AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT No. 1 dated as of April 1, 1999 to the Credit Agreement dated as
of July 23, 1998 (the "Credit Agreement") among LYONDELL CHEMICAL COMPANY
(formerly named LYONDELL PETROCHEMICAL COMPANY), the LENDERS party thereto,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent, DLJ CAPITAL
FUNDING, INC. as Syndication Agent, and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, CITIBANK, N.A., THE CHASE MANHATTAN BANK and NATIONSBANK,
N.A., as Documentation Agents.
The parties hereto agree as follows:
Section 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
Section 2. Amendment of Section 1.01. (a) The following new definitions
are added in alphabetical order to Section 1.01 of the Credit Agreement:
"Acquiring Person" has the meaning set forth in Section 5.22.
"Amendment 1 Effective Date" means the date on which Amendment No. 1 dated
as of April 1, 1999 to this Agreement becomes effective in accordance with its
terms.
"ARCO Notes" means the 9.9% Debentures Due November 1, 2000 issued by ARCO
Chemical in the aggregate principal amount of $200,000,000.
"ARCO Notes Refinancing" means any issuance for cash proceeds by the
Borrower of any debt security, any equity security or any Equity Equivalent, but
only to the extent that (i) such issuance is consummated on or after the Partial
Term Loans Payout Date, (ii) the proceeds thereof are applied by the Borrower to
repay the ARCO Notes (including interest and premium, if any, thereon), or are
deposited in an escrow account from which such cash proceeds may be withdrawn
only to make such repayment (or to redeem such refinancing security) and (iii)
any such debt security requires no scheduled payment of principal prior to July
1, 2006.
"Asset Sale Lien" has the meaning set forth in Section 5.22.
"Junior Securities" means (i) securities the issuance of which gives rise
to an Equity Issuance and (ii) New Senior Subordinated Notes.
"LCR Partnership Agreement" means the Limited Partnership Agreement of LCR
dated December 31, 1998.
"Lyondell TDI" means Lyondell Chimie France TDI, a French limited
partnership and a wholly-owned Subsidiary of the Borrower.
"Major Asset Sale" has the meaning set forth in Section 5.22.
"New Collateral Documents" means the instruments set forth in Schedule
3.01.
"New Senior Notes" means unsecured notes of the Borrower which (i) mature
no earlier than the seventh anniversary of their date of issuance, (ii) are not
Guaranteed by any Person other than a Subsidiary Guarantor (the terms of which
Guarantee shall provide that it terminates automatically upon any termination of
the Subsidiary Guarantee of such Subsidiary Guarantor) and (iii) contain
otherwise substantially the terms and conditions contemplated by the form of
senior note indenture delivered to the Administrative Agent prior to the
Amendment 1 Effective Date.
"New Senior Subordinated Notes" means unsecured notes of the Borrower which
(i) mature no earlier than the seventh anniversary of their date of issuance,
(ii) are not Guaranteed by any Person other than a Subsidiary Guarantor (the
terms of which Guarantee shall provide that it terminates automatically upon any
termination of the Subsidiary Guarantee of such Subsidiary Guarantor), (iii) are
subordinated (and the Guarantees of which are subordinated) to the obligations
of the Borrower (and any applicable Subsidiary Guarantor) to the Lenders
pursuant to subordination provisions no less favorable to the Lenders than those
set forth in the form of senior subordinated note indenture delivered to the
Administrative Agent prior to the Amendment 1 Effective Date and (iv) contain
other terms and conditions no less favorable to the Borrower and the Lenders
than those contemplated by such form of indenture.
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"Partial Term Loans Payout Date" means the first date on which all Term
Loans-C and Term Loans-D (including all interest and fees accrued thereon) have
been repaid in full.
"Rhodia" means Rhodia S.A., a French company and the successor in interest
to ▇▇▇▇▇-▇▇▇▇▇▇▇ Chemie S.A. under the TDI Agreements.
"Rhodia TDI Plant" means the manufacturing facilities for the production of
toluene diisocyanate, currently owned by Rhodia and located at Pont-de-Claix,
France.
"Special Purpose Subsidiary" means a Subsidiary formed solely for the
purpose of, and whose activities consist solely of, engaging in a Securitization
Transaction or the issuance of an Equity Equivalent.
"Subject Assets" has the meaning set forth in Section 5.22.
"Subject Assets Transferee" has the meaning set forth in Section 5.22.
"TDI Agreements" means (i) the Share Purchase Agreement dated as of January
23, 1995 between ARCO Chemical Europe Inc. and ▇▇▇▇▇-▇▇▇▇▇▇▇ Chemie S.A., as
such agreement may be amended, supplemented or otherwise modified from time to
time, (ii) the Processing Agreement dated as of January 23, 1995 between ARCO
Chemical Chemie TDI and ▇▇▇▇▇-▇▇▇▇▇▇▇ Chemie S.A., as such agreement may be
amended, supplemented or otherwise modified from time to time, and (iii) the TDI
License.
"TDI Assets" means (i) all of the rights of ARCO Chemical Europe Inc., ARCO
Chemical Chemie TDI, ARCO Chemical Technology LP and their respective successors
under the TDI Agreements, and (ii) all of Lyondell TDI's customer lists relating
to the Rhodia TDI Plant.
"TDI License" means the TDI Technology Agreement dated as of January 23,
1995 between ARCO Chemical Technology LP and ▇▇▇▇▇-▇▇▇▇▇▇▇ Chemie S.A., as such
agreement may be amended, supplemented or otherwise modified from time to time.
"Voting Control" means with respect to any security the right to exercise,
or to direct the exercise of, the voting rights of a holder of such security;
provided that a Person shall not be deemed to have Voting Control of shares of
common stock of the Borrower if such Person is or such shares are subject to a
valid contract arrangement whereby such shares are voted as directed by the
board of
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directors of the Borrower and/or in the same proportions as all other shares of
common stock of the Borrower are voted.
(b) The definition of "Adjusted EBITDA" set forth in Section 1.01 of the
Credit Agreement is amended by (i) adding after the phrase "in connection with
the Acquisition" in clause (i) thereof the phrase "and subsequent Asset Sales"
and (ii) adding after the phrase "Borrower Joint Ventures" in clause (ii)
thereof the phrase "and non-wholly owned Subject Assets Transferees."
(c) The definition of "ARCO Chemical" set forth in Section 1.01 of the
Credit Agreement is amended to read in its entirety as follows:
"ARCO Chemical" means Lyondell Chemical Worldwide, Inc., a
Delaware corporation and the surviving corporation in the Merger
(formerly named ARCO Chemical Company).
(d) The definition of "Asset Sale" set forth in Section 1.01 of the Credit
Agreement is amended by adding after the phrase "whether or not involving a
capital lease," the phrase "including any Major Asset Sale."
(e) The definition of "Borrower" set forth in Section 1.01 of the Credit
Agreement is amended to read in its entirety as follows:
"Borrower" means Lyondell Chemical Company (formerly named
Lyondell Petrochemical Company), a Delaware corporation, and its
successors.
(f) The definition of "Borrower's 1997 Form 10-K" set forth in Section 1.01
of the Credit Agreement is deleted.
