DATED DECEMBER 20, 2007 BASELL AF S.C.A. as the Company THE COMPANIES NAMED IN SCHEDULE 1 as Original Obligors CITIBANK, N.A. as Senior Agent and Security Agent MERRILL LYNCH CAPITAL CORPORATION as Interim Facility Agent CITIBANK, N.A. as ABL Agent...
EXHIBIT 4.10
DATED DECEMBER 20, 2007
BASELL AF
S.C.A.
as the
Company
THE
COMPANIES NAMED IN SCHEDULE 1
as
Original Obligors
CITIBANK,
N.A.
as Senior
Agent and Security Agent
XXXXXXX
XXXXX CAPITAL CORPORATION
as
Interim Facility Agent
CITIBANK,
N.A.
as ABL
Agent
THE BANK
OF NEW YORK
as High
Yield Notes Trustee
and
CERTAIN
ENTITIES
as
Original Hedging Banks,
ARCO
Notes Trustee, Equistar Notes Trustee,
Investors,
Intercompany Lenders and Intercompany Borrowers
TABLE
OF CONTENTS
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Clause
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Page
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1.
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DEFINITIONS
AND INTERPRETATION
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1
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2.
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RANKING
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23
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3.
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ABL
INTERCREDITOR MATTERS
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24
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4.
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HEDGING
DEBT
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24
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5.
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OTHER
SENIOR DEBT
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25
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6.
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HIGH
YIELD NOTES DEBT
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27
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7.
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INVESTOR
DEBT
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29
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8.
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INTERCOMPANY
DEBT
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30
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9.
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REPRESENTATIONS
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31
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10.
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UNDERTAKINGS
OF THE OBLIGORS
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31
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11.
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PERMITTED
PAYMENTS
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34
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12.
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SUSPENSION
OF PERMITTED PAYMENTS
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35
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13.
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TURNOVER
OF NON-PERMITTED PAYMENTS
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37
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14.
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SUBORDINATION
ON INSOLVENCY
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39
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15.
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FAILURE
OF TRUSTS
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42
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16.
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PROTECTION
OF SUBORDINATION
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42
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17.
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PRIORITY
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45
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18.
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RESTRICTIONS
ON ENFORCEMENT
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46
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19.
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PERMITTED
ENFORCEMENT
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47
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20.
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APPLICATION
OF RECOVERIES
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49
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21.
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ENFORCEMENT
OF SECURITY
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54
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22.
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OPTION
TO XXXXXXXX
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00
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00.
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PRESERVATION
OF DEBT
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58
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24.
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SHARING
AMONG CERTAIN PARTIES
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59
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25.
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SUBROGATION
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62
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26.
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CONSENTS
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63
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27.
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ROLE
OF THE SECURITY AGENT
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64
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28.
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TRUSTEES
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71
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29.
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INFORMATION
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75
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30.
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POWER
OF ATTORNEY
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76
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31.
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EXPENSES
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78
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32.
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CHANGES
TO THE PARTIES
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78
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33.
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NOTICES
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83
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34.
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PARTIAL
INVALIDITY
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84
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35.
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REMEDIES
AND WAIVERS
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84
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36.
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COUNTERPARTS
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84
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37.
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AMENDMENTS
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85
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38.
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GOVERNING
LAW
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85
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39.
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ENFORCEMENT
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86
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SCHEDULE
1 THE ORIGINAL OBLIGORS
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87
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SCHEDULE
2 THE ORIGINAL HEDGING BANKS
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89
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SCHEDULE
3 THE ORIGINAL INVESTORS
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90
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SCHEDULE
4 THE ORIGINAL INTERCOMPANY LENDERS AND BORROWERS
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91
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SCHEDULE
5 FORM OF ACCESSION AGREEMENT
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95
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SCHEDULE
6 EXISTING LYONDELL DEBT SECURITY
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98
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SCHEDULE
7 HIGH YIELD NOTES MAJOR TERMS
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98
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SCHEDULE
8 HIGH YIELD NOTES GUARANTEE MATURITY PROVISIONS
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101
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SCHEDULE
9 SECURITY AGENCY PROVISIONS
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102
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SCHEDULE
10 SECOND LIEN NOTES MAJOR TERMS
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106
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SCHEDULE
11 UNSECURED SENIOR NOTES MAJOR TERMS
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107
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EXHIBIT
1 ABL INTERCREDITOR AGREEMENT
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-i-
THIS AGREEMENT is dated
December 20, 2007 and made between:
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1.
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BASELL AF S.C.A., a
société en commandite par actions, whose registered office is at 00-00,
Xxxxxx Xxxxxx Xxxxxxxx, X-0000 Xxxxxxxxxx, registered with the Luxembourg
register of commerce and companies under number B 107545 and having a
corporate capital of €50,000,024 (the “Company”);
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2.
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THE SUBSIDIARIES of the
Company listed in Schedule 1 (The Original Obligors)
as original borrowers under the Senior Facilities (the “Original Borrowers”) or
as original guarantors of the Senior Facilities (together with the
Company, the “Original
Guarantors”);
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3.
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CITIBANK, N.A. as agent
of the other Senior Finance Parties (the “Senior
Agent”);
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4.
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CITIBANK, N.A. as
security trustee and collateral agent for the Senior Secured Parties, the
High Yield Notes Finance Parties and the High Yield Noteholders (the
“Security
Agent”);
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5.
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XXXXXXX XXXXX CAPITAL
CORPORATION as agent of the other Interim Facility Finance Parties
(the “Interim Facility
Agent”);
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6.
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CITIBANK, N.A. as agent
of the ABL Finance Parties (the “ABL
Agent”);
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7.
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THE BANK OF NEW YORK in
its capacity as the High Yield Notes Trustee (the “High Yield Notes
Trustee”);
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8.
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THE TRUSTEE FOR THE SECOND LIEN
NOTEHOLDERS in its capacity as the Second Lien Notes Trustee, on
its accession to this Agreement (the “Second Lien Notes
Trustee”);
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9.
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THE TRUSTEE FOR THE UNSECURED
SENIOR NOTEHOLDERS in its capacity as the Unsecured Senior Notes
Trustee, on its accession to this Agreement (the “Unsecured Senior Notes
Trustee”);
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10.
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THE BANK OF NEW YORK in its capacity as
the Arco Notes Trustee (the “Arco Notes
Trustee”);
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11.
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THE BANK OF NEW YORK in its capacity as
the Equistar Notes Trustee (the “Equistar Notes Trustee”);
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12.
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THE FINANCIAL
INSTITUTIONS (if any) listed in Schedule 2 (The Original Hedging Banks)
as original hedging banks (the “Original Hedging
Banks”);
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13.
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THE INVESTORS listed in
Schedule 3 (The Original
Investors) as original investors (the “Original Investors”);
and
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14.
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THE SUBSIDIARIES of the
Company listed in Schedule 4 (The Original Intercompany
Lenders and Borrowers) as original intercompany lenders (together
with the Company, the “Original Intercompany
Lenders”; or as original intercompany borrowers (together with the
Company, the “Original
Intercompany Borrowers”).
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IT IS AGREED as
follows:
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1.
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DEFINITIONS
AND INTERPRETATION
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1.1
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Definitions
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In this
Agreement:
“ABL Facility” means the
revolving credit facility made available under the ABL Agreement.
“ABL Agreement” means a
revolving credit facility dated on or about the date of this Agreement between,
among others Target and certain subsidiaries as borrowers and guarantors and the
ABL Finance Parties.
“ABL Collateral” means the
assets subjected to liens, or purported to be subject to liens, in favour of the
ABL Finance Parties pursuant to the ABL Finance Documents.
“ABL Debt” means all present
and future moneys, debts and liabilities and other Obligations (as defined in
the ABL Agreement) due, owing or incurred by any Obligor to any ABL Finance
Party under or in connection with any ABL Finance Document (in each case,
whether alone or jointly, or jointly and severally, with any other person,
whether actually or contingently, and whether as principal, surety or otherwise)
together with any related Additional Debt.
“ABL Declared Default” means an
ABL Default which has resulted in the ABL Agent exercising any of its rights to
accelerate the principal of the ABL Debt or the principal being automatically
accelerated in each case under section 7.01 of the ABL Agreement.
“ABL Default” means an Event of
Default under and as defined in the ABL Agreement.
“ABL Discharge Date” means the
date on which the Security Agent is satisfied (acting reasonably) that all ABL
Debt (other than contingent indemnification obligations) has been fully and
irrevocably paid or discharged and all commitments of the ABL Finance Parties in
respect of the ABL Debt have expired or been cancelled.
“ABL Finance Documents” means
the Loan Documents as defined in the ABL Agreement.
“ABL Finance Parties” means
the Agents and the Lenders as defined in the ABL
Agreement.
“ABL Intercreditor Agreement”
means the Intercreditor Agreement, dated on or about the date hereof, between
the Security Agent, the ABL Agent, LyondellBasell Receivables I, LLC, Lyondell
Chemical Company and the other parties thereto.
“ABL Lenders” means the lenders
under the ABL Agreement.
“Acceleration Date” means the
date (if any) of a Senior Declared Default or, following the Senior Discharge
Date, a High Yield Notes Declared Default.
“Accession Agreement” means an
agreement substantially in the form set out in Schedule 5 (Form of Accession
Agreement).
“Acquisition” means the
acquisition of the Target pursuant to the Merger Agreement.
“Acquisition Closing Date”
means the date on which the Acquisition is completed.
“Additional Debt” means, in
relation to any Debt, any money, debt or liability due, owing or incurred under
or in connection with:
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(a)
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any
refinancing (other than (i) of the Interim Facility Debt from the proceeds
of an issuance of Second Lien Notes or Unsecured Senior Notes and (ii)
with respect to the High Yield Notes Debt, out of the proceeds of
Permitted Junior Securities at the prior written election of the Company),
deferral or extension of that Debt;
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(b)
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any
further advance which may be made under any document, agreement or
instrument supplemental to any relevant Finance Document together with any
related interest, fees and costs;
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-2-
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(c)
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any
claim for interest accruing on or after the filing of any petition in
bankruptcy or for reorganisation relating to the relevant Obligor at the
rate specified in the documentation with respect thereto whether or not a
claim for post filing interest is allowed in such
proceeding;
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(d)
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any
claim for damages or restitution in the event of rescission of that Debt
or otherwise in connection with any relevant Finance
Document;
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(e)
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any
claim against any Obligor or Intercompany Borrower flowing from any
recovery by an Obligor or Intercompany Borrower or any liquidator,
receiver, administrator, administrative receiver, compulsory manager or
other similar officer of a payment or discharge in respect of that Debt on
the grounds of preference or otherwise;
and
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(f)
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any
amount (such as post-insolvency interest) which would be included in any
of the above but for any discharge, non-provability, unenforceability or
non-allowability of the same in any insolvency or other
proceedings.
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“Affiliate” means, in relation
to any person, a Subsidiary of that person or a Holding Company of that person
or any other Subsidiary of that Holding Company.
“Arco Noteholders” means the
holders of the Arco Notes.
“Arco Notes” means $100,000,000
10 1/4% Debentures due 2010 and the $225,000,000 9.8% Debentures due 2020 issued
by the Arco Chemical Company (as predecessor to Lyondell Chemical Company)
pursuant to the Arco Notes Indenture.
“Arco Notes Collateral” means
all property and assets subject to the Arco Notes Security
Documents.
“Arco Notes Debt” means all
present and future moneys, debts and liabilities due, owing or incurred by
Lyondell Chemical Company to any Arco Notes Finance Party or Arco Noteholder
under or in connection with the Arco Notes (in each case, whether alone or
jointly, or jointly and severally, with any other person, whether actually or
contingently, and whether as principal, surety or otherwise).
“Arco Notes Discharge Date”
means the date on which all Arco Notes Debt has been irrevocably and
unconditionally discharged in full.
“Arco Notes Finance Documents”
means the Arco Notes, the Arco Notes Indenture, this Agreement and the Arco
Notes Security Documents.
“Arco Notes Finance Parties”
means the Arco Notes Trustee (on behalf of itself and the Arco Noteholders) and
the Security Agent.
“Arco Notes Indenture” means
the indenture governing the Arco Notes dated as of June 15,1988 as supplemented
by a Supplemental Indenture dated January 5, 2000.
“Arco Notes Recoveries” means
the aggregate of all moneys and other assets received or recovered from time to
time by any Arco Notes Finance Party or Arco Noteholder under or in connection
with any Arco Notes Security Documents.
“Arco Notes Security Documents”
means any of the security agreements and other documents identified in Schedule
6 (Existing Lyondell Debt
Security) under the heading “Arco Notes Security Documents”.
“Arco Notes Trustee” means any
entity acting as trustee under the Arco Notes and which accedes to this
Agreement pursuant to Clause 32.7 (Accession of Arco Notes
Trustee).
-3-
“Authorisation” means an
authorisation, consent, approval, resolution, licence, permit, exemption,
filing, notarisation or registration.
“Basell Funding” means Basell
Funding S.à x.x., a société à
responsabilité limitée whose registered office is at 00-00, Xxxxxx Xxxxxx
Xxxxxxxx, X-0000 Xxxxxxxxxx, registered with the Luxembourg register of commerce
and companies under number B 107544 and having a corporate capital of
€50,000,024.
“Basell Holdings” means Basell
Holdings B.V. with registration number 24344658.
“BI S.à.x.x.” means BI S.à
x.x., a société à
responsabilité limitée whose registered office is at 00-00, Xxxxxx Xxxxxx
Xxxxxxxx, X-0000 Xxxxxxxxxx, registered with the Luxembourg register of commerce
and companies under number B 107544 and having a corporate capital of
€50,000,024.
“Business Day” means any day
other than a Saturday, Sunday or other day on which commercial banks are
authorized to close under the Laws of, or are in fact closed in, the State of
New York and:
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|
(a)
|
if
such day relates to any fundings, disbursements, settlements and payments
in US dollars, any day in which dealings in deposits in US dollars are
conducted by and between banks in the London interbank eurodollar market;
or
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(b)
|
(if
such day relates to any fundings, disbursements, settlements and payments
in euro) any day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer payment system is open for the settlement of
payments in euro.
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“Charged Assets” means the
assets over which Security is expressed to be created pursuant to any Security
Document.
“Creditor” means each Senior
Secured Party and any other Junior Creditor.
“Debt” means any Senior Debt,
Hedging Debt, Interim Facility Debt, Second Lien Notes Debt, Unsecured Senior
Notes Debt, High Yield Notes Debt, High Yield Notes On-Loan Debt, High Yield
Notes Guarantee Debt, Investor Debt and Intercompany Debt.
“Enforcement Action” means in
relation to any Debt, any action of any kind to:
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(a)
|
demand
payment, declare prematurely due and payable or otherwise seek to
accelerate payment of or place on demand all or any of that
Debt;
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(b)
|
recover
all or any of that Debt (including by exercising any set-off, save as
required by law);
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|
|
(c)
|
exercise
or enforce any right against any surety or any other right under any other
document, agreement or instrument in relation to (or given in support of)
all or any of that Debt (including under the Security
Documents);
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(d)
|
petition
for (or take or support any other step which may lead to) an Insolvency
Event in relation to any Obligor or Intercompany Borrower;
or
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(e)
|
start
any legal proceedings against any Obligor or Intercompany
Borrower.
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“Equistar Noteholders” means
the holders of the Equistar Notes.
“Equistar Notes” means
$150,000,000 7.55% Senior Notes due 2026 issued by the Lyondell Petrochemical
Company pursuant to the Equistar Notes Indenture together with any other series
of notes created under the Equistar Notes Indenture.
-4-
“Equistar Notes Collateral”
means all property and assets subject to the Equistar Notes Security
Documents.
“Equistar Notes Debt” means all
present and future moneys, debts and liabilities due, owing or incurred by
Lyondell Petrochemical Company to any Equistar Notes Finance Party or Equistar
Noteholder under or in connection with the Equistar Notes (in each case, whether
alone or jointly, or jointly and severally, with any other person, whether
actually or contingently, and whether as principal, surety or
otherwise).
“Equistar Notes Discharge Date”
means the date on which all Equistar Notes Debt has been irrevocably and
unconditionally discharged in full.
“Equistar Notes Finance
Documents” means the Equistar Notes, the Equistar Notes Indenture, this
Agreement and the Equistar Notes Security Documents.
“Equistar Notes Finance
Parties” means the Equistar Notes Trustee (on behalf of itself and the
Equistar Noteholders) and the Security Agent.
“Equistar Notes Indenture”
means the indenture governing the Equistar Notes dated as of January 29, 1996 as
supplemented by Supplemental Indentures dated February 15, 1996, December 1,
1997, November 3, 2000 and November 17, 2000.
“Equistar Notes Recoveries”
means the aggregate of all moneys and other assets received or recovered from
time to time by any Equistar Notes Finance Party or Equistar Noteholder
under or in connection with any Equistar Notes Security Documents.
“Equistar Notes Security
Documents” means any of the security agreements and other documents
identified in Schedule 6 (Existing Lyondell Debt
Security) under the heading “Equistar Notes Security
Documents”.
“Equistar Notes Trustee” means
any entity acting as trustee under the Equistar Notes and which accedes to this
Agreement pursuant to Clause 32.8 (Accession of Equistar Notes
Trustee).
“Fee Letter” means any letter
or letters dated on or about the date of this Agreement between the Security
Agent and the Company setting out the fee referred to in Clause 27.16 (Security agency
fee).
“Final Discharge Date” means
the later of the Senior Discharge Date and the High Yield Notes Discharge
Date.
“Finance Documents” means the
Senior Finance Documents, the Hedging Documents, the Interim Facility Finance
Documents, the Second Lien Notes Finance Documents, the Unsecured Senior Notes
Documents, the High Yield Notes Finance Documents, the Investor Documents and
the Intercompany Documents.
“Financial Indebtedness” means
Indebtedness as defined in any Senior Agreement.
“General Collateral” means all
property or assets subject to the Security Documents other than Arco Notes
Collateral, Equistar Notes Collateral and High Yield Notes
Collateral.
“Group” means the Company and
its Subsidiaries for the time being, including, on and from the Acquisition
Closing Date, the Target Group.
“Hedging Bank”
means:
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(a)
|
any
Original Hedging Bank; and
|
-5-
|
|
(b)
|
any
Hedge Bank (as defined in the Senior Facility Agreement) or any other
person which in each case has become a Hedging Bank in accordance with
Clause 32.3 (Accession
of Hedging Banks) or Clause 32.4 (Assignments and transfers by
Hedging Banks),
|
which in
each case has not ceased to be a Hedging Bank in accordance with this
Agreement.
“Hedging Debt” means all
present and future moneys, debts and liabilities due, owing or incurred by any
Obligor to any Hedging Bank under or in connection with any Hedging Document (in
each case, whether alone or jointly, or jointly and severally, with any other
person, whether actually or contingently, and whether as principal, surety or
otherwise) together with any related Additional Debt.
“Hedging Document” means each
Swap Contract and each Treasury Services Agreement (in each case as defined in
the Senior Facility Agreement) entered into or to be entered into between an
Obligor and a Hedging Bank listed in Schedule 2 (The Original Hedging Banks)
or under Clause 32.2 (Accession of Hedging
Banks).
“Hedging Recoveries” means the
aggregate of all moneys and other assets received or recovered from time to time
by any Hedging Bank under or in connection with any Hedging Debt; provided,
however, that for purposes of Section 13.1 (Turnover), it shall mean
Hedging Recoveries as so defined under or in connection with the Security
Documents.
“High Yield Noteholders” means
the holders of the High Yield Notes.
“High Yield Notes” means
$615,000,000 8 3/8% Senior Notes due 2015 and the €500,000,000 8 3/8% Senior
Notes due 2015 issued by the Company pursuant to the High Yield Notes
Indenture.
“High Yield Notes Collateral”
means all property or assets subject to the High Yield Notes Security
Documents.
“High Yield Notes Debt” means
all present and future moneys, debts and liabilities due, owing or incurred by
the Company to any High Yield Notes Finance Party or High Yield Noteholder under
or in connection with the High Yield Notes (in each case, whether alone or
jointly, or jointly and severally, with any other person, whether actually or
contingently, and whether as principal, surety or otherwise), together with any
related Additional Debt provided, however, that the definition of “High Yield
Notes Debt” shall not include the High Yield Notes Trustee Amounts.
“High Yield Notes Declared
Default” means a High Yield Notes Default which has resulted in the High
Yield Notes Finance Parties accelerating all amounts due under the High Yield
Notes.
“High Yield Notes Default”
means an event of default under the High Yield Notes Indenture.
“High Yield Notes Discharge
Date” means the date on which all High Yield Notes Guarantee Debt has
been irrevocably and unconditionally discharged in full.
“High Yield Notes Finance
Documents” means the High Yield Notes, the High Yield Notes Indenture
(including the High Yield Notes Guarantees), this Agreement, the High Yield
Notes Security Documents and the High Yield Notes On-Loan
Documents.
“High Yield Notes Finance
Parties” means the High Yield Notes Trustee (on behalf of itself and the
High Yield Noteholders) and the Security Agent.
“High Yield Notes Guarantee
Debt” means all present and future moneys, debts and liabilities due,
owing or incurred by any High Yield Notes Guarantor to any High Yield Notes
Finance Party or High Yield Noteholder under or in connection with any High
Yield Notes Guarantee (in each case, whether alone or jointly, or jointly and
severally, with any other person, whether actually or contingently, and whether
as principal, surety or otherwise), together with any related Additional Debt
provided, however, that the definition of “High Yield Notes Guarantee Debt”
shall not include the High Yield Notes Trustee Amounts.
-6-
“High Yield Notes Guarantee Maturity
Provisions” means the terms substantially as set out in Schedule 8 (High Yield Notes Guarantee Maturity
Provisions).
“High Yield Notes Guarantee
Recoveries” means the aggregate of all moneys and other assets received
or recovered (whether by exercising any set-off or otherwise) from time to time
by any High Yield Notes Finance Party or High Yield Noteholder under or in
connection with the High Yield Notes Guarantee Debt provided, however, that the
definition of “High Yield Notes Guarantee Recoveries” shall not include the High
Yield Notes Trustee Amounts.
“High Yield Notes Guarantees”
means the guarantees by the High Yield Notes Guarantors of the obligations of
the Company under the High Yield Notes and the High Yield Notes Indenture (which
guarantees except for any High Yield Notes Trustee Amounts owing to the High
Yield Notes Trustee are subordinated in right of payment to the Senior Debt and
the ABL Debt in accordance with this Agreement).
“High Yield Notes Guarantors”
means Basell Funding and each other Subsidiary of the Company that becomes a
guarantor of the High Yield Notes in accordance with the High Yield Notes
Indenture.
“High Yield Notes Indenture”
means the indenture governing the High Yield Notes dated August 10, 2005 as
supplemented by the First Supplemental Indenture dated February 2,
2006.
“High Yield Notes Major Terms”
means the terms set out in Schedule 7 (High Yield Notes Major
Terms).
“High Yield Notes On-Loan”
means the loan of the proceeds of the High Yield Notes made by the Company to
Basell Holdings in accordance with paragraph (b) of Clause 6.1 (Issue of High Yield Notes and High
Yield Notes On-Loan Debt).
“High Yield Notes On-Loan Debt”
means all present and future moneys, debts and liabilities due, owing or
incurred by Basell Holdings to any holder of the High Yield Notes On-Loan under
or in connection with the High Yield Notes On-Loan, (in each case, whether alone
or jointly, or jointly and severally, with any other person, whether actually or
contingently, and whether as principal, surety or otherwise) together with any
related Additional Debt.
“High Yield Notes On-Loan Discharge
Date” means the date on which all High Yield Notes On-Loan Debt has been
irrevocably and unconditionally discharged in full.
“High Yield Notes On-Loan
Documents” means all documents, agreements and instruments evidencing the
High Yield Notes On-Loan.
“High Yield Notes On-Loan
Recoveries” means the aggregate of all moneys and other assets received
or recovered (whether by exercising any set-off or otherwise) from time to time
under or in connection with the High Yield Notes On-Loan Debt.
“High Yield Notes Recoveries”
means the aggregate of all moneys and other assets received or recovered
(whether by exercising any set-off or otherwise) from time to time by any High
Yield Notes Finance Party or High Yield Noteholder under or in connection with
the High Yield Notes Finance Documents provided, however, that the definition of
“High Yield Notes Recoveries” shall not include the High Yield Notes Trustee
Amounts.
“High Yield Notes Security
Documents” means any of the security agreements and other documents
identified in Schedule 7 (High
Yield Notes Major Terms) under the heading “High Yield Notes
Security”.
“High Yield Notes Standstill
Period” has the meaning given to it in Clause 19.3 (High Yield Notes Standstill
Period).
-7-
“High Yield Notes Standstill Start
Date” has the meaning given to it in Clause 19.3 (High Yield Notes Standstill
Period).
“High Yield Notes Stop Notice”
means a notice delivered under paragraph (a)(ii)(B) of Clause 12.2 (Suspension of Permitted High Yield
Notes Guarantee Payments and Permitted High Yield Notes On-Loan Payments)
specifying the relevant Senior Default and that Permitted High Yield Notes
On-Loan Payments and Permitted High Yield Notes Guarantees Payments are being
suspended.
“High Yield Notes Trustee”
means any entity acting as trustee under any issue of the High Yield Notes and
which accedes to this Agreement pursuant to Clause 32.9 (Accession of High Yield Notes
Trustee).
“High Yield Notes Trustee
Amounts” means amounts payable to the High Yield Notes Trustee under this
Agreement, any indemnity provisions for costs and expenses in favour of the High
Yield Notes Trustee contained in the High Yield Notes Indenture and under the
provisions of the High Yield Notes Guarantees, all compensation for services
provided by the High Yield Notes Trustee which is payable to the High Yield
Notes Trustee pursuant to this Agreement, the High Yield Notes Indenture and the
High Yield Notes Guarantees and all out-of-pocket costs and expenses properly
incurred by the High Yield Notes Trustee in carrying out its duties or
performing any service pursuant to the terms of the High Yield Notes Indenture,
the High Yield Notes Guarantees and this Agreement, including, without
limitation (a) compensation for the costs and expenses of the collection by the
High Yield Notes Trustee of any amount payable to the High Yield Notes Trustee
for the benefit of the High Yield Noteholders, and (b) costs and expenses of the
High Yield Notes Trustee’s agents and counsel (but excluding (i) any payment in
relation to any unpaid costs and expenses incurred in respect of any litigation
by or on behalf of any High Yield Notes Trustee or any High Yield Noteholders
against any of the Senior Finance Parties and (ii) any payment made directly or
indirectly on or in respect of any amounts owing under any High Yield Notes
(including principal, interest, premium or any other amounts to any of the High
Yield Noteholders)).
“Holding Company” means, in
relation to a company, corporation or other legal entity, any other company,
corporation or other legal entity in respect of which the former company,
corporation or other legal entity is a Subsidiary.
“Insolvency Event”
means:
|
|
(a)
|
any
Key Company is unable or admits inability to pay its debts as they fall
due, suspends, or threatens to suspend, making payments on any of its
debts or, by reason of actual or anticipated financial difficulties,
commences negotiations with one or more of its creditors (other than the
Senior Lenders) with a view to a general rescheduling of any class of its
indebtedness;
|
|
|
(b)
|
a
moratorium is declared in respect of any indebtedness of any Key Company;
or
|
|
|
(c)
|
a
petition is filed for a receiving order or an assignment is made for the
general benefit of creditors of any Key Company which is incorporated in
Canada or any province or territory
thereof;
|
|
|
(d)
|
any
corporate action, legal proceedings or other procedure or step is taken in
relation to:
|
|
|
(i)
|
bankruptcy,
the suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, liquidation, insolvency, administration or reorganisation (by
way of voluntary arrangement, scheme of arrangement reorganisation, making
a proposal or otherwise) of any Key Company other than a solvent
liquidation or reorganisation of any member of the Group which is not an
Obligor;
|
-8-
|
|
(ii)
|
a
composition, compromise, assignment, relief or arrangement with any
creditor of any Key Company;
|
|
|
(iii)
|
the
appointment of a liquidator (other than in respect of a solvent
liquidation of a member of the Group which is not an Obligor), liquidator
in bankruptcy, receiver, interim receiver, administrative receiver,
trustee in bankruptcy, administrator, compulsory manager or other similar
officer in respect of any Key Company or any of its assets;
or
|
|
|
(iv)
|
the
enforcement of any Security over any assets of any Key
Company,
|
or any
analogous procedure or step is taken in any jurisdiction, provided that (d)
above shall not apply to any winding-up petition which is frivolous or vexatious
and is discharged, stayed or dismissed within 30 days of commencement or, if
earlier, the date on which it is advertised; and
|
|
(e)
|
in
respect of any U.S. Obligor:
|
|
(i)
|
it
makes a general assignment for the benefit of
creditors;
|
|
(ii)
|
it
commences a voluntary case or proceeding under any U.S. Bankruptcy
Law;
|
|
(iii)
|
an
involuntary case under any U.S. Bankruptcy Law is commenced against it and
is not controverted within 30 days or is not dismissed or stayed within 90
days after commencement of the case;
or
|
|
(iv)
|
an
order for relief or other order approving any case of proceeding is
entered under any U.S. Bankruptcy
Law.
|
“Instructing Group”
means:
|
|
(a)
|
until
the Senior Facility Discharge Date, in respect of Clause 21.4 (Authority of Security
Agent), the Senior Agent under the Senior Facility
Agreement;
|
|
|
(b)
|
until
the Senior Facility Discharge Date, in respect of any provision of this
Agreement other than Clause 21.4 (Authority of Security
Agent), the Senior Agent under the Senior Facility Agreement and,
prior to the Interim Facility Discharge Date, the Interim Facility Agent
under the Interim Facility
Agreement;
|
|
|
(c)
|
after
the Senior Facility Discharge Date and until the Interim Facility
Discharge Date, the Interim Facility Agent under the Interim Facility
Agreement;
|
|
|
(d)
|
after
the Senior Discharge Date and the Interim Facility Discharge Date and
until the Second Lien Notes Discharge Date, the Second Lien Notes Trustee
under the Second Lien Notes
Indenture;
|
|
|
(e)
|
after
the Senior Facility Discharge Date, the Interim Facility Discharge Date
and the Second Lien Notes Discharge Date and until the High
Yield Notes Discharge Date, in respect of Clause 21.4 (Authority of Security
Agent), the High Yield Notes
Trustee;
|
|
|
(f)
|
after
the Senior Facility Discharge Date, the Interim Facility Discharge Date
and the Second Lien Discharge Date until the Unsecured Senior Notes
Discharge Date, in respect of any provision of this Agreement other than
Clause 21.4 (Authority
of Security Agent), the Unsecured Senior Notes Trustee;
and
|
|
|
(g)
|
after
the Senior Discharge Date until the High Yield Notes Discharge Date, in
respect of any provision of this Agreement other than Clause 21.4 (Authority of Security
Agent), the High Yield Notes
Trustee.
|
-9-
“Instructing Second Lien Agent”
means the Interim Facility Agent under the Interim Facility Agreement until the
Interim Facility Discharge Date and, after the Interim Facility Discharge Date
until the Second Lien Notes Discharge Date, the Second Lien Notes
Trustee.
“Intercompany Borrower”
means:
|
|
(a)
|
any
Original Intercompany Borrower; and
|
|
|
(b)
|
any
member of the Group which has become an Intercompany Borrower in
accordance with Clause 32.15 (Assignments and transfers by
Intercompany Lenders and Intercompany Borrowers) or Clause 32.16
(Accession of
Intercompany Borrowers and Intercompany
Lenders),
|
which in
each case has not ceased to be an Intercompany Borrower in accordance with this
Agreement.
“Intercompany Debt” means all
present and future moneys, debts and liabilities due, owing or incurred by any
member of the Group which is an Obligor to any other member of the Group (in
each case, whether alone or jointly, or jointly and severally, with any other
person, whether actually or contingently, and whether as principal, surety or
otherwise) (other than Basell Sales and Marketing B.V., Basell Polylefins
Company B.V.B.A., Basell Capital Corporation, LyondellBasell Receivables I, LLC
and any other Securitization Entity (as defined in the Senior Facility
Agreement) together with any related Additional Debt, but excluding any High
Yield Notes On-Loan Debt provided that, without prejudice to any rights of any
Senior Party under this Agreement, any provisions herein with respect to
Intercompany Debt and the High Yield Notes and the High Yield Notes Finance
Parties and High Yield Noteholders shall only apply so far as the High Yield
Notes and the High Yield Notes Finance Parties and High Yield Noteholders are
concerned to subordinate the Intercompany Debt to the High Yield Notes On-Loan
Debt, the High Yield Notes Guarantee Debt and the High Yield Notes (not
including in respect of this proviso any Additional Debt in respect thereof that
is refinancing debt).
“Intercompany Documents” means
all documents, agreements and instruments evidencing any Intercompany
Debt.
“Intercompany Lender”
means:
|
|
(a)
|
any
Original Intercompany Lender; and
|
|
|
(b)
|
any
member of the Group which has become an Intercompany Lender in accordance
with Clause 32.15 (Assignments and transfers by
Intercompany Lenders and Intercompany Borrowers) or Clause 32.16
(Accession of
Intercompany Borrowers and Intercompany
Lenders),
|
which in
each case has not ceased to be an Intercompany Lender in accordance with this
Agreement.
“Intercompany Recoveries” means
the aggregate of all moneys and other assets received or recovered (whether by
exercising any set-off or otherwise) from time to time by any Intercompany
Lender under or in connection with any Intercompany Debt.
“Interest Period” means, in
relation to a particular loan under a Finance Document, each relevant interest
period provided for under such Finance Document.
“Interim Facility” means the
interim term loan facility made available under the Interim Facility
Agreement.
“Interim Facility Agreement”
means the $8,000,000,000 bridge loan agreement dated on or about the date of
this Agreement between, among others, the Company, LyondellBasell Finance
Company, as borrower, certain subsidiaries of the Company as guarantors and the
Interim Facility Finance Parties.
-10-
“Interim Facility Debt” means
all present and future moneys, debts and liabilities due, owing or incurred by
any Obligor to any Interim Facility Finance Party under or in connection with
any Interim Facility Finance Document (in each case, whether alone or jointly,
or jointly and severally, with any other person, whether actually or
contingently, and whether as principal, surety or otherwise) together with any
related Additional Debt.
“Interim Facility Declared
Default” means an Interim Facility Default which has resulted in the
Interim Facility Agent exercising any of its rights to accelerate the principal
of the Interim Facility Debt or the principal being automatically accelerated in
each case under section 7.02 of the Interim Facility Agreement.
“Interim Facility Default”
means an event of default under the Interim Facility Agreement.
“Interim Facility Discharge
Date” means the date on which the Security Agent is satisfied (acting
reasonably) that all Interim Facility Debt has been fully and irrevocably paid
or discharged and all commitments of the Interim Facility Finance Parties in
respect of the Interim Facility Debt have expired or been
cancelled.
“Interim Facility Finance
Documents” means the Loan Documents as defined in the Interim Facility
Agreement.
“Interim Facility Finance
Parties” means the Finance Parties as defined in the Interim Facility
Agreement.
“Interim Facility Lenders”
means the lenders under the Interim Facility Agreement.
“Interim Facility Payment
Default” means any Interim Facility Default relating to a non-payment of
principal or interest or arrangement, underwriting, commitment or conversion
fees.
“Interim Facility Recoveries”
means the aggregate of all moneys and other assets received or recovered
(whether by exercising any set-off or otherwise) from time to time by any
Interim Facility Finance Party under or in connection with any Interim Facility
Debt; provided, however, that for purposes of Section 13.1 (Turnover), it shall mean
Interim Facilities Recoveries as so defined under or in connection with the
Interim Facility Security Documents.
“Interim Facility Security
Documents” means the security documents that may at any time be entered
into by a member of the Group as Security in favour of a Senior Secured Party
for any of the present and future moneys, debts and liabilities due, owing or
incurred by it to any Senior Secured Party under or in connection with any
Interim Facility Finance Document.
“Investor” means:
|
|
(a)
|
any
Original Investor; and
|
|
|
(b)
|
any
person which has become an Investor in accordance with Clause 32.10 (Assignments and transfers by
Investors),
|
which in
each case has not ceased to be an Investor in accordance with this
Agreement.
“Investor Debt” means all
present and future moneys, debts and liabilities due, owing or incurred by any
Obligor to any Investor under or in connection with any Investor Document,
including any dividends and any advisory, monitoring or management fee (in each
case, whether alone or jointly, or jointly and severally, with any other person,
whether actually or contingently, and whether as principal, surety or
otherwise), together with any related Additional Debt provided that, without
prejudice to any rights of any Senior Finance Party and Interim Facility Finance
Party under this Agreement, any provisions herein with respect to Investor Debt
and the High Yield Notes and the High Yield Notes Finance Parties and High Yield
Noteholders shall only apply so far as the High Yield Notes and the High Yield
Notes Finance Parties and High Yield Noteholders are concerned to subordinate
the Investor Debt outstanding on the issue of the High Yield Notes.
-11-
“Investor Documents”
means:
|
|
(a)
|
the
Management Agreement; and
|
|
|
(b)
|
any
other document (including articles of association or other constitutional
documents), agreement or instrument under or pursuant to which any sum is
or becomes or is capable of becoming due, owing or incurred from or by any
Obligor to any Investor in its capacity as Investor (and not as an officer
or employee or otherwise).
|
“Investor Recoveries” means the
aggregate of all moneys and other assets received or recovered (whether by
exercising any set-off or otherwise) from time to time by any Investor under or
in connection with any Investor Debt.
“Issuer Intercompany Debt”
means the Intercompany Debt due, owing or incurred to the Company.
