Second Amendment to Credit Agreement Dated as of September 10, 2008 among McMoran Exploration Co., As Parent, McMoran Oil & Gas LLC, as Borrower, The Guarantors, JPMorgan Chase Bank, N.A. as Administrative Agent, GE Business Financial Services Inc.,...
Exhibit 10.15
Execution Version
____________________________________________________________________________________________
Second
Amendment
to
Dated
as of September 10, 2008
among
McMoran
Exploration Co.,
As
Parent,
McMoran
Oil & Gas LLC,
as Borrower,
The
Guarantors,
JPMorgan
Chase Bank, N.A.
as Administrative
Agent,
GE
Business Financial Services Inc.,
fka
▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services Inc.
as Syndication
Agent,
Toronto
Dominion (Texas) LLC, BNP Paribas,
and
ING Capital LLC,
as Documentation
Agents,
and
The
Lenders Party Hereto
____________________________________________________________________________________________
Second Amendment To Amended
and Restated Credit Agreement
THIS Second
Amendment to Amended and Restated Credit Agreement (this “Second Amendment”)
dated as of September 10, 2008, is among McMoran
Exploration Co., a Delaware corporation (the “Parent”), McMoran
Oil & Gas LLC,
a Delaware limited liability company (the “Borrower”), the
undersigned guarantors (the “Guarantors”, and
together with the Parent and the Borrower, the “Obligors”), each of
the lenders party to the Credit Agreement referred to below (collectively, the
“Lenders”),
JPMorgan
Chase Bank, N.A., as administrative agent for the Lenders (in such
capacity, together with its successors in such capacity, the “Administrative
Agent”), GE Business Financial Services Inc., fka ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business
Financial Services Inc., as syndication agent for the Lenders (in such capacity,
together with its successors in such capacity, the “Syndication Agent”),
and The Toronto Dominion (Texas) LLC, BNP Paribas, and ING Capital LLC, as
co-documentation agents for the Lenders (in such capacity, together with its
successors in such capacity, each a “Documentation
Agent”).
R E C I T A L
S
A. The
Borrower, the Agents and the Lenders are parties to that certain Amended and
Restated Credit Agreement dated as of August 6, 2007 (as amended by that certain
First Amendment to Amended and Restated Credit Agreement, and as further amended
from time to time, 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, to induce the Administrative Agent and the Lenders to enter into this
Second Amendment and 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 used herein but not otherwise
defined herein has the meaning given such term in the Credit Agreement, as
amended by this Second Amendment. Unless otherwise indicated, all
section references in this Second Amendment refer to sections of the Credit
Agreement.
Section
2. Amendments to Credit
Agreement.
2.1 Amendments to Section
1.02.
(a) The
definition of “Agreement” is hereby
amended in its entirety to read as follows:
Page
1
“Agreement” means this
Credit Agreement, as amended by the First Amendment, and as further amended by
the Second Amendment, including the Schedules and Exhibits hereto, as the same
may be amended or supplemented from time to time.
(b) The
following definitions are hereby added where alphabetically appropriate to read
as follows:
“Existing Convertible
Preferred” means the $257,910,000 6.75% Mandatory Convertible Preferred
Stock of the Parent mandatorily convertible on November 15, 2010 issued pursuant
to that Certificate of Designation dated November 7, 2007.
“Second Amendment”
means that certain Second Amendment to Credit Agreement, dated as of September
10, 2008, among the Parent, the Borrower, the Guarantors, the Administrative
Agent and the Lenders party thereto.
“Second Amendment Effective
Date” means September 10, 2008.
2.2 Section
2.07. Section 2.07(a) and the last paragraph of Section
2.07(d) are hereby amended to add the phrase “Section 8.18” after the phrase
“Section 8.13(d) [MMS approvals]” and “Section 8.13(d)”,
respectively.
2.3 Section
8.18. Section 8.18 is hereby amended to read as
follows:
“Section
8.18. Swap
Agreements. The Parent shall maintain the hedge position
established by the Swap Agreements indentified in the most recent certificate
delivered under Section 8.01(d) during the period specified therein and shall
neither assign, terminate or unwind any such Swap Agreements nor sell any Swap
Agreements if the effect of such action (when taken together with any other Swap
Agreements executed contemporaneously with the taking of such action) would have
the effect of canceling its positions under such Swap Agreements; provided that
the Parent may terminate or otherwise cancel or unwind any Swap Agreement if (a)
the Parent shall have given prior written notice to the Administrative Agent of
such action, (b) the economic effect of such Swap Agreement was to increase the
Borrowing Base (or Conforming Borrowing Base) then in effect, the Required
Lenders shall have the right to adjust the Borrowing Base (or Conforming
Borrowing Base) to reflect such termination and (c) the Borrower shall have
(after giving effect to any termination payments associated with termination)
unused availability under this Agreement of not less than 15% of the then
current Borrowing Base. Notwithstanding the foregoing, the Borrower
shall have the right to terminate the Swap Agreements listed on Schedule
8.18.”
Page
2
2.4 Section
9.04(a). Section 9.04(a) is hereby amended by deleting the
word “and” prior to clause (iv) and inserting a “comma” in lieu
thereof and by inserting the following clause at the end of such
Section:
“and (v)
the Parent may make aggregate cash payments on or prior to November 15, 2010 in
an amount not to exceed $39,200,000 (less the amount of any dividends paid by
the Parent on the Existing Convertible Preferred after the Second Amendment
Effective Date) to the holders of the Existing Convertible Preferred to induce
such holders to convert the Existing Convertible Preferred into common Equity
Interests of the Parent, provided that before and after giving effect to each
such payment, no Default or Event of Default existed or would result and the
Borrower will have (after giving effect to such payment) unused availability
under this Agreement of not less than 15% of the then current Borrowing
Base.”
Section
3. Conditions
Precedent. This Second Amendment shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 12.02 of the Credit Agreement):
3.1 The
Administrative Agent shall have received from all of the Lenders, the Parent,
the Borrower and the Guarantors, counterparts (in such number as may be
requested by the Administrative Agent) of this Second Amendment signed on behalf
of such Person.
3.2 The
Administrative Agent and the Lenders shall have received all fees and other
amounts due and payable on or prior to the date hereof, including a work fee
payable to each Lender in an amount of $5,000.
3.3 No
Default shall have occurred and be continuing as of the date hereof, after
giving effect to the terms of this Second Amendment.
The
Administrative Agent is hereby authorized and directed to declare this Second
Amendment to be effective when it has received documents confirming or
certifying, to the satisfaction of the Administrative Agent, compliance with the
conditions set forth in this Section 3 or the waiver of such conditions as
permitted hereby. Such declaration shall be final, conclusive and binding upon
all parties to the Credit Agreement for all purposes. Notwithstanding
the foregoing, this Second Amendment shall not become effective unless each of
the foregoing conditions is satisfied (or waived pursuant to Section 12.02 of
the Credit Agreement) at or prior to 1:00 p.m., New York New York time, on
September 15, 2008.
Section
4. Miscellaneous.
4.1 Confirmation. The
provisions of the Credit Agreement, as amended by this Second Amendment, shall
remain in full force and effect following the effectiveness of this Second
Amendment.
Page
3
4.2 Ratification and
Affirmation; Representations and Warranties. Each Obligor
hereby (a)
acknowledges the terms of this Second Amendment; (b) ratifies and
affirms its obligations under, and acknowledges, renews and extends its
continued liability under, each Loan Document to which it is a party and agrees
that each Loan Document to which it is a party remains in full force and effect,
except as expressly amended hereby, notwithstanding the amendments contained
herein and (c)
represents and warrants to the Lenders that as of the date hereof, after giving
effect to the terms of this Second Amendment: (i) all of the
representations and warranties contained in each Loan Document to which it is a
party are true and correct, except to the extent any such representations and
warranties are expressly limited to an earlier date, in which case, such
representations and warranties shall continue to be true and correct as of such
specified earlier date, (ii) no Default or Event of Default has occurred and is
continuing and (iii) no event or events have occurred which individually or in
the aggregate could reasonably be expected to have a Material Adverse
Effect.
4.3 Counterparts. This
Second 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. Delivery
of this Second Amendment by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
4.4 No Oral
Agreement. This Second 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.
4.5 GOVERNING
LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.6 Payment of
Expenses. In accordance with Section 12.03 of the Credit
Agreement, the Borrower agrees to pay or reimburse the Administrative Agent for
all of its reasonable out-of-pocket costs and reasonable expenses incurred in
connection with this Second Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
4.7 Severability. Any
provision of this Second Amendment which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
4.8 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
Page
4
IN
WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be duly
executed as of the date first written above.
BORROWER: MCMORAN OIL
& GAS LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President
PARENT: MCMORAN EXPLORATION
CO.
By: /s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Senior Vice
President
& Treasurer
GUARANTORS: K-MC
VENTURE I LLC
By: MCMORAN
OIL & GAS LLC,
its sole
member
By: /s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Vice President
FREEPORT
CANADIAN
EXPLORATION
COMPANY
By: MCMORAN
OIL & GAS LLC,
its sole
member
By: /s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Vice President
MCMORAN
INTERNATIONAL INC.
By: MCMORAN
OIL & GAS LLC,
its sole
member
By: /s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Vice President
Signature Page
Second
Amendment
JPMORGAN CHASE BANK,
N.A.,
as Administrative Agent and as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
GE BUSINESS FINANCIAL
SERVICES
INC., fka ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial
Services
Inc., as Syndication Agent and
as
a
Lender
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Authorized Signatory
BNP
PARIBAS, as a Documentation Agent and as a Lender
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Director
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Director
TORONTO
DOMNION (TEXAS) LLC, as
a
Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Authorized Signatory
Signature Page 2
Second
Amendment
ING
CAPITAL LLC, as a Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Managing Director
|
|
U.S. BANK NATIONAL
ASSOCIATION
|
By: /s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
|
|
Title: Senior Vice
President
|
CAPITAL ONE, N.A., as a
Lender
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title
Senior Vice President
Signature Page 3
Second
Amendment
:
Schedule
8.18
Swap
Agreements In Place as of September 9, 2008
|
Natural
Gas Hedging Summary (MMbtu)
|
||
|
Hedged
Volume (MMbtu)
|
Avg.
Swap
price
|
|
|
Nov
'08 - Dec '08
|
2,725,000
|
$ 9.158
|
|
Total
2008
|
2,725,000
|
|
|
Jan
'09 - June '09
|
6,171,000
|
$ 8.970
|
|
Nov
'09 - Dec '09
|
1,074,000
|
$ 8.968
|
|
Total
2009
|
7,245,000
|
|
|
Jan
'10 - June '10
|
2,096,000
|
$ 8.630
|
|
Nov
'10 - Dec '10
|
542,013
|
$ 8.610
|
|
Total
2010
|
2,638,013
|
|
|
Total
2008-2010
|
12,608,013
|
|
|
Crude
Oil Hedging Summary (bbls)
|
||
|
Hedged
Volume (bbls)
|
Avg.
Swap
price
|
|
|
Nov
'08 - Dec '08
|
120,000
|
$72.300
|
|
Total
2008
|
120,000
|
|
|
Jan
'09 - June '09
|
277,000
|
$71.930
|
|
Nov
'09 - Dec '09
|
45,000
|
$71.160
|
|
Total
2009
|
322,000
|
|
|
Jan
'10 - June '10
|
100,000
|
$70.940
|
|
Nov
'10 - Dec '10
|
18,000
|
$70.640
|
|
Total
2010
|
118,000
|
|
|
Total
▇▇▇▇-▇▇▇▇
|
▇▇▇,000
|
|
Schedule
8.18