Exhibit 10.24
SECOND AMENDMENT AND SUPPLEMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT AND SUPPLEMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT (this "Second Amendment") is made and entered
into as of the 9th day of November, 2001 (the "Effective Date"),
among McMoRan OIL & GAS LLC (successor by merger with McMoRan Oil
& Gas Co.), a Delaware limited liability company ("Borrower");
THE CHASE MANHATTAN BANK (formerly Chase Bank of Texas, National
Association and hereinafter called "Chase"), as agent (in such
capacity, the "Agent") for each of the lenders (the "Lenders")
that is a signatory or which becomes a signatory to the
hereinafter defined Credit Agreement; and the Lenders.
R E C I T A L S:
A. On June 15, 2000, the Borrower, the Lenders and the Agent
entered into a certain Amended and Restated Credit Agreement
(excluding Annex I, as hereinafter defined, the "Credit
Agreement") whereby, upon the terms and conditions therein
stated, the Lenders agreed to make certain Tranche A Loans (as
such term is defined in the Credit Agreement) and extend certain
credit to the Borrower.
B. On June 15, 2000, the Borrower, the Lenders and the Agent
entered into Annex I to the Credit Agreement ("Annex I"), whereby
the Lenders agreed to make certain Tranche B Loans (as such term
is defined in Annex I) and extend certain credit to the Borrower
C. Bank of Montreal and Fleet National Bank are withdrawing as
Lenders under the Tranche A Credit Facility (as such term is
defined in the Credit Agreement), but will remain as Tranche B
Lenders under Annex I.
D. In view of the foregoing, the Borrower, the Lenders and the
Agent mutually desire to amend certain aspects of the Credit
Agreement to, among other things, (i) reflect the departure of
Bank of Montreal and Fleet National Bank as Lenders under the
Tranche A Credit Facility, (ii) adjust the Aggregate Maximum
Tranche A Credit Amount (as defined in the Credit Agreement) and
restate Schedule I attached to the Credit Agreement and (iii) set
the amount of the Borrowing Base (as defined in the Credit
Agreement) to be in effect from the Effective Date until the next
redetermination of the Borrowing Base pursuant to the provisions
of the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the Borrower, the Lenders and the
Agent hereby agree that the Credit Agreement shall be amended as
follows:
1. Certain Definitions.
1.1. Terms Defined Above. As used in this Second Amendment,
the terms "Agent", "Annex I", "Borrower", "Credit Agreement",
"Effective Date", "Second Amendment" and "Lenders" shall have the
meanings indicated above.
1.2. Terms Defined in Credit Agreement. Unless otherwise defined
herein, all terms beginning with a capital letter which are
defined in the Credit Agreement shall have the same meanings
herein as therein unless the context hereof otherwise requires.
2. Amendments to Credit Agreement.
2.1. Defined Terms. The following terms defined in Section
1.02 of the Credit Agreement are hereby amended as follows:
(a) The term "Agreement" is hereby amended to mean the Credit
Agreement, as amended and supplemented by this Second Amendment
and as the same may from time to time be further amended or
supplemented, which shall include, inter alia, Annex I thereto,
as the same may from time to time be amended or supplemented.
(b) The term "Aggregate Maximum Tranche A Credit Amount" is
hereby amended in its entirety to read as follows:
"'Aggregate Maximum Tranche A Credit Amount'
at any time shall equal the sum of the Maximum Tranche
A Credit Amounts of the Lenders ($11,250,000), as the
same may be reduced pursuant to Section 2.03(b)."
(c) The term "Maximum Tranche A Credit Amount" is hereby
amended in its entirety to read as follows:
"'Maximum Tranche A Credit Amount' shall
mean, as to each Lender and subject to the limitation
set forth in Section 2.03 hereof, the amount set forth
opposite such Lender's name on Schedule I attached to
the Second Amendment under the caption "Maximum Tranche
A Credit Amounts" (as the same may be reduced pursuant
to Section 2.03(b) hereof pro rata to each Lender based
on its Percentage Share), as modified from time to time
to reflect any assignments permitted by Section
12.06(b)."
(d) The term "Termination Date" is hereby amended in its
entirety to read as follows:
"'Termination Date' shall mean, unless the
Tranche A Commitments are sooner terminated pursuant to
Sections 2.03(b) or 10.02 hereof, January 25, 2002."
2.2. Additional Defined Terms. Section 1.02 of the Credit
Agreement is hereby further amended and supplemented by adding
the following new definitions, which read in their entirety as
follows:
"'Effective Date of the Second Amendment'
shall mean November 9, 2001."
"'Second Amendment' shall mean that certain
Second Amendment and Supplement to Amended and Restated
Credit Agreement dated as of November 9, 2001, among
the Borrower, the Lenders and the Agent."
2.3. Section 2.01(d). Subsection (d) of Section 2.01 is
hereby deleted in its entirety.
2.4. Changes of Commitments. Section 2.03 of the Credit
Agreement is hereby amended and supplemented by adding thereto a new
subsection (c) , reading in its entirety as follows:
"(c) From and after the Effective Date of the
Second Amendment, Bank of Montreal and Fleet National
Bank will no longer be Lenders under the Tranche A
Credit Facility or any of the Tranche A Loan Documents
(except for Annex I). As a result, Bank of Montreal
and Fleet National Bank shall no longer have any rights
or obligations under this Agreement with respect to the
Tranche A Credit Facility or the other Tranche A Loan
Documents (except for Annex I), except that their
rights and/or obligations under Sections 4.06(c), 12.03
and Annex I shall not be affected. By signing below,
Bank of Montreal and Fleet National Bank agree to the
provisions of this Section 2.03(c)."
2.5. Borrowing Base. Section 2.08 of the Credit Agreement is
hereby amended as follows:
(a) The first full sentence of Section 2.08(a) is hereby amended
in its entirety to read as follows:
"During the period from and after the
Effective Date of the Second Amendment until the next
scheduled redetermination of the Borrowing Base in
accordance with this Section 2.08, the amount of the
Borrowing Base shall be $11,250,000."
(b) The last full sentence of Section 2.08(f) is hereby amended
in its entirety to read as follows:
"During the period from the Effective Date of
the Second Amendment to, but not including, the
effective date of the next designation of the Borrowing
Base in accordance with this Section 2.08(f), the
amount of the Borrowing Base shall be $11,250,000."
2.6. Assignments and Participations. Notwithstanding anything to
the contrary contained in the Credit Agreement, including the
provisions of Section 12.06 thereof, each of Bank of Montreal and
Fleet National Bank shall be and hereby is permitted to cease
being a Lender under the Credit Agreement but shall remain a
Tranche B Lender under Annex I.
2.7. Schedule I. Schedule I attached to the Credit
Agreement is hereby amended in its entirety to read as Schedule I
attached to this Second Amendment. From and after the Effective Date,
all references in the Credit Agreement to Schedule I shall be
references to Schedule I attached to this Second Amendment.
3. Conditions Precedent. In addition to all other applicable
conditions precedent contained in the Credit Agreement, the
obligation of the Lenders and the Agent to enter into this
Second Amendment shall be conditioned upon the following
conditions precedent:
(a) The Agent shall have received a copy of this Second
Amendment, duly completed and executed by the Borrower and each
of the Lenders (including Bank of Montreal and Fleet National
Bank);
(b) The Agent shall have received Tranche A Security
Instruments, duly executed and otherwise being in form and
substance satisfactory to the Agent, granting a Lien in favor of
the Agent upon the Oil and Gas Properties described on Exhibit A
attached hereto;
(c) The Agent shall have received the consent of Halliburton
Company, as Guarantor under the Tranche B Credit Facility, to the
terms, provisions and conditions of this Second Amendment or a
letter from Halliburton Company that its consent is not required;
(d) All legal fees due and payable to Xxxxxx & Xxxxxx L.L.P.,
counsel to the Agent, incurred in connection with the Credit
Agreement, Annex I thereto, this Second Amendment and the
transactions contemplated hereby shall have been paid; and
(e) The Agent shall have received such other information,
documents or instruments as it or its counsel may reasonably
request.
4. Release.
(a) Each of the Credit Parties desires and intends fully to
compromise, release and settle any and all of the Released
Claims; and each of the Credit Parties hereby covenants,
warrants and represents unto each of the Departing Lenders that
such Credit Party does hereby FOREVER RELEASE, ACQUIT, WAIVE AND
DISCHARGE each of the Departing Lenders of and from the Released
Claims and each of the Credit Parties hereby declares the same
FOREVER RELEASED, ACQUITTED, WAIVED, SETTLED AND DISCHARGED.
This release is effective without regard to whether (i) such
Released Claims are known or unknown, (ii) damages arising out of
such Released Claims have yet accrued, (iii) such Released Claims
arose collaterally, directly, derivatively or otherwise between
the parties hereto or (iv) an ordinary person in the same or
similar circumstances would or would not, through the exercise of
due care, have discovered such claims by the date of this Second
Amendment.
(b) Each of the Departing Lenders desires and intends
fully to compromise, release and settle any and all of the Released
Claims; and each of the Departing Lenders hereby covenants,
warrants and represents unto each of the Credit Parties that such
Departing Lender does hereby FOREVER RELEASE, ACQUIT, WAIVE AND
DISCHARGE each of the Credit Parties of and from the Released
Claims and each of the Departing Lenders hereby declares the same
FOREVER RELEASED, ACQUITTED, WAIVED, SETTLED AND DISCHARGED.
This release is effective without regard to whether (i) such
Released Claims are known or unknown, (ii) damages arising out of
such Released Claims have yet accrued, (iii) such Released Claims
arose collaterally, directly, derivatively or otherwise between
the parties hereto or (iv) an ordinary person in the same or
similar circumstances would or would not, through the exercise of
due care, have discovered such claims by the date of this Second
Amendment.
In connection with each release granted in this Section 4:
(c) Each of the Borrower, the Agent, Chase, Hibernia National
Bank, Fleet National Bank and Bank of Montreal represents and
warrants that it has the full power and authority to perform the
release granted by it in this Section 4 and it has not in any
manner made any assignment of any Released Claim to any third
party.
(d) The release granted in this Section 4 by each of the
parties hereto will be effective upon the execution of this Second
Amendment by such party.
(e) Each party executing this Second Amendment understands
and agrees that each release granted in this Section 4 is a full,
final and complete release of the Released Claims and that each
such release may be pleaded as an absolute and final bar to any
or all suits which may hereafter be filed or prosecuted by any
one or more of the Credit Parties or the Departing Lenders, as
the case may be, or anyone claiming by, through or under any one
or more of the Credit Parties or the Departing Lenders, as the
case may be, in respect of any of the matters released hereby,
and that no recovery on account of the Released Claims may
hereafter be had from any of the Credit Parties or the Departing
Lenders, as the case may be; and that the consideration given for
each such release is not an admission of liability or fault on
the part of any of the Credit Parties or the Departing Lenders,
as the case may be (it being the express intent of the parties
hereto to obtain peace of mind and avoid the expense and
uncertainty of potential litigation), and that none of the Credit
Parties or the Departing Lenders, as the case may be, or those
claiming by, through or under any of them will ever claim that it
is .
(f) The parties hereto acknowledge that each release
granted by this Section 4: (i) does not have any effect with respect
to obligations and relationships between or among the Borrower, the
Agent, Chase, Hibernia National Bank, Fleet National Bank and
Bank of Montreal under Annex I, and (ii) does not have any effect
with respect to obligations and relationships between or among
the Borrower, the Agent, Chase and Hibernia National Bank under
the Credit Agreement.
As used in this Section 4, the following terms shall have
the following meanings:
"Tranche A Credit Facility Lending Relationship" shall
refer to the Tranche A Credit Facility, together with
any and all negotiations, discussions, acts, omissions,
renewals, extensions and other agreements related to
the Tranche A Credit Facility, the parties' obligations
thereunder and the transactions contemplated thereby,
including, without limitation, any such negotiations,
discussions, acts, omissions, renewals, extensions,
other agreements, or events that may occur on the date
hereof and the instruments and documents executed and
delivered in connection herewith or relating hereto,
expressly excluding Annex I.
"Released Claims" shall mean any and all claims
(including without limitation any liabilities, damages,
demands and causes of action arising therefrom),
whether (a) at law or in equity, (b) on the alleged
commission of a tort, (c) on the alleged breach (or
anticipatory breach or repudiation) of any contract,
duty, or warranty (whether oral or written, express or
implied), (d) on the alleged violation of any statute,
tariff, or regulation (whether promulgated by the
United States , any state thereof, any foreign state or
country, or any other governmental agency or entity,
wherever located), or (e) on any other factual, legal
or equitable theory, including, without limitation, any
claim for damages of any type or nature, for injunctive
or other relief, for attorneys fees, interest or any
other liability whatsoever on any theory, including
without limitation any loss, cost or damage in
connection with or based upon "lender liability" ,
unfair dealing, duress, coercion, control or undue
influence, extortion or commercial bribery, breach of
an implied covenant or duty of good faith and fair
dealing, material misrepresentation or omission,
overreaching, unconscionability, conflict of interest,
bad faith, malpractice, disparate bargaining position,
detrimental reliance, promissory estoppel, estoppel by
deed, waiver, laches, or any other equitable theory,
equitable subordination, breach of fiduciary duty or
any other duty, or tortious inducement to commit such
breach, tortious interference with contract or
prospective business relations, negligent performance
of contractual obligations, or other theories of
negligence, negligent or intentional infliction of
emotional distress, slander, liable, other defamation,
fraudulent transfer, conversion, trespass to (or
clouding the title to) property, usury, violations of
the Racketeer Influenced and Corrupt Organizations Act,
deceptive trade practices, conspiracy, or any theory of
liability as partners or joint venturers, that any
Credit Party may have as of the date hereof against any
Departing Lender in each case described in this
definition, only with respect to the Tranche A Credit
Facility Lending Relationship, or that any Departing
Lender may have as of the date hereof against any
Credit Party in each case described in this definition,
only with respect to the Tranche A Credit Facility
Lending Relationship.
