Exhibit 4.6
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED NOTE AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
NOTE AGREEMENT (this "Amendment"), dated as of December 20,
1996, among FM PROPERTIES OPERATING CO., a Delaware general
partnership ("FM Properties"), FREEPORT-McMoRan INC., a
Delaware corporation ("FTX" or the "Guarantor"), HIBERNIA
NATIONAL BANK, a national banking association ("Hibernia")
and THE CHASE MANHATTAN BANK (successor by merger to
Chemical Bank and The Chase Manhattan Bank (National
Association)), a New York banking corporation ("Chase")
(Hibernia and Chase, the "Banks"), and Hibernia, as Agent
for the Banks (the "Agent").
RECITALS
A. The parties hereto, together with FREEPORT-McMoRan
COPPER & GOLD INC., a Delaware corporation ("FCX"), have
executed a Second Amended and Restated Note Agreement, dated
as of June 30, 1995 (as amended, the "Note Agreement")
relating to a $68,000,000 term loan from the Banks to FM
Properties maturing on June 30, 1997.
B. FM Properties has requested (i) that the maturity
date of the Loan be extended from June 30, 1997 to February
28, 1998, (ii) that the interest rate on the Loan be reduced
from LIBOR plus 1.375% to LIBOR plus 1.00%, (iii) that the
mandatory prepayment requirements upon the sale of the FM
Properties' assets be modified, and (iv) that FCX be
released as a guarantor of a portion of the Obligations and
that FTX become the sole guarantor of all of the
Obligations. The Banks are willing to accept FM
Properties's request on the condition that (a) FM Properties
agree to pay 50% of net proceeds from the sale or sales of
the FM Properties' material assets as mandatory prepayments
of the Obligations, and (b) that FM Properties agree
otherwise on the terms and conditions set forth below.
C. All capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to
them in the Note Agreement.
ARTICLE I.
AMENDMENTS TO THE NOTE AGREEMENT
1. Section 1.1 (Defined Terms) of the Note Agreement
is hereby amended to add or amend the following definitions:
"Company" shall mean FM Properties Inc., a
Delaware corporation, which, as of the date hereof,
holds a 99.8% general partnership interest in FM
Properties.
"FM Properties Credit Agreement" shall mean that
certain Amended and Restated Credit Agreement among FM
Properties, FTX, Chase as administrative, documentation
and FTX Collateral Agent, and certain banks, dated as
of December 20, 1996, relating to a $10,000,000 credit
facility to FM Properties, as such credit agreement may
be amended from time to time.
* * *
"FTX Credit Agreement" shall mean that certain
Second Amended and Restated Credit Agreement among FTX,
FRP, The Chase Manhattan Bank, as Administrative Agent,
Documentation Agent, FTX Collateral Agent and FRP
Collateral Agent (as all such terms are defined
therein), and the Banks party thereto, dated as of
November 14, 1996, as such credit agreement may be
amended from time to time.
"FTX Guaranty" shall mean the guarantee of the
Obligations by FTX pursuant to that certain FTX Amended
and Restated Guaranty Agreement by FTX in favor of the
Agent and others, dated as of December 20, 1996.
* * *
"Intercreditor Agreements" shall mean (i) the FTX
Intercreditor Agreement dated as of June 11, 1992, as
amended and restated in its entirety as of June 1, 1993
and as further amended and restated in its entirety as
of December 31, 1995, and as further amended and
restated in its entirety as of December 20, 1996, among
Chase on behalf of certain banks pursuant to the FTX
Credit Agreement, Chase on behalf of certain banks
pursuant to the FM Properties Credit Agreement, the
Agent, Texas Commerce Bank, and Chase as collateral
agent, as such agreement may be further amended and in
effect from time to time; and (ii) the FM Properties
Intercreditor Agreement dated as of December 31, 1995,
as amended and restated in its entirety as of December
20, 1996, among FM Properties, FTX, the Agent, and
Chase on behalf of certain banks pursuant to the FM
Properties Credit Agreement and Chase, as collateral
agent, as such agreement may be amended and in effect
from time to time.
* * *
"Material Asset" means any single asset of FM
Properties for which, upon the sale thereof, FM
Properties receives in excess of $100,000 in Net
Proceeds.
* * *
"Termination Date" shall mean February 28,
1998, or, if applicable, any earlier date on which
the obligation to pay the Notes in full shall
mature pursuant to this Agreement.
2. Section 3.2 (Optional Prepayments) of the Note
Agreement is hereby amended to delete the following clause
in the 16th and 17th lines thereof: "but only after 15
days' prior notice to the Agent of its intention to do so."
3. Section 3.3(b) (Interest Rate and Payment Dates)
of the Note Agreement is hereby amended to read as follows:
(b) For the period from January 3, 1996 through
December 23, 1996, each Note shall bear interest at the
rate of LIBOR plus one and three-eighths (1.375%)
percent per annum. For the period from December 24,
1996 through the Termination Date, each Note shall bear
interest at the rate of LIBOR plus one (1.00%) percent
per annum. Interest shall be payable in arrears on the
last day of each Reference Period.
4. Section 3.6 (Mandatory Prepayments) of the Note
Agreement is hereby amended to read as follows:
3.6 Mandatory Prepayments. On the last
Business Day of each calendar month, commencing
January 31, 1997, FM Properties shall repay the
principal amount outstanding hereunder in an
amount such that the total amount of all such
payments made by FM Properties pursuant to this
Section 3.6 from December 20, 1996 through the
20th day of each such calendar month is equal to
at least 50% of the aggregate Net Proceeds of all
sales of Material Assets which have occurred since
December 20, 1996, rounded down to the nearest
multiple of $100,000, it being understood that any
amounts not paid as a result of such rounding down
shall be carried over into the calculation of the
next month's payment pursuant to this Section 3.6;
provided that, with respect to any non-cash Net
Proceeds, such determinations shall be made as of
the date of receipt of cash proceeds thereof. At
the time of each payment, FM Properties shall
deliver documentation evidencing the sale of the
Material Assets and the calculation of the Net
Proceeds.
5. Sections 4.3 (Required Collateralization (FCX));
5.1(c); 5.2(c); and 8.3 (Covenants Incorporated by Reference
from the FCX Credit Agreement) of the Note Agreement, and
all references in the Note Agreement to FCX, the FCX
Guaranty, FI, FI Credit Agreement and the FCX Credit
Agreement are hereby deleted (except to the extent that such
terms are used in Section 6.1 of the Note Agreement relating
to conditions to closing the original transaction). The
Banks hereby release FCX from any further liability to the
Banks arising pursuant to the FCX Guaranty, and agree that
on such date the FCX Guaranty shall have no further force
and effect as it relates to the Obligations under the Note
Agreement.
6. Section 11.5(b) (The Agent) of the Note Agreement
is hereby amended to read as follows:
(b) FM Properties agrees to pay Agent, for
Hibernia's account, a non-refundable agent's fee of
$25,000 on January 3, 1997 and $25,000 on January 3,
1998; provided, however, that the fee payable on
January 3, 1998 is payable for the entire year, and if
FM Properties repays the loan in full at any time
during the year, the unearned portion of the fee shall
be returned by the Agent.
7. All references to Chemical Bank or to The Chase
Manhattan Bank (National Association) are hereby replaced
with The Chase Manhattan Bank.
8. The Notes are hereby modified to extend the
maturity dates thereof to February 28, 1998 and to reduce
the interest rate thereof to LIBOR plus one (1.00%) percent
per annum effective December 24, 1996.
9. Each and every other document, agreement or
instrument which was executed in connection with or pursuant
to the Note Agreement is hereby modified to reflect the
extension of the maturity of the Notes, this Amendment to
the Note Agreement and the modification to the documents
contained herein.
ARTICLE II.
CONDITIONS PRECEDENT
1. Conditions to Effectiveness. The following
constitute conditions precedent to the effectiveness of this
Amendment:
(a) Amendment. The Banks shall have received
this Amendment, executed by a Responsible
Officer of FM Properties and FTX.
(b) Loan Participation Agreement. The Banks
shall have executed a Third Amendment to Loan
Participation Agreement.
(c) FM Properties Partnership and Corporate
Proceedings. The Banks shall have received a
certificate of the Secretary or Assistant
Secretary of FTX, as managing general partner
of FM Properties, certifying (i) either that
there have been no amendments to the
partnership agreement of FM Properties since
the effective date of the Note Agreement on
June 30, 1995 or that attached to such
certificate is a certified copy of such
partnership agreement and all amendments
thereto as of the date of such certificate,
and (ii) the incumbency of the officer(s) of
FTX, as managing general partner, executing
this Amendment and all documents related
hereto.
(c) FTX Guaranty. The Banks shall have received
the amended and restated FTX Guaranty,
executed by a Responsible Officer of FTX.
(d) FM Properties Intercreditor Agreement. The
Banks shall have received the amended and
restated FM Properties Intercreditor
Agreement, executed by Responsible Officers
of FM Properties and the other parties
thereto.
(e) FTX Intercreditor Agreement. The Banks shall
have received the amended and restated FTX
Intercreditor Agreement, executed by
Responsible Officers of FTX and the other
parties thereto.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES AND COVENANTS
1. FM Properties. FM Properties hereby certifies to
the Agent and the Banks that all of the representations and
warranties of FM Properties contained in the Note Agreement
remain true and correct as of December 20, 1996, and that no
Default under the Note Agreement has occurred and is
continuing as of December 20, 1996.
2. FTX. FTX hereby certifies (i) that all of the
representations and warranties contained in the FTX Guaranty
Agreement and in the Note Agreement remain true and correct
as of December 20, 1996; (ii) that FTX hereby consents to
the execution of this Amendment; and (iii) that the FTX
Guaranty Agreement remains in full force and effect
following the date of this Amendment.
ARTICLE IV.
MISCELLANEOUS
1. Savings Clause. Except as specifically amended by
this Amendment, all of the other terms and conditions of the
Note Agreement shall remain in full force and effect.
2. Counterparts. This Amendment may be executed by
one or more of the parties to this Amendment on any number
of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same
instrument.
3. Governing Law. This Amendment shall be governed
by, and construed and interpreted in accordance with, the
law of the State of Louisiana.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first
above written.
FM PROPERTIES OPERATING CO.
BY: FREEPORT-McMoRan INC.,
Managing General Partner
By: ____________________________
X. Xxxxxx Xxxxxx
Its Treasurer
FREEPORT-McMoRan INC.
By: ____________________________
X. Xxxxxx Xxxxxx
Its Treasurer
HIBERNIA NATIONAL BANK, as Agent
and Bank
By: _____________________________
Xxxxx Xxxxx
Its Banking Officer
THE CHASE MANHATTAN BANK, as Bank
By: _____________________________
Its Vice President
