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Title: |
Credit Agreement |
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Entities: |
Banc One Capital Markets, Inc.; Bank One, NA; Deutsche Bank Securities Inc.; McDonald Investments Inc.; National City Bank; OMNOVA Solutions Inc.; Bank of New York; Frost Brown Todd; Jones, Day, Reavis & Pogue |
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Date: |
2003 |
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Size: |
Preview shows 111KB of 339KB total |
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Price: |
$76 |
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ID: |
#153924 |
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Start of Preview |
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CREDIT AGREEMENT
Dated as of May 28, 2003
Among
OMNOVA SOLUTIONS INC.
as the Borrower
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as the Lenders
BANK ONE, NA
as the Agent
and
BANC ONE CAPITAL MARKETS, INC.
as the Lead Arranger and Sole Book Runner
TABLE OF CONTENTS
|
Section |
Page | |||
|
ARTICLE 1 LOANS AND LETTERS OF CREDIT |
1 | |||
|
1.1 |
Total Facility |
1 | ||
|
1.2 |
Revolving Loans |
1 | ||
|
1.3 |
Letters of Credit |
5 | ||
|
1.4 |
Bank Products |
8 | ||
|
ARTICLE 2 INTEREST AND FEES |
8 | |||
|
2.1 |
Interest. |
8 | ||
|
2.2 |
Continuation and Conversion Elections |
9 | ||
|
2.3 |
Maximum Interest Rate |
10 | ||
|
2.4 |
Fee Letter |
11 | ||
|
2.5 |
Unused Line Fee |
11 | ||
|
2.6 |
Letter of Credit Fee |
11 | ||
|
ARTICLE 3 PAYMENTS AND PREPAYMENTS |
11 | |||
|
3.1 |
Revolving Loans |
11 | ||
|
3.2 |
Termination of Facility |
11 | ||
|
3.3 |
Prepayments of the Loans |
12 | ||
|
3.4 |
Eurodollar Revolving Loan Prepayments |
13 | ||
|
3.5 |
Payments by the Borrower |
13 | ||
|
3.6 |
Payments as Revolving Loans |
13 | ||
|
3.7 |
Apportionment, Application and Reversal of Payments |
13 | ||
|
3.8 |
Indemnity for Returned Payments |
14 | ||
|
3.9 |
Agents and Lenders Books and Records; Monthly Statements |
14 | ||
|
ARTICLE 4 TAXES, YIELD PROTECTION AND ILLEGALITY |
15 | |||
|
4.1 |
Taxes |
15 | ||
|
4.2 |
Illegality |
16 | ||
|
4.3 |
Increased Costs and Reduction of Return |
16 | ||
|
4.4 |
Funding Losses |
17 | ||
|
4.5 |
Inability to Determine Rates |
17 | ||
|
4.6 |
Certificates of Agent |
18 | ||
|
4.7 |
Survival |
18 | ||
|
ARTICLE 5 BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES |
18 | |||
|
5.1 |
Books and Records |
18 | ||
|
5.2 |
Financial Information |
18 | ||
|
5.3 |
Notices to the Lenders |
21 | ||
|
5.4 |
Appraisals |
23 | ||
i
|
ARTICLE 6 GENERAL WARRANTIES AND REPRESENTATIONS |
23 | |||
|
6.1 |
Authorization, Validity, and Enforceability of this Agreement and the Loan Documents |
23 | ||
|
6.2 |
Validity and Priority of Security Interest |
24 | ||
|
6.3 |
Organization and Qualification |
24 | ||
|
6.4 |
Corporate Name; Prior Transactions |
24 | ||
|
6.5 |
Subsidiaries and Affiliates |
24 | ||
|
6.6 |
Financial Statements and Projections |
25 | ||
|
6.7 |
[Intentionally Deleted] |
25 | ||
|
6.8 |
Solvency |
25 | ||