“Junior Creditor”
means:
|
|
(a)
|
until
the Senior Discharge Date, the High Yield Noteholders and the Subordinated
Parties; and
|
|
|
(b)
|
after
the Senior Discharge Date and until the High Yield Notes Discharge Date,
the Subordinated Parties.
|
“Junior Debt”
means:
|
|
(a)
|
until
the Senior Discharge Date, the High Yield Notes Guarantee Debt, the High
Yield Notes On-Loan Debt and the Subordinated Debt;
and
|
|
|
(b)
|
after
the Senior Discharge Date and until the High Yield Notes Discharge Date,
the Subordinated Debt.
|
“Key Company” means each of the
Company, Basell Funding, each Obligor and, prior to the Senior Facility
Discharge Date and Interim Facility Discharge Date, any Material Subsidiary or
Significant Subsidiary as defined under the Senior Facility Agreement or the
Interim Facility Agreement.
“LyondellBasell Finance
Company” means LyondellBasell Finance Company, a Delaware
corporation.
“Management Agreement” means
the management agreement between among others, the Company and Xxxx
Limited.
“Material Adverse Effect” means
a material adverse effect on or material adverse change in:
|
|
(a)
|
the
financial condition, assets or business of the Group taken as a whole
(after taking into account any warranty, indemnity or right of recourse
against any third party with respect to the relevant event or
circumstances (including, without limitation, coverage by insurances))
where “taking into account” includes the consideration of all relevant
facts and circumstances including the creditworthiness of the relevant
third party, the timing and likelihood of successful recoveries and
potential counterclaims and other claims against any of the
Obligors;
|
|
|
(b)
|
the
ability of the Obligors taken as a whole to perform and comply with their
payment obligations as they fall due under any Senior Finance Document or
their financial covenant obligations under the Senior Finance
Documents;
|
-12-
|
|
(c)
|
the
validity, legality or enforceability of any Senior Finance Document in a
manner which would be materially adverse to the interests of the Senior
Lenders; or
|
|
|
(d)
|
the
validity, legality or enforceability of any Security expressed to be
created pursuant to any Security Document or on the priority and ranking
of any of that Security, in either case in a manner which would be
materially adverse to the interests of the Senior
Lenders.
|
“Merger Agreement” means the
Agreement and Plan of Merger among the Company, BIL Acquisition Holdings Limited
and Target, dated as of July 16, 2007.
“Noteholders” means the holders
of the Second Lien Notes, the Unsecured Senior Notes and the High Yield
Notes.
“Notes Finance Documents” means
the Second Lien Notes Finance Documents, the Unsecured Senior Notes Finance
Documents and the High Yield Notes Finance Documents.
“Notes Finance Parties” means
the Second Lien Notes Finance Parties, the Unsecured Senior Notes Finance
Parties and the High Yield Notes Finance Parties.
“Obligor” means the Company,
each Original Obligor, each person who becomes a Borrower or a Guarantor (each
as defined in the Senior Facility Agreement) after the date hereof, each
Additional Guarantor (as defined in the Interim Facility Agreement), each Second
Lien Notes Guarantor, each Unsecured Senior Notes Guarantor and each High Yield
Notes Guarantor.
“Original Obligor” means an
Original Borrower or an Original Guarantor.
“Parallel Debt” means the
Security Agent Claim created under Clause 24.6 (Parallel Debt).
“Party” means a party to this
Agreement.
“Permitted High Yield Notes Guarantee
Payments” means the payments, receipts and set-offs in relation to the
High Yield Notes Guarantees that are permitted by Clause 11.2 (Permitted High Yield Notes Guarantee
Payments and Permitted High Yield Notes On-Loan Payments) as long as they
are so permitted.
“Permitted High Yield Notes On-Loan
Payments” means the payments, receipts and set-offs in relation to the
High Yield Notes On-Loan that are permitted by Clause 11.2 (Permitted High Yield Notes Guarantee
Payments and Permitted High Yield Notes On-Loan Payments) as long as they
are so permitted.
“Permitted Intercompany
Payments” means the payments, receipts and set-offs permitted by Clause
11.4 (Permitted Intercompany
Payments) as long as they are so permitted.
“Permitted Investor Payments”
means the payments, receipts and set-offs permitted by Clause
11.3 (Permitted
Investor Payments) as long as they are so permitted.
“Permitted Junior Securities”
means:
|
|
(a)
|
equity
securities of any Holding Company of BI S.à.x.x. or (ii) debt securities
of any Holding Company of BI S.à.x.x. with no guarantee or security from
BI S.à.x.x. or any Subsidiary of it or other member of the
Group;
|
|
|
(b)
|
equity
securities of BI S.à.x.x. or (ii) debt securities of BI S.à.x.x. with no
security from BI S.à.x.x. or any Subsidiary of it or other member of the
Group; and
|
-13-
|
|
(c)
|
equity
securities of the Company issued to any Investor or to any High Yield
Noteholders by virtue of their capacity as such or debt securities of the
Company issued in compliance with the High Yield Notes Major Terms and
High Yield Notes Guarantee Maturity
Provisions,
|
provided
that any such issue of securities is not in violation of any other term of this
Agreement or any other Finance Document.
“Permitted Payment” means a
Permitted High Yield Notes Guarantee Payment, a Permitted High Yield Notes
On-Loan Payment, a Permitted Intercompany Payment or a Permitted Investor
Payment.
“Recovering Creditor” has the
meaning given to it in Clause 24.1 (Payments to Secured Parties, High
Yield Notes Finance Parties and High Yield Noteholders).
“Recovery” has the meaning
given to it in Clause 24.1 (Payments to Secured Parties, High
Yield Notes Finance Parties and High Yield Noteholders).
“Relevant High Yield Notes
Default” has the meaning given to it in Clause 19.2.1 (Permitted High Yield Notes On-Loan
and Permitted High Yield Notes Security Documents
enforcement).
“Relevant Jurisdiction” means,
in relation to an Obligor:
|
|
(a)
|
its
jurisdiction of incorporation;
|
|
|
(b)
|
any
jurisdiction where any asset subject to or intended to be subject to a
Security Document is situated;
|
|
|
(c)
|
any
jurisdiction where it conducts its business;
and
|
|
|
(d)
|
the
jurisdiction whose laws govern the perfection of any of the Security
Documents entered into by it.
|
“Reports” means the documents
listed in Schedule 1.01(d) to the Interim Facility Agreement.
“Representative” means (ii) the
Senior Agent in respect of the Senior Facility Finance Parties, (ii) the Interim
Facility Agent in respect of the Interim Facility Finance Parties, (iii) the
Second Lien Notes Trustee in respect of the Second Lien Noteholders and (iv) the
Unsecured Senior Notes Trustee in respect of the Unsecured Senior
Noteholders.
“Reservations”
means:
|
|
(a)
|
any
legal principle that equitable remedies are remedies which may be granted
or refused at the discretion of the
court;
|
|
|
(b)
|
the
limitation of enforcement by laws relating to bankruptcy, insolvency,
liquidation, reorganisation, court schemes, moratoria, administration and
other laws generally affecting the rights of
creditors;
|
|
|
(c)
|
the
time barring of claims under any applicable limitation laws (including the
Limitation Acts);
|
|
|
(d)
|
the
possibility that an undertaking to assume liability for or to indemnify a
person against non-payment of stamp duty may be
void;
|
|
|
(e)
|
defences
of set-off or counterclaim and similar principles, rights and defences
under the laws of any jurisdiction in which the relevant obligations under
the Senior Finance Documents may have to be
performed;
|
-14-
|
|
(f)
|
the
possibility that a court may strike out provisions of a contract as being
invalid for reasons of oppression, undue influence or similar reasons;
and
|
|
|
(g)
|
any
other reservations or qualifications of law (but not of fact) expressed in
any legal opinions,
|
in each
case which are specifically referred to in any legal opinion delivered pursuant
to any condition to drawdown or accession.
“Responsible Officer” when used
in this Agreement means any officer within the corporate trust and agency
department of any High Yield Notes Trustee, including any vice president,
assistant vice president, assistant treasurer, trust officer or any other
officer of such High Yield Notes Trustee who customarily performs functions
similar to those performed by such officers, or to whom any corporate trust
matter is referred because of such individual’s knowledge of and familiarity
with the particular subject and who shall have direct responsibility for the
administration of this Agreement and any High Yield Notes
Indenture.
“Second Lien Debt” means the
Interim Facility Debt and the Second Lien Notes Debt.
“Second Lien Discharge Date”
means the later of the Interim Facility Discharge Date and the Second Lien Notes
Discharge Date.
“Second Lien Finance Documents”
means the Interim Facility Finance Documents and the Secured Lien Notes Finance
Documents.
“Second Lien Noteholders” means
the holders of the Second Lien Notes.
“Second Lien Notes” means the
notes to be issued by the Second Lien Notes Issuer that comply with Schedule
10.
“Second Lien Notes Debt” means
all present and future moneys, debts and liabilities due, owing or incurred by
the Second Lien Notes Issuer and/or the Second Lien Notes Guarantors to any
Second Lien Notes Finance Party or Second Lien Noteholder under or in connection
with the Second Lien Notes Finance Documents (in each case, whether alone or
jointly, or jointly and severally, with any other person, whether actually or
contingently, and whether as principal, surety or otherwise), together with any
related Additional Debt; provided, however, that the definition of “Second Lien
Notes Debt” shall not include the Second Lien Notes Trustee
Amounts.
“Second Lien Notes Declared
Default” means a Second Lien Notes Default which has resulted in the
Second Lien Notes Finance Parties accelerating all amounts due under the Second
Lien Notes.
“Second Lien Notes Default”
means an event of default under the Second Lien Notes Indenture.
“Second Lien Notes Discharge
Date” means the date on which all Second Lien Notes Guarantee Debt has
been irrevocably and unconditionally discharged in full.
“Second Lien Notes Finance
Documents” means the Second Lien Notes, the Second Lien Notes Indenture
(including the Second Lien Notes Guarantees), this Agreement, the Second Lien
Notes Security Documents.
“Second Lien Notes Finance
Parties” means the Second Lien Notes Trustee (on behalf of itself and the
Second Lien Noteholders) and the Security Agent.
“Second Lien Notes Guarantees”
means the guarantees by the Second Lien Notes Guarantors of the obligations of
LyondellBasell Finance Company under the Second Lien Notes and the Second Lien
Notes Indenture.
-15-
“Second Lien Notes Guarantors”
means the Company and each other Subsidiary of the Company that is or becomes a
guarantor of the Second Lien Notes in accordance with the Second Lien Notes
Indenture.
“Second Lien Notes Indenture”
means the indenture governing the Second Lien Notes dated on or about the date
of accession of the Second Lien Notes Trustee.
“Second Lien Notes Issuer”
means LyondellBasell Finance Company or any other entity that issues the Second
Lien Notes in compliance with Schedule 10.
“Second Lien Notes Payment
Default” means any Second Lien Notes Default relating to a non-payment of
principal or interest.
“Second Lien Notes Recoveries”
means the aggregate of all moneys and other assets received or recovered
(whether by exercising any set-off or otherwise) from time to time by any Second
Lien Notes Finance Party or Second Lien Noteholder under or in connection with
the Second Lien Notes Debt; provided, however that for purposes of Section 13.1
(Turnover), it shall
mean Second Lien Notes Recoveries as so defined under or in connection with the
Second Lien Notes Security Documents only; provided, further, however, that the
definition of “Second Lien Notes Recoveries” shall not include the Second Lien
Notes Trustee Amounts.
“Second Lien Notes Security
Documents” means the Security granted in accordance with the Second Lien
Notes Indenture to secure all or any part of the Second Lien Notes
Debt.
“Second Lien Notes Trustee”
means any entity acting as trustee under any issue of the Second Lien Notes and
which accedes to this Agreement pursuant to Clause 32.5 (Accession of Second Lien Notes
Trustee).
“Second Lien Notes Trustee
Amounts” means amounts payable to the Second Lien Notes Trustee under
this Agreement, any indemnity provisions for costs and expenses in favour of the
Second Lien Notes Trustee contained in the Second Lien Notes Indenture and under
the provisions of the Second Lien Notes Guarantees, all compensation for
services provided by the Second Lien Notes Trustee which is payable to the
Second Lien Notes Trustee pursuant to this Agreement, the Second Lien Notes
Indenture and the Second Lien Notes Guarantees and all out-of-pocket costs and
expenses properly incurred by the Second Lien Notes Trustee in carrying out its
duties or performing any service pursuant to the terms of the Second Lien Notes
Indenture, the Second Lien Notes Guarantees and this Agreement, including,
without limitation (a) compensation for the costs and expenses of the collection
by the Second Lien Notes Trustee of any amount payable to the Second Lien Notes
Trustee for the benefit of the Second Lien Noteholders, and (b) costs and
expenses of the Second Lien Notes Trustee’s agents and counsel (but excluding
(i) any payment in relation to any unpaid costs and expenses incurred in respect
of any litigation by or on behalf of any Second Lien Notes Trustee or any Second
Lien Noteholders against any of the Senior Finance Parties and (ii) any payment
made directly or indirectly on or in respect of any amounts owing under any
Second Lien Notes (including principal, interest, premium or any other amounts
to any of the Second Lien Noteholders)).
“Second Lien Security
Documents” means the Interim Facility Security Documents and the Second
Lien Notes Security Documents.
“Security” means a mortgage,
charge, pledge, lien or other security interest securing any obligation of any
person or any other agreement or arrangement having a similar
effect.
“Security Documents” means the
Senior Security Documents, the Interim Facility Security Documents, the Second
Lien Notes Security Documents, the Arco Notes Security Documents, the Equistar
Notes Security Documents and the High Yield Notes Security
Documents.
“Senior Agreements” means the
Senior Facility Agreement (prior to the Senior Facility Discharge Date), the
Interim Facility Agreement (prior to the Interim Facility Discharge Date), the
Second Lien Notes Indenture (prior to the Second Lien Notes Discharge Date) and
the Unsecured Senior Notes Indenture.
-16-
“Senior Debt” means the Senior
Facility Debt, the Interim Facility Debt, the Second Lien Notes Debt and the
Unsecured Senior Notes Debt.
“Senior Declared Default” means
a Senior Facility Declared Default, an ABL Declared Default, an Interim Facility
Declared Default, a Second Lien Notes Declared Default and/or an Unsecured
Senior Notes Declared Default.
“Senior Default” means a Senior
Facility Default, an ABL Default, an Interim Facility Default, a Second Lien
Notes Default and/or an Unsecured Senior Notes Default.
“Senior Discharge Date” means
the last to occur of (a) the Senior Facility Discharge Date, (b) the Interim
Facility Discharge Date, (c) the Second Lien Notes Discharge Date and (d) the
Unsecured Senior Notes Discharge Date.
“Senior Facility Agreement”
means the credit agreement dated on or about the date of this
Agreement between the Company, certain Subsidiaries of the Company as borrowers
and guarantors and the Senior Finance Parties.
“Senior Facility Debt” means
all present and future moneys, debts and liabilities due, owing or incurred by
any Obligor to any Senior Finance Party under or in connection with any Senior
Finance Document, (in each case, whether alone or jointly, or jointly and
severally, with any other person, whether actually or contingently, and whether
as principal, surety or otherwise), together with any related Additional Debt
but excluding any Hedging Debt.
“Senior Facility Declared
Default” means a Senior Facility Default which has resulted in the Senior
Agent exercising any of its rights to declare all amounts then outstanding to be
immediately due and payable under Section 8.02 of the Senior Facility Agreement
or as a result of which the debt thereunder is automatically accelerated
pursuant to the Senior Facility Agreement.
“Senior Facility Default” means
an Event of Default as defined in the Senior Facility Agreement.
“Senior Facility Discharge
Date” means the date on which the Security Agent is satisfied (acting
reasonably) that all Senior Facility Debt, and Hedging Debt has been fully and
irrevocably paid or discharged and all commitments of the Senior Finance Parties
and the Hedging Banks in respect of the Senior Facility Debt or the Hedging
Debt, as the case may be, have expired or been cancelled.
“Senior Facilities” means the
senior term loan and revolving credit facilities made available under the Senior
Facility Agreement.
“Senior Finance Documents”
means the Loan Documents (as defined in the Senior Facility Agreement) but
excluding the Hedging Documents.
“Senior Finance Parties” means
the Secured Parties as defined in the Senior Facility Agreement.
“Senior Lender” means any
lender under the Senior Facility Agreement.
“Senior Party” means the Senior
Finance Party, ABL Finance Party, the Interim Finance Party, the Second Lien
Notes Finance Party, the Unsecured Senior Notes Finance Party and the Hedging
Banks.
“Senior Payment Default” means
any Senior Default relating to a non-payment of principal or interest or any
failure by an Obligor to pay on the due date or by the end of any applicable
grace period following the due date any amount payable pursuant to a Hedging
Document in respect of Hedging Debt, at the place and in the currency in which
it is expressed to be payable.
-17-
“Senior Recoveries” means the
aggregate of all moneys and other assets received or recovered (whether by
exercising any set-off or otherwise) from time to time by any Senior Finance
Party under or in connection with any Senior Debt.
“Senior Representative” means
the Senior Agent (prior to the Senior Facility Discharge Date), the Interim
Facility Agent (prior to the Interim Facility Discharge Date), the Second Lien
Notes Trustee (prior to the Second Lien Notes Discharge Date) and the Unsecured
Senior Notes Trustee (prior to the Unsecured Senior Notes Discharge
Date).
“Senior Secured Debt” means the
Senior Facility Debt, the Hedging Debt, the Interim Facility Debt and the Second
Lien Notes Debt.
“Senior Secured Party” means a
Senior Finance Party, a Hedging Bank, an Interim Facility Finance Party or a
Second Lien Notes Finance Party.
“Senior Secured
Representatives” shall mean the Senior Agent (prior to the Senior
Facility Discharge Date), the Interim Facility Agent (prior to the Interim
Facility Discharge Date) and the Second Lien Notes Trustee (prior to the Second
Lien Notes Discharge Date).
“Senior Security Documents”
means the Security granted in accordance with the Senior Facility Agreement to
secure all or any part of the Senior Secured Debt and the Hedging
Debt.
“Sharing Payment” has the
meaning given to it in Clause 24.1 (Payments to Secured Parties, High
Yield Notes Finance Parties and High Yield Noteholders).
“Subordinated Debt” means any
Investor Debt or Intercompany Debt.
“Subordinated Party” means any
Investor or Intercompany Lender.
“Subsidiary” shall mean
Subsidiary as defined in any of the Senior Agreements.
“Suspension Event” means at any
time prior to the Senior Discharge Date:
|
|
(a)
|
a
notice delivered on the instructions of the Instructing Group following an
event of default (as defined under the applicable Senior Agreements)
relating to a non-payment or, if prior to the Senior Facility Discharge
Date, breach of financial covenants (or failure to supply any Compliance
Certificate (as defined under the Senior Facility Agreement) in relation
to the Senior Facility Agreement);
or
|
|
|
(b)
|
a
notice exercising any right to demand immediate repayment of all amounts
thereunder being delivered under the applicable Senior
Agreement.
|
“Target” means Lyondell
Chemical Company, a Delaware corporation.
“Target Group” means the Target
and its Subsidiaries.
“Tax” means any tax, levy,
impost, duty or other charge or withholding of a similar nature (including any
penalty or interest payable in connection with any failure to pay or any delay
in paying any of the same).
“Trustee Amounts” means the
Second Lien Notes Trustee Amounts, the Unsecured Senior Notes Trustee Amounts
and the High Yield Notes Trustees Amounts.
“Trustees” means the Second
Lien Notes Trustee, the Unsecured Senior Notes Trustee and the High Yield Notes
Trustee.
-18-
“Unsecured Senior Noteholders”
means the holders of the Unsecured Senior Notes.
“Unsecured Senior Notes” means
the notes to be issued by the Unsecured Senior Notes Issuer that comply with
Schedule 11.
“Unsecured Senior Notes Debt”
means all present and future moneys, debts and liabilities due, owing or
incurred by the Unsecured Senior Notes Issuer and/or the Unsecured Senior Notes
Guarantors to any Unsecured Senior Notes Finance Party or Unsecured Senior
Noteholder under or in connection with the Unsecured Senior Notes Finance
Documents (in each case, whether alone or jointly, or jointly and severally,
with any other person, whether actually or contingently, and whether as
principal, surety or otherwise), together with any related Additional Debt;
provided, however, that the definition of “Unsecured Senior Notes Debt” shall
not include the Unsecured Senior Notes Trustee Amounts.
“Unsecured Senior Notes Declared
Default” means an Unsecured Senior Notes Default which has resulted in
the Unsecured Senior Notes Finance Parties accelerating all amounts due under
the Unsecured Senior Notes.
“Unsecured Senior Notes
Default” means an event of default under the Unsecured Senior Notes
Indenture.
“Unsecured Senior Notes Discharge
Date” means the date on which all Unsecured Senior Notes Guarantee Debt
has been irrevocably and unconditionally discharged in full.
“Unsecured Senior Notes Finance
Documents” means the Unsecured Senior Notes, the Unsecured Senior Notes
Indenture (including the Unsecured Senior Notes Guarantees) and this
Agreement.
“Unsecured Senior Notes Finance
Parties” means the Unsecured Senior Notes Trustee (on behalf of itself
and the Unsecured Senior Noteholders) and the Original Security
Agent.
“Unsecured Senior Notes
Guarantees” means the guarantees by the Unsecured Senior Notes Guarantors
of the obligations of LyondellBasell Finance Company under the Unsecured Senior
Notes and the Unsecured Senior Notes Indenture.
“Unsecured Senior Notes
Guarantors” means the Company and each other Subsidiary of the Company
that is or becomes a guarantor of the Unsecured Senior Notes in accordance with
the Unsecured Senior Notes Indenture.
“Unsecured Senior Notes
Indenture” means the indenture governing the Unsecured Senior Notes dated
on or above the date of accession of the Unsecured Senior Notes
Trustee.
“Unsecured Senior Notes Issuer”
means LyondellBasell Finance Company or any other entity that issues the
Unsecured Senior Notes in compliance with Schedule 11.
“Unsecured Senior Notes
Recoveries” means the aggregate of all moneys and other assets received
or recovered (whether by exercising any set-off or otherwise) from time to time
by any Unsecured Senior Notes Finance Party or Unsecured Senior Stockholder
under or in connection with the Unsecured Senior Notes Debt.
“Unsecured Senior Notes
Trustee” means any entity acting as trustee under any issue of the Notes
and which accedes to this Agreement pursuant to Clause 32.6 (Accession of Unsecured Senior Notes
Trustee).
“Unsecured Senior Notes Trustee
Amounts” means amounts payable to the Unsecured Senior Notes
Trustee under this Agreement, any indemnity provisions for costs and expenses in
favour of the Unsecured Senior Notes Trustee contained in the Unsecured Senior
Notes Indenture and under the provisions of the Unsecured Senior Notes
Guarantees, all compensation for services provided by the Unsecured Senior Notes
Trustee which is payable to the Unsecured Senior Notes Trustee pursuant to this
Agreement, the Unsecured Senior Notes Indenture and the Unsecured Senior Notes
Guarantees and all out-of-pocket costs and expenses properly incurred by the
Unsecured Senior Notes Trustee in carrying out its duties or performing any
service pursuant to the terms of the Unsecured Senior Notes Indenture, the
Unsecured Senior Notes Guarantees and this Agreement, including, without
limitation (a) compensation for the costs and expenses of the collection by the
Unsecured Senior Notes Trustee of any amount payable to the Unsecured Senior
Notes Trustee for the benefit of the Unsecured Senior Noteholders, and (b) costs
and expenses of the Unsecured Senior Notes Trustee’s agents and counsel (but
excluding (i) any payment in relation to any unpaid costs and expenses incurred
in respect of any litigation by or on behalf of any Unsecured Senior Notes
Trustee or any Unsecured Senior Noteholders against any of the Senior Finance
Parties and (ii) any payment made directly or indirectly on or in respect of any
amounts owing under any Unsecured Senior Notes (including principal, interest,
premium or any other amounts to any of the Unsecured Senior
Noteholders)).
-19-
“US Bankruptcy Law” means the
United States Bankruptcy Code of 1978, as amended, or any other United States
federal or state bankruptcy, insolvency or similar law.
“VAT” means value added tax as
provided for in the Value Added Tax Xxx 0000 and any other tax of a similar
nature.
|
1.2
|
Construction
|
|
|
1.2.1
|
Unless
a contrary indication appears, any reference in this Agreement
to:
|
|
|
(a)
|
any
“Arco Noteholder”,
“Arco Notes
Trustee”, the “Company”, “Equistar Noteholder”,
“Equistar Notes
Trustee”, the “Hedging Bank”, any
“High Yield
Noteholder”, the “High Yield Notes
Trustee”, any “Intercompany Borrower”,
any “Intercompany
Lender”, the “Interim Facility Agent”,
any “Interim Facility
Finance Party”, any “Interim Facility
Lender”, any “Investor”, the “Issuing Bank”, any
“Obligor”, any
“Party”, any
“Second Lien
Noteholder”, the “Second Lien Notes
Trustee”, any “Secured Party”, the
“Security Agent”,
the “Senior
Agent”, any “Senior Finance Party”,
any “Senior
Lender”, “Senior
Secured Party”, any “Unsecured Senior
Noteholder” or the “Unsecured Senior Note
Trustee” shall be construed so as to include its successors in
title, assigns and transferees permitted under this
Agreement;
|
|
|
(b)
|
“actual knowledge” of
aTrustee shall be construed to mean that such Trustee shall not be charged
with knowledge (actual or otherwise) of the existence of facts that would
impose an obligation on it to make any payment or prohibit it from making
any payment unless:
|
|
(i)
|
a
Responsible Officer of such Trustee has received written notice that such
payments are required or prohibited by this Agreement or its respective
Indenture in which event the Trustee shall be deemed to have actual notice
within one Business Day of receiving that notice,
or
|
|
(ii)
|
in
the case of the High Yield Notes Trustee, a Responsible Officer of such
High Yield Notes Trustee has not received notice of the Senior Discharge
Date pursuant to Clause 29.3 (Discharge of Senior Debt and
Hedging Debt) and such payment is to be made out of any receipt or
recovery by the High Yield Notes Trustee from a Subsidiary of the Company
pursuant to the High Yield Notes Guarantee, other than where such payment
is (i) with the consent of the Senior Agent as notified in writing to a
Responsible Officer of such High Yield Notes Trustee or (ii) to the High
Yield Notes Trustee in respect of any High Yield Notes Trustee
Amount;
|
|
|
(c)
|
“assets” includes present
and future properties, revenues and rights of every
description;
|
-20-
|
|
(d)
|
the
“equivalent” in
any currency (the “first
currency”) of any amount in another currency (the “second currency”) shall
be construed as a reference to the amount in the first currency which
could be purchased with that amount in the second currency at the Security
Agent’s spot rate of exchange for the purchase of the first currency with
the second currency in the London foreign exchange market at or about
11:00 a.m. on a particular day (or at or about such time and on such date
as the Security Agent may from time to time reasonably determine to be
appropriate in the circumstances);
|
|
|
(e)
|
a
“Finance
Document”, “Hedging Document”,
“High Yield Notes Finance
Document”, “Intercompany Document”,
“Interim Facility Finance
Document”, “Investor Document”, or
any other agreement or instrument is a reference to that document or other
agreement or instrument as amended or novated but excluding any amendment
or novation contrary to this
Agreement;
|
|
|
(f)
|
“guarantee” means any
guarantee, letter of credit, bond, indemnity or similar assurance against
loss, or any obligation, direct or indirect, actual or contingent, to
purchase or assume any indebtedness of any person or to make an investment
in or loan to any person or to purchase assets of any person where, in
each case, such obligation is assumed in order to maintain or assist the
ability of such person to meet its
indebtedness;
|
|
|
(g)
|
“indebtedness” includes
any obligation (whether incurred as principal or as surety) for the
payment or repayment of money, whether present or future, actual or
contingent;
|
|
|
(h)
|
a
“person” includes
any person, firm, company, corporation, government, state or agency of a
state or any association, trust or partnership (whether or not having
separate legal personality) or two or more of the
foregoing;
|
|
|
(i)
|
a
“regulation”
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental,
intergovernmental or supranational body, agency, department or regulatory,
self-regulatory or other authority or
organisation;
|
|
|
(j)
|
“shares” or “share capital” include
equivalent ownership interests (and “shareholder” and similar expressions
shall be construed accordingly);
|
|
|
(k)
|
“set-off” includes
combining accounts and payment
netting;
|
|
|
(l)
|
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
|
|
(m)
|
a
time of day is a reference to New York
time.
|
|
1.2.2
|
Dutch
Terms
|
In this
Agreement, where it relates to a Dutch entity, a reference to:
|
|
(a)
|
a
necessary action to authorise, where applicable, includes without
limitation:
|
|
(i)
|
any
action required to comply with the Dutch Works Council Act (Wet op de
ondernemingsraden);
and
|
|
(ii)
|
obtaining
unconditional positive advice (advies) from each
competent works council;
|
-21-
|
|
(b)
|
a
winding-up, administration or dissolution includes a Dutch entity
being:
|
|
(i)
|
declared
bankrupt (failliet
verklaard);
|
|
(ii)
|
dissolved
(ontbonden);
|
|
|
(c)
|
a
moratorium includes surseance van betaling
and granted a moratorium includes surseance
verleend;
|
|
|
(d)
|
a
trustee in bankruptcy includes a curator;
|
|
|
(e)
|
an
administrator includes a bewindvoerder;
|
|
|
(f)
|
a
receiver or an administrative receiver does not include a curator or bewindvoerder;
and
|
|
|
(g)
|
an
attachment includes a beslag.
|
|
|
1.2.3
|
German
Terms
|
In this
Agreement, where it relates to a German entity, a reference to:
|
|
(a)
|
a
person being unable to
pay its debts includes that person being in a state of Zahlungsunfähigkeit
under section 17 of the German Insolvency Law (Insolvenzordnung) or
being over indebted (überschuldet) under
section 19 of the German Insolvency Law (Insolvenzordnung) or
being at risk of being unable to pay its debts as they fall due (drohende
Zahlungsunfähigkeit);
|
|
|
(b)
|
a
compulsory manager,
receiver or administrator includes
an Insolvenzverwalter or
creditor’s trustee (Sachwalter);
|
|
|
(c)
|
a
winding up,
administration or dissolution includes
insolvency proceedings (Insolvenzverfahren);
and
|
|
|
(d)
|
promptly means unverzüglich as
contemplated by section 121, subparagraph (i) of the German Civil
Code.
|
|
|
1.2.4
|
Luxembourg
Terms
|
In this
Agreement, a reference used in connection with a Luxembourg Obligor
to:
|
|
(a)
|
a
winding up,
administration or dissolution includes,
without limitation, bankruptcy (faillite), insolvency,
voluntary or judicial liquidation (liquidation volontaire ou
judicaire), composition with creditors (concordat préventif de
faillite), reprieve from payment (sursis de paiement),
controlled management (gestion contrôlé),
fraudulent conveyance (action pauliana),
general settlement with creditors, reorganisation or similar laws
affecting the rights of creditors
generally;
|
|
|
(b)
|
a
receiver, administrative
receiver, administrator or the like includes, without limitation,
a juge délégué,
expert-vérificateur,
commissaire,
juge-commisaire,
liquidateur or
curateur;
|
|
|
(c)
|
a
security interest
includes any hypothéque,
nantissement, gage, privilege, sûreté réelle, droit de retention and
any type of real security or agreement or arrangement having a similar
effect and any transfer of title by way of security;
and
|
-22-
|
|
(d)
|
a
person being unable to pay its debts includes that person being in a state
of cessation of payments (cessation de
paiements).
|
|
|
1.2.5
|
Section,
Clause and Schedule headings are for ease of reference
only.
|
|
|
1.2.6
|
A
default, an event of default or potential event of default, however
described, is “continuing” if it has not been remedied or waived in
accordance with the terms of the relevant
agreement.
|
|
|
1.2.7
|
In
determining whether any Senior Debt, Hedging Debt, High Yield Notes Debt,
High Yield Notes Guarantee Debt or High Yield Notes On-Loan Debt has been
irrevocably paid or discharged, contingent liabilities (such as the risk
of clawback from a preference claim) will be disregarded except to the
extent that there is a reasonable likelihood that those contingent
liabilities will become actual
liabilities.
|
|
|
1.2.8
|
The
High Yield Notes Finance Parties and High Yield Noteholders are only
entitled to participate in the proceeds of the Charged Assets to the
extent that such proceeds are derived from assets subject to the High
Yield Notes Security Documents and the rights of the High Yield
Noteholders in respect of such proceeds shall in any event be subject to
the priorities set out in Clause 20 (Application of
Recoveries); provided, however, that this shall not affect the High
Yield Notes Trustee from claiming and being paid the High Yield Notes
Trustee Amounts.
|
|
1.3
|
Alternative debt
instruments
|
If the
Second Lien Notes and/or the Unsecured Senior Notes are not issued and any
person executes an alternative refinancing of the Interim Facility which
refinances the Interim Facility Debt in full or in part or the Extended Notes
(as defined in the Interim Facility Agreement) are issued and replace the
Interim Facility Debt in full, references in this Agreement to the Second Lien
Notes and/or Unsecured Senior Notes (as applicable based on whether such
refinancing debt benefits from the Security pledged under the Second Lien Notes
Security Documents) and related definitions shall be construed so as to apply to
such alternative refinancing, the Extended Loans and the Extended Notes and all
provisions relation to the Interim Facility Debt, the Interim Facility Finance
Parties and the like shall no longer apply provided that such alternative
refinancing is unsubordinated and is not otherwise in breach of the Finance
Documents and is undertaken by LyondellBasell Finance Company (or any Holding
Company thereof which is a Subsidiary of the Company) and is on terms which are
subject to, and consistent with, this Agreement and so that such alternative
refinancing is treated under this Agreement in the same manner as the issue of
the Second Lien Notes and/or the Unsecured Senior Notes would have been
treated.
|
2.
|
RANKING
|
|
2.1
|
Contractual
subordination
|
|
|
2.1.1
|
Unless
expressly provided to the contrary in this Agreement, Debt will rank in
right and priority of payment in the following order within the sub-group
consisting of members of the Group other than the
Company:
|
|
|
(a)
|
first, the Senior Debt,
the ABL Debt and the Hedging Debt, pari passu between
themselves;
|
|
|
(b)
|
second, the High Yield
Notes Guarantee Debt and the High Yield Notes On-Loan Debt;
and
|
|
|
(c)
|
third, the Intercompany
Debt (other than Intercompany Debt due, owing or incurred by the
Company),
|
in each
case in accordance with the terms of this Agreement.
