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EXHIBIT 10.49
FIRST AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDED AND RESTATED LOAN AGREEMENT ("this Agreement") dated
as of October 31, 2001 by and between FLEET NATIONAL BANK (f/k/a BankBoston,
N.A. and The First National Bank of Boston) (the "Bank") with its principal
address at 100 Federal Street, Boston, Massachusetts 02110 (the 'Bank"); and
CHASE CORPORATION, a Massachusetts corporation with its principal address at 26
Summer Street, Bridgewater, Massachusetts 02324-2626 (the "Borrower"). Certain
capitalized terms used herein without definition are defined in Section 7.1
hereof.
RECITALS,
A. The Bank and the Borrower entered into a Loan and Security
Agreement dated on or about April 11, 1991, as amended on February 26, 1993,
January 14, 1994, May 24, 1994, February 22, 1995, July 25, 1995, January 12,
1996, September 11, 1996, February 24, 1998, June 30, 1998, January 26, 1999,
February 24, 1999, May 26, 1999, February 29, 2000 and December 2000 (as
amended, the "ORIGINAL AGREEMENT"), providing for revolving loans by the Bank to
the Borrower in the aggregate maximum principal amount of $6,000,000 and for
various teen loans by the Bank to the Borrower. Capitalized terms used herein
without definition shall have the meanings assigned to them in the Loan
Agreement.
B. The Borrower desires to extend its revolving line of credit with
the Bank and obtain an additional $4,000,000 in term loan financing from the
Bank.
C. The Borrower wishes to amend and restate the Original Agreement
to evidence such extension, such additional term loan financing and certain
related revisions of the terms thereof.
D. The Bank is willing to provide such funds and to amend and
restate the Original Agreement as contemplated above, all subject to the terms
and conditions of this Agreement.
NOW THEREFORE, the parties hereto, intending to be legally bound, and in
consideration of the foregoing and the mutual covenants contained herein, hereby
agree that the Original Agreement be, and it hereby is, amended and restated to
read in its entirety (but retaining references to the foregoing Recitals) as
follows:
I. AMOUNTS AND TERMS
1.1. REFERENCES TO DOCUMENTS. Reference is made to (a) that certain
$6,000,000 principal amount Amended and Restated Revolving Credit Note of even
date herewith (the "Revolving Note"); (b) Term Note C, $310,500 of which is
currently outstanding; (c) Term Note D, $1,300,000 of which is currently
outstanding; (d) Term Note E, $850,000 of
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which is currently outstanding and (e) that certain $4,000,000 face principal
amount Term Note of even date herewith, being issued on the date hereof, and
referred to herein as Term Note f, each of which promissory notes is made by the
Borrower and payable to the order of the Bank.
1.2. THE BORROWING; REVOLVING NOTE. Subject to the terms and
conditions hereinafter set forth, the Bank will make revolving credit loans
("Revolving Loans") to the Borrower, in such amounts as the Borrower may
request, on any Business Day prior to the first to occur of (a) the Expiration
Date or (b) the termination of the within-described revolving financing
arrangements pursuant to Section 5.2 or Section 6.4; PROVIDED, however, that the
aggregate principal amount of Revolving Loans outstanding shall at no time
exceed the Available Commitment. Within such limit, and subject to the terms and
conditions hereof, the Borrower may obtain Revolving Loans, repay Revolving
Loans and obtain Revolving Loans again on one or more occasions. The Revolving
Loans shall be evidenced by the Revolving Note. The Borrower hereby irrevocably
authorizes the Bank to make or cause to be made, on a schedule attached to the
Revolving Note or on the books of the Bank, at or following the time of making
each Revolving Loan and of receiving any payment of principal, an appropriate
notation reflecting such transaction and the then aggregate unpaid principal
balance of the Revolving Loans. The amount so noted shall constitute presumptive
evidence as to the amount owed by the Borrower with respect to principal of the
Revolving Loans. Failure of the Bank to make any such notation shall not,
however, affect any obligation of the Borrower or any right of the Bank
hereunder or under the Revolving Note.
1.3. REPAYMENT; RENEWAL.
(a) The Borrower shall repay in full all Revolving Loans and all
interest thereon upon the first to occur of: (i) the Expiration Date or (ii) an
acceleration under Section 5.2(a) following an Event of Default.
(b) The Bank may, upon the written request of the Borrower, at the
Bank's sole discretion, renew the financing arrangements described herein by
extending the Expiration Date in a writing signed by the Bank and accepted by
the Borrower. Neither the inclusion herein or elsewhere of covenants relating to
periods of time after the Expiration Date, nor any other provision hereof, nor
any action (except a written extension pursuant to the immediately preceding
sentence), non-action or course of dealing on the part of the Bank will be
deemed an extension of, or agreement on the part of the Bank to extend, the
Expiration Date.
1.4. TERM LOANS; TERM NOTES. The Term Loan C, the Term Loan D and the
Term Loan E are currently outstanding, as specified in Section 1.1. Subject to
the terms and conditions hereinafter set forth, the Bank will make an additional
term loan (the "Term Loan F") to the Borrower on the date of this Agreement in
the principal amount of $4,000,000. Each Term Loan shall be evidenced by the
applicable Term Note. The Borrower hereby irrevocably authorizes the Bank to
make or cause to be made, on a schedule attached to the applicable Term Note or
on the books of the Bank, at or following the time of receiving any payment of
principal, an appropriate notation reflecting such transaction and the then
aggregate unpaid
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principal balance of the applicable Term Loan. The amount so noted shall
constitute PRIMA FACIE evidence as to the amount owed by the Borrower with
respect to principal of such Term Loan. Failure of the Bank to make any such
notation shall not, however, affect any obligation of the Borrower or any right
of the Bank hereunder or under any Term Note.
L5. PRINCIPAL REPAYMENT OF THE TERM LOANS. The Borrower shall repay
principal of the respective Term Loans as follows:
(a) In accordance with the terms of the Original Agreement, the
remaining principal balance of Term Loan C shall be repaid in nine (9) equal
quarterly installments of $34,500, the next such payment being due and payable
on December 1, 2001 and the remaining payments being payable on each March 1,
June 1, September 1 and December 1 thereafter, until paid in full, in accordance
with the terms of Term Note C.
(b) In accordance with the terms of the Original Agreement, the
remaining principal balance of Term Loan D shall be repaid in eight (8) equal
quarterly installments of $250,000, the next such payment being due and payable
on November 1, 2001 and the remaining payments being payable on each February 1,
May 1, August 1 and November 1 thereafter, until paid in full, in accordance
with the terms of Term Note E.
(c) In accordance with the terms of the Original Agreement, the
remaining principal balance of Teen Loan E shall be repaid in seventeen (17)
equal quarterly installments of $50,000, the next such payment being due and
payable on January 1, 2002 and the remaining payments being payable on each
April, July 1, October 1 and January 1 thereafter, until paid in full, in
accordance with the terms of Term Note E.
(d) The principal balance of Term Loan F shall be repaid in sixteen
(16) equal quarterly installments of $250,000, on each January 1, April 1, July
1 and October 1 of each year, commencing on January 1, 2002, until paid in full,
in accordance with the terms of Term Note F.
1.6. CERTAIN PREPAYMENTS OF LOANS.
(a) The Borrower may prepay, at any time, without penalty or
premium, the whole or any portion of any Floating Rate Loan; PROVIDED that, on
the date of such prepayment, the Borrower pays all interest on the Loan (or
portion thereof) so prepaid accrued to the date of such prepayment.
(b) Subject to Section 1.11, the Borrower may prepay the whole or
any portion of any Eurodollar Loan; PROVIDED that (i) the Borrower shall give
the Bank not less than two (2) Business Days' prior written notice of its intent
so to prepay, (ii) the Borrower shall pay all interest on each Eurodollar Loan
(or portion thereof) so prepaid accrued to the date of such prepayment, (iii)
any voluntary prepayment with respect to any Eurodollar Loan shall be in a
principal amount which is $100,000 or an integral multiple of $100,000 (PROVIDED
that, in any event, no Eurodollar Loan will remain outstanding in a principal
amount of less than $250,000), and (iv) if the Borrower for any reason makes any
prepayment of a Eurodollar
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Loan prior to the last day of the Interest Period applicable thereto, the
Borrower shall forthwith pay all amounts owing to the Bank pursuant to the
provisions of Section 1.11 with respect to such Eurodollar Loan.
(c) If the principal amount of all Revolving Loans at any time
outstanding exceeds the Available Commitment, then the Borrower will forthwith
prepay so much of the Revolving Loans as may be required so that the principal
amount of all Revolving Loans then outstanding will not exceed the Available
Commitment.
(d) Prepayments of principal of any Term Loan will be applied to
installments of principal of such Term Loan thereafter coming due in the inverse
order of normal maturity. Amounts repaid or prepaid with respect to any Term
Loan are not available for reborrowing.
1.7. INTEREST RATE FOR LOANS.
(a) Except as otherwise provided below, interest on the Loans will
be payable at a fluctuating rate per annum (the "Floating Rate") which shall at
all times be equal to the Alternate Base Rate as in effect from time to time,
with a change in such rate of interest to become effective on each day when a
change in the Alternate Base Rate is effective.
(b) Subject to the conditions set forth herein, the Borrower may
elect that any Revolving Loan to be made under Section 1.2 and/or any portion of
the principal of any Term Loan will be a Eurodollar Loan. The rate of interest
per annum payable on any portion of any Loan which is a Eurodollar Loan will be
equal to the sum of (x) the Eurodollar Rate applicable thereto, PLUS (y) the
Eurodollar Rate Increment, with a change in such rate of interest to become
effective on each day when any change in the Reserve Percentage is effective.
The rate of interest per annum payable on any portion of the Tenn Loan which is
a Eurodollar Loan will be equal to the sum of (x) the Eurodollar Rate applicable
thereto, PLUS (y) the Eurodollar Rate Increment, with a change in such rate of
interest to become effective on each day when any change in the Reserve
Percentage is effective.
(c) The election by the Borrower of a Eurodollar Loan shall be made
by giving to the Bank a written notice received by the Bank within the time
period and containing the information described in the next following sentence
(a "Eurodollar Borrowing Notice"). The Eurodollar Borrowing Notice must be
received by the Bank no later than 12:00 Noon (Boston time) on that day which is
two Business Days prior to the date of the proposed Eurodollar Loan, must state
that a Eurodollar Loan is being requested, state the type of Loan (Revolving
Loan or Term Loan) and state the amount of the Eurodollar Loan requested (which
shall be $250,000 or an integral multiple of $100,000 in excess thereof), and
must specify the length and the proposed commencement date of the relevant
Interest Period. Notwithstanding anything provided elsewhere herein, the
Borrower may not elect any Interest Period with respect to a Eurodollar Loan
which is a Revolving Loan if such Interest Period would end after the Expiration
Date. Any Eurodollar Borrowing Notice shall, upon receipt by the Bank,
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become irrevocable and binding on the Borrower, and the Borrower shall, upon
demand and receipt of a Bank Certificate with respect thereto, forthwith jointly
and severally indemnify the Bank against any loss or expense incurred by the
Bank as a result of any failure by the Borrower to obtain or maintain any
requested Eurodollar Loan, including, without limitation, any loss or expense
incurred by reason of the liquidation or redeployment of deposits or other funds
acquired by the Bank to fund or maintain such Eurodollar Loan.
(d) Each Eurodollar Loan shall be due and payable in full (if not
required to be repaid earlier pursuant to the terms of this Agreement) on the
last day of the Interest Period applicable thereto, The principal amount of each
Eurodollar Loan so repaid may be reborrowed as a new Eurodollar Loan to the
extent and on the terms and conditions contained herein by delivery to the Bank
of a new Eurodollar Borrowing Notice conforming to the requirements set forth
above in this Section 1.7 (and any Eurodollar Loan not repaid and not so
reborrowed as a new Eurodollar Loan will be deemed to have been reborrowed as a
Floating Rate Loan). Notwithstanding any other provision of this Agreement, the
Bank need not make any Eurodollar Loan at any time when there exists any Default
or Event of Default.
(e) In any event, after the occurrence and during the continuance of
any Event of Default, principal of any Loan and, to the extent permitted by law,
overdue interest on any Loan shall bear interest at a rate per annum which at
all times shall be equal to the sum of (i) four percent (4%) per annum PLUS (ii)
the Prime Rate in effect from time to time, compounded monthly and payable on
demand. All interest and fees payable under this Agreement and/or under any Note
will be calculated on the basis of a 360-day year for the actual number of days
elapsed.
1.8 INTEREST PAYMENTS ON ALL LOANS. The Borrower will pay interest in
arrears on each applicable Interest Payment Date on the principal amount of all
Loans outstanding from time to time, from the date hereof until payment of all
Loans and Notes in full and the termination of this Agreement. In any event,
interest on the Term Loan shall also be paid on the date of repayment of the
Term Loan in full.
1.9 LETTERS OF CREDIT.
(a) Subject to the execution and delivery by the Borrower of a letter of
credit application and any other related documents on the Bank's customary forms
in effect from time to time (collectively, the "Letter of Credit Documents") and
in reliance upon the representations and warranties of the Borrower contained
herein, the Bank agrees from time to time until the first to occur of (i) the
Expiration Date or (ii) the termination of the within-described revolving
financing arrangements pursuant to Section 5.2 or Section 6.4, to issue, extend
and renew for the account of the Borrower one or more standby and documentary
letters of credit (each individually, a "Letter of Credit"), in such form as may
be requested from time to time by the Borrower and agreed to by the Bank. In the
event and to the extent that any provision of any Letter of Credit Document
shall be inconsistent with any provision of this Agreement,
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then the provisions of this Agreement shall govern.
(b) (i) The obligation of the Bank to issue, extend or renew any Letter
of Credit hereunder shall be subject to the conditions for Revolving Loans set
forth in Section 1.15 and to the following additional conditions:
(A) Such Letter of Credit shall provide for payment
in U.S. Dollars and shall expire by its terms no later than the
earlier to occur of (A) 30 days prior to the Expiration Date and
(b) one year from the date of its issuance;
(B) After giving effect to such issuance, extension
or renewal, (1) the aggregate outstanding principal amount of
the Revolving Loans shall not exceed the Available Commitment
and (2) the LC Exposure Amount shall not exceed $1,000,000;
(C) The form and terms of each Letter of Credit and
the related Letter of Credit Documents shall be acceptable to
the Bank; and
(D) Each Letter of Credit shall be issued to support
obligations of the Borrower incurred in the ordinary course of
its business.
