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Credit Agreement [Amended and Restated]

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Title:

Credit Agreement [Amended and Restated]

Entities:

ABN AMRO Bank N.V.; Allied Irish Banks plc; Bank of Nova Scotia; Barclays Bank plc; Chase Manhattan Bank; Ferro Corp.; National City Bank; OM Group, Inc.; Bank of America, NA; Bank of New York; Keybank NA; Jones, Day, Reavis & Pogue; Squire, Sanders & Dempsey; OMG AG & Co. KG

Date:

2001

Size:

Preview shows 63KB of 562KB total

Price:

$98

ID:

#219330

► Loans ► Credit Agreements
► Financial
► Commodities ► Chemical Manufacturing
► Financial ► Money Center Banks
► Financial ► Regional Banks
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$1,310,000,000

AMENDED AND RESTATED CREDIT AGREEMENT

dated as of

August 10, 2001

Among

OM GROUP, INC.

as a Borrower

OMG AG & CO. KG

as a Borrower

THE LENDING INSTITUTIONS NAMED THEREIN

as Lenders

CREDIT SUISSE FIRST BOSTON

as a Lender, the Syndication Agent,

a Joint Lead Arranger,

and

a Joint Book Running Manager

NATIONAL CITY BANK

as a Lender, the Swing Line Lender, the Letter of Credit Issuer,

the Administrative Agent, the Collateral Agent,

a Joint Lead Arranger, and a Joint Book Running Manager

ABN AMRO BANK N.V.,

CREDIT LYONNAIS NEW YORK BRANCH,

and

KEYBANK NATIONAL ASSOCIATION,

as Documentation Agents

$325,000,000 Revolving Facility

$135,000,000 Term A Facility

$500,000,000 Term B Facility

$350,000,000 Asset Sale Term Facility

TABLE OF CONTENTS

SECTION 1.				DEFINITIONS AND TERMS
	1.1.			Certain Defined Terms
	1.2			Computation of Time Periods
	1.3			Accounting Terms
	1.4.			Terms Generally
	1.5.			Currency Equivalents
	1.6.			Pro Forma Calculations
	1.7.			Appointment of the Company as Representative
	1.8.			Addition of Borrowers

SECTION 2.				AMOUNT AND TERMS OF LOANS
		2.1.		Commitments for Loans
		2.2.		Minimum Borrowing Amounts, etc.; Pro Rata Borrowings
		2.3.		Procedures for Borrowing and Disbursement of Funds
		2.4.		Refunding of, or Participation in, Swing Line Loans
		2.5.		Notes; Loan Accounts
		2.6.		Voluntary Conversions of Dollar Denominated Loans
		2.7.		Interest
		2.8.		Selection and Continuation of Interest Periods
		2.9.		Increased Costs, Illegality, etc.
		2.10.		Breakage Compensation
		2.11.		Change of Lending Office; Replacement of Lenders

SECTION 3.				LETTERS OF CREDIT
		3.1.		Letters of Credit
		3.2.		Letter of Credit Requests: Notices of Issuance
		3.3.		Agreement to Repay Letter of Credit Drawings
		3.4.		Letter of Credit Participations
		3.5.		Increased Costs
		3.6.		Guaranty of Letter of Credit Obligations of Other Letter of Credit Obligors

SECTION 4.				FEES; COMMITMENTS
		4.1.		Fees
		4.2.		Voluntary Termination/Reduction of Commitments
		4.3.		Mandatory Adjustments of Commitments, etc.

