Supplemental Indenture (this “Second Supplemental
Indenture”), dated as of May 15, 2007, among each of Basell Sales & Marketing Company
B.V. and Basell Finance &
Trading Company B.V., as Guarantors (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
Basell AF SCA (formerly NELL AF S.À.R.L.), 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
Subsidiaries"), 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 amended on February 2,
2006, 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");
Section 4.19 of the Indenture provides that the Issuer shall cause each
Restricted Subsidiary of the Issuer that, after the Issue Date, guarantees the
Senior Secured Credit Facilities to execute and deliver to the Trustee a
supplemental indenture pursuant to which such Restricted Subsidiary shall
guarantee payment of the Notes on the same terms and subject to the same
conditions and limitations as those set forth in the Indenture; and
on June 29, 2006, Basell Sales
& Marketing Company B.V. Basell Finance & Trading
Company B.V. provided a guarantee under the Senior Secured Credit
on June 26, 2006, Basell Finance & Trading Company B.V. provided a guarantee
under the Senior Secured Credit Facilities;
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:
Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
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.
Agreement to Guarantee. Each Guaranteeing Subsidiary hereby, jointly and
severally with each Original Guaranteeing Subsidiary and each subsidiary of the
Issuer that issued a Guarantee of the Notes on February 2, 2006, 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 Interest accrued
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.
Limitation on Guarantees.
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.
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
constituting unlawful financial assistance within the meaning of Section 2:98c
or 2:207c of the Dutch Civil Code (Burgerlijk Wetboek);
conflicting with Section 2:7 of the Dutch Civil Code (Burgerlijk
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.
Ratification of Indenture; Second 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 Second 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.
Governing Law. THIS SECOND 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 Second Supplemental Indenture.
Duplicate Originals. All parties may sign any number of copies of this Second
Supplemental Indenture. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
The Trustee. The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Second Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by each Guaranteeing Subsidiary.
WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed and attested, all as of the date first above
SALES & MARKETING COMPANY B.V.
FINANCE & TRADING COMPANY B.V.
CORPORATE TRUSTEE SERVICES LIMITED, as Trustee