Exhibit 10.1
AMENDMENT NO. 1
Dated as of October 2,
2009
to
5-YEAR REVOLVING CREDIT
AGREEMENT
Dated as of October 19,
2007
THIS AMENDMENT NO. 1 (“
Amendment ”) is made as of October 2, 2009 by and
among Zep Inc., a Delaware corporation (the “ Company
”), Acuity Specialty Products, Inc., a Georgia corporation
(“ ASP ”, and together with the Company,
collectively “ Borrowers ”), the financial
institutions listed on the signature pages hereof and JPMorgan
Chase Bank, National Association, as Administrative Agent (the
“ Administrative Agent ”), under that certain
5-Year Revolving Credit Agreement dated as of October 19, 2007
by and among the Borrowers, the Lenders and the Administrative
Agent (the “ Credit Agreement ”). Capitalized
terms used herein and not otherwise defined herein shall have the
respective meanings given to them in the Credit
Agreement.
WHEREAS, the Borrowers, the Lenders
party hereto and the Administrative Agent have agreed to amend the
Credit Agreement on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of
the premises set forth above, the terms and conditions contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers, the
Lenders party hereto and the Administrative Agent have agreed to
the following amendments to the Credit Agreement.
1. Amendments to Credit
Agreement . Subject to the satisfaction of the conditions
precedent set forth in Section 2 below, the Credit
Agreement is hereby amended as follows:
(a) Section 1.01 of the
Credit Agreement is hereby amended by amending and restating the
following definitions in their entirety to read as
follows:
“ Alternate Base Rate
” means, for any day, a fluctuating rate per annum equal to
the highest of (i) the Prime Rate for such day, (ii) the
sum of (a) the Federal Funds Effective Rate for such day and
(b) one-half of one percent (0.5%) per annum and
(iii) the Eurocurrency Rate for a one month Interest Period in
Dollars on such day (or if such day is not a Business Day, the
immediately preceding Business Day) plus 1%, provided that,
for the avoidance of doubt, such Eurocurrency Rate for any day
shall be based on the rate appearing on Reuters BBA Libor Rate Page
3750 (or on any successor or substitute page of such service or any
successor to or substitute for such service) at approximately 11:00
a.m. London time on such day. Any change in the Alternate Base Rate
due to a change in the Prime Rate, the Federal Funds Effective Rate
or the Eurocurrency Rate shall be effective from and including the
effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the Eurocurrency Rate, respectively.
“ Receivables and Related
Security ” means the Receivables and related security
(including, without limitation, any books and records, returned
goods, contracts and supporting obligations relating to the
Receivables) and collections with respect thereto which are sold or
transferred by an Originator or SPV.
“ Receivables Facility
Attributed Indebtedness ” means the principal amount of
any obligations outstanding under a Receivables Purchase Financing
on any date of determination; provided, however, that Receivables
Facility Attributed Indebtedness shall not include any intercompany
indebtedness incurred by an SPV in connection with its acquisition
of Receivables and Related Security in any Permitted Receivables
Transfer.
“ Receivables Purchase
Financing ” means any financing made available to the
Company or any of its consolidated Subsidiaries, whereby the
Receivables and Related Security (or interests therein) of the
Originators are transferred to one or more SPVs, and thereafter to
certain investors (or used as collateral to enable one or more SPVs
to obtain loans), pursuant to the terms and conditions of the
Receivables Purchase Documents.
(b) Section 1.01 of the
Credit Agreement is hereby amended to add the following new
definitions thereto in the appropriate alphabetical
order:
“ Defaulting Lender
” means any Lender, as determined by the Administrative
Agent, that has (a) failed to fund any portion of its Loans or
participations in Facility LCs within three (3) Business Days
of the date required to be funded by it hereunder,
(b) notified the Company, the Administrative Agent, any
Issuing Bank or any Lender in writing that it does not intend to
comply with any of its funding obligations under this Agreement or
has made a public statement to the effect that it does not intend
to comply with its funding obligations under this Agreement or
under other agreements in which it commits to extend credit,
(c) failed, within three (3) Business Days after request
by the Administrative Agent, to confirm that it will comply with
the terms of this Agreement relating to its obligations to fund
prospective Loans and participations in then outstanding Letters of
Credit, (d) otherwise failed to pay over to the Administrative
Agent or any other Lender any other amount required to be paid by
it hereunder within three (3) Business Days of the date when
due, unless the subject of a good faith dispute, or
(e) (i) become or is insolvent or has a parent company
that has become or is insolvent or (ii) become the subject of
a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken
any action in furtherance of, or indicating its consent to,
approval of or acquiescence in any such proceeding or appointment
or has a parent company that has become the subject of a bankruptcy
or insolvency proceeding, or has had a receiver, conservator,
trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment.
“ Investment ”
means, with respect to any Person, any loan, advance, extension of
credit (other than accounts receivable arising in the ordinary
course of business on terms customary in the trade) or contribution
of capital by such Person; stocks, bonds, mutual funds, partnership
interests, notes, debentures or other securities owned by such
Person; any certificate of deposit owned by such Person; and
structured notes, derivative financial instruments and other
similar instruments or contracts owned by such Person.
(c) The following new
Section 2.27 is hereby added to the Credit
Agreement:
2
SECTION 2.27 Defaulting
Lenders . Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the
following provisions shall apply for so long as such Lender is a
Defaulting Lender:
(a) if any Swing Line Loans are
outstanding or any LC Obligations exist at the time a Lender is a
Defaulting Lender, the Company shall within one (1) Business
Day following notice by the Administrative Agent (i) prepay
the Defaulting Lender’s Pro Rata Share of such outstanding
Swing Line Loans or, if agreed by the Swing Line Lender, cash
collateralize the Pr
