FIRST AMENDMENT
TO
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT [1995]
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
[1995] ("Agreement") is made and entered into as of the 31st day of October,
1995, by and between Lilly Industries, Inc., an Indiana corporation and Society
National Bank, Indiana, a national banking association (the "Bank").
Recitals
1. The Borrower and the Bank are parties to an Amended and Restated
Revolving Credit Agreement [1995], dated as of January 27, 1995 (the "Credit
Agreement").
2. The Borrower has requested the Bank to amend the terms of the Credit
Agreement to increase its Commitment (as such term is defined in the Credit
Agreement) from $15,000,000 to $20,000,000 and to extend the Commitment Period
(as such term is defined in the Credit Agreement) through June 30, 2000 to be
considered for extension annually. The Bank is entering into this Agreement to
so amend the terms of the Credit Agreement and to make the other modifications
to Credit Agreement specified below.
Agreement
NOW THEREFORE, in consideration of the premises, the mutual covenants
and agreements herein, and each act performed and to be performed hereunder, the
Bank and the Borrower agree as follows:
1. Definitions. All terms used in the Recitals and in this Agreement that
are defined in the Credit Agreement and are not otherwise defined herein are
used in this Agreement with the meanings ascribed to them in the Credit
Agreement.
2. Amendment of Credit Agreement. (a) Effective as of the date hereof, the
definition of the terms "Cash Flow Coverage Ratio," "Commitment," "Commitment
Period," "Loans," "Note" and "Termination Date" in Section 1.1 of the Credit
Agreement are amended to read as follows:
"Cash Flow Coverage Ratio" means, as of the date of determination, (a)
the sum of (i) net income after taxes, plus (ii) income tax expense,
plus (iii) interest expense, plus (iv) depreciation, amortization and
other non-cash expenses; divided by (b) the sum of (i) income tax
expense, plus (ii) interest expense, plus (iii) current maturities of
long term debt, plus (iv) cash dividends, for the four (4) fiscal
quarters immediately preceding such date all as determined by reference
to the financial statements furnished to the Bank from time to time
pursuant to Section 5.3.
"Commitment" means the obligation of the Bank to make Loans during the
Commitment Period up to a maximum aggregate principal amount
outstanding at any time of $20,000,000.
"Commitment Period" means the period from the date hereof through June
30, 2000, unless extended or renewed by a prior written agreement
executed by the Borrower and the Bank (it being understood that, if so
agreed by the Borrower and the Bank, the Commitment Period referenced
above shall be considered for extension annually).
"Loans" means the revolving loans made by the Bank to the Borrower from
time to time pursuant to Section 2.1 hereof in the maximum aggregate
principal amount of $20,000,000 in accordance with the Commitment,
including any extensions or renewals thereof.
"Note" means the Revolving Credit Note in the form attached hereto as
Exhibit A in the maximum aggregate principal amount of $20,000,000 (or
so much thereof as may be advanced or outstanding from time to time)
executed by the Borrower in favor of the Bank.
"Termination Date" means June 30, 2000.
(b) Effective as of the date hereof, the following
defined terms are added to Section 1.1 of the Credit Agreement:
"Funded Debt Ratio" means, as of the date of determination,
Total Funded Debt divided by (a) the sum of (i) net income after taxes,
plus (ii) income tax expense, plus (iii) interest expense plus (iv)
depreciation, amortization and non-cash expenses (b) minus additional
investments in treasury stock.
"Interest Expense Coverage Ratio" means, as of the date of
determination, net income after taxes plus (i) income tax expense plus
(ii) interest expense divided by interest expense.
"Total Funded Debt" means (i) All Indebtedness for borrowed
money or which has been incurred in connection with the acquisition of
assets, (ii) all capitalized lease obligations in respect of
capitalized leases with a term of one year or more remaining after the
date of determination thereof, and (iii) all guaranties of Indebtedness
of others maturing one year or more after the date of determination
thereof.
(c) Effective as of the date hereof, the last sentence
of Section 2.3 shall be amended and restated to read as follows:
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Unless the Loans are sooner paid by the Borrower or extended by the
Bank in its sole discretion, the entire principal balance of the Loans,
together with all accrued and unpaid interest thereon, and all fees and
charges payable in connection therewith, shall be due and payable on
June 30, 2000.
(d) Effective as of the date hereof, Section 2.11 of the
Credit Agreement shall be amended and restated to read in its
entirety as follows:
Section 2.11. Commitment Fee. Borrower shall pay to the Bank a
commitment fee equal to three-sixteenths (3/16) of one percent (1%) per
annum on the maximum amount of the Commitment, which fee shall be due
and payable quarterly in advance of each calendar quarter within
fifteen (15) days of receipt by the Borrower of an invoice therefor.
