Exhibit 10.2


 


INTREPID POTASH, INC.


 


FIFTH AMENDMENT TO


AMENDED AND RESTATED NOTE PURCHASE AGREEMENT


 


Senior Secured Notes, Series A, due April
16, 2020


Senior Secured Notes, Series B, due April
14, 2023


Senior Secured Notes, Series C, due April
16, 2025


 


Dated as of April 17, 2020


 


To the Holders of the Senior Notes


of Intrepid Potash, Inc.


Named in the Attached Schedule I


 


Ladies and Gentlemen:


 


Reference is made to
the Amended and Restated Note Purchase Agreement dated as of October 31, 2016 among Intrepid Potash, Inc. (the “Company”)
and the Existing Noteholders listed in Schedule A attached thereto, as amended by the First Amendment to Amended and Restated Note
Purchase Agreement dated as of November 9, 2016, the Second Amendment to Amended and Restated Note Purchase Agreement dated as
of November 21, 2016, the Third Amendment to Amended and Restated Note Purchase Agreement dated as of December 22, 2016 and the
Fourth Amendment to Amended and Restated Note Purchase Agreement dated as of June 30, 2017 (as so amended, the “Existing
Note Purchase Agreement”). You are referred to herein individually as a “Holder” and collectively
as the “Holders.” The Existing Note Purchase Agreement, as amended by this Fourth Amendment to Amended and Restated
Note Purchase Agreement (this “Amendment Agreement”) and as may be further amended, restated, supplemented or
otherwise modified from time to time, is referred to herein as the “Note Purchase Agreement”. Capitalized terms
used and not otherwise defined herein have the meanings ascribed to them in the Note Purchase Agreement.


 


The Company has requested
that the Holders agree to certain amendments to the Existing Note Purchase Agreement. The undersigned Holders have agreed to such
amendments on the terms and conditions set forth herein.


 


In consideration of the
premises and for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Company and the undersigned
Holders agree as follows:


 


1.                AMENDMENTS
TO EXISTING NOTE PURCHASE AGREEMENT


 


Effective as of the Amendment
Effective Date, the Existing Note Purchase Agreement is hereby amended as set forth on Schedule II attached hereto (such
amendments, collectively, the “Amendments”).


 






     


    


    

 


2.                REPRESENTATIONS
AND WARRANTIES


 


The Company hereby represents
and warrants to the Holders as follows:


 


2.1           
No Default or Event of Default. No event has occurred and no condition exists that, as of the date hereof or as of
the Amendment Effective Date, would constitute a Default or Event of Default.


 


2.2          
Authorization, etc. The execution, delivery and performance by the Company of this Amendment Agreement has been duly
authorized by all necessary corporate action and does not require any registration with, consent or approval of, notice to or action
by, any Person (including any Governmental Authority) in order to be effective and enforceable. The Note Purchase Agreement, this
Amendment Agreement and the Notes each constitute the legal, valid, and binding obligations of the Company, enforceable in accordance
with their respective terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and
(b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).


 


2.3          
Compliance with Laws, Other Instruments, etc. The execution, delivery and performance by the Company of this Amendment
Agreement will not (a) contravene, result in any breach of, or constitute a default under, or result in the creation of any
Lien in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase
or credit agreement, corporate charter or by-laws, or any other Material agreement, lease, or instrument to which the Company or
any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected,
(b) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling
of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (c) violate any provision of
any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary.


 


2.4          
Disclosure. This Amendment Agreement and the documents, certificates or other writings delivered to the Holders by
or on behalf of the Company in connection herewith, taken as a whole, do not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which
they were made. There is no fact known to the Company that would reasonably be expected to have a Material Adverse Effect that
has not been set forth herein or in the other documents, certificates and other writings delivered to the Holders by or on behalf
of the Company.


 


2.5          
Revolving Credit Agreement Amendment. No fee or other consideration or remuneration has been paid or will be paid
to the Revolving Agent or any Revolving Lender as an inducement to enter into the Revolving Credit Agreement Amendment (as defined
below).


