SECOND SUPPLEMENTAL INDENTURE dated as of October 19, 2007 to INDENTURE dated as of December 20, 2002 among Compass Minerals International, Inc., as Issuer, and The Bank of New York Trust Company, N.A., as Trustee
Exhibit
10.2
dated
as of October 19, 2007
to
INDENTURE
dated
as of December 20, 2002
among
Compass
Minerals International, Inc.,
as
Issuer,
and
The
Bank of New York Trust Company, N.A.,
as
Trustee
THIS
SECOND SUPPLEMENTAL INDENTURE to the Indenture (as defined
below) (the “Second Supplemental Indenture”), dated as of October 19,
2007, is made by and between Compass Minerals International, Inc., a Delaware
corporation (the “Company”), and The Bank of New York Trust Company,
N.A., as successor trustee (the “Trustee”), and amends the Indenture,
dated as of December 20, 2002, 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 ¾% Series B Senior Discount
Notes due 2012 (the “Notes”).
B. The
Company and the Trustee desire by this Second Supplemental Indenture to amend
certain provisions of the Indenture.
C. Consent
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
Second 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 Second Supplemental
Indenture in accordance with Section 9.2 of the Indenture. The
amendments set forth herein do not trigger subsections (i) through (vi) 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”, “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”, Purchase Money
Indebtedness”, “Recapitalization”, “Reference Date”, “Refinance”,
1
“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 the definition of “Asset Sale” is deleted in its entirety and
replaced with the following:
“(9) {Reserved};
and”
(c) 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.”
(d) 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 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 $123,500,000,
(ii) pursuant to the Exchange Offer, Exchange Notes from time to time for issue
only in
2
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
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 9.5). The Registrar or
co-Registrar shall not be required to register the transfer of or exchange
of
any
3
Section
1.05. 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) (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 replaced with the following:
“{Reserved}”.
Section
1.06. 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
1.07. 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
1.08. 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);”
Section
1.09. Section 7.2(k) is hereby deleted in its entirety and
replaced with the following:
4
“(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
1.10. 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 a trust committee of directors and/or Responsible Officers,
of
the Trustee in good faith determines that withholding the notice is in the
interest of the Securityholders.”
Section
1.10. 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 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
1.11. The following language in
Article Ten (Guarantee of Securities) is hereby deleted in its entirety wherever
it appears:
“pursuant
to Section 4.14”
Section
1.12. Section 11.5 (“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;
5
(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;
(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
1.13. Any Notes issued under any provision of the Indenture
subsequent to the date of this Second Supplemental Indenture shall bear a
notation, in form acceptable to the Trustee, referring to this Second
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 December 20, 2002
(as amended pursuant to the First Supplemental Indenture dated as of May 21,
2003 and the Second Supplemental Indenture dated as of October 19, 2007 by
and
between the Company and the Trustee, 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. (S)(S)
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
$123,500,000 has been issued on the Issue Date.”
(b) The
text of each of Sections 8 and 15 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}”.
(c) 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:
6
“or
Section 4.17” and “Section 4.17 ”.
ARTICLE
II
MISCELLANEOUS
Section
2.01. Effectiveness. This Second
Supplemental Indenture will become effective upon the execution and delivery
of
the Second 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
October 2, 2007.
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 Second Supplemental
Indenture by the Company and the Trustee, this Second 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 Second
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 Second
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 Second Supplemental
Indenture. The recitals and statements herein are deemed to be those
of the Issuer and Guarantors and not of the Trustee.
7
IN
WITNESS WHEREOF, the parties hereto caused this Second Supplemental
Indenture to be duly executed as of the date first written above.
Compass
Minerals International, Inc.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
Vice
President and CFO; Secretary
The
Bank of New York Trust Company, N.A., as Trustee
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Assistant
Vice President
Signature
Page – Second Supplemental Indenture
8