-23-
|
|
2.1.2
|
Unless
otherwise expressly provided in this Agreement, Debt of the Company will
rank in right and priority of payment in the following
order:
|
|
|
(a)
|
first, the High Yield
Notes Debt, any Hedging Debt and any guarantee of the Senior Debt and any
guarantee of the Hedging Debt; and
|
|
|
(b)
|
second, the Investor
Debt and Intercompany Debt due, owing or incurred by the
Company.
|
|
2.2
|
Intercompany
Debt
|
This
Agreement does not purport to rank any of the Investor Debt and Intercompany
Debt as between themselves.
|
3.
|
ABL
INTERCREDITOR MATTERS
|
|
3.1
|
General
|
The ABL
Agent is entering into this Agreement on behalf of the ABL Finance Parties
solely to accept and implement the benefits of subordination of the High Yield
Notes Guaranteed Debt, the High Yield Notes On-Loan Debt and the Intercompany
Debt as specified herein. Nothing in this Agreement affects in any
way the rights of the ABL Finance Parties under the ABL Finance Documents with
respect to the ABL Collateral or otherwise, or imposes any obligation on any ABL
Finance Party, except as expressly provided in clause 29.
|
3.2
|
The
Parties hereto hereby authorize the Security Agent to enter into the ABL
Intercreditor Agreement in the form attached hereto as Exhibit 1 (with such
changes as the Security Agent and the Instructing Group may agree) and
specifically acknowledge the terms thereof. Such ABL Intercreditor
Agreement may not be amended or modified without the prior consent of the
Instructing Group.
|
4.
|
HEDGING
DEBT
|
|
4.1
|
Hedging
Debt
|
Until the
Senior Facility Discharge Date, no Hedging Bank shall, except with the prior
consent of the Senior Agent under the Senior Facility Agreement:
|
|
4.1.1
|
exercise
or enforce any right against any Obligor under any of the Security
Documents;
|
|
|
4.1.2
|
permit
to subsist or receive any Security, or any guarantee, for, or in respect
of, any Hedging Debt, other than under any Senior Security Document and
the guarantees in any applicable Senior Finance
Document;
|
|
|
4.1.3
|
take
or omit to take any action whereby the ranking in respect of the Security
contemplated by this Agreement may be impaired;
or
|
|
|
4.1.4
|
assign
any of its rights or transfer any of its rights or obligations under any
Hedging Document to any person unless and until the Security Agent
executes an Accession Agreement duly completed and signed on behalf of
that person.
|
-24-
|
4.2
|
Hedging
Documents
|
Each
Hedging Bank shall promptly provide to the Security Agent copies of all Hedging
Documents to which that Hedging Bank is a party.
|
4.3
|
Amendments to Hedging
Documents
|
Until the
Senior Facility Discharge Date, no Obligor or Hedging Bank shall, except with
the prior consent of the Senior Agent under the Senior Facility Agreement, amend
or give any waiver or consent under any provision of any Hedging Document which
would result in:
|
|
4.3.1
|
any
Hedging Document ceasing to comply with the requirements of this Clause 4;
or
|
|
|
4.3.2
|
the
assignment of any of its rights or transfer of any of its rights or
obligations under any Hedging Document to any person unless and until the
Security Agent executes an Accession Agreement duly completed and signed
on behalf of that person,
|
other
than any amendment, waiver or consent purely of a technical or administrative
nature.
|
4.4
|
Termination of Hedging
Documents
|
If:
|
|
(a)
|
the
Senior Discharge Date would have occurred but for the fact that only
Hedging Debt remains outstanding;
and
|
|
|
(b)
|
a
Hedging Bank is requiring any Interim Facility Finance Party to refrain
from taking any step which, but for this Agreement, it would not have been
prevented from taking,
|
the
Security Agent may, on the instructions of the Interim Facility Agent under the
Interim Facility Agreement, direct the relevant Obligor to (and, promptly on
receipt of that direction, that Obligor shall) terminate or procure the
termination of all outstanding derivative transactions under the Hedging
Documents in relation to that Hedging Bank.
|
4.5
|
Hedging
Guarantee
|
Each
Obligor confirms that the Hedging Banks are entitled to rely on the guarantee in
Article XI (Guarantee)
of the Senior Facility Agreement granted by such Obligor (in each case subject
to any limitations therein or in any Accession Agreement by which such Obligor
became party to the Senior Facility Agreement).
|
5.
|
OTHER
SENIOR DEBT
|
|
5.1
|
Interim Facility
Debt
|
Until the
Senior Facility Discharge Date, no Interim Facility Finance Party shall, except
with the prior consent of the Senior Agent under the Senior Facility
Agreement:
|
|
(a)
|
exercise
or enforce any right against any Obligor under any of the Interim Facility
Security Documents;
|
|
|
(b)
|
exercise
any set-off against any Interim Facility
Debt;
|
-25-
|
|
(c)
|
permit
to subsist or receive any Security, or any guarantee, for, or in respect
of, any Interim Facility Debt, other than under any Interim Facility
Security Document and the guarantees in any applicable Interim Facility
Finance Document;
|
|
|
(d)
|
take
or omit to take any action whereby the ranking in respect of the Security
contemplated by this Agreement may be impaired;
or
|
|
|
(e)
|
in
the case of the Interim Facility Agent, assign any of its rights or
transfer any of its obligations under the Interim Facility Finance
Documents unless and until the Security Agent executes an Accession
Agreement duly completed and signed by the Interim Facility
Agent.
|
|
5.2
|
Issue of Second Lien
Notes
|
No member
of the Group shall enter into the Second Lien Notes Indenture
unless:
|
|
(a)
|
the
Senior Agent has received a copy of the proposed Second Lien Notes Finance
Documents in substantially final form before the proposed date of issue of
the Second Lien Notes;
|
|
|
(b)
|
the
net proceeds of the issuance of the Second Lien Notes will be used to
repay the Interim Facility Debt;
|
|
|
(c)
|
the
terms of the Second Lien Notes are consistent in all material respects
with Schedule 10 or are otherwise approved by the Senior Agent (acting
reasonably); and
|
|
|
(d)
|
the
Second Lien Notes Issuer, the Second Lien Notes Trustee and each of the
Second Lien Notes Guarantors execute this Agreement or sign an Accession
Agreement before or concurrently with the issuance of the Second Lien
Notes.
|
|
5.3
|
Other Second Lien Notes
Limitations
|
Until the
Senior Facility Discharge Date, no Second Lien Notes Finance Party or Second
Lien Noteholder shall, except with the prior consent of the Senior Agent under
the Senior Facility Agreement:
|
|
(a)
|
exercise
or enforce any right against any Obligor under any of the Second Lien
Notes Security Documents;
|
|
|
(b)
|
exercise
any set-off against any Second Lien Notes
Debt;
|
|
|
(c)
|
permit
to subsist or receive any Security, or any guarantee, for, or in respect
of, any Second Lien Notes Debt, other than under any Second Lien Notes
Security Document and the guarantees in any applicable Second Lien Notes
Finance Document;
|
|
|
(d)
|
take
or omit to take any action whereby the ranking in respect of the Security
contemplated by this Agreement may be impaired;
or
|
|
|
(e)
|
in
the case of the Second Lien Notes Trustee, assign any of its rights or
transfer any of its obligations under the Second Lien Notes Finance
Documents unless and until the Security Agent executes an Accession
Agreement duly completed and signed by the Second Lien Notes
Trustee.
|
|
5.4
|
Issue of Unsecured Senior
Notes
|
No member
of the Group shall enter into the Unsecured Senior Notes Indenture
unless:
-26-
|
|
(a)
|
the
Senior Agent has received a copy of the proposed Unsecured Senior Notes
Finance Documents in substantially final form before the proposed date of
issue of the Unsecured Senior
Notes;
|
|
|
(b)
|
the
net proceeds of the issuance of the Unsecured Senior Notes will be used to
repay the Interim Facility Debt;
|
|
|
(c)
|
the
terms of the Unsecured Senior Notes are consistent in all material
respects with Schedule 11 or are otherwise approved by the Senior Agent
(acting reasonably); and
|
|
|
(d)
|
the
Unsecured Senior Notes Issuer, the Unsecured Senior Notes Trustee and each
of the Unsecured Senior Notes Guarantors execute this Agreement or sign an
Accession Agreement before or concurrently with the issuance of the
Unsecured Senior Notes.
|
|
5.5
|
Other Unsecured Senior Notes
Limitations
|
Until the
Senior Facility Discharge Date, no Unsecured Senior Notes Finance Party or
Unsecured Senior Noteholder shall, except with the prior consent of the Senior
Agent under the Senior Facility Agreement:
|
|
(a)
|
permit
to subsist or receive any Security, or any guarantee, for, or in respect
of, any Unsecured Senior Notes Debt, other than as may be permitted under
the Finance Documents; and
|
|
|
(b)
|
in
the case of the Unsecured Senior Notes Trustee, assign any of its rights
or transfer any of its obligations under the Unsecured Senior Notes
Finance Documents unless and until the Security Agent executes an
Accession Agreement duly completed and signed by the Unsecured Senior
Notes Trustee.
|
|
6.
|
HIGH
YIELD NOTES DEBT
|
|
6.1
|
High Yield Notes On-Loan
Debt
|
The High
Yield Notes On-Loan shall:
|
|
6.1.1
|
provide
for payment of interest in a manner consistent in all material respects
with the High Yield Notes Finance Documents and only to the extent
permitted under Clause 11.2 (Permitted High Yield Notes Guarantee Payments
and Permitted High Yield Notes On-Loan
Payments);
|
|
|
6.1.2
|
provide
for a scheduled maturity date not prior to the maturity date of the High
Yield Notes and provide that it may not be repaid prior to such maturity
date unless such repayment is expressly made subject to this Agreement
(and accordingly it is agreed that no such repayment may be made unless
the payment is expressly permitted under the Senior Agreements or the
Senior Discharge Date has
occurred);
|
|
|
6.1.3
|
not
include the benefit of any
Security;
|
|
|
6.1.4
|
not
benefit from any guarantee or indemnity given by any member of the Group
except to the extent of an indemnity which is expressly made subject to
this Agreement (and accordingly it is agreed that no such payment may be
made under such indemnity unless the payment is expressly permitted under
the Senior Agreements or the Senior Discharge Date has occurred);
and
|
|
|
6.1.5
|
provide
that any transferee thereof must sign an Accession
Agreement.
|
-27-
|
6.2
|
Prohibited High Yield Notes
Guarantee Debt Payments, Guarantees and
Security
|
Until the
Senior Discharge Date, except with the prior consent of each Senior
Representative, no High Yield Notes Finance Party or High Yield Noteholder
shall:
|
|
6.2.1
|
demand
or receive payment, repayment or prepayment from any High Yield Notes
Guarantor of any principal, interest or other amount on or in respect of,
or any distribution from any High Yield Notes Guarantor in respect of, any
High Yield Notes Guarantee Debt in cash or in kind or apply any such money
or property in or towards discharge of any High Yield Notes Guarantee Debt
except as permitted by Clause 11.2 (Permitted High Yield Notes
Guarantee Payments and Permitted High Yield Notes On-Loan
Payments), Clause 14.3 (Filing of claims) or
Clause 19.2 (Permitted
High Yield Notes On-Loan and Permitted High Yield Notes Security Documents
enforcement);
|
|
|
6.2.2
|
exercise
any set-off against any High Yield Notes Guarantee Debt, except as
permitted by Clause 11.2 (Permitted High Yield Notes
Guarantee Payments and Permitted High Yield Notes On-Loan
Payments), Clause 14.3 (Filing of claims) or
Clause 19.2 (Permitted
High Yield Notes On-Loan and Permitted High Yield Notes Security Documents
enforcement); or
|
|
|
6.2.3
|
permit
to subsist or receive any Security over any assets of any member of the
Group or any guarantee from any member of the Group for, or in respect of,
any High Yield Notes Guarantee Debt, other than under any High Yield Notes
Security Document and the High Yield Notes
Guarantees;
|
provided,
however, that, after the Senior Facility Discharge Date and the Interim Facility
Discharge Date, the consent of the Senior Representatives shall be deemed to
have been given to an action prescribed in clause 6.2.3 to the extent
such action was not prohibited by the Senior Agreements.
Nothing
in this Clause 6.2 shall preclude the payment of, and receipt by the High Yield
Notes Trustee of, any High Yield Notes Trustee Amounts.
|
6.3
|
Prohibited High Yield Notes
On-Loan Payments, Guarantees and
Security
|
Until the
Senior Discharge Date, except with the prior consent of each Senior
Representative, no holder of the High Yield Notes On-Loan shall:
|
|
6.3.1
|
demand
or receive payment, repayment or prepayment from Basell Holdings of any
principal, interest or other amount on or in respect of, or any
distribution from Basell Holdings in respect of, the High Yield Notes
On-Loan Debt in cash or in kind or apply any such money or property in or
towards discharge of any High Yield Notes On-Loan Debt except as permitted
by Clause 11.2 (Permitted High Yield Notes
Guarantee Payments and Permitted High Yield Notes On-Loan
Payments), Clause 14.3 (Filing of claims) or
Clause 19.2 (Permitted
High Yield Notes On-Loan and Permitted High Yield Notes Security Documents
enforcement);
|
|
|
6.3.2
|
exercise
any set-off against any High Yield Notes On-Loan Debt, except as permitted
by Clause 11.2 (Permitted High Yield Notes
Guarantee Payments and Permitted High Yield Notes On-Loan
Payments), Clause 14.3 (Filing of claims) or
Clause 19.2 (Permitted
High Yield Notes On-Loan and Permitted High Yield Notes Security Documents
enforcement); or
|
|
|
6.3.3
|
permit
to subsist or receive any Security over any assets of any member of the
Group, or any guarantee from any member of the Group for, or in respect
of, any High Yield Notes On-Loan
Debt;
|
provided,
however, that after the Senior Facility Discharge Date and the Interim Facility
Discharge Date the consent of the Senior Representatives shall be deemed to have
been given to an action prescribed in clause 6.3.3 to the extent such action is
not prohibited by the Senior Agreements.
-28-
|
7.
|
INVESTOR
DEBT
|
|
7.1
|
Investor
Debt
|
Until the
Final Discharge Date, no Investor shall, except with the prior consent of (a)
each Senior Representative unless such action is not prohibited by the covenants
in its respective Senior Agreement and (b) the High Yield Notes Trustee, unless
such action is not prohibited by the covenants in the High Yield Notes
Indenture:
|
|
7.1.1
|
demand
or receive payment, repayment or prepayment of any principal, interest or
other amount on or in respect of, or any distribution in respect of, any
Investor Debt in cash or in kind or apply any money or property in or
towards discharge of any Investor Debt, except as permitted by Clause 11.3
(Permitted Investor
Payments) or Clause 14.3 (Filing of
claims);
|
|
|
7.1.2
|
exercise
any set-off against any Investor Debt, except as permitted by Clause 11.3
(Permitted Investor
Payments) or Clause 14.3 (Filing of
claims);
|
|
|
7.1.3
|
permit
to subsist or receive any Security, or any guarantee, for, or in respect
of, any Investor Debt;
|
|
|
7.1.4
|
claim
or rank as a creditor in the insolvency, winding-up, bankruptcy or
liquidation of any member of the Group other than in accordance with
Clause 14.3 (Filing of
claims);
|
|
|
7.1.5
|
xxx,
claim or bring proceedings against any member of the Group for breach of
any representation, warranty or undertaking by any member of the Group
under or in connection with any Investor
Document;
|
|
|
7.1.6
|
xxx,
claim or bring proceedings against the provider of a Report in connection
with any Report nor receive any payment in connection with any such suit,
claim or proceeding;
|
|
|
7.1.7
|
take
or omit to take any action whereby the ranking and/or subordination
contemplated by this Agreement may be
impaired;
|
|
|
7.1.8
|
convert
any Investor Debt into shares of an
Obligor;
|
|
|
7.1.9
|
exercise
its voting rights as shareholder of the Company so as to permit or require
any member of the Group to pay, prepay, redeem, purchase, defease or
otherwise acquire any Investor Debt;
or
|
|
7.1.10
|
exercise
its voting rights as shareholder of the Company so as to permit or require
the declaration or payment by the Company of any dividend or distribution
on or in respect of the share capital of the Company or the redemption,
repayment, reduction, repurchase, cancellation or other extinguishment of
any share in the capital of the
Company.
|
|
7.2
|
Amendments to Investor
Documents
|
Until the
Senior Discharge Date and for the benefit of the holders of Senior Debt only, no
Obligor or Investor shall, except with the prior consent of (a) each Senior
Representative, unless such action is not prohibited by the covenants in the
Senior Agreement and (b) the High Yield Notes Trustee, unless, such action is
not prohibited by the covenants in the High Yield Notes Indenture, amend or give
any waiver or consent under any provision of any Investor Document which would
result in:
|
|
7.2.1
|
the
interests of the Senior Finance Parties (if before the Senior Facility
Discharge Date) or the Interim Facility Finance Parties (if after the
Senior Facility Discharge Date), or the ranking and/or subordination
contemplated by this Agreement, being adversely
affected;
|
-29-
|
|
7.2.2
|
any
change to the basis on which any amounts (including fees) accrue, are
calculated or are payable under any Investor
Document;
|
|
|
7.2.3
|
any
member of the Group being subject to more onerous obligations as a whole
than those contained in the Investor Documents at the date of this
Agreement or obligations which would conflict with any provision of this
Agreement; or
|
|
|
7.2.4
|
any
member of the Group becoming liable to make an additional payment (or
increase an existing payment) under any Investor Document, other than any
liability arising under the Investor Documents as originally entered
into,
|
other
than any amendment, waiver or consent purely of a technical or administrative
nature.
|
8.
|
INTERCOMPANY
DEBT
|
|
8.1
|
Intercompany
Lenders
|
Until the
Final Discharge Date, but for the benefit of the High Yield Notes with respect
to paragraph 8.1.6 below only, no Intercompany Lender shall, except with the
prior consent of (a) each Senior Representative, unless such action is not
prohibited by the covenants in its respective Senior Agreement and (b) the High
Yield Notes Trustee, unless, such action is not prohibited by the covenants in
the High Yield Notes Indenture:
|
|
8.1.1
|
demand
or receive payment, repayment or prepayment of any principal, interest or
other amount on or in respect of, or any distribution in respect of, any
Intercompany Debt in cash or in kind or apply any money or property in or
towards discharge of any Intercompany Debt, except as permitted by Clause
11.4 (Permitted
Intercompany Payments) or Clause 14.3 (Filing of
claims);
|
|
|
8.1.2
|
exercise
any set-off against any Intercompany Debt, except as permitted by Clause
11.4 (Permitted
Intercompany Payments) or Clause 14.3 (Filing of
claims);
|
|
|
8.1.3
|
permit
to subsist or receive any Security, or any guarantee, for, or in respect
of, any Intercompany Debt;
|
|
|
8.1.4
|
claim
or rank as a creditor in the insolvency, winding-up, bankruptcy or
liquidation of any member of the Group other than in accordance with
Clause 14.3 (Filing of
claims);
|
|
|
8.1.5
|
xxx,
claim or bring proceedings against any Obligor or Intercompany Borrower
for breach of any representation, warranty or undertaking by any Obligor
or Intercompany Borrower under or in connection with any Intercompany
Document; or
|
|
|
8.1.6
|
take
or omit to take any action whereby the ranking and/or subordination
contemplated by this Agreement may be
impaired.
|
|
8.2
|
Intercompany
Borrowers
|
Until the
Final Discharge Date, but for the benefit of the High Yield Notes with respect
to paragraph 8.2.4 below only, no Intercompany Borrower shall, except with the
prior consent of (a) each Senior Representative, unless such action is not
prohibited by the covenants in its respective Senior Agreement and (b) the High
Yield Notes Trustee, unless, such action is not prohibited by the covenants in
the High Yield Notes Indenture:
|
|
8.2.1
|
pay,
repay or prepay any principal, interest or other amount on or in respect
of, or make any distribution in respect of, or redeem, purchase or
defease, any Intercompany Debt in cash or in kind, except as permitted by
Clause 11.4 (Permitted
Intercompany Payments) or Clause 14.3 (Filing of
claims);
|
-30-
|
|
8.2.2
|
exercise
any set-off against any Intercompany Debt, except as permitted by Clause
11.4 (Permitted
Intercompany Payments) or Clause 14.3 (Filing of
claims);
|
|
|
8.2.3
|
create
or permit to subsist any Security over any of its assets, or give any
guarantee, for, or in respect of, any Intercompany Debt;
or
|
|
|
8.2.4
|
take
or omit to take any action whereby the ranking and/or subordination
contemplated by this Agreement may be
impaired.
|
|
9.
|
REPRESENTATIONS
|
Representations
of the Subordinated Parties
Each
Subordinated Party makes the representations and warranties set out in this
Clause 9.1 to each Senior Party and to each High Yield Notes Finance Party (but
not for the benefit of the High Yield Noteholders) only in relation to itself in
each case on the date of this Agreement:
|
9.1
|
it
is duly incorporated (if a corporate person) or duly established (in any
other case) and validly existing under the law of its jurisdiction of
incorporation or formation;
|
|
9.2
|
it
has the power to own its assets and carry on its business as it is being,
and is proposed to be, conducted;
|
|
9.3
|
subject
to any applicable Reservations, the obligations expressed to be assumed by
it in this Agreement are legal, valid, binding and
enforceable;
|
|
9.4
|
the
entry into and performance by it of, and the transactions contemplated by,
this Agreement do not and will not conflict with: (i) any law
or regulation applicable to it; (ii) its constitutional documents or (iii)
any agreement or instrument binding on it or any of its assets, in each
case to the extent that it would reasonably be expected to have a Material
Adverse Effect;
|
|
9.5
|
it
has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of
this Agreement and the transactions contemplated by this
Agreement;
|
|
9.6
|
subject
to any applicable Reservations, all Authorisations required for the
performance by it of this Agreement and the transactions contemplated by
this Agreement and to make this Agreement admissible in evidence in its
jurisdiction of incorporation have been obtained or effected and are in
full force and effect;
|
|
9.7
|
the
documents to which it is a party as described in this Agreement (if any)
contain all the terms and conditions of the Investor Debt or Intercompany
Debt (as relevant); and
|
|
9.8
|
subject
to the Security under the Security Documents, it is the sole beneficial
owner of the Investor Debt or Intercompany Debt (as relevant) owed to
it.
|
|
10.
|
UNDERTAKINGS
OF THE OBLIGORS
|
-31-
|
10.1
|
Hedging
Debt
|
Until the
Senior Facility Discharge Date, no Obligor shall (and the Company shall ensure
that no member of the Group will), except with the prior consent of the Senior
Agent under the Senior Facility Agreement:
|
10.1.1
|
create
or permit to subsist any Security over any of its assets, or give any
guarantee, for, or in respect of, any Hedging Debt, other than under any
Senior Security Document and the guarantees in any applicable Senior
Finance Document.
|
|
10.2
|
Second Lien
Debt
|
Until the
Senior Facility Discharge Date, no Obligor shall (and the Company shall ensure
that no member of the Group will), except with the prior consent of the Senior
Agent under the Senior Facility Agreement:
|
10.2.1
|
exercise
any set-off against any Second Lien
Debt;
|
|
10.2.2
|
create
or permit to subsist any Security over any assets of any member of the
Group, or give any guarantee, from any member of the Group, for, or in
respect of, any Second Lien Debt, other than under any Interim Facility
Security Document, Second Lien Notes Security Document and the guarantees
in or required by any applicable Second Lien Finance Document;
or
|
|
10.2.3
|
transfer
any rights and/or obligations under the Second Lien Finance Documents
unless simultaneously with that transfer, the relevant transferee signs an
Accession Agreement.
|
|
10.3
|
High Yield Notes Guarantee
Debt
|
Until the
Senior Discharge Date, except with the prior consent of each Senior
Representative under its respective Senior Agreement, no Obligor shall (and the
Company shall ensure that no Obligor will):
|
10.3.1
|
pay,
repay or prepay any principal, interest or other amount on or in respect
of, or make any distribution in respect of, any High Yield Notes Guarantee
Debt in cash or in kind or apply any such money or property in or towards
discharge of any High Yield Notes Guarantee Debt except as permitted by
Clause 11.2 (Permitted
High Yield Notes Guarantee Payments and Permitted High Yield Notes On-Loan
Payments), Clause 14.3 (Filing of claims) or
Clause 19.2 (Permitted
High Yield Notes On-Loan and Permitted High Yield Notes Security Documents
enforcement) and except for any payment by the Company with respect
to the High Yield Notes Debt which is not otherwise in violation of this
Agreement;
|
|
10.3.2
|
exercise
any set-off against any High Yield Notes Guarantee Debt, except as
permitted by Clause 11.2 (Permitted High Yield Notes
Guarantee Payments and Permitted High Yield Notes On-Loan
Payments), Clause 14.3 (Filing of claims) or
Clause 19.2 (Permitted
High Yield Notes On-Loan and Permitted High Yield Notes Security Documents
enforcement);
|
|
10.3.3
|
create
or permit to subsist any Security over any assets of any member of the
Group or give any guarantee from any member of the Group for, or in
respect of, any High Yield Notes Guarantee Debt, other than Security
created pursuant to any High Yield Notes Security Documents and the High
Yield Notes Guarantees; or
|
|
10.3.4
|
amend
the terms of any High Yield Notes Finance Document in a manner that would
be inconsistent with the High Yield Notes Major Terms or the High Yield
Notes Guarantee Maturity Provisions unless previously approved by each
Senior Representative under its respective Senior
Agreement;
|
-32-
provided,
however, that upon the Senior Facility Discharge Date and the Interim Facility
Discharge Date the consent of the Senior Representatives shall be deemed to have
been given to an action prescribed in clauses 10.3.3 or 10.3.4 to the extent
such action is not prohibited by the Senior Agreements.
Nothing
in this Clause 10 shall prevent the payment of, and receipt by the High Yield
Notes Trustee of, any High Yield Notes Trustee Amounts.
|
10.4
|
High Yield Notes On-Loan
Debt
|
Until the
Senior Discharge Date, except with the prior consent of each Senior
Representative under its respective Senior Agreement, no Obligor shall (and the
Company shall ensure that no Obligor will):
|
10.4.1
|
pay,
repay or prepay any principal, interest or other amount on or in respect
of, or make any distribution in respect of, any High Yield Notes On-Loan
Debt in cash or in kind or apply any money or property in or towards
discharge of any High Yield Notes On-Loan Debt or otherwise pay or advance
any amount to the Company except as permitted by Clause 11.2 (Permitted High Yield Notes
Guarantee Payments and Permitted High Yield Notes On-Loan
Payments), Clause 14.3 (Filing of claims) or
Clause 19.2 (Permitted
High Yield Notes On-Loan and Permitted High Yield Notes Security Documents
enforcement);
|
|
10.4.2
|
exercise
any set-off against any High Yield Notes On-Loan Debt, except as permitted
by Clause 11.2 (Permitted High Yield Notes
Guarantee Payments and Permitted High Yield Notes On-Loan
Payments), Clause 14.3 (Filing of claims) or
Clause 19.2 (Permitted
High Yield Notes On-Loan and Permitted High Yield Notes Security Documents
enforcement);
|
|
10.4.3
|
create
or permit to subsist or receive any Security over any assets of any member
of the Group, or give any guarantee from any member of the Group, for, or
in respect of, any High Yield Notes On-Loan Debt;
or
|
|
10.4.4
|
amend
any provision of the High Yield Notes On-Loan so that it would conflict
with any of the terms set out in Clause 6.1 (High Yield Notes On-Loan
Debt);
|
provided,
however, that upon the Senior Facility Discharge Date and the Interim Facility
Discharge Date the consent of the Senior Representatives shall be deemed to have
been given to an action prescribed in clauses 10.4.3 or 10.4.4 to the extent
such action is not prohibited by the Senior Agreements.
|
10.5
|
Subordinated
Debt
|
Until the
Final Discharge Date and to the extent for the benefit of the holders of the
High Yield Notes with respect to paragraph 10.5.4 below only, no Obligor shall
(and the Company shall ensure that no member of the Group will) except with the
prior consent of (a) each Senior Representative unless such action is not
prohibited by the covenants in its respective Senior Agreement and (b) the High
Yield Notes Trustee, unless such action is not prohibited by the covenants in
the High Yield Notes Indenture:
|
10.5.1
|
pay,
repay or prepay any principal, interest or other amount on or in respect
of, or make any distribution in respect of, or redeem, purchase or
defease, any Subordinated Debt in cash or in kind, except for the
capitalisation of interest in accordance with the Finance Documents or as
permitted by Clause 11 (Permitted Payments) or
Clause 14.3 (Filing of
claims);
|
|
10.5.2
|
exercise
any set-off against any Subordinated Debt, except as permitted by Clause
11 (Permitted
Payments) or Clause 14.3 (Filing of
claims);
|
|
10.5.3
|
create
or permit to subsist any Security over any of its assets, or give any
guarantee, for, or in respect of, any Subordinated
Debt;
|
-33-
|
10.5.4
|
amend,
terminate or give any waiver or consent under any Investor Document or
Intercompany Document, other than any amendment, termination, waiver or
consent purely of a technical or administrative nature;
or
|
|
10.5.5
|
take
or omit to take any action whereby the ranking and/or subordination
contemplated by this Agreement may be
impaired.
|
|
11.
|
PERMITTED
PAYMENTS
|
|
11.1
|
Permitted Hedging
Payments
|
The
relevant Obligor may pay (by setoff or otherwise), and the Hedging Banks may
receive and retain, payments in respect of Hedging Debt arising under the
Hedging Documents.
|
11.2
|
Permitted High Yield Notes
Guarantee Payments and Permitted High Yield Notes On-Loan
Payments
|
|
11.2.1
|
The
High Yield Notes Finance Parties and High Yield Noteholders may receive
and retain Permitted Junior Securities in respect of the High Yield Notes
Guarantee Debt and the High Yield Notes Trustee may receive and retain
High Yield Notes Trustee Amounts.
|
|
11.2.2
|
The
High Yield Notes Guarantors may pay and the High Yield Notes Trustee may
receive and retain payments in respect of High Yield Notes Trustee Amounts
incurred on or behalf of the High Yield Notes Trustee in connection with
carrying out its duties or exercising powers or discretion under the High
Yield Notes Finance Documents.
|
|
11.2.3
|
Subject
to Clause 12.1 (Suspension of Permitted High
Yield Notes Guarantee Payments and Permitted High Yield Notes On-Loan
Payments) and Clause 14 (Subordination on
insolvency):
|
|
|
(a)
|
the
High Yield Notes Guarantors may pay and the High Yield Notes Finance
Parties and High Yield Noteholders may receive and retain payments in
respect of any interest, fees, expenses or other amounts (including High
Yield Notes Trustee Amounts and reasonable legal fees and taxes) on or in
respect of any High Yield Notes Guarantee Debt in accordance with the High
Yield Notes Finance Documents; and
|
|
|
(b)
|
Basell
Holdings may pay, and the holders of the High Yield Notes On-Loan may
receive and retain and distribute payment in respect of, any interest,
fees, expenses or other amounts (including High Yield Notes Trustee
Amounts and reasonable legal fees and taxes) on or in respect of the High
Yield Notes On-Loan Debt in accordance with the terms of the High Yield
Notes On-Loan Documents,
|
provided
that all such payments received under the High Yield Notes On-Loan are applied
in payment of the Company’s obligations under the High Yield Notes (or amounts
due in respect thereof).
|
11.2.4
|
Until
the Senior Discharge Date, except with the prior consent of each Senior
Representative under its respective Senior Agreement, no Obligor may pay,
and no holder of the High Yield Notes On-Loan may receive and retain
payment in respect of any principal in respect of the High Yield Notes
On-Loan other than in connection with the repayment of the High Yield
Notes to the extent not prohibited by the Senior
Agreements.
|
-34-
|
11.3
|
Permitted Investor
Payments
|
Subject
to Clause 12.2 (Suspension of
Permitted Investor Payments) and Clause 14 (Subordination on insolvency),
the relevant Obligor may pay, and the relevant Investor may receive and retain
payments in respect of, any Investor Debt in accordance with the Senior
Agreements and the High Yield Notes Indenture.
|
11.4
|
Permitted Intercompany
Payments
|
Subject
to Clause 12.3 (Suspension of
Permitted Intercompany Payments) and Clause 14 (Subordination on insolvency),
the relevant Intercompany Borrower may pay (by cash, set off or otherwise), and
the relevant Intercompany Lender may receive and retain payments in respect of,
any Intercompany Debt in accordance with the Senior Agreements provided that no
such payment is made to the Company other than to the extent to make or fund a
dividend or other distribution permitted to be made by the Senior Agreements on
the equity interests of the Company provided that no such payment is made to the
Company other than (a) to the extent to make or fund a dividend or other
distribution permitted to be made by the Senior Agreements on the equity
interests of the Company, (b) to the extent required to fund legal, audit, tax
and other expenses directly relating to the administration of the Company
including customary compensation payable to the Company’s directors or (if the
Company is a partnership) the directors of its general partner in an amount not
exceeding EUR 3,000,000, and (c) to fund payments under the Management
Agreement, the Tax Sharing Agreement and other Restricted Payments other than
Restricted Investments (each as defined in the Interim Facility Agreement) other
than those described in (a) and (b) above that the Company is entitled to make
pursuant to the Senior Facility Agreement provided the same are so applied
within 15 days of receipt.
|
11.5
|
Set-off
|
In this
Clause 11, a payment or receipt includes a discharge by set-off.
|
12.
|
SUSPENSION
OF PERMITTED PAYMENTS
|
|
12.1
|
Suspension of Permitted High
Yield Notes Guarantee Payments and Permitted High Yield Notes On-Loan
Payments
|
|
12.1.1
|
Until
the Senior Discharge Date except with the prior consent of each Senior
Representative under its respective Senior Agreement and subject to Clause
14 (Subordination on
insolvency):
|
|
|
(a)
|
no
High Yield Notes Guarantor may make, and no High Yield Notes Finance Party
or High Yield Noteholder may receive, any Permitted High Yield Notes
Guarantees Payment (other than Permitted Junior Securities and High Yield
Notes Trustee Amounts); and
|
|
|
(b)
|
Basell
Holdings may not make, and the holders of the High Yield Notes On-Loan may
not receive, any Permitted High Yield Notes On-Loan
Payment,
|
if, in
each case:
|
(i)
|
a
Senior Payment Default is continuing;
or
|
|
(ii)
|
a
Senior Default, other than a Senior Payment Default, is continuing from
the date which is one Business Day after the date on which a
Representative in respect of Senior Debt then having a Senior Default
delivers a High Yield Notes Stop Notice to a Responsible Officer of the
High Yield Notes Trustee and to the Company until the earliest
of:
|
-35-
|
|
(1)
|
the
date falling 179 days after delivery of that High Yield Notes Stop
Notice;
|
|
|
(2)
|
if
a High Yield Notes Standstill Period is in effect at any time after the
relevant Senior Default giving rise to delivery of that High Yield Notes
Stop Notice, the date on which that High Yield Notes Standstill Period
expires;
|
|
|
(3)
|
the
date on which the relevant Senior Default(s) have been remedied or waived
in accordance with all applicable Senior
Agreements;
|
|
|
(4)
|
the
date on which the Representative who delivered the applicable High Yield
Notes Stop Notice delivers a notice to the High Yield Notes Trustee and
the Company cancelling the High Yield Notes Stop
Notice;
|
|
|
(5)
|
the
date on which the Security Agent or the High Yield Notes Trustee takes
Enforcement Action permitted under this Agreement in respect of the High
Yield Notes Guarantee Debt; and
|
|
|
(6)
|
the
Senior Discharge Date.
|
|
12.1.2
|
Unless
the High Yield Notes Finance Parties, High Yield Noteholders and the
holders of the High Yield Notes On-Loan waive this
requirement:
|
|
|
(a)
|
a
new High Yield Notes Stop Notice may not be delivered unless and until 365
days have elapsed since the delivery of the immediately prior High Yield
Notes Stop Notice; and
|
|
|
(b)
|
no
High Yield Notes Stop Notice may be delivered by a Representative in
reliance on a Senior Default more than 45 days after the earlier of (x)
the date such Representative received notice of that Senior Default and
(y) the date the agency department of such Representative otherwise
becomes aware of such Senior
Default.
|
|
12.1.3
|
A
Representative may only serve one High Yield Notes Stop Notice with
respect to the same event or set of circumstances. This shall not affect
the right of any Representative to issue a High Yield Notes Stop Notice in
respect of any other event or set of
circumstances.
|
|
12.1.4
|
For
the avoidance of doubt, this Clause
12.1:
|
|
|
(a)
|
acts
as a suspension of payment and not as a waiver of the right to receive
payment on the dates such payments are
due;
|
|
|
(b)
|
will
not prevent the accrual or capitalisation of interest (including default
interest) in accordance with the High Yield Notes Finance
Documents;
|
|
|
(c)
|
will
not prevent the payment of any High Yield Notes Trustee
Amount;
|
|
|
(d)
|
will
not prevent the payment of:
|
|
(i)
|
audit
fees, directors’ fees, taxes and any other proper and incidental expenses
required to maintain existence;
and
|
|
(ii)
|
amounts
required to comply with obligations under the High Yield Finance Documents
(but not any payment in respect of interest and principal or other monies
to the High Yield Notes Finance Parties and, without limitation to the
generality of the foregoing, not any payment in connection with any
redemption, purchase or defeasance of the High Yield Notes), including
costs and expenses (if any) related to public reporting and ongoing
administration of the High Yield Notes Finance
Documents.
|
-36-
|
12.2
|
Suspension of Permitted
Investor Payments
|
Until the
Senior Discharge Date (and for the benefit of the holders of Senior Debt only)
and subject to Clause 14 (Subordination on insolvency),
no Obligor may make, and no Investor may receive, any Permitted Investor Payment
if:
|
12.2.1
|
a
Senior Declared Default is continuing;
or
|
|
12.2.2
|
a
Suspension Event is continuing.
|
|
12.3
|
Suspension of Permitted
Intercompany Payments
|
Until the
Senior Discharge Date (for the benefit of holders of Senior Debt only) and
subject to Clause 14 (Subordination on insolvency),
no Intercompany Borrower may make, and no Intercompany Lender may receive, any
Permitted Intercompany Payment:
|
12.3.1
|
if
a Senior Declared Default is continuing;
or
|
|
12.3.2
|
in
relation to the Issuer Intercompany Debt only, a Suspension Event is
continuing.
|
|
13.
|
TURNOVER
OF NON-PERMITTED PAYMENTS
|
|
13.1
|
Turnover
|
Until the
Senior Discharge Date (and, for the purpose of paragraph 13.1.9 below only, the
High Yield Notes Discharge Date) if:
|
13.1.1
|
any
Hedging Bank receives or recovers any Hedging
Recoveries;
|
|
13.1.2
|
any
Interim Facility Finance Party receives or recovers any Interim Facility
Recoveries except as provided under Clause 20 (Application of
Recoveries);
|
|
13.1.3
|
any
Second Lien Notes Finance Party or Second Lien Noteholder receives or
recovers any Second Lien Notes Recoveries except as provided under Clause
20 (Application of
Recoveries) and except where such party does not have actual
knowledge that such payment was received or recovered from any person
(directly or indirectly) which had benefited from an amount received or
recovered in violation of such Clause 20 (Application of
Recoveries);
|
|
13.1.4
|
any
Arco Notes Finance Party or Arco Noteholder receives or recovers any Arco
Notes Recoveries except as provided under Clause 20 (Application of
Recoveries) and except where such party does not have actual
knowledge that such payment was received or recovered from any person
(directly or indirectly) which had benefited from an amount received or
recovered in violation of such Clause 20 (Application of
Recoveries);
|
|
13.1.5
|
any
Equistar Notes Finance Party or Equistar Noteholder receives or recovers
any Equistar Notes Recoveries except as provided under Clause 20 (Application of
Recoveries) and except where such party does not have actual
knowledge that such payment was received or recovered from any person
(directly or indirectly) which had benefited from an amount received or
recovered in violation of such Clause 20 (Application of
Recoveries);
|
-37-
|
13.1.6
|
any
High Yield Notes Finance Party or High Yield Noteholder receives or
recovers any High Yield Notes Guarantees Recoveries except for any
Permitted High Yield Notes Guarantees
Payments;
|
|
13.1.7
|
any
holder of the High Yield Notes On-Loan receives or recovers any High Yield
Notes On-Loan Recoveries except for any Permitted High Yield Notes On-Loan
Payments;
|
|
13.1.8
|
any
High Yield Notes Finance Party or High Yield Noteholder receives or
recovers any High Yield Notes Recoveries except where such party does not
have actual knowledge that such payment was received or recovered from any
person (directly or indirectly) which had benefited from an amount
received or recovered in violation of the terms of this
Agreement;
|
|
13.1.9
|
any
Investor receives or recovers any Investor Recoveries except for any
Permitted Investor Payments; and
|
|
13.1.10
|
any
Intercompany Lender receives or recovers any Intercompany Recoveries
except for any Permitted Intercompany
Payments,
|
(save for
any amount received by the Second Lien Notes Trustee, Arco Notes Trustee,
Equistor Notes Trustee or the High Yield Notes Trustee and paid to the Second
Lien Noteholders, Arco Noteholders, Equistor Noteholders, or the High Yield
Noteholders, respectively, where at the time of such payment the Second Lien
Notes Trustee, Arco Notes Trustee, Equistar Notes Trustee or High Yield Notes
Trustee (as applicable) has no actual knowledge that such receipt or recovery
falls within paragraph 13.1.3, 13.1.4, 13.1.5 or 13.1.8, above, respectively),
that party (or the Second Lien Noteholder, Arco Noteholder, Equistar Noteholder
or High Yield Noteholder (as applicable)) shall:
|
13.1.11
|
within
three Business Days notify details of the receipt or recovery to the
Security Agent;
|
|
13.1.12
|
hold
any such assets and moneys received or recovered by it on trust for the
Security Agent for application in accordance with appropriate provision of
Clause 20 (Application of Recoveries);
and
|
|
13.1.13
|
within
three Business Days of demand by the Security Agent, pay an amount equal
to such receipt or recovery to the Security Agent for application in
accordance with appropriate provision of Clause 20 (Application of
Recoveries)).
