WESTROCK MWV, LLC as Issuer, THE NEW GUARANTORS PARTY HERETO and THE BANK OF NEW YORK MELLON as Trustee Sixth Supplemental Indenture Dated as of July 5, 2024 to Indenture Dated as of February 1, 1993
Exhibit 4.42
WESTROCK MWV, LLC
as Issuer,
THE NEW GUARANTORS PARTY HERETO
and
THE BANK OF NEW YORK MELLON
as Trustee
Dated as of July 5, 2024
to
Indenture
Dated as of February 1, 1993
SIXTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of July 5, 2024, by and among (i) WestRock MWV, LLC, a Delaware limited liability company (as successor to MeadWestvaco Corporation, the “Issuer”); (ii) the entities listed in the signature pages hereto as “New Guarantors” (the “New Guarantors”); and (iii) The Bank of New York Mellon (as successor to The First National Bank of Chicago), as trustee (the “Trustee”) under the hereafter defined Indenture.
WHEREAS, the Issuer and the Trustee have previously executed and delivered an indenture, dated as of February 1, 1993, providing for the issuance from time to time of the Issuer’s Securities (as defined therein) (the “Base Indenture”), as amended and supplemented by the First Supplemental Indenture, dated as of January 31, 2002, the Second Supplemental Indenture, dated as of December 31, 2002, the Third Supplemental Indenture, dated as of December 31, 2002, the Fourth Supplemental Indenture, dated as of July 1, 2015 and the Fifth Supplemental Indenture, dated as of November 2, 2018 (the Base Indenture, as so amended and supplemented, the “Indenture”), pursuant to which, among other things, WRKCo Inc., a Delaware corporation, WestRock RKT, LLC, a Georgia limited liability company, and WestRock (as hereinafter defined) became guarantors under the Indenture;
WHEREAS, the only Securities currently outstanding under the Indenture are the Issuer’s 6.840% Debentures due 2037 and 7.550% Debentures due 2047 (the “Notes”);
WHEREAS, pursuant to a transaction agreement, dated as of September 12, 2023, entered into by WestRock Company, a Delaware corporation (“WestRock”), Smurfit Kappa Group plc, an Irish public limited company (“SKG”), Smurfit WestRock plc, an Irish public limited company (formerly known as Smurfit WestRock Limited, “Smurfit WestRock”), and Sun Merger Sub, LLC, a Delaware limited liability company and a wholly owned subsidiary of Smurfit WestRock (the “Transaction Agreement”), SKG and WestRock will each become a wholly owned subsidiary of Smurfit WestRock (the “Combination”);
WHEREAS, in connection with the Combination and subject to the consummation of the Combination on the date hereof, each New Guarantor desires to fully and unconditionally guarantee all the monetary obligations of the Issuer under the Indenture (including obligations to the Trustee) and the full and punctual performance within applicable grace periods of all other obligations of the Issuer under the Indenture (the “Guarantees”);
WHEREAS, the Issuer proposes in and by this Supplemental Indenture to supplement and amend the Indenture in certain respects as it applies to the Notes (and any other series of Securities issued thereunder after the date of this Supplemental Indenture);
WHEREAS, pursuant to Section 901(9) of the Indenture, the Issuer, the New Guarantors and the Trustee are authorized to execute and deliver this Supplemental Indenture without the consent of Holders of the Notes; and
WHEREAS, all the conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the Issuer and the New Guarantors (together the “Obligors”) and the execution and delivery hereof have been in all respects duly authorized by the Obligors.
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NOW, THEREFORE, in consideration of the above premises, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes and the Holders of any Securities issued under the Indenture after the date of this Supplemental Indenture, as follows:
Article One
REAFFIRMATION, ACCESSION AND AMENDMENT
(a) Each New Guarantor unconditionally guarantees, on a joint and several basis, to each Holder of Notes (including each Holder of Securities issued under the Indenture after the date of this Supplemental Indenture) and to the Trustee and its successors and assigns, (i) the full and punctual payment of all monetary obligations of the Issuer under the Indenture (including obligations to the Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Issuer under the Indenture. Each New Guarantor further agrees that its obligations hereunder shall be unconditional, irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Issuer (except to the extent such judgment is paid) or any waiver or amendment of the provisions of the Indenture or the Notes (or such other Securities) to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of such New Guarantor (except that such waiver or amendment shall be effective in accordance with its terms).
(b) Each New Guarantor further agrees that its Guarantee constitutes a guarantee of payment, performance and compliance and not merely of collection.
(c) Each New Guarantor further agrees to waive presentment to, demand of payment from and protest to the Issuer of its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment, the filing of claims with a court in the event of merger or bankruptcy of the Issuer and any right to require a proceeding first against the Issuer or any other Person. The obligations of each New Guarantor shall not be affected by any failure or policy on the part of the Trustee to exercise any right or remedy under the Indenture or the Notes of any series.
(d) The obligation of each New Guarantor to make any payment hereunder may be satisfied by causing the Issuer or another Obligor to make such payment. If any Holder of any Note or the Trustee is required by any court or otherwise to return to the Issuer or any Obligor or any custodian, trustee, liquidator or other similar official acting in relation to any of the Issuer or any such Obligor any amount paid by any of them to the Trustee or such Holder, any applicable Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
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(e) Each New Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder of Notes in enforcing any of their respective rights under its Guarantee.
(f) Any term or provision of this Supplemental Indenture to the contrary notwithstanding, the maximum aggregate amount of each New Guarantor’s Guarantee shall not exceed the maximum amount that can be hereby guaranteed without rendering this Supplemental Indenture, as it relates to such New Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. Notwithstanding any other provision of the Indenture or this Supplemental Indenture to the contrary, no obligation of the Issuer shall be (or shall be deemed to be) guaranteed by, or otherwise supported directly or indirectly by the assets of, any New Guarantor to the extent its Guarantee could, as determined by the Issuer (acting reasonably and in good faith), result in material adverse U.S. tax consequences for the Issuer or any of its direct or indirect owners or subsidiaries.
Article Two
MISCELLANEOUS PROVISIONS
SECTION 2.04. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first written above.
Very truly yours,
Issuer
WESTROCK MWV, LLC | ||
By | /s/ M. Xxxxxxxx Xxxxxxx | |
Name: M. Xxxxxxxx Xxxxxxx | ||
Title: Senior Vice President and Treasurer |
[Supplemental Indenture to WestRock MWV 1993 Indenture]
New Guarantors
SIGNED and DELIVERED as a deed | ||
for and on behalf of | ||
SMURFIT WESTROCK PLC | ||
by its duly authorized attorney | ||
in the presence of and delivered as a deed | /s/ Xxx Xxxxxx | |
Signature | ||
/s/ Xxxx Xxxxxxx | ||
Witness (Signature) | ||
0 Xxxxx Xxxxx Xxxxxx | ||
Print Address | ||
Solicitor | ||
Witness Occupation |
[Supplemental Indenture to WestRock MWV 1993 Indenture]
SMURFIT WESTROCK US HOLDINGS CORPORATION | ||
By | /s/ Xxx Xxxxxx | |
Name: Xxx Xxxxxx | ||
Title: Authorised Signatory |
[Supplemental Indenture to WestRock MWV 1993 Indenture]
SIGNED and DELIVERED as a deed | ||
for and on behalf of | ||
SMURFIT KAPPA GROUP PLC | ||
by its duly authorized attorney | ||
in the presence of and delivered as a deed | /s/ Xxx Xxxxxx | |
Signature | ||
Name: Xxx Xxxxxx | ||
Title: CFO / Attorney | ||
/s/ Xxxx Xxxxxxx | ||
Witness (Signature) | ||
0 Xxxxx Xxxxx Xxxxxx | /s/ Xxxxxxx Xxxxxx-Xxxxxx | |
Print Address | Signature | |
Name: Xxxxxxx Xxxxxx-Xxxxxx | ||
Title: Company Secretary / Attorney | ||
Solicitor | ||
Witness Occupation |
[Supplemental Indenture to WestRock MWV 1993 Indenture]
SIGNED and DELIVERED as a deed | ||
for and on behalf of | ||
SMURFIT KAPPA | ||
INVESTMENTS LIMITED | ||
by its duly authorized attorney | ||
in the presence of and delivered as a deed | /s/ Xxx Xxxxxx | |
Signature | ||
/s/ Xxxx Xxxxxxx | ||
Witness (Signature) | ||
0 Xxxxx Xxxxx Xxxxxx | ||
Print Address | ||
Solicitor | ||
Witness Occupation |
[Supplemental Indenture to WestRock MWV 1993 Indenture]
SIGNED and DELIVERED as a deed | ||
for and on behalf of | ||
SMURFIT KAPPA | ||
ACQUISITIONS UNLIMITED | ||
COMPANY | ||
by its duly authorized attorney | ||
in the presence of and delivered as a deed | /s/ Xxx Xxxxxx | |
Signature | ||
/s/ Xxxx Xxxxxxx | ||
Witness (Signature) | ||
0 Xxxxx Xxxxx Xxxxxx | ||
Print Address | ||
Solicitor | ||
Witness Occupation |
[Supplemental Indenture to WestRock MWV 1993 Indenture]
SIGNED and DELIVERED as a deed | ||
for and on behalf of | ||
SMURFIT KAPPA TREASURY | ||
UNLIMITED COMPANY | ||
by its duly authorized attorney | ||
in the presence of and delivered as a deed | /s/ Xxx Xxxxxx | |
Signature | ||
/s/ Xxxx Xxxxxxx | ||
Witness (Signature) | ||
0 Xxxxx Xxxxx Xxxxxx | ||
Print Address | ||
Solicitor | ||
Witness Occupation |
[Supplemental Indenture to WestRock MWV 1993 Indenture]
SIGNED and DELIVERED as a deed | ||
for and on behalf of | ||
SMURFIT KAPPA TREASURY | ||
FUNDING DESIGNATED | ||
ACTIVITY COMPANY | ||
by its duly authorized attorney | ||
in the presence of and delivered as a deed | /s/ Xxx Xxxxxx | |
Signature | ||
/s/ Xxxx Xxxxxxx | ||
Witness (Signature) | ||
0 Xxxxx Xxxxx Xxxxxx | ||
Print Address | ||
Solicitor | ||
Witness Occupation |
[Supplemental Indenture to WestRock MWV 1993 Indenture]
SMURFIT INTERNATIONAL B.V. | ||
By | /s/ Xxx Xxxxxx | |
Name: Xxx Xxxxxx | ||
Title: Authorised Signatory |
[Supplemental Indenture to WestRock MWV 1993 Indenture]
THE BANK OF NEW YORK MELLON, as Trustee | ||
By | /s/ Xxxxxx X. Xxxxxxxxxx | |
Name: Xxxxxx X. Xxxxxxxxxx | ||
Title: Vice President |
[Supplemental Indenture to WestRock MWV 1993 Indenture]