First Amendment to Credit Agreement Among McMoRan Oil & Gas, LLC, as Borrower,
EXECUTION
COPY
First
Amendment
to
Among
McMoRan
Oil & Gas, LLC,
as
Borrower,
JPMorgan
Chase Bank, N.A.,
as
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
(▇▇▇▇▇) LLC,
as
Syndication Agent,
and
The
Lenders Signatory Hereto
Effective
as of January 19, 2007
First
Amendment to Credit Agreement
This
First
Amendment to Credit Agreement
(this
“First
Amendment”)
executed effective as of the 19th
of
January, 2007 (the “First
Amendment Effective Date”)
is
among McMoRan
Oil & Gas, LLC, a
limited
liability company formed under the laws of the State of Delaware (the
“Borrower”);
each
of the undersigned guarantors (the “Guarantors”,
and
together with the Borrower, the “Obligors”);
each
of the Lenders that is a signatory hereto; JPMorgan
Chase Bank, N.A.,
as
administrative agent for the Lenders (in such capacity, together with its
successors, the “Administrative
Agent”);
and
Toronto-Dominion
(Texas) LLC,
as
syndication agent for the Lenders (in such capacity, together with its
successors in such capacity, the “Syndication
Agent”).
Recitals
A. The
Borrower, the Administrative Agent, the Syndication Agent and the Lenders are
parties to that certain Credit Agreement dated as of April 19, 2006 (the
“Credit
Agreement”),
pursuant to which the Lenders have made certain credit available to and on
behalf of the Borrower.
B. The
Borrower has requested and the Administrative Agent and the Lenders have agreed
to amend certain provisions of the Credit Agreement.
C. NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto agree as follows:
Section
1. Defined
Terms.
Each
capitalized term which is defined in the Credit Agreement, but which is not
defined in this First Amendment, shall have the meaning ascribed such term
in
the Credit Agreement. Unless otherwise indicated, all section references in
this
First Amendment refer to the Credit Agreement.
Section
2. Amendments
to Credit Agreement.
2.1 Section
1.02.
The
following definitions are hereby added or amended and restated in its entirety
as follows:
“Agreed
Pricing”
means:
(i) for
anticipated sales of Hydrocarbons that are fixed in a firm fixed price sales
contract, the fixed price or prices provided for in such sales contract during
the term thereof; and
(ii) for
anticipated sales of Hydrocarbons that are hedged by a fixed price Swap
Agreement, the fixed price or prices provided for in such Swap Agreement during
the term thereof, as modified by any necessary adjustment for quality and
geographical differentials; and
(iii) for
anticipated sales of Hydrocarbons that are hedged by a Swap Agreement which
Swap
Agreement provides for a range of prices between a floor and a ceiling, the
prices provided for in subsection (iv) below, provided that during the term
of
such Swap Agreement such prices shall in no event be less than such floor or
exceed such ceiling, as such floor and ceiling are modified by any necessary
adjustment specified by the Administrative Agent for quality and geographical
differentials; and
(iv) for
anticipated sales of Hydrocarbons, if such sales are not hedged by a Swap
Agreement or sales contract that is described in paragraphs (i), (ii), or (iii)
above, for the date of calculation (or, if such date is not a Business Day,
for
the first Business Day thereafter), and with any necessary adjustment specified
by the Administrative Agent for quality and geographical differentials, the
“strip” price under ▇▇▇▇▇ Hub Natural Gas futures contracts and Light, Sweet
Crude Oil futures contracts for the five year period following such calculation
date, in each case as published by New York Mercantile Exchange (NYMEX) on
its
website currently located at ▇▇▇.▇▇▇▇▇.▇▇▇,
or any
successor thereto (as such price may be corrected or revised from time to time
by the NYMEX in accordance with its rules and regulations), as of the settlement
of the last trading day for the contract month coincident with the effective
date of the then most recent Reserve Report, and thereafter the price in effect
at the end of such five year period.
“Agreement”
means
this Credit Agreement, as amended by the First Amendment to Credit Agreement,
dated as of January 19, 2007, as the same may from time to time be further
amended, modified, supplemented or restated.
