EXHIBIT 4.4
THIRD AMENDMENT AND WAIVER
This Third Amendment and Waiver (this "AMENDMENT") to the Credit Agreement
(as defined below) is entered into as of June 2, 2000 by and among MacDERMID,
INCORPORATED, a Connecticut corporation (the "COMPANY"), the several financial
institutions party hereto (collectively, the "LENDERS"; individually, a
"LENDER"), and BANK OF AMERICA, N.A., f/k/a/ Bank of America National Trust and
Savings Association, successor by merger to Bank of America, N.A., f/k/a
NationsBank, N.A., as letter of credit issuing bank, swing line lender and
administrative agent for the Lenders (the "ADMINISTRATIVE AGENT"). Unless
otherwise specified herein, capitalized terms used in this Amendment shall have
the meanings ascribed to them by the Credit Agreement (as defined below).
RECITALS
WHEREAS, the Company, the Lenders from time to time party thereto and the
Administrative Agent are party to the Second Amended and Restated Multicurrency
Credit Agreement, dated as of October 25, 1998, amended and restated as of
December 15, 1998 and further amended and restated as of June 15, 1999 (as
amended by that certain First Amendment dated as of September 24, 1999 and the
Second Amendment dated as of November 12, 1999 and as the same may be further
amended, supplemented, restated or otherwise modified from time to time in
accordance with its terms and in effect, the "CREDIT AGREEMENT"); and
WHEREAS, the Company, the Administrative Agent and the Majority Lenders
desire to (i) permit the Company to increase the Aggregate Revolving Loan
Commitment by $50,000,000 pursuant to SECTION 2.01(c)(ii) of the Credit
Agreement; (ii) waive the notice provisions of SECTION 2.01(c)(ii) of the Credit
Agreement; and (iii) amend SECTION 2.01(c)(ii) of the Credit Agreement asc
specified below; and
WHEREAS, each of the Lenders listed on EXHIBIT A hereto wishes to increase
its Revolving Loan Commitment on the terms and conditions specified herein;
NOW, THEREFORE, in consideration of the mutual execution hereof and other
good and valuable consideration, the parties hereto agree as follows:
SECTION 1. AMENDMENT. SECTION 2.01(c)(ii) of the Credit Agreement is
hereby amended by (i) adding the language "(in addition to the increase
occurring on June 2, 2000)" immediately after the phrase "the Company may" in
the first sentence thereof; and (ii) by deleting the first parenthetical thereof
before giving effect to this amendment and by replacing it with the following
new parenthetical "(after giving effect to which the Aggregate Revolving Loan
Commitment shall not exceed an amount equal to $225,000,000 less the aggregate
amount of reductions to the Aggregate Revolving Loan Commitment effected on or
prior to the date of such increase)".
SECTION 2. NOTICE OF AGGREGATE REVOLVING LOAN COMMITMENT INCREASE. The
Company hereby gives notice of its intention to increase the Aggregate Revolving
Loan Commitment by $50,000,000 pursuant to SECTION 2.01(c)(ii) of the Credit
Agreement such increase to be effective as of June 2, 2000.
SECTION 3. WAIVER AND ACKNOWLEDGEMENT. The Administrative Agent and the
Majority Lenders hereby waive the thirty (30) day notice requirement of SECTION
2.01(c)(ii) of the Credit Agreement and acknowledge the Company's intention to
increase the Aggregate Revolving Loan Commitment by $50,000,000 as of June 2,
2000.
SECTION 4. AGGREGATE REVOLVING LOAN COMMITMENT INCREASE. Each of the
Lenders listed on EXHIBIT A attached hereto agrees to increase its existing
Revolving Loan Commitment effective as of June 2, 2000 by the amount set forth
opposite such Lender's name on EXHIBIT A and to make its pro-rata portion of the
Revolving Loans requested by the Company on June 2, 2000 after giving effect to
the increase in such Lender's Revolving Loan Commitment. The existing SCHEDULE
2.01 to the Credit Agreement is hereby amended to reflect the increases in the
Revolving Loan Commitments of certain Lenders by replacing such schedule in its
entirety with the SCHEDULE 2.01 attached hereto as EXHIBIT B.
SECTION 5. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
(a) Except as specifically amended above, the Credit Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the
Administrative Agent or any Lenders under the Credit Agreement, or constitute a
waiver of any provision of the Credit Agreement, except as specifically set
forth herein. Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of similar import shall mean and be a reference to the Credit Agreement as
amended hereby.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to Administrative Agent and the Lenders as
follows:
(a) INCORPORATION OF REPRESENTATION AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in the Credit Agreement,
as amended hereby, are true and correct in all material respects at and as of
the Effective Date, as defined in SECTION 7 of this Agreement, (except to the
extent specifically made with regard to a particular date in which case such
representations and warranties shall be true and correct as of such date).
(b) ABSENCE OF DEFAULT. Both immediately prior to and after giving
effect to this Amendment, no Default or Event of Default will exist or will be
continuing.
(c) CORPORATE POWER AND AUTHORITY. The Company has the corporate
power and authority to execute, deliver and perform the terms and provisions of
this Amendment
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and has taken all necessary corporate action to authorize the execution,
delivery and performance by it of this Amendment.
(d) NO ADDITIONAL CONSENTS REQUIRED. No authorization or approval or
other action by, and no notice to or registration with, any Person is required
in connection with the execution, delivery and performance hereof other than
those obtained and in full force and effect.
(e) BINDING OBLIGATION. This Amendment has been duly executed and
delivered by the Company and by each Subsidiary Guarantor, and constitutes the
legal, valid and binding obligation of each such Person a party thereto
enforceable against such Person in accordance with its terms, except as the
enforcement hereof may be subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and general principles of equity (regardless of whether
enforcement is sought in equity or at law).
(f) NO VIOLATION OR CONFLICT. Neither execution, delivery and
performance of this Amendment by the Company or any Subsidiary Guarantor nor the
consummation of the transactions contemplated hereby will cause the Company (or
any Subsidiary Guarantor, as the case may be) to be in default under any law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award or any indenture, agreement, lease or instrument.
SECTION 7. CONDITIONS TO EFFECTIVENESS OF THE AMENDMENT. This shall become
effective upon the date of the satisfaction of the conditions set forth below
(the "EFFECTIVE DATE"):
(a) PROPER EXECUTION AND DELIVERY OF AMENDMENT. The Company, each
Subsidiary Guarantor, the Administrative Agent, the Majority Lenders and each
Lender listed on EXHIBIT A hereto shall have duly executed and delivered to
Administrative Agent this Amendment.
(b) DELIVERY OF NEW NOTES. The Company shall have duly executed and
delivered to Administrative Agent a new Note for each Lender listed on EXHIBIT A
reflecting the total amount of such Lender's Revolving Loan Commitment after
giving effect to the increase in such Lender's Revolving Loan Commitment on the
Effective Date.
(c) REPRESENTATIONS AND WARRANTIES; DEFAULT; OFFICER'S CERTIFICATE.
The representations and warranties set forth in Article VI of the Credit
Agreement and in SECTION 6 of this Amendment shall be true and correct, except
to the extent such representations and warranties are expressly made as of a
specified date in which event such representations and warranties shall be true
and correct as of such specified date, and no Default or Event of Default shall
have occurred or be continuing and the Administrative Agent shall have received
a certificate executed by a Responsible Officer on behalf of the Company, dated
the Effective Date, stating that the representations and warranties set forth in
ARTICLE VI of the Credit Agreement and in SECTION 6 of this Amendment are true
and correct as of the date of the certificate, except to the extent such
representations and warranties are expressly made as of a
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specified date in which event such representations and warranties shall be true
and correct as of such specified date, that no Default or Event of Default has
occurred and is continuing, and that the conditions of this SECTION 7 have been
fully satisfied or waived.
