Contract
Exhibit 10.11
AMENDMENT
No. 2 (this “Amendment”) dated as
of November 30, 2007, to the CREDIT AGREEMENT dated as of November 28,
2001, as amended and restated as of December 22, 2005, and as further
amended by the Incremental Term Loan Amendment dated as of October 19, 2007 (the
“Credit
Agreement”), among COMPASS MINERALS INTERNATIONAL, INC. (f/k/a SALT
HOLDINGS CORPORATION), COMPASS MINERALS GROUP, INC., SIFTO CANADA CORP., SALT
UNION LIMITED, the LENDERS from time to time party thereto, JPMORGAN CHASE BANK,
N.A., as Administrative Agent, JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as
Canadian Agent, X.X. XXXXXX EUROPE LIMITED (f/k/a CHASE MANHATTAN INTERNATIONAL
LIMITED), as UK Agent, CALYON NEW YORK BRANCH, as Syndication Agent, and BANK OF
AMERICA, N.A. and THE BANK OF NOVA SCOTIA, as Co-Documentation
Agents.
A. Pursuant
to the Credit Agreement, the Lenders have extended credit to the Borrowers, and
have agreed to extend credit to the Borrowers, in each case pursuant to the
terms and subject to the conditions set forth therein.
B. Holdings
has requested that the Lenders agree to (a) amend the Credit Agreement in
order to permit the merger of Holdings and the US Borrower, with Holdings as the
surviving entity, and (b) amend certain other provisions of the Credit
Agreement, in each case pursuant to the terms and subject to the conditions set
forth herein.
C. The
undersigned Lenders are willing, pursuant to the terms and subject to the
conditions set forth herein, to approve such amendments.
D. Capitalized
terms used but not defined herein shall have the respective meanings assigned to
them in the Credit Agreement (as amended hereby).
Accordingly,
in consideration of the mutual agreements herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to the applicable conditions set forth herein, the
parties hereto hereby agree as follows:
SECTION
1. Amendments to Section 1.01
and Generally. Section 1.01 of the Credit Agreement is hereby
amended as follows:
(a) by
amending the definition of “Asset Sale” by deleting the text “or (q)” in clause
(f) of such Section and inserting the text “, (q) or (s)” in lieu
thereof.
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(b) by
inserting the text “prior to the consummation of the Holdings
Merger,”:
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1.
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in
the definition of “Change of Control Event”, immediately after the text
“(b)(i)”;
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2.
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in
the definition of “Consolidated Interest Expense”, immediately after the
text “, plus (c)”;
and
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3.
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in
the definition of “Consolidated Net Income”, immediately after the text “,
minus
(b)”.
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(c) by amending the definition
of “Consolidated Current Assets” by inserting the text “and the Financed
Amount of any Permitted Securitization Financing” immediately prior to the
period appearing at the end thereof.
(d) by
amending the definition of “Consolidated Debt” by inserting the text “or clause
(j)” immediately after the text “described in clause (h)”.
(e) by
deleting the definitions of “Consolidated Fixed Charge Coverage Ratio” and
“Consolidated Fixed Charges” in their entirety.
(f) by
amending the definition of “Consolidated Interest Expense” by (i) inserting
the text “plus (d) all discount, interest, yield, fees, premiums and other
similar charges or costs in respect of all Permitted Securitization Financings
for such period” immediately after the text “pursuant to Section 7.06(k),”
in clause (c) thereof and (ii) by substituting the text “in the case of
each of clauses (a)-(d)” for the text “in the case of each of clauses (a)-(c)”
immediately thereafter.
(g) by
amending the definition of “Domestic Subsidiary” by (i) inserting the text
“(a) prior to the consummation of the Holdings Merger,” immediately after
the text “each Subsidiary of” and (ii) inserting the text “and
(b) from and after the consummation of the Holdings Merger, the US
Borrower, in each case” immediately after the text “US Borrower)”.
(h) by
deleting the definition of “Holdings” in its entirety and substituting the
following text therefor:
“Holdings” shall mean
Compass Minerals International, Inc., a Delaware corporation; provided that, from
and after the consummation of the Holdings Merger, all references to “Holdings”
in this Agreement and the other Credit Documents (other than references to
“Holdings” as of a time prior to the consummation of the Holdings Merger and
references as part of another defined term or of a proper name) shall be deemed
to be references to “the US Borrower”.
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(i) by
amending the definition of “Indebtedness” by (i) substituting “,” for the
text “and” immediately before clause (i) thereof and (ii) inserting the
text “and (j) the aggregate amount of the Financed Amounts of all Permitted
Securitization Financings of Holdings and its Subsidiaries” immediately before
the proviso at the end of such definition.
(j) by
amending the definition of “Permitted Debt” by inserting the text
“, Additional Senior Notes” immediately prior to the text “and Additional
Senior Subordinated Notes”.
(k) by
amending the definitions of “Permitted Holdings Refinancing Indebtedness” and
“Permitted Subordinated Refinancing Indebtedness” by (i) deleting clause
(b) of each such definition in its entirety and inserting the following in lieu
thereof:
“(b) such
refinancing does not increase the amount of such Indebtedness outstanding
immediately prior to such refinancing (other than in an amount equal to the
fees, expenses and premiums payable in connection with such
refinancing)”
and (ii)
in the case of the definition of “Permitted Subordinated Refinancing
Indebtedness” only, inserting the text “Additional Senior Notes” immediately
after the text “Additional Senior Subordinated Notes,”.
(l) by
amending the definition of “Permitted Sale-Leaseback Transaction” by inserting
the text “Purchase Money” immediately after the text “Permitted”.
(m) by
amending the definition of “Pro Forma Basis” by (i) replacing the first comma
appearing in subclause (v) with the text “and” and (ii) deleting the text “and
the Consolidated Fixed Charge Coverage Ratio”.
(n) by
amending the definition of “Subsidiary Guarantor” by inserting the text “, prior
to the consummation of the Holdings Merger,” immediately after the text “(other
than”.
(o) by
deleting the definition of “US Borrower” in its entirety and substituting the
following text therefor:
“US Borrower” shall
mean (a) prior to the consummation of the Holdings Merger, Compass Minerals
Group, Inc., a Delaware corporation, and (b) from and after the
consummation of the Holdings Merger, Compass Minerals International, Inc., a
Delaware corporation.
(p) by
inserting the following definitions in appropriate alphabetical
order:
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“Additional Senior Note
Documents” shall mean the Additional Senior Notes and all other documents
executed and delivered with respect to the Additional Senior Notes.
“Additional Senior
Notes” shall mean unsecured senior notes of the US Borrower (i) that
do not require any scheduled payment of principal (including pursuant to a
sinking fund obligation) or mandatory redemption or redemption at the option of
the holders thereof (except for redemptions in respect of asset sales and
changes in control on terms that are market terms on the date of issuance) prior
to the date that is 91 days after the Term Loan Maturity Date or (unless
otherwise provided in the applicable Incremental Term Loan Amendment), if such
Indebtedness is incurred after the US Borrower has obtained any Incremental Term
Loans or while any Commitments from Additional Lenders to make Incremental Term
Loans remain in effect, 91 days after the maturity date for such Incremental
Term Loans, unless all such Incremental Term Loans have been repaid in full, and
(ii) that otherwise contain terms and conditions (including the maturity
thereof, the interest rate applicable thereto (provided that
Additional Senior Notes may bear interest at a rate or be issued at a discount
that together result in a yield that is a market yield at the time of issuance
thereof), amortization, defaults, voting rights, covenants and events of
default) that are on terms that are market terms on the date of
issuance.
“Financed Amount”
shall mean, at any time, with respect to any Permitted Securitization Financing,
(i) in the case of a securitization of Receivables Assets, the aggregate
amount of funding received by any Special Purpose Securitization Subsidiary
(from any Person other than Holdings or any of its Subsidiaries) under such
Permitted Securitization Financing in connection with its sale of Receivables
Assets or interests therein, net of collections applied to the reduction of such
aggregate amount of funding and excluding amounts applied to purchase fees or
discount or in the nature of interest, or (ii) in the case of a
securitization of Inventory Assets, the aggregate book value of the interests in
Inventory Assets transferred pursuant to such Permitted Securitization
Financing.
“Holdings Merger”
shall mean the merger of Compass Minerals Group, Inc., a Delaware corporation,
with and into Compass Minerals International, Inc., a Delaware corporation, with
Compass Minerals International, Inc. as the surviving corporation and there
being no consideration paid to any Person pursuant to such merger.
“Inventory Assets”
shall mean inventory from time to time owned by any Subsidiary of
Holdings.
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“Permitted Non-Purchase Money
Sale-Leaseback Transaction” shall mean any sale by the US Borrower or any
of its Subsidiaries of any asset owned by the US Borrower or such Subsidiary,
which asset, in each case, is thereafter leased by the purchaser thereof to the
US Borrower or such Subsidiary; provided that (i) the consideration for such
sale shall be entirely in cash, (ii) the consideration for such sale shall be in
an amount at least equal to 100% of the aggregate amount expended by the US
Borrower or such Subsidiary in so acquiring such asset and (iii) in each case,
the respective transaction is otherwise effected in accordance with the
applicable requirements of Section 7.02(n).
“Permitted Preferred Stock
Redemption” shall mean the redemption by Great Salt Lake Minerals
Corporation of preferred stock certificate No. P10 (representing 16,153,800
shares of preferred stock) held by Great Salt Lake Holdings, LLC pursuant to and
in accordance with the terms of the Preferred Redemption Tender
Receipt.
“Permitted Sale-Leaseback
Transaction” shall mean, collectively, Permitted Purchase Money
Sale-Leaseback Transactions and Permitted Non-Purchase Money Sale-Leaseback
Transactions.
“Permitted Securitization
Documents” shall mean all documents and agreements evidencing, relating
to or otherwise governing a Permitted Securitization Financing.
“Permitted Securitization
Financing” shall mean one or more transactions by any Subsidiary of
Holdings pursuant to which such Subsidiary may sell, convey or otherwise
transfer to one or more Special Purpose Securitization Subsidiaries any
Receivables Assets (whether now existing or arising in the future) or Inventory
Assets (whether now existing or acquired in the future) of such Subsidiary, and
all interests therein and all contracts and all supporting obligations (as
defined in the Uniform Commercial Code as in effect in the State of New York) or
other obligations in respect of such Receivables Assets, the proceeds of such
Receivables Assets or Inventory Assets and other assets that are customarily
transferred in connection with sales, factoring or securitizations involving
Receivables Assets or Inventory Assets (collectively, the “Related Assets”);
provided that
recourse to Holdings or any Subsidiary (other than the Special Purpose
Receivables Subsidiaries) in connection with such transactions shall be limited
to the extent customary for similar transactions in the applicable jurisdictions
(including in a manner consistent with the delivery of a “true sale” or
“absolute transfer” opinion with respect to any transfer by any Subsidiary
(other than a Special Purpose Securitization Subsidiary)).
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“Preferred Redemption Tender
Receipt” shall mean the Redemption Tender Receipt, from Great Salt Lake
Holdings, LLC and Great Salt Lake Minerals Corporation in the form provided to
the Administrative Agent on September 6, 2007.
“Receivables Assets”
shall mean accounts receivable (including all rights to payment created by or
arising from sales of goods, leases of goods or the rendition of services, no
matter how evidenced (including in the form of chattel paper) and whether or not
earned by performance) from time to time originated, acquired or otherwise owned
by any Subsidiary of Holdings.
“Related Assets” has
the meaning set forth in the definition of “Permitted Securitization
Financing”.
“Special Purpose
Securitization Subsidiary” shall mean a wholly-owned limited purpose
Subsidiary of the U.S. Borrower established in connection with, and that engages
only in, one or more Permitted Securitization Financings and that is organized
in a customary manner intended to reduce the likelihood that it would be
substantively consolidated with Holdings, the U.S. Borrower or any of the
Subsidiaries in the event Holdings, the U.S. Borrower or any such Subsidiary
becomes subject to a proceeding under the Bankruptcy Code (or other insolvency
law).
In
addition to the foregoing, from and after the effective date of this Amendment,
each reference in the Credit Agreement to the terms “Permitted Subordinated
Refinancing Indebtedness” and “Permitted Subordinated Refinancing Documents”
(including, in each case, in the definitions of those terms) shall be deemed to
be a reference to “Permitted Subordinated / Senior Refinancing Indebtedness” and
“Permitted Subordinated / Senior Refinancing Documents”,
respectively.
SECTION
2. Amendments to Section
2.23. (a)Section 2.23(a) of the Credit Agreement is hereby
amended by (i) deleting the text “4.25” in clause (i)(B) in the proviso of
the first sentence thereof and substituting the text “4.75” therefor
(ii) deleting the text “and (ii)” in the proviso of the first sentence
thereof and substituting the text “(ii) prior to the consummation of the
Holdings Merger,” therefor, (iii) adding the following text immediately
before the period at the end of such first sentence:
“; and
(iii) from and after the consummation of the Holdings Merger, the US
Borrower shall, promptly after the US Borrower receives the proceeds from the
incurrence of any Incremental Term Loans, utilize the proceeds of such
Incremental Term Loans to redeem, repurchase or repay Holdings Notes or
Permitted Holdings Refinancing Indebtedness in accordance with
Section 7.12(a)(iv) (and, at the option of the US Borrower, pay related
transaction costs)”,
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and
(iv) adding the text “Additional Senior Notes and” immediately prior to the
text “Additional Senior Subordinated Notes” in the first parenthetical in
clause (a) of the second sentence thereof.
(b) Section
2.23(b) of the Credit Agreement is hereby amended by inserting the text “(prior
to the consummation of the Holdings Merger)” in the second sentence thereof
immediately after the text “executed by Holdings”.
SECTION
3. Amendment to Section
5.08. Section 5.08 of the Credit Agreement is hereby amended
by deleting such Section in its entirety and inserting the text “[Intentionally
Omitted]” in lieu thereof.
SECTION
4. Amendments to Section
6.01. (a) Section 6.01(c) of the Credit Agreement
is hereby amended by deleting the text “(i)” and the text “and (ii) in
summary form for each of the four fiscal years immediately following such fiscal
year, in each case”.
(b) Section
6.01(d) of the Credit Agreement is hereby amended by (i) deleting the text “and
the Consolidated Fixed Charge Coverage Ratio for the four fiscal quarter period
ended on such last day” from clause (i)(B) thereof and (ii) inserting the text
“prior to the consummation of the Holdings Merger,” in clause (i)(C) thereof
immediately before the text “a reasonably detailed summary of the
differences”.
SECTION
5. Amendment to Section
6.11. Section 6.11(a) of the Credit Agreement is hereby
amended by inserting the following text immediately before the period at the end
of such Section: “), provided that no
Special Purpose Securitization Subsidiary shall be subject to the requirements
of this Section 6.11(a)”.
SECTION
6. Amendment to Section
6.16. Section 6.16 of the Credit Agreement is hereby amended
by inserting the text “Prior to the consummation of the Holdings Merger,” at the
beginning of the first sentence thereof.
SECTION
7. Amendments to Section
6.17. Section 6.17 of the Credit Agreement is hereby amended
by deleting such Section in its entirety and inserting the text “[Intentionally
Omitted]” in lieu thereof:
SECTION
8. Amendments to Section
7.01. (a)Section 7.01(a) of the Credit Agreement is hereby
amended by inserting the text “and, in the case of any Special Purpose
Securitization Subsidiary, Permitted Securitization Financings” immediately
before the period at the end of such Section.
(b) Section
7.01(c) of the Credit Agreement is hereby amended by inserting the text “prior
to the consummation of the Holdings Merger,” immediately after the text “to the
contrary,”.
SECTION
9. Amendments to
Section 7.02. (a) Section 7.02 (n) of the Credit
Agreement is hereby amended by deleting such Section in its entirety and
inserting the following in lieu thereof:
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(n) the
US Borrower or any of its Subsidiaries may effect Permitted Sale-Leaseback
Transactions in accordance with the definition thereof; provided that (i) the
aggregate amount of all proceeds received by the US Borrower and its
Subsidiaries from all Permitted Purchase Money Sale-Leaseback Transactions
consummated on and after the Effective Date shall not exceed $25,000,000, (ii)
the aggregate amount of all proceeds received by the US Borrower and its
Subsidiaries from all Permitted Non-Purchase Money Sale-Leaseback Transactions
consummated on and after the Effective Date shall not exceed $50,000,000 and
(iii) the Net Sale Proceeds from all such Permitted Sale-Leaseback Transactions
are applied to repay Term Loans as provided in Section 2.12(c) and/or reinvested
in replacement assets or retained to the extent permitted by Section
2.12(c);
(b) Section
7.02 of the Credit Agreement is hereby amended by (i) deleting the text
“and” at the end of Section 7.02(p), and (ii) inserting the following
text immediately before the period at the end of
Section 7.02(q):
“;
(r) the
Holdings Merger; provided that
(i) no Default or Event of Default has occurred and is continuing at the
time of, or will arise after giving effect to, the Holdings Merger and
(ii) the Administrative Agent receives, within two Business Days after the
date of consummation of the Holdings Merger, a copy of the certificate of merger
filed with the Delaware Secretary of State to effect the Holdings Merger
certified by the Delaware Secretary of Sate; and
(s) sales
of Receivables Assets, Inventory Assets and Related Assets under any Permitted
Securitization Financing permitted by Section 7.04(p); and
(t) the
Permitted Preferred Stock Redemption.”
SECTION
10. Amendments to Section
7.03. (a)Section 7.03(j) of the Credit Agreement is hereby
amended by inserting the text (i) “(A) prior to the consummation of
the Holdings Merger,” immediately prior to the text “any asset of Holdings” and
(ii) “(B) at any time,” immediately prior to the text “any other
asset”.
(b) Section
7.03(m) of the Credit Agreement is hereby amended by inserting the text
(i) “(A) prior to the consummation of the Holdings Merger,”
immediately prior to the text “any asset of Holdings” and (ii) “(B) at
any time,” immediately prior to the text “any other asset”.
(c) Section 7.03
of the Credit Agreement is hereby amended by deleting the text “and” at the end
of Section 7.03(p) and inserting the following text immediately before the
period at the end of Section 7.03(q):
“;
and
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(r) Liens
on Receivables Assets, Inventory Assets and Related Assets incurred in
connection with any Permitted Securitization Financing permitted pursuant to
Section 7.04(p)”.
SECTION
11. Amendments to Section
7.04. (a)Sections 7.04(f) and (g) of the Credit Agreement are
hereby amended by, in each case, deleting each reference to “Guaranty” (other
than the last reference) in the proviso thereof and inserting the text
“guarantee” in lieu thereof.
(b) Section
7.04(h) of the Credit Agreement is hereby amended by adding the following
proviso at the end of such Section:
“ provided that no
Subsidiary of Holdings shall guarantee any Indebtedness or other obligations
under the Holdings Notes or any Permitted Holdings Refinancing Indebtedness
unless such Subsidiary is a US Credit Party;”.
(c) Sections 7.04(n)
and (o) of the Credit Agreement are hereby amended by deleting such Sections in
their entirety and inserting the following in lieu thereof:
(n)
unsecured Indebtedness of the US Borrower incurred under any Additional Senior
Subordinated Notes and any Additional Senior Subordinated Note Documents or
under any Additional Senior Notes and any Additional Senior Note Documents (and
any unsecured guaranty of such Indebtedness by any other US Credit Party that is
a Subsidiary Guarantor) in an aggregate principal amount not to exceed
$200,000,000; provided that
(i) at the time of any such issuance of Additional Senior Subordinated
Notes or Additional Senior Notes (and after giving effect thereto), (A) no
Default or Event of Default shall have occurred and be continuing, (B) on a
Pro Forma Basis (including, to the extent any Permitted Acquisition or
Subsidiary Redesignation has occurred during the applicable Test Period, giving
effect to such Permitted Acquisition and/or Subsidiary Redesignation on a Pro
Forma Basis) after giving effect to the issuance of such Additional Senior
Subordinated Notes or Additional Senior Notes, as the case may be, and the
application of the proceeds therefrom (1) the US Borrower shall be in
compliance with Section 7.09 and Section 7.10 of this Agreement
computed as if such Additional Senior Subordinated Notes or Additional Senior
Notes, as the case may be, had been outstanding during the most recently ended
period of four consecutive fiscal quarters of the US Borrower and (2) the
Adjusted Total Leverage Ratio is less than or equal to 4.75 to 1.00 as of the
last day of the most recently ended four fiscal quarters of the US Borrower and
(C) the US Borrower has delivered to the Administrative Agent a certificate
to the effect set forth in clauses (A) and (B) above, together with all
relevant calculations related thereto, and (ii) no Subsidiary of Holdings
shall guaranty any Indebtedness or other
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obligations
under such Additional Senior Subordinated Notes or Additional Senior Notes, as
the case may be, unless such Subsidiary is a US Credit Party and, if such
Indebtedness arises under Additional Senior Subordinated Notes, such guaranty is
subordinated to the guaranty pursuant to the US Collateral and Guaranty
Agreement on terms no less favorable to the Lenders than the subordination
provisions of such Additional Senior Subordinated Notes;
(o)
unsecured Indebtedness of the US Borrower incurred under any Additional Senior
Subordinated Notes and any Additional Senior Subordinated Note Documents or
under Additional Senior Notes and any Additional Senior Note Documents (and any
unsecured guaranty of such Indebtedness by any other US Credit Party that is a
Subsidiary Guarantor) in an aggregate principal amount not to exceed
$325,000,000 (less the aggregate principal amount of Incremental Term Loans made
pursuant to Section 2.23); provided that
(i) at the time of any such issuance of Additional Senior Subordinated
Notes or Additional Senior Notes, as the case may be (and after giving effect
thereto), (A) no Default or Event of Default shall have occurred and be
continuing, (B) on a Pro Forma Basis (including, to the extent any Permitted
Acquisition or Subsidiary Redesignation has occurred during the applicable Test
Period, giving effect to such Permitted Acquisition and/or Subsidiary
Redesignation on a Pro Forma Basis) after giving effect to the issuance of such
Additional Senior Subordinated Notes or Additional Senior Notes, as the case may
be, and the application of the proceeds therefrom (1) the US Borrower shall be
in compliance with Section 7.09 and Section 7.10 of this Agreement
computed as if such Additional Senior Subordinated Notes or Additional Senior
Notes, as the case may be, had been outstanding during the most recently ended
period of four consecutive fiscal quarters of the US Borrower and (2) the
Adjusted Total Leverage Ratio is less than or equal to 4.75 to 1.00 as of the
last day of the most recently ended four fiscal quarters of the US Borrower and
(C) the US Borrower has delivered to the Administrative Agent a certificate
to the effect set forth in clauses (A) and (B) above, together with all relevant
calculations related thereto, and (ii) promptly after the date on which
Holdings or any of its Subsidiaries receives any Net Cash Proceeds from the
issuance of any such Additional Senior Subordinated Notes or Additional Senior
Notes, as the case may be, an amount equal to the amount of such Net Cash
Proceeds shall be applied pursuant to Section 7.12(a)(iv) to repay or
repurchase Holdings Notes or Permitted Holdings Refinancing Indebtedness; and
provided further that no
Subsidiary of Holdings shall guaranty any Indebtedness or other obligations
under such Additional Senior Subordinated Notes or Additional Senior Notes, as
the case may be, unless such Subsidiary is a US Credit Party and, if such
Indebtedness arises under Additional Senior Subordinated Notes, such guaranty is
subordinated to the guaranty pursuant to the US Collateral and Guaranty
Agreement on terms no less favorable to the Lenders than the
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subordination
provisions of such Additional Senior Subordinated Notes; and
(p) Indebtedness
of any Special Purpose Securitization Subsidiary incurred under any Permitted
Securitization Financing to the extent that the aggregate Financed Amount of all
such Permitted Securitization Financings outstanding at any one time does not
exceed $50,000,000.
SECTION
12. Amendments to Section
7.05. Section 7.05 of the Credit Agreement is hereby amended
by deleting the text “and” at the end of Section 7.05(o) and inserting the
following text immediately before the period at the end of
Section 7.05(p):
“; and
(q) the
U.S. Borrower and any of its Subsidiaries may make Investments required in
connection with a Permitted Securitization Financing permitted pursuant to
Section 7.04(p)”.
SECTION
13. Amendments to Section
7.06. (a)Sections 7.06(b) and (c) of the Credit Agreement are
hereby amended by inserting, in each case, the text “, prior to the consummation
of the Holdings Merger,” immediately after the text “US Borrower
may”.
(b) Sections
7.06(e), (f), (h), (i), (k) and (l) of the Credit Agreement are hereby amended
by inserting, in each case, the text “prior to the consummation of the Holdings
Merger,” at the beginning thereof.
(c) Section
7.06(j) of the Credit Agreement is hereby amended by deleting such Section in
its entirety and inserting the following in lieu thereof:
(j)
(i) prior to the consummation of the Holdings Merger, the US Borrower may pay
cash Dividends to Holdings and repurchase the Borrower’s common stock from
Holdings, so long as the proceeds thereof are promptly used by Holdings to pay
(and Holdings may use such proceeds to pay) regular quarterly cash Dividends
with respect to Holdings Common Stock or repurchase common stock and
(ii) from and after the consummation of the Holdings Merger, Holdings may
pay regular quarterly cash Dividends with respect to Holdings Common Stock or
repurchase common stock; provided that no such
Dividend or repurchase of common stock under clause (i) or (ii) of this
paragraph (j) shall be made unless (A) the aggregate amount of such
payments in each fiscal year of the US Borrower does not exceed the sum of
(1) $55,000,000 and (2) 50% of Consolidated Net Income (calculated
solely for this purpose without regard to clauses (a)(i) through (a)(iii) of the
definition of “Consolidated Net Income”) for the immediately preceding fiscal
year, (B) at the time of the payment of such Dividends or repurchase of
common stock and after giving effect thereto no Default or Event of Default
shall have occurred
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and be
continuing, (C) on a Pro Forma Basis after giving effect to the payment of
such Dividends or repurchase of common stock (1) the US Borrower is in
compliance with Section 7.09 and Section 7.10 as of the last day of the most
recently ended four fiscal quarters of the US Borrower and (2) the Adjusted
Total Leverage Ratio is less than or equal to 4.75 to 1.00 as of the last day of
the most recently ended four fiscal quarters of the US Borrower and (D) prior to
the payment of any such Dividend or repurchase of common stock, if requested by
the Administrative Agent, the Administrative Agent shall have received a
certificate, dated the date of the payment of such Dividend and signed by the
chief financial officer of the US Borrower, confirming compliance with clauses
(A), (B) and (C) above and containing the calculations necessary for
demonstrating such compliance;
(d) Section
7.06(k) of the Credit Agreement is hereby amended by (i) deleting the text
“(1)” and the text “and (2) the Consolidated Fixed Charge Coverage Ratio is
greater than or equal to 1.25 to 1.00 as of the last day of the most recently
ended four fiscal quarters of the US Borrower” from clause (D) of Section
7.06(k) and (ii) by deleting the text “and” at the end of
Section 7.06(k), deleting the text “.” at the end of Section 7.06(l)
and inserting the following text at the end of
Section 7.06(l):
“;
and
(m) Great
Salt Lake Minerals Corporation may effect the Permitted Preferred Stock
Redemption.”
SECTION
14. Amendment to Section
7.07. Section 7.07 of the Credit Agreement is hereby amended
by deleting the text “and” at the end of Section 7.07(f) and inserting the
following text immediately before the period at the end of such
Section: “; and (h) transactions pursuant to any Permitted
Securitization Financing and the Permitted Preferred Stock
Redemption”.
SECTION
15. Amendment to Section
7.09. Section 7.09 of the Credit Agreement is hereby amended
by deleting the first sentence thereof in its entirety and inserting the
following in lieu thereof:
“The US
Borrower will not permit the Consolidated Interest Coverage Ratio for any Test
Period ending on the last day of any fiscal quarter of the US Borrower ending on
or after December 31, 2007, to be less than
2.50:1.00.”
; provided, however, that such
amendment shall not affect the obligations of the US Borrower with respect to
any period ended on or before November 30, 2007.
Page
12
SECTION
16. Amendment to Section
7.10. Section 7.10 of the Credit Agreement is hereby amended
by deleting the table at the end thereof and inserting the following table in
lieu thereof:
|
Period
|
Ratio
|
|
December
31, 2007 to March 31, 2008
|
5.25:1.0
|
|
April 1,
2008 to March 31, 2009
|
5.00:1.0
|
|
April 1,
2009 to March 31, 2010
|
4.75:1.0
|
|
April 1,
2010 to Thereafter
|
4.50:1.0
|
; provided, however, that such
amendment shall not affect the obligations of the US Borrower with respect to
any period ended on or before November 30, 2007.
SECTION
17. Amendment to Section
7.11. (a) Section 7.11(a) of the Credit Agreement is hereby
amended by deleting such Section in its entirety and inserting the following in
lieu thereof:
(a) Holdings
will not, and will not permit any of its Subsidiaries to, make any Capital
Expenditures, except that during any fiscal year, the US Borrower and any of its
Subsidiaries may make Capital Expenditures, so long as the aggregate amount of
such Capital Expenditures does not exceed in any fiscal year the sum of (A)
$95,000,000 plus (B) for any fiscal year ending on or after December 31,
2008, for each Acquired Business acquired after December 31, 2007 and prior
to the first day of the respective fiscal year, 25% of the Acquired EBITDA of
such Acquired Business for the trailing twelve months of such Acquired Business
immediately preceding its acquisition for which financial statements for such
Acquired Business have been made available to the US Borrower and the Lenders
plus (C) for any fiscal year ending on or after December 31, 2008, for each
Acquired Business acquired during the respective fiscal year, the amount for
such Acquired Business specified in preceding clause (B) multiplied by a
percentage, the numerator of which is the number of days in the fiscal year
after the date of the respective acquisition and the denominator of which is 365
or 366, as the case may be.
(b) Section
7.11(b) of the Credit Agreement is hereby amended by deleting the text “set
forth in the table above” in such Section.
SECTION
18. Amendment to Section
7.12. (a) Section 7.12(a) of the Credit Agreement is hereby
amended by (i) inserting the text “Additional Senior Notes,” immediately
prior to each occurrence of the text “Additional Senior Subordinated Notes”
therein, (ii) deleting the text “2.75” in clause (iii)(B) in the proviso
thereof and substituting the text “3.25” therefor and (iii) deleting the
text “4.25” in clause (iv)(B) in the proviso thereof and substituting the text
“4.75” therefor.
