EXHIBIT 4.1.a
CREDIT AGREEMENT
FOURTH AMENDMENT
This Fourth Amendment (this "Amendment") to the Credit Agreement (as
---------
defined below) is entered into as of December 19, 2000 by and among MacDERMID,
INCORPORATED, a Connecticut corporation (the "Company"), the several financial
-------
institutions party hereto (collectively, the "Lenders"; individually, a
-------
"Lender"), and BANK OF AMERICA, N.A., f/k/a/ Bank of America National Trust and
- -------
Savings Association, successor by merger to Bank of America, N.A., f/k/a
NationsBank, N.A., as letter of credit issuing bank, swing line lender and
administrative agent for the Lenders (the "Administrative Agent"). Unless
---------------------
otherwise specified herein, capitalized terms used in this Amendment shall have
the meanings ascribed to them by the Credit Agreement (as defined below).
RECITALS
--------
WHEREAS, the Company, the Lenders from time to time party thereto and the
Administrative Agent are party to the Second Amended and Restated Multicurrency
Credit Agreement, dated as of October 25, 1998, amended and restated as of
December 15, 1998 and further amended and restated as of June 15, 1999 (as
amended by the First Amendment dated as of September 24, 1999, the Second
Amendment dated as of November 12, 1999 and the Third Amendment and Waiver dated
as of June 2, 2000 and as the same may be further amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms
and in effect, the "Credit Agreement"); and
-----------------
WHEREAS, the Company, the Administrative Agent and the Majority Lenders
desire to make certain amendments to the Credit Agreement as specified below
including increasing the Revolving Loan Commitment; and
WHEREAS, each of the Lenders listed on Exhibit A hereto wishes to
---------
increase its Revolving Loan Commitment on the terms and conditions
specified herein;
NOW, THEREFORE, in consideration of the mutual execution hereof and other
Good and valuable consideration, the parties hereto agree as follows:
1. AMENDMENT TO THE AGREEMENT. The Credit Agreement is hereby amended,
- -- -----------------------------
effective as of the
Fourth Amendment Effective Date in accordance with Section 4 hereof, as follows:
---------
1.1 NEW DEFINITIONS. Section 1.1 of the Credit Agreement is hereby amended
- --- ----------------
by adding the following definitions in the proper alphabetical location:
"Accounts Receivable" means presently existing and hereafter arising or
--------------------
acquired accounts receivable, notes, drafts, acceptances, general intangibles,
choses in action and other forms of obligations and receivables relating in any
way to inventory or arising from the sale of inventory or the rendering of
services or howsoever otherwise arising, including the right to payment of any
interest or finance charges with respect thereto and all proceeds of insurance
with respect thereto, together with all of the Company's or its Subsidiaries
rights as an unpaid vendor, all pledged assets, guaranty claims, liens and
security interests held by or granted to the Company or its Subsidiaries to
secure payment of any Accounts Receivable and all books, customer lists,
ledgers, records and files (whether written or stored electronically) relating
to any of the foregoing.
"Adjusted Consolidated Total Debt" means Consolidated Total Debt
-----------------------------------
plus Receivables Facility Attributed Debt.
"Dynacircuits" means Dynacircuits LLC, an Illinois limited liability
------------
company.
"Eurocir" means, collectively, Eurocir, S.A., a company organized under the
-------
laws of Spain and certain of its affiliates and Easy Hole Invest S.A., a
company organized under the laws of Luxembourg and certain of its
affiliates.
"Eurocir Purchase Documents" means that certain Purchase and Sale Agreement
--------------------------
dated as of September 21, 2000 among the Company, MacDermid Espanola, SA,
Antonioa Rodriguez on behalf of INCIFSA, S.A. and other individuals and
Financiere Naturam SA and that certain Shareholders Agreement related thereto
and any other documents delivered in connection therewith.
"Fourth Amendment" means that certain Fourth Amendment to this Agreement
-----------------
dated as of December 19, 2000.
"Fourth Amendment Effective Date" has the meaning assigned to that term
---------------------------------
in the Fourth Amendment.
"Issuer" has the meaning assigned to that term in the definition of
------
Permitted Accounts Receivable Securitization.
-
"Participating Subsidiary" means any Subsidiary that is a participant
-------------------------
in a Permitted Accounts Receivable Securitization.
"Permitted Accounts Receivable Securitization" means any receivables
----------------------------------------------
financing program providing for the sale of Receivables Facility Assets by
Company and the Participating Subsidiaries to the Receivables Subsidiary
in transactions purporting to be sales (and treated as sales for
GAAP purposes), which Receivables Subsidiary shall finance the purchase of
such Receivables Facility Assets by the sale, transfer, conveyance, lien
or pledge of such Receivables Facility Assets to one or more limited
purpose financing companies, special purpose entities and/or other
financial institutions (in such capacity, an "Issuer"), in each case,
-------
on a limited recourse basis as to the Company and the Participating
Subsidiaries; provided that any such transaction shall be on
commercially reasonable terms and consummated pursuant to documentation
in form and substance reasonably satisfactory to the Administrative Agent,
as evidenced by its written approval thereof.
"Pledged Receivables Subsidiary Notes" means the subordinated notes
---------------------------------------
of the Receivables Subsidiary if any, issued to the Company or any
Participating Subsidiary in connection with a Permitted Accounts Receivable
Securitization, which subordinated notes are pledged pursuant to the
Receivables Subsidiary Pledge Agreement.
"Pledged Receivables Subsidiary Stock" means all the issued and
---------------------------------------
outstanding shares of capital stock of the Receivables Subsidiary, which
shares are pledged pursuant to the Receivables Subsidiary Pledge
Agreement.
"Receivables Documents" means all documentation relating to
----------------------
any Permitted Accounts Receivable Securitization.
"Receivables Facility Assets" means all Accounts Receivable
-----------------------------
(whether now existing or arising in the future) of the Company or any
of its Subsidiaries which are transferred to the Receivables Subsidiary
pursuant to a Permitted Accounts Receivable Securitization, and any assets
related thereto, including without limitation (i) all collateral given by the
respective account debtor or on its behalf (but not by Company or any of
its Subsidiaries) securing such Accounts Receivable, (ii) all contracts and
all guarantees (but not by Company or any of its Subsidiaries) or other
obligations directly related to such Accounts Receivable, (iii) other related
assets including those set forth in the Receivables Documents, and (iv)
proceeds of all of the foregoing.
"Receivables Facility Attributed Debt" at any time means the
---------------------------------------
aggregate net outstanding amount theretofore paid by an Issuer to the
Receivables Subsidiary in respect of the Receivables Facilities Assets
sold or transferred by it in connection with a Permitted Accounts
Receivable Securitization (it being the intent of the parties that
the amount of Receivables Facility Attributed Indebtedness at any time
outstanding approximate as closely as possible the principal amount of
Indebtedness which would be outstanding at such time under the
Permitted Accounts Receivable Securitization if the same were structured
as a secured lending agreement rather than a purchase agreement);
provided, however, that
- -------- -------
Debt consisting of factoring programs of Foreign Subsidiaries which
Are not part of a Permitted Accounts Receivables Securitization shall not
be included in the calculation of amounts under this definition.
"Receivables Subsidiary" means a special purpose, bankruptcy remote
-----------------------
Wholly-Owned Consolidated Subsidiary of the Company which may be formed for the
sole and exclusive purpose of engaging in activities in connection with the
purchase, sale and financing of Accounts Receivable in connection with and
pursuant to a Permitted Accounts Receivable Securitization.
"Receivables Subsidiary Pledge Agreement" means the pledge or security
---------------------------------------
agreement
in form and substance satisfactory to the Administrative Agent pursuant to which
the Company or a Participating Subsidiary pledges the Pledged Receivables
Subsidiary Stock and the Pledged Receivables Subsidiary Notes to Administrative
Agent for the benefit of the Lenders to secure the Obligations, as such
agreement may at any time be amended or modified in accordance with the terms
thereof and in effect.
"Tangible Assets" means the total consolidated assets of the Company
----------------
and its Subsidiaries less goodwill (as determined under GAAP) as disclosed
in the Company's financial statements delivered pursuant to Section 7.01 for the
most ------------
recently completed fiscal quarter of the Company.
1.2 AMENDED DEFINITIONS.
- --- --------------------
"Aggregate Revolving Loan Commitment". THE DEFINITION OF "AGGREGATE REVOLVING
-------------------------------------
LOAN COMMITMENT" IN SECTION 1.01 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY
DELETING THE "AND" AT THE END OF CLAUSE (i) THEREOF, BY ADDING THE LANGUAGE
----------
"PRIOR TO THE FOURTH AMENDMENT EFFECTIVE DATE AND" IMMEDIATELY FOLLOWING THE
LANGUAGE "AT ALL TIMES" IN CLAUSE (ii) THEREOF AND BY ADDING THE WORD "; AND"
-----------
AND THE FOLLOWING NEW CLAUSE (iii) IMMEDIATELY AT THE END THEREOF:
-------------
"(iii) at all times after the Fourth Amendment Effective Date,
the aggregate Revolving Loan Commitments of the Lenders equal to Two Hundred
Fifteen Million Dollars ($215,000,000), as such amount is further increased
pursuant to Section 2.01(c)(ii) or decreased pursuant to Section 2.05."
-------------------- -------------
1.3 SECTION 2.01(C)(II) THE REVOLVING CREDIT. Section 2.01(c)(ii) of the
- --- -------------------------------------------- -------------------
Credit Agreement is hereby amended
by (i) deleting the date "June 2, 2000" in the first sentence thereof and by
replacing it with the date "December 19, 2000"; and (ii) by deleting the first
parenthetical thereof and by replacing it with the following new parenthetical
"(after giving effect to which the Aggregate Revolving Loan Commitment shall not
exceed an amount equal to $265,000,000 less the aggregate amount of reductions
to the Aggregate Revolving Loan Commitment effected on or prior to the date of
such increase)".
1.4 SECTION 2.07(B) MANDATORY PREPAYMENTS. Section 2.07(b) of the Credit
- --- ---------------------------------------- ---------------
Agreement is hereby amended by adding the following new language "plus the
principal amount of any Receivables Facility Attributed Debt, if any, then
existing" immediately following the phrase "L/C Obligations" therein.
1.5 SECTION 2.07(F) MANDATORY PREPAYMENTS. Section 2.07(f) of the Credit
- --- ---------------------------------------- ---------------
Agreement is hereby amended by adding the following new language at the end of
the first parenthetical thereof "including Asset Dispositions relating to the
Permitted Accounts Receivable Securitization permitted thereby and other than
the net proceeds, if any, under $5 million of the Asset Disposition permitted by
the first proviso to Section 8.05(b)(iii)".
------- ------------
1.6 SECTION 5.03(A) NOTICE, APPLICATION. Section 5.03(a) of the Credit
- --- -------------------------------------- ----------------
Agreement is hereby amended by adding the following new sentence immediately at
the end thereof:
"The Company hereby agrees to disclose on each Notice of Borrowing and L/C
Application or L/C Amendment Application the then outstanding principal amount
of any Receivables Facility Attributed Debt."
1.7 SECTION 7.10 FURTHER ASSURANCES. Section 7.10 of the Credit Agreement
- --- --------------------------------- ------------
is hereby amended by adding the following new clause (c) thereto:
-----------
"(c) Receivables Financing Security. No later than the time
--------------------------------
that any Receivables Documents are entered into, and no later than the time any
capital is contributed or funds are advanced by the Company to the Receivables
Subsidiary, the Company and each Participating Subsidiary shall execute and
deliver to the Administrative Agent for the benefit of the Lenders, the
Receivables Subsidiary Pledge Agreement, accompanied by certificates
representing the Pledged Receivables Subsidiary Stock and the Pledged
Receivables Subsidiary Notes and related undated stock and note powers duly
executed in blank."
1.8 SECTION 8.01 DEBT. Section 8.01 of the Credit Agreement is hereby
- --- ------------------- -------------
amended in the following manner:
BY DELETING CLAUSE (c) THEREOF IN ITS ENTIRETY AND BY REPLACING IT WITH THE
-----------
FOLLOWING NEW CLAUSE (c);
-----------
"(c) Debt (in addition to the allowances in the other
clauses of this Section 8.01) in an aggregate principal amount at any time
- ------- -------------
outstanding not to exceed 15% of Tangible Assets; provided however, that in the
-------- -------
event that the Debt incurred in any single transaction permitted under this
clause (c) exceeds 5% of Tangible Assets, the terms of such Debt (including
- -----------
financing terms such as maturity and amortization) shall be satisfactory to the
Administrative Agent; provided, further, that the Company and its Subsidiaries
-------- -------
shall not be permitted to incur additional Debt under this clause (c) during the
----------
existence of an Event of Default or if an Event of Default would occur after
giving effect to the incurrence of such Debt;"
BY REPLACING "$100,000,000" IN CLAUSE (g) THEREOF WITH "$250,000,000"; AND
-----------
BY DELETING THE "AND" AT THE END OF CLAUSE (f) THEREOF AND BY REPLACING THE "."
----------
AT THE END OF CLAUSE (g) THEREOF WITH "; AND" AND BY ADDING THE FOLLOWING NEW
----------
CLAUSE (h):
- -----------
"(h) (i) Receivables Facility Attributed Debt and (ii)
intercompany Debt of the Receivables Subsidiary owed to the Company and the
Participating Subsidiaries to the extent it constitutes a permitted Investment
pursuant to Section 8.03(i) and any Debt resulting from the extension, renewal
or refinancing of the foregoing."
1.9 SECTION 8.03 INVESTMENTS. Section 8.03 of the Credit Agreement is
- --- -------------------------- -------------
hereby amended in the following manner:
BY DELETING CLAUSE (f) IN ITS ENTIRETY AND BY ADDING THE FOLLOWING NEW CLAUSE
----------- ----------
(f):
- ---
" (f) an Investment of up to $30 million in the aggregate
after giving effect to the Fourth Amendment to provide for the construction of a
new plant for the ViaTek program through an existing or newly created ViaTek
entity;"
BY DELETING THE "AND" AT THE END OF CLAUSE (g) THEREOF AND BY REPLACING THE "."
----------
AT THE END OF CLAUSE (h) THEREOF WITH "; AND" AND BY ADDING THE FOLLOWING NEW
----------
CLAUSES (i) AND (j):
- ----------------------
"(i) make Investments in the Receivables Subsidiary prior to
the occurrence and continuance of a Default or Event of Default which in the
judgment of the Company are reasonably necessary in connection with any
Permitted Accounts Receivable Securitization, provided that no such Investment
would cause a Default or Event of Default to occur by the making thereof; and
(j) so long as no Default or Event of Default exists or would
occur as a result thereof, make an Investment in Eurocir, after the Fourth
Amendment Effective Date, in an amount not to exceed $35 million constituting
the purchase of at least 60% of the voting equity in Eurocir by the Company
and/or MacDermid Espanola, SA and/or a wholly-owned Subsidiary of MacDermid
Espanola, SA; provided, however, in the event that the Company and/or MacDermid
-------- -------
Espanola, SA and/or such wholly-owned Subsidiary of MacDermid Espanola, SA) is
required to (or, pursuant to the call option in the Eurocir Purchase Documents,
chooses to) purchase the remaining 40% of the equity in Eurocir pursuant to the
terms of the Eurocir Purchase Documents, the Company and/or MacDermid Espanola,
SA and/or a wholly-owned Subsidiary of MacDermid Espanola, SA shall be permitted
to so purchase such equity for any amount not to exceed $60 million on the terms
set forth in the Eurocir Purchase Documents."
1.10 SECTION 8.04 NEGATIVE PLEDGE. Section 8.04 of the Credit Agreement is
- ---- ----------------------------- ------------
hereby amended by adding an "and" at the end of clause (b) thereof and by
----------
deleting clauses (c) through (e) thereof and by replacing such clauses with the
-----------------------
following new clause (c):
-----------
"(c) Liens not in excess of 15% of Tangible Assets securing (i)
factoring programs of Foreign Subsidiaries in an aggregate amount up to $20
million at any time outstanding; (ii) Debt permitted by Section 8.01(c); and
---------------
(iii) Liens on Receivables Facility Assets transferred (x) to the Receivables
Subsidiary or (y) by the Receivables Subsidiary to the purchasers of such
receivables (and the filing of financing statements in connection therewith)
created by, and as set forth in, the Receivables Documents pursuant to a
Permitted Accounts Receivable Securitization permitted by subsection
----------
8.05(b)(ii)(y)."