(d) FEES. The Company shall have paid to Administrative Agent and
the Lenders all costs, fees and expenses (including, without limitation,
reasonable legal fees and expenses) payable to Administrative Agent and the
Lenders to the extent then due, including, without limitation, pursuant to
SECTION 8 of this Amendment.
(e) NO CONFLICT. The execution of this Amendment and the
consummation of the transactions contemplated hereby shall not violate or
conflict with any law, rule or regulation or any material agreement, contract or
other obligation binding upon or affecting the Company or any of its
Subsidiaries or any of their properties or business.
(f) NOTICE OF BORROWING. The Company shall have delivered to the
Administrative Agent a Notice of Borrowing with respect to any Borrowing on the
Effective Date.
SECTION 8. FEES, COSTS AND EXPENSES. On the Effective Date: (a) the
Company agrees to pay a fee to the Administrative Agent on behalf of each Lender
(other than any Lender who has waived such fee) which has executed and delivered
this Amendment on or prior to 10:00 a.m. E.S.T. on June 2, 2000 equal to $2,500
for each such Lender; (b) the Company agrees to pay an upfront fee to the
Administrative Agent on behalf of each Lender (including Bank of America) listed
on EXHIBIT A hereto equal to .20% of the amount of the increase in such Lender's
Revolving Loan Commitment on the Effective Date; (c) the Company agrees to pay
to the Administrative Agent for the Administrative Agent's own account those
fees specified in that certain Fee Letter dated as of May 10, 2000 among the
Company and the Administrative Agent; and (d) the Company also agrees to pay all
reasonable costs and expenses in connection with the negotiation, preparation,
printing, typing, reproduction, execution and delivery of this Amendment and all
other documents furnished pursuant hereto or in connection herewith, including
without limitation, the reasonable fees and out-of-pocket expenses of Winston &
Xxxxxx, special counsel to Administrative Agent, or the reasonable allocated
costs of staff counsel as well as the fees and out-of-pocket expenses of
counsel, independent public accountants and other outside experts retained by
Administrative Agent in connection with the administration of this Amendment.
SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 10. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
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SECTION 11. REAFFIRMATION OF GUARANTIES. Each Subsidiary Guarantor as a
guarantor of the Obligations under the Subsidiary Guaranty and the other Loan
Documents, hereby reaffirms its continuing obligations and liabilities
thereunder, and agrees that such Subsidiary Guaranty and the other Loan
Documents shall remain in full force and effect and cover and extend to all
Obligations under the Credit Agreement (as amended hereby).
SECTION 12. FACSIMILE TRANSMISSION COUNTERPARTS. This Amendment may be
executed in any number of counterparts, each of which when so executed shall be
deemed an original but all such counterparts shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Amendment by facsimile transmission shall be effective as delivery of a manually
executed counterpart of this Amendment.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
MacDERMID, INCORPORATED
By: /s/ XXXXXXX X. XXXXXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
-------------------------------
Title: Secretary
-------------------------------
MacDERMID TOWER, INC.
MacDERMID TARTAN, INC.
MacDERMID ACUMEN, INC.
MacDERMID EQUIPMENT, INC.
MacDERMID SOUTH ATLANTIC, INC.
MacDERMID OVERSEAS ASIA,
LIMITED
MacDERMID EUROPE, INC.
MacDERMID DELAWARE, INC.
MacDERMID INVESTMENTS
CORPORATION
ELNIC, INC.
MacDERMID SOUTH AMERICA, INC.
SPECIALTY POLYMERS, INC.
ECHO INVESTMENTS, INC.
MCD ACQUISITION CORP.
X. XXXXXXX, INC.
X. XXXXXXX USA, LLC
CANNING GUM, LLC
By: /s/ XXXX X. XXXXXXX
-------------------------------
Name: Xxxx X. Xxxxxxx
-------------------------------
Title: Secretary
-------------------------------
BANK OF AMERICA, N.A., f/k/a BANK
OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, successor by
merger to BANK OF AMERICA, N.A.,
f/k/a NATIONSBANK, N.A.,
as Administrative Agent
By: /s/ XXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: Vice President
-------------------------------
BANK OF AMERICA, N.A., f/k/a BANK
OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, successor by
merger to BANK OF AMERICA, N.A.,
f/k/a NATIONSBANK, N.A.,
Individually as a Lender, the Swing Line
Lender and as the Issuing Bank
By: /s/ XXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: Vice President
-------------------------------
FLEET BANK, N.A., as Syndication Agent and
as a Lender
By: /s/ XXXXXX X. XXXX
-------------------------------
Name: Xxxxxx X. Xxxx
-------------------------------
Title: Vice President
-------------------------------
THE BANK OF NEW YORK, as Co-Agent and as
a Lender
By: /s/ XXXXXXXXX XXXXXXXXXX
-------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
-------------------------------
Title: Vice President
-------------------------------
FIRST UNION NATIONAL BANK, as Co-Agent and
as a Lender
By: /s/ XXXXXX X. XXXXX
-------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------
Title: Vice President
-------------------------------
LLOYDS TSB BANK PLC as Co-Agent and as
a Lender
By: /s/ XXX XXXXXXX
-----------------------------------
Name: Xxx Xxxxxxx
-----------------------------------
Title: Vice President Acquisition Finance
-----------------------------------
LLOYDS TSB BANK PLC as Co-Agent and as
a Lender
By: /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Assistant Director
-----------------------------------
THE CHASE MANHATTAN BANK
By: /s/ XXXXXX XXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
COMERICA BANK
By: /s/ XXXXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxxxx Xxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
BANK ONE, N.A. (f/k/a/ THE FIRST NATIONAL
BANK OF CHICAGO)
By: /s/ XXXXXXXX XXX
-----------------------------------
Name: Xxxxxxxx Xxx
-----------------------------------
Title: Assistant Vice President
-----------------------------------
ABN AMRO BANK N.V.
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
-----------------------------------
ABN AMRO BANK N.V.
By: /s/ XXXX X. XXXXX
-----------------------------------
Name: Xxxx X. Xxxxx
-----------------------------------
Title: Group Vice President
-----------------------------------
BANK OF MONTREAL
By: /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
BANK OF TOYKO-MITSUBISHI TRUST COMPANY
By: /s/ XXXXXX XXXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
UNICREDITO ITALIANO S.p.A., New York
Branch
By: /s/ XXXXXX XXXXX XXXXX
-----------------------------------
Name: Xxxxxx Xxxxx Dente
-----------------------------------
Title: First Vice President
-----------------------------------
UNICREDITO ITALIANO S.p.A., New York
Branch
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
-----------------------------------
HSBC BANK USA
By: /s/ XXXX XXXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
FORTIS (USA) FINANCE LLC
By: /s/ XXXXX XXXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxxx
-----------------------------------
Title: Senior Vice President
-----------------------------------
By: /s/ XXXXXX XXXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxxx
-----------------------------------
Title: Tresurer
-----------------------------------
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG,
CAYMAN ISLAND BRANCH
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG, CAYMAN
ISLAND BRANCH
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
THE ROYAL BANK OF SCOTLAND plc
By: /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
EXHIBIT A
COMMITMENTS TO REVOLVER INCREASE
NAME OF BANK AMOUNT OF INCREASE
BANK OF AMERICA, N.A. $8,928,617.15
FIRST UNION NATIONAL BANK $15,000,000.00
LLOYD'S BANK Plc, MIAMI $7,500,000.00
BANK ONE, N.A. $7,500,000.00
ABN AMRO BANK N.V. $1,900,000.00
BANK OF TOKYO-MITSUBISHI TRUST COMPANY $1,890,000.00
ROYAL BANK OF SCOTLAND Plc $2,000,000.00
UNICREDITO ITALIANO S.p.A., New York Branch $2,857,142.85
HSBC $2,424,240.00
