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Execution Copy
FIRST AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Amended and Restated Credit Agreement (this
"Agreement") dated as of January 1, 2001 is entered into by and among Texas
Petrochemicals LP, a Texas limited partnership (the "Company"), TPC Holding
Corp., a Delaware corporation (the "Parent"), those Lenders that execute a
counterpart of this Agreement and The Chase Manhattan Bank (the successor by
merger to Chase Bank of Texas, National Association), individually as a Lender
and the Swing Line Lender and as agent for the other Lenders (in such latter
capacity together with any other Person who becomes the agent, the "Agent"), 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 co-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, the Parent, the Lenders, the Agent, the Swing
Line Lender and the Documentation Agents are parties to that certain Amended and
Restated Credit Agreement dated as of June 30, 2000 (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 certain
provisions 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. Amendments to Section 1.01. (a) The definition of "Agent"
contained in Section 1.01 of the Credit Agreement is hereby amended in its
entirety to read as follows:
" 'Agent' means The Chase Manhattan Bank (the
successor by merger to Chase Bank of Texas, National
Association) together with any other Person who becomes the
agent pursuant to Section 10.06.".
(b) Clause (c) of the definition of "Fixed Charge Coverage
Ratio" contained in Section 1.01 of the Credit Agreement is hereby
amended in its entirety to read as follows:
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"(c) the lesser of (i) Scheduled Capital Expenditures for such
period (other than Capital Expenditures permitted by Section 8.14(d)
and Capital Expenditures permitted by Section 8.14(e)) and (ii) actual
Capital Expenditures for such period,".
2. Amendment to Section 7.01. Clause (i) of Section 7.01(l) of
the Credit Agreement is hereby deleted effective as of June 30, 2000, and
clauses (ii), (iii) and (iv) thereof are renumbered, respectively, as clauses
(i), (ii) and (iii).
3. Amendment to Section 8.05. Clause (d) of Section 8.05 of
the Credit Agreement is hereby amended in it entirety to read as follows:
"(d) loans by the Company to the ESOP to purchase Capital
Stock of Holding Co. in the aggregate at any time outstanding not in
excess of $10,000,000.00;".
4. Amendment to Section 8.13(a). Section 8.13(a) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"(a) 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 1.0 to 1.0, (g) for the
period from January 1, 2000 to and including June 30, 2000, less than
1.0 to 1.0, (h) for the period from July 1, 2000 to and including June
30, 2001, less than 1.05 to 1.0, (i) for the period from July 1, 2001
to and including June 30, 2002, less than 1.05 to 1.0, and (j) at any
time after June 30, 2002, less than 1.15 to 1.0.".
5. Amendment to Section 8.13(b). Clauses (g) and (h) of
Section 8.13(b) of the Credit Agreement are hereby amended in their entirety to
read as follows:
"(g) for the period from July 1, 2000 to and including June
30, 2001, greater than 4.5 to 1.0, (h) for the period from July 1, 2001
to and including June 30, 2002, greater than 4.5 to 1.0,".
6. Amendment to Section 8.13(d). Section 8.13(d) of the Credit
Agreement is hereby amended in its entirety to read as follows:
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"(d) Current Ratio. The Company will not permit at any time
the ratio of Current Assets to Current Liabilities to be less than 1.15
to 1.0.".
7. Amendments to Section 8.14. Section 8.14 of the Credit
Agreement is hereby amended by replacing the phrase "Except as permitted in
subclauses (b), (c) and (d) below, "with the phrase "Except as permitted in
subclauses (b), (c), (d) and (e) below,".
Section 8.14 of the Credit Agreement is hereby further amended by
adding a new subclause (e) reading in its entirety as follows:
"(e) The Company and its Subsidiaries may make Capital
Expenditures for one or more projects for expansion of butadiene
capacity so long as the aggregate Capital Expenditures pursuant to this
Section 8.14(e) do not at any time exceed $16,000,000 in the
aggregate.".
8. 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
(b) Nothing in this Agreement releases any right, claim, lien,
security interest or entitlement of the Agent or 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.
9. Representations and Warranties. The Company hereby
represents and warrants to the Lenders that (a) the Credit Agreement as amended
by 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 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 considered in 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 (unless any
such representation or warranty expressly relates to an earlier date or is no
longer true solely as a result of transactions not prohibited by the Credit
Agreement, as amended by this Agreement, and the other Loan Documents) and (d)
after giving effect to this Agreement, no Default exists under the Credit
Agreement or any of the other Loan Documents.
