FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT, dated as of June 24, 2002 (this "Amendment"), to
the Credit Agreement, dated as of June 25, 2001 (the "Credit Agreement"),
among DOW ▇▇▇▇▇ & COMPANY, INC. (the "Company"), the several banks and
other financial institutions from time to time parties thereto (the
"Lenders"), LLOYDS TSB BANK PLC and WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as co-documentation agents (in such capacity, the "Documentation Agent"),
THE BANK OF NEW YORK and FLEET NATIONAL BANK as co- syndication agents (in
such capacity, the "Syndication Agent") JPMorgan Chase Bank (f/k/a The
Chase Manhattan Bank) as administrative agent (in such capacity, the
"Administrative Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreement
on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises herein contained
and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein,
capitalized terms used herein which are defined in the Credit Agreement are
used herein as therein defined.
2. Amendment to Subsection 1.1 of the Credit
Agreement. Subsection 1.1 of the Credit Agreement is hereby amended by
(a) replacing the terms "Aggregate Loan Commitments", "Combined Loan
Commitments", "Commitment Percentage" and "Other Agreement" appearing
therein with the following defined terms:
"Aggregate Loan Commitments": at any time,
the sum of the aggregate amount of the Loan Commitments then
in effect and the aggregate amount of the Loan Commitments
(as defined in the Other Agreements) then in effect.
"Combined Loan Commitments": as to any Lender
at any time, the sum of such Lender's Loan Commitment then in
effect and such Lender's Loan Commitments (as defined in the
Other Agreements) then in effect.
"Commitment Percentage": as to any Lender at
any particular time, the percentage of the aggregate Loan
Commitments then constituted by such Lender's Loan
Commitment.
"Other Agreements": the 4-year Credit Agreement
and 364-Day Credit Agreement.
and (b) adding the following definitions in the appropriate alphabetical
order:
"4-Year Credit Agreement": the 4-Year Credit
Agreement, dated as of the date hereof, among the Company,
the several banks and other financial institutions or
entities from time to time parties thereto, Lloyds TSB Bank
plc and Mellon Bank, N.A., as co-documentation agents, The
Bank of New York and Fleet National Bank, as co-syndication
agents, and JPMorgan Chase Bank, as administrative agent, as
amended, supplemented or otherwise modified or replaced from
time to time.
"364-Day Credit Agreement": the 364-Day Credit
Agreement, dated as of the date hereof, among the Company,
the several banks and other financial institutions or
entities from time to time parties thereto, Lloyds TSB Bank
plc and Mellon Bank, N.A., as co-documentation agents, The
Bank of New York and Fleet National Bank, as co-syndication
agents, and JPMorgan Chase Bank, as administrative agent, as
amended, supplemented or otherwise modified or replaced from
time to time.
"Consolidated Total Assets": at a particular
date, all amounts which would be included as assets on a
consolidated balance sheet of the Company and its
Subsidiaries at such date, determined in accordance with
GAAP.
3. Amendment to Subsection 2.4 of the Credit
Agreement. to Subsection 2.4 of the Credit Agreement is hereby amended by
deleting, in its entirety, subsection (b) thereof and substituting in lieu
thereof the following:
"(b) The Company agrees to pay, in immediately
available funds, to the Administrative Agent for the account of
each Lender a fee (the "Utilization Fee") based upon the
average daily amount of the outstanding Loans of such Lender at
a rate per annum equal to 0.05%, when and for as long as the
aggregate outstanding principal amount of the sum of (a) the
Loans hereunder plus (b) the aggregate principal amount of the
Loans (as defined therein) under the Other Agreements exceeds
50% of (i) until the Termination Date (as defined therein) of
the 364-Day Credit Agreement, the Aggregate Loan Commitments,
(ii) from the Termination Date (as defined therein) of the
364-Day Credit Agreement through the Maturity Date (as defined
therein) of the 364-Day Credit Agreement, the sum of (x) the
aggregate amount of the Loan Commitments plus (y) the aggregate
amount of the Loan Commitments (as defined therein) under the
4-Year Credit Agreement plus (z) the aggregate amount of the
Loan Commitments (as defined therein) under the 364-Day Credit
Agreement in effect on the Termination Date (as defined
therein) of the 364-Day Credit Agreement immediately prior to
giving effect to any reduction thereof required to occur on
such date pursuant to the first proviso of the second sentence
of subsection 2.1(a) of the 364-Day Credit Agreement and (iii)
after the Maturity Date (as defined therein) of the 364-Day
Credit Agreement, the aggregate amount of the Loan Commitments
hereunder and under the 4-Year Credit Agreement. The
Utilization Fee shall be payable quarterly in arrears on the
last day of each March, June, September and December,
commencing on the first of such dates to occur after the date
hereof, and on the Maturity Date (or such earlier date on which
the Loan Commitments shall terminate and the Loans and all
interest, fees and other amounts in respect thereof shall have
been paid in full).
4. Amendment to Subsection 2.12(a) of the Credit
Agreement. Subsection 2.12(a) of the Credit Agreement is hereby amended by
deleting clause (i) of the proviso thereto and substituting in lieu thereof
the following:
"(i) that are attributable to such Lender's failure to comply
with the requirements of paragraph (d) or (e) of this
subsection 2.12 or failure to obtain either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 or any applicable successor form from any Transferee that
is a Participant or a Competitive Loan Assignee certifying that
such Participant or Competitive Loan Assignee is entitled to
receive payments under this Agreement without deduction or
withholding of any United Stated federal income taxes or"
5. Amendment to Subsection 2.16 of the Credit
Agreement. Subsection 2.16 of the Credit Agreement is hereby amended by
replacing the defined term "Other Agreement" appearing in the sixth
sentence thereof, with the defined term "Other Agreements".
6. Amendment to Subsection 3.12 of the Credit
Agreement. Subsection 3.12 of the Credit Agreement is hereby amended by
(a) replacing the phrase "commonly controlled entity" appearing in the
first sentence thereof with the defined term "Commonly Controlled Entity"
and (b) replacing the phrase "requirements of law" appearing the in the
fourth sentence thereof with the defined term "Requirements of Law".
7. Conditions to Effectiveness. This Amendment
shall become effective as of the date set forth above upon satisfaction of
the following conditions precedent:
(a) The Administrative Agent shall have received
counterparts of this Amendment executed by the Company and the
Required Lenders; and
(b) The Administrative Agent shall have received
counterparts of each of (i) the 4-Year Credit Agreement, and
(ii) the 364-Day Credit Agreement executed and delivered by the
Company and all other parties thereto.
8. Limited Effect. Except as expressly amended
hereby, all of the provisions, covenants, terms and conditions of the
Credit Agreement are and shall continue to be in full force and effect.
9. Representations and Warranties. The
representations and warranties made by the Company contained in the Credit
Agreement are true and correct on and as of the date hereof after giving
effect to this Amendment.
10. Counterparts. This Amendment may be executed in
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed and delivered by their duly authorized
officers as of the date first written above.
DOW ▇▇▇▇▇ & COMPANY, INC.
By:/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Finance and Controller
JPMORGAN CHASE BANK,
As Administrative Agent and as a Lender
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
HSBC BANK USA
By:/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President - 7222
LLOYDS TSB BANK PLC
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Corporate
Bankind, USA H009
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
Corporate Banking USA M067
MELLON BANK, N.A.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
Title: SVP
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By:/s/ D. ▇▇▇▇▇ ▇▇▇▇▇
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Name: D. ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Credit Officer
NATIONAL AUSTRALIA BANK LIMITED,
A.C.N. 004044937
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
THE BANK OF NEW YORK
By:/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
By:/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President