SECOND SUPPLEMENTAL INDENTURE
Exhibit 4.1
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of January 14, 2013, among Hexion U.S. Finance Corp., a Delaware corporation, and Hexion Nova Scotia Finance, ULC, a Nova Scotia unlimited liability company (the “Issuers”), Momentive Specialty Chemicals Inc., a New Jersey corporation (the “Parent Guarantor”), the Subsidiary Guarantors listed on the signature pages hereto (the “Subsidiary Guarantors”) and Wilmington Trust, National Association, as successor by merger to Wilmington Trust FSB, as trustee under the indenture referred to below (the “Trustee”).
W I T N E S S E T H :
WHEREAS Hexion Finance Escrow LLC, a Delaware limited liability company, and Hexion Escrow Corporation, a Delaware corporation, have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified through the date hereof, the “Indenture”), dated as of January 29, 2010, providing for the issuance of the Issuers’ 8.875% Senior Secured Notes due 2018 (the “Notes”), initially in the aggregate principal amount of $1,000,000,000 (the “Original Notes”);
WHEREAS on the date hereof the Issuers intend to issue an aggregate principal amount of $200,000,000 of Notes (the “New Notes”), which shall be Additional Notes under the Indenture;
WHEREAS the issuance and sale of the New Notes has been authorized by resolutions adopted by the Board of Directors of the Parent Guarantor;
WHEREAS the Original Notes and the New Notes will be treated as a single series of Notes for all purposes of the Indenture (as supplemented by this Supplemental Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase);
WHEREAS the Incurrence of the Indebtedness represented by the New Notes is permitted as of the date hereof by Sections 4.03 and 4.12 of the Indenture and the New Notes will be issued in compliance with the other applicable provisions of the Indenture;
WHEREAS pursuant to Sections 2.01 and 9.01(ix) of the Indenture, the Trustee, the Issuers, the Parent Guarantor and the Subsidiary Guarantors are authorized to execute and deliver this Supplemental Indenture to provide for the issuance of the New Notes;
WHEREAS the Issuers have complied with all conditions precedent provided for in the Indenture relating to this Supplemental Indenture; and
WHEREAS the Issuers have requested that the Trustee 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 Issuers, the Parent Guarantor, the Subsidiary Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
SECTION 1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
SECTION 2. Terms of New Notes. The terms of the New Notes shall be identical to the Initial Notes issued on the Issued Date other than with respect to the following:
| (a) | The aggregate principal amount of New Notes which may be authenticated and delivered under the Indenture shall be $200,000,000. |
| (b) | The issue price of the New Notes shall be 100% of the aggregate principal amount of the New Notes. |
| (c) | The issuance date of the New Notes shall be the date of this Supplemental Indenture. |
| (d) | Interest on the New Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from August 1, 2012. |
| (e) | The New Notes shall be issuable in whole or in part in the form of one or more Global Notes. The depositary for such Global Notes shall be The Depository Trust Company. |
| (f) | The New Notes shall have the other terms set forth in the form of global note attached hereto as Exhibit A. |
| (g) | The New Notes shall be considered Additional Notes issued pursuant to Section 2.01 of the Indenture. |
| (h) | The Registration Rights Agreement with respect to the New Notes shall refer to the Registration Rights Agreement, dated January 14, 2013, among the Issuers, the Parent Guarantor, the Subsidiary Guarantors and Credit Suisse AG, Cayman Islands Branch. |
SECTION 3. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 5. Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
SECTION 6. 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.
SECTION 7. Effect of Headings. The Section headings herein are for convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed as of the date first written above.
| HEXION U.S. FINANCE CORP. | ||
| By: |
/s/ Xxxxx X. Xxxxxx | |
| Name: |
Xxxxx X. Xxxxxx | |
| Title: |
Vice President and Secretary | |
| HEXION NOVA SCOTIA FINANCE, ULC | ||
| By: |
/s/ Xxxxxx X. Xxxxxx | |
| Name: |
Xxxxxx X. Xxxxxx | |
| Title: |
Vice President and Treasurer | |
| By: |
/s/ Xxxxx X. Xxxxxx | |
| Name: |
Xxxxx X. Xxxxxx | |
| Title: |
Vice President and Secretary | |
| XXXXXX CHEMICAL FOUNDRY, LLC | ||
| By: |
/s/ Xxxxx X. Xxxxxx | |
| Name: |
Xxxxx X. Xxxxxx | |
| Title: |
Vice President and Secretary | |
| MOMENTIVE INTERNATIONAL INC. | ||
| By: |
/s/ Xxxxx X. Xxxxxx | |
| Name: |
Xxxxx X. Xxxxxx | |
| Title: |
Vice President and Secretary | |
| MOMENTIVE SPECIALTY CHEMICALS INVESTMENTS INC. | ||
| By: |
/s/ Xxxxx X. Xxxxxx | |
| Name: |
Xxxxx X. Xxxxxx | |
| Title: |
Vice President and Secretary | |
| MOMENTIVE CI HOLDING COMPANY (CHINA) LLC | ||
| By: |
/s/ Xxxxx X. Xxxxxx | |
| Name: |
Xxxxx X. Xxxxxx | |
| Title: |
Vice President and Secretary | |
| HSC CAPITAL CORPORATION | ||
| By: |
/s/ Xxxxx X. Xxxxxx | |
| Name: |
Xxxxx X. Xxxxxx | |
| Title: |
Vice President and Secretary | |
| XXXXXX INTERNATIONAL INC. | ||
| By: |
/s/ Xxxxx X. Xxxxxx | |
| Name: |
Xxxxx X. Xxxxxx | |
| Title: |
Vice President and Secretary | |
| OILFIELD TECHNOLOGY GROUP, INC. | ||
| By: |
/s/ Xxxxx X. Xxxxxx | |
| Name: |
Xxxxx X. Xxxxxx | |
| Title: |
Vice President and Secretary | |
| NL COOP HOLDINGS LLC | ||
| By: |
/s/ Xxxxx X. Xxxxxx | |
| Name: |
Xxxxx X. Xxxxxx | |
| Title: |
Vice President and Secretary | |
| WILMINGTON TRUST, NATIONAL ASSOCIATION, as successor by merger to Wilmington Trust FSB, as Trustee | ||
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxx | |
| Title: | Vice President | |
Exhibit A
FORM OF GLOBAL NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUERS THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO THE ISSUERS, (II) WITHIN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
ISSUERS THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (IV) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (V) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (VI) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
HEXION U.S. FINANCE CORP.
HEXION NOVA SCOTIA FINANCE, ULC
8.875% Senior Secured Notes due 2018
144A CUSIP No. [ ]
ISIN No. [ ]
| No. [ ] | $200,000,000 |
HEXION U.S. FINANCE CORP. and HEXION NOVA SCOTIA FINANCE, ULC jointly and severally, promise to pay to Cede & Co., or its registered assigns, the principal sum of TWO HUNDRED MILLION Dollars ($200,000,000) on February 1, 2018.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
Additional provisions of this Note are set forth on the other side of this Note.
Dated:
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Issuers have caused this instrument to be duly executed.
Dated:
| HEXION U.S. FINANCE CORP. | ||
| by |
||
| Name: | ||
| Title: | ||
| HEXION NOVA SCOTIA FINANCE, ULC | ||
| by | ||
| Name: | ||
| Title: | ||
| TRUSTEE’S CERTIFICATE OF AUTHENTICATION | ||
| Wilmington Trust, National Association, as successor by merger to Wilmington Trust FSB | ||
| as Trustee, certifies that this is one of | ||
| By: | ||
| Authorized Signatory | ||
| Date: | ||
8.875% Senior Secured Notes Due 2018
1. Interest
Hexion U.S. Finance Corp. and Hexion Nova Scotia Finance, ULC (such Persons, and their respective successors and assigns under the Indenture hereinafter referred to, being herein called the “Issuers”), jointly and severally, promise to pay interest on the principal amount of this Note at a rate per annum of 8.875%; provided, however, that if a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest will accrue on this Note at a rate of 0.25% per annum (increasing by an additional 0.25% per annum after each consecutive 90-day period that occurs after the date on which such Registration Default occurs up to a maximum additional interest rate of 1.00%) from and including the date on which any such Registration Default shall occur to but excluding the earlier of (x) the date on which all Registration Defaults have been cured and (y) the date which is two years from January 14, 2013. The Issuers will pay interest semiannually in arrears to the holders of record of the Notes on February 1 and August 1 of each year, commencing February 1, 2013. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from August 1, 2012. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Issuers will pay interest on overdue principal at the rate borne by this Note plus 1.0% per annum, and it will pay interest on overdue installments of interest at the same rate to the extent lawful.
2. Method of Payment
The Issuers will pay interest on the Notes (except defaulted interest) to the Persons who are registered holders of Notes at the close of business on the January 15 or July 15 next preceding the interest payment date even if Notes are canceled after the record date and on or before the interest payment date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuers will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Issuers will make all payments in respect of a certificated Note (including principal, premium and interest) by mailing a check to the registered address of each Holder thereof; provided, however, that payments on a certificated Note will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, Wilmington Trust, National Association (as successor by merger to Wilmington Trust FSB) (the “Trustee”), will act as Paying Agent and Registrar. The Issuers may appoint and change any Paying Agent, Registrar or co-registrar without notice. Holdings or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Issuers issued the Notes under an Indenture dated as of January 29, 2010 (as supplemented to the date hereof, the “Indenture”), among Hexion Finance Escrow LLC and Hexion Escrow Corporation and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) (the “Act”). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Noteholders are referred to the Indenture and the Act for a statement of those terms.
The Notes consist of: $1,000,000,000 aggregate principal amount of 8.875% Senior Secured Notes Due 2018 issued on January 29, 2010, $200,000,000 aggregate principal amount of 8.875% Senior Secured Notes Due 2018 issued on January 14, 2013 as Additional Notes under the Indenture and represented by this Note and any other Additional Notes that may be issued after the Issue Date. The Indenture contains covenants that, among other things, limit the ability of Holdings and its Restricted Subsidiaries to incur additional indebtedness; pay dividends or distributions on, or redeem or repurchase capital stock; make investments; engage in transactions with affiliates; create liens on assets to secure indebtedness; transfer or sell assets; guarantee indebtedness; restrict dividends or other payments of subsidiaries; consolidate, merge or transfer all or substantially all of its assets; and engage in sale/leaseback transactions. These covenants are subject to important exceptions and qualifications contained in the Indenture.
5. Optional Redemption
Except as set forth below, the Issuers shall not be entitled to redeem the Notes.
On and after February 1, 2014, the Issuers shall be entitled at their option on one or more occasions to redeem all or a portion of the Notes upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed in percentages of principal amount on the redemption date), plus accrued and unpaid interest and additional interest, if any, to the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), if redeemed during the 12-month period commencing on February 1st of the years set forth below:
| Period |
Redemption Price |
|||
| 2014 |
104.438 | % | ||
| 2015 |
102.958 | % | ||
| 2016 |
101.479 | % | ||
| 2017 and thereafter |
100.000 | % | ||
In addition, prior to February 1, 2014 the Issuers may redeem the Notes at their option, in whole at any time or in part from time to time, upon not less than 30 nor more than 60 days’ prior notice mailed by first-class mail to each Holder’s registered address, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and additional interest, if any, to the applicable redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date).
Notwithstanding the foregoing, prior to February 1, 2013, the Issuers shall be entitled at their option on one or more occasions to redeem upon not less than 30 nor more than 60 days’ notice, Notes (which includes Additional Notes) in an aggregate principal amount not to exceed 35% of the original aggregate principal amount of the Notes (which includes Additional Notes) originally issued at a redemption price of 108.875% of the principal amount thereof, plus accrued and unpaid interest to the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), with the net cash proceeds from one or more Equity Offerings; provided, however, that (1) at least 65% of such aggregate principal amount of Notes (which includes Additional Notes) remains outstanding immediately after the occurrence of each such redemption; and (2) each such redemption occurs within 90 days after the consummation of the related Equity Offering.
Notwithstanding the foregoing, the Issuers may at any time and from time to time purchase Notes in the open market or otherwise.
Notice of any redemption upon any Equity Offering may be given prior to the completion thereof, and any such redemption or notice may, at Holding’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of the related Equity Offering.
Redemption for Changes in Withholding Taxes.
The Issuers may redeem all the Notes at their option, at any time as a whole but not in part, upon not less than 30 nor more than 60 days’ notice, at 100% of the principal amount thereof, plus accrued and unpaid interest (if any) to the date of redemption (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), in the event the Issuers have become or would become obligated to pay, on the next date on which any amount would be payable with respect to such Notes, any Additional Amounts with respect to the Notes as a result of:
(1) a change in or an amendment to the laws (including any regulations promulgated thereunder) of Canada (or any political subdivision or taxing authority thereof or therein); or
(2) any change in or amendment to any official position regarding the application or interpretation of such laws or regulations,
which change or amendment is announced or becomes effective on or after the Issue Date and the Issuers cannot avoid such obligation by taking reasonable measures available to the Issuers.
Prior to publishing or mailing notice of redemption of any Notes as described above, the Issuers shall deliver to the Trustee an Officers’ Certificate to the effect that the Issuers cannot avoid their obligation to pay Additional Amounts with respect to such Notes by taking reasonable measures available to the Issuers. The Issuers shall also deliver an opinion of independent legal counsel of recognized standing stating that the Issuers would be obligated to pay Additional Amounts with respect to the Notes as a result of a change in tax laws or regulations or the application or interpretation of such laws or regulations.
6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at his registered address. Notes in denominations larger than $1,000 principal amount may be redeemed in part but only in whole multiples of $1,000. If money sufficient to pay the redemption price of and accrued interest on all Notes (or portions thereof) to be redeemed on the redemption date is deposited with the Paying Agent on or before the redemption date and certain other conditions are satisfied, on and after such date interest ceases to accrue on the Notes (or such portions thereof) called for redemption.
7. Put Provisions
The occurrence of any Change of Control will constitute an Event of Default under the Indenture unless the Issuers (i)(A) make an offer within 30 days following such Change of Control to all holders of the Notes to purchase all the Notes properly tendered (a “Change of Control Offer”) at a purchase price (the “Change of Control Purchase Price”) equal to 101% of the principal amount thereof, plus accrued and unpaid interest (if any) to the date of repurchase (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date); and (B) purchase all the Notes properly tendered in accordance with the Change of Control Offer or (ii) exercise their right, within 30 days following such Change of Control, to redeem all the Notes as described under Paragraph 5 of this Note.
8. Guarantee
The payment by the Issuers of the principal of, and premium and interest on, the Notes is fully and unconditionally guaranteed on a joint and several basis by each of the Guarantors to the extent set forth in the Indenture.
9. Security
The Notes will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture and the Security Documents, such security interest to be secured by a lien in the Collateral that is junior in priority to liens securing First-Priority Lien Obligations. The Trustee and the Collateral Agent, as the case may be, hold the Collateral in trust for the benefit of the Trustee and the Holders, in each case pursuant to the Security Documents, the New Intercreditor Agreement and the Existing Intercreditor Agreement. Each Holder, by accepting this Note, consents and agrees to the terms of the Security Documents (including the provisions providing for the foreclosure and release of Collateral), the New Intercreditor Agreement and the Existing Intercreditor Agreement as the same may be in effect or may be amended from time to
time in accordance with their terms and the Indenture and authorizes and directs the Collateral Agent to enter into the Security Documents, the New Intercreditor Agreement and the Existing Intercreditor Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith.
10. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of $2,000 principal amount and integral whole multiples of $1,000, provided that Notes may be issued in denominations of less than $1,000 solely to accommodate book-entry positions that have been created by DTC in denominations of less than $1,000. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) or any Notes for a period of 15 days before a selection of Notes to be redeemed or 15 days before an interest payment date.
11. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Issuers at their request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Issuers and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions set forth in the Indenture, the Issuers at any time shall be entitled to terminate some or all of their and the Guarantors’ obligations under the Notes and the Indenture if the Issuers deposit with the Trustee money or, in certain cases, U.S. Government Obligations for the payment of principal and interest on the Notes to redemption or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (a) the Indenture, the Security Documents, the New Intercreditor Agreement, the Existing Intercreditor Agreement and the Notes may be amended with the written consent of the Holders of at least a majority in principal amount outstanding of the Notes voting as a single class (which consents may be obtained in connection with a tender offer or exchange offer for the Notes) and (b) any default or noncompliance with any provision may be waived with the written consent of the Holders of a majority in principal amount outstanding of the Notes voting as a single class (which consents may be obtained in connection with a tender offer or exchange offer for the Notes). Subject to certain exceptions set forth in the Indenture, without the consent of any Noteholder, the Issuers,
the Guarantors and the Trustee shall be entitled to amend the Indenture, the Security Documents, the New Intercreditor Agreement, the Existing Intercreditor Agreement or the Notes to cure any ambiguity, omission, defect, mistake or inconsistency, or to comply with Article 5 of the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add guarantees with respect to the Notes, including Guarantees, or to secure the Notes, or to add additional assets as Collateral, or to release Collateral when permitted or required under the Indenture or the Security Documents, or to add additional covenants or surrender rights and powers conferred on the Issuers or the Guarantors, or to comply with any requirement of the SEC in connection with qualifying the Indenture under the Act, to make certain changes to the Indenture to provide for the issuance of Additional Notes or to make any change that does not adversely affect the rights of any Noteholder, to conform the text of the Indenture, the Notes, the Security Documents, the New Intercreditor Agreement or the Existing Intercreditor Agreement, to any provision of the “Description of Notes” in the Offering Circular to the extent that such provision in the “Description of Notes” was intended by the Issuers to be a verbatim recitation of a provision of the Indenture, the Notes, the Security Documents, the New Intercreditor Agreement or the Existing Intercreditor Agreement, or to make amendments to provisions of the Indenture relating to the transfer and legending of the Notes.
15. Defaults and Remedies
Under the Indenture, Events of Default include (a) default for 30 days in payment of interest on the Notes; (b) default in payment of principal on the Notes at maturity, upon redemption pursuant to Paragraph 5 of the Notes, upon acceleration or otherwise, or the failure by the Issuers to redeem or purchase Notes when required; (c) failure by the Issuers or certain Subsidiaries to comply with other agreements in the Indenture or the Notes, in certain cases subject to notice and lapse of time; (d) certain accelerations (including failure to pay within any grace period after final maturity) of other Indebtedness of the Issuers if the amount accelerated (or so unpaid) exceeds $20.0 million; (e) certain events of bankruptcy or insolvency with respect to the Issuers, the Guarantors and the Significant Subsidiaries; (f) certain judgments or decrees for the payment of money in excess of $20.0 million; (g) certain defaults with respect to Guarantees; and (h) certain defaults relating to the Collateral under the Security Documents. If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Notes (or, in certain cases of a series of Notes) may declare all such Notes to be due and payable immediately, subject to certain conditions set forth in the Indenture. Certain events of bankruptcy or insolvency are Events of Default which will result in the Notes being due and payable immediately upon the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity or security reasonably satisfactory to it. Subject to certain limitations, Holders of a majority in principal amount of the Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Noteholders notice of any continuing Default (except a Default in payment of principal or interest) if it determines that withholding notice is in the interest of the Holders.
16. Trustee Dealings with the Issuers
Subject to certain limitations imposed by the Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Issuers or its Affiliates and may otherwise deal with the Issuers or its Affiliates with the same rights it would have if it were not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Issuers or the Trustee shall not have any liability for any obligations of the Issuers under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation; provided, however, the foregoing will not affect or limit any liability of any Guarantor under the Indenture or its Guarantee. By accepting a Note, each Noteholder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
18. Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Note.
19. Abbreviations
Customary abbreviations may be used in the name of a Noteholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Issuers have caused CUSIP numbers to be printed on the Notes and have directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Noteholders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
21. Holders’ Compliance with Registration Rights Agreement
Each Holder of a Note, by acceptance hereof, acknowledges and agrees to the provisions of the Registration Rights Agreement, including the obligations of the Holders with respect to a registration and the indemnification of the Issuers to the extent provided therein.
22. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Issuers will furnish to any Noteholder upon written request and without charge to the Noteholder a copy of the Indenture which has in it the text of this Note in larger type. Requests may be made to:
Momentive Specialty Chemicals Inc.
000 Xxxx Xxxxx Xx.
Xxxxxxxx, XX 00000
Attention: General Counsel
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuers. The agent may substitute another to act for him.
| Date: | Your Signature: | |||||
Sign exactly as your name appears on the other side of this Note.
In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144(b) under the Securities Act after the later of the date of original issuance of such Notes and the last date, if any, on which such Notes were owned by the Issuers or any Affiliate of the Issuers, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
| ¨ | to the Issuers; or |
| (1) ¨ | pursuant to an effective registration statement under the Securities Act of 1933; or |
| (2) ¨ | inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or |
| (3) ¨ | outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or |
| (4) ¨ | pursuant to the exemption from registration provided by Rule 144 under the Securities Act of 1933; or |
| (5) ¨ | to an institutional “accredited investor” (as defined in Rule 501(a)(1),(2),(3) or (7) under the Securities Act of 1933) that has furnished to the Trustee a signed letter containing certain representations and agreements. |
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered holder thereof; provided, however, that if box (3), (4) or (5) is checked, the Trustee shall be entitled to require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Issuers has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, such as the exemption provided by Rule 144 under such Act.
| Signature |
Signature Guarantee:
| Signature must be guaranteed | Signature |
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
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TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuers as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Dated: |
| |||
| Notice: To be executed by an executive officer | ||||
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
| Date of Exchange |
Amount of decrease in Principal amount of this Global Note |
Amount of increase in Principal amount of this Global Note |
Principal amount of this Global Note following such decrease or increase |
Signature of authorized Notes Custodian |
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
¨
If you want to elect to have only part of this Note purchased by the Issuers pursuant to Section 4.06 or 4.08 of the Indenture, state the amount in principal amount: $
| Dated: | Your Signature: | |||||||
| (Sign exactly as your name appears on the other side of this Note.) |
| Signature Guarantee: | ||
| (Signature must be guaranteed) |
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
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