JOINDER AND SUPPLEMENT to INTERCREDITOR AGREEMENT
Exhibit 10.3
JOINDER AND SUPPLEMENT
to
Reference is made to that certain Intercreditor Agreement, dated as of November 3, 2006 (as supplemented on the date hereof through the execution and delivery of this Agreement and as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), among JPMorgan Chase Bank, N.A., as Intercreditor Agent, Wilmington Trust Company, as Trustee and as Collateral Agent, Hexion LLC, Hexion Specialty Chemicals, Inc. (the “Company”) and each Subsidiary of the Company party thereto (attached hereto as Exhibit A). Capitalized terms used but not defined herein shall have the meanings assigned in the Intercreditor Agreement.
This Joinder and Supplement to the Intercreditor Agreement (this “Agreement”), dated as of January 29, 2010 (the “Effective Date”), by and among (i) Wilmington Trust FSB, as trustee (the “New Trustee”) pursuant to that certain Indenture (the “New Indenture”) dated as of the date hereof among Hexion Finance Escrow LLC and Hexion Escrow Corporation, as issuers and Wilmington Trust FSB, as trustee, as assumed by Hexion U.S. Finance Corp. (the “U.S. Issuer”) and Hexion Nova Scotia Finance, ULC (the “Canadian Issuer” and, together with the U.S. Issuer, the “Issuers”) pursuant to that certain Supplemental Indenture (the “Supplemental Indenture”), dated as of the date hereof, by and among the U.S. Issuer, the Canadian Issuer, the Guarantors party thereto and Wilmington Trust FSB, as Trustee, (ii) JPMorgan Chase Bank, N.A., as Intercreditor Agent under the Intercreditor Agreement, (iii) Wilmington Trust Company, as Trustee and Collateral Agent and as Second-Priority Agent, (iv) Hexion LLC, (v) the Company and (vi) each Subsidiary of Company listed on Schedule I hereto, has been entered into to (A) record the accession of the New Trustee as an additional Senior-Priority Agent under the Intercreditor Agreement on behalf of the holders of the 8.875% senior secured notes due 2018 (the “New Notes”) issued under the New Indenture and assumed by the Issuers pursuant to the Supplemental Indenture, (B) with respect to the Liens securing certain Obligations as set forth below, to confirm and evidence that such Liens shall, for purposes of the Intercreditor Agreement, be equal and ratable with all Liens on the Common Collateral securing any other Senior Lender Claims and (C) for certain related purposes.
The parties to this Agreement hereby agree as follows:
A. The New Trustee agrees to become, with immediate effect, a party to and agrees to be bound by the terms of the Intercreditor Agreement as a Senior-Priority Agent, as if it had originally been party to the Intercreditor Agreement as a Senior-Priority Agent.
B. The New Indenture has been designated by the Company and the Issuers as being included in the definition of “Credit Agreement” set forth in the Second Secured Notes Indenture, which designation shall be irrevocable until such time as all Liens securing the New
Notes have been released pursuant to Section 11.03 of the New Indenture (and any purported revocation of such designation prior to such time shall be ineffective for all purposes of the Intercreditor Agreement). The New Indenture, the New Notes, the Security Documents (as defined in the New Indenture), and any related document or instrument executed and delivered pursuant to any of the foregoing shall constitute “Senior Credit Documents” as defined in the Second Secured Notes Indenture.
C. The Liens securing the Obligations under the New Notes, the New Indenture and any other document or agreement entered into pursuant thereto granted pursuant to the Security Documents have been designated by the Company and the Issuers as having been incurred pursuant to clause (8) of the definition of “Permitted Liens” set forth in the Second Secured Notes Indenture, which designation shall be irrevocable until such time as all Liens securing the New Notes have been released pursuant to Section 11.03 of the New Indenture (and any purported revocation of such designation prior to such time shall be ineffective for all purposes of the Intercreditor Agreement). The Obligations under the New Indenture and any other document or agreement entered into pursuant thereto constitute First-Lien Indebtedness (which First-Lien Indebtedness, for the avoidance of doubt, also constitutes Future First-Lien Indebtedness) and Senior Lender Claims.
D. The Liens on the Common Collateral securing such Senior Lender Claims shall have priority over and be senior in all respects to all Liens on the Common Collateral securing any Second-Priority Claims on the terms set forth in the Intercreditor Agreement and, subject to the terms of any other applicable intercreditor agreement (including that certain Intercreditor Agreement, dated as of the Effective Date (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “1-1/2 Lien Intercreditor Agreement”)) then in effect, shall be equal and ratable with all Liens on the Common Collateral securing any other Senior Lender Claims.
E. So long as the Discharge of Senior Lender Claims has not occurred and subject to the terms of any other applicable intercreditor agreement (including the 1-1/2 Lien Intercreditor Agreement) then in effect, the Common Collateral or proceeds thereof received in connection with the sale or other disposition of, or collection on, the Common Collateral upon the exercise of remedies shall be applied by the Intercreditor Agent ratably to the Senior Lender Claims and, with respect to each class of Senior Lender Claims, in such order as is specified in the relevant Senior Lender Documents until the Discharge of Senior Lender Claims has occurred.
F. The New Trustee confirms that its address for notices pursuant to the Intercreditor Agreement is as follows:
Wilmington Trust FSB
Corporate Capital Markets
00 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Hexion Administrator
G. Each party to this Agreement (other than the New Trustee) confirms the acceptance of the New Trustee as a Senior-Priority Agent for purposes of the Intercreditor Agreement.
H. Except as expressly provided herein, in the Intercreditor Agreement or in any Senior Lender Documents, the New Trustee is acting in the capacity of Senior-Priority Agent solely with respect to the Senior Lender Claims owed to the New Trustee and the holders of the New Notes issued pursuant to the New Indenture. For the avoidance of doubt, the provisions of Article VII of the New Indenture applicable to the New Trustee thereunder shall also apply to the New Trustee acting under or in connection with the Intercreditor Agreement.
I. This Agreement shall be construed in accordance with and governed by the laws of the State of New York.
J. This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
| JPMORGAN CHASE BANK, N.A., as Intercreditor Agent | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
| WILMINGTON TRUST FSB, as a Senior-Priority Agent | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
| WILMINGTON TRUST COMPANY, as Trustee and Collateral Agent and as Second-Priority Agent | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
| HEXION LLC | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
| HEXION SPECIALTY CHEMICALS, INC. | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
| XXXXXX CHEMICAL FOUNDRY, LLC | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
| XXXXXX CHEMICAL INVESTMENTS, INC. | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
| HEXION U.S. FINANCE CORP. | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
| HSC CAPITAL CORPORATION | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
Joinder to Second Lien Intercreditor
| XXXXXX INTERNATIONAL INC. | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
| XXXXXX CHEMICAL INTERNATIONAL, INC. | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
| OILFIELD TECHNOLOGY GROUP, INC. | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
| HEXION CI HOLDING COMPANY (CHINA) LLC | ||
| By Xxxxxx International Inc., as sole managing member | ||
| By: | /s/ Authorized Signatory | |
| Name: | ||
| Title: | ||
Joinder to Second Lien Intercreditor
Schedule I
Xxxxxx Chemical Foundry, LLC
Xxxxxx Chemical Investments, Inc.
Hexion U.S. Finance Corp.
HSC Capital Corporation
Xxxxxx International Inc.
Xxxxxx Chemical International, Inc.
Oilfield Technology Group, Inc.
Hexion CI Holding Company (China) LLC
Exhibit A
See attached.
