SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT made as of the 31st day of August, 1999, by and
among LILLY INDUSTRIES, INC., an Indiana corporation (the "Borrower"), the
LENDERS party hereto, and BANK ONE, INDIANA, N.A., as successor by merger to 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, as amended April 4, 1998 (as amended, the
"Agreement"); and
WHEREAS, the Borrower has requested modifications to the Agreement (a)
to allow the Borrower to obtain mortgage financing on its new headquarters in
Indianapolis, Indiana, and (b) to change the calculation of the Fixed Charge
Coverage Ratio, and the Required Lenders have consented to such modifications
subject to and as provided in this Second 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.
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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 Borrower
and its Subsidiaries determined on a Consolidated basis, the ratio of
(a) the sum of (i) EBITDA minus (ii) Capital Expenditures, plus (iii)
Permitted Corporate Headquarters Expenditures, plus (iv) Rentals, 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 Borrower by
reference to the Financial Statements; in each instance determined for
the trailing four (4) quarter period ending on the date of
determination. Section 1.1 of the Agreement is hereby further amended
by adding the following definition:
"Mortgage Lien" shall have the meaning ascribed in Schedule
5.2.2.
"Permitted Corporate Headquarters Expenditures" means any
expenditures incurred in any quarter related to the purchase and
construction of the Borrower's corporate headquarters (including
furniture and fixtures) located at 000 Xxxx 000xx, Xxxxxxxxxxxx,
Xxxxxxx 00000, but only to the extent the sum of all such expenditures
whenever incurred do not exceed $15,000,000 in the aggregate.
SECTION 5 Covenants
5.2. Negative Covenants.
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5.2.15. Restrictive Agreements. Section 5.2.15 of the
Agreement is hereby amended by adding "and excluding any restrictions
under the Mortgage Lien" after "Documents" in the second line thereof.
PART II. SCHEDULES
The Agreement is hereby amended by substituting Schedule 4.10, 5.2.2
and 5.2.3 to this Second Amendment in lieu of Schedules 4.10, 5.2.2 and 5.2.3,
respectively, to the Agreement.
PART III. 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 Second Amendment; provided, however, in the
event of any irreconcilable inconsistency, this Second Amendment shall
control;
(b) The representations and warranties contained in the
Agreement shall survive this Second Amendment in their original form as
continuing representations and warranties of the Borrower; and
(c) Capitalized terms used in this Second 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 Second Amendment and any
transactions contemplated hereby, no Default or Unmatured Default is or
will be occasioned hereby or thereby.
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 Second Amendment.
PART V. CONDITIONS PRECEDENT
Notwithstanding anything contained in this Second Amendment to the
contrary, the Lenders shall have no obligation under this Second 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 counterparts of this Second
Amendment duly executed by the Agent, Borrower and the Required
Lenders;
(c) A fee shall be paid by Borrower to the Agent for the
benefit of each Lender that has executed and delivered a counterpart of
this Second Amendment by September 8, 1999 in an amount equal to $3,000
for each such Lender;
(d) All legal matters incident to this Second Amendment shall
be reasonably satisfactory to the Agent and its counsel.
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have caused
this Second Amendment to be executed by their respective officers duly
authorized as of the date first above written.
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SIGNATURE PAGE OF
LILLY INDUSTRIES, INC.
TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
LILLY INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, Vice President,
Chief Financial Officer and Secretary
Address:
000 Xxxx 000xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
Facsimile: 000-000-0000
SIGNATURE PAGE OF
BANK ONE, INDIANA, N.A. TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
BANK ONE, INDIANA, N.A.(successor by
merger to NBD BANK, N.A.),
individually and as Agent
By: Xxxxxx X. Xxxxxxx
Its: Senior Vice President
SIGNATURE PAGE OF
FIRST UNION NATIONAL BANK
TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
FIRST UNION NATIONAL BANK
By: Xxxxx X. Hauglia
Its: Vice President
SIGNATURE PAGE OF
XXXXXX TRUST AND SAVINGS BANK
TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
XXXXXX TRUST AND SAVINGS BANK
By: Xxxx X. Rascne
Its: Vice President
SIGNATURE PAGE OF
KEYBANK NATIONAL ASSOCIATION
TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION
By: Xxxxx X. Xxxxxx
Its: Vice President
SIGNATURE PAGE OF
NATIONAL CITY BANK OF INDIANA
TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
NATIONAL CITY BANK OF INDIANA
By:
Its: Vice President
SIGNATURE PAGE OF
BANK OF AMERICA N.A.
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BANK OF AMERICA N.A. (formerly
known as Bank of America N.T. & S.A.)
By:
Its: Managing Director
SECOND AMENDMENT TO CREDIT AGREEMENT
among
LILLY INDUSTRIES, INC.
an Indiana corporation
the Lenders Signatory Hereto
and
BANK ONE, INDIANA, N.A. (successor by merger to NBD Bank, N.A.), as Agent
Dated as of August 31, 1999
TABLE OF CONTENTS
PART I. AMENDATORY PROVISIONS ........................................... 1
SECTION 1 Definitions ................................. 1
1.1 Defined Terms............... 1
SECTION 5 Covenants.................................... 2
5.2 Negative Covenants............. 2
5.2.15 Restrictive Agreements......... 2
PART II. SCHEDULES......................................................... 2
PART III. CONTINUING EFFECT................................................. 2
PART IV. INDEPENDENT CREDIT DECISION....................................... 3
PART V. CONDITIONS PRECEDENT.............................................. 3
SCHEDULE 4.10 and 5.2.3
Indebtedness
The Borrower incorporates Schedule 5.2.2 by reference into Schedules
4.10 and 5.2.3.
A 10-year economic development note relating to the State of Kentucky.
The principal amount of the note is $186,000 and the lender is National City
Bank.
Indebtedness in the aggregate principal amount not exceeding
$15,000,000 owed to a Lender party to the Agreement secured by the Mortgage
Lien, including any renewal, extension or refinancing thereof.
SCHEDULE 5.2.2
Permitted Liens
The mortgage lien in favor of a Lender party to the Agreement
encumbering Borrower's real estate located at 0000 Xxxx 000xx, Xxxxxxxxxxxx,
Xxxxxxx 00000, and all buildings and improvements now or hereafter located
thereon and all other tangible personal property owned by Borrower and now or
hereafter used or intended for use in constructing, furnishing, equipping and
operating any improvements located on such real estate (the "Mortgage Lien").
