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