LONG TERM INTERCOMPANY LOAN AGREEMENT (Loan No. L42)
EXHIBIT
4.12
(Loan
No. L42)
This
agreement (hereinafter “Agreement”), dated as of
February 22, 2008 and effective as of December 20, 2007 (hereinafter, the “Effective Date”), is made by
and between
LyondellBasell Finance
Company, a company incorporated under the laws of Delaware (hereinafter,
the “Lender”)
and
Lyondell Chemical Company, a
company incorporated under the laws of Delaware (hereinafter, the "Borrower").
WHEREAS
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A.
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The
Lender and the Borrower are subsidiaries of LyondellBasell Industries AF
S.C.A. (“LyondellBasell”, and
together with subsidiaries of LyondellBasell, the “LyondellBasell
Group”).
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B.
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The
Lender, as borrower, entered into the Bridge Loan Agreement dated as of
December 20, 2007, with, among others, Citibank N.A., as collateral agent
(the “Bridge”),
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C.
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The
Borrower has requested a loan from the Lender in order to finance its
general corporate and business
activities.
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D.
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The
Lender is available to grant such loan to the Borrower on the terms and
conditions set forth in this
Agreement.
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Now,
therefore, the Lender and the Borrower agree as
follows:
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1.
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Amount of the
Loan
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The
Lender hereby grants to the Borrower a loan in the amount of seven billion, one
hundred sixty five million, six hundred sixteen thousand nine hundred forty five
and no cents USD ($7,165,616,945.00) (hereinafter the “Loan”).
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2.
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Drawing
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The
Loan is deemed to be fully drawn on December 20, 2007 (the “Drawdown
Date”).
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3.
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Term
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The
term of the Loan shall be until and including December 20,
2014 (the “Repayment
Date”).
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4.
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Repayment, Voluntary
Pre-payment, Mandatory
prepayment
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The
Loan shall be repaid in full on the Repayment Date, provided, however,
that:
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(a)
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in
the event that, at any time before the Repayment Date, for any reason or
circumstance whatsoever, the Lender is required to repay any amount under
any corporate financing of the LyondellBasell Group, the Lender shall be
entitled to require the Borrower to make a mandatory prepayment of the
Loan or any portion thereof, and the Borrower shall
immediately, upon written notice by the Lender, make such mandatory
prepayment to the Lender, and any interest accrued thereon until the day
of the pre-payment, without any cost, penalty or liability of any type for
the Lender, and any and all rights of the Borrower in such respect, if
any, are waived insofar as permissible under applicable
law;
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(b)
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in
the event that, at any time before the Repayment Date, the lending by the
Lender to the Borrower of the Loan or any portion thereof would conflict
with any applicable law, the Lender shall be entitled to require the
Borrower a make a mandatory prepayment of the Loan or any portion thereof,
and the Borrower shall immediately, upon written notice by the Lender,
make such mandatory prepayment to the Lender, and any interest accrued
thereon until the day of the pre-payment, provided that each party shall
bear the costs it incurs in relation to such prepayment without any
further penalty or liability of any type of any party to the other, and
any and all rights of the relevant party in such respect, if any, are
waived insofar as permissible under applicable
law;
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(c)
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in
the event that, at any time before the Repayment Date, the Borrower wishes
to repay the Loan or any portion thereof to the Lender, it shall be
entitled to make a voluntary pre-payment of the Loan, or any portion
thereof, and any interest accrued thereon until the day of the pre-payment
upon providing written notice to Lender, provided that Borrower
shall, unless otherwise agreed by the Lender at that time, pay to the
Lender any fee, penalty, cost or expense of whatever type incurred by the
Lender in connection with such voluntary
prepayment.
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(d)
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any
Loan amount outstanding after the prepayments pursuant to Articles 4.a,
4.b and 4.c above, if any, and any interest accrued thereon, shall be
repaid in full on the Repayment Date, unless otherwise agreed between the
Lender and the Borrower when the payment pursuant to Article 4.b is
made.
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5.
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Interest period and
interest rate
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The
period used for the calculation of the interest payable to Lender for the Loan
(hereinafter the “Interest
Period”) shall be the same as that in effect under the Bridge (or, if the
Bridge is refinanced or replaced, the same interest period in effect under such
other credit facilities or bond issuances). The first Interest Period shall be
deemed to end on January 22, 2008. Not later than 3 Business Days prior to the
end of each calendar month, the Borrower shall notify the Lender whether it
intends to elect the period of time from the end of the last Interest Period to
the end of the calendar month in question as an Interest Period.
The
interest rate payable by the Borrower to the Lender for the Loan shall be the
same applicable rate in effect under the Bridge (or, if the Bridge is refinanced
or replaced, the same applicable rate in effect under such other credit
facilities or bond issuances) at the time of such interest rate calculation,
plus .5%.
All
interest for each Interest Period shall be paid on the last Business Day of such
Interest Period. The interest (including interest for late payments referred to
in Section 7 below) shall be calculated on the basis of the number of days
elapsed and on a 360-day year.
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6.
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Payments
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Payments
of principal and interest shall be made in USD on the relevant payment or
repayment date in immediately available funds at such bank and for credit of
such account as the Lender shall advise the Borrower in writing in advance. If
any payment date is not a Business Day, payment shall be made on the immediately
preceding Business Day.
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7.
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Interest on late
payments
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If
any repayment of principal or payment of interest or payment of costs
hereunder is not made when due, and such non-payment is not consented to
in writing by Lender no less than (2) Business Days prior to the due date
thereof, the Borrower shall pay interest on all amounts at a per annum
rate equal to the prime rate for the relevant currency as stated on the
relevant Reuters page for such currency, plus one percent (1%) for the
period from the due date to the date of actual
payment.
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8.
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Representations and
warranties
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The
Borrower hereby represents and warrants to the Lender that, as of the date
hereof:
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(a)
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it
is a company duly incorporated and validly existing under the laws of the
state and country of its
incorporation;
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(b)
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it
has the power to execute and deliver this Agreement and to exercise its
rights and perform its obligations
hereunder;
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(c)
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all
necessary action has been taken to authorise the execution and delivery of
and performance under this
Agreement;
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(d)
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the
execution and delivery of and performance under this Agreement (i) are not
prohibited by law or order or by its constitutional documentation, and
(ii) do not require any approval, filing or
exemption;
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(e)
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the
borrowing of the Loan by the Lender under this Agreement does not exceed
any limit posed on the Lender by its constitutional documents, any
contractual arrangement with any third party, and any applicable
law;
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(f)
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this
Agreement constitutes its legal, valid and binding obligation enforceable
against it in accordance with the terms hereof except to the extent such
enforcement may be limited by applicable bankruptcy, insolvency,
reorganisation or other similar laws, or by applicable general principles
of equity.
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9.
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Events
of Default.
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If
any of the following events shall
occur:
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(a)
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failure
of the Borrower to pay any sum due hereunder within three (3) Business
Days of the due date thereof (or within five (5) Business Days, where such
failure is solely the result of a technical or administrative delay
outside the control of the
Borrower);
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(b)
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the
Borrower defaults in the performance or observance of any other provision
contained in this Agreement and such is not remedied within ten (10) days
of receipt of notice thereof from the
Lender;
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(c)
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any
representation, warranty or other statement made by the Borrower hereunder
shall prove to have been untrue when made, and if remediable, is not
remedied within ten (10) days of written notice thereof from the
Lender;
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(d)
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the
Borrower (i) initiates or has initiated against it bankruptcy,
reorganisation, liquidation or similar proceedings; (ii) admits in writing
that it is generally unable to pay its debts as they become due; (iii)
makes an assignment for the benefit of it creditors of all or
substantially all of its assets;
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(e)
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the
majority of the share capital of the Borrower ceases to be directly or
indirectly owned or controlled by
LyondellBasell;
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then,
by written notice to the Borrower, and while such event is continuing
un-remedied, the Lender may declare any amount then outstanding hereunder
immediately due and payable, without demand or any other notice, all of
which are hereby expressly waived by the
Borrower.
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10.
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General.
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(a) Taxes
Unless
otherwise agreed by the parties in writing in advance, all payments hereunder by
the Borrower to the Lender shall be made free and clear of and without deduction
for any taxes, levies or other governmental charges.
(b) Notices
Except as
otherwise stated herein, all notices to be provided hereunder, including demand
for payment, shall be (a) by telephone (which shall be promptly confirmed by
e-mail or telecopy) or (b) in writing (including e-mail, telecopy or similar
writing). Such notices shall be telephoned and confirmed, e-mailed,
telexed, telegraphed, telecopied, mailed, or delivered to the intended recipient
at the applicable number or address specified by such party to the other
party.
(c) Successors and
Assigns
This
Agreement shall be binding upon and shall inure to the benefit of the parties’
respective successors and assigns, provided that the Borrower shall not assign
or transfer its rights or obligations under this Agreement without the prior
written consent of the Lender, and the Lender shall only assign or transfer its
rights or obligations hereunder other once it has provided written notice of its
intent to do so to the Borrower.
(d)
Severability
If any
provision of this Agreement is held to be invalid by a court, the remaining
provisions shall nevertheless remain in full force and effect. The Lender and
the Borrower agree to negotiate in good faith a substitute, valid and
enforceable provision that most nearly reflect the parties’ original intent and
agree to be bound by such mutually agreed substitute provision.
(e)
Entire
Agreement
This
Agreement constitutes the entire, final, complete and exclusive agreement
between the Lender and the Borrower and supersedes all previous Agreement or
representation oral or in writing relating to this Agreement.
(f)
Assignment
This
Agreement may not be transferred, in whole or in part, by either party without
the prior written agreement of the other party.
(g) Modifications
This
Agreement may not be modified or amended except in writing, signed by duly
authorized representative of each party.
(h)
No
Waivers
No
failure or delay on the part of either party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof.
(i)
Business
Days
A
Business Day is any day on which the banks are open for inter-bank payments in
New York.
(j)
Counterparts
This
Agreement may be executed in counterparts, each of which is deemed to be an
original.
(k)
Accounts
The
parties agree that the Loan and all payments hereunder shall, in the absence of
manifest error, by evidenced by the accounts and records of the
Lender.
(l)
Governing Law,
Jurisdiction
This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware. Any dispute arising in any manner in connection
with this Agreement that the parties fail to settle amicably within a reasonable
time, may be referred for settlement, upon request of either party, to the Chief
Financial Officer of the LyondellBasell Group, who will act as arbitrator in
accordance with applicable law and whose judgment will be final and binding upon
the parties in absence of manifest error.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the
date set forth above.
Lyondell
Chemical
Company LyondellBasell
Finance Corporation
By: /s/
Xxxxx X.
Xxxxxxxxx By:
/s/ Xxxx Xxxxxx
Xxxxx
X.
Xxxxxxxxx Xxxx
Xxxxxx
Vice
President and
Treasurer President
