EXHIBIT 4.16(b)
LYONDELL CHEMICAL COMPANY,
THE SUBSIDIARY GUARANTORS party hereto
and
THE BANK OF NEW YORK,
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of
July 3, 2002
to
INDENTURE
Dated as of
December 4, 2001
THIS FIRST SUPPLEMENTAL INDENTURE (this "Supplement"), dated as of
July 3, 2002 (the "Closing Date"), among Lyondell Chemical Company, a Delaware
corporation ("Lyondell"), the Subsidiary Guarantors party hereto (the
"Subsidiary Guarantors"), and The Bank of New York, as trustee (the "Trustee"),
supplements the Indenture dated as of December 4, 2001, among Lyondell, the
Subsidiary Guarantors and the Trustee, pursuant to which the 9.50% Senior
Secured Notes Due 2008 (the "Notes") were issued and are outstanding (the
"Indenture").
RECITALS
WHEREAS, Lyondell has executed and delivered to the Trustee the
Indenture, providing for the issuance of the Notes as provided in the Indenture
and guaranteed by the Subsidiary Guarantors to the extent provided therein;
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 Consent Solicitation Statement dated
June 19, 2002, as amended, the written consent of the Holders of not less than a
majority in aggregate principal amount of the Notes has been obtained to effect
changes to the Indenture amending Sections 1.01, 4.07(b)(ix) and 4.09(b)(i) of
the Indenture.
NOW, THEREFORE, THIS SUPPLEMENT WITNESSETH:
In consideration of the premises and other good and valuable
consideration, the parties hereto hereby agree, for the equal and proportionate
benefit of the respective Holders from time to time of the Notes, as follows:
SECTION ONE
1.1 Capitalized terms used 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 Supplement. The recitals herein are deemed to be those of Lyondell.
SECTION TWO
AMENDMENTS
2.1 Section 1.01 of the Indenture shall be amended to add the following
sentence at the end of the definition of "Subsidiary" currently set forth
in the Indenture:
No Specified Joint Venture that otherwise would be a "Subsidiary" under
this definition shall be deemed to be or become a Subsidiary or a
Restricted Subsidiary until such designation would not result in a Default
under Section 4.06 (provided that, if (i) such
Specified Joint Venture would otherwise be or become a "Subsidiary" as a
result of an Investment by the Company or any Restricted Subsidiary made
after June 12, 2002, and (ii) such Investment is not made in exchange for,
or out of the net cash proceeds of the substantially concurrent sale (other
than to a Subsidiary or Joint Venture of the Company) of, Qualified Equity
Interests of the Company, then this sentence shall not apply); at such time
as the designation of such Specified Joint Venture would not result in a
Default under Section 4.06, such Specified Joint Venture shall
automatically be a Subsidiary and a Restricted Subsidiary (unless
designated as an Unrestricted Subsidiary).
2.2 Section 4.07(b)(ix) of the Indenture shall be amended to read in its
entirety as follows:
(ix) the payment of dividends on the Company's common stock at a rate not
to exceed $0.90 per share per annum (such $0.90 amount to be appropriately
adjusted to reflect any stock split, reverse stock split, stock dividend or
similar transaction made after the Issue Date so that the aggregate amount
of dividends payable after such transaction is the same as the amount
payable immediately prior to such transaction);
2.3 Section 4.09(b)(i) of the Indenture shall be amended to read in its
entirety as follows:
(b) Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds, at its option:
(i) to permanently repay Senior Indebtedness (and to correspondingly
reduce commitments with respect thereto in the case of revolving
borrowings) of the Company or a Subsidiary Guarantor or
Indebtedness (and to correspondingly reduce commitments with
respect thereto in the case of revolving borrowings) of any
Restricted Subsidiary that is not a Subsidiary Guarantor;
provided that, so long as the provisions of Section 4.12 are in
effect, only (A) repayment of Senior Indebtedness incurred
under the Existing Credit Facility (but not any refinancing
thereof other than a credit facility with commercial banks and
other lenders) or (B) if a Restricted Subsidiary that is not a
Subsidiary Guarantor has consummated the Asset Sale, repayment of
Indebtedness of such Restricted Subsidiary, with a corresponding
reduction in commitments with respect thereto in the case of
revolving borrowings (provided that the aggregate of all
repayment of Indebtedness by any Restricted Subsidiary under this
Section 4.09(b)(i)(B) shall not exceed the amount of Indebtedness
of such Restricted Subsidiary (including in Indebtedness, for
purposes of this Section 4.09(b)(i)(B) only, the undrawn portion
of any revolving credit facility of such Restricted Subsidiary)
as of June 30, 2002), shall constitute a repayment of
Indebtedness permitted pursuant to this clause (i); or
2
SECTION THREE
RATIFICATION
Except as expressly amended and supplemented in this Supplement, the
Indenture shall remain unchanged and in full force and effect. This Supplement
shall be construed as supplemental to the Indenture and shall form a part
thereof.
SECTION FOUR
GOVERNING LAW
This Supplement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed therein.
SECTION FIVE
COUNTERPARTS
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
3
IN WITNESS WHEREOF, the parties have duly executed and delivered this
First Supplemental Indenture or have caused this First 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
By:/s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
ARCO CHEMICAL TECHNOLOGY, INC., as a
Subsidiary Guarantor
By:/s/ Xxxxxxx X. XxXxxxx
--------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: President and Treasurer
ARCO CHEMICAL TECHNOLOGY, L.P., as a
Subsidiary Guarantor
By: ARCO Chemical Technology Management,
Inc., its General Partner
By:/s/ Xxxxxxx X. XxXxxxx
--------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: President and Treasurer
LYONDELL CHEMICAL NEDERLAND,
LTD., as a Subsidiary Guarantor
By:/s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Van X. Xxxxx
--------------------------------------
Name: Van X. Xxxxx
Title: Vice President
