Contract
Exhibit
10.10
INCREMENTAL
TERM LOAN AMENDMENT dated as of October 19, 2007 (this “Amendment”), among
COMPASS MINERALS INTERNATIONAL, INC. (f/k/a SALT HOLDINGS CORPORATION) (“Holdings”), COMPASS
MINERALS GROUP, INC. (the “US Borrower”), SIFTO
CANADA CORP. (the “Canadian Borrower”),
SALT UNION LIMITED (the “UK Borrower” and,
together with the US Borrower and the Canadian Borrower, the “Borrowers”), the
INCREMENTAL LENDERS (as defined below) and JPMORGAN CHASE BANK, N.A., as
Administrative Agent (in such capacity, the “Administrative
Agent”) under the Credit Agreement referred to below, to the CREDIT
AGREEMENT dated as of November 28, 2001, as Amended and Restated as of
April 10, 2002, as further Amended and Restated as of December 22,
2005, among Holdings, the Borrowers, the Lenders party thereto, the
Administrative Agent and the other agents, arrangers and bookrunners party
thereto, as in effect immediately prior to this Amendment (the “Credit
Agreement”).
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. Pursuant
to Section 2.23 of the Credit Agreement, the US Borrower has requested that the
Incremental Lenders provide Incremental Term Loans (such term and each other
capitalized term used but not defined herein having the meaning assigned to such
term in the Credit Agreement (as amended hereby)) to the US Borrower under the
Credit Agreement in an aggregate principal amount equal to
$127,000,000.
C. The
Incremental Lenders are willing to provide such Incremental Term Loans to the US
Borrower pursuant to the terms and subject to the conditions set forth
herein.
D. With
respect to such Incremental Term Loans, X.X. Xxxxxx Securities Inc. will act as
sole lead arranger and sole bookrunner.
Accordingly,
in consideration of the mutual agreements herein contained and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, and subject to the conditions set forth herein, the parties hereto
hereby agree as follows:
SECTION
1. Defined
Terms. As used in this Amendment, the following terms have the
meanings specified below:
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“Amendment
Transactions” shall mean, collectively, (a) the execution and delivery of
this Amendment and the Reaffirmation Agreement (as defined in Section 10(o)
hereof) by each Person party hereto or thereto, (b) the consummation of the
Holdings Debt Tender Offer, (c) on or before October 31, 2007, the
application of any Unused Proceeds to repurchase, redeem or discharge any
Holdings 2012 Notes not tendered on terms reasonably satisfactory to the
Administrative Agent, (d) the satisfaction or, to the extent permitted by the
Credit Agreement, waiver of the conditions to the effectiveness hereof and
thereof and (e) the consummation of the transactions contemplated hereby and
thereby.
“Holdings Debt Tender
Offer” shall mean the offer to purchase and consent solicitation made by
Holdings on October 2, 2007 (as amended from time to time on terms reasonably
satisfactory to the Administrative Agent), with respect to all the outstanding
Holdings 2012 Notes, pursuant to which Holdings (a) will purchase all the
Holdings 2012 Notes validly tendered and not withdrawn pursuant to such offer to
purchase (the “Tendered Holdings 2012
Notes”) and (b) to the extent at least a majority of the aggregate
principal amount of the Holdings 2012 Notes are validly tendered and not
withdrawn, will enter into a supplemental indenture that amends the Holdings
2012 Notes Indenture to eliminate or modify (in a manner reasonably satisfactory
to the Administrative Agent) all the material covenants (including the so-called
restrictive covenants) contained therein, in each case in accordance with the
Holdings Debt Tender Offer Documents.
“Holdings Debt Tender Offer
Documents” shall mean Holdings’s Offer to Purchase and Consent
Solicitation Statement dated October 2, 2007, and all other documents
executed and delivered with respect to the Holdings Debt Tender
Offer.
“Incremental Effective
Date” shall mean the date on which all the conditions set forth or
referred to in Section 10 hereof shall have been satisfied (or, to the extent
permitted by the Credit Agreement, waived by each of the Incremental
Lenders).
“Incremental Lenders”
shall mean the Persons listed on Schedule 1 hereto
(other than any such Person that has ceased to be a party hereto pursuant to an
assignment in accordance with Section 10.04 of the Credit Agreement), as well as
any Person that becomes an “Incremental Lender” hereunder pursuant to Section
10.04 of the Credit Agreement.
“Relevant Transaction
Parties” shall mean, collectively, Holdings, each Borrower and each other
US Credit Party.
“Tranche B-2 Term
Commitment” shall mean, with respect to each Incremental Lender, the
commitment of such Incremental Lender to make a Tranche B-2 Term Loan
hereunder on the Incremental Effective Date, expressed as an amount representing
the maximum principal amount of the Tranche B-2 Term Loans to be made by such
Incremental Lender hereunder, as set forth on Schedule 1
hereto. The aggregate principal amount of the Tranche B-2 Term
Commitments of all Incremental Lenders as of the date of this Amendment is
$127,000,000.
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“Tranche B-2 Term
Loans” shall mean the loans made pursuant to Section 2 of this
Amendment.
“Unused Proceeds”
shall mean the proceeds of the Tranche B-2 Terms Loans that are not to be
utilized on the Incremental Effective Date in accordance with Section
13(a).
SECTION
2. Commitment. Pursuant
to the terms and subject to the conditions set forth herein, each Incremental
Lender agrees to make a Tranche B-2 Term Loan to the US Borrower on the
Incremental Effective Date in a principal amount not exceeding such Incremental
Lender’s Tranche B-2 Term Commitment. The funding of the
Tranche B-2 Term Loans on the Incremental Effective Date shall be
consummated at a closing to be held at the offices of Cravath, Swaine &
Xxxxx LLP, or at such other place as the US Borrower and the Administrative
Agent shall agree upon. Unless previously terminated, the
Tranche B-2 Term Commitments shall terminate at 5:00 p.m., New York
City time, on the Incremental Effective Date.
SECTION
3. Amendments to Section
1.01. (a) Section 1.01 of the Credit Agreement is
hereby amended by adding the following definitions in the appropriate
alphabetical order:
“Tranche B-2 Incremental
Amendment” shall mean the Incremental Term Loan Amendment dated as of
October 19, 2007, among Holdings, the Borrowers, the Additional Lenders
party thereto and the Administrative Agent.
“Tranche B-2 Maturity
Date” shall mean, with respect to the Tranche B-2 Term Loans, December
22, 2012, or, if such date is not a Business Day, the next succeeding Business
Day.
“Tranche B-2 Term
Loans” shall mean the loans made pursuant to the Tranche B-2 Incremental
Amendment.
(b) The
definition of the term “Applicable Rate” in
Section 1.01 of the Credit Agreement is hereby amended by deleting the last
sentence in the second paragraph of such definition in its entirety and
inserting the following text in lieu thereof:
“Notwithstanding
anything to the contrary contained in this definition, (a) the Applicable Rates
shall be the Highest Applicable Rates at all times during which there shall
exist any Event of Default, (b) prior to the date of delivery of the financial
statements pursuant to Section 6.01(b) for the fiscal year ended December 31,
2005, in no event shall the Applicable Rates be less than those described in the
first sentence of this definition and (c) the Applicable Rates applicable to the
Tranche B-2 Term Loans
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maintained
as (i) Base Rate Loans shall be 1.00% and (ii) Eurodollar Loans shall be
2.00%.”
(c) The
definition of the term “Maturity Date” in
Section 1.01 of the Credit Agreement is hereby amended by adding the text “the
Tranche B-2 Maturity Date,” immediately after the text “the Term Loan Maturity
Date,” in such definition.
(d) The
definition of the term “Required Lenders” in
Section 1.01 of the Credit Agreement is hereby amended by inserting the text “,
Incremental Term Loans” immediately after the first reference to the text “Term
Loans” in the first sentence of such definition and by inserting the text “and
Incremental Term Loans” immediately after the second reference to the text “Term
Loans” in the first sentence of such definition.
