EXHIBIT 4.3(a)
AMENDED AND RESTATED CREDIT AGREEMENT dated as of November
25, 1997, as amended and restated February 5, 1999, among
EQUISTAR CHEMICALS, LP, a Delaware limited partnership;
MILLENNIUM AMERICA INC., a Delaware corporation, as Guarantor;
the Lenders party thereto; BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION as Servicing Agent, Documentation Agent and
Administrative Agent; and THE CHASE MANHATTAN BANK, as
Syndication Agent and Administrative Agent.
WHEREAS, the Borrower (such term and each other capitalized term used
but not defined herein having the meaning assigned to it in the Credit Agreement
as amended and restated hereby, the "Amendment and Restatement"), the Lenders,
BofA and Chase are parties to the Credit Agreement dated as of November 25, 1997
(the "Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders amend and restate
the Credit Agreement; and
WHEREAS, the undersigned Lenders are willing, on the terms and subject
to the conditions set forth herein, to approve such Amendment and Restatement;
NOW, THEREFORE, in consideration of these premises, the Borrower,
Millennium America Inc. and the undersigned Lenders hereby agree as follows:
SECTION 1. Amendments. Effective as of the Amendment and Restatement
Effective Date (as defined in Section 3 hereof), the Credit Agreement is hereby
amended and restated in its current form with the following amendments:
(a) The following definitions are added to Section 1.01 of the Credit
Agreement in their appropriate alphabetical positions:
"Assumed Occidental Liabilities" shall mean amounts due under the
Lease Intended for Security, Corpus Christi Ethylene Cracking Facility,
dated December 18, 1991, among Oxy Petrochemicals Inc., as assignee of
Occidental Chemical Corporation, as Lessee, the institutions listed on the
Schedule I thereto, as Lessors, Norwest Bank Minnesota, N.A., as Agent and
Chemical Bank and the Bank of Nova Scotia, as Information Agents, as
amended and supplemented from time to time.
"Equistar GP" shall mean any general partner of the Borrower.
"Occidental Asset Contribution Agreement" means the Agreement and
Plan of Merger and Asset Contribution dated as of May 15, 1998, among
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Occidental GP, Occidental LP1, Occidental LP2, Oxy Petrochemicals Inc.
and the Borrower.
(b) The definition of "Applicable Percentage" in Section 1.01 of the
Credit Agreement is hereby amended by (i) replacing the table contained therein
with the following table:
Facility
Index LIBOR/NIBOR Fee
Ratings Spread Percentage
------- ----------- ----------
Category 1 .285% .090%
A-/A3 or higher
Category 2 .375% .125%
BBB+/Baa1
Category 3 .475% .150%
BBB/Baa2
Category 4 .675% .200%
BBB-/Baa3
Category 5 .775% .225%
BBB-/Ba1 or BB+/Baa3
Category 6 1.000% .250%
BB+/Ba1
Category 7 1.200% .300%
BB/Ba2 or lower
- --------------------------------------------------------
(ii) replacing the number "6" at the end of clause (i) thereof with the number
"7" and (iii) inserting immediately before the semicolon at the end of clause
(ii) thereof the following: "(except that for purposes of this clause (ii),
Category 5 shall be disregarded in determining the number of Categories by which
the Index Ratings differ)".
(c) The definition of "Change in Control" in Section 1.01 of the
Credit Agreement is hereby amended by replacing the definition in its entirety
with the following:
A "Change in Control" shall occur if at any time Lyondell,
Millennium and Occidental cease to own in the aggregate, through ownership
by one or more of them, partnership interests representing at least a
majority of the total equity interest and voting power of the Borrower.
(d) The second proviso in the definition of "EBITDA" in Section 1.01
of the Credit Agreement is hereby amended to read as follows: "provided
further, that after December 31, 1998, such addition may only be made in the
calculation of EBITDA for each of two fiscal quarters during the remaining term
of this Agreement and any such addition may only be made for one fiscal quarter
during any four consecutive fiscal quarters."
