Exhibit 10.1
EXECUTION COPY
AMENDMENT dated as of August 31, 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, as
amended as of August 11, 2000 and as amended as of
April 16, 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"), 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 August
2001 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:
"August 2001 Amendment" means the Amendment to
this Agreement dated as of August 31, 2001.
"August 2001 Amendment Effective Date" is defined
in Section 3 of the August 2001 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:
"Loan Documents" means the January 1999 Amendment,
the August 2000 Amendment, the April 2001 Amendment, the
August 2001 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 to a joint
venture between the Borrower and Savage Industries Inc. and
(ii) October 31, 2001.
(c) Sections 5.01(p) and (q) are inserted in their
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 October 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
October 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 Ryder Scott 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 October 1, 2001 if any amounts will be
outstanding under the credit agreement on October 1, 2001.
(q) Retainment of a Consultant. The Borrower and
the Guarantor will from time to time upon the request of the
Agent permit consultants retained by the Agent to conduct
evaluations and appraisals of the sulphur and oil and gas
operations and assets of McMoRan Exploration Co. and its
subsidiaries. The retainment of such consultants will be
subject to reasonable and customary terms and conditions, and
the Borrower and the Guarantor will use reasonable best
efforts to cooperate with the consultants. Amendment or
waiver of this provision will require the approval and
consent of 100% of the Lenders."
(d) The first sentence of Section 10.04(a) is amended
and restated in its entirety as follows:
"The Borrower agrees to pay all out-of-pocket
expenses reasonably incurred by the Agents in connection with
the preparation and administration of this Agreement and the
other Loan Documents (including reasonable fees and
disbursements of any consultants retained pursuant to Section
5.01(q)) or with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions
hereby contemplated shall be consummated) or reasonably incurred
by the Agents or any Lender in connection with the enforcement
or protection of their rights in connection with this Agreement
and the other Loan Documents or with the Loans made hereunder
(whether through negotiations, legal proceedings or otherwise),
including, but not limited to, the reasonable fees and
disbursements of Cravath, Swaine & Moore, special counsel for
the Agents, and, in connection with such enforcement or
protection, the reasonable fees and disbursements of other
counsel for any Lender."
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 August 2001 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 August 2001 Amendment
shall become effective as of the first date (the "August 2001
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 & Denegre, 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 August 2001 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 August
2001 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 August 2001 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 August 2001 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 August 2001 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 August 2001 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 August
2001 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 August 2001 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 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 August 2001 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 &
Moore, counsel to the Agents.
SECTION 4. Applicable Law. THIS AUGUST 2001 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 August 2001 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
August 2001 Amendment shall apply and be effective only with
respect to the provisions of the Credit Agreement specifically
referred to herein.
SECTION 6. Counterparts. This August 2001 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 August 2001 Amendment by
facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this August 2001 Amendment.
SECTION 7. Headings. Section headings used herein are
for convenience of reference only, are not part of this August
2001 Amendment and are not to affect the construction of, or to
be taken into consideration in interpreting, this August 2001
Amendment.
IN WITNESS WHEREOF, the Borrower, the Guarantor
and the undersigned Lenders have caused this August 2001
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,
by
Name:
Title:
MELLON BANK, N.A.,
by
Name:
Title: