1
Exhibit 10.1
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AMENDED AND RESTATED CREDIT AGREEMENT
by and among
OMNOVA SOLUTIONS INC.
as Borrower,
BANK OF AMERICA, N.A.,
as Agent and as Lender
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
and
BANC OF AMERICA SECURITIES, LLC
as Sole Lead Arranger and Sole Book Manager
and
BANK ONE, MICHIGAN
and
KEYBANK NATIONAL ASSOCIATION
as Co-Documentation Agents
and
THE BANK OF NEW YORK,
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
MELLON BANK, N.A.
and
COMERICA BANK
as Co-Agents
April 12, 2001
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TABLE OF CONTENTS
Page
ARTICLE I
Amendment, Restatement, Definitions and Terms
1.1 Amendment and Restatement.......................................................................3
1.2. Definitions.....................................................................................3
1.3. Rules of Interpretation........................................................................33
1.4 Accounting for Acquisitions....................................................................34
ARTICLE II
The Credit Facilities
2.1. Revolving Loans................................................................................35
2.2. Use of Proceeds................................................................................38
2.3. Notes..........................................................................................38
2.4. Swing Line.....................................................................................39
ARTICLE III
Letters of Credit
3.1. Letters of Credit..............................................................................41
3.2. Reimbursement and Participations...............................................................41
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1. Interest Rate Options..........................................................................45
4.2. Conversions and Elections of Subsequent Interest Periods.......................................45
4.3. Payment of Interest............................................................................46
4.4. Prepayments of Eurodollar Rate Loans...........................................................46
4.5. Manner of Payment..............................................................................46
4.6. Fees...........................................................................................47
4.7. Pro Rata Payments..............................................................................48
4.8. Computation of Rates and Fees..................................................................48
4.9. Deficiency Advances; Failure to Purchase Participations........................................48
4.10. Intraday Funding...............................................................................49
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ARTICLE V
Security
5.1 Security.......................................................................................50
5.2 Further Assurances.............................................................................50
5.3 Information Regarding Collateral...............................................................51
5.4 Mortgages......................................................................................51
5.5 Permitted Asset Securitizations................................................................51
ARTICLE VI
Change in Circumstances
6.1. Increased Cost and Reduced Return..............................................................53
6.2. Limitation on Types of Loans...................................................................54
6.3. Illegality.....................................................................................54
6.4. Treatment of Affected Loans....................................................................55
6.5. Compensation...................................................................................55
6.6. Taxes..........................................................................................56
ARTICLE VII
Conditions to Closing, Making Loans and Issuing Letters of Credit
7.1. Conditions of Closing..........................................................................58
7.2. Conditions of Revolving Loans and Letter of Credit.............................................61
7.3 Post-Closing Items.............................................................................62
ARTICLE VIII
Representations and Warranties
8.1. Organization and Authority.....................................................................65
8.2. Loan Documents.................................................................................65
8.3. Governmental Authorization.....................................................................66
8.4. Capitalization; Subsidiaries; Investments......................................................66
8.5. Financial Condition............................................................................66
8.6. Title to Properties............................................................................67
8.7. Litigation; Loss Contingencies.................................................................67
8.8. No Default or Breach...........................................................................68
8.9. Contracts......................................................................................68
8.10. Related Party Agreements.......................................................................68
8.11. Environmental Matters..........................................................................68
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8.12. Compliance with Law............................................................................69
8.13. Taxes..........................................................................................69
8.14. Employee Benefit Plans.........................................................................70
8.15. Employment Matters.............................................................................71
8.16. Intellectual Property..........................................................................71
8.17. Insurance......................................................................................71
8.18. Books and Records..............................................................................71
8.19. Judgments and Other Restrictions...............................................................71
8.20 Investment Company; Margin Stock...............................................................72
8.21. Disclosure.....................................................................................72
8.22. Hedging Arrangements...........................................................................72
8.23. Solvency.......................................................................................72
8.24. No Consents, Etc...............................................................................73
8.25. Collateral Locations...........................................................................73
ARTICLE IX
Affirmative Covenants
9.1. Financial Reports, Etc.........................................................................74
9.2. Maintain Properties............................................................................76
9.3. Existence, Qualification, Etc..................................................................76
9.4. Regulations and Taxes..........................................................................76
9.5. Insurance, Proceeds and Condemnation...........................................................76
9.6. True Books.....................................................................................76
9.7. [Reserved.]....................................................................................76
9.8. Right of Inspection............................................................................76
9.9. Observe all Laws...............................................................................77
9.10. Governmental Licenses..........................................................................77
9.11. Covenants Extending to Other Persons...........................................................77
9.12. Officer's Knowledge of Default.................................................................77
9.13. Suits or Other Proceedings.....................................................................77
9.14. Environmental Laws.............................................................................78
9.15. Further Assurances.............................................................................78
9.16. Employee Benefit Plans.........................................................................79
9.17. Continued Operations...........................................................................79
9.18. New Subsidiaries...............................................................................80
9.19. Compliance with Contracts......................................................................82
9.20 Permitted Asset Securitization.................................................................82
ARTICLE X
Negative Covenants
10.1. Financial Covenants............................................................................83
10.2. Acquisitions...................................................................................84
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10.3. Capital Expenditures...........................................................................84
10.4. Liens..........................................................................................85
10.5. Indebtedness...................................................................................86
10.6. Transfer of Assets.............................................................................87
10.7. Investments....................................................................................88
10.8. Merger or Consolidation........................................................................88
10.9. Transactions with Affiliates...................................................................89
10.10. Compliance with ERISA, the Code and Foreign Benefit Laws.......................................89
10.11. Fiscal Year....................................................................................90
10.12. Dissolution, Etc...............................................................................90
10.13. Limitations on Sales and Leasebacks............................................................90
10.14. Rate Hedging Obligations.......................................................................90
10.15. Negative Pledge Clauses........................................................................90
10.16. Restricted Payments............................................................................91
10.17. Amendment of Line of Business Transfer Documents and Spinoff Documents.........................91
10.18 Domestic Assets................................................................................91
10.19 Amendment of Documents.........................................................................91
10.20 Collateral Locations...........................................................................91
10.21 Motor Vehicles.................................................................................92
ARTICLE XI
Events of Default and Acceleration
11.1. Events of Default..............................................................................93
11.2. Agent to Act...................................................................................96
11.3. Cumulative Rights..............................................................................96
11.4. No Waiver......................................................................................97
11.5. Allocation of Proceeds.........................................................................97
ARTICLE XII
The Agent
12.1. Appointment, Powers, and Immunities............................................................99
12.2. Reliance by Agent..............................................................................99
12.3. Defaults......................................................................................100
12.4. Rights as Lender..............................................................................100
12.5. Indemnification...............................................................................100
12.6. Non-Reliance on Agent and Other Lenders.......................................................101
12.7. Resignation of Agent..........................................................................101
12.8. Securitization Intercreditor Agreement Execution..............................................101
12.9 Other Agents; Lead Managers...................................................................101
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ARTICLE XIII
Miscellaneous
13.1. Assignments and Participations................................................................103
13.2. Notices.......................................................................................105
13.3. Right of Set-off; Adjustments.................................................................106
13.4. Survival......................................................................................107
13.5. Expenses......................................................................................107
13.6. Amendments and Waivers........................................................................107
13.7. Counterparts..................................................................................108
13.8. Termination...................................................................................108
13.9. Indemnification; Limitation of Liability......................................................109
13.10. Severability..................................................................................109
13.11. Entire Agreement..............................................................................109
13.12. Agreement Controls............................................................................110
13.13. Usury Savings Clause..........................................................................110
13.14. Payments......................................................................................110
13.15. Confidentiality...............................................................................110
13.16. Governing Law; Waiver of Jury Trial...........................................................111
13.17. Special Funding Option........................................................................112
13.18 Release and Waiver............................................................................114
EXHIBIT A Applicable Commitment Percentages................................................A-1
EXHIBIT B Form of Assignment and Acceptance................................................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative...............C-1
EXHIBIT D-1 Form of Borrowing Notice.......................................................D-1-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans.....................................D-2-1
EXHIBIT E Form of Interest Rate Selection Notice...........................................E-1
EXHIBIT F-1 Form of Revolving Note.........................................................F-1-1
EXHIBIT F-2 Form of Swing Line Note........................................................F-2-1
EXHIBIT G Form of Opinion of Borrower's Counsel............................................G-1
EXHIBIT H Compliance Certificate...........................................................H-1
EXHIBIT I Form of Facility Guaranty........................................................I-1
EXHIBIT J [Reserved.]......................................................................J-1
EXHIBIT K Form of Security Agreement.......................................................K-1
EXHIBIT L Form of Pledge Agreement.........................................................L-1
EXHIBIT M-1 Form of Mortgage...............................................................M-1-1
EXHIBIT M-2 Form of Deed of Trust..........................................................M-2-1
EXHIBIT N Form of Intellectual Property Security Agreement.................................N-1
EXHIBIT O Form of Assignment of Patents, Trademarks, Copyrights and Licenses...............O-1
Schedule 5.3 Information Regarding Collateral.................................................S-1
Schedule 5.4 Mortgaged Property...............................................................S-2
Schedule 8.4 Capital Stock, Subsidiaries and Investments in Other Persons.....................S-2
Schedule 8.5 Indebtedness.....................................................................S-3
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Schedule 8.6 Liens and Real Property..........................................................S-4
Schedule 8.7 Litigation.......................................................................S-5
Schedule 8.8 Defaults.........................................................................S-6
Schedule 8.10 Related Party Agreements.........................................................S-7
Schedule 8.11 Environmental Matters............................................................S-8
Schedule 8.14 Employee Benefit Plans...........................................................S-9
Schedule 8.15 Employment Matters..............................................................S-10
Schedule 8.16 Intellectual Property...........................................................S-11
Schedule 8.17 Insurance.......................................................................S-12
Schedule 8.22 Hedging Arrangements............................................................S-13
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 12, 2001
(the "Agreement"), is made by and among OMNOVA SOLUTIONS INC., an Ohio
corporation having its principal place of business in Fairlawn, Ohio, as
borrower (the "Borrower"), certain Subsidiaries (as defined below) of the
Borrower as Guarantors (as defined below), BANK OF AMERICA, N.A., a national
banking association organized and existing under the laws of the United States,
in its capacity as a Lender ("Bank of America"), and each other financial
institution executing and delivering a signature page hereto and each other
financial institution which may hereafter execute and deliver an instrument of
assignment with respect to this Agreement pursuant to SECTION 13.1 (hereinafter
such financial institutions may be referred to individually as a "Lender" or
collectively as the "Lenders"), and BANK OF AMERICA, N.A., a national banking
association organized and existing under the laws of the United States, in its
capacity as agent for the Lenders (in such capacity, and together with any
successor agent appointed in accordance with the terms of SECTION 12.7, the
"Agent");
W I T N E S S E T H:
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WHEREAS, the Borrower, the Agent and the Lenders are party to that
certain Credit Agreement dated as of September 30, 1999 (the "Existing
Agreement"), pursuant to which the Lenders have agreed to make available to the
Borrower a revolving credit facility in the maximum aggregate principal amount
at any time outstanding of up to $300,000,000, the proceeds of which have been
and are to be used for working capital, capital expenditures, the making of the
Special Distribution (as defined in the Existing Agreement), permitted
acquisitions and other lawful general corporate purposes and which includes a
letter of credit facility of up to $25,000,000 for the issuance of standby and
commercial letters of credit and a swing line facility of up to $10,000,000; and
WHEREAS, pursuant to a letter dated as of February 14, 2001 by and
among the Borrower, OMNOVA Services Inc., an Ohio corporation, as a Guarantor,
OMNOVA Wallcovering (USA), Inc., an Ohio corporation, as a Guarantor, the Agent
and the Lenders (the "Waiver Letter"), the Required Lenders waived compliance
with certain financial covenants under the Existing Agreement for the period
from February 28, 2001 to April 13, 2001 and the Total Revolving Credit
Commitment under the Existing Agreement during such period was reduced from
$300,000,000 to $225,000,000; and
WHEREAS, the Borrower has requested that the Agent and the Lenders
amend and restate the Existing Agreement to permanently reduce the maximum
amount available thereunder from $300,000,000 to $240,000,000 and to amend
certain covenants therein, which amendment and restatement shall supersede the
Waiver Letter; and
WHEREAS, the Lenders and the Agents are willing to amend and restate
the Existing Agreement and to continue to make certain credit, letter of credit
and swing line facilities available to the Borrower upon the terms and
conditions set forth herein;
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NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
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ARTICLE I
AMENDMENT, RESTATEMENT, DEFINITIONS AND TERMS
1.1. AMENDMENT AND RESTATEMENT.
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(a) The Borrower, each Guarantor, the Agent and the Lenders hereby
agree that upon the effectiveness of this Agreement, the terms and provisions of
the Existing Agreement and the Waiver Letter which in any manner govern or
evidence the Obligations, the rights and interests of the Agents and the Lenders
and any terms, conditions or matters related to any thereof, shall be and hereby
are amended and restated in their entirety by the terms, conditions and
provisions of this Agreement, and the terms and provisions of the Existing
Agreement and the Waiver Letter, except as otherwise expressly provided herein,
shall be superseded by this Agreement.
(b) Notwithstanding this amendment and restatement of the Existing
Agreement, including anything in this SECTION 1.1, and certain of the related
"Loan Documents" as defined in the Existing Agreement (the "Prior Loan
Documents"), (i) all of the indebtedness, liabilities and obligations owing by
the Borrower under the Existing Agreement and other Prior Loan Documents shall
continue as Obligations hereunder, and (ii) each of this Agreement and the Notes
and the Facility Guaranty is given as a substitution of, and not as a payment
of, the indebtedness, liabilities and obligations of the Borrower and the
Guarantors under the Existing Agreement or any Prior Loan Document and is not
intended to constitute a novation thereof or of any of the other Prior Loan
Documents. Upon the effectiveness of this Agreement, all Loans owing by the
Borrower and outstanding under the Existing Agreement shall continue as Loans
hereunder and shall constitute Advances hereunder. Base Rate Loans under the
Existing Agreement shall accrue interest at the Base Rate hereunder and the
parties hereto agree that the Interest Periods for all Eurodollar Rate Loans
outstanding under the Existing Agreement on the Closing Date shall remain in
effect without renewal, interruption or extension as Eurodollar Rate Loans under
this Agreement and accrue interest at the Eurodollar Rate hereunder.
1.2. DEFINITIONS. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquisition" means the Decorative Products Acquisition and
each other acquisition of (i) a controlling equity interest in another
Person (including the purchase of an option, warrant or convertible or
similar type security to acquire such a controlling interest at the
time it becomes exercisable by the holder thereof), whether by purchase
of such equity interest or upon exercise of an option or warrant for,
or conversion of securities into, such equity interest, or (ii) assets
of another Person which constitute all or any material part of the
assets of such Person or of a line or lines of business conducted by
such Person.
"Acquisition Adjustments" means the adjustments to certain
financial terms and computations more particularly described in SECTION
1.4.
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"Advance" means a borrowing under the Revolving Credit
Facility consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Affected Loans" and "Affected Type" have the meanings
therefor provided in SECTION 6.4.
"Affiliate" means any Person other than a wholly owned
Subsidiary or an Employee Benefit Plan (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Borrower; or (ii) which beneficially owns
or holds 10% or more of any class of the outstanding voting stock
(calculated after giving effect pro forma to the conversion of all
issued and outstanding capital stock convertible into voting stock of
the Borrower) (or in the case of a Person which is not a corporation,
10% or more of the equity interest) of the Borrower; or (iii) 10% or
more of any class of the outstanding voting stock (or in the case of a
Person which is not a corporation, 10% or more of the equity interest)
of which is beneficially owned or held by the Borrower. The term
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a
Person, whether through ownership of voting stock, by contract or
otherwise.
"Amortization Event" shall have the meaning given thereto in
the Receivables Purchase Agreement.
"Applicable Commitment Percentage" means, for each Lender at
any time, a fraction, with respect to the Revolving Credit Facility and
the Letter of Credit Facility the numerator of which shall be such
Lender's Revolving Credit Commitment and the denominator of which shall
be the Total Revolving Credit Commitment, which Applicable Commitment
Percentage for each Lender as of the Closing Date is as set forth in
Exhibit A; provided that the Applicable Commitment Percentage of each
Lender shall be increased or decreased to reflect any assignments to or
by such Lender effected in accordance with SECTION 13.1.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower by written notice in accordance with the
terms hereof as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" means that percent per annum set forth
below, which shall be based upon the Consolidated Leverage Ratio for
the Four-Quarter Period most recently ended as specified below:
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Eurodollar
Level Leverage Ratio Rate Base Rate
----- -------------- ---- ---------
I Greater than 5.00 to 1.00 3.00% 1.50%
II Less than or equal to 5.00 to 1.00 but 2.50% 1.00%
greater than 4.00 to 1.00
III Less than or equal to 4.00 to 1.00 but 2.00% 0.50%
greater than 3.00 to 1.00
IV Less than or equal to 3.00 to 1.00 but 1.50% 0.00%
greater than 2.25 to 1.00
V Less than or equal to 2.25 to 1.00 but 1.25% 0.00%
greater than 1.50 to 1.00
VI Less than or equal to 1.50 to 1.00 but 1.00% 0.00%
greater than 0.75 to 1.00
VII Less than or equal to 0.75 to 1.00 0.75% 0.00%
The Applicable Margin shall be established at the end of each fiscal
quarter of the Borrower (each, a "Determination Date"). Any change in
the Applicable Margin following each Determination Date shall be
determined based upon the computations set forth in the certificate
furnished to the Agent pursuant to SECTION 9.1(a)(ii) and SECTION
9.1(b)(ii), subject to review and approval of such computations by the
Agent, and shall be effective commencing on the fifth Business Day
following the date such certificate is received until the fifth
Business Day following the date on which a new certificate is delivered
or is required to be delivered, whichever shall first occur; PROVIDED
HOWEVER, if the Borrower shall fail to deliver any such certificate
within the time period required by SECTION 9.1, then the Applicable
Margin shall be Level I from the date such certificate was due until
the appropriate certificate is so delivered. From the Closing Date
until the date that a change in the Applicable Margin is determined for
the first Determination Date after the Closing Date, in accordance with
the provisions of this paragraph, the Applicable Margin shall be Level
I.
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"Applicable Unused Fee" means that percent per annum set forth
below, which shall be based upon the Consolidated Leverage Ratio for
the Four-Quarter Period most recently ended as specified below:
Applicable
Level Leverage Ratio Unused Fee
----- -------------- ----------
I Greater than 5.00 to 1.00 0.50%
II Less than or equal to 5.00 to 1.00 but 0.50%
greater than 4.00 to 1.00
III Less than or equal to 4.00 to 1.00 but 0.40%
greater than 3.00 to 1.00
IV Less than or equal to 3.00 to 1.00 but 0.35%
greater than 2.25 to 1.00
V Less than or equal to 2.25 to 1.00 but 0.30%
greater than 1.50 to 1.00
VI Less than or equal to 1.50 to 1.00 but 0.25%
greater than 0.75 to 1.00
VII Less than or equal to 0.75 to 1.00 0.20%
The Applicable Unused Fee shall be established at each Determination
Date. Any change in the Applicable Unused Fee following each
Determination Date shall be determined based upon the computations set
forth in the certificate furnished to the Agent pursuant to SECTION
9.1(a)(ii) and SECTION 9.1(b)(ii), subject to review and approval of
such computations by the Agent and shall be effective commencing on the
fifth Business Day following the date such certificate is received
until the fifth Business Day following the date on which a new
certificate is delivered or is required to be delivered, whichever
shall first occur; provided however, if the Borrower shall fail to
deliver any such certificate within the time period required by SECTION
9.1, then the Applicable Unused Fee shall be Level I from the date such
certificate was due until the appropriate certificate is so delivered.
From the Closing Date until the date that a change in the Applicable
Unused Fee is determined for the first Determination Date after the
Closing Date, in accordance with the provisions of this paragraph, the
Applicable Unused Fee shall be Level I.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to the Issuing Bank to support the issuance of Letters of
Credit.
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"Asian Joint Ventures" means each of CPPC-Decorative Products
Company Limited, a Thailand limited liability company, and Decorative
Products Singapore (Pte. Ltd.), a Singapore limited liability company.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of EXHIBIT B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to SECTION 13.1.
"Authorized Representative" means the Chief Financial Officer
of the Borrower, or any other Person expressly designated by a
Responsible Officer or the Board of Directors of the Borrower (or the
appropriate committee thereof) as an Authorized Representative of the
Borrower, as set forth from time to time in a certificate in the form
of EXHIBIT C.
"Bank of America" means Bank of America, N.A.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means, for any day, the fluctuating rate per annum
equal to the sum of (a) the higher of (i) the Federal Funds Rate for
such day plus one-half of one percent (0.5%) and (ii) the Prime Rate
for such day PLUS (b) the Applicable Margin. Any change in the Base
Rate due to a change in the Prime Rate or the Federal Funds Rate shall
be effective on the effective date of such change in the Prime Rate or
Federal Funds Rate.
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan or Swing
Line Loan made either to (i) satisfy Reimbursement Obligations arising
from a drawing under a Letter of Credit or (ii) pay Bank of America in
respect of Swing Line Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower's Account" means a demand deposit account number
3751372974 or any successor account with the Agent, which may be
maintained at one or more offices of the Agent or an agent of the
Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms of EXHIBITS D-1 AND D-2,
respectively.
"Business Day" means, (i) except as expressly provided in
clause (ii), any day which is not a Saturday, Sunday or a day on which
banks in the States of New York and
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California are authorized or obligated by law, executive order or
governmental decree to be closed and, (ii) with respect to the
selection, funding, interest rate, payment, and Interest Period of any
Eurodollar Rate Loan, any day which is a Business Day, as described
above, and on which the relevant international financial markets are
open for the transaction of business contemplated by this Agreement in
London, England, New York, New York and San Francisco, California.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the sum of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Borrower or any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or comparable items on
the consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Agent together with any compliance certificate
delivered pursuant to SECTION 9.1(a) or (b), and (ii) with respect to
any Capital Lease entered into by the Borrower or its Subsidiaries
during such period, the present value of the lease payments due under
such Capital Lease over the term of such Capital Lease applying a
discount rate equal to the interest rate provided in such lease (or in
the absence of a stated interest rate, that rate used in the
preparation of the financial statements described in SECTION 9.1(a)),
all the foregoing in accordance with GAAP applied on a Consistent
Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in SECTIONS
13(d)(3) and 14(d)(2) of the Exchange Act) either (a) becomes
the "beneficial owner" (as defined in Rule 13d-3 of the
Exchange Act ), directly or indirectly, of Voting Securities
of the Borrower (or securities convertible into or
exchangeable for such Voting Securities) representing thirty
percent (30%) or more of the combined voting power of all
Voting Securities of the Borrower (on a fully diluted basis)
or (b) otherwise has the ability, directly or indirectly, to
elect a majority of the board of directors of the Borrower; or
(ii) during any period of up to 24 consecutive
months, commencing on the Closing Date, individuals who at the
beginning of such 24-month period were directors of the
Borrower shall cease for any reason to constitute a majority
of the board of directors of the Borrower, unless the
nomination for election by the Borrower's stockholders of each
new director of the Borrower was approved by a vote of at
least two-thirds of the directors of the Borrower still in
office who were directors of the Borrower at the beginning of
any such period.
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"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in SECTION 7.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Collateral" means, collectively, all property of the
Borrower, any Subsidiary or any other Person in which the Agent or any
Lender is granted a Lien under any Security Instrument as security for
payment of all or any portion of the Obligations or any other
obligation arising under any Loan Document.
"Complete Fiscal Quarter" means a full fiscal quarter of the
Borrower including the first and last days of such fiscal quarter.
"Consignment Perfection Action" means all actions required
under the Uniform Commercial Code for the Borrower or any Subsidiary
delivering personal property to any consignee under any consignment
arrangement to perfect its interest and ownership of such personal
property as against any creditors of the consignee, including any
actions reasonably requested by the Agent to accomplish such perfection
of its interest in consigned property.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of the Borrower referred to as of
the Closing Date in SECTION 8.5(a).
"Consolidated Cash Interest Expense" means, with respect to
any period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries paid in cash, including without
limitation (i) all fees paid during such period, (ii) the portion of
any payments made in connection with Capital Leases during such period
allocable to interest expense, and (iii) the net cash financing costs
incurred during such period in connection with any Permitted Asset
Securitization, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis, subject to Acquisition
Adjustments.
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i) Consolidated
Net Income, (ii) Consolidated Interest Expense, (iii) taxes on income,
(iv) amortization, (v) depreciation, and (vi) (to the extent not
otherwise included in the amounts set forth in (i) through (iv) of this
definition) any applicable Restructuring Addback for such period, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis, subject to Acquisition Adjustments.
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"Consolidated Interest Coverage Ratio" means with respect to
the Borrower and its Subsidiaries, for any Four-Quarter Period ending
on the date of computation thereof, the ratio of (i) Consolidated
EBITDA for such period to (ii) Consolidated Cash Interest Expense for
such period.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Swap Agreement) payable in
connection with the incurrence of Indebtedness to the extent included
in gross interest expense, (iii) the portion of any payments made in
connection with Capital Leases allocable to interest expense, and (iv)
the net cash financing costs incurred in connection with any Permitted
Asset Securitization, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis, subject to
Acquisition Adjustments.
"Consolidated Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Total Funded Debt
(determined as at such date) to (ii) Consolidated EBITDA (for the
Four-Quarter Period ending on (or most recently ended prior to) such
date).
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries (including payments received by the Borrower and its
Subsidiaries of (i) interest income, and (ii) dividends and
distributions made in the ordinary course of their businesses by
Persons in which investment is permitted pursuant to this Agreement and
not related to an extraordinary event), less all operating and
non-operating expenses of the Borrower and its Subsidiaries including
taxes on income, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis; but excluding (for all
purposes other than determining compliance with SECTION 10.1(c) hereof)
as income: (i) net gains on the sale, conversion or other disposition
of capital assets, except dispositions of capital assets conducted in
the ordinary course of business of the Borrower and its Subsidiaries
not to exceed $1,000,000 per Fiscal Year, (ii) net gains on the
acquisition, retirement, sale or other disposition of capital stock and
other securities of the Borrower or its Subsidiaries, (iii) net gains
on the collection of proceeds of life insurance policies, (iv) any
write-up of any asset, and (v) any other net gain or credit of an
extraordinary nature as determined in accordance with GAAP applied on a
Consistent Basis; PROVIDED FURTHER, HOWEVER, that Consolidated Net
Income shall be determined without giving effect to FASB 133
Adjustments as may be required by GAAP, subject to Acquisition
Adjustments.
"Consolidated Net Worth" means, as of any date on which the
amount thereof is to be determined, (i) the sum of the following in
respect of the Borrower and its Subsidiaries (determined on a
consolidated basis and excluding any upward adjustment after the
Closing Date due to revaluation of assets): (a) the amount of issued
and outstanding share capital, (b) the amount of additional paid-in
capital and retained earnings (or, in the case of a deficit, minus the
amount of such deficit), and (c) the
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amount of any foreign currency translation adjustment (if positive, or,
if negative, minus the amount of such translation adjustment), (ii)
minus (a) the amount of any treasury stock and (b) (without duplication
of deductions in respect of items already deducted in arriving at
surplus and retained earnings) all other items included in accumulated
other comprehensive income (loss), all as determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis.
"Consolidated Total Assets" means, as of any date on which the
amount thereof is to be determined, the net book value of all assets of
the Borrower and its Subsidiaries as determined on a consolidated basis
in accordance with GAAP applied on a Consistent Basis.
"Consolidated Total Funded Debt" means all Indebtedness for
Money Borrowed of the Borrower and its Subsidiaries, all determined on
a consolidated basis.
"Contingent Obligation" of any Person means all contingent
liabilities required to be included in the financial statements, or
disclosed in the footnotes thereto, of such Person in accordance with
GAAP applied on a Consistent Basis, including Statement No. 5 of the
Financial Accounting Standards Board, all Rate Hedging Obligations and
any obligation of such Person guaranteeing or in effect guaranteeing
any Indebtedness, dividend or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including the obligations of such Person however incurred:
(1) to purchase such Indebtedness or other obligation or any
property or assets constituting security therefor;
(2) to advance or supply funds in any manner (i) for the
purchase or payment of such Indebtedness or other obligation,
or (ii) to maintain a minimum working capital, net worth or
other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any Lien on any property or assets of
such Person to secure the payment of such Indebtedness or
other obligation;
(4) to lease property or to purchase securities or other
property or services primarily for the purpose of assuring the
owner or holder of such Indebtedness or obligation of the
ability of the primary obligor to make payment of such
Indebtedness or other obligation; or
(5) otherwise to assure the owner of such Indebtedness or such
obligation of the primary obligor against loss in respect
thereof.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to SECTION 4.2 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
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"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to SECTION 4.2 of one Type of Loan into another
Type of Loan.
