EXHIBIT 4.2(b)
LYONDELL CHEMICAL COMPANY,
EQUISTAR CHEMICALS, LP
AND
THE CHASE MANHATTAN BANK,
TRUSTEE
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF
NOVEMBER 3, 2000
TO
INDENTURE
DATED AS OF
JANUARY 29, 1996
(AS SUPPLEMENTED BY THE FIRST SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 15, 1996 AND THE SECOND SUPPLEMENTAL
INDENTURE DATED AS OF DECEMBER 1, 1997)
THIS THIRD SUPPLEMENTAL INDENTURE (this "Supplement"), dated as of
November 3, 2000 (the "Closing Date"), among Lyondell Chemical Company, a
Delaware corporation (formerly known as Lyondell Petrochemical Company,
"Lyondell"), Equistar Chemicals, LP, a Delaware limited partnership
("Equistar"), and The Chase Manhattan Bank, successor by merger to Chase Bank of
Texas, National Association (formerly known as Texas Commerce Bank National
Association), as Trustee (the "Trustee"), supplements the Indenture dated as of
January 29, 1996, between Lyondell and the Trustee under the Indenture, as
supplemented by the First Supplemental Indenture dated as of February 15, 1996
(the "First Supplemental Indenture"), pursuant to which the 6.50% Notes Due 2006
and 7.55% Debentures Due 2026 (collectively, the "Notes") were issued by
Lyondell and are outstanding, and the Second Supplemental Indenture dated as of
December 1, 1997 (the "Second Supplemental Indenture"), pursuant to which
Equistar became an obligor under the Indenture (such Indenture, as so amended
and supplemented, the "Indenture").
RECITALS
WHEREAS, Lyondell has executed and delivered to the Trustee the
Indenture, providing for the issuance from time to time of Lyondell's unsecured
debentures, notes or other evidences of indebtedness, issuable in one or more
series (the "Securities"), and Lyondell has executed and delivered to the
Trustee the First Supplemental Indenture, providing for the issuance of the
Notes, which are Securities under the Indenture;
WHEREAS, Lyondell contributed substantially all of its assets (for
purposes of Section 12.01 of the Indenture) to Equistar effective December 1,
1997;
WHEREAS, pursuant to the Asset Contribution Agreement dated as of
December 1, 1997, among Lyondell, Lyondell Petrochemical L.P. Inc. and Equistar,
Equistar assumed the Notes;
WHEREAS, Section 11.01 of the Indenture provides that under certain
conditions, the Company and the Trustee may enter into an indenture or
indentures supplemental to the Indenture, inter alia, to evidence the succession
of another corporation to the Company and the assumption by any such successor,
pursuant to Article 12 of the Indenture of the covenants, agreements and
obligations of the Company contained in the Indenture and the Securities;
WHEREAS, pursuant to Section 11.01(a) of the Indenture, Lyondell,
Equistar and the Trustee entered into the Second Supplemental Indenture;
WHEREAS, in accordance with Section 12.01 of the Indenture, pursuant
to the Second Supplemental Indenture, Equistar (a) expressly assumed the due and
punctual payment of the principal of and premium, if any, and interest, if any,
on all of the Securities of each series, according to their tenor, and the due
and punctual performance and observance of all of the covenants and conditions
of the Indenture, as supplemented by the First and Second Supplemental
Indentures, and in such series to be performed by Lyondell; and (b) succeeded to
and was substituted for Lyondell as the "Company" for purposes of the Indenture,
with the same effect as if Equistar had been named as the "Company" in the
Indenture, as supplemented;
WHEREAS, the Second Supplemental Indenture provided that subsequent to
December 1, 1997, for purposes of the Indenture, the term "Company" shall mean
and include both Equistar and Lyondell, and Equistar shall not be a "Subsidiary"
of Lyondell;
WHEREAS, Section 11.01(b) of the Indenture provides that, without the
consent of any Holders of any series of Securities, the Company and the Trustee
may enter into an indenture or indentures supplemental to the Indenture, inter
alia, to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of any series of
Securities as the Board of Directors and the Trustee shall consider to be for
the protection of the Holders of such Securities;
WHEREAS, Section 11.01(h) of the Indenture provides that, without the
consent of any Holders of any series of Securities, the Company and the Trustee
may enter into an indenture or indentures supplemental to the Indenture to
conform the Indenture to the provisions of the Trust Indenture Act of 1939 (the
"TIA");
WHEREAS, Lyondell and Equistar have duly determined to make, execute
and deliver to the Trustee this Supplement pursuant to Section 11.01 of the
Indenture, in order to (1) provide for the Guarantee, as hereinafter defined, of
the payment of the Notes, by Lyondell as the Guarantor, as hereinafter defined,
under the Indenture, and (2) amend certain provisions of the Indenture to
conform to the provisions of the TIA.
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 Securities, as
follows:
SECTION ONE
DEFINITIONS
Capitalized terms used and not otherwise defined herein have the
respective meanings assigned to such terms in the Indenture.
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SECTION TWO
AMENDMENTS
2.1 Section 1.01 of the Indenture shall be amended to add the following
definitions:
Guarantee
The term "Guarantee" shall mean the guarantee by the Guarantor of the
Company's obligations provided for by the third supplemental indenture
to the Indenture.
Guarantor
The term "Guarantor" shall mean Lyondell Chemical Company, a Delaware
corporation, until such time as Lyondell Chemical Company is released
from its Guarantee as permitted by the Indenture.
obligor
The term "obligor" shall mean the Company, the Guarantor or any other
obligor on the Securities.
United States Bankruptcy Code
The term "United Stated Bankruptcy Code" shall mean Title 11 of the
United States Code, Section 101 et seq.
2.2 Section 5.08 of the Indenture shall be amended so that (a) the first
reference to "The Company" is changed to "Each obligor" and (b) all
subsequent references to "the Company" are changed to "such obligor".
2.3 Section 6.01 of the Indenture shall be amended so that (a) the first
reference to "The Company" is changed to "Each obligor under the
Securities" and (b) the second reference to "the Company" is changed
to "such obligor".
2.4 Section 6.02(c) of the Indenture shall be amended so that (a) the
first reference to "the Company" is changed to "each obligor" and (b)
the second reference to "the Company" is changed to "such obligor".
2.5 Section 6.03(a) of the Indenture shall be amended so that (a) the
section caption "Reports by the Company" is changed to "Reports by
each obligor", (b) the first reference to "The Company" is changed to
"Each obligor", and (c) all subsequent references to "the Company" are
changed to "such obligor".
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2.6 Section 6.03(b) of the Indenture shall be amended so that (a) the
first reference to "The Company" is changed to "Each obligor" and (b)
the second reference to "the Company" is changed to "such obligor".
2.7 Section 6.03(c) of the Indenture shall be amended so that (a) the
first reference to "The Company" is changed to "Each obligor" and (b)
the second reference to "the Company" is changed to "such obligor".
2.8 Section 6.04(c)(1) of the Indenture shall be amended so that the
reference to "the Company" is changed to "each obligor".
2.9 Section 7.01(d) of the Indenture shall be amended so that (a) the
first, third and fourth references to "the Company" are changed to
"the Company or the Guarantor, as applicable," and (b) the second
reference to "the Company" is changed to "the Company or the
Guarantor".
2.10 Section 7.01(g) of the Indenture shall be amended so that the
reference to "if any." is replaced with "if any; or".
2.11 Section 7.01 of the Indenture shall be amended by inserting the
following paragraph:
(h) except as permitted by the Indenture, the Guarantee issued under
the Indenture shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full
force and effect or the Guarantor, or any Person acting on behalf of
the Guarantor, shall deny or disaffirm its obligations under the
Guarantee issued under the Indenture.
2.12 Section 7.07 of the Indenture shall be amended so that the reference
to "the Company" is changed to "the Company, the Guarantor".
2.13 Section 8.08 of the Indenture shall be amended so that the reference
to "the Company" is changed to "any obligor".
2.14 Section 8.09(b) of the Indenture shall be amended so that (a) the
first reference to "the Company" is changed to "any obligor" and (b)
the second reference to "the Company" is changed to "such obligor".
2.15 Section 9.03 of the Indenture shall be amended so that (a) the first
reference to "The Company" is changed to "The Company, the Guarantor"
and (b) the third reference to "the Company" is changed to "the
Company nor the Guarantor".
2.16 Section 9.05(b) of the Indenture shall be amended so that the
reference to "or the Company" is changed to ", the Company or the
Guarantor".
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2.17 Section 11.01(a) of the Indenture shall be amended so that the
following paragraph is added to the end of the paragraph:
or to evidence the succession of another corporation to the Guarantor,
or successive successions, and the assumption by the successor
corporation, pursuant to Section Four of the third supplemental
indenture to the Indenture, of the covenants, agreements and
obligations of the Guarantor in the Indenture and in the Securities
contained;
2.18 The first paragraph of Section 11.02 of the Indenture shall be
amended so that the following is added to the end of the first
sentence thereof:
or (iv) modify or change any provision of the Indenture affecting the
ranking of the Guarantee in a manner adverse to the Holders of the
Securities, or (v) release the Guarantor from any of its obligations
under the Guarantee or the Indenture other than in accordance with the
provisions of the Indenture, or amend or modify any provision relating
to such release.
2.19 Section 11.03 of the Indenture shall be amended so that the reference
to "the Company" is changed to "the Company, the Guarantor".
2.20 The first paragraph of Section 14.02 of the Indenture shall be
amended so that the following is added after the first reference to
"Securities of any series":
(and any Guarantor will be discharged from any and all obligations in
respect of its Guarantee)
2.21 Section 15.01 of the Indenture shall be amended so that the
references to "the Company" are changed to "the Company or the
Guarantor".
2.22 Section 16.01 of the Indenture shall be amended so that (a) the
section caption "Provisions Binding on Company's Successors" is
changed to "Provisions Binding on Successors", (b) the reference to
"the Company" is changed to "the Company and the Guarantor", and (c)
the reference to "its" is changed to "their respective".
2.23 Section 16.03 of the Indenture shall be amended so that (a) the first
reference to "the Company" is changed to "the Company or the
Guarantor" and (b) the last reference to "the Company" is changed to
"the Company or the Guarantor, as applicable".
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SECTION THREE
GUARANTEE
3.1 The Guarantee. Subject to the provisions of this Section Three, the
Guarantor hereby irrevocably and unconditionally guarantees the full
and punctual payment (whether at Stated Maturity, upon acceleration,
optional redemption or otherwise) of the principal of and premium, if
any, and interest on, and all other amounts payable under, each of the
Securities provided for under the Indenture, and the full and punctual
payment of all other amounts payable by the Company under the
Indenture. Upon failure by the Company to pay punctually any such
amount, the Guarantor shall forthwith on demand pay the amount not so
paid at the place and in the manner specified in the Indenture.
3.2 Guarantee Unconditional. The obligations of the Guarantor hereunder
shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall, to the fullest extent permitted by
law, not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of the Company under the Indenture or any
Security, by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Indenture or
any Security; provided that any such modification which increases the
obligations of the Guarantor hereunder shall not be effective as to
the Guarantor without its consent;
(c) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of the Company or the
Guarantor hereunder;
(d) any change in the corporate existence, structure or ownership of
the Company, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Company or its assets or any
resulting release or discharge of any obligation of the Company
contained in the Indenture or any Security;
(e) the existence of any claim, set-off or other rights which the
Guarantor may have at any time against the Company, the Trustee or any
other Person, whether in connection with the Indenture or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(f) any invalidity or unenforceability relating to or against the
Company for any reason of the Indenture or any Security, or any
provision of applicable law or
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regulation purporting to prohibit the payment by the Company of the
principal of or interest on any Security or any other amount payable
by the Company under the Indenture; or
(g) any other act or omission to act or delay of any kind by the
Company, the Trustee or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of or defense to the
Guarantor's obligations hereunder.
3.3 Discharge; Reinstatement. The Guarantor's obligations hereunder shall
remain in full force and effect until the principal of, premium, if
any, and interest on the Securities and all other amounts payable by
the Company under the Indenture shall have been paid in full. If at
any time any payment of the principal of, premium, if any, or interest
on any Security or any other amount payable by the Company under the
Indenture is rescinded or must be otherwise restored or returned upon
the insolvency, bankruptcy or reorganization of the Company or
otherwise, the Guarantor's obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but
not made at such time.
3.4 Waiver by the Guarantor. The Guarantee is a guarantee of payment and
not of collection. The Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be
taken by any Person against the Company or any other Person.
3.5 Subrogation and Contribution. Upon making any payment with respect
to any obligation of the Company under this Section Three, the
Guarantor making such payment shall be subrogated to the rights of the
payee against the Company with respect to such obligation; provided
that the Guarantor shall not enforce any right to receive payment by
way of subrogation against the Company or against any direct or
indirect security for such obligation, or any other right to be
reimbursed, indemnified or exonerated by or for the account of the
Company in respect thereof, so long as any amount payable by the
Company under the Indenture or under the Securities remains unpaid.
3.6 Stay of Acceleration. If acceleration of the time for payment of any
amount payable by the Company under the Indenture or the Securities is
stayed upon the insolvency, bankruptcy or reorganization of the
Company, all such amounts otherwise subject to acceleration under the
terms of the Indenture shall nonetheless be payable by the Guarantor
hereunder forthwith on demand by the Trustee or the Holders.
3.7 Limits of Guarantee. Notwithstanding anything to the contrary in this
Section Three, it is the intention that the Guarantee not constitute a
fraudulent conveyance under
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applicable fraudulent conveyance provisions of the United States
Bankruptcy Code or any comparable provision of state law. To
effectuate the foregoing intention, the Trustee, and the Guarantor
hereby irrevocably agree that the obligations of the Guarantor under
the Guarantee and this Section Three shall be limited to the maximum
amount that would not render the Guarantor,s obligations subject to
avoidance under applicable fraudulent conveyance provisions of the
United States Bankruptcy Code or any comparable provision of state
law.
3.8 Subsequent Delivery of Securities Guarantee. The delivery of any
Security by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Guarantee set forth in this
Supplement on behalf of the Guarantor.
3.9 Notwithstanding any of the provisions of Section Three or any release
subsequent hereto of the Guarantor as "the Company" or otherwise as a
primary obligor under the Indenture and the Securities, the Guarantor,
in its capacity as such, retains and does not hereby waive or
surrender any defenses or rights it has or would have in its capacity
as the issuer of the Securities.
SECTION FOUR
CONSOLIDATION, MERGER AND SALE BY THE GUARANTOR
4.1 Guarantor may Consolidate, etc., on Certain Terms. Subject to any
modification contained in any indenture supplemental hereto under
which any series of Securities is issued and subject to the provisions
of Section 12.02 of the Indenture, nothing contained in the Indenture
or in any of the Securities shall prevent any consolidation or merger
of the Guarantor with or into any other corporation or corporations
(whether or not affiliated with the Guarantor), or successive
consolidations or mergers in which the Guarantor or its successor or
successors shall be a party or parties, or shall prevent any sale or
conveyance of all or substantially all the property of the Guarantor,
to party or parties, or shall prevent any sale or conveyance of all or
substantially all the property of the Guarantor, to any other
corporation (whether or not affiliated with the Guarantor) authorized
to acquire and operate the same; provided however, that upon any such
consolidation, merger, sale or conveyance, other than a consolidation
or merger in which the Guarantor is the continuing corporation, the
Guarantee and the observance of all of the covenants and conditions of
the Indenture and in such series to be performed by the Guarantor,
shall be expressly assumed, by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee by the
corporation (if other than the Guarantor) formed by such
consolidation, or into which the Guarantor shall have been merged, or
by the corporation which shall have acquired such property; and
provided further that the Guarantor or such successor corporation, as
the case may be, shall not immediately after such merger,
consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition.
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4.2 Successor Corporation to be Substituted. In case of any such
consolidation, merger, sale or conveyance and upon the assumption by
the successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of
the Guarantee and the due and punctual performance of all of the
covenants and conditions of the Indenture to be performed by the
Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor, with the same effect as if it had been
named herein and, if the Guarantor is to be voluntarily dissolved, the
Guarantor shall thereupon be released from all obligations under the
Indenture and under the Securities.
4.3 Opinion of Counsel to be Given Trustee. Before the Trustee shall
execute any supplemental indenture required pursuant to this Section
Four, the Trustee, subject to Sections 8.01 and 8.02 of the Indenture,
shall receive and shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale or conveyance and any such
assumption complies with the provisions of this Section.
SECTION FIVE
RATIFICATION
Except as expressly amended and supplemented on 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 SIX
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 SEVEN
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.
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IN WITNESS WHEREOF, each of Lyondell Chemical Company and Equistar
Chemicals, LP have caused this Third Supplemental Indenture to be duly executed
and The Chase Manhattan Bank as Trustee, has caused this Third Supplemental
Indenture to be signed by one of its Vice Presidents or Assistant Vice
Presidents as of the day and year first above written.
LYONDELL CHEMICAL COMPANY
By /s/ ROBERT T. BLAKELY
-------------------------------------
Robert T. Blakely
Executive Vice President and
Chief Financial Officer
EQUISTAR CHEMICALS, LP
By /s/ EUGENE R. ALLSPACH
------------------------------------
Eugene R. Allspach
President and Chief Operating Officer
THE CHASE MANHATTAN BANK
Trustee
By /s/ MAURI J. COWEN
------------------------------------
Mauri J. Cowen
Vice President and Trust Officer
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