EXHIBIT 10.17
FOURTH AMENDMENT
TO CREDIT AGREEMENT
This Fourth Amendment to Credit Agreement (this "AGREEMENT") dated as of
June 30, 1999 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, a Waiver and Second Amendment dated as of June 30, 1997 and a Third
Amendment to Credit Agreement dated as of June 30, 1998 (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 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. AMENDMENT TO SECTION 1.01. Clause (c) of the definition of "Fixed
Charge Coverage Ratio" set forth in Section 1.01 of the Credit Agreement is
hereby amended in its entirety
to read as follows:
"(c) the lesser of (i) Scheduled Capital Expenditures for such
period and (ii) actual Capital Expenditures for such period (other than
Capital Expenditures permitted by Section 8.14(d)),".
2. 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 1.0 to 1.0, (g)
for the period from January 1, 2000 to and including June 30, 2000, less
than 1.0 to 1.0, and (h) at any time after June 30, 2000, less than 1.15
to 1.0".
3. 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 the period from 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 5.0 to 1.0, (f) for
the period from January 1, 2000 to and including June 30, 2000, greater
than 5.25 to 1.0, (g) for the period from July 1, 2000 to and including
June 30, 2001, greater than 3.5 to 1.0, (h) for the period from July 1,
2001 to and including June 30, 2002, greater than 3.0 to 1.0, (i) for
period from July 1, 2002 to and including June 30, 2003, greater than 3.0
to 1.0, and (j) for the period from July 1, 2003 to and including June 30,
2004, greater than 3.0 to 1.0.".
4. AMENDMENT TO SECTION 8.14. Section 8.14 of the Credit Agreement
is hereby amended by replacing the phrase "Except as permitted in subclauses (b)
and (c) below, " with the phrase "Except as permitted in subclauses (b), (c) and
(d) below,".
Section 8.14 of the Credit Agreement is hereby further amended by adding a
new subclause (d) reading in its entirety as follows:
(d) The Company and its Subsidiaries may make Capital Expenditures
for one or more projects for expansion of the specialty chemicals business
so long as the aggregate Capital Expenditures pursuant to this Section
8.14(d) do not exceed $10,000,000 in the aggregate.
5. 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 any Lender created by or contained in
any of such documents nor is the
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Company or any other Person released from any covenant, warranty or
obligation created by or contained therein.
6. 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 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 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.
7. 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.
8. 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.
9 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.
10. EFFECTIVENESS OF AGREEMENT. This Agreement shall become
effective upon the execution hereof by the Company, TPC, Holding Co., Texas
Butylene Chemical Corporation and Lenders constituting the Majority Lenders
under the Credit Agreement.
11. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,
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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.
12. 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.
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 (formerly known as TEXAS
COMMERCE BANK NATIONAL
ASSOCIATION)
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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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:
THE FIRST NATIONAL BANK OF CHICAGO
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:
THE FUJI BANK, LIMITED
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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XXXXXX:
XXXXX XXXX XX XXXXX, NATIONAL
ASSOCIATION (formerly known as TEXAS
COMMERCE BANK NATIONAL
ASSOCIATION)
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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XXXXXX:
XXXX XX XXXXXXX, N.A. (FORMERLY
(NATIONSBANK, N.A. (FORMERLY THE
BOATMEN'S NATIONAL BANK OF ST. LOUIS)
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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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 CAPITAL TRUST
PRIME 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 dfirst above written:
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION (formerly known as TEXAS
COMMERCE BANK 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:
TPC HOLDING CORP.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
TEXAS PETROCHEMICAL HOLDINGS, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
TEXAS BUTYLENE CHEMICAL CORPORATION
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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