Exhibit 10.20
AMENDMENT dated as of April 16, 2001 to the
Credit Agreement dated as of December 12, 1997, as
amended and restated as of November 17, 1998, as
amended as of January 20, 1999 and as of August 11,
2000 (the "Credit Agreement"), among FREEPORT-McMoRan
SULPHUR LLC, a Delaware limited liability company (the
"Borrower"); McMoRan EXPLORATION CO., a Delaware
corporation, as guarantor (in such capacity, the
"Guarantor"); the several lenders from time to time
party thereto (collectively, the "Lenders"), THE CHASE
MANHATTAN BANK, a New York banking corporation
("Chase"), as administrative agent for the Lenders (in
such capacity, the "Administrative Agent"), as
documentary agent for the Lenders (in such capacity,
the "Documentary Agent") and as collateral agent for
the Lenders (in such capacity, the "Collateral Agent";
the Administrative Agent, the Documentary Agent and the
Collateral Agent being, collectively, the "Agents") and
HIBERNIA NATIONAL BANK, a national banking association
("Hibernia"), as co-agent for the Lenders (the "Co-
Agent").
WHEREAS, the Borrower and the Guarantor have requested
that the Lenders approve amendments to certain provisions of the
Credit Agreement;
WHEREAS the Lenders are willing, on the terms, subject
to the conditions and to the extent set forth below, to amend
such provisions; and
WHEREAS capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in the
Credit Agreement.
NOW, THEREFORE, 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. Amendments. Effective as of the April
Amendment Effective Date (as defined in Section 3 hereof), the
Credit Agreement is hereby amended as follows:
(a) The following definitions are added to Section
1.01 in their appropriate alphabetical position:
"April Amendment" means the Amendment to this
Agreement dated as of April 16, 2001.
"April Amendment Effective Date" is defined in
Section 3 of the April Amendment.
"Main Pass Oil Operations" means the businesses
and operations of the Borrower relating to the hydrocarbon
leasehold interests of the Borrower in the Main Pass Block
299 Field."
(b) Each of the following definitions in Section 1.01
is amended and restated in its entirety as follows:
"Applicable Margin" means (a) with respect to any
outstanding LIBO Rate Loan, (i) at all times from the April
Amendment Effective Date through July 31, 2001, 3.50% and
(ii) at all times thereafter, 4.50%, (b) with respect to any
Reference Rate Loan, (i) at all times from the April
Amendment Effective Date through July 31, 2001, 0.50% and
(ii) at all times thereafter, 1.50%, and (c) with respect to
the Commitment Fees, 0.50%.
"Loan Documents" means the Amendment, the April
Amendment, the Credit Agreement, the Security Documents and
all other agreements, certificates and instruments now or
hereafter entered into in connection therewith or in
furtherance thereof, in each case as amended and modified
from time to time.
"Maturity Date" means August 31, 2001.
(c) Section 2.05(a) is amended by adding the following
proviso immediately prior to the period at the end thereof:
"; provided that for any day on or after the April
Amendment Effective Date that the Applicable LIBO Rate is
greater than the Applicable Reference Rate, each Reference
Rate Loan outstanding on such day shall bear interest at the
Applicable LIBO Rate".
(d) Section 2.10 is amended and restated in its
entirety as follows:
"SECTION 2.10. Continuation and Conversion of Loans.
On or after the April Amendment Effective Date, the Borrower
shall not have the right to continue or convert any type of
Loans as or into LIBO Rate Loans, and at the end of the
Interest Period with respect to any outstanding LIBO Rate
Loan, such Loan shall be converted into a Reference Rate
Loan."
(e) Section 5.01(p) is inserted in its entirety as
follows:
"(p) Sale of Main Pass Oil Operations. In the
event that any amount shall be due and payable under this
Agreement on August 31, 2001 and such amounts shall not be
paid in full on such date, the Borrower shall sell to MOXY
the Main Pass Oil Operations owned by it no later than
August 31, 2001. The Net Proceeds of such sale shall be
used to repay outstanding Loans and other amounts due and
payable under this Agreement. The Borrower agrees that the
purchase price of the Main Pass Oil Operations shall reflect
fair market value and shall be determined by reference to an
updated reserve calculation by Xxxxx Xxxxx Company or
another independent firm approved by the Administrative
Agent and the Co-Agent using oil and gas price assumptions
agreed upon by the Borrower, the Agent and the Co-Agent.