(e) The
definition of the term “Term Loan Commitment”
in Section 1.01 of the Credit Agreement is hereby amended by deleting
clause (b) of the first sentence thereof and inserting the text
“(b) reduced, increased or incurred from time to time pursuant to
assignments by or to, or incremental commitments by, such Lender pursuant to
Section 2.23, Section 10.04 or Section 10.11(b)” in lieu thereof.
SECTION
4. Amendment to Section
2.01. Section 2.01 of the Credit Agreement is hereby amended
by inserting the text “or Tranche B-2 Term Loans” immediately after the text
“Term Loans” in the last full paragraph after paragraph (c) of such
Section.
SECTION
5. Amendment to Section
2.03. Section 2.03 of the Credit Agreement is hereby amended
by (i) deleting the first reference to the word “or” in the first sentence of
such Section and replacing it with the symbol “,”, (ii) inserting the text “or
Incremental Term Borrowing” immediately after the first reference to the text
“Term Borrowing” in the first sentence of such Section, (iii) inserting the text
“Borrowing of any Incremental Term Loan,” immediately after the text “Term
Borrowing,” in clause (ii) of the third sentence of such Section and (iv)
deleting the text “or Term Borrowing” in clause (A) of the fourth sentence of
such Section and inserting the text “, Term Borrowing or Incremental Term
Borrowing” in lieu thereof.
SECTION
6. Amendment to Section
2.10(a). Section 2.10(a) of the Credit Agreement is hereby
amended by inserting the text “and Tranche B-2 Term Loan” immediately after the
text “Term Loan” in clause (ii) of such Section.
SECTION
7. Amendment to Section
2.11(d). Section 2.11 of the Credit Agreement is hereby
amended by deleting paragraph (d) of such Section in its entirety and inserting
the following text in lieu thereof:
“except
for a prepayment pursuant to Section 2.20, each prepayment of B/A Drawings or
principal of Term Borrowings or Tranche B-2 Term Loan Borrowings pursuant to
this Section 2.11 shall be applied to the B/As included in such B/A Drawing, the
Term Loans included in such Term Borrowing or the Tranche B-2 Term Loans
included in such Tranche B-2 Term Loan Borrowing, as applicable, and to reduce
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the
remaining Scheduled Repayments of the Term Loans or Tranche B-2 Term Loans, as
applicable, at the US Borrower’s option, in direct order of maturity or on a pro
rata basis (in each case, based upon the then remaining principal amounts of
such Scheduled Repayments after giving effect to all prior reductions
thereto);”
SECTION
8. Amendment to Section
2.12(b).
(a) Section
2.12 of the Credit Agreement is hereby amended by deleting the first sentence of
paragraph (b) of such Section in its entirety and inserting the following text
in lieu thereof:
In
addition to any other mandatory repayments pursuant to this Section 2.12,
on each date set forth below, the US Borrower shall be required to repay (i)
that principal amount of Term Loans, to the extent then outstanding, as is set
forth opposite each such date under the heading “Term Loan Amount” and (ii) that
principal amount of Tranche B-2 Term Loans, to the extent then outstanding, as
is set forth opposite each such date under the heading “Tranche B-2 Term Loan
Amount” (each repayment set out in this paragraph (b), as the same may be
reduced as provided in Sections 2.11(d) and 2.12(f), a “Scheduled
Repayment”):
|
Scheduled Repayment Date
|
Term Loan Amount
|
Tranche
B-2 Term Loan
Amount
|
|
March
31, 2006
|
$875,000
|
--
|
|
June
30, 2006
|
$875,000
|
--
|
|
September
30, 2006
|
$875,000
|
--
|
|
December
31, 2006
|
$875,000
|
--
|
|
March
31, 2007
|
$875,000
|
--
|
|
June
30, 2007
|
$875,000
|
--
|
|
September
30, 2007
|
$875,000
|
--
|
|
December
31, 2007
|
$875,000
|
$317,500
|
|
March
31, 2008
|
$875,000
|
$317,500
|
|
June
30, 2008
|
$875,000
|
$317,500
|
|
September
30, 2008
|
$875,000
|
$317,500
|
|
December
31, 2008
|
$875,000
|
$317,500
|
|
March
31, 2009
|
$875,000
|
$317,500
|
|
June
30, 2009
|
$875,000
|
$317,500
|
|
September
30, 2009
|
$875,000
|
$317,500
|
|
December
31, 2009
|
$875,000
|
$317,500
|
|
March
31, 2010
|
$875,000
|
$317,500
|
|
June
30, 2010
|
$875,000
|
$317,500
|
|
September
30, 2010
|
$875,000
|
$317,500
|
|
December
31, 2010
|
$875,000
|
$317,500
|
|
March
31, 2011
|
$875,000
|
$317,500
|
|
June
30, 2011
|
$875,000
|
$317,500
|
|
September
30, 2011
|
$875,000
|
$317,500
|
|
December
31, 2011
|
$875,000
|
$317,500
|
|
March
31, 2012
|
$875,000
|
$317,500
|
|
June
30, 2012
|
$875,000
|
$317,500
|
|
September
31, 2012
|
$875,000
|
$317,500
|
|
Term
Loan and Tranche B-2 Maturity Date
|
$326,375,000
|
$120,650,000
|
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SECTION
9. Amendments to Section
2.12(f). Section 2.12(f) of the Credit Agreement is hereby
amended by (i) adding the text “and, except as otherwise provided in the
applicable Incremental Term Loan Amendment, Incremental Term Loans” immediately
after the reference to “Term Loans” in the first sentence of the first paragraph
of such Section and (ii) deleting the second sentence of such paragraph and
inserting the following in lieu thereof:
“All
repayments of outstanding Term Loans or Incremental Term Loans of any Tranche
pursuant to Section 2.12(c), (d) and (e) shall be applied to reduce the
then remaining Scheduled Repayments of the Term Loans or Incremental Term Loans
of such Tranche on a pro rata basis (based on the then remaining Scheduled
Repayments for such Tranche after giving effect to all prior reductions
thereto).”
SECTION
10. Conditions to
Funding. The obligations of the Incremental Lenders to make
the Tranche B-2 Term Loans hereunder shall not become effective until the date
on which each of the following conditions is satisfied (or, to the extent
permitted by the Credit Agreement, waived by each of the Incremental
Lenders):
(a) The
Administrative Agent (or, in the case of clause (ii) below, its counsel) shall
have received (i) from the US Borrower, at or prior to the time required by
Section 2.03 of the Credit Agreement, a Borrowing Request with respect to the
Borrowing of the Tranche B-2 Term Loans (A) that complies with the requirements
of Section 2.03 of the Credit Agreement and (B) pursuant to which the US
Borrower agrees that the provisions of Section 2.17 of the Credit Agreement
shall apply to any failure by the US Borrower to borrow the Tranche B-2 Term
Loans on the Incremental Effective Date and (ii) from each party hereto, either
(A) a counterpart of this Amendment signed on behalf of such party or (B)
written evidence satisfactory to the Administrative Agent (which may include
telecopy or electronic (including Adobe pdf copy) transmission of a signed
signature page of this Amendment) that such party has signed a counterpart of
this Amendment.
(b) On the
Incremental Effective Date, the Administrative Agent shall have received a
certificate from Holdings and the US Borrower dated such date signed by an
appropriate officer stating that all of the applicable conditions set forth in
paragraphs (f) through (i), inclusive, of this Amendment (other than such
conditions to the extent that same are subject to the satisfaction of the
Administrative Agent), have been satisfied on such date.
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(c) The
Administrative Agent shall have received opinions (addressed to the
Administrative Agent and the Incremental Lenders and dated as of the Incremental
Effective Date), from (i) Xxxxx Xxxx LLP, special counsel to Holdings, the US
Borrower and each other US Credit Party, substantially in the form contained in
Exhibit A-1 and containing such other matters incident to the transactions
contemplated herein as the Administrative Agent may reasonably request, (ii)
XxXxxxx Xxxxxx, special Canadian counsel to the Canadian Borrower, which opinion
shall cover the matters contained in Exhibit A-2 and such other matters incident
to the transactions contemplated herein as the Administrative Agent may
reasonably request and (iii) DLA Piper UK LLP, special English counsel to the UK
Borrower, which opinion shall cover the matters contained in Exhibit A-3 and
such other matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request. The US Borrower hereby
requests such counsel to deliver such opinions.
