EXHIBIT 10.18
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED NOTE AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED NOTE
AGREEMENT (this "Amendment"), dated as of December 31, 1995,
among FM PROPERTIES OPERATING CO., a Delaware general partnership
("FM Properties"), FREEPORT-MCMORAN INC., a Delaware corporation
("FTX"), FREEPORT-McMoRan COPPER & GOLD INC., a Delaware
corporation ("FCX") (FTX and FCX, the "Guarantors"), HIBERNIA
NATIONAL BANK, a national banking association ("Hibernia") and
CHEMICAL BANK, a New York banking corporation ("Chemical")
(Hibernia and Chemical, the "Banks"), and Hibernia, as Agent for
the Banks (the "Agent").
RECITALS
A. The parties hereto have executed a Second Amended and
Restated Note Agreement, dated as of June 30, 1995 (the "Note
Agreement") relating to a $68,000,000 term loan from the Banks to
FM Properties maturing on June 30, 1996.
B. FM Properties has requested that the maturity date of
the loan be extended from June 30, 1996 to June 30, 1997, and the
Banks are willing to do so on the terms and conditions set forth
below.
C. All capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the
Note Agreement.
ARTICLE I.
AMENDMENTS TO THE NOTE AGREEMENT
1. Section 1.1 (Defined Terms) of the Note Agreement is
hereby amended to substitute the following definition:
"Termination Date" shall mean June 30, 1997 or, if
applicable, any earlier date on which the obligation to
pay the Notes in full shall mature pursuant to this
Agreement.
2. Section 1.1 (Defined Terms) of the Note Agreement is
hereby amended to add the following definitions:
"Key Assets" means the properties and assets of
the Borrower shown on Schedule III hereto.
"Net Proceeds" means the connection with any
permitted asset sale, the proceeds thereof (including
any condemnation award and any payment or settlement of
a casualty insurance claim not used to restore the
related property) in the form of cash or cash
equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note
or installment receivable or purchase price adjustment,
receivable or otherwise, but only as and when
received), net of the following without duplication:
(i) customary and reasonable attorneys' fees,
accountants' fees, investment banking fees, brokerage
commissions, all closing costs and other customary fees
and expenses actually incurred in connection therewith
as transaction costs, and bona fide reserves and
deposits and (ii) any taxes paid or reasonably
estimated to be payable solely in respect of such
permitted asset sale as a result thereof by the owner
of such asset (after taking into account any available
tax credits or deductions).
"Non-Key Assets" means all the properties and
assets of the Borrower except for Key Assets.
3. A new Section 3.6 (Mandatory Prepayments) is hereby
added to the Note Agreement to read as follows:
3.6 Mandatory Prepayments. On July 30, 1996, FM
Properties shall pay to the Banks an amount equal to
the sum of (i) 25% of the Net Proceeds of any Key Asset
sale and (ii) 50% of the Net Proceeds of any Non-Key
Asset sale (in excess of a cumulative annual fiscal
year amount of $7,500,000), in each case arising from
sales of assets occurring during the period from
January 1, 1996 through June 30, 1996. Similarly, on
January 30, 1997, FM Properties shall pay to the Banks
an amount equal to the sum of (i) 25% of the Net
Proceeds of any Key Asset sale and (ii) 50% of the Net
Proceeds of any Non-Key Asset sale (in excess of
$7,500,000), in each case arising from sales of assets
occurring during the period from July 1, 1996 through
December 31, 1996. At the time of each payment, FM
Properties shall deliver documentation evidencing the
sale of assets and the calculation of the Net Proceeds.
4. The Notes are hereby modified to extend the maturity
dates thereof to June 30, 1997.
5. Each and every other document, agreement or instrument
which was executed in connection with or pursuant to the Note
Agreement is hereby modified to reflect the extension of the
maturity of the Notes,this Amendment to the Note Agreement and
the modification to the documents contained herein.
ARTICLE II.
CONDITIONS PRECEDENT
1. Conditions to Effectiveness. The following constitute
conditions precedent to the effectiveness of this Agreement:
(a) Amendment. The Banks shall have received this
Amendment, executed by a Responsible Officer of FM
Properties, FTX and FCX.
(b) FM Properties Partnership and Corporate
Proceedings. The Banks shall have received a
certificate of the Secretary or Assistant
Secretary of FTX, as managing general partner of
FM Properties, certifying (i) that there have been
no amendments to the partnership agreement of FM
Properties since the effective date of the Note
Agreement on June 30, 1995, and (ii) the
incumbency of the officer(s) of FTX, as managing
general partner, executing this Amendment and all
documents related hereto.
(c) Legal Opinion. The Banks shall have received an
opinion of Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, or John G. Amato, counsel to FM
Properties, in form and substance satisfactory to
the Agent and addressed to the Banks.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES AND COVENANTS
1. FM Properties. FM Properties hereby certifies to the
Agent and the Banks that all of the representations and
warranties of FM Properties contained in the Note Agreement
remain true and correct as of December 31, 1995, and that no
Default under the Note Agreement has occurred and is continuing
as of December 31, 1995.
2. FTX. FTX as guarantor under the FTX Guaranty
Agreement, hereby certifies (i) that all of the representations
and warranties contained in the FTX Guaranty Agreement and in the
Note Agreement remain true and correct as of December 31, 1995;
(ii) that FTX, as guarantor under the FTX Guaranty Agreement,
hereby consents to the execution of this Amendment; and (iii)
that the FTX Guaranty Agreement remains in full force and effect
following the date of this Amendment.
3. FCX. FCX, as guarantor under the FCX Guaranty
Agreement, hereby certifies (i) that all of the representations
and warranties contained in the FCX Guaranty Agreement remain
true and correct as of December 31, 1995; (ii) that FCX, as
guarantor under the FCX Guaranty Agreement, hereby consents to
the execution of this Amendment; and (iii) that the FCX Guaranty
Agreement remains in full force and effect following the date of
this Agreement.
ARTICLE IV.
MISCELLANEOUS
1. Savings Clause. Except as specifically amended by this
Amendment, all of the other terms and conditions of the Note
Agreement shall remain in full force and effect.
2. Counterparts. This Amendment may be executed by one or
more of the parties to this Amendment on any number of separate
counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
3. Governing Law. This Amendment shall be governed by,
and construed and interpreted in accordance with, the law of the
State of Louisiana.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
FM PROPERTIES OPERATING CO.
BY: FREEPORT-McMoRan INC.,
Managing General Partner
By: /s/ R. Foster Duncan
_____________________
R. Foster Duncan
Its Treasurer
FREEPORT-McMoRan INC.
By: /s/ R. Foster Duncan
_____________________
R. Foster Duncan
Its Treasurer
FREEPORT-McMoRan COPPER & GOLD INC.
By: /s/ R. Foster Duncan
_____________________
R. Foster Duncan
Its Treasurer
HIBERNIA NATIONAL BANK, as Agent
and Bank
By: /s/ Bruce L. Ross
____________________
Bruce L. Ross
Its Vice President
CHEMICAL BANK, as Bank
By: /s/ Theodore L. Parker
_______________________
Theodore L. Parker
Its Vice President