|
|
13.2
|
Non-creation of
charge
|
Nothing
in this Clause 13 or any other provision of this Agreement is intended to or
shall create a charge or other Security.
|
13.3
|
Protection upon
turnover
|
If a
Party is obliged to pay any amount to the Security Agent in accordance with this
Clause 13 or Clause 14 (Subordination on
Insolvency):
|
13.3.1
|
the
relevant Obligor or Intercompany Borrower shall indemnify that person (to
the extent of its liability for the relevant amount so paid) for any
reasonable costs, liabilities and expenses properly incurred by it as a
result of it having to make that payment;
and
|
|
13.3.2
|
the
relevant Debt in respect of which such person made that payment to the
Security Agent will be deemed not to have been reduced or discharged in
any way or to any extent by the relevant payment, distribution, proceeds
or other discharge.
|
-38-
|
14.
|
SUBORDINATION
ON INSOLVENCY
|
|
14.1
|
Subordination
events
|
If:
|
14.1.1
|
any
order is made or resolution passed for the suspension of payments, a
moratorium of any indebtedness, winding-up, dissolution, administration or
reorganisation (by way of voluntary arrangement, scheme of arrangement or
otherwise) of any Obligor or Intercompany
Borrower;
|
|
14.1.2
|
any
Obligor or Intercompany Borrower enters into any composition, assignment
or arrangement with its creditors
generally;
|
|
14.1.3
|
any
liquidator, receiver, administrator, administrative receiver, compulsory
manager or other similar officer is appointed in respect of any Obligor or
Intercompany Borrower or any of its assets (other than for a permitted
reorganization or solvent winding up permitted by the Senior Facility
Agreement); or
|
|
14.1.4
|
any
Security over any assets of any Obligor or Intercompany Borrower is
enforced,
|
or any
analogous event occurs in any jurisdiction, this Clause 14 shall
apply.
|
14.2
|
Subordination
|
|
14.2.1
|
In
any of the circumstances mentioned in Clause 14.1 (Subordination
events):
|
|
|
(a)
|
the
High Yield Notes Guarantee Debt and the High Yield Notes On-Loan Debt will
be subordinate in right of payment to the Senior Debt, ABL Debt and the
Hedging Debt; and
|
|
|
(b)
|
the
Intercompany Debt and the Investor Debt will be subordinate in right of
payment to the Senior Debt, ABL Debt, the Hedging Debt, the High Yield
Notes Debt, the High Yield Notes Guarantee Debt and the High Yield On-Loan
Debt.
|
|
14.2.2
|
In
the event that any of the circumstances mentioned in Clause 14.1 (Subordination events)
occur in relation to the Company, the Investor Debt as to which the
Company is an obligor will be subordinate in right of payment to the High
Yield Notes Debt.
|
|
14.3
|
Filing of
claims
|
|
14.3.1
|
In
any of the circumstances mentioned in Clause 14.1 (Subordination events),
until the Senior Discharge Date, the Security Agent may, and is hereby
irrevocably authorised on behalf of each Senior Secured Party, Unsecured
Senior Notes Finance Party, ABL Finance Party, High Yield Notes Finance
Party, holder of the High Yield Notes On-Loan and Subordinated Party
to:
|
|
|
(a)
|
demand,
claim, enforce and prove for the Junior
Debt;
|
|
|
(b)
|
file
claims and proofs, give receipts and take any proceedings in respect of
filing such claims or proofs and do anything which the Security Agent
considers necessary or desirable to recover the Junior Debt;
and
|
|
|
(c)
|
receive
all distributions of the Junior Debt for application in accordance with
Clause 20 (Application
of recoveries).
|
-39-
|
14.3.2
|
If
and to the extent that the Security Agent is not entitled, or elects not,
to take any of the action mentioned in paragraph 14.3.1 above, each Junior
Creditor (other than the High Yield Notes Trustee) shall do so promptly on
request by the Security Agent.
|
|
14.3.3
|
The
High Yield Notes Trustee shall in any event be entitled to request and
retain payment of any High Yield Notes Trustee
Amounts.
|
|
14.4
|
Distributions
|
Subject,
in the case of the High Yield Notes Trustee, to Clause 28 (High Yield Notes Trustee), in
any of the circumstances mentioned in Clause 14.1 (Subordination events), until
the Senior Discharge Date, each Junior Creditor will:
|
14.4.1
|
hold
all payments and distributions in cash or in kind received or receivable
by it in respect of the Junior Debt on trust for the Security Agent for
application in accordance with Clause 20.5 (General order of
application);
|
|
14.4.2
|
within
three Business Days of demand by the Security Agent, pay an amount equal
to any Junior Debt owing to it and discharged by set-off or otherwise to
the Security Agent for application in accordance with Clause 20.5 (General order of
application);
|
|
14.4.3
|
promptly
direct the trustee in bankruptcy, liquidator, assignee or other person
distributing the assets of the relevant Obligor or Intercompany Borrower
or their proceeds to pay distributions in respect of the Junior Debt
directly to the Security Agent; and
|
|
14.4.4
|
promptly
use its reasonable efforts to undertake any action requested by the
Security Agent to give effect to this Clause
14.4,
|
save
that, in each case, the High Yield Notes Finance Parties and the High Yield
Noteholders shall be entitled to receive and retain Permitted Junior Securities
and the High Yield Notes Trustee shall be entitled to receive and retain any
High Yield Notes Trustee Amounts.
|
14.5
|
Voting
|
|
14.5.1
|
In
any of the circumstances mentioned in Clause 14.1 (Subordination events),
until the Senior Discharge Date:
|
|
|
(a)
|
the
Security Agent may, and is hereby irrevocably authorised on behalf of each
Senior Secured Party, holder of the High Yield Notes On-Loan and
Subordinated Party to, exercise all of such parties’ powers of convening
meetings, voting and representation in respect of the Security Documents;
and
|
|
|
(b)
|
each
such party other than the Second Lien Notes Trustee and the High Yield
Notes Trustee shall promptly execute and/or deliver to the Security Agent
such forms of proxy and representation as it may require to facilitate any
such action.
|
|
14.5.2
|
If
and to the extent that the Security Agent is not entitled, or elects not,
to exercise a power under paragraph 14.5.1 above, each such party
shall:
|
|
|
(a)
|
exercise
that power as the Security Agent (acting on the instructions of an
Instructing Group) directs; and
|
|
|
(b)
|
not
exercise that power so as to impair the ranking and/or subordination
contemplated by this Agreement.
|
-40-
|
14.5.3
|
Nothing
in this Clause 14.5 entitles the Security Agent (or an Instructing Group)
to exercise or require any such Junior Creditor referred to in paragraph
14.5.1(a) above to exercise a power of voting or representation to waive,
reduce, discharge, extend the due date for repayment of or reschedule any
such Junior Debt of such Junior
Creditor.
|
|
14.6
|
Acknowledgement of structural,
contractual and effective
subordination
|
It is
acknowledged and agreed by:
|
14.6.1
|
the
Investors that the Senior Parties, Second Lien Noteholders, Unsecured
Senior Noteholders, High Yield Notes Finance Parties and High Yield
Noteholders are relying on the structural subordination of the Investor
Debt to the Senior Debt, ABL Debt, High Yield Notes Guarantee Debt and
High Yield Notes On-Loan Debt, the contractual subordination of the
Investor Debt to the High Yield Notes Debt and the effective subordination
of the Investor Debt to the claims resulting from the Security created by
the Company over its present and future
assets;
|
|
14.6.2
|
the
High Yield Notes Finance Parties, the High Yield Noteholders and the
Company that the Senior Parties, Second Lien Noteholders and Unsecured
Senior Noteholders, are relying on the structural subordination of the
High Yield Notes Debt to the Senior Debt, ABL Debt or Hedging Debt (other
than any guarantee by the Company of the Senior Debt or Hedging Debt
undertaken by the Company directly), the contractual subordination of the
High Yield Notes Guarantee Debt and the High Yield Notes On-Loan Debt to
the Senior Debt and the effective subordination of the High Yield Notes to
the claims resulting from the Security created by the Company over its
present and future assets;
|
|
14.6.3
|
the
Obligors and Intercompany Lenders that the Senior Parties, Second Lien
Noteholders, Unsecured Senior Noteholders, High Yield Notes Finance
Parties and High Yield Noteholders are relying on the contractual and/or
effective subordination of the Intercompany Debt to the Senior Debt, ABL
Debt, High Yield Notes Debt, High Yield Notes Guarantee Debt and High
Yield Notes On-Loan Debt; and
|
|
14.6.4
|
all
the Parties that matters such as: (i) the establishment and
maintenance of separate entities such as Basell Holdings, Basell Funding,
Basell Germany Holdings GmbH, Basell Finance Company B.V. and the Company,
and (ii) the various obligations under this Agreement to forebear, turn
over, restrict right of action or require action, are intended to help the
different classes of lenders and finance parties delineate and maintain
the various repayment obligations and the ranking of such obligations as
set forth in this Agreement.
|
|
14.7
|
General
forbearance
|
In
connection with any Insolvency Event involving a case or proceeding under the
bankruptcy laws of the United States, the High Yield Notes Trustee (on behalf of
itself and the High Yield Noteholders) and each other Junior
Creditor:
|
14.7.1
|
waive
any right to challenge or dispute actions in accordance with this
Agreement and the Security Documents taken by the Security Agent on behalf
of the Senior Debt to seek adequate protection with respect to the
Security securing the Senior Secured
Debt;
|
|
14.7.2
|
waive
any right to challenge the validity, perfection, priority or senior rights
of the Senior Debt and Hedging Debt as provided herein;
and
|
|
14.7.3
|
consent
to any use of cash collateral approved by the Security Agent on behalf of
the Senior Secured Debt, provided that the proceeds are treated in
accordance with the lien priorities established herein and in the Security
Documents.
|
-41-
|
15.
|
FAILURE
OF TRUSTS
|
Subject,
in the case of a Trustee, to Clause 28 (Trustees), if any trust
intended to arise pursuant to Clause 13.1 (Turnover) or Clause 14.4
(Distributions) fails
or for any reason (including the laws of any jurisdiction in which any assets,
moneys, payments or distributions may be situated) cannot be given effect to,
the relevant Party will pay to the Security Agent for application in accordance
with the applicable provisions of Clause 20 (Application of Recoveries) an
amount equal to the amount (or the value of the relevant assets) intended to be
so held on trust for the Security Agent.
|
16.
|
PROTECTION
OF SUBORDINATION
|
|
16.1
|
Continuing
subordination
|
The
subordination provisions in this Agreement shall remain in full force and effect
by way of continuing subordination and shall not be affected in any way by any
intermediate payment or discharge in whole or in part of any Debt.
|
16.2
|
Waiver of
defences
|
Neither
the subordination in this Agreement nor the obligations of any Senior Party,
Second Lien Noteholder, Unsecured Senior Noteholder, High Yield Notes Finance
Party, High Yield Noteholder, holder of the High Yield Notes On-Loan,
Subordinated Party, Obligor or Intercompany Borrower shall be affected in any
way by an act, omission, matter or thing which, but for this Clause 16, would
reduce, release or prejudice the subordination or any of those obligations in
whole or in part, (without limitation and whether or not known to any Senior
Party, Second Lien Noteholder, Unsecured Senior Noteholder, High Yield Notes
Finance Party, High Yield Noteholder, holder of the High Yield Notes On-Loan,
Subordinated Party, Obligor or Intercompany Borrower or any other person)
including:
|
16.2.1
|
any
time, waiver or consent granted to, or composition with, any
person;
|
|
16.2.2
|
the
release of any person under the terms of any composition or arrangement
with any creditor of any person;
|
|
16.2.3
|
the
taking, variation, compromise, exchange, renewal or release of, or refusal
or neglect to perfect, take up or enforce, any rights against, or security
over assets of, any person or any non-presentation or non-observance of
any formality or other requirement in respect of any instrument or any
failure to realise the full value of any
security;
|
|
16.2.4
|
any
incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of any
person;
|
|
16.2.5
|
any
amendment (however fundamental) or replacement of a Finance Document or
any other document or security (other than with respect to the Notes
Finance Parties and Noteholders in accordance with their respective Notes
Indenture);
|
|
16.2.6
|
any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or
security;
|
|
16.2.7
|
any
insolvency or similar proceedings;
or
|
|
16.2.8
|
any
postponement, discharge, reduction, non-provability or other similar
circumstance affecting any obligation of any person under any Finance
Document resulting from any insolvency, liquidation or dissolution
proceedings or from any law, regulation or
order.
|
-42-
|
16.3
|
Appropriations by the Senior
Finance Parties
|
Until the
Senior Facility Discharge Date has occurred, each Senior Finance Party and
Hedging Bank (or any trustee or agent on its behalf) may, subject to its
obligations under this Agreement:
|
16.3.1
|
apply
any moneys or other assets received or recovered by it under this
Agreement or from any person against the Senior Debt or the Hedging Debt
(as relevant) owed to it, in accordance with the Senior Facilities
Agreement, in the case of each Senior Finance Party, or such order as it
sees fit, in the case of each Hedging
Bank;
|
|
16.3.2
|
apply
any moneys or other assets received or recovered by it from any person
(other than any moneys or other assets received or recovered under the
Senior Finance Documents, or the Hedging Documents (as relevant) or under
this Agreement) against any liability of the relevant person to it other
than the Senior Debt, the Hedging Debt (as relevant) owed to it;
or
|
|
16.3.3
|
after
the Acceleration Date, unless or until such moneys or other assets
received or recovered by it under the Senior Finance Documents or the
Hedging Documents (as relevant) or under this Agreement in aggregate are
sufficient to bring about the Senior Discharge Date, if otherwise applied
in accordance with the provisions of this Agreement, hold in an
interest-bearing suspense account any moneys or other assets received from
any person.
|
|
16.4
|
Appropriations by the Interim
Facility Finance Parties
|
Until the
Interim Facility Discharge Date has occurred, each Interim Facility Finance
Party (or any trustee or agent on its behalf) may, subject to its obligations
under this Agreement:
|
16.4.1
|
apply
any moneys or other assets received or recovered by it under this
Agreement or from any person against the Interim Facility Debt owed to it,
in such order as it sees fit;
|
|
16.4.2
|
apply
any moneys or other assets received or recovered by it from any person
(other than any moneys or other assets received or recovered under the
Interim Facility Finance Documents or under this Agreement) against any
liability of the relevant person to it other than the Interim Facility
Debt owed to it; or
|
|
16.4.3
|
after
the Acceleration Date, unless or until such moneys or other assets in
aggregate received or recovered by it under the Interim Facility Finance
Documents are sufficient to bring about the Interim Facility Discharge
Date, if otherwise applied in accordance with the provisions of this
Agreement, hold in an interest-bearing suspense account any moneys or
other assets received from any
person.
|
|
16.5
|
Appropriations by the Second
Lien Notes Finance Parties and Second Lien
Noteholders
|
Until the
Second Lien Notes Discharge Date has occurred, each Second Lien Notes Finance
Party and Second Lien Noteholder (or any trustee or agent on its behalf) may,
subject to its obligations under this Agreement:
|
16.5.1
|
apply
any moneys or other assets received or recovered by it under this
Agreement or from any person against the Second Lien Notes Debt owed to
it, in such order as it sees fit;
|
|
16.5.2
|
apply
any moneys or other assets received or recovered by it from any person
(other than any moneys or other assets received or recovered under the
Second Lien Notes Finance Documents or under this Agreement) against any
liability of the relevant person to it other than the Second Lien Notes
Debt owed to it; or
|
-43-
|
16.5.3
|
after
the Acceleration Date, unless or until such moneys or other assets in
aggregate received or recovered by it under the Second Lien Notes Finance
Documents are sufficient to bring about the Second Lien Notes Discharge
Date, if otherwise applied in accordance with the provisions of this
Agreement, hold in an interest-bearing suspense account any moneys or
other assets received from any person provided, however, that the Second
Lien Notes Trustee Amounts will not have to be so
held.
|
|
16.6
|
Appropriations by the Unsecured
Senior Notes Finance Parties and Unsecured Senior
Noteholders
|
Until the
Unsecured Senior Notes Discharge Date has occurred, each Unsecured Senior Notes
Finance Party and Unsecured Senior Noteholder (or any trustee or agent on its
behalf) may, subject to its obligations under this Agreement:
|
16.6.1
|
apply
any moneys or other assets received or recovered by it under this
Agreement or from any person against the Unsecured Senior Notes Debt owed
to it, in such order as it sees
fit;
|
|
16.6.2
|
apply
any moneys or other assets received or recovered by it from any person
(other than any moneys or other assets received or recovered under the
Unsecured Senior Notes Finance Documents or under this Agreement) against
any liability of the relevant person to it other than the Unsecured Senior
Notes Debt owed to it; or
|
|
16.6.3
|
after
the Acceleration Date, unless or until such moneys or other assets in
aggregate received or recovered by it under the Unsecured Senior Notes
Finance Documents are sufficient to bring about the Unsecured Senior Notes
Discharge Date, if otherwise applied in accordance with the provisions of
this Agreement, hold in an interest-bearing suspense account any moneys or
other assets received from any person provided, however, that the
Unsecured Senior Notes Trustee Amounts will not have to be so
held.
|
|
16.7
|
Appropriations by the High
Yield Notes Finance Parties and High Yield
Noteholders
|
After the
Senior Discharge Date and until the High Yield Notes Discharge Date has
occurred, each High Yield Notes Finance Party and High Yield Noteholder (or any
trustee or agent on its behalf) may, subject to its obligations under this
Agreement:
|
16.7.1
|
apply
any moneys or other assets received or recovered by it under this
Agreement or from any person against the High Yield Notes Guarantee Debt
owed to it, in such order as it sees
fit;
|
|
16.7.2
|
apply
any moneys or other assets received or recovered by it from any person
(other than any moneys or other assets received or recovered under the
High Yield Notes Finance Documents or under this Agreement) against any
liability of the relevant person to it other than the High Yield Notes
Guarantee Debt owed to it; or
|
|
16.7.3
|
after
the Acceleration Date, unless or until such moneys or other assets in
aggregate received or recovered by it under the High Yield Notes Finance
Documents are sufficient to bring about the High Yield Notes Discharge
Date, if otherwise applied in accordance with the provisions of this
Agreement, hold in an interest-bearing suspense account any moneys or
other assets received from any person provided, however, that the High
Yield Trustee Amounts will not have to be so
held.
|
|
16.8
|
Appropriations by the holders
of the High Yield Notes
On-Loan
|
After the
Senior Discharge Date and until the High Yield Notes Discharge Date has
occurred, each holder of the High Yield Notes On-Loan (or any trustee or agent
on its behalf) may, subject to its obligations under this
Agreement:
-44-
|
16.8.1
|
apply
any moneys or other assets received or recovered by it under this
Agreement or from any person against the High Yield Notes On-Loan Debt
owed to it, in such order as it sees
fit;
|
|
16.8.2
|
apply
any moneys or other assets received or recovered by it from any person
(other than any moneys or other assets received or recovered under the
High Yield Notes Finance Documents or under this Agreement) against any
liability of the relevant person to it other than the High Yield Notes
On-Loan Debt owed to it; or
|
|
16.8.3
|
after
the Acceleration Date, unless or until such moneys or other assets in
aggregate received or recovered by it under the High Yield Notes On-Loan
Documents are sufficient to bring about the High Yield Notes On-Loan
Discharge Date, if otherwise applied in accordance with the provisions of
this Agreement, hold in an interest-bearing suspense account any moneys or
other assets received from any
person.
|
|
17.
|
PRIORITY
|
|
17.1
|
Ranking
|
|
17.1.1
|
Except
as otherwise provided in this Agreement, all Security created pursuant
to:
|
|
|
(a)
|
the
Security Documents in respect of the Arco Notes Collateral will secure on
a first ranking basis the Senior Facility Debt, the Hedging Debt and the
Acro Notes Debt pari
passu between themselves and ahead of any Security in such Arco
Notes Collateral for the Second Lien Debt and any claims by the Unsecured
Senior Notes Finance Parties and the High Yield Notes Finance
Parties irrespective of the order of execution, creation, registration,
notice, enforcement or otherwise;
|
|
|
(b)
|
the
Security Documents in respect of the Equistar Notes Collateral will secure
on a first ranking basis the Senior Facility Debt, the Hedging Debt and
the Equistar Notes Debt pari passu between
themselves and ahead of any Security in such Equistar Notes Collateral for
the Second Lien Debt and any claims by the Unsecured Senior Notes Finance
Parties and the High Yield Notes Finance Parties irrespective
of the order of execution, creation, registration, notice, enforcement or
otherwise;
|
|
|
(c)
|
the
Security Documents in respect of the High Yield Notes Collateral will
secure on a first ranking basis the Senior Secured Debt, pari passu between
themselves and ahead of any Security in such High Yield Notes Collateral
for the High Yield Notes Debt and any claims by the Unsecured Senior Notes
Finance Parties and the High Yield Notes Finance Parties
irrespective of the order of execution, creation, registration, notice,
enforcement or otherwise;
|
|
|
(d)
|
the
Senior Security Documents (other than the Security Documents in respect of
the Arco Notes Collateral, the Equistar Notes Collateral and the High
Yield Notes Collateral) will secure on a first ranking basis the Senior
Facility Debt and the Hedging Debt pari passu (subject to
any limitation on the Debt which may be secured under the terms of the
Senior Security Document or this Agreement) between themselves and ahead
of any Security for the Second Lien Debt and any claims by the Unsecured
Senior Notes Finance Parties and the High Yield Notes Finance
Parties irrespective of the order of execution, creation, registration,
notice, enforcement or otherwise;
|
|
|
(e)
|
the
Second Lien Security Documents (other than the Second Lien Security
Documents in respect of the High Yield Collateral) will secure on a
second-ranking basis the Interim Facility Debt and the Second Lien Notes
Debt pari passu
irrespective of:
|
|
(i)
|
the
order of execution, creation, registration, notice, enforcement or
otherwise;
|
-45-
|
(ii)
|
the
date on which any other Debt,
arose;
|
|
(iii)
|
whether
a Senior Finance Party or Hedging Bank is obliged to advance any Senior
Debt or Hedging Debt; or
|
|
(iv)
|
any
fluctuation in the amount, or any intermediate discharge in whole or in
part, of any other Debt; and
|
|
|
(f)
|
the
High Yield Notes Security Documents will secure on a second-ranking basis
the High Yield Notes Debt and any High Yield Notes Guarantee Debt
irrespective of:
|
|
(i)
|
the
order of execution, creation, registration, notice, enforcement or
otherwise;
|
|
(ii)
|
the
date on which any other Debt
arose;
|
|
(iii)
|
whether
a Senior Finance Party or Hedging Bank is obliged to advance any Senior
Debt or Hedging Debt; or
|
|
(iv)
|
any
fluctuation in the amount, or any intermediate discharge in whole or in
part, of any other Debt.
|
|
17.1.2
|
Notwithstanding
paragraph 17.1.1, only Security permitted in accordance with the High
Yield Notes Major Terms shall secure the High Yield Notes
Debt.
|
|
17.1.3
|
The
High Yield Notes Guarantee Debt, the High Yield Notes On-Loan Debt, the
Investor Debt and Intercompany Debt, is and shall remain unsecured by the
Security Documents.
|
|
17.1.4
|
The
Parties acknowledge that the proceeds of enforcement of Security ranked by
this clause 17.1 shall be applied in accordance with Clause 20.1 (Order of
application).
|
|
17.2
|
Registration and
notice
|
The
Parties will co-operate with each other with a view to reflecting the priority
of the Security created pursuant to any Security Document in any register or
with any filing or registration authority and (other than the High Yield Notes
Trustee) in giving notice to any person of any of the Security created pursuant
to any Security Document.
|
18.
|
RESTRICTIONS
ON ENFORCEMENT
|
|
18.1
|
Restrictions on enforcement by
the Hedging Banks
|
Until the
Senior Facility Discharge Date, (a) no Hedging Bank shall, except with the prior
consent of the Senior Agent under the Senior Facility Agreement, take any
Enforcement Action in relation to any Security Document and (b) following a
Senior Facility Declared Default, no Hedging Banks may take any Enforcement
Action without the prior written consent of the Facility Agent, provided that,
for the purpose of this paragraph 18.1, the perfection or preservation of any
Security, as opposed to the realisation of such Security, shall not be treated
as enforcement.
|
18.2
|
Restrictions on enforcement by
the Second Lien Finance
Parties
|
Until the
Senior Facility Discharge Date, the Interim Facility Finance Parties, the Second
Lien Notes Finance Parties and the Second Lien Noteholders shall not, except
with the prior consent of the Senior Agent under the Senior Facility Agreement,
direct the Security Agent to enforce or otherwise (to the extent applicable),
require the enforcement of, the High Yield Notes Security Documents, provided
that, for the purpose of this paragraph 18.2, the perfection or preservation of
any Security, as opposed to the realisation of such Security, shall not be
treated as enforcement.
-46-
|
18.3
|
Restrictions on enforcement by
the holder of the High Yield Notes On-Loan and/or the High Yield Notes
Security Documents
|
Until the
Senior Discharge Date, except with the prior consent of or as required by the
Instructing Group:
|
18.3.1
|
the
holder of the High Yield Notes On-Loan shall not take any Enforcement
Action in relation to any High Yield Notes On-Loan Debt or under the
relevant High Yield Notes Security
Documents;
|
|
18.3.2
|
the
High Yield Notes Finance Parties and High Yield Noteholders shall not
direct the Security Agent to enforce or otherwise (to the extent
applicable), require the enforcement of, the High Yield Notes Security
Documents; and
|
|
18.3.3
|
the
High Yield Notes Finance Parties and High Yield Noteholders shall not take
or require the taking of any Enforcement Action in relation to the High
Yield Notes Guarantees unless they have matured in accordance with
paragraph 1 of the High Yield Notes Guarantee Maturity
Provisions,
|
except as
permitted under Clause 19.2 (Permitted High Yield Notes On-Loan
and Permitted High Yield Notes Security Documents enforcement) provided,
however, that no such action required by the Instructing Group need be taken
except to the extent the Instructing Group otherwise is entitled under this
Agreement to direct such action.
|
18.4
|
Restrictions on enforcement by
the Investors
|
Until the
Final Discharge Date, no Investor shall, except with the prior consent of or as
required by an Instructing Group, take any Enforcement Action in relation to any
Investor Debt. If required by an Instructing Group to take
Enforcement Action, each Investor will apply any proceeds from that Enforcement
Action in accordance with Clause 13 (Turnover of Non-Permitted
Payments).
|
18.5
|
Restrictions on enforcement by
the Intercompany Lenders
|
Until the
Senior Discharge Date and for the benefit of the holders of Senior Debt only, no
Intercompany Lender shall, except with the prior consent of or as required by an
Instructing Group, take any Enforcement Action in relation to any Intercompany
Debt. If required by an Instructing Group to take Enforcement Action,
the Intercompany Lenders will apply any proceeds from that Enforcement Action in
accordance with Clause 13 (Turnover of Non-Permitted
Payments).
|
18.6
|
Marshalling of
Assets
|
Until the
Senior Facility Discharge Date, each Interim Facility Finance Party, Second Lien
Notes Finance Party and Second Lien Noteholder waives any and all rights to
require the Security Agent to marshal any property or assets of any Obligor or
resort to any of the property or assets of any Obligor in any particular order
or manner.
|
19.
|
PERMITTED
ENFORCEMENT
|
|
19.1
|
Permitted hedging
enforcement
|
|
19.1.1
|
A
Hedging Bank may designate an Early Termination Date in accordance with
the relevant Hedging Document or otherwise terminate the relevant Hedging
Document, provided that no other Enforcement Action is taken in respect of
any Security Document.
|
-47-
|
19.1.2
|
If
a Senior Declared Default has occurred, each Hedging Bank will, promptly
after a request by the Security Agent, designate an Early Termination Date
under or otherwise terminate each Hedging Document to which it is a party
and any derivative transaction entered into under that Hedging
Document.
|
|
19.1.3
|
On
or following:
|
|
|
(a)
|
the
designation of an Early Termination Date or other termination as provided
in paragraph 19.1.1 or 19.1.2 above;
or
|
|
|
(b)
|
the
occurrence of the Acceleration
Date,
|
any
amount which falls due from a Hedging Bank to any Obligor shall be paid by that
Hedging Bank to the Security Agent promptly for application in accordance with
Clause 20.1 (Order of
application).
|
19.2
|
Permitted High Yield Notes
On-Loan and Permitted High Yield Notes Security Documents
enforcement
|
|
19.2.1
|
The
restrictions in Clause 18.3 (Restrictions on enforcement by
the holder of the High Yield Notes On-Loan and/or the High Yield Notes
Security Documents) will not apply in respect of the High Yield
Notes Guarantee Debt and High Yield Notes On-Loan,
if:
|
|
|
(a)
|
a
High Yield Notes Default (the “Relevant High Yield Notes
Default”) is continuing;
|
|
|
(b)
|
each
Senior Representative has received a notice of the Relevant High Yield
Notes Default specifying the event or circumstance in relation to the
Relevant High Yield Notes Default from the High Yield Notes
Trustee;
|
|
|
(c)
|
a
High Yield Notes Standstill Period has elapsed;
and
|
|
|
(d)
|
the
Relevant High Yield Notes Default is continuing at the end of the relevant
High Yield Notes Standstill Period.
|
|
19.2.2
|
Promptly
upon becoming aware of a High Yield Notes Default, the High Yield Notes
Trustee may by notice (a “High Yield Notes Default
Notice”) in writing notify each Senior Representative of the
existence of such High Yield Notes
Default.
|
|
19.3
|
High Yield Notes Standstill
Period
|
In
relation to a Relevant High Yield Notes Default, a High Yield Notes Standstill
Period shall mean the period beginning on the date (the “High Yield Notes Standstill Start
Date”) the High Yield Notes Trustee serves a High Yield Notes Default
Notice on each Senior Representative in respect of such Relevant High Yield
Notes Default and ending on the earlier to occur of:
|
19.3.1
|
the
date falling 179 days after the High Yield Notes Standstill Start
Date;
|
|
19.3.2
|
the
date one or more of the Senior Parties take any Enforcement Action in
relation to a particular High Yield Notes Guarantor provided, however,
that:
|
|
|
(a)
|
if
a High Yield Notes Standstill Period ends pursuant to this paragraph (b),
the High Yield Notes Finance Parties and the High Yield Noteholders may
only take the same Enforcement Action in relation to the High Yield Notes
Guarantor as the Enforcement Action taken by the Senior Parties against
such High Yield Notes Guarantor;
and
|
-48-
|
|
(b)
|
Enforcement
Action for the purpose of this paragraph (b) shall not include action
taken to preserve or protect any Security as opposed to realise
it;
|
|
19.3.3
|
the
date of an event as described in Clause 14.1 (Subordination events)
in relation to a particular High Yield Notes Guarantor;
and
|
|
19.3.4
|
the
expiry of any other High Yield Notes Standstill Period outstanding at the
date such first mentioned High Yield Notes Standstill Period
commenced.
|
|
19.4
|
Subsequent High Yield Notes
defaults
|
The High
Yield Notes Finance Parties and High Yield Noteholders or the holder of the High
Yield Notes On-Loan, as applicable, may take Enforcement Action under Clause
19.2 (Permitted High Yield
Notes On-Loan and Permitted High Yield Notes Security Documents
enforcement) in relation to a Relevant High Yield Notes Default even if,
at the end of any relevant High Yield Notes Standstill Period or at any later
time, a further High Yield Notes Standstill Period has begun as a result of any
other High Yield Notes Default.
|
19.5
|
Permitted investor
enforcement
|
The
restrictions in Clause 18.4 (Restrictions on enforcement by the
Investors) will not apply if an Insolvency Event is continuing, except
that the Investors may only exercise the rights set out in paragraph (a)(i) and,
with the prior consent of an Instructing Group, paragraph (a)(ii) of the
definition of Enforcement Action in Clause 1.1 (Definitions) in relation to
the relevant Key Company.
|
19.6
|
Permitted intercompany
enforcement
|
The
restrictions in Clause 18.5 (Restrictions on enforcement by the
Intercompany Lenders) will not apply if an Insolvency Event is
continuing, except that the Intercompany Lenders may only exercise the rights
set out in paragraph (a)(i) and, with the prior consent of an Instructing Group,
paragraph (a)(ii) of the definition of Enforcement Action in Clause 1.1 (Definitions) in relation to
the relevant Key Company.
|
20.
|
APPLICATION
OF RECOVERIES
|
|
20.1
|
Order of application for High
Yield Collateral
|
Subject
to the rights of creditors mandatorily preferred by law applying to companies
generally, the proceeds of enforcement of the High Yield Collateral conferred by
the Security Documents shall be applied in the following order:
|
20.1.1
|
first, in or towards
payment pari
passu to:
|
|
|
(a)
|
the
Security Agent of any unpaid fees, costs, expenses and liabilities
(including any interest thereon as provided in the Security Documents)
incurred by or on behalf of the Security Agent (or any adviser, receiver,
delegate, attorney or agent thereof) and the remuneration of the Security
Agent (or any adviser, receiver, delegate, attorney or agent thereof) in
connection with carrying out its duties or exercising powers or
discretions under the Security Documents or this Agreement;
and
|
|
|
(b)
|
the
Trustees for application towards any unpaid fees, costs, expenses and
liabilities incurred by or on behalf of the Trustees (or any advisor,
receiver, delegate, attorney or agent thereof) in connection with any
enforcement, recovery or other payment and the remuneration of the
Trustees (or any adviser, receiver, delegate, attorney or agent thereof)
in connection with carrying out its duties or exercising powers or
discretions, in each case, under their applicable Note Finance Documents
or this Agreement (including any Trustee Amounts but excluding any payment
in relation to any unpaid fees, costs, expenses and liabilities incurred
in respect of any litigation by or on behalf of any Notes Finance Party or
Noteholder against any of the Senior Finance
Parties);
|
-49-
|
20.1.2
|
second, in or towards
payment pari
passu to the Senior Secured Representatives for application towards
any unpaid fees, costs, expenses and liabilities incurred by or on behalf
of any Senior Party in connection with such enforcement, recovery or other
payment pari
passu between themselves;
|
|
20.1.3
|
third, in or towards
payment pari
passu to the Senior Secured Representatives for application towards
the balance of the Senior Secured Debt (in accordance with the applicable
Senior Agreement); and
|
|
20.1.4
|
fourth, after the Senior
Discharge Date, in or towards payment to or to the order of the High Yield
Notes Trustee for application towards the balance of the High Yield Notes
Guarantee Debt (in accordance with the High Yield Notes Indenture) or,
prior to the Senior Discharge Date, to the Security Agent for distribution
in accordance with Clause 20.5 (General order of
application).
|
|
20.1.5
|
fifth, after the Final
Discharge Date, in payment of the surplus (if any) to the relevant Obligor
or other person entitled thereto.
|
|
20.2
|
Order of application for Arco
Notes Collateral
|
Subject
to the rights of creditors mandatorily preferred by law applying to companies
generally, the proceeds of enforcement of the Arco Notes Collateral conferred by
the Security Documents shall be applied in the following order:
|
20.2.1
|
first, in or towards
payment pari
passu to:
|
|
|
(a)
|
the
Security Agent of any unpaid fees, costs, expenses and liabilities
(including any interest thereon as provided in the Security Documents)
incurred by or on behalf of the Security Agent (or any adviser, receiver,
delegate, attorney or agent thereof) and the remuneration of the Security
Agent (or any adviser, receiver, delegate, attorney or agent thereof) in
connection with carrying out its duties or exercising powers or
discretions under the Security Documents or this Agreement;
and
|
|
|
(b)
|
the
Second Lien Notes Trustee for application towards any unpaid fees, costs,
expenses and liabilities incurred by or on behalf of the Second Lien Notes
Trustee (or any advisor, receiver, delegate, attorney or agent thereof) in
connection with any enforcement, recovery or other payment and the
remuneration of the Second Lien Notes Trustee (or any adviser, receiver,
delegate, attorney or agent thereof) in connection with carrying out its
duties or exercising powers or discretions, in each case, under the Second
Lien Notes Finance Documents or this Agreement (including any Second Lien
Notes Trustee Amounts but excluding any payment in relation to any unpaid
fees, costs, expenses and liabilities incurred in respect of any
litigation by or on behalf of any Second Lien Notes Finance Party or
Second Lien Noteholder against any of the Senior Finance
Parties);
|
|
20.2.2
|
second, in or towards
payment to the Senior Agent for application towards any unpaid fees,
costs, expenses and liabilities incurred by or on behalf of any Senior
Finance Party or Hedging Bank in connection with such enforcement,
recovery or other payment pari passu between
themselves;
|
|
20.2.3
|
third, in or towards
payment pari
passu to (a) the Arco Notes Trustee for application to the Arco
Notes Debt (in accordance with the Arco Notes Indenture) and (b) the
Senior Agent for application towards the balance of the Senior Facility
Debt (in accordance with the Senior Facility Agreement) and the Hedging
Debt pari passu
between themselves;
|
-50-
|
20.2.4
|
fourth, after the Senior
Facility Discharge Date and the Arco Notes Discharge Date, in or towards
payment to the Interim Facility Agent for application towards any unpaid
costs and expenses incurred by or on behalf of any Interim Facility
Finance Party in connection with such enforcement, recovery or other
payment;
|
|
20.2.5
|
fifth, after the Senior
Facility Discharge Date and the Arco Notes Discharge Date, in or towards
payment pari
passu to the Interim Facility Agent and the Second Lien Notes
Trustee for application towards the balance of the Interim Facility Debt
(in accordance with the Interim Facility Agreement) and the Second Lien
Notes Debt (in accordance with the Second Lien Notes
Indenture);
|
|
20.2.6
|
sixth, after the Second
Lien Discharge Date, to the Security Agent for distribution in accordance
with Clause 20.5 (General order of
application).
|
|
20.3
|
Order of application for
Equistar Notes Collateral
|
Subject
to the rights of creditors mandatorily preferred by law applying to companies
generally, the proceeds of enforcement of the Equistar Notes Collateral
conferred by the Security Documents shall be applied in the following
order:
|
20.3.1
|
first, in or towards
payment pari
passu to:
|
|
|
(a)
|
the
Security Agent of any unpaid fees, costs, expenses and liabilities
(including any interest thereon as provided in the Security Documents)
incurred by or on behalf of the Security Agent (or any adviser, receiver,
delegate, attorney or agent thereof) and the remuneration of the Security
Agent (or any adviser, receiver, delegate, attorney or agent thereof) in
connection with carrying out its duties or exercising powers or
discretions under the Security Documents or this Agreement;
and
|
|
|
(b)
|
the
Second Lien Notes Trustee for application towards any unpaid fees, costs,
expenses and liabilities incurred by or on behalf of the Second Lien Notes
Trustee (or any advisor, receiver, delegate, attorney or agent thereof) in
connection with any enforcement, recovery or other payment and the
remuneration of the Second Lien Notes Trustee (or any adviser, receiver,
delegate, attorney or agent thereof) in connection with carrying out its
duties or exercising powers or discretions, in each case, under the Second
Lien Notes Finance Documents or this Agreement (including any Second Lien
Notes Trustee Amounts but excluding any payment in relation to any unpaid
fees, costs, expenses and liabilities incurred in respect of any
litigation by or on behalf of any Second Lien Notes Finance Party or
Second Lien Noteholder against any of the Senior Finance
Parties);
|
|
20.3.2
|
second, in or towards
payment to the Senior Agent for application towards any unpaid fees,
costs, expenses and liabilities incurred by or on behalf of any Senior
Finance Party or Hedging Bank in connection with such enforcement,
recovery or other payment pari passu between
themselves;
|
|
20.3.3
|
third, in or towards
payment pari
passu to (a) the Equistar Notes Trustee for application to the
Equistar Notes Debt (in accordance with the Equistar Notes Indenture) and
(b) the Senior Agent for application towards the balance of the Senior
Facility Debt (in accordance with the Senior Facility Agreement) and the
Hedging Debt pari
passu between themselves;
|
|
20.3.4
|
fourth, after the Senior
Facility Discharge Date and the Equistar Notes Discharge Date, in or
towards payment to the Interim Facility Agent for application towards any
unpaid costs and expenses incurred by or on behalf of any Interim Facility
Finance Party in connection with such enforcement, recovery or other
payment;
|
-51-
|
20.3.5
|
fifth, after the Senior
Facility Discharge Date and the Equistar Notes Discharge Date, in or
towards payment pari
passu to the Interim Facility Agent and the Second Lien Notes
Trustee for application towards the balance of the Interim Facility Debt
(in accordance with the Interim Facility Agreement) and the Second Lien
Notes Debt (in accordance with the Second Lien Notes
Indenture);
|
|
20.3.6
|
sixth, after the Second
Lien Discharge Date, to the Security Agent for distribution in accordance
with Clause 20.5 (General order of
application).
|
|
20.4
|
Order of application for other
Security
|
Subject
to the rights of creditors mandatorily preferred by law applying to companies
generally, the proceeds of enforcement of the General Collateral conferred by
the Security Documents shall be applied in the following order:
|
20.4.1
|
first, in or towards
payment pari
passu to:
|
|
|
(a)
|
the
Security Agent of any unpaid fees, costs, expenses and liabilities
(including any interest thereon as provided in the Security Documents)
incurred by or on behalf of the Security Agent (or any adviser, receiver,
delegate, attorney or agent thereof) and the remuneration of the Security
Agent (or any adviser, receiver, delegate, attorney or agent thereof) in
connection with carrying out its duties or exercising powers or
discretions under the Security Documents or this Agreement;
and
|
|
|
(b)
|
the
Second Lien Notes Trustee for application towards any unpaid fees, costs,
expenses and liabilities incurred by or on behalf of the Second Lien Notes
Trustee (or any advisor, receiver, delegate, attorney or agent thereof) in
connection with any enforcement, recovery or other payment and the
remuneration of the Second Lien Notes Trustee (or any adviser, receiver,
delegate, attorney or agent thereof) in connection with carrying out its
duties or exercising powers or discretions, in each case, under the Second
Lien Notes Finance Documents or this Agreement (including any Second Lien
Notes Trustee Amounts but excluding any payment in relation to any unpaid
fees, costs, expenses and liabilities incurred in respect of any
litigation by or on behalf of any Second Lien Notes Finance Party or
Second Lien Noteholder against any of the Senior Finance
Parties);
|
|
20.4.2
|
second, in or towards
payment to the Senior Agent for application towards any unpaid fees,
costs, expenses and liabilities incurred by or on behalf of any Senior
Finance Party or Hedging Bank in connection with such enforcement,
recovery or other payment pari passu between
themselves;
|
|
20.4.3
|
third, in or towards
payment to the Senior Agent for application towards the balance of the
Senior Facility Debt (in accordance with the Senior Facility Agreement)
and the Hedging Debt pari passu between
themselves;
|
|
20.4.4
|
fourth, after the Senior
Facility Discharge Date, in or towards payment to the Interim Facility
Agent for application towards any unpaid costs and expenses incurred by or
on behalf of any Interim Facility Finance Party in connection with such
enforcement, recovery or other
payment;
|
|
20.4.5
|
fifth, after the Senior
Facility Discharge Date, in or towards payment pari passu to the
Interim Facility Agent and the Second Lien Notes Trustee for application
towards the balance of the Interim Facility Debt (in accordance with the
Interim Facility Agreement) and the Second Lien Notes Debt (in accordance
with the Second Lien Notes
Indenture);
|
|
20.4.6
|
sixth, after the Senior
Discharge Date and the Second Lien Discharge Date, to the Security Agent
for distribution in accordance with Clause 20.5 (General order of
application).
|
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|
20.5
|
General order of
application
|
Subject
to the rights of creditors mandatorily preferred by law applying to companies
generally, all recoveries by the Security Agent under guarantees of the Debt and
all other amounts paid to the Security Agent pursuant to this Agreement to the
extent not included in Clauses 20.1 (Order of application for High Yield
Collateral), 2.02 (Order of application for Arco Notes Collateral),
20.3 (Order of application for
Equistar Notes Collateral) and 20.4 (Order of application for other
Security) shall be applied in the following order:
|
20.5.1
|
first, in or towards
payment pari
passu to:
|
|
|
(a)
|
the
Security Agent of any unpaid fees, costs, expenses and liabilities
(including any interest thereon as provided in the Security Documents)
incurred by or on behalf of the Security Agent (or any adviser, receiver,
delegate, attorney or agent thereof) and the remuneration of the Security
Agent (or any adviser, receiver, delegate, attorney or agent thereof) in
connection with carrying out its duties or exercising powers or
discretions under the Security Documents or this Agreement;
and
|
|
|
(b)
|
the
Trustees for application towards any unpaid fees, costs, expenses and
liabilities incurred by or on behalf of the Trustees (or any advisor,
receiver, delegate, attorney or agent thereof) in connection with any
enforcement, recovery or other payment and the remuneration of the
Trustees (or any adviser, receiver, delegate, attorney or agent thereof)
in connection with carrying out its duties or exercising powers or
discretions, in each case, under their applicable Note Finance Documents
or this Agreement (including any Trustee Amounts but excluding any payment
in relation to any unpaid fees, costs, expenses and liabilities incurred
in respect of any litigation by or on behalf of any Notes Finance Party or
Noteholder against any of the Senior Finance
Parties);
|
|
20.5.2
|
second, in or towards
payment pari
passu to each of the Senior Representatives and the ABL Agent for
application towards any unpaid fees, costs, expenses and liabilities
incurred by or on behalf of any Senior Party or Hedge Bank in connection
with such enforcement, recovery or other payment pari passu between
themselves;
|
|
20.5.3
|
third, in or towards
payment pari
passu to each of the Senior Representatives and the ABL Agent for
application towards the balance of the Senior Debt (in accordance with the
applicable Senior Agreement), the Hedge Debt and the ABL
Debt;
|
|
20.5.4
|
fourth, after the Senior
Discharge Date, in or towards payment to or to the order of the High Yield
Notes Trustee for application towards the balance of the High Yield Notes
Guarantee Debt (in accordance with the High Yield Notes Indenture);
and
|
|
20.5.5
|
fifth, after the Final
Discharge Date, in payment of the surplus (if any) to the relevant Obligor
or other person entitled thereto.
|
|
20.6
|
Good
discharge
|
An
acknowledgement of receipt signed by the relevant person to whom payments are to
be made under this Clause 20 shall be a good discharge of the Security
Agent.
|
20.7
|
Pledge of Basell Poliolefine
Italia S.r.l.
|
Notwithstanding
clause 20.4, for so long as the pledge of Basell Poliolefine Italia S.r.l. by
its terms secures only the direct obligations of Basell Holdings B.V. any
proceeds from enforcement of the pledge by Basell Holdings B.V. of its interest
in Basell Poliolefine Italia S.r.l. shall only be applied to that portion of the
Senior Debt borrowed directly by Basell Holdings B.V.
-53-
|
21.
|
ENFORCEMENT
OF SECURITY
|
|
21.1
|
Enforcement
instructions
|
|
21.1.1
|
Subject
to paragraph 21.1.2 below, until the Senior Facility Discharge Date, the
Security Agent shall:
|
|
|
(a)
|
exercise
any right, power, authority or discretion vested in it as Security Agent
in accordance with any instructions given to it by the Senior Agent under
the Senior Facility Agreement (or, if so instructed by the Senior Agent
under the Senior Facility Agreement, refrain from exercising any right,
power, authority or discretion vested in it as Security Agent);
and
|
|
|
(b)
|
not
be liable for any act (or omission) if it acts (or refrains from taking
any action) in accordance with an instruction of the Senior Agent under
the Senior Facility Agreement.
|
|
21.1.2
|
Where:
|
|
|
(a)
|
the
High Yield Finance Parties are permitted to take Enforcement Action in
relation to the High Yield Notes Security Documents under Clause 19.2
(Permitted High Yield
Notes On-Loan and Permitted High Yield Notes Security Documents
enforcement); and
|
|
|
(b)
|
the
Senior Finance Parties have taken no Enforcement Action in relation to the
Senior Security Documents related to the shares of Basell
Funding,
|
the
Security Agent shall (but only as long as the Senior Secured Parties are not
taking Enforcement Action) (i) exercise any right, power, authority or
discretion vested in it as Security Agent in accordance with any instructions
given to it by the High Yield Notes Trustee (or, if so instructed by the High
Yield Notes Trustee, refrain from exercising any right, power, authority or
discretion vested in it as Security Agent) and (ii) not be liable for any act
(or omission) if it acts (or refrains from taking any action) in accordance with
an instruction of the High Yield Notes Trustee subject to liability on the part
of the Security Agent for gross negligence, willful misconduct or
fraud.
|
21.1.3
|
After
the Senior Facility Discharge Date and until the Second Lien Discharge
Date, the Security Agent shall:
|
|
|
(a)
|
exercise
any right, power, authority or discretion vested in it as Security Agent
in accordance with any instructions given to it by the Instructing Second
Lien Agent (or, if so instructed by the Instructing Second Lien Agent
refrain from exercising any right, power, authority or discretion vested
in it as Security Agent); and
|
|
|
(b)
|
not
be liable for any act (or omission) if it acts (or refrains from taking
any action) in accordance with an instruction of the Instructing Second
Lien Agent under the Interim Facility
Agreement.
|
|
21.1.4
|
After
the Senior Facility Discharge Date and the Second Lien Discharge Date and
until the High Yield Notes Discharge Date, the Security Agent
shall:
|
|
|
(a)
|
exercise
any right, power, authority or discretion vested in it as Security Agent
in accordance with any instructions given to it by the High Yield Notes
Trustee (or, if so instructed by the High Yield Notes Trustee, refrain
from exercising any right, power, authority or discretion vested in it as
Security Agent); and
|
-54-
|
|
(b)
|
not
be liable for any act (or omission) if it acts (or refrains from taking
any action) in accordance with an instruction of the High Yield Notes
Trustee subject to liability on the part of the Security Agent for gross
negligence, willful misconduct or
fraud.
|
|
21.1.5
|
Any
instructions given in accordance with paragraph 21.1.1, 21.1.2, 21.1.3 or
21.1.4 above will be binding on all the Senior Secured Parties and the
High Yield Noteholders.
|
|
21.1.6
|
The
Security Agent may refrain from acting in accordance with any instructions
given in accordance with paragraph 21.1.1, 21.1.2, 21.1.3 or 21.1.4 above
until it has received such security as it may require for any cost, loss
or liability (together with any associated VAT) which it may incur in
complying with the instructions.
|
|
21.1.7
|
In
the absence of instructions given in accordance with paragraph 21.1.1,
21.1.2, 21.1.3 or 21.1.4 above, the Security Agent may act (or refrain
from taking action) as it considers to be in the best interest of the
Senior Finance Parties or, after the Senior Facility Discharge Date, the
Interim Facility Finance Parties and the Second Lien Noteholders or, after
the Second Lien Discharge Date, the High Yield
Noteholders.
|
|
21.1.8
|
The
Security Agent is not authorised to act on behalf of a Senior Secured
Party, High Yield Notes Finance Party or a High Yield Noteholder (without
first obtaining that party’s consent) in any legal or arbitration
proceedings relating to any Senior Finance Document, any Hedging Document,
any Interim Facility Finance Document, any Second Lien Notes Finance
Document, any High Yield Notes Finance Document or this
Agreement.
|
|
21.2
|
Exemption
|
No Senior
Finance Party shall be responsible to any other Party, and no Interim Facility
Finance Party shall be responsible to any other Party, and no Second Lien Notes
Finance Party shall be responsible to any other Party and no High Yield Notes
Finance Party shall be responsible to any other Party, under this Agreement for
any instructions given or not given to the Security Agent in relation to the
Security Documents provided, however, that with respect to any responsibility of
the Second Lien Notes Trustee and the High Yield Notes Trustee only, this Clause
21.2 is subject to Clause 28.11 (Instructions).
|
21.3
|
Release of Security on
enforcement
|
If,
pursuant to or for the purpose of any Enforcement Action taken or to be taken by
the Security Agent in accordance with this Agreement, the Security Agent
requires any release of any Security for the Senior Secured Debt granted by any
member of the Group or (subject to the conditions set out in Clause 21.4 (Authority of Security Agent))
the release of any High Yield Notes Guarantee or the High Yield Notes Security
Documents, each Party shall promptly enter into any release and/or other
document and take any action which the Security Agent may reasonably
require.
|
21.4
|
Authority of Security
Agent
|
|
21.4.1
|
If
in connection with any Enforcement
Action:
|
|
|
(a)
|
the
Security Agent (or any receiver) sells or otherwise disposes of (or
proposes to sell or otherwise dispose of) any asset under any Security
Document; or
|
|
|
(b)
|
a
member of the Group sells or otherwise disposes of (or proposes to sell or
otherwise dispose of) any asset at the request of the Security Agent or an
Instructing Group,
|
the
Security Agent may, and is hereby irrevocably authorised (and released from the
restrictions set forth in Section 181 of the German Civil Code (Bürgerliches Gesetzbuch)) on
behalf of each Party to:
-55-
|
(i)
|
release
the Security created pursuant to the Security Documents over the relevant
asset; and
|
|
(ii)
|
if
the relevant asset comprises all of the shares in the capital of a member
of the Group pledged in favour of the Senior Finance Parties, (x) release
that member of the Group and any Subsidiary of it from all its past,
present and future liabilities and/or obligations (both actual and
contingent) as a guarantor of the whole or any part of the High Yield
Notes Debt (including any liability to any other member of the Group by
way of guarantee or contribution) and (y) release any Security granted by
that member of the Group or any Subsidiary of it over any asset under any
Security Document,
|
provided
that, in each case, the conditions of paragraphs 21.4.2 and 21.4.3 below are
satisfied.
|
21.4.2
|
It
is a further condition to the release of the High Yield Notes Guarantees,
High Yield Notes Security Documents and the whole or any part of the High
Yield Notes On-Loan Debt described in paragraph 21.4.1 above,
that:
|
|
|
(a)
|
the
proceeds of such sale or disposal are in cash (or substantially in
cash);
|
|
|
(b)
|
all
claims of the Senior Parties, Second Lien Noteholders and Unsecured Senior
Noteholders under the Senior Agreements against a member of the Group (if
any) all of whose shares pledged in favour of the Senior Finance Parties,
Interim Facility Finance Parties and Second Lien Notes Finance Parties are
sold or disposed of pursuant to such Enforcement Action, are
unconditionally released and discharged or sold or disposed of
concurrently with such sale, and all Security under the Senior Security
Documents, Interim Facility Security Documents and Second Lien Notes
Security Documents in respect of the assets that are sold or disposed of
is simultaneously and unconditionally released and discharged concurrently
with such sale, provided that in the event of a sale or disposal of any
such claim (instead of a release or
discharge):
|
|
(i)
|
the
Senior Agent determines acting reasonably and in good faith that the
Senior Finance Parties will recover more than if such claim was released
or discharged; and
|
|
(ii)
|
the
Senior Agent serves a notice on the Security Agent notifying the Security
Agent of the same, in which case the Security Agent shall be entitled
immediately to sell and transfer such claim to such purchaser (or an
affiliate of such purchaser);
|
|
|
(c)
|
such
sale or disposal (including any sale or disposal of any claim) is made (a)
pursuant to a public auction (b) pursuant to any process or proceedings
approved or supervised by or on behalf of any court of law or (c) for fair
market value (taking into account the circumstances giving rise to such
sale or disposal) as certified by an internationally recognised investment
bank selected by the Security
Agent.
|
|
21.4.3
|
The
net cash proceeds of sale or disposal shall be applied in or towards
payment of Debt in accordance with the applicable provisions of Clause 20
(Application or
Recoveries) and all proceeds (if any) for the benefit of the High
Yield Notes Debt shall have been, or contemporaneously with any such
release shall be:
|
|
|
(a)
|
paid
to High Yield Noteholders in repayment or redemption of their High Yield
Notes;
|
|
|
(b)
|
deposited
with the Security Agent or the High Yield Notes Trustee for the benefit of
the High Yield Noteholders; or
|
-56-
|
|
(c)
|
deposited
in an account in which a security interest has been perfected for the
benefit of the High Yield
Noteholders.
|
|
21.4.4
|
Each
Party shall promptly enter into any release and/or other document and take
any action which the Security Agent may reasonably require to give effect
to paragraphs 21.4.1 and 21.4.2 above and in accordance with this
Agreement.
|
|
21.4.5
|
No
such release under paragraph 21.4.1 above will affect the obligations
and/or liabilities of:
|
|
|
(a)
|
any
other member of the Group to the Senior Secured Parties, High Yield
Noteholders and/or Subordinated Parties;
or
|
|
|
(b)
|
any
Subordinated Party to the Secured Parties and/or the High Yield
Noteholders.
|
|
21.5
|
High Yield Notes
Trustee
|
Where the
Security Agent is entitled or required to act in accordance with the
instructions of the Second Lien Notes Trustee or the High Yield Notes Trustee it
will be entitled to act (without further investigation) upon any instructions or
communication received by it from the Second Lien Notes Trustee or the High
Yield Notes Trustee (or any other representative appointed on behalf of the
Second Lien Notes Finance Party or Second Lien Notes, or (as applicable) the
High Yield Notes Finance Parties or High Yield Noteholders) and will not be
bound to enquire whether the requisite Second Lien Noteholder or High Yield
Noteholder approval has been obtained provided this has been confirmed by or on
behalf of the Second Lien Notes Trustee or the High Yield Notes
Trustee.
|
22.
|
OPTION
TO PURCHASE
|
|
22.1
|
Option to
purchase
|
If after
the Second Lien Discharge Date and a High Yield Notes Stop Notice has been
issued and is current and the Senior Finance Parties have taken Enforcement
Action, provided the High Yield Notes Trustee has received instructions and
confirmation that all conditions in Clause 22.2 (Terms of purchase) will be
satisfied at the relevant time from the High Yield Noteholders, then the High
Yield Notes Trustee or holders of at least 50 per cent. of the High Yield Notes
may at the expense of the High Yield Noteholders within 60 days of the Senior
Finance Parties taking Enforcement Action give not less than 10 Business Days’
notice to the Senior Agent to acquire or procure the acquisition by a person
nominated by the High Yield Notes Trustee or the High Yield Noteholders (as the
case may be) of all (but not part only) of the rights and obligations
of:
|
|
(a)
|
the
Senior Finance Parties in connection with the Senior Facility Debt under
the Senior Finance Documents by way of transfer under Section 10.07 (Successors and Assigns)
of the Senior Facility Agreement;
and
|
|
|
(b)
|
the
Hedging Banks in connection with the Hedging Debt under the Hedging
Documents,
|
but
without prejudice to the Senior Finance Parties’ ability to take Enforcement
Action in accordance with this Agreement prior to any such acquisition and
subject to Clause 22.2 (Terms
of purchase).
|
22.2
|
Terms of
purchase
|
Any
purchase under Clause 22.1 (Option to purchase) shall be
on the following terms:
|
22.2.1
|
payment
in full in cash of an amount equal to the Senior Facility Debt outstanding
as at the date that amount is to be paid, as determined by the Senior
Agent (acting reasonably);
|
-57-
|
22.2.2
|
payment
in full in cash of the amount which each Senior Finance Party certifies to
be necessary to compensate it for any loss on account of funds borrowed,
contracted for or utilised to fund any amount included in the Senior
Facility Debt resulting from the receipt of that payment otherwise than on
the last day of an Interest Period;
|
|
22.2.3
|
after
the transfer, no Senior Finance Party will be under any actual or
contingent liability to any Obligor or any other person under this
Agreement or any Senior Finance Document for which it is not holding cash
collateral in an amount and on terms reasonably satisfactory to
it;
|
|
22.2.4
|
each
High Yield Noteholder (or a third party acceptable to all the Senior
Finance Parties and High Yield Notes Finance Parties), as the case may be,
indemnifies each Senior Finance Party on the date of the relevant transfer
in respect of all losses which may be sustained or incurred by any Senior
Finance Party as a result of any sum received or recovered by any Senior
Finance Party from any Obligor, any High Yield Notes Finance Party or any
other person being required (or it being alleged that it is required) to
be paid back by or clawed back from any Senior Finance Party for any
reason; and
|
|
22.2.5
|
the
relevant transfer shall be without recourse to, or warranty from, any
Senior Finance Party, except that each Senior Finance Party shall be
deemed to have represented and warranted on the date of that transfer
that:
|
|
|
(a)
|
it
is the sole owner, free from all Security and third party interests (other
than any arising under the Senior Finance Documents or by operation of
law), of all rights and interests under the Senior Finance Documents
purporting to be transferred by it by that transfer;
and
|
|
|
(b)
|
it
has the power to enter into and make, and has taken all necessary action
to authorise its entry into and making, that
transfer.
|
|
23.
|
PRESERVATION
OF DEBT
|
|
23.1
|
Preservation of Junior
Debt
|
|
23.1.1
|
Notwithstanding
any term of this Agreement postponing, subordinating or preventing the
payment of all or any part of the Junior Debt, the relevant Junior Debt
shall, as between the Obligors, the Intercompany Borrowers and the Junior
Creditors, be deemed to remain owing or due and payable (and interest,
default interest or indemnity payments shall continue to accrue) in
accordance with the High Yield Notes Finance Documents, the High Yield
Notes On-Loan Documents, the Investor Documents or the Intercompany
Documents (as the case may be).
|
|
23.1.2
|
No
failure to exercise, nor any delay in exercising, on the part of any
Junior Creditor any right or remedy under any High Yield Notes Finance
Document, High Yield Notes On-Loan Document, Investor Document or
Intercompany Document (as the case may be) by reason of any term of this
Agreement postponing, restricting or preventing such exercise shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the exercise of any
other right or remedy by any Junior
Creditor.
|
|
23.2
|
No
liability
|
|
23.2.1
|
No
Senior Party or Hedging Bank will be liable to any Junior Creditor
for:
|
|
|
(a)
|
the
manner of exercise or any non-exercise of its rights, remedies, powers,
authorities or discretions under this Agreement;
or
|
|
|
(b)
|
any
failure to collect or preserve any Debt or delay in doing
so.
|
-58-
|
23.2.2
|
No
High Yield Notes Finance Party will be liable to any Junior Creditor
for:
|
|
|
(a)
|
the
manner of exercise or any non-exercise of its rights, remedies, powers,
authorities or discretions under this Agreement;
or
|
|
|
(b)
|
any
failure to collect or preserve any Debt or delay in doing
so.
|
|
24.
|
SHARING
AMONG CERTAIN PARTIES
|
|
24.1
|
Payments to Senior Secured
Parties, Unsecured Senior Notes Finance Parties, Unsecured Senior
Noteholders High Yield Notes Finance Parties and High Yield
Noteholders
|
Subject,
in the case of the Second Lien Notes Trustee, Unsecured Notes Trustee and the
High Yield Notes Trustee, to Clause 28 (Trustees), on or after the
Acceleration Date if a Senior Secured Party, Unsecured Senior Notes Finance
Parties, Unsecured Senior Noteholders, High Yield Notes Finance Party or High
Yield Noteholder, (a “Recovering Creditor”) makes a
Senior Recovery, Hedging Recovery, Interim Facility Recovery, Second Lien Notes
Recovery, Unsecured Senior Notes Recovery or High Yield Notes Guarantee
Recovery, as relevant (the “Recovery”) in respect of any
amounts owed by any Obligor other than in accordance with the applicable
provisions of Clause 20 (Application of Recoveries)
and applies that amount to a payment due under the Finance Documents to which it
is a party then:
|
24.1.1
|
the
Recovering Creditor shall, within three Business Days, notify details of
the Recovery to the Security Agent and, as relevant, the Senior Agent, the
Interim Facility Agent, the Second Lien Notes Trustee, Unsecured Senior
Notes Trustee or the High Yield Notes
Trustee;
|
|
24.1.2
|
the
Security Agent shall determine whether the Recovery is in excess of the
amount the Recovering Creditor would have been paid had the Recovery been
made by the Security Agent and distributed in accordance with the
applicable provisions of Clause 20.1 (Application of
Recoveries), without taking account of any Tax which would be
imposed on the Security Agent, the Senior Agent, the Interim Facility
Agent, the Second Lien Notes Trustee, Unsecured Senior Notes Trustee or
the High Yield Notes Trustee, as relevant, in relation to the Recovery;
and
|
|
24.1.3
|
the
Recovering Creditor shall, within three Business Days of demand by the
Security Agent, pay to the Security Agent an amount (the “Sharing Payment”) equal
to such Recovery less any amount which the Security Agent determines may
be retained by the Recovering Creditor as its share of any payment to be
made in accordance with the applicable provisions of Clause 20 (Application of
Recoveries).
|
|
24.2
|
Redistribution of
payments
|
The
Security Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Senior Secured Parties, Unsecured
Senior Notes Finance Parties, Unsecured Senior Noteholders, the High Yield Notes
Finance Parties and High Yield Noteholders (other than the Recovering Creditor)
in accordance with the applicable provisions of Clause 20 (Application of
Recoveries).
|
24.3
|
Recovering Creditor’s
rights
|
|
24.3.1
|
On
a distribution by the Security Agent under Clause 24.2 (Redistribution of
payments), the Recovering Creditor will be subrogated to the rights
of the Senior Secured Parties, Unsecured Senior Notes Finance Parties,
Unsecured Senior Noteholders, the High Yield Notes Finance Parties and
High Yield Noteholders which have shared in the
redistribution.
|
|
24.3.2
|
If
and to the extent that the Recovering Creditor is not able to rely on its
rights under paragraph 24.3.1 above, the relevant Obligor shall be liable
to the Recovering Creditor for a debt equal to the Sharing Payment which
is immediately due and payable.
|
-59-
|
24.4
|
Reversal of
redistribution
|
If any
part of the Sharing Payment received or recovered by a Recovering Creditor
becomes repayable and is repaid by that Recovering Creditor, then:
|
24.4.1
|
each
Senior Secured Party, Unsecured Senior Notes Finance Party and High Yield
Notes Finance Party which has received a share of the relevant Sharing
Payment pursuant to Clause 24.2 (Redistribution of
payments) shall, upon request of the Security Agent, pay to the
Security Agent for account of that Recovering Creditor an amount equal to
the appropriate part of its share of the Sharing Payment (together with an
amount as is necessary to reimburse that Recovering Creditor for its
proportion of any interest on the Sharing Payment which that Recovering
Creditor is required to pay); and
|
|
24.4.2
|
that
Recovering Creditor’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable
to the reimbursing Senior Secured Party and/or Unsecured Senior Notes
Finance Party and/or High Yield Notes Finance Party (as relevant) for the
amount so reimbursed.
|
|
24.5
|
Exceptions
|
|
24.5.1
|
This
Clause 24 shall not apply to the extent that the Recovering Creditor would
not, after making any payment pursuant to this Clause, have a valid and
enforceable claim against the relevant
Obligor.
|
|
24.5.2
|
A
Recovering Creditor is not obliged to share with any Senior Secured Party,
Unsecured Senior Notes Finance Party or High Yield Notes Finance Party (as
relevant) any amount which the Recovering Creditor has received or
recovered as a result of taking legal or arbitration proceedings,
if:
|
|
|
(a)
|
it
notified that Senior Secured Party and/or Unsecured Senior Notes Finance
Party and/or High Yield Notes Finance Party of the legal or arbitration
proceedings; and
|
|
|
(b)
|
that
Senior Secured Party and/or Unsecured Senior Notes Finance Party and/or
High Yield Notes Finance Party had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or
arbitration proceedings.
|
|
24.5.3
|
Neither
the Second Lien Notes Trustee, Unsecured Senior Notes Trustee or the High
Yield Notes Trustee shall have to make a Sharing Payment to the Security
Agent under Clause 24.1.3 (Payments to Senior Secured
Parties, High Yield Notes Finance Parties and High Yield
Noteholders) in respect of a Recovery received by it as a
Recovering Creditor to the extent that at the time of such Recovery and
its transfer to the Second Lien Noteholders, Unsecured Senior Notes
Trustee or the High Yield Noteholders (as applicable), the Second Lien
Notes Trustee, Unsecured Senior Notes Trustee or the High Yield Notes
Trustee (as applicable) has no actual knowledge that such a Recovery was
not made in accordance with Clause 20 (Application of
Recoveries).
|
|
24.5.4
|
Nothing
in this Clause 24 shall prevent a Trustee receiving and retaining any
Trustee Amounts.
|
|
24.6
|
Parallel
Debt
|
|
24.6.1
|
Security Agent Claim
means any amount which an Obligor owes to the Security Agent under this
Clause 24.6 (Parallel
Debt).;
|
|
|
Secured Party Claim
means any amount which an Obligor owes to a Senior Secured Party, a High
Yield Notes Finance Party or a High Yield
Noteholder.
|
-60-
|
24.6.2
|
Unless
expressly provided to the contrary in an Finance Document, the Security
Agent holds:
|
|
|
(a)
|
any
security created by a Security Document governed by Luxembourg
law;
|
|
|
(b)
|
the
benefit of any Security Agent Claims:
and
|
|
|
(c)
|
any
proceeds of security,
|
for the
benefit, and as the property, of the Senior Secured Parties and so that they are
not available to the personal creditors of the Security Agent.
|
24.6.3
|
The
Security Agent will separately identify in its records the property rights
referred to in Clause 24.6.2 above.
|
|
24.6.4
|
Clauses
24.6.2 and 24.6.3 above do not apply to any security created by a Finance
Document governed by Dutch law.
|
|
24.6.5
|
Each
Obligor must pay the Security Agent, as an independent and separate
creditor, an amount equal to each Secured Party Claim on its due
date.
|
|
24.6.6
|
The
Security Agent may enforce performance of any Security Agent Claim in its
own name as an independent and separate right. This includes
any suit, execution, enforcement of security, recovery of guarantees and
applications for and voting in respect of any kind of insolvency
proceeding.
|
|
24.6.7
|
Each
Senior Secured Party, High Yield Notes Finance Party and High Yield Note
Holders must, at the request of the Security Agent, perform any act
required in connection with the enforcement of any Security Agent
Claim. This includes joining in any proceedings as co-claimant
with the Security Agent.
|
|
24.6.8
|
Each
Senior Secured Party, High Yield Notes Finance and High Yield Noteholder,
irrevocably and unconditionally waives any right it may have to require a
Senior Secured Party, High Yield Notes Finance Party or High Yield
Noteholder to join in any proceedings as co-claimant with the Security
Agent in respect of any Security Agent
Claim.
|
|
24.6.9
|
Discharge
by an Obligor of a Secured Party Claim will discharge the corresponding
Security Agent Claim in the same amount. Discharge by an
Obligor of a Security Agent Claim will discharge the corresponding Secured
Party Claim in the same amount.
|
|
24.6.10
|
The
aggregate amount of the Security Agent Claims will never exceed the
aggregate amount of Secured Party
Claims.
|
|
24.6.11
|
A
defect affecting a Security Agent Claim against an Obligor will not affect
any Secured Party Claim. A defect affecting a Secured Party
Claim against an Obligor will not affect any Security Agent
Claim.
|
|
24.6.12
|
Each
Security Agent Claim is created on the understanding that and provided
that the Security Agent will:
|
|
|
(a)
|
share
the benefit, including in particular the proceeds of the Security Agent
Claim, with the other Senior Secured Parties and High Yield Notes Finance
Parties; and
|
|
|
(b)
|
pay
those proceeds to the Senior Secured Parties and High Yield Notes Finance
Parties,
|
in
accordance with this Agreement.
-61-
|
24.6.13
|
Each
Party agrees that the Security
Agent:
|
|
(i)
|
will
be the joint and several creditor (together with the relevant Senior
Secured Party) of each and every obligation of each Obligor towards each
Senior Secured Party under this Agreement;
and
|
|
(ii)
|
will
have its own independent right to demand performance by each Obligor of
those obligations.
|
|
24.6.14
|
Discharge
by an Obligor of any obligation owed to the Security Agent or another
Senior Secured Party shall, to the same extent, discharge the
corresponding obligation owing to the
other.
|
|
24.6.15
|
Without
limiting or affecting the Security Agent’s rights against each Obligor
(whether under this clause 24.6 or under any other provision of the
Finance Documents), the Security Agent agrees with each other Senior
Secured Party (on a several and divided basis) that, subject to clause
24.6.16 below, it will not exercise its rights as a joint and several
creditor with a Senior Secured Party except with the consent of the
relevant Senior Secured Parties (as required under the Finance
Documents).
|
|
24.6.16
|
Nothing
in clause 24.6.15 shall in any way limit the Security Agent’s right to act
in the protection or preservation of rights under or to enforce any
Finance Document as contemplated by this Agreement and/or the relevant
Finance Document (or to do any act reasonably incidental to any of the
above).
|
|
25.
|
SUBROGATION
|
|
25.1
|
Subrogation of High Yield Notes
Finance Parties and High Yield
Noteholders
|
If any
Senior Debt, ABL Debt or Hedging Debt is paid out of any proceeds received in
respect of or on account of the High Yield Notes Guarantee Debt owing to one or
more High Yield Notes Finance Parties and High Yield Noteholders:
|
|
(a)
|
those
High Yield Notes Finance Parties and High Yield Noteholders (pro rata to
their respective interests in such High Yield Notes Guarantee Debt) will
to that extent be subrogated to the Senior Debt, ABL Debt and Hedging Debt
so paid (and all Security and guarantees for that Senior Debt, Hedging
Debt); but
|
|
|
(b)
|
except
with the prior consent of each Senior Representative under its respective
Senior Agreement and the ABL Agent under the ABL Agreement (as the case
may be), the High Yield Notes Finance Parties (with the exception of the
High Yield Notes Trustee in respect of any High Yield Notes Trustee
Amounts owing to it) and High Yield Noteholders may not exercise those
subrogation rights until after the Senior Discharge Date. After the Senior
Discharge Date, to the extent that the High Yield Notes Finance Parties
and High Yield Noteholders may exercise such rights of subrogation, each
Senior Party (as the case may be) (and subject, in each case, to being
indemnified to its reasonable satisfaction against any resulting costs,
expenses and liabilities, by cash collateral if so requested) will give
such assistance to enable such rights to be exercised as the High Yield
Notes Finance Parties and High Yield Noteholders and/or the Security Agent
may reasonably request.
|
|
25.2
|
Subrogation of holder of High
Yield Notes On-Loan
|
If any
Senior Debt or Hedging Debt is paid out of any proceeds received in respect of
or on account of the High Yield Notes On-Loan Debt:
-62-
|
|
(a)
|
those
holders of the High Yield Notes On-Loan will to that extent be subrogated
to the Senior Debt and Hedging Debt so paid (and all Security and
guarantees for that Senior Debt and Hedging Debt);
but
|
|
|
(b)
|
except
with the prior consent of each Senior Representative under its respective
Senior Agreement (as the case may be), the holders of the High Yield Notes
On-Loan may not exercise those subrogation rights until after the Senior
Discharge Date. After the Senior Discharge Date, to the extent
that the holder of the High Yield Notes On-Loan may exercise such rights
of subrogation, each Senior Party (as the case may be) (and subject, in
each case, to being indemnified to its reasonable satisfaction against any
resulting costs, expenses and liabilities, by cash collateral if so
requested) will give such assistance to enable such rights to be exercised
as the holders of the High Yield Notes On-Loan may reasonably
request.
|
|
25.3
|
Non-subrogation
|
Save to
any extent otherwise agreed by an Instructing Group, no Subordinated Party,
Intercompany Borrower or Obligor will under any circumstances be subrogated to
or entitled to exercise any of the rights of any Senior Party, High Yield
Noteholder or High Yield Notes Finance Party or any Security under the Finance
Documents.
|
26.
|
CONSENTS
|
|
26.1
|
No objection by High Yield
Notes Finance Parties, High Yield Noteholders or holders of the High Yield
Notes On-Loan
|
No High
Yield Notes Finance Party, High Yield Noteholder or holder of the High Yield
Notes On-Loan shall have any claim or remedy against any member of the Group or
Senior Party by reason of:
|
|
(a)
|
the
entry by any of them into any Finance Document or any other agreement
contemplated in any Finance Document between any Senior Party and any
member of the Group;
|
|
|
(b)
|
any
waiver or consent; or
|
|
|
(c)
|
any
requirement or condition imposed by or on behalf of any Senior Party under
any Finance Document, or any such other
agreement,
|
which
breaches or causes a default, an event of default or potential event of default
(however described) under any High Yield Notes Finance Document or High Yield
Notes On-Loan Document. No High Yield Noteholder, High Yield Notes Finance Party
or holder of the High Yield Notes On-Loan, may object to any such matter by
reason of any provision of any High Yield Notes Finance Document or High Yield
Notes On-Loan Document.
|
26.2
|
No objection by Subordinated
Parties
|
No
Subordinated Party shall have any claim or remedy against any member of the
Group or any Senior Party, High Yield Notes Finance Party or High Yield
Noteholder by reason of:
|
|
(a)
|
the
entry by any of them into any Finance Document, High Yield Notes On-Loan
Document or any other agreement between any such party and any member of
the Group;
|
|
|
(b)
|
any
waiver or consent; or
|
|
|
(c)
|
any
requirement or condition imposed by or on behalf of any such party under
any Finance Document, High Yield Notes On-Loan Document or any such other
agreement,
|
-63-
which
breaches or causes a default, an event of default or potential event of default
(however described) under any Intercompany Document or Investor Document. No
Subordinated Party may object to any such matter by reason of any provision of
any Investor Document or Intercompany Document.
|
27.
|
ROLE
OF THE SECURITY AGENT
|
|
27.1
|
Appointment of the Security
Agent
|
|
27.1.1
|
Each
other Senior Secured Party, each Arco Notes Finance Party, each Equistar
Notes Finance Party and each High Yield Notes Finance Party appoints
Citibank, N.A. to act as security trustee under and in connection with the
Senior Finance Documents, the Hedging Documents, the Interim Facility
Finance Documents, the Second Lien Notes Finance Documents, the Arco Notes
Finance Documents, the Equistar Notes Finance Documents or the High Yield
Notes Finance Documents (as relevant) and this Agreement in relation to
any security interest which is expressed to be or is construed to be
governed by English, Hong Kong or laws of Canada (including the federal
laws of Canada and the laws of each province or territory thereof), or any
other law from time to time designated by the Security Agent and an
Obligor.
|
|
27.1.2
|
Except
as expressly provided in this Clause 27.1.1, and without limiting or
affecting Clause 24.6 (Parallel Debt), each
other Senior Secured Party, Arco Notes Finance Party, Equistar Notes
Finance Party and High Yield Notes Finance Party appoints Citibank, N.A.
to act as collateral agent (the “Collateral
Agent”) under and in connection with the Senior Finance
Documents, the Hedging Documents, the Interim Facility Finance Documents,
the Second Lien Notes Finance Documents, the Arco Notes Finance Documents,
the Equistar Notes Finance Documents and the High Yield Notes Finance
Documents (as relevant) and this
Agreement.
|
|
27.1.3
|
Without
limiting or affecting Clause 24.6 (Parallel Debt), each
other Senior Secured Party, each Arco Notes Finance Party, each Equistar
Notes Finance Party and each High Yield Notes Finance Party authorises the
Security Agent to execute on its behalf the Security Documents and
exercise the rights, powers, authorities and discretions specifically
given to it under or in connection with the Senior Finance Documents, the
Hedging Documents, the Interim Facility Finance Documents, the Second Lien
Notes Finance Documents, the High Yield Notes Finance Documents, the Arco
Notes Finance Documents, the Equistar Notes Finance Documents and this
Agreement together with any other incidental rights, powers, authorities
and discretions.
|
|
27.1.4
|
For
the purposes of any security to be granted by an Obligor in the Province
of Québec, each Senior Finance Party (acting for itself and on behalf of
each of its Affiliates which are or become a Senior Finance Party from
time to time) confirms the appointment and designation of the Security
Agent (or any successor thereto) as the person holding the power of
attorney (“fondé de
pouvoir”) within the meaning of Article 2692 of the Civil Code of
Québec and, in such capacity, the Security Agent shall hold the hypothecs
granted under the laws of the Province of Québec as such fondé de pouvoir in the
exercise of the rights conferred thereunder. The execution by
the Security Agent, as such fondé de pouvoir prior
to the date hereof of any deed creating or evidencing any such hypothec is
hereby ratified and confirmed. Notwithstanding the provisions
of Section 32 of the Act respecting the special powers of legal persons
(Québec), the
Security Agent may acquire and be the holder of any of the bonds issued
and secured by any such hypothec. Each future Senior Secured Party that
becomes party to this Agreement, by becoming a party to this Agreement,
shall be deemed to have ratified and confirmed (for itself and, in the
case of each Senior Secured Party, on behalf of each of its Affiliates
that are or become a Senior Secured Party from time to time) the
appointment of the Security Agent as fondé de
pouvoir.
|
|
27.1.5
|
The
appointment referred to under this Clause 27.1 (Appointment of Security
Agent) shall be regarded and construed, for the purposes of Italian
law, as a xxxxxxx con
rappresentanza, and accordingly the Security Agent shall act as the
mandatario con
rappresentanza of the Senior secured Parties and shall be fully
entitled to, without limitation:
|
-64-
|
|
(a)
|
exercise
in its name (in nome
proprio) and in the name and on behalf (in nome e per conto) of
the Senior Secured Parties all rights, powers and discretion, execute all
documents and take all actions which are expressed to be exercised,
executed or taken by the Senior Secured Parties under or in connection
with any of the Security Documents governed by Italian
law;
|
|
|
(b)
|
execute
and perfect, in its name (in nome proprio) and in
the name and on behalf (in nome e per como) of
the Senior Secured Parties, any amendment agreement, deed of
acknowledgement, supplemental deed, confirmation deed or any other
document to be executed in connection with or under any Security Document
governed by Italian law;
|
|
|
(c)
|
apply
the proceeds of any enforcement and sale under the relevant Security
Document governed by Italian law in accordance with the terms of this
Agreement; and
|
|
|
(d)
|
take,
in its name (in nome
proprio) and in the name and on behalf (in nome e per conto) of
the Senior Secured Parties, any enforcement action in connection with any
Security and in accordance with the enforcement procedures provided for by
Italian law and the provisions of the security documents governed by
Italian law, provided that the Security Agent may delegate or authorize
any Senior Secured Party to take enforcement actions in compliance with
the provisions of the other Finance Documents and the provisions of
Italian law.
|
|
27.1.6
|
The
Security Agent is released from the restrictions set forth in Section 181
of the German Civil Code (Bürgerliches
Gesetzbuch) and is also entitled to release sub-delegates from such
restrictions.
|
|
27.2
|
Duties of the Security
Agent
|
|
27.2.1
|
The
Senior Agent, the Interim Facility Agent, the Second Lien Notes Trustee,
the Arco Notes Trustee, the Equistar Notes Trustee and the High Yield
Notes Trustee shall promptly send to the Security Agent such certification
as the Security Agent may reasonably require pursuant to paragraph 7
(Basis of
distribution) of Schedule 9 (Security agency
provisions).
|
|
27.2.2
|
The
duties of the Security Agent under the Senior Finance Documents, the
Hedging Documents, the Interim Facility Finance Documents, the Second Lien
Notes Finance Documents, the Arco Notes Security Documents, the Equistar
Notes Security Documents, the High Yield Notes Finance Documents and this
Agreement are solely mechanical and administrative in
nature.
|
|
27.3
|
Role of the Security
Agent
|
The
Security Agent shall not be an agent or trustee of any Senior Secured Party,
High Yield Notes Finance Party, Arco Notes Finance Party, Equistar Notes Finance
Party, High Yield Noteholder or holder of the High Yield Notes On-Loan (save, in
each case, as expressly provided in any Finance Document) or any Obligor or any
other person under or in connection with any Senior Finance Document, Hedging
Document, Interim Facility Finance Document, the Second Lien Notes Finance
Documents, the Arco Notes Security Document, the Equistar Notes Security
Document, the High Yield Notes Finance Document or this Agreement. The Security
Agent is not acting as an agent or trustee of any Investor.
|
27.4
|
No fiduciary
duties
|
|
27.4.1
|
Nothing
in this Agreement constitutes the Security Agent (except as expressly
provided in Clause 24.6 (Parallel Debt) or
Schedule 9 (Security
agency provisions)) as a trustee or fiduciary of any other
person.
|
-65-
|
27.4.2
|
The
Security Agent shall not be bound to account to any Senior Secured Party,
Second Lien Noteholders, Arco Noteholders, Equistar Noteholders, High
Yield Notes Finance Party or High Yield Noteholder for any sum or the
profit element of any sum received by it for its own
account.
|
|
27.5
|
Business with the
Group
|
The
Security Agent may accept deposits from, lend money to and generally engage in
any kind of banking or other business with any member of the Group or any other
person.
|
27.6
|
Rights and discretions of the
Security Agent
|
|
27.6.1
|
The
Security Agent may rely on:
|
|
|
(a)
|
any
representation, notice or document believed by it to be genuine, correct
and appropriately authorised; and
|
|
|
(b)
|
any
statement made by a director, authorised signatory or employee of any
person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to
verify.
|
|
27.6.2
|
The
Security Agent may assume, unless it has received notice to the contrary
in its capacity as security trustee or security agent for the Senior
Secured Parties, Second Lien Noteholders, Arco Noteholders, Equistar
Noteholders, High Yield Noteholders and High Yield Notes Finance Parties,
that:
|
|
|
(a)
|
no
default, event of default or potential event of default, however
described, has occurred (unless it has actual knowledge of a default, an
event of default or potential event of default, however described, arising
under a Senior Default relating to non-payment or any failure by an
Obligor to pay on the due date any amount payable pursuant to a Hedging
Document at the place at and in the currency in which it is expressed to
be payable);
|
|
|
(b)
|
any
right, power, authority or discretion vested in any Party or any group of
Senior Lenders, Interim Facility Lenders, Senior Secured Parties, Second
Lien Noteholder, Arco Noteholder, Equistar Noteholder, High Yield
Noteholder or High Yield Notes Finance Parties has not been exercised;
and
|
|
|
(c)
|
any
notice or request made by the Company (other than a Committed Loan Notice
or a Swing Line Loan Notice (each as defined in the Senior Facility
Agreement) or a Borrowing Request (as defined in the Interim Facility
Agreement) under the Senior Facility Agreement or the Interim Facility
Agreement) is made on behalf of and with the consent and knowledge of all
the Obligors.
|
|
27.6.3
|
The
Security Agent may engage, pay for and rely on the advice or services of
any lawyers, accountants, surveyors or other
experts.
|
|
27.6.4
|
The
Security Agent may act in relation to the Senior Finance Documents, the
Hedging Documents, the Interim Facility Finance Documents, the Second Lien
Notes Finance Documents, the High Yield Notes Finance Documents and this
Agreement through its personnel and
agents.
|
|
27.6.5
|
The
Security Agent may disclose to any other Party any information it
reasonably believes it has received as Security
Agent.
|
|
27.6.6
|
Notwithstanding
any other provision of any Senior Finance Document, any Hedging Document,
any Interim Facility Finance Document, any Second Lien Notes Finance
Document, the Arco Notes Security Document and the Equistar Notes Security
Document, any High Yield Notes Finance Document or this Agreement to the
contrary, the Security Agent is not obliged to do or omit to do anything
if it would or might in its reasonable opinion constitute a breach of any
law or regulation, or a breach of a fiduciary duty or duty of
confidentiality.
|
-66-
|
27.7
|
Responsibility for
documentation
|
The
Security Agent is not responsible for:
|
|
(a)
|
the
adequacy, accuracy and/or completeness of any information (whether oral or
written) supplied by the Security Agent, an Obligor or any other person
given in or in connection with any Senior Finance Document, any Hedging
Document, any Interim Facility Finance Document, any Second Lien Notes
Finance Documents, Arco Notes Security Documents, Equistar Notes Security
Document, any High Yield Notes Finance Document or this Agreement;
or
|
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of any
Senior Finance Document, any Hedging Document, any Interim Facility
Finance Document, any Second Lien Notes Finance Documents, any Arco Notes
Finance Document, any Equistar Notes Finance Documents any High Yield
Notes Finance Document, this Agreement or any other agreement, arrangement
or document entered into, made or executed in anticipation of or in
connection with any Senior Finance Document, any Hedging Document, any
Interim Facility Finance Document, any Second Lien Notes Finance
Documents, any Arco Notes Finance Document, any Equistar Notes Finance
Documents any High Yield Notes Finance Document or this
Agreement.
|
|
27.8
|
Exclusion of
liability
|
|
27.8.1
|
Without
limiting paragraph 27.8.2 below, the Security Agent will not be liable for
any action taken by it under or in connection with any Senior Finance
Document, any Hedging Document, any Interim Facility Finance Document, any
Second Lien Notes Finance Documents,any Arco Notes Security Documents, any
Equistar Notes Security Document, any High Yield Notes Finance Document or
this Agreement, unless directly caused by its gross negligence or willful
misconduct.
|
|
27.8.2
|
No
Party (other than the Security Agent) may take any proceedings against any
officer, employee or agent of the Security Agent in respect of any claim
it might have against the Security Agent or in respect of any act or
omission of any kind by that officer, employee or agent in relation to any
Senior Finance Document, any Hedging Document, any Interim Facility
Finance Document, any Second Lien Notes Finance Documents, any Arco Notes
Security Documents, any Equistar Notes Security Document, any High Yield
Notes Finance Document or this Agreement and any officer, employee or
agent of the Security Agent may rely on this
Clause.
|
|
27.8.3
|
The
Security Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under the
Senior Finance Documents, the Hedging Documents, the Interim Facility
Finance Documents, the Second Lien Notes Finance Documents, the Arco Notes
Security Documents, the Equistar Notes Security Document, the High Yield
Notes Finance Document or this Agreement to be paid by it if it has taken
all necessary steps as soon as reasonably practicable to comply with the
regulations or operating procedures of any recognised clearing or
settlement system used by it for that
purpose.
|
|
27.9
|
Indemnities to the Security
Agent
|
Each
other Senior Secured Party, Second Lien Noteholder, Arco Notes Noteholder,
Equistar Notes Noteholder and High Yield Noteholder shall (in proportion to its
share of the Senior Debt, Hedging Debt, Interim Facility Debt, Second Lien Notes
Debt, Arco Notes Debt, Equistar Notes Debt or High Yield Notes Guarantee Debt
(as the case may be)) then outstanding to all the Senior Debt, Hedging Debt,
Interim Facility Debt, Second Lien Notes Debt or High Yield Notes Guarantee Debt
(as the case may be) then outstanding indemnify the Security Agent, within three
Business Days of demand, against any cost, loss or liability incurred by the
Security Agent (otherwise than by reason of its gross negligence or willful
misconduct) in acting as Security Agent under the Senior Finance Documents, the
Hedging Documents, the Interim Facility Finance Documents, Second Lien Notes
Finance Documents, the Arco Notes Security Documents, the Equistar Notes
Security Document, or the High Yield Notes Finance Documents (if relevant) or
this Agreement (unless it has been reimbursed by an Obligor pursuant to a Senior
Finance Document, a Hedging Document, an Interim Facility Finance Document, the
Second Lien Notes Finance Documents, any Arco Notes Security Documents, any
Equistar Notes Security Document, or a High Yield Notes Finance Document (as
relevant) or this Agreement).
-67-
|
27.10
|
Resignation of the Security
Agent
|
|
27.10.1
|
The
Security Agent may resign and appoint one of its Affiliates acting through
an office as successor by giving five days’ written notice to the Interim
Facility Finance Parties, the Arco Notes Trustee, the Equistar Notes
Trustee, the Second Lien Notes Trustee, the High Yield Notes Trustee and
the Company and, until the Senior Discharge Date, the other Senior Finance
Parties and the Hedging Banks.
|
|
27.10.2
|
Alternatively,
the Security Agent may resign by giving five days’ written notice to the
Interim Facility Finance Parties, the Second Lien Notes
Trustee, the Arco Notes Trustee, the Equistar Notes Trustee,
the High Yield Notes Trustee and the Company and, until the Senior
Discharge Date, the other Senior Finance Parties and the Hedging Banks, in
which case the Senior Agent under the Senior Facility Agreement, until the
Senior Facility Discharge Date, or the Interim Facility Agent under the
Interim Facility Agreement, after the Senior Facility Discharge Date, the
Second Lien Notes Trustee, after the Senior Facility Discharge Date and
the interim Facility Discharge Date, or the High Yield Notes Trustee,
after the Second Lien Notes Discharge Date (in each case, after
consultation with the Company) may appoint a successor Security
Agent.
|
|
27.10.3
|
If
the Senior Agent under the Senior Facility Agreement, the Interim Facility
Agent under the Interim Facility Agreement, the Second Lien Notes Trustee
or, as the case may be, the High Yield Notes Trustee have not appointed a
successor Security Agent in accordance with paragraph 27.10.2 above within
30 days after notice of resignation has been given, the Security Agent
(after consultation with the Company) may appoint a successor Security
Agent.
|
|
27.10.4
|
The
retiring Security Agent shall make available to its successor such
documents and records and provide such assistance as its successor may
reasonably request for the purposes of performing its functions as
Security Agent under the Senior Finance Documents, the Hedging Documents,
the Interim Facility Finance Documents, the Second Lien Notes Finance
Documents, the Arco Notes Security Documents, the Equistar Notes Security
Documents, the High Yield Notes Finance Documents and this
Agreement.
|
|
27.10.5
|
The
resignation notice of the Security Agent shall only take effect upon (i)
the appointment of a successor and (ii) the execution of all documents and
the taking of all other actions necessary or, in the reasonable opinion of
the successor desirable, in connection with the substitution, in
accordance with applicable law, of the successor as creditor of each
Obligor’s Parallel Debt and as holder of the Security created pursuant to
the Finance Documents.
|
|
27.10.6
|
Upon
the appointment of a successor, the retiring Security Agent shall be
discharged from any further obligation in respect of the Senior Finance
Documents, the Hedging Documents, the Interim Facility Finance Documents,
the Second Lien Notes Finance Documents, the Arco Notes Finance Documents,
the Equistar Notes Finance Documents, the High Yield Notes Finance
Documents and this Agreement except from those arising before the
resignation of the Security Agent, but shall remain entitled to the
benefit of this Clause 27. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves as they
would have had if such successor had been an original
Party.
|
-68-
|
27.10.7
|
After
consultation with the Company, the Senior Agent under the Senior Facility
Agreement, until the Senior Facility Discharge Date, or the Interim
Facility Agent under the Interim Facility Agreement, after the Senior
Discharge Date and until the Interim Facility Discharge Date, the Second
Lien Notes Trustee after the Senior Facility Discharge Date and the
Interim Facility Discharge Date and until the Second Lien Notes Discharge
Date or the High Yield Notes Trustee, after the Second Lien Notes
Discharge Date, may, by notice to the Security Agent, require it to resign
in accordance with paragraph 27.10.2 above. In this event, the Security
Agent shall resign in accordance with paragraphs 27.10.2 and 27.10.5
above.
|
|
27.11
|
Confidentiality
|
|
27.11.1
|
The
Security Agent (in acting as security trustee or security agent for the
Senior Secured Parties, the Arco Finance Parties, the Equistar Finance
Parties, the Second Lien Noteholders, the High Yield Notes Finance Parties
and High Yield Noteholders) shall be regarded as acting through its
respective security trustee or security agency division which shall be
treated as a separate entity from any other of its divisions or
departments.
|
|
27.11.2
|
If
information is received by another division or department of the Security
Agent, it may be treated as confidential to that division or department
and the Security Agent shall not be deemed to have notice of
it.
|
|
27.12
|
Credit appraisal by the Secured
Parties and High Yield Notes
Trustee
|
Without
affecting the responsibility of any Obligor or other person for information
supplied by it or on its behalf in connection with any Senior Finance Document,
any Hedging Document, any Interim Facility Finance Document, any Second Lien
Notes Finance Documents, any High Yield Notes Finance Document or this
Agreement, each Senior Finance Party, Hedging Bank, Interim Facility Finance
Party, Second Lien Notes Finance Party, Second Lien Noteholder, High Yield Notes
Finance Party and High Yield Noteholder confirms to the Security Agent that it
has been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with any Senior Finance Document, any Hedging Document, any Interim
Facility Finance Document, any Second Lien Notes Finance Documents, any High
Yield Notes Finance Document or this Agreement including but not limited
to:
|
27.12.1
|
the
financial condition, status and nature of each member of the Group and the
Target Group;
|
|
27.12.2
|
the
legality, validity, effectiveness, adequacy or enforceability of any
Senior Finance Document, any Hedging Document, any Interim Facility
Finance Document, any Second Lien Notes Finance Documents, any High Yield
Notes Finance Document or this Agreement or any other agreement, Security,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Senior Finance Document, any Hedging
Document, any Interim Facility Finance Document, any Second Lien Notes
Finance Documents, any High Yield Notes Finance Document or this
Agreement;
|
|
27.12.3
|
whether
that Senior Finance Party, Hedging Bank, Interim Facility Finance Party,
Second Lien Notes Finance Party or High Yield Notes Finance Party has
recourse, and the nature and extent of that recourse, against any Party or
any of its respective assets under or in connection with any Senior
Finance Document, any Hedging Bank, any Interim Facility Finance Document,
any Second Lien Notes Finance Documents, any High Yield Notes Finance
Document or this Agreement, the transactions contemplated by the Senior
Finance Documents, the Hedging Documents, the Interim Facility Finance
Documents, any Second Lien Notes Finance Documents, the High Yield Notes
Finance Documents or this Agreement or any other agreement, Security,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Senior Finance Document, any Hedging
Document, any Interim Facility Finance Document, any Second Lien Notes
Finance Documents, any High Yield Notes Finance Document or this
Agreement; and
|
-69-
|
27.12.4
|
the
adequacy, accuracy and/or completeness of any information provided by the
Security Agent, any Party or by any other person under or in connection
with any Senior Finance Document, any Hedging Document, any Interim
Facility Finance Document, any Second Lien Notes Finance Documents, any
High Yield Notes Finance Document or this Agreement, the transactions
contemplated by the Senior Finance Documents, the Hedging Documents, the
Interim Facility Finance Document, any Second Lien Notes Finance
Documents, any High Yield Notes Finance Documents or this Agreement or any
other agreement, Security, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Senior
Finance Document, any Hedging Document, any Interim Facility Finance
Document, any Second Lien Notes Finance Documents, any High Yield Notes
Finance Document or this Agreement.
|
|
27.13
|
Management time of the Security
Agent
|
Any
amount payable to the Security Agent under Clause 27.9 (Indemnities to the Security
Agent) and Clause 31 (Expenses) shall include the
cost of utilising its management time or other resources and will be calculated
on the basis of such reasonable daily or hourly rates as it may notify to the
Company, the Senior Agent, the Hedging Banks, the Interim Facility Agent, the
Second Lien Notes Trustee and the High Yield Notes Trustee, as relevant, and is
in addition to any fee paid or payable to it under any Senior Finance Document,
any Hedging Document, any Interim Facility Finance Document, any Second Lien
Notes Finance Documents, any High Yield Notes Finance Document or this
Agreement.
|
27.14
|
Deduction from amounts payable
by the Security Agent
|
If any
Party owes an amount to the Security Agent under the Senior Finance Documents,
the Hedging Documents, the Interim Facility Finance Documents, the Second Lien
Notes Finance Documents, the High Yield Notes Finance Documents or this
Agreement, the Security Agent may, after giving notice to that Party, deduct an
amount not exceeding that amount from any payment to that Party which the
Security Agent would otherwise be obliged to make under the Senior Finance
Documents, the Hedging Documents, the Interim Facility Finance Documents, the
Second Lien Notes Finance Documents, the High Yield Notes Finance Documents or
this Agreement and apply the amount deducted in or towards satisfaction of the
amount owed. For the purposes of the Senior Finance Documents, the Hedging
Documents, the Interim Facility Finance Documents, the Second Lien Notes Finance
Documents, the High Yield Notes Finance Documents or this Agreement,
that Party shall be regarded as having received any amount so deducted provided,
however, that this Clause 27.14 shall not entitle the Security Agent to deduct
any amount from any High Yield Notes Trustee Amounts.
|
27.15
|
Security agency
provisions
|
The
provisions of Schedule 9 (Security agency provisions)
shall bind each Party.
|
27.16
|
Security agency
fee
|
The
Company shall pay to the Security Agent (for its own account) a security agency
fee in the amount and at the times agreed in a Fee Letter.
|
27.17
|
Indemnity to the Security
Agent
|
The
Company shall promptly indemnify the Security Agent against any cost, loss or
liability incurred by the Security Agent (acting reasonably) as a result
of:
|
27.17.1
|
investigating
any event which it reasonably believes is a default, an event of default
or potential event of default, however described;
or
|
|
27.17.2
|
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised.
|
-70-
|
27.18
|
Security Agent
expenses
|
The
Company shall promptly on demand pay the Security Agent the amount of all costs
and expenses (including legal fees) incurred by it in connection with the
administration or release of any Security created pursuant to any Security
Document.
|
28.
|
TRUSTEES
|
|
28.1
|
Liability
|
|
28.1.1
|
It
is expressly understood and agreed by the Parties that this Agreement is
executed and delivered by each Trustee not individually or personally but
solely in its capacity as trustee in the exercise of the powers and
authority conferred and vested in it under its respective Notes Finance
Documents for and on behalf of the Noteholders only for which such Trustee
acts as trustee and it shall have no liability for acting for itself or in
any capacity other than as trustee and nothing in this Agreement shall
impose on it any obligation to pay any amount out of its personal assets.
Notwithstanding any other provision of this Agreement, its obligations
hereunder (if any) to make any payment of any amount or to hold any amount
on trust shall be only to make payment of such amount to or hold any such
amount on trust to the extent that (i) it has actual knowledge that such
obligation has arisen and (ii) it has received and, on the date on which
it acquires such actual knowledge, has not distributed to the Noteholders
for which it acts as trustee in accordance with its respective Notes
Indenture (in relation to which it is trustee) any such
amount.
|
|
28.1.2
|
It
is further understood and agreed by the Parties that in no case shall any
Trustee be (i) personally responsible or accountable in damages or
otherwise to any other party for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by that High Yield
Notes Trustee in good faith in accordance with this Agreement or any of
the Notes Finance Documents in a manner that such Trustee believed to be
within the scope of the authority conferred on it by this Agreement or any
of its respective Notes Finance Documents or by law, or (ii) personally
liable for or on account of any of the statements, representations,
warranties, covenants or obligations stated to be those of any other
Party, all such liability, if any, being expressly waived by the Parties
and any person claiming by, through or under such Party; provided however,
that each Trustee shall be personally liable under this Agreement for its
own gross negligence or willful misconduct. It is also acknowledged and
agreed that no Trustee shall have any responsibility for the actions of
any individual Creditor or Noteholder (save in respect of its own
actions).
|
|
28.2
|
No
action
|
No
Trustee shall have any obligation to take any action under this Agreement unless
it is indemnified and/or secured and/or prefunded to its satisfaction in respect
of all costs, expenses and liabilities which it would in its opinion thereby
incur (together with any associated VAT). No Trustee shall have an obligation to
indemnify (out of its personal assets) any other person, whether or not a Party,
in respect of any of the transactions contemplated by this Agreement unless
caused by its gross negligence or willful misconduct.
|
28.3
|
Reliance on
certificates
|
Each
Trustee shall at all times be entitled to and may rely on any notice, consent or
certificate given or granted by any Party without being under any obligation to
enquire or otherwise determine whether any such notice, consent or certificate
has been given or granted by such Party properly acting as directed by the
appropriate Instructing Group.
|
28.4
|
No fiduciary
duty
|
No
Trustee shall be deemed to owe any fiduciary duty to any Creditor (save in
respect of such persons for whom it acts as trustee) and shall not be personally
liable to any Creditor if it shall in good faith mistakenly pay over or
distribute to any Creditor or to any other person cash, property or securities
to which any other Creditor shall be entitled by virtue of this Agreement or
otherwise. With respect to the Creditors, each Trustee undertakes to perform or
to observe only such of its covenants or obligations as are specifically set
forth in the Notes Finance Documents pursuant to which it acts as trustee and
this Agreement and no implied agreement, covenants or obligations with respect
to the other Creditors shall be read into this Agreement against the High Yield
Notes Trustee.
-71-
|
28.5
|
Debt
assumptions
|
The High
Yield Notes Trustee is entitled to assume that in respect of the Senior
Debt:
|
28.5.1
|
no
Senior Payment Default has
occurred;
|
|
28.5.2
|
no
other Senior Default has occurred;
|
|
28.5.3
|
none
of the Senior Debt has been accelerated;
and
|
|
28.5.4
|
the
Senior Discharge Date has not
occurred,
|
unless a
Responsible Officer of the High Yield Notes Trustee has actual knowledge to the
contrary. The High Yield Notes Trustee is not obliged to monitor or enquire
whether any Senior Default has occurred.
|
28.6
|
Senior Lenders, Hedging Banks
or Interim Facility Lenders
|
In acting
pursuant to this Agreement and the High Yield Notes Indenture, the High Yield
Notes Trustee is not required to have any regard to the interests of the Senior
Lenders, Hedging Banks, Interim Facility Lenders, Second Lien Noteholders or
Unsecured Senior Noteholders.
|
28.7
|
Claims of Security
Agent
|
The
Security Agent agrees and acknowledges that it shall have no claim against any
Trustee in respect of any fees, costs, expenses and liabilities due and payable
to, or incurred by, the Security Agent.
|
28.8
|
Reliance and
advice
|
Each
Trustee may:
|
28.8.1
|
rely
on any notice or document believed by it to be genuine and correct and to
have been signed by, or with the authority of, the proper
person;
|
|
28.8.2
|
rely
on any statement made by any person regarding any matters which may be
assumed to be within its knowledge or within its powers to verify;
and
|
|
28.8.3
|
engage,
pay for and rely on professional advisers selected by it (including those
representing a person other than such
Trustee).
|
|
28.9
|
Provisions survive
termination
|
The
provisions of this Clause 28 shall survive any termination of this
Agreement.
|
28.10
|
Other Parties not
affected
|
No
provision of this Clause 28 shall alter or change the rights and obligations as
between the other Parties in respect of each other.
-72-
|
28.11
|
Instructions
|
|
28.11.1
|
In
acting under this Agreement, the Second Lien Notes Trustee shall seek
instructions from the Second Lien Noteholders at any time and, where it
acts on the instructions of the Second Lien Noteholders, the Second Lien
Notes Trustee shall not incur any liability to any person for so acting.
The Second Lien Notes Trustee is not liable to any person for any loss
suffered as a result of any delay caused as a result of it seeking
instructions from the Second Lien
Noteholders.
|
|
28.11.2
|
In
acting under this Agreement, the Unsecured Senior Notes Trustee shall seek
instructions from the Unsecured Senior Noteholders at any time and, where
it acts on the instructions of the Unsecured Senior Noteholders, the
Unsecured Senior Notes Trustee shall not incur any liability to any person
for so acting. The Unsecured Senior Notes Trustee is not liable to any
person for any loss suffered as a result of any delay caused as a result
of it seeking instructions from the Unsecured
Noteholders.
|
|
28.11.3
|
In
acting under this Agreement, the High Yield Notes Trustee shall seek
instructions from the High Yield Noteholders at any time and, where it
acts on the instructions of the High Yield Noteholders, the High Yield
Notes Trustee shall not incur any liability to any person for so acting.
The High Yield Notes Trustee is not liable to any person for any loss
suffered as a result of any delay caused as a result of it seeking
instructions from the High Yield
Noteholders.
|
|
28.12
|
Responsibility of High Yield
Notes Trustee
|
No
Trustee is responsible to any other Senior Finance Party, Interim Facility
Finance Party, Hedging Bank, Second Lien Notes Finance Party, Unsecured Senior
Notes Finance Party or High Yield Notes Finance Party for the legality,
validity, effectiveness, enforceability, adequacy, accuracy, completeness or
performance of:
|
28.12.1
|
any
Finance Document or any other
document;
|
|
28.12.2
|
any
statement or information (whether written or oral) made in or supplied in
connection with any Finance Document or any other document;
or
|
|
28.12.3
|
any
observance by any Obligor of its obligations under any Finance Document or
any other document.
|
|
28.13
|
Confirmation
|
Without
affecting the responsibility of any Obligor for information supplied by it or on
its behalf in connection with any Finance Document, each Senior Lender, Interim
Facility Lender, Hedging Bank, Second Lien Notes Finance Party, Unsecured Senior
Notes Finance Party and High Yield Notes Finance Party (other than each Trustee
(in its personal capacity) and the Security Agent) confirms that
it:
|
28.13.1
|
has
made, and will continue to make, its own independent appraisal of all
risks arising under or in connection with the Senior Finance Documents,
the Interim Facility Finance Documents, the Hedging Documents, the Second
Lien Notes Finance Documents, the Unsecured Senior Notes Finance Documents
or the High Yield Notes Finance Documents (including the financial
condition and affairs of each Obligor and its related entities and the
nature and extent of any recourse against any Party or its assets);
and
|
|
28.13.2
|
has
not relied exclusively on any information provided to it by any Trustee in
connection with any Senior Finance Document, Interim Facility Finance
Document, Hedging Document, the Second Lien Notes Finance Documents, the
Unsecured Senior Notes Finance Documents or the High Yield Notes Finance
Document.
|
-73-
|
28.14
|
Provision of
information
|
No
Trustee is obliged to review or check the adequacy, accuracy or completeness of
any document it forwards to another Party. No Trustee is responsible
for:
|
28.14.1
|
providing
any Senior Lender, Interim Facility Lender, Hedging Bank, Second Lien
Noteholder, Unsecured Senior Noteholder or High Yield Noteholder with any
credit or other information concerning the risks arising under or in
connection with the Senior Finance Documents, Interim Facility Finance
Documents, Hedging Documents, Second Lien Notes Finance Documents,
Unsecured Senior Notes Finance Documents or High Yield Notes Finance
Documents (including any information relating to the financial condition
or affairs of any Obligor or its related entities or the nature or extent
of recourse against any Party or its assets) whether coming into its
possession before, on or after the date of this Agreement;
or
|
|
28.14.2
|
obtaining
any certificate or other document from any
Obligor.
|
|
28.15
|
Departmentalism
|
In acting
as a Trustee, each Trustee shall be treated as acting through its agency
division which shall be treated as a separate entity from its other divisions
and departments. Any information received or acquired by a Trustee which, in its
opinion, is received or acquired by some other division or department or
otherwise than in its capacity as a Trustee may be treated as confidential by
such Trustee and will not be treated as information possessed by such Trustee in
its capacity as such.
|
28.16
|
Disclosure of
information
|
Each
Obligor irrevocably authorises each Trustee to disclose to any Senior Finance
Party, Hedging Bank, Interim Facility Finance Party, Second Lien Notes Finance
Party, Unsecured Senior Notes Finance Party and any High Yield Notes Finance
Party any information that is received by such Trustee in its capacity as a
Trustee.
|
28.17
|
Illegality
|
Each
Trustee may refrain from doing anything (including disclosing any information)
which might, in its opinion, constitute a breach of any law or regulation and
may do anything which, in its opinion, is necessary or desirable to comply with
any law or regulation.
|
28.18
|
Resignation of High Yield Notes
Trustee
|
Each
Trustee may resign or be removed in accordance with the terms of the High Yield
Notes Indenture, provided that a replacement trustee agrees with the Parties to
become the replacement trustee under this Agreement by the execution of an
Accession Agreement.
|
28.19
|
Trustee
assumptions
|
|
28.19.1
|
Each
Trustee is entitled to assume that any payment or other distribution made
pursuant to this Agreement or account of any Debt has been made in
accordance with the provisions of Clause 17.1 (Ranking) and Clause 20
(Application of
Recoveries) and the proceeds of enforcement of any Security
conferred by the High Yield Notes Security Documents have been applied in
the order set out in Clause 20 (Application of
Recoveries).
|
|
28.19.2
|
The
High Yield Notes Trustee is entitled to assume that any payment or other
distribution made pursuant to this Agreement in respect of the High Yield
Notes Debt has been made in accordance with the ranking in Clause 2 (Ranking) and is not
prohibited by Clause 6.2 (Prohibited High Yield Notes
Guarantee Debt Payments, Guarantees and Security), Clause 6.3
(Prohibited High Yield
Notes On-Loan Payments, Guarantees and Security) or Clause 10.3
(High Yield Notes
Guarantee Debt) and is permitted by Clause 11.3 (Permitted High Yield Notes
Guarantee Payments and Permitted High Yield Notes On-Loan
Payments); and
|
-74-
|
28.19.3
|
The
High Yield Notes Trustee is entitled to assume that any payment or
distribution made in respect of the High Yield Notes Guarantee Debt is not
prohibited by Clause 6.2 (Prohibited High Yield Notes
Guarantee Debt Payments, Guarantees and Security) unless it has
actual knowledge to the contrary.
|
|
28.19.4
|
No
Trustee shall not be obliged to monitor performance by the Obligors of
their respective obligations under, or compliance by them with, the terms
of this Agreement. No Trustee is responsible for recovering any moneys
paid to any Noteholder other than in accordance with the terms of this
Agreement other than as a result of its own gross negligence or willful
default.
|
|
28.19.5
|
No
Trustee shall have any obligation under this Clause 28.19 in respect of
amounts received or recovered by it unless (a) it has actual knowledge
that the receipt or recovery falls within paragraphs 28.19.1 and 28.19.2
above, and (b) it has not distributed to the Noteholders in accordance
with its respective Notes Indenture any amount so received or
recovered.
|
|
28.19.6
|
Notwithstanding
Clauses 28.19 (Trustee
Assumptions), each Trustee shall be liable under this Agreement for
its own gross negligence.
|
|
29.
|
INFORMATION
|
|
29.1
|
Defaults
|
|
29.1.1
|
Each
of the Senior Agent, the ABL Agent, the Interim Facility Agent, the Second
Lien Notes Trustee, the Unsecured Senior Notes Trustee and the High Yield
Notes Trustee will promptly notify each other and the Security Agent of
the occurrence of a default, an event of default or a potential event of
default (however described) under or breach of the Senior Facility
Agreement, ABL Agreement, the Interim Facility Agreement, Second Lien
Notes Indenture, Unsecured Senior Notes Indenture or the High
Yield Notes Indenture respectively of which it has actual
knowledge.
|
|
29.1.2
|
Each
Hedging Bank, Subordinated Party and the holder of the High Yield Notes
On-Loan will promptly notify the Senior Agent, the ABL Agent, the Interim
Facility Agent, the Second Lien Notes Trustee, the Unsecured Senior Notes
Trustee, the Security Agent and the High Yield Notes Trustee of the
occurrence of a default, an event of default or potential event of default
(however described, including any termination event) under or breach of
any Hedging Document, Investor Document, Intercompany Document or the High
Yield Notes On-Loan of which it has actual
knowledge.
|
|
29.2
|
Amounts of
Debt
|
Each of
the Senior Agent, the Hedging Banks, the Interim Facility Agent, the Second Lien
Notes Trustee, the Unsecured Senior Notes Trustee, the High Yield Notes Trustee,
the holder of the High Yield Notes On-Loan and the Subordinated Parties will on
request by any of the others or the Security Agent from time to time notify the
others and the Security Agent of details of the amount of its outstanding Senior
Debt under their respective Senior Agreement, its outstanding Hedging Debt, its
outstanding High Yield Notes Guarantee Debt, its outstanding High Yield Notes
On-Loan Debt or its outstanding Subordinated Debt respectively.
|
29.3
|
Discharge of Senior Debt and
Hedging Debt
|
The
Senior Agent shall promptly notify the Interim Facility Agent, the Second Lien
Notes Trustee, the Unsecured Senior Notes Trustee, the High Yield Notes Trustee
and the Security Agent of the occurrence of the Senior Facility Discharge Date.
Prior to receipt of any such notice, each Trustee shall be entitled to assume
that the Senior Facility Discharge Date has not occurred.
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|
29.4
|
Discharge of Interim Facility
Debt
|
The
Interim Facility Agent shall promptly notify the Security Agent, the Second Lien
Notes Trustee, the Unsecured Senior Notes Trustee and the High Yield Notes
Trustee of the occurrence of the Interim Facility Discharge Date.
Prior to
receipt of any such notice, each Trustee shall be entitled to assume that the
Interim Facility Discharge Date has not occurred.
|
29.5
|
Discharge of Second Lien Notes
Debt
|
The
Second Lien Notes Trustee shall promptly notify the Unsecured Senior Notes
Trustee, the High Yield Notes Trustee and the Security Agent of the occurrence
of the Second Lien Notes Discharge Date. Prior to receipt of any such
notice, the Unsecured Senior Notes Trustee and the High Yield Notes Trustee
shall be entitled to assume that the Second Lien Notes Discharge Date has not
occurred.
|
29.6
|
Discharge of Unsecured Senior
Notes Debt
|
The
Unsecured Senior Notes Trustee shall promptly notify the Second Lien Notes
Trustee, the High Yield Notes Trustee and the Security Agent of the occurrence
of the Unsecured Senior Notes Discharge Date. Prior to receipt of any
such notice, the Second Lien Notes Trustee and the High Yield Notes Trustee
shall be entitled to assume that the Unsecured Senior Notes Discharge Date has
not occurred.
|
29.7
|
Discharge of High Yield Notes
Guarantee Debt
|
The High
Yield Notes Trustee shall promptly notify the Security Agent of the occurrence
of the High Yield Notes Discharge Date. Prior to receipt of any such
notice, the Unsecured Senior Notes Trustee and the Second Lien Notes Trustee
shall be entitled to assume that the High Yield Notes Discharge Date has not
occurred.
|
29.8
|
Discharge of High Yield Notes
On-Loan Debt
|
The
holders of the High Yield Notes On-Loan shall promptly notify the Security Agent
of the occurrence of the High Yield Notes On-Loan Discharge Date (if after the
High Yield Notes Discharge Date).
|
29.9
|
Discharge of
Debt
|
For the
avoidance of doubt, no Party shall be required to amend or give any waiver or
consent under any provision of this Agreement after the date on which its Debt
has been fully and irrevocably paid or discharged and all commitments of that
Party in respect of its Debt have expired or been cancelled.
|
30.
|
POWER
OF ATTORNEY
|
|
30.1
|
Appointment - Senior
Agent
|
Each
Junior Creditor (other than the High Yield Notes Trustee and any High Yield
Noteholder) by way of security irrevocably appoints each of the Senior Agent and
the Security Agent as its attorney (with full power of substitution), on its
behalf and in its name or otherwise, at such time until the Senior Facility
Discharge Date and in such manner as the attorney thinks fit to do anything
which it:
|
30.1.1
|
has
authorised any Senior Finance Party to do under this Agreement;
and
|
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|
30.1.2
|
is
obliged to do but has not done under this Agreement within 10 Business
Days after receiving notice from the Senior Agent requiring it to do
so.
|
|
30.2
|
Appointment - Interim Facility
Agent
|
Each
Junior Creditor (other than the High Yield Notes Trustee and any High Yield
Noteholder) by way of security irrevocably appoints each of the Interim Facility
Agent and the Security Agent as its attorney (with full power of substitution),
on its behalf and in its name or otherwise, at such time after the Senior
Facility Discharge Date until the Interim Facility Discharge Date and in such
manner as the attorney thinks fit to do anything which it:
|
30.2.1
|
has
authorised any Interim Facility Finance Party to do under this Agreement;
and
|
|
30.2.2
|
is
obliged to do but has not done under this Agreement within 10 Business
Days after receiving notice from the Interim Facility Agent requiring it
to do so.
|
|
30.3
|
Appointment – Second Lien Notes
Trustee
|
Each
Junior Creditor by way of security irrevocably appoints the Second Lien Notes
Trustee as its attorney (with full power of substitution), on its behalf and in
its name or otherwise, at such time after the Senior Facility Discharge Date and
the Interim Facility Discharge Date until the Second Lien Notes Discharge Date
and in such manner as the attorney thinks fit to do anything which
it:
|
30.3.1
|
has
authorised any Second Lien Notes Finance Party to do under this Agreement;
and
|
|
30.3.2
|
is
obliged to do but has not done under this Agreement within 10 Business
Days after receiving notice from the Second Lien Notes Trustee requiring
it to do so.
|
|
30.4
|
Appointment – Unsecured Senior
Notes Trustee
|
Each
Junior Creditor by way of security irrevocably appoints the Unsecured Senior
Notes Trustee as its attorney (with full power of substitution), on its behalf
and in its name or otherwise, at such time after the Senior facility Discharge
Date, the Interim Facility Discharge Date and the Second Lien Notes Discharge
Date until the Unsecured Senior Notes Discharge Date and in such manner as the
attorney thinks fit to do anything which it:
|
30.4.1
|
has
authorised any Unsecured Senior Notes Finance Party to do under this
Agreement; and
|
|
30.4.2
|
is
obliged to do but has not done under this Agreement within 10 Business
Days after receiving notice from the Unsecured Senior Notes Trustee
requiring it to do so.
|
|
30.5
|
Appointment – High Yield Notes
Trustee
|
Each
Junior Creditor by way of security irrevocably appoints the High Yield Notes
Trustee as its attorney (with full power of substitution), on its behalf and in
its name or otherwise, at such time after the Senior Discharge Date until the
High Yield Discharge Date and in such manner as the attorney thinks fit to do
anything which it:
|
30.5.1
|
has
authorised any High Yield Notes Finance Party to do under this Agreement;
and
|
|
30.5.2
|
is
obliged to do but has not done under this Agreement within 10 Business
Days after receiving notice from the High Yield Notes Trustee requiring it
to do so.
|
-77-
|
30.6
|
Ratification
|
Each
Junior Creditor (other than the High Yield Notes Trustee) ratifies and confirms
and agrees to ratify and confirm whatever any such attorney shall do in the
exercise or purported exercise of the power of attorney granted by it in this
Clause 30. Any such attorney appointed under this Clause 30 is
released from the restriction set forth in Section 181 of the German Civil Code
(Bürgerliches
Gesetzbuch).
|
31.
|
EXPENSES
|
To the
extent not already paid under another Finance Document, each Obligor and each
Subordinated Party will, within three Business Days of demand, pay to the
Security Agent for the benefit of each Senior Secured Party and High Yield Notes
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Senior Secured Party or High Yield Notes Finance Party (as the
case may be) in connection with the enforcement or preservation of that person’s
rights against that Obligor or Subordinated Party under this
Agreement.
|
32.
|
CHANGES
TO THE PARTIES
|
|
32.1
|
Accession of Senior
Agent
|
|
32.1.1
|
The
Senior Agents may not assign any of its rights or transfer any of its
rights or obligations under this Agreement to any person unless and
until:
|
|
|
(a)
|
the
Senior Agent is permitted to, and at the same time does, assign or
transfer its related rights and obligations under the Senior Finance
Documents to that person; and
|
|
|
(b)
|
the
Security Agent executes an Accession Agreement duly completed and signed
on behalf of that person.
|
|
32.1.2
|
Each
Party (other than the Senior Agent under paragraph 32.1.1 above)
irrevocably authorises the Security Agent to execute on its behalf any
Accession Agreement which has been duly completed and signed on behalf of
that transferee.
|
|
32.2
|
Accession of Hedging
Banks
|
|
32.2.1
|
No
person entering into any Hedging Document with any Obligor will be
entitled to share in any Security created by any Security Document in
respect of any of the moneys, debts or liabilities arising under or in
connection with that Hedging Document or benefit from the representations,
warranties or undertakings of any Party under this Agreement unless and
until:
|
|
|
(a)
|
that
person and the Hedging Document are listed in Schedule 2 (The Original Hedging
Banks); or
|
|
|
(b)
|
that
person is a Hedge Bank (as defined in the Senior Facility
Agreement),
|
|
|
and,
in each case that Hedging Document is permitted by the Senior
Agreements.
|
|
32.2.2
|
That
person shall become a Hedging Bank if the Security Agent executes an
Accession Agreement duly completed and signed on behalf of that
person.
|
|
32.2.3
|
Each
Party (other the relevant proposed Hedging Bank under paragraph 32.2.1(b)
above) irrevocably authorises the Security Agent to execute on its behalf
any Accession Agreement which has been duly completed and signed on behalf
of that proposed Hedging Bank.
|
-78-
|
32.2.4
|
The
Company shall procure that no Obligor shall enter into any Hedging
Document unless and until:
|
|
|
(a)
|
that
Hedging Document and the Hedging Bank relating to that Hedging Document
are listed in Schedule 2 (The Original Hedging
Banks); or
|
|
|
(b)
|
the
proposed Hedging Bank has become a Hedging Bank in accordance with
paragraphs 32.2.1(b) and 32.2.3
above.
|
|
32.3
|
Assignments and transfers by
Hedging Banks
|
|
32.3.1
|
No
Hedging Bank may assign any of its rights or transfer any of its rights or
obligations under this Agreement to any person unless and
until:
|
|
|
(a)
|
that
Hedging Bank is permitted to, and at the same time does, assign or
transfer its related rights and obligations under the Hedging Documents to
that person; and
|
|
|
(b)
|
the
Security Agent executes an Accession Agreement duly completed and signed
on behalf of that person.
|
|
32.3.2
|
Each
Party (other than the relevant transferee under paragraph 32.3.1 above)
irrevocably authorises the Security Agent to execute on its behalf any
Accession Agreement which has been duly completed and signed on behalf of
that transferee.
|
|
32.4
|
Assignments and transfers by
Interim Facility Finance
Parties
|
|
32.4.1
|
The
Interim Facility Agent may not assign any of its rights or transfer any of
its rights or obligations under this Agreement to any person unless and
until:
|
|
|
(a)
|
the
Interim Facility Agent is permitted to, and at the same time does, assign
or transfer its related rights and obligations under the Interim Facility
Finance Documents to that person;
and
|
|
|
(b)
|
the
Security Agent executes an Accession Agreement duly completed and signed
on behalf of that person.
|
|
32.4.2
|
Each
Party (other than the Interim Facility Agent under paragraph 32.4.1 above)
irrevocably authorises the Security Agent to execute on its behalf any
Accession Agreement which has been duly completed and signed on behalf of
that transferee.
|
|
32.5
|
Accession of Second Lien Notes
Trustee
|
|
32.5.1
|
The
Company shall procure that, prior to the issue of the Second Lien Notes,
the Second Lien Notes Trustee (and, if such entity ceases to act as
trustee in relation to the Second Lien Notes for any reason, any successor
or other person which is appointed or acts as trustee under the Second
Lien Notes Indenture) shall promptly complete, sign and deliver to the
Security Agent an Accession Agreement under which the Second Lien Notes
Trustee agrees to be bound by this Agreement as if it had originally been
a Party to this Agreement in such capacity. In connection with the
foregoing, the Security Agent shall make such changes to the terms hereof
relating to the rights and duties of the Second Lien Notes Trustee and any
other Party as are required by the Second Lien Notes Trustee without the
consent of any other Party provided that such changes would not have a
material adverse effect on the other
Parties.
|
-79-
|
32.5.2
|
Each
Party (other than the relevant proposed trustee under paragraph 32.5.1
above) irrevocably authorises the Security Agent to execute on its behalf
any Accession Agreement which has been duly completed and signed on behalf
of that person.
|
|
32.6
|
Accession of Unsecured Senior
Notes Trustee
|
|
32.6.1
|
The
Company shall procure that, prior to the issue of the Unsecured Senior
Notes, the Unsecured Senior Notes Trustee (and, if such entity ceases to
act as trustee in relation to the Unsecured Senior Notes for any reason,
any successor or other person which is appointed or acts as trustee under
the Unsecured Senior Notes Indenture) shall promptly complete, sign and
deliver to the Security Agent an Accession Agreement under which the
Unsecured Senior Notes Trustee agrees to be bound by this Agreement as if
it had originally been a Party to this Agreement in such capacity. In
connection with the foregoing, the Security Agent shall make such changes
to the terms hereof relating to the rights and duties of the Unsecured
Senior Notes Trustee and any other Party as are required by the Unsecured
Senior Notes Trustee without the consent of any other Party provided that
such changes would not have a material adverse effect on the other
Parties.
|
|
32.6.2
|
Each
Party (other than the relevant proposed trustee under paragraph 32.6.1
above) irrevocably authorises the Security Agent to execute on its behalf
any Accession Agreement which has been duly completed and signed on behalf
of that person.
|
|
32.7
|
Accession of Arco Notes
Trustee
|
|
32.7.1
|
The
Company shall procure that, if the Arco Notes Trustee ceases to act as
trustee in relation to the Arco Notes for any reason, any successor or
other person which is appointed or acts as trustee under the Arco Notes
Indenture shall promptly complete, sign and deliver to the Security Agent
an Accession Agreement under which the Arco Notes Trustee agrees to be
bound by this Agreement as if it had originally been a Party to this
Agreement in such capacity. In connection with the foregoing, the Security
Agent shall make such changes to the terms hereof relating to the rights
and duties of the Arco Notes Trustee and any other Party as are required
by the Arco Notes Trustee without the consent of any other Party provided
that such changes would not have a material adverse effect on the other
Parties.
|
|
32.7.2
|
Each
Party (other than the relevant proposed trustee under paragraph 32.7.1
above) irrevocably authorises the Security Agent to execute on its behalf
any Accession Agreement which has been duly completed and signed on behalf
of that person.
|
|
32.8
|
Accession of Equistar Notes
Trustee
|
|
32.8.1
|
The
Company shall procure that, if the Equistar Notes Trustee
ceases to act as trustee in relation to the Equistar Notes for any reason,
any successor or other person which is appointed or acts as trustee under
the Equistar Notes Indenture shall promptly complete, sign and deliver to
the Security Agent an Accession Agreement under which the Equistar Notes
Trustee agrees to be bound by this Agreement as if it had originally been
a Party to this Agreement in such capacity. In connection with the
foregoing, the Security Agent shall make such changes to the terms hereof
relating to the rights and duties of the Equistar Notes Trustee and any
other Party as are required by the Equistar Notes Trustee without the
consent of any other Party provided that such changes would not have a
material adverse effect on the other
Parties.
|
|
32.6.2
|
Each
Party (other than the relevant proposed trustee under paragraph 32.8.1
above) irrevocably authorises the Security Agent to execute on its behalf
any Accession Agreement which has been duly completed and signed on behalf
of that person.
|
-80-
|
32.9
|
Accession of High Yield Notes
Trustee
|
|
32.9.1
|
The
Company shall procure that, if the High Yield Note Trustee ceases to act
as trustee in relation to the High Yield Notes for any reason, any
successor or other person which is appointed or acts as trustee under the
High Yield Notes Indenture shall promptly complete, sign and deliver to
the Security Agent an Accession Agreement under which the High Yield Notes
Trustee agrees to be bound by this Agreement as if it had originally been
a Party to this Agreement in such capacity. In connection with the
foregoing, the Security Agent shall make such changes to the terms hereof
relating to the rights and duties of the High Yield Notes Trustee and any
other Party as are required by the High Yield Notes Trustee without the
consent of any other Party provided that such changes would not have a
material adverse effect on the other
Parties.
|
|
32.9.2
|
Each
Party (other than the relevant proposed trustee under paragraph 32.9.1
above) irrevocably authorises the Security Agent to execute on its behalf
any Accession Agreement which has been duly completed and signed on behalf
of that person.
|
|
32.9.3
|
The
High Yield Notes Trustee (on behalf of the High Yield Noteholders), by its
execution of an Accession Agreement, acknowledges and agrees
that:
|
|
|
(a)
|
that
to the extent and in the manner set out in the High Yield Notes Indenture
under which the High Yield Notes are issued, the payment of all Senior
Subordinated Guarantee Debt (as such term is defined in the High Yield
Notes Indenture) is expressly made subordinate to and subject in right of
payment to the prior payment in full in cash of all Senior Debt, ABL Debt
and Hedging Debt;
|
|
|
(b)
|
the
Senior Debt and Hedging Debt each qualify as “Guarantor Senior Debt”
for the purposes of and as such term is defined in the High Yield Notes
Indenture;
|
|
|
(c)
|
the
Senior Parties are entitled to rely on and enforce the subordination
provisions contained in the High Yield Notes Indenture and the provisions
in the High Yield Notes Indenture restricting the circumstances in which a
demand may be made under the Senior Subordinated Guarantee (as such term
is defined in the High Yield Notes Indenture) or the High Yield Notes
Security may be enforced; and
|
|
|
(d)
|
it
accepts any Accession Agreement and the accession by the relevant parties
to this Agreement in the capacity described therein. For the avoidance of
doubt, the High Yield Notes Trustee hereby waives any right to approve, or
of objection to, the accession or identity of such persons and confirms
that it hereby waives any obligation on the part of a party to procure the
High Yield Notes Trustee’s counter-signature or acceptance of any such
Accession Agreement.
|
|
32.10
|
Assignment and transfers by
Investors
|
|
32.10.1
|
No
Investor may assign any of its rights or transfer any of its rights or
obligations under this Agreement to any person unless and
until:
|
|
|
(a)
|
that
Investor is permitted to, and at the same time does, assign or transfer
its related rights and obligations under the Investor Documents to that
person; and
|
|
|
(b)
|
the
Security Agent executes an Accession Agreement duly completed and signed
on behalf of that person.
|
|
32.10.2
|
Each
Party (other than the relevant transferee under paragraph 32.10.1 above)
irrevocably authorises the Security Agent to execute on its behalf any
Accession Agreement which has been duly completed and signed on behalf of
that transferee.
|
-81-
|
32.11
|
Assignment and transfer by
Obligors
|
No
Obligor may assign any of its rights or transfer any of its rights or
obligations under this Agreement.
|
32.12
|
Accession of additional
Obligors
|
|
32.12.1
|
The
Company shall procure that any member of the Group which it requests to
become an Additional Guarantor (as defined in the Interim Facility
Agreement) or a Borrower or a Guarantor (as defined in the Senior Facility
Agreement) shall deliver to the Security Agent a duly completed and signed
Accession Agreement on or before becoming such a Borrower, Guarantor or
Additional Guarantor under the Senior Facility Agreement or the Interim
Facility Agreement, as applicable.
|
|
32.12.2
|
Each
Party (other than the relevant proposed Borrower, Guarantor or Additional
Guarantor referred to under paragraph 32.12.1 above) irrevocably
authorises the Security Agent to execute on its behalf any Accession
Agreement which has been duly completed and signed on behalf of that
proposed Borrower, Guarantor or Additional
Guarantor.
|
|
32.13
|
Assignment and transfer by High
Yield Notes Guarantors
|
Until the
Senior Discharge Date, no High Yield Notes Guarantor may assign any of its
rights or transfer any of its rights or obligations under this Agreement (other
than in connection with a transaction in which the applicable High Yield Notes
Guarantee is assigned or transferred to or otherwise assumed by another person
in a transaction not prohibited by the High Yield Notes Indenture or the Senior
Agreements (and having regard to the terms of the High Yield Notes Major
Terms)).
|
32.14
|
Accession of additional High
Yield Notes Guarantors
|
|
32.14.1
|
Until
the Senior Discharge Date, the Company shall procure that any new High
Yield Notes Guarantor shall deliver to the Security Agent a duly completed
and signed Accession Agreement on or before becoming a new High Yield
Notes Guarantor.
|
|
32.14.2
|
Each
Party (other than the new High Yield Notes Guarantors under paragraph
32.14.1 above) irrevocably authorises the Security Agent to execute on its
behalf any Accession Agreement which has been duly completed and signed on
behalf of that proposed new High Yield Notes
Guarantor.
|
|
32.15
|
Assignments and transfers by
Intercompany Lenders and Intercompany
Borrowers
|
|
32.15.1
|
No
Intercompany Lender or Intercompany Borrower may assign any of its rights
or transfer any of its rights or obligations under this Agreement to any
person unless and until the Security Agent executes an Accession Agreement
duly completed and signed on behalf of that
person.
|
|
32.15.2
|
Each
Party (other than the relevant transferee under paragraph 32.15.1 above)
irrevocably authorises the Security Agent to execute on its behalf any
Accession Agreement which has been duly completed and signed on behalf of
that transferee.
|
|
32.16
|
Accession of Intercompany
Borrowers and Intercompany
Lenders
|
|
32.16.1
|
The
Company shall procure that any member of the Group (other than Basell
Sales & Marketing B.V., Basell Polyolefins Company B.V.B.A., Basell
Capital Corporation, LyondellBasell Receivables I, LLC, any other
Securitization Entity (as defined in the Senior Facility Agreement) which
(i) is an Obligor and becomes a borrower from any member of the Group or
(ii) becomes a creditor of an Obligor, in each case, in respect of
Financial Indebtedness, in either case exceeding €10,000,000 (or its
equivalent in another currency or currencies), is a party to, or accedes
to this Agreement as an Intercompany Borrower or, as the case may be, an
Intercompany Lender by delivering to the Security Agent a duly completed
and signed Accession Agreement on or before becoming an Intercompany
Borrower or, as the case may be, an Intercompany Lender; provided,
however, that no such Obligor or creditor of an Obligor (i) which is a
Subsidiary of LyondellBasell Finance Company and (ii) is not a Loan Party
(as defined in the Senior Facility Agreement) shall be obligated to accede
to this Agreement prior to 45 days after the date
hereof.
|
-82-
|
32.16.2
|
That
member of the Group shall become an Intercompany Borrower or an
Intercompany Lender if the Security Agent executes that Accession
Agreement.
|
|
32.16.3
|
Each
Party (other than the relevant proposed Intercompany Borrower or
Intercompany Lender under paragraph 32.16.1 above) irrevocably authorises
the Security Agent to execute on its behalf any Accession Agreement which
has been duly completed and signed on behalf of that proposed Intercompany
Borrower or Intercompany Lender.
|
|
32.16.4
|
The
Security Agent shall promptly execute any Accession Agreement which has
been duly completed and signed on behalf of the proposed Intercompany
Borrower or Intercompany Lender.
|
|
32.17
|
Notification by Security
Agent
|
The
Security Agent shall notify the other Parties promptly of the receipt and
execution by it on their behalf of any Accession Agreement.
|
33.
|
NOTICES
|
|
33.1
|
Communications in
writing
|
Any
communication or document to be made or delivered under or in connection with
this Agreement shall be made in writing and, unless otherwise stated, may be
made or delivered by fax or letter.
|
33.2
|
Addresses
|
The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with this Agreement
is:
|
33.2.1
|
in
the case of the Company, any other Original Obligor, any Senior Finance
Party or any Interim Facility Finance Party, that identified in accordance
with the terms of the Senior Facility Agreement or, as the case may be,
Second Lien Notes Trustee, Unsecured Senior Notes Trustee, the Interim
Facility Agreement; and
|
|
33.2.2
|
in
the case of each Hedging Bank, Subordinated Party or the High Yield Notes
Trustee, that notified in writing to the Security Agent on or prior to the
date on which it becomes a Party,
|
or any
substitute address, fax number or department or officer as the Party may notify
to the Security Agent (or the Security Agent may notify to the other Parties, if
a change is made by the Security Agent) by not less than five Business Days’
notice.
|
33.3
|
Delivery
|
|
33.3.1
|
Any
communication or document made or delivered by one person to another under
or in connection with this Agreement will only be
effective:
|
|
|
(a)
|
if
by way of fax, when received in legible form;
or
|
-83-
|
|
(b)
|
if
by way of letter, when it has been left at the relevant address or five
Business Days after being deposited in the post postage prepaid in an
envelope addressed to it at that
address,
|
and, if a
particular department or officer is specified as part of its address details
provided under Clause 33.2 (Addresses), if addressed to
that department or officer provided that in the case of any communication or
document given to a Trustee any such notice will be deemed given when it is
actually received by a Responsible Officer of the such Trustee.
|
33.3.2
|
Any
communication or document to be made or delivered to the Security Agent
will be effective only when actually received by the Security Agent and
then only if it is expressly marked for the attention of the department or
officer identified with the Security Agent’s signature below (or any
substitute department or officer as the Security Agent shall specify for
this purpose) provided that in the case of any communication to a Trustee
any such communication will only be effective when it is actually received
by a Responsible Officer of such
Trustee.
|
|
33.4
|
Notification of address and fax
number
|
Promptly
upon receipt of notification of an address and fax number or change of address
or fax number pursuant to Clause 33.2 (Addresses) or changing its
own address or fax number, the Security Agent shall notify the other
Parties.
|
33.5
|
English
language
|
|
33.5.1
|
Any
notice given under or in connection with this Agreement must be in
English.
|
|
33.5.2
|
All
other documents provided under or in connection with this Agreement must
be:
|
|
|
(a)
|
in
English; or
|
|
|
(b)
|
if
not in English, and if so required by the Security Agent after an Event of
Default (as defined in any Finance Document), accompanied by an English
translation acceptable to the Security Agent (acting reasonably) and, in
this case, the English translation will prevail unless the document is a
constitutional, statutory or other official document or a Security
Document.
|
|
34.
|
PARTIAL
INVALIDITY
|
If, at
any time, any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
|
35.
|
REMEDIES
AND WAIVERS
|
No
failure to exercise, nor any delay in exercising, on the part of any Senior
Secured Party, Unsecured Senior Notes Finance Party, High Yield Notes Finance
Party or Subordinated Party any right or remedy under this Agreement shall
operate as a waiver, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise or the exercise of any other right
or remedy. The rights and remedies provided in this Agreement are cumulative and
not exclusive of any rights or remedies provided by law.
|
36.
|
COUNTERPARTS
|
This
Agreement may be executed in any number of counterparts, and this has the same
effect as if the signatures on the counterparts were on a single copy of this
Agreement.
-84-
|
37.
|
AMENDMENTS
|
|
37.1
|
Amendments
|
|
37.1.1
|
This
Agreement may be amended by the Obligors and the Security Agent without
the consent of any other Party to cure defects, resolve ambiguities or
reflect changes, in each case, of a minor, technical or administrative
nature.
|
|
37.1.2
|
This
Agreement may also be amended by the Security Agent and a Trustee without
the consent of any other Party, in the event that a Notes Indenture for
which such Trustee acts or Trustee is required to be qualified under the
US Trust Indenture Act of 1939, as amended, as a result of the exercise of
registration rights, but only to the minimum extent required in order for
that Notes Indenture to be so
qualified.
|
|
37.2
|
Amendments affecting only
certain Parties
|
Each
Party acknowledges and agrees that to the extent than an amendment to this
Agreement only affects the rights and obligations of one or more Parties or
class of Parties to this Agreement, and could not reasonably be expected to be
adverse to the interests of the other Parties or a class of Parties, only the
Parties or class of Parties affected by such amendment need to agree to the
amendments.
|
37.3
|
Refinancing
|
Any
Senior Debt or ABL Debt may, to the extent permitted under the other Senior
Agreements, be refinanced, replaced, increased or otherwise restructured (a
“Refinancing”) in whole
or in part on terms that do not result in a breach of any term of any agreement
in respect of Junior Debt and any obligations incurred by the Group on such
Refinancing in respect of such Senior Debt will, to the extent designated by the
Company, rank senior to the Junior Debt and otherwise benefit from the
provisions of this Agreement on, mutatis mutandis, the terms set out herein (and
such obligations will constitute Senior Debt).
|
37.4
|
Replacement intercreditor
agreement
|
Subject
to being indemnified and/or secured to its satisfaction against any fees, costs,
expenses or other liabilities, which it may in doing so incur, the High Yield
Notes Trustee (for itself and as trustee for the High Yield Noteholders), the
Junior Creditors and the Obligors shall enter into a replacement intercreditor
agreement with the Senior Parties and the Hedging Banks on substantially the
same terms and conditions as this Agreement (mutatis mutandis) on the novation,
supplement, Refinancing or replacement of all or any part of the Senior Debt and
do all other acts and things (including, without limitation, the execution of
assignments or other instruments) as are reasonably required and practicable to
give effect to the purposes of this Agreement (in the case of the High Yield
Notes Trustee only, to the extent that such other acts and things are not
prejudicial to the rights of the High Yield Notes Trustee under this Agreement
or the High Yield Notes Indenture).
|
37.5
|
Trustees
|
Notwithstanding
anything to the contrary in this Agreement, any amendment or waiver of this
Agreement which is prejudicial to the rights and obligations of a Trustee in its
personal capacity as such may not be effected without its prior
consent.
|
38.
|
GOVERNING
LAW
|
This
Agreement is governed by New York law.
-85-
|
39.
|
ENFORCEMENT
|
|
39.1
|
Jurisdiction
|
|
|
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW
YORK.
|
|
|
ANY
LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING,
MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW YORK
CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION
OF THOSE COURTS. EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING
OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR OTHER DOCUMENT RELATED
THERETO.
|
|
39.2
|
Service of
process
|
Without
prejudice to any other mode of service allowed under any relevant law, each
Obligor, each Intercompany Borrower and each Subordinated Party:
|
39.2.1
|
irrevocably
appoints LyondellBasell Finance Company as its agent for service of
process in relation to any proceedings before New York or Federal courts
in connection with any Finance Document;
and
|
|
39.2.2
|
agrees
that failure by a process agent to notify the relevant Obligor,
Intercompany Borrower or Subordinated Party of the process will not
invalidate the proceedings
concerned.
|
|
39.3
|
Waiver of trial by
jury
|
Each
Party waives any right it may have to a jury trial of any claim or cause of
action in connection with any Finance Document or any transaction contemplated
by any Finance Document. In the event of litigation, this Agreement may be filed
as a written consent to trial by court.
-86-
SCHEDULE
1
THE
ORIGINAL OBLIGORS
|
Name
of Original Borrower
|
Jurisdiction
of incorporation
|
Registration
number (or equivalent, if any)
|
|
Basell
AF S.C.A.
|
Luxembourg
|
B
107545
|
|
BIL
Acquisition Holdings Limited (to be merged with and into Lyondell Chemical
Company)
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Basell
Holdings B.V.
|
The
Netherlands
|
24344658
|
|
Basell
Finance Company B.V.
|
The
Netherlands
|
34090540
|
|
Basell
Germany Xxxxxxxx XxxX
|
Xxxxxxx
|
XXX
00000
|
|
Name
of Original Guarantor
|
Jurisdiction
of incorporation
|
Registration
number (or equivalent, if any)
|
|
Xxxx
Acquisition (US) LLC
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Basell
Finance USA Inc.
|
New
York, United States
|
N/A
|
|
Basell
North America Inc.
|
Delaware,
United States
|
2015017
|
|
Basell
USA Inc.
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
LyondellBasell
Finance Company
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
LBI
Acquisition LLC
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
LBIH
LLC
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Basell
Holdings B.V.
|
The
Netherlands
|
24344658
|
|
Basell
International Holdings B.V.
|
The
Netherlands
|
34090793
|
|
Basell
Benelux B.V.
|
The
Netherlands
|
20078583
|
|
Basell
Europe Holdings B.V.
|
The
Netherlands
|
34090809
|
|
Basell
Finance Company B.V.
|
The
Netherlands
|
34090540
|
|
Basell
Finance & Trading Company B.V.
|
The
Netherlands
|
34243687
|
|
Basell
Sales and Marketing Company B.V.
|
The
Netherlands
|
3425062
|
|
LyondellBasell
Netherlands Holdings B.V.
|
The
Netherlands
|
08163670
|
|
Basell
AF S.C.A.
|
Luxembourg
|
B
107545
|
|
Basell
Funding S.à.x.x.
|
Luxembourg
|
B
107544
|
|
Basell
Polyolefine GmbH
|
Germany
|
HRB
45129
|
|
Basell
Bayreuth Chemie GmbH
|
Germany
|
HRB
55766
|
|
Basell
Germany Holdings GmbH
|
Germany
|
HRB
44982
|
|
Basell
Polyolefins UK Ltd.
|
England
|
02811230
|
|
Basell
UK Holdings Ltd.
|
England
|
03053549
|
|
Basell
Asia Pacific Limited
|
Hong
Kong
|
0167684
|
|
Basell
Canada Inc
|
Canada
|
562607
|
|
Lyondell
Refining I LLC
|
Delaware,
United States
|
3607692
|
|
Lyondell
Chemical Company
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
LyondellPOTechLP,
Inc.
|
Delaware,
Xxxxxx Xxxxxx
|
0000000
|
|
Lyondell
LP3 Partners, LP
|
Delaware,
United States
|
3607688
|
|
Lyondell
Petrochemical L.P. Inc.
|
Delaware,
United States
|
2799835
|
|
Houston
Refining LP
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Equistar
Chemicals, LP
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Lyondell
Europe Holdings Inc.
|
Delaware,
United States
|
4361811
|
|
Lyondell
Chemical Products Europe LLC
|
Delaware,
United States
|
0944226
|
|
Lyondell
Chimie France LLC
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Millennium
Specialty Chemicals Inc.
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Millennium
Petrochemicals Inc.
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000-0
|
|
Xxxxxxxx
Chemical Technology, L.P.
|
Delaware,
United States
|
2282031
|
|
Lyondell
Chemical Technology 1 Inc.
|
Delaware,
United States
|
4085628
|
|
Lyondell
Refining Company LLC
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
-00-
|
Xxxxxxxx
Xxxxxxx Refinery Inc.
|
Delaware,
United States
|
4197451
|
|
Lyondell
Chemical Nederland, Ltd.
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Lyondell-Equistar
Holdings Partners
|
Delaware,
United States
|
3396193
|
|
Lyondell
(Pelican) Petrochemical L.P.1, Inc.
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Lyondell
LP4 Inc.
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Xxxxxxxx
XX0 XX, LLC
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Millennium
Petrochemicals Partners, LP
|
Delaware,
United States
|
4085626
|
|
Millennium
US Op Co, LLC
|
Delaware,
United States
|
3401274
|
|
Millennium
America Inc.
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Xxxxxxxxxx
Xxxxxxx Holdings Inc.
|
Delaware,
United States
|
0903155
|
|
Millennium
Worldwide Holdings I Inc.
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Millennium
Chemicals Inc.
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
|
Millennium
Petrochemicals GP LLC
|
Delaware,
United States
|
2803695
|
|
Lyondell
Chemical Technology Management, Inc.
|
Xxxxxxxx,
Xxxxxx Xxxxxx
|
0000000
|
-88-
SCHEDULE
2
THE
ORIGINAL HEDGING BANKS
Existing
Xxxxxx
|
(a)
|
Cross
Currency Swaps
|
Contracting
parties: Basell Holdings BV and ABN AMRO Bank NV
Principal: USD
175,000,000 and EUR 142,692,926.83
Quarterly
interest payments
Tenor: 5
year (until August 15th
2010)
Contracting
parties: Basell Holdings BV and ING Bank NV
Principal: USD
109,000,000 and EUR 89,024,390.24
Quarterly
interest payments
Tenor: 10
year (until August 15th
2015)
Contracting
parties: Basell Holdings BV and ING Bank NV
Principal: USD
80,000,000 and EUR 65,040,650.41
Quarterly
interest payments
Tenor: 5
year (until August 15th
2010)
|
(b)
|
Total
Return Swap
|
Contracting
parties: Basell Finance Company BV and ABN AMRO Bank NV
Principal: adjustable
but currently 1,200,000 shares Royal Dutch Shell A Plc and 140,000
shares BASF AG
Semi
annual settlements
Tenor: 3
year (until October 4, 2008)(e) EU Allowance/EU Credit
Swaps
Contracting
parties: Basell Finance & Trading Company BV and ABN AMRO Bank
NV
Principal: EU
Allowance 73,000, EU Credit 100,000
Settlement: December
2008
Contracting
parties: Basell Finance & Trading Company BV and ABN AMRO Bank
NV
Principal: EU
Allowance 214,937, EU Credit 250,000
Settlement: December
2008
-89-
SCHEDULE
3
THE
ORIGINAL INVESTORS
|
Name
of Original Investor
|
Jurisdiction
of incorporation
|
Registration
number (or equivalent, if any)
|
|
BI
S.à x.x.
|
Luxembourg
|
B
106994
|
|
AI
Petrochemicals LLC
|
Delaware,
USA
|
39366041
|
-90-
SCHEDULE
4
THE
ORIGINAL INTERCOMPANY LENDERS AND BORROWERS
|
Name
of Original Intercompany Lender
|
|
Basell
Holdings B.V.
|
|
Basell
Finance Company B.V.
|
|
Basell
AF S.C.A. (to be renamed LyondellBasell Industries AF
S.C.A)
|
|
Basell Polyolefine
GmbH
|
|
Basell
Bayreuth Chemie GmbH
|
|
Basell
Germany Holdings GmbH
|
|
Basell
Polyolefins UK Limited
|
|
Basell
UK Holdings Limited
|
|
Basell
Canada Inc.
|
|
Basell
Asia Pacific Ltd
|
|
Basell
International Holdings B.V.
|
|
Basell
Benelux B.V.
|
|
Basell
Europe Holdings B.V.
|
|
Basell
Finance & Trading Company B.V.
|
|
Basell
Sales & Marketing Company B.V.
|
|
Basell
Funding S.à x.x.
|
|
Xxxx
Acquisition (US) LLC
|
|
Basell
Finance USA Inc.
|
|
Basell
North America Inc.
|
|
Basell
USA Inc
|
|
LyondellBasell
Finance Company
|
|
LyondellBasell
Netherlands Holdings B.V.
|
|
Basell Poliolefine Italia
s.r.l.
|
|
LBI
Acquisition LLC
|
|
LBIH
LLC
|
|
BIL
Acquisition Holdings Limited (to be merged with and into Lyondell Chemical
Company)
|
|
BasellTech
USA Inc.
|
|
Equistar
Chemicals, LP
|
|
Houston
Refining LP
|
|
Lyondell
Asia Pacific, Ltd.
|
|
Lyondell
Chemical Company
|
|
Lyondell
Chemical Delaware Company
|
|
Lyondell
Chemical Europe, Inc.
|
|
Lyondell
Chemical Nederland Ltd.
|
|
Lyondell
Chemical Technology, L.P.
|
|
Lyondell Chemie
(POSM) B.V.
|
|
Lyondell Chemie
International, B.V.
|
|
Lyondell Chemie Nederland,
B.V.
|
|
Lyondell
Chimie France LLC
|
|
Lyondell
Chimie France SAS
|
|
Lyondell Chimie TDI,
SCA
|
-91-
|
Lyondell
Europe Holdings Inc.
|
|
Lyondell
Greater China, Ltd.
|
|
Lyondell
Houston Refinery, Inc.
|
|
Lyondell
LP3 Partners, LP
|
|
Lyondell
LP4 Inc.
|
|
Lyondell
(Pelican) Petrochemical L.P. 1, Inc.
|
|
Lyondell
Petrochemicals LP, Inc.
|
|
Lyondell
PO-11 CV
|
|
Lyondell
Refining Company LLC
|
|
Lyondell
Refining I LLC
|
|
MHC
Inc.
|
|
Millennium
America Holdings Inc.
|
|
Millennium
America Inc.
|
|
Millennium
Chemicals Inc.
|
|
Millennium
Holdings LLC
|
|
Millennium
Petrochemicals GP LLC
|
|
Millennium
Petrochemicals Inc.
|
|
Millennium
Petrochemicals Inc. - Non Acetyls
|
|
Millennium
Petrochemicals LP LLC
|
|
Millennium
Petrochemicals Partners LP
|
|
Millennium
Specialty Chemicals
|
|
Millennium
Specialty Chemicals Inc. - St. Helena
|
|
Millennium
US Op Co LLC
|
|
Millennium
Worldwide Holdings I Inc.
|
|
PH
Burbank Holdings, Inc.
|
|
PO
Offtake, LP
|
|
POSM
Delaware, Inc.
|
|
Suburban
Propane G.P. Inc.
|
|
Name
of Original Intercompany Borrower
|
|
Basell
Holdings B.V.
|
|
Basell
Finance Company B.V.
|
|
Basell
AF S.C.A. (to be renamed LyondellBasell Industries AF
S.C.A)
|
|
Basell Polyolefine
GmbH
|
|
Basell
Bayreuth Chemie GmbH
|
|
Basell
Germany Holdings GmbH
|
|
Basell
Polyolefins UK Limited
|
|
Basell
UK Holdings Limited
|
|
Basell
Canada Inc.
|
|
Basell
Asia Pacific Ltd
|
|
Basell
International Holdings B.V.
|
|
Basell
Benelux B.V.
|
|
Basell
Europe Holdings B.V.
|
|
Basell
Finance & Trading Company B.V.
|
|
Basell
Sales & Marketing Company B.V.
|
|
Basell
Funding S.à x.x.
|
-92-
|
Xxxx
Acquisition (US) LLC
|
|
Basell
Finance USA Inc.
|
|
Basell
North America Inc.
|
|
Basell
USA Inc
|
|
LyondellBasell
Finance Company
|
|
LyondellBasell
Netherlands Holdings B.V.
|
|
Basell Poliolefine Italia s.r.l.
|
|
LBI
Acquisition LLC
|
|
LBIH
LLC
|
|
BIL
Acquisition Holdings Limited (to be merged with and into Lyondell Chemical
Company)
|
|
BasellTech
USA Inc.
|
|
Equistar
Chemicals, LP
|
|
Houston
Refining LP
|
|
Lyondell
Asia Pacific, Ltd.
|
|
Lyondell
Chemical Company
|
|
Lyondell
Chemical Delaware Company
|
|
Lyondell
Chemical Europe, Inc.
|
|
Lyondell
Chemical Nederland Ltd.
|
|
Lyondell
Chemical Technology, L.P.
|
|
Lyondell
Chemie (POSM) B.V.
|
|
Lyondell
Chemie International, B.V.
|
|
Lyondell
Chemie Nederland, B.V.
|
|
Lyondell
Chimie France LLC
|
|
Lyondell
Chimie France SAS
|
|
Lyondell
Chimie TDI, SCA
|
|
Lyondell
Europe Holdings Inc.
|
|
Lyondell
Greater China, Ltd.
|
|
Lyondell
Houston Refinery, Inc.
|
|
Lyondell
LP3 Partners, LP
|
|
Lyondell
LP4 Inc.
|
|
Lyondell
(Pelican) Petrochemical L.P. 1, Inc.
|
|
Lyondell
Petrochemicals LP, Inc.
|
|
Lyondell
PO-11 CV
|
|
Lyondell
Refining Company LLC
|
|
Lyondell
Refining I LLC
|
|
MHC
Inc.
|
|
Millennium
America Holdings Inc.
|
|
Millennium
America Inc.
|
|
Millennium
Chemicals Inc.
|
|
Millennium
Holdings LLC
|
|
Millennium
Petrochemicals GP LLC
|
|
Millennium
Petrochemicals Inc.
|
|
Millennium
Petrochemicals Inc. - Non Acetyls
|
|
Millennium
Petrochemicals LP LLC
|
-93-
|
Millennium
Petrochemicals Partners LP
|
|
Millennium
Specialty Chemicals
|
|
Millennium
Specialty Chemicals Inc. - St. Helena
|
|
Millennium
US Op Co LLC
|
|
Millennium
Worldwide Holdings I Inc.
|
|
PH
Burbank Holdings, Inc.
|
|
PO
Offtake, LP
|
|
POSM
Delaware, Inc.
|
|
Suburban
Propane G.P. Inc.
|
-94-
SCHEDULE
5
FORM
OF ACCESSION AGREEMENT
|
To:
|
[ ]
as Security Agent
|
|
From:
|
[Proposed Senior Agent/ABL
Agent/Hedging Bank/Interim Facility Agent /holder of High Yield Notes
On-Loan/Second Lien Notes Trustee/Unsecured Senior Notes Trustee/High
Yield Notes Trustee/Investor/Intercompany Lender/Intercompany
Borrower/Additional Guarantor/High Yield Notes
Guarantor]
|
Dated:
Dear
Sirs
[Company]
- Intercreditor Agreement
dated
December 20 2007 (the “Agreement”)
|
1.
|
We
refer to the Agreement. This is an Accession Agreement. Terms defined in
the Agreement have the same meaning in this Accession Agreement unless
given a different meaning in this Accession
Agreement.
|
|
2.
|
[Proposed Senior Agent/ABL
Agent /Hedging Bank/Interim Facility Agent/holder of High Yield Notes
On-Loan/Second Lien Notes Trustee/Unsecured Senior Notes Trustee/High
Yield Notes Trustee/Investor/Intercompany Lender/Intercompany
Borrower//Additional Guarantor/High Yield Notes Guarantor] agrees
to be bound by the terms of the Agreement [and, in the case of a Hedging
Bank, the Senior Facility Agreement] as the Senior Agent/a Hedging
Bank/Arco Notes Trustee/Equistar Notes Trustee/the Interim Facility
Agent/the holder of High Yield Notes On-Loan/the Second Lien Notes
Trustee/the Unsecured Senior Notes Trustee/the High Yield Notes
Trustee/Investor/the Intercompany Lender/Intercompany Borrower/Additional
Guarantor/High Yield Notes
Guarantor].
|
|
3.
|
[Without
limiting or affecting Clause 24.6 (Parallel Debt), in any
circumstances in which the Security Agent is not acting pursuant to the
Parallel Debt under Clause 24.6 (Parallel Debt), for the
purposes of Italian law, the Security Agent shall be deemed to be acting
in its capacity as agent (mandatario con
rappresentanza) in its own name and on its behalf and in the name
and on behalf of [Proposed Senior Finance
Party/Proposed Hedging Bank] as a [Senior Finance Party/Hedging
Bank], which by executing this Accession Agreement for the purposes
hereof grants to the Security Agent any necessary power of attorney to
execute the Security Documents in the name and on behalf of [Proposed Senior Finance
Party/Proposed Hedging Bank] as a [Senior Finance Party/Hedging
Bank] and to exercise any and all rights and powers of [Proposed Senior Finance
Party/Proposed Hedging Bank] as a [Senior Finance Party/Hedging
Bank] under the Security Documents including, but not limited to,
the power to bring, prosecute, enforce, defend and abandon actions, suits
and proceedings in relation to the Security Documents.] [To be
discussed with A&O.]
|
|
4.
|
[Proposed Additional
Guarantor/Intercompany Borrower/Intercompany Lender] is a company
duly incorporated under the law of [name of relevant
jurisdiction].
|
[The
amount which may be paid by [Proposed Additional
Guarantor/Intercompany Borrower/Intercompany Lender] is subject to the
following limitations:
|
|
(a)
|
if
[Proposed Additional
Guarantor/Intercompany Borrower/Intercompany Lender] is
incorporated in
[ ];
|
|
|
(b)
|
if:
|
|
|
(i)
|
[Proposed Additional
Guarantor/Intercompany Borrower/Intercompany Lender] is
incorporated in any other jurisdiction;
or
|
-95-
|
|
(ii)
|
[Proposed Additional
Guarantor/Intercompany Borrower/Intercompany Lender] is
incorporated in
[ ]
[or
[ ]].
|
|
5.
|
[Proposed Senior Agent /Hedging
Bank’s/Interim Facility Agent/holder of High Yield Notes On-Loan’s/Second
Lien Notes Trustee’s/Unsecured Senior Notes Trustee’s High Yield Notes
Trustee’s/Investor’s/ Intercompany Lender’s/Intercompany
Borrower’s/Additional Guarantor’s/High Yield Notes Guarantor’s]
administrative details are as
follows:
|
Address:
Fax
No:
Attention:
|
6.
|
[Details
of the Hedging Document are as
follows:
|
Date:
Parties: [Proposed Hedging Bank] and
[the Company]
Terms: [Insert brief summary of type of
contract].]
|
7.
|
This
Accession Agreement is governed by New York
law.
|
[Proposed Senior Agent /Hedging
Bank/Interim Facility Agent/ holder of High Yield Notes On-Loan/Second Lien
Notes Trustee/Unsecured Senior Notes Trustee/High Yield Notes
Trustee/Investor/Intercompany Lender/Intercompany Borrower/Additional
Guarantor/High Yield Notes Guarantor]
|
8.
|
[To
be included in Accession Agreement for Hedging Banks and the Second Lien
Notes Trustee only]
|
This
Clause 8 is supplemental to a German security trust agreement (the “Security
Trust Agreement”) dated [●] between the Security Agent, the Beneficiaries (as
defined therein) and certain Obligors as Security Grantors.
The
[Hedging Bank/Second Lien Notes Trustee] has taken note of the Security Trust
Agreement and has especially taken note of the powers granted to the Security
Agent therein.
The
[Hedging Bank/Second Lien Notes Trustee] ratifies (genehmigt) the acceptance of
accessory security entered into with a view to securing the [Hedging Debt/Second
Lien Notes Debt], especially pledges, by the Security Agent as representative
without power of attorney (Vertreter ohne
Vertretungsvollmacht) on behalf of the [Hedging Bank/Second Lien Notes
Trustee]. The [Hedging Bank/Second Lien Notes Trustee] thereby
becomes a party to any German pledge agreement, being a [Loan Document], signed
by the Security Agent as representative without power of attorney.
The
[Hedging Banks/Second Lien Notes Trustee] and the Security Agent (for itself and
on behalf of the other Senior Secured Parties) hereby agree that the [Hedging
Bank/Second Lien Notes Trustee] accedes to the German Security Trust Agreement
and that with effect on and form the date hereof the [Hedging Bank/Second Lien
Notes Trustee] will be bound by the Security Trust Agreement as Beneficiary as
if it had been originally a party to the Security Trust Agreement in that
capacity. The other parties to the Security Trust Agreement granted
their anticipated consent to such accession in the Security Trust
Agreement.
This Part
8 shall be governed by and shall be construed in accordance with German
law.]
By:
This
Accession Agreement is accepted by the Security Agent.
|
[Security
Agent]
|
|
|
By:
|
Date:
|
-96-
SCHEDULE
6
EXISTING
LYONDELL DEBT SECURITY
|
A.
|
Arco
Notes Security Documents
|
U.S.
Borrower Security Agreement, dated as of December 20, 2007 between Lyondell
Chemical Company (formerly known as BIL Acquisition Holdings Limited) and
Citibank, N.A., as Collateral Agent.
Fee Deed
of Trust by Lyondell Chemical Company, as Grantor, to a trustee described
therein, for the benefit of Citibank, N.A., as Beneficiary, relating to property
located at 00000 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000 (Xxxxxx Road
PG Plant).
Fee Deed
of Trust by Lyondell Chemical Company, as Grantor, to a trustee described
therein, for the benefit of Citibank, N.A., as Beneficiary, relating to property
located at Channelview Chemical Complex (South) 0000 Xxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxx Xxxxxx, Xxxxx 00000 (Derivatives-MTBE, BDO, Polyols Plant).
Any other
Security Document which, under the terms of the Arco Notes Indenture, is
required to provide for security in favour of the Arco Notes Finance
Documents.
|
B.
|
Equistar
Notes Security Documents
|
Fee Deed
of Trust by Equistar Chemicals, LP, as Grantor, to a trustee described therein,
for the benefit of Citibank, N.A., as Beneficiary, relating to property located
at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000 (includes two
Plants- Xxxxxxxxx Road EO/EG and Xxxxxxxxx Road EO Derivatives).
Fee Deed
of Trust by Equistar Chemicals, LP, as Grantor, to a trustee described therein,
for the benefit of Citibank, N.A., as Beneficiary, relating to property located
at Equistar Chemicals (North) 0000 Xxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxx
Xxxxxx, Xxxxx 00000 (Olefins I, Olefins II, Butadiene, BT, Methanol, C4/C5
Plant).
Fee and
Leasehold Deed of Trust by Equistar Chemicals, LP, as Grantor, to a trustee
described therein, for the benefit of Citibank, N.A., as Beneficiary, relating
to property located at 12 miles south of Alvin on FM 2917, Alvin, Xxxxxxxx
Xxxxxx, Xxxxx 00000 and 2 Miles West of FM 2917 on FM 2004, Alvin, Xxxxxxxx
Xxxxxx, Xxxxx 00000 (includes two plants-Olefins/Aromatics Plant and HDPE
Plant).
Fee
Mortgage by Equistar Chemicals, LP to Citibank, N.A., relating to property
located at 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx, Xxxx 00000 (Olefins,
Polymers Plant).
Fee Deed
of Trust by Equistar Chemicals, LP, as Grantor, to a trustee described therein,
for the benefit of Citibank, N.A., as Beneficiary, relating to property located
at 0000 XxXxxxxx Xxxx, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
(Olefins/Aromatics Plant).
Fee Deed
of Trust by Equistar Chemicals, LP, as Grantor, to a trustee described therein,
for the benefit of Citibank, N.A., as Beneficiary, relating to property located
at 0000 Xxxxxx Xxx-Xxx Xxxx, Xx Xxxxx, Xxxxxx Xxxxxx, Xxxxx 00000 (includes two
Plants-Polymers LDPE/LLDPE and La Porte Olefins/Aromatics JV).
Fee Deed
of Trust by Equistar Chemicals, LP, as Grantor, to a trustee described therein,
for the benefit of Citibank, N.A., as Beneficiary, relating to property located
at US Highway 60, 13 miles south of Xxx Xxxx, Xxx Xxxx, Xxxxxxxxx Xxxxxx, Xxxxx
00000 (LDPE Plant).
-97-
Fee
Mortgage by Equistar Chemicals, LP to Citibank, N.A., relating to property
located at 0000 X. Xxxxxx Xxxx, Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxx 00000
(Olefins/Polymers Plant).
Leasehold
Deed of Trust by Equistar Chemicals, LP, as Grantor, to a trustee described
therein, for the benefit of Citibank, N.A., as Beneficiary, relating to property
located at Xxx Xxxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxx 00000 (HDPE
Plant).
Fee
Mortgage by Equistar Chemicals, LP to Citibank, N.A., relating to property
located at 00000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxx 00000
(Cincinnati Technology Center).
Any other
Security Document which, under the terms of the Equistar Notes Indenture, is
required to provide for security in favour of the Equistar Notes Finance
Document.
-98-
SCHEDULE
7
HIGH
YIELD NOTES MAJOR TERMS
Issuer of High Yield Notes –
Basell AF S.C.A. a société en
commandite par actions.
High Yield Notes Trustee -
Must accede to this Agreement.
Maturity – Not earlier than
six months after the initial maturity of the longest term loan under the Senior
Facility Agreement (as of the date hereof) it being acknowledged that the High
Yield Notes may have optional redemption, change of control and asset sale
provisions.
Purpose – To make a High Yield
Notes On-Loan to Basell Holdings which shall be used to repay the Interim
Facility Debt and fees and expenses in connection therewith and otherwise be
used to refinance Senior Debt.
High Yield Notes Guarantees –
Guarantees by members of the Group may only be given on a senior subordinated
basis by the various subsidiaries of the Company, provided that such companies
are also guarantors of the Senior Debt.
High Yield Notes Security –
The High Yield Notes may have the benefit of security only on a second ranking
basis and only in the form of:
|
(a)
|
a
pledge of the subordinated downstream loan of the proceeds of the High
Yield Notes from the Company to Basell Holdings;
and
|
|
(b)
|
a
pledge of all of the shares in Basell
Funding.
|
-99-
SCHEDULE
8
HIGH
YIELD NOTES GUARANTEE MATURITY PROVISIONS
|
1.
|
Each
High Yield Notes Guarantee will provide that it will not mature (and no
amount will become due or payable under it)
unless:
|
|
|
(a)
|
a
High Yield Notes Default arising out of the failure to pay any amount
under the High Yield Notes Finance Documents has occurred and is
continuing; and
|
|
|
(b)
|
enforcement
is permitted under the terms of Clause 19.6 (Permitted High Yield Notes
On-Loan and Permitted High Yield Notes Security Documents
enforcement).
|
|
2.
|
Each
High Yield Notes Guarantee shall contain provisions in relation to payment
blockage, subordination and turnover that substantially replicate those
provisions of this Agreement that relate to each High Yield Notes
Guarantee or shall be made expressly subject to the provisions of this
Agreement in a legally binding
manner.
|
-100-
SCHEDULE
9
SECURITY
AGENCY PROVISIONS
|
1.
|
Definitions
|
In this
Schedule:
“Security Property” means all
right, title and interest in, to and under any Security Document,
including:
|
|
(a)
|
the
assets over which Security is expressed to be created pursuant to any
Security Document (the “Charged
Assets”);
|
|
|
(b)
|
the
benefit of the undertakings in any Security Document;
and
|
|
|
(c)
|
all
sums received or recovered by the Security Agent pursuant to any Security
Document and any assets representing the
same.
|
|
2.
|
Declaration of
trust
|
|
2.1
|
The
Security Agent, each other Senior Secured Party, the Arco Notes Secured
Party, the Equistar Notes Secured Party and the High Yield Notes Trustee
agree that the Security Agent shall hold the Security Property in trust
for the benefit of the Senior Secured Parties, the Arco Noteholders, the
Equistar Noteholders, the Second Lien Noteholders (if any) and the High
Yield Notes Finance Parties and High Yield Noteholders on the terms of the
Agreement.
|
|
2.2
|
Subject
to paragraph 2.3 below, paragraph 2.1 above shall not apply to any
Security Document which is expressed to be or is construed to be governed
by any law other than English, Hong Kong or US law or laws of Canada
(including the federal laws of Canada and the laws of each province or
territory thereof) or any other law from time to time designated by the
Security Agent and an Obligor or any Security Property arising under any
such Security Document.
|
|
2.3
|
Paragraph
2.2 above shall not affect or limit Clause 24.6 (Parallel Debt) nor the
applicability of the provisions of this Schedule with respect to any
Security Document which is expressed to be or is construed to be governed
by any law other than English, Hong Kong or US law or laws of Canada
(including the federal laws of Canada and the laws of each province or
territory thereof) or any other law from time to time designated by the
Security Agent and an Obligor or any Security Property arising under any
such Security Document.
|
|
3.
|
Defects in
Security
|
The
Security Agent shall not be liable for any failure or omission to perfect, or
defect in perfecting, the Security created pursuant to any Security Document,
including:
|
|
(a)
|
failure
to obtain any Authorisation for the execution, validity, enforceability or
admissibility in evidence of any Security Document;
or
|
|
|
(b)
|
failure
to effect or procure registration of or otherwise protect or perfect any
of the Security created by the Security Documents under any laws in any
territory.
|
|
4.
|
No
enquiry
|
The
Security Agent may accept without enquiry, requisition, objection or
investigation such title as any Obligor may have to any Charged
Assets.
-101-
|
5.
|
Retention of
documents
|
The
Security Agent may hold title deeds and other documents relating to any of the
Charged Assets in such manner as it sees fit (including allowing any Obligor to
retain them).
|
6.
|
Indemnity out of Security
Property
|
The
Security Agent and every receiver, delegate, attorney, agent or other similar
person appointed under any Security Document may indemnify itself out of the
Security Property against any cost, loss or liability incurred by it in that
capacity (otherwise than by reason of its own gross negligence, willful
misconduct or fraud).
|
7.
|
Basis of
distribution
|
To enable
it to make any distribution, the Security Agent may fix a date as at which the
amount of the Debt is to be calculated and may require, and rely on, a
certificate from any Party giving details of:
|
|
(a)
|
any
sums due or owing to any Party as at that date;
and
|
|
|
(b)
|
such
other matters as it thinks fit.
|
|
8.
|
Rights of Security
Agent
|
For
purposes of Security granted under the laws of England and Wales, the Security
Agent shall have all the rights, privileges and immunities which gratuitous
trustees have or may have in England, even though it is entitled to
remuneration.
|
9.
|
No duty to collect
payments
|
Except as
otherwise stated in this Agreement, the Security Agent shall not have any
duty:
|
|
(a)
|
to
ensure that any payment or other financial benefit in respect of any of
the Charged Assets or any Debt is duly and punctually paid, received or
collected; or
|
|
|
(b)
|
to
ensure the taking up of any (or any offer of any) stocks, shares, rights,
moneys or other property accruing or offered at any time by way of
interest, dividend, redemption, bonus, rights, preference, option, warrant
or otherwise in respect of any of the Charged Assets or any
Debt.
|
|
10.
|
Perpetuity
period
|
The
perpetuity period for the trusts created by this Agreement shall be 80 years
from the date of this Agreement.
|
11.
|
Appropriation
|
|
11.1
|
Each
Party irrevocably waives any right to appropriate any payment to, or other
sum received, recovered or held by, the Security Agent in or towards
payment of any particular part of the Debt and agrees that the Security
Agent shall have the exclusive right to do
so.
|
|
11.2
|
Paragraph
(a) above will override any application made or purported to be made by
any other person.
|
|
12.
|
Investments
|
All money
received or held by the Security Agent pursuant to the trusts in this Agreement
may, in the name of, or under the control of, the Security Agent:
-102-
|
|
(a)
|
be
invested in any investment it may select;
or
|
|
|
(b)
|
be
deposited at such bank or institution (including itself, any other Senior
Secured Party or any Affiliate of any Senior Secured Party) as it thinks
fit.
|
|
13.
|
Suspense
account
|
Subject
to paragraph 14 (Timing of distributions) below and save in respect of the
Trustee Amounts, the Security Agent may:
|
|
(a)
|
hold
in an interest bearing suspense account any moneys received by it from any
Party; and
|
|
|
(b)
|
invest
an amount equal to the balance from time to time standing to the credit of
that suspense account in any of the investments authorised by paragraph 12
(Investments) above.
|
|
14.
|
Timing of
distributions
|
Distributions
by the Security Agent shall be made as and when determined by it.
|
15.
|
Delegation
|
|
15.1
|
The
Security Agent may:
|
|
|
(a)
|
employ
and pay an agent selected by it to transact or conduct any business and to
do all acts required to be done by it (including the receipt and payment
of money);
|
|
|
(b)
|
delegate
to any person on any terms (including power to sub-delegate) all or any of
its functions; and
|
|
|
(c)
|
with
the prior consent of the Senior Agent under the Senior Facility Agreement
(if before the Senior Discharge Date) and the Instructing Second Lien
Agent (if before the Interim Facility Discharge Date) and the High Yield
Notes Trustee (if before the High Yield Notes Discharge Date), appoint, on
such terms as it may determine, or remove, any person to act either as
separate or joint security trustee or agent with those rights and
obligations vested in the Security Agent by this Agreement or any Security
Document.
|
|
15.2
|
The
Security Agent will not be:
|
|
|
(a)
|
responsible
to anyone for any misconduct or omission by any agent, delegate or
security trustee or security agent appointed by it pursuant to paragraph
(a) above; or
|
|
|
(b)
|
bound
to supervise the proceedings or acts of any such agent, delegate or
security trustee or security agent,
|
provided
that it exercises reasonable care in selecting that agent, delegate or security
trustee or security agent.
|
16.
|
Unwinding
|
Any
appropriation or distribution which later transpires to have been or is agreed
by the Security Agent to have been invalid or which has to be refunded shall be
refunded and shall be deemed never to have been made.
|
17.
|
Party
|
The
Security Agent shall be entitled to assume that a Party is acting in a
particular capacity stated in this Agreement or an Accession Agreement unless
notified to the contrary.
-103-
SCHEDULE 10
SECOND
LIEN NOTES MAJOR TERMS
Issuer of
Second Lien Notes – LyondellBasell Finance Company (or any other Subsidiary of
the Company incorporated in the United States or any State thereof or a member
state of the European Union on December 31, 2003 which is a borrower or a
guarantor of the Senior Facility Debt).
Second
Lien Notes Trustee — Must accede to this Agreement.
Maturity
– Not earlier than six months after the initial maturity of the longest term
loan under the Senior Facility Agreement (as of the date hereof) it being
acknowledged that the Second Lien Notes may have optional redemption, change of
control and asset sale provisions.
Purpose –
To repay the Interim Facility Debt and fees and expenses in
connection therewith and otherwise be used to refinance Senior
Debt.
Second
Lien Notes Guarantees – Guarantees by members of the Group may only be given on
by the various subsidiaries of the Company provided that such companies are also
guarantors of the Senior Facility Debt.
Second
Lien Notes Security – The Second Lien Notes may have the benefit of security on
some or all of the Security benefitting the Senior Facility Debt but only on a
second ranking basis.
-104-
SCHEDULE 11
UNSECURED
SENIOR NOTES MAJOR TERMS
Issuer of
Unsecured Senior Notes – LyondellBasell Finance Company (or any other Subsidiary
of the Company incorporated in the United States or any State thereof or a
member state of the European Union on December 31, 2003 which is a borrower or a
guarantor of the Senior Facility Debt).
Unsecured
Senior Notes Trustee — Must accede to this Agreement.
Maturity
– Not earlier than six months after the initial maturity of the longest term
loan under the Senior Facility Agreement (as of the date hereof) it being
acknowledged that the Unsecured Senior Notes may have optional redemption,
change of control and asset sale provisions.
Purpose –
To repay the Interim Facility Debt and fees and expenses in
connection therewith and otherwise be used to refinance Senior
Debt.
Unsecured
Senior Notes Guarantees – Guarantees by members of the Group may only be given
on by the various subsidiaries of the Company provided that such companies are
also guarantors of the Senior Facility Debt.
Unsecured
Senior Notes Security – None.
-105-
IN WITNESS WHEREOF,
each of the parties hereto has causeed a counterpart of this Agreement to be
duly exeucted and delivered as of th date first written above.
| BASELL AF S.C.A. | |
| BASELL ASIA PACIFIC LIMITED | |
| BASELL BAYREUTH CHEMIE GMBH | |
| BASELL CANADA INC. | |
| BASELL EUROPE HOLDINGS B.V. | |
| BASELL FINANCE & TRADING COMPANY B.V. | |
| BASELL FINANCE COMPANY B.V. | |
| BASELL FINANCE USA INC. | |
| BASELL FUNDING S.A.R.L. | |
| BASELL GERMANY HOLDINGS GMBH | |
| BASELL HOLDINGS B.V. | |
| BASELL INTERNATIONAL HOLDINGS B.V. | |
| BAELL POLYOLEFINE GMBH | |
| LBI ACQUISITION LLC | |
| LBIH LLC | |
| LYONDELLBASELL FINANCE COMPANY | |
| LYONDELLBASELL NETHERLANDS HOLDINGS B.V. | |
| By /s/ Xxxxx Xxxxxxxx | |
| Name: Xxxxx Xxxxxxxx | |
| Title: Authorized Representative |
| BASELL NORTH AMERICA INC. | |
| BASELL POLYOLEFINS UK LIMITED | |
| BASELL SALES & MARKETING COMPANY B.V. | |
| BASELL UK HOLDINGS LIMITED | |
| BASELL USA INC. | |
| XXXX ACQUISITION (US) LLC | |
| By /s/ Francesco Svelto | |
| Name: Francesco Svelto | |
| Title: Authorized Representative |
| EQUISTAR CHEMICALS, LP | |
| HOUSTON REFINING LP | |
| LYONDELL CHEMICAL COMPANY | |
| LYONDELL CHEMICAL NEDERLAND, LTD. | |
| LYONDELL CHEMICAL PRODUCTS EUROPE LLC | |
| LYONDELL CHEMICAL TECHNOLOGY, L.P. | |
| LYONDELL CHEMICAL TECHNOLOGY 1 INC. | |
| LYONDELL CHEMICAL TECHNOLOGY MANAGEMENT, INC. | |
| LYONDELL CHIMIE FRANCE LLC | |
| LYONDELL-EQUISTAR HOLDINGS PARTNERS | |
| LYONDELL EUROPE HOLDINGS INC. | |
| LYONDELL HOUSTON REFINERY INC. | |
| LYONDELL LP3 GP, LLC | |
| LYONDELL LP3 PARTNERS LP | |
| MILLENNIUM AMERICA HOLDINGS INC. | |
| MILLENNIUM AMERICA INC. | |
| MILLENNIUM CHEMICALS INC. | |
| MILLENNIUM PETROCHEMICALS GP LLC | |
| MILLENNIUM PETROCHEMICALS INC. | |
| MILLENNIUM PETROCHEMICALS PARTNERS, LP | |
| MILLENNIUM SPECIALTY CHEMICALS INC. | |
| MILLENNIUM US OP CO LLC | |
| MILLENNIUM WORLDWIDE HOLDINGS I INC. | |
| By /s/ Xxxxx X. Xxxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxxx | |
| Title: Authorized Representative |
| LYONDELL LP4 INC. | |
| LYONDELL (PELICAN) PETROCHEMICAL L.P. 1, INC. | |
| LYONDELL PETROCHEMICAL L.P. INC. | |
| LYONDELL REFINING COMPANY LLC | |
| LYONDELL REFINING LLC | |
| By /s/ Xxxxxx X. X'Xxxxx, Vice President | |
| Name: Xxxxxx X. X'Xxxxx | |
| Title: Authorized Representative |
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THE
ARCO NOTES TRUSTEE
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THE
BANK OF NEW YORK
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By:
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/s/ Xxxxx Xxxxxxxx | ||
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Name:
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Xxxxx Xxxxxxxx | ||
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Title:
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Address:
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Fax
No.:
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x00.000.000
2536
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Attention:
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THE
EQUISTAR NOTES TRUSTEE
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THE
BANK OF NEW YORK
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By:
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/s/ Xxxxx Xxxxxxxx | ||
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Name:
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Xxxxx Xxxxxxxx | ||
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Title:
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Address:
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Fax
No.:
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x00.000.000
2536
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Attention:
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THE
HIGH YIELD NOTES TRUSTEE
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THE
BANK OF NEW YORK
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By:
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/s/ Xxxxx Xxxxxxxx | ||
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Name:
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Xxxxx Xxxxxxxx | ||
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Title:
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Address:
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Fax
No.:
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x00.000.000
2536
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Attention:
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THE
ABL AGENT
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CITIBANK,
N.A.
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By:
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/s/ Xxxxxx Xxxxx | ||
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Name:
Xxxxxx Xxxxx - Vice President
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Title:
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Citigroup
Address:
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000 Xxxxxxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | |||
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Xxxxxx
Xxxxx Fax No.:
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(000) 000-0000 | ||
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Attention:
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Xxxxxx Xxxxx | ||
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THE
SENIOR AGENT:
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CITIBANK,
N.A.
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By:
:
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/s/ Xxxxxx Xxxxx | ||
| Xxxxxx Xxxxx - Vice President | |||
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Senior
Agent’s Address: 000 Xxxxxxxxx
Xxxxxx 0xx Xxxxx
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Xxx Xxxx, XX 00000
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| Senior Agent's Fax No.: (000) 000-0000 | |||
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Attention:
Xxxxxx Xxxxx
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THE
SECURITY AGENT
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CITIBANK,
N.A.
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By:
:
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/s/ Xxxxxx Xxxxx | ||
| Xxxxxx Xxxxx - Vice President | |||
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Security
Agent’s Address:
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000 Xxxxxxxxx Xxxxxx 0xx Xxxxx | ||
| Xxx Xxxx, XX 00000 | |||
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Security
Agent’s Fax No.:
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(000) 000-0000 | ||
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Attention:
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Xxxxxx Xxxxx | ||
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THE
ORIGINAL HEDGING BANKS
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ABN
AMRO BANK N.V.
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By:
:
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/s/ Xxxxx xx Xxxx | /s/ Marko Krercer | |
| Xxxxx xx Xxxx Marko Krercer | |||
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Executive
Director
|
Assistant Director | ||
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ING
BANK N.V.
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By:
:
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/s/ [not legible] | /s/ X. Xxxxxx | |
| [not legible] X. Xxxxxx | |||
| Director Managing Director | |||
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Address:
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Xxxxxxxxxxxx 000 | ||
| 0000 Xx Xxxxxxxxx | |||
| Xxx Xxxxxxxxxxx | |||
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Fax
No.:
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x00 00 00 00000 | ||
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Attention:
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THE
INTERIM FACILITY AGENT
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XXXXXXX
XXXXX CAPITAL CORPORATION
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By:
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/s/ [not legible] | ||
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[
] Address:
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[
] Fax No.:
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Attention:
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