(ii) Whenever the Borrower desires to have a Letter of Credit
issued, extended or renewed, the Borrower will furnish to the Bank a
written application therefor which shall (A) be received by the Bank not
less than three Business Days prior to the proposed date of issuance,
extension or renewal and (B) specify (1) such proposed date (which must
be a Business Day), (2) the expiration date of such Letter of Credit,
(3) the name and address of the beneficiary of the Letter of Credit, (4)
the amount of such Letter of Credit, and (5) the purpose and proposed
form of such Letter of Credit. Each Letter of Credit shall be subject to
the International Standby Practices (1998) and, to the extent not
inconsistent therewith, the laws of The Commonwealth of Massachusetts.
(c) In order to induce the Bank to issue, extend and renew each
Letter of Credit, the Borrower hereby agrees to reimburse or pay to the Bank:
(i) except as otherwise expressly provided in paragraph (ii)
below, on the Business Day immediately following each date that any
draft presented under such Letter of Credit is honored by the Bank or
the Bank otherwise makes a payment with respect thereto, as indicated in
the notice thereof from the Bank to the Borrower (A) the amount paid by
the Bank under or with respect to such Letter of Credit, and (B) the
amount of any taxes, fees, charges or other reasonable costs and
expenses whatsoever incurred by the Bank in connection with any payment
made by the Bank under or with respect to such Letter of Credit; and
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(ii) upon the termination of the Revolving Commitment, or the
acceleration of Revolving Loans and the LC Draw Obligations in
accordance with Section 5.2, an amount equal to the LC Exposure Amount,
which amount shall be held by the Bank as cash collateral for all
Letters of Credit and LC Draw Obligations.
Interest shall accrue on any and all amounts remaining unpaid by the Borrower
under this Section 1.9 from the date of any draw under a Letter of Credit until
the Business Day immediately following such draw at the rate specified in
Section 1.7(a) for principal on the Revolving Loans and, thereafter, until
payment in full (whether before or after judgment) at the default rate set forth
in Section 1.7(e), and shall be payable to the Bank on demand.
(d) Except as otherwise provided herein, the Borrower may elect to
satisfy any LC Draw Obligation arising under paragraph (c)(i) of this Section
1.9 by borrowing a Revolving Loan which is a Floating Rate Loan in the amount
thereof and applying the proceeds thereto, provided that (i) all conditions to
such Revolving Loan set forth in Section 1.15 shall have been satisfied in full
and (ii) after giving effect to such Revolving Loan and the application of
proceeds thereof, the Revolving Loans will not exceed the Available Commitment.
(e) The Borrower assumes all risks in connection with the Letters of
Credit. The Borrower's obligations under this Section 1.9 shall be absolute and
unconditional under any and all circumstances and irrespective of the occurrence
of any Default or any condition precedent whatsoever or any setoff, counterclaim
or defense to payment which the Borrower may have or have had against the Bank
or any beneficiary of a Letter of Credit. The Borrower also agrees that the Bank
shall not be responsible for, and the Borrower's LC Draw Obligations shall not
be affected by, among other things, (i) the validity, genuineness or
enforceability of documents or of any endorsements thereon if believed by the
Bank to be valid, genuine and enforceable, even if such documents should in fact
prove to be in any or all respects invalid, insufficient (provided all such
documents conform on their face), fraudulent or forged, or (ii) any dispute
between or among the Borrower, any of its Subsidiaries, the beneficiary of any
Letter of Credit or any financing institution or other party to which any Letter
of Credit may be transferred or any claims or defenses whatsoever of the
Borrower or any of its Subsidiaries against the beneficiary of any Letter of
Credit or any such transferee. The Bank shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit
unless caused by the gross negligence, willful misconduct or bad faith of the
Bank. The Borrower agrees that any action taken or omitted to be taken by the
Bank under or in connection with each Letter of Credit and the related drafts
and documents, if done in good faith without gross negligence or willful
misconduct, shall be binding upon the Borrower and shall not subject the Bank to
any liability.
(f) The Bank shall be entitled to rely, and shall be fully protected
in relying upon, any Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, telecopy, telex or teletype
message, statement, order or other document believed by
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it to be genuine and correct and to have been signed, sent or made by the proper
Person and upon advice and statements of legal counsel, independent accountants
and other experts selected by the Bank.
(g) In order to induce the Bank to issue, extend and renew each
Letter of Credit which is a standby letter of credit, the Borrower hereby agrees
to pay to the Bank with respect to each such issuance, extension and renewal a
fee (in each case, a "Letter of Credit Fee") on the stated amount of such Letter
of Credit at a rate per annum equal to the Eurodollar. Rate Increment then in
effect payable quarterly in arrears on the last day of each calendar quarter. In
order to induce the Bank to issue or extend each Letter of Credit which is a
documentary letter of credit, the Borrower hereby agrees to pay to the Bank with
respect to each such issuance or extension the Bank's then standard fees for
documentary letters of credit. In addition, the Borrower shall pay to the Bank
any and all standard charges customarily made by the Bank in connection with
such issuance, extension or renewal.
1.10. RATE DETERMINATION PROTECTION. In the event that:
(a) the Bank shall determine that, by reason of circumstances
affecting the London interbank market or otherwise, adequate and reasonable
methods do not exist for ascertaining the Eurodollar Rate which would otherwise
be applicable during any Interest Period, or
(b) the Bank shall determine that:
(i) the making or continuation of any Eurodollar Loan has
been made impracticable or unlawful by (A) the occurrence of any
contingency that materially and adversely affects the London interbank
market or (B) compliance by the Bank with any applicable law or
governmental regulation, guideline or order or interpretation or change
thereof by any governmental authority charged with the interpretation or
administration thereof or with any request or directive of any such
governmental authority (whether or not having the force of law); or
(ii) the Eurodollar Rate will not, in the reasonable
determination of the Bank, adequately and fairly reflect the cost to the
Bank of funding the Eurodollar Loans for such Interest Period,
then the Bank shall forthwith give notice of such determination (which
shall be conclusive and binding on the Borrower) to the Borrower. In
such event the obligations of the Bank to make Eurodollar Loans shall be
suspended until the Bank determines that the circumstances giving rise
to such suspension no longer exist, whereupon the Bank shall notify the
Borrower.
1.11. PREPAYMENT OF EURODOLLAR LOANS. The following provisions of this
Section 1.11 shall
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be effective with respect to all Eurodollar Loans: If, due to acceleration of
any Note or due to voluntary prepayment or mandatory repayment or prepayment or
due to any other reason, the Bank receives payment of any principal of any
Eurodollar Loan on any date prior to the last day of the relevant Interest
Period or if for any reason any Eurodollar Loan is converted to a Floating Rate
Loan prior to the expiration of the relevant Interest Period, the Borrower shall
upon demand and receipt of a Bank Certificate from the Bank with respect
thereto, pay forthwith to the Bank a yield maintenance fee in an amount computed
as follows: The current rate for United States Treasury securities (bills on a
discounted basis shall be converted to a bond equivalent) with a maturity date
closest to the last day of the Interest Period applicable to the affected
Eurodollar Loan shall be subtracted from the "cost of funds" component (i.e.,
Eurodollar Rate) of the applicable interest rate in effect at the date of such
prepayment or conversion. If the result is zero or a negative number, there
shall be no yield maintenance fee. If the result is a positive number, then the
resulting percentage shall be multiplied by the amount of the principal balance
being prepaid. The resulting amount shall be divided by 360 and multiplied by
the number of days remaining in the relevant Interest Period. Said amount shall
be reduced to present value calculated by using the number of days remaining in
the relevant Interest Period and by using the above-referenced United States
Treasury securities rate as the discount rate. The resulting amount shall be the
yield maintenance fee due to the Bank upon prepayment or conversion of the
applicable Eurodollar Loan. Any acceleration of a Eurodollar Loan due to an
Event of Default will give rise to a yield maintenance fee calculated with the
respect to such Eurodollar Loan on the date of such acceleration in the same
manner as though the Borrower had exercised a right of prepayment at that date,
such yield maintenance fee being due and payable at that date.
1.12. INCREASED COSTS; CAPITAL ADEQUACY.
(a) If the adoption or any change, after the date hereof, of any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Bank with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency:
(i) shall subject the Bank to any Imposition or other charge
with respect to any Eurodollar Loan or the Bank's agreement to make
Eurodollar Loans, or shall change the basis of taxation of payments to
the Bank of the principal of or interest on any Eurodollar Loan or any
other amounts due under this Agreement in respect of the Eurodollar
Loans or the Bank's agreement to make Eurodollar Loans (except for
changes in the rate of tax on the over-all net income of the Bank); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit, deposit insurance or similar requirement (including,
without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding, with respect to
any Eurodollar Loan, any such requirement already included in the
applicable Reserve Rate) against assets of, deposits with or for the
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account of, or credit extended by, the Bank or shall impose on the Bank
or on the London interbank market any other condition affecting any
Eurodollar Loans
and the result of any of the foregoing is to increase the cost to the Bank of
making or maintaining any Eurodollar Loan or to reduce the amount of any sum
received or receivable by the Bank under this Agreement or under any Note with
respect to any Eurodollar Loan by an amount deemed by the Bank to be material,
then, upon demand by the Bank and receipt of a Bank Certificate from the Bank
with respect thereto, the Borrower shall pay to the Bank such additional amount
or amounts as the Bank certifies to be necessary to compensate the Bank for such
increased cost or reduction in amount received or receivable from the Borrower
in respect of such Eurodollar Loan.
(b) If the Bank shall have determined that the adoption or any change,
after the date hereof, of any applicable law, rule or regulation regarding
capital requirements for banks or bank holding companies, or any change after
the date hereof in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Bank with any
request or directive of such entity regarding capital adequacy (whether or not
having the force of law) has or would have the effect of reducing the return on
the Bank's capital with respect to any Loan (whether or not then subject to any
Eurodollar Rate) and/or with respect to the Bank's agreements hereunder to make
Loans to a level below that which the Bank could have achieved (taking into
consideration the Bank's policies with respect to capital adequacy immediately
before such adoption, change or compliance and assuming that the Bank's capital
was then fully utilized) by any amount deemed by the Bank to be material: (i)
the Bank shall promptly after its determination of such occurrence deliver a
Bank Certificate with respect thereto to the Borrower; and (ii) the Borrower
shall pay to the Bank as an additional fee from time to time on demand its
allocable portion of such amount as the Bank certifies to be the amount that
will compensate it for such reduction. The Bank shall allocate such cost
increases among its customers in good faith and on an equitable basis.
(c) A Bank Certificate of the Bank claiming compensation under this
Section 1.12 shall be presumptive evidence in the absence of manifest error. The
Bank shall not be entitled to compensation under this Section 1.12 attributable
to any period prior to 90 days before the Bank delivers such Bank Certificate to
the Borrower. Such certificate shall set forth, in reasonable detail, the nature
of the occurrence giving rise to such compensation, the additional amount or
amounts to be paid to the Bank hereunder and the method by which such amounts
are determined. In determining any such amount, the Bank may use any reasonable
averaging and attribution methods.
(d) No failure on the part of the Bank to demand compensation on any
one occasion shall constitute a waiver of its right to demand such compensation
on any other occasion and no failure on the part of the Bank to deliver any Bank
Certificate in a timely manner shall in any way reduce any obligation of the
Borrower to the Bank under this Section 1.12.
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1.13. ILLEGALITY OR IMPOSSIBILITY. Notwithstanding any other provision
of this Agreement, if the introduction of or any change in or in the
interpretation or administration of any law or regulation applicable to the Bank
or the Bank's activities in the London interbank market shall make it unlawful,
or any central bank or other governmental authority having jurisdiction over the
Bank or the Bank's activities in the London interbank market shall assert that
it is unlawful, or otherwise make it impossible, for the Bank to perform its
obligations hereunder to make Eurodollar Loans or to continue to fund or
maintain Eurodollar Loans, then on notice thereof and demand therefor by the
Bank to the Borrower, (i) the obligation of the Bank to fund Eurodollar Loans
shall terminate and (ii) all affected Eurodollar Loans shall be deemed to have
been converted into Floating Rate Loans on the last day of the then-current
Interest Period or on the last day on which such Eurodollar Loans may legally
remain outstanding (with the Borrower to be responsible for any amount payable
under Section 1.10 as a consequence of such conversion).
1.14. ADVANCES AND PAYMENTS.
(a) The proceeds of each Loan shall be credited by the Bank to a
general deposit accounts maintained by the Borrower with the Bank. The proceeds
of the Term Loan and the initial Revolving Loans will be used by the Borrower,
solely as set forth on item 1.14 of the attached Disclosure Schedule. The
proceeds of future Revolving Loans will be used solely for working capital,
general corporate purposes and funding LC Draw Obligations.
(b) The Bank shall notify the Borrower, in writing, as to the
amounts of all payments of interest, principal and other sums when same are due
by the Borrower, from time to time, under this Agreement and/or the Notes and
the Borrower hereby authorizes the Bank to thereafter charge any general deposit
account of the Borrower at the Bank with the amount of all payments of interest,
principal and other sums when same are due by the Borrower. The Bank shall
thereafter promptly thereafter notify the Borrower of the amount so charged. The
failure of the Bank so to notify the Borrower, to charge any account or to give
any such subsequent notice shall not affect the obligation of the Borrower to
pay interest, principal or other sums as provided herein or in the Notes.
(c) Whenever any payment to be made to the Bank hereunder or under
any Note shall be stated to be due on a day which is not a Business Day, such
payment may be made on the next succeeding Business Day, and interest payable on
each such date shall include the amount thereof which shall accrue during the
period of such extension of time. All payments by the Borrower hereunder and/or
in respect of any Note shall be made net of any impositions or taxes and without
deduction, set-off or counterclaim, notwithstanding any claim which the Borrower
may now or at any time hereafter have against the Bank. All payments of
interest, principal and any other sum payable hereunder and/or under any Note
shall be made to the Bank, in lawful money of the United States in immediately
available funds, at its office at 100 Federal Street, Boston, MA 02110 or at
such other address as the Bank may from time to time direct. All payments
received by the Bank after 3:00 p.m. on any day shall be deemed
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received as of the next succeeding Business Day. All monies received by the Bank
shall be applied in respect of the Loans specified by the Borrower and shall be
applied first to fees, charges, costs and expenses payable to the Bank under
this Agreement, the Notes and/or any of the other Loan Documents, next to
interest then accrued on account of the applicable Loan and only thereafter to
principal of the applicable Loan.
(d) If the entire amount of any required payment of principal and/or
interest on the Revolving Loans, the Term Loan or any LC Draw Obligation is not
paid within ten (10) days after the same is due, the Borrower shall pay to the
Bank a late fee equal to five percent (5%) of the required payment; provided,
that this Section 1.14(d) shall not apply to any amount whose maturity shall
have bee accelerated or to the principal balance of the Revolving Loans
outstanding as of the Expiration Date.
1.15 CONDITIONS TO ADVANCE. Prior to the making of the Term Loan F and
any Revolving Loans on the date hereof, the Borrower shall deliver to the Bank
duly executed copies of this Agreement, the Term Note F and the documents and
other items listed on the Closing Agenda delivered herewith by the Bank to the
Borrower, all of which, as well as all legal matters incident to the
transactions contemplated hereby, shall be satisfactory in form and substance to
the Bank and its counsel. Without limiting the foregoing, any Loan (including
the Term Loan F) and each Letter of Credit is subject to the further conditions
precedent that on the date on which such Loan is made or Letter of Credit issued
or renewed (and after giving effect thereto):
(a) All statements, representations and warranties of the Borrower
made herein shall continue to be correct in all material respects as of the date
of such Loan or Letter of Credit, except those made as of a specific date or end
of a period which were cor(r)ect as of such date or as of the end of such
period.
(b) All covenants and agreements of the Borrower contained herein
and/or in any of the other Loan Documents shall have been complied with in all
material respects on and as of the date of such Loan or Letter of Credit.
(c) No Default or Event of Default shall have occurred and be
continuing.
(d) No material adverse change shall have occurred in the financial
condition of the Borrower from that disclosed in the financial statements then
most recently furnished to the Bank.
Each request by the Borrower for any Loan or Letter of Credit, and each
acceptance by the Borrower of the proceeds of any Loan or issuance of any Letter
of Credit, as the case may be, will be deemed a representation and warranty by
the Borrower that at the date of such Loan or Letter of Credit and after giving
effect thereto all of the conditions set forth in
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the foregoing clauses (a)-(d) of this Section 1.15 will be satisfied.
1.16. REDUCTION OF REVOLVING COMMITMENT. The Borrower may, from time to
time, at its option, subject to the terms and conditions set forth herein, by
written notice to the Bank at least five (5) Business Days prior to the date of
the requested reduction, reduce the Revolving Commitment by integral multiples
of $500,000. Any such reduction shall be permanent and irrevocable.
Simultaneously with any reduction of the Revolving Commitment, the Borrower
shall pay to the Bank (i) Revolving Loans in the aggregate principal amount
necessary to cause the outstanding principal amount of the Revolving Loans to be
less than or equal to the Available Commitment and (ii) all amounts owing to the
Bank pursuant to the provisions of Section 1.11 with respect to Eurodollar Loans
so prepaid.
II. REPRESENTATIONS AND WARRANTIES
2.1. REPRESENTATIONS AND WARRANTIES. In order to induce the Bank to
enter into this Agreement and to make Loans and issue Letters of Credit
hereunder, the Borrower warrants and represents to the Bank as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of The Commonwealth of Massachusetts. The'
Borrower has full corporate power to own its property and conduct its business
as now conducted and as proposed to be conducted and to enter into and perform
this Agreement and the other Loan Documents. The Borrower is duly qualified to
do business in each jurisdiction where the failure so to qualify could (singly
or in the aggregate with all other such failures) have a Material Adverse
Effect, all such jurisdictions being listed on item 2.1(a) of the attached
Disclosure Schedule. At the date hereof, the Borrower has no Subsidiaries,
except as shown on said item 2.1(a). At the date hereof, the Borrower is not a
member of any partnership or joint venture, except as shown on said item 2.1(a).
(b) The execution and delivery by the Borrower of this Agreement and
each of the other Loan Documents and performance by the Borrower of its
obligations thereunder have been duly authorized by all necessary corporate and
other action and do not and will not:
(i) violate any provision of, or require as a prerequisite
to effectiveness any filing, registration, consent or approval under,
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to the
Borrower;
(ii) violate any provision of the charter or by-laws of the
Borrower, or result in a breach of or constitute a default or require
any waiver or consent under any indenture or loan or credit agreement or
any other material agreement, lease or instrument to which the Borrower
is a party or by which the Borrower or any of its properties may be
bound or affected or require any other consent of any Person; or
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(iii) result in, or require, the creation or imposition of any
lien, security interest or other encumbrance (other than in favor of the
Bank), upon or with respect to any of the properties now owned or
hereafter acquired by the Borrower.
(c) This Agreement and each of the other Loan Documents has been
duly executed and delivered by the Borrower and each is a legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its respective terms.
(d) Except as described on item 2.1(d) of the attached Disclosure
Schedule, there are no actions, suits, proceedings or investigations pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary of the Borrower before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, which
could hinder or prevent the consummation of the transactions contemplated hereby
or call into question the validity of this Agreement or any of the other Loan
Documents or any action taken or to be taken in connection with the transactions
contemplated hereby or thereby or which in any single case or in the aggregate
could have a Material Adverse Effect.
(e) The Borrower is not in violation of any term of its charter or
by-laws as now in effect. Neither the Bor(r)ower nor any Subsidiary of the
Borrower is in material violation of any term of any mortgage, indenture or
judgment, decree or order, or any other material instrument, contract or
agreement to which it is a party or by which any of its property is bound.
(f) The Borrower has filed (and has caused each Subsidiary of the
Borrower to file) all federal, foreign, state and local tax returns, reports and
estimates required to be filed by the Borrower or any such Subsidiary. All such
filed returns, reports and estimates are proper and accurate and the Borrower
(or the Subsidiary concerned, as the case may be) has paid all taxes,
assessments, impositions, fees and other governmental charges required to be
paid in respect of the periods covered by such returns, reports or estimates. No
deficiencies for any tax, assessment or governmental charge have been asserted
or assessed, and the Borrower knows of no material tax liability or basis
therefore.
(g) The Borrower is in compliance in all material respects with (and
each Subsidiary of the Borrower is in compliance with) all requirements of law,
federal, foreign, state and local, and all requirements of all governmental
bodies or agencies having jurisdiction over it, the conduct of its business, the
use of its properties and assets, and all premises occupied by it, failure to
comply with any of which could (singly or in the aggregate with all other such
failures) have a Material Adverse Effect. Without limiting the foregoing, the
Borrower has all the material franchises, licenses, leases, permits,
certificates and authorizations needed for the conduct of its business and the
use of its properties and all premises occupied by it, as now conducted, owned
and used and as proposed to be conducted, owned and used.
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(h) The audited annual consolidated financial statements of the
Borrower as at August 31, 2000 and for the fiscal year then ended and the
interim consolidated financial statements of the Borrower as at May 30, 2001 and
for the eight month period then ended, each heretofore delivered to the Bank,
are complete and accurate and fairly present the financial condition of the
Borrower as at the dates thereof and for the periods covered thereby, except
that such interim statements do not have footnotes and thus do not present the
information which would normally be contained in footnotes to financial
statements and are subject to year-end adjustments The Borrower does not have
any liability, contingent or otherwise, not disclosed in the aforesaid financial
statements or in any notes thereto that could materially affect the financial
condition of the Borrower. Since December 31, 2000, there has been no material
adverse development in the business, condition or prospects of the Borrower, and
the Borrower has not entered into any material transaction other than in the
ordinary course.
(i) The Borrower owns or has a valid right to use all of the
patents, licenses, copyrights, trademarks, trade names, know-how, trade secrets
and other intellectual property now being used or necessary to conduct its
business. The conduct of the Borrower's business as now operated does not
conflict with valid patents, copyrights, trademarks, trade names, know-how,
trade secrets or other intellectual property of others in any manner that could
materially adversely affect the business, prospects, assets or condition,
financial or otherwise, of the Borrower.
(j) The Borrower is not a party to any contract or agreement which
now has or, as far as can be reasonably foreseen by the Borrower at the date
hereof, will have a Material Adverse Effect.
(k) III. AFFIRMATIVE COVENANTS AND REPORTING REQUIREMENTS
Without limitation of any other covenants and agreements contained
herein or elsewhere, the Borrower agrees that so long as the financing
arrangements contemplated hereby are in effect or all or any Loan, any Letter of
Credit or any of the other Obligations shall be outstanding:
3.1. LEGAL EXISTENCE; QUALIFICATION; COMPLIANCE. The Borrower will
maintain (and will cause each Subsidiary of the Borrower to maintain) its
corporate existence and good standing in the jurisdiction of its formation. The
Borrower will qualify to do business and will remain qualified and in good
standing (and the Borrower will cause each Subsidiary of the Borrower to qualify
and remain qualified and in good standing) in each other jurisdiction where the
failure so to qualify could (singly or in the aggregate with all other such
failures) have a Material Adverse Effect. The Borrower will comply in all
material respects with (and will cause each Subsidiary of the Borrower to comply
with) its charter documents and by-laws. The Borrower will comply with (and will
cause each Subsidiary of the Borrower to comply with) all applicable laws, rules
and regulations (including, without limitation, ERISA and those relating to
environmental protection) other than (a) laws, rules or regulations the
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validity or applicability of which the Borrower or such Subsidiary shall be
contesting in good faith by proceedings which serve as a matter of law to stay
the enforcement thereof and (b) those laws, rules and regulations the failure to
comply with any of which could not (singly or in the aggregate) have a Material
Adverse Effect.
3.2. MAINTENANCE OF PROPERTY; INSURANCE. Subject to Section 4.8, the
Borrower will maintain and preserve (and will cause each Subsidiary of the
Borrower to maintain and preserve) all of its properties in good working order
and condition, making all necessary repairs thereto and replacements thereof.
The Borrower will maintain (and will cause each of its Subsidiaries to maintain)
insurance with respect to its property and business against such liabilities,
casualties and contingencies and of such types and in such amounts as shall be
reasonably satisfactory to the Bank from time to time and in any event all such
insurance as may from time to time be customary for companies conducting a
business similar to that of the Borrower in similar locales.
3.3. PAYMENT OF TAXES AND CHARGES. The Borrower will pay and discharge
(and will cause each Subsidiary of the Borrower to pay and discharge) all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or property, including, without limitation, taxes, assessments, charges
or levies relating to real and personal property, franchises, income,
unemployment, old age benefits, withholding, or sales or use, prior to the date
on which penalties would attach thereto, and all lawful claims (whether for any
of the foregoing or otherwise) which, if unpaid, might give rise to a lien upon
any property of the Borrower or any such Subsidiary, except any of the foregoing
which is being contested in good faith and by appropriate proceedings which
serve as a matter of law to stay the enforcement thereof and for which the
Borrower has established and is maintaining adequate reserves. The Borrower will
maintain in full force and effect, and comply with the terms and conditions of,
all permits, permissions and licenses necessary or desirable for its business.
3.4. ACCOUNTS. The Borrower will maintain its principal depository
and operating accounts with the Bank.
3.5. CONDUCT OF BUSINESS. The Borrower will conduct, in the ordinary
course, the business in which it is presently engaged. The Borrower will not,
without the prior written consent of the Bank, directly or indirectly (itself or
through any Subsidiary) enter into any other lines of business, businesses or
ventures which are not reasonably related to the business in which the Borrower
is presently engaged.
3.6. REPORTING REQUIREMENTS. The Borrower will furnish to the Bank:
(a) Within 90 days after the end of each fiscal year of the
Borrower, a copy of the annual audit report for such fiscal year for the
Borrower, including therein consolidated and consolidating balance sheets of the
Borrower and Subsidiaries as at the end of such fiscal year and related
consolidated and consolidating statements of income, stockholders' equity and
cash flow for the fiscal year then ended. The annual consolidated financial
statements shall be certified by independent public accountants selected by the
Borrower and reasonably acceptable to the Bank (which acceptable accountants
shall include Livingston & Haynes)
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such certification to be in such form as is generally recognized as
"unqualified". The Borrower will also deliver to the Bank, within 90 days
following the end of each fiscal year, an annual budget for the following year
(including balance sheet and income statement projections) for the Borrower,
prepared by the Borrower's management and approved by the Borrower's Board of
Directors, such budget to be in such detail as is reasonably satisfactory to the
Bank.
(b) Within 45 days after the end of each fiscal quarter of the
Borrower, consolidated and consolidating balance sheets of the Borrower and
Subsidiaries and related consolidated and consolidating statements of income and
cash flow, unaudited but prepared in accordance with generally accepted
accounting principles consistently applied fairly presenting the financial
condition of the Borrower and Subsidiaries as at the dates thereof and for the
periods covered thereby (except that such quarterly statements need not contain
notes to the financial statements) and certified as complete by the chief
financial officer of the Borrower, such balance sheets to be as at the end of
such fiscal quarter and such statements of income and cash flow to be for such
fiscal quarter and for the fiscal year to date, in each case together with a
comparison to the results for the corresponding fiscal period of the immediately
prior fiscal year.
(c) At the time of delivery of each annual or quarterly report or
financial statement of the Borrower, a certificate executed by the chief
financial officer of the Borrower stating that he or she has reviewed this
Agreement and the other Loan Documents and has no knowledge of any Event of
Default or, if he or she has such knowledge, specifying each such Event of
Default and the nature thereof. Each such certificate given as at the end of any
fiscal quarter of the Borrower will set forth the calculations necessary to
evidence compliance with Sections 3 .7-3 .8.
(d) As soon as possible and in any event within five days after the
Borrower has actual knowledge of the occurrence of any Default or Event of
Default, the statement of the Borrower setting forth details of each such
Default or Event of Default and the action which the Borrower proposes to take
with respect thereto.
(e) Promptly after receipt, a copy of all audits or reports
submitted to any Company by independent public accountants in connection with
any annual, special or interim audit of the books and records of such Company
prepared by such accountants and any "management letter" prepared by such
accountants.
(f) Promptly after the commencement thereof, notice of all actions,
suits and proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, to which the
Borrower or any Subsidiary of the Borrower is a party.
(g) Promptly upon request, such other information respecting the
financial condition, operations and prospects of the Borrower or any Subsidiary
as the Bank may from time to time reasonably request.
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3.7. TOTAL LIABILITIES TO TANGIBLE NET WORTH RATIO. The Borrower
shall, at the end of each of the following fiscal quarters and for the fiscal
quarter just ended, maintain a ratio of Total Liabilities to Tangible Net Worth
not exceeding the following:
<Table>
<Caption>
Fiscal Quarter Ending Maximum Ratio
December 31, 2001 2.50:1.00
March 31, 2002 2.00:1.00
and thereafter
</Table>
3.8. DEBT SERVICE COVERAGE RATIOS.
(a) The Borrower shall maintain for each 12 month period ending on
February 28 and August 31 of each fiscal year, on a rolling 12-month basis, a
ratio of Earnings Before Interest and Taxes to Interest Expense of at least
3.00:1.00.
(b) The Borrower shall maintain a ratio of Operating Cash Flow to
Debt Service of at least 1.30:1.00 for the 12-month period ending August 31,
2001 and the 3-month period ending November 1, 2001.
(c) The Borrower shall maintain a ratio of Operating Cash Flow to
Debt Service of at least 1.50:1.00 for each period of 3 months, 6 months, 9
months and 12 months in each fiscal year, on a rolling four-quarter basis,
commencing with the 6-month period ending February 28, 2002.
3.9. BOOKS AND RECORDS; INSPECTIONS. The Borrower will maintain (and
will cause each of its Subsidiaries to maintain) complete and accurate books,
records and accounts which will at all times accurately and fairly reflect all
of its transactions in accordance with generally accepted accounting principles
consistently applied. The Borrower will, at any reasonable time and from time to
time upon reasonable notice and during normal business hours (and without any
necessity for notice following the occurrence of an Event of Default), permit
the Bank, and any agents or representatives thereof, to examine and make copies
of and take abstracts from the records and books of account of, and visit the
properties of the Borrower and its Subsidiaries, and to discuss its affairs,
finances and accounts with its officers, directors and/or independent
accountants, all of whom are hereby authorized and directed to cooperate with
the Bank in carrying out the intent of this Section 3.9. Each financial
statement of the Borrower hereafter delivered pursuant to this Agreement will be
complete and accurate and will fairly present the financial condition of the
Borrower as at the date thereof and for the periods covered thereby; provided,
as to interim statements, that footnotes and the information normally contained
therein are not included and that such statements are subject to year-end
adjustments.
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IV. NEGATIVE COVENANTS
Without limitation of any other covenants and agreements contained
herein or elsewhere, the Borrower agrees that so long as the financing
arrangements contemplated hereby are in effect or any Loan, any Letter of Credit
or any of the other Obligations shall be outstanding:
4.1. INDEBTEDNESS. The Borrower will not create, incur, assume or suffer
to exist any Indebtedness (nor allow any of its Subsidiaries to create, incur,
assume or suffer to exist any Indebtedness), except for:
(a) Indebtedness owed to the Bank, including, without limitation,
the Indebtedness represented by the Notes or arising out of any Letter of
Credit;
(b) Indebtedness of the Borrower or any Subsidiary for taxes,
assessments and governmental charges or levies not yet due and payable;
(c) unsecured current liabilities of the Borrower or any Subsidiary
(other than for money borrowed or for purchase money Indebtedness with respect
to fixed assets) incurred upon customary terms in the ordinary course of
business;
(d) purchase money Indebtedness (including, without limitation,
Capital Lease Obligations) hereafter incurred to equipment vendors, equipment
lessors and other Persons providing purchase money financing to the Borrower for
new equipment purchased or leased by the Borrower after the date hereof for use
in the Borrower's business; provided that the Indebtedness permitted under this
clause (d) of this Section 4.1 will not exceed $500,000 in the aggregate
outstanding at any one time;
(e) other indebtedness (not described in any of clauses (a)-(d)
above) existing at the date hereof, but only to the extent set forth on item 4.1
of the attached Disclosure Schedule;
(f) any guaranties or other contingent liabilities expressly
permitted pursuant to Section 4.3; and
(g) any Synthetic Lease, so long as the Bank has previously approved
the terms thereof in writing.
4.2. LIENS. The Borrower will not create, incur, assume or suffer to
exist (nor allow any of its Subsidiaries to create, incur, assume or suffer to
exist) any mortgage, deed of trust, pledge, lien, security interest, or other
charge or encumbrance (including the lien or retained security title of a
conditional vendor) of any nature (collectively, "Liens"), upon or with respect
to any of its property or assets, now owned or hereafter acquired (including,
without limitation, any trustee process affecting any account of the Borrower
with the Bank), except that the foregoing restrictions shall not apply to:
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(a) Liens for taxes, assessments or governmental charges or levies
on property of the Borrower or any of its Subsidiaries if the same shall not at
the time be delinquent or thereafter can be paid without interest or penalty or
are being contested in good faith and by appropriate proceedings which serve as
a matter of law to stay any enforcement thereof and as to which adequate
reserves are maintained;
(b) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar Liens arising in the ordinary course of
business for sums not yet due or which are being contested in good faith and by
appropriate proceedings which serve as a matter of law to stay the enforcement
thereof and as to which adequate reserves are maintained;
(c) pledges or deposits under workmen's compensation laws,
unemployment insurance, social security, retirement benefits or similar
legislation;
(d) Liens in favor of the Bank;
(e) Liens in favor of equipment vendors, equipment lessors and other
Persons securing any purchase money Indebtedness permitted by clause (d) of
Section 4.1; provided that no such Lien will extend to any property of the
Borrower other than the specific items of equipment financed;
(f) rights of the licensee under any commercially reasonable license
of technology or other intellectual property given by the Borrower to any of the
Borrower's customers in the ordinary course of its business;
(g) refinancings, renewals or extensions of any of the foregoing
Liens; provided, however, that no such refinanced, renewed or extended Lien at
any time will extend to any property of any property of any Borrower or any
Subsidiary other than the specific assets previously subject to such Liens;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the aggregate,
do not in any case materially detract from the value of the property subject
thereto or materially interfere in the ordinary conduct of the business of the
Borrower or any of its Subsidiaries.
(i) other Liens existing at the date hereof, but only to the extent
and with the relative priorities set forth on item 4.2 of the attached
Disclosure Schedule.
4.3. GUARANTIES. The Borrower will not, without the prior written
consent of the Bank, assume, guarantee, endorse or otherwise become directly or
contingently liable (including, without limitation, liable by way of agreement,
contingent or otherwise, to purchase, to provide funds for payment, to supply
funds to or otherwise invest in any debtor or otherwise to assure any creditor
against loss) (and will not permit any of its Subsidiaries so to assume,
guaranty or become directly or contingently liable) in connection with any
indebtedness of any other Person, except (a) guaranties by endorsement for
deposit or collection in the ordinary
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course of business, and (b) guaranties existing at the date hereof and described
on item 4.3 of the attached Disclosure Schedule.
4.4. LOANS AND ADVANCES. The Borrower will not make (and will not permit
any Subsidiary to make) any loans or advances to any Person, including, without
limitation, the Borrower's directors, officers and employees, except (a) as
described on item 4.4 of the attached Disclosure Schedule, (b) so long as no
Default then exists, Affiliate Loans, (c) advances to such directors, officers
or employees with respect to expenses incurred by them in the ordinary course of
their duties and advances against salary, all of which loans and advances under
this clause (c) will not exceed, in the aggregate, $100,000 outstanding at any
one time, and (d) advances for security deposits.
4.5. SUBSIDIARIES; ACQUISITIONS. The Borrower will not, without the
prior written consent of the Bank, make (and will not permit any Subsidiary to
make) any acquisition of all or substantially all of the stock or other Equity
Interests of any other Person or of all or substantially all of the assets of
any other Person, other than any acquisition the purchase price for which does
not exceed $1,000,000. The Borrower will not become a partner in any partnership
or limited liability company. The Borrower will promptly inform the Bank if it
forms any Subsidiaries after the date of this Agreement.
4.6. MERGER. The Borrower will not, without the prior written consent of
the Bank, merge or consolidate with any Person, or sell, lease, transfer or
otherwise dispose of (whether in one or more transactions) any material portion
of its assets (including, without limitation, any material portion of its
intellectual property), other than (a) in a sale of inventory in the ordinary
course; and (b) licensing of any of its intellectual property in the ordinary
course of Borrower's business to another Person on commercially reasonable
terms.
4.7. AFFILIATE TRANSACTIONS. Except for transactions described on item
4.7 of the attached Disclosure Schedule, the Borrower will not, without the
prior written consent of the Bank, enter into any transaction, including,
without limitation, the purchase, sale or exchange of any property or the
rendering of any service, with any Affiliate of the Borrower, except in the
ordinary course and pursuant to the reasonable requirements of the Borrower's
business and upon fair and reasonable terms no less favorable to the Borrower
than would be obtained in a comparable arms'-length transaction with any Person
not an Affiliate; provided that nothing in this Section 4.7 shall be deemed to
restrict the payment of salary or other similar payments to any officer or
director of the Borrower at a level consistent with the salary and other
payments being paid at the date of this Agreement and heretofore disclosed in
writing to the Bank, nor to prevent the hiring of additional officers at a
salary level consistent with industry practice, nor to prevent reasonable
periodic increases in salary or benefits.
4.8. CHANGE OF STRUCTURE, ETC. The Borrower will not change its
corporate name or legal structure, nor will the Borrower change its fiscal year
or materially change its methods of financial reporting unless, in each
instance, prior written notice of such change is given to the Bank and prior to
such change the Borrower enters into amendments to this Agreement in
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foam and substance reasonably satisfactory to the Bank in order to preserve
unimpaired the rights of the Bank and the obligations of the Borrower hereunder.
4.9. HAZARDOUS WASTE. Except as provided below, the Borrower will not
dispose of or suffer or permit to exist any hazardous material or oil on any
site or vessel owned, occupied or operated by the Borrower or any Subsidiary of
the Borrower, nor shall the Borrower store (or permit any Subsidiary to store)
on any site or vessel owned, occupied or operated by the Borrower or any such
Subsidiary, or transport or arrange the transport of, any hazardous material. or
oil (the terms "hazardous material", "oil", "site" and "vessel", respectively,
being used herein with the meanings given those terms in Mass. Gen. Laws, Ch.
21E or any comparable terms in any comparable statute in effect in any other
relevant jurisdiction). The Borrower shall provide the Bank with written notice
of (i) the intended storage or transport of any hazardous material or oil by the
Borrower or any Subsidiary of the Borrower, (ii) any potential or known release
or threat of release of any hazardous material or oil at or from any site or
vessel owned, occupied or operated by the Borrower or any Subsidiary of the
Borrower, and (iii) any incurrence of any expense or loss by any government or
governmental authority in connection with the assessment, containment or removal
of any hazardous material or oil for which expense or loss the Borrower or any
Subsidiary of the Borrower may be liable. Notwithstanding the foregoing, the
Borrower and its Subsidiaries may use, store and transport, and need not notify
the Bank of the use, storage or transportation of, (x) oil in reasonable
quantities, as fuel for heating of their respective facilities or for vehicles
or machinery used in the ordinary course of their respective businesses and (y)
hazardous materials that are solvents, cleaning agents or other materials used
in the ordinary course of the respective business operations of the Borrower and
its Subsidiaries in reasonable quantities, as long as in any case the Borrower
or the Subsidiary concerned (as the case may be) has obtained and maintains in
effect any necessary governmental permits, licenses and approvals, complies with
all requirements of applicable federal, state and local law relating to such
use, storage or transportation, follows the protective and safety procedures
that a prudent businessperson conducting a business the same as or similar to
that of the Borrower or such Subsidiary (as the case may be) would follow, and
disposes of such materials (not consumed in the ordinary course) only through
licensed providers of hazardous waste removal services.
4.10. NO MARGIN STOCK. No proceeds of any Loan shall be used directly or
indirectly to purchase or carry any margin security.
4.11 NEGATIVE PLEDGES. The Borrower will not enter into (and will not
permit any of its Subsidiaries to enter into) any agreement, amendment or
arrangement (excluding this Agreement or any other Loan Document) prohibiting or
restricting (a) such Person from amending or otherwise modifying this Agreement
or any other Loan Document, (b) the creation or assumption of any Liens upon its
properties, revenues or assets, whether now owned or hereafter acquired or (c)
the ability of any such Person to make any payment or distribution, directly or
indirectly, to the Borrower.
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V. DEFAULT AND REMEDIES
5.1. EVENTS OF DEFAULT. The occurrence of any one of the following
events shall constitute an Event of Default hereunder:
(a) The Borrower shall (i) fail to make any payment of interest on
any Note within five (5) days of the date when due or (ii) fail to make any
payment of principal of any Note or any LC Draw Obligation on or before the date
when due; or
(b) Any representation or warranty of the Borrower contained herein
shall at any time prove to have been incorrect in any material respect when made
or any representation or warranty made by the Borrower in connection with any
Loan or Letter of Credit shall at any time prove to have been incorrect in any
material respect when made; or
(c) The Borrower shall default in the performance or observance of
any agreement or obligation under Sections 3.1, 3.6, 3.7, 3.8 and 3.9 or any
provision of Article IV; or
(d) The Borrower shall default in the performance of any other term,
covenant or agreement contained in this Agreement and such default shall
continue unremedied for 30 days after written notice thereof shall have been
given to the Borrower; or
(e) Any default on the part of the Borrower or any Subsidiary of the
Borrower shall exist, and shall remain unwaived or uncured beyond the expiration
of any applicable notice and/or grace period, under any other contract,
agreement or undertaking now existing or hereafter entered into with or for the
benefit of the Bank (or any affiliate of the Bank); or
(f) Any other Indebtedness of the Borrower or any Subsidiary of the
Borrower for borrowed money or representing the deferred purchase price of the
property in excess of $500,000 in aggregate principal amount or with respect to
any instrument evidencing, guaranteeing, securing or otherwise relating to any
such Indebtedness shall have been declared to be due and payable prior to its
stated maturity or shall not have been paid at the stated maturity thereof; or
(g) The Borrower shall be dissolved, or the Borrower or any
Subsidiary of the Borrower shall become insolvent or bankrupt or shall cease
paying its debts as they mature or shall make an assignment for the benefit of
creditors, or a trustee, receiver or liquidator shall be appointed for the
Borrower or any Subsidiary of the Borrower or for a substantial part of the
property of the Borrower or any such Subsidiary, or bankruptcy, reorganization,
arrangement, insolvency or similar proceedings shall be instituted by or against
the Borrower or any such Subsidiary under the laws of any jurisdiction (except
for an involuntary proceeding filed against the Borrower or any Subsidiary of
the Borrower which is dismissed within 90 days following the institution
thereof); or
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(h) Any execution or similar process shall be issued or levied
against any material part of the property of the Borrower or any Subsidiary and
such execution or similar process shall not be paid, stayed, released, vacated
or fully bonded within 10 days after its issue or levy; or
(i) Any final uninsured judgment in excess of $500,000 shall be
entered against the Borrower or any Subsidiary of the Borrower by any court of
competent jurisdiction and shall remain unpaid, unbonded or unstayed for a
period of 60 days; or
(j) The Borrower or any Subsidiary of the Borrower shall fail to
meet its minimum funding requirements under ERISA with respect to any employee
benefit plan (or other class of benefit which the PBGC has elected to insure) or
any such plan shall be the subject of termination proceedings (whether voluntary
or involuntary) and there shall result from such termination proceedings a
liability of the Borrower or any Subsidiary of the Borrower to the PBGC which,
in each case, in the reasonable opinion of the Bank may have a material adverse
effect upon the financial condition of the Borrower or any such Subsidiary; or
(k) Any Loan Document shall for any reason (other than due to
payment in full of all amounts evidenced thereby or due to discharge in writing
by the Bank) not remain in full force and effect; or
(1) Any Subsidiary of the Borrower shall cease to be a direct or
indirect wholly-owned Subsidiary.
5.2. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any Event of
Default, in addition to any other rights and remedies available to the Bank
hereunder or otherwise, the Bank may exercise any one or more of the following
rights and remedies (all of which shall be cumulative):
(a) Declare the entire unpaid principal amount of the Notes then
outstanding, all interest accrued and unpaid thereon, any LC Draw Obligations
and all other amounts payable under this Agreement, and all other Indebtedness
of the Borrower to the Bank, to be forthwith due and payable, whereupon the same
shall become forthwith due and payable, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by the Borrower.
(b) Terminate the arrangements for Revolving Loans and Letters of
Credit provided for by this Agreement.
(c) Exercise all rights and remedies hereunder, under the Notes and
under each and any other agreement with the Bank; and exercise all other rights
and remedies which the Bank may have under applicable law.
5.3. SET-OFF. Borrower hereby grants to Bank, a continuing lien,
security interest and
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right of setoff as security for all liabilities and obligations to Bank, whether
now existing or hereafter arising, upon and against all deposits, credits,
collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Bank or any entity under the control of FleetBoston
Financial Corporation and its successors and assigns or in transit to any of
them. At any time, without demand or notice (any such notice being expressly
waived by Borrower), Bank may setoff the same or any part thereof and apply the
same to any liability or obligation of Borrower even though unmatured and
regardless of the adequacy of any other collateral securing the Revolving Loans.
ANY AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH
RESPECT TO ANY OTHER COLLATERAL WHICH SECURES ANY OF THE OBLIGATIONS PRIOR TO
THE EXERCISE BY THE BANK OF ITS RIGHT OF SET-OFF UNDER THIS SECTION ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
5.4. LETTERS OF CREDIT. Without limitation of any other right or
remedy of the Bank,
(i) if an Event of Default shall have occurred and the Bank shall have
accelerated the Loans or
(ii) if this Agreement and/or the revolving financing arrangements described
herein shall have expired or shall have been earlier terminated by either the
Bank or the Borrower for any reason, the Borrower will forthwith deposit with
the Bank in cash a sum equal to 110% of the total of all then undrawn amounts of
all outstanding letters of credit issued by the Bank for the account of the
Borrower, such sum to be pledged to secure the Borrower's reimbursement
obligations.
VI. MISCELLANEOUS
6.1. COSTS AND EXPENSES. The Borrower agrees to pay, on demand, all
costs and expenses (including, without limitation, reasonable legal fees) of the
Bank in connection with the preparation, execution and delivery of this
Agreement, the Notes, any Letter of Credit Documents and all other instruments
and documents to be delivered in connection with any Loan and any amendments or
modifications of any of the foregoing, as well as the costs and expenses
(including, without limitation, the reasonable fees and expenses of legal
counsel) incurred by the Bank in connection with preserving, enforcing or
exercising, upon default, any rights or remedies under this Agreement, the
Notes, any Letter of Credit Documents and all other instruments and documents
delivered or to be delivered hereunder or in connection herewith, all whether or
not legal action is instituted. In addition, the Borrower shall be obligated to
pay any and all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this Agreement, the Notes, any
Letter of Credit Documents and all other instruments and documents to be
delivered in connection with any Obligation. Any fees, expenses or other charges
which the Bank is entitled to receive from the Borrower under this Section shall
bear interest from the date of any demand therefore until the date when paid at
a rate per annum equal to the sum of (i) four (4%) percent per annum PLUS (ii)
the Prime Rate (but in no event in excess of the maximum rate permitted by then
applicable law).
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6.2. OTHER AGREEMENTS. The provisions of this Agreement are not in
derogation or limitation of any obligations, liabilities or duties of the
Borrower under any of the other Loan Documents or any other agreement with or
for the benefit of the Bank. No inconsistency in default provisions between this
Agreement and any of the other Loan Documents or any such other agreement will
be deemed to create any additional grace period or otherwise derogate from the
express terms of each such default provision. Any inconsistencies between the
provisions of this Agreement and of any other Loan Document, including any Note,
shall be governed by reference to the provisions of this Agreement. No covenant,
agreement or obligation of the Borrower contained herein, nor any right or
remedy of the Bank contained herein, shall in any respect be limited by or be
deemed in limitation of any inconsistent or additional provisions contained in
any of the other Loan Documents or any such other agreement.
6.3. ADDRESSES FOR NOTICES, ETC. All notices, requests, demands and
other communications provided for hereunder shall be in writing and shall be
mailed or delivered to the applicable party at the address indicated below:
If to the Borrower:
Chase Corporation
26 Summer Street
Bridgewater, Massachusetts 02324-2626
Attention: Everett Chadwick, Jr., Treasurer and Chief Financial Officer
If to the Bank:
Fleet National Bank
Mail Code: MA DE 10007D
100 Federal Street
Boston, Massachusetts 02110
Attention: Mark D. Miller, Vice President
or, as to each of the foregoing, at such other address as shall be designated by
such Person in a written notice to the other party complying as to delivery with
the terms of this Section. All such notices, requests, demands and other
communications shall be deemed delivered on the earlier of (i) the date received
or (ii) the date of delivery, refusal or non-delivery indicated on the return
receipt if deposited in the United States mails, sent postage prepaid, certified
or registered mail, return receipt requested, addressed as aforesaid. If any
such notice, request, demand or other communication is hand-delivered, same
shall be effective upon receipted delivery.
6.4. BINDING EFFECT; ASSIGNMENT; TERMINATION.
(a) This Agreement shall be binding upon the Borrower and the Bank and
their successors and assigns and shall inure to the benefit of the Borrower and
the Bank and their respective permitted successors and assigns.
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(b) The Borrower may not assign this Agreement or any rights hereunder
without the express written consent of the Bank. The Bank may, in accordance
with applicable law, from time to time assign or grant participations in this
Agreement, the Loans and/or the Notes and/or any Letter of Credit. Without
limitation of the foregoing generality,
(i) The Bank may at any time pledge all or any portion of
its rights under the Loan Documents (including any portion of the
Revolving Note) to any of the 12 Federal Reserve Banks organized under
Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No such
pledge or the enforcement thereof shall release the Bank from its
obligations under any of the Loan Documents.
(ii) The Bank shall have the unrestricted right at any time
or from time to time, and without the consent of or notice to the
Borrower, to assign all or any portion of its rights and obligations
hereunder to one or more banks or other financial institutions (each, an
"Assignee"), and the Borrower agrees that at no cost to itself it shall
execute, or cause to be executed, such documents, including, without
limitation, amendments to any documents, instruments and agreements
executed in connection herewith, as the Bank shall reasonably deem
necessary to effect the foregoing. In addition, at the request of the
Bank and any such Assignee, the Borrower at no cost to itself shall
issue one or more new promissory notes, as applicable, to any such
Assignee and, if the Bank has retained any of its rights and obligations
hereunder following such assignment, to the Bank, which new promissory
notes shall be issued in replacement of, but not in discharge of, the
liability evidenced by the promissory note held by the Bank prior to
such assignment and shall reflect the amount of the respective
commitments and loans held by such Assignee and the Bank after giving
effect to such assignment. Upon the execution and delivery o f
appropriate assignment documentation, amendments and any other
documentation required by the Bank in connection with such assignment,
and the payment by the Assignee of the purchase price agreed to by the
Bank and such Assignee, such Assignee shall be a party to this Agreement
and shall have all of the rights and obligations of the Bank hereunder
(and under any and all other guaranties, documents, instruments and
agreements executed in connection herewith) to the extent that such
rights and obligations have been assigned by the Bank pursuant to the
assignment documentation between the Bank and such Assignee, and the
Bank shall be released from its obligations hereunder and thereunder to
a corresponding extent.
(iii) The Bank shall have the unrestricted right at any time
and from time to time, and without the consent of or notice to the
Borrower, to grant to one or more banks or other financial institutions
(each, a "Participant") participating interests in the Bank's obligation
to lend hereunder and/or any or all of the Loans held by the Bank
hereunder. In the event of any such grant by the Bank of a participating
interest to a Participant, whether or not upon notice to the Borrower,
the Bank shall remain responsible for the performance of its obligations
hereunder and the Borrower shall continue to deal solely and directly
with the Bank in connection with the Bank's rights and obligations
hereunder. The Bank may furnish any information concerning the Borrower
in its possession from time to time to prospective Assignees and
Participants;
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provided that the Bank shall require any such prospective Assignee or
Participant to agree in writing to maintain the confidentiality of such
information to the same extent as the Bank would be required to maintain
such confidentiality.
(c) The Borrower may terminate this Agreement and the financing
arrangements made herein by giving written notice of such termination to the
Bank; PROVIDED that no such termination will release or waive any of the Bank's
rights or remedies or any of the Borrower's obligations under this Agreement or
any of the other Loan Documents unless and until the Borrower has paid in full
the Loans and the LC Exposure Amount and all interest thereon and all fees and
charges payable in connection therewith.
6.5. CONSENT TO JURISDICTION. The Borrower irrevocably submits to the
non-exclusive jurisdiction of any Massachusetts court or any federal court
sitting within The Commonwealth of Massachusetts over any suit, action or
proceeding arising out of or relating to this Agreement and/or any Note and/or
any Letter of Credit. The Borrower irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any such suit, action or proceeding brought in such a court and any
claim that any such suit, action or proceeding has been brought in an
inconvenient forum. The Borrower agrees that final judgment in any such suit,
action or proceeding brought in such a court shall be enforced in any court of
proper jurisdiction by a suit upon such judgment, provided that service of
process in such action, suit or proceeding shall have been effected upon the
Borrower in one of the manners specified in the following paragraph of this
Section 6.5 or as otherwise permitted by law.
6.6. SEVERABILITY. In the event that any provision of this Agreement or
the application thereof to any Person, property or circumstances shall be held
to any extent to be invalid or unenforceable, the remainder of this Agreement,
and the application of such provision to Persons, properties or circumstances
other than those as to which it has been held invalid and unenforceable, shall
not be affected thereby, and each provision of this Agreement shall be valid and
enforced to the fullest extent permitted by law.
6.7. GOVERNING LAW. This Agreement, the Notes shall be governed by, and
construed and enforced in accordance with, the laws of The Commonwealth of
Massachusetts.
6.8. REPLACEMENT NOTE. Upon receipt of an affidavit of an officer of the
Bank as to the loss, theft, destruction or mutilation of any Note or of any
other Loan Document which is not of public record and, in the case of any such
mutilation, upon surrender and cancellation of such Note or other Loan Document,
the Borrower will issue, in lieu thereof, a replacement Note or other Loan
Document in the same principal amount (as to any Note) and in any event of like
tenor.
6.9. USURY. All agreements between the Borrower and the Bank are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the Notes or otherwise, shall the amount
paid or agreed to be paid to the Bank for the use or the forbearance of the
Indebtedness represented by the Notes exceed the maximum
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permissible under applicable law. In this regard, it is expressly agreed that it
is the intent of the Borrower and the Bank, in the execution, delivery and
acceptance of the Notes, to contract in strict compliance with the laws of The
Commonwealth of Massachusetts. If, under any circumstances whatsoever,
performance or fulfillment of any provision of any Note or any of the other Loan
Documents at the time such provision is to be performed or fulfilled shall
involve exceeding the limit of validity prescribed by applicable law, then the
obligation so to be performed or fulfilled shall be reduced automatically to the
limits of such validity, and if under any circumstances whatsoever the Bank
should ever receive as interest an amount which would exceed the highest lawful
rate, such amount which would be excessive interest shall be applied to the
reduction of the principal balance evidenced by such Note and not to the payment
of interest. The provisions of this 0.9 shall control every other provision of
this Agreement and of the Notes.
6.10. WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY MUTUALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE REVOLVING NOTE OR ANY OTHER LOAN DOCUMENTS OR OUT OF ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK
TO ENTER INTO THIS AGREEMENT AND TO MAKE LOANS AS CONTEMPLATED HEREIN.
6.11 INTEGRATION. This Agreement is intended by the parties as the
final, complete and exclusive statement of the transactions evidenced hereby.
All prior or contemporaneous promises, agreements and understandings, whether
oral or written, are deemed to be superceded by this Agreement, and no party is
relying on any promise, agreement or understanding not set forth in this
Agreement. This Agreement may not be amended or modified except by a written
instrument describing such amendment or modification executed by the Borrower
and the Bank.
VII. DEFINED TERMS
7.1. DEFINITIONS. In addition to terms defined elsewhere in this
Agreement, as used herein, the following terms have the following respective
meanings:
"Acquisition" - any acquisition of all or substantially all of the
assets or over 80% of the equity interests of any Person or any division
thereof.
"Affiliate" - Any Person which, directly or indirectly, controls or is
controlled by or is under common control with the Borrower; any officer or
director of the Borrower; ANY Person owning of record or beneficially, directly
or indirectly, 5% or more of any class of capital stock of the Borrower or 5% or
more of any class of capital stock or other equity interest having voting power
(under ordinary circumstances) of any of the other Persons described above; and
any member of the immediate family of any of the foregoing.
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"Alternate Base Rate" - The greater of (A) (i) the sum of one-half of
one percent (0.50%) per annum, PLUS (ii) the Federal Funds Effective Rate or (B)
the Prime Rate as in effect from time to time.
"Available Commitment" - The (a) Revolving Commitment, MINUS (b) the LC
Exposure Amount MINUS (c) the aggregate outstanding principal balance of the
Term Loans.
"Bank Certificate" - A certificate signed by an officer of the Bank
setting forth any additional amount required to be paid by the Borrower to the
Bank pursuant to Section 1.4, Section 1.7 or Section 1.8 of this Agreement,
which certificate shall be submitted by the Bank to the Borrower in connection
with each demand made at any time by the Bank upon the Borrower with respect to
any such additional amount, and each such certificate shall, save for manifest
error, constitute presumptive evidence of the additional amount required to be
paid by the Borrower to the Bank upon each demand. A claim by the Bank for all
or any part of any additional amount required to be paid by the Borrower may be
made before and/or after the end of the period to which such claim relates or
during which such claim has arisen and before and/or after any payment hereunder
to which such claim relates. Each Bank Certificate shall set forth in reasonable
detail the basis for and the calculation of the claim to which it relates.
"Business Day" - Any day which is not a Saturday, nor a Sunday nor
another day on which banks in Boston, Massachusetts are authorized or directed
to close; PROVIDED, however, that if the applicable provision relates to a
Eurodollar Loan, then the teini "Business Day" shall not include any day on
which dealings are not carried on in the London interbank market or on which
banks are not open for business in London.
"Capital Expenditures" - As to any Person for any period, the sum of all
amounts which would, in accordance with GAAP, be included as additions to
property, plant and equipment and other Capital Expenditures for such period,
including, without limitation, amounts with respect to capitalized leases.
"Capital Lease Obligations" - As to any Person, the obligations of such
Person or any of its Subsidiaries to pay rent or other amounts under any lease
of (or other arrangement conveying the right to use) real or personal property,
or a combination thereof, to the extent such obligations are required to be
classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP. For purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
"CERCLA" - The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601 ET SEQ., as amended by the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100
Stat. 1613.
"Collateral" - All property now or hereafter owned by the Borrower or in
which the Borrower now or hereafter has any interest which is described as
"Collateral" in the Security Agreement.
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"Debt Service" - For any period, the aggregate amount of principal and
premium, if any, and interest and fees paid or required to be paid during such
period in respect of all indebtedness for borrowed money of the Borrower and its
Subsidiaries.
"Default" - Any event or circumstance which, with the passage of time or
the giving of notice or both, could become an Event of Default.
"Earnings Before Interest and Taxes" - For any period, Net Income for
such period PLUS taxes in respect of income and profits paid or accrued by the
Borrower and its Subsidiaries during such period and Interest Expense to the
extent deducted in calculating Net Income for such period.
"Equity Interests" - any and all shares, interests, participations or
other equivalents (however designated) of capital stock, partnership interests,
member interests and any and all equivalent ownership interests in a Person, and
any and all warrants, rights or options to purchase any of the foregoing, other
than equity interests or warrants, right or options issued in connection with
the exercise by a present or former employee, officer or director under a stock
incentive plan, stock option plan or other equity-based compensation plan or
arrangement.
"ERISA" - The Employee Retirement Income Security Act of 1974, as
amended.
"Eurodollar Loan" - All or any portion of a Loan which bears interest at
a rate based on the Eurodollar Rate.
"Eurodollar Rate" - For any Interest Period with respect to a Eurodollar
Loan, the rate of interest equal to (a) the arithmetic mean of the rates per
annum for the Bank (rounded upwards to the nearest 1/16 of one percent) of the
rate at which the Bank's Eurodollar Lending Office is offered Dollar deposits
two Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and foreign currency and
exchange operations of such Eurodollar Lending Office are customarily conducted,
for the delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of the Eurodollar
Rate Loan of the Bank to which such Interest Period applies, divided by (b) a
number equal to 1.00 minus the Eurocurrency Reserve Rate.
"Eurodollar Rate Increment" - One and one-half percent (1.50%).
"Eurodollar Reserve Rate" - For any day with respect to a Eurodollar
Rate Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is defined in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically.
"Event of Default" - As defined in Section 5.1.
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"Expiration Date" - March 1, 2004, unless extended by the Bank which
extension may be given or withheld by the bank in its sole discretion.
"Federal Funds Effective Rate" -- For any day, a fluctuating interest
rate per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions received by
the Bank from three Federal funds brokers of recognized standing selected by the
Bank.
"Floating Rate" - As defined in Section 1.4.
"Floating Rate Loan" - All or any portion of any Revolving Loan which
bears interest at a rate calculated with reference to the Alternate Base Rate.
"GAAP" - generally accepted accounting principles in the United States
as in effect from time to time consistently applied, except that for purposes of
Section 7.1, GAAP shall be determined on the basis of such principles in effect
on the date hereof and consistent with those used in the preparation of the most
recent audited financial statements delivered pursuant to Section 4.1(b).
"Governmental Authority" - any nation or government, or any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory BODY, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization.
"Impositions" - All present and future taxes, levies, duties,
impositions, deductions, charges and withholdings applicable to the Bank with
respect to any Eurodollar Loan, excluding, however, any taxes imposed directly
on the Bank's income and any franchise taxes imposed on it by the jurisdiction
under the laws of which the Bank is organized or any political subdivision
thereof or where the Bank does business.
"Indebtedness" - All obligations of a Person, whether current or
long-term, senior or subordinated, which in accordance with GAAP would be
included as liabilities upon such Person's balance sheet at the date as of which
Indebtedness, is to be determined, and shall also include guaranties,
endorsements (other than for collection in the ordinary course of business) or
other arrangements whereby responsibility is assumed for the obligations of
others, whether by agreement to purchase or otherwise acquire the obligations or
others, including any agreement, contingent or otherwise, to furnish funds
through the purchase of goods, supplies or services for the purpose of payment
of the obligations of others.
"Interest Expense" - For any period, the aggregate amount of interest
paid or required to be paid during such period in respect of all indebtedness of
the Borrower and its Subsidiaries (including imputed interest on Capital Lease
Obligations) and amortized debt
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discount for such period.
"Interest Payment Date" - (a) As to any Floating Rate Loan, the first
Business Day of each month to occur while such Loan is outstanding and the final
maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest
Period of three months or less, the last day of such Interest Period, (c) as to
any Eurodollar Loan having an Interest Period longer than three months, each day
that is three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period and (d) as to any Loan,
the date of any repayment or prepayment made in respect thereof.
"Interest Period" - as to any Eurodollar Loan, (a) initially, the period
commencing on the borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan and ending one, two or three months thereafter, as
selected by the Borrower in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Bank not less than three
Business Days prior to the last day of the then current Interest Period with
respect thereto; provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following -
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day;
(ii) the Borrower may not select an Interest Period (A) under
the Revolving Commitment that would extend beyond the Expiration Date or
(B) with respect to any Term Loan, that would extend beyond the date
final payment is due on such Term Loan, as applicable;
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Interest Rate Protection Agreement" -- Any interest rate swap agreement
or other financial agreement or arrangement designed to protect the Borrower
against fluctuations in interest rate.
"LC Draw Obligation" - The Borrower's obligation to reimburse the Bank
on account of any drawing under any Letter of Credit as provided in Section
1.6(c).
-32-
<Page>
"LC Exposure Amount" - At any time, the sum of (i) the aggregate undrawn
stated amount of all Letters of Credit outstanding at such time, PLUS (ii) the
aggregate amount of all drawings under Letters of Credit for which the Bank
shall not have received reimbursement by the Borrower as provided in Section
1.6(c).
"Loan Documents" - Each of this Agreement, the Revolving Note, the Term
Notes and each other instrument, document or agreement evidencing, securing,
guaranteeing or relating in any way to any of the Loans, all whether now
existing or hereafter arising or entered into.
"Loans"- Collectively, the Revolving Loans and the Term Loans
"London" - The City of London in England.
"Material Adverse Effect" - a material adverse effect on (a) the
business, property, operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole, (b) the ability of any Company
to perform its obligations under the Loan Documents to which it is a party, or
(c) the validity or enforceability of this Agreement, the Notes, the Guarantee,
or, taken as a whole, the other Loan Documents, or the rights or remedies of the
Administrative Agent or the Lenders under this Agreement, the Note or, taken as
whole, the other Loan Documents.
"Net Income" (or "Net Loss") - The book net income (or book net loss, as
the case may be) of a Person for any period, after all taxes actually paid or
accrued and all expenses and other charges determined in accordance with
generally accepted accounting principles consistently applied.
"Notes"-Collectively, the Revolving Note and the Term Notes.
"Obligations" - All Indebtedness, covenants, agreements, liabilities and
obligations, now existing or hereafter arising, made by the Borrower with or for
the benefit of the Bank or owed by the Borrower to the Bank in any capacity.
"Operating Cash Flow" - For any period, Earnings Before Interest and
Taxes PLUS depreciation and amortization for such period, MINUS unfinanced
Capital Expenditures, dividends and deferred compensation paid or incurred
during such period.
"Original Agreement" - See the Recitals.
"PBGC" - The Pension Benefit Guaranty Corporation or any successor
thereto.
"Person" - An individual, corporation, partnership, limited partnership,
limited liability company, joint venture, trust or unincorporated organization,
or a government or any agency or political subdivision thereof.
-33-
<Page>
"Prime Rate" - That variable rate of interest per annum designated by
the Bank, from time to time, as being its prime rate, it being understood that
such rate is merely a reference rate and does not necessarily represent the
lowest or best rate being charged to any customer.
"Revolving Commitment" - $6,000,000 or such lesser amount as reduced in
accordance with this Agreement.
"Subsidiary" - Any corporation or other entity of which a Person and/or
any of its Subsidiaries, directly or indirectly, owns, or has the right to
control or direct the voting of, fifty (50%) percent or more of the outstanding
capital stock or other ownership interest having general voting power (under
ordinary circumstances).
"Synthetic Leases" - means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money Indebtedness for tax
purposes but is classified as an operating lease under GAAP.
"Tangible Net Worth" - An amount equal to the total assets of any Person
(excluding (i) the total intangible assets of such Person, (ii) any minority
interests in Subsidiaries and (iii) any assets representing amounts due from any
officer or employee of such Person or from any Subsidiary of such Person) minus
the total liabilities of such Person. Total intangible assets shall be deemed to
include, but shall not be limited to, the excess of cost over book value of
acquired businesses accounted for by the purchase method, formulae, trademarks,
trade names, patents, patent rights and deferred expenses (including, but not
limited to, unamortized debt discount and expense, organizational expense,
capitalized software costs and experimental and development expenses).
"Tangible Net Worth" - At the applicable date, the total assets of the
Borrower and its Subsidiaries MINUS (a) the sum of any amounts attributable to
(i) goodwill, (ii) intangible items such as unamortized debt discount and
expense, patents, trade and service marks and names, copyrights and research and
development expenses except prepaid expenses, (iii) all reserves not already
deducted from assets, (iv) any write-up in the book value of assets resulting
from any revaluation thereof subsequent to the date hereof, and (v) the value of
any minority interests in any companies, and (b) Total Liabilities of the
Borrower and its Subsidiaries.
"Term Loan C"- See the Original Agreement.
"Term Loan D"- See the Original Agreement.
"Term Loan E"- See the Original Agreement.
"Term Loans"- Collectively, the Term Loan C, the Term Loan D, the Term
Loan E and the Term Loan F.
-34-
<Page>
"Term Note C"- The Promissory Note evidencing the Term Loan C.
"Term Note D"- The Promissory Note evidencing the Term Loan D.
"Term Note E"- The Promissory Note evidencing the Term Loan E.
"Term Notes"- Collectively, the Term Note C, the Term Note D, the Term
Note E and the Term Note F.
"Total Liabilities" - The aggregate amount of liabilities of a Person
determined in accordance with GAAP.
Any defined term used in the plural preceded by the definite article
shall be taken to encompass all members of the relevant class. Any defined term
used in the singular preceded by "any" shall be taken to indicate any number of
the members of the relevant class. All calculations contemplated by financial
terms used with respect to the Borrower and its Subsidiaries shall be made on a
consolidated basis, in accordance with GAAP and any other financial definitions
not otherwise defined herein shall have the meanings given to them under GAAP.
** THE NEXT PAGE IS THE SIGNATURE PAGE **
-35-
<Page>
This Agreement is executed, as an instrument under seal, as of the day
and year first above written.
Very truly yours,
CHASE CORPORATION
By: /s/ Everett Chadwick, Treasurer & CFO
-------------------------------------
Accepted and agreed:
FLEET NATIONAL
BANK
By: Pauline J. Mozzone
------------------
Title: Vice President
--------------
<Page>
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT (the "AMENDMENT") is made as of December 13, 2001 by and
between CHASE CORPORATION (the "BORROWER"); and FLEET NATIONAL (the "Bank").
RECITALS
A. The Bank and the Borrower entered into an Amended and Restated
Loan Agreement dated as of October 31, 2001 (the "LOAN AGREEMENT"), providing
for revolving loans by the Bank to the Borrower and for various term loans by
the Bank to the Borrower. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Loan Agreement.
B. The Borrower desires to obtain an additional $1,400,000 in term
loan financing from the Bank.
C. Subject to certain terms and conditions, the Bank is willing to
agree to the same, all as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. AMENDMENTS TO LOAN AGREEMENT.
The Loan Agreement is hereby amended as follows:
(A) DEFINITIONS. Section 7.1 of the Loan Agreement is amended by
amending or adding the following definitions thereto as set forth below:
"Term Loan G" - The $1,400,000 loan made by the Bank to the Borrower On
December 13, 2001, as evidenced by the Term Note G.
"Term Loans" - Collectively, the Term Loan C, the Term Loan D, the Term
Loan E, the Term Loan F and the Term Loan G.
"Term Note G" - That certain Term Promissory Note dated December 13,
2001 evidencing in the principal amount of $ 1,400,000 evidencing the Term Loan
G.
(B) SECTION 14. The following sentence is hereby inserted between
the second and third sentences of Section 1.4.
"On December 13, 2001, the Bank will make Term Loan G to the
Borrower in the amount of $1,400,000."
<Page>
(C) SECTION 1.5. A new Subsection (e) is added to Section 1.5 as
follows:
"(e) The principal balance of Term Loan G shall be repaid in 28
equal quarterly installments of $50,000, on each March 1, June
1, September 1 and December 1 of each year, commencing on March
1, 2002, until paid in full in accordance with Term Note G."
(D) SECTION 1.14. The following sentence is hereby inserted at the
end of Section 1.14(a):
"The proceeds of Term Loan G will be used by the Borrower
reimburse itself for the purchase price of real property and
improvements at 70 Pleasant Street, West Bridgewater, MA."
2. NO FURTHER AMENDMENTS.
Except as specifically amended hereby, the Loan Agreement shall remain
otherwise unmodified and in full force and effect and is hereby ratified and
affirmed in all respects.
3. CERTAIN REPRESENTATIONS OF THE BORROWER.
As a material inducement to the Bank to enter into this Amendment, the
Borrower represents and warrants to the Bank, after giving effect to this
Amendment, as follows:
(a) The execution and delivery of this Amendment and the Term Note G
have been duly authorized by all requisite corporate action on the part of the
Borrower and will not violate any provision of law, any order, judgment or
decree of any court or other agency of government, or the articles or bylaws of
the Borrower or any indenture, agreement or other instrument to which the
Borrower is bound, or be in conflict with, or result in a breach of, or
constitute (with due notice or lapse of time or both) a default under, or result
in the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of the Borrower pursuant to, any
such indenture, agreement or instrument.
