Exhibit 10.36
THIRD AMENDMENT AND SUPPLEMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT AND SUPPLEMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT (this "Third Amendment") is made and entered
into as of the 25th day of January, 2002, to be effective as of
the date all conditions precedent set forth in Section 3 hereof
have been satisfied (the "Effective Date"), among McMoRan OIL &
GAS LLC (successor by merger with McMoRan Oil & Gas Co.), a
Delaware limited liability company ("Borrower"); JPMORGAN CHASE
BANK, successor in interest to The Chase Manhattan Bank (formerly
Chase Bank of Texas, National Association), as agent (in such
capacity, the "Agent") for each of the lenders that is a
signatory or which becomes a signatory to the hereinafter defined
Credit Agreement other than Bank of Montreal and Fleet National
Bank, who have withdrawn as lenders under the "Tranche A Credit
Facility" (as defined in the Credit Agreement) pursuant to the
Second Amendment (as defined in the Credit Agreement) effective
November 9, 2001 (the "Lenders"); and the Lenders.
R E C I T A L S:
A. The Borrower, the Lenders, Bank of Montreal, Fleet National
Bank and the Agent entered into a certain Amended and Restated
Credit Agreement dated as of June 15, 2000 (as heretofore amended
from time to time, the "Credit Agreement"), whereby, upon the
terms and conditions therein stated, the Lenders, Bank of
Montreal and Fleet National Bank agreed to make certain "Tranche
A Loans" (as such term is defined in the Credit Agreement) and
extend certain credit to the Borrower.
B. The Borrower has requested that the Lenders extend the
"Termination Date" (as defined in the Credit Agreement) from
January 25, 2002 to February 28, 2002, and the Lenders have
agreed to such extension subject to the terms and conditions
contained herein.
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 Third Amendment, the
terms "Agent", "Borrower", "Credit Agreement", "Effective Date",
"Third 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 Third 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 "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 28, 2002;
provided, however, if the Agent receives a duly
executed and completed copy of that certain Purchase
and Sale Agreement between Halliburton Energy Services,
Inc. ("HES") and the Borrower, pursuant to which the
Borrower has agreed to sell and HES has agreed to
purchase certain Oil and Gas Properties more
particularly described therein, which shall be
effective and shall be substantially in the form
approved by the Board of Directors of HES, then the
Termination Date shall be February 28, 2002, unless the
Tranche A Commitments are sooner terminated pursuant to
Section 2.03(b) or 10.02 hereof."
2.2. Additional Defined Term. Section 1.02 of the Credit
Agreement is hereby further amended and supplemented by adding
the following new definition, which reads in its entirety as
follows:
"'Third Amendment' shall mean that certain
Third Amendment and Supplement to Amended and Restated
Credit Agreement dated as of January 25, 2002, among
the Borrower, the Lenders and the Agent."
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 Third
Amendment shall be conditioned upon the following conditions
precedent:
(a) The Agent shall have received a copy of this Third
Amendment, duly completed and executed by the Borrower; and
(b) The Agent shall have received such other information,
documents or instruments as it or its counsel may reasonably
request.
4. Default. Any default under this Third Amendment shall
constitute a default under the Credit Agreement.
5. 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 Third
Amendment.
6. 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.
7. Counterparts. This Third 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.
8. 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 Third Amendment.
THIS THIRD 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 Third 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:
JPMORGAN CHASE BANK, successorin interest to
The Chase Manhattan Bank, Individually and
as Agent
By:
Name:
Title:
HIBERNIA NATIONAL BANK
By:
Name:
Title: