Exhibit 4.5
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of September 2, 2022, among Valley Proteins, LLC, Valley Proteins (DE), LLC and DarPro Storage Solutions LLC (each a “Guaranteeing Subsidiary,” and collectively, the “Guaranteeing Subsidiaries”), each a subsidiary of Darling Ingredients Inc., a Delaware corporation (the “Company”), the Company, and Regions Bank, as trustee under the Indenture referred to herein (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company and the Guarantors (as defined in the Indenture referred to below) have heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of April 3, 2019, providing for the issuance of an unlimited aggregate principal amount of 5.25% Senior Notes due 2027 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Guarantor. Each Guaranteeing Subsidiary hereby agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors, including Article 10 thereof.
3. Releases. The Note Guarantee of each Guaranteeing Subsidiary shall be unconditionally released and discharged as provided in Section 10.06 of the Indenture.
4. No Recourse Against Others. No past, present or future director, officer, employee, incorporator or stockholder of the Company or the Guarantors (including the Guaranteeing Subsidiaries) shall have any liability for any obligations of the Company or the Guarantors (including the Guaranteeing Subsidiaries) under the Notes, any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
5. Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
6. Waiver of Jury Trial. EACH OF THE GUARANTEEING SUBSIDIARIES AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
7. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterparty by facsimile or other electronic means (including “.pdf” and “.tif” format) shall constitute delivery of an executed original. Signatures of the parties hereto transmitted by facsimile, PDF or other electronic means shall be deemed to be their original signatures for all purposes. The words “execution,” “signed,” “signature,” “delivery” and words of like import in or relating to this Supplemental Indenture or any document to be signed in connection with this Supplemental Indenture shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, 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, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
8. Headings. The headings of the Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
9. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by each Guaranteeing Subsidiary.
10. Benefits Acknowledged. Each Guaranteeing Subsidiary’s Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to this Note Guarantee are knowingly made in contemplation of such benefits.
11. Successors. All agreements of each Guaranteeing Subsidiary in this Supplemental Indenture shall bind its successors, except as otherwise provided in Section 10.06 of the Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
| | | | | |
| DARLING INGREDIENTS INC. |
| By |
| By: | /s/ Brad Phillips |
| Name: Brad Phillips |
| Title: Executive Vice President & Chief Financial Officer |
| | | | | |
| VALLEY PROTEINS, LLC |
| By |
| By: | / /s/ Brad Phillips |
| Name: Brad Phillips |
| Title: Executive Vice President & Chief Financial Officer |
| | | | | |
| VALLEY PROTEINS (DE), LLC |
|
| By: Valley Proteins, LLC, its sole member |
|
| By: | / /s/ Brad Phillips |
| Name: Brad Phillips |
| Title: Executive Vice President & Chief Financial Officer |
| | | | | |
| DARPRO STORAGE SOLUTIONS LLC |
|
| B By: Darling Ingredients Inc., its sole member |
| By |
| By: | /s/ /s/ Martijn van Steenpaal |
| Name: Martijn van Steenpaal |
| Title: Senior Vice President and Treasurer |
| | | | | |
| REGIONS BANK, as Trustee |
| By |
| By: | / /s/ R. Douglas Milner |
| Name: R. Douglas Milner |
| Title: Senior Vice President |
[Signature Page to First Supplemental Indenture]
