EXHIBIT 4.5
FOURTEENTH SUPPLEMENTAL INDENTURE
This Fourteenth Supplemental Indenture dated as of June 17, 1994, between
Mississippi Chemical Corporation, a Mississippi corporation (the "Company"), and
Deposit Guaranty National Bank, as Trustee (the "Trustee"), to the Indenture of
Mortgage, Deed of Trust, Assignment and Security Agreement dated as of
September 1, 1976, among the Company, New Orleans Bank for Cooperatives (now the
National Bank for Cooperatives), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as trustee for the benefit of
the New Orleans Bank for Cooperatives (the "Old Trustee") under certain deeds of
trust specified in the Original Indenture, and the Trustee (the "Original
Indenture"), as supplemented by a First Supplemental Indenture dated as of
September 7, 1976 (the "First Supplemental Indenture"), a Second Supplemental
Indenture dated as of September 30, 1976 (the "Second Supplemental Indenture"),
a Third Supplemental Indenture dated as of June 28, 1977 (the "Third
Supplemental Indenture"), a Fourth Supplemental Indenture dated as of May 1,
1978 (the "Fourth Supplemental Indenture"), a Fifth Supplemental Indenture dated
as of June 1, 1978 (the "Fifth Supplemental Indenture"), a Sixth Supplemental
Indenture dated as of September 1, 1979 (the "Sixth Supplemental Indenture"), a
Seventh Supplemental Indenture dated as of October 1, 1979 (the "Seventh
Supplemental Indenture"), an Eighth Supplemental Indenture dated as of May 15,
1983 (the "Eighth Supplemental Indenture"), a Ninth Supplemental Indenture dated
as of February 23, 1988 (the "Ninth Supplemental Indenture"); a Tenth
Supplemental Indenture dated as of December 26, 1989 (the "Tenth Supplemental
Indenture"); an Eleventh Supplemental Indenture dated as of July 16, 1990 (the
"Eleventh Supplemental Indenture"); a Twelfth Supplemental Indenture dated as of
August 6, 1992 (the "Twelfth Supplemental Indenture"); and a Thirteenth
Supplemental Indenture dated as of July 16, 1993 (the "Thirteenth Supplemental
Indenture") (the Original Indenture, as supplemented by the First through the
Thirteenth Supplemental Indentures, being hereinafter referred to as the
"Indenture"),
W I T N E S S E T H T H A T:
WHEREAS, the Company has duly authorized the issuance of a series of New
Notes (as defined in the Indenture) limited in aggregate outstanding principal
amount to $30,000,000, to be known as its Revolving Credit Note, Series J, Final
Maturity June 30, 1997 (the "Series J Note"), having the terms hereinafter
provided; and
WHEREAS, when issued and authenticated in accordance with the provisions of
the Indenture, the Series J Note will be secured on a parity with all other
Notes outstanding under the Indenture; and
WHEREAS, all acts and things necessary to make the Series J Note issued
pursuant to this Fourteenth Supplemental Indenture, when executed by the Company
and authenticated and delivered by the Trustee as provided in the Indenture,
the valid, binding and legal obligations of the Company, and to constitute these
presents, together with the Original Indenture, a valid indenture and agreement
according to its terms, have been done and performed, and the execution of this
Fourteenth Supplemental Indenture and the issue of the Series J Note hereunder
and under the Original Indenture have in all respects been duly authorized, and
the Company in the exercise of its legal right and power, executes this
Fourteenth Supplemental Indenture and the Company proposes to make, execute,
issue and deliver a series of New Notes in substantially the form set forth
herein, in the form of one registered note without coupons; and
WHEREAS, the Company and the Trustee desire to amend the Indenture as
hereinafter set forth pursuant to Section 10.01(a) thereof for the purpose of
establishing and issuing the Series J Notes in accordance with the provisions of
Section 2.14 thereof;
NOW, THEREFORE, the Indenture is hereby amended and supplemented as
follows:
ARTICLE I
TERMS
PARAGRAPH 1.01. Table of Contents. The Table of Contents of the Indenture
is hereby amended and supplemented as follows:
(a) By adding the following in alphabetical order to the index of
Article One, Section 1.01:
Series J Revolving Credit Agreement p. 18
Series J Note p. 18
(b) By adding the following in numerical order to the index of Articles
Two and Five:
Section2.23 Series J Note p. 32
Section5.18 Covenant of the Company for the Benefit
of Series J Note p. 66
(c) By adding the following immediately following the index to Article
Seven:
Article Seven-C. Covenants of the Company in Article Seven Extended to
the holders of the Series J Note p. 73
PARAGRAPH 1.02. Definitions. Section 1.01 of the Indenture is hereby
amended and supplemented as follows:
(a) (i) by adding the words "and Series J" after the words "Series B" in
the sixth line of the definition of "Restricted Subsidiary," as amended by
the First, Tenth and Twelfth Supplemental Indentures;
(ii) by adding after the words "Article Seven-B of the Indenture" in clause
(i) of the definition of "Restricted Subsidiary," as amended by the First,
Tenth and Twelfth Supplemental Indentures, the following:
, or in such section, as incorporated in Article Seven-C of
the Indenture,
(b) by adding the following immediately after the definition of "Series I
Revolving Credit/Term Loan Agreement":
"Series J Revolving Credit Agreement" means the Revolving Credit
Agreement described in Section 2.23(c) hereof, together with any
amendments thereto delivered to the Trustee in conformity with
this Indenture.
"Series J Note" means the Revolving Credit Note, Series J, final
maturity June 30, 1997, of the Company, authorized and secured by
this Indenture pursuant to Section 2.23 hereof.
PARAGRAPH 1.03. Provision for the Series J Notes. Article Two of the
Indenture is hereby amended and supplemented by adding the following Section
2.23 thereto:
PARAGRAPH 2.23 The Series J Note
(a) There is hereby created a Note to be known as the
Revolving Credit Note, Series J, Final Maturity June 30, 1997, of
the Company (the "Series J Note"). The Series J Note shall be
issued in the form of one registered note and shall be in
substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS AND MAY NOT BE RESOLD,
TRANSFERRED OR ASSIGNED WITHOUT REGISTRATION OR
WITHOUT OBTAINING AN EXEMPTION FROM SUCH REGISTRATION
MISSISSIPPI CHEMICAL CORPORATION
Revolving Credit Note, Series J
Final Maturity June 30, 1997
Date of initial advance:
---------------
$30,000,000 (Maximum advance)
FOR VALUE RECEIVED, the undersigned MISSISSIPPI CHEMICAL CORPORATION, a
Mississippi corporation (hereinafter with its successors, referred to as the
"Company"), hereby promises to pay to NationsBank of Tennessee, N.A.
(hereinafter referred to as the "Payee"), or its duly registered assigns, on
dates set forth below, the lesser of the principal sum of THIRTY MILLION DOLLARS
($30,000,000) or the aggregate unpaid principal amount of all Revolving Credit
Loans (as hereinafter defined) made by the Payee to the Company hereunder, and
to pay interest from the date hereof on the principal amounts hereof from time
to time outstanding at a rate or rates per annum as hereinafter set forth.
Revolving Credit Agreement
This Note is issued pursuant to the provisions of, inter alia, the Series J
Revolving Credit Agreement (as hereinafter defined) between the Payee and the
Company dated as of June 17, 1994, to which Agreement reference is hereby made
for a statement of the terms and conditions under which the loans evidenced
hereby were or are to be made.
Definitions
The following terms, as used in this Note, shall have the following
meanings:
"Credit Facility" means the maximum amount available to be lent by the
Payee to the Company pursuant to the Series J Revolving Credit Agreement,
initially, $30,000,000.
"Credit Facility Reduction Notice" means a written notice by the Company to
the Payee pursuant to which the Company elects to reduce the amount of the
Credit Facility which reduction shall be in minimum increments of $2,500,000.
"Eurodollar Business Day" means any day on which commercial banks are open
for domestic and international business (including dealings in U.S. Dollar
deposits) in London and New York City.
"Eurodollar Interest Period" means for each LIBOR Based Rate Loan, the
period during which interest at the LIBOR Based Rate, determined as provided in
this Note, shall be applicable, provided, however, that each such period shall
be either one (1), two (2), three (3), six (6) or twelve (12) months, which
shall be measured from the date specified by the Company in each Eurodollar Rate
Request for the commencement of the computation of interest at the LIBOR Based
Rate, to the numerically corresponding day in the calendar month in which such
period terminates; provided, however, that if there is no such numerically
corresponding day in such succeeding month, such Eurodollar Interest Period
shall end on the last Business Day of such succeeding month. If a Eurodollar
Interest Period would otherwise end on a day which is not a Business Day, such
Eurodollar Interest Period shall end on the next succeeding Business Day;
provided, however, that if such next succeeding Business Day follows in a new
month, such Eurodollar Interest Period shall end on the immediately preceding
Business Day. The Company may not elect any Eurodollar Interest Period which
ends later than the Final Maturity Date. Interest shall accrue from and
including the first day of a Eurodollar Interest Period to but excluding the
last day of such Eurodollar Interest Period.
"Eurodollar Rate Request" means telephonic notice by the Company to be
received by the Payee by 11:00 am (Nashville time) one (1) Eurodollar Business
Day (or the latest Payee Business Day prior thereto if such day is not a Payee
Business Day) prior to the date specified in the Eurodollar Rate Request for the
commencement of the Eurodollar Interest Period, and specifying the amount of the
LIBOR Based Rate Loan and the applicable Eurodollar Interest Period desired by
the Company for such LIBOR Based Rate Loan. The Company shall promptly confirm
such notice in writing.
"Final Maturity Date" means the date all of the principal of, premium, if
any and interest on the Series J Note is payable, whether by scheduled
installments, acceleration or otherwise.
"Fixed Rate" means a fixed rate of interest equal to the rate on U.S.
Treasury Notes with comparable terms and maturities approximately equal to the
Fixed Rate Interest Period plus 2.00% per annum.
"Fixed Rate Interest Period" means for each Fixed Rate Loan, the period
during which such loan bears interest at a Fixed Rate. If a Fixed Rate Interest
Period would otherwise end on a day which is not a Business Day, such Fixed Rate
Interest Period shall end on the next succeeding Business Day; provided,
however, that if such next succeeding Business Day follows in a new month, such
Fixed Rate Interest Period shall end on the immediately preceding Business Day.
The Company may not elect any Fixed Rate Interest Period which ends later than
the Final Maturity Date. Interest shall accrue from and including the first day
of a Fixed Rate Interest Period to but excluding the last day of such Fixed Rate
Interest Period.
"Fixed Rate Request" means written notice by the Company that it elects to
have all or a portion of the outstanding principal amount of this Note bear
interest at a Fixed Rate, which notice shall specify the principal amount of
such Fixed Rate Loan and the duration of the Fixed Rate Interest Period.
"LIBOR Based Rate" means a rate per annum equal to the sum of (a) the LIBOR
Rate for dollar deposits approximately equal in principal amount to the LIBOR
Based Rate Loan requested in the Eurodollar Rate Request and with a maturity
comparable to the Eurodollar Interest Period in question, plus (b) 1.25% for any
Eurodollar Interest Period or portion thereof.
"LIBOR Rate" means, with respect to any LIBOR Based Rate Loan for any
Eurodollar Interest Period, the interest rate per annum for deposits in Dollars
which currently appears on the Telerate Screen Page 3807 (as defined herein)
(rounded up to the next 1/16 of 1% if such rate appears as a fraction smaller
than 1/16 of 1%) as of 12:00 noon, Nashville time, on the day that is one (1)
Eurodollar Business Day preceding the first day of the applicable Eurodollar
Interest Period. If no such offered rate appears on the Telerate Screen Page
3807, the rate in respect of the applicable Eurodollar Interest Period will be
the rate per annum (rounded up to the next 1/16 of 1% if such rate is a fraction
smaller than 1/16 of 1%) at which deposits in Dollars are offered by the
Reference Banks (as hereinafter defined) at approximately 12:00 noon, Nashville
time, on the date that is one (1) Eurodollar Business Day preceding the
commencement of such applicable Eurodollar Interest Period to prime banks in the
London interbank market for a period of time equal to such applicable Eurodollar
Interest Period in a Representative Amount (as hereinafter defined). Payee will
request each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate in respect of such applicable
Eurodollar Interest Period will be the arithmetic mean of the quotations. If
fewer than two quotations are provided as requested, the LIBOR Based Rate will
be unavailable and such loan amount shall bear interest at the Prime Rate.
"Payee Business Day" means a day on which commercial banks in Nashville,
Tennessee, are not authorized or required to close.
"Prime Rate" means the fluctuating reference or benchmark rate of interest
that is publicly announced by NationsBank of Tennessee, N.A. as its Prime Rate
to be in effect from time to time with any changes in such Prime Rate to be
effective on the date of the public announcement of such change. The Prime Rate
is not necessarily the lowest rate of interest charged by NationsBank of
Tennessee, N.A.
"Quarterly Payment Date" means the last day of each March, June, September
and December commencing on the first such day following the date of the initial
advance under the Series J Revolving Credit Agreement.
"Reference Banks" means the principal London offices of Barclays Bank PLC,
National Westminister Bank PLC, Bankers Trust International, Ltd. and Bank of
Tokyo, Ltd.
"Revolving Credit Loan" means a Prime Rate, LIBOR Based Rate or Fixed Rate
Loan made pursuant to the Series J Revolving Credit Agreement.
"Series J Revolving Credit Agreement" means the Revolving Credit Agreement
between the Company and NationsBank of Tennessee, N.A., dated as of June 17,
1994, as the same is amended or supplemented.
"Telerate Screen Page 3807" means the display designated as page 3807 on
the Telerate Screen (or such other page as may replace page 3807 on that service
for the purpose of displaying London interbank offered rates of major banks).
Interest Rate
All advances hereunder shall, unless the Company otherwise elects as
hereinafter set forth, bear interest at the Prime Rate. The Company shall have
the right at any time, on prior irrevocable written or telex notice to the Payee
not later than 11:00 a.m., Nashville time, to convert any Prime Rate, Fixed
Rate, or LIBOR Based Rate Loan into a Revolving Credit Loan of another type, or
to continue any LIBOR Based Rate Loan for a Eurodollar Interest period or any
Fixed Rate Loan for a Fixed Rate Interest Period (specifying in each case the
interest Period to be applicable thereto), subject in each instance to the
following: (a) no LIBOR Based Rate Loan shall be converted at any time other
than at the end of the Eurodollar Interest Period applicable thereto; (b) no
Fixed Rate Loan shall be converted at any time other than at the end of the
Fixed Rate Interest Period applicable thereto unless the Company also pays at
the same time the prepayment penalty, if any, due hereunder as specified in the
section on Prepayments; (c) each conversion shall be effected by applying the
proceeds of the new LIBOR Based Rate, Fixed Rate, and/or Prime Rate Loan, as the
case may be, to the Revolving Credit Loan (or portion thereof) being converted;
and (d) the number of LIBOR Based Rate Loans and Fixed Rate Loans at any time
outstanding shall not exceed an aggregate of five (5). Each Fixed Rate Request
and/or Eurodollar Rate Request shall be irrevocable and shall refer to this Note
and specify (i) the identity and principal amount of the particular Revolving
Credit Loan that the Company requests be converted or continued, (ii) if such
notice requests conversion, the date of such conversion (which shall be a
Business Day for Fixed Rate Loans and a Eurodollar Business Day for LIBOR Based
Rate Loans), and (iii) if a Revolving Credit Loan is to be converted to a LIBOR
Based Rate Loan or a Fixed Rate Loan or a LIBOR Based Rate Loan or Fixed Rate
Loan is to be continued, the Eurodollar or Fixed Rate Interest Period with
respect thereto. In the event the Company shall not give notice to continue any
LIBOR Based Rate or Fixed Rate Loan for a subsequent period, such Revolving
Credit Loan (unless repaid) shall automatically be converted into a Prime Rate
Loan. If the Company shall fail to specify in the request the type of borrowing
or, in the case of a Fixed Rate Loan, the applicable Fixed Rate Interest Period,
the Company will be deemed to have requested a Prime Rate Loan. If the Company
shall fail to specify in any Eurodollar Rate Request the applicable Eurodollar
Interest Period, the Company will be deemed to have selected a Eurodollar
Interest Period of one (1) month's duration. Notwithstanding anything to the
contrary contained above, if an Event of Default shall have occurred and be
continuing, no LIBOR Based Rate or Fixed Rate Loan may be continued and no Prime
Rate Loan may be converted into a Fixed Rate or LIBOR Based Rate Loan.
Interest Payments
All payments hereunder shall be made in lawful money of the United States
of America, with interest on the whole of said principal amount remaining from
time to time unpaid from the date hereof at a LIBOR Based Rate, the Prime Rate
or a Fixed Rate and as provided herein, until the principal hereof shall become
due and payable (whether at maturity, on a date fixed for prepayment, by
acceleration or otherwise). Interest shall be computed in all cases on the
basis of a 360-day year for the actual number of days elapsed. Interest shall
be payable as follows: with respect to any portion of this Note bearing interest
at a LIBOR Based Rate (a "LIBOR Based Rate Loan"), interest shall be payable on
the last day of each applicable Eurodollar Interest Period, unless such
Eurodollar Interest Period exceeds three (3) months, in which event interest
shall be payable with respect to the principal amount bearing interest at such
LIBOR Based Rate on each Quarterly Payment Date occurring after the first day of
the Eurodollar Interest Period through the last day of such Eurodollar Interest
Period, and on the last day of each Eurodollar Interest Period; with respect to
any portion of this Note bearing interest at the Prime Rate (a "Prime Rate
Loan"), interest shall be payable on each Quarterly Payment Date; with respect
to any portion of this Note bearing interest at a Fixed Rate (a "Fixed Rate
Loan"), interest shall be payable on each Quarterly Payment Date and on the last
day of each Fixed Rate Interest Period, in each case commencing on the first
such date following the making of such loan.
Place of Payments; Default Rate
The principal of, premium, if any, and interest on this Note shall be
payable at the principal office of NationsBank of Tennessee, N.A., or at such
other place as the registered holder may designate from time to time in writing
which designation shall be made at least ten (10) days before such principal,
premium or interest is due. Without limitation of any other rights of the
holder, overdue payments of principal (including any overdue prepayment of
principal) or premium, if any, and (to the extent permitted by applicable law)
overdue payments of interest shall bear interest at the rate applicable to such
overdue principal, plus two percent (2%) per annum.
Maximum Rate
Notwithstanding the above, in no event whatsoever shall the interest rate
applicable to this Series J Note exceed the maximum amounts collectible under
applicable laws in effect from time to time. If for any reason whatsoever the
interest rate applicable to this Series J Note exceeds the maximum permissible
rate under applicable laws in effect from time to time, then, ipso facto, the
obligation to pay such interest shall be reduced to the maximum amounts
collectible under applicable laws in effect from time to time, and any amounts
paid to the Payee that exceed such maximum amounts shall be applied to the
reduction of the principal balance of this Series J Note and/or refunded to the
Company so that at no time shall the interest rate applicable to this Series J
Note exceed the maximum amounts permitted from time to time by applicable law.
This provision shall control every other provision herein and in any and all
other agreements and instruments now existing or hereafter arising between the
Company and the Payee with respect to this Series J Note.
Principal Advances and Payments
Subject to the provisions of the Series J Revolving Credit Agreement, the
Company may request (upon one day's notice in writing) that the Payee advance an
amount in increments of $1,000,000 which, when added to the amount previously
requested and still unpaid, does not exceed the Credit Facility.
Unless sooner paid, all outstanding principal on this Note, together with
any unpaid accrued interest, shall be payable on June 30, 1997.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the Payee on Schedule I attached hereto or on a form
substantially similar to said Schedule I attached hereto and made a part hereof,
or otherwise recorded by the Payee in its internal records; provided, however,
that the failure of the Payee to make such a notation or any error in such a
notation shall not in any manner affect the obligation of the Company to make
the payments of principal and interest in accordance with the terms of this Note
and the Series J Revolving Credit Agreement.
In the event any day on which payment of principal or interest is due is
not a Payee Business Day, such payment may be made on the next succeeding Payee
Business Day.
Change in Legality
Notwithstanding anything to the contrary herein contained, if any change in
any law or regulation or in interpretation thereof by any governmental authority
charged with the administration or interpretation thereof shall make it unlawful
for the Payee to make or maintain any LIBOR Based Rate Loan or to give effect to
its obligations as contemplated in the Series J Revolving Credit Agreement,
then, by written notice to the Company describing such changes, the Payee may
(1) declare that LIBOR Based Rate Loans will not thereafter be made by the Payee
under the Series J Revolving Credit Agreement, whereupon the Company shall be
prohibited from requesting LIBOR Based Rate Loans from the Payee unless such
changes are subsequently withdrawn or otherwise rendered ineffective, notice of
which shall be promptly provided by the Payee to the Company; and (2) require
that all outstanding LIBOR Based Rate Loans shall be converted to Prime Rate
Loans, in which event (a) all such LIBOR Based Rate Loans shall be automatically
converted without penalty or additional charge to the Company to Prime Rate
Loans as of the effective date of such notice as set forth below and (b) all
payments and prepayments of principal that would otherwise have been applied to
repay the converted LIBOR Based Rate Loans shall instead be applied to repay the
Prime Rate Loans resulting from the conversion of such LIBOR Based Rate Loans.
For purposes of the preceding paragraph, a notice to the Company by the
Payee shall be effective, if lawful, on the last day of the Eurodollar Interest
Period for each respective LIBOR Based Rate Loan; in all other cases, such
notice shall be effective on the later of (i) the date of receipt by the Company
or (ii) the date set forth in such notice.
Alternate Rate
Anything herein to the contrary notwithstanding, if, prior to the
determination of the LIBOR Based Rate in respect of any Eurodollar Rate Request
as herein provided, Payee advises the Company in writing that (i) dollar
deposits in the amount of a requested principal amount of a LIBOR Based Rate
Loan are not generally available in the London Interbank Market; (ii) the rate
at which such dollar deposits are being offered will not adequately and fairly
reflect the cost to the Payee of making or maintaining such LIBOR Based Rate
Loan during such Eurodollar Interest Period; or (iii) reasonable means do not
exist for ascertaining the LIBOR Rate, any request by the Company for a LIBOR
Based Rate Loan shall, until the circumstances giving rise to such notice no
longer exist, be deemed to be a request for a Prime Rate Loan. Each
determination by the Payee hereunder shall be conclusive absent manifest error.
If at any time subsequent to the giving of such notice Payee determines that
because of a change in circumstances the LIBOR Based Rate is again available,
Payee shall so advise the Company and the Company shall have the option to
convert the rate of interest payable hereunder from the Prime Rate to the LIBOR
Based Rate by submitting a Eurodollar Rate Request to Payee and otherwