EX-10.5 2 q315exhibit105.htm EXHIBIT 10.5
EXECUTION COPY
THIS SIXTH AMENDMENT TO PARTICIPATION AGREEMENT is made September 17, 2015.
BETWEEN:

(1) | P.T. FREEPORT INDONESIA, a limited liability company organized under the laws of the Republic of Indonesia and domesticated in the State of Delaware, U.S.A. (“PT-FI”) and

(2) | P.T. RIO TINTO INDONESIA, a limited liability company organized under the laws of the Republic of Indonesia (“PTRTI”),

WHEREAS

(A) | By a Contract of Work dated December 30, 1991 made between The Government of the Republic of Indonesia (the “Government”) and PT-FI, the Government appointed PT-FI as the sole contractor for the Government with respect to the Contract Area, as defined in the Contract of Work, with the sole rights to explore, mine, process, store, transport, market, sell, and dispose of Products, as defined below, in the Contract Area (defined as aforesaid).

(B) | Pursuant to that certain Participation Agreement dated October 11, 1996, between PT-FI and PTRTI, as amended by the First Amendment to Participation Agreement dated April 30, 1999, the Second Amendment to Participation Agreement dated February 22, 2006, the Third Amendment to Participation Agreement dated October 7, 2009, the Fourth Amendment to Participation Agreement dated November 14, 2013, and the Fifth Amendment to Participation Agreement dated August 4, 2014 (as amended and in effect prior to the effectiveness of this Sixth Amendment, the “Participation Agreement”), PT-FI and PTRTI participate in operations under the COW (as defined below) on the terms and conditions set forth therein.

(C) | PT-FI and PTRTI desire to amend the Participation Agreement as hereinafter set forth.

IT IS HEREBY AGREED as follows:

1. | Definitions. In this Sixth Amendment (including the Schedules and Annexes hereto), unless the context otherwise requires, capitalized terms used herein shall have the meanings provided under the Participation Agreement.

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2. | Amendments To Annex A of The Participation Agreement. With effect from January 1, 2014, the Product Schedule is hereby amended so that it comprises the Product Schedule as set forth on the Schedule attached to this Sixth Amendment.

3. | Representations and Warranties. Each Participant hereby represents and warrants to the other Participant as follows:

(a) | The execution, delivery and performance by such Participant of this Sixth Amendment (i) is within such Participant’s corporate powers, (ii) has been duly authorized by all necessary corporate action, (iii) requires no action by or in respect of, or filing with, any governmental body, agency or official, (iv) does not contravene, or constitute a default under, any provision of any applicable law, statute, ordinance, regulation, rule, order or other governmental restriction or of the certificate or articles of incorporation or by-laws of such Participant, (v) does not contravene, or constitute a default under, any agreement, judgment, injunction, order, decree, indenture, contract lease, instrument or other commitment to which such Participant is a party or by which such Participant or any of its assets are bound and (vi) will not result in the creation or imposition of any lien upon any asset of such Participant under any existing indenture, mortgage, deed of trust, loan or loan agreement or other agreement or instrument to which such Participant is a party or by which it or any of its assets may be bound or affected.

(b) | The Participation Agreement, as amended by this Sixth Amendment, is the legal, valid and binding obligation of such Participant, and is enforceable against such Participant in accordance with its terms, subject to bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights generally and subject to any limitation acts and to general equitable principles.

4. | Reference to and Effect Upon the Participation Agreement. Upon the execution by both Participants of this Sixth Amendment, each reference in the Participation Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, shall mean and be a reference to the Participation Agreement, as amended hereby.

5. | Reaffirmation. Each Participant hereby reaffirms to the other that, except as modified hereby, the Participation Agreement remains in full force and effect and has not been otherwise waived, modified or amended. Except as expressly modified hereby, all of the terms and conditions of the Participation Agreement shall remain unaltered and in full force and effect.

6. | Choice of Law. This Sixth Amendment shall be governed by and construed in accordance with the laws of the State of New York.

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7. | Counterparts. This Sixth Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. One or more counterparts of this Sixth Amendment may be delivered by telecopier, and if so delivered shall be deemed to be delivered with the intention that they shall have the same effect as an original counterpart hereof. Any party delivering any such counterpart by telecopy shall promptly forward to the other party an original counterpart hereof.

IN WITNESS WHEREOF, the parties hereby have caused their duly authorized officers to execute and deliver this Sixth Amendment as of the date first above written.
PT FREEPORT INDONESIA
/s/ Maroef Sjamsooddin

By: | Maroef Sjamsooddin

Its: | President Director

P.T. RIO TINTO INDONESIA
/s/ Greg Sinclair

By: | Greg Sinclair

Its: | President Director

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ANNEX A
Product Schedule

Recovered Metal in Concentrate
Year |  | Copper |  | Gold |  | Silver
|  | (million lbs) |  | (000's ozs) |  | (000's ozs)
1995 |  | 1,029 |  | 1,318 |  | 2,872
1996 |  | 1,085 |  | 1,379 |  | 2,828
1997 |  | 1,140 |  | 1,791 |  | 2,969
1998 |  | 1,022 |  | 1,350 |  | 3,239
1999 |  | 1,165 |  | 1,503 |  | 3,822
2000 |  | 1,052 |  | 1,242 |  | 4,039
2001 |  | 1,132 |  | 1,397 |  | 3,943
2002 |  | 1,090 |  | 1,375 |  | 3,795
2003 |  | 979 |  | 1,456 |  | 3,659
2004 |  | 874 |  | 1,377 |  | 3,077
2005 |  | 1,146.368 |  | 1,870 |  | 4,121
2006 |  | 1,092.005 |  | 1,642.69 |  | 3,934
2007 |  | 1,099 |  | 1,631 |  | 4,045
2008 |  | 1,110 |  | 1,198.7 |  | 4,158
2009 |  | 1,107 |  | 2,004.30 |  | 4,203
2010 |  | 1,099 |  | 1,567 |  | 4,296
2011 |  | 821 |  | 1,045 |  | 3,379
2012 |  | 720.75 |  | 888.28 |  | 2,591.310
2013 |  | 927.25 |  | 1,177.036 |  | 3,867.307
2014 |  | 1,066 |  | 1,697.684 |  | 4,414.383
2015 |  | 1,057 |  | 1,493 |  | 4,156
2016 |  | 1,044 |  | 1,529 |  | 3,768
2017 |  | 1,008 |  | 1,589 |  | 3,359
2018 |  | 1,008 |  | 1,589 |  | 3,359
2019 |  | 1,024 |  | 1,589 |  | 3,396
2020 |  | 1,027 |  | 1,593 |  | 3,405
2021 |  | 470.627 |  | 648.31 |  | 3,878
Future Adjustment Amount 1 |  | 681 |  | 676 |  | ---
Total |  | 28,076 |  | 39,616 |  | 98,573

1 The Future Adjustment Amount for each of copper and gold shall be added to the Product Schedule in accordance with the following:

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(A) | if the Cumulative Target is exceeded prior to January 1, 2021, (i) the Future Adjustment Amount for copper shall be added to the Product Schedule pro rata over a single period of 12 consecutive months in equal amounts per month of 56,750,000 pounds, commencing with the month immediately following the month in which the Cumulative Target for copper is exceeded and (ii) the Future Adjustment Amount for gold shall be added to the Product Schedule pro rata over a single period of 12 consecutive months in equal amounts per month for the first 11 months of 56,333 ounces and for month 12 of 56,337 ounces, commencing with the month immediately following the month in which the Cumulative Target for gold is exceeded. ; or

(B) | if the Cumulative Target is not exceeded prior to January 1, 2021, the Future Adjustment Amount shall be added to the Product Schedule in calendar year 2021.

“Cumulative Target” means (i) with respect to copper, cumulative aggregate copper production of 9.5 billion pounds commencing from 1 January, 2011, and (ii) with respect to gold, cumulative aggregate gold production of 11 million ounces commencing from 1 January, 2011.

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