EXHIBIT 4.10(a)
EQUISTAR CHEMICALS, LP
EQUISTAR FUNDING CORPORATION
8 1/2% Notes due 2004
8 3/4% Notes due 2009
______________
SECOND SUPPLEMENTAL INDENTURE
Dated as of October 4, 1999
_____________
The Bank of New York
TRUSTEE
EXHIBIT 4.10(a)
SECOND SUPPLEMENTAL INDENTURE dated as of October 4, 1999 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, a New York banking
corporation, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuers have heretofore entered into an Indenture, dated as of
January 15, 1999 (the "Original Indenture"), with the Trustee;
WHEREAS, the Issuers have heretofore entered into a First Supplemental
Indenture dated as of February 16, 1999 (the "First Supplemental Indenture"),
with the Trustee;
WHEREAS, the Original Indenture is incorporated herein by this reference
and the Original Indenture, as supplemented by this Second Supplemental
Indenture, is herein called the "Indenture;"
WHEREAS, the Issuers issued two series of Initial Securities under the
First Supplemental Indenture, consisting of $300,000,000 aggregate principal
amount of 8 1/2% Notes due 2004 (the "Outstanding 8 1/2% Notes") and
$600,000,000 aggregate principal amount of 8 3/4% Notes due 2004 (the
"Outstanding 8 3/4% Notes" and, together with the Outstanding 8 1/2% Notes, the
"Outstanding Notes");
WHEREAS, the Outstanding Notes are Rule 144A Securities;
WHEREAS, the Issuers completed the private placement of the Outstanding
Notes on February 16, 1999;
WHEREAS, in connection with the private placement of the Outstanding Notes,
the Issuers entered into the Exchange and Registration Rights Agreement pursuant
to which the Issuers agreed, under certain circumstances, to offer to exchange
the Outstanding 8 1/2% Notes for Exchange Securities registered under the
Securities Act of 1933, as amended, which are otherwise substantially identical
to the Outstanding 8 1/2% Notes (the "8 1/2% Exchange Offer"), and to offer to
exchange the Outstanding 8 3/4% Notes for Exchange Securities registered under
the Securities Act of 1933, as amended, which are otherwise substantially
identical to the Outstanding 8 3/4% Notes (the "8 3/4% Exchange Offer");
WHEREAS, all conditions necessary to authorize the execution and delivery
of this Second Supplemental Indenture and to make it a valid and binding
obligation of each of the Issuers have been done or performed.
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NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
SECTION 1.01 Establishment and Terms.
(a) There is hereby established a new series of Exchange Securities under
the Indenture to be exchanged for up to all of the Outstanding 8 1/2% Notes to
be designated as the Issuers' 8 1/2% Notes due 2004 (the "New 8 1/2% Notes" and,
together with the Outstanding 8 1/2% Notes, the "8 1/2% Notes").
There are to be authenticated and delivered up to $300,000,000
principal amount of New 8 1/2% Notes. The New 8 1/2% Notes shall be issued in
definitive fully registered form.
The New 8 1/2% Notes shall be issued in the form of one or more Global
Securities in substantially the form set out in Exhibit A hereto and as further
provided in Section 1.03. The initial Depositary with respect to the New 8 1/2%
Notes shall be The Depository Trust Company ("DTC").
There shall be no limit upon the aggregate principal amount of New
8 1/2% Notes that may be authenticated and delivered under this Indenture.
The Issuers will exchange up to $300,000,000 aggregate principal
amount of New 8 1/2% Notes authenticated and delivered under this Indenture for
a like principal amount of Outstanding 8 1/2% Notes.
The New 8 1/2% Notes will mature on February 15, 2004.
The New 8 1/2% Notes will bear interest at the rate of 8 1/2% per
annum. Interest Payment Dates will be February 15 and August 15 of each year.
Holders of New 8 1/2% Notes on the relevant record date for the first interest
payment date following the consummation of the 8 1/2% Exchange Offer will
receive interest accruing from the most recent date to which interest has been
paid on the Outstanding 8 1/2% Notes. Outstanding 8 1/2% Notes accepted for
exchange will cease to accrue interest from and after the date of consummation
of the 8 1/2% Exchange Offer. Holders whose Outstanding 8 1/2% Notes are
accepted for exchange will not receive any payment in respect of accrued
interest on such Outstanding 8 1/2% Notes otherwise payable on any interest
payment date the record date for which occurs on or after the consummation of
the 8 1/2% Exchange Offer. Interest shall be paid to the Person in whose name
the applicable New 8 1/2% Note is registered at the close of business on
February 1, in the case of the February 15 Interest Payment Date, and August 1,
in the case of the August 15 Interest Payment Date. Interest will be computed
on the basis of a 360-day year of twelve 30-day months. No Additional Amounts
will be payable on the New 8 1/2% Notes.
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The New 8 1/2% Notes will be redeemable as provided in Section 1.02.
The New 8 1/2% Notes will not be subject to a sinking fund.
The New 8 1/2% Notes shall, together with any Outstanding 8 1/2% Notes
which are not exchanged pursuant to the 8 1/2% Exchange Offer, constitute a
single series of Securities under the Indenture.
All payments of principal, premium (if any) and interest on the New
8 1/2% Notes shall be made in accordance with Section 4.02 of the Original
Indenture.
(b) There is hereby established a new series of Exchange Securities
under the Indenture to be exchanged for up to all of the Outstanding 8 3/4%
Notes to be designated as the Issuers' 8 3/4% Notes due 2009 (the "New 8 3/4%
Notes" and, together with the Outstanding 8 3/4% Notes, the "8 3/4% Notes").
There are to be authenticated and delivered up to $600,000,000
principal amount of New 8 3/4% Notes. The New 8 3/4% Notes shall be issued in
definitive fully registered form.
The New 8 3/4% Notes shall be issued in the form of one or more Global
Securities in substantially the form set out in Exhibit A hereto and as further
provided in Section 1.03. The initial Depositary with respect to the New 8 3/4%
Notes shall be DTC.
There shall be no limit upon the aggregate principal amount of New
8 3/4% Notes that may be authenticated and delivered under this Indenture.
The Issuers will exchange up to $600,000,000 aggregate principal
amount of New 8 3/4% Notes authenticated and delivered under this Indenture for
a like principal amount of Outstanding 8 3/4% Notes.
The New 8 3/4% Notes will mature on February 15, 2009.
The New 8 3/4% Notes will bear interest at the rate of 8 3/4% per
annum. Interest Payment Dates will be February 15 and August 15 of each year.
Holders of New 8 3/4% Notes on the relevant record date for the first interest
payment date following the consummation of the 8 3/4% Exchange Offer will
receive interest accruing from the most recent date to which interest has been
paid on the Outstanding 8 3/4% Notes. Outstanding 8 3/4% Notes accepted for
exchange will cease to accrue interest from and after the date of consummation
of the 8 3/4% Exchange Offer. Holders whose Outstanding 8 3/4% Notes are
accepted for exchange will not receive any payment in respect of accrued
interest on such Outstanding 8 3/4% Notes otherwise payable on any interest
payment date the record date for which occurs on or after the consummation of
the 8 3/4% Exchange Offer. Interest shall be paid to the Person in whose name
the applicable New 8 3/4% Note is registered at the close of business on
February 1, in the case of the February 15 Interest Payment Date, and August 1,
in
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the case of the August 15 Interest Payment Date. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. No Additional Amounts will
be payable on the New 8 3/4% Notes.
The New 8 3/4% Notes will be redeemable as provided in Section 1.02.
The New 8 3/4% Notes will not be subject to a sinking fund.
The New 8 3/4% Notes shall, together with any Outstanding 8 3/4% Notes
which are not exchanged pursuant to the 8 3/4% Exchange Offer, constitute a
single series of Securities under the Indenture.
All payments of principal, premium (if any) and interest on the New
8 3/4% Notes shall be made in accordance with Section 4.02 of the Original
Indenture.
SECTION 1.02 Optional Redemption.
The New 8 1/2% Notes and the New 8 3/4% Notes (together the "New
Notes") will be redeemable only in accordance with this Section 1.02.
Each of the New 8 1/2% Notes and the New 8 3/4% Notes will be
redeemable, in whole or in part, at any time at the option of the Issuers at a
redemption price (the "Redemption Price") equal to the greater of (i) 100% of
the principal amount of the New Notes to be redeemed, or (ii) as determined by a
Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest of the New Notes to be redeemed discounted to
the date of redemption (the "Redemption Date") on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate,
plus, in each case, accrued but unpaid interest to the Redemption Date.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each holder of the New Notes to be
redeemed. Unless the Issuers default in payment of the Redemption Price,
interest will cease to accrue on the New Notes to be redeemed, or portions
thereof called for redemption on and after the Redemption Date.
CERTAIN DEFINITIONS
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date, plus 0.25%.
"Comparable Treasury Issue" means the United States Treasury security
selected by a Quotation Agent as having a maturity comparable to the remaining
term of the New 8 1/2% Notes
4
or the New 8 3/4% Notes, as applicable, to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such New 8 1/2% Notes or the New 8 3/4% Notes, as applicable.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (a) the average
of the Reference Treasury Dealer Quotations for such Redemption Date or (b) if
the Issuers obtain only one Reference Treasury Dealer Quotation, the Reference
Treasury Dealer Quotation.
"Quotation Agent" means one of the Reference Treasury Dealers
appointed by the Issuers and certified to the Trustee by the Issuers.
"Reference Treasury Dealer" means each of Chase Securities Inc.,
NationsBanc Montgomery Securities LLC, ABN AMRO Incorporated, BNY Capital
Markets, Inc., First Chicago Capital Markets, Inc. and J.P. Morgan Securities
Inc. and their respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government Securities dealer in New
York City (a "Primary Treasury Dealer"), the Issuers shall substitute therefor
another Primary Treasury Dealer and certify same to the Trustee.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Issuers and certified to the Trustee by the Issuers, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Issuers by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day preceding such Redemption
Date.
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ARTICLE II
SECTION 2.01. All moneys paid by the Issuers to the Trustee or a
Paying Agent for the payment of principal of (or premium, if any) or interest,
if any, on any New Note that remains unclaimed for two years after such
principal, premium or interest becomes due and payable will be repaid to the
Issuers, and the holders of such New Notes will (subject to applicable abandoned
property or similar laws) thereafter, as unsecured general creditors, look only
to the Issuers.
SECTION 2.02. The recitals in this Second Supplemental Indenture are
made by the Issuers only and not by the Trustee, and all of the provisions
contained in the Original Indenture in respect of the rights, privileges,
immunities, powers and duties of the Trustee shall be applicable in respect of
the New 8 1/2% Notes or the New 8 3/4% Notes, as applicable, and of this Second
Supplemental Indenture as fully and with like effect as if set forth herein in
full.
SECTION 2.03. The Original Indenture and the First Supplemental
Indenture are in all respects ratified and confirmed, and the Original Indenture
and this Second Supplemental Indenture shall be read, taken and construed as one
and the same instrument; provided that, in case of conflict between this Second
Supplemental Indenture and the Original Indenture, this Second Supplemental
Indenture shall control.
SECTION 2.04. This Second Supplemental Indenture may be
simultaneously executed in several counterparts, each of which shall be deemed
to be an original, and such counterparts shall together constitute one and the
same instrument.
SECTION 2.05. Nothing in the Indenture expressed or implied is
intended or shall be construed to confer upon, or to give or grant to, any
person or entity, other than the Issuers, the Trustee, the Paying Agent and the
registered owners of the New Notes, any right, remedy or claim under or by
reason of the Indenture or any covenant, condition or stipulation hereof, and
all covenants, stipulations, promises and agreements in the Indenture contained
by and on behalf of the Issuers shall be for the sole and exclusive benefit of
the Issuers, the Trustee, the Paying Agent and the registered owners of the New
Notes.
SECTION 2.06. Neither the Issuers nor the Trustee will have any
responsibility for the performance of DTC, Euroclear or Cedel, or any of their
participants, direct or indirect, of their respective obligations under the
rules and procedures governing their operations.
6
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year first above
written.
EQUISTAR CHEMICALS, LP
By: /s/ Gerald A. O'Brien
-------------------------------------
Name: Gerald A. O'Brien
Title: Vice President, General Counsel and
Secretary
EQUISTAR FUNDING CORPORATION
By: /s/ Gerald A. O'Brien
-------------------------------------
Name: Gerald A. O'Brien
Title: Vice President, General Counsel and
Secretary
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ Van K. Brown
-------------------------------------
Name: Van K. Brown
Title: Assistant Vice President
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EXHIBIT A
FORM OF NEW NOTE
8
[REVERSE OF SECURITY]
EQUISTAR CHEMICALS, LP
EQUISTAR FUNDING CORPORATION
____% NOTE DUE ______
No. ___ CUSIP No. _________
$
Equistar Chemicals, LP, a Delaware limited partnership (the "Partnership,"
which term includes any successor Person under the Indenture hereinafter
referred to), and Equistar Funding Corporation, a Delaware corporation (the
"Corporation," which term includes any successor person under the Indenture
hereinafter referred to, and, together with the Partnership, the "Issuers"), for
value received promises to pay to _________ or registered assigns, the principal
sum of_______________ Dollars[, or such greater or lesser amount as indicated on
the Schedule of Exchanges of Securities hereto,]/2/ on February 15, ___________.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, each of the Partnership and the Corporation has
caused this Security to be signed manually or by facsimile by their respective
duly authorized officers.