(b) The representations and warranties contained in the Loan
Agreement are true and correct in all material respects on and as of the date of
this Amendment as though made at and as of such date (except to the extent that
such representations and warranties expressly relate to an earlier date or
except to the extent variations there from have been permitted under the terms
of the Loan Agreement or otherwise in writing by the Bank). No material adverse
change has occurred in the assets, liabilities, financial condition, business or
prospects of the Borrower from that disclosed in the annual certified financial
statements most recently furnished to the Bank. No event of default or
]condition or event that, but for the requirement that time
-2-
<Page>
elapse or notice be given or both, would constitute an event of default, has
occurred or is continuing.
(c) This Amendment and the Term Note G constitute the legal, valid
and binding obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the rights and remedies of
creditors generally or the application of principles of equity, whether in any
action at law or proceeding in equity, and subject to the availability of the
remedy of specific performance or of any other equitable remedy or relief to
enforce any right thereunder.
4. CONDITIONS.
The willingness of the Bank to agree to the foregoing and to make
further loans or issue further letters of credit under the Loan Agreement is
subject to the following conditions:
(a) The Borrower shall have executed and delivered to the Bank (or
shall have caused to be executed and delivered to the Bank by the appropriate
persons) the following:
(i) This Amendment and the Term Note G;
(ii) True and complete copies of any required stockholders'
and/or directors' consents or resolutions, authorizing the execution,
delivery and performance of this Amendment and the Term Note G,
certified by the secretary or clerk of the Borrower; and
(iii) Such other supporting documents and certificates as the
Bank or its counsel may reasonably request.
(b) All legal matters incident to the transactions contemplated
hereby shall be satisfactory to counsel for the Bank.
5. MISCELLANEOUS.
(a) This Amendment shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
(b) This Amendment may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate counterparts
hereof, all of which counterparts shall together constitute one and the same
agreement.
-3-
<Page>
IN WITNESS WHEREOF, the Bank and the Borrower have caused this Amendment
to be duly executed as a sealed instrument by their duly authorized
representatives, all as of the day and year first above written.
CHASE CORPORATION
By: /s/ Everett Chadwick
--------------------
Title: Treasurer
FLEET NATIONAL BANK
By: /s/ Pauline Mozzone
-------------------
Title: Vice President
-4-
<Page>
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT (the "AMENDMENT") is made as of June 13, 2002 by and
between CHASE CORPORATION (the "BORROWER"); and FLEET NATIONAL BANK (the
"Bank").
RECITALS
A. The Bank and the Borrower entered into an Amended and Restated
Loan Agreement dated as of October 31, 2001, as amended (the "LOAN AGREEMENT"),
providing for revolving loans by the Bank to the Borrower and for various term
loans by the Bank to the Borrower. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Loan Agreement.
B. The Borrower has requested that the Bank (i) as an accommodation
to the Borrower, grant waivers of Events of Default which have occurred because
of the failure of the Borrower to comply with its obligations under Section
3.8(c) of the Loan Agreement for the fiscal periods ending November 30, 2001 and
February 28, 2002 and (ii) make certain other amendments to the Loan Agreement
set forth below.
C. Subject to certain terms and conditions, the Bank is willing to
agree to the same, all as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. WAIVER. In accordance with the Borrower's request, the Bank hereby
waives (A) the Events of Default arising from (1) the failure of the Borrower to
comply with its obligations under Section 3.8(c) of the Loan Agreement for the
fiscal period ended November 30, 2001 and (2) the failure of the Borrower to
comply with its obligation under Section 3.8(c) of the Loan Agreement for the
fiscal period ended February 28, 2002 and (B) any Events of Default under any
other Loan Documents which would have arisen but for such waivers, as a result
of the cross-default provisions contained therein.
The waivers granted by the Bank in this paragraph I are limited to the
Events of Default described above, and shall not be construed to constitute
continuing waivers or waivers of any other Events of Default under the Loan
Agreement or any other Loan Documents. This paragraph 1 shall constitute the
entire agreement between the Borrower and the Bank regarding such waivers, and
shall supercede any prior agreement or understanding, written or oral, between
the Bank and Borrower related to such waivers.
<Page>
2. AMENDMENTS TO LOAN AGREEMENT.
The Loan Agreement is hereby amended as follows:
(A) COMMITMENT FEE. Effective as of June 1, 2002, the following
Section 1.17 is hereby added to the Loan Agreement:
1.17 COMMITMENT FEE. The Borrower will also pay to the Bank
commitment fees ("Commitment Fees") with respect to the within
arrangements- for Revolving Loans, on the first day of each
fiscal quarter (commencing on June 1, 2002), as long as such
revolving credit arrangements are in effect and on the
Expiration Date or date of earlier termination of such revolving
credit arrangements. Such Commitment Fees will be payable, based
on such daily average unused portion of the Revolving
Commitment, at a rate per annum equal to 0.25%, appropriately
prorated for any period of less than a calendar quarter. As used
herein, the "unused portion of the Revolving Commitment", as
determined at any time, means that amount by which the Revolving
Commitment exceeds the sum of (x) the then outstanding aggregate
principal amount of the Revolving Loans, PLUS (y) the LC
Exposure Amount. The fees described in this Section are in
addition to any balances and fees required by the Bank or any of
its affiliates in connection with any other services now or
hereafter made available to the Borrower.
(B) DEBT SERVICE COVERAGE:
(i) Section 3.8(a) of the Loan Agreement is hereby amended in its
entirety as follows:
(a) The Borrower shall maintain for each 12 month period ending
on February 28, May 31, August 31 and November 30 of each fiscal
year, on a rolling 12-month basis, a ratio of Earnings Before
Interest and Taxes to Interest Expense of at least 3.00:1.00.
(ii) Effective as of May 23, 2002, Section 3.8(c) of the Loan
Agreement is hereby amended in its entirety as follows:
(c) (i) The Borrower will not permit the ratio of
Operating Cash Flow to Debt Service as of each fiscal quarter
end with respect to the fiscal quarter ending on such date to be
less than the ratio set forth opposite such fiscal quarter end
date in the table below:
<Page>
<Table>
<Caption>
Fiscal Quarter Ending Minimum Ratio
----------------------------------------------------------------
May 31, 2002 1.20:1.00
August 31, 2002, November 30, 1.50:1:00
2002, May 31, 2003, August 31, 2003,
November 30, 2003, May 31, 2004,
August 31, 2004, November 30,
2004, May 31, 2005, August, 31,
2005, November 30, 2005, May 31,
2006, August 31, 2006, November
30, 2006, May 31, 2007, August
31, 2007, November 30, 2007, May
31, 2008, August 31, 2008 and
November 30, 2008
</Table>
(ii) The Borrower will not permit the ratio of Operating Cash
Flow to Debt Service as of each fiscal quarter end with respect
to the 12-month period ending on such date to be less than the
ratio set forth opposite such fiscal quarter end date in the
table below:
<Table>
<Caption>
12-Month Period Ending Minimum Ratio
----------------------------------------------------------------
February 28, 2003, February 28, 2004, 1.50:1.00
February 28, 2005, February 28, 2006,
February 28, 2007 and February 28, 2008
</Table>
3. NO FURTHER AMENDMENTS.
Except as specifically amended hereby, the Loan Agreement shall remain
otherwise unmodified and in full force and effect and is hereby ratified and
affirmed in all respects.
4. CERTAIN REPRESENTATIONS OF THE BORROWER.
As a material inducement to the Bank to enter into this Amendment, the
Borrower represents and warrants to the Bank, after giving effect to this
Amendment, as follows:
(A) The execution and delivery of this Amendment has been duly
authorized by all requisite corporate action on the part of the Borrower and
will not violate any provision of law, any order, judgment or decree of any
court or other agency of government, or the articles or bylaws of the Borrower
or any indenture, agreement or other instrument to which the Borrower is bound,
or be in conflict with, or result in a breach of, or constitute (with due notice
or lapse of time or both) a default under, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the property or assets of the Borrower pursuant to, any such indenture,
agreement or instrument.
<Page>
(B) The representations and warranties contained in the Loan
Agreement are true and correct in all material respects on and as of the date of
this Amendment as though made at and as of such date (except to the extent that
such representations and warranties expressly relate to an earlier date or
except to the extent variations therefrom have been permitted under the terms of
the Loan Agreement or otherwise in writing by the Bank). No material adverse
change has occurred in the assets, liabilities, financial condition, business or
prospects of the Borrower from that disclosed in the annual certified financial
statements most recently furnished to the Bank. No event of default or condition
or event that, but for the requirement that time elapse or notice be given or
both, would constitute an event of default, has occurred or is continuing.
(C) This Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its respective terms, subject to bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting the rights and remedies of creditors
generally or the application of principles of equity, whether in any action at
law or proceeding in equity, and subject to the availability of the remedy of
specific performance or of any other equitable remedy or relief to enforce any
right thereunder.
5. CONDITIONS.
The willingness of the Bank to agree to the foregoing and to make
further loans or issue further letters of credit under the Loan Agreement is
subject to the following conditions:
(A) The Borrower shall have executed and delivered this Amendment to
the Bank.
(B) All legal matters incident to the transactions contemplated
hereby shall be satisfactory to counsel for the Bank.
6. MISCELLANEOUS
(A) This Amendment shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
(B) This Amendment may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate counterparts
hereof, all of which counterparts shall together constitute one and the same
agreement.
<Page>
IN WITNESS WHEREOF, the Bank and the Borrower have caused this Amendment
to be duly executed as a sealed instrument by their duly authorized
representatives, all as of the day and year first above written.
CHASE CORPORATION
By: /s/ Everett Chadwick
--------------------
Title: Treasurer
FLEET NATIONAL BANK
By: /s/ Mark D. Miller
------------------
Title: Vice President
<Page>
THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT (the "AMENDMENT") is made as of February 10, 2003 by and
between CHASE CORPORATION (the "BORROWER"); and FLEET NATIONAL (the "BANK").
RECITALS
A. The Bank and the Borrower entered into a First Amended and
Restated Loan Agreement dated as of October 31, 2001, as amended (the "LOAN
AGREEMENT"), providing for revolving loans by the Bank to the Borrower and for
various term loans by the Bank to the Borrower. Capitalized terms used herein
without definition shall have the meanings assigned to them in the Loan
Agreement.
B. The Borrower desires to (i) extend the Expiration Date of the
Revolving Commitment, (ii) obtain an additional $4,000,000 in new term loan
financing from the Bank and (iii) make certain other amendments to the Loan
Agreement set forth below.
C. Subject to certain terms and conditions, the Bank is willing to
agree to the same, all as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. AMENDMENTS TO LOAN AGREEMENT.
The Loan Agreement is hereby amended as follows:
(A) DEFINITIONS. Section 7.1 of the Loan Agreement is amended by
amending or adding the following definitions thereto as set forth below:
"Facile Acquisition" - The acquisition by the Borrower, directly or
though a wholly-owned Subsidiary, of certain assets of Facile, Inc., through a
secured party sale.
"Term Loan H" - The $4,000,000 loan made by the Bank to the Borrower on
February 10, 2003, as evidenced by the Term Note H.
"Term Loans" - Collectively, the Term Loan E, the Term Loan F, the Term
Loan G and the Term Loan H.
"Term Note H" - That certain Term Promissory Note dated February 10,
2003 evidencing in the principal amount of $4,000,000 evidencing the Term Loan
H.
<Page>
(B) SECTION 1.4. The following sentence is hereby inserted between
the third and fourth sentences of Section 1.4.
"On February 10, 2003, the Bank will make Term Loan H to the
Borrower in the amount of $4,000,000."
(C) SECTION 1.5. A new Subsection (f) is added to Section 1.5 as
follows:
"(e) The principal balance of Term Loan H shall be repaid in 19
equal quarterly installments of $200,000, commencing on June 1,
2003 and continuing thereafter on each September 1, December 1,
March 1 and June 1 of each year, with a 20th and final payment
in full due on February 10, 2008 in accordance with Term Note
H."
(D) SECTION 1.14. The following sentence is hereby inserted at the
end of Section 1.14(a):
"The proceeds of Term Loan H will be used by the Borrower to
pay, in part, the purchase price of the Facile Acquisition,"
(E) SECTION 3.8. Section 3.8 of the Loan Agreement is hereby amended
in its entirety as follows:
"3.8. DEBT SERVICE COVERAGE RATIOS.
(a) The Borrower will not permit the ratio of Operating Cash Flow to
Debt Service as of each fiscal quarter ending August 31, November 30 and
May 31 of each fiscal year with respect to the fiscal quarter ending on
such date to be less than 1.50:1.00.
(b) The Borrower will not permit the ratio of Operating Cash Flow to
Debt Service as of each fiscal quarter end in the table below with
respect to the 12-month period ending on such date to be less than the
ratio set forth opposite such fiscal quarter end date in the table
below:
<Table>
<Caption>
12-Month Period Ending Minimum Ratio
--------------------------------------------------------------
February 28, 2003, February 28, 2004, 1.25:1.00"
February 28, 2005, February 28, 2006,
February 28, 2007 and February 28, 2008
</Table>
2. NO FURTHER AMENDMENTS.
Except as specifically amended hereby, the Loan Agreement shall remain
otherwise unmodified and in full force and effect and is hereby ratified and
affirmed in all respects.
<Page>
3. CERTAIN REPRESENTATIONS OF THE BORROWER.
As a material inducement to the Bank to enter into this Amendment, the
Borrower represents and warrants to the Bank, after giving effect to this
Amendment, as follows:
(a) The execution and delivery of this Amendment and the Term Note H
have been duly authorized by all requisite corporate action on the part of the
Borrower and will not violate any provision of law, any order, judgment or
decree of any court or other agency of government, or the articles or bylaws of
the Borrower or any indenture, agreement or other instrument to which the
Borrower is bound, or be in conflict with, or result in a breach of, or
constitute (with due notice or lapse of time or both) a default under, or result
in the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of the Borrower pursuant to, any
such indenture, agreement or instrument.
(b) The representations and warranties contained in the Loan
Agreement are true and correct in all material respects on and as of the date of
this Amendment as though made at and as of such date (except to the extent that
such representations and warranties expressly relate to an earlier date or
except to the extent variations therefrom have been permitted under the terms of
the Loan Agreement or otherwise in writing by the Bank). No material adverse
change has occurred in the assets, liabilities, financial condition, business or
prospects of the Borrower from that disclosed in the annual certified financial
statements most recently furnished to the Bank. No event of default or condition
or event that, but for the requirement that time elapse or notice be given or
both, would constitute an event of default, has occurred or is continuing.
(c) This Amendment and the Term Note H constitute the legal, valid
and binding obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the rights and remedies of
creditors generally or the application of principles of equity, whether in any
action at law or proceeding in equity, and subject to the availability of the
remedy of specific performance or of any other equitable remedy or relief to
enforce any right thereunder.
4. CONDITIONS.
The willingness of the Bank to agree to the foregoing and to make
further loans or issue further letters of credit under the Loan Agreement is
subject to the following conditions:
(a) The Borrower shall have executed and delivered to the Bank (or
shall have caused to be executed and delivered to the Bank by the appropriate
persons) the following:
(i) This Amendment and the Term Note H;
<Page>
(ii) True and complete copies of any required directors'
consents or resolutions, authorizing the execution, delivery and
performance of this Amendment and the Term Note H, certified by the
secretary or clerk of the Borrower; and
(iii) Such other supporting documents and certificates as the
Bank or its counsel may reasonably request.
(b) All legal matters incident to the transactions contemplated
hereby shall be satisfactory to counsel for the Bank.
5. MISCELLANEOUS.
(a) This Amendment shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
(b) This Amendment may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate counterparts
hereof, all of which counterparts shall together constitute one and the same
agreement.
**THE BALANCE OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY**
<Page>
IN WITNESS WHEREOF, the Bank and the Borrower have caused this Amendment
to be duly executed as a sealed instrument by their duly authorized
representatives, all as of the day and year first above written.
CHASE CORPORATION
By: /s/ Everett Chadwick
--------------------
Title: V.P. Finance & Treasurer
FLEET NATIONAL BANK
By: /s/ Mark D. Miller
------------------
Title: Vice President
<Page>
FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT (the "AMENDMENT") is made as of February 28, 2003 by and
between CHASE CORPORATION (the "BORROWER"); and FLEET NATIONAL (the "Bank").
RECITALS
A. The Bank and the Borrower entered into a First Amended and
Restated Loan Agreement dated as of October 31, 2001, as amended (the "LOAN
AGREEMENT"), providing for revolving loans by the Bank to the Borrower and for
various term loans by the Bank to the Borrower. Capitalized terms used herein
without definition shall have the meanings assigned to them in the Loan
Agreement.
B. The Borrower desires to extend the Expiration Date of the
Revolving Commitment.
C. Subject to certain terms and conditions, the Bank is willing to
agree to the same, all as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. AMENDMENT TO LOAN AGREEMENT. Section 7.1 of the Loan Agreement
is amended by amending the definition of "Expiration Date" as set forth below:
"Expiration Date" - March 1, 2006.
2. NO FURTHER AMENDMENTS.
Except as specifically amended hereby, the Loan Agreement shall remain
otherwise unmodified and in full force and effect and is hereby ratified and
affirmed in all respects.
3. CERTAIN REPRESENTATIONS OF THE BORROWER.
As a material inducement to the Bank to enter into this Amendment, the
Borrower represents and warrants to the Bank, after giving effect to this
Amendment, as follows:
(a) The execution and delivery of this Amendment has been duly
authorized by all requisite corporate action on the part of the Borrower and
will not violate any provision of law, any order, judgment or decree of any
court or other agency of government, or the articles or bylaws of the Borrower
or any indenture, agreement or other instrument to which the Borrower is bound,
or be in conflict with, or result in a breach of, or constitute (with due notice
or lapse of time or both) a default under, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the property or assets of the Borrower pursuant to, any such indenture,
agreement or instrument.
<Page>
(b) The representations and warranties contained in the Loan Agreement
are true and correct in all material respects on and as of the date of this
Amendment as though made at and as of such date (except to the extent that such
representations and warranties expressly relate to an earlier date or except to
the extent variations therefrom have been permitted under the terms of the Loan
Agreement or otherwise in writing by the Bank). No material adverse change has
occurred in the assets, liabilities, financial condition, business or prospects
of the Borrower from that disclosed in the annual certified financial statements
most recently furnished to the Bank. No event of default or condition or event
that, but for the requirement that time elapse or notice be given or both, would
constitute an event of default, has occurred or is continuing.
(c) This Amendment constitutes the legal, valid and binding obligations
of the Borrower, enforceable against the Borrower in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the rights and remedies of creditors generally or the application of
principles of equity, whether in any action at law or proceeding in equity, and
subject to the availability of the remedy of specific performance or of any
other equitable remedy or relief to enforce any right thereunder.
4. CONDITIONS.
The willingness of the Bank to agree to the foregoing and to make
further loans or issue further letters of credit under the Loan Agreement is
subject to the following conditions:
(a) The Borrower shall have executed and delivered to the Bank (or
shall have caused to be executed and delivered to the Bank by the appropriate
persons) the following:
(i) This Amendment;
(ii) A Guarantee Agreement from the Borrower's wholly-owned
Subsidiary Chase Facile, Inc.; and
(iii) Such other supporting documents and certificates as the
Bank or its counsel may reasonably request.
(b) All legal matters incident to the transactions contemplated
hereby shall be satisfactory to counsel for the Bank,
5. MISCELLANEOUS.
(a) This Amendment shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
(b) This Amendment may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate counterparts
hereof, all of
<Page>
which counterparts shall together constitute one and the same agreement.
**THE BALANCE OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY**
<Page>
IN WITNESS WHEREOF, the Bank and the Borrower have caused this Amendment
to be duly executed as a sealed instrument by their duly authorized
representatives, all as of the day and year first above written.
CHASE CORPORATION
By: /s/ Everett Chadwick
--------------------
Title: Treasurer
FLEET NATIONAL BANK
By: /s/ Christopher Busconi
-----------------------
Title: Vice President
<Page>
FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT (the "AMENDMENT") is made as of December 16 , 2003 by and
between CHASE CORPORATION (the "BORROWER"); and FLEET NATIONAL (the "Bank").
RECITALS
A. The Bank and the Borrower entered into a First Amended and
Restated Loan Agreement dated as of October 31, 2001, as amended (the "LOAN
AGREEMENT"), providing for revolving loans by the Bank to the Borrower and for
various term loans by the Bank to the Borrower. Capitalized terms used herein
without definition shall have the meanings assigned to them in the Loan
Agreement.
B. The Borrower desires to increase the Revolving Commitment.
C. Subject to certain terms and conditions, the Bank is willing to
agree to the same, all as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. AMENDMENT TO LOAN AGREEMENT. Section 7.1 of the Loan Agreement
is amended by amending the definition of "Revolving Commitment" as set forth
below:
"Revolving Commitment" - $7,000,000.
2. NO FURTHER AMENDMENTS.
Except as specifically amended hereby, the Loan Agreement shall remain
otherwise unmodified and in full force and effect and is hereby ratified and
affirmed in all respects.
3. CERTAIN REPRESENTATIONS OF THE BORROWER.
As a material inducement to the Bank to enter into this Amendment, the
Borrower represents and warrants to the Bank, after giving effect to this
Amendment, as follows:
(a) The execution and delivery of this Amendment has been duly
authorized by all requisite corporate action on the part of the Borrower and
will not violate any provision of law, any order, judgment or decree of any
court or other agency of government, or the articles or bylaws of the Borrower
or any indenture, agreement or other instrument to which the Borrower is bound,
or be in conflict with, or result in a breach of, or constitute (with due notice
or lapse of time or both) a default under, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the property or assets of the Borrower pursuant to, any such indenture,
agreement or instrument.
<Page>
(b) The representations and warranties contained in the Loan Agreement
are true and correct in all material respects on and as of the date of this
Amendment as though made at and as of such date (except to the extent that such
representations and warranties expressly relate to an earlier date or except to
the extent variations therefrom have been permitted under the tent's of the Loan
Agreement or otherwise in writing by the Bank). No material adverse change has
occurred in the assets, liabilities, financial condition, business or prospects
of the Borrower from that disclosed in the annual certified financial statements
most recently furnished to the Bank. No event of default or condition or event
that, but for the requirement that time elapse or notice be given or both, would
constitute an event of default, has occurred or is continuing.
(c) This Amendment constitutes the legal, valid and binding obligations
of the Borrower, enforceable against the Borrower in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the rights and remedies of creditors generally or the application of
principles of equity, whether in any action at law or proceeding in equity, and
subject to the availability of the remedy of specific performance or of any
other equitable remedy or relief to enforce any right thereunder.
4. CONDITIONS.
The willingness of the Bank to agree to the foregoing is subject to the
following conditions:
(a) The Borrower shall have executed and delivered to the Bank (or
shall have caused to be executed and delivered to the Bank by the appropriate
persons) the following:
(i) This Amendment;
(ii) An amendment to the Amended and Restated Revolving
Credit Note evidencing the increased Revolving Commitment; and
(iii) Such other supporting documents and certificates as the
Bank or its counsel may reasonably request.
(b) All legal matters incident to the transactions contemplated
hereby shall be satisfactory to counsel for the Bank.
5. MISCELLANEOUS.
(a) This Amendment shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
(b) This Amendment may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate counterparts
hereof, all of which counterparts shall together constitute one and the same
agreement.
2
<Page>
IN WITNESS WHEREOF, the Bank and the Borrower have caused this Amendment
to be duly executed as a sealed instrument by their duly authorized
representatives, all as of the day and year first above written.
CHASE CORPORATION
By: /s/ Everett Chadwick
--------------------
Title: Treasurer
FLEET NATIONAL BANK
By: /s/ Gary A. Pirri
-----------------
Title: Senior Vice President
<Page>
SIXTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT (the "AMENDMENT") is made as of December, 23, 2003 by and
between CHASE CORPORATION (the "BORROWER"); and FLEET NATIONAL (the "Bank").
RECITALS
A. The Bank and the Borrower entered into a First Amended and
Restated Loan Agreement dated as of October 31, 2001, as amended (the "LOAN
AGREEMENT"), providing for revolving loans by the Bank to the Borrower and for
various term loans by the Bank to the Borrower. Capitalized terms used herein
without definition shall have the meanings assigned to them in the Loan
Agreement.
B. The Borrower desires to obtain an additional $2,400,000 in new
term loan financing from the Bank.
C. Subject to certain terms and conditions, the Bank is willing to
agree to the same, all as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. AMENDMENTS TO LOAN AGREEMENT.
The Loan Agreement is hereby amended as follows:
(A) DEFINITIONS. Section 7.1 of the Loan Agreement is amended by
amending or adding the following definitions thereto as set forth below:
"Term Loan I" - The $2,400,000 loan made by the Bank to the Borrower on
December 23, 2003, as evidenced by the Term Note I.
"Term Loans" - Collectively, the Term Loan E, the Term Loan F, the Term
Loan G, the Term Loan H and the Term Loan I.
"Term Note I" - That certain Term Promissory Note dated December 23 ,
2003 evidencing in the principal amount of $2,400,000 evidencing the Term Loan
I.
(B) SECTION 1.4. The following sentence is hereby inserted between
the fourth and fifth sentences of Section 1.4.
"On December 23, 2003, the Bank will make Term Loan Ito the
Borrower in the amount of $2,400,000."
<Page>
(C) SECTION 1.5. A new Subsection (g) is added to Section 1,5 as
follows:
"(e) The principal balance of Term Loan I shall be repaid in 15
equal quarterly installments of $ 150,000, commencing on March
1, 2004 and continuing thereafter on each June 1, September 1,
December 1 and March 1 of each year, with a 16'" and final
payment in full due on December 1, 2007 in an amount equal to
the then outstanding principal balance of Term Note I."
(D) SECTION 1.14. The following sentence is hereby inserted at the
end of Section 1.14(a):
"The proceeds of Term Loan I will be used by the Borrower for
general corporate purposes."
2. NO FURTHER AMENDMENTS.
Except as specifically amended hereby, the Loan Agreement shall remain
otherwise unmodified and in full force and effect and is hereby ratified and
affirmed in all respects.
3. CERTAIN REPRESENTATIONS OF THE BORROWER.
As a material inducement to the Bank to enter into this Amendment, the
Borrower represents and warrants to the Bank, after giving effect to this
Amendment, as follows:
(a) The execution and delivery of this Amendment and the Term Note 1
have been duly authorized by all requisite corporate action on the part of the
Borrower and will not violate any provision of law, any order, judgment or
decree of any court or other agency of government, or the articles or bylaws of
the Borrower or any indenture, agreement or other instrument to which the
Borrower is bound, or be in conflict with, or result in a breach of, or
constitute (with due notice or lapse of time or both) a default under, or result
in the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of the Borrower pursuant to, any
such indenture, agreement or instrument.
(b) The representations and warranties contained in the Loan
Agreement are true and correct in all material respects on and as of the date of
this Amendment as though made at and as of such date (except to the extent that
such representations and warranties expressly relate to an earlier date or
except to the extent variations therefrom have been permitted under the terms of
the Loan Agreement or otherwise in writing by the Bank). No material adverse
change has occurred in the assets, liabilities, financial condition, business or
prospects of the Borrower from that disclosed in the annual certified financial
statements most recently furnished to the Bank. No event of default or condition
or event that, but for the requirement that time elapse or notice be given or
both, would constitute an event of default, has occurred or is continuing.
-2-
<Page>
(c) This Amendment and the Term Note I constitute the legal, valid
and binding obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the rights and remedies of
creditors generally or the application of principles of equity, whether in any
action at law or proceeding in equity, and subject to the availability of the
remedy of specific performance or of any other equitable remedy or relief to
enforce any right thereunder.
4. CONDITIONS.
The willingness of the Bank to agree to the foregoing and to make
further loans or issue further letters of credit under the Loan Agreement is
subject to the following conditions:
(a) The Borrower shall have executed and delivered to the Bank (or
shall have caused to be executed and delivered to the Bank by the appropriate
persons) the following:
(i) This Amendment and the Term Note I; and
(ii) Such other supporting documents and certificates as the
Bank or its counsel may reasonably request.
(b) All legal matters incident to the transactions contemplated
hereby shall be satisfactory to counsel for the Bank.
5. MISCELLANEOUS.
(a) This Amendment shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
(b) This Amendment may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate counterparts
hereof, all of which counterparts shall together constitute one and the same
agreement.
**THE BALANCE OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY**
<Page>
IN WITNESS WHEREOF, the Bank and the Borrower have caused this Amendment
to be duly executed as a sealed instrument by their duly authorized
representatives, all as of the day and year first above written.
CHASE CORPORATION
By: /s/ Peter R. Chase
------------------
Title: President & CEO
FLEET NATIONAL BANK
By: /s/ Christopher P. Busconi
--------------------------
Title: Vice President