EXECUTION COPY
AMENDMENT dated as of December 18, 1996 (this
"Amendment"), to the Credit Agreement dated as of July 26,
1996 (the "Credit Agreement"), among MILLENNIUM AMERICA
INC. (formerly XXXXXX AMERICA INC.), a Delaware
corporation referred to as "HAI" under the Credit
Agreement ("Millennium America"); MILLENNIUM CHEMICALS
INC., a Delaware corporation ("Millennium"), as Guarantor;
the lenders from time to time party thereto, initially
consisting of those listed on Schedule 2.01 to the Credit
Agreement (the "Lenders"); THE CHASE MANHATTAN BANK, as
Documentation Agent; and BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as administrative agent (in such
capacity, the "Administrative Agent").
A. The parties hereto have agreed, subject to the terms and
conditions hereof, to amend the Credit Agreement on the terms and subject to the
conditions provided herein.
B. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to such
terms in the Credit Agreement.
SECTION 1. Proposed Merger of Millennium America
and Millennium America Holdings.
(a) The Lenders waive the provisions of Section 6.06 of the
Credit Agreement to the extent (and only to the extent) necessary to
permit the proposed merger of Millennium America with and into
Millennium America Holdings Inc. (formerly HM Anglo-America Ltd.), with
the result that Millennium America Holdings Inc. will be the surviving
corporation, will remain a wholly-owned subsidiary of Millennium, will
change its corporate name to Millennium America Inc., and will succeed
to all of the rights and obligations of HAI or the Borrower under the
Credit Agreement. From and after the consummation of such merger, all
references in the Loan Documents to "HAI" or the "Borrower" will be
deemed to refer to such surviving corporation.
(b) Millennium in its capacity as Guarantor agrees that its
obligations as a guarantor under the Credit Agreement will remain in
full force and effect and will in no way be diminished by the merger
referred
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to in paragraph (a) above or the waiver granted
thereunder.
SECTION 2. Amendment to Section 1.01.
(a) The text following the table in the definition of "Applicable
Percentage" is hereby amended and restated in its entirety as follows:
"For purposes of the foregoing, (i) if either Xxxxx'x or S&P
shall not have in effect a rating for Index Debt (other than by reason of the
circumstances referred to in the last two sentences of this definition), then
such rating agency shall be deemed to have established a rating in Category 6;
(ii) if the ratings established or deemed to have been established by Xxxxx'x
and S&P for the Index Debt shall fall within adjacent Categories, the Applicable
Percentage shall be based on the higher of the two ratings; (iii) if the ratings
established or deemed to have been established by Xxxxx'x and S&P for the Index
Debt differ by two Categories, the Applicable Percentage shall be based on the
middle Category, (iv) if the ratings established or deemed to have been
established by Xxxxx'x and S&P for the Index Debt differ by more than two
Categories, the Applicable Percentage shall be based on the Category next above
that in which the lower rating falls, (v) if the ratings established or deemed
to have been established by Xxxxx'x and S&P for the Index Debt shall be changed
(other than as a result of a change in the rating system of Xxxxx'x or S&P),
such change shall be effective as of the date on which it is first publicly
announced by the applicable rating agency; the Borrower shall notify and provide
proof to the Agent of any such change promptly upon learning of such change, and
(vi) if Xxxxx'x and/or S&P shall have in effect indicative ratings for Index
Debt, such ratings shall be employed as provided herein to determine the
Applicable Percentage notwithstanding that no Index Debt shall be outstanding.
Each change in the Applicable Percentage shall apply to all outstanding Loans,
and shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the
next such change. If, following the Demerger Date, only a single rating agency
shall so far have established a rating for the Index Debt, the Applicable
Percentage shall be based on such rating. If the rating system of Xxxxx'x or S&P
shall change, or if either such rating agency shall cease to be in the business
of rating corporate debt obligations, HAI or Millennium, as the case
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may be, and the Administrative Agent shall negotiate in good faith to amend this
definition to reflect such changed rating system or the non-availability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Percentage shall be determined by reference to the
rating most recently in effect prior to such change or cessation."
(b) Clause (b)(2) of the definition of "Interest
Period" is amended and restated in its entirety as
follows:
"(2) as determined by the Administrative Agent, on the
corresponding day of the week that is within one week or two weeks thereafter,
as the applicable Borrower may elect,"
SECTION 3. Amendment to Section 6.05.
Section 6.05 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"SECTION 6.05. Interest Coverage Ratio. Permit
the Interest Coverage Ratio for any period of four
consecutive fiscal quarters (or, prior to September 30,
1997, any such period ending after September 30, 1996)
to be less than 3.0 to 1."
SECTION 4. Representation and Warranty. Millennium America and
Millennium hereby represent and warrant to the Lenders and the Administrative
Agent that on and as of the date hereof, and after giving effect to this
Amendment:
(a) This Amendment has been duly executed and delivered by
Millennium America and Millennium and constitutes a legal, valid and
binding obligation of Millennium America and Millennium enforceable
against Millennium America and Millennium in accordance with
its terms.
(b) The representations and warranties of Millennium America or
Millennium, as the case may be, contained in the Credit Agreement and
any other Loan Documents are true and correct in all material respects.
(c) No Default or Event of Default has occurred
and is continuing.
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SECTION 5. Effectiveness. This Amendment shall become effective
as of the date first set forth above and upon the Administrative Agent's receipt
of duly executed counterparts of this Amendment which, when taken together, bear
the authorized signatures of each of the parties hereto.
SECTION 6. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders under the Credit Agreement or any other Loan Document, and shall not
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any
other Loan Document, all of which are ratified and affirmed in all respects and
shall continue in full force and effect. Nothing herein shall be deemed to
entitle Millennium America or Millennium to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any
other Loan Document in similar or different circumstances. This Amendment shall
apply and be effective only with respect to the provisions of the Credit
Agreement specifically referred to herein.
SECTION 7. Counterparts. This Amendment may be signed in any
number of counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract. Delivery of an
executed counterpart of a signature page by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this Amendment.
SECTION 8. APPLICABLE LAW. THIS AMENDMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 9. Credit Agreement. Except as expressly amended hereby,
the Credit Agreement shall continue in full force and effect in accordance with
the provisions thereof. As used in the Credit Agreement, the terms "Agreement",
"herein", "hereinafter", "hereunder", "hereto", and words of similar import
shall mean, from and after the date hereof, the Credit Agreement as amended by
this Amendment.
SECTION 10. Expenses. Millennium America (and
Millennium, as Guarantor) shall pay all reasonable out-of-
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pocket expenses incurred by the Administrative Agent in connection with the
preparation, negotiation, execution, delivery and enforcement of this Amendment,
including, but not limited to, the reasonable fees and disbursements of Cravath,
Swaine & Xxxxx.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their duly authorized officers, all as of the date and
year first above written.
MILLENNIUM AMERICA INC.,
by
------------------------------
Name:
Title:
MILLENNIUM CHEMICALS INC.,
by
-------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, individually and
as Administrative Agent,
by
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Documentation
Agent,
by
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Name:
Title:
6
ABN AMRO BANK N.V., NEW YORK BRANCH,
by
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Name:
Title:
by
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Name:
Title:
BANK BRUSSELS XXXXXXX, NEW YORK
BRANCH,
by
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Name:
Title:
by
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Name:
Title:
THE BANK OF NEW YORK,
by
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Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
by
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Name:
Title:
7
BANQUE NATIONALE DE PARIS,
by
-----------------------------
Name:
Title:
by
-----------------------------
Name:
Title:
BANQUE PARIBAS,
by
-----------------------------
Name:
Title:
BARCLAYS BANK PLC,
by
-----------------------------
Name:
Title:
CIBC INC.,
by
-----------------------------
Name:
Title:
CITIBANK, N.A.,
by
------------------------------
Name:
Title:
0
XXXXXXXXXXX XX, XXX XXXX AND/OR GRAND
CAYMAN BRANCHES,
by
------------------------------
Name:
Title:
by
------------------------------
Name:
Title:
CREDIT LYONNAIS UNITED KINGDOM CREDIT LYONNAIS NEW YORK BRANCH,
MAIN OFFICE,
by
by -----------------------------
--------------------------------- Name:
Name: Title:
Title:
CREDIT SUISSE,
by
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Name:
Title:
by
------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
by
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Name:
Title:
9
FLEET BANK,
by
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Name:
Title:
THE FUJI BANK, LIMITED,
NEW YORK BRANCH,
by
------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN TRUST
COMPANY,
by
------------------------------
Name:
Title:
LLOYDS BANK PLC,
by
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Name:
Title:
by
------------------------------
Name:
Title:
MELLON BANK, N.A.,
by
------------------------------
Name:
Title:
00
XXXXXXX XXXX XXX, XXX XXXX BRANCH,
by
-----------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK,
by
-----------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC, NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH,
by
by -----------------------------
---------------------------- Name:
Name: Title:
Title:
NATIONSBANK, N.A.,
by
-----------------------------
Name:
Title:
PNC BANK, N.A.,
by
-----------------------------
Name:
Title:
ROYAL BANK OF CANADA,
by
-----------------------------
Name:
Title:
11
THE SAKURA BANK, LIMITED,
by
-----------------------------
Name:
Title:
THE SANWA BANK, LIMITED, NEW YORK
BRANCH,
by
-----------------------------
Name:
Title:
SOCIETE GENERALE,
by
-----------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH,
by
-----------------------------
Name:
Title:
TORONTO DOMINION (NEW YORK), INC.,
by
-----------------------------
Name:
Title:
