0001519061 false 00-0000000 0001519061 2023-09-08 2023-09-08 iso4217:USD xbrli:shares iso4217:USD xbrli:shares

 

 

 

UNITED STATES 

SECURITIES AND EXCHANGE COMMISSION 

Washington, D.C. 20549

 

 

 

FORM 8-K

 

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) 

of The Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): September 8, 2023

 

 

 

Trinseo PLC 

(Exact name of registrant as specified in its charter)

 

 

 

Ireland   001-36473   N/A
(State or other jurisdiction
of incorporation or organization)
  (Commission
File Number)
  (I.R.S. Employer
Identification Number)

 

440 East Swedesford Road, Suite 301, 

Wayne, Pennsylvania 19087 

(Address of principal executive offices, including zip code)

 

(610 )240-3200 

(Telephone number, including area code)

 

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of Each Class Trading symbol(s) Name of Each Exchange on which registered
Ordinary Shares, par value $0.01 per share TSE New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

 

 

 

 

ITEM 1.01 Entry Into a Material Definitive Agreement

 

Credit Agreement

 

On September 8, 2023 (the “Closing Date”), Trinseo Luxco Finance SPV S.á r.l., (the “Lux Borrower”), an indirect wholly owned subsidiary of Trinseo PLC (the “Company”), and Trinseo NA Finance SPV LLC, an indirect wholly owned subsidiary of the Company (the “Co-Borrower” and, together with the Lux Borrower, the “Borrowers”) entered into a Credit Agreement (the “Credit Agreement”) as co-borrowers, with Trinseo Luxco S.á r.l. (“Parent”) and Trinseo NA Finance LLC (together with Parent, the “Guarantors”), the lenders party thereto from time to time, and Alter Domus (US) LLC, as administrative agent and collateral agent.

 

The Credit Agreement provides for a senior secured term loan facility of $1,077 million (the “Term Loan Facility”, and the loans thereunder, the “Term Loans”). The Term Loans were used to fund (a) the 2023 Term Loans (as defined below) in an aggregate amount equal $948 million and (b) an intercompany loan and equity contributions of $125 million which amounts were used to fund the voluntary prepayment of the 2018 Refinancing Term Loans and partial redemption of the 2025 Senior Notes (as further discussed below).

 

The Borrowers’ obligations under the Term Loan Facility are guaranteed by the Guarantors and, on a post-closing basis, will be guaranteed on a limited basis by certain other subsidiaries of the Parent that do not guaranty the obligations under the Existing Credit Agreement (as defined below) (such guarantors, the “Additional Guarantors, and such guaranty, the “Limited Guaranty”). The obligations under the Term Loan Facility are secured by equity pledges of 100% of the equity interests in each Borrower and substantially all assets of the Borrowers, which includes the Lux Borrower’s right, title and interest in the 2023 Term Loans. On a post-closing basis, the Borrowers’ will cause certain assets that are owned by the Additional Guarantors to be pledged as collateral to secure the obligations under the Limited Guaranty.

 

The Term Loan Facility bears interest at a rate per annum equal to Term SOFR (as defined in the Credit Agreement) plus 8.50%. The Term Loan Facility matures on May 3, 2028 and amortizes in equal quarterly installments of 0.25% of the initial principal amount, commencing on January 2, 2024.

 

The Borrowers may voluntarily prepay outstanding Term Loans at any time. The Borrowers are required to prepay outstanding Term Loans: (a) with the net cash proceeds of a sale of Co-Borrower’s 50% equity interests in Americas Styrenics LLC (“AmSty”); (b) with the proceeds of certain dividends received from AmSty (excluding ordinary course quarterly dividends based on the net profits of AmSty); (c) if the First Lien Net Leverage Ratio (as defined in the Credit Agreement) exceeds 3.50:1.00, with any interest or amortization payments that the Lux Borrower receives on account of the 2023 Term Loans that are not used to pay interest or amortization payments under the Term Loan Facility; (d) with the proceeds of any voluntary or mandatory prepayment received by Lux Borrower on account of the 2023 Term Loans; and (e) with the proceeds of non-permitted indebtedness. The Additional Guarantors are required to make a payment under the Limited Guaranty at par with the net cash proceeds of any sale of assets of the Additional Guarantors or the sale of any equity interests of such Additional Guarantors. All voluntary prepayments of the Term Loans, and mandatory prepayments of the Term Loans (i) with the proceeds of non-permitted indebtedness and (ii) with proceeds that Lux Borrower receives from any voluntary prepayment of the 2023 Term Loans or from any mandatory prepayment of the 2023 Term Loans with the proceeds of non-permitted indebtedness, are subject to prepayment premiums as follows: (a) prior to the 18 month anniversary of the Closing Date, a customary make-whole amount; (b) from and after the 18 month anniversary and prior to the 30 month anniversary of the Closing Date, 3.00%; (c) from and after the 30 month anniversary and prior to the 42 month anniversary of the Closing Date, 2.00%; and (d) after the 42 month anniversary of the Closing Date, at par.

 

All mandatory prepayments with the net cash proceeds from the sale of Co-Borrower’s interest in AmSty or with the proceeds of certain dividends received from AmSty (excluding ordinary course quarterly dividends based on the net profits of AmSty) prior to the 36 month anniversary of the Term Loan Facility are subject to prepayment premiums as follows: (i) prior to the 12 month anniversary of the Closing Date, a customary make-whole amount; (ii) from and after the 12 month anniversary and prior to the 24 month anniversary of the Closing Date, 3.00% of the aggregate principal amount of the Term Loans so prepaid; (iii) from the 24 month anniversary and prior to the 36 month anniversary of the Closing Date, 2.00% of the aggregate principal amount of the Term Loans so prepaid; and (iv) after the 36 month anniversary of the Closing Date, at par.

 

The Term Loan Facility contains certain events of default, including (i) relating to a change of control or (ii) failure to maintain at least $100,000,000 of Liquidity (as defined in the Credit Agreement) at the end of any calendar month, and (iii) a cross default to the Existing Credit Agreement. If an event of default occurs, the Term Lenders will be entitled to take various actions, including the acceleration of amounts due under the Term Loan Facility.

 

The foregoing description of the material terms of the Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the Credit Agreement, a copy of which is filed as Exhibit 10.1 hereto and incorporated by reference herein.

 

 

 

 

2023 Incremental and Refinancing Amendment to Existing Credit Agreement

 

On the Closing Date, Trinseo Materials Operating S.C.A., an indirect wholly owned subsidiary of the Company (the “Trinseo Lead Borrower”), Trinseo Materials Finance, Inc., an indirect wholly owned subsidiary of the Company (together with Trinseo Lead Borrower, the “Trinseo Borrowers”), Trinseo Holding S.á r.l., an indirect wholly owned subsidiary of the Company (“Holdings”) and Deutsche Bank AG New York Branch, as administrative agent and collateral agent and Lux Borrower, in its capacity as the 2023 Refinancing Term Loan Lender and the 2023 Incremental Term Loan Lender (each as defined in the 2023 Term Loan Amendment), entered into an amendment (the “2023 Term Loan Amendment”) to that certain Credit Agreement, dated as of September 6, 2017 (as previously amended prior to the Closing Date, the “Existing Credit Agreement”), by and among Holdings, the Trinseo Borrowers, the guarantors party thereto, the lenders party thereto, and Deutsche Bank AG New York Branch, as administrative agent and collateral agent, pursuant to which the Trinseo Borrowers borrowed $948 million of new term loans under a new term loan facility with Lux Borrower as lender, established under the Existing Credit Agreement (the “ 2023 Term Loan Facility” and, the loans thereunder, the “2023 Term Loans”).

 

The proceeds of the 2023 Term Loans were used, together with cash on hand, to (x) repay in full the outstanding principal amount of, and all accrued and unpaid interest on, the 2018 Refinancing Term Loans (as defined in the Existing Credit Agreement) and (y) to redeem $385,000,000 of the Trinseo Borrowers’ 5.375% Notes due 2025 (the “2025 Senior Notes”), issued pursuant to that certain Indenture dated as of August 29, 2017 by and among the Trinseo Borrowers, the guarantors from time to time party thereto and The Bank of New York Mellon, as the Trustee.

 

The Trinseo Borrowers’ obligations under the 2023 Term Loan Facility are secured on a pari passu basis by the same assets that secure the obligations under the Existing Credit Agreement. The Trinseo Borrowers’ obligations under the 2023 Term Loan Facility are guaranteed on an equal priority basis by the same guarantors that guarantee the obligations under the Existing Credit Agreement.

 

The 2023 Term Loans bear interest at a rate per annum equal to Adjusted Term SOFR (as defined in the Existing Credit Agreement) plus 9.66%. The 2023 Term Loan Facility matures on May 3, 2030 and amortizes in equal quarterly installments of 0.25% of the initial principal amount, commencing for the quarter ending December 31, 2023.

 

All voluntary prepayments of the 2023 Term Loans and all mandatory prepayments of the 2023 Term Loans with the proceeds of non-permitted indebtedness are subject to a yield protection fee as follows: (i) prior to the 18 month anniversary of the Closing Date, the Make-Whole Amount (as defined in the Existing Credit Agreement), (ii) from and after the 18 month anniversary and prior to the 30 month anniversary of the Closing Date, 17.01%; (iii) from and after the 30 month anniversary and prior to the 42 month anniversary of the Closing Date, 15.88%; (iv) from and after the 42 month anniversary of the Closing Date and prior to the 62 month anniversary of the Closing Date, 13.60%, and (v) from and after the 62 month anniversary of the Closing Date, 0.00%.

 

The representations, warranties, affirmative covenants, negative covenants and events of default applicable to the 2023 Term Loans are substantially the same representations, warranties, affirmative covenants, negative covenants and events of default applicable to the term loans under the Existing Credit Agreement.

 

The foregoing description of the material terms of the 2023 Term Loan Facility does not purport to be complete and is qualified in its entirety by reference to the complete terms and conditions of the 2023 Term Loan Amendment, a copy of each of which is filed herewith as Exhibit 10.2 and is incorporated herein by reference.

 

ITEM 2.03 Creation of a Direct Financial Obligation

 

The information set forth under Item 1.01 above is incorporated by reference into this Item 2.03.

 

ITEM 8.01 Other Events

 

On August 10, 2023, the Company reported that the Trinseo Borrowers issued a notice of conditional partial redemption to the holders of the 2025 Senior Notes, which has not been withdrawn. On the Closing Date, the condition set forth in the notice of conditional partial redemption was satisfied and $385,000,000 of principal amount of the 2025 Senior Notes were redeemed.

 

A copy of the Company’s press release with respect to the transactions described in this report is attached hereto as Exhibit 99.1, which is incorporated by reference herein.

 

 

 

 

Cautionary Note on Forward-Looking Statements

 

This Current Report may contain forward-looking statements including, without limitation, statements concerning plans, objectives, goals, projections, forecasts, strategies, future events or performance, and underlying assumptions and other statements, which are not statements of historical facts or guarantees or assurances of future performance. Forward-looking statements may be identified by the use of words like “expect,” “anticipate,” “believe,” “intend,” “forecast,” “outlook,” “will,” “may,” “might,” “see,” “tend,” “assume,” “potential,” “likely,” “target,” “plan,” “contemplate,” “seek,” “attempt,” “should,” “could,” “would” or expressions of similar meaning. Forward-looking statements reflect management’s evaluation of information currently available and are based on the Company’s current expectations and assumptions regarding its business, the economy, its current indebtedness, and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict. Factors that might cause future results to differ from those expressed by the forward-looking statements include, but are not limited to, our ability to successfully implement proposed restructuring initiatives, including the closure of certain plants and product lines, and to successfully generate cost savings and increase profitability; our ability to successfully execute our business and transformation strategy; increased costs or disruption in the supply of raw materials; increased energy costs; compliance with laws and regulations impacting our business; conditions in the global economy and capital markets; our ability to meet the covenants under our existing indebtedness; our ability to successfully investigate and remediate chemical releases on or from our sites, make related capital expenditures, reimburse third-party cleanup costs or settle potential regulatory penalties or other claims and those discussed in our Annual Report on Form 10-K, under Part I, Item 1A -”Risk Factors” and elsewhere in our other reports, filings and furnishings made with the U.S. Securities and Exchange Commission from time to time. As a result of these or other factors, the Company’s actual results, performance or achievements may differ materially from those contemplated by the forward-looking statements. Therefore, we caution you against relying on any of these forward-looking statements. The forward-looking statements included in this Current Report are made only as of the date hereof. The Company undertakes no obligation to publicly update or revise any forward-looking statement as a result of new information, future events or otherwise, except as otherwise required by law.

 

ITEM 9.01 Financial Statements and Exhibits

 

(d)            Exhibits.

 

  Exhibit Description
   
  10.1 Credit Agreement, dated as of September 8, 2023, among Trinseo Luxco SARL, Trinseo NA Finance LLC, Trinseo Luxco Finance SPV SARL, Trinseo NA Finance SPV LLC, the guarantors party thereto from time to time, the lenders party thereto from time to time and Alter Domus (US) LLC, as administrative agent and collateral agent.
   
  10.2 2023 Incremental and Refinancing Amendment, dated as of September 8, 2023, among Trinseo Holding SARL, Trinseo Ireland Holdings Limited, Trinseo Materials Operating S.C.A., Trinseo Materials Finance, Inc. the guarantors party thereto from time to time, the lenders party thereto from time to time and Deutsche Bank AG New York Branch, as administrative agent and collateral agent.
   
  99.1 Press Release dated September 8, 2023
   
  104 Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

 

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

TRINSEO PLC 

     
  By: /s/ Angelo Chaclas
  Name: Angelo Chaclas
  Title: Senior Vice President and Chief Legal Officer
Date:  September 8, 2023    

 

 

 

 

 

Exhibit 10.1

 

 

 

CREDIT AGREEMENT

 

Dated as of September 8, 2023,

 

among

 

TRINSEO LUXCO S.À R.L.,
as Parent,

 

Trinseo NA Finance LLC,
as Holdings,

 

TRINSEO LUXCO FINANCE SPV S.À R.L.,
as the Lead Borrower,

 

Trinseo NA Finance SPV LLC,
as the Co-Borrower,

 

THE GUARANTORS PARTY HERETO FROM TIME TO TIME,

 

THE LENDERS PARTY HERETO FROM TIME TO TIME,

 

and

 

ALTER DOMUS (US) LLC,
as Administrative Agent and Collateral Agent

 

 

 

 

 

 

Table of Contents

 

    Page
     
Article I Definitions and Accounting Terms 2
Section 1.01 Defined Terms 2
Section 1.02 Luxembourg Terms 37
Section 1.03 Reserved 38
Section 1.04 Other Interpretive Provisions 38
Section 1.05 Accounting Terms 38
Section 1.06 Rounding 39
Section 1.07 References to Agreements, Laws, Etc. 39
Section 1.08 Times of Day 39
Section 1.09 Timing of Payment of Performance 39
Section 1.10 Reserved 39
Section 1.11 Currency Equivalents 39
Section 1.12 Reserved 40
Section 1.13 Reserved 40
Section 1.14 Reserved 40
Section 1.15 Rates 40
     
Article II The Commitments and Credit Extensions 40
Section 2.01 Term Loans 40
Section 2.02 Borrowings, Conversions and Continuations of Loans 41
Section 2.03 Reserved 42
Section 2.04 Reserved 42
Section 2.05 Prepayments 42
Section 2.06 Termination or Reduction of Commitments 46
Section 2.07 Repayment of Loans 47
Section 2.08 Interest 47
Section 2.09 Fees 48
Section 2.10 Computation of Interest and Fees 48
Section 2.11 Evidence of Indebtedness 49
Section 2.12 Payments Generally 49
Section 2.13 Sharing of Payments 51
Section 2.14 Reserved 52
Section 2.15 Reserved 52
Section 2.16 Incremental Credit Extensions 52
Section 2.17 Reserved 53
Section 2.18 Reserved 53
Section 2.19 Defaulting Lenders 53
Section 2.20 Borrower Obligations Joint and Several 54
Section 2.21 Benchmark Replacement Setting 55
Section 2.22 Tax Treatment 56
     
Article III Taxes, Increased Costs Protection and Illegality 56
Section 3.01 Taxes 56
Section 3.02 Illegality 61
Section 3.03 Inability to Determine Rates 61
Section 3.04 Increased Cost and Reduced Return; Capital Adequacy 62
Section 3.05 Funding Losses 63

 

(i)

 

 

Section 3.06 Matters Applicable to All Requests for Compensation 63
Section 3.07 Replacement of Lenders under Certain Circumstances 65
Section 3.08 Survival 66
     
Article IV Conditions Precedent to Credit Extensions 66
Section 4.01 Conditions Precedent to Funding of Tranche A Term Loans 66
Section 4.02 Conditions Precedent to Funding of Tranche B Term Loans 69
Section 4.03 All Credit Events 69
     
Article V Representations and Warranties 70
Section 5.01 Existence, Qualification and Power; Compliance with Laws 70
Section 5.02 Authorization; No Contravention 70
Section 5.03 Governmental Authorization; Other Consents 71
Section 5.04 Binding Effect 71
Section 5.05 Financial Statements; No Material Adverse Effect 71
Section 5.06 Litigation 72
Section 5.07 Ownership of Property; Liens 72
Section 5.08 Environmental Matters 72
Section 5.09 Taxes 72
Section 5.10 ERISA Compliance 73
Section 5.11 Subsidiaries; Equity Interests 73
Section 5.12 Margin Regulations; Investment Company Act 73
Section 5.13 Disclosure 74
Section 5.14 Designation 74
Section 5.15 Intellectual Property; Licenses, Etc 74
Section 5.16 Solvency 74
Section 5.17 Subordination of Junior Financing 74
Section 5.18 Collateral Documents; Valid Liens 74
Section 5.19 Centre of Main Interest 75
Section 5.20 Pensions Act 75
Section 5.21 Reserved 75
Section 5.22 USA Patriot Act, Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions 75
Section 5.23 Luxembourg Specific Representations 76
     
Article VI Affirmative Covenants 76
Section 6.01 Financial Statements 76
Section 6.02 Certificates; Other Information 77
Section 6.03 Notices 78
Section 6.04 Payment of Taxes 78
Section 6.05 Preservation of Existence, Etc 79
Section 6.06 Maintenance of Properties 79
Section 6.07 Maintenance of Insurance 79
Section 6.08 Compliance with Laws 80
Section 6.09 Books and Records 80
Section 6.10 Inspection Rights 80
Section 6.11 Additional Collateral 80
Section 6.12 Reserved 80

 

(ii)

 

 

Section 6.13 Reserved 81
Section 6.14 Further Assurances 81
Section 6.15 Reserved 81
Section 6.16 Reserved 81
Section 6.17 Use of Proceeds 81
Section 6.18 Post-Closing Actions 81
Section 6.19 Compliance with Anti-Corruption Laws 81
Section 6.20 Maintenance of Ratings 81
Section 6.21 Certification under Trinseo Credit Agreement 81
     
Article VII Negative Covenants 82
Section 7.01 Liens 82
Section 7.02 Subsidiaries 83
Section 7.03 Indebtedness 83
Section 7.04 Fundamental Changes 84
Section 7.05 Dispositions 84
Section 7.06 Restricted Payments 84
Section 7.07 Certain Undertakings Relating to Separateness 85
Section 7.08 Transactions with Affiliates 87
Section 7.09 Burdensome Agreements 87
Section 7.10 Americas Styrenics 87
Section 7.11 Trinseo Credit Agreement 87
Section 7.12 Accounting Changes 87
Section 7.13 Prepayments, Etc. of Indebtedness 88
     
Article VIII Events of Default and Remedies 88
Section 8.01 Events of Default 88
Section 8.02 Remedies Upon Event of Default 91
Section 8.03 Application of Funds 91
Section 8.04 Administrative Delay 92
     
Article IX Administrative Agent and Other Agents 92
Section 9.01 Appointment and Authorization of Agents 92
Section 9.02 Delegation of Duties 93
Section 9.03 Liability of Agents 93
Section 9.04 Reliance by Agents 94
Section 9.05 Notice of Default 94
Section 9.06 Credit Decision; Disclosure of Information by Agents 95
Section 9.07 Indemnification of Agents 95
Section 9.08 Merger or Consolidation 96
Section 9.09 Successor Agents 96
Section 9.10 Administrative Agent May File Proofs of Claim 97
Section 9.11 Collateral and Guaranty Matters 98
Section 9.12 Certain Rights of Agent 98
Section 9.13 Appointment of Supplemental Agents 99
Section 9.14 Force Majeure 100
Section 9.15 Parallel Debt owed to Collateral Agent 100
Section 9.16 No Discretion 101
Section 9.17 Lead Borrower Indemnity Claims 101

 

(iii)

 

 

Article X Miscellaneous 102
Section 10.01 Amendments, Etc. 102
Section 10.02 Notices and Other Communications; Facsimile Copies 104
Section 10.03 No Waiver; Cumulative Remedies 104
Section 10.04 Attorney Costs and Expenses 105
Section 10.05 Indemnification 106
Section 10.06 Payments Set Aside 106
Section 10.07 Successors and Assigns 107
Section 10.08 Confidentiality 112
Section 10.09 Setoff 112
Section 10.10 Interest Rate Limitation 113
Section 10.11 Counterparts 113
Section 10.12 Integration 113
Section 10.13 Survival of Representations and Warranties 113
Section 10.14 Severability 114
Section 10.15 GOVERNING LAW 114
Section 10.16 WAIVER OF RIGHT TO TRIAL BY JURY 115
Section 10.17 Binding Effect 115
Section 10.18 USA Patriot Act 116
Section 10.19 No Advisory or Fiduciary Responsibility 116
Section 10.20 Judgment Currency 117
Section 10.21 Reserved 117
Section 10.22 Reserved 117
Section 10.23 Certain ERISA Matters 117
     
Article XI Guarantee 119
Section 11.01 The Guarantee 119
Section 11.02 Obligations Unconditional 120
Section 11.03 Reinstatement 121
Section 11.04 Subrogation; Subordination 121
Section 11.05 Remedies 121
Section 11.06 Instrument for the Payment of Money 121
Section 11.07 Continuing Guarantee 121
Section 11.08 General Limitation on Guarantee Obligations 122
Section 11.09 Reserved 122
Section 11.10 Reserved 122
Section 11.11 Reserved 122
Section 11.12 Reserved 122
Section 11.13 Reserved 122
Section 11.14 Reserved 122
Section 11.15 Release of Guarantors 122
Section 11.16 Right of Contribution 122
Section 11.17 Reserved 122
Section 11.18 Reserved 122
Section 11.19 Reserved 122
Section 11.20 Acknowledgment and Consent to Bail-In of Affected Financial Institutions 122

 

(iv)

 

 

SCHEDULES    
     
Schedule 1.01A -- Tranche A Term Loan Commitments
Schedule 1.01B -- Tranche B Term Loan Commitments
Schedule 1.01C -- Triggering Events
Schedule 5.11 -- Subsidiaries; Equity Interests
Schedule 6.18 -- Post-Closing Actions
Schedule 6.21 -- Certification under Trinseo Credit Agreement
Schedule 7.07(o) -- Independent Managers
Schedule 10.02 -- Notices and Other Communications
     
EXHIBITS    
     
Form of    
     
Exhibit A -- Committed Loan Notice
Exhibit B -- Term Note
Exhibit C -- Assignment and Assumption
Exhibit D -- Pledge and Security Agreement
Exhibit E -- Intercompany Note
Exhibit F -- Intercompany Parent Note
Exhibit G -- Solvency Certificate

 

(i)

 

 

CREDIT AGREEMENT

 

This CREDIT AGREEMENT is entered into as of September 8, 2023 (as may be amended, supplemented and/or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), among TRINSEO LUXCO S.À R.L., a private limited liability company (société à responsabilité limitée), incorporated and existing under the laws of Luxembourg, having its registered office at 26, boulevard Royal, L-2449 Luxembourg, registered with the R.C.S. Luxembourg under number B153577 (“Parent”), Trinseo NA Finance LLC, a Delaware limited liability company (“Holdings”), TRINSEO LUXCO FINANCE SPV S.À R.L., a private limited liability company (société à responsabilité limitée), incorporated and existing under the laws of Luxembourg, having its registered office at 26, boulevard Royal, L-2449 Luxembourg, registered with the R.C.S. Luxembourg under number B279526 (the “Lead Borrower”), Trinseo NA Finance SPV LLC, a Delaware limited liability company (the “Co-Borrower”, together with the Lead Borrower, the “Borrowers” and each, a “Borrower”) the Guarantors party hereto from time to time, the Lenders party hereto from time to time (collectively, the “Lenders” and individually, a “Lender”) and ALTER DOMUS (US) LLC, as Administrative Agent and Collateral Agent.

 

PRELIMINARY STATEMENTS

 

WHEREAS, the Borrowers requested that the Lenders under this Agreement as of the Closing Date extend credit to the Borrowers in an aggregate principal amount of $1,077,251,291 in the form of (i) Tranche A Term Loans (as herein defined) in an aggregate principal amount of $128,865,980 and (ii) Tranche B Term Loans (as herein defined) in an aggregate principal amount of $948,385,311, in each case to be funded on the Closing Date subject to the terms and conditions of this Agreement; and

 

WHEREAS, concurrently herewith, the Lead Borrower, as lender, Deutsche Bank AG New York Branch, as the administrative agent for the lenders thereunder, Trinseo Lead Borrower and Trinseo Co-Borrower (each as defined herein) will enter into that certain 2023 Incremental and Refinancing Amendment to the Trinseo Credit Agreement (as defined herein) (the “2023 Incremental and Refinancing Amendment”), dated as of the date hereof, pursuant to which the Lead Borrower will extend credit to the Trinseo Lead Borrower and the Trinseo Co-Borrower in the form of (i) incremental term loans (which shall constitute Incremental Term Loans (as defined in the Trinseo Credit Agreement) under Section 2.16 of the Trinseo Credit Agreement) in an original aggregate principal amount equal to $268,041,238 (the “2023 Incremental Term Loans”) and (ii) refinancing term loans (which constitute Refinancing Term Loans (as defined in the Trinseo Credit Agreement) under Section 2.17 of the Trinseo Credit Agreement) in an original aggregate principal amount equal to $680,344,073 (the “2023 Refinancing Term Loans”).

 

NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

 

 

 

Article I

 

Definitions and Accounting Terms

 

Section 1.01      Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

 

2023 Incremental Term Loans” has the meaning assigned to such term in the preliminary statements.

 

2023 Refinancing Term Loans” has the meaning assigned to such term in the preliminary statements.

 

2023 Incremental and Refinancing Amendment” has the meaning assigned to such term in the preliminary statements.

 

2023 Term Loan Lender” has the meaning set forth in Section 9.17.

 

2025 Senior Notes” means senior unsecured notes due 2025 issued pursuant to the 2025 Senior Notes Indenture in the aggregate original principal amount of $500,000,000.

 

2025 Senior Notes Indenture” means the Indenture, dated as of August 29, 2017, by and among the Trinseo Lead Borrower, the Trinseo Co-Borrower and The Bank of New York Mellon, as trustee, in respect of 5.375% Notes due 2025, as may be amended, modified, supplemented, replaced or refinanced to the extent not prohibited by this Agreement.

 

2029 Senior Notes” means senior unsecured notes due 2029 issued pursuant to the 2029 Senior Notes Indenture in the aggregate original principal amount of $450,000,000.

 

2029 Senior Notes Indenture” means the Indenture, dated as of March 24, 2021, by and among the Trinseo Lead Borrower, the Trinseo Co-Borrower and The Bank of New York Mellon, as trustee, in respect of 5.125% Notes due 2029, as may be amended, modified, supplemented, replaced or refinanced to the extent not prohibited by this Agreement.

 

Administrative Agent” means ALTER DOMUS (US) LLC, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

 

Administrative Agent’s Office” means the Administrative Agent’s address and account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify the Lead Borrower and the Lenders.

 

Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

 

2

 

 

Agent-Related Persons” means the Agents, together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

 

Agent Fee Letter” means that certain fee letter, dated as of the date hereof, by and between the Borrowers and the Administrative Agent, as amended, amended and restated, supplemented or otherwise modified from time to time.

 

Agents” means, collectively, the Administrative Agent, the Collateral Agent and the Supplemental Agents (if any).

 

Aggregate Commitments” means the aggregate Tranche A Term Loan Commitments and Tranche B Term Loan Commitments of all the Lenders.

 

Agreement” means this Credit Agreement, as the same may be amended, supplemented or otherwise modified from time to time.

 

All-In Yield” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, OID, upfront fees, Term SOFR or Base Rate floor, or otherwise, in each case, incurred or payable by the applicable Borrower generally to all lenders of such Indebtedness; provided that OID and upfront fees shall be equated to interest rate assuming a 4-year average life to maturity on a straight line basis (e.g. 100 basis points of original issue discount equals 25 basis points of interest rate margin); and provided, further, that “All-In Yield” shall not include amendment fees, arrangement fees, structuring fees, ticking fees, unused line fees, commitment fees, underwriting fees and other similar fees not paid generally to all lenders in the primary syndication of such Indebtedness.

 

Americas Styrenics” means Americas Styrenics LLC, a Delaware limited liability company.

 

Annual Financial Statements” means the audited consolidated balance sheets and related statements of comprehensive income, shareholders’ equity and cash flows of Americas Styrenics for the fiscal year ended December 31, 2022.

 

Annual Threshold” has the meaning set forth in Section 2.05(b)(iii).

 

Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction from time to time concerning or relating to bribery or corruption applicable to Holdings or its Subsidiaries by virtue of such Person being organized or operating in such jurisdiction.

 

Applicable Margin” means, subject to Section 2.08(c), a percentage per annum equal to, with respect to the Term Loans maintained as (i) Base Rate Loans, 7.50% and (ii) SOFR Loans, 8.50%.

 

Notwithstanding the foregoing, the Applicable Margin in respect of any Class of Incremental Term Commitments and any Class of Incremental Term Loans established after the Closing Date shall be the applicable percentages per annum set forth in the relevant Incremental Amendment.

 

3

 

 

Applicable Sale Premium” means, with respect to any prepayment required under Section 2.05(b)(ii) and (iii) that occurs (a) prior to the 12 month anniversary of the Closing Date, the Make-Whole Amount, (b) from and after the 12 month anniversary of the Closing Date and prior to the 24 month anniversary of the Closing Date, an amount equal to 3.00% of the aggregate principal amount of the Term Loans subject to such Applicable Prepayment Premium Event on such date, (c) from and after the 24 month anniversary of the Closing Date and prior to the 36 month anniversary of the Closing Date, an amount equal to 2.00% of the aggregate principal amount of the Term Loans subject to such Applicable Prepayment Premium Event on such date, and (d) from and after the 36 month anniversary of the Closing Date, an amount equal to 0.00% of the aggregate principal amount of the Term Loans subject to such Applicable Prepayment Premium Event on such date.

 

Applicable Prepayment Premium” means, with respect to any Applicable Prepayment Premium Event that occurs (a) prior to the 18 month anniversary of the Closing Date, the Make-Whole Amount, (b) from and after the 18 month anniversary of the Closing Date and prior to the 30 month anniversary of the Closing Date, an amount equal to 3.00% of the aggregate principal amount of the Term Loans subject to such Applicable Prepayment Premium Event on such date, (c) from and after the 30 month anniversary of the Closing Date and prior to the 42 month anniversary of the Closing Date, an amount equal to 2.00% of the aggregate principal amount of the Term Loans subject to such Applicable Prepayment Premium Event on such date, and (d) from and after the 42 month anniversary of the Closing Date, an amount equal to 0.00% of the aggregate principal amount of the Term Loans subject to such Applicable Prepayment Premium Event on such date.

 

Applicable Prepayment Premium Event” means (a) any repayment of all, or any part, of the principal amount of the Term Loans, including any voluntary prepayment, mandatory repayment (other than a repayment under Section 2.05(b)(ii), Section 2.05(b)(iii), Section 2.05(b)(iv)(A) or Section 2.05(b)(v) or any payment at maturity, in each case, whether before or after (i) the occurrence of a Default or an Event of Default or (ii) the commencement of any proceeding with respect to any Borrower or Guarantor under any Debtor Relief Law and notwithstanding any acceleration (for any reason) of the Term Loans; (b) the acceleration of all of the Term Loans for any reason, including, but not limited to, acceleration following or pursuant to an Event of Default, including as a result of the commencement of a proceeding under any Debtor Relief Law (including, without limitation, pursuant to Section 8.01(f)); (c) the satisfaction, release, payment, redemption, restructuring, reorganization, replacement, reinstatement, defeasance or compromise of any of the Term Loans in any proceeding under any Debtor Relief Law, foreclosure (whether by power of judicial proceeding or otherwise) or deed in lieu of foreclosure or the making of a distribution of any kind in any proceeding under any Debtor Relief Law to the Lenders (whether directly or indirectly, including through the Administrative Agent or Collateral Agent or any other distribution agent), in full or partial satisfaction of the Term Loans; (d) the substantial consummation of any plan of reorganization with respect to any Borrower or Guarantor under any Debtor Relief Law; (e) the termination of any proceeding with respect to any Borrower or Guarantor under any Debtor Relief Law; and (f) the termination of this Agreement for any reason; provided, that in no event shall (i) a regularly scheduled amortization payment pursuant to Section 2.07(a) constitute an Applicable Prepayment Premium Event and (ii) a payment that is required to be made directly under the Limited Guaranty (or any voluntary prepayment made hereunder with the proceeds of an intercompany loan that is made by a Limited Guarantor to the Lead Borrower in lieu of such direct payment), in each case, as a result of the sale of any assets of, or the Equity Interests in, any Limited Guarantor, constitute an Applicable Prepayment Premium Event.

 

4

 

 

If an Applicable Prepayment Premium Event occurs under clause (b), (c) or (d) above, the entire outstanding principal amount of Term Loans shall be deemed to be subject to the Applicable Prepayment Premium Event on the date on which such Applicable Prepayment Premium Event occurs.

 

Approved Bank” has the meaning set forth in clause (c) of the definition of “Cash Equivalents”.

 

Approved Fund” means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.

 

Assignees” has the meaning set forth in Section 10.07(b).

 

Assignment and Assumption” shall mean an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.07), in the form of Exhibit C or any other form approved by the Administrative Agent and the Lead Borrower.

 

Attorney Costs” means and includes all reasonable, documented fees, expenses and disbursements of any law firm or other external legal counsel required to be reimbursed by any Loan Party pursuant to the terms of any Loan Document.

 

Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

 

Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.20(d).

 

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the Prime Rate in effect on such day and (c) Term SOFR for a one-month tenor in effect on such day plus 1.00% per annum; provided that in no event shall the Base Rate be less than the Floor. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or Term SOFR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate or Term SOFR, respectively.

 

5

 

 

Base Rate Loan” means a Term Loan that bears interest based on the Base Rate.

 

Base Rate Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.

 

Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.20(a).

 

Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Lead Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

 

Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Lead Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.

 

Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:

 

(a)            in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof); or

 

6

 

 

(b)            in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which all Available Tenors of such Benchmark (or the published component used in the calculation thereof) has been or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) have been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

 

For the avoidance of doubt, if such Benchmark is a term rate, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

 

(a)            a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof);

 

(b)            a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof); or

 

(c)            a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

 

7

 

 

For the avoidance of doubt, if such Benchmark is a term rate, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

 

Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).

 

Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.20 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.20.

 

Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

 

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

 

Board of Directors” means, for any Person, the board of directors, the general partner or other governing body of such Person or, if such Person does not have such a board of directors, general partner or other governing body and is owned or managed by a single entity, the Board of Directors or board of managers (conseil de gérance) of such entity, or, in either case, any committee thereof duly authorized to act on behalf of such Board of Directors. Unless otherwise provided, “Board of Directors” means the Board of Directors of the Lead Borrower.

 

Borrower” has the meaning provided in the introductory paragraph hereof.

 

Borrower Retained Prepayment Amounts” has the meaning set forth in Section 2.05(b)(viii).

 

Borrowing” means a Term Borrowing.

 

Business Day” means any day that is not a Saturday, Sunday or other day that is a legal holiday under the laws of the State of New York or Luxembourg or is a day on which banking institutions in such jurisdictions are authorized or required by Law to close, and in the case of a Business Day which relates to a SOFR Loan, a U.S. Government Securities Business Day.

 

8

 

 

Capitalized Leases” means all leases that have been or are required to be, in accordance with GAAP, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability in accordance with GAAP.

 

Cash Equivalents” means any of the following types of Investments:

 

(a)            Dollars held by the Loan Parties from time to time in the ordinary course of business;

 

(b)            readily marketable obligations issued or directly and fully Guaranteed or insured by the United States government or, in each case, any agency or instrumentality of thereof (provided that the full faith and credit of such country or such member state is pledged in support thereof), having maturities of not more than 24 months from the date of acquisition;

 

(c)            certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers’ acceptances issued by any commercial bank or trust company bank that is organized under the Laws of the United States, any state thereof or the District of Columbia or is the principal banking Subsidiary of a bank holding company organized under the Laws of the United States, any state thereof or the District of Columbia and is a member of the Federal Reserve System, and (b) has combined capital and surplus in excess of $100,000,000 (any such Persons being an “Approved Bank”), in each case with maturities not exceeding 24 months from the date of acquisition thereof;

 

(d)            repurchase obligations for underlying securities of the types described in clauses (b) and (c) entered into with any Approved Bank;

 

(e)            commercial paper and variable or fixed rate notes rated at the time of acquisition thereof at least “A-2” (or the equivalent thereof by S&P) or “P-2” (or the equivalent thereof by Moody’s) or carrying an equivalent rating by a Nationally Recognized Statistical Rating Organization (if both of the two named rating agencies cease publishing ratings of investments) or, if no rating is available in respect of the commercial paper, the issuer of which has an equivalent rating in respect of its long-term debt, and in any case maturing within 24 months after the date of acquisition thereof;

 

(f)            readily marketable direct obligations issued by any state, commonwealth or territory of the United States of America having an investment grade rating from either Moody’s or S&P (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) with maturities of not more than 24 months from the date of acquisition;

 

(g)            bills of exchange issued in the United States eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent); and

 

(h)            Investments with average maturities of 24 months or less from the date of acquisition in money market funds rated AAA– (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s.

 

9

 

 

Change of Control” shall be deemed to occur if:

 

(a)            Parent ceases to own one hundred percent (100%) of voting and economic interests of the Lead Borrower;

 

(b)            Holdings ceases to own one hundred percent (100%) of voting and economic interests of the Co-Borrower; or

 

(c)            a “change of control” (or similar event) shall occur in any document pertaining to any Incremental Equivalent Debt, the Trinseo Credit Agreement, the 2025 Senior Notes, the 2029 Senior Notes or, in each case, any refinancing thereof and such Indebtedness is in an aggregate outstanding principal amount in excess of the Threshold Amount.

 

Class”, when used with respect to Term Loans, refers to those of such Term Loans that have the same terms and conditions (without regard to differences in the Type of Term Loan, Interest Period, upfront fees, OID or similar fees paid or payable in connection with such Term Loan, or differences in tax treatment (e.g. “fungibility”)).

 

Closing Date” means September 8, 2023.

 

Co-Borrower” has the meaning provided in the introductory paragraph hereof.

 

Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations related thereto.

 

Collateral” means the “Collateral” as defined in the Security Agreement and all the “Collateral” or “Pledged Assets” as defined in any other Collateral Document and any other assets pledged pursuant to any Collateral Document; provided that in no event shall any Excluded Asset constitute Collateral.

 

Collateral Agent” means ALTER DOMUS (US) LLC, in its capacity as collateral agent or pledgee in its own name under any of the Loan Documents, or any successor collateral agent.

 

Collateral and Guarantee Requirement” means, at any time, the requirement that:

 

(a)            on the Closing Date, the Administrative Agent shall have received each Collateral Document to the extent required to be delivered on the Closing Date pursuant to Section 4.01 and Section 4.02, subject to the limitations and exceptions of this Agreement, duly executed by each Loan Party thereto;

 

(b)            the Obligations shall have been secured by a first-priority security interest in all the Equity Interests of the Borrowers;

 

(c)            the Obligations shall have been secured by a first-priority perfected security interest in, and Mortgages on, substantially all tangible and intangible assets of the Lead Borrower, the Co-Borrower and each Guarantor (including the Intercompany Parent Note, the Intercompany Note, other intercompany debt, accounts, inventory, equipment, investment property, contract rights, securities, patents, trademarks, other intellectual property, other general intangibles, cash, bank and securities deposit accounts, Real Property and proceeds of the foregoing), in each case, subject to exceptions and limitations otherwise set forth in this Agreement and the Collateral Documents (to the extent appropriate in the applicable jurisdiction);

 

10

 

 

(d)            subject to limitations and exceptions of this Agreement and the Collateral Documents, to the extent a security interest in and Mortgages on any Real Property is required under Section 6.11, Section 6.14 or Section 6.18 (each, a “Mortgaged Property”), the Administrative Agent shall have received (i) counterparts of a Mortgage with respect to such Mortgaged Property duly executed and delivered by the record owner of such property in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may reasonably deem necessary or desirable in order to create a valid and subsisting perfected Lien on the property and/or rights described therein in favor of the Administrative Agent for the benefit of the Secured Parties, and evidence that all filing and recording taxes, stamp duty and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (it being understood that if a mortgage tax or notary fee or registration fee or other similar tax will be owed or calculated on the entire amount of the indebtedness evidenced hereby, then the amount secured by the Mortgage shall be limited to 100% of the fair market value of the property at the time the Mortgage is entered into if such limitation results in such mortgage tax being calculated based upon such fair market value), (ii) other than with respect to Mortgaged Properties located in Luxembourg and any other jurisdiction, as reasonably determined by the Administrative Agent, in which title insurance is not customary, fully paid policies of title insurance (or marked-up title insurance commitments having the effect of policies of title insurance) on the Mortgaged Property that is owned in fee by the applicable Loan Party (the “Mortgage Policies”) issued by a title insurance company reasonably acceptable to the Administrative Agent in form and substance and in an amount reasonably acceptable to the Administrative Agent (not to exceed 100% of the fair market value of the real properties covered thereby), insuring the Mortgages to be valid subsisting Liens on the property described therein, free and clear of all Liens other than Liens permitted pursuant to Section 7.01 and other Liens reasonably acceptable to the Administrative Agent each of which shall (A) to the extent reasonably necessary, include such reinsurance arrangements (with provisions for direct access, if reasonably necessary) as shall be reasonably acceptable to the Collateral Agent, (B) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount) and (C) have been supplemented by such endorsements (or where such endorsements are not available, opinions of special counsel, architects or other professionals reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (which may include endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation public road access, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, and so-called comprehensive coverage over covenants and restrictions, in each case only if available after the applicable Loan Party uses commercially reasonable efforts), (iii) customary legal opinions (as determined with reference to any applicable jurisdiction), addressed to the Administrative Agent and the Secured Parties, reasonably acceptable to the Administrative Agent as to such matters as the Administrative Agent may reasonably request, and (iv) a completed “life of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each U.S. Mortgaged Property and, to the extent required, duly executed and acknowledged by the appropriate Loan Parties and evidence of flood insurance, in the event any improved parcel of U.S. Mortgaged Property is located in a special flood hazard area, which evidence shall comply with the Flood Laws and be otherwise reasonably satisfactory to the Administrative Agent;

 

11

 

 

(e)            each deposit account or other bank account or securities account of the Borrowers (other than any deposit account maintained by the Lead Borrower in Luxembourg strictly for administrative purposes with cash balance at the end of any day not to exceed the greater of $0 and such minimum amount as required to be maintained by the Luxembourg banking institution) be subject to a Control Agreement.

 

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary:

 

(i)            The foregoing definition shall not require and the Loan Documents shall not contain any requirements as to the creation or perfection of pledges of, security interests in, Mortgages on, or the obtaining of title insurance, surveys, abstracts or appraisals or taking other actions with respect to, Excluded Assets;

 

(ii)            The Administrative Agent in its discretion may grant extensions of time for the creation or perfection of security interests in, and Mortgages on, or obtaining of title insurance or taking other actions with respect to, particular assets (including extensions beyond the Closing Date) or any other compliance with the requirements of this definition where it reasonably determines, in consultation with the Lead Borrower, that the creation or perfection of security interests in, and Mortgages on, or obtaining of title insurance or taking other actions, or any other compliance with the requirements of this definition cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents; and

 

(iii)            Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in this Agreement and the Collateral Documents.

 

Collateral Documents” means, collectively, the Security Agreement, the Limited Guaranty, Limited Guarantor Security Agreement, the Luxembourg Share Pledge Agreement, the Luxembourg Receivables Pledge Agreement, the Intercompany Parent Note and accompanying allonge, any Intercompany Note and accompanying allonge, each Control Agreement, each of the Mortgages, collateral assignments, security agreements, pledge agreements, deeds of hypothecs, bonds, bond pledge agreements or other similar agreements delivered to the Administrative Agent pursuant to Sections 4.01, 4.02, 6.11 or 6.14, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent and/or the Collateral Agent (as relevant), in each case for the benefit of the Secured Parties.

 

12

 

 

Commitments” means, with respect to each Lender, such Lender’s Tranche A Term Loan Commitments and the Tranche B Term Loan Commitments.

 

Committed Loan Notice” means a written notice of (a) a Borrowing, (b) a conversion of Term Loans from one Type to the other, or (c) a continuation of SOFR Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A.

 

Compensation Period” has the meaning set forth in Section 2.12(c)(iv).

 

Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 3.05 and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

Consolidated EBITDA” has the meaning assigned to such term in the Trinseo Credit Agreement as in effect on the Closing Date (including all defined terms referred to therein), provided that, notwithstanding anything to the contrary in the Trinseo Credit Agreement, amounts permitted to be added back pursuant to clause (x) of the definition of “Consolidated EBITDA” shall be capped at 10% of pro forma Consolidated EBITDA (after giving effect to such add-back and all other permitted addbacks) for any period.

 

Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

 

Control Agreement” means, with respect to any deposit account or any securities account, an agreement, in form and substance reasonably satisfactory to the Collateral Agent, by and among the Collateral Agent, the financial institution or other Person at which such account is maintained and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to the Collateral Agent.

 

13

 

 

Corresponding Debt” has the meaning specified in Section 9.15(b).

 

Credit Extension” means each Borrowing.

 

Debtor Relief Laws” means the Bankruptcy Code of the United States and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, examinership, appointment of a business conciliator (conciliateur enterprises), insolvency, winding up, reorganization, or similar debtor relief Laws of the United States, Luxembourg or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

Declined Proceeds” has the meaning set forth in Section 2.05(b)(viii).

 

Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default; provided that the Borrowers shall not be in deemed to be in Default during the first day of any grace period set forth in Section 8.01(a).

 

Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Margin, if any, applicable to Base Rate Loans plus (c) 2.50% per annum; provided that, with respect to a SOFR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Term Loan plus 2.50% per annum, in each case, to the fullest extent permitted by applicable Laws.

 

Defaulting Lender” means, subject to Section 2.19(b), any Lender that, as reasonably determined by the Administrative Agent (a) has refused (which refusal may be given verbally or in writing and has not been retracted) or failed to perform any of its funding obligations hereunder, including in respect of its Term Loans, which refusal or failure is not cured within one Business Day after the date of such refusal or failure, (b) has notified the Lead Borrower or Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Lead Borrower), or (d) has, or has a direct or indirect parent company that has, after the date of this Agreement, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) become the subject of a Bail-In Action or (iv) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19(b)) upon delivery of written notice of such determination to the Lead Borrower and each Lender.

 

14

 

 

Designated Lenders” means, collectively, (a) certain funds and accounts managed by Angelo, Gordon & Co. or one or more entities owned by such funds or accounts and (b) certain funds or accounts managed by Oaktree Capital Management, L.P. or one or more entities owned by such funds or accounts.

 

Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction and any sale or issuance of Equity Interests of a Loan Party) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that the issuance of Equity Interests by Parent shall not constitute a Disposition by Parent.

 

Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests or solely at the direction of the issuer), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Term Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date.

 

Disqualified Institution” means those Persons (the list of all such Persons, the “Disqualified Institutions List”) that are (i) identified in writing by the Lead Borrower to the Administrative Agent prior to the date hereof, (ii) competitors of the Trinseo Lead Borrower and its Subsidiaries (other than bona fide fixed income investors or debt funds) that are identified in writing by the Lead Borrower prior to the date hereof and from time to time or (iii) Affiliates of such Persons set forth in clauses (i) and (ii) above (in the case of Affiliates of such Persons set forth in clause (ii) above, other than bona fide fixed income investors or debt funds) that are either (a) identified in writing by the Lead Borrower to the Administrative Agent from time to time or (b) clearly identifiable on the basis of such Affiliate’s name; provided, that, to the extent Persons are identified as Disqualified Institutions in writing by the Lead Borrower to the Administrative Agent after the Closing Date pursuant to clauses (ii) or (iii)(a), the inclusion of such Persons as Disqualified Institutions shall not retroactively apply to prior assignments or participations in respect of any Term Loan under this Agreement. Notwithstanding the foregoing, the Lead Borrower, by written notice to the Administrative Agent, may from time to time in its sole discretion remove any entity from the Disqualified Institutions List (or otherwise modify such list to exclude any particular entity), and such entity removed or excluded from the Disqualified Institutions List shall no longer be a Disqualified Institution for any purpose under this Agreement or any other Loan Document.

 

15

 

 

Disqualified Institutions List” has the meaning as set forth in the definition of Disqualified Institutions.

 

Dollar” and “$” mean lawful money of the United States.

 

Dollar Amount” means, at any time, with respect to any Term Loan, the principal amount thereof then outstanding (or in which such participation is held).

 

Domestic Loan Party” means any Loan Party that is organized under the Laws of the United States, any state thereof or the District of Columbia.

 

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

Eligible Assignee” has the meaning set forth in Section 10.07(a). For the avoidance of doubt, “Eligible Assignee” shall not include any Disqualified Institution identified by the Lead Borrower prior to the effective date of any assignment under Section 10.07.

 

EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

 

Environment” means indoor air, ambient air, surface water, groundwater, drinking water, land surface, subsurface strata, and natural resources such as wetlands, flora and fauna.

 

Environmental Laws” means any applicable Law, including common law, relating to the prevention of pollution or the protection of the environment and natural resources, or to the protection of human health and safety as it relates to the environment.

 

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of investigation and remediation, fines, penalties or indemnities) directly or indirectly resulting from or based upon (a) violation of any Environmental Law or any Environmental Permit, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

16

 

 

Environmental Permit” means any permit, approval, identification number, license or other authorization required by any Environmental Law.

 

Equity Contribution” has the meaning specified in Section 4.01(k).

 

Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock or share capital of (or other ownership or profit interests or units in) share premium such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).

 

ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

 

ERISA Affiliate” means any trade or business (whether or not incorporated) that is under common control with a Loan Party within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(a)(14) of ERISA.

 

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by a Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan, the insolvency under Title IV of ERISA of any Multiemployer Plan, or the receipt of any Loan Party or any ERISA Affiliate, of any notice that a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA; (d) the filing of a notice of intent to terminate any Pension Plan, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which would reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the failure to make a required contribution to any Pension Plan that would result in the imposition of a lien or other encumbrance on a Loan Party or the provision of security under Section 430 of the Code or Section 303 or 4068 of ERISA by a Loan Party, or the arising of such a lien or encumbrance, there being or arising any “unpaid minimum required contribution” or “accumulated funding deficiency” (as defined or otherwise set forth in Section 4971 of the Code or Part 3 of Subtitle B of Title I of ERISA), whether or not waived, the failure to satisfy the minimum funding standard of Section 412 of the Code, whether or not waived, or a determination that any Pension Plan is, or is reasonably expected to be, in at-risk status under Title IV of ERISA; (g) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) with respect to a Pension Plan which could reasonably be expected to result in liability to a Loan Party; or (h) the incurring of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, by a Loan Party or any ERISA Affiliate.

 

17

 

 

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

Event of Default” has the meaning specified in Section 8.01.

 

Excess Amortization” means the positive difference, if any, between (i) the amount of regularly scheduled amortization payments made in cash to the Lead Borrower in respect of the 2023 Refinancing Term Loans and the 2023 Incremental Term Loans under and pursuant to the Trinseo Credit Agreement in the aggregate on any amortization payment date under the Trinseo Credit Agreement and (ii) the amount of regulatory scheduled amortization required to be paid in cash by the Borrowers under Section 2.07(a) on the corresponding amortization payment date under this Agreement.

 

Excess Interest” means the positive difference, if any, between (i) the amount of interest paid in cash to the Lead Borrower in respect of the 2023 Refinancing Term Loans and the 2023 Incremental Term Loans under and pursuant to the Trinseo Credit Agreement in the aggregate for any Interest Period and (ii) the amount of interest required to be paid in cash by the Borrowers to the Lenders for the same Interest Period in respect of the Term Loans.

 

Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

Excluded Asset” means (i) a direct pledge of the JV Interests so long as such direct pledge would require consent of Chevron Phillips Chemical Company LP and only to the extent and for so long as consent requirement is in effect; provided that proceeds and products of the JV Interests do not constitute Excluded Assets and shall constitute Collateral and (ii) the Equity Interests that Parent owns in Trinseo Holdings.

 

Excluded Taxes” has the meaning set forth in Section 3.01(a).

 

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Credit Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, and any agreement pursuant to the implementation of the above with the United States Internal Revenue Service, the United States government or any governmental or taxation authority in the United States, including the Agreement between the Government of the United States of America and the Government of the Grand Duchy of Luxembourg to Improve International Tax Compliance and with respect to The United States information reporting provisions commonly known as the Foreign Account Tax Compliance Act, and any rules, regulations or guidance enacted thereunder or official interpretations thereof.

 

Fair Market Value” means with respect to the JV Interests, the fair market value as determined by the board of managers of the Co-Borrower in good faith based on a valuation report prepared by an independent and unaffiliated third party valuation firm and dated within two weeks of signing of the JV Sale (or such later date as reasonably agreed to by the Administrative Agent), which report shall be delivered to the Administrative Agent; provided that if the Co-Borrower receives three or more bona fide bids from potential buyers in connection with the JV Sale process there shall be no requirement for an unaffiliated third party valuation.

 

18

 

 

FCPA” has the meaning set forth in Section 5.22.

 

Federal Funds Rate” means, for any day, the greater of (a) the rate calculated by the Federal Reserve Bank of New York based on such day’s Federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the Federal funds effective rate and (b) 0%.

 

FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.

 

First Lien Net Debt” has the meaning given to the term “Consolidated First Lien Net Debt” in the Trinseo Credit Agreement; provided that Outstanding Amount of the Term Loans under this Agreement shall constitute First Lien Net Debt in lieu of the Outstanding Amount (as defined in the Trinseo Credit Agreement) of 2023 Incremental Term Loans and 2023 Refinancing Term Loans.

 

First Lien Net Leverage Ratio” means, with respect to any Test Period (as defined in the Trinseo Credit Agreement), the ratio of (a) First Lien Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period.

 

Flood Laws” means collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

 

Floor” means a rate of interest equal to 3.00%.

 

Foreign Pension Plan” means any occupational pension plan, fund (including, without limitation, any superannuation fund) or other similar program established, contributed to or maintained outside the United States on a voluntary basis by any Loan Party (other than a Luxembourg Loan Party), as a single employer or as part of a group of employers, primarily for the benefit of employees of any Loan Party residing outside the United States, which plan, fund or other similar program provides, retirement income, and which plan is not subject to ERISA or the Code.

 

Foreign Loan Party” means any Loan Party that is not a Domestic Loan Party.

 

FRB” means the Board of Governors of the Federal Reserve System of the United States.

 

Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

 

19

 

 

GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that if the Lead Borrower notifies the Administrative Agent that the Lead Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Lead Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

 

Governmental Authority” means any nation or government, the European Union, any state, provincial or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

Granting Lender” has the meaning specified in Section 10.07(j).

 

Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business or consistent with past practice, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

 

Guaranteed Obligations” has the meaning specified in Section 11.01.

 

Guarantors” means each of Parent and Holdings.

 

20

 

 

Guaranty” means, collectively, the guaranty of the Obligations by the Guarantors pursuant to this Agreement.

 

Hazardous Materials” means all materials, pollutants, contaminants, chemicals, wastes or any other substances, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic mold, electromagnetic radio frequency or microwave emissions, that are listed, classified or regulated as hazardous or toxic, or any similar term, pursuant to any Environmental Law.

 

Holdings” has the meaning set forth in the introductory paragraph to this Agreement.

 

Incremental Equivalent Debt” has the meaning set forth in Section 2.16(h).

 

Indebtedness” means, as to any Person at a particular time, without duplication, all of the following:

 

(a)            all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

 

(b)            the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;

 

(c)            [reserved];

 

(d)            all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business and (ii) any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and is not paid within thirty (30) Business Days after becoming due and payable);

 

(e)            indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

 

(f)            all Attributable Indebtedness;

 

(g)            all obligations of such Person in respect of Disqualified Equity Interests to the extent that the foregoing would constitute indebtedness or a liability in accordance with GAAP; and

 

(h)            to the extent not otherwise included above, all Guarantees of such Person in respect of any of the foregoing.

 

21

 

 

The amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.

 

Indemnified Liabilities” has the meaning set forth in Section 10.05.

 

Indemnified Taxes” has the meaning set forth in Section 3.01(a).

 

Indemnitees” has the meaning set forth in Section 10.05.

 

Independent Manager” means an individual who is natural person and who: (i) for the five-year period prior to such person’s appointment as Independent Manager has not been, and during the continuation of such person’s service as Independent Manager is not: (A) an employee, director, stockholder, member, manager, partner or officer of any Loan Party or any of its Affiliates (other than such person’s service as an Independent Manager); (B) a customer, creditor, service provider or supplier of any Loan Party or any of its Affiliates (other than such person’s service as an Independent Manager); or (C) any member of the immediate family of a person described in the foregoing clause (A) or (B); and (ii) has (A) prior experience as an Independent Manager for a corporation or limited liability company whose charter or organizational documents required the unanimous consent of all Independent Managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy; and (B) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services (including providing independent managers) to issuers of structured finance instruments, agreements or securities.

 

Information” has the meaning set forth in Section 10.08.

 

Insolvency Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) as amended by Regulation (EU) 2021/2260 of the European Parliament and of the Council of 15 December 2021.

 

Intercompany Note” means a promissory note evidencing the intercompany Indebtedness incurred pursuant to Section 7.03(c), substantially in the form of Exhibit E or such other intercompany note reasonably acceptable to the Administrative Agent.

 

Intercompany Parent Loan” means that certain Loan Agreement, dated as of the Closing Date, by and between the Lead Borrower as lender and Parent as borrower, pursuant to which the Lead Borrower made available to Parent a loan in the principal amount of $128,865,980.

 

Interest Payment Date” means, (a) as to any SOFR Loan, the last day of each Interest Period applicable to such Term Loan, any day on which such Term Loan is converted into a Base Rate Loan, any day on which payment of principal in respect of such SOFR Loan is made (whether as optional or mandatory prepayment or as repayment) and the Maturity Date (whether by acceleration or otherwise); provided that if any Interest Period for a SOFR Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December, any day on which payment of principal in respect of such Base Rate Loan is made (whether as optional or mandatory prepayment or as repayment) and the Maturity Date (whether by acceleration or otherwise).

 

22

 

 

Interest Period” means, as to each SOFR Loan, the period commencing on the date such SOFR Loan is disbursed or converted to or continued as a SOFR Loan and ending on the date one (1), three (3) or six (6) months thereafter, as selected by the Lead Borrower in its Committed Loan Notice; provided that:

 

(a)            any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

(b)            any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period;

 

(c)            no Interest Period shall extend beyond the Maturity Date; and

 

(d)            no tenor that has been removed from this definition pursuant to Section 2.20(d) shall be available for specification in such Committed Loan Notice.

 

Irregular Dividends” has the meaning set forth in Section 2.05(b)(iii).

 

Investment” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of any direct or indirect advance, loan or other extensions of credit (other than advances or extensions of credit to customers, suppliers, directors, officers or employees of any Person in the ordinary course of business or consistent with past practice, and excluding any debt or extension of credit represented by a bank deposit other than a time deposit) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or the incurrence of a Guarantee of any obligation of, or any purchase or acquisition of Equity Interests, Indebtedness or other similar instruments issued by, such other Persons and all other items that are or would be classified as investments on a balance sheet prepared on the basis of GAAP.

 

The amount of any Investment outstanding at any time shall be the original cost of such Investment (with the fair market value of such Investment being measured at the time such Investment is made and without giving effect to subsequent changes in value) as reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount (including in respect of dispositions) received in cash or Cash Equivalents in respect of such Investment; provided that the aggregate amount of such dividend, distribution, interest payment, return of capital, repayment or other amount shall not exceed the original amount of such Investment.

 

IP Rights” has the meaning set forth in Section 5.15.

 

Junior Financing” has the meaning set forth in Section 7.13(a).

 

23

 

 

Junior Financing Documentation” means any documentation governing any Junior Financing.

 

JV Agreement” means that certain Limited Liability Company Agreement of Americas Styrenics LLC, dated as of May 2, 2008, by and between Chevron Phillips Chemical Company LP and Trinseo LLC (as successor to The Dow Chemical Company), as amended prior to the Closing Date and as may be amended after the Closing Date solely to the extent not prohibited by this Agreement.

 

JV Interests” means all Equity Interests of Americas Styrenics owned by Trinseo LLC, the Co-Borrower or any of their Affiliates at any time, which shall in no event be less than 50% of the Equity Interests of Americas Styrenics.

 

JV Sale” means (a) a Disposition of all or a portion of the JV Interests or all or substantially all of the property or assets of Americas Styrenics, or (b) any Disposition of non-cash proceeds received in connection with a transaction under clause (a) of this definition.

 

Laws” means, collectively, all international, foreign, federal, state, regional, provincial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.

 

Lead Borrower” has the meaning provided in the introductory paragraph hereof.

 

Lender” has the meaning specified in the introductory paragraph to this Agreement and their respective successors and assigns as permitted hereunder, each of which is referred to herein as a “Lender.”

 

Lender Fee Letter” means that certain fee letter dated as of the date hereof, by and between Borrowers and the Lenders, as amended, amended and restated, supplemented or otherwise modified from time to time.

 

Lending Office” means, as to any Lender, such office or offices as such Lender may from time to time notify the Lead Borrower and the Administrative Agent.

 

Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to Real Property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing).

 

Limited Guarantor Security Agreement” means a security agreement governed by the laws of the State of New York, to be entered into after the Closing Date by the Limited Guarantors in favor of the Collateral Agent, in form and substance reasonably acceptable to the Collateral Agent and as amended, amended and restated, supplemented or modified from time to time in accordance with the terms thereof and this Agreement.

 

24

 

 

Limited Guarantors” means certain Affiliates of the Borrowers party to the Limited Guaranty and the Limited Guarantor Security Agreement.

 

Limited Guaranty” means that certain Limited Guaranty, governed by the laws of the State of New York, entered into after the Closing Date by the Limited Guarantors in favor of the Administrative Agent, as amended, amended and restated, supplemented or modified from time to time in accordance with the terms thereof and this Agreement.

 

Liquidity” means, as of any date of determination, the sum of (a) cash and Cash Equivalents (as defined in the Trinseo Credit Agreement in effect on the date hereof), (b) the aggregate principal amount of Revolving Credit Commitments (as such term is defined in the Trinseo Credit Agreement) available to be borrowed as of such date and (c) availability under Permitted Securitizations (as such term is defined in the Trinseo Credit Agreement) as of such date not to exceed $150,000,000 in the aggregate.

 

Loan Documents” means, collectively, (a) this Agreement, (b) the Term Notes, (c) the Collateral Documents, (d) the Agent Fee Letter, (e) the Lender Fee Letter, (f) the Limited Guaranty and (g) any other amendment or joinder to this Agreement.

 

Loan Parties” means, collectively, each Borrower and each Guarantor.

 

Luxembourg” means the Grand Duchy of Luxembourg.

 

Luxembourg Guarantor” means a Guarantor incorporated in Luxembourg.

 

Luxembourg Insolvency Event” means, in relation to any Luxembourg Loan Party or any of its assets, any corporate action, legal proceedings or other procedure or step in relation to bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), administrative dissolution without liquidation (dissolution administrative sans liquidation), composition with creditors (concordat préventif de faillite), moratorium or reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), or any of the out-of court or in-court reorganization procedures as provided for in the Luxembourg bill no. 6539A of 19 July 2023 on business preservation and modernization of bankruptcy law, which aims to modernize Luxembourg’s insolvency laws, implementing the EU Directive 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks fraudulent conveyance (actio pauliana), general settlement with creditors, reorganization or similar laws affecting the rights of creditors generally.

 

Luxembourg Loan Party” means a Loan Party incorporated in Luxembourg.

 

Luxembourg Receivables Pledge Agreement” means the Luxembourg law governed receivables pledge agreement, dated as of the date hereof, pursuant to which the Lead Borrower pledges to the Collateral Agent, on behalf of the Secured Parties, all receivables due to it, including in respect of the 2023 Refinancing Term Loans and the 2023 Incremental Term Loans and the Intercompany Parent Loan.

 

25

 

 

Luxembourg Share Pledge Agreement” means the Luxembourg law governed share pledge agreement, dated as of the date hereof, pursuant to which the Parent pledges to the Collateral Agent, on behalf of the Secured Parties, all the shares issued by the Lead Borrower.

 

Make-Whole Amount” means as of the date of any JV Sale or Applicable Prepayment Premium Event, as applicable, an amount equal to the excess of (i) the present value at the prepayment date, refinancing date or acceleration date, as applicable, of (1) the principal amount of the Term Loans subject to the JV Sale or Applicable Prepayment Premium, plus (2) all required remaining scheduled interest payments due on the Term Loans subject to the JV Sale or Applicable Prepayment Premium, through the applicable No Call Expiration Date, assuming that the rate of interest will be equal to the rate of interest in effect on the date of notice of prepayment, refinancing or acceleration, other than accrued but unpaid interest as of such prepayment, refinancing or acceleration date, plus (3) the Applicable Sale Premium or the Applicable Prepayment Premium, as applicable, payable as if such prepayment, refinancing or acceleration occurred on the day immediately following the applicable No Call Expiration Date, in each case, computed using a discount rate equal to the Treasury Rate plus 50 basis points per annum, over (ii) the outstanding principal amount of the Term Loan subject to the JV Sale or Applicable Prepayment Premium as at the applicable date.

 

Margin Stock” shall have the meaning assigned to such term in Regulation U of the FRB.

 

Material Adverse Effect” means a (a) material adverse effect on the business, operations, assets, liabilities (actual or contingent) or financial condition of the Borrowers, taken as a whole; (b) material adverse effect on the ability of the Loan Parties (taken as a whole) to fully and timely perform any of their payment obligations under any Loan Document to which any of the Loan Parties is a party; or (c) material adverse effect on the rights and remedies available to the Lenders or the Collateral Agent under any Loan Document.

 

Maturity Date” means May 3, 2028.

 

Maximum Rate” has the meaning specified in Section 10.10.

 

Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

 

Mortgage Policies” has the meaning specified in the definition of “Collateral and Guarantee Requirement.”

 

Mortgaged Properties” has the meaning specified in the definition of “Collateral and Guarantee Requirement.”

 

Mortgages” means collectively, the deeds of trust, trust deeds, debentures, hypothecs and mortgages made by the Loan Parties in favor or for the benefit of the Administrative Agent on behalf of the Secured Parties creating and evidencing a Lien on a Mortgaged Property in form and substance reasonably satisfactory to the Administrative Agent, and any other mortgages executed and delivered pursuant to Section 6.11, Section 6.14 and Section 6.18.

 

Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.

 

26

 

 

Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating organization within the meaning of Rule 436 under the Securities Act.

 

Net Proceeds” means:

 

(a)            100% of the cash proceeds actually received by the applicable Loan Party (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise as and when received) from any Disposition, net of (i) attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, required debt payments and required payments of other obligations (including without limitation principal amount, premium or penalty, if any, interest and other amounts) (other than pursuant to the Loan Documents), other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) [reserved], (iii) taxes actually paid as a result thereof after taking into account the Loan Parties’ available tax attributes (including any net operating losses), and (iv) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (iii) above) (x) related to any of the applicable assets and (y) retained by the applicable Loan Party (however, the amount of any subsequent reduction of such reserve (other than in connection with a payment of such liability) shall be deemed to be Net Proceeds of such Disposition occurring on the date of such reduction); and

 

(b)            100% of the cash proceeds from the incurrence, issuance or sale by any Loan Party of any Indebtedness, net of all taxes paid or reasonably estimated to be payable as a result thereof and fees (including investment banking fees and discounts), commissions, costs and other expenses, in each case incurred in connection with such issuance or sale.

 

For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to the applicable Loan Party shall be disregarded.

 

No Call Expiration Date” means (a) with respect to any JV Sale, the date that is 12 month anniversary of the Closing Date and (b) with respect to any Applicable Prepayment Premium Event, the date that is 18 month anniversary of the Closing Date.

 

Non-Consenting Lender” has the meaning set forth in Section 3.07(d).

 

Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender.

 

Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Term Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents include (a) the obligation (including guarantee obligations) to pay principal, interest, the Make-Whole Amount, the Applicable Sale Premium, the Applicable Prepayment Premium, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document and (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party.

 

27

 

 

OFAC” has the meaning set forth in Section 5.22(b).

 

Officer’s Certificate” means, with respect to any Person, a certificate signed by one Responsible Officer of such Person.

 

OID” means original issue discount.

 

Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation, the articles of association, the bylaws and the unanimous shareholder agreements or declarations (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and the operating or limited liability company agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction) or articles of association; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the articles of association, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document).

 

Other Taxes” has the meaning specified in Section 3.01(a).

 

Outstanding Amount” means with respect to the Term Loans on any date, the aggregate outstanding Dollar Amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans occurring on such date.

 

Parallel Debt” has the meaning specified in Section 9.15(b).

 

Parent” has the meaning set forth in the introductory paragraph to this Agreement.

 

Participant” has the meaning specified in Section 10.07(e).

 

28

 

 

Participant Register” has the meaning specified in Section 10.07(e).

 

Participating Member State” means each state so described in any EMU Legislation.

 

PBGC” means the Pension Benefit Guaranty Corporation.

 

Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan or Foreign Pension Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party, any Subsidiary or any ERISA Affiliate, and such plan for the five-year period immediately following the latest date on which any Loan Party or Subsidiary maintained, contributed to or had an obligation to contribute to such plan.

 

Perfection Certificate” means a certificate in the form of Exhibit II to the Security Agreement or any other form reasonably approved by the Collateral Agent, as the same shall be supplemented from time to time.

 

Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.

 

Permitted Investment” means:

 

(a)            ownership of Equity Interests of any Loan Party or any Subsidiary existing as of the Closing Date;

 

(b)            unsecured and subordinated Investments made by a Loan Party in another Loan Party evidenced by and subject to an intercompany subordination agreement with respect to the Obligations;

 

(c)            ownership by the Co-Borrower of the JV Interests;

 

(d)            Investments in cash and Cash Equivalents;

 

(e)            Investments consisting of the 2023 Incremental Term Loans and 2023 Refinancing Term Loans, or any proceeds or distributions therefrom;

 

(f)            Investments received in connection with any Disposition permitted under Section 7.05; and

 

(g)            Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit.

 

For the avoidance of doubt, no Loan Party shall form or acquire any Subsidiary after the Closing Date.

 

Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

PIK Interest Election” has the meaning set forth in Section 2.08(c).

 

29

 

 

Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by any Loan Party or Subsidiary or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate, and such plan for the five-year period immediately following the latest date on which any Loan Party or an ERISA Affiliate maintained, contributed to or had an obligation to or have had an obligation to contribute to, or otherwise to have liability with respect to such plan.

 

Prime Rate” means the rate of interest per annum last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the FRB in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the FRB (as determined by the Administrative Agent). Any change in the Prime Rate shall take effect at the opening of business on the day such change is publicly announced or quoted as being effective.

 

Pro Rata Share” means, with respect to each Lender at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the outstanding Commitments and Term Loans of such Lender at such time and the denominator of which is the amount of the outstanding Aggregate Commitments and Term Loans of all Lenders at such time.

 

Projections” has the meaning set forth in Section 6.01(c).

 

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.

 

Quarterly Financial Statements” means unaudited consolidated balance sheets and related consolidated statements of comprehensive income and cash flows of Americas Styrenics for the most recent fiscal quarters (other than the fourth fiscal quarter) after the date of the applicable Annual Financial Statements and ended at least forty-five (45) days prior to the Closing Date.

 

R.C.S. Luxembourg” means the Luxembourg Register of Commerce and Companies (Registre de Commerece et des Sociétés, Luxembourg).

 

Real Property” means, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in real property owned or leased by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.

 

Recipient” means any Lender or Agent.

 

Redemption Premium” has the meaning set forth in Section 2.05(d).

 

30

 

 

Register” has the meaning set forth in Section 10.07(d).

 

Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing or migrating in, into, onto or through the Environment or from or through any facility, property or equipment.

 

Reportable Event” means any reportable event, as defined in Section 4043 of ERISA, with respect to a Pension Plan, other than events for which the notice period is waived under applicable regulations as in effect on the date hereof.

 

Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Total Outstandings and (b) Aggregate Commitments; provided that, Required Lenders shall include each Designated Lender for so long as such Designated Lender (together with its managed funds and accounts) holds at least 50% of the Total Outstandings that were held by such Designated Lender (together with its managed funds and accounts) as of the Closing Date less any voluntary or mandatory prepayments of Term Loans; provided, further, that the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

 

Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer or other similar officer or a manager (gérant) or a director (adminstrateur) of a Loan Party and, as to any document delivered on the Closing Date, any secretary, authorized signatory or assistant secretary of such Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

 

Restricted Investment” means an Investment other than a Permitted Investment.

 

Restricted Payment” means (i) any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of any Loan Party, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to a Loan Party’s stockholders, partners or members (or the equivalent Persons thereof) and (ii) any Restricted Investment.

 

Restricted Subsidiary” has the meaning assigned to such term in each of the Trinseo Credit Agreement, the 2025 Notes and the 2029 Notes, as applicable.

 

S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.

 

Same Day Funds” means immediately available funds.

 

Sanctioned Country” means, at any time, a country, region or territory which is the subject or target of any Sanctions.

 

31

 

 

Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the European Union or Her Majesty’s Treasury of the United Kingdom, (b) any Person organized or ordinarily resident in a Sanctioned Country or (c) any Person controlled (as determined by applicable law) by any Person or Persons described in the foregoing clause (a).

 

Sanctions” has the meaning set forth in Section 5.22(b).

 

SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Supplemental Agents and each co-agent or sub-agent appointed by the Administrative Agent or Collateral Agent from time to time pursuant to Section 9.02.

 

Securities Act” means the Securities Act of 1933, as amended.

 

Security Agreement” means the Pledge and Security Agreement substantially in the form of Exhibit D.

 

Security Agreement Supplement” has the meaning specified in the Security Agreement.

 

SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

 

SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

 

SOFR Borrowing” means, as to any Borrowing, the SOFR Loans comprising such Borrowing.

 

SOFR Loan” means a Term Loan that bears interest at a rate based on Term SOFR, other than pursuant to clause (c) of the definition of “Base Rate”.

 

Solvent” and “Solvency” mean, with respect to any Person (other than a Person organized under Luxembourg law) on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is able to pay all that Person’s debts as and when they become due and payable and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. With respect to any Person organized under Luxembourg law, “Solvent” and “Solvency” means such Person is not unable to pay its debts (in particular, it is not in a state of cessation of payments (cessation des paiements) and has not lost its commercial creditworthiness (ébranlement de crédit)) and would not become unable to do so.

 

32

 

 

SPC” has the meaning specified in Section 10.07(j).

 

Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which (i) a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, (ii) more than half of the issued share capital is at the time beneficially owned or (iii) the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person.

 

Supplemental Agent” has the meaning specified in Section 9.13(a) and “Supplemental Agents” shall have the corresponding meaning.

 

Supplier” has the meaning set forth in Section 3.01(i).

 

Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, addition to tax or penalties applicable thereto.

 

Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of SOFR Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01(a).

 

Term Loan” means any Tranche A Term Loan and Tranche B Term Loan.

 

Term Note” means a promissory note of the Borrowers payable to any Lender or its registered assigns, in substantially the form of Exhibit B hereto, evidencing the aggregate Indebtedness of the Borrowers to such Lender resulting from the Term Loans made by such Lender.

 

Term SOFR” means:

 

(1)            for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided however that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and

 

33

 

 

(2)            for any calculation with respect to an Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided however that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day;

 

provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.

 

Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the Term SOFR Reference Rate (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion and in consultation with the Lead Borrower).

 

Term SOFR Reference Rate means the forward-looking term rate based on SOFR.

 

Threshold Amount” means $10,000,000.

 

Total Outstandings” means the aggregate Outstanding Amount of all Term Loans.

 

Tranche A Term Loan” means the term loans made by the Lenders to the Borrowers on the Closing Date pursuant to Section 2.01(a).

 

Tranche A Term Loan Commitment” means, as to each Lender, its obligation to make Tranche A Term Loans to the Borrowers pursuant to Section 2.01(a) in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01A under the caption “Tranche A Term Loan Commitment”. The aggregate amount of the Tranche A Term Loan Commitments on the Closing Date is $128,865,980.

 

Tranche B Term Loan” means the term loans made by the Lenders to the Borrowers on the Closing Date pursuant to Section 2.01(b).

 

Tranche B Term Loan Commitment” means, as to each Lender, its obligation to make Tranche B Term Loans to the Borrowers pursuant to Section 2.01(b) in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01B under the caption “Tranche B Term Loan Commitment”. The aggregate amount of the Tranche B Term Loan Commitments on the Closing Date is $948,385,311.

 

34

 

 

Transaction Expenses” means any fees or expenses incurred or paid by the Loan Parties in connection with the Transactions, this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby.

 

Transactions” means, collectively, (a) the funding of the Tranche A Term Loans on the Closing Date, (b) the issuance by Parent of the Intercompany Parent Note and the concurrent contribution of the proceeds thereof by Parent to Trinseo Holdings and by Trinseo Holdings to Trinseo Lead Borrower on the Closing Date, (c) contribution by Trinseo LLC of the JV Interests to the Co-Borrower, (d) the funding of the Tranche B Term Loans on the Closing Date, (e) entry into 2023 Incremental and Refinancing Amendment, (f) the refinancing in full of the 2018 Refinancing Term Loans (as defined in the Trinseo Credit Agreement) with the proceeds of the 2023 Refinancing Term Loans together with cash on hand on the Closing Date, (g) the redemption of not less than $385,000,000 of the principal amount of the 2025 Senior Notes with the proceeds of the 2023 Incremental Term Loans and cash on hand and (h) the payment of Transaction Expenses.

 

Treasury Rate” means with respect to a prepayment, refinancing or acceleration occurring at any time prior to the applicable No Call Expiration Date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two (2) Business Days prior to such date of prepayment, refinancing or acceleration (or, if such Federal Reserve Statistical Release referred to in the previous parenthetical is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such date of prepayment, refinancing or acceleration to the applicable No Call Expiration Date; provided that if the period from such prepayment date to the applicable No Call Expiration Date is not equal to the constant maturity of the United States Treasury security for which a weekly average yield is given, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

 

Triggering Event” has the meaning set forth in Schedule 1.01C.

 

Trinseo Administrative Agent” means Deutsche Bank AG New York Branch, as the administrative agent and collateral agent for the lenders under the Trinseo Credit Agreement, together with its successors and assigns.

 

Trinseo Credit Agreement” means the Credit Agreement, dated as of September 6, 2017 by and among the Trinseo Lead Borrower, Trinseo Holdings, Trinseo Materials S.à r.l., as Intermediate Holdings, Trinseo Co-Borrower, certain of Trinseo Materials S.à r.l.’s subsidiaries identified therein, the senior lenders (as named therein) and Trinseo Administrative Agent, together with the related documents thereto (including the revolving loans thereunder, any letters of credit and reimbursement obligations related thereto, any Guarantees and security documents), as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed from time to time, including pursuant to the 2023 Incremental and Refinancing Amendment.

 

35

 

 

Trinseo Co-Borrower” means Trinseo Materials Finance, Inc., a Delaware corporation.

 

Trinseo Holdings” means Trinseo Holding S.à r.l., a private limited liability company (société à responsabilité limitée), incorporated and existing under the laws of Luxembourg, having its registered office at 26, boulevard Royal, L-2449 Luxembourg, registered with the R.C.S. Luxembourg under number B153582.

 

Trinseo Lead Borrower” means Trinseo Materials Operating S.C.A., a partnership limited by shares (société en commandite par actions) incorporated and existing under the laws of Luxembourg, having its registered office at 26, boulevard Royal, L-2449 Luxembourg, registered with the R.C.S. Luxembourg under number B153586.

 

Trinseo Loan Party” means, each of Trinseo Lead Borrower, Trinseo Co-Borrower and each other “Loan Party” as such term is defined in the Trinseo Credit Agreement.

 

Type” means, with respect to a Term Loan, its character as a Base Rate Loan or a SOFR Loan.

 

Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

 

Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.

 

United States” and “U.S.” mean the United States of America.

 

U.S. Government Securities Business Days” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

 

USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.

 

VAT” means (a) any tax imposed in compliance with the Council Directive of November 28, 2006 on the common system of value added tax (EC Directive 2006/112) and (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in clause (a) above, or imposed elsewhere.

 

Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining scheduled installment, sinking fund, serial maturity or other required scheduled payments of principal, including payment at final scheduled maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness; provided, that the effects of any prepayments made on such Indebtedness shall be disregarded in making such calculation.

 

36

 

 

wholly owned” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares issued to foreign nationals to the extent required by applicable Law) are owned by such Person and/or by one or more wholly owned Subsidiaries of such Person.

 

Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

Section 1.02      Luxembourg Terms. Luxembourg legal concepts expressed in English terms in this Agreement may not correspond to the original Luxembourgish, French or German terms relating thereto. Without prejudice to the generality of any provision of this Agreement, in this Agreement where it relates to a Luxembourg Loan Party, a reference to:

 

(a)            a winding-up, administration or dissolution includes, without limitation, bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciare), administrative dissolution without liquidation (dissolution administrative sans liquidation), composition with creditors (concordat préventif de faillite), moratorium or reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), fraudulent conveyance (actio pauliana), general settlement with creditors, reorganization or similar laws affecting the rights of creditors generally;

 

(b)            a receiver, administrative receiver, administrator, trustee, custodian, sequestrator, conservator or similar officer includes, without limitation, a juge délégué, commissaire, juge-commissaire, mandataire ad hoc, administrateur provisoire, liquidateur or curateur;

 

(c)            a lien or security interest includes, without limitation, any hypothèque, nantissement, gage, privilège, transfert de propriété à titre de garantie, gage sur fonds de commerce, droit de rétention, and any type of security in rem (sûreté réelle) or agreement or arrangement having a similar effect and any transfer of title by way of security;

 

(d)            a guarantee includes any garantie which is independent from the debt to which it relates, any professional payment guarantee (garantie professsionelle de paiement) within the meaning of the Luxembourg law on professional payment guarantees dated 10 July 2020, and any suretyship (cautionnement) within the meaning of Articles 2011 et seq. of the Luxembourg Civil Code;

 

(e)            a person being unable to pay its debts includes that person being in a state of cessation of payments (cessation de paiements); and

 

(f)            Organization Documents includes its up-to-date (restated) articles of association (statuts coordonnés);

 

37

 

 

(g)            a manager includes a gérant;

 

(h)            an agent includes, without limitation, a mandataire;

 

(i)            creditors process or attachment means an executory attachment (saisie exécutoire) or a conservatory attachment (saisie conservatoire);

 

(j)            Equity Interests includes parts sociales;

 

(k)            gross negligence means faute lourde; and

 

(l)            willful misconduct means dol or faute dolosive.

 

Section 1.03      Reserved.

 

Section 1.04      Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

(a)            The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)            The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

 

(c)            Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.

 

(d)            The term “including” is by way of example and not limitation.

 

(e)            The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

 

(f)            In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including.”

 

(g)            Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

Section 1.05      Accounting Terms. (a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, except as otherwise specifically prescribed herein.

 

(b)            Notwithstanding any changes in GAAP after the Closing Date, any lease of the Loan Parties and their Subsidiaries that would be characterized as an operating lease under GAAP in effect on December 31, 2018 (whether such lease is entered into before or after the Closing Date) shall not constitute Indebtedness or Attributable Indebtedness under this Agreement or any other Loan Document as a result of such changes in GAAP.

 

38

 

 

Section 1.06      Rounding. Any financial ratios required to be maintained by the Lead Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).

 

Section 1.07      References to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted by the Loan Documents; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

 

Section 1.08      Times of Day. Unless otherwise specified, all references herein to times of day shall be references to United States Eastern time (daylight or standard, as applicable).

 

Section 1.09      Timing of Payment of Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day.

 

Section 1.10      Reserved.

 

Section 1.11      Currency Equivalents. For purposes of any computation determining compliance with any incurrence or expenditure tests set forth in Article VI and Article VII or any definitions contained in Section 1.01, any amounts so incurred, expended or utilized (to the extent incurred, expended or utilized in a currency other than Dollars) shall be converted into Dollars on the basis of the Exchange Rate (or on such other basis as is reasonably satisfactory to the Administrative Agent) as in effect on the date of such incurrence, expenditure or utilization under any provision of any such Section or definition that has an aggregate Dollar limitation provided for therein (and to the extent the respective incurrence, expenditure or utilization test regulates the aggregate amount outstanding at any time and it is expressed in terms of Dollars, all outstanding amounts originally incurred or spent in currencies other than Dollars shall be converted into Dollars on the basis of the Exchange Rate (or on such other basis as is reasonably satisfactory to the Administrative Agent) as in effect on the date of any new incurrence, expenditure or utilization made under any provision of any such Section that regulates the Dollar amount outstanding at any time).

 

39

 

 

 

Section 1.12         Reserved.

Section 1.13         Reserved.

Section 1.14         Reserved.

Section 1.15         Rates. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of, submission of, calculation of or any other matter related to Base Rate, the Term SOFR Reference Rate, or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of Base Rate, the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark, or any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Article II

The Commitments and Credit Extensions

Section 2.01         Term Loans.

(a)           Subject to the terms and conditions set forth herein, each Lender with a Tranche A Term Loan Commitment severally, and not jointly, agrees to make the Tranche A Term Loans to the Borrowers on the Closing Date in an aggregate amount not to exceed the amount of such Lender’s Tranche A Term Loan Commitment.

(b)           Subject to the terms and conditions set forth herein, each Lender with a Tranche B Term Loan Commitment severally, and not jointly, agrees to make the Tranche B Term Loans to the Borrowers on the Closing Date in an aggregate amount not to exceed the amount of such Lender’s Tranche B Term Loan Commitment.

(c)           Amounts borrowed under this Section 2.01(a) and (b) and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or SOFR Loans, as further provided herein.

40

Section 2.02         Borrowings, Conversions and Continuations of Loans. (a) Each Term Borrowing, each conversion of Term Loans from one Type to the other, and each continuation of SOFR Loans shall be made upon the Lead Borrower’s irrevocable notice to the Administrative Agent, which must be given in writing or via electronic mail. Each such notice must be received by the Administrative Agent not later than 4:00 p.m. (New York, New York time) one day prior to the Closing Date, with respect to the Borrowings on the Closing Date, and with respect to any other Borrowing, conversion or continuation, 1:00 p.m. (New York, New York time) (i) three (3) Business Days prior to the requested date of any Borrowing of, or conversion of Base Rate Loans to, SOFR Loans denominated in Dollars and (ii) one (1) Business Day before the requested date of any Borrowing of, or conversion of SOFR Loans to, Base Rate Loans denominated in Dollars. Each notice by the Lead Borrower pursuant to this Section 2.02(a) must be a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Lead Borrower and delivered to the Administrative Agent. Each Borrowing of, conversion to or continuation of SOFR Loans shall be in a minimum Dollar Amount of $5,000,000 or a whole multiple of a Dollar Amount of $1,000,000 in excess thereof. Each Borrowing of or conversion to Base Rate Loans shall be in a minimum Dollar Amount of $1,000,000 or a whole multiple of a Dollar Amount of $500,000 in excess thereof. Each Committed Loan Notice shall specify (i) whether the Borrowers are requesting a Term Borrowing, a conversion of Term Loans from one Type to the other, or a continuation of SOFR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Term Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) the Borrower’s wiring instructions. If with respect to SOFR Loans, the Lead Borrower fails to specify a Type of Loan in a Committed Loan Notice or if the Lead Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Class of Term Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion pursuant to the immediately preceding sentence shall be effective as of the last day of the Interest Period then in effect with respect to the applicable SOFR Loans. If the Lead Borrower requests a Borrowing of, conversion to, or continuation of SOFR Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month.

(b)           Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata Share of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Lead Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation described in Section 2.02(a). In the case of each Borrowing, each Lender shall make the amount of its Term Loan available to the Administrative Agent in Dollars in Same Day Funds at the Administrative Agent’s Office not later than 1:00 p.m. (New York, New York time) on the Business Day specified in the applicable Committed Loan Notice. Upon receipt of all requested funds, the Administrative Agent shall make all funds so received available to the Borrowers in like funds as received by the Administrative Agent by wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Lead Borrower.

(c)           Except as otherwise provided herein, a SOFR Loan may be continued or converted only on the last day of an Interest Period for such SOFR Loan unless the Borrowers pay the amount due, if any, under Section 3.05 in connection therewith. During the existence of an Event of Default, at the election of the Administrative Agent or the Required Lenders, no Term Loans denominated in Dollars may be requested as, converted to or continued as SOFR Loans.

41

(d)           The Administrative Agent shall promptly notify the Lead Borrower and the Lenders of the interest rate applicable to any Interest Period for SOFR Loans upon determination of such interest rate. The determination of the Term SOFR by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in the “Prime Rate” used in determining the Base Rate promptly following the public announcement of such change.

(e)           After giving effect to all Term Borrowings, all conversions of Term Loans from one Type to the other, and all continuations of Term Loans as the same Type, there shall not be more than five (5) Interest Periods in effect.

(f)            The failure of any Lender to make the Terms Loans to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Term Loans on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Term Loan to be made by such other Lender on the date of any Borrowing.

(g)           Each Lender may, at its option, make any Term Loan available to any Borrower by causing any foreign or domestic branch or Affiliate of such Lender to make such Term Loan; provided that any exercise of such option shall not affect the obligation of such Borrower to repay such Term Loan in accordance with the terms of this Agreement, subject in each case to Sections 3.01 and 3.04 hereof.

Section 2.03         Reserved

Section 2.04         Reserved

Section 2.05         Prepayments. (a) (i) The Borrowers may, upon notice by the Lead Borrower to the Administrative Agent, at any time or from time to time, voluntarily prepay at par plus the Applicable Prepayment Premium, if any, any Class or Classes of Term Loans; provided that (1) such notice must be received by the Administrative Agent not later than (A) 1:00 p.m. (New York, New York time) three (3) Business Days prior to any date of prepayment of SOFR Loans (unless otherwise agreed by the Administrative Agent) and (B) 11:00 a.m. (New York, New York time) one (1) Business Day prior to the date of prepayment of Base Rate Loans; (2) any prepayment of SOFR Loans shall be in a principal Dollar Amount of $5,000,000, or a whole multiple of $1,000,000 in excess thereof; and (3) any prepayment of Base Rate Loans shall be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such prepayment notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Term Loans and the order of Borrowing(s) to be prepaid. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given by the Lead Borrower, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a SOFR Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05. In the case of each prepayment of Loans pursuant to this Section 2.05(a), the Borrower may in its sole discretion select the Borrowing or Borrowings to be repaid, and such payment shall be paid to the Lenders in accordance with their respective Pro Rata Shares or other applicable share provided for under this Agreement.

42

(ii)           [Reserved].

(iii)          Notwithstanding anything to the contrary contained in this Agreement, the Lead Borrower may rescind any notice of prepayment under Section 2.05(a)(i) if such prepayment would have resulted from a refinancing of all outstanding Term Loans, which refinancing shall not be consummated or shall otherwise be delayed.

(iv)          Each prepayment pursuant to Section 2.05(a)(i) shall be applied to one or more Classes of Term Loans as directed by the Lead Borrower to the Administrative Agent by written notice at or prior to the time of such prepayment or, to the extent the Lead Borrower has not provided such notice to the Administrative Agent by the time of such prepayment, ratably across each class of Term Loans. Each prepayment of any Class of Term Loans pursuant to Section 2.05(a)(i) shall reduce future scheduled amortization payments of principal thereof pursuant to Section 2.07(a) as directed by the Lead Borrower by written notice to the Administrative Agent at or prior to the time of such prepayment or, to the extent the Lead Borrower has not provided such notice to the Administrative Agent by the time of such prepayment, in the direct order of maturity to the applicable Class of Term Loans.

(v)           Notwithstanding anything to the contrary in this Section 2.05, the Lenders may reject in accordance with the procedures set forth Section 2.05(b)(viii) any voluntary prepayment made with the proceeds of an intercompany loan that is made by a Limited Guarantor to the Lead Borrower in lieu of a payment that is required to be made directly under the Limited Guaranty, in each case, as a result of the sale of any assets of, or the Equity Interests in, any Limited Guarantor.

(b)           Mandatory. (i) [Reserved]

(ii)            JV Sale. Upon the occurrence of any JV Sale, the Borrowers shall cause to be prepaid on or prior to the date which is two (2) Business Days after the date of realization or receipt by the Co-Borrower or any other Loan Party of any Net Proceeds, an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds so realized or received (minus the amount of interest and Applicable Sale Premium due and owing thereon), together with accrued interest to the date of such payment on the aggregate principal amount of Term Loans so prepaid and the Applicable Sale Premium, if any.

(iii)           JV Dividends. Upon the receipt by the Co-Borrower of any cash dividends from Americas Styrenics (other than (i) dividends received on account of a JV Sale and (ii) “Excess Cash Distributions (as such term is defined in the JV Agreement)) (such dividends, “Irregular Dividends”), in excess of $5,000,000 in any fiscal year (the “Annual Threshold”), the Co-Borrower shall cause to be prepaid on or prior to the date which is three (3) Business Days after the date of realization or receipt by the Co-Borrower of such Irregular Dividends in excess of the Annual Threshold, an aggregate principal amount of Term Loans in an amount equal to (A) 100% of such Irregular Dividends in excess of the Annual Threshold (minus the amount of interest and Applicable Sale Premium due and owing thereon), together with accrued interest to the date of such payment on the aggregate principal amount of Term Loans so prepaid and the Applicable Sale Premium, if any.

43

(iv)          Trinseo Credit Agreement. (A) If the Lead Borrower receives any proceeds as a result of any mandatory prepayment of the 2023 Refinancing Term Loans or the 2023 Incremental Term Loans pursuant to Sections 2.05(b)(i) or 2.05(b)(ii) of the Trinseo Credit Agreement or any functionally equivalent provisions thereunder, the Borrowers shall cause to be prepaid on or prior to the date which is two (2) Business Days after the date of receipt of such proceeds an aggregate principal amount of Term Loans in an amount equal to 100% of such proceeds (minus the amount of interest due and owing thereon), together with all accrued interest to the date of such payment on the aggregate principal amount of Term Loans so prepaid, but without any premium or penalty.

(B)           If the Lead Borrower receives any proceeds as a result of (x) any voluntary prepayment of the 2023 Refinancing Term Loans or the 2023 Incremental Term Loans pursuant to Section 2.05(a) of the Trinseo Credit Agreement or any functionally equivalent provision thereunder or (y) any mandatory prepayment of the 2023 Refinancing Term Loans or the 2023 Incremental Term Loans pursuant to Section 2.05(b)(iii) of the Trinseo Credit Agreement or any functionally equivalent provision thereunder, the Borrowers shall cause to be prepaid on or prior to the date which is two (2) Business Days after the date of receipt of such proceeds an aggregate principal amount of Term Loans in an amount equal to 100% of such proceeds (minus the amount of interest and Applicable Sale Premium due and owing thereon), together with all accrued interest to the date of such payment on the aggregate principal amount of Term Loans so prepaid and the Applicable Prepayment Premium.

(v)           Excess Interest and Excess Amortization. Following the JV Sale, if (A) the First Lien Net Leverage Ratio, calculated on a pro forma basis in accordance with Section 1.10 of the Trinseo Credit Agreement, exceeds 3.50:1.00 as of the most recently ended Test Period (as such term is defined in the Trinseo Credit Agreement) and (B) the Lead Borrower receives any Excess Interest or Excess Amortization at any time, the Borrowers shall cause to be prepaid on or prior to the date which is two (2) Business Days after the date of receipt of such Excess Interest or Excess Amortization an aggregate principal amount of Term Loans in an amount equal to 100% of Excess Interest and Excess Amortization (minus the amount of interest due and owing thereon), together with accrued interest to the date of such payment on the aggregate principal amount of Term Loans so prepaid, but without any premium or penalty.

(vi)          Indebtedness. If any Loan Party incurs or issues any Indebtedness (other than Indebtedness not prohibited under Section 7.03), the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is one (1) Business Day after such Net Proceeds are received by any Loan Party, together with all accrued and unpaid interest thereon and the Applicable Prepayment Premium thereon.

(vii)         Each prepayment of Term Loans pursuant to this Section 2.05(b) (A) shall be applied ratably to each Class of Term Loans then outstanding (other than any such Incremental Term Loans that are junior to the Tranche A Term Loans and the Tranche B Term Loans in right of payment or right of security), (B) shall be applied, with respect to future amortization applicable to each such Class for which prepayments will be made, in a manner determined at the discretion of the Lead Borrower in the applicable notice and, if not specified, in direct order of maturity to repayments thereof required pursuant to Section 2.07(a); provided that any mandatory prepayment pursuant to Section 2.05(b)(ii), (iii) and (v) shall be applied in the inverse order of maturity and (C) shall be paid to the Lenders in accordance with their respective Pro Rata Share of each such Class of Term Loans, subject to clause (viii) of this Section 2.05(b).

44

(viii)        The Lead Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to (A) clause (ii) or (vi) of this Section 2.05(b) by 4:00 p.m. (New York, New York time) one (1) Business Day prior to the date of such prepayment and (B) clauses (iii),  (iv) or (v) of this Section 2.05(b) at least three (3) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender of the contents of the Lead Borrower’s prepayment notice and of such Lender’s Pro Rata Share of the prepayment. Each Lender may reject all or a portion of its Pro Rata Share of (x) any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (iii), (iv) and (v) of this Section 2.05(b) and/or (y) a voluntary prepayment made pursuant to Section 2.05(a) with the proceeds of an intercompany loan that is made by a Limited Guarantor to the Lead Borrower in lieu of a payment that is required to be made directly under the Limited Guaranty, in each case, as a result of the sale of any assets of, or the Equity Interests in, any Limited Guarantor, in each case by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Lead Borrower no later than 4:00 p.m. one Business Day prior to such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lender (with such non-declining Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by the Borrowers (such remaining Declined Proceeds, the “Borrower Retained Prepayment Amounts”). Notwithstanding the foregoing and solely to the extent there are any Declined Proceeds in connection with any prepayment pursuant to clause (iv) of this Section 2.05(b), the Lead Borrower shall (x) decline an equivalent amount of Net Proceeds that are due to the Lead Borrower in its capacity as the 2023 Refinancing Term Loan Lender or the 2023 Incremental Term Loan Lender, as applicable, under and pursuant to the Trinseo Credit Agreement and (y) prepay the Term Loans of each Lender that has accepted or was deemed to accept such prepayment in accordance with such Lender’s Pro Rata Share of the Net Proceeds actually received from the Trinseo Lead Borrower.

(c)           Funding Losses, Etc. All prepayments under this Section 2.05 shall be made together with, in the case of any such prepayment of a SOFR Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such SOFR Loan pursuant to Section 3.05.

45

(d)           JV Sale; Applicable Prepayment Premium Event. If any JV Sale or Applicable Prepayment Premium Event, as applicable, occurs, then the Borrowers will pay to the Administrative Agent, for the account of the Lenders in accordance with their Pro Rata Shares, the Applicable Sale Premium, in the case of a JV Sale, and the Applicable Prepayment Premium in the event of an Applicable Prepayment Premium Event (as applicable, the “Redemption Premium”). In any such case, the Redemption Premium shall constitute part of the Obligations payable by the Borrowers (and guaranteed by the Guarantors) in respect of the Term Loans, which Obligations are guaranteed by the Guarantors and secured by the Collateral, and constitutes liquidated damages, not unmatured interest or a penalty, as the actual amount of damages to the Lenders as a result of any JV Sale or the relevant Applicable Prepayment Premium Event, as applicable, would be impracticable and extremely difficult to ascertain. The Redemption Premium is provided by mutual agreement of the Borrowers and the Guarantors and the Lenders as a reasonable estimation and calculation of such actual lost profits and other actual damages of such Lenders. Without limiting the generality of the foregoing, it is understood and agreed that upon the occurrence of any JV Sale or any Applicable Prepayment Premium Event, as applicable, the Redemption Premium shall be automatically and immediately due and payable as though any Term Loans subject to such JV Sale or such Applicable Prepayment Premium Event were voluntarily prepaid as of the earliest such date and shall constitute part of the Obligations payable by the Borrowers (and guaranteed by the Guarantors) in respect of the Term Loans, which Obligations are secured by the Collateral. The Redemption Premium shall also be automatically and immediately due and payable if the Term Loans are satisfied, released or discharged by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means. THE BORROWERS AND THE GUARANTORS HEREBY EXPRESSLY WAIVE (TO THE FULLEST EXTENT THEY MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR OTHER LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING REDEMPTION PREMIUM IN CONNECTION WITH ANY SUCH EVENTS, ANY RESCISSION OF SUCH ACCELERATION OR THE COMMENCEMENT OF ANY BANKRUPTCY OR INSOLVENCY EVENT. The Borrowers and the Guarantors expressly agree (to the fullest extent it and they may lawfully do so) that with respect to the Redemption Premium payable under the terms of this Agreement: (i) the Redemption Premium is reasonable and is the product of an arm’s length transaction between sophisticated business parties, ably represented by counsel; (ii) the Redemption Premium shall be payable notwithstanding the then-prevailing market rates at the time payment is made; (iii) there has been a course of conduct between the Lenders and the Borrowers and the Guarantors giving specific consideration in this transaction for such agreement to pay the Redemption Premium; and (iv) the Borrowers and the Guarantors shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Borrowers and the Guarantors expressly acknowledge that their agreement to pay the Redemption Premium as herein described is a material inducement to the Lenders’ agreement to enter into this Agreement.

Section 2.06         Termination or Reduction of Commitments.

(a)           [Reserved].

(b)           Mandatory. The Tranche A Term Loan Commitment and the Tranche B Term Loan Commitment of each Lender shall be automatically and permanently reduced to $0 upon the funding of Tranche A Term Loans and the Tranche B Term Loans, as applicable, on the Closing Date.

46

(c)           [Reserved].

Section 2.07         Repayment of Loans.

(a)           Term Loans. (i) The Borrowers shall repay to the Administrative Agent for the ratable account of the Lenders (A) on the first Business Day of each April, July, October and January, commencing January 2, 2024, an aggregate principal amount equal to 0.25% of the aggregate principal amount of all Term Loans (which payments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05) and (B) on the Maturity Date, the aggregate principal amount of all Term Loans outstanding on such date.

(b)           Reserved.

(c)           Reserved.

Section 2.08         Interest. (a) Subject to the provisions of Section 2.08(b), (i) each Term Loan that is maintained as a SOFR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the sum of (A) the Term SOFR for such Interest Period plus (B) the Applicable Margin therefor and (ii) each Term Loan that is maintained as a Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Margin therefor.

(b)           During the continuance of a Default or an Event of Default under Section 8.01(a), the Borrowers shall pay interest on past due amounts owing by it hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws; provided that no interest at the Default Rate shall accrue or be payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender. Accrued and unpaid interest on such amounts (including interest on past due interest) shall be due and payable upon demand.

(c)           Interest on each Term Loan shall be due and payable in cash in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein; provided that upon six (6) Business Days prior written notice to the Administrative Agent at any time prior to the 24 month anniversary of the Closing Date, the Borrowers may elect for any Interest Period to pay in kind up to 50% of interest on the Applicable Margin that accrues prior to the date that is the 24 month anniversary of the Closing Date (such election, a “PIK Interest Election”) (it being understood that all interest on the Term Loans shall be paid in cash on and after the date that is the 24 month anniversary after the Closing Date). In the event the Borrowers make a PIK Interest Election, the portion of the Applicable Margin that is paid in kind shall be increased by 100 basis points. For the avoidance of doubt, for any period during which a PIK Interest Election is in effect, (i) in the case of any Term Loan maintained as a Base Rate Loan, 3.75% of the Applicable Margin shall be payable in cash and 4.75% of the Applicable Margin shall be paid in kind and (ii) in the case of any Term Loan maintained as a SOFR Loan, 4.25% of the Applicable Margin shall be payable in cash and 5.25% of the Applicable Margin shall be paid in kind. Any portion of accrued interest on any Term Loan that is paid in kind pursuant to this Section 2.08(c) shall automatically, by operation of the terms hereof, without the requirement for any Person to take any action or cause anything to be done in order to effectuate such payment, be deemed paid on the due date therefor, by deeming the equivalent Dollar Amount of such accrued interest to be automatically capitalized as an equivalent principal amount of the Term Loans, and, accordingly, such accrued interest amount shall be compounded onto, and added to the aggregate principal amount of the Term Loans outstanding immediately after to such payment. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

47

(d)           [Reserved].

(e)           [Reserved].

(f)            In connection with the use or administration of Term SOFR, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Administrative Agent will promptly notify the Lead Borrower and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR.

Section 2.09         Fees.

(a)           Administrative Agent Fee. The Borrowers agree to pay to the Administrative Agent, for its own account, the administrative agent fees as have been previously agreed in writing or as may be agreed in writing from time to time, including but not limited to, those set forth in the Agent Fee Letter.

(b)           Lender Fee. The Borrowers agree to pay to the Administrative Agent for the account of each Lender on the Closing Date, the fees set forth in the Lender Fee Letter.

(c)           Other Fees. Each of the Applicable Sale Premium and the Applicable Prepayment Premium shall be deemed earned upon the Closing Date and shall be payable upon any JV Sale or Applicable Prepayment Premium Event, if any, in respect of the Term Loan subject to such Applicable Sale Premium or the Applicable Prepayment Premium, as applicable.

Section 2.10         Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by the “Prime Rate” shall be made on the basis of a year of three hundred and sixty-five (365) days, or three hundred and sixty-six (366) days, as applicable, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed. Interest shall accrue on each Term Loan for the day on which the Term Loan is made, and shall not accrue on a Term Loan, or any portion thereof, for the day on which the Term Loan or such portion is paid; provided that any Term Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

48

Section 2.11         Evidence of Indebtedness. (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as non-fiduciary agent for the Borrowers, in each case in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made to the Borrowers, the Borrowers shall execute and deliver to such Lender a Term Note payable to such Lender, which shall evidence such Lender’s Term Loans in addition to such accounts or records. Each Lender may attach schedules to its Term Note and endorse thereon the date, Type (if applicable), amount and maturity of its Term Loans and payments with respect thereto.

(b)           [Reserved].

(c)           Entries made in good faith by the Administrative Agent in the Register pursuant to Section 2.11(a), and by each Lender in its account or accounts pursuant to Section 2.11(a), shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrowers to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrowers under this Agreement and the other Loan Documents.

Section 2.12         Payments Generally. (a) All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in Same Day Funds not later than 4:00 p.m. (New York, New York time) on the dates specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent after 4:00 p.m. (New York, New York time) in the case of payments in Dollars may, at the Administrative Agent’s discretion, be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.

(b)           If any payment to be made by the Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of SOFR Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

49

(c)           Unless the Lead Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrowers or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrowers or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in Same Day Funds, then:

(i)            if the Borrowers failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in Same Day Funds at the applicable Federal Funds Rate from time to time in effect; and

(ii)           if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrowers to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Term Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrowers, and the Borrowers shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Lead Borrower may have against any Lender as a result of any default by such Lender hereunder.

A notice of the Administrative Agent to any Lender or the Lead Borrower with respect to any amount owing under this Section 2.12(c) shall be conclusive, absent manifest error.

(a)           If any Lender makes available to the Administrative Agent funds for any Term Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(b)           The obligations of the Lenders hereunder to make Term Loans are several and not joint. The failure of any Lender to make any Term Loan shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Term Loan.

50

(c)           Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Term Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Term Loan in any particular place or manner.

(d)           Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the Outstanding Amount of all Term Loans or other Obligations then owing to such Lender.

Section 2.13         Sharing of Payments. (a) If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Term Loans made by it any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Term Loans made by them as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Term Loans or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. The Borrowers agree that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.13 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.

51

(b)           Notwithstanding anything to the contrary contained herein, the provisions of the preceding Section 2.13(a) shall be subject to (x) the express provisions of this Agreement which require, or permit, differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and (y) the express provisions of Section 3.07, which permit disproportionate payments with respect to the Term Loans as, and to the extent, provided therein.

Section 2.14         Reserved.

Section 2.15         Reserved.

Section 2.16         Incremental Credit Extensions.

(a)           Reserved.

(b)           Reserved.

(c)           Reserved.

(d)           Reserved.

(e)           Reserved.

(f)            Reserved.

(g)           Reserved.

(h)           Incremental Equivalent Debt. The Borrowers may, upon notice by the Lead Borrower to the Administrative Agent, at any time after the Closing Date, issue, incur or otherwise obtain Indebtedness of Borrowers in respect of a single series of senior or subordinated notes or loans (which may be unsecured or secured solely on a junior lien basis to the Term Loans), and, in the case of notes, issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing (the “Incremental Equivalent Debt”); provided that (i) the aggregate principal amount of Incremental Equivalent Debt incurred or issued under this clause (h) does not exceed $115,000,000, (ii) no Person other than a Loan Party shall provide a Guarantee or otherwise be an obligor with respect to such Incremental Equivalent Debt, (iii) the obligations in respect thereof shall not be secured by any Lien on any asset other than the Collateral, (iv) no Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (v) the security agreements and other collateral documents relating to such Incremental Equivalent Debt shall be substantially similar to the Collateral Documents (with such differences as are reasonably satisfactory to the Collateral Agent in its sole discretion), (vi) such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement reasonably satisfactory to the Lead Borrower and the Required Lenders, (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than 91 days after the then Maturity Date and a Weighted Average Life to Maturity which is no shorter than the Weighted Average Life to Maturity of the Term Loans, (viii) such Incremental Equivalent Debt that is junior in right of payment or security with respect to the Term Loans may only participate in any such mandatory repurchases and prepayments with respect to customary offers to repurchase and prepayment events upon an asset sale or event of loss on a junior basis to the Term Loans, (ix) [reserved] and (x) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Lead Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding the Term Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Required Lenders or (b) applicable only to periods after the Maturity Date at the time of the issuance or incurrence of such Incremental Equivalent Debt). The Borrowers will use the proceeds of the Incremental Equivalent Debt (if any) solely to exchange, redeem or refinance in full the 2025 Senior Notes that remain outstanding after the Closing Date.

52

(i)            Reserved.

(j)            This Section 2.16 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.

Section 2.17         Reserved.

Section 2.18         Reserved.

Section 2.19         Defaulting Lenders.

(a)           Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

(i)            Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.01.

(ii)            Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the funding of any Term Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Term Loans in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Term Loans were made at a time when the conditions set forth in Section 4.03 were satisfied or waived, such payment shall be applied solely to pay the Term Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Term Loans of that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

(iii)          Reserved.

53

(b)           Defaulting Lender Cure. If the Lead Borrower and the Administrative Agent agree in writing that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase that portion of outstanding Term Loans of the other Lenders, whereupon that Lender will cease to be a Defaulting Lender; provided that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

Section 2.20         Borrower Obligations Joint and Several. (a) Each Borrower hereby designates and appoints the Lead Borrower as its agent, attorney-in-fact and legal representative on its behalf for all purposes, including issuing Committed Loan Notices; giving instructions with respect to the disbursement of the proceeds of the Term Loans; paying, prepaying and reducing loans, commitments, or any other amounts owing under the Loan Documents; selecting interest rate options; giving, receiving, accepting and rejecting all other notices, consents or other communications hereunder or under any of the other Loan Documents; and taking all other actions (including in respect of compliance with covenants) on behalf of any Borrower or the Borrowers under the Loan Documents. The Lead Borrower hereby accepts such appointment. The Administrative Agent and each Lender may regard any notice or other communication pursuant to any Loan Document from the Lead Borrower on behalf of one or more Borrowers as a notice or communication from such Borrower. Each warranty, covenant, agreement and undertaking made on behalf of the Co-Borrower by the Lead Borrower shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower. Any action, notice, delivery, receipt, acceptance, approval, rejection or any other undertaking under any of the Loan Documents to be made by the Lead Borrower in respect of the Obligations of the Co-Borrower shall be deemed, where applicable, to be made in the Lead Borrower’s capacity as representative and agent on behalf of each Borrower, and any such action, notice, delivery, receipt, acceptance, approval, rejection or other undertaking shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.

(b)           The Borrowers shall have joint and several liability in respect of all Obligations hereunder and under any other Loan Document to which any Borrower is a party, without regard to any defense (other than the defense that payment in full in Same Day Funds has been made), setoff or counterclaim which may at any time be available to or be asserted by any other Loan Party against the Lenders, or by any other circumstance whatsoever (with or without notice to or knowledge of the Borrowers) which constitutes, or might be construed to constitute, an equitable or legal discharge of either Borrower’s liability hereunder, in bankruptcy or in any other instance, and the Obligations of the Borrowers hereunder shall not be conditioned or contingent upon the pursuit by the Lenders or any other person at any time of any right or remedy against either Borrower or against any other person which may be or become liable in respect of all or any part of the Obligations or against any Collateral or Guarantee therefor or right of offset with respect thereto. Each Borrower hereby acknowledges that this Agreement is the joint and several obligation of each Borrower (regardless of which Borrower shall have delivered a Committed Loan Notice) and may be enforced against each Borrower separately, whether or not enforcement of any right or remedy hereunder has been sought against any other Borrower. Each Borrower hereby expressly waives, with respect to any of the Term Loans made to any other Borrower hereunder and any of the amounts owing hereunder by such other Loan Parties in respect of such Term Loans, diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against such other Loan Parties under this Agreement or any other agreement or instrument referred to herein or against any other person under any other guarantee of, or security for, any of such amounts owing hereunder.

54

Section 2.21         Benchmark Replacement Setting. (a) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent and the Lead Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Lead Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.20(a) will occur prior to the applicable Benchmark Transition Start Date.

(b)           Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

(c)           Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Lead Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Lead Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.20(d) and (v) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.20, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.20.

(d)           Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.

55

(e)           Benchmark Unavailability Period. Upon the Lead Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Lead Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Lead Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans and (ii) any outstanding affected SOFR Loans will be deemed to have been converted to Base Rate Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.

Section 2.22         Tax Treatment. Each of the Loan Parties, the Lenders and the Administrative Agent agree (a) that the Term Loans are debt for U.S. federal income tax purposes, (b) that such debt instrument is issued with OID, (c) that such debt instrument is described in Treasury Regulations Section 1.1272-1(c)(2) and therefore is governed by the rules set out in Treasury Regulations Section 1.1272-1(c), including Section 1.1272-1(c)(5), and is not governed by the rules set out in Treasury Regulations Section 1.1275-4, (d) that the Lead Borrower shall determine the amount of OID on the Term Loans, and (e) to adhere to this treatment for U.S. federal income tax purposes (including withholding obligations of the Borrowers, if any) and not to take any action or file any tax return, report or declaration inconsistent herewith (including with respect to the amount of OID on the Term Loans as determined in accordance with clause (e)). This Section 2.22 is not an admission by any holder that it is subject to U.S. taxation.

Article III

Taxes, Increased Costs Protection and Illegality

Section 3.01         Taxes.

(a)           Payments Free of Taxes. Except as provided in this Section 3.01, or as required by applicable Law, any and all payments made by or on account of any Loan Party under any Loan Document shall be made free and clear of and without deduction or withholding for any and all present or future Taxes, excluding, in the case of each Agent and each Lender, (1) Taxes imposed on or measured by its net income, however denominated, franchise Taxes imposed on it in lieu of net income Taxes, and branch profits Taxes, in each case, (i) imposed by a jurisdiction (or by any political subdivision or taxing authority thereof) in which such Lender or Administrative Agent is organized or the jurisdiction (or by any political subdivision or taxing authority thereof) in which such Lender’s or Administrative Agent’s principal office or applicable Lending Office is located, or (ii) that are Other Connection Taxes, (2) Taxes attributable to such Recipient’s failure to comply with Section 3.01(d), and (3) any U.S. federal withholding Taxes imposed under FATCA (all such excluded Taxes being hereinafter referred to as “Excluded Taxes”, and (x) all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (y) to the extent not otherwise described in (x), Other Taxes, being hereinafter referred to as “Indemnified Taxes”). If the Loan Party or other applicable withholding agent shall be required by any Laws to deduct or withhold any Taxes from or in respect of any sum payable under any Loan Document to any Recipient, (i) if such Taxes are Indemnified Taxes, then the sum payable by such Loan Party shall be increased as necessary so that after making all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 3.01), each of such Recipient receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent shall make such deductions or withholdings, (iii) the applicable withholding agent shall pay the full amount deducted or withheld to the relevant taxation authority or other authority in accordance with applicable Laws, and (iv) within thirty (30) days after the date of such payment (or, if receipts or evidence are not available within thirty (30) days, as soon as possible thereafter), if the Loan Party is the applicable withholding agent, such Loan Party shall furnish to the Agent the original or a copy of a receipt evidencing payment thereof or other evidence reasonably acceptable to the Agent.

56

In addition, each Borrower (jointly and severally) agrees to timely pay any and all present and future stamp, transfer, sales and use, court or documentary Taxes and any other excise, property, intangible or mortgage recording Taxes, or charges or levies of the same character, imposed by any Governmental Authority, which arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, including additions to Tax, penalties and interest related thereto (all taxes described in this paragraph of Section 3.01(a) being hereinafter referred to as “Other Taxes”), save for any Luxembourg Taxes payable upon a voluntary registration of the Loan Document with the Registration and Estates department (Administration de l’Enregistrement, des Domaines et de la TVA), if such voluntary registration is not required to maintain, preserve, establish or enforce the rights of that Loan Party.

(b)           Indemnification by the Borrowers. Each Borrower (jointly and severally) and each Guarantor agrees to indemnify each Recipient, within 10 days demand therefor, for (i) the full amount of Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and (ii) any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided such Recipient, as the case may be, provides the Lead Borrower or such Guarantor with a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts. A certificate as to the amount of such payment or liability delivered to the Lead Borrower or such Guarantor by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(c)           Indemnification by the Lenders. To the extent required by any applicable Law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.07(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (c).

57

(d)           Tax Administration Formalities.

(i)            Each Recipient that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the requesting Loan Party and the Administrative Agent, at the time or times reasonably requested by the such Loan Party or the Administrative Agent, such properly completed and executed documentation reasonably requested by such Loan Party or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. Notwithstanding anything to the contrary in the preceding sentence, the completion, execution and submission of such documentation shall not be required if in the Lender’s reasonable judgment such completion, execution or submission (1) would subject such Lender to any material unreimbursed cost or expense (it being understood that the completion, execution and submission of any documentation no more burdensome than that required for U.S. federal income withholding will not for purposes of this subsection (1) give rise to an exception from the preceding sentence and shall not be considered material unreimbursed cost or expense) or (2) would materially prejudice the legal or commercial position of such Lender (it being understood that the completion, execution and submission of the applicable United States Internal Revenue Service Form W-8 shall not give rise to an exception from the preceding sentence or otherwise be considered prejudicial to the position of a Recipient); provided, however, that in no event shall the Lenders be required to provide its Tax returns or its calculations.

(ii)           Each Recipient shall confirm whether it is entitled to receive payments under any Loan Document free from withholding under FATCA and shall provide any documentation, forms and other information relating to its status under FATCA reasonably requested by the Loan Parties sufficient for the Loan Parties to comply with their obligations under FATCA and to determine whether such Recipient has complied with such applicable reporting requirements.

58

(iii)          Without limiting the generality of the foregoing,

(A)            any Lender that is a U.S. person shall deliver to the Borrower and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; and

(B)             any Lender that is not a U.S. person shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), applicable Internal Revenue Service Form W-8, together with all required attachments, certifying the status of such Lender and, if applicable, its beneficial owners, including in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower described in Section 881(c)(3)(C) of the Code.

Each Recipient agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification, provide such successor form, or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(e)           Designation of Different Lending Office. If any Recipient requests compensation under Section 3.04, or requires the Borrowers or any Loan Party to pay any Indemnified Taxes or additional amounts to any Recipient or any Governmental Authority for the account of any Recipient pursuant to Section 3.01, then such Recipient shall (at the request of the Lead Borrower) use reasonable efforts to designate a different lending office for funding or booking its Term Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Recipient, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, and (ii) would not subject such Recipient to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Recipient. The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Recipient in connection with any such designation or assignment.

(f)            Treatment of Certain Refunds.  If any Recipient determines, in its sole discretion, that it has received a refund in respect of any Indemnified Taxes as to which indemnification or additional amounts have been paid to it by any Loan Party pursuant to this Section 3.01, it shall promptly remit such refund to the Loan Party, net of all reasonable out-of-pocket expenses of the Recipient, as the case may be and without interest (other than any interest paid by the relevant taxing authority with respect to such refund net of any Taxes payable by any Recipient on such interest); provided that the Loan Parties, upon the request of the Recipient, as the case may be, agree promptly to return such refund (plus any penalties, interest or other charges imposed by the relevant taxing authority) to such party in the event such party is required to repay such refund to the relevant taxing authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the Recipient be required to pay any amount to the Loan Party pursuant to this paragraph (f) the payment of which would place the Recipient in a less favorable net after-Tax position than the Recipient would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid. This section shall not be construed to require any Recipient to make available its Tax returns (or any other information relating to Taxes that it deems confidential) to the Borrowers or any other Person.

59

(g)           Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

(h)           All amounts set forth in a Loan Document to be payable by any Loan Party to a Lender or Agent which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to paragraph (j) below, if VAT is or becomes chargeable on any supply made by any Lender or Agent to any Loan Party under a Loan Document and such Lender or Agent is required to account to the relevant taxing authority for the VAT, that Loan Party shall pay to the relevant Lender or Agent (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Lender or Agent shall promptly provide an appropriate VAT invoice to such Loan Party).

(i)            If VAT is or becomes chargeable on any supply made by any Lender or Agent (the “Supplier”) to any other Lender or Agent (the “Recipient”) under a Loan Document, and any Loan Party other than the Recipient (the “Subject Party”) is required by the terms of any Loan Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration) (i) (where the Supplier is the Person required to account to the relevant tax authority for the VAT) the Subject Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this sub-paragraph (i) applies) promptly pay to the Subject Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and (ii) (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Subject Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

(j)            Where a Loan Document requires any Loan Party to reimburse or indemnify a Lender or Agent for any cost or expense, that Loan Party shall reimburse or indemnify (as the case may be) such Lender or Agent for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Lender or Agent reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

(k)           Any reference in paragraphs 3.01(h)-(l) to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction which is not a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).

60

(l)            In relation to any supply made by a Party to any other Party under a Loan Document, if reasonably requested by such Party, that other Party must promptly provide such Party with details of that other Party’s VAT registration and such other information as is reasonably requested in connection with such Party’s VAT reporting requirements in relation to such supply.

Section 3.02         Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund SOFR Loans, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, any obligation of such Lender to make or continue SOFR Loans shall be suspended until such Lender notifies the Administrative Agent and the Lead Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Lead Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or convert all of such Lender’s SOFR Loans to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Base Rate) either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such SOFR Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such SOFR Loans; and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon Term SOFR, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Term SOFR component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon Term SOFR. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted and all amounts due, if any, in connection with such prepayment or conversion under Section 3.05. Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.

Section 3.03         Inability to Determine Rates. Subject to Section 2.20, if, on or prior to the first day of any Interest Period for any SOFR Loan:

(a)           the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof, or

(b)           the applicable Required Lenders determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Lenders of making and maintaining such Term Loan, and the Required Lenders have provided notice of such determination to the Administrative Agent,

then, in each case, the Administrative Agent will promptly so notify the Lead Borrower and each Lender.

61

Upon notice thereof by the Administrative Agent to the Lead Borrower, any obligation of the applicable Lenders to make SOFR Loans, and any right of the Borrower to continue SOFR Loans or to convert Base Rate Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until the Administrative Agent (with respect to clause (b), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the Lead Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, the Lead Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period. Upon any such conversion, the Lead Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 3.05. If the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by the Administrative Agent without reference to the “Term SOFR” component of the definition of “Base Rate” until the Administrative Agent revokes such determination.

Section 3.04         Increased Cost and Reduced Return; Capital Adequacy. (a) If any Lender reasonably determines that as a result of the introduction of or any change in or in the interpretation of any Law, in each case after the Closing Date, or such Lender’s compliance therewith, there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining any SOFR Loans, or a reduction in the amount received or receivable by such Lender in connection with the foregoing (excluding for purposes of this Section 3.04(a) any such increased costs or reduction in amount resulting from (1) Indemnified Taxes or Excluded Taxes or (2) reserve requirements contemplated by Section 3.04(c)) and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining the SOFR Loan (or of maintaining its obligations to make any Term Loan), or to reduce the amount of any sum received or receivable by such Lender, then from time to time within fifteen (15) days after demand by such Lender setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrowers shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction.

(b)           If any Lender determines that the introduction of any Law regarding capital adequacy or any change therein or in the interpretation thereof, in each case after the Closing Date, or compliance by such Lender (or its Lending Office) therewith, has the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of such Lender’s obligations hereunder (taking into consideration its policies with respect to capital adequacy and such Lender’s desired return on capital), then from time to time upon demand of such Lender setting forth in reasonable detail the charge and the calculation of such reduced rate of return (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrowers shall pay to such Lender such additional amounts as will compensate such Lender for such reduction within fifteen (15) days after receipt of such demand.

62

(c)           [Reserved].

(d)           [Reserved].

(e)           Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.04 shall not constitute a waiver of such Lender’s right to demand such compensation.

(f)            If any Lender requests compensation under this Section 3.04, then such Lender will, if requested by the Lead Borrower, use reasonable efforts to designate another Lending Office for any Term Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.04(f) shall affect or postpone any of the Obligations of the Borrowers or the rights of such Lender pursuant to Section 3.04(a), (b) or (c).

(g)           For purposes of this Section 3.04, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall, in each case, be deemed to have gone into effect after the date hereof, regardless of the date enacted, adopted or issued.

Section 3.05         Funding Losses. Upon written demand of any Lender (with a copy to the Administrative Agent) from time to time, which demand shall set forth in reasonable detail the basis for requesting such amount, the Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense actually incurred by it as a result of:

(a)           any continuation, conversion, payment or prepayment of any SOFR Loan of either Borrower on a day other than the last day of the Interest Period for such Term Loan; or

(b)           any failure by the Borrowers (for a reason other than the failure of such Lender to make a Term Loan) to prepay, borrow, continue or convert any SOFR Loan of the Borrowers on the date or in the amount notified by the Lead Borrower;

including any loss or expense (excluding loss of anticipated profits) arising from the liquidation or reemployment of funds obtained by it to maintain such Term Loan or from fees payable to terminate the deposits from which such funds were obtained.

Section 3.06         Matters Applicable to All Requests for Compensation. (a)  Any Agent or any Lender claiming compensation under this Article III shall deliver a certificate to the Lead Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods.

63

(b)           With respect to any Lender’s claim for compensation under Section 3.01, 3.02, 3.03 or 3.04, the Lead Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Lead Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. If any Lender requests compensation by the Borrowers under Section 3.04, the Lead Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue from one Interest Period to another applicable SOFR Loan, or, if applicable, to convert Base Rate Loans into SOFR Loans, until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 3.06(c) shall be applicable); provided that such suspension shall not affect the right of such Lender to receive the compensation so requested.

(c)           If the obligation of any Lender to make or continue any SOFR Loan, or to convert Base Rate Loans into SOFR Loans, shall be suspended pursuant to Section 3.06(b) hereof, such Lender’s applicable SOFR Loans shall be automatically converted into Base Rate Loans (or, if such conversion is not possible, repaid) on the last day(s) of the then current Interest Period(s) for such SOFR Loans (or, in the case of any immediate conversion required by Section 3.02, on such earlier date as required by Law) and, unless and until such Lender gives notice as provided below that the circumstances specified in Section 3.02, 3.03 or 3.04 hereof that gave rise to such conversion no longer exist:

(i)            to the extent that such Lender’s SOFR Loans have been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s applicable SOFR Loans shall be applied instead to its Base Rate Loans; and

(ii)           all Term Loans that would otherwise be made or continued from one Interest Period to another by such Lender as SOFR Loans shall be made or continued instead as Base Rate Loans (if possible), and all Base Rate Loans of such Lender that would otherwise be converted into SOFR Loans shall remain as Base Rate Loans.

(d)           If any Lender gives notice to the Lead Borrower (with a copy to the Administrative Agent) that the circumstances specified in Section 3.02, 3.03 or 3.04 hereof that gave rise to the conversion of any of such Lender’s SOFR Loans pursuant to this Section 3.06 no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when SOFR Loans made by other Lenders are outstanding, if applicable, such Lender’s Base Rate Loans shall be automatically converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding SOFR Loans, to the extent necessary so that, after giving effect thereto, all Term Loans held by the Lenders holding SOFR Loans and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Commitments.

64

Section 3.07         Replacement of Lenders under Certain Circumstances. (a)  If at any time (i) the Borrowers become obligated to pay additional amounts or indemnity payments described in Section 3.01 or 3.04 as a result of any condition described in such Sections or any Lender ceases to make any SOFR Loans as a result of any condition described in Section 3.02 or Section 3.04, (ii) any Lender becomes a Defaulting Lender or (iii) any Lender becomes a Non-Consenting Lender, then the Lead Borrower may on ten (10) Business Days’ prior written notice to the Administrative Agent and such Lender and, in the case of clause (y) below only, with the prior written consent of the Required Lenders; provided that such consent shall not be required in the case of the termination of Commitments of Defaulting Lenders, (x) replace such Lender by causing such Lender to (and such Lender shall be obligated to) assign, at par, pursuant to Section 10.07(b) (with the assignment fee to be paid by the Lead Borrower in such instance) all of its rights and obligations under this Agreement to one or more Eligible Assignees, none of which shall constitute a Defaulting Lender; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Lead Borrower to find a replacement Lender or other such Person; and provided further that (A) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments and (B) in the case of any such assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable Eligible Assignees shall have agreed to, and shall be sufficient (together with all other consenting Lenders) to cause the adoption of, the applicable departure, waiver or amendment of the Loan Documents; or (y) terminate the Commitment of such Lender and repay all Obligations of the Lead Borrower owing to such Lender relating to the Term Loans; provided that in the case of any such termination of a Non-Consenting Lender such termination shall be sufficient (together with all other consenting Lenders) to cause the adoption of the applicable departure, waiver or amendment of the Loan Documents.

(b)           Any Lender being replaced pursuant to Section 3.07(a) above shall (i) execute and deliver an Assignment and Assumption with respect to such Lender’s applicable Commitment and outstanding Term Loans, and (ii) deliver any Term Notes evidencing such Term Loans to the Lead Borrower or Administrative Agent. Pursuant to such Assignment and Assumption, (A) the assignee Lender shall acquire all or a portion, as the case may be, of the assigning Lender’s Commitment and outstanding Term Loans, (B) all obligations of the Borrowers owing to the assigning Lender relating to the Term Loans, Commitments shall be paid in full by the assignee Lender to such assigning Lender (other than any amounts owing to the assigning Lender pursuant to Section 3.05, which shall be paid in full by the Borrowers) concurrently with such Assignment and Assumption and (C) upon such payment and, if so requested by the assignee Lender, delivery to the assignee Lender of the appropriate Term Note or Term Notes executed by the Borrowers, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute a Lender hereunder with respect to such assigned Term Loans and Commitments, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender. In connection with any such replacement, if any such Non-Consenting Lender or Defaulting Lender does not execute and deliver to the Administrative Agent a duly executed Assignment and Assumption reflecting such replacement within five (5) Business Days of the date on which the assignee Lender executes and delivers such Assignment and Assumption to such Non-Consenting Lender or Defaulting Lender, then such Non-Consenting Lender or Defaulting Lender shall be deemed to have executed and delivered such Assignment and Assumption without any action on the part of the Non-Consenting Lender or Defaulting Lender.

(c)           [Reserved].

65

(d)           In the event that (i) the Lead Borrower or the Administrative Agent has requested that the Lenders consent to a departure or waiver of any provisions of the Loan Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all affected Lenders in accordance with the terms of Section 10.01 or all the Lenders with respect to a certain Class of the Term Loans and (iii) the Required Lenders have agreed (but solely to the extent required by Section 10.01) to such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a “Non-Consenting Lender.”

Section 3.08         Survival. All of obligations of the Lead Borrower and the Co-Borrower under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.

Article IV

Conditions Precedent to Credit Extensions

Section 4.01         Conditions Precedent to Funding of Tranche A Term Loans. The obligation of each Lender to make the Tranche A Term Loans on the Closing Date is subject at the time of the making of such Tranche A Term Loans to the satisfaction of the following conditions:

(a)           Credit Agreement; Term Notes. This Agreement shall have been duly executed and delivered by the Borrowers and each Guarantor and there shall have been delivered to the Administrative Agent for the account of each of the Lender, a Term Note executed by the Borrowers in favor of each Lender in respect of the Tranche A Term Loans, in each case in the amount, maturity and as otherwise provided herein.

(b)           Security. (i)  The Lenders shall have received the results of (x) Uniform Commercial Code lien searches and (y) judgment and tax lien searches and other customary searches, made with respect to the Domestic Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names listed on the Perfection Certificate, together with (in the case of clause (x)) copies of the financing statements (or similar documents) disclosed by such search, (ii) the Security Agreement shall have been duly executed and delivered by each Domestic Loan Party, (iii) the Intercompany Parent Note and accompanying allonge; (iv) each of the Luxembourg Share Pledge Agreement and the Luxembourg Receivables Pledge Agreement shall have been duly executed and delivered by each relevant Loan Party; (v) certificates representing the pledged Equity Interest of the Borrowers accompanied by undated stock powers executed in blank (or the equivalent in other jurisdictions, including with respect to the Lead Borrower a copy of its shareholders' register (registre des associés) evidencing the registration of the pledge created under the Luxembourg Share Pledge Agreement) and (vi) documents and instruments to be recorded, filed or stamped (including the UCC financial statements) that the Collateral Agent and the Lenders may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.

(c)           Legal Opinions. The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of (A) Ropes & Gray LLP, special counsel for the Loan Parties and (B) from each local counsel for the Foreign Loan Parties (or counsel for the Lenders if it is customary in the relevant jurisdiction for such counsel to deliver such opinion), in each case, dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance reasonably satisfactory to the Administrative Agent and customary for senior secured credit facilities in transactions of this kind.

66

(d)           Solvency Certificate. The Administrative Agent shall have received a solvency certificate from the chief financial officer of Parent, or, if no chief financial officer has been appointed, from a Responsible Officer of Parent, in the form of Exhibit G hereto.

(e)           Luxembourg Deliverables. The Administrative Agent shall have received for each Luxembourg Loan Party, a certificate signed by a manager (gérant) of such Luxembourg Loan Party dated as of the Closing Date including the following documents and certifications (i) its up-to-date articles of association, (ii) a copy of the resolutions duly adopted by the board of managers of such Luxembourg Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and the granting of Liens to secure the Loan Parties’ Obligations hereunder, and, in the case of the Lead Borrower, the borrowings hereunder, (iii) an excerpt (extrait) from the R.C.S. Luxembourg dated as of the Closing Date, (iv) a certificate of non-registration of judicial decisions or of administrative dissolution without liquidation (certificat de non-inscription d'une décision judiciaire ou de dissolution administrative sans liquidation), from by the R.C.S. Luxembourg dated as of the Closing Date, (v) it is not subject to nor, as applicable, does it meet or threaten to meet the criteria of bankruptcy (faillite), insolvency, administrative dissolution without liquidation (dissolution administrative sans liquidation), voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganization or similar laws affecting the rights of creditors generally in Luxembourg or abroad, or any analogous procedure in any jurisdiction, nor subject to any proceedings under the Insolvency Regulation, no application has been made or is to be made by its managers or, as far as it is aware, by any other person for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings, it is not in a cessation of payments (cessation de paiements) and has not lost its creditworthiness (ébranlement de crédit), (vi) specimen signatures of each person authorised to executed the Loan Documents to which it is a party, (vii) it complies with the Luxembourg legislation and regulations on the domiciliation of companies, and in particular with the Luxembourg Act dated 31 May 1999 on the domiciliation of companies, as amended from time to time, (viii) that borrowing, securing or guaranteeing, as applicable, the Aggregate Commitments, will not exceed any borrowing, security, guarantee or similar limit binding on such Luxembourg Loan Party to be exceeded, and (ix) that each copy document relating to it specified in this Article IV (Conditions Precedent to Credit Extensions) is correct, complete and in full force and effect as at a date no earlier than the Closing Date.

(f)            Insurance. The Administrative Agent shall have received certificates of insurance complying with the requirements of Section 6.07(b) for the business of the Borrowers, in form and substance reasonably satisfactory to the Administrative Agent and naming the Collateral Agent as an additional insured and/or as loss payee.

67

(g)           Organization Documents. The Administrative Agent shall have received (i) a copy of the Organization Documents, including all amendments thereto, of each Loan Party (other than a Luxembourg Loan Party), certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing or comparable certificate under applicable law (where relevant) of each Loan Party (other than a Luxembourg Loan Party) as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary or other Responsible Officer under applicable law of each Loan Party (other than a Luxembourg Loan Party) dated the Closing Date and certifying (where relevant) (A) that attached thereto is a true and complete copy of the Organization Documents of such Loan Party as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or board of managers (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and the granting of Liens to secure the Loan Parties’ Obligations hereunder, and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) (save in respect of each Luxembourg Loan Party) that the Organization Documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing or comparable certificate under applicable law furnished pursuant to clause (i) above, (D) as to (if applicable) the incumbency and specimen signature of each Responsible Officer executing any Loan Document on behalf of such Loan Party and countersigned by another officer or manager as to the incumbency and specimen signature of the Secretary or Assistant Secretary or comparable officer under applicable law executing the certificate pursuant to clause (ii) above, (E) if required by the articles of association or laws of the jurisdiction of its incorporation or organization of any Loan Party (if applicable) or in the context of any pledge of shares granted over the shares in the capital in any Loan Party, a copy of a resolution of the general meeting or a resolution in writing signed by all the holders of the issued shares (if applicable) of that company, (F) if applicable, a copy of a resolution signed by the supervisory board of the relevant Loan Party, and (G) such other matters that are customarily included in a certificate of this nature in the jurisdiction of its incorporation or organization.

(h)           Designation. On or before the Closing Date, the Administrative Agent shall have received evidence satisfactory to it that each of the Co-Borrower and Holdings have been designated by the Board of Directors of the Trinseo Lead Borrower as an “Unrestricted Subsidiary” for purposes of, in accordance with and pursuant to the Trinseo Credit Agreement, the 2025 Senior Notes and the 2029 Senior Notes, respectively.

(i)            Fees, Etc. All duties, fees, reasonable costs and expenses (including, without limitation, legal fees and expenses) and other compensation contemplated hereby, payable to the Agents (including pursuant to the Agent Fee Letter) and the Lenders (including pursuant to the Lender Fee Letter) or otherwise payable in respect of the Transactions shall have been paid to the extent due.

(j)            USA PATRIOT Act. The Administrative Agent and the Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrowers reasonably requested by the Administrative Agent under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.

68

(k)           Equity Contribution. The Administrative Agent and the Lenders shall have received a certificate duly executed by a Responsible Officer of the Parent certifying that with the proceeds of the Tranche A Term Loans, the Lead Borrower will immediately make the Intercompany Parent Loan to Parent, and immediately thereafter, Parent will make an equity contribution in an amount not less than $125,000,000 to Trinseo Holdings, and Trinseo Holdings will immediately thereafter contribute the same to Trinseo Lead Borrower, which equity contribution shall be designated as an “Excluded Contribution” (as such term is defined in the 2025 Senior Indenture and the 2029 Senior Indenture) for purposes of the 2025 Senior Indenture and the 2029 Senior Indenture (the “Equity Contribution”).

Section 4.02         Conditions Precedent to Funding of Tranche B Term Loans. The obligation of each Lender to make the Tranche B Term Loans on the Closing Date is subject at the time of the making of such Tranche B Term Loans to the satisfaction of the following conditions:

(a)            JV Interests. The Administrative Agent and the Lenders shall have received a true, correct and complete copy of the transfer agreement pursuant to which Trinseo LLC has transferred the JV Interests to the Co-Borrower and an Officer’s Certificate duly executed by a Responsible Officer of the Co-Borrower certifying that, upon giving effect to such transfer, the Co-Borrower directly owns the JV Interests free and clear of all Liens.

(b)           Term Notes. A Term Note executed by the Borrowers in favor of each Lender in respect of the Tranche B Term Loans, in each case in the amount, maturity and as otherwise provided herein.

(c)           2023 Incremental and Refinancing Amendment; Refinancing. The Lead Borrower shall substantially simultaneously with the funding of the Tranche B Term Loans enter into the 2023 Incremental and Refinancing Amendment.

(d)           Equity Contribution. The Equity Contribution shall have been consummated.

Section 4.03         All Credit Events. The obligation of each Lender to make any Credit Extension (other than a Committed Loan Notice requesting only a conversion of Term Loans to the other Type, or a continuation of SOFR Loans) is subject to the following conditions precedent:

(a)           The representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Extension with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date.

(b)           No Default or Event of Default shall exist or would result from such proposed Credit Extension or from the application of the proceeds therefrom.

(c)           The Administrative Agent shall have received a Committed Loan Notice in respect of the requested Borrowing in accordance with the requirements hereof.

69

Each Committed Loan Notice requesting a Credit Extension (other than a Committed Loan Notice requesting only a conversion of Term Loans to the other Type, or a continuation of SOFR Loans) submitted by the Lead Borrower after the Closing Date shall be deemed to be a representation and warranty that the conditions specified in Sections 4.03(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.

For purposes of determining compliance with the conditions specified in Sections 4.01, 4.02 and 4.03 on the Closing Date, each Lender that has signed or authorized the signing of this Agreement shall be deemed to have been satisfied with each document or other matter under Sections 4.01, 4.02 and 4.03 that is required to be acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto.

Article V

Representations and Warranties

Each of the Loan Parties represents and warrants to the Agents and the Lenders on the Closing Date and at the time of each Credit Extension that:

Section 5.01         Existence, Qualification and Power; Compliance with Laws. Each Loan Party (a) is a Person duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization (to the extent such concept exists in such jurisdiction), (b) has all requisite power and authority to (i) own or lease its assets and carry on its business as currently conducted and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and in good standing (to the extent such concept exists in such jurisdiction) under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, (d) is in compliance with all Laws, orders, writs and injunctions and (e) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted; except, in each case referred to in clause (a) (other than with respect to each Borrower), (b)(i) (other than with respect to each Borrower), (c), (d) or (e), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

Section 5.02         Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and the consummation of the Transactions, are within such Loan Party’s corporate or other powers, (a) have been duly authorized by all necessary corporate or other organizational action, and (b) do not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01), or require any payment to be made under (x) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or (y) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, or (iii) violate any material Law; except with respect to any conflict, breach, contravention or payment (but not the creation of any Lien) referred to in clause (ii)(x), to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect.

70

Section 5.03         Governmental Authorization; Other Consents. (a) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the consummation of the Transactions, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings and registrations necessary to perfect, as applicable, the Liens or register the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been (or, within the applicable period set out in the relevant Collateral Document, will be) duly obtained, taken, given or made and are or (within such applicable period will be) in full force and effect (except to the extent not required to be obtained, taken, given or made or in full force and effect pursuant to the Collateral and Guarantee Requirement) and (iii) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect.

(b)           Any Luxembourg Loan Party has carried out its activities and will continue to carry out its activities in a manner which complies with all relevant regulatory requirements regarding activities of the financial sector and in a manner which does not require it to be authorized under the Luxembourg Act, dated April 5, 1993, on the financial sector, as amended.

Section 5.04         Binding Effect. This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is a party thereto. This Agreement and each other Loan Document constitute legal, valid and binding obligations of such Loan Party, enforceable against each Loan Party that is a party thereto in accordance with its terms, except as such enforceability may be limited by (i) Debtor Relief Laws and by general principles of equity, (ii) the need for filings, registrations and, with respect to Collateral owned by Foreign Loan Parties, any other perfection steps necessary to create or perfect or register the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties and (iii) the effect of foreign Laws, rules and regulations as they relate to pledges, if any, of Equity Interests in Foreign Loan Parties and intercompany Indebtedness owed by Foreign Loan Parties.

Section 5.05         Financial Statements; No Material Adverse Effect. (a) To the knowledge of the Lead Borrower, the Annual Financial Statements and the Quarterly Financial Statements fairly present in all material respects the financial condition of Americas Styrenics as of the dates thereof and the results of operations for the periods covered thereby in accordance with GAAP consistently applied throughout the periods covered thereby, (A) except as otherwise expressly noted therein and (B) subject, in the case of the Quarterly Financial Statements, to changes resulting from normal year-end adjustments and absence of footnotes.

(b)           Since December 31, 2022, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

71

Section 5.06         Litigation. There are no actions, suits, proceedings, claims or disputes pending or, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 5.07         Ownership of Property; Liens. (a) Each of the Loan Parties has good record and marketable title in fee simple to, or valid leasehold interests in, all Real Property necessary or used in the ordinary conduct of its business, except for such defects in title that, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

(b)           Schedule 6 to the Perfection Certificate dated as of the Closing Date contain a true and complete list of all Real Property owned by the Loan Parties as of the Closing Date.

Section 5.08         Environmental Matters. Except as disclosed in Schedule 5.08(a) or except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:

(a)           each Loan Party is in compliance with all applicable Environmental Laws, and has obtained, and is in compliance with, all Environmental Permits required of any of them under applicable Environmental Laws;

(b)           there are no claims, proceedings, investigations or actions by any Governmental Authority or other Person pending, or to the knowledge of the Lead Borrower, threatened in writing, under any Environmental Law or to revoke, suspend or modify any Environmental Permit held by any of the Loan Parties under applicable Environmental Laws;

(c)           none of the Loan Parties has agreed to assume or accept responsibility, by contract or otherwise, for any Environmental Liability of any other Person; and

(d)           there are no facts, circumstances or conditions relating to the past or present business or operations of any of the Loan Parties or any of their respective predecessors (including the disposal of any wastes, hazardous substances or other materials), or to any Real Property at any time owned, leased or operated by any of them, that could reasonably be expected to give rise to any Environmental Liability on the part of the Loan Parties.

Section 5.09         Taxes. Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each of the Loan Parties have timely filed all returns, statements, forms and reports for Taxes required to be filed, and such returns accurately reflect all liability for Taxes of the Loan Parties for the periods covered thereby. Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each of the Loan Parties have timely paid all Taxes levied or imposed upon them or their properties that are due and payable (including in their capacity as a withholding agent), except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP if such contest shall have the effect of suspending enforcement or collection of such Taxes. There is no action, suit, proceeding, investigation, audit, or claim now pending or, to the best knowledge of the Loan Parties, threatened by any authority regarding any Taxes relating to the Loan Parties, nor is there any proposed Tax deficiency or assessment known to any Loan Parties against the Loan Parties that would, if made, individually or in the aggregate, have a Material Adverse Effect.

72

Section 5.10         ERISA Compliance. (a) Except as could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Pension Plan is in compliance in form and operation with its terms and with the applicable provisions of ERISA, the Code and all other applicable Laws and regulations.

(b)           (i) No ERISA Event has occurred during the five year period prior to the date on which this representation is made or deemed made; (ii) no Loan Party or ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iii) no Loan Party or ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (iv) no Loan Party or ERISA Affiliate has engaged in a transaction that could reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA; except, with respect to each of the foregoing clauses (i) through (iv) of this Section 5.10(b), as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

(c)           Except as could not reasonably be expected to result in a Material Adverse Effect: (i) each Foreign Pension Plan maintained or administered by a Loan Party has been maintained in compliance with its terms and with the requirements of any and all applicable laws, statutes, rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatory authorities; (ii) all contributions required to be made by a Loan Party with respect to a Foreign Pension Plan have been timely made and the Loan Parties have not incurred any obligation in connection with the termination of, or withdrawal from, any Foreign Pension Plan; and (iii) each Foreign Pension Plan maintained or administered by the Loan Party is funded to the extent required by Law or otherwise to comply with the requirements of any material Law applicable in the jurisdiction in which such Foreign Pension Plan is maintained.

Section 5.11         Subsidiaries; Equity Interests. As of the Closing Date, no Loan Party has any Subsidiaries other than (a) the Lead Borrower and Trinseo Holdings are wholly-owned Subsidiaries of Parent and (b) the Co-Borrower is a wholly-owned Subsidiary of Holdings. All of the outstanding Equity Interests owned by the Loan Parties in such Subsidiaries have been validly issued and are fully paid and all Equity Interests owned by a Loan Party in such Subsidiaries are owned free and clear of all Liens except (i) those created under the Collateral Documents and (ii) any Lien that is permitted under Section 7.01. As of the Closing Date, the Perfection Certificate (a) sets forth the name and jurisdiction of each Guarantor and each Borrower and (b) sets forth the ownership interest of each Guarantor and each Borrower, including the percentage of such ownership.

Section 5.12         Margin Regulations; Investment Company Act. (a) No Borrower is engaged nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Borrowings will be used for any purpose that violates Regulation U.

73

(b)           None of the Borrowers or any other Loan Party is, or is required to be, registered as an “investment company” under the Investment Company Act of 1940.

Section 5.13         Disclosure. To the best knowledge of the Lead Borrower, no report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party (other than projected financial information, pro forma financial information and information of a general economic or industry nature) to any Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein (when taken as a whole), in the light of the circumstances under which they were made, not materially misleading. With respect to projected financial information and pro forma financial information, the Borrowers represent that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation of such materials; it being understood that such projections may vary from actual results and that such variances may be material.

Section 5.14         Designation. As of the Closing Date and at all times thereafter, each of the Co-Borrower and Holdings shall have been designated by the Board of Directors of Trinseo Lead Borrower and shall remain an “Unrestricted Subsidiary” of the Trinseo Lead Borrower and its Restricted Subsidiaries for purposes of, in accordance with and pursuant to the Trinseo Credit Agreement, the 2025 Senior Notes, the 2029 Senior Notes and any other Indebtedness of the Trinseo Lead Borrower and its Restricted Subsidiaries at any time outstanding, including without limitation, any refinancing Indebtedness of any of the foregoing.

Section 5.15         Intellectual Property; Licenses, Etc. No Loan Party owns, licenses or possesses the right to use any trademarks, service marks, trade names, domain names, copyrights, patents, patent rights, technology, domain names, software, trade secrets, know-how database rights, design rights and other intellectual property rights (collectively, “IP Rights”). No claim, accused infringements or litigation regarding any of the IP Rights is pending or threatened in writing against any Loan Party.

Section 5.16         Solvency. On the Closing Date, upon giving effect to the Transactions, the Loan Parties, when taken as a whole, are Solvent.

Section 5.17         Subordination of Junior Financing. The Obligations are “Senior Debt,” “Senior Indebtedness,” “Guarantor Senior Debt” or “Senior Secured Financing” (or any comparable term) under, and as defined in, any Junior Financing Documentation.

Section 5.18         Collateral Documents; Valid Liens. Except as otherwise contemplated hereby or under any other Loan Documents, the provisions of the Collateral Documents and any other documents and instruments necessary to satisfy the Collateral and Guarantee Requirement, together with such filings and other actions required to be taken hereby or by the applicable Collateral Documents (including the delivery to the Administrative Agent of any Pledged Debt and any Pledged Equity required to be delivered pursuant to the applicable Collateral Documents), are effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, except as otherwise provided hereunder, including subject to Liens permitted by Section 7.01, a legal, valid, enforceable and perfected first priority Lien on all right, title and interest of the respective Loan Parties in the Collateral described therein.

74

Section 5.19         Centre of Main Interest. For the purposes of the Insolvency Regulation, the centre of main interest (as that term is used in Article 3(1) of the Insolvency Regulation) of each Guarantor and each Borrower that is incorporated in a jurisdiction within the European Union is situated in the jurisdiction of its registered office and it has no “establishment” (as that term is used in Article 2(10) of the Insolvency Regulation) in any other jurisdiction.

Section 5.20         Pensions Act. (a) No Loan Party is or has been an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pension Schemes Act 1993 as amended).

(b)           No Loan Party is or has been “connected” with or an “associate” of (as those terms are used in sections 39 and 43 of the Pensions Act 2004) such an employer.

Section 5.21         Reserved.

Section 5.22         USA Patriot Act, Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions. (a) The Loan Parties and their respective directors, officers and employees and, to the knowledge of the Loan Parties, the agents of the Loan Parties, are in compliance with all applicable Sanctions and with the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”) and any other applicable anti-corruption law, in all material respects. The Borrower and its Subsidiaries have instituted and maintain policies and procedures designed to ensure continued compliance with applicable Sanctions, the FCPA and any other applicable anti-corruption laws.

(b)           None of the Loan Parties, or any director, officer, or to the knowledge of the Loan Parties, any controlled Affiliate of any of the Loan Parties is an individual or entity (“person”) that is, or is owned or controlled by persons that are: (i) the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is the subject of Sanctions (including Crimea, the so-called Luhansk People’s Republic, the so-called Donetsk People’s Republic, Cuba, Iran, North Korea and Syria).

(c)           (i) None of the Loan Parties will directly or indirectly, use the proceeds of the Term Loans in violation of applicable Sanctions or otherwise knowingly make available such proceeds to any Person for the purpose of financing the activities or business of or with any Sanctioned Person, or in any Sanctioned Country, (ii) none of the Loan Parties, their respective directors, officers or employees or, to the knowledge of Parent, any controlled Affiliate of the Loan Parties or their respective Subsidiaries that will act in any capacity in connection with or benefit from the Term Loans, is a Sanctioned Person and (iii) none of the Loan Parties, to the knowledge of the Loan Parties, their respective directors, officers and employees are in violation of applicable Sanctions in any material respect.

75

Section 5.23         Luxembourg Specific Representations. (i) Each Luxembourg Loan Party is in compliance with the Luxembourg Act dated May 31, 1999 on the domiciliation of companies, as amended from time to time and all related regulations and (ii) the head office (administration centrale), the place of effective management (siège de direction effective) and (for the purposes of the Insolvency Regulation) the center of main interests (centre des intérêts principaux) of each Luxembourg Loan Party in Luxembourg is located at the place of its registered office (siège statutaire) in Luxembourg.

Article VI

Affirmative Covenants

So long as any Lender shall have any Commitment hereunder, any Term Loan or other Obligation (other than contingent indemnification obligations as to which no claim has been asserted) hereunder which is accrued and payable shall remain unpaid or unsatisfied, then from and after the Closing Date, each Loan Party shall:

Section 6.01         Financial Statements. (a) Deliver to the Administrative Agent for prompt further distribution to each Lender, within ninety (90) days after the end of each fiscal year completed after the Closing Date, a balance sheet of Americas Styrenics as at the end of such fiscal year, and the related statements of income or operations, stockholders’ equity and cash flows for such fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of Deloitte LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion (i) shall be prepared in accordance with generally accepted auditing standards and (ii) shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (except as may be required as a result of the impending maturity of any Indebtedness);

(b)           Deliver to the Administrative Agent for prompt further distribution to each Lender, within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of Americas Styrenics completed after the Closing Date, a balance sheet of Americas Styrenics as at the end of such fiscal quarter and the related (i) statements of income or operations for such fiscal quarter and for the portion of the fiscal year then ended and (ii) statements of cash flows for such fiscal quarter and the portion of the fiscal year then ended, certified by a Responsible Officer of the Co-Borrower as to the best of his or her knowledge, fairly presenting in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of Americas Styrenics in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;

(c)           Deliver to the Administrative Agent for prompt further distribution to each Lender, no later than ninety (90) days after the end of each fiscal year of Americas Styrenics completed after the Closing Date, a detailed budget for the following fiscal year on a quarterly basis and for the next succeeding two years on an annual basis (including statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto) (collectively, the “Projections”);

76

(d)           Deliver to the Administrative Agent for prompt further distribution to each Lender, (i) no later than forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrowers completed after the Closing Date and (ii) no later than ninety (90) days after the end of each fiscal year of the Borrowers completed after the Closing Date, a cash transaction report for each Borrower substantially in the form delivered to the Administrative Agent prior to the Closing Date.

(e)           no later than seven (7) Business Days after the end of calendar month, cause to be delivered to the Administrative Agent for prompt further distribution to each Lender, a certificate executed by a Responsible Officer of the Trinseo Lead Borrower providing detailed calculations of Liquidity for the calendar month most recently ended; and

(f)            Deliver to the Administrative Agent for prompt further distribution to each Lender, each set of consolidated financial statements and Projections of the Trinseo Lead Borrower and its Restricted Subsidiaries delivered pursuant to Sections 6.01(a), (b), (c) and (d) of the Trinseo Credit Agreement promptly (but in no event later than one (1) Business Day) following delivery of same to the Lead Borrower.

Notwithstanding the foregoing, the obligations in clause (a) and  (f) of this Section 6.01 may be satisfied with respect to financial information of the Trinseo Lead Borrower and its Restricted Subsidiaries by furnishing the Trinseo Lead Borrower’s (or any parent’s) Form 10-K or 10-Q, as applicable, filed with the SEC; provided that (i) to the extent such information relates to a parent of Trinseo Lead Borrower, such information is accompanied by unaudited consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Trinseo Lead Borrower and its Restricted Subsidiaries on a standalone basis, on the other hand.

Documents required to be delivered pursuant to this Section 6.01 and Section 6.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on the Lead Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent, the Lead Borrower shall deliver paper copies of such documents (which may be electronic copies delivered via electronic mail) to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Lead Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.

Section 6.02         Certificates; Other Information. Deliver to the Administrative Agent for prompt further distribution to each Lender:

(a)           no later than five (5) days after the delivery of the financial statements referred to in Section 6.01(a) and (b) of the Trinseo Credit Agreement to the Lead Borrower, a true, correct and complete copy of a duly completed Compliance Certificate (as defined in the Trinseo Credit Agreement) signed by a Responsible Officer of the Trinseo Lead Borrower;

77

(b)           promptly (and in any event within one (1) Business Day), true, correct and complete copies of all notices, certificates, reports and other information delivered by the Trinseo Lead Borrower or its Subsidiaries to the Lead Borrower pursuant to Section 6.02 of the Trinseo Credit Agreement;

(c)           promptly (and in any event within three (3) Business Days), true, correct and complete copies of all material notices (including, without limitation, notices of redemption and notices of default), certificates, reports and other information delivered by the Trinseo Lead Borrower or the Trinseo Co-Borrower in connection with the 2025 Senior Notes and the 2029 Senior Notes; and

(d)           promptly, such additional information regarding the business, legal, financial or corporate affairs of the Loan Parties, Trinseo Lead Borrower or any of its Subsidiaries, or compliance with the terms of the Loan Documents or the Trinseo Credit Agreement as the Administrative Agent or any Lender may from time to time reasonably request

Section 6.03         Notices. Promptly after a Responsible Officer of any Loan Party has obtained actual knowledge thereof, notify the Administrative Agent:

(a)           of the occurrence of any Default or “Default” (as such term is defined in the Trinseo Credit Agreement) under the Trinseo Credit Agreement;

(b)           of the occurrence of an ERISA Event which could reasonably be expected to result in a Material Adverse Effect or the occurrence of an “ERISA Event” (as such term is defined in the Trinseo Credit Agreement) under the Trinseo Credit Agreement which could reasonably be expected to result in a “Material Adverse Effect” (as such term is defined in the Trinseo Credit Agreement);

(c)           of the filing or commencement of, or any written threat or written notice of intention of any person to file or commence, any action, suit, litigation or proceeding, whether at law or in equity by or before any Governmental Authority, against (i) the Lead Borrower or any other Loan Party that could in each case reasonably be expected to result in a Material Adverse Effect or (ii) Trinseo Lead Borrower or any Trinseo Loan Party that could in each case reasonably be expected to result in a “Material Adverse Effect” (as such term is defined in the Trinseo Credit Agreement).

Each notice pursuant to this Section shall be accompanied by a written statement of a Responsible Officer of the Lead Borrower (x) that such notice is being delivered pursuant to Section 6.03(a), (b) or (c) (as applicable) and (y) setting forth details of the occurrence referred to therein and stating what action the Lead Borrower or the respective Loan Party has taken and proposes to take with respect thereto (or in the case of notices delivered under the Trinseo Credit Agreement, stating what action the Trinseo Lead Borrower or any Trinseo Loan Party has taken or proposes to take with respect thereto).

Section 6.04         Payment of Taxes. Pay, discharge or otherwise satisfy, as the same shall become due and payable in the normal conduct of its business, all its obligations and liabilities in respect of Taxes imposed upon it or upon its income or profits or in respect of its property, except, in each case, to the extent any such Tax is being contested in good faith and by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP or the failure to pay or discharge the same would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

78

Section 6.05         Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization and (b) take all reasonable action to maintain all rights, privileges (including its good standing where applicable in the relevant jurisdiction), permits, licenses and franchises necessary or desirable in the normal conduct of its business.

Section 6.06         Maintenance of Properties. Except (i) if the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) for Dispositions permitted by Section 7.05 (a) maintain, preserve and protect all of its material tangible properties and equipment necessary in the operation of its business in as good a working order, repair and condition, as they were in on the date hereof, ordinary wear and tear excepted and fire, casualty or condemnation excepted, (b) make all necessary renewals, replacements, modifications, improvements, upgrades, extensions and additions thereof or thereto in accordance with prudent industry practice and in the normal conduct of its business, and (c) maintain or renew all of its registered or issued intellectual property.

Section 6.07         Maintenance of Insurance.

(a)           Generally. Maintain, with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as the Loan Parties) as are customarily carried under similar circumstances by such other Persons, including comprehensive “all risk” or special causes of loss form insurance and commercial general liability insurance.

(b)           Requirements of Insurance. All such insurance shall name the Collateral Agent as additional insured on behalf of the Secured Parties (in the case of liability insurance) or loss payee (in the case of property insurance), as applicable.

(c)           Flood Insurance. With respect to each Mortgaged Property, obtain flood insurance in such total amount as the Administrative Agent may from time to time reasonably require, if at any time the area in which any improvements located on any Mortgaged Property is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), and otherwise comply with the Flood Laws.

(d)           If the Borrowers shall fail to maintain insurance in accordance with this Section 6.07, or if the Borrowers shall fail to so endorse and deposit all policies or certificates with respect thereto, the Administrative Agent shall have the right (but shall be under no obligation) to procure such insurance and the Borrowers agree to reimburse the Administrative Agent for all costs and expenses of procuring such insurance. The provisions of this Section 6.07 shall be deemed supplemental to, but not duplicative of, the provisions of any Collateral Documents that require the maintenance of insurance.

79

Section 6.08         Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except, in each case, if the failure to comply therewith could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

Section 6.09         Books and Records. Maintain proper books of record and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied and which reflect all material financial transactions and matters involving the assets and business of the Borrowers, as the case may be (it being understood and agreed that certain Foreign Loan Parties maintain individual books and records in conformity with generally accepted accounting principles in their respective countries of organization and that such maintenance shall not constitute a breach of the representations, warranties or covenants hereunder).

Section 6.10         Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of such Loan Party’s properties, to examine such Person’s corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss such Person’s affairs, finances and accounts with its directors, officers, and independent public accountants (subject to such accountants’ customary policies and procedures), all at the reasonable expense of the Borrowers and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrowers; provided that the Administrative Agent and the Lenders shall not exercise such rights more often than two (2) times in the aggregate during any calendar year and only one (1) such time shall be at the Borrowers’ expense; provided further that when an Event of Default has occurred and is continuing, the Administrative Agent and the Lenders (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrowers at any time during normal business hours and upon reasonable advance notice. The Administrative Agent and the Lenders shall give the Borrowers the opportunity to participate in any discussions with the Borrowers’ independent public accountants. Notwithstanding anything to the contrary in this Section 6.10, none of the Loan Parties shall be required to disclose, or permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or any binding agreement or (iii) is subject to attorney client or similar privilege or constitutes attorney work-product.

Section 6.11         Additional Collateral. At the Borrowers’ expense, subject to the limitations and exceptions of this Agreement, including, without limitation, the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including always ensuring that the Obligations are secured by a first-priority security interest in all Collateral, including the Equity Interests of the Borrowers.

Section 6.12         Reserved.

80

Section 6.13         Reserved.

Section 6.14         Further Assurances. Promptly upon reasonable request by the Administrative Agent (a) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from time to time in order to carry out more effectively the purposes of the Collateral Documents, to the extent required pursuant to the Collateral and Guarantee Requirement.

Section 6.15         Reserved.

Section 6.16         Reserved.

Section 6.17         Use of Proceeds. Use the proceeds of the Term Loans, whether directly or indirectly, on the Closing Date as follows: (i) the proceeds of the Tranche A Term Loans shall be used by the Lead Borrower to make the Intercompany Parent Loan to Parent and (ii) Parent shall use the proceeds of the Intercompany Parent Loan to make the Equity Contribution, which shall be designated as an “Excluded Contribution” (as such term is defined in the 2025 Senior Indenture and the 2029 Senior Indenture) for purposes of the 2025 Senior Indenture and the 2029 Senior Indenture, (iii) the proceeds of the Tranche B Term Loans shall be used by the Lead Borrower to make the 2023 Refinancing Term Loans and the 2023 Incremental Term Loans pursuant to the 2023 Incremental and Refinancing Amendment, (iv) the proceeds of the 2023 Refinancing Term Loans, together with cash on hand, shall be used by Trinseo Lead Borrower to refinance in full the 2018 Refinancing Term Loans (as defined in the Trinseo Credit Agreement) and (v) the proceeds of the 2023 Incremental Term Loans plus cash on hand shall be used by Trinseo Lead Borrower to repurchase, retire and redeem not less than $385,000,000 of the outstanding 2025 Senior Notes.

Section 6.18         Post-Closing Actions. Complete each of the actions described on Schedule 6.18 as soon as commercially reasonable and by no later than the date set forth in Schedule 6.18 with respect to such action or such later date as the Administrative Agent may reasonably agree.

Section 6.19         Compliance with Anti-Corruption Laws. Each Loan Party shall: (a) conduct its business in a manner expected to maintain compliance with Anti-Corruption Laws, and maintain policies and procedures designed to ensure compliance with Anti-Corruption Laws; and (b) not authorize the use of the proceeds of any Borrowing, directly or, to its knowledge, indirectly, in any manner which would violate Anti-Corruption Laws in any material respect.

Section 6.20         Maintenance of Ratings. Use commercially reasonable efforts to obtain a private rating of the Term Loans from Moody’s and S&P within 45 days after the Closing Date and at all times maintain (but not maintain a specific rating) such private rating.

Section 6.21         Certification under Trinseo Credit Agreement. The Lead Borrower may deliver a certification to the Trinseo Administrative Agent and the Trinseo Borrowers within the time period and in accordance with the terms set forth on Schedule 6.21. Delivery of a certification other than as provided on Schedule 6.21 shall constitute an Event of Default under Section 8.01(b) of this Agreement.

81

Article VII

Negative Covenants

So long as any Lender shall have any Commitment hereunder, any Term Loan or other Obligation hereunder (other than contingent indemnification obligations as to which no claim has been asserted) which is accrued and payable shall remain unpaid or unsatisfied, then from and after the Closing Date:

Section 7.01         Liens. No Loan Party shall, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:

(a)           Liens pursuant to any Loan Document;

(b)           Liens for Taxes, assessments or governmental charges that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate actions, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP or equivalent accounting principles in the relevant jurisdiction;

(c)           Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);

(d)           Liens in favor of a banking or other financial institution arising as a matter of Law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution including any netting and the right of setoff, and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions;

(e)           Liens in favor of any Loan Party;

(f)            Liens arising from precautionary Uniform Commercial Code financing statement or similar filings;

(g)           Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

(h)           junior Liens on the Collateral securing obligations in respect of Incremental Equivalent Debt; and

(i)            Liens that are contractual rights of setoff or rights of pledge relating to the establishment of depository relations with banks or other financial institutions not given in connection with the issuance of Indebtedness.

82

The expansion of Liens by virtue of accrual of interest and the payment of interest will not be deemed to be an incurrence of Liens for purposes of this Section 7.01.

Section 7.02         Subsidiaries. No Loan Party shall form or acquire any direct Subsidiary after the Closing Date.

Section 7.03         Indebtedness. No Loan Party shall, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except:

(a)           Indebtedness of any Loan Party under the Loan Documents;

(b)           the Intercompany Parent Loan; provided that such Intercompany Parent Loan shall be unsecured and subordinated to the Obligations in a manner reasonably acceptable to the Required Lenders and be pledged to the Collateral Agent;

(c)           intercompany Indebtedness owing by the Lead Borrower to the Co-Borrower in an aggregate amount not to exceed the amount of Net Proceeds received by Co-Borrower from or in connection with any JV Sale; provided that any such intercompany Indebtedness shall be unsecured and subordinated to the Obligations in a manner reasonably acceptable to the Required Lenders and be evidenced by an Intercompany Note which shall be pledged to the Collateral Agent;

(d)           intercompany indebtedness owing by the Lead Borrower to any Limited Guarantor in an aggregate amount not to exceed the amount of Net Proceeds received by such Limited Guarantor from a Disposition of its assets; provided that any such intercompany Indebtedness shall be unsecured and subordinated to the Obligations in a manner reasonably acceptable to the Required Lenders and be evidenced by an Intercompany Note which shall be pledged to the Collateral Agent;

(e)           obligations owed by the Lead Borrower or the Co-Borrower to any financial institution in respect of any overdraft and related liabilities arising from treasury, depository and cash management services or any automated clearing house transfers of funds and other Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with deposit accounts;

(f)            Indebtedness consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business; and

(g)           all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (f) above.

For purposes of determining compliance with Section 7.03, Indebtedness incurred under the Loan Documents, any Incremental Term Commitments and any Incremental Term Loans shall only be classified as incurred under Section 7.03(a).

83

The accrual of interest and the payment of interest in the form of additional Indebtedness shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 7.03. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the applicable Loan Party dated such date prepared in accordance with GAAP.

Section 7.04         Fundamental Changes. No Loan Party shall merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that the Co-Borrower may effect a Disposition permitted pursuant to Section 7.05.

Section 7.05         Dispositions. No Loan Party shall, directly or indirectly, make any Disposition or enter into any agreement to make any Disposition, except:

(a)           the JV Sale so long as (i) the Co-Borrower receives at least Fair Market Value therefor, (ii) 75% of the consideration is paid in cash or Cash Equivalents (in each case free and clear of all Liens at the time received), (iii) at the date of entry into a definitive document for the JV Sale, no Default or Event of Default exists or will result therefrom, and on the closing date of the JV Sale, no Event of Default pursuant to Section 8.01(a), (f) or (g) exists or will result therefrom; and (iv) proceeds of such Disposition are applied to prepay the Term Loans in accordance with Section 2.05(b)(ii) of this Agreement;

(b)           Dispositions that constitute a Restricted Payment permitted by Section 7.06, a Permitted Investment or Liens permitted by Section 7.01; and

(c)           Dispositions of cash and Cash Equivalents.

To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take any actions deemed appropriate in order to effect the foregoing.

Section 7.06         Restricted Payments. No Loan Party (other than Parent) shall declare or make, directly or indirectly, any Restricted Payment, except:

(a)           so long as no Event of Default exists or shall result therefrom (whether or not waived), the Co-Borrower and Holdings may make Restricted Payments, in each case, in an amount not to exceed the amount of “Excess Cash Distributions” (as such term is defined in the JV Agreement) received on account of the JV Interests but not any special or liquidating dividend or distribution;

(b)           solely to the extent that no mandatory prepayment is required to be made pursuant to Section 2.05(b)(v) at such time and in each case so long as no Event of Default exists or shall result therefrom (whether or not waived), the Lead Borrower may make Restricted Payments to Parent in an amount not to exceed the Excess Interest and Excess Amortization; provided that Parent shall concurrently contribute 100% of the proceeds of any such Restricted Payment as an equity contribution to Trinseo Holdings, and Trinseo Holdings shall contribute the same to Trinseo Lead Borrower;

84

(c)            Restricted Payments in an amount not to exceed the Borrower Retained Prepayment Amounts, provided that Parent shall concurrently contribute 100% of the proceeds of any such Restricted Payment as an equity contribution to Trinseo Holdings, and Trinseo Holdings shall contribute the same to Trinseo Lead Borrower; and

(d)            Restricted Payments by the Co-Borrower and Holdings with the proceeds from any prepayment of Indebtedness incurred by the Lead Borrower under Section 7.03(c) to the extent such prepayment was permitted by Section 7.13.

Section 7.07          Certain Undertakings Relating to Separateness. Each of the Loan Parties (other than Parent) shall conduct its business and operations separate and apart from that of any other Person (including the holders of its Equity Interests and their respective Affiliates) and in furtherance of the foregoing, each Loan Party (other than Parent) shall:

(a)            not become involved in the day to day management of any other Person, other than in the case of the Co-Borrower, its role as a member of Americas Styrenics;

(b)            not engage in transactions with any other Person other than (i) entering into the Loan Documents, (ii) in the case of the Lead Borrower, the making of the 2023 Incremental Term Loans and the 2023 Refinancing Term Loans, (iii) activities permitted by its Organization Documents, (iv) in the case of the Co-Borrower, the JV Agreement and activities permitted thereunder and (v) matters incident or ancillary to the foregoing;

(c)            observe all formalities required of a limited liability company under the laws of the State of Delaware and of a private limited liability company (société à responsabilité limitée), organized and established under the laws of Luxembourg, as applicable;

(d)            (i) maintain separate company records and books of account from any other Person and (ii) to the extent applicable, clearly identify its offices, if any, as its offices and, to the extent that such Loan Party and its Affiliates have offices in the same location, allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for services performed by an employee of an Affiliate;

(e)            except to the extent otherwise permitted by the Loan Documents, maintain its assets separately from the assets of any other Person (including through the maintenance of a separate bank account) in a manner that is not costly or difficult to segregate, identify or ascertain such assets;

(f)            maintain separate financial statements (or if part of a consolidated group, then it will show as a separate member of such group), books and records from any other Person;

(g)            allocate and charge fairly and reasonably any overhead shared with Affiliates;

85 

 

(h)           transact all business with Affiliates on an arm’s length basis and pursuant to written, enforceable agreements, except to the extent otherwise provided in the Loan Documents;

(i)            not assume, pay or Guarantee any other Person’s obligations or advance funds to any other Person for the payment of expenses or otherwise, except pursuant to the Loan Documents;

(j)            conduct all business correspondence and other communications in its own name, and use separate stationery, invoices, and checks;

(k)            not act as an agent of any other Person in any capacity except pursuant to contractual documents indicating such capacity and only in respect of transactions permitted by its Organization Documents, the Loan Documents and matters necessarily incident thereto;

(l)            not permit any Affiliate to guarantee, provide indemnification for, or pay its obligations, except for any indemnities and guarantees in connection with the Loan Documents or any consolidated tax liabilities, or except as permitted by its Organization Documents;

(m)           compensate its consultants or agents, if any, from its own funds;

(n)            maintain adequate capital in light of its contemplated business purpose, transactions and liabilities;

(o)            fail at any time to have at least one (1) Independent Manager on its board of managers; provided, however, if such Independent Manager is deceased, withdraws, resigns or is removed for cause, such Loan Party shall not breach or violate this Section 7.07(o) if such Loan Party uses commercially reasonable efforts to replace such Independent Manager with another Independent Manager acceptable to the Required Lenders, it being understood that the Persons on Schedule 7.07(o) are acceptable to the Required Lenders; provided, further, however, that during such period, no matter that requires the vote of the Independent Manager under such Loan Party’s Organization Documents shall be considered, approved of, or otherwise voted on by the board of managers of any Loan Party or any committee or sub-committee thereof;

(p)            appoint any Person as an Independent Manager who does not satisfy the definition of an Independent Manager; and

(q)            not amend, restate, supplement or otherwise modify its Organization Documents in violation of this Agreement or in any respect that would impair its ability to comply with the Loan Documents.

Each Loan Party hereby acknowledges that the Administrative Agent and each Lender is entering into the transactions contemplated by this Agreement in reliance upon each Loan Party’s (other than the Parent’s) identity as a legal entity that is separate from its Affiliates.

86 

 

Section 7.08         Transactions with Affiliates. No Loan Party (other than Parent) shall, directly or indirectly, enter into any transaction of any kind with any Affiliate involving aggregate payments or consideration in excess of $1,000,000 for any individual transaction or series of related transactions, whether or not in the ordinary course of business, other than (i) transactions among Loan Parties, (ii) the 2023 Incremental Term Loans and 2023 Refinancing Term Loans, and all transactions related thereto, (iii) transactions permitted under Section 7.03, Section 7.04, Section 7.05 and Section 7.06, and (iv) transactions on terms substantially as favorable to the Loan Parties as would be obtainable by such Loan Party at the time in a comparable arm’s-length transaction with a Person other than an Affiliate.

Section 7.09          Burdensome Agreements. No Loan Party shall enter into or permit to exist any Contractual Obligation (other than this Agreement or any other Loan Document) that limits the ability of any Loan Party to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Lenders with respect to the Obligations or under the Loan Documents; provided that the foregoing shall not apply to Contractual Obligations which:

(a)            exist in the JV Agreement as of the Closing Date;

(b)            arise in connection with any Disposition permitted by Section 7.04 or 7.05 and relate solely to the assets or Person subject to such Disposition;

(c)            arise in connection with Indebtedness permitted by Section 7.03; and

(d)            arise in connection with cash or other deposits permitted under Sections 7.01 and the definition of Permitted Investments and limited to such cash or deposit.

Section 7.10         Americas Styrenics.

(a)            Co-Borrower shall not consent to any amendment to the JV Agreement that would materially and adversely affect the interests of the Loan Parties (taken as a whole) or the Secured Parties.

(b)            Co-Borrower shall not consent, and shall cause its Class D Directors (as defined in the JV Agreement) not to consent, to Americas Styrenics incurring any Indebtedness except (i) Indebtedness in respect of Capitalized Leases and equipment financing incurred in the ordinary course of business, (ii) Indebtedness not to exceed $25,000,000 in the aggregate outstanding at any time and (iii) that certain revolving facility in existence on the date hereof not to exceed $60,000,000 in the aggregate outstanding at any time; provided that the proceeds of any Indebtedness incurred pursuant to clauses (i), (ii) and (iii) shall only be used for working capital and general corporate purposes but not to make distributions or dividends.

Section 7.11         Trinseo Credit Agreement. The Lead Borrower shall not consent to any amendment to the Trinseo Credit Agreement that would adversely affect the interests of the Secured Parties.

Section 7.12         Accounting Changes. No Loan Party make any change in its fiscal year.

87 

 

Section 7.13         Prepayments, Etc. of Indebtedness. (a)  No Loan Party shall prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (it being understood that payments of regularly scheduled principal and interest shall be permitted) any Indebtedness that is required to be expressly subordinated to the Obligations in right of payment or security pursuant to the terms of the Loan Documents (collectively, “Junior Financing”) or make any payment in violation of any subordination terms of any Junior Financing Documentation, except (i) [reserved], (ii) the conversion of any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of Parent, (iii) the prepayment of Indebtedness of the Lead Borrower owing to the Co-Borrower, a Limited Guarantor or the prepayment of Indebtedness of the Parent owing to the Lead Borrower, in each case to the extent not prohibited by the subordination provisions contained in the Intercompany Note, the Intercompany Parent Note, or such other intercompany note, as applicable, and (iv) prepayments or purchases of Junior Financings with Borrower Retained Prepayment Amounts to the extent such prepayments or purchases are not prohibited by the Junior Financing Documentation evidencing such Junior Financing.

(b)            No Loan Party shall amend, modify or change in any manner materially adverse to the interests of the Lenders any term or condition of any Junior Financing Documentation without the consent of the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed).

Article VIII

Events of Default and Remedies

Section 8.01         Events of Default. Any of the following from and after the Closing Date shall constitute an event of default (an “Event of Default”):

(a)            Non-Payment. Any Loan Party fails to pay (i) other than as specified in clause (ii) hereof, any amount of principal of any Term Loan, (ii) within one (1) Business Days after the same becomes due, any amount of principal of any Term Loan pursuant to Section 2.05(b)(iv), Section 2.05(b)(v) or Section 2.07(a), or (iii) within five (5) Business Days after the same becomes due, any interest on any Term Loan or any other amount payable hereunder or with respect to any other Loan Document; or

(b)            Specific Covenants. (i) Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Sections 6.03(a), 6.05(a) (solely with respect to a Borrower), 6.17, 6.18, 6.21 or Article VII or (ii) the Lead Borrower fails to perform or observe its obligations contained in Section 5.2 of the Luxembourg Receivables Pledge Agreement; or

(c)            Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days after the earlier of (i) receipt of written notice thereof by the Lead Borrower from the Administrative Agent and (ii) actual knowledge thereof by any Loan Party; or

(d)            Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party herein, in any other Loan Document, or in any document required to be delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or

88 

 

(e)            Cross-Default. Any Loan Party or any Trinseo Loan Party (A) fails to make any payment beyond the applicable grace period with respect thereto, if any, (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of the obligations outstanding under the Trinseo Credit Agreement, the 2025 Secured Notes, the 2029 Secured Notes, the Limited Guaranty or any Indebtedness having an outstanding aggregate principal amount of not less than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to the Trinseo Credit Agreement, the 2025 Secured Notes, the 2029 Secured Notes or any such Indebtedness, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity; provided, further, that failure by the Trinseo Lead Borrower to be in compliance with the Financial Covenant (as defined in the Trinseo Credit Agreement) under the Trinseo Credit Agreement shall not constitute an “Event of Default” hereunder unless and until the Required Revolving Credit Lenders (as defined in the Trinseo Credit Agreement) have actually declared all such obligations to be immediately due and payable in accordance with the Trinseo Credit Agreement and such declaration has not been rescinded on or before such date; provided, further, that this clause (e)(B) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted under the terms of the documents providing for such Indebtedness; provided further that such failure is unremedied and is not waived by the holders of such Indebtedness prior to any termination of commitments or acceleration of the obligations under such Indebtedness;

(f)            Insolvency Proceedings, Etc. Any Loan Party institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, receiver-manager, trustee, statutory manager, custodian, monitor, conservator, liquidator, rehabilitator, controller, administrator, judicial manager, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, receiver-manager, trustee, statutory manager, custodian, monitor, conservator, liquidator, rehabilitator, administrator, judicial manager, administrative receiver or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or, in relation to any Luxembourg Loan Party, a Luxembourg Insolvency Event has occurred; or

(g)            Inability to Pay Debts; Attachment. (i) Any Loan Party becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of the Loan Parties and is not released, vacated or fully bonded within sixty (60) days after its issue or levy; or

89 

 

(h)            Judgments. There is entered against any Loan Party a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by (i) independent third-party insurance as to which the insurer has been notified of such judgment or order and has not denied coverage or (ii) other third party indemnities from financially sound investment grade indemnifying parties (or other parties reasonably acceptable to the Administrative Agent)) and such judgment or order shall not have been satisfied, vacated, discharged or stayed or bonded pending an appeal for a period of sixty (60) consecutive days; or

(i)            Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as a result of acts or omissions by the Administrative Agent or Collateral Agent or any Lender or the satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in writing the validity or enforceability of any provision of any Loan Document or the validity or priority of a Lien as required by the Collateral Documents on a material portion of the Collateral; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document (other than as a result of repayment in full of the Obligations and termination of the Aggregate Commitments), or purports in writing to revoke or rescind any Loan Document; or

(j)            Change of Control. There occurs any Change of Control; or

(k)            Collateral Documents. Any Collateral Document after delivery thereof pursuant to Section 6.11, 6.14 or 6.18 shall for any reason (other than pursuant to the terms thereof including as a result of a transaction not prohibited under this Agreement) cease to create a valid and perfected Lien, with the priority required by the Collateral Documents on and security interest in any material portion of the Collateral purported to be covered thereby, subject to Liens permitted under Section 7.01, (i) except to the extent that any such perfection or priority is not required pursuant to the Collateral and Guarantee Requirement or results from the failure of the Administrative Agent or the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Documents or to file Uniform Commercial Code continuation statements or other equivalent filings and (ii) except as to Collateral consisting of Real Property to the extent that such losses are covered by a lender’s title insurance policy and such insurer has not denied coverage; or

(l)            ERISA. (i) An ERISA Event occurs which, individually or together with all other ERISA Events, has resulted or could reasonably be expected to result in a Material Adverse Effect, (ii) a Loan Party or ERISA Affiliate fails to make when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan, in an amount which could reasonably be expected to result in, a Material Adverse Effect or (iii) any Loan Party has incurred or is likely to incur liabilities pursuant to one or more Foreign Pension Plans which, individually or in the aggregate, has resulted in or could reasonably be expected to result in a Material Adverse Effect; or

(m)          Triggering Event. There occurs a Triggering Event.

90 

 

Section 8.02         Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent may and, at the request of the Required Lenders, shall take any or all of the following actions:

(a)            declare the commitment of each Lender to make Term Loans to be terminated, whereupon such commitments and obligation shall be terminated;

(b)            declare the unpaid principal amount of all outstanding Term Loans, all interest accrued and unpaid thereon, and all other Obligations owing or payable hereunder or under any other Loan Document (including, without limitation, the Redemption Premium) to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers;

(c)            [reserved]; and

(d)            exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law;

provided that upon the occurrence of an actual or deemed entry of an order for relief with respect to either Borrower under the Bankruptcy Code or any Debtor Relief Laws, the obligation of each Lender to make Term Loans shall automatically terminate, the unpaid principal amount of all outstanding Term Loans and all interest and other amounts as aforesaid shall automatically become due and payable without further act of the Administrative Agent or any Lender.

Section 8.03         Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Term Loans have automatically become immediately due and payable as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations (whether received as a consequence of the exercise of such remedies or a distribution out of any proceeding in respect of or commenced under any proceeding under any Debtor Relief Law including payments in respect of “adequate protection” for the use of Collateral during such proceeding or under any plan of reorganization or on account of any liquidation of any Loan Party) shall be applied by the Administrative Agent in the following order (to the fullest extent permitted by mandatory provisions of applicable Law):

First, to payment of that portion of the Obligations constituting (a) fees, indemnities, expenses and other amounts (other than principal and interest, but including Attorney Costs payable under Section 10.04 and amounts payable under Article III) payable to the Administrative Agent or the Collateral Agent in its capacity as such and (b) indemnitees payable to the Trinseo Administrative Agent under Section 9.17 in its capacity as such;

Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs payable under Section 10.04 and amounts payable under Article III), ratably among them in proportion to the amounts described in this clause Second payable to them (irrespective of when such amounts were incurred or accrued or whether any such amounts are allowed in any proceeding under any Debtor Relief Law);

Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Term Loans, and any fees and premiums (including the Make-Whole Amount, the Applicable Sale Premium, the Applicable Prepayment Premium, if any), ratably among the applicable Secured Parties in proportion to the respective amounts described in this clause Third payable to them (irrespective of when such amounts were incurred or accrued or whether any such amounts are allowed in any proceeding under any Debtor Relief Law);

91 

 

Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Term Loans, and any breakage, termination or other payments, ratably among the applicable Secured Parties in proportion to the respective amounts described in this clause Fourth held by them (irrespective of when such amounts were incurred or accrued or whether any such amounts are allowed in any proceeding under any Debtor Relief Law);

Fifth, to the payment of all other Obligations that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and

Last, the balance, if any, after all of the Obligations have been paid in full, to the Lead Borrower or as otherwise required by Law.

Section 8.04         Administrative Delay. The Administrative Agent and Lenders acknowledge that the payments of principal and interest hereunder will primarily be financed with the proceeds that the Lead Borrower receives on account of the 2023 Incremental Term Loans and 2023 Refinancing Term Loans. In the event that the Lead Borrower is unable to satisfy its obligations to make any payment hereunder solely as a result of an administrative delay on the account of the Trinseo Administrative Agent to process a timely payment that was made by the Trinseo Lead Borrower to the Trinseo Administrative Agent on account of the 2023 Incremental Term Loans and 2023 Refinancing Loans, no Default or Event of Default shall exist hereunder if such payment is made to the Administrative Agent hereunder within two (2) Business Days of when such payment was otherwise due and payable hereunder.

Article IX

Administrative Agent and Other Agents

Section 9.01         Appointment and Authorization of Agents. (a) Each Lender hereby irrevocably appoints, designates and authorizes each of the Administrative Agent and the Collateral Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, neither the Administrative Agent nor the Collateral Agent shall have any duties or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent or the Collateral Agent have or be deemed to have any fiduciary relationship with any Lender or Participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent or the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

92 

 

(b)            [Reserved].

(c)            Notwithstanding the provisions of Section 9.15, each of the Secured Parties hereby irrevocably appoints and authorizes the Collateral Agent to act as the agent of (and to hold any security interest created by the Collateral Documents for and on behalf of or in trust or as agent for) such Secured Party for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent (and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Collateral Agent), shall be entitled to the benefits of all provisions of this Article IX (including, Section 9.07, as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents) as if set forth in full herein with respect thereto.

Section 9.02         Delegation of Duties. Each of the Administrative Agent and the Collateral Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder) by or through agents, sub-agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or sub-agent or attorney-in-fact or employee that it selects in the absence of gross negligence or willful misconduct (as determined in the final non-appealable judgment of a court of competent jurisdiction).

Section 9.03         Liability of Agents. No Agent-Related Person shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as determined by the final non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), or (b) be responsible in any manner to any Lender or Participant for any recital, statement, representation or warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent or the Collateral Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or the perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender or participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof.

93 

 

Section 9.04         Reliance by Agents. (a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to any Loan Party), independent accountants and other experts selected by such Agent. Each Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders. If a payment is made by the Agent (or any of its Affiliates) in error (whether known to the recipient or not) or if a Lender or another recipient of funds is not otherwise entitled to receive such funds at such time of such payment or from such Person in accordance with the Loan Documents, then such Lender or recipient shall forthwith on written demand repay to the Agent the portion of such payment that was made in error (or otherwise not intended (as determined in good faith by the Agent) to be received) in the amount made available by the Agent (or its Affiliate) to such Lender or recipient. Each Lender and other party hereto waives the discharge for value defense in respect of any such payment. The parties hereto agree that an erroneous payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such erroneous payment is, and solely with respect to the amount of such erroneous payment that is, comprised of funds received by the Agent from the Borrower or any other Loan Party for the purpose of making such erroneous payment. Nothing in this Section 9.04 shall be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such erroneous payment not been made by the Agent.

(b)            For purposes of determining compliance with the conditions specified in Section 4.01 or 4.02 with respect to Credit Extensions on the Closing Date, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

Section 9.05         Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, unless the Administrative Agent shall have received written notice from a Lender or a Loan Party referring to this Agreement, describing such Default and stating that such notice is a “notice of default.” The Administrative Agent will notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders in accordance with Article VIII; provided that unless and until the Administrative Agent has received any such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders.

94 

 

Section 9.06         Credit Decision; Disclosure of Information by Agents. Each Lender acknowledges that no Agent-Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Lender represents to each Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrowers hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Agent herein, such Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their Affiliates which may come into the possession of any Agent-Related Person.

Section 9.07         Indemnification of Agents. Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), pro rata (determined as if there were no Defaulting Lenders), and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it; provided that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting from such Agent-Related Person’s own gross negligence or willful misconduct, as determined by the final non-appealable judgment of a court of competent jurisdiction; provided that no action taken in accordance with the directions of the Required Lenders (or such other number or percentage of the Lenders as shall be required by the Loan Documents) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.07. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.07 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse each of the Administrative Agent and the Collateral Agent upon demand for its ratable share (determined as if there were no Defaulting Lenders) of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the Administrative Agent or the Collateral Agent, as the case may be, in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent or the Collateral Agent, as the case may be, is not reimbursed for such expenses by or on behalf of the Loan Parties. The undertaking in this Section 9.07 shall survive termination of the Aggregate Commitments, the payment of all other Obligations and the resignation of the Administrative Agent or the Collateral Agent, as the case may be.

95 

 

Section 9.08         Merger or Consolidation. Any corporation or association into which either Agent may be converted or merged, or with which either may be consolidated, or to which either may sell or transfer all or substantially all of its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which either Agent is a party, will be and become the successor Agent under this Agreement and will have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, without the execution or filing of any instrument or paper or the performance of any further act.

Section 9.09         Successor Agents. (a) Each of the Administrative Agent and the Collateral Agent may resign as the Administrative Agent or the Collateral Agent, as applicable, upon thirty (30) days’ notice to Lenders and the Lead Borrower. Such resignation shall take effect upon the appointment of a successor Administrative Agent pursuant to this Section 9.09.

(b)            If the Administrative Agent or the Collateral Agent resigns under this Agreement, the Required Lenders shall appoint a successor agent for the Lenders hereunder and under the other Loan Documents, which shall be reasonably acceptable to the Lead Borrower at all times other than during the existence of an Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) (which consent of the Lead Borrower shall not be unreasonably withheld or delayed).

(c)            If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent or the Collateral Agent, as applicable, the Administrative Agent or the Collateral Agent, as applicable, may appoint, after consulting with the Lenders and the Lead Borrower, a successor agent to the extent the Required Lenders have failed to do the same pursuant to Section 9.09(b).

(d)            Upon the acceptance of its appointment as successor agent hereunder, the Person acting as such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent or retiring Collateral Agent, as applicable, and the term “Administrative Agent” or “Collateral Agent,” as applicable, shall mean such successor administrative agent or collateral agent and/or Supplemental Agent, as the case may be, and the retiring Administrative Agent’s or Collateral Agent’s, as applicable, appointment, powers and duties as the Administrative Agent or Collateral Agent shall be terminated. After the retiring Administrative Agent’s or the Collateral Agent’s resignation hereunder as the Administrative Agent or Collateral Agent, as applicable, the provisions of this Article IX and Sections 10.04 and 10.05 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent or Collateral Agent, as applicable, under this Agreement.

96 

 

(e)            If no successor agent has accepted appointment as the Administrative Agent or the Collateral Agent, as applicable, by the date which is thirty (30) days following the retiring Administrative Agent’s or Collateral Agent’s, as applicable, notice of resignation, the retiring Administrative Agent’s or the retiring Collateral Agent’s, as applicable, resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent or Collateral Agent, as applicable, hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above.

(f)            Upon the acceptance of any appointment as the Administrative Agent or Collateral Agent hereunder by a successor and upon the execution and filing or recording of such financing statements, or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to (i) continue the perfection of the Liens granted or purported to be granted by the Collateral Documents or (ii) otherwise ensure that Section 6.11 is satisfied, the Administrative Agent or Collateral Agent, as applicable, shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges, and duties of the retiring Administrative Agent or Collateral Agent, as applicable, and the retiring Administrative Agent or Collateral Agent, as applicable, shall be discharged from its duties and obligations under the Loan Documents.

(g)            After the retiring Administrative Agent’s or Collateral Agent’s resignation hereunder as the Administrative Agent or the Collateral Agent, the provisions of this Article IX shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent or the Collateral Agent, as applicable and the retiring Administrative Agent and the Collateral Agent, as the case may be, shall remain indemnified to the extent provided in this Agreement and the other Loan Documents.

Section 9.10          Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, judicial management, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Term Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on either Borrower or the Collateral Agent) shall be (to the fullest extent permitted by mandatory provisions of applicable Law) entitled and empowered, by intervention in such proceeding or otherwise:

(a)            to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Term Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Collateral Agent and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Collateral Agent and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Collateral Agent and the Administrative Agent under 2.09 and 10.04) allowed in such judicial proceeding; and

(b)            to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, monitor, curator, receiver, receiver-manager, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent or the Collateral Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent or the Collateral Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Administrative Agent or the Collateral Agent under Sections 2.09 and 10.04.

97 

 

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

Section 9.11         Collateral and Guaranty Matters. Each of the Lenders irrevocably authorizes the Administrative Agent and the Collateral Agent:

(a)            to enter into and sign for and on behalf of the Lenders as Secured Parties the Collateral Documents for the benefit of the Lenders and the other Secured Parties;

(b)            to automatically release any Lien on any property granted to or held by the Administrative Agent or Collateral Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than contingent indemnification obligations as to which no claim has been asserted), (ii) at the time the property subject to such Lien is Disposed or to be Disposed as part of or in connection with any Disposition permitted hereunder or under any other Loan Document to any Person other than a Loan Party and (iii) subject to Section 10.01, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders.

Upon request by the Administrative Agent or the Collateral Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s or the Collateral Agent’s authority to release its interest in particular types or items of property. In each case as specified in this Section 9.11, the Administrative Agent or the Collateral Agent will (and each Lender irrevocably authorizes the Administrative Agent and the Collateral Agent to), at the Borrowers’ expense, execute and deliver to the applicable Loan Party such documents as the Lead Borrower may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to evidence the release of such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.11.

Section 9.12         Certain Rights of Agent. If the Agent shall request instructions from the Required Lenders with respect to any action or actions (including the failure to act) in connection with this Agreement or the other Loan Documents, such Agent shall be entitled to refrain from such act or taking such act unless and until it shall have received instructions from such Lenders (which instruction may be provided in the form of email and may be provided by legal counsel or any other advisor to the Required Lenders), and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the instructions of the Required Lenders where required by the terms of this Agreement or the other Loan Documents. With respect to any term or provision of this Agreement or any other Loan Document that requires the consent, approval, satisfaction, discretion, determination, decision, action or inaction or any similar concept of or by the Agent, or that allows, permits, requires, empowers or otherwise provides that any matter, action, decision or similar concept may be taken, made or determined by the Agent (including any provision that refers to any document or other matter being satisfactory or acceptable to the Agent) without expressly referring to the requirement to obtain consent or input from any Lenders, or to otherwise notify any Lender, or without providing that such matter is required to be satisfactory or acceptable to the Required Lenders, such term or provision shall be interpreted to refer to the Agent exercising its discretion, it being understood and agreed that the Agent shall be entitled to confirm that any matter is satisfactory or acceptable to the Required Lenders to the extent that it deems such confirmation necessary or desirable.

98 

 

Section 9.13          Appointment of Supplemental Agents. (a)  It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent or the Collateral Agent deems that by reason of any present or future Law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, the Administrative Agent and the Collateral Agent are hereby authorized to appoint an additional individual or institution selected by the Administrative Agent or the Collateral Agent in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral agent, administrative sub-agent or administrative co-agent (any such additional individual or institution being referred to herein individually as a “Supplemental Agent” and collectively as “Supplemental Agents”).

(b)            In the event that the Collateral Agent appoints a Supplemental Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Collateral Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Agent to the extent, and only to the extent, necessary to enable such Supplemental Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Agent shall run to and be enforceable by either the Collateral Agent or such Supplemental Agent, and (ii) the provisions of this Article IX and of Sections 10.04 and 10.05 that refer to the Administrative Agent shall inure to the benefit of such Supplemental Agent and all references therein to the Collateral Agent shall be deemed to be references to the Collateral Agent and/or such Supplemental Agent, as the context may require.

(c)            Should any instrument in writing from any Loan Party be required by any Supplemental Agent so appointed by the Administrative Agent or the Collateral Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, such Loan Party shall execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent or the Collateral Agent. In case any Supplemental Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Agent.

99 

 

Section 9.14         Force Majeure. In no event shall the Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder or under the other Loan Documents arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, and interruptions, loss of malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Agent shall use reasonable efforts which are consistent with accepted practices in the financial services or trust administration industry to resume performance as soon as practicable under the circumstances.

Section 9.15         Parallel Debt owed to Collateral Agent. (a)  Each Loan Party hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent as creditor in its own right and not as a representative of the other Secured Parties amounts equal to any amounts owing from time to time by that Loan Party to any Secured Party under any Loan Document as and when those amounts are due for payment under the relevant Loan Document.

(b)            Each Loan Party and the Collateral Agent acknowledge that the obligations of each Loan Party under Section 9.15(a) are several and are separate and independent from, and shall not in any way limit or affect, the corresponding obligations of that Loan Party to any Secured Party under any Loan Document (its “Corresponding Debt”) nor shall the amounts for which each Loan Party is liable under Section 9.15(a) (its “Parallel Debt”) be limited or affected in any way by its Corresponding Debt; provided that:

(i)            the Collateral Agent shall not demand payment with regard to the Parallel Debt of each Loan Party to the extent that such Loan Party’s Corresponding Debt has been irrevocably paid or (in the case of guarantee obligations) discharged; and

(ii)            a Secured Party shall not demand payment with regard to the Corresponding Debt of each Loan Party to the extent that such Loan Party’s Parallel Debt has been irrevocably paid or (in the case of guarantee obligations) discharged.

(c)            The Collateral Agent acts in its own name and not as a trustee, and its claims in respect of the Parallel Debt shall not be held on trust. The Collateral granted under the Loan Documents to the Collateral Agent to secure the Parallel Debt is granted to the Collateral Agent in its capacity as creditor of the Parallel Debt and shall not be held on trust.

(d)            All monies received or recovered by the Collateral Agent pursuant to this Section 9.15, and all amounts received or recovered by the Collateral Agent from or by the enforcement of any Collateral granted to secure the Parallel Debt, shall be applied in accordance with this Agreement.

100 

 

Section 9.16         No Discretion. Notwithstanding anything else to the contrary herein or in any other Loan Document, whenever reference is made to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered to omitted by the Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Agent, it is understood that in all cases the Agent shall be fully justified in failing or refusing to take any such action if it shall not have received such written instruction, advice or direction of the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents) as the Agent deems appropriate. Upon receipt of such written instruction, advice or direction, the Agent shall take such discretionary action in accordance with such instruction, advice or direction subject to the terms set forth in this Article IX.

Section 9.17         Lead Borrower Indemnity Claims. The Lenders shall indemnify upon demand the Lead Borrower solely in its capacity as the lender of the 2023 Incremental Term Loans and the 2023 Refinancing Term Loans (the “2023 Term Loan Lender”) and solely to the extent the 2023 Term Loan Lender is not reimbursed by or on behalf of any Trinseo Loan Party and without limiting the obligation of any Trinseo Loan Party to do so, on a pro rata basis (determined as if there were no Defaulting Lenders), for the 2023 Term Loan Lender’s indemnification obligations to the Trinseo Administrative Agent under and pursuant to Section 9.07 of the Trinseo Credit Agreement (as in effect on the Closing Date) and, in all cases, subject to the terms, conditions and limitations of Section 9.07 of the Trinseo Credit Agreement (as in effect on the Closing Date). The Trinseo Administrative Agent shall be entitled to rely upon, shall be an express third party beneficiary of, and shall be entitled to enforce, the provisions of this Section 9.17. In the event the Trinseo Administrative Agent wishes to make a demand for indemnification under this Section 9.17, Trinseo Administrative Agent shall deliver to the Administrative Agent for prompt further distribution to the Lenders (i) a copy of the written demand for indemnification made by the Trinseo Administrative Agent under Section 9.07 of the Trinseo Credit Agreement to all lenders thereunder and (ii) written demand for indemnification against the Lenders for the pro rata portion of the indemnification obligations due, owing and unpaid by the 2023 Term Loan Lender under Section 9.07 of the Trinseo Credit Agreement, including reasonably detailed calculation thereof. Upon receipt of such demand, each Lender shall pay such its pro rata share (determined as if there were no Defaulting Lenders) of the indemnification obligations that are due, owing and unpaid of the 2023 Term Loan Lender to the Trinseo Administrative Agent as directed in writing subject to the provisions of Section 10.02(a)(ii) by the 2023 Term Loan Lender (it being agreed that the 2023 Term Loan Lender may establish an account for the benefit of the Trinseo Administrative Agent for purposes of facilitating payments to the Trinseo Administrative Agent under this Section 9.17). Notwithstanding anything to the contrary in this Agreement, neither this Section 9.17 nor the definition of “Trinseo Administrative Agent” (as defined as of the Closing Date) shall be terminated, amended, modified, supplemented or changed in any manner without the prior written consent of the Trinseo Administrative Agent. The Lenders’ undertaking in this Section 9.17 shall survive termination of the Aggregate Commitments and the payment of all other Obligations.

101 

 

Article X

Miscellaneous

Section 10.01       Amendments, Etc. Except as otherwise set forth in this Agreement, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (other than with respect to any amendment or waiver contemplated in Sections 10.01(a) through (j) below, which shall only require the consent of the Lenders expressly set forth therein and not the Required Lenders) (or by the Administrative Agent with the written consent of the Required Lenders) and such Loan Party and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that, no such amendment, waiver or consent shall directly or indirectly:

(a)            extend or increase the Commitment of any Lender without the written consent of each Lender holding such Commitment (it being understood that a waiver of any condition precedent or of any Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender);

(b)            postpone any date scheduled for, or reduce or forgive the amount of, any payment of principal or interest under Section 2.07 or 2.08 (other than pursuant to Section 2.08(b)) without the written consent of each Lender holding the applicable Obligation (it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest);

(c)            reduce or forgive the principal of, or the rate of interest specified herein on, any Term Loan, or (subject to clause (i) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document (or extend the timing of payments of such fees or other amounts) without the written consent of each Lender holding such Term Loan or to whom such fee or other amount is owed; provided that, only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrowers to pay interest at the Default Rate;

(d)            change any provision of this Section 10.01, the definition of “Required Lenders,” or “Pro Rata Share,” Section 2.06, 2.12(a), 2.12(g), 2.13 or 8.03 without the written consent of each Lender directly affected thereby;

(e)            other than in connection with a transaction permitted under Section 7.04 or 7.05 (as in effect on the Closing Date), release all or substantially all of the Collateral (or have the effect of releasing all or substantially all of the Collateral) in any transaction or series of related transactions, without the written consent of each Lender;

(f)            other than in connection with a transaction permitted under Section 7.04 or 7.05 (as in effect on the Closing Date), release all or substantially all of the aggregate value of the Guarantees (or have the effect of releasing all or substantially all of the aggregate value of the Guarantees) in any transaction or series of related transactions, without the written consent of each Lender;

(g)            change the currency in which any Term Loan is denominated without the written consent of each Lender holding such Term Loans;

102 

 

(h)           subordinate the Obligations in right of payment to any other Indebtedness or subordinate the Lien securing the Obligations in right of security to any other Lien, in each case, without the written consent of each Lender, other than in connection with any Indebtedness with respect to which each then existing Lender is offered a bona fide opportunity to fund or otherwise provide its pro rata share of such other Indebtedness on the same terms (other than bona fide backstop fees, any arrangement or restructuring fees) as offered to all other providers (or their affiliates) of such other Indebtedness; provided, however, that if any such Lender does not accept an offer to provide its pro rata share of such other Indebtedness, such Lender shall be deemed to have declined such offer;

(i)            [reserved]; or

(j)            amend or waive the definition of “Triggering Event” or Section 8.01(m), in each case, without the written consent of each Lender directly affected thereby; provided that any amendment or waiver of clause (i) or (j) of such definitions shall only require the consent of Required Lenders.

and provided further that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent or the Collateral Agent, as applicable, in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent or the Collateral Agent, as applicable, under this Agreement or any other Loan Document; and (ii) Section 10.07(j) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Term Loans are being funded by an SPC at the time of such amendment, waiver or other modification.

Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that the Commitment of such Lender may not be increased or extended without the consent of such Lender (it being understood that any Commitments or Term Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of the Lenders).

If the Administrative Agent and the Lead Borrower shall have jointly identified an obvious error (including, but not limited to, an incorrect cross-reference) or any error or omission of a technical or immaterial nature, in each case, in any provision of this Agreement or any other Loan Document (including, for the avoidance of doubt, any exhibit, schedule or other attachment to any Loan Document), then the Administrative Agent (acting in its sole discretion) and the Borrowers or any other relevant Loan Party shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document. Notification of such amendment shall be made by the Administrative Agent to the Lenders promptly upon such amendment becoming effective.

103 

 

Section 10.02       Notices and Other Communications; Facsimile Copies.

(a)            General. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Loan Document shall be in writing (including by facsimile transmission or electronic mail). All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

(i)            if to any Loan Party, the Administrative Agent or the Collateral Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and

(ii)            if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the Lead Borrower, the Administrative Agent and the Collateral Agent.

All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail to a party, four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 10.02(c)), when delivered; provided that notices and other communications to the Administrative Agent and the Collateral Agent pursuant to Article II shall not be effective until actually received by such Person. In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder.

(b)            Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile or other electronic communication. The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually signed originals and shall be binding on all Loan Parties, the Agents and the Lenders.

(c)            Reliance by Agents and Lenders. The Administrative Agent, the Collateral Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices) purportedly given by or on behalf of any Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Each Borrower shall indemnify each Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of any Loan Party in the absence of gross negligence or willful misconduct of such Agent-Related Person as determined in a final and non-appealable judgment by a court of competent jurisdiction. All telephonic notices to the Administrative Agent or Collateral Agent may be recorded by the Administrative Agent or the Collateral Agent, and each of the parties hereto hereby consents to such recording.

Section 10.03       No Waiver; Cumulative Remedies. No failure by any Lender, the Administrative Agent or the Collateral Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.

104 

 

Section 10.04      Attorney Costs and Expenses. Each Loan Party jointly and severally agrees (a) to pay or reimburse the Administrative Agent, the Collateral Agent and the Lenders party to this Agreement on the Closing Date for all reasonable out-of-pocket costs and expenses incurred in connection with the preparation, negotiation, syndication and execution of this Agreement and the other Loan Documents, and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby (including all Attorney Costs, which shall be limited to Paul Hastings LLP (and one local and specialist counsel in each applicable jurisdiction for each group and, in the event of a conflict of interest, one additional counsel of each type to the affected parties)) and (b) to pay or reimburse the Administrative Agent, the Collateral Agent and each Lender for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and including all Attorney Costs, which shall be limited to Attorney Costs of one counsel to the Administrative Agent and Lenders (taken as a whole) (and one local counsel in each applicable jurisdiction for each group)). The foregoing costs and expenses shall include all reasonable search, filing, recording and title insurance charges and fees related thereto, and other reasonable out-of-pocket expenses incurred by any Agent. The agreements in this Section 10.04 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations. All amounts due under this Section 10.04 shall be paid within ten (10) Business Days of receipt by the Lead Borrower of an invoice relating thereto setting forth such expenses in reasonable detail; provided that, with respect to the Closing Date, all amounts due under this Section 10.04 shall be paid on the Closing Date to the extent invoiced to the Borrower within one (1) Business Day of the Closing Date. If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent in its sole discretion.

105 

 

Section 10.05      Indemnification. Each Loan Party shall, jointly and severally, indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, and directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact of each of the foregoing (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs, which shall be limited to Attorney Costs of one counsel to the Administrative Agent and Arrangers (and one local counsel in each applicable jurisdiction for each group and, in the event of any conflict of interest, one additional counsel of each type to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment or Term Loan, (c) any actual or alleged presence or Release of Hazardous Materials at, on, under or from any property or facility currently or formerly owned, leased or operated by the Loan Parties or any Subsidiary, or any Environmental Liability related in any way to any Loan Parties, (d) the payment or recovery of an amount in connection with the Loan Documents in a currency other than the currency required under the Loan Document, (e) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (a “Proceeding”) or whether or not such Proceeding is brought by any Loan Party or any other Person and (f) any payments of indemnification obligations pursuant to Section 9.17 hereof (all the foregoing, collectively, the “Indemnified Liabilities”) in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that, notwithstanding the foregoing, such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence or willful misconduct of such Indemnitee or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Indemnitee, as determined by the final non-appealable judgment of a court of competent jurisdiction. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or the Lead Borrower or any Subsidiary have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of a Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party, or which are included in a third-party claim, and for any reasonable out-of-pocket expenses related thereto). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Loan Party’s directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents are consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent or the Collateral Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. This Section 10.05 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

Section 10.06      Payments Set Aside. To the extent that any payment by or on behalf of the Borrowers is made to any Agent or any Lender, or any Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall, to the fullest extent possible under provisions of applicable Law, be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect.

106 

 

Section 10.07       Successors and Assigns. (a)  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Assignee pursuant to an assignment made in accordance with the provisions of Section 10.07(b) (such an assignee, an “Eligible Assignee”), (ii) by way of participation in accordance with the provisions of Section 10.07(e), (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.07(g) or (iv) to an SPC in accordance with the provisions of Section 10.07(h) (and any other attempted assignment or transfer by any party hereto shall be null and void); provided, however, that notwithstanding the foregoing, no Lender may assign or transfer by participation any of its rights or obligations hereunder to (i) any Person that is a Defaulting Lender, (ii) a natural Person or (iii) a Disqualified Institution. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 10.07(e) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b)      (i)      Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more assignees (“Assignees”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Term Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, delayed or conditioned, except in connection with a proposed assignment to any Disqualified Institution) of:

(A)            the Lead Borrower, provided that no consent of the Lead Borrower shall be required for (i) an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or (ii) other than with respect to any proposed assignment to any Person that is a Disqualified Institution, as assignment if an Event of Default under Section 8.01(a), Section 8.01(f) or Section 8.01(g) has occurred and is continuing; provided that, other than with respect to any proposed assignment to any Person that is a Disqualified Institution, the Lead Borrower shall be deemed to have consented to any such assignment unless it shall have objected thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; and

(B)            the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund.

107 

 

(ii)            Assignments shall be subject to the following additional conditions:

(A)            except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Term Loans of any Class, the amount of the Commitment or Term Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than an amount of $1,000,000 unless each of the Lead Borrower and the Administrative Agent otherwise consents, provided that such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;

(B)            the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 (unless such fee is waived by the Administrative Agent); provided that only one such fee shall be payable in the event of simultaneous assignments to or from two or more Approved Funds; and

(C)            the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire along with any required know-your-customer documentation.

In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Lead Borrower and the Administrative Agent, the applicable Pro Rata Share of Term Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full Pro Rata Share of all Term Loans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

(c)            Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.07(d), from and after the effective date specified in each Assignment and Assumption (which for the avoidance of doubt shall be the date recorded in the Register), the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, and the surrender by the assigning Lender of its Term Note, the relevant Borrowers (at their expense) shall execute and deliver a Term Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (c) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.07(e).

108 

 

(d)            The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at one of the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the Term Loans owing to each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, an Administrative Questionnaire completed in respect of the Assignee (if applicable and unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in Section 10.07(b)(ii)(B) above (if applicable) and, if required, the written consent of the Lead Borrower and the Administrative Agent to such assignment, the Administrative Agent shall (i) accept such Assignment and Assumption and (ii) record the information contained therein in the Register.  No assignment shall be effective unless it has been recorded in the Register as provided in this paragraph. The Register shall be available for inspection by the Borrowers, any Agent and any Lender, at any reasonable time and from time to time upon reasonable prior written notice.

(e)            Any Lender may at any time sell participations to any Person (other than a natural person, a Disqualified Institution or a Defaulting Lender) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Term Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clauses (a) through (f) of the first proviso to Section 10.01 that requires the affirmative vote of such Lender. Subject to Section 10.07(f), the Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations of such Sections) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(c). To the extent permitted by applicable Law, each Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Term Loans or other obligations under the Loan Documents (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person, except that the portion of any Participant Register relating to any Participant or SPC requesting payment from a Borrower or seeking to exercise its rights under Section 10.09 shall be available for inspection by the Lead Borrower upon reasonable request to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or as is otherwise required thereunder.

109 

 

(f)            A Participant shall not be entitled to receive any greater payment under Sections 3.01, 3.04 and 3.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Lead Borrower’s prior written consent, not to be unreasonably withheld or delayed (it being understood the Lead Borrower shall have a reasonable basis for withholding consent if such Participant would result in materially increased indemnification obligation to the Lead Borrower at such time).

(g)            Any Lender may, without the consent of the Lead Borrower or the Administrative Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Term Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over it; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(h)            Each party agrees that upon a transfer of rights and obligations, or an assignment of rights and obligations, or a novation of rights and obligations under this Agreement or any Loan Documents, by an existing Lender to a new Lender, any Lien created under the Collateral Documents and/or guarantee given under this Agreement or any other Loan Documents shall be maintained for the benefit of the Collateral Agent, the new Lender and the remaining Secured Parties as and to the extent contemplated by the Loan Documents, including, for the purposes of articles 1278 and 1281 of the Luxembourg Civil Code.

(i)            [Reserved].

110 

 

(j)            Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Lead Borrower (an “SPC”) the option to provide all or any part of any Term Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan, the Granting Lender shall be obligated to make such Term Loan pursuant to the terms hereof and (iii) such SPC and the applicable Term Loan or any applicable part thereof, shall be appropriately reflected in the Participant Register. Each party hereto hereby agrees that (i) an SPC shall be entitled to the benefit of Sections 3.01, 3.04 and 3.05 (subject to the requirements and the limitations of such Sections), but neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrowers under this Agreement except in the case of Section 3.01, to the extent that the grant to the SPC was made with the prior written consent of the Lead Borrower (not to be unreasonably withheld or delayed; for the avoidance of doubt, the Lead Borrower shall have reasonable basis for withholding consent if an exercise by SPC immediately after the grant would result in materially increased indemnification obligation to a Borrower at such time), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Term Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Term Loan were made by such Granting Lender. Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Lead Borrower and the Administrative Agent and with the payment of a processing fee of $3,500, assign all or any portion of its right to receive payment with respect to any Term Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.

(k)            Notwithstanding anything to the contrary contained herein, without the consent of the Lead Borrower or the Administrative Agent, (1) any Lender may in accordance with applicable Law create a security interest in all or any portion of the Term Loans owing to it and the Term Notes, if any, held by it and (2) any Lender that is a Fund may create a security interest in all or any portion of the Term Loans owing to it and the Term Notes, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.

111 

 

Section 10.08      Confidentiality. Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information, except that Information may be disclosed (a) to its Affiliates and its and its Affiliates’ managers, administrators, directors, officers, employees, trustees, partners, investors, investment advisors and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent requested by any Governmental Authority or self-regulatory authority having or asserting jurisdiction over such Person (including any Governmental Authority regulating any Lender or its Affiliates); (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) subject to an agreement containing provisions substantially the same as those of this Section 10.08 (or as may otherwise be reasonably acceptable to the Lead Borrower), to any pledgee referred to in Section 10.07(g), Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in any of its rights or obligations under this Agreement; (f) with the written consent of the Lead Borrower; (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 10.08 or becomes available to the Administrative Agent, any Lender, or any of their respective Affiliates on a nonconfidential basis from a source other than a Loan Party or its related parties (so long as such source is not known to the Administrative Agent, such Lender or any of their respective Affiliates to be bound by confidentiality obligations to any Loan Party); (h) to any Governmental Authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) regulating any Lender; (i) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to Loan Parties and their Subsidiaries received by it from such Lender) or to the CUSIP Service Bureau or any similar organization; (j) to the extent such information is independently developed by any Agent or Lender; (k) in connection with the exercise of any remedies hereunder, under any other Loan Document or the enforcement of its rights hereunder or thereunder. In addition, the Agents and the Lenders may disclose the existence of this Agreement and publicly available information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions. For the purposes of this Section 10.08, “Information” means all information received from the Loan Parties relating to any Loan Party, its Affiliates or its Affiliates’ directors, officers, employees, trustees, investment advisors or agents, or its business, other than any such information that is publicly available to any Agent or any Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section 10.08; provided that, in the case of information received from a Loan Party after the Closing Date, such information is clearly identified at the time of delivery as confidential or is delivered pursuant to Section 6.01, 6.02 or 6.03 hereof.

Section 10.09      Setoff. In addition to any rights and remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, each Lender and its Affiliates (and the Collateral Agent, in respect of any unpaid fees, costs and expenses payable hereunder) is authorized at any time and from time to time, without prior notice to each Borrower, any such notice being waived by each Borrower (on its own behalf and on behalf of each Loan Party and each of its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other Indebtedness at any time owing by, such Lender and its Affiliates or the Collateral Agent to or for the credit or the account of the respective Loan Parties and their Subsidiaries against any and all Obligations owing to such Lender and its Affiliates or the Collateral Agent hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to notify the Lead Borrower and the Administrative Agent after any such set off and application made by such Lender; provided, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, the Collateral Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, the Collateral Agent and such Lender may have at Law.

112 

 

Section 10.10      Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Term Loans or, if it exceeds such unpaid principal, refunded to the Borrowers. In determining whether the interest contracted for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

Section 10.11      Counterparts. This Agreement and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier (or other electronic transmission, e.g., .pdf) of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document. The Agents may also require that any such documents and signatures delivered by telecopier be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.

Section 10.12      Integration. This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall not be deemed a conflict of this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.

Section 10.13      Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Term Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.

113 

 

Section 10.14      Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. In the event of any such illegality, invalidity or unenforceability, the parties shall negotiate in good faith with a view to agreeing on a legal, valid and enforceable replacement provision which, to the extent practicable, is in accordance with the intent and purposes of this Agreement and in its economic effect comes as close as possible to the illegal, invalid or unenforceable provision.

Section 10.15      GOVERNING LAW. THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY COLLATERAL DOCUMENT, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

(a)            ANY LEGAL ACTION OR PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS AND AGREES THAT IT WILL NOT COMMENCE OR SUPPORT ANY SUCH ACTION OR PROCEEDING IN ANOTHER JURISDICTION. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN OR IN ANY OTHER LOAN DOCUMENT WILL PREVENT ANY LENDER, THE ADMINISTRATIVE AGENT OR THE COLLATERAL AGENT FROM BRINGING ANY ACTION TO ENFORCE ANY AWARD OR JUDGMENT OR EXERCISE ANY RIGHT UNDER THE COLLATERAL DOCUMENTS OR AGAINST ANY COLLATERAL OR ANY OTHER PROPERTY OF ANY LOAN PARTY IN ANY OTHER FORUM IN WHICH JURISDICTION CAN BE ESTABLISHED. EACH LOAN PARTY, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH LOAN PARTY waives any immunity (sovereign or otherwise) from jurisdiction of any court or from any legal process to which you or your properties or assets may be entitled. To the extent that ANY LOAN PARTY has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, SUCH LOAN PARTY irrevocably waives such immunity in respect of its obligations under the Loan Documents.

114 

 

(b)            EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS IN THE MANNER PROVIDED FOR NOTICES (OTHER THAN BY TELECOPIER OR ELECTRONIC MAIL) IN SECTION 10.02. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE OTHER PROVISIONS OF THIS SECTION 10.15 AND IN ADDITION TO THE SERVICE OF PROCESS PROVIDED FOR HEREIN, THE LEAD BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS THE CO- BORROWER (AND THE CO- BORROWER HEREBY IRREVOCABLY ACCEPTS SUCH APPOINTMENT), AS ITS AUTHORIZED DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON THE CO- BORROWER SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE LEAD BORROWER AGREES TO PROMPTLY DESIGNATE A NEW AUTHORIZED DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT.

Section 10.16      WAIVER OF RIGHT TO TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HERETO HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.16 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

Section 10.17      Binding Effect. This Agreement shall become effective when it shall have been executed by the Loan Parties and the Administrative Agent shall have been notified by each Lender that each such Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Loan Parties, each Agent and each Lender and their respective successors and assigns, in each case in accordance with Section 10.07 (if applicable) and except that no Loan Party shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders.

115 

 

Section 10.18      USA Patriot Act. Each Lender that is subject to the USA Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Loan Party that pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name, address and tax identification number of the Loan Parties and other information regarding the Loan Parties that will allow such Lender or the Administrative Agent, as applicable, to identify the Loan Parties in accordance with the USA Patriot Act. This notice is given in accordance with the requirements of the USA Patriot Act and is effective as to the Lenders and the Administrative Agent.

Section 10.19      No Advisory or Fiduciary Responsibility. (a) In connection with all aspects of each transaction contemplated hereby, each Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that (i) the facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Borrowers and their respective Affiliates, on the one hand, and the Agents and the Lenders, on the other hand, and the Borrowers are capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof), (ii) in connection with the process leading to such transaction, each of the Agents and the Lenders is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Borrowers or any of their respective Affiliates, stockholders, creditors or employees or any other Person, (iii) none of the Agents or the Lenders has assumed or will assume an advisory, agency or fiduciary responsibility in favor of any Borrower or any of its Affiliates with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether any Agent or Lender has advised or is currently advising the Borrowers or any of its Affiliates on other matters) and none of the Agents or the Lenders has any obligation to the Borrowers or any of their respective Affiliates with respect to the financing transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents, (iv) the Agents and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from, and may conflict with, those of the Borrowers and their respective Affiliates, and none of the Agents or the Lenders has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship and (v) the Agents and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate. Each Loan Party hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against the Agents and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty under applicable law relating to agency and fiduciary obligations.

116 

 

(b)            Each Loan Party acknowledges and agrees that each Lender and any affiliate thereof may lend money to, invest in, and generally engage in any kind of business with, any of the Loan Parties, any Affiliate thereof or any other person or entity that may do business with or own securities of any of the foregoing, all as if such Lender or Affiliate thereof were not a Lender hereunder and without any duty to account therefor to any other Lender, any Loan Party or Affiliate of the foregoing.

Section 10.20      Judgment Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or under any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Loan Parties in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from the Loan Parties in the Agreement Currency, the Loan Parties agree, jointly and severally, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to the respective Loan Party (or to any other Person who may be entitled thereto under applicable law).

Section 10.21      Reserved.

Section 10.22      Reserved.

Section 10.23      Certain ERISA Matters.

(a)            Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Loan Party, that at least one of the following is and will be true:

(i)             such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Plans in connection with the Term Loans or the Commitments,

(ii)            the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Term Loans, the Commitments and this Agreement,

117 

 

(iii)            (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Term Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Term Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Term Loans, the Commitments and this Agreement, or

(iv)            such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

(b)            In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Loan Party, that:

(i)             none of the Administrative Agent or any of its Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto),

(ii)            the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Term Loans, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),

(iii)            the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Term Loans, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),

(iv)            the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Term Loans, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Term Loans, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and

118 

 

(v)            no fee or other compensation is being paid directly to the Administrative Agent or its Affiliates for investment advice (as opposed to other services) in connection with the Term Loans, the Commitments or this Agreement.

(c)            The Administrative Agent hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Term Loans, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Term Loans or the Commitments for an amount less than the amount being paid for an interest in the Term Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

Article XI

Guarantee

Section 11.01      The Guarantee. Each Guarantor hereby jointly and severally with the other Guarantors guarantees, as a primary obligor and not as a surety to each Secured Party and their respective successors and assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of and interest (including any interest, fees, Make-Whole Amount, Applicable Sale Premium, Applicable Prepayment Premium, costs or charges that would accrue but for the provisions of (i) the Title 11 of the United States Code after any bankruptcy or insolvency petition under Title 11 of the United States Code and (ii) any other Debtor Relief Laws) on the Term Loans made by the Lenders to, and the Notes held by each Lender of, the Borrowers, and all other Obligations from time to time owing to the Secured Parties by any Loan Party (other than such Guarantor with respect to its primary obligations) under any Loan Document strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). The Guarantors hereby jointly and severally agree that if the Borrowers or other Guarantor(s) shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.

119 

 

Section 11.02       Obligations Unconditional. The obligations of the Guarantors under Section 11.01 shall constitute a guaranty of payment and to the fullest extent permitted by applicable Law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Loan Parties under this Agreement, the Term Notes, if any, any other Loan Document or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor (except for payment in full in cash). Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:

(a)            at any time or from time to time, without notice to the Guarantors, to the extent permitted by Law, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;

(b)            any of the acts mentioned in any of the provisions of this Agreement or the Term Notes, if any, or any other agreement or instrument referred to herein or therein shall be done or omitted;

(c)            the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be amended in any respect, or any right under the Loan Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations or except as permitted pursuant to Section 11.08, any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;

(d)            any Lien or security interest granted to, or in favor of, any Lender or Agent as security for any of the Guaranteed Obligations shall fail to be perfected; or

(e)            the release of any other Guarantor pursuant to Section 11.15.

The Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and, to the extent permitted by Law, all notices whatsoever, and any requirement that any Secured Party exhaust any right, power or remedy or proceed against the Borrowers under this Agreement, the Term Notes, if any, any other Loan Document or any other agreement or instrument referred to herein or therein, or against any other person under any other guarantee of, or security for, any of the Guaranteed Obligations. The Guarantors waive, to the extent permitted by Law, any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by any Secured Party upon this Guarantee or acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between the Borrowers and the Secured Parties shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment without regard to any right of offset with respect to the Guaranteed Obligations at any time or from time to time held by Secured Parties, and the obligations and liabilities of the Guarantors hereunder shall not be conditioned or contingent upon the pursuit by the Secured Parties or any other person at any time of any right or remedy against the Borrowers or against any other person which may be or become liable in respect of all or any part of the Guaranteed Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto. This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Lenders, and their respective successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be no Guaranteed Obligations outstanding.

120 

 

Section 11.03      Reinstatement. The obligations of the Guarantors under this Article XI shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrowers or other Loan Party in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.

Section 11.04      Subrogation; Subordination. Each Guarantor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of the Commitments of the Lenders under this Agreement it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 11.01, whether by subrogation or otherwise, against any Borrower or any other Guarantor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations. Any Indebtedness of any Loan Party permitted pursuant to Section 7.03(b) and (c) shall be subordinated to such Loan Party’s Obligations in the manner set forth in the Intercompany Parent Note and the Intercompany Note, as applicable, evidencing such Indebtedness.

Section 11.05      Remedies. The Guarantors jointly and severally agree that, as between the Guarantors and the Lenders, the obligations of the Borrowers under this Agreement and the Term Notes, if any, may be declared to be forthwith due and payable as provided in Section 8.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 8.02) for purposes of Section 11.01, notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrowers and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrowers) shall forthwith become due and payable by the Guarantors for purposes of Section 11.01.

Section 11.06      Instrument for the Payment of Money. Each Guarantor hereby acknowledges that the guarantee in this Article XI constitutes an instrument for the payment of money, and consents and agrees that any Lender or Agent, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.

Section 11.07      Continuing Guarantee. The guarantee in this Article XI is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising.

121 

 

Section 11.08      General Limitation on Guarantee Obligations. In any action or proceeding involving any state, provincial or federal corporate, limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other Law affecting the rights of creditors generally, if the obligations of any Guarantor under Section 11.01 would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 11.01, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Guarantor, any Loan Party or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 11.16) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.

Section 11.09      Reserved.

Section 11.10      Reserved.

Section 11.11      Reserved.

Section 11.12      Reserved.

Section 11.13      Reserved.

Section 11.14      Reserved.

Section 11.15      Release of Guarantors. When all Commitments hereunder have terminated, and all Term Loans or other Obligations hereunder which are accrued and payable have been paid or satisfied, this Agreement and the Guarantees made herein shall terminate with respect to all Obligations, except with respect to Obligations that expressly survive such repayment pursuant to the terms of this Agreement.

Section 11.16      Right of Contribution. Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment. Each Guarantor’s right of contribution shall be subject to the terms and conditions of Section 11.08.

Section 11.17      Reserved.

Section 11.18      Reserved.

Section 11.19      Reserved.

Section 11.20      Acknowledgment and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liabilities of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

122 

 

(a)            the application of any Write-Down and Conversion Powers by an the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

(b)            the effects of any Bail-in Action on any such liability, including, if applicable:

(i)            a reduction in full or in part or cancellation of any such liability;

(ii)            a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii)            the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.

As used in this Section 11.20, the following terms shall have the meanings set forth below.

(c)            “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

(d)            “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an Affected Financial Institution.

(e)            “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

(f)            “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

(g)            “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

123 

 

(h)            “UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

(i)            “Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

124 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

  TRINSEO LUXCO FINANCE SPV S.À R.L., as Lead Borrower  
   
   
  By: /s/ David Stasse
    Name: David Stasse
    Title: Manager
     
     
  TRINSEO NA FINANCE SPV LLC, as Co-Borrower  
   
   
  By: /s/ David Stasse
    Name: David Stasse
    Title: Executive Vice President and Chief Financial Officer
       
     
  TRINSEO LUXCO S.À R.L., as Parent  
   
   
  By: /s/ David Stasse
    Name: David Stasse
    Title: Manager
   
   
  TRINSEO NA FINANCE LLC, as Holdings
   
   
  By: /s/ David Stasse
    Name: David Stasse
    Title: Executive Vice President and Chief Financial Officer

 

 

 

 

  ALTER DOMUS (US) LLC, as Administrative Agent and Collateral Agent
   
  By: /s/ Winnalynn N. Kantaris
  Name: Winnalynn N. Kantaris
  Title: Associate General Counsel

 

 

 

 

  AG Credit Solutions Master Fund IIA, L.P., as a Lender
  By: Angelo Gordon & Co., L.P., as manager or advisor
   
   
  By: /s/ Christopher Moore
  Name: Christopher Moore
  Title: Authorized Signatory
   
   
  AG Credit Solutions Master Fund IIB, L.P., as a Lender
  By: Angelo Gordon & Co., L.P., as manager or advisor
   
   
  By: /s/ Christopher Moore
  Name: Christopher Moore
  Title: Authorized Signatory
   
   
  AG Potomac Fund, L.P., as a Lender
  By: Angelo Gordon & Co., L.P., as manager or advisor
   
   
  By: /s/ Christopher Moore
  Name: Christopher Moore
  Title: Authorized Signatory
   
   
  AG Capital Solutions SMA One, L.P., as a Lender
  By: Angelo Gordon & Co., L.P., as manager or advisor
   
   
  By: /s/ Christopher Moore
  Name: Christopher Moore
  Title: Authorized Signatory
   
   
  AG Cataloochee, L.P., as a Lender
  By: Angelo Gordon & Co., L.P., as manager or advisor
   
   
  By: /s/ Christopher Moore
  Name: Christopher Moore
  Title: Authorized Signatory

 

 

 

 

  AG Centre Street Partnership, L.P., as a Lender
  By: Angelo Gordon & Co., L.P., as manager or advisor
   
   
  By: /s/ Christopher Moore
  Name: Christopher Moore
  Title: Authorized Signatory
   
   
  AG MM, L.P., as a Lender
  By: Angelo Gordon & Co., L.P., as manager or advisor
   
   
  By: /s/ Christopher Moore
  Name: Christopher Moore
  Title: Authorized Signatory
   
   
  AG CSF2A Dislocation Master Fund A, L.P., as a Lender
  By: Angelo Gordon & Co., L.P., as manager or advisor
   
   
  By: /s/ Christopher Moore
  Name: Christopher Moore
  Title: Authorized Signatory
   
   
  AG Corporate Credit Opportunities Fund, L.P., as a Lender
  By: Angelo Gordon & Co., L.P., as manager or advisor
   
   
  By: /s/ Christopher Moore
  Name: Christopher Moore
  Title: Authorized Signatory
   
   
  AG Super Fund Master, L.P., as a Lender
  By: Angelo Gordon & Co., L.P., as manager or advisor
   
   
  By: /s/ Christopher Moore
  Name: Christopher Moore
  Title: Authorized Signatory

 

 

 

 

  OPPS XI TRINSEO HOLDINGS, L.P.
   
  By: Oaktree Fund GP, LLC - Its: General Partner
   
  By: Oaktree Fund GP I, L.P - Its: Managing Member
   
  as a Lender
   
  By: /s/ David Nicoll
  Name: David Nicoll
  Title: Managing Director
   
   
  By: /s/ Ross Rosenfelt
  Name: Ross Rosenfelt
  Title: Managing Director
   
   
  OPPS XII TRINSEO HOLDINGS, L.P
   
  By: Oaktree Fund GP IIA, LLC - Its: General Partner
   
  By: Oaktree Fund GP II, L.P. - Its: Managing Member
   
  as a Lender
   
  By: /s/ David Nicoll
  Name: David Nicoll
  Title: Managing Director
   
   
  By: /s/ Ross Rosenfelt
  Name: Ross Rosenfelt
  Title: Managing Director

 

 

 

 

  Oaktree Senior Loan Fund, L.P.
  , as a Lender
   
  By: Oaktree Senior Loan Fund GP, L.P. - Its: General Partner
   
  By: Oaktree Fund GP IIA, LLC - Its: General Partner
   
  By: Oaktree Fund GP II, L.P. - Its: Managing Member
   
   
  By: /s/ Ronald Jin
  Name: Ronald Jin
  Title: Authorized Signatory
   
   
  By: /s/ Ronnie Kaplan
  Name: Ronnie Kaplan
  Title: Authorized Signatory

 

 

 

 

  APOLLO ACCORD+ AGGREGATOR B, L.P., as a Lender
   
  By: Apollo Accord+ Advisors, L.P., its general partner
  By: Apollo Accord+ Advisors GP, LLC, its general partner
   
  By: /s/ William B. Kuesel
  Name: William B. Kuesel
  Title: Vice President
   
   
  Apollo Defined Return Aggregator B, L.P, as a Lender
   
  By: Apollo Defined Return Advisors, L.P., its general partner
  By: Apollo Defined Return Advisors GP, LLC, its general partner
   
  By: /s/ William B. Kuesel
  Name: William B. Kuesel
  Title: Vice President
   
   
  Apollo Centre Street Partnership, L.P., as a Lender
   
  By: Apollo Centre Street Management, LLC, its investment manager
   
  By: /s/ William B. Kuesel
  Name: William B. Kuesel
  Title: Vice President
   
   
  Apollo Lincoln Fixed Income Fund, L.P., as a Lender
   
  By: Apollo Lincoln Fixed Income Management, LLC, its investment manager
   
  By: /s/ William B. Kuesel
  Name: William B. Kuesel
  Title: Vice President

 

 

 

 

  Apollo Moultrie Credit Fund, L.P., as a Lender
   
  By: Apollo Moultrie Credit Fund Management, LLC, its investment manager
   
  By: /s/ William B. Kuesel
  Name: William B. Kuesel
  Title: Vice President
   
   
  Apollo Calliope Fund, L.P., as a Lender
   
  By: Apollo Calliope Management, LLC, its investment manager
   
  By: /s/ William B. Kuesel
  Name: William B. Kuesel
  Title: Vice President
   
   
  Apollo Excelsior Co-Invest, L.P., as a Lender
   
  By: Apollo Excelsior Advisors, L.P., its general partner
  By: Apollo Excelsior Ultimate GP, LLC, its general partner
   
  By: /s/ William B. Kuesel
  Name: William B. Kuesel
  Title: Vice President

 

 

 

 

  ACMP HOLDINGS, LLC, as a Lender
   
   
  By: /s/ Daniel Duval
  Name: Daniel Duval
  Title: Vice President

 

 

 

 

Exhibit 10.2

 

Execution Version

 

2023 INCREMENTAL AND REFINANCING AMENDMENT (this “Amendment”), dated as of September 8, 2023, to the Credit Agreement dated as of September 6, 2017 (as amended, restated, supplemented and/or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”, and the Existing Credit Agreement, as amended by this Amendment, the “Amended Credit Agreement”) among TRINSEO HOLDING S.À R.L., a private limited liability company (société à responsabilité limitée), organized and established under the laws of the Grand Duchy of Luxembourg, having its registered office at 26, boulevard Royal, L-2449 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Register of Commerce and Companies (“RCS”) under number B 153582 (“Holdings”), TRINSEO IRELAND HOLDINGS LIMITED, an Irish private company limited by shares (“Intermediate Holdings”), TRINSEO MATERIALS OPERATING S.C.A., a partnership limited by shares (société en commandite par actions) organized and established under the laws of the Grand Duchy of Luxembourg, having its registered office at 26, boulevard Royal, L-2449 Luxembourg, Grand Duchy of Luxembourg, registered with the RCS under number B153586 (the “Lead Borrower”), acting by its general partner, Holdings, TRINSEO MATERIALS FINANCE, INC., a Delaware corporation (the “Co-Borrower”, and together with the Lead Borrower, the “Borrowers” and each, a “Borrower”), the Guarantors party thereto from time to time, the Lenders party thereto from time to time and DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent, Collateral Agent, L/C Issuer and Swing Line Lender.

 

WHEREAS, pursuant to Section 2.17 of the Existing Credit Agreement, the Lead Borrower has requested that the lender party hereto as a 2023 Refinancing Term Loan Lender (the “2023 Refinancing Term Loan Lender”) provide Refinancing Term Loans (the “2023 Refinancing Term Loans”) under and as defined in the Existing Credit Agreement, in an aggregate principal amount equal to its commitment to provide such Loans as set forth on Schedule I hereto (the “2023 Refinancing Term Loan Commitments”);

 

WHEREAS, pursuant to Section 2.16 of the Existing Credit Agreement, the Lead Borrower has requested that the lender party hereto as a 2023 Incremental Term Loan Lender (the “2023 Incremental Term Loan Lender”) make Incremental Term Loans (the “2023 Incremental Term Loans” and, together with the 2023 Refinancing Term Loans, the “2023 Term Loans”) under and as defined in the Existing Credit Agreement in an aggregate principal amount equal to its commitment to provide such Loans as set forth on Schedule I hereto (the “2023 Incremental Term Loan Commitments”);

 

WHEREAS, the aggregate net cash proceeds of the 2023 Refinancing Term Loans will be used by the Borrowers, together with cash on hand, in accordance with Sections 2.05(b)(iii)(x) and Section 2.05(b)(vi)(A)(y) of the Existing Credit Agreement, to repay in full the outstanding principal amount of the 2018 Refinancing Term Loans, together with all accrued but unpaid interest, fees and expenses payable in connection therewith (the “Term Loan Refinancing”);

 

WHEREAS, the aggregate net cash proceeds of the 2023 Incremental Term Loans will be used by the Borrowers, together with cash on hand, to redeem $385,000,000 of the principal amount of the outstanding Senior Notes issued under the Senior Notes Indenture on or about September 8, 2023;

 

WHEREAS, Angelo, Gordon & Co., L.P. and Oaktree Capital Management, L.P. have acted as joint lead arrangers for the 2023 Term Loans (the “Lead Arrangers”)

 

WHEREAS, in connection with the foregoing, the Borrowers, the 2023 Refinancing Term Loan Lender and the 2023 Incremental Term Loan Lender desire to memorialize the terms of the 2023 Refinancing Term Loan Commitments, the 2023 Incremental Term Loan Commitments by amending the Existing Credit Agreement in accordance with Sections 2.16 and 2.17 of the Existing Credit Agreement; and

 

 

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

SECTION 1. Defined Terms. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement.

 

SECTION 2. 2023 Term Loans.

 

(a) Subject to the terms and conditions set forth herein, (i) the 2023 Refinancing Term Loan Lender agrees to make 2023 Refinancing Term Loans to the Lead Borrower on the Fifth Amendment Effective Date in the aggregate principal amount equal to its 2023 Refinancing Term Loan Commitment and (ii) the 2023 Incremental Term Loan Lender agrees to make 2023 Incremental Term Loans to the Lead Borrower on the Fifth Amendment Effective Date in the aggregate principal amount equal to its 2023 Incremental Term Loan Commitment. It is understood and agreed that (x) the 2023 Refinancing Term Loans being made pursuant to this Amendment and the Amended Credit Agreement shall constitute “Refinancing Term Loans” as defined in, and pursuant to, Section 2.17(b) of the Existing Credit Agreement, (y) the 2018 Refinancing Term Loans being refinanced shall constitute “Refinanced Debt” as defined in, and pursuant to, Section 2.17(a) of the Existing Credit Agreement and (z) the 2023 Incremental Term Loans being made pursuant to this Amendment and the Amended Credit Agreement shall constitute “Incremental Term Loans” as defined in, and pursuant to, Section 2.16(b) of the Existing Credit Agreement.

 

(b) On the Fifth Amendment Effective Date, in accordance with Section 2.05(b)(iii)(x) and Section 2.05(b)(vi)(A)(y) of the Existing Credit Agreement, the Borrowers shall prepay in full all 2018 Refinancing Term Loans, together with all accrued and unpaid interest thereon, with the proceeds of the 2023 Refinancing Term Loans and cash on hand. In furtherance of the foregoing, the Lead Borrower hereby instructs and directs the Administrative Agent to apply the proceeds of the 2023 Refinancing Term Loans funded on the Fifth Amendment Effective Date to the prepayment of the outstanding principal amount of the 2018 Refinancing Term Loans.

 

(c) The 2023 Term Loans shall be deemed to constitute a single new “SOFR Borrowing” under the Amended Credit Agreement with an initial Interest Period of 1 month commencing on the Fifth Amendment Effective Date (which Interest Period shall continue in effect until such Interest Period expires and a new Type of Borrowing is selected in accordance with the provisions of Section 2.02 of the Amended Credit Agreement). The 2023 Refinancing Term Loan Lender and the 2023 Incremental Term Loan Lender acknowledge that, together with the Committed Loan Notice and the prepayment notice delivered pursuant to Section 5 of this Amendment, this Amendment constitutes all notices or requirements required under the Existing Credit Agreement in connection with the incurrence of the 2023 Refinancing Term Loans and the 2023 Incremental Term Loans on the Fifth Amendment Effective Date and each such Lender waives any other notice or request requirement under the Existing Credit Agreement.

 

(d)            The 2023 Term Loans shall be designated and constitute a new single Class of Loans under the Existing Credit Agreement as amended hereby, with terms and provisions identical to the 2018 Refinancing Term Loans and 2021 Incremental Term Loans (including as to Guarantors, Collateral (and ranking), mandatory prepayments and payment priority), except as set forth herein and in the Amended Credit Agreement.

 

(e)            Promptly following the Fifth Amendment Effective Date, all Term Notes, if any, evidencing the 2018 Refinancing Term Loans shall be cancelled and (to the extent in possession of the relevant Lender) returned to the Borrowers, and any 2023 Refinancing Term Loan Lender or 2023 Incremental Term Loan Lender may request that its 2023 Refinancing Term Loan or 2023 Incremental Term Loan, as applicable, be evidenced by a Term Note pursuant to Section 2.11 of the Amended Credit Agreement.

 

2

 

 

(f) This Amendment shall be deemed to constitute an Incremental Loan Request and Refinancing Loan Request in accordance with Section 2.16 and 2.17, respectively, of the Existing Credit Agreement.

 

SECTION 3. Amendments. Each of the parties hereto agrees that, effective as of the Fifth Amendment Effective Date and subject to the satisfaction (or waiver) of the conditions set forth herein the Existing Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Amended Credit Agreement attached as Exhibit A hereto.

 

SECTION 4. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, Holdings, Intermediate Holdings and each Borrower each represents and warrants to the other parties hereto on the Fifth Amendment Effective Date that:

 

(a)            (i) the execution, delivery and performance by such Loan Party of this Amendment (which for purposes of this Section 4 shall include the Acknowledgment and Confirmation delivered pursuant to Section 5(b) of this Amendment) is within such Loan Party’s corporate or other organizational power and has been duly authorized by all necessary corporate or other organizational action of each such Loan Party and (ii) this Amendment has been duly executed and delivered by such Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, except (A) as such enforceability may be limited by Debtor Relief Laws and by general principles of equity, (B) the need for filings, registrations and, with respect to Collateral owned by Foreign Subsidiaries, any other perfection steps necessary to create or perfect or register the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties and (C) the effect of foreign Laws, rules and regulations as they relate to pledges, if any, of Equity Interests in Foreign Subsidiaries and intercompany Indebtedness owed by Foreign Subsidiaries;

 

(b)            the execution and delivery of this Amendment by each Loan Party party hereto and the performance by such Loan Party hereof

 

(i)            does not require any material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Amendment, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (1) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are or (within such applicable period will be) in full force and effect (except to the extent not required to be obtained, taken, given or made or in full force and effect pursuant to the Collateral and Guarantee Requirement) and (2) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect; and

 

3

 

 

(ii)            does not (a) contravene the terms of any Loan Party’s Organization Documents, (b) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01 of the Existing Credit Agreement), or require any payment to be made under (x) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (y) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, or (c) violate any material Law; except with respect to any conflict, breach, contravention or payment (but not the creation of any Lien) referred to in clause (ii)(b)(x), to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect;

 

(c)            the representations and warranties contained in Article V of the Existing Credit Agreement shall be true and correct in all material respects on and as of the Fifth Amendment Effective Date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period (other than the representations and warranties contained in Sections 5.05 and 5.13 of the Existing Credit Agreement, which shall be true and correct as of the Fifth Amendment Effective Date); provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;

 

(d)            on the Fifth Amendment Effective Date (after giving effect to the transactions contemplated by this Amendment), the Lead Borrower and its Restricted Subsidiaries, on a consolidated basis, are Solvent;

 

(e)            at the time of and immediately after giving effect to this Amendment, no Default or Event of Default has occurred or is continuing or shall result from this Amendment, the incurrence of the 2023 Term Loans or the application of the proceeds therefrom;

 

(f)            the designation of Trinseo NA Finance LLC, a Delaware limited liability company (“UnSub Holdings”), and Trinseo NA Finance SPV LLC, a Delaware limited liability company (“UnSub Borrower”), as Unrestricted Subsidiaries was permitted under the Credit Agreement, the Senior Notes Indenture and that certain Indenture, dated as of March 24, 202, by and among the Lead Borrower, the Co-Borrower and the Senior Notes Trustee (the “2029 Indenture”); and

 

(g)            the transfer by Trinseo LLC to UnSub Borrower of its Equity Interests in Americas Styrenics LLC is permitted under the Credit Agreement, the Senior Notes Indenture and the 2029 Indenture.

 

SECTION 5. Fifth Amendment Effective Date. Section 3 of this Amendment shall become effective as of the first date (the “Fifth Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the applicable Lenders):

 

(a)            the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by Holdings, Intermediate Holdings, each Borrower, the Administrative Agent, the 2023 Refinancing Term Loan Lender and the 2023 Incremental Term Loan Lender;

 

(b)            the Administrative Agent (or its counsel) shall have received the Acknowledgment and Confirmation, substantially in the form of Exhibit B attached hereto, executed and delivered by a Responsible Officer of each Loan Party (other than any Loan Party organized under the laws of The Netherlands (collectively, the “Dutch Loan Parties”)) (in each case, including by way of facsimile or other electronic transmission);

 

4

 

 

(c)            the Administrative Agent (or its counsel) shall have received on the Fifth Amendment Effective Date the Irish law deed of confirmation dated on or about the Fifth Amendment Effective Date among Holdings, the Lead Borrower, Intermediate Holdings, Trinseo Finance Ireland Unlimited Company, Trinseo Ireland Global IHB Limited, Trinseo Services Ireland Limited and the Collateral Agent;

 

(d) the Administrative Agent (or its counsel) shall have received on the Fifth Amendment Effective Date, (i) the Hong Kong law-governed third deed of confirmatory security dated on or about the date of this Amendment (in respect of the debenture dated 6 September 2017, as supplemented by the deed of confirmatory security relating thereto dated 22 May 2018, and as further supplemented by the second deed of confirmatory security relating thereto dated 3 May 2021) between Trinseo (Hong Kong) Limited and the Collateral Agent (the “HK Debenture Third Deed of Confirmatory Security”), (ii) the Hong Kong law governed third deed of confirmatory security dated on or about the date of this Amendment (in respect of the share charge dated 6 September 2017, as supplemented by the deed of confirmatory security relating thereto dated 22 May 2018, and as further supplemented by the second deed of confirmatory security relating thereto dated 3 May 2021) between Trinseo Holdings Asia Pte. Ltd. and the Collateral Agent (the “HK Share Charge Third Deed of Confirmatory Security”), (iii) the Singapore law governed third composite deed of confirmatory security dated on or about the date of this Amendment (in respect of (A) the Singapore law security deed dated 6 September 2017, as supplemented by the deed of confirmatory security relating thereto dated 22 May 2018, and as further supplemented by the second deed of confirmatory security relating thereto dated 3 May 2021, (B) the Singapore law share charge dated 6 September 2017, as supplemented by the deed of confirmatory security relating thereto dated 22 May 2018, and as further supplemented by the second deed of confirmatory security relating thereto dated 3 May 2021, and (C) the Singapore law share charge dated 6 September 2017, as supplemented by the deed of confirmatory security relating thereto dated 22 May 2018, and as further supplemented by the second deed of confirmatory security relating thereto dated 3 May 2021) between Trinseo Holdings Asia Pte. Ltd., Trinseo Holding B.V. and the Collateral Agent (the “Singapore Third Composite Deed of Confirmatory Security”, and together with the HK Debenture Third Deed of Confirmatory Security and the HK Share Charge Third Deed of Confirmatory Security, collectively, the “Security Confirmations”); (iv) a letter of authorization and confirmation from Trinseo Holdings Asia Pte. Ltd. addressed to White & Case Pte. Ltd. in connection with the registration of the (A) Singapore Third Composite Deed of Confirmatory Security and (B) HK Share Charge Third Deed of Confirmatory Security with the Accounting and Corporate Regulatory Authority of Singapore; and (v) evidence that any process agent referred to in the HK Share Charge Third Deed of Confirmatory Security and the Singapore Third Composite Deed of Confirmatory Security has accepted its appointment as agent for service of process;

 

(e)            all fees and expenses required to be paid by (or on behalf of) the Borrowers to the Administrative Agent (including the reasonable and documented fees and expenses of White & Case LLP as counsel for the Administrative Agent), the Lead Arrangers (including the reasonable and documented fees and expenses of Paul Hastings LLP, as counsel to the Lead Arrangers), 2023 Refinancing Term Loan Lender or 2023 Incremental Term Loan Lender with respect to the transactions and amendments contemplated by this Amendment on or before the Fifth Amendment Effective Date pursuant to any written agreement with the Borrowers shall have been (or shall substantially contemporaneously be) paid in full in cash;

 

(f)            no Default or Event of Default shall have occurred and be continuing;

 

5

 

 

(g)            the representations and warranties contained in Section 4 of this Amendment shall be true and correct on and as of the Fifth Amendment Effective Date and the Administrative Agent (or its counsel) shall have received a certificate dated as of the Fifth Amendment Effective Date signed by a Responsible Officer of the Lead Borrower certifying as to the same;

 

(h)            the Administrative Agent shall have received from the Lead Borrower a solvency certificate from the chief financial officer of the Lead Borrower or, if no chief financial officer has been appointed, from the Permanent Representative, in the form of Exhibit I to the Amended Credit Agreement;

 

(i)            the Administrative Agent shall have received (i) either (x) a copy of the certificate or articles of incorporation, articles of association (statuts) or equivalent organizational document, including all amendments thereto, of each Loan Party (other than the Dutch Loan Parties), certified as of a recent date by the Secretary of State of the state of its organization (where relevant) or by the Luxembourg Companies Register with respect to the Luxembourg Loan Parties or (y) confirmation from such Loan Party that there has been no change to such organizational documents since last delivered to the Administrative Agent, (ii) a certificate of the secretary, an authorized representative, assistant secretary or managing director (as applicable) of each Loan Party (other than the Dutch Loan Parties) dated the Fifth Amendment Effective Date and certifying (A) that (x) attached thereto is a true and complete copy of the certificate of incorporation (and, where applicable, certificate of change of name), by-laws, articles of association or operating, management, partnership or similar agreement of such Loan Party as in effect on the Fifth Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below or (y) there has been no change to such governing documents since last delivered to the Administrative Agent, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers, general meeting of the shareholders or other equivalent governing body of such Loan Party authorizing the execution, delivery and performance of this Amendment, the Acknowledgment and Confirmation delivered pursuant to clause (b) above and the Security Confirmations, in each case, to which it is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect (as applicable), (C) that any attached certificate or articles of incorporation, equivalent organizational document, by-laws, operating, management, partnership or similar agreement of such Loan Party has not been amended (in the case of the articles of incorporation of each such Loan Party, since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (E) below), (D) as to the incumbency (where applicable) and specimen signature of each officer or authorized signatory executing this Amendment or any other document delivered in connection herewith on behalf of such Loan Party, (E) good standing certificates, business registration certificates or registrars (or, in each case, its equivalent) for each Loan Party (other than the Dutch Loan Parties) from the jurisdiction in which it is organized (as applicable in the relevant jurisdiction except for the Luxembourg Loan Parties and Irish Guarantors), each dated a recent date prior to the Fifth Amendment Effective Date; and (F) for Luxembourg Loan Parties (x) that each such Luxembourg Loan Party is not subject to nor, as applicable, does it meet or threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), administrative dissolution without liquidation (dissolution administrative sans liquidation), reprieve from payment (sursis de paiement), general settlement with creditors, reorganization or similar laws affecting the rights of creditors generally and no application has been made or is to be made by its manager or, as far as it is aware, by any other person for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings, (y) a certificate of non-inscription of judicial decisions or of administrative dissolution without liquidation (certificat de non-inscription d’une décision judiciaire ou de dissolution administrative sans liquidation) issued by the Luxembourg Insolvency Register (Registre de l’insolvabilité) held and maintained with the Luxembourg Companies Register in relation to the Luxembourg Loan Parties dated as no earlier than one Business Day prior to the Fifth Amendment Effective Date and reflecting the situation no more than two Business Days prior to the Fifth Amendment Effective Date and (z) an excerpt from the Luxembourg Companies Register pertaining to the Luxembourg Loan Parties dated no earlier than one Business Day prior to the Fifth Amendment Effective Date;

 

6

 

 

(j)            the Administrative Agent shall have received a customary opinion from (i) Ropes & Gray LLP, as New York counsel for the Loan Parties, (ii) Loyens & Loeff N.V., as Luxembourg and Swiss counsel for the Loan Parties, (iii) NautaDutilh Avocats Luxembourg S.à r.l. (société à responsabilité limitée), as Luxembourg counsel for the Administrative Agent, (iv) William Fry LLP, as Irish counsel for the Administrative Agent, (v) Reed Smith LLP, as Singapore and Hong Kong counsel for the Loan Parties, and (vi) Stites and Harbison PLLC, as Kentucky counsel for the Loan Parties, in each case, reasonably acceptable to the Administrative Agent and addressed to the 2023 Refinancing Term Loan Lender and the 2023 Incremental Term Loan Lender and dated the Fifth Amendment Effective Date;

 

(k)            the Administrative Agent shall have received, at least two Business Days prior to the Fifth Amendment Effective Date, all documentation and other information required about the Borrowers and the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and a Beneficial Ownership Certification for any Borrower or Guarantor that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, that has been requested in writing at least 10 Business Days prior to the Fifth Amendment Effective Date;

 

(l)            the Administrative Agent shall have received a Committed Loan Notice with respect to the 2023 Refinancing Term Loans and the 2023 Incremental Term Loans; and

 

(m)            the Administrative Agent shall have received an Officer’s Certificate of the Lead Borrower certifying as to the incurrence of the 2023 Incremental Term Loans pursuant to Section 2.16(d)(iii)(B) of the Existing Credit Agreement.

 

For purposes of determining whether the conditions specified in this ‎Section 5 have been satisfied on the Fifth Amendment Effective Date, by the funding of the 2023 Refinancing Term Loans and the 2023 Incremental Term Loans, as applicable, the Administrative Agent, the 2023 Refinancing Term Loan Lender, and the 2023 Incremental Term Loan Lender shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent, the 2023 Refinancing Term Loan Lender, and the 2023 Incremental Term Loan Lender, as the case may be.

 

SECTION 6. Post-Closing Matters. Within 60 days of the Fifth Amendment Effective Date, the Administrative Agent, the 2023 Refinancing Term Loan Lender and the 2023 Incremental Term Loan Lender shall have received, in form and substance reasonably acceptable to the Administrative Agent, the items described in Section 5(b), (h) and (i), in each case as they relate to the Dutch Loan Parties, it being understood and agreed that the legal opinion referred to in Section 5(i) will be provided by NautaDutilh, as Dutch counsel for the Administrative Agent. Within 60 days of the Fifth Amendment Effective Date, the Administrative Agent (or its counsel) shall have received updated schedules to the relevant Security Confirmations listing relevant assets and contracts as in existence as of the Fifth Amendment Effective Date, in the prescribed form.

 

7

 

 

SECTION 7. Effect of Amendment.

 

(a)            Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Existing Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other provision of the Existing Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle either Borrower or any other Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document in similar or different circumstances.

 

(b)            From and after the Fifth Amendment Effective Date, (i) each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference to the “Credit Agreement” in any other Loan Document shall be deemed to include a reference to the Existing Credit Agreement as amended hereby and (ii) each reference in any Loan Document to the “Term Lenders”, “Term Loans”, “Loans”, “Term Loan Commitments” or “Commitment” shall be deemed to include the 2023 Refinancing Term Loan Lender, the 2023 Refinancing Term Loans, the 2023 Incremental Term Loan Lender, the 2023 Incremental Term Loans, the 2023 Refinancing Term Loan Commitments, and the 2023 Incremental Term Loan Commitments, as applicable.

 

(c)            From and after the date hereof, this Amendment shall constitute a “Loan Document” for all purposes of the Amended Credit Agreement and the other Loan Documents and shall be deemed to be a “Refinancing Amendment” and an “Incremental Amendment”, each as defined in the Amended Credit Agreement.

 

SECTION 8. Amendments; Severability. (a) As of the date hereof, this Amendment may not be amended nor may any provision hereof be waived except pursuant to Section 10.01 of the Amended Credit Agreement.

 

(b)            If any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby. The illegality, invalidity or unenforceability of a provision in a particular jurisdiction shall not invalidate or render illegal or unenforceable such provision in any other jurisdiction. In the event of any such illegality, invalidity or unenforceability, the parties shall negotiate in good faith with a view to agreeing on a legal, valid and enforceable replacement provision which, to the extent practicable, is in accordance with the intent and purposes of this Amendment and in its economic effect comes as close as possible to the illegal, invalid or unenforceable provision.

 

SECTION 9. New Lender Joinder.

 

(a) The 2023 Refinancing Term Loan Lender and the 2023 Incremental Term Loan Lender (collectively, the “New Lender”), as a new lender under the Credit Agreement on the Fifth Amendment Effective Date (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and to become a Lender under the Amended Credit Agreement, (ii) it has received a copy of the Credit Agreement and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Amendment, and (iii) it has, independently and without reliance upon any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment; and (b) agrees that (i) it is sophisticated with respect to the decision to participate, as a lender, in commercial loans of the type represented by the 2023 Term Loans (or the entity or entities exercising discretion in making the decision to participate in the 2023 Term Loans are sophisticated in such matters) and will, independently and without reliance on any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents and (ii) it will hereafter be bound as a Lender under the Loan Documents and will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

 

8

 

 

(b) The New Lender hereby covenants and agrees that (i) it shall not take any action or authorize, consent to or approve any amendment, restatement, waiver, modification, forbearance, additional extensions of credit, release of any loan party or any collateral, exercise or enforce any rights or privileges at law or in equity accruing to the New Lender in its capacity as a lender under the Credit Agreement without the prior written consent of Alter Domus (US) LLC (acting at the direction of the Required Lenders under and as defined in that certain Credit Agreement (as of the date hereof), dated as of September 8, 2023 (the “Super Holdco Credit Agreement”), by and among TRINSEO LUXCO S.À R.L., a private limited liability company (société à responabilité limitée), incorporated and existing under the laws of Luxembourg, having its registered office at 26, boulevard Royal, L-2449 Luxembourg, registered with the R.C.S. Luxembourg under number B153577, UnSub Holdings, the New Lender, UnSub Borrower, the guarantors party thereto from time to time, the Lenders party hereto from time to time and ALTER DOMUS (US) LLC, as administrative agent and collateral agent, in (in such capacity, the “Super Holdco Agent”)), which written consent may be delivered via email from the Super Holdco Agent’s counsel or counsel to the Required Lenders under and as defined in the Super Holdco Credit Agreement (as of the date hereof) and (ii) the 2023 Term Loans are permitted under the Credit Agreement.

 

SECTION 10. Ratification and Reaffirmation. Each Loan Party hereto hereby (a) consents to the execution, delivery and performance of this Amendment and the performance of the Existing Credit Agreement (as amended hereby) and (b) ratifies and reaffirms: (x) its Obligations in respect of the Existing Credit Agreement and each of the other Loan Documents to which it is a party (including, without limitation, the Guaranty), as such Obligations have been amended by this Amendment, and all of the covenants, duties, indebtedness and liabilities under the Amended Credit Agreement and the other Loan Documents to which it is a party and (y) the Liens and security interests created in favor of the Administrative Agent and the Lenders pursuant to each Collateral Document; which Liens shall continue to secure the Obligations (including in respect of the 2023 Refinancing Term Loans, the 2023 Incremental Term Loans and the Guaranty), in each case, on and subject to the terms and conditions set forth in the Amended Credit Agreement and the other Loan Documents.

 

SECTION 11. Governing Law; Waiver of Jury Trial. THIS AMENDMENT, THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND ANY CLAIMS, CONTROVERSIES, DISPUTES OR CAUSES OF ACTIONS (WHETHER ARISING IN CONTRACT OR TORT, IN LAW OR EQUITY OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions of Sections 10.15 and 10.16 of the Existing Credit Agreement as amended by this Amendment are incorporated herein by reference, mutatis mutandis.

 

SECTION 12. Headings. Section headings herein are included for convenience of reference only, are not part of this Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment.

 

9

 

 

SECTION 13. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or by “.pdf” or similar electronic transmission shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in this Amendment shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

[Remainder of page intentionally left blank]

 

10

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.

 

  TRINSEO MATERIALS OPERATING S.C.A., as Lead Borrower, acting by its general partner, TRINSEO HOLDING S.À R.L., itself represented by:
   
   
  By: /s/ David Stasse
    Name: David Stasse
    Title: Manager

 

 

  TRINSEO MATERIALS FINANCE, INC., as Co-Borrower
   
   
  By: /s/ David Stasse
    Name: David Stasse
    Title: Executive Vice President and Chief Financial Officer

 

 

  TRINSEO HOLDING S.À R.L., as Holdings
   
   
  By: /s/ David Stasse
    Name: David Stasse
    Title: Manager    

 

 

 

 

  GIVEN under the COMMON SEAL of
TRINSEO IRELAND HOLDINGS LIMITED and DELIVERED as a DEED
   
   
  By: /s/ Ewan Schneider
    Name: Ewan Schneider
    Title: Director
       
       
  By: /s/ Seamus McCormack
    Name: Seamus McCormack
    Title: Director

 

 

 

  DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent
   
   
  By: /s/ Philip Tancorra
    Name: Philip Tancorra
    Title: Director

 

  By: /s/ Lauren Danbury
    Name: Lauren Danbury
    Title: Vice President

 

 

 

  TRINSEO LUXCO FINANCE SPV S.À R.L,
as the 2023 Refinancing Term Loan Lender and the 2023 Incremental Term Loan Lender
   
  By: /s/ David Stasse
  Name: David Stasse
  Title: Manager

 

 

 

 

SCHEDULE I

 

2023 Incremental Term Loan Commitments

 

2023 Incremental Term Loan Lender  2023 Incremental Term Loan Commitment 
Trinseo Luxco Finance SPV S.a.r.l.  $268,041,238 
Total  $268,041,238 

 

2023 Refinancing Term Loan Commitments

 

2023 Refinancing Term Loan Lender  2023 Refinancing Term Loan Commitment 
Trinseo Luxco Finance SPV S.a.r.l.  $680,344,073 
Total  $680,344,073 

 

 

 

EXHIBIT A: Amended Credit Agreement

 

(See attached.)

 

 

 

 

EXHIBIT A to the 2023 SOFRIncremental and Refinancing Amendment:

 

Composite copy reflecting amendments made pursuant to the 2018 Refinancing Amendment, dated as of May 22, 2018, the 2021 Incremental Amendment, dated as of May 3, 2021, the 2021 Refinancing Revolver Amendment, dated as of May 3, 2021, and the 2023 SOFR Amendment, dated as of June 30, 2023 and the 2023 Incremental and Refinancing Amendment, dated as of September 8, 2023.

 

 

CREDIT AGREEMENT

 

Dated as of September 6, 2017,
as amended as of May 22, 2018,
as further amended as of May 3, 2021,
as further amended as of May 3, 2021,
as further amended as of June 30, 2023, and
as further amended as of September 8, 2023

 

among

 

TRINSEO HOLDING S.À R.L.,

as Holdings,

 

TRINSEO IRELAND HOLDINGS LIMITED,

as Intermediate Holdings,

 

TRINSEO MATERIALS OPERATING S.C.A.,

as the Lead Borrower,

 

TRINSEO MATERIALS FINANCE, INC.,

as the Co-Borrower,

 

THE GUARANTORS PARTY HERETO FROM TIME TO TIME,

 

THE LENDERS PARTY HERETO FROM TIME TO TIME

 

and

 

DEUTSCHE BANK AG NEW YORK BRANCH,

as Administrative Agent, Collateral Agent, L/C Issuer and Swing Line Lender

 

 

BARCLAYS BANK PLC,

DEUTSCHE BANK SECURITIES INC.,
CITIGROUP GLOBAL MARKETS INC.,
HSBC SECURITIES (USA) INC.,
GOLDMAN SACHS BANK USA,
THE BANK OF NOVA SCOTIA,
BNP PARIBAS SECURITIES CORP.,
MIZUHO BANK, LTD.,
MORGAN STANLEY SENIOR FUNDING, INC.

and,
SUMITOMO MITSUI BANKING CORPORATION,
as Joint Lead Arrangers and Joint Bookrunners

 

and

ANGELO, GORDON & CO., L.P. and OAKTREE CAPITAL MANAGEMENT, L.P.,

as Joint Lead Arrangers for the 2023 Term Loans

 

 

 

Table of Contents

 

Page

 

Article I Definitions and Accounting Terms 3
Section 1.01 Defined Terms 3
Section 1.02 Luxembourg Terms 6669
Section 1.03 [Reserved] 6770
Section 1.04 Other Interpretive Provisions 6770
Section 1.05 Accounting Terms 6770
Section 1.06 Rounding 6771
Section 1.07 References to Agreements, Laws, Etc. 6771
Section 1.08 Times of Day 6871
Section 1.09 Timing of Payment of Performance 6871
Section 1.10 Pro Forma Calculations 6871
Section 1.11 Currency Equivalents 7074
Section 1.12 Exchange Rate 7174
Section 1.13 Additional Alternative Currencies 7174
Section 1.14 Cashless Settlement 7175
Section 1.15 Rates 7275
Article II The Commitments and Credit Extensions 7275
Section 2.01 The Loans 7275
Section 2.02 Borrowings, Conversions and Continuations of Loans 7377
Section 2.03 Letters of Credit 7578
Section 2.04 Swing Line Loans 8387
Section 2.05 Prepayments 8690
Section 2.06 Termination or Reduction of Commitments 9195
Section 2.07 Repayment of Loans 9296
Section 2.08 Interest 9296
Section 2.09 Fees 9398
Section 2.10 Computation of Interest and Fees 94100
Section 2.11 Evidence of Indebtedness 94100
Section 2.12 Payments Generally 95101
Section 2.13 Sharing of Payments 97102
Section 2.14 Reverse Dutch Auction Repurchases 98103
Section 2.15 Open Market Purchases 99104
Section 2.16 Incremental Credit Extensions 100104
Section 2.17 Refinancing Amendments 107112
Section 2.18 Extensions of Term Loans and Revolving Credit Commitments 113119
Section 2.19 Defaulting Lenders 117123
Section 2.20 Borrower Obligations Joint and Several 119124
Article III Taxes, Increased Costs Protection and Illegality 119125
Section 3.01 Taxes 119125
Section 3.02 Illegality 123129
Section 3.03 Inability to Determine Rates 123129
Section 3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Benchmark Rate Loans 125131
Section 3.05 Funding Losses 126132
Section 3.06 Matters Applicable to All Requests for Compensation 126132
Section 3.07 Replacement of Lenders under Certain Circumstances 127133
Section 3.08 Survival 129135

 

(i)

 

 

Article IV Conditions Precedent to Credit Extensions 129135
Section 4.01 First Credit Event 129135
Section 4.02 All Credit Events 131137
Article V Representations and Warranties 132138
Section 5.01 Existence, Qualification and Power; Compliance with Laws 132138
Section 5.02 Authorization; No Contravention 132138
Section 5.03 Governmental Authorization; Other Consents 132138
Section 5.04 Binding Effect 133139
Section 5.05 Financial Statements; No Material Adverse Effect 133139
Section 5.06 Litigation 134140
Section 5.07 Ownership of Property; Liens 134140
Section 5.08 Environmental Matters 134140
Section 5.09 Taxes 135140
Section 5.10 ERISA Compliance 135141
Section 5.11 Subsidiaries; Equity Interests 135141
Section 5.12 Margin Regulations; Investment Company Act 136141
Section 5.13 Disclosure 136142
Section 5.14 Labor Matters 136142
Section 5.15 Intellectual Property; Licenses, Etc. 136142
Section 5.16 Solvency