SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report Pursuant to
Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): April 26, 1994
MISSISSIPPI CHEMICAL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
MISSISSIPPI
(State or Other Jurisdiction of Incorporation)
2-7803 64-0292638
(Commission File Number) (I.R.S. Employer
Identification Number)
P.O. Box 388, Yazoo City, Mississippi 39194
(Address of Principal Executive Offices) (Zip Code)
(601) 746-4131
(Registrant's Telephone Number, Including Area Code)
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
EXHIBITS
Number Description of Exhibit
4.1 Thirteenth Supplemental Indenture dated as of
July 16, 1993, between the Registrant and
Deposit Guaranty National Bank.
4.2 Amendment Number 6392(C) dated October 22,
1993 to Loan Agreement Number 6392 dated as
of April 24, 1987, between the Registrant and
the Jackson Bank for Cooperatives (now the
National Bank for Cooperatives).
4.3 Amended and Restated Line of Credit Agreement
Number 6899(C) dated December 17, 1993,
between the Registrant's subsidiary Newsprint
South, Inc., and National Bank for
Cooperatives, for a revolving line of credit.
4.4 Amended and Restated Line of Credit Agreement
Number 6872(B) dated October 22, 1993,
between the Registrant and National Bank for
Cooperatives, for a revolving line of credit.
4.5 Amended and Restated Line of Credit Agreement
Number 6871(B) dated October 22, 1993,
between the Registrant and National Bank for
Cooperatives, for a revolving line of credit.
10 Amendment of Agreement for Real Estate
Purchase Option dated July 16, 1993 by and
between the Registrant and IMC-Agrico
Company, for the sale of the Registrant's
Hardee County, Florida property and
underlying phosphate reserves.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
MISSISSIPPI CHEMICAL CORPORATION
By: /s/CHARLES O. DUNN
Charles O. Dunn, President
Dated: April 26, 1994.
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EXHIBIT INDEX
Number Description of Exhibit Page Number
4.1 Thirteenth Supplemental Indenture
dated as of July 16, 1993, between
the Registrant and Deposit
Guaranty National Bank.
4.2 Amendment Number 6392(C) dated
October 22, 1993 to Loan
Agreement Number 6392 dated as
of April 24, 1987, between the
Registrant and the Jackson Bank
for Cooperatives (now the National
Bank for Cooperatives).
4.3 Amended and Restated Line of
Credit Agreement Number 6899(C)
dated December 17, 1993, between
the Registrant's subsidiary
Newsprint South, Inc., and National
Bank for Cooperatives, for a
revolving line of credit.
4.4 Amended and Restated Line of
Credit Agreement Number 6872(B)
dated October 22, 1993, between
the Registrant and National Bank
for Cooperatives, for a revolving
line of credit.
4.5 Amended and Restated Line of
Credit Agreement Number 6871(B)
dated October 22, 1993, between
the Registrant and National Bank
for Cooperatives, for a revolving
line of credit.
10 Amendment of Agreement for Real
Estate Purchase Option dated July
16, 1993 by and between the
Registrant and IMC-Agrico
Company, for the sale of the
Registrant's Hardee County, Florida
property and underlying phosphate
reserves.
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Exhibit 4.1
THIRTEENTH SUPPLEMENTAL INDENTURE
This Thirteenth Supplemental Indenture dated as of July 16,
1993, between Mississippi Chemical Corporation, a Mississippi
corporation (the "Company"), and Deposit Guaranty National Bank,
as Trustee (the "Trustee"), to the Indenture of Mortgage, Deed of
Trust, Assignment and Security Agreement dated as of September 1,
1976, among the Company, New Orleans Bank for Cooperatives (now
the National Bank for Cooperatives), John H. Farrelly, as trustee
for the benefit of the New Orleans Bank for Cooperatives (the
"Old Trustee") under certain deeds of trust specified in the
Original Indenture, and the Trustee (the "Original Indenture") as
amended and supplemented by a First Supplemental Indenture dated
as of September 7, 1976 (the "First Supplemental Indenture"), a
Second Supplemental Indenture dated as of September 30, 1976 (the
"Second Supplemental Indenture"), a Third Supplemental Indenture
dated as of June 28, 1977 (the "Third Supplemental Indenture"), a
Fourth Supplemental Indenture dated as of May 1, 1978 (the
"Fourth Supplemental Indenture"), a Fifth Supplemental Indenture
dated as of June 1, 1978 (the "Fifth Supplemental Indenture"), a
Sixth Supplemental Indenture dated as of September 1, 1979 (the
"Sixth Supplemental Indenture"), a Seventh Supplemental Indenture
dated as of October 1, 1979 (the "Seventh Supplemental
Indenture"), an Eighth Supplemental Indenture dated as of May 15,
1983 (the "Eighth Supplemental Indenture dated as of May 15, 1983
(the "Eighth Supplemental Indenture"), a Ninth Supplemental
Indenture dated as of February 23, 1988 (the "Ninth Supplemental
Indenture"), a Tenth Supplemental Indenture dated as of December
26, 1989 (the "Tenth Supplemental Indenture"), an Eleventh
Supplemental Indenture dated as of July 16, 1990 (the "Eleventh
Supplement Indenture"), and a Twelfth Supplemental Indenture
dated as of August 6, 1992 (the "Twelfth Supplemental Indenture")
(the Original Indenture as supplemented by the First through the
Twelfth Supplemental Indentures being hereinafter referred to as
the "Indenture");
WHEREAS, the Company wishes to convey certain assets which
are presently subject to the Lien of the Indenture (the "Potash
Assets") to a newly formed wholly owned subsidiary of the
Company, Mississippi Potash, Inc. ("Mississippi Potash") which
has been designated as a Restricted Subsidiary under the
Indenture (such conveyance is hereinafter referred to as the
"Transfer"); and
WHEREAS, until the same are released from the Lien of the
Indenture, the Potash Assets will remain subject to the Lien of
the Indenture and the Transfer will not, by itself, effect a
release of the Potash Assets from the Lien of the Indenture; and
WHEREAS, either (i) the Transfer has been approved by the
requisite number of holders of each Series of Notes having a
series vote, or (ii) provisions have been made under Section
10.02 of the Indenture for the defeasance of those Notes, the
holders of which have not approved the Transfer; and
WHEREAS, although the Indenture addresses the disposition of
proceeds of the sale or other conveyance of the Trust Estate when
title to the same is held by the Company, the Indenture does not
address such disposition in the case of any portion of the Trust
Estate held by a Restricted Subsidiary; and
WHEREAS, pursuant to the provisions of Section 10.02 of the
Indenture, the Company and the Trustee wish to enter into this
Thirteenth Supplemental Indenture for the purpose of establishing
the method by which a Restricted Subsidiary may dispose of a
portion of the Trust Estate and the use of the proceeds of the
disposition of the same; and
WHEREAS, pursuant to the Eleventh Supplemental Indenture,
the Company entered into an Agreement for Real Estate Purchase
Option (the "Option Agreement") with Freeport-McMoRan Resource
Partners, Limited Partnership ("Freeport"); and
WHEREAS, pursuant to the Option Agreement, Freeport is to
make a payment to the Company by July 16, 1993 and Freeport has
requested that the Company waive such requirement and, instead,
agree that such payment shall be due on or before December 31,
1993; and
WHEREAS, in order to effectuate such waiver, the Company
wishes to enter into an Amendment of Agreement for Real Estate
Purchase Option (the "Option Amendment") with Freeport in
substantially the form attached hereto as Exhibit A.
WHEREAS, this Thirteenth Supplemental Indenture is in
substantially the form approved by the holders of not less than
51% in aggregate unpaid principal amount of each Series of Notes
having a series vote and 51% in aggregate unpaid principal amount
of all of the outstanding notes.
NOW, THEREFORE, the Indenture is hereby amended and
supplemented as follows:
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ARTICLE I
TRUST ESTATE PROPERTY OF RESTRICTED SUBSIDIARIES
SECTION 1.01. Release of Portion of Trust Estate Owned by
Restricted Subsidiaries, Amendment of Section 5.04.
(a) In the event any property constituting a portion of
the Trust Estate is owned by a Restricted Subsidiary and such
property is not released from the Lien of the Indenture, such
property and the proceeds of any disposition thereof, may
subsequently be released from the Lien of the Indenture in the
same manner and to the same extent that such property would be
released from the Lien of the Indenture pursuant to the
provisions of Article IV of the Indenture, and for purposes of
such portion of the Trust Estate, the term "Company" as used or
referenced in Article IV shall be deemed to refer to the
Restricted Subsidiary which has an interest in such property.
The Restricted Subsidiary will have all rights provided to the
Company under Article IV with respect to the proceeds of sale or
other disposition of that portion of the Trust Estate owned by
the Restricted Subsidiary.
(b) To the extent the proceeds of such sale or other
disposition are used by the Restricted Subsidiary to acquire
other properties pursuant to the provisions of Article IV, the
Company will require the Restricted Subsidiary to take such
action satisfactory to the Trustee in order to subject such
properties to the Lien of the Indenture.
(c) To the extent the Trust Moneys deposited with the
Trustee against such Released Portion are not released to the
Restricted Subsidiary in accordance with the provisions of
Article IV, the amounts remaining on deposit with the Trustee
shall be applied to the redemption of Notes at the option of the
Noteholders as provided in Section 2.15 of the Indenture.
(d) Any rights in property constituting a portion of the
Trust Estate which are held by a Restricted Subsidiary may be
conveyed to the Company or to another Restricted Subsidiary
without the necessity of obtaining consents from the holders of
any Notes, provided however, that (i) no such conveyance shall
release such property from the Lien of the Indenture, (ii) the
Company will take such actions or will cause its Restricted
Subsidiaries to take such actions as will maintain the Lien of
the Indenture with respect to such portion of the Trust Estate,
and (iii) the Company will advise the Trustee of such conveyance
by the end of the calendar year during which such conveyance
occurred, provided that the failure to so advise the Trustee
shall not constitute an event of default hereunder.
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(e) Section 5.04 of the Indenture is hereby amended as
follows:
(1) The first line thereof shall henceforth read, "The
Company represents and warrants that either it or one or
more of its Restricted Subsidiaries is"
(2) The ninth, tenth and eleventh line thereof shall
henceforth read, "to the Company or its Restricted
Subsidiaries, as the case may be, and provided further that
as to the interests of the Company or its Restricted
Subsidiaries in oil and gas leases described in Annex B, the
Company warrants only the validity of the assignment of the
interest to the Company or its Restricted Subsidiaries, as
the case may be,"
ARTICLE II
AMENDMENT OF AGREEMENT FOR
REAL ESTATE PURCHASE OPTION
Section 2.01. Amendment of Eleventh Supplemental Indenture.
The Eleventh Supplemental Indenture is hereby amended by amending
the Freeport Agreement as follows:
(a) Paragraph 2, Option Money, of the Freeport Agreement is
amended by changing the fourth sentence thereof to read in its
entirety as follows:
Payments of Option Money relating to the second and
third years of the option period shall be due prior to
the end of the one (1) year period preceding the option
period to which they relate.
and by inserting immediately after the fourth sentence the
following new sentence:
The payment of Option Money relating to the fourth year
of the option period shall be due on or before
December 31, 1993.
Section 2.02. Option Amendment. The Company may enter into
the Option Amendment in the form attached hereto as Exhibit A,
and may from time to time enter into such other amendments which
do not, in the Company's reasonable business judgment, materially
and adversely affect the Trust Estate.
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ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.01 Indenture in Effect. Except as supplemented
and amended by this Thirteenth Supplemental Indenture, all the
covenants, agreements, terms and stipulations contained in the
Indenture, as heretofore in effect, shall continue in full force
and effect.
SECTION 3.02 Counterparts. This Thirteenth Supplemental
Indenture may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an
original and all such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Thirteenth
Supplemental Indenture to be duly executed on and as of the date
first above written.
ATTEST: MISSISSIPPI CHEMICAL CORPORATION
Signed and acknowledged
in the presence of:
By:________________________________
W. F. Hawkins
Senior Vice President-Finance
and Administration
__________________________
Rosalyn B. Glascoe
Secretary
[CORPORATE SEAL]
ATTEST: DEPOSIT GUARANTY NATIONAL BANK,
as Trustee
Signed and acknowledged
in the presence of:
By:________________________________
Name:
Title:
__________________________
Name:
Title:
[CORPORATE SEAL]
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STATE OF MISSISSIPPI
COUNTY OF YAZOO
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _______,
1993, within my jurisdiction, the within named W. F. Hawkins, and
Rosalyn B. Glascoe, to me known, who acknowledged that they are
the Senior Vice President-Finance and Administration and
Secretary, respectively, of Mississippi Chemical Corporation, a
Mississippi corporation, and that for and on behalf of said
corporation and as its act and deed they executed the above and
foregoing instrument, after first having been duly authorized by
said corporation so to do.
______________________________
My Commission expires:
______________________
(Notarial Seal)
STATE OF MISSISSIPPI
COUNTY OF HINDS
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _______,
1993, within my jurisdiction, the within named ________________
and __________________, who acknowledged that they are the
____________________ and ______________________ of Deposit
Guaranty National Bank, a national banking association, and that
for and on behalf of the said association, and as its act and
deed they executed and delivered the above and foregoing
instrument, after first been duly authorized by said association
so to do.
______________________________
My Commission expires:
______________________
(Notarial Seal)
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Exhibit 4.2
NATIONAL BANK FOR COOPERATIVES
AMENDMENT TO LOAN AGREEMENT
Number 6392(C)
October 22, 1993
MISSISSIPPI CHEMICAL CORPORATION
YAZOO CITY, MISSISSIPPI
$35,000,000.00 TERM LOAN AMENDED
Loan agreement number 6392 issued by the Jackson Bank
for Cooperatives, now National Bank for Cooperatives by reason of
merger effective January 1, 1989, in favor of the above named
Association on April 24, 1987, as amended, is hereby further
amended as follows:
1. The Other Borrowings section is revised in its
entirety to read as follows:
The Association agrees to limit at all times
during the term hereof, total short-term or seasonal
borrowings from all lenders, inclusive of the Bank, to
the Association and all Restricted Subsidiaries (as
defined in the Indenture), whether secured and/or
unsecured, to $60,000,000.00, exclusive of loans from
the Association to Restricted Subsidiaries. Whenever
there is a balance outstanding and owing hereunder, no
new long-term borrowings shall be consummated without
prior notification to the Bank, unless permitted by the
Twelfth Supplement to the Indenture.
2. Special Condition 1 is hereby revised in its
entirety to read as follows:
The Association agrees to maintain at all times a
ratio of unconsolidated current assets to
unconsolidated current liabilities (both as determined
in accordance with GAAP consistently applied) of not
less than 1.3 to 1; provided, however, in determining
unconsolidated current liabilities, only the amount
allowable as cash patronage rebates under the terms of
the Association's loans with the Bank shall be treated
as a current liability, or the actual amount to be paid
in cash if less than 60% of earnings.
3. Special Condition 2 is hereby deleted in its
entirety.
All other terms and conditions of the loan agreement,
as amended, not in conflict herewith shall remain in full force
and effect.
NATIONAL BANK FOR COOPERATIVES
By:___________________________
Vice President
Agreed to and accepted:
MISSISSIPPI CHEMICAL CORPORATION
By:___________________________
Date:_________________________
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Exhibit 4.3
NATIONAL BANK FOR COOPERATIVES
AMENDED AND RESTATED LINE OF CREDIT AGREEMENT
Number 6899(C)
December 17, 1993
NEWSPRINT SOUTH, INC.
YAZOO CITY, MISSISSIPPI
$10,992,000.00 SEASONAL LOAN (VARIABLE) AMENDED TO INCREASE THE
AMOUNT TO $11,344,000.00
THIS AMENDED AND RESTATED LINE OF CREDIT AGREEMENT
("Agreement") is entered into as of the 17th day of December,
1993, between the NATIONAL BANK FOR COOPERATIVES ("CoBank") and
NEWSPRINT SOUTH, INC. (the "Borrower").
WHEREAS, CoBank and the Borrower entered into Line of Credit
Agreement No. 6899; and
WHEREAS, CoBank and the Borrower now desire to amend and
restate Line of Credit Agreement No. 6899;
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree
as follows:
SECTION 1. The Line of Credit. On the terms and conditions
set forth in this Agreement, CoBank agrees to make available to
the Borrower during the period commencing on December 31, 1993,
and ending on but not including June 29, 1994, or such later date
as CoBank may in its sole discretion authorize in writing, a
revolving line of credit in an amount equal to the lesser of the
Borrowing Base (as defined in Section 6 hereof) or $11,344,000.00
(the "Line"). Within the limits of the Line, the Borrower may
borrow, repay, and reborrow.
SECTION 2. Purpose. The purpose of the Line is to finance
the operating needs and general purposes of the Borrower, and to
finance accounts receivable and inventory of the Borrower, and to
finance any investments in CoBank required pursuant to Section 9
hereof, and the Borrower agrees to utilize the proceeds of the
Line for such purposes.
SECTION 3. Availability. Advances under the Line will be
made available on any day on which CoBank is open for business
upon the telephonic or written request of any individuals
authorized by the Borrower. Requests for advances must be
received by CoBank no later than 12:00 noon, Central time on the
day the advance is desired. Unless otherwise agreed, all
advances will be made available by wire transfer of immediately
available funds. Wire transfers will be made to such account or
accounts as the Borrower may authorize from time to time on forms
supplied by CoBank. In making advances on telephonic request,
CoBank shall be entitled to rely on (and shall incur no liability
to the Borrower in acting upon) any request made by a person
identifying himself or herself as one of the persons authorized
by the Borrower to request advances hereunder.
SECTION 4. Interest.
(A) Variable Rate Option. Except as provided below, the
unpaid principal balance of each advance hereunder shall bear
interest at a rate per annum equal at all times to the National
Variable Rate (as hereinafter defined) plus fifty (50) basis
points. For purposes hereof, the National Variable Rate shall
mean the rate of interest established by CoBank from time to time
as its National Variable Rate. The National Variable Rate is
intended by CoBank to be a reference rate, and CoBank may charge
other borrowers rates at, above, or below that rate. Any change
in the National Variable Rate shall take effect on the date
established by CoBank as the effective date of such change, and
CoBank agrees to notify the Borrower promptly after any change in
the rate.
(B) Fixed Rate Option. From time to time at the request of
the Borrower, the rate of interest charged hereunder may be fixed
at a rate to be quoted by CoBank in its sole and absolute
discretion. The minimum amount that may be fixed at any one time
for any single period shall be $100,000, and rates may be fixed
for periods ranging from 5 to 365 days.However, rates may only be
fixed for periods which expire on a day on which CoBank is open
for business, and may not be fixed for periods expiring after the
Maturity Date (as defined in Section 5 hereof). Upon the
expiration of any fixed rate period, interest shall automatically
accrue at the rate set forth in (A) above, unless the amount
fixed is repaid or the Borrower fixes the rate for an additional
period.
(C) Payment and Calculation. Interest shall be payable
monthly in arrears by the 20th day of the following month, and
shall be calculated on the actual number of days each advance is
outstanding on the basis of a year consisting of 360 days. In
calculating interest, the date each advance is made shall be
included and the date each advance is repaid shall be excluded.
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(D) Default Rate. If prior to maturity the Borrower fails
to make any payment or investment required to be made under the
terms of this Agreement (including this Section), then at
CoBank's option in each instance, such payment or investment
shall bear interest from the date due to the date such amount is
paid in full at 4 percent per annum (calculated on a 360 day
basis) in excess of the rate set forth in Subsection (A) above.
After maturity, whether by reason of acceleration or otherwise,
the entire indebtedness hereunder shall automatically bear
interest at such higher rate. All interest provided for in this
Subsection shall be pay able on demand.
(E) Prepayment Surcharge. In the event any balance bearing
interest at a fixed rate is repaid on a day earlier than the last
day of any fixed rate period (whether as a result of a voluntary
prepayment or by reason of acceleration or otherwise), the
Borrower shall pay to CoBank a prepayment surcharge equal to the
present value of any actual funding losses incurred by CoBank as
a result of such prepayment, such surcharge to be computed in
accordance with methodology established by CoBank and
demonstrated to Borrower to be reasonably calculated to reflect
CoBank's actual funding losses.
SECTION 5. Repayment and Maturity. The unpaid principal
balance of the advances shall mature and be payable on June 29,
1994, or on such later date as CoBank may in its sole discretion
authorize in writing (the "Maturity Date").
SECTION 6. Borrowing Base, Reports, Etc.
(A) Borrowing Base. For purposes hereof, the term
"Borrowing Base" shall mean (a) eighty-five percent (85%) of
accounts receivable that have been outstanding for sixty (60)
days or less from the date of the original invoice and result
from the sale of newsprint, (b) seventy percent (70%) of the
market price less applicable discounts on manufactured and unsold
newsprint inventory, (c) fifty percent (50%) of the cost value of
consumable spare parts in inventory, and (d) seventy percent
(70%) of the market value less applicable discounts of Kraft pulp
inventory (other than in nodular form). The maximum amount
outstanding hereunder may not exceed the amount shown in Section
1 hereof, or the Borrowing Base herein provided, whichever is
less. "Consumable Spare Parts", as used in (c) above and herein,
and in all documents related hereto, means consumable spare
parts, prior to their incorporation into the Facility (as defined
for purposes of the Project Documents set forth below), which are
necessary for the normal operation and maintenance of the
Borrower's Facility including, but not limited to, gears,
switches, clutches, bolts, valves, filters, couplings, cylinders,
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nozzles, rheostats, fuses, seals, gauges, gaskets, timers,
relays, brake discs, starters, and paper machine clothing.
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(B) Reports.
(1) Weekly Reports. Weekly, within five (5) days of
each week-end, or more frequently as CoBank may request, the
Borrower will submit to CoBank a Borrowing Base Report in form
and content acceptable to CoBank.
(2) Requests for Advances. In addition to weekly
Borrowing Base Reports, the Borrower shall, prior to each request
for an advance hereunder, submit to CoBank a current Borrowing
Base Report in form and content acceptable to CoBank and
supporting the amount requested.
(C) Mandatory Repayment. If at any time the amount
outstanding under the Line exceeds the Borrowing Base, the
Borrower shall immediately notify CoBank and repay so much of the
Line as is necessary to reduce the amount outstanding under the
Line to the limits of the Borrowing Base, or shall restore the
required margin of security.
SECTION 7. Note. The Borrower's obligation to repay
advances made under the Line shall be evidenced by a promissory
note in form and content acceptable to CoBank (the "Note").
SECTION 8. Manner and Time of Payment. The Borrower shall
make each payment under this Agreement and the Note either by
wire transfer of immediately available funds or by check. Wire
transfers shall be made to the Federal Reserve Bank of Atlanta
for advice to and credit of NATL BK COOPS, Federal Reserve Bank
Account Number 0619-0193-1 (or to such other account as CoBank
may designate by notice). The Borrower shall give CoBank
telephonic notice no later than 12:00 noon Central time of its
intent to pay by wire transfer. Wire transfers received after
3:00 p.m. Central time shall be credited on the next business
day. Checks shall be mailed or delivered to CoBank at Drawer CS
198552, Atlanta, GA 30384-8552 (or to such other address as
CoBank may designate by notice). Credit for payment by check
will not be given until the next business day after receipt of
the check or the actual receipt of immediately available funds,
whichever is later.
SECTION 9. Capitalization. The Borrower agrees to make
such investments in CoBank as CoBank may from time to time
require in accordance with its bylaws and capital plan. In
connection with the foregoing, the Borrower hereby acknowledges
receipt, prior to the execution of this document, of a written
description of the terms and conditions under which equity is
issued. All such investments and all other equities which the
Borrower may now own or hereafter acquire or be allocated in
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CoBank shall be subject to a statutory first lien in favor of
CoBank to secure any indebtedness of the Borrower to CoBank.
SECTION 10. Security. In addition to the above, the
Borrower's obligations hereunder and under all instruments and
documents contemplated hereby shall be secured by a first
priority lien (subject only to those exceptions approved in
writing by CoBank) pursuant to the Security Agreement dated
February 14, 1989, granting CoBank a security interest in (A) all
inventories of (i) manufactured and unsold newsprint, and (ii)
Kraft pulp (other than in nodular form) and all products thereof,
and (iii) Consumable Spare Parts, whether now owned or hereafter
acquired, and (B) all now existing or hereafter arising accounts
receivable arising from sales of manufactured newsprint, and all
proceeds of (A) and (B) above ("Security Agreement").
SECTION 11. Conditions Precedent. CoBank's obligation to
make the initial advance hereunder is subject to the following
conditions precedent:
(A) Due execution. That CoBank receive duly executed
copies of this Agreement and all instruments and documents
contemplated hereby.
(B) Approvals. That CoBank receive evidence
satisfactory to it that all consents and approvals which are
necessary for, or required as a condition of, the validity and
enforceability of this Agreement and all documents and
instruments contemplated hereby, have been obtained and are in
full force and effect.
(C) Event of Default. That no Event of Default (as
defined in Section 15 hereof), or event which with the passage of
time or the giving of notice or both would become an Event of
Default hereunder, exists.
SECTION 12. Representations and Warranties. To induce
CoBank to extend credit hereunder, and recognizing that CoBank is
relying hereon, the Borrower represents and warrants as follows:
(A) Application. As of the date hereof, all
representations, warranties, and information set forth in, or
furnished in connection with, the Application submitted in
connection herewith are true and correct.
(B) Conflicting Agreements, Etc. Neither this
Agreement nor any instrument or document contemplated hereby
conflicts with any agreement to which the Borrower is a party or
with any provision of the Borrower's bylaws or articles of
incorporation.
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(C) Binding Agreement. This Agreement and all
instruments and documents contemplated hereby will, when
delivered, constitute legal, valid, and binding obligations of
the Borrower, enforceable in accordance with their terms.
(D) Defaults Under Other Agreements. The Borrower is
not in default under any agreement or instrument to which it is a
party or under which any of its properties are subject, that is
material to its financial condition, operations, properties,
profits, or business, including the following: (A) Second Amended
and Restated Project Loan Agreement dated as of December 1, 1988
("Project Loan Agreement"), (B) Second Amended and Restated Deed
of Trust, Security Agreement and Financing Statement dated as of
September 28, 1989 ("Project Mortgage"), (C) Consent to Project
Mortgage of Owner Participant dated as of September 28, 1989, (D)
Affiliate Transaction Letter dated as of December 1, 1988, (E)
Side Letter Scorecard dated as of December 1, 1988, (F)
Participation Agreement dated as of December 1, 1988
("Participation Agreement"), (G) Lease Agreement dated as of
September 28, 1989 ("Lease"), and (H) Lessee Security Agreement
dated as December 1, 1988 ("Lessee Security Agreement"), as any
and/or all of the foregoing may have been amended or restated to
date or may be amended or restated from time to time hereafter
((A) through (H), inclusive, and collectively, the "Project
Documents").
