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Exhibit 10(m)(4)
OIL-DRI CORPORATION OF AMERICA
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FIRST AMENDMENT
DATED AS OF JANUARY 15, 2001
TO
NOTE AGREEMENT
DATED AS OF APRIL 15, 1993
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RE: $6,500,000 7.17% SENIOR NOTES
DUE AUGUST 15, 2004
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FIRST AMENDMENT TO NOTE AGREEMENT
THIS FIRST AMENDMENT dated as of January 15, 2001 (this "First Amendment")
to the Note Agreement dated as of April 15, 1993 is between Oil-Dri Corporation
of America, a Delaware corporation (the "Company"), and Teachers Insurance and
Annuity Association of America (the "Noteholder").
RECITALS:
A. The Company and the Noteholder have heretofore entered into the Note
Agreement dated as of April 15, 1993 (the "Note Agreement"). The Company has
heretofore issued the $6,500,000 7.17% Senior Notes due August 15, 2004 (the
"Notes") pursuant to the Note Agreement. The Noteholder is the holder of 100% of
the outstanding principal amount of the Notes.
B. The Company and the Noteholder now desire to amend the Note Agreement
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 Agreement unless herein defined or the context
shall otherwise require.
D. All requirements of law have been fully complied with and all other
acts and things necessary to make this First 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 Noteholder, in consideration of good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, do hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1 Section 5.17(f) of the Note Agreement shall be and is hereby amended by
inserting the words "and ss.5.19" after the words "ss.5.6 through ss.5.17" in
the fifth and sixth lines thereof.
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1.2 A new Section 5.19 is hereby added to the Note Agreement to read as
follows:
SECTION 5.19. FIXED CHARGES COVERAGE RATIO. The Company will not
permit the Fixed Charges Coverage Ratio for any period of four
consecutive fiscal quarters ending at any time during any period
specified below to be less than the ratio set forth opposite such
period:
PERIOD ENDING RATIO
November 1, 2000 - April 30, 2001 1.00 to 1
May 1, 2001 - October 31, 2001 1.15 to 1
November 1, 2001 - July 31, 2002 1.25 to 1
August 1, 2002 and thereafter 1.50 to 1
1.3 Section 6.1(f) of the Note Agreement shall be and is hereby amended by
inserting the words "and ss.5.19" after the words "ss.5.6 through ss.5.13" in
the second line thereof.
1.4 Section 8.1 of the Note Agreement shall be and is hereby amended by
adding the following definitions in appropriate alphabetical order:
"CONSOLIDATED INCOME AVAILABLE FOR FIXED CHARGES" means, with respect to
any period, Consolidated Net Income for such period plus all amounts
deducted in the computation thereof on account of (a) Fixed Charges and (b)
taxes imposed on or measured by income or excess profits.
"CONSOLIDATED NET INCOME" means, with reference to any period, the net
income (or loss) of the Company and its Restricted Subsidiaries for such
period (taken as a cumulative whole), as determined in accordance with GAAP,
after eliminating all offsetting debits and credits between the Company and
its Restricted Subsidiaries and all other items required to be eliminated in
the course of the preparation of consolidated financial statements of the
Company and its Restricted Subsidiaries in accordance with GAAP, PROVIDED
that there shall be excluded:
(a) the income (or loss) of any Person accrued prior to the date it
becomes a Restricted Subsidiary or is merged into or consolidated with
the Company or a Restricted Subsidiary, and the income (or loss) of any
Person, substantially all of the assets of which have been acquired in
any manner, realized by such other Person prior to the date of
acquisition,
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(b) the income (or loss) of any Person (other than a Restricted
Subsidiary) in which the Company or any Restricted Subsidiary has an
ownership interest, except to the extent that any such income has been
actually received by the Company or such Restricted Subsidiary in the
form of cash dividends or similar cash distributions,
(c) the undistributed earnings of any Subsidiary to the extent that
the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary,
(d) any restoration to income of any contingency reserve (excluding
a contingency reserve established in the ordinary course of business,
such as reserves for uncollectable accounts), except to the extent that
provision for such reserve was made out of income accrued during such
period,
(e) any aggregate net gain (but not any aggregate net loss) during
such period arising from the sale, conversion, exchange or other
disposition of capital assets (such term to include, without limitation,
(i) all non-current assets and, without duplication, (ii) the following,
whether or not current: all fixed assets, whether tangible or intangible,
all inventory sold in conjunction with the disposition of fixed assets,
and all Securities),
(f) any gains resulting from any write-up of any assets (but
not any loss resulting from any write-down of any assets),
(g) any net gain from the collection of the proceeds of life
insurance policies,
(h) any gain arising from the acquisition of any Security, or
the extinguishment, under GAAP, of any Debt, of the Company or any
Subsidiary,
(i) any net income or gain (but not any net loss) during such
period from (i) any change in accounting principles in accordance with
GAAP, (ii) any prior period adjustments resulting from any change in
accounting principles in accordance with GAAP, (iii) any extraordinary
items, or (iv) any discontinued operations or the disposition thereof,
(j) any deferred credit representing the excess of equity in
any Restricted Subsidiary at the date of acquisition over the cost of
the investment in such Restricted Subsidiary,
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(k) in the case of a successor to the Company by
consolidation or merger or as a transferee of its assets, any earnings
of the successor corporation prior to such consolidation, merger or
transfer of assets, and
(l) any portion of such net income that cannot be freely
converted into United States Dollars.
"DEBT" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the
ordinary course of business but including, without limitation, all
liabilities created or arising under any conditional sale or other title
retention agreement with respect to any such property);
(c) its Capitalized Rentals;
(d) all liabilities for borrowed money secured by any lien with
respect to any property owned by such Person (whether or not it has
assumed or otherwise become liable for such liabilities); and
(e) any Guaranties of such Person with respect to liabilities
of a type described in any of clauses (a) through (d) hereof.
Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (e) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP.
"FIXED CHARGES" means, with respect to any period, the sum of (a)
Interest Charges for such period and (b) Rentals (other than Capitalized
Rentals) for such period.
"FIXED CHARGES COVERAGE RATIO" means, at any time, the ratio of (a)
Consolidated Income Available for Fixed Charges for the period of four
consecutive fiscal quarters ending on, or most recently ended prior to, such
time to (b) Fixed Charges for such period of four consecutive fiscal quarters.
"INTEREST CHARGES" means, with respect to any period, the sum (without
duplication) of the following (in each case, eliminating all offsetting debits
and credits between the Company and its Restricted Subsidiaries and all other
items required to be eliminated in the course of the preparation of consolidated
financial statements of the
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Company and its Restricted Subsidiaries in accordance with GAAP): (a) all
interest in respect of Debt of the Company and its Restricted Subsidiaries
(including imputed interest on Capitalized Leases) deducted in determining
Consolidated Net Income for such period, less interest income of the Company and
its Restricted Subsidiaries included in Consolidated Net Income for such period
and (b) all debt discount and expense amortized or required to be amortized in
the determination of Consolidated Net Income for such period.
SECTION 2. MISCELLANEOUS.
2.1 This First Amendment shall be construed in connection with and as part
of the Note Agreement and except as modified and expressly amended by this First
Amendment, all terms, conditions and covenants contained in the Note Agreement
and the Notes are hereby ratified and shall be and remain in full force and
effect.
2.2 Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this First Amendment
may refer to the Note Agreement without making specific reference to this First
Amendment but nevertheless all such references shall include this First
Amendment unless the context otherwise requires.
2.3 The descriptive headings of the various Sections or parts of this First
Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
2.4 This First Amendment shall be governed by and construed in accordance
with Illinois law.
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2.5 The execution hereof by the parties hereto shall constitute a contract
among such parties for the uses and purposes hereinabove set forth, and this
First 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:______________________________
Accepted and Agreed to: TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By:______________________________
