First Amendment to Amended and Restated Three-Year Credit Agreement among Chevron Phillips Chemical Company LLC, Chevron Phillips Chemical Company LP, and Lenders

Summary

This amendment updates the terms of a three-year credit agreement between Chevron Phillips Chemical Company LLC, Chevron Phillips Chemical Company LP, and a group of lenders led by Bank of America, N.A. The changes remove references to a previous 364-day credit agreement, revise certain definitions and provisions, and clarify the process for reducing or terminating commitments. The amendment is effective upon execution by the required parties and confirmation of a new 364-day credit agreement. The borrowers also confirm their financial statements and that no default exists as of the amendment date.

EX-4.1 3 h89237ex4-1.txt 1ST AMEND.TO THREE-YEAR CREDIT AGREEMENT 1 EXHIBIT 4.1 FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "AMENDMENT") is entered into as of July 2, 2001 (the "EFFECTIVE DATE"), among CHEVRON PHILLIPS CHEMICAL COMPANY LLC, a Delaware limited liability company (the "LLC"), CHEVRON PHILLIPS CHEMICAL COMPANY LP, a Delaware limited partnership wholly-owned, indirectly, by the LLC (the "LP"; and together with the LLC, the "BORROWERS"), BANK OF AMERICA, N.A., as administrative agent (the "ADMINISTRATIVE AGENT"), THE CHASE MANHATTAN BANK and ABN AMRO BANK, N.V., as co-syndication agents (the "CO-SYNDICATION AGENTS"), NATIONAL WESTMINSTER BANK PLC, as documentation agent (the "DOCUMENTATION AGENT"), and certain lenders from time to time party thereto (collectively, the "LENDERS"). Reference is made to that certain Amended and Restated Three-Year Credit Agreement dated as of July 3, 2000, among the Borrowers, the Administrative Agent, the Co-Syndication Agents, the Documentation Agent, and the Lenders (the "THREE-YEAR CREDIT AGREEMENT"). Unless otherwise defined in this Amendment, capitalized terms used herein shall have the meaning set forth in the Three-Year Credit Agreement; all Article, Section, and Schedule references herein are to Articles, Sections, and Schedules in the Three-Year Credit Agreement; and all Paragraph references herein are to Paragraphs in this Amendment. RECITALS A. The Borrowers, concurrently with the execution of the Three-Year Credit Agreement, entered into that certain Amended and Restated 364-Day Credit Agreement dated as of July 3, 2000, with Bank of America, N.A., as administrative agent, The Chase Manhattan Bank and ABN AMRO Bank, N.V., as co-syndication agents, National Westminster Bank Plc, as documentation agent, and certain lenders from time to time party thereto (the "ORIGINAL 364-DAY CREDIT AGREEMENT"). B. Concurrently herewith, the commitments of the lenders under the Original 364-Day Credit Agreement are being terminated and the Original 364-Day Credit Agreement is being replaced with a new 364-Day Credit Agreement among the Borrowers, Bank of America, N.A., as administrative agent, and certain lenders party thereto (the "NEW 364-DAY CREDIT AGREEMENT"). C. The Borrowers have requested that the Lenders amend certain provisions of the Three-Year Credit Agreement to delete all references to the Original 364-Day Credit Agreement, and, subject to the terms and conditions set forth herein, the Lenders are willing to agree to such amendments. Accordingly, for adequate and sufficient consideration, the parties hereto hereby agree as follows: PARAGRAPH 1 AMENDMENT. (a) The definition of "Commitment Utilization Percentage" set forth in SECTION 1.1 is hereby amended to read as follows: FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 2 "Commitment Utilization Percentage": on any day the percentage equivalent to a fraction (a) the numerator of which is the sum of the aggregate outstanding principal amount of the Loans, and (b) the denominator of which is the sum of the aggregate Commitments (or, on any day after termination of the Commitments pursuant to Section 7, the aggregate Commitments in effect immediately preceding such termination). (b) The definition of "364-Day Credit Agreement" set forth in SECTION 1.1 is hereby deleted in its entirety. (c) SECTION 1.2(e) is hereby deleted in its entirety. (d) SECTION 2.5(a) is hereby amended to read as follows: (a) The Borrowers shall have the right, upon not less than five Business Days' written notice to the Administrative Agent, to terminate the Commitments or, from time to time, to reduce the amount thereof; provided, that no such termination or reduction shall be permitted if, after giving effect thereto and to any prepayments of the Loans made on the effective date thereof, the then outstanding principal amount of the Loans would exceed the amount of the Commitments then in effect. Any such reduction shall be in an amount of $10,000,000, or a whole multiple of $5,000,000 in excess thereof, and shall reduce permanently the amount of such Commitments then in effect. (e) SECTION 2.6(c) is hereby deleted in its entirety. (f) Footnote 2 to the Pricing Grid, and each reference thereto in the Pricing Grid, is hereby deleted in its entirety. PARAGRAPH 2 EFFECTIVE DATE. This Amendment shall be effective on the Effective Date, subject to satisfaction of the following conditions on or before such date: the Administrative Agent shall have received (a) counterparts of this Amendment, executed by the Borrowers and the Required Lenders, and (b) evidence that the New 364-Day Credit Agreement has been executed by the Borrowers and Lenders party thereto and that the conditions to the effectiveness of the New 364-Day Credit Agreement set forth in SECTION 4.1 therein shall have been satisfied. PARAGRAPH 3 REPRESENTATIONS. As a material inducement to the Lenders to execute and deliver this Amendment, the Borrowers each represent and warrant to the Lenders (with the knowledge and intent that the Lenders are relying upon the same in entering into this Amendment) that as of the Effective Date of this Amendment and as of the date of execution of this Amendment, (a) all representations and warranties in the Three-Year Credit Agreement, save and except the representations and warranties stated in SECTION 3.5 thereof, are true and correct in all material respects as though made on the date hereof, and (b) no Event of Default or Default exists. PARAGRAPH 4 FINANCIAL STATEMENTS; NO MATERIAL CHANGE. (a) The consolidated balance sheets of Chevron Phillips Chemical Company LLC as of December 31, 2000, and as of March 31, 2001, and the related consolidated statements of operations, of members' capital and of cash flows for the period July 1, 2000 (inception) through December 31, 2000, and for the period January 1, 2001, through March 31, 2001, copies of which have been presented to the Lenders, present fairly, in all material respects, the financial position of the Borrowers and their Subsidiaries, taken as a whole, at December 31, 2000 and March 31, 2001, respectively, and the results 2 FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 3 of their operations and their cash flows for the period July 1, 2000 (inception) through December 31, 2000, and January 1, 2001 through March 31, 2001, respectively, in conformity with GAAP. (b) Since March 31, 2001, as reflected in PARAGRAPH 4(a) above, there has been no material adverse change in the business, consolidated financial position or results of operations of the Borrowers and their Subsidiaries taken as a whole. PARAGRAPH 5 EXPENSES. The Borrowers, jointly and severally, shall pay all costs, fees, and expenses paid or incurred by the Administrative Agent incident to this Amendment, including, without limitation, the reasonable fees and expenses of the Administrative Agent's counsel in connection with the negotiation, preparation, delivery, and execution of this Amendment and any related documents. PARAGRAPH 6 MISCELLANEOUS. The provisions in SECTION 9 of the Three-Year Credit Agreement are incorporated in this Amendment by reference. Unless stated otherwise (a) the singular number includes the plural and vice versa and words of any gender include each other gender, in each case, as appropriate, (b) headings and captions may not be construed in interpreting provisions, (c) this Amendment must be construed, and its performance enforced, under New York law, (d) if any part of this Amendment is for any reason found to be unenforceable, all other portions of it nevertheless remain enforceable, and (e) this Amendment may be executed in any number of counterparts with the same effect as if all signatories had signed the same document, and all of those counterparts must be construed together to constitute the same document. PARAGRAPH 7 ENTIRE AGREEMENT. THIS AMENDMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THIS AMENDMENT AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. PARAGRAPH 8 PARTIES. This Amendment binds and inures to the benefit of the Borrowers, the Administrative Agent, the Co-Syndication Agents, the Documentation Agent, the Lenders, and their respective successors and assigns. PARAGRAPH 9 LIMITATIONS. Except as expressly modified hereby or by express written amendments thereof, the terms and provisions of the Three-Year Credit Agreement, and all other documents and instruments executed in connection therewith, are and shall remain in full force and effect. In the event of a conflict between the amendments set forth herein and any of the foregoing documents, the terms of such this Amendment shall be controlling. The parties hereto have executed this Amendment in multiple counterparts to be effective as of the Effective Date. REMAINDER OF PAGE INTENTIONALLY BLANK. SIGNATURE PAGES TO FOLLOW. 3 FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 4 CHEVRON PHILLIPS CHEMICAL COMPANY LLC, as a Borrower By: /s/ J.M. McKee ------------------------------------------- J.M. McKee Vice President and Treasurer CHEVRON PHILLIPS CHEMICAL COMPANY LP, as a Borrower By: /s/ J.M. McKee ------------------------------------------- J.M. McKee Vice President and Treasurer FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 5 BANK OF AMERICA, N.A., as Administrative Agent and a Lender By: /s/ Claire M. Liu ------------------------------------------- Claire M. Liu Managing Director FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 6 THE CHASE MANHATTAN BANK, as Co-Syndication Agent and a Lender By: /s/ Steve A. Nordaker -------------------------------------------------- Steve A. Nordaker Managing Director FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 7 ABN AMRO BANK N.V., as Co-Syndication Agent and a Lender By: /s/ Kevin P. Costello -------------------------------------------------- Kevin P. Costello Group Vice President By: /s/ Angela Noique -------------------------------------------------- Angela Noique Group Vice President FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 8 NATIONAL WESTMINSTER BANK PLC, as Documentation Agent and a Lender By: NATIONAL WESTMINSTER BANK PLC, NEW YORK BRANCH By: /s/ P. J. Dundee ------------------------------------------ Patricia J. Dundee Senior Vice President FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 9 THE BANK OF NEW YORK, as a Lender By: /s/ Raymond J. Palmer -------------------------------------------------- Raymond J. Palmer Vice President FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 10 BARCLAYS BANK PLC, as a Lender By: /s/ Douglas Bernegger -------------------------------------------------- Douglas Bernegger Director FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 11 BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH, as a Lender By: /s/ Hereward Drummond -------------------------------------------------- Hereward Drummond Senior Vice President By: /s/ James H. Boyle -------------------------------------------------- James H. Boyle Vice President FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 12 CITIBANK, N.A., as a Lender By: /s/ Carolyn A. Sheridan -------------------------------------------------- Carolyn A. Sheridan Managing Director FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 13 THE FUJI BANK, LIMITED, as a Lender By: /s/ Jacques Azagury -------------------------------------------------- Jacques Azagury Senior Vice President & Manager FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 14 THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW YORK BRANCH, as a Lender By: /s/ Michael N. Oakes -------------------------------------------------- Michael N. Oakes Senior Vice President, Houston Office FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 15 SUMITOMO MITSUI BANKING CORPORATION (successor to THE SUMITOMO BANK, LIMITED), as a Lender By: /s/ Peter R.C. Knight -------------------------------------------------- Peter R.C. Knight Senior Vice President FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 16 WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH, as a Lender By: /s/ Barry S. Wadler -------------------------------------------------- Barry S. Wadler Associate Director By: /s/ Lisa Walker -------------------------------------------------- Lisa Walker Associate Director FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 17 IntesaBci-New York Branch, as a Lender By: /s/ Charles Dougherty -------------------------------------------------- Charles Dougherty Vice-President By: /s/ Frank Maffei -------------------------------------------------- Frank Maffei Vice-President FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 18 BANCA NAZIONALE DEL LAVORO S.P.A., NEW YORK BRANCH, as a Lender By: /s/ Roberto Mancone -------------------------------------------------- Roberto Mancone Vice President By: /s/ Leonardo Valentini -------------------------------------------------- Leonardo Valentini First Vice President FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 19 THE BANK OF TOKYO-MITSUBISHI, LTD., as a Lender By: /s/ K. Glasscock -------------------------------------------------- K. Glasscock VP & Manager FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 20 BANK ONE, NA (Main Office - Chicago), as a Lender By: /s/ Daniel A. Davis -------------------------------------------------- Daniel A. Davis Vice President FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 21 BANCA DI ROMA - CHICAGO BRANCH, as a Lender By: /s/ Aurora Pensa -------------------------------------------------- Aurora Pensa Vice President By: /s/ Joyce Montgomery -------------------------------------------------- Joyce Montgomery Vice President FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 22 BANCA MONTE DEI PASCHI DI SIENA S.P.A., as a Lender By: /s/ Serge M. Sondak -------------------------------------------------- Serge M. Sondak First Vice President & Deputy G.M. By: /s/ Nicolas Kanaris -------------------------------------------------- Nicolas Kanaris Vice President FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 23 BANCO DI NAPOLI S.P.A., as a Lender By: /s/ Francesco Di Mario -------------------------------------------------- Francesco Di Mario First Vice President By: /s/ Arthur Kooper -------------------------------------------------- Arthur Kooper Assistant Vice President FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 24 SUNTRUST BANK, as a Lender By: /s/ Linda L. Stanley -------------------------------------------------- Linda L. Stanley Director FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT 25 RIYAD BANK, HOUSTON AGENCY, As a Lender By: /s/ Samir A. Haddad ---------------------------------------------- Samir A. Haddad EVP & Executive Manager By: /s/ Paul N. Travis ---------------------------------------------- Paul N. Travis Vice President & Head of Marketing FIRST AMENDMENT TO AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT