EXHIBIT 4.1
CONFORMED COPY
SECOND AMENDMENT dated as of March 15, 1999
(this "Amendment"), among OCCIDENTAL PETROLEUM
CORPORATION, a Delaware corporation (hereinafter
called the "Company"), the banks (the "Banks") party
to the Credit Agreement (as defined below), MORGAN
GUARANTY TRUST COMPANY OF NEW YORK and BANCAMERICA
SECURITIES, INC., as co-syndication agents
(hereinafter, in such capacity, together with any
successor to either thereof in such capacity, the
"Co-Syndication Agents", with each reference herein
to the "Syndication Agent" in the singular meaning
MORGAN GUARANTY TRUST COMPANY OF NEW YORK), THE CHASE
MANHATTAN BANK, as documentation agent (hereinafter,
in such capacity, together with any successor thereto
in such capacity, the "Documentation Agent"), THE
BANK OF NOVA SCOTIA, as administrative agent
(hereinafter, in such capacity, together with any
successor thereto in such capacity, the
"Administrative Agent"), and ABN AMRO BANK N.V., THE
BANK OF NEW YORK, CANADIAN IMPERIAL BANK OF COMMERCE,
CITICORP USA, INC., CREDIT LYONNAIS NEW YORK BRANCH,
CREDIT SUISSE FIRST BOSTON, BANKBOSTON, N.A., THE
FUJI BANK, LIMITED, LOS ANGELES AGENCY, THE
INDUSTRIAL BANK OF JAPAN, LIMITED, LOS ANGELES
AGENCY, NATIONSBANK OF TEXAS, N.A., ROYAL BANK OF
CANADA, TORONTO DOMINION (TEXAS), INC. and UBS AG, as
co-agents (hereinafter, in such capacity, the
"Co-Agents").
A. Reference is made to the Credit Agreement dated as of March
20, 1997 (as amended from time to time, the "Credit Agreement"), among the
Company, the Banks, the Co-Syndication Agents, the Documentation Agent, the
Administrative Agent and the Co-Agents. Capitalized terms used but not otherwise
defined herein have the meanings assigned to them in the Credit Agreement.
B. The Company has requested that the Banks amend certain
provisions of the Credit Agreement. The Banks are willing to do so, subject to
the terms and conditions of this Amendment.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment to Section 1.01. Section 1.01 of the
Credit Agreement is hereby amended by inserting in the appropriate alphabetical
order the following definitions:
"FACILITY FEE STEPUP" has the meaning assigned to that term in
Section 2.08(b) hereof.
"MARGIN STEPUP" has the meaning assigned to that term in
Section 3.01(f) hereof.
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"SECOND AMENDMENT EFFECTIVE DATE" means March 15, 1999;
PROVIDED, THAT the conditions set forth in Section 14 of the Second Amendment to
this Agreement dated as of March 15, 1999 shall have been satisfied.
"UTILIZATION FEE" has the meaning assigned to that term in
Section 2.08(c) hereof.
SECTION 2. Amendment to Section 2.08. Section 2.08 of the
Credit Agreement is hereby amended by (a) changing the heading to such Section
to read "SECTION 2.08. FACILITY FEE; UTILIZATION FEE", (b) adding "(a)"
immediately following such heading and (c) adding new paragraphs (b) and (c)
that read in their entirety as follows:
"(b) The Company agrees to pay to each Bank, through the
Administrative Agent, on each March 31, June 30, September 30 and December 31
(the first such payment to be made on March 31, 1999) and on the date on which
the Revolving Credit Commitment of such Bank shall be terminated or the Maturity
Date, whichever shall first occur, in immediately available funds, a facility
fee surcharge (the "FACILITY FEE STEPUP") at a rate per annum (computed on the
basis of the actual number of days elapsed in a year of 365 or 366 days, as the
case may be) equal to the amounts set forth below based upon the ratings
applicable on such date to Index Debt on the average daily amount of the
Revolving Credit Commitment of such Bank, whether used or unused, during the
Calendar Quarter (or shorter period ending on March 31, 1999 or the Maturity
