FIRST SUPPLEMENTAL INDENTURE dated as of December 6, 2007 among EQUISTAR CHEMICALS, LP EQUISTAR FUNDING CORPORATION, as Issuers and THE BANK OF NEW YORK, as Trustee
Exhibit
4.10(b)
dated
as
of December 6, 2007
among
EQUISTAR
CHEMICALS, LP
EQUISTAR
FUNDING CORPORATION,
as
Issuers
and
THE
BANK
OF NEW YORK,
as
Trustee
__________________________
10.125%
Senior Notes due 2008
THIS
FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”),
entered into as of December 6, 2007, among Equistar Chemicals, LP, a Delaware
Limited Partnership (the “Company”), Equistar Funding Corporation, a Delaware
corporation (“Equistar Funding” and, together with the Company, the “Issuers”)
and THE BANK OF NEW YORK, as trustee (the
“Trustee”).
RECITALS
WHEREAS,
the Issuers and the Trustee entered into the Indenture, dated as of August
24,
2001 (the “Indenture”), relating to the Issuers 10.125% Senior
Notes due 2008 (the “Notes”);
WHEREAS,
Section 9.02 of the Indenture provides that, subject to certain conditions,
the
Issuers and the Trustee 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 the Issuers’ 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, 4.09, 4.10, 4.11,
4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.19, 4.20, 4.21, 4.23, 5.01, 5.03 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
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1.1
|
Capitalized
terms used herein and not otherwise defined herein have the respective
meanings assigned to such terms in the
Indenture.
|
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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
Issuers.
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SECTION
TWO
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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
4.09 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.6
|
Section
4.10 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.7
|
Section
4.11 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.8
|
Section
4.12 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.9
|
Section
4.13 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.10
|
Section
4.14 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.11
|
Section
4.15 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.12
|
Section
4.16 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.13
|
Section
4.17 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.14
|
Section
4.19 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.15
|
Section
4.20 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.16
|
Section
4.21 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
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:
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Section
5.01. Consolidation, Merger or Sale of Assets by the Company.
(a) The
Company may not consolidate with or merge into, or sell, assign, transfer,
convey or otherwise dispose of all or substantially all of its assets in one
or
more related transactions to, any Person, or permit any person to merge with
or
into it unless each of the following conditions is satisfied:
(i) Immediately
after giving effect to such transaction and any related incurrence of
Indebtedness or issuance of Disqualified Stock, no Default or Event of Default
shall have occurred and be continuing; and
(ii) Either
(A) the Company shall be the continuing Person, or (ii) the entity formed by
such consolidation or into which the Company is merged, or the Person to which
such properties and assets will have been conveyed or transferred, assumes
the
Company's obligation as to the due and punctual payment of the
principal of (and premium, if any, on) and interest, if any, on the Notes
and the performance and observance of every covenant to be performed by the
Company under the Indenture, the Notes and the Registration Rights Agreement;
any such entity will be organized under the laws of the United States, one
of
the States thereof or the District of Colombia.
(iii) [Intentionally
Omitted].
(iv) [Intentionally
Omitted].
(b) The
foregoing shall not prohibit the merger or consolidation of a WhollyOwned
Restricted Subsidiary with the Company; provided that, in connection with
anysuch merger or consolidation, no consideration, other than Qualified Equity
Interests in the surviving Person or the Company, shall be issued or distributed
to the holders of Equity Interests of the Company.
(c) The
Company will not lease all or substantially all its assets in one ormore related
transactions to another Person.
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2.19
|
Section
5.03 of the Indenture shall be amended to read in its entirety as
follows:
|
Section
5.03. Consolidation, Merger or Sale of Assets by Equistar Funding.
(a) Equistar
Funding shall not consolidate with, merge into, sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all of its property and
assets to, any Person, or permit any Person to merge with or into
Equistar Funding unless:
(i) Concurrently
therewith, a corporate Wholly Owned Restricted Subsidiary of Equistar organized
and validly existing under the laws of the United States of America or any
jurisdiction thereof (which may be the continuing Person as a result of such
transaction) shall expressly assume, by a supplemental Indenture, executed
and
delivered to the Trustee and in form and substance satisfactory to the Trustee,
all of the obligations of an Issuer under the Notes, the Indenture and the
Registration Rights Agreement; or
(ii) After
giving effect thereto, at least one obligor on the Notes shall be a corporation
organized and validly existing under the laws of the United States of America
or
any jurisdiction thereof.
(iii) [Intentionally
Omitted].
(b) Upon
any
assumption of the obligations of Equistar Funding by any successors as set
forth
above, the successor shall succeed to, and be substituted for (so that from
and
after the date of such assumption, the provisions of this Indenture referring
to
“Equistar Funding” shall refer instead to the successor corporation), and may
exercise every right and power of, Equistar Funding under this Indenture with
the same effect as if such successor Person had been named as Equistar Funding
herein, and the predecessor Equistar Funding shall be released from all its
obligations hereunder and under the Notes. If, as a result of any
such transaction, the Company becomes the successor to Equistar Funding pursuant
to Section 5.03 (a) (ii), Section 4.17 shall cease to be in effect with respect
to the Company.
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2.20
|
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 ofDefault”:
(1) Default
for 30 days in the payment when due of interest (includingthe issuance of
Additional Dividend Notes) or LiquidatedDamages on the Notes;
(2) Default
in payment when due of the principal of or premium, ifany, on the Notes at
maturity or otherwise;
(3) Failure
by the Issuers to comply with Article 5; and
(4) [Intentionally
Omitted].
(5) [Intentionally
Omitted].
(6) [Intentionally
Omitted].
(7) A
court
having jurisdiction in the premises enters a decree or order for
relief (i) 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 the property and
assets of the Company or any Significant Subsidiary or (iii) the winding up
or
liquidation of 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.
(8) [Intentionally
Omitted].
(9) [Intentionally
Omitted].
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2.21
|
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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2.22
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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.
EQUISTAR
CHEMICALS, LP
By: /s/
Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title:
Vice
President, Controller
and Chief Accounting Officer
EQUISTAR
FUNDING CORPORATION
By: /s/
Xxxxxx X. X'Xxxxx, Vice President
Name: Xxxxxx X. X'Xxxxx
Title: Vice President, General
Counsel
and Secretary
THE
BANK
OF NEW YORK, as Trustee
By: /s/
Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx
X.
Xxxxxxxxxx
Title: Vice
President
