THIRD AMENDMENT
TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement (this "AGREEMENT") dated as
of June 30, 1998 is entered into by and among Texas Petrochemicals Corporation,
a Texas corporation (the "COMPANY"), the banks and other financial institutions
listed on the signature pages attached hereto (the "LENDERS") and Chase Bank of
Texas, National Association, individually as a Lender and as agent for the other
Lenders (in such latter capacity together with any other Person who becomes the
agent, the "AGENT"), and ABN AMRO North America, Inc., as agent for ABN AMRO
Bank, N.V., and The Bank of Nova Scotia, each individually as a Lender and
together as documentation agents for the other Lenders (in such capacity,
together with any other Person who becomes a documentation agent, the
"DOCUMENTATION AGENTS").
WHEREAS, the Company (together with TPC Finance Corp., which merged
into the Company on the Effective Date), the Lenders, the Agent and the
Documentation Agents entered into that certain Credit Agreement dated as of July
1, 1996, as amended pursuant to a First Amendment to Credit Agreement dated as
of March 28, 1997 and a Waiver and Second Amendment dated as of June 30, 1997
(said Credit Agreement, as so amended, the "CREDIT AGREEMENT"; capitalized terms
used herein, unless otherwise defined, are used as defined in the Credit
Agreement); and
WHEREAS, the Company has requested the Lenders to amend SECTIONS
8.13(A) and 8.13(B) of the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. AMENDMENT TO SECTION 8.13(A). SECTION 8.13(A) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"FIXED CHARGE COVERAGE RATIO. The Company will not permit at any
time the Fixed Charge Coverage Ratio to be (a) for the period from March
28, 1997 to and including June 30, 1997, less than 1.0 to 1.0, (b) for the
period from July 1, 1997 to and including September 30, 1997, less than .8
to 1.0, (c) for the period from October 1, 1997 to and including December
31, 1997, less than .9 to 1.0, (d) for the period from January 1, 1998 to
and including June 30, 1998, less than 1.0 to 1.0, (e) for the period from
July 1, 1998 to and including June 30, 1999, less than 1.0 to 1.0, (f) for
the period from July 1, 1999 to and including December 31, 1999, less than
1.05 to 1.0, and (h) at any time after December 31, 1999, less than 1.15
to 1.0.".
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2. AMENDMENT TO SECTION 8.13(B). Section 8.13(b) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"TOTAL DEBT TO EBITDA RATIO. The Company will not be required to
comply with any requirements for the ratio of Total Debt to EBITDA for the
period from March 28, 1997 to and including September 29, 1997. The
Company will not permit at any time the ratio of Total Debt to EBITDA to
be (a) for the period from September 30, 1997 to and including December
30, 1997, greater than 7.2 to 1.0, (b) for the period from December 31,
1997 to and including March 30, 1998, greater than 6.25 to 1.0, (c) for
the period from March 31, 1998 to and including June 29, 1998, greater
than 5.75 to 1.0, (d) for June 30, 1998 to and including June 30, 1999,
greater than 5.0 to 1.0, (e) for the period from July 1, 1999 to and
including December 31, 1999, greater than 4.75 to 1.0, (f) for the period
from January 1, 2000 to and including June 30, 2001, greater than 3.5 to
1.0, (g) for the period from July 1, 2001 to and including June 30, 2002,
greater than 3.0 to 1.0, (h) for the period from July 1, 2002 to and
including June 30, 2003, greater than 3.0 to 1.0, and (i) for the period
from July 1, 2003 to and including June 30, 2004, greater than 3.0 to
1.0.".
3. AMENDMENT TO ARTICLE VI OF THE CREDIT AGREEMENT. Article VI of
the Credit Agreement is hereby amended by inserting at the end thereof a new
Section 6.22, to read in its entirety as follows:
"SECTION 6.22. YEAR 2000 COMPLIANCE. The Company is developing a
program to address on a timely basis the Year 2000 Problem. In connection
with developing this program, the Company has reviewed its operations and
those of its Subsidiaries with a view to assessing whether its or its
Subsidiaries' respective businesses will, in the receipt, transmission,
processing, manipulation, storage, retrieval, retransmission or other
utilization of data, be vulnerable to a Year 2000 Problem. Based on such
review, the Company has no reason to believe that a Material Adverse
Effect will occur with respect to its or its Subsidiaries' businesses or
operations resulting from a Year 2000 Problem. For purposes of this
Section 6.22, "YEAR 2000 PROBLEM" means any significant risk that computer
hardware or software used in the Company's or its Subsidiaries' businesses
or operations will not, in the case of dates occurring or time periods
ending after December 31, 1999, function at least as effectively as in the
case of dates and time periods occurring prior to December 31, 1999.".
4. RATIFICATION. (a) The Credit Agreement, the Notes and the other
Loan Documents, as amended and affected by this Agreement, shall continue in
full force and effect, and are hereby ratified and confirmed; and
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(b) Nothing in this Agreement releases any right, claim, lien,
security interest or entitlement of any Lender created by or contained in any of
such documents nor is the Company or any other Person released from any
covenant, warranty or obligation created by or contained therein.
5. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants to the Lenders that (a) this Agreement has been duly authorized,
executed and delivered on behalf of the Company, (b) this Agreement constitutes
a valid and legally binding agreement enforceable against the Company in
accordance with its terms except, in each case, as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws relating to or affecting the enforcement of
creditors' rights generally, and by general principles of equity (regardless of
whether such enforceability is a proceeding in equity or at law), (c) after
giving effect to this Agreement, the representations and warranties by the
Company contained in the Credit Agreement and in the other Loan Documents are
true and correct on and as of the date hereof in all material respects as though
made as of the date hereof except as heretofore otherwise disclosed in writing
to the Agent (other than those of such representations and warranties which by
their express terms speak to a date on or before the date hereof) and (d) after
giving effect to this Agreement, no Default exists under the Credit Agreement or
any of the other Loan Documents. The Agent may, at its option, request
appropriate documentary evidence to demonstrate the accuracy of the statements
in subsections (a) and (d) hereof.
6. REFERENCE TO THE CREDIT AGREEMENT AND EFFECT ON THE NOTES AND
OTHER LOAN DOCUMENTS.
(a) Upon the effectiveness of the amendments set forth in SECTIONS 1
AND 2, each reference in the Credit Agreement to "this Agreement" "hereunder,"
"herein" or words of like import shall mean and be a reference to the Credit
Agreement, as amended and affected hereby.
(b) Upon the effectiveness of the amendments set forth in SECTIONS 1
AND 2, each reference in the Notes and the other Loan Documents to "the Credit
Agreement" shall mean and be a reference to the Credit Agreement, as amended and
affected hereby.
7. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be construed as an original, but all of which
together shall constitute one and the same instrument.
8. RATIFICATION BY GUARANTORS. By its execution of this Agreement
each of TPC, Holding Co. and Texas Butylene Chemical Corporation hereby consents
and agrees to the provisions of this Agreement and ratifies and confirms the
Guaranty and other Loan Documents to which it is a party, as amended and
affected hereby.
9. EFFECTIVENESS OF AGREEMENT. This Agreement shall become effective
upon the execution hereof by the Company, TPC, Holding Co. and Texas Butylene
Chemical Corporation, and Lenders constituting the Majority Lenders under the
Credit Agreement.
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10. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE EXTENT THAT THE
LAWS OF THE UNITED STATES OF AMERICA AND ANY RULES, REGULATIONS OR ORDERS ISSUED
OR PROMULGATED THEREUNDER APPLICABLE TO THE AFFAIRS AND TRANSACTIONS OF THE
BANKS OTHERWISE PREEMPT TEXAS LAW, IN WHICH EVENT SUCH FEDERAL LAW SHALL
CONTROL.
11. FINAL AGREEMENT OF THE PARTIES. THIS AGREEMENT, THE CREDIT
AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN AGREEMENT" AS DEFINED
IN SECTION 26.02(A) OF THE TEXAS BUSINESS AND COMMERCE CODE, AND REPRESENT THE
FINAL AGREEMENT AMONG 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
COMPANY:
TEXAS PETROCHEMICALS CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
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SWING LINE LENDER:
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By:_______________________________
X. X. Xxxxx
Vice President
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LENDER:
ABN AMRO BANK N.V., HOUSTON AGENCY
BY: ABN AMRO NORTH AMERICA, INC.,
AS AGENT
By:_______________________________
Name:_____________________________
Title:____________________________
By:_______________________________
Name:_____________________________
Title:____________________________
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LENDER:
THE BANK OF NOVA SCOTIA
By:_______________________________
Name:_____________________________
Title:____________________________
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LENDER:
BANK OF SCOTLAND
By:_______________________________
Name:_____________________________
Title:____________________________
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LENDER:
PARIBAS
By:_______________________________
Name:_____________________________
Title:____________________________
By:_______________________________
Name:_____________________________
Title:____________________________
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LENDER:
HIBERNIA NATIONAL BANK
By:_______________________________
Name:_____________________________
Title:____________________________
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LENDER:
THE CIT GROUP/BUSINESS CREDIT, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
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LENDER:
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By:_______________________________
Name: X. X. Xxxxx
Title: Vice President
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LENDER:
NATIONSBANK, N.A. (FORMERLY KNOWN AS THE
BOATMEN'S NATIONAL BANK OF ST. LOUIS)
By:_______________________________
Name:_____________________________
Director
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XXXXXX:
XXXXXXXX XXXX XX XXXXXX
By:_______________________________
Name:_____________________________
Title:____________________________
By:_______________________________
Name:_____________________________
Title:____________________________
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LENDER:
PILGRIM AMERICA PRIME RATE TRUST
By:_______________________________
Name:_____________________________
Title:____________________________
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LENDER:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
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LENDER:
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By:_______________________________
Name:_____________________________
Title:____________________________
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LENDER:
XXX XXXXXX AMERICAN RATE
INCOME TRUST
By:_______________________________
Name:_____________________________
Title:____________________________
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LENDER:
CAPTIVA FINANCE LTD.
By:_______________________________
Name:_____________________________
Title:____________________________
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AGENT:
Acknowledged as of the date CHASE BANK OF TEXAS,
first above written: NATIONAL ASSOCIATION
By:_______________________________
X. X. Xxxxx
Vice President
DOCUMENTATION AGENTS:
ABN AMRO NORTH AMERICA, INC., AS AGENT
FOR ABN AMRO BANK N.V.
By:_______________________________
Name:_____________________________
Title:____________________________
By:_______________________________
Name:_____________________________
Title:____________________________
THE BANK OF NOVA SCOTIA
By:_______________________________
Name:_____________________________
Title:____________________________
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Consented and agreed to
as of the date first above
written.
TPC HOLDING CORP.
By:_______________________________
Name:_____________________________
Title:____________________________
TEXAS PETROCHEMICAL HOLDINGS, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
TEXAS BUTYLENE CHEMICAL
CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
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