EXHIBIT 10.11
AMCOL International Corporation
Fourth Amendment to Credit Agreement
Xxxxxx Trust and Savings Bank
Chicago, Illinois
The First National Bank of
Chicago, Illinois
LaSalle National Bank
Chicago, Illinois
The Northern Trust Company
Chicago, Illinois
Bank of America National
Trust and Savings Association
Chicago, Illinois
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of October 4,
1994 as heretofore amended (the "Credit Agreement") by and among the
undersigned, AMCOL International Corporation (formerly known as American Colloid
Company), a Delaware corporation (the "Company"), Xxxxxx Trust and Savings Bank
in its capacity as Agent (the "Agent") and you (collectively, the "Banks"). The
Company applies to the Banks for their agreement to increase the aggregate
amount of the Revolving Credit to $125,000,000, extend the Termination Date of
the Revolving Credit, add Bank of America National Trust and Savings Association
as a Bank under the Credit Agreement and amend certain terms of the Credit
Agreement in the manner and on the terms and conditions set forth herein.
Capitalized terms used in this Amendment and not otherwise specifically defined
have the meaning given such terms in the Credit Agreement.
Section 1. Addition of New Bank.
Upon satisfaction of all of the conditions precedent set forth in Section 3
of this Amendment:
Section 1.1. Bank of America National Trust and Savings Association (the
"New Bank") shall assume the role of a Bank under the Credit Agreement with a
Commitment in the
principal amount of $20,000,000 (the "New Commitment"). The New Bank shall have
all the rights and, from and after the date this Amendment becomes effective,
obligations currently held by all the Banks. The parties hereto consent to such
addition of the New Bank and the New Commitment under the Credit Agreement.
Notwithstanding anything contained herein to the contrary, the increase of the
Commitments contemplated by the addition of the New Bank shall not become
effective until the satisfaction of the conditions precedent set forth in
Section 3 hereof. Accordingly, all references in the Credit Agreement, Notes and
Guaranty Agreements (collectively, the "Loan Documents") to the terms "Bank" and
"Banks" shall be deemed to include, and be a reference to, the New Bank.
Section 1.2. All references in the Credit Agreement and the Loan Documents
to the Notes or any of them shall be deemed to include, and be a reference to,
the Revolving Credit Note issued pursuant hereto by the Company to the New Bank.
Section 1.3. The New Bank shall be deemed a Bank signatory to the Credit
Agreement and the following address and Commitment shall be deemed to appear on
the Banks' signature page in the Credit Agreement as so amended for the New
Bank:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Commitment: $20,000,000 (16%)
Telephone: 000-000-0000
Telecopier: 000-000-0000
Section 2. Amendments To Credit Agreement.
Upon satisfaction of all of the conditions precedent specified in Section 3
of this Amendment, the Credit Agreement shall be amended as follows:
Section 2.1. The definition of "Termination Date" appearing in Section 4 of
the Credit Agreement shall be amended by deleting the date "October 31, 2000"
appearing therein and by substituting therefor the date "October 31, 2003".
Section 2.2. Section 4 of the Credit Agreement shall be further amended by
adding the following new definition thereto:
"Year 2000 Problem" means any significant risk that computer hardware,
software, or equipment containing embedded microchips essential to the
business or operations of the Company or any of its Subsidiaries will not,
in the case of dates or time periods occurring after December 31, 1999,
function at least as efficiently and reliably as in the case of times or
time periods occurring before January 1, 2000, including the making of
accurate leap year calculations.
Section 2.3. Section 6 of the Credit Agreement shall be amended by adding
the following new Section 6.3 at the end thereof:
"Section 6.3. The Company is conducting a comprehensive review and
assessment of the computer applications of the Company and its Subsidiaries
and is making inquiry of their material suppliers, service vendors
(including data processors) and customers, with respect to any defect in
computer software, data bases, hardware, controls and peripherals related
to the occurrence of the year 2000 or the use at any time of any date which
is before, on and after December 31, 1999, in connection therewith. Based
on the foregoing review, assessment and inquiry, the Company believes that
no such defect could reasonably be expected to have a material adverse
effect on the business or financial affairs of the Company (or of the
Company and its Subsidiaries taken on a consolidated basis)."
Section 2.4. Subsections (e), (f), (g), (h) and (i) of Section 7.15 of the
Credit Agreement shall be deleted and the following subsections (e), (f), (g)
and (h) shall be inserted in their stead:
"(e) investments in, and loans and advances to, Domestic Subsidiaries;
(f) investments in, and loans and advances to, Restricted Subsidiaries
(other than Domestic Subsidiaries) provided such investments, loans and
advances at any one time outstanding do not exceed the sum of (i)
$100,000,000 plus (ii) the amount (if any) by which (A) $50,000,000 exceeds
(B) the aggregate amount outstanding on investments, loans and advances
permitted solely by virtue of subsection (h) of this Section;
(g) acquisitions, provided that (i) no Default or Event of Default
exists or would exist after giving effect to such acquisition, (ii) the
board of directors or other governing body of such Person whose property or
Voting Stock is being so acquired has approved the terms of such
acquisition and (iii) prior to each acquisition requiring consideration
from the Company and its Subsidiaries in excess of $10,000,000, (x) there
is delivered to the Banks a certificate, signed by the chief financial
officer of the Company, demonstrating that, taking into account such
acquisition and its effects, the Company will remain in compliance with the
covenants set forth in Sections 7.6, 7.7 and 7.8 hereof as of the date of
such acquisition and, based on projections believed by the Company to be
reasonable, at all times during the twelve month period following such date
and certifying that no Default or Event of Default has occurred or is
continuing hereunder as of the date of and immediately after giving effect
to such acquisition and (y) such certificate is true and correct; and
(h) any other investments, loans and advances not otherwise permitted
by this Section in an aggregate amount not to exceed $50,000,000."
Section 2.5. Section 7 of the Credit Agreement shall be amended by adding
the following new Section 7.18 at the end thereof:
"Section 7.18. Year 2000 Assessment. The Company shall take all
actions necessary and commit adequate resources to assure that its
computer-based and other systems (and those of all Subsidiaries) are able
to effectively process dates, including dates before, on and after January
1, 2000, without experiencing any Year 2000 Problem that could cause a
material adverse effect on the business or financial affairs of the Company
(or of the Company and its Subsidiaries taken on a consolidated basis). At
the request of the Banks, the Company will provide the Banks with written
assurances and substantiations (including, but not limited to, the results
of internal or external audit reports prepared in the ordinary course of
business) reasonably acceptable to the Banks as to the capability of the
Company and its Subsidiaries to conduct its and their businesses and
operations before, on and after January 1, 2000, without experiencing a
Year 2000 Problem causing a material adverse effect on the business or
financial affairs of the Company (or of the Company and its Subsidiaries
taken on a consolidated basis)."
Section 2.6. The portion of the Banks' signature pages to the Credit
Agreement under the column headed "Amount of Commitments" shall be amended in
its entirety and as so amended shall read as follows:
Amount and
Percentage of
Commitments: Bank:
$35,000,000 Xxxxxx Trust and Savings Bank
(28%)
$25,000,000 The First National Bank of Chicago
(20%)
$15,000,000 LaSalle National Bank
(12%)
$30,000,000 The Northern Trust Company
(24%)
Section 3. Conditions Precedent.
The effectiveness of this Amendment is subject to the satisfaction of all
of the following conditions precedent:
Section 3.1. The Company, the Agent and the Banks (including the New Bank)
shall have executed this Amendment (such execution may be in several
counterparts and the several parties hereto may execute on separate
counterparts).
