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FIRST AMENDMENT TO CREDIT AGREEMENT
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among
LILLY INDUSTRIES, INC.
an Indiana corporation
the Lenders Signatory Hereto
and
NBD Bank, N.A., as Agent
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Dated as of April 14, 1998
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TABLE OF CONTENTS
PART I. AMENDATORY PROVISIONS............................................1
SECTION 1 Definitions............................. 1
1.1 Defined Terms................... 1
SECTION 3 Change in Circumstances................. 4
3.4. Funding Indemnification........... 4
PART II. CONTINUING EFFECT................................................ 4
PART III. INDEPENDENT CREDIT DECISION...................................... 5
PART IV. CONDITIONS PRECEDENT.............................................5 g
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FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT made as of the 14th day of April, 1998, 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");
W I T N E S S E T H:
WHEREAS, as of October 24, 1997, the parties hereto entered into a
certain Credit Agreement (the "Agreement"); and
WHEREAS, the Borrower has requested changes in the method in which the
commitment fee and the incremental margin are calculated and in the calculation
of break funding charges 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.
Section 1.1 of the Agreement is hereby amended by substituting the
following definitions in lieu of the like existing definitions:
"Applicable Commitment Fee" means, on any date, the fee
payable to the Agent for the pro rata benefit of the Lenders, which fee
shall be based upon the Ratings in effect at the close of business on
such date in accordance with the table set forth below:
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Ratings Applicable Commitment Fee
Level 1 BB or lower by S&P; 0.250%
Ba2 or lower by Moody's
Level 2 BB+ by S&P; 0.175%
Ba1 by Moody's
Level 3 BBB- by S&P; 0.150%
Baa3 by Moody's
Level 4 BBB by S&P; 0.125%
Baa2 by Moody's
Level 5 BBB+ or higher by S&P; 0.100%
Baa1 or higher by Moody's
For purposes of the foregoing, (a) if both S&P and Moody's shall not
have in effect a Rating, then the Applicable Commitment Fee shall be
determined based on the last applicable Level (subject to the last
sentence of this definition), (b) if the Ratings shall fall within
different Levels, the Applicable Commitment Fee shall be based upon the
higher of the two Ratings, provided that if the split is more than one
full Level, the average (or the higher of two intermediate Ratings)
shall be used, and (c) if any Rating shall be changed (other than as a
result of a change in the rating system of the applicable Rating
Agency), such change shall be effective as of the date on which it is
first announced by the Rating Agency making such change. If the rating
system of any Rating Agency shall change, or if any Rating Agency shall
cease to be in the business of rating corporate debt obligations or
shall not have in effect a Rating, the parties hereto shall negotiate
in good faith to amend this definition to reflect such changed rating
system or the absence of such Rating, and pending the effectiveness of
any such amendment the Applicable Commitment Fee shall be determined
(y) by reference to the Rating from the other Rating Agency, or (z)
based on the last applicable Level for a period of ninety (90) days and
based on Level 1 as of the expiration of such ninety (90) day period in
the event both Rating Agencies have so changed their rating systems, or
have both ceased to be in the business of rating corporate debt
obligations, or both shall not have in effect a Rating.
"Applicable Margin" means, on any date, the incremental margin
to be paid by Borrower on Loans hereunder, which margin shall be based
upon the Ratings in effect at the close of business on such date in
accordance with the table set forth below:
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Ratings Applicable Margin
ABR Loans Eurodollar
Loans
Level 1 BB or lower by S&P; 0% 0.75%
Ba2 or lower by Moody's
Level 2 BB+ by S&P; 0% 0.60%
Ba1 by Moody's
Level 3 BBB- by S&P; 0% 0.45%
Baa3 by Moody's
Level 4 BBB by S&P; 0% 0.35%
Baa2 by Moody's
Level 5 BBB+ or higher by S&P; 0% 0.30%
Baa1 or higher by Moody's
For purposes of the foregoing, (a) if both S&P and Moody's shall not
have in effect a Rating, then the Applicable Commitment Fee shall be
determined based on the last applicable Level (subject to the last
sentence of this definition), (b) if the Ratings shall fall within
different Levels, the Applicable Commitment Fee shall be based upon the
higher of the two Ratings, provided that if the split is more than one
full Level, the average (or the higher of two intermediate Ratings)
shall be used, and (c) if any Rating shall be changed (other than as a
result of a change in the rating system of the applicable Rating
Agency), such change shall be effective as of the date on which it is
first announced by the Rating Agency making such change. If the rating
system of any Rating Agency shall change, or if any Rating Agency shall
cease to be in the business of rating corporate debt obligations or
shall not have in effect a Rating, the parties hereto shall negotiate
in good faith to amend this definition to reflect such changed rating
system or the absence of such Rating, and pending the effectiveness of
any such amendment the Applicable Commitment Fee shall be determined
(y) by reference to the Rating from the other Rating Agency, or (z)
based on the last applicable Level for a period of ninety (90) days and
based on Level 1 as of the expiration of such ninety (90) day period in
the event both Rating Agencies have so changed their rating systems, or
have both ceased to be in the business of rating corporate debt
obligations, or both shall not have in effect a Rating.
Section 1.1 of the Agreement is hereby further amended by adding the
following definitions:
"Moody's" means Moody's Investors Service, Inc.
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"S&P" means Standard & Poor's Ratings Services, a division of
McGraw-Hill Companies, Inc.
"Rating Agencies" means Moody's and S&P.
"Ratings" means the ratings from time to time established by
the Rating Agencies for senior, unsecured, non-credit-enhanced
long-term debt of the Borrower.
SECTION 3
Change in Circumstances
3.4. Funding Indemnification. Section 3.4 of the Agreement is hereby
amended by substituting the following sentence in lieu of the existing third
(3rd) sentence of Section 3.4:
In the event of a prepayment, the calculation of the cost owed to the
Lenders under this Section 3.4 would be calculated using the following
formula:
Cost = PA x (OCF-RR) x D
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360
where PA is the principal amount prepaid, OCF is the original
Eurodollar Rate applicable to such prepayment, RR is the Eurodollar
Base Rate determined by the Agent at the time of prepayment for an
interest period substantially as similar as possible to the time
remaining until expiration of the applicable Eurodollar Interest Period
that is subject to the prepayment, and D is the number of days
remaining in the applicable Eurodollar Interest Period that is subject
to the prepayment.
PART II. CONTINUING EFFECT
Except as expressly modified herein:
(a) All terms, conditions, representations, warranties and
covenants contained in the Agreement shall remain the same and shall
continue in full force and effect, interpreted, wherever possible, in a
manner consistent with this First Amendment; provided, however, in the
event of any irreconcilable inconsistency, this First Amendment shall
control;
(b) The representations and warranties contained in the
Agreement shall survive this First Amendment in their original form as
continuing representations and warranties of the Borrower; and
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(c) Capitalized terms used in this First Amendment, and not
specifically herein defined, shall have the meanings ascribed to them
in the Agreement.
In consideration hereof, the Borrower represents, warrants, covenants and agrees
that:
(aa) 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;
(bb) There currently exists no offsets, counterclaims or
defenses to the performance of the Obligations (such offsets,
counterclaims or defenses, if any, being hereby expressly waived);
(cc) There has not occurred any Default or Unmatured Default;
and
(dd) After giving effect to this First Amendment and any
transactions contemplated hereby, no Default or Unmatured Default is or
will be occasioned hereby or thereby.
PART III. 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 IV. 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;
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(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; 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]
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SIGNATURE PAGE OF
LILLY INDUSTRIES, INC.
TO
FIRST AMENDMENT TO
CREDIT AGREEMENT
LILLY INDUSTRIES, INC.
By: /s/ John C. Elbin
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John C. Elbin, Chief Financial Officer
and Secretary
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SIGNATURE PAGE OF
NBD BANK, N.A.,
TO
FIRST AMENDMENT TO
CREDIT AGREEMENT
NBD BANK, N.A.,
individually and as Agent
By: /s/ Dennis L. Bassett
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Its: Senior Vice President
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SIGNATURE PAGE OF
BANK ONE, INDIANA, NA
TO
FIRST AMENDMENT TO
CREDIT AGREEMENT
BANK ONE, INDIANA, NA
By: /s/ Brian D. Smith
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Its: Vice President
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SIGNATURE PAGE OF
FIRST UNION NATIONAL BANK
TO
FIRST AMENDMENT TO
CREDIT AGREEMENT
FIRST UNION NATIONAL BANK
By: /s/
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Its: Senior Vice President
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SIGNATURE PAGE OF
HARRIS TRUST AND SAVINGS BANK
TO
FIRST AMENDMENT TO
CREDIT AGREEMENT
HARRIS TRUST AND SAVINGS BANK
By: /s/ Peter Krawchuk
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Its: Vice President
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SIGNATURE PAGE OF
KEYBANK NATIONAL ASSOCIATION
TO
FIRST AMENDMENT TO
CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION
By: /s/ Frank J. Jancar
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Its: Vice President
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SIGNATURE PAGE OF
NATIONAL CITY BANK OF INDIANA
TO
FIRST AMENDMENT TO
CREDIT AGREEMENT
NATIONAL CITY BANK OF INDIANA
By: /s/ Frank B. Meltzer
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Its: Vice President
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SIGNATURE PAGE OF
BANK OF AMERICA N.T. & S.A.
TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BANK OF AMERICA N.T. & S.A.
By: /s/ Paul B. Higdon
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Its: Managing Director
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