EXHIBIT 10.2
COMFORMED COPY
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT is dated as of March 9, 2007
(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 Harris N.A. ("Harris"), 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 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. The introductory paragraph to the Credit Agreement is
hereby amended by deleting the phrase "Colin Stewart Minchem Limited, a United
Kingdom corporation ("Colin Stewart" and" inserting in its place the phrase
"AMCOL Minerals Europe, Ltd. (f/k/a Colin Stewart Minchem Limited), a United
Kingdom corporation ("AMCOL Minerals Europe" and".
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
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 outstanding to AMCOL
Minerals Europe shall not exceed (euro)10,000,000, (iv) the sum
of the aggregate principal amount of all Loans denominated in
Euro outstanding to CETCO Europe shall not exceed
(euro)10,000,000 and the sum of the aggregate principal amount
of all Loan denominated in Pound Sterling to CETCO Europe shall
not exceed (pound)15,000,000, (v) the sum of the aggregate
principal amount of all Loans outstanding to the Polish Borrower
shall not exceed (euro)15,000,000 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 1.15 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
$200,000,000 will require the approval of the Required Lenders,
and
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Section 2.3. The defined terms "EBITDA" and "Revolving Credit
Termination Date" contained in Section 5.1 of the Credit Agreement are hereby
amended in their entirety and as so amended shall read as follows:
"EBITDA" means, with reference to any period, Net Income
for such period plus 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, and (c) depreciation of fixed assets and amortization of
intangible assets for such period plus 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.
"Revolving Credit Termination Date" means April 1, 2012,
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 2.4. Section 5.1 of the Credit Agreement is hereby
further amended by (i) deleting the defined term "Colin Stewart" in its entirety
and (ii) inserting the following new defined terms in the proper alphabetical
order:
"AMCOL Minerals Europe" is defined in the introductory
paragraph of this Agreement.
"Note Purchase Agreement" means the Note Purchase
Agreement dated on or about April 2, 2007 by and among AMCOL
International Corporation and the Purchasers from time to time
party thereto.
"Series 2007-A Notes" shall have the meaning set forth
in the Note Purchase Agreement.
Section 2.5 Section 8.7(c) and (d) of the Credit Agreement are each
hereby deleted in their entirety and subsections (c), (d) and (e) are inserted
in their place as follows:
(c) Funded Debt (other than the Revolving Loans and
Funded Debt permitted by clause (d) below) of the Company and
its Subsidiaries in an aggregate principal amount at any one
time outstanding of not more than 25% of the total assets of the
Company and its Subsidiaries as shown on the Company's most
recent financial statements delivered pursuant to Section 8.5
hereof;
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(d) unsecured Funded Debt of the Company represented
by the Series 2007-A Notes in an aggregate outstanding principal
amount not to exceed $75,000,000 minus any principal repayments
thereof; and
(e) unsecured Current Debt of the Company.
Section 2.6. Section 8.22 of the Credit Agreement is hereby amended
in its entirety and as so amended shall read as follows:
Section 8.22. Contingent Obligations. The Company will
not and will not permit any Subsidiary to become or be liable in
respect of any Contingent Obligation except (i) the Guaranties
hereunder, (ii) Contingent Obligations of the Guarantors with
respect to the Funded Debt permitted by Section 8.7(d) hereof,
and (iii) Contingent Obligations of the Company which are
limited in amount to a stated maximum dollar exposure in the
aggregate not greater than an amount equal to 5% of the total
assets of the Company and its Subsidiaries as shown on the
Company's most recent financial statements delivered pursuant to
Section 8.5 hereof and included in Current Debt or Consolidated
Funded Debt.
Section 2.7. The Company has requested that from and after the
Effective Time the aggregate Revolving Credit Commitments of the Lenders be
increased by $30,000,000, with such increase being allocated to certain of the
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 to make
(nonratably if necessary, but otherwise subject to the terms and conditions of
the Credit Agreement as amended hereby) a Base Rate Loan 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.
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.
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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 March 9, 2007 (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 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;
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(d) 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
(e) 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 5.6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF ILLINOIS.
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COMFORMED COPY
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/ Gary L. Castagna
-----------------------------------
Name: Gary L. Castagna
Title: Senior Vice President and Chief
Financial Officer
CETCO EUROPE LTD.
By /s/ Gary L. Castagna
-----------------------------------
Name: Gary L. Castagna
Title: Director
AMCOL MINERALS EUROPE, LTD. (f/k/a
Colin Stewart Minchem Limited)
By /s/ Gary L. Castagna
-----------------------------------
Name: Gary L. Castagna
Title: Director
CETCO POLAND SP. Z.O. O
By /s/ Gary L. Castagna
-----------------------------------
Name: Gary L. Castagna
Title: Authorized Signatory
VOLCLAY PTY. LTD.
By /s/ Gary L. Castagna
-----------------------------------
Name: Gary L. Castagna
Title: Director
[Second Amendment to Credit Agreement]
S-1
"GUARANTORS"
AMCOL INTERNATIONAL CORPORATION
By /s/ Gary L. Castagna
-----------------------------------
Name: Gary L. Castagna
Title: Senior Vice President and Chief
Financial Officer
AMERI-CO LOGISTICS, INC.
By /s/ Gary L. Castagna
-----------------------------------
Name: Gary L. Castagna
Title: Treasurer
AMERICAN COLLOID COMPANY
By /s/ Gary L. Castagna
-----------------------------------
Name: Gary L. Castagna
Title: Treasurer
COLLOID ENVIRONMENTAL TECHNOLOGIES COMPANY
By /s/ Gary L. Castagna
-----------------------------------
Name: Gary L. Castagna
Title: Treasurer
AMCOL SPECIALTIES HOLDINGS, INC.
By /s/ Gary L. Castagna
-----------------------------------
Name: Gary L. Castagna
Title: Treasurer
CETCO OILFIELD SERVICES COMPANY
By /s/ Gary L. Castagna
-----------------------------------
Name: Gary L. Castagna
Title: Treasurer
[Second Amendment to Credit Agreement]
S-2
"LENDERS"
HARRIS N.A., in its individual capacity as
a Lender, as L/C Issuer, and as
Administrative Agent
By /s/ Danjuma G. Gibson
-----------------------------------
Name: Danjuma G. Gibson
Title: Vice President
[Second Amendment to Credit Agreement]
S-3
WELLS FARGO BANK, N.A.
By /s/ Daniel Lange
-----------------------------------
Name: Daniel Lange
Title: Senior Vice President
[Second Amendment to Credit Agreement]
S-4
BANK OF AMERICA, N.A.
By /s/ Daniel R. Petrik
-----------------------------------
Name: Daniel R. Petrik
Title: Senior Vice President
[Second Amendment to Credit Agreement]
S-5
THE NORTHERN TRUST COMPANY
By /s/ Brandon Rolek
-----------------------------------
Name: Brandon Rolek
Title: Vice President
[Second Amendment to Credit Agreement]
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CONFORMED COPY
SCHEDULE 1
COMMITMENTS
REVOLVING CREDIT
NAME OF LENDER COMMITMENT SWING LINE SUBLIMIT
- -------------------------- ------------------ -------------------
Harris N.A. $ 45,000,000 $ 10,000,000
Wells Fargo Bank N.A. $ 40,000,000
Bank of America, N.A. $ 35,000,000
The Northern Trust Company $ 30,000,000
TOTAL $ 150,000,000 $ 10,000,000
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