exv10w3






Exhibit 10.3





     FIRST AMENDMENT dated as of January 22, 2009 (this “First
Amendment”), in respect of the AMENDED AND RESTATED CREDIT AGREEMENT
dated as of March 19, 2007, as amended as of July 10, 2007 (the
“Restated Credit Agreement”), which amends and restates the
AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 25, 2006, which
amended and restated the AMENDED AND RESTATED CREDIT AGREEMENT dated as of
September 30, 2003, which amended and restated the AMENDED AND RESTATED
CREDIT AGREEMENT dated as of October 19, 2001, which amended and restated
both the CREDIT AGREEMENT originally dated as of October 27, 1989 and
amended and restated as of June 1, 1993 and the CREDIT AGREEMENT
originally dated as of June 30, 1995, among FREEPORT-MCMORAN COPPER & GOLD
INC., a Delaware corporation, PT FREEPORT INDONESIA, a limited liability
company organized under the laws of the Republic of Indonesia and
domesticated under the laws of Delaware as a corporation, U.S. BANK
NATIONAL ASSOCIATION, a national banking association (for purposes of
Article VIII only), as trustee for the Lenders and certain other lenders
under the FI Trust Agreement, the Lenders party hereto, the Issuing Banks
party hereto, and JPMORGAN CHASE BANK, N.A. (“JPMCB”), as
Administrative Agent, Security Agent, JAA Security Agent and Collateral
Agent, and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
(“Merrill”), as Syndication Agent.



          The Borrowers have requested that the Restated Credit Agreement be amended and restated as set
forth in Section 2 below and the parties hereto are willing so to amend the Restated Credit
Agreement.




          In consideration of the premises and the agreements, provisions and covenants herein
contained, the parties hereto hereby agree, on the terms and subject to the conditions set forth
herein, as follows:




          SECTION 1. Defined Terms. Capitalized terms used and not defined herein have the
meanings given to them in the Restated Credit Agreement.




          SECTION 2. Amendment. The definition of “Consolidated EBITDA” is hereby amended,
effective as of the Amendment Effective Date (as defined below), by inserting at the end thereof
the following paragraph:





“Notwithstanding anything to the contrary contained herein, (A) Consolidated
EBITDA for the quarterly period ending September 30, 2008, shall be equal to (1)
the amount determined as otherwise provided above minus (2) an amount (the
“Third Quarter Reduction”) not to exceed $715,000,000, and (B)
Consolidated EBITDA for the quarterly period









 



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ending December 31, 2008, shall be equal to (1) the amount determined as otherwise
provided above plus (2) the Third Quarter Reduction.”



          SECTION 3. Representations and Warranties. Each Borrower represents and warrants as
of the date hereof and as of the Amendment Effective Date that, before and after giving effect to
this First Amendment (a) the representations and warranties of each Loan Party set forth in the
Loan Documents are true and correct in all material respects, except where such representations and
warranties expressly relate to an earlier date, in which case such representations and warranties
shall have been true and correct in all material respects as of such earlier date and (b) no
Default has occurred and is continuing.




          SECTION 4. Amendment Fee. The Borrowers agree to pay on the Amendment Effective Date
to each Lender that shall have delivered a counterpart on or prior to 3:00 p.m., New York time, on
January 22, 2009, an amendment fee (the “Amendment Fee”) in an amount equal to 0.125% of
the aggregate Commitments of such Lender. The Amendment Fee shall be payable on and subject to the
occurrence of the Amendment Effective Date. The Amendment Fee shall be payable in immediately
available funds and shall not be refundable.




          SECTION 5. Effectiveness. The amendment provided for in Section 2 hereof shall become
effective on the date (the “Amendment Effective Date”) on which (a) the Administrative
Agent shall have received counterparts of this First Amendment from Lenders constituting the
Required Lenders and from each Borrower, in each case signed on behalf of each such party, and
(b) each Lender that shall have delivered a counterpart on or prior to 3:00 p.m., New York time, on
January 22, 2009, shall have received the Amendment Fee.




          SECTION 6. Effect of Waiver and Amendment. Except as expressly set forth herein, this
First Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or
otherwise affect, the rights and remedies of the Lenders under the Restated Credit Agreement or any
related document, and shall not alter, modify, amend, limit or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Restated Credit Agreement or any
related document, all of which are ratified and affirmed in all respects and shall continue in full
force and effect. Nothing herein shall be deemed to entitle the Borrowers to a consent to, or a
waiver, amendment, modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Restated Credit Agreement or any other related document in
similar or different circumstances.




          SECTION 7. Applicable Law. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.




          SECTION 8. Counterparts. This First Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when taken together shall
constitute but one contract. Delivery of an executed counterpart of a









 



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signature page of this First Amendment by telecopy shall be effective as delivery of a
manually executed counterpart of this First Amendment. This First Amendment shall constitute a
“Loan Document” for all purposes of the Restated Credit Agreement and the other Loan Documents.




          SECTION 9. Expenses. The Borrowers agree to reimburse the Administrative Agent for
all reasonable out-of-pocket expenses incurred by it in connection with this First Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine & Moore LLP and other
counsel for the Administrative Agent.




          SECTION 10. Headings. The headings of this First Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.











 



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          IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed by
their respective authorized officers as of the day and year first above written.




	 	 	 	 	 	 	 
	 	 	FREEPORT-MCMORAN COPPER &
GOLD INC.,	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






	 	 	 	 	 	 	 
	 	 	PT FREEPORT INDONESIA	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



5


	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., 

individually, as
Administrative Agent,
Collateral Agent, Issuing
Bank and Swingline Lender,	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 












 



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Signature Page to be executed by Lenders

under the Restated Credit Agreement




	 	 	 	 	 	 	 	 	 
	 	 	SIGNATURE PAGE to the FIRST
AMENDMENT dated as of January
22, 2009, in respect of the
AMENDED AND RESTATED CREDIT
AGREEMENT dated as of March 19,
2007, as amended as of July 10,
2007, which amends and restates
the AMENDED AND RESTATED CREDIT
AGREEMENT dated as of July 25,
2006, which amended and restated
the AMENDED AND RESTATED CREDIT
AGREEMENT dated as of September
30, 2003, which amended and
restated the AMENDED AND
RESTATED CREDIT AGREEMENT dated
as of October 19, 2001, which
amended and restated both the
CREDIT AGREEMENT originally
dated as of October 27, 1989 and
amended and restated as of June
1, 1993 and the CREDIT AGREEMENT
originally dated as of June 30,
1995, among FREEPORT-MCMORAN
COPPER & GOLD INC., a Delaware
corporation, PT FREEPORT
INDONESIA, a limited liability
company organized under the laws
of the Republic of Indonesia and
domesticated under the laws of
Delaware as a corporation, U.S.
BANK NATIONAL ASSOCIATION, a
national banking association
(for purposes of Article VIII
only), as trustee for the
Lenders and certain other
lenders under the FI Trust
Agreement, the Lenders party
hereto, the Issuing Banks party
hereto, and JPMORGAN CHASE BANK,
N.A., as Administrative Agent,
Security Agent, JAA Security
Agent and Collateral Agent, and
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED, as
Syndication Agent.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Lender:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 

Name:
	 	 
	 

	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 

Name:
	 	 
	 

	 	 	 	 	 	Title: