FIFTH SUPPLEMENTAL INDENTURE dated as of December 6, 2007 among LYONDELL CHEMICAL COMPANY, as Company and THE BANK OF NEW YORK, as Trustee
Exhibit
4.15(f)
FIFTH
SUPPLEMENTAL INDENTURE
dated
as
of December 6, 2007
among
LYONDELL
CHEMICAL COMPANY,
as
Company
and
THE
BANK
OF NEW YORK,
as
Trustee
__________________________
10.500%
Senior Secured Notes due 2013
THIS
FIFTH 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 May 20, 2003, as amended, supplemented or
otherwise modified to date (the “Indenture”), relating to the
Company’s 10.500 % Senior Secured Notes due 2013 (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. 4.12, 4.14, 4.15, 4.16, 4.17, 4.19, 4.20,
4.21, 4.22, 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
|
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.
|
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 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
4.12 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
4.22 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) Each
Subsidiary
Guarantee by a Restricted Subsidiary shall be automatically and unconditionally
released and discharged upon (i) any sale, exchange or transfer, to any Person
not an Affiliate of the Company, of all the Company's and each Restricted
Subsidiary's Capital Stock in such Restricted Subsidiary (which sale, exchange
or transfer is not prohibited by the Indenture) as provided in Section 5.03(b),
(ii) the release or discharge of the Guarantee which resulted in the creation
of
such Subsidiary Guarantee (or, in the case of the Subsidiary Guarantees of
ARCO
Chemical Technology, Inc., ARCO Chemical Technology, LP. and Lyondell Chemical
Nederland, Ltd. issued on the Issue Date, the release or discharge of its
Guarantee of Indebtedness under the Existing Credit Facility and the Existing
Senior Secured Notes), except a discharge or release by or as a result of
payment under such Guarantee, and (iii) the designation of such Restricted
Subsidiary as an Unrestricted Subsidiary in accordance with the terms of
the
Indenture.
(c)
[Intentionally
Omitted].
|
2.18
|
Section
4.23 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.19
|
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, the Indenture and the Security
Documents to which it is a party 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.
|
2.20
|
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 a Subsidiary
Guarantor.
(a)
No
Subsidiary Guarantor may consolidate with or merge with or into (whether
or not
such Subsidiary Guarantor is the surviving Person), another corporation,
Person
or entity whether or not affiliated with such Subsidiary Guarantor
unless:
(i) subject
to the provisions of Section 5.03(b) below, the Person formed by or surviving
any such consolidation or merger (if other than the Company or such Subsidiary
Guarantor) assumes all the obligations of such Subsidiary Guarantor, pursuant
to
a supplemental indenture in form and substance reasonably satisfactory to
the
Trustee, under the Notes; and
(ii) immediately
after giving effect to such transaction, no Default or Event of Default
exists.
(iii) [Intentionally
Omitted].
All
the
Subsidiary Guarantees issued pursuant to clause (i) above shall in all respects
have the same legal rank and benefit under this Indenture as the Subsidiary
Guarantees theretofore and thereafter issued in accordance with the terms
of
this Indenture as though all such Subsidiary Guarantees had been issued at
the
date of the execution hereof.
(b) (i)
The requirements of clauses (i) and (iii) of Section 5.03(a) will not apply
in
the case of a consolidation with or merger with or into the Company and the
requirements of clause (iii) of Section 5.03(a) will not apply in the case
of a
consolidation with or merger with or into another Subsidiary
Guarantor.
(ii) In
the
event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all the Capital Stock of any Subsidiary Guarantor to any Person
that is not an Affiliate of the Company permitted by the applicable provisions
of the Indenture, such Subsidiary Guarantor will be released and relieved
of any
obligations under its Subsidiary Guarantee; provided that the Net Proceeds
of
such sale or other disposition are applied in accordance with the applicable
provisions of the Indenture.
|
2.21
|
Section
6.01 of the Indenture shall be amended to read in its entirety
as
follows:
|
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;
or
(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].
(j) [Intentionally
Omitted].
|
2.22
|
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.
|
|
2.23
|
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.
|
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
