Exhibit 10.2
OIL-DRI CORPORATION OF AMERICA
THIRD AMENDMENT
Dated as of January 27, 2006
To
Note Purchase Agreement
Dated as of April 15, 1998
Re: $25,000,000 6.55% Senior Notes
due April 15, 2013
Third Amendment to Note Purchase Agreement
This Third Amendment dated as of January 27, 2006 (this "Third Amendment")
to the Note Purchase Agreement dated as of April 15, 1998 is among Oil-Dri
Corporation of America, a Delaware corporation (the "Company"), and each of the
institutions which is a signatory to this Third Amendment (collectively, the
"Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered into the
Note Purchase Agreement as of April 15, 1998 (the "Note Purchase Agreement") and
further have entered into a First Amendment to Note Purchase Agreement dated as
of January 15, 2001 (the "First Amendment"), and a Second Amendment to Note
Purchase Agreement dated as of July 15, 2002 (the "Second Amendment"). The
Company has heretofore issued the $25,000,000 6.55% Senior Notes due April 15,
2013 (the "Notes") pursuant to the Note Purchase Agreement. The Noteholders are
the holders of 100% of the outstanding principal amount of the Notes.
B. The Company and the Noteholders now desire to amend the Note Purchase
Agreement (as amended by the First Amendment and the Second Amendment) in the
respects, but only in the respects, hereinafter set forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreement unless defined herein or the
context shall otherwise require.
D. All requirements of law have been fully complied with and all other acts
necessary to made this Third Amendment a valid, legal and binding instrument
according to its terms for the purposes herein expressed have been done or
performed.
Now, THEREFORE, the Company and the Noteholders, in consideration of good
and valuable consideration, the receipt sufficiency of which is hereby
acknowledged, do hereby agree as follows:
SECTION 1. AMENDMENTS. The Note Purchase Agreement is amended as follows:
1.1. New Section 9.7 is added as follows:
Section 9.7. Subsidiary Guaranties. The Company will at all times
cause each Guarantor Subsidiary to be a party to a Guaranty Agreement.
1.2. In Section 11(j), the period at the end of such section is deleted and
"; or" substituted in its place, and the following new Section 11(k) is added:
(k) (i) the obligations of any Guarantor Subsidiary contained in any
Guaranty Agreement shall cease to be in full force and effect or shall be
declared by a court or governmental authority of competent jurisdiction to
be void, voidable or unenforceable against any such Guarantor Subsidiary;
(ii) the Company or any Guarantor Subsidiary shall contest the validity or
enforceability of any Guaranty Agreement against any such Guarantor
Subsidiary, or (iii) the Company or any Guarantor Subsidiary shall deny
that such Guarantor Subsidiary has any further liability or obligation
under any Guaranty
Agreement unless in each case the Guaranty Agreement is replaced by an
equivalent new Guaranty Agreement lacking the defect at issue.
1.3. In Schedule B, a new definition of "Guaranty Agreement" is added as
follows:
"Guaranty Agreement" means, a Guaranty Agreement made by each
Guarantor Subsidiary in favor of the holders of the Notes in the form of
Exhibit A attached hereto. (as the same may be amended, modified or
supplemented from time to time).
1.4. In Schedule B, a new definition of "Guarantor Subsidiary" is added as
follows:
"Guarantor Subsidiary" means each Subsidiary that is party to a
Guaranty of any Debt of the Company (other than the Notes).
1.5. In Schedule B, the definition of "Priority Debt" is hereby deleted in
its entirety an the following is hereby substituted therefor:
"Priority Debt" means, without duplication, the sum of (a) all Debt of
the Company secured by any Lien permitted under Section 10.5(k), and (b)
all Debt of Restricted Subsidiaries (except (i) Debt held by the Company or
a Wholly-Owned Restricted Subsidiary or (ii) any Guaranty by any Subsidiary
of any Debt of the Company so long as such Subsidiary is party to a
Guaranty Agreement).
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
as follows:
2.1. The execution, delivery and performance of this Third Amendment have
been duly authorized by all requisite action and this Third Amendment has been
duly executed and delivered by authorized officers of the Company and is the
valid obligation of the Company, legally binding upon and enforceable against
the Company in accordance with its terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
2.2. The execution and delivery of this Third Amendment by the Company, and
of the Guaranty Agreement by each Guarantor Subsidiary and the fulfillment of or
the compliance with the terms and provisions hereof and thereof will not
conflict with, or result in a breach of the terms, conditions or provisions of,
or constitute a default under, or result in any violation of, or result in the
creation of any Lien upon any of the properties or assets of the Company or any
of its Subsidiaries pursuant to, the certificate of incorporation or articles of
organization (as the case may be), the by-laws or limited liability company
agreement (as the case may be) of the Company or any of its Subsidiaries, any
award of any arbitrator or any agreement (including any agreement with
stockholders or holders of membership interests (as the case may be) of the
Company or any such Subsidiary or Persons with director or indirect ownership
interests in stockholders or holders of membership interests (as the case may
be) of the Company), instrument, order, judgment, decree, statute, law, rule or
regulation to which the Company or any of its Subsidiaries is subject.
2.3. After giving effect to this Third Amendment, no Default or Event of
Default exists.
SECTION 3. MISCELLANEOUS
3.1. This Third Amendment shall be construed in connection with and as part
of the Note Purchase Agreement and except as modified and expressly amended by
this Third Amendment, all terms, conditions and covenants contained in the Note
Purchase Agreement, the First Amendment thereto, the Second Amendment thereto,
and the Notes are hereby ratified and shall be and remain in full force and
effect.
3.2. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this Third Amendment
may refer to the Note Purchase Agreement without making specific reference to
this Third Amendment but nevertheless all such references shall include this
Third Amendment unless the context otherwise requires.
3.3. The descriptive headings of the various sections or parts of this
Third Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
3.4. This Third Amendment shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the State
of Illinois excluding choice-of-law principles of the law of such State that
would require the application of the laws of a jurisdiction other than such
State.
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3.5. The execution hereof by the parties hereto shall constitute a contract
among such parties for the uses and purposes hereinabove set forth, and this
Third Amendment may be executed in any number of counterparts, each executed
counterpart constituting an original, but all together only one agreement.
OIL-DRI CORPORATION OF AMERICA
By: /s/ Jeffrey M. Libert
-----------------------------
Jeffrey M. Libert, Vice President,
Finance & Treasurer
Accepted and Agreed to:
TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA
By: /s/ Estelle D. Simsolo
-----------------------------
Estelle D. Simsolo
Director, Private Placements
PRUDENTIAL RETIREMENT INSURANCE
AND ANNUITY COMPANY
By:Prudential Investment Management, Inc.,
as investment manager
By: /s/ Anthony Colette
------------------------------
Anthony Coletta
Vice President
EXHIBIT A TO NOTE PURCHASE AGREEMENT
[FORM OF GUARANTY AGREEMENT]
GUARANTY AGREEMENT
This AGREEMENT (the "Guaranty"), dated as of [ ], is made
-----------------
by each of the parties signatory hereto as a "Guarantor" (each, a "Guarantor")
in favor of the holders of the Notes (as defined below) from time to time (the
"Noteholders").
WITNESSETH:
WHEREAS, Oil-Dri Corporation of America, a Delaware corporation (the
"Company"), and each of the Noteholders have heretofore entered into the Note
Purchase Agreement as of April 15, 1998, as amended by the First Amendment to
Note Purchase Agreement dated as of January 15, 2001 (the "First Amendment"),
the Second Amendment to Note Purchase Agreement dated as of July 15, 2002 (the
"Second Amendment") and the Third Amendment to Note Purchase Agreement, dated as
of January 27, 2006 ((the "Third Amendment"); the Note Purchase Agreement, as so
amended and as further amended from time to time, being referred to as the "Note
Purchase Agreement"). The Company has heretofore issued the $25,000,000 6.55%
Senior Notes due April 15, 2013 (the "Notes") pursuant to the Note Purchase
Agreement.
WHEREAS, the Third Amendment requires that the Company cause each Guarantor
Subsidiary to execute and deliver this Guaranty for the benefit of the
Noteholders.
NOW THEREFORE, for and in consideration of the premises and mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, each Guarantor, intending
to be legally bound, does hereby covenant and agree as follows:
1. DEFINITIONS; RECITALS. Capitalized terms that are used in this Guaranty
and not defined in this Guaranty shall have the meaning ascribed to them in the
Note Purchase Agreement. The recitals in this Guaranty are incorporated into
this Guaranty.
2. THE GUARANTY.
2A. Guaranty of Payment. Each Guarantor, jointly and severally, absolutely,
unconditionally and irrevocably guarantees the full and prompt payment in United
States currency when due (whether at maturity, a stated prepayment date or
earlier by reason of acceleration or otherwise) and at all times thereafter, of
all of the indebtedness, existing on the date hereof or arising from time to
time hereafter, whether direct or indirect, joint or several, actual, absolute
or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, of the Company to
any Noteholder under or in respect of the Note Purchase Agreement and the Notes,
including, without limitation, the principal of and interest (including, without
limitation, interest accruing before, during or after any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, liquidation
or dissolution proceeding, and, if interest ceases to accrue by operation of law
by reason of any such proceeding, interest which otherwise would have accrued in
the absence of such proceeding, whether or not allowed as a claim in such
proceeding) on the Notes or any Make-Whole Amount (collectively, the "Guarantied
Obligations"). This is a continuing guaranty of payment and not of collection.
Notwithstanding the foregoing, the aggregate amount of any Guarantor's liability
under this Guaranty shall not exceed the maximum amount that such Guarantor can
guaranty without violating, or causing this Guaranty or such Guarantor's
obligations under this Guaranty to be void, voidable or otherwise unenforceable
under, any fraudulent conveyance or fraudulent transfer law, including Section
548(a)(2) of the Bankruptcy Code (as hereinafter defined).
Upon an Event of Default, any Noteholder may, at its sole election and
without notice, proceed directly and at once against any Guarantor to seek and
enforce payment of, and to collect and recover, the Guarantied Obligations, or
any portion thereof, without first proceeding against the Company, any other
Guarantor or any other Person or against any security for the Guarantied
Obligations or for the liability of any such other Person or the Guarantor
hereunder. Each Noteholder shall have the exclusive right to determine the
application of payments and credits, if any, to such Noteholder from each
Guarantor, the Company or from any other Person on account of the Guarantied
Obligations or otherwise. This Guaranty and all covenants and agreements of each
Guarantor contained herein shall continue in full force and effect and shall not
be discharged until such a time as all of the Guarantied Obligations shall be
indefeasibly paid in full in cash.
2B. Obligations Unconditional. The obligations of each Guarantor under this
Guaranty shall be continuing, absolute and unconditional, irrespective of (i)
the invalidity or unenforceability of the Note Purchase Agreement, the Notes or
any other agreements, documents, certificates and instruments now or hereafter
executed or delivered by the Company or any other Guarantor or any other Person
in connection with the Note Purchase Agreement or any provision thereof; (ii)
the absence of any attempt by any Noteholder to collect the Guarantied
Obligations or any portion thereof from the Company, any other Guarantor or any
other Person or other action to enforce the same; (iii) any failure by any
Noteholder to acquire, perfect or maintain any security interest or lien in, or
take any steps to preserve its rights to, any security for the Guarantied
Obligations or any portion thereof or for the liability of any Guarantor
hereunder or the liability of the Company, any other Guarantor or any other
Person or any or all of the Guarantied Obligations; (iv) any defense arising by
reason of any disability (other than a defense of payment, unless the payment on
which such defense is based was or is subsequently invalidated, declared to be
fraudulent or preferential, otherwise avoided and/or required to be repaid to
the Company or a Guarantor, as the case may be, or the estate of any such party,
a trustee, receiver or any other Person under any bankruptcy law, state or
federal law, common law or equitable cause, in which case there shall be no
defense of payment with respect to such payment) of the Company or any other
Person liable on the Guarantied Obligations or any portion thereof; (v) any
Noteholder's election, in any proceeding instituted under Chapter 11 of Title 11
of the Federal Bankruptcy Code (11 U.S.C. ss.101 et seq.) (the "Bankruptcy
Code"), of the application of Section 1111(b)(2) of the Bankruptcy Code; (vi)
any borrowing or grant of a security interest to any Noteholder by the Company
as debtor-in-possession, or extension of credit, under Section 364 of the
Bankruptcy Code; (vii) the disallowance or avoidance of all or any portion of
any Noteholder's claim(s) for repayment of the Guarantied Obligations under the
Bankruptcy Code or any similar state law or the avoidance, invalidity or
unenforceability of any Lien securing the Guarantied Obligations or the
liability of any Guarantor hereunder or of the Company or any other guarantor of
all or any part of the Guarantied Obligations; (viii) any amendment to, waiver
or modification of, or consent, extension, indulgence or other action or
inaction under or in respect of the Note Purchase Agreement, the Notes or any
other agreements, documents, certificates and instruments now or hereafter
executed or delivered by the Company or any Guarantor or any other guarantor in
connection with the Note Purchase Agreement (including, without limitation, any
increase in the interest rate on the Notes); (ix) any change in any provision of
any applicable law or regulation; to the extent the same may be waived under any
such applicable law or regulation; (x) any order, judgment, writ, award or
decree of any court, arbitrator or governmental authority, domestic or foreign,
binding on or affecting any Guarantor, the Company or any other guarantor or any
of their assets; (xi) the certificate of incorporation or articles of
organization (as the case may be), or the by-laws or limited liability company
agreement (as the case may be) of any Guarantor or the Company or any other
guarantor; (xii) any mortgage, indenture, lease, contract, or other agreement
(including without limitation any agreement with stockholders), instrument or
undertaking to which any Guarantor or the Company is a party or which purports
to be binding on or affect any such Person or any of its assets; (xiii) any
bankruptcy, insolvency, readjustment, composition, liquidation or similar
proceeding with respect to the Company, any Guarantor or any other guarantor of
all or any portion of any Guarantied Obligations or any such Person's property
and any failure by any Noteholder to file or enforce a claim against the
Company, any Guarantor or any such other Person in any such proceeding; (xiv)
any failure on the part of the Company for any reason to comply with or perform
any of the terms of any other agreement with any Guarantor; or (xv) any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor (other than a defense of payment, unless the payment on
which such defense is based was or is subsequently invalidated, declared to be
fraudulent or preferential, otherwise avoided and/or required to be repaid to
the Company or a Guarantor, as the case may be, or the estate of any such party,
a trustee, receiver or any other Person under any bankruptcy law, state or
federal law, common law or equitable cause, in which case there shall be no
defense of payment with respect to such payment).
2C. Obligations Unimpaired. Each Guarantor agrees that each Noteholder is
authorized, without demand or notice, which demand and notice are hereby waived,
and without discharging or otherwise affecting the obligations of any Guarantor
hereunder (which shall remain absolute and unconditional notwithstanding any
such action or omission to act), from time to time to (i) renew, extend,
accelerate or otherwise change the time for payment of, or other terms relating
to, the Guarantied Obligations or any portion thereof, or otherwise modify,
amend or change the terms of the Note Purchase Agreement, the Notes or any other
agreements, documents, certificates and instruments now or hereafter executed or
delivered by the Company or any Guarantor in connection with the Note Purchase
Agreement; (ii) accept partial payments on the Guarantied Obligations; (iii)
take and hold security for the Guarantied Obligations or any portion thereof or
any other liabilities of the Company, the obligations of any Guarantor under
this Guaranty and the obligations under any other guaranties and sureties of all
or any of the Guarantied Obligations, and exchange, enforce, waive, release,
sell, transfer, assign, abandon, fail to perfect, subordinate or otherwise deal
with any such security; (iv) apply such security and direct the order or manner
of sale thereof as any Noteholder may determine in its sole discretion; (v)
settle, release, compromise, collect or otherwise liquidate the Guarantied
Obligations or any
portion thereof and any security therefor or guaranty thereof in any manner;
(vi) extend additional loans, credit and financial accommodations to the Company
and otherwise create additional Guarantied Obligations; (vii) waive strict
compliance with the terms of the Note Purchase Agreement, the Notes or any other
agreements, documents, certificates and instruments now or hereafter executed or
delivered by the Company or any Guarantor in connection with the Note Purchase
Agreement and otherwise forbear from asserting any Noteholder's rights and
remedies thereunder; (viii) take and hold additional guaranties or sureties and
enforce or forbear from enforcing any guaranty or surety of any other guarantor
or surety of the Guarantied Obligations, any portion thereof or release or
otherwise take any action (or omit to take any action) with respect to any such
guarantor or surety; (ix) assign this Guaranty in part or in whole in connection
with any assignment of the Guarantied Obligations or any portion thereof; (x)
exercise or refrain from exercising any of its rights against the Company or any
Guarantor; and (xi) apply any sums, by whomsoever paid or however realized, to
the payment of the Guarantied Obligations as any Noteholder in its sole
discretion may determine.
2D. Waivers of Guarantors. Each Guarantor waives for the benefit of the
Noteholders:
(i) any right to require any Noteholder, as a condition of payment or
performance by such Guarantor or otherwise to (a) proceed against the Company,
any other Guarantor, any other guarantor of the Guarantied Obligations or any
other Person, (b) proceed against or exhaust any security given to or held by
any Noteholder in connection with the Guarantied Obligations or any other
guaranty, or (c) pursue any other remedy available to any Noteholder whatsoever;
(ii) any defense arising by reason of (a) the incapacity, lack of authority
or any disability of the Company, including, without limitation, any defense
based on or arising out of the lack of validity or the unenforceability of the
Guarantied Obligations or any agreement or instrument relating thereto (other
than a defense of payment, unless the payment on which such defense is based was
or is subsequently invalidated, declared to be fraudulent or preferential,
otherwise avoided and/or required to be repaid to the Company or a Guarantor, as
the case may be, or the estate of any such party, a trustee, receiver or any
other Person under any bankruptcy law, state or federal law, common law or
equitable cause, in which case there shall be no defense of payment with respect
to such payment), (b) the cessation of the liability of the Company from any
cause other than indefeasible payment in full of the Guarantied Obligations in
cash or (c) any act or omission of any Noteholder or any other Person which
directly or indirectly, by operation of law or otherwise, results in or aids the
discharge or release of the Company or any security given to or held by any
Noteholder in connection with the Guarantied Obligations or any other guaranty;
(iii) any defense based upon any Noteholder's errors or omissions in the
administration of the Guarantied Obligations;
(iv) (a) any principles or provisions of law, statutory or otherwise, which
are or might be in conflict with the terms of this Guaranty and any legal or
equitable discharge of such Guarantor's obligations thereunder except to the
extent any such principle, provision or discharge may not be waived under
applicable law, (b) the benefit of any statute of limitations affecting the
Guarantied Obligations or such Guarantor's liability hereunder or the
enforcement
hereof, (c) any rights to set-offs, recoupments and counterclaims, and (d)
promptness, diligence and any requirement that any Noteholder protect, maintain,
secure, perfect or insure any Lien or any property subject thereto;
(v) notices (a) of nonperformance or dishonor, (b) of acceptance of this
Guaranty by any Noteholder or by any Guarantor, (c) of default in respect of the
Guarantied Obligations or any other guaranty, (d) of the existence, creation or
incurrence of new or additional indebtedness, arising either from additional
loans extended to the Company or otherwise, (e) that the principal amount, or
any portion thereof, and/or any interest on any document or instrument
evidencing all or any part of the Guarantied Obligations is due, (f) of any and
all proceedings to collect from the Company, any Guarantor or any other
guarantor of all or any part of the Guarantied Obligations, or from anyone else,
(g) of exchange, sale, surrender or other handling of any security or collateral
given to any Noteholder to secure payment of the Guarantied Obligations or any
guaranty therefor, (h) of renewal, extension or modification of any of the
Guarantied Obligations, (i) of assignment, sale or other transfer of any Note to
a permitted transferee thereof, or (j) of any of the matters referred to in
paragraph 2B and any right to consent to any thereof;
(vi) presentment, demand for payment or performance and protest and notice
of protest with respect to the Guarantied Obligations or any guaranty with
respect thereto; and
(vii) any defenses or benefits that may be derived from or afforded by law
which limit the liability of or exonerate guarantors or sureties, or which may
conflict with the terms of this Guaranty.
Each Guarantor agrees that no Noteholder shall be under any obligation to
marshall any assets in favor of such Guarantor or against or in payment of any
or all of the Guarantied Obligations.
No Guarantor will exercise any rights which it may have acquired by way of
subrogation under this Guaranty, by any payment made hereunder or otherwise, or
accept any payment on account of such subrogation rights, or any rights of
reimbursement or indemnity or contribution or any rights or recourse to any
security for the Guarantied Obligations or this Guaranty unless at the time of
such Guarantor's exercise of any such right there shall have been performed and
indefeasibly paid in full in cash all of the Guarantied Obligations.
2E. Revival. Each Guarantor agrees that, if any payment made by the Company
or any other Person is applied to the Guarantied Obligations and is at any time
annulled, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be refunded or repaid, or the proceeds of
any security are required to be returned by any Noteholder to the Company, its
estate, trustee, receiver or any other Person, including, without limitation,
any Guarantor, under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or repayment, such
Guarantor's liability hereunder (and any lien, security interest or other
collateral securing such liability) shall be and remain in full force and
effect, as fully as if such payment had never been made, or, if prior thereto
this Guaranty shall have been canceled or surrendered (and if any lien, security
interest or other collateral securing such Guarantor's liability hereunder shall
have been released or terminated by virtue of such cancellation or surrender),
this Guaranty (and such lien, security
interest or other collateral) shall be reinstated and returned in full force and
effect, and such prior cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of such Guarantor in
respect of the amount of such payment (or any lien, security interest or other
collateral securing such obligation).
2F. Obligation to Keep Informed. Each Guarantor shall be responsible for
keeping itself informed of the financial condition of the Company and any other
Persons primarily or secondarily liable on the Guarantied Obligations or any
portion thereof, and of all other circumstances bearing upon the risk of
nonpayment of the Guarantied Obligations or any portion thereof, and each
Guarantor agrees that no Noteholder shall have any duty to advise such Guarantor
of information known to such Noteholder regarding such condition or any such
circumstance. If any Noteholder, in its discretion, undertakes at any time or
from time to time to provide any such information to any Guarantor, such
Noteholder shall not be under any obligation (i) to undertake any investigation,
whether or not a part of its regular business routine, (ii) to disclose any
information which such Noteholder wishes to maintain confidential, or (iii) to
make any other or future disclosures of such information or any other
information to any Guarantor.
2G. Bankruptcy. If any Event of Default specified in clauses (ii) or (iv)
of Section 11(g) or Section 11(h) of the Note Purchase Agreement shall occur and
be continuing, then each Guarantor agrees to immediately pay to the Noteholders
the full outstanding amount of the Guarantied Obligations without notice.
No waiver by any Guarantor in this Guaranty shall, in and of itself, be deemed a
waiver by the Company of any right of, or benefit afforded to, the Company under
the Note Purchase Agreement.
3. REPRESENTATIONS AND WARRANTIES.
Each Guarantor represents, covenants and warrants as follows:
3A. Organization. Such Guarantor is a corporation or limited liability
company (as the case may be) duly organized and existing in good standing under
the laws of the state of its organization and is qualified to do business and in
good standing in every jurisdiction where the ownership of its property or the
nature of the business conducted by it makes such qualification necessary and in
which the failure to be so qualified or licensed could be reasonably likely to
have a Material Adverse Effect.
3B. Power and Authority. Such Guarantor has all requisite power to conduct
its business as currently conducted and as currently proposed to be conducted.
Such Guarantor has all requisite power to execute, deliver and perform its
obligations under this Guaranty. The execution, delivery and performance of this
Guaranty have been duly authorized by all requisite action and this Guaranty has
been duly executed and delivered by authorized officers of such Guarantor and is
the valid obligation of such Guarantor, legally binding upon and enforceable
against such Guarantor in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3C. Conflicting Agreements and Other Matters. The execution and delivery of
this Guaranty and the fulfillment of or the compliance with the terms and
provisions hereof will not conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, or result in any
violation of, or result in the creation of any Lien upon any of the properties
or assets of such Guarantor or any of its Subsidiaries pursuant to, the
certificate of incorporation or articles of organization (as the case may be),
the by-laws or limited liability company agreement (as the case may be) of such
Guarantor or any of its Subsidiaries, any award of any arbitrator or any
agreement (including any agreement with stockholders or holders of membership
interests (as the case may be) of such Guarantor or Persons with direct or
indirect ownership interests in stockholders or holders of membership interests
(as the case may be) of such Guarantor), instrument, order, judgment, decree,
statute, law, rule or regulation to which such Guarantor or any of its
Subsidiaries is subject. Neither such Guarantor nor any of its Subsidiaries is a
party to, or otherwise subject to any provision contained in, any instrument
evidencing any Indebtedness of such Guarantor or such Subsidiary any agreement
relating thereto or any other contract or agreement (including its charter)
which limits the amount of, or otherwise imposes restrictions on the incurring
of, obligations of such Guarantor of the type to be evidenced by this Guaranty.
3D. ERISA. The execution and delivery of this Guaranty will be exempt from,
or will not involve any transaction which is subject to, the prohibitions of
section 406 of ERISA and will not involve any transaction in connection with
which a penalty could be imposed under section 502(i) of ERISA or a tax could be
imposed pursuant to section 4975 of the Code.
3E. Governmental Consent. Neither the nature of such Guarantor or of any
Subsidiary of such Guarantor nor any of their respective businesses or
properties, nor any relationship between such Guarantor or any Subsidiary of
such Guarantor and any other Person, nor any circumstance in connection with the
execution, delivery and performance of this Guaranty, is such as to require any
authorization, consent, approval, exemption or other action by or notice to or
filing with any court or administrative or governmental body (including, without
limitation, notifications required by the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, but excluding routine filings after the date of this
Guaranty with the Securities and Exchange Commission and/or state Blue Sky
authorities).
3F. Regulatory Status. Neither such Guarantor nor any Subsidiary of the
Guarantor is (i) an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, (ii) a "holding company" or a "subsidiary company" or an "affiliate"
of a "holding company" or a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended, or
(iii) a "public utility" within the meaning of the Federal Power Act, as
amended.
4. MISCELLANEOUS.
4A. Successors, Assigns and Participants. This Guaranty shall be binding
upon each Guarantor and its successors and assigns and shall inure to the
benefit of each Noteholder and its successors, transferees and assigns; all
references herein to a Guarantor shall be deemed to include its successors and
assigns, and all references herein to any Noteholder shall
be deemed to include its successors and assigns. This Guaranty shall be
enforceable by each Noteholder and any of such Noteholder's successors, assigns
and participants, and any such successors and assigns shall have the same rights
and benefits with respect to each Guarantor under this Guaranty as such
Noteholder hereunder.
4B. Consent to Amendments. This Guaranty may be amended, and a Guarantor
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, if such Guarantor shall obtain the written
consent to such amendment, action or omission to act, of the Required Holder(s)
of the Notes, except that, without the written consent of all of the holders of
the Notes, (i) no amendment to or waiver of the provisions of this Guaranty
shall change or affect the provisions of this paragraph 4B insofar as such
provisions relate to proportions of the principal amount of the Notes, or the
rights of any individual holder of the Notes, required with respect to any
consent, (ii) no Guarantor shall be released from this Guaranty, and (iii) no
amendment, consent or waiver with respect to paragraph 2A or the definition of
"Guarantied Obligations" (except to add additional obligations of the Company)
shall be effective. Each Noteholder at the time or thereafter outstanding shall
be bound by any consent authorized by this paragraph 4B, whether or not the Note
held by such Noteholder shall have been marked to indicate such consent, but any
Notes issued thereafter may bear a notation referring to any such consent. No
course of dealing between any Guarantor and any Noteholder nor any delay in
exercising any rights hereunder or under any Note shall operate as a waiver of
any rights of any Noteholder. As used herein, the term "this Guaranty" and
references thereto shall mean this Guaranty as it may from time to time be
amended or supplemented. Notwithstanding the foregoing, this Guaranty may be
amended by the addition of additional Guarantors, as required pursuant to the
Note Purchase Agreement.
4C. Survival of Representations and Warranties; Entire Agreement. All
representations and warranties contained herein or made in writing by or on
behalf of each Guarantor in connection herewith shall survive the execution and
delivery of this Guaranty, the transfer by any Noteholder of any Note or portion
thereof or interest therein and the payment of any Note, and may be relied upon
by any permitted transferee thereof, regardless of any investigation made at any
time by or on behalf of any Noteholder or any permitted transferee thereof.
Subject to the preceding sentence, this Guaranty embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to the
subject matter hereof.
4D. Notices. All written communications provided for hereunder shall be
sent by first class mail or telegraphic notice or nationwide overnight delivery
service (with charges prepaid) or by hand delivery or telecopy and addressed:
(i) in the case of each Guarantor, to:
c/o Oil-Dri Corporation of America
410 North Michigan Avenue
Chicago, Illinois, 60611
Attention: Chief Financial Officer
Phone: (312) 706-3209
Fax: (312) 706-1223
(ii) in the case of any Noteholder, to the address specified for notices to
such Noteholder under the Note Purchase Agreement;
or, in either case, at such other address as shall be designated by such Person
in a written notice to the other parties hereto.
4E. Descriptive Headings. The descriptive headings of the several
paragraphs of this Guaranty are inserted for convenience only and do not
constitute a part of this Guaranty.
4F. Satisfaction Requirement. If any agreement, certificate or other
writing, or any action taken or to be taken, is by the terms of this Guaranty
required to be satisfactory to any Noteholder or the Required Holder(s) of the
Notes, the determination of such satisfaction shall be made by such Noteholder
or such Required Holder(s), as the case may be, in the sole and exclusive
judgment (exercised in good faith) of the Person or Persons making such
determination.
4G. Governing Law. THIS GUARANTY SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF ILLINOIS (EXCLUDING ANY CONFLICTS OF LAW RULES WHICH WOULD
OTHERWISE CAUSE THIS GUARANTY TO BE CONSTRUED OR ENFORCED IN ACCORDANCE WITH, OR
THE RIGHTS OF THE PARTIES TO BE GOVERNED BY, THE LAWS OF ANY OTHER
JURISDICTION).
4H. Counterparts. This Guaranty may be executed simultaneously in two or
more counterparts, each of which shall be an original and constitute one and the
same agreement. It shall not be necessary in making proof of this Guaranty to
produce or account for more than one such counterpart. Delivery of an executed
counterpart of a signature page hereto by facsimile shall be effective as
delivery of a manually executed counterpart of this Guaranty.
4I. SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS GUARANTY OR THE OTHER TRANSACTION DOCUMENTS MAY BE BROUGHT IN THE COURTS
OF THE STATE OF ILLINOIS IN COOK COUNTY, ILLINOIS, OR OF THE UNITED STATES FOR
THE NORTHERN DISTRICT OF ILLINOIS AND, BY EXECUTION AND DELIVERY OF THIS
GUARANTY, EACH GUARANTOR HEREBY IRREVOCABLY ACCEPTS, UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION OR
PROCEEDING. EACH GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO IT AT ITS ADDRESS PROVIDED IN PARAGRAPH 4D(i), SUCH SERVICE TO
BECOME EFFECTIVE UPON RECEIPT. EACH GUARANTOR AGREES THAT A FINAL AND
NON-APPEALABLE JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON SUCH JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
HOLDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
ANY GUARANTOR IN ANY OTHER JURISDICTION. EACH GUARANTOR HEREBY IRREVOCABLY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS GUARANTY BROUGHT IN ANY OF THE AFORESAID COURTS AND HEREBY FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY
SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
4J. Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is prohibited by
any one of such covenants, the fact that it would be permitted by an exception
to, or otherwise be in compliance within the limitations of, another covenant
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or such condition exists.
4K. Severability. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
[signature page follows]
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty Agreement to be
duly executed as of the date first above written.
[NAME OF GUARANTOR SUBSIDIARY]
By:
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