shall have received a notice of such
borrowing as required by Section 3.4;
(iii) no Event of Default shall have occurred and be
continuing on the date of such Credit Event or would
result from such Credit Event;
(iv) there shall have been no amendments to the
Certificate of Incorporation, the Certificate of
Domestication or the Certificate of Limited
Partnership, as applicable, or the By-laws or
Partnership Agreement, as applicable, of any Guarantor
or Major Subsidiary since the date of the Certificate
furnished by FTX pursuant to Section 6(a) of the
Amendment Agreement, other than amendments, if any,
copies of which have been furnished to the Agent; and
(v) except as permitted by the proviso to
Section 5.2(c), there shall be no proceeding for the
dissolution or liquidation of any Guarantor or Major
Subsidiary or any proceeding to revoke the Certificate
of Incorporation of FTX, FCX or FI or to rescind the
partnership agreement of FRP or the corporate or
partnership existence, which is pending or, to the
knowledge of FTX, threatened against or affecting any
Guarantor or Major Subsidiary.
SECTION 6.2. Representations and Warranties with
Respect to Credit Events. Each Credit Event shall be deemed
a representation and warranty by FTX and FI that the
conditions precedent to such Credit Event, unless otherwise
waived in accordance herewith, shall have been satisfied.
ARTICLE VII
Events of Default
SECTION 7.1. Events of Default. If any of the
following acts or occurrences (an "Event of Default") shall
occur and be continuing:
(a) default for three or more days in the payment
when due of any principal of any Corporate Group Note;
or
(b) default for five or more days in the payment
when due of any interest on any Corporate Group Note,
or of any other amount payable under the Corporate
Group Facility; or
(c) any representation or warranty made or deemed
made in or in connection with any Loan Document or in
any certificate, letter or other writing or instrument
furnished or delivered to the Agent, the FTX Agent, the
FI Trustee, any Bank or any FTX Lender pursuant hereto
or to the FTX Credit Agreement shall prove to have been
incorrect in any material respect when made or
effective or reaffirmed and repeated, as the case may
be; or
(d) default by FTX, either Major Subsidiary or FCX
in the due observance or performance of any covenant,
condition or agreement in Section 5.1(c) or 5.1(h) of
either this Agreement or the FTX Credit Agreement,
other than the covenant to preserve and maintain all of
such Person's rights, privileges and franchises
desirable in the normal conduct of it business; or
(e) default by FTX, either Major Subsidiary or FCX
in the due observance or performance of any covenant,
condition or agreement in Section 5.2 of this Agreement
or in Section 5.2 of the FTX Credit Agreement (other
than, in each case, paragraph (k)); or
(f) default by FTX, either Major Subsidiary or FCX
in the due observance or performance of any other
covenant, condition or agreement in the Corporate Group
Facility which shall remain unremedied for 30 days
after written notice thereof shall have been given to
such Person by any Bank; or
(g) FTX or any Restricted Subsidiary shall
(i) voluntarily commence any proceeding or file any
petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended,
or any other Federal or state bankruptcy, insolvency,
liquidation or similar law or, in the case of FI, any
such law of Indonesia, (ii) consent to the institution
of, or fail to contravene in a timely and appropriate
manner, any proceeding or the filing of any petition
described in clause (h) below, (iii) apply for or
consent to the appointment of a receiver, trustee,
custodian, sequestrator or similar official for FTX or
such Restricted Subsidiary or for a substantial part of
its property or assets, (iv) file an answer admitting
the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment
for the benefit of creditors, (vi) become unable, admit
in writing its inability or fail generally to pay its
debt as they become due or (vii) take any action for
the purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced
or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of
FTX or any Restricted Subsidiary, or of a substantial
part of the property or assets of FTX or any Restricted
Subsidiary, under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership
or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator or similar official
for FTX or any Restricted Subsidiary or for a
substantial part of the property of FTX or any
Restricted Subsidiary or (iii) the winding-up or
liquidation of FTX or any Restricted Subsidiary; and
such proceeding or petition shall continue undismissed
for 60 days, or an order or decree approving or
ordering any of the foregoing shall continue unstayed
and in effect for 30 days; or
(i) default shall be made with respect to any Debt
of FTX or any Restricted Subsidiary if the effect of
any such default shall be to accelerate, or to permit
the holder or obligee of any Debt (or any trustee on
behalf of such holder or obligee) to accelerate (with
or without notice or lapse of time or both), the
maturity of Debt in an aggregate amount in excess of
$10,000,000; or any payment of principal or interest,
regardless of amount, on any Debt of FTX or a
Restricted Subsidiary in an aggregate principal amount
in excess of $10,000,000, shall not be paid when due,
whether at maturity, by acceleration or otherwise
(after giving effect to any period of grace specified
in the instrument evidencing or governing such Debt);
or
(j) a Reportable Event or Reportable Events, or a
failure to make a required payment (within the meaning
of Section 412(n)(1)(A) of the Code) shall have
occurred with respect to any Plan or Plans that reasonably
could be expected to result in liability of FTX to
the PBGC or to a Plan in an aggregate amount exceeding
$10,000,000 and, within 30 days after the reporting of
any such Reportable Event to the Agent or after the
receipt by the Agent of the statement required pursuant
to clause (iii) of Section 5.1(f), the Agent shall have
notified FI in writing that (i) the Required Banks have
made a determination that, on the basis of such Reportable
Event or Reportable Events or the receipt of such
statement, there are reasonable grounds (A) for the
termination of such Plan or Plans by the PBGC, (B) for
the appointment by the appropriate United States
District Court of a trustee to administer such Plan or
Plans or (C) for the imposition of a lien in favor of a
Plan and (ii) as a result thereof an Event of Default
exists hereunder; or a trustee shall be appointed by a
United States District Court to administer any such
Plan or Plans; or the PBGC shall institute proceedings
to terminate any Plan or Plans; or
(k) FTX or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it
has incurred Withdrawal Liability to such Multiemployer
Plan, (ii) FTX or such ERISA Affiliate does not have
reasonable grounds for contesting such Withdrawal
Liability and is not in fact contesting such Withdrawal
Liability in a timely and appropriate manner, and
(iii) the amount of such Withdrawal Liability specified
in such notice, when aggregated with all other amounts
required to be paid to Multiemployer Plans in
connection with Withdrawal Liabilities (determined as
of the date or dates of such notification), exceeds
$10,000,000 or requires payments exceeding $10,000,000
in any year; or
(l) FTX or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or is
being terminated, within the meaning of Title IV of
ERISA, if solely as a result of such reorganization or
termination the aggregate annual contributions of FTX and
its ERISA Affiliates to all Multiemployer Plans that are
then in reorganization or have been or are being terminated
have been or will be increased over the amounts required to
be contributed to such Multiemployer Plans for their most
recently completed plan years by an amount exceeding
$10,000,000;
(m) a final judgment for the payment of money in excess
of $10,000,000 shall be rendered by a court or other
tribunal against FTX or any Restricted Subsidiary and shall
remain undischarged for a period of 45 consecutive days
during which execution of such judgment shall not have been
stayed effectively; or any action shall be legally taken by
a judgment creditor to levy upon assets or properties of FTX
or any Restricted Subsidiary to enforce any such judgment;
(n) the security interest in the Contract of Work
granted in the FI Trust Agreement shall be deemed to be
invalid or fail to be in full force and effect or the
Contract of Work shall be terminated or otherwise fail to be
in full force and effect or shall be amended without the
consent of the Required Banks in any manner which materially
and adversely affects the rights and benefits granted to the
FI Trustee and the Banks under the FI Security Documents; or
the Ministry of Mines and Energy of Indonesia (or any
successor entity) or the Government of Indonesia shall have
taken any action in contravention of the Contract of Work
which materially adversely affects FI's ability to perform
its obligations under the Corporate Group Facility or the
rights and benefits granted to the FI Trustee under any FI
Security Document; or
(o) any Governmental Authority shall condemn, seize,
nationalize, assume the management of or appropriate any
material portion of FI's property, assets or revenues
(either with or without payment of compensation);
then, and in any such event (other than an event with
respect to FTX or either Major Subsidiary described in
paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event, the Agent may,
and at the request of the Required Banks shall, by written
or telegraphic notice to FTX, take one or more of the
following actions at the same or different times:
(i) declare the Total Commitment to be terminated,
whereupon the Total Commitment shall
forthwith terminate; (ii) declare all sums then owing by FI under the
Promissory Notes or otherwise owing hereunder to be forthwith due and
payable, whereupon all such sums shall become and be immediately due
and payable without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived by FI, anything
contained herein or in any Promissory Note to the contrary
notwithstanding standing or (iii) exercise any or all the remedies
then available under the FI Security Documents, the Pledge Agreement
or the Security Agreements; provided, however, that upon the
occurrence of any event described in paragraph (g) or (h) of this
Section 7.1 as to which FTX or either Major Subsidiary is the entity
involved, all sums then owing by FI to the Banks upon the Promissory
Notes or otherwise hereunder shall, without any declaration or other
action by any Bank hereunder, be immediately due and payable and the
Total Commitment hereunder shall be immediately terminated subject to
the final sentence of this Section 7.1 without presentment, demand,
protest or notice of any kind, all of which are expressly waived by
FI, anything contained herein or in any Promissory Note to the
contrary notwithstanding. Promptly following the making of any such
declaration, the Agent shall give notice thereof to FI but failure to
do so shall not impair the effect of such declaration.
ARTICLE VIII
The Agent and the FI Trustee
SECTION 8.1. The Agent and the FI Trustee.
(a) For convenience of administration and to expedite the
transactions contemplated by this Agreement, Chemical Bank
is hereby appointed as Agent and Collateral Agent for the
Banks under this Agreement and Morgan Guaranty Trust Company
of New York as trustee under the FI Trust Agreement is
hereby appointed as FI Trustee for the Banks under the FI
Security Documents. Each Bank (i) confirms and agrees to be
bound by the terms of the FI Trust Agreement and (ii) agrees
that the FI Trustee in accepting appointment and in acting
as security agent under the FI Security Documents 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. Neither the Agent nor the Collateral Agent
shall have any duties or responsibilities with respect
hereto except those expressly set forth herein. Each Bank
hereby irrevocably appoints and expressly authorizes the
Agent and the Collateral Agent, without hereby limiting any
implied authority, to take such action as the Agent or the
Collateral Agent, as applicable, on its behalf and to exercise
such powers under this Agreement as are delegated to
such Person by the terms hereof, together with such powers
as are reasonably incidental thereto. Each of the Agent and
the Collateral Agent may exercise any of its duties hereunder
by or through their respective agents, officers or
employees. In addition, each Bank hereby irrevocably
(i) authorizes and directs the Collateral Agent to enter, on
behalf of each of them, into the FTX Intercreditor Agreement
and, as contemplated pursuant to this Agreement, the Pledge
Agreement and the Security Agreement and (ii) authorizes and
directs the FI Trustee to enter, on behalf of each of them,
into the FI Security Documents, and in each case agrees to
be bound by the terms thereof.
(b) Neither the Agent, the Collateral Agent nor
any of their respective directors, officers, agents or
employees shall be liable to any Bank, FI or either
Guarantor for any action taken or omitted to be taken by it
or them in good faith under or in connection with this
Agreement and shall neither be responsible to any Bank, FI
or either Guarantor for the consequences of any oversight or
error of judgment nor be answerable to any Bank, FI or
either Guarantor for any loss unless the same shall happen
through its or their gross negligence or wilful misconduct.
The Agent may treat the payee of any Promissory Note as the
holder thereof until written notice of transfer shall have
been filed with it signed by such payee and in form
satisfactory to the Agent. The Agent and the Collateral
Agent may each consult with legal counsel selected by it and
shall be entitled to rely upon the advice of such counsel as
to its duties and shall not be liable for any action taken
or suffered in good faith by it in accordance with the
advice of such counsel. Neither the Agent nor the Collateral
Agent shall be under a duty to enter into or pass
upon the validity, effectiveness, genuineness or value of
this Agreement, any Promissory Note or any other Loan Document,
any other instrument or document delivered pursuant
hereto or thereto or herewith or therewith, or any representation,
warranty or agreement made herein or therein or
in connection herewith or therewith, and the Agent and the
Collateral Agent each shall be entitled to assume that the
same are valid, effective and genuine in what they purport
to be. Neither the Agent nor the Collateral Agent shall
incur any liability under or in respect of this Agreement by
acting upon any notice, consent, certificate, warranty or
other paper or instrument believed by such Person to be
genuine or authentic or to be signed by the proper party, or
with respect to anything which it may do or refrain from
doing in the reasonable exercise of its judgment, or which
may seem to it to be necessary or desirable on such
premises.
(c) To the extent that either the Agent or the
Collateral Agent shall not be reimbursed by FI or either
Guarantor for any costs, liabilities or expenses incurred in
such capacity or, to the extent the FI Trustee shall not be
reimbursed by the Borrowers for any costs, liabilities or
expenses incurred in its capacity as trustee under the FI
Trust Agreement (including in its capacity as security agent
under the FI Security Documents), each Bank agrees to
indemnify such Person, pro rata in accordance with its
Applicable Percentage, from and against any and all liabilities,
obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on or
incurred by or asserted against such Person in any way
relating to or arising out of this Agreement or the FI Trust
Agreement, as the case may be; provided, however, that no
Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the
Agent's, the Collateral Agent's or the FI Trustee's gross
negligence or wilful misconduct. Each Bank agrees promptly
to pay to the Agent, the Collateral Agent or the FI Trustee,
as applicable, its pro rata portion of the statement of
amounts payable by FI to such Person under this Agreement
which are not paid by FI for any reason, within 30 days of
the date such statement is sent to the Banks by such Person.
(d) It is expressly understood and agreed that
the obligations of the Agent and the Collateral Agent are
only those expressly set forth with respect to it in this
Agreement. The Agent shall not be required to take any
action and shall have no obligations, except such actions
and obligations which it is expressly required to take or
observe by the terms of this Agreement. Each Bank agrees
that the Agent shall be entitled to take any action which it
is permitted to take hereunder, but shall only be required
to take any such action at the written request of the
Required Banks. The Agent and the Collateral Agent shall be
entitled to assume that no Event of Default or Default has
occurred and is continuing, unless such Person has actual
knowledge of such fact or has received notice from a Bank
that such Bank considers that an Event of Default or Default
has occurred and is continuing and specifying the nature
thereof. In the event that the Agent or the Collateral
Agent shall have acquired actual knowledge of any such Event
of Default or Default, such Person shall promptly give
notice thereof to the Banks, and will take such action and
assert such rights pursuant to this Agreement as the
Required Banks shall direct. The Agent and the Collateral
Agent shall in all cases be fully protected for any action
taken pursuant to such directions.
(e) The Agent and the Collateral Agent may resign
at any time by giving written notice thereof to the Banks
and FI and may be removed at any time with or without cause
by the Required Banks. Upon any such resignation or
removal, the Required Banks shall have the right to appoint,
and FI shall have the right to approve (such approval not to
be unreasonably withheld or delayed) a successor Agent or
Collateral Agent, as the case may be. If no successor Agent
or Collateral Agent, as the case may be, shall have been so
appointed and approved and shall have accepted such
appointment, within 30 days after the retiring Person's
giving of notice of resignation or the Banks' removal of the
retiring Person, then the retiring Person may, on behalf of
the Banks, appoint a successor Agent or Collateral Agent, as
the case may be, which shall be a Bank. Upon the acceptance
of any appointment as Agent or Collateral Agent hereunder by
a successor Agent or Collateral Agent, as the case may be,
such successor Agent or Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Person, and the
retiring Person shall be discharged from its duties and
obligations hereunder. After any such retiring Person's
resignation or removal hereunder as Agent or Collateral
Agent, as applicable, the provisions of this Article VIII
shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Agent or
Collateral Agent, as applicable, under this Agreement.
(f) The Agent shall be responsible for
supervising the preparation, execution and delivery of this
Agreement and the other agreements and instruments
contemplated hereby, any amendment or modification thereto
and the closing of the transactions contemplated hereby and
thereby. In addition, the Agent shall assist each of the
Collateral Agent and the FI Trustee in the performance of
its duties as may be reasonably requested by such Person
from time to time.
(g) The obligations of the Agent, the Collateral
Agent and the FI Trustee shall be separate and several and
neither of them shall be responsible or liable for the acts
or omissions of the other, except to the extent that a Bank
serves in more than one agent and/or trustee capacity, such
Bank shall be responsible for the acts and omissions
relating to each such agency and/or trust function.
(h) Without the prior written consent of the
Required Banks, the Collateral Agent will not consent to any
modification, supplement or waiver of the FTX Intercreditor
Agreement.
(i) Notwithstanding any other provision of this
Section 8.1, the Agent will, at the request of FI, instruct
the FI Trustee to release from the FI Trust Agreement and
the other FI Security Documents (and enter into an amendment
to the FI Trust Agreement and the other FI Security
Documents and execute such other instruments as may be
necessary in connection therewith) any interest of the FI
Trustee in (i) the rights of FI under the Contract of Work
in respect of all or any part of Contract Area Block B (as
defined in the Contract of Work), without further consent by
the Required Banks and the Required Banks (as defined in the
FTX Credit Agreement) if, in the opinion or opinions of
counsel acceptable to the Agent and in the opinion of the
Agent, such release is to be effected without impairing or
adversely affecting (A) the Lien and interest of the FI
Trustee stated to be created in the rights of FI under the
Contract of Work in respect of Contract Area Block A (as
defined in the Contract of Work) and the FI Project (to the
extent it includes the mining, concentrating,
transportation, shipping and related operations of FI in
respect of FI Product obtained or produced from Contract
Area Block A) by the FI Trust Agreement and the other FI
Security Documents, the Memorandum of Understanding and the
Contract of Work or (B) the rights of FI relating to
ownership and operation of the FI Project (to the extent it
includes the mining, concentration, transportation, shipping
and related operations of FI in respect of FI Product
obtained or produced from Contract Area Block A), (ii) the
property and rights to be transferred pursuant to the
ALatief-FI Transfer and (iii) the property and rights to be
transferred pursuant to the Power Facilities Transfer.
ARTICLE IX
Guarantees
SECTION 9.1. Guarantee. As consideration for the
Banks' obligations to lend hereunder, each Guarantor hereby
unconditionally and irrevocably guarantees, as a primary
obligor and not merely as a surety, the due and punctual
payment of (x) the principal of and interest on each
Promissory Note of FI, when and as due, whether at maturity,
by acceleration, by notice of prepayment or otherwise,
(y) all other monetary obligations of FI to the Banks, the
Agent and the FI Trustee under this Agreement and (z) all
amounts owing by FI to any Bank pursuant to any Permitted
Secured Swap (collectively, the "FI Obligations"). Each
Guarantor further agrees that the FI Obligations may be
extended or renewed, in whole or in part, without notice or
further assent from it, and that it will remain bound upon
its guarantee notwithstanding any extension or renewal of
any such FI Obligation.