- --------------
1.11 SECTION 8.05 CONSOLIDATIONS, MERGERS AND SALES OF ASSETS.
- ---- ---------------------------------------------------------------
Section 8.05 of the Credit Agreement is hereby amended in the following manner:
- -------------
by adding the language "or any related business" to subsection (b)(i) thereof
-----------------
immediately following the language "specialty chemicals";
BY DELETING CLAUSE (y) IN SUBSECTION (b)(ii) THEREOF IN ITS ENTIRETY AND BY
----------- ------------------
REPLACING IT WITH THE FOLLOWING NEW CLAUSE (y:
-----------
"(y)15% of Tangible Assets with respect to Asset Dispositions consisting of
(a) equipment in connection with a sale-leaseback transaction pursuant to which
the Company or a Subsidiary will be the lessee and (b) contributions and other
transfers of Receivables Facility Assets by the Company and its Subsidiaries to
the Receivables Subsidiary and the sales and other transfers by the Receivables
Subsidiary of Receivables Facility Assets to the Issuer, in each case under this
sub clause (b) pursuant to the Receivables Documents under a Permitted Accounts
- --- ------
Receivable Securitization."; and
(c) the following new language shall be added to the end of subsection (b) (iii)
--------------------
thereof:
"; provided, however, the Company may transfer up to 40% of
-------- -------
its equity interest in Dynacircuits (either by contribution, sale, or otherwise)
to Eurocir (or the minority equity holders of Eurocir) on terms satisfactory to
the Administrative Agent; provided, further, that it is expressly agreed that
-------- -------
the net proceeds of any such transaction, if any, under $5 million shall not be
subject to the mandatory prepayment provisions of Section 2.07(f)."
----------------
1.12 SECTION 9.03 MAXIMUM TOTAL DEBT TO CONSOLIDATED EBITDA. Section 9.03
- ---- -------------------------------------------------------- ------------
of the Credit Agreement is hereby amended by deleting the language "Consolidated
Total Debt" in the introductory paragraph thereto and by replacing it with the
language "Adjusted Consolidated Total Debt".
1.13 INCORPORATION OF REPRESENTATIONS AND WARRANTIES. Article VI of the
- ---- --------------------------------------------------- ----------
Agreement is hereby amended by adding the following new Section 6.26:
-------------
"6.26 Representations and Warranties Incorporated From the Fourth
-----------------------------------------------------------------
Amendment. Each of the representations and warranties given by Company to the
Administrative Agent and the Lenders in the Fourth Amendment are true and
correct in all material respects as of the date of the Fourth Amendment, except
to the extent such representations and warranties are expressly made as of a
specified date in which event such representations and warranties shall be true
and correct as of such specified date, and such representations and warranties
are incorporated herein by this reference with the same effect as though set
forth in their entirety herein."
2. ACKNOWLEDGEMENT AND AGGREGATE REVOLVING LOAN COMMITMENT INCREASE.
- -- ----------------------------------------------------------------------
(a) The Company, the Administrative Agent and the Majority Lenders hereby
acknowledge that PTI Productos Technicos Para Impressaro LTDA, a Brazilian
corporation and a Wholly-Owned Consolidated Subsidiary is a Foreign Subsidiary
subject to the provisions of Section 7.11 of the Credit Agreement but which, due
------------
to the relative cost and difficulty related thereto, shall not be required to
deliver the documents required by said Section 7.11 at this time.
-------------
(b)Each of the Lenders listed on Exhibit A attached hereto agrees to increase
---------
its existing Revolving Loan Commitment effective as of the Fourth Amendment
Effective Date by the amount set forth opposite such Lender's name on Exhibit A
---------
and to make its pro-rata portion of the Revolving Loans requested by the Company
on the Fourth Amendment Effective Date after giving effect to the increase in
such Lender's Revolving Loan Commitment. Wachovia Bank, N.A. is currently not a
Lender under the Credit Agreement but desires to participate in the Revolving
Loan Commitment as a Lender effective as of the Fourth Amendment Effective Date
and agrees to make its pro-rata portion of the Revolving Loans outstanding on
the Fourth Amendment Effective Date and to make its pro rata portion of the
Revolving Loans requested by the Company on the Fourth Amendment Effective date.
The existing Schedule 2.01 to the Credit Agreement is hereby amended to reflect
-------------
the increases in the Revolving Loan Commitments of certain Lenders and the
addition of Wachovia Bank, N.A. as a new Lender by replacing such schedule in
its entirety with the Schedule 2.01 attached hereto as Exhibit B.
-------------- ----------
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
- -- ------------------------------------------------
and warrants to Administrative Agent and the Lenders as follows:
- --
3.1 INCORPORATION OF REPRESENTATION AND WARRANTIES FROM AGREEMENT. The
- --- ------------------------------------------------------------------
representations and warranties contained in the Credit Agreement, as amended
hereby, and in the other Loan Documents are true and correct in all material
respects at and as of the Fourth Amendment Effective Date (except to the extent
specifically made with regard to a particular date in which case such
representations and warranties shall be true and correct as of such date).
3.2 ABSENCE OF DEFAULT OR EVENT OF DEFAULT. Before and after giving effect
- --- ---------------------------------------
to this Amendment, no Default or Event of Default will exist or will be
continuing.
3.3 CORPORATE POWER AND AUTHORITY. The Company has the corporate power and
- --- ------------------------------
authority to execute, deliver and perform the terms and provisions of this
Amendment and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of this Amendment.
3.4 NO ADDITIONAL CONSENTS REQUIRED. No authorization or approval or other
- --- --------------------------------
action by, and no notice to or filing or registration with, any Person is
required in connection with, the execution, delivery and performance hereof
other than those obtained and in full force and effect.
3.5 BINDING OBLIGATION. This Amendment has been duly executed and delivered
- --- ------------------
by the Company and is the legal, valid and binding obligation the Company
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and general principles of equity (regardless of whether
enforcement is sought in equity or at law).
3.6 NO VIOLATION OR CONFLICT. Neither the execution, delivery and
- --- ---------------------------
performance of this Amendment by the Company nor the consummation of the
transactions contemplated hereby will (i) contravene any provision of any
Requirement of Law applicable to the Company or (ii) conflict with or result in
a breach by the Company of any Organizational Document.
3.7 GOOD STANDING. On the Fourth Amendment Effective Date, the Company is a
- --- -------------
duly organized and validity existing corporation in good standing in its state
of incorporation.
3.8 NO AMENDMENTS TO BYLAWS. A true and complete copy of the bylaws of the
- --- ------------------------
Company has been delivered to Administrative Agent prior to or on the date of
this Amendment.
4. CONDITIONS TO EFFECTIVENESS OF THE AMENDMENT. Subject to the terms and
- -- ----------------------------------------------
conditions of this Section 4, this Amendment shall become effective upon the
date of the satisfaction of the conditions set forth below (the "Fourth
Amendment Effective Date"):
4.1 PROPER EXECUTION AND DELIVERY OF AMENDMENT. The Company, Administrative
- --- -------------------------------------------
Agent, the Majority Lenders and Wachovia Bank, N.A. shall have duly executed and
delivered to Administrative Agent this Amendment.
4.2 REPRESENTATIONS AND WARRANTIES; DEFAULT OR EVENT OF DEFAULT; OFFICER'S
- --- ------------------------------------------------------------------------
CERTIFICATE. After giving effect to this Amendment, the representations and
- -----------
warranties set forth in the Credit Agreement, in the other Loan Documents and in
Section 3 of this Amendment shall be true and correct, except to the extent such
representations and warranties are expressly made as of a specified date in
which event such representations and warranties shall be true and correct as of
such specified date, no Default or Event of Default shall have occurred or be
continuing and Administrative Agent shall have received a certificate executed
by a Responsible Officer on behalf of the Company, dated the Fourth Amendment
Effective Date stating that after giving effect to this Amendment, the
representations and warranties set forth in the Credit Agreement, in the other
Loan Documents and in Section 3 of this Amendment are true and correct as of the
---------
date of such certificate, except to the extent such representations and
warranties are expressly made as of a specified date in which event such
representations and warranties shall be true and correct as of such specified
date, no Default or Event of Default has occurred and is continuing, and that
the conditions of this Section 4 have been fully satisfied or waived (other than
those conditions which require the satisfaction of the Administrative Agent).
4.3 APPROVALS. All necessary governmental (domestic and foreign) and third
- --- ---------
party approvals in connection with the execution and delivery of this Amendment
shall have been obtained and remain in effect, without any action being taken by
any competent authority which restrains, prevents or imposes materially adverse
conditions upon the consummation of all or any part thereof. Additionally,
there shall not exist any judgment, order, injunction or other restraint issued
or filed or a hearing seeking injunctive relief or other restraint pending or
notified prohibiting or imposing materially adverse conditions upon all or any
part of the execution and delivery of this Amendment.
4.4 FEES. The Company shall have paid to Administrative Agent and the
- --- ----
Lenders all costs, fees and expenses (including, without limitation, the
reasonable legal fees and expenses of Winston & Strawn invoiced on or prior to
the Fourth Amendment Effective Date) payable to Administrative Agent and the
Lenders to the extent then due, including, without limitation, pursuant to
Section 6 of this Amendment.
4.5 NO CONFLICT. The execution of this Amendment and the consummation of
- --- ------------
the transactions contemplated thereby shall not violate or conflict with any
law, rule or regulation or any material agreement, contract or other obligation
binding upon or affecting the property of Company or any of its Subsidiaries or
business.
4.6 CORPORATE PROCEEDINGS AND DELIVERIES. All corporate and legal
- --- ---------------------------------------
proceedings and all instruments and agreements in connection with the execution
and delivery of this Amendment shall be satisfactory in form and substance to
Administrative Agent and the Majority Lenders and Administrative Agent and all
Lenders shall have received all information and copies of all documents and
papers, including records of corporate proceedings, governmental approvals, good
standing certificates and bring-down telegrams or certificates, if any, which
Administrative Agent or any Lender reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified by proper
corporate or Governmental Authorities.
Each Lender hereby agrees that by its execution and delivery of its
signature page hereto, such Lender approves of and consents to each of the
matters set forth in this Amendment which must be approved by, or which must be
satisfactory to, the Administrative Agent, or the Majority Lenders or such
Lender, as the case may be; provided that, in the case of any agreement or
--------
document which must be approved by, or which must be satisfactory to, the
Majority Lenders, Administrative Agent or Borrower shall have delivered a copy
of such agreement or document to such Lender if so requested on or prior to the
Fourth Amendment Effective Date.
The Company hereby agrees to deliver to the Administrative Agent, on behalf
of the Lenders (i) a Joinder to the Subsidiary Guaranty and Subsidiary Pledge
Agreement executed by Dynacircuits and a Control Agreement relating to the
equity interests in Dynacircuits; and (ii) the original stock certificate of
MacDermid Espanola, S.A., a Spanish corporation, together with the required
notarization from a duly authorized notary in Spain to complete the pledge of
such shares to the Administrative Agent for the benefit of the Lenders.
5. REFERENCES TO AND EFFECT ON THE CREDIT AGREEMENT.
- -- -------------------------------------------------------
On and after the date hereof each reference in the Credit Agreement to
"this Agreement," "hereunder," "hereof," "herein," or words of like import, and
each reference to the Agreement, as the case may be, in the Loan Documents and
all other documents (the "Ancillary Documents") delivered in connection with the
Credit Agreement shall mean and be a reference to the Credit Agreement as
amended hereby.
Except as specifically amended above, the Credit Agreement and the other
Loan Documents shall remain in full force and effect and are hereby ratified and
confirmed.
The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Lenders or Administrative Agent under the Credit Agreement or the
other Loan Documents.
6. FEES, COSTS AND EXPENSES. On or before the Fourth Amendment Effective
- -- ---------------------------
Date, (a) the Company agrees to pay a fee to the Administrative Agent on behalf
of each Lender (other than any Lender who has waived such fee) which has
executed and delivered this Amendment on or prior to 5:00 p.m. E.S.T. on
December 19, 2000 equal to 7.5 bps times the sum of the aggregate Commitment of
such Lender as in effect under the Credit Agreement on the Fourth Amendment
Effective Date; (b) the Company agrees to pay an up front fee to the
Administrative Agent on behalf of each Lender (including Bank of America) listed
on Exhibit A hereto equal to the fee scheduled on Exhibit A for such Lender on
---------- ---------
the Effective Date; (c) the Company agrees to pay to the Administrative Agent
for the Administrative Agent's own account those fees specified in that certain
Fee Letter dated as of December 19, 2000 among the Company and the
Administrative Agent; and (d) the Company also agrees to pay all reasonable
costs and expenses in connection with the negotiation, preparation, printing,
typing, reproduction, execution and delivery of this Amendment and all other
documents furnished pursuant hereto or in connection herewith, including without
limitation, the reasonable fees and out-of-pocket expenses of Winston & Strawn,
special counsel to Administrative Agent, or the reasonable allocated costs of
staff counsel as well as the fees and out-of-pocket expenses of counsel,
independent public accountants and other outside experts retained by
Administrative Agent in connection with the administration of this Amendment.
7. REAFFIRMATION OF GUARANTIES. Each Subsidiary Guarantor as a guarantor of
- -- ---------------------------
the Obligations under the Subsidiary Guaranty and the other Loan Documents,
hereby reaffirms its continuing obligations and liabilities thereunder, and
agrees that such Subsidiary Guaranty and the other Loan Documents shall remain
in full force and effect and cover and extend to all Obligations under the
Credit Agreement (as amended hereby).
8. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
- -- ---------------------------
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of a signature page to
this Amendment by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Amendment.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
- -- --------------
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
MacDERMID, INCORPORATED
By: /s/ Gregory M. Bolingbroke
------------------------
Gregory M. Bolingbroke
Title: Vice President, Treasurer and Controller
--------------------------------------------
MacDERMID TOWER, INC.
MacDERMID TARTAN, INC.
MacDERMID ACUMEN, INC.
MacDERMID EQUIPMENT, INC.
MacDERMID SOUTH ATLANTIC, INC.
MacDERMID OVERSEAS ASIA,
LIMITED
MacDERMID EUROPE, INC.
MacDERMID DELAWARE, INC.
MacDERMID INVESTMENTS
CORPORATION
ELNIC, INC.
MacDERMID SOUTH AMERICA, INC.
SPECIALTY POLYMERS, INC.
ECHO INVESTMENTS, INC.
MCD ACQUISITION CORP.
W. CANNING, INC.
W. CANNING USA, LLC
CANNING GUM, LLC
By: /s/ Mary Anne Tillona
-------------------
Mary Anne Tillona
Title: Secretary
---------
BANK OF AMERICA, N.A., f/k/a BANKOF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, successor by
merger to BANK OF AMERICA, N.A.,
f/k/a NATIONSBANK, N.A.,
as Administrative Agent
By: /s/ Donald J. Chin
----------------
Donald J. Chin
Title: Managing Director
------------------
BANK OF AMERICA, N.A., f/k/a BANK
OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, successor by
merger to BANK OF AMERICA, N.A.,
f/k/a NATIONSBANK, N.A.,
Individually as a Lender, the Swing Line
Lender and as the Issuing Bank
By: /s/ Donald J. Chin
----------------
Donald J. Chin
Title: Managing Director
------------------
FLEET BANK, N.A., as Syndication Agent and as a Lender
By: /s/ Deanne M. Horn
----------------
Deanne M. Horn
Title: Director
--------
THE BANK OF NEW YORK, as Co-Agent and as a Lender
By:_________________________________
Title:_______________________________
FIRST UNION NATIONAL BANK, as Co-Agent and as a Lender
By:_________________________________
Title:_______________________________
LLOYDS TSB BANK PLC as Co-Agent and as a Lender
By:_________________________________
Title:_______________________________
LLOYDS TSB BANK PLC as Co-Agent and as a Lender
By:_________________________________
Title:_______________________________
THE CHASE MANHATTAN BANK
By:_________________________________
Title:_______________________________
COMERICA BANK
By: /s/ Jeffrey E. Peck
-----------------
Jeffrey E. Peck
Title: Vice President
---------------
BANK ONE, N.A. (f/k/a/ THE FIRST NATIONAL BANK
OF CHICAGO)
By:_________________________________
Title:_______________________________
ABN AMRO BANK N.V.
By: /s/ George Dugan
-------------
George Dugan
Title: Group Vice President
----------------------
ABN AMRO BANK N.V.
By:_________________________________
Title:_______________________________
BANK OF MONTREAL
By: /s/ Michael P. Joyce
------------------
Michael P. Joyce
Title: Managing Director
------------------
BANK OF TOYKO-MITSUBISHI TRUST COMPANY
By:_________________________________
Title:_______________________________
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG, CAYMAN ISLAND BRANCH
By: /s/ Richard W. Wilbert
--------------------
Richard W. Wilbert
Title: Vice President
---------------
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG, CAYMAN ISLAND BRANCH
By: /s/ Stephen A. Santora
--------------------
Stephen A. Santora
Title: Vice President
---------------
THE ROYAL BANK OF SCOTLAND plc
By: /s/ Scott Barton
-------------
Scott Barton
Title: Sr. Vice President
--------------------
UNICREDITO ITALIANO S.p.A., New York
Branch
By: /s/ Nicola Longodente
------------------
Nicola Longodente
Title: First Vice President
----------------------
UNICREDITO ITALIANO S.p.A., New York Branch
By: /s/ Gianfranco Bisagni
-------------------
Gianfranco Bisagni
Title: First Vice President
----------------------
HSBC BANK USA
By: /s/ Johan Sorensson
----------------
Johan Sorensson
Title: Vice President
---------------
FORTIS (USA) FINANCE LLC
By:_________________________________
Title:_______________________________
WACHOVIA BANK, N.A.
By: /s/ Gary Hughes
------------
Gary Hughes
Title: Senior Vice President
-----------------------