Contract
Exhibit
4.4(a)
Supplemental
Indenture (this “Supplemental
Indenture”), dated as of February 2, 2006, among each of Basell Polyolefine GmbH, Basell Bayreuth
Chemie GmbH, Basell Germany Holdings GmbH, Basell Polyolefins UK Ltd., Basell UK Holdings Ltd., Basell Canada Inc., Basell Asia
Pacific Ltd., Basell Holdings B.V., Basell
International Holdings B.V., Basell Benelux B.V., Basell Europe Holdings B.V.
and Basell Finance Company B.V., as Guarantors (collectively, the "Guaranteeing Subsidiaries"),
and The Bank of New York, a national banking association, as trustee under the
Indenture referred to below (the “Trustee”).
W I T N E
S S E T H
WHEREAS,
Basell AF SCA (formerly XXXX AF S.À.X.X.), a company incorporated under the laws
of The Grand Duchy of Luxembourg (the "Issuer"), each of the
Guarantors named therein, as Guarantors (the "Original Guaranteeing
Subsidiary"), The Bank of New York, as Trustee, Registrar, Paying Agent,
Transfer Agent and Listing Agent, ABN AMRO Bank N.V., as Security Agent, and
AIB/BNY Fund Management (Ireland) Limited, as Irish Paying Agent, have
heretofore executed and entered into an indenture (the “Indenture”) dated as of
August 10, 2005 providing for the issuance of an aggregate principal amount of
$615,000,000 of the Issuer's 8-3/8% Senior Notes due 2015 (the “Dollar Notes”) and
€500,000,000 of the Issuer's 8-3/8% Senior Notes due 2015 (together with the
Dollar Notes, the "Notes"); and
WHEREAS,
the Indenture provides that the Issuer shall use its commercially reasonable
efforts to cause Restricted Subsidiaries of the Issuer that account for, in the
aggregate, greater than 50% of the Consolidated EBITDA of the Issuer for the
year ended December 31, 2004 to issue Guarantees in accordance with the
Indenture not later than the date that is 180 days after the Issue
Date.
NOW
THEREFORE, in consideration of the foregoing, each of the Guaranteeing
Subsidiaries and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:
1.
Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
2.
Agreement to Be Bound. Each Guaranteeing Subsidiary hereby becomes a party to
the Indenture as a Guarantor and as such will have all of the rights and be
subject to all of the obligations and agreements of a Guarantor under the
Indenture. Each Guaranteeing Subsidiary agrees to be bound by all of the
provisions of the Indenture applicable to a Guarantor and to perform all of the
obligations and agreements of a Guarantor under the Indenture.
3.
Agreement to Guarantee. Each Guaranteeing Subsidiary hereby, jointly and
severally with each other Guaranteeing Subsidiary and each Original Guaranteeing
Subsidiary, unconditionally and irrevocably guarantees, on a senior subordinated
basis to each Holder of a Note (including any Additional Notes upon issuance in
accordance with Section 2.18 of the Indenture) authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and enforcement of the Indenture, the Notes or the Obligations of
the Issuer or any other Guarantors to the Holders or the Trustee thereunder or
under the Indenture, that: (a) the principal of, premium, if any, and interest
on the Notes (and any interest accrued pursuant to Section 2.12 of the Indenture
or Supplemental Indenture accrued pursuant to Section 4.19(c) of the Indenture
payable thereon) shall be duly and punctually paid in full when due, whether at
maturity, upon redemption at the option of the Holders pursuant to the
provisions of the Notes relating thereto, by acceleration or otherwise, and
interest on the overdue principal and (to the extent permitted by law) interest,
if any, on the Notes and all other obligations of the Issuer or the Guarantors
to the Holders or the Trustee hereunder or thereunder (including amounts due the
Trustee under Section 7.07 of the Indenture) and all other payment obligations
shall be promptly paid in full or performed, all in accordance with the terms of
the Indenture and thereof and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, the same shall be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at maturity, by acceleration or
otherwise.
4.
Limitation on Guarantees.
(a)
General. The
obligations of each Guarantor under its Guarantee are limited to the maximum
amount which, after giving effect to all other contingent and fixed liabilities
of such Guarantor and after giving effect to any collections from or payments
made by or on behalf of any other Guarantor in respect of the obligations of
such other Guarantor under its Guarantee or pursuant to its contribution
obligations under the Indenture, will result in the obligations of such
Guarantor under the Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under applicable law.
(b)
German
Guarantors. To the extent that a Guarantee is granted by a Guarantor
incorporated in Germany as a limited liability company (GmbH) (a "German
Guarantor") and secures debt other than debt of such German Guarantor itself or
any of its Subsidiaries, the following shall apply:
(i)
Each German Guarantor guarantees the payment of all and any amounts, which
correspond to funds that have been received pursuant to the issuance of Notes
under the Indenture and have been on-lent to, or otherwise passed on to, the
relevant German Guarantor or any of its Subsidiaries, to the extent that any
such amount is still outstanding at the time the relevant demand is made against
such German Guarantor.
(ii)
Each German Guarantor further guarantees the payment of any amount in excess of
the amounts payable by the relevant German Guarantor pursuant to paragraph
(b)(i) above, its relevant liability is however limited as follows:
(A)
The Trustee and holders of Notes shall not be entitled to enforce the Guarantee
in an amount exceeding the amounts payable under paragraph (b)(i) above to the
extent that the further enforcement of the Guarantee exceeding the amounts
payable under paragraph (b)(i) above has the effect of:
(1)
reducing the German Guarantor's net assets (Nettovermögen) (the "Net
Assets") to an amount less than its stated share capital (Stammkapital);
or
(2)
(if the Net Assets are already an amount less than the stated share capital)
causing such amount to be further reduced,
and thereby affect the assets required
for the obligatory preservation of its stated share capital according to §§ 30,
31 German GmbH-Act (GmbH-Gesetz) (the
"GmbH-Act").
(B)
The value of the Net Assets shall be determined in accordance with GAAP
consistently applied by the German Guarantor in preparing its unconsolidated
balance sheets (Jahresabschluss according to
§ 42 GmbH-Act, §§ 242, 264 of the German Commercial Code (HGB)) in the previous
years, save that:
(1)
the amount of any increase of the stated share capital (Stammkapital) of the German
Guarantor registered after the date hereof without the prior written consent of
the Trustee shall be deducted from the relevant stated share
capital;
(2)
loans provided to the relevant German Guarantor by the Company or any of its
Subsidiaries after the date hereof shall be disregarded if such loans are
subordinated, or are considered subordinated pursuant to § 32a GmbH-Act;
and
(3)
loans and other liabilities incurred in violation of the provisions of the
Indenture after the date hereof shall be disregarded.
(C)
The limitation set out in paragraph (b)(ii)(A) above shall not apply if the
relevant German Guarantor has filed for insolvency or temporary or insolvency
proceedings have been commenced.
(D)
If the enforcement of the Guarantee in an amount exceeding any amount to be paid
under paragraph (b)(i) above has led to one of the effects referred to in
paragraph (b)(ii)(A) above, then the relevant German Guarantor shall realise at
market value any and all of its assets that are shown in its balance sheet with
a book value (Buchwert)
that is significantly lower than their market value if such assets are not
necessary for the relevant German Guarantor's business (nicht betriebsnotwendig), to
the extent necessary to satisfy the amounts requested under this paragraph
(b)(ii).
(E)
The limitation set out in paragraph (b)(ii)(A) above does not affect the right
of the Trustee or holders of Notes to claim again any outstanding amount at a
later point in time if and to the extent that paragraph (b)(ii)(A) above would
allow this at that later point.
Notwithstanding the foregoing the
Trustee and the holders of Notes waive their rights to enforce the Guarantee to
the extent that and as long as such enforcement would be in violation of the
prohibition of an intervention threatening the existence of that German
Guarantor (Verstoß gegen das
Verbot des existenzvernichtenden Eingriffs).
(c)
Dutch
Guarantors. The obligations under a Guarantee of a Guarantor
incorporated in The Netherlands (a "Dutch Guarantor") or, for the purpose of
paragraph (i) below only, of a Subsidiary of such Dutch Guarantor will not apply
to the extent that it would result in the Guarantee given by that Dutch
Guarantor:
(i)
constituting unlawful financial assistance within the meaning of Section 2:98c
or 2:207c of the Dutch Civil Code (Burgerlijk Wetboek); or
(ii)
conflicting with Section 2:7 of the Dutch Civil Code (Burgerlijk
Wetboek).
Any amount which may be guaranteed by
Basell Benelux B.V. shall not exceed the amount permitted to be guaranteed or
otherwise incurred as Debt (as defined in the Fiscal and Paying Agency Agreement
dated 15 March 1997 in respect of the US$300,000,000 8.10 per cent. guaranteed
notes due 15 March 2027 issued by Montell Finance Company B.V. (now known as
Basell Finance Company B.V.) (the "2027 Notes") as supplemented by the Amendment
to Fiscal and Paying Agency Agreement dated as of 25 July 2002 (together, the
"Existing Notes Finance Documents") in accordance with the terms of the Existing
Notes Finance Documents after taking into account all other Debt (as defined in
the Existing Notes Finance Documents) of all Restricted Subsidiaries (as defined
in the Existing Notes Finance Documents), provided that such limitation on the
amount guaranteed shall not operate so as to release Basell Benelux B.V. from
its obligations under its Guarantee and further provided that upon the
refinancing in full of the 2027 Notes, the limitations on guarantees which exist
as a result of the provisions of the Existing Notes Finance Documents shall be
automatically removed from the date of such refinancing and accordingly that
this paragraph restricting it as a Guarantor under the Indenture and the Notes
shall cease to operate and have any force and effect from the date of such
refinancing.
Additionally, in the case of Basell
Benelux B.V. its obligations under its Guarantee shall apply only insofar as
required to guarantee the payment obligations of the Issuer and any other
Guarantor with respect to any proceeds of the Notes directly or indirectly made
available by the Issuer or any other Guarantor to Basell Benelux B.V. through
intra-group loans or facilities and limited to the amount of such loans or
facilities available to Basell Benelux B.V. as outstanding from time to
time.
(d)
Financial
Assistance. Notwithstanding the foregoing each Guarantor is
not guaranteeing any liabilities which would result in, and the Trustee and the
holders of Notes waive their rights to enforce each Guarantee to the extent and
as long as such enforcement would result in, the relevant Guarantor not
complying with any applicable financial assistance rules.
5.
Ratification of Indenture; Supplemental Indenture Is Part of Indenture. Except
as expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of a Note heretofore or hereafter
authenticated and delivered shall be bound hereby.
6.
Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Each of the parties
hereto agrees to submit to the non-exclusive jurisdiction of the competent
courts of the State of New York in any action or proceeding arising out of or
relating to this Supplemental Indenture.
7.
Duplicate Originals. All parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
8.
Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
9.
The Trustee. The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Supplemental Indenture or
for or in respect of the recitals contained herein, all of which recitals are
made solely by the Guaranteeing Subsidiaries.
(Signature
page follows.)
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed and attested, all as of the date first above
written.
BASELL
POLYOLEFINE GMBH
By:
/s/ P.
Vacua
Name: P.
Vacua
Title: Attorney
In Fact
BASELL
BAYREUTH CHEMIE GMBH
By:
/s/ P.
Vacua
Name: P.
Vacua
Title: Attorney
In Fact
BASELL
GERMANY HOLDINGS GMBH
By:
/s/ P.
Vacua
Name: P.
Vacua
Title: Attorney
In Fact
BASELL
POLYOLEFINS UK LTD.
By:
/s/ P.
Vacua
Name: P.
Vacua
Title: Attorney
In Fact
BASELL
UK HOLDINGS LTD.
By:
/s/ P.
Vacua
Name: P.
Vacua
Title: Attorney
In Fact
BASELL
CANADA INC.
By:
/s/ P.
Vacua
Name: P.
Vacua
Title: Attorney
In Fact
BASELL
ASIA PACIFIC LTD.
By:
/s/ P.
Vacua
Name: P.
Vacua
Title: Attorney
In Fact
BASELL
HOLDINGS B.V.
By:
/s/ P.
Vacua
Name: P.
Vacua
Title: Attorney
In Fact
BASELL
INTERNATIONAL HOLDINGS
B.V.
By:
/s/ P.
Vacua
Name: P.
Vacua
Title: Attorney
In Fact
BASELL
BENELUX B.V.
By:
/s/ P.
Vacua
Name: P.
Vacua
Title: Attorney
In Fact
BASELL
EUROPE HOLDINGS B.V.
By:
/s/ P.
Vacua
Name: P.
Vacua
Title: Attorney
In Fact
BASELL
FINANCE COMPANY B.V.
By:
/s/ P.
Vacua
Name: P.
Vacua
Title: Attorney
In Fact
THE
BANK OF NEW YORK, as Trustee
By:
/s/ Xxxxxxxxx
Xxxxxxx
Name: Xxxxxxxxx
Xxxxxxx
Title: Assistant
Vice President