Fourth Supplemental Indenture (this “Fourth Supplemental Indenture”), dated as of December 20, 2007, among each of LyondellBasell Finance Company, LBI Acquisition LLC, LBIH LLC, LyondellBasell Netherlands Holdings B.V., Lyondell Refining I LLC,...
Exhibit
4.4(d)
Fourth
Supplemental Indenture (this “Fourth Supplemental
Indenture”), dated as of December 20, 2007, among each of LyondellBasell
Finance Company, LBI Acquisition LLC, LBIH LLC, LyondellBasell Netherlands
Holdings B.V., Lyondell Refining I LLC, Lyondell Chemical Company, Lyondell LP3
Partners, LP, Lyondell Petrochemical L.P. Inc., Houston Refining LP, Equistar
Chemicals, LP, Lyondell Europe Holdings Inc., Lyondell Chemical Products Europe
LLC, Lyondell Chimie France LLC, Millennium Specialty Chemicals Inc., Millennium
Petrochemicals Inc., Lyondell Chemical Technology, L.P., Lyondell Chemical
Technology 1 Inc., Lyondell Refining Company LLC, Lyondell Houston Refinery
Inc., Lyondell Chemical Nederland, Ltd., Lyondell-Equistar Holdings Partners,
Lyondell (Pelican) Petrochemical L.P.1, Inc., Lyondell LP4 Inc., Lyondell LP3
GP, LLC, Millennium Petrochemicals Partners, LP, Millennium US Op Co, LLC,
Millennium America Inc., Millennium America Holdings Inc., Millennium Worldwide
Holdings I Inc., Millennium Chemicals Inc., Millennium Petrochemicals GP LLC and
Lyondell Chemical Technology Management, Inc., as Guarantors (collectively, the
“Guaranteeing
Subsidiaries”), and The Bank of New York, a national banking association,
as trustee under the Indenture referred to below (the “Trustee”).
W I T N E
S S E T H
WHEREAS,
Basell AF S.C.A. (formerly ▇▇▇▇ AF S.àr.l.), a company incorporated under the
laws of The Grand Duchy of Luxembourg (the “Company”), each of the
Guarantors that are a signatory thereto, as Guarantors (the “Original Guaranteeing
Subsidiaries”), The Bank of New York, as Trustee, Registrar, Paying
Agent, Transfer Agent and Listing Agent, ABN AMRO Bank N.V., as Security Agent,
and AIB/BNY Fund Management (Ireland) Limited, as Irish Paying Agent, have
heretofore executed and entered into an indenture dated as of August 10, 2005
(as supplemented by a supplemental indenture dated as of February 2, 2006 by and
among the Guarantors that are a signatory thereto and the Trustee, a second
supplemental indenture dated as of May 11, 2007 by and among the Guarantors that
are a signatory thereto and the Trustee and a third supplemental indenture dated
as of July 26, 2007 by and among the Company, the Guarantors that are a
signatory thereto and the Trustee, the “Indenture”) providing for the
issuance of an aggregate principal amount of $615,000,000 of the Company’s
83/8% Senior
Notes due 2015 (the “Dollar
Notes”) and €500,000,000 of the Company’s 83/8% Senior
Notes due 2015 (together with the Dollar Notes, the “Notes”); and
WHEREAS,
Section 4.19 of the Indenture provides that the Company shall cause each
Restricted Subsidiary of the Company that, after the Issue Date, guarantees the
Senior Secured Credit Facilities (or any facility refinancing or replacing such
facilities) to execute and deliver to the Trustee a supplemental indenture
pursuant to which such Restricted Subsidiary shall guarantee payment of the
Notes on the same terms and subject to the same conditions and limitations
as those set forth in the Indenture; and
WHEREAS,
on December 20, 2007, each of
the Guaranteeing Subsidiaries guaranteed a credit facility entered into
by and among the Company, BIL Acquisition Holdings Limited, Basell Holdings
B.V., Basell Finance Company B.V. and Basell Germany Holdings GmbH, as the
Borrowers, the guarantors and the other credit parties (if any) party thereto
from time to time, the lenders signatory thereto from time to time, Citicorp
North America, Inc., as Administrative Agent, Swing Line Lender and Collateral
Agent, and Citigroup Global Markets Inc., ▇▇▇▇▇▇▇ Sachs Credit Partners, L.P.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ABN AMRO Incorporated
and UBS Securities LLC, as joint lead arrangers and joint bookrunners, which
facility will be used, inter
alia, to refinance the Senior Secured Credit Facilities;
NOW
THEREFORE, in consideration of the foregoing, each of the Guaranteeing
Subsidiaries and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:
1.
Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
2.
Agreement to Be Bound. Each Guaranteeing Subsidiary hereby becomes a party to
the Indenture as a Guarantor and as such will have all of the rights and be
subject to all of the obligations and agreements of a Guarantor under the
Indenture. Each Guaranteeing Subsidiary agrees to be bound by all of the
provisions of the Indenture applicable to a Guarantor and to perform all of the
obligations and agreements of a Guarantor under the Indenture.
3.
Agreement to Guarantee. Each Guaranteeing Subsidiary hereby, jointly and
severally with each Original Guaranteeing Subsidiary, each subsidiary of the
Company that issued a Guarantee of the Notes on February 2, 2006 and each
subsidiary of the Company that issued a Guarantee of the Notes on May 11, 2007,
unconditionally and irrevocably guarantees, on a senior subordinated basis to
each Holder of a Note (including any Additional Notes upon issuance in
accordance with Section 2.18 of the Indenture) authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and enforcement of the Indenture, the Notes or the Obligations of
the Company or any other Guarantors to the Holders or the Trustee thereunder or
under the Indenture, that: (a) the principal of, premium, if any, and interest
on the Notes (and any interest accrued pursuant to Section 2.12 of the Indenture
or Supplemental Interest accrued pursuant to Section 4.19(c) of the Indenture
payable thereon) shall be duly and punctually paid in full when due, whether at
maturity, upon redemption at the option of the Holders pursuant to the
provisions of the Notes relating thereto, by acceleration or otherwise, and
interest on the overdue principal and (to the extent permitted by law) interest,
if any, on the Notes and all other obligations of the Company or the Guarantors
to the Holders or the Trustee hereunder or thereunder (including amounts due the
Trustee under Section 7.07 of the Indenture) and all other payment obligations
shall be promptly paid in full or performed, all in accordance with the terms of
the Indenture and thereof and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, the same shall be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at maturity, by acceleration or
otherwise.
4.
Limitation on Guarantees.
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(a)
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General. The
obligations of each Guarantor under its Guarantee are limited to the
maximum amount that, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of
the obligations of such other Guarantor under its Guarantee or pursuant to
its contribution obligations under the Indenture, will result in the
obligations of such Guarantor under the Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under applicable
law.
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(b)
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Millennium Chemicals
Inc. The obligations of any of the Guaranteeing Subsidiaries that
is a Restricted Subsidiary (as defined in the indenture dated January 29,
1996 in respect of the Millennium America Inc. 75/8%
Senior Notes due 2026 (the “Millennium Notes”), as
supplemented by supplemental indentures dated February 15, 1996, December
1, 1997, December 3, 2000 and November 17, 2000, as in effect on the date
hereof (the “Millennium
Indenture”)) of Millennium Chemicals Inc. shall not exceed the
amount permitted to be Incurred (as defined in the Millennium Indenture)
as Funded Debt (as defined in the Millennium Indenture) as more fully set
forth in Section 1009 of the Millennium Indenture; provided, however, that upon the
refinancing in full of the Millennium Notes, this section 4(b) shall cease
to operate and have any force and effect as of the date of such
refinancing.
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(c)
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Dutch
Guarantors. The obligations under a Guarantee of a Guarantor
incorporated in The Netherlands (a “Dutch Guarantor”) or,
for the purpose of paragraph (i) below only, of a Subsidiary of such Dutch
Guarantor will not apply to the extent that it would result in the
Guarantee given by that Dutch
Guarantor:
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i.
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constituting
unlawful financial assistance within the meaning of Section 2:98c or
2:207c of the Dutch Civil Code (Burgerlijk Wetboek);
or
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ii.
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conflicting
with Section 2:7 of the Dutch Civil Code (Burgerlijk
Wetboek).
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(d)
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Financial
Assistance. Notwithstanding the foregoing each Guarantor
is not guaranteeing any liabilities which would result in, and the Trustee
and the holders of Notes waive their rights to enforce each Guarantee to
the extent and as long as such enforcement would result in, the relevant
Guarantor not complying with any applicable financial assistance
rules.
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5.
Ratification of Indenture; fourth Supplemental Indenture Is Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Fourth Supplemental Indenture shall form a part
of the Indenture for all purposes, and every Holder of a Note heretofore or
hereafter authenticated and delivered shall be bound hereby.
6.
Governing Law. THIS FOURTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Each of the
parties hereto agrees to submit to the non-exclusive jurisdiction of the
competent courts of the State of New York in any action or proceeding arising
out of or relating to this Fourth Supplemental Indenture.
7.
Duplicate Originals. All parties may sign any number of copies of this Fourth
Supplemental Indenture. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
8. Effect
of Headings. The Section headings herein are for convenience only and shall not
affect the construction hereof.
9. The
Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Fourth Supplemental Indenture or
for or in respect of the recitals contained herein, all of which recitals are
made solely by each Guaranteeing Subsidiary.
(Signature
page follows.)
IN
WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
LYONDELLBASELL
FINANCE COMPANY
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
Title:
LBI
ACQUISITION LLC
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
Title:
LBIH
LLC
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
Title:
BASELL
NETHERLANDS HOLDINGS B.V.
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
Title:
LYONDELL
REFINING I LLC
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
CHEMICAL COMPANY
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELLPOTECHLP,
INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
LP3 PARTNERS, LP
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
PETROCHEMICAL L.P. INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
HOUSTON
REFINING LP
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
EQUISTAR
CHEMICALS, LP
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
EUROPE HOLDINGS INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
CHEMICAL PRODUCTS EUROPE LLC
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
CHIMIE FRANCE LLC
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
MILLENNIUM
SPECIALTY CHEMICALS INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
MILLENNIUM
PETROCHEMICALS INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
CHEMICAL TECHNOLOGY, L.P.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
CHEMICAL TECHNOLOGY 1 INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
REFINING COMPANY LLC
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
HOUSTON REFINERY INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
CHEMICAL NEDERLAND, LTD.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL-EQUISTAR
HOLDINGS PARTNERS
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
(PELICAN) PETROCHEMICAL L.P.1, INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
LP4 INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
LP3 GP, LLC
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
MILLENNIUM
PETROCHEMICALS PARTNERS, LP
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
MILLENNIUM
US OP CO, LLC
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
MILLENNIUM
AMERICA INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
MILLENNIUM
AMERICA HOLDINGS INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
MILLENNIUM
WORLDWIDE HOLDINGS I INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
MILLENNIUM
CHEMICALS INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
MILLENNIUM
PETROCHEMICALS GP LLC
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
LYONDELL
CHEMICAL TECHNOLOGY MANAGEMENT, INC.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇’▇▇▇▇▇
Name:
Title:
THE
BANK OF NEW YORK, as Trustee
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
Title: