Exhibit 10.2
EXECUTION COPY
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SUBSIDIARY GUARANTY AGREEMENT
Dated as of April 2, 2007
Re: $45,000,000 Series 2007-A Adjustable Fixed Rate Guaranteed Senior Notes,
Tranche 1, due April 2, 2017,
$30,000,000 Series 2007-A Adjustable Floating Rate Guaranteed Senior Notes,
Tranche 2, due April 2, 2017
and
Additional Notes
of
AMCOL International Corporation
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TABLE OF CONTENTS
SECTION HEADING PAGE
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SECTION 1. Definitions .......................................... 2
SECTION 2. Guaranty of Notes and Note Purchase Agreement ........ 2
SECTION 3. Guaranty of Payment and Performance .................. 3
SECTION 4. General Provisions Relating to the Guaranty .......... 4
SECTION 5. Representations and Warranties of the Guarantors ..... 9
SECTION 6. Amendments, Waivers and Consents ..................... 11
SECTION 7. Notices .............................................. 12
SECTION 8. Miscellaneous ........................................ 12
Exhibit A -- Guaranty Supplement
Exhibit B -- Guaranty Accession Agreement
SUBSIDIARY GUARANTY AGREEMENT
Re: $45,000,000 Series 2007-A Adjustable Fixed Rate Guaranteed Senior Notes,
Tranche 1, due April 2, 2017,
$30,000,000 Series 2007-A Adjustable Floating Rate Guaranteed Senior Notes,
Tranche 2, due April 2, 2017
and
Additional Notes
of
AMCOL International Corporation
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This SUBSIDIARY GUARANTY AGREEMENT dated as of April 2, 2007 (this
"Guaranty") is entered into on a joint and several basis by each of the
undersigned, together with any entity which may become a party hereto by
execution and delivery of a Guaranty Supplement in substantially the form set
forth as Exhibit A hereto (a "Guaranty Supplement") (which parties are
hereinafter referred to individually as a "Guarantor" and collectively as the
"Guarantors").
RECITALS
A. Each Guarantor is a direct or indirect Subsidiary of AMCOL
International Corporation, a corporation organized under the laws of the State
of Delaware (the "Company").
B. The Company has entered into a Note Purchase Agreement dated as
of April 2, 2007 (as the same may be amended, supplemented, restated or
otherwise modified from time to time, the "Note Purchase Agreement") between the
Company and each of the institutional investors named on Schedule A attached
thereto (the "2007-A Note Purchasers"), providing for, among other things, the
issue and sale by the Company to the 2007-A Note Purchasers of $75,000,000
aggregate principal amount of its Series 2007-A Guaranteed Senior Notes
consisting of (a) $45,000,000 aggregate principal amount of its Series 2007-A
Adjustable Fixed Rate Guaranteed Senior Notes, Tranche 1, due April 2, 2017 (the
"Tranche 1 Notes") and (b) $30,000,000 aggregate principal amount of its Series
2007-A Adjustable Floating Rate Guaranteed Senior Notes, Tranche 2, due April 2,
2017 (the "Tranche 2 Notes"; the Tranche 2 Notes together with the Tranche 1
Notes are collectively referred to herein as the "Series 2007-A Notes").
C. Pursuant to the Note Purchase Agreement, the Company may, from
time to time, issue one or more additional Series (as hereinafter defined) of
its unsecured promissory notes ("Additional Notes," and collectively with the
Series 2007-A Notes, the "Notes") to purchasers ("Additional Purchasers")
pursuant to a supplement (a "Supplement"), provided that the aggregate principal
amount of Additional Notes issued pursuant to Supplements in accordance with the
terms of Section 2.2 of the Note Purchase Agreement shall not exceed
$225,000,000. In connection with the issuance of each Series of Additional
Notes, the Guarantors will execute and deliver a Guaranty Accession Agreement in
the form attached hereto as Exhibit B confirming that such Series of Additional
Notes constitutes Notes hereunder and are entitled to the benefits hereof. The
2007-A Note Purchasers and the Additional Purchasers together with their
respective successors and assigns are collectively referred to herein as the
"Holders."
