EXHIBIT 10.14(c)
EXECUTION COPY
SECOND AMENDMENT dated as of October 29, 1997 (this
"Amendment"), to the credit Agreement dated as of July 26, 1996,
as amended by the Amendment dated as of December 18, 1996 and as
further amended, supplemented or otherwise modified from time to
time (the "Credit Agreement"), among MILLENNIUM AMERICA INC.
(formerly ▇▇▇▇▇▇ 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 Joint Venture of Millennium and Lyondell
Petrochemical Company.
Reference is made to the agreement by Millennium and Lyondell
Petrochemical Company ("Lyondell") to combine certain of their respective
petrochemical businesses to form a joint venture, which will be named
Equistar Chemicals, LP ("Equistar" or the "Joint Venture"). The Lenders
hereby waive the provisions of Section 6.06 of the Credit Agreement to the
extent (and only to the extent) necessary to permit consummation of the
Joint Venture on terms and in a manner not materially inconsistent with the
Master Transaction Agreement, dated as of July 25, 1997, between Lyondell
and Millennium, as amended by the First Amendment thereto dated as of
October 10, 1997 and as further amended, supplemented or otherwise modified
from time to time (the "Master Transaction Agreement"), and the
description thereof in the Joint Proxy Statement filed by Lyondell and
Millennium with the Securities and Exchange Commission on October 17, 1997
(the "Joint Proxy Statement"), including transfer by Millennium
Petrochemicals Inc., a wholly owned Subsidiary of
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Millennium America, to the Joint Venture of substantially all of the assets
comprising Millennium's polyethylene and related products, performance
polymers and ethyl alcohol businesses (other than accounts receivable
relating to products sold before the closing of the Joint Venture) in
exchange for a 43% interest in the Joint Venture, the assumption and
repayment of Indebtedness of Millennium in the amount of $750,000,000 and
the Joint Venture's assumption of certain other liabilities.
SECTION 2. Notice of Reduction of Total Commitment.
(a) Pursuant to Section 2.10(b) of the Credit Agreement, effective as
of the closing of the Joint Venture and Pursuant to Section 8 of this
Amendment, the Total Commitment under the Credit Agreement will
automatically be reduced by an aggregate principal amount of $750,000,000.
Millennium shall pay to the Administrative Agent for the account of the
Lenders, on the date of such reduction, the Facility Fee on the amount of
the Standby Commitments so reduced that has accrued through the date of
such reduction. For purposes of the reduction described in this clause (a),
each Lender hereby waives the notice requirement specified in Section
2.10(b) of the Credit Agreement and agrees that this Amendment shall serve
as prior irrevocable written notice of such reduction.
(b) Not more than 90 days after the closing of the Joint Venture and
pursuant to Section 8 of this Amendment, Millennium will further
automatically reduce the Total Commitment under Section 2.10(b) of the
Credit Agreement by and additional $250,000,000. Millennium shall pay to
the Administrative Agent for the account of the Lenders, on the date of
such reduction, the Facility Fee on the amount of the Standby Commitments
so reduced that has accrued through the date of such reduction.
For purposes of the reduction described in this clause (b), each
Lender hereby waives the notice requirement specified in Section
2.10(b) of the Credit Agreement and agrees that this Amendment shall
serve as prior irrevocable written notice of such reduction.
SECTION 3. Amendment to Section 1.01. Section 1.01 of the Credit
Agreement is hereby amended by adding the following defined terms in the
appropriate alphabetical order:
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(a) "Equistar" shall mean Equistar Chemicals, LP, a Delaware limited
partnership.
(b) "Joint Proxy Statement" shall mean the Joint Proxy Statement
filed by Lyondell and Millennium with the Securities and Exchange
Commission on October 17, 1997.
(c) "Joint Venture" shall mean the combination of certain of
Lyondell's and Millennium's respective petrochemicals businesses to form a
joint venture, which will be organized as a Delaware limited partnership,
named Equistar Chemicals, LP and headquartered in Houston, Texas, all on
terms and in a manner not materially inconsistent with the Master
Transaction Agreement and the description thereof in the Joint Proxy
Statement.
(d) "Limited Partnership Agreement" shall mean the Limited
Partnership Agreement dated as of October 10, 1997, as amended,
supplemented or otherwise modified from time to time, by and among
Equistar, Lyondell GP, Millennium GP, Lyondell LP and Millennium LP.
(e) "Lyondell" shall mean Lyondell Petrochemical Company, a Delaware
corporation and a partner in the Joint Venture.
(f) "Lyondell GP" shall mean Lyondell Petrochemical G.P., Inc. the
wholly owned subsidiary of Lyondell that serves as one of the general
partners of the Joint Venture.
(g) "Lyondell LP" shall mean Lyondell Petrochemical L.P. Inc., the
wholly owned subsidiary of Lyondell that serves as one of the limited
partners of the Joint Venture.
(h) "Master Transaction Agreement" shall mean the Master Transaction
Agreement dated as of July 25, 1997, as amended by the First Amendment
thereto dated as of October 10, 1997 and as further amended, supplemented
or otherwise modified from time to time, between Lyondell and Millennium
pursuant to which Lyondell and Millennium have agreed to form the Joint
Venture.
(i) "Millennium GP" shall mean Millennium Petrochemicals GP LLC, the
indirect, wholly owned Subsidiary of Millennium America that serves as one
of the general partners of the Joint Venture.
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(j) "Millennium LP" shall mean Millennium Petrochemicals LP LLC, the
indirect, wholly owned Subsidiary of Millennium America that serves as one
of the limited partners of the Joint Venture.
SECTION 4. Amendment to Section 6.01. Section 6.01 of the Credit
Agreement is hereby amended by:
(a) deleting the word "and" at the end of paragraph (o);
(b) deleting the period at the end of paragraph (p) and substituting
in lieu thereof "; and"; and
(c) adding thereto a new clause (q) that reads in its entirety as
follows:
"(q) Liens, if any, that are deemed to exist pursuant to any first
offer obligation of Millennium or right of first refusal of Lyondell as
provided for in the Limited Partnership Agreement;"
SECTION 5. Amendment to Section 6.03. Section 6.03 of the Credit
Agreement is hereby amended by:
(a) deleting the word "and" at the end of paragraph (e) and
substituting in lieu thereof ";"; and
(b) adding thereto a new clause (g) that reads in its entirety as
follows:
"and (g) Indebtedness that is deemed to constitute Indebtedness
of Millennium GP so long as Millennium GP engages in no business and
owns no asset other than (i) those that constitute the business,
partnership interests and assets of the Joint Venture and (ii)
intercompany notes in an amount not to exceed $50,000,000 issued by
Millennium or one of its Affiliates to Millennium GP for the purpose
of capitalizing Millennium GP."
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SECTION 6. Amendment to Section 6.07. Section 6.07 of the Credit
Agreement is hereby amended by adding to the end of Section 6.07 a new sentence
that reads in its entirety:
"Notwithstanding any of the foregoing, (i) nothing in this Section
shall limit the completion of the Joint Venture in accordance with
applicable law and on terms and in a manner not materially inconsistent
with the Master Transaction Agreement and the description thereof in the
Joint Proxy Statement and (ii) for purposes of this Section 6.07 only,
Equistar shall not be considered an Affiliate of Millennium.
SECTION 7. Representation and Warranties. 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 representation 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.
SECTION 8. Conditions to Effectiveness. This Amendment shall become
effective when the following conditions have been satisfied:
(a) The Administrative Agents shall have received duly executed
counterparts of this Amendment which, when taken together, bear the
authorized signatures of each of the parties hereto.
(b) The closing of the Joint Venture, and the transfer of assets by
Millennium and Lyondell, shall have occurred or shall simultaneously occur
in accordance with applicable law and on terms and in a manner not
materially inconsistent with the Master
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Transaction Agreement and the description thereof in the Joint Proxy
Statement:
(c) All conditions precedent to the effectiveness of the $1,250,000,000
Credit Agreement, by and among Equistar, the lenders party thereto and Bank
of America National Trust and Savings Association and The Chase Manhattan
Bank, as Administrative Agents (other than the effectiveness of this
Amendment) shall have been satisfied or waived by the lenders party thereto
and the initial funding under such credit facility shall have occurred or
shall simultaneously occur.
SECTION 9. 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 10. 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 11. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 12. 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
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after the date hereof, the Credit Agreement as amended by this Amendment.
SECTION 13. Expenses. Millennium America (and Millennium, as
Guarantor) shall pay all reasonable out-of-pocket expenses incurred by the
Administrative Agent or any of it Affiliates 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 &
▇▇▇▇▇.
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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 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: VP & TREASURER
MILLENNIUM CHEMICALS INC.,
by ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: VP & TREASURER
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, individually
and as Administrative Agent,
by
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Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Documentation
Agent,
by
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Name:
Title:
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
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Name:
Title:
MILLENNIUM CHEMICALS INC.,
by
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Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, individually
and as Administrative Agent,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: MANAGING DIRECTOR
THE CHASE MANHATTAN BANK,
individually and as Documentation
Agent,
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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ABN AMRO BANK N.V. NEW YORK BRANCH,
by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VICE PRESIDENT
by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: GROUP VICE PRESIDENT
BANK BRUSSELS ▇▇▇▇▇▇▇, 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:
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BANQUE NATIONALE DE PARIS,
by
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Name:
Title:
by
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Name:
Title:
BANQUE PARIBAS,
by
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Name:
Title:
BARCLAYS BANK PLC,
by
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Name:
Title:
CIBC INC.,
by
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Name:
Title:
CITIBANK, N.A.,
by
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Name:
Title:
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ AND/OR
GRAND CAYMAN BRANCHES,
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
by ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: ASSISTANT TREASURER
CREDIT LYONNAIS NEW YORK BRANCH,
by
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Name:
Title:
CREDIT LYONNAIS UNITED KINGDOM,
MAIN OFFICE
by
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Name:
Title:
CREDIT SUISSE,
by
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Name:
Title:
by
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Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
by
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Name:
Title:
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FLEET BANK,
by
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Name:
Title:
THE FUJI BANK, LIMITED,
NEW YORK BRANCH,
by
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Name:
Title:
THE INDUSTRIAL BANK OF OF JAPAN TRUST
COMPANY,
by ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
LLOYDS BANK PLC,
by
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Name:
Title:
by
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Name:
Title:
MELLON BANK, N.A.,
by
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Name:
Title:
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇ BRANCH,
by
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Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK,
by
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Name:
Title:
NATIONAL WESTMINSTER BANK PLC,
by
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Name:
Title:
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH,
by
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Name:
Title:
NATIONBANK, N.A.
by ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
PNC BANK, N.A.,
by
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Name:
Title:
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ROYAL BANK OF CANADA,
by ▇. ▇. ▇▇▇▇▇▇
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Name ▇. ▇. ▇▇▇▇▇▇
Title: Senior Manager
THE SAKURA BANK, LIMITED
by
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Name:
Title:
THE SANWA BANK, LIMITED, NEW YORK
BRANCH,
by
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Name:
Title:
SOCIETE GENERALE,
by
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Name:
Title:
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH,
by
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Name:
Title:
TORONTO DOMINION (NEW YORK), INC.,
by
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Name:
Title: