Contract
Exhibit
10.1
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:
“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
1
“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.
2
“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 maintained as (i) Base Rate Loans shall be 1.00% and
(ii)
Eurodollar Loans shall be 2.00%.”
3
(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
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
4
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
30, 2012
|
$875,000
|
$317,500
|
|
Term
Loan and Tranche B-2 Maturity Date
|
$326,375,000
|
$120,650,000
|
5
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.
(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
6
(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 Amendment Transactions, the rights or remedies of the Lenders or the
Administrative Agent hereunder or under the Credit Agreement or on the ability
of the US Borrower to
7
(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.
8
(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
9
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
10
(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
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]
12
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
|
|
|
/s/
Xxxxxx Xxxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxxxxx
|
|
|
Title: Vice
President and CFO
|
|
|
COMPASS
MINERALS GROUP, INC.,
|
|
|
By
|
|
|
/s/
Xxxxxx Xxxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxxxxx
|
|
|
Title: Vice
President and CFO
|
|
|
SIFTO
CANADA CORP.,
|
|
|
by
|
|
|
/s/
Xxxxxx Xxxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxxxxx
|
|
|
Title: Vice
President and CFO
|
|
|
SALT
UNION LIMITED ,
|
|
|
by
|
|
|
/s/
Xxxxx Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title: Director
|
|
|
JPMORGAN
CHASE BANK, N.A., Individually and as Administrative
Agent,
|
|
|
By
|
|
|
/s/
Xxxxxx Xxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx
|
|
|
Title: Executive
Director
|
|
13
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
|
JPMorgan
Chase Bank, N.A.
|
|
|
By
|
|
|
/s/
Xxxxxx Xxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx
|
|
|
Title: Executive
Director
|
|
|
The
Bank of Nova Scotia
|
|
|
By
|
|
|
/s/
X. X. Xxxx
|
|
|
Name:
X. X. Xxxx
|
|
|
Title: Managing
Director
|
|
|
/s/
Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title: Comptroller
|
|
|
General
Electric Capital Corporation
|
|
|
By
|
|
|
/s/
Xxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxx X. Xxxxx
|
|
|
Title: Duly
Authorized Signatory
|
|
|
Calyon
New York Branch:
|
|
|
By
|
|
|
/s/
Xxxxx Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title: Managing
Director
|
|
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxxx
|
|
|
Title: Director
|
|
|
Bank
Midwest. N.A.
|
|
|
By
|
|
|
/s/
Xxxx XxXxxxxxx
|
|
|
Name:
Xxxx XxXxxxxxx
|
|
|
Title: Vice
President
|
|
|
Bank
of America, N.A.:
|
|
|
By
|
|
|
/s/
Xxxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxxx
|
|
|
Title: Senior
Vice President
|
|
|
/s/
Xxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxx X. Xxxxx
|
|
|
Title: Assistant
Vice President
|
|
|
Xxxxx
Fargo Bank, N.A.
|
|
|
By
|
|
|
/s/
Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title: Vice
President
|
|
|
AIB
Debt Management, Limited
|
|
|
By
|
|
|
/s/
Xxxxxx X’Xxxxxxx
|
|
|
Name:
Xxxxxx X’Xxxxxxx
|
|
|
Title: Vice
President
|
|
|
Valley
View State Bank
|
|
|
By
|
|
|
/s/
Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title: President
|
|
|
Xxxxxxx
Sachs Bank U.S.A.
|
|
|
By
|
|
|
/s/
Xxxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxxx
|
|
|
Title: Vice
President
|
|
|
Credit
Suisse, Cayman Island Branch:
|
|
|
By
|
|
|
/s/
Xxxxxx Xxxx
|
|
|
Name:
Xxxxxx Xxxx
|
|
|
Title: Vice
President
|
|
|
/s/
Xxxxxxxxxx Xxxxx
|
|
|
Name:
Xxxxxxxxxx Xxxxx
|
|
|
Title: Associate
|
|
|
Fortis
Capital Corp.:
|
|
|
By
|
|
|
/s/
Xxxx X. Xxxxxxxx
|
|
|
Name:
Xxxx X. Xxxxxxxx
|
|
|
Title: Managing
Director
|
|
|
/s/
Xxxx Xxxxxxxx
|
|
|
Name:
Xxxx Xxxxxxxx
|
|
|
Title: Vice
President
|
|
|
Xxxxxxx
Xxxxx Bank, FSB
|
|
|
By
|
|
|
/s/
Xxxxxx X. Xxxxxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxxxxx
|
|
|
Title: Vice
President
|
|
|
National
City Bank
|
|
|
By
|
|
|
/s/
Xxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxxx
|
|
|
Title: Account
Officer
|
|
|
Commerce
Bank, N.A.
|
|
|
By
|
|
|
/s/
R. Xxxxx Xxxxx, Xx.
|
|
|
Name:
R. Xxxxx Xxxxx, Xx.
|
|
|
Title: Vice
President
|
|
|
Bank
of Tokyo-Mitsubishi UFJ Trust Company
|
|
|
By
|
|
|
/s/
Xxxx Xxxxxx
|
|
|
Name:
Xxxx Xxxxxx
|
|
|
Title: Vice
President
|
|
14
