Exhibit 4.4
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
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
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
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 regist
