Exhibit 10(n)
US$150,000,000
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
dated as of
November 15, 2001
among
THE VALSPAR CORPORATION
The Borrowing Subsidiaries
Party Hereto
The Lenders Party Hereto
and
JPMORGAN CHASE BANK,
as Administrative Agent
BANK OF AMERICA, N.A.,
BANK ONE, N.A.,
WACHOVIA BANK, N.A.,
as Co-Syndication Agents and Co-Documentation Agents
---------------------------
X.X. XXXXXX SECURITIES INC.
as Lead Arranger and Bookrunner
AMENDMENT AND RESTATEMENT AGREEMENT dated as
of November 15, 2001 (this "Amendment and
Restatement"), in respect of the 364-DAY CREDIT
AGREEMENT dated as of November 17, 2000 (the "Credit
Agreement"), among THE VALSPAR CORPORATION, a
Delaware corporation (the "Company"); the BORROWING
SUBSIDIARIES from time to time party hereto (the
Company and the Borrowing Subsidiaries being
collectively called the "Borrowers"); the LENDERS
from time to time party hereto; JPMORGAN CHASE BANK,
as Administrative Agent; and BANK OF AMERICA, N.A.,
BANK ONE, N.A. and WACHOVIA BANK, N.A., as
Co-Syndication Agents and Co-Documentation Agents.
The Company and each other Borrower has requested that the
Credit Agreement be amended and restated as set forth in Section 1 below and the
parties hereto are willing so to amend the Credit Agreement. Each capitalized
term used but not defined herein has the meaning assigned thereto in the Credit
Agreement.
In consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto hereby agree, on
the terms and subject to the conditions set forth herein, as follows:
SECTION 1. Amendment and Restatement. Upon the effectiveness
of this Amendment and Restatement as provided in Section 3 below, the Credit
Agreement shall be amended and restated in the form resulting from the following
revisions:
(a) The preamble to the Credit Agreement is hereby amended by
deleting the preamble in its entirety and substituting therefore the
following paragraph:
"The Company has requested the Lenders to amend and
restate the Existing Credit Agreement (such term and
each other capitalized term used and not otherwise
defined herein having the meaning assigned to it in
Article I) under which the Borrowers may obtain
revolving loans in an aggregate principal amount at
any time outstanding not greater than $150,000,000.
All Borrowings under this Agreement will be
denominated in U.S. Dollars."
(b) Section 1.01 of the Credit Agreement is hereby amended as
follows:
(i) Consolidated EBITDA. The definition of the term
"Consolidated EBITDA" is hereby amended by deleting clause
(vi) in its entirety and substituting therefor "(vi) charges,
to the extent such charges do not exceed $40,000,000 in the
aggregate, associated with addbacks related to the
restructuring program and other initiatives to eliminate
redundant facilities from the Lilly Acquisition and to
accelerate performance improvement".
(ii) Existing Credit Agreement. The definition of the
term "Existing Credit Agreement" is hereby amended by deleting
in its entirety and substituting therefor the following
definition:
"Existing Credit Agreement" means the 364-Day Credit Agreement
dated as of November 17, 2000, among the Company, the
borrowing subsidiaries party thereto, the lenders party
thereto and Chase, as administrative agent."
(iii) Five-Year Credit Agreement. The definition of
the term "Five-Year Credit Agreement" is hereby amended by
deleting the words "as of the date hereof" and substituting
therefor "dated as of November 15, 2000, as amended,
supplemented or otherwise modified from time to time".
(iv) Information Memorandum. The definition of the
term "Information Memorandum" is hereby amended by deleting
the date "August 2000" and substituting therefor "October
2001".
(v) Maturity Date. The definition of the term
"Maturity Date" is hereby amended by deleting the words
"second anniversary" and substituting therefor "first
anniversary".
(vi) Termination Date. The definition of the term
"Termination Date" is hereby amended by deleting the date
"November 16, 2001" and substituting therefor "November 14,
2002".
(vii) US Tranche Commitment. The definition of the
term "US Tranche Commitment" is hereby amended by deleting the
amount "US$500,000,000" and substituting therefor
"US$150,000,000".
(viii) Transactions. The definition of the term
"Transactions" is hereby amended by deleting the words "and
the completion of the Lilly Acquisition" and inserting the
word "and" before the words "the use of the proceeds thereof".
(c) Fees. Paragraph (d) of Section 2.10 of the Credit
Agreement is hereby amended by deleting the paragraph in its entirety
and substituting therefor:
"(d) [Intentionally deleted];".
(d) Financial Information; No Material Adverse Change. (i)
Paragraph (a) of Section 3.04 of the Credit Agreement is hereby amended
by deleting the date "October 29, 1999" and substituting therefor
"October 27, 2000", and deleting the dates "January 28, 2000, April 28,
2000 and July 28, 2000" and substituting therefor "January 26, 2001,
April 27, 2001 and July 27, 2001".
(ii) Paragraph (b) of Section 3.04 of the Credit
Agreement is hereby amended by deleting the date "October 29,
1999" and substituting therefor "October 27, 2000".
(e) Conditions. Section 4.01 of the Credit Agreement is hereby
amended by deleting the entire Section and substituting therefor
Section 3 of this Amendment and Restatement.
(f) Ratio of Consolidated Debt to Consolidated EBITDA. Section
5.03 of the Credit Agreement is hereby amended by deleting the table
appearing therein in its entirety and substituting therefor the
following table:
Period Ratio
------ -----
Effective Date through December 4.75 to 1.00
20, 2001
December 21, 2001 through 4.00 to 1.00
December 20, 2002
December 21, 2002 through 3.50 to 1.00
December 20, 2003
December 21, 2003 through 3.25 to 1.00
December 20, 2004
December 21, 2004 and thereafter 3.00 to 1.00
(g) Effective Date. From and after the Effective Date (as
defined below), all references in the Credit Agreement to "the date
hereof", "the date of this Agreement" or other words or phrases of
similar import, shall be deemed references to the date of this
Amendment and Restatement.
(h) Schedules. Schedules 1.01, 2.01, 3.08 and 3.14 to the
Credit Agreement are hereby deleted and new Schedules 1.01, 2.01, 3.08
and 3.14 hereto are inserted in their place.
SECTION 2. Representations and Warranties. The Company and
each other Borrower represents and warrants as of the Effective Date to the
Lenders that:
(a) Before and after giving effect to this Amendment and
Restatement, the representations and warranties set forth in the Credit
Agreement are true and correct in all material respects with the same
effect as if made on the Effective Date, except to the extent such
representations and warranties expressly relate to an earlier date.
(b) Immediately before and after giving effect to this
Amendment and Restatement, no Default has occurred and is continuing.
SECTION 3. Conditions to Effectiveness. This Amendment and
Restatement and the obligations of the Lenders to make Loans under the Credit
Agreement as amended and restated hereby shall become effective on the date (the
"Effective Date") on which each of the following conditions is satisfied (or
waived in accordance with Section 9.02 of the Credit Agreement):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Amendment and Restatement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Amendment and Restatement) that such party has signed a counterpart of
this Amendment and Restatement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of Xxxxxxxxx & Xxxxxx, PLLP, special
counsel to the Company, dated the Effective Date and substantially in
the form of Exhibit C to the Credit Agreement, and covering such other
matters relating to the
Company, this Amendment and Restatement, the Credit Agreement or the
Transactions as the Required Lenders shall reasonably request. The
Company hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Borrowers, the authorization of the Transactions and
any other legal matters relating to the Borrowers, this Amendment and
Restatement, the Credit Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Company, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02 of the Credit Agreement.
(e) All loans outstanding under the Existing Credit Agreement
shall have been repaid, together with all interest, fees and other
amounts accrued thereunder.
(f) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including the agreed upon fees and charges,
plus disbursements, of counsel) required to be reimbursed or paid by
the Company or any Subsidiary in connection with this Amendment and
Restatement or any Loan Document.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 4. Agreement. Except as specifically stated herein,
the provisions of the Credit Agreement are and shall remain in full force and
effect. As used therein, the terms "Credit Agreement", "herein", "hereunder",
"hereinafter", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, refer to the Credit Agreement as amended hereby.
SECTION 5. Consents. Each of the Company and the Borrowing
Subsidiaries hereby acknowledges receipt of and consents to the terms of this
Amendment and Restatement and confirms that their respective Guarantees pursuant
to Article VIII of the Credit Agreement and the Guarantee Agreement remain in
full force and effect notwithstanding the execution and delivery of this
Amendment and Restatement.
SECTION 6. APPLICABLE LAW. THIS AMENDMENT AND RESTATEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 7. Counterparts. This Amendment and Restatement may be
executed in two or more counterparts, each of which shall constitute an original
but all of which when taken together shall constitute but one contract. Delivery
of an executed counterpart of a signature page of this Amendment and Restatement
by telecopy shall be effective as delivery of a manually executed counterpart of
this Amendment and Restatement.
SECTION 8. Expenses. The Borrowers agree to reimburse the
Administrative Agent for all out-of-pocket expenses incurred by it in connection
with this Amendment and Restatement, including the agreed upon fees and charges
plus disbursements of Cravath, Swaine & Xxxxx, counsel for the Administrative
Agent.
SECTION 9. Headings. The headings of this Amendment and
Restatement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Restatement to be duly executed by their respective authorized
officers as of the day and year first above written.
THE VALSPAR CORPORATION
by
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Name:
Title:
ENGINEERED POLYMER SOLUTIONS,
INC.,
by
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Name:
Title:
Consent. Each of the undersigned Subsidiary Guarantors hereby acknowledges
receipt of, and consents to the terms of, the foregoing Amendment and confirms
that their respective Guaranties pursuant to the Guarantee Agreement remain in
full force and effect notwithstanding the execution and delivery of this
Amendment by the parties thereto.
VALSPAR FINANCE CORPORATION
by
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Name:
Title:
VALSPAR COATINGS FINANCE
CORPORATION,
by
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Name:
Title:
VALSPAR CREDIT CORPORATION
by
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Name:
Title:
VALSPAR FINANCE CORPORATION
by
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Name:
Title:
JPMORGAN CHASE BANK, individually and
as Administrative Agent and Swingline
Lender
by
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Name:
Title:
BANK OF AMERICA, N.A., individually and
as Co-Documentation Agent and Co-
Syndication Agent,
by
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Name:
Title:
BANK ONE, N.A., (Main Office Chicago
individually and as Co-Documentation
Agent and Co-Syndication Agent,
by
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Name:
Title:
WACHOVIA SECURITIES, INC., individually
and as Co-Documentation Agent and Co-
Syndication Agent,
by
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Name:
Title:
