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Credit Agreement

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Title:

Credit Agreement

Entities:

Banc One Capital Markets, Inc.; Bank One, NA; Deutsche Bank Securities Inc.; GenCorp Inc.; McDonald Investments Inc.; National City Bank; OMNOVA Solutions Inc.; Bank of New York; Frost Brown Todd; Jones, Day, Reavis & Pogue

Date:

2003

Size:

Preview shows 101KB of 447KB total

Price:

$89

ID:

#219049

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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

Confidential treatment has been requested for the redacted portions of this exhibit, and such confidential portions have been omitted and filed separately with the Securities and Exchange Commission.

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

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

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

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
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

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

SCHEDULE 6.30 INACTIVE SUBSIDIARIES

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