Dated:__________________________, 1999
EQUISTAR CHEMICALS, LP
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
- ----------------
/2/ To be included in any Global Note.
EQUISTAR FUNDING CORPORATION
By:
------------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
Certificate of Authentication:
This is one of the Securities of the series
designated therein referred to in the within-
mentioned Indenture.
THE BANK OF NEW YORK
By:______________________________ Dated:___________________, 1999
Authorized Signatory
[REVERSE OF SECURITY]
EQUISTAR CHEMICALS, LP
EQUISTAR FUNDING CORPORATION
____% NOTE DUE _____
This Security is one of a duly authorized issue of ____% Notes due
_____ (the "Securities") of Equistar Chemicals, LP, a Delaware limited
partnership (the "Partnership") and Equistar Funding Corporation, a Delaware
corporation (the "Corporation" and together referred to as the "Issuers").
1. Interest. The Issuers promise to pay interest on the
principal amount of this Security at ____% per annum from __________________
until maturity. The Issuers will pay interest semiannually on February 15 and
August 15 of each year (each an "Interest Payment Date"), or if any such day is
not a Business Day, on the next succeeding Business Day. Interest on the
Securities will accrue from the most recent Interest Payment Date on which
interest has been paid or, if no interest has been paid, from ____________;
provided that if there is no existing Default in the payment of interest, and if
this Security is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such next succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be _______. The Issuers shall pay interest on
overdue principal from time to time on demand at a rate equal to the interest
rate then in effect; they shall pay interest on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment. The Issuers will pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders
of Securities at the close of business on the record date next preceding the
Interest Payment Date, even if such Securities are canceled after such record
date and on or before such Interest Payment Date. The Holder must surrender
this Security to a Paying Agent to collect principal payments. The Issuers will
pay the principal of and interest on the Securities in money of the United
States of America that at the time of payment is legal tender for payment of
public and private debts. The Issuers, however, may pay such amounts by check
payable in such money. The Issuers may make payments in respect of the
Securities evidenced by a Global Security (including principal, premium, if any,
and interest) by wire transfer of immediately available funds to the accounts
specified by the Holder of the Global Security. In all other cases, payment of
interest may be made at the option of the Issuers by check to a Holder's
registered address.
3. Paying Agent and Registrar. Initially, The Bank of New York
(the "Trustee"), the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Issuers may change any Paying Agent, Registrar, co-registrar or
additional paying agent without notice to any Holder. The Partnership, the
Corporation, or any of the Partnership's subsidiaries may act in any such
capacity.
4. Indenture. The Issuers issued the Securities under an
Indenture dated as of January 15, 1999 among the Partnership, the Corporation
and the Trustee, as supplemented by the Second Supplemental Indenture dated as
of ______, 1999 (the "Indenture"). The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code (S)(S) 77aaa-77bbbb) (the
"TIA"), as in effect on the date of execution of the Indenture. The Securities
are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. The Securities are unsecured general obligations of the Issuers and are
unlimited in aggregate principal amount. The Indenture provides for the issuance
of other series of debt securities (including the Securities, the "Debt
Securities") thereunder.
5. Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and
Securities may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not exchange or register
the transfer of any Securities during the period between a record date and the
corresponding Interest Payment Date or of any Security selected for redemption,
except the unredeemed portion of any Security being redeemed in part.
6. Persons Deemed Owners. The registered Holder of a Security
shall be treated as its owner for all purposes.
7. Redemption. The Securities will be redeemable, in whole or in
part, at any time at the option of the Issuers, upon not less than 30 nor more
than 60 days' prior notice as provided in the Indenture, at a redemption price
(the "Redemption Price") equal to the greater of (i) 100% of the principal
amount of the Securities to be redeemed or (ii) as determined by a Quotation
Agent, the sum of the present values of the remaining scheduled payments of
principal and interest on the Securities to be redeemed discounted to the date
of redemption (the "Redemption Date") on a semiannual basis (assuming 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as
hereafter defined), plus, in each case, accrued but unpaid interest to the
Redemption Date.
The Adjusted Treasury rate means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue (as hereafter defined), assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price (as hereafter defined) for such
Redemption Date, plus 0.25%.
Comparable Treasury Issue means the United States Treasury security
selected by a Quotation Agent (as hereafter defined) as having a maturity
comparable to the remaining term of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
Comparable Treasury Price means, with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (a) the average
of the Reference Treasury Dealer Quotations (as hereafter defined) for such
Redemption Date or (b) if the Issuers obtain only one Reference Treasury Dealer
Quotation, the Reference Treasury Dealer Quotation.
Quotation Agent means one of the Reference Treasury Dealers appointed
by the Issuers and certified to the Trustee by the Issuers.
Reference Treasury Dealer means each of Chase Securities Inc.,
NationsBanc Montgomery Securities LLC, ABN AMRO Incorporated, BNY Capital
Markets, Inc., First Chicago Capital Markets, Inc. and J.P. Morgan Securities
Inc. and their respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government Securities dealer in New
York City (a "Primary Treasury Dealer"), the Issuers shall substitute therefor
another Primary Treasury Dealer and certify same to the Trustee.
Reference Treasury Dealer Quotations means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Issuers and certified to the Trustee by the Issuers, of the bid and asked
priced for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Issuers by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day preceding such Redemption
Date.
8. Amendments and Waivers. Subject to certain exceptions and
limitations, the Indenture or the Securities may be amended or supplemented with
the consent of the Holders of at least a majority in aggregate principal amount
of the then outstanding Debt Securities of all series of Debt Securities
affected by such amendment or supplement (acting as one class), and any existing
or past Default or Event of Default under, or compliance with any provision of,
the Indenture may be waived (other than any continuing Default or Event of
Default in the payment of the principal of or premium, if any, or interest on
the Securities) by the Holders of at least a majority in principal amount of the
then outstanding Debt Securities of any series or of all series (acting as one
class) in accordance with the terms of the Indenture. Without the consent of
any Holder, the Partnership, the Corporation and the Trustee may amend or
supplement the Indenture or the Securities or waive any provision of either, to
cure any ambiguity, omission, defect or inconsistency (provided such action does
not adversely affect in any material respect the interests of the Holders); to
comply with the provisions of the Indenture relating to merger, consolidation
and certain other transactions; to provide for uncertificated Securities in
addition to or in place of certificated Securities or to provide for the
issuance of bearer securities; to provide any security for the Securities or to
add guarantees of the Securities; to comply with any requirement in order to
effect or maintain the qualification of the Indenture under the TIA; to add to
the covenants of the Issuers for the benefit of the Holders of the Securities,
or to surrender any right or power conferred by the Indenture upon the Issuers;
to add any additional Events of Default with respect to all or any series of the
Debt Securities; to change or eliminate any of the provisions of the Indenture,
provided that any such change or elimination shall become effective only when
there is no outstanding Debt Security of any series created prior to the
execution of such amendment or supplemental indenture that is adversely affected
in any material respect by such changes in or elimination of such provisions; to
establish the form or terms of Debt Securities of any series; to supplement any
of the provisions of the Indenture to such extent as shall be necessary to
permit or facilitate the defeasance and discharge of the Securities pursuant to
the Indenture, provided that any such action shall not adversely affect the
interest of the Holders of the Securities or any other series of Debt Securities
in any material respect; to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Securities and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
thereunder by more than one Trustee, pursuant to the requirements of the
Indenture; or to make any other change that does not adversely affect the rights
of any Holder.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of the Indenture (and the obligation of the
Issuers to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the
Holder of record of any Securities with respect to which such consent is
required or sought as of a date fixed in accordance with the terms of the
Indenture.
Without the consent of each Holder affected, the Issuers may not (i)
change the Stated Maturity of the principal of (or premium, if any, on) or any
installment of interest on any Security, or reduce the principal amount thereof
(or any premium, if any, thereon) or the rate of interest, if any, thereon, or
adversely affect the right of repayment, if any, at the option of the Holder, or
change any Place of Payment where any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or on or after any
Redemption Date or Repayment Date); (ii) reduce the aforesaid percentage in
aggregate principal amount of Debt Securities, the consent of the Holders of
which is necessary to execute any supplemental indenture; or (iii) reduce the
percentage in principal amount of outstanding Debt Securities, the consent of
the Holders of which is necessary to modify or waive any Default under the
Indenture.
A supplemental indenture that changes or eliminates any covenant or
other provision of the Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities under the
Indenture, or which modifies the rights of the Holders of Debt Securities of
such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under the Indenture of the Holders of Debt Securities
of any other series.
9. Defaults and Remedies. Events of Default are defined in the
Indenture and generally include: (i) default by the Issuers for 30 days in
payment of any interest on the Securities; (ii) default by the Issuers in any
payment of principal of (or premium, if any, on) the Securities; (iii) default
by the Issuers in observing or performing any of their other covenants or
agreements in, or provisions of, the Securities or in the Indenture which shall
not have been remedied within 60 days after written notice to the Issuers by the
Trustee or to the Issuers and Trustee by the holders of at least 25% in
aggregate principal amount of the Debt Securities then outstanding affected by
such default; or (iv) certain events involving bankruptcy, insolvency or
reorganization affecting the Issuers. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the outstanding Securities of the series affected by such default (or,
in the case of an Event of Default described in clause (iii) above, if
outstanding Debt Securities of other series are affected by such Default, then
at least 25% in principal amount of the then outstanding Debt Securities so
affected), may declare the principal of and interest on all the Securities to be
immediately due and payable, except that in the case of an Event of Default
arising from certain events of bankruptcy, insolvency or reorganization
affecting the Issuers, all outstanding Securities become due and payable
immediately without further action or notice. The amount due and payable upon
the acceleration of any Security is equal to 100% of the principal amount
thereof plus accrued interest to the date of payment. Holders may not enforce
the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the then outstanding Securities (or
affected Debt Securities) may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or may direct the
Trustee in its exercise of any trust or power conferred on the Trustee. The
Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal or interest) if it determines that withholding
notice is in their interests. The Issuers must furnish an annual compliance
certificate to the Trustee.
10. Discharge Prior to Maturity. The Indenture with respect to
the Securities shall be discharged and canceled upon the payment of all of the
Securities and shall be discharged
except for certain obligations upon the irrevocable deposit with the Trustee of
funds or U.S. Government Obligations sufficient for such payment.
11. Trustee Dealings with the Issuers. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Issuers or their Affiliates, and may otherwise deal
with the Issuers or their Affiliates, as if it were not Trustee.
12. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Issuers shall not have any liability for any
obligations of the Issuers under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Securities.
13. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
14. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Issuers have
caused CUSIP numbers to be printed on the Securities as a convenience to the
Holders of the Securities. No representation is made as to the accuracy of such
numbers as printed on the Securities and reliance may be placed only on the
other identification numbers printed thereon.
15. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
16. Restrictions on Transfer; Additional Rights of Holders of
Transfer Restricted Securities. By its acceptance of any Security bearing a
legend restricting transfer, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in the Indenture and in this
form of note in respect of the Securities and such legend and agrees that it
will transfer such Security only as provided in such Indenture.
THE ISSUERS WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE. REQUEST MAY BE MADE TO:
Equistar Chemicals, LP
1221 McKinney
Houston, Texas 77010
Telephone: (713) 652-7200
Attention: General Counsel
SCHEDULE OF EXCHANGES OF SECURITIES
The following exchanges of a part of this Global Note for Definitive Notes have
been made:
Principal Amount
Amount of Amount of of this Global Signature of
decrease in increase in Note following authorized officer
Date of Principal Amount Principal Amount such decrease of Trustee or
Exchange of this Global Note of this Global Note (or increase) Security Custodian
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ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to________________________________________
(Insert assignee's social security or tax I.D. number)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint_______________________________________________________
as agent to transfer this Security on the books of the Issuers. The agent may
substitute another to act for him.
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Date:_________________________ Your Signature:_____________________________
(Sign exactly as your name appears on
the face of this Security)
Signature Guarantee:_________________________________________________________
(Participant in a Recognized Signature Guaranty Medallion Program)
This assignment relates to $_____ principal amount of ___% Notes held
in*______ book-entry or* ______ definitive form by _____________________ (the
"Transferor").
The Transferor has requested the Trustee by written order to exchange
or register the transfer of a Note or Notes.
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*Fill in blank or check appropriate box, as applicable.