EXHIBIT 4(c)
EXHIBIT A
GUARANTY
This Guaranty is given as of this 15th day of March, 2001 by The
Valspar Corporation, a Delaware corporation, with an address at 1101 Third
Street South, Minneapolis, Minnesota 55415 ("Guarantor") to BNY Midwest Trust
Company, with an address at Two North La Salle Street, Suite 1020, Chicago,
Illinois 60602 (herein, with its successors and assigns, called the "Trustee").
Whereas, the Guarantor has acquired all of the outstanding capital
stock of Valspar Industries, Inc. (formerly named Lilly Industries, Inc.), an
Indiana corporation (the "Company");
Whereas, the Company is party to an Indenture dated November 10, 1997
(as the same may be amended from time to time, the "Indenture") with the Trustee
(as successor trustee) under which the Company has issued certain unsecured
senior promissory notes referred to in the Indenture as the "Securities;"
Whereas, the Company and the Guarantor wish to have the Trustee enter
into an Amendment No. 1 of even date hereof to the Indenture, and the Trustee is
willing to do so on the condition that the Guarantor provides this Guaranty of
the Securities;
Now, therefore, in consideration of the foregoing, the Guarantor hereby
agrees as follows:
1. The Guarantor absolutely and unconditionally guarantees the due and
punctual payment of the Securities and the performance by the Company of all its
obligations under the Indenture (all such obligations under the Securities and
the Indenture being hereinafter collectively referred to as the "Indebtedness").
2. No act or thing need occur to establish the liability of the
Guarantor hereunder, and no act or thing, except full payment and discharge of
all Indebtedness, shall in any way exonerate the Guarantor or modify, reduce,
limit or release the liability of the Guarantor hereunder.
3. This is an absolute, unconditional and continuing guaranty of
payment of and performance upon the Indebtedness and shall continue to be in
force and be binding upon the Guarantor until all Indebtedness is paid in full.
The Guarantor shall be liable for all principal of the Indebtedness, without any
limitation as to amount, plus accrued interest thereon and all attorneys' fees,
collection costs and enforcement expenses referable thereto.
4. The Guarantor will pay or reimburse the Trustee for all costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by
the Trustee in connection with the protection, defense or enforcement of this
guaranty in any litigation or bankruptcy or insolvency proceedings.
5. No change in the relationship between the Guarantor and Company
shall limit or impair the obligations of the Guarantor under this Guaranty. The
liability of the Guarantor shall not be affected or impaired by any of the
following acts or things (which the Trustee is expressly authorized to do, omit
or suffer from time to time, without notice to or approval by the Guarantor):
(i) any acceptance of collateral security, guarantors, accommodation parties or
sureties for any or all Indebtedness; (ii) any one or more extensions or
renewals of Indebtedness (whether or not for longer
than the original period) or any modification of the interest rates, maturities
or other contractual terms applicable to any Indebtedness; (iii) any waiver or
indulgence granted to the Company, any delay or lack of diligence in the
enforcement of Indebtedness, or any failure to institute proceedings, file a
claim, give any required notices or otherwise protect any Indebtedness, (iv) any
full or partial release of, settlement with, or agreement not to sue, the
Company or any other guarantor or other person liable in respect of any
Indebtedness; (v) any discharge of any evidence of Indebtedness or the
acceptance of any instrument in renewal thereof or substitution therefor; (vi)
any failure to obtain collateral security (including rights of setoff) for
Indebtedness, or to see to the proper or sufficient creation and perfection
thereof, or to establish the priority thereof, or to protect, insure, or enforce
any collateral security; (vii) any foreclosure or enforcement of any collateral
security; (viii) any transfer of any Indebtedness or any evidence thereof; (ix)
any order of application of any payments or credits upon Indebtedness; (x) any
election by the Trustee under ss.1111(b)(2) of the United States Bankruptcy
Code.
6. The Guarantor waives any and all defenses, claims and discharges of
the Guarantor, or any other obligor, pertaining to Indebtedness, except the
defense of discharge of payment in full. Without limiting the generality of the
foregoing, the Guarantor will not assert, plead or enforce against the Trustee
any defense of waiver, release, discharge in bankruptcy, statute of limitations,
res judicata, statute of frauds, anti-deficiency statute, fraud, incapacity,
minority, usury, illegality or unenforceability which may be available to the
Guarantor or any other person liable in respect of any Indebtedness, or any
setoff available against the Trustee to Guarantor or any such other person,
whether or not on account of a related transaction. The Guarantor expressly
agrees that the Guarantor shall be and remain liable for any deficiency
remaining after foreclosure of any mortgage or security interest securing
Indebtedness, whether or not the liability of Guarantor or any other obligor for
such deficiency is discharged pursuant to statute or judicial decision.
7. The Guarantor waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing Indebtedness.
The Trustee shall not be required first to resort for payment of the
Indebtedness to the Guarantor or other persons or their properties, or first to
enforce, realize upon or exhaust any collateral security for Indebtedness,
before enforcing this Guaranty.
8. If any payment applied by the Trustee to Indebtedness is thereafter
set aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
the Guarantor or any other obligor), the Indebtedness to which such payment was
applied shall for the purposes of this Guaranty be deemed to have continued in
existence, notwithstanding such application, and this Guaranty shall be
enforceable as to such Indebtedness as fully as if such application had never
been made.
9. The liability of the Guarantor under this Guaranty is in addition to
and shall be cumulative with all other liabilities of the Guarantor to the
Trustee as guarantor or otherwise, without any limitation as to amount, unless
the instrument or agreement evidencing or creating such other liability
specifically provides to the contrary.
10. Any notice or communication under this Guaranty to the Guarantor or
the Trustee shall be in writing and delivered in person or by courier service,
or mailed by first-class mail, to the Guarantor or the Trustee, as the case may
be, at the address set forth at the head of this Guaranty, or such other address
as is specified by the Guarantor or the Trustee, in the manner provided in this
Guaranty, for notices to it.
11. This Guaranty shall be effective upon delivery to the Trustee,
without further act, condition or acceptance by the Trustee, shall be binding
upon the Guarantor and the successors and assigns of the Guarantor and shall
inure to the benefit of the Trustee and its successors and assigns. Any
invalidity or unenforceability of any provision or application of this Guaranty
shall not affect other lawful provisions and application hereof, and to this end
the provisions of this Guaranty are declared to be severable. This Guaranty may
not be waived, modified, amended, terminated, released or otherwise changed
except by a writing signed by the Guarantor and the Trustee. The Guarantor
waives notice of the Trustee's acceptance hereof.
In Witness Whereof, the Guarantor has executed and delivered this
Guaranty as of the date first written above.
THE VALSPAR CORPORATION
By /s/ Deborah D. Weiss
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Its Treasurer
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ATTEST:
/s/ Tim Beastrom
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