Date, as the case may be) then ended; PROVIDED, HOWEVER, that the amount payable
by the Company under this paragraph shall be reduced by any amounts paid on
account of the Facility Fee Stepup pursuant to Section 4.01 hereof:
STEPUP
------
LEVEL 1
A- or better by S&P
A3 or better by Moody's .0200%
LEVEL 2
BBB+ by S&P
Baa1 by Moody's .0350%
LEVEL 3
BBB by S&P
Baa2 by Moody's .0400%
LEVEL 4
BBB- by S&P
Baa3 by Moody's .0400%
LEVEL 5
BB+ or below by S&P
Ba1 or below by Moody's .0500%
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For purposes hereof, (i) if the ratings established (or deemed to have
been established, as provided in clause (ii) below) by Moody's and S&P
shall fall within different Levels, the rating in the inferior Level
shall be disregarded, unless one of the ratings is below Level 4, in
which case the Facility Fee Stepup will be based on the inferior of the
two Levels, (ii) if Moody's or S&P shall not have in effect a rating
for Index Debt (other than (a) because such rating agency shall no
longer be in the business of rating corporate debt obligations or (b)
as a result of a change in the rating system of Moody's or S&P), then
such rating agency will be deemed to have established a rating for
Index Debt in Level 5 and (iii) if any rating established (or deemed to
have been established, as provided in clause (ii) above) by Moody's or
S&P shall be changed (other than as a result of a change in the rating
system of Moody's or S&P), such change shall be effective as of the
date on which it is first publicly announced by the applicable rating
agency. Each change in the Facility Fee Stepup shall apply during the
period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such
change. If the rating system of Moody's or S&P shall change, or if
either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Company and the Banks (acting through
the Syndication Agent) shall negotiate in good faith to amend the
references to specific ratings in this definition to reflect such
changed rating system or the non-availability of ratings from such
rating agency. The Facility Fee Stepup shall commence on the Second
Amendment Effective Date.
(c) For any day on or after the Second Amendment Effective
Date on which the outstanding principal amount of Loans shall be (i)
equal to or greater than 33% but less than 66% of the Total Commitment
(or, following the date on which the Commitments terminate, equal to or
greater than 33% but less than 66% of the Total Commitment immediately
prior to such termination) or (ii) equal to or greater than 66% of the
Total Commitment (or, following the date on which the Commitments
terminate, equal to or greater than 66% of the Total Commitment
immediately prior to such termination) the Company agrees to pay to the
Administrative Agent for the account of each Bank a utilization fee
(such utilization fee payable pursuant to clause (i) or (ii) above, a
"UTILIZATION FEE") equal to the rate per annum applicable to such Loans
on such date plus (x) 0.125% in the case of clause (i) and (y) 0.25% if
any of Levels I through IV is applicable and 0.375% if Level V is
applicable in the case of clause (ii).
The Utilization Fees, if any, in respect of any fiscal quarter
shall be payable in arrears on each March 31, June 30, September 30 and
December 31 and on the date on which the Revolving Credit Commitments
shall be terminated or the Maturity Date, whichever shall first occur,
in immediately available funds; PROVIDED, HOWEVER, that the amount
payable by the Company under this paragraph shall be reduced by any
amounts paid on account of the Utilization Fees pursuant to Section
4.01 hereof. All Utilization Fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day)."
