EXHIBIT 10.5
EXECUTION COPY
================================================================================
US COLLATERAL AND GUARANTY AGREEMENT
dated as of November 28, 2001,
among
SALT HOLDINGS CORPORATION,
COMPASS MINERALS GROUP, INC.,
each other Subsidiary of
SALT HOLDINGS CORPORATION
listed on Schedule I hereto
and
JPMORGAN CHASE BANK,
as Collateral Agent
___________________________
================================================================================
Table of Contents
-----------------
Page
----
ARTICLE I
Definitions
-----------
SECTION 1.01. Credit Agreement ..................................... 1 SECTION 1.02. Other Defined Terms .................................. 2
ARTICLE II
Guaranty
--------
SECTION 2.01. Guaranty ............................................. 7 SECTION 2.02. Guaranty of Payment .................................. 7 SECTION 2.03. No Limitations, Etc. ................................. 8 SECTION 2.04. Reinstatement ........................................ 9 SECTION 2.05. Agreement To Pay; Subrogation ........................ 9 SECTION 2.06. Information .......................................... 9
ARTICLE III
Pledge of Securities
--------------------
SECTION 3.01. Pledge ............................................... 10 SECTION 3.02. Delivery of the Pledged Collateral ................... 11 SECTION 3.03. Representations, Warranties and Covenants ............ 11 SECTION 3.04. Certification of Limited Liability Company and Limited
Partnership Interests ................................ 13 SECTION 3.05. Registration in Nominee Name; Denominations .......... 13 SECTION 3.06. Voting Rights; Dividends and Interest, etc. .......... 13
ARTICLE IV
Security Interests in Personal Property
---------------------------------------
SECTION 4.01. Security Interest .................................... 16 SECTION 4.02. Representations and Warranties ....................... 17 SECTION 4.03. Covenants ............................................ 20 SECTION 4.04. Other Actions ........................................ 25 SECTION 4.05. Covenants regarding Patent, Trademark and Copyright
Collateral ........................................... 28 SECTION 4.06. Lockbox System ....................................... 30 SECTION 4.07. Collections .......................................... 32
-i-
Page
----
ARTICLE V
Remedies
--------
SECTION 5.01. Remedies upon Default.................................... 32 SECTION 5.02. Application of Proceeds.................................. 35 SECTION 5.03. Grant of License to Use Intellectual Property............ 36 SECTION 5.04. Securities Act, etc...................................... 36
ARTICLE VI
Indemnity, Subrogation and Subordination
----------------------------------------
SECTION 6.01. Indemnity and Subrogation................................ 37 SECTION 6.02. Contribution and Subrogation............................. 37 SECTION 6.03. Subordination............................................ 38
ARTICLE VII
Miscellaneous
-------------
SECTION 7.01. Notices.................................................. 38 SECTION 7.02. Security Interest Absolute............................... 38 SECTION 7.03. Survival of Agreement.................................... 39 SECTION 7.04. Binding Effect; Several Agreement........................ 39 SECTION 7.05. Successors and Assigns................................... 40 SECTION 7.06. Collateral Agent's Fees and Expenses; Indemnification ... 40 SECTION 7.07. Collateral Agent Appointed Attorney-in-Fact.............. 41 SECTION 7.08. GOVERNING LAW............................................ 42 SECTION 7.09. Waivers; Amendment....................................... 42 SECTION 7.10. WAIVER OF JURY TRIAL..................................... 43 SECTION 7.11. Severability............................................. 43 SECTION 7.12. Counterparts............................................. 44 SECTION 7.13. Headings................................................. 44 SECTION 7.14. Jurisdiction; Consent to Service of Process.............. 44 SECTION 7.15. Termination or Release................................... 45 SECTION 7.16. Additional Subsidiaries.................................. 46 SECTION 7.17. Right of Setoff.......................................... 46
-ii-
Exhibits - --------
Schedules - ---------
Schedule I Subsidiary Parties Schedule II Capital Stock; Debt Securities Schedule III U.S. Copyrights; Licenses; Patents; Trademark/Trade Names Schedule IV Excluded Assets Schedule V Excluded Letters of Credit
Annexes - -------
Annex I Supplement No. [ ] to the US Collateral and Guaranty Agreement Annex II Form of Perfection Certificate Annex III Form of Name Change Agreement Annex IV Lockbox Agreement
-iii-
US COLLATERAL AND GUARANTY AGREEMENT dated as of
November 28, 2001, among SALT HOLDINGS CORPORATION, a
Delaware corporation ("Holdings"), COMPASS MINERALS GROUP,
--------
INC., a Delaware corporation (the "US Borrower"), each other
-----------
Subsidiary of Holdings listed on Schedule I hereto (each
such Subsidiary individually a "Subsidiary Party") and
----------------
JPMORGAN CHASE BANK, a New York banking corporation
("Chase"), as collateral agent (in such capacity, the
-----
"Collateral Agent") for the Secured Parties (as defined
----------------
below).
Reference is made to the Credit Agreement dated as of November 28, 2001 (as amended, supplemented, waived or otherwise modified from time to time, the "Credit Agreement"), among Holdings, the US Borrower, Sifto Canada
---------------- Inc., a company incorporated under the laws of the province of Ontario, Canada (the "Canadian Borrower"), Salt Union Limited, a company incorporated under the
----------------- laws of England and Wales (the "UK Borrower" and, together with the Canadian
----------- Borrower, the "Foreign Borrowers"; the Foreign Borrowers together with the US
----------------- Borrower, the "Borrowers"), the lenders from time to time party thereto (the
--------- "Lenders"), Chase, as administrative agent for the Lenders (in such capacity, ------- the "Administrative Agent"), J.P. Morgan Bank Canada, as Canadian Agent, and
-------------------- Chase Manhattan International Limited, as UK Agent. The Lenders have agreed to extend credit to the Borrowers subject to the terms and conditions set forth in the Credit Agreement. The obligations of the Lenders to extend such credit are conditioned upon, among other things, the execution and delivery of this Agreement. Holdings and the Subsidiary Parties other than the Borrowers are affiliates of the Borrowers and each Borrower is an affiliate of each other Borrower. Holdings and the Subsidiary Parties other than the Borrowers will derive substantial benefits from the extensions of credit to the Borrowers and each of the Borrowers will derive substantial benefits from the extensions of credit to each of the other Borrowers, in each case pursuant to the Credit Agreement. Holdings and each of the Subsidiary Parties are willing to execute and deliver this Agreement in order to induce the Lenders to extend such credit. Accordingly, the parties hereto agree as follows:
2
ARTICLE I
Definitions
-----------
SECTION 1.01. Credit Agreement. (a) Capitalized terms used in
---------------- this Agreement and not otherwise defined herein have the meanings specified in the Credit Agreement. All terms defined in the New York UCC (as defined herein) and not defined in this Agreement have the meanings specified in the New York UCC.
(b) The rules of construction specified in Section 1.02 and Section 10.06 of the Credit Agreement also apply to this Agreement.
SECTION 1.02. Other Defined Terms. As used in this Agreement, the
------------------- following terms have the meanings specified below:
"Account Debtor" means any Person who is or who may become
-------------- obligated to any Grantor under, with respect to or on account of an Account.
"Assigned Contracts" has the meaning assigned to such term in the
------------------ US Collateral Assignment.
"Collateral" means Security Agreement Collateral and Pledged
---------- Collateral.
"Collateral Agent" has the meaning assigned to such term in the
---------------- preamble to this Agreement.
"Collection Deposit Account" means a lockbox account of a Grantor
-------------------------- maintained for the benefit of the Secured Parties with the Collateral Agent or with a Sub-Agent pursuant to a Lockbox Agreement.
"Concentration Account" means the cash collateral account
--------------------- established at the office of JPMorgan Chase Bank located at 270 Park Avenue, New York, NY 10017, in the name of the Collateral Agent, Account No. [ ].
"Copyright License" means any written agreement, now or hereafter
----------------- in effect, granting any right to any third party under any copyright now or hereafter owned by any Grantor or that such Grantor otherwise has the right to license, or granting any right to any Grantor under any copyright now or hereafter owned by any third party, and all rights of such Grantor under any such agreement.
3
"Copyrights" means all of the following: (a) all copyright rights in
---------- any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise, and (b) all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright Office, including those listed on Schedule III.
"Credit Agreement" has the meaning assigned to such term in the
---------------- preliminary statement of this Agreement.
"Credit Agreement Obligations" means any Obligations other than
---------------------------- obligations described in clauses (d) and (e) of the definition of the term "Obligations".
"Documents" means all instruments, files, records, ledger sheets and
--------- documents covering or relating to any of the Collateral.
"Equity Interests" means shares of capital stock, partnership, joint
---------------- venture, member or limited liability or unlimited liability company interests, beneficial interests in a trust or other equity ownership interests in a Person of whatever nature and rights, warrants or options to acquire any of the foregoing.
"Federal Securities Laws" has the meaning assigned to such term in
----------------------- Section 5.04.
"Foreign Obligations" has the meaning assigned to such term in the
------------------- Foreign Guaranty.
"General Fund Account" means the general fund account established at
-------------------- the office of JPMorgan Chase Bank located at 270 Park Avenue, New York, NY 10017, in the name of the US Borrower, Account No. [ ].
"General Intangibles" means all choses in action and causes of action
------------------- and all other intangible personal property of any Grantor of every kind and nature (other than Accounts), including corporate or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee, Interest Rate Protection Agreements, Other Hedging Agreements and other agreements), Intellectual Property, goodwill, registrations, franchises, tax refund claims and any letter of credit, guaranty, claim, security interest or
4
other security held by or granted to any Grantor to secure payment by an Account Debtor of any of the Accounts.
"Grantors" means Holdings, the US Borrower and the Subsidiary Parties.
--------
"Guarantors" means Holdings, the US Borrower and the Subsidiary
---------- Parties.
"Indemnitee" has the meaning assigned to such term in Section 7.06(b).
----------
"Instrument" has the meaning assigned to such term in Article 9 of the
---------- New York UCC.
"Intellectual Property" means all intellectual and similar property of
--------------------- any Grantor of every kind and nature, including inventions, designs, Patents, Copyrights, Licenses, Trademarks, trade secrets, confidential or proprietary technical and business information, know-how, show-how or other data or information, software and databases and all embodiments or fixations thereof and related documentation, registrations and franchises, and all additions, improvements and accessions to, and books and records describing or used in connection with, any of the foregoing.
"License" means any Patent License, Trademark License, Copyright
------- License or other license or sublicense to which any Grantor is a party, including those listed on Schedule III (other than those license agreements in existence on the date hereof and listed on Schedule IV).
"Lockbox Agreement" means a Lockbox Agreement substantially in the
----------------- form of Annex IV, or any other form approved by the Collateral Agent, among a Grantor, the Collateral Agent and a Sub-Agent.
"Lockbox System" has the meaning assigned to such term in Section
-------------- 4.06(a).
"New York UCC" means the Uniform Commercial Code as from time to time
------------ in effect in the State of New York.
"Obligations" means (a) the due and punctual payment by each Borrower
----------- of (i) all amounts due in respect of B/As and the principal of, premium (if any) and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans and B/As, when and as due,
5
whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by any Borrower under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral, and (iii) all other monetary obligations of any Borrower to any of the Secured Parties under the Credit Agreement and each of the other Credit Documents, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) the due and punctual performance of all other obligations of each Borrower under or pursuant to the Credit Agreement and each of the other Credit Documents, (c) the due and punctual payment and performance of all the obligations of each other Credit Party under or pursuant to this Agreement and each of the other Credit Documents, (d) the due and punctual payment and performance of all obligations of each Credit Party under each Interest Rate Protection Agreement and each Other Hedging Agreement that (i) is in effect on the Effective Date with a counterparty that is a Lender or an Affiliate of a Lender as of the Effective Date or (ii) is entered into after the Effective Date with any counterparty that is a Lender or an Affiliate of a Lender at the time such Interest Rate Protection Agreement or Other Hedging Agreement, as applicable, is entered into and (e) the due and punctual payment and performance of all monetary obligations and other liabilities of each Credit Party to the Administrative Agent or any of its Affiliates in respect of overdrafts and related liabilities and obligations arising from or in connection with treasury, depositary or cash management services or in connection with any automated clearinghouse transfer of funds.
"Patent License" means any written agreement, now or hereafter in
-------------- effect, granting to any third party any right to make, use or sell any invention on which a patent, now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, is in existence, or granting to any Grantor any right to make, use or sell any invention on which a patent, now or hereafter owned by any third party, is in existence, and all rights of any Grantor under any such agreement.
"Patents" means all of the following: (a) all letters patent of the
------- United States or the equivalent thereof in any other country, all registrations and
6
recordings thereof, and all applications for letters patent of the United States or the equivalent thereof in any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office or any similar offices in any other country, including those listed on Schedule III, and (b) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof, and the inventions disclosed or claimed therein, including the right to make, use and/or sell the inventions disclosed or claimed therein.
"Perfection Certificate" means a certificate substantially in the form
---------------------- of Annex II, completed and supplemented with the schedules and attachments contemplated thereby, and duly executed by the chief financial officer and the chief legal officer of the US Borrower.
"Pledged Collateral" has the meaning assigned to such term in Section
------------------ 3.01.
"Pledged Debt Securities" has the meaning assigned to such term in
----------------------- Section 3.01.
"Pledged Securities" means any promissory notes, stock certificates or
------------------ other securities now or hereafter included in the Pledged Collateral, including all certificates, instruments or other documents representing or evidencing any Pledged Collateral.
"Pledged Stock" has the meaning assigned to such term in Section 3.01.
-------------
"Pledgors" means Holdings, the US Borrower and the Subsidiary Parties.
--------
"Proceeds" has the meaning specified in Section 9-102 of the New York
-------- UCC.
"Secured Parties" means (a) the Lenders, (b) the Collateral Agent, (c)
--------------- the Administrative Agent (and any Affiliate of the Administrative Agent to which any obligations described in clause (e) of the definition of the term "Obligations" is owed), (d) the Canadian Agent, (e) the UK Agent, (f) the Letter of Credit Issuer, (g) each counterparty to any Interest Rate Protection Agreement or Other Hedging Agreement with a Credit Party that either (i) is in effect on the Effective Date if such counterparty is a Lender or an Affiliate of a Lender as of the Effective Date or (ii) is entered into after the Effective Date if such counterparty is a Lender or an Affiliate of a Lender at the time such Interest Rate Protection Agreement or Other
7
Hedging Agreement, as applicable, is entered into, (h) the beneficiaries of each indemnification obligation undertaken by any Credit Party under any Credit Document and (i) the successors and assigns of each of the foregoing.
"Security Agreement Collateral" has the meaning assigned to such term
----------------------------- in Section 4.01.
"Security Interest" has the meaning assigned to such term in Section
----------------- 4.01.
"Sub-Agent" means a financial institution that has delivered to the
--------- Collateral Agent an executed Lockbox Agreement.
"Subsidiary Parties" means (a) the Subsidiaries of Holdings identified
------------------ on Schedule I and (b) each other Subsidiary of Holdings that becomes a party to this Agreement as contemplated by Section 7.16.
"Trademark License" means any written agreement, now or hereafter in
----------------- effect, granting to any third party any right to use any trademark now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, or granting to any Grantor any right to use any trademark now or hereafter owned by any third party, and all rights of any Grantor under any such agreement.
"Trademarks" means all of the following: (a) all trademarks, service
---------- marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all extensions or renewals thereof, including those listed on Schedule III, (b) all goodwill associated therewith or symbolized thereby and (c) all other assets, rights and interests that uniquely reflect or embody such goodwill.
"US Collateral Assignment" shall have the meaning assigned to such
------------------------ term in the Credit Agreement.
8
ARTICLE II
Guaranty
--------
SECTION 2.01. Guaranty. Each Guarantor unconditionally guarantees,
-------- jointly with the other Guarantors and severally, as a primary obligor and not merely as a surety, the due and punctual payment and performance of the Obligations. Each of the Guarantors further agrees that the Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guaranty notwithstanding any extension or renewal of any Obligation. Each of the Guarantors waives presentment to, demand of payment from and protest to each of the Borrowers or any other Credit Party of any of the Obligations, and also waives notice of acceptance of its guaranty and notice of protest for nonpayment.
SECTION 2.02. Guaranty of Payment. Each of the Guarantors further
------------------- agrees that its guaranty hereunder constitutes a guaranty of payment when due and not of collection, and waives any right to require that any resort be had by the Collateral Agent or any other Secured Party to any security held for the payment of the Obligations or to any balance of any deposit account or credit on the books of the Collateral Agent or any other Secured Party in favor of any Borrower or any other Person.
SECTION 2.03. No Limitations, Etc. (a) Except for termination of a
------------------- Guarantor's obligations hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Collateral Agent or any other Secured Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Credit Document or otherwise; (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Credit Document or any other agreement, including with respect to any other Guarantor under this Agreement; (iii ...
*End of Preview*
Click the 'Add to Cart' button to download the complete and formatted agreement.