THIRD SUPPLEMENTAL INDENTURE dated as of December 6, 2007 among LYONDELL CHEMICAL COMPANY, as Company and THE BANK OF NEW YORK, as Trustee
Exhibit
4.11(c)
THIRD
SUPPLEMENTAL INDENTURE
dated
as
of December 6, 2007
among
LYONDELL
CHEMICAL COMPANY,
as
Company
and
THE
BANK
OF NEW YORK,
as
Trustee
__________________________
8.250
%
Senior Notes due 2016
THIS
THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”),
entered into as of December 6, 2007, among LYONDELL CHEMICAL COMPANY, a Delaware
corporation (the “Company”), and THE BANK OF NEW YORK, as
trustee (the “Trustee”).
RECITALS
WHEREAS,
the Company, the Subsidiary Guarantors party thereto and the Trustee entered
into the Indenture, dated as of September 20, 2006, (the
“Indenture”), relating to the Company’s 8.250 % Senior Notes
due 2016 (the “Notes”);
WHEREAS,
Section 9.02 of the Indenture provides that, subject to certain conditions,
Lyondell, the Trustee and any Subsidiary Guarantor may amend or supplement
the
Indenture with the written consent of the Holders of not less than a majority
in
aggregate principal amount of the Outstanding Notes; and
WHEREAS,
pursuant to Lyondell’s Offer to Purchase and Consent Solicitation Statement
dated November 20, 2007 (the “Offer to Purchase”), the consent of the Holders of
not less than a majority in aggregate principal amount of the Outstanding Notes
has been obtained to amend Sections 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10,
4.11, 4.14, 4.15, 4.16, 4.17, 4.19, 4.20, 4.21, 4.22, 4.23, 5.01 and 6.01 of
the
Indenture as set forth below.
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained and intending to be legally bound, the parties hereto hereby agree
as
follows:
AGREEMENT
SECTION
ONE
|
1.1
|
Capitalized
terms used herein and not otherwise defined herein have the respective
meanings assigned to such terms in the
Indenture.
|
|
1.2
|
The
Trustee makes no representations as to the validity or sufficiency
of this
Supplemental Indenture. The recital contained in the third paragraph
of
the recitals herein is deemed to be that of the
Company.
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SECTION
TWO
|
2.1
|
Section
4.04 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.2
|
Section
4.05 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.3
|
Section
4.06 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.4
|
Section
4.07 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.5
|
Section
4.08 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.6
|
Section
4.09 of the Indenture shall be deleted in its entirety as follows
and
replaced by the following:
|
[Intentionally
Omitted].
|
2.7
|
Section
4.10 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.8
|
Section
4.11 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.9
|
Section
4.14 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.10
|
Section
4.15 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.11
|
Section
4.16 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.12
|
Section
4.17 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.13
|
Section
4.19 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.14
|
Section
4.20 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.15
|
Section
4.21 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.16
|
Section
4.22 of the Indenture shall be amended to read in its entirety as
follows:
|
Section
4.22. Limitation on Issuance of
Guarantees by Restricted Subsidiaries.
(a) [Intentionally
Omitted].
(b) The
Subsidiary Guarantee of a Subsidiary Guarantor will be released:
(i) in
connection with any sale or other disposition of all or substantially all of
the
assets of such Subsidiary Guarantor (including by way of merger or
consolidation) to a Person that is not (either before or after giving effect
to
such transaction) the Company or a Restricted Subsidiary, if the sale or other
disposition complies with the applicable provisions of the
Indenture;
(ii) in
connection with any sale or other disposition of all of the Capital Stock of
such Subsidiary Guarantor to a Person that is not (either before or after giving
effect to such transaction) the Company or a Restricted Subsidiary, if the
sale
or other disposition complies with the applicable provisions of the
Indenture;
(iii) if
such
Subsidiary Guarantor is a Restricted subsidiary and the Company designates
such
Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the
applicable provisions of the Indenture;
(iv) upon
satisfaction of the conditions described under Section 13.02;
(v) upon
the
liquidation or dissolution of such Subsidiary Guarantor provided no Default
or
Event of Default has occurred or is continuing under the Indenture;
or
(vi) at
such
time as such Subsidiary Guarantor ceases to guarantee Indebtedness of the
Company or any other Subsidiary Guarantor (other than guarantees under the
Notes) in excess of the De Minimis Guaranteed Amount, except to the extent
all
such other guarantees were discharged or released by or as a result of payment
under such guarantees.
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2.17
|
Section
4.23 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
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2.18
|
Section
5.01 of the Indenture shall be amended to read in its entirety as
follows:
|
Section
5.01. Consolidation, Merger or Sale of Assets by the Company.
(a) The
Company may not consolidate or merge with or into (whether or not the Company
is
the surviving corporation), or sell, assign, transfer, convey or otherwise
dispose of all or substantially all its assets in one or more related
transactions, to another corporation, Person or entity unless:
(i) the
Company is the surviving corporation or the entity or the Person formed by
or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, conveyance or other disposition shall
have been made is a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia; and
(ii) the
corporation formed by or surviving any such consolidation or merger (if other
than the Company) or the corporation to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
Obligations of the Company under the Notes and the Indenture pursuant to a
supplemental indenture in form reasonably satisfactory to the
Trustee.
(iii) [Intentionally
Omitted].
(iv) [Intentionally
Omitted].
(b) The
Company will not lease all or substantially all its assets to another
Person.
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2.19
|
Section
6.01 of the Indenture shall be amended to read in its entirety as
follows:
|
|
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Section
6.01. Events of Default. Each of the following constitutes an “Event of
Default:”
|
(a) a
default
in the payment of interest on the Notes when due, which has continued for 30
days;
(b) a
default
in the payment when due of principal of or premium on, any Note when due at
its
Stated Maturity, upon optional redemption, upon required repurchase, upon
declaration or otherwise;
(c) the
failure by the Company to comply with its obligations under Article 5;
and
(d) [Intentionally
Omitted].
(e) [Intentionally
Omitted].
(f) [Intentionally
Omitted].
(g) a
court
having jurisdiction in the premises enters a decree or order for (i) relief
in
respect of the Company or any Significant Subsidiary in an involuntary case
under any applicable, bankruptcy, insolvency, or other similar law now or
hereafter in effect, (ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (iii) the winding up
or
liquidation of the Company or the affairs of the Company or any Significant
Subsidiary, and in each case, such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days.
(h) [Intentionally
Omitted].
(i) [Intentionally
Omitted].
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2.20
|
Deletion
of Certain Definitions. Notwithstanding any provision in the
Indenture to the contrary, the definition in the Indenture of each
capitalized term that occurs only within sections of the Indenture
that
are intentionally omitted pursuant to this Supplemental Indenture
(the
“Indenture Deleted Provisions”), as in effect prior to
the execution of this Supplemental Indenture, shall be of no further
force
or effect.
|
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2.21
|
Deletion
of Certain Cross-References. Notwithstanding any provision in
the Indenture to the contrary, each cross-reference to the Indenture
Deleted Provisions, as in effect prior to the execution of this
Supplemental Indenture, shall be of no further force or
effect.
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SECTION
THREE
The
Notes
include certain of the foregoing provisions from the Indenture. Upon the
operative date of the Supplemental Indenture, such provisions from the Notes
shall be deemed deleted or amended as applicable.
SECTION
FOUR
Notwithstanding
an earlier execution date, the provisions of this Supplemental Indenture shall
not become operative until the time and date upon which the Company notifies
the
tender agent for the Notes, X. X. Xxxx & Co., Inc., that more than 50% in
aggregate principal amount of the Outstanding Notes are accepted for purchase
pursuant to the terms of the Offer to Purchase.
SECTION
FIVE
This
Supplemental Indenture shall be governed by and construed in accordance with
the
internal laws of the State of New York.
SECTION
SIX
This
Supplemental Indenture may be signed in various counterparts which together
shall constitute one and the same instrument.
SECTION
SEVEN
This
Supplemental Indenture is an amendment to the Indenture. The
Indenture and this Supplemental Indenture shall henceforth be read
together.
**Remainder
of this page intentionally left blank.**
IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Supplemental Indenture or have caused this Supplemental Indenture to be duly
executed on their respective behalf by their respective officers thereunto
duly
authorized, as of the day and year first written above.
LYONDELL
CHEMICAL COMPANY, as
Company
By: /s/
Xxxxxxx X. Xxxx
Name: Xxxxxxx
X.
Xxxx
Title:
Vice
President, Controller
and Chief Accounting Officer
THE
BANK
OF NEW YORK, as Trustee
By: /s/
Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx
X.
Xxxxxxxxxx
Title: Vice
President