|
6.9 |
Debt |
25 | ||
|
6.10 |
Distributions |
25 | ||
|
6.11 |
Real Estate; Leases; Liens |
25 | ||
|
6.12 |
Proprietary Rights |
26 | ||
|
6.13 |
Trade Names |
26 | ||
|
6.14 |
Litigation |
26 | ||
|
6.15 |
Labor Disputes |
26 | ||
|
6.16 |
Environmental Laws |
27 | ||
|
6.17 |
No Violation of Law |
28 | ||
|
6.18 |
No Default |
28 | ||
|
6.19 |
ERISA Compliance |
28 | ||
|
6.20 |
Taxes |
29 | ||
|
6.21 |
Regulated Entities |
29 | ||
|
6.22 |
Use of Proceeds; Margin Regulations |
29 | ||
|
6.23 |
Copyrights, Patents, Trademarks and Licenses, etc. |
29 | ||
|
6.24 |
No Material Adverse Change |
29 | ||
|
6.25 |
Full Disclosure |
29 | ||
|
6.26 |
Material Agreements |
30 | ||
|
6.27 |
Bank Accounts |
30 | ||
|
6.28 |
Governmental Authorization |
30 | ||
|
6.29 |
Insurance |
30 | ||
|
6.30 |
Inactive Subsidiaries |
30 | ||
|
6.31 |
Reportable Transaction |
30 | ||
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ARTICLE 7 AFFIRMATIVE AND NEGATIVE COVENANTS |
30 | |||
|
7.1 |
Taxes and Other Obligations |
30 | ||
|
7.2 |
Legal Existence and Good Standing |
31 | ||
|
7.3 |
Compliance with Law and Agreements; Maintenance of Licenses |
31 | ||
|
7.4 |
Maintenance of Property; Inspection of Property |
31 | ||
|
7.5 |
Insurance |
32 | ||
|
7.6 |
Insurance and Condemnation Proceeds |
32 | ||
|
7.7 |
Environmental Laws. |
33 | ||
|
7.8 |
Compliance with ERISA |
33 | ||
|
7.9 |
Mergers, Consolidations or Sales |
33 | ||
|
7.10 |
Distributions; Capital Change; Restricted Investments |
34 | ||
ii
|
7.11 |
Transactions Affecting Collateral or Obligations |
34 | ||
|
7.12 |
Guaranties |
34 | ||
|
7.13 |
Debt |
35 | ||
|
7.14 |
Prepayment |
35 | ||
|
7.15 |
Transactions with Affiliates |
35 | ||
|
7.16 |
Investment Banking and Finders Fees |
35 | ||
|
7.17 |
Business Conducted |
36 | ||
|
7.18 |
Liens |
36 | ||
|
7.19 |
Sale and Leaseback Transactions |
36 | ||
|
7.20 |
New Subsidiaries |
36 | ||
|
7.21 |
Fiscal Year |
36 | ||
|
7.22 |
Capital Expenditures |
36 | ||
|
7.23 |
Fixed Charge Coverage Ratio |
36 | ||
|
7.24 |
Minimum Availability |
36 | ||
|
7.25 |
Use of Proceeds |
36 | ||
|
7.26 |
Amendments to Agreements |
37 | ||
|
7.27 |
Inactive Subsidiaries |
37 | ||
|
7.28 |
Bank Accounts |
37 | ||
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7.29 |
Further Assurances |
37 | ||
|
ARTICLE 8 CONDITIONS OF LENDING |
37 | |||
|
8.1 |
Conditions Precedent to Making of Loans on the Closing Date |
37 | ||
|
8.2 |
Conditions Precedent to Each Loan |
39 | ||
|
ARTICLE 9 DEFAULT; REMEDIES |
40 | |||
|
9.1 |
Events of Default |
40 | ||
|
9.2 |
Remedies |
42 | ||
|
ARTICLE 10 TERM AND TERMINATION |
43 | |||
|
10.1 |
Term and Termination |
43 | ||
|
ARTICLE 11 AMENDMENTS; WAIVERs; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS |
44 | |||
|
11.1 |
Amendments and Waivers |
44 | ||
|
11.2 |
Assignments; Participations |
45 | ||
|
ARTICLE 12 THE AGENT |
47 | |||
|
12.1 |
Appointment and Authorization |
47 | ||
|
12.2 |
Delegation of Duties |
48 | ||
|
12.3 |
Liability of Agent |
48 | ||
|
12.4 |
Reliance by Agent |
48 | ||
|
12.5 |
Notice of Default |
49 | ||
|
12.6 |
Credit Decision |
49 | ||
iii
|
12.7 |
Indemnification |
49 | ||
|
12.8 |
Agent in Individual Capacity |
50 | ||
|
12.9 |
Successor Agent |
50 | ||
|
12.10 |
Withholding Tax |
50 | ||
|
12.11 |
Collateral Matters |
52 | ||
|
12.12 |
Restrictions on Actions by Lenders; Sharing of Payments |
53 | ||
|
12.13 |
Agency for Perfection |
53 | ||
|
12.14 |
Payments by Agent to Lenders |
53 | ||
|
12.15 |
Settlement |
54 | ||
|
12.16 |
Letters of Credit; Intra-Lender Issues |
57 | ||
|
12.17 |
Concerning the Collateral and the Related Loan Documents |
59 | ||
|
12.18 |
Field Audit and Examination Reports; Disclaimer by Lenders |
59 | ||
|
12.19 |
Relation Among Lenders |
60 | ||
|
ARTICLE 13 MISCELLANEOUS |
60 | |||
|
13.1 |
No Waivers; Cumulative Remedies |
60 | ||
|
13.2 |
Severability |
60 | ||
|
13.3 |
Governing Law; Choice of Forum; Service of Process |
60 | ||
|
13.4 |
WAIVER OF JURY TRIAL |
61 | ||
|
13.5 |
Survival of Representations and Warranties |
62 | ||
|
13.6 |
Other Security and Guaranties |
62 | ||
|
13.7 |
Fees and Expenses |
62 | ||
|
13.8 |
Notices |
63 | ||
|
13.9 |
Waiver of Notices |
64 | ||
|
13.10 |
Binding Effect |
64 | ||
|
13.11 |
Indemnity of the Agent and the Lenders by the Borrower |
64 | ||
|
13.12 |
Limitation of Liability |
65 | ||
|
13.13 |
Final Agreement |
65 | ||
|
13.14 |
Counterparts |
65 | ||
|
13.15 |
Captions |
66 | ||
|
13.16 |
Right of Setoff |
66 | ||
|
13.17 |
Confidentiality |
66 | ||
|
13.18 |
Conflicts with Other Loan Documents |
67 | ||
iv
ANNEXES, EXHIBITS AND SCHEDULES
|
ANNEX A |
DEFINED TERMS | |||
|
EXHIBIT A-1 |
FORM OF REVOLVING LOAN NOTE | |||
|
EXHIBIT A-2 |
FORM OF SWING LINE NOTE | |||
|
EXHIBIT B |
FORM OF BORROWING BASE CERTIFICATE | |||
|
EXHIBIT C |
FINANCIAL STATEMENTS | |||
|
EXHIBIT D |
FORM OF NOTICE OF BORROWING | |||
|
EXHIBIT E |
FORM OF NOTICE OF CONTINUATION/CONVERSION | |||
|
EXHIBIT F |
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT | |||
SCHEDULE 1.2 LENDERS COMMITMENTS (ANNEX A DEFINED TERMS)
SCHEDULE 6.3 ORGANIZATION AND QUALIFICATIONS
SCHEDULE 6.5 SUBSIDIARIES AND AFFILIATES
SCHEDULE 6.9 DEBT
SCHEDULE 6.11 REAL ESTATE; LEASES; LIENS
SCHEDULE 6.12 PROPRIETARY RIGHTS
SCHEDULE 6.13 TRADE NAMES
SCHEDULE 6.14 LITIGATION
SCHEDULE 6.15 LABOR DISPUTES
SCHEDULE 6.16 ENVIRONMENTAL LAW
SCHEDULE 6.19 ERISA COMPLIANCE
SCHEDULE 6.26 MATERIAL AGREEMENTS
SCHEDULE 6.27 BANK ACCOUNTS
SCHEDULE 6.29 INSURANCE
v
SCHEDULE 6.30 INACTIVE SUBSIDIARIES
vi
CREDIT AGREEMENT
This Credit Agreement, dated as of May 28, 2003, (this Agreement) among the financial institutions from time to time parties hereto (such financial institutions, together with their respective successors and assigns, are referred to hereinafter each individually as a Lender and collectively as the Lenders), Bank One, NA having its principal office at 120 S. LaSalle Street, Chicago, IL 60603, as agent for the Lenders (in its capacity as agent, the Agent), and OMNOVA Solutions Inc., an Ohio corporation, with offices at 175 Ghent Road, Fairlawn, Ohio 44333 (the Borrower).
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders to make available to the Borrower a revolving line of credit for loans and letters of credit in an amount not to exceed $100,000,000, which extensions of credit the Borrower will use for the purposes permitted hereunder;
WHEREAS, capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings ascribed thereto in Annex A which is attached hereto and incorporated herein; the rules of construction contained therein shall govern the interpretation of this Agreement, and all Annexes, Exhibits and Schedules attached hereto are incorporated herein by reference;
WHEREAS, the Lenders have agreed to make available to the Borrower a revolving credit facility upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the Lenders, the Agent, and the Borrower hereby agree as follows.
ARTICLE 1
LOANS AND LETTERS OF CREDIT
1.1 Total Facility. Subject to all of the terms and conditions of this Agreement, the Lenders agree to make available a total credit facility of up to $100,000,000 (the Total Facility) to the Borrower from time to time during the term of this Agreement. The Total Facility shall be composed of a revolving line of credit consisting of Revolving Loans and Letters of Credit described herein.
1.2 Revolving Loans.
(a) (i) Amounts. Subject to the satisfaction of the conditions precedent set forth in Article 8, each Lender severally, but not jointly, agrees, upon the Borrowers request from time to time on any Business Day during the period from the Closing Date to the Termination Date, to make revolving loans, including, without duplication, Swing Line Loans (the Revolving Loans) to the Borrower in amounts not to exceed such Lenders Pro Rata Share of Availability, except for Agent Advances. The Lenders, however, in their unanimous discretion, may elect to make Revolving Loans or issue or arrange to have issued
Letters of Credit in excess of the Borrowing Base on one or more occasions, but if they do so, neither the Agent nor the Lenders shall be deemed thereby to have changed the limits of the Borrowing Base or to be obligated to exceed such limits on any other occasion. If any Borrowing would exceed Availability, the Lenders may refuse to make or may otherwise restrict the making of Revolving Loans as the Lenders determine until such excess has been eliminated, subject to the Agents authority, in its sole discretion, to make Agent Advances pursuant to the terms of Section 1.2(i).
(ii) Borrower shall execute and deliver to each Lender a note to evidence the Revolving Loan of that Lender. Each note shall be in the principal amount of the Lenders Pro Rata Share of the Revolving Loan Commitments, dated the date hereof and substantially in the form of Exhibit A-1 (each a Revolving Loan Note and, collectively, the Revolving Loan Notes). Each Revolving Loan Note shall represent the obligation of Borrower to pay the amount of Lenders Pro Rata Share of the Revolving Loan Commitments, or, if less, such Lenders Pro Rata Share of the aggregate unpaid principal amount of all Revolving Loans to Borrower together with interest thereon as prescribed in Section 1.2. The entire unpaid balance of the Revolving Loan and all other non-contingent Obligations shall be immediately due and payable in full in immediately available funds on the Termination Date.
(b) Procedure for Borrowing.
(1) Each Borrowing shall be made upon the Borrowers irrevocable written notice delivered to the Agent in the form of a notice of borrowing (Notice of Borrowing), which must be received by the Agent prior to (i) 12:00 noon (Chicago time) three Business Days prior to the requested Funding Date, in the case of Eurodollar Revolving Loans and (ii) 11:00 a.m. (Chicago time) on the requested Funding Date, in the case of Alternate Base Rate Revolving Loans, specifying:
(A) the amount of the Borrowing, which in the case of a Eurodollar Revolving Loan must equal or exceed $5,000,000 (and increments of $1,000,000 in excess of such amount) and which in the case of Alternate Base Rate Revolving Loans must equal o