SECTION 5.				PAYMENTS
		5.1.		Voluntary Prepayments
		5.2.		Scheduled Repayments and Mandatory Prepayments
		5.3.		Method and Place of Payment
		5.4.		Net Payments

SECTION 6.				CONDITIONS PRECEDENT
		6.1.		Conditions Precedent at Closing Date
		6.2.		Conditions Precedent to All Credit Events

SECTION 7.				REPRESENTATIONS AND WARRANTIES
			7.1.	Corporate Status, etc.
			7.2.	Subsidiaries
			7.3.	Corporate Power and Authority, etc.
			7.4.	No Violation
			7.5.	Governmental Approvals
			7.6.	Litigation
			7.7.	Use of Proceeds; Margin Regulations
			7.8.	Financial Statements, etc.
			7.9.	No Material Adverse Change
			7.10.	Tax Returns and Payments
			7.11.	Title to Properties, etc.
			7.12.	Lawful Operations, etc.
			7.13.	Environmental Matters
			7.14.	Compliance with ERISA
			7.15.	Intellectual Property, etc.
			7.16.	Investment Company
			7.17.	Existing Indebtedness
			7.18.	Burdensome Contracts; Labor Relations
			7.19.	Security Interests
			7.20.	Target Acquisition Documents, etc
			7.21.	True and Complete Disclosure

SECTION 8.				AFFIRMATIVE COVENANTS
			8.1.	Reporting Requirements
			8.2.	Books, Records and Inspections
			8.3.	Insurance
			8.4.	Payment of Taxes and Claims
			8.5.	Corporate Franchises
			8.6.	Maintenance of Properties
			8.7.	Compliance with Statutes, etc.
			8.8.	Compliance with Environmental Laws
			8.9.	Fiscal Years, Fiscal Quarters
			8.10.	Hedge Agreements, etc.
			8.11.	Certain Subsidiaries to Join in Subsidiary Guaranty
			8.12.	Additional Security; Further Assurances
			8.13.	Casualty and Condemnation
			8.14.	Landlord/Mortgagee Waivers; Bailee Letters
			8.15.	Most Favored Covenant Status
			8.16.	Senior Debt

SECTION 9.				NEGATIVE COVENANTS
			9.1.	Changes in Business
			9.2.	Consolidation, Merger, Acquisitions, Asset Sales, etc.
			9.3.	Liens
			9.4.	Indebtedness
			9.5.	Advances, Investments, Loans and Guaranty Obligations
			9.6.	Dividends and Other Restricted Payments
			9.7.	Consolidated Total Debt/Consolidated EBITDA Ratio
			9.8.	Consolidated Total Debt/Consolidated Total Capitalization Ratio
			9.9.	Fixed Charge Coverage Ratio
			9.10.	Interest Coverage Ratio
			9.11.	Limitation on Certain Restrictive Agreements
			9.12.	Prepayments and Refinancings of Other Debt, etc.
			9.13.	Transactions with Affiliates
			9.14.	Modifications of Target Acquisition Documents, etc.
			9.15.	Plan Terminations, Minimum Funding, etc.

SECTION 10.				EVENTS OF DEFAULT
			10.1.	Events of Default
			10.2.	Acceleration, etc.
			10.3.	Application of Liquidation Proceeds

SECTION 11.				THE ADMINISTRATIVE AGENT
			11.1.	Appointment
			11.2.	Delegation of Duties
			11.3.	Exculpatory Provisions
			11.4.	Reliance by Administrative Agent
			11.5.	Notice of Default
			11.6.	Non-Reliance
			11.7.	Indemnification
			11.8.	The Administrative Agent in Individual Capacity
			11.9.	Successor Administrative Agent
			11.10.	Other Agents

SECTION 12.				GUARANTY BY THE COMPANY
			12.1.	Guaranty of Certain Subsidiary Borrowings
			12.2.	Additional Undertaking
			12.3.	Guaranty Unconditional, etc
			12.4.	Company Obligations to Remain in Effect; Restoration
			12.5.	Waiver of Acceptance, etc
			12.6.	Subrogation
			12.7.	Effect of Stay

SECTION 13.				MISCELLANEOUS
			13.1.	Payment of Expenses etc.
			13.2.	Right of Setoff
			13.3.	Notices
			13.4.	Benefit of Agreement
			13.5.	No Waiver: Remedies Cumulative
			13.6.	Payments Pro Rata; Sharing of Setoffs, etc
			13.7.	Calculations: Computations
			13.8.	Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial
			13.9.	Counterparts
			13.10.	Effectiveness; Integration
			13.11.	Headings Descriptive
			13.12.	Amendment or Waiver
			13.13.	Survival of Indemnities
			13.14.	Domicile of Loans
			13.15.	Confidentiality
			13.16.	Lender Register
			13.17.	Limitations on Liability of the Letter of Credit Issuers
			13.18.	General Limitation of Liability
			13.19.	No Duty
			13.20.	Lenders and Agent Not Fiduciary to Borrowers, etc.
			13.21.	Survival of Representations and Warranties
			13.22.	Severability
			13.23.	Independence of Covenants
			13.24.	Judgment Currency
			13.25.	Interest Rate Limitation

ANNEX I-A	-	INFORMATION AS TO LENDERS
ANNEX I-B	-	EXISTING LOANS
ANNEX II	-	INFORMATION AS TO SUBSIDIARIES
ANNEX III	-	DESCRIPTION OF EXISTING INDEBTEDNESS
ANNEX IV	-	DESCRIPTION OF EXISTING LIENS
ANNEX V	-	DESCRIPTION OF EXISTING ADVANCES, LOANS,
		INVESTMENTS AND GUARANTEES
ANNEX VI	-	DESCRIPTION OF LETTERS OF CREDIT DEEMED
		ISSUED UNDER THE CREDIT AGREEMENT

EXHIBIT A-1	-	FORM OF TERM A NOTE
EXHIBIT A-2	-	FORM OF TERM B NOTE
EXHIBIT A-3	-	FORM OF ASSET SALE TERM NOTE
EXHIBIT A-4	-	FORM OF REVOLVING NOTE
EXHIBIT A-5	-	FORM OF SWING LINE NOTE

EXHIBIT B-1	-	FORM OF NOTICE OF BORROWING
EXHIBIT B-2	-	FORM OF NOTICE OF CONVERSION
EXHIBIT B-3	-	FORM OF LETTER OF CREDIT REQUEST

EXHIBIT C-1	-	FORM OF SUBSIDIARY GUARANTY
EXHIBIT C-2	-	FORM OF SECURITY AGREEMENT
EXHIBIT C-3	-	FORM OF COLLATERAL ASSIGNMENT OF PATENTS
EXHIBIT C-4	-	FORM OF COLLATERAL ASSIGNMENT OF TRADEMARKS
EXHIBIT C-5	-	FORM OF PLEDGE AGREEMENT

EXHIBIT D-1	-	FORM OF OPINION OF COUNSEL TO THE BORROWER
EXHIBIT D-2	-	FORM OF SOLVENCY CERTIFICATE

EXHIBIT E	-	FORM OF ASSIGNMENT AGREEMENT

EXHIBIT F	-	FORM OF SECTION 5.4(b)(ii) CERTIFICATE

EXHIBIT G	-	FORM OF ADDITIONAL BORROWER JOINDER

AMENDED AND RESTATED CREDIT AGREEMENT

THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 10, 2001, among the following:

	(i) OM GROUP, INC., a Delaware corporation (herein, together with its successors and assigns, the "*Company"* or a *"Borrower*");

	(ii) OMG AG & Co. KG, a partnership organized under the laws of the Federal Republic of Germany (herein, together with its successors and assigns, "*OMG AG" or a "Borrower*");

	(iii) the lending institutions signatory hereto (each a "*Lender" and collectively, the "Lenders*");

	(iv) CREDIT SUISSE FIRST BOSTON ("CSFB") as a Lender, the syndication agent (the "*Syndication Agent"), Joint Book Running Manager and a Joint Lead Arranger (a "Joint Lead Arranger*");

	(v) NATIONAL CITY BANK, a national banking association, as a Lender, the Swing Line Lender, the Letter of Credit Issuer, and as the administrative agent (the "*Administrative Agent"), the collateral agent (the "Collateral Agent"), Joint Book Running Manager and a Joint Lead Arranger (a "Joint Lead Arranger", and together with CSFB, the "Joint Lead Arrangers*"); and

	(vi) ABN AMRO BANK N.V., CREDIT LYONNAIS NEW YORK BRANCH, and KEYBANK NATIONAL ASSOCIATION, each as a Lender and as a documentation agent (the "*Documentation Agent*"):


	PRELIMINARY STATEMENTS:

(1) Unless otherwise defined herein, all capitalized terms used herein and defined in section 1 are used herein as so defined.

(2) The Company entered into the Credit Agreement dated as of April 3, 2000 with the lending institutions party thereto (the "Existing Lenders") and National City Bank, as the Administrative Agent and the Collateral Agent (the "Existing Credit Agreement").

(3) The parties hereto desire to amend and restate the Existing Credit Agreement in its entirety in order to, among other things, (i) finance the acquisition (the "Target Acquisition") by the Company of all of the shares of dmc² Degussa Metals Catalysts Cerdec (the "Target"), from Degussa AG, a corporation formed under the laws of the Federal Republic of Germany pursuant to the Purchase Agreement, dated as of August 10, 2001, among the Target, the Company, and Degussa AG (such Purchase Agreement, as amended or otherwise modified from time to time, the "Target Purchase Agreement"), (ii) provide for the repayment of certain existing Indebtedness, (iii) permit certain Subsidiaries of the Company to become Borrowers hereunder and (iv) provide working capital and funds for other lawful purposes.

(4) Subject to and upon the terms and conditions set forth herein, the Lenders are willing to make available to the Borrowers the credit facilities provided for herein.

NOW, THEREFORE, the parties hereto agree that the Existing Credit Agreement shall, as of the Effective Date, but subject to the satisfaction of the conditions precedent set forth in section 6.1 hereof, be amended and restated in its entirety as follows:

SECTION 1. DEFINITIONS AND TERMS.

1.1. Certain Defined Terms. As used herein, the following terms shall have the meanings herein specified unless the context otherwise requires.

"Acquisition" shall mean and include (i) any acquisition on a going concern basis (whether by purchase, lease or otherwise) of any facility and/or business operated by any person who is not a Subsidiary of the Company, and (ii) acquisitions of a majority of the outstanding equity or other similar interests in any such person (whether by merger, stock purchase or otherwise).

"Additional Borrower Joinder" shall mean, in the case of a Domestic Subsidiary, an Additional Borrower Joinder in the Form of Exhibit G to this Agreement, and in the case of any Foreign Subsidiary, in such form as is acceptable to the Administrative Agent and the Company, pursuant to which the signatory thereto becomes a Borrower hereunder pursuant to section 1.8.

"Additional Security Document" shall have the meaning provided in section 8.12(b).

"Administrative Agent" shall have the meaning provided in the first paragraph of this Agreement and shall include any successor to the Administrative Agent appointed pursuant to section 11.9.

"Affiliate" shall mean, with respect to any person, any other person directly or indirectly controlling, controlled by, or under direct or indirect common control with such person, or, in the case of any Lender which is an investment fund, the investment advisor thereof and any investment fund having the same investment advisor. A person shall be deemed to control a second person if such first person possesses, directly or indirectly, the power (i) to vote 20% or more of the securities having ordinary voting power for the election of directors or managers of such second person or (ii) to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract or otherwise. Notwithstanding the foregoing, (x) a director, officer or employee of a person shall not, solely by reason of such status, be considered an Affiliate of such person; and (y) neither the Administrative Agent nor any Lender shall in any event be considered an Affiliate of the Borrower or any other Credit Party or any of their respective Subsidiaries.

"Agreement" shall mean this Amended and Restated Credit Agreement, as the same may be from time to time further modified, amended and/or supplemented.

"Alternative Currency" shall mean Euros, if at the time such currency is readily and freely transferable and convertible into Dollars.

"Alternative Currency Sublimit" shall mean $150,000,000.

"Applicable Commitment Fee" shall mean a rate per annum set forth in the Pricing Grid in section 2.7(g)(ii).

"Applicable Eurocurrency Margin" shall have the meaning provided in section 2.7(g).

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