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10. 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 through 7, 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 through 7, 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.
11. 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.
12. Ratification by Other Parties. By its execution of this
Agreement each of the Parent, the Limited Partner, Holding Co. and Texas
Butylene Chemical Corporation hereby consents and agrees to the provisions of
this Agreement, represents and warrants that the representations by it and its
Subsidiaries contained in Article VI of the Credit Agreement, as amended hereby,
are true and correct in all material respects as though made as of the date
hereof (unless any such representation and warranty expressly relates to an
earlier date or is no longer true solely as a result of transactions not
prohibited by the Credit Agreement, as amended hereby, and the other Loan
Documents), and ratifies and confirms the Loan Documents to which it is a party,
as amended and affected hereby.
13. Effectiveness of Agreement. This Agreement shall become
effective upon the execution hereof by the Company, the Parent, the Limited
Partner, Holding Co., Texas Butylene Chemical Corporation and Lenders
constituting the Majority Lenders under the Credit Agreement (whether or not all
Lenders listed on the signature pages hereof execute this Agreement).
14. 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 LENDER OTHERWISE PREEMPT TEXAS LAW, IN WHICH EVENT SUCH
FEDERAL LAW SHALL CONTROL.
15. Final Agreement of the Parties. THE CREDIT AGREEMENT, AS
AMENDED BY THIS AGREEMENT, AND THE OTHER LOAN DOCUMENTS
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(INCLUDING, WITHOUT LIMITATION, ALL EXHIBITS AND SCHEDULES THERETO) 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.
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 LP
BY: TPC HOLDING CORP.,
as General Partner
By: ________________________
Name: ________________________
Title: ________________________
Parent:
TPC HOLDING CORP.
By: _____________________________
Name: _____________________________
Title: _____________________________
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Swing Line Lender:
THE CHASE MANHATTAN BANK(as successor
to CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION)
By: _____________________________
Name: _____________________________
Title: _____________________________
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Lenders:
THE CHASE MANHATTAN BANK
By: _____________________________
Name: _____________________________
Title: _____________________________
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ABN AMRO BANK N.V.
BY: ABN AMRO NORTH AMERICA, INC.,
AS AGENT
By: ____________________
Name: ____________________
Title: ____________________
By: ____________________
Name: ____________________
Title: ____________________
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THE BANK OF NOVA SCOTIA
By: _____________________________
Name: _____________________________
Title: _____________________________
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BANK OF SCOTLAND
By: _____________________________
Name: _____________________________
Title: _____________________________
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BNP PARIBAS
By: _____________________________
Name: _____________________________
Title: _____________________________
By: _____________________________
Name: _____________________________
Title: _____________________________
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CAPTIVA FINANCE LTD.
By: _____________________________
Name: _____________________________
Title: _____________________________
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HIBERNIA NATIONAL BANK
By: _____________________________
Name: _____________________________
Title: _____________________________
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THE CIT GROUP/BUSINESS CREDIT, INC.
By: _____________________________
Name: _____________________________
Title: _____________________________
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LONGHORN CDO (CAYMAN) LTD
BY: MERRILL LYNCH INVESTMENT
MANAGERS, L.P.,
AS INVESTMENT ADVISOR
By: ____________________
Name: ____________________
Title: ____________________
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MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By: _____________________________
Name: _____________________________
Title: _____________________________
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BANK OF AMERICA, N.A.
By: _____________________________
Name: _____________________________
Title: _____________________________
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NATIONAL BANK OF CANADA
By: _____________________________
Name: _____________________________
Title: _____________________________
By: _____________________________
Name: _____________________________
Title: _____________________________
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VAN KAMPEN PRIME RATE INCOME TRUST
BY: VAN KAMPEN INVESTMENT ADVISORY
CORP.
By: ________________________
Name: ________________________
Title: ________________________
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WELLS FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By: _____________________________
Name: _____________________________
Title: _____________________________
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Agent:
THE CHASE MANHATTAN BANK(as successor
to CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION)
By: _____________________________
Name: _____________________________
Title: _____________________________
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 to and agreed to
as of the date first above
written:
TEXAS PETROCHEMICAL HOLDINGS, INC.
By: __________________________
Name: __________________________
Title: __________________________
TEXAS BUTYLENE CHEMICAL
CORPORATION
By: __________________________
Name: __________________________
Title: __________________________
PETROCHEMICAL PARTNERSHIP
HOLDINGS, INC.
By: __________________________
Name: __________________________
Title: __________________________
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