FIFTH SUPPLEMENTAL INDENTURE
Exhibit 4.7
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE, (this “Supplemental Indenture”) dated as of July 9, 2014, by and among the party signatory hereto as Guarantor (the “Guaranteeing Subsidiary”), Trinseo Materials Operating S.C.A., a company (société en commandite par actions) organized and existing under the laws of the Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register under number B 153586 (the “Company”), Trinseo Materials Finance, Inc., a Delaware corporation (“Trinseo Finance” and, together with the Company, the “Issuers”), the other Guarantors (as defined in the Indenture referred to herein) and Wilmington Trust, National Association, as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, each of the Issuers, the Guarantors and the Trustee have heretofore executed and delivered an indenture dated as of January 29, 2013 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of an aggregate principal amount of $1,325.0 million of 8.750% Senior Secured Notes due 2019 of the Issuers (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances parties may execute and deliver to the Trustee a supplemental indenture to which they shall unconditionally guarantee, on a joint and several basis with the other Guarantors, all of the Issuers’ Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Guarantee”); and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Issuers, any Guarantor and the Trustee are authorized to execute and deliver this Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary, the Issuers, the other 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
SECTION 1.1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1. Agreement to Be Bound. Subject to Section 2.3, the 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.
SECTION 2.2. Guarantee. Subject to Section 2.3, the Guaranteeing Subsidiary agrees, on a joint and several basis with all the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Guaranteed Obligations pursuant to Article X of the Indenture on a senior basis.
SECTION 2.3 Limitation for Irish Guarantors. The Guarantee does not apply to any liability to the extent that it would result in the Guarantee constituting unlawful financial assistance within the meaning of, in respect of a Guarantor incorporated under the laws of Ireland, section 60 of the Companies Xxx 0000 of Ireland.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Notices. All notices and other communications to the Guarantor shall be given as provided in the Indenture to the Guarantor, at its address set forth below, with a copy to the Issuers as provided in the Indenture for notices to the Issuers.
SECTION 3.2. Merger and Consolidation. The Guaranteeing Subsidiary shall not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into another Person (other than an Issuer or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction) except in accordance with Section 4.1(f) of the Indenture.
SECTION 3.3. Release of Guarantee. This Guarantee shall be released in accordance with Section 10.2 of the Indenture.
SECTION 3.4. Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 3.5. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THE APPLICATION OF THE PROVISIONS SET OUT IN ARTICLES 86 TO 94-8 OF THE LUXEMBOURG LAW ON COMMERCIAL COMPANIES DATED AUGUST 10, 1915 IS EXCLUDED.
SECTION 3.6. Severability. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
SECTION 3.7. Benefits Acknowledged. The Guaranteeing Subsidiary’s Guarantee is subject to the terms and conditions set forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to this Guarantee are knowingly made in contemplation of such benefits.
SECTION 3.8. Ratification of Indenture; Supplemental Indentures 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 Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 3.9. The Trustee. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.
SECTION 3.10. Counterparts. The parties hereto may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 3.11. Execution and Delivery. The Guaranteeing Subsidiary agrees that the Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of any such Guarantee.
SECTION 3.12. Headings. The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| TRINSEO MATERIALS OPERATING S.C.A. |
| Société en commandité par actions |
| 0X, xxx Xxxxxxx Xxxxxxxx, X-0000 Xxxxxxxx |
| R.C.S. Luxembourg: B 153.586 |
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: Xxxx X. Xxxxxx | ||
| Title: Authorized Signatory |
| TRINSEO MATERIALS FINANCE, INC. | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: Xxxx X. Xxxxxx | ||
| Title: Executive Vice President and CFO | ||
[Signature Page to Supplemental Indenture]
Given the common seal of
TRINSEO FINANCE IRELAND
| /s/ Xxxxxxxxx Xxxxxx |
| Xxxxxxxxx Xxxxxx |
| Director |
| /s/ Xxxxxx Xxxx |
| Xxxxxx Xxxx |
| Director |
[Signature Page to Supplemental Indenture]
|
Société anonyme 0, xxx Xxx Xxxxxx, X-0000, Xxxxxxxxxx R.C.S. Luxembourg: B 153.549 | ||
| as a Guarantor | ||
| By: | /s/ Xxxxxxxx Xxxxxxx and Xxxxxxxxxx X. Xxxxxx | |
| Name: Xxxxxxxx Xxxxxxx and Xxxxxxxxxx X. Xxxxxx | ||
| Title: Director | ||
| XXXXXX LUXCO S.À X.X. Société à responsabilité limitée 0, xxx Xxx Xxxxxx, X-0000, Xxxxxxxxxx R.C.S. Luxembourg: B 153.577 Share Capital: USD 162,815,835.14 | ||
| as a Guarantor | ||
| By: | /s/ Xxxxxxxx Xxxxxxx | |
| Name: Xxxxxxxx Xxxxxxx Title: Manager | ||
| TRINSEO MATERIALS S.À X.X. Société à responsabilité limitée 0, xxx Xxx Xxxxxx, X-0000, Xxxxxxxxxx R.C.S. Luxembourg: B 162.639 Share Capital: USD 23,517,398.72 | ||
| as a Guarantor | ||
| By: | /s/ Xxxxxxxx Xxxxxxx | |
| Name: Xxxxxxxx Xxxxxxx Title: Manager | ||
| XXXXXX HOLDING S.À X.X. Société à responsabilité limitée 0, xxx Xxx Xxxxxx, X-0000, Xxxxxxxxxx R.C.S. Luxembourg: B 153.582 Share Capital: USD 162,815,834.12 | ||
| as a Guarantor | ||
| By: | /s/ Xxxxxxxx Xxxxxxx | |
| Name: Xxxxxxxx Xxxxxxx Title: Manager | ||
[Signature Page to Supplemental Indenture]
Given the common seal of
XXXXXX INVESTMENT HOLDINGS IRELAND
| /s/ Xxxxxxxxx Xxxxxx |
| Xxxxxxxxx Xxxxxx Director |
| /s/ Xxxxxx Xxxx |
| Xxxxxx Xxxx Director |
[Signature Page to Supplemental Indenture]
| XXXXXX US HOLDING, INC., as a Guarantor | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: Xxxx X. Xxxxxx Title: Executive Vice President and CFO | ||
| XXXXXX LLC, as a Guarantor | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: Xxxx X. Xxxxxx Title: Executive Vice President and CFO | ||
[Signature Page to Supplemental Indenture]
| XXXXXX HOLDING B.V., as a Guarantor | ||
| By: | /s/ Xxxxx Xxxxxxxxxx | |
| Name: Xxxxx Xxxxxxxxxx Title: Director | ||
[Signature Page to Supplemental Indenture]
| XXXXXX NETHERLANDS B.V., as a Guarantor | ||
| By: | /s/ Xxxxx Xxxxxxxxxx | |
| Name: Xxxxx Xxxxxxxxxx Title: Director | ||
[Signature Page to Supplemental Indenture]
| XXXXXX FINANCE LUXEMBOURG S.À X.X. Société à responsabilité limitée 0, xxx Xxx Xxxxxx, X-0000, Xxxxxxxxxx R.C.S. Luxembourg: B 151.012 Share Capital: USD 25,001.- | ||
| as a Guarantor | ||
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: Xxxx Xxxxxxxxx Title: Manager | ||
| By: | /s/ Xxxxxxxx Xxxxxxx | |
| Name: Xxxxxxxx Xxxxxxx Title: Manager | ||
[Signature Page to Supplemental Indenture]
| XXXXXX DEUTSCHLAND GmbH, as a Guarantor | ||
| By: | /s/ Ralf Irmert | |
| Name: Ralf Irmert | ||
| Title: Managing Director | ||
| XXXXXX DEUTSCHLAND ANLAGENGESELLSCHAFT mbH, as a Guarantor | ||
| By: | /s/ Xxxx-Xxxxxxxx Xxxxxxx | |
| Name: Xxxx-Xxxxxxxx Xxxxxxx Title: Managing Director | ||
[Signature Page to Supplemental Indenture]
IN WITNESS WHEREOF, Xxxxxx (Hong Kong) Limited has caused this Supplemental Indenture to be duly executed and delivered as a deed, as of the date first above written.
| XXXXXX (HONG KONG) LIMITED | ||
| SEALED with the COMMON SEAL of |
| |
| XXXXXX (HONG KONG) LIMITED | ||
| and SIGNED BY Xxx Xxxxx Lok, | ||
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/s/ Xxx Xxxxx Lok |
||
| [Signature of Director] | ||
| Director | ||
|
in the presence of: |
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/s/ Xxxxxx Xxx |
||
| [Signature of Witness] | ||
| Name of Witness: Address of Witness: Occupation of Witness: |
Xxxxxx Xxx 40-50 Tsing Yi Road, Tsing Yi Island, N.T., Hong Kong Administrative Specialist |
[Signature Page to Supplemental Indenture]
IN WITNESS WHEREOF, Xxxxxx (Hong Kong) Limited has caused this Supplemental Indenture to be duly executed and delivered as a deed, as of the date first above written.
XXXXXX (HONG KONG) LIMITED
| SEALED with the COMMON SEAL of XXXXXX (HONG KONG) LIMITED and SIGNED BY Xxx Xxxxxxxx, |
| |
| /s/ Xxx Xxxxxxxx |
||
| [Signature of Director] | ||
| Director | ||
|
in the presence of: |
||
| /s/ Xxxxxx Xxxxxx |
||
| [Signature of Witness] |
| Name of Witness: Address of Witness: Occupation of Witness: |
Xx. Xxxxxx Xxxxxx Xxxxxx Europe GmbH, Xxxxxx, Switzerland Associate General Counsel - Europe |
[Signature Page to Supplemental Indenture]
Given the common seal of
XXXXXX MATERIALS IRELAND
| /s/ Xxxxxxxxx Xxxxxx |
| Xxxxxxxxx Xxxxxx |
| Director |
| /s/ Xxxxxx Xxxx |
| Xxxxxx Xxxx |
| Director |
[Signature Page to Supplemental Indenture]
| XXXXXX BELGIUM BVBA, as a Guarantor | ||||
| By: | /s/ Xxxxxx Van Domburg | |||
| Name: | Xxxxxx Van Domburg | |||
| Title: | Director | |||
[Signature Page to Supplemental Indenture]
| XXXXXX UK LIMITED, as a Guarantor | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Supplemental Indenture]
| Executed by Xxxxxx Australia Pty Ltd in accordance with section 127 of the Corporations Xxx 0000 (Cth): |
||||||
| /s/ Xxxx Xxxxxxx Xxxxxx | /s/ Xxx Xxxxxx |
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| Signature of director | Signature of director | |||||
| Xxxx Xxxxxxx Xxxxxx | Xxx Xxxxxx |
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| Full name of director | Full name of director | |||||
[Signature Page to Supplemental Indenture]
| XXXXXX CANADA ULC, as a Guarantor | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer | |||
[Signature Page to Supplemental Indenture]
| ||||
| The COMMON SEAL of | ) | |||
| XXXXXX HOLDINGS ASIA PTE. LTD. | ) | |||
| was hereunto affixed in accordance with its | ) | |||
| Articles of Association: | ) | |||
| /s/ Cai Xxxxxx |
| Xxx Dongyu |
| Director |
|
| Secretary |
[Signature Page to Supplemental Indenture]
| ||||
| The COMMON SEAL of ) | ||||
| XXXXXX SINGAPORE PTE. LTD. ) | ||||
| was hereunto affixed in accordance with its ) | ||||
| Articles of Association: ) | ||||
| /s/ Cai Xxxxxx |
| Xxx Dongyu |
| Director |
|
|
| Secretary |
[Signature Page to Supplemental Indenture]
| XXXXXX EUROPE GmbH, | ||
| as a Guarantor | ||
| By: | /s/ Xxxxxx Xxxx | |
| Name: Xxxxxx Xxxx | ||
| Title: Manager | ||
[Signature Page to Supplemental Indenture]
| XXXXXX SVERIGE AB, | ||
| as a Guarantor | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | ||
| Title: Ordinary Member | ||
[Signature Page to Supplemental Indenture]
| WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: Xxxx Xxxxxxxxx | ||
| Title: Vice President | ||
[Signature Page to Supplemental Indenture]