SECTION 3. Amendment to Section 3.01 Section 3.01 of the
Credit Agreement is hereby amended by (a) relettering paragraph (f) thereof as
paragraph (g) and (b) adding a new paragraph (f) that reads in its entirety as
follows:
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"(f) Subject to the provisions of Section 3.02 hereof, each
Eurodollar Loan, each Certificate of Deposit Loan and each Term Federal
Funds Loan, in any case outstanding on or after the Second Amendment
Effective Date shall be subject to a margin surcharge (the "MARGIN
STEPUP") on any date in an amount equal to the rate per annum (computed
on the basis of the actual number of days elapsed over a year of 360
days) equal to the amount set forth below based upon the ratings
applicable on such date to Index Debt:
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5
S&P A- or better BBB+ BBB BBB- BB+ or below
Moody's A3 or better Baa1 Baa2 Baa3 Ba1 or below
Margin Stepup .2300% .3150% .3850% .4350% .6750%
For purposes hereof, (i) if the ratings established (or deemed to have
been established, as provided in clause (ii) below) by Moody's and S&P
shall fall within different Levels, the rating in the inferior Level
shall be disregarded, unless one of the ratings is below Level 4, in
which case the Margin Stepup will be based on the inferior of the two
Levels, (ii) if Moody's or S&P shall not have in effect a rating for
Index Debt (other than (a) because such rating agency shall no longer
be in the business of rating corporate debt obligations or (b) as a
result of a change in the rating system of Moody's or S&P), then such
rating agency will be deemed to have established a rating for Index
Debt in Level 5 and (iii) if any rating established (or deemed to have
been established, as provided in clause (ii) above) by Moody's or S&P
shall be changed (other than as a result of a change in the rating
system of Moody's or S&P), such change shall be effective as of the
date on which it is first publicly announced by the applicable rating
agency. Each change in the Margin Stepup shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If
the rating system of Moody's or S&P shall change, or if either such
rating agency shall cease to be in the business of rating corporate
debt obligations, the Company and the Banks (acting through the
Syndication Agent) shall negotiate in good faith to amend the
references to specific ratings in this definition to reflect such
changed rating system or the nonavailability of ratings from such
rating agency. The Margin Stepup on each Eurodollar Loan, Certificate
of Deposit Loan and Term Federal Funds Loan shall accrue from and
including the first day of the Interest Period with respect to such
Loan to but excluding the last day of such Interest Period."
SECTION 4. Amendment to Section 3.02. Section 3.02 of the
Credit Agreement is hereby amended by adding the words "and any applicable
Margin Stepup" immediately following the words "(ii) the Applicable Margin" in
the thirteenth line thereof.
SECTION 5. Amendment to Section 4.01. Section 4.01 of the
Credit Agreement is hereby amended by (a) adding the words "and the Facility Fee
Stepup, in each case" immediately following the words "Facility Fees" in the
first sentence thereof and (b) adding the words ", Facility Fee Stepup and
Utilization Fees" immediately following the words "Facility Fees" in the third
sentence.
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5
SECTION 6. Amendment to Section 6.01(h). Section 6.01(h) of
the Credit Agreement is hereby amended by deleting the words "$2,600,000,000 at
all times" and replacing it with "(i) $2,400,000,000 at all times from the
Second Amendment Effective Date through and including December 30, 2000 and (ii)
$2,600,000,000 at all times thereafter".
SECTION 7. Amendment to Section 6.02(c). Section 6.02(c) of
the Credit Agreement is hereby amended by deleting the ratio "2.6 to 1.0" and
replacing it with "(i) 3.0 to 1.0 on any date on and after the Second Amendment
Effective Date through and including December 30, 2000 and (ii) 2.6 to 1.0 on
any date thereafter".
SECTION 8. Amendment to Section 8.01(a). Section 8.01(a) of
the Credit Agreement is hereby amended by adding the words "or in respect of any
Margin Stepup, any Facility Fee Stepup or the Utilization Fee" immediately
following the words "Facility Fee".
SECTION 9. Amendment to Section 10.06(c). Section 10.06(c) of
the Credit Agreement is hereby amended by deleting each reference to
"$40,000,000" and replacing it with "$32,000,000".
SECTION 10. Amendment to Exhibit G. Exhibit G to the Credit
Agreement is hereby amended by adding the words "Facility Fee Stepups and
Utilization Fees" immediately following the words "Facility Fees," in numbered
paragraph 1 thereof.
SECTION 11. Reduction of Total Commitment. The parties hereto
acknowledge that, pursuant to Section 4.01 of the Credit Agreement, the Company
has notified the Administrative Agent that the Total Commitment shall be
permanently reduced from $2,500,000,000 to $2,000,000,000, and that such
reduction will take effect on the Second Amendment Effective Date.
SECTION 12. Amendment Fee. The Company agrees to pay each Bank
that executes this Amendment on or prior to March 12, 1999 an amendment fee in
an amount equal to 0.05% of such Bank's Commitment, after giving effect to the
reduction in the Total Commitment described in Section 11 of this Amendment.
