EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT is dated as of June 14, 2006
(this "Amendment"), among AMCOL International Corporation (the "Company"),
certain 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, certain 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, (the "Credit Agreement"); and
B. The Company has asked the Lenders and the Administrative Agent
to amend the Credit Agreement to permit Volclay Pty. Ltd., a wholly-owned
subsidiary of the Company, to become a "Borrower" under 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 The Introductory paragraph of the Credit Agreement is
hereby amended in its entirety and as so amended shall read as follows:
This Credit Agreement is entered into as of November 10,
2005, by and among AMCOL International Corporation, a Delaware
corporation (the "Company"), CETCO (Europe) Limited, a United
Kingdom corporation ("CETCO Europe"), Xxxxx Xxxxxxx Minchem
Limited, a United Kingdom corporation ("Xxxxx Xxxxxxx" and
together with CETCO Europe, collectively referred to herein as
the "UK Borrowers" and each individually as a "UK Borrower"),
CETCO Poland Sp. .zo. o, a Polish corporation (the "Polish
Borrower"), Volclay Pty. Ltd., an Australian corporation (the
"Australian Borrower" and, together with the Company, the UK
Borrowers, and the Polish Borrower collectively referred to
herein as the "Borrowers" and each individually as a
"Borrower"), the direct and indirect Subsidiaries of the
Borrowers from time to time party to this Agreement, as
Guarantors, the several financial institutions from time to time
party to this Agreement, as Lenders, and Xxxxxx X.X., as
Administrative Agent as provided herein. All capitalized terms
used herein without definition shall have the same meanings
herein as such terms are defined in Section 5.1 hereof.
Section 2.2 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 to
Xxxxx Xxxxxxx, 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 $25,000,000, (iii) the sum of the
aggregate principal amount of all Loans outstanding to Xxxxx
Xxxxxxx shall not exceed (euro)5,000,000, (iv) the sum of the
aggregate principal amount of all Loans denominated in Euro
outstanding to CETCO Europe shall not exceed (euro)4,000,000 and
the sum of the aggregate principal amount of all Loan
denominated in Pound Sterling to CETCO Europe shall not exceed
(pound)10,000,000, (v) the sum of the aggregate principal amount
of all Loans outstanding to the Polish Borrower shall not exceed
(euro)9,000,000 and (vi) the sum of the aggregate principal
amount of all Loans outstanding to the Australian Borrower shall
not exceed AUD5,000,000.
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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 2.3. Section 5.1 of the Credit Agreement is amended by
amended by inserting the following new defined terms in their proper
alphabetical order:
"Australian Borrower" is defined in the introductory
paragraph of this Agreement.
"Australian Dollars" and "AUD" means the lawful currency
of Australia.
Section 2.4. The defined term "Alternative Currency" contained in
Section 5.1 of the Credit Agreement is hereby amended by inserting immediately
following the phrase "Pound Sterling," appearing in the first line thereof the
following: "Australian Dollars,".
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Credit Agreement Representations. In order to induce the
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 as set forth in this
Article III.
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.
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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. The effectiveness of this Amendment is
subject to the satisfaction of all of the following conditions precedent:
(a) The Borrowers, the Guarantors, the Administrative Agent,
and the 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 and delivery of 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 such Lender's duly executed Note of the Australian Borrower dated
the date hereof and otherwise in compliance with the provisions of
Section 1.11 of the Credit Agreement;
(d) the Administrative Agent shall have received for each
Lender copies of the Australian Borrower's articles of incorporation and
bylaws (or comparable organizational documents) and any amendments
thereto, certified in each instance by its Secretary or Assistant
Secretary;
(e) the Administrative Agent shall have received for each
Lender copies of resolutions of the Australian Borrower's Board of
Directors (or similar governing body) authorizing the execution,
delivery and performance of this Amendment and the other Loan Documents
to which it is a party and the consummation of the transactions
contemplated hereby and thereby, together with specimen signatures of
the persons authorized to execute such documents on the Australian
Borrower's behalf, all certified in each instance by its Secretary or
Assistant Secretary;
(f) the Administrative Agent shall have received for each
Lender copies of the certificates of good standing for the Australian
Borrower to the extent applicable (dated no earlier than 30 days prior
to the date hereof) from the office of the secretary of the jurisdiction
of its incorporation or organization;
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(g) 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; and
(h) 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 Note(s), 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 5.4. No 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 5.5 Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF ILLINOIS.
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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/ Xxxx X. Xxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior V.P. and
Chief Financial Officer
CETCO EUROPE LTD.
By /s/ Xxxx X. Xxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
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 [First Amendment to Credit Agreement]
"GUARANTORS"
AMCOL INTERNATIONAL CORPORATION
By /s/ Xxxx X. Xxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior V.P. and
Chief Financial Officer
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: Vice President
S-2 [First Amendment to Credit Agreement]
"LENDERS"
XXXXXX X.X., in its individual
capacity as a Lender, as
L/C Issuer, and as
Administrative Agent
By /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
S-3 [First Amendment to Credit Agreement]
XXXXX FARGO BANK, N.A.
By /s/ Xxxxxx Xxxxx
---------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
S-4 [First Amendment to Credit Agreement]
BANK OF AMERICA, N.A.
By /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
S-5 [First Amendment to Credit Agreement]
THE NORTHERN TRUST COMPANY
By /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
S-6 [First Amendment to Credit Agreement]
