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CREDIT AGREEMENT

Loan Agreement

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AAA Co | HEXION SPECIALTY CHEMICALS, INC

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Title: CREDIT AGREEMENT
Governing Law: New York     Date: 8/13/2009

CREDIT AGREEMENT, Parties: aaa co , hexion specialty chemicals  inc
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Exhibit 10.4

 

 

CREDIT AGREEMENT

Dated as of March 3, 2009

between

HEXION SPECIALTY CHEMICALS, INC.,

as U.S. Borrower, and

BORDEN LUXEMBOURG S. À R. L.,

as Foreign Borrower,

and

EURO V (BC) S. À R. L.,

EURO VI (BC) S. À R. L., and

AAA CO-INVEST VI (EHS-BC) S. À R. L.,

as Lenders

 

 


TABLE OF CONTENTS

 

 

 

  

 

  

Page

Article I

 

         DEFINITIONS AND ACCOUNTING TERMS

  

1

 

Section 1.01.

  

Certain Defined Terms

  

1

 

Section 1.02.

  

Computation of Time Periods

  

5

 

Section 1.03.

  

Accounting Terms

  

5

 

Section 1.04.

  

Other Interpretive Provisions

  

5

Article II

 

        AMOUNTS AND TERMS OF THE LOANS

  

5

 

Section 2.01.

  

The Loans

  

5

 

Section 2.02.

  

Making the Loans

  

5

 

Section 2.03.

  

Repayment

  

6

 

Section 2.04.

  

Evidence of Indebtedness

  

6

 

Section 2.05.

  

Interest on Loans

  

7

 

Section 2.06.

  

Prepayments of Loans

  

7

 

Section 2.07.

  

Payments and Computations

  

7

 

Section 2.08.

  

Taxes

  

8

Article III

 

        CONDITIONS TO LOANS

  

9

Article IV

 

        EVENTS OF DEFAULT

  

10

 

Section 4.01.

  

Events of Default

  

10

Article V

 

        MISCELLANEOUS

  

11

 

Section 5.01.

  

Amendments, Etc.

  

11

 

Section 5.02.

  

Notices, Etc.

  

11

 

Section 5.03.

  

No Waiver; Remedies

  

11

 

Section 5.04.

  

Costs and Expenses

  

11

 

Section 5.05.

  

Right of Set-off

  

13

 

Section 5.06.

  

Binding Effect

  

13

 

Section 5.07.

  

Assignments and Participations

  

13

 

Section 5.08.

  

Confidentiality

  

16

 

Section 5.09.

  

Governing Law

  

16

 

-i-


TABLE OF CONTENTS

(continued)

 

 

 

  

 

  

Page

 

Section 5.10.

  

Severability

  

16

 

Section 5.11.

  

Execution in Counterparts

  

16

 

Section 5.12.

  

Jurisdiction, Etc.

  

16

 

Section 5.13.

  

Waiver of Jury Trial

  

17

 

Section 5.14.

  

Survival

  

17

SCHEDULES AND EXHIBITS

 

Schedule 2.01

  

Commitments and Lenders

EXHIBIT A

  

Form of Assignment and Acceptance

EXHIBIT B

  

Form of Note

EXHIBIT C

  

Form of Notice of Borrowing

 

-ii-


CREDIT AGREEMENT, dated as of March 3, 2009 (this “ Agreement ”), among Hexion Specialty Chemicals, Inc., a New Jersey corporation (the “ U.S. Borrower ”), Borden Luxembourg S. à r. l., a Luxembourg société à responsabilité limitée (the “ Foreign Borrower ” and, together with the U.S. Borrower, the “ Borrowers ”), and Euro V (BC) S. à r. l., Euro VI (BC) S. à r. l., and AAA Co-Invest VI (EHS-BC) S. à r. l., each, a Luxembourg société à responsabilité limitée, as Lenders (together with their permitted successors and assigns, the “ Lenders ”).

PRELIMINARY STATEMENT:

WHEREAS, the Borrowers have requested, and the Lenders have agreed to provide, a term loan in the amount of $100,000,000 in favor of the Borrowers, which may be used by the Borrowers for general corporate purposes; and

WHEREAS, subject to the terms and conditions of this Agreement, the Lenders are willing to enter into this Agreement subject to the terms and conditions of this Agreement, and make the requested term loan in favor of the Borrowers.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.01. Certain Defined Terms . As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

Accounting Principles ” has the meaning specified in Section 1.03.

Adjusted LIBO Rate ” shall mean, with respect to any Loans for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next  1 / 16 of 1%) equal to (a) the LIBO Rate divided by (b) one minus the Statutory Reserves applicable to such Loans, if any.

Affiliate ” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person. For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise.

Applicable Law ” means, with respect to any Person, (i) all common law applicable to such Person and (ii) all provisions of all (A) constitutions, statutes, rules, regulations and orders of governmental bodies, domestic or foreign (including, without limitation, ERISA), applicable to such Person, (B) Governmental Approvals applicable to such Person and (C) orders, decisions, judgments and decrees of all courts (whether at law or in equity or admiralty) and arbitrators applicable to such Person.


Applicable Margin ” shall mean 2.25% per annum.

Assignment and Acceptance ” means an assignment and acceptance entered into by a Lender and an assignee of such Lender in substantially the form of Exhibit A.

Borrowers ” has the meaning specified in the recital of parties to this Agreement.

Business Day ” means a day of the year on which banks are not required or authorized by law to close in New York City.

Closing Date ” shall mean the date on which all the conditions set forth in Article III shall have been satisfied or waived and the Loans were originally made.

Commitment ” means, with respect to each Lender, the commitment of such Lender to make Loans hereunder as set forth on Schedule 2.01. The initial aggregate amount of the Lenders’ Commitment is $100,000,000.

Confidential Information ” means written information furnished to the Lenders or their Related Parties by or on behalf of the Borrowers or any of their Related Parties in connection with the transactions contemplated by or otherwise pursuant to this Agreement or any other Loan Document or information obtained by the Lenders or any of their Related Parties in the course of any review of the books or records of the Borrowers or any of their Related Parties, but does not include any such information that, to the knowledge of such recipient party, is or becomes generally available to the public through no act or omission by the Lenders or any of their Related Parties or any Person acting on their behalf or that, to the knowledge of such recipient party, is or becomes available to the Lenders from a source other than the Borrowers or any of their Related Parties or any Person acting on their behalf without a duty of confidentiality to the Borrowers or any of their Related Parties being violated.

Default ” means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

Default Rate ” shall mean the interest rate otherwise applicable to the applicable Loan plus 2.0% per annum, to the fullest extent permitted by applicable law.

Dollars ” and the symbol “ $ ” mean lawful currency of the United States of America.

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

Events of Default ” has the meaning specified in Section 4.01.

Flow Through Entity ” means an entity that is treated as a partnership not taxable as a corporation, a grantor trust or a disregarded entity for U.S. federal income tax purposes subject to treatment on a comparable basis for purposes of state, local or foreign tax law.

GAAP ” means generally accepted accounting principles in effect from time to time in the United States.

 

2


Governmental Approval ” means any authorization, consent, approval, license or exemption of, registration or filing with, or report or notice to, any governmental body.

Indemnified Party ” has the meaning specified in Section 5.04(b).

Interest Payment Date ” means the last day of each Interest Period.

Interest Period ” shall mean as to any Loans, the period commencing on the date of such Loans or on the last day of the immediately preceding Interest Period applicable to such Loans, as applicable, and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is three months thereafter; provided , that if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.

Lender Tax ” means (i) any Tax imposed on the net income of a Lender (or its equityholder in the case of a Flow Through Entity), and franchise taxes imposed on any such Person in lieu of net income taxes, by the jurisdiction under the laws of which such Person is organized, or, any political subdivision thereof or (ii) any Tax imposed by reason of any connection between the jurisdiction imposing such Tax and such Lender (or its equityholder in the case of a Flow Through Entity), or any Affiliate of such Lender, other than a connection arising from such Lender (or its equityholder in the case of a Flow Through Entity) having executed, delivered, performed its obligations under, or received payment under or enforced, this Agreement.

Lenders ” has the meaning specified in the recital of parties to this Agreement.

LIBO Rate ” shall mean, with respect to the Loans for any Interest Period, the rate per annum determined by the Lenders at approximately 11:00 a.m., London time, on the date that is two Business Days prior to the commencement of such Interest Period by reference to the British Bankers’ Association Interest Settlement Rates for deposits in Dollars (as set forth by any service selected by the Lenders that has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates) with a three-month maturity; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “ LIBO Rate ” shall be the interest rate per annum determined by the Lenders to be the average of the rates per annum at which deposits in Dollars are offered for three-month maturity in the London interbank market in London, England, as selected by the Lenders at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest Period.

Loans ” means the term loans made by the Lenders to the Borrowers pursuant to Section 2.01 of this Agreement.

Loan Documents ” means, collectively, this Agreement and the Notes, if any.

Maturity Date ” means December 31, 2011.

 

3


Note ” means a promissory note issued at the request of the Lenders pursuant to Section 2.04(d), in substantially the form of Exhibit B.

Notice of Borrowing ” has the meaning specified in Section 2.02.

Other Taxes ” has the meaning specified in Section 2.08(b).

Person ” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.

Register ” has the meaning specified in Section 2.04(b).

Related Parties ” means, with respect to any Person, such Person’s Affiliates and any respective directors, officers, controlling persons, employees, agents, advisors and representatives of such Person and such Person’s Affiliates.

Required Lenders ” means the Lender or Lenders which, at any time, are owed more than 50% of the then aggregate unpaid principal amount of Loans.

Second Secured Notes Indenture ” means the Indenture dated as of November 3, 2006, as amended, supplemented or otherwise modified from time to time, among Hexion U.S. Finance Corp. and Hexion Nova Scotia Finance, ULC, as Issuers, the Guarantors named therein (including the U.S. Borrower), and Wilmington Trust Company, as Trustee.

Senior Secured Credit Agreement ” means the Second Amended and Restated Credit Agreement dated as of November 3, 2006, as further amended, supplemented or otherwise modified from time to time, among Hexion LLC, as Holdings, the U.S. Borrower, as U.S. Borrower, Hexion Specialty Chemicals Canada, Inc., as Canadian Borrower, Hexion Specialty Chemicals B.V., as Dutch Borrower, and Hexion Specialty Chemicals UK Limited and Borden Chemical UK Limited, as U.K. Borrowers, the Lenders from time to time parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders thereunder, and Credit Suisse, as Syndication Agent.

Statutory Reserves ” shall mean, with respect to any currency, the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other requirements) established by any central bank, monetary authority, the Board of Governors of the Federal Reserve System of the United States of America, the Financial Services Authority, the European Central Bank or other Governmental Authority for any category of deposits or liabilities customarily used to fund loans in such currency, expressed in the case of each such requirement as a decimal. Such reserve percentages shall include those imposed pursuant to Regulation D of the Board. Loans shall be deemed to be subject to such reserve, liquid asset or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to the Lender under any applicable law, rule or regulation, including Regulation D. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve, liquid asset or similar requirement.

 

4


Tax ” means any levy, impost, deduction, charge or withholding, and all liabilities with respect thereto, imposed by any governmental authority upon a Person or upon its assets, revenues, income, capital or profits.

Voting Stock ” means capital stock issued by a corporation, or equivalent equity interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right to vote has been suspended by the happening of such a contingency.

SECTION 1.02. Computation of Time Periods . In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.

SECTION 1.03. Accounting Terms . All accounting terms not specifically defined herein shall be construed in accordance with GAAP (the “ Accounting Principles ”).

SECTION 1.04. Other Interpretive Provisions . As used herein, except as otherwise specified herein, (i) references to any Person include its successors and assigns and, in the case of any governmental authority, any Person succeeding to its functions and capacities; (ii) references to any Applicable Law include amendments, supplements and successors thereto; (iii) references to specific sections, articles, annexes, schedules and exhibits are to this Agreement; (iv) words importing any gender include the other gender; (v) the singular includes the plural and the plural includes the singular; (vi) the words “including”, “include” and “includes” shall be deemed to be followed by the words “without limitation”; (vii) captions and headings are for ease of reference only and shall not affect the construction hereof; and (viii) references to any time of day shall be to New York City time unless otherwise specified.

ARTICLE II

AMOUNTS AND TERMS OF THE LOANS

SECTION 2.01. The Loans .

(a) Each Lender having a Commitment severally agrees to make a Loan or Loans on the Closing Date to the Borrowers in Dollars in an initial aggregate principal amount equal to such Commitment.

(b) The Commitment shall automatically terminate at 5:00 P.M. on the Closing Date.

(c) The Loans (i) shall be made on the Closing Date, (ii) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid, may not be reborrowed, (iii) shall not on the Closing Date exceed for any such Lender the Commitment of such Lender and (iv) shall not on the Closing Date exceed in the aggregate the total of all Commitments. On the Maturity Date, all then unpaid Loans shall be repaid in full.

SECTION 2.02. Making the Loans . Each Borrower requesting Loans shall give notice to the Lenders not later than 2:00 P.M. on the Business Day prior to the borrowing of the Loans. Each notice of a borrowing shall be made by telephone, confirmed promptly by a notice in substantially the form of Exhibit C (a “ Notice of Borrowing ”) delivered in writing or via telecopier, specifying therein

 

5


(i) the requested date of the borrowing (which shall be the Closing Date) and (ii) the aggregate amount of such borrowing. Upon fulfillment of the applicable conditions set forth in Article III, the Lenders shall, before 2:00 P.M. on the Closing Date, make the Loans available to the requesting Borrower in an account of such Borrower previously specified to the Lenders.

SECTION 2.03. Repayment of the Loans .

(a) The Borrowers shall repay to the Lenders (or as directed by the Lenders) on the Maturity Date the then-unpaid Loans in Dollars.

(b) On each date that is five Business Days prior to the date on which the U.S. Borrower has determined to deliver the certificate of compliance required by Section 5.04(c) of the Senior Secured Credit Agreement which certificate would, but for the exercise of the U.S. Borrower’s rights under Section 7.03 of the Senior Secured Credit Agreement, disclose a breach of the financial maintenance covenant contained in the Senior Secured Credit Agreement, each Borrower shall repay its pro rata share of a portion of the Loans outstanding on such date to the Lenders (or as directed by the Lenders) in an amount that would be sufficient (or if such amounts exceed the amount of the Loans, the entire amount of the Loans), upon investment by the Lenders of such amount in the equity capital of the U.S. Borrower’s immediate parent pursuant to Section 7.03 of the Senior Secured Credit Agreement, to cure such breach.

Notwithstanding anything to the contrary contained herein, as of any date, no repayment shall be required so long as the principal amount of the outstanding Loans together with any other debt securities and bank indebtedness issued by the U.S. Borrower or any of its subsidiaries (other than indebtedness issued by a foreign subsidiary that is not a Foreign Subsidiary Loan Party (as defined in the Senior Secured Credit Agreement) that is denominated in currencies other than the Dollar in the form of bank financings or notes offered or arranged outside the United States and not placed with investors that regularly invest in the U.S. financial markets) with a final maturity within 91 days of such date is greater than or equal to $200,000,000.

SECTION 2.04. Evidence of Indebtedness .

(a) The Lenders shall maintain in accordance with customary practice an account or accounts evidencing the indebtedness to the Lenders resulting from the Loans made by the Lenders, including the amounts of principal and interest payable and paid to the Lenders from time to time under this Agreement.

(b) The Lenders shall maintain in a register (the “ Register ”) accounts in which they will record (i) the amount of each Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to the Lenders hereunder and (iii) the amount of any sum received by the Lenders hereunder from the Borrowers and each Lender’s share thereof.

 

6


(c) The entries made in the accounts maintained pursuant to subsections (a) and (b) above shall, to the extent permitted by Applicable Law, be prima facie evidence of the existence and amounts of the obligations therein recorded; provided, however , that the failure of the Lenders to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrowers to repay the Loans made to the Borrowers and interest thereon in accordance with the terms hereof.

(d) Each Lender may request that the Loans made by it be evidenced by one or more Notes. In such event, the Borrowers shall prepare, execute and deliver to such Lender one or more Notes payable to the order of such Lender (or, if requested by such Lender, to such Lender and its permitted assignees). Thereafter, the Loans evidenced by Notes and interest thereon shall at all times (including after assignment pursuant to Section 5.07) be represented by one or more Notes in such form payable to the order of the payee named therein.

SECTION 2.05. Interest on Loans .

(a) Subject to Section 2.05(b), interest shall accrue on the unpaid principal amount of each Loan for each day following the last Interest Payment Date in respect of such Loan at a fluctuating rate per annum equal to the Adjusted LIBO Rate plus the Applicable Margin. All accrued interest on the Loans shall be paid in arrears on each Interest Payment Date.

(b) Each Borrower agrees to pay interest on past due amounts under this Agreement at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable law. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

SECTION 2.06. Prepayments of Loans . Each Borrower may, upon same day notice given not later than 2:00 P.M. to the Lenders stating the proposed date and aggregate principal amount of the prepayment (and, if such notice is given, such Borrower shall), prepay such aggregate principal amount of the Loans made to such Borrower in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid.

SECTION 2.07. Payments and Computations .

(a) Each Borrower shall make each payment to be made by it hereunder by depositing same day funds in the account designed by the Lenders in an amount equal to each payment due hereunder no later than 5:00 P.M. on the day when due in Dollars, and the Lenders shall set-off and apply any and all deposits held in such account against such amounts due and payable hereunder.

(b) All computations of interest shall be made by the Lenders on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest is payable.

(c) Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be deemed due, and shall be made, on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest.

 

7


SECTION 2.08. Taxes .

(a) Any and all payments by eac


 
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