EXHIBIT 10.13
FIRST AMENDMENT TO NOTE AGREEMENT
AND LIMITED WAIVER
This First Amendment to Note Agreement and Limited Waiver (the "Agreement") is
entered into as of this 30th day of September, 1996, between AMCOL INTERNATIONAL
CORPORATION (formerly known as American Colloid Company), a Delaware corporation
(the "Company") and PRINCIPAL MUTUAL LIFE INSURANCE COMPANY ("Principal
Mutual").
RECITALS:
The Company and Principal Mutual entered into a Note Agreement dated as of
October 1, 1994 (the "Note Agreement"). In accordance with the terms of the Note
Agreement, the Company issued $25,000,000 of its 7.36% Series A Senior Notes due
June 30, 1999, $10,000,000 of its 7.83% Series B Senior Notes due June 30, 2002,
$15,000,000 of its 8.10% Series C Senior Notes due June 30, 2006, and
$17,140,000 of its 9.68% Series D Senior Notes due November 1, 1999
(collectively, the "Notes"). Principal Mutual is the holder of all of the Notes.
Capitalized terms used but not defined herein shall have the meaning given such
term in the Note Agreement.
By letter dated August 8, 1996, the Company notified Principal Mutual that it is
in violation of Section 5.16(g) of the Note Agreement with regard to excess
advances to Restricted Subsidiaries. The Company has requested a waiver of said
default and has proposed that Section 5.16 be modified.
Pursuant to the Company's request, Principal Mutual is willing to amend the Note
Agreement subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth above and in
consideration of the mutual covenants and conditions herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and Principal Mutual hereby agree as follows:
1. Recitals Incorporated. The recitals set forth above are incorporated herein
by reference.
2. Limited Waiver. Principal Mutual hereby waives compliance with Section
5.16(g) of the Note Agreement for the period June 1, 1996 through the date of
this Agreement.
3. Amendments to Note Agreement.
3.1 Section 5.16(g) is deleted in its entirety and the following is
inserted in lieu thereof:
"(g) investments in, and loans and advances to, Restricted
Subsidiaries (other than Subsidiary Guarantors) not in excess of
$50,000,000 at any one time outstanding;"
3.2 Section 5.16(i) is deleted in its entirety and the following is
inserted in lieu thereof:
"(i) any other investments, loans and advances in an aggregate amount
not to exceed the lesser of (A) $25,000,000 or (B) the difference
between (1) $50,000,000 less (2) the amount of outstanding investments
permitted by subsection (g) hereof."
3.3 Section 5.15(f)(i) is deleted and the following inserted in lieu
thereof:
"(f)...(i) the information and computations (in sufficient detail)
required in order to establish whether the Company was in compliance
with the requirements of Section 5.6 through 5.14 and 5.16 and 5.17,
inclusive, at the end of the period covered by the financial
statements then being furnished, and"
3.4 Section 6.1(f) is deleted and the following inserted in lieu thereof:
"(f) Default shall occur in the observance or performance of any
covenant or agreement contained in Section 5.6 through 5.14 or 5.16 or
5.17 hereof; or"
4. Conditions Precedent. The effectiveness of this Agreement is subject to
satisfaction of all the following conditions precedent:
4.1 Delivery to Principal Mutual of all Guaranty Agreements contemplated by
Section 1.3 from Subsidiary Guarantors, including, but not limited to
Volclay International Corporation, a Delaware corporation, and Regeneration
Technologies, Inc. (formerly known as AMCOL International, Inc.)
4.2 Principal Mutual shall have received executed copies of all documents
and proceedings taken in connection with the execution and delivery of this
Agreement and the other instruments and documents contemplated hereby and
an opinion of counsel to the Company and Volclay International and
Regeneration Technologies, Inc., in a form and substance satisfactory to
Principal Mutual.
5. Representations of the Company. The Company, by its execution and delivery
of this Agreement, hereby represents and warrants to Principal Mutual as
follows:
5.1 As of the date hereof, no Default or Event of Default under the Note
Agreement, or under any other agreement to which the Company is subject,
exists or is continuing.
5.2 The representations and warranties of the Company referred to in
Section 3 of the Note Agreement are true and correct and complete in all
material respects as if made on the date hereof, except as to those
representations and warranties made as of the specific date, which are true
and correct and materially complete as of such date.
5.3 No dissolution proceedings with respect to the Company have been
commenced or are contemplated, and there has been no material adverse
change in the business, condition or operation (financial or otherwise) of
the Company taken as a whole since October 4, 1994.
5.4 This Agreement has been duly authorized, executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the
Company.
6. Miscellaneous.
6.1 Except as expressly set forth herein, the terms of this Agreement shall
not operate as a waiver by Principal Mutual of any of the provisions of, or
otherwise prejudice, remedies or powers under the Note Agreement, the Notes
or applicable law and shall not operate as a waiver of or otherwise
prejudice any rights it may have against any other Person. Except as set
forth herein, none of the terms or provisions of either the Note Agreement
or the Note shall be modified hereby, and each of the Note Agreement and
the Notes, as modified herein, shall continue in full force and effect and
are hereby ratified and affirmed.
6.2 All headings and captions preceding the text of the several sections of
this Agreement are intended solely for convenience of reference and shall
not constitute a part of this Agreement nor shall they affect its meaning,
construction or effect.
6.3 This Agreement embodies the entire agreement and understanding among
the Company and Principal Mutual with regard to the matters set forth
herein, and supersedes all prior agreements and undertakings relating to
such matters.
6.4 This Agreement shall be governed by, and construed and enforced in
accordance with Illinois law.
6.5 This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed an original
and all of which taken together shall constitute one and the same
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their authorized officers as of the date first written above.
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxx
Its: Counsel
By: /s/ Xxxxxxx X. Xxxxxxxxx
Its: Director - Securities Investment
AMCOL INTERNATIONAL CORPORATION
(formerly known as American Colloid Company)
By: /s/ Xxxx X. Xxxxxxx
Its: Sr. Vice President
cc: Xxxxxx Xxxxxxx
Xxxxx Xxxxx
