equ8k-120607exhibit46b.htm


     

     

    Exhibit
      4.6(b)

     

     

     

     

    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

     

     

    __________________________

     

     

    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

     

     

    
      	
              1.1  

            	
              Capitalized
                terms used herein 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
                Supplemental Indenture. The recital contained in the third paragraph
                of
                the recitals herein is deemed to be that of the
                Issuers.

            


    

     

     

    SECTION
      TWO

     

     

    
      	
              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:

            


    

     

    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.

     

     

    
      	
              2.8  

            	
              Section
                6.01 of the Indenture shall be amended to read in its entirety as
                follows:

            


    

     

    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.”

     

     

    
      	
              2.9  

            	
              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.

            


    

     

     

    
      	
              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.

            


    

     

     

    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, D. F. King & 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.

     

    


    


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    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/
          Charles L. Hall

                      
          Name:   Charles L. Hall

             Title:    
Vice
          President, Controller

                            
          and Chief Accounting Officer

         

         

        EQUISTAR
          FUNDING CORPORATION

        
          


          By:           /s/
            Gerald A. O'Brien, Vice President

                         
            Name:   Gerald A. O'Brien

                         
Title:     Vice President, General

                                        Counsel
            and Secretary

           

        

        


        THE
          BANK
          OF NEW YORK, as Trustee

         

        By:           /s/
          Robert A. Massimillo

        Name:  Robert
          A.
          Massimillo

        Title:    Vice
          President