(b) Section
7.12(c) of the Credit Agreement is hereby amended by inserting the text “or of
Great Salt Lake Minerals Corporation to amend and restate its articles of
incorporation to make conforming changes reflecting the Permitted Preferred
Stock Redemption after the consummation thereof” immediately before the period
at the end of such Section.
Page
13
SECTION
19. Amendment to Section
7.14. Section 7.14 of the Credit Agreement is hereby amended
by substituting the text “,” for the text “and” at the end of
Section 7.14(N) and inserting the following text immediately before the
period at the end of such Section: “, and (P) customary
restrictions with respect to any Special Purpose Securitization Subsidiary
contained in any Permitted Securitization Document entered into in
connection with a Permitted Securitization Financing permitted pursuant to
Section 7.04(p)”.
SECTION
20. Amendment to Section
8.04. (a) Section 8.04 of the Credit Agreement is hereby
amended by inserting the following text immediately after the text “prior to the
stated maturity thereof;” at the end of Section 8.04(b): “or (c)
any event shall occur or condition shall exist the effect of which is to cause,
or permit any participant or participants in a Permitted Securitization
Financing (or a trustee or agent on behalf of such participant or participants)
to cause (determined without regard to whether any notice is required) the
purchase of Receivables Assets or Inventory Assets under such Permitted
Securitization Financing to terminate prior to the stated maturity
thereof;”.
(b) The
proviso of Section 8.04 of the Credit Agreement is hereby amended by
(i) deleting each occurrence of the text “clause (a) or (b)” in the proviso
thereof and inserting the text “clause (a), (b) or (c)” in lieu thereof and
(ii) inserting the text “(or, in the case of clause (c), the Financed
Amounts then outstanding under such Permitted Securitization Financing)”
immediately following the first occurrence of the term “Indebtedness” and
inserting the text “(or, in the case of clause (c), such Financed Amounts)”
immediately following the second occurrence of the term
“Indebtedness”.
SECTION
21. Amendment to Section
10.06. Section 10.06 of the Credit Agreement is hereby amended
by deleting each reference to “Consolidated Fixed Charges” and “Consolidated
Fixed Charge Coverage Ratio” contained therein.
SECTION
22. Amendment to Section
10.11. Section 10.11 of the Credit Agreement is hereby amended
by adding the following text at the end thereof:
“Notwithstanding
the foregoing, after the consummation of the Permitted Preferred Stock
Redemption, the Administrative Agent and/or the Collateral Agent, as applicable,
may, without the consent of any other Lender, execute and deliver such releases
and/or waivers to the Security Documents as are necessary to reflect the tender,
redemption and cancellation of preferred stock certificate No. P10 of Great
Salt Lake Minerals Corporation.”
SECTION
23. Amendments to Security
Documents; Intercreditor Agreements. (a) The
Lenders hereby authorize the Administrative Agent or Collateral Agent, as
applicable, to enter into, to the extent necessary or desirable in the
reasonable judgment of the Administrative Agent or Collateral Agent, as
applicable, (i) amendments with respect to the Security Documents in
connection with the Holdings Merger or any Permitted Securitization Financing
and (ii) an intercreditor agreement with respect to any Permitted
Securitization Financing.
Page
14
(b) Section
4.03(i) of the US Collateral and Guaranty Agreement is hereby amended by
replacing the text “$250,000” in such Section with the text
“$2,000,000”.
SECTION
24. Assignment and Assumption
Upon Holdings Merger. Effective immediately upon the
consummation of the Holdings Merger, automatically and without further action
required by any party hereto or any other Person, Compass Minerals
International, Inc. hereby assumes and agrees to comply with all obligations of
the US Borrower under the Credit Agreement and under the other Loan Documents
(such assumption, the “Assumption”). On
and after the Assumption, Compass Minerals International, Inc. will be bound as
the “US Borrower” in all respects by all the terms and conditions of the Credit
Agreement (as then amended) and each other Loan Document (as then amended) to
which Compass Minerals Group, Inc. was a party immediately prior to the Holdings
Merger, as if Compass Minerals International, Inc. were the US Borrower
hereunder and thereunder.
SECTION
25. Representations and
Warranties. Each of Holdings and the Borrowers represents and
warrants to the Administrative Agent and the Lenders that:
(a) This
Amendment has been duly authorized, executed and delivered by each of Holdings
and the Borrowers and constitutes a legal, valid and binding obligation of each
of Holdings and the Borrowers, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at
law.
(b) None of
the execution, delivery or performance by any of Holdings or the Borrowers of
this Amendment or the compliance by any of Holdings or the Borrowers with the
terms and provisions hereof (i) will contravene any material provision of
any applicable law, statute, rule or regulation, or any order, writ, injunction
or decree of any Governmental Authority, (ii) will conflict or be
inconsistent with, or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of Holdings or any Borrower or any of their
respective Subsidiaries pursuant to the terms of any indenture, mortgage, deed
of trust, loan agreement, credit agreement or any other material agreement or
instrument to which Holdings or any Borrower or any of their respective
Subsidiaries is a party or by which Holdings or any Borrower or any of their
respective Subsidiaries or any of the property or assets of Holdings or any
Borrower or any of their respective Subsidiaries are bound or to which Holdings
or any Borrower or any of their respective Subsidiaries may be subject or (iii)
will violate any provision of the certificate or articles of incorporation,
by-laws, certificate of partnership, partnership agreement, certificate of
limited liability company, limited liability company agreement or equivalent
organizational document, as the
Page
15
case may
be, of Holdings or any Borrower or any of their respective
Subsidiaries.
(c) The
representations and warranties of each of Holdings and each Borrower set forth
in the Credit Documents are true and correct on and as of the date hereof,
except to the extent such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties are true and
correct as of such earlier date.
(d) Immediately
prior to and after giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing.
SECTION
26. Amendment
Fee. In consideration of the agreements of the Lenders
contained in this Amendment, the US Borrower agrees to pay to the Administrative
Agent, for the account of each consenting Lender that delivers an executed
counterpart of this Amendment to the Administrative Agent prior to 12:00 p.m.,
New York City time, on November 30, 2007, an amendment fee in an amount
equal to 0.20% of such Lender’s Revolving Loan Commitments and outstanding Term
Loans as of such date.
SECTION
27. Conditions to
Effectiveness. This Amendment shall become effective as of the
date first above written when (a) the Administrative Agent shall have
received counterparts of this Amendment that, when taken together, bear the
signatures of Holdings, each Borrower and the Required Lenders and (b) all
fees and expenses required to be paid or reimbursed by the US Borrower under or
in connection with the Credit Agreement shall have been paid or reimbursed, as
applicable.
SECTION
28. Credit
Agreement. Except as specifically set forth herein, this
Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the Lenders, any
Agent, the Collateral Agent, Holdings or any Borrower under the Credit Agreement
or any other Credit Document, and shall not alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement or any other Credit Document, all of which are
ratified and affirmed in all respects and shall continue in full force and
effect. Nothing herein shall be deemed to entitle Holdings or any
Borrower to a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained
in the Credit Agreement or any other Credit Document in similar or different
circumstances. After the date hereof, any reference to the Credit
Agreement shall mean the Credit Agreement as amended hereby. This
Amendment shall be a Credit Document for all purposes.
SECTION
29. Applicable
Law. THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION
30. Counterparts. This
Amendment may be executed in two or more counterparts, each of which shall
constitute an original but all of which when
Page
16
SECTION
31. taken
together shall constitute but one agreement. Delivery of an executed
signature page to this Amendment by facsimile or other electronic transmission
shall be effective as delivery of a manually signed counterpart of this
Amendment.
SECTION
32. Expenses. The
US Borrower agrees to reimburse the Administrative Agent for its out-of-pocket
expenses in connection with this Amendment, including the reasonable fees,
charges and disbursements of Cravath, Swaine & Xxxxx LLP, counsel for
the Administrative Agent.
SECTION
33. Headings. The
Section headings used herein are for convenience of reference only, are not part
of this Amendment and are not to affect the construction of, or to be taken into
consideration in interpreting, this Amendment.
Page
17
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
written above.
|
COMPASS
MINERALS INTERNATIONAL, INC.,
|
|
|
by
|
|
|
Name:
Title:
|
|
|
COMPASS
MINERALS GROUP, INC., as US Borrower,
|
|
|
by
|
|
|
Name:
Title:
|
|
|
SIFTO
CANADA CORP., as Canadian Borrower,
|
|
|
by
|
|
|
Name:
Title:
|
|
|
SALT
UNION LIMITED, as UK Borrower,
|
|
|
by
|
|
|
Name:
Title:
|
|
|
JPMORGAN
CHASE BANK, N.A., as Administrative Agent and as a
Lender,
|
|
|
by
|
|
|
Name:
Title:
|
|
Signature
Page to Compass Minerals Credit Agreement Amendment No. 2
Each of
the following Credit Parties hereby acknowledges and agrees to the amendment to
the US Collateral and Guaranty Agreement set forth in Section 23(b) of this
Amendment.
|
XXXXX
SALT COMPANY,
|
|
|
by
|
|
|
Name:
|
|
|
Title:
|
|
|
GREAT
SALT LAKE MINERALS CORPORATION,
|
|
|
by
|
|
|
Name:
|
|
|
Title:
|
|
|
GSL
CORPORATION,
|
|
|
by
|
|
|
Name:
|
|
|
Title:
|
|
|
NAMSCO
INC.,
|
|
|
by
|
|
|
Name:
|
|
|
Title:
|
|
|
NORTH
AMERICAN SALT COMPANY,
|
|
|
by
|
|
|
Name:
|
|
|
Title:
|
|
|
COMPASS
RESOURCES, INC.,
|
|
|
by
|
|
|
Name:
|
|
|
Title:
|
|
|
GREAT
SALT LAKE HOLDINGS, LLC,
|
|
|
by
|
|
|
Name:
|
|
|
Title:
|
|
Signature
Page to Compass Minerals Credit Agreement Amendment No. 2
SIGNATURE
PAGE TO AMENDMENT NO. 2, DATED AS OF THE DAY AND YEAR FIRST WRITTEN ABOVE,
TO COMPASS MINERALS INTERNATIONAL, INC. CREDIT AGREEMENT
To
Approve the Amendment:
Name of
Institution:
by
Name:
Title:
Signature
Page to Compass Minerals Credit Agreement Amendment No. 2