“Cash
Equivalents”
means
(a) marketable direct obligations issued by, or unconditionally guaranteed
by,
the United States Government or issued by any agency thereof and backed
by the
full faith and credit of the United States, in each case maturing within one
year from the date of acquisition; (b) certificates of deposit, time deposits,
eurodollar time deposits or overnight bank deposits having maturities of six
months or less from the date of acquisition issued by any Lender or by any
commercial bank or trust company organized under the laws of the United States
or any state thereof having combined capital and surplus of not less than
$250,000,000; (c) commercial paper of an issuer rated at least A-1 by Standard
S&P or P-1 by ▇▇▇▇▇’▇, or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named rating agencies cease
publishing ratings of commercial paper issuers generally, and maturing within
six months from the date of acquisition; (d) repurchase obligations of any
Lender or of any commercial bank satisfying the requirements of clause (b)
of
this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date
of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state,
commonwealth,
territory, political subdivision, taxing authority or foreign government (as
the
case may be) are rated at least A by S&P or A by ▇▇▇▇▇’▇; (f) securities
with maturities of six months or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank satisfying
the requirements of clause (b) of this definition; (g) money market mutual
or
similar funds that invest exclusively in assets satisfying the requirements
of
clauses (a) through (f) of this definition; or (h) money market funds that
(i)
comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company
Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by ▇▇▇▇▇’▇ and
(iii) have portfolio assets of at least $5,000,000,000.
“Equity
Issuance”
means
the issuance, sale or other disposition after the Effective Date by the
Borrower, any of its Subsidiaries or any other Credit Party other than the
Parent of its Equity Interests.
“First
Amendment Effective Date”
means
January 19, 2007.
“Intercreditor
Agreement”
means
in respect of the Second Lien Term Loan Agreement, that certain Intercreditor
Agreement
dated as
of the First Amendment Effective Date among the Administrative Agent, the
Borrower and Guarantors and the agent on behalf of the Second Lien Lenders,
as
the same may from time to time be amended, modified, supplemented or restated
in
accordance with the provisions thereof.
“Material
Indebtedness”
means
Debt (other than the Loans), or obligations in respect of one or more Swap
Agreements, of any one or more of the Borrower and its Subsidiaries or any
Guarantor in an aggregate principal amount exceeding $10,000,000.
For
purposes of determining Material Indebtedness, the “principal amount” of the
obligations of the Borrower or any Subsidiary or Guarantor in respect of any
Swap Agreement at any time shall be the Swap Termination Value.
“Permitted
Refinancing Debt”
means
Debt (for purposes of this definition, “new
Debt”)
incurred in exchange for, or proceeds of which are used to refinance, all of
any
other Debt (the “Refinanced
Debt”);
provided that (a) such new Debt is in an aggregate principal amount not in
excess of the sum of (i) the aggregate principal amount then outstanding of
the Refinanced Debt (or, if the Refinanced Debt is exchanged or acquired for
an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, such lesser amount) and (ii) an amount
necessary to pay any fees and expenses, including premiums, related to such
exchange or refinancing; (b) such new Debt has a stated maturity no earlier
than the stated maturity of the Refinanced Debt and an average life no shorter
than the average life of the Refinanced Debt; (c) such new Debt does not
have a stated interest rate in excess of the stated interest rate of the
Refinanced Debt; (d) such new Debt does not contain any covenants which are
more onerous to the Borrower and its Restricted Subsidiaries than those imposed
by the Refinanced Debt, (e) such new Debt (and any guarantees thereof) is
secured by
the
same
collateral which secured the Refinance Debt and (f) any Liens securing such
new
Debt are subordinated to the Liens securing the Indebtedness (or, if applicable,
the Guaranty Agreement) to at least the same extent as the Liens securing the
Refinanced Debt.
“Probable
Reserves”
means
“Probable Reserves” as defined in the Definitions for Oil and Gas Reserves
promulgated by the Society of Petroleum Engineers (or any generally recognized
successor) as in effect at the time in question.