D. The 2007-A Note Purchasers have required as a condition of their
purchase of the Series 2007-A Notes and it is a condition of each Additional
Purchaser's purchase of Additional Notes that the Company cause each of the
undersigned to enter into this Guaranty and, as set forth in Section 9.9 of the
Note Purchase Agreement, to cause certain other Subsidiaries to enter into a
Guaranty Supplement, and the Company has agreed to cause each of the undersigned
to execute this Guaranty and to cause each such other Subsidiary to execute a
Guaranty Supplement, in each case in order to induce the 2007-A Note Purchasers
and Additional Purchasers to purchase the Notes and thereby benefit the Company
and its Subsidiaries by providing funds to the Company for the purposes
described in Section 5.14 of the Note Purchase Agreement or in the case of any
Additional Notes, for the purposes described in the related Supplement.
NOW, THEREFORE, as required by Section 4.10 of the Note Purchase
Agreement and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged, each
Guarantor does hereby covenant and agree, jointly and severally, as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used herein shall have the meanings set forth in the
Note Purchase Agreement unless defined herein or the context shall otherwise
require.
SECTION 2. GUARANTY OF NOTES AND NOTE PURCHASE AGREEMENT.
(a) Each Guarantor jointly and severally does hereby irrevocably,
absolutely and unconditionally guarantee unto the Holders: (1) the full and
prompt payment of the principal of, Make-Whole Amount, if any, Prepayment
Premium, if any, Breakage Amount, if any, and interest on the Notes from time to
time outstanding, as and when such payments shall become due and payable whether
by lapse of time, upon redemption or prepayment, by extension or by acceleration
or declaration or otherwise (including, to the extent permitted by applicable
law, interest due on overdue payments of principal, Make-Whole Amount, if any,
Prepayment Premium, if any, Breakage Amount, if any, or interest at the rate set
forth in the Notes) in federal or other immediately available funds of the
United States of America which at the time of payment or demand therefor shall
be legal tender for the payment of public and private debts, (2) the full and
prompt performance and observance by the Company of each and all of the
obligations, covenants and agreements required to be performed or owed by the
Company under the terms of the Notes and the Note Purchase Agreement (including
any Supplement) and (3) the full and prompt payment, upon demand by any Holder
of all reasonable costs and expenses, legal or otherwise (including reasonable
attorneys' fees), if any, as shall have been expended or incurred in the
protection or enforcement of any rights, privileges or liabilities in favor of
the Holders under or in respect of the Notes, the Note Purchase Agreement
(including any Supplement) or under this Guaranty or in any consultation or
action in connection therewith or herewith.
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(b) To the extent that any Guarantor shall make a payment hereunder
(a "Payment") which, taking into account all other Payments previously or
concurrently made by any of the other Guarantors, exceeds the amount which such
Guarantor would otherwise have paid if each Guarantor had paid the aggregate
obligations satisfied by such Payment in the same proportion as such Guarantor's
Allocable Amount (as hereinafter defined) in effect immediately prior to such
Payment bore to the Aggregate Allocable Amount (as hereinafter defined) of all
of the Guarantors in effect immediately prior to the making of such Payment,
then such Guarantor shall be entitled to contribution and indemnification from,
and be reimbursed by, each of the other Guarantors for the amount of such
excess, pro rata based upon their respective Allocable Amounts in effect
immediately prior to such Payment; provided that each Guarantor covenants and
agrees that such right of contribution and indemnification and any and all
claims of such Guarantor against any other Guarantor, any endorser or against
any of their property shall be junior and subordinate in right of payment to the
prior indefeasible final payment in cash in full of all of the Notes and
satisfaction by the Company of its obligations under the Note Purchase Agreement
and under each Supplement and by the Guarantors of their obligations under this
Guaranty and the Guarantors shall not take any action to enforce such right of
contribution and indemnification, and the Guarantors shall not accept any
payment in respect of such right of contribution and indemnification, until all
of the Notes and all amounts payable by the Guarantors hereunder have
indefeasibly been finally paid in cash in full and all of the obligations of the
Company under the Note Purchase Agreement and under each Supplement and of the
Guarantors under this Guaranty have been satisfied
As of any date of determination, (1) the "Allocable Amount" of any
Guarantor shall be equal to the maximum amount which could then be claimed by
the Holders under this Guaranty without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the United States Bankruptcy Code
(11 U.S.C. Sec. 101 et. seq.) or under any applicable state Uniform Fraudulent
Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common
law; and (2) the "Aggregate Allocable Amount" shall be equal to the sum of each
Guarantor's Allocable Amount.
This clause (b) is intended only to define the relative rights of the
Guarantors, and nothing set forth in this clause (b) is intended to or shall
impair the obligations of the Guarantors, jointly and severally, to pay any
amounts to the Holders as and when the same shall become due and payable in
accordance herewith.
Each Guarantor acknowledges that the rights of contribution and
indemnification hereunder shall constitute an asset in favor of any Guarantor to
which such contribution and indemnification is owing.
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE.
This is an irrevocable, absolute and unconditional guarantee of payment
and performance (and not merely of collection) and each Guarantor hereby waives,
to the fullest extent permitted by law, any right to require that any action on
or in respect of any Note or the Note Purchase Agreement (including any
Supplement) be brought against the Company or any other Person or that resort be
had to any direct or indirect security for the Notes or for this Guaranty or any
other remedy. Any Holder may, at its option, proceed hereunder against any
Guarantor in the first instance to collect monies when due, the payment of which
is guaranteed hereby, without first proceeding against the Company or any other
Person and without first resorting to any direct or indirect security for the
Notes or for this Guaranty or any other remedy. The liability of each Guarantor
hereunder shall in no way be affected or impaired by any acceptance by any
Holder of any direct or indirect security for, or other guaranties of, any Debt,
liability or obligation of the Company or any other Person to any Holder or by
any failure, delay, neglect or omission by any Holder to realize upon or protect
any such guarantees, Debt, liability or obligation or any notes or other
instruments evidencing the same or any direct or indirect security therefor or
by any approval, consent, waiver, or other action taken, or omitted to be taken
by any such Holder.
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The covenants and agreements on the part of the Guarantors herein
contained shall take effect as joint and several covenants and agreements, and
references to the Guarantors shall take effect as references to each of them and
none of them shall be released from liability hereunder by reason of the
guarantee ceasing to be binding as a continuing security on any other of them.
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(a) Each Guarantor hereby consents and agrees that any Holder or
Holders from time to time, with or without any further notice to or assent from
any other Guarantor may, without in any manner affecting the liability of any
Guarantor under this Guaranty, and upon such terms and conditions as any such
Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise),
modify, change, compromise, release or extend the duration of the time
for the performance or payment of any Debt, liability or obligation of
the Company or of any other Person (including, without limitation, any
other Guarantor) secondarily or otherwise liable for any Debt,
liability or obligation of the Company on the Notes, or waive any
Default or Event of Default with respect thereto, or waive, modify,
amend or change any provision of the Note Purchase Agreement, any
Supplement, any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or
substitute any and all property, of any nature and from whomsoever
received, held by, or for the benefit of, any such Holder as direct or
indirect security for the payment or performance of any Debt, liability
or obligation of the Company or of any other Person (including, without
limitation, any other Guarantor) secondarily or otherwise liable for
any Debt, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company
against any other Person (including, without limitation, any other
Guarantor) secondarily or otherwise liable for any Debt, liability or
obligation of the Company on the Notes.
Each Guarantor hereby ratifies and confirms any such extension,
renewal, change, sale, release, waiver, surrender, exchange, modification,
amendment, impairment, substitution, settlement, adjustment or compromise and
that the same shall be binding upon it, and hereby waives, to the fullest extent
permitted by law, any and all defenses, counterclaims or offsets which it might
or could have by reason thereof, it being understood that such Guarantor shall
at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by
law:
(1) notice of acceptance of this Guaranty by the Holders or of
the creation, renewal or accrual of any liability of the Company,
present or future, or of the reliance of such Holders upon this
Guaranty (it being understood that every Debt, liability and obligation
described in Section 2 hereof shall conclusively be presumed to have
been created, contracted or incurred in reliance upon the execution of
this Guaranty);
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(2) notice of the issuance of any Additional Notes pursuant to
the Note Purchase Agreement or any Supplement thereto;
(3) demand of payment by any Holder from the Company or any
other Person (including, without limitation, any other Guarantor)
indebted in any manner on or for any of the Debt, liabilities or
obligations hereby guaranteed; and
(4) presentment for the payment by any Holder or any other
Person of the Notes or any other instrument, protest thereof and notice
of its dishonor to any party thereto and to such Guarantor.
The obligations of each Guarantor under this Guaranty and the rights of
any Holder to enforce such obligations by any proceedings, whether by action at
law, suit in equity or otherwise, shall not be subject to any reduction,
limitation, impairment or termination, whether by reason of any claim of any
character whatsoever or otherwise and shall not be subject to any defense,
set-off, counterclaim (other than any compulsory counterclaim), recoupment or
termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon
the Guarantors and their successors and assigns, and shall remain in full force
and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of
the Notes, the Note Purchase Agreement, any Supplement or any other
agreement or any of the terms of any thereof, the continuance of any
obligation on the part of the Company or any other Person on or in
respect of the Notes or under the Note Purchase Agreement, any
Supplement or any other agreement or the power or authority or the lack
of power or authority of the Company to issue the Notes or the Company
to execute and deliver the Note Purchase Agreement, any Supplement or
any other agreement or of any Guarantor to execute and deliver this
Guaranty or to perform any of its obligations hereunder or the
existence or continuance of the Company or any other Person as a legal
entity; or
(2) any default, failure or delay, willful or otherwise, in
the performance by the Company, any Guarantor or any other Person of
any obligations of any kind or character whatsoever under the Notes,
the Note Purchase Agreement, any Supplement, this Guaranty or any other
agreement; or
(3) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the Company, any Guarantor or any other Person
or in respect of the property of the Company, any Guarantor or any
other Person or any merger, consolidation, reorganization, dissolution,
liquidation, sale of all or substantially all of the assets of or
winding up of the Company, any Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of
the Company, any Guarantor or any other Person of its obligations under
the Notes, the Note Purchase Agreement, any Supplement, this Guaranty
or any other agreement; or
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(5) in respect of the Company or any other Person, any change
of circumstances, whether or not foreseen or foreseeable, whether or
not imputable to the Company or any other Person, or other
impossibility of performance through fire, explosion, accident, labor
disturbance, floods, droughts, embargoes, wars (whether or not
declared), civil commotion, acts of God or the public enemy, delays or
failure of suppliers or carriers, inability to obtain materials, action
of any federal or state regulatory body or agency, change of law or any
other causes affecting performance, or any other force majeure, whether
or not beyond the control of the Company or any other Person and
whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order,
process, encumbrance or any other happening or event or reason, similar
or dissimilar to the foregoing, or any withholding or diminution at the
source, by reason of any taxes, assessments, expenses, Debt,
obligations or liabilities of any character, foreseen or unforeseen,
and whether or not valid, incurred by or against the Company, any
Guarantor or any other Person or any claims, demands, charges or Liens
of any nature, foreseen or unforeseen, incurred by the Company, any
Guarantor or any other Person, or against any sums payable in respect
of the Notes or under the Note Purchase Agreement, any Supplement or
this Guaranty, so that such sums would be rendered inadequate or would
be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether
or not valid) of any court of any nation or of any political
subdivision thereof or any body, agency, department, official or
administrative or regulatory agency of any thereof or any other action,
happening, event or reason whatsoever which shall delay, interfere
with, hinder or prevent, or in any way adversely affect, the
performance by the Company, any Guarantor or any other Person of its
respective obligations under or in respect of the Notes, the Note
Purchase Agreement, any Supplement, this Guaranty or any other
agreement; or
(8) the failure of any Guarantor to receive any benefit from
or as a result of its execution, delivery and performance of this
Guaranty; or
(9) any failure or lack of diligence in collection or
protection, failure in presentment or demand for payment, protest,
notice of protest, notice of default and of nonpayment, any failure to
give notice to any Guarantor of failure of the Company, any Guarantor
or any other Person to keep and perform any obligation, covenant or
agreement under the terms of the Notes, the Note Purchase Agreement,
any Supplement, this Guaranty or any other agreement or failure to
resort for payment to the Company, any Guarantor or to any other Person
or to any other guaranty or to any property, security, Liens or other
rights or remedies; or
(10) the acceptance of any additional security or other
guaranty, the advance of additional money to the Company or any other
Person, the renewal or extension of the Notes or amendments,
modifications, consents or waivers with respect to the Notes, the Note
Purchase Agreement, any Supplement or any other agreement, or the sale,
release, substitution or exchange of any security for the Notes; or
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(11) the failure to execute a Guaranty Accession Agreement in
connection with the issuance of any Series of Additional Notes; or
(12) any merger or consolidation of the Company, any Guarantor
or any other Person into or with any other Person or any sale, lease,
transfer or other disposition of any of the assets of the Company, any
Guarantor or any other Person to any other Person, or any change in the
ownership of any shares or other equity interests of the Company, any
Guarantor or any other Person; or
(13) any defense whatsoever that: (i) the Company or any other
Person might have to the payment of the Notes (including, principal,
Make-Whole Amount, if any, Prepayment Premium, if any, Breakage Amount,
if any, or interest), other than payment thereof in federal or other
immediately available funds or (ii) the Company or any other Person
might have to the performance or observance of any of the provisions of
the Notes, the Note Purchase Agreement, any Supplement or any other
agreement, whether through the satisfaction or purported satisfaction
by the Company or any other Person of its debts due to any cause such
as bankruptcy, insolvency, receivership, merger, consolidation,
reorganization, dissolution, liquidation, winding-up or otherwise; or
(14) any act or failure to act with regard to the Notes, the
Note Purchase Agreement, any Supplement, this Guaranty or any other
agreement or anything which might vary the risk of any Guarantor or any
other Person; or
(15) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Guarantor or any other
Person in respect of the obligations of any Guarantor or other Person
under this Guaranty or any other agreement;
provided that the specific enumeration of the above-mentioned acts, failures or
omissions shall not be deemed to exclude any other acts, failures or omissions,
though not specifically mentioned above, it being the purpose and intent of this
Guaranty and the parties hereto that the obligations of each Guarantor shall be
absolute and unconditional and shall not be discharged, impaired or varied
except by the payment of the principal of, Make-Whole Amount, if any, Prepayment
Premium, if any, Breakage Amount, if any, and interest on the Notes in
accordance with their respective terms whenever the same shall become due and
payable as in the Notes provided, at the place specified in and all in the
manner and with the effect provided in the Notes and the Note Purchase
Agreement, as each may be amended or modified from time to time. Without
limiting the foregoing, it is understood that repeated and successive demands
may be made and recoveries may be had hereunder as and when, from time to time,
the Company shall default under or in respect of the terms of the Notes or the
Note Purchase Agreement and that notwithstanding recovery hereunder for or in
respect of any given default or defaults by the Company under the Notes or the
Note Purchase Agreement or any Supplement, this Guaranty shall remain in full
force and effect and shall apply to each and every subsequent default.
(d) All rights of any Holder under this Guaranty shall be considered
to be transferred or assigned at any time or from time to time upon the transfer
of any Note held by such Holder whether with or without the consent of or notice
to the Guarantors under this Guaranty or to the Company.
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(e) To the extent of any payments made under this Guaranty, the
Guarantors shall be subrogated to the rights of the Holder or Holders upon whose
Notes such payment was made, but each Guarantor covenants and agrees that such
right of subrogation and any and all claims of such Guarantor against the
Company, any endorser or other Guarantor or against any of their respective
properties shall be junior and subordinate in right of payment to the prior
indefeasible final payment in cash in full of all of the Notes and satisfaction
by the Company of its obligations under the Note Purchase Agreement and each
Supplement and by the Guarantors of their obligations under this Guaranty, and
the Guarantors shall not take any action to enforce such right of subrogation,
and the Guarantors shall not accept any payment in respect of such right of
subrogation, until all of the Notes and all amounts payable by the Guarantors
hereunder have indefeasibly been finally paid in cash in full and all of the
obligations of the Company under the Note Purchase Agreement and each Supplement
and of the Guarantors under this Guaranty have been satisfied. Notwithstanding
any right of any Guarantor to ask, demand, sue for, take or receive any payment
from the Company, all rights, Liens and security interests of each Guarantor,
whether now or hereafter arising and howsoever existing, in any assets of the
Company shall be and hereby are subordinated to the rights, if any, of the
Holders in those assets. No Guarantor shall have any right to possession of any
such asset or to foreclose upon any such asset, whether by judicial action or
otherwise, unless and until all of the Notes and the obligations of the Company
under the Note Purchase Agreement shall have been paid in cash in full and
satisfied.
(f) Each Guarantor agrees that to the extent the Company or any other
Person makes any payment on any Note, which payment or any part thereof is
subsequently invalidated, voided, declared to be fraudulent or preferential, set
aside, recovered, rescinded or is required to be retained by or repaid to a
trustee, receiver, or any other Person under any bankruptcy code, common law, or
equitable cause, then and to the extent of such payment, the obligation or the
part thereof intended to be satisfied shall be revived and continued in full
force and effect with respect to the Guarantors' obligations hereunder, as if
said payment had not been made. The liability of the Guarantors hereunder shall
not be reduced or discharged, in whole or in part, by any payment to any Holder
from any source that is thereafter paid, returned or refunded in whole or in
part by reason of the assertion of a claim of any kind relating thereto,
including, but not limited to, any claim for breach of contract, breach of
warranty, preference, illegality, invalidity or fraud asserted by any account
debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to marshal any
assets in favor of the Guarantors or in payment of any or all of the liabilities
of the Company under or in respect of the Notes and the Note Purchase Agreement
and each Supplement or the obligations of the Guarantors hereunder or (2) to
pursue any other remedy that the Guarantors may or may not be able to pursue
themselves and that may lighten the Guarantors' burden, any right to which each
Guarantor hereby expressly waives.
(h) If an event permitting the acceleration of the maturity of the
principal amount of the Notes shall at any time have occurred and be continuing
and such acceleration shall at such time be prevented or the right of any Holder
to receive any payment under any Note shall at such time be delayed or otherwise
affected by reason of the pendency against the Company of a case or proceeding
under a bankruptcy or insolvency law, each Guarantor agrees that, for purposes
of this Guaranty and its obligations hereunder, the maturity of such principal
amount shall be deemed to have been accelerated with the same effect as if the
Holders had accelerated the same in accordance with the terms of the Note
Purchase Agreement (including any Supplement), and such Guarantor shall
forthwith pay such accelerated principal of, Make-Whole Amount, if any,
Prepayment Premium, if any, Breakage Amount, if any, and interest on the Notes
and any other amounts guaranteed hereunder.
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SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS.
Each Guarantor represents and warrants to each Holder that:
(a) Such Guarantor is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and is duly qualified as a foreign corporation or
other legal entity and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on (1) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Restricted Subsidiaries, taken as a whole, (2) the ability of
the Guarantors, taken as a whole, to perform their obligations under this
Guaranty or (3) the validity or enforceability of this Guaranty (herein in this
Section 5, a "Material Adverse Effect"). Such Guarantor has the corporate or
other power and authority to own or hold under lease the properties it purports
to own or hold under lease, to transact the business it transacts and proposes
to transact, to execute and deliver this Guaranty and to perform the provisions
hereof.
(b) Each Subsidiary of such Guarantor is a corporation or other legal
entity duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization, and is duly qualified as a foreign corporation
or other legal entity and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each
Subsidiary of such Guarantor has the corporate or other power and authority to
own or hold under lease the properties it purports to own or hold under lease
and to transact the business it transacts and proposes to transact.
(c) This Guaranty has been duly authorized by all necessary action on
the part of such Guarantor, and this Guaranty constitutes a legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in
accordance with its terms, except as such enforceability may be limited by (1)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(d) The execution, delivery and performance by such Guarantor of this
Guaranty will not (1) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property
of such Guarantor or any of its Subsidiaries under any indenture, mortgage, deed
of trust, loan, purchase or credit agreement, lease, organizational document or
any other agreement or instrument to which such Guarantor or any of its
Subsidiaries is bound or by which such Guarantor or any of its Subsidiaries or
any of their respective properties may be bound or affected, (2) conflict with
or result in a breach of any of the terms, conditions or provisions of any
order, judgment, decree, or ruling of any court, arbitrator or Governmental
Authority applicable to such Guarantor or any of its Subsidiaries or (3) violate
any provision of any statute or other rule or regulation of any Governmental
Authority applicable to such Guarantor or any of its Subsidiaries.
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(e) No consent, approval or authorization of, or registration, filing
or declaration with, any Governmental Authority is required to be made or
obtained by such Guarantor in connection with the execution, delivery or
performance by such Guarantor of this Guaranty.
(f) (1) There are no actions, suits or proceedings pending or, to the
knowledge of such Guarantor, threatened against or affecting such Guarantor or
any of its Subsidiaries (that are Restricted Subsidiaries) property of such
Guarantor or any of its Subsidiaries (that are Restricted Subsidiaries) court or
before any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
(2) Neither such Guarantor nor any of its Subsidiaries (that
are Restricted Subsidiaries) is in default under any term of any
agreement or instrument to which it is a party or by which it is bound,
or any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including, without limitation,
Environmental Laws, ERISA or the USA Patriot Act) of any Governmental
Authority, which default or violation, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect.
