Exhibit 10.32
EXECUTION COPY
AMENDMENT dated as of January 31, 2002
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, as amended as of August
11, 2000, as amended as of April 16, 2001, as amended
as of August 31, 2001 and as amended as of October 31,
2001 (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"), JPMORGAN
CHASE BANK (f/k/a The Chase Manhattan Bank), a New York
banking corporation, 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 January
2002 Amendment Effective Date (as defined in Section 3 hereof),
the Credit Agreement is hereby amended as follows:
(a) The preamble is hereby amended by inserting the
figure "$60,503,403" in the last line of the second paragraph
thereof.
(b) The following definitions are added to Section
1.01 in their appropriate alphabetical position:
"January 2002 Amendment" means the Amendment to
this Agreement dated as of January 31, 2002.
"January 2002 Amendment Effective Date" is defined
in Section 3 of the January 2002 Amendment.
(c) Each of the following definitions in Section 1.01
is amended and restated in its entirety as follows:
"Loan Documents" means the January 1999 Amendment,
the August 2000 Amendment, the April 2001 Amendment, the
August 2001 Amendment, the October 2001 Amendment, the
January 2002 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 the earlier of (i) the
consummation by the Borrower of the disposition of its
sulphur transportation and terminaling business and (ii)
February 22, 2002.
(d) Section 5.01(l) is amended by inserting the
following text at the end thereof:
"Without limiting the foregoing, each of the Borrower
and the Guarantor agree to deliver to the Collateral Agent
(i) no later than February 15, 2002 (x)a completed
Perfection Certificate with respect to the assets and
properties of McMoRan Oil & Gas LLC signed by a Responsible
Officer of each of the Borrower and the Guarantor, together
with all attachments contemplated thereby, including the
results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to McMoRan Oil & Gas
LLC in the jurisdictions contemplated by the Perfection
Certificate, together with copies of the financing
statements (or similar documents) disclosed by such search,
and accompanied by evidence reasonably satisfactory to the
Collateral Agent that the Liens indicated by such financing
statements (or similar documents) are permitted by the
Credit Agreement, as amended by the January 2002 Amendment,
or have been released, (y) a list of the addresses or
locations, as applicable, of all real estate and all oil and
gas interests, in either case owned or leased by McMoRan Oil
& Gas LLC together with property or similar descriptions of
such properties or interests in form and substance similar
to those that would be required in connection with a
mortgage on such properties and (z) copies of all oil and
gas contracts to which McMoRan Oil & Gas is a party and (ii)
no later than February 5, 2002, all supplemental information
and documents requested by counsel to the Administrative
Agent pursuant to a memorandum dated November 20, 2001;
provided, that with respect to the mortgage on the Port
Xxxxxx Terminal in Tampa, Florida, the Borrower and the
Guarantor shall have presented to, and diligently pursued
with, the Board of Directors of the Tampa Port of Authority
a consent for a mortgage of the Borrower's leasehold
interest in such terminal no later than the next regularly
scheduled meeting of such Board of Directors and counsel to
the Borrower and the Lenders shall have negotiated the
leasehold mortgage relating to such terminal by February 15,
2002 (including, without limitation, the inclusion of the
property description and other documents reasonably
requested by counsel to the Lenders)."
(e) Section 5.01(p) is amended to read 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 the Maturity Date 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 the
Maturity Date. 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."
(f) Section 5.01(r) is inserted to read in its entirety
as follows:
"(r) Guarantee and Pledge Relating to McMoRan Oil
& Gas LLC. Upon the earlier of the termination of, or the
repayment in full of all amounts outstanding under and the
termination of the revolving credit commitments under, the
Amended and Restated Credit Agreement dated as of June 15,
2000 among McMoRan Oil & Gas LLC, as Borrower, Chase Bank of
Texas, National Association, as Agent and the Lenders party
thereto, the Guarantor agrees (i) to cause McMoRan Oil & Gas
LLC to enter into a Guarantee of the Obligations in a form
acceptable to the Administrative Agent and (ii) to grant a
security interest securing the Obligations in substantially
all of its assets pursuant to documentation in a form
acceptable to the Collateral Agent, in each case subject to
the approval of the Board of Directors of each of the
Guarantor and McMoRan Oil & Gas LLC (which approval shall be
granted in each case no later than February 7, 2002)."
(g) Section 5.02(s) is inserted to read in its entirety
as follows:
"(s) Limitation on Borrowings. Neither the Guarantor
nor the Borrower shall permit, at any time on and after the
January 2002 Amendment Effective Date, Loans in an aggregate
principal amount in excess of $58,500,000 to be outstanding
at such time."
(h) Section 7.01(d) of the Credit Agreement is amended
to read in its entirety as follows:
"(d) default by the Borrower or the Guarantor in
the due observance or performance of any covenant,
condition or agreement in Section 5.01(a)(i)(5) or
5.01(a)(ii)(4), respectively, with respect to notices
of Defaults or Events of Default, or Section
5.01(a)(8), 5.01(c) or 5.01(k), Section 5.01(r), other
than the covenant to preserve and maintain all of the
Borrower's and the Guarantor's rights, privileges and
franchises desirable in the normal conduct of their
respective businesses;".
(i) Schedule II to the Credit Agreement is replaced
with Schedule II attached hereto.
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 January 2002 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 January 2002 Amendment
shall become effective as of the first date (the "January 2002
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 January 2002 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 January
2002 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 certificate of the Secretary or Assistant Secretary of
each of the Borrower and the Guarantor dated the January
2002 Amendment Effective Date and certifying (A) 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 January 2002 Amendment, and that such
resolutions have not been modified, rescinded or amended and
are in full force and effect, (B) that neither the
certificate of incorporation nor the by-laws of the
Guarantor and neither the articles of organization nor the
operating agreement of the Borrower have been amended since
the versions thereof that were delivered in connection with
the October 31, 2001 Amendment; and (ii) such other
documents as the Administrative Agent or its counsel may
reasonably request.
(e) The Agents shall have received certificates,
dated the January 2002 Amendment Effective Date and signed
by a Responsible Officer of the Guarantor and the Borrower,
confirming compliance with the conditions precedent set
forth in paragraphs (i) and (iii) of Section 6.01 of the
Credit Agreement, as amended by this Amendment.
(f) The Administrative Agent shall have received
all fees and other amounts due and payable on or prior to
the January 2002 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. Applicable Law. THIS JANUARY 2002
AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
SECTION 5. No Other Amendments. Except as expressly
set forth herein, this January 2002 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 January
2002 Amendment shall apply and be effective only with respect to
the provisions of the Credit Agreement specifically referred to
herein.
SECTION 6. Counterparts. This January 2002 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 January 2002 Amendment by
facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this January 2002 Amendment.
SECTION 7. Headings. Section headings used herein are
for convenience of reference only, are not part of this January
2002 Amendment and are not to affect the construction of, or to
be taken into consideration in interpreting, this January 2002
Amendment.
IN WITNESS WHEREOF, the Borrower, the Guarantor and the
undersigned Lenders have caused this January 2002 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:
JPMORGAN CHASE BANK
(formerly known as 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 TOKYO-MITSUBISHI,
LTD., HOUSTON AGENCY,
by
Name:
Title:
BANK ONE, NA (f/k/a Bank One
Louisiana, NA)
by
Name:
Title:
THE FUJI BANK, LIMITED,
by
Name:
Title:
MELLON BANK, N.A.,
by
Name:
Title:
