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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<PAGE>
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
<PAGE>
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
----------
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."
<PAGE>
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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<PAGE>
(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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<PAGE>
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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<PAGE>
(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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<PAGE>
(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, fore