(g) Neither such Guarantor nor any of its Subsidiaries (that are
Restricted Subsidiaries) is subject to regulation under the Investment Company
Act of 1940, as amended, the Public Utility Holding Company Act of 2005, as
amended, the ICC Termination Act of 1995, as amended, or the Federal Power Act,
as amended.
(h) Such Guarantor is solvent, has capital not unreasonably small in
relation to its business or any contemplated or undertaken transaction and has
assets having a value both at fair valuation and at present fair salable value
greater than the amount required to pay its debts as they become due and greater
than the amount that will be required to pay its probable liability on its
existing debts as they become absolute and matured. Such Guarantor does not
intend to incur, or believe or should have believed that it will incur, debts
beyond its ability to pay such debts as they become due. Such Guarantor will not
be rendered insolvent by the execution and delivery of, and performance of its
obligations under, this Guaranty. Such Guarantor does not intend to hinder,
delay or defraud its creditors by or through the execution and delivery of, or
performance of its obligations under, this Guaranty.
(i) The obligations of such Guarantor under this Guaranty rank pari
passu in right of payment with all other unsecured Senior Debt (actual or
contingent) of such Guarantor including, without limitation, all obligations of
such Guarantor under any guaranty of Debt of any other Person.
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SECTION 6. AMENDMENTS, WAIVERS AND CONSENTS.
(a) This Guaranty may be amended, and the observance of any term
hereof may be waived (either retroactively or prospectively), with (and only
with) the written consent of each Guarantor and the Required Holders, except
that (1) no amendment or waiver of any of the provisions of Sections 3, 4 or 5,
or any defined term (as it is used therein), will be effective as to any Holder
unless consented to by such Holder in writing, and (2) no such amendment or
waiver may, without the written consent of each Holder, (i) change the
percentage of the principal amount of the Notes the Holders of which are
required to consent to any such amendment or waiver or (ii) amend Section 2 or
this Section 6. No consent of the Holders or the Guarantors shall be required in
connection with the execution and delivery of a Guaranty Supplement or other
addition of any additional Guarantor, and each Guarantor, by its execution and
delivery of this Guaranty (or Guaranty Supplement) consents to the addition of
each additional Guarantor. No consent of the Holders or the Guarantors shall be
required in connection with the issuance and sale of Additional Notes, and each
Guarantor, by its execution and delivery of this Guaranty (or Guaranty
Supplement) consents to the issuance of Additional Notes pursuant to the Note
Purchase Agreement.
(b) The Guarantors will provide each Holder (irrespective of the
amount of Notes then owned by it) with sufficient information, sufficiently far
in advance of the date a decision is required, to enable such Holder to make an
informed and considered decision with respect to any proposed amendment, waiver
or consent in respect of any of the provisions hereof. The Guarantors will
deliver executed or true and correct copies of each amendment, waiver or consent
effected pursuant to the provisions of this Section 6 to each Holder promptly
following the date on which it is executed and delivered by, or receives the
consent or approval of, the requisite Holders. The Guarantors will deliver
executed copies of each executed Guaranty Supplement to each Holder promptly
following the date on which it is executed.
(c) No Guarantor will directly or indirectly pay or cause to be paid
any remuneration, whether by way of fee or otherwise, or grant any security, to
any Holder as consideration for or as an inducement to the entering into by such
Holder of any waiver or amendment of any of the terms and provisions hereof
unless such remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each Holder even if such Holder did not
consent to such waiver or amendment.
(d) Any amendment or waiver consented to as provided in this Section
6 applies equally to all Holders affected thereby and is binding upon them and
upon each future holder and upon the Guarantors. No such amendment or waiver
will extend to or affect any obligation, covenant or agreement not expressly
amended or waived or impair any right consequent thereon. No course of dealing
between the Guarantors and any Holder nor any delay in exercising any rights
hereunder shall operate as a waiver of any rights of any Holder. 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.
(e) Solely for the purpose of determining whether the Holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Guaranty, Notes directly or indirectly owned by any Guarantor, the Company or
any of their Affiliates shall be deemed not to be outstanding.
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SECTION 7. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid) or (b) by a recognized overnight delivery service (charges
prepaid). Any such notice must be sent:
(1) if to a 2007-A Note Purchaser or Additional Purchaser or
its nominee, to such 2007-A Note Purchaser or Additional Purchaser or
its nominee at the address specified for such communications in
Schedule A to the Note Purchase Agreement or Supplement, as
appropriate, or at such other address as such 2007-A Note Purchaser or
Additional Purchaser or its nominee shall have specified to any
Guarantor or the Company in writing,
(2) if to any other Holder, to such Holder at such address as
such Holder shall have specified to any Guarantor or the Company in
writing, or
(3) if to any Guarantor, to such Guarantor c/o the Company at
its address set forth at the beginning of the Note Purchase Agreement
to the attention of the Chief Financial Officer or at such other
address as such Guarantor shall have specified to the Holders in
writing.
Notices under this Section 7 will be deemed given only when actually received.
SECTION 8. MISCELLANEOUS.
(a) No remedy herein conferred upon or reserved to any Holder is
intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Guaranty now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or
power or shall be construed to be a waiver thereof but any such right or power
may be exercised from time to time and as often as may be deemed expedient. In
order to entitle any Holder to exercise any remedy reserved to it under this
Guaranty, it shall not be necessary for such Holder to physically produce its
Note in any proceedings instituted by it or to give any notice, other than such
notice as may be herein expressly required.
(b) The Guarantors will pay all sums becoming due under this Guaranty
by the method and at the address specified for such purpose for such Holder, in
the case of a Holder that is a 2007-A Note Purchaser, on Schedule A to the Note
Purchase Agreement, and in the case of a Holder that is an Additional Purchaser,
on Schedule A to the corresponding Supplement or by such other method or at such
other address as any Holder shall have from time to time specified to the
Guarantors or the Company on behalf of the Guarantors in writing for such
purpose, without the presentation or surrender of this Guaranty or any Note.
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(c) Any provision of this Guaranty that 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 (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
(d) If the whole or any part of this Guaranty shall be now or
hereafter become unenforceable against any one or more of the Guarantors for any
reason whatsoever or if it is not executed by any one or more of the Guarantors,
this Guaranty shall nevertheless be and remain fully binding upon and
enforceable against each other Guarantor as if it had been made and delivered
only by such other Guarantors.
(e) This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of each Holder and its
successors and assigns so long as its Notes remain outstanding and unpaid. If
any Guarantor enters into any consolidation or merger, pursuant to which such
Guarantor is not the surviving entity (the "Successor Corporation"), the
Successor Corporation shall execute and deliver to each Holder its assumption of
the due and punctual performance and observance of each covenant and condition
of this Guaranty (pursuant to such agreements and instruments as shall be
reasonably satisfactory to the Required Holders).
(f) This Guaranty may be executed in any number of counterparts, each
of which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
(g) 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 New
York 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.
(h) Each Guarantor irrevocably submits to the non-exclusive
jurisdiction of any New York State or federal court sitting in the Borough of
Manhattan, The City of New York, over any suit, action or proceeding arising out
of or relating to this Guaranty. To the fullest extent permitted by applicable
law, each Guarantor irrevocably waives and agrees not to assert, by way of
motion, as a defense or otherwise, any claim that it is not subject to the
jurisdiction of any such court, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
(i) Each Guarantor consents to process being served by or on behalf
of any Holder in any suit, action or proceeding of the nature referred to in
Section 8(h) by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, return receipt requested,
to it at its address specified in Section 7 or at such other address of which
such Holder shall then have been notified pursuant to said Section. Each
Guarantor agrees that such service upon receipt (1) shall be deemed in every
respect effective service of process upon it in any such suit, action or
proceeding and (2) shall, to the fullest extent permitted by applicable law, be
taken and held to be valid personal service upon and personal delivery to it.
Notices hereunder shall be conclusively presumed received as evidenced by a
delivery receipt furnished by the United States Postal Service or any reputable
commercial delivery service.
-13-
(j) Nothing in Section 8(h) or 8(i) shall affect the right of any
Holder to serve process in any manner permitted by law, or limit any right that
the Holders may have to bring proceedings against any Guarantor in the courts of
any appropriate jurisdiction or to enforce in any lawful manner a judgment
obtained in one jurisdiction in any other jurisdiction.
(k) EACH GUARANTOR HEREBY WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT
ON OR WITH RESPECT TO THIS GUARANTY OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION
HEREWITH.
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed by an authorized representative as of the date first written above.
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
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Exhibit B
(to Guaranty Agreement)