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Junior Intercreditor Agreement
Junior Intercreditor Agreement (37K)
Doc #137417: Click preview link for longer preview.
JUNIOR INTERCREDITOR AGREEMENT
JUNIOR INTERCREDITOR AGREEMENT dated as of July 25, 2002 between
SOLUTIA INC., a Delaware corporation (the "COMPANY"); each of the subsidiaries
of the Company identified under the caption "SUBSIDIARY GUARANTORS" on the
signature pages hereto (individually, a "SUBSIDIARY GUARANTOR" and,
collectively, the "SUBSIDIARY GUARANTORS" and, together with the Company, the
"SECURING PARTIES"); CITIBANK, N.A., as Collateral Agent for the Senior Secured
Parties referred to below (in such capacity, the "COLLATERAL AGENT"); and HSBC
BANK USA, a banking corporation duly organized and validly existing under the
laws of the State of New York, as trustee under the 2009 Notes Indenture
referred to below (in such capacity, together with its successors in such
capacity, the "TRUSTEE").
The Company, certain lenders (the "SOLUTIA LENDERS") and Citibank,
N.A., as administrative agent (in such capacity, together with its successors
and assigns, the "SOLUTIA ADMINISTRATIVE AGENT") are parties to a Second Amended
and Restated Credit Agreement dated as of July 25, 2002 (as modified and
supplemented and in effect from time to time, the "SOLUTIA CREDIT AGREEMENT"),
providing, subject to the terms and conditions thereof, for extensions of credit
(by means of loans and letters of credit) to be made by said lenders to the
Company and the other borrowers referred to therein in an aggregate principal or
face amount not exceeding $600,000,000. In addition, the Company may from time
to time be obligated to various of the Solutia Lenders (or their affiliates) in
respect of one or more hedging agreements permitted under Section 6.02(g)(v) of
the Solutia Credit Agreement.
Astaris LLC, a limited liability company organized under the laws of
Delaware ("ASTARIS"), certain lenders (the "ASTARIS LENDERS") and Bank of
America, N.A., as administrative agent (in such capacity, together with its
successors in such capacity, the "ASTARIS ADMINISTRATIVE AGENT") are parties to
a Credit Agreement dated as of September 14, 2000 (as modified and supplemented
and in effect from time to time, the "ASTARIS CREDIT AGREEMENT"), providing,
subject to the terms and conditions thereof, for loans to be made by said
lenders to Astaris in an aggregate principal amount not exceeding $275,000,000.
The obligations of Astaris under the Astaris Credit Agreement have been
partially guaranteed by the Company pursuant to a Guaranty Agreement dated as of
September 14, 2000 (as modified and supplemented and in effect from time to
time, the "ASTARIS GUARANTY AGREEMENT") by the Company in favor of Astaris LLC
and in favor of the Astaris Lenders and the Astaris Administrative Agent.
The Company, State Street Bank and Trust Company, as trustee (in such
capacity, together with its successors in such capacity, the "CO-GEN TRUSTEE"),
certain financial institutions named as purchasers therein (collectively, the
"CO-GEN PURCHASERS") and Citibank, N.A., as agent for the Co-gen Purchasers (in
such capacity, together with its successors in such capacity, the "CO-GEN
AGENT"), are parties to an Amended and Restated Participation Agreement dated as
of April 24, 1998 (as modified and supplemented and in effect from time to time,
the "CO-GEN PARTICIPATION AGREEMENT"), providing, subject to the terms and
conditions thereof, for loans and investments to be made by the Co-gen
Purchasers to the Co-gen Trustee in an aggregate principal amount not exceeding
$33,000,000. The obligations of the Co-gen Trustee under the Co-gen
Participation Agreement have been guaranteed by the Company pursuant to an
Amended and Restated Instrument Guaranty dated as of April 24, 1998 (as modified
and supplemented and in effect from time to time, the "CO-GEN GUARANTY
AGREEMENT") by the Company in favor of the
JUNIOR INTERCREDITOR AGREEMENT
{Page}
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Co-gen Trustee and the Co-gen Purchasers. In addition, the Co-gen Trustee, as
lessor, and the Company, as lessee, are party to an Amended and Restated Lease
dated as of April 24, 1998 (as modified and supplemented and in effect from time
to time, the "CO-GEN LEASE") pursuant to which the Company agrees to make
certain rent payments to the Co-gen Trustee in consideration of the lease of the
co-generation facility referred to therein, which rent payments service the
loans and investments made by the Co-gen Purchasers.
In addition, certain of the Solutia Lenders may have issued letters of
credit for the account of the Company or a Subsidiary, or may in the future
issue letters of credit for the account of the Company, which are or will be
identified in the below-referenced Senior Non-Sharing Intercreditor Agreement as
"Designated Letters of Credit" (as hereinafter defined). It is contemplated
that, in connection herewith, such Solutia Lenders will execute and deliver a
Letter of Credit Override Agreement providing for certain common terms to be
applicable to such letters of credit.
The Company is also party to an Indenture dated as of July 9, 2002
(the "2009 NOTES INDENTURE") between the Company, SOI Funding Corp. and HSBC
Bank USA, as trustee, pursuant to which SOI Funding Corp. has issued its 11.25%
Senior Secured Notes due 2009 (the "2009 NOTES"), in an aggregate principal
amount of $223,000,000 as of July 9, 2002, and which 2009 Notes have been
assumed by the Company pursuant to a Supplemental Indenture thereto, and
guaranteed by the Subsidiary Guarantors as provided in Section 10.01 thereof.
Pursuant to the Senior Non-Sharing Security Documents (as defined
below), the Securing Parties have granted to the Collateral Agent liens on
certain of the property of the Securing Parties as collateral security for the
obligations of the Securing Parties under the Solutia Credit Agreement, the
Astaris Credit Agreement, the Co-gen Guaranty Agreement, Hedging Obligations (as
defined below) and the Designated Letters of Credit.
In connection with the foregoing, the parties hereto wish to provide
for the subordination of the liens granted pursuant to the Junior Security
Documents (as defined below) in favor of the Trustee to the liens granted to the
Collateral Agent pursuant to the Senior Non-Sharing Security Documents.
Accordingly, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS, ETC.
(a) DEFINED TERMS. As used in this Agreement, the following terms have
the meanings specified below:
"ADVANCE" has the meaning assigned to such term in Section 1.01 of the
Solutia Credit Agreement.
"COLLATERAL" means, collectively, the assets of the Securing Parties
subject to the Liens of the Junior Security Documents.
"DESIGNATED LETTER OF CREDIT" has the meaning ascribed thereto in the
Senior Non-Sharing Intercreditor Agreement.
137417
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Citibank
As referenced in this Junior Intercreditor Agreement:
CITIBANK, N.A. – GUARANTORS" on the
signature pages hereto (individually, a "SUBSIDIARY GUARANTOR" and,
collectively, the "SUBSIDIARY GUARANTORS" and, together with the Company, the
"SECURING PARTIES"); CITIBANK, N.A. , as Collateral Agent for the Senior Secured
Parties referred to below (in such capacity, the "COLLATERAL AGENT"); and HSBC
BANK USA, a
_____________
Citibank,
N.A. – referred to below (in such capacity, together with its successors in such
capacity, the "TRUSTEE").
The Company, certain lenders (the "SOLUTIA LENDERS") and Citibank,
N.A. , as administrative agent (in such capacity, together with its successors
and assigns, the "SOLUTIA ADMINISTRATIVE AGENT") are parties to a Second Amended
_____________
Citibank, N.A. – with its successors in such capacity, the "CO-GEN TRUSTEE"),
certain financial institutions named as purchasers therein (collectively, the
"CO-GEN PURCHASERS") and Citibank, N.A. , as agent for the Co-gen Purchasers (in
such capacity, together with its successors in such capacity, the "CO-GEN
AGENT"), are
_____________
Citibank, N.A. – Attention: General Counsel, telephone
number (314) 674-3586, telecopier number (314) 674-2721;
(b) if to the Collateral Agent, at its address at Citibank, N.A. , 388
Greenwich Street, New York, New York 10013, Attention: Jim Simpson,
telephone number (212) 816-8208, telecopier number (212) 816-8051; and
(
_____________
CITIBANK, N.A. – Kevin Wilson
Title: President
JUNIOR INTERCREDITOR AGREEMENT
{Page}
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SOLUTIA SYSTEMS, INC.
By: /s/ Kevin Wilson
-------------------------------------
Name: Kevin Wilson
Title: President
COLLATERAL AGENT
CITIBANK, N.A. , as Collateral Agent
By: /s/ James N. Simpson
-------------------------------------
Name: James N. Simpson
Title: Vice President
TRUSTEE
HSBC BANK USA, as Trustee
By: /
_____________
dt 145870
;
Solutia
As referenced in this Junior Intercreditor Agreement:
SOLUTIA – 4.12
JUNIOR INTERCREDITOR AGREEMENT
JUNIOR INTERCREDITOR AGREEMENT dated as of July 25, 2002 between
SOLUTIA INC., a Delaware corporation (the "COMPANY"); each of the subsidiaries
of the Company identified under
"SOLUTIA – capacity, together with its successors in such
capacity, the "TRUSTEE").
The Company, certain lenders (the "SOLUTIA LENDERS") and Citibank,
N.A., as administrative agent (in such capacity, together with its successors
"SOLUTIA – N.A., as administrative agent (in such capacity, together with its successors
and assigns, the "SOLUTIA ADMINISTRATIVE AGENT") are parties to a Second Amended
and Restated Credit Agreement dated as of
"SOLUTIA – July 25, 2002 (as modified and
supplemented and in effect from time to time, the "SOLUTIA CREDIT AGREEMENT"),
providing, subject to the terms and conditions thereof, for extensions of credit
(by
Solutia – In addition, the Company may from time
to time be obligated to various of the Solutia Lenders (or their affiliates) in
respect of one or more hedging agreements permitted under Section
dt 22082
;
 BofA
As referenced in this Junior Intercreditor Agreement:
Bank of
America, – liability company organized under the laws of
Delaware ("ASTARIS"), certain lenders (the "ASTARIS LENDERS") and Bank of
America, N.A., as administrative agent (in such capacity, together with its
successors in such
dt 39898
;
|
Citibank
As referenced in this Junior Intercreditor Agreement:
CITIBANK, N.A. – GUARANTORS" on the
signature pages hereto (individually, a "SUBSIDIARY GUARANTOR" and,
collectively, the "SUBSIDIARY GUARANTORS" and, together with the Company, the
"SECURING PARTIES"); CITIBANK, N.A. , as Collateral Agent for the Senior Secured
Parties referred to below (in such capacity, the "COLLATERAL AGENT"); and HSBC
BANK USA, a
_____________
Citibank,
N.A. – referred to below (in such capacity, together with its successors in such
capacity, the "TRUSTEE").
The Company, certain lenders (the "SOLUTIA LENDERS") and Citibank,
N.A. , as administrative agent (in such capacity, together with its successors
and assigns, the "SOLUTIA ADMINISTRATIVE AGENT") are parties to a Second Amended
_____________
Citibank, N.A. – with its successors in such capacity, the "CO-GEN TRUSTEE"),
certain financial institutions named as purchasers therein (collectively, the
"CO-GEN PURCHASERS") and Citibank, N.A. , as agent for the Co-gen Purchasers (in
such capacity, together with its successors in such capacity, the "CO-GEN
AGENT"), are
_____________
Citibank, N.A. – Attention: General Counsel, telephone
number (314) 674-3586, telecopier number (314) 674-2721;
(b) if to the Collateral Agent, at its address at Citibank, N.A. , 388
Greenwich Street, New York, New York 10013, Attention: Jim Simpson,
telephone number (212) 816-8208, telecopier number (212) 816-8051; and
(
_____________
CITIBANK, N.A. – Kevin Wilson
Title: President
JUNIOR INTERCREDITOR AGREEMENT
{Page}
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SOLUTIA SYSTEMS, INC.
By: /s/ Kevin Wilson
-------------------------------------
Name: Kevin Wilson
Title: President
COLLATERAL AGENT
CITIBANK, N.A. , as Collateral Agent
By: /s/ James N. Simpson
-------------------------------------
Name: James N. Simpson
Title: Vice President
TRUSTEE
HSBC BANK USA, as Trustee
By: /
_____________
dt 145870
;
HSBC Bank USA;
Astaris LLC
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Subscribers | 2002 |
Intercreditor Agreement
Intercreditor Agreement (78K)
Doc #137699: Click preview link for longer preview.
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT ("Intercreditor Agreement"), dated as of May 24, 2002, is by and among Guggenheim Investment Management, LLC, a Delaware limited liability company, in its capacity as collateral agent pursuant to the Guggenheim Loan Agreement (as hereinafter defined) for the purchasers who are party from time to time thereto (in such capacity, together with its successors and assigns in such capacity, "Guggenheim", as hereinafter further defined), the purchasers from time to time party to the Guggenheim Loan Agreement (the "Guggenheim Purchasers" as hereinafter further defined), Foothill Capital Corporation, a California corporation, in its capacity as agent pursuant to the Working Capital Loan Agreement (as hereinafter defined) for the lenders who are party from time to time thereto (in such capacity, together with its successors and assigns in such capacity, the "Agent", as hereinafter further defined) and the lenders from time to time party to the Working Capital Loan Agreement (the "Working Capital Lenders" as hereinafter further defined).
R E C I T A L S:
A. Guggenheim Purchasers have entered into one or more financing arrangements with ClimaChem (as herein defined), pursuant to which Guggenheim and the Guggenheim Purchasers have made and may, upon certain terms and conditions, continue to make loans to ClimaChem secured by a security interest in substantially all of the assets and properties of ClimaChem and certain other Obligors (as hereinafter defined).
B. Working Capital Lenders have entered into one or more financing arrangements with Borrowers (as herein defined), including ClimaChem, pursuant to which Agent and the Working Capital Lenders have made and may, upon certain terms and conditions, continue to make loans and provide other financial accommodations to Borrowers secured by a security interest in substantially all of the assets and properties of Borrowers and certain other Obligors.
C. Guggenheim, Guggenheim Purchasers, Agent and Working Capital Lenders desire to enter into this Intercreditor Agreement to (i) confirm the relative priorities of the security interests of Guggenheim and Guggenheim Purchasers, on the one hand, and Agent and Working Capital Lenders, on the other hand, in the assets and properties of Borrowers and certain Obligors, and (ii) provide for the orderly sharing among them, in accordance with such priorities, of the proceeds of such assets and properties upon any foreclosure thereon or other disposition thereof.
In consideration of the mutual benefits accruing to Guggenheim, Guggenheim Purchasers, Agent and Working Capital Lenders hereunder and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
- DEFINITIONS.
As used above and in this Intercreditor Agreement, the following terms shall have the meanings ascribed to them below:
1
1.1 "Agent" shall mean Foothill Capital Corporation, a California corporation, in its capacity as agent pursuant to the Working Capital Loan Agreement for the benefit and on behalf of Working Capital Lenders, and its successors and assigns (and including, without limitation, any successor, assignee or additional person at any time acting as agent for the benefit of or on behalf of it and/or Working Capital Lenders).
1.2 "Agreements" shall mean, collectively, the Guggenheim Loan Documents and the Working Capital Loan Documents.
137699
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LSB Industries
As referenced in this Intercreditor Agreement:
LSB INDUSTRIES, – any of the Lenders to effectuate the provisions and purposes of the foregoing Intercreditor Agreement.
LSB INDUSTRIES, INC.,
an Delaware corporation
By: /s/ Tony M. Shelby
Title:
CLIMACHEM, INC.,
an Oklahoma
dt 21796
;
| Guggenheim Investment Management, LLC
|
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Subscribers | 2001 |
Construction / Permanent Loan Agreement
Construction / Permanent Loan Agreement (43K)
Doc #143307: Click preview link for longer preview.
CONSTRUCTION/PERMANENT LOAN AGREEMENT
THIS AGREEMENT dated June 7, 2001, by and between New Millennium Bank, its
successors and assigns located at 57 Livingston Avenue, New Brunswick, New
Jersey 08903 (hereinafter referred to as the "Bank"),
and
HYDROMER, INC., A NJ Corporation, having an address at 35 Industrial Parkway,
Branchburg, New Jersey 08876 hereinafter referred to as the "Borrower").
This Agreement specifies the terms of the construction loan from the Bank to the
Borrower in an amount not to exceed the sum of ONE MILLION AND 00/100 DOLLARS
($1,000,000.00) which sum is to be used for the sole purpose of constructing an
addition to the existing building on property located at 35 Industrial Parkway,
Branchburg, Somerset County, New Jersey, (the "Project") , as defined herein, to
be erected by the Borrower on said real property located in the Township of
Branchburg, County of Somerset, and State of New Jersey, as more fully described
in Schedule "All attached hereto (hereinafter referred to as the "Premises") .
After the construction phase as defined herein, the loan shall be converted to a
permanent loan in the amount of $1,000,000.00 to be repaid over a period of
fifteen (15) years as more particularly set forth in a commitment letter issued
by the Bank dated July 11, 2000 (the "Commitment"), as amended March 21, 2001,
the terms and conditions of which are made a part hereof.
NOW, THEREFORE, in consideration of these premises and the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
DEFINITIONS
1. "Advance" or "Advances" shall include all payments of money to the Borrower
at any time and in any amount and regardless of whether in accordance with the
terms of this Agreement.
2. "Bank" shall mean New Millennium Bank, its successors or assigns.
3. "Borrower", in addition to the named Borrower, shall also include any and all
persons, firms, associations or corporations which may be directly or
indirectly, primarily or secondarily, liable for any debt contemplated hereunder
of Borrower to the Bank.
4. "Completion Date" shall mean that date, up to eighteen (18) months from the
date hereof on which if all conditions set forth herein are met, the final
advance shall be made.
143307
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Hydromer
As referenced in this Construction / Permanent Loan Agreement:
HYDROMER, – 57 Livingston Avenue, New Brunswick, New
Jersey 08903 (hereinafter referred to as the "Bank"),
and
HYDROMER, INC., A NJ Corporation, having an address at 35 Industrial Parkway,
Branchburg, New Jersey
Hydromer, – day and year first above written.
Signed :
/s/ Manfred F. Dyck
-------------------------------
Manfred F. Dyck, President
Hydromer, Inc.
Witness:
/s/ Robert J. Moravsik
-----------------------------
Robert J. Moravsik, Secretary
{PAGE}
SCHEDULEA-LEGAL DESCRIPTION
dt 21777
;
| New Millennium Bank
|
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Subscribers | 2003 |
Reimbursement Agreement
Reimbursement Agreement (117K)
Doc #153204: Click preview link for longer preview.
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT is dated as of March 1, 1993 ("this
Agreement") between LESCO, INC. (the "Company"), a corporation established and
existing under the laws of the State of Ohio, and PITTSBURGH NATIONAL BANK, a
national banking association (the "Bank").
PRELIMINARY STATEMENT
The County of Belmont, Ohio (the "Issuer") has entered into an Indenture
of Trust dated as of January 1, 1988 (the "Indenture") with The Bank of New
York, formerly Irving Trust Company, as trustee (the "Trustee"), for the purpose
of issuing $5,875,000 in aggregate principal amount of its Industrial
Development Revenue Bonds (Lesco, Inc. Project) (the "Bonds"). The Issuer and
the Company have entered into a Loan Agreement dated as of January 1, 1988 (the
"Loan Agreement") pursuant to which the Issuer has loaned the net proceeds from
the issuance of the Bonds to the Company to enable the Company to finance the
cost of acquisition, construction and rehabilitation of a manufacturing facility
and the acquisition of certain machinery and equipment.
In order that the Bonds may have been marketed at an interest rate lower
than that available based solely on the credit of the Company and to provide
funds for the payment of principal of, premium on and interest on the Bonds and
the purchase of Bonds at the demand of the holders thereof at the times and in
accordance with the conditions provided in the Indenture, Irving Trust Company,
the predecessor to The Bank of New York ("BONY"), issued an irrevocable letter
of credit in the original amount of $6,230,720.00 to the Trustee and for the
account of the Company (the "Original Letter of Credit").
The Obligations of the Company under this Agreement shall be secured by a
first-priority pledge of and security interest in Pledged Bonds and Funds
Collateral and in a Mortgage dated as of January 1, 1988 (as amended or
supplemented from time to time, the "Mortgage") between the Company, the Bank
(as assignee of BONY) and the Trustee, wherein the Company has granted a
first-priority Lien on and security interest in the Mortgaged Property of the
Project.
The first-priority Lien and security interest of the Bank under the
Mortgage shall be shared co-equally with the Trustee. The obligations of the
Company to the Director of Development of the State of Ohio under the Credit
Agreement (as defined herein) shall also be secured under the Mortgage by a
first-priority Lien and security interest on the Project in accordance with the
terms and conditions of the Mortgage.
{PAGE}
The Company has requested that the Bank issue its letter of credit in the
form attached hereto as Schedule I (such letter of credit as the same may be
duly amended or supplemented from time to time, and any letter of credit issued
in connection with the transfer of such letter of credit as so amended and
supplemented, being hereinafter referred to as the "Letter of Credit") in
substitution for and replacement of the Original Letter of Credit, and the Bank
has agreed to issue the Letter of Credit, but only upon the terms and conditions
set forth herein.
In consideration of the foregoing and in order to induce the Bank to issue
the Letter of Credit, the Company and the Bank hereby agree as follows:
ARTICLE I
CERTAIN DEFINED TERMS
SECTION 1.01 Definitions. As used in this Agreement, the following terms
shall have the following meanings unless specifically stated otherwise (such
meanings to be equally applicable to both the singular and the plural forms of
the terms defined):
"A Drawing" means a drawing under the Letter of Credit by presentation of
a certificate in the form of Exhibit A thereto to pay principal on the Bonds.
"Affiliate" means, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Law" means all applicable provisions of all constitutions;
statutes, rules, regulations and orders of all governmental and non-governmental
bodies, all Governmental Approvals and all orders, judgments and decrees of all
courts and arbitrators.
"B Drawing" means a drawing under the Letter of Credit by presentation of
a certificate in the form of Exhibit B thereto to pay purchase price, or a
portion of purchase price, corresponding to the principal amount of Bonds
delivered for purchase pursuant to the Indenture.
"Bank" means Pittsburgh National Bank, a national banking association, and
its successors and assigns, in its capacity as the issuer of the Letter of
Credit.
153204
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LESCO
As referenced in this Reimbursement Agreement:
lesco, – REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT is dated as of March 1, 1993 ("this
Agreement") between LESCO, INC. (the "Company"), a corporation established and
existing under the laws of the State
(lesco, – of issuing $5,875,000 in aggregate principal amount of its Industrial
Development Revenue Bonds (Lesco, Inc. Project) (the "Bonds"). The Issuer and
the Company have entered into a Loan
lesco, – with such principles.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Lesco, Inc., an Ohio corporation, and its successors and
assigns.
"Consolidated" refers to the consolidation
lesco, – addresses and telecopier, telex and telephone numbers:
(i) if to the Company, to it at:
Lesco, Inc.
20005 Lake Road
Rocky River, Ohio 44116
Telecopier No.: (216) 333-7789
Telephone
lesco, – their duly authorized officers, all as of the
day and year first above written.
ATTEST: LESCO, INC.
By /s/ Kenneth Didion By /s/ Daniel G. Dunstan
---------------------------------- -----------------------------------
Title Treasurer Title Chief
dt 453
;
BNY
As referenced in this Reimbursement Agreement:
Bank of New
York, – into an Indenture
of Trust dated as of January 1, 1988 (the "Indenture") with The Bank of New
York, formerly Irving Trust Company, as trustee (the "Trustee"), for the purpose
of issuing $5,
Bank of New York – accordance with the conditions provided in the Indenture, Irving Trust Company,
the predecessor to The Bank of New York ("BONY"), issued an irrevocable letter
of credit in the original amount of $6,230,
Bank of New York, – as at the date as of which total
liabilities is to be determined.
"Trustee" means Bank of New York, successor to Irving Trust Company, a New
York banking corporation, and its successors and
Bank of New York
– 8594
Telephone No.: (216) 781-9050
(iii) if to the Trustee, to it at:
The Bank of New York
101 Barclay Street
21st Floor
New York, New York 10286
Telecopier No.: (212) 815-
dt 41873
;
National City
As referenced in this Reimbursement Agreement:
National City
Bank, – its capital stock).
"Revolving Credit" means the principal amounts available under (1) a
certain agreement date March 31, 1992 between the Company and National City
Bank, a banking corporation organized and existing under the laws of the United
States of America, as Agent and the banks named therein,
_____________
National City Bank – extension
of revolving credit up to the amount of $45,000,000, as amended, and (2) any
successor agreement between the Company and National City Bank or any other
lending or financial institution.
"Revolving Loans" mean any principal amounts drawn under the Revolving
Credit.
"Single Employer Plan" means any
_____________
dt 103549
;
|
 Arter & Hadden
As referenced in this Reimbursement Agreement:
Arter & Hadden – to
such matters as the bank may reasonably request;
(iv) a favorable opinion of Messrs. Arter & Hadden , bond counsel, as
to such matters as the Bank may reasonably request;
(v)a
Arter & Hadden – 333-9250
Attention: Daniel G. Dunstan,
Chief Operating Officer
37
{PAGE}
with a copy to:
Arter & Hadden
1100 Huntington Building
Cleveland, Ohio 44115
Telecopier No.: (216) 696-2645
Telephone No.: (215)
dt 29304
;
Pittsburgh National Bank
|
| Preview
Subscribers | 2003 |
Credit Agreement
Credit Agreement (338K)
Doc #153924: Click preview link for longer preview.
CREDIT AGREEMENT
This Credit Agreement, dated as of May 28, 2003, (this Agreement) among the financial institutions from time to time parties hereto (such financial institutions, together with their respective successors and assigns, are referred to hereinafter each individually as a Lender and collectively as the Lenders), Bank One, NA having its principal office at 120 S. LaSalle Street, Chicago, IL 60603, as agent for the Lenders (in its capacity as agent, the Agent), and OMNOVA Solutions Inc., an Ohio corporation, with offices at 175 Ghent Road, Fairlawn, Ohio 44333 (the Borrower).
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders to make available to the Borrower a revolving line of credit for loans and letters of credit in an amount not to exceed $100,000,000, which extensions of credit the Borrower will use for the purposes permitted hereunder;
WHEREAS, capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings ascribed thereto in Annex A which is attached hereto and incorporated herein; the rules of construction contained therein shall govern the interpretation of this Agreement, and all Annexes, Exhibits and Schedules attached hereto are incorporated herein by reference;
WHEREAS, the Lenders have agreed to make available to the Borrower a revolving credit facility upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the Lenders, the Agent, and the Borrower hereby agree as follows.
ARTICLE 1
LOANS AND LETTERS OF CREDIT
1.1 Total Facility. Subject to all of the terms and conditions of this Agreement, the Lenders agree to make available a total credit facility of up to $100,000,000 (the Total Facility) to the Borrower from time to time during the term of this Agreement. The Total Facility shall be composed of a revolving line of credit consisting of Revolving Loans and Letters of Credit described herein.
1.2 Revolving Loans.
(a) (i) Amounts. Subject to the satisfaction of the conditions precedent set forth in Article 8, each Lender severally, but not jointly, agrees, upon the Borrowers request from time to time on any Business Day during the period from the Closing Date to the Termination Date, to make revolving loans, including, without duplication, Swing Line Loans (the Revolving Loans) to the Borrower in amounts not to exceed such Lenders Pro Rata Share of Availability, except for Agent Advances. The Lenders, however, in their unanimous discretion, may elect to make Revolving Loans or issue or arrange to have issued
Letters of Credit in excess of the Borrowing Base on one or more occasions, but if they do so, neither the Agent nor the Lenders shall be deemed thereby to have changed the limits of the Borrowing Base or to be obligated to exceed such limits on any other occasion. If any Borrowing would exceed Availability, the Lenders may refuse to make or may otherwise restrict the making of Revolving Loans as the Lenders determine until such excess has been eliminated, subject to the Agents authority, in its sole discretion, to make Agent Advances pursuant to the terms of Section 1.2(i).
(ii) Borrower shall execute and deliver to each Lender a note to evidence the Revolving Loan of that Lender. Each note shall be in the principal amount of the Lenders Pro Rata Share of the Revolving Loan Commitments, dated the date hereof and substantially in the form of Exhibit A-1 (each a Revolving Loan Note and, collectively, the Revolving Loan Notes). Each Revolving Loan Note shall represent the obligation of Borrower to pay the amount of Lenders Pro Rata Share of the Revolving Loan Commitments, or, if less, such Lenders Pro Rata Share of the aggregate unpaid principal amount of all Revolving Loans to Borrower together with interest thereon as prescribed in Section 1.2. The entire unpaid balance of the Revolving Loan and all other non-contingent Obligations shall be immediately due and payable in full in immediately available funds on the Termination Date.
(b) Procedure for Borrowing.
(1) Each Borrowing shall be made upon the Borrowers irrevocable written notice delivered to the Agent in the form of a notice of borrowing (Notice of Borrowing), which must be received by the Agent prior to (i) 12:00 noon (Chicago time) three Business Days prior to the requested Funding Date, in the case of Eurodollar Revolving Loans and (ii) 11:00 a.m. (Chicago time) on the requested Funding Date, in the case of Alternate Base Rate Revolving Loans, specifying:
(A) the amount of the Borrowing, which in the case of a Eurodollar Revolving Loan must equal or exceed $5,000,000 (and increments of $1,000,000 in excess of such amount) and which in the case of Alternate Base Rate Revolving Loans must equal or exceed $100,000 (and increments of $100,000 in excess of that amount);
(B) the requested Funding Date, which must be a Business Day;
(C) whether the Revolving Loans requested are to be Alternate Base Rate Revolving Loans or Eurodollar Revolving Loans (and if not specified, it shall be deemed a request for an Alternate Base Rate Revolving Loan); and
(D) the duration of the Interest Period for Eurodollar Revolving Loans (and if not specified, it shall be deemed a request for an Interest Period of one month);
provided, however, that with respect to the Borrowing to be made on the Closing Date, such Borrowings will consist of Alternate Base Rate Revolving Loans only.
(2) In lieu of delivering a Notice of Borrowing, the Borrower may give the Agent telephonic notice of such request for advances to the Designated Account on
2
or before the deadline set forth above. The Agent at all times shall be entitled to rely on such telephonic notice in making such Revolving Loans, regardless of whether any written confirmation is received.
(3) The Borrower shall have no right to request a Eurodollar Revolving Loan while a Default or Event of Default has occurred and is continuing.
(c) Reliance upon Authority. Prior to the Closing Date, the Borrower shall deliver to the Agent, a notice setting forth the account of the Borrower (Designated Account) to which the Agent is authorized to transfer the proceeds of the Revolving Loans requested hereunder. The Borrower may designate a replacement account from time to time by written notice. All such Designated Accounts must be reasonably satisfactory to the Agent. The Agent is entitled to rely conclusively on any persons request for Revolving Loans on behalf of the Borrower, so long as the proceeds thereof are to be transferred to the Designated Account. The Agent has no duty to verify the identity of any individual representing himself or herself as a person authorized by the Borrower to make such requests on its behalf.
(d) No Liability. The Agent shall not incur any liability to the Borrower as a result of acting upon any notice referred to in Sections 1.2(b) and (c), which the Agent believes in good faith to have been given by an officer or other person duly authorized by the Borrower to request Revolving Loans on its behalf. The crediting of Revolving Loans to the Designated Account conclusively establishes the obligation of the Borrower to repay such Revolving Loans as provided herein.
(e) Notice Irrevocable. Any Notice of Borrowing (or telephonic notice in lieu thereof) made pursuant to Section 1.2(b) shall be irrevocable. The Borrower shall be bound to borrow the funds requested therein in accordance therewith.
(f) Agents Election. Promptly after receipt of a Notice of Borrowing (or telephonic notice in lieu thereof), the Agent shall elect to have the terms of Section 1.2(g) or the terms of Section 1.2(h) apply to such requested Borrowing. If the Bank declines in its sole discretion to make a Swing Line Loan pursuant to Section 1.2(h), the terms of Section 1.2(g) shall apply to the requested Borrowing.
(g) Making of Revolving Loans. If Agent elects to have the terms of this Section 1.2(g) apply to a requested Borrowing, then promptly after receipt of a Notice of Borrowing or telephonic notice in lieu thereof, the Agent shall notify the Lenders by telecopy, telephone or e-mail of the requested Borrowing. Each Lender shall transfer its Pro Rata Share of the requested Borrowing available to the Agent in immediately available funds, to the account from time to time designated by Agent, not later than 12:00 noon (Chicago time) on the applicable Funding Date. After the Agents receipt of all proceeds of such Revolving Loans, the Agent shall make the proceeds of such Revolving Loans available to the Borrower on the applicable Funding Date by transferring same day funds to the account designated by the Borrower; provided, however, that the amount of Revolving Loans so made on any date shall not exceed the Availability on such date.
3
(h) Making of Swing Line Loans.
(A) If Agent elects, with the consent of the Bank, to have the terms of this Section 1.2(h) apply to a requested Borrowing, the Bank shall make a Revolving Loan in the amount of that Borrowing available to the Borrower on the applicable Funding Date by transferring same day funds to Borrowers Designated Account. Each Revolving Loan made solely by the Bank pursuant to this Section is herein referred to as a Swing Line Loan, and such Revolving Loans are collectively referred to as the Swing Line Loans. Each Swing Line Loan shall be subject to all the terms and conditions applicable to other Revolving Loans except that all payments thereon shall be payable to the Bank solely for its own account. The aggregate amount of Swing Line Loans outstanding at any time shall not exceed $10,000,000 (the Swing Line Commitment). The Agent shall not request the Bank to make any Swing Line Loan if (1) the Agent has received written notice from any Lender that one or more of the applicable conditions precedent set forth in Article 8 will not be satisfied on the requested Funding Date for the applicable Borrowing, or (2) the requested Borrowing would exceed Availability on that Funding Date.
(B) The Swing Line Loans shall be secured by the Agents Liens in and to the Collateral and shall constitute Alternate Base Rate Revolving Loans and Obligations hereunder.
(C) Borrower shall execute and deliver to the Bank a promissory note to evidence the Swing Line Commitment. Such note shall be in the principal amount of the Swing Line Commitment of the Bank, dated the Closing Date and substantially in the form of Exhibit A-2 (the Swing Line Note). The Swing Line Note shall represent the obligation of Borrower to pay the amount of the Swing Line Commitment or, if less, the aggregate unpaid principal amount of all Swing Line Loans made to Borrower together with interest thereon as prescribed in Section 2.1.
(i) Agent Advances.
(A) Subject to the limitations set forth below, the Agent is authorized by the Borrower and the Lenders, from time to time in the Agents sole discretion, (A) after the occurrence of a Default or an Event of Default, or (B) at any time that any of the other conditions precedent set forth in Article 8 have not been satisfied, to make Alternate Base Rate Revolving Loans to the Borrower on behalf of the Lenders in an aggregate amount outstanding at any time not to exceed $5,000,000 (but not to exceed the Maximum Revolver Amount) which the Agent, in its reasonable business judgment, deems necessary or desirable (1) to preserve or protect the Collateral, or any portion thereof, (2) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations, or (3) to pay any other amount chargeable to the Borrower pursuant to the terms of this Agreement, including costs, fees and expenses as described in Section 13.7 (any of such advances are herein referred to as Agent Advances); provided, that the Required Lenders may at any time revoke the Agents authorization to make Agent Advances. Any such revocation must be in writing and shall become effective prospectively upon the Agents receipt thereof.
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OMNOVA Solutions
As referenced in this Credit Agreement:
OMNOVA SOLUTIONS – MAY 28, 2003
Exhibit 10.1
CREDIT AGREEMENT
Dated as of May 28, 2003
Among
OMNOVA SOLUTIONS INC.
as the Borrower
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as the Lenders
BANK ONE, NA
OMNOVA Solutions – IL 60603, as agent for the Lenders (in its capacity as agent, the Agent), and OMNOVA Solutions Inc., an Ohio corporation, with offices at 175 Ghent Road, Fairlawn, Ohio 44333 (the Borrower).
Omnova Solutions – corporate or fictitious name other than JDRP IV, Inc. (a Jones Day shelf corporation) and Omnova Solutions Inc., or been a party to any merger or consolidation, or acquired all or substantially
Omnova Solutions – 5800 Sears Tower
Chicago, Illinois 60606
Telecopy No.: (312) 993-9767
If to the Borrower:
Omnova Solutions Inc.
175 Ghent Road
Fairlawn, OH 44333
Attention: Michael E. Hicks
Telecopy No.: (330) 869-
OMNOVA SOLUTIONS – WHEREOF, the parties have entered into this Agreement on the date first above written.
BORROWER
OMNOVA SOLUTIONS INC.
By:
/s/ M. E. Hicks
Title:
Senior Vice President, Treasurer and Chief Financial Officer
dt 22023
;
Banc One Capital
As referenced in this Credit Agreement:
BANC ONE CAPITAL MARKETS, – 2003
Among
OMNOVA SOLUTIONS INC.
as the Borrower
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as the Lenders
BANK ONE, NA
as the Agent
and
BANC ONE CAPITAL MARKETS, INC.
as the Lead Arranger and Sole Book Runner
TABLE OF CONTENTS
Section
Page
ARTICLE 1 LOANS AND LETTERS OF CREDIT
1
_____________
Banc One Capital Markets, – Fee Letter. The Borrower agrees to pay the Agent the fees set forth in the fee letter dated May 8, 2003, among Agent, Banc One Capital Markets, Inc. and Borrower at the times set forth therein.
2.5 Unused Line Fee. On the first day of each Fiscal Quarter
_____________
Banc One Capital Markets, – appurtenant thereto.
Registration Rights Agreement means that certain Registration Rights Agreement dated as of May 28, 2003 among Borrower, Deutsche Bank Securities Inc., Banc One Capital Markets, Inc. and McDonald Investments Inc.
Release means a release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration of
_____________
dt 100641
;
BNY
As referenced in this Credit Agreement:
Bank of New York, – is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a
Bank of New York, – Indenture, dated as of May 28, 2003, between OMNOVA Solutions Inc., as Issuer, and The Bank of New York, as Trustee.
Annex A-15
Instruments means all instruments as such term is defined
Bank of New York, – Borrower.
Intercreditor Agreement means the Intercreditor Agreement of even date herewith between Agent and The Bank of New York, as Trustee.
Interest Period means, as to any Eurodollar Revolving Loan, the period commencing
dt 41939
;
|
Bank One
As referenced in this Credit Agreement:
BANK ONE, NA – CREDIT AGREEMENT
Dated as of May 28, 2003
Among
OMNOVA SOLUTIONS INC.
as the Borrower
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as the Lenders
BANK ONE, NA
as the Agent
and
BANC ONE CAPITAL MARKETS, INC.
as the Lead Arranger and Sole Book Runner
TABLE OF CONTENTS
Section
Page
_____________
Bank One, NA – financial institutions, together with their respective successors and assigns, are referred to hereinafter each individually as a Lender and collectively as the Lenders), Bank One, NA having its principal office at 120 S. LaSalle Street, Chicago, IL 60603, as agent for the Lenders (in its capacity as agent,
_____________
Bank One, NA – when properly transmitted, in each case addressed to the party to be notified as follows:
If to the Agent or to the Bank:
Bank One, NA
120 South LaSalle Street
8th Floor
Chicago, Illinois 60603
Attention: Olga Khaniaeva
Telecopy No.: (312) 661-6929
with copies to:
David G.
_____________
BANK ONE, NA – date first above written.
BORROWER
OMNOVA SOLUTIONS INC.
By:
/s/ M. E. Hicks
Title:
Senior Vice President, Treasurer and Chief Financial Officer
AGENT
BANK ONE, NA , as the Agent
By:
/s/ Olga Khaniaeva
Title:
Associate Director
LENDERS
BANK ONE, NA, as a Lender
By:
/s/ Olga Khaniaeva
Title:
_____________
BANK ONE, NA – Senior Vice President, Treasurer and Chief Financial Officer
AGENT
BANK ONE, NA, as the Agent
By:
/s/ Olga Khaniaeva
Title:
Associate Director
LENDERS
BANK ONE, NA , as a Lender
By:
/s/ Olga Khaniaeva
Title:
Associate Director
S-1
[Signature Page to Credit Agreement]
ANNEX A
to
Credit Agreement
_____________
dt 100060
;
Deutsche Bank
As referenced in this Credit Agreement:
Deutsche Bank Securities Inc – thereto and the easements appurtenant thereto.
Registration Rights Agreement means that certain Registration Rights Agreement dated as of May 28, 2003 among Borrower, Deutsche Bank Securities Inc ., Banc One Capital Markets, Inc. and McDonald Investments Inc.
Release means a release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal,
_____________
dt 98564
;
More... |
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Subscribers | 2003 |
Credit Agreement [Amended and Restated]
Credit Agreement [Amended and Restated] (184K)
Doc #154446: Click preview link for longer preview.
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement")
made and entered into as of June 10, 2002 by and between LYNCH SYSTEMS, INC., a
South Dakota corporation ("Borrower"), and SUNTRUST BANK, a Georgia banking
corporation ("Lender").
WITNESSETH:
WHEREAS, the Borrower and the Lender are parties to that
certain Credit Agreement, dated as of March 30, 2001 (as amended, the "Original
Credit Agreement"), pursuant to which Lender provided Borrower with credit and
letter of credit facilities to finance the Borrower's manufacture and sale of
additional glass forming machines to buyers outside the United States and to
finance Borrower's working capital needs to support export sales;
WHEREAS, the Borrower and Lender desire to continue the
Original Credit Agreement but to make certain amendments and modifications
thereto and to certain of the Credit Documents delivered in connection therewith
(as amended, the "Original Credit Documents"), all as reflected in this
Agreement, which upon execution will supercede and replace the Original Credit
Agreement effective as of the Closing Date (as defined herein); and
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Borrower and Lender hereby agree as
follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
SECTION 1.01. DEFINITIONS. For purposes of this Agreement,
the following terms shall have the indicated meanings as set forth below:
"Account Debtor" shall mean any Person who is or may become
obligated under or on account of an Account Receivable, including, without
limitation, any Export Account Debtor.
"Accounts Receivable" shall have the meaning given such term
in the form of the Borrower Agreement attached hereto as Exhibit A.
"Adjusted Leverage Ratio" shall mean, for any particular
Person and as of any date of determination, the ratio of (a) such Person's total
liabilities determined in accordance with
{PAGE}
GAAP (including the aggregate outstanding stated amount of all Letters of Credit
issued under this Agreement but excluding liabilities for customer deposits) to
(b) such Person's Consolidated Tangible Net Worth, all as determined on a
consolidated basis.
"Adjusted Monthly LIBOR Index Rate" means for any calendar
month a rate per annum equal to the LIBOR Rate for a LIBOR Period equal to the
calendar month for which such rate is to be set.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" shall mean this Amended and Restated Credit
Agreement, as amended, supplemented or modified from time to time.
"Bankruptcy Code" shall mean the Bankruptcy Code of 1978, as
amended (11 U.S.C. Section 101 et seq.).
"Borrower" shall have the meaning given such term in the
preamble to this Agreement and shall include such Person's legal
representatives, successors and assigns.
"Borrower Agreement" shall mean any Borrower Agreement, in
form attached as Exhibit A hereto, that may be executed after the Closing Date,
as the same may be executed, amended, supplemented or modified from time to
time.
"Business Day" shall mean any day excluding a Saturday,
Sunday, any other day on which banks are required or permitted to be closed in
Atlanta, Georgia or New York, New York.
"Capital Expenditures" shall mean, for any fiscal period of
any Person, all expenditures made and liabilities incurred by such Person during
such period for the acquisition of items which are not, in accordance with GAAP,
treated as expense items for such Person in the period made or incurred or as a
prepaid expense applicable to a future period, and such term shall include that
portion of any Capitalized Lease Obligations of such Person originally incurred
during such period that is capitalized under GAAP.
"Capitalized Lease Obligations" shall mean, for any fiscal
period of any Person, any Indebtedness of such Person represented by obligations
under a lease that is required to be capitalized for financial reporting
purposes in accordance with GAAP, and the amount of such Indebtedness for
purposes hereof shall be the capitalized amount of such obligations.
"Closing Date" shall mean June 10, 2002.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
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{PAGE}
"Collateral" shall mean (i) any and all of the real or
personal property which is pledged or collaterally assigned to Lender or in
which the Lender is otherwise granted a Lien to secure the Obligations pursuant
to any and all of the Security Documents, and (ii) any and all cash and non-cash
proceeds of the foregoing.
"Consolidated Net Income (Loss)" shall mean, for any fiscal
period, the net income (or loss) of the Borrower and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP, but excluding
therefrom (to the extent otherwise included therein and without duplication) (i)
any extraordinary gains or losses, (ii) gains attributable to write-ups of
assets, (iii) any equity interest of the Borrower or any Subsidiary of the
Borrower in the unremitted earnings of any Person that is not a Subsidiary, (iv)
any income (or loss) of any Person accrued prior to the date that it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary
on the date that such Person's assets are acquired by the Borrower or any
Subsidiary, or (v) any other non-recurring gains or losses.
"Consolidated Tangible Net Worth" shall mean, as of any date,
(i) the total assets of the Borrower and its Subsidiaries that would be
reflected on the Borrower's consolidated balance sheet as of such date prepared
in accordance with GAAP, after eliminating all amounts properly attributable to
minority interests, if any, in the stock and surplus of Subsidiaries, minus the
sum of (i) the total liabilities of the Borrower and its Subsidiaries that would
be reflected on the Borrower's consolidated balance sheet as of such date
prepared in accordance with GAAP, (ii) the amount of any write-up in the book
value of any assets resulting from a revaluation thereof or any write-up in
excess of the cost of such assets acquired reflected on the consolidated balance
sheet of the Borrower as of such date prepared in accordance with GAAP and (iii)
the net stock amount of all assets of the Borrower and its Subsidiaries that
would be classified as intangible assets on a consolidated balance sheet of the
Borrower as of such date prepared in accordance with GAAP.
"Contractual Obligation" of any Person shall mean any
provision of any written agreement, instrument, security, or undertaking to
which such Person is a party or by which it or any of the property owned by it
is bound.
"Credit Documents" shall mean, collectively, this Agreement,
the Note, the Letters of Credit, and the Security Documents.
"Credit Party" shall mean, collectively, the Borrower and each
of its Subsidiaries other than M-Tron and Spinnaker.
"Default" shall mean any condition or event which would
constitute an Event of Default hereunder but for the giving of notice thereof or
the existence of any applicable cure periods set forth in Article IX hereof.
"Domestic Account Debtor" shall mean any Account Debtor which
is a United States Person.
154446
|
Lynch
As referenced in this Credit Agreement [Amended and Restated]:
lynch corporation, – the Borrower's president, chief executive officer, chief
financial officer or controller.
"Parent" shall mean Lynch Corporation, an Indiana corporation.
"Parent Guaranty" shall mean that certain Parent Guaranty
executed as of
dt 375
;
Lynch Systems, Inc.;
| Suntrust Bank
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Subscribers | 2003 |
Loan and Security Agreement
Loan and Security Agreement (481K)
Doc #154646: Click preview link for longer preview.
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT is made as of this 12th day of November, 2002, by and among FLEET CAPITAL CANADA CORPORATION, a Canadian corporation with an office at 300 The East Mall, Suite 120, Toronto, Ontario, M9B 6B7, as Canadian Agent and a Canadian Lender, FLEET CAPITAL CORPORATION, a Rhode Island corporation with an office at One South Wacker Drive, Suite 1400, Chicago, Illinois, 60606, as Administrative Agent, as U.S. Agent and a U.S. Lender, the other Lenders from time to time party hereto, ANCHOR LAMINA INC., an Ontario corporation with its chief executive office and principal place of business at 2590 Ouellette Avenue, Windsor, Ontario, N8X 1P7 and ANCHOR LAMINA AMERICA, INC., a Michigan corporation with its chief executive office and principal place of business at 38404 Country Club Drive, Suite 200, Farmington Hills, Michigan 48331. Unless otherwise specified herein, capitalized terms used in this Agreement have the meanings assigned to them in Appendix A, General Definitions. Accounting terms not otherwise specifically defined herein shall be construed in accordance with GAAP consistently applied.
SECTION 1. CREDIT FACILITY
Subject to the terms and conditions of, and in reliance upon the representations and warranties made in, this Agreement and the other Loan Documents, Lenders agree to make a Total Credit Facility of up to Cdn. $50,000,000 available upon Borrowers request therefor, as follows:
1.1. Loans.
1.1.1. Canadian Revolving Credit Loans. Each Canadian Lender agrees, severally and not jointly, for so long as no Default or Event of Default exists, to make loans denominated in Canadian Dollars (Canadian Revolving Credit Loans) to Canadian Borrower from time to time during the period from the date hereof to but not including the last day of the Term, as requested by Canadian Borrower in the manner set forth in subsection 3.1.1(i) hereof, up to a maximum principal amount at any time outstanding equal to the lesser of (i) the product of such Canadian Lenders Canadian Revolving Loan Percentage and the Aggregate Canadian Revolving Loan Commitment minus the product of such Canadian Lenders Canadian Revolving Loan Percentage and the sum of the Canadian LC Amount and the Canadian LC Obligations, and (ii) the product of such Canadian Lenders Canadian Revolving Loan Percentage and an amount equal to the Canadian Borrowing Base at such time minus the product of such Canadian Lenders Canadian Revolving Loan Percentage and the sum of the Canadian LC Amount and the Canadian LC Obligations minus the product of such Canadian Lenders Canadian Revolving Loan Percentage and reserves imposed on Canadian Borrower, if any, in accordance with this Agreement. Notwithstanding the foregoing, no Canadian Lender shall make any Canadian Revolving Credit Loan if as a result the Canadian Revolving Credit Loans of all Canadian Lenders would exceed the Revolving Credit Maximum Amount minus the Equivalent of the outstanding principal amount of the U.S. Revolving Credit Loans.
Amounts borrowed under this subsection 1.1.1 may be repaid in whole or in part and, up to but excluding the last day of the Term, reborrowed, all in accordance with the terms and conditions hereof. The Canadian Revolving Credit Loans shall be repayable in accordance with the terms of the Canadian Revolving Credit Loan Notes and shall be secured by all of the Collateral (directly, pursuant to the guarantee by U.S. Borrower set out in Section 2.13 or pursuant to any Guarantee Agreement granted by any other Person).
1.1.2. U.S. Revolving Credit Loans. Each U.S. Lender agrees, severally and not jointly, for so long as no Default or Event of Default exists, to make loans denominated in U.S. Dollars (U.S. Revolving Credit Loans) to U.S. Borrower from time to time during the period from the date hereof to but not including the last day of the Term, as requested by U.S. Borrower in the manner set forth in subsection 3.1.1(i) hereof, up to a maximum principal amount at any time outstanding equal to the lesser of: (i) the product of such U.S. Lenders U.S. Revolving Loan Percentage and the Aggregate U.S. Revolving Loan Commitment minus the product of such U.S. Lenders U.S. Revolving Loan Percentage and the sum of the U.S. LC Amount and the U.S. LC Obligations, and (ii) the product of such U.S. Lenders U.S. Revolving Loan Percentage and an amount equal to the U.S. Borrowing Base at such time minus the product of such U.S. Lenders U.S. Revolving Loan Percentage and the sum of the U.S. LC Amount and the U.S. LC Obligations minus the product of such U.S. Lenders U.S. Revolving Loan Percentage and reserves imposed on U.S. Borrower, if any, in accordance with this Agreement. Notwithstanding the foregoing, no U.S. Lender shall make any U.S. Revolving Credit if as a result the U.S. Revolving Credit Loans of all U.S. Lenders would exceed the Revolving Credit Maximum Amount minus the outstanding principal amount of the Canadian Revolving Credit Loans. Amounts borrowed under this subsection 1.1.2 may be repaid in whole or in part and, up to but excluding the last day of the Term, reborrowed, all in accordance with the terms and conditions hereof. The U.S. Revolving Credit Loans shall be repayable in accordance with the terms of the U.S. Revolving Credit Loan Notes and shall be secured by all of the Collateral (directly or pursuant to the guarantee by Canadian Borrower set out in Section 2.13 or pursuant to any Guarantee Agreement granted by any other Person).
1.1.3. Reallocations of Revolving Loan Commitments. Not more frequently than two times during the Term, the Aggregate Canadian Revolving Loan Commitment and the Aggregate U.S. Revolving Loan Commitment may be reallocated, so long as no Default or Event of Default has occurred and is continuing, upon written notice by either Borrower to Administrative Agent; provided that (i) all such reallocations shall be in integral multiples of Cdn. $1,000,000, (ii) the Aggregate Revolving Loan Commitment shall not exceed the Revolving Credit Maximum Amount, (iii) the Aggregate Canadian Revolving Loan Commitment shall not be increased to more than the Aggregate Canadian Revolving Loan Commitment as it exists on the date hereof plus Cdn. $6,000,000 and (iv) the Aggregate U.S. Revolving Loan Commitment shall not be increased to more than the Aggregate U.S. Revolving Loan Commitment as it exists on the date hereof plus the Equivalent of Cdn.
-2-
$6,000,000. Upon each such reallocation, Exhibit 1.1 shall be deemed to have been amended accordingly, and Administrative Agent, acting alone, is hereby authorized to so amend Exhibit 1.1 to evidence such reallocation.
1.1.4. Reallocations of Inventory Sublimits. Not more frequently than two times during the Term, the Canadian Inventory Sublimit and the U.S. Inventory Sublimit may be reallocated, so long as no Default or Event of Default has occurred and is continuing, upon written notice by either Borrower to Administrative Agent; provided that (i) all such reallocations shall be in integral multiples of Cdn. $1,000,000, (ii) the sum of the Canadian Inventory Sublimit and the U.S. Inventory Sublimit shall not exceed Cdn. $10,000,000, (iii) the maximum amount of the Canadian Inventory Sublimit shall not be increased to more than Cdn. $5,500,000 and (iv) the maximum amount of the U.S. Inventory Sublimit shall not be increased to more than Cdn. $8,500,000.
1.1.5. Overadvances. Insofar as Canadian Borrower may request and Canadian Agent or Majority Lenders (as provided below) may be willing in their sole and absolute discretion to cause to be made Canadian Revolving Credit Loans to Canadian Borrower at a time when the unpaid balance of Canadian Revolving Credit Loans plus the sum of the Canadian LC Amount plus the amount of Canadian LC Obligations that have not been reimbursed by Canadian Borrower or funded with a Canadian Revolving Credit Loan, plus reserves applicable to Canadian Borrower in accordance with this Agreement, exceeds, or would exceed with the making of any such Canadian Revolving Credit Loan, the Canadian Borrowing Base (and such Loan or Loans being herein referred to individually as a Canadian Overadvance and collectively, as Canadian Overadvances), Administrative Agent shall enter such Canadian Overadvances as debits in Canadian Borrowers Loan Account. Insofar as U.S. Borrower may request and U.S. Agent or Majority Lenders (as provided below) may be willing in their sole and absolute discretion to make U.S. Revolving Credit Loans to U.S. Borrower at a time when the unpaid balance of U.S. Revolving Credit Loans plus the sum of the U.S. LC Amount plus the amount of U.S. LC Obligations that have not been reimbursed by U.S. Borrower or funded with a U.S. Revolving Credit Loan, plus reserves applicable to U.S. Borrower in accordance with this Agreement, exceeds, or would exceed with the making of any such U.S. Revolving Credit Loan, the U.S. Borrowing Base (and such Loan or Loans being herein referred to individually as a U.S. Overadvance and collectively, as U.S. Overadvances), Administrative Agent shall enter such U.S. Overadvances as debits in U.S. Borrowers Loan Account. All Overadvances shall be repaid on demand, shall be secured by the Collateral and shall bear interest as provided in this Agreement for the applicable Revolving Credit Loans. Any Overadvance made pursuant to the terms hereof shall be made by the applicable Lender(s) to the applicable Borrower, ratably in accordance with their respective Revolving Loan Percentages. Overadvances in the aggregate amount of Cdn. $2,000,000 or the Equivalent thereof or less may, unless a Default or Event of Default has occurred and is continuing, be made in the sole and absolute discretion of Canadian Agent or U.S. Agent, as the case may be. Overadvances in an aggregate amount of more than Cdn. $2,000,000 or the
-3-
Equivalent thereof but less than Cdn. $5,000,000 or the Equivalent thereof may, unless a Default or an Event of Default has occurred and is continuing, be made in the sole and absolute discretion of Majority Lenders. Overadvances in an aggregate amount of Cdn. $5,000,000 or the Equivalent thereof or more and Overadvances to be made after the occurrence and during the continuation of a Default or an Event of Default shall require the consent of all Lenders. The foregoing notwithstanding, in no event, unless otherwise consented to by all Lenders, (x) shall any Overadvances be outstanding for more than ninety (90) consecutive days, (y) after all outstanding Overadvances have been repaid, shall Canadian Agent, U.S. Agent or Lenders make any additional Overadvances unless thirty (30) days or more have expired since the last date on which any Overadvances were outstanding, or (z) shall Canadian Agent or U.S. Agent make Revolving Credit Loans on behalf of the applicable Lenders under this subsection 1.1.5 to the extent such Revolving Credit Loans would cause a Lenders share of the applicable Revolving Credit Loans to exceed such Lenders Revolving Loan Commitment minus such Lenders Revolving Loan Percentage of the applicable LC Amount.
1.1.6. Use of Proceeds. The Revolving Credit Loans shall be used by Borrowers solely for (a) the satisfaction of certain existing Indebtedness of Borrowers as directed by Borrowers on the Closing Date and approved by Administrative Agent, (b) for general operating corporate purposes of Borrowers in a manner consistent with the provisions of this Agreement and all applicable laws, and (c) for other purposes permitted under this Agreement.
1.1.7. Agent Loans. Upon the occurrence and during the continuance of a Default or Event of Default, Canadian Agent, in the case of Canadian Borrower, and U.S. Agent, in the case of U.S. Borrower, in its sole discretion, may make Revolving Credit Loans on behalf of the applicable Lenders, in an aggregate amount not to exceed Cdn. $2,000,000, or the Equivalent thereof, if Canadian Agent or U.S. Agent, as applicable, in its reasonable business judgment, deems that such Revolving Credit Loans are necessary or desirable (i) to protect all or any portion of the Collateral, (ii) to enhance the likelihood, or maximize the amount of, repayment of the Loans and the other Obligations, or (iii) to pay any other amount chargeable to a Borrower pursuant to this Agreement, including without limitation costs, fees and expenses as described in Sections 2.8 and 2.9, which have not otherwise been paid by such Borrower (hereinafter, Agent Loans); provided, that (a) in no event shall the outstanding principal amount of the Revolving Credit Loans plus the aggregate LC Amount exceed the Aggregate Revolving Loan Commitment, (b) in no event (except as may be permitted by Section 1.1.5) shall the outstanding principal amount of the Canadian Revolving Credit Loans plus the Canadian LC Amount plus reserves applicable to Canadian Borrower in accordance with this Agreement exceed the Canadian Borrowing Base (as the same may be deemed to be increased pursuant to subsection 1.1.7(e) below), (c) in no event (except as may be permitted by Section 1.1.5) shall the outstanding principal amount of the U.S. Revolving Credit Loans plus the U.S. LC Amount plus reserves applicable to U.S. Borrower in accordance with this Agreement exceed the U.S. Borrowing Base (as the same may be deemed to be
154646
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Milacron
As referenced in this Loan and Security Agreement:
Milacron – Canadian Borrower or any of its Subsidiaries receives any payments resulting from the purchase price adjustment dispute with EOC GmbH, a subsidiary of Milacron Inc., (the EOC Adjustment) or the holdback of payments (the EOC Holdback) relating to the sale of the Borrowers business interests and operations
_____________
Milacron – Anchor has accepted that Mr. Biffis is owed severance based on an 18 month notice period. Anchor is otherwise defending against the claim.
Milacron Inc. is asserting various claims against Anchor Lamina Inc. arising from the Agreement on the Sale and Transfer of Assets and Shares dated
_____________
dt 225997
;
Nova Scotia
As referenced in this Loan and Security Agreement:
Bank of Nova Scotia – any currency, including all interest, commissions, legal and other costs, charges and expenses to The Bank of Nova Scotia on behalf of The Bank of Nova Scotia, The Toronto-Dominion Bank, Toronto Dominion Bank
Bank of Nova Scotia, – other costs, charges and expenses to The Bank of Nova Scotia on behalf of The Bank of Nova Scotia, The Toronto-Dominion Bank, Toronto Dominion Bank Europe Limited, Socit Gnrale (Canada), Socit Gnrale
Bank of Nova Scotia – any currency, including all interest, commissions, legal and other costs, charges and expenses to The Bank of Nova Scotia on behalf of The Bank of Nova Scotia, The Toronto-Dominion Bank, Toronto Dominion Bank
Bank of Nova Scotia, – other costs, charges and expenses to The Bank of Nova Scotia on behalf of The Bank of Nova Scotia, The Toronto-Dominion Bank, Toronto Dominion Bank Europe Limited, Socit Gnrale (Canada), Socit Gnrale
Bank of Nova Scotia – any currency, including all interest, commissions, legal and other costs, charges and expenses to The Bank of Nova Scotia on behalf of The Bank of Nova Scotia, The Toronto-Dominion Bank, Toronto Dominion Bank
dt 50270
;
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Royal Bank
As referenced in this Loan and Security Agreement:
Royal Bank of Canada – or condemnation, except where such expropriation or condemnation could not reasonably be expected to have a Material Adverse Effect.
10.1.11. Change of Ownership. (a) TD Capital Group Limited, Royal Bank of Canada and Ontario Teachers Pension Plan Board (and their respective successors and Affiliates) shall cease among them to own and control, beneficially and of record either (i) in excess of 50.
_____________
Royal Bank of Canada – a Person; provided, however, that with respect to a Borrower, Affiliate shall not include any Person which would constitute an Affiliate solely through the ownership by TD
Capital Group Limited, Royal Bank of Canada or Ontario Teachers Pension Plan Board or their respective successors or Affiliates of an interest in such Person.
Agent Loans as defined in subsection 1.1.7 of the Agreement.
_____________
dt 1454101
;
Toronto-Dominion
As referenced in this Loan and Security Agreement:
Toronto-Dominion Bank – Canadian Borrower or its Subsidiaries in respect of their Canadian employees or former employees.
Canadian Prime Rate a per annum rate of interest from time to time quoted by The Toronto-Dominion Bank as its reference rate for commercial loans made by it in Canada in Canadian Dollars. The reference rate is a rate determined by The Toronto-Dominion Bank based upon various
_____________
Toronto-Dominion Bank – quoted by The Toronto-Dominion Bank as its reference rate for commercial loans made by it in Canada in Canadian Dollars. The reference rate is a rate determined by The Toronto-Dominion Bank based upon various factors including its cost of funds and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which
_____________
Toronto-Dominion Bank, – unpaid in any currency, including all interest, commissions, legal and other costs, charges and expenses to The Bank of Nova Scotia on behalf of The Bank of Nova Scotia, The Toronto-Dominion Bank, Toronto Dominion Bank Europe Limited, Socit Gnrale (Canada), Socit Gnrale S.A., Comerica and the other financial institutions that agree from time to time to become lenders.
3.
Guarantee
_____________
Toronto-Dominion Bank, – unpaid in any currency, including all interest, commissions, legal and other costs, charges and expenses to The Bank of Nova Scotia on behalf of The Bank of Nova Scotia, The Toronto-Dominion Bank, Toronto Dominion Bank Europe Limited, Socit Gnrale (Canada), Socit Gnrale S.A., Comerica and the other financial institutions that agree from time to time to become lenders.
4.
Guarantee
_____________
Toronto-Dominion Bank, – unpaid in any currency, including all interest, commissions, legal and other costs, charges and expenses to The Bank of Nova Scotia on behalf of The Bank of Nova Scotia, The Toronto-Dominion Bank, Toronto Dominion Bank Europe Limited, Socit Gnrale (Canada), Socit Gnrale S.A., Comerica and the other financial institutions that agree from time to time to become lenders.
5.
Guarantee
_____________
dt 1447698
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Subscribers | 2003 |
Intercreditor Agreement
Intercreditor Agreement (28K)
Doc #172190: Click preview link for longer preview.
PENFORD CORPORATION
INTERCREDITOR AGREEMENT
This Intercreditor Agreement (herein, the "Agreement") is entered into
as of October 7, 2003, among Harris Trust and Savings Bank, individually
("HTSB") and as administrative agent (the "Bank Agent") for the U.S. Lenders (as
hereinafter defined), the U.S. Lenders, each of whose address is set forth under
its signature hereon, and Australia and New Zealand Banking Group Limited ABN 11
005 357 522 (the "Australian Lender"), and in its capacity as the appointed
agent of debenture holders under the Debenture Trust Deed (as hereinafter
defined) and as "Agent" under the Syndicated Facility Agreement (in each such
capacity, "Australian Agent"), and ANZ Capel Court Limited ABN 30 004 768 807 in
its capacity as "Trustee" under the Debenture Trust Deed and in its capacity as
"Security Trustee" under the Security Trust Deed (as hereinafter defined) (in
each such capacity, "Australian Trustee") (the U.S. Lenders and the Australian
Lender being referred to herein collectively as the "Lenders" and individually
as a "Lender") pertaining to the financing of Penford Corporation (the "U.S.
Borrower"), Penford Holdings Pty. Ltd ("Penford Holdings") and Penford Australia
Limited ("Penford Australia" and, together with Penford Holdings, individually
an "Australian Borrower" and collectively the "Australian Borrowers" and,
together with the U.S. Borrower and the Australian Borrowers, individually a
"Borrower" and collectively the "Borrowers").
RECITALS
A. The U.S. Borrower is a party to that certain Credit Agreement dated
as of October 7, 2003, as the same may from time t |