(g) Clause (i) of the definition of "Change of Control" set forth in
Section 1.01 of the Credit Agreement is amended to read in its entirety as
follows:
(i) any Person or group (within the meaning of Section 13 or
14 of the Exchange Act) of Persons (other than Millenium Chemicals
Inc., Occidental Chemical Corp. and/or their affiliates) shall have
acquired Voting Control of 20% or more of the outstanding shares of
common stock of the Borrower; or
(h) The definition of "Collateral Documents" set forth in Section 1.01 of
the Credit Agreement is amended by adding after the phrase "the JV Subsidiary
Security Agreements," the phrase "the New Collateral Documents,".
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(i) The definition of "Consolidated Net Income" set forth in Section 1.01
of the Credit Agreement is amended by adding after the word "Acquisition" the
phrase "and subsequent Asset Sales."
(j) The definition of "Consolidated Net Worth" set forth in Section 1.01 of
the Credit Agreement is amended by (i) adding "(i)" after the phrase "to exclude
the effect of", (ii) adding after the word "Acquisition" the phrase "and
subsequent Asset Sales" and (iii) adding at the end of the definition the
following:
and (ii) any change subsequent to December 31, 1998 in the cumulative
foreign currency translation adjustment.
(k) The definition of "Distributable Cash Flow" set forth in Section 1.01
of the Credit Agreement is amended to read in its entirety as follows:
"Distributable Cash Flow" means with respect to any Borrower Joint
Venture or non-wholly owned Subject Assets Transferee for any period,
an amount equal to the lesser of "A" or "B" where:
"A" equals the greater of (i) zero and (ii) the Borrower's direct
and/or indirect share of the cash from operations (as defined in
accordance with GAAP and adjusted to exclude the effect of any
extraordinary gain or loss) of such Person for such period minus the
Borrower's direct and/or indirect share of the gross capital
expenditures of such Person for such period; and
"B" equals the greater of (i) zero and (ii) cash distributions by such
Person to the Borrower or a JV Subsidiary during such period (including
repayment of loans made to such Person to finance capital expenditures)
net of equity investments and loans made by the Borrower or a
Subsidiary in or to such Person during such period to finance capital
expenditures.
(l) The definition of "Equistar" set forth in Section 1.01 of the Credit
Agreement is amended by adding after the word "Borrower" and immediately before
the comma the phrase "and, at the date hereof".
(m) The definition of "JV Subsidiaries" set forth in Section 1.01 of the
Credit Agreement is amended by adding after the phrase "Lyondell Refining
Company," the phrase "Lyondell Refining LP, LLC,".
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(n) The definition of "LCR" set forth in Section 1.01 of the Credit
Agreement is amended by deleting the phrase "LYONDELL-CITGO Refining Company,
Ltd., a Texas limited liability company" and substituting therefor the phrase
"LYONDELL-CITGO Refining LP, a Delaware limited partnership" and by adding to
the end of the definition the phrase ", the successor to LYONDELL-CITGO Refining
Company, Ltd., a Texas limited liability company."
(o) The definition of "LCR Recapitalization" set forth in Section 1.01 of
the Credit Agreement is amended to read in its entirety as follows:
"LCR Recapitalization" means the refinancing of certain Existing LCR
Debt, repayment of Debt under the LCR Construction Facility and the
distribution of a portion of the proceeds of the foregoing to the
Borrower.
(p) The definition of "Net Cash Proceeds" set forth in Section 1.01 of the
Credit Agreement is amended by adding before clause (a) thereof the
parenthetical "(at the option of the Borrower)."
(q) The definition of "Non-JV Group" set forth in Section 1.01 of the
Credit Agreement is amended by deleting the word "and" after the phrase
"Borrower Joint Ventures" and substituting therefor a comma and by adding at the
end of the definition the phrase "and any non-wholly owned Subject Assets
Transferees."
(r) The definition of "Ordinary Course Liens" set forth in Section 1.01 of
the Credit Agreement is amended by deleting the word "and" at the end of
Paragraph (m) thereof and adding the following Paragraphs:
(n) Liens customarily granted in connection with Securitization
Transactions on related assets or interests of the Borrower or a
Subsidiary; and
(o) Liens on amounts on deposit in any escrow account contemplated by
clause (ii) of the definition of "ARCO Notes Refinancing", but only to
the extent such Liens secure the obligations of the Borrower to redeem
the securities the cash proceeds of which are on deposit in such escrow
account or to make payments to the escrow agent in its capacity as such
with respect to such account.
(s) The definition of "Reduction Event" set forth in Section 1.01 of the
Credit Agreement is amended by adding after the phrase "Debt Incurrence" in
clause
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(ii) thereof and after the phrase "Equity Issuance" in clause (iii) thereof the
parenthetical "(other than any ARCO Notes Refinancing)."
(t) The definition of "Temporary Cash Investment" set forth in Section 1.01
of the Credit Agreement is amended by adding after the phrase "Foreign
Subsidiary" in clause (v) thereof the phrase "or other Subsidiary conducting
substantially all its operations outside the United States."
Section 3. Amendment to Section 1.02(b). Section 1.02(b) of the Credit
Agreement is amended by deleting the word "or" after the phrase "Borrower Joint
Venture" and substituting therefor a comma and adding after the phrase "JV
Subsidiary" the phrase "or non-wholly owned Subject Assets Transferee."
Section 4. Amendment to Section 2.04(e). Clause (iii) of Section 2.04(e)
of the Credit Agreement is amended by (i) deleting the phrase "pro rata" and
substituting therefor the phrase "in forward order of maturity" and (ii)
deleting the reference to "subsection (a)" and substituting therefor "subsection
(b)."
(b) Clause (iv) of Section 2.04(e) of the Credit Agreement is amended by
deleting the reference to "subsection (b)" and substituting therefor "subsection
(c)."
Section 5. Amendment to Section 4.02. Section 4.02 of the Credit
Agreement is amended by adding after the phrase "UCC financing statements" in
the first parenthetical the phrase ", mortgages or similar instruments."
Section 6. Amendment to Section 4.03(b). Section 4.03(b) of the Credit
Agreement is amended by adding after each reference to the phrase "security
interests" the phrase "or mortgage liens."
Section 7. Amendment to Section 4.04. (a) Each reference to "December 31,
1997" in Section 4.04 of the Credit Agreement is amended to read "December 31,
1998."
(b) Each reference to the phrase "Coopers & ▇▇▇▇▇▇▇ L.L.P., as set forth in
the Borrower's 1997 Form 10-K," and the phrase "Coopers & ▇▇▇▇▇▇▇ L.L.P. and
Price Waterhouse LLP, as set forth in the Borrower's 1997 Form 10-K," in
Paragraphs (a) and (c) of Section 4.04 of the Credit Agreement is amended to
read in its entirety "PricewaterhouseCoopers LLP, copies of which have been
delivered to each of the Lenders,".
(c) The reference to the phrase "Coopers & ▇▇▇▇▇▇▇ L.L.P., as set forth in
the Borrower's 1997 Form 10-K," in Paragraph (e) of Section 4.04 of the Credit
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Agreement is amended to read in its entirety "Deloitte & Touche LLP, copies of
which have been delivered to each of the Lenders,".
(d) Paragraphs (b), (d) and (f) of Section 4.04 of the Credit Agreement are
deleted.
Section 8. Amendment to Section 5.01(a). Section 5.01(a) of the Credit
Agreement is amended by deleting the phrase "Price Waterhouse Coopers L.L.P."
and substituting therefor the phrase "PricewaterhouseCoopers LLP."
Section 9. Amendment to Section 5.07. (a) The parenthetical in clause (i)
of the first proviso in Section 5.07 of the Credit Agreement is amended by
deleting the phrase "or, prior to the consummation of the Equity Issuances
contemplated by Section 5.21, ARCO Chemical."
(b) The final sentence in Section 5.07 of the Credit Agreement is amended
by adding at the end of the sentence the following:
and notes and equity securities, such notes and equity securities
having an aggregate value not to exceed 15% of the aggregate amount of
consideration received by the Borrower and its Subsidiaries with
respect to such Asset Sale; provided that this provision shall not
apply to a Major Asset Sale effected in accordance with Section 5.22.
Section 10. Amendment to Section 5.09. Section 5.09 of the Credit
Agreement is amended by deleting the word "and" at the end of Paragraph (i)
thereof and by adding the following paragraphs:
(k) Liens on TDI Assets (i) securing Debt in an aggregate principal
amount not exceeding $200,000,000 that is incurred or assumed for the
purpose of improving the Rhodia TDI Plant, or (ii) arising pursuant to
a sublicense of the TDI License by the Borrower (or a Subsidiary that
is party to the TDI License) to the Borrower Joint Venture (or special
purpose Subsidiary of Rhodia or the Borrower) that owns the Rhodia TDI
Plant; and
(l) Asset Sale Liens.
Section 11. Amendment to Section 5.10. (a) Paragraph (e) of Section 5.10
of the Credit Agreement is amended by adding at the end of the Paragraph the
following proviso:
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provided that if such Debt Incurrence involves the issuance of Junior
Securities, such Guarantee shall be subordinated to the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee on terms no
less favorable to the Lenders than the subordination provisions
governing the New Senior Subordinated Notes;
(b) Paragraph (f) of Section 5.10 of the Credit Agreement is amended by
adding after the phrase "Foreign Subsidiaries" the phrase "and other
Subsidiaries conducting substantially all their operations outside the United
States."
Section 12. Amendment to Section 5.11. (a) The table in clause (ii) of
Section 5.11 of the Credit Agreement is amended to read in its entirety as
follows:
PERIOD RATIO
------ -----
On or before December 31, 1999 7.75
January 1, 2000 - March 31, 2000 7.25
April 1, 2000 - June 30, 2000 7.00
July 1, 2000 - September 30, 2000 6.50
October 1, 2000 - December 31, 2000 6.00
January 1, 2001 - June 30, 2001 5.00
July 1, 2001 - December 31, 2001 4.00
January 1, 2002 - December 31, 2002 3.00
At all times thereafter 2.50
(b) Clause (ii) of Section 5.11 of the Credit Agreement is further amended
by deleting the proviso.
Section 13. Amendment to Section 5.12. The table in Section 5.12 of the
Credit Agreement is amended to read in its entirety as follows:
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PERIOD RATIO
------ -----
On or before March 31, 1999 1.30
April 1, 1999 - June 30, 1999 1.20
July 1, 1999 - December 31, 1999 1.10
January 1, 2000 - March 31, 2000 1.20
April 1, 2000 - June 30, 2000 1.30
July 1, 2000 - September 30, 2000 1.40
October 1, 2000 - December 31, 2000 1.50
January 1, 2001 - June 30, 2001 1.75
July 1, 2001 - December 31, 2001 1.90
January 1, 2002 - December 31, 2002 2.40
Thereafter 2.60
Section 14. Amendment to Section 5.14. Section 5.14 of the Credit
Agreement is amended by adding the following proviso at the end of the Section:
; provided that, notwithstanding the foregoing, the Borrower will not
permit any JV Subsidiary to incur or at any time be liable with respect
to any such rental payments, other than obligations of such JV
Subsidiary in respect of the Borrower Joint Venture in which it holds
an equity interest and arising by virtue of such JV Subsidiary's
ownership of such equity interest.
Section 15. Amendment to Section 5.15(b). Section 5.15(b) of the Credit
Agreement is amended by deleting the word "and" in clause (iii) thereof and
substituting therefor a comma and by adding at the end of clause (iv) thereof
"and (v) a refinancing of the ARCO Notes with the proceeds of an ARCO Notes
Refinancing."
Section 16. Amendment to Section 5.16. Section 5.16 of the Credit Agreement
is amended by deleting the word "and" in Paragraph (f) thereof and adding after
Paragraph (f) thereof the following Paragraph:
(g) Investments consisting of notes and equity securities received as
consideration for Asset Sales, to the extent permitted by the last
sentence of Section 5.07; and
Section 17. Amendment to Section 5.18. (a) Clause (vii) of the first
proviso in Section 5.18 of the Credit Agreement is amended to read in its
entirety as follows:
(vii) agreements entered into in connection with Debt
Incurrences (including, without limitation, the ARCO Notes
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Refinancing) by the Borrower containing limitations no more
restrictive than those contained in the instruments governing (x)
the Debt described in clauses (i) - (iv) of the definition of
Existing Borrower Debt as in effect on the Closing Date or (y) the
New Senior Notes or the New Senior Subordinated Notes as in effect
on the Amendment 1 Effective Date,
(b) The first proviso of Section 5.18 of the Credit Agreement is further
amended by deleting the word "and" at the end of clause (viii) and adding at the
end of clause (viii) the following:
, (ix) customary limitations on the activities of a Special Purpose
Subsidiary, (x) agreements between the Borrower or a non-wholly owned
Subject Assets Transferee and the Acquiring Person (or an affiliate
thereof) of an interest in such non-wholly owned Subject Assets
Transferee so long as the limitations imposed thereby are not
materially more restrictive than those contained in the agreements set
forth in Schedule 5.20 and
(c) Clause (ix) of the first proviso of Section 5.18 of the Credit
Agreement is amended to read in its entirety as follows:
(xi) from and after the Mandatory Prepayment Release Date, agreements
entered into in connection with the refinancing of Existing Debt
containing limitations no more restrictive than the Existing Debt
refinanced thereby as in effect on the Closing Date; and
(d) The second proviso in Section 5.18 of the Credit Agreement is amended
by amending clause (x) thereof by adding after the phrase "Foreign Subsidiary"
the phrase "or other Subsidiary conducting substantially all its operations
outside the United States," and deleting the phrase "and (y)" and substituting
therefor the phrase ", (y) clauses (c), (d) and (e) shall be inapplicable to any
Subject Assets Transferee and (z)."
Section 18. Amendment to Section 5.19. (a) The parenthetical in
Section 5.19(d)(i) of the Credit Agreement is amended by deleting the word "or"
after the phrase "JV Subsidiary" and substituting therefor a comma and by adding
after the phrase "Foreign Subsidiary" the phrase ", Special Purpose Subsidiary,
or Subject Assets Transferee."
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(b) Section 5.19(d)(ii) of the Credit Agreement is amended by adding at the
end the following proviso:
provided that the Borrower may sell all (but not less than all) of its
direct or indirect ownership interests in either or both of LCR or LMC
in compliance with Section 5.07;
(c) Section 5.19(d)(iv)(x) of the Credit Agreement is amended by deleting
the word "and" after the phrase "clause (i) above" and substituting therefor a
comma and by adding after the phrase "clause (iii) above," the phrase "any
Special Purpose Subsidiary and any Subject Assets Transferee which is not a
Borrower Joint Venture or a Foreign Subsidiary,".
(d) Section 5.19(d)(iv)(y) of the Credit Agreement is amended by adding
after the phrase "Significant Subsidiary of the Borrower" the phrase "or a
Subject Assets Transferee."
(e) Section 5.19 of the Credit Agreement is amended by adding the following
Paragraph (e):
The Borrower shall endeavor in good faith and use reasonable efforts to
deliver to the Administrative Agent the collateral documents and
landlord consent and lien waivers described in Schedule 5.19(e), in
form and substance reasonably satisfactory to the Administrative Agent,
provided that "reasonable efforts" shall not include making monetary
payments or other consideration or granting concessions to third
parties. With respect to each plant, headquarters building or other
facility of the Borrower on which a lien is granted under this Section
5.19(e), the Borrower shall deliver to the Administrative Agent an
opinion of local counsel in each jurisdiction in which such plant,
building or other facility is located, such opinion to be in form and
substance reasonably satisfactory to the Administrative Agent.
Section 19. Amendment to Section 5.20. (a) Each reference to "LCR
Regulations" in Section 5.20 of the Credit Agreement is amended to read in its
entirety "LCR Partnership Agreement."
(b) Paragraph (e) of Section 5.20 of the Credit Agreement is amended to
read in its entirety as follows:
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(e) maintain the rights of (i) Lyondell Petrochemical G.P. Inc. to
appoint the chief executive officer of Equistar, as provided in the
Equistar Partnership Agreement, (ii) Lyondell Refining Company to
appoint, together with CITGO Gulf Coast Refining, Inc., the chief
executive officer of LCR, as provided in the LCR Partnership Agreement
and (iii) Lyondell General Methanol Company to act as managing partner
of LMC pursuant to the LMC Partnership Agreement.
Section 20. Amendment to Section 5.21. Section 5.21 of the Credit
Agreement is amended to read in its entirety as follows:
Section 5.21. Issuance of Junior Securities. On or prior to
June 30, 2000, the Borrower shall consummate the issuance and sale of
Junior Securities as follows:
(a) common stock of the Borrower issued pursuant to one or more
Equity Issuances for gross cash proceeds of not less than $500,000,000
in the aggregate; and
(b) other Junior Securities issued pursuant to one or more
Equity Issuances or Debt Incurrences for gross cash proceeds of not
less than $1,500,000,000 in the aggregate;
provided that for purposes of this Section 5.21 (i) the issuances of
Junior Securities contemplated by Section 26(i) of Amendment No. 1 to
this Credit Agreement shall be included in calculations hereunder and
(ii) the amount of other Junior Securities required by clause (b) above
shall be reduced by 200% of the excess, if any, of (x) the gross cash
proceeds of common stock of the Borrower issued pursuant to one or more
Equity Issuances on or after the Amendment 1 Effective Date over (y)
$500,000,000.
Section 21. Major Asset Sales. The following new Section 5.22 is added
after Section 5.21 of the Credit Agreement:
Section 5.22. Major Asset Sales. (a) In connection with the
consummation of a Major Asset Sale, so long as the conditions set forth
in subsection (b) below are satisfied:
(i) the Borrower and its Subsidiaries may transfer all or
any portion of the Subject Assets
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(whether or not part of the Collateral) to a Subject Assets
Transferee or to an Acquiring Person;
(ii) the Borrower and its Subsidiaries may create Asset
Sale Liens on the Subject Assets;
(iii) any Liens arising under the Collateral Documents on
the portion of the Subject Assets transferred to a Subject
Assets Transferee or to an Acquiring Person will be released in
accordance with the last sentence of Section 9.05(b); and
(iv) any Liens arising under the Collateral Documents on
the Subject Assets not released in accordance with paragraph
(iii) will be subordinate to any Asset Sale Lien on such
Subject Assets.
(b) The provisions of subsection (a) are subject to the
following conditions:
(i) at the time of such Major Asset Sale and after giving
effect thereto (on a pro forma basis for purposes of Section
5.11), no Default shall exist;
(ii) the sum of the gross cash proceeds received by the
Borrower in respect of such Major Asset Sale plus the value of
the interest of the Borrower in the Subject Assets Transferee
(if any) after giving effect to such Major Asset Sale is not
less than the value (as determined by the Board of Directors of
the Borrower) of the portion of the Subject Assets transferred
by the Borrower in connection with such Major Asset Sale;
(iii) the Borrower directly or indirectly is the operator
of the Subject Assets in which it or a Subject Assets
Transferee retains an interest; and
(iv) if any Subject Assets are transferred to a Subject
Assets Transferee, the Borrower complies with Section
5.19(d)(iii) and (iv) in connection with such Major Asset Sale.
(c) No Subject Assets Transferee shall incur any Debt.
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(d) For purposes of this Section 5.22, the following terms have
the following respective meanings:
"Acquiring Person" means a Person other than a Subject Assets
Transferee which acquires (i) all or a portion of the Subject Assets or
(ii) an interest in a Subject Assets Transferee in connection with a
Major Asset Sale.
"Asset Sale Lien" means a Lien on the Subject Assets (including
as a Lien for this purpose contractual rights with respect to the
operation of the Subject Assets) arising in connection with a Major
Asset Sale in favor of the Acquiring Person (or an affiliate thereof)
which Lien does not secure any Debt.
"Major Asset Sale" means an Asset Sale designated by the
Borrower by prior notice to the Administrative Agent as a Major Asset
Sale, so long as in connection therewith (i) the conditions specified
in subsection (b) are satisfied and (ii) the Borrower receives Net Cash
Proceeds in an aggregate amount not less than $1,000,000,000 (which
shall be deemed Net Cash Proceeds of such Major Asset Sale for purposes
of Section 2.04(d)). For this purpose (i) a transaction which produces
substantially the same economic result as a sale of a partial interest
in an asset, as might be achieved, for instance, through contractual
arrangements allocating future revenues and costs attributable to the
asset, shall be deemed an Asset Sale even though there may be no change
in title to the asset or in the ownership of the Person which has title
to the asset and (ii) a subsequent related transaction with the same
Acquiring Person (or an Affiliate thereof) contemplated by the terms of
the initial Major Asset Sale with such Person shall, for purposes of
determining the applicability of and compliance with this Section, be
deemed a single cumulative transaction.
"Subject Assets" means, with respect to any Major Asset Sale,
the assets which are the subject of such Major Asset Sale.
"Subject Assets Transferee" means any Consolidated Subsidiary
or Borrower Joint Venture which becomes the owner of the Subject Assets
in connection with a Major Asset Sale.
15
(e) Nothing in this Section limits the ability of the Borrower
and its Subsidiaries to sell assets (including Collateral) in
compliance with Section 5.07 in transactions which do not constitute
Major Asset Sales, and to obtain a release of Collateral pursuant to
the last sentence of Section 9.05(b) in connection with any such sale.
Section 22. Pricing Schedule. The Pricing Schedule is amended in its
entirety and replaced by the Pricing Schedule attached hereto.
Section 23. Additional Schedules. Schedules 3.01 and 5.19(e) attached
hereto are added to the Credit Agreement.
Section 24. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
Section 25. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Section 26. Effectiveness. This Amendment shall become effective on the
first date (the "Amendment 1 Effective Date") on which all the following
conditions have been satisfied:
(a) receipt by the Administrative Agent of counterparts hereof signed by
each of the Required Lenders and the Borrower (or, in the case of any party as
to which an executed counterpart shall not have been received, receipt by the
Administrative Agent in form satisfactory to it of telegraphic, telex or other
written confirmation from such party of execution of a counterpart hereof by
such party);
(b) receipt by the Administrative Agent of duly executed counterparts of
each New Collateral Document, together with evidence satisfactory to it in its
sole good faith discretion of the effectiveness of the security contemplated
thereby and the perfection of the security interests created thereby (including
the filing of UCC-1s and the delivery of any stock certificates or promissory
notes comprising the Collateral);
(c) receipt by the Administrative Agent of (x) an opinion (addressed to the
Agents and the Lenders) of ▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., special counsel for the
Obligors, substantially to the effect of Exhibit E to the Credit Agreement with
reference to the Loan Documents after giving effect to this Amendment, (y) an
opinion (addressed to the Agents and the Lenders) of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
General Counsel of the Borrower, substantially to the effect of Exhibit F to the
Credit Agreement with reference to the Loan Documents after giving effect to
this Amendment, each dated the Amendment 1
16
Effective Date and each covering such additional matters relating to the
transactions contemplated hereby as the Required Lenders may reasonably request
and (z) with respect to each plant, headquarters building or other facility of
the Borrower on which a lien is granted under a New Collateral Document, an
opinion of local counsel in each jurisdiction in which such plant, building or
other facility is located, such opinion to be in form and substance reasonably
satisfactory to the Administrative Agent.
(d) receipt by the Administrative Agent of an opinion (addressed to the
Agents and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Agents, substantially to the effect of Exhibit G to the Credit Agreement with
reference to the Loan Documents after giving effect to this Amendment, dated the
Amendment 1 Effective Date and covering such additional matters relating to the
transactions contemplated hereby as the Required Lenders may reasonably request;
(e) receipt by the Administrative Agent of payment of an amendment fee for
the account of each Lender which shall have executed and delivered a counterpart
hereof (including delivery by facsimile transmission) not later than April 1,
1999 in an amount equal to 0.25% of the Credit Exposure of such Lender at such
date;
(f) receipt by each of the Agents, the Arranger and the Co-Arrangers of
payment of all other costs, fees and expenses (including, without limitation,
reasonable legal fees and expenses for which invoices shall have been submitted
to the Borrower) and other compensation payable to any of the foregoing on or
prior to the Amendment 1 Effective Date in connection with the Loan Documents;
(g) the fact that there shall have been no material adverse change in the
financial condition, business, assets, results of operations, liabilities or
prospects of the Borrower and its Subsidiaries, taken as a whole, since the most
recently ended fiscal year of such entity for which audited financial statements
have been delivered to the Lenders;
(h) receipt by the Administrative Agent of all documents it may reasonably
request relating to the existence of each Obligor, the corporate authority for
the Loan Documents, and any other matters relevant hereto, all in form and
substance satisfactory to such Agent in its sole good faith discretion; and
(i) receipt by the Administrative Agent of evidence satisfactory to it that
the Borrower shall have consummated (i) an issuance of common stock of the
Borrower pursuant to an Equity Issuance for gross cash proceeds (i.e., total
cash proceeds before underwriting discounts and commissions and expenses of
issuance) of not less than $350,000,000; (ii) an issuance of New Senior
Subordinated Notes pursuant to a Debt Incurrence for gross cash proceeds of not
less than $500,000,000; and (iii) an
17
issuance of New Senior Notes pursuant to a Debt Incurrence for gross cash
proceeds of not less than the difference between $1,000,000,000 and the gross
cash proceeds of the issuance of New Senior Subordinated Notes contemplated by
clause (ii).
Promptly after the Amendment 1 Effective Date occurs, the Administrative Agent
shall notify the Borrower, the other Agents and the Lenders thereof, and such
notice shall be conclusive and binding on all parties hereto.
18
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
LYONDELL CHEMICAL COMPANY
By:
-----------------------------------
Title: Vice President, Finance &
Treasurer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
19
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent and as Lender
By:
-----------------------------------
Name:
Title:
DLJ CAPITAL FUNDING, INC., as
Syndication Agent and as Lender
By:
-----------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as Documentation Agent and as Lender
By:
-----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Documentation Agent
By:
-----------------------------------
Name:
Title:
20
CITIBANK, N.A., as Documentation
Agent and as Lender
By:
-----------------------------------
Name:
Title:
NATIONSBANK, N.A., as
Documentation Agent and as Lender
By:
-----------------------------------
Name:
Title:
CHASE BANK OF TEXAS
NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
Title:
ABN AMRO BANK N.V.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
21
ALLSTATE INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
ARCHIMEDES FUNDING, LLC
By:
-----------------------------------
Name:
Title:
BANK OF MONTREAL
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
-----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
-----------------------------------
Name:
Title:
22
THE BANK OF TOKYO-MITSUBISHI
LTD., HOUSTON AGENCY
By:
-----------------------------------
Name:
Title:
BANKBOSTON, N.A.
By:
-----------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
23
BARCLAYS BANK PLC
By:
-----------------------------------
Name:
Title:
BAYERISCHE VEREINSBANK AG
NEW YORK BRANCH
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
BHF - BANK AKTIENGESELLSCHAFT
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
24
CIBC INC.
By:
-----------------------------------
Name:
Title:
COMMONWEALTH LIFE INSURANCE CO.
By:
-----------------------------------
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
-----------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
25
CRESCENT/MACH I PARTNERS LP
By:
-----------------------------------
Name:
Title:
CYPRESS TREE INVESTMENT FUND, LLC
By: CypressTree Investment Management
Company, Inc. its Managing Member
By:
-----------------------------------
Name:
Title:
CYPRESSTREE INVESTMENT PARTNERS I, LTD.
By: CypressTree Investment Management
Company, Inc. its Managing Member
By:
-----------------------------------
Name:
Title:
CYPRESSTREE INSTITUTIONAL FUND, LLC
By: CypressTree Investment Management
Company, Inc. its Managing Member
By:
-----------------------------------
Name:
Title:
26
CYPRESS TREE INVESTMENT PARTNERS I, LTD.
By:
-----------------------------------
Name:
Title:
DEBT STRATEGIES FUND, INC.
By:
-----------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇ INSTITUTIONAL SENIOR
LOAN FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
as investment advisor
By:
-----------------------------------
Name:
Title:
27
THE FIRST NATIONAL BANK OF CHICAGO
By:
-----------------------------------
Name:
Title:
FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured
Management, Inc., as attorney-in-fact
By:
-----------------------------------
Name:
Title:
FRANKLIN FLOATING RATE TRUST
By:
-----------------------------------
Name:
Title:
THE FUJI BANK, LIMITED, NEW YORK BRANCH
By:
-----------------------------------
Name:
Title:
28
GCB INVESTMENTS PORTFOLIO
By: Citibank, N.A., as manager
By:
-----------------------------------
Name:
Title:
ING HIGH INCOME PRINCIPAL PRESERVATION
FUND HOLDINGS, LDC
By:
-----------------------------------
Name:
Title:
KZH-III LLC
By:
-----------------------------------
Name:
Title:
KZH IV CORPORATION
By:
-----------------------------------
Name:
Title:
KZH - CNC CORPORATION
By:
-----------------------------------
Name:
Title:
29
KZH CRESCENT CORPORATION
By:
-----------------------------------
Name:
Title:
KZH-CYPRESSTREE-1 CORPORATION
By:
-----------------------------------
Name:
Title:
KZH-ING-2 CORPORATION
By:
-----------------------------------
Name:
Title:
KZH-SOLEIL-2 CORPORATION
By:
-----------------------------------
Name:
Title:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
30
MASSMUTUAL HIGH YIELDPARTNERS II, LLC
By: HYP Management, Inc. as managing
member
By:
-----------------------------------
Name:
Title:
MEDICAL LIABILITY MUTUAL INSURANCE
COMPANY
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND, INC.