SECTION 13. Representations and Warranties. The Company
represents and warrants to the Banks, the Agents and the Co-Agents as follows:
(a) The execution and delivery by the Company of this
Amendment, the performance by the Company of its obligations under each
of this Amendment and the Credit Agreement, as amended by this
Amendment, and the Borrowings by the Company in the manner and for the
purpose contemplated by each of this Amendment and the Credit
Agreement, as amended by this Amendment, have been duly authorized by
all necessary corporate action (including any necessary stockholder
action) on the part of the Company, and do not and will not (i) violate
any provision of any law, rule or regulation (including, without
limitation, Regulation U and Regulation X) presently in effect having
applicability to the Company (or any Specified Subsidiary), or of any
order, writ, judgment, decree, determination or award (which is,
individually or in the aggregate, material to the consolidated
financial condition, business or operations of the Company and its
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6
Consolidated Subsidiaries) presently in effect having applicability to
the Company (or any Specified Subsidiary) or of the charter or by-laws
of the Company (or any Specified Subsidiary), or (ii) subject to the
Company's compliance with any applicable covenants pertaining to its
incurrence of unsecured indebtedness, result in a breach of or
constitute a default under any indenture or loan or credit agreement,
or result in a breach of or constitute a default under any other
agreement or instrument (which is, individually or in the aggregate,
material to the consolidated financial condition, business or
operations of the Company and its Consolidated Subsidiaries), to which
the Company or any Specified Subsidiary is a party or by which the
Company or any Specified Subsidiary or its respective properties may be
bound or affected, or (iii) result in, or require, the creation or
imposition of any Lien of any nature upon or with respect to any of the
properties now owned or hereafter acquired by the Company (other than
any right of setoff or banker's lien or attachment that any Bank or
other holder of a Note may have under applicable law), and the Company
is not in default under or in violation of its charter or by-laws.
(b) Each of this Amendment and the Credit Agreement, as
amended by this Amendment, constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its respective terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive
relief (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
SECTION 14. Conditions to Effectiveness. This Amendment shall
become effective as of the date first above written upon receipt by the
Syndication Agent of duly executed counterparts hereof which, when taken
together, bear the authorized signatures of the Company and the Required Banks.
SECTION 15. GOVERNING LAW; Severability; Execution in
Counterparts. (a) THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW.
(b) Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
(c) This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same Amendment. Delivery of an executed signature page to this Amendment
by facsimile shall be as effective as delivery of a manually signed counterpart
of this Amendment.
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7
SECTION 16. Expenses. The Company agrees to reimburse the
Syndication Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Moore, counsel for the Syndication Agent.
SECTION 17. Terms and Conditions. Except as specifically
modified herein, all other terms and conditions of the Credit Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective duly authorized officers as of
the date first above written.
OCCIDENTAL PETROLEUM CORPORATION,
by
/s/ John R. Zaylor
------------------------------------
Name: John R. Zaylor
Title: Senior Assistant Treasurer
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, in its individual capacity and as
Syndication Agent,
by
/s/ Diana H. Imhof
------------------------------------
Name: Diana H. Imhof
Title: Vice President
ABN AMRO BANK N.V.,
by
/s/ Paul K. Stimpfl
------------------------------------
Name: Paul K. Stimpfl
Title: Group Vice President
by
/s/ Shikha Rehman
------------------------------------
Name: Shikha Rehman
Title: Vice President
ARAB BANK PLC,
by
/s/ Backer Ali
------------------------------------
Name: Backer Ali
Title: Vice President and Controller
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AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED,
by
------------------------------------
Name:
Title:
BANCA DI ROMA SPA,
by
/s/ Thomas C. Woodruff
------------------------------------
Name: Thomas C. Woodruff (97969)
Title: Vice President
by
/s/ Francesco Barolo
------------------------------------
Name: Francesco Barolo (20538)
Title: Senior Vice President and
Manager
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
by
/s/ Claire M. Liu
------------------------------------
Name: Claire M. Liu
Title: Managing Director
BANKBOSTON, N.A.,
by
/s/ Sarah P. Z. Dwyer
------------------------------------
Name: Sarah P. Z. Dwyer
Title: Vice President
BANK OF MONTREAL,
by
/s/ Cahal B. Carmody
------------------------------------
Name: Cahal B. Carmody
Title: Director
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THE BANK OF NOVA SCOTIA,
by
/s/ M. Van Otterloo
------------------------------------
Name: M. Van Otterloo
Title: Senior Relationship Manager
THE BANK OF NEW YORK,
by
/s/ Steven Kalachman
------------------------------------
Name: Steven Kalachman
Title: Vice President
BANQUE NATIONALE DE PARIS,
by
/s/ Mitchell M. Ozawa
------------------------------------
Name: Mitchell M. Ozawa
Title: Vice President
by
/s/ Marc T. Schaefer
------------------------------------
Name: Marc T. Schaefer
Title: Assistant Vice President
BBL INTERNATIONAL (U.K.) LIMITED,
by
------------------------------------
Name:
Title:
by
------------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE,
by
/s/ Roger Colden
------------------------------------
Name: Roger Colden
Title: Authorized Signatory
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THE CHASE MANHATTAN BANK,
by
/s/ Beth Lawrence
------------------------------------
Name: Beth Lawrence
Title: Vice President
CITICORP USA, INC.,
by
/s/ Marjorie Futornick
------------------------------------
Name: Marjorie Futornick
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ Pascal Poupelle
------------------------------------
Name: Pascal Poupelle
Title: Executive Vice President
CREDIT SUISSE FIRST BOSTON,
by
/s/ Douglas E. Maher
------------------------------------
Name: Douglas E. Maher
Title: Vice President
by
/s/ J. Scott Karro
------------------------------------
Name: J. Scott Karro
Title: Associate
DRESDNER BANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH,
by
/s/ Michael E. Higgins
------------------------------------
Name: Michael E. Higgins
Title: Vice President
by
/s/ Henry J. Karsch, Jr.
------------------------------------
Name: Henry J. Karsch, Jr.
Title: Assistant Treasurer
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THE FUJI BANK, LIMITED, LOS ANGELES
AGENCY,
by
/s/ Masahito Fukuda
------------------------------------
Name: Masahito Fukuda
Title: Joint General Manager
GULF INTERNATIONAL BANK B.S.C.,
by
/s/ Issa N. Baconi
------------------------------------
Name: Issa N. Baconi
Title: SVP and Branch Manager
by
/s/ William B. Shephard
------------------------------------
Name: William B. Shephard
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
LOS ANGELES AGENCY,
by
/s/ Stephen Arce
------------------------------------
Name: Stephen Arce
Title: Vice President
KBC BANK N.V.,
by
/s/ Robert Snauffer
------------------------------------
Name: Robert Snauffer
Title: First Vice President
by
/s/ Marcel Claes
------------------------------------
Name: Marcel Claes
Title: Deputy General Manager
MELLON BANK, N.A.,
by
/s/ John S. McCabe
------------------------------------
Name: John S. McCabe
Title: Senior Vice President
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NATIONAL WESTMINSTER BANK PLC, NEW
YORK BRANCH AND NASSAU BRANCH,
by
/s/ Patricia J. Dundee
------------------------------------
Name: Patricia J. Dundee
Title: Senior Vice President
NATIONSBANK, N.A., Successor by Merger to
NATIONSBANK OF TEXAS, N.A.,
by
/s/ Claire M. Liu
------------------------------------
Name: Claire M. Liu
Title: Managing Director
ROYAL BANK OF CANADA,
by
/s/ Andrew C. Williamson
------------------------------------
Name: Andrew C. Williamson
Title: Senior Manager
THE SAKURA BANK, LIMITED,
by
/s/ Masayuki Kobayashi
------------------------------------
Name: Masayuki Kobayashi
Title: Joint General Manager
STANDARD CHARTERED BANK,
by
/s/ Sylvia D. Rivera
------------------------------------
Name: Sylvia D. Rivera
Title: AVP
by
/s/ M. Machado-Schammel
------------------------------------
Name: M. Machado-Schammel
Title: SVP
TORONTO DOMINION (TEXAS), INC.,
by
/s/ Carol Brandt
------------------------------------
Name: Carol Brandt
Title: Vice President
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UBS AG, (as successor by merger to Union
Bank of Switzerland), by New York Branch,
by
/s/ Paul R. Morrison
------------------------------------
Name: Paul R. Morrison
Title: Director
by
/s/ Andrew N. Taylor
------------------------------------
Name: Andrew N. Taylor
Title: Associate Director
UNION BANK OF CALIFORNIA, N.A.,
by
/s/ Dustin Gaspari
------------------------------------
Name: Dustin Gaspari
Title: Assistant Vice President
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