First Amendment to Credit Agreement
Exhibit 10.1
First Amendment to Credit Agreement
This First Amendment to Credit Agreement is dated as of October 22, 2013 (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 BMO Xxxxxx Bank N.A. 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 January 20, 2012 (as amended, the “Credit Agreement”); and
B.The Company has asked the Lenders and the Administrative Agent to amend the definition of EBITDA contained in 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 defined term “EBITDA” contained in Section 5.1 of the Credit Agreement is hereby amended in its entirety and as so amended shall read as follows:
“EBITDA” means, with reference to any period, Net Income for such period plus (A) the sum of all amounts deducted in arriving at such Net Income amount in respect of (a) Interest Expense for such period, (b) federal, state, and local income taxes for such period, (c) depreciation of fixed assets and amortization of intangible assets for such period, and (d) other non-cash charges (other than for deferred tax expenses and additions to bad debt reserves or bad debt expenses and any noncash charge that results from the write-down or write-off of accounts receivables) for such period plus (B) an amount calculated by the Company and approved by the Administrative Agent in its reasonable discretion equal to the EBITDA of the Persons or assets which are the subject of an Acquisition consummated during such period as if such Acquisition was consummated on the first day of such period to the extent not subsequently sold or otherwise disposed of during such period; provided that any cash payment made with respect to any non-cash charges added back in computing EBITDA for any prior period pursuant to clause (d) above shall be subtracted in computing EBITDA for the period in which such cash payment is made.
Section 2.2. Schedule I to Exhibit F of the Credit Agreement is hereby amended in its entirety and as so amended shall read as set forth as Addendum I to this Amendment.
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.
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.
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Article IV
Conditions Precedent
Section 4.1. Effectiveness. This Amendment shall become effective as of September 30, 2013 upon receipt by the Administrative Agent of executed counterparts hereof from the Borrowers, the Guarantors, the Administrative Agent, and the Required Lenders.
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. 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. Delivery of a counterpart hereof by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “PDF” file) shall be effective as delivery of a manually executed counterpart hereof.
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 5.6. Governing Law. This Amendment shall be construed in accordance with and governed by the law of the State of Illinois.
[Remainder of Page Intentionally Left Blank]
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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.
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“Borrowers”
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AMCOL International Corporation
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By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President and Chief Financial Officer
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CETCO Europe Ltd.
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By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Director
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Amcol Minerals Europe Ltd.
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By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Director
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Cetco-Poland, Cetco Spółka Z Ograniczoną Odpowiedzialnością S.K.A.
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By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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AMCOL Australia Pty Ltd.
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By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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“Guarantors”
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AMCOL International Corporation
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By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President and Chief Financial Officer
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CETCO Energy Services Company LLC
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By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Treasurer
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American Colloid Company
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By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President and Treasurer
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Colloid Environmental Technologies Company LLC
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By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Treasurer
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AMCOL International Holdings Corporation
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By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President and Treasurer
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Volclay International LLC
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By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President and Treasurer
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“Lenders”
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BMO Xxxxxx Bank N.A. in its individual capacity as a Lender, as L/C Issuer, Swing Line Lender, and as Administrative Agent
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By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Director
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Xxxxx Fargo Bank, N.A.
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By /s/ Xxxxx X. Cable
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Name: Xxxxx X. Cable
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Title: Vice President
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Bank of America, N.A.
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By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Senior Vice President
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The Northern Trust Company
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By /s/ M. Xxxxx Xxxxxxx
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Name: M. Xxxxx Xxxxxxx
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Title: Second Vice President
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RBS Citizens, N.A.
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By /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Senior Vice President
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HSBC Bank USA, N.A.
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By /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Vice President
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First Amendment to AMCOL International Corporation Credit Agreement
Addendum I
Schedule I
to Exhibit F
AMCOL International Corporation
Compliance Calculations
for Credit Agreement dated as of January 20, 2012
Calculations as of _____________, _______
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For Period Ending
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Covenant 8.20(a) - Leverage Ratio
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Debt:
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Indebtedness
_________________
_________________
_________________
_________________
_________________
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Debt
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EBITDA (information for past 4 quarters):
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Net income
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Interest expense
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Income tax expense
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Depreciation and amortization expense
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EBITDA of acquisitions, as approved by Administrative Agent
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Non-cash charges
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minus Non-cash gains
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EBITDA
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Leverage Ratio (Debt/EBITDA)
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Leverage Ratio covenant limitation not to exceed:
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Is the company in compliance?
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Covenant 8.20(b) - Net Worth
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Net Worth - current period
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Minimum Net Worth required
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Minimum Net Worth at last measurement period
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25% of Net Income
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25% of Net Cash Proceeds of the issuance of equity securities
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Minimum Net Worth required
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Is the company in compliance?
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Covenant 8.20(c) - Interest Coverage Ratio
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EBITDA
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Interest expense
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EBITDA/Interest expense
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Covenant limitation - not less than
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Is the company in compliance?
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