By:
-----------------------------------
Name:
Title:
METROPOLITAN LIFE INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
31
ML CLO XIX STERLING (CAYMAN) LTD.
By: Sterling Asset Manager, L.L.C.,
as its investment advisor
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
PRIME INCOME TRUST
By:
-----------------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
By: NatWest Capital Markets Limited,
its agent
By: Greenwich Capital Markets, Inc.,
its agent
By:
-----------------------------------
Name:
Title:
NEW YORK LIFE INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By: New York Life Insurance Company
By:
-----------------------------------
Name:
Title:
32
OCTAGON LOAN TRUST
By: Octagon Credit Investors, as manager
By:
-----------------------------------
Name:
Title:
ORIX USA CORPORATION
By:
-----------------------------------
Name:
Title:
OSPREY INVESTMENTS PORTFOLIO
By: Citibank, N.A., as manager
By:
-----------------------------------
Name:
Title:
PRIMERICA LIFE INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By:
-----------------------------------
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By:
-----------------------------------
Name:
Title:
SENIOR HIGH INCOME PORTFOLIO INC.
By:
-----------------------------------
Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
-----------------------------------
Name:
Title:
34
▇▇▇▇▇ ▇▇▇ & FARNHAM INCORPORATED,
as agent for Keyport Life Insurance
By:
-----------------------------------
Name:
Title:
STRONG CAPITAL MANAGEMENT
By:
-----------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED
By:
-----------------------------------
Name:
Title:
THE TOKAI BANK
By:
-----------------------------------
Name:
Title:
TRANSAMERICA LIFE INSURANCE AND
ANNUITY COMPANY
By:
-----------------------------------
Name:
Title:
35
THE TRAVELERS INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
UNITED OF OMAHA LIFE INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL
By:
-----------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
AERIES FINANCE LTD.
By:
-----------------------------------
Name:
Title:
AG CAPITAL FUNDING PARTNERS, L.P.
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.p.,
as investment advisor
By:
-----------------------------------
Name:
Title:
36
AMARA-1 FINANCE LTD.
By:
-----------------------------------
Name:
Title:
ARAB AMERICAN BANK
By:
-----------------------------------
Name:
Title:
ARAB BANK PLC
By:
-----------------------------------
Name:
Title:
ARCHIMEDES FUNDING II, LTD
By: ING Capital Advisors, Inc.,
as collateral manager
By:
-----------------------------------
Name:
Title:
BALANCED HIGH YIELD FUND II
By:
-----------------------------------
Name:
Title:
37
BANCO ESPIRITO SANTO E COMERCIAL DE
LISBON, NASSAU BRANCH
By:
-----------------------------------
Name:
Title:
BANK LEUMI USA
By:
-----------------------------------
Name:
Title:
BANK POLSKA KASA OPIEKI S.A. PEKAO S.A.
GROUP, NEW YORK BRANCH
By:
-----------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By:
-----------------------------------
Name:
Title:
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ I
By: General Reunew England Asset
Management Inc., as collateral
manager
By:
-----------------------------------
Name:
Title:
BEAR ▇▇▇▇▇▇▇ INVESTMENT PRODUCTS INC.
By:
-----------------------------------
Name:
Title:
BELLSOUTH DOMESTIC BOND (ACCT 26)
By: Pacific Investment Management
Company, as its investment advisor,
acting through State Street Bank &
Trust Co. in the nominee name of
Marine Crew & Co.
By:
-----------------------------------
Name:
Title:
BELLSOUTH GLOBAL BOND (ACCT 826)
By: Pacific Investment Management
Company, as its investment advisor,
acting through State Street Bank &
Trust Co. in the nominee name of
Marine Crew & Co.
By:
-----------------------------------
Name:
Title:
39
CAPTIVA FINANCE LTD.
By:
-----------------------------------
Name:
Title:
CAPTIVA II FINANCE LTD.
By:
-----------------------------------
Name:
Title:
CAPTIVA III FINANCE, LTD.
By: Pacific Investment Management
Company, as its investment advisor
By:
-----------------------------------
Name:
Title:
CARAVELLE INVESTMENT FUND, L.L.C.
By:
-----------------------------------
Name:
Title:
40
CARILLON HOLDING, LIMITED
By:
-----------------------------------
Name:
Title:
CERES FINANCE LTD.
By:
-----------------------------------
Name:
Title:
CHANCELLOR/TRITON CBO, LIMITED
By: Invesco Senior Secured Management,
Inc., as collateral manager
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇ COMMERCIAL BANK LTD.,
NEW YORK BRANCH
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇ BANK CO., LTD. NEW YORK AGENCY
By:
-----------------------------------
Name:
Title:
41
CHINATRUST BANK (U.S.A.)
By:
-----------------------------------
Name:
Title:
DELANO COMPANY
By: Pacific Investment Management
Company, as its investment advisor
By:
-----------------------------------
Name:
Title:
ELC (CAYMAN) LTD.
By:
-----------------------------------
Name:
Title:
FC CBO II LIMITED
By:
-----------------------------------
Name:
Title:
42
FIRST COMMERCIAL BANK
By:
-----------------------------------
Name:
Title:
FIRST DOMINION FUNDING I
By:
-----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
-----------------------------------
Name:
Title:
GALAXY CLO 1999-1, LTD.
By: SAI Investment Adviser, Inc.,
its collateral manager
By:
-----------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-----------------------------------
Name:
Title:
43
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.
By:
-----------------------------------
Name:
Title:
GUARANTY FEDERAL BANK, F.S.B.
By:
-----------------------------------
Name:
Title:
GULF INTERNATIONAL BANK B.S.C.
By:
-----------------------------------
Name:
Title:
IKB DEUTSCHE INDUSTRIEBANK AG
LUXEMBOURG BRANCH
By:
-----------------------------------
Name:
Title:
IMPERIAL BANK
By:
-----------------------------------
Name:
Title:
44
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital Luxembourg, as
collateral manager
By:
-----------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital Luxembourg
By:
-----------------------------------
Name:
Title:
ING CAPITAL SENIOR SECURED HIGH INCOME
FUND, L.P.
By: ING Capital Advisors, Inc.,
as investment advisor
By:
-----------------------------------
Name:
Title:
45
INTEGRITY LIFE INSURANCE
By:
-----------------------------------
Name:
Title:
KBC BANK
By:
-----------------------------------
Name:
Title:
KZH CRESCENT - 3 LLC
By:
-----------------------------------
Name:
Title:
KZH CRESCENT LLC
By:
-----------------------------------
Name:
Title:
KZH CRESCENT - 2 LLC
By:
-----------------------------------
Name:
Title:
46
KZH HIGHLAND-2 LLC
By:
-----------------------------------
Name:
Title:
KZH STERLING LLC
By:
-----------------------------------
Name:
Title:
KZH-ING-3 LLC
By:
-----------------------------------
Name:
Title:
KZH-PAMCO CORPORATION
By:
-----------------------------------
Name:
Title:
KZH ▇▇▇▇▇▇▇▇ LLC
By:
-----------------------------------
Name:
Title:
47
▇▇▇▇▇▇▇ ▇▇▇▇▇ DEBT STRATEGIES PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as investment advisor
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as investment advisor
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as investment advisor
By:
-----------------------------------
Name:
Title:
48
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
-----------------------------------
Name:
Title:
MITSUBISHI TRUST AND BANKING CORPORATION
By:
-----------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management, L.P.
as collateral manager
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
By:
-----------------------------------
Name:
Title:
MOUNTAIN CAPITAL CLO I, LTD.
By:
-----------------------------------
Name:
Title:
49
THE MUTUAL LIFE INSURANCE COMPANY OF
NEW YORK
By:
-----------------------------------
Name:
Title:
NORSE CBO, LTD.
By: ▇▇▇▇▇▇▇▇ Capital Management, LLC
as its investment advisor
By: ▇▇▇▇▇▇▇▇ Capital Advisors, LLC
its manager and pursuant to delegated
authority
By:
-----------------------------------
Name:
Title:
NORTHWOODS CAPITAL, LIMITED
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P.,
as investment advisor
By:
-----------------------------------
Name:
Title:
50
OASIS COLLATERALIZED HIGH INCOME
PORTFOLIOS-I, LTD.
By:
-----------------------------------
Name:
Title:
OXFORD STRATEGIC INCOME FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as investment
advisor
By:
-----------------------------------
Name:
Title:
PACIFICA PARTNERS 1, L.P.,
By: Imperial Credit Asset Management,
as its investment manager
By:
-----------------------------------
Name:
Title:
▇▇▇ CAPITAL FUNDING LP
By: Highland Capital Management, L.P.
as collateral manager
By:
-----------------------------------
Name:
Title:
51
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.
as collateral manager
By:
-----------------------------------
Name:
Title:
PEOPLES SECURITY LIFE INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments Inc.,
as its investment manager
By:
-----------------------------------
Name:
Title:
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
By: Pilgrim America Investments, Inc.
as its investment manager
By:
-----------------------------------
Name:
Title:
52
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By: Pilgrim America Investments, Inc.,
as its investment advisor
By:
-----------------------------------
Name:
Title:
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD.
By: Pilgrim America Investments, Inc.
as its investment manager
By:
-----------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By: Pilgrim America Investments, Inc.
as its investment manager
By:
-----------------------------------
Name:
Title:
ATHENA CDO, LIMITED
By: Pacific Investment Management
Company as its investment advisor
By:
-----------------------------------
Name:
Title:
53
PIMCO HIGH YIELD FUND (ACCT 705)
By: Pacific Investment Management
Company, as its investment advisor
acting through investors fiduciary
trust company in the nominee name of
IFTCO
By:
-----------------------------------
Name:
Title:
ILLINOIS TEACHERS RETIREMENT SYSTEM
(ACCT 59)
By: Pacific Investment Management
Company as investment advisor,
acting through Northern Trust
Company in the nominee name of How
& Co.
By:
-----------------------------------
Name:
Title:
SAMARITAN HEALTH SYSTEM
By: Pacific Investment Management
Company as its investment advisor,
acting through Bankers Trust
Company in the nominee name of
Pitt & Co.
By:
-----------------------------------
Name:
Title:
54
STOCKSPLUS LP SUBFUND A (ACCT 401),
By: Pacific Investment Management
Company as investment advisor,
acting through Investors Fiduciary
Trust Company in the nominee name of
IFTCO
By:
-----------------------------------
Name:
Title:
PIMCO TOTAL RETURN FUND (ACCT 700)
By: Pacific Investment Management
Company, as investment advisor,
acting through Investors Fiduciary
Trust Company in the nominee name of
IFTCO
By:
-----------------------------------
Name:
Title:
WESTERN CONFERENCE OF TEAMSTERS PENSION
TRUST FUND U INVESTMENTS (ACCT 420)
By: Pacific Investment Management
Company, as its investment advisor,
acting through the Chase Manhattan
Bank in the nominee name of ▇▇▇▇▇▇ &
Co.
By:
-----------------------------------
Name:
Title:
PNC BANK, N. A.
By:
-----------------------------------
Name:
Title:
55
PROVIDENT CBO I, LIMITED
By: Provident Investment Management, LLC
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ ASSET ALLOCATION FUNDS - BALANCED
PORTFOLIO
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ DIVERSIFIED INCOME TRUST
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ FUNDS TRUST- ▇▇▇▇▇▇ HIGH YIELD
TRUST II
By:
-----------------------------------
Name:
Title:
56
▇▇▇▇▇▇ HIGH YIELD ADVANTAGE FUND
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ HIGH YIELD TRUST
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ MASTER INTERMEDIATE INCOME TRUST
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ PREMIER INCOME TRUST
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ VARIABLE TRUST - PVT HIGH YIELD
FUND
By:
-----------------------------------
Name:
Title:
57
▇▇▇▇▇▇ VARIABLE TRUST - PVT DIVERSIFIED
INCOME FUND
By:
-----------------------------------
Name:
Title:
REPUBLIC NATIONAL BANK OF NEW YORK
By:
-----------------------------------
Name:
Title:
ROYALTON COMPANY
By: Pacific Investment Management
Company, as its investment advisor
By:
-----------------------------------
Name:
Title:
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By:
-----------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
investment advisor
By:
-----------------------------------
Name:
Title:
58
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST,
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as investment
advisor
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ CDO, LIMITED
By:
-----------------------------------
Name:
Title:
SOUTHERN PACIFIC BANK
By:
-----------------------------------
Name:
Title:
SRF TRADING, INC.
By:
-----------------------------------
Name:
Title:
59
SRV-HIGHLAND, INC.
By:
-----------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as trustee for General Motors Cash
Management Master Trust
By:
-----------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as trustee for General Motors Welfare
Benefits Trust
By:
-----------------------------------
Name:
Title:
STRATA FUNDING LTD.
By:
-----------------------------------
Name:
Title:
60
STRONG ADVANTAGE FUND, INC.
By:
-----------------------------------
Name:
Title:
SUN TRUST BANK, ATLANTA
By:
-----------------------------------
Name:
Title:
TAIPEI BANK, NEW YORK AGENCY
By:
-----------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:
-----------------------------------
Name:
Title:
THE TOYO TRUST & BANKING CO., LTD.