SECTION 13. Affirmative Covenants. Unless otherwise agreed
to in writing by CoBank, while this Agreement is in effect,
whether or not any indebtedness is outstanding hereunder, the
Borrower agrees to:
(A) Eligibility. Maintain its status as an entity
eligible to borrow from CoBank.
(B) Corporate Existence. Preserve and keep in full
force and effect its corporate existence and good standing in the
jurisdiction of its incorporation, its qualification to transact
business in all places required by law, and all licenses,
certificates, permits, authorizations, approvals, and the like
which are material to the conduct of its business or required by
law.
(C) Compliance with Laws. Comply in all material
respects with all applicable federal, state, and local laws,
rules, regulations, ordinances, codes, and orders material to the
conduct of the Borrower's business or the management of its
property (collectively "Laws"). Without limiting the foregoing,
the Borrower agrees to comply in all material respects with all
Laws relating to securities, and agrees to comply in all material
respects, and to cause all persons occupying or present on any
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properties of Borrower to so comply, with all Laws relating to
environmental protection. Notwithstanding the foregoing,
Borrower's failure to comply with this Subsection (C) will not
constitute a default under this Agreement unless such failure
adversely and materially affects Borrower's ability to comply
with its payment obligations under this Agreement.
(D) Insurance. Maintain insurance with reputable
insurers against all commonly insured risks of direct physical
loss or damage having such limits as required by the Project
Documents, and provide evidence to CoBank that all of the above
insurance is in force.
(E) Property Maintenance. Maintain all of its
property that is necessary to or desirable for the proper conduct
of its business in good working condition, ordinary wear and tear
excepted.
(F) Books and Records. Keep adequate records and
books of account in which complete entries will be made in
accordance with generally accepted accounting principles ("GAAP")
consistently applied.
(G) Inspection. Permit CoBank or its agents, during
normal business hours or at such other times as the parties may
agree, to examine the Borrower's properties, books, and records,
and to discuss the Borrower's affairs, finances, and accounts
with its respective officers, directors, employees, and
independent certified public accountants.
(H) Reports and Notices. Furnish to CoBank:
(1) Annual Financial Statement.
(a) Audit. As soon as available, but in no event later
than ninety (90) days after the end of any fiscal year of the
Borrower occurring during the term hereof, annual financial
statements of the Borrower prepared in accordance with GAAP
consistently applied. Such financial statements shall: (i) be
audited by independent certified public accountants selected by
the Borrower and reasonably acceptable to CoBank; (ii) be
accompanied by a report of such accountants containing an opinion
acceptable to CoBank; (iii) be prepared in reasonable detail and
in comparative form; and (iv) include a balance sheet, a
statement of income,a statement of retained earnings, a statement
of cash flows, and all notes and schedules relating thereto.
(b) Management Letters. Promptly upon receipt thereof,
a copy of any management letters submitted to the Borrower by its
independent certified public accountant.
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(2) Monthly Financial Statements. As soon as
available, monthly financial reports as provided in the Project
Documents.
(3) Notice of Default. Promptly after becoming aware
thereof, notice of the occurrence of an "Event of Default" (as
defined in Section 15 hereof) or of any event which, with the
giving of notice or the passage of time or both, would become an
Event of Default hereunder.
(4) Notice of Non-Environmental Litigation. Promptly
after the commencement thereof, notice of the commencement of all
actions, suits, or proceedings before any court, arbitrator, or
governmental department, commission, board, bureau, agency, or
instrumentality affecting the Borrower which, if determined
adversely to the Borrower, could have a material adverse effect
on the financial condition, properties, profits, or operations of
the Borrower.
(5) Notice of Environmental Litigation, Etc. Promptly
after receipt thereof, notice of the receipt of all pleadings,
orders, formal complaints, or indictments alleging a condition
that may require the Borrower to undertake or to contribute to a
cleanup or other response under environmental Laws, or which
seeks penalties, damages, injunctive relief, or criminal
sanctions related to alleged violations of such Laws, or which
claims personal injury or property damage to any person as a
result of environmental factors or conditions.
(6) Other Information. Such other information
regarding the condition or operations, financial or otherwise, of
the Borrower as CoBank may, from time to time, reasonably
request, including, but not limited to, copies of all pleadings
and notices referred to in Subsections H(4) and (5) above.
(7) Borrowing Base Report. The Borrowing Base Report
as set forth in Subsection 6(B)(1) hereof.
(8) Annual Budgets, Etc. As soon as available, and for
each fiscal year of the Borrower during the term hereof, copies
of the Borrower's annual budgets and forecasts of operations and
capital expenditures for its next fiscal year, as provided in the
Project Documents.
(I) Material Agreement. To perform and comply with
each of the provisions of the Project Documents applicable to
Borrower, which said provisions are hereby and herein
incorporated.
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(J) Rent Reserve. As provided in the Project
Documents, establish a Rent Reserve and adhere to all
restrictions in the Project Documents on cash distributions,
investments and other indebtedness.
(K) Collateral Agreement. Remain in compliance at all
times with all terms, conditions, covenants and provisions of the
Collateral Agreement dated as of February 14, 1989, between the
Borrower and CoBank ("Collateral Agreement").
SECTION 14. Negative Covenants. Unless otherwise agreed to
in writing by CoBank, while this Agreement is in effect, whether
or not any indebtedness is outstanding hereunder, the Borrower
will not:
(A) Borrowings. Create, incur, assume, or allow to
exist, directly or indirectly, any indebtedness or liability for
borrowed money or for the deferred purchase price of property or
services, except for accounts payable to trade creditors and
current operating liabilities (other than for borrowed money)
incurred in the ordinary course of the Borrower's business, and
except as permitted in accordance with the Project Documents.
(B) Liens. Create, incur, assume, or allow to exist
any mortgage, deed of trust, pledge, lien (including the lien of
an attachment, judgment, or execution), security interest, or
other encumbrance of any kind upon any of its property, real or
personal. The foregoing restrictions shall not apply to (1)
liens in favor of CoBank; (2) liens for taxes, assessments, or
governmental charges that are not past due; (3) liens, pledges
and deposits under workers' compensation, unemployment insurance,
and social security laws; (4) liens, deposits and pledges to
secure the performance of bids, tenders, contracts (other than
contracts for the payment of money), and like obligations arising
in the ordinary course of the Borrower's business as conducted on
the date hereof; (5) liens imposed by law in favor of mechanics,
materialmen, warehousemen, and like persons that secure
obligations that are not past due; and (6) liens of and/or
permitted under the Project Documents.
(C) Mergers, Acquisitions, Etc. Merge or consolidate
with any other entity, or acquire all or substantially all of the
assets of any person or entity, or form or create any new
subsidiary or affiliate, or commence operations under any other
name, organization, or entity, including any joint venture,
except as permitted in the Project Documents.
(D) Transfer of Assets. Sell, transfer, lease, or
otherwise dispose of any of its assets, except in the ordinary
course of the Borrower's business, and except assets which are
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obsolete or surplus to Borrower's operation or business, except
as permitted in the Project Documents.
(E) Loans. Lend or advance money, credit, or property
to any person or entity, except for trade credit extended in the
ordinary course of the Borrower's business, and except as
permitted in the Project Documents.
(F) Contingent Liabilities. Assume, guarantee, become
liable as a surety, endorse, contingently agree to purchase, or
otherwise become liable upon the obligation of any person or
entity, except by the endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of the Borrower's business, and except as permitted in the
Project Documents.
(G) Change in Business. Engage in any business
activities or operations substantially different from or
unrelated to the Borrower's present business activities or
operations, except as permitted in the Project Documents.
(H) Dividends and Retirement of Equities. Except as
permitted in the Project Documents, declare or pay any dividends,
or retire capital equities or other written notices of allocation
in cash, or make any other distribution or allocation of its
earnings, surplus, or assets to any holder of stock, allocated
equities or other written notices of allocation.
(I) Leases. Create, incur, assume, or permit to exist
any obligation as lessee for the rental or hire of any real or
personal property, except as permitted in the Project Documents.
(J) Investments. Pledge, sell, alienate, exchange, or
dispose of any stocks, bonds, or similar investments, except as
permitted in the Project Documents.
SECTION 15. Events of Default. Each of the following shall
constitute an "Event of Default" hereunder:
(A) Payment Default. Failure by the Borrower to make
any payment or investment required to be made hereunder when due.
(B) Representations and Warranties. Any material
representation or warranty made by the Borrower herein or in any
agreement, certificate or document related hereto or furnished in
connection herewith, shall prove to have been false or misleading
in any material respect on or as of the date made.
(C) Certain Affirmative Covenants. Failure by the
Borrower to perform or comply with any covenant set forth in
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Section 13 hereof (other than Section 13(H)(3), (4) and (5), or
to furnish any Borrowing Base Report required by Subsection 6(B)
hereof, and such failure continues for 15 days after written
notice thereof shall have been delivered by CoBank to the
Borrower.
(D) Other Covenants and Agreements. The Borrower
should fail to perform or comply with any other covenant or
agreement contained herein, including any covenant excluded under
Subsection (C) above, and such failure continues for 15 days
after written notice thereof shall have been delivered by CoBank
to the Borrower.
(E) Cross-Default. The Borrower should, after any
applicable grace period, breach or be in default under the terms
of any other agreement between the Borrower and CoBank,
including, without limitation, any loan agreement, security
agreement, mortgage, and deed of trust.
(F) Other Indebtedness. The Borrower should fail to
pay when due any indebtedness permitted hereunder to any other
person or entity for borrowed money or any other event occurs
which, under any agreement or instrument relating to such
indebtedness, has the effect of accelerating or permitting the
acceleration of such indebtedness, whether or not such
indebtedness is actually accelerated or the right to accelerate
is conditioned on the giving of notice, the passage of time or
otherwise, and such failure, whether or not the indebtedness is
accelerated, continues for 15 days after CoBank shall have
delivered to the Borrower written notice that CoBank will
consider such failure to constitute an Event of Default
hereunder.
(G) Judgments. A judgment, decree, or order for the
payment of money shall be rendered against the Borrower and
either (1) enforcement proceedings shall have been commenced; or
(2) such judgment, decree, or order shall continue unsatisfied
and in effect for a period of 60 consecutive days from the date
of its entry, without being vacated, discharged, satisfied, or
stayed pending appeal.
(H) Insolvency, Etc. The Borrower: (1) shall become
insolvent or shall generally not, or shall be unable to, or shall
admit in writing its inability to pay its debts as they come due;
or (2) shall suspend its business operations or a material part
thereof or make an assignment for the benefit of creditors, if,
in CoBank's reasonable opinion, such suspension or termination
will have a material adverse effect on the Borrower's overall
operations; or (3) shall apply for, consent to, or acquiesce in
the appointment of a trustee, receiver, or other custodian for it
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or any of its property or, in the absence of such application,
consent, or acquiescence, a trustee, receiver, or other custodian
is so appointed, and same is not terminated within sixty (60)
days of such appointment; or (4) shall commence or have commenced
against it any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution, or liquidation
law or statute of any jurisdiction, which proceeding is not
dismissed or otherwise withdrawn within sixty (60) days of the
commencement of same.
(I) Material Adverse Change. Any material adverse
change occurs, as reasonably determined by CoBank, in the
Borrower's financial condition, results of operation or ability
to perform its obligations hereunder or under any instrument or
document contemplated hereby.
(J) Project Documents. Any Material Potential
Default, Event of Default, or any exercise of remedies under the
Project Loan Agreement, and/or the Project Mortgage of the
Project Documents, and/or any Special Default, Event of Default,
or any exercise of remedies under the Lease or the Lessee
Security Agreement of the Project Documents.
SECTION 16. Suspension of Line During Grace Period. During
the continuance of any event which, with the passage of time or
the giving of notice or both would become an Event of Default
hereunder or under any other agreement between CoBank and the
Borrower, CoBank may, without notice to the Borrower, suspend the
unused portion of the Line.
SECTION 17. Remedies Upon Default. Upon the occurrence of
and during the continuance of each and every Event of Default:
(A) Termination, Etc. CoBank may, without notice to
the Borrower, suspend the unused portion of the Line and, upon
notice to the Borrower, may terminate the Line and declare the
entire unpaid principal balance of the Note, all accrued interest
thereon and all other amounts payable under this Agreement and
all other agreements between CoBank and the Borrower, to be
immediately due and payable. Upon such a declaration, the unpaid
principal balance of the Note and all such other amounts shall
become immediately due and payable, without protest, presentment,
demand, or further notice of any kind, all of which are hereby
expressly waived by the Borrower.
(B) Enforcement. CoBank may proceed to protect,
exercise, and enforce such rights and remedies as may be provided
by agreement or under law. Each and every one of such rights and
remedies shall be cumulative and may be exercised from time to
time, and no failure on the part of CoBank to exercise, and no
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delay in exercising, any right or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise of any
right or remedy preclude any other or future exercise thereof, or
the exercise of any other right. Without limiting the foregoing,
CoBank may hold and/or set off and apply against the Borrower's
indebtedness any and all collateral securing the Line as set
forth in Sections 9 and 10 hereof; provided, however,
notwithstanding the preceding, the Borrower's qualifying share of
voting stock in CoBank shall remain outstanding in the name of
the Borrower until such time as CoBank or any other member of the
Farm Credit System is no longer a party to the Participation
Agreement of the Project Documents or an Event of Default or the
exercise of remedies exists under any Financing Document, as
defined in the Project Documents. In addition,CoBank may hold
and/or set off and apply against the Borrower's indebtedness any
and all cash, accounts, securities, or other property in CoBank's
possession or under its control pursuant to this Agreement
(excluding the Project Documents as incorporated herein), the
Security Agreement, the Collateral Agreement, and/or financing
statements filed in connection with any of the preceding.
(C) Application of Funds. All amounts received by
CoBank shall be applied to amounts owing hereunder and under the
Note in such order and manner as CoBank may in its sole
discretion elect.
SECTION 18. Complete Agreement, Amendments. This Agreement
and all documents and instruments contemplated hereby are
intended by the parties to be a complete and final expression of
their agreement with respect to the subject matter thereof. No
amendment, modification, or waiver of any provision hereof or
thereof, nor any consent to any departure of the Borrower here
from or therefrom, shall be effective unless approved by CoBank
and contained in a writing signed by or on behalf of CoBank, and
then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 19. Applicable Law. Except to the extent governed
by applicable federal law, this Agreement and the Note shall be
governed by and construed in accordance with the laws of the
State of Mississippi, without reference to choice of law
doctrine.
SECTION 20. Notices. All notices hereunder shall be in
writing and shall be deemed to be duly given upon delivery, if
personally delivered, sent by telegram or facsimile transmission,
or if sent by express, certified or registered mail, to the
parties at the following addresses (or such other address for a
party as shall be specified by like notice):
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If to CoBank, as follows: If to the Borrower, as
follows:
National Bank for Cooperatives Newsprint South, Inc.
6360 I-55 North, Suite 410 P.O. Box 1499
P.O. Box 16099 Yazoo City, MS 39194-1499
Jackson, MS 39236-0099 Attn: Timothy A. Dawson
Attn: Credit Department Facsimile No. (601) 746-9158
Facsimile No. (601) 977-4045
SECTION 21. Costs and Expenses. To the extent allowed by
law, the Borrower agrees to pay to CoBank, on demand, all
out-of-pocket costs and expenses incurred by CoBank (including
the reasonable fees and expenses of counsel retained by CoBank)
in connection with the perfection, maintenance and release of any
security provided for hereunder and the preservation and
enforcement of CoBank's rights hereunder, under the Note, and any
security or other agreement related hereto.
SECTION 22. Effectiveness and Severability. This Agreement
shall continue in effect until all indebtedness and obligations
of the Borrower hereunder and under all instruments and documents
contemplated hereby shall have been repaid or the Line shall
expire, whichever is later. Any provision of this Agreement or
of any instrument or document contemplated hereby which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof or thereof.
SECTION 23. Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of the Borrower and
CoBank and the irrespective successors and assigns, except that
the Borrower may not assign or transfer its rights or obligations
hereunder without the prior written consent of CoBank.
* * * *
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SECTION 24. Acceptance. This Agreement shall not become
effective unless CoBank shall have received a duly executed copy
of this Agreement by December 30, 1993.
NATIONAL BANK FOR COOPERATIVES
By:/s/__________________________________
Vice President
ACCEPTED AND AGREED TO:
NEWSPRINT SOUTH, INC.
By:/s/Timothy A. Dawson
Title: Vice President-Finance and Treasurer
Date: December 20, 1993
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Exhibit 4.4
NATIONAL BANK FOR COOPERATIVES
AMENDED AND RESTATED LINE OF CREDIT AGREEMENT
Number 6872(B)
October 22, 1993
MISSISSIPPI CHEMICAL CORPORATION
YAZOO CITY, MISSISSIPPI
$15,000,000.00 SEASONAL LOAN (VARIABLE) AMENDED TO INCREASE THE
AMOUNT TO $20,000,000.00
THIS AMENDED AND RESTATED LINE OF CREDIT AGREEMENT
("Agreement") is entered into as of the 22nd day of October,
1993, between the NATIONAL BANK FOR COOPERATIVES ("CoBank") and
MISSISSIPPI CHEMICAL CORPORATION (the "Borrower").
WHEREAS, CoBank and the Borrower entered into Line of
Credit Agreement No. 6872; and
WHEREAS, CoBank and the Borrower now desire to amend
and restate Line of Credit Agreement No. 6872;
NOW, THEREFORE, for valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
agree as follows:
SECTION 1. The Line of Credit. On the terms and
conditions set forth in this Agreement, CoBank agrees to make
available to the Borrower during the period commencing on
November 1, 1993, and ending on but not including October 31,
1994, or such later date as CoBank may in its sole discretion
authorize in writing, a revolving line of credit in the amount of
$20,000,000.00 (the "Line"). Within the limits of the Line, the
Borrower may borrow, repay, and reborrow.
SECTION 2. Purpose. Advances under the Line shall be
utilized to finance the operating needs and general purposes of
the Borrower, and to finance accounts receivable and inventory,
and the Borrower agrees to utilize the proceeds of the Line for
such purposes.
SECTION 3. Availability. Advances under the Line will
be made available on any day on which CoBank is open for business
upon the telephonic or written request of any individuals
authorized by the Borrower. Requests for advances must be
received by CoBank no later than 12:00 noon, Central time on the
day the advance is desired. Unless otherwise agreed, all
advances will be made available by wire transfer of immediately
available funds. Wire transfers will be made to such account or
accounts as the Borrower may authorize from time to time on forms
supplied by CoBank. In making advances on telephonic request,
CoBank shall be entitled to rely on (and shall incur no liability
to the Borrower in acting upon) any request made by a person
identifying himself or herself as one of the persons authorized
by the Borrower to request advances hereunder.
SECTION 4. Interest.
(A) The Borrower agrees to pay interest on the unpaid
principal balance hereunder in accordance with one of the
following interest rate options, as selected by the Borrower:
(1) Variable Rate Option. At a rate per annum
equal at all times to the National Variable Rate (as
hereinafter defined) minus one hundred (100) basis
points. For purposes hereof, the National Variable
Rate shall mean the rate of interest established by
CoBank from time to time as its National Variable Rate.
The National Variable Rate is intended by CoBank to be
a reference rate, and CoBank may charge other borrowers
rates at, above, or below that rate. Any change in the
National Variable Rate shall take effect on the date
established by CoBank as the effective date of such
change, and CoBank agrees to notify the Borrower
promptly after any change in the rate.
(2) Quoted Rate Option. At a fixed rate to be
quoted by CoBank in its sole and absolute discretion.
Under this option, the minimum amount that may be fixed
at any one time for any single period shall be
$100,000, and rates may be fixed for periods ranging
from 5 to 365 days. However, rates may only be fixed
for periods which expire on a day on which CoBank is
open for business.
(3) LIBOR Option. At a fixed rate equal to LIBOR
(as hereinafter defined) plus 150 basis points per
annum for periods of 1 month, 2 months, 3 months, 6
months, or 9 months, as selected by the Borrower. For
purposes hereof, LIBOR shall mean the rate indicated by
Reuters (screen LIBO) as having been quoted by Bankers
Trust at 11:00 a.m. London time on the date the rate is
fixed for the offering of U.S. dollar deposits in the
London interbank market for the period designated by
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the Borrower. Notwithstanding such reference, for
purposes hereof, the term "month" or "months" shall
mean a period consisting of 30 days or integral
multiples thereof; provided, however, that in the event
any such period expires on a day on which CoBank is not
open for business, such period shall be extended to the
next day on which CoBank is open for business. Under
this option, the minimum amount that may be fixed at
any one time shall be $100,000.
(4) Discount Note Option. At a fixed rate equal
to the Discount Note Rate (as hereinafter defined) plus
175 basis points per annum for periods ranging from 5
to 365 days. Under this option, the minimum amount
that may be fixed at any one time for any single period
shall be $100,000. However, rates may only be fixed
for periods which expire on a day on which CoBank is
open for business. For purposes hereof, the term
Discount Note Rate shall mean the yield to maturity on
Federal Farm Credit Banks Consolidated Systemwide Notes
(Systemwide Notes) having the same maturity date as the
last day of the fixed rate period selected by the
Borrower, as quoted by CoBank at approximately 9:30
a.m. Eastern time on the date the rate is fixed. If,
however, no yield is available for the period selected,
then the rate shall be interpolated based on the rates
quoted by CoBank for the next longer and shorter
maturity dates for Systemwide Notes. In the event that
no issues of Systemwide Notes are available for such
interpolation or that the issuance of Systemwide Notes
ceases, then CoBank will notify the Borrower and either
(i) this interest rate option will cease to be
available, or (ii) the parties hereto may agree upon a
substitute basis for fixing rates based upon similar
issues of discount notes or other debt instruments.
The Borrower shall select the applicable rate option at the time
it requests an advance hereunder and may, on any CoBank business
day, elect to convert qualifying amounts bearing interest at the
variable rate option to one of the fixed rate options. In
addition, on the last day of any fixed rate period, the Borrower
may elect to fix the rate for an additional period or to convert
the rate to the variable rate option. In the absence of any such
election or in the absence of any election made at the time an
advance is made hereunder, interest shall automatically accrue at
the variable rate option. All elections provided for herein
shall be made in the same manner and by the same time as is
provided in Section 3 hereof for requests for advances, and in no
event may rates be fixed for periods expiring after the Maturity
Date (as defined in Section 5 hereof).
-3-
(B) Payment and Calculation. Interest shall be
payable monthly in arrears by the 20th day of the following
month, and shall be calculated on the actual number of days each
advance is outstanding on the basis of a year consisting of 360
days. In calculating interest, the date each advance is made
shall be included and the date each advance is repaid shall be
excluded.
(C) Default Rate. If prior to maturity the Borrower
fails to make any payment or investment required to be made under
the terms of this agreement (including this Section), then at
CoBank's option in each instance, such payment or investment
shall bear interest at 4 percent per annum in excess of the rate
set forth in Subsection (A) above. After maturity, whether by
reason of acceleration or otherwise, the unpaid principal balance
hereunder shall automatically bear interest at 4 percent per
annum in excess of the rates that would otherwise be in effect.
All interest provided for in this Subsection shall be payable on
demand and shall be calculated from the date such payment was due
to the date paid on the basis of a year consisting of 360 days.
(D) Prepayment Surcharge. In the event any balance
bearing interest at a fixed rate is repaid on a day earlier than
the last day of any fixed rate period (whether as a result of a
voluntary prepayment or by reason of acceleration or otherwise),
the Borrower shall pay to CoBank a prepayment surcharge equal to
the present value of any actual funding losses incurred by CoBank
as a result of such prepayment, such surcharge to be computed in
accordance with methodology established by CoBank and
demonstrated to Borrower to be reasonably calculated to reflect
CoBank's actual funding losses.
SECTION 5. Repayment and Maturity. The unpaid
principal balance of the advances shall mature and be payable on
November 1, 1994, or on such later date as CoBank may in its sole
discretion authorize in writing (the "Maturity Date").
SECTION 6. Note. The Borrower's obligation to repay
advances made under the Line shall be evidenced by a promissory
note in form and content acceptable to CoBank (the "Note").
SECTION 7. Manner and Time of Payment. The Borrower
shall make each payment under this Agreement and the Note either
by wire transfer of immediately available funds or by check.
Wire transfers shall be made to the Federal Reserve Bank of
Atlanta for advice to and credit of NATL BK COOPS, Federal
Reserve Bank Account Number 0619-0193-1 (or to such other account
as CoBank may designate by notice). The Borrower shall give
CoBank telephonic notice no later than 12:00 noon Central time of
its intent to pay by wire transfer. Wire transfers received
-4-
after 3:00 p.m. Central time shall be credited on the next
business day. Checks shall be mailed or delivered to CoBank at
Drawer CS 198552, Atlanta, GA 30384-8552 (or to such other
address as CoBank may designate by notice). Credit for payment
by check will not be given until the next business day after
receipt of the check or the actual receipt of immediately
available funds, whichever is later.
SECTION 8. Capitalization. The Borrower agrees to
make such investments in CoBank as CoBank may from time to time
require in accordance with its bylaws and capital plan. In
connection with the foregoing, the Borrower hereby acknowledges
receipt, prior to the execution of this document, of a written
description of the terms and conditions under which equity is
issued. All such investments and all other equities which the
Borrower may now own or hereafter acquire or be allocated in
CoBank shall be subject to a statutory first lien in favor of
CoBank to secure any indebtedness of the Borrower to CoBank.
SECTION 9. Security. Except as provided above, the
Borrower's obligations hereunder and under the Note(s) shall be
unsecured.
SECTION 10. Conditions Precedent. CoBank's obligation
to make the initial advance hereunder is subject to the following
conditions precedent:
(A) Due Execution. That CoBank receive duly
executed copies of this Agreement and all instruments
and documents contemplated hereby.
(B) Approvals. That CoBank receive evidence
satisfactory to it that all consents and approvals
which are necessary for, or required as a condition of,
the validity and enforceability of this Agreement and
all documents and instruments contemplated hereby, have
been obtained and are in full force and effect.
(C) Event of Default. That no Event of Default
(as defined in Section 14 hereof), or event which with
the passage of time or the giving of notice or both
would become an Event of Default hereunder, exists.
SECTION 11. Representations and Warranties. To induce
CoBank to extend credit hereunder, and recognizing that CoBank is
relying hereon, the Borrower represents and warrants as follows:
(A) Application. As of the date hereof, all
representations, warranties, and information set forth
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in, or furnished in connection with, the Application
submitted in connection herewith are true and correct.