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(e) The Interest Coverage Ratio in Section 6.05 of the Credit
Agreement is hereby amended by inserting at the end thereof, the following:
"except that for any period of four consecutive fiscal quarters ending on any
date set forth below, the Interest Coverage Ratio shall not be less than the
ratio set forth below opposite such date:
Date Ratio
- ---- ------
March 31, 1999. . . . . . . . . . . . . . . .2.50 to 1.0
June 30, 1999 . . . . . . . . . . . . . . . .2.25 to 1.0
September 30, 1999. . . . . . . . . . . . . .2.00 to 1.0
December 31, 1999 . . . . . . . . . . . . . .2.00 to 1.0
March 31, 2000. . . . . . . . . . . . . . . .2.15 to 1.0
June 30, 2000 . . . . . . . . . . . . . . . .2.25 to 1.0
September 30, 2000. . . . . . . . . . . . . .2.50 to 1.0
December 31, 2000 . . . . . . . . . . . . . .2.75 to 1.0
(f) Section 10.15(a) of the Credit Agreement is hereby amended by
replacing "Lyondell GP or Millennium GP, or any of their Affiliates" with "any
Equistar GP or any of its Affiliates"
(g) Section 10.15(b) of the Credit Agreement is hereby amended by
replacing all the text immediately after the first sentence thereof with the
following: "The Occidental Asset Contribution Agreement contains provisions
under which the Borrower would be obligated to reimburse Occidental for any
amounts paid by Occidental or its Affiliates on account of the fixed rent,
purchase obligation and variable rent on the Assumed Occidental Liabilities.
The Lenders acknowledge and agree that the obligations of the Borrower in
respect of any such reimbursement obligations will rank pari passu with the
Obligations"
SECTION 3. Effectiveness. This Amendment and Restatement shall
become effective as of the date (the "Amendment and Restatement Effective Date")
when the Administrative Agents (or their counsel) shall have received copies
hereof that, when taken together, bear the signatures of the Borrower and the
Required Lenders.
SECTION 4. Amendment and Restatement Fee. The Borrower shall pay to
the Administrative Agents on the Amendment and Restatement Effective Date a fee
as separately agreed to for the account of each Lender executing this Amendment
and Restatement.
SECTION 5. Applicable Law. This Amendment and Restatement shall be
construed in accordance with and governed by the law of the State of New York.
SECTION 6. No Other Amendments. Except as expressly set forth
herein, this Amendment and Restatement shall not by implication or otherwise
limit, impair, constitute a waiver of, or otherwise affect the rights and
remedies of any party under, the Credit Agreement, nor alter, modify, amend or
in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement, all of which are ratified and
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affirmed in all respects and shall continue in full force and effect. This
Amendment and Restatement shall apply and be effective only with respect to the
provisions of the Credit Agreement specifically referred to herein.
SECTION 7. Counterparts. This Amendment and Restatement may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute but one
contract. Delivery of an executed counterpart of a signature page of this
Amendment and Restatement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Amendment and Restatement.
SECTION 8. Headings. Section headings used herein are for
convenience of reference only, are not part of this Amendment and Restatement
and are not to affect the construction of, or to be taken into consideration in
interpreting, this Amendment and Restatement.
SECTION 9. Expenses. The Borrower shall reimburse the Administrative
Agents for their reasonable out-of-pocket expenses incurred in connection with
this Amendment and Restatement, including the reasonable fees and expenses of
Cravath, Swaine & Moore, counsel for the Administrative Agents.
IN WITNESS WHEREOF, the Borrower, Millennium America Inc. and the
undersigned Lenders have caused this Amendment and Restatement to be duly
executed by their duly authorized officers, all as of the date first above
written.
EQUISTAR CHEMICALS, LP
by /s/ Eugene R. Allspach
----------------------------
Name: Eugene R. Allspach
Title: President and Chief
Operating Officer
MILLENNIUM AMERICA, INC.