"Cost of Acquisition" means, with respect to any Acquisition,
as at the date of entering into any agreement therefor, the sum of the
following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of Borrower or any
Subsidiary to be transferred in connection therewith, (ii) the amount
of any cash and the fair market value of other property (excluding
property described in clause (i) and the unpaid principal amount of any
debt instrument) given as consideration, (iii) the amount (determined
by using the face amount or the amount payable at maturity, whichever
is greater) of any Indebtedness incurred, assumed or acquired by the
Borrower or any Subsidiary in connection with such Acquisition, (iv)
all additional purchase price amounts in the form of earnouts and other
contingent obligations that should be recorded on the financial
statements of the Borrower and its Subsidiaries in accordance with
GAAP, (v) all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial statements
of the Borrower and its Subsidiaries in accordance with GAAP, and other
affiliated contracts in connection with such Acquisition, (vi) the
aggregate fair market value of all other consideration given by the
Borrower or any Subsidiary in connection with such Acquisition, and
(vii) out of pocket transaction costs for the services and expenses of
attorneys, accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so incurred. For
purposes of determining the Cost of Acquisition for any transaction,
(a) the capital stock of the Borrower shall be valued (i) in the case
of capital stock that is then designated as a national market system
security by the National Association of Securities Dealers, Inc.
("NASDAQ") or is listed on a national securities exchange, the average
of the last reported bid and ask quotations or the last prices reported
thereon, and (ii) with respect to any other shares of capital stock, as
determined by the Board of Directors of the Borrower and, if requested
by the Agent, determined to be a reasonable valuation by the
independent public accountants referred to in SECTION 9.1(a), (b) the
capital stock of any Subsidiary shall be valued as determined by the
Board of Directors of such Subsidiary and, if requested by the Agent,
determined to be a reasonable valuation by the independent public
accountants referred to in SECTION 9.1(a), and (c) with respect to any
Acquisition accomplished pursuant to the exercise of options or
warrants or the conversion of securities, the Cost of Acquisition shall
include both the cost of acquiring such option, warrant or convertible
security as well as the cost of exercise or conversion.
"Credit Parties" means, collectively, the Borrower, each
Guarantor and each other Person providing Collateral pursuant to any
Security Instrument.
"Decorative Products Acquisition" means the Acquisition by the
Borrower of certain assets of a decorative products company previously
disclosed to the Agent and the Lenders, the total Cost of Acquisition
for which does not exceed $20,000,000 and which is financed by the
Borrower exclusively with (a) the Net Proceeds of any public or private
offering of any equity security issued thereby, none of which equity
securities is (x) subject to any put or right of redemption or (y)
convertible into or exchangeable for
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Indebtedness, and/or (b) the Net Proceeds of subordinated Indebtedness
permitted under SECTION 10.5(a)(VIII).
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Base Rate Loans,
Swing Line Loans, Reimbursement Obligations, fees, and other amounts
payable in respect of Obligations (other than Obligations arising under
or in connection with Swap Agreements) or (except as otherwise
expressly provided therein) the obligations of any other Credit Party
under any of the other Loan Documents, a rate of interest per annum
which shall be two percent (2%) above the Base Rate and (iii) in any
case, the maximum rate permitted by applicable law, if lower.
"Determination Date" has the meaning therefor provided in the
definition of "Applicable Margin."
"Direct Foreign Subsidiary" means a Subsidiary other than a
Domestic Subsidiary a majority of whose Voting Securities, or a
majority of whose Subsidiary Securities, are owned by the Borrower or a
Domestic Subsidiary (other than the US Joint Venture), provided that
this definition shall not include OMNOVA Spain.
"Distribution Agreement" means the Distribution Agreement
dated as of September 30, 1999 between GenCorp and the Borrower
providing for the Line of Business Transfer and other related matters.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of the United States of America, any state or
territory thereof or the District of Columbia.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by each of the Agent, the
Issuing Bank, Bank of America as provider of Swing Line Loans and,
unless an Event of Default has occurred and is continuing at the time
any assignment is effected in accordance with SECTION 13.1, the
Borrower, each such required approval not to be unreasonably withheld
(provided that the incurrence by the Borrower of additional costs
pursuant to SECTION 6.6 as a result of such assignment shall constitute
a reasonable basis for withholding such consent) or delayed, and any
required approval of the Borrower to be deemed given (in the absence of
notice to the contrary, effective upon receipt) within five Business
Days after notice of such proposed assignment has been provided by the
assigning Lender to the Borrower;
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PROVIDED, HOWEVER, that neither the Borrower nor an affiliate of the
Borrower shall qualify as an Eligible Assignee.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(a) Government Securities;
(b) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and ▇▇▇▇▇'▇;
(c) interest bearing demand or time deposits issued
by any Lender or certificates of deposit maturing within one
year from the date of issuance thereof and issued by a bank or
trust company organized under the laws of the United States or
of any state thereof having capital surplus and undivided
profits aggregating at least $400,000,000 and being rated "A"
or better by S&P or "A" or better by ▇▇▇▇▇'▇;
(d) Repurchase Agreements;
(e) Municipal Obligations; or
(f) shares of mutual funds which invest in
obligations described in paragraphs (a) through (e) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P.
"Employee Benefit Plan" means (i) any employee benefit plan,
including any Pension Plan, within the meaning of Section 3(3) of ERISA
which (a) is maintained for employees of the Borrower or any of its
ERISA Affiliates, or any Subsidiary or is assumed by the Borrower or
any of its ERISA Affiliates, or any Subsidiary in connection with any
Acquisition or (b) has at any time within the previous six (6) years
been maintained by the Borrower for the employees of the Borrower, any
current or former ERISA Affiliate, or any Subsidiary and (ii) any plan,
arrangement, understanding or scheme maintained by the Borrower or any
Subsidiary that provides retirement, deferred compensation, employee or
retiree medical or life insurance, severance benefits or any other
benefit covering any employee or former employee and which is
administered under any Foreign Benefit Law or regulated by any
Governmental Authority other than the United States of America.
"Employee Matters Agreement" means the Agreement on Employee
Matters dated as of September 30, 1999 between GenCorp and the Borrower
providing for the treatment of employee benefit matters and other
compensation arrangements for former and current employees of the
Borrower and its Subsidiaries.
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"Environmental Laws" means, collectively, any (i) Federal,
state, local or foreign statute, law, ordinance, code, rule or
regulation, or (ii) order or decree issued to or against the Borrower
or any Subsidiary, in either case regulating, relating to, or imposing
liability or standards of conduct concerning, any environmental matters
or conditions, environmental protection or conservation, including
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended; the Superfund
Amendments and Reauthorization Act of 1986, as amended; the Resource
Conservation and Recovery Act, as amended; the Toxic Substances Control
Act, as amended; the Clean Air Act, as amended; the Clean Water Act, as
amended; together with all regulations promulgated thereunder, and any
other "Superfund" or "Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
Rate ------------------------- Margin
1-Reserve Requirement
"Event of Default" means any of the occurrences set forth as
such in SECTION 11.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Existing Agreement" has the meaning given thereto in the
preamble hereto.
"Existing Notes" means the Notes as defined in and issued
under the Existing Agreement.
"Facility Guaranty" means each Guaranty Agreement between one
or more Guarantors and the Agent for the benefit of the Agent and the
Lenders, delivered on or at any time after the Closing Date, including
without limitation (i) the Amended, Consolidated and Restated Guaranty
Agreement dated as of the Closing Date by and among each Domestic
Subsidiary in existence on that date and the Agent for the benefit of
the Agent and the Lenders, and (ii) each other Guaranty Agreement,
substantially in
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the form of EXHIBIT I, delivered pursuant to SECTION 9.18, as any such
Facility Guaranty may from time to time be amended, modified,
supplemented or amended and restated.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility and the Swing Line by payment
in full of all Revolving Credit Outstandings and Letter of Credit
Outstandings and Swing Line Outstandings, together with all accrued and
unpaid interest thereon, except for the undrawn portion of Letters of
Credit as have been fully cash collateralized in a manner consistent
with the terms of SECTION 11.1(b), (b) all Swap Agreements shall have
been terminated, expired or cash collateralized, (c) all Revolving
Credit Commitments and Letter of Credit Commitments shall have
terminated or expired and (d) the Borrower shall have fully, finally
and irrevocably paid and satisfied in full all Obligations (other than
Obligations consisting of continuing indemnities and other Contingent
Obligations of the Borrower or any Guarantor that may be owing to the
Lenders pursuant to the Loan Documents and expressly survive
termination of this Agreement);
"FASB 133 Adjustments" means entries on or adjustments to any
balance sheet or statement of income in respect of derivatives or
hedging instruments as required or permitted by Statement of Financial
Accounting Standards No. 133.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; PROVIDED
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"Fiscal Year" means the twelve month fiscal period of the
Borrower and its Subsidiaries commencing on December 1 of each calendar
year and ending on November 30 of the subsequent calendar year.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrower and its Subsidiaries, taken together as
one accounting period.
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"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public
Accountants, or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report.
"GenCorp" means GenCorp Inc.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guaranties" means all obligations of the Borrower or any
Subsidiary directly or indirectly guaranteeing, or in effect
guaranteeing, any Indebtedness for Money Borrowed of any other Person.
"Guarantors" means, at any date, each Domestic Subsidiary of
the Borrower (other than the Securitization Subsidiary and the US Joint
Venture), whether in existence at the Closing Date or acquired or
created at any time thereafter, each of which shall have executed and
delivered a Facility Guaranty on the Closing Date or shall do so
thereafter pursuant to SECTION 9.18.
"Guarantors' Obligations" has the meaning given to such term
in the applicable Facility Guaranty with respect to the applicable
Guarantor.
"Hazardous Material" means and includes any hazardous, toxic
or dangerous waste, substance or material the generation, handling,
storage, disposal, treatment, release, discharge or emission of which
is subject to any Environmental Law.
"Indebtedness" means as to any Person, without duplication,
(a) all Indebtedness for Money Borrowed of such Person, (b) all Rate
Hedging Obligations of such Person, (c) all indebtedness secured by any
Lien on any property or asset owned or held by such Person regardless
or whether the indebtedness secured thereby shall have been assumed by
such Person or is non-recourse to the credit of such Person, and (d)
all Contingent Obligations of such Person.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation, all obligations under Capital
Leases, all Securitization Outstandings, the deferred
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purchase price of any property or services, the principal balance
outstanding under any synthetic lease or tax retention operating lease,
and payment and reimbursement obligations in respect of surety bonds,
letters of credit, and bankers' acceptances, whether or not matured,
evidenced by a promissory note, bond, debenture or similar written
obligation for the payment of money (including reimbursement agreements
and conditional sales or similar title retention agreements), other
than trade payables and accrued expenses incurred in the ordinary
course of business.
"Intellectual Property" has the meaning therefor provided in
SECTION 8.16.
"Intellectual Property Assignment" means, collectively (or
individually as the context may indicate), (i) the Assignment of
Patents, Trademarks, Copyrights and Licenses dated as of the Closing
Date by the Borrower and each applicable Guarantor to the Agent for the
benefit of the Agent and the Lenders, and (ii) any additional
Assignment of Patents, Trademarks, Copyrights and Licenses delivered to
the Agent pursuant to SECTION 9.18, as each may hereafter be modified,
amended, supplemented or amended and restated from time to time.
"Intellectual Property Security Agreement" means, collectively
(or individually as the context may indicate), (i) the Intellectual
Property Security Agreement dated as of the Closing Date by the
Borrower and each of the Guarantors to the Agent for the benefit of the
Agent and the Lenders, and (ii) any additional Intellectual Property
Security Agreement delivered to the Agent pursuant to SECTION 9.18, as
each may hereafter be modified, amended, supplemented or amended and
restated from time to time.
"Interbank Offered Rate" means, with respect to any
Eurodollar Rate Loan for the Interest Period applicable thereto, the
rate per annum (rounded upwards, if necessary), to the nearest 1/100 of
1% appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period. If
for any reason such rate is not available, the term "Interbank Offered
Rate" shall mean, with respect to any Eurodollar Rate Loan for the
Interest Period applicable thereto, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period, PROVIDED, HOWEVER; if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%).
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted or Continued and ending, at the Borrower's option, on the
date one, two, three or six months thereafter as notified to the Agent
by the Authorized Representative in accordance with the terms hereof;
PROVIDED that,
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(i) if an Interest Period for a Eurodollar Rate Loan
would end on a day which is not a Business Day, such Interest Period
shall be extended to the next Business Day (unless such extension would
cause the applicable Interest Period to end in the succeeding calendar
month, in which case such Interest Period shall end on the next
preceding Business Day); and
(ii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar
month.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of EXHIBIT E.
"Issuing Bank" means initially Bank of America and thereafter
any Lender which is successor to Bank of America as issuer of Letters
of Credit under ARTICLE III.
"Joint Venture Documents" means, collectively, all
Organizational Documents or any other documents governing the
operations, ownership and governance of the Asian Joint Ventures and
the US Joint Venture.
"Landlord Waiver" means, as to any leasehold interest, a
lessor estoppel, waiver and consent certificate executed by the
landlord of such leasehold interest, in each case in form and substance
satisfactory to the Agent.
"LC Account Agreement" means that certain LC Account Agreement
dated as of the Original Closing Date between the Borrower and the
Agent, as amended, modified or supplemented from time to time.
"Lending Party" means, collectively, the Agent and each
Lender.
"Letter of Credit" means a standby or commercial letter of
credit issued by the Issuing Bank pursuant to ARTICLE III hereof for
the account of the Borrower in favor of a Person advancing credit or
securing an obligation on behalf of the Borrower.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
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"Letter of Credit Facility" means the facility described in
ARTICLE III hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment minus outstanding Reimbursement Obligations.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Line of Business Transfer" means the transfer of the
Transferred Business to Borrower by GenCorp on the Original Closing
Date.
"Line of Business Transfer Documents" means all documentation
(including all schedules and exhibits thereto) relating to the Line of
Business Transfer, including without limitation the Distribution
Agreement.
"Liquidity Termination Date" shall have the meaning given
thereto in the Receivables Purchase Agreement.
"Loan Documents" means this Agreement, the Notes, the
Security Instruments, the Facility Guaranties, the LC Account
Agreement, the Securitization Intercreditor Agreement, the Applications
and Agreements for Letter of Credit, and all other instruments and
documents heretofore or hereafter executed or delivered to or in favor
of any Lender (including the Issuing Bank) or the Agent in connection
with the Loans made and transactions contemplated under this Agreement,
as the same may be amended, supplemented, modified, amended and
restated, substituted or replaced from time to time.
"Loans" means, collectively, the Swing Line Loan and the
Revolving Loans.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations, or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole, (ii)
the ability of any Credit Party to pay or perform its respective
obligations, liabilities and indebtedness under the Loan Documents as
such payment or performance becomes due in accordance with the terms
thereof, or (iii) the rights, powers and remedies of the Agent or any
Lender under any Loan Document or the validity, legality or
enforceability thereof.
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"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgaged Property" means, collectively, (i) the real
property and leasehold interests described on SCHEDULE 5.4, and the
improvements, fixtures and other items of real and personal property
related thereto and the products thereof of the Borrower and its
Domestic Subsidiaries (other than the Securitization Subsidiary) which
are subject to a Mortgage on the Closing Date pursuant to SECTION 5.4
or thereafter pursuant to SECTION 7.3(h), and (ii) thereafter, any of
such property owned, acquired or leased by the Borrower or any Domestic
Subsidiary (other than Sales Offices), including any Subsidiary that is
or is required to become a Guarantor after the Closing Date pursuant to
SECTION 9.18, which has a fair market value in excess of $250,000
(treating, for purposes of such value calculation, contiguous, adjacent
or functionally interrelated parcels in close geographic proximity as a
single property).
"Mortgages" means, collectively, all mortgages, leasehold
mortgages, deeds of trust and deeds to secure debt substantially in the
form of EXHIBIT M-1 or EXHIBIT M-2 granting a Lien by the Borrower or
any other Credit Party to the Agent (or a trustee for the benefit of
the Agent) for the benefit of the Agent and the Lenders in Collateral
therein described as collateral security for the Obligations, and if
applicable, the Guarantors' Obligations with respect thereto, as such
documents may be amended, supplemented or restated from time to time.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
"Net Proceeds" means cash payments received by the Borrower or
any Subsidiary from any (i) public or private offering of any security,
or (ii) any issuance of subordinated Indebtedness pursuant to SECTION
10.5(a)(VIII), in each case as and when received, net of all legal,
accounting, banking and underwriting fees and expenses, commissions,
discounts and other issuance expenses incurred in connection therewith
and all taxes required to be paid or accrued as a consequence of such
issuance.
"Notes" means, collectively, the Swing Line Note and the
Revolving Notes.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, (iii)
all liabilities of Borrower or any Subsidiary to any Lender (or any
affiliate of any Lender)
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which arise under a Swap Agreement, and (iv) the payment and
performance of all other obligations, liabilities and Indebtedness of
the Borrower to the Lenders (including the Issuing Bank), the Agent or
BAS hereunder, under any one or more of the other Loan Documents or
with respect to the Loans.
"OMNOVA Brazil" means OMNOVA Solutions de Brasil Ltda., a
Brazilian limited liability partnership.
"OMNOVA Spain" means OMNOVA Performance Chemicals, S.A., a
Spanish public limited company.
"One-Time Expense" means the one-time, non-recurring expense
of the Borrower in the amount of $3,700,000 incurred during the fiscal
quarter of the Borrower ending November 30, 2000.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Original Closing Date" means the closing date of the Existing
Agreement, which occurred on September 30, 1999.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, Swing Line Outstandings and Revolving Credit
Outstandings on such date.
"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof and (ii) with
respect to any Lender (other than Bank of America) and a Swing Line
Loan, the extension of credit represented by the participation of such
Lender hereunder in the liability of Bank of
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America in respect of a Swing Line Loan made by Bank of America in
accordance with the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time within the previous six (6) years been maintained by the
Borrower for the employees of the Borrower or any current or former
ERISA Affiliate.
"Permitted Asset Securitization" means the securitization of
accounts receivable of the Borrower or its Subsidiaries pursuant to the
terms of the Securitization Documents, the Securitization Outstandings
with respect to which shall not exceed $60,000,000 during the term of
this Agreement.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pledge Agreement" means, collectively (or individually as the
context may indicate), (i) that certain Securities Pledge Agreement
(Borrower) dated as of the Closing Date by and between the Borrower and
the Agent for the benefit of the Agent and the Lenders, (ii) that
certain Mortgage Of Shares dated as of the Closing Date by OMNOVA
Wallcovering (USA), Inc. for the benefit of the Agent and the Lenders
with respect to the equity interests in the UK Subsidiary, (iii) an
agreement or instrument delivered pursuant to SECTION 7.3(j) with
respect to the shares of OMNOVA Brazil, and (iv) any additional
Securities Pledge Agreement (and any other agreement or instrument
determined by the Agent to be applicable to the pledge of Subsidiary
Securities of any Direct Foreign Subsidiary) delivered to the Agent
pursuant to SECTION 5.1 and SECTION 9.18, in each case as any of them
are hereafter amended, modified, supplemented (including by Pledge
Agreement Supplement) or amended and restated from time to time.
"Pledge Agreement Supplement" means, (i) with respect to each
Pledge Agreement pledging the Subsidiary Securities of a Domestic
Subsidiary, the Pledge Agreement Supplement in the form affixed as an
exhibit to such Pledge Agreement, and (ii) with respect to each Pledge
Agreement pledging the Subsidiary Securities of a Direct Foreign
Subsidiary pursuant to the laws of the country of formation of such
Direct Foreign Subsidiary, such supplement or new Pledge Agreement as
is determined to be necessary or appropriate by the Agent.
"Pledged Interests" means the Subsidiary Securities required
to be pledged as Collateral pursuant to ARTICLE V, SECTION 9.18 or the
terms of any Pledge Agreement.
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"Potential Amortization Event" shall have the meaning given
thereto in the Receivables Purchase Agreement.
"Potential Termination Event" shall have the meaning given
thereto in the Receivables Sales Agreement.
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
"Principal Office" means the principal office of Bank of
America, presently located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Credit Services West, or such
other office and address as the Agent may from time to time designate.
"Proxy Statement" means the definitive proxy statement first
mailed by GenCorp to its shareholders on or about July 7, 1999
describing the Spinoff and soliciting such shareholder vote to proceed
therewith.
"Purchase Price" shall have the meaning given thereto in the
Receivables Purchase Agreement.
"Rate Hedging Obligations" means, without duplication, any and
all obligations of the Borrower or any Subsidiary, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; (ii) all other
"derivative instruments" as defined in FASB 133 and which are subject
to the reporting requirements of FASB 133; and (iii) any and all
cancellations, buybacks, reversals, terminations or assignments of any
of the foregoing.
"Real Property Support Documents" means for each Mortgaged
Property, (i) the Title Policy pertaining thereto, (ii) such surveys,
flood hazard certifications, and environmental assessments thereof as
the Agent may require prepared by recognized experts in their
respective fields selected by the Borrower and reasonably satisfactory
to the Agent, (iii) as to Mortgaged Property located in a flood hazard
area, such flood hazard insurance as the Agent may require, (iv) such
Landlord Waivers as the Agent may require, (v) with respect to
facilities leased or subleased to third parties (other than each
individual property (determined for this purpose in the same manner as
provided in the definition of "Mortgaged Property") leased for less
than $250,000 per Fiscal Year), such
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lessees' estoppel, waiver and consent certificates and subordination,
nondisturbance and attornment agreements as the Agent may require, (vi)
such owner's or lessee's affidavits as the Agent may require, (vii)
such opinions of local counsel with respect to the Mortgages as the
Agent may require, and (viii) such other documentation as the Agent may
reasonably require, in each case as shall be in form and substance
reasonably acceptable to the Agent.
"Receivables Amendment Agreement" means that certain Amendment
Agreement dated as of April 12, 2001, by and among the Borrower, the
Securitization Subsidiary, Falcon Asset Securitization Corporation,
Bank One, N.A., and the other financial institutions party to the
Receivables Purchase Agreement, amending the Receivables Purchase
Agreement and the Receivables Sales Agreement that, among other things,
permits the pledge of the stock of the Securitization Subsidiary to the
Agent for the benefit of the Lenders, reduces the maximum amount of the
securitization of certain accounts receivable of the Borrower to
$60,000,000, and extends the termination of the Receivables Purchase
Agreement to a date not earlier than the date that is one year after
the effective date of the Receivables Amendment Agreement, in form and
substance satisfactory to the Agent and the Lenders.
"Receivables Facility Termination Date" shall have the meaning
given to the term "Facility Termination Date" in the Receivables
Purchase Agreement.
"Receivables Purchase Agreement" means that certain
Receivables Purchase Agreement dated as of May 1, 2000, by and among
the Securitization Subsidiary as seller, the Borrower as servicer,
Falcon Asset Securitization Corporation, Bank One, N.A. (Main Office
Chicago), as agent, and the other financial institutions party thereto,
relating to the securitization of certain accounts receivable of the
Borrower, as amended by the Receivables Amendment Agreement.
"Receivables Sales Agreement" means that certain Receivables
Sales Agreement dated as of May 1, 2000, by and between the Borrower
and the Securitization Subsidiary, relating to the securitization of
certain accounts receivable of the Borrower, as amended by the
Receivables Amendment Agreement.
"Receivables Termination Event" shall have the meaning given
to the term "Termination Event" in the Receivables Sales Agreement.
"Registrar" means, with respect to any Subsidiary Securities,
any Person authorized or obligated to maintain records of the
registration of ownership or transfer of ownership of interests in such
Subsidiary Securities, and in the event no such Person shall have been
expressly designated by the related Subsidiary, shall mean (i) as to
any corporation or limited liability company, its Secretary (or
comparable officer), and (ii) as to any partnership, its general
partner (or managing general partner if one shall have been appointed).
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"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to SECTION 2.1(c)(iii)) for amounts
theretofore paid by the Issuing Bank pursuant to a drawing under such
Letter of Credit.
"Related LC Documents" has the meaning therefor provided in
SECTION 3.2(i)(i).
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or ▇▇▇▇▇'▇ or "A-1" by
S&P or "P-1" by ▇▇▇▇▇'▇.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating greater than 50%
of the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "CREDIT EXPOSURE"
of each Lender shall be equal at all times (a) other than following the
occurrence and during the continuance of an Event of Default, to its
Revolving Credit Commitment, and (b) following the occurrence and
during the continuance of an Event of Default, to the sum of (i) the
aggregate principal amount of such Lender's Applicable Commitment
Percentage of Revolving Credit Outstandings plus (ii) the amount of
such Lender's Applicable Commitment Percentage of Letter of Credit
Outstandings and Swing Line Outstandings; PROVIDED that, for the
purpose of this definition only, (a) if any Lender shall have failed to
fund its Applicable Commitment Percentage of any Advance, then the
Revolving Credit Commitment of such Lender shall be deemed reduced by
the amount it so failed to fund for so long as such failure shall
continue and such Lender's Credit Exposure attributable to such failure
shall be deemed held by any Lender making more than its Applicable
Commitment Percentage of such Advance to the extent it covers such
failure, (b) if any Lender shall have failed to pay to the Issuing Bank
upon demand its Applicable Commitment Percentage of any drawing under
any Letter of Credit resulting in an outstanding Reimbursement
Obligation (whether by funding its Participation therein or otherwise),
such Lender's Credit Exposure attributable to all Letter of Credit
Outstandings shall be deemed to be held by the Issuing Bank until such
Lender shall pay such deficiency amount to the Issuing Bank together
with interest thereon as provided in SECTION 4.9 and (c) if any Lender
shall have failed to pay to Bank of America on demand its Applicable
Commitment Percentage of any Swing Line Loan (whether by funding its
Participation therein or otherwise), such Lender's Credit Exposure
attributable to all Swing Line Outstandings shall be deemed to be held
by Bank of America until such Lender shall pay such deficiency amount
to Bank of America together with interest thereon as provided in
SECTION 4.9.
"Requirements of Law" means, with respect to a Person, the
charter and bylaws or other organizational or governing documents of
such Person, and any law, treaty, rule, regulation, right, privilege,
qualification, license or franchise or final and nonappealable
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determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or to
which any of its property is subject or pertaining to any or all of the
transactions contemplated or referred to herein.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurodollar Rate Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Responsible Officer" means the Chief Executive
Officer, the Chief Financial Officer, any Senior Vice President, the
Secretary or the Treasurer of the Borrower.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Borrower or any of its Subsidiaries (other than those
payable or distributable solely to the Borrower) now or hereafter
outstanding, except a dividend payable solely in shares of a class of
stock to the holders of that class; (b) any redemption, conversion,
exchange, retirement or similar payment, purchase or other acquisition
for value, direct or indirect, of any shares of any class of stock of
Borrower or any of its Subsidiaries (other than those payable or
distributable solely to the Borrower) now or hereafter outstanding; (c)
any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any
class of stock of Borrower or any of its Subsidiaries now or hereafter
outstanding.
"Restructuring Addback" means, for any period of measurement
thereof and only to the extent otherwise deducted in arriving at
Consolidated Net Income for such period, an amount equal to the sum of
(i) any Restructuring Charge applicable to such measurement period, and
(ii) for any applicable period of measurement that includes the fiscal
quarter of the Borrower ending November 30, 2000, the One-Time Expense.
"Restructuring Charge" means the total amount, not to exceed
$20,000,000 in the aggregate, of (i) cash expenses (not to exceed
$5,500,000 in the aggregate) paid by the Borrower or one or more of its
Subsidiaries, and (ii) non-cash restructuring charges incurred during
the fiscal quarter ending May 31, 2001 by the Borrower or one or more
of its Subsidiaries, in each case relating to the discontinuation of
certain operations of certain Subsidiaries of the Borrower and similar
restructuring items, all determined on a consolidated basis in
accordance with GAAP applied on Consistent Basis.
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"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
SECTION 2.1 hereof providing for Loans to the Borrower by the Lenders
in the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to SECTION 11.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings, Swing Line Outstandings and
Letter of Credit Outstandings and cancellation of all Letters of
Credit, together with all accrued and unpaid interest thereon.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with SECTION 2.1.
"Revolving Notes" means, collectively, the amended and
restated promissory notes of the Borrower evidencing Revolving Loans
executed and delivered to the Lenders as provided in SECTION 2.3
substantially in the form of EXHIBIT F-1, with appropriate insertions
as to amounts, dates and names of Lenders.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇.
"Sale-Leaseback Transaction" means any arrangement or
arrangements with any Person providing for the leasing by the Borrower
or any Subsidiary of real or personal property, whether now owned or
hereafter acquired in a single transaction or series of transactions,
which has been or is to be sold or transferred by the Borrower or any
Subsidiary to the Person leasing such property to the Borrower or any
Subsidiary or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such property or rental
obligations of the Borrower or any Subsidiary.
"Sales Offices" means locations of the Borrower or any
Domestic Subsidiary (i) the exclusive function of which is the
performance of sales, marketing or design functions, and (ii) at which
no Collateral is located other than routine office furnishings and
equipment.
"Securitization Accounts" means any and all now or hereafter
existing accounts receivable of the Borrower or any Subsidiary that are
sold or otherwise transferred to the Securitization Subsidiary or
another entity in connection with a Permitted Asset
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Securitization pursuant to the terms of the Securitization Documents;
PROVIDED, HOWEVER, that "Securitization Assets" shall not include (i)
any account receivable repurchased by or otherwise returned to the
Borrower or any Subsidiary pursuant to the terms of the Securitization
Documents, (ii) any cash proceeds or other assets received by the
Borrower or any Subsidiary in connection with the sale or transfer of
such accounts receivable, or (iii) any interest the Borrower or any
Subsidiary (other than the Securitization Subsidiary) may have in any
residual interest of any account receivable sold or transferred in
connection with a Permitted Asset Securitization.
"Securitization Documents" means each of the Receivables
Purchase Agreement, the Receivables Sales Agreement, the Receivables
Amendment Agreement, the Securitization Intercreditor Agreement and all
other documents executed and delivered pursuant thereto and related to
the securitization of certain accounts receivable of the Borrower, each
as in effect as delivered to the Agent on the Closing Date, as each may
be amended or modified in accordance with SECTION 10.19.
"Securitization Intercreditor Agreement" means that certain
Intercreditor Agreement by and between Bank One, N.A., as the agent for
the other financial institutions party to the Receivables Purchase
Agreement, and the Agent, for the benefit of the Agent and the Lenders,
dated as of the Closing Date.
"Securitization Outstandings" means, at any time, the
aggregate Purchase Price outstanding under the Receivables Purchase
Agreement, which has been received by the Borrower in connection with
the sale of accounts receivable of the Borrower to the Securitization
Subsidiary pursuant to the terms of the Receivables Sales Agreement, in
an aggregate amount not in excess of $60,000,000 at any time.
"Securitization Subsidiary" means, so long as its sole purpose
and activity is to purchase accounts receivable from the Borrower and
transfer these receivables to a trust in connection with a Permitted
Asset Securitization, OMNOVA Receivables Corporation, an Ohio
corporation.
"Security Agreement" means, collectively (or individually as
the context may indicate), (i) the Security Agreement dated as of the
Closing Date by the Borrower and each of the Guarantors to the Agent
for the benefit of the Agent and the Lenders, and (ii) any additional
Security Agreement delivered to the Agent pursuant to SECTION 9.18, as
each may hereafter be modified, amended, supplemented or amended and
restated from time to time.
"Security Instruments" means, collectively, the Pledge
Agreements, the Security Agreements, the Intellectual Property Security
Agreements, the Intellectual Property Assignments, the Mortgages, and
all other agreements (including control agreements), instruments and
other documents, whether now existing or hereafter in effect, pursuant
to which the Borrower or any Subsidiary or other Person shall grant or
convey to the Agent or the Lenders, or a trustee for the benefit of the
Agent and the Lenders, a Lien in, or any other Person shall acknowledge
any such Lien in, property as security for payment of all
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or any portion of the Obligations or any other obligation under any
Loan Document, as any of them may be amended, modified, supplemented or
amended and restated from time to time.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly basis) is in
excess of the total amount of its liabilities, including Contingent
Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Spinoff" means the special dividend of all outstanding shares
of capital stock of the Borrower to the holders of the outstanding
shares of GenCorp Common Stock on a pro rata basis and on the basis of
one share of common stock of the Borrower for each share of common
stock of GenCorp, all as described in the Proxy Statement.
"Spinoff Documents" means (i) the Proxy Statement, (ii) the
Registration Statement of the Borrower on Form 10, including all
amendments thereto, initially filed on July 9, 1999 with the Securities
and Exchange Commission and (iii) all other documentation (including
all schedules and exhibits thereto) relating to the Spinoff, including
without limitation the Tax Matters Agreement, the Employee Matters
Agreement and the Transition Services Agreement.
"Stated Termination Date" means September 30, 2004.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding Voting Securities or more than 50% of
all equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries.
"Subsidiary Securities" means the shares of capital stock or
the other equity interests issued by or equity participations in any
Subsidiary, whether or not constituting a "security" under Article 8 of
the Uniform Commercial Code as in effect in any jurisdiction.
"Swap Agreement" means one or more agreements between the
Borrower and any Lender or any affiliate of any Lender with respect to
Indebtedness evidenced by any or all of the Notes, on terms mutually
acceptable to Borrower and such Person, which agreements create Rate
Hedging Obligations.
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"Swing Line" means the revolving line of credit established by
Bank of America in favor of the Borrower pursuant to SECTION 2.4.
"Swing Line Loans" means loans made by Bank of America to the
Borrower pursuant to SECTION 2.4.
"Swing Line Note" means the amended and restated promissory
note of the Borrower evidencing the Swing Line executed and delivered
to Bank of America as provided in SECTION 2.3 substantially in the form
of EXHIBIT F-2.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Tax Matters Agreement" means the Tax Sharing Agreement dated
as of September 30, 1999 between GenCorp and the Borrower providing for
matters regarding Federal, state, local and foreign tax liabilities for
periods prior to and including the effective date of the Spinoff.
"Taxes" has the meaning therefor provided in SECTION 6.6(a).
"Termination Event" means, other than the reorganization of
any Employee Benefit Plan in connection with the Spinoff or Line of
Business Transfer, (i) a "Reportable Event" described in Section 4043
of ERISA and the regulations issued thereunder (unless the notice
requirement has been waived by applicable regulation); or (ii) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan
during a plan year in which it was a "substantial employer" as defined
in Section 4001(a)(2) of ERISA or was deemed such under Section 4062(e)
of ERISA; or (iii) the termination of a Pension Plan, the filing of a
notice of intent to terminate a Pension Plan or the treatment of a
Pension Plan amendment as a termination under Section 4041 of ERISA; or
(iv) the institution of proceedings to terminate a Pension Plan by the
PBGC; or (v) any other event or condition which would constitute
grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; or (vi) the
partial or complete withdrawal of the Borrower or any ERISA Affiliate
from a Multiemployer Plan; or (vii) the imposition of a Lien pursuant
to Section 412 of the Code or Section 302 of ERISA; or (viii) any event
or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Section 4241 or Section 4245 of ERISA,
respectively; or (ix) any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by the PBGC of proceedings to terminate a Multiemployer
Plan under Section 4042 of ERISA; or (x) any event or condition with
respect to any Employee Benefit Plan which is regulated by any Foreign
Benefit Law that results in the termination of such Employee Benefit
Plan or the revocation of such Employee Benefit Plan's authority to
operate under the applicable Foreign Benefit Law.
"Title Policy" means, with respect to each Mortgaged Property,
the mortgagee title insurance policy (together with such endorsements
as the Agent may reasonably
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require) issued to the Agent in respect of such Mortgaged Property by
an insurer selected by the Borrower and reasonably acceptable to the
Agent, insuring (in an amount satisfactory to the Agent) the Lien of
the Agent for the benefit of the Agent and the Lenders on such
Mortgaged Property to be duly perfected and of first priority, subject
only to such exceptions as shall be acceptable to the Agent.
"Total Letter of Credit Commitment" means an amount not to
exceed $25,000,000.
"Total Revolving Credit Commitment" means a principal amount
equal to $240,000,000, as reduced from time to time in accordance with
SECTIONS 2.1(e) and (f).
"Transaction Documents" means, collectively, or individually
as the context may dictate, the Loan Documents, the Spinoff Documents
and the Line of Business Transfer Documents.
"Transferred Business" means the assets, liabilities and
operations of the Performance Chemicals and Decorative & Building
Products businesses of GenCorp immediately prior to the Line of
Business Transfer and includes the GenCorp Technology Center, corporate
flight operations of GenCorp, the GenCorp corporate headquarters
building in Fairlawn, Ohio and the tangible and intangible assets owned
and leased for such businesses.
"Transition Services Agreement" means the Services and Support
Agreement dated as of September 30, 1999 between GenCorp and the
Borrower providing for certain transitional administrative services and
for reimbursement of all direct and indirect costs of providing such
services.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"UK Subsidiary" means OMNOVA Wallcovering (UK) Limited, a
United Kingdom limited company.
"US Joint Venture" means Muraspec N.A. LLC, a Delaware limited
liability company of which, as of the Closing Date, the Borrower is the
owner of 50.1% of the membership interests.
"US Joint Venture Documents" means the Organizational
Documents and the Operating Documents relating to the US Joint Venture,
as in effect (including all amendments and modifications thereto) on
the Closing Date.
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons
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performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
"Waiver Letter" has the meaning given thereto in the preamble
hereto.
1.3. RULES OF INTERPRETATION.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Articles 1, 8 or 9 of the Ohio
Uniform Commercial Code, as in effect from time to time, shall have the
meaning given therein unless otherwise defined herein, except to the
extent that the Uniform Commercial Code of another jurisdiction is
controlling, in which case such terms shall have the meaning given in
the Uniform Commercial Code of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any
Loan Document to articles, sections, paragraphs, clauses, annexes,
appendices, exhibits and schedules are references to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules in or to such Loan Document.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and vice versa, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and for purposes
hereof the rule of ejusdem generis shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
(h) Except as otherwise expressly provided, all dates and
times of day specified herein shall refer to such dates and times at
Chicago, Illinois.
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(i) Whenever interest rates or fees are established in whole
or in part by reference to a numerical percentage expressed as "___%",
such arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
(j) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(k) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
1.4 ACCOUNTING FOR ACQUISITIONS.
With respect to any Acquisition consummated on or after the Closing
Date and prior to the Facility Termination Date in accordance with SECTION 10.2
hereof, the following shall apply:
(a) As to each Acquisition that is accounted for as a
"purchase," for each of the four Four-Quarter Periods ending next
following the date of such Acquisition, (i) Consolidated EBITDA shall
include the results of operations of the Person or assets so acquired
on a historical pro forma basis as if such Acquisition had been
consummated as a "pooling of interests" but (ii) for purposes of
determining compliance with the provisions of SECTION 10.1(c), any
increase in Consolidated Net Income resulting solely from such pro
forma treatment of such Acquisition shall be disregarded; and
(b) For each of the four Four-Quarter Periods ending next
following the date of each Acquisition, Consolidated Interest Expense
and Consolidated Cash Interest Expense shall include the results of
operations of the Person or assets so acquired, which amounts shall be
determined on a historical pro forma basis as if such Acquisition had
been consummated as a "pooling of interests;" provided, however,
Consolidated Interest Expense and Consolidated Cash Interest Expense
shall be adjusted on a historical pro forma basis to (i) eliminate cash
interest expense accrued during such period on any Indebtedness repaid
in connection with such Acquisition and (ii) include cash interest
expense on any Indebtedness (including Indebtedness hereunder)
incurred, acquired or assumed in connection with such Acquisition
("Incremental Debt") calculated (x) as if all such Incremental Debt had
been incurred as of the first day of such Four-Quarter Period and (y)
at the following interest rates: (i) for all periods subsequent to the
date of the Acquisition and for Incremental Debt assumed or acquired in
the Acquisition and in effect prior to the date of Acquisition, at the
actual rates of interest applicable thereto, and (ii) for all periods
prior to the actual incurrence of such Incremental Debt, equal to the
average daily rate of interest actually applicable to such Incremental
Debt hereunder or under other financing documents applicable thereto as
at the end of each affected Four-Quarter Period, as the case may be.
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ARTICLE II
THE CREDIT FACILITIES
---------------------
2.1. REVOLVING LOANS.
(a) COMMITMENT. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the
Borrower under the Revolving Credit Facility from time to time from the
Closing Date until the Revolving Credit Termination Date on a pro rata
basis as to the total borrowing requested by the Borrower on any day
determined by such Lender's Applicable Commitment Percentage up to but
not exceeding the Revolving Credit Commitment of such Lender, PROVIDED,
however, that the Lenders will not be required and shall have no
obligation to make any such Advance (i) so long as a Default or an
Event of Default has occurred and is continuing or (ii) if the Agent
has accelerated the maturity of any of the Notes as a result of an
Event of Default; PROVIDED further, however, that immediately after
giving effect to each such Advance, the amount of Revolving Credit
Outstandings plus Letter of Credit Outstandings plus Swing Line
Outstandings shall not exceed the Total Revolving Credit Commitment.
Within such limits and subject to the other terms and conditions of
this Agreement, the Borrower may borrow, repay and reborrow under the
Revolving Credit Facility on a Business Day from the Closing Date
until, but (as to borrowings and reborrowings) not including, the
Revolving Credit Termination Date.
(b) AMOUNTS. Except as otherwise permitted by the Lenders from
time to time, the amount of Revolving Credit Outstandings plus Letter
of Credit Outstandings plus Swing Line Outstandings shall not exceed at
any time the Total Revolving Credit Commitment, and, in the event there
shall be outstanding any such excess, the Borrower shall immediately
make such payments and prepayments as shall be necessary to comply with
this restriction. Each Advance under the Revolving Credit Facility,
other than Base Rate Refunding Loans, shall be in an amount of at least
$5,000,000, and, if greater than $5,000,000, an integral multiple of
$1,000,000.
(c) ADVANCES.
(i) An Authorized Representative shall give the Agent
(1) at least three (3) Business Days' irrevocable telephonic
notice of each Eurodollar Rate Loan (whether representing an
additional borrowing or the Continuation of a borrowing
hereunder or the Conversion of a borrowing hereunder from a
Base Rate Loan to a Eurodollar Rate Loan) prior to 11:00 A.M.
and (2) irrevocable telephonic notice of each Base Rate Loan
(other than Base Rate Refunding Loans to the extent the same
are effected without notice pursuant to SECTION 2.1(c)(iii)
and whether representing an additional borrowing hereunder or
the Conversion of borrowing hereunder from Eurodollar Rate
Loans to Base Rate Loans) prior to 11:00 A.M. on the day of
such proposed Revolving Loan. Each such notice shall be
effective upon receipt by the Agent, shall specify the amount
of the borrowing, the type of Revolving Loan (Base Rate or
Eurodollar Rate), the date of borrowing
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and, if a Eurodollar Rate Loan, the Interest Period to be used
in the computation of interest. The Authorized Representative
shall provide the Agent written confirmation of each such
telephonic notice in the form of a Borrowing Notice or
Interest Rate Selection Notice (as applicable) with
appropriate insertions but failure to provide such
confirmation shall not affect the validity of such telephonic
notice. Notice of receipt of such Borrowing Notice or Interest
Rate Selection Notice, as the case may be, together with the
amount of each Lender's portion of an Advance requested
thereunder, shall be provided by the Agent to each Lender by
telefacsimile transmission with reasonable promptness, but
(provided the Agent shall have received such notice by 10:30
A.M.) not later than 1:00 P.M. on the same day as the Agent's
receipt of such notice.
(ii) Not later than 2:00 P.M. on the date specified
for each borrowing under this SECTION 2.1, each Lender shall,
pursuant to the terms and subject to the conditions of this
Agreement, make the amount of the Advance or Advances to be
made by it on such day available by wire transfer to the Agent
in the amount of its pro rata share, determined according to
such Lender's Applicable Commitment Percentage of the
Revolving Loan or Revolving Loans to be made on such day. Such
wire transfer shall be directed to the Agent at the Principal
Office and shall be in the form of Dollars constituting
immediately available funds. The amount so received by the
Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by delivery of
the proceeds thereof to the Borrower's Account or otherwise as
shall be directed in the applicable Borrowing Notice by the
Authorized Representative and reasonably acceptable to the
Agent.
(iii) Notwithstanding the foregoing, if a drawing is
made under any Letter of Credit, such drawing is honored by
the Issuing Bank, and the Borrower shall not immediately fully
reimburse the Issuing Bank in respect of such drawing from
other funds available to the Borrower, (a) provided that the
conditions to making a Revolving Loan as herein provided shall
then be satisfied, the Reimbursement Obligation arising from
such drawing shall be paid to the Issuing Bank by the Agent
without the requirement of notice to or from the Borrower from
immediately available funds which shall be advanced as a Base
Rate Refunding Loan to the Agent at its Principal Office by
each Lender under the Revolving Credit Facility in an amount
equal to such Lender's Applicable Commitment Percentage of
such Reimbursement Obligation, and (b) if the conditions to
making a Revolving Loan as herein provided shall not then be
satisfied, each of the Lenders shall fund by payment to the
Agent (for the benefit of the Issuing Bank) at its Principal
Office in immediately available funds the purchase from the
Issuing Bank of their respective Participations in the related
Reimbursement Obligation based on their respective Applicable
Commitment Percentages of the Total Letter of Credit
Commitment. If a drawing is presented under any Letter of
Credit in accordance with the terms thereof and the Borrower
shall not immediately reimburse the Issuing Bank in respect
thereof, then notice of such drawing or payment shall be
provided promptly by the Issuing Bank to the
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Agent and the Agent shall provide notice to each Lender by
telephone or telefacsimile transmission. If notice to the
Lenders of a drawing under any Letter of Credit is given by
the Agent at or before 12:00 noon on any Business Day, each
Lender shall either make a Base Rate Refunding Loan or fund
the purchase of its Participation as specified above in the
amount of such Lender's Applicable Commitment Percentage of
such drawing or payment and shall pay such amount to the Agent
for the account of the Issuing Bank at the Principal Office in
Dollars and in immediately available funds before 2:30 P.M. on
the same Business Day. If such notice to the Lenders is given
by the Agent after 12:00 noon on any Business Day, each Lender
shall either make such Base Rate Refunding Loan or fund such
purchase before 12:00 noon on the next following Business Day.
(d) REPAYMENT OF REVOLVING LOANS. The principal amount of each
Revolving Loan shall be due and payable to the Agent for the benefit of
each Lender in full on the Revolving Credit Termination Date, or
earlier as specifically provided herein. The principal amount of any
Revolving Loan may be prepaid in whole or in part on any Business Day,
upon (a) at least three (3) Business Days' irrevocable telephonic
notice, in the case of each Revolving Loan that is a Eurodollar Rate
Loan, from an Authorized Representative (effective upon receipt) to the
Agent prior to 11:00 A.M. and (b) irrevocable telephonic notice, in the
case of each Revolving Loan that is a Base Rate Loan, from an
Authorized Representative (effective upon receipt) to the Agent prior
to 11:00 A.M. on the day of such proposed repayment. The Authorized
Representative shall provide the Agent written confirmation of each
such telephonic notice but failure to provide such confirmation shall
not effect the validity of such telephonic notice. All prepayments of
Revolving Loans made by the Borrower shall be in the amount of
$5,000,000 or such greater amount which is an integral multiple of
$1,000,000, or the amount equal to all Revolving Credit Outstandings,
or such other amount as necessary to comply with SECTION 2.1(b).
(e) OPTIONAL REDUCTIONS. The Borrower shall, by notice from an
Authorized Representative, have the right from time to time but not
more frequently than once each calendar month, upon not less than three
(3) Business Days' written notice to the Agent, effective upon receipt,
to reduce the Total Revolving Credit Commitment. The Agent shall give
each Lender, within one (1) Business Day of receipt of such notice,
telefacsimile notice, or telephonic notice (confirmed in writing), of
such reduction. Each such reduction shall be in the aggregate amount of
$10,000,000 or such greater amount which is in an integral multiple of
$5,000,000, or the entire remaining Total Revolving Credit Commitment,
and shall permanently reduce the Total Revolving Credit Commitment.
Each reduction of the Total Revolving Credit Commitment shall be
accompanied by payment of the Revolving Loans to the extent that the
principal amount of Revolving Credit Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings exceeds the Total Revolving
Credit Commitment after giving effect to such reduction, together with
accrued and unpaid interest on the amounts prepaid.
(f) MANDATORY REDUCTIONS.
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(i) In the event of any private or public offering of
equity securities of the Borrower or any Subsidiary (other
than securities issued to the Borrower or another Subsidiary),
the Total Revolving Credit Commitment shall be permanently
reduced by (i) if the Consolidated Leverage Ratio as of the
date of such issuance is greater than or equal to 3.00 to
1.00, one-hundred percent (100%) of the Net Proceeds of such
issuance of equity securities of the Borrower or any
Subsidiary, and (ii) if the Consolidated Leverage Ratio as of
the date of such issuance is less than 3.00 to 1.00, fifty
percent (50%) of the Net Proceeds of such issuance of equity
securities of the Borrower or any Subsidiary, in each case
including without limitation any security not constituting
Indebtedness exchangeable, exercisable or convertible for or
into equity securities.
(ii) The Borrower shall give written notice to the
Agent of any equity offering described in this SECTION 2.1(f)
not less than five (5) Business Days prior to the closing
thereof, and shall confirm to the Agent the closing thereof by
written, telefacsimile or telephonic notice (confirmed in
writing) on the day of such closing. The Agent shall give each
Lender, within one (1) Business Day of receipt of the notice
of the closing of such equity issuance, notice (whether
written, telefacsimile or telephonic (confirmed in writing)),
of such reduction. Each such reduction of the Total Revolving
Credit Commitment shall be accompanied by payment of the
Revolving Loans to the extent that the principal amount of
Revolving Credit Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings exceeds the Total
Revolving Credit Commitment after giving effect to such
reduction, together with accrued and unpaid interest on the
amounts prepaid, which payment must be made not more than one
(1) Business Day after the receipt of the Net Proceeds by the
Borrower or applicable Subsidiary.
2.2. USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrower for general
working capital needs and other corporate purposes, including the making of
Acquisitions and Capital Expenditures permitted hereunder.
2.3. NOTES.
(a) REVOLVING NOTES. Revolving Loans made by each Lender shall
be evidenced by the Revolving Note payable to the order of such Lender
in the respective amount of its Applicable Commitment Percentage of the
Total Revolving Credit Commitment, which Revolving Note shall be dated
the Closing Date or a later date pursuant to an Assignment and
Acceptance and shall be duly completed, executed and delivered by the
Borrower in substitution for the Existing Notes evidencing the
Revolving Credit Facility under the Existing Agreement.
(b) SWING LINE NOTE. The Swing Line Outstandings shall be
evidenced by a separate Swing Line Note payable to the order of the
Bank of America in the amount of the Swing Line, which Note shall be
dated the Closing Date and shall be duly completed,
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executed and delivered by the Borrower in substitution for the Existing
Notes evidencing the Swing Line under the Existing Agreement.
2.4. SWING LINE.
(a) Notwithstanding any other provision of this Agreement to
the contrary, in order to administer the Revolving Credit Facility in
an efficient manner and to minimize the transfer of funds between the
Agent and the Lenders, Bank of America shall make available Swing Line
Loans to the Borrower prior to the Revolving Credit Termination Date.
Bank of America shall not be obligated to make any Swing Line Loan
pursuant hereto (i) if to the actual knowledge of Bank of America the
Borrower is not in compliance with all the conditions to the making of
Revolving Loans set forth in this Agreement, (ii) if after giving
effect to such Swing Line Loan, the Swing Line Outstandings exceed
$10,000,000, or (iii) if after giving effect to such Swing Line Loan,
the sum of the Swing Line Outstandings, Revolving Credit Outstandings
and Letter of Credit Outstandings exceeds the Total Revolving Credit
Commitment. The Borrower may, subject to the conditions set forth in
the preceding sentence, borrow, repay and reborrow under this SECTION
2.4. Unless notified to the contrary by Bank of America, borrowings
under the Swing Line shall be made in the minimum amount of $1,000,000
or, if greater, in amounts which are integral multiples of $100,000, or
in the amount necessary to effect a Base Rate Refunding Loan, upon
written request by telefacsimile transmission, effective upon receipt,
by an Authorized Representative of the Borrower made to Bank of America
not later than 12:30 P.M. on the Business Day of the requested
borrowing. Each such Borrowing Notice shall specify the amount of the
borrowing and the date of borrowing, and shall be in the form of
EXHIBIT D-2, with appropriate insertions. Unless notified to the
contrary by Bank of America, each repayment of a Swing Line Loan shall
be in an amount which is an integral multiple of $100,000 or the
aggregate amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the
account of Bank of America. Swing Line Loans shall bear interest solely
at the Base Rate or, if applicable, the Default Rate. All accrued and
unpaid interest on Swing Line Loans shall be payable, on the dates and
in the manner provided in SECTION 4.3 with respect to interest on Base
Rate Loans.
(c) Upon the making of a Swing Line Loan, each Lender shall be
deemed to have purchased from Bank of America a Participation therein
in an amount equal to that Lender's Applicable Commitment Percentage of
such Swing Line Loan. Upon demand made by Bank of America, each Lender
shall, according to its Applicable Commitment Percentage of such Swing
Line Loan, promptly provide to Bank of America its purchase price
therefor in an amount equal to its Participation therein. Any Advance
made by a Lender pursuant to demand of Bank of America of the purchase
price of its Participation shall when made be deemed to be (i) provided
that the conditions to making Revolving Loans shall be satisfied, a
Base Rate Refunding Loan under SECTION 2.1, and (ii) in all other
cases, the funding by each Lender of the purchase price of its
Participation in such Swing Line Loan. The obligation of each Lender to
so provide its purchase price to Bank
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of America shall be absolute and unconditional and shall not be
affected by the occurrence of an Event of Default or any other
occurrence or event.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to SECTION 2.1 in an amount sufficient to repay
Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to Bank of America the amount necessary to repay such
Swing Line Outstandings (which Bank of America shall then apply to such
repayment) and credit any balance of the Advance in immediately available funds
in the manner directed by the Borrower pursuant to SECTION 2.1(c)(ii). The
proceeds of such Advances shall be paid to Bank of America for application to
the Swing Line Outstandings and the Lenders shall then be deemed to have made
Loans in the amount of such Advances. The Swing Line shall continue in effect
until the Revolving Credit Termination Date, at which time all Swing Line
Outstandings and accrued interest thereon shall be due and payable in full.
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ARTICLE III
LETTERS OF CREDIT
3.1. LETTERS OF CREDIT. The Issuing Bank agrees, subject to the terms
and conditions of this Agreement, upon request of the Borrower to issue from
time to time for the account of the Borrower Letters of Credit upon delivery to
the Issuing Bank of an Application and Agreement for Letter of Credit relating
thereto in form and content acceptable to the Issuing Bank; PROVIDED, that (i)
the Issuing Bank shall not be obligated to issue any Letter of Credit if it has
been notified by the Agent or has actual knowledge that a Default or Event of
Default has occurred and is continuing, (ii) the Letter of Credit Outstandings
shall not exceed the Total Letter of Credit Commitment and (iii) no Letter of
Credit shall be issued if, after giving effect thereto, Letter of Credit
Outstandings plus Revolving Credit Outstandings plus Swing Line Outstandings
shall exceed the Total Revolving Credit Commitment. No Letter of Credit shall
have an expiry date (including all rights of the Borrower or any beneficiary
named in such Letter of Credit to require renewal) or payment date occurring
later than the seventh Business Day prior to the Stated Termination Date.
3.2. REIMBURSEMENT AND PARTICIPATIONS.
(a) The Borrower hereby unconditionally agrees to pay to the
Issuing Bank immediately on demand at the Principal Office all amounts
required to pay all drafts drawn or purporting to be drawn under the
Letters of Credit and all reasonable expenses incurred by the Issuing
Bank in connection with the Letters of Credit, and in any event and
without demand to place in possession of the Issuing Bank (which shall
include Advances under the Revolving Credit Facility if permitted by
SECTION 2.1 and Swing Line Loans if permitted by SECTION 2.4)
sufficient funds to pay all debts and liabilities arising under any
Letter of Credit. The Issuing Bank agrees to give the Borrower prompt
notice of any request for a draw under a Letter of Credit. The Issuing
Bank may charge any account the Borrower may have with it for any and
all amounts the Issuing Bank pays under a Letter of Credit, plus
charges and reasonable expenses as from time to time agreed to by the
Issuing Bank and the Borrower; provided that to the extent permitted by
SECTION 2.1(c)(iii) and SECTION 2.4, amounts shall be paid pursuant to
Advances under the Revolving Credit Facility or, if the Borrower shall
elect, by Swing Line Loans. The Borrower agrees to pay the Issuing Bank
interest on any Reimbursement Obligations not paid when due hereunder
at the Default Rate.
(b) In accordance with the provisions of SECTION 2.1(c), the
Issuing Bank shall notify the Agent of any drawing under any Letter of
Credit promptly following the receipt by the Issuing Bank of such
drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation
in the liability of the Issuing Bank in respect of each Letter of
Credit in an amount equal to such Lender's Applicable Commitment
Percentage of such liability, and to the extent that the Borrower is
obligated to pay the Issuing Bank under SECTION 3.2(a), each Lender
(other than the Issuing Bank) thereby
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shall absolutely, unconditionally and irrevocably assume, and shall be
unconditionally obligated to pay to the Issuing Bank, its Applicable
Commitment Percentage of the liability of the Issuing Bank under such
Letter of Credit in the manner and with the effect provided in SECTION
2.1(c)(iii).
(d) Simultaneously with the making of each payment by a Lender
to the Issuing Bank pursuant to SECTION 2.1(c)(iii)(b), such Lender
shall, automatically and without any further action on the part of the
Issuing Bank or such Lender, acquire a Participation in an amount equal
to such payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the related
Reimbursement Obligation of the Borrower. Each Lender's obligation to
make payment to the Agent for the account of the Issuing Bank pursuant
to SECTION 2.1(c)(iii) and SECTION 3.2(c), and the right of the Issuing
Bank to receive the same, shall be absolute and unconditional, shall
not be affected by any circumstance whatsoever and shall be made
without any offset, abatement, withholding or reduction whatsoever. In
the event the Lenders have purchased Participations in any
Reimbursement Obligation as set forth above, then at any time payment
(in fully collected, immediately available funds) of such Reimbursement
Obligation, in whole or in part, is received by the Issuing Bank from
the Borrower, the Issuing Bank shall promptly pay to each Lender an
amount equal to its Applicable Commitment Percentage of such payment
from the Borrower.
(e) Promptly upon any issuance of a Letter of Credit or any
amendment to any Letter of Credit, the Issuing Bank shall deliver to
the Agent a copy of such Letter of Credit or amendment. Promptly
following the end of each fiscal quarter of the Borrower, the Issuing
Bank shall deliver to the Agent a notice describing the aggregate
undrawn amount of all Letters of Credit at the end of such quarter.
Upon the request of any Lender from time to time, the Issuing Bank
shall deliver to the Agent, and the Agent shall deliver to such Lender,
any other information reasonably requested by such Lender with respect
to each Letter of Credit outstanding.
(f) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in ARTICLE
VII, be subject to the conditions that such Letter of Credit be in such
form and contain such terms as shall be reasonably satisfactory to the
Issuing Bank consistent with the then current practices and procedures
of the Issuing Bank with respect to similar letters of credit, and the
Borrower shall have executed and delivered such other instruments and
agreements relating to such Letters of Credit as the Issuing Bank shall
have reasonably requested consistent with such practices and
procedures. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits,
1993 revision, International Chamber of Commerce Publication No. 500
or, if the Issuing Bank shall elect by express reference in an affected
Letter of Credit, the International Chamber of Commerce International
Standby Practices commonly referred to as "ISP98", or any subsequent
amendment or revision of either thereof.
(g) The Borrower agrees that the Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of
Credit, any drafts or other
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documents otherwise in order which may be signed or issued by an
administrator, executor, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, liquidator, receiver, attorney
in fact or other legal representative of a party who is authorized
under such Letter of Credit to draw or issue any drafts or other
documents.
(h) Without limiting the generality of the provisions of
SECTION 13.9, the Borrower hereby agrees to indemnify and hold harmless
the Issuing Bank, each other Lender and the Agent from and against any
and all claims and damages, losses, liabilities, reasonable costs and
expenses which the Issuing Bank, such other Lender or the Agent may
incur (or which may be claimed against the Issuing Bank, such other
Lender or the Agent) by any Person by reason of or in connection with
the issuance or transfer of or payment or failure to pay under any
Letter of Credit; provided that the Borrower shall not be required to
indemnify the Issuing Bank, any other Lender or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, (i) caused by the willful misconduct or gross
negligence of the party to be indemnified or (ii) caused by the failure
of the Issuing Bank to pay under any Letter of Credit after the
presentation to it of a request for payment strictly complying with the
terms and conditions of such Letter of Credit, unless such payment is
prohibited by any law, regulation, court order or decree. The
indemnification and hold harmless provisions of this SECTION 3.2(h)
shall survive repayment of the Obligations, occurrence of the Revolving
Credit Termination Date, the Facility Termination Date and expiration
or termination of this Agreement.
(i) Without limiting Borrower's rights as set forth in SECTION
3.2(h), the obligation of the Borrower to immediately reimburse the
Issuing Bank for drawings made under Letters of Credit and the Issuing
Bank's right to receive such payment shall be absolute, unconditional
and irrevocable, and such obligations of the Borrower shall be
performed strictly in accordance with the terms of this Agreement and
such Letters of Credit and the related Application and Agreement for
any Letter of Credit, under all circumstances whatsoever, including the
following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Agent, the Lenders or any other Person, whether in connection
with the Loan Documents, the Related LC Documents or any
unrelated transaction;
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(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter
of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the Agent,
the Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Agent, with or without notice to or approval
by the Borrower in respect of any of Borrower's Obligations
under this Agreement; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing;
provided, however, that nothing contained herein shall be deemed to
release the Issuing Bank or any other Lender of any liability for
actual loss arising as a result of its gross negligence or willful
misconduct; and provided further, however, that to the extent any
conflict exists between this Agreement and any Application and
Agreement for Letters of Credit or other document or agreement required
by the Issuing Bank in connection with the issuance of Letters of
Credit, the terms of this Agreement shall control.
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ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
-------------------------------------------------
4.1. INTEREST RATE OPTIONS. Eurodollar Rate Loans and Base Rate Loans
may be outstanding at the same time and, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower shall have the
option to elect the Type of Loan and the duration of the initial and any
subsequent Interest Periods and to Convert Revolving Loans in accordance with
SECTIONS 2.1(c)(i) and 4.2, as applicable; PROVIDED, HOWEVER, (a) there shall
not be outstanding at any one time Eurodollar Rate Loans having more than eight
(8) different Interest Periods, (b) each Eurodollar Rate Loan (including each
Conversion into and each Continuation as a Eurodollar Rate Loan) shall be in an
amount of $5,000,000 or, if greater than $5,000,000 an integral multiple of
$1,000,000 and (c) no Eurodollar Rate Loan shall have an Interest Period that
extends beyond the Stated Termination Date. If the Agent does not receive a
Borrowing Notice or an Interest Rate Selection Notice giving notice of election
of the duration of an Interest Period or of Conversion of any Loan to or
Continuation of a Loan as a Eurodollar Rate Loan by the time prescribed by
SECTIONS 2.1(c)(i) and 4.2, as applicable, the Borrower shall be deemed to have
elected to obtain or Convert such Loan to (or Continue such Loan as) a Base Rate
Loan until the Borrower notifies the Agent in accordance with SECTION 4.2. The
Borrower shall not be entitled to elect to Continue any Loan as or Convert any
Loan into a Eurodollar Rate Loan if a Default or Event of Default shall have
occurred and be continuing.
4.2. CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. Subject
to the limitations set forth in the definition of "Interest Period" and in
SECTION 4.1 and ARTICLE VI, the Borrower may:
(a) upon delivery of telephonic notice to the Agent (which
shall be irrevocable) on or before 11:00 A.M. on any Business Day,
Convert any Eurodollar Rate Loan to a Base Rate Loan on the last day of
the Interest Period for such Eurodollar Rate Loan; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing, upon delivery of telephonic notice to the
Agent (which shall be irrevocable) on or before 11:00 A.M. three (3)
Business Days' prior to the date of such Conversion or Continuation:
(i) elect a subsequent Interest Period for any
Eurodollar Rate Loan to begin on the last day of the then
current Interest Period for such Eurodollar Rate Loan; or
(ii) Convert any Base Rate Loan to a Eurodollar Rate
Loan on any Business Day.
Each such notice shall be effective upon receipt by the Agent, shall
specify the amount of the Eurodollar Rate Loan affected, and, if a
Continuation as or Conversion into a Eurodollar Rate Loan, the Interest
Period to be used in the computation of interest. The
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Authorized Representative shall provide the Agent written confirmation
of each such telephonic notice in the form of a Borrowing Notice or
Interest Rate Selection Notice (as applicable) with appropriate
insertions but failure to provide such confirmation shall not affect
the validity of such telephonic notice. Notice of receipt of such
Borrowing Notice or Interest Rate Selection Notice, as the case may be,
shall be provided by the Agent to each Lender by telefacsimile
transmission with reasonable promptness, but (provided the Agent shall
have received such notice by 11:00 A.M.) not later than 3:00 P.M. on
the same day as the Agent's receipt of such notice. All such
Continuations or Conversions of Loans shall be effected pro rata based
on the Applicable Commitment Percentages of the Lenders.
4.3. PAYMENT OF INTEREST. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Revolving Loan, commencing on
the first date of such Revolving Loan until such Revolving Loan shall be repaid,
at the applicable Base Rate or Eurodollar Rate as designated by the Borrower in
the related Borrowing Notice or Interest Rate Selection Notice or as otherwise
provided hereunder. Interest on each Revolving Loan shall be paid on the earlier
of (a) in the case of any Base Rate Loan, quarterly in arrears on the last
Business Day of each November, February, May and August, commencing on November
30, 1999, until the Revolving Credit Termination Date, at which date the entire
principal amount of and all accrued interest on the Revolving Loans shall be
paid in full, (b) in the case of any Eurodollar Rate Loan, on last day of the
applicable Interest Period for such Eurodollar Rate Loan and if such Interest
Period extends for more than three (3) months, at intervals of three (3) months
after the first day of such Interest Period, and (c) upon payment in full of the
related Revolving Loan; provided, however, that if any Event of Default shall
occur and be continuing, all amounts outstanding hereunder shall bear interest
thereafter until paid in full at the Default Rate.
4.4. PREPAYMENTS OF EURODOLLAR RATE LOANS. Whenever any payment of
principal shall be made in respect of any Loan hereunder, whether at maturity,
on acceleration, by optional or mandatory prepayment or as otherwise required or
permitted hereunder, with the effect that any Eurodollar Rate Loan shall be
prepaid in whole or in part prior to the last day of the Interest Period
applicable to such Eurodollar Rate Loan, such payment of principal shall be
accompanied by the additional payment, if any, required by SECTION 6.5.
4.5. MANNER OF PAYMENT.
(a) Each payment of principal (including any prepayment) and
payment of interest and fees, and any other amount required to be paid
by or on behalf of the Borrower to the Lenders, the Issuing Bank, the
Agent, or Bank of America with respect to any Loan, Letter of Credit,
Reimbursement Obligation, or Swing Line Loan, shall be made to the
Agent at the Principal Office in Dollars in immediately available funds
without condition or deduction or for any setoff, recoupment, deduction
or counterclaim on or before 12:30 P.M. on the date such payment is
due. The Agent may, but shall not be obligated to, debit the amount of
such payment from any one or more ordinary deposit accounts of the
Borrower with the Agent.
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(b) Any payment made by or on behalf of the Borrower that is
not made both in Dollars in immediately available funds and prior to
12:30 P.M. on the date such payment is to be made shall constitute a
non-conforming payment. Any such non-conforming payment shall not be
deemed to be received until the later of (i) the time such funds become
available funds and (ii) the next Business Day. Any non-conforming
payment may constitute or become a Default or Event of Default as
otherwise provided herein. Interest shall continue to accrue at the
Default Rate on any principal or fees as to which no payment or a
non-conforming payment is made from the date such amount was due and
payable until the later of (i) the date such funds become available
funds or (ii) the next Business Day.
(c) In the event that any payment hereunder or under any of
the Notes becomes due and payable on a day other than a Business Day,
then such due date shall be extended to the next succeeding Business
Day unless provided otherwise under the definition of "Interest
Period"; PROVIDED, however, that interest shall continue to accrue
during the period of any such extension; and PROVIDED further, however,
that in no event shall any such due date be extended beyond the
Revolving Credit Termination Date.
4.6. FEES.
(a) UNUSED FEE. Until (and including) the Revolving Credit
Termination Date, the Borrower agrees to pay to the Agent, for the pro
rata benefit of the Lenders based on their Applicable Commitment
Percentages, a commitment fee equal to the Applicable Unused Fee
multiplied by the average daily amount by which the Total Revolving
Credit Commitment exceeds the sum of (i) Revolving Credit Outstandings
without giving effect to Swing Line Outstandings plus (ii) Letter of
Credit Outstandings. Such fees shall be due in arrears on the last
Business Day of each November, February, May and August, commencing
November 30, 1999 to and on the Revolving Credit Termination Date.
Notwithstanding the foregoing, so long as any Lender fails to make
available any portion of its Revolving Credit Commitment when required
to do so in accordance with the terms hereof, such Lender shall not be
entitled to receive payment of its pro rata share of such fee until
such Lender shall make available such portion.
(b) LETTER OF CREDIT FACILITY FEES. The Borrower shall pay to
the Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, a fee on the aggregate amount
available to be drawn on each outstanding Letter of Credit at a rate
equal to the Applicable Margin for Eurodollar Rate Loans. Such fees
shall be due with respect to each Letter of Credit quarterly in arrears
on the last day of each November, February, May and August, the first
such payment to be made on the first such date occurring after the date
of issuance of a Letter of Credit.
(c) LETTER OF CREDIT FRONTING AND ADMINISTRATIVE FEES. From
and after the date on which there is more than one Lender, the Borrower
shall pay to the Issuing Bank a fronting fee of one-eighth of one
percent per annum (.125 %) on the aggregate amount available to be
drawn on each outstanding Letter of Credit, such fee to be payable
quarterly in arrears with respect to each Letter of Credit on the dates
established in
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SECTION 4.6(b) for the payment of Letter of Credit facility fees with
respect to such Letter of Credit. The Borrower shall also pay to the
Issuing Bank such administrative fee and other fees, if any, in
connection with the Letters of Credit in such amounts and at such times
as the Issuing Bank and the Borrower shall agree from time to time.
(d) AGENCY ADMINISTRATIVE FEES. The Borrower agrees to pay to
the Agent, for the Agent's individual account, an annual administrative
fee, such fee to be payable in such amounts and on such dates as from
time to time agreed to by the Borrower and Agent in writing.
4.7. PRO RATA PAYMENTS. Except as otherwise specified herein, (a) each
payment on account of the principal of and interest on Loans, the fees described
in SECTION 4.6(a) AND (b), and Swing Line Loans and Reimbursement Obligations as
to which the Lenders have funded their respective Participations which remain
outstanding, shall be made to the Agent for the account of the Lenders pro rata
based on their Applicable Commitment Percentages, and (b) the Agent will
promptly distribute to the Lenders in immediately available funds payments
received in fully collected, immediately available funds from the Borrower.
4.8. COMPUTATION OF RATES AND FEES. Except as may be otherwise
expressly provided, (i) the Prime Rate shall be computed on the basis of the
365/366 day year and calculated for actual days elapsed, and (ii) all other
interest rates (including each Eurodollar Rate, the Federal Funds Rate and the
Default Rate) and fees shall be computed on the basis of a year of 360 days and
calculated for actual days elapsed.
4.9. DEFICIENCY ADVANCES; FAILURE TO PURCHASE PARTICIPATIONS. No Lender
shall be responsible for any default of any other Lender in respect to such
other Lender's obligation to make any Loan or Advance hereunder or to fund its
purchase of any Participation hereunder nor shall the Revolving Credit
Commitment or Letter of Credit Commitment of any Lender hereunder be increased
as a result of such default of any other Lender. Without limiting the generality
of the foregoing or the provisions of SECTION 4.10, in the event any Lender
shall fail to advance funds to the Borrower as herein provided, the Agent may in
its discretion, but shall not be obligated to, advance under the applicable Note
in its favor as a Lender all or any portion of such amount or amounts (each, a
"deficiency advance") and shall thereafter be entitled to payments of principal
of and interest on such deficiency advance in the same manner and at the same
interest rate or rates to which such other Lender would have been entitled had
it made such Advance under its Note; provided that, (i) such defaulting Lender
shall not be entitled to receive payments of principal, interest or fees with
respect to such deficiency advance until such deficiency advance (together with
interest thereon as provided in clause (ii)) shall be paid by such Lender and
(ii) upon payment to the Agent from such other Lender of the entire outstanding
amount of each such deficiency advance, together with accrued and unpaid
interest thereon, from the most recent date or dates interest was paid to the
Agent by a Borrower on each Loan comprising the deficiency advance at the
Federal Funds Rate, then such payment shall be credited against the applicable
Note of the Agent in full payment of such deficiency advance and such Borrower
shall be deemed to have borrowed the amount of such deficiency advance from such
other Lender as of the most recent date or dates, as the case may be, upon which
any payments of interest were made by such Borrower thereon. In the event any
Lender shall fail to
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fund its purchase of a Participation after notice from the Issuing Bank or Bank
of America as the Swing Line lender, as applicable, such Lender shall pay to the
Issuing Bank or Bank of America as the Swing Line lender, as applicable, such
amount on demand, together with interest on the amount so due from the date of
such notice at the Federal Funds Rate to the date such purchase price is
received by the Issuing Bank or Bank of America as the Swing Line lender, as
applicable.
4.10. INTRADAY FUNDING. Without limiting the provisions of SECTION 4.9,
unless the Borrower or any Lender has notified the Agent not later than 12:00
Noon of the Business Day before the date any payment (including in the case of
Lenders any Advance) to be made by it is due, that it does not intend to remit
such payment, the Agent may, in its discretion, assume that Borrower or each
Lender, as the case may be, has timely remitted such payment in the manner
required hereunder and may, in its discretion and in reliance thereon, make
available such payment (or portion thereof) to the Person entitled thereto as
otherwise provided herein. If such payment was not in fact remitted to the Agent
in the manner required hereunder, then:
(i) if Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Agent the amount of such assumed
payment made available to such Lender, together with interest thereon
in respect of each day from and including the date such amount was made
available by the Agent to such Lender to the date such amount is repaid
to the Agent at the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the Agent
shall be entitled to recover such corresponding amount forthwith upon
the Agent's demand therefor, the Agent promptly shall notify the
Borrower, and the Borrower shall promptly pay such corresponding amount
to the Agent in immediately available funds upon receipt of such
demand. The Agent also shall be entitled to recover interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to
the date such corresponding amount is recovered by the Agent, (a) from
such Lender at a rate per annum equal to the daily Federal Funds Rate
or (b) from the Borrower, at a rate per annum equal to the interest
rate applicable to the Loan which includes such corresponding amount.
Until the Agent shall recover such corresponding amount together with
interest thereon, such corresponding amount shall constitute a
deficiency advance within the meaning of SECTION 4.9. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill
its commitments hereunder or to prejudice any rights which the Agent or
the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
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ARTICLE V
Security
--------
5.1 SECURITY. As security for the full and timely payment and
performance of all Obligations, the Borrower shall, and shall cause all other
Credit Parties, on or before the Closing Date, to do or cause to be done all
things necessary in the opinion of the Agent and its counsel to grant to the
Agent for the benefit of the Agent and the Lenders a duly perfected first
priority security interest in all Collateral subject to no prior Lien or other
encumbrance or restriction on transfer except as set forth on SCHEDULE 8.6 or as
may otherwise be acceptable to the Agent. Without limiting the foregoing, the
Borrower and each Subsidiary having rights in any Subsidiary Securities shall on
the Closing Date deliver to the Agent, in form and substance reasonably
acceptable to the Agent, (a) a Pledge Agreement which shall pledge to the Agent
for the benefit of the Agent and the Lenders (i) subject to SECTION 7.3(j),
except with respect to the Asian Joint Ventures, 65% of the Voting Securities of
each Direct Foreign Subsidiary (or if the Borrower and its Subsidiaries shall
own less than 65%, then all of the Voting Securities owned by them) and 100% of
the other Subsidiary Securities of such Direct Foreign Subsidiary, and (ii) all
of the Subsidiary Securities of all Domestic Subsidiaries except the US Joint
Venture or any of its Subsidiaries, (b) subject to SECTION 7.3(c), if such
Subsidiary Securities are in the form of certificated securities, such
certificated securities, together with undated stock powers or other appropriate
transfer documents endorsed in blank pertaining thereto, (c) if such Subsidiary
Securities do not constitute securities and the Subsidiary has not elected to
have such interests treated as securities under Article 8 of the Uniform
Commercial Code, a control agreement (containing the provisions described in
SECTION 9.18(f)) from the Registrar of such Subsidiary Securities and (d)
Uniform Commercial Code financing statements reflecting the Lien in favor of the
Agent on such Subsidiary Securities, each in form and substance acceptable to
the Agent, and shall take such further action and deliver or cause to be
delivered such further documents as required by the Security Instruments or
otherwise as the Agent may request to effect the transactions contemplated by
this ARTICLE V. The Borrower shall, and shall cause each Subsidiary to, pledge
to the Agent for the benefit of the Agent and the Lenders (and as appropriate to
reaffirm its prior pledge of) all of the Pledged Interests of any Subsidiary
that is a Domestic Subsidiary or a Direct Foreign Subsidiary acquired or created
after the Closing Date and to deliver to the Agent all of the documents and
instruments in connection therewith as are required pursuant to the terms of
SECTION 9.18 and of the Security Instruments.
5.2 FURTHER ASSURANCES. At the request of the Agent, the Borrower will
and will cause each other Credit Party, as the case may be, to execute, by its
duly authorized officers, alone or with the Agent, any certificate, instrument,
financing statement, control agreement, statement or document, or to procure any
such certificate, instrument, statement or document, or to take such other
action (and pay all connected costs) which the Agent reasonably deems necessary
from time to time to create, continue or preserve the Liens and security
interests in Collateral (and the perfection and priority thereof) of the Agent,
for the benefit of the Agent and the Lenders, contemplated hereby and by the
other Loan Documents and specifically including all Collateral acquired by the
Borrower or any other Credit Party after the Closing Date and all motor vehicles
required to be granted pursuant to SECTION 10.21 or otherwise. The Agent is
hereby irrevocably authorized to execute and file or cause to be filed, with or
if permitted by applicable law without
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the signature of the Borrower or any Credit Party appearing thereon, all Uniform
Commercial Code financing statements reflecting the Borrower or any other Credit
Party as "debtor" and the Agent as "secured party", and continuations thereof
and amendments thereto, as the Agent reasonably deems necessary or advisable to
give effect to the transactions contemplated hereby and by the other Loan
Documents.
5.3 INFORMATION REGARDING COLLATERAL. The Borrower represents, warrants
and covenants that (i) the chief executive office of the Borrower and each other
Person providing Collateral pursuant to a Security Instrument (each, a
"Grantor") at the Closing Date is located at the address or addresses specified
on SCHEDULE 5.3, and (ii) SCHEDULE 5.3 contains a true and complete list of (a)
the exact legal name, jurisdiction of formation, and address of each Grantor and
of each other Person that has effected any merger or consolidation with a
Grantor or contributed or transferred to a Grantor any property constituting
Collateral at any time since January 1, 1996 (excluding Persons making sales in
the ordinary course of their businesses to a Grantor of property constituting
inventory in the hands of such seller), (b) the exact legal name, jurisdiction
of formation, and each location of the chief executive office of each Grantor at
any time since January 1, 1996, (c) each location in which property constituting
Collateral is or has been located since January 1, 1996 (together with the name
of each owner of the property located at such address if not the applicable
Grantor, and a summary description of the relationship between the applicable
Grantor and such Person), and (d) each trade name, trademark or other trade
style used by any Grantor since January 1, 1996 and the purposes for which it
was used. Borrower shall not change, and shall not permit any other Grantor to
change, its name, jurisdiction of formation (whether by reincorporation, merger
or otherwise), the location of its chief executive office or any location
specified in clause (c) of the immediately preceding sentence, or use or permit
any other Grantor to use, any additional trade name, trademark or other trade
style, except upon giving not less than thirty (30) days' prior written notice
to the Agent and taking or causing to be taken all such action at Borrower's or
such other Grantor's expense as may be reasonably requested by the Agent to
perfect or maintain the perfection of the Lien of the Agent in Collateral.
5.4 MORTGAGES. Without limiting the generality of SECTION 5.1, the
Borrower, as security for all Obligations, and each Domestic Subsidiary, as
security for the Guarantors' Obligations and for all Obligations, as applicable,
shall deliver to the Agent (i) on the Closing Date, with respect to each parcel
of real property owned and listed on part (a) of SCHEDULE 5.4 hereto, a
Mortgage, and (ii) with respect to each parcel of real property acquired or
leased by the Borrower or a Guarantor after the Closing Date with a fair market
value greater than $250,000 (determined as provided in the definition of
"Mortgaged Property"), unless otherwise agreed by the Required Lenders, within
fifteen (15) days of the consummation of such acquisition or lease, a Mortgage
with respect to such parcel of real property and, (iii) with respect to each
such parcel of Mortgaged Property described in (i) or (ii) above, the related
Real Property Support Documents.
5.5 PERMITTED ASSET SECURITIZATIONS. Notwithstanding anything to the
contrary herein or in the Security Instruments, with respect to accounts
receivable that constitute Securitization Accounts, at the sole expense of the
Borrower, (i) the Lien on any such account receivable in favor of the Agent
created herein or in the Security Instruments shall be automatically terminated
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at such time as such account receivable satisfies the conditions to become a
Securitization Account and is purchased by the Securitization Subsidiary
pursuant to the Receivables Sales Agreement, but only to the extent necessary to
effectuate the Permitted Asset Securitization pursuant to which such account
receivable becomes a Securitization Account, (ii) the Agent shall take all such
actions, after receiving reasonable advance notice thereof and at the sole
expense of the Borrower, as are reasonably necessary to effectuate such release,
and (iii) the Lien of the Agent for the benefit of the Agent and the Lenders in
accounts receivable shall continue or immediately reattach, as the case may be,
to any account receivable to the extent such account receivable does not, or
ceases to, constitute a Securitization Account.
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ARTICLE VI
Change in Circumstances
-----------------------
6.1. INCREASED COST AND REDUCED RETURN.
(a) If, after the date hereof, the adoption of any applicable
law, rule, or regulation, or any change in any applicable law, rule, or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank, or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any
such governmental authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect
to any Eurodollar Rate Loans, its Note, or its obligation to
make Eurodollar Rate Loans, or change the basis of taxation of
any amounts payable to such Lender (or its Applicable Lending
Office) under this Agreement or its Note in respect of any
Eurodollar Rate Loans (other than taxes imposed on the overall
net income of such Lender by the jurisdiction in which such
Lender has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with
or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the Revolving Credit
Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other
condition affecting this Agreement or its Note or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Loans or to reduce any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or its Note with respect
to any Eurodollar Rate Loans, then the Borrower shall pay to such Lender on
demand such amount or amounts as will compensate such Lender for such increased
cost or reduction. If any Lender requests compensation by the Borrower under
this SECTION 6.1(a), the Borrower may, by notice to such Lender (with a copy to
the Agent), suspend the obligation of such Lender to make or Continue Loans of
the Type with respect to which such compensation is requested, or to Convert
Loans of any other Type into Loans of such Type, until the event or condition
giving rise to such request ceases to be in effect (in which case the provisions
of SECTION 6.4 shall be applicable); PROVIDED that such suspension shall not
affect the right of such Lender to receive the compensation so requested.
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(b) If, after the date hereof, any Lender shall have
determined that the adoption of any applicable law, rule, or regulation
regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any governmental authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of
such Lender or any corporation controlling such Lender as a consequence
of such Lender's obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies
with respect to capital adequacy), then from time to time upon demand
the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the
Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this
SECTION 6.1 and will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this
SECTION 6.1 shall furnish to the Borrower and the Agent a statement
setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error.
In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
6.2. LIMITATION ON TYPES OF LOANS. If on or prior to the first
day of any Interest Period for any Eurodollar Rate Loan:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
6.3. ILLEGALITY. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or
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fund Eurodollar Rate Loans hereunder, then such Lender shall promptly notify the
Borrower thereof and such Lender's obligation to make or Continue Eurodollar
Rate Loans and to Convert other Types of Loans into Eurodollar Rate Loans shall
be suspended until such time as such Lender may again make, maintain, and fund
Eurodollar Rate Loans (in which case the provisions of SECTION 6.4 shall be
applicable).