(B) Conflicting Agreements, Etc. Neither this
Agreement nor any instrument or document contemplated
hereby conflicts with any agreement to which the
Borrower is a party or with any provision of the
Borrower's bylaws or articles of incorporation.
(C) Binding Agreement. This Agreement and all
instruments and documents contemplated hereby will,
when delivered, constitute legal, valid, and binding
obligations of the Borrower, enforceable in accordance
with their terms.
(D) Defaults Under Other Agreements. The
Borrower is not in default under any agreement or
instrument to which it is a party or under which any of
its properties are subject, that is material to its
financial condition, operations, properties, profits,
or business, including the Indenture (as defined in
Subsection 12(D) hereof).
SECTION 12. Affirmative Covenants. Unless otherwise
agreed to in writing by CoBank, while this Agreement is in
effect, whether or not any indebtedness is outstanding hereunder,
the Borrower agrees to:
(A) Eligibility. Maintain its status as an
entity eligible to borrow from CoBank.
(B) Corporate Existence. Preserve and keep in
full force and effect its corporate existence and good
standing in the jurisdiction of its incorporation, its
qualification to transact business in all places
required by law, and all licenses, certificates,
permits, authorizations, approvals, and the like which
are material to the conduct of its business or required
by law.
(C) Compliance with Laws. Comply in all material
respects with all applicable federal, state, and local
laws, rules, regulations, ordinances, codes, and orders
material to the conduct of the Borrower's business or
the management of its property (collectively "Laws").
Without limiting the foregoing, the Borrower agrees to
comply in all material respects with all Laws relating
to securities, and agrees to comply in all material
respects, and to cause all persons occupying or present
on any properties of Borrower to so comply, with all
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Laws relating to environmental protection.
Notwithstanding the foregoing, Borrower's failure to
comply with this Subsection (C) will not constitute a
default under this Agreement unless such failure
adversely and materially affects Borrower's ability to
comply with its payment obligations under this
Agreement.
(D) Insurance. Maintain "all-risk" property
insurance covering such risks, in such companies, form
and amounts sufficient to cover at all times CoBank's
entire lien interest, which lien interest shall be
shown under the terms of a standard loss payable clause
in favor of CoBank and Deposit Guaranty National Bank
as Trustee under the Indenture of Mortgage, Deed of
Trust, Assignment and Security Agreement dated as of
September 1, 1976, as supplemented, among the Borrower,
CoBank, and Deposit Guaranty National Bank as Trustee
(hereinafter referred to as "Indenture"), as indicated
in the insurance policies or by endorsements attached
thereto, and fidelity bond coverage in such companies,
form, and amounts and on such officers and employees as
CoBank may request. CoBank shall be provided thirty
(30) days' prior written notice of cancellation of any
such policy.
(E) Property Maintenance. Maintain all of its
property that is necessary to or desirable for the
proper conduct of its business in good working
condition, ordinary wear and tear excepted.
(F) Books and Records. Keep adequate records and
books of account in which complete entries will be made
in accordance with generally accepted accounting
principles ("GAAP") consistently applied.
(G) Inspection. Permit CoBank or its agents,
during normal business hours or at such other times as
the parties may agree, to examine the Borrower's
properties, books, and records, and to discuss the
Borrower's affairs, finances, and accounts with its
respective officers, directors, employees, and
independent certified public accountants.
(H) Reports and Notices. Furnish to CoBank:
(1) Annual Financial Statement.
(a) Audit. As soon as
available, but in no event later
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than ninety (90) days after the end
of any fiscal year of the Borrower
occurring during the term hereof,
annual consolidated financial
statements of the Borrower prepared
in accordance with GAAP
consistently applied. Such
financial statements shall: (i) be
audited by independent certified
public accountants selected by the
Borrower and reasonably acceptable
to CoBank; (ii) be accompanied by a
report of such accountants
containing an opinion acceptable to
CoBank; (iii) be prepared in
reasonable detail and in
comparative form; and (iv) include
a balance sheet, a statement of
income, a statement of retained
earnings, a statement of cash
flows, and all notes and schedules
relating thereto.
(b) Management Letters.
Promptly upon receipt thereof, a
copy of any management letters
submitted to the Borrower by its
independent certified public
accountant.
(2) Monthly Financial Statements. As
soon as available, but in no event more than
thirty (30) days after each month end, a
consolidated and an unconsolidated (meaning
Borrower and Restricted Subsidiaries) balance
sheet and statement of income for the period
year to date, and such other monthly
statements as CoBank may specifically and
reasonably request, all prepared in
reasonable detail in accordance with GAAP
consistently applied, and showing compliance
with all loan covenants contained herein (to
the extent that same can be demonstrated in
such financial statements).
(3) Notice of Default. Promptly after
becoming aware thereof, notice of the
occurrence of an "Event of Default" (as
defined in Section 14 hereof) or of any event
which, with the giving of notice or the
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passage of time or both, would become an
Event of Default hereunder.
(4) Notice of Non-Environmental
Litigation. Promptly after the commencement
thereof, notice of the commencement of all
actions, suits, or proceedings before any
court, arbitrator, or governmental
department, commission, board, bureau,
agency, or instrumentality affecting the
Borrower and/or any Restricted Subsidiary
which, if determined adversely to the
Borrower and/or any Restricted Subsidiary,
could have a material adverse effect on the
financial condition, properties, profits, or
operations of the Borrower and/or any
Restricted Subsidiary.
(5) Notice of Environmental Litigation,
Etc. Promptly after receipt thereof, notice
of the receipt of all pleadings, orders,
formal complaints, or indictments alleging a
condition that may require the Borrower to
undertake or to contribute to a cleanup or
other response under environmental Laws, or
which seeks penalties, damages, injunctive
relief, or criminal sanctions related to
alleged violations of such Laws, or which
claims personal injury or property damage to
any person as a result of environmental
factors or conditions.
(6) Other Information. Such other
information regarding the condition or
operations, financial or otherwise, of the
Borrower as CoBank may, from time to time,
reasonably request, including, but not
limited to, copies of all pleadings and
notices referred to in Subsections H(4) and
(5) above.
(7) Annual Budgets, Etc. As soon as
available, but in no event later than October
1 of each year during the term hereof, on an
unconsolidated (meaning Borrower and all
Restricted Subsidiaries) basis, copies of the
Borrower's annual budgets and forecasts of
operations, capital expenditures and
statements of cash flow, which shall be
supported by an itemized list of assumptions
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upon which said forecasts were based in
sufficient detail to permit CoBank to
appraise the validity of same.
(8) Quarterly Covenant Certificate. As
soon as available after the end of each
calendar quarter during the term hereof, a
certificate from the Chief Financial Officer
of the Borrower showing compliance with all
terms and conditions of this Agreement.
(I) Current Ratio. Maintain at all times a ratio
of unconsolidated current assets to unconsolidated
current liabilities (both as determined in accordance
with GAAP consistently applied) of not less than 1.3 to
1; provided, however, in determining unconsolidated
current liabilities, only the amount allowable as cash
patronage rebates under the terms of the Borrower's
loans with CoBank shall be treated as a current
liability, or the actual amount to be paid in cash if
less than 60% of earnings.
(J) Working Capital. Maintain at all times an
excess of unconsolidated current assets over
unconsolidated current liabilities (both as determined
in accordance with GAAP consistently applied) of not
less than $20,000,000.00; provided, however, in
determining unconsolidated current liabilities, only
the amount allowable as cash patronage rebates under
the terms of the Borrower's loans with CoBank shall be
treated as a current liability for purposes of this
Subsection 12(J).
(K) Additional Borrowings. Limit at all times
during the term hereof, total short-term or seasonal
borrowings from all lenders, inclusive of CoBank, to
the Borrower and all Restricted Subsidiaries (as
defined in the Indenture), whether secured and/or
unsecured, to $60,000,000.00, exclusive of loans from
the Borrower to Restricted Subsidiaries. Whenever
there is a balance outstanding and owing hereunder, no
new long-term borrowings shall be consummated without
prior notification to CoBank, unless permitted by the
Twelfth Supplement to the Indenture.
SECTION 13. Negative Covenants. Unless otherwise
agreed to in writing by CoBank, while this Agreement is in
effect, whether or not any indebtedness is outstanding hereunder,
the Borrower will not:
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(A) Borrowings. Except as provided in Subsection
12(K) hereof, create, incur, assume, or allow to exist,
directly or indirectly, any indebtedness or liability
for borrowed money or for the deferred purchase price
of property or services, except for accounts payable to
trade creditors and current operating liabilities
(other than for borrowed money) incurred in the
ordinary course of the Borrower's business.
(B) Liens. Create, incur, assume, or allow to
exist any mortgage, deed of trust, pledge, lien
(including the lien of an attachment, judgment, or
execution), security interest, or other encumbrance of
any kind upon any of its property, real or personal.
The foregoing restrictions shall not apply to (1) liens
in favor of CoBank; (2) liens for taxes, assessments,
or governmental charges that are not past due; (3)
liens, pledges and deposits under workers'
compensation, unemployment insurance, and social
security laws; (4) liens, deposits and pledges to
secure the performance of bids, tenders, contracts
(other than contracts for the payment of money), and
like obligations arising in the ordinary course of the
Borrower's business as conducted on the date hereof;
(5) liens imposed by law in favor of mechanics,
materialmen, warehousemen, and like persons that secure
obligations that are not past due; and (6) Permitted
Security Interests as set forth in Section 7.01 of the
Indenture.
(C) Mergers, Acquisitions, Etc. Merge or
consolidate with any other entity, or acquire all or
substantially all of the assets of any person or
entity, or commence operations under any other name,
organization, or entity, including any joint venture.
(D) Transfer of Assets. Sell, transfer, lease,
or otherwise dispose of any of its assets, except in
the ordinary course of the Borrower's business, and
except assets which are obsolete, surplus to Borrower's
operation or business, or replaced with assets of at
least equal value to Borrower's operation or business.
(E) Loans. Lend or advance money, credit, or
property to any person or entity, except in the
ordinary course of the Borrower's business and except
for loans to Restricted Subsidiaries, to Newsprint
South, Inc., or pursuant to the Freeport Agreement, as
amended from time to time, and defined in the
Indenture.
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(F) Contingent Liabilities. Assume, guarantee,
become liable as a surety, endorse, contingently agree
to purchase, or otherwise become liable upon the
obligation of any person or entity, except by the
endorsement of negotiable instruments for deposit or
collection, similar transactions in the ordinary course
of the Borrower's business, or with respect to any of
its Subsidiaries.
(G) Change in Business. Engage in any business
activities or operations substantially different from
or unrelated to the Borrower's currently intended
business activities or operations.
(H) Dividends and Retirement of Equities.
Declare or pay any dividends, or retire capital
equities or other written notices of allocation in
cash, or make any other distribution or allocation of
its earnings, surplus, or assets to any holder of
stock, allocated equities or other written notices of
allocation; provided, however, the Borrower may
distribute patronage-sourced earnings annually in the
form of cash and qualified and/or unqualified written
notices of allocation, so long as the cash portion of
such distribution does not exceed sixty percent (60%)
of such earnings, and such written notices constitute
equity and not debt.
(I) Secured Funded Debt. Will not, nor will it
permit any Restricted Subsidiary to, issue, guarantee,
assume, or in any manner become liable for,
contingently or otherwise, any Secured Funded Debt
unless immediately after giving effect to the issuance
and the application of the proceeds thereof Net
Tangible Assets would be not less than 166% of the
aggregate unpaid principal amount of all Secured Funded
Debt then outstanding. The terms "Restricted
Subsidiary", "Secured Funded Debt", and "Net Tangible
Assets" shall have the same meaning herein as in the
Indenture.
SECTION 14. Events of Default. Each of the following
shall constitute an "Event of Default" hereunder:
(A) Payment Default. Failure by the Borrower to
make any payment or investment required to be made
hereunder when due.
(B) Representations and Warranties. Any
representation or warranty made by the Borrower herein
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or in any agreement, certificate or document related
hereto or furnished in connection herewith, shall prove
to have been false or misleading in any respect on or
as of the date made, which false or misleading
representation or warranty has a material and adverse
effect on the Borrower's ability to comply with its
payment obligations hereunder.
(C) Certain Affirmative Covenants. Failure by
the Borrower to perform or comply with any covenant set
forth in Section 12 hereof (other than Section
12(H)(3), (4) and (5), and such failure continues for
15 days after written notice thereof shall have been
delivered by CoBank to the Borrower.
(D) Other Covenants and Agreements. The Borrower
should fail to perform or comply with any other
covenant or agreement contained herein, including any
covenant excluded under Subsection (C) above, and such
failure continues for 15 days after written notice
thereof shall have been delivered by CoBank to the
Borrower.
(E) Cross-Default. The Borrower should, after
any applicable grace period, breach or be in default
under the terms of any other agreement between the
Borrower and CoBank, including, without limitation, any
loan agreement, security agreement, mortgage, and deed
of trust.
(F) Other Indebtedness. The Borrower should
fail to pay when due any indebtedness permitted
hereunder to any other person or entity for borrowed
money or any other event occurs which, under any
agreement or instrument relating to such indebtedness,
has the effect of accelerating or permitting the
acceleration of such indebtedness, whether or not such
indebtedness is actually accelerated or the right to
accelerate is conditioned on the giving of notice, the
passage of time or otherwise, and such failure, whether
or not the indebtedness is accelerated, continues for
15 days after CoBank shall have delivered to the
Borrower written notice that CoBank will consider such
failure to constitute an Event of Default hereunder.
(G) Judgments. A judgment, decree, or order for
the payment of money in excess of $500,000.00 shall be
rendered against the Borrower and either (1)
enforcement proceedings shall have been commenced; or
(2) such judgment, decree, or order shall continue
-13-
unsatisfied and in effect for a period of 30
consecutive days without being vacated, discharged,
satisfied, or stayed pending appeal.
(H) Insolvency, Etc. The Borrower: (1) shall
become insolvent or shall generally not, or shall be
unable to, or shall admit in writing its inability to
pay its debts as they come due; or (2) shall suspend
its business operations or a material part thereof or
make an assignment for the benefit of creditors, if, in
CoBank's reasonable opinion, such suspension or
termination will have a material adverse effect on the
Borrower's overall operations; or (3) shall apply for,
consent to, or acquiesce in the appointment of a
trustee, receiver, or other custodian for it or any of
its property or, in the absence of such application,
consent, or acquiescence, a trustee, receiver, or other
custodian is so appointed, and same is not terminated
within sixty (60) days of such appointment; or (4)
shall commence or have commenced against it any
proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution, or
liquidation law or statute of any jurisdiction, which
proceeding is not dismissed or otherwise withdrawn
within sixty (60) days of the commencement of same.
(I) Material Adverse Change. Any material
adverse change occurs, as reasonably determined by
CoBank, in the Borrower's financial condition, results
of operation or ability to perform its obligations
hereunder or under any instrument or document
contemplated hereby.
SECTION 15. Suspension of Line During Grace Period.
During the continuance of any event which, with the passage of
time or the giving of notice or both would become an Event of
Default hereunder or under any other agreement between CoBank and
the Borrower, CoBank may, without notice to the Borrower, suspend
the unused portion of the Line.
SECTION 16. Remedies Upon Default. Upon the
occurrence of and during the continuance of each and every Event
of Default:
(A) Termination, Etc. CoBank may, without notice
to the Borrower, suspend the unused portion of the Line
and, upon notice to the Borrower, may terminate the
Line and declare the entire unpaid principal balance of
the Note, all accrued interest thereon and all other
amounts payable under this Agreement and all other
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agreements between CoBank and the Borrower, to be
immediately due and payable. Upon such a declaration,
the unpaid principal balance of the Note and all such
other amounts shall become immediately due and payable,
without protest, presentment, demand, or further notice
of any kind, all of which are hereby expressly waived
by the Borrower.
(B) Enforcement. CoBank may proceed to protect,
exercise, and enforce such rights and remedies as may
be provided by agreement or under law. Each and every
one of such rights and remedies shall be cumulative and
may be exercised from time to time, and no failure on
the part of CoBank to exercise, and no delay in
exercising, any right or remedy shall operate as a
waiver thereof, nor shall any single or partial
exercise of any right or remedy preclude any other or
future exercise thereof, or the exercise of any other
right. Without limiting the foregoing, except as
prohibited by the Indenture, CoBank may hold and/or set
off and apply against the Borrower's indebtedness any
and all cash, accounts, securities, or other property
in CoBank's possession or under its control.
(C) Application of Funds. All amounts received
by CoBank shall be applied to amounts owing hereunder
and under the Note in such order and manner as CoBank
may in its sole discretion elect.
SECTION 17. Complete Agreement, Amendments. This
Agreement and all documents and instruments contemplated hereby
are intended by the parties to be a complete and final expression
of their agreement with respect to the subject matter thereof.
No amendment, modification, or waiver of any provision hereof or
thereof, nor any consent to any departure of the Borrower
herefrom or therefrom, shall be effective unless approved by
CoBank and contained in a writing signed by or on behalf of
CoBank, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which
given. No amendment or modification hereof, or of any documents
or instruments contemplated hereby, shall be enforceable against
the Borrower unless signed by the Borrower.
SECTION 18. Applicable Law. Except to the extent
governed by applicable federal law, this Agreement and the Note
shall be governed by and construed in accordance with the laws of
the State of Mississippi, without reference to choice of law
doctrine.
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SECTION 19. Notices. All notices hereunder shall be
in writing and shall be deemed to be duly given upon delivery, if
personally delivered, sent by telegram or facsimile transmission,
or if sent by express, certified or registered mail, to the
parties at the following addresses (or such other address for a
party as shall be specified by like notice):
If to CoBank, as follows: If to the Borrower, as follows:
National Bank for Cooperatives Mississippi Chemical Corporation
6360 I-55 North, Suite 410 P. O. Box 388
P. O. Box 16099 Yazoo City, MS 39194-0388
Jackson, MS 39236-0099 Attn: William F. Hawkins
Attn: Credit Department Facsimile No. (601) 746-9158
Facsimile No. (601) 977-4045
SECTION 20. Costs and Expenses. To the extent allowed
by law, the Borrower agrees to pay to CoBank, on demand, all
out-of-pocket costs and expenses incurred by CoBank (including the
reasonable fees and expenses of counsel retained by CoBank) in
connection with the perfection, maintenance and release of any
security provided for hereunder and the preservation and
enforcement of CoBank's rights hereunder, under the Note, and any
security or other agreement related hereto.
SECTION 21. Effectiveness and Severability. This
Agreement shall continue in effect until all indebtedness and
obligations of the Borrower hereunder and under all instruments and
documents contemplated hereby shall have been repaid or the Line
shall expire, whichever is later. Any provision of this Agreement
or of any instrument or document contemplated hereby which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof or thereof.
SECTION 22. Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the Borrower and
CoBank and their respective successors and assigns, except that the
Borrower may not assign or transfer its rights or obligations
hereunder without the prior written consent of CoBank.
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SECTION 23. Acceptance. This Agreement shall not become
effective unless CoBank shall have received a duly executed copy of
this Agreement by November 12, 1993.
NATIONAL BANK FOR COOPERATIVES
By:___________________________
Vice President
ACCEPTED AND AGREED TO:
MISSISSIPPI CHEMICAL CORPORATION
By:___________________________
Title:________________________
Date:_________________________
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Exhibit 4.5
NATIONAL BANK FOR COOPERATIVES
AMENDED AND RESTATED LINE OF CREDIT AGREEMENT
Number 6871(B)
October 22, 1993
MISSISSIPPI CHEMICAL CORPORATION
YAZOO CITY, MISSISSIPPI
$15,000,000.00 COMMODITY LOAN (VARIABLE) AMENDED TO INCREASE THE
AMOUNT TO $20,000,000.00
THIS AMENDED AND RESTATED LINE OF CREDIT AGREEMENT
("Agreement") is entered into as of the 22nd day of October, 1993,
between the NATIONAL BANK FOR COOPERATIVES ("CoBank") and
MISSISSIPPI CHEMICAL CORPORATION (the "Borrower").
WHEREAS, CoBank and the Borrower entered into Line of
Credit Agreement No. 6871; and
WHEREAS, CoBank and the Borrower now desire to amend and
restate Line of Credit Agreement No. 6871.
NOW, THEREFORE, for valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree
as follows:
SECTION 1. The Line of Credit. On the terms and
conditions set forth in this Agreement, CoBank agrees to make
available to the Borrower during the period commencing on November
1, 1993, and ending on but not including October 31, 1994, or such
later date as CoBank may in its sole discretion authorize in
writing, a revolving line of credit in an amount equal to the
lesser of the Borrowing Base (as defined in Section 6 hereof) or
$20,000,000.00 (the "Line"). Within the limits of the Line, the
Borrower may borrow, repay, and reborrow.
SECTION 2. Purpose. Advances under the Line shall be
used to finance inventories of the Borrower which enjoy broad
markets and are of commercial quality acceptable to CoBank, and to
finance the operating needs of the Borrower's Restricted
Subsidiaries, and the Borrower agrees to utilize the proceeds of
the Line for that purpose.
SECTION 3. Availability.
(A) Advances. Advances under the Line will be made
available on any day on which CoBank is open for business upon the
telephonic or written request of any individuals authorized by the
Borrower. Requests for advances must be received by CoBank no
later than 12:00 noon, Central time on the day the advance is
desired. Unless otherwise agreed, all advances will be made
available by wire transfer of immediately available funds. Wire
transfers will be made to such account or accounts as the Borrower
may authorize from time to time on forms supplied by CoBank. In
making advances on telephonic request, CoBank shall be entitled to
rely on (and shall incur no liability to the Borrower in acting
upon) any request made by a person identifying himself or herself
as one of the persons authorized by the Borrower to request
advances hereunder.
(B) Bankers Acceptances. Bankers acceptances will be
created and discounted in accordance with the Acceptance Agreement
dated November 7, 1989, which agreement shall govern the rights and
obligations of the parties with respect to such acceptances
("Acceptance Agreement"). The full face amount of each acceptance
shall reduce the amount available under the Line and at maturity,
each acceptance shall be automatically repaid through an advance
under the Line.
SECTION 4. Interest.
(A) The Borrower agrees to pay interest on the unpaid
principal balance hereunder in accordance with one of the following
interest rate options, as selected by the Borrower:
(1) Variable Rate Option. At a rate per annum
equal at all times to the National Variable Rate (as
hereinafter defined) minus one hundred (100) basis
points. For purposes hereof, the National Variable Rate
shall mean the rate of interest established by CoBank
from time to time as its National Variable Rate. The
National Variable Rate is intended by CoBank to be a
reference rate, and CoBank may charge other borrowers
rates at, above, or below that rate. Any change in the
National Variable Rate shall take effect on the date
established by CoBank as the effective date of such
change, and CoBank agrees to notify the Borrower promptly
after any change in the rate.
(2) Quoted Rate Option. At a fixed rate to be
quoted by CoBank in its sole and absolute discretion.
Under this option, the minimum amount that may be fixed
at any one time for any single period shall be $100,000,
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and rates may be fixed for periods ranging from 5 to 365
days. However, rates may only be fixed for periods which
expire on a day on which CoBank is open for business.
(3) LIBOR Option. At a fixed rate equal to LIBOR
(as hereinafter defined) plus 125 basis points per annum
for periods of 1 month, 2 months, 3 months, 6 months, or
9 months, as selected by the Borrower. For purposes
hereof, LIBOR shall mean the rate indicated by Reuters
(screen LIBO) as having been quoted by Bankers Trust at
11:00 a.m. London time on the date the rate is fixed for
the offering of U.S. dollar deposits in the London
interbank market for the period designated by the
Borrower. Notwithstanding such reference, for purposes
hereof, the term "month" or "months" shall mean a period
consisting of 30 days or integral multiples thereof;
provided, however, that in the event any such period
expires on a day on which CoBank is not open for
business, such period shall be extended to the next day
on which CoBank is open for business. Under this option,
the minimum amount that may be fixed at any one time
shall be $100,000.
(4) Discount Note Option. At a fixed rate equal to
the Discount Note Rate (as hereinafter defined) plus 150
basis points per annum for periods ranging from 5 to 365
days. Under this option, the minimum amount that may be
fixed at any one time for any single period shall be
$100,000. However, rates may only be fixed for periods
which expire on a day on which CoBank is open for
business. For purposes hereof, the term Discount Note
Rate shall mean the yield to maturity on Federal Farm
Credit Banks Consolidated Systemwide Notes (Systemwide
Notes) having the same maturity date as the last day of
the fixed rate period selected by the Borrower, as quoted
by CoBank at approximately 9:30 a.m. Eastern time on the
date the rate is fixed. If, however, no yield is
available for the period selected, then the rate shall be
interpolated based on the rates quoted by CoBank for the
next longer and shorter maturity dates for Systemwide
Notes. In the event that no issues of Systemwide Notes
are available for such interpolation or that the issuance
of Systemwide Notes ceases, then CoBank will notify the
Borrower and either (i) this interest rate option will
cease to be available, or (ii) the parties hereto may
agree upon a substitute basis for fixing rates based upon
similar issues of discount notes or other debt
instruments.
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The Borrower shall select the applicable rate option at the time it
requests an advance hereunder and may, on any CoBank business day,
elect to convert qualifying amounts bearing interest at the
variable rate option to one of the fixed rate options. In
addition, on the last day of any fixed rate period, the Borrower
may elect to fix the rate for an additional period or to convert
the rate to the variable rate option. In the absence of any such
election or in the absence of any election made at the time an
advance is made hereunder, interest shall automatically accrue at
the variable rate option. All elections provided for herein shall
be made in the same manner and by the same time as is provided in
Section 3 hereof for requests for advances, and in no event may
rates be fixed for periods expiring after the Maturity Date (as
defined in Section 5 hereof).
(B) Payment and Calculation. Interest shall be payable
monthly in arrears by the 20th day of the following month, and
shall be calculated on the actual number of days each advance is
outstanding on the basis of a year consisting of 360 days. In
calculating interest, the date each advance is made shall be
included and the date each advance is repaid shall be excluded.
(C) Default Rate. If prior to maturity the Borrower
fails to make any payment or investment required to be made under
the terms of this agreement (including this Section), then at
CoBank's option in each instance, such payment or investment shall
bear interest at 4 percent per annum in excess of the rate set
forth in Subsection (A) above. After maturity, whether by reason
of acceleration or otherwise, the unpaid principal balance
hereunder shall automatically bear interest at 4 percent per annum
in excess of the rates that would otherwise be in effect. All
interest provided for in this Subsection shall be payable on demand
and shall be calculated from the date such payment was due to the
date paid on the basis of a year consisting of 360 days.
(D) Prepayment Surcharge. In the event any balance
bearing interest at a fixed rate is repaid on a day earlier than
the last day of any fixed rate period (whether as a result of a
voluntary prepayment or by reason of acceleration or otherwise),
the Borrower shall pay to CoBank a prepayment surcharge equal to
the present value of any actual funding losses incurred by CoBank
as a result of such prepayment, such surcharge to be computed in
accordance with methodology established by CoBank and demonstrated
to Borrower to be reasonably calculated to reflect CoBank's actual
funding losses.
SECTION 5. Repayment and Maturity. The unpaid principal
balance of the advances shall mature and be payable on November 1,
1994, or on such later date as CoBank may in its sole discretion
authorize in writing (the "Maturity Date").
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SECTION 6. Borrowing Base, Reports, Etc.
(A) Borrowing Base. For purposes hereof, the term
"Borrowing Base" shall mean sixty-five percent (65%) of the market
value of the inventory securing advances hereunder.
(B) Reports. Monthly, within twenty-one (21) days of
each month-end during the term hereof, or more frequently as CoBank
may reasonably request, the Borrower will submit to CoBank a
Borrowing Base Report in form and content acceptable to CoBank.
Such Reports shall be due only if there is a balance outstanding
under the Line.
(C) Mandatory Repayment. If at any time the amount
outstanding under the Line exceeds the Borrowing Base, the Borrower
shall immediately notify CoBank and, at its option, shall either
repay so much of the Line as is necessary to reduce the amount
outstanding under the Line to the limits of the Borrowing Base, or
shall restore the required margin of security.
SECTION 7. Note. The Borrower's obligation to repay
advances made under the Line shall be evidenced by a promissory
note in form and content acceptable to CoBank (the "Note").
SECTION 8. Manner and Time of Payment. The Borrower
shall make each payment under this Agreement and the Note either by
wire transfer of immediately available funds or by check. Wire
transfers shall be made to the Federal Reserve Bank of Atlanta for
advice to and credit of NATL BK COOPS, Federal Reserve Bank Account
Number 0619-0193-1 (or to such other account as CoBank may
designate by notice). The Borrower shall give CoBank telephonic
notice no later than 12:00 noon Central time of its intent to pay
by wire transfer. Wire transfers received after 3:00 p.m. Central
time shall be credited on the next business day. Checks shall be
mailed or delivered to CoBank at Drawer CS 198552, Atlanta, GA
30384-8552 (or to such other address as CoBank may designate by
notice). Credit for payment by check will not be given until the
next business day after receipt of the check or the actual receipt
of immediately available funds, whichever is later.
SECTION 9. Capitalization. The Borrower agrees to make
such investments in CoBank as CoBank may from time to time require
in accordance with its bylaws and capital plan. In connection with
the foregoing, the Borrower hereby acknowledges receipt, prior to
the execution of this document, of a written description of the
terms and conditions under which equity is issued. All such
investments and all other equities which the Borrower may now own
or hereafter acquire or be allocated in CoBank shall be subject to
a statutory first lien in favor of CoBank to secure any
indebtedness of the Borrower to CoBank.
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SECTION 10. Security. In addition to the above, the
Borrower's obligations hereunder and under all instruments and
documents contemplated hereby shall be secured by a first priority
lien (subject only to those exceptions approved in writing by
CoBank) pursuant to all existing Security Agreement(s) between
CoBank and Borrower covering all of Borrower's inventory of every
type and description, maintained in the conduct of Borrower's
business, whether such inventory is now existing or hereafter
acquired as additional inventory, or as replacement for existing
inventory, consisting of fertilizer, chemicals, raw materials used
in the manufacture of fertilizer and fertilizer materials,
fertilizer in the process of mixing, liquid and mixed fertilizer,
fertilizer in bulk or bags, and all proceeds and products of said
inventory, which is held by W. F. Hawkins as Collateral Officer and
Ginger Roark as Alternate Collateral Officer under a Collateral
Agreement dated as of November 7, 1989, among the Borrower, CoBank
and the Collateral Officers.
SECTION 11. Conditions Precedent. CoBank's obligation
to make the initial advance hereunder is subject to the following
conditions precedent:
(A) Due Execution. That CoBank receive duly
executed copies of this Agreement and all instruments and
documents contemplated hereby.
(B) Approvals. That CoBank receive evidence
satisfactory to it that all consents and approvals which
are necessary for, or required as a condition of, the
validity and enforceability of this Agreement and all
documents and instruments contemplated hereby, have been
obtained and are in full force and effect.
(C) Event of Default. That no Event of Default (as
defined in Section 15 hereof), or event which with the
passage of time or the giving of notice or both would
become an Event of Default hereunder, exists.
SECTION 12. Representations and Warranties. To induce
CoBank to extend credit hereunder, and recognizing that CoBank is
relying hereon, the Borrower represents and warrants as follows:
(A) Application. As of the date hereof, all
representations, warranties, and information set forth
in, or furnished in connection with, the Application
submitted in connection herewith are true and correct.
(B) Conflicting Agreements, Etc. Neither this
Agreement nor any instrument or document contemplated
hereby conflicts with any agreement to which the Borrower
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is a party or with any provision of the Borrower's bylaws
or articles of incorporation.
(C) Binding Agreement. This Agreement and all
instruments and documents contemplated hereby will, when
delivered, constitute legal, valid, and binding
obligations of the Borrower, enforceable in accordance
with their terms.
(D) Defaults Under Other Agreements. The Borrower
is not in default under any agreement or instrument to
which it is a party or under which any of its properties
are subject, that is material to its financial condition,
operations, properties, profits, or business, including
the Indenture (as defined in Subsection 13(D) hereof).
SECTION 13. Affirmative Covenants. Unless otherwise
agreed to in writing by CoBank, while this Agreement is in effect,
whether or not any indebtedness is outstanding hereunder, the
Borrower agrees to:
(A) Eligibility. Maintain its status as an entity
eligible to borrow from CoBank.
(B) Corporate Existence. Preserve and keep in full
force and effect its corporate existence and good
standing in the jurisdiction of its incorporation, its
qualification to transact business in all places required
by law, and all licenses, certificates, permits,
authorizations, approvals, and the like which are
material to the conduct of its business or required by
law.
(C) Compliance with Laws. Comply in all material
respects with all applicable federal, state, and local
laws, rules, regulations, ordinances, codes, and orders
material to the conduct of the Borrower's business or the
management of its property (collectively "Laws").
Without limiting the foregoing, the Borrower agrees to
comply in all material respects with all Laws relating to
securities, and agrees to comply in all material
respects, and to cause all persons occupying or present
on any properties of Borrower to so comply, with all Laws
relating to environmental protection. Notwithstanding
the foregoing, Borrower's failure to comply with this
Subsection (C) will not constitute a default under this
Agreement unless such failure adversely and materially
affects Borrower's ability to comply with its payment
obligations under this Agreement.
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(D) Insurance. Maintain "all-risk" property
insurance covering such risks, in such companies, form
and amounts sufficient to cover at all times CoBank's
entire lien interest, which lien interest shall be shown
under the terms of a standard loss payable clause in
favor of CoBank and Deposit Guaranty National Bank as
Trustee under the Indenture of Mortgage, Deed of Trust,
Assignment and Security Agreement dated as of September
1, 1976, as supplemented, among the Borrower, CoBank, and
Deposit Guaranty National Bank as Trustee (hereinafter
referred to as "Indenture"), as indicated in the
insurance policies or by endorsements attached thereto,
and fidelity bond coverage in such companies, form, and
amounts and on such officers and employees as CoBank may
request. CoBank shall be provided thirty (30) days'
prior written notice of cancellation of any such policy.
(E) Property Maintenance. Maintain all of its
property that is necessary to or desirable for the proper
conduct of its business in good working condition,
ordinary wear and tear excepted.
(F) Books and Records. Keep adequate records and
books of account in which complete entries will be made
in accordance with generally accepted accounting
principles ("GAAP") consistently applied.
(G) Inspection. Permit CoBank or its agents,
during normal business hours or at such other times as
the parties may agree, to examine the Borrower's
properties, books, and records, and to discuss the
Borrower's affairs, finances, and accounts with its
respective officers, directors, employees, and
independent certified public accountants.
(H) Reports and Notices. Furnish to CoBank:
(1) Annual Financial Statement.
(a) Audit. As soon as
available, but in no event later than
ninety (90) days after the end of any
fiscal year of the Borrower occurring
during the term hereof, annual
consolidated financial statements of
the Borrower prepared in accordance
with GAAP consistently applied. Such
financial statements shall: (i) be
audited by independent certified
public accountants selected by the
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Borrower and reasonably acceptable to
CoBank; (ii) be accompanied by a
report of such accountants containing
an opinion acceptable to CoBank;
(iii) be prepared in reasonable
detail and in comparative form; and
(iv) include a balance sheet, a
statement of income, a statement of
retained earnings, a statement of
cash flows, and all notes and
schedules relating thereto.
(b) Management Letters.
Promptly upon receipt thereof, a copy
of any management letters submitted
to the Borrower by its independent
certified public accountant.
(2) Monthly Financial Statements. As
soon as available, but in no event more than
thirty (30) days after each month end, a
consolidated and an unconsolidated (meaning
Borrower and Restricted Subsidiaries) balance
sheet and statement of income for the period
year to date, and such other monthly statements
as CoBank may specifically and reasonably
request, all prepared in reasonable detail in
accordance with GAAP consistently applied, and
showing compliance with all loan covenants
contained herein (to the extent that same can
be demonstrated in such financial statements).
(3) Notice of Default. Promptly after
becoming aware thereof, notice of the
occurrence of an "Event of Default" (as defined
in Section 15 hereof) or of any event which,
with the giving of notice or the passage of
time or both, would become an Event of Default
hereunder.
(4) Notice of Non-Environmental
Litigation. Promptly after the commencement
thereof, notice of the commencement of all
actions, suits, or proceedings before any
court, arbitrator, or governmental department,
commission, board, bureau, agency, or
instrumentality affecting the Borrower and/or
any Restricted Subsidiary which, if determined
adversely to the Borrower and/or any Restricted
Subsidiary, could have a material adverse
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effect on the financial condition, properties,
profits, or operations of the Borrower and/or
any Restricted Subsidiary.
(5) Notice of Environmental Litigation,
Etc. Promptly after receipt thereof, notice of
the receipt of all pleadings, orders, formal
complaints, or indictments alleging a condition
that may require the Borrower to undertake or
to contribute to a cleanup or other response
under environmental Laws, or which seeks
penalties, damages, injunctive relief, or
criminal sanctions related to alleged
violations of such Laws, or which claims
personal injury or property damage to any
person as a result of environmental factors or
conditions.
(6) Other Information. Such other
information regarding the condition or
operations, financial or otherwise, of the
Borrower as CoBank may, from time to time,
reasonably request, including, but not limited
to, copies of all pleadings and notices
referred to in Subsections H(4) and (5) above.
(7) Monthly Borrowing Base Report. The
monthly Borrowing Base Report as set forth in
Subsection 6(B) hereof.
(8) Annual Budgets, Etc. As soon as
available, but in no event later than October 1
of each year during the term hereof, on an
unconsolidated (meaning Borrower and all
Restricted Subsidiaries) basis, copies of the
Borrower's annual budgets and forecasts of
operations, capital expenditures and statements
of cash flow, which shall be supported by an
itemized list of assumptions upon which said
forecasts were based in sufficient detail to
permit CoBank to appraise the validity of same.
(9) Quarterly Covenant Certificate. As
soon as available after the end of each
calendar quarter during the term hereof, a
certificate from the Chief Financial Officer of
the Borrower showing compliance with all terms
and conditions of this Agreement.
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(I) Acceptance Agreement. Remain in compliance
with the Acceptance Agreement.
(J) Current Ratio. Maintain at all times a ratio
of unconsolidated current assets to unconsolidated
current liabilities (both as determined in accordance
with GAAP consistently applied) of not less than 1.3 to
1; provided, however, in determining unconsolidated
current liabilities, only the amount allowable as cash
patronage rebates under the terms of the Borrower's loans
with CoBank shall be treated as a current liability, or
the actual amount to be paid in cash if less than 60% of
earnings.
(K) Working Capital. Maintain at all times an
excess of unconsolidated current assets over
unconsolidated current liabilities (both as determined in
accordance with GAAP consistently applied) of not less
than $20,000,000.00; provided, however, in determining
unconsolidated current liabilities, only the amount
allowable as cash patronage rebates under the terms of
the Borrower's loans with CoBank shall be treated as a
current liability for purposes of this Subsection 13(J).
SECTION 14. Negative Covenants. Unless otherwise agreed
to in writing by CoBank, while this Agreement is in effect, whether
or not any indebtedness is outstanding hereunder, the Borrower will
not:
(A) Borrowings. Except as provided in Subsection
12(K) of the Borrower's Seasonal Line Number 6872,
create, incur, assume, or allow to exist, directly or
indirectly, any indebtedness or liability for borrowed
money or for the deferred purchase price of property or
services, except for accounts payable to trade creditors
and current operating liabilities (other than for
borrowed money) incurred in the ordinary course of the
Borrower's business.
(B) Liens. Create, incur, assume, or allow to
exist any mortgage, deed of trust, pledge, lien
(including the lien of an attachment, judgment, or
execution), security interest, or other encumbrance of
any kind upon any of its property, real or personal. The
foregoing restrictions shall not apply to (1) liens in
favor of CoBank; (2) liens for taxes, assessments, or
governmental charges that are not past due; (3) liens,
pledges and deposits under workers' compensation,
unemployment insurance, and social security laws; (4)
liens, deposits and pledges to secure the performance of
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bids, tenders, contracts (other than contracts for the
payment of money), and like obligations arising in the
ordinary course of the Borrower's business as conducted
on the date hereof; (5) liens imposed by law in favor of
mechanics, materialmen, warehousemen, and like persons
that secure obligations that are not past due; and (6)
Permitted Security Interests as set forth in Section 7.01
of the Indenture.
(C) Mergers, Acquisitions, Etc. Merge or
consolidate with any other entity, or acquire all or
substantially all of the assets of any person or entity,
or commence operations under any other name,
organization, or entity, including any joint venture.
(D) Transfer of Assets. Sell, transfer, lease, or
otherwise dispose of any of its assets, except in the
ordinary course of the Borrower's business, and except
assets which are obsolete, surplus to Borrower's
operation or business, or replaced with assets of at
least equal value to Borrower's operation or business.
(E) Loans. Lend or advance money, credit, or
property to any person or entity, except in the ordinary
course of the Borrower's business, and except for loans
to Restricted Subsidiaries, to Newsprint South, Inc., or
pursuant to the Freeport Agreement, as amended from time
to time, and defined in the Indenture.
(F) Contingent Liabilities. Assume, guarantee,
become liable as a surety, endorse, contingently agree to
purchase, or otherwise become liable upon the obligation
of any person or entity, except by the endorsement of
negotiable instruments for deposit or collection, similar
transactions in the ordinary course of the Borrower's
business, or with respect to any of its Subsidiaries.
(G) Change in Business. Engage in any business
activities or operations substantially different from or
unrelated to the Borrower's currently intended business
activities or operations.
(H) Dividends and Retirement of Equities. Declare
or pay any dividends, or retire capital equities or other
written notices of allocation in cash, or make any other
distribution or allocation of its earnings, surplus, or
assets to any holder of stock, allocated equities or
other written notices of allocation; provided, however,
the Borrower may distribute patronage-sourced earnings
annually in the form of cash and qualified and/or
-12-
unqualified written notices of allocation, so long as the
cash portion of such distribution does not exceed sixty
percent (60%) of such earnings, and such written notices
constitute equity and not debt.
(I) Secured Funded Debt. Will not, nor will it
permit any Restricted Subsidiary to, issue, guarantee,
assume, or in any manner become liable for, contingently
or otherwise, any Secured Funded Debt unless immediately
after giving effect to the issuance and the application
of the proceeds thereof Net Tangible Assets would be not
less than 166% of the aggregate unpaid principal amount
of all Secured Funded Debt then outstanding. The terms
"Restricted Subsidiary", "Secured Funded Debt", and "Net
Tangible Assets" shall have the same meaning herein as in
the Indenture.
SECTION 15. Events of Default. Each of the following
shall constitute an "Event of Default" hereunder:
(A) Payment Default. Failure by the Borrower to
make any payment or investment required to be made
hereunder when due.
(B) Representations and Warranties. Any
representation or warranty made by the Borrower herein or
in any agreement, certificate or document related hereto
or furnished in connection herewith, shall prove to have
been false or misleading in any respect on or as of the
date made, which false or misleading representation or
warranty has a material and adverse affect on the
Borrower's ability to comply with its payment obligations
hereunder.
(C) Certain Affirmative Covenants. Failure by the
Borrower to perform or comply with any covenant set forth
in Section 13 hereof (other than Section 13(H)(3), (4)
and (5)), or to furnish any Borrowing Base Report
required by Section 6(B) hereof, and such failure
continues for 15 days after written notice thereof shall
have been delivered by CoBank to the Borrower.
(D) Other Covenants and Agreements. The Borrower
should fail to perform or comply with any other covenant
or agreement contained herein, including any covenant
excluded under Subsection (C) above, and such failure
continues for 15 days after written notice thereof shall
have been delivered by CoBank to the Borrower.
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(E) Cross-Default. The Borrower should, after any
applicable grace period, breach or be in default under
the terms of any other agreement between the Borrower and
CoBank, including, without limitation, any loan
agreement, security agreement, mortgage, and deed of
trust.
(F) Other Indebtedness. The Borrower should fail
to pay when due any indebtedness permitted hereunder to
any other person or entity for borrowed money or any
other event occurs which, under any agreement or
instrument relating to such indebtedness, has the effect
of accelerating or permitting the acceleration of such
indebtedness, whether or not such indebtedness is
actually accelerated or the right to accelerate is
conditioned on the giving of notice, the passage of time
or otherwise, and such failure, whether or not the
indebtedness is accelerated, continues for 15 days after
CoBank shall have delivered to the Borrower written
notice that CoBank will consider such failure to
constitute an Event of Default hereunder.
(G) Judgments. A judgment, decree, or order for
the payment of money in excess of $500,000.00 shall be
rendered against the Borrower and either (1) enforcement
proceedings shall have been commenced; or (2) such
judgment, decree, or order shall continue unsatisfied and
in effect for a period of 30 consecutive days without
being vacated, discharged, satisfied, or stayed pending
appeal.
(H) Insolvency, Etc. The Borrower: (1) shall
become insolvent or shall generally not, or shall be
unable to, or shall admit in writing its inability to pay
its debts as they come due; or (2) shall suspend its
business operations or a material part thereof or make an
assignment for the benefit of creditors, if, in CoBank's
reasonable opinion, such suspension or termination will
have a material adverse effect on the Borrower's overall
operations; or (3) shall apply for, consent to, or
acquiesce in the appointment of a trustee, receiver, or
other custodian for it or any of its property or, in the
absence of such application, consent, or acquiescence, a
trustee, receiver, or other custodian is so appointed,
and same is not terminated within sixty (60) days of such
appointment; or (4) shall commence or have commenced
against it any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt,
dissolution, or liquidation law or statute of any
jurisdiction, which proceeding is not dismissed or
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otherwise withdrawn within sixty (60) days of the
commencement of same.
(I) Material Adverse Change. Any material adverse
change occurs, as reasonably determined by CoBank, in the
Borrower's financial condition, results of operation or
ability to perform its obligations hereunder or under any
instrument or document contemplated hereby.
SECTION 16. Suspension of Line During Grace Period.
During the continuance of any event which, with the passage of time
or the giving of notice or both would become an Event of Default
hereunder or under any other agreement between CoBank and the
Borrower, CoBank may, without notice to the Borrower, suspend the
unused portion of the Line.
SECTION 17. Remedies Upon Default. Upon the occurrence
of and during the continuance of each and every Event of Default:
(A) Termination, Etc. CoBank may, without notice
to the Borrower, suspend the unused portion of the Line
and, upon notice to the Borrower, may terminate the Line
and declare the entire unpaid principal balance of the
Note, all accrued interest thereon and all other amounts
payable under this Agreement and all other agreements
between CoBank and the Borrower, to be immediately due
and payable. Upon such a declaration, the unpaid
principal balance of the Note and all such other amounts
shall become immediately due and payable, without
protest, presentment, demand, or further notice of any
kind, all of which are hereby expressly waived by the
Borrower.
(B) Enforcement. CoBank may proceed to protect,
exercise, and enforce such rights and remedies as may be
provided by agreement or under law. Each and every one
of such rights and remedies shall be cumulative and may
be exercised from time to time, and no failure on the
part of CoBank to exercise, and no delay in exercising,
any right or remedy shall operate as a waiver thereof,
nor shall any single or partial exercise of any right or
remedy preclude any other or future exercise thereof, or
the exercise of any other right. Without limiting the
foregoing, except as prohibited by the Indenture, CoBank
may hold and/or set off and apply against the Borrower's
indebtedness any and all cash, accounts, securities, or
other property in CoBank's possession or under its
control.
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(C) Application of Funds. All amounts received by
CoBank shall be applied to amounts owing hereunder and
under the Note in such order and manner as CoBank may in
its sole discretion elect.
SECTION 18. Complete Agreement, Amendments. This
Agreement and all documents and instruments contemplated hereby are
intended by the parties to be a complete and final expression of
their agreement with respect to the subject matter thereof. No
amendment, modification, or waiver of any provision hereof or
thereof, nor any consent to any departure of the Borrower herefrom
or therefrom, shall be effective unless approved by CoBank and
contained in a writing signed by or on behalf of CoBank, and then
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No
amendment or modification hereof, or of any documents or
instruments contemplated hereby, shall be enforceable against the
Borrower unless signed by the Borrower.
SECTION 19. Applicable Law. Except to the extent
governed by applicable federal law, this Agreement and the Note
shall be governed by and construed in accordance with the laws of
the State of Mississippi, without reference to choice of law
doctrine.
SECTION 20. Notices. All notices hereunder shall be in
writing and shall be deemed to be duly given upon delivery, if
personally delivered, sent by telegram or facsimile transmission,
or if sent by express, certified or registered mail, to the parties
at the following addresses (or such other address for a party as
shall be specified by like notice):
If to CoBank, as follows: If to the Borrower, as follows:
National Bank for Cooperatives Mississippi Chemical Corporation
6360 I-55 North, Suite 410 P. O. Box 388
P. O. Box 16099 Yazoo City, MS 39194-0388
Jackson, MS 39236-0099 Attn: William F. Hawkins
Attn: Credit Department Facsimile No. (601) 746-9158
Facsimile No. (601) 977-4045
SECTION 21. Costs and Expenses. To the extent allowed
by law, the Borrower agrees to pay to CoBank, on demand, all
out-of-pocket costs and expenses incurred by CoBank (including
the reasonable fees and expenses of counsel retained by CoBank)
in connection with the perfection, maintenance and release of any
security provided for hereunder and the preservation and
enforcement of CoBank's rights hereunder, under the Note, and any
security or other agreement related hereto.
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SECTION 22. Effectiveness and Severability. This
Agreement shall continue in effect until all indebtedness and
obligations of the Borrower hereunder and under all instruments
and documents contemplated hereby shall have been repaid or the
Line shall expire, whichever is later. Any provision of this
Agreement or of any instrument or document contemplated hereby
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof or thereof.
SECTION 23. Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the Borrower
and CoBank and their respective successors and assigns, except
that the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of
CoBank.
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SECTION 24. Acceptance. This Agreement shall not
become effective unless CoBank shall have received a duly
executed copy of this Agreement by November 12, 1993.
NATIONAL BANK FOR COOPERATIVES
By:___________________________
Vice President
ACCEPTED AND AGREED TO:
MISSISSIPPI CHEMICAL CORPORATION
By:___________________________
Title:________________________
Date:_________________________
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Exhibit 10
AMENDMENT OF AGREEMENT FOR REAL ESTATE PURCHASE OPTION
This Amendment of Agreement for Real Estate Purchase Option
("Amendment"), made as of July 16, 1993, by and between
IMC-Agrico Company ("IMC-Agrico"), a Delaware general
partnership, and Mississippi Chemical Corporation ("Mississippi
Chemical").
W I T N E S S E T H:
WHEREAS, Mississippi Chemical and Freeport-McMoRan Resource
Partners, Limited Partnership ("Freeport") are parties to that
certain Agreement for Real Estate Purchase Option dated July 16,
1990 (the "Agreement"), whereby Mississippi Chemical granted to
Freeport an exclusive option to purchase certain property located
in Hardee County, Florida; and
WHEREAS, pursuant to paragraph 19 of the Agreement, the
Agreement was assigned as of July 1, 1993, to IMC-Agrico, the
general partner of which is IMC-Agrico MP, Inc.; and
WHEREAS, Mississippi Chemical and IMC-Agrico desire to amend
the Agreement as hereinafter set forth;
NOW, THEREFORE, Mississippi Chemical and IMC-Agrico hereby
agree as follows:
1. Paragraph 2, Option Money, of the Agreement is amended
by changing the fourth sentence thereof to read in its entirety
as follows:
Payments of Option Money relating to the second
and third years of the option period shall be due
prior to the end of the one (1) year period
preceding the option period to which they relate.
and by inserting immediately after the fourth sentence the
following new sentence:
The payment of Option Money relating to the fourth
year of the option period shall be due on or
before December 31, 1993.
2. Except as specifically set forth in this Amendment, all
of the terms and conditions of the Agreement shall continue in
full force and effect.
3. All capitalized terms used and not otherwise defined
herein shall have the meanings set forth in the Agreement.
IN WITNESS WHEREOF, Mississippi Chemical and IMC-Agrico have
caused this Amendment to be duly executed as of the date and year
first above written.
WITNESSES: MISSISSIPPI CHEMICAL CORPORATION
/s/ Allen Bridgforth By: /s/ Charles O. Dunn
/s/ Linda G. Bentley President
WITNESSES: IMC-AGRICO COMPANY, a Delaware
General Partnership
/s/ Rochelle A. Jacobson By: IMC-AGRICO MP, INC., General
/s/ Linda J. Wood Partner
By: /s/ James D. Speir
Vice President
-2-
April 26, 1994
VIA EDGAR
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D. C. 20549
Re: Mississippi Chemical Corporation
File No. 2-7803
Ladies and Gentlemen:
On behalf of the above-named registrant, enclosed
please find a Current Report on Form 8-K.
If you have any questions, please do not hesitate to
call.
Very truly yours,
Lisa M. Kaderabek
LMK/aep
Enclosure
cc: Robert E. Jones
Frederick W. Axley