by /s/ Christine Wubbolding
----------------------------
Name: Christine Wubbolding
Title: Vice President and
Treasurer
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
individually and as
Administrative Agent, Documentation
Agent and Servicing Agent,
by /s/ Michael J. Dillon
----------------------------
Name: Michael J. Dillon
Title: Managing Director
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent and
Syndication Agent,
by /s/ Mary Elizabeth Swerz
----------------------------
Name: Mary Elizabeth Swerz
Title: Vice President
ABN AMRO BANK N.V.,
by /s/ Collis G. Sanders
----------------------------
Name: Collis G. Sanders
Title:Senior Vice President
& Managing Director
by /s/ Gordon D. Chang
----------------------------
Name: Gordon D. Chang
Title: Vice President
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BANK AUSTRIA AG,
by /s/ R. Tenhave
----------------------------
Name: R. Tenhave
Title: Senior Vice President
/s/ Karen L. Jill
----------------------------
Name: Karen L. Jill
Title: Assistant Vice President
THE BANK OF NEW YORK,
by /s/ Raymond J. Palmer
---------------------------
Name: Raymond J. Palmer
Title: Vice President
THE BANK OF NOVA SCOTIA,
by /s/ F. C. H. Ashby
-------------------------
Name: F. C. H. Ashby
Title: Senior Manger Loan
Operations
THE BANK OF TOKYO-MITSUBISHI,
by /s/ Ichiro Otani
------------------------
Name: Ichiro Otani
Title: Deputy General Manager
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BANQUE NATIONALE DE PARIS,
by /s/ John Stacy
-------------------------
Name: John Stacy
Title: Vice President
CIBC INC.,
by CIBC OPPENHEIMER CORP,
as Agent,
by /s/ Ihor Zaluckyj
-------------------------
Name: Ihor Zaluckyj
Title: Executive Director
COMMERZBANK AG,
by /s/ W. David Suttles
-------------------------
Name: W. David Suttles
Title: Vice President
by /s/ D. L. Ward
-------------------------
Name: D. L. Ward
Title: Assistant Treasurer
CREDIT LYONNAIS NEW YORK BRANCH,
by /s/ Phillippe Soustra
-------------------------
Name: Phillippe Soustra
Title: Senior Vice President
8
THE DAI-ICHI-KANGO BANK, LTD.,
by /s/ Timothy White
-------------------------
Name: Timothy White
Title: Senior Vice President
DEUTSCHE GENOSSENSCHAFTS BANK AG,
by /s/ Mark Connelly
-------------------------
Name: Mark Connelly
Title: Vice President
by /s/ Elizabeth L. Ryan
------------------------
Name: Elizabeth L. Ryan
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO,
by /s/ Dixon P. Schultz
------------------------
Name: Dixon P. Schultz
Title: First Vice President
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THE INDUSTRIAL BANK OF JAPAN,
LTD.,
by /s/ Mike Oakes
------------------------
Name: Mike Oakes
Title: Senior Vice President
Houston Office
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
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED,
by /s/ Sadao Muraoko
--------------------------
Name: Sadao Muraoko
Title: Head of Southwest Region
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MARINE MIDLAND BANK,
by /s/ George Linhart
--------------------------
Name: George Linhart
Title: Relationship Manager
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
by /s/ Anna Marie Fallon
----------------------------
Name: Anna Marie Fallon
Title: Vice President
NATIONSBANK, N.A.,
by /s/ Michael J. Dillon
----------------------------
Name: Michael J. Dillon
Title: Managing Director
PNC BANK,
by /s/ Marc T. Kennedy
---------------------------
Name: Marc T. Kennedy
Title: Vice President
THE SANWA BANK LIMITED,
by /s/ Jean-Michel Fatovic
----------------------------
Name: Jean-Michel Fatovic
Title: Vice President
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SOCIETE GENERALE,
by /s/ Karen M. Sager
--------------------------
Name: Karen M. Sager
Title: Vice President
THE SUMITOMO BANK, LTD.,
by /s/ J. Bruce Meredith
----------------------------
Name: J. Bruce Meredith
Title: Senior Vice President
SUNTRUST BANK, ATLANTA,
by /s/ M. Anne Ford
------------------------------
Name: M. Anne Ford
Title: Corporate Banking Officer
by /s/ Steven J. Newby
------------------------------
Name: Steven J. Newby
Title: Corporate Banking Officer
THE TORONTO-DOMINION BANK,
by /s/ Sonja R. Jordan
---------------------------
Name: Sonja R. Jordan
Title: Manager, Credit
Administration
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
by /s/ Felicia LaForgia
---------------------------
Name: Felicia LaForgia
Title: Vice President
by /s/ Thomas Lee
--------------------------
Name: Thomas Lee
Title: Associate