"Departing Lender" shall mean each of Bank of Montreal
and Fleet National Bank, and their respective
predecessors, successors, assigns, directors, officers,
partners, employees, agents, attorneys, principals and
Affiliates and all other Persons liable or who might be
claimed to be liable on behalf of any Departing Lender
(collectively, the "Departing Lenders").
"Credit Party" shall mean each of the Borrower; the
Agent; Chase; Hibernia National Bank; Fleet National
Bank, with respect to Bank of Montreal; and Bank of
Montreal, with respect to Fleet National Bank, and
their respective predecessors, successors, assigns,
directors, officers, partners, employees, agents,
attorneys, principals and Affiliates and all other
Persons who might have a claim against any Departing
Lender (collectively, the "Credit Parties").
5. Bank of Montreal and Fleet National Bank each hereby agree
to return to the Borrower their respective Tranche A Note, marked
"canceled," as soon as practicable following the Effective Date
of this Second Amendment.
6. Default. Any default under this Second Amendment shall
constitute a default under the Credit Agreement.
7. Representations and Warranties. The Borrower represents and
warrants to the Lenders and the Agent that:
(a) there exists no Default or Event of Default, or any
condition or act which constitutes, or with notice or lapse of
time or both would constitute, an Event of Default under the
Credit Agreement, as hereby amended and supplemented;
(b) the Borrower has performed and complied with all covenants,
agreements and conditions contained in the Credit Agreement, as
hereby amended and supplemented, required to be performed or
complied with by it; and
(c) the representations and warranties of the Borrower contained
in the Credit Agreement, as hereby amended and supplemented, were
true and correct when made, and are true and correct in all
material respects at and as of the time of delivery of this
Second Amendment.
8. Extent of Amendments. Except as expressly herein set forth,
all of the terms, conditions, defined terms, covenants,
representations, warranties and all other provisions of the
Credit Agreement (including Annex I thereto) are herein ratified
and confirmed and shall remain in full force and effect.
9. Counterparts. This Second Amendment may be executed in two
or more counterparts, and it shall not be necessary that the
signatures of all parties hereto be contained on any one
counterpart hereof; each counterpart shall be deemed an original,
but all of which together shall constitute one and same
instrument.
10. References. On and after the Effective Date hereof, the
terms "Agreement", "hereof", "herein", "hereunder", and terms of
like import when used in the Credit Agreement shall, except where
the context otherwise requires, refer to the Credit Agreement, as
amended and supplemented by this Second Amendment.
THIS SECOND AMENDMENT, THE CREDIT AGREEMENT, AS AMENDED
HEREBY, THE TRANCHE A NOTES AND THE OTHER TRANCHE A LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
This Second Amendment shall benefit and bind the parties
hereto, as well as their respective assigns, successors, heirs
and legal representatives.
[SIGNATURES ON THE FOLLOWING PAGE]
EXECUTED as of the date first above written.
BORROWER:
McMoRan OIL & GAS LLC
By:
------------------------
Name:
Title:
LENDERS AND AGENT:
THE CHASE MANHATTAN BANK,
Individually and as Agent
By:
-------------------------
Name:
Title:
HIBERNIA NATIONAL BANK
By:
--------------------------
Name:
Title:
DEPARTING LENDERS:
BANK OF MONTREAL
By:
----------------------------
Name:
Title:
FLEET NATIONAL BANK
By:
----------------------------
Name:
Title:
SCHEDULE I
LIST OF MAXIMUM TRANCHE A CREDIT AMOUNTS
Maximum Tranche A
Name of Lender Percentage Share Credit Amount
The Chase Manhattan 66.666667% $7,500,000
Bank
Hibernia National 33.333333% $3,750,000
Bank
-------------------- ---------------- ----------------
Total 100% $11,250,000
