Third Amendment to Credit Agreement
Third
Amendment to Credit Agreement
This
Third
Amendment to Credit Agreement is dated
as
of May 20, 2008 (this “Amendment”),
among
AMCOL International Corporation (the “Company”),
the
Borrowing Subsidiaries, the guarantors party hereto, the financial institutions
listed on the signature pages hereof as Lenders, and Xxxxxx X.X. (“Xxxxxx”),
as
administrative agent (in such capacity, the “Administrative
Agent”).
Preliminary
Statements
A.The
Company, the Borrowing Subsidiaries, the guarantors party thereto (the
“Guarantors”),
the
financial institutions party thereto as Lenders, and the Administrative Agent
have heretofore entered into that certain Credit Agreement, dated as of
November 10, 2005 (as amended, the “Credit
Agreement”);
and
B.The
Company has asked the Lenders and the Administrative Agent to amend the Credit
Agreement to increase the aggregate Revolving Credit Commitments, extend the
Revolving Credit Termination Date, amend certain covenants, add new Lenders,
and
make certain other modifications to the Credit Agreement and the Lenders and
the
Administrative Agent are willing to do so on the terms and conditions set forth
in this Amendment.
Now,
Therefore,
in
consideration of the premises set forth above, the terms and conditions
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Article
I
Definitions
Section 1.1.Use
of Defined Terms.
Unless
otherwise defined or the context otherwise requires, terms for which meanings
are provided in the Credit Agreement shall have such meanings when used in
this
Amendment.
Article
II
Amendments
Section 2.1.Section 1.1
of the Credit Agreement is hereby amended in its entirety and as so amended
shall read as follows:
Section 1.1. Revolving
Credit Commitments.
Subject
to the terms and conditions hereof, each Lender, by its acceptance hereof,
severally agrees to make a loan or loans (individually a “Revolving
Loan”
and
collectively the “Revolving
Loans”)
in U.S.
Dollars, Euros and Pound Sterling to the Company, in Euros and Pound Sterling
to
AMCOL Minerals Europe, in Pound Sterling or Euros to CETCO Europe, in Euros
to
the Polish Borrower, in Australian Dollars to the Australian Borrower, from
time
to time on a revolving basis in an aggregate outstanding Original Dollar Amount
up to the amount of such Lender’s Revolving Credit Commitment, subject to any
reductions thereof pursuant to the terms hereof, before the Revolving Credit
Termination Date; provided
that
(i) the sum of the aggregate Original Dollar Amount of Revolving Loans,
Swing Loans, and L/C Obligations at any time outstanding shall not exceed the
Revolving Credit Commitments in effect at such time, (ii) the sum of the
aggregate Original Dollar Amount of all Loans outstanding to the Company
denominated in Euros and Pound Sterling shall not exceed $50,000,000, (iii)
the
sum of the aggregate principal amount of all Loans denominated in Euro
outstanding to AMCOL Minerals Europe shall not exceed €15,000,000 and the sum of
the aggregate principal amount of all Loans denominated in Pound Sterling to
AMCOL Minerals Europe shall not exceed £7,500,000, (iv) the sum of the aggregate
principal amount of all Loans denominated in Euro outstanding to CETCO Europe
shall not exceed €5,000,000 and the sum of the aggregate principal amount of all
Loans denominated in Pound Sterling to CETCO Europe shall not exceed £7,500,000,
(v) the sum of the aggregate principal amount of all Loans outstanding to the
Polish Borrower shall not exceed €5,000,000 and (vi) the sum of the aggregate
principal amount of all Loans outstanding to the Australian Borrower shall
not
exceed AUD5,000,000. Each Borrowing of Revolving Loans shall be made ratably
by
the Lenders in proportion to their respective Percentages. As provided in
Section 1.5(a) hereof, the Company may elect that each Borrowing of
Revolving Loans denominated in U.S. Dollars be either Base Rate Loans or
Eurocurrency Loans. All Revolving Loans denominated in an Alternative Currency
shall be Eurocurrency Loans. Revolving Loans may be repaid and the principal
amount thereof reborrowed before the Revolving Credit Termination Date, subject
to the terms and conditions hereof.
Section 2.2.Section
1.6 of the Credit Agreement is hereby amended by deleting the phrase
“a
Eurocurrency Loan, 1, 2, 3 or 6 months thereafter”
in
such
section and inserting in its place the phrase “a
Eurocurrency Loan, 1, 2, 3 or 6 or, if such option is available to all the
Lenders, 9 or 12 months thereafter”.
Section 2.3.Section 1.15
of the Credit Agreement is hereby amended by deleting clause (i) appearing
in the first sentence thereof and inserting in its place the
following:
(i) any
increase of the aggregate amount of the Revolving Credit Commitments to an
amount in excess of $275,000,000 will require the approval of the Required
Lenders, and
-2-
Section 2.4.Section
2.1 of the Credit Agreement is hereby amended by inserting new subsection (d)
immediately following subsection (c) as follows:
(d) Utilization
Fee.
The
Borrower shall pay to the Administrative Agent for the account of each Lender
in
accordance with its Percentage, a utilization fee of 0.25% per annum (calculated
on the basis of a year of 360 days and the actual number of days elapsed)
times
the
Original Dollar Amount of all Revolving Loans, Swing Loans and L/C Obligations
outstanding on each day that the Original Dollar Amount of all Revolving Loans,
Swing Loans and L/C Obligations outstanding exceed 50% of the actual daily
amount of the aggregate Commitments then in effect (or, if terminated, in effect
immediately prior to such termination). The utilization fee shall be due and
payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing June 30, 2008, and on the Revolving Credit
Termination Date (and, if applicable, thereafter on demand). The utilization
fee
shall be calculated quarterly in arrears. The utilization fee shall accrue
at
all times, including at any time during which one or more of the conditions
in
Section 7.1 is not met.
Section 2.5.The
defined term “Applicable
Margin”
contained in Section 5.1 of the Credit Agreement is hereby amended by deleting
the schedule appearing therein and inserting in its place the
following:
Level
|
Total
Senior Funded
Debt/EBITDA
Ratio
for
such Pricing Date
|
Applicable
Margin for
Base
Rate Loans and
Reimbursement
Obligations
shall be:
|
Applicable
Margin
for
Eurocurrency Loans
and
Letter of Credit
Fee
shall be:
|
Applicable
Margin
for
Commitment Fee
shall
be:
|
V
|
Greater
than or equal to 2.50 to 1.0
|
0.50%
|
2.00%
|
0.375%
|
IV
|
Less
than 2.50 to 1.0, but greater than or equal to 2.00 to 1.0
|
0.25%
|
1.75%
|
0.30%
|
III
|
Less
than 2.0 to 1.0, but greater than or equal to 1.5 to 1.0
|
0%
|
1.50%
|
0.25%
|
II
|
Less
than 1.5 to 1.0, but greater than or equal to 1.0 to 1.0
|
0%
|
1.25%
|
0.20%
|
I
|
Less
than 1.0 to 1.0
|
0%
|
1.00%
|
0.15%
|
-3-
Section 2.6. Section
5.1 of the Credit Agreement is hereby amended by inserting in proper
alphabetical order the following new defined terms:
“Domestic
Subsidiary”
means
each Subsidiary that is not a Foreign Subsidiary.
“BANA
Letter of Credit”
means
the irrevocable letter of credit No. 0000000 issued by Bank of America, N.A.
in
the stated amount of $4,855,232.88, which shall be a Letter of Credit for all
purposes of this Agreement.
Section 2.7.The
defined term “L/C
Sublimit”
contained in Section 5.1 of the Credit Agreement is hereby amended in its
entirety and as so amended shall read as follows:
“L/C
Sublimit”
means
$30,000,000, as reduced pursuant to the terms hereof; provided that
not more
than $5,000,000 shall be available for the BANA Letter of Credit.
Section 2.8.The
defined term “Revolving
Credit Termination Date”
contained in Section 5.1 of the Credit Agreement is hereby amended in its
entirety and as so amended shall read as follows:
“Revolving
Credit Termination Date”
means
April 1, 2013, or such earlier date on which the Revolving Credit
Commitments are terminated in whole pursuant to Section 1.12, 9.2 or 9.3
hereof.
Section 2.9.Section 8.9(f)
of the Credit Agreement is hereby amended in its entirety and as so amended
shall read as follows:
(f) (i)
the
Company’s and its Domestic Subsidiaries investments from time to time in its
Domestic Subsidiaries, the Borrowers and the Guarantors and (ii) investments
made from time to time by the Company or any Subsidiary in one or more of its
Foreign Subsidiaries (excluding open intercompany trade accounts arising in
the
ordinary course of business which are not more than 30 days past due) that
are not Borrowers or Guarantors at any one time outstanding in an amount that
does not exceed in the aggregate 25% of the total amount of all assets of the
Company and its Subsidiaries as shown on the Company’s most recent financial
statements delivered pursuant to Section 8.5 hereof;
Section 2.10.Section
8.9(h) of the Credit Agreement relating to Acquisitions is hereby amended by
(i)
deleting the amount “$20,000,000”
appearing in such section and inserting in its place the amount “$30,000,000”
and
(ii) re-lettering subsection (h) as subsection (g).
-4-
Section 2.11.Section 8.9(i)
of the Credit Agreement is hereby amended in its entirety and as so amended
shall be re-lettered as subsection (h) and shall read as follows:
(h) other
investments, loans, and advances by the Company and its Subsidiaries, in
addition to those otherwise permitted by this Section at any one time
outstanding in an amount not to exceed in the aggregate 10% of the total amount
of all assets of the Company and its Subsidiaries as shown on the Company’s most
recent financial statements delivered pursuant to Section 8.5
hereof.
Section
2.12.The
term
“Lenders”
as
defined in Section 5.1 of the Credit Agreement shall mean and include the
Lenders currently party to the Credit Agreement and, from and after the
Effective Time, RBS Citizens, N.A. and HSBC Bank USA, N.A. (each, a
“New Lender”),
with
Commitments as set forth on Schedule 1 hereto. Each New Lender agrees to be
bound by the terms and conditions set forth in the Credit Agreement as if it
were an original signatory thereto. From and after the Effective Time each
New
Lender shall have all the rights of a Lender under the Credit Agreement as
if it
were an original signatory thereto, including all rights with respect to the
applicable fees accrued on and after the Effective Time.
Section 2.13.The
Company has requested that from and after the Effective Time the aggregate
Revolving Credit Commitments of the Lenders be increased by $75,000,000, with
such increase being allocated to certain of the Lenders (including the New
Lenders). Accordingly, the Revolving Credit Commitments of the Lenders set
forth
on Schedule 1 to the Credit Agreement are hereby amended in their entirety
and as so amended shall be as set forth on Schedule 1 to this Amendment. If
any Revolving Loans are outstanding under the Credit Agreement as of the
Effective Time, the Company irrevocably authorizes and directs the Lenders
(including the New Lenders) to make (nonratably if necessary, but otherwise
subject to the terms and conditions of the Credit Agreement as amended hereby)
Revolving Loans in an amount sufficient to (and the Company hereby irrevocably
authorizes and directs the Lenders to apply such Revolving Loan to), pay and
discharge the Revolving Loans of the Lenders (nonratably if necessary) such
that
the percentage of each Lender’s Revolving Credit Commitment in use immediately
after giving effect to such application is equal. Such purchases and sales
shall
be arranged through the Administrative Agent and each Lender (including the
New
Lenders) hereby agrees to execute such further instruments and documents, if
any, as the Administrative Agent may reasonably request in connection
therewith.
Section 2.14.The
Company hereby designates, and the Administrative Agent hereby approves, Bank
of
America, N.A. as an L/C Issuer solely for purposes of issuing the BANA Letter
of
Credit.
Article
III
Representations
And Warranties
Section 0.0.Xxxxxx
Agreement Representations. In
order
to induce the Lenders (including the New Lenders) and the Administrative Agent
to enter into this Amendment, each Borrower hereby reaffirms, as of the date
hereof, its representations and warranties contained in Section 6 of the
Credit Agreement and additionally represents and warrants to the Administrative
Agent and each Lender (including the New Lenders) as set forth in this Article
III.
-5-
Section 3.2.Due
Authorization, Non-Contravention, etc.
The
execution, delivery and performance by each Borrower and each Guarantor of
this
Amendment are within such Borrower’s and such Guarantor’s powers, have been duly
authorized by all necessary corporate action, and do not:
(a) contravene
any Borrower’s or any Guarantor’s constituent documents;
(b) contravene
any contractual restriction, law or governmental regulation or court decree
or
order binding on or affecting any Borrower or any Guarantor; or
(c) result
in, or require the creation or imposition of, any Lien on any of the properties
of a Borrower or a Guarantor.
Section 3.3.Government
Approval, Regulation, etc.
No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or other Person is required for
the due execution, delivery or performance by any Borrower or any Guarantor
of
this Amendment.
Section 3.4.Validity,
etc.
This
Amendment constitutes the legal, valid and binding obligation of each Borrower
and each Guarantor enforceable in accordance with its terms.
Article
IV
Conditions
Precedent
Section 4.1.Effectiveness.
This
Amendment shall become effective as of the opening of business on May 20,
2008 (the “Effective
Time”)
subject
to the satisfaction of all of the following conditions precedent on or before
such date:
(a) The
Borrowers, the Guarantors, the Administrative Agent, and the Lenders (including
the New Lenders) shall have executed and delivered this Amendment.
(b) The
Administrative Agent shall have received certified copies of resolutions of
the
executive committee of the boards of directors (or equivalent governing body)
of
the Company authorizing the execution, delivery and performance of this
Amendment and the Credit Agreement as amended by this Amendment and indicating
the authorized signers of this Amendment and the specimen signatures of such
signers.
(c) The
Administrative Agent shall have received for each Lender copies of resolutions
of each Guarantor’s Board of Directors (or similar governing body) authorizing
the execution, delivery and performance of this Amendment and the Credit
Agreement as amended by this Amendment and the consummation of the transactions
contemplated hereby and thereby, together with specimen signatures of the
persons authorized to execute such documents on each Guarantor’s behalf, all
certified in each instance by its Secretary or Assistant Secretary;
(d) The
Administrative Agent shall have received for each New Lender such Lender’s duly
executed Notes of each Borrower dated the date hereof and otherwise in
compliance with the provisions of Section 1.11 of the Credit
Agreement;
-6-
(e) The
Administrative Agent shall have received an opinion of counsel to the Company
in
form acceptable to the Administrative Agent and covering such matters relating
to the transactions contemplated hereby as the Administrative Agent may request;
(f) The
Administrative Agent shall have received for itself and the Lenders (including
to New Lenders) the fees as agreed to between the Administrative Agent and
the
Company; and
(g) Legal
matters incident to the execution and delivery of this Amendment shall be
satisfactory to the Administrative Agent and its counsel.
Article
V
Miscellaneous
Provisions
Section 5.1.Ratification
of and References to the Credit Agreement.
Except
for the amendments expressly set forth above, the Credit Agreement and each
other Loan Document is hereby ratified, approved and confirmed in each and
every
respect. Reference to this specific Amendment need not be made in the Credit
Agreement, the Notes, or any other instrument or document executed in connection
therewith, or in any certificate, letter or communication issued or made
pursuant to or with respect to the Credit Agreement, any reference in any of
such items to the Credit Agreement being sufficient to refer to the Credit
Agreement as amended hereby.
Section 5.2.Headings.
The
various headings of this Amendment are for convenience of reference only, are
not part of this Amendment and shall not affect the construction of, or be
taken
into consideration in interpreting, this Amendment.
Section 5.3.Execution
in Counterparts.
This
Amendment may be executed in counterparts (and by different parties hereto
on
different counterparts), each of which shall constitute an original, but all
of
which when taken together shall constitute a single agreement.
Section 0.0.Xx
Other Amendments.
Except
for the amendments expressly set forth above, the text of the Credit Agreement
and the other Loan Documents shall remain unchanged and in full force and
effect, and the Lenders and the Administrative Agent expressly reserve the
right
to require strict compliance with the terms of the Credit Agreement and the
other Loan Documents.
Section 5.5.Costs
and Expenses. The
Company agrees to pay on demand all costs and expenses of or incurred by the
Administrative Agent in connection with the negotiation, preparation, execution
and delivery of this Amendment, including the fees and expenses of counsel
for
the Administrative Agent.
Section 5.6.Governing
Law.
This
Amendment shall be construed in accordance with and governed by the law of
the
State of Illinois.
-7-
In
Witness Whereof,
the
parties hereto have caused this Amendment to be duly executed and delivered
by
their respective duly authorized officers as of the day and year first above
written.
“Borrowers”
|
||||
AMCOL
International Corporation
|
||||
By
|
/s/
Xxxxxx X. Xxxxxxx
|
|||
Name:
|
Xxxxxx
X. Xxxxxxx
|
|||
Title:
|
VP
and CFO
|
|||
CETCO
Europe Ltd.
|
||||
By
|
/s/
Xxxx X. Xxxxxxxx
|
|||
Name:
|
Xxxx
X. Xxxxxxxx
|
|||
Title:
|
Director
|
|||
AMCOL
Minerals Europe, Ltd.
(f/k/a
|
||||
Xxxxx
Xxxxxxx Minchem Limited)
|
||||
By
|
/s/
Xxxx X. Xxxxxxxx
|
|||
Name:
|
Xxxx
X. Xxxxxxxx
|
|||
Title:
|
Director
|
|||
CETCO
Poland SP. Z.O. O
|
||||
.By
|
/s/
Xxxx X. Xxxxxxxx
|
|||
Name:
|
Xxxx
X. Xxxxxxxx
|
|||
Title:
|
Director
|
|||
Volclay
Pty. Ltd.
|
||||
By
|
/s/
Xxxx X. Xxxxxxxx
|
|||
Name:
|
Xxxx
X. Xxxxxxxx
|
|||
Title:
|
Director
|
S-1
“Guarantors”
|
||||
AMCOL
International Corporation
|
||||
By
|
/s/
Xxxxxx X. Xxxxxxx
|
|||
Name:
|
Xxxxxx
X. Xxxxxxx
|
|||
Title:
|
VP
and CFO
|
|||
Ameri-Co
Logistics, Inc.
|
||||
By
|
/s/
Xxxx X. Xxxxxxxx
|
|||
Name:
|
Xxxx
X. Xxxxxxxx
|
|||
Title:
|
Treasurer
|
|||
American
Colloid Company
|
||||
By
|
/s/
Xxxx X. Xxxxxxxx
|
|||
Name:
|
Xxxx
X. Xxxxxxxx
|
|||
Title:
|
Treasurer
|
|||
Colloid
Environmental Technologies Company
|
||||
By
|
/s/
Xxxx X. Xxxxxxxx
|
|||
Name:
|
Xxxx
X. Xxxxxxxx
|
|||
Title:
|
Treasurer
|
|||
AMCOL
Specialties Holdings, Inc.
|
||||
By
|
/s/
Xxxx X. Xxxxxxxx
|
|||
Name:
|
Xxxx
X. Xxxxxxxx
|
|||
Title:
|
Treasurer
|
|||
CETCO
Oilfield Services Company
|
||||
By
|
/s/
Xxxx X. Xxxxxxxx
|
|||
Name:
|
Xxxx
X. Xxxxxxxx
|
|||
Title:
|
Treasurer
|
S-2
“Lenders”
|
||||
Xxxxxx
X.X.,
in
its individual capacity as a Lender, as L/C Issuer, and as
Administrative Agent
|
||||
By
|
/s/
Xxxx X. Xxxxxx
|
|||
Name:
|
Xxxx
X. Xxxxxx
|
|||
Title:
|
Director
|
S-3
Xxxxx
Fargo Bank, N.A., individually
as a Lender and as Syndication Agent
|
||||
By
|
/s/
Xxxxxxx
Xxxxxx
|
|||
Name:
|
Xxxxxxx
Xxxxxx
|
|||
Title:
|
Vice
President
|
S-4
Bank
of America, N.A., individually
as a Lender and as Documentation Agent
|
||||
By
|
/s/
Xxxxxx X. Xxxxxx
|
|||
Name:
|
Xxxxxx
X. Xxxxxx
|
|||
Title:
|
Senior
Vice President
|
S-5
The
Northern Trust Company
|
||||
By
|
/s/
Xxxxxxx Xxxxx
|
|||
Name:
|
Xxxxxxx
Xxxxx
|
|||
Title:
|
Vice
President
|
S-6
RBS
Citizens, N.A.
|
||||
By
|
/s/
Xxxxx Xxxxxx
|
|||
Name:
|
Xxxxx
Xxxxxx
|
|||
Title:
|
Vice
President
|
S-7
HSBC
Bank USA, N.A.
|
||||
By
|
/s/
Xxxxxx Xxxxxx
|
|||
Name:
|
Xxxxxx
Xxxxxx
|
|||
Title:
|
Vice
President
|
S-8
Schedule
1
Commitments
Name
of Lender
|
Revolving
Credit Commitment
|
Swing
Line Sublimit
|
|||||
Xxxxxx
X.X.
|
$
|
55,000,000
|
$
|
10,000,000
|
|||
Xxxxx
Fargo Bank N.A.
|
$
|
52,500,000
|
|||||
Bank
of America, N.A.
|
$
|
52,500,000
|
|||||
The
Northern Trust Company
|
$
|
30,000.000
|
|||||
RBS
Citizens, N.A.
|
$
|
25,000,000
|
|||||
HSBC
Bank USA, N.A.
|
$
|
10,000,000
|
|||||
Total
|
$
|
225,000,000
|
$
|
10,000,000
|