Exhibit 10.2
SECOND AMENDMENT
This Second Amendment (the "AMENDMENT" to the Credit Agreement (as
defined below) is entered into as of November , 1999 by and among MacDERMID,
INCORPORATED, a Connecticut corporation (the "COMPANY"), the several financial
institutions from time to time party to this Agreement (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, Lenders and Administrative Agent are party to the
Second Amended and Restated Multicurrency Credit Agreement, dated as of October
24, 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 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 Lenders desire
to enter into certain amendments to the Credit Agreement as specified below;
NOW THEREFORE, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
SECTION 1. AMENDMENT.
(a) CLAUSE(i) of SECTION 2.07 of the Credit Agreement is
hereby amended by deleting such clause in its entirety and inserting in lieu
thereof the following new CLAUSE (i):
"(i) The Aggregate PTI Term Loan Commitment and the
PTI Revolver Increase Commitment shall be terminated and reduced in
zero in the event that:
(I) the PTI Merger has not been consummated
on or prior to January 28, 2000; and
(II) the PTI Funding Date has not occurred
on or prior to January 28, 2000."
(b) The reference to "7.5%" in the proviso at the end of each
of SECTIONS
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5.06(e) AND 6.22(b) of the Credit Agreement is hereby amended by deleting such
reference in its entirety and inserting in lieu thereof "10%".
(c) Each reference to "7.7 million shares of Company Common
Stock" in SECTIONS 6.02, 6.23(b) AND 8.02 of the Credit Agreement shall be
amended by deleting each such reference in its entirety and replacing in lieu of
thereof "7.0 million shares of Company Common Stock".
(d) Pursuant to SECTION 7.14(d) of the Credit Agreement, the
Administrative Agent hereby consents to the Third Amendment to the Merger
Agreement (as hereinafter defined) in the form presented to the Administrative
Agent which is limited solely to extending the termination date in SECTION 9 of
such Merger Agreement and reducing the share consideration paid by the Company
in connection with the PTI Merger.
(e) The existing SCHEDULE 2.08(d) to the Credit Agreement is
hereby amended by replacing such schedule in its entirety with the SCHEDULE
2.08(D) attached hereto as EXHIBIT A.
SECTION 2. 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, nor 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
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 3. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW YORK.
SECTION 4. 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.
SECTION 5. 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.
SECTION 6. EFFECTIVENESS. This Amendment shall become effective
as of the date first written above after receipt by the Administrative Agent of
the following:
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(a) executed signature pages for this Amendment signed by the
Company, the Subsidiary Guarantors, the Administrative Agent and the Lenders
with PTI Term Loan Commitments and PTI Revolver Increase Commitments;
(b) payment by the Company to the Administrative Agent for the
account of each Lender with a PTI Term Loan Commitment or PTI Revolver Increase
Commitment of all upfront fees due and owing each such Lender and as previously
agreed to by and among each such Lender and the Company; and
(c) receipt by the Administrative Agent of a copy of the Third
Amendment to that certain Plan and Agreement of Merger dated as of February 18,
1999 (the "MERGER AGREEMENT") by and among the Company, MCD Acquisition Corp.,
PTI, Inc., and Citicorp Venture Capital, Ltd., extending the termination date in
SECTION 9 of the Merger Agreement through at least December 15, 1999 and
reducing the share consideration paid by the Company in connection with the PTI
Merger.
SECTION 7. REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants that:
(a) The execution, delivery and performance by the Company and
the Subsidiary Guarantors of this Amendment have been duly authorized by all
necessary corporate action and this Amendment constitutes the legal, valid and
binding obligation of each such Person, enforceable against such Person in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability;
(b) Each of the representations and warranties contained in
the Credit Agreement is true and correct in all material respects on and as of
the date hereof as if made on the date hereof (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they are true and correct as of such earlier date); and
(c) Both before and after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing.
SECTION 8. 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 9. FACSIMILE TRANSMISSION COUNTERPARTS. 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.
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[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:
Name:
Title:
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.
SPECIALITY POLYMERS, INC.
ECHO INVESTMENTS, INC.
MCD ACQUISITION CORP.
X. XXXXXXX, INC.
X. XXXXXXX USA, LLC
CANNING GUM, LLC
By:
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
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By:
Name:
Title:
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
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BANKBOSTON, N.A., as Documentation Agent
and as a Lender
By:
Name:
Title:
FLEET NATIONAL BANK, as Syndication Agent
and as a Lender
By:
Name:
Title:
THE BANK OF NEW YORK, as Co-Agent and as
a Lender
By:
Name:
Title:
FIRST UNION NATIONAL BANK, as Co-Agent
and as a Lender
By:
Name:
Title:
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XXXXXX XXXX XXX, XXXXX, as Co-Agent and
as a Lender
By:
Name:
Title:
LLOYDS BANK PLC, MIAMI, as Co-Agent and
as a Lender
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
COMMERICA BANK
By:
Name:
Title:
BANK ONE, N.A. (f/k/a THE FIRST NATIONAL
BANK OF CHICAGO)
By:
Name:
Title:
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ABN AMRO BANK N.V.
By:
Name:
Title:
ABN AMRO BANK N.V.
By:
Name:
Title:
BANK OF MONTREAL
By:
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
Name:
Title:
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DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG, CAYMAN
ISLAND BRANCH
By:
Name:
Title:
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG, CAYMAN
ISLAND BRANCH
By:
Name:
Title:
THE ROYAL BANK OF SCOTLAND plc
By:
Name:
Title:
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UNICREDITO ITALIANO S.p.A., New York
Branch
By:
Name:
Title:
UNICREDITO ITALIANO S.p.A. New York
Branch
By:
Name:
Title:
HSBC BANK USA
By:
Name:
Title:
FORTIS (USA) FINANCE LLC
(f/k/a/ GENERALE (USA) FINANCE LLC)
By:
Name:
Title:
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