FIRST SUPPLEMENTAL INDENTURE dated as of June 5, 2009 to INDENTURE dated as of May 22, 2003 among Compass Minerals International, Inc., as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee
Exhibit
4.4
dated as
of June 5, 2009
to
INDENTURE
dated as
of May 22, 2003
among
Compass
Minerals International, Inc.,
as
Issuer,
and
The Bank
of New York Mellon Trust Company, N.A.,
as
Trustee
THIS
FIRST SUPPLEMENTAL INDENTURE
to the Indenture (as defined below) (the “First Supplemental
Indenture”), dated as of June 5, 2009, is made by and between Compass
Minerals International, Inc., a Delaware corporation (the “Company”), and The Bank of
New York Mellon Trust Company, N.A., as successor trustee (the “Trustee”), and amends the
Indenture, dated as of May 22, 2003, among the Company and The Bank of New York,
as trustee (as amended from time to time, the “Indenture”).
RECITALS:
A. Pursuant
to the Indenture, the Company has issued its 12% Senior Subordinated Discount
Notes due 2013 (the “Notes”).
B. The
Company desires by this First Supplemental Indenture to amend certain provisions
of the Indenture.
C. Consents
to the amendments set forth in Article I herein have been received from the
Holders of more than a majority in principal amount of the outstanding
Notes.
D. This
First Supplemental Indenture has been duly authorized by all necessary corporate
action on the part of the Company.
E. The
Company has directed the Trustee to execute and deliver this First Supplemental
Indenture in accordance with Section 9.2 of the Indenture. The
amendments set forth herein may be implemented with the consent of Holders of
more than a majority in principal amount of the outstanding Notes and do not
trigger subsections (i) through (viii) of Section 9.2 of the
Indenture.
F. Capitalized
terms used herein without definition shall have the meanings assigned to them in
the Indenture.
G. The
recitals set forth above shall be deemed to be statements by the Company and not
statements by the Trustee.
NOW, THEREFORE, it is hereby
agreed as follows:
ARTICLE
I
AMENDMENTS
Section 1.01. Certain Defined
Terms. The following provisions set forth in Section 1.1
(Definitions) of the Indenture are hereby amended as follows:
(a) The
definition of each of “Acquired Indebtedness”, “Affiliate Transaction”, “Asset
Acquisition”, “Consolidated EBITDA”, “Consolidated Fixed Charge Coverage Ratio”,
“Consolidated Fixed Charges”, “Consolidated Interest Expense”, “Consolidated Net
Income”, “Consolidated Non-Cash Charges”, “Domestic Restricted Subsidiary”,
“Excluded Contribution”, “Existing Compass Minerals Indenture”, “Existing
Compass Minerals Notes”, “Independent
Financial
Advisor”, “Investment”, “Management Agreement”, “Merger Agreement”, “Net
Proceeds Offer”, “Net Proceeds Offer Amount”, “Net Proceeds Offer Payment Date”,
“Net Proceeds Offer Trigger Date”, “Permitted Business”, “Permitted
Indebtedness”, “Permitted Investments”, “Permitted Liens”, “Preferred Stock”,
“Purchase Money Indebtedness”, “Recapitalization”, “Reference Date”,
“Refinance”, “Refinancing Indebtedness”, “Replacement Assets”, “Restricted
Payment”, “Series A Preferred Stock”, “Transaction Date”, “Transactions” and
“Weighted Average Life to Maturity” is deleted in its entirety.
(b) Subsection
(9) of the definition of “Asset Sale” is deleted in its entirety and replaced
with the following:
“(9) {Reserved};
and”
(c) Subsection
(6) of the definition of “Guarantor Senior Debt” is deleted in its entirety and
replaced with the following:
“(6) {Reserved};”
(d) The
following language is hereby deleted from the definition of
“Indebtedness”:
“For purposes of Section 4.4, in
determining the principal amount of any Indebtedness to be incurred by the
Company or any Restricted Subsidiary or which is outstanding at any date, the
principal amount of any Indebtedness which provides that an amount less than the
principal amount thereof shall be due upon any declaration of acceleration
thereof shall be the accreted value thereof at the date of
determination.”
(e) Subsection
(6) of the definition of “Senior Debt” is deleted in its entirety and replaced
with the following:
“(6) {Reserved};”
(f) The
definition of “Unrestricted Subsidiary” is deleted in its entirety and replaced
with the following:
“Unrestricted Subsidiary” of
any Person means (1) any Subsidiary of such Person that is designated an
Unrestricted Subsidiary by the Board of Directors of such Person in the manner
provided below and (2) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, the Company or any other Subsidiary of the Company
that is not a Subsidiary of the Subsidiary to be so designated; provided that (x) the
Subsidiary to be so designated at the time of designation has total consolidated
assets of $1,000 or less and (y) each Subsidiary to be so designated and each of
its Subsidiaries has not at the time of designation, and does not thereafter,
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the lender
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has
recourse to any of the assets of the Company or any of its Restricted
Subsidiaries (other than the assets of such Unrestricted Subsidiary). The Board
of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if immediately before and immediately after giving
effect to such designation, no Default or Event of Default shall have occurred
and be continuing. Any such designation by the Board of Directors shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing
provisions.”
Section 1.02. The
fourth paragraph of Section 2.2 (Execution and Authentication) is hereby deleted
in its entirety and replaced with the following:
“The
Trustee shall authenticate (i) Initial Notes for original issue on the Issue
Date in the aggregate principal amount at maturity not to exceed $179,600,000,
(ii) pursuant to the Exchange Offer, Exchange Notes from time to time for issue
only in exchange for a like Accreted Value and principal amount at maturity of
Initial Notes and (iii) one or more series of Securities for original issue
after the Issue Date (such Securities to be substantially in the form of Exhibit A or Exhibit B, as the case may be)
in an unlimited amount (and if in the form of Exhibit A the same Accreted
Value and principal amount at maturity of Exchange Notes in exchange therefor
upon consummation of a registered exchange offer), in each case upon written
orders of the Issuer in the form of an Officers’ Certificate. In addition, each
such Officers’ Certificate shall specify the amount of Securities to be
authenticated, the date on which the Securities are to be authenticated, whether
the Securities are to be Initial Notes, Exchange Notes or Securities issued
under clause (iii) of the preceding sentence and the aggregate principal amount
at maturity of Securities outstanding on the date of authentication, and shall
further specify the amount at maturity of such Securities to be issued as a
Global Security or Physical Securities. Such Securities shall initially be in
the form of one or more Global Securities, which (i) shall represent, and shall
be denominated in an amount equal to the aggregate principal amount at maturity
of, the Securities to be issued, (ii) shall be registered in the name of the
Depository for such Global Security or Securities or its nominee and (iii) shall
be delivered by the Trustee to the Depository or pursuant to the Depository’s
instruction. All Securities issued under this Indenture shall vote and consent
together on all matters as one class and no series of Securities will have the
right to vote or consent as a separate class on any matter.”
Section
1.03. The third sentence of Section 2.3 (“Registrar and
Paying Agent”) is hereby deleted in its entirety and replaced with the
following:
“The
Issuer may act as its own Registrar or Paying Agent except that, for the
purposes of Articles Three and Eight and Section 4.16, neither the Issuer nor
any Affiliate of the Issuer shall act as Paying Agent.”
Section
1.04. Subsection (a) of Section 2.6 (“Transfer and
Exchange”) is hereby deleted in its entirety and replaced with the
following:
“(a) Subject
to the provisions of Sections 2.14 and 2.15, when Securities are presented to
the Registrar or a co-Registrar with a request to register the transfer of such
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Securities
or to exchange such Securities for an equal principal amount at maturity of
Securities of other authorized denominations, the Registrar or co-Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transaction are met; PROVIDED, HOWEVER, that the
Securities surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Issuer and the Registrar or co-Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Issuer shall execute and the Trustee shall
authenticate Securities at the Registrar’s or co-Registrar’s request. No service
charge shall be made for any registration of transfer or exchange, but the
Issuer may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchanges or
transfers pursuant to Section 2.2, 2.10, 3.6, 4.16 or 9.6). The Registrar or
co-Registrar shall not be required to register the transfer of or exchange of
any Security (i) during a period beginning at the opening of business 15 days
before the mailing of a notice of redemption of Securities and ending at the
close of business on the day of such mailing, (ii) selected for redemption in
whole or in part pursuant to Article Three, except the unredeemed portion of any
Security being redeemed in part, and (iii) during a Change of Control Offer if
such Security is tendered pursuant to such Change of Control Offer and not
withdrawn. A Global Security may be transferred, in whole but not in part, in
the manner provided in this Section 2.6(a), only to a nominee of the Depository
for such Global Security, or to the Depository, or a successor Depository for
such Global Security selected or approved by the Issuer, or to a nominee of such
successor Depository.”
Section
1.05. The second sentence of Section 3.1 (“Notices to
Trustee”) is hereby deleted in its entirety and replaced with the
following:
“The Issuer shall give notice of
redemption to the Paying Agent and Trustee not less than three days but not more
than 60 days before the Redemption Date (unless a shorter notice shall be agreed
to by the Trustee in writing), together with an Officer’s Certificate stating
that such redemption will comply with the conditions contained
herein.”
Section
1.06. The
first sentence of Section 3.3 (“Notice of Redemption”) is hereby deleted in its
entirety and replaced with the following:
“At least three days but not more than
60 days before a Redemption Date, the Issuer shall mail a notice of redemption
by first class mail, postage prepaid, to each Holder whose Securities are to be
redeemed at its registered address.”
Section
1.07. The
heading and text of each of Section 4.3 (Limitation on Restricted Payments),
Section 4.4 (Limitation on Incurrence of Additional Indebtedness), Section 4.6
(Payment of Taxes and Other Claims), Section 4.7 (Maintenance of Properties and
Insurance), Section 4.9 (Compliance With Laws), Section 4.10 (Reports To
Holders), Section 4.11 (Waiver of Stay, Extension or Usury Laws), Section 4.12
(Limitation on Transactions with Affiliates), Section 4.13 (Limitation on
Dividend and Other Payment Restrictions Affecting Subsidiaries), Section 4.14
(Limitation on Issuances of Guarantees by Restricted Subsidiaries), Section 4.15
(Limitation on Liens), Section 4.17 (Limitation on Asset Sales), clauses
(ii)-(iv) of Section 5.1(a)
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(Merger,
Consolidation and Sale of Assets), and clauses (iii)-(v) of Section 6.1 (Events
of Default) of the Indenture are deleted in their entirety and are each replaced
with the following:
“{Reserved}”.
Section
1.08. Subsection (b) of Section 4.8 (Compliance
Certificate; Notice of Default) is hereby deleted in its entirety and replaced
with the following:
“(b) {Reserved}”.
Section 1.09. The
first paragraph of Section 5.1(c) is hereby deleted in its entirety and replaced
with the following:
“Each Guarantor (other than any
Guarantor whose Guarantee is to be released in accordance with the terms of such
Guarantee and this Indenture) shall not, and the Company shall not cause or
permit any Guarantor to, consolidate with or merge with or into any Person other
than the Company or any other Guarantor unless:”
Section
1.10. Clause (ii) of Section 6.1 is hereby deleted in its
entirety and replaced with the following:
“(ii) the
failure to pay the principal on any Securities, when such principal becomes due
and payable, at maturity, upon redemption or otherwise (including the failure to
make a payment to purchase Securities tendered pursuant to a Change of Control
Offer) (whether or not such payment shall be prohibited by Article Ten or
Article Twelve);”
Section
1.11. Section 7.2(k) is hereby deleted in its entirety and
replaced with the following:
“(k)
Delivery of reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of the foregoing shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer’s
compliance with any of the covenants hereunder.”
Section
1.12. Section 7.5 (Notice of Default) is hereby deleted in its
entirety and replaced with the following:
“If a
Default or an Event of Default occurs and is continuing and the Trustee receives
actual notice of such Default or Event of Default, the Trustee shall mail to
each Securityholder notice of the uncured Default or Event of Default within 90
days after such Default or Event of Default occurs. Except in the
case of a Default or an Event of Default in payment of Accreted Value of,
premium, if any, or interest on, if any, any Security, including an accelerated
payment and the failure to make payment on the Change of Control Payment Date
pursuant to a Change of Control Offer, the Trustee may withhold the notice if
and so long as the Board of Directors, the executive committee or a trust
committee of directors and/or Responsible
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Officers
of the Trustee in good faith determines that withholding the notice is in the
interest of the Securityholders.”
Section 1.13. The
first sentence of subsection (c) of Section 8.2 (Legal Defeasance and Covenant
Defeasance) is hereby deleted in its entirety and replaced with the
following:
“Upon the
Issuer’s exercise under paragraph (a) hereof of the option applicable to this
paragraph (c), the Issuer shall, subject to the satisfaction of the conditions
set forth in Section 8.3, be released from its obligations, if any, under the
covenants contained in Section 4.16, Section 4.18 and Article Five with respect
to the outstanding Securities on and after the date the conditions set forth
below are satisfied (hereinafter, “Covenant Defeasance“), and the
Securities shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes).”
Section 1.14. The
following language
in Article Eleven (“Guarantee of Securities”) is hereby deleted in its entirety
wherever it appears:
“pursuant
to Section 4.14” and “under such Section 4.1.4”
Section 1.15. The
first sentence of Section 11.4(a) (“Release of a Guarantor”) is hereby deleted
in its entirety and replaced with the following:
“(a) If no Default or Event
of Default exists or would exist under this Indenture, upon the sale or
disposition of all of the Capital Stock of a Guarantor by the Company or any
Restricted Subsidiary of the Company, in a transaction or series of related
transactions, or upon the consolidation or merger of a Guarantor with or into
any Person in compliance with Article Five (in each case, other than to the
Company or an Affiliate of the Company), or if any Guarantor is dissolved or
liquidated in accordance with this Indenture, such Guarantor's Guarantee will be
automatically discharged and such Guarantor shall be released from all
obligations under this Article Eleven without any further action required on the
part of the Trustee or any Holder.”
Section
11.16. Section 13.5 (“Statements Required in Certificate or
Opinion”) is hereby deleted in its entirety and replaced with the
following:
“Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture, shall include:
(i)
a statement that the Person making such certificate or opinion has read such
covenant or condition;
(ii) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate
or opinion are based;
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(iii) a
statement that, in the opinion of such Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(iv) a
statement as to whether or not, in the opinion of each such Person, such
condition or covenant has been complied with; PROVIDED, HOWEVER, that with
respect to matters of fact an Opinion of Counsel may rely on an Officers’
Certificate or certificates of public officials.”
Section 1.17. Any
Notes issued under any provision of the Indenture subsequent to the date of this
First Supplemental Indenture shall bear a notation, in form acceptable to the
Trustee, referring to this First Supplemental Indenture, and shall vary from the
form attached to the Indenture as Exhibit A and Exhibit B as
follows:
(a)
Section 4 of the form of Note attached as Exhibit A and Exhibit B to the
Indenture shall be deleted in its entirety and replaced with the
following:
“4. Indenture.
The
Issuer issued the Securities under an Indenture dated as of May 22, 2003 (the
“Indenture”) by and between the Company and the Trustee. This
Security is one of a duly authorized issue of Securities of the
Issuer. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. (§)(§) 77aaa-77bbbb) (the “TIA”), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and the TIA for a statement of them. The
Securities are general obligations of the Issuer unlimited in amount, of which
an aggregate principal amount at maturity of $179,600,000 has been issued on the
Issue Date.”
(b) The
first sentence of Section 5 of the form of Note attached as Exhibit A and
Exhibit B to the Indenture shall be deleted in its entirety and replaced with
the following:
“The Issuer may redeem the Securities,
in whole at any time or in part from time to time, on and after June 1, 2008,
upon not less than three nor more than 60 days' notice, at the following
redemption prices (expressed as percentages of the principal amount at maturity
thereof) if redeemed during the twelve-month period commencing on June 1 of the
years set forth below, plus, in each case, accrued and unpaid interest thereon,
if any, to the date of redemption (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date):”
(c) The
first sentence of Section 6 of the form of Note attached as Exhibit A and
Exhibit B to the Indenture shall be deleted in its entirety and replaced with
the following:
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“Notice of redemption shall be mailed
by first-class mail at least three days but not more than 60 days before the
Redemption Date to each Holder of Securities to be redeemed at such Holder's
registered address.”
(d) The
text of each of Sections 8 and 16 of the form of Note attached as Exhibit A and
Exhibit B to the Indenture shall be deleted in its entirety and replaced with
the following:
“{Reserved}”.
(e) The
“Option of Holder to Elect Purchase” form attached to the form of Note attached
as Exhibit A and Exhibit B to the Indenture shall be amended to delete the
following:
“or
Section 4.17” and “Section 4.17”.
ARTICLE
II
MISCELLANEOUS
Section 2.01. Effectiveness. This
First Supplemental Indenture will become effective upon the execution and
delivery of the First Supplemental Indenture by the parties hereto provided that
the amendments to the Indenture set forth in Article I above shall not become
operative unless and until Notes are accepted for payment by the Company
pursuant to its Offer to Purchase and Consent Solicitation Statement dated May
21, 2009.
Section 2.02. Confirmation. Except
as expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect. Upon the execution and delivery of this First
Supplemental Indenture by the Company and the Trustee, this First Supplemental
Indenture shall form a part of the Indenture for all purposes, and every holder
of Securities heretofore or hereafter authenticated and delivered shall be bound
hereby. Any and all references to the Indenture, whether within the
Indenture or in any notice, certificate or other instrument or document, shall
be deemed to include a reference to this First Supplemental Indenture (whether
or not made), unless the context shall otherwise require.
Section 2.03. Counterparts. This
First Supplemental Indenture may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
instrument.
Section 2.04. Governing
Law. This First Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York, but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required
thereby.
Section 2.05. Trustee. The
Trustee makes no representations as to the validity or sufficiency of this First
Supplemental Indenture. The recitals and statements herein are deemed
to be those of the Issuer and Guarantors and not of the Trustee.
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IN WITNESS WHEREOF, the
parties hereto have caused this First Supplemental Indenture to be duly executed
as of the day and year written above.
COMPASS
MINERALS INTERNATIONAL, INC.
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By:
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/s/ Xxxxxx X. Xxxxxxxxx |
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Name: Xxxxxx
X. Xxxxxxxxx
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Title: Vice
President, Chief Financial Officer, Secretary and
Treasurer
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THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as
Trustee
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By:
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/s/ X.
Xxxxxx
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Name:
X. Xxxxxx
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Title:
Vice President
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