UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d)
Of The Securities Exchange Act of 1934
For Quarter Ended March 31, 2000
OR
[ ] Transition Report Pursuant to Section 13 or 15(d)
Of the Securities Exchange Act of 1934
For Quarter Ended March 31, 2000
Commission File Number 001-12217
MISSISSIPPI CHEMICAL CORPORATION
Organized in the State of Mississippi
Tax Identification No. 64-0292638
P. O. Box 388, Yazoo City, Mississippi 39194
Telephone No. 662+746-4131
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [ x ] No [ ]
The number of shares outstanding of each of the issuer's classes of
common stock, as of March 31, 2000.
Class Number of Shares
-------- ----------------
Common Stock, $0.01 par value 26,131,917
<PAGE>
MISSISSIPPI CHEMICAL CORPORATION
AND SUBSIDIARIES
INDEX
Page
Number
------
PART I. FINANCIAL INFORMATION:
Item 1. Financial Statements
Consolidated Statements of Income 3
Three months ended March 31, 2000 and 1999,
and Nine months ended March 31, 2000 and 1999
Consolidated Balance Sheets 4 - 5
March 31, 2000 and June 30, 1999
Consolidated Statements of Shareholders' Equity 6
Fiscal Year Ended June 30, 1999
and Nine months ended March 31, 2000
Consolidated Statements of Cash Flows 7
Nine months ended March 31, 2000 and 1999
Notes to Consolidated Financial Statements 8 - 17
Item 2. Management's Discussion and Analysis of Results
of Operations and Financial Condition 18 - 25
Item 3. Quantitative and Qualitative Disclosure About
Market Risk 26
PART II. OTHER INFORMATION:
Item 6. Exhibits and Reports on Form 8-K 27 - 30
Signatures 30
<PAGE>
PART>I. FINANCIAL INFORMATION
Item 1. Financial Statements.
<TABLE>
MISSISSIPPI CHEMICAL CORPORATION
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
Three months ended Nine months ended
March 31, March 31,
-------------------- --------------------
2000 1999 2000 1999
-------- -------- -------- --------
(In thousands, except per share data)
<S> <C> <C> <C> <C>
Revenues:
Net sales $129,660 $140,604 $333,970 $340,158
Operating expenses:
Cost of products sold 125,335 136,033 328,359 302,704
Selling, general and
administrative 8,411 10,410 25,269 28,877
Other 101 147 2,727 484
-------- -------- -------- --------
133,847 146,590 356,355 332,065
-------- -------- -------- --------
Operating (loss) income (4,187) (5,986) (22,385) 8,093
Other (expense) income:
Interest, net (7,098) (5,300) (19,754) (13,331)
Other 1,671 363 2,952 344
-------- -------- -------- --------
Loss before income taxes (9,614) (10,923) (39,187) (4,894)
Income tax benefit (4,403) (4,792) (18,415) (2,498)
-------- -------- -------- --------
Net loss $ (5,211) $ (6,131) $(20,772) $ (2,396)
======== ======== ======== ========
Loss per share -
basic (see Note 2) $ (0.20) $ (0.23) $ (0.79) $ (0.09)
======== ======== ======== ========
Loss per share -
diluted (see Note 2) $ (0.20) $ (0.23) $ (0.79) $ (0.09)
======== ======== ======== ========
</TABLE>
[FN]
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE>
<TABLE>
MISSISSIPPI CHEMICAL CORPORATION
AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Unaudited)
ASSETS
March 31, June 30,
2000 1999
--------- --------
(In thousands, except per share data)
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 1,728 $ 1,648
Accounts receivable, net 54,150 43,780
Inventories:
Finished products 41,076 33,061
Raw materials and supplies 6,877 7,993
Replacement parts 37,045 35,870
-------- --------
Total inventories 84,998 76,924
Income tax receivable 9,683 18,189
Insurance receivable 4,094 11,310
Prepaid expenses and other current assets 7,803 3,622
Deferred income taxes 4,206 3,286
-------- --------
Total current assets 166,662 158,759
Investments in affiliates 87,088 77,020
Other assets 11,526 19,263
Property, plant and equipment, at cost 845,457 835,306
less accumulated depreciation, depletion
and amortization (392,048) (363,222)
-------- --------
Net property, plant and equipment 453,409 472,084
Goodwill, net of accumulated amortization 168,325 171,762
-------- --------
$887,010 $898,888
======== ========
</TABLE>
[FN]
The accompanying notes are an integral part of these consolidated financial
statements.
<TABLE>
MISSISSIPPI CHEMICAL CORPORATION
AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Continued)
LIABILITIES AND SHAREHOLDERS' EQUITY
March 31, June 30,
2000 1999
--------- ---------
(In thousands, except per share data)
<S> <C> <C>
Current liabilities:
Accounts payable $ 50,564 $ 60,935
Accrued liabilities 15,065 13,460
--------- ---------
Total current liabilities 65,629 74,395
Long-term debt 340,342 305,857
Other long-term liabilities and
deferred credits 15,617 17,617
Deferred income taxes 70,148 80,791
Shareholders' equity:
Common stock ($.01 par; authorized 100,000
shares; issued 27,976) 280 280
Additional paid-in capital 305,901 305,901
Retained earnings 118,672 143,626
Treasury stock, at cost (1,844 shares) (29,579) (29,579)
-------- --------
395,274 420,228
-------- --------
$887,010 $898,888
======== ========
</TABLE>
[FN]
The accompanying notes are an integral part of these consolidated financial
statements.
<TABLE>
MISSISSIPPI CHEMICAL CORPORATION
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
MARCH 31, 2000
(Unaudited)
Additional
Common Paid-In Retained Treasury
Stock Capital Earnings Stock Total
------- --------- --------- --------- --------
(In thousands)
<S> <C> <C> <C> <C> <C>
Balances, July 1, 1998 $ 280 $305,901 $157,800 $(15,456) $448,525
Net loss - - (3,608) - (3,608)
Cash dividends paid - - (10,566) - (10,566)
Treasury stock, net - - - (14,123) (14,123)
------- -------- -------- -------- --------
Balances, June 30, 1999 280 305,901 143,626 (29,579) 420,228
Net loss - - (20,772) - (20,772)
Cash dividends paid - - (4,182) - (4,182)
------- -------- -------- -------- --------
Balances,
March 31, 2000 $ 280 $305,901 $118,672 $(29,579) $395,274
======= ======== ======== ======== ========
</TABLE>
[FN]
The accompanying notes are an integral part of these consolidated financial
statements.
<TABLE>
MISSISSIPPI CHEMICAL CORPORATION
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Nine months ended March 31,
2000 1999
--------- ----------
(In thousands)
<S> <C> <C>
Cash flows from operating activities:
Net loss $ (20,772) $ (2,396)
Reconciliation of net loss to net cash
used in operating activities:
Net change in operating assets and
liabilities (16,566) (55,853)
Depreciation, depletion and amortization 35,038 31,222
Deferred income taxes (9,443) 7,287
Equity earnings in unconsolidated
affiliates (10,339) 1,251
Other (797) 2,010
-------- --------
Net cash used in operating activities (22,879) (16,479)
-------- --------
Cash flows from investing activities:
Purchase of property, plant and equipment (15,704) (33,984)
Investment in Farmland MissChem Limited - (3,358)
Collections on note receivable - 54,625
Other 8,400 (819)
-------- --------
Net cash (used in) provided by
investing activities (7,304) 16,464
-------- --------
Cash flows from financing activities:
Debt proceeds 294,399 402,250
Debt payments (259,954) (381,652)
Cash dividends paid (4,182) (7,952)
Purchase of treasury stock - (14,123)
-------- --------
Net cash provided by (used in)
financing activities 30,263 (1,477)
-------- --------
Net increase (decrease) in cash and
cash equivalents 80 (1,492)
Cash and cash equivalents -
beginning of period 1,648 3,857
-------- --------
Cash and cash equivalents -
end of period $ 1,728 $ 2,365
======== ========
</TABLE>
[FN]
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE>
MISSISSIPPI CHEMICAL CORPORATION
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - INTERIM FINANCIAL STATEMENTS
The accompanying consolidated financial statements have been prepared by us
without audit, and include Mississippi Chemical Corporation, its subsidiaries
and affiliates. In our opinion, the financial statements reflect all
adjustments necessary to present fairly our results of operations for the
three-month and the nine-month periods ended March 31, 2000 and 1999, our
financial position at March 31, 2000 and June 30, 1999, our cash flows for the
nine months ended March 31, 2000 and 1999, and our consolidated statements of
shareholders' equity as of March 31, 2000. We believe the adjustments are of
a normal recurring nature which are necessary for a fair presentation of our
financial position and results of operations for the interim periods. We have
reclassified certain prior-year information to conform with the current year's
presentation.
Certain notes and other information have been condensed or omitted in our
interim financial statements presented in this quarterly report on Form 10-Q.
Therefore, the financial statements should be read in conjunction with our 1999
Form 10-K and our consolidated financial statements and notes thereto included
in our June 30, 1999, audited financial statements.
Our business is seasonal; therefore, the results of operations for the
periods ended March 31, 2000, are not necessarily indicative of the operating
results for the full fiscal year.
NOTE 2 - EARNINGS PER SHARE
The number of shares used in our basic and diluted earnings per share
computation are as follows:
<TABLE>
Three months ended Nine months ended
March 31, March 31,
----------------- ----------------
2000 1999 2000 1999
------ ------ ------ ------
(In thousands)
<S> <C> <C> <C> <C>
Weighted average common shares
outstanding, net of treasury shares,
for basic earnings per share 26,132 26,132 26,132 26,470
Common stock equivalents for
employee stock options - - - -
------- ------- ------- -------
Weighted average common shares
outstanding for diluted
earnings per share 26,132 26,132 26,132 26,470
======= ======= ======= =======
</TABLE>
Options outstanding were not included in our computations of diluted
earnings per share for the three-month or nine-month periods ended March 31,
2000 and 1999, because the options' exercise prices were greater than the
average market price for common shares and, therefore, not dilutive.
In September 1999, our board of directors announced that quarterly cash
dividends paid in the foreseeable future would be reduced to $0.03 per common
share. The dividend of $0.03 per common share declared in January 2000, for
the three-month period ending December 31, 1999, was paid on February 25, 2000,
to holders of record on February 11, 2000. In April 2000, a regular quarterly
cash dividend of $0.03 per common share was declared for the three-month period
ending March 31, 2000. This dividend will be paid on May 25, 2000, to holders
of record on May 11, 2000.
NOTE 3 - SEGMENT INFORMATION
Our reportable operating segments, nitrogen, phosphate and potash, are
strategic business units that offer different products. They are managed
separately because each business unit requires different technology and
marketing strategies. Our nitrogen segment produces ammonia, ammonium nitrate,
urea, nitrogen solutions and nitric acid and distributes these products to
fertilizer dealers and distributors, and industrial users. Our phosphate
segment produces diammonium phosphate fertilizer (commonly referred to as
"DAP") that is marketed to agricultural users primarily in international
markets through a separate export association. Our potash segment mines and
produces granular and standard potash products and distributes them to
agricultural and industrial users. Below is our segment information for the
three-month and nine-month periods ended March 31, 2000 and 1999. The Other
caption includes corporate and consolidating eliminations.
<TABLE>
Three months ended March 31, 2000
- -----------------------------------------------------------------------------
(In thousands) Nitrogen Phosphate Potash Other Total
- -----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales -
external customers $ 77,871 $ 22,650 $ 29,139 $ - $129,660
Net sales - intersegment 4,116 20 - (4,136) -
Operating (loss) income (4,143) (3,080) 3,153 (117) (4,187)
Depreciation, depletion
and amortization 7,595 1,554 1,567 964 11,680
Capital expenditures 4,630 776 1,115 (5) 6,516
Three months ended March 31, 1999
- ------------------------------------------------------------------------------
(In thousands) Nitrogen Phosphate Potash Other Total
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales -
external customers $ 74,679 $ 38,620 $ 27,305 $ - $140,604
Net sales - intersegment 5,673 17 - (5,690) -
Operating (loss) income (13,931) 4,750 3,130 65 (5,986)
Depreciation, depletion
and amortization 6,997 1,311 1,415 805 10,528
Capital expenditures 6,545 938 3,964 852 12,299
Nine months ended March 31, 2000
- ------------------------------------------------------------------------------
(In thousands) Nitrogen Phosphate Potash Other Total
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales -
external customers $185,704 $ 78,011 $ 70,255 $ - $333,970
Net sales - intersegment 12,903 65 - (12,968) -
Operating (loss) income (22,201) (2,934) 4,020 (1,270) (22,385)
Depreciation, depletion
and amortization 22,954 4,580 4,635 2,869 35,038
Capital expenditures 9,507 2,282 3,470 445 15,704
Nine months ended March 31, 1999
- ------------------------------------------------------------------------------
(In thousands) Nitrogen Phosphate Potash Other Total
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales -
external customers $174,880 $ 97,449 $ 67,829 $ - $340,158
Net sales - intersegment 16,611 56 - (16,667) -
Operating (loss) income (14,901) 12,760 9,874 360 8,093
Depreciation, depletion
and amortization 20,731 3,753 4,121 2,617 31,222
Capital expenditures 18,864 2,318 10,951 1,851 33,984
</TABLE>
NOTE 4 - GUARANTOR SUBSIDIARIES
Payment obligations under our 7.25% Senior Notes, due November 15, 2017,
issued pursuant to that certain indenture, dated as of November 25, 1997, are
fully and unconditionally guaranteed on a joint and several basis by
Mississippi Nitrogen, Inc., and MissChem Nitrogen, L.L.C. (the "Guarantor
Subsidiaries"), our wholly owned direct subsidiary and our wholly owned
indirect subsidiary, respectively. Condensed consolidating financial
information regarding the parent company, Guarantor Subsidiaries and
non-guarantor subsidiaries for March 31, 2000 and 1999 is presented below for
purposes of complying with the reporting requirements of the Guarantor
Subsidiaries. Separate financial statements of the Guarantor Subsidiaries are
not presented because we do not believe that separate financial statements are
material to investors.
<TABLE>
CONDENSED CONSOLIDATING STATEMENT OF INCOME
Three months ended March 31, 2000
- -------------------------------------------------------------------------------
Parent Guarantor Non-Guarantor
(In thousands) Company Subsidiaries Subsidiaries Eliminations Consolidated
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Revenues:
Net sales $ - $ 38,733 $130,969 $ (40,042) $129,660
Operating expenses:
Cost of products
sold - 42,475 120,123 (37,263) 125,335
Selling, general
and administra-
tive 104 944 7,363 - 8,411
Other - - 101 - 101
------- -------- -------- --------- --------
104 43,419 127,587 (37,263) 133,847
------- -------- -------- --------- --------
Operating (loss)
income (104) (4,686) 3,382 (2,779) (4,187)
Other (expense) income:
Interest, net (6,652) (2,974) 2,528 - (7,098)
Other 1,284 9,569 14 (9,196) 1,671
------- -------- -------- --------- --------
(Loss) income before
income taxes (5,472) 1,909 5,924 (11,975) (9,614)
Income tax (benefit)
expense (261) 3,472 (5,907) (1,707) (4,403)
------- -------- -------- --------- --------
Net (loss) income $(5,211) $ (1,563) $ 11,831 $ (10,268) $ (5,211)
======= ======== ======== ========= ========
CONDENSED CONSOLIDATING STATEMENT OF INCOME
Three months ended March 31, 1999
- -------------------------------------------------------------------------------
Parent Guarantor Non-Guarantor
(In thousands) Company Subsidiaries Subsidiaries Eliminations Consolidated
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Revenues:
Net sales $ - $ 25,861 $142,497 $ (27,754) $140,604
Operating expenses:
Cost of products
sold - 27,250 138,907 (30,124) 136,033
Selling, general
and administra-
tive 1,257 2,235 6,989 (71) 10,410
Other - - 147 - 147
------- -------- -------- --------- --------
1,257 29,485 146,043 (30,195) 146,590
------- -------- -------- --------- --------
Operating loss (1,257) (3,624) (3,546) 2,441 (5,986)
Other (expense) income:
Interest, net (3,468) (1,558) (274) - (5,300)
Other (6,604) (3,691) 404 10,254 363
------- -------- -------- --------- --------
Loss before income
taxes (11,329) (8,873) (3,416) 12,695 (10,923)
Income tax (benefit)
expense (5,198) 233 106 67 (4,792)
------- -------- -------- --------- --------
Net loss $(6,131) $ (9,106) $ (3,522) $ 12,628 $ (6,131)
======= ======== ======== ========= ========
CONDENSED CONSOLIDATING STATEMENT OF INCOME
Nine months ended March 31, 2000
- -------------------------------------------------------------------------------
Parent Guarantor Non-Guarantor
(In thousands) Company Subsidiaries Subsidiaries Eliminations Consolidated
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Revenues:
Net sales $ - $ 102,691 $ 337,513 $(106,234) $333,970
Operating expenses:
Cost of products
sold - 118,398 314,668 (104,707) 328,359
Selling, general
and administra-
tive 1,236 2,906 21,127 - 25,269
Other - - 2,727 - 2,727
-------- --------- --------- --------- --------
1,236 121,304 338,522 (104,707) 356,355
-------- --------- --------- --------- --------
Operating loss (1,236) (18,613) (1,009) (1,527) (22,385)
Other (expense) income:
Interest, net (18,588) (8,431) 7,265 - (19,754)
Other (273) 8,917 831 (6,523) 2,952
-------- --------- --------- --------- --------
(Loss) income before
income taxes (20,097) (18,127) 7,087 (8,050) (39,187)
Income tax expense
(benefit) 675 (979) (14,328) (3,783) (18,415)
-------- --------- --------- --------- --------
Net (loss) income $(20,772) $ (17,148) $ 21,415 $ (4,267) $(20,772)
======== ========= ========= ========= ========
CONDENSED CONSOLIDATING STATEMENT OF INCOME
Nine months ended March 31, 1999
- -------------------------------------------------------------------------------
Parent Guarantor Non-Guarantor
(In thousands) Company Subsidiaries Subsidiaries Eliminations Consolidated
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Revenues:
Net sales $ - $ 78,365 $ 343,389 $ (81,596) $340,158
Operating expenses:
Cost of products
sold - 70,612 315,173 (83,081) 302,704
Selling, general
and administra-
tive 2,854 5,074 20,949 - 28,877
Other - - 484 - 484
------- -------- --------- --------- --------
2,854 75,686 336,606 (83,081) 332,065
------- -------- --------- --------- --------
Operating (loss)
income (2,854) 2,679 6,783 1,485 8,093
Other (expense) income:
Interest, net (8,626) (3,875) (830) - (13,331)
Other 2,379 (11,051) 668 8,348 344
-------- -------- --------- --------- ---------
(Loss) income
before income
taxes (9,101) (12,247) 6,621 9,833 (4,894)
Income tax (benefit)
expense (6,705) (691) 4,718 180 (2,498)
--------- -------- --------- --------- ---------
Net (loss) income $ (2,396) $(11,556) $ 1,903 $ 9,653 $ (2,396)
========= ======== ======== ========= ========
CONDENSED CONSOLIDATING BALANCE SHEET
March 31, 2000
- -------------------------------------------------------------------------------
Parent Guarantor Non-Guarantor
(In thousands) Company Subsidiaries Subsidiaries Eliminations Consolidated
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Current assets:
Cash and cash
equivalents $ 1,374 $ 17 $ 337 $ - $ 1,728
Receivables, net 5,366 15,527 87,238 (40,204) 67,927
Inventories - 20,370 66,182 (1,554) 84,998
Prepaid expenses
and other
current assets 4,087 1,210 10,816 (4,104) 12,009
------- -------- -------- ---------- --------
Total current
assets 10,827 37,124 164,573 (45,862) 166,662
Investments in
affiliates 707,020 351,608 70,008 (1,041,548) 87,088
Other assets 137,985 - 236,718 (363,177) 11,526
PP&E, net 12,748 151,639 289,022 - 453,409
Goodwill, net - - 168,325 - 168,325
-------- -------- -------- ----------- --------
Total assets $868,580 $540,371 $928,646 $(1,450,587) $887,010
======== ======== ======== =========== ========
Current
liabilities:
Accounts
payable $ 26,825 $ 15,274 $ 60,776 $ (52,311) $ 50,564
Accrued
liabilities 12,208 2,974 6,368 (6,485) 15,065
-------- -------- -------- ----------- --------
Total current
liabilities 39,033 18,248 67,144 (58,796) 65,629
Long-term debt 427,888 134,950 128,801 (351,297) 340,342
Other long-term
liabilities and
deferred credits 6,385 28,398 62,804 (11,822) 85,765
Shareholders' equity:
Common stock 280 1 58,941 (58,942) 280
Additional paid-
in capital 305,901 324,715 545,069 (869,784) 305,901
Retained
earnings 118,672 34,059 65,887 (99,946) 118,672
Treasury stock,
at cost (29,579) - - - (29,579)
-------- -------- -------- ----------- --------
Total
shareholders'
equity 395,274 358,775 669,897 (1,028,672) 395,274
-------- -------- -------- ----------- --------
Total
liabilities
and share-
holders'
equity $868,580 $540,371 $928,646 $(1,450,587) $887,010
======== ======== ======== =========== ========
CONDENSED CONSOLIDATING BALANCE SHEET
June 30, 1999
- -------------------------------------------------------------------------------
Parent Guarantor Non-Guarantor
(In thousands) Company Subsidiaries Subsidiaries Eliminations Consolidated
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Current assets:
Cash and cash
equivalents $ 244 $ 21 $ 1,383 $ - $ 1,648
Receivables, net 19,210 7,792 83,819 (37,542) 73,279
Inventories - 19,629 57,076 219 76,924
Prepaid expenses
and other
current assets 3,994 5 5,901 (2,992) 6,908
-------- -------- -------- ----------- --------
Total current
assets 23,448 27,447 148,179 (40,315) 158,759
Investments in
affiliates 698,210 343,951 59,123 (1,024,264) 77,020
Other assets 110,538 - 223,966 (315,241) 19,263
PP&E, net 13,764 159,274 299,046 - 472,084
Goodwill, net - - 171,762 - 171,762
-------- -------- -------- ----------- --------
Total assets $845,960 $530,672 $902,076 $(1,379,820) $898,888
======== ======== ======== =========== ========
Current liabilities:
Accounts
payable $ 20,417 $ 13,402 $ 69,993 $ (42,877) $ 60,935
Accrued
liabilities 7,355 - 9,177 (3,072) 13,460
-------- -------- -------- ----------- --------
Total current
liabilities 27,772 13,402 79,170 (45,949) 74,395
Long-term debt 385,604 114,653 111,079 (305,479) 305,857
Other long-term
liabilities
and deferred
credits 12,356 26,694 63,267 (3,909) 98,408
Shareholders'
equity:
Common stock 280 1 58,941 (58,942) 280
Additional paid-in
capital 305,901 324,715 544,974 (869,689) 305,901
Retained
earnings 143,626 51,207 44,645 (95,852) 143,626
Treasury stock,
at cost (29,579) - - - (29,579)
-------- -------- -------- ----------- ---------
Total
shareholders'
equity 420,228 375,923 648,560 (1,024,483) 420,228
-------- -------- -------- ----------- ---------
Total
liabilities
and share-
holders'
equity $845,960 $530,672 $902,076 $(1,379,820) $ 898,888
======== ======== ======== =========== =========
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
Nine months ended March 31, 2000
- ------------------------------------------------------------------------------
Parent Guarantor Non-Guarantor
(In thousands) Company Subsidiaries Subsidiaries Eliminations Consolidated
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Cash flows from
operating
activities:
Net (loss)
income $(20,772) $ (17,148) $ 21,415 $ (4,267) $ (20,772)
Reconciliation
of net (loss)
income to net
cash (used in)
provided by
operating
activities:
Net change
in operating
assets and
liabilities 22,484 7,205 (29,009) (17,246) (16,566)
Depreciation,
depletion
and amortiza-
tion 2,866 8,991 23,181 - 35,038
Equity earnings
in unconsol-
idated
affiliates (9,159) (7,656) (10,885) 17,361 (10,339)
Deferred income
taxes and
other (14,514) 506 (211) 3,979 (10,240)
-------- ------- -------- -------- ---------
Net cash (used in)
provided by
operating
activities (19,095) (8,102) 4,491 (173) (22,879)
-------- ------- -------- -------- ---------
Cash flows from
investing
activities:
Purchase of
property,
plant and
equipment (445) (3,961) (11,298) - (15,704)
Other 18 4 8,378 - 8,400
-------- -------- --------- -------- ----------
Net cash used in
investing
activities (427) (3,957) (2,920) - (7,304)
-------- -------- --------- -------- ----------
Cash flows from
financing
activities:
Debt proceeds 294,399 - - - 294,399
Debt payments (259,954) - - - (259,954)
Cash dividend
paid (4,182) - (173) 173 (4,182)
Net change in
affiliate
notes (9,611) 12,055 (2,444) - -
-------- -------- -------- -------- ----------
Net cash provided
by (used in)
financing
activities 20,652 12,055 (2,617) 173 30,263
-------- -------- -------- -------- ----------
Net increase
(decrease) in
cash and cash
equivalents 1,130 (4) (1,046) - 80
Cash and cash
equivalents -
beginning of
period 244 21 1,383 - 1,648
--------- -------- -------- --------- ----------
Cash and cash
equivalents -
end of period $ 1,374 $ 17 $ 337 $ - $ 1,728
========= ======== ======== ========= ==========
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
Nine months ended March 31, 1999
- ------------------------------------------------------------------------------
Parent Guarantor Non-Guarantor
(In thousands) Company Subsidiaries Subsidiaries Eliminations Consolidated
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Cash flows from
operating
activities:
Net (loss)
income $ (2,396) $ (11,556) $ 1,903 $ 9,653 $ (2,396)
Reconciliation
of net (loss)
income to net
cash (used in)
provided by
operating
activities:
Net change
in operating
assets and
liabilities (46,046) (3,881) 1,567 (7,493) (55,853)
Depreciation,
depletion
and amortiz-
ation 2,191 6,615 21,771 645 31,222
Equity earnings
in unconsol-
idated
affiliate (4,202) 12,100 1,126 (7,773) 1,251
Deferred income
taxes and
other 9,113 4,976 (2,909) (1,883) 9,297
------- ------- ------- ------- --------
Net cash (used in)
provided by
operating
activities (41,340) 8,254 23,458 (6,851) (16,479)
------- ------- ------- ------- --------
Cash flows from
investing
activities:
Purchase of
property, plant
and equipment (1,851) (13,157) (18,976) - (33,984)
Investment in
affiliates (10,209) - - 6,851 (3,358)
Collection on note
receivable 54,625 - - - 54,625
Other (2,000) - 1,181 - (819)
------- -------- ------- -------- ---------
Net cash provided by
(used in) investing
activities 40,565 (13,157) (17,795) 6,851 16,464
------- -------- ------- -------- ---------
Cash flows from
financing
activities:
Net change in
affiliate notes (51) 4,903 (4,852) - -
Debt payments (381,652) - - - (381,652)
Debt proceeds 402,250 - - - 402,250
Cash dividend
paid (7,952) - - - (7,952)
Purchase of
treasury stock (14,123) - - - (14,123)
-------- -------- ------- -------- ---------
Net cash (used in)
provided by
financing
activities (1,528) 4,903 (4,852) - (1,477)
-------- -------- ------- -------- ---------
Net (decrease)
increase in cash
and cash
equivalents (2,303) - 811 - (1,492)
Cash and cash
equivalents -
beginning of period 2,616 21 1,220 - 3,857
--------- -------- ------- -------- ---------
Cash and cash
equivalents -
end of period $ 313 $ 21 $ 2,031 $ - $ 2,365
========= ======== ======= ======== =========
</TABLE>
<PAGE>
NOTE 5 - CONTINGENCIES
On August 31, 1995, we filed suit in federal court in Mississippi against
Terra International, Inc. ("Terra"), seeking a declaratory judgment and other
relief, establishing that certain technology relating to the design of an
ammonium nitrate neutralizer which we licensed to Terra is not defective and
was not the cause of an explosion which occurred in 1994 at Terra's Port Neal,
Iowa, fertilizer facility. We are also seeking an unspecified amount of
monetary damages for defamation based on Terra's public statement related to
our alleged role in the explosion. Also, on August 31, 1995, Terra filed suit
in federal court in Iowa against us seeking to recover a total of approximately
$300 million in property damage, lost profits and other out-of-pocket expenses
allegedly caused by the explosion. Terra alleges that the ammonium nitrate
neutralizer technology licensed to Terra was defectively designed by us and
that the design defect caused the Port Neal explosion. It has been
conclusively determined that the Mississippi federal district court is the
proper venue to resolve all issues between the parties related to the Port Neal
explosion. Discovery is nearly complete and a trial date of July 10, 2000,
has been set by the court. We are vigorously contesting this matter and do
not anticipate that its outcome will have a material impact on our financial
position or future earnings.
<PAGE>
Item 2. Management's Discussion and Analysis of Results of Operations and
Financial Condition
Our operations are organized into three strategic business units:
nitrogen, phosphate and potash. Our nitrogen business unit produces nitrogen
products for distribution to fertilizer dealers and distributors, and
industrial users located primarily in the southern region of the United
States. Our phosphate business unit produces DAP and exports the majority of
this production through the Phosphate Chemicals Export Association, Inc., a
Webb-Pomerene corporation known as "PhosChem." Our potash business unit mines
and produces agricultural and industrial potash products for sale to farmers,
fertilizer dealers and distributors, and industries for use primarily in the
southern and western regions of the United States. The following is
management's discussion and analysis of our financial condition and results of
operations, which should be read in conjunction with our audited financial
statements and related notes for the fiscal year ended June 30, 1999.
Consistent with the historical nature of our business, the usage of
fertilizer in our trade territory is highly seasonal, and our quarterly results
reflect the fact that significantly more fertilizer is sold during the last
four months of our fiscal year (March through June). Since interim period
operating results reflect the seasonal nature of our business, they may not
necessarily be indicative of results expected for the full fiscal year. In
addition, quarterly results can vary significantly from year to year due to a
number of factors, including mechanical failures in production facilities,
scheduled maintenance turnarounds, world market conditions of supply and demand
for our products, price of raw materials required to produce our products,
farm commodity prices, and weather-related shifts in planting schedules and
purchase patterns. We incur substantial expenditures for fixed costs
throughout the year and for inventory prior to the spring planting season.
For the current year, we incurred a net loss during the quarter of $5.2
million (or $0.20 per basic and diluted share) compared to a net loss of $6.1
million (or $0.23 per basic and diluted share) for the same quarter during the
prior year. Net sales decreased to $129.7 million for the quarter ended March
31, 2000, from $140.6 million for the quarter ended March 31, 1999. We
incurred an operating loss of $4.2 million for the quarter ended March 31,
2000, compared to an operating loss of $6.0 million for the quarter ended
March 31, 1999. During the quarter, we recorded a $1.3 million pre-tax gain in
other income from the sale of our remaining minority interest in our former
subsidiary, Newsprint South, Inc., which was carried at a zero value on our
balance sheet.
NITROGEN
During the current quarter, our nitrogen margins improved as a result of
a 22% increase in the weighted average sales price for our nitrogen products.
This increase was partially offset by a 15% reduction in nitrogen sales volumes
and a 24% increase in natural gas costs experienced at our domestic production
facilities. Natural gas is the primary raw material in the production of
ammonia, our base nitrogen product that is necessary for the production of our
other nitrogen products (urea, ammonium nitrate, nitrogen solutions and nitric
acid). We attribute the price increase for nitrogen products to the improving
world supply/demand balance. Production curtailments and plant shutdowns early
in our fiscal year have reduced the nitrogen inventories of domestic producers.
On July 23, 1999, the Committee for Fair Ammonium Nitrate Trade
("COFANT"), a coalition of U.S. producers of fertilizer-grade ammonium nitrate
that includes us, filed an antidumping petition under U.S. trade laws
contending that Russian ammonium nitrate importers are injuring the U.S.
ammonium nitrate industry by importing large amounts of fertilizer-grade
ammonium nitrate into the United States at unfairly low prices. The U.S.
Department of Commerce ("Department") issued a preliminary determination on
December 31, 1999, that subjects Russian ammonium nitrate imports to an
effective dumping margin of 264.59% pending final determination of the case.
On April 20, 2000, the Department preliminarily entered into an agreement
with the Russian Federation to suspend the antidumping proceeding against
ammonium nitrate from Russia. The agreement would limit exports of Russian
ammonium nitrate to the United States and would set minimum prices for such
exports. It also includes detailed provisions designed to prevent
circumvention of the export limits and pricing requirements. The preliminary
agreement is subject to comments by the U.S. ammonium nitrate industry and by
other interested parties. If a final agreement is reached, the quantity and
price restrictions would apply to all exports of solid, fertilizer grade
ammonium nitrate from Russia to the United States. A final agreement must be
completed by May 22, 2000. We cannot speculate as to whether the terms of any
final agreement would be the same as those in the preliminary accepted text.
On March 30, 2000, we announced our intent to purchase a 250,000 ton-per-
year granular urea plant in Faustina, Louisiana, from IMC-Agrico Company, a
joint venture partnership between IMC Global, Inc. and Phosphate Resource
Partners Limited Partnership. On April 14, 2000, this transaction was
completed. The parties agreed not to disclose the terms of the transaction;
however, the purchase price was not material to either company.
PHOSPHATE
Lower sales volume and weak product pricing continued to negatively impact
our phosphate business unit. DAP sales prices decreased 26% during the current
quarter as compared to the prior year quarter as the market continued to react
to anticipated new supply in India and Australia. In order to match production
with market conditions, we curtailed our production rates in October, and
continued to do so through our third fiscal quarter. Currently, we are
operating at full capacity, but will continue to monitor market conditions to
determine whether additional production curtailments are advisable. DAP costs
per ton decreased 6% during the current quarter as compared to the prior year
quarter, primarily the result of lower raw material costs for phosphate rock
and sulfur.
POTASH
Our potash business unit experienced a 13% increase in sales volume and a
5% reduction in sales prices during the current quarter as compared to the
prior year quarter. The increase in sales volume was due primarily to an early
spring season caused by unseasonably good weather in our primary market area in
the southwestern United States during the current quarter. Potash costs per
ton decreased 5% in the current quarter as compared to the prior-year quarter,
as a result of lower production costs at our West mine partially offset by
higher production costs at our East mine.
OUTLOOK
We believe that our nitrogen segment will continue to benefit from the
improved supply/demand outlook which should result in nitrogen prices remaining
strong through the end of our fiscal year; however, high natural gas prices in
the spring months will likely continue to offset the positive impact of higher
product prices on our nitrogen margins. Although additional nitrogen capacity
scheduled to come on-line in the summer and fall of this year may temporarily
disrupt the current supply/demand balance, we believe that the growth in
worldwide nitrogen demand will lessen the impact that this new supply will
have on prices. We anticipate that DAP sales prices will continue in the near
term to adversely affect our phosphate segment's financial results. Finally,
we believe that the performance of our potash segment should continue to
improve as a result of further anticipated reductions in production costs.
RESULTS OF OPERATIONS
Our results of operations have historically been influenced by a number
of factors beyond our control, which can significantly alter our operating
results. Fertilizer demand and prices are highly dependent upon a variety of
conditions in the agricultural industry such as grain prices, planted acreage,
projected grain stocks, U.S. Government policies, weather, and changes in
agricultural production methods. Our results of operations can also be
affected by (i) the volatility of natural gas prices, (ii) mechanical
operating difficulties, (iii) the relative value of the U.S. dollar,
(iv) foreign government agricultural policies (in particular, policies of the
Governments of India and China regarding fertilizer imports), (v) capacity
expansions by competitors, (vi) pricing policies of domestic and foreign
competitors (especially Russia), and (vii) the unpredictable nature of
international and local economies.
<TABLE>
Following are summaries of our sales results by product categories:
Three months ended Nine months ended
March 31, March 31,
------------------ -------------------
2000 1999 2000 1999
Net Sales (in thousands): -------- -------- -------- --------
<S> <C> <C> <C> <C>
Nitrogen $ 77,720 $ 74,470 $185,113 $174,253
DAP 22,443 38,329 77,757 96,859
Potash 29,139 27,305 70,255 67,829
Other 358 500 845 1,217
-------- -------- -------- --------
Net Sales $129,660 $140,604 $333,970 $340,158
======== ======== ======== ========
Three months ended Nine months ended
March 31, March 31,
------------------ -------------------
2000 1999 2000 1999
Tons Sold (in thousands): -------- -------- -------- --------
<S> <C> <C> <C> <C>
Nitrogen:
Ammonia 299 202 679 606
Ammonium nitrate 160 289 479 510
Urea 125 198 387 421
Nitrogen solutions 190 212 451 296
Nitric acid 7 14 33 46
------ ------ ------ ------
Total Nitrogen 781 915 2,029 1,879
DAP 175 222 558 554
Potash 328 290 800 735
Three months ended Nine months ended
March 31, March 31,
------------------ -------------------
2000 1999 2000 1999
Average Sales Price Per Ton: -------- -------- -------- --------
Nitrogen $ 99 $ 81 $ 91 $ 93
DAP $ 128 $ 172 $ 139 $ 175
Potash $ 89 $ 94 $ 88 $ 92
NET SALES. Our net sales decreased 8% to $129.7 million for the quarter
ended March 31, 2000, from $140.6 million for the quarter ended March 31, 1999.
This decrease is primarily the result of lower nitrogen sales volumes and lower
DAP sales volumes and prices in the current quarter, partially offset by higher
nitrogen sales prices in the current quarter. For the nine months ended March
31, 2000, net sales decreased 2% to $334.0 million from $340.2 million for the
nine months ended March 31, 1999. This decrease is primarily the result of
lower DAP sales prices in the current year, partially offset by higher sales
volumes for nitrogen and potash products in the current year.
During the current quarter, nitrogen sales increased 4% as compared to the
prior year quarter. This increase was primarily the result of higher sales
prices and volumes for ammonia. Our ammonia sales volume increased 48% in the
current quarter due to having additional tons available for sale. During the
prior year quarter, we produced less tons as a result of our No. 2 ammonia
facility in Donaldsonville, Louisiana, being down 42 days due to a scheduled
maintenance turnaround which was extended to implement improvements in
production capacity, and our Trinidad ammonia plant being down for 34 days in
the prior year quarter to correct operational problems. During the current
quarter, our ammonia sales price increased 43% as compared to the prior year
quarter as a result of continued improvement in the global supply/demand
balance. Our ammonium nitrate sales volume decreased 45% in the current
quarter as compared to the prior year quarter as a result of selling more
product during our second fiscal quarter ahead of the spring season as well
as incurring unfavorable weather conditions in our trade area during the month
of March. Our average sales price for ammonium nitrate increased 23% during
the current quarter. Prices have been positively impacted by the absence of
large volumes of Russian product, which in the prior year was being sold in
the United States at below market prices. During the current quarter, our
urea sales volume decreased 37% as a result of increased product movement in
the first half of the year as well as reduced product availability for urea
melt during the current year due to downtime associated with a scheduled
maintenance turnaround at our Donaldsonville urea production facility during
the month of January. Our urea prices increased 20% during the current quarter
as compared to the prior year quarter. Growth in world markets, such as Latin
America and Asia (excluding China), have tightened the global supply/demand
balance resulting in increased prices compared to prior-year levels. Reduced
Mexican exports also had a positive impact on world urea prices. Our nitrogen
solutions sales volume decreased 10% in the current quarter as compared to the
prior year quarter as a result of increased sales during the first half of the
year as customers purchased product ahead of the spring season rather than
placing it into consignment. Our nitrogen solutions sales prices decreased 9%
during the current quarter as compared to the prior year reflecting soft market
conditions.
During the current nine-month period, nitrogen sales increased 6% as
compared to the prior year nine-month period. This increase was the result of
an 8% increase in nitrogen sales volumes partially offset by a 2% reduction in
nitrogen sales prices. During the current nine-month period, our ammonia sales
volume increased 12% due to increased production levels in the current year.
Our ammonia sales price increased 12% during the current year due to the
continued improvement in the global supply/demand balance. During the current
nine-month period, ammonium nitrate and urea sales volumes decreased 6% and 8%,
respectively. Nitrogen solutions sales volumes increased 52% in the current
nine-month period as a result of customers purchasing product earlier in the
fiscal year. The average selling prices for ammonium nitrate, urea and nitrogen
solutions decreased 1%, 7% and 13%, respectively, from the same prior-year
period.
During the current quarter, DAP sales decreased 41% as compared to the
prior-year quarter due to a 26% reduction in sales prices and a 21% reduction
in sales volumes. For the current nine-month period, DAP sales decreased 20%
as compared to the prior year nine-month period, the result of a 20% reduction
in sales prices partially offset by a 1% increase in sales volume. The decline
in sales prices during the current year periods was the result of anticipated
supply from new plants in India and Australia. During the current quarter,
sales volumes were lower due to weaker export and domestic demand as well as
having less tons available for sale. In order to match production to market
conditions, we curtailed production rates in October 1999, and as a result, we
produced approximately 68,000 tons less during the current year quarter as
compared to the prior year quarter. We are currently operating at full
capacity, but will continue to monitor market conditions to determine whether
additional shutdowns or curtailments are advisable. In addition, in the prior
year nine-month period, we had 18 days of production downtime as well as
approximately 54,000 tons of DAP inventory that was damaged as a result of
Hurricane Georges.
Potash sales increased 7% during the current quarter as compared to the
prior year quarter as a result of a 13% increase in sales volume partially
offset by a 5% reduction in sales prices. Sales volumes increased in the
current quarter as a result of an early spring season caused by unseasonably
good weather in the southwestern United States, our primary marketing area for
potash. For the current nine-month period, potash sales increased 4% as
compared to the prior year nine-month period as a result of a 9% increase in
sales volume partially offset by a 5% reduction in sales prices.
COST OF PRODUCTS SOLD. Our cost of products sold decreased to $125.3
million for the quarter ended March 31, 2000, from $136.0 million for the
quarter ended March 31, 1999. As a percentage of net sales, cost of products
sold was 97% for the current quarter and for the prior-year quarter. During
the current quarter, higher nitrogen sales prices and lower costs per ton for
our DAP and potash products were offset by lower DAP and potash sales prices
and higher costs per ton for all nitrogen products except ammonia. Ammonia
costs per ton decreased 5% during the current quarter primarily as a result
of incurring higher conversion costs in the prior year associated with an
extended turnaround at our No. 2 ammonia plant in Donaldsonville, Louisiana.
Ammonia costs also decreased due to higher equity earnings in the current year
at Farmland MissChem Limited ("Farmland MissChem"), our 50-50 joint venture
ammonia plant in Trinidad. Equity earnings were higher in the current year as
a result of downtime in the prior year to correct operational problems. We
record earnings from the joint venture as a reduction in our cost of products
sold. Our portion of the earnings was $2.0 million for the current quarter.
The above factors supporting lower ammonia costs were partially offset by a
24% increase in natural gas costs at our domestic production facilities in the
current quarter. Urea costs per ton increased 32% in the current quarter as
compared to the prior year quarter as a result of a scheduled urea plant
turnaround in the month of January as well as incurring higher natural gas
costs. DAP costs per ton decreased 6% during the current quarter as compared
to the prior year quarter as a result of lower raw material costs, primarily
for phosphate rock and sulfur. These lower costs were partially offset by
higher conversion costs in the current year that were primarily due to reduced
operating rates. Phosphate rock costs decreased due to the pricing formula in
our phosphate rock supply contract that is based on the phosphate rock costs
incurred by certain other domestic phosphate producers and the financial
performance of our phosphate operations. Potash costs per ton decreased 5%
in the current year quarter as compared to the prior year. This decrease was
primarily the result of increased production at our West mine due to mining a
higher-grade ore, partially offset by higher production costs at our East mine.
For the nine-month period ending March 31, 2000, our cost of products sold
increased to $328.4 million, from $302.7 million for the nine-month period
ending March 31, 1999. As a percentage of net sales, cost of products sold
increased to 98% for the current nine-month period, from 89% for the prior year
nine-month period. Cost of products sold increased as a percentage of net
sales due to lower DAP and potash sales prices and higher costs per ton for our
nitrogen and potash products during the current year. These increases were
partially offset by lower costs per ton for DAP. Our nitrogen costs per ton
increased primarily as a result of higher natural gas costs at our domestic
production facilities in the current year. Natural gas prices increased 18%
during the current year nine-month period as compared to the prior year nine-
month period. These higher gas costs were partially offset by increased
earnings at our joint venture ammonia plant in Trinidad. Our portion of the
earnings from Farmland MissChem was $10.9 million for the current year and
included $3.4 million related to a business interruption claim for downtime
that occurred in March and April of 1999. DAP costs per ton decreased 5%
during the current nine-month period as compared to the prior year nine-month
period. This decrease was primarily the result of lower raw material costs
for phosphate rock and sulfur, partially offset by higher conversion costs in
the current year. Potash costs per ton increased 7% during the current year
nine-month period as compared to the prior year nine-month period. This
increase was the result of higher production costs at our East mine as a
result of incurring costs associated with moving into a new ore zone.
Additionally, the East mine incurred higher natural gas costs in the current
year. The West mine's production costs for the current nine-month period did
not change significantly from the prior-year nine-month period.
SELLING, GENERAL AND ADMINISTRATIVE. Our selling, general and
administrative expenses decreased to $8.4 million for the quarter ended March
31, 2000, from $10.4 million for the quarter ended March 31, 1999. This
decrease was primarily the result of decreased advertising and professional
consultant costs in the current year. As a percentage of net sales, selling,
general and administrative expenses decreased to 6% for the quarter ended March
31, 2000, from 7% for the quarter ended March 31, 1999. For the nine months
ended March 31, 2000, our selling, general and administrative expenses
decreased to $25.3 million, from $28.9 million for the nine months ended
March 31, 1999. This decrease was primarily the result of decreased
advertising cost, use tax, professional consultants and employee incentives
during the current year, partially offset by costs incurred related to the
reorganization of our sales, marketing and distribution division. As a
percentage of net sales, selling, general and administrative expense was 8% for
the nine months ended March 31, 2000, and for the nine months ended
March 31, 1999.
OTHER. Our other operating expenses decreased to $101,000 for the quarter
ended March 31, 2000, from $147,000 for the quarter ended March 31, 1999. This
decrease was the result of reduced idle plant costs in the current year
associated with our Eddy Potash mine that suspended operations in December
1997. For the nine months ended March 31, 2000, our other operating expenses
increased to $2.7 million, from $484,000 for the nine months ended March 31,
1999. This increase was the result of idle plant costs associated with the
curtailment of production in August and September at our No. 2 ammonia plant
in Donaldsonville, Louisiana. Operations were resumed at this plant on
October 4, 1999.
OPERATING (LOSS) INCOME. As a result of the above factors, we incurred an
operating loss of $4.2 million for the quarter ended March 31, 2000, as
compared to an operating loss of $6.0 million for the quarter ended March 31,
1999. For the nine months ended March 31, 2000, we incurred an operating loss
of $22.4 million, as compared to operating income of $8.1 million for the nine
months ended March 31, 1999.
INTEREST. For the quarter ended March 31, 2000, our net interest expense
increased to $7.1 million from $5.3 million for the quarter ended March 31,
1999. For the nine months ended March 31, 2000, our net interest expense
increased to $19.8 million from $13.3 million for the nine months ended March
31, 1999. These increases were partially the result of no interest being
capitalized in the current year. We capitalized $839,000 of interest costs
during the prior year quarter and capitalized $3.9 million of interest costs
during the prior year nine-month period due to the completion of major
construction projects. Higher average debt levels and higher average interest
rates during the current year periods also contributed to increased interest
costs.
OTHER INCOME. For the quarter ended March 31, 2000, other income
increased to $1.7 million from $363,000 for the quarter ended March 31, 1999.
For the nine months ended March 31, 2000, we had other income of $3.0 million
as compared to $344,000 for the nine months ended March 31, 1999. These
increases in other income during the current-year periods were primarily the
result of recognizing a gain on the sale of our remaining minority interest in
our former subsidiary, Newsprint South, Inc., which was carried at zero value
on our balance sheet. During the nine months ended March 31, 2000, we also
had higher earnings at our unconsolidated affiliates.
INCOME TAX BENEFIT. For the quarter ended March 31, 2000, our income tax
benefit was $4.4 million, as compared to an income tax benefit of $4.8 million
for the quarter ended March 31, 1999. For the nine months ended March 31,
2000, our income tax benefit was $18.4 million, as compared to an income tax
benefit of $2.5 million for the nine months ended March 31, 1999. These income
tax benefits are the result of our losses. For the nine months ended March 31,
2000, we also recorded a one-time benefit in the amount of $2.0 million related
to settlement agreements made with the Internal Revenue Service for fiscal
years 1994, 1995 and 1996.
NET LOSS. As a result of the foregoing, we incurred a net loss of $5.2
million for the quarter ended March 31, 2000, as compared to a net loss of $6.1
million for the quarter ended March 31, 1999. For the nine months ended
March 31, 2000, we incurred a net loss of $20.8 million, as compared to a net
loss of $2.4 million for the nine months ended March 31, 1999.
LIQUIDITY AND CAPITAL RESOURCES
At March 31, 2000, we had cash and cash equivalents of $1.7 million,
compared to $1.6 million at June 30, 1999, an increase of approximately
$100,000.
OPERATING ACTIVITIES. For the nine months ended March 31, 2000, our net
cash used in operating activities was $22.9 million compared to $16.5 million
for the nine months ended March 31, 1999.
INVESTING ACTIVITIES. Our net cash used in investing activities was $7.3
million for the nine months ended March 31, 2000, compared to net cash provided
by investing activities of $16.5 million for the nine months ended March 31,
1999. During the prior year, we collected $54.6 million on a note receivable
obtained as a result of a sale of our undeveloped phosphate rock property.
Investing activities for the prior year also included $3.4 million related to
our investment in Farmland MissChem Limited. During the current year, our
capital expenditures were $15.7 million compared to $34.0 million during the
prior year. Our current year expenditures included $4.3 million related to the
completion of our nitrogen expansion project at our Yazoo City facility, and
$11.4 million for normal improvements and modifications to our facilities.
FINANCING ACTIVITIES. Our net cash provided by financing activities was
$30.3 million for the nine months ended March 31, 2000, compared to net cash
used in financing activities of $1.5 million for the nine months ended
March 31, 1999. During the current year, the amounts provided by financing
activities included $294.4 million in debt proceeds. These proceeds were
partially offset by $260.0 million in debt payments and $4.2 million in cash
dividends. During the prior year, the amounts used in financing activities
included $381.7 million in debt payments, $8.0 million in cash dividends and
$14.1 million for the purchase of treasury stock. These uses were partially
offset by $402.3 million in debt proceeds.
In August 1997, we issued $14.5 million in industrial revenue bonds, a
portion of which were tax-exempt, to finance the development of our new
phosphogypsum disposal facility at our Pascagoula, Mississippi, DAP
manufacturing plant. On April 1, 1998, we issued $14.5 million in fully tax-
exempt industrial revenue bonds, the proceeds of which were used to redeem the
initial industrial revenue bonds issued in August 1997. The bonds issued on
April 1, 1998, mature on March 1, 2022, and carry a 5.8% fixed rate. The bonds
may be redeemed at our option at a premium from March 1, 2008, to February 28,
2010, and may be redeemed at face value at any time after February 28, 2010,
through the maturity date.
On November 25, 1997, we issued $200.0 million of 7.25% Senior Notes (the
"Notes") due November 15, 2017. The holders may elect to have the Notes repaid
on November 15, 2007. The Notes were issued under a $300.0 million shelf
registration statement filed with the Securities and Exchange Commission in
November 1997.
We have a secured revolving credit facility (the "Facility") with Harris
Trust and Savings Bank and a syndicate of other commercial banks totaling
$200.0 million. This Facility matures on November 25, 2002, and bears interest
at rates related to the Prime Rate, the London Interbank Offered Rate or
Federal Funds Rate. At March 31, 2000, we had $126.2 million outstanding under
the Facility.
On February 24, 2000, we modified the Facility in a manner that we
believe, when combined with our operating cash flow, will satisfy our
anticipated operating and capital requirements through fiscal 2001 and
significantly reduce the likelihood of future noncompliance with the Facility's
financial covenants. The modification included a change to the financial
covenants that shifts the focus from our cash flow generation (which has been
impaired by the current industry down-cycle) to our balance sheet by replacing
the leverage covenant (which required us to maintain a threshold ratio of cash
flow to total debt) with a debt to capital covenant (which prohibits us from
exceeding a threshold ratio of debt to total capital). In addition, the
interest coverage covenant is significantly less restrictive. Each borrowing
under the Facility is subject to a requirement that the total amount
outstanding under the Facility not exceed a certain asset value calculation.
The modification permits quarterly cash dividends at our current level of $0.03
per common share if we maintain a certain ratio of earnings before interest,
taxes, depreciation, and amortization to interest and prohibits us from
repurchasing our shares outstanding. As part of the modification, the Facility
lenders were granted security interests in substantially all of our assets, as
allowed by the Senior Notes Indenture. The modification increased our
near-term borrowing costs under the Facility by approximately 100 basis
points.
We estimate our capital expenditure requirements for the remainder of
fiscal 2000 to be approximately $9.0 million. The anticipated capital
expenditures are for essential improvements and modifications to our facilities
and for the 250,000 ton-per-year granular urea plant in Faustina, Louisiana,
purchased on April 14, 2000.
In authorizations granted in May 1995, March 1996, and September 1998,
our board of directors authorized the purchase of up to 8,000,000 shares of
our common stock in the open market, in privately negotiated
transactions or otherwise at prices and at times determined by us to be
appropriate. As of October 31, 1998, we had repurchased a total of
3,700,009 shares pursuant to those authorizations. No shares have been
repurchased since that date.
FORWARD-LOOKING STATEMENTS
Except for the historical statements and discussion contained herein,
statements set forth in this report constitute "forward-looking statements."
Since these forward-looking statements rely on a number of assumptions
concerning future events, risks and other uncertainties that are beyond our
ability to control, readers are cautioned that actual results may differ
materially from such forward-looking statements. Future events, risks and
uncertainties that could cause a material difference in such results, include,
but are not limited to, (i) the relative unpredictability of international and
local economic conditions, (ii) changes in matters which affect the supply and
demand of fertilizer products, (iii) weather, (iv) the volatility of the
natural gas market, (v) environmental regulation, (vi) price competition from
both domestic and international competitors, (vii) possible unscheduled plant
outages and other operating difficulties, and (viii) other important factors
affecting the fertilizer industry and us as detailed under "Outlook and
Uncertainties" and elsewhere in our most recent annual report on Form 10-K
which is on file with the Securities and Exchange Commission.
Item 3. Quantitative and Qualitative Disclosure about Market Risk.
We are exposed to market risk, including changes in interest rates and
natural gas prices. To manage the risks related to these exposures, we enter
into derivative transactions. We do not hold or issue derivative financial
instruments for trading purposes. We maintain formal policies with respect to
entering into and monitoring derivative transactions. The derivative
transactions are intended to hedge our future natural gas and interest costs.
For more information about how we manage specific risk exposures, see Note 14 -
Hedging Activities, and Note 7 - Credit Agreements and Long-Term Debt, in our
Notes to Consolidated Financial Statements contained in our Annual Report for
the fiscal year ended June 30, 1999.
At June 30, 1999, we estimated the fair value of our fixed rate Senior
Notes using an interest rate equal to 2% above the effective yield on U.S.
Treasury Notes with similar maturities. Based on current market quotes for
securities similar to the Senior Notes, we now believe the fair value of our
fixed rate Senior Notes is lower than the fair value estimated at June 30,
1999. At March 31, 2000, the fair value of our obligation related to our
interest rate swap agreements had decreased from the fair value we estimated
at June 30, 1999, due to the swap agreements approaching maturity in
May 2000.
We use natural gas futures contracts to reduce the impact of changes in
natural gas prices. We prepared a sensitivity analysis to estimate our market
risk exposure arising from these instruments. The fair value of open contracts
was calculated by valuing each position using quoted market prices. Market
risk is the potential loss in fair value as a result of a 10% adverse change
in market prices. We estimate that this adverse change in prices would have
reduced the fair value of open contracts by $1.3 million at March 31, 2000.
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits filed as part of this report are listed below.
Certain exhibits have been filed previously with the Commission and are
incorporated herein by reference.
SEC Exhibit
Reference No. Description
Exhibit Index to Form 10-Q
2.1 Asset Purchase Agreement, dated as of May 21,
1996, by and among the Company, Mississippi
Aquisition I, Inc., Mississippi Acquisition II,
Inc., Eddy Potash, Inc., and New Mexico Potash
Corporation; filed as Exhibit 2.1 to the
Company's Current Report on Form 8-K filed
September 3, 1996, SEC File No. 0-20411, and
incorporated herein by reference.
2.2 Agreement and Plan of Merger and Reorganization,
dated as of August 27, 1996, by and among the
Company, MISS SUB, INC., and First Mississippi
Corporation; filed as Exhibit 2.2 to the
Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1996, SEC File
No. 0-20411, and incorporated herein by
reference.
3.1 Articles of Incorporation of the Company; filed
as Exhibit 3.1 to the Company's Amendment No. 1
to Form S-1 Registration Statement filed
August 2, 1994, SEC File No. 33-53119, and
incorporated herein by reference.
3.2 Bylaws of the Company; filed as Exhibit 3.2 to
the Company's Annual Report on Form 10-K for
the fiscal year ended June 30, 1997, SEC
File No. 0-20411, and incorporated herein by
reference.
4.1 Shareholder Rights Plan; filed as Exhibit 1 to
the Company's Form 8-A Registration Statement
dated August 15, 1994, SEC File No. 2-7803,
and incorporated herein by reference.
4.2 Indenture dated as of November 25, 1997, between
the Company and Harris Trust and Savings Bank, as
Trustee, for the issuance of up to $300 million
of debt securities; filed as Exhibit 4(a) to the
Company's Current Report on Form 8-K filed
November 25, 1997, SEC File No. 001-12217, and
incorporated herein by reference.
4.3 Indenture of Trust dated as of March 1, 1998,
between Mississippi Business Finance Corporation
and Deposit Guaranty National Bank, for the
issuance of bonds in the aggregate principal
amount of $14.5 million to assist the Company
in financing and refinancing the cost of
construction and equipping of solid waste
disposal facilities at its Pascagoula,
Mississippi, facility; filed as Exhibit 4.3 to
the Company's Annual Report on Form 10-K for
the fiscal year ended June 30, 1998, SEC File
No. 0-20411, and incorporated herein by
reference.
10.1 Agreement made and entered into as of September
15, 1991, between Office Cherifien des Phosphates
and the Company for the sale and purchase of
phosphate rock; filed as Exhibit 10.1 to the
Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1991, File No. 2-7803,
and incorporated herein by reference.
10.2 Amendment No. 1, effective as of July 1, 1992, to
the Agreement effective as of September 15, 1991,
between Office Cherifien des Phosphates and the
Company for the sale and purchase of phosphate
rock; filed as Exhibit 10.12 to the Company's
Annual Report on Form 10-K for the fiscal year
ended June 30, 1995, SEC File No. 2-7803, and
incorporated herein by reference.1
10.3 Amendment No. 2, effective as of July 1, 1993, to
the Agreement effective as of September 15, 1991,
between Office Cherifien des Phosphates and the
Company for the sale and purchase of phosphate
rock; filed as Exhibit 10.11 to the Company's
Annual Report on Form 10-K for the fiscal year
ended June 30, 1995, SEC File No. 2-7803, and
incorporated herein by reference.2
10.4 Amendment No. 3, effective as of January 1, 1995,
to the Agreement effective as of September 15,
1991, between Office Cherifien des Phosphates
and the Company for the sale and purchase of
phosphate rock; filed as Exhibit 10.10 to the
Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1995, SEC File
No. 2-7803, and incorporated herein by
reference.3
10.5 Amendment No. 4, effective as of January 1, 1997,
to the Agreement effective as of September 15,
1991, between Office Cherifien des Phosphates
and the Company for the sale and purchase of
phosphate rock; filed as Exhibit 10.8 to the
Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1997, SEC File
No. 0-20411, and incorporated herein by
reference.
10.6 Credit Agreement dated as of November 25, 1997,
among the Company; the Lenders Party Thereto;
Harris Trust and Savings Bank, as Administrative
Agent; Bank of Montreal, Chicago Branch, as
Syndication Agent; and Credit Agricole Indosuez,
as Co-Agent, establishing the Company's $200
million revolving line of credit; filed as
Exhibit 10.6 to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30,
1998, SEC File No. 0-20411, and incorporated
herein by reference.
<FN>
_____________________
1Pursuant to the Securities Exchange Act of 1934, Rule 24b-2, confidential
business information has been deleted from the first and second paragraphs of
paragraph numbered 1 of Amendment No. 1, and an application for confidential
treatment has been filed separately with the Commission.
2Pursuant to the Securities Exchange Act of 1934, Rule 24b-2, confidential
business information has been deleted from paragraphs numbered 5 and 8 of
Amendment No. 2; from the first paragraph, paragraph numbered 1, paragraph
numbered 2, and paragraph numbered 3 of Schedule 1, Exhibit A; from Schedule 2,
Exhibit B; from Schedule 3, Exhibit C, and from Schedule 4, Exhibit D; and an
application for confidential treatment has been filed separately with the
Commission.
3Pursuant to the Securities Exchange Act of 1934, Rule 24b-2, confidential
business information has been deleted from Schedule 1 to Amendment No. 3,
Exhibit B, and an application for confidential treatment has been filed
separately with the Commission.
10.7 First Amendment, effective as of June 10, 1999,
to Credit Agreement dated as of November 25,
1997, among the Company; the Lenders Party
Thereto; Harris Trust and Savings Bank, as
Administrative Agent; Bank of Montreal,
Chicago Branch, as Syndication Agent; and
Credit Agricole Indosuez, as Co-Agent,
establishing the Company's $200 million
revolving line of credit; filed as Exhibit 10.7
to the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1999, SEC
File No. 0-20411, and incorporated herein by
reference.
10.8 Second Amendment, effective as of September 17,
1999, to Credit Agreement dated as of
November 25, 1997, among the Company; the
Lenders Party Thereto; Harris Trust and Savings
Bank, as Administrative Agent; Bank of Montreal,
Chicago Branch, as Syndication Agent; and Credit
Agricole Indosuez, as Co-Agent, establishing
the Company's $200 million revolving line of
credit; filed as Exhibit 10 to the Company's
Form 10-Q for the quarter ended September 30,
1999, SEC File No. 001-12217, and incorporated
herein by reference.
10.9 Third Amendment, effective as of February 24,
2000, to Credit Agreement dated as of
November 25, 1997, among the Company; the
Lenders Party Thereto; Harris Trust and
Savings Bank, as Administrative Agent; Bank of
Montreal, Chicago Branch, as Syndication Agent;
and Credit Agricole Indosuez, as Co-Agent,
establishing the Company's $200 million revolving
line of credit; as referenced in this Form 10-Q
for the quarter ending March 31, 2000.
10.10 Form of Severance Agreement dated July 29, 1996,
by and between the Company and each of its
Executive Officers; filed as Exhibit 10.14 to
the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1996, SEC Filing
No. 2-7803, and incorporated herein by reference.
10.11 Mississippi Chemical Corporation Officer and Key
Employee Incentive Plan; filed as Exhibit 10.8 to
the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1998, SEC File
No. 0-20411, and incorporated herein by
reference.
10.12 Mississippi Chemical Corporation Executive
Deferred Compensation Plan, as amended and
restated as of January 1, 2000; filed as
Exhibit 10.2 to the Company's Quarterly Report
on Form 10-Q for the quarter ended
December 31, 1999, SEC File No. 001-12217, and
incorporated herein by reference.
10.13 Mississippi Chemical Corporation Nonemployee
Directors' Deferred Compensation Plan; filed as
Exhibit 10.10 to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30,
1998, SEC File No. 0-20411, and incorporated
herein by reference.
10.14 Mississippi Chemical Corporation Supplemental
Benefit Plan, as amended and restated as of
July 1, 1996; filed as Exhibit 10.11 to the
Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1998, SEC File
No. 0-20411, and incorporated herein by
reference.
10.15 Mississippi Chemical Corporation 1994 Stock
Incentive Plan, as amended and restated as of
July 22, 1999; filed as Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q filed
February 11, 2000, SEC File No. 001-12217, and
incorporated herein by reference.
10.16 Mississippi Chemical Corporation 1995 Stock
Option Plan for Nonemployee Directors; filed
as Exhibit 4.3 to the Company's Form S-8
Registration Statement filed December 21, 1995,
SEC File No. 33-65209, and incorporated herein
by reference.
10.17 Mississippi Chemical Corporation 1995 Restricted
Stock Purchase Plan for Nonemployee Directors;
filed as Exhibit 4.4 to the Company's Form S-8
Registration Statement filed December 21, 1995,
SEC File No. 33-65209, and incorporated herein
by reference.
27 Financial Data Schedule.
(b) No reports on Form 8-K have been filed during the quarter for which
this report is filed.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MISSISSIPPI CHEMICAL CORPORATION
Date: May 11, 2000 /s/ Timothy A. Dawson
------------ --------------------------------
Timothy A. Dawson
Senior Vice President and Chief Financial
Officer
Date: May 11, 2000 /s/ Rosalyn B. Glascoe
------------ --------------------------------
Rosalyn B. Glascoe
Corporate Secretary
<PAGE>
MISSISSIPPI CHEMICAL CORPORATION
EXHIBIT INDEX
TO
FORM 10-Q
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
2.1 Asset Purchase Agreement, dated as of May 21, 1996, by and
among the Company, Mississippi Acquisition I, Inc.,
Mississippi Acquisition II, Inc., Eddy Potash, Inc., and
New Mexico Potash Corporation; filed as Exhibit 2.1 to the
Company's Current Report on Form 8-K filed September 3,
1996, SEC File No. 0-20411, and incorporated herein by
reference.
2.2 Agreement and Plan of Merger and Reorganization, dated as
of August 27, 1996, by and among the Company, MISS SUB,
INC., and First Mississippi Corporation; filed as
Exhibit 2.2 to the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1996, SEC File
No. 0-20411, and incorporated herein by reference.
3.1 Articles of Incorporation of the Company; filed as
Exhibit 3.1 to the Company's Amendment No. 1 to Form S-1
Registration Statement filed August 2, 1994, SEC File
No. 33-53119, and incorporated herein by reference.
3.2 Bylaws of the Company; filed as Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1997, SEC File No. 0-20411, and
incorporated herein by reference.
4.1 Shareholder Rights Plan; filed as Exhibit 1 to the
Company's Form 8-A Registration Statement dated August 15,
1994, SEC File No. 2-7803, and incorporated herein by
reference.
4.2 Indenture dated as of November 25, 1997, between the
Company and Harris Trust and Savings Bank, as Trustee, for
the issuance of up to $300 million of debt securities;
filed as Exhibit 4(a) to the Company's Current Report on
Form 8-K filed November 25, 1997, SEC File No. 001-12217,
and incorporated herein by reference.
4.3 Indenture of Trust dated as of March 1, 1998, between
Mississippi Business Finance Corporation and Deposit
Guaranty National Bank, for the issuance of bonds in the
aggregate principal amount of $14.5 million to assist the
Company in financing and refinancing the cost of
construction and equipping of solid waste disposal
facilities at its Pascagoula, Mississippi, facility; filed
as Exhibit 4.3 to the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1998, SEC File
No. 0-20411, and incorporated herein by reference.
10.1 Agreement made and entered into as of September 15, 1991,
between Office Cherifien des Phosphates and the Company
for the sale and purchase of phosphate rock; filed as
Exhibit 10.1 to the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1991, File No. 2-7803,
and incorporated herein by reference.
10.2 Amendment No. 1, effective as of July 1, 1992, to the
Agreement effective as of September 15, 1991, between
Office Cherifien des Phosphates and the Company for the
sale and purchase of phosphate rock; filed as
Exhibit 10.12 to the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1995, SEC File
No. 2-7803, and incorporated herein by reference.1
10.3 Amendment No. 2, effective as of July 1, 1993, to the
Agreement effective as of September 15, 1991, between
Office Cherifien des Phosphates and the Company for the
sale and purchase of phosphate rock; filed as Exhibit
10.11 to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1995, SEC File No. 2-7803, and
incorporated herein by reference.2
10.4 Amendment No. 3, effective as of January 1, 1995, to the
Agreement effective as of September 15, 1991, between
Office Cherifien des Phosphates and the Company for the
sale and purchase of phosphate rock; filed as
Exhibit 10.10 to the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1995, SEC File
No. 2-7803, and incorporated herein by reference.3
<FN>
1 Pursuant to the Securities Exchange Act of 1934, Rule 24b-2,
confidential business information has been deleted from the first and second
paragraphs of paragraph numbered 1 of Amendment No. 1, and an application for
confidential treatment has been filed separately with the Commission.
2 Pursuant to the Securities Exchange Act of 1934, Rule 24b-2,
confidential business information has been deleted from paragraphs numbered 5
and 8 of Amendment No. 2; from the first paragraph, paragraph numbered 1,
paragraph numbered 2, and paragraph numbered 3 of Schedule 1, Exhibit A;
from Schedule 2, Exhibit B; from Schedule 3, Exhibit C, and from Schedule 4,
Exhibit D; and an application for confidential treatment has been filed
separately with the Commission.
3 Pursuant to the Securities Exchange Act of 1934, Rule 24b-2,
confidential business information has been deleted from Schedule 1 to
Amendment No. 3, Exhibit B, and an application for confidential treatment has
been filed separately with the Commission.
</FN>
<PAGE>
10.5 Amendment No. 4, effective as of January 1, 1997, to the
Agreement effective as of September 15, 1991, between
Office Cherifien des Phosphates and the Company for the
sale and purchase of phosphate rock; filed as Exhibit 10.8
to the Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1997, SEC File No. 0-20411, and
incorporated herein by reference.
10.6 Credit Agreement dated as of November 25, 1997, among the
Company; the Lenders Party Thereto; Harris Trust and
Savings Bank, as Administrative Agent; Bank of Montreal,
Chicago Branch, as Syndication Agent; and Credit Agricole
Indosuez, as Co-Agent, establishing the Company's $200
million revolving line of credit; filed as Exhibit 10.6 to
the Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1998, SEC File No. 0-20411, and
incorporated herein by reference.
10.7 First Amendment, effective as of June 10, 1999, to Credit
Agreement dated as of November 25, 1997, among the
Company; the Lenders Party Thereto; Harris Trust and
Savings Bank, as Administrative Agent; Bank of Montreal,
Chicago Branch, as Syndication Agent; and Credit Agricole
Indosuez, as Co-Agent, establishing the Company's $200
million revolving line of credit; filed as Exhibit 10.7 to
the Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1999, SEC File No. 0-20411, and
incorporated herein by reference.
10.8 Second Amendment, effective as of September 17, 1999, to
Credit Agreement dated as of November 25, 1997, among the
Company; the Lenders Party Thereto; Harris Trust and
Savings Bank, as Administrative Agent; Bank of Montreal,
Chicago Branch, as Syndication Agent; and Credit Agricole
Indosuez, as Co-Agent, establishing the Company's $200
million revolving line of credit; filed as Exhibit 10 to
the Company's Form 10-Q for the quarter ended September
30, 1999, SEC File No. 001-12217, and incorporated herein by
reference.
10.9 Third Amendment, effective as of February 24, 2000, to
Credit Agreement dated as of November 25, 1997, among the
Company; the Lenders Party Thereto; Harris Trust and
Savings Bank, as Administrative Agent; Bank of Montreal,
Chicago Branch, as Syndication Agent; and Credit Agricole
Indosuez, as Co-Agent, establishing the Company's $200
million revolving line of credit; as referenced in this
Form 10-Q for the quarter ending March 31, 2000.
10.10 Form of Severance Agreement dated July 29, 1996, by and
between the Company and each of its Executive Officers;
filed as Exhibit 10.14 to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1996, SEC
File No. 2-7803, and incorporated herein by reference.
10.11 Mississippi Chemical Corporation Officer and Key Employee
Incentive Plan; filed as Exhibit 10.8 to the Company's
Annual Report on Form 10-K for the fiscal year ended
June 30, 1998, SEC File No. 0-20411, and incorporated
herein by reference.
10.12 Mississippi Chemical Corporation Executive Deferred
Compensation Plan; filed as Exhibit 10.9 to the Company's
Annual Report on Form 10-K for the fiscal year ended June
30, 1998, SEC File No. 0-20411, and incorporated herein by
reference.
10.13 Mississippi Chemical Corporation Nonemployee Directors'
Deferred Compensation Plan; filed as Exhibit 10.10 to the
Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1998, SEC File No. 0-20411, and
incorporated herein by reference.
10.14 Mississippi Chemical Corporation Supplemental Benefit
Plan, as amended and restated as of July 1, 1996; filed as
Exhibit 10.11 to the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1998, SEC File No. 0-
20411, and incorporated herein by reference.
10.15 Mississippi Chemical Corporation 1994 Stock Incentive
Plan; filed as Exhibit 4.2 to the Company's Form S-8
Registration Statement filed December 21, 1995, SEC File
No. 33-65209, and incorporated herein by reference.
10.16 Mississippi Chemical Corporation 1995 Stock Option Plan
for Nonemployee Directors; filed as Exhibit 4.3 to the
Company's Form S-8 Registration Statement filed
December 21, 1995, SEC File No. 33-65209, and incorporated
herein by reference.
10.17 Mississippi Chemical Corporation 1995 Restricted Stock
Purchase Plan for Nonemployee Directors; filed as Exhibit
4.4 to the Company's Form S-8 Registration Statement filed
December 21, 1995, SEC File No. 33-65209, and incorporated
herein by reference.
27 Financial Data Schedule.
<PAGE>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains year-to-date summary financial information extracted from
Mississippi Chemical Corporation fiscal 2000 third quarter Form 10-Q and is
qualified in its entirety by reference to such Form 10-Q filing.
</LEGEND>
<CIK> 0000066895
<NAME> MISSISSIPPI CHEMICAL CORPORATION
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUN-30-2000
<PERIOD-END> MAR-31-2000
<CASH> 1,728
<SECURITIES> 0
<RECEIVABLES> 56,147
<ALLOWANCES> 1,997
<INVENTORY> 84,998
<CURRENT-ASSETS> 166,662
<PP&E> 845,457
<DEPRECIATION> 392,048
<TOTAL-ASSETS> 887,010
<CURRENT-LIABILITIES> 65,629
<BONDS> 214,500
0
0
<COMMON> 280
<OTHER-SE> 394,994
<TOTAL-LIABILITY-AND-EQUITY> 887,010
<SALES> 333,970
<TOTAL-REVENUES> 333,970
<CGS> 328,359
<TOTAL-COSTS> 356,355
<OTHER-EXPENSES> (2,906)
<LOSS-PROVISION> (46)
<INTEREST-EXPENSE> 19,754
<INCOME-PRETAX> (39,187)
<INCOME-TAX> (18,415)
<INCOME-CONTINUING> (20,772)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (20,772)
<EPS-BASIC> (0.79)
<EPS-DILUTED> (0.79)
</TABLE>
MISSISSIPPI CHEMICAL CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
Harris Trust and Savings Bank,
individually and as Administrative Agent
Chicago, Illinois
The From Time to Time Lenders Party
to the Credit Agreement described below
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of
November 25, 1997, as amended (the "Credit Agreement"), by and among the
undersigned, Mississippi Chemical Corporation, a Mississippi corporation (the
"Borrower"), and Harris Trust and Savings Bank, individually and in its
capacity as administrative agent thereunder, Bank of Montreal, Chicago Branch,
in its capacity as syndication agent thereunder, and Credit Agricole Indosuez
(formerly known as Caisse Nationale de Credit Agricole) in its capacity as
co-agent thereunder, and you (all of said banks except Bank of Montreal,
including Harris Trust and Savings Bank in its individual capacity, being
referred to collectively as the "Banks" and individually as a "Bank", and said
Harris Trust and Savings Bank as administrative agent for the Banks under the
Credit Agreement being hereinafter referred to in such capacity as the
"Administrative Agent"). All defined terms used herein shall have the same
meaning as in the Credit Agreement unless otherwise defined herein.
The Borrower, the Administrative Agent and the Banks wish to amend the
Credit Agreement to provide for securing the Borrower's obligations to the
Banks under the Loan Documents, to amend certain financial covenants and to
amend certain other provisions of the Credit Agreement, all on the terms and
conditions of this Amendment.
SECTION 1. AMENDMENTS.
Upon the satisfaction of all of the conditions precedent set forth in
Section 2 of this Amendment the Credit Agreement shall be amended as follows:
1.1. The second sentence of Section 1.1(a) of the Credit Agreement shall
be amended to read as follows:
"The aggregate principal amount of all Loans (as hereinafter defined) plus
the maximum amount available for drawing under all L/Cs and the aggregate
principal amount of all unpaid Reimbursement Obligations (as hereinafter
defined) at any time outstanding (collectively the "Revolving Credit
Obligations") may not exceed the lesser of the Borrowing Base, as most recently
computed, and the sum of the Revolving Credit Commitments (as hereinafter
defined) at any time."
1.2. Section 1.1 of the Credit Agreement shall be amended by adding the
following provision thereto as subsection (e):
"(e) Notwithstanding any provision of this Agreement to the contrary,
on the Third Amendment Closing Date, all Loans outstanding hereunder shall
be classified as either tranche "A" loans (individually an "A Loan" and
collectively the "A Loans") or tranche "B" loans (individually a "B Loan" and
collectively the "B Loans"), and the Loans held by each of the Banks on the
Third Amendment Closing Date shall also be classified as A Loans and B Loans
ratably in accordance with the respective outstanding principal amounts of the
total A Loans and B Loans on the Third Amendment Closing Date. The B Loans
shall consist of Revolving Credit Loans in an aggregate outstanding principal
amount on the Third Amendment Closing Date of $105,000,000 as the same may be
repaid and reborrowed pursuant to the terms of this Agreement, including
without limitation any Bid Loans the proceeds of which are used to repay any
such Revolving Credit Loans. The A Loans shall consist of all other Revolving
Credit Loans and Bid Loans and all Swingline Loans, as the same may be repaid
and reborrowed pursuant to the terms of this Agreement. All Loans, whether A
Loans or B Loans, shall continue to be evidenced by the Notes. The
Administrative Agent shall record on its books and records the original
principal amount of the A Loans and B Loans held by each of the Banks, all
principal repayments made thereon and all reborrowings thereof, and the record
thereof on the Administrative Agent's records shall be conclusive and binding
on the Borrower and the Banks absent manifest error."
1.3. Section 1.2(a) of the Credit Agreement shall be amended to read as
follows:
"Section 1.2. Swingline Loans under the Revolving Credit. (a) Swingline
Commitment. Subject to the terms and conditions hereof and in reliance on the
obligations of the Banks to Harris under this Section 1.2, Harris agrees to
advance one or more swingline loans (each a "Swingline Loan") to the Borrower
from time to time before the Termination Date on a revolving basis up to
$25,000,000 in aggregate principal amount at any time outstanding; provided
that Harris shall have no obligation to advance any Swingline Loan if the Total
Outstandings would thereby exceed the lesser of the Borrowing Base, as most
recently computed, and the sum of the Revolving Credit Commitments then in
effect. All Swingline Loans will be Fed Funds Rate Loans or Offered Rate Loans
or, at the Borrower's option, may bear interest at a rate per annum (computed
on the basis of a year of 365/366 days and actual days elapsed) equal to the
Base Rate from time to time in effect, payable monthly in arrears on the last
day of each calendar month, commencing on the first of such dates occurring
after the date hereof and at maturity (whether by acceleration, upon prepayment
or otherwise). Swingline Loans may be repaid and their principal amount
reborrowed before the Termination Date, subject to the terms and conditions
hereof. Each Swingline Loan that is an Offered Rate Loan or Fed Funds Rate
Loan shall have a maturity of up to the seventh day after such Swingline Loan
was made, and Swingline Loans that bear interest at the Base Rate shall mature
on the Termination Date. No more than 5 Swingline Loans may be outstanding
at any time.
The Borrower may elect that each Swingline Loan shall bear interest
(computed on the basis of a year of 365/366 days and actual days elapsed) on
the unpaid principal amount thereof from the date such Swingline Loan is made
until the last day of the Interest Period applicable thereto at the rate per
annum quoted to the Borrower by Harris for the Interest Period applicable
thereto, billable on the last day of each month (each such Swingline Loan is
hereinafter referred to as an "Offered Rate Loan"); provided, however, that
the Borrower understands and agrees that Harris has no obligation to quote
rates or to make any such Offered Rate Loan and may refuse to make any such
Offered Rate Loan after receiving a request therefor from the Borrower. The
Borrower acknowledges and agrees that the interest rate quoted by Harris for
any Offered Rate Loan may not be the best or lowest rate offered to other
customers of Harris and may not be the same rate offered to other customers
of Harris for loans of similar amounts and maturities, but is the rate at
which Harris in its sole and exclusive discretion is willing to make such
Loan to the Borrower for the specified amount and maturity."
1.4. The second sentence of Section 1.7(a) of the Credit Agreement shall
be amended to read as follows:
"Each such notice shall be irrevocable and shall specify the date of the
Borrowing requested (which shall be a Business Day), the amount of such
Borrowing, whether the Borrowing is to be of A Loans or B Loans, whether the
Borrowing is to be made available by means of Base Rate Loans or Eurodollar
Loans and, with respect to a Borrowing of Eurodollar Loans, the Interest Period
applicable thereto; provided, that in no event shall the principal amount of
any requested Revolving Credit Loan plus the aggregate principal or face
amount, as appropriate, of all Loans, L/Cs, and unpaid Reimbursement
Obligations outstanding hereunder exceed the lesser of the Borrowing Base, as
most recently computed, and the Revolving Credit Commitments as such amounts
may be reduced pursuant to Section 3.5 of this Agreement; provided further,
that in connection with each requested Borrowing of B Loans the Borrower shall
deliver to the Administrative Agent a calculation of the Borrower's
Consolidated Net Tangible Assets in the form of Exhibit Z hereto showing that
after giving effect to such requested Borrowing of B Loans the aggregate
principal amount of all outstanding B Loans shall not exceed the difference
between (x) 15% of the Borrower's Consolidated Net Tangible Assets as of the
date of such request and (y) the B Loan Availability Reserve."
1.5. Section 2.1 of the Credit Agreement shall be amended by adding the
following sentence at the end thereof:
"Notwithstanding the foregoing the Borrower may not request or obtain Bid
Loans under this Agreement at any time that this Agreement limits the aggregate
amount of credit that may be outstanding hereunder by reference to the
Borrowing Base."
1.6. Sections 3.4(d) and (e) of the Credit Agreement shall be amended to
read as follows:
"(d) Mandatory Prepayments-Borrowing Base. If at any time the
Total Outstandings hereunder shall exceed the lesser of the Revolving
Credit Commitments and the Borrowing Base as most recently computed, the
Borrower shall immediately prepay Loans and Reimbursement Obligations
outstanding for the Borrower's account and, if necessary, pledge cash
collateral to the Administrative Agent to secure outstanding L/Cs
issued for the Borrower's account, in an amount equal to such excess.
(e) Allocation of Prepayments. All principal prepayments of
Loans made pursuant to subsections (a), (c) and (d) of this Section 3.4
shall be applied first to the payment of A Loans and Reimbursement
Obligations then outstanding and, if required by subsection (d) above,
to be held as cash collateral by the Administrative Agent to secure
outstanding L/Cs issued for the Borrower's account, until all A Loans and
Reimbursement Obligations have been paid and all cash collateral held by
the Administrative Agent shall equal the aggregate amount available to be
drawn under all L/Cs then outstanding, and second to the payment of the B
Loans then outstanding."
1.7. Section 3.6 of the Credit Agreement shall be amended to read as
follows:
"Section 3.6. Place and Application of Payments. (a) General. All
payments by the Borrower hereunder shall be made to the Administrative Agent at
its office at 111 West Monroe Street, Chicago, Illinois 60690 and in immediately
available funds, prior to 12:00 noon on the date of such payment. All such
payments shall be made without setoff or counterclaim and without reduction for,
and free from, any and all present and future levies, imposts, duties, fees,
charges, deductions withholdings, restrictions or conditions of any nature
imposed by any government or any political subdivision or taxing authority
thereof. Any payments received after 12:00 noon Chicago time (or after any
later time the Banks may otherwise direct) shall be deemed received upon the
following Business Day. Except as herein provided, all payments shall be
received by the Administrative Agent for the ratable account of the holders
of the Loans and shall be promptly distributed by the Administrative Agent
ratably to the holders of the Loans. Unless the Borrower directs otherwise
or this Agreement provides otherwise, principal payments on the Loans of any
Class (including payments made by virtue of the application of proceeds of
Collateral under this Section 3.6) shall be first applied to the Base Rate
Loans of such Class until payment in full thereof, with any balance applied to
the Eurodollar Loans of such Class in the order in which their Interest Periods
expire. All payments and collections received in respect of the Obligations
of any Class and all proceeds of Collateral of any Class received, in each
instance, by the Administrative Agent or any of the Banks, shall be remitted
to the Administrative Agent and as and to the extent provided in this Section
3, applied by the Administrative Agent to the Obligations of such Class then
due and payable, with any balance of such proceeds not applied to the
Obligations of such Class to be held by the Administrative Agent as security
for the Obligations of such Class, provided that if no Obligations of such
Class are outstanding the Administrative Agent shall release such proceeds
to the Borrower. All payments (whether voluntary or required) shall be
accompanied by any amount due the Banks under Section 9.4 hereof, but no
acceptance of such a payment without requiring payment of amounts due under
Section 9.4 shall preclude a later demand by the Banks for any amount
due them under Section 9.4 in respect of such payment. Notwithstanding the
foregoing, if and so long as no Potential Default or Event of Default has
occurred and is continuing, if and to the extent a mandatory prepayment
required by Section 3.4(d) hereof would otherwise be applied against any
Eurodollar Loan of any Class, the Borrower may direct that such prepayment be
held in a cash collateral account maintained by the Borrower with the
Administrative Agent pursuant to agreements in form, scope and substance
reasonably satisfactory to the Administrative Agent (each such account being
referred to as a "Cash Collateral Account") and not applied to any Eurodollar
Loans until the earlier of (i) the last day of the Interest Period then
applicable to such Eurodollar Loan or (ii) the occurrence of any Potential
Default or Event of Default. The Borrower shall establish a Cash Collateral
Account for each Class of Obligations and only payments, collections or
proceeds of Collateral of such Class shall be held in each Cash Collateral
Account. The Borrower hereby grants a lien on each Cash Collateral Account
and all earnings thereon as collateral security for the Obligations of the
relevant Class, it being understood and agreed that at such time as any
Potential Default or Event of Default shall occur, the balance of each Cash
Collateral Account and earnings thereon may be applied by the Administrative
Agent to the Obligations of the relevant Class as provided in this Agreement.
The Borrower hereby authorizes the Administrative Agent to automatically debit
its designated account with Harris for any principal, interest and fees when
due on the Loans or under any L/C Agreements or this Agreement and to transfer
the amount so debited from such account to the Administrative Agent for
application as herein provided.
(b) Application of A Collateral Proceeds Before Default. Prior
to the occurrence of an Event of Default, all proceeds of A Collateral received
in the Concentration Account within the meaning of Section 7.29 hereof shall
(subject to the other terms of this Agreement) be applied by the Administrative
Agent against the outstanding A Obligations as follows:
(i) first, to any outstanding fees, charges and expenses
then due the Administrative Agent or the Banks;
(ii) second, to outstanding interest charges then due in
respect of the Swingline Loans;
(iii) third, to the outstanding principal balance of the
Swingline Loans;
(iv) fourth, to the payment of any outstanding interest then
due on the A Loans (other than the Swingline Loans) and Reimbursement
Obligations, commitment fees or other fees or amounts relating to the A
Loans (other than the Swingline Loans), Reimbursement Obligations and L/Cs
due under the Notes, the A Security Documents, the L/C Agreements or this
Agreement other than for principal, ratably as among the Banks in accord
with the amount of such interest and other fees or amounts owing each;
(v) fifth, to the payment of the principal of the A Loans
(other than the Swingline Loans) and the Reimbursement Obligations ratably
as among the A Loans (other than the Swingline Loans) and Reimbursement
Obligations;
(vi) sixth, to be applied to any remaining unpaid or
unsatisfied A Obligations; and
(vii) finally, to the Borrower or whoever may be lawfully
entitled thereto.
(c) Application of B Collateral Proceeds Before Default. Prior
to the occurrence of an Event of Default, all proceeds of B Collateral shall
(subject to the other terms of this Agreement) be applied by the Administrative
Agent against the outstanding B Obligations as follows:
(i) first to the payment of any outstanding interest then
due on the B Loans ratably as among the Banks in accord with the amount
of such interest owing each;
(ii) second, to the payment of the principal of the B Loans;
(iii) third, to be applied to any remaining unpaid or
unsatisfied B Obligations; and
(iv) finally, to the Borrower or whoever may be legally
entitled thereto.
(d) Application of A Collateral Proceeds After Default. Anything
contained herein or in any of the Security Documents to the contrary
notwithstanding, all proceeds of the A Collateral and all payments and
collections received in respect of the A Loans and the Reimbursement
Obligations and received, in each instance, by the Administrative Agent or any
of the Banks after the occurrence and during the continuance of an Event of
Default shall be remitted to the Administrative Agent and distributed as
follows:
(i) first, to the payment of any outstanding costs and
expenses incurred by the Administrative Agent or any security trustee in
monitoring, verifying, protecting, preserving or enforcing the liens on
the A Collateral or in protecting, preserving or enforcing rights under
this Agreement, the A Security Documents or the Notes to the extent the
Notes evidence A Loans and in any event including all costs and expenses
of a character which the Borrower has agreed to pay under Section 11.8
hereof except to the extent such costs and expenses relate to the B Loans,
the B Security Documents or the B Collateral (such funds to be retained
by the Administrative Agent for its own account unless it has previously
been reimbursed for such costs and expenses by the Banks, in which event
such amounts shall be remitted to the Banks to reimburse them for
payments theretofore made to the Administrative Agent);
(ii) second, to the payment of any outstanding interest on
the A Loans and Reimbursement Obligations, commitment fees or other fees
or amounts relating to the A Loans, Reimbursement Obligations and L/Cs
due under the Notes, the A Security Documents, the L/C Agreements or
this Agreement other than for principal, ratably as among the Banks in
accord with the amount of such interest and other fees or amounts owing
each;
(iii) third, to the payment of the principal of the A Loans
and the Reimbursement Obligations ratably as among the A Loans and
Reimbursement Obligations;
(iv) fourth, to be held by the Administrative Agent as cash
collateral pursuant to Section 8.4 hereof;
(v) fifth, to the Banks ratably in accord with the amounts
of any other, Obligations of the Borrower owing to each of them and
secured by the A Security Documents unless and until all such Obligations
have been fully paid and satisfied; and
(vi) sixth, to the Borrower or whoever may be lawfully
entitled thereto.
(e) Application of B Collateral Proceeds After Default. Anything
contained herein or in any of the Security Documents to the contrary
notwithstanding, all proceeds of the B Collateral and all payments and
collections received in respect of B Loans and received, in each instance, by
the Administrative Agent or any of the Banks after the occurrence and during
the continuance of an Event of Default shall be remitted to the Administrative
Agent and distributed as follows:
(i) first, to the payment of any outstanding costs and
expenses incurred by the Administrative Agent or any security trustee in
monitoring, verifying, protecting, preserving or enforcing the liens on
the B Collateral or in protecting, preserving or enforcing rights under
this Agreement relating to the B Loans, the B Security Documents or the
Notes to the extent the Notes evidence the B Loans and in any event
including all costs and expenses of a character which the Borrower has
agreed to pay under Section 11.8 hereof but only to the extent such
costs and expenses relate to the B Loans, the B Security Documents or the
B Collateral (such funds to be retained by the Administrative Agent for
its own account unless it has previously been reimbursed for such costs
and expenses by the Banks, in which event such amounts shall be remitted
to the Banks to reimburse them for payments theretofore made to the
Administrative Agent);
(ii) second, to the payment of any outstanding interest on
the B Loans or other fees or amounts relating to the B Loans due under the
Notes, the B Security Documents, or this Agreement other than for
principal, ratably as among the Banks in accord with the amount of such
interest and other fees or amounts owing each;
(iii) third, to the payment of the principal of the B Loans
ratably as among the B Loans;
(iv) fourth, to the Banks ratably in accord with the amounts
of any other Obligations of the Borrower owing to each of them and secured
by the B Security Documents unless and until all such Obligations have
been fully paid and satisfied; and
(v) fifth, to the Borrower or whoever may be lawfully
entitled thereto.
(f) No Cross-Collateralization. Notwithstanding anything to the contrary
contained herein or in any of the Security Documents, A Collateral shall not
secure any B Loans or B Obligations, and B Collateral shall not secure any
A Loans or A Obligations. In the event that any Collateral that constitutes
Non-Principal Property otherwise becomes subject to the B Security Documents or
any Collateral that constitutes Principal Property otherwise becomes subject to
the A Security Documents, any lien created thereby shall be void ab initio, and
the Borrower, the Administrative Agent and the Banks shall immediately take all
such actions as may be necessary or advisable to have such Collateral (and any
proceeds or products thereof) released and correctly re-encumbered under the
appropriate Security Documents of the other Class.
(g) Except as otherwise specifically provided for herein, the Borrower
hereby irrevocably waives the right to direct the application of payments and
collections at any time received by the Administrative Agent or any of the
Banks from or on behalf of the Borrower, and the Borrower hereby irrevocably
agrees that the Administrative Agent shall have the continuing exclusive right
to apply and reapply any and all such payments and collections received at any
time by the Administrative Agent or any of the Banks against the Obligations
in the manner described above."
1.8. Section 4.1 of the Credit Agreement shall be amended by adding the
following definitions thereto:
"A Collateral" shall mean the collateral security provided to the
Administrative Agent for the benefit of the Banks pursuant to the A Security
Documents.
"Aircraft Security Agreement" is defined in Section 7.27(a) hereof.
"A Loan" is defined in Section 1.1(e) hereof.
"A Mortgage" is defined in Section 7.27(a) hereof.
"Approved Account Debtors" shall mean Alabama Farmers Coop, Inc., CF
Industries, Inc., Farmland Industries, Inc., Phosphate Chemicals Export Assoc.,
Tennessee Farmers Coop, Jimmy Sanders, Inc., Cargill, Inc., Potash Corporation
of Saskatchewan, Inc., IMC Agrico, Inc., UAP Fertilizer, Royster Clark,
Melamine Chemicals, BASF, Air Products and Vicksburg Chemical.
"Approved Foreign Account Debtor" shall mean Potash Corporation of
Saskatchewan, Inc.
"A Security Agreement" is defined in Section 7.27(a) hereof.
"A Security Documents" shall mean the A Security Agreement, the Aircraft
Security Agreement, the Fleet Mortgage and any and all other security
agreements, mortgages, deeds of trust, deeds of secured debt, pledge
agreements, assignments, financing statements, and other instruments or
documents at any time delivered to the Administrative Agent or any Bank to
provide collateral security for any indebtedness, obligations and liabilities
of the Borrower or any Guarantor under the Loan Documents other than the
principal of and interest on the B Loans.
"B Collateral" shall mean the collateral security provided to the
Administrative Agent for the benefit of the Banks pursuant to the B Security
Documents.
"B Loan" is defined in Section 1.1(e) hereof.
"B Loan Availability Reserve" means as of any time the same is to be
determined, $1,991,850 as of the Third Amendment Effective Date and at all
times thereafter to but not including the date of the second Borrowing (if any)
of B Loans and shall be reset as of such second and each subsequent Borrowing
(if any) of B Loans so as to equal such other amount (not greater than
$5,000,000) to which the Borrower and the Administrative Agent shall then
mutually agree; provided, however, that in the absence of any such agreement,
the B Loan Availability Reserve shall remain unchanged from its immediately
prior level.
"Blocked Account" is defined in Section 7.29 hereof.
"B Mortgage" is defined in Section 7.27(a) hereof.
"B Security Documents" shall mean the Pledge Agreement, the B Mortgages
and any and all other security agreements, mortgages, deeds of trust, deeds of
secured debt, pledge agreements, assignments, financing statements, and other
instruments or documents at any time delivered to the Administrative Agent or
any Bank to provide collateral security for any indebtedness, obligations and
liabilities of the Borrower or any Guarantor under the Loan Documents with
respect to the principal of and interest on the B Loans.
"Capital Expenditures" means, for any period, capital expenditures of the
Borrower and its Subsidiaries during such period as defined and classified in
accordance with generally accepted accounting principles, consistently applied.
"Cash Collateral Account" is defined in Section 3.6(a) hereof.
"Class" shall mean (a) with respect to any Loan, its status as an A Loan
or a B Loan, (b) with respect to any Collateral, its status as A Collateral or
B Collateral, and (c) with respect to any Obligations, whether such Obligations
are secured by the A Security Documents (which shall be "A Obligations") or the
B Security Documents (which shall be "B Obligations").
"Concentration Account" is defined in Section 7.29 hereof
"Consolidated Net Tangible Assets" of the Borrower shall have the same
meaning as such term is used in the Senior Note Indenture.
"Debt to Capital Ratio" shall mean, as of any date the same is to be
determined, the ratio of (a) the aggregate outstanding principal amount of all
Debt of the Borrower and its Subsidiaries as of such date, to (b) the sum of
the amount included in (a) above and the Net Worth of the Borrower and its
Subsidiaries as of such date.
"Eligible Inventory" means all raw material (but excluding work-in-
process) and finished goods inventory of the Borrower and its Subsidiaries
which in each case the Administrative Agent, in its reasonable judgment, deems
to be Eligible Inventory; provided that in no event shall inventory be deemed
Eligible Inventory unless all representations and warranties set forth in the
Security Documents with respect to such inventory are true and correct and
such inventory:
(a) is an asset of the Borrower or any of its Subsidiaries
to which it has good and marketable title, is freely assignable, is
subject to a perfected, first priority security interest in favor of the
Administrative Agent for the benefit of the Banks, and is free and clear
of any other liens and security interests;
(b) (i) is located in the United States at a location
permitted by the Security Agreement and within a jurisdiction in which the
Administrative Agent's security interests have attached and are perfected
by the filing of financing statements or (ii) is in transit to the
Borrower or a Subsidiary from a supplier, is fully insured and the
Administrative Agent is the loss payee on such insurance;
(c) if such Inventory consists of finished goods at
locations which are leased or warehouses not owned by the Borrower or any of
its Subsidiaries, (i) a landlord's or warehouseman's waiver satisfactory in
form and substance to the Administrative Agent shall have been delivered to
the Administrative Agent if the aggregate value of inventory at such location
exceeds $500,000 or $3,000,000 for all such locations, (ii) any non-negotiable
warehouse receipts or other non-negotiable documents for such inventory are
issued in the name of the Borrower or a Subsidiary or, alternatively, designate
the Administrative Agent directly or by endorsement as the only person to whom
or to whose order the warehouseman is legally obligated to deliver such goods
and (iii) any negotiable warehouse receipts or other negotiable documents for
such inventory are in the possession of the Administrative Agent;
(d) is not damaged or returned or obsolete or slow moving,
and is of good and merchantable quality free from any defects which might
adversely affect the market value thereof; and
(e) it is not spare parts inventory.
"Eligible Receivables" means all accounts receivable of the Borrower and
its Subsidiaries which the Administrative Agent, in its reasonable judgment,
deem to be Eligible Receivables; provided that in no event shall an account
receivable be deemed an Eligible Receivable unless all representations and
warranties set forth in the Security Documents with respect to such account
receivable are true and correct and further provided that such account
receivable:
(a) arises out of the sale by the Borrower or any of its
Subsidiaries of raw materials or finished goods inventory delivered to and
accepted by, or out of the rendition by the Borrower of services fully
performed by the Borrower or any of its Subsidiaries and accepted by, the
account debtor on such account receivable and such account receivable
otherwise represents a final sale;
(b) the account debtor on such account receivable is either
an Approved Foreign Account Debtor or principally located (as used in the
Uniform Commercial Code) within the United States of America or, if such right
has arisen out of the sale of such goods shipped to, or out of the rendition of
services to, an account debtor located in any other country, such right is
either (i) supported by insurance issued by the EXIM Bank or any other insurer
acceptable to the Administrative Agent, in each case in form and substance
satisfactory to the Administrative Agent (which in any event shall insure not
less than ninety percent (90%) of the face amount of such account receivable
and shall be subject to such deductions as are acceptable to the Administrative
Agent) or (ii) secured by a valid and irrevocable letter of credit pursuant to
which any of the Borrower, any of its Subsidiaries or their respective
transferee may draw on an issuer acceptable to the Administrative Agent for the
full amount thereof;
(c) is the valid, binding and legally enforceable
obligation of the account debtor obligated thereon and such account debtor is
not (i) a Subsidiary, member, manager, director, officer or employee of the
Borrower or any Subsidiary , (ii) is not an Affiliate of the Borrower or any
Subsidiary unless such account debtor has executed and delivered to the
Administrative Agent an agreement satisfactory in form and substance to the
Administrative Agent waiving all rights of set-off, counterclaims, recoupment
or other defenses with respect thereto, (iii) the United States of America,
or any state or political subdivision thereof, or any department, agency or
instrumentality of any of the foregoing, unless the Borrower or the relevant
Subsidiary has complied with the Assignment of Claims Act or any similar
state or local statute, as the case may be, to the satisfaction of the
Administrative Agent, (iv) a debtor under any proceeding under the United
States Bankruptcy Code, as amended, or any other comparable bankruptcy or
insolvency law, or (v) an assignor for the benefit of creditors;
(d) is not evidenced by an instrument or chattel paper
unless the same has been endorsed and delivered to the Administrative Agent;
(e) is an asset of the Borrower or a Subsidiary to which it
has good and marketable title, is freely assignable, is subject to a perfected,
first priority security interest in favor of the Administrative Agent, and is
free and clear of any other liens and security interests;
(f) is not subject to any offset, counterclaim or other
defense with respect thereto and, with respect to said account receivable or
the contract or purchase order out of which the same arose, no surety bond was
required or given in connection therewith;
(g) is not unpaid more than (i) 120 days from and after its
invoice date, or (ii) 30 days after its original due date on terms up to 90
days;
(h) is not owed by an account debtor who is obligated on
accounts receivable owed to the Borrower and its Subsidiaries more than 50% of
the aggregate unpaid balance of which have been past due for longer than the
relevant period specified in subsection (g) above unless the Administrative
Agent has approved the continued eligibility thereof;
(i) would not cause the total accounts receivable owing
from any one account debtor (excluding Approved Account Debtors) and its
Affiliates to exceed 10% of all Eligible Receivables unless the Borrower has
requested in writing that the Administrative Agent approve the continued
eligibility thereof and the Administrative Agent has approved in writing the
continued eligibility thereof;
(j) would not cause the total accounts receivable owing
from any one account debtor and its Affiliate to exceed any credit limit
established for purposes of determining eligibility hereunder by the
Administrative Agent in its reasonable judgment for such account debtor and
for which the Administrative Agent has given the Borrower at least five (5)
Business Day's prior notice of the establishment of any such credit limit;
(k) does not arise from a sale to an account debtor on a
bill-and-hold, guaranteed sale, sale-or-return, sale-on-approval, or any other
repurchase or return basis; and
(l) it is evidenced by an invoice dated not more than five
(5) Business Days after the shipment date.
"Eligible Spare Parts" means all spare parts inventory (excluding
capitalized spare parts) of the Borrower and its Subsidiaries which in each
case the Administrative Agent, in its reasonable judgment, deems to be Eligible
Spare Parts; provided that in no event shall spare parts inventory be deemed
Eligible Spare Parts unless all representations and warranties set forth in
the Security Documents with respect to such spare parts inventory are true
and correct and such spare parts inventory:
(a) is an asset of the Borrower or any of its Subsidiaries
to which it has good and marketable title, is freely assignable, is subject to
a perfected, first priority security interest in favor of the Administrative
Agent for the benefit of the Banks, and is free and clear of any other liens
and security interests;
(b) is located in the United States at a location permitted
by the Security Agreement and within a jurisdiction in which the Administrative
Agent's security interests have attached and are perfected by the filing of
financing statements;
(c) if such spare parts are located at locations which are
leased or warehouses not owned by the Borrower or any of its Subsidiaries, (i)
a landlord's or warehouseman's waiver satisfactory in form and substance to the
Administrative Agent shall have been delivered to the Administrative Agent if
the aggregate value of spare parts at such location exceeds $500,000 or
$3,000,000 for all such locations, (ii) any non-negotiable warehouse receipts
or other non-negotiable documents for such spare parts are issued in the name
of the Borrower or a Subsidiary or, alternatively, designate the Administrative
Agent directly or by endorsement as the only person to whom or to whose order
the warehouseman is legally obligated to deliver such spare parts and (iii) any
negotiable warehouse receipts or other negotiable documents for such spare
parts are in the possession of the Administrative Agent;
(d) is not held for sale or lease; and
(e) is not damaged or obsolete, and is of good and
merchantable quality free from any defects which might adversely affect the
market value thereof.
"Excess Cash Flow" shall mean, as of any date the same is to be
determined, an amount equal to the Borrower's Net Income for the four fiscal
quarters most recently ended plus non-cash charges for the same period less
Capital Expenditures permitted hereunder that were actually made during such
period, minus (in the case of increases) and plus (in the case of decreases)
the amount of any net changes in working capital excluding cash (determined
in accordance with generally accepted accounting principles, consistently
applied) during such period, less all payments on long-term Debt (excluding
the Obligations) scheduled to be made during such period.
"Excluded Non-Principal Property" shall mean all Non-Principal Properties
consisting of aircraft and barges.
"Fleet Mortgage" is defined in Section 7.27(a) hereof.
"Mortgaged Property" shall mean any Principal Property or Non-Principal
Property consisting of real estate that is required to be mortgaged in favor of
the Administrative Agent pursuant to Section 7.27(a) hereof.
"Net Worth" shall mean, for any Person and at any time the same is to be
determined, the total shareholders equity (including capital stock, additional
paid-in capital and retained earnings after deducting treasury stock and
excluding minority interests in Subsidiaries) which would appear on the balance
sheet of such Person and its Subsidiaries determined on a consolidated basis in
accordance with generally accepted accounting principles, consistently applied.
"Non-Principal Properties" shall mean all Property of the Borrower and its
Subsidiaries that is not Principal Properties, including but not limited to the
Property listed on Part 1 of Exhibit X hereto, but excluding the Property
listed on Part 2 of Exhibit X hereto.
"Obligations" means all obligations of the Borrower to pay principal and
interest on the Loans, all Reimbursement Obligations, all fees and charges
payable hereunder, and all other payment obligations of the Borrower arising
under or in relation to any Loan Document, in each case whether now existing or
hereafter arising, due or to become due, direct or indirect, absolute or
contingent, and howsoever evidenced, held or acquired.
"Pledge Agreement" is defined in Section 7.27(a) hereof.
"Principal Properties" shall have the meaning specified in the Senior Note
Indenture.
"Senior Note Indenture" shall mean the Indenture dated as of November 25,
1997, between the Borrower and Trustmark National Bank, as successor Trustee.
"Third Amendment Closing Date" shall mean February 24, 2000."
1.9. The table appearing in the definition of the term "Applicable Margin"
contained in Section 4.1 of the Credit Agreement shall be amended to read as
follows:
<PAGE>
<TABLE>
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
<S> <C> <C> <C> <C> <C> <C>
>3.75x >4.25x >5.00x >5.75x
- and - and - and - and
Pricing Ratio <3.75x <4.25x <5.00x <5.75x <6.50x >6.50x
-
Fed Funds Rate 3.00%
Loans 1.00% 1.20% 1.60% 2.00% 2.50%
Base Rate Loans .25% .35% .45% .55% 1.00% 1.50%
Eurodollar 3.00%
Loans 1.00% 1.20% 1.60% 2.00% 2.50%
Facility Fee .25% .30% .40% .50% .50% .50%
</TABLE>
The Applicable Margins from the effective date of this Amendment until the date
they are next redetermined pursuant to the Credit Agreement shall be those set
forth in Level VI.
1.10. The definitions of the terms "Borrowing Base", "Interest Coverage
Ratio" and "Loan Documents" contained in Section 4.1 of the Credit Agreement
shall be amended to read as follows:
" "Borrowing Base" shall mean, as of any time it is to be determined, the
sum (without duplication) of:
(a) 85% of the amount of the Eligible Receivables of the
Borrower and its Subsidiaries; plus
(b) 65% of the lower of weighted average cost or market
value (using the moving average cost method of inventory valuation applied
by the Borrower in accordance with generally accepted accounting
principles, consistently applied) of the Eligible Inventory of the
Borrower and its Subsidiaries, provided that the aggregate amount included
in the Borrowing Base pursuant to this subsection (b) shall not exceed
$50,000,000 at any time; plus
(c) 50% of the lower of cost or market value (using the
moving average cost method of inventory valuation applied by the Borrower
in accordance with generally accepted accounting principles, consistently
applied) of the Eligible Spare Parts of the Borrower and its Subsidiaries,
provided that the aggregate amount included in the Borrowing Base pursuant
to this subsection (c) shall not exceed $15,000,000 at any time; plus
(d) the lesser of (i) 50% of the appraised in-place value
of the Principal Properties of the Borrower and its Subsidiaries, as shown
on the appraisals thereof, and (ii) an amount equal to the difference
between (x) 15% of the Borrower's Consolidated Net Tangible Assets on the
most recent computation thereof in the form of Exhibit Z hereto delivered
to the Administrative Agent and (y) the B Loan Availability Reserve ; plus
(e) the lesser of $20,000,000 and 75% of the appraised
orderly liquidation value (as shown on the appraisals thereof) of the Non-
Principal Property; minus
(f) $10,000,000;
provided that (x) the Borrowing Base shall be computed only as against and on
so much of such Collateral as is included on the certificates to be furnished
from time to time by the Borrower pursuant to this Agreement and, if required
by the Administrative Agent pursuant to any of the terms hereof or any Security
Document, as verified by such other evidence required to be furnished to the
Administrative Agent pursuant hereto or pursuant to any such Collateral
Document, and (y) the amounts described in clauses (d) and (e) above shall be
recalculated only upon the purchase or sale of Principal Properties or Non-
Principal Properties, respectively.
"Interest Coverage Ratio" shall mean, with reference to each fiscal
quarter of the Borrower and its Subsidiaries, the ratio of (a) for purposes of
Section 7.21(a) hereof, EBITDA to Interest Expense, both calculated on a
cumulative quarterly basis beginning with the fiscal quarter ending March 31,
2001 to and including the fiscal quarter ending December 31, 2001, and
thereafter calculated for the four consecutive fiscal quarters ending on each
date of determination, and (b) for purposes of Sections 7.8 and 7.21(b) hereof,
EBITDA to Interest Expense, both calculated on a cumulative quarterly basis
beginning with the fiscal quarter ending March 31, 2000 to and including the
fiscal quarter ending December 31, 2000, and thereafter calculated for the four
consecutive fiscal quarters ending on each date of determination.
"Loan Documents" shall mean this Agreement and any and all exhibits
hereto, the Notes, the L/C Agreement, the Guaranty and the Security Documents."
1.11. The definition of the term "Asset Coverage Ratio" appearing in
Section 4.1 of the Credit Agreement is hereby deleted.
1.12. Section 6.2(c) of the Credit Agreement shall be amended to read as
follows:
"(c) with respect to each Loan requested by the Borrower, the
aggregate amount of the Total Outstandings shall not exceed the lesser of the
Borrowing Base, as most recently computed, and the Revolving Credit Commitments
then in effect;".
1.13. Section 6.2 of the Credit Agreement shall be further amended by
adding the word "and" after the semi-colon appearing at the end of subsection
(e) thereof and by adding the following provision thereto as subsection (f):
"(f) with respect to each B Loan requested by the Borrower, the
aggregate principal amount of all B Loans outstanding after giving effect
to the requested B Loan shall not exceed an amount equal to the difference
between (x) 15% of the Borrower's Consolidated Net Tangible Assets as
shown on the calculation thereof in the form of Exhibit Z attached hereto
delivered to the Administrative Agent by the Borrower in connection with
the request for such B Loan and (y) the B Loan Availability Reserve;".
1.14. Section 7.4(g) of the Credit Agreement shall be amended to read as
follows:
"(g) no later than 20 days after the end of each month, commencing with
the month ended February 29, 2000, a Borrowing Base Report setting forth the
computation of the Borrowing Base as of the last day of such month, together
with such other information as such certificate requires, certified as correct
by the chief financial officer of the Borrower (it being agreed that the
Borrower may elect to deliver a Borrowing Base Report more frequently than
required by this Section 7.4(g)); and".
1.15. Section 7.4 of the Credit Agreement shall be amended by adding the
following provisions thereto as subsections (h), (i) and (j):
"(h) as soon as available, and in any event within 20 days after the end
of each month that is not the last month of a fiscal quarter of the Borrower,
commencing with the month ending January 31, 2000, a copy of the consolidated
and consolidating balance sheets and income statements and consolidated cash
flow statements of the Borrower and its Subsidiaries for such month and the
year to date and for the corresponding periods of the preceding fiscal year,
all in reasonable detail, prepared by the Borrower and certified by the chief
financial officer of the Borrower; and
(i) as soon as available, and in any event within twenty (20)
days after the end of each month, commencing with the month ending February 29,
2000, an accounts receivable and accounts payable aging, an accounts receivable
concentration and reconciliation report, an inventory report (broken down by
category) and such other information and reports as the Administrative Agent
may reasonably request, each as of the close of such period and in reasonable
detail prepared by the Borrower and certified to by the chief financial
officer of the Borrower."
1.16. Section 7.8 of the Credit Agreement shall be amended to read as
follows:
"Section 7.8. Dividends and Certain Other Restricted Payments. The
Borrower will not (a) declare or pay any dividends or make any distribution on
any class of its capital stock (other than dividends payable solely in its
capital stock) or (b) directly or indirectly purchase, redeem or otherwise
acquire or retire any of its capital stock (except out of the proceeds of, or
in exchange for, a substantially concurrent issue and sale of capital stock)
or (c) make any other distributions with respect to its capital stock
(collectively, "Restricted Payments"); provided that so long as no Potential
Default or Event of Default shall exist before and after giving effect thereto
the Borrower may (i) pay dividends on its capital stock in an amount not to
exceed $0.03 per share with respect to each of its fiscal quarters ending
December 31, 1999 and March 31, 2000, and (ii) with respect to each fiscal
quarter of the Borrower thereafter and so long as the Borrower's Interest
Coverage Ratio as of the last day of such fiscal quarter exceeds 1.00 to 1, pay
dividends in an aggregate amount not to exceed the sum of $0.03 per share and
25% of the Borrower's Excess Cash Flow for such fiscal quarter."
1.17. Section 7.9 of the Credit Agreement shall be amended deleting
subsection (l) thereof and adding the following provisions thereto as
subsections (l) and (m):
"(l) liens, mortgages and security interests in the Collateral (i) granted
to the Administrative Agent for the benefit of the Banks pursuant to Section
7.26 hereof and (ii) in favor of the holders of the Borrower's Senior Notes (or
a security trustee on their behalf), provided, that such liens, mortgages and
security interests shall secure all of the Borrower's and the Guarantors'
indebtedness, obligations and liabilities to the Administrative Agent and the
Banks, on the one hand, and to the holders of the Borrower's Senior Notes, on
the other hand, equally and ratably in accordance with the Senior Note
Indenture and pursuant to written provisions satisfactory to the Required
Banks; and
(m) liens, mortgages and security interests in the Collateral granted to
the Administrative Agent for the benefit of the Banks pursuant to Section 7.27
hereof."
1.18. Sections 7.20 and 7.21 of the Credit Agreement shall be amended to
read as follows:
"Section 7.20. Maximum Debt to Capital Ratio. The Borrower will, as of
the last day of each fiscal quarter of the Borrower, maintain a Debt to Capital
Ratio less than or equal to 0.55 to 1.
Section 7.21. Minimum Interest Coverage Ratio. (a) The Borrower will,
as of the last day of each fiscal quarter of the Borrower commencing with the
fiscal quarter ending March 31, 2001, maintain an Interest Coverage Ratio of
not less than 1.00 to 1.
(b) The Borrower will, as of the last day of each period of three
consecutive fiscal quarters of the Borrower commencing with the three
consecutive fiscal quarters ending March 31, 2001 (being the fiscal quarters
ended September 30, 2000, December 31, 2000 and March 31, 2001), maintain an
Interest Coverage Ratio of not less than 1.00 to 1."
1.19. Section 7.22(a) of the Credit Agreement shall be amended by replacing
the phrase "September 30, 1997, $188,112,500" with the phrase "December 31,
1999, $175,000,000".
1.20. The introductory clause of Section 7.26(b) of the Credit Agreement
shall be amended by adding the phrase "Except to the extent the following items
have been delivered to the Administrative Agent pursuant to Section 7.27(b) of
this Agreement" at the beginning thereof.
1.21. The Credit Agreement shall be amended by adding the following
provisions thereto as Sections 7.27, 7.28 and 7.29:
"Section 7.27. Liens. (a) No later than the sixtieth day after the Third
Amendment Closing Date, the Borrower will, and will cause each Subsidiary to,
execute and deliver to the Administrative Agent, for the benefit of the Banks,
(i) a Security Agreement in the form of Exhibit R hereto (a "A Security
Agreement") to grant to the Administrative Agent for the benefit of the Banks a
security interest in all of the Borrower's and such Subsidiaries' A Collateral
(each as more fully described therein), a Security Agreement Re Aircraft in the
form of Exhibit S hereto (the "Aircraft Security Agreement"), a First Preferred
Fleet Mortgage in the form of Exhibit T hereto (the "Fleet Mortgage"), and a
Deed of Trust and Security Agreement with Assignment of Rents in the form of
Exhibit W hereto (or with respect to real property located in a mortgage state,
a Mortgage and Security Agreement with Assignment of Rents in the form of
Exhibit W with such changes as shall be necessary to reflect the fact that it
is a mortgage rather than a deed of trust) (each an "A Mortgage"), as
appropriate, and such other instruments and documents as the Administrative
Agent may reasonably request, with regard to all of the Non-Principal
Properties of the Borrower and its Subsidiaries, together with such UCC
financing statements as the Administrative Agent may reasonably request to
perfect its security interest thereunder, to grant to the Administrative Agent
for the benefit of the Banks a security interest in all of the Borrower's and
such Subsidiaries' A Collateral (each as more fully described therein) as
security solely for the Borrower's and the Guarantors' indebtedness,
obligations and liabilities to the Administrative Agent and the Banks under
the Loan Documents other than the principal of and interest on the B Loans,
and (ii) a Deed of Trust and Security Agreement with Assignment of Rents in
the form of Exhibit U hereto (or with respect to real Property located in a
mortgage state, a Mortgage and Security Agreement with Assignment of Rents
in the form of Exhibit U with such changes as shall be necessary to reflect
the fact that it is a mortgage rather than a deed of trust) (each a "B
Mortgage"), as appropriate, and such other instruments and documents
as the Administrative Agent may reasonably request, with regard to all of the
real property that constitutes Principal Properties (other than the gas and
N-Sol pipelines owned by the Borrower and its Subsidiaries), and a Pledge
Agreement in the form of Exhibit V hereto (the "Pledge Agreement"), together
with such financing statements as the Administrative Agent may reasonably
request to perfect its security interest thereunder, to grant to the
Administrative Agent for the benefit of the Banks a security interest in all of
the Borrower's and such Subsidiaries' B Collateral (each as more fully
described therein) as security solely for the Borrower's and the Guarantors'
indebtedness, obligations and liabilities to the Administrative Agent and the
Banks under the Loan Documents relating to the principal of and interest on
the B Loans.
(b) Together with the Security Documents required to be delivered
pursuant to Section 7.27(a), (e) or (f) hereof, the Borrower, at its expense,
shall, and shall cause each Subsidiary to, deliver to the Administrative Agent
as to each of the Mortgaged Properties:
(i) as to each of the A Mortgages, a mortgagee's policy (or
policies) of title insurance (or binding commitment(s) therefor) in an
amount (or aggregate amount if there is more than one such policy) equal
to the lower of (A) 100% of the appraised value of the real estate subject
to such A Mortgage and (B) the aggregate amount of the A Loans,
Reimbursement Obligations and the corresponding amount of the Revolving
Credit Commitments, if any, then existing hereunder, with a waiver of
coinsurance (if reasonably available), insuring the liens of the A
Mortgages to be valid first liens subject to no defects or objections
(except for matters permitted under Section 7.9(c), (d), (e), (f),
(g), (i) and (j) hereof and other customary exceptions) which are
unacceptable to the Administrative Agent, together with such direct access
reinsurance agreements and endorsements (including without limitation a
revolving credit endorsement, letter of credit endorsement, and doing
business, usury and zoning endorsements) as the Administrative Agent may
reasonably require, which policies may contain an endorsement in form
acceptable to the Administrative Agent which limits the total amount
payable under all such policies to 100% of the appraised fair market
value of the Non-Principal Properties (or if the Banks' Revolving Credit
Commitments have been terminated or reduced, such lower amount equal to
the aggregate principal amount of all A Loans and Reimbursement
Obligations then outstanding and the corresponding amount of the Banks'
Revolving Credit Commitments then in effect) and costs which the title
company issuing such policies is required to pay pursuant thereto;
(ii) as to each of the B Mortgages, a mortgagee's policy (or
policies) of title insurance (or binding commitment(s) therefor) in an
amount (or aggregate amount if there is more than one such policy) equal
to the lower of (A) 100% of the appraised value of the real estate subject
to such B Mortgage and (B) the maximum aggregate amount of the B Loans and
the corresponding amount of the Revolving Credit Commitments, if any, then
existing hereunder, with a waiver of coinsurance (if reasonably
available), insuring the liens of the B Mortgages to be valid first liens
subject to no defects or objections (except for matters permitted under
Section 7.9(c), (d), (e), (f), (g), (i) and (j) hereof and other
customary exceptions) which are unacceptable to the Administrative Agent,
together with such direct access reinsurance agreements and endorsements
(including without limitation a revolving credit endorsement, and doing
business, usury and zoning endorsements) as the Administrative Agent may
reasonably require, which policies may contain an endorsement in form
acceptable to the Administrative Agent which limits the total amount
payable under all such policies to 100% of the appraised fair market
value of the Principal Properties (or if the Banks' Revolving Credit
Commitments have been terminated or reduced, such lower amount equal to
the aggregate principal amount of all B Loans and the corresponding
amount of the Banks' Revolving Credit Commitments then in effect) and
costs which the title company issuing such policies is required to pay
pursuant thereto;
(iii) appraisals meeting all regulatory requirements
applicable to each of the Banks and current Phase I environmental
inspection reports;
(iv) as to each of the Principal Properties (other than
equity interests in Subsidiaries) engineering drawings acceptable to the
Administrative Agent and sufficient for the title insurance company
insuring the B Mortgage on such Principal Property to issue an
endorsement stating that the real property described in such title policy
is the same as the property shown on such engineering drawings (except
with respect to such Principal Properties in New Mexico) and to delete
the survey exception from the title insurance policy issued in connection
therewith;
(v) written evidence of any consents and approvals obtained
in connection with the execution, delivery and recordation of each of the
A Security Documents and the B Security Documents;
(vi) an opinion of local counsel to the Borrower and its
Subsidiaries in such states as the Administrative Agent may require as to
the validity and enforceability of such Security Documents, the creation
and perfection of the Liens created thereby and such other matters as the
Administrative Agent may reasonably request, each in form and substance
reasonably satisfactory to the Administrative Agent; and
(vii) evidence of insurance required by the A Security
Documents and the B Security Documents.
(c) No provision of any of the A Security Documents or the B
Security Documents may be amended, modified or waived without the prior
written consent of all of the holders of all Obligations of the Class secured
thereby if the effect of such amendment, modification or waiver would be to
release all or any substantial part (in value) of the Collateral subject
thereto, except in connection with any sale or disposition permitted or
required by this Agreement, the A Security Documents or the B Security
Documents (it being agreed that the Administrative Agent may release its
security interest in any such Property without the consent of any of such
holders).
(d) The Borrower agrees to pay on demand and upon receipt of
supporting statements, all reasonable costs and expenses of the Administrative
Agent, in connection with the negotiation, preparation, execution and delivery
of the A Security Documents and the B Security Documents and the other
instruments and documents to be delivered hereunder or in connection with the
transactions contemplated hereby, including the reasonable fees and expenses of
Messrs. Chapman and Cutler, special counsel to the Administrative Agent.
(e) Notwithstanding any provision of this Agreement to the
contrary, the Borrower shall apply 100% of the proceeds of any sale or other
disposition of any Collateral under the A Security Documents or the B Security
Documents (net of any costs, expenses and taxes incurred in connection with
such sale or other disposition) (other than sales of inventory in the ordinary
course of business and sales of Receivables pursuant to Receivables
Securitization Programs permitted under this Agreement) in excess of $5,000,000
in any fiscal year ("Surplus Proceeds") either (i) within 180 days of its
receipt of such Surplus Proceeds, to the acquisition of Property usable in a
line of business of the Borrower or one or more of its Subsidiaries that is
concurrently with its acquisition encumbered as provided in this Section 7.27
("Substitute Property"), or (ii) if the Borrower is not going to use such
Surplus Proceeds to acquire Substitute Property, to the prepayment of Loans of
the Class secured by the Collateral sold or disposed of which are outstanding
hereunder within 2 Business Days of their receipt by the Borrower or any of
its Subsidiaries (at which time the Revolving Credit Commitments shall
automatically and permanently reduce by an amount equal to the amount of such
prepayment and each Bank's Revolving Credit Commitment shall reduce by its
Commitment Percentage of such reduction, unless (x) such prepayment was made
with proceeds of Excluded Non-Principal Properties, or (y) the aggregate
principal amount of all such prepayments made with proceeds of any other
Non-Principal Properties in any fiscal year does not exceed $10,000,000, in
which case the Revolving Credit Commitments shall not be reduced). If the
Borrower elects to acquire Substitute Property with such proceeds the
Borrower shall (x) give the Administrative Agent written notice of its
intention to use such Surplus Proceeds to acquire Substitute Property within
2 Business Days of its receipt of such Surplus Proceeds, and (y) either use
such Surplus Proceeds to repay the Loans of the Class secured by the Collateral
sold or disposed of which are outstanding hereunder until such time as such
Substitute Property is acquired or place such Surplus Proceeds in an escrow
arrangement to the extent doing so would reduce or avoid the payment of income
taxes with respect to profits realized in connection with such sale. Any
Surplus Proceeds that have not been used to acquire Substitute Property by the
end of such 180 day period shall be used to prepay Loans hereunder of the Class
secured by the Collateral so sold or disposed of. Concurrently with each
prepayment of Loans required by this Section 7.27(e) upon the expiration of a
180-day period the Revolving Credit Commitments shall automatically and
permanently reduce by an amount equal to the amount of such prepayment, and
each Bank's Revolving Credit Commitment shall reduce by its Commitment
Percentage of such reduction, unless (x) such prepayment was made with
proceeds of Excluded Non-Principal Properties, or (y) the aggregate
principal amount of all such prepayments made with proceeds of any other
Non-Principal Properties in any fiscal year does not exceed $10,000,000, in
which case the Revolving Credit Commitments shall not be reduced.
(f) Within 60 days after acquiring any Property the Borrower
shall, and shall cause each of its Subsidiaries to, grant to the Administrative
Agent for the benefit of the Banks liens therein as provided in Section 7.27(a)
hereof.
(g) Notwithstanding anything contained in Section 7.26(c) of this
Agreement, in no event shall any of the Collateral provided pursuant to the
requirements of this Section 7.27 be subject to Section 7.26(c) of this
Agreement."
Section 7.28. Capital Expenditures. The Borrower shall not, nor shall
it permit any Subsidiary to, expend or become obligated for Capital
Expenditures (exclusive of Capital Expenditures made with the proceeds of any
sale or other disposition of Collateral permitted under this Agreement or the
proceeds of insurance) in an aggregate amount for the Borrower and its
Subsidiaries in excess of (a) during the Borrower's fiscal year ending June 30,
2000, $25,000,000 and (b) during any fiscal year of the Borrower thereafter,
$30,000,000 plus the Carryover Amount. For purposes of this Section 7.28 the
term "Carryover Amount" shall mean, for any fiscal year of the Borrower, an
amount equal to the difference between the maximum amount of Capital
Expenditure which the Borrower and its Subsidiaries were permitted to make in
each of the preceding fiscal years commencing with the fiscal year ending June
30, 2000 (determined without regard to any Carryover Amount) and the aggregate
amount of Capital Expenditures actually made by the Borrower and its
Subsidiaries during the same period.
Section 7.29. Collateral Proceeds. The Borrower agrees to make, and to
cause each of its Subsidiaries to make, such arrangements as shall be necessary
or appropriate to assure (through the use of one or more lockboxes under the
sole control of the Administrative Agent) that all proceeds of the A Collateral
are deposited (in the same form as received) in one or more remittance accounts
at least one of which is maintained with the Administrative Agent but the
others of which may be maintained with any commercial bank acceptable to the
Administrative Agent if and so long as it remains under the control of the
Administrative Agent, each such account to constitute a special restricted
account (each such special restricted account with a commercial bank other than
the Administrative Agent to be referred to hereinafter as a "Blocked Account"
and the special restricted account maintained with the Administrative Agent to
be referred to herein as the "Concentration Account"). Each commercial bank at
which a Blocked Account is maintained must provide its written acknowledgement
and agreement in form and substance reasonably satisfactory to the
Administrative Agent that funds deposited in such Blocked Account represent
proceeds of the A Collateral, that such commercial bank agrees to hold such
funds as the Administrative Agent's bailee subject to the Administrative
Agent's direction and control and that such commercial bank agrees to wire
transfer or ACH transfer to the Concentration Account on a daily basis all
amounts on deposit in the Blocked Account as and when such commercial bank
deems such amounts to constitute collected funds in accordance with its
customary practices regarding funds availability. Any proceeds of A Collateral
received by the Borrower or any of its Subsidiaries shall be held by the
Borrower or such Subsidiary in trust for the Administrative Agent and the Banks
in the same form in which received, shall not be commingled with any assets of
the Borrower or its Subsidiaries, and shall be delivered immediately to the
Administrative Agent (together with any necessary endorsements thereto) for
deposit into the Concentration Account. The Borrower, for itself and its
Subsidiaries, acknowledges that the Administrative Agent has (and is hereby
granted to the extent it does not already have) a lien and security interest
on the Blocked Accounts and Concentration Account and all funds contained
therein for the ratable benefit of the Banks to secure the Obligations of the
Borrower and its Subsidiaries specified in the A Security Documents. No
amounts deposited in the Blocked Accounts or Concentration Account shall be
released to the Borrower or any Subsidiary, but shall instead be applied to,
or otherwise held as collateral security for, the outstanding Obligations of
the Borrower and its Subsidiaries specified in the A Security Documents as set
forth in Section 3 hereof, it being understood and agreed that the Borrower
notwithstanding such application shall have the right to obtain additional
Loans and L/Cs under this Agreement subject to the terms and conditions
hereof."
1.22. Sections 8.1(a) and (b) of the Credit Agreement shall be amended to
read as follows:
"(a) Default in the payment when due of (i) any principal of any
Loan or any Reimbursement Obligation (ii) any interest on any Loan or any
Reimbursement Obligation which continues unremedied for 5 Business Days,
whether at the stated maturity thereof or at any other time provided in this
Agreement, or default in the payment when due of any fee or other amount
payable by the Borrower pursuant to this Agreement, which continues
unremedied for 5 Business Days;
(b) Default in the observance or performance of any covenant set
forth in Sections 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 7.13,
7.15, 7.16, 7.18, 7.19, 7.20, 7.21, 7.22, 7.23, 7.24, 7.26, 7.27, 7.28 or 7.29
hereof or any provisions of any Security Documents requiring the maintenance of
insurance on the Collateral subject thereto as dealing with the use or
remittance of proceeds of Collateral;".
1.23. Section 8.1(l) of the Credit Agreement shall be amended to read as
follows:
"(l) The Borrower or any Subsidiary shall disavow, repudiate,
breach or purport to terminate any of its obligations under any of the Security
Documents to which it is a party or any part thereof, or any lien or security
interest granted or created pursuant to any Security Document shall not be
valid and enforceable for any reason (other than the termination or release
thereof in accordance with Section 7.26 of this Agreement or any action or
inaction by the Administrative Agent or any Bank) upon any party thereto."
1.24. Sections 8.2 and 8.3 of the Credit Agreement shall be amended to read
as follows:
"Section 8.2. Remedies for Non-Bankruptcy Defaults. When any Event of
Default, other than an Event of Default described in subsections (h) and (i) of
Section 8.1 hereof, has occurred and is continuing, the Administrative Agent,
if directed by the Required Banks, shall give written notice to the Borrower
and take any or all of the following actions: (a) terminate the remaining
Revolving Credit Commitments hereunder on the date (which may be the date
thereof) stated in such notice, (b) declare the principal of and the accrued
interest on the Loans of any Class and Reimbursement Obligations to be
forthwith due and payable and thereupon such Loans and Reimbursement
Obligations including both principal and interest, shall be and become
immediately due and payable without further demand, presentment, protest or
notice of any kind, and (c) take any action or exercise any remedy under any
of the Loan Documents or exercise any other action, right, power or remedy
permitted by law. Any Bank may exercise the right of set off with regard to
any deposit accounts or other accounts or investments maintained by the
Borrower with any of the Banks.
Section 8.3. Remedies for Bankruptcy Defaults. When any Event of
Default described in subsections (h) or (i) of Section 8.1 hereof has occurred
and is continuing, then the Loans of both Classes and Reimbursement Obligations
shall immediately become due and payable without presentment, demand, protest
or notice of any kind, and the obligation of the Banks to extend further credit
pursuant to any of the terms hereof shall immediately terminate."
1.25. The Credit Agreement shall be amended by replacing Exhibits H and N
thereto with Exhibits H and N attached to this Amendment, respectively.
1.26. Section 2(b) of Exhibit O to the Credit Agreement shall be amended by
adding the following provision at the end thereof:
"Notwithstanding the foregoing, any of the Collateral that constitutes
"Principal Property" (as defined in the Senior Note Indenture) of the
Borrower or any of its Subsidiaries shall secure only the payment of the
principal of and interest on the B Loans under the Credit Agreement."
1.27. The Credit Agreement shall be amended by adding thereto as Exhibits
R, S, T, U ,V, W, X, Y and Z the forms attached to this Amendment as Exhibits
R, S, T, U, V, W, X, Y and Z, respectively.
SECTION 2. CONDITIONS PRECEDENT.
This Amendment shall become effective upon the satisfaction of all of the
following conditions precedent:
2.1. The Borrower, the Administrative Agent and the Required Banks shall
have executed this Amendment (such execution may be in several counterparts and
the several parties hereto may execute on separate counterparts).
2.2. The Administrative Agent shall have received:
(a) appraisals meeting all regulatory requirements
applicable to each of the Banks of the Non-Principal Properties
performed by an appraiser and showing results acceptable to the
Administrative Agent;
(b) appraisals meeting all regulatory requirements
applicable to each of the Banks of the Principal Properties
consisting of real property performed by an appraiser acceptable to
the Administrative Agent and showing an aggregate in-place value of
such property of not less than $750,000,000;
(c) appraisals of the spare parts inventory of the Borrower
and its Subsidiaries pledging Collateral, performed by an appraiser
and showing results acceptable to the Administrative Agent;
(d) the results of a field audit of the Borrower's and its
Subsidiaries' inventory and accounts receivable;
(e) a calculation of the Borrower's Consolidated Net
Tangible Assets in the form of Exhibit Z hereto as of January 31,
2000;
(f) a Borrowing Base Report showing the calculation of the
Borrowing Base, an accounts receivable and accounts payable aging,
an accounts receivable concentration and reconciliation report and
an inventory report (broken down by category), each as of January
31, 2000;
(g) such documentation as the Administrative Agent shall
require in order to establish the Concentration Account (as defined
in Section 7.29 of the Credit Agreement as amended hereby);
(h) copies, certified as true, correct and complete by the
Secretary or Assistant Secretary of the Borrower and each of its
Subsidiaries pledging Collateral, of resolutions (or equivalent
action) regarding the transactions contemplated by this Amendment,
the A Security Documents and the B Security Documents, duly adopted
by the Board of Directors (or equivalent body) of the Borrower and
each of its Subsidiaries and satisfactory in form and substance to
the Administrative Agent;
(i) an incumbency and signature certificate for the
Borrower and each of its Subsidiaries pledging Collateral,
satisfactory in form and substance to the Administrative Agent;
(j) an opinion of counsel to the Borrower and its
Subsidiaries, in substantially the form of Exhibit Y attached
hereto, subject to such modifications as may be necessary to reflect
changes in law, judicial decisions or practice;
(k) good standing certificates for the Borrower and each
Subsidiary pledging Collateral issued by the office of the secretary
of state of their respective states of organization as of a date not
earlier than 15 days prior to the date of this Amendment;
(l) copies of the by-laws (or equivalent documents for non-
corporate entities) of the Borrower and each Subsidiary pledging
Collateral, certified by the Secretary or Assistant secretary (or
equivalent officer) of the Borrower and each such Subsidiary; and
(m) copies of the articles of incorporation (or equivalent
documents for non-corporate entities) for the Borrower and each
Subsidiary pledging Collateral, certified by the office of the
secretary of state of their respective states of organization as of
a date not earlier than 15 days prior to the date of this Amendment.
2.3. The Administrative Agent shall have received for the account of each
Bank that has approved and executed this Amendment (each a "Consenting Bank")
an amendment fee equal to 0.5% of each Consenting Bank's Revolving Credit
Commitment.
2.4. Each of the representations and warranties set forth in Section 5 of
the Credit Agreement shall be true and correct, except that the representations
and warranties made under Section 5.2 shall be deemed to refer to the most
recent financial statements furnished to the Banks pursuant to Section 7.4 of
the Credit Agreement.
2.5. The Borrower shall be in full compliance with all of the terms and
conditions of the Loan Documents and no Event of Default or Potential Default
shall have occurred and be continuing thereunder or shall result after giving
effect to this Amendment.
SECTION 3. MISCELLANEOUS.
3.1. Each of the Guarantors acknowledges the execution of the foregoing
Amendment by the Borrower and acknowledges that this consent is not required
under the terms of the Guaranty and that the execution hereof by the Guarantors
shall not be construed to require the Banks to obtain their acknowledgment to
any future amendment, modification or waiver of any term of the Credit
Agreement except as otherwise provided in said Guaranty. Each of the
Guarantors hereby agree that the Guaranty shall apply to all indebtedness,
obligations and liabilities of the Borrower to the Banks under the Credit
Agreement, as amended pursuant to the Amendment, and that the Guaranty shall
be and remain in full force and effect.
3.2. Reference to this specific Amendment need not be made in any note,
document, letter, certificate, the Credit Agreement itself, the Notes, or any
communication issued or made pursuant to or with respect to the Credit
Agreement, any reference to the Credit Agreement being sufficient to refer to
the Credit Agreement as amended hereby.
3.3. This Amendment may be executed in any number of counterparts, and by
the different parties on different counterparts, all of which taken together
shall constitute one and the same agreement. Any of the parties hereby may
execute this agreement by signing any such counterpart and each of such
counterparts shall for all purposes be deemed to be an original. This
agreement shall be governed by the internal laws of the State of Illinois.
Upon acceptance hereof by the Administrative Agent and the Banks in the
manner hereinafter set forth, this Amendment shall be a contract between us for
the purposes hereinabove set forth.
Dated as of February 24, 2000.
MISSISSIPPI CHEMICAL CORPORATION
By /s/ Timothy A. Dawson
Its Senior Vice President and
Chief Financial Officer
MISSISSIPPI NITROGEN, INC.
By /s/ Timothy A. Dawson
Its Vice President and Treasurer
MISSCHEM NITROGEN, L.L.C.
By /s/ Timothy A. Dawson
Its Vice President of Finance
Accepted and Agreed to as of the day and year last above written.
HARRIS TRUST AND SAVINGS BANK,
individually and as Administrative Agent
By /s/ Julie K. Hossack
Its Vice President
CREDIT AGRICOLE INDOSUEZ
By /s/ Katherine L. Abbott
Its First Vice President
By /s/ Bradley C. Peterson
Its Vice President, Manager
BANQUE NATIONALE DE PARIS, HOUSTON AGENCY
By /s/ Jeff Tebeaux
Its Banking Officer
BANK OF AMERICA, N.A. (formerly known as
Bank of America National Trust and Savings
Association)
By
Its
THE BANK OF NOVA SCOTIA, ATLANTA AGENCY
By /s/ FCH Ashby
Its Senior Manager Loan Operations
SUNTRUST BANK, ATLANTA
By /s/ Gregory L. Cannon
Its Vice President
FIRST UNION NATIONAL BANK
By /s/ Jorge A. Gonzalez
Its Senior Vice President
ABN AMRO BANK N.V.
By /s/ Kevin P. Costello
Its Vice President
By /s/ Gordon D. Chang
Its Vice President
THE FUJI BANK, LIMITED
By /s/ Yuji Tanaka
Its Vice President & Manager
THE DAI-ICHI KANGYO BANK, LTD.
By /s/ Matthew G. Murphy
Its Vice President
TRUSTMARK NATIONAL BANK
By /s/ W. H. Edwards
Its Vice President
AMSOUTH BANK
By /s/ Stanley A. Herren
Its Senior Vice President
<PAGE>
EXHIBIT H
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to Harris Trust and Savings Bank
and the other Banks (collectively, the "Banks") and Harris Trust and Savings
Bank as Administrative Agent (the "Administrative Agent") for the Banks,
pursuant to that certain Credit Agreement dated as of November 25, 1997, as
amended by and among Mississippi Chemical Corporation, a Mississippi
corporation (the "Borrower"), the Administrative Agent and the Banks (the
"Agreement"). Unless otherwise defined herein, the terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1.I am the duly elected [President] or [Chief Financial Officer] of the
Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a review of the transactions and
conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements sufficient for me to provide this
Certificate;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Potential Default or Event of Default during or at the end of the accounting
period covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. If attached financial statements are being furnished pursuant to
Section 7.4(a) of the Agreement, Schedule I attached hereto sets forth
financial data and computations evidencing the Borrower's compliance with
certain covenants of the Agreement, all of which data and computations are
true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking or proposes to
take with respect to each such condition or event:
______________________________________________________________________________
______________________________________________________________________________
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this _____ day of ________________,
________.
___________________________________________
[President] or [Chief Financial Officer of
The Borrower]
<PAGE>
<TABLE>
SCHEDULE 1
TO COMPLIANCE CERTIFICATE
MISSISSIPPI CHEMICAL CORPORATION
COMPLIANCE CALCULATIONS FOR
CREDIT AGREEMENT DATED AS OF NOVEMBER 25, 1997, AS AMENDED
CALCULATIONS AS OF ____________________, _______
I. SECTION 7.21 MAXIMUM DEBT TO CAPITAL RATIO.
<S> <C>
(a) Debt................................. $___________
(b) Net Worth............................ $___________
(c) Total Capital ((a) + (b))............ $___________
(d) Debt to Capital Ratio
((a) divided by (c))................._________ to 1*
*Required to be not more than 0.55 to 1
Compliance.......................... Yes____ No_____
II. SECTION 7.22 MINIMUM INTEREST COVERAGE RATIO.
<S> <C>
(a)____________________..................... $___________
(b)____________________..................... $___________
(c)Interest Coverage Ratio
((a) divided by (b))....................._________ to 1*
*Required to be not less than 1.00 to 1
(reporting required from September 30, 2000 but
compliance required from and after March 31, 2001)
Compliance.......................... Yes____ No_____
III. SECTION 7.23 MINIMUM TANGIBLE NET WORTH.
<S> <C>
(a)____________________..................... $___________
(b)____________________..................... $___________
(c)Net Worth ((a) plus (b))................. $___________*
*Required to be not less than $_______________
Compliance.......................... Yes____ No_____
IV. PRICING RATIO.
<S> <C>
(a)____________________..................... $___________
(b)____________________..................... $___________
(c)____________________..................... $___________
(d)Pricing Ratio
((a) divided by (b))....................._________ to 1
</TABLE>
<TABLE>
EXHIBIT N
MISSISSIPPI CHEMICAL CORPORATION
BORROWING BASE REPORT
($ IN 000'S)
Computation date as of _____________________
SCHEDULE
<S> <C> <C>
I Eligible Accounts Receivable $
Accounts Receivable Advance Rate 85%
ACCOUNTS RECEIVABLE IN BORROWING BASE $
II Eligible Product Inventory $
Product Inventory Advance Rate 65%
Product Inventory in Borrowing Base $
Maximum of $50,000 $50,000
LOWER OF BORROWING BASE OR MAXIMUM $
III Eligible Spare Parts Inventory $
Spare Parts Inventory Advance Rate 50%
Spare Parts Inventory in Borrowing Base $
Maximum of $15,000 $15,000
LOWER OF BORROWING BASE OR MAXIMUM $
IV PRINCIPAL PROPERTIES IN BORROWING BASE $
V NON-PRINCIPAL PROPERTIES IN BORROWING BASE $
Required Excess Availability $10,000
TOTAL BORROWING BASE (TBB) (SUM OF I $
THROUGH V MINUS REQUIRED EXCESS
AVAILABILITY
Revolving Credit Commitments (RCC) $200,000
Lower of TBB or RCC $
TOTAL AVAILABLE $
Less Loans and Letters of Credit $
Outstanding
NET AVAILABLE $
</TABLE>
<TABLE>
SCHEDULE I TO THE BORROWING BASE
MISSISSIPPI CHEMICAL CORPORATION
CALCULATION OF ELIGIBLE ACCOUNTS RECEIVABLE
COMPUTATION AS OF _________________
<S> <C> <C>
A/R'S ON THE AGING SUMMARY AS OF (PRIOR MONTH END) $
ADDITIONS:
New Sales $
Miscellaneous $
Total Gross Additions $
DEDUCTIONS
Collections $
Discounts Allowed $
Credit Memos $
Miscellaneous $
Total Gross Deductions $
A/R'S ON THE AGING SUMMARY AS OF (COMPUTATION DATE) $
SUBTRACT INELIGIBLES
Ineligible Foreign Receivables $
Receivables with offsets in accounts payable $
Receivables 120 or more days from invoice date $
Government Receivables $
Other Ineligibles $
SUBTOTAL $
Receivables above allowed concentration limits $
TOTAL ELIGIBLE RECEIVABLES $
ACCOUNTS RECEIVABLE RECONCILIATION
<S> <C> <C>
ACCOUNTS RECEIVABLE ON AGING SUMMARY AS OF COMPUTATION DATE $
ADD (SUBTRACT) THE FOLLOWING ADJUSTMENTS TO THE AGING
SUMMARY
Non-Trade Receivables $
Swaps $
Payments posted after closing on A/R Subsidiary $
Credit balances reclassed to accounts payable $
Other: $
ACCOUNTS RECEIVABLE ON CONSOLIDATED BALANCE SHEET AS OF $
COMPUTATION DATE
</TABLE>
<TABLE>
MISSISSIPPI CHEMICAL CORPORATION
ACCOUNTS RECEIVABLE CONCENTRATION REPORT
COMPUTATION AS OF ___________________
<S> <C> <C> <C>
10 LARGEST OBLIGORS BALANCE CONCENTRATION EXCESS
LIMIT CONCENTRATION
$ $ $
TOTALS $ $ $
</TABLE>
<TABLE>
MISSISSIPPI CHEMICAL CORPORATION
FOREIGN ACCOUNTS REPORT
COMPUTATION AS OF __________________
<S> <C> <C> <C>
FOREIGN OBLIGORS ACCOUNT AMOUNT INSURED OR INELIGIBLE
BALANCE COVERED BY LOC'S AMOUNT
$ $ $
TOTALS $ $ $
</TABLE>
<TABLE>
SCHEDULE II TO THE BORROWING BASE
MISSISSIPPI CHEMICAL CORPORATION
CALCULATION OF ELIGIBLE PRODUCT INVENTORY
COMPUTATION AS OF ________________
<S> <C> <C>
Raw Materials (See attached) $
Work In Process $
Finished Products Inventory (See attached) $
Spare Parts Inventory $
TOTAL INVENTORIES ON CONSOLIDATED BALANCE SHEET AS OF $
COMPUTATION DATE
LESS:
Spare Parts Inventory $
Damaged or Obsolete Inventory $
Consignment Inventory not covered by Waiver $
Work in Process $
TOTAL ELIGIBLE PRODUCT INVENTORY $
</TABLE>
<TABLE>
SCHEDULE III TO THE BORROWING BASE
MISSISSIPPI CHEMICAL CORPORATION
CALCULATION OF ELIGIBLE SPARE PARTS INVENTORY
COMPUTATION AS OF ______________
<S> <C> <C> <C>
Spare Parts Inventory on Consolidated Balance Sheet as $
of (Prior Month End)
Additions $
Deductions $
Spare Parts Inventory on Consolidated Balance Sheet as $
of Computation Date
Appraised Value of Spare Parts Inventory $
Lesser of two values above $
Less:
Damaged or obsolete parts $
Inventory not covered by waivers $
TOTAL ELIGIBLE SPARE PARTS INVENTORY $
</TABLE>
<TABLE>
SCHEDULE IV TO THE BORROWING BASE
MISSISSIPPI CHEMICAL CORPORATION
CALCULATION OF ELIGIBLE SPARE PARTS INVENTORY
COMPUTATION AS OF ______________
<S> <C>
CALCULATION 1
(a) Total Consolidated Assets of Mississippi Chemical $
Corporation
(b) Less: Intangible Assets $
(c) Consolidated Net Tangible Assets $
(d) Advance Rate 15%
(e) B Loan Availability Reserve $
(f) AVAILABILITY BASED ON CONSOLIDATED NET TANGIBLE ASSETS $
(PRODUCT OF LINES (C) AND (D) LESS LINE (E))
CALCULATION 2
Appraised In-Place Value of Principal Properties $
Advance Rate 50%
AVAILABILITY BASED ON PRINCIPAL PROPERTIES $
LOWER OF CALCULATION 1 AND 2 $
</TABLE>
<TABLE>
SCHEDULE V TO THE BORROWING BASE
MISSISSIPPI CHEMICAL CORPORATION
CALCULATION OF NON-PRINCIPAL PROPERTIES IN BORROWING BASE
COMPUTATION AS OF _______________
<S> <C>
Appraised Orderly Liquidation Value of Non-Principal $
Properties
Advance Rate 75%
Availability Based on Non-Principal Properties $
Maximum of $20,000 $20,000
LOWER OF AVAILABILITY OR MAXIMUM $
</TABLE>
<PAGE>
EXHIBIT R
MISSISSIPPI CHEMICAL CORPORATION
SECURITY AGREEMENT
This Security Agreement (the "Agreement") is dated as of February 24,
2000, by and among Mississippi Chemical Corporation, a Mississippi corporation
(the "Borrower"), and MissChem Nitrogen, L.L.C., a Delaware limited liability
company ("MissChem LLC") and Mississippi Nitrogen, Inc., a Delaware corporation
("Mississippi Nitrogen"; MissChem LLC and Mississippi Nitrogen, together with
their successors and assigns, being collectively referred to herein as the
"Guarantors"), and the other parties executing this Agreement under the heading
"Debtors" (the Borrower, the Guarantors and such other parties, along with any
parties who execute and deliver to the Agent an agreement substantially in the
form attached hereto as Schedule C, being hereinafter referred to collectively
as the "Debtors" and individually as a "Debtor"), each with its mailing address
as set forth on its signature page hereto, and Harris Trust and Savings Bank,
an Illinois banking corporation ("HTSB"), with its mailing address at 111 West
Monroe Street, Chicago, Illinois 60603, acting as administrative agent
hereunder for the Secured Creditors hereinafter identified and defined (HTSB
acting as such administrative agent and any successor or successors to HTSB
acting in such capacity being hereinafter referred to as the "Agent");
P R E L I M I N A R Y S T A T E M E N T S
A. The Borrower and HTSB, individually and as administrative agent, have
entered into a Credit Agreement dated as of November 25, 1997 (such Credit
Agreement as the same has been and hereafter may be amended, modified or
restated from time to time being hereinafter referred to as the "Credit
Agreement"), pursuant to which HTSB and such other banks and financial
institutions from time to time party to the Credit Agreement (HTSB, in its
individual capacity, and such other banks and financial institutions being
hereinafter referred to collectively as the "Lenders" and individually as a
"Lender") have agreed, subject to certain terms and conditions, to extend a
revolving credit facility to the Borrower in an aggregate principal amount not
to exceed $200,000,000 at any one time outstanding and which will be available
to the Borrower in the form of loans and letters of credit (the Agent and the
Lenders being hereinafter referred to collectively as the "Secured Creditors"
and individually as a "Secured Creditor").
B. The loans made to the Borrower under the Credit Agreement are
classified as A Loans and B Loans (each as defined in the Credit Agreement).
C. The Borrower and the other Debtors may from time to time enter into
one or more interest rate exchange, swap, cap, collar, floor or other similar
agreements, one or more commodity swaps or other similar agreements and one or
more foreign currency contracts, currency swap contracts or other similar
agreements with one or more of the Lenders party to the Credit Agreement, or
their affiliates, for the purpose of hedging or otherwise protecting the
Borrower against interest rate, commodity and foreign currency exposure (the
liability of the Borrower and the other Debtors in respect of such agreements
with such Lenders and their affiliates being hereinafter referred to as the
"Hedging Liability").
D. As a condition to continuing to extend credit to the Borrower under
the Credit Agreement, the Secured Creditors have required, among other things,
that each Debtor grant to the Agent for the benefit of the Secured Creditors a
lien on and security interest in the personal property of such Debtor described
herein subject to the terms and conditions hereof.
E. The Borrower owns, directly or indirectly, equity interests in each
other Debtor and provides each other Debtor with financial, management,
administrative, technical support and other similar services pursuant to a
management services agreement which enables such Debtor to conduct its business
in an orderly and efficient manner in the ordinary course.
F. Each Debtor will benefit, directly or indirectly, from credit and
other financial accommodations extended by the Secured Creditors to the
Borrower.
NOW, THEREFORE, for and in consideration of the execution and delivery by
the Secured Creditors of the Credit Agreement, and other good and valuable
consideration, receipt whereof is hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Terms defined in Credit Agreement. All capitalized terms used
herein without definition shall have the same meanings herein as such terms
have in the Credit Agreement. The term "Debtor" and "Debtors" as used herein
shall mean and include the Debtors collectively and also each individually,
with all grants, representations, warranties and covenants of and by the
Debtors, or any of them, herein contained to constitute joint and several
grants, representations, warranties and covenants of and by the Debtors;
provided, however, that unless the context in which the same is used shall
otherwise require, any grant, representation, warranty or covenant contained
herein related to the Collateral shall be made by each Debtor only with respect
to the Collateral owned by it or represented by such Debtor as owned by it.
Section 2. Grant of Security Interest in the Collateral; Obligations
Secured. (a) Each Debtor hereby grants to the Agent for the benefit of the
Secured Creditors a lien on and security interest in, and right of set-off
against, and acknowledges and agrees that the Agent has and shall continue to
have for the benefit of the Secured Creditors a continuing lien on and security
interest in, and right of set-off against, any and all right, title and
interest of each Debtor, whether now owned or existing or hereafter created,
acquired or arising, in and to the following:
(i) Receivables. All Receivables, whether now owned or existing
or hereafter created, acquired or arising, and however evidenced or acquired,
or in which such Debtor now has or hereafter acquires any rights (the term
"Receivables" means and includes all accounts, accounts receivable, contract
rights, instruments, notes, drafts, acceptances, documents, chattel paper, any
right of such Debtor to payment for goods sold or leased or for services
rendered, whether or not earned by performance, and all other forms of
obligations owing to such Debtor, and all of such Debtor's rights to any
merchandise or other goods (including without limitation any returned or
repossessed goods and the right of stoppage in transit) which is represented
by, arises from or is related to any of the foregoing, and all such Debtor's
right to receive and collect all charter hire, income, revenues, issues and
profits and other payments, tenders and security under any charter, lease or
other agreement for the use or possession of any barge or other vessel);
(ii) General Intangibles. All General Intangibles, whether now
owned or existing or hereafter created, acquired or arising, or in which such
Debtor now has or hereafter acquires any rights (the term "General Intangibles"
means and includes all general intangibles, all patents, patent applications,
patent licenses, trademarks, trademark registrations, trademark licenses, trade
styles, trade names, copyrights, copyright registrations, copyright licenses
and other licenses and similar intangibles, all customer, client and supplier
lists (in whatever form maintained), all rights in leases and other agreements
relating to real or personal property, all causes of action and tax refunds of
every kind and nature, all privileges, franchises, immunities, licenses,
permits and similar intangibles, and all other personal property (including
things in action) not otherwise covered by this Agreement);
(iii) Inventory. All Inventory, whether now owned or existing or
hereafter created, acquired or arising, or in which such Debtor now has or
hereafter acquires any rights and all documents of title at any time evidencing
or representing any part thereof (the term "Inventory" means and includes all
inventory, farm products, and other goods which are held for sale or lease or
are to be furnished under contracts of service or consumed in such Debtor's
business, all goods which are raw materials, work-in-process, finished goods,
materials or supplies of every kind and nature, in each case used or usable in
connection with the acquisition, manufacture, processing, supply, servicing,
storing, packing, shipping, advertising, selling, leasing or furnishing of such
goods, and any constituents or ingredients thereof, and all goods which are
returned or repossessed goods);
(iv) Equipment. All Equipment, whether now owned or existing or
hereafter created, acquired or arising, or in which such Debtor now has or
hereafter acquires any rights (the term "Equipment" means and includes all
equipment and other machinery, tools, furniture, furnishings, office equipment,
vehicles (including vehicles subject to a certificate of title law) and all
other goods now or hereafter used or usable in connection with such Debtor's
business, together with all parts (other than parts that are subject to a parts
pooling agreement), accessories and attachments relating to any of the
foregoing, but excluding fixtures);
(v) Investment Property. All Investment Property, whether now
owned or existing or hereafter created, acquired or arising, or in which such
Debtor now has or hereafter acquires any rights (the term "Investment Property"
means and includes all investment property and all other securities (whether
certificated or uncertificated), security entitlements, securities accounts,
commodity contracts, and commodity accounts, including all substitutions and
additions thereto, all dividends, distributions and sums distributable or
payable from, upon, or in respect of such property, and all rights and
privileges incident to such property), but excluding investments in (A) the
Bank for Cooperatives, Houston Ammonia Terminal, L.P., Precious Harvest,
Farmland MissChem Limited and FMCL Limited Liability Company, (B) MissChem
Trinidad Limited, MissChem (Barbados) SRL and MissChem Holdings Inc. to the
extent the ability of any Debtor that is an owner thereof to encumber its
equity interest therein is subject to any contractual prohibition, (C) any
joint ventures (or other investments) that are not Subsidiaries to the extent
the ability of any Debtor that is a joint venturer therein to encumber its
equity interests in such joint venture is subject to any contractual
prohibition, and (D) the capital stock, partnership interests, limited
liability company interests and all other equity interests of every type and
nature whatsoever in Significant Subsidiaries (as defined in the Senior Note
Indenture) of the Borrower and their subsidiaries;
(vi) Deposits and Property in Possession. All deposit accounts
(whether general, specific, matured or unmatured and in whatever currency
denominated) of such Debtor maintained with any of the Secured Creditors and
all sums now or hereafter on deposit therein or payable thereon, and any and
all other property and interests in property which now is or may from time to
time hereafter come into the possession, custody or control of any of the
Secured Creditors, or any agent of any of them, in any way and for any purpose
(whether for safekeeping, custody, pledge, transmission, collection or
otherwise);
(vii) Contract Rights. All Contract Rights, whether now owned or
existing or hereafter created, acquired or arising or in which such Debtor now
has or hereafter acquires any rights (the term "Contract Rights" means and
includes all rights under contracts, including all rights as consignor under
any contracts relating to the consignment of goods and all rights under supply
contracts, but excluding in any event rights under any agreement which by its
terms prohibits the security interest contemplated hereby or which would
terminate or give any other party the right to terminate such agreement by
reason of the security interest contemplated hereby);
(viii) Records. All supporting evidence and documents relating to
any of the above-described property, including, without limitation, computer
programs, disks, tapes and related electronic data processing media, and all
rights of such Debtor to retrieve the same from third parties, written
applications, credit information, account cards, payment records,
correspondence, delivery and installation certificates, invoice copies,
delivery receipts, notes and other evidences of indebtedness, insurance
certificates and the like, together with all books of account, ledgers and
cabinets in which the same are reflected or maintained, all whether now
existing or hereafter arising;
(ix) Accessions and Additions. All accessions and additions to
and substitutions and replacements of any and all of the foregoing, whether
now existing or hereafter arising; and
(x) Proceeds and Products. All proceeds and products of the
foregoing and all insurance of the foregoing and proceeds thereof, whether now
existing or hereafter arising;
all of the foregoing being herein sometimes referred to as the "Collateral",
provided, however, that in no event shall the Collateral include any Principal
Properties or any proceeds or products thereof. All terms which are used
herein which are defined in the Uniform Commercial Code of the State of
Illinois ("UCC") shall have the same meanings herein as such terms are defined
in the UCC, unless this Agreement shall otherwise specifically provide.
(b) This Agreement is made and given to secure, and shall secure, the
prompt payment and performance when due of (i) any and all indebtedness,
obligations and liabilities of the Debtors, and of any of them individually, to
the Secured Creditors, and to any of them individually, under or in connection
with or evidenced by the Credit Agreement, the Notes of the Borrower heretofore
or hereafter issued under the Credit Agreement and the obligations of the
Borrower to reimburse the Secured Creditors for the amount of all drawings on
all L/Cs issued pursuant to the Credit Agreement, and all other obligations of
the Borrowers under any and all applications for L/Cs, and any and all
liability of the Debtors, and of any of them individually, arising under or in
connection with or otherwise evidenced by agreements with any one or more of
the Secured Creditors or their affiliates with respect to any Hedging
Liability, and any and all liability of the Debtors, and of any of them
individually, arising under any guaranty issued by it relating to the foregoing
or any part thereof, in each case whether now existing or hereafter arising
(and whether arising before or after the filing of a petition in bankruptcy
and including all interest accrued after the petition date), due or to become
due, direct or indirect, absolute or contingent, and howsoever evidenced, held
or acquired, but excluding in every case the principal of and interest on the
B Loans and any amounts relating thereto (which shall not be entitled to the
security provided hereby) and (ii) any and all expenses and charges, legal or
otherwise, suffered or incurred by the Secured Creditors, and any of them
individually, in collecting or enforcing any of such indebtedness, obligations
and liabilities or in realizing on or protecting or preserving any security
therefor, including, without limitation, the lien and security interest granted
hereby (all of the indebtedness, obligations, liabilities, expenses and charges
described above being hereinafter referred to as the "Obligations"); provided,
however, that notwithstanding anything contained in this Agreement to the
contrary, in no event will this Agreement secure any indebtedness, obligation
and liabilities of the Borrower or any Guarantor on account of the principal
of and interest on the B Loans or any amounts relating thereto.
Notwithstanding anything in this Agreement to the contrary, the right of
recovery against any Debtor under this Agreement shall not exceed $1.00 less
than the lowest amount which would render such Debtor's obligations under this
Agreement void or voidable under applicable law, including fraudulent
conveyance law.
Section 3. Covenants, Agreements, Representations and Warranties. The
Debtors hereby covenant and agree with, and represent and warrant to, the
Secured Creditors that:
(a) Each Debtor is duly organized, validly existing and in good
standing under the laws of the state of its incorporation or organization, is
the sole and lawful owner of the Collateral granted by it hereunder and has the
power and authority to enter into this Agreement and to perform each and all of
the matters and things herein provided for. Each Debtor's Federal tax
identification number is set forth under its name under Column 1 on Schedule A.
(b) Each Debtor's respective chief executive office is at the
location listed under Column 2 on Schedule A attached hereto opposite such
Debtor's name; and such Debtor has no other executive offices or places of
business other than those listed under Column 3 on Schedule A attached hereto
opposite such Debtor's name. The Collateral owned or leased by each Debtor is
and shall remain in such Debtor's possession or control at the locations listed
under Columns 2 and 3 on Schedule A attached hereto opposite such Debtor's name
(collectively for each Debtor, the "Permitted Collateral Locations"), except as
to any Collateral sold or otherwise disposed of in accordance with this
Agreement and Section 7.12 of the Credit Agreement. If for any reason any
Collateral is at any time kept or located at a location other than a Permitted
Collateral Location, the Agent shall nevertheless have and retain a lien on and
security interest therein. No Debtor shall move its chief executive office or
maintain a place of business at a location other than those specified under
Columns 2 or 3 on Schedule A or permit any Collateral to be located at a
location other than a Permitted Collateral Location, in each case without first
providing the Agent at least 30 days prior written notice of the Debtor's
intent to do so; provided that each Debtor shall at all times maintain its
chief executive office, places of business, and Permitted Collateral Locations
in the United States of America and, with respect to any new chief executive
office or place of business or location of Collateral, such Debtor shall have
taken all action reasonably requested by the Agent to maintain the lien and
security interest of the Agent in the Collateral at all times fully perfected
and in full force and effect.
(c) The Collateral and every part thereof is and shall be free
and clear of all security interests, liens (including, without limitation,
mechanics', laborers' and statutory liens), attachments, levies and
encumbrances of every kind, nature and description and whether voluntary or
involuntary, except for the lien and security interest of the Agent therein
and other Liens permitted by Section 7.9 of the Credit Agreement (herein, the
"Permitted Liens"). Each Debtor shall warrant and defend the Collateral
against any claims and demands of all persons at any time claiming the same or
any interest in the Collateral adverse to any of the Secured Creditors.
(d) Each Debtor will promptly pay when due all taxes, assessments
and governmental charges and levies upon or against it or its Collateral, in
each case before the same become delinquent and before penalties accrue
thereon, unless and to the extent that the same are being contested in good
faith by appropriate proceedings which prevent attachment of any Lien resulting
therefrom to, foreclosure on or other realization upon any Collateral and
preclude interference with the operation of its business in the ordinary course
and such Debtor shall have established adequate reserves therefor.
(e) Each Debtor agrees it will not waste or destroy the
Collateral or any part thereof and will not be negligent in the care or use of
any Collateral. Each Debtor agrees it will not use, manufacture, sell or
distribute any Collateral in violation of any statute, ordinance or other
governmental requirement applicable to such Debtor which would have a material
adverse effect on any Secured Creditor's rights under this Agreement or on the
value of the Collateral or on any Debtor's ability to use any of the Collateral
in the ordinary course of its business (a "Material Adverse Effect"). Each
Debtor will perform in all material respects its obligations under any contract
or other agreement constituting part of the Collateral, it being understood
and agreed that the Secured Creditors have no responsibility to perform such
obligations.
(f) Subject to Sections 4(d), 5(a), 6(b), 6(c), and 7(c) hereof
and the terms of the Credit Agreement (including, without limitation, Section
7.12 thereof), each Debtor agrees it will not, without the Agent's prior
written consent, sell, assign, mortgage, lease or otherwise dispose of the
Collateral or any interest therein.
(g) Each Debtor will insure its Collateral which is insurable
against such risks and hazards as other companies similarly situated insure
against, and including in any event loss or damage by fire, theft, burglary,
pilferage, and loss in transit, in amounts and under policies containing loss
payable clauses to the Agent as its interest may appear (and, if the Agent
requests, naming the Agent as additional insured therein) by insurers
reasonably acceptable to the Agent. All premiums on such insurance shall be
paid by the Debtors and the policies of such insurance (or certificates
therefor) delivered to the Agent. All insurance required hereby shall provide
that any loss shall be payable notwithstanding any act or negligence of the
relevant Debtor, shall provide that no cancellation thereof shall be effective
until at least 30 days after receipt by the relevant Debtor and the Agent of
written notice thereof, and shall be reasonably satisfactory to the Agent in
all other respects. In case of any material loss, damage to or destruction of
the Collateral or any part thereof in excess of $3,000,000, the relevant Debtor
shall promptly give written notice thereof to the Secured Creditors generally
describing the nature and extent of such damage or destruction. In case of
any loss, damage to or destruction of the Collateral or any part thereof, the
relevant Debtor, whether or not the insurance proceeds, if any, received on
account of such damage or destruction shall be sufficient for that purpose, at
such Debtor's cost and expense, will promptly repair, substitute or replace
the Collateral so lost, damaged or destroyed, except to the extent such
Collateral is not necessary to the conduct of such Debtor's business in the
ordinary course, or apply such proceeds to the prepayment of the Obligations.
In the absence of any Default or Event of Default, losses shall be payable to
and the relevant Debtor shall be entitled to retain such insurance proceeds
for the purpose of repairing, substituting or replacing the relevant
Collateral. During the existence of any Default or Event of Default, the
relevant Debtor will immediately pay over such proceeds of insurance to the
Agent which will thereafter be applied to the reduction of the Obligations
(whether or not then due) or held as collateral security therefor, as the Agent
may then determine and as otherwise provided for in the Credit Agreement. Each
Debtor hereby authorizes the Agent, at the Agent's option, to adjust,
compromise and settle any losses under any insurance afforded at any time
after the occurrence and during the continuation of any Event of Default, and
such Debtor does hereby irrevocably constitute the Agent, its officers, agents
and attorneys, as such Debtor's attorneys-in-fact, which appointment is coupled
with an interest, with full power and authority after the occurrence and during
the continuation of any Event of Default to effect such adjustment, compromise
and/or settlement and to endorse any drafts drawn by an insurer of the
Collateral or any part thereof and to do everything necessary to carry out
such purposes and to receive and receipt for any unearned premiums due under
policies of such insurance. Unless the Agent elects to adjust, compromise
or settle losses as aforesaid, any adjustment, compromise and/or settlement of
any losses under any insurance shall be made by the relevant Debtor subject to
final approval of the Agent (regardless of whether or not an Event of Default
shall have occurred) in the case of losses exceeding $3,000,000. All insurance
proceeds shall be subject to the lien and security interest of the Agent
hereunder.
(h) Each Debtor will at all times allow the Secured Creditors and
their respective representatives free access to and right of inspection of the
Collateral at such reasonable times and intervals as the Agent or any other
Secured Creditor may designate and, in the absence of any existing Default or
Event of Default, with reasonable prior written notice to the relevant Debtor.
(i) If any Collateral is in the possession or control of any
agents or processors of a Debtor and the Agent so requests, such Debtor agrees
to notify such agents or processors in writing of the Agent's security interest
therein and during the existence of a Default or an Event of Default, instruct
them to hold all such Collateral for the Agent's account and subject to the
Agent's instructions. Each Debtor will, upon the request of the Agent,
authorize and instruct all bailees and any other parties, if any, at any time
processing, labeling, packaging, holding, storing, shipping or transferring all
or any part of the Collateral to permit the Secured Creditors and their
respective representatives to examine and inspect any of the Collateral then in
such party's possession and to verify from such party's own books and records
any information concerning the Collateral or any part thereof which the Secured
Creditors or their respective representatives may seek to verify. As to any
premises not owned by a Debtor wherein any of the Collateral having an
aggregate value in excess of $500,000 at any location or $3,000,000 in the
aggregate for all locations is located, if any, such Debtor shall, upon the
Agent's request, take commercially reasonable measures designed to cause each
party having any right, title or interest in, or lien on, any of such premises
to enter into an agreement whereby such party disclaims any right, title and
interest in, and lien on, the Collateral, allowing the removal of such
Collateral by the Agent or its agents or representatives and otherwise in form
and substance reasonably acceptable to the Agent.
(j) Upon the Agent's request, each Debtor agrees from time to
time (but not more frequently than monthly as of such month's end) to deliver
to the Agent such evidence of the existence, identity and location of its
Collateral and of its availability as collateral security pursuant hereto
(including, without limitation, schedules describing all Receivables created
or acquired by such Debtor, copies of customer invoices or the equivalent and
original shipping or delivery receipts for all merchandise and other goods
sold or leased or services rendered by it, together with such Debtor's warranty
of the genuineness thereof, and reports stating the book value of its Inventory
and Equipment by major category and location), in each case as the Agent may
reasonably request. The Agent shall have the right to verify all or any part
of the Collateral in any manner, and through any medium, which the Agent
considers appropriate and reasonable, and each Debtor agrees to furnish all
assistance and information, and perform any acts, which the Agent may require
in connection therewith.
(k) Each Debtor will comply in all material respects with the
terms and conditions of any and all leases, easements, right-of-way agreements
and other agreements binding upon such Debtor or affecting the Collateral, in
each case which cover the premises wherein the Collateral is located, and any
orders, ordinances, laws or statutes of any city, state or other governmental
entity, department or agency having jurisdiction with respect to such premises
or the conduct of business thereon applicable to such Debtor which violation
would have a Material Adverse Effect.
(l) No Debtor has invoiced Receivables or otherwise transacted
business, and does not invoice Receivables or otherwise transact business,
under any trade names other than its name set forth on its signature page to
this Agreement or as otherwise set forth on Schedule B hereto. Each Debtor
agrees it will not change its name or transact business under any other trade
name, in each case without first giving the Agent at least 30 days prior
written notice of its intent to do so.
(m) Each Debtor agrees to execute and deliver to the Agent such
further agreements, assignments, instruments and documents, and to do all such
other things, as the Agent may reasonably deem necessary or appropriate to
assure the Agent its lien and security interest hereunder, including without
limitation, (i) executing such financing statements, effective financing
statements or other instruments and documents as the Agent may from time to
time reasonably require to comply with the UCC, the Food Security Act of 1985
as amended, and any other applicable law, and (ii) executing such patent,
trademark, and copyright agreements as the Agent may from time to time
reasonably require to comply with the filing requirements of the United States
Patent and Trademark Office and the United States Copyright Office. Each
Debtor hereby agrees that a carbon, photographic or other reproduction of this
Agreement or any such financing statement is sufficient for filing as a
financing statement or effective financing statement by the Agent without prior
notice thereof to such Debtor wherever the Agent deems necessary or desirable
to perfect or protect the security interest granted hereby. In the event for
any reason the law of any jurisdiction other than Illinois becomes or is
applicable to the Collateral or any part thereof, or to any of the Obligations,
each Debtor agrees to execute and deliver all such instruments and documents
and to do all such other things as the Agent deems necessary or appropriate to
preserve, protect and enforce the security interest of the Agent under the law
of such other jurisdiction.
(n) On failure of a Debtor to perform any of the covenants and
agreements herein contained, the Agent may, at its option, perform the same and
in so doing may expend such commercially reasonable sums as the Agent deems
advisable in the performance thereof, including, without limitation, the
payment of any insurance premiums, the payment of any taxes, liens and
encumbrances, expenditures made in defending against any adverse claims, and
all other expenditures which the Agent may be compelled to make by operation
of law or which the Agent may make by agreement or otherwise for the protection
of the security hereof. All such sums and amounts so expended shall be
repayable by such Debtor immediately upon demand, shall constitute additional
Obligations secured hereunder, and shall bear interest from the date said
amounts are expended at the rate per annum (computed on the basis of a year of
365 or 366 days, as the case may be, for the actual number of days elapsed)
determined by adding 2% to the Base Rate from time to time in effect plus the
Applicable Margin for Base Rate Loans under the Revolving Credit, with any
change in such rate per annum as so determined by reason of a change in such
Base Rate to be effective on the date of such change in said Base Rate (such
rate per annum as so determined being hereinafter referred to as the "Default
Rate"). No such performance of any covenant or agreement by the Agent on
behalf of a Debtor, and no such advancement or expenditure therefor, shall
relieve any Debtor of any default under the terms of this Agreement or in any
way obligate any Secured Creditor to take any further or future action with
respect thereto. The Agent in making any payment hereby authorized may do so
according to any bill, statement or estimate procured from the appropriate
public office or holder of the claim to be discharged without inquiry into
the accuracy of such bill, statement or estimate or into the validity of any
tax assessment, sale, forfeiture, tax lien or title or claim. The Agent in
performing any act hereunder shall be the sole judge of whether the relevant
Debtor is required to perform the same under the terms of this Agreement so
long as the Agent makes such determination in good faith. The Agent is hereby
authorized to charge any depository or other account of any Debtor maintained
with any Secured Creditor for the amount of such sums and amounts so expended.
Section 4. Special Provisions Re: Receivables. (a) As of the time any
Receivable becomes subject to the security interest provided for hereby and at
all times thereafter, each Debtor shall be deemed to have warranted as to each
and all of its Receivables that all warranties of such Debtor set forth in this
Agreement are true and correct with respect to each such Receivable; that each
of its Receivable and all papers and documents relating thereto are genuine and
in all material respects what they purport to be; that each of its Receivable
is valid and existing and, if such Receivable is an account, arises out of a
bona fide sale of goods sold and delivered by such Debtor to, or in the process
of being delivered to, or out of and for services theretofore actually rendered
by such Debtor to, the account debtor named therein; and that no surety bond
was required or given in connection with such Receivable or the contracts or
purchase orders out of which the same arose.
(b) To the extent any Receivable or other item of Collateral is evidenced
by an instrument or chattel paper, each Debtor shall cause such instrument to
be pledged and delivered to the Agent; provided, however, that, prior to the
existence of a Default or Event of Default and thereafter until otherwise
required by the Agent or the Secured Creditors, a Debtor shall not be required
to deliver any such instrument or chattel paper if and only so long as the
aggregate unpaid principal balance of all such instruments and chattel paper
held by the Debtors and not delivered to the Agent under the Collateral
Documents is less than $1,000,000 at any one time outstanding.
(c) If any Receivable arises out of a contract with the United States of
America or any of its departments, agencies or instrumentalities, the relevant
Debtor agrees to, at the request of the Agent or the Secured Creditors, execute
whatever instruments and documents are required by the Agent in order that such
Receivable shall be assigned to the Agent and that proper notice of such
assignment shall be given under the federal Assignment of Claims Act (or any
successor statute) or any similar statute relating to the assignment of such
Receivables.
(d) Unless and until an Event of Default hereunder occurs and is
continuing, any merchandise or other goods which are returned by a customer or
account debtor or otherwise recovered may be resold by the relevant Debtor in
the ordinary course of its business as presently conducted in accordance with
Section 6(b) hereof; upon the occurrence and during the continuation of any
Event of Default hereunder, such merchandise and other goods shall be set aside
at the request of the Agent and held by such Debtor as trustee for the Secured
Creditors and shall remain part of the Collateral. Unless and until an Event
of Default hereunder occurs and is continuing, the relevant Debtor may settle
and adjust disputes and claims with its customers and account debtors, handle
returns and recoveries and grant discounts, credits and allowances in the
ordinary course of its business as presently conducted for amounts and on terms
which such Debtor in good faith considers advisable. Upon the occurrence and
during the continuation of any Event of Default hereunder, at the request of
the Agent, each Debtor shall notify the Agent promptly of all returns and
recoveries and at the Agent's request deliver any such merchandise or other
goods to the Agent. Upon the occurrence and during the continuation of any
Event of Default hereunder, at the Agent's request, each Debtor shall also
notify the Agent promptly of all disputes and claims and settle or adjust them
at no expense to the Secured Creditors hereunder, but no discount, credit or
allowance other than on normal trade terms in the ordinary course of business
as presently conducted shall be granted to any customer or account debtor and
no returns of merchandise or other goods shall be accepted by any Debtor
without the Agent's consent. The Agent may, at all times upon the occurrence
and during the continuation of any Event of Default hereunder, settle or
adjust disputes and claims directly with customers or account debtors for
amounts and upon terms which the Agent considers advisable.
(e) The Agent agrees that its security interest in any Receivables that
are sold by any Debtor pursuant to a Receivables Securitization Program
permitted by the Credit Agreement shall be automatically released upon such
sale; provided that any Receivables returned to any Debtor under a Receivables
Securitization Program shall be subject to the Agent's security interest
hereunder upon such return.
Section 5. Collection of Receivables. (a) Except as otherwise provided
in this Agreement and in the Credit Agreement, each Debtor shall make
collection of all of its Receivables and may use the same to carry on its
business in accordance with sound business practice and otherwise subject to
the terms hereof.
(b) Each Debtor hereby agrees that:
(i) all instruments and chattel paper at any time constituting
part of the Receivables (including any postdated checks) shall, upon receipt by
such Debtor, be immediately endorsed to and deposited with Agent; and
(ii) such Debtor shall instruct all of its customers and account
debtors to remit all payments in respect of its Receivables to a lockbox or
lockboxes under the sole custody and control of Agent and which are maintained
at post offices selected by the Agent.
(c) Upon the occurrence and during the continuation of any Default or
Event of Default hereunder, whether or not the Agent has exercised any or all
of its rights under other provisions of this Section 5, the Agent or its
designee may notify the relevant Debtor's customers and account debtors at any
time that Receivables have been assigned to the Agent or of the Agent's
security interest therein, and either in its own name, or such Debtor's name,
or both, demand, collect (including, without limitation, through a lockbox
analogous to that described in Section 5(b)(ii) hereof), receive, receipt for,
sue for, compound and give acquittance for any or all amounts due or to become
due on Receivables, and in the Agent's discretion file any claim or take any
other action or proceeding which the Agent may deem necessary or appropriate
to protect and realize upon the security interest of the Agent in the
Receivables.
(d) Subject to the provisions of the Credit Agreement, any proceeds of
Receivables or other Collateral transmitted to or otherwise received by the
Agent pursuant to any of the provisions of Sections 5(b) or 5(c) hereof may be
handled and administered by the Agent in and through a remittance account or
accounts maintained at the Agent or by the Agent at a commercial bank or banks
selected by the Agent (collectively the "Depositary Banks" and individually a
"Depositary Bank"), and each Debtor acknowledges that the maintenance of such
remittance accounts by the Agent is solely for the Agent's convenience and that
the Debtors do not have any right, title or interest in such remittance
accounts or any amounts at any time standing to the credit thereof. During
the existence of any Default or Event of Default, the Agent may apply all or
any part of any proceeds of Receivables or other Collateral received by it
from any source to the payment of the Obligations (whether or not then due and
payable), such applications to be made in such amounts, in such manner and
order and at such intervals as the Agent may from time to time in its
discretion determine in accordance with the terms of the Credit Agreement.
The Agent need not apply or give credit for any item included in proceeds of
Receivables or other Collateral until the Depositary Bank has received final
payment therefor at its office in cash or final solvent credits current at the
site of deposit acceptable to the Agent and the Depositary Bank as such.
However, if the Agent does permit credit to be given for any item prior to a
Depositary Bank receiving final payment therefor and such Depositary Bank
fails to receive such final payment or an item is charged back to the Agent or
any Depositary Bank for any reason, the Agent may at its election in either
instance charge the amount of such item back against any such remittance
accounts or any depository account of any Debtor maintained with any Secured
Creditor, together with interest thereon at the Default Rate. Concurrently
with each transmission by a Debtor of any proceeds of Receivables or other
Collateral to any such remittance account, upon the Agent's request, the
relevant Debtor shall furnish the Agent with a report in such form as Agent
shall reasonably require identifying the particular Receivable or such other
Collateral from which the same arises or relates. Each Debtor hereby
indemnifies the Secured Creditors from and against all liabilities, damages,
losses, actions, claims, judgments, and all reasonable costs, expenses,
charges and attorneys' fees suffered or incurred by any Secured Creditor
because of the maintenance of the foregoing arrangements described in this
Section 5(d); provided, however, that no Debtor shall be required to indemnify
any Secured Creditor for any of the foregoing to the extent they arise solely
from the gross negligence or willful misconduct of the person seeking to be
indemnified. The Secured Creditors shall have no liability or responsibility
to any Debtor for the Agent or any other Depositary Bank accepting any check,
draft or other order for payment of money bearing the legend "payment in full"
or words of similar import or any other restrictive legend or endorsement
whatsoever or be responsible for determining the correctness of any remittance.
Section 6. Special Provisions Re: Inventory and Equipment. (a) Each
Debtor shall at its own cost and expense take commercially reasonable measures
to maintain, keep and preserve its Inventory located at its facilities in good
and merchantable condition, subject to annual shrinkage not to exceed 5%, and
the Debtors shall take commercially reasonable measures designed to cause third
parties taking Inventory on consignment or storage to maintain, keep and
preserve such Inventory. Each Debtor shall keep and preserve its Equipment in
good repair, working order and condition, ordinary wear and tear excepted, and,
without limiting the foregoing, make all commercially reasonable, necessary and
proper repairs, replacements and additions to its Equipment so that the
efficiency thereof shall be preserved and maintained in all material respects.
(b) Each Debtor may, until an Event of Default has occurred and is
continuing and thereafter until otherwise notified by the Agent, use, consume
and sell the Inventory in the ordinary course of its business, but a sale in
the ordinary course of business shall not under any circumstance include any
transfer or sale in satisfaction, partial or complete, of a debt owing by such
Debtor, provided that a transfer or sale of Inventory as part of product swaps
or payment in kind transactions made in the ordinary course of business shall
not constitute a transfer or sale in satisfaction of a debt owing by a Debtor.
(c) Each Debtor may, until an Event of Default has occurred and is
continuing and thereafter until otherwise notified by the Agent, sell
(x) obsolete, worn out or unusable Equipment and (y) Equipment to the extent
permitted by Section 7.12 of the Credit Agreement.
(d) As of the time any Inventory or Equipment of a Debtor becomes subject
to the security interest provided for hereby and at all times thereafter, such
Debtor shall be deemed to have warranted as to any and all of such Inventory
and Equipment that all warranties of such Debtor set forth in this Agreement
are true and correct with respect to such Inventory and Equipment; that all of
such Inventory and Equipment is located at a location set forth pursuant to
Section 3(b) hereof.
(e) Upon the Agent's or the Secured Creditors' request and if the
aggregate value of all Collateral subject to a certificate of title law exceeds
$3,000,000, each Debtor shall at its own cost and expense cause the lien of the
Agent in and to any portion of its Collateral subject to a certificate of title
law to be duly noted on such certificate of title or to be otherwise filed in
such manner as is prescribed by law in order to perfect such lien and will
cause all such certificates of title and evidences of lien to be deposited with
the Agent.
(f) None of the Equipment is or will be attached to real estate in such a
manner that the same may become a fixture.
(g) If any of the Inventory is at any time evidenced by a document of
title, such document shall be promptly delivered by the relevant Debtor to the
Agent; provided, however, that prior to the existence of a Default or Event of
Default and thereafter until otherwise required by the Agent or the Secured
Creditors, a Debtor shall not be required to deliver any such document of title
if and only so long as the aggregate value of Inventory evidenced thereby that
have not been delivered to the Agent under the Collateral Documents is less
than $1,000,000 at any time.
Section 7. Special Provisions Re: Investment Property. (a) Unless and
until an Event of Default has occurred and is continuing and thereafter until
notified to the contrary by the Agent pursuant to Section 9(d) hereof:
(i) each Debtor shall be entitled to exercise all voting and/or
consensual powers pertaining to its Investment Property or any part thereof,
for all purposes not inconsistent with the terms of this Agreement, the Credit
Agreement or any other document evidencing or otherwise relating to any
Obligations; and
(ii) each Debtor shall be entitled to receive and retain all cash
dividends paid upon or in respect of its Investment Property.
(b) Certificates for all securities now or at any time constituting
Investment Property and part of the Collateral hereunder shall be promptly
delivered by the relevant Debtor to the Agent duly endorsed in blank for
transfer or accompanied by an appropriate assignment or assignments or an
appropriate undated stock power or powers, in every case sufficient to transfer
title thereto, including, without limitation, all stock received in respect of
a stock dividend or resulting from a split-up, revision or reclassification of
the Investment Property or any part thereof or received in addition to, in
substitution of or in exchange for the Investment Property or any part thereof
as a result of a merger, consolidation or otherwise. With respect to any
Investment Property held by a securities intermediary, commodity intermediary,
or other financial intermediary of any kind, the relevant Debtor shall execute
and deliver, and shall cause any such intermediary to execute and deliver, an
agreement among such Debtor, the Agent, and such intermediary in form and
substance satisfactory to the Agent which provides, among other things, for the
intermediary's agreement that it will comply with such entitlement orders, and
apply any value distributed on account of any Investment Property maintained in
an account with such intermediary, as directed by the Agent without further
consent by such Debtor. The Agent may, at any time after the occurrence and
during the continuation of an Event of Default at any time when the Obligations
are, or have been declared to be, due and payable in full, cause to be
transferred into its name or the name of its nominee or nominees any and all of
the Investment Property hereunder.
(c) Unless and until an Event of Default has occurred and is continuing,
each Debtor may sell or otherwise dispose of any of its Investment Property to
the extent permitted by the Credit Agreement, provided that no Debtor shall
sell or otherwise dispose of any capital stock or other equity interest in any
direct or indirect Subsidiary without the prior written consent of the Agent.
During the existence of any Event of Default, no Debtor shall sell all or any
part of the Investment Property without the prior written consent of the Agent.
(d) Each Debtor represents that on the date of this Agreement, none of
its Investment Property consists of margin stock (as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System) except to
the extent such Debtor has delivered to the Agent a duly executed and completed
Form U-1 with respect to such stock. If at any time the Investment Property or
any part thereof consists of margin stock, the relevant Debtor shall promptly
so notify the Agent and deliver to the Agent a duly executed and completed
Form U-1 and such other instruments and documents reasonably requested by the
Agent in form and substance satisfactory to the Agent.
Section 8. Power of Attorney. In addition to any other powers of
attorney contained herein, each Debtor hereby appoints the Agent, its nominee,
or any other person whom the Agent may designate as such Debtor's attorney-in-
fact, with full power during the existence of any Default or Event of Default
to sign such Debtor's name on verifications of accounts and other Collateral;
to send requests for verification of Collateral to such Debtor's customers,
account debtors and other obligors; to endorse such Debtor's name on any
checks, notes, acceptances, money orders, drafts and any other forms of payment
or security that may come into the Agent's possession; to endorse the
Collateral in blank or to the order of the Agent or its nominee; to sign such
Debtor's name on any invoice or bill of lading relating to any Collateral, on
claims to enforce collection of any Collateral, on notices to and drafts
against customers and account debtors and other obligors, on schedules and
assignments of Collateral, on notices of assignment and on public records; to
notify the post office authorities to change the address for delivery of such
Debtor's mail to an address designated by the Agent; to receive, open and
dispose of all mail addressed to such Debtor; and to do all things necessary
to carry out this Agreement. Each Debtor hereby ratifies and approves all acts
of any such attorney and agrees that neither the Agent nor any such attorney
will be liable for any acts or omissions nor for any error of judgment or
mistake of fact or law other than such person's gross negligence or willful
misconduct. The Agent may file one or more financing statements and/or
effective financing statements disclosing its security interest in any or all
of the Collateral without any Debtor's signature appearing thereon, and each
Debtor also hereby grants the Agent a power of attorney to execute any such
financing statements and/or effective financing statements, or amendments and
supplements to financing statements and/or effective financing statements, on
behalf of such Debtor without notice thereof to any Debtor. The foregoing
powers of attorney, being coupled with an interest, are irrevocable until the
Obligations have been fully paid and satisfied and the commitments of the
Lenders to extend credit to or for the account of the Borrower under the
Credit Agreement have expired or otherwise terminated.
Section 9. Defaults and Remedies. (a) The occurrence of any event or the
existence of any condition which is specified as an "Event of Default" under
the Credit Agreement shall constitute an "Event of Default" hereunder.
(b) Upon the occurrence and during the continuation of any Event of
Default, the Agent shall have, in addition to all other rights provided herein
or by law, the rights and remedies of a secured party under the UCC (regardless
of whether the UCC is the law of the jurisdiction where the rights or remedies
are asserted and regardless of whether the UCC applies to the affected
Collateral), and further the Agent may, without demand and, to the extent
permitted by applicable law, without advertisement, notice, hearing or process
of law, all of which each Debtor hereby waives to the extent permitted by
applicable law, at any time or times, sell and deliver any or all Collateral
held by or for it at public or private sale, at any securities exchange or
broker's board or at any Secured Creditor's office or elsewhere, for cash, upon
credit or otherwise, at such prices and upon such terms as the Agent deems
advisable, in its sole discretion. Upon the occurrence and during the
continuation of any Event of Default, in addition to any other right or
remedies set forth herein or by applicable law, the Agent may by written
demand direct any securities intermediary, commodities intermediary, or other
financial intermediary at any time holding any Investment Property, or any
issuer thereof, to deliver such Collateral, or any part thereof, to the Agent
and/or liquidate such Collateral, or any part thereof, and deliver the proceeds
thereof to the Agent. In the exercise of any such remedies, the Agent may
sell the Collateral as a unit even though the sales price thereof may be in
excess of the amount remaining unpaid on the Obligations. Also, if less than
all the Collateral is sold, the Agent shall have no duty to marshal or
apportion the part of the Collateral so sold as between the Debtors, or any of
them, but may sell and deliver any or all of the Collateral without regard to
which of the Debtors are the owners thereof. In addition to all other sums
due any Secured Creditor hereunder, each Debtor shall pay the Secured Creditors
all costs and expenses incurred by the Secured Creditors, including reasonable
attorneys' fees and court costs, in obtaining, liquidating or enforcing payment
of Collateral or the Obligations or in the prosecution or defense of any action
or proceeding by or against any Secured Creditor or any Debtor concerning any
matter arising out of or connected with this Agreement or the Collateral or the
Obligations, including, without limitation, any of the foregoing arising in,
arising under or related to a case under the United States Bankruptcy Code
(or any successor statute). Any requirement of reasonable notice shall be met
if such notice is personally served on or mailed, postage prepaid, to the
Debtors in accordance with Section 13(b) hereof at least 10 days before the
time of sale or other event giving rise to the requirement of such notice;
provided, however, no notification need be given to a Debtor if such Debtor
has signed, after an Event of Default hereunder has occurred, a statement
renouncing any right to notification of sale or other intended disposition.
The Agent shall not be obligated to make any sale or other disposition of the
Collateral regardless of notice having been given. Any Secured Creditor may
be the purchaser at any such sale. Each Debtor hereby waives all of its rights
of redemption from any such sale. Subject to mandatory provisions of
applicable law, the Agent may postpone or cause the postponement of the sale of
all or any portion of the Collateral by announcement at the time and place of
such sale, and such sale may, without further notice, be made at the time and
place to which the sale was postponed or the Agent may further postpone such
sale by announcement made at such time and place. In the event any of the
Collateral shall constitute restricted securities within the meaning of any
applicable securities laws, any disposition thereof in compliance with such
laws shall not render the disposition commercially unreasonable.
(c) Without in any way limiting the foregoing, upon the occurrence and
during the continuation of any Event of Default hereunder, the Agent shall have
the right, in addition to all other rights provided herein or by law, to take
physical possession of any and all of the Collateral and anything found
therein, the right for that purpose to enter without legal process any
premises where the Collateral may be found (provided such entry be done
lawfully), and the right to maintain such possession on the relevant Debtor's
premises (each Debtor hereby agreeing, to the extent it may lawfully do so, to
lease such premises without cost or expense to the Agent or its designee if
the Agent so requests) or to remove the Collateral or any part thereof to such
other places as the Agent may desire. Upon the occurrence and during the
continuation of any Event of Default hereunder, the Agent shall have the right
to exercise any and all rights with respect to deposit accounts of each Debtor
maintained with any Secured Creditor, including, without limitation, the right
to collect, withdraw and receive all amounts due or to become due or payable
under each such deposit account. Upon the occurrence and during the
continuation of any Event of Default hereunder, each Debtor shall, upon the
Agent's demand, assemble the Collateral and make it available to the Agent at a
place reasonably designated by the Agent. If the Agent exercises its right to
take possession of the Collateral, each Debtor shall also at its expense
perform any and all other steps requested by the Agent to preserve and protect
the security interest hereby granted in the Collateral, such as placing and
maintaining signs indicating the security interest of the Agent, appointing
overseers for the Collateral and maintaining Collateral records.
(d) Without in any way limiting the foregoing, upon the occurrence and
during the continuation of any Event of Default at any time when the
Obligations are, or have been declared to be, due and payable in full, all
rights of a Debtor to exercise the voting and/or consensual powers which it
is entitled to exercise pursuant to Section 7(a)(i) hereof and/or to receive
and retain the distributions which it is entitled to receive and retain
pursuant to Section 7(a)(ii) hereof, shall, at the option of the Agent, cease
and thereupon become vested in the Agent, which, in addition to all other
rights provided herein or by law, shall then be entitled solely and exclusively
to exercise all voting and other consensual powers pertaining to the Investment
Property and/or to receive and retain the distributions which such Debtor would
otherwise have been authorized to retain pursuant to Section 7(a)(ii) hereof
and shall then be entitled solely and exclusively to exercise any and all
rights of conversion, exchange or subscription or any other rights, privileges
or options pertaining to any Investment Property as if the Agent were the
absolute owner thereof including, without limitation, the rights to exchange,
at its discretion, any and all of the Investment Property upon the merger,
consolidation, reorganization, recapitalization or other readjustment of the
respective issuer thereof or upon the exercise by or on behalf of any such
issuer or the Agent of any right, privilege or option pertaining to any
Investment Property and, in connection therewith, to deposit and deliver any
and all of the Investment Property with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and conditions as
the Agent may determine.
(e) Without in any way limiting the foregoing, each Debtor hereby grants
to the Secured Creditors a royalty-free irrevocable license and right to use
all of such Debtor's patents, patent applications, patent licenses, trademarks,
trademark registrations, trademark licenses, trade names, trade styles, and
similar intangibles in connection with any foreclosure or other realization by
the Agent or the Secured Creditors on all or any part of the Collateral to the
extent permitted by law. The license and right granted the Secured Creditors
hereby shall be without any royalty or fee or charge whatsoever.
(f) Failure by the Agent to exercise any right, remedy or option under
this Agreement or any other agreement between any Debtor and the Agent or
provided by law, or delay by the Agent in exercising the same, shall not
operate as a waiver; and no waiver shall be effective unless it is in writing,
signed by the party against whom such waiver is sought to be enforced and then
only to the extent specifically stated. Neither any Secured Creditor, nor any
party acting as attorney for any Secured Creditor, shall be liable hereunder
for any acts or omissions or for any error of judgment or mistake of fact or
law other than their gross negligence or willful misconduct. The rights and
remedies of the Secured Creditors under this Agreement shall be cumulative and
not exclusive of any other right or remedy which any Secured Creditor may have.
(g) For purposes of executory process under applicable Louisiana law,
Debtors hereby acknowledge the Obligations, CONFESS JUDGMENT thereon and
consent that judgment be rendered and signed, whether during the court's term
or during vacation, in favor of the Agent, for the full amount of the
Obligations. Upon the occurrence of an Event of Default hereunder, and in
addition to all of its rights, powers and remedies under this Agreement and
applicable law, Agent may, at its option, cause all or any part of the
Collateral to be seized and sold under executory process or under writ of
fieri facias issued in execution of an ordinary judgment obtained upon the
Obligations, without appraisement to the highest bidder, for cash or under such
terms as Agent deems acceptable. Debtors hereby waive all and every
appraisement of the Collateral and waive and renounce the benefit of
appraisement and the benefit of all laws relative to the appraisement of the
Collateral seized and sold under executory or other legal process. Debtors
agree to waive, and do hereby specifically waive:
(i) the benefit of appraisement provided for in Articles 2332,
2336, 2723 and 2724, Louisiana Code of Civil Procedure, and all other laws
conferring such benefits;
(ii) the demand and three (3) days delay accorded by Articles 2639
and 2721, Louisiana Code of Civil Procedure;
(iii) the notice of seizure required by Articles 2293 and 2721,
Louisiana Code of Civil Procedure;
(iv) the three (3) days delay provided by Articles 2331 and 2722,
Louisiana Code of Civil Procedure;
(v) the benefit of the other provisions of Articles 2331, 2722
and 2723, Louisiana Code of Civil Procedure;
(vi) the benefit of the provisions of any other articles of
Louisiana Code of Civil Procedure not specifically mentioned above; and
(vii) all pleas of division and discussion with respect to the
Obligations.
In the event Agent elects, at its option, to enter suit via ordinaria on the
Obligations, in addition to the foregoing confession of judgment, Debtors
hereby waive citation, other legal process and legal delays and hereby consent
that judgment for the unpaid principal due on the Obligations, together with
interest, attorneys' fees, costs and other charges that may be due on the
Obligations, be rendered and signed immediately.
Pursuant to the authority contained in La. R.S.9:5136 through 9:5140.2,
Debtors and Agent do hereby expressly designate Agent or its designee to be
keeper or receiver ("Keeper") for the benefit of Agent, the Secured Creditors
or any assignee thereof, such designation to take effect immediately upon any
seizure of any of the Collateral under writ of executory process or under writ
of sequestration or fieri facias as an incident to an action brought by Agent.
The fees of the Keeper are hereby fixed at five percent (5%) of the amount due
or sued for or claimed or sought to be protected, preserved or enforced in the
proceeding for the recognition of the security interest created hereby, and the
payment of such fees shall be secured by the security interest in the
Collateral granted in this Agreement.
(h) In the event that the proceeds of any sale, collection or realization
of or upon Collateral by Agent are insufficient to pay all Obligations and any
other amounts to which Agent is legally entitled hereunder, Debtors shall be
liable for the deficiency, together with interest thereon as provided herein,
together with the costs of collection and the reasonable fees of any attorneys
employed by Agent to collect such deficiency.
Section 10. Application of Proceeds. The proceeds and avails of the
Collateral at any time received by the Agent upon the occurrence and during the
continuation of any Event of Default shall, when received by the Agent in cash
or its equivalent, be applied by the Agent in reduction of, or held as
collateral security for, the Obligations in accordance with the terms of the
Credit Agreement. The Debtors shall remain liable to the Secured Creditors for
any deficiency. Any surplus remaining after the full payment and satisfaction
of the Obligations shall be returned to the Borrower, as agent for the Debtors,
or to whomsoever the Agent reasonably determines is lawfully entitled thereto.
Section 11. Continuing Agreement. This Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect until all
of the Obligations, both for principal and interest, have been fully paid and
satisfied and the commitments of the Lenders to extend credit to or for the
account of the Borrower under the Credit Agreement have expired or otherwise
terminated. Upon such termination of this Agreement, the Agent shall, upon the
request and at the expense of the Debtors, forthwith release its security
interest hereunder.
Section 12. The Agent. In acting under or by virtue of this Agreement,
the Agent shall be entitled to all the rights, authority, privileges and
immunities provided in the Credit Agreement, all of which provisions of said
Credit Agreement (including, without limitation, Section 10 thereof) are
incorporated by reference herein with the same force and effect as if set
forth herein in their entirety. The Agent hereby disclaims any representation
or warranty to the other Secured Creditors or any other holders of the
Obligations concerning the perfection of the liens and security interests
granted hereunder or in the value of any of the Collateral.
Section 13. Miscellaneous. (a) This Agreement cannot be changed or
terminated orally. This Agreement shall create a continuing lien on and
security interest in the Collateral and shall be binding upon each Debtor, its
successors and assigns and shall inure, together with the rights and remedies
of the Secured Creditors hereunder, to the benefit of the Secured Creditors and
their successors and permitted assigns; provided, however, that no Debtor may
assign its rights or delegate its duties hereunder without the Agent's prior
written consent. Without limiting the generality of the foregoing, and subject
to the provisions of the Credit Agreement, any Lender may assign or otherwise
transfer any indebtedness held by it secured by this Agreement to any other
person, and such other person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or otherwise.
(b) All communications provided for herein shall be in writing, except as
otherwise specifically provided for hereinabove, and shall be deemed to have
been given or made, if to any Debtor when given to the Borrower in accordance
with Section 11.7 of the Credit Agreement, or if to any Secured Creditor, when
given to such party in accordance with Section 11.7 of the Credit Agreement.
(c) No Lender shall have the right to institute any suit, action or
proceeding in equity or at law for the foreclosure or other realization upon
any Collateral subject to this Agreement or for the execution of any trust or
power hereof or for the appointment of a receiver, or for the enforcement of
any other remedy under or upon this Agreement; it being understood and
intended that no one or more of the Lenders shall have any right in any manner
whatsoever to affect, disturb or prejudice the lien and security interest of
this Agreement by its or their action or to enforce any right hereunder, and
that all proceedings at law or in equity shall be instituted, had and
maintained by the Agent in the manner herein provided for the benefit of the
Secured Creditors.
(d) In the event that any provision hereof shall be deemed to be invalid
or unenforceable by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Agreement shall be construed
as not containing such provision, but only as to such jurisdictions where such
law or interpretation is operative, and the invalidity or unenforceability of
such provision shall not affect the validity of any remaining provisions
hereof, and any and all other provisions hereof which are otherwise lawful and
valid shall remain in full force and effect. Without limiting the generality
of the foregoing, in the event that this Agreement shall be deemed to be
invalid or otherwise unenforceable with respect to any Debtor, such invalidity
or unenforceability shall not affect the validity of this Agreement with
respect to the other Debtors.
(e) The lien and security interest herein created and provided for stand
as direct and primary security for the Obligations of the Borrower arising
under or otherwise relating to the Credit Agreement as well as for any of the
other Obligations secured hereby. No application of any sums received by the
Secured Creditors in respect of the Collateral or any disposition thereof to
the reduction of the Obligations or any part thereof shall in any manner
entitle any Debtor to any right, title or interest in or to the Obligations or
any collateral or security therefor, whether by subrogation or otherwise,
unless and until all Obligations have been fully paid and satisfied and all
agreements of the Secured Creditors to extend credit to or for the account of
the Borrower under the Credit Agreement have expired or otherwise terminated.
Each Debtor acknowledges that the lien and security interest hereby created
and provided are absolute and unconditional and shall not in any manner be
affected or impaired by any acts of omissions whatsoever of any Secured
Creditor or any other holder of any Obligations, and without limiting the
generality of the foregoing, the lien and security interest hereof shall not
be impaired by any acceptance by the Secured Creditors or any other holder of
any Obligations of any other security for or guarantors upon any of the
Obligations or by any failure, neglect or omission on the part of any Secured
Creditor or any other holder of any Obligations to realize upon or protect
any of the Obligations or any collateral or security therefor (including,
without limitation, impairment of collateral or failure to perfect security
interest in collateral). The lien and security interest hereof shall not in
any manner be impaired or affected by (and the Secured Creditors, without
notice to anyone, are hereby authorized to make from time to time) any sale,
pledge, surrender, compromise, settlement, release, renewal, extension,
indulgence, alteration, substitution, exchange, change in, modification or
disposition of any of the Obligations or of any collateral or security
therefor, or of any guaranty thereof, or of any instrument or agreement
setting forth the terms and conditions pertaining to any of the foregoing.
The Secured Creditors may at their discretion at any time grant credit to the
Borrower without notice to the other Debtors in such amounts and on such terms
as the Secured Creditors may elect (all of such to constitute additional
Obligations hereby secured) without in any manner impairing the lien and
security interest created and provided for herein. In order to realize hereon
and to exercise the rights granted the Secured Creditors hereunder and under
applicable law, there shall be no obligation on the part of any Secured
Creditor or any other holder of any Obligations at any time to first resort
for payment to the Borrower or to any other Debtor or to any guaranty of the
Obligations or any portion thereof or to resort to any other collateral,
security, property, liens or any other rights or remedies whatsoever, and the
Secured Creditors shall have the right to enforce this Agreement against any
Debtor or any of its Collateral irrespective of whether or not other
proceedings or steps seeking resort to or realization upon or from any of the
foregoing are pending.
(f) In the event the Secured Creditors shall at any time in their
discretion permit a substitution of Debtors hereunder or a party shall wish to
become a Debtor hereunder, such substituted or additional Debtor shall, upon
executing an agreement in the form attached hereto as Schedule C, become a
party hereto and be bound by all the terms and conditions hereof to the same
extent as though such Debtor had originally executed this Agreement and, in
the case of a substitution, in lieu of the Debtor being replaced. Any such
agreement shall contain information as to such Debtor necessary to update
Schedules A and B hereto with respect to it. No such substitution shall be
effective absent the written consent of Agent nor shall it in any manner
affect the obligations of the other Debtors hereunder.
(g) This Agreement shall be deemed to have been made in the State of
Illinois and shall be governed by, and construed in accordance with, the laws
of the State of Illinois (without regard to principles of conflicts of law).
The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning of any provision hereof.
(h) Each Debtor hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Northern District of Illinois and of any
Illinois state court sitting in Cook County, Illinois for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. Each Debtor irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been brought in an
inconvenient form.
(i) This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterpart signature pages, each
constituting an original, but all together one and the same agreement.
[SIGNATURE PAGES TO FOLLOW]
<PAGE>
IN WITNESS WHEREOF, each Debtor has caused this Agreement to be duly
executed and delivered as of the date first above written.
"DEBTORS"
MISSISSIPPI CHEMICAL CORPORATION
By /s/ Timothy A. Dawson
Name: Timothy A. Dawson
Title: Senior Vice President and
Chief Financial Officer
Address:
3622 Highway 49 East (39194)
P.O. Box 388
Yazoo City, MS 39194-0388
Attention: Corporate Secretary
Telephone: 662/751-2216
Telecopy: 662/751-2232
MISSCHEM NITROGEN, L.L.C.
By /s/ Timothy A. Dawson
Name: Timothy A. Dawson
Title: vice President of Finance
Address:
Highway 49 East (39194)
P.O. Box 1348
Yazoo City, MS 39194-1348
Attention: Secretary
Telephone: 662/751-2216
Telecopy: 662/751-2232
MISSISSIPPI NITROGEN, INC.
By /s/ Timothy A. Dawson
Name: Timothy A. Dawson
Title: Vice President and Treasurer
Address:
Highway 49 East (39194)
P.O. Box 1851
Yazoo City, MS 39194-1851
Attention: Secretary
Telephone: 662/751-2216
Telecopy: 662/751-2232
TRIAD NITROGEN, L.L.C.
By /s/ Timothy A. Dawson
Name: Timothy A. Dawson
Title: Vice President of Finance
Address:
Highway 49 East (39194)
P.O. Box 1328
Yazoo City, MS 39194-1328
Attention: Secretary
Telephone: 662/751-2216
Telecopy: 662/751-2232
TNI BARGE, INC.
By /s/ Timothy A. Dawson
Name: Timothy A. Dawson
Title: Vice President and Treasurer
Address:
Highway 49 East (39194)
P.O. Box 323
Yazoo City, MS 39194-0323
Attention: Secretary
Telephone: 662/751-2216
Telecopy: 662/751-2232
MISSISSIPPI PHOSPHATES CORPORATION
By /s/ Timothy A. Dawson
Name: Timothy A. Dawson
Title: Vice President of Finance and Treasurer
Address:
Highway 49 East (39194)
P.O. Box 986
Yazoo City, MS 39194-0986
Attention: Secretary
Telephone: 662/751-2216
Telecopy: 662/751-2232
MISSISSIPPI POTASH, INC.
By /s/ Timothy A. Dawson
Name: Timothy A. Dawson
Title: Vice President and Treasurer
Address:
Highway 49 East (39194)
P.O. Box 1914
Yazoo City, MS 39194-1914
Attention: Secretary
Telephone: 662/751-2216
Telecopy: 662/751-2232
EDDY POTASH, INC.
By /s/ Timothy A. Dawson
Name: Timothy A. Dawson
Title: Vice President and Treasurer
Address:
Highway 49 East (39194)
P.O. Box 1042
Yazoo City, MS 39194-1042
Attention: Secretary
Telephone: 662/751-2216
Telecopy: 662/751-2232
MISSISSIPPI CHEMICAL MANAGEMENT COMPANY
By /s/ Timothy A. Dawson
Name: Timothy A. Dawson
Title: Treasurer
Address:
Highway 49 East (39194)
P.O. Box 1534
Yazoo City, MS 39194-1534
Attention: Secretary
Telephone: 662/751-2216
Telecopy: 662/751-2232
MISSISSIPPI CHEMICAL COMPANY, L.P.
By: Mississippi Chemical Management Company
Its: General Partner
By /s/ Timothy A. Dawson
Name: Timothy A. Dawson
Title: Treasurer
Address:
Highway 49 East (39194)
P.O. Box 1545
Yazoo City, MS 39194-1545
Attention: Secretary
Telephone: 662/751-2216
Telecopy: 662/751-2232
MCC INVESTMENTS, INC.
By /s/ Timothy A. Dawson
Name: Timothy A. Dawson
Title: Vice President and Treasurer
Address:
P.O. Box 43
Liberty, TX 77575-0043
Attention: Secretary
Telephone: 662/751-2216
Telecopy: 662/751-2232
NSI LAND CORPORATION
By /s/ Timothy A. Dawson
Name: Timothy A. Dawson
Title: Vice President-Finance and Treasurer
Address:
Highway 49 East (39194)
P.O. Box 388
Yazoo City, MS 39194-0388
Attention: Secretary
Telephone: 662/751-2216
Telecopy: 662/751-2232
Accepted and agreed to in Chicago, Illinois as of the date first above
written.
HARRIS TRUST AND SAVINGS BANK, as Agent
By
Name__________________________________________
Title_________________________________________
Address:
111 West Monroe Street
Chicago, IL 60603
Attention: Agribusiness Division
Telephone: ______________
Telecopy: (312) 765-8095
<PAGE>
<TABLE>
SCHEDULE A
LOCATIONS
COLUMN 1 COLUMN 2 COLUMN 3
NAME OF DEBTOR CHIEF
(AND FEDERAL TAX EXECUTIVE ADDITIONAL PLACES
I.D. NUMBER) OFFICE OF BUSINESS
<S> <C> <C>
Mississippi Chemical 3622 Highway 49 East 39194 N/A
Corporation P.O. Box 388
Tax ID # 64-0292638 Yazoo City, MS 39194-0388
MissChem Nitrogen, LLC Highway 49 East (39194) 702 Levee Road
Tax ID # 64-0910763 P.O. Box 1348 Yazoo City, MS 39194
Yazoo City, MS 39194-1348
Mississippi Nitrogen, Inc. Highway 49 East (39194) N/A
Tax ID # 64-0354930 P.O. Box 1851
Yazoo City, MS 39194-1851
Triad Nitrogen, L.L.C. Highway 49 East (39194) 39041 Highway 18 West
Tax ID # 64-0910788 P.O. Box 1328 P.O. Box 310
Yazoo City, MS 39194-1328 Donaldsonville,LA 70346
TNI Barge, Inc. Highway 49 East (39194) N/A
Tax ID # 72-1388877 P.O. Box 323
Yazoo City, MS 39194-0323
Mississippi Phosphates Highway 49 East (39194) IMC (Swapout)
Corporation P.O. Box 986 Donaldson, LA
Tax ID # 64-0794981 Yazoo City, MS 39194-0986 601 Industrial Road
(39567)
P.O. Box 848
Pascagoula, MS 39568-0848
Mississippi Potash, Inc. Highway 49 East (39194) Arkansas River Terminal
Tax ID # 64-0830948 P.O. Box 1914 9001 Linsey Road
Yazoo City, MS 39194-1914 Little Rock, AR 72206
Bakersfield Quality
Distribution Center,Inc.
32535 7th Standard Rd.
Bakersfield, CA
93380-1557
Verdegaal Bros., Inc.
13555 S. 11th Avenue
Hanford, CA 93230
LPC Packing, Inc.
1203 Report Ave.
Stockton, CA 95205
Mississippi Potash, Inc.
c/o Cahokia Marine Serv.
East St. Louis, IL 62201
Bunge Corp.
187 Port Rd.
Mermentau, LA 70556
AGRI Services of
Brunswick, LLC
Hwy 24 West
Brunswick, MO 65236
Mid-West Terminal
Warehouse Company
185 Woodswether Rd.
Kansas City, NO 64105
Norman Gillis, Jr. and
Associates
714 S. Magnolia
McComb, MS 39648
702 Levee Road
Yazoo City, MS 39194
210 Red Cloud
Carlsbad, NM 88220
AgriEmpresa, Inc.
3004 S. Canal
Carlsbad, NM 88220
1996 Potash Mines Road
(88220)
P.O. Box 101
Carlsbad, NM 88221-0101
State Highway 243
Carlsbad, NM 88220
MPI Storage Warehouse
El Paso, TX 79910
MPI Storage Boned
Warehouse (Mexico Whse)
El Paso, TX 79910-0085
Galveston Marine
Galveston, TX
MPI Storage Warehouse
Texas City, TX 77590-0001
Mississippi Potash, Inc.
c/o Cargill Inc.
Houston, TX 77001
MPI Storage Warehouse
c/o Southern Stevedores
Houston, TX 77001-0001
Mississippi Potash Inc.
Storage Warehouse
Eagle Pass, TX 78852
MPI Storage Warehouse
Laredo, TX 78044
EDDY Potash, Inc. Highway 49 East (39194) 3071 Potash Mines Road
Tax ID # 64-0877697 P.O. Box 1042 (88220)
Yazoo City, MS 39194-1042 P.O. Box 31
Carlsbad, NM 88221
Mississippi Chemical Highway 49 East (39194) N/A
Management Company P.O. Box 1534
Tax ID # 64-0877703 Yazoo City, MS 39194-1534
Mississippi Chemical Highway 49 East (39194) Alabama State Docks
Company, L.P. P.O. Box 1545 Inland Docks
Tax ID # 64-0877702 Yazoo City, MS 39194-1545 1210 State Docks Road
Eufaula, AL 36027
SIP Eufaula, AL
Alabama Farmers
Cooperative, Inc.
825 Walker Street
Montgomery, AL 36102
Alabama Farmers
Cooperative, Inc.
913 Somerville Rd.
Decatur, AL 35602
SIP Alabama Farmers
Cooperative, Inc.
913 Somerville Rd.
Decatur, AL 35603
Global Material Services,
LLC
4113 Emmett Sanders Rd.
Pinebluff, AR 71601
Farmland Industries, Inc.
824 North Palm
North Little Rock, AR
72114
North Little Rock, AR
Verdegaal Bros., Inc.
13555 S. 11th Ave.
Hanford, CA 93230
McKenzie Service Company,
Inc.
1025 Dickerson St.
Bainbridge, GA 31717
Diversified Ag Services,
Inc.
1600 North Jackson Street
Albany, GA 31701
SIP Albany, GA
Royster-Clark Agribusiness
Inc.
c/o Mount Vernon
1600 Bluff Rd.
Mount Vernon, IN
Royster-Clark Agribusiness
Inc.
c/o Port of Murray
1319 Corss Spann Rd.
Murray, KY
Bunge Corp
187 Port Rd.
Mermentau, LA 70556
39041 Hwy 18 West
Donaldsonville, LA 70346
Consignment,
Donaldsonville, LA
39041 Highway 310
Donaldsonville, LA 70346
Mississippi Chemical
Company, L.P.
c/o Oakley Louisiana Inc.
11210 Attaway Drive
Shreveport, LA 71115
Mississippi Chemical
Company, L.P.
Pro Boll Chem & Fert Co.
Inc.
Lake Providence, LA 71254
c/o IC Rail Marine
7790 La. Hwy 44
Convent, LA 70723
Royster-Clark Agribusiness
Inc.
c/o Interstates Marine
North Hwy 40
Boonville, MO
Jimmy Sanders, Inc.
Consignment
Rosedale Port Authority
Rosedale MS
Jimmy Sanders, Inc.
Consignment
Highway 1
Friars Point, MS
Jimmy Sanders, Inc.
Consignment
222 Ritchie Street
Clarksdale, MS 38614
Jimmy Sanders, Inc.
Consignment
10 Delta Dr.
Tchula, MS 39169
Jimmy Sanders, Inc.
Consignment
503 Silver City Road
Belzoni, MS 39038
Jimmy Sanders, Inc.
Consignment
Hwy 1 South
Mayersville, MS 39113
601 Industrial Road
Pascagoula, MS 39568-0848
2202 Highway 11 South
Meridian, MS 39304
Jimmy Sanders, Inc.
Consignment
405 South Second St.
Clarendon, AR 72029
Jimmy Sanders, Inc.
c/o Farmers Gin Property
40610 Hwy 45 South
Hamilton, MS 39746
Jimmy Sanders, Inc.
Consignment
Prairie Point Road East
Rt. 2, Box 42
Macon, MS 39341
Norman Gillis, Jr. and
Associates
714 S. Magnolia
McComb, MS 39648
Jimmy Sanders, Inc.
Consignment
686 Cumming Loop
Ecru, MS 38841
Jimmy Sanders, Inc.
Consignment
2029 Highway 49 East
Webb, MS
866 Highway 15 North
New Albany, MS 38652
MLP Storage Intransit
Vicksburg, MS 39180
Vicksburg Plant Food Inc.
1506 Fairgrounds Street
Vicksburg, MS 39191
Port of Vicksburg
c/o River Transportation
Vicksburg, MS 39181
703 Levee Road
Yazoo City, MS 39194
Highway 49 East
Yazoo City, MS 39194
Consignment
Yazoo City, MS
Jimmy Sanders, Inc.
Consignment
319 Haley Barbour Pkwy
Yazoo City, MS 39194
c/o Jimmy Sanders
Hwy 1 South
Mayersville, MS 39114
Royster-Clark Agribusiness
Inc.
c/o D.W. Dickey Terminal
1080 Elmwood St.
East Liverpool, OH
Royster-Clark Agribusiness
Inc.
717 Robinson Road
Washington Court House, OH
American Crop Services,
Inc.
315 West Martin Luther King
Dr.
Union City, TN 38261
Equalier, Inc.
P.O. Box 154578
Port Lavaca, TX 77979
Houston Ammonia Terminal
4403 Pasadena Freeway
Pasadena, TX 77501
Neches Industrial Park
#1 Gulf States Rd.
Beaumont, TX 77704
1502 Fort Worth Street
Liberty, TX 77575
MCC Investments, Inc. P.O. Box 43 N/A
Tax ID # 62-1711988 Liberty, TX 77575-0043
NSI Land Corporation Highway 49 East (39194) N/A
Tax ID # 64-0749158 P.O. Box 388
Yazoo City, MS 39194-0388
</TABLE>
<PAGE>
SCHEDULE B
TRADE NAMES
TRADE NAMES OF
NAME OF DEBTOR SUCH DEBTOR
All Debtors None
<PAGE>
SCHEDULE C
ASSUMPTION AND SUPPLEMENTAL SECURITY AGREEMENT
THIS AGREEMENT dated as of this _____ day of __________________, _____
from [NEW DEBTOR], a _______________ corporation (the "New Debtor"), to Harris
Trust and Savings Bank ("HTSB"), as agent for the Secured Creditors (defined
in the Security Agreement hereinafter identified and defined) (HTSB acting as
such agent and any successor or successors to HTSB in such capacity being
hereinafter referred to as the "Agent");
W I T N E S S E T H T H A T:
WHEREAS, Mississippi Chemical Corporation and certain other parties
(together the "Debtors") have executed and delivered to the Agent that certain
Security Agreement dated as of February 24, 2000 (such Security Agreement, as
the same may from time to time be amended, modified, or restated, including
supplements thereto which add additional parties as Debtors thereunder, being
hereinafter referred to as the "Security Agreement") pursuant to which such
parties (the "Existing Debtors") have granted to the Agent for the benefit of
the Secured Creditors a lien on and security interest in each such Existing
Debtor's Collateral (as such term is defined in the Security Agreement) to
secure the Obligations (as such term is defined in the Security Agreement); and
WHEREAS, the Borrower provides the New Debtor with substantial financial,
managerial, administrative, and technical support and the New Debtor will
directly and substantially benefit from credit and other financial
accommodations extended and to be extended by the Secured Creditors to the
Borrower;
NOW, THEREFORE, FOR VALUE RECEIVED, and in consideration of advances made
or to be made, or credit accommodations given or to be given, to the Borrower
by the Secured Creditors from time to time, the New Debtor hereby agrees as
follows:
1. The New Debtor acknowledges and agrees that it shall become a "Debtor"
party to the Security Agreement effective upon the date the New Debtor's
execution of this Agreement and the delivery of this Agreement to the Agent,
and that upon such execution and delivery, all references in the Security
Agreement to the terms "Debtor" or "Debtors" shall be deemed to include the New
Debtor. Without limiting the generality of the foregoing, the New Debtor hereby
repeats and reaffirms all grants (including the grant of a lien and security
interest), covenants, agreements, representations and warranties contained in
the Security Agreement as amended hereby, each and all of which are and shall
remain applicable to the Collateral from time to time owned by the New Debtor or
in which the New Debtor from time to time has any rights. Without limiting the
foregoing, in order to secure payment of the Obligations, whether now existing
or hereafter arising, the New Debtor does hereby grant to the Agent for the
benefit of itself and the other Secured Creditors, and hereby agrees that the
Agent has and shall continue to have for the benefit of itself and the other
Secured Creditors a continuing lien on and security interest in, among other
things, all of the New Debtor's Collateral (as such term is defined in the
Security Agreement), including, without limitation, all of the New Debtor's
Receivables, General Intangibles, Inventory and Farm Products, Equipment,
Investment Property, and all of the other Collateral described in Section 2 of
the Security Agreement, each and all of such granting clauses being
incorporated herein by reference with the same force and effect as if set
forth in their entirety except that all references in such clauses to the
Existing Debtors or any of them shall be deemed to include references to the
New Debtor. Nothing contained herein shall in any manner impair the priority
of the liens and security interests heretofore granted in favor of the Agent
under the Security Agreement.
2. Schedules A (Locations) and B (Trade Names) to the Security Agreement
shall be supplemented by the information stated below with respect to the New
Debtor:
<TABLE>
SUPPLEMENT TO SCHEDULE A
<S> <C> <C>
NAME OF DEBTOR CHIEF
(AND FEDERAL TAX EXECUTIVE ADDITIONAL PLACES
I.D. NUMBER) OFFICE OF BUSINESS
________________________ _________________________ _______________________
________________________ _________________________ _______________________
SUPPLEMENT TO SCHEDULE B
<S> <C>
TRADE NAMES OF
NAME OF DEBTOR SUCH DEBTOR
____________________________________ _____________________________________
</TABLE>
3. The New Debtor hereby acknowledges and agrees that the Obligations
are secured by all of the Collateral according to, and otherwise on and
subject to, the terms and conditions of the Security Agreement to the same
extent and with the same force and effect as if the New Debtor had originally
been one of the Existing Debtors under the Security Agreement and had
originally executed the same as such an Existing Debtor.
4. All capitalized terms used in this Agreement without definition shall
have the same meaning herein as such terms have in the Security Agreement,
except that any reference to the term "Debtor" or "Debtors" and any provision
of the Security Agreement providing meaning to such term shall be deemed a
reference to the Existing Debtors and the New Debtor. Except as specifically
modified hereby, all of the terms and conditions of the Security Agreement
shall stand and remain unchanged and in full force and effect.
5. The New Debtor agrees to execute and deliver such further instruments
and documents and do such further acts and things as the Agent may deem
necessary or proper to carry out more effectively the purposes of this
Agreement.
6. No reference to this Agreement need be made in the Security Agreement
or in any other document or instrument making reference to the Security
Agreement, any reference to the Security Agreement in any of such to be deemed
a reference to the Security Agreement as modified hereby.
7. This Agreement shall be governed by and construed in accordance with
the State of Illinois (without regard to principles of conflicts of law).
[NEW DEBTOR]
By_____________________________________________
Name___________________________________________
Title__________________________________________
Accepted and agreed to as of the date first above written.
HARRIS TRUST AND SAVINGS BANK, as Agent
By_____________________________________________
Name___________________________________________
Title__________________________________________
<PAGE>
EXHIBIT S
MISSISSIPPI CHEMICAL CORPORATION
SECURITY AGREEMENT RE: AIRCRAFT
This Security Agreement Re: Aircraft (the "Agreement") dated as of
February 24, 2000 by and between Mississippi Chemical Corporation, a
Mississippi corporation with its mailing address at 3622 Highway 49 East, Yazoo
City, Mississippi 39194 (the "Company"), and Harris Trust and Savings Bank, an
Illinois banking corporation with its mailing address at 111 West Monroe
Street, Chicago, Illinois 60690 (hereinafter referred to as "Harris"), for
itself and as agent hereunder for the Lenders hereinafter identified and
defined (said Harris Trust and Savings Bank acting as such agent and any
successor or successors to said Bank in such capacity being hereinafter
referred to as the "Agent");
W I T N E S S E T H T H A T:
WHEREAS, the Company, the Agent and various lenders (such lenders and the
parties which from time to time hereafter become parties to the Credit
Agreement (as hereinafter defined) as lenders being hereinafter referred to as,
collectively, the "Lenders" and, individually, a "Lender") have entered into a
Credit Agreement dated as of November 25, 1997 (such Credit Agreement as the
same has been and hereafter may be modified or amended from time to time being
hereinafter referred to as the "Credit Agreement") pursuant to which such
Lenders have agreed, subject to certain terms and conditions, to extend a
revolving credit facility to the Company in an aggregate principal amount of
not to exceed $200,000,000 at any one time outstanding and which will be
available to the Company in the forms of loans and letters of credit; and
WHEREAS, the loans made to the Company under the Credit Agreement are
classified as A Loans and B Loans (each as defined in the Credit Agreement);
and
WHEREAS, the Company may from time to time enter into one or more interest
rate exchange, swap, cap, collar, floor or other similar agreements, one or
more commodity swaps or other similar arrangements, and one or more foreign
currency contracts, currency swap contracts or other similar agreements with
one or more of the Lenders party to the Credit Agreement, or their affiliates,
for the purpose of hedging or otherwise protecting the Company against interest
rate, commodity and foreign currency exposure, respectively (the liability of
the Company in respect of such agreements with such Lenders and their
affiliates being hereinafter referred to as the "Hedging Liability"); and
WHEREAS, as a condition precedent to continuing to extend the credit
facilities available to the Company under the Credit Agreement, the Lenders
have required, among other things, the Company grant to the Agent a lien on and
security interest in certain real and personal properties of the Company as
collateral security for such credit facilities pursuant to this Agreement and
various other instruments and documents;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. GRANT OF SECURITY INTEREST IN THE COLLATERAL.
Section 1.1. The Company hereby grants to Agent for the ratable benefit of
the Lenders a security interest in, and acknowledges and agrees that the Agent
has and shall continue to have for the ratable benefit of the Lenders a
continuing security interest in, any and all right, title and interest of the
Company, whether now existing or hereafter acquired or arising, in and to
certain aircraft, aircraft engines, related equipment, and other property
described as follows:
<TABLE>
A. Aircraft
FEDERAL AVIATION
ADMINISTRATION
MANUFACTURERS YEAR MANUFACTURERS REGISTRATION
NAME MANUFACTURED MODEL SERIAL NO. CERTIFICATE NO.
<S> <C> <C> <C> <C>
Raytheon Aircraft 1996 Beechjet RK-129 N129MC
Company 400A
Engines
MANUFACTURER'S
ENGINE NAME MODEL SERIAL NOS.
<S> <C> <C>
Pratt & Whitney JT15D PCE-JA0025
PCE-JA0026
(Each of said Engines is of 750 or more "rated take-off horsepower" or the
equivalent of such horsepower.)
B. Aircraft
FEDERAL AVIATION
ADMINISTRATION
MANUFACTURERS YEAR MANUFACTURERS REGISTRATION
NAME MANUFACTURED MODEL SERIAL NO. CERTIFICATE NO.
<S> <C> <C> <C> <C>
Raytheon 1991 Beechcraft BB-1395 N132MC
Aircraft King Air
Company B200
Engines
MANUFACTURER'S
ENGINE NAME MODEL SERIAL NOS.
<S> <C> <C>
Pratt & Whitney PT6A-42 PCE-94430
PCE-94431
(Each of said Engines is of 750 or more "rated take-off horsepower" or the
equivalent of such horsepower.)
Propellers
MANUFACTURER'S SERIAL
MANUFACTURER MODEL NOS
<S> <C> <C>
McCauley 3G FR34C 702 900690
900693
(Each of said Propellers is capable of absorbing 750 or more "rated take-off
horsepower" or the equivalent of such horsepower.)
together with any instruments, equipment (including without limitation,
navigation, communication and radar equipment), apparatus, assembly, part,
appurtenance or accessory of whatever description now or hereafter attached to
or incorporated or installed in the foregoing and all accessions and additions
to and substitutions and replacements of any of the foregoing and repairs
thereto, and all the rents, issues, income and profits of the foregoing, and
all proceeds and products of the foregoing and all insurance of the foregoing
and proceeds thereof, whether now existing or hereafter arising (all of the
foregoing being herein sometimes referred to as the "Collateral"). All such
instruments, equipment and apparatus, existing on the date hereof are listed on
Exhibit A hereto.
Section 1.2. This Agreement is made and given to secure, and shall secure,
the prompt payment and performance when due of (i) any and all indebtedness,
obligations and liabilities of the Company to the Lenders, and to any of them
individually, under or in connection with or evidenced by the Credit Agreement,
the Notes of the Company heretofore or hereafter issued under the Credit
Agreement and the obligations of the Company to reimburse the Lenders for the
amount of all drawings on all L/Cs issued pursuant to the Credit Agreement, and
all other obligations of the Company under any and all applications for L/Cs,
and any and all liability of the Company arising under or in connection with or
otherwise evidenced by agreements with any one or more of the Lenders or their
affiliates with respect to any Hedging Liability, and any and all liability of
the Company arising under any guaranty issued by it relating to the foregoing
or any part thereof, in each case whether now existing or hereafter arising
(and whether arising before or after the filing of a petition in bankruptcy and
including all interest accrued after the petition date), due or to become due,
direct or indirect, absolute or contingent, and howsoever evidenced, held or
acquired, but excluding in every case the principal of and interest on the B
Loans and any amounts relating thereto (which shall not be entitled to the
security provided hereby) and (ii) any and all expenses and charges, legal or
otherwise, suffered or incurred by the Agent and the Lenders, and any of them
individually, in collecting or enforcing any of such indebtedness, obligations
and liabilities or in realizing on or protecting or preserving any security
therefor, including, without limitation, the lien and security interest granted
hereby (all of the indebtedness, obligations, liabilities, expenses and charges
described above being hereinafter referred to as the "Secured Obligations");
provided, however, that notwithstanding anything contained in this Agreement to
the contrary, in no event will this Agreement secure any indebtedness,
obligation and liabilities of the Company on account of the principal of and
interest on the B Loans and any amounts relating thereto.
SECTION 2. COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES.
The Company hereby covenants and agrees with, and represents and warrants
to, the Agent and the Lenders as follows:
Section 2.1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Mississippi, is the sole
and lawful owner of the Collateral and has the power and authority to enter
into this Agreement and to perform each and all of the matters and things
herein provided for; and the execution and delivery of this Agreement, and the
observance and performance of any of the matters and things herein set forth,
will not violate or contravene any provision of Mississippi or Federal law or
of the articles of incorporation or by-laws of the Company or of any indenture,
loan agreement or other material agreement of or affecting the Company or any
of its properties.
Section 2.2. There are only two aircraft included in the Collateral
(collectively, the "Aircraft"). Each of the Aircraft is now and will be
permanently hangared or located at Hawkins Field, Jackson, Mississippi or at
any other location in the continental United States which the Agent has
approved in writing for that purpose (Hawkins Field or any such other location
being hereinafter referred to as a "Permitted Location"), and the Company will
not remove or permit any Aircraft to be removed from any Permitted Location for
any period in excess of 30 consecutive days (excluding days for which an
Aircraft is not in a Permitted Location because it is grounded for repairs or
safety measures) or remove or permit the Collateral to be removed outside the
continental limits of the United States (excluding Canada, Jamaica, Puerto
Rico, and Trinidad and Tobago to the extent the insurance required hereby
continues in full force and effect in those jurisdictions) without the prior
written consent of the Agent. The Company will not operate, use or locate any
Aircraft, any engine included in the Collateral (each, an "Engine"), or any
propeller included in the Collateral (each, a "Propeller"), or suffer any
Aircraft, any Engine or any Propeller to be operated, used or located (i) in
any area excluded from coverage by any insurance required by the terms of
Section 2.6 hereof or (ii) in any recognized or threatened area of hostilities,
as published by the Department of State of the United States of America. The
Company's chief executive office and principal place of business is now and
will be the address first stated above. The place where the Company's records
concerning the Collateral are kept is Hawkins Field, 567 West Ramp Road,
Jackson, Mississippi 39207. If and so long as any parts included in the
Collateral are removed from the Aircraft, any Engine or any Propeller, the
same will be located at a Permitted Location, unless necessary to be shipped
for repairs.
Section 2.3. Each Aircraft has been and will remain duly certified by the
Federal Aviation Administration as to type and airworthiness and is now and
will remain subject to one or more effective airworthiness certificates; and
the Company has and will continue to have permanent authority to operate each
Aircraft. Each Aircraft is entitled to be registered, and the Company will
register each Aircraft exclusively, in the name of the Company under the laws
of the United States, and will maintain such registration at all times in full
force and effect. The Company is, and at all times until the Secured
Obligations have been paid in full and this Agreement is no longer in effect
will continue to be, a citizen of the United States as defined in 49 U.S.C.
Section 40102(a)(15). Each of the Engines included in the Collateral is of 750
or more "rated take-off horsepower" or the equivalent of such horsepower, and
each of the Propellers included in the Collateral is capable of absorbing 750
or more "rated take-off horsepower" or the equivalent of such horsepower. The
Company will, at its own expense, place in the cockpit of each Aircraft in a
location reasonably adjacent to the airworthiness certificate of such Aircraft
a placard to the following effect: "Subject to a security interest in favor of
Harris Trust and Savings Bank, as Agent, Secured Party and Mortgagee".
Section 2.4. Except for the lien and security interest created by this
Agreement and liens permitted by Section 7.9 of the Credit Agreement, the
Company, as to the Collateral now owned is, and as to any Collateral hereafter
acquired will be, the owner thereof free from any lien, security interest,
encumbrance or other right, title or interest of any person, firm or
corporation, and the Company will defend the Collateral against all claims and
demands whatsoever of all persons at any time claiming the Collateral or any
interest therein adverse to the Agent or any Lender. Without limiting the
foregoing, there is no security agreement, financing statement or similar
notice executed by the Company now on file in any public office covering any
property of any kind which is part of the Collateral hereunder, or intended so
to be, in which the Company is named as or signs as debtor, and so long as any
amount remains unpaid on any Secured Obligations or this Agreement remains in
effect, the Company will not execute or authorize anyone to execute on its
behalf or file in any public office any security agreement, financing statement
or similar notice except this Agreement or other financing statement or similar
notice filed or to be filed with the Federal Aviation Administration or in any
other public office in respect of and for the lien and security interest in
the Agent hereby granted.
Section 2.5. The Company: (a) will maintain, preserve, and protect the
Collateral, will keep each Aircraft constituting a part thereof in airworthy
condition and repair (normal wear and tear excepted), and will replace any
worn, damaged or destroyed property constituting a part of the Collateral
necessary to maintain the Collateral in airworthy condition; (b) will
register, use, operate and control the Collateral in accordance with all
applicable statutes, laws, ordinances, and regulations, including without
limitation, all applicable rules and regulations of the Federal Aviation
Administration and the Civil Aeronautics Board, and will procure and maintain,
or cause to be procured and maintained, all necessary franchises, licenses,
permits and certificates necessary or appropriate to each of the Aircraft;
(c) will not use or permit the Collateral to be used for any unlawful purpose
or in any manner which might cause the Collateral or any part thereof to be
confiscated; (d) will not use or permit any Aircraft to be used for a purpose
for which such Aircraft is not designed or reasonably suitable; (e) will not
alter or otherwise modify an Aircraft, an Engine or a Propeller if such
alteration or modification materially diminishes the value, utility, condition
or airworthiness of such Aircraft, Engine or Propeller below its value,
utility, condition or airworthiness, as the case may be, immediately prior to
such alteration or modification, assuming such Aircraft, Engine or Propeller
was then in the condition and of the value and utility required to be
maintained by the terms of this Agreement; (f) will pay when due and before
any lien or penalty attaches, all known taxes, charges, and assessments now
or hereafter imposed upon the Collateral and will not suffer to exist any
mechanics', artisans' or other lien on the Collateral or any part thereof which
might be held equal or prior to the lien and security interest of the Agent
hereunder, provided, however, that nothing herein shall be deemed to require
the Company to pay or discharge or cause to be paid or discharged any tax,
assessment, lien, claim or charge, the validity or amount of which is being
contested in good faith by appropriate proceedings, unless the Collateral shall
be thereby subjected to forfeiture or sale; (g) will not without the written
consent of the Agent sell, assign, lease, create a security interest in,
encumber or otherwise dispose of all or any part of the Collateral, except to
the extent permitted by Sections 7.12 and 7.17 of the Credit Agreement; and
(h) will at any time, upon demand of the Agent or any Lender, furnish the Agent
or any such Lender with a report showing the location, condition, and use of
said Collateral and will exhibit to, and allow inspection of said Collateral
by, the Agent or any such Lender.
Section 2.6. The Company will insure the Collateral at all times, with an
insurance company or companies reasonably acceptable to the Agent, by aircraft
all-risk hull insurance (which shall apply to Collateral temporarily removed
from any Aircraft so insured) as well as fire (with extended coverage), theft
and physical damage insurance and aircraft property damage liability insurance,
aircraft passenger, baggage and cargo liability insurance, public liability and
property damage liability insurance (insuring against liability which the
Company or the Agent or any Lender might incur by reason of the operation of
the Collateral in, or over, any area), and insurance against such other risks
(including war risk coverage and expropriation and confiscation coverage), in
such amounts and under such policies as the Agent may from time to time
reasonably require. The Company shall cause such policies to name the Agent as
sole loss payee under a mortgagee's loss payable clause (in the case of
casualty insurance) and name the Lenders as additional insureds (in the case of
liability insurance). Such policies shall provide with respect to the Agent
that (i) none of the Agent's or Lenders' interests in such policies shall be
invalidated by any act or omission or breach of warranty of the Company or any
other named insured; (ii) no cancellation of or adverse material change to
such insurance shall be effective without 30 days' prior written notice to the
Agent or in the case of any war risk coverage, seven days (or such other period
as is then customary in the aircraft insurance industry) prior written notice
to the Agent; (iii) neither the Agent nor any Lender shall have any liability
for premiums, commissions, calls, assessments or advances with respect to such
policies; (iv) each such policy shall be primary without any right of
contribution from any other insurance carried by the Agent or the Lenders; and
(v) the insurers waive any rights of setoff, counterclaim, deduction or
subrogation against the Agent and the Lenders. Notwithstanding anything in the
foregoing to the contrary, the Company may self insure through deductibles or
otherwise with respect to each type of insurance required hereunder; provided,
however, that such self insurance does not exceed $500,000 per occurrence.
All premiums on such insurance shall be paid by the Company and the policies
of such insurance (or certificates therefor) delivered to the Agent. In case
of any material loss, damage to or destruction of the Collateral or any part
thereof, the Company shall promptly give written notice thereof to the Agent
and the Lenders generally describing the nature and extent of such damage or
destruction. In case of any loss, damage to or destruction of the Collateral
or any part thereof, the Company, whether or not the insurance proceeds, if
any, received on account of such damage or destruction shall be sufficient
for that purpose, at the Company's cost and expense, will promptly repair or
replace the Collateral so lost, damaged or destroyed, or apply such proceeds
to the payment of the Secured Obligations; provided, however, that the
Company need not repair or replace the Collateral so lost, damaged or
destroyed to the extent the failure to make such repair or replacement (i) is
desirable to the proper conduct of the business of the Company in the ordinary
course and otherwise in the best interest of the Company and (ii) would not
impair the rights and benefits under this Agreement of the Lenders. In the
absence of any event of default or any other event which with the passage of
time, the giving of notice or both, would constitute an event of default
hereunder, the Company shall be entitled to retain such insurance proceeds for
the purpose of repairing or replacing the relevant Collateral. In the event
the Company shall receive any proceeds of such insurance during the existence
of any event of default or event which with the passage of time, the giving of
notice or both, would constitute an event of default hereunder, the Company
will immediately pay over such proceeds to the Agent. The Company hereby
authorizes the Agent, upon the occurrence and during the continuation of any
event of default hereunder, at the Agent's option to adjust, compromise and
settle any losses under any insurance afforded, and the Company does hereby
irrevocably constitute the Agent, its officers, agents and attorneys, as its
attorneys-in-fact, with full power and authority, upon the occurrence and
during the continuation of any event of default hereunder, to effect such
adjustment, compromise and/or settlement and to endorse any drafts drawn by an
insurer of the Collateral or any part thereof and to do everything necessary to
carry out such purposes and to receive and receipt for any unearned premiums
due under policies of such insurance; but unless the Agent elects to adjust,
compromise or settle losses as aforesaid, such adjustment, compromise and/or
settlement shall be made by the Company, subject to final approval of the
Agent in the case of losses exceeding $1,000,000. Net insurance proceeds
received by the Agent under the provisions hereof or under any policy or
policies of insurance covering the Collateral or any part thereof shall be
applied to the reduction of the Secured Obligations (whether or not then due);
provided, however, that the Agent agrees, subject to the immediately following
sentence, to release such insurance proceeds to the Company for replacement or
restoration of the portion of the Collateral lost, damaged or destroyed
required by this Agreement to be so replaced or restored if, but only if,
(i) no event of default hereunder or any other event which with the passage of
time, the giving of notice or both, would constitute such an event of default,
shall have occurred or be continuing at the time of release, (ii) written
application for such release is received from the Company within 30 days of
receipt of such proceeds and (iii) the Agent has received evidence reasonably
satisfactory to it that the Collateral lost, damaged or destroyed has been or
will be replaced or restored to its condition immediately prior to the loss,
destruction or other event giving rise to the payment of such insurance
proceeds. All insurance proceeds shall be subject to the lien and security
interest of the Agent hereunder. If at any time when any Collateral owned or
operated by the Company is not covered by such insurance in violation of this
Agreement, the Company shall nevertheless promptly ground such Collateral and
will not permit the same to be flown until such insurance is in effect.
Section 2.7. The Company will and at its own expense, do, execute,
acknowledge and deliver all and every future acts, deeds, conveyances,
transfers and assurances necessary or proper for the perfection of the
security interest herein provided for in the Collateral, whether now owned or
hereafter acquired. Without limiting the foregoing, the Company will at its
own expense cause this Agreement and all security agreements supplemental
hereto, to be filed with the Federal Aviation Administration, and all
financing and continuation statements and similar notices required by
applicable law, at all times to be kept, recorded and filed at its own expense
in such manner and in such places as may be required by law in order to
preserve and protect the rights of the Agent and the Lenders hereunder.
Section 2.8. On failure of the Company to perform any of the covenants and
agreements herein contained, the Agent may, at its option, perform the same and
in so doing may expend such sums as the Agent may reasonably deem advisable in
the performance thereof, including without limitation the payment of any
insurance premiums, the payment of any taxes, liens and encumbrances,
expenditures made in defending against any adverse claim and all other
expenditures which the Agent may be compelled to make by operation of law or
which the Agent may make by agreement or otherwise for the protection of the
security hereof. All such sums and amounts so expended shall be repayable by
the Company immediately without notice or demand, shall constitute so much
additional Secured Obligations and shall bear interest from the date said
amounts are expended at the rate per annum (computed on the basis of a year of
365 or 366 days, as the case may be, for the actual number of days elapsed)
determined by adding 2% to the Base Rate (as defined in the Credit Agreement)
from time to time in effect plus the Applicable Margin (as defined in the
Credit Agreement) for Base Rate Loans under the Revolving Credit (as defined
in the Credit Agreement) (such rate per annum as so determined being
hereinafter referred to as the "Default Rate"). No such performance of any
covenant or agreement by the Agent on behalf of the Company and no such
advancement or expenditure therefor, shall relieve the Company of any default
under the terms of this Agreement. The Agent, in making any payment hereby
authorized may do so according to any bill, statement or estimate procured
from the appropriate public office or holder of the claim to be discharged
without inquiry into the accuracy of such bill, statement or estimate or into
the validity of any tax assessment, sale, forfeiture, tax lien or title or
claim. The Agent, acting reasonably and in good faith, in performing any act
hereunder, shall be the sole judge of whether the Company is required to
perform the same under the terms of this Agreement. The Agent is authorized
to charge any depository account of the Company maintained with the Agent for
the amount of such sums and amounts so expended by the Agent.
SECTION 3. POWER OF ATTORNEY.
In addition to any other powers of attorney contained herein, the Company
appoints the Agent, its nominee, or any other person whom the Agent may
designate as the Company's attorney in fact, with full power upon the
occurrence and during the continuation of any event of default hereunder, to
endorse the Company's name on any checks, notes, acceptances, money orders,
drafts or other forms of payment or security that may come into the Agent's
possession, to sign the Company's name on any certificate of ownership,
registration card, application therefor, affidavits, or documents necessary to
transfer title to any of the Collateral, to receive and receipt for all
licenses, registration cards and certificates of ownership, and on any notices
of assignment and on public records, and to do all things necessary to carry
out this Agreement. The Company hereby agrees that neither the Agent nor any
such attorney will be liable for any acts or omissions nor for any error of
judgment or mistake of fact or law other than their gross negligence or
willful misconduct. The foregoing power of attorney, being coupled with an
interest, is irrevocable until the Secured Obligations have been fully
satisfied. The Agent may file one or more security agreements and/or financing
statements disclosing its lien on and security interest in any or all of the
Collateral without the Company's signature appearing thereon, including without
limitation the filing of this Agreement and all security agreements
supplemental thereto with the Federal Aviation Administration. The Company
also hereby grants the Agent a power of attorney to execute any such financing
statement, or amendments and supplements thereto, on behalf of the Company
without notice thereof to the Company, which power of attorney is coupled with
an interest and is irrevocable until the Secured Obligations have been fully
satisfied.
SECTION 4. DEFAULTS AND REMEDIES.
Section 4.1. The occurrence of any event or the existence of any condition
which is specified as an Event of Default under the Credit Agreement shall
constitute an event of default hereunder.
Section 4.2. Upon the occurrence and during the continuation of any event
of default hereunder, the Agent shall have, in addition to all other rights
provided herein or by law, the rights and remedies of a secured party under the
Uniform Commercial Code of the State of Illinois (the "Code") (regardless of
whether the Code is the law of the jurisdiction where the rights or remedies
are asserted and regardless of whether the Code applies to the affected
Collateral), and further the Agent may, without demand and without
advertisement, notice, hearing or process of law, all of which the Company
hereby waives to the extent permitted by applicable law, at any time or times
and subject to any mandatory legal requirements, sell and deliver any or all
Collateral held by or for it at public or private sale, for cash, upon credit
or otherwise, at such prices and upon such terms as the Agent deems advisable,
in its sole discretion. In addition to all other sums due the Agent or any
Lender hereunder, the Company shall pay the Agent and any Lender all costs and
expenses reasonably incurred by the Agent or such Lender, including a
reasonable allowance for attorneys' fees and court costs, in obtaining,
liquidating or enforcing payment of Collateral or Secured Obligations or in
the prosecution or defense of any action or proceeding by or against the Agent,
such Lender or the Company concerning any matter arising out of or connected
with this Agreement or the Collateral or Secured Obligations, including
without limitation any of the foregoing arising in, arising under or related
to a case under the United States Bankruptcy Code. Any requirement of
reasonable notice shall be met if such notice is personally served on or
mailed, postage prepaid, to the Company in accordance with Section 8.2
hereof at least 10 days before the time of sale or other event giving rise to
the requirement of such notice; however, no notification need be given to the
Company if the Company has signed, after an event of default hereunder has
occurred, a statement renouncing any right to notification of sale or other
intended disposition. The Agent shall not be obligated to make any sale or
other disposition of the Collateral regardless of notice having been given.
The Agent or any Lender may be the purchaser at any such sale. The Company
hereby waives all of its rights of redemption from any such sale. Subject to
the provisions of applicable law, the Agent may postpone or cause the
postponement of the sale of all or any portion of the Collateral by
announcement at the time and place of such sale, and such sale may, without
further notice, be made at the time and place to which the sale was postponed
or the Agent may further postpone such sale by announcement made at such time
and place.
Section 4.3. Without in any way limiting the foregoing, the Agent shall
upon the occurrence and during the continuation of any event of default
hereunder have the right, in addition to all other rights provided herein or
by law, to take physical possession of any and all of the Collateral and
anything found therein, the right for that purpose to enter without legal
process any premises where the Collateral may be found (provided such entry be
done lawfully), and the right to maintain such possession on the Company's
premises (the Company hereby agreeing to lease warehouses to the Agent or its
designee if the Agent so requests) or to remove the Collateral or any part
thereof to such other places as the Agent may desire. Upon the occurrence
and during the continuation of any event of default hereunder, the Company
shall, upon the Agent's demand, assemble the Collateral and make it available
to the Agent at a place designated by the Agent. If the Agent exercises its
right to take possession of the Collateral, the Company shall also at its
expense perform any and all other steps requested by the Agent to preserve and
protect the security interest hereby granted in the Collateral.
Section 4.4. Failure by the Agent to exercise any right, remedy or option
under this Agreement or any other agreement between the Company and the Agent
or provided by law, or delay by the Agent in exercising the same, shall not
operate as a waiver; no waiver shall be effective unless it is in writing,
signed by the party against whom such waiver is sought to be enforced and then
only to the extent specifically stated. Neither the Agent, nor any Lender,
nor any party acting as attorney for the Agent or any Lender, shall be liable
hereunder for any acts or omissions or for any error of judgment or mistake of
fact or law other than their gross negligence or willful misconduct. The
rights and remedies of the Agent under this Agreement shall be cumulative and
not exclusive of any other right or remedy which the Agent or the Lenders may
have.
SECTION 5. APPLICATION OF PROCEEDS.
The proceeds and avails of the Collateral at any time received by the
Agent upon the occurrence and during the continuation of any event of default
hereunder shall, when received by the Agent in cash or its equivalent, be
applied by the Agent in reduction of the Secured Obligations as set forth in
Section 3.6 of the Credit Agreement. The Company shall remain liable to the
Agent and the Lenders for any deficiency in the Secured Obligations. Any
surplus remaining after the full payment and satisfaction of the Secured
Obligations shall be returned to the Company or to whomsoever a court of
competent jurisdiction shall determine to be entitled thereto.
SECTION 6. CONTINUING AGREEMENT.
This Agreement shall be a continuing agreement in every respect and shall
remain in full force and effect until all of the Secured Obligations, both for
principal and interest, have been fully paid and satisfied and any commitment
of any Lender to extend any credit to the Company under the Credit Agreement
shall have terminated and all of the letters of credit have by their terms
expired or been fully and indefeasibly secured with cash. Upon such
termination of this Agreement, the Agent shall, upon the request and at the
expense of the Company, forthwith release all its liens and security interests
hereunder.
SECTION 7. THE AGENT.
In acting under or by virtue of this Agreement, the Agent shall be
entitled to all the rights, authority, privileges and immunities provided in
Section 10 of the Credit Agreement, all of which provisions of said Section 10
are incorporated by reference herein with the same force and effect as if set
forth herein. The Agent hereby disclaims any representation or warranty to the
Lenders concerning the perfection of the security interest granted hereunder or
the value of the Collateral.
SECTION 8. MISCELLANEOUS.
Section 8.1. This Agreement cannot be changed or terminated orally. This
Agreement shall create a continuing security interest in the Collateral and
shall be binding upon the Company, its successors and assigns and shall inure,
together with the rights and remedies of the Agent hereunder, to the benefit of
the Agent and its successors and assigns; provided, however, that the Company
may not assign its rights or delegate its duties hereunder without the Agent's
prior written consent. Without limiting the generality of the foregoing, and
subject to the provisions of Sections 11.16 and 11.17 of the Credit Agreement,
any Lender may assign or otherwise transfer any indebtedness held by it secured
by this Agreement to any other person or entity, and such other person or
entity shall thereupon become vested with all the benefits in respect thereof
granted to such Lender herein or otherwise, subject, however, to the provisions
of the Credit Agreement. The Company hereby releases the Agent from any
liability for any act or omission relating to the Collateral or this Agreement,
except the Agent's gross negligence or willful misconduct.
Section 8.2. All communications provided for herein shall be in writing,
except as otherwise specifically provided for hereinabove, and shall be given
and deemed to have been made in accordance with Section 11.7 of the Credit
Agreement.
Section 8.3. No Lender shall have the right to institute any suit, action
or proceeding in equity or at law for the foreclosure of this Agreement or for
the execution of any trust or power hereof or for the appointment of a
receiver, or for the enforcement of any other remedy under or upon this
Agreement; it being understood and intended that no one or more of the Lenders
shall have any right in any manner whatsoever to affect, disturb or prejudice
the lien of this Agreement by its or their action or to enforce any right
hereunder, and that all proceedings at law or in equity shall be instituted,
had and maintained by the Agent in the manner herein provided and for the
ratable benefit of the Lenders.
Section 8.4. In the event that any provision hereof shall be deemed to be
invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Agreement shall be construed
as not containing such provision, but only as to such jurisdictions where such
law or interpretation is operative, and the invalidity of such provision shall
not affect the validity of any remaining provision hereof, and any and all
other provisions hereof which are otherwise lawful and valid shall remain in
full force and effect.
Section 8.5. This Agreement shall be deemed to have been made in the State
of Illinois and shall be governed by and construed in accordance with the laws
of the State of Illinois, without regard to principles of conflicts of laws.
All terms which are used in this Agreement which are defined in the Code shall
have the same meanings herein as said terms do in the Code unless this
Agreement shall otherwise specifically provide. The headings in this
instrument are for convenience of reference only and shall not limit or
otherwise affect the meaning of any provision hereof.
Section 8.6. This Agreement may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each constituting an
original, but all together one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed as of the date first above written.
MISSISSIPPI CHEMICAL CORPORATION
ATTEST:
By /s/ Timothy A. Dawson
----------------------------
Its Senior Vice President and
Chief Financial Officer
/s/ Rosalyn B. Glascoe
- ----------------------
Its Corporate Secretary
Accepted and agreed to in Chicago, Illinois as of the date first above
written.
HARRIS TRUST AND SAVINGS BANK, as Agent
By
___________________________________________
Its________________________________________
(All signatures must be in ink)
<PAGE>
EXHIBIT A
EXISTING INSTRUMENTS, EQUIPMENT AND APPARATUS
[See attached Appendix A]
<PAGE>
EXHIBIT T
FIRST PREFERRED FLEET MORTGAGE
Dated February 24, 2000
MADE AND GIVEN BY
TNI BARGE, INC.
TO
HARRIS TRUST AND SAVINGS BANK, AS AGENT
as Mortgagee
TABLE OF CONTENTS
SECTION HEADING PAGE
Parties 1
Recitals 1
SECTION 1. COVENANTS AND WARRANTIES 3
Section 1.1. Title to Vessels 3
Section 1.2. Documentation of Vessels 4
Section 1.3. Operation of Vessels 4
Section 1.4. Compliance with Applicable Laws 4
Section 1.5. Condition and Maintenance of Vessels 4
Section 1.6. Maintenance of Mortgage; Further Assurances 4
Section 1.7. Mortgagee's Right to Inspect 5
Section 1.8. Creation of Liens 5
Section 1.9. Insurance 5
Section 1.10.Requisition of Title to Vessels 7
Section 1.11.Deficiency Payments 7
Section 1.12.Payment of Taxes 8
Section 1.13.Payment of Indebtedness 8
Section 1.14.Maintenance of Existence, Etc. 8
Section 1.15.Merger, Consolidation, Etc. 8
Section 1.16.Liens Absolute, Etc 9
Section 1.17.Direct and Primary Security - No Subrogation 9
Section 1.18.Revolving Credit Loan 10
SECTION 2. DEFAULTS AND OTHER PROVISIONS 10
Section 2.1. Events of Default; Remedies 10
Section 2.2. Appointment of Receiver; Sale 11
Section 2.3. Waivers; Remedies Not Exclusive, Etc. 11
Section 2.4. Discontinued Proceedings 12
Section 2.5. Application of Proceeds 12
Section 2.6. General Powers of the Mortgagee 12
Section 2.7. Owner's Right to Possession 13
SECTION 3. MISCELLANEOUS 13
Section 3.1. Successors and Assigns 13
Section 3.2. Partial Invalidity 13
Section 3.3. Communications 13
Section 3.4. Release 14
Section 3.5. Headings 14
Section 3.6. No Waiver of Preferred Status 14
Section 3.7. Governing Law 14
Section 3.8. Discharge 14
Section 3.9. Agent 15
Signature Page 15
Acknowledgment
ATTACHMENTS TO FIRST PREFERRED FLEET MORTGAGE:
SCHEDULE 1 -- Description of Vessels
<PAGE>
Amount of Mortgage:
$200,000,000 plus interest and performance
of mortgaged covenants
FIRST PREFERRED FLEET MORTGAGE
THIS FIRST PREFERRED FLEET MORTGAGE, dated February 24, 2000 (as same may
hereafter be amended or supplemented, being herein called the "Mortgage"), made
and given by TNI Barge, Inc., a Delaware corporation, whose post office address
is P.O. Box 323, Yazoo City, Mississippi 39194-0323 (the "Owner"), to Harris
Trust and Savings Bank, an Illinois banking corporation with its principal
place of business at 111 West Monroe Street, Chicago, Illinois 60690,
(hereinafter referred to as "Harris") for itself and as agent hereunder for
the Lenders hereinafter defined (Harris acting as such agent and any successor
or successors to Harris in such capacity being hereinafter referred to as
"Mortgagee");
W I T N E S S E T H:
WHEREAS, the Owner is the owner of the whole of those certain nine ammonia
barges and two nitrogen solution barges described in Schedule I hereto, which
barges are documented under the laws of the United States; and
WHEREAS, Mississippi Chemical Corporation, a Mississippi corporation (the
"Borrower") has entered into with Harris (individually and as administrative
agent for itself and the lenders who may from time to time be parties to the
Credit Agreement described below (individually a "Lender" and collectively the
"Lenders")) that certain Credit Agreement dated as of November 25, 1997, as the
same may from time to time be amended (as so amended, the "Credit Agreement")
pursuant to which the Lenders commit, subject to certain terms and conditions,
to make a revolving credit facility (the "Revolving Credit") in the aggregate
principal amount of $200,000,000 available to the Borrower; and
WHEREAS, Harris may, pursuant to the Credit Agreement and as part of the
Revolving Credit referred to above, issue letters of credit (individually an
"L/C" and collectively the "L/Cs") for the account of the Borrower in an
aggregate face amount not to exceed $30,000,000 and with expiry dates of not
more than one year from the date of issuance thereof, but in no event later
than November 25, 2002, which L/Cs are to be issued upon and subject to the
terms of separate applications and agreements for L/Cs to be executed by the
Grantor (individually an "Application" and collectively the "Applications");
and
WHEREAS, pursuant to the Credit Agreement Harris commits, subject to
certain terms and conditions and as part of the Revolving Credit referred to
above, to make swingline loans (the "Swingline Loans") to the Borrower in an
aggregate principal amount outstanding at any time not to exceed $25,000,000;
and
WHEREAS, pursuant to the Credit Agreement the Lenders may, but are not
obligated to, make competitive bid loans ("Bid Loans" and, together with all
loans made under the Revolving Credit and all Swingline Loans, individually a
"Loan" and collectively the "Loans") to the Borrower in an aggregate principal
amount outstanding at any time which, together with the aggregate principal
amount of all other Loans then outstanding shall not exceed $200,000,000; and
WHEREAS, all Loans made to the Borrower under the Credit Agreement are to
be evidenced by Revolving Credit Notes of the Borrower, aggregating
$200,000,000, payable to the order of the respective Lender named thereon and
maturing in no event later than November 25, 2002 and bearing interest thereon
at the rates and payable at the times provided in the Credit Agreement (such
promissory notes and any and all promissory notes issued in renewal thereof or
in substitution or replacement therefor being hereinafter referred to
collectively as the "Notes" and individually as a "Note"); and
WHEREAS, Mississippi Nitrogen, Inc. and MissChem Nitrogen, L.L.C.
(individually a "Guarantor" and collectively the "Guarantors") have executed
and delivered to the Lenders a Guaranty Agreement dated July 1, 1999 (such
Guaranty Agreement, as the same may from time to time be amended, the
"Guaranty"), pursuant to which the Guarantors guaranty the payment when due of
all of the Borrower's indebtedness, obligations and liabilities to the Lenders
under the Credit Agreement, the Notes and the Applications; and
WHEREAS, all Loans under the Credit Agreement are classified as either A
Loans or B Loans; and
WHEREAS, the aggregate principal amount of the B Loans outstanding under
the Credit Agreement may not exceed the difference between (x) 15% of the
Borrower's Consolidated Net Tangible Assets and (y) the B Loan Availability
Reserve, which is $105,000,000 on January 31, 2000; and
WHEREAS, the Borrower owns, directly or indirectly, equity interests in
the Owner and provides Owner with financial, management, administrative,
technical support and other services pursuant to a management services
agreement which enables Owner to conduct its business in an orderly and
efficient manner in the ordinary course; and
WHEREAS, Owner will benefit, directly or indirectly, from credit and other
financial accommodations extended by the Lenders to the Borrower; and
NOW, THEREFORE, in consideration of the premises and of the sum of Ten
Dollars received by the Owner from the Mortgagee and other good and valuable
consideration, the receipt whereof is hereby acknowledged, and in order to
secure (i) the payment of the principal of and interest on the A Loans as and
when the same become due and payable (whether by lapse of time, acceleration or
otherwise), (ii) the payment of all sums owing in connection with the L/Cs
(collectively, the "Reimbursement Obligations") as and when the same become due
and payable, (iii) the obligation of the Borrower to pay Mortgagee and the
Lenders certain fees, costs, expenses, indemnities and other amounts pursuant
to the Credit Agreement and the Applications except any such fees, costs,
expenses, indemnities and other amounts relating to the principal of and
interest on the B Loans or any amount relating thereto, (iv) the payment and
performance by the Guarantors of all of their indebtedness, obligations and
liabilities under the Guaranty except any such indebtedness, obligations and
liabilities relating to the principal of or interest on the B Loans or any
amount relating thereto, (v) the payment of all other indebtedness,
obligations and liabilities which this Mortgage secures pursuant to any of its
terms and (vi) the observance and performance of all covenants and agreements
contained herein or in, the Credit Agreement, the Applications or in any other
instrument or document at any time evidencing or securing any of the foregoing
or setting forth terms and conditions applicable thereto, except any of the
foregoing relating to the principal of and interest on the B Loans or any
amount relating thereto (all of such indebtedness, obligations and liabilities
being hereinafter collectively referred to as the "indebtedness hereby
secured"):
THE OWNER DOES HEREBY sell, convey, warrant, mortgage, assign, pledge,
grant a security interest in and hypothecate unto the Mortgagee, its successors
and assigns, forever, the whole of the barges described in Schedule I hereto,
together with all machinery, tanks, apparel, equipment, covers any and all
other appurtenances thereunto appertaining or belonging, and also any and all
additions, improvements and replacements hereafter made in or to said barge, or
any part thereof, or in or to its machinery, tanks, apparel, equipment, covers
and other appurtenances aforesaid (said barges, together with all the
foregoing, being herein individually called a "Vessel" and collectively the
"Vessels");
TO HAVE AND TO HOLD forever, upon the terms herein set forth, for the
benefit, security and protection of the holders of the indebtedness hereby
secured; provided always, however that these presents are upon the express
condition that if all of the indebtedness hereby secured shall have been paid
and performed in full (including all sums payable under or according to the
provisions of the Applications), all L/C's issued pursuant to the Applications
shall have expired and any commitment in the Credit Agreement to make A Loans
and issue L/C's shall have terminated, then these presents and the rights
hereunder shall cease and this Mortgage shall become null and void; otherwise,
to remain in full force and effect.
This Mortgage is given on the further express condition that in no event
will this Mortgage secure any indebtedness, obligation and liabilities of the
Borrower or the Guarantors relating to the principal of and interest on the B
Loans or any amount relating thereto.
SECTION 1. COVENANTS AND WARRANTIES.
The Owner covenants, warrants and agrees as follows:
Section 1.1. Title to Vessels. The Owner lawfully owns and is lawfully
possessed of the Vessels free from any lien whatsoever, and the Owner will
warrant and defend the title and such possession thereto and to every part
thereof for the benefit of the Mortgagee against the claims and demands of all
persons whatsoever. The Owner will not sell, mortgage, transfer or charter any
Vessel except as permitted under the Credit Agreement.
Section 1.2. Documentation of Vessels. The Owner shall maintain the
documentation of the Vessels under the laws of the United States. The Owner
shall not permit any Vessel to be put, placed or operated under any other flag
or documentation and will not do or suffer or permit anything to be done which
can or might injuriously affect the registration or enrollment of such Vessel
under the laws or regulations of the United States. The Owner is, and shall
remain, a citizen of the United States within the meaning of Section 2 of the
Shipping Act, 1916, as amended, for the purpose of operating the Vessels in the
coastwise trade.
Section 1.3. Operation of Vessels. The Owner will permit the Vessels to be
operated only in waters permitted by its insurance policies covering the
Vessels.
Section 1.4. Compliance with Applicable Laws. The Owner agrees to comply
with all governmental laws, regulations, requirements and rules (including the
rules of the United States Coast Guard) with respect to the use, maintenance
and operation of the Vessels and to have on board, when required thereby, valid
certificates showing such compliance. The Owner will not engage in any
unlawful trade or violate any law or carry any cargo that will expose any
Vessel to penalty, forfeiture or capture.
Section 1.5. Condition and Maintenance of Vessels. Each Vessel meets all
requirements to entitle her to the highest classification and rating for
vessels of the same age and type in the American Bureau of Shipping and is
tight, staunch, strong and well and sufficiently tackled, appareled, furnished
and equipped, and in every respect seaworthy and in good running condition and
repair and in all respects fit for service. The Owner, without expense to the
Mortgagee, will at all times cause each Vessel:
(a) to be maintained and preserved in good condition, working
order and repair as will entitle her to retain the highest classification and
rating for vessels of the same age and type in the American Bureau of Shipping;
(b) to be kept in such condition as will enable such Vessel to
pass such inspection as may be required by maritime underwriters as a condition
to the insurance required to be maintained hereunder and to pass such
inspection as may be required by law; and
(c) to be overhauled when necessary and to be drydocked, cleaned
and bottom-painted when necessary;
and, upon the written request of the Mortgagee, but not more often than every
two years after the date of this Mortgage, will cause each Vessel to be
surveyed by an independent marine surveyor, reasonably satisfactory to the
Mortgagee, and will promptly furnish to the Mortgagee a written report of such
surveyor as to the results of such survey and the compliance with this
Section 1.5.
Section 1.6. Maintenance of Mortgage; Further Assurances. The Owner will
comply with 46 U.S.C. Section 31301 et seq., as amended and all other provisions
of law in order to establish and maintain this Mortgage as a valid "first
preferred" Mortgage upon the Vessels and upon all additions, renewals,
improvements and replacements made in or to the same; and will do such other
acts, and execute and deliver such other deeds, conveyances, mortgages,
transfers and assurances as the Mortgagee shall reasonably require for the
better assuring, conveying, transferring, mortgaging, assigning and confirming
the Vessels unto the Mortgagee in order more effectively to subject the Vessel
to the lien of this Mortgage as security for and for the benefit and protection
of the indebtedness hereby secured.
Section 1.7. Mortgagee's Right to Inspect. The Mortgagee or its
representatives shall be entitled, but shall be under no obligation, to inspect
the Vessels and their cargo and marine documents at any reasonable time upon
written notice to the Owner. At the request of the Mortgagee, the Owner will
deliver for inspection copies of any and all contracts and documents relating
to the Vessels.
Section 1.8. Creation of Liens. Neither the Owner nor any other person has
or shall have any right, power or authority to create, incur or permit to be
placed or imposed upon the Vessels, or any part thereof, or any of their
freights, profits or hire, any lien whatsoever other than liens for damages
arising out of tort or liens for wages of a stevedore when employed directly by
the Owner or the operator, master, ship's husband or agent of any Vessel, for
crews' wages, for general average or for salvage (including contract salvage).
The Owner shall, no later than thirty days after they become due, pay or
satisfy and discharge, or cause to be paid, satisfied or discharged, any and
all claims which, if unpaid, might constitute or become a lien or a charge
upon any Vessel, and any liens or charges which may be levied against or
imposed upon any Vessel, but the Owner shall not be required to pay or
discharge any such claims so long as it shall, in good faith and by appropriate
legal proceedings, contest the validity thereof in any reasonable manner which
will not affect or endanger the title and interest of the Owner in the Vessels
or the interest of the Mortgagee hereunder.
Section 1.9. Insurance. (a) The Owner, without expense to the Mortgagee,
will cause the following insurance to be carried and maintained:
(i) Marine Insurance on the Vessels in an amount at least equal
to the value of the Vessels covering the hull and all equipment and
appurtenances of the Vessels, against all usual marine risks subject to no
deductible in excess of $250,000 per occurrence unless such deductible
amounts are otherwise insured;
(ii) Insurance covering the customary protection and indemnity
risks in an amount at least equal to the value of the Vessels and subject
to no deductible in excess of $2,000,000 per occurrence;
(iii) Insurance in an amount at least equal to $5,000,000 subject
to no deductible in excess of $250,000 against liability arising out of
pollution, spillage or leakage in connection with operations conducted by
any Vessel;
(iv) War risk insurance, if requested by the Mortgagee and if made
available through agencies of the United States government; and
(v) Such other insurance coverage for the Owner in such forms and
amounts and against such hazards as are customary for companies engaged in
similar businesses and owning and operating similar properties.
Each insurance policy:
(a) shall be by such insurer (or association), in such form and
with such provisions (including, without limitation, the loss payable
clause and the designation of named assureds) as the Mortgagee may
approve;
(b) shall prohibit cancellation or substantial modification by
the insurer without the written consent of both the Owner and the
Mortgagee or, in the absence of such consent, without at least 30 days'
prior written notice to the Owner and the Mortgagee. The Owner will
cause to be delivered to the Mortgagee whenever requested, copies of all
covernotes, binders or policies for the purposes of inspection or
safekeeping (and originals thereof if necessary for the enforcement of
any rights thereunder);
(c) shall provide that there shall be no recourse against the
Mortgagee for premiums in respect thereof; and
(d) shall insure the Mortgagee's interest regardless of any
breach of or violation by the Owner of any warranty, declaration or
condition contained in such policy and shall not be invalidated or
adversely affected by any act or omission of the Owner or its employees
or agents.
(b) The Owner shall on behalf and for the benefit of itself and the
Mortgagee maintain a Certificate of Financial Responsibility issued by the
United States pursuant to the Federal Water Pollution Control Act to the extent
that the same may be required by law or regulation.
(c) Unless otherwise required by the Mortgagee by written notice to the
insurers, all hull insurance carried or maintained on the Vessels shall be made
payable as follows:
(i) In the event of any damage to any Vessel involving a loss of
$1,000,000 or more, or in the event of an actual, constructive or agreed
total loss of any Vessel, the insurance proceeds shall be made payable to
the Mortgagee or the Owner, as their interest may appear; and
(ii) In the event of any damage to any Vessel involving a loss of
less than $1,000,000, the insurance proceeds shall be made payable to the
Owner.
(d) The Owner will not do or suffer or permit any act to be done whereby
any insurance is or may be suspended, impaired or defeated, and will not suffer
or permit any Vessel to engage in any voyage or carry any cargo not permitted
under the policies of insurance in effect, without first covering such Vessel
by insurance (which shall be satisfactory to the Mortgagee) for such voyage or
the carriage of such cargo.
(e) The Owner will pay or cause to be paid the premiums on and costs of
all such insurance and all renewals thereof, when and as the same become
payable and in any event within 30 days from the date when such insurance
attaches, and will forthwith furnish to the Mortgagee evidence satisfactory to
the Mortgagee that the same have been paid.
(f) In the event that any claim or lien is made against any Vessel for
loss, damage or expense which is covered by insurance required hereunder, and
it is necessary for the Owner to obtain a bond or supply other security to
prevent arrest of such Vessel, or to release such Vessel from arrest on account
of such claim or lien, the Mortgagee, on written request of the Owner, may, in
the sole discretion of the Mortgagee, assign to any person, firm or corporation
executing a surety or guarantee bond or other agreement to save or release such
Vessel from such arrest, all right, title and interest of the Mortgagee in and
to such insurance covering such loss, damage or expense, as collateral security
to indemnify against liability under such bond or other agreement.
(g) The Owner will, without expense to the Mortgagee, cause all proof of
loss to be made and all other necessary or appropriate action to be taken to
effect collections from insurers of insurance required by this Section 1.10.
To that end, the Mortgagee, at the expense of the Owner, will sign such claim
papers and other documents, take such action and furnish such information as
may be reasonably requested, including tendering abandonment of the Vessel to
insurers or others.
(h) On the date hereof, the Owner will furnish to the Mortgagee a report
signed by marine insurance brokers satisfactory to the Mortgagee with respect
to the insurance maintained under this Mortgage (including, without limitation,
as to each policy, its number, the amount, the insurer, the named assureds, the
type of risk, the loss payees and the expiration date) and stating the opinion
of said brokers that such insurance complies with the terms hereof and stating
the opinion of the signer as to the adequacy of such insurance for the
protection of the interests of the Owner and the Mortgagee. Within 30 days
after the end of each fiscal year, the Owner will furnish the Mortgagee with a
certificate of the President, any Vice President, the Treasurer or an Assistant
Treasurer of the Owner containing a statement of the insurance maintained by
the Owner pursuant to this Section 1.10 (including, as to each policy, its
number, the amount, the Insurer, the named assureds, the type of risk, the
loss payees and the expiration date) and a statement that such insurance
complies with the terms hereof.
Section 1.10. Requisition of Title to Vessels. In the event that title or
ownership of any Vessel shall be requisitioned, purchased or taken by any
government of any country or any agent thereof, the lien of this Mortgage shall
be deemed to attach to the claim for compensation and the compensation,
purchase price, reimbursement or award shall be payable to the Mortgagee. The
Owner shall promptly execute and deliver such documents, if any, and shall
promptly do and perform such acts, if any, as in the opinion of the Mortgagee
may be necessary or useful to facilitate or expedite the collection by the
Mortgagee of such compensation, purchase price, reimbursement or award.
Section 1.11. Deficiency Payments. In the event the amount due on the
indebtedness hereby secured exceeds the proceeds of insurance received by the
Mortgagee pursuant to Section 1.9(c)(i) in the case of an actual or
constructive total loss of any Vessel, or the compensation or award received
by the Mortgagee pursuant to Section 1.11 in the case of a requisition of any
Vessel, the Owner shall promptly pay over to the Mortgagee an amount in cash
equal to the difference between the amount due on the indebtedness hereby
secured and the amount of said insurance proceeds, compensation or award so
received by the Mortgagee.
Section 1.12. Payment of Taxes. The Owner shall report, pay and discharge
or cause to be reported, paid and discharged, when due, all license and
registration fees, assessments, sales, use and property taxes, gross receipts
taxes arising out of receipts from use or operation of the Vessels, and other
taxes, fees and governmental charges similar or dissimilar to the foregoing,
levied or assessed against any Vessel or the interest of the Owner therein and
in respect thereof, and all sales and use taxes which may be levied or assessed
against or payable by the Owner on account of the acquisition, chartering or
subchartering or use of any Vessel, together with any penalties or interest
thereon, imposed by any state, Federal or local government upon such Vessel;
provided, however, that the Owner shall not be required to pay or discharge any
such tax or assessment so long as it shall, in good faith and by appropriate
legal proceedings, contest the validity thereof in any reasonable manner which
will not affect or endanger the title and interest of the Owner to such Vessel.
Section 1.13. Payment of Indebtedness. Subject to the limitations contained
in Section 3 hereof, the Owner will duly and punctually pay, or cause to be
paid, the principal of and interest on the indebtedness hereby secured.
Section 1.14. Maintenance of Existence, Etc. The Owner shall at all times
maintain its existence as a corporation in good standing under the laws of the
State of Delaware except as permitted by Section 1.15 hereof. The Owner will
do or cause to be done all things necessary to preserve and keep in full force
and effect its right (charter and statutory) to do business and will remain in
good standing in each jurisdiction where the character of its properties or
the nature of its activities makes such qualification necessary.
Section 1.15. Merger, Consolidation, Etc. The Owner shall not consolidate
with or merge into any Person (which term, for the purposes of this Section
1.16, means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof) or lease (other than in the ordinary course of business),
convey or transfer substantially all of its assets as an entirety to any
Person, unless:
(a) the corporation or other entity formed by such consolidation
or into which the Owner is merged or the Person which acquires by
conveyance, transfer or lease substantially all of the assets of the Owner
as an entirety shall be duly organized, legally existing and in good
standing under the laws of the United States of America or any state or
the District of Columbia and shall be a citizen of the United States as
defined in Section 2 of the Shipping Act, 1916, as amended, for the
purpose of operating the Vessels in the coastwise trade;
(b) such Person shall execute and deliver to the Mortgagee an
assumption agreement in form and substance satisfactory to the Mortgagee
containing an assumption by such successor corporation or Person of the
due and punctual performance of each obligation, covenant and condition
of this Mortgage;
(c) immediately after giving effect to such transaction and as a
consequence thereof, no Event of Default under this Mortgage, and no event
which, after notice or lapse of time, or both, would become an Event of
Default under this Mortgage, shall have occurred and be continuing; and
(d) the Owner shall have delivered to the Mortgagee a Certificate
signed by its President or a Vice President and by its Secretary or an
Assistant Secretary, and an opinion of counsel satisfactory to the
Mortgagee stating that such consolidation, merger, conveyance, transfer
or lease and the assumption agreement required by subparagraph (b) above
comply with this Section 1.16 and that all conditions precedent therein
provided for relating to such action have been complied with.
No such conveyance, transfer or lease of substantially all of the assets of the
Owner as an entirety shall have the effect of releasing the Owner or any
successor corporation which shall theretofore have become such in the manner
prescribed in this Section 1.16 from its liability hereunder.
Section 1.16. Liens Absolute, Etc. The Owner acknowledges and agrees that
the liens and security interests hereby created are absolute and unconditional
and shall not in any manner be affected or impaired by any acts or omissions
whatsoever of the Mortgagee or any other holders of any of the indebtedness
hereby secured, and without limiting the generality of the foregoing, the lien
and security hereof shall not be impaired by any acceptance by the Mortgagee or
any other holder of any of the indebtedness hereby secured of any other
security for or guarantors upon any of the indebtedness hereby secured or by
any failure, neglect or omission on the part of the Mortgagee or any other
holder of any of the indebtedness hereby secured to realize upon to protect
any of the indebtedness hereby secured or any collateral security therefor.
The lien and security hereof shall not in any manner be impaired or affected
by any sale, pledge, surrender, compromise, settlement, release, renewal,
extension, indulgence, alteration, substitution, exchange, change in,
modification or disposition of any of the indebtedness hereby secured, or of
any collateral security therefor, or of any guaranty thereof, or of any loan
agreement executed in connection therewith. In order to realize hereon and to
exercise the rights granted Mortgagee hereby and under applicable law, there
shall be no obligation on the part of Mortgagee or any other holder of any of
the indebtedness hereby secured at any time to first resort for payment to the
obligor on any note evidencing any of the indebtedness hereby secured or to any
guaranty of any of the indebtedness hereby secured or any part thereof or to
resort to any other collateral security, property, liens or any other rights
or remedies whatsoever, and Mortgagee shall have the right to enforce this
instrument irrespective of whether or not other proceedings or steps are
pending seeking resort to or realization upon or from any of the foregoing.
Section 1.17. Direct and Primary Security - No Subrogation. The lien and
security herein created and provided for stands as direct and primary security
for the A Loans and the Applications as well as for any of the other
indebtedness hereby secured. No application of any sums received by the
Mortgagee or the Lenders in respect of the Vessels or any disposition thereof
to the reduction of the indebtedness hereby secured or any part thereof shall
in any manner entitle Owner to any right, title or interest in or to the
indebtedness hereby secured or any collateral security therefor, whether by
subrogation or otherwise, unless and until all indebtedness hereby secured has
been fully paid and satisfied.
Section 1.18. Revolving Credit Loan. The Mortgage is given to secure, among
other things, a revolving credit loan and shall secure not only presently
existing indebtedness under the Credit Agreement but also future advances,
whether such advances are obligatory or to be made at the option of Lenders, or
otherwise, as are made within twenty (20) years from the date hereof, to the
same extent as if such future advances were made on the date of the execution
of this mortgage, although there may be no advance made at the time of
execution of this Mortgage and although there may be no indebtedness hereby
secured outstanding at the time any advance is made. The lien of this Mortgage
shall be valid as to all indebtedness hereby secured, including future
advances, from the time of its filing for record. The total amount of
indebtedness hereby secured may increase or decrease from time to time, but
the total unpaid balance of indebtedness hereby secured (including
disbursements which Mortgagee may make under this Mortgage, the Credit
Agreement, the Applications or any other documents related thereto) at any one
time outstanding shall not exceed a maximum principal amount of Two Hundred
Million Dollars ($200,000,000) plus interest thereon and any disbursements
made for payment of taxes, special assessments or insurance on the Vessels and
interest on such disbursements, together with any fees, costs or expenses
which may be payable hereunder (all such indebtedness being hereinafter
referred to as the "maximum amount secured hereby").
SECTION 2. DEFAULTS AND OTHER PROVISIONS.
Section 2.1. Events of Default; Remedies. In case any one or more of the
following events, herein termed "Events of Default", shall happen; that is to
say, in case:
(a) The occurrence of any event or the existence of any condition
specified as an "Event of Default" under the Credit Agreement; or
(b) The Owner ceases to be a citizen of the United States within
the meaning of Section 2 of the Shipping Act of 1916, as amended, for the
purpose of operating the Vessels in the coastwise trade;
then, and in each and every such case, the Mortgagee may:
(1) by notice in writing to the Owner, declare the entire unpaid
balance of the indebtedness hereby secured to be immediately due and
payable; and thereupon all such unpaid balance, together with all accrued
interest thereon, shall be and become immediately due and payable;
(2) exercise all of the rights and remedies in foreclosure and
otherwise given to a mortgagee by the laws of any applicable jurisdiction;
(3) take the Vessels, or any of them, wherever the same may be,
without legal process and without being responsible for loss or damage;
and the Owner or other person in possession forthwith upon demand of the
Mortgagee shall surrender to the Mortgagee possession of the Vessels and
the Mortgagee may hold, lay up, lease, charter, operate or otherwise use
the Vessel for such time and upon such terms as it may deem to be for its
best advantage, accounting only for the net profits, if any, arising from
such use of the Vessels and charging upon all receipts from the use of the
Vessels or from any sale thereof or from the exercise of any of the powers
conferred by subparagraph (4) next following, all costs, expenses,
charges, damages or losses by reason of such use; and
(4) demand, collect, receive, compromise and sue for, so far as
may be permitted by law, in the name of the Owner, all freight, hire,
earnings, issues, revenues, income and profits of the Vessels, all amounts
due from underwriters under any insurance thereon as payments of losses or
as return premiums or otherwise, all salvage awards and recoveries, all
recoveries in general average or otherwise, and all other sums due or to
become due in respect of the Vessels, or in respect of any insurance
thereon, from any person whomsoever, and to make, give and execute in the
name of the Owner acquittances, receipts, releases or other discharges for
the same, and to endorse and accept in the name of the Owner all checks,
notes, drafts, warrants, agreements and other instruments in writing with
respect to the foregoing, and the Owner does hereby irrevocably appoint
the Mortgagee or its appointees, successors or assigns the true and lawful
attorneys-in-fact of the Owner, upon the happening of an Event of Default,
to do all said acts.
Section 2.2. Appointment of Receiver; Sale. The Mortgagee in any suit to
enforce any of its rights, powers and remedies, if an Event of Default shall
have occurred and shall not have been cured, shall be entitled as a matter of
right and not as a matter of discretion (i) to the appointment of a receiver or
receivers of the Vessels, and any receiver so appointed shall have full rights
and powers to use and operate the Vessels or such powers as the court
appointing such receiver may prescribe, including but not limited to, the power
to pay off the crew of the Vessels and repatriate the crew, if need be, and
(ii) to a decree ordering and directing the sale and disposal of the Vessels,
whereupon the Mortgagee may become the purchaser at such sale and shall have
the right to credit on the purchase price any and all sums of money due under
the indebtedness hereby secured, or otherwise hereunder.
Section 2.3. Waivers; Remedies Not Exclusive, Etc. No delay or omission of
the Mortgagee to exercise any right or power arising from any Event of Default
on the part of the Owner shall exhaust or impair any such right or power or
prevent its exercise during the continuance of such Event of Default. No
waiver by the Mortgagee of any such Event of Default, whether such waiver be
full or partial, shall extend to or be taken to affect any subsequent Event of
Default, or to impair the rights resulting therefrom except as may be
otherwise provided herein. No remedy hereunder is intended to be exclusive of
any other remedy but each and every remedy shall be cumulative and in addition
to any and every other remedy given hereunder or otherwise existing. Nor
shall the giving, taking or enforcement of any other or additional security,
collateral or guaranty for the payment of the indebtedness secured under this
Mortgage operate to prejudice, waive or affect the lien of the Mortgage or any
rights, powers or remedies hereunder, nor shall the Mortgagee be required to
first look to, enforce or exhaust such other additional security, collateral
or guaranties.
Section 2.4. Discontinued Proceedings. In case the Mortgagee shall have
proceeded to enforce any right, power or remedy under this Mortgage by
foreclosure, entry or otherwise and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined
adversely to the Mortgagee, then and in every such case the Owner and the
Mortgagee shall be restored to their former positions and rights hereunder
with respect to the property subject to this Mortgage, and all rights,
remedies and powers of the Mortgagee shall continue as if no such proceedings
had been taken.
Section 2.5. Application of Proceeds. The proceeds of the sale or
requisition of the Vessels, the net earnings from any management, charter or
other use of the same by the Mortgagee under any of the powers above specified,
including the proceeds of any claim for damages on account of the Vessels and
of any insurance moneys received by the Mortgagee for the account of the
Vessels while exercising any such power or otherwise, and the net proceeds of
any other sums collected by the Mortgagee in the name of the Owner or
otherwise by virtue of the provisions of this Mortgage, shall be applied by
the Mortgagee as follows:
First: To the payment of all reasonable expenses and
charges, including the expenses of any sale, the expenses of any taking,
attorney's fees, court costs and any other expenses or advances made or
incurred by the Mortgagee in the protection of its rights or the
pursuance of its remedies hereunder, and to provide adequate indemnity
to the Mortgagee against liens claiming priority over or equality with
this Mortgage; and
Second: To the payment of the amounts then due and unpaid on
the indebtedness hereby secured for principal and interest; and
Third: To the payment of the surplus, if any, to the Owner,
its successors and assigns, or to whomsoever may be lawfully entitled to
receive the same.
Section 2.6. General Powers of the Mortgagee. (a) In the event that any
Vessel shall be arrested or detained by a Marshall or other officer of any
court of law, equity or admiralty jurisdiction in any country or nation of the
world or by any government or other authority and shall not be released from
arrest or detention within ten (10) days from the date of arrest or detention,
the Owner does hereby authorize and empower the Mortgagee, in the name of the
Owner, or its successors or assigns to apply for and receive possession of and
to take possession of such Vessel with all rights and powers that the Owner,
or its successors or assigns, might have, possess or exercise in any such
event; and this power of attorney shall be irrevocable and may be exercised not
only by the Mortgagee hereinabove named but also by an appointee or appointees,
with full power of substitution, to the same extent as if the said appointee or
appointees had been named as one of the attorneys above named by express
designation.
(b) The Owner also authorizes and empowers the Mortgagee or its
appointees or any of them to appear in the name of the Owner, its successors or
assigns, in any court of any country or nation of the world where a suit is
pending against any Vessel because of or on account of any alleged lien against
such Vessel from which such Vessel has not been released and to take such
proceedings as to it may seem proper towards the defense of such suit and the
discharge of such lien, and all expenditures made or incurred by it for the
purpose of such defense or discharge shall be a debt due from the Owner, its
successors or assigns, to the Mortgagee, and shall be secured by the lien of
this Mortgage in like manner and extent as if the amount and description
thereof were written herein.
(c) If the Owner shall make default in the observance or performance of
any of the covenants, conditions or agreements in this Mortgage on its part to
be performed or observed, the Mortgagee may, in its discretion do all acts and
make all expenditures necessary to remedy such default, including, without
limitation of the foregoing, entry upon any Vessel to make repairs, and/or
paying of insurance premiums, and the amount of all expenditures so made or
incurred with interest at the rate which is the lesser of (i) the rate per
annum determined by adding 2% to the rate per annum from time to time
announced by Harris as its prime commercial rate with any change in such rate
per annum as so determined by reason of a change in such prime commercial rate
to be and become effective as of and on the date of such change in said prime
commercial rate (the "Default Rate"), and (ii) the maximum rate permitted by
applicable law, shall be secured by the lien of this Mortgage in like manner
and extent as if the amount and description thereof were written herein; but
the Mortgagee, though privileged so to do, shall be under no obligation to the
Owner to make any such expenditures nor shall the making thereof relieve the
Owner of any default in that respect. The amount of all other advances,
expenses or liabilities made or incurred by the Mortgagee at any time in
enforcing or protecting its rights hereunder or under the Note, with interest
at the rate which is the lesser of (i) the Default Rate, and (ii) the maximum
rate permitted by applicable law, shall be secured by the lien of this Mortgage
in like manner and extent as if the amount and description thereof were written
herein.
Section 2.7. Owner's Right to Possession. Until one or more of the Events
of Default hereinbefore described shall happen, the Owner shall be suffered and
permitted to retain actual possession and use of the Vessels.
SECTION 3. MISCELLANEOUS.
Section 3.1. Successors and Assigns. Whenever any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; and all the covenants, premises and agreements in this
Mortgage contained by or on behalf of the Owner or by or on behalf of the
Mortgagee, shall bind and inure to the benefit of the respective successors and
assigns of such parties whether so expressed or not.
Section 3.2. Partial Invalidity. All rights, powers and remedies provided
herein are intended to be limited to the extent necessary so that they will not
render this Mortgage invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law. The unenforceability, or
invalidity of any provision or provisions of this Mortgage shall not render any
other provision or provisions herein contained unenforceable or invalid.
Section 3.3. Communications. All communications provided for herein shall
be in writing and shall be deemed to have been given (unless otherwise required
by the specific provisions hereof in respect of any matter) when delivered
personally or when deposited in the United States mail, registered, postage
prepaid, addressed as follows:
If to the Owner: TNI Barge, Inc.
P.O. Box 323
Yazoo City, Mississippi 39194-0323
Attention: Corporate Secretary
If to the Mortgagee: Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60690
Attention: Agribusiness Division
or to the Owner or the Mortgagee at such other address as the Owner or the
Mortgagee may designate by notice duly given in accordance with this Section to
the other party.
Section 3.4. Release. The Mortgagee shall release this Mortgage and the
lien granted hereby by proper instrument or instruments when all indebtedness
hereby secured has been fully paid or discharged (including all sums payable
under or according to the provisions of the Applications), all L/C's issued
pursuant to the Applications shall have expired and any commitment in the
Credit Agreement to advance funds shall have terminated.
Section 3.5. Headings. Any headings or captions preceding the text of the
several Sections hereof are intended solely for convenience of reference and
shall not constitute a part of this Mortgage nor shall they affect its meaning,
construction or effect.
Section 3.6. No Waiver of Preferred Status. No provision of this Mortgage
or any other document shall be deemed to constitute a waiver by the Mortgagee
of the preferred status hereof given by 46 U.S.C. Section 31301 et seq., as
amended, and any provision of this Mortgage or any other document which would
otherwise constitute such a waiver shall to such extend be of no force or
effect.
Section 3.7. Governing Law. This Mortgage is granted pursuant to 46 U.S.C.
Section 31301, et seq., as amended, and is to be governed thereby. To the
extent the provisions of this Mortgage are to be construed in accordance with
state law, such provisions shall be construed in accordance with the laws of
the State of Illinois; provided, however, the parties shall be entitled to all
rights conferred by any applicable Federal statute, rule or regulation.
Section 3.8. Discharge. It is the intent of the parties hereto that this
Mortgage constitutes a lien on each Vessel in the full amount of the
outstanding secured indebtedness and an allocation of such secured indebtedness
for purposes of separate discharge may not be made among any particular Vessel
or Vessels and the other Vessels covered by this Mortgage. For the purpose of
46 U.S.C. Section 31321(b)(3) and for the purpose of this Mortgage, the total
amount secured hereby is TWO HUNDRED MILLION DOLLARS ($200,000,000) and
interest and performance of mortgage covenants, the date of maturity is
November 25, 2002, and the discharge amount is the same as the total amount
and, although it is not intended that this Mortgage include any property other
than the Vessels, if any determination is made at any time that for any reason
this Mortgage includes any property other than a "vessel" within the meaning
of 46 U.S.C. Section 31322(c), then such property may be separately discharged
from the lien of this Mortgage by the payment of .01% of the said total amount.
Section 3.9. Agent. Mortgagee has been appointed as agent pursuant to the
Credit Agreement. In acting under or by virtue of this Mortgage, Mortgagee
shall be entitled to all the rights, authority, privileges and immunities
provided in Sections 10.1 through 10.14 of the Credit Agreement, all of which
provisions of said Sections 10.1 through 10.14 are incorporated by reference
herein with the same force and effect as if set forth herein. Mortgagee hereby
disclaims any representation or warranty to Lenders concerning the perfection
of the security interest granted hereunder or the value of the Vessels.
IN WITNESS WHEREOF, the Owner has caused this Mortgage to be executed as
of the day and the year first above written.
TNI BARGE, INC.
By /s/ Timothy A. Dawson
Its: Vice President and Treasurer
<PAGE>
</TABLE>
<TABLE>
DESCRIPTION OF VESSELS
VESSEL NAME TYPE OF VESSEL OFFICIAL NUMBER
<S> <C> <C>
AF-10 Nitrogen Solution 294858
AF-11 Nitrogen Solution 294859
AF-12 Ammonia 501621
AF-13 Ammonia 501925
AF-14 Ammonia 512082
AF-15 Ammonia 512081
NMS-2502 Ammonia 294678
NMS-2503 Ammonia 294394
NMS-2505 Ammonia 579128
NMS-2507 Ammonia 503868
NMS-2602 Ammonia 579129
</TABLE>
<PAGE>
STATE OF ___________ )
) SS:
COUNTY OF _________ )
On this ____ day of _____________, 2000, before me appeared
_________________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at
__________________________________________________________________; that he is
__________________________________ of TNI Barge, Inc., the Corporation described
in and which executed the foregoing instrument; that the knows the seal of said
Corporation; that the seal affixed to said instrument is such Corporation's
seal; that it was so affixed by authority of the Board of Directors of said
Corporation; that he signed his name thereto by like authority; and he
acknowledged the instrument to be the free act and deed of said Corporation.
[NOTARIAL SEAL]
Notary Public
<PAGE>
EXHIBIT U
(PRINCIPAL PROPERTIES)
DEED OF TRUST AND SECURITY AGREEMENT WITH
ASSIGNMENT OF RENTS
This Deed of Trust and Security Agreement with Assignment of Rents (the
"Deed of Trust") dated ___________________, 2000 from ___________, a _________
with its principal place of business and mailing address at __________________
(hereinafter referred to as "Grantor") to ___________________, a _____________
with its principal place of business and mailing address at
____________________, as Trustee (the "Trustee") and in trust for the benefit
of Harris Trust and Savings Bank, an Illinois banking corporation with its
principal place of business at 111 West Monroe Street, Chicago, Illinois 60690,
(hereinafter referred to as "Harris") for itself and as agent hereunder for the
Lenders hereinafter defined (Harris acting as such agent and any successor or
successors to Harris in such capacity being hereinafter referred to as
"Beneficiary");
W I T N E S S E T H T H A T:
WHEREAS, Mississippi Chemical Corporation, a Mississippi corporation (the
"Borrower") has entered into with Harris (individually and as administrative
agent for itself and the lenders who may from time to time be parties to the
Credit Agreement described below (individually a "Lender" and collectively the
"Lenders") that certain Credit Agreement dated as of November 25, 1997, as the
same has been and hereafter may from time to time be amended (as so amended,
the "Credit Agreement") pursuant to which the Lenders commit, subject to
certain terms and conditions, to make a revolving credit facility (the
"Revolving Credit") in the aggregate principal amount of $200,000,000 available
to the Borrower; and
WHEREAS, Harris may, pursuant to the Credit Agreement and as part of the
Revolving Credit referred to above, issue letters of credit (individually an
"L/C" and collectively the "L/Cs") for the account of the Borrower in an
aggregate face amount not to exceed $30,000,000 and with expiry dates of not
more than one year from the date of issuance thereof, but in no event later
than November 25, 2002, which L/Cs are to be issued upon and subject to the
terms of separate applications and agreements for L/Cs to be executed by the
Grantor (individually an "Application" and collectively the "Applications");
and
WHEREAS, pursuant to the Credit Agreement Harris commits, subject to
certain terms and conditions and as part of the Revolving Credit referred to
above, to make swingline loans (the "Swingline Loans") to the Borrower in an
aggregate principal amount outstanding at any time not to exceed $25,000,000;
and
WHEREAS, pursuant to the Credit Agreement the Lenders may, but are not
obligated to, make competitive bid loans ("Bid Loans" and, together with all
loans made under the Revolving Credit and all Swingline Loans, individually a
"Loan" and collectively the "Loans") to the Borrower in an aggregate principal
amount outstanding at any time which, together with the aggregate principal
amount of all other Loans then outstanding shall not exceed $200,000,000; and
WHEREAS, all Loans made to the Borrower under the Credit Agreement are to
be evidenced by Revolving Credit Notes of the Borrower, aggregating
$200,000,000, payable to the order of the respective Lender named thereon and
maturing in no event later than November 25, 2002 and bearing interest thereon
at the rates and payable at the times provided in the Credit Agreement (such
promissory notes and any and all promissory notes issued in renewal thereof or
in substitution or replacement therefor being hereinafter referred to
collectively as the "Notes" and individually as a "Note"); and
WHEREAS, Grantor, _________ and ________ (individually a "Guarantor" and
collectively the "Guarantors") have executed and delivered to the Lenders a
Guaranty Agreement dated July 1, 1999 (such Guaranty Agreement, as the same may
from time to time be amended, the "Guaranty"), pursuant to which the Guarantors
guaranty the payment when due of all of the Borrower's indebtedness,
obligations and liabilities to the Lenders under the Credit Agreement, the
Notes and the Applications; and
WHEREAS, all Loans under the Credit Agreement are classified as either A
Loans or B Loans; and
WHEREAS, the aggregate principal amount of the B Loans outstanding under
the Credit Agreement may not exceed an amount equal to 15% of the Borrower's
Consolidated Net Tangible Assets, which is $ __________ on ____________; and
WHEREAS, all Loans that are not B Loans under the Credit Agreement are
classified as A Loans; and
WHEREAS, the Borrower owns, directly or indirectly, equity interests in
the Grantor and provides Grantor with financial, management, administrative,
technical support and other services pursuant to a management services
agreement which enables Grantor to conduct its business in an orderly and
efficient manner in the ordinary course; and
WHEREAS, Grantor will benefit, directly or indirectly, from credit and
other financial accommodations extended by the Lenders to the Borrower; and
NOW, THEREFORE, to secure (i) the payment of the principal of and interest
on the B Loans as and when the same become due and payable (whether by lapse of
time, acceleration or otherwise), (ii) the payment and performance by the
Guarantors of all of their indebtedness, obligations and liabilities under the
Guaranty relating only to the B Loans, (iii) the payment of all other
indebtedness, obligations and liabilities which this Deed of Trust secures
pursuant to any of its terms and (iv) the observance and performance of all
covenants and agreements contained herein or in any other instrument or
document at any time evidencing or securing any of the foregoing or setting
forth terms and conditions applicable thereto (all of such indebtedness,
obligations and liabilities being hereinafter collectively referred to as the
"indebtedness hereby secured"), Grantor does hereby grant, bargain, sell,
convey, mortgage, warrant, assign, and pledge unto Trustee, its successors and
assigns, in trust, with power of sale as hereinafter set forth, all of
Grantor's right, title and interest in and to the properties, rights, interests
and privileges described in Granting Clauses I, II, III, IV, V, VI and VII
below, all of the same being collectively referred to herein as the "Mortgaged
Premises":
GRANTING CLAUSE I
That certain real estate lying and being in ____________, County of
____________ and State of Mississippi more particularly described in Schedule I
attached hereto and made a part hereof.
GRANTING CLAUSE II
All buildings, real estate improvements and fixtures of every kind and
description heretofore or hereafter erected or placed on the property described
in Granting Clause I, and all proceeds thereof; it being mutually agreed,
intended and declared that all the aforesaid property shall, so far as
permitted by law, be deemed to form a part and parcel of the real estate and
for the purpose of this Deed of Trust to be real estate and covered by this
Deed of Trust; and as to any fixtures, this Deed of Trust is hereby deemed to
be as well a Security Agreement under the provisions of the Uniform Commercial
Code of the State of Illinois for the purpose of creating hereby a security
interest in said property, which is hereby granted by Grantor as debtor to
Beneficiary as secured party, securing the indebtedness hereby secured. The
addresses of Grantor (debtor) and Beneficiary (secured party) appear at the
beginning hereof.
GRANTING CLAUSE III
All right, title and interest of Grantor now owned or hereafter acquired
in and to all and singular the estates, tenements, hereditaments, privileges,
easements, licenses, franchises, appurtenances and royalties, mineral, oil, and
water rights belonging or in any wise appertaining to the property described in
the preceding Granting Clause I and the buildings and improvements now or
hereafter located thereon and the reversions, rents, issues, revenues and
profits thereof, including all interest of Grantor in all rents, issues and
profits of the aforementioned property and all rents, issues, profits,
revenues, royalties, bonuses, rights and benefits due, payable or accruing
(including all deposits of money as advanced rent or for security) under any
and all leases or subleases and renewals thereof of, or under any contracts or
options for the sale of all or any part of, said property (including during any
period allowed by law for the redemption of said property after any foreclosure
or other sale), together with the right, but not the obligation, to collect,
receive and receipt for all such rents and other sums and apply them to the
indebtedness hereby secured and to demand, sue for and recover the same when
due or payable; provided that the assignments made hereby shall not impair or
diminish the obligations of Grantor under the provisions of such leases or
other agreements nor shall such obligations be imposed upon Trustee or
Beneficiary. By acceptance of this Deed of Trust, Trustee agrees, not as a
limitation or condition hereof, but as a personal covenant available only to
Grantor that until an Event of Default shall occur giving Trustee the power of
sale or the right to foreclose this Deed of Trust, Grantor may collect, receive
(but not more than 30 days in advance) and enjoy such rents.
GRANTING CLAUSE IV
All judgments, awards of damages, settlements and other compensation
heretofore or hereafter made resulting from condemnation proceedings or the
taking of the property described in Granting Clause I or any part thereof or
any building or other improvement now or at any time hereafter located thereon
or any easement or other appurtenance thereto under the power of eminent
domain, or any similar power or right (including any award from the United
States Government at any time after the allowance of the claim therefor, the
ascertainment of the amount thereof and the issuance of the warrant for the
payment thereof), whether permanent or temporary, or for any damage (whether
caused by such taking or otherwise) to said property or any part thereof or the
improvements thereon or any part thereof, or to any rights appurtenant thereto,
including severance and consequential damage, and any award for change of grade
of streets (collectively, "Condemnation Awards").
GRANTING CLAUSE V
All property and rights, if any, which are by the express provisions of
this Deed of Trust required to be subjected to the lien hereof and any
additional property and rights that may from time to time hereafter, by
installation or writing of any kind, be subjected to the lien hereof by Grantor
or by anyone in Grantor's behalf.
GRANTING CLAUSE VI
All rights in and to common areas and access roads on adjacent properties
heretofore or hereafter granted to Grantor and any after-acquired title or
reversion in and to the beds of any ways, roads, streets, avenues and alleys
adjoining the property described in Granting Clause I or any part thereof.
GRANTING CLAUSE VII
All proceeds of the conversion, voluntary or involuntary, of any of the
foregoing into cash or other liquidated claims, including, without limitation,
all proceeds and payments of insurance.
TO HAVE AND TO HOLD the Mortgaged Premises and the properties, rights and
privileges hereby granted, bargained, sold, conveyed, mortgaged, warranted,
pledged and assigned, and in which a security interest is granted, or intended
so to be, unto Trustee, its successors and assigns, forever.
IN TRUST NEVERTHELESS, upon the terms and trust herein set forth, for the
equal and proportionate benefit, security and protection of all present and
future holders of the indebtedness hereby secured; provided, however, that this
instrument is upon the express condition that if all of the indebtedness hereby
secured shall have been paid and performed in full and any commitment in the
Credit Agreement to advance B Loans shall have terminated, then this instrument
and the estate and rights hereby granted shall cease, determine and be void and
upon the written request and at the expense of Grantor, the Beneficiary shall
request Trustee to release this Deed of Trust, the Trustee to then release this
Deed of Trust without further inquiry or liability; otherwise this Deed of
Trust is to remain in full force and effect.
This Deed of Trust is given on the express condition that in no event will
this Deed of Trust secure any indebtedness, obligation and liabilities of the
Borrower or the Guarantors other than with respect to the principal of and
interest on the B Loans, and in particular this Deed of Trust will not secure
the A Loans or any sums owing in respect of L/Cs issued pursuant to the Credit
Agreement and the Applications.
Grantor hereby covenants and agrees with Trustee and Beneficiary as
follows:
1. Payment of the Indebtedness. The indebtedness hereby secured will be
promptly paid as and when the same becomes due.
2. Further Assurances. Grantor will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Deed of Trust and, without
limiting the foregoing, to make subject to the lien hereof any property agreed
to be subjected hereto or covered by the Granting Clauses hereof.
3. Ownership of the Mortgaged Premises. Grantor covenants and warrants
that it is lawfully seized of and has good and marketable fee title to the
Mortgaged Premises free and clear of all liens, charges and encumbrances
whatsoever except encumbrances in the policy of title insurance accepted by the
Beneficiary and those permitted under the Credit Agreement (collectively,
"Permitted Encumbrances") and Grantor has good title, full power and authority
to convey, transfer and mortgage the same to Trustee for the uses and purposes
set forth in this Deed of Trust; and Grantor will warrant and defend the title
to the Mortgaged Premises against all claims and demands whatsoever.
4. Possession. Provided no Event of Default has occurred and is
continuing hereunder, Grantor shall be suffered and permitted to remain in full
possession, enjoyment and control of the Mortgaged Premises, subject always to
the observance and performance of the terms of this Deed of Trust.
5. Payment of Taxes. Grantor shall pay before any penalty attaches, all
general taxes and all special taxes, special assessments, water, drainage and
sewer charges and all other charges of any kind whatsoever, ordinary or
extraordinary, which may be levied, assessed, imposed or charged on or against
the Mortgaged Premises or any part thereof and which, if unpaid, might by law
become a lien or charge upon the Mortgaged Premises or any part thereof, and
shall, upon written request, exhibit to Beneficiary official receipts
evidencing such payments, except that, unless and until foreclosure, distraint,
sale or other similar proceedings shall have been commenced, no such charge or
claim need be paid if being contested (except to the extent any full or partial
payment shall be required by law), after notice to Beneficiary, by appropriate
proceedings which shall operate to prevent the collection thereof or the sale
or forfeiture of the Mortgaged Premises or any part thereof to satisfy the
same, conducted in good faith and with due diligence and if Grantor shall have
furnished such security, if any, as may be required in the proceedings or
requested by Trustee or Beneficiary.
6. Payment of Taxes on Deed of Trust or Interest of Trustee, Beneficiary
or Lender. Grantor agrees that if any tax, assessment or imposition upon this
Deed of Trust or the indebtedness hereby secured arising by virtue of the fact
that this Deed of Trust has been executed and delivered, or the interest of
Trustee or Beneficiary in the Mortgaged Premises or upon Trustee, Beneficiary
or any Lender by reason of or as a holder of any of the foregoing (excepting
therefrom any income tax on interest payments on the principal portion of the
indebtedness hereby secured imposed by the United States or any state) is
levied, assessed or charged, then, unless all such taxes are paid by Grantor
to, for or on behalf of Trustee, Beneficiary or such Lender, as the case may
be, as they become due and payable (which Grantor agrees to do upon demand of
Trustee, Beneficiary or such Lender, to the extent permitted by law), or
Trustee, Beneficiary or such Lender, as the case may be, is reimbursed for
any such sum advanced by Trustee or Beneficiary, all sums hereby secured shall
become immediately due and payable, at the option of Trustee or Beneficiary
upon ninety (90) days' notice to Grantor, notwithstanding anything contained
herein or in any law heretofore or hereafter enacted, including any provision
thereof forbidding Grantor from making any such payment. Grantor agrees to
exhibit to Trustee, Beneficiary or any Lender, upon request, official receipts
showing payment of all taxes and charges which Grantor is required to pay
hereunder.
7. Recordation and Payment of Taxes and Expenses Incident Thereto.
Grantor will cause this Deed of Trust, all deeds of trust supplemental hereto
and any financing statement or other notice of a security interest required by
Trustee or Beneficiary at all times to be kept, recorded and filed at its own
expense in such manner and in such places as may be required by law for the
recording and filing or for the rerecording and refiling of a mortgage,
security interest, assignment or other lien or charge upon the Mortgaged
Premises, or any part thereof, in order fully to preserve and protect the
rights of Trustee and Beneficiary hereunder and, without limiting the
foregoing, Grantor will pay or reimburse Trustee or Beneficiary for the payment
of any and all taxes, fees or other charges incurred in connection with any
such recordation or rerecordation, including any documentary stamp tax or tax
imposed upon the privilege of having this Deed of Trust or any instrument
issued pursuant hereto recorded.
8. Insurance. Grantor will, at its expense, keep all buildings,
improvements, equipment and other property now or hereafter constituting part
of the Mortgaged Premises insured against loss or damage by fire, lightning,
windstorm, explosion, flood, earthquake, mechanical and electrical breakdown,
and such other risks as are usually included under "all risk" policies, or
which are usually insured against by owners of like property. Such coverage
shall be in amounts sufficient to prevent Grantor, Trustee or Beneficiary from
becoming a co-insurer of any loss under applicable policies and such coverage
shall provide that the losses are to be adjusted and paid on the basis of
replacement value without deduction for physical depreciation. Losses shall
be payable to Borrower and Beneficiary, such rights to be evidenced by the
usual standard non-contributory form of mortgage clause to be attached to
each policy. Grantor shall not carry separate insurance concurrent in kind or
form and contributing in the event of loss, with any insurance required hereby.
Grantor shall also obtain and maintain public liability and workers'
compensation insurance (or qualified self-insurance) in each case in form and
content reasonably satisfactory to Beneficiary and in amounts as are
customarily carried by owners of like property. All insurance required hereby
shall be maintained with good and responsible insurance companies reasonably
satisfactory to Beneficiary. Policies shall be issued such that: (i) no
deductible amount shall be in excess of $3,000,000 unless approved in writing
by Beneficiary, (ii) any losses shall be payable notwithstanding any act or
negligence of Grantor, and (iii) no cancellation or non-renewal thereof shall
be effective until at least thirty (30) days after receipt by Grantor and
Beneficiary of written notice thereof, and shall be reasonably satisfactory to
Beneficiary in all other material respects. Upon the execution of this Deed
of Trust and thereafter not less than fifteen (l5) days prior to the
expiration date of any policy delivered pursuant to this Deed of Trust,
Grantor will deliver to Beneficiary certificates of insurance showing that
Grantor has in effect insurance required by this Deed of Trust. In the event
of foreclosure, Grantor authorizes and empowers Beneficiary to effect insurance
upon the Mortgaged Premises in amounts aforesaid for a period covering the time
of redemption from foreclosure sale provided by law, and if necessary therefor
to cancel any or all existing insurance policies to the extent that they
apply to the Mortgaged Premises.
9. Damage to or Destruction of Mortgaged Premises.
(a) Notice. In case of any material damage to or destruction of
the Mortgaged Premises or any part thereof having a replacement cost value in
excess of $3,000,000, Grantor shall promptly give written notice thereof to
Beneficiary, generally describing the nature and extent of such damage or
destruction, except to the extent said Mortgaged Premises (i) prior to its
damage or destruction are uneconomical, obsolete or worn-out or (ii) are not
necessary for or of importance to the proper conduct of Mortgagor's business in
the ordinary course and all other parts of the Mortgaged Premises damaged or
destroyed during the preceding twelve (12) calendar months had a replacement
cost value, prior to its damage or destruction, of less than $3,000,000.
(b) Restoration. In case of any damage to or destruction of the
Mortgaged Premises or any part thereof, Grantor, whether or not the insurance
proceeds, if any, received on account of such damage or destruction shall be
sufficient for the purpose, at Grantor's expense, will promptly commence and
complete (subject to unavoidable delays occasioned by strikes, lockouts, acts
of God, inability to obtain labor or materials, governmental restrictions and
similar causes beyond the reasonable control of Grantor) the restoration,
replacement or rebuilding of the Mortgaged Premises as nearly as possible to
its value, condition and character immediately prior to such damage or
destruction, except to the extent such property is not necessary to the conduct
of the Grantor's business in the ordinary course, or apply such proceeds to the
prepayment of the indebtedness hereby secured.
(c) Adjustment of Loss. Grantor shall have the right to adjust
and compromise any losses under any insurance afforded pursuant hereto, but any
adjustment and/or compromise of losses involving damage or destruction of the
Mortgaged Premises or any part thereof in excess of $3,000,000 shall be subject
to final approval of Beneficiary.
(d) Application of Insurance Proceeds. Net insurance proceeds
received by Beneficiary under the provisions of this Deed of Trust or any
instruments supplemental hereto or thereto or under any policy or policies of
insurance covering the Mortgaged Premises or any part thereof shall first be
applied toward the payment of the amount owing on the indebtedness hereby
secured in such order of application as Beneficiary may elect whether or not
the same may then be due or be otherwise adequately secured; provided, however,
that such proceeds shall be made available for the restoration of the portion
of the Mortgaged Premises damaged or destroyed if written application for such
use is made within thirty (30) days of receipt of such proceeds and no Event
of Default or event which, with the passage of time, giving of notice, or both
would constitute an Event of Default, shall have occurred and be continuing
and, if the replacement cost of the portion of the Mortgaged Premises damaged
or destroyed exceeds $10,000,000, the following conditions are satisfied:
(i) Grantor has in effect business interruption insurance covering the income
to be lost during the restoration period as a result of the damage or
destruction to the Mortgaged Premises (subject to deductibles that do not
impair the Borrower's ability to pay its obligations during the restoration
period) or provides Beneficiary with other evidence satisfactory to it that
Grantor has cash resources sufficient to pay its obligations during the
restoration period; (ii) the effect of the damage to or destruction of the
Mortgaged Premises giving rise to receipt of the insurance proceeds is not to
terminate, or give a lessee the option to terminate, any lease of all or any
portion of the Mortgaged Premises; (iii) if an Event of Default, or event
which, with the lapse of time, the giving of notice, or both, would constitute
an Event of Default, shall occur during restoration Beneficiary may, at its
election, apply any insurance proceeds then remaining in its hands to the
reduction of the indebtedness hereby secured; (iv) Grantor shall have submitted
to Beneficiary plans and specifications for the restoration which shall be
satisfactory to it; and (v) Grantor shall submit to Beneficiary fixed price
contracts with good and responsible contractors and materialmen covering all
work and materials necessary to complete restoration and providing for a total
completion price not in excess of the amount of insurance proceeds available
for restoration, or, if a deficiency shall exist, Grantor shall have deposited
the amount of such deficiency with Beneficiary. Any insurance proceeds to be
released pursuant to the foregoing provisions may at the option of Beneficiary
be disbursed from time to time as restoration progresses to pay for restoration
work completed and in place and such disbursements may at Beneficiary's option
be made directly to Grantor or to or through any contractor or materialman to
whom payment is due or to or through a construction escrow to be maintained by
a title insurer acceptable to Beneficiary. Beneficiary may impose such further
conditions upon the release of insurance proceeds (including the receipt of
title insurance) as are customarily imposed by prudent construction lenders
to insure the completion of the restoration work free and clear of all liens or
claims for lien. All title insurance charges and other costs and expenses paid
to or for the account of Grantor in connection with the release of such
insurance proceeds shall constitute so much additional indebtedness hereby
secured to be payable upon demand with interest at the rate applicable to the B
Loans at the time such costs or expenses are incurred. Beneficiary may deduct
any such costs and expenses from insurance proceeds at any time standing in its
hands. If Grantor fails to request that insurance proceeds be applied to the
restoration of the improvements or if Grantor makes such a request but fails to
complete restoration within a reasonable time, Beneficiary shall have the
right, but not the duty, to release the proceeds thereof for use in restoring
the Mortgaged Premises or any part thereof for or on behalf of Grantor in lieu
of applying said proceeds to the indebtedness hereby secured and for such
purpose may do all acts necessary to complete such restoration, including
advancing additional funds in a commercially reasonable manner and in good
faith, and any additional funds so advanced shall constitute part of the
indebtedness hereby secured and shall be payable on demand with interest at the
Default Rate or such lower rate of interest as Grantor and all of the Lenders
may agree at the time such funds are advanced.
10. Eminent Domain. Grantor acknowledges that Condemnation Awards have
been assigned to Trustee and Beneficiary, which awards Trustee and Beneficiary
are hereby irrevocably authorized to collect and receive, and to give
appropriate receipts and acquittances therefor, and at Beneficiary's option, to
apply the same toward the payment of the amount owing on account of the
indebtedness hereby secured in such order of application as Beneficiary may
elect and whether or not the same may then be due and payable or otherwise
adequately secured, and Grantor covenants and agrees that Grantor will give
Beneficiary immediate notice of the actual or threatened commencement of any
proceedings under condemnation or eminent domain affecting all or any part of
the Mortgaged Premises including any easement therein or appurtenance thereof
or severance and consequential damage and change in grade of streets, and will
deliver to Beneficiary copies of any and all papers served in connection with
any such proceedings. Grantor further covenants and agrees to make, execute
and deliver to Beneficiary, at any time or times upon request, free, clear and
discharged of any encumbrances of any kind whatsoever, any and all further
assignments and/or instruments deemed necessary by Beneficiary for the purpose
of validly and sufficiently assigning all awards and other compensation
heretofore and hereafter to be made to Grantor for any taking, either permanent
or temporary, under any such proceeding.
11. Construction, Repair, Waste, Etc. Grantor agrees that no building or
other improvement on the Mortgaged Premises and constituting a part thereof and
having a fair market value in excess of $3,000,000 shall be removed or
demolished nor shall any fixtures or appliances on, in or about said buildings
or improvements be severed, removed, sold or mortgaged, without the consent of
Beneficiary and in the event of the demolition or destruction in whole or in
part of any property covered hereby, Grantor covenants that the same will be
replaced promptly by similar property at least equal in quality and condition
to those replaced, free from any security interest in or encumbrance thereon or
reservation of title thereto; to permit, commit or suffer no waste, impairment
or deterioration of the Mortgaged Premises or any part thereof; to keep and
maintain said Mortgaged Premises and every part thereof in such condition that
is commercially reasonable and in the ordinary course of business for
facilities in Grantor's industry; to comply in all material respects with all
statutes, orders, requirements or decrees relating to the Mortgaged Premises
by any federal, state or municipal authority; to observe and comply in all
material respects with all conditions and requirements necessary to preserve
and extend any and all rights, licenses, permits (including, but not limited
to, zoning variances, special exceptions and non-conforming uses), privileges,
franchises and concessions which are applicable to the Mortgaged Premises or
which have been granted to or contracted for by Grantor in connection with any
existing or presently contemplated use of the Mortgaged Premises or any part
thereof and not to initiate or acquiesce in any changes to or terminations of
any of the foregoing or of zoning classifications affecting the use to which
the Mortgaged Premises or any part thereof may be put that would materially
and adversely affect the Mortgaged Premises without the prior written consent
of Beneficiary. Notwithstanding the foregoing, nothing contained in this
Section 11 shall prohibit Grantor from making any repairs, improvements or
enhancements to any of the property covered hereby.
12. Liens and Encumbrances. Grantor will not, without the prior written
consent of Beneficiary, directly or indirectly, create or suffer to be created
or to remain and will discharge or promptly cause to be discharged any
mortgage, lien, encumbrance or charge on, pledge of, or conditional sale or
other title retention agreement with respect to, the Mortgaged Premises or any
part thereof, whether superior or subordinate to the lien hereof, except for
this Deed of Trust and the Permitted Encumbrances.
13. Right of Trustee or Beneficiary to Perform Grantor's Covenants, Etc.
If Grantor shall fail to make any payment or perform any act required to be
made or performed hereunder, Trustee or Beneficiary, without waiving or
releasing any obligation or default, may (but shall be under no obligation to)
at any time thereafter make such payment or perform such act for the account
and at the expense of Grantor, and may enter upon the Mortgaged Premises or
any part thereof for such purpose and take all such action thereon as, in the
opinion of Trustee or Beneficiary, may be reasonably necessary or appropriate
therefor. All sums so paid by Trustee or Beneficiary and all costs and
expenses (including without limitation reasonable attorneys' fees and expenses)
so incurred, together with interest thereon from the date of payment or
incurrence at the Default Rate, shall constitute so much additional
indebtedness hereby secured and shall be paid by Grantor to the party who made
such payment on demand. Trustee or Beneficiary in making any payment
authorized under this Section relating to taxes or assessments may do so
according to any bill, statement or estimate procured from the appropriate
public office without inquiry into the accuracy of such bill, statement or
estimate or into the validity of any tax assessment, sale, forfeiture, tax
lien or title or claim thereof. Trustee or Beneficiary, in performing any act
hereunder, shall be the sole judge of whether Grantor is required to perform
same under the terms of this Deed of Trust so long as it does so in good faith.
14. After-Acquired Property. Any and all property hereafter acquired
which is of the kind or nature described in granting clauses II, III, IV, V, VI
or VII shall ipso facto, and without any further conveyance, assignment or act
on the part of Grantor, become and be subject to the lien of this Deed of Trust
as fully and completely as though specifically described herein; but
nevertheless Grantor shall from time to time, if requested by Trustee or
Beneficiary, execute and deliver any and all such further assurances,
conveyances and assignments as Trustee or Beneficiary may reasonably require
for the purpose of expressly and specifically subjecting to the lien of this
Deed of Trust all such property.
15. Inspection by Trustee or Beneficiary. Trustee, Beneficiary and any
Lender shall have the right to inspect the Mortgaged Premises at all reasonable
times, and access thereto shall be permitted for that purpose, provided that
all such inspections shall be made in compliance with applicable health and
safety laws.
16. Subrogation. Grantor acknowledges and agrees that Trustee and
Beneficiary shall be subrogated to any lien discharged out of the proceeds of
any B Loans or out of any advance by Trustee or Beneficiary hereunder,
irrespective of whether or not any such lien may have been released of record.
17. Events of Default. Any one or more of the following shall constitute
an "Event of Default" hereunder:
(a) the Mortgaged Premises or any part thereof shall be sold,
transferred, or conveyed, whether voluntarily or involuntarily, by
operation of law or otherwise, except for sales permitted by the Credit
Agreement or sales of obsolete, worn out or unusable fixtures or personal
property; or
(b) any indebtedness secured by a lien or charge on the Mortgaged
Premises or any part thereof which is or could become prior to the lien
hereof is not paid when due or proceedings are commenced to foreclose or
otherwise realize upon any such lien or charge or to have a receiver
appointed for the property subject thereto or to place the holder of such
indebtedness or its representative in possession thereof; or
(c) any event occurs or condition exists which is specified as
an "Event of Default" under the Credit Agreement; or
(d) the Mortgaged Premises is abandoned (within the meaning of
the laws of the jurisdiction in which the Mortgaged Premises are located).
For the purposes of this Deed of Trust, the Mortgaged Premises shall be
deemed to have been sold, transferred or conveyed in the event that more than
fifty percent of the equity interest in Grantor shall be sold, transferred or
conveyed, whether voluntarily or involuntarily, subsequent to the date hereof
whether in one or a series of related or unrelated transactions.
18. Remedies. When any Event of Default has occurred and is continuing
or (regardless of the pendency of any proceeding which has or might have the
effect of preventing Grantor from complying with the terms of this instrument
and of the adequacy of the security for the indebtedness hereby secured), and
in addition to such other rights as may be available under applicable law, but
subject at all times to any mandatory legal requirements:
(a) Acceleration. Beneficiary may, by written notice to Grantor,
declare all unpaid indebtedness hereby secured, including any interest
then accrued thereon, to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without other notice or
demand of any kind.
(b) Uniform Commercial Code. Trustee shall, with respect to any
part of the Mortgaged Premises constituting property of the type in
respect of which realization on a lien or security interest granted
therein is governed by the Uniform Commercial Code, have all the rights,
options and remedies of a secured party under the Uniform Commercial Code
of Illinois, including without limitation, the right to the possession of
any such property, or any part thereof, and the right to enter without
legal process any premises where any such property may be found. Any
requirement of said Uniform Commercial Code for reasonable notification
shall be met by mailing written notice to Grantor at its address above set
forth at least ten (l0) days prior to the sale or other event for which
such notice is required. The costs and expenses of retaking, selling,
and otherwise disposing of said property, including reasonable attorneys'
fees and legal expenses incurred in connection therewith, shall constitute
so much additional indebtedness hereby secured and shall be payable upon
demand with interest at the Default Rate.
(c) Foreclosure. Trustee may proceed to protect and enforce the
rights of Trustee or Beneficiary hereunder (i) by any action at law, suit
in equity or other appropriate proceedings, whether for the specific
performance of any agreement contained herein, or for an injunction
against the violation of any of the terms hereof, or in aid of the
exercise of any power granted hereby or by law, or (ii) by the foreclosure
of this Deed of Trust.
(d) Exercise of Power of Sale. After the lapse of such time as
may then be required by law, if any, and notice of default and notice of
the time, place and terms of sale having been given as then required by
law, including without limitation Section 89-1-55 of the Mississippi
Code of 1972, as amended, Trustee, without demand on Grantor, shall sell
the Mortgaged Premises on the date and at the time and place designated
in the notice of sale, either as a whole or in separate parcels, and in
such order as Beneficiary may determine, at public auction to the highest
bidder, the purchase price payable in lawful money of the United States at
the time of sale. The person conducting the sale may, for any cause
deemed expedient, postpone the sale from time to time until it shall be
completed and, in every such case, notice of postponement shall be given
by public declaration thereof by such person at the time and place last
appointed for the sale. If the Mortgaged Premises is located in two
or more counties or two or more judicial districts of the same county, the
Trustee may sell the whole in any of the counties, or in either of the
judicial districts of a county in which any part of the land lies.
Trustee shall execute and deliver to the purchaser a Trustee's Deed
conveying the Property so sold, but without any covenant of warranty,
express or implied. The recitals in the Trustee's Deed of any matters or
facts shall be conclusive proof of the truthfulness thereof. Beneficiary
may bid at the sale. Trustee shall apply the proceeds of the sale as
provided in Section 3.6 of the Credit Agreement.
(e) Appointment of Receiver. Trustee or Beneficiary shall, as a
matter of right, without notice and without giving bond to Grantor or
anyone claiming by, under or through it, and without regard to the
solvency or insolvency of Grantor or the then value of the Mortgaged
Premises, be entitled to have a receiver appointed of all or any part of
the Mortgaged Premises and the rents, issues and profits thereof, with
such power as the court making such appointment shall confer, and Grantor
hereby consents to the appointment of such receiver and shall not oppose
any such appointment. Any such receiver may, to the extent permitted
under applicable law, without notice, enter upon and take possession of
the Mortgaged Premises or any part thereof by force, summary proceedings,
ejectment or otherwise, and may remove Grantor or other persons and any
and all property therefrom, and may hold, operate and manage the same and
receive all earnings, income, rents, issues and proceeds accruing with
respect thereto or any part thereof, whether during the pendency of any
foreclosure or until any right of redemption shall expire or otherwise.
(f) Taking Possession, Collecting Rents, Etc. Trustee or
Beneficiary or their agent may enter and take possession of the Mortgaged
Premises or any part thereof and manage, operate, insure, repair and
improve the same and take any action which, in Trustee's or Beneficiary's
judgment, is reasonably necessary or proper to conserve the value of the
Mortgaged Premises. Beneficiary may also take possession of, and for
these purposes use, any and all personal property contained in the
Mortgaged Premises and used in the operation, rental or leasing thereof
or any part thereof. Trustee or Beneficiary or their agent shall be
entitled to collect and receive all earnings, revenues, rents, issues and
profits of the Mortgaged Premises or any part thereof (and for such
purpose Grantor does hereby irrevocably constitute and appoint Beneficiary
its true and lawful attorney-in-fact for it and in its name, place and
stead to receive, collect and receipt for all of the foregoing, Grantor
irrevocably acknowledging that any payment made to Beneficiary hereunder
shall be a good receipt and acquittance against Grantor to the extent so
made) and to apply same to the reduction of the indebtedness hereby
secured. The right to enter and take possession of the Mortgaged Premises
and use any personal property therein, to manage, operate and conserve the
same, and to collect the rents, issues and profits thereof, shall be in
addition to all other rights or remedies of Trustee or Beneficiary
hereunder or afforded by law, and may be exercised concurrently therewith
or independently thereof. The costs and expenses (including any
receiver's fees, counsels' fees, costs and agent's compensation) incurred
pursuant to the powers herein contained shall be so much additional
indebtedness hereby secured which Grantor promises to pay upon demand
together with interest at the Default Rate. Trustee or Beneficiary shall
not be liable to account to Grantor for any action taken pursuant hereto
other than to account for any rents actually received by Trustee or
Beneficiary. Without taking possession of the Mortgaged Premises, Trustee
or Beneficiary may, in the event the Mortgaged Premises becomes vacant or
is abandoned, take such steps as it deems commercially reasonably
appropriate to protect and secure the Mortgaged Premises (including hiring
watchmen therefor) and all costs incurred in so doing shall constitute
so much additional indebtedness hereby secured payable upon demand with
interest thereon at the Default Rate.
19. Waiver of Right to Redeem From Sale - Waiver of Appraisement,
Valuation, Etc. Grantor shall not and will not apply for or avail itself of
any appraisement, valuation, stay, extension or exemption laws, or any
so-called "Moratorium Laws," now existing or hereafter enacted in order to
prevent or hinder the enforcement or foreclosure of this Deed of Trust, but
hereby waives the benefit of such laws. Grantor for itself and all who may
claim through or under it waives any and all right to have the property and
estates comprising the Mortgaged Premises marshalled upon any foreclosure of
the lien hereof and agrees that any court having jurisdiction to foreclose
such lien may order the Mortgaged Premises sold as an entirety. In the event
of any sale made under or by virtue of this Deed of Trust, the whole of the
Mortgaged Premises may be sold in one parcel as an entirety or in separate
lots or parcels at the same or different times, all as the Beneficiary may
determine. Grantor waives the provisions of Section 89-1-55 of the
Mississippi Code of 1972, as amended, and Section 111 of the Constitution of
the State of Mississippi, as far as such provisions restrict the right of
Trustee to offer at sale more than 160 acres at a time. Beneficiary shall
have the right to become the purchaser at any sale made under or by virtue of
this Deed of Trust and Beneficiary so purchasing at any such sale shall have
the right to be credited upon the amount of the bid made therefor by
Beneficiary with the amount payable to Trustee by Grantor out of the net
proceeds of such sale. In the event of any such sale, the indebtedness hereby
secured, if not previously due, shall be and become immediately due and payable
without demand or notice of any kind. Grantor hereby waives any and all rights
of redemption prior to or from sale under any order or decree of foreclosure
pursuant to rights herein granted, on behalf of Grantor, and each and every
person acquiring any interest in, or title to the Mortgaged Premises described
herein subsequent to the date of this Deed of Trust, and on behalf of all
other persons to the extent permitted by applicable law.
20. Costs and Expenses of Foreclosure. In case of any sale of the
Mortgaged Premises, or any part thereof, pursuant to any judgment or decree of
any court or pursuant to the power of sale herein contained or in connection
with the enforcement of any of the terms of this Deed of Trust or otherwise or
by virtue of this Deed of Trust, there shall be allowed and included as
additional indebtedness to be paid out of the proceeds of such sale, reasonable
Trustee's fees incurred in connection with any exercise of the power of sale
granted hereunder for all services rendered by Trustee, its agents, attorneys
and counsel in and about foreclosure, enforcement or other protection of this
Deed of Trust and all expenditures and expenses which may be paid or incurred
by or on behalf of Trustee and/or Beneficiary and any Lender for attorneys'
fees, appraisers' fees, environmental auditors' fees, outlays for documentary
and expert evidence, stenographic charges, publication costs and costs (which
may be estimated as the items to be expended after such Trustee's sale or the
entry of any foreclosure order or the decree) of procuring all such abstracts
of title, title searches and examination, guarantee policies, and similar
data and assurances with respect to title as Trustee or Beneficiary may deem
to be reasonably necessary either to prosecute any foreclosure action or to
evidence to the bidder at any sale pursuant thereto the true condition of the
title to or the value of the Mortgaged Premises, all of which expenditures
shall become so much additional indebtedness hereby secured which Grantor
agrees to pay and all of such shall be immediately due and payable with
interest thereon from the date of expenditure until paid at the Default Rate.
21. Application of Proceeds. The proceeds of any foreclosure or other
sale of the Mortgaged Premises or of any sale of property pursuant to Section
17(b) hereof shall be distributed as provided in Section 3.6 of the Credit
Agreement.
22. Deficiency Decree. If at any foreclosure proceeding the Mortgaged
Premises shall be sold for a sum less than the total amount of indebtedness for
which judgment is therein given, the judgment creditor shall be entitled to the
entry of a deficiency decree against Grantor for the amount of such deficiency;
and Grantor does hereby irrevocably consent to the appointment of a receiver
for the Mortgaged Premises and of the rents, issues and profits thereof after
such sale and until such deficiency decree is satisfied in full.
23. Trustee's, Beneficiary's and Lenders' Remedies Cumulative -
No Waiver. No remedy or right of Trustee, Beneficiary or any Lender shall be
exclusive of but shall be cumulative and in addition to every other remedy or
right now or hereafter existing at law or in equity or by statute or otherwise.
No delay in the exercise or omission to exercise any remedy or right accruing
on any default shall impair any such remedy or right or be construed to be a
waiver of any such default or acquiescence therein, nor shall it affect any
subsequent default of the same or a different nature. Every such remedy or
right may be exercised concurrently or independently, and when and as often
as may be deemed expedient by Trustee and Beneficiary.
24. Trustee and Beneficiary Party to Suits. If Trustee or Beneficiary
shall be made a party to or shall intervene in any action or proceeding
affecting the Mortgaged Premises or the title thereto or the interest of
Trustee and Beneficiary under this Deed of Trust (including probate and
bankruptcy proceedings), or if Trustee and Beneficiary employs an attorney
to collect any or all of the indebtedness hereby secured or to enforce any of
the terms hereof or realize hereupon or to protect the lien hereof, or if
Trustee and Beneficiary shall incur any costs or expenses in preparation for
the commencement of any foreclosure proceedings or for the defense of any
threatened suit or proceeding which might affect the Mortgaged Premises or the
security hereof, whether or not any such foreclosure or other suit or
proceeding shall be actually commenced, then in any such case, Grantor agrees
to pay to Trustee and Beneficiary, immediately and without demand, all
reasonable costs, charges, expenses and attorney's fees incurred by Trustee
and Beneficiary in any such case, and the same shall constitute so much
additional indebtedness hereby secured payable upon demand with interest at
the Default Rate.
25. Modifications Not to Affect Lien. Trustee and Beneficiary, without
notice to anyone, and without regard to the consideration, if any, paid
therefor, or the presence of other liens on the Mortgaged Premises, may in its
discretion release any part of the Mortgaged Premises or any person liable for
any of the indebtedness hereby secured, may extend the time of payment of any
of the indebtedness hereby secured and may grant waivers or other indulgences
with respect hereto and thereto, and may agree with Grantor to modifications to
the terms and conditions contained herein or otherwise applicable to any of the
indebtedness hereby secured (including modifications in the rates of interest
applicable thereto), without in any way affecting or impairing the liability of
any party liable upon any of the indebtedness hereby secured or the priority of
the lien of this Deed of Trust upon all of the Mortgaged Premises not expressly
released, and any party acquiring any direct or indirect interest in the
Mortgaged Premises shall take same subject to all of the provisions hereof.
26. Notices. Except as otherwise specified herein, all notices hereunder
shall be in writing (including, without limitation, notice by telecopy) and
shall be given to the relevant party, and shall be deemed to have been made
when given to the relevant party, in accordance with Section 11.7 of the Credit
Agreement.
27. Environmental Matters.
(a) Definitions. The following terms when used herein shall have
the following meanings:
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. SectionSection9601 et seq., and any
future amendments.
"Environmental Claim" means any investigation, notice, violation, demand,
allegation, action, suit, injunction, judgment, order, consent decree, penalty,
fine, lien, proceeding or claim (whether administrative, judicial or private in
nature) arising (a) pursuant to, or in connection with an actual or alleged
violation of, any Environmental Law, (b) in connection with any Hazardous
Material, (c) from any abatement, removal, remedial, corrective or response
action in connection with a Hazardous Material, Environmental Law or order of a
governmental authority, or (d) from any actual or alleged damage, injury,
threat or harm to health, safety, natural resources or the environment.
"Environmental Law" means any current or future Legal Requirement
pertaining to (a) the protection of health, safety and the indoor or outdoor
environment, (b) the conservation, management or use of natural resources and
wildlife, (c) the protection or use of surface water or groundwater, (d) the
management, manufacture, possession, presence, use, generation, transportation,
treatment, storage, disposal, Release, threatened Release, abatement, removal,
remediation or handling of, or exposure to, any Hazardous Material, or (e)
pollution (including any Release to air, land, surface water or groundwater),
and any amendment, rule, regulation, order or directive issued thereunder.
"Environmental Reports" means the Phase I Environmental Assessments of the
Mortgaged Premises described in Granting Clause I conducted and delivered
pursuant to the Credit Agreement.
"Hazardous Material" means any substance, chemical, compound, product,
solid, gas, liquid, waste, byproduct, pollutant, contaminant or material which
is hazardous or toxic, and includes, without limitation, (a) asbestos,
polychlorinated biphenyls and petroleum (including crude oil or any fraction
thereof) and (b) any material classified or regulated as "hazardous" or "toxic"
or words of like import pursuant to an Environmental Law.
"Hazardous Material Activity" means any activity, event or occurrence
involving a Hazardous Material, including, without limitation, the manufacture,
possession, presence, use, generation, transportation, treatment, storage,
disposal, Release, threatened Release, abatement, removal, remediation,
handling of or corrective or response action to any Hazardous Material.
"Legal Requirement" means any treaty, convention, statute, law,
regulation, ordinance, license, permit, governmental approval, injunction,
judgment, order, consent decree or other requirement of any governmental
authority, whether federal, state, or local.
"Material Adverse Effect" means any change or effect that individually or
in the aggregate is or is reasonably likely to be materially adverse to (a) the
assets, operations, income, condition (financial or otherwise) or business
prospects of the Grantor and its subsidiaries, taken as a whole, (b) the lien
of any mortgage, deed of trust or other security agreement covering the
Mortgaged Premises or any part thereof, (c) the ability of the Grantor and its
subsidiaries taken as a whole, to perform their obligations under any loan
agreement, promissory note, mortgage, deed of trust, security agreement or any
other instrument or document evidencing or securing any indebtedness,
obligations or liabilities of the Grantor and it subsidiaries taken as a whole,
owing to the Lenders or setting forth terms and conditions applicable thereto
or otherwise relating thereto, or (d) the condition or fair market value of the
Mortgaged Premises.
"RCRA" means the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments
of 1984, 42 U.S.C. SectionSection6901 et seq., and any future amendments.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, migration, dumping, or
disposing into the indoor or outdoor environment, including, without
limitation, the abandonment or discarding of barrels, drums, containers, tanks
or other receptacles containing or previously containing any Hazardous
Material.
(b) Representations and Warranties. Except as set forth in the
Environmental Reports, or on Schedule 27(b) attached hereto, the Grantor
represents and warrants that: (i) the Grantor and the Mortgaged Premises
comply in all material respects with all applicable Environmental Laws;
(ii) the Grantor has obtained all governmental approvals required for its
operations and the Mortgaged Premises by any applicable Environmental Law
except for such approvals which if not obtained could not reasonably be
expected to have a Material Adverse Effect; (iii) the Grantor has not, and
has no knowledge of any other person who has, caused any Release, threatened
Release or disposal of any Hazardous Material at, on, about, or off the
Mortgaged Premises that could reasonably be expected to have a Material
Adverse Effect on the Mortgaged Premises and, to the knowledge of the Grantor,
the Mortgaged Premises is not adversely affected by any Release, threatened
Release or disposal of a Hazardous Material originating or emanating from any
other property that has not been properly remediated; (iv) to Grantor's
knowledge, the Mortgaged Premises does not contain and has not contained any:
(1) underground storage tank, (2) amounts of asbestos containing building
material, (3) any landfills or dumps, (4) hazardous waste management facility
as defined pursuant to RCRA or any comparable state law, or (5) site on or
nominated for the National Priority List promulgated pursuant to CERCLA or any
state remedial priority list promulgated or published pursuant to any
comparable state law; (v) except in the ordinary course of business but always
in compliance in all material respects with all applicable laws, rules and
regulations, the Grantor has not used a material quantity of any Hazardous
Material and has conducted no Hazardous Material Activity at the Mortgaged
Premises; (vi) the Grantor has no material liability for response or corrective
action, natural resource damage or other harm pursuant to CERCLA, RCRA or any
comparable state law; (vii) the Grantor is not subject to, has no notice or
knowledge of and is not required to give any notice of any Environmental Claim
involving the Grantor or the Mortgaged Premises, and to Grantor's knowledge
there are no conditions or occurrences at the Mortgaged Premises which could
reasonably be anticipated to form the basis for an Environmental Claim against
the Grantor or the Mortgaged Premises; (viii) the Mortgaged Premises is not
subject to any, and the Grantor has no knowledge of any imminent, restriction
on the ownership, occupancy, use or transferability of the Mortgaged Premises
in connection with any (1) Environmental Law or (2) Release, threatened
Release or disposal of a Hazardous Material; and (ix) to Grantor's knowledge,
there are no conditions or circumstances at the Mortgaged Premises which pose
an unreasonable risk to the environment or the health or safety of persons.
(c) Covenants. The Grantor shall at all times do the following:
(i) comply in all material respects with, and maintain the Mortgaged Premises
in compliance in all material respects with, all applicable Environmental Laws;
(ii) require that each tenant and subtenant, if any, of the Mortgaged Premises
or any part thereof comply in all material respects with all applicable
Environmental Laws; (iii) obtain and maintain in full force and effect all
governmental approvals required by any applicable Environmental Law for
operations at the Mortgaged Premises except for such approvals which if not
obtained or maintained could not be reasonably expected to have a Material
Adverse Effect; (iv) cure any violation by it or at the Mortgaged Premises of
applicable Environmental Laws; (v) except as permitted by applicable
Environmental Law, not allow the presence or operation at the Mortgaged
Premises of any (1) landfill or dump or (2) hazardous waste management facility
or solid waste disposal facility as defined pursuant to RCRA or any comparable
state law; (vi) not manufacture, use, generate, transport, treat, store,
release, dispose or handle any Hazardous Material at the Mortgaged Premises
except in the ordinary course of its business and in compliance in all material
respects at all times with all applicable laws, rules or regulations;
(vii) within 10 business days notify the Beneficiary in writing of and provide
any requested documents upon learning of any of the following in connection
with the Grantor or the Mortgaged Premises which could reasonably be
anticipated to have a Material Adverse Effect: (1) any liability for response
or corrective action, natural resource damage or other harm pursuant to CERCLA,
RCRA or any comparable state law, (2) any Environmental Claim, (3) any
violation of an Environmental Law or Release, threatened Release or disposal
of a Hazardous Material, (4) any restriction on the ownership, occupancy, use
or transferability arising pursuant to any (x) Release, threatened Release or
disposal of a Hazardous Substance or (y) Environmental Law, or (5) any
environmental, natural resource, health or safety condition; (viii) conduct at
its expense any investigation, study, sampling, testing, abatement, cleanup,
removal, remediation or other response action necessary to remove, remediate,
clean up or abate any Release, threatened Release or disposal of a Hazardous
Material as required by any applicable Environmental Law; (ix) abide by and
observe any restrictions on the use of Mortgaged Premises imposed by any
governmental authority as set forth in a deed or other instrument affecting
the Grantor's interest therein; (x) promptly provide or otherwise make
available to the Beneficiary any requested environmental record concerning
the Mortgaged Premises which the Grantor possesses or can reasonably obtain;
and (xi) perform, satisfy, and implement any operation or maintenance actions
required by any governmental authority or Environmental Law, or included in any
no further action letter or covenant not to sue issued by any governmental
authority under any Environmental Law. Notwithstanding the foregoing, Grantor
shall be permitted to store and use Hazardous Materials on the Mortgaged
Premises in the ordinary course of business and in compliance with all
applicable laws.
28. Liens Absolute, Etc. The Grantor acknowledges and agrees that the
liens and security interests hereby created are absolute and unconditional and
shall not in any manner be affected or impaired by any acts or omissions
whatsoever of the Trustee, Beneficiary or any other holders of any of the
indebtedness hereby secured, and without limiting the generality of the
foregoing, the lien and security hereof shall not be impaired by any acceptance
by the Trustee, Beneficiary or any other holder of any of the indebtedness
hereby secured of any other security for or guarantors upon any of the
indebtedness hereby secured or by any failure, neglect or omission on the part
of the Trustee, Beneficiary or any other holder of any of the indebtedness
hereby secured to realize upon to protect any of the indebtedness hereby
secured or any collateral security therefor. The lien and security hereof
shall not in any manner be impaired or affected by any sale, pledge, surrender,
compromise, settlement, release, renewal, extension, indulgence, alteration,
substitution, exchange, change in, modification or disposition of any of the
indebtedness hereby secured, or of any collateral security therefor, or of any
guaranty thereof, or of any loan agreement executed in connection therewith.
In order to realize hereon and to exercise the rights granted Trustee and
Beneficiary hereby and under applicable law, there shall be no obligation on
the part of Trustee, Beneficiary or any other holder of any of the indebtedness
hereby secured at any time to first resort for payment to the obligor on any
note evidencing any of the indebtedness hereby secured or to any guaranty of
any of the indebtedness hereby secured or any part thereof or to resort to any
other collateral security, property, liens or any other rights or remedies
whatsoever, and Trustee shall have the right to enforce this instrument
irrespective of whether or not other proceedings or steps are pending seeking
resort to or realization upon or from any of the foregoing.
29. Direct and Primary Security - No Subrogation. The lien and security
herein created and provided for stands as direct and primary security for the
B Loans as well as for any of the other indebtedness hereby secured. No
application of any sums received by the Trustee or Beneficiary in respect of
the Mortgaged Premises or any disposition thereof to the reduction of the
indebtedness hereby secured or any part thereof shall in any manner entitle
Grantor to any right, title or interest in or to the indebtedness hereby
secured or any collateral security therefor, whether by subrogation or
otherwise, unless and until all indebtedness hereby secured has been fully paid
and satisfied.
30. Substitute Trustee. Trustee, or any substitute Trustee, may be
removed at any time with or without cause, at the option of Beneficiary, by
written declaration of such removal signed by any officer of Beneficiary and
duly recorded in the same records as this Deed of Trust, without any notice to
or demand upon Trustee or substitute Trustee so removed, or Grantor or any
other person. If at any time Trustee or any substitute Trustee should be so
removed, or should absent himself from ____________, die, or refuse, fail or be
unable to act as such Trustee or substitute Trustee, Beneficiary may appoint
any person as substitute Trustee hereunder, without any formality other than a
written declaration of such appointment executed by Beneficiary and duly
recorded in the same records as this Deed of Trust; and immediately upon such
appointment, the substitute Trustee so appointed shall automatically become
vested with all the estate and title in the Property, and with all of the
rights, powers, privileges, authority, options and discretions, and charged
with all of the duties and liabilities, vested in or imposed upon Trustee by
this Deed of Trust, and any conveyance executed by such substitute Trustee,
including the recitals therein contained, shall have the same effect and
validity as if executed by Trustee.
31. Line of Credit. The Deed of Trust is given to secure, a line of
credit and shall secure not only presently existing B Loans under the Credit
Agreement but also future B Loans, whether such B Loans are obligatory or to be
made at the option of Beneficiary, or otherwise, as are made within twenty (20)
years from the date hereof, to the same extent as if such future advances were
made on the date of the execution of this mortgage, although there may be no
advance made at the time of execution of this Deed of Trust and although there
may be no indebtedness hereby secured outstanding at the time any advance is
made. The lien of this Deed of Trust shall be valid as to all indebtedness
hereby secured, including future advances, from the time of its filing for
record in the recorder's or registrar's office of the county in which the
Mortgaged Premises are located. The total amount of indebtedness hereby
secured may increase or decrease from time to time, but the total unpaid
balance of indebtedness hereby secured (including disbursements which
Beneficiary may make under this Deed of Trust, the Credit Agreement or any
other documents related thereto) at any one time outstanding shall not exceed
a maximum principal amount of _____________________ Dollars ($____________)
plus interest thereon and any disbursements made for payment of taxes, special
assessments or insurance on the Mortgaged Premises and interest on such
disbursements, together with any fees, costs or expenses which may be payable
hereunder (all such indebtedness being hereinafter referred to as the "maximum
amount secured hereby"). This Deed of Trust shall be valid and have priority
over all subsequent liens and encumbrances, including statutory liens,
excepting solely taxes and assessments levied on the Mortgaged Premises, to
the extent of the maximum amount secured hereby.
32. Multisite Real Estate Transaction. Grantor acknowledges that this
Deed of Trust is one of several mortgages and other security documents (the
aforesaid being together called the "Other Security Documents") which secure
the indebtedness hereby secured. Grantor agrees that the lien of this Deed of
Trust shall be absolute and unconditional and shall not in any manner be
affected or impaired by any acts or omissions whatsoever of the Trustee or
Beneficiary and, without limiting the generality of the foregoing, the lien
hereof shall not be impaired by any acceptance by the Trustee or Beneficiary of
any security for or guarantors upon any of the indebtedness hereby secured, or
by any failure, neglect or omission on the part of the Trustee or Beneficiary
to realize upon or protect any of the indebtedness hereby secured or any
security therefor including the Other Security Documents. The lien hereof
shall not in any manner be impaired or affected by any release (except as to
the property released), sale, pledge, surrender, compromises, settlement,
renewal, extension, indulgence, alteration, changing, modification or
disposition of any of the indebtedness hereby secured or of any of the
collateral security therefor, including, without limitation, the Other
Security Documents or of any guarantee thereof, and the Trustee or Beneficiary
may at its discretion foreclose, exercise any power of sale, or exercise any
other remedy available to it under any or all of the Other Security Documents
without first exercising or enforcing any of its rights and remedies hereunder.
Such exercise of Trustee's or Beneficiary's rights and remedies under any or
all of the Other Security Documents shall not in any manner impair the
indebtedness hereby secured, except to the extent of payment, or the lien of
this Deed of Trust and any exercise of the rights or remedies of Trustee or
Beneficiary hereunder shall not impair the lien of any of the Other Security
Documents or any of Trustee's or Beneficiary's rights and remedies thereunder.
Grantor specifically consents and agrees that Beneficiary may exercise its
rights and remedies hereunder and under the Other Security Documents separately
or concurrently and in any order that it may deem appropriate.
33. Default Rate. For purposes of this Deed of Trust, the term "Default
Rate" shall mean the rate per annum determined by adding 2% to the rate per
annum announced from time to time by Harris Trust and Savings Bank as its prime
commercial rate, with any change in such rate per annum as so determined by
reason of a change in such prime commercial rate to become effective on the
date of such change in said prime commercial rate.
34. Governing Law. The creation of the Deed of Trust, the perfection of
the lien or security interest in the Mortgaged Premises, and the rights and
remedies of Trustee or Beneficiary with respect to the Mortgaged Premises, as
provided herein and by the laws of the state in which the Mortgaged Premises is
located, shall be governed by and construed in accordance with the internal
laws of the state in which the Mortgaged Premises is located without regard to
principles of conflicts of law. Otherwise, the Credit Agreement and all other
obligations of Grantor (including, but not limited to, the liability of Grantor
for any deficiency following a foreclosure of all or any part of the Mortgaged
Premises) shall be governed by and construed in accordance with the internal
laws of the State of Illinois without regard to principles of conflicts of
laws, such state being the state where such documents were executed and
delivered.
35. Agent. Beneficiary has been appointed as agent pursuant to the
Credit Agreement. In acting under or by virtue of this Deed of Trust,
Beneficiary shall be entitled to all the rights, authority, privileges and
immunities provided in Sections 10.1 through 10.14 of the Credit Agreement,
all of which provisions of said Sections 10.1 through 10.14 are incorporated
by reference herein with the same force and effect as if set forth herein.
Beneficiary hereby disclaims any representation or warranty to Lenders
concerning the perfection of the security interest granted hereunder or the
value of the Mortgaged Premises.
36. Partial Invalidity. All rights, powers and remedies provided herein
are intended to be limited to the extent necessary so that they will not render
this Deed of Trust invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law. If any term of this Deed of
Trust shall be held to be invalid, illegal or unenforceable, the validity and
enforceability of the other terms of this Deed of Trust shall in no way be
affected thereby.
37. Successors and Assigns. Whenever any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; and all the covenants, promises and agreements in this
Deed of Trust contained by or on behalf of Grantor, or by or on behalf of
Trustee or Beneficiary, shall bind and inure to the benefit of the respective
successors and assigns of such parties, whether so expressed or not.
38. Headings. The headings in this instrument are for convenience of
reference only and shall not limit or otherwise affect the meaning of any
provision hereof.
39. Changes, Etc. This instrument and the provisions hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
40. Acceptance of Trust. Trustee accepts this Trust when this Deed of
Trust, duly executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of pending sale under
any other deed of trust or any action or proceeding in which Grantor,
Beneficiary, or Trustee shall be a party, unless brought by Trustee.
IN WITNESS WHEREOF, Grantor has caused these presents to be signed and
sealed the day and year first above written.
By__________________________________________
Its_______________________________________
[SEAL]
Attest:
_______________________________
________________ Secretary
STATE OF __________ )
) SS
COUNTY OF _________ )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this _____ day of ____________, 2000, within my
jurisdiction, the within named __________, who acknowledged that (he)(she) is
_________ of ___________, a __________ corporation, and that for and on behalf
of the said corporation, and as its act and deed (he)(she) executed the above
and foregoing instrument, after having been duly authorized by said corporation
so to do.
______________________________________________________________________________
Notary Public
(SEAL)
My commission expires:
_________________________
<PAGE>
SCHEDULE I
LEGAL DESCRIPTION
Property Address: ___________________________________
___________________________________
P.I.N. No.: _______________________________
<PAGE>
EXHIBIT V
MISSISSIPPI CHEMICAL CORPORATION
PLEDGE AGREEMENT
This Pledge Agreement (the "Agreement") is dated as of February 24, 2000,
by and among Mississippi Chemical Corporation, a Mississippi corporation (the
"Borrower"), and the other parties executing this Agreement under the heading
"Pledgors" (the Borrower and such other parties, along with any parties who
execute and deliver to the Agent an agreement substantially in the form
attached hereto as Schedule F being hereinafter referred to collectively as the
"Pledgors" and individually as a "Pledgor"), each with its mailing address at
the address set forth on its signature page hereto and Harris Trust and Savings
Bank, an Illinois banking corporation ("HTSB"), with its mailing address at 111
West Monroe Street, Chicago, Illinois 60603, acting as administrative agent
hereunder for the Secured Creditors hereinafter identified and defined (HTSB
acting as such administrative agent and any successor or successors to HTSB
acting in such capacity being hereinafter referred to as the "Agent");
P R E L I M I N A R Y S T A T E M E N T S
A. The Borrower and HTSB, individually and as Agent, have entered into a
Credit Agreement dated as of November 25, 1997 (such Credit Agreement, as the
same has been and hereafter may be amended or modified from time to time,
including amendments and restatements thereof in its entirety, being
hereinafter referred to as the "Credit Agreement"), pursuant to which HTSB and
other banks and financial institutions from time to time party to the Credit
Agreement (HTSB, in its individual capacity, and such other banks and financial
institutions being hereinafter referred to collectively as the "Lenders" and
individually as a "Lender") have agreed, subject to certain terms and
conditions, to extend credit and make certain other financial accommodations
available to the Borrower (the Agent and the Lenders being hereinafter referred
to collectively as the "Secured Creditors" and individually as a "Secured
Creditor").
B. The Borrower and the other Pledgors may from time to time enter into
one or more interest rate exchange, swap, cap, collar, floor, or other similar
agreements, one or more commodity swaps or other similar agreements and one or
more foreign currency contracts, currency swap contracts or other similar
agreements with one or more of the Lenders party to the Credit Agreement, or
their affiliates, for the purpose of hedging or otherwise protecting against
interest rate, commodity and foreign currency exposure (the liability of the
Borrower and the other Pledgors in respect of such agreements with such Lenders
and their affiliates being hereinafter referred to as the "Hedging Liability").
C. As a condition to continuing to extend credit to the Borrower under
the Credit Agreement or entering into any Hedging Agreement, the Secured
Creditors have required, among other things, that each Pledgor grant to the
Agent for the benefit of the Secured Creditors a lien on and security interest
in certain personal property of such Pledgor described herein subject to the
terms and conditions hereof.
D. The Borrower owns, directly or indirectly, equity interests in each
other Pledgor and the Borrower provides each other Pledgor with financial,
management, administrative, and technical support which enables such Pledgor to
conduct its business in an orderly and efficient manner in the ordinary course.
E. Each Pledgor will benefit, directly or indirectly, from credit and
other financial accommodations extended by the Secured Creditors to the
Borrower.
NOW, THEREFORE, for and in consideration of the execution and delivery
by the Secured Creditors of the Credit Agreement, and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Terms Defined in Credit Agreement. All capitalized terms used
herein without definition shall have the same meanings herein as such terms
have in the Credit Agreement. The term "Pledgor" and "Pledgors" as used herein
shall mean and include the Pledgors collectively and also each individually,
with all grants, representations, warranties and covenants of and by the
Pledgors, or any of them, herein contained to constitute joint and several
grants, representations, warranties and covenants of and by the Pledgors;
provided, however, that unless the context in which the same is used shall
otherwise require, any grant, representation, warranty or covenant contained
herein related to the Collateral shall be made by each Pledgor only with
respect to the Collateral owned by it or represented by such Pledgor as owned
by it.
Section 2. Grant of Security Interest in the Collateral. Each Pledgor
hereby grants to the Agent for the benefit of the Secured Creditors a lien on
and security interest in, and acknowledges and agrees that the Agent has and
shall continue to have for the benefit of the Secured Creditors a continuing
lien on and security interest in, any and all right, title and interest of each
Pledgor in certain equity interests of each of its direct Subsidiaries as set
forth below, whether now owned or existing or hereafter created, acquired or
arising, and in whatever form, including the following:
(a) Stock Collateral. (i) All shares of the capital stock of
each Subsidiary which is a corporation owned or held by such Pledgor,
whether now owned or hereafter formed or acquired (those shares delivered
to and deposited with the Agent on or prior to the date hereof being
listed and described on Schedule A attached hereto), and all substitutions
and additions to such shares (herein, the "Pledged Securities"), (ii) all
dividends, distributions and sums distributable or payable from, upon or in
respect of the Pledged Securities, and (iii) all other rights and
privileges incident to the Pledged Securities (all of the foregoing being
hereinafter referred to collectively as the "Stock Collateral");
(b) Partnership Interest Collateral. (i) All partnership or
other equity interests in each Subsidiary which is a partnership (whether
general or limited) owned or held by such Pledgor, whether now owned or
hereafter formed or acquired (each of such equity interests existing on the
date hereof being listed and identified on Schedule B attached hereto)
(such partnerships being hereinafter referred to collectively as the
"Partnerships" and individually as a "Partnership"), (ii) any and all
payments and distributions of whatever kind or character, whether in cash
or other property, at any time made, owing or payable to such Pledgor in
respect of or on account of its present or hereafter acquired interests in
each Partnership, whether due or to become due and whether representing
profits, distributions pursuant to complete or partial liquidation or
dissolution of any such Partnership, distributions representing the
complete or partial redemption of such Pledgor's interest in any such
Partnership or the complete or partial withdrawal of such Pledgor from any
such Partnership, repayment of capital contributions, payment of management
fees or commissions, or otherwise, and the right to receive, receipt for,
use and enjoy all such payments and distributions, and (iii) all other
rights and privileges incident to such Pledgor's interest in each
Partnership (all of the foregoing being hereinafter collectively called
the "Partnership Interest Collateral");
(c) LLC Collateral. (i) All membership or other equity interests
in each Subsidiary which is a limited liability company owned or held by
such Pledgor, whether now owned or hereafter formed or acquired (each of
such equity interests existing on the date hereof being listed and
identified on Schedule C attached hereto) (such limited liability companies
being hereinafter referred to collectively as the "LLCs" and individually
as a "LLC"), (ii) any and all payments and distributions of whatever kind
or character, whether in cash or other property, at any time made, owing or
payable to such Pledgor in respect of or on account of its present or
hereafter acquired interests in each LLC, whether due or to become due and
whether representing profits, distributions pursuant to complete or partial
liquidation or dissolution of any such LLC, distributions representing the
complete or partial redemption of such Pledgor's interest in such LLC or
the complete or partial withdrawal of such Pledgor from any such LLC,
repayment of capital contributions, payment of management fees or
commissions, or otherwise, and the right to receive, receipt for, use and
enjoy all such payments and distributions, and (iii) all other rights and
privileges incident to such Pledgor's interest in each LLC (all of the
foregoing being hereinafter referred to as the "LLC Collateral"); and
(d) Proceeds. All proceeds of the foregoing;
all of the foregoing being herein sometimes referred to as the
"Collateral"; provided, however, that the Collateral shall exclude any and
all investments in (A) the Bank for Cooperatives, Houston Ammonia Terminal,
L.P., Precious Harvest, Farmland MissChem Limited and FMCL Limited
Liability Company, (B) MissChem Trinidad Limited, MissChem (Barbados) SRL
and MissChem Holdings Inc. to the extent the ability of any Debtor that is
an owner thereof to encumber its equity interest therein is subject to any
contractual prohibition, (C) any joint ventures (or other investments) that
are not Subsidiaries to the extent the ability of any Pledgor that is a
joint venturer therein to encumber its equity interest in such joint
venture is subject to any contractual prohibition, and (D) any equity
interest in any entity that is not a Significant Subsidiary (as defined in
the Senior Note Indenture). All terms which are used in this Agreement
which are defined in the Uniform Commercial Code of the State of Illinois
("UCC") shall have the same meanings herein as such terms are defined
in the UCC, unless this Agreement shall otherwise specifically provide.
Section 3. Obligations Hereby Secured. This Agreement is made and given
to secure, and shall secure, the prompt payment and performance when due of
(i) the principal of and interest on the B Loans as and when the same become
due and payable (whether by lapse of time, acceleration or otherwise) and the
payment and performance by the Guarantors of all of their indebtedness,
obligations and liabilities under the Guaranty relating only to the B Loans,
and (ii) any and all expenses and charges, legal or otherwise, suffered or
incurred by the Secured Creditors, and any of them individually, in collecting
or enforcing any of such indebtedness, obligations and liabilities described
in the foregoing clause (i) or in realizing on or protecting or preserving any
security therefor, including, without limitation, the lien and security
interest granted hereby (all of the indebtedness, obligations, liabilities,
expenses and charges described above being hereinafter referred to as the
"Obligations"); provided that the items described in clause (ii) above included
in the Obligations shall not exceed $1.00 less than the lowest amount that
would cause the aggregate amount of all Obligations to equal or exceed 15% of
the Borrower's Consolidated Net Tangible Assets on the date such items are
incurred. This Agreement is given on the express condition that in no event
will this Agreement secure any indebtedness, obligation and liabilities of the
Borrower or the Guarantors other than with respect to the principal of and
interest on the B Loans and amounts described in clause (ii) above relating
thereto, and in particular this Agreement will not secure the A Loans or any
sums owing in respect of L/Cs issued pursuant to the Credit Agreement and the
Applications or any Hedging Liability. Notwithstanding anything in this
Agreement to the contrary, the right of recovery against any Pledgor under this
Agreement (other than the Borrower to which this limitation shall not apply)
shall not exceed $1.00 less than the lowest amount which would render such
Pledgor's obligations under this Agreement void or voidable under applicable
law, including fraudulent conveyance law.
Section 4. Covenants, Agreements, Representations and Warranties. Each
Pledgor hereby covenants and agrees with, and represents and warrants to, the
Secured Creditors that:
(a) Each Pledgor is and shall be the sole and lawful legal,
record and beneficial owner of its Collateral. Each Pledgor's chief
executive office is at the address listed under such Pledgor's name on
Schedule A, Schedule B and Schedule C hereto, as applicable. Each Pledgor
agrees that it will not change any location set forth on the applicable
Schedule hereto without 30 days prior written notice to the Agent (provided
in all cases such locations shall be within the United States of America).
No Pledgor shall, without the Agent's prior written consent, sell, assign,
or otherwise dispose of the Collateral or any interest therein, except to
the extent permitted by Section 7.12 of the Credit Agreement. The
Collateral, and every part thereof, is and shall be free and clear of all
security interests, liens, rights, claims, attachments, levies and
encumbrances of every kind, nature and description and whether voluntary
or involuntary, except for the security interest of the Agent hereunder and
for other Liens permitted by Section 7.9 of the Credit Agreement. Each
Pledgor shall warrant and defend the Collateral against any claims and
demands of all persons at any time claiming the same or any interest in the
Collateral adverse to any Secured Creditor.
(b) Each Pledgor agrees to execute and deliver to the Agent such
further agreements, assignments, instruments and documents and to do all
such other things as the Agent may deem necessary or appropriate to assure
the Agent its lien and security interest hereunder, including such
assignments, acknowledgments (including acknowledgments of collateral
assignment in the form attached hereto as Schedule D), stock powers,
financing statements, instruments and documents as the Agent may from time
to time require in order to comply with the UCC. Each Pledgor hereby
agrees that a carbon, photographic or other reproduction of this Agreement
or any such financing statement is sufficient for filing as a financing
statement by the Agent without prior notice thereof to such Pledgor
wherever the Agent in its discretion desires to file the same. In the
event for any reason the law of any jurisdiction other than Illinois
becomes or is applicable to the Collateral or any part thereof, or to any
of the Obligations, each Pledgor agrees to execute and deliver all such
agreements, assignments, instruments and documents and to do all such
other things as the Agent in its discretion deems necessary or appropriate
to preserve, protect and enforce the lien and security interest of the
Agent under the law of such other jurisdiction.
(c) If, as and when any Pledgor (x) delivers any securities for
pledge hereunder in addition to those listed on Schedule A hereto or (y)
pledges interests in any partnership in addition to those listed on
Schedule B hereto or (z) pledges interests in any limited liability company
in addition to those listed on Schedule C hereto, the Pledgors shall
furnish to the Agent a duly completed and executed amendment to such
Schedule in substantially the form (with appropriate insertions) of
Schedule E hereto reflecting the additional securities, partnership
interests or limited liability company interests pledged hereunder after
giving effect to such addition.
(d) None of the Collateral constitutes margin stock (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve
System).
(e) On failure of any Pledgor to perform when due any of the
agreements and covenants herein contained, the Agent may, at its option,
perform the same and in so doing may expend such sums as the Agent
reasonably deems advisable in the performance thereof, including, without
limitation, the payment of any taxes, liens and encumbrances, expenditures
made in defending against any adverse claim, and all other expenditures
which the Agent may be compelled to make by operation of law or which
Agent may make by agreement or otherwise for the protection of the security
hereof. All such sums and amounts so expended shall be repayable by the
Pledgors upon demand, shall constitute additional Obligations secured
hereunder and shall bear interest from the date said amounts are expended
at the rate per annum (computed on the basis of a year of 365 or 366 days,
as the case may be, for the actual number of days elapsed) determined by
adding 2% to the Base Rate from time to time in effect plus the Applicable
Margin for Base Rate Loans under the Revolving Credit (such rate per annum
as so determined being hereinafter referred to as the "Default Rate").
No such performance of any covenant or agreement by the Agent on behalf of
such Pledgor, and no such advancement or expenditure therefor, shall
relieve such Pledgor of any default under the terms of this Agreement or
in any way obligate any Secured Creditor to take any further or future
action with respect thereto. The Agent, in making any payment hereby
authorized, may do so according to any bill, statement or estimate
procured from the appropriate public office or holder of the claim to be
discharged without inquiry into the accuracy of such bill, statement or
estimate, or into the validity of any tax assessment, sale, forfeiture, tax
lien or title or claim. The Agent, acting reasonably and in good faith,
in performing any act hereunder, shall be the sole judge of whether the
relevant Pledgor is required to perform the same under the terms of this
Agreement. The Agent is hereby authorized to charge any depository or
other account of any Pledgor maintained with any Secured Creditor for the
amount of such sums and amounts so expended.
Section 5. Special Provisions Re: Stock Collateral.
Each Pledgor further represents and warrants to, and agrees with, the
Secured Creditors as follows:
(a) Each Pledgor has the right to vote the Pledged Securities and
there are no restrictions upon the voting rights associated with, or the
transfer of, any of the Pledged Securities, except as provided by federal
and state and, with respect to Foreign Companies, foreign laws applicable
to the sale of securities generally and the terms of this Agreement.
(b) The certificates for all shares of the Pledged Securities
shall be delivered by the relevant Pledgor to the Agent duly endorsed in
blank for transfer or accompanied by an appropriate assignment or
assignments or an appropriate undated stock power or powers, in every case
sufficient to transfer title thereto. The Agent may, at any time after
the occurrence of an Event of Default, cause to be transferred into its
name or into the name of its nominee or nominees any and all of the
Pledged Securities. The Agent shall at all times have the right to
exchange the certificates representing the Pledged Securities for
certificates of smaller or larger denominations.
(c) The Pledged Securities have been validly issued and, except
as described on Schedule A, are fully paid and non-assessable. Except as
set forth on Schedule A, there are no outstanding commitments or other
obligations of the issuers of any of the Pledged Securities to issue, and
no options, warrants or other rights of any individual or entity to
acquire, any share of any class or series of capital stock of such
issuers. The Pledged Securities listed and described on Schedule A
attached hereto constitute the percentage of the issued and outstanding
capital stock of each series and class of the issuers thereof as set forth
thereon owned by the relevant Pledgor. Each Pledgor further agrees that in
the event any such issuer shall issue any additional capital stock of any
series or class (whether or not entitled to vote) to such Pledgor or
otherwise on account of its ownership interest therein, subject to the
limitations set forth in Section 2(a) above, such Pledgor will forthwith
pledge and deposit hereunder, or cause to be pledged and deposited
hereunder, all such additional shares of such capital stock.
Section 6. Special Provisions Re: Partnership Interest Collateral and LLC
Collateral.
(a) Each Pledgor further represents and warrants to, and agrees
with, the Secured Creditors as follows:
(i) each Partnership is a valid and existing entity of the
type listed on Schedule B and is duly organized and existing under
applicable law; and each LLC is duly organized and existing under
applicable law;
(ii) the Partnership Interest Collateral listed and
described on Schedule B attached hereto constitutes the percentage of
the equity interest in each Partnership set forth thereon owned by
the relevant Pledgor; and the LLC Collateral listed and described on
Schedule C attached hereto constitutes the percentage of the equity
interest in each LLC set forth thereon owned by the relevant Pledgor;
and
(iii) the copies of the partnership agreements of each
Partnership and the certificates of formation and operating
agreements of each LLC (each such agreement being hereinafter
referred to as "Organizational Agreement") heretofore delivered to
the Agent are true and correct copies thereof and have not been
amended or modified in any respect.
(b) Each Pledgor agrees that it shall not, without the prior
written consent of the Agent, agree to any amendment or modification to
any of the Organizational Agreements which would in any manner adversely
affect or impair the Partnership Interest Collateral or LLC Collateral or
reduce or dilute the rights of such Pledgor with respect to any Partnership
or LLC, any of such done without such prior written consent to be null and
void. The Pledgors shall promptly send to the Agent copies of all notices
and communications with respect to each Partnership and each LLC alleging
the existence of a default by any Pledgor in the performance of any of its
obligations under any Organizational Agreement. Each Pledgor agrees that
it will promptly notify the Agent of any litigation which is reasonably
likely to have a material adverse effect on any Secured Creditor's rights
under this Agreement or on the value of the Collateral or on any Pledgor's
ability to use any of the Collateral in the ordinary course of its business
(a "Material Adverse Effect") or is reasonably likely to materially and
adversely affect a Partnership or a LLC or any of their respective
properties and of any material adverse change in the operations, business
properties, assets or conditions, financial or otherwise, of any Pledgor
or any Partnership or any LLC. Each Pledgor shall perform when due all
of its obligations under each Organizational Agreement. In the event any
Pledgor fails to pay or perform any obligation arising under any
Organizational Agreement or otherwise related to any Partnership or any
LLC, the Agent may, but need not, pay or perform such obligation at the
expense and for the account of the Pledgors and all funds expended for
such purposes shall constitute Obligations secured hereby which the
Pledgors promise to pay to the Agent together with interest thereon at
the Default Rate.
(c) The certificates, if any, at any time evidencing any
Pledgor's interest in any Partnership or LLC shall be delivered to the
Agent duly endorsed in blank for transfer or accompanied by an appropriate
assignment or assignments or an appropriate undated stock power or powers,
in every case sufficient to transfer title thereto. The Agent may, at any
time after the occurrence of an Event of Default, cause to be transferred
into its name or the name of its nominee or nominees, any and all of such
Collateral. The Agent shall at all times have the right to exchange the
certificates representing such Collateral for certificates of smaller or
larger denominations.
(d) Each Pledgor has the right to vote its interest in each
Partnership and LLC (except as set forth herein) and there are no
restrictions upon the voting rights associated with, or the transfer of,
any of the Partnership Interest Collateral or LLC Collateral, except as
provided by federal and state laws applicable to the sale of securities
generally, the terms of any Organizational Agreement under which such
person is organized and the terms of this Agreement.
(e) Except as set forth on Schedule C, there are no outstanding
commitments or other obligations of any LLC to issue, and no options,
warrants or other rights of any individual or entity to acquire, any
interest in such LLC.
(f) Each Pledgor further agrees that in the event it shall
acquire any additional interests in any Partnership or LLC, such Pledgor
will forthwith pledge and deposit hereunder or cause to be pledged and
deposited hereunder, all such additional interests.
Section 7. Voting Rights and Dividends. Unless and until an Event of
Default hereunder has occurred and is continuing and thereafter until notified
by the Agent pursuant to Section 9(b) hereof:
(a) Each Pledgor shall be entitled to exercise all voting and/or
consensual powers pertaining to the Collateral of such Pledgor, or any part
thereof, for all purposes not inconsistent with the terms of this Agreement
or any other document evidencing or otherwise relating to any of the
Obligations.
(b) Each Pledgor shall be entitled to receive and retain all
dividends and distributions in respect of the Collateral which are paid in
cash of whatsoever nature; provided, however, that such dividends and
distributions representing:
(i) stock or liquidating dividends or a distribution or
return of capital upon or in respect of the Pledged Securities or
any part thereof or resulting from a split-up, revision or
reclassification of the Pledged Securities or any part thereof or
received in addition to, in substitution of or in exchange for the
Pledged Securities or any part thereof as a result of a merger,
consolidation or otherwise; or
(ii) distributions in complete or partial liquidation of any
Partnership or LLC or the interest of such Pledgor therein;
in each case, shall be paid, delivered or transferred, as appropriate,
directly to the Agent immediately upon the receipt thereof by such Pledgor
and may, in the case of cash, be applied by the Agent to the Obligations in
accordance with the terms of the Credit Agreement, whether or not the same
may then be due or otherwise adequately secured and shall, in the case of
all other property, together with any cash received by the Agent and not
applied as aforesaid, be held by the Agent pursuant hereto as part of the
Collateral pledged under and subject to the terms of this Agreement.
(c) In order to permit each Pledgor to exercise such voting and/
or consensual powers which it is entitled to exercise under subsection
(a) above and to receive such distributions which such Pledgor is entitled
to receive and retain under subsection (b) above, the Agent will, if
necessary, upon the written request of such Pledgor, from time to time
execute and deliver to such Pledgor appropriate proxies and dividend
orders.
Section 8. Power of Attorney. Each Pledgor hereby appoints the Agent,
its nominee, or any other person whom the Agent may designate as such Pledgor's
attorney-in-fact, with full power and authority upon the occurrence and during
the continuation of any Event of Default to ask, demand, collect, receive,
receipt for, sue for, compound and give acquittance for any and all sums or
properties which may be or become due, payable or distributable in respect of
the Collateral or any part thereof, with full power to settle, adjust or
compromise any claim thereunder or therefor as fully as such Pledgor could
itself do, to endorse or sign the Pledgor's name on any assignments, stock
powers, or other instruments of transfer and on any checks, notes, acceptances,
money orders, drafts, and any other forms of payment or security that may come
into the Agent's possession and on all documents of satisfaction, discharge or
receipt required or requested in connection therewith, and, in its discretion,
to file any claim or take any other action or proceeding, either in its own
name or in the name of such Pledgor, or otherwise, which the Agent deems
necessary or appropriate to collect or otherwise realize upon all or any part
of the Collateral, or effect a transfer thereof, or which may be necessary or
appropriate to protect and preserve the right, title and interest of the Agent
in and to such Collateral and the security intended to be afforded hereby.
Each Pledgor hereby ratifies and approves all acts of any such attorney and
agrees that neither the Agent nor any such attorney will be liable for any
such acts or omissions nor for any error of judgment or mistake of fact or law
other than such person's gross negligence or willful misconduct. The Agent
may file one or more financing statements disclosing its security interest in
all or any part of the Collateral without any Pledgor's signature appearing
thereon, and each Pledgor also hereby grants the Agent a power of attorney to
execute any such financing statements, and any amendments or supplements
thereto, on behalf of such Pledgor without notice thereof to such Pledgor.
The foregoing powers of attorney, being coupled with an interest, are
irrevocable until the Obligations have been fully satisfied and all
commitments of the Lenders to extend credit to or for the account of the
Borrower under the Credit Agreement have expired or otherwise terminated.
Section 9. Defaults and Remedies. (a) The occurrence of any event or the
existence of any condition which is specified as an "Event of Default" under
the Credit Agreement shall constitute an "Event of Default" hereunder.
(b) Upon the occurrence and during the continuation of any Event of
Default, all rights of the Pledgors to receive and retain the distributions
which they are entitled to receive and retain pursuant to Section 7(b) hereof
shall, at the option of the Agent, cease and thereupon become vested in the
Agent which, in addition to all other rights provided herein or by law, shall
then be entitled solely and exclusively to receive and retain the distributions
which the Pledgors would otherwise have been authorized to retain pursuant to
Section 7(b) hereof and all rights of the Pledgors to exercise the voting and/
or consensual powers which they are entitled to exercise pursuant to Section
7(a) hereof shall, at the option of the Agent, cease and thereupon become
vested in the Agent which, in addition to all other rights provided herein or
by law, shall then be entitled solely and exclusively to exercise all voting
and other consensual powers pertaining to the Collateral and to exercise any
and all rights of conversion, exchange or subscription and any other rights,
privileges or options pertaining thereto as if the Agent were the absolute
owner thereof including, without limitation, the right to exchange, at its
discretion, the Collateral or any part thereof upon the merger, consolidation,
reorganization, recapitalization or other readjustment of the respective
issuer thereof or upon the exercise by or on behalf of any such issuer or the
Agent of any right, privilege or option pertaining to the Collateral or any
part thereof and, in connection therewith, to deposit and deliver the
Collateral or any part thereof with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as the
Agent may determine. In the event the Agent in good faith believes any of the
Collateral constitutes restricted securities within the meaning of any
applicable securities law, any disposition thereof in compliance with such
laws shall not render the disposition commercially unreasonable.
(c) Upon the occurrence and during the continuation of any Event of
Default, the Agent shall have, in addition to all other rights provided herein
or by law, the rights and remedies of a secured party under the UCC (regardless
of whether the UCC is the law of the jurisdiction where the rights or remedies
are asserted and regardless of whether the UCC applies to the affected
Collateral), and further the Agent may, without demand and, to the extent
permitted by applicable law, without advertisement, notice, hearing or process
of law to the extent permitted by applicable law, all of which each Pledgor
hereby waives to the extent permitted by applicable law, at any time or times,
sell and deliver any or all of the Collateral held by or for it at public or
private sale, at any securities exchange or broker's board or at any of the
Agent's offices or elsewhere, for cash, upon credit or otherwise, at such
prices and upon such terms as the Agent deems advisable, in its sole
discretion. In the exercise of any such remedies, the Agent may sell the
Collateral as a unit even though the sales price thereof may be in excess of
the amount remaining unpaid on the Obligations. Also, if less than all the
Collateral is sold, the Agent shall have no duty to marshal or apportion the
part of the Collateral so sold as between the Pledgors, or any of them, but
may sell and deliver any or all of the Collateral without regard to which of
the Pledgors are the owners thereof. In addition to all other sums due any
Secured Creditor hereunder, each Pledgor shall pay the Secured Creditors all
costs and expenses incurred by the Secured Creditors, including reasonable
attorneys' fees and court costs, in obtaining, liquidating or enforcing payment
of Collateral or the Obligations or in the prosecution or defense of any action
or proceeding by or against any Secured Creditor or any Pledgor concerning any
matter arising out of or connected with this Agreement or the Collateral or the
Obligations including, without limitation, any of the foregoing arising in,
arising under or related to a case under the United States Bankruptcy Code (or
any successor statute). Any requirement of reasonable notice shall be met if
such notice is personally served on or mailed, postage prepaid, to the Pledgors
in accordance with Section 14(b) hereof at least 10 days before the time of
sale or other event giving rise to the requirement of such notice; provided,
however, no notification need be given to a Pledgor if such Pledgor has signed,
after an Event of Default has occurred, a statement renouncing any right to
notification of sale or other intended disposition. The Agent shall not be
obligated to make any sale or other disposition of the Collateral regardless
of notice having been given. Any Secured Creditor may be the purchaser at any
such sale. Each Pledgor hereby waives all of its rights of redemption from
any such sale. Subject to mandatory provisions of applicable law, the Agent
may postpone or cause the postponement of the sale of all or any portion of the
Collateral by announcement at the time and place of such sale, and such sale
may, without further notice, be made at the time and place to which the sale
was postponed or the Agent may further postpone such sale by announcement made
at such time and place.
EACH PLEDGOR AGREES THAT IF ANY PART OF THE COLLATERAL IS SOLD AT ANY
PUBLIC OR PRIVATE SALE, THE AGENT MAY ELECT TO SELL ONLY TO A BUYER WHO WILL
GIVE FURTHER ASSURANCES, SATISFACTORY IN FORM AND SUBSTANCE TO THE AGENT,
RESPECTING COMPLIANCE WITH THE REQUIREMENTS OF THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS, AND A SALE SUBJECT TO
SUCH CONDITION SHALL BE DEEMED COMMERCIALLY REASONABLE.
EACH PLEDGOR FURTHER AGREES THAT IN ANY SALE OF ANY PART OF THE
COLLATERAL, THE AGENT IS HEREBY AUTHORIZED TO COMPLY WITH ANY LIMITATION OR
RESTRICTION IN CONNECTION WITH SUCH SALE AS IT MAY BE ADVISED BY COUNSEL IS
NECESSARY IN ORDER TO AVOID ANY VIOLATION OF APPLICABLE LAW (INCLUDING, WITHOUT
LIMITATION, COMPLIANCE WITH SUCH PROCEDURES AS MAY RESTRICT THE NUMBER OF
PROSPECTIVE BIDDERS AND PURCHASERS AND/OR FURTHER RESTRICT SUCH PROSPECTIVE
BIDDERS OR PURCHASERS TO PERSONS WHO WILL REPRESENT AND AGREE THAT THEY ARE
PURCHASING FOR THEIR OWN ACCOUNT FOR INVESTMENT AND NOT WITH A VIEW TO THE
DISTRIBUTION OR RESALE OF SUCH COLLATERAL ), OR IN ORDER TO OBTAIN ANY REQUIRED
APPROVAL OF THE SALE OR OF THE PURCHASER BY ANY GOVERNMENTAL REGULATORY
AUTHORITY OR OFFICIAL, AND EACH PLEDGOR FURTHER AGREES THAT SUCH COMPLIANCE
SHALL NOT RESULT IN SUCH SALE BEING CONSIDERED OR DEEMED NOT TO HAVE BEEN MADE
IN A COMMERCIALLY REASONABLE MANNER, NOR SHALL THE AGENT BE LIABLE OR
ACCOUNTABLE TO ANY PLEDGOR FOR ANY DISCOUNT ALLOWED BY REASON OF THE FACT THAT
SUCH COLLATERAL IS SOLD IN COMPLIANCE WITH ANY SUCH LIMITATION OR RESTRICTION.
(d) In the event the Agent shall sell or otherwise dispose of all or any
part of the Partnership Interest Collateral or LLC Collateral, each Pledgor
hereby grants the purchaser of such portion of the Partnership Interest
Collateral or LLC Collateral to the fullest extent of its capacity, the ability
(but not the obligation) to become a partner or member in the relevant
Partnership or LLC, as the case may be (subject to the approval of the relevant
Partnership or LLC, as the case may be, in the exercise of its discretion in
accordance with its Organizational Agreement and subject to any requirements of
applicable law), in the place and stead of such Pledgor. To exercise such
right, the purchaser shall comply with the applicable Organizational Agreement
and give written notice to the relevant Partnership or LLC, as the case may be,
of its election to become a partner or member in such Partnership or LLC.
Following such election and giving of consent by all necessary partners or
members of the relevant Partnership or LLC as to the purchaser becoming a
partner or member, the purchaser shall have the right and powers and be subject
to the liabilities of a partner or member under the relevant Organizational
Agreement and the partnership or limited liability company act governing the
Partnership or LLC.
(e) Upon the occurrence and during the continuation of any Event of
Default, in addition to all other rights provided herein or by law, the Agent
shall have the right to cause all or any part of the Partnership Interest
Collateral or LLC Collateral of any of the Pledgors in any one or more of the
Partnerships or LLCs to be redeemed and to cause a withdrawal, in whole or in
part, of any Pledgor from any Partnership or LLC or any of its interest
therein.
(f) The powers conferred upon the Agent hereunder are solely to protect
its interest in the Collateral and shall not impose on it any duties to
exercise such powers. The Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Collateral in its possession if
the Collateral is accorded treatment substantially equivalent to that which
the Agent accords its own property, consisting of similar types securities, it
being understood, however, that the Agent shall have no responsibility for
(i) ascertaining or taking any action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relating to any Collateral,
whether or not the Agent has or is deemed to have knowledge of such matters,
(ii) taking any necessary steps to preserve rights against any parties with
respect to any Collateral, or (iii) initiating any action to protect the
Collateral or any part thereof against the possibility of a decline in market
value. This Agreement constitutes an assignment of rights only and not an
assignment of any duties or obligations of the Pledgors in any way related to
the Collateral, and the Agent shall have no duty or obligation to discharge
any such duty or obligation. By its acceptance hereof, the Agent does not
undertake to perform or discharge and shall not be responsible or liable for
the performance or discharge of any such duties or responsibilities and shall
not in any event become a "Substituted Limited Partner" or words of like import
(as defined in the relevant Organizational Agreement) in the relevant
Partnership. Neither any Secured Creditor, nor any party acting as attorney
for any Secured Creditor, shall be liable hereunder for any acts or omissions
or for any error of judgment or mistake of fact or law other than such person's
gross negligence or willful misconduct.
(g) Failure by the Agent to exercise any right, remedy or option under
this Agreement or any other agreement between any Pledgor and the Agent or
provided by law, or delay by the Agent in exercising the same, shall not
operate as a waiver; and no waiver shall be effective unless it is in writing,
signed by the party against whom such waiver is sought to be enforced and
then only to the extent specifically stated. The rights and remedies of the
Secured Creditors under this Agreement shall be cumulative and not exclusive
of any other right or remedy which the any Secured Creditor may have.
Section 10. Application of Proceeds. The proceeds and avails of the
Collateral at any time received by the Agent upon the occurrence and during the
continuation of any Event of Default shall, when received by the Agent in cash
or its equivalent, be applied by the Agent in reduction of, or held as
collateral security for, the Obligations in accordance with the terms of the
Credit Agreement. The Pledgors shall remain liable to the Secured Creditors
for any deficiency in the Obligations. Any surplus remaining after the full
payment and satisfaction of the Obligations shall be returned to the Borrower,
as agent for Pledgors, or to whomsoever the Agent reasonably determines is
lawfully entitled thereto.
Section 11. Continuing Agreement. This Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect until all
of the Obligations, both for principal and interest, have been fully paid and
satisfied and the commitments of the Secured Creditors to make B Loans to the
Borrower under the Credit Agreement shall have expired or otherwise terminated.
Upon such termination of this Agreement, the Agent shall, upon the request and
at the expense of the Pledgors, forthwith release all its liens and security
interests hereunder.
Section 12. Primary Security; Obligations Absolute. The lien and security
herein created and provided for stand as direct and primary security for the
Obligations of the Borrower arising under or otherwise relating to the Credit
Agreement as well as for the other Obligations secured hereby. No application
of any sums received by the Agent in respect of the Collateral or any
disposition thereof to the reduction of the Obligations or any portion thereof
shall in any manner entitle any Pledgor to any right, title or interest in or
to the Obligations or any collateral security therefor, whether by subrogation
or otherwise, unless and until all Obligations have been fully paid and
satisfied and all commitments to make B Loans to the Borrower under the Credit
Agreement have expired or otherwise terminated. Each Pledgor acknowledges and
agrees that the lien and security hereby created and provided for are absolute
and unconditional and shall not in any manner be affected or impaired by any
acts or omissions whatsoever of any Secured Creditor or any other holder of any
of the Obligations, and without limiting the generality of the foregoing, the
lien and security hereof shall not be impaired by any acceptance by any Secured
Creditor or any other holder of any of the Obligations of any other security
for or guarantors upon any Obligations or by any failure, neglect or omission
on the part of any Secured Creditor or any other holder of any of the
Obligations to realize upon or protect any of the Obligations or any collateral
security therefor. The lien and security hereof shall not in any manner be
impaired or affected by (and the Secured Creditors, without notice to anyone,
are hereby authorized to make from time to time) any sale, pledge, surrender,
compromise, settlement, release, renewal, extension, indulgence, alteration,
substitution, exchange, change in, modification or disposition of any of the
Obligations, or of any collateral security therefor, or of any guaranty
thereof, or of any instrument or agreement setting forth the terms and
conditions pertaining to any of the foregoing. The Secured Creditors may at
their discretion at any time grant credit to the Borrower without notice to
the other Pledgors in such amounts and on such terms as the Secured Creditors
may elect without in any manner impairing the lien and security hereby created
and provided for. In order to realize hereon and to exercise the rights
granted the Secured Creditors hereunder and under applicable law, there shall
be no obligation on the part of any Secured Creditor or any other holder of any
of the Obligations at any time to first resort for payment to the Borrower or
any other Pledgor or to any guaranty of the Obligations or any portion thereof
or to resort to any other collateral security, property, liens or any other
rights or remedies whatsoever, and the Secured Creditors shall have the right
to enforce this Agreement as against any Pledgor or any of its Collateral
irrespective of whether or not other proceedings or steps seeking resort to or
realization upon or from any of the foregoing are pending.
Section 13. The Agent. In acting under or by virtue of this Agreement,
the Agent shall be entitled to all the rights, authority, privileges, and
immunities provided in the Credit Agreement, all of which provisions of said
Credit Agreement (including, without limitation, Section 10 thereof) are
incorporated by reference herein with the same force and effect as if set forth
herein in their entirety. The Agent hereby disclaims any representation or
warranty to the other Secured Creditors or any other holders of the Obligations
concerning the perfection of the liens and security interests granted hereunder
or in the value of the Collateral.
Section 14. Miscellaneous. (a) This Agreement cannot be changed or
terminated orally. This Agreement shall create a continuing lien on and
security interest in the Collateral and shall be binding upon each Pledgor, its
successors and permitted assigns, and shall inure, together with the rights and
remedies of the Secured Creditors hereunder, to the benefit of the Secured
Creditors, and their successors and assigns; provided, however, that no Pledgor
may assign its rights or delegate its duties hereunder without the Agent's
prior written consent. Without limiting the generality of the foregoing, and
subject to the provisions of the Credit Agreement, any Lender may assign or
otherwise transfer any indebtedness held by it secured by this Agreement to any
other person, and such other person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or otherwise.
(b) All communications provided for herein shall be in writing, except as
otherwise specifically provided for hereinabove, and shall be deemed to have
been given or made, if to any Pledgor when given to the Borrower in accordance
with Section 11.7 of the Credit Agreement, or if to any Secured Creditor, when
given to such party in accordance with Section 11.7 of the Credit Agreement.
(c) No Lender shall have the right to institute any suit, action or
proceeding in equity or at law for the foreclosure or other realization upon
any Collateral subject to this Agreement or for the execution of any trust or
power hereof or for the appointment of a receiver, or for the enforcement of
any other remedy under or upon this Agreement; it being understood and
intended that no one or more of the Lenders shall have any right in any manner
whatsoever to affect, disturb or prejudice the lien and security interest of
this Agreement by its or their action or to enforce any right hereunder, and
that all proceedings at law or in equity shall be instituted, had and
maintained by the Agent in the manner herein provided for the benefit of the
Secured Creditors.
(d) In the event that any provision hereof shall be deemed to be invalid
or unenforceable by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Agreement shall be construed
as not containing such provision, but only as to such jurisdictions where such
law or interpretation is operative, and the invalidity or unenforceability of
such provision shall not affect the validity of any remaining provision hereof,
and any and all other provisions hereof which are otherwise lawful and valid
shall remain in full force and effect. Without limiting the generality of the
foregoing, in the event that this Agreement shall be deemed to be invalid or
otherwise unenforceable with respect to any Pledgor, such invalidity or
unenforceability shall not affect the validity of this Agreement with respect
to the other Pledgors.
(e) In the event the Secured Creditors shall at any time in their
discretion permit a substitution of Pledgors hereunder or a party shall wish to
become a Pledgor hereunder, such substituted or additional Pledgor shall, upon
executing an agreement in the form attached hereto as Schedule F, become a
party hereto and be bound by all the terms and conditions hereof to the same
extent as though such Pledgor had originally executed this Agreement and, in
the case of a substitution, in lieu of the Pledgor being replaced. Any such
agreement shall contain information as to such Pledgor necessary to update
Schedules A, B and C with respect to it. No such substitution shall be
effective absent the written consent of Agent nor shall it in any manner
affect the obligations of the other Pledgors hereunder.
(f) This Agreement shall be deemed to have been made in the State of
Illinois and shall be governed by, and construed in accordance with, the laws
of the State of Illinois. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning of any
provision hereof.
(g) Each Pledgor hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Northern District of Illinois and of any
Illinois state court sitting in Cook County, Illinois for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. Each Pledgor irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.
(h) This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterpart signature pages, each
constituting an original, but all together one and the same instrument.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, each Pledgor has caused this Agreement to be duly
executed and delivered as of the date first above written.
"PLEDGORS"
MISSISSIPPI CHEMICAL CORPORATION
By______________________________________________
Name____________________________________________
Title___________________________________________
Address:
3622 Highway 49 East (39194)
P.O. Box 388
Yazoo City, MS 39194-0388
Attention: _________________
Telephone: _________________
Telecopy: _________________
MISSISSIPPI NITROGEN, INC.
By______________________________________________
Name____________________________________________
Title___________________________________________
Address:
Highway 49 East (39194)
P.O. Box 1851
Yazoo City, MS 39194-1851
Attention: _________________
Telephone: _________________
Telecopy: _________________
MISSISSIPPI CHEMICAL MANAGEMENT COMPANY
By______________________________________________
Name____________________________________________
Title___________________________________________
Address:
Highway 49 East (39194)
P.O. Box 1534
Yazoo City, MS 39194-1534
Attention: _________________
Telephone: _________________
Telecopy: _________________
Acknowledged and agreed to in Chicago, Illinois as of the date first above
written.
HARRIS TRUST AND SAVINGS BANK, as Agent
By_____________________________________________
Name___________________________________________
Title__________________________________________
Address:
111 West Monroe Street
Chicago, IL 60603
Attention: Agribusiness Division
Telephone: ____________________
Telecopy: (312) 765-8095
<PAGE>
<TABLE>
SCHEDULE A TO PLEDGE AGREEMENT
THE PLEDGED SECURITIES
PERCENTAGE
JURISDICTION OF ISSUER'S
NAME OF NAME OF OF NO. OF CERTIFICATE OUTSTANDING
PLEDGOR ISSUER INCORPORATION SHARES NO. STOCK
<S> <C> <C> <C> <C> <C>
Mississippi Mississippi
Chemical Phosphates
Corporation Corporation Delaware 1,000 1 100
Mississippi
Chemical Mississippi Potash,
Corporation Inc. Mississippi 1,000 2 100
Mississippi
Chemical Mississippi
Corporation Nitrogen, Inc. Delaware 1,000 002 100
Mississippi
Chemical MCC Investments,
Corporation Inc. Delaware 1,000 001 100
Mississippi
Mississippi Chemical
Chemical Management
Corporation Company Delaware 1,000 001 100
Mississippi
Chemical NSI Land
Corporation Corporation Delaware 1,000 3 100
Mississippi
Potash, Inc. Eddy Potash, Inc. Mississippi 1,000 002 100
Mississippi TNI Barge, Inc. Mississippi 1,000 002 100
Nitrogen, Inc.
</TABLE>
<TABLE>
SCHEDULE B TO PLEDGE AGREEMENT
PARTNERSHIP INTEREST COLLATERAL
NAME OF TYPE OF JURISDICTION OF PERCENTAGE OF
NAME OF PLEDGOR PARTNERSHIP ORGANIZATION ORGANIZATION OWNERSHIP
<S> <C> <C> <C> <C>
Mississippi
Nitrogen, Inc. Mississippi
(Limited Chemical Company, Limited
Partner) L.P. Partnership Delaware 99%
Mississippi
Chemical
Management Mississippi
Company (General Chemical Company, Limited
Partner) L.P. Partnership Delaware 1%
</TABLE>
<TABLE>
SCHEDULE C TO PLEDGE AGREEMENT
LLC COLLATERAL
PERCENTAGE OF
JURISDICTION OF EQUITY INTEREST
NAME OF PLEDGOR NAME OF LLC ORGANIZATION OWNED BY PLEDGOR
<S> <C> <C> <C>
Mississippi MissChem Nitrogen,
Nitrogen, Inc. L.L.C. Delaware 100
Mississippi
Nitrogen, Inc. Triad Nitrogen, L.L.C. Delaware 100
</TABLE>
<PAGE>
SCHEDULE D TO PLEDGE AGREEMENT
ACKNOWLEDGMENT TO COLLATERAL ASSIGNMENT
____________, _____
_________________________________
_________________________________
_________________________________
_________________________________
Attention:_________________________
Ladies and Gentlemen:
_________________________ ("Pledgor") is a party to that certain Pledge
Agreement dated as of February 24, 2000 (the "Pledge Agreement") in favor of
Harris Trust and Savings Bank (the "Agent"), a copy of which you have received.
Pursuant to the Pledge Agreement, Pledgor assigned its equity interests in
___________________ (the "Partnership/LLC") as collateral security for, among
other things, certain of the indebtedness, obligations and liabilities of
Mississippi Chemical Corporation (the "Borrower") now or from time to time
owing pursuant to that certain Credit Agreement dated as of November 25, 1997
(such Credit Agreement as the same may be amended, modified or restated from
time to time being hereinafter referred to as the "Credit Agreement") among the
Borrower, the Borrower's subsidiaries party thereto as guarantors, the Agent,
and various other lenders party thereto.
We ask you, by accepting this letter below on behalf of the
Partnership/LLC and as its general partner/manager, to confirm the following:
1. Pledgor is a partner/member in the Partnership/LLC.
2. You consent to the collateral assignment of Pledgor's
interest in the Partnership/LLC to the Agent, notwithstanding anything to
the contrary contained in the Partnership Agreement/Limited Liability
Company Certificate of Formation and Operating Agreement. This letter
will serve to evidence the consent to this collateral assignment from the
Partnership/LLC and its general partner/manager.
3. All parties required by the terms of the Partnership
Agreement/Limited Liability Company Certificate of Formation and Operating
Agreement to approve the collateral assignment made by the Pledge
Agreement have done so, and the interest of the Agent by virtue of that
assignment has been reflected on the books and records of the
Partnership/LLC.
4. The Partnership/LLC has been formed under the Partnership
Agreement dated as of ______________, _____/the Certificate of Formation
dated ______________, ______, and the Operating Agreement dated as of
________________, _____ (the "Organizational Documents"), and the
Organizational Documents have not subsequently been modified or amended
and continue in full force and effect. The Organizational Documents shall
not be amended without the consent of the Agent. The Agent agrees with
the Partnership/LLC that the Agent will not unreasonably withhold its
consent to modifications or amendments to the Organizational Documents
which do not adversely affect the interests of the Secured Creditors
identified and defined in the Pledge Agreement.
5. All payments and distributions due and to become due to
Pledgor pursuant to the Organizational Documents shall continue to be paid
directly to such Pledgor, unless and until the Agent notifies the
Partnership/LLC in writing to do otherwise. If the Agent so notifies the
Partnership/LLC, the Partnership/LLC will immediately cease making such
payments and distributions to the Pledgor and will as soon as possible,
but in any event within 5 days after receiving such notice, remit all such
payments and distributions directly to the Agent at 111 West Monroe
Street, Chicago, Illinois 60603.
6. By virtue of the Pledge Agreement, the Agent has the right,
upon the occurrence and during the continuation of any Event of Default
under the Credit Agreement, at its option to exercise Pledgor's right
(if any) to withdraw all or any part of such Pledgor's interest in the
Partnership/LLC by so notifying the Partnership/LLC in writing no less
than 10 days prior to the proposed withdrawal date. All payments and
distributions due or to become due under the Organizational Documents to
the Pledgor as a result of such withdrawal shall be remitted directly to
the Agent as stated above. If given at all, the notice provided pursuant
to this paragraph may (but need not) be given concurrently with any notice
provided pursuant to the immediately preceding paragraph.
7. The Pledgor agrees that any such payment to the Agent shall
be a good receipt and acquittance as against it -- that is to say, the
Partnership/LLC should make the payment directly to the Agent and in so
doing, the Partnership/LLC discharges any liability to such Pledgor for
that payment.
8. The terms of the Pledge Agreement prohibit Pledgor from
making any transfer of its interest in the Partnership/LLC without the
Agent's prior written consent. You agree not to honor any such transfer
of Pledgor's interest without the Agent's prior written consent.
The agreements in this letter shall be modified only in a writing signed
by the Agent, the Pledgor and the Partnership/LLC. We acknowledge that the
Partnership/LLC shall be entitled to assume that the Pledge Agreement continues
in full force and effect unless and until the Partnership/LLC receives actual
written notice of a termination of same from the Agent.
Very truly yours,
[PLEDGOR]
By______________________________________________
Its_____________________________________________
HARRIS TRUST AND SAVINGS BANK, as Agent
By______________________________________________
Its_____________________________________________
The undersigned, both as the general partner/manager of the
Partnership/LLC and on behalf of the Partnership/LLC, join in this letter to
evidence their acknowledgment and agreement to the same.
[PARTNERSHIP/LLC]
By______________________________________________
Its_____________________________________________
[GENERAL PARTNER/MANAGER OF PARTNERSHIP]
By______________________________________________
Its_____________________________________________
<PAGE>
SCHEDULE E TO PLEDGE AGREEMENT
AMENDMENT TO PLEDGE AGREEMENT
Reference is hereby made to that certain Pledge Agreement dated as of
February 24, 2000 (as the same may be amended, the "Pledge Agreement"), from
Mississippi Chemical Corporation and the other Pledgors which are signatories
thereto to and Harris Trust and Savings Bank, as Agent. Capitalized terms not
otherwise defined herein shall have the meaning set forth in the Pledge
Agreement.
Subsequent to the Pledgors' delivery of the Pledge Agreement, certain
shares of stock, partnership interests or limited liability company interests
have been added as Collateral under the Pledge Agreement. As a result of such
addition, Schedule A of the Pledge Agreement does not accurately describe the
shares of capital stock and/or Schedule B does not accurately describe the
partnership interests and/or Schedule C does not accurately describe the
limited liability company interests, currently held by the Agent as collateral
under the Pledge Agreement.
The Pledgors now desire to amend Schedule A and/or Schedule B and/or
Schedule C to the Pledge Agreement to reflect such addition, and this
instrument shall constitute an agreement between the Pledgors and the Agent
amending the Pledge Agreement in the respects, but only in the respects,
hereinafter set forth:
1. If an Annex A is attached hereto, Schedule A of the Pledge
Agreement shall be and hereby is amended and as so amended shall be
restated in its entirety to read as Annex A attached hereto.
2. If an Annex B is attached hereto, Schedule B of the Pledge
Agreement shall be and hereby is amended and as so amended shall be
restated in its entirety to read as Annex B attached hereto.
3. If an Annex C is attached hereto, Schedule C of the Pledge
Agreement shall be and hereby is amended and as so amended shall be
restated in its entirety to read as Annex C attached hereto.
4. As collateral security for the Obligations, each Pledgor
hereby grants to the Agent a continuing lien on and security interest
in, and acknowledges and agrees that the Agent has and shall continue
to have a continuing lien on and security interest in, all the shares of
capital stock of each issuer listed and described on Annex A attached
hereto (if attached), all of the partnership interests listed and
described on Annex B attached hereto (if attached), all of the limited
liability company interests listed and described on Annex C attached
hereto (if attached) and all the other properties, rights, interests and
privileges comprising the Collateral (as such term is defined in the
Pledge Agreement after giving effect to this Amendment), to the same
extent and with the same force and effect as if (i) the shares of stock
described on Annex A had originally been included on Schedule A to the
Pledge Agreement, (ii) the partnership interests described on Annex B had
been originally included on Schedule B to the Pledge Agreement and
(iii) the limited liability company interests described on Annex C had
been originally included on Schedule C to the Pledge Agreement. The
foregoing granting clause is in addition to and supplemental of and not
in substitution for the granting clause contained in the Pledge Agreement.
Neither the Pledgors nor the Agent intends by this Amendment to in any
way impair or otherwise affect the lien of the Pledge Agreement on such
of the Collateral which was subject to the Pledge Agreement prior to
giving effect to this Amendment.
5. Each Pledgor hereby repeats and reaffirms all of its
covenants, agreements, representations and warranties contained in the
Pledge Agreement, each and all of which shall be applicable to all of
the properties, rights, interests and privileges subject to the lien of
the Pledge Agreement after giving effect to this Amendment. Each Pledgor
hereby certifies that no Event of Default or event which, with notice or
lapse of time or both, would constitute an Event of Default exists under
the Pledge Agreement after giving effect to this Amendment.
6. No reference to this Amendment need be made in any note,
instrument or other document at any time referring to the Pledge
Agreement, any reference in any of such to the Pledge Agreement to be
deemed to reference to the Pledge Agreement as modified hereby.
7. Except as specifically modified hereby, all the terms and
conditions of the Pledge Agreement shall stand and remain unchanged and
in full force and effect.
PLEDGOR(S):
[NAME OF PLEDGORS]
By______________________________________________
Name____________________________________________
Title___________________________________________
Acknowledged and agreed to as of the date first above written.
HARRIS TRUST AND SAVINGS BANK, as Agent
By______________________________________________
Name____________________________________________
Title___________________________________________
<PAGE>
ANNEX A
TO AMENDMENT TO PLEDGE AGREEMENT
THE PLEDGED SECURITIES
NAME OF NAME OF JURISDICTION OF NO. OF CERTIFICATE PERCENTAGE OF
PLEDGOR ISSUER INCORPORATION SHARES NO. ISSUER'S STOCK
<PAGE>
ANNEX B
TO AMENDMENT TO PLEDGE AGREEMENT
PARTNERSHIP INTERESTS
NAME OF NAME OF TYPE OF JURISDICTION OF PERCENTAGE OF
PLEDGOR PARTNERSHIP ORGANIZATION ORGANIZATION OWNERSHIP
<PAGE>
ANNEX C
TO AMENDMENT TO PLEDGE AGREEMENT
PERCENTAGE OF
NAME OF JURISDICTION OF EQUITY INTEREST
PLEDGOR NAME OF LLC ORGANIZATION OWNED BY PLEDGOR
<PAGE>
SCHEDULE F TO PLEDGE AGREEMENT
ASSUMPTION AND SUPPLEMENTAL PLEDGE AGREEMENT
THIS AGREEMENT dated as of this _____ day of ______________, from [NEW
PLEDGOR], a __________ CORPORATION/PARTNERSHIP/LIMITED LIABILITY COMPANY (the
"New Pledgor"), to Harris Trust and Savings Bank ("HTSB") as agent for the
Secured Creditors (defined in the Pledge Agreement hereinafter identified and
defined) (HTSB acting as such agent and any successor or successors to HTSB in
such capacity being hereinafter referred to as the "Agent");
P R E L I M I N A R Y S T A T E M E N T S
A. Mississippi Chemical Corporation (the "Borrower") and certain other
Pledgors have executed and delivered to the Agent that certain Pledge Agreement
dated as of February 24, 2000 (such Pledge Agreement, as the same may from time
to time be modified or amended, including supplements thereto which add
additional parties as Pledgors thereunder, being hereinafter referred to as the
"Pledge Agreement") pursuant to which such parties (the "Existing Pledgors")
have granted to the Agent for the benefit of the Secured Creditors a lien on
and security interest in such Existing Pledgors' Collateral (as such term is
defined in the Pledge Agreement) to secure the Obligations (as such term is
defined in the Pledge Agreement).
B. Each Pledgor will benefit, directly and indirectly, from credit and
other financial accommodations extended by the Secured Creditors to the
Borrower.
NOW, THEREFORE, FOR VALUE RECEIVED, and in consideration of advances made
or to be made, or credit accommodations given or to be given, to the Borrower
by the Secured Creditors from time to time, the New Pledgor hereby agrees as
follows:
1. The New Pledgor acknowledges and agrees that it shall become a
"Pledgor" party to the Pledge Agreement effective upon the date the New
Pledgor's execution of this Agreement and the delivery of this Agreement to the
Agent, and that upon such execution and delivery, all references in the Pledge
Agreement to the terms "Pledgor" or "Pledgors" shall be deemed to include the
New Pledgor. Without limiting the generality of the foregoing, the New Pledgor
hereby repeats and reaffirms all grants (including the grant of a lien and
security interest), covenants, agreements, representations and warranties
contained in the Pledge Agreement as amended hereby, each and all of which are
and shall remain applicable to the Collateral from time to time owned by the
New Pledgor or in which the New Pledgor from time to time has any rights.
Without limiting the foregoing, in order to secure payment of the Obligations,
whether now existing or hereafter arising, the New Pledgor does hereby grant
to the Agent for the benefit of the Secured Creditors, and hereby agrees that
the Agent has and shall continue to have for the benefit of the Secured
Creditors a continuing security interest in, among other things, all of the
New Pledgor's Collateral (as such term is defined in the Pledge Agreement)
described in Section 2 of the Pledge Agreement, each and all of such granting
clauses being incorporated herein by reference with the same force and effect
as if set forth in their entirety except that all references in such clauses
to the Existing Pledgor or any of them shall be deemed to include references
to the New Pledgor. Nothing contained herein shall in any manner impair the
priority of the liens and security interests heretofore granted in favor of
the Agent under the Pledge Agreement.
2. The following information shall be added to Schedules A, B and/or C
to the Pledge Agreement, as applicable:
<TABLE>
THE PLEDGED SECURITIES
<S> <C> <C> <C> <C> <C> <C>
NAME AND NAME OF JURISDICTION OF NO. OF CLASS CERTIFICATE PERCENTAGE
LOCATION OF ISSUER INCORPORATION SHARES NO. OF ISSUER'S
PLEDGOR STOCK
OR
SCHEDULE B
PARTNERSHIP INTEREST COLLATERAL
<S> <C> <C> <C> <C>
NAME AND LOCATION OF NAME OF TYPE OF JURISDICTION OF PERCENT OF
PLEDGOR PARTNERSHIP ORGANIZATION ORGANIZATION OWNERSHIP
OR
SCHEDULE C
LLC COLLATERAL
<S> <C> <C> <C>
PERCENTAGE OF
NAME AND LOCATION OF JURISDICTION OF EQUITY INTEREST
PLEDGOR NAME OF LLC ORGANIZATION OWNED BY PLEDGOR
</TABLE>
3. The New Pledgor hereby acknowledges and agrees that the Obligations
are secured by all of the Collateral according to, and otherwise on and subject
to, the terms and conditions of the Pledge Agreement to the same extent and
with the same force and effect as if the New Pledgor had originally been one of
the Existing Pledgors under the Pledge Agreement and had originally executed
the same as such an Existing Pledgor.
4. All capitalized terms used in this Agreement without definition shall
have the same meaning herein as such terms have in the Pledge Agreement, except
that any reference to the term "Pledgor" or "Pledgors" and any provision of the
Pledge Agreement providing meaning to such term shall be deemed a reference to
the Existing Pledgors and the New Pledgor. Except as specifically modified
hereby, all of the terms and conditions of the Pledge Agreement shall stand and
remain unchanged and in full force and effect.
5. The New Pledgor agrees to execute and deliver such further
instruments and documents and do such further acts and things as the Agent may
deem necessary or proper to carry out more effectively the purposes of this
Agreement.
6. No reference to this Agreement need be made in the Pledge Agreement
or in any other document or instrument making reference to the Pledge
Agreement, any reference to the Pledge Agreement in any of such to be deemed a
reference to the Pledge Agreement as modified hereby.
7. This Agreement shall be governed by and construed in accordance with
the State of Illinois (without regard to principles of conflicts of law).
[NEW PLEDGOR]
By______________________________________________
Name____________________________________________
Title
Acknowledged and agreed to as of the date first above written.
HARRIS TRUST AND SAVINGS BANK, as Agent
By______________________________________________
Name____________________________________________
Title___________________________________________
<PAGE>
EXHIBIT W
(NON-PRINCIPAL PROPERTIES)
DEED OF TRUST AND SECURITY AGREEMENT WITH
ASSIGNMENT OF RENTS
This Deed of Trust and Security Agreement with Assignment of Rents (the
"Deed of Trust") dated ___________________, 2000 from ___________, a _________
with its principal place of business and mailing address at __________________
(hereinafter referred to as "Grantor") to ___________________, a _____________
with its principal place of business and mailing address at
____________________, as Trustee (the "Trustee") and in trust for the benefit
of Harris Trust and Savings Bank, an Illinois banking corporation with its
principal place of business at 111 West Monroe Street, Chicago, Illinois 60690,
(hereinafter referred to as "Harris") for itself and as agent hereunder for the
Lenders hereinafter defined (Harris acting as such agent and any successor or
successors to Harris in such capacity being hereinafter referred to as
"Beneficiary");
W I T N E S S E T H T H A T:
WHEREAS, Mississippi Chemical Corporation, a Mississippi corporation (the
"Borrower") has entered into with Harris (individually and as administrative
agent for itself and the lenders who may from time to time be parties to the
Credit Agreement described below (individually a "Lender" and collectively the
"Lenders")) that certain Credit Agreement dated as of November 25, 1997, as the
same has been and hereafter may from time to time be amended (as so amended,
the "Credit Agreement") pursuant to which the Lenders commit, subject to
certain terms and conditions, to make a revolving credit facility (the
"Revolving Credit") in the aggregate principal amount of $200,000,000 available
to the Borrower; and
WHEREAS, Harris may, pursuant to the Credit Agreement and as part of the
Revolving Credit referred to above, issue letters of credit (individually an
"L/C" and collectively the "L/Cs") for the account of the Borrower in an
aggregate face amount not to exceed $30,000,000 and with expiry dates of not
more than one year from the date of issuance thereof, but in no event later
than November 25, 2002, which L/Cs are to be issued upon and subject to the
terms of separate applications and agreements for L/Cs to be executed by the
Grantor (individually an "Application" and collectively the "Applications");
and
WHEREAS, pursuant to the Credit Agreement Harris commits, subject to
certain terms and conditions and as part of the Revolving Credit referred to
above, to make swingline loans (the "Swingline Loans") to the Borrower in an
aggregate principal amount outstanding at any time not to exceed $25,000,000;
and
WHEREAS, pursuant to the Credit Agreement the Lenders may, but are not
obligated to, make competitive bid loans ("Bid Loans" and, together with all
loans made under the Revolving Credit and all Swingline Loans, individually a
"Loan" and collectively the "Loans") to the Borrower in an aggregate principal
amount outstanding at any time which, together with the aggregate principal
amount of all other Loans then outstanding shall not exceed $200,000,000; and
WHEREAS, all Loans made to the Borrower under the Credit Agreement are to
be evidenced by Revolving Credit Notes of the Borrower, aggregating
$200,000,000, payable to the order of the respective Lender named thereon and
maturing in no event later than November 25, 2002 and bearing interest thereon
at the rates and payable at the times provided in the Credit Agreement (such
promissory notes and any and all promissory notes issued in renewal thereof or
in substitution or replacement therefor being hereinafter referred to
collectively as the "Notes" and individually as a "Note"); and
WHEREAS, Grantor, _________ and ________ (individually a "Guarantor" and
collectively the "Guarantors") have executed and delivered to the Lenders a
Guaranty Agreement dated July 1, 1999 (such Guaranty Agreement, as the same may
from time to time be amended, the "Guaranty"), pursuant to which the Guarantors
guaranty the payment when due of all of the Borrower's indebtedness,
obligations and liabilities to the Lenders under the Credit Agreement, the
Notes and the Applications; and
WHEREAS, all Loans under the Credit Agreement are classified as either A
Loans or B Loans; and
WHEREAS, the aggregate principal amount of the B Loans outstanding under
the Credit Agreement may not exceed an amount equal to 15% of the Borrower's
Consolidated Net Tangible Assets, which is $____________ on ____________; and
WHEREAS, all Loans that are not B Loans under the Credit Agreement are
classified as A Loans; and
WHEREAS, the Borrower owns, directly or indirectly, equity interests in
the Grantor and provides Grantor with financial, management, administrative,
technical support and other services pursuant to a management services
agreement which enables Grantor to conduct its business in an orderly and
efficient manner in the ordinary course; and
WHEREAS, Grantor will benefit, directly or indirectly, from credit and
other financial accommodations extended by the Lenders to the Borrower; and
NOW, THEREFORE, to secure (i) the payment of the principal of and interest
on the A Loans as and when the same become due and payable (whether by lapse of
time, acceleration or otherwise), (ii) the payment of all sums owing in
connection with the L/Cs (collectively, the "Reimbursement Obligations") as and
when the same become due and payable, (iii) the obligation of the Borrower to
pay Beneficiary and the Lenders certain fees, costs, expenses, indemnities and
other amounts pursuant to the Credit Agreement and the Applications, (iv) the
payment and performance by the Guarantors of all of their indebtedness,
obligations and liabilities under the Guaranty except any such indebtedness,
obligations and liabilities relating to the principal of or interest on the B
Loans, (v) the payment of all other indebtedness, obligations and liabilities
which this Deed of Trust secures pursuant to any of its terms and (vi) the
observance and performance of all covenants and agreements contained herein or
in the Notes, the Credit Agreement, the Applications or in any other instrument
or document at any time evidencing or securing any of the foregoing or setting
forth terms and conditions applicable thereto, except any of the foregoing
relating to the principal of and interest on the B Loans (all of such
indebtedness, obligations and liabilities being hereinafter collectively
referred to as the "indebtedness hereby secured"), Grantor does hereby grant,
bargain, sell, convey, mortgage, warrant, assign, and pledge unto Trustee, its
successors and assigns, in trust, with power of sale as hereinafter set forth,
all of Grantor's right, title and interest in and to the properties, rights,
interests and privileges described in Granting Clauses I, II, III, IV, V, VI
and VII below, all of the same being collectively referred to herein as the
"Mortgaged Premises":
GRANTING CLAUSE I
That certain real estate lying and being in ____________, County of
____________ and State of Mississippi more particularly described in Schedule I
attached hereto and made a part hereof.
GRANTING CLAUSE II
All buildings and improvements of every kind and description heretofore or
hereafter erected or placed on the property described in Granting Clause I and
all materials intended for construction, reconstruction, alteration and repairs
of the buildings and improvements now or hereafter erected thereon, all of
which materials shall be deemed to be included within the premises immediately
upon the delivery thereof to the said real estate, and all fixtures of every
kind and nature whatsoever now or hereafter attached to or contained in or used
or useful in connection with said real estate and the buildings and
improvements now or hereafter located thereon and the operation, maintenance
and protection thereof, including but not limited to all machinery, motors,
fittings, radiators, awnings, shades, screens, all gas, coal, steam, electric,
oil and other heating, cooking, power and lighting apparatus and fixtures, all
fire prevention and extinguishing equipment and apparatus, all cooling and
ventilating apparatus and systems, all plumbing, incinerating, and sprinkler
equipment and fixtures, all elevators and escalators, all communication and
electronic monitoring equipment, all window and structural cleaning rigs and
all other machinery and equipment of every nature and fixtures and
appurtenances thereto and all items of furniture, appliances, draperies,
carpets, other furnishings, equipment and personal property used or useful in
the operation, maintenance and protection of the said real estate and the
buildings and improvements now or hereafter located thereon and all renewals or
replacements thereof or articles in substitution therefor, whether or not the
same are or shall be attached to said real estate, buildings or improvements
in any manner, and all proceeds thereof; it being mutually agreed, intended
and declared that all the aforesaid property shall, so far as permitted by law,
be deemed to form a part and parcel of the real estate and for the purpose of
this Deed of Trust to be real estate and covered by this Deed of Trust; and as
to the balance of the property aforesaid, this Deed of Trust is hereby deemed
to be as well a Security Agreement under the provisions of the Uniform
Commercial Code of the State of Illinois for the purpose of creating hereby a
security interest in said property, which is hereby granted by Grantor as
debtor to Beneficiary as secured party, securing the indebtedness hereby
secured. The addresses of Grantor (debtor) and Beneficiary (secured party)
appear at the beginning hereof.
GRANTING CLAUSE III
All right, title and interest of Grantor now owned or hereafter acquired
in and to all and singular the estates, tenements, hereditaments, privileges,
easements, licenses, franchises, appurtenances and royalties, mineral, oil, and
water rights belonging or in any wise appertaining to the property described in
the preceding Granting Clause I and the buildings and improvements now or
hereafter located thereon and the reversions, rents, issues, revenues and
profits thereof, including all interest of Grantor in all rents, issues and
profits of the aforementioned property and all rents, issues, profits,
revenues, royalties, bonuses, rights and benefits due, payable or accruing
(including all deposits of money as advanced rent or for security) under any
and all leases or subleases and renewals thereof of, or under any contracts or
options for the sale of all or any part of, said property (including during
any period allowed by law for the redemption of said property after any
foreclosure or other sale),together with the right, but not the obligation, to
collect, receive and receipt for all such rents and other sums and apply them
to the indebtedness hereby secured and to demand, sue for and recover the same
when due or payable; provided that the assignments made hereby shall not
impair or diminish the obligations of Grantor under the provisions of such
leases or other agreements nor shall such obligations be imposed upon Trustee
or Beneficiary. By acceptance of this Deed of Trust, Trustee agrees, not as
a limitation or condition hereof, but as a personal covenant available only to
Grantor that until an Event of Default shall occur giving Trustee the power of
sale or the right to foreclose this Deed of Trust, Grantor may collect, receive
(but not more than 30 days in advance) and enjoy such rents.
GRANTING CLAUSE IV
All judgments, awards of damages, settlements and other compensation
heretofore or hereafter made resulting from condemnation proceedings or the
taking of the property described in Granting Clause I or any part thereof or
any building or other improvement now or at any time hereafter located thereon
or any easement or other appurtenance thereto under the power of eminent
domain, or any similar power or right (including any award from the United
States Government at any time after the allowance of the claim therefor, the
ascertainment of the amount thereof and the issuance of the warrant for the
payment thereof), whether permanent or temporary, or for any damage (whether
caused by such taking or otherwise) to said property or any part thereof or the
improvements thereon or any part thereof, or to any rights appurtenant thereto,
including severance and consequential damage, and any award for change of grade
of streets (collectively, "Condemnation Awards").
GRANTING CLAUSE V
All property and rights, if any, which are by the express provisions of
this Deed of Trust required to be subjected to the lien hereof and any
additional property and rights that may from time to time hereafter, by
installation or writing of any kind, be subjected to the lien hereof by Grantor
or by anyone in Grantor's behalf.
GRANTING CLAUSE VI
All rights in and to common areas and access roads on adjacent properties
heretofore or hereafter granted to Grantor and any after-acquired title or
reversion in and to the beds of any ways, roads, streets, avenues and alleys
adjoining the property described in Granting Clause I or any part thereof.
GRANTING CLAUSE VII
All proceeds of the conversion, voluntary or involuntary, of any of the
foregoing into cash or other liquidated claims, including, without limitation,
all proceeds and payments of insurance.
TO HAVE AND TO HOLD the Mortgaged Premises and the properties, rights and
privileges hereby granted, bargained, sold, conveyed, mortgaged, warranted,
pledged and assigned, and in which a security interest is granted, or intended
so to be, unto Trustee, its successors and assigns, forever.
IN TRUST NEVERTHELESS, upon the terms and trust herein set forth, for the
equal and proportionate benefit, security and protection of all present and
future holders of the indebtedness hereby secured; provided, however, that this
instrument is upon the express condition that if all of the indebtedness hereby
secured shall have been paid and performed in full (including all sums payable
under or according to the provisions of the Applications), all L/C's issued
pursuant to the Applications shall have expired and any commitment in the
Credit Agreement to advance funds shall have terminated, then this instrument
and the estate and rights hereby granted shall cease, determine and be void
and upon the written request and at the expense of Grantor, the Beneficiary
shall request Trustee to release this Deed of Trust, the Trustee to then
release this Deed of Trust without further inquiry or liability; otherwise
this Deed of Trust is to remain in full force and effect.
This Deed of Trust is given on the express condition that in no event will
this Deed of Trust secure any indebtedness, obligation and liabilities of the
Borrower or the Guarantors relating to the principal of and interest on the B
Loans.
Grantor hereby covenants and agrees with Trustee and Beneficiary as
follows:
1. Payment of the Indebtedness. The indebtedness hereby secured will be
promptly paid as and when the same becomes due.
2. Further Assurances. Grantor will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Deed of Trust and, without
limiting the foregoing, to make subject to the lien hereof any property agreed
to be subjected hereto or covered by the Granting Clauses hereof.
3. Ownership of the Mortgaged Premises. Grantor covenants and warrants
that it is lawfully seized of and has good and marketable fee title to the
Mortgaged Premises free and clear of all liens, charges and encumbrances
whatsoever except encumbrances in the policy of title insurance accepted by the
Beneficiary and those permitted under the Credit Agreement (collectively,
"Permitted Encumbrances") and Grantor has good title, full power and authority
to convey, transfer and mortgage the same to Trustee for the uses and purposes
set forth in this Deed of Trust; and Grantor will warrant and defend the title
to the Mortgaged Premises against all claims and demands whatsoever.
4. Possession. Provided no Event of Default has occurred and is
continuing hereunder, Grantor shall be suffered and permitted to remain in full
possession, enjoyment and control of the Mortgaged Premises, subject always to
the observance and performance of the terms of this Deed of Trust.
5. Payment of Taxes. Grantor shall pay before any penalty attaches, all
general taxes and all special taxes, special assessments, water, drainage and
sewer charges and all other charges of any kind whatsoever, ordinary or
extraordinary, which may be levied, assessed, imposed or charged on or against
the Mortgaged Premises or any part thereof and which, if unpaid, might by law
become a lien or charge upon the Mortgaged Premises or any part thereof, and
shall, upon written request, exhibit to Beneficiary official receipts
evidencing such payments, except that, unless and until foreclosure,
distraint, sale or other similar proceedings shall have been commenced, no such
charge or claim need be paid if being contested (except to the extent any full
or partial payment shall be required by law), after notice to Beneficiary, by
appropriate proceedings which shall operate to prevent the collection thereof
or the sale or forfeiture of the Mortgaged Premises or any part thereof to
satisfy the same, conducted in good faith and with due diligence and if
Grantor shall have furnished such security, if any, as may be required in the
proceedings or requested by Trustee or Beneficiary.
6. Payment of Taxes on Deed of Trust or Interest of Trustee, Beneficiary
or Lender. Grantor agrees that if any tax, assessment or imposition upon this
Deed of Trust or the indebtedness hereby secured, or the Applications arising
by virtue of the fact that this Deed of Trust has been executed and delivered,
or the interest of Trustee or Beneficiary in the Mortgaged Premises or upon
Trustee, Beneficiary or any Lender by reason of or as a holder of any of the
foregoing (excepting therefrom any income tax on interest payments on the
principal portion of the indebtedness hereby secured imposed by the United
States or any state) is levied, assessed or charged, then, unless all such
taxes are paid by Grantor to, for or on behalf of Trustee, Beneficiary or such
Lender, as the case may be, as they become due and payable (which Grantor
agrees to do upon demand of Trustee, Beneficiary or such Lender, to the extent
permitted by law), or Trustee, Beneficiary or such Lender, as the case may be,
is reimbursed for any such sum advanced by Trustee or Beneficiary, all sums
hereby secured shall become immediately due and payable, at the option of
Trustee or Beneficiary upon ninety (90) days' notice to Grantor,
notwithstanding anything contained herein or in any law heretofore or hereafter
enacted, including any provision thereof forbidding Grantor from making any
such payment. Grantor agrees to exhibit to Trustee, Beneficiary or any Lender,
upon request, official receipts showing payment of all taxes and charges which
Grantor is required to pay hereunder.
7. Recordation and Payment of Taxes and Expenses Incident Thereto.
Grantor will cause this Deed of Trust, all deeds of trust supplemental hereto
and any financing statement or other notice of a security interest required by
Trustee or Beneficiary at all times to be kept, recorded and filed at its own
expense in such manner and in such places as may be required by law for the
recording and filing or for the rerecording and refiling of a mortgage,
security interest, assignment or other lien or charge upon the Mortgaged
Premises, or any part thereof, in order fully to preserve and protect the
rights of Trustee and Beneficiary hereunder and, without limiting the
foregoing, Grantor will pay or reimburse Trustee or Beneficiary for the payment
of any and all taxes, fees or other charges incurred in connection with any
such recordation or rerecordation, including any documentary stamp tax or tax
imposed upon the privilege of having this Deed of Trust or any instrument
issued pursuant hereto recorded.
8. Insurance. Grantor will, at its expense, keep all buildings,
improvements, equipment and other property now or hereafter constituting part
of the Mortgaged Premises insured against loss or damage by fire, lightning,
windstorm, explosion, flood, earthquake, mechanical and electrical breakdown,
and such other risks as are usually included under "all risk" policies, or
which are usually insured against by owners of like property. Such coverage
shall be in amounts sufficient to prevent Grantor, Trustee or Beneficiary from
becoming a co-insurer of any loss under applicable policies and such coverage
shall provide that the losses are to be adjusted and paid on the basis of
replacement value without deduction for physical depreciation. Losses shall
be payable to Borrower and Beneficiary, such rights to be evidenced by the
usual standard non-contributory form of mortgage clause to be attached to
each policy. Grantor shall not carry separate insurance concurrent in kind or
form and contributing in the event of loss, with any insurance required hereby.
Grantor shall also obtain and maintain public liability and workers'
compensation insurance (or qualified self-insurance) in each case in form and
content reasonably satisfactory to Beneficiary and in amounts as are
customarily carried by owners of like property. All insurance required hereby
shall be maintained with good and responsible insurance companies reasonably
satisfactory to Beneficiary.
Policies shall be issued such that: (i) no deductible amount shall be in excess
of $3,000,000 unless approved in writing by Beneficiary, (ii) any losses shall
be payable notwithstanding any act or negligence of Grantor, and (iii) no
cancellation or non-renewal thereof shall be effective until at least
thirty (30) days after receipt by Grantor and Beneficiary of written notice
thereof, and shall be reasonably satisfactory to Beneficiary in all other
material respects. Upon the execution of this Deed of Trust and thereafter not
less than fifteen (l5) days prior to the expiration date of any policy delivered
pursuant to this Deed of Trust, Grantor will deliver to Beneficiary certificates
of insurance showing that Grantor has in effect insurance required by this Deed
of Trust. In the event of foreclosure, Grantor authorizes and empowers
Beneficiary to effect insurance upon the Mortgaged Premises in amounts aforesaid
for a period covering the time of redemption from foreclosure sale provided by
law, and if necessary therefor to cancel any or all existing insurance policies
to the extent that they apply to the Mortgaged Premises.
9. Damage to or Destruction of Mortgaged Premises.
(a) Notice. In case of any material damage to or destruction of
the Mortgaged Premises or any part thereof having a replacement cost value in
excess of $1,000,000, Grantor shall promptly give written notice thereof to
Beneficiary, generally describing the nature and extent of such damage or
destruction, except to the extent said Mortgaged Premises (i) prior to its
damage or destruction are uneconomical, obsolete or worn-out or (ii) are not
necessary for or of importance to the proper conduct of Mortgagor's business in
the ordinary course and all other parts of the Mortgaged Premises damaged or
destroyed during the preceding twelve (12) calendar months had a replacement
cost value, prior to its damage or destruction, of less than $1,000,000.
(b) Restoration. In case of any damage to or destruction of the
Mortgaged Premises or any part thereof, Grantor, whether or not the insurance
proceeds, if any, received on account of such damage or destruction shall be
sufficient for the purpose, at Grantor's expense, will promptly commence and
complete (subject to unavoidable delays occasioned by strikes, lockouts, acts
of God, inability to obtain labor or materials, governmental restrictions and
similar causes beyond the reasonable control of Grantor) the restoration,
replacement or rebuilding of the Mortgaged Premises as nearly as possible to
its value, condition and character immediately prior to such damage or
destruction, except to the extent such property is not necessary to the
conduct of the Grantor's business in the ordinary course, or apply such
proceeds to the prepayment of the indebtedness hereby secured.
(c) Adjustment of Loss. Grantor shall have the right to adjust
and compromise any losses under any insurance afforded pursuant hereto, but any
adjustment and/or compromise of losses involving damage or destruction of the
Mortgaged Premises or any part thereof in excess of $1,000,000 shall be subject
to final approval of Beneficiary.
(d) Application of Insurance Proceeds. Net insurance proceeds
received by Beneficiary under the provisions of this Deed of Trust or any
instruments supplemental hereto or thereto or under any policy or policies of
insurance covering the Mortgaged Premises or any part thereof shall first be
applied toward the payment of the amount owing on the indebtedness hereby
secured in such order of application as Beneficiary may elect whether or not
the same may then be due or be otherwise adequately secured; provided, however,
that such proceeds shall be made available for the restoration of the portion
of the Mortgaged Premises damaged or destroyed if written application for such
use is made within thirty (30) days of receipt of such proceeds and no Event
of Default or event which, with the passage of time, giving of notice, or both
would constitute an Event of Default, shall have occurred and be continuing
and, if the replacement cost of the portion of the Mortgaged Premises damaged
or destroyed exceeds $3,000,000, the following conditions are satisfied:
(i) Grantor has in effect business interruption insurance covering the income
to be lost during the restoration period as a result of the damage or
destruction to the Mortgaged Premises (subject to deductibles that do not
impair the Borrower's ability to pay its obligations during the restoration
period) or provides Beneficiary with other evidence satisfactory to it that
Grantor has cash resources sufficient to pay its obligations during the
restoration period; (ii) the effect of the damage to or destruction of the
Mortgaged Premises giving rise to receipt of the insurance proceeds is not to
terminate, or give a lessee the option to terminate, any lease of all or any
portion of the Mortgaged Premises; (iii) if an Event of Default, or event
which, with the lapse of time, the giving of notice, or both, would constitute
an Event of Default, shall occur during restoration Beneficiary may, at its
election, apply any insurance proceeds then remaining in its hands to the
reduction of the indebtedness hereby secured; (iv) Grantor shall have submitted
to Beneficiary plans and specifications for the restoration which shall be
satisfactory to it; and (v) Grantor shall submit to Beneficiary fixed price
contracts with good and responsible contractors and materialmen covering all
work and materials necessary to complete restoration and providing for a
total completion price not in excess of the amount of insurance proceeds
available for restoration, or, if a deficiency shall exist, Grantor shall have
deposited the amount of such deficiency with Beneficiary. Any insurance
proceeds to be released pursuant to the foregoing provisions may at the option
of Beneficiary be disbursed from time to time as restoration progresses to pay
for restoration work completed and in place and such disbursements may at
Beneficiary's option be made directly to Grantor or to or through any
contractor or materialman to whom payment is due or to or through a
construction escrow to be maintained by a title insurer acceptable to
Beneficiary. Beneficiary may impose such further conditions upon the release
of insurance proceeds (including the receipt of title insurance) as are
customarily imposed by prudent construction lenders to insure the completion
of the restoration work free and clear of all liens or claims for lien. All
title insurance charges and other costs and expenses paid to or for the
account of Grantor in connection with the release of such insurance proceeds
shall constitute so much additional indebtedness hereby secured to be payable
upon demand with interest at the rate applicable to the A Loans at the time
such costs or expenses are incurred. Beneficiary may deduct any such costs and
expenses from insurance proceeds at any time standing in its hands. If Grantor
fails to request that insurance proceeds be applied to the restoration of the
improvements or if Grantor makes such a request but fails to complete
restoration within a reasonable time, Beneficiary shall have the right, but not
the duty, to release the proceeds thereof for use in restoring the Mortgaged
Premises or any part thereof for or on behalf of Grantor in lieu of applying
said proceeds to the indebtedness hereby secured and for such purpose may do
all acts necessary to complete such restoration, including advancing additional
funds in a commercially reasonable manner and in good faith, and any additional
funds so advanced shall constitute part of the indebtedness hereby secured and
shall be payable on demand with interest at the Default Rate or such lower rate
of interest as Grantor and all of the Lenders may agree at the time such funds
are advanced.
10. Eminent Domain. Grantor acknowledges that Condemnation Awards have
been assigned to Trustee and Beneficiary, which awards Trustee and Beneficiary
are hereby irrevocably authorized to collect and receive, and to give
appropriate receipts and acquittances therefor, and at Beneficiary's option, to
apply the same toward the payment of the amount owing on account of the
indebtedness hereby secured in such order of application as Beneficiary may
elect and whether or not the same may then be due and payable or otherwise
adequately secured, and Grantor covenants and agrees that Grantor will give
Beneficiary immediate notice of the actual or threatened commencement of any
proceedings under condemnation or eminent domain affecting all or any part of
the Mortgaged Premises including any easement therein or appurtenance thereof
or severance and consequential damage and change in grade of streets, and will
deliver to Beneficiary copies of any and all papers served in connection with
any such proceedings. Grantor further covenants and agrees to make, execute
and deliver to Beneficiary, at any time or times upon request, free, clear and
discharged of any encumbrances of any kind whatsoever, any and all further
assignments and/or instruments deemed necessary by Beneficiary for the purpose
of validly and sufficiently assigning all awards and other compensation
heretofore and hereafter to be made to Grantor for any taking, either permanent
or temporary, under any such proceeding.
11. Construction, Repair, Waste, Etc. Grantor agrees that no building or
other improvement on the Mortgaged Premises and constituting a part thereof and
having a fair market value in excess of $1,000,000 shall be removed or
demolished nor shall any fixtures or appliances on, in or about said buildings
or improvements be severed, removed, sold or mortgaged, without the consent of
Beneficiary and in the event of the demolition or destruction in whole or in
part of any of the fixtures, chattels or articles of personal property covered
hereby, Grantor covenants that the same will be replaced promptly by similar
fixtures, chattels and articles of personal property at least equal in quality
and condition to those replaced, free from any security interest in or
encumbrance thereon or reservation of title thereto; to permit, commit or
suffer no waste, impairment or deterioration of the Mortgaged Premises or any
part thereof; to keep and maintain said Mortgaged Premises and every part
thereof in such condition that is commercially reasonable and in the ordinary
course of business for facilities in Grantor's industry; to comply in all
material respects with all statutes, orders, requirements or decrees relating
to the Mortgaged Premises by any federal, state or municipal authority; to
observe and comply in all material respects with all conditions and
requirements necessary to preserve and extend any and all rights, licenses,
permits (including, but not limited to, zoning variances, special exceptions
and non-conforming uses), privileges, franchises and concessions which are
applicable to the Mortgaged Premises or which have been granted to or
contracted for by Grantor in connection with any existing or presently
contemplated use of the Mortgaged Premises or any part thereof and not to
initiate or acquiesce in any changes to or terminations of any of the foregoing
or of zoning classifications affecting the use to which the Mortgaged Premises
or any part thereof may be put that would materially and adversely affect the
Mortgaged Premises without the prior written consent of Beneficiary.
Notwithstanding the foregoing, nothing contained in this Section 11 shall
prohibit Grantor from making any repairs, improvements or enhancements to any
of the property covered hereby.
12. Liens and Encumbrances. Grantor will not, without the prior written
consent of Beneficiary, directly or indirectly, create or suffer to be created
or to remain and will discharge or promptly cause to be discharged any
mortgage, lien, encumbrance or charge on, pledge of, or conditional sale or
other title retention agreement with respect to, the Mortgaged Premises or any
part thereof, whether superior or subordinate to the lien hereof, except for
this Deed of Trust and the Permitted Encumbrances.
13. Right of Trustee or Beneficiary to Perform Grantor's Covenants, Etc.
If Grantor shall fail to make any payment or perform any act required to be
made or performed hereunder, Trustee or Beneficiary, without waiving or
releasing any obligation or default, may (but shall be under no obligation to)
at any time thereafter make such payment or perform such act for the account
and at the expense of Grantor, and may enter upon the Mortgaged Premises or
any part thereof for such purpose and take all such action thereon as, in the
opinion of Trustee or Beneficiary, may be reasonably necessary or appropriate
therefor. All sums so paid by Trustee or Beneficiary and all costs and
expenses (including without limitation reasonable attorneys' fees and expenses)
so incurred, together with interest thereon from the date of payment or
incurrence at the Default Rate, shall constitute so much additional
indebtedness hereby secured and shall be paid by Grantor to the party who made
such payment on demand. Trustee or Beneficiary in making any payment authorized
under this Section relating to taxes or assessments may do so according to any
bill, statement or estimate procured from the appropriate public office without
inquiry into the accuracy of such bill, statement or estimate or into the
validity of any tax assessment, sale, forfeiture, tax lien or title or claim
thereof. Trustee or Beneficiary, in performing any act hereunder, shall be the
sole judge of whether Grantor is required to perform same under the terms of
this Deed of Trust so long as it does so in good faith.
14. After-Acquired Property. Any and all property hereafter acquired
which is of the kind or nature described in granting clauses II, III, IV, V, VI
or VII shall ipso facto, and without any further conveyance, assignment or act
on the part of Grantor, become and be subject to the lien of this Deed of Trust
as fully and completely as though specifically described herein; but
nevertheless Grantor shall from time to time, if requested by Trustee or
Beneficiary, execute and deliver any and all such further assurances,
conveyances and assignments as Trustee or Beneficiary may reasonably require
for the purpose of expressly and specifically subjecting to the lien of this
Deed of Trust all such property.
15. Inspection by Trustee or Beneficiary. Trustee, Beneficiary and any
Lender shall have the right to inspect the Mortgaged Premises at all reasonable
times, and access thereto shall be permitted for that purpose, provided that
all such inspections shall be made in compliance with applicable health and
safety laws.
16. Subrogation. Grantor acknowledges and agrees that Trustee and
Beneficiary shall be subrogated to any lien discharged out of the proceeds of
any indebtedness hereby secured or out of any advance by Trustee or Beneficiary
hereunder, irrespective of whether or not any such lien may have been released
of record.
17. Events of Default. Any one or more of the following shall constitute
an "Event of Default" hereunder:
(a) the Mortgaged Premises or any part thereof shall be sold,
transferred, or conveyed, whether voluntarily or involuntarily, by operation of
law or otherwise, except for sales permitted by the Credit Agreement or sales
of obsolete, worn out or unusable fixtures or personal property; or
(b) any indebtedness secured by a lien or charge on the Mortgaged
Premises or any part thereof which is or could become prior to the lien hereof
is not paid when due or proceedings are commenced to foreclose or otherwise
realize upon any such lien or charge or to have a receiver appointed for the
property subject thereto or to place the holder of such indebtedness or its
representative in possession thereof; or
(c) any event occurs or condition exists which is specified as
an "Event of Default" under the Credit Agreement; or
(d) the Mortgaged Premises is abandoned (within the meaning of
the laws of the jurisdiction in which the Mortgaged Premises are located).
For the purposes of this Deed of Trust, the Mortgaged Premises shall be
deemed to have been sold, transferred or conveyed in the event that more than
fifty percent of the equity interest in Grantor shall be sold, transferred or
conveyed, whether voluntarily or involuntarily, subsequent to the date hereof
whether in one or a series of related or unrelated transactions.
18. Remedies. When any Event of Default has occurred and is continuing
or (regardless of the pendency of any proceeding which has or might have the
effect of preventing Grantor from complying with the terms of this instrument
and of the adequacy of the security for the A Loans, Reimbursement Obligations
and the other indebtedness hereby secured), and in addition to such other
rights as may be available under applicable law, but subject at all times to
any mandatory legal requirements:
(a) Acceleration. Beneficiary may, by written notice to Grantor,
declare the A Loans, Reimbursement Obligations and all unpaid indebtedness
hereby secured, including any interest then accrued thereon, to be forthwith
due and payable, whereupon the same shall become and be forthwith due and
payable, without other notice or demand of any kind.
(b) Uniform Commercial Code. Trustee shall, with respect to any
part of the Mortgaged Premises constituting property of the type in respect of
which realization on a lien or security interest granted therein is governed by
the Uniform Commercial Code, have all the rights, options and remedies of a
secured party under the Uniform Commercial Code of Illinois, including without
limitation, the right to the possession of any such property, or any part
thereof, and the right to enter without legal process any premises where any
such property may be found. Any requirement of said Uniform Commercial Code
for reasonable notification shall be met by mailing written notice to Grantor
at its address above set forth at least ten (l0) days prior to the sale or
other event for which such notice is required. The costs and expenses of
retaking, selling, and otherwise disposing of said property, including
reasonable attorneys' fees and legal expenses incurred in connection
therewith, shall constitute so much additional indebtedness hereby secured and
shall be payable upon demand with interest at the Default Rate.
(c) Foreclosure. Trustee may proceed to protect and enforce the
rights of Trustee or Beneficiary hereunder (i) by any action at law, suit in
equity or other appropriate proceedings, whether for the specific performance
of any agreement contained herein, or for an injunction against the violation
of any of the terms hereof, or in aid of the exercise of any power granted
hereby or by law, or (ii) by the foreclosure of this Deed of Trust.
(d) Exercise of Power of Sale. After the lapse of such time as
may then be required by law, if any, and notice of default and notice of the
time, place and terms of sale having been given as then required by law,
including without limitation Section 89-1-55 of the Mississippi Code of 1972,
as amended, Trustee, without demand on Grantor, shall sell the Mortgaged
Premises on the date and at the time and place designated in the notice of
sale, either as a whole or in separate parcels, and in such order as
Beneficiary may determine, at public auction to the highest bidder, the
purchase price payable in lawful money of the United States at the time of
sale. The person conducting the sale may, for any cause deemed expedient,
postpone the sale from time to time until it shall be completed and, in every
such case, notice of postponement shall be given by public declaration thereof
by such person at the time and place last appointed for the sale. If the
Mortgaged Premises is located in two or more counties or two or more judicial
districts of the same county, the Trustee may sell the whole in any of the
counties, or in either of the judicial districts of a county in which any part
of the land lies. Trustee shall execute and deliver to the purchaser a
Trustee's Deed conveying the Property so sold, but without any covenant of
warranty, express or implied. The recitals in the Trustee's Deed of any
matters or facts shall be conclusive proof of the truthfulness thereof.
Beneficiary may bid at the sale. Trustee shall apply the proceeds of the
sale as provided in Section 3.6 of the Credit Agreement.
(e) Appointment of Receiver. Trustee or Beneficiary shall, as a
matter of right, without notice and without giving bond to Grantor or anyone
claiming by, under or through it, and without regard to the solvency or
insolvency of Grantor or the then value of the Mortgaged Premises, be entitled
to have a receiver appointed of all or any part of the Mortgaged Premises and
the rents, issues and profits thereof, with such power as the court making such
appointment shall confer, and Grantor hereby consents to the appointment of
such receiver and shall not oppose any such appointment. Any such receiver
may, to the extent permitted under applicable law, without notice, enter upon
and take possession of the Mortgaged Premises or any part thereof by force,
summary proceedings, ejectment or otherwise, and may remove Grantor or other
persons and any and all property therefrom, and may hold, operate and manage
the same and receive all earnings, income, rents, issues and proceeds accruing
with respect thereto or any part thereof, whether during the pendency of any
foreclosure or until any right of redemption shall expire or otherwise.
(f) Taking Possession, Collecting Rents, Etc. Trustee or
Beneficiary or their agent may enter and take possession of the Mortgaged
Premises or any part thereof and manage, operate, insure, repair and improve
the same and take any action which, in Trustee's or Beneficiary's judgment, is
reasonably necessary or proper to conserve the value of the Mortgaged Premises.
Beneficiary may also take possession of, and for these purposes use, any and
all personal property contained in the Mortgaged Premises and used in the
operation, rental or leasing thereof or any part thereof. Trustee or
Beneficiary or their agent shall be entitled to collect and receive all
earnings, revenues, rents, issues and profits of the Mortgaged Premises or any
part thereof (and for such purpose Grantor does hereby irrevocably constitute
and appoint Beneficiary its true and lawful attorney-in-fact for it and in its
name, place and stead to receive, collect and receipt for all of the foregoing,
Grantor irrevocably acknowledging that any payment made to Beneficiary
hereunder shall be a good receipt and acquittance against Grantor to the extent
so made) and to apply same to the reduction of the indebtedness hereby secured.
The right to enter and take possession of the Mortgaged Premises and use any
personal property therein, to manage, operate and conserve the same, and to
collect the rents, issues and profits thereof, shall be in addition to all
other rights or remedies of Trustee or Beneficiary hereunder or afforded by
law, and may be exercised concurrently therewith or independently thereof.
The costs and expenses (including any receiver's fees, counsels' fees, costs
and agent's compensation) incurred pursuant to the powers herein contained
shall be so much additional indebtedness hereby secured which Grantor promises
to pay upon demand together with interest at the Default Rate. Trustee or
Beneficiary shall not be liable to account to Grantor for any action taken
pursuant hereto other than to account for any rents actually received by
Trustee or Beneficiary. Without taking possession of the Mortgaged
Premises, Trustee or Beneficiary may, in the event the Mortgaged Premises
becomes vacant or is abandoned, take such steps as it deems
commercially reasonably appropriate to protect and secure the Mortgaged
Premises (including hiring watchmen therefor) and all costs incurred in so
doing shall constitute so much additional indebtedness hereby secured payable
upon demand with interest thereon at the Default Rate.
19. Waiver of Right to Redeem From Sale - Waiver of Appraisement,
Valuation, Etc. Grantor shall not and will not apply for or avail itself of
any appraisement, valuation, stay, extension or exemption laws, or any
so-called "Moratorium Laws," now existing or hereafter enacted in order to
prevent or hinder the enforcement or foreclosure of this Deed of Trust, but
hereby waives the benefit of such laws. Grantor for itself and all who may
claim through or under it waives any and all right to have the property and
estates comprising the Mortgaged Premises marshalled upon any foreclosure of
the lien hereof and agrees that any court having jurisdiction to foreclose
such lien may order the Mortgaged Premises sold as an entirety. In the event
of any sale made under or by virtue of this Deed of Trust, the whole of the
Mortgaged Premises may be sold in one parcel as an entirety or in separate
lots or parcels at the same or different times, all as the Beneficiary may
determine. Grantor waives the provisions of Section 89-1-55 of the Mississippi
Code of 1972, as amended, and Section 111 of the Constitution of the State of
Mississippi, as far as such provisions restrict the right of Trustee to offer
at sale more than 160 acres at a time. Beneficiary shall have the right to
become the purchaser at any sale made under or by virtue of this Deed of Trust
and Beneficiary so purchasing at any such sale shall have the right to be
credited upon the amount of the bid made therefor by Beneficiary with the
amount payable to Trustee by Grantor out of the net proceeds of such sale.
In the event of any such sale, the A Loans, Reimbursement Obligations and the
other indebtedness hereby secured, if not previously due, shall be and become
immediately due and payable without demand or notice of any kind. Grantor
hereby waives any and all rights of redemption prior to or from sale under
any order or decree of foreclosure pursuant to rights herein granted, on behalf
of Grantor, and each and every person acquiring any interest in, or title to
the Mortgaged Premises described herein subsequent to the date of this Deed of
Trust, and on behalf of all other persons to the extent permitted by
applicable law.
20. Costs and Expenses of Foreclosure. In case of any sale of the
Mortgaged Premises, or any part thereof, pursuant to any judgment or decree of
any court or pursuant to the power of sale herein contained or in connection
with the enforcement of any of the terms of this Deed of Trust or otherwise or
by virtue of this Deed of Trust, there shall be allowed and included as
additional indebtedness to be paid out of the proceeds of such sale, reasonable
Trustee's fees incurred in connection with any exercise of the power of sale
granted hereunder for all services rendered by Trustee, its agents, attorneys
and counsel in and about foreclosure, enforcement or other protection of this
Deed of Trust and all expenditures and expenses which may be paid or incurred
by or on behalf of Trustee and/or Beneficiary and any Lender for attorneys'
fees, appraisers' fees, environmental auditors' fees, outlays for documentary
and expert evidence, stenographic charges, publication costs and costs (which
may be estimated as the items to be expended after such Trustee's sale or the
entry of any foreclosure order or the decree) of procuring all such abstracts
of title, title searches and examination, guarantee policies, and similar data
and assurances with respect to title as Trustee or Beneficiary may deem to be
reasonably necessary either to prosecute any foreclosure action or to evidence
to the bidder at any sale pursuant thereto the true condition of the title to
or the value of the Mortgaged Premises, all of which expenditures shall become
so much additional indebtedness hereby secured which Grantor agrees to pay and
all of such shall be immediately due and payable with interest thereon from the
date of expenditure until paid at the Default Rate.
21. Application of Proceeds. The proceeds of any foreclosure or other
sale of the Mortgaged Premises or of any sale of property pursuant to Section
17(b) hereof shall be distributed as provided in Section 3.6 of the Credit
Agreement.
22. Deficiency Decree. If at any foreclosure proceeding the Mortgaged
Premises shall be sold for a sum less than the total amount of indebtedness for
which judgment is therein given, the judgment creditor shall be entitled to the
entry of a deficiency decree against Grantor and against the property (other
than Principal Properties, as defined in the Credit Agreement) of Grantor for
the amount of such deficiency; and Grantor does hereby irrevocably consent to
the appointment of a receiver for the Mortgaged Premises and the property
(other than Principal Properties) of Grantor and of the rents, issues and
profits thereof after such sale and until such deficiency decree is satisfied
in full.
23. Trustee's, Beneficiary's and Lenders' Remedies Cumulative - No
Waiver. No remedy or right of Trustee, Beneficiary or any Lender shall be
exclusive of but shall be cumulative and in addition to every other remedy or
right now or hereafter existing at law or in equity or by statute or otherwise.
No delay in the exercise or omission to exercise any remedy or right accruing
on any default shall impair any such remedy or right or be construed to be a
waiver of any such default or acquiescence therein, nor shall it affect any
subsequent default of the same or a different nature. Every such remedy or
right may be exercised concurrently or independently, and when and as often
as may be deemed expedient by Trustee and Beneficiary.
24. Trustee and Beneficiary Party to Suits. If Trustee or Beneficiary
shall be made a party to or shall intervene in any action or proceeding
affecting the Mortgaged Premises or the title thereto or the interest of
Trustee and Beneficiary under this Deed of Trust (including probate and
bankruptcy proceedings), or if Trustee and Beneficiary employs an attorney to
collect any or all of the indebtedness hereby secured or to enforce any of the
terms hereof or realize hereupon or to protect the lien hereof, or if Trustee
and Beneficiary shall incur any costs or expenses in preparation for the
commencement of any foreclosure proceedings or for the defense of any
threatened suit or proceeding which might affect the Mortgaged Premises or the
security hereof, whether or not any such foreclosure or other suit or
proceeding shall be actually commenced, then in any such case, Grantor agrees
to pay to Trustee and Beneficiary, immediately and without demand, all
reasonable costs, charges, expenses and attorney's fees incurred by Trustee
and Beneficiary in any such case, and the same shall constitute so much
additional indebtedness hereby secured payable upon demand with interest at
the Default Rate.
25. Modifications Not to Affect Lien. Trustee and Beneficiary, without
notice to anyone, and without regard to the consideration, if any, paid
therefor, or the presence of other liens on the Mortgaged Premises, may in its
discretion release any part of the Mortgaged Premises or any person liable for
any of the indebtedness hereby secured, may extend the time of payment of any
of the indebtedness hereby secured and may grant waivers or other indulgences
with respect hereto and thereto, and may agree with Grantor to modifications
to the terms and conditions contained herein or otherwise applicable to any
of the indebtedness hereby secured (including modifications in the rates of
interest applicable thereto), without in any way affecting or impairing the
liability of any party liable upon any of the indebtedness hereby secured or
the priority of the lien of this Deed of Trust upon all of the Mortgaged
Premises not expressly released, and any party acquiring any direct or
indirect interest in the Mortgaged Premises shall take same subject to all
of the provisions hereof.
26. Notices. Except as otherwise specified herein, all notices hereunder
shall be in writing (including, without limitation, notice by telecopy) and
shall be given to the relevant party, and shall be deemed to have been made
when given to the relevant party, in accordance with Section 11.7 of the Credit
Agreement.
27. Environmental Matters.
(a) Definitions. The following terms when used herein shall have the
following meanings:
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. SectionSection9601 et seq., and any
future amendments.
"Environmental Claim" means any investigation, notice, violation, demand,
allegation, action, suit, injunction, judgment, order, consent decree, penalty,
fine, lien, proceeding or claim (whether administrative, judicial or private in
nature) arising (a) pursuant to, or in connection with an actual or alleged
violation of, any Environmental Law, (b) in connection with any Hazardous
Material, (c) from any abatement, removal, remedial, corrective or response
action in connection with a Hazardous Material, Environmental Law or order of a
governmental authority, or (d) from any actual or alleged damage, injury,
threat or harm to health, safety, natural resources or the environment.
"Environmental Law" means any current or future Legal Requirement
pertaining to (a) the protection of health, safety and the indoor or outdoor
environment, (b) the conservation, management or use of natural resources and
wildlife, (c) the protection or use of surface water or groundwater, (d) the
management, manufacture, possession, presence, use, generation, transportation,
treatment, storage, disposal, Release, threatened Release, abatement, removal,
remediation or handling of, or exposure to, any Hazardous Material, or (e)
pollution (including any Release to air, land, surface water or groundwater),
and any amendment, rule, regulation, order or directive issued thereunder.
"Environmental Reports" means the Phase I Environmental Assessments of
the Mortgaged Premises described in Granting Clause I conducted and delivered
pursuant to the Credit Agreement.
"Hazardous Material" means any substance, chemical, compound, product,
solid, gas, liquid, waste, byproduct, pollutant, contaminant or material which
is hazardous or toxic, and includes, without limitation, (a) asbestos,
polychlorinated biphenyls and petroleum (including crude oil or any fraction
thereof) and (b) any material classified or regulated as "hazardous" or "toxic"
or words of like import pursuant to an Environmental Law.
"Hazardous Material Activity" means any activity, event or occurrence
involving a Hazardous Material, including, without limitation, the manufacture,
possession, presence, use, generation, transportation, treatment, storage,
disposal, Release, threatened Release, abatement, removal, remediation,
handling of or corrective or response action to any Hazardous Material.
"Legal Requirement" means any treaty, convention, statute, law,
regulation, ordinance, license, permit, governmental approval, injunction,
judgment, order, consent decree or other requirement of any governmental
authority, whether federal, state, or local.
"Material Adverse Effect" means any change or effect that individually or
in the aggregate is or is reasonably likely to be materially adverse to (a) the
assets, operations, income, condition (financial or otherwise) or business
prospects of the Grantor and its subsidiaries, taken as a whole, (b) the lien
of any mortgage, deed of trust or other security agreement covering the
Mortgaged Premises or any part thereof, (c) the ability of the Grantor and its
subsidiaries taken as a whole, to perform their obligations under any loan
agreement, promissory note, mortgage, deed of trust, security agreement or any
other instrument or document evidencing or securing any indebtedness,
obligations or liabilities of the Grantor and it subsidiaries taken as a whole,
owing to the Lenders or setting forth terms and conditions applicable thereto
or otherwise relating thereto, or (d) the condition or fair market value of the
Mortgaged Premises.
"RCRA" means the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments
of 1984, 42 U.S.C. SectionSection6901 et seq., and any future amendments.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, migration, dumping, or
disposing into the indoor or outdoor environment, including, without
limitation, the abandonment or discarding of barrels, drums, containers,
tanks or other receptacles containing or previously containing any Hazardous
Material.
(b) Representations and Warranties. Except as set forth in the
Environmental Reports or on Schedule 27(b) attached hereto, the Grantor
represents and warrants that: (i) the Grantor and the Mortgaged Premises
comply in all material respects with all applicable Environmental Laws;
(ii) the Grantor has obtained all governmental approvals required for its
operations and the Mortgaged Premises by any applicable Environmental Law
except for such approvals which if not obtained could not reasonably be
expected to have a Material Adverse Effect; (iii) the Grantor has not, and
has no knowledge of any other person who has, caused any Release, threatened
Release or disposal of any Hazardous Material at, on, about, or off the
Mortgaged Premises that could reasonably be expected to have a Material Adverse
Effect on the Mortgaged Premises and, to the knowledge of the Grantor, the
Mortgaged Premises is not adversely affected by any Release, threatened Release
or disposal of a Hazardous Material originating or emanating from any other
property that has not been properly remediated; (iv) to Grantor's knowledge,
the Mortgaged Premises does not contain and has not contained any:
(1) underground storage tank, (2) amounts of asbestos containing building
material, (3) any landfills or dumps, (4) hazardous waste management facility
as defined pursuant to RCRA or any comparable state law, or (5) site on or
nominated for the National Priority List promulgated pursuant to CERCLA or any
state remedial priority list promulgated or published pursuant to any
comparable state law; (v) except in the ordinary course of business but always
in compliance in all material respects with all applicable laws, rules and
regulations, the Grantor has not used a material quantity of any Hazardous
Material and has conducted no Hazardous Material Activity at the Mortgaged
Premises; (vi) the Grantor has no material liability for response or
corrective action, natural resource damage or other harm pursuant to CERCLA,
RCRA or any comparable state law; (vii) the Grantor is not subject to, has no
notice or knowledge of and is not required to give any notice of any
Environmental Claim involving the Grantor or the Mortgaged Premises, and to
Grantor's knowledge there are no conditions or occurrences at the Mortgaged
Premises which could reasonably be anticipated to form the basis for an
Environmental Claim against the Grantor or the Mortgaged Premises; (viii) the
Mortgaged Premises is not subject to any, and the Grantor has no knowledge of
any imminent, restriction on the ownership, occupancy, use or transferability
of the Mortgaged Premises in connection with any (1) Environmental Law or (2)
Release, threatened Release or disposal of a Hazardous Material; and (ix) to
Grantor's knowledge, there are no conditions or circumstances at the Mortgaged
Premises which pose an unreasonable risk to the environment or the health or
safety of persons.
(c) Covenants. The Grantor shall at all times do the following:
(i) comply in all material respects with, and maintain the Mortgaged Premises
in compliance in all material respects with, all applicable Environmental Laws;
(ii) require that each tenant and subtenant, if any, of the Mortgaged Premises
or any part thereof comply in all material respects with all applicable
Environmental Laws; (iii) obtain and maintain in full force and effect all
governmental approvals required by any applicable Environmental Law for
operations at the Mortgaged Premises except for such approvals which if not
obtained or maintained could not be reasonably expected to have a Material
Adverse Effect; (iv) cure any violation by it or at the Mortgaged Premises of
applicable Environmental Laws; (v) except as permitted by applicable
Environmental Law, not allow the presence or operation at the Mortgaged
Premises of any (1) landfill or dump or (2) hazardous waste management facility
or solid waste disposal facility as defined pursuant to RCRA or any comparable
state law; (vi) not manufacture, use, generate, transport, treat, store,
release, dispose or handle any Hazardous Material at the Mortgaged Premises
except in the ordinary course of its business and in compliance in all
material respects at all times with all applicable laws, rules or regulations;
(vii) within 10 business days notify the Beneficiary in writing of and provide
any requested documents upon learning of any of the following in connection
with the Grantor or the Mortgaged Premises which could reasonably be
anticipated to have a Material Adverse Effect: (1) any liability for response
or corrective action, natural resource damage or other harm pursuant to
CERCLA, RCRA or any comparable state law, (2) any Environmental Claim, (3) any
violation of an Environmental Law or Release, threatened Release or disposal
of a Hazardous Material, (4) any restriction on the ownership, occupancy, use
or transferability arising pursuant to any (x) Release, threatened Release or
disposal of a Hazardous Substance or (y) Environmental Law, or (5) any
environmental, natural resource, health or safety condition; (viii) conduct at
its expense any investigation, study, sampling, testing, abatement, cleanup,
removal, remediation or other response action necessary to remove, remediate,
clean up or abate any Release, threatened Release or disposal of a Hazardous
Material as required by any applicable Environmental Law; (ix) abide by and
observe any restrictions on the use of Mortgaged Premises imposed by any
governmental authority as set forth in a deed or other instrument affecting
the Grantor's interest therein; (x) promptly provide or otherwise make
available to the Beneficiary any requested environmental record concerning
the Mortgaged Premises which the Grantor possesses or can reasonably obtain;
and (xi) perform, satisfy, and implement any operation or maintenance actions
required by any governmental authority or Environmental Law, or included in
any no further action letter or covenant not to sue issued by any governmental
authority under any Environmental Law. Notwithstanding the foregoing, Grantor
shall be permitted to store and use Hazardous Materials on the Mortgaged
Premises in the ordinary course of business and in compliance with all
applicable laws.
28. Liens Absolute, Etc. The Grantor acknowledges and agrees that the
liens and security interests hereby created are absolute and unconditional and
shall not in any manner be affected or impaired by any acts or omissions
whatsoever of the Trustee, Beneficiary or any other holders of any of the
indebtedness hereby secured, and without limiting the generality of the
foregoing, the lien and security hereof shall not be impaired by any acceptance
by the Trustee, Beneficiary or any other holder of any of the indebtedness
hereby secured of any other security for or guarantors upon any of the
indebtedness hereby secured or by any failure, neglect or omission on the part
of the Trustee, Beneficiary or any other holder of any of the indebtedness
hereby secured to realize upon to protect any of the indebtedness hereby
secured or any collateral security therefor. The lien and security hereof
shall not in any manner be impaired or affected by any sale, pledge,
surrender, compromise, settlement, release, renewal, extension, indulgence,
alteration, substitution, exchange, change in, modification or disposition
of any of the indebtedness hereby secured, or of any collateral security
therefor, or of any guaranty thereof, or of any loan agreement executed in
connection therewith. In order to realize hereon and to exercise the rights
granted Trustee and Beneficiary hereby and under applicable law, there shall
be no obligation on the part of Trustee, Beneficiary or any other holder of
any of the indebtedness hereby secured at any time to first resort for payment
to the obligor on any note evidencing any of the indebtedness hereby secured
or to any guaranty of any of the indebtedness hereby secured or any part
thereof or to resort to any other collateral security, property, liens or
any other rights or remedies whatsoever, and Trustee shall have the right to
enforce this instrument irrespective of whether or not other proceedings or
steps are pending seeking resort to or realization upon or from any of the
foregoing.
29. Direct and Primary Security - No Subrogation. The lien and security
herein created and provided for stands as direct and primary security for the
A Loans and the Applications as well as for any of the other indebtedness
hereby secured. No application of any sums received by the Trustee or
Beneficiary in respect of the Mortgaged Premises or any disposition thereof
to the reduction of the indebtedness hereby secured or any part thereof shall
in any manner entitle Grantor to any right, title or interest in or to the
indebtedness hereby secured or any collateral security therefor, whether by
subrogation or otherwise, unless and until all indebtedness hereby secured has
been fully paid and satisfied.
30. Substitute Trustee. Trustee, or any substitute Trustee, may be
removed at any time with or without cause, at the option of Beneficiary, by
written declaration of such removal signed by any officer of Beneficiary and
duly recorded in the same records as this Deed of Trust, without any notice to
or demand upon Trustee or substitute Trustee so removed, or Grantor or any
other person. If at any time Trustee or any substitute Trustee should be so
removed, or should absent himself from ____________, die, or refuse, fail or
be unable to act as such Trustee or substitute Trustee, Beneficiary may appoint
any person as substitute Trustee hereunder, without any formality other than a
written declaration of such appointment executed by Beneficiary and duly
recorded in the same records as this Deed of Trust; and immediately upon such
appointment, the substitute Trustee so appointed shall automatically become
vested with all the estate and title in the Property, and with all of the
rights, powers, privileges, authority, options and discretions, and charged
with all of the duties and liabilities, vested in or imposed upon Trustee by
this Deed of Trust, and any conveyance executed by such substitute Trustee,
including the recitals therein contained, shall have the same effect and
validity as if executed by Trustee.
31. Line of Credit. The Deed of Trust is given to secure, among other
things, a line of credit and shall secure not only presently existing
indebtedness hereby secured outstanding under the Credit Agreement but also
future advances, whether such advances are obligatory or to be made at the
option of Beneficiary, or otherwise, as are made within twenty (20) years from
the date hereof, to the same extent as if such future advances were made on the
date of the execution of this mortgage, although there may be no advance made
at the time of execution of this Deed of Trust and although there may be no
indebtedness hereby secured outstanding at the time any advance is made, but in
no event shall this Deed of Trust secure any principal of or interest on any of
the B Loans. The lien of this Deed of Trust shall be valid as to all
indebtedness hereby secured, including future advances, from the time of its
filing for record in the recorder's or registrar's office of the county in
which the Mortgaged Premises are located. The total amount of indebtedness
hereby secured may increase or decrease from time to time, but the total unpaid
balance of indebtedness hereby secured (including disbursements which
Beneficiary may make under this Deed of Trust, the Credit Agreement, the
Applications or any other documents related thereto) at any one time
outstanding shall not exceed a maximum principal amount of __________________
Dollars ($____________) plus interest thereon and any disbursements made for
payment of taxes, special assessments or insurance on the Mortgaged Premises
and interest on such disbursements, together with any fees, costs or expenses
which may be payable hereunder (all such indebtedness being hereinafter
referred to as the "maximum amount secured hereby"). This Deed of Trust shall
be valid and have priority over all subsequent liens and encumbrances,
including statutory liens, excepting solely taxes and assessments levied on
the Mortgaged Premises, to the extent of the maximum amount secured hereby.
32. Multisite Real Estate Transaction. Grantor acknowledges that this
Deed of Trust is one of several mortgages and other security documents (the
aforesaid being together called the "Other Security Documents") which secure
the indebtedness hereby secured. Grantor agrees that the lien of this Deed of
Trust shall be absolute and unconditional and shall not in any manner be
affected or impaired by any acts or omissions whatsoever of the Trustee or
Beneficiary and, without limiting the generality of the foregoing, the lien
hereof shall not be impaired by any acceptance by the Trustee or Beneficiary
of any security for or guarantors upon any of the indebtedness hereby secured,
or by any failure, neglect or omission on the part of the Trustee or
Beneficiary to realize upon or protect any of the indebtedness hereby secured
or any security therefor including the Other Security Documents. The lien
hereof shall not in any manner be impaired or affected by any release
(except as to the property released), sale, pledge, surrender, compromises,
settlement, renewal, extension, indulgence, alteration, changing, modification
or disposition of any of the indebtedness hereby secured or of any of the
collateral security therefor, including, without limitation, the Other
Security Documents or of any guarantee thereof, and the Trustee or Beneficiary
may at its discretion foreclose, exercise any power of sale, or exercise any
other remedy available to it under any or all of the Other Security Documents
without first exercising or enforcing any of its rights and remedies hereunder.
Such exercise of Trustee's or Beneficiary's rights and remedies under any or
all of the Other Security Documents shall not in any manner impair the
indebtedness hereby secured, except to the extent of payment, or the lien of
this Deed of Trust and any exercise of the rights or remedies of Trustee or
Beneficiary hereunder shall not impair the lien of any of the Other Security
Documents or any of Trustee's or Beneficiary's rights and remedies thereunder.
Grantor specifically consents and agrees that Beneficiary may exercise its
rights and remedies hereunder and under the Other Security Documents
separately or concurrently and in any order that it may deem appropriate.
33. Default Rate. For purposes of this Deed of Trust, the term "Default
Rate" shall mean the rate per annum determined by adding 2% to the rate per
annum announced from time to time by Harris Trust and Savings Bank as its prime
commercial rate, with any change in such rate per annum as so determined by
reason of a change in such prime commercial rate to become effective on the
date of such change in said prime commercial rate.
34. Governing Law. The creation of the Deed of Trust, the perfection of
the lien or security interest in the Mortgaged Premises, and the rights and
remedies of Trustee or Beneficiary with respect to the Mortgaged Premises, as
provided herein and by the laws of the state in which the Mortgaged Premises is
located, shall be governed by and construed in accordance with the internal
laws of the state in which the Mortgaged Premises is located without regard to
principles of conflicts of law. Otherwise, the Credit Agreement, the
Applications, and all other obligations of Grantor (including, but not limited
to, the liability of Grantor for any deficiency following a foreclosure of all
or any part of the Mortgaged Premises) shall be governed by and construed in
accordance with the internal laws of the State of Illinois without regard to
principles of conflicts of laws, such state being the state where such
documents were executed and delivered.
35. Agent. Beneficiary has been appointed as agent pursuant to the
Credit Agreement. In acting under or by virtue of this Deed of Trust,
Beneficiary shall be entitled to all the rights, authority, privileges and
immunities provided in Sections 10.1 through 10.14 of the Credit Agreement,
all of which provisions of said Sections 10.1 through 10.14 are incorporated
by reference herein with the same force and effect as if set forth herein.
Beneficiary hereby disclaims any representation or warranty to Lenders
concerning the perfection of the security interest granted hereunder or the
value of the Mortgaged Premises.
36. Partial Invalidity. All rights, powers and remedies provided herein
are intended to be limited to the extent necessary so that they will not render
this Deed of Trust invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law. If any term of this Deed of
Trust shall be held to be invalid, illegal or unenforceable, the validity and
enforceability of the other terms of this Deed of Trust shall in no way be
affected thereby.
37. Successors and Assigns. Whenever any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; and all the covenants, promises and agreements in this
Deed of Trust contained by or on behalf of Grantor, or by or on behalf of
Trustee or Beneficiary, shall bind and inure to the benefit of the respective
successors and assigns of such parties, whether so expressed or not.
38. Headings. The headings in this instrument are for convenience of
reference only and shall not limit or otherwise affect the meaning of any
provision hereof.
39. Changes, Etc. This instrument and the provisions hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
40. Acceptance of Trust. Trustee accepts this Trust when this Deed of
Trust, duly executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of pending sale under
any other deed of trust or any action or proceeding in which Grantor,
Beneficiary, or Trustee shall be a party, unless brought by Trustee.
IN WITNESS WHEREOF, Grantor has caused these presents to be signed and
sealed the day and year first above written.
By______________________________________________
Its_____________________________________________
[SEAL]
Attest:
_______________________________
________________ Secretary
STATE OF __________ )
) SS
COUNTY OF _________ )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this _____ day of ____________, 2000, within my
jurisdiction, the within named __________, who acknowledged that (he)(she) is
_________ of ___________, a __________ corporation, and that for and on behalf
of the said corporation, and as its act and deed (he)(she) executed the above
and foregoing instrument, after having been duly authorized by said corporation
so to do.
______________________________________________________________________________
Notary Public
(SEAL)
My commission expires:
_____________________
<PAGE>
SCHEDULE I
LEGAL DESCRIPTION
Property Address: ___________________________________
___________________________________
P.I.N. No.: _______________________________
EXHIBIT X
NON-PRINCIPAL PROPERTIES
PART 1. Non-Principal Property required to be encumbered.
1. Inventory.
2. Accounts receivable.
3. All other Non-Principal Property not specified in Part 2 below.
PART 2. Non-Principal Property not required to be encumbered.
1. Property excluded from the granting clauses of any of the Security
Documents.
2. Capital Stock of Newsprint South, Inc.
3. Real estate owned by NSI Land Corporation located in Grenada, Mississippi
leased to Newsprint South, Inc.
4. Property which is subject to a contractual prohibition on being encumbered.
5. An undivided interest in 680.40 acres of undeveloped real estate located in
Yazoo County, Mississippi described in Yazoo County real estate records in
Warranty Deed Book 211A Pages 648, 653, 658, 660, 661 and 662.
6. Other Non-Principal Properties which the Administrative Agent agrees with
the Borrower not to encumber, provided that all such Property shall have an
aggregate value of not to exceed $5,000,000.
<PAGE>
Exhibit Y
FORM OF OPINION OF COUNSEL TO THE BORROWER AND ITS SUBSIDIARIES
Date
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60690
The From Time to Time Banks Party
to the Credit Agreement described below
Ladies and Gentlemen:
I have served as counsel to Mississippi Chemical Corporation, a
Mississippi corporation (the "Borrower"), Mississippi Phosphates Corporation,
a Delaware corporation, Mississippi Potash, Inc., a Mississippi corporation,
Mississippi Nitrogen, Inc., a Delaware corporation, MCC Investments, Inc., a
Delaware corporation, Mississippi Chemical Management Company, a Delaware
corporation, Eddy Potash, Inc., a Mississippi corporation, TNI Barge, Inc., a
Delaware corporation, NSI Land Corporation, a Delaware corporation,
Mississippi Chemical Company, L.P., a Delaware limited partnership, MissChem
Nitrogen, L.L.C., a Delaware limited liability company, and Triad Nitrogen,
L.L.C., a Delaware limited liability company (together with the Borrower,
individually a "Company" and collectively the "Companies") in connection with
the execution and delivery to you by the Companies of the following documents
(individually a "Transaction Document" and collectively the "Transaction
Documents"):
(a) Third Amendment to Credit Agreement dated as of February 24, 2000
(the "Third Amendment") among the Borrower, the Guarantors named therein,
Harris Trust and Savings Bank, individually and as agent (the "Agent"), and
the from time to time banks party thereto (the "Banks");
(b) Security Agreement dated as of February 24, 2000 from the Companies
to the Agent (the "Security Agreement");
(c) Pledge Agreement dated as of February 24, 2000 from the Borrower,
Mississippi Nitrogen, Inc. and Mississippi Chemical Management Company to the
Agent (the "Pledge Agreement");
(d) Security Agreement Re Aircraft dated as of February 24, 2000 from the
Borrower to the Agent (the "Aircraft Security Agreement");
(e) First Preferred Fleet Mortgage dated as of February 24, 2000 from TNI
Barge, Inc. to the Agent (the "Fleet Mortgage");
The Security Documents have been executed and delivered pursuant to Section
7.27(a) of the Credit Agreement dated as of November 25, 1997, as amended (the
"Credit Agreement") among the Borrower, the Agent, and the Banks. The
documents described in paragraphs (b) through (e) above are referred to as the
"Security Documents").
As counsel to the Companies, I am familiar with the Articles of
Incorporation or Certificate of Incorporation and Bylaws of the Borrower,
Mississippi Phosphates Corporation, Mississippi Potash, Inc., Mississippi
Nitrogen, Inc., MCC Investments, Inc., Mississippi Chemical Management Company,
Eddy Potash, Inc., TNI Barge, Inc. and NSI Land Corporation, the Certificate of
Limited Partnership of Mississippi Chemical Company, L.P., and the Certificate
of Formation and the Limited Liability Company Agreement of MissChem Nitrogen,
L.L.C. and Triad Nitrogen, L.L.C. (respectively, the "Organizational
Documents"). I have also examined such other factual matters and matters of
law as I deem necessary or pertinent to the formulation of the opinions
hereinafter expressed.
In my examination, I have assumed the genuineness of all signatures (other
than those of the Companies), the authenticity of all documents submitted to me
as originals, and the conformity with authentic original documents of all
documents submitted to me as copies. Also, I have relied upon statements and
certifications of government officials and upon representations made in or
pursuant to the Transaction Documents and by representatives of the Companies
with respect to the Transaction Documents.
In rendering the opinions expressed below, I have assumed with respect to
all documents referred to herein (except with respect to the Companies) that:
(i) such documents have been duly authorized by, have been duly executed and
delivered by, and constitute legal, valid, binding, and enforceable obligations
of, all of the parties to such documents; (ii) all signatories to such
documents have been duly authorized; and (iii) all of the parties to such
documents are duly organized and validly existing and have the power and
authority to execute, deliver, and perform such documents.
Based upon the foregoing and subject to the qualifications and exceptions
set forth below, I am of the opinion that:
1. Each Company is a corporation, limited partnership or limited
liability company duly organized and validly existing and in good standing
under the laws of the State of its organization with full and adequate
corporate, limited partnership or limited liability company power and authority
to carry on its respective business as now conducted.
2. Each Company is duly qualified to transact the business in which it
is engaged and in good standing as a foreign corporation, limited partnership
or limited liability company in each jurisdiction wherein the conduct of its
respective business or the assets and properties owned or leased by it require
such qualification, except to the extent the failure to be so qualified would
not have a material adverse effect on the business or financial condition of
the Companies taken as a whole.
3. Each Company has full right, power and corporate, limited partnership
or limited liability company authority to encumber its assets, to secure the
obligations of the Borrower under the Credit Agreement and to observe and
perform all of the matters and things provided for in the Transaction Documents
executed by it.
4. The execution and delivery of each Transaction Document executed by
each Company does not, nor will the observance or performance of any of the
matters or things therein provided for, contravene (a) any of the respective
Organizational Documents of the Companies (there being no other agreements
under which each Company is organized), or, to my knowledge, of any material
agreement binding upon or affecting each Company or any of its properties or
assets, and (b) solely with respect to the Third Amendment, any provision of
applicable law, except where such contravention would not have a material
adverse effect on the properties, business, operations, or financial condition
of the Companies taken as a whole.
5. Each Transaction Document executed by each Company has been duly
authorized by all necessary corporate, limited partnership or limited liability
company action of each Company and has been executed and delivered by the
proper officer or member of each Company.
6. The Third Amendment constitutes a valid and binding agreement of each
Company that is a party thereto enforceable against each such Company in
accordance with its terms, subject to bankruptcy, insolvency, and other laws
affecting creditors' rights generally and to principles of equity.
7. Based solely upon my review of those statutes, rules, and regulations
that are generally applicable to transactions in the nature of those
contemplated by the Transaction Documents, no order known by me, authorization,
consent, license or exemption of, or filing or registration with, any court or
governmental department, agency, instrumentality or regulatory body, whether
state or federal, is or will be required in connection with the lawful
execution and delivery of the Transaction Documents or the observance and
performance by the Companies of any of the terms thereof, except (a) the filing
of Uniform Commercial Code financing statements, (b) the recordation of each
mortgage or deed of trust in the office of the recorder or registrar of deeds
in each county in which the real property subject thereto is located, and
(c) such as have already been obtained or, if not obtained, would not have a
material adverse effect on the properties, business, operations, or financial
condition of the Companies taken as a whole.
8. Except as set forth on Schedule 5.3 to the Credit Agreement, to my
knowledge, there is no action, suit, proceeding or investigation, at law or in
equity, of which we have been directly notified in writing or which has been
served upon us, before or by any court or public body, pending or threatened
against or affecting any Company or any of its assets and properties which, if
adversely determined, could result in any material adverse change in the
properties, business, operations or financial condition of the Companies taken
as a whole.
I express no opinion herein as to the legality, validity, binding nature
or enforceability of provisions of any Transaction Document (i) relating to
indemnification, exculpation, or contribution, to the extent such provisions
may be held unenforceable as contrary to public policy or federal or state
securities laws, (ii) relating to the release of a party from, or the
indemnification of a party against, liability for its own wrongful or negligent
acts under certain circumstances, (iii) insofar as it provides for the payment
or reimbursement of costs and expenses or for claims, losses, or liabilities in
excess of a reasonable amount determined by any court or other tribunal,
(iv) requiring written amendments or waivers of such documents insofar as it
suggests that oral or other modifications, amendments, or waivers could not be
effectively agreed upon by the parties or that the doctrine of promissory
estoppel might not apply, (v) waiving the right to object to venue in any
court, or (vi) relating to any consent or agreement to submit to the
jurisdiction of any court. I also express no opinion as to laws regarding
fraudulent transfers, conveyances, or obligations, or usury.
I render no opinion herein as to matters involving the laws of any
jurisdiction other than the State of Mississippi, the United States of America,
and for purposes of opinion paragraphs 1, 3, and 5 above, the State of
Delaware. I am not admitted to practice law in the State of Delaware; however,
I am generally familiar with the Delaware General Corporation Law, the Delaware
Revised Uniform Limited Partnership Act and the Delaware Revised Limited
Liability Company Act as presently in effect, and I have made such inquiries as
I consider necessary to render the opinions contained in opinion paragraphs 1,
3, and 5 above. This opinion is limited to the effect of the present state of
the laws of the State of Mississippi, the United States of America, and to the
limited extent set forth above in this paragraph, the State of Delaware and the
facts as they presently exist, and I assume no obligation to revise or
supplement this opinion in the event of future changes in such laws or the
interpretation thereof or such facts.
This opinion is rendered solely to you in connection with the Transaction
Documents and may not be relied upon by any person for any purpose other than
in connection with the transactions contemplated by the Transaction Documents
without, in each instance, my prior written consent.
Very truly yours,
William L. Smith
Vice President and General Counsel
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EXHIBIT Z
CERTIFICATE REGARDING COMPUTATION OF CONSOLIDATED NET TANGIBLE ASSETS
This Certificate Regarding Computation of Consolidated Net Tangible
Assets is furnished to Harris Trust and Savings Bank and the other Banks
(collectively, the "Banks") and Harris Trust and Savings Bank as Administrative
Agent (the "Administrative Agent") for the Banks, pursuant to that certain
Credit Agreement dated as of November 25, 1997, as amended by and among
Mississippi Chemical Corporation, a Mississippi corporation (the "Borrower"),
the Administrative Agent and the Banks (the "Agreement"). Unless otherwise
defined herein, the terms used in this Compliance Certificate have the meanings
ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [President] or [Chief Financial Officer] of the
Borrower;
2. The following is a computation of the Borrower's Consolidated Net
Tangible Assets as of __________, ______:
(a) Total Consolidated Assets of Mississippi Chemical $
Corporation
(b) Less: Intangible Assets $
(c) Consolidated Net Tangible Assets $
(d) Advance Rate 15%
(e) B Loan Availability Reserve $
(f) AVAILABILITY BASED ON CONSOLIDATED NET TANGIBLE ASSETS $
(PRODUCT OF LINES (C) AND (D) LESS LINE (E))
3. The foregoing computation is made in accordance with the requirements
of the Senior Note Indenture.
The foregoing certifications and computations are made and delivered this
_____ day of _______________________, ________.
________________________________________________
[President] or [Chief Financial Officer of The
Borrower]