Section 3.2. The Agent shall have received (i) for delivery to Bank of
America National Trust and Savings Association and The Northern Trust Company
(each an "Amending Bank") new Revolving Credit Notes payable to the order of
each Amending Bank in the face principal amount of its Commitment after giving
effect to this Amendment, such new Revolving Credit Notes to constitute
"Revolving Credit Notes" for all purposes of the Credit Agreement upon the
Agent's receipt of the same for each Amending Bank and (ii) for return to the
Company the existing Revolving Credit Notes heretofore issued to each Amending
Bank.
Section 3.3. The Agent shall have received an executed Guarantors' Consent
in the form attached hereto.
Section 3.4. The Banks shall have received copies (executed or certified as
may be appropriate) of all legal documents or proceedings taken in connection
with the execution and delivery of this Amendment and the other instruments and
documents contemplated hereby and an opinion of counsel to the Company in a form
satisfactory to the Banks.
Section 3.5. Each of the representations and warranties set forth in
Section 5 of the Credit Agreement shall be true and correct (except that the
representations contained in Section 5.4 of the Credit Agreement shall be deemed
to refer to the most recent financial statements of the Company delivered to the
Banks pursuant to Section 7.14 of the Credit Agreement). The Company further
represents and warrants that the Guarantors listed on Exhibit A hereto
constitute all of the Company's Domestic Subsidiaries existing as of the date
hereof
Section 3.6. The Company shall be in full compliance with all of the terms
and conditions of the Credit Agreement and no Event of Default or Default shall
have occurred and be continuing thereunder or shall result after giving effect
to this Amendment.
Section 4. Reallocation of Eurocurrency Loans.
If upon this Amendment becoming effective there are any Loans outstanding,
but in that event anything contained in the Credit Agreement to the contrary
notwithstanding, substantially concurrent with this Amendment becoming effective
there shall be such nonratable Borrowings and repayments under the Credit
Agreement, as amended hereby, so that, after giving effect thereto, each Bank
holds its ratable share (with ratably for such purposes to be determined in
accordance with the Banks' respective Commitments after giving effect to this
Amendment) of the total of the Loans then outstanding; provided, however, that
if there are any Eurocurrency
Loans outstanding on such date, then in that event and to that extent nonratable
Loans and repayments shall not, unless the Company otherwise elects, it being
understood that such an election will be subject to payment of any amount due
the Banks (under Section 2.5 hereof) be made on such date but rather shall be
made on the last day of each interest period applicable to each Eurocurrency
Loan, all to the end that all Loans outstanding under the Credit Agreement shall
be made ratably from each Bank according to its Commitment in effect after given
effect to this Amendment at the earliest date on which the same can be
accomplished without requiring that a Eurocurrency Loan be paid on a date other
than the last day of the interest period applicable thereto. If during such
period, additional Borrowings are requested, the Company acknowledges and agrees
that it shall only request Borrowings in amounts which will permit the Loans for
each such Borrowing to be made ratably from each Bank according to its
Commitment in effect after giving effect to this Amendment and which will not
cause such Loans to exceed any Bank's Commitment. The parties hereto understand
and acknowledge and agree that the percentage of the New Bank's Commitments in
use in the form of Eurocurrency Loans may, upon the effectiveness of this
Amendment, be less than the percentage of the other Banks' Commitments in use in
the form of Eurocurrency Loans. The Commitment Fee accruing during this period
shall be allocated among the Banks in accordance with their Commitments after
giving effect to this Amendment.
Section 5. Miscellaneous.
Section 5.1. Except as specifically amended herein the Credit Agreement
shall continue in full force and effect. Reference to this specific Amendment
need not be made in any note, document, letter, certificate, the Credit
Agreement itself, the Revolving Credit Notes, the Guaranty Agreement or any
communication issued or made pursuant to or with respect thereto, any reference
to the Credit Agreement in any of such being sufficient to refer to the Credit
Agreement as amended hereby.
Section 5.2. The Company shall pay all fees and expenses (including
attorneys' fees) incurred by Xxxxxx Trust and Savings Bank and its counsel
incurred in connection with the drafting and preparation, and supervision of
legal matters in connection with this Amendment.
Section 5.3. This Amendment may be executed in any number of counterparts,
and by the different parties on different counterparts, all of which taken
together shall constitute one and the same Agreement. Any of the parties hereto
may execute this Amendment by signing any such counterpart and each of such
counterparts shall for all purposes be deemed to be an original. This Amendment
shall be governed by the internal laws of the State of Illinois.
Dated as of this 15th day of December, 1998.
AMCOL International Corporation (formerly known as
American Colloid Company)
By /s/ Xxxx X. Xxxxxxx
Its Senior Vice President
Accepted and agreed to as of the day and year last above written.
Xxxxxx Trust and Savings Bank,
individually and as Agent
By /s/ Xxx Xxxxxxxx
Its Vice President
The First National Bank of Chicago
By /s/ Xxxxx Xxxxxx
Its Senior Vice President
LaSalle National Bank
By /s/ Xxxxxxx Xxxx
Its Senior Vice President
The Northern Trust Company
By /s/ Xxxxxx X. Xxxxxxx
Its Vice President
Bank of America National Trust
and Savings Association
By /s/ Xxxxxx Xxxxx
Its Vice President
Guarantors' Consent
The undersigned are party to that certain Joint and Several Guaranty
Agreement dated as of October 4, 1994 (as supplemented, the "Guaranty
Agreement"), and hereby consent to the amendment of the Credit Agreement as set
forth above and confirm that such Guaranty Agreement and all of the
undersigneds' obligations thereunder remain in full force and effect. Without
limiting the generality of the foregoing, the undersigned acknowledge and agree
that all references to the "Credit Agreement" in the Guaranty Agreement shall be
deemed references to the Credit Agreement as amended by the Fourth Amendment to
Credit Agreement and further agree that any reference in such Guaranty to the
Company's former name, "American Colloid Company" shall be amended to be
references to the Company's new name "AMCOL International Corporation". The
undersigned further agree that the consent of the undersigned to any further
amendments of the Credit Agreement shall not be required as a result of this
consent having been obtained, except to the extent, if any, required by the
Guaranty Agreement referred to above.
Dated as of December __, 1998.
Ameri-Co Carriers, Inc.
By /s/ Xxxx X. Xxxxxxx
Its President
Nationwide Freight Service, Inc.
By /s/ Xxxx X. Xxxxxxx
Its President
Chemdal Corporation
By /s/ Xxxx X. Xxxxxxx
Its Treasurer
Superior Absorbents, Inc.
By /s/ Xxxx X. Xxxxxxx
Its Treasurer
Montana Minerals Development Company
By /s/ Xxxx X. Xxxxxxx
Its Treasurer
Chemdal International Corporation
By /s/ Xxxx X. Xxxxxxx
Its Treasurer
Regeneration Technologies, Inc.
By /s/ Xxxx X. Xxxxxxx
Its Treasurer
Colloid Environmental Technologies
Company
By /s/ Xxxx X. Xxxxxxx
Its Treasurer
American Colloid Company (f.k.a. AES
Acquisition, Inc.and American
Colloid Mineral Company)
By /s/ Xxxx X. Xxxxxxx
Its Treasurer
Volclay International Corporation
By /s/ Xxxx X. Xxxxxxx
Its Treasurer
Nanocor, Inc.
By /s/ Xxxx X. Xxxxxxx
Its Treasurer
Exhibit A
Domestic Subsidiaries
Name Jurisdiction of Incorporation
Ameri-Co Carriers, Inc. Nebraska
Nationwide Freight Service, Inc. Nebraska
Chemdal Corporation Delaware
Superior Absorbents, Inc. Delaware
Montana Minerals Development Company Montana
Chemdal International Corporation Delaware
Regeneration Technologies, Inc. (f.k.a. Amcol Delaware
International Corp.)
Colloid Environmental Technologies Company Delaware
American Colloid Company (f.k.a. AES Delaware
Acquisition, Inc. and American Colloid Mineral Company)
Nanocor, Inc. Delaware
Volclay International Corporation Delaware