(d) On the
Incremental Effective Date, the Administrative Agent shall have received from
each Relevant Transaction Party a certificate, dated the Incremental Effective
Date, signed by the chairman of the board, the chief executive officer, the
president or any vice president of such Relevant Transaction Party (or, in the
case of any Foreign Credit Party, an authorized signatory thereof as permitted
under applicable law and the relevant charter documents of such Foreign Credit
Party), and attested to by the secretary or any assistant secretary of such
Relevant Transaction Party (or, in the case of any Foreign Credit Party, another
authorized signatory thereof as permitted under applicable law and the relevant
charter documents of such Foreign Credit Party), in the form of Exhibit B with
appropriate insertions, together with copies of the certificate or articles of
incorporation, certificate of formation, operating agreements and by-laws (or
equivalent organizational documents) of such Relevant Transaction Party and the
resolutions of such Relevant Transaction Party referred to in such certificate
and each of the foregoing shall be in form and substance reasonably satisfactory
to the Administrative Agent.
(e) On the
Incremental Effective Date, all Company and legal proceedings and all
instruments and agreements in connection with the transactions contemplated by
this Amendment shall be reasonably satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received all
information and copies of all certificates, documents and papers, including good
standing certificates, bring-down certificates and any other records of Company
proceedings and governmental approvals, if any, that the Administrative Agent
reasonably may have requested in connection therewith, such documents and
papers, where appropriate, to be certified by proper Company or governmental
authorities.
(f) On the
Incremental Effective Date, nothing shall have occurred that has had, or is
reasonably likely to have, a material adverse effect on the Amendment
Transactions or a Material Adverse Effect.
(g) On the
Incremental Effective Date, there shall be no actions, suits, proceedings or
investigations pending or threatened (a) with respect to this Amendment or any
other Credit Document or the Amendment Transactions or (b) that is reasonably
likely to have (i) a Material Adverse Effect or (ii) a material adverse effect
on the
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(h) On the
Incremental Effective Date, (a) all necessary and material governmental
(domestic and foreign), regulatory and third party approvals in connection with
the Amendment Transactions and otherwise referred to herein or therein shall
have been obtained and remain in full force and effect and, to the extent
reasonably requested by the Administrative Agent, evidence thereof shall have
been provided to the Administrative Agent and (b) all applicable appeal periods
and waiting periods shall have expired without any action being taken by any
competent authority that restrains (or that could have a reasonable likelihood
of restraining), prevents or imposes materially adverse conditions upon the
consummation of the Amendment Transactions, the making of the Tranche B-2 Term
Loans and the transactions contemplated herein. On the Incremental
Effective Date, there shall not exist any judgment, order, injunction or other
restraint issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting or imposing materially adverse
conditions upon, or materially delaying, or making economically unfeasible, the
consummation of the Amendment Transactions or the making of the Tranche B-2 Term
Loans.
(i) On the
Incremental Effective Date, Holdings will (a) pursuant to or in connection
with the Holdings Debt Tender Offer and in accordance with the Holdings Debt
Tender Offer Documents, purchase all the Holdings 2012 Notes validly tendered
and not withdrawn by the holders thereof and (b) to the extent at least a
majority of the aggregate principal amount of the Holdings 2012 Notes are
validly tendered and not withdrawn, amend the Holdings 2012 Notes Indenture
prior to giving effect to the consummation of the Holdings Debt Tender Offer to
eliminate or modify (in a manner reasonably satisfactory to the Administrative
Agent) all the material covenants (including the so-called restrictive
covenants) contained in the Holdings 2012 Notes Indenture.
(j) On or
before the Incremental Effective Date, the Administrative Agent shall have
received true and correct copies of all the Holdings Debt Tender Offer
Documents, certified as such by an appropriate officer of Holdings, with, in
each case, any changes thereto or waivers to the terms thereof to be reasonably
satisfactory to the Administrative Agent.
(k) On or
before the Incremental Effective Date, the Administrative Agent shall have
received evidence of insurance complying with the requirements of Section 6.03
of the Credit Agreement for the business and properties of the US Borrower and
its Subsidiaries, in form reasonably satisfactory to the Administrative Agent,
and naming the Collateral Agent as an additional insured and/or loss payee, and
stating that such insurance shall not be canceled without at least 30 days’
prior written notice by the insurer to the Collateral Agent.
(l) On the
Incremental Effective Date, all costs, fees and expenses, and all other
compensation due to the Administrative Agent or the Lenders and Incremental
Lenders (including legal fees and expenses), shall have been paid to the extent
due.
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(m) The
Administrative Agent shall have received (i) reasonably satisfactory evidence of
the continuing first-priority perfected Liens under the Security Documents (to
the extent intended thereunder) after giving effect to the Amendment
Transactions and (ii) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports (if any), listing all effective financing
statements that name any Credit Party as debtor and that are filed in the
jurisdictions reasonably specified by the Administrative Agent, together with
copies of all other financing statements that name any Credit Party as debtor
(none of which shall cover any Collateral except to the extent evidencing
Permitted Liens or in respect of which the Collateral Agent shall have received
termination statements (Form UCC-3 or the equivalent) as shall be required by
local or foreign law fully executed for filing).
(n) On the
Incremental Effective Date, (i) the Total Leverage Ratio on a Pro Forma Basis
(as provided in Section 2.23(a) of the Credit Agreement) after giving
effect to the incurrence of the Tranche B-2 Term Loans and the application of
the proceeds therefrom, as of the last day of the most recently ended four
fiscal quarters of the US Borrower, shall not exceed 4.25 to 1.00, (ii) the US
Borrower shall be in compliance, on a Pro Forma Basis (as provided in
Section 2.23(a) of the Credit Agreement) after giving effect to the
incurrence of the Tranche B-2 Term Loans and the application of the proceeds
therefrom, with Section 7.09 and Section 7.10 of the Credit Agreement computed
as if such Indebtedness had been outstanding during the most recently ended
period of four consecutive fiscal quarters of the US Borrower, (iii) the
incurrence of the Tranche B-2 Term Loans shall have been duly authorized by the
US Borrower, (iv) the representations made in Sections 12(c) and (d) shall be
true and correct and (v) the Administrative Agent shall have received a
certificate of a responsible officer of the US Borrower, dated as of the
Incremental Effective Date, confirming compliance with the conditions set forth
in clauses (i), (ii), (iii) and (iv) of this paragraph (n), together with all
relevant calculations related thereto.
(o) A
Reaffirmation Agreement substantially in the form of Exhibit C hereto (the
“Reaffirmation
Agreement”) shall have been executed and delivered by each party
thereto.
(p) On the
Incremental Effective Date, the Administrative Agent shall have received a
certificate of the chief financial officer of the US Borrower, either (i)
confirming that there have been no changes to the information provided pursuant
to Sections 6.01(j)(i) and 6.01(j)(ii) of the Credit Agreement since the most
recent delivery pursuant to Section 6.01(j) of the Credit Agreement or (ii)
setting out any such changes.
Notwithstanding
the foregoing, the obligations of the Incremental Lenders to make Tranche B-2
Term Loans shall not become effective unless each of the foregoing conditions is
satisfied at or prior to 5:00 p.m., New York City time, on October 31, 2007
(and, in the event such conditions are not so satisfied, this Amendment shall
terminate at such time).
SECTION
11. Repurchase, Redemption or
Discharge of Holdings 2012 Notes. Holdings (i) hereby
covenants and agrees to apply any Unused Proceeds to repurchase, redeem or
discharge any Holdings 2012 Notes not tendered pursuant to the
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SECTION
12. Representations and
Warranties. Holdings and the Borrowers represent and warrant
to the Administrative Agent and to each of the Incremental Lenders
that:
(a) This
Amendment has been duly authorized, executed and delivered by Holdings and each
Borrower and constitutes a legal, valid and binding obligation of such Person
enforceable in accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or
other similar laws affecting creditors’ rights generally, (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and (iii) implied covenants of good faith and
fair dealing.
(b) Neither
the performance by Holdings, the Borrowers or any other Credit Party of the
Amendment Transactions, nor compliance by any such Person with the terms and
provisions of the Reaffirmation Agreement or this Amendment, will (i) violate
(A) any provision of applicable law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents or
By-laws of such Person, (B) any applicable order of any court or any rule,
regulation or order of any Governmental Authority or (C) any provision of any
indenture, certificate of designation for preferred stock, agreement or other
instrument to which any of Holdings or any of its Subsidiaries is a party or by
which any such party or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, give rise to a right of or result in any
cancelation or acceleration of any right or obligation (including any payment)
or to a loss of a material benefit under any such indenture, certificate of
designation for preferred stock, agreement or other instrument or (iii) result
in the creation or imposition of any Lien upon or with respect to any property
or assets now owned or hereafter acquired by Holdings, the Borrowers or any of
their respective Subsidiaries, other than the Liens created by the Credit
Documents.
(c) The
representations and warranties set forth in Article V of the Credit Agreement
are true and correct in all material respects on and as of the Incremental
Effective Date with the same effect as though such representations and
warranties had been made on and as of such date (it being understood and agreed
that any representation or warranty that by its terms is made as of a specified
date shall be required to be true and correct in all material respects only as
of such specified date).
(d) Immediately
prior to and after giving effect to this Amendment and the borrowing of the
Tranche B-2 Term Loans, there shall exist no Default or Event of
Default.
SECTION
13. Use of Proceeds.
(a)The proceeds of the Tranche B-2 Term Loans shall be utilized by the US
Borrower solely to pay Dividends to Holdings (and, at
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(b) The US
Borrower hereby authorizes and directs the Administrative Agent to deposit any
Unused Proceeds into such escrow account to be identified by the Administrative
Agent and the US Borrower. Proceeds deposited into such escrow
account will be released at the request of the US Borrower solely for
application in accordance with paragraph (a) above. Any interest
earned or accrued on the Unused Proceeds in the escrow account shall be paid
directly to the US Borrower.
SECTION
14. Effectiveness;
Amendments. This Amendment shall become effective as of the
date first above written when the Administrative Agent shall have received
counterparts of this Amendment (including via telecopy or electronic (including
Adobe pdf copy) transmission of a signed signature page of this Amendment) that,
when taken together, bear the signatures of Holdings, the Borrowers, the
Administrative Agent and the Incremental Lenders. This Amendment may
not be amended nor may any provision hereof be waived except pursuant to a
writing signed by Holdings, the US Borrower, the Administrative Agent, each
Incremental Lender and any other party the consent of which would be required by
the Credit Agreement.
SECTION
15. Credit
Agreement. Except as expressly 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, the
Agents, the Issuing Bank, the Borrowers or any other Credit Party 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 the
Borrowers to any future consent to, or 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 this Amendment becomes
effective, any reference to the Credit Agreement shall mean the Credit Agreement
as modified hereby. This Amendment shall constitute an “Incremental
Term Loan Amendment”, each Tranche B-2 Term Loan shall constitute an
“Incremental Term Loan” and each Tranche B-2 Term Commitment shall constitute an
“Incremental Term Loan Commitment”, in each case for all purposes of the Credit
Agreement and the other Credit Documents.
SECTION
16. No
Novation. This Amendment shall not extinguish the Loans
outstanding under the Credit Agreement. Nothing herein contained
shall be construed as a substitution or novation of the Loans outstanding under
the Credit Agreement, which shall remain outstanding after the Incremental
Effective Date in accordance with their terms. Notwithstanding any
provision of this Amendment, the provisions of Sections 2.16, 2.17, 2.18
and 9.07 of the Credit Agreement as in effect immediately prior to the
Incremental Effective Date will continue to be effective as to all
Page
11
SECTION
17. APPLICABLE
LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION
18. Counterparts. This
Amendment may be executed in two or more counterparts, each of which shall
constitute an original but all of which, when taken together, shall constitute
but one contract. Delivery of an executed signature page to this
Amendment by facsimile or electronic transmission (including Adobe pdf copy)
shall be effective as delivery of a manually signed counterpart of this
Amendment.
SECTION
19. Expenses. The
US Borrower agrees to reimburse the Administrative Agent for its reasonable
out-of-pocket expenses in connection with this Amendment.
SECTION
20. 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.
SECTION
21. Construction. The
rules of construction specified in Section 1.03 of the Credit Agreement also
apply to this Amendment.
SECTION
22. Severability. Any
provision of this Amendment held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
[Signature
Pages Follow]
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
|
|
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Name:
|
|
|
Title:
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|
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COMPASS
MINERALS GROUP, INC.,
|
|
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by
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|
|
Name:
|
|
|
Title:
|
|
|
SIFTO
CANADA CORP.,
|
|
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by
|
|
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Name:
|
|
|
Title:
|
|
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SALT
UNION LIMITED ,
|
|
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by
|
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Name:
|
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Title:
|
|
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JPMORGAN
CHASE BANK, N.A., Individually and as Administrative
Agent,
|
|
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by
|
|
|
Name:
|
|
|
Title:
|
|
[Signature Page to Incremental
Amendment]
SIGNATURE
PAGE TO INCREMENTAL TERM LOAN AMENDMENT DATED AS OF
October 19,
2007, TO THE CREDIT AGREEMENT DATED AS OF NOVEMBER 28, 2001, AS
AMENDED AND RESTATED AS OF APRIL 10, 2002, AS FURTHER AMENDED AND RESTATED
AS OF DECEMBER 22, 2005, AMONG COMPASS MINERALS INTERNATIONAL, INC.,
COMPASS MINERALS GROUP, INC., SIFTO CANADA CORP., SALT UNION LIMITED, THE
LENDERS PARTY THERETO, JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT, AND
THE OTHER AGENTS AND PARTIES THERETO
Name of
Institution:
by_______________________________________
Name:
Title:
by_______________________________________
Name:
Title:
[Signature Page to Incremental
Amendment]
SCHEDULE
1
Incremental
Lenders
|
Name
|
Tranche B-2 Term
Commitment
|
|
JPMorgan
Chase Bank, N.A.
|
$15,000,000
|
|
The
Bank of Nova Scotia
|
$14,000,000
|
|
General
Electric Capital Corporation
|
$14,000,000
|
|
Calyon
New York Branch
|
$14,000,000
|
|
Bank
Midwest, N.A.
|
$12,000,000
|
|
Bank
of America, N.A.
|
$12,000,000
|
|
Xxxxx
Fargo Bank, N.A.
|
$10,000,000
|
|
AIB
Debt Management, Limited
|
$7,000,000
|
|
Valley
View State Bank
|
$5,000,000
|
|
Xxxxxxx
Sachs Bank USA
|
$5,000,000
|
|
Credit
Suisse, Cayman Islands Branch
|
$5,000,000
|
|
Fortis
Capital Corp.
|
$4,000,000
|
|
Xxxxxxx
Xxxxx Bank, FSB
|
$2,500,000
|
|
National
City Bank
|
$2,500,000
|
|
Commerce
Bank, N.A.
|
$2,500,000
|
|
Bank
of Tokyo-Mitsubishi UFJ Trust Company
|
$2,500,000
|
|
Total
|
$127,000,000
|
EXHIBIT
A-1
Form of Legal Opinion of
Xxxxx Xxxx LLP
EXHIBIT
A-2
Form of Legal Opinion of
XxXxxxx Xxxxxx
EXHIBIT
A-3
Form of Legal Opinion of DLA
Piper UK LLP
EXHIBIT
B
Certificates
EXHIBIT
C
Form of Reaffirmation
Agreement
