Third Supplemental Indenture (this “Third Supplemental Indenture”), dated as of July 26, 2007, among each of Basell AF SCA (formerly Nell AF S.à.r.l.), a company incorporated under the laws of The Grand Duchy of Luxembourg (the "Issuer"), Nell...
Exhibit
4.4(c)
Third
Supplemental Indenture (this “Third Supplemental
Indenture”), dated as of July 26, 2007, among each of Basell AF SCA
(formerly Xxxx AF S.à.x.x.), a company incorporated under the laws of The Grand
Duchy of Luxembourg (the "Issuer"), Xxxx Acquisition
(US) LLC, Basell Finance USA Inc., Basell North America Inc., Basell USA Inc.,
Basell Funding S.à.x.x. (formerly Xxxx Funding S.à.x.x.), Basell Holdings B.V.
(formerly Xxxx Bidco B.V.), 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., Basell Finance Company B.V.,
Basell Sales & Marketing Company B.V. and Basell Finance & Trading
Company B.V., as Guarantors (collectively, the "Guarantors"), 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,
the Issuer, each of the Guarantors that are a signatory thereto, as Guarantors,
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 (as supplemented by a Supplemental Indenture dated
as of February 2, 2006 by and among the Issuer, the Guarantors that are a
signatory thereto and the Trustee and a Second Supplemental Indenture dated as
of May 11, 2007 by and among the Issuer, the Guarantors that are a signatory
thereto and the Trustee, 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,
pursuant to clause (5) of Section 9.01 of the Indenture, the Issuer, each of the
Guarantors and the Trustee, together, are authorized to execute and deliver this
Third Supplemental Indenture (without the consent of any Holders of Notes) to
amend the Indenture to conform the text of the Indenture to provisions of the
“Description of Notes” in the offering memorandum of the Issuer dated August 4,
2005;
NOW
THEREFORE, in consideration of the foregoing, each of the Issuer, the Guarantors
and the Trustee mutually covenant and agree for the equal and ratable benefit of
the Holders of the Notes as follows:
ARTICLE
I
Definitions
1.
Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
ARTICLE
II
Amendments
2.
Modification of Definitions.
(a)
The definition of “Enforcement Sale” in Section 1.01 of the Indenture is hereby
amended so as to replace the term “Designated Senior Debt” in clause (2) thereof
with the term “Guarantor Senior Debt,” such that the definition of “Enforcement
Sale” in Section 1.01 of the Indenture shall provide as follows (emphasis
added):
“Enforcement Sale”
means (1) any sale or disposition of collateral pursuant to enforcement action
taken by the Security Agent in accordance with the provisions of the
Intercreditor Agreement, including on behalf of the Designated Senior
Debt incurred under the Senior Secured Credit Facilities, to the extent
such sale or disposition is effected in compliance with the provisions of the
Intercreditor Agreement, or (2) any sale or disposition of collateral pursuant
to the enforcement of security in favor of other Guarantor Senior Debt
which compiles with the terms of an intercreditor agreement (or if there is no
such intercreditor agreement, would substantially comply with the requirements
of clause (1) hereof).”
(b)
The definition of "Guarantor Senior Debt" is hereby added to Section 1.01 of the
Indenture, which shall provide as follows:
"Guarantor Senior
Debt" means with respect to any guarantor, the principal of,
premium, if any, and interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on any Indebtedness of a guarantor, whether outstanding on the
Issue Date or thereafter created, incurred or assumed, except for any such
Indebtedness that is expressly subordinated or equal in right of payment to the
guarantee of such guarantor. "Guarantor Senior Debt" also includes the principal
of, premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of;
(1)
all monetary obligations of every nature of a guarantor in respect of the Credit
Facilities, including obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and
indemnities,
(2)
all monetary obligations of every nature of a guarantor evidenced by a
promissory note and which is, directly or indirectly, pledged as security for
the obligations of the Company under the Credit Facilities,
(3)
all Interest Swap Obligations and
(4)
all obligations under Currency Agreements,
in each
case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing,
"Guarantor Senior Debt" does not include
(1)
any Indebtedness of such guarantor to its Restricted Subsidiaries or Affiliates
or any of such Affiliate's subsidiaries other than as described in clause (2)
above,
(2)
Indebtedness to, or guaranteed on behalf of, any shareholder, director, officer
or employee of such guarantor or any of its Restricted
Subsidiaries,
(3)
Indebtedness to trade creditors and other amounts incurred in connection with
obtaining goods, materials or services,
(4)
Indebtedness represented by Disqualified Capital Stock,
(5)
any liability for national, state, local or other taxes owed or owing by such
guarantor,
(6)
Indebtedness incurred in violation of the indenture provisions set forth under
Section 4.12,
(7)
Indebtedness which, when incurred, is without recourse to the Company
and
(8)
any Indebtedness that is expressly subordinated in right of payment to any other
Indebtedness of such guarantor.
3.
Modification of Section 4.12. The first paragraph of Section 4.12 of the
Indenture is hereby amended so as to delete the words “which are Guarantors,”
such that the first paragraph of Section 4.12 of the Indenture shall provide as
follows (deletion added):
“Section
4.12 Limitation on Incurrence of
Additional Indebtedness. The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume, guarantee, acquire, become liable, contingently or otherwise,
with respect to, or otherwise become responsible for payment of (collectively,
“incur”) any Indebtedness (other than Permitted Indebtedness); provided,
however, if no Default or Event of Default shall have occurred and be continuing
at the time of or as a consequence of the incurrence of any such Indebtedness,
the Company and its Restricted Subsidiaries which are
Guarantors may incur Indebtedness (including Acquired Indebtedness) if on
the date of the incurrence of such Indebtedness, after giving effect to the
incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the Company
is greater than 2.0 to 1.0.l.”
4.
Modification of Section 6.02. Clause (b) of Section 6.02 of the Indenture is
hereby amended so as to delete subclauses (3) and (4) in their entirety and
renumber subclause (5) as subclause (3), such that clause (b) of Section 6.02 of
the Indenture shall provide as follows (deletion and emphasis
added):
“(b) At
any time after a declaration of acceleration with respect to the Notes as
described in Section 6.02(a), the Holders of a majority in principal amount of
the Notes (including any Additional Notes) may rescind and cancel such
declaration and its consequences:
(1)
if the rescission would not conflict with any judgment or decree;
(2)
if all existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration;
and
(3)
to the extent the
payment of such interest is lawful, interest on overdue installments of interest
and overdue principal, which has become due otherwise than by such declaration
of acceleration, has been paid;
(4)
if the Company has
paid the Trustee its reasonable compensation and reimbursed the Trustee for its
expenses, disbursements and advances; or
(3)
in the event of the cure or waiver of an Event of Default of the type described
in Section 6.01(6) or (7), the Trustee shall have received an Officer’s
Certificate and an Opinion of Counsel that such Event of Default has been cured
or waived. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.”
ARTICLE
III
Miscellaneous
11.
Ratification of Indenture; Third 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 Third 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.
12.
Governing Law. THIS THIRD 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 Third Supplemental Indenture.
13.
Duplicate Originals. All parties may sign any number of copies of this Third
Supplemental Indenture. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
14.
Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
15.
The Trustee. The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Third 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 Third Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
BASELL
AF SCA
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Xxxxxxxx
XXXX
XXXXXXXXXXX (XX) LLC
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
FINANCE USA INC.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
NORTH AMERICA INC.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
USA INC.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
FUNDING S.à.X.X.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
HOLDINGS B.V.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
POLYOLEFINE GMBH
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
BAYREUTH CHEMIE GMBH
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
GERMANY HOLDINGS
GMBH
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
POLYOLEFINS UK LTD.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
UK HOLDINGS LTD.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
CANADA INC.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
ASIA PACIFIC LTD.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
HOLDINGS B.V.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
INTERNATIONAL HOLDINGS
B.V.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
BENELUX B.V.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
EUROPE HOLDINGS B.V.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
FINANCE COMPANY B.V.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
SALES & MARKETING
COMPANY
B.V.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
BASELL
FINANCE & TRADING
COMPANY
B.V.
By:
/s/ Francesco
Svelto
Name: Francesco
Svelto
Title: Attorney
THE
BANK OF NEW YORK, as Trustee
By:
/s/ Xxxxx
Xxxxxxxx
Name: Xxxxx
Xxxxxxxx
Title: Authorised
Signatory