(e) Effective as of the date hereof, Section 5.5 of the
Credit Agreement shall be amended and restated to read in its
entirety as follows:
"5.5 Leverage Ratio. Maintain a ratio of Total
Funded Debt to Total Funded Debt plus Consolidated Net
Worth not in excess of 0.50:1.00 as of the end of each
fiscal quarter."
(f) Effective as of the date hereof, Section 5.6 of the
Credit Agreement shall be amended and restated to read in its
entirety as follows:
"5.6 Interest Expense Coverage Ratio. Maintain an
Interest Expense Coverage Ratio of not less than 5.00 to
1.00 as at the end of each fiscal quarter."
(g) Effective as of the date hereof, Section 5.7 of the
Credit Agreement shall be amended and restated to read in its
entirety as follows:
"5.7 Cash Flow Coverage Ratio. Maintain a Cash
Flow Coverage Ratio of not less than 1.15 to 1.00 as at
the end of each fiscal quarter."
(h) Effective as of the date hereof, a new Section 5.8A
shall be added to the Credit Agreement as follows:
"5.8A Funded Debt Ratio. Maintain a Funded Debt
Ratio not in excess of 2.75 to 1.00 as of the end of each
fiscal quarter.
2. Credit Agreement. Except as otherwise expressly provided
herein, all of the terms and provisions of the Credit Agreement, as
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modified by this Agreement, remain in full force and effect, and are fully
binding on the parties thereto and their respective successors and assigns. All
references to the Credit Agreement in the other Loan Documents shall mean the
Credit Agreement as modified by this Agreement and as it may be further amended,
modified, extended, renewed, supplemented and/or restated from time to time.
3. Binding on Successors and Assigns. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their respective successors, assigns and legal representatives. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party.
4. Representations and Warranties. Borrower hereby represents and warrants
to the Bank that:
(a) The execution, delivery and performance of this Agreement
by Borrower is within Borrower's corporate powers, has been duly authorized by
all requisite corporate action and is not in conflict with the terms of any
charter, bylaws or other organization papers of Borrower, or any instrument or
agreement to which Borrower is a party or by which Borrower is bound.
(b) None of the representations and warranties contained in
Section 4 of the Credit Agreement has ceased to be true and correct in any
material respect and no Default or Event of Default has occurred and is
continuing.
5. Condition Precedent. The obligation of the Bank to execute this
Agreement is subject to the condition precedent that the following shall have
been delivered to the Bank:
(a) Copies of resolutions passed by the Board of Directors of
Borrower, certified by the Secretary or Assistant Secretary of Borrower, as
being in full force and effect on the date hereof.
(b) This Agreement duly executed by Borrower.
(c) An Amended or Restated Promissory Note duly executed by
Borrower and payable to Bank in the principal amount of up to $20,000,000 with a
maturity date of on or before June 30, 2000 (subject to acceleration, extension
or prepayment) (the "Amended Note") and substantially similar in form to the
Promissory Note of the Borrower dated January 27, 1995, payable to Bank in the
principal amount of $15,000,000 (the "Existing Note") in exchange for
cancellation and delivery to Borrower of the Existing Note. The parties agree
that the Amended Note shall be substituted for the Existing Note as Exhibit A to
the Credit Agreement.
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6. Survival. All covenants, agreements, undertakings, representations, and
warranties made in this Agreement shall survive the execution and delivery of
this Agreement, and shall not be affected by any investigation made by any
party.
7. Entire Agreement. This Agreement constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings, commitments,
inducements or conditions, whether express or implied, oral or written.
8. Counterparts. This Agreement may be executed in counterparts, each
counterpart to be executed by one or more or all of the parties but collectively
to constitute but one agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the date and year first above written.
"BORROWER"
LILLY INDUSTRIES, INC.
Attest: By: /s/ Xxxxx X. Xxxxxx
--------------------
Xxxxx X. Xxxxxx,
Vice President, Chief
/s/ Xxxxxxx X. Xxxxx Financial Officer and
Xxxxxxx X. Xxxxx, Secretary
Director of Corporate Accounting
and Assistant Secretary
Address:
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Vice President, Chief
Financial Officer and
Secretary
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
"BANK"
SOCIETY NATIONAL BANK, INDIANA
By: /s/ Xxxxx X. Xxxxxx
----------------------
Title: Vice President
Address:
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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