By:
-----------------------------------
Name:
Title:
61
TRAVELERS CORPORATE LOAN FUND, INC.,
By: Travelers Asset Management
International Corporation
By:
-----------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
By: ▇▇▇ ▇▇▇▇▇▇ American Capital
Management, Inc., as collateral
manager
By:
-----------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST
By:
-----------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST
By:
-----------------------------------
Name:
Title:
62
▇.▇. ▇▇▇▇▇▇ INVESTMENT MANAGEMENT INC.,
as Investment Manager for the Ensign Peak
Advisors, Inc. Saint Gems
By:
-----------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇ INVESTMENT MANAGEMENT INC.,
as Investment Manager for Ford Motor
Company Cash State Street Bank --
Custodian
By:
-----------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇ INVESTMENT MANAGEMENT INC.,
as Investment Manager for the
Interpayment Service Limited/▇▇▇▇▇▇ ▇▇▇▇
Bank of New York (Brussels) Custodian
By:
-----------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇ INVESTMENT MANAGEMENT INC.,
as Investment Manager for the
Interpayment Service Limited/▇▇▇▇▇▇ ▇▇▇▇
Corporate Cash -- Domestic Bank of New
York Custodian
By:
-----------------------------------
Name:
Title:
63
▇.▇. ▇▇▇▇▇▇ INVESTMENT MANAGEMENT INC.,
as Investment Manager for the JPM US
Global Strategic Income Fund (Special
SituationPortfolio) Chase Luxembourg
Custodian
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, as Investment Manager for the Apple
IV-HighYield-State Street Bank & Trust
Company London-Master Custodian
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, as Trustee for the Commingled
Pension Trust Fund
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, as Investment Manager for the
Global Strategic Income Portfolio
(Special Situation Portfolio) State
Street Bank & Trust
By:
-----------------------------------
Name:
Title:
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇, as Advisor of ▇▇ ▇▇▇▇▇▇ High Yield
Fund, LLC
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, as Trustee for the MGT High Yield
Bond Fund
By:
-----------------------------------
Name:
Title:
65
FC CBO LIMITED
By:
-----------------------------------
Name:
Title:
66
PRICING SCHEDULE
"Margin" means, with respect to Euro-Dollar Loans of any Class, the sum of
(a) (i) for any date prior to the earliest date on which all Term Loans-C and
Term Loans-D (including all interest accrued thereon) have been repaid in full,
the higher of (I) the applicable rate per annum for Loans of such Class set
forth in Table I below and (II) the applicable rate per annum for Loans of such
Class set forth in Table II below, based on the Pricing Level on such date, and
(ii) for any date thereafter, the applicable rate per annum for Loans of such
Class set forth in Table II below, based on the Pricing Level on such date plus
(b) for any day prior to the date on which the Borrower shall have issued all
Junior Securities required to be issued by it pursuant to Section 5.21, 0.25%
per annum:
Table I - Euro-Dollar Margins
--------------------------------------------------------------------------------
Euro-Dollar Margin for Term Loans-B | Eurodollar Margin for Revolving Loans,
| Term Loans-A, Term Loans-C and
| Term-Loans D
--------------------------------------------------------------------------------
3.25% | 2.75%
--------------------------------------------------------------------------------
Table II - Euro-Dollar Margins
------------------------------------------------------------------------------------
PRICING LEVEL LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
------------------------------------------------------------------------------------
Euro-Dollar Margin 3.25% 3.25% 3.25% 3.75% 3.25%
for Term Loans-B
------------------------------------------------------------------------------------
Euro-Dollar Margin for 2.25% 2.50% 2.75% 3.25% 2.00%
Revolving Loans, Term
Loans-A, Term Loans-C and
Term Loans-D
------------------------------------------------------------------------------------
"Margin" means, with respect to Base Rate Loans of any Class at any date,
(i) the Margin with respect to Euro-Dollar Loans of such Class at such date
minus (ii) 1.00%.
"Commitment Fee Rate" means (i) for any date prior to the earliest date on
which all Term Loans-C and Term Loans-D (including interest accrued thereon)
have been repaid in full, 0.50% per annum, and (ii) for any date thereafter, the
applicable rate per annum set forth in Table III below, based on the Pricing
Level on such date:
Table III - Commitment Fee Rate
--------------------------------------------------------------------------------
Level I Level II Level III Level IV Level V
--------------------------------------------------------------------------------
0.35% 0.40% 0.45% 0.50% 0.50%
--------------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Pricing" applies at any date if, at such date, the Borrower has
Senior Debt Ratings at or above the level of Baa3 by ▇▇▇▇▇'▇ or BBB- by S&P.
"Level II Pricing" applies at any date if, at such date, (i) the Borrower
has Senior Debt Ratings at or above the level of Ba1 by ▇▇▇▇▇'▇ or BB+ by S&P
and (ii) Level I Pricing does not apply.
"Level III Pricing" applies at any date if, at such date, (i) the Borrower
has Senior Debt Ratings at or above the level of Ba2 by ▇▇▇▇▇'▇ and BB by S&P
and (ii) neither Level I Pricing nor Level II Pricing applies.
"Level IV Pricing" applies at any date if, at such date, (i) the Borrower
has Senior Debt Ratings at or above the level of Ba3 by ▇▇▇▇▇'▇ and BB- by S&P
and (ii) none of Level I Pricing, Level II Pricing and Level III Pricing
applies.
"Level V Pricing" applies at any date if, at such date, no other Pricing
Level applies.
"Pricing Level" refers to the determination of which of ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇ or Level V Pricing applies on any date.
For purposes of determining whether Level I Pricing or Level II Pricing
applies: (a) if the Borrower has split-rated Senior Debt Ratings and the
differential is one category, the higher rating will apply (e.g., Ba1/BBB-
results in Level I Pricing); but (b) if the Borrower has split-rated Senior Debt
Ratings and the differential is more than one full rating category, the rating
at the midpoint will apply (e.g., Ba1/BB- results in Level III Pricing) and if
there is no such midpoint category, the higher of the two intermediate
categories will apply (e.g., Baa3/BB- results in Level II Pricing).
SCHEDULE 3.01
NEW COLLATERAL DOCUMENTS
1. Security Agreement of Lyondell Chemical Company
2. Security Agreement of Lyondell Chemical Worldwide, Inc.
3. Pledge Agreement of Non-Borrower Joint Venture Subsidiaries
4. Pledge Agreement of Restricted Subsidiaries
5. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Financing Statement from Lyondell Chemical Worldwide, Inc. to a trustee for
the benefit of ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Collateral
Agent, with respect to Bayport, Texas facility
6. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Financing Statement from Lyondell Chemical Worldwide, Inc. to a trustee for
the benefit of ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Collateral
Agent, with respect to Channelview, Texas facility
7. Act of Mortgage, Assignment of Leases and Rents, Security Agreement and
Financing Statement from Lyondell Chemical Worldwide, Inc. to ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Collateral Agent, with respect to
Lake Charles, Louisiana facility
SCHEDULE 5.19(e)
1. Subject to receipt of appropriate consents from ground lessors, Leasehold
Mortgage, Assignment of Leases and Rents, Security Agreement and Financing
Statement from Lyondell Chemical Worldwide, Inc. to ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Collateral Agent, with respect to Institute, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ facilities
2. Landlord Waiver, Consent and Intercreditor Agreement among ▇▇▇▇▇-▇▇▇▇▇▇▇ AG
Company, as landlord, Lyondell Chemical Worldwide, Inc., as tenant, and
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Collateral Agent, with
respect to Institute, West Virginia facility
3. Landlord Waiver, Consent and Intercreditor Agreement among Union Carbide
Chemicals and Plastics Company, Inc., as landlord, Lyondell Chemical
Worldwide, Inc., as tenant, and ▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Collateral Agent, with respect to South Charleston, West Virginia
facility
4. Subject to receipt of appropriate consent from Atlantic Richfield Company,
Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and
Financing Statement from Lyondell Chemical Worldwide, Inc. to ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Collateral Agent, with respect to
West ▇▇▇▇▇▇▇ ▇▇▇▇, Newtown Township, Delaware County, Pennsylvania facility
5. Landlord Waiver, Consent and Intercreditor Agreement among Atlantic
Richfield Company, as landlord, Lyondell Chemical Worldwide, Inc., as
tenant, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Collateral Agent,
with respect to Newtown Square, Pennsylvania facility