“Proved
Reserves”
means
“Proved Reserves” determined in accordance with SEC requirements (with the
exception that such reserves shall be calculated using the Agreed Pricing)
in
effect at
the
time in question
which
are categorized as “Proved Developed Reserves” and “Proved Undeveloped
Reserves”. Proved Developed Reserves are further subcategorized as “Proved
Developed Producing Reserves” and “Proved Developed Nonproducing Reserves” in
the Definitions
for Oil and Gas Reserves promulgated by the Society of Petroleum Engineers
(or
any generally recognized successor) as in effect at the time in
question.
“PV”
means
the net present value, discounted at 10% per annum, of the future net revenues
expected to accrue to the Borrower’s and its Subsidiaries’ collective interests
in Proved Reserves and Probable Reserves (calculated separately) expected to
be
produced from Oil and Gas Properties during the remaining expected economic
lives of such reserves. Each calculation of Total Proved Reserve Value shall
be
made in accordance with SEC requirements in effect at
the
time in question and each calculation of Total Probable
Reserve Value shall be made in accordance with
the then
existing standards of the Society of Petroleum Engineers,
provided that in any event (a) appropriate deductions shall be made for
severance and ad valorem taxes, and for operating, gathering, transportation
and
marketing costs required for the production and sale of such reserves and (b)
such calculations shall be made using the Agreed Pricing.
“Reserve
Report”
means
the Initial Reserve Report and each other report setting forth, as of each
January 1st
or July
1st
(or such
other date in the event of an Interim Redetermination), the oil and gas reserves
attributable to the Oil and Gas Properties of the Borrower and the Subsidiaries,
together with a projection of the rate of production and future net income,
taxes, operating expenses and capital expenditures with respect thereto as
of
such date based upon the economic assumptions consistent with the Administrative
Agent’s lending requirements at the time, and, while the Second Lien Notes are
outstanding, the definition of PV. While the Second Lien Notes are outstanding,
each such report must (a) separately report on Proved Developed Producing
Reserves, Proved Developed Nonproducing Reserves, Proved Undeveloped Reserves
and Probable Reserves and separately calculate the PV of each such category
for
the Borrower’s and the Subsidiaries’ interests, (b) take into account the
Borrower’s actual experiences with leasehold operating expenses and other costs
in determining projected leasehold operating expenses and other costs, (c)
identify and take into account
any
“over-produced” or “under-produced” status under gas balancing arrangements, and
(d) contain information and analysis comparable in scope to that contained
in
the Initial Reserve Report.
“Second
Lien Agent”
means
the Person acting as administrative agent, whether designated as such or
functioning in a similar representative capacity, for the Second Lien
Lenders.
“Second
Lien Lenders”
means
each Person now or hereafter a party to the Second Lien Term Loan Agreement
as a
lender.
“Second
Lien Majority Lenders”
means
Second Lien Lenders holding more than 50% of the then outstanding Second Lien
Notes or such larger percentage as may be necessary to generally amend the
Second Lien Term Loan Agreement pursuant to the terms thereof
“Second
Lien Notes”
means
the $100,000,000 Second Lien Term Notes issued pursuant to the Second Lien
Term
Loan Agreement, together with all amendments, modifications, extensions and
rearrangements, including any Permitted Refinancing Debt in respect thereof,
all
to the extent permitted by Section 9.04.
“Second
Lien Term Loan Agreement”
means
that certain Second Lien Term Loan Credit Agreement dated as of the First
Amendment Effective Date among the Borrower, JPMorgan Chase Bank, N.A., as
administrative agent for the Second Lien Lenders, TD Securities (USA) LLC,
as
syndication agent for the Second Lien Lenders, and the Second Lien Lenders
party
thereto, together with all amendments, modifications and supplements, including
any Permitted Refinancing Debt in respect thereof, all to the extent permitted
by Section 9.04.
“Second
Lien Term Loan Documents”
means
the Second Lien Term Loan Agreement, the Second Lien Notes and any “Loan
Documents” (as defined therein), in each case, together with all amendments,
modifications and supplements thereto permitted by Section 9.04.