Each Guarantor waives presentment to, demand of
payment from and protest to FI of any of the FI Obligations,
and also waives notice of acceptance of its guarantee and
notice of protest for nonpayment. The obligations of each
Guarantor under this Section 9.1 shall not be affected by
(a) the failure of any Bank, the Agent or the FI Trustee to
assert any claim or demand or to enforce any right or remedy
against FI under the provisions of this Agreement or
otherwise; (b) any rescission, waiver, amendment or
modification of any of the terms or provisions of this
Agreement, any Promissory Note any guarantee or any other
agreement; (c) the release of any security held by any Bank,
the Agent or the FI Trustee for the Obligations guaranteed
by it or any of them; or (d) the failure of any Bank, the
Agent or the FI Trustee to exercise any right or remedy
against any other guarantor of the FI Obligations.
Each Guarantor further agrees that its guarantee
constitutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort
be had by any Bank, the Agent or the FI Trustee to any
security held for payment of the FI Obligations or to any
balance of any deposit account or credit on the books of
such Bank in favor of FI or any other Person.
The obligations of each Guarantor under this
Section 9.1 shall not be subject to any reduction,
limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release,
surrender, alteration or compromise, and shall not be
subject to any defense or setoff, counterclaim, recoupment
or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the FI Obligations or
otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor under this
Section 9.1 shall not be discharged or impaired or otherwise
affected by the failure of any Bank, the Agent or the FI
Trustee to assert any claim or demand or to enforce any
remedy under this Agreement, any Promissory Note, any
guarantee or any other agreement, by any waiver or
modification of any thereof, by any default, failure or
delay, wilful or otherwise, in the performance of the FI
Obligations, or by any other act or omission which may or
might in any manner or to any extent vary the risk of either
Guarantor, or otherwise operate as a discharge of FTX or FCX
as a matter of law or equity.
Each Guarantor further agrees that its guarantee
shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of
principal of or interest on any Obligation guaranteed by it
(including, without limitation, any payment pursuant to this
guarantee) is rescinded or must otherwise be restored by any
Bank, the Agent or the FI Trustee upon the bankruptcy or
reorganization of FI or otherwise.
In furtherance of the foregoing and not in limitation
of any other right which any Bank, the Agent or the FI
Trustee may have at law or in equity against either
Guarantor by virtue hereof, upon the failure of FI to pay
any of the FI Obligations when and as the same shall become
due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, each Guarantor hereby promises to
and will, upon receipt of written demand by any Bank, the
Agent or the FI Trustee, forthwith pay, or cause to be paid,
to the Agent for distribution to the Banks, the Agent or the
FI Trustee, as appropriate, in cash the amount of such
unpaid FI Obligations, and at such time as all such FI
Obligations owing to such Bank, the Agent, or the FI Trustee
as applicable, have been indefeasibly paid in full and its
Commitment terminated, such Bank shall, in a reasonable
manner, assign the amount of such FI Obligations owed to it
and paid by such Guarantor pursuant to this guarantee to
such Guarantor, such assignment to be pro tanto to the
extent to which the FI Obligations in question were
discharged by such Guarantor or make such other disposition
thereof as such Guarantor shall direct (all without recourse
to such Bank, the Agent or the FI Trustee, as applicable and
without any representation or warranty by such Bank, the
Agent or the FI Trustee, as applicable.
Upon payment by either Guarantor of any sums to a
Bank, the Agent or the FI Trustee as provided above in this
Section 9.1, all rights of such Guarantor against FI or the
other Guarantor arising as a result thereof by way of right
of subrogation or otherwise shall in all respects be subordinated
and junior in right of payment to the prior indefeasible
payment in full of all the FI Obligations to the
Banks, the Agent and the FI Trustee and all the FI Obligations
(as defined in the FTX Credit Agreement) and shall not
be exercised by such Guarantor prior to indefeasible payment
in full of all Corporate Group Loans and termination of the
Commitments and the commitments under the FTX Credit Agreement.
ARTICLE X
Miscellaneous
SECTION 10.1. Notices. Notices and other communications
provided for herein shall be in writing and
shall be delivered by hand or overnight or same day courier
service or mailed or sent by telex, telecopy, graphic
scanning or other telegraphic communications equipment of
the sending party to the appropriate party's address set
forth on the signature pages hereof. All notices and other
communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have
been given on the date of receipt if hand delivered or three
days after being sent by registered or certified mail,
postage prepaid, return receipt requested, if by mail, or
upon receipt if by any telecopy, telegraphic or telex
communications equipment, in each case addressed to such
party as provided in this Section 10.1 or in accordance with
the latest unrevoked direction from such party. Any notice
delivered to FTX hereunder shall be deemed also to have been
given to FI, and such notice shall be deemed to have been
given to FI on the day it is deemed to have been given to
FTX.
SECTION 10.2. Survival of Agreement. All covenants,
agreements, representations and warranties made by FI
or the Guarantors herein and in the certificates or other
instruments prepared or delivered in connection with this
Agreement shall be considered to have been relied upon by
the Banks, the Agent and the FI Trustee and shall survive
the making by the Banks of the Loans and the execution and
delivery to the Banks of the Promissory Notes evidencing
such Loans regardless of any investigation made by the Banks
or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest
on any Corporate Group Note, any Commitment Fee or any other
fee or amount payable under the Corporate Group Notes or the
Corporate Group Facility is outstanding and unpaid and so
long as the Commitments or the commitments under the FTX
Credit Agreement have not been terminated.
SECTION 10.3. Successors and Assigns; Participations;
Purchasing Banks. (a) This Agreement shall be
binding upon and inure to the benefit of FI, the Guarantors,
the Banks, the Agent, the FI Trustee (for purposes of
Article VIII only), all future holders of the Promissory
Notes, and its respective successors and assigns, except
that neither FTX, FI, nor FCX may assign or transfer any of
its rights or obligations under this Agreement without the
prior written consent of each Bank. Any Bank may at any
time pledge or assign all or any portion of its rights under
this Agreement and the Promissory Notes issued to it to a
Federal Reserve Bank; provided that no such pledge or
assignment shall release a Bank from any of its obligations
hereunder.
(b) Any Bank may, in the ordinary course of its
business and in accordance with applicable law, at any time
sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Bank, any
Promissory Note held by such Bank, any Commitment of such
Bank or any other interest of such Bank hereunder. In the
event of any such sale by a Bank of participating interests
to a Participant, such Bank's obligations under this Agreement
to the other parties to this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the
performance thereof, such Bank shall remain the holder of
any such Promissory Note for all purposes under this Agreement
and FI and the Guarantors and the Agent shall continue
to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement.
FI and the Guarantors agree that if amounts outstanding
under this Agreement and the Promissory Notes are due
and unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default,
each Participant shall be deemed to have the right of setoff
in respect of its participating interest in amounts owing
under this Agreement and any Promissory Note to the same
extent as if the amount of its participating interest were
owing directly to it as a Bank under this Agreement or any
Promissory Note; provided that such right of setoff shall be
subject to the obligation of such Participant to share with
the Banks, and the Banks agree to share with such Participant,
as provided in Section 3.16. FI and the Guarantors
also agree that each Participant shall be entitled to the
benefits of Sections 3.12, 3.13, 3.14, 3.16, 3.18, 3.19 and
10.5 with respect to its participation in the Commitments
and the Loans outstanding from time to time; provided that
no Participant shall be entitled to receive any greater
amount pursuant to such Sections than the transferor Bank
would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Bank to
such Participant had no such transfer occurred and provided
further that the voting rights of any Participant would be
limited to changes in amounts of Loan or Commitment, rates,
fees and maturity affecting such Participant and release of
all or substantially all the collateral for the FI
Obligations. Each Bank selling a participation with a tenor
longer than 183 days will use its best efforts to inform FTX
of (i) the amount of any such participations sold and
(ii) the identity of all Participants purchasing such
participations.
(c) [Intentionally left blank.]
(d) This Agreement shall not be assignable by the
Banks, except that a Bank may, in accordance with applicable
law, and subject to Section 10.3(j), at any time assign by
novation all or any part of its rights and obligations under
this Agreement and its Promissory Notes (I) to any Bank or
any affiliate thereof, without FI's consent, or (II) to one
or more additional banks or financial institutions (any such
entity referred to in clause (I) or (II) being a "Purchasing
Bank") with FI's consent, such consent not to be
unreasonably withheld (except that any Bank may assign its
rights and obligations under this Agreement and any
affiliate thereof and its Promissory Notes to any other Bank
that is a party to this Agreement without the necessity of
approval by FI or any Guarantor), pursuant to a Commitment
Transfer Supplement in the form of Exhibit D hereto,
executed by such Purchasing Bank, such transferor Bank (and,
in the case of a Purchasing Bank that is not then a Bank or
an affiliate thereof, by FI and the Agent), and delivered to
the Agent for its recording in the Register. Assignments
shall be by novation only. Upon such execution, delivery
and recording (and, if required, consent of FI), from and
after the Transfer Effective Date determined pursuant to
such Commitment Transfer Supplement, (x) the Purchasing Bank
thereunder shall (if not already a party hereto) be a party
hereto and, to the extent provided in such Commitment
Transfer Supplement, have the rights and obligations of a
Bank hereunder with a Commitment as set forth therein, and
(y) the transferor Bank thereunder shall, to the extent
provided in such Commitment Transfer Supplement, be released
from its obligations under this Agreement (and, in the case
of a Commitment Transfer Supplement covering all or the
remaining portion of a transferor Bank's rights and obligations
under this Agreement, such transferor Bank shall cease
to be a party hereto). Such Commitment Transfer Supplement
shall be deemed to amend this Agreement to the extent, and
only to the extent, necessary to reflect the addition of
such Purchasing Bank (if not already a party hereto) and the
resulting adjustment of Applicable Percentages arising from
the purchase by such Purchasing Bank of all or a portion of
the rights and obligations of such transferor Bank under
this Agreement and the Promissory Notes. On or prior to the
Transfer Effective Date determined pursuant to such Commitment
Transfer Supplement, FI, at its own expense, shall
execute and deliver to the Agent in exchange for the
surrendered Promissory Note a new Promissory Note to the
order of such Purchasing Bank in an amount equal to the
Commitment assumed by it pursuant to such Commitment
Transfer Supplement and, if the transferor Bank has retained
a Commitment hereunder, a new Promissory Note to the order
of the transferor Bank in an amount equal to the Commitment
retained by it hereunder. Such new Promissory Notes shall
be dated the Original Execution Date and shall otherwise be
in the form of the Promissory Notes replaced thereby. The
Promissory Note surrendered by the transferor Bank shall be
returned by the Agent to FI marked "canceled".
(e) The Agent shall maintain at its address
referred to in Section 10.1 a copy of each Commitment
Transfer Supplement delivered to it and a register (the
"Register") for the recordation of the names and addresses
of the Banks, and the Commitment of, and principal amount of
the Loans owing to, each Bank from time to time. The
entries in the Register shall be conclusive, in the absence
of manifest error, and the parties hereto may treat each
Person whose name is recorded in the Register as the owner
of the Loan recorded therein for all purposes of this
Agreement. The Register shall be available for inspection
by the parties hereto at any reasonable time and from time
to time upon reasonable prior notice.
(f) Upon its receipt of a Commitment Transfer
Supplement executed by a transferor Bank and a Purchasing
Bank (and, in the case of a Purchasing Bank that is not then
a Bank or an affiliate thereof, by FI and the Agent)
together with payment to the Agent of a registration and
processing fee of $2,000, the Agent shall (i) promptly
accept such Commitment Transfer Supplement and (ii) on the
Transfer Effective Date determined pursuant thereto record
the information contained therein in the Register and give
notice of such acceptance and recordation to the Banks and
FI.
(g) Subject to Section 10.16, FI authorizes each
Bank to disclose to any Participant or Purchasing Bank
(each, a "Transferee") and any prospective Transferee any
and all financial information in such Bank's possession
concerning FTX and its affiliates which has been delivered
to such Bank by or on behalf of FTX or FI pursuant to this
Agreement or which has been delivered to such Bank by or on
behalf of FTX or FI in connection with such Bank's credit
evaluation of FTX and its affiliates prior to becoming a
party to this Agreement.
(h) If, pursuant to this Section 10.3, any
interest in this Agreement or any Promissory Note is transferred
to any Transferee other than a Participant which is
organized under the laws of any jurisdiction other than the
United States or any State thereof, the transferor Bank
(x) shall immediately notify the Agent of such transfer,
describing the terms thereof and indicating the identity and
country of residence of each Transferee and (y) shall cause
such Transferee, concurrently with the effectiveness of such
transfer, (i) to represent to the transferor Bank (for the
benefit of the transferor Bank, the Agent and FI) that under
applicable law and treaties no taxes will be required to be
withheld by the Agent, FI or the transferor Bank with
respect to any payments to be made to such Transferee in
respect of the Loans, (ii) to furnish to the transferor Bank
(and, in the case of any Purchasing Bank registered in the
Register, the Agent and FI) either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001
(wherein such Transferee claims entitlement to complete
exemption from U.S. Federal withholding tax on all interest
payments hereunder) and (iii) to agree (for the benefit of
the transferor Bank, the Agent and FI) to provide the
transferor Bank (and, in the case of any Purchasing Bank
registered in the Register, the Agent and FI) a new
Form 4224 or Form 1001 upon the expiration or obsolescence
of any previously delivered form and comparable statements
in accordance with applicable U.S. laws and regulations and
amendments duly executed and completed by such Transferee,
and to comply from time to time with all applicable U.S.
laws and regulations with regard to such withholding tax
exemption. Notwithstanding any other provision contained
herein to the contrary, FI and the Agent shall be entitled
to deduct and withhold United States withholding taxes with
respect to all payments to be made hereunder to or for such
transferor Bank or Transferee as may be required by United
States law due to such assignments and such transferor Bank
or Transferee shall indemnify and hold harmless FI and the
Agent from and against any tax, interest, penalty or other
expense that FI and the Agent may incur as a consequence of
any failure to withhold United States taxes applicable
because of any transfer or participation arrangement that is
not fully disclosed to them as required hereunder.
(i) If, pursuant to this Section 10.3, a Bank
sells participating interests to a Participant which is
organized under the laws of any jurisdiction other than the
United States or any State thereof, the selling Bank shall
cause such Participant, concurrently with the effectiveness
of such sale, (i) to represent to the selling Bank (for the
benefit of the selling Bank, the Agent and FI) that under
applicable law and treaties no taxes will be required to be
withheld by the Agent, FI or the selling Bank with respect
to any payments to be made to such Participant in respect of
the Loans, (ii) to furnish to the selling Bank either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein such Participant claims
entitlement to complete exemption from U.S. Federal
withholding tax on all interest payments hereunder) and
(iii) to agree (for the benefit of the selling Bank, the
Agent and FI) to provide the selling Bank a new Form 4224 or
Form 1001 upon the expiration or obsolescence of any
previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and
amendments duly executed and completed by such Participant,
and to comply from time to time with all applicable U.S.
laws and regulations with regard to such withholding tax
exemption. Notwithstanding any other provision contained
herein to the contrary, FI and the Agent shall be entitled
to deduct and withhold United States withholding taxes with
respect to all payments to be made hereunder to or for such
selling Bank or Participant as may be required by United
States law due to such participations and such selling Bank
or Participant shall indemnify and hold harmless FI and the
Agent from and against any tax, interest, penalty or other
expense that FI and the Agent may owe as a consequence of
any selling Bank's failure to obtain tax forms securing
complete exemption from U.S. withholding taxes.
(j) Notwithstanding anything in this Section 10.3
to the contrary, (i) without the prior written consent of
the Agent and FTX, no Bank which is an FM Lender shall
(except as permitted by paragraph (a) of this Section 10.3
regarding assignments to Federal Reserve Banks) assign any
interest in or Commitment under this Agreement or any Loans
unless at the same time it shall also assign, to the same
assignee, the same proportion of its interest in and
commitment and loans outstanding under the FM Credit
Agreement pursuant to the provisions governing assignments
set forth therein and (ii) no Bank which is an FTX Lender
shall (except as permitted by paragraph (a) of this
Section 10.3 regarding assignments to Federal Reserve Banks)
make any such assignment of its interests hereunder unless
it shall also assign, to the same assignee, the same
proportion of its interest in and commitment and loans
outstanding under the FTX Credit Agreement.
SECTION 10.4. Expenses of the Banks;
Indemnity. (a) The Guarantors and FI agree, jointly and
severally, to pay all out-of-pocket expenses reasonably
incurred by the Agent in connection with the preparation of
this Agreement and the Promissory Notes or with any
amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby
contemplated shall be consummated) or reasonably incurred by
the Agent or any Bank in connection with the enforcement or
protection of their rights in connection with this Agreement
or with the Loans made or the Promissory Notes issued
hereunder (whether through negotiations, legal proceedings
or otherwise), including, but not limited to, the reasonable
fees and disbursements of Cravath, Swaine & Moore, special
counsel for the Agent and, in connection with such
enforcement or protection, the reasonable fees and
disbursements of other counsel for any Bank. Each of the
Guarantors and FI further agree, jointly and severally, that
it shall indemnify the Banks, the Agent, the Collateral
Agent and the FI Trustee from and hold them harmless against
any documentary taxes, assessments or charges made by any
Governmental Authority by reason of the execution and
delivery of or in connection with the performance of this
Agreement, any of the Promissory Notes or any of the other
Loan Documents. Further, each of the Guarantors and FI
agrees to pay, and to protect, indemnify and save harmless
each Bank, the Agent, the Collateral Agent and the FI
Trustee and each of their respective officers, directors,
shareholders, employees, agents and servants from and
against, any and all losses, liabilities (including liabilities
for penalties), actions, suits, judgments, demands,
damages, costs or expenses (including, without limitation,
attorneys' fees and expenses in connection with any investigative,
administrative or judicial proceeding, whether or
not such Bank or the Agent shall be designated a party
thereto) of any nature arising from or relating to the
issuance or delivery of Promissory Notes or in connection
with the enforcement of this Agreement or the other Loan
Documents or relating to the use of proceeds of Loans
hereunder for the purpose of acquiring equity securities of
any other Person; provided, however, that FI and the
Guarantors shall have no obligation to protect, indemnify
and save harmless any Bank, the Agent, the Collateral Agent
or the FI Trustee or any other Person otherwise entitled to
indemnity hereunder with respect to any loss, liability,
action, suit, judgment, demand, damage, cost or expense
resulting from or attributable to the gross negligence or
wilful misconduct of such Bank, the Agent, the Collateral
Agent or the FI Trustee or such other Person. If any
action, suit or proceeding arising from any of the foregoing
is brought against any Bank, the Agent, the Collateral Agent
or the FI Trustee or any other Person indemnified or
intended to be indemnified pursuant to this Section 10.4, FI
and the Guarantors, to the extent and in the manner directed
by such indemnified party, will resist and defend such
action, suit or proceeding or cause the same to be resisted
and defended by counsel designated by FTX (which counsel
shall be satisfactory to such Bank, the Agent, the
Collateral Agent or the FI Trustee or other Person indemnified
or intended to be indemnified). If either Guarantor or
FI shall fail to do any act or thing which it has covenanted
to do hereunder or any representation or warranty on the
part of such Guarantor or FI contained in this Agreement
shall be breached, any Bank, the Agent, the Collateral Agent
or the FI Trustee may (but shall not be obligated to) do the
same or cause it to be done or remedy any such breach, and
may expend its funds for such purpose. Any and all amounts
so expended by any Bank, the Agent, the Collateral Agent or
the FI Trustee shall be repayable to it by such Guarantor or
FI immediately upon such Bank's or the Agent's demand
therefor.
(b) The provisions of this Section 10.4 shall
remain operative and in full force and effect regardless of
the expiration of the term of this Agreement or the FTX
Credit Agreement, the consummation of the transactions
contemplated hereby or thereby, the repayment of any of the
Corporate Group Loans or any Corporate Group Notes, the
invalidity or unenforceability of any term or provision of
this Agreement or the FTX Credit Agreement or any Corporate
Group Note, or any investigation made by or on behalf of any
Bank, the Agent, any FTX Lender or the FTX Agent. All
amounts due under this Section 10.4 shall be payable on
written demand therefor.
SECTION 10.5. Right of Setoff. If an Event of
Default shall have occurred and be continuing and any Bank
shall have requested the Agent to declare the Promissory
Notes immediately due and payable pursuant to Article VII,
then each Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the
credit or the account of FI against any of and all the
obligations of FI now or hereafter existing under this
Agreement and the Promissory Notes held by such Bank,
irrespective of whether or not such Bank shall have made any
demand under this Agreement or such Promissory Notes and
although such obligations may be unmatured. Each Bank
agrees promptly to notify Fi after any such setoff and
application made by such Bank, but the failure to give such
notice shall not affect the validity of such setoff and
application. The rights of each Bank under this Section are
in addition to other rights and remedies (including, without
limitation, other rights of setoff) which such Bank may
have.
SECTION 10.6. APPLICABLE LAW. THIS AGREEMENT AND
THE PROMISSORY NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.7. Waivers; Amendments. (a) No
failure or delay of any Bank, the Agent or the FI Trustee in
exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and
remedies of the Banks, the Agent and the FI Trustee
hereunder and under the other documents and agreements
entered into in connection herewith are cumulative and not
exclusive of any rights or remedies which they would otherwise
have. No waiver of any provision of this Agreement or
any Promissory Note or any other such document or agreement
or consent to any departure by FI therefrom shall in any
event be effective unless the same shall be authorized as
provided in paragraph (b) below, and then such waiver or
consent shall be effective only in the specific instance and
for the purpose for which given. No notice or demand on FI
in any case shall entitle FI to any other or further notice
or demand in similar or other circumstances. Each holder of
any of the Promissory Notes shall be bound by any amendment,
modification, waiver or consent authorized as provided
herein, whether or not such Promissory Note shall have been
marked to indicate such amendment, modification, waiver or
consent.
(b) Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to
an agreement or agreements in writing entered into by FI and
the Required Banks; provided, however, that no such
agreement shall (i) change the principal amount of, or
extend or advance the maturity of or any date for the
payment of any principal or of interest on, any Promissory
Note (including, without limitation, any such payment
pursuant to Section 3.8 or paragraphs (b), (c) or (d) of
Section 3.10), or waive or excuse any such payment or any
part thereof, or change the rate of interest on any
Promissory Note, without the written consent of each holder
affected thereby, (ii) change the Commitment of any Bank
without the written consent of such Bank, or change any fees
to be paid to any Bank or the Agent hereunder without the
written consent of such Bank or the Agent, as applicable,
(iii) amend or modify the provisions of this Section,
Sections 3.9 through 3.16 or Section 10.4 or Article IX
or the definition of "Required Banks" or "Required Borrowing
Base Banks", without the written consent of each Bank,
(iv) release the collateral granted as security for the
FI Obligations (except as expressly contemplated hereby),
without the written consent of each Bank or (v) release
any Guarantor of its obligations hereunder without the
written consent of each Bank; and provided further that
no such agreement shall amend, modify or otherwise affect
the rights or duties of the Agent hereunder without the
written consent of the Agent. Each Bank and holder of
any Promissory Note shall be bound by any modification or
amendment authorized by this Section regardless of whether
its Promissory Notes shall be marked to make reference
thereto, and any consent by any Bank or holder of a
Promissory Note pursuant to this Section shall bind any
person subsequently acquiring a Promissory Note from it,
whether or not such Promissory Note shall be so marked.
SECTION 10.8. Severability. In the event any one
or more of the provisions contained in this Agreement or in
the Promissory Notes should be held invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein
or therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 10.9. Counterparts. This Agreement may
be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together
shall constitute but one contract, and shall become effective
when copies hereof which, when taken together, bear the
signatures of each of the parties hereto shall be delivered
or mailed to the Agent and FI.
SECTION 10.10. Headings. Article and Section
headings and the Table of Contents used herein are for
convenience of reference only and are not to affect the
construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 10.11. Entire Agreement. The Corporate
Group Facility, the fee letters between the Agent and FTX
and the exhibits and schedules hereto contain the entire
agreement among the parties hereto with respect to the Loans
and the related transactions. Any previous agreement among
the parties with respect to the subject matter hereof is
superseded by the Corporate Group Facility, such fee letters
and the agreements set forth as exhibits hereto. Nothing in
the Corporate Group Facility or in such other documents,
expressed or implied, is intended to confer upon any party
other than the parties hereto any rights, remedies,
obligations or liabilities under or by reason of this
Agreement, such fee letters or the agreements set forth as
exhibits hereto.
SECTION 10.12. Amendment Closing Date. This
Agreement, as amended herein, shall be effective on the
Amendment Closing Date.
SECTION 10.13. WAIVER OF JURY TRIAL, ETC.
(a) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY DOCUMENT OR
AGREEMENT ENTERED INTO IN CONNECTION HEREWITH AND ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(b) Except as prohibited by law, each party
hereto hereby waives any right it may have to claim or
recover in any litigation referred to in paragraph (a) of
this Section any special, indirect, exemplary, punitive or
consequential damages or any damages other than, or in
addition to, actual damages.
(c) Each party hereto (i) certifies that no
representative, agent or attorney of any Bank has represented,
expressly or otherwise, that such Bank would not, in
the event of litigation, seek to enforce the foregoing
waivers and (ii) acknowledges that it has been induced to
enter into this Agreement or any other document, as applicable,
by, among other things, the mutual waivers and
certifications herein.
SECTION 10.14. Interest Rate Limitation. Notwithstanding
anything herein or in the Promissory Notes to
the contrary, if at any time the applicable interest rate,
together with all fees and charges which are treated as
interest under applicable law (collectively the "Charges"),
as provided for herein or in any other document executed in
connection herewith, or otherwise contracted for, charged,
received, taken or reserved by any Bank, shall exceed the
maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by such
Bank in accordance with applicable law, the rate of interest
payable under the Promissory Note held by such Bank, together
with all Charges payable to such Bank, shall be limited
to the Maximum Rate.
SECTION 10.15. JURISDICTION; CONSENT TO SERVICE
OF PROCESS. (a) EACH GUARANTOR AND FI HEREBY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO
THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW
YORK CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO
THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
SHALL AFFECT ANY RIGHT THAT ANY BANK, THE AGENT OR THE FI
TRUSTEE MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY AGAINST FI OR EITHER GUARANTOR OR ITS PROPERTIES IN
THE COURTS OF ANY JURISDICTION.
(b) EACH GUARANTOR AND FI HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY
AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY NEW YORK
STATE OR FEDERAL COURT. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(c) EACH PARTY TO THIS AGREEMENT IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 10.01. NOTHING IN THIS AGREEMENT WILL
AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 10.16. Confidentiality. Each Bank agrees
(which agreement shall survive the termination of this
Agreement) that financial information, information from
FTX's and its Subsidiaries' books and records, information
concerning FTX's and its Subsidiaries' trade secrets and
patents and any other information received from FTX and its
Subsidiaries hereunder shall be treated as confidential by
such Bank, and each Bank agrees to use its best efforts to
ensure that such information is not published, disclosed or
otherwise divulged to anyone other than employees or
officers of such Bank and its counsel and agents; provided
that it is understood that the foregoing shall not apply to:
(i) disclosure made with the prior written authorization
of FTX;
(ii) disclosure of information (other than that
received from FTX and its Subsidiaries prior to or
under this Agreement) already known by, or in the
possession of, such Bank without restrictions on the
disclosure thereof at the time such information is
supplied to such Bank by FTX or a Subsidiary hereunder;
(iii) disclosure of information which is required by
applicable law or to a governmental agency having
supervisory authority over any party hereto;
(iv) disclosure of information in connection with
any suit, action or proceeding in connection with the
enforcement of rights hereunder or in connection with
the transaction contemplated hereby or thereby;
(v) disclosure to any bank (or other financial
institution) which may acquire a participation or other
interest in the Loans or rights of any Bank hereunder;
provided that such bank (or other financial institution)
agrees to maintain any such information to be
received in accordance with the provisions of this
Section 10.16;
(vi) disclosure by any party hereto to any other
party hereto or their counsel or agents;
(vii) disclosure by any party hereto to any entity,
or to any subsidiary of such an entity, which owns,
directly or indirectly, more than 50% of the voting
stock of such party, or to any subsidiary of such an
entity; or
(viii) disclosure of information that prior to such
disclosure has become public knowledge through no
violation of this Agreement.
SECTION 10.17. Judgment Currency. The
specification of payment in Dollars and in New York City,
New York, with respect to amounts payable to any Bank (or
Transferee), the Agent or the FI Trustee hereunder and under
the other Loan Documents is of the essence, and Dollars
shall be the currency of account in all events. The payment
obligations of FI or either Guarantor under this Agreement
or any other Loan Document shall not be discharged by an
amount paid in another currency or in another place, whether
pursuant to a judgment or otherwise, to the extent that the
amount so paid on conversion to Dollars and transfer to New
York City under normal banking procedures does not yield the
amount of Dollars in New York City due hereunder. If for
the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in Dollars into
another currency (the "second currency"), the rate of
exchange which shall be applied shall be that at which in
accordance with normal banking procedures the Agent could
purchase Dollars with the second currency on the Business
Day next preceding that on which such judgment is rendered.
The obligation of FI and each Guarantor in respect of any
such sum due from it to the Agent, the FI Trustee or any
Bank (or Transferee) hereunder or under any other Loan
Document (an "entitled person") shall, notwithstanding the
rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that on the
Business Day following receipt by such entitled person of
any sum adjudged to be due hereunder or under any other Loan
Document in the second currency such entitled person may in
accordance with normal banking procedures purchase in the
free market and transfer to New York City Dollars with the
amount of the second currency so adjudged to be due; and FI
and each Guarantor hereby agree, as a separate obligation
and notwithstanding any such judgment, jointly and severally
to indemnify such entitled person against, and to pay such
entitled person on demand, in Dollars in New York City, the
difference between the sum originally due to such entitled
person in Dollars and the amount of Dollars so purchased and
transferred.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
P.T. FREEPORT INDONESIA
INDONESIA COMPANY,
by
/s/_____________________
Name: Robert M. Wohleber
Title: Vice President and
Treasurer
1615 Poydras Street
New Orleans, Louisiana 70112
Attention: Robert M. Wohleber
Vice President and
Treasurer
Telex: 8109515386
Telephone: 504-582-1758
Telecopy: 504-582-4511
FREEPORT-McMoRan INC.,
by
/s/_____________________
Name: Robert M. Wohleber
Title: Vice President and
Treasurer
1615 Poydras Street
New Orleans, Louisiana 70112
Attention: Robert M.Wohleber
Vice President
and Treasurer
Telex: 8109515386
Telephone: 504-582-1758
Telecopy: 504-582-4511
FREEPORT-McMoRan COPPER & GOLD
INC.,
by
/s/_____________________
Name: Robert M. Wohleber
Title: Vice President and
Treasurer
1615 Poydras Street
New Orleans, Louisiana 70112
Attention: Robert M. Wohleber
Vice President and
Treasuer
Telex: 8109515386
Telephone: 504-582-1758
Telecopy: 504-582-4511
CHEMICAL BANK, individually and as
Agent,
by
/s/_____________________
Name: Mary Jo Woodford
Title: Vice President
Domestic Office and LIBOR Office:
270 Park Avenue
New York, New York 10017
Attention: Mary Jo Woodford
Telephone: 212-270-8895
with a copy to
John Gehebe
Chemical Bank
270 Park Avenue
New York, New York 10017
Telephone: 212-270-3531
Telecopy: 212-270-3871
with copies to:
Agent Bank Services
140 East 45th Street
New York, New York 10017
Attention: Hilma Gabbidon
Telephone: 212-622-0693
Telex: 353006 ABSCNYK
Telecopy: 212-622-0002
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK (for purposes of
Article VIII only), as FI Trustee,
by
/s/_____________________
Name: P.J. Crowley
Title: Vice President