6.4. TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to SECTION 6.1
or 6.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by SECTION 6.3 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
SECTION 6.1 or 6.3 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in SECTION 6.1 or 6.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this SECTION 6.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Revolving
Credit Commitments.
6.5. COMPENSATION. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to SECTION 11.1) on a date other
than the last day of the Interest Period for such Loan; or
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(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
ARTICLE VII to be satisfied) to borrow, Convert, Continue, or prepay a
Eurodollar Rate Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, Continuation, or Conversion under this
Agreement.
6.6. TAXES.
(a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, EXCLUDING,
in the case of each Lender and the Agent, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction under the laws
of which such Lender (or its Applicable Lending Office) or the Agent
(as the case may be) is organized or any political subdivision thereof
(all such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable under this Agreement or any other
Loan Document to any Lender or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
SECTION 6.6) such Lender or the Agent receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law, and (iv) the Borrower
shall furnish to the Agent, at its address referred to in SECTION 13.2,
the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Agreement or any other Loan Document or from
the execution or delivery of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent
for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this SECTION 6.6) paid by such
Lender or the Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto.
(d) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes
a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrower or the Agent (but
only so long as such Lender remains lawfully able to do so), shall
provide the Borrower and the Agent with (i)
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Internal Revenue Service Form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying
that such Lender is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 (including Form W-8BEN or W-8EC1) or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from or a reduced rate of tax on payments
pursuant to this Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed
to provide the Borrower and the Agent with the appropriate form
pursuant to SECTION 6.6(d) (unless such failure is due to a change in
treaty, law, or regulation occurring subsequent to the date on which a
form originally was required to be provided), such Lender shall not be
entitled to indemnification under SECTION 6.6(a) or 6.6(b) with respect
to Taxes imposed by the United States; PROVIDED, HOWEVER, that should a
Lender, which is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps
as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Lender pursuant to this SECTION 6.6, then
such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Taxes, the Borrower shall furnish to the Agent the original or a
certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this SECTION 6.6 shall survive the termination of
the Revolving Credit Commitments, the payment in full of the Notes and
the Facility Termination Date.
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ARTICLE VII
CONDITIONS TO CLOSING, MAKING LOANS AND ISSUING LETTERS OF CREDIT
-----------------------------------------------------------------
7.1. CONDITIONS OF CLOSING. The closing of this Agreement is subject to
the conditions precedent that:
(a) the Agent shall have received on the Closing Date, in form
and substance satisfactory to the Agent and Lenders, the following:
(i) executed originals of each of this Agreement, the
Notes, the initial Facility Guaranties, the Security
Instruments and the other Loan Documents (other than the LC
Account Agreement), together with all schedules and exhibits
thereto;
(ii) the favorable written opinions with respect to
the Loan Documents and the transactions contemplated thereby
of special counsel to the Credit Parties dated the Closing
Date, addressed to the Agent and the Lenders and satisfactory
to ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P., special counsel to the
Agent, substantially in the form of EXHIBIT G;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Credit Party certified by its secretary or
assistant secretary as of the Closing Date, approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other
appropriate representatives executing the Loan Documents on
behalf of each of the Credit Parties, certified by the
secretary or assistant secretary of such Credit Party;
(v) the Organizational Documents of each of the
Credit Parties certified as of a recent date by the Secretary
of State of its state of organization, or a certificate of an
Authorized Representative to the effect that there has been no
change to the Organizational Documents of such Credit Party
since such Organizational Documents were delivered to the
Agent on the Original Closing Date;
(vi) Operating Documents of each of the Credit
Parties certified as of the Closing Date as true and correct
by its secretary or assistant secretary, or a certificate of
an Authorized Representative to the effect that there has been
no change to the Operating Documents of such Credit Party
since such Operating Documents were delivered to the Agent on
the Original Closing Date;
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(vii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each of the Credit Parties as to the due
existence and good standing of such Person;
(viii) with respect to the Borrower, to the extent
that the notice delivered by the Borrower pursuant to SECTION
7.1(a)(IX) of the Existing Agreement on the Original Closing
Date is no longer accurate, a notice of appointment of the
initial Authorized Representative(s) substantially in the form
of EXHIBIT C hereto;
(ix) certificate of an Authorized Representative
dated the Closing Date demonstrating compliance with the
financial covenants contained in SECTION 10.1 as of the end of
the fiscal quarter of the Borrower and its Subsidiaries ended
February 28, 2001, substantially in the form of EXHIBIT H;
(x) evidence of all insurance, with applicable
coverage and endorsements, required by the Loan Documents;
(xi) if elected by the Borrower, one or more Interest
Rate Selection Notices;
(xii) evidence of the filing of Uniform Commercial
Code financing statements reflecting the filing in all places
required by applicable law to perfect the Liens of the Agent
under the Security Instruments as a first priority Lien as to
items of Collateral in which a security interest may be
perfected by the filing of financing statements, and such
other documents and/or evidence of other actions as may be
necessary under applicable law (including, without limitation,
any filings relating to Intellectual Property but excluding
any filing of Mortgages until the effectiveness of this
Agreement) to perfect the Liens of the Agent under the
Security Instruments as a first priority Lien in and to such
other Collateral as the Agent may require, including without
limitation:
(i) the delivery by the Borrower and each
other applicable Credit Party of all stock
certificates evidencing Pledged Interests,
accompanied in each case by duly executed stock
powers (or other appropriate transfer documents) in
blank affixed thereto; and
(ii) the delivery by the Borrower and each
other applicable Credit Party of certificates of the
Registrar of each partnership or limited liability
company Subsidiary evidencing the due registration on
the registration books of such Person of the Lien in
favor of the Agent conferred under the Security
Instruments;
(xiii) evidence that all fees payable by the Borrower
on the Closing Date to the Agent, BAS and the Lenders have
been paid in full, including the due diligence expenses of the
Agent and the fees and expenses of counsel for the Agent to
the extent invoiced prior to or on the Closing Date (which may
include
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amounts constituting reasonable estimates of such fees and
expenses incurred or to be incurred in connection with the
transaction; provided that no such estimate shall thereafter
preclude the final settling of accounts as to such fees and
expenses);
(xiv) Uniform Commercial Code search results showing
only those Liens as are acceptable to the Lenders;
(xv) a certificate of an officer of the Borrower
reasonably satisfactory to the Agent and the Lenders as to the
matters set forth in SECTION 7.1(b); and
(xvi) each of the applicable Real Property Support
Documents with respect to each parcel of Mortgaged Property
for which a Mortgage is being delivered as of the Closing
Date, other than the final Title Policy for each such parcel
of Mortgaged Property to the extent not available on the
Closing Date;
(xvii) a complete, executed copy of the
Securitization Documents, certified by an Authorized
Representative of the Borrower to be true and correct,
including the Receivables Amendment Agreement and all other
amendments, modifications, supplements or other alterations
through the Closing Date;
(xviii) a complete, executed copy of each of the US
Joint Venture Documents;
(xix) a certificate of an Authorized Representative
of the Borrower certifying that the Permitted Asset
Securitization is in full force and effect as of the Closing
Date, and no party to any of the Securitization Documents has
given any notice to any other party of its intent to
terminate, amortize or discontinue the purchase of receivables
under the Permitted Asset Securitization or any of the
Securitization Documents pursuant to the terms thereof; and
(xx) such other documents, instruments, certificates
and opinions as the Agent or any Lender may reasonably request
on or prior to the Closing Date in connection with the
consummation of the transactions contemplated hereby; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to
the Agent or the Lenders any event, condition, situation or
status since the date of the information contained in the
financial and business projections, budgets, pro forma data
and forecasts concerning the Borrower and its Subsidiaries
delivered to the Agent prior to the Closing Date that has had
or could reasonably be expected to result in a Material
Adverse Effect;
(ii) no order, decree, judgment, ruling, injunction,
litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be
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pending or threatened, and there shall exist no order, decree,
judgment, injunction or arbitral award or ruling, which could
reasonably be likely to result in a Material Adverse Effect;
(iii) each of the Credit Parties shall have received
all approvals, consents and waivers, and shall have made or
given all necessary filings and notices as shall be required
to consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of
(a) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (b) any
agreement, document or instrument to which any of the Credit
Parties is a party or by which any of them or their properties
is bound, except to the extent not receiving, making or giving
such approvals, consents, waivers, filings and notices will
not have a Material Adverse Effect.
7.2. CONDITIONS OF REVOLVING LOANS AND LETTER OF CREDIT. The
obligations of the Lenders to make any Revolving Loans, and the Issuing Bank to
issue (or renew) any Letters of Credit and Bank of America to make Swing Line
Loans, hereunder on or subsequent to the Closing Date are subject to the
satisfaction of the following conditions:
(a) the satisfaction of all conditions set forth in SECTION
7.1 hereof;
(b) the Agent or, in the case of Swing Line Loans, Bank of
America shall have received a Borrowing Notice if required by ARTICLE
II;
(c) the representations and warranties of the Credit Parties
set forth in ARTICLE VIII and in each of the other Loan Documents shall
be true and correct on and as of the date of such Advance, Swing Line
Loan or Letter of Credit issuance or renewal, with the same effect as
though such representations and warranties had been made on and as of
such date, except to the extent that such representations and
warranties expressly relate to an earlier date (specifically, as to
SECTION 8.4, Borrower agrees to provide an updated SCHEDULE 8.4
annually, and further specifically excepting the last sentence of
SECTION 8.6, all of SECTIONS 8.7(b), 8.10, 8.11 AND 8.14(a), and the
last sentence of SECTION 8.17) and except that the financial statements
referred to in SECTION 8.5(a) shall be deemed (solely for the purpose
of the representation and warranty contained in such SECTION 8.5(a) but
not for the purpose of any cross reference to such SECTION 8.5(a) or to
the financial statements described therein contained in any other
provision of SECTION 8.5 or elsewhere in ARTICLE VIII) to be those
financial statements most recently delivered to the Agent and the
Lenders pursuant to SECTION 9.1 from the date financial statements are
delivered to the Agent and the Lenders in accordance with such Section;
(d) in the case of the issuance of a Letter of Credit, the
Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments and
documents as it shall request;
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(e) at the time of (and after giving effect to) each Advance,
Swing Line Loan or the issuance of a Letter of Credit, no Default or
Event of Default specified in ARTICLE XI shall have occurred and be
continuing; and
(f) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal balance
of all outstanding Revolving Loans for each Lender shall not
exceed such Lender's Revolving Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
deduction of all Participations in Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender
and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line Outstandings
shall not exceed $10,000,000; and
(iv) a Revolving Loan, Swing Line Loan or a Letter of
Credit or renewal thereof, the sum of Letter of Credit
Outstandings plus Revolving Credit Outstandings plus Swing
Line Outstandings shall not exceed the Total Revolving Credit
Commitment.
7.3 POST-CLOSING ITEMS. The Borrower shall deliver to the Agent:
(a) within thirty (30) days after the Closing Date, a final
Title Policy with respect to each Mortgaged Property listed on part (a)
of SCHEDULE 5.4 for which a final Title Policy was not otherwise
delivered on the Closing Date pursuant to Section 7.1(a)(XVI);
(b) within ninety (90) days after the Closing Date, evidence
satisfactory to the Agent of the dissolution of OMNOVA Spain, PROVIDED
THAT, the date for delivery thereof may be increased by up to sixty
(60) additional days by the Agent in its sole discretion so long as no
Default or Event of Default has occurred and is continuing at the time
of such extension;
(c) within thirty (30) days after the Closing Date, each of:
(i) the certificate or certificates evidencing the
Pledged Interests of GenCorp Performance Chemicals (Singapore)
Pte. Ltd., or any successor thereof (including by name
change), with a stock power executed in blank in form
satisfactory to the Agent; and
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(ii) the certificate or certificates evidencing the
Pledged Interests of the UK Subsidiary, with a stock power
executed in blank in form satisfactory to the Agent;
PROVIDED THAT, in each case the date for delivery thereof may
be increased by up to sixty (60) additional days by the Agent
in its sole discretion so long as no Default or Event of
Default has occurred and is continuing at the time of such
extension;
(d) within thirty (30) days after the Closing Date, evidence
satisfactory to the Agent of the change of the name of GenCorp
Performance Chemicals (Singapore) Pte. Ltd. to OMNOVA Performance
Chemicals (Singapore) Pte. Ltd., or a similar name acceptable to the
Agent, PROVIDED THAT, the date for delivery thereof may be increased by
up to sixty (60) additional days by the Agent in its sole discretion so
long as no Default or Event of Default has occurred and is continuing
at the time of such extension;
(e) concurrently with the delivery of the certificates
required under SECTION 7.3(c)(i) and concurrently with the delivery of
the evidence of name change required under SECTION 7.3(d), an amendment
to Schedule I to the appropriate Pledge Agreement reflecting such
events;
(f) within thirty (30) days after the Closing Date, unless
waived by the Agent, UCC-3 amendment or termination statements
satisfactory to the Agent with respect to each of the UCC-1 financing
statements showing the Borrower as debtor, ▇▇▇▇▇▇ Chemicals & Plastics
as secured party, and Fleet Capital Corporation as assignee, filed with
(i) the Secretary of State of Mississippi (file number 01420517), (ii)
Lowndes County, Mississippi (file number 127465), and (iii) the
Secretary of State of Pennsylvania (file number 31490592);
(g) within ninety (90) days after the Closing Date, a
certificate demonstrating that the Borrower is in good standing as a
foreign corporation in the State of Illinois, unless the Borrower
demonstrates to the Agent's satisfaction, in its sole discretion, that
the Borrower is not required to be in good standing in the State of
Illinois either for the purpose of its own operations or for the
purpose of the enforcement and realization of benefits of any of the
Loan Documents;
(h) within ninety (90) days after the Closing Date, a Mortgage
with respect to each parcel of real property leased by the Borrower or
any of its Subsidiaries and listed on part (b) of SCHEDULE 5.4, and the
related Real Property Support Documents with respect to each such
parcel of leased property; PROVIDED THAT the Agent, in its sole
discretion, may (i) extend the time for the delivery of any such
Mortgage and the related Real Property Support Documents by up to sixty
(60) additional days so long as no Default or Event of Default has
occurred and is continuing at the time of such extension, or (ii) waive
the delivery of a Mortgage and the related Real Property Support
Documents for any such parcel of leased property with respect to which
the Agent has determined that, despite the Borrower's commercially
reasonable best efforts, no consent of the landlord of such parcel of
leased property necessary for the valid execution, delivery,
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recordation and effectiveness of such a Mortgage can be obtained;
PROVIDED FURTHER THAT, in the event of any waiver provided for any
parcel of leased property granted pursuant to clause (ii) above, such
parcel of real property shall no longer be part of the definition of
"Mortgaged Property" despite being listed on SCHEDULE 5.4 hereto;
(i) within ninety (90) days after the Closing Date, evidence
of the termination of that certain Notice of Claim of Lien and Claim of
Lien by First Tier Subcontractor in the amount of $30,453.00 in favor
of ▇▇▇▇▇ Environmental Corporation, filed on January 26, 2001, relating
to that certain parcel of real property owned by the Borrower and
described in part (a) of SCHEDULE 5.4 as being located at 2011 Rocky
River Road North, Monroe, Union County, North Carolina, PROVIDED THAT,
the date for delivery thereof may be increased by up to sixty (60)
additional days by the Agent in its sole discretion so long as no
Default or Event of Default has occurred and is continuing at the time
of such extension;
(j) within thirty (30) days after the Closing Date, a Pledge
Agreement in form and substance satisfactory to the Agent evidencing
the pledge to the Agent, for the benefit of the Agent and the Lenders,
of the Pledged Interests of OMNOVA Brazil, PROVIDED THAT, the date for
delivery thereof may be increased by up to sixty (60) additional days
by the Agent in its sole discretion so long as no Default or Event of
Default has occurred and is continuing at the time of such extension;
and
(k) within thirty (30) days after the Closing Date, a Landlord
Waiver in form and substance satisfactory to the Agent with respect to
the leased property of the Borrower located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, PROVIDED THAT the Agent, in its
sole discretion, may (i) extend the time for the delivery of such
Landlord Waiver by up to sixty (60) additional days so long as no
Default or Event of Default has occurred and is continuing at the time
of such extension, or (ii) waive the delivery of such Landlord Waiver
to the extent the Agent has determined that the landlord will not
execute and deliver a Landlord Waiver acceptable to the Agent, despite
the Borrower's commercially reasonable best efforts.
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ARTICLE VIII
Representations and Warranties
------------------------------
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
8.1. ORGANIZATION AND AUTHORITY.
(a) The Borrower and each Subsidiary is a corporation, limited
liability company, partnership or other organizational entity, as the
case may be, duly organized and validly existing under the laws of the
jurisdiction of its formation;
(b) The Borrower and each Subsidiary (i) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in the Loan
Documents, and (ii) is qualified to do business in every jurisdiction
in which failure so to qualify would have a Material Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) Each Guarantor has the power and authority to execute,
deliver and perform the Facility Guaranty and each of the other Loan
Documents to which it is a party; and
(e) When executed and delivered, each of the Loan Documents to
which any Credit Party is a party will be the legal, valid and binding
obligation or agreement, as the case may be, of such Credit Party,
enforceable against such Credit Party in accordance with its respective
terms, subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the effect of
general principles of equity which may limit the availability of
remedies (whether considered in a proceeding at law or in equity).
8.2. LOAN DOCUMENTS. The execution, delivery and performance by each
Credit Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Credit Party required for the lawful execution, delivery
and performance thereof;
(b) do not violate any provisions of (i) any applicable law,
rule or regulation (ii) any judgment, writ, order, determination,
decree or arbitral award of any Governmental Authority or arbitral
authority binding on such Credit Party or its properties, (iii) the
Organizational Documents or Operating Documents of such Credit
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Party, in each case in clauses (i) and (ii) hereof, which violation
could reasonably be expected to have a Material Adverse Effect;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which such Credit Party or any of its subsidiaries is a
party, or by which the properties or assets of such Credit Party or any
of its subsidiaries are bound which conflict, breach or event of
default could reasonably be expected to have a Material Adverse Effect;
and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Credit Party
or any Subsidiary except any Liens in favor of the Agent and the
Lenders created by the Loan Documents.
8.3. GOVERNMENTAL AUTHORIZATION. Neither the respective businesses or
properties of the Borrower or any Subsidiary, nor any relationship between the
Borrower or any Subsidiary and any other Person, nor the execution, delivery and
performance of the Loan Documents and the transactions contemplated hereby, is
such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority or other
authority or any other Person on the part of the Borrower or any Subsidiary as a
condition to the execution, delivery and performance of, or consummation of the
transactions contemplated by, this Agreement or the other Loan Documents, or if
so, such consent, approval, authorization, filing, registration or qualification
has been obtained or effected, as the case may be.
8.4. CAPITALIZATION; SUBSIDIARIES; INVESTMENTS. All outstanding shares
of capital stock of the Borrower have been duly authorized and are listed on
SCHEDULE 8.4. Except as set forth on SCHEDULE 8.4, there are no outstanding
subscriptions, warrants, options, calls, commitments or other rights (preemptive
or otherwise) or agreements to which the Borrower or, to the knowledge of the
Borrower, any shareholder is bound relating to the issuance, sale or redemption
of shares of common stock of the Borrower. The Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in SCHEDULE 8.4 and such
schedule states the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and percentage of outstanding shares or other equity interest (including
options, warrants and other rights to acquire any interest) of each such class
of capital stock or other equity interest owned by the Borrower or by any such
Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable; and the Borrower and each such Subsidiary owns beneficially and
of record all the shares and other interests it is listed as owning in SCHEDULE
8.4, free and clear of any Lien other than Liens permitted under SECTION 10.4.
The Borrower has no investments and owns no interest in any other Person
(excluding Subsidiaries) other than as listed in SCHEDULE 8.4.
8.5. FINANCIAL CONDITION.
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(a) The Borrower has heretofore furnished to the Agent and
each Lender (i) audited consolidated financial statements of the
Borrower and its Subsidiaries for the Fiscal Years ended November 30,
1999 and November 30, 2000, consisting of a consolidated balance sheet
and the notes thereto and the related consolidated statements of
income, divisional equity and cash flows for the fiscal periods then
ended as examined and certified by Ernst & Young, LLP, and (ii) if
available on the Closing Date, unaudited consolidated interim financial
statements of the Borrower and its Subsidiaries consisting of
consolidated balance sheets and related consolidated statements of
income, stockholders' equity and cash flows for and as of the end of
the three-month period ended February 28, 2001, and (iii) pro forma
quarterly projections for the Fiscal Year ending November 30, 2001,
including pro forma balance sheets and income and cash flow statements.
Except as set forth therein, the financial statements described in (i)
and (ii) (if delivered) above (including the notes thereto) present
fairly the financial condition of the Borrower and its Subsidiaries as
of the end of such Fiscal Years and such three-month period and the
results of their operations, cash flows and the changes in divisional
equity for the Fiscal Years and three-month period then ended, all in
conformity with GAAP applied on a Consistent Basis, subject however, in
the case of unaudited interim statements to year end audit adjustments
and the absence or reduced scope of footnote disclosures;
(b) since the later of (i) the date of the audited financial
statements delivered pursuant to SECTION 8.5(a)(i) hereof or (ii) the
date of the audited financial statements most recently delivered
pursuant to SECTION 9.1(a) hereof, there has been no material adverse
change in the condition, financial or otherwise, of the Borrower, any
of its Subsidiaries or, in respect of clause (i), in the businesses,
properties, performance or operations of the Borrower or any of its
Subsidiaries, nor have such businesses or properties been materially
adversely affected as a result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo or
act of God; and
(c) except as set forth in the financial statements referred
to in SECTION 8.5(a) or in SCHEDULE 8.5 or permitted by SECTION 10.5,
neither Borrower nor any Subsidiary has incurred any material
Indebtedness which remains outstanding or unsatisfied.
8.6. TITLE TO PROPERTIES. The Borrower and each of its Subsidiaries has
good and marketable title to all its real and personal properties, subject to no
transfer restrictions or Liens of any kind, except for (i) the transfer
restrictions and Liens described in SCHEDULE 8.6, (ii) Liens permitted by
SECTION 10.4, (iii) with respect to any personal property that constitutes a
security, transfer restrictions imposed under Federal and state securities laws
and regulations, and (iv) the lack of title or the presence of such transfer
restrictions that could not reasonably be expected to have a Material Adverse
Effect. All real property owned or leased by the Borrower and its Subsidiaries
are described on SCHEDULE 8.6 hereto.
8.7. LITIGATION; LOSS CONTINGENCIES. Except as set forth in SCHEDULE
8.7 hereto, there are no legal actions, suits, proceedings, claims or disputes
pending, or to the knowledge of the Borrower threatened, at law, in equity, in
arbitration or before any Governmental Authority
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against or, to the Borrower's knowledge, directly affecting the Borrower or any
of its Subsidiaries (a) with respect to this Agreement or any of the other
Transaction Documents, or any of the transactions contemplated hereby, or (b)
which, in the opinion of management, after reviewing the information which is
currently available with respect to such matters and consulting with the
Borrower's counsel, could reasonably be expected to have a Material Adverse
Effect. No injunction, writ, temporary restraining order, decree or order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery or performance of this Agreement
or any of the other Loan Documents. Except as set forth in SCHEDULE 8.7 hereto,
there are no material Contingent Obligations which are not, or are not in
effect, Guaranties or "loss contingencies" (as defined in Statement of Financial
Accounting Standards No. 5 issued by the Financial Accounting Standards Board in
March 1975 ("FAS 5")), which would be required by FAS 5 to be disclosed or
accrued in consolidated financial statements of the Borrower were such financial
statements prepared at the time this representation and warranty is made or
deemed made.
8.8. NO DEFAULT OR BREACH. No default or event has occurred and is
continuing or would result from the consummation of the transactions
contemplated under this Agreement and under the other Transaction Documents
which constitutes or, with the giving of notice or passage of time or both,
would constitute an Event of Default. Except as set forth on SCHEDULE 8.8
hereto, after giving effect to the transactions contemplated hereby and by the
other Transaction Documents, neither the Borrower nor any of its Subsidiaries
nor, to the best of the Borrower's knowledge, with respect to any contract to
which the Borrower or any Subsidiary is a party, any other party thereto, is or
will be in default under or with respect to any contractual obligation in any
respect, which, individually or together with all such defaults, could
reasonably be expected to have a Material Adverse Effect.
8.9. CONTRACTS. Each contract to which the Borrower or any Subsidiary
is a party, and after giving effect to the consummation of the transactions
contemplated hereby and by the other Loan Documents will be, in full force and
effect in accordance with the terms thereof, except to the extent that any
failure thereof could not reasonably be expected to have a Material Adverse
Effect.
8.10. RELATED PARTY AGREEMENTS. Except with respect to the Line of
Business Transfer Documents and the Spinoff Documents or as set forth on
SCHEDULE 8.10, neither the Borrower nor any of its Subsidiaries is a party to
any material contract, agreement or commitment (a) with any director, officer or
shareholder of the Borrower (both before and after giving effect to the
transactions contemplated hereby and by the other Transaction Documents), or,
(b) to the Borrower's knowledge, with any Person in which any such director,
officer or shareholder has any direct or indirect interest.
8.11. ENVIRONMENTAL MATTERS. Based upon currently available information
and reasonable investigation and inquiry, to the best of management's knowledge,
except as set forth in SCHEDULE 8.11 hereto:
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(a) The Borrower and its Subsidiaries are in compliance with
all Environmental Laws, except to the extent that any non-compliance
would not reasonably be expected to have a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws that would reasonably be expected to
have a Material Adverse Effect, nor does the Borrower have knowledge or
reason to believe that any such notice will be received or is being
threatened.
(c) No judicial, governmental or administrative proceedings
are pending or are threatened against the Borrower or any of its
Subsidiaries under any Environmental Law, nor are there any consent
decrees or court decrees, consent orders, or administrative orders
outstanding under any Environmental Law with respect to the Borrower or
any of its Subsidiaries that would reasonably be expected to have a
Material Adverse Effect.
(d) There has been no release of Hazardous Materials arising
from, generated by or related to the operations of the Borrower or any
of its Subsidiaries, or for which the Borrower or any of its
Subsidiaries has retained or assumed liability in amounts or in a
manner that would reasonably be expected to result in a Material
Adverse Effect.
(e) Environmental liabilities with respect to continued and
discontinued operations of GenCorp other than the Transferred Business
have not been assumed by the Borrower, remained the obligations of
GenCorp after the Spinoff, and GenCorp has agreed to indemnify the
Borrower for any such environmental liabilities pursuant to the terms
of the Distribution Agreement.
8.12. COMPLIANCE WITH LAW.
(a) CONDUCT OF BUSINESS. The Borrower and its Subsidiaries
have conducted their business so as to comply with, and are in
compliance with, all Requirements of Law, except where the failure to
so comply could not reasonably be expected to have a Material Adverse
Effect.
(b) LICENSES. The Borrower and its Subsidiaries have all
permits, certificates, licenses, approvals and other authorizations
required by any Governmental Authority in connection with the operation
of their business, except where the failure to obtain such requirements
could not reasonably be expected to have a Material Adverse Effect.
8.13. TAXES. The Borrower and each of its Subsidiaries has filed or
caused to be filed all Federal, state, local and foreign tax returns which are
required to be filed by it and which the failure to file could reasonably be
expected to have a Material Adverse Effect and, except for taxes and assessments
being contested in good faith by appropriate proceedings diligently conducted
and against which reserves reflected in the financial statements described in
SECTION 8.5(a) or more recently delivered pursuant to SECTION 9.1(a) and as
required by GAAP have been established, have paid or caused to be paid all taxes
as shown on said returns or on any
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assessment received by it, to the extent that such taxes have become due unless
the failure to pay the same could not reasonably be expected to have a Material
Adverse Effect.
8.14. EMPLOYEE BENEFIT PLANS. Except as set forth in SCHEDULE 8.14
hereto:
(a) Neither the Borrower nor any ERISA Affiliate maintains or
contributes to, or has any obligation under, any Employee Benefit Plans
other than those identified on SCHEDULE 8.14 hereto;
(b) The Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and in compliance with all Foreign
Benefit Laws with respect to all Employee Benefit Plans except where
failure to comply could not reasonably be expected to have a Material
Adverse Effect and except for any required amendments for which the
remedial amendment period as defined in Section 401(b) of the Code has
not yet expired. Each Employee Benefit Plan that is intended to be
qualified under Section 401(a) of the Code has been determined by the
Internal Revenue Service to be so qualified (or an application for such
a determination by the Internal Revenue Service has been submitted to
the Internal Revenue Service on a timely basis so as to preserve the
remedial amendment period), and each trust related to such plan has
been determined to be exempt under Section 501(a) of the Code. No
material liability has been incurred by the Borrower or any ERISA
Affiliate which remains unsatisfied for any taxes or penalties with
respect to any Employee Benefit Plan or any Multiemployer Plan;
(c) No Pension Plan has been terminated, nor has any
accumulated funding deficiency (as defined in Section 412 of the Code)
been incurred (without regard to any waiver granted under Section 412
of the Code), nor has any funding waiver from the IRS been received or
requested with respect to any Pension Plan, nor has the Borrower or any
ERISA Affiliate failed to make any contributions or to pay any amounts
due and owing as required by Section 412 of the Code, Section 302 of
ERISA or the terms of any Pension Plan prior to the due dates of such
contributions under Section 412 of the Code or Section 302 of ERISA,
nor has there been any event requiring any disclosure under Section
4041(c)(3)(c), 4063(a) or 4068(f) of ERISA with respect to any Pension
Plan;
(d) Neither the Borrower nor any ERISA Affiliate has: (i)
engaged in a nonexempt prohibited transaction described in Section 406
of ERISA or Section 4975 of the Code, (ii) incurred any liability to
the PBGC which remains outstanding other than the payment of premiums
and there are no premium payments which are due and unpaid, (iii)
failed to make a required contribution or payment to a Multiemployer
Plan or (iv) failed to make a required installment or other required
payment under Section 412 of the Code, unless such action or failure to
act could not reasonably be expected to have a Material Adverse Effect;
(e) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan;
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(f) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan.
8.15. EMPLOYMENT MATTERS. Except as disclosed on SCHEDULE 8.15 hereto,
the Borrower and all Subsidiaries are in compliance with all applicable laws,
rules and regulations pertaining to labor or employment matters, including
without limitation those pertaining to wages, hours, occupational safety and
taxation, the noncompliance with which could reasonably be expected to have a
Material Adverse Effect, and there is neither pending nor, to the knowledge of
the Borrower, any threatened litigation, administrative proceeding or
investigation in respect of such matters an adverse ruling or determination in
which could reasonably be expected to have a Material Adverse Effect. Except as
disclosed on SCHEDULE 8.15 hereto, neither the Borrower nor any of its
Subsidiaries is party to any collective bargaining agreement with any labor
union or similar organization.
8.16. INTELLECTUAL PROPERTY. The Borrower and its Subsidiaries own, or
have a license or otherwise have the right to continue to use, without violating
the rights of any other Person, in all jurisdictions in which they carry on
business, all patents (including all applications, renewals, reissues,
extensions, divisions, continuations and extensions thereof), trademarks
(including both registered and unregistered trademarks and applications
therefor), service marks, trade names, copyrights (including all registrations,
renewals, modifications and extensions thereof), and know-how and trade secrets
(collectively, the "Intellectual Property"), currently in use but, to the extent
there is a failure to so own, license or possess the right to use such
Intellectual Property, such failure could not reasonably be expected to have a
Material Adverse Effect. Except as set forth on SCHEDULE 8.16 hereto, none of
the Intellectual Property is subject to any Lien other than Liens permitted
under SECTION 10.4. To the knowledge of the Borrower, no claim which could
reasonably be expected to have a Material Adverse Effect of any Person is
pending or threatened to the effect that any current use or ownership of the
Intellectual Property infringes upon or conflicts with any such rights of any
Person.
8.17. INSURANCE. The Borrower and its Subsidiaries maintain, to the
extent that reasonable commercial efforts permit them to, insurance with
financially sound and reputable insurance companies, or self-insure where the
Borrower deems appropriate, on all their properties in at least such amounts and
against at least such risks (but, including in any event, public liability,
product liability and business interruption) as are usually insured against or
self-insured in the same general area by companies engaged in the same or a
similar business. All policies of insurance owned or maintained by the Borrower
and its Subsidiaries and the coverages provided thereby are described on
SCHEDULE 8.17 hereto.
8.18. BOOKS AND RECORDS. The books and records of the Borrower and its
Subsidiaries, including the minutes of director and shareholder meetings,
consents or actions, are accurate, current and complete in all material
respects.
8.19. JUDGMENTS AND OTHER RESTRICTIONS. Neither the Borrower nor any
Subsidiary is a party to any judgment, order, decree or any agreement or
instrument or subject to restrictions which could reasonably be likely to have a
Material Adverse Effect or to materially adversely
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affect the ability of the Borrower or any Guarantor to observe the covenants and
agreements contained herein.
8.20 INVESTMENT COMPANY; MARGIN STOCK. Neither the Borrower nor any
Subsidiary is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended (15 U.S.C.
ss. 80a-1, et seq.). The application of the proceeds of the Loans and repayment
thereof by the Borrower and the performance by the Borrower of the transactions
contemplated by this Agreement will not violate any provision of said Act, or
any rule, regulation or order issued by the Securities and Exchange Commission
thereunder, in each case as in effect on the date hereof. Neither the Borrower
nor any Subsidiary owns any "margin stock" as such term is defined in Regulation
U, as amended (12 C.F.R. Part 221), of the Board. The proceeds of the borrowings
made pursuant to ARTICLES II hereof will be used by the Borrower and its
Subsidiaries only for the purposes set forth in SECTION 2.2 hereof. None of such
proceeds will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin stock or for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry margin stock or
for any other purpose which might constitute any of the Loans under this
Agreement a "purpose credit" within the meaning of said Regulation U or
Regulation X (12 C.F.R. Part 224) of the Board. Neither the Borrower nor any
agent acting on its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant hereto
to violate any regulation of the Board or to violate the Securities Exchange Act
of 1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof.
8.21. DISCLOSURE.
(a) THIS AGREEMENT AND OTHER LOAN DOCUMENTS. This Agreement
and the other Loan Documents (including any and all schedules and
exhibits thereto), and all other documents and certificates furnished
to the Agent by the Borrower or its Subsidiaries on or prior to the
Closing Date did not and do not contain any untrue statement of a
material fact or omit, to the extent such agreements, documents and
certificates are taken as a whole, to state a material fact necessary
in order to make the statements contained herein or therein, in the
light of the circumstances under which they were made, not misleading.
(b) MATERIAL ADVERSE EFFECT. There is no fact known to the
Borrower or any of its Subsidiaries which the Borrower has not
disclosed to the Agent in writing that has had or could be reasonably
expected to have a Material Adverse Effect.
8.22. HEDGING ARRANGEMENTS. The Borrower and its Subsidiaries have no
interest rate or currency swap arrangements nor is the Borrower or any of its
Subsidiaries party to any transaction involving derivatives or other hedging
arrangements, except as set forth on SCHEDULE 8.22 hereto and permitted under
SECTION 10.14 hereof.
8.23. SOLVENCY. Each Credit Party is Solvent after giving effect to the
transactions contemplated by the Loan Documents.
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8.24. NO CONSENTS, ETC. Neither the respective businesses or properties
of the Credit Parties or any Subsidiary, nor any relationship among the Credit
Parties or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Loan Documents
and the transactions contemplated thereby, is such as to require a consent,
approval or authorization of, or filing, registration or qualification with, any
Governmental Authority or any other Person on the part of any Credit Party as a
condition to the execution, delivery and performance of, or consummation of the
transactions contemplated by the Loan Documents, which, if not obtained or
effected, would be reasonably likely to have a Material Adverse Effect, or if
so, such consent, approval, authorization, filing, registration or qualification
has been duly obtained or effected, as the case may be.
8.25. COLLATERAL LOCATIONS. No personal property of the Borrower or any
Subsidiary constituting Collateral is held at any location other than (a) at a
location that is Mortgaged Property, (b) at other leased locations with respect
to which the Borrower has delivered to the Agent a Landlord Waiver, (c) at
leased locations not described in clause (a) or (b) above, at all of which
locations described in this clause (c) the aggregate fair market value of all
Collateral so located does not at any time exceed $500,000, (d) at the location
of a consignee of the Borrower or a Subsidiary with respect to which all
Consignment Perfection Action has been taken, or (e) at the location of a
consignee of the Borrower or a Subsidiary with respect to which all required
Consignment Perfection Action has not been taken, at all of which locations
described in this clause (e) the aggregate fair market value of all Collateral
so located does not at any time exceed (i) $3,500,000 from (and including) the
Closing Date until (but not including) the date that is thirty (30) days after
the Closing Date, (ii) $2,500,000 from (and including) the date that is thirty
(30) days after the Closing Date until (but not including) the date that is
sixty (60) days after the Closing Date, and (iii) $500,000 on the date that is
sixty (60) days after the Closing Date and any time thereafter.
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ARTICLE IX
Affirmative Covenants
---------------------
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
9.1. FINANCIAL REPORTS, ETC.
(a) As soon as practical and in any event within 95 days after
the end of each Fiscal Year of the Borrower, deliver or cause to be
delivered to the Agent and each Lender (i) consolidated balance sheets
of the Borrower and its Subsidiaries as of the end of such Fiscal Year,
and the notes thereto, and the related consolidated statements of
income, stockholders' equity and cash flows, and the respective notes
thereto, for such Fiscal Year, setting forth comparative financial
statements for the preceding Fiscal Year, all prepared in accordance
with GAAP applied on a Consistent Basis and containing, with respect to
the consolidated financial statements, opinions of Ernst & Young, LLP
or other such independent certified public accountants selected by the
Borrower and approved by the Agent, which are unqualified as to the
scope of the audit performed and as to the "going concern" status of
the Borrower and without any exception not acceptable to the Lenders,
(ii) a certificate of a Responsible Officer demonstrating compliance
with SECTIONS 10.1(a), 10.1(b) and 10.1(c) and 10.3, which certificate
shall be in the form of EXHIBIT H, and (iii) consolidating balance
sheets of the Borrower and each Guarantor as of the end of such Fiscal
Year, and the notes thereto, and the related consolidating statements
of income, and the respective notes thereto, for such Fiscal Year,
setting forth comparative financial statements for the preceding Fiscal
Year, all prepared in accordance with GAAP applied on a Consistent
Basis;
(b) as soon as practical and in any event within 50 days after
the end of each fiscal quarter (except the last fiscal quarter of any
Fiscal Year), deliver to the Agent and each Lender (i) consolidated
balance sheets of the Borrower and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated statements of income,
stockholders' equity and cash flows for such fiscal quarter and for the
period from the beginning of the then current Fiscal Year through the
end of such reporting period, and accompanied by a certificate of a
Responsible Officer to the effect that such financial statements
present fairly the financial position of the Borrower and its
Subsidiaries as of the end of such fiscal period and the results of
their operations and the changes in their financial position for such
fiscal period, in conformity with the standards set forth in SECTION
8.5(a) with respect to interim financial statements, (ii) a certificate
of a Responsible Officer containing computations for such quarter
comparable to that required pursuant to SECTION 9.1(a)(ii), and (iii)
consolidating balance sheets of the Borrower and each Guarantor as at
the end of such fiscal quarter, and the related consolidating
statements of income for such fiscal quarter and for the period from
the beginning of the then current Fiscal Year through the end of such
reporting period;
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(c) together with each delivery of the financial statements
required by SECTION 9.1(a)(i), deliver to the Agent and each Lender a
letter from the Borrower's accountants specified in SECTION 9.1(a)(i)
stating that in performing the audit necessary to render an opinion on
the financial statements delivered under SECTION 9.1(a)(i), they
obtained no knowledge of any Default or Event of Default by the
Borrower in the fulfillment of the terms and provisions of this
Agreement insofar as they relate to financial matters (which at the
date of such statement remains uncured); or if the accountants have
obtained knowledge of such Default or Event of Default, a statement
specifying the nature and period of existence thereof;
(d) promptly upon their becoming available to the Borrower,
deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which Borrower or
any Subsidiary shall file with the Securities and Exchange Commission
(or any successor thereto) or any securities exchange and (ii) any
proxy statement distributed by the Borrower or any Subsidiary to its
shareholders, bondholders or the financial community in general;
(e) concurrently with the delivery of the financial statements
referred to in SECTION 9.1(a) and the delivery of the financial
statements required to be delivered under SECTION 9.1(b) at the end of
the second quarterly period of each Fiscal Year of the Borrower,
deliver or cause to be delivered to the Agent and each Lender a report
of the Borrower with respect to the environmental matters affecting the
Borrower and the Subsidiaries in the same level of detail and of the
same scope as that furnished to the lenders under the Existing
Agreement;
(f) concurrently with the delivery of the financial statements
required to be delivered under SECTION 9.1(a) or (b), deliver or cause
to be delivered to the Agent and each Lender notice of any request for
indemnity under the terms of the Spinoff Documents and the Line of
Business Transfer Documents either delivered to, or received from,
GenCorp which, when aggregated with all other such requests would
exceed $10,000,000 and, with respect to such requests from GenCorp, the
position of the Borrower in response to such request; and
(g) promptly, from time to time, deliver or cause to be
delivered to the Agent and each Lender such other information regarding
Borrower's and any Subsidiary's operations, business affairs and
financial condition as the Agent or such Lender may reasonably request.
Subject to the provisions of SECTION 13.1(h), the Agent and the Lenders
are hereby authorized to deliver a copy of any such financial or other
information delivered hereunder to the Lenders (or any affiliate of any Lender
as necessary or beneficial to fulfill the obligations of any Lender hereunder)
or to the Agent, to any Governmental Authority having jurisdiction over the
Agent or any of the Lenders pursuant to any written request therefor or in the
ordinary course of examination of loan files, or to any other Person who shall
acquire or consider the assignment of, or acquisition of any participation
interest in, any Obligation permitted by this Agreement.
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9.2. MAINTAIN PROPERTIES. Maintain all properties necessary to its
operations in good working order and condition and make all needed repairs,
replacements and renewals to such properties, in each case as are reasonably
necessary to conduct its business as currently conducted or as contemplated
hereby, all in accordance with customary and prudent business practices.
9.3. EXISTENCE, QUALIFICATION, ETC. Except as otherwise expressly
permitted under SECTION 10.8, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and maintain its qualification to do business as a foreign
corporation and good standing in each jurisdiction in which its ownership or
lease of property or the nature of its business makes such license or
qualification necessary except where the failure to so qualify could not
reasonably be expected to have a Material Adverse Effect.
9.4. REGULATIONS AND TAXES. Comply in all material respects with all
statutes and governmental regulations and pay all taxes, assessments,
governmental charges, claims for labor, supplies, rent and any other obligation
which, if unpaid, would become a Lien against any of its properties except any
thereof being contested in good faith by appropriate proceedings diligently
conducted, as to which no Lien has attached to and is enforceable against any of
its properties and against which adequate reserves as required by GAAP have been
established.
9.5. INSURANCE, PROCEEDS AND CONDEMNATION. (a) Keep all of its
insurable properties adequately insured at all times with responsible insurance
carriers against loss or damage by fire and other hazards to the extent and in
the manner as are currently maintained and are prudent when considered in light
of the Borrower's properties and businesses and otherwise as required by the
Security Instruments, (b) maintain general public liability insurance at all
times with responsible insurance carriers against liability on account of damage
to persons and property having such limits, deductibles, exclusions,
co-insurance and other provisions providing coverages that are currently
maintained and are prudent when considered in light of the Borrower's properties
and businesses, and (c) maintain existing insurance under all applicable
workers' compensation laws (or in the alternative, maintain required reserves if
self-insured for workers' compensation purposes). Each of the policies of
insurance described in this SECTION 9.5(a) and (b) shall provide that the
insurer shall give the Agent not less than thirty (30) days' prior written
notice before any such policy shall lapse or be terminated or cancelled.
9.6. TRUE BOOKS. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements.
9.7. [Reserved.]
9.8. RIGHT OF INSPECTION. At any time prior to the Facility Termination
Date, at reasonable times, at reasonable intervals and with reasonable prior
notice to a Responsible Officer, in each case the fees, expenses and costs of
which shall be borne solely by the Borrower:
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(a) permit any Person designated by any Lender or the Agent to
visit and inspect any of the properties, corporate books and financial
reports of the Borrower or any Subsidiary and to discuss its affairs,
finances and accounts with its principal officers and independent
certified public accountants;
(b) permit any Person designated by the Agent to perform and
submit to the Agent, for the benefit of the Agent and the Lenders, an
appraisal with respect to any Mortgaged Property and, if a Default or
Event of Default has occurred and is continuing, any parcel of real
property owned by the Borrower or any Subsidiary that does not, at such
time, constitute Mortgaged Property;
(c) permit any Person designated by the Agent to perform and
submit to the Agent, for the benefit of the Agent and the Lenders, an
appraisal with respect to the Collateral other than real property; and
(d) permit the review and analysis by any Person appointed by
the Agent, and the preparation of periodic oral and written reports
thereby to the Agent and the Lenders, of the business, operations,
financial condition, management and performance of the Borrower and its
Subsidiaries as requested by the Agent.
9.9. OBSERVE ALL LAWS. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority applicable to the Borrower or any of its Subsidiaries
with respect to the conduct of its business.
9.10. GOVERNMENTAL LICENSES. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted, except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
9.11. COVENANTS EXTENDING TO OTHER PERSONS. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in SECTIONS 9.2 through 9.10, and 9.14
through 9.19 inclusive.
9.12. OFFICER'S KNOWLEDGE OF DEFAULT. Upon any senior executive officer
of the Borrower obtaining knowledge of any Default or Event of Default hereunder
or under any other obligation of the Borrower or any Subsidiary to any Lender,
cause such officer or a Responsible Officer to promptly notify the Agent of the
nature thereof, the period of existence thereof, and what action the Borrower or
such Subsidiary proposes to take with respect thereto.
9.13. SUITS OR OTHER PROCEEDINGS. Upon any Responsible Officer of the
Borrower obtaining knowledge of any litigation or other proceedings being
instituted against the Borrower or any Subsidiary by any Person, including
without limitation any Governmental Authority, or any attachment, levy,
execution or other process being instituted against any assets of the Borrower
or any Subsidiary, making a claim or claims in an aggregate amount greater than
$10,000,000 not otherwise covered by insurance, reasonably promptly deliver to
the Agent
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written notice thereof stating the nature and status of such litigation,
dispute, proceeding, levy, execution or other process.
9.14. ENVIRONMENTAL LAWS.
(a) Comply with Environmental Laws, or contest in good faith
the applicability of any such Environmental Laws or liability
thereunder, except to the extent that failure to do so would not
reasonably be expected to have a Material Adverse Effect.
(b) Promptly give notice to the Agent if the Borrower or any
of its Subsidiaries is in violation of or is not in compliance with or
has incurred liability or potential liability under Environmental Laws,
unless such violation or noncompliance could not reasonably be expected
to have a Material Adverse Effect, and promptly provide to the Agent
accurate and complete copies of any and all letters, notices,
complaints, orders, directives, claims or citations received by the
Borrower or any of its Subsidiaries relating to (i) violation or
alleged violation by the Borrower or any of its Subsidiaries of any
applicable Environmental Laws; (ii) release or threatened release into
the environment by the Borrower or any of its Subsidiaries, or by any
person handling, transporting or disposing of any Hazardous Materials
on behalf of the Borrower or any of its Subsidiaries, or any facility
or property owned or leased or operated by the Borrower or any of its
Subsidiaries, of any Hazardous Material, except where occurring
legally; or (iii) liability or alleged liability of the Borrower or any
of its Subsidiaries for the costs of cleaning up, removing, remediating
or responding to a release of Hazardous Materials, unless such
violation, release or liability could not reasonably be expected to
have a Material Adverse Effect.
(c) Defend, indemnify and hold harmless the Agent and the
Lenders, and their respective employees, agents, officers and
directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind
or nature known or unknown, contingent or otherwise, arising out of, or
in any way relating to the violation of or noncompliance with or
liability under any Environmental Laws applicable to the operations of,
liabilities assumed by, or real property owned or operated by the
Borrower or any of its Subsidiaries, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, attorneys' and consultants' fees, investigation and
laboratory fees, court costs and litigation expenses, except to the
extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. The
provisions of this SECTION 9.14(c) shall survive repayment of the
Obligations and occurrence of the Facility Termination Date.
9.15. FURTHER ASSURANCES. At the Borrower's cost and expense, upon
request of the Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents, certificates,
financing and continuation statements, and do and cause to be done such further
acts that may be reasonably necessary or advisable in the reasonable opinion of
the Agent to carry out more effectively the provisions and purposes of this
Agreement, the Security Instruments and the other Loan Documents.
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9.16. EMPLOYEE BENEFIT PLANS.
(a) With reasonable promptness, and in any event within thirty
(30) days after the end of the Fiscal Year in which such event occurs,
give notice to the Agent of (i) the establishment of any new Employee
Benefit Plan (which notice shall include a copy of such plan), (ii) the
commencement of contributions to any Employee Benefit Plan to which the
Borrower or any of its ERISA Affiliates was not previously
contributing, (iii) any material increase in the benefits of any
existing Employee Benefit Plan, (iv) each funding waiver request filed
with respect to any Employee Benefit Plan and all communications
received or sent by the Borrower or any ERISA Affiliate with respect to
such request and (v) the failure of the Borrower or any ERISA Affiliate
to make a required installment or payment under Section 302 of ERISA or
Section 412 of the Code (in the case of Employee Benefit Plans
regulated by the Code or ERISA) or under any Foreign Benefit Law (in
the case of Employee Benefit Plans regulated by any Foreign Benefit
Law) by the due date;
(b) Promptly and in any event within thirty (30) days of
becoming aware of the occurrence or forthcoming occurrence of any (i)
Termination Event or (ii) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Pension Plan or any trust created thereunder, and
unless such occurrence could not reasonably be expected to have a
Material Adverse Effect, deliver to the Agent a notice specifying the
nature thereof, what action the Borrower or any ERISA Affiliate has
taken, is taking or proposes to take with respect thereto and, when
known, any action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days deliver to the Agent copies of (i) any unfavorable
determination letter from the Internal Revenue Service regarding the
qualification of an Employee Benefit Plan under Section 401(a) of the
Code, (ii) all notices received by the Borrower or any ERISA Affiliate
of the PBGC's or any Governmental Authority's intent to terminate any
Pension Plan or to have a trustee appointed to administer any Pension
Plan, (iii) each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) filed by the Borrower or any ERISA Affiliate
with the Internal Revenue Service with respect to each Pension Plan and
(iv) all notices received by the Borrower or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA unless any such
notice relates to an event or condition that could not reasonably be
expected to have a Material Adverse Effect. The Borrower will notify
the Agent in writing within five (5) Business Days of the Borrower or
any ERISA Affiliate obtaining knowledge or reason to know that the
Borrower or any ERISA Affiliate has filed or intends to file a notice
of intent to terminate any Pension Plan under a distress termination
within the meaning of Section 4041(c) of ERISA.
9.17. CONTINUED OPERATIONS. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted.
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9.18. NEW SUBSIDIARIES. Simultaneously with the acquisition or creation
of any Subsidiary, cause to be delivered to the Agent each of the following:
(a) if the Subsidiary is a Domestic Subsidiary, a Facility
Guaranty executed by such Subsidiary substantially in the form of
EXHIBIT I;
(b) if the Subsidiary is a Domestic Subsidiary, (i) a Security
Agreement of such Subsidiary substantially in the form of EXHIBIT K,
together with such Uniform Commercial Code financing statements on Form
UCC-1 or otherwise duly executed by such Subsidiary as "Debtor" and
naming the Agent for the benefit of the Agent and the Lenders as
"Secured Party," in form, substance and number sufficient in the
reasonable opinion of the Agent and its special counsel to be filed in
all Uniform Commercial Code filing offices in all jurisdictions in
which filing is necessary or advisable to perfect in favor of the Agent
for the benefit of the Agent and the Lenders the Lien on Collateral
conferred under such Security Instrument to the extent such Lien may be
perfected by Uniform Commercial Code filing;
(c) if the Subsidiary is a Domestic Subsidiary and owns any
Intellectual Property, (i) an Intellectual Property Security Agreement
of such Subsidiary substantially in the form of EXHIBIT N and (ii) an
Intellectual Property Assignment of such Subsidiary substantially in
the form of EXHIBIT O, in each case, together with (in addition to the
Uniform Commercial Code filings referred to in SECTIONS 9.18(b) and
(f)) such financing statements and other filings with the Patent and
Trademark Office or such other office or offices of any Governmental
Authority as the Agent deems necessary, executed by such Subsidiary as
"Debtor" and naming the Agent for the benefit of the Agent and the
Lenders as "Secured Party," in form, substance and number sufficient in
the reasonable opinion of the Agent and its special counsel to be filed
in all required filing offices in all jurisdictions in which filing is
necessary or advisable to perfect in favor of the Agent for the benefit
of the Agent and the Lenders the Lien on Collateral conferred under
such Intellectual Property Security Instrument to the extent such Lien
may be perfected by filing;
(d) if the Subsidiary is either a Domestic Subsidiary or a
Direct Foreign Subsidiary, and if the Subsidiary Securities issued by
such Subsidiary that are, or are required to become, Pledged Interests,
shall be owned by a Subsidiary who has not then executed and delivered
to the Agent a Pledge Agreement granting a Lien to the Agent, for the
benefit of the Agent and the Lenders, in such equity interests, a
Pledge Agreement executed by the Subsidiary that directly owns such
Subsidiary Securities substantially in the form attached hereto as
EXHIBIT L or such other form of instrument specific to the foreign
jurisdiction of such Direct Foreign Subsidiary as the Agent, in its
sole discretion, may require, and if such Subsidiary Securities shall
be owned by the Borrower or a Subsidiary who has previously executed a
Pledge Agreement, a Pledge Agreement Supplement in the form required by
such Pledge Agreement pertaining to such Subsidiary Securities;
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(e) if the Subsidiary is a Domestic Subsidiary or a Direct
Foreign Subsidiary and the Pledged Interests issued by such Subsidiary
constitute securities under Article 8 of the Uniform Commercial Code
(i) the certificates representing 100% of such Subsidiary Securities
that are Pledged Interests and (ii) duly executed, undated stock powers
or other appropriate powers of assignment in blank affixed thereto;
(f) with respect to the pledges required by Sections 9.18(d)
and (e) (i) Uniform Commercial Code financing statements on form UCC-1
or otherwise duly executed by the pledgor as "Debtor" and naming the
Agent for the benefit of the Agent and the Lenders as "Secured Party,"
in form, substance and number sufficient in the reasonable opinion of
the Agent and its special counsel to be filed in all Uniform Commercial
Code filing offices and in all jurisdictions in which filing is
necessary or advisable to perfect in favor of the Agent for the benefit
of the Agent and the Lenders the Lien on such Subsidiary Securities and
(ii) if the Pledged Interests issued by such Subsidiary do not
constitute securities and such Subsidiary has not elected to have such
interests treated as securities under Article 8 of the applicable
Uniform Commercial Code, a control agreement from the Registrar of such
Subsidiary, in form and substance acceptable to the Agent and in which
the Registrar (1) acknowledges that the pledgor is at the date of such
acknowledgment the sole record, and to its knowledge, beneficial owner
of such Subsidiary Securities, (2) acknowledges the Lien in favor of
the Agent conferred under the Pledge Agreement and that such Lien will
be reflected on the registry for such Subsidiary Securities, (3) agrees
that it will not register any transfer of such Subsidiary Securities
nor acknowledge any Lien in favor of any other Person on such
Subsidiary Securities, without the prior written consent of the Agent,
in each instance, until it receives notice from the Agent that all
Liens on such Collateral in favor of the Agent for the benefit of the
Agent and the Lenders have been released or terminated, and (4) agrees
that upon receipt of notice from the Agent that an Event of Default has
occurred and is continuing and that the Subsidiary Securities
identified in such notice have been transferred to a transferee
identified in such notice, it will duly record such transfer of
Subsidiary Securities on the appropriate registry without requiring
further consent from the pledgor and shall thereafter treat the
transferee as the sole record and beneficial owner of such Subsidiary
Securities pending further transfer, notwithstanding any contrary
instruction received from the pledgor;
(g) if the Subsidiary is a Domestic Subsidiary and owns or
leases any real property that is Mortgaged Property, a Mortgage with
respect to each such Mortgaged Property, along with the appropriate
Real Property Support Documents required in connection with each such
Mortgage;
(h) with respect to all of the foregoing in SECTIONS 9.18(a)
through (g), a supplement to the appropriate schedules attached to the
appropriate Security Instruments listing the additional Collateral,
certified as true, correct and complete by the Authorized
Representative (provided that the failure to deliver such supplement
shall not impair the rights conferred under the Security Instruments in
after acquired Collateral);
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(i) with respect to the foregoing, an opinion or opinions of
counsel to the Subsidiary dated as of the date of delivery of the
Facility Guaranty and other Loan Documents provided for in this SECTION
9.18 and addressed to the Agent and the Lenders, in form and substance
reasonably acceptable to the Agent of similar effect to the opinions of
counsel delivered pursuant to SECTION 7.1(a)(ii); and
(j) current copies of the Organizational Documents and
Operating Documents of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners, managing members or appropriate committees thereof
(and, if required by such Organizational Documents, Operating Documents
or applicable law, of the shareholders, members or partners) of such
Subsidiary authorizing the actions and the execution and delivery of
documents described in this SECTION 9.18.
9.19. COMPLIANCE WITH CONTRACTS. Comply with the terms of all contracts
to which the Borrower or any Subsidiary is a party and maintain the terms of
such contracts as in effect on the Closing Date, except to the extent such
noncompliance or failure to maintain could not reasonably be expected to have
and does not have a Material Adverse Effect.
9.20 PERMITTED ASSET SECURITIZATION. Promptly give notice to the Agent
if (a) there is any default or event of default under any of the Securitization
Documents or there shall occur any Receivables Termination Event, any
Amortization Event, any Potential Amortization Event, any Potential Termination
Event, the Receivables Facility Termination Date, the Liquidity Termination
Date, the Amortization Date, or the Securitization Documents shall otherwise
terminate or be terminable, (b) the Permitted Asset Securitization, or any of
the Securitization Documents, is terminated, or if the Borrower or any
Subsidiary receives notice of the intent of any party to any of the
Securitization Documents to do so, or (c) the maximum amount permitted to be
securitized under any of the Securitization Documents is reduced at any time, or
if the Borrower or any Subsidiary receives notice of the intent of any party to
any of the Securitization Documents to do so.
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ARTICLE X
Negative Covenants
------------------
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, nor will it permit any
Subsidiary to:
10.1. FINANCIAL COVENANTS.
(a) CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated
Leverage Ratio to be greater than the amount set forth below as of the
end of the Four-Quarter Period ending on the corresponding date set
forth below:
Maximum Consolidated
Four-quarter Period Ending: Leverage Ratio
--------------------------- --------------
February 28, 2001 and
May 31, 2001 5.95 to 1.00
August 31, 2001 5.00 to 1.00
November 30, 2001,
February 28, 2002,
May 31, 2002, and
August 31, 2002 3.75 to 1.00
November 30, 2002
and each quarter end thereafter 3.25 to 1.00
(b) CONSOLIDATED INTEREST COVERAGE RATIO. Permit the
Consolidated Interest Coverage Ratio to be less than the amount set
forth below as of the end of the Four-Quarter Period ending on the
corresponding date set forth below:
Minimum Consolidated
Four-quarter Period Ending: Interest Coverage Ratio
--------------------------- -----------------------
February 28, 2001 and
May 31, 2001 2.00 to 1.00
August 31, 2001 2.25 to 1.00
November 30, 2001,
February 28, 2002,
May 31, 2002 and
August 31, 2002 2.75 to 1.00
November 30, 2002
and each quarter end thereafter 3.50 to 1.00
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(c) CONSOLIDATED NET WORTH. Permit Consolidated Net Worth to
be less than (i) $260,000,000 from the Closing Date until (but
excluding) the last day of the fiscal quarter that ends on or about May
31, 2001 (the "First Succeeding Quarter"), and (ii) as at the last day
of each fiscal quarter of the Borrower ending after the Closing Date
and until (but excluding) the last day of the next following fiscal
quarter of the Borrower, the sum of (a) the amount of Consolidated Net
Worth required to be maintained pursuant to this SECTION 10.1(c) as at
the end of the immediately preceding fiscal quarter (or, in the case of
the First Succeeding Quarter, required to be maintained as of the
Closing Date), plus (b) 80% of Consolidated Net Income (with no
reduction for net losses during any period) for the fiscal quarter of
the Borrower ending on such day (including within "Consolidated Net
Income" certain items otherwise excluded, as provided for in the
definition of "Consolidated Net Income"), plus (c) 100% of the
aggregate amount of all increases in the stated capital and additional
paid-in capital accounts of the Borrower resulting from the issuance,
sale or exchange of equity securities or other capital investments.
10.2. ACQUISITIONS. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (i) the Person to be (or whose assets
are to be) acquired does not oppose such Acquisition and the line or lines of
business of the Person to be acquired are substantially the same as one or more
line or lines of business conducted by the Borrower and its Subsidiaries, (ii)
no Default or Event of Default shall have occurred and be continuing either
immediately prior to or immediately after giving effect to such Acquisition,
(iii) the Borrower shall have furnished to the Agent (a) pro forma historical
financial statements as of the end of the most recently completed Fiscal Year of
the Borrower and most recent interim fiscal quarter, if applicable, giving
effect to such Acquisition and (b) a certificate in the form of EXHIBIT H
prepared on a historical pro forma basis as of the most recent date for which
financial statements have been furnished pursuant to SECTION 8.5(a) or SECTION
9.1(a) or (b) giving effect to such Acquisition, which certificate shall
demonstrate that (X) no Default or Event of Default would exist immediately
after giving effect thereto and (Y) the Consolidated Leverage Ratio is and would
be less than 3.50 to 1.00 both before and immediately after giving effect
thereto, and (iv) the Person acquired shall be a wholly-owned Subsidiary, or be
merged into the Borrower or a wholly-owned Subsidiary, immediately upon
consummation of the Acquisition (or if assets are being acquired, the acquiror
shall be the Borrower or a wholly-owned Subsidiary); PROVIDED, HOWEVER, that
notwithstanding the foregoing, the Borrower may make the Decorative Products
Acquisition so long as each of the provisions of (i), (ii), (iii) and (iv) set
forth above are satisfied except SECTION 10.2(iii)(B)(Y).
10.3. CAPITAL EXPENDITURES. Make or become committed to make Capital
Expenditures, which exceed (a) $40,000,000 in the aggregate in the Fiscal Year
of the Borrower ending November 30, 2001, and (b) $50,000,000 in the aggregate
in each Fiscal Year of the Borrower thereafter, in each case on a noncumulative
basis, with the effect that amounts not expended in any Fiscal Year may not be
carried forward to a subsequent period.
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10.4. LIENS. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary, other than the
following:
(a) Liens created under the Security Instruments in favor of
the Agent and the Lenders, and otherwise existing as of the date hereof
and as set forth in SCHEDULE 8.6;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted, which, except as expressly so specified on SCHEDULE 8.6, are
inferior in respect of the Collateral to the Liens conferred under the
Security Instruments, and with respect to which adequate reserves or
other appropriate provisions are being maintained as required by GAAP,
which Liens are not yet exercisable to effect the sale or seizure of
property subject thereto;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
30 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted, which, except as expressly so specified on
SCHEDULE 8.6, are inferior in respect of the Collateral to the Liens
conferred under the Security Instruments, and with respect to which
adequate reserves or other appropriate provisions are being maintained
as required by GAAP, which Liens are not yet exercisable to effect the
sale or seizure of property subject thereto;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or
any Subsidiary and which do not materially detract from the value of
the property to which they attach or materially impair the use thereof
to the Borrower or any Subsidiary;
(f) with respect to Mortgaged Property for which a Title
Policy is required to be issued pursuant to the terms hereof, matters
acceptable to the Agent appearing as exceptions to coverage on the
Title Policies;
(g) purchase money Liens to secure Indebtedness on any real
property or equipment otherwise permitted hereunder and incurred to
purchase such fixed assets, so
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long as (i) such Indebtedness represents not less than 90% of the
purchase price of such fixed assets as of the date of purchase thereof,
(ii) no property other than the assets so purchased is subject to such
Liens, and (iii) the total amount of Indebtedness secured by such Liens
does not exceed $2,000,000;
(h) Liens incurred in connection with Capital Leases otherwise
permitted hereunder provided that (i) no other property other than the
property subject to such Capital Leases is subject to such Liens and
(ii) the amount of Capital Lease obligations secured by such Liens does
not exceed $2,000,000;
(i) Liens on assets acquired in an Acquisition permitted under
SECTION 10.2 so long as such Liens (i) are not incurred in
contemplation of such Acquisition and (ii) do not extend to any assets
other than the assets being acquired in such Acquisition;
(j) to the extent any transfer of any accounts of the Borrower
or any Subsidiary in connection with a Permitted Receivables
Securitization is determined to be a financing arrangement rather than
a true sale, Liens on those transferred Securitization Accounts of the
Borrower or any Subsidiary, but only so long as such accounts remain
Securitization Accounts; and
(k) other Liens securing Indebtedness in de minimis amounts,
but in no event securing Indebtedness in an aggregate amount in excess
of $1,000,000.
10.5. INDEBTEDNESS.
(a) Incur, create, assume or permit to exist any Indebtedness
or any Guaranties, other than the following to the extent that an Event
of Default does not exist at the time of or occurs as a result of the
incurrence of such Indebtedness:
(i) Indebtedness existing as of the Closing Date as
set forth in SCHEDULE 8.5; PROVIDED, none of the instruments
and agreements evidencing or governing such Indebtedness shall
be amended, modified or supplemented after the Closing Date to
change any terms of subordination, repayment or rights of
enforcement, conversion, put, exchange or other rights from
such terms and rights as in effect on the Closing Date;
(ii) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan
Document;
(iii) Rate Hedging Obligations not in excess of the
amounts permitted under SECTION 10.14;
(iv) indemnification obligations under the terms of
the Spinoff Documents or the Line of Business Transfer
Documents not to exceed $35,000,000, which obligations have
been either agreed to by the Borrower or finally determined by
appropriate judicial or alternate dispute resolution
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proceedings without further appeal or action available to or
pursued by the Borrower;
(v) purchase money Indebtedness described in SECTION
10.4(g);
(vi) Indebtedness arising under Capital Leases
described in SECTION 10.4(h);
(vii) Indebtedness described under SECTIONS 10.7(e),
(f) and (g);
(viii) Indebtedness in maximum permitted principal
amount not to exceed $20,000,000 at any time outstanding
incurred in connection with the Decorative Products
Acquisition, the proceeds of which are used solely to make the
Decorative Products Acquisition, and which Indebtedness is
subordinated to the Obligations and otherwise contains such
other terms and conditions as are satisfactory to the Agent in
its sole discretion;
(ix) other Indebtedness (none of which may be applied
to the Cost of Acquisition of the Decorative Products
Acquisition) in an aggregate principal amount at any time
outstanding not to exceed $20,000,000; and
(x) to the extent the Permitted Receivables
Securitization is determined to be a financing arrangement
rather than a true sale, amounts outstanding from time to time
under the Permitted Receivables Securitization;
(b) Prepay, redeem, defease, repurchase or otherwise satisfy
any Indebtedness or any Guaranties prior to the stated maturity thereof
or make any payment in violation of any subordination terms or
agreements applicable thereto, other than prepayments of the Revolving
Credit Facility in accordance with the terms of this Agreement; and
(c) Amend, modify or supplement any of the instruments and
agreements evidencing or governing any Indebtedness or any Guaranties
to add or change any terms of subordination, events of default,
covenants, repayment or interest payable thereon or rights of
conversion, put, exchange or other rights from such terms and rights as
in effect on the Closing Date, except to the extent any such amendment,
modification or supplement could not be reasonably expected to have a
Material Adverse Effect or materially impair the position or interests
of the Agent and the Lenders.
10.6. TRANSFER OF ASSETS. Sell, lease, transfer or otherwise dispose of
any assets of Borrower or any Subsidiary other than (a) dispositions of
inventory in the ordinary course of business, (b) dispositions of assets of the
Borrower or any Subsidiary to a wholly owned Domestic Subsidiary which is a
Guarantor and has delivered to the Agent a Security Agreement and any other
Security Instruments applicable to the assets transferred, or by any Subsidiary
to the Borrower, (c) dispositions of equipment, inventory or other assets (in
addition to dispositions thereof permitted under clause (a) above) which, when
aggregated with the fair market value or book value, whichever is greater, of
all other asset dispositions during the term of this
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Agreement, does not exceed 5% of Consolidated Total Assets as calculated on
November 30, 2000, (d) dispositions of equipment which is replaced by equipment
of equal or greater utility and value within thirty (30) days of the date of
disposition thereof, (e) dispositions of property that is substantially worn,
damaged, obsolete or, in the judgment of the Borrower, no longer best used or
useful in its business or that of any Subsidiary, (f) transfers of assets
necessary to give effect to merger or consolidation transactions permitted by
SECTION 10.8, (g) the disposition of Eligible Securities in the ordinary course
of management of the investment portfolio of the Borrower and its Subsidiaries,
(h) sales of accounts receivable in connection with any Permitted Asset
Securitization, and (i) dispositions of property in connection with sale and
leaseback transactions permitted under SECTION 10.13.
10.7. INVESTMENTS. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that Borrower may maintain investments or
invest in:
(a) securities of any Person acquired in an Acquisition
permitted hereunder;
(b) Eligible Securities;
(c) investments existing as of the date hereof and as set
forth in SCHEDULE 8.4;
(d) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(e) loans and advances to and investments in Subsidiaries that
are Guarantors;
(f) loans and advances to and investments in the UK Subsidiary
provided the aggregate outstanding principal amount of such loans and
advances shall not at any time exceed $20,000,000;
(g) investments, loans and advances to Persons who are not
Guarantors provided the aggregate outstanding principal amount of such
loans and advances shall not at any time exceed $7,000,000;
(h) loans and advances to employees of the Borrower for
travel, entertainment and relocation expenses in the ordinary course of
business; and
(i) required investments in or contributions to (i) Employee
Benefit Plans, (ii) executive compensation plans, and (iii) stock or
option purchase or bonus plans or as required under ERISA or the Code
or the fiduciary standards thereunder.
10.8. MERGER OR CONSOLIDATION. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c) sell,
transfer or lease or otherwise dispose of
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all or a substantial part of its assets (other than sales permitted under
SECTION 10.6); PROVIDED, however, if no Default or Event of Default shall have
occurred and be continuing or otherwise result therefrom, (i) any Subsidiary of
the Borrower may merge or transfer all or substantially all of its assets into
or consolidate with the Borrower or any Guarantor which has delivered all
Security Instruments required under SECTION 9.18 and otherwise applicable to its
assets upon giving effect to such transaction, and (ii) in order to consummate
an Acquisition permitted by SECTION 10.2, any other Person may merge into the
Borrower or any Subsidiary and any Subsidiary may merge into any other Person
provided (a) such Person shall assume all obligations of such Subsidiary under
any Loan Document and deliver such agreements and other documents, including a
Facility Guaranty, and take such other action as the Agent may require to
evidence or confirm its express assumption of the obligations and liabilities of
its predecessor entities under the Loan Documents, including without limitation
each Security Instrument to which such Subsidiary was a party, and shall be
engaged in substantially the same or similar lines of business of such
Subsidiary and (b) the Borrower shall be the surviving corporation if a party to
any merger.
10.9. TRANSACTIONS WITH AFFILIATES. Enter into any transaction after
the Closing Date, including, without limitation, the purchase, sale, lease or
exchange of property, real or personal, or the rendering of any service, with
any Affiliate of the Borrower, except (a) that such Persons may render services
to the Borrower or its Subsidiaries for compensation at the same rates generally
paid by Persons engaged in the same or similar businesses for the same or
similar services, (b) that the Borrower or any Subsidiary may render services to
such Persons for compensation at the same rates generally charged by the
Borrower or such Subsidiary and (c) in either case in the ordinary course of
business and upon terms no less favorable to the Borrower (or any Subsidiary)
than would be obtained in a comparable arm's-length transaction with a Person
not an Affiliate of the Borrower.
10.10. COMPLIANCE WITH ERISA, THE CODE AND FOREIGN BENEFIT LAWS. With
respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC or to any Governmental Authority; or
(b) permit for a period of thirty (30) or more consecutive
days the aggregate present value of all benefit liabilities under all
Pension Plans to exceed the current value of the assets of such Pension
Plans allocable to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) to exist with respect
to any Pension Plan, whether or not waived for a period in excess of
twelve (12) consecutive months; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
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(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(i) of ERISA or a tax pursuant to Section 4975 of the Code may be
imposed unless such occurrence could not reasonably be expected to have
a Material Adverse Effect; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan which liability or increase, individually or together with all
similar liabilities and increases, could reasonably be expected to have
a Material Adverse Effect; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all respects with the provisions of ERISA, the Code, all
applicable Foreign Benefit Laws and all other applicable laws and the
regulations and interpretations thereof except where the failure to do
so would not have a Material Adverse Effect.
10.11. FISCAL YEAR. Change its Fiscal Year.
10.12. DISSOLUTION, ETC. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with (a) the dissolution or
liquidation of a Subsidiary in which all proceeds thereof are paid to the
Borrower or (b) a merger or consolidation permitted pursuant to SECTION 10.8.
10.13. LIMITATIONS ON SALES AND LEASEBACKS. Enter into any
Sale-Leaseback Transaction except for Sale-Leaseback Transactions with respect
to real or personal property acquired by the Borrower or a Subsidiary after the
Closing Date with an aggregate value not to exceed $15,000,000.
10.14. RATE HEDGING OBLIGATIONS. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except (a) pursuant to Swap Agreements in an aggregate
notional amount not to exceed at any time $200,000,000 and (b) forward currency
exchange agreements; PROVIDED, HOWEVER, that no Rate Hedging Obligations shall
be incurred for speculative purposes. Without limiting the foregoing, SCHEDULE
8.22 contains a true and correct list of all Rate Hedging Obligations as of the
Closing Date.
10.15. NEGATIVE PLEDGE CLAUSES. Enter into any agreement with any
Person other than the Agent and the Lenders pursuant to this Agreement or any
other Loan Documents which prohibits or limits the ability of any of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, PROVIDED that the Borrower and any Subsidiary may enter into such an
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agreement in connection with, and that applies only to, property acquired with
the proceeds of purchase money Indebtedness permitted hereunder.
10.16. RESTRICTED PAYMENTS. Make any Restricted Payment, issue or sell
capital stock of any Subsidiary of the Borrower (or any option, warrant or right
to acquire such stock) other than to the Borrower, or apply or set apart any of
its assets therefor or agree to do any of the foregoing other than, so long as
no Default or Event of Default would exist either before or after the making of
such Restricted Payment, cash dividends payable in the ordinary course of
business on its capital stock in an amount during any fiscal quarter of the
Borrower not to exceed $0.05 per share outstanding on the Closing Date (adjusted
for any splits, stock dividends, additional issuances or other actions
increasing the outstanding shares of the Borrower after the Closing Date).
10.17. AMENDMENT OF LINE OF BUSINESS TRANSFER DOCUMENTS AND SPINOFF
DOCUMENTS. Amend, modify or change in any manner any term or condition of any of
the Line of Business Transfer Documents or any of the Spinoff Documents (i) so
that the terms and conditions thereof are less favorable to the Agent and the
Lenders than the terms and conditions of such documents as of the Closing Date,
or (ii) that may be reasonably likely to result in a Material Adverse Effect.
10.18 DOMESTIC ASSETS. Permit at any time (a) more than ten percent
(10%) of the Consolidated Total Assets to be owned by any Person other than the
Borrower, a Domestic Subsidiary or the UK Subsidiary, provided that the UK
Subsidiary shall at no time own more than fifteen percent (15%) of the
Consolidated Total Assets or (b) more than ten percent (10%) of the Consolidated
Total Assets (excluding foreign intangible assets and the assets of the UK
Subsidiary) to be located outside the United States.
10.19 AMENDMENT OF DOCUMENTS. Without the written consent of the
Required Lenders, amend, modify or change in any manner any term or condition of
(i) any of the Securitization Documents (a) with respect to the definition of
"Receivables" therein (or any definition in substitution or replacement thereof,
or in addition thereto) or (b) increasing the Purchase Limit (as defined in the
Receivables Purchase Agreement) over $60,000,000, or (ii) any of the Joint
Venture Documents to the extent such amendment, modification or change of any
Joint Venture Document would be disadvantageous in any manner to any of the
Lenders.
10.20 COLLATERAL LOCATIONS. Permit any personal property of the
Borrower or any Subsidiary constituting Collateral to be held at any location
other than (a) a location that is Mortgaged Property, (b) at other leased
locations with respect to which the Borrower has delivered to the Agent a
Landlord Waiver, (c) Collateral with a fair market value not to exceed $500,000
at leased locations not described in clause (a) or (b) above with respect to
which the Borrower has not delivered a Landlord Waiver, (d) at the location of a
consignee of the Borrower or a Subsidiary with respect to which all Consignment
Perfection Action has been taken, and (e) at the location of a consignee of the
Borrower or a Subsidiary with respect to which all required Consignment
Perfection Action has not been taken, at all of which locations described in
this clause (e) the aggregate fair market value of all Collateral so located
does not at any time exceed (i) $3,500,000 from (and including) the Closing Date
until (but not including) the date that is
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thirty (30) days after the Closing Date, (ii) $2,500,000 from (and including)
the date that is thirty (30) days after the Closing Date until (but not
including) the date that is sixty (60) days after the Closing Date, and (iii)
$500,000 on the date that is sixty (60) days after the Closing Date and any time
thereafter.
10.21 MOTOR VEHICLES. Permit the Borrower and its Subsidiaries from
owning motor vehicles with an aggregate value, on a consolidated basis, in
excess of $5,000,000 in which the Agent has not been granted, for the benefit of
the Agent and the Lenders, a first-priority perfected security interest, subject
to no other Liens, in form and substance satisfactory to the Agent in its sole
discretion.
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ARTICLE XI
Events of Default and Acceleration
----------------------------------
11.1. EVENTS OF DEFAULT. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of ARTICLE II or ARTICLE III or Article IV,
at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts, other than principal
of any Obligation, payable to any of the Lenders or the Agent on the
date on which the same shall be due and payable and such default shall
continue for a period of three (3) or more days; or
(c) if default shall be made in the performance or observance
of any covenant set forth in SECTION 5.2, 5.4, 9.8, 9.12, 9.13, 9.15,
9.18 or ARTICLE X, or the completion of any post-closing matter as
required by Section 7.3;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for thirty (30) or more days after the earlier of receipt of
notice of such default by a Responsible Officer from the Agent or a
senior executive officer of the Borrower becomes aware of such default,
or if a default shall be made in the performance or observance of, or
shall occur under, any covenant, agreement or provision contained in
any of the other Loan Documents (beyond any applicable grace period, if
any, contained therein) or in any instrument or document evidencing or
creating any obligation, guaranty, or Lien in favor of the Agent or any
of the Lenders or delivered to the Agent or any of the Lenders in
connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than as expressly provided for hereunder or thereunder or
with the express written consent of the Agent or by reason of any
action by the Agent or the Lenders), or any Credit Party shall so state
in writing, or if without the written consent of the Lenders, this
Agreement or any other Loan Document shall be disaffirmed or shall
terminate, be terminable or be terminated or become void or
unenforceable for any reason whatsoever (other than as expressly
provided for hereunder or thereunder or with the express written
consent of the Agent or by reason of any action by the Agent or the
Lenders); or
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(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness (other than the Loans and other
Obligations) of the Borrower or any Subsidiary in an amount not less
than $2,000,000 with respect to any individual Indebtedness or
$5,000,000 with respect to all Indebtedness in the aggregate
outstanding, or (ii) a default, which is not waived, in the
performance, observance or fulfillment of any term or covenant
contained in any agreement or instrument under or pursuant to which any
such Indebtedness may have been issued, created, assumed, guaranteed or
secured by the Borrower or any Subsidiary, or (iii) any other event of
default as specified in any agreement or instrument under or pursuant
to which any such Indebtedness may have been issued, created, assumed,
guaranteed or secured by the Borrower or any Subsidiary, and such
default or event of default shall continue for more than the period of
grace, if any, therein specified, or such default or event of default
shall permit the holder of any such Indebtedness (or any agent or
trustee acting on behalf of one or more holders) to accelerate the
maturity thereof or to require the mandatory redemption, repurchase or
call thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of the Borrower or any Subsidiary pursuant to or in connection
with any Loan Document, or otherwise, shall be false or misleading in
any material respect when given; or
(g) if the Borrower or any Subsidiary shall be unable to pay
its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking liquidation, reorganization or arrangement or similar relief
under the Federal bankruptcy laws or any other applicable law or
statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or of the
whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Borrower or
any Subsidiary seeking liquidation, reorganization or arrangement or
similar relief under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state,
which petition is not dismissed within sixty (60) days; or if, under
the provisions of any other law for the relief or aid of debtors, a
court of competent jurisdiction shall assume custody or control of the
Borrower or any Subsidiary or of the whole or any substantial part of
its properties, which control is not relinquished within sixty (60)
days; or if there is commenced against the Borrower or any Subsidiary
any proceeding or petition seeking reorganization, arrangement or
similar relief under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state
which proceeding or petition remains undismissed for a period of sixty
(60) days; or if the
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Borrower or any Subsidiary takes any action to indicate its consent to
or approval of any such proceeding or petition; or
(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $5,000,000 is rendered against the Borrower
or any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's or Subsidiaries' properties for
any amount in excess of $5,000,000 (individually or in the aggregate);
and such judgment, attachment, injunction or execution remains unpaid,
unstayed, undischarged, unbonded or undismissed for a period of sixty
(60) days; or
(j) if the Borrower or any Subsidiary shall (i) substantially
change the nature of its business from that currently engaged in or,
other than (a) in the ordinary course of business (as determined by
past practices), (b) in connection with any asset sale permitted under
SECTION 10.6 hereof or (c) (with respect only to a Subsidiary) as a
result of a merger permitted under SECTION 10.8 hereof, or (ii) suspend
all or any part of its operations material to the conduct of the
business of the Borrower or any Subsidiary for a period of more than
sixty (60) days; or
(k) if the Borrower or any Subsidiary shall breach any of the
material terms or conditions of any document evidencing Rate Hedging
Obligations or any Securitization Document and such breach shall
continue beyond any grace period, if any, relating thereto pursuant to
the terms of such agreement, or if the Borrower or any Subsidiary shall
disaffirm or seek to disaffirm any such Rate Hedging Obligation or any
Securitization Document or any of its obligations thereunder; or
(l) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents; or
(m) if there shall occur or exist any Change of Control; or
(n) the Permitted Asset Securitization shall be terminated
prior to April 12, 2002; or
(o) if the Borrower or any of its Subsidiaries receives notice
of any violation, non-compliance, or liability or potential liability
under Environmental Laws, or the Borrower or any of its Subsidiaries is
in violation of or is not in compliance with or has incurred liability
or potential liability under Environmental Laws, which in either case
would reasonably be expected to result in a Material Adverse Effect and
which, with respect to any violation or non-compliance has not been
cured in all material respects during any applicable cure period,
provided that the Required Lenders have given the Borrower notice that
the same constitutes an Event of Default; or
(p) there shall occur a Receivables Termination Event, a
Potential Termination Event, an Amortization Event or a Potential
Amortization Event;
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then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(a) either or both of the following actions may be
taken: (i) the Agent may, and at the direction of the Required
Lenders shall, declare any obligation of the Lenders and the
Issuing Bank to make further Revolving Loans and Swing Line
Loans or to issue additional Letters of Credit terminated,
whereupon the obligation of each Lender to make further
Revolving Loans, of Bank of America to make further Swing Line
Loans, and of the Issuing Bank to issue additional Letters of
Credit, hereunder shall terminate immediately, and (ii) the
Agent shall at the direction of the Required Lenders, at their
option, declare by notice to the Borrower any or all of the
Obligations (other than Rate Hedging Obligations) to be
immediately due and payable, and the same, including all
interest accrued thereon and all other obligations of the
Borrower to the Agent and the Lenders, shall forthwith become
immediately due and payable without presentment, demand,
protest, notice or other formality of any kind, all of which
are hereby expressly waived, anything contained herein or in
any instrument evidencing the Obligations (other than Rate
Hedging Obligations) to the contrary notwithstanding;
PROVIDED, however, that notwithstanding the above, if there
shall occur an Event of Default under clause (g) or (h) above,
then the obligation of the Lenders to make Revolving Loans, of
Bank of America to make Swing Line Loans, and of the Issuing
Bank to issue Letters of Credit hereunder shall automatically
terminate and any and all of the Obligations (other than Rate
Hedging Obligations) shall be immediately due and payable
without the necessity of any action by the Agent or the
Required Lenders or notice to the Agent or the Lenders;
(b) The Borrower shall, upon demand of the Agent or
the Required Lenders, deposit cash with the Agent in an amount
equal to the amount of any Letter of Credit Outstandings, as
collateral security for the repayment of any future drawings
or payments under such Letters of Credit, and such amounts
shall be held by the Agent pursuant to the terms of the LC
Account Agreement; and
(c) the Agent and each of the Lenders shall have all
of the rights and remedies available under the Loan Documents
or under any applicable law.
11.2. AGENT TO ACT. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
11.3. CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to
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every other such right or remedy contained herein and therein or now or
hereafter existing at law or in equity or by statute, or otherwise.
11.4. NO WAIVER. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
11.5. ALLOCATION OF PROCEEDS. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
ARTICLE XI hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Lenders and the Issuing Bank pursuant
to SECTIONS 4.6(a), 4.6(b), 4.6(c), and 13.5;
(b) amounts due to the Agent pursuant to SECTION 4.6(d);
(c) payments of interest on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
(d) payments of principal of Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders(with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
(e) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to SECTION 11.1(b);
(f) amounts due to the Issuing Bank, the Agent and the Lenders
pursuant to SECTIONS 3.2(h), 9.14(c) and 13.9;
(g) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders;
(h) amounts due to any of the Lenders or their affiliates in
respect of Obligations consisting of liabilities under any Swap
Agreement with any of the Lenders or their affiliates on a pro rata
basis according to the amounts owed; and
(i) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
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ARTICLE XII
The Agent
---------
12.1. APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in SECTION 12.5 and
the first sentence of SECTION 12.6 hereof shall include its affiliates and its
own and its affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or
fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Credit Party or any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
12.2. RELIANCE BY AGENT. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Credit Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until the Agent
receives and accepts an
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Assignment and Acceptance executed in accordance with SECTION 13.1 hereof. As to
any matters not expressly provided for by this Agreement, the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding on all of the Lenders; PROVIDED, HOWEVER, that the
Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to any Loan Document or applicable law or
unless it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking any such action.
12.3. DEFAULTS. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to SECTION 12.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Lenders, PROVIDED that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
12.4. RIGHTS AS LENDER. With respect to its Revolving Credit Commitment
and the Loans made by it and Letters of Credit issued by it, Bank of America
(and any successor acting as Agent) in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not acting as the Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity. Bank of America (and any successor acting as Agent) and
its affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in, provide services to, and
generally engage in any kind of lending, trust, or other business with any
Credit Party or any of its Subsidiaries or affiliates as if it were not acting
as Agent, and Bank of America (and any successor acting as Agent) and its
affiliates may accept fees and other consideration from any Credit Party or any
of its Subsidiaries or affiliates for services in connection with this Agreement
or otherwise without having to account for the same to the Lenders.
12.5. INDEMNIFICATION. The Lenders agree to indemnify the Agent (to the
extent not reimbursed under SECTION 13.9 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with their
respective Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action taken or omitted
by the Agent under any Loan Document; PROVIDED that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any costs or
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expenses payable by the Borrower under SECTION 13.5, to the extent that the
Agent is not promptly reimbursed for such costs and expenses by the Borrower.
The agreements contained in this SECTION 12.5 shall survive payment in full of
the Loans and all other amounts payable under this Agreement and each other Loan
Document and the occurrence of the Facility Termination Date.
12.6. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Credit Parties and their Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any
Credit Party or any of its Subsidiaries or affiliates that may come into the
possession of the Agent or any of its affiliates.
12.7. RESIGNATION OF AGENT. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this ARTICLE XII shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
12.8. SECURITIZATION INTERCREDITOR AGREEMENT EXECUTION. Each Lender
hereby (a) authorizes the Agent, on the Closing Date, to execute and deliver the
Securitization Intercreditor Agreement on behalf of such Lender, (b) grants to
the Agent such rights and powers, including a power of attorney, as are
necessary to permit the Agent to so execute and deliver the Securitization
Intercreditor Agreement on the Closing Date, and (c) agrees that upon such
execution and delivery by the Agent pursuant to this SECTION 12.8 it will be
bound by the terms and conditions thereof.
12.9 OTHER AGENTS; LEAD MANAGERS. None of the Lenders identified on the
facing page or signature pages of this Agreement as a "co-documentation agent,"
"co-agent" "lead arranger," or "book manager" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
the Lenders so identified shall have or be deemed to have any fiduciary
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relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
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ARTICLE XIII
Miscellaneous
-------------
13.1. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Loans, its
Revolving Note, and its Revolving Credit Commitment); PROVIDED,
HOWEVER, that
(i) each such assignment shall be to an Eligible
Assignee, PROVIDED that if the Borrower's approval is required
for the assignee to be an Eligible Assignee, the assigning
Lender shall simultaneously deliver to the Agent a copy of any
request for such approval, and the Borrower shall
simultaneously deliver to the Agent a copy of any response to
such request for approval;
(ii) except in the case of an assignment to another
Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, any such partial assignment
shall be in an amount at least equal to $5,000,000 or an
integral multiple of $5,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Agreement and its Revolving Note
(except that any assignment by Bank of America shall not
include its rights, benefits or duties as the Issuing Bank or
as the provider of Swing Line Loans); and
(iv) the parties to such assignment shall execute and
deliver to the Agent for its acceptance an Assignment and
Acceptance in the form of EXHIBIT B hereto, together with any
Revolving Note subject to such assignment and a processing fee
of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the Agent
and the Borrower shall make appropriate arrangements so that, if required, new
Revolving Notes are issued to the assignor and the assignee. If the assignee is
not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Agent certification as to
exemption from deduction or withholding of Taxes in accordance with SECTION 6.6.
(b) The Agent shall maintain at its address referred to in
SECTION 13.2 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the
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recordation of the names and addresses of the Lenders and the Revolving
Credit Commitment of, and principal amount of the Revolving Loans owing
to, each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially
the form of EXHIBIT B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and
obligations under this Agreement (including all or a portion of its
Revolving Credit Commitment or its Loans); PROVIDED, HOWEVER, that (i)
such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participant
shall be entitled to the benefit of the yield protection provisions
contained in ARTICLE VI and the right of set-off contained in SECTION
13.3, and (iv) the Borrower shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole
right to enforce the obligations of the Borrower relating to its Loans
and its Note and to approve any amendment, modification, or waiver of
any provision of this Agreement (other than amendments, modifications,
or waivers decreasing the amount of principal of or the rate at which
interest is payable on such Loans or Note, extending any scheduled
principal payment date or date fixed for the payment of interest on
such Loans or Note, or extending its Revolving Credit Commitment).
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective
assignees and participants).
(g) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors
and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower which are
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contained in the Loan Documents shall inure to the benefit of the
successors and permitted assigns of the Agent, the Lenders, or any of
them. The Borrower may not assign or otherwise transfer to any other
Person any right, power, benefit, or privilege (or any interest
therein) conferred hereunder or under any of the other Loan Documents,
or delegate (by assumption or otherwise) to any other Person any duty,
obligation, or liability arising hereunder or under any of the other
Loan Documents, and any such purported assignment, delegation or other
transfer shall be void.
(h) Neither the Agent nor any Lender shall deliver to any
Person who is a potential assignee or participant hereunder any
financial or other information with respect to the Borrower not
otherwise publicly available which was received by the Agent or such
Lender from the Borrower unless the Borrower has consented to such
Person being a potential assignee or participant (which consent shall
not be unreasonably withheld or delayed) and such Person has executed
and delivered to the Borrower an agreement to be bound by the terms of
SECTION 13.15 as if it were a Lender.
13.2. NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address or telefacsimile number, as appropriate, set forth below
or such other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower:
OMNOVA Solutions Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President and
Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
OMNOVA Solutions Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) if to the Agent:
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ Carry, Agency Management
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇, Principal
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Lenders, at the addresses set forth on the
signature pages hereof and on the signature page of each Assignment and
Acceptance;
(d) if to any other Credit Party, at the address set forth on
the signature page of the Facility Guaranty or Security Instrument
executed by such Credit Party, as the case may be.
13.3. RIGHT OF SET-OFF; ADJUSTMENTS.
(a) Upon the occurrence and during the continuance of any
Event of Default, each Lender (and each of its affiliates) is hereby
authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its
affiliates) to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender,
irrespective of whether such Lender shall have made any demand under
this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; PROVIDED, HOWEVER,
that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender under this
SECTION 13.3 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of the Loans owing to it, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, or
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otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such
other Lender's Loans owing to it, or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loans owing to it,
or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; PROVIDED,
HOWEVER, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Borrower agrees
that any Lender so purchasing a participation from a Lender pursuant to
this SECTION 13.3 may, to the fullest extent permitted by law, exercise
all of its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Person were the
direct creditor of the Borrower in the amount of such participation.
13.4. SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
Revolving Credit Commitment hereunder or the Borrower has continuing obligations
hereunder unless otherwise provided herein.
13.5. EXPENSES. The Borrower agrees to pay on demand all costs and
expenses of the Agent in connection with the syndication, preparation,
execution, delivery, administration, modification, and amendment of this
Agreement, the other Loan Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and expenses of
counsel for the Agent (including the cost of internal counsel) with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable attorneys' fees and expenses and the cost of
internal counsel), in connection with the enforcement (whether through
negotiations, legal proceedings, or otherwise) of the Loan Documents and the
other documents to be delivered hereunder.
13.6. AMENDMENTS AND WAIVERS. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower or other applicable Credit
Party party to such Loan Document and either the Required Lenders or (as to Loan
Documents other than this Agreement) the Agent on behalf of the Required Lenders
(and, if ARTICLE XII or the rights or duties of the Agent are affected thereby,
by the Agent); PROVIDED that no such amendment or waiver shall, unless signed by
all the Lenders, (i) increase the Revolving Credit Commitments of the Lenders or
the Total Revolving Credit Commitment, (ii) reduce the principal of or rate of
interest on any Revolving Loan or any fees or other amounts payable hereunder,
(iii) postpone any date fixed for the payment of any scheduled installment of
principal of or interest on any Loan or any fees or other amounts payable
hereunder or for termination of any Revolving Credit Commitment, or extend
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any Letter of Credit beyond the Revolving Credit Termination Date, (iv) change
the percentage of the Revolving Credit Commitment or of the unpaid principal
amount of the Notes, or the number of Lenders, which shall be required for the
Lenders or any of them to take any action under this SECTION 13.6 or any other
provision of this Agreement, or (v) release any Guarantor or all or
substantially all of the Collateral EXCEPT (A) as expressly contemplated in the
Loan Documents or (B) in connection with and as required by transactions
permitted pursuant to SECTIONS 10.6, 10.8 or 10.12; and PROVIDED, FURTHER, that
no such amendment or waiver that affects the rights, privileges or obligations
of Bank of America as provider of Swing Line Loans, shall be effective unless
signed in writing by Bank of America or that affects the rights, privileges or
obligations of the Issuing Bank as issuer of Letters of Credit, shall be
effective unless signed in writing by the Issuing Bank.
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
13.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
13.8. TERMINATION. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Agent or any obligation of the
Borrower, the Lenders or the Agent, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Agent for the benefit of the
Lenders under the Loan Documents shall continue in full force and effect,
notwithstanding the termination of this Agreement, until all of the Obligations
have been paid in full after the termination hereof (other than Obligations in
the nature of continuing indemnities or expense reimbursement obligations not
yet due and payable, which shall continue) or the Borrower has furnished the
Lenders and the Agent with an indemnification satisfactory to the Agent and each
Lender with respect thereto. Notwithstanding the foregoing, if after receipt of
any payment of all or any part of the Obligations, any Lender is for any reason
compelled to surrender such payment to any Person because such payment is
determined to be void or voidable as a preference, impermissible setoff, a
diversion of trust funds or for any other reason, this Agreement shall continue
in full force and the Borrower shall be liable to, and shall indemnify and hold
the Agent or such Lender harmless for, the amount of such payment surrendered
until the Agent or such Lender shall have been finally and irrevocably paid in
full. The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Agent or
the Lenders in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to the Agent or the Lenders' rights under this
Agreement and shall be deemed to have been conditioned upon such payment having
become final and irrevocable.
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13.9. INDEMNIFICATION; LIMITATION OF LIABILITY. The Borrower agrees to
indemnify and hold harmless the Agent, BAS and each Lender and each of their
affiliates and their respective officers, directors, employees and counsel to
the Agent (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable fees and expenses of counsel and, without duplication,
the allocated cost of internal counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Spinoff, the Line of Business Transfer or the
Revolving Credit Facility, the Transaction Documents, any of the transactions
specified therein or herein or the actual or proposed use of the proceeds of the
Loans, except to the extent such claim, damage, loss, liability, cost, or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from (i) such Indemnified Party's gross negligence
or willful misconduct or (ii) legal proceedings commenced against such
Indemnified Party by any other Indemnified Party. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
SECTION 13.9 applies, such indemnity shall be effective whether or not the
transactions contemplated hereby are consummated. The Borrower agrees that no
Indemnified Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to it, any of its Subsidiaries or any Guarantor,
arising out of, related to or in connection with the transactions contemplated
herein or in any of the Transaction Documents, except to the extent that such
liability is found in a final non-appealable judgment by a court of competent
jurisdiction to have directly resulted from such Indemnified Party's gross
negligence or willful misconduct. The Borrower agrees not to assert any claim
against the Agent, any Lender, any of their affiliates, or any of their
respective directors, officers, employees, attorneys, agents, and advisers, for
special, indirect, consequential, or punitive damages arising out of or
otherwise relating to the Transaction Documents, any of the transactions
contemplated therein or herein or the actual or proposed use of the proceeds of
the Loans, except for claims for such special, indirect, consequential, or
punitive damages directly arising out of such party's gross negligence or
willful misconduct. Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this SECTION 13.9 shall survive the payment in full of the Loans and all
other amounts payable under this Agreement and each other Loan Document and the
occurrence of the Facility Termination Date.
13.10. SEVERABILITY. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
13.11. ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto (except that those
provisions (if any) which by the express terms of the commitment letters dated
as of July 1, 1999 and as of February 9, 2001, executed by Bank of America and
BAS and
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accepted by the Borrower, survive the closing of the Revolving Credit Facility
and Letter of Credit Facility, shall survive and continue in effect).
13.12. AGREEMENT CONTROLS. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
13.13. USURY SAVINGS CLAUSE. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, the
Borrower shall pay to the Agent an amount equal to the difference between the
amount of interest paid and the amount of interest which would have been paid if
the Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
13.14. PAYMENTS. All principal, interest, and other amounts to be paid
by the Borrower under this Agreement and the other Loan Documents shall be paid
to the Agent at the Principal Office in Dollars and in immediately available
funds, without setoff, deduction or counterclaim. Subject to the definition of
"Interest Period" herein, whenever any payment under this Agreement or any other
Loan Document shall be stated to be due on a day that is not a Business Day,
such payment may be made on the next succeeding Business Day, and such extension
of time in such case shall be included in the computation of interest and fees,
as applicable, and as the case may be.
13.15. CONFIDENTIALITY. Each Lending Party agrees to keep confidential
any information furnished or made available to it by the Borrower pursuant to
this Agreement that is marked confidential; provided that nothing herein shall
prevent any Lending Party from disclosing such information (a) to any other
Lending Party or any affiliate of any Lending Party, or any officer,
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director, employee, agent, or advisor of any Lending Party or affiliate of any
Lending Party, (b) to any other Person if reasonably incidental to the
administration of the credit facility provided herein, (c) as required by any
law, rule, or regulation, (d) upon the order of any court or administrative
agency, (e) upon the request or demand of any regulatory agency or authority,
(f) that is or becomes available to the public or that is or becomes available
to any Lending Party other than as a result of a disclosure by any Lending Party
prohibited by this Agreement, (g) in connection with any litigation to which
such Lending Party or any of its affiliates may be a party, (h) to the extent
necessary in connection with the exercise of any remedy under this Agreement or
any other Loan Document, and (i) subject to provisions substantially similar to
those contained in this Section, to any actual or proposed participant or
assignee.
13.16. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO APPLICABLE
TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
▇▇▇▇▇▇▇▇, STATE OF OHIO, UNITED STATES OF AMERICA AND, BY THE EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN,
OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 13.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF OHIO.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY
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SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENT IN THE COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF
THE BORROWER'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE
EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH
COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING, OBJECTION TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER MAY
BE AVAILABLE UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(f) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
13.17. SPECIAL FUNDING OPTION.
(a) Notwithstanding anything to the contrary contained herein,
any Lender (for the purposes of this SECTION 13.17, a "Granting
Lender") may grant to a special purpose funding vehicle (for the
purposes of this SECTION 13.17, an "SPC") the option to make, on behalf
of such Granting Lender, all or a portion of the Advances which such
Granting Lender is obligated to make (a "Funding Obligation") under the
Revolving Credit Facility, such option to be exercisable in the sole
discretion of the SPC, PROVIDED, HOWEVER, that
(i) such Granting Lender's obligations under this
Agreement and the Loan Documents shall remain unchanged,
including without limitation the indemnification obligations
of the Granting Lender pursuant to SECTION 12.5 hereof;
(ii) such Granting Lender shall remain solely
responsible to the other parties hereto for the performance of
all Funding Obligations;
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(iii) the Borrower and the Lenders shall continue to
deal solely and directly with such Granting Lender in
connection with such Granting Lender's rights and obligations
under this Agreement; the Agent shall continue to deal
directly with the Granting Lender as agent for the SPC with
respect to distribution of payment of principal, interest and
fees, notices of Conversion and Continuation and all other
matters;
(iv) such Granting Lender shall retain the sole right
to enforce the obligations of the Borrower relating to its
Loans and its Notes and its Participations and to approve any
amendment, modification, or waiver of any provisions of this
Agreement, each of which may, if so agreed in writing between
the Granting Lender and the SPC, require the prior consent of
any such SPC which has exercised the option to undertake the
Funding Obligation in connection with such Granting Lender's
Commitments and Participations and Obligations owing thereto
before the Granting Lender approves any such amendment,
modification or waiver;
(v) the granting of such option shall not constitute
an assignment to or participation of such SPC of or in the
Granting Lender's Commitments and Participations and
Obligations owing thereto;
(vi) such SPC shall not become a Lender hereunder as
a result of the granting of such option;
(vii) such SPC shall not become obligated or
committed to make Advances as a result of the granting of such
option;
(viii) if such SPC elects not to exercise such option
or otherwise fails to make all or any part of an Advance, the
Granting Lender shall retain its Funding Obligation and be
obligated to make the entire Advance or any portion of such
Advance not made by such SPC; and
(b) Advances made by an SPC hereunder shall be deemed to
satisfy the Funding Obligation and utilize the Revolving Credit
Commitment of the Granting Lender as if, and to the same extent, such
Advances were made by such Granting Lender.
(c) Each party hereto agrees that no SPC shall be liable for
any indemnity or payment under this Agreement for which a Granting
Lender would otherwise be liable so long as, and to the extent that,
the Granting Lender provides such indemnity or makes such payment.
(d) Notwithstanding anything to the contrary contained in this
Agreement, an SPC may disclose on a confidential basis any nonpublic
information relating to Advances made by such SPC hereunder to any
rating agency, commercial paper dealer or provider of any surety or
guarantee to such SPC.
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(e) This SECTION 13.17 may not be amended without the prior
written consent of the Granting Lender on behalf of which such SPC has
made all or any part of its Advances which remain outstanding at the
time of such amendment.
13.18 RELEASE AND WAIVER. Notwithstanding anything to the contrary
herein, and in further consideration of the amendments to the Existing Agreement
set forth herein, the Borrower hereby:
(a) warrants, represents and acknowledges to the Agent and
each of the Lenders as of the Closing Date that it has no existing
credit, charge, defense, counterclaim, offset, cross-complaint, claim
or demand of any kind or nature whatsoever that can be asserted to
reduce or eliminate all or any part of its respective liability to pay
the full indebtedness outstanding under the terms of the Existing
Agreement or this Agreement and each of the Loan Documents and any
other documents which evidence, guaranty or secure the Obligations;
(b) releases and forever discharges the Agent, each Lender,
and all of their respective officers, directors, employees, attorneys
and agents from any and all actions, claims, causes of action, debts,
dues, claims, demands, liabilities and obligations of every kind and
nature, both in law and in equity, known or unknown, whether matured or
unmatured, absolute or contingent, including any usury claims that
arise out of any one or more circumstances or events that occurred
prior to the Closing Date; and
(c) waives any and all claims now or hereafter arising from or
related to any delay by the Agent or any Lender in exercising any
rights or remedies under the Existing Agreement, this Agreement or any
of the other Loan Documents, including, without limitation, any delay
in foreclosing any Collateral securing any of the Obligations or
Guarantors' Obligations.
Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
SECTION 13.18 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement and each other Loan Document and the
occurrence of the Facility Termination Date.
[Signatures on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
OMNOVA SOLUTIONS INC.
By: /s/ M. E. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Senior Vice President and
-----------------------------------
Chief Financial Officer and
Treasurer
BANK OF AMERICA, N.A.,
as Agent for the Lenders
By: /s/ ▇▇▇▇▇▇▇▇ Carry
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ Carry
Title: Vice President
Signature Page 1 of 15
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
Lending Office for Base Rate Loans:
Bank of America, N.A.
CA4-706-05-09
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Credit Services West
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Bank of America, N.A.
Dallas, TX
ABA # ▇▇▇▇▇▇▇▇▇
Account No.: 3750836479
Account name: Credit Services
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Reference: Omnova Solutions
Lending Office for Eurodollar Rate Loans:
Bank of America, N.A.
CA4-706-05-09
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Credit Services West
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Bank of America, N.A.
Dallas, TX
ABA # ▇▇▇▇▇▇▇▇▇
Account No.: 3750836479
Account name: Credit Services
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Reference: Omnova Solutions
Signature Page 2 of 15
▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: First Vice President
-----------------------------------
Lending Office for Base Rate Loans:
Bank One, Michigan
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Loan Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Bank One, Michigan
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: 2891000007
Reference: OMNOVA
Attention: Detroit LSA Group
Lending Office for Eurodollar Rate Loans:
Bank One, Michigan
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Loan Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Bank One, Michigan
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: 2891000007
Reference: OMNOVA
Attention: Detroit LSA Group
Signature Page 3 of 15
125
DEUTSCHE BANK AG, New York or Cayman Islands
Branch
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Title: Director, Deutsche Bank AG, New York Branch
-------------------------------------------
By: /s/ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Title: Vice President
-------------------------------------------
Lending Office for Base Rate Loans:
Deutsche Bank AG, New York
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Deutsche Bank AG, New York
ABA# 026-00-3780
Account No.: N/A
Reference: OMNOVA Solutions
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Lending Office for Eurodollar Rate Loans:
Deutsche Bank AG, C.I. Branch
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Deutsche Bank AG, C.I. Branch
ABA# 026-00-3780
Account No.: N/A
Reference: OMNOVA Solutions
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Signature Page 4 of 15
126
COMERICA BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. Judge
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Judge
-----------------------------------
Title: Vice President
------------------------------------
Lending Office for Base Rate Loans:
Comerica Bank
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
9th Floor, MC 3268
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Comerica Bank
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇-▇▇▇▇▇-▇▇▇▇▇
Reference: OMNOVA Solutions Inc.
Attention: Commercial Loan Servicing
Lending Office for Eurodollar Rate Loans:
Comerica Bank
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
9th Floor, MC 3268
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Comerica Bank
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇-▇▇▇▇▇-▇▇▇▇▇
Reference: OMNOVA Solutions Inc.
Attention: Commercial Loan Servicing
Signature Page 5 of 15
127
FIFTH THIRD BANK
By: /s/ ▇. ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
-----------------------------------
Lending Office for Base Rate Loans:
Fifth Third Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Fifth Third Bank
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇▇
Reference: OMNOVA Solutions, Inc.
Attention: ▇▇▇ ▇▇▇▇▇
Lending Office for Eurodollar Rate Loans:
Fifth Third Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Fifth Third Bank
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇▇
Reference: OMNOVA Solutions, Inc.
Attention: ▇▇▇ ▇▇▇▇▇
Signature Page 6 of 15
128
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Vice President
------------------------------------
Lending Office for Base Rate Loans:
First Union National Bank
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
First Union National Bank
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 4659060001805
Reference: OMNOVA
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Lending Office for Eurodollar Rate Loans:
First Union National Bank
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
First Union National Bank
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 4659060001805
Reference: OMNOVA
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Notices:
First Union Securities, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page 7 of 15
129
KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Title: Vice President
------------------------------------
Lending Office for Base Rate Loans:
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
KeyBank National Association
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: N/A
Reference: OMNOVA
Attention: Commercial Loans
Lending Office for Eurodollar Rate Loans:
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
KeyBank National Association
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: N/A
Reference: OMNOVA
Attention: Commercial Loans
Signature Page 8 of 15
130
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Assistant Vice President
-----------------------------------
Lending Office for Base Rate Loans:
National City Bank
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
National City Bank
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 151804
Reference: OMNOVA Solutions Inc.
Attention: Commercial Loan Ops.
Lending Office for Eurodollar Rate Loans:
National City Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
National City Bank
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 151804
Reference: OMNOVA Solutions Inc.
Attention: Commercial Loan Ops.
Signature Page 9 of 15
131
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President
-----------------------------------
Lending Office for Base Rate Loans:
PNC Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇▇▇-▇▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
PNC Bank, National Association
ABA# 0430-00096
Account No.: N/A
Reference: OMNOVA
Attention: Commercial Loans
Lending Office for Eurodollar Rate Loans:
PNC Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇▇▇-▇▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
PNC Bank, National Association
ABA# 0430-00096
Account No.: N/A
Reference: OMNOVA
Attention: Commercial Loans
Signature Page 10 of 15
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: AVP
-----------------------------------
Lending Office for Base Rate and Eurodollar Loans:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions For Base Rate Loans:
The Bank of New York ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ABA#
021000018 Commercial Loan Servicing
Department GLA# 111-556 Reference:
OMNOVA Solutions
Specify Interest, Principal, Reserves and the
Period
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Wire Transfer Instructions for Eurodollar Rate
Loans:
The Bank of New York ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ABA#
021000018 Commercial Loan Servicing
Department GLA# 111-556 Reference:
OMNOVA Solutions
Specify Interest, Principal, Fee and the Period
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Signature Page 11 of 15
133
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Joint General Manager/Group Head
-----------------------------------
Lending Office for Base Rate Loans:
The Industrial Bank of Japan, Limited
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited, New York
Branch
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: N/A
Reference: OMNOVA Solutions Inc.
Attention: Credit Administration Department
Lending Office for Eurodollar Rate Loans:
The Industrial Bank of Japan, Limited
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited, New York
Branch
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: N/A
Reference: OMNOVA Solutions Inc.
Attention: Credit Administration Department
Signature Page 12 of 15
134
MELLON BANK, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
-----------------------------------
Lending Office for Base Rate Loans:
Mellon Bank, N.A.
Three Mellon Bank Center
Pittsburgh, Pennsylvania
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Loan Administrator
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Mellon Bank, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 990873800
Reference: OMNOVA Solutions
Attention: Loan Administration
Lending Office for Eurodollar Rate Loans:
Mellon Bank, N.A.
Three Mellon Bank Center
Pittsburgh, Pennsylvania
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Loan Administrator
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Mellon Bank, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 990873800
Reference: OMNOVA Solutions
Attention: Loan Administration
Signature Page 13 of 15
135
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Second Vice President
-----------------------------------
Lending Office for Base Rate Loans:
The Northern Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Honda
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Northern Trust Company
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 518640000
Reference: OMNOVA Solutions Inc.
Attention: Commercial Loan Department
Lending Office for Eurodollar Rate Loans:
The Northern Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Honda
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Northern Trust Company
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 518640000
Reference: OMNOVA Solutions Inc.
Attention: Commercial Loan Department
Signature Page 14 of 15
136
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
-----------------------------------
Lending Office for Base Rate Loans:
Sumitomo Mitsui Banking Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Citibank, N.A. New York
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇▇
For the Account of: Sumitomo Mitsui Banking
Corporation
Attention: Loan Operations
Reference: OMNOVA Solutions Inc.
Lending Office for Eurodollar Rate Loans:
Sumitomo Mitsui Banking Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Citibank, N.A. New York
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇▇
For the Account of: Sumitomo Mitsui Banking
Corporation
Attention: Loan Operations
Reference: OMNOVA Solutions Inc.
Signature Page 15 of 15