“Security
Instruments”
means
the Guaranty Agreement, the Intercreditor Agreement, mortgages, deeds of trust
and other agreements, instruments or certificates described or referred to
in
Exhibit F-1, and any and all other agreements, instruments, consents or
certificates now or hereafter executed
and
delivered by the Borrower or any other Person (other than Swap Agreements with
the Lenders or any Affiliate of a Lender or participation or similar agreements
between any Lender and any other lender or creditor with respect to any
Indebtedness pursuant to this Agreement) in connection with, or as security
for
the payment or performance of the Indebtedness, the Notes, this Agreement,
or
reimbursement obligations under the Letters of Credit, as such agreements may
be
amended, modified, supplemented or restated from time to time.
“Total
Probable Reserve Value”
means
at any time the PV attributable to Probable Reserves as most recently determined
and certified to the Lenders in accordance with Section 8.12(h), as the same
may
be adjusted from time to time pursuant to Section 8.13(c) or Section
9.01(e).
“Total
Proved Reserve Value”
means
at any time the
PV
attributable to Proved Reserves as most recently determined and certified to
the
Lenders in accordance with Section 8.12(h), as the same may be adjusted from
time to time pursuant to Section 8.13(c) or Section 9.01(e).
2.2 Section
8.12.
Sections 8.12(d) through Section 8.12(h) are hereby inserted which read as
follows:
(d) Subject
to interim adjustment under Section 8.13(c) and Section 9.01(e), the initial
Total Proved Reserve Value shall be $387,600,000.
(e) No
later
than March 1st and September 1st of each year, the Borrower shall deliver to
the
Administrative Agent two certificates, each in form reasonably satisfactory
to
the Administrative Agent, reflecting the Total Proved Reserve Value and the
Total Probable Reserve Value, respectively, as of the immediately preceding
January 1 and July 1, commencing March 1, 2007.
(f) In
addition, the Borrower may, by notifying the Administrative Agent thereof,
elect
to require the Total Proved Reserve Value to be determined two additional times
on a specified “as of” date between such regular determinations (which shall be
the first day of a calendar month following the date of such notice), in which
event the Borrower shall deliver to the Administrative Agent a certificate,
in
form reasonably satisfactory to the Administrative Agent (which may be in the
form of an updated Reserve Report), no later than three months after such
specified date reflecting the Total Proved Reserve Value as of such specified
date.
(g) The
Borrower shall calculate the Total Proved Reserve Value and the Total Probable
Reserve Value based upon the applicable definitions of this Agreement, and
provide with each such certificate the Reserve Report and other information
used
by the Borrower in calculating the Total Proved Reserve Value and Total Probable
Reserve Value.
(h) Upon
receipt of each such certificate, the Administrative Agent shall promptly review
such certificate and, within five (5) Business Days, confirm to the Borrower
and
the Lenders that (i) the calculations used to determine the Total Proved Reserve
Value were based upon the pricing and other requirements set forth in the
definition of PV and (ii) no mathematical or other errors or omissions have
been
made in such calculation. If facts under (i) or (ii) are ascertained to exist,
the Administrative Agent and the Borrower shall cooperate to promptly calculate
the proper amount. Otherwise, upon confirmation of such
amount
as
the Total Proved Reserve Value, such amount will be the Total Proved Reserve
Value until next adjusted or redetermined in accordance with the terms of this
Agreement pursuant to Section 8.13(c) or Section 9.01(e).
2.3 Section
8.13.
Section
8.13(d) is hereby added which reads as follows:
(d) For
so
long as the Second Lien Notes are outstanding, the reference to “85%” in
Sections 8.13(a), (b) and (c) shall be “90%”.
2.4 Section
8.14.
Section
8.14(d) is hereby deleted and the following is inserted which reads as
follows:
Other
than Liens granted to secure the Second Lien Notes as of the First Amendment
Effective Date, the Borrower agrees that it will not, and will not permit any
Subsidiary to, ▇▇▇▇▇ ▇ ▇▇▇▇ on any Property to secure the Second Lien Notes
without first (i) giving fifteen (15) days’ prior written notice to the
Administrative Agent thereof and (ii) granting to the Administrative Agent
to
secure the Indebtedness a first-priority, perfected Lien on this same Property
pursuant to Security Instruments in form and substance reasonably satisfactory
to the Administrative Agent. In connection therewith, the Borrower shall, or
shall cause its Subsidiaries to, execute and deliver such other additional
closing documents, certificates and legal opinions as shall reasonably be
requested by the Administrative Agent.
2.5 Section
9.01.
The
following sentence is added to the end of Section 9.01(a):
“For
so
long as the Second Lien Notes are outstanding, Total Debt for purposes of this
Section 9.01(a) shall mean Total Debt as of any date of determination less
all
unencumbered cash and Cash Equivalents and Debt permitted pursuant to Section
9.02(f) on the balance sheet of the Borrower and its Subsidiaries as of such
date.”
2.6 Section
9.01.
Section
9.01(c), Section 9.01(d) and Section 9.01(e) are hereby inserted which read
as
follows:
(c) Ratio
of Total Proved Reserve Value to Net Debt.
For so
long as the Second Lien Notes are outstanding, the Borrower will not as of
any
date of determination permit the ratio of (i) Total Proved Reserve Value to
(ii)
(A) Total Debt less (B) the sum as of such date of (1) unencumbered cash and
Cash Equivalents of the Borrower and its Subsidiaries and
(2)
Debt permitted pursuant to Section 9.02(f)
to be
less than (x) as of December 31, 2006 through December 30, 2007, 1.5 to
1.0,
(y) as
of December 31, 2007 through December 30, 2008, 1.75 to 1.0 and (z) thereafter
2.0
to
1.0.
(d) Interest
Coverage Ratio.
For
so
long as the Second Lien Notes are outstanding, the
Borrower will not permit the ratio, determined as of the end of any fiscal
quarter, of (i) EBITDAX for the trailing four fiscal quarter period ending
on
such date, to (ii) Interest Expense for such four fiscal quarter period to
be
less
than (x) prior to December 31, 2007, 2.75 to 1.00, (y) on and after December
31,
2007 and prior to December 31, 2008, 3.25 to 1.00 and (z) thereafter 3.75 to
1.00.
(e) Adjustments
to Total Proved Reserve Value.
If the
Borrower or any Subsidiary shall sell or otherwise dispose of any Oil and Gas
Property included in the calculation of Total Proved Reserve Value, then until
Total Proved Reserve Value is recalculated in accordance with the terms hereof,
Total Proved Reserve Value as then in effect shall be reduced to reflect the
Total Proved Reserve Value of the Oil and Gas Property so sold or disposed
of.
Total Proved Reserve Value may also be adjusted to reflect title defects as
contemplated under Section 8.13(c).
2.7 Section
9.02.
Section
9.02(e) is hereby replaced and Section 9.02(k) is hereby inserted, each of
which
reads as follows:
(e) Debt
in
respect of letters of credit, bank or completion guarantees, surety,
performance, warranty, bid, appeal or other bonds or guarantees and similar
instruments, in each case to the extent (x) required by Governmental
Requirements or any third Person and (y) provided in the ordinary course of
business in connection with the operation of the Oil and Gas
Properties.
(k) Debt
under the Second Lien Notes and any guarantees thereof by a Guarantor, the
principal amount of which Debt does not exceed $100,000,000 in the aggregate,
and any Permitted Refinancing Debt thereof.
2.8 Section
9.03.
Section
9.03(d) is hereby redesignated as Section 9.03(e) and a new Section 9.03(d)
is
hereby inserted which reads as follows:
(d) Liens
on
Property securing the Second Lien Notes and any guaranties thereof as permitted
by Section 9.02(k); provided, however, that (i) such Liens securing such Debt
are subordinate to the Liens securing the Indebtedness, this Agreement and
the
other Loan Documents pursuant to the Intercreditor Agreement and (ii) both
before and after giving effect to the incurrence of any such Lien, the Borrower
is in compliance with Section 8.14(d).
2.9 Section
9.04.
Section
9.04 is hereby amended to add the following paragraph (b):
(b) The
Borrower will not, and will not permit any Subsidiary to: (1) prior to the
date
that is ninety-one (91) days after the Maturity Date, call, make or offer to
make any optional or voluntary Redemption of or otherwise optionally or
voluntarily Redeem (whether in whole or in part) the Second Lien Notes except
with the proceeds of an Equity Issuance or with Permitted Refinancing Debt,
provided that the Borrower may optionally prepay the Second Lien Notes, if
(A)
no Default or Event of Default has occurred and is continuing or would exist
after giving effect to such prepayment or refinancing, and (B) after giving
effect to such prepayment, the Borrower would have at least $15,000,000 of
unused availability under the Commitments, or (2) amend, modify, waive or
otherwise change, consent or agree to any amendment,
modification,
waiver or other change to, any of the terms of any Second Lien Term Loan
Document if (A) the effect thereof would be to shorten the maturity of the
Second Lien Notes or shorten the average life or increase the amount of any
scheduled repayment or mandatory prepayment of principal or increase the
interest rate or increase any call, put or prepayment premiums or shorten any
period for payment of interest thereon, (B) such action requires the
payment of a consent fee (howsoever described), (C) such action adds additional
Property as collateral to secure the Second Lien Notes unless the Borrower
complies with Section 8.14(d) or (D) such action adds any covenants or defaults
without this Agreement being contemporaneously amended to add substantially
similar covenants or defaults, provided that the foregoing shall not prohibit
the execution of supplemental agreements to add guarantors if required by the
terms thereof provided that any such guarantor also guarantees the Indebtedness
pursuant to the Guaranty Agreement and each of the Borrower and such guarantor
otherwise complies with Section 8.14(b).
2.10 Section
10.01.
Section
10.01(o) is hereby added which reads as follows:
(o) the
Intercreditor Agreement, after delivery thereof shall for any reason, except
to
the extent permitted by the terms thereof, cease to be in full force and effect
and valid, binding and enforceable in accordance with its terms against the
Borrower or any party thereto or holder of the Debt subordinated thereby or
shall be repudiated by any of them, or cause the Lien securing the payment
of
the obligations of the Second Lien Notes to be senior or pari passu with the
Liens securing the payment of obligations of this Agreement, or any payment
by
the Borrower or any Guarantor in violation of the terms of the Intercreditor
Agreement.
2.11 Borrowing
Base Adjustment.
As of
the First Amendment Effective Date, the Borrowing Base shall be adjusted to
be
$50,000,000.
Section
3. Conditions
Precedent.
The
effectiveness of this First Amendment is subject to the receipt by the
Administrative Agent of the following documents and satisfaction of the other
conditions provided in this Section 3, each of which shall be reasonably
satisfactory to the Administrative Agent in form and substance:
3.1 Payment
of Outstanding Invoices.
Payment
by the Borrower to the Administrative Agent of all fees and other amounts due
and payable on or prior to the First 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.
3.2 First
Amendment.
The
Administrative Agent shall have received multiple counterparts as requested
of
this First Amendment from each Lender and multiple counterparts as requested
of
the Intercreditor Agreement from the Second Lien Lenders or their
representative.
3.3 No
Default.
No
Default or Event of Default shall have occurred and be continuing as of the
First Amendment Effective Date.
3.4 Security
Instruments.
In
connection with the execution and delivery of the Security Instruments, the
Administrative Agent shall:
(a) be
reasonably satisfied that the Security Instruments create first priority,
perfected Liens (subject only to Excepted Liens identified in clauses (a) to
(d)
and (f) of the definition thereof, but subject to the provisos at the end of
such definition) on at least 90% of the total value of the Proved Reserves
evaluated in the Reserve Report most recently delivered prior to the First
Amendment Effective Date;
(b) be
reasonably satisfied that all Property constituting security for the Second
Lien
Term Loan Agreement is subject to a first priority, perfected Lien in favor
of
the Administrative Agent under the Security Instruments; and
(c) be
reasonably satisfied with title to any additional Oil and Gas Properties
mortgaged in connection with clause (a) of this Section 3.4.
3.5 Closing
of Second Lien Term Loan Agreement.
The
Administrative Agent shall have received a certificate of a Responsible Officer
of the Borrower certifying that (a) funding under the Second Lien Term Loan
Agreement has occurred, or is occurring contemporaneously with the First
Amendment Effective Date, which shall result in gross cash proceeds of
$99,500,000
and (b)
that attached thereto are true and complete copies of the Second Lien Term
Loan
Documents as then in effect.
3.6 Approval
of Second Lien Term Loan Documents.
The
Second Lien Term Loan Documents shall be reasonably acceptable to the Majority
Lenders.
Section
4. Representations
and Warranties; Etc.
Each
Obligor hereby affirms: (a) that as of the date of execution and delivery of
this First Amendment, all of the representations and warranties contained in
each Loan Document to which such Obligor is a party are true and correct in
all
material respects as though made on and as of the First Amendment Effective
Date
(unless made as of a specific earlier date, in which case, was true as of such
date); and (b) that after giving effect to this First Amendment and to the
transactions contemplated hereby, no Defaults exist under the Loan Documents
or
will exist under the Loan Documents.
Section
5. Miscellaneous.
5.1 Confirmation.
The
provisions of the Credit Agreement (as amended by this First Amendment) shall
remain in full force and effect in accordance with its terms following the
effectiveness of this First Amendment.
5.2 Ratification
and Affirmation of Obligors.
Each of
the Obligors hereby expressly (a) acknowledges the terms of this First
Amendment, (b) ratifies and affirms its obligations under the Guarantee
Agreement and the other Security Instruments to which it is a party, (c)
acknowledges, renews and extends its continued liability under the Guarantee
Agreement and the other Security Instruments to which it is a party and agrees
that its guarantee under the Guarantee Agreement and the
other
Security Instruments to which it is a party remains in full force and effect
with respect to the Indebtedness as amended hereby.
5.3 Counterparts.
This
First Amendment may be executed by one or more of the parties hereto in any
number of separate counterparts, and all of such counterparts taken together
shall be deemed to constitute one and the same instrument.
5.4 No
Oral Agreement.
This
written First Amendment, the Credit Agreement and the other Loan Documents
executed in connection herewith and therewith represent the final agreement
between the parties and may not be contradicted by evidence of prior,
contemporaneous, or unwritten oral agreements of the parties. There are no
subsequent oral agreements between the parties.
5.5 Governing
Law.
This
First Amendment (including, but not limited to, the validity and enforceability
hereof) shall be governed by, and construed in accordance with, the laws of
the
State of Texas.
IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
duly
executed effective as of the date first written above.
BORROWER:
MCMORAN
OIL & GAS LLC
By:
___________________________
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Vice President
GUARANTORS:
MCMORAN
EXPLORATION CO.
By:
_____________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President &
Treasurer
K-MC
VENTURE I LLC
By:
MCMORAN
OIL & GAS LLC,
its
sole
member
By:
_________________________
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Vice President
FREEPORT
CANADIAN
EXPLORATION
COMPANY
By:
MCMORAN
OIL & GAS LLC,
its
sole
member
By:
__________________________
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Vice President
MCMORAN
INTERNATIONAL INC.
By:
MCMORAN
OIL & GAS LLC,
its
sole
member
By:
________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
SIGNATURE
PAGE 1
ADMINISTRATIVE
AGENT:
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
By:
___________________________
Name:
Title:
SIGNATURE
PAGE 2
SYNDICATION
AGENT:
TORONTO-DOMINION
(TEXAS) LLC,
as
Syndication Agent
By:
_______________________
Name:
Title:
SIGNATURE
PAGE 3
LENDER:
JPMORGAN
CHASE BANK, N.A.,
as
a
Lender
By:
_________________________
Name:
Title:
SIGNATURE
PAGE 4
LENDER: TORONTO-DOMINION
(TEXAS) LLC,
as
a
Lender
By:
_____________________________
Name:
Title:
SIGNATURE
PAGE 5