Exhibit 10.35
EXECUTION COPY
AMENDMENT dated as of April 3, 2002
(this "Amendment") to the Credit Agreement dated as of
December 12, 1997, as amended and restated as of
November 17, 1998, as amended (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 referred to herein as the "Agents");
and HIBERNIA NATIONAL BANK, a national banking
association, 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 pursuant to the March 2002 Amendment, each of
the Lenders shall have consented in writing to the purchase and
sale agreement, including the terms, conditions and pricing
thereof, pursuant to which the Sulphur Disposition shall be
consummated;
WHEREAS the Lenders are willing, on the terms, subject
to the conditions and to the extent set forth below, to amend
such provisions and consent to such purchase and sale agreement;
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 and
other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, 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 2002
Amendment Effective Date (as defined in Section 4 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 2002 Amendment" means the Amendment to this
Agreement dated as of April 3, 2002.
"April 2002 Amendment Effective Date" shall have
the meaning given such term in Section 5 of the April 2002
Amendment.
"IMC/FSC Agreement" means the IMC/FSC Agreement
dated as of March 29, 2002 by and among IMC Global Inc., IMC
Phosphates Company, Phosphates Resource Partners limited
Partnership, IMC Phosphates MP, Inc., the Borrower, MOXY and
the Guarantor.
"IMC/Savage Documents" means the IMC/FSC
Agreement, the Purchase and Sale Agreement, the Owned
Terminals Side Agreement and the Master Agreement, in each
case without giving effect to any amendment, supplements, or
modifications thereto.
"Master Agreement" means the Master Agreement
dated as of March 29, 2002 by and among Savage Industries
Inc., IMC Global Inc., Gulf Sulphur Services Ltd., LLP, the
Borrower, MOXY and the Guarantor.
"Maturity Date" means May 31, 2002.
"Owned Terminals Side Agreement" means the Owned
Terminals Side Agreement dated as of March 29, 2002 among
the Borrower, MOXY, the Guarantor and Gulf Sulphur Services
Ltd., LLP.
"Purchase and Sale Agreement" means the Purchase
and Sale Agreement dated as of March 29, 2002 by and among
the Borrower, MOXY, the Guarantor and Gulf Sulphur Services
Ltd., LLP.
(b) The following definitions in Section 1.01 is
amended and restated in their entirety as follows:
"Budget Periods" means each of the months ending
March 31, 2002, April 30, 2002 and May 31, 2002.
"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 February 2002 Amendment, the
February 2002 Consent, the March 2002 Amendment, the April
2002 Amendment, the Credit Agreement, the MOXY Guarantee
Agreement, the Security Documents, the MOXY 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.
(c) For purposes of clarification only, Section
5.02(s) of the Credit Agreement as described in the January 2002
Amendment is relettered as Section 5.02(v) as a result of the
addition in the March 2002 Amendment of Sections 5.02(r) through
(u) and reads in its entirety as follows:
"(v) 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."
(d) Section 5.02 (w) is added to read in its entirety
as follows:
"(w) Compliance with Budget. The Guarantor shall not
(i) permit EBITDA of the Guarantor, the Borrower and the
Restricted Subsidiaries for any Budget Period to be less
than the amount set forth opposite such Budget Period below:
Budget Period Minimum EBITDA
March 31, 2002 $ 500,000
April 30, 2002 $ 0
May 31, 2002 $(275,000)."
(e) A new Section 7.01(p) is amended to read in its
entirety as follows:
"(p) In the event that any of the IMC/Savage Documents
is terminated or any of the transactions contemplated by any
of the IMC/Savage Documents is terminated or abandoned, the
Loans shall become due and payable without any notice by, or
action on the part, of any Lender or the Administrative
Agent seven days after such termination or abandonment
unless the Borrower shall have entered into a letter of
intent with another purchaser providing for a Sulphur
Disposition which, in the judgment of the Lenders, is
capable of being consummated no later than May 31, 2002, and
such letter of intent and Sulphur Disposition, including
without limitation, the terms, conditions and pricing
thereof, shall have been consented to in writing by each of
the Lenders in its discretion pursuant to a notice to the
Administrative Agent."
SECTION 2. Approval of IMC/Savage Documents. The
undersigned Lenders hereby confirm that each of the Purchase and
Sale Agreement, the IMC/FSC Agreement, the Owned Terminals Side
Agreement and the Master Agreement is satisfactory to such
Lender; provided that none of the Purchase and Sale Agreement,
the Master Agreement, the Owned Terminals Side Agreement or the
IMC/FSC Agreement is amended, modified or otherwise supplemented
prior to the Closing Date (as defined in the Purchase and Sale
Agreement) in any manner that is adverse to the interests of the
Lenders without the consent of such Lender; provided further that
(a) the foregoing consent is conditioned upon the actual inflows
and outflows related to the IMC/Savage Documents being
substantially similar to those set forth in the Preliminary
Closing Statement dated March 25, 2002 attached to the letter
dated March 27, 2002 from Xxxxxxx X. Xxxxxxxx to the FSC bank
group previously provided to the Lenders and (b) in no event
shall the "Adjusted Bank Borrowings" (as described in such
Preliminary Closing Statement) exceed $8,000,000.
SECTION 3. 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 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 such
earlier date) and (b) no Default or Event of Default has occurred
and is continuing.
SECTION 4. Effectiveness. This April 2002 Amendment
shall become effective as of the first date (the "April 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 the Borrower,
the Guarantor, MOXY and each of the Lenders;
(b) The Administrative Agent shall have received
a favorable written opinion of Jones, Walker, Waechter,
Poitevent, Carrere & Xxxxxxx, L.L.P., counsel to the
Borrower, the Guarantor and MOXY, in a form satisfactory to
the Administrative Agent and counsel to the Administrative
Agent, in each case (A) dated the April 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 Borrower, the Guarantor and MOXY hereby instructs such
counsel to deliver such opinions;
(c) All legal matters incident to this April 2002
Amendment 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, the Guarantor and MOXY dated the April
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 each of the
Guarantor, individually and in its capacity as the sole
member of the Borrower, and of the Borrower and MOXY
authorizing the execution, delivery and performance of the
April 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 or MOXY have been amended since the versions
thereof that were delivered in connection with the March
2002 Amendment (or represented as being unchanged from the
immediately prior amendment); (ii) a certificate of the
Secretary or Assistant Secretary of the Borrower dated the
April 2002 Amendment Effective Date and certifying (A) that
the Borrower is a 50% member of Sulphur Assets Holding
Company, LLC, a Delaware limited liability company ("SAHC"),
(B) that SAHC is the general partner of Gulf Sulphur
Services Ltd., LLP, a Texas limited partnership ("GSSLL"),
(C) that attached thereto is a true and complete copy of the
certificate of formation of SAHC, (d) that attached thereto
are true and complete copies of the certificate of limited
partnership, the application for registered limited
liability partnership and the limited partnership agreement
for GSSLL, (iii) a certificate of existence for GSSLL as of
a recent date, from the Texas Secretary of State, (iv) a
certificate of the Guarantor and the Borrower certifying
that attached thereto are copies of each of the IMC/Savage
Documents, including the exhibits and schedules thereto, and
that none of such documents has been amended, supplemented
or otherwise modified and each of the IMC/Savage Documents
is in full force and effect and (v) such other documents as
the Administrative Agent or its counsel may reasonably
request;
(e) The Agents shall have received certificates,
dated the April 2002 Amendment Effective Date and signed by
a Responsible Officer of each of the Guarantor and the
Borrower, confirming compliance on and as of such date 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 April 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 and Xxxxx and Xxxxxxxx, L.L.P., counsel to the Agents,
and all local counsel to the Lenders;
(g) There shall be no litigation or
administrative proceedings or other legal or regulatory
developments, actual or threatened, that, in the reasonable
judgment of the Lenders, involve a reasonable possibility of
a Material Adverse Effect; and
(h) The Agent shall have received new or updated
title reports for State Lease 340.
SECTION 5. Applicable Law. THIS APRIL 2002 AMENDMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
SECTION 6. No Other Amendments. Except as expressly
set forth herein, this April 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 other 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 other 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 2002
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 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 April 2002 Amendment by
facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this April 2002 Amendment.
SECTION 8. Headings. Section headings used herein are
for convenience of reference only, are not part of this April
2002 Amendment and are not to affect the construction of, or to
be taken into consideration in interpreting, this April 2002
Amendment.
IN WITNESS WHEREOF, the Borrower, the Guarantor, MOXY
and the undersigned Lenders have caused this April 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:
McMoRan OIL & GAS LLC,
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:
MIZUHO CORPORATE BANK, LIMITED,
by
Name:
Title:
GE CAPITAL CFE, INC.,
by
Name:
Title:
BANK ONE, NA (f/k/a Bank One Louisiana,NA),
by
Name:
Title:
