THIRD 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
4.6(b)
dated
as
of December 6, 2007
among
EQUISTAR
CHEMICALS, LP
EQUISTAR
FUNDING CORPORATION,
as
Issuers
and
THE
BANK
OF NEW YORK,
as
Trustee
__________________________
8.750
%
Notes due 2009
THIS
THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”),
entered into as of December 6, 2007, among Equistar Chemicals, LP, a Delaware
limited partnership (“Equistar”), Equistar Funding Corporation, a Delaware
corporation (“Equistar Funding” and, together with Equistar, 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 January
15,
1999, as amended, supplemented or otherwise modified to date (the
“Indenture”), relating to the Issuers 8.750 % Senior Secured
Notes due 2012 (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 4.03, 4.04, 4.05, 4.06, 4.08, 4.09, 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
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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
4.03 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted]
|
2.2
|
Section
4.04 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.3
|
Section
4.05 of the Indenture shall be deleted in its entirety and replaced
by the
following:
|
[Intentionally
Omitted].
|
2.4
|
Section
4.06 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 amended to read in its entirety as
follows:
|
[Intentionally
Omitted]
|
2.7
|
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 and Sale of Assets
Each
of the Issuers may not
consolidate with or merge into, or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets to, any Person,
unless each of the following conditions is satisfied.
(a) [Intentionally
Omitted].
(b) Either
(i) the applicable Issuer shall be the continuing partnership or corporation,
as
applicable, or (ii) the entity formed by such consolidation or into which the
applicable Issuer is merged, or the Person to which such properties and assets
will have been conveyed, transferred or leased, assumes the applicable Issuer's
obligation as to the due and punctual payment of the principal of (and premium,
if any, on) and interest, if any, on the Securities and
the performance and observance of every covenant to be performed by the
applicable Issuer hereunder; any such entity will be organized under the laws
of
the United States, one of the States thereof or the District of Columbia;
and
The
Issuers have delivered to the Trustees an Officers' Certificate and Opinion
of
Counsel stating that the transaction complies with these
conditions.
In
the
event of any transaction described in this Section 5.01, if any Restricted
Property would thereupon become subject to any Lien, the Securities will be
secured, as to such Restricted Property, equally and ratably with (or prior
to)
the Debt that upon the occurrence of such transaction would become secured
by
such Lien, unless such Lien could be created under this Indenture without
equally and ratably securing such Securities.
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2.8
|
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.
Unless
either inapplicable to a particular series or specifically deleted or modified
in or pursuant to the supplemental indenture or Resolution establishing such
series of Securities or in the form of Security for such series, an “Event of
Default,” wherever used herein with respect to Securities of any series, occurs
if:
(1) the
Issuers default in the payment of interest on or any Additional Amounts with
respect to any Security of that series when the same becomes due and
payable and such default continues for a period of 30 days;
(2) the
Issuers default in the payment of (A) the principal of any Security of that
series at its Maturity or (B) premium (if any) on any Security of that series
when the same becomes due and payable; or
(3) [Intentionally
Omitted].
(4) [Intentionally
Omitted].
(5) [Intentionally
Omitted].
(6) a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that remains unstayed and in effect for 90 days and that:
(A) is
for relief against either of the Issuers as debtor in an involuntary
case,
(B) appoints
a Bankruptcy Custodian of either of the Issuers or a Bankruptcy Custodian for
all or substantially all of the property of either of the Issuers,
or
(C) orders
the liquidation of either of the Issuers; or
(D) any
other Event of Default provided with respect to Securities of that series
occurs.
The
term
“Bankruptcy Custodian” means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
The
Trustee shall not be deemed to know or have notice of a Default unless a Trust
Officer at the Corporate Trust Office of the Trustee receives written notice
at
the Corporate Trust Office of the Trustee of such Default with specific
reference to such Default.
When
a
Default is cured, it ceases.
Notwithstanding
the foregoing provisions of this Section 6.01, if the principal of, premium
or
interest on or Additional Amounts with respect to any Security is payable in
a
currency or currencies (including a composite currency) other than Dollars
and
such currency or currencies are not available to the Issuers for making payment
thereof due to the imposition of exchange controls or other circumstances beyond
the control of the Issuers (a “Conversion Event”), the Issuers will be entitled
to satisfy their obligations to Holders of the Securities by making such payment
in Dollars in an amount equal to the Dollar equivalent of the amount payable
in
such other currency, as determined by the Issuers by reference to the Exchange
Rate on the date of such payment, or, if such rate is not then available, on
the
basis of the most recently available Exchange Rate. Notwithstanding
the foregoing provisions of this Section 6.01, any payment made under such
circumstances in Dollars where the required payment is in a currency other
than
Dollars will not constitute an Event of Default under this
Indenture.
Promptly
after the occurrence of a Conversion Event, the Issuers shall give written
notice thereof to the Trustee; and the Trustee, promptly after receipt of such
notice, shall give notice thereof in the manner provided in Section 10.02 to
The
Holders. Promptly after the making of any payment in Dollars as a
result of a Conversion Event, the Issuers shall give notice in the manner
provided in Section 10.02 to the Holders, setting forth the applicable Exchange
Rate and describing the calculation of such payments.
A
Default
under this Section 6.01 is not an Event of Default until the Trustee notifies
the Issuers, or the Holders of at least 25% in principal amount of the then
outstanding Securities of the series affected by such Default notify the Issuers
and the Trustee, of the Default, and the Issuers fails to cure the Default
within 90 days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a “Notice of
Default.”
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2.9
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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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2.10
|
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 Equistar 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