The Borrower agrees to initiate such updated calculations no
later than August 1, 2001 if any amounts will be outstanding
under the credit agreement on August 1, 2001."
(f) Section 5.02(e) is amended and restated in its
entirety as follows:
(e) Minimum EBITDA. The Guarantor shall not
permit the sum of the EBITDA for the six month period ending
June 30, 2001 to be less than $2,500,000.
(g) Section 7.01(n) is amended by deleting the word
"and" at the end thereof.
(h) Section 7.01(o) is amended by replacing the period
at the end thereof with the text "; and".
(i) Section 7.01(p) is inserted in its entirety as
follows:
"(p) within 30 days after the April Amendment
Effective Date, (i) the Borrower and MOXY shall not have
entered into a purchase and sale agreement that is in form
and substance reasonably satisfactory to the Required
Lenders and, in the judgment of the Required Lenders, is
capable of being consummated no later than the Maturity Date
requiring the Borrower to sell to MOXY the Main Pass Oil
Operations owned by it in the event that all amounts due and
payable under this Agreement have not been paid in full on
the Maturity Date and (ii) the purchase and sale agreement
required pursuant to clause (i) shall not have been entered
into for the benefit of, and assigned to, the Lenders."
SECTION 2. Representations and Warranties. Each of
the Borrower and the Guarantor represents and warrants to each of
the Lenders that, after giving effect to the amendments
contemplated hereby, (a) the representations and warranties of
the Borrower or the Guarantor, as applicable set forth in the
Loan Documents are true and correct in all material respects on
and as of the date of this April Amendment, except to the extent
such representations and warranties expressly relate to an
earlier date (in which case such representations and warranties
shall be true and correct in all material respects as of the
earlier date) and (b) no Default or Event of Default has occurred
and is continuing.
SECTION 3. Effectiveness. This April Amendment shall
become effective as of the first date (the "April Amendment
Effective Date") when the following conditions are satisfied:
(a) The Administrative Agent (or its counsel)
shall have received duly executed counterparts hereof that,
when taken together, bear the signatures of each of the
Borrower, the Guarantor and each of the Lenders;
(b) The Administrative Agent shall have received,
on behalf of themselves and the Lenders, a favorable written
opinion of Jones, Walker, Waechter, Poitevent, Carrere &
Xxxxxxx, L.L.P., counsel for the Guarantor and the Borrower,
in a form satisfactory to the Administrative Agent and
counsel to the Administrative Agent, in each case (A) dated
the April Amendment Effective Date, (B) addressed to the
Agents and the Lenders, and (C) covering such matters
relating to the Loan Documents, and the transactions
contemplated thereby, as the Administrative Agent shall
reasonably request, and each of the Guarantor and the
Borrower hereby instructs such counsel to deliver such
opinions.
(c) All legal matters incident to this April
Amendment, the borrowings and extensions of credit under the
Credit Agreement or the other Loan Documents shall be
satisfactory to the Administrative Agent and counsel to the
Administrative Agent.
(d) The Administrative Agent shall have received
(i) a copy of the articles of organization, including all
amendments thereto, of the Borrower and the certificate of
incorporation, including all amendments thereto, of the
Guarantor, each certified as of a recent date by the
Secretary or Assistant Secretary of the Borrower and the
Guarantor, and a long-form good standing certificate of each
of the Borrower and the Guarantor as of a recent date, from
the Secretary of State of the state of its organization;
(ii) a certificate of the Secretary or Assistant Secretary
of each of the Borrower and the Guarantor dated the April
Amendment Effective Date and certifying (A) in the case of
the Guarantor, that attached thereto is a true and complete
copy of the by-laws of the Guarantor as in effect on the
April Amendment Effective Date and at all times since a date
prior to the date of the resolutions described in clause (B)
below and, in the case of the Borrower, that attached
thereto is a true and complete copy of the operating
agreement of the Borrower as in effect on the April
Amendment Effective Date and at all times since a date prior
to the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors of the Guarantor,
individually and in its capacity as the sole member of the
Borrower, authorizing the execution, delivery and
performance of the April Amendment, and that such
resolutions have not been modified, rescinded or amended and
are in full force and effect, (C) that neither the
certificate of incorporation and by-laws of the Guarantor
nor the articles of organization and the operating agreement
of the Borrower have been amended since the date of the last
amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above or date of the
certificate furnished pursuant to clause (i) above, as
applicable, and (D) as to the incumbency and specimen
signature of each officer executing the April Amendment or
any other document delivered in connection herewith on
behalf of the Borrower and the Guarantor; (iii) a
certificate of a Responsible Officer as to the incumbency
and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to clause (ii)
above; and (iv) such other documents as the Administrative
Agent or its counsel may reasonably request.
(e) The Agents shall have received a certificate,
dated the April Amendment Effective Date and signed by a
Responsible Officer of the Guarantor, confirming compliance
with the conditions precedent set forth in paragraphs (i)
and (iii) of Section 6.01.
(f) The Administrative Agent shall have received
all fees and other amounts due and payable on or prior to
the April Amendment Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Borrower
hereunder or under any other Loan Document, such expenses to
include the legal fees of Cravath, Swaine & Xxxxx, counsel
to the Agents.
SECTION 4. Amendment Fee. The Borrower agrees to pay
to each Lender that executes and delivers a copy of this April
Amendment to the Administrative Agent (or its counsel) on or
prior to April 30, 2001 an amendment fee in an amount equal to
0.25% of such Lender's aggregate unused Commitment and
outstanding Loans as of the April Amendment Effective Date;
provided that the Borrower shall have no liability for any such
amendment fee if this Amendment does not become effective. Such
amendment fee shall be payable to each Lender entitled to receive
such fee on (i) the April Amendment Effective Date, in the case
of each Lender entitled to receive such fee on the April
Amendment Effective Date, or (ii) the date that is two Business
Days after the date that the Administrative Agent (or its
counsel) receives an executed copy of this April Amendment from
such Lender, in the case of each Lender that becomes entitled to
receive such fee after the April Amendment Effective Date.
SECTION 5. Applicable Law. THIS APRIL AMENDMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
SECTION 6. No Other Amendments. Except as expressly
set forth herein, this April Amendment shall not by implication
or otherwise limit, impair, constitute a waiver of, or otherwise
affect the rights and remedies of any party under, the Credit
Agreement or any Loan Document, nor alter, modify, amend or in
any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any
Loan 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 Borrower 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 Credit Agreement or any other Loan Document in
similar or different circumstances. This April Amendment shall
apply and be effective only with respect to the provisions of the
Credit Agreement specifically referred to herein.
SECTION 7. Counterparts. This April 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 signature page of this April Amendment by
facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this April Amendment.
SECTION 8. Headings. Section headings used herein are
for convenience of reference only, are not part of this April
Amendment and are not to affect the construction of, or to be
taken into consideration in interpreting, this April Amendment.
IN WITNESS WHEREOF, the Borrower, the Guarantor and the
undersigned Lenders have caused this April Amendment to be duly
executed by their duly authorized officers, all as of the date
first above written.
FREEPORT-McMoRan SULPHUR LLC,
by
Name:
Title:
McMoRan EXPLORATION CO., as
Guarantor,
by
________________________
Name:
Title:
THE CHASE MANHATTAN
BANK, individually and as Administrative
Agent, Documentary Agent and Collateral
Agent,
by
Name:
Title:
HIBERNIA NATIONAL BANK,
by
Name:
Title:
BANK OF MONTREAL,
by
Name:
Title:
THE BANK OF NOVA SCOTIA,
by
Name:
Title:
THE BANK OF TOYKO-MITSUBISHI, LTD.,
HOUSTON AGENCY,
by
Name:
Title:
BANK ONE, NA (f/k/a Bank One
Louisiana, NA)
by
Name:
Title:
THE FUJI BANK LIMITED-HOUSTON
AGENCY,
by
Name:
Title:
MELLON BANK, N.A.,
by
Name:
Title:
