- --------------------------------------------------------------------------------
FIRST AMENDMENT TO CREDIT AGREEMENT
- --------------------------------------------------------------------------------
between
LILLY INDUSTRIES, INC.
an Indiana corporation
the Lenders Signatory Hereto
and
NBD Bank, N.A., as Agent
and
HARRIS TRUST AND SAVINGS BANK
COMERICA BANK
MERCANTILE BANK OF ST. LOUIS
BANK ONE, INDIANA, N.A.
as Co-Agents
- --------------------------------------------------------------------------------
Dated as of April 2, 1997
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
PART 1. AMENDATORY PROVISIONS 1
SECTION 1. Definitions 1
1.1 Defined Terms 1
SECTION 5. Covenants 2
5.2. Negative Covenants 2
5.2.17. Capital Expenditures 2
PART II. SCHEDULE 1 2
- ------- ----------
PART III. CONTINUING EFFECT 2
PART IV. INDEPENDENT CREDIT DECISION 3
PART V. CONDITIONS PRECEDENT 3
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT made as of the 2nd day of April, 1997, by and
among LILLY INDUSTRIES, INC., an Indiana corporation (the "Borrower"), the
LENDERS party hereto, and NBD BANK, N.A., a national banking association, as
agent for the Lenders hereunder (in such capacity, the "Agent");
WITNESSETH:
WHEREAS, as of April 8, 1996, the parties hereto entered into a certain
Credit Agreement (the "Agreement"); and
WHEREAS, the Borrower has requested an increase in the permitted
capital expenditures and certain changes to the definition of the fixed charge
coverage ratio and the Lenders have consented to such changes subject to and as
provided in this First Amendment;
NOW, THEREFORE, in consideration of the premises, and the mutual
promises herein contained, the parties agree that the Agreement shall be, and it
hereby is, amended as provided herein and the parties further agree as follows:
PART I. AMENDATORY PROVISIONS
Section 1. Definitions
1.1 Defined Terms.
1.1. Section 1.1 of the Agreement is hereby amended by substituting the
following definition in lieu of the like existing definition:
"Fixed Charge Coverage Ratio" means, with respect to the
Borrower and its Subsidiaries determined on a Consolidated basis, the
ratio of (a)(i) EBITDA, minus (ii) Capital Expenditures, plus (iii)
cash received from life insurance policies surrendered by the Borrower,
plus (iv) for fiscal years 1997 and 1998 only, the lesser of (A) cash
received from the sale of any asset classified as a fixed or capital
asset on a Consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with GAAP or (B) Two Million Five
Hundred Thousand Dollars ($2,500,000), to (b) the sum of (i) interest
expense, plus (ii) scheduled principal payments in respect of
Indebtedness paid in such period, plus (iii) taxes paid, plus (iv)
Rentals, plus (v) dividends paid in such period, all as determined on
the last day of each fiscal quarter of the Borrower by reference to the
Financial Statements; in each
-1-
instance determined for the trailing four (4) quarter period ending on
the date of determination, except that for the fiscal period ending
February 28, 1997, the foregoing items (other than EBITDA and cash
received pursuant to items (a)(iii) and (iv) above) shall be determined
by multiplying each of the same as determined for the three
quarter-annual period then ending by a factor of 1.333.
Section 1.1 of the Agreement is hereby further amended by amending the
definition of "Obligations" by adding "or an Affiliate of a Lender" after "a
Lender" in the fifth line thereof.
Section 5. Covenants
5.2. Negative Covenants.
5.2.17. Capital Expenditures. Section 5.2.17 of the Agreement is hereby
amended by increasing the Maximum Capital Expenditures (a) for fiscal year 1997,
from $10,000,000 to $20,000,000, and (b) for fiscal year 1998, from $10,000,000
to an amount equal to (i) $10,000,000 plus (ii) the positive difference, if any,
of $20,000,000 minus the actual aggregate Capital Expenditures of Borrower and
its Subsidiaries during fiscal year 1997.
PART II. SCHEDULE 1
The Agreement is hereby amended by substituting Schedule 1 to this
First Amendment in lieu of Schedule I to the Agreement.
PART III. CONTINUING EFFECT
All other terms, conditions, representations, warranties and covenants
contained in the Agreement shall remain the same and shall continue in full
force and effect. In consideration hereof, the Borrower represents and warrants
that each representation and warranty set forth in the Agreement as hereby
amended, remains true and correct as of the date hereof in all material
respects, except to the extent that such representation and warranty is
expressly intended to apply solely to an earlier date and except changes
reflecting transactions permitted by the Agreement, and that there presently
exists no offsets, counterclaims or defenses to the performance of the
Obligations (such offsets, counterclaims or defenses, if any, being hereby
expressly waived), nor has there occurred any Default or Unmatured Default
thereunder, and no Default or Unmatured Default after giving effect to the
transactions contemplated or otherwise covered by this First Amendment, is or
shall be occasioned thereby. The representations and warranties contained in the
Agreement originally shall survive this First Amendment in their original form,
except as expressly herein modified, and shall survive as continuing
representations and warranties of the Borrower. Except as expressly herein
provided, the Agreement and this First Amendment shall be interpreted, wherever
possible, in a
-2-
manner consistent with one another, but in the event of any irreconcilable
inconsistency, this First Amendment shall control. Capitalized terms used herein
and not specifically herein defined shall have the meanings ascribed in the
Agreement.
PART IV. INDEPENDENT CREDIT DECISION
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender, based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this First Amendment.
PART V. CONDITIONS PRECEDENT
Notwithstanding anything contained in this First Amendment to the
contrary, the Lenders shall have no obligation under this First Amendment until
each of the following conditions precedent have been fulfilled to the
satisfaction of the Agent:
(a) Each of the conditions set forth in Section 6.2 of the
Agreement shall have been satisfied;
(b) The Agent shall have received each of the following, in
form and substance satisfactory to the Agent:
(i) The Loan Documents, as amended, duly executed in
the form approved by the Lenders;
(ii) A duly executed certificate of the Secretary or
any Assistant Secretary of the Borrower (A) certifying as to
attached copies of Resolutions of the Board of Directors of
the Borrower authorizing the execution, delivery and
performance of the Loan Documents, as amended, and any other
documents provided for in this First Amendment to which the
Borrower is a party, (B) certifying the names of the officer
or officers authorized to sign, respectively, the Loan
Documents, as amended, and any other documents provided for in
this First Amendment to which the Borrower is a party, and
containing a sample of the true signature of each such
officer, and (C) certifying as complete and correct as to
attached copies of the Articles of Incorporation and By-Laws
of the Borrower or certifying that such Articles of
Incorporation or By-Laws have not been amended (except as
shown) since the previous delivery thereof to the Agent;
(iii) An Eighty-Six Thousand Seven Hundred
Thirty-Seven and 50/100 Dollar ($86,737.50) fee in respect of
this First Amendment shall be paid to the Agent, for the
benefit of each Lender in accordance with each Lender's Pro
Rata Share, and
-3-
all reasonable expenses of the Agent, including, without
limitation, attorneys' fees, shall have been reimbursed by the
Borrower; and
(c) All legal matters incident to this First
Amendment shall be reasonably satisfactory to the Agent and
its counsel.
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have caused
this First Amendment to be executed by their respective officers duly authorized
as of the date first above written.
[This space intentionally left blank]
-4-
LILLY INDUSTRIES, INC. NBD BANK, N.A.,
individually and as Agent
By: /s/ Douglas W. Huemme By: /s/ Dennis L. Bassett
Douglas W. Huemme, Chairman Dennis L. Bassett,
President and Chief Executive Officer First Vice President
COMERICA BANK HARRIS TRUST AND SAVINGS BANK
individually and as Co-Agent individually and as Co-Agent
By: /s/ Phillip A. Coosaia By: /s/ Peter Krawchuk
Phillip A. Coosaia Peter Krawchuk
Vice President Vice President
MERCANTILE BANK OF ST. LOUIS BANK ONE, INDIANA, N.A.
individually and as Co-Agent (formerly known as Bank One,
Indianapolis, N.A.)
individually and as Co-Agent
By: /s/ Joseph L. Sooter, Jr. By: /s/ Brian D. Smith
Vice President Vice President
CREDIT LYONNAIS CANADIAN IMPERIAL BANK
CHICAGO BRANCH OF COMMERCE
By: /s/ By: /s/
Vice President Director
FIRST UNION NATIONAL BANK THE LONG-TERM CREDIT BANK OF
OF NORTH CAROLINA JAPAN, LTD., CHICAGO BRANCH
By: /s/ Mark M. Harden By: /s/ Brady S. Sadek
Mark M. Harden Brady S. Sadek
Vice President Vice President & Deputy
General Manager
DRESDNER BANK AG, Chicago NATIONAL CITY BANK, INDIANA
and Grand Cayman Branches
By: By: /s/ Frank B. Meltzer
Frank B. Meltzer
Vice President and
Senior Lending Officer
-5-
DG BANK KEYBANK, NATIONAL ASSOCIATION
(formerly known as Society National Bank)
By: /s/ Norah McCam By: /s/ Frank J. Jancar
Senior Vice President Vice President
CRESENT/MACH I PARTNERS, L.P. INTEGON LIFE INSURANCE CORPORATION
By: TCW ASSET MANAGEMENT By: TCW ASSET MANAGEMENT
COMPANY, COMPANY, its Attorney-in-Fact
its Investment Manager
By: /s/ Justin Driscoll By: /s/ Justin Driscoll
Justin Driscoll Justin Driscoll
Vice President Vice President
SENIOR DEBT PORTFOLIO BANK OF SCOTLAND
By: Boston Management and
Research, Investment Advisor
By: /s/ Scott H. Page By: /s/Annie Chin Tat
Scott H. Page Annie Chin Tat
Vice President Assistant Vice President
KEYPORT LIFE INSURANCE MEDICAL LIABILITY MUTUAL INSURANCE CO.
COMPANY By: Chancellor LGT Senior Secured Management, Inc.
By: Chancellor LGT Senior Secured as Investment Manager
Management, Inc.
as Portfolio Advisor
By: /s/ Reginald J. Woodard By: /s/ Reginald J. Woodard
Reginald J. Woodard Reginald J. Woodard
Assistant Vice President Assistant Vice President
UNITED OF OMAHA LIFE
INSURANCE COMPANY
By: Chancellor LGT Senior Secured
Management, Inc.
as Portfolio Advisor
By: /s/ Reginald J. Woodard
Reginald J. Woodard
Assistant Vice President