 






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3.                AMENDMENT
EFFECTIVE DATE


 


The Amendments shall
become effective as of the date on which each of the following conditions precedent has been satisfied in full (the “Amendment
Effective Date”):


 


3.1           
Execution and Delivery of Amendment Agreement. Holders constituting the Required Holders shall have executed and
delivered this Amendment Agreement and the Holders shall have received a counterpart of this Amendment Agreement duly executed
and delivered by the Company.


 


3.2          
Confirmation of Subsidiary Guaranty. The Holders shall have received a counterpart of the Consent and Reaffirmation
attached hereto as Annex A duly executed and delivered by each Subsidiary Guarantor.


 


3.3           
Representations and Warranties True. The representations and warranties set forth in Section 2 hereof shall
be true and correct on such date in all respects.


 


3.4           
Revolving Credit Agreement. Each of the Company (as defined in the Revolving Credit Agreement), the Revolving Agent
and the Revolving Lenders shall have duly executed and delivered a First Amendment to Credit Agreement (the “Revolving
Credit Agreement Amendment”), in form and substance satisfactory to the Required Holders, and the Holders shall have
received a fully executed copy thereof.


 


3.5           
Fees and Expenses. The Company shall have paid all reasonable fees, expenses and costs of the Holders’ special
counsel, Morgan, Lewis & Bockius LLP incurred in connection with the preparation, negotiation, execution and delivery of this
Amendment Agreement and the other documents related hereto to the extent invoiced at least one Business Day prior to the date hereof.


 


4.                MISCELLANEOUS


 


4.1           
Ratification. Subject to the Amendments, the Note Purchase Agreement, the Notes and each of the other agreements,
documents, and instruments executed and/or delivered in connection therewith shall remain in full force and effect and are hereby
ratified, approved and confirmed in all respects as of the date hereof.


 


4.2           
Reference to and Effect on the Note Purchase Agreement. On and after the Amendment Effective Date, each reference
in the Note Purchase Agreement and in other documents describing or referencing the Note Purchase Agreement to the “Agreement,”
 “Note Purchase Agreement,” “hereunder,” “hereof,” “herein,” or words of like import
referring to the Note Purchase Agreement shall mean and be a reference to the Note Purchase Agreement as amended hereby.


 


4.3           
Binding Effect. This Amendment Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.


 


4.4          
Governing Law. This Amendment Agreement shall be construed and enforced in accordance with, and the rights of the
parties hereto shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such state
that would permit the application of the laws of a jurisdiction other than such state.


 






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4.5           
Counterparts. This Amendment Agreement may be executed in any number of counterparts, each executed counterpart constituting
an original, but altogether only one instrument. Delivery of an executed signature page by facsimile or e-mail transmission shall
be effective as delivery of a manually signed counterpart of this Amendment Agreement.


 


4.6           
Release. In further consideration of the execution by the Holders of this Amendment Agreement, the Company, on behalf
of itself and each of its Subsidiaries and Affiliates, and all of the successors and assigns of each of the foregoing (collectively,
the “Releasors”), hereby completely, voluntarily, knowingly, and unconditionally releases and forever discharges
each of the Holders and each of their respective advisors, professionals and employees, each affiliate of the foregoing and all
of their respective successors and assigns (collectively, the “Releasees”), from any and all claims, actions,
suits, and other liabilities, including, without limitation, any so-called “lender liability” claims or defenses (collectively,
 “Claims”), whether arising at law or in equity, which any of the Releasors ever had, now has or hereinafter
can, shall or may have against any of the Releasees for, upon or by reason of any matter, cause or thing whatsoever from time to
time occurring on or prior to the date hereof, in any way concerning, relating to, or arising from (a) any of the Releasors, (b)
the Note Purchase Agreement, the Notes, the Subsidiary Guaranty or any of the other agreements, documents, or instruments executed
and delivered in connection therewith, or any of the obligations thereunder, (c) the financial condition, business operations,
business plans, prospects or creditworthiness of the Company, and/or (d) the negotiation, documentation and execution of this Amendment
Agreement and any documents relating hereto. The Company, on behalf of itself and the other Releasors, hereby acknowledges that
they collectively have been advised by legal counsel of the meaning and consequences of this release.


 


[Signature Pages Follow]


 






    4 


    


    

 


 


IN
WITNESS WHEREOF, the Company and the undersigned Holders have caused this Amendment Agreement
to be executed and delivered by their respective officer or officers thereunto duly authorized.


 





	 	INTREPID POTASH, INC.
	 	 	 
	 	 	 
	 	By:	/s/
    Matt Preston
	 	Name:
    	Matt
    Preston
	 	Title:	Vice
    President - Finance



 


[Signature
Page to Fifth Amendment to Note Purchase Agreement]


 






    	 		 



     


    

 


	TEACHERS
    INSURANCE AND ANNUITY ASSOCIATION	 
	OF AMERICA	 
	 	 
	By:	Nuveen
    Alternatives Advisors LLC, its investment manager	 
	 	 	 
	 	 	 
	By:	/s/ Ji Min Shin	 
	Name:	Ji Min Shin	 
	Title:	Senior Director	 



 


[Signature
Page to Fifth Amendment to Note Purchase Agreement]


 






    	 		 



     


    

 


	COMPEER
    FINANCIAL, PCA	 
	as successor
    to 1st Farm Credit Services, PCA	 
	 	 	 
	 	 	 
	By:	/s/ Daniel J. Best	 
	Name:	Daniel J. Best	 
	Title:	Director, Capital Markets	 



 


[Signature
Page to Fifth Amendment to Note Purchase Agreement]


 






    	 		 



     


    

 


	THE GUARDIAN LIFE INSURANCE COMPANY
    OF	 
	AMERICA	 
	 	 	 
	 	 	 
	By:	/s/ Gwendolyn S.
    Foster	 
	Name:	Gwendolyn S. Foster	 
	Title:	Managing Director	 



 


[Signature
Page to Fifth Amendment to Note Purchase Agreement]


 






    	 		 



     


    

 


	FARM
    CREDIT SERVICES OF AMERICA, PCA	 
	 	 	 
	 	 	 
	By:	/s/ Thomas L. Markowski	 
	Name:	Thomas L. Markowski	 
	Title:	Vice President	 







 


[Signature
Page to Fifth Amendment to Note Purchase Agreement]


 






    	 		 



     


    

 


ANNEX
A


 


CONSENT AND
REAFFIRMATION


 


Each
of the undersigned hereby acknowledges receipt of a copy of the foregoing Fifth Amendment to Amended and Restated Note Purchase
Agreement (the “Amendment Agreement”) dated as of April 17, 2020, among Intrepid Potash, Inc. (the “Company”)
and the Holders party to the Amended and Restated Note Purchase Agreement, dated as of October 31, 2016, as amended by the First
Amendment to Amended and Restated Note Purchase Agreement dated as of November 9, 2016, the Second Amendment to Amended and Restated
Note Purchase Agreement dated as of November 21, 2016, the Third Amendment to Amended and Restated Note Purchase Agreement dated
as of December 22, 2016 and the Fourth Amendment to Amended and Restated Note Purchase Agreement dated as of June 30, 2017 (as
amended thereby and by the Amendment Agreement and as further amended, supplemented or otherwise modified from time to time, the
 “Note Purchase Agreement”). Capitalized terms used in this Consent and Reaffirmation and not defined herein
shall have the meanings given to them in the Note Purchase Agreement. Without in any way establishing a course of dealing by the
Holders, each of the undersigned consents to the Amendment Agreement and reaffirms the terms and conditions of the Subsidiary
Guaranty executed by it in connection with the Note Purchase Agreement and acknowledges and agrees that such Subsidiary Guaranty
remains and shall remain in full force and effect and hereby reaffirms, ratifies and confirms (a) in all respects each and every
obligation and covenant made by it in such Subsidiary Guaranty and (b) that such Subsidiary Guaranty remains the legal, valid
and binding obligation of such Subsidiary Guarantor enforceable against such Subsidiary Guarantor in accordance with its terms.
All references to the Note Purchase Agreement contained in such Subsidiary Guaranty shall be a reference to the Note Purchase
Agreement as modified by the Amendment Agreement and as the same may from time to time hereafter be amended, restated, supplemented
or otherwise modified.


 


Dated: April
17, 2020


 


[Signature
Page Follows]


 






    	 		 



     


    

 



IN WITNESS WHEREOF, each
of the undersigned has caused this Consent and Reaffirmation to be executed by its officers thereunto duly authorized, as of the
date written immediately above.


 


 


	 	INTREPID POTASH – MOAB, LLC	 



 


	 	By:	Intrepid Potash, Inc., its Manager
	 	 	 
	 	By:	/s/ Matt Preston
	 	Name:	Matt Preston
	 	Title:	Vice President - Finance



 


 


	 	INTREPID POTASH – WENDOVER, LLC  	 




 


	 	By:	Intrepid Potash, Inc., its Manager
	 	 	 
	 	By: 	/s/ Matt Preston
	 	Name:	Matt Preston
	 	Title: 	Vice President - Finance



 


	 	INTREPID POTASH–NEW MEXICO, LLC	 



 


	 	By:	Intrepid Potash, Inc., its Manager
	 	 	 
	 	By:	/s/ Matt Preston
	 	Name:	Matt Preston
	 	Title:	Vice President - Finance



 


[Signature Page to Consent and Reaffirmation
(Amended and Restated Note Purchase Agreement)]




 






    


     


    

 


	 	203 E. FLORENCE, LLC	 



 


	 	By: 	Intrepid Potash, Inc., its Manager
	 	 	 
	 	By:	/s/ Matt Preston
	 	Name:	Matt Preston
	 	Title:	Vice President - Finance



 


 


	 	MOAB GAS PIPELINE, LLC



 


	 	By:	Intrepid Potash, Inc., its Manager
	 	 	 
	 	By:	/s/ Matt Preston
	 	Name:	Matt Preston
	 	Title:	Vice President - Finance



 


[Signature Page to Consent and Reaffirmation
(Amended and Restated Note Purchase Agreement)]


 



    


     


    

 





SCHEDULE II


 


Amendments
to Existing Note Purchase Agreement


 


	1.	Section 5.17(c) (Deposit Accounts and Securities Accounts) of the Existing Note Purchase Agreement
is hereby amended to insert the parenthetical “(other than the SBA PPP Account)” immediately after the phrase “of
the Loan Parties” appearing therein.



 


	2. 	Section 9.14 ([Reserved]) of the Existing Note Purchase Agreement is hereby amended and restated
to read in its entirety as follows:



 


“9.14.      SBA
PPP Loan.


 


(a)       The
Company shall, and shall cause each of its Subsidiaries to, (i) comply in all material respects with all applicable provisions
of the Paycheck Protection Program and (ii) use commercially reasonable efforts to conduct its business in a manner that maximizes
the amount of the SBA PPP Loan that is forgiven.


 


(b)       The
Company shall, and shall cause each of its Subsidiaries to, (i) maintain all records required to be submitted in connection with
the forgiveness of any SBA PPP Loan, (ii) promptly apply for forgiveness of such SBA PPP Loan in accordance with regulations implementing
Section 1106 of the CARES Act in all material respects and (iii) provide each holder of Notes with a copy of its application for
forgiveness and supporting documentation reasonably requested by the Required Holders in connection with the forgiveness of any
SBA PPP Loan.


 


(c)       The
Company shall, and shall cause each of its Subsidiaries to, maintain the proceeds of the SBA PPP Loan at the SBA PPP Account.”


 





	3.	Section 10.3 (Indebtedness) of the Existing Note Purchase Agreement is hereby amended by (i) deleting the word “and”
at the end of clause (o); (ii) replacing the period at the end of clause (p) with “; ”; and (iii) adding a new clauses
(q) and (r) as follows:



 


	 	“(q)	Permitted
SBA PPP Loan; and
	 	(r)	Indebtedness
constituting CARES Act Deferred Payments.”



 


	4.	Schedule B (Defined Terms) of the Existing Note Purchase Agreement is hereby amended as follows:



 


	 	a.	The following new definitions are hereby added to Schedule B in their proper alphabetical order to read as follows:
	 	 	 
	 	 	"CARES Act"
means the Coronavirus Aid, Relief, and Economic Security Act, or the CARES Act and applicable rules and regulations thereunder,
as amended from time to time.
	 	 	 
	 	 	“Cares Act Deferred
Payments” means all payroll taxes, other taxes or any other amounts, payment of which is,
in each case, deferred in accordance with the CARES Act.



 






    
Schedule II - 1



     


    

 


	 	 	“Paycheck Protection
Program” means the Paycheck Protection Program established under the CARES Act.
	 	 	 
	 	 	“Permitted SBA PPP Loan”
means any SBA PPP Loan incurred by the Company on or prior to April 30, 2020 so long as: (a) such SBA PPP Loan is unsecured, (b)
Company has delivered to each holder of the Notes a completed copy of the borrower application form submitted to the financial
institution from which such SBA PPP Loan is obtained, (c) at the time of incurrence thereof and after giving effect thereto, including
the use of proceeds thereof, the aggregate outstanding principal amount of all such Indebtedness does not exceed $10,000,000 and
(d) the terms of the loan documents governing such SBA PPP Loan do not result in an Event of Default under this Agreement.
	 	 	 
	 	 	"Small Business Act"
means the Small Business Act (15 U.S. Code Chapter 14A – Aid to Small Business).
	 	 	 
	 	 	“SBA” means
the U.S. Small Business Administration.
	 	 	 
	 	 	“SBA
PPP Account” means account #***** maintained with the Revolving Agent.
	 	 	 
	 	 	"SBA PPP Loan"
means a loan incurred by the Company under 15 U.S.C. 636(a)(36) (as added to the Small Business Act by Section 1102 of the CARES
Act).
	 	 	 
	 	b.	The definition of “Consolidated EBITDA” is amended by amending and restating clause (2) appearing therein to read
in its entirety as follows:
	 	 	 
	 	 	“(2)
all non-cash income or gains or any cancellation of indebtedness income arising in connection with the forgiveness of the SBA PPP
Loan,”
	 	 	 
	 	c.	The definition of “Excluded Escrow/Cash Collateral Account” is hereby amended and restated to read in its entirety
as follows:
	 	 	 



	 	“Excluded
Escrow/Cash Collateral Account” means:



 


	 	(a)          any Deposit Account containing only escrowed amounts or cash collateral, in each case in favor of or securing obligations owed to Governmental Authorities, provided that any Lien on such Deposit Account is permitted in accordance with Section 10.4,
	 	 	 
	 	(b)         the SBA PPP Account, or
	 	 	 
	 	(c)         that certain Deposit Account of the Company located at U.S. Bank National Association with account number ******, provided that such Deposit Account contains exclusively cash collateral, in an amount not to exceed $550,000 at any time, which secures a letter of credit in the face amount of $500,000 issued by U.S. Bank National Association to the landlord under a real estate lease of the Company.
	 	 	 







		d.	The definition of “Indebtedness” is amended
by (i) deleting the word “and” appearing after clause (x) appearing therein, (ii) replacing the period appearing at
the end of clause (xi) appearing therein with “, and” and (iii) inserting a new clause (xii) immediately after clause
(xi) appearing therein which clause (xii) shall read in its entirety as follows:



 


“(xii)
all CARES Act Deferred Payments of such Person which are due and payable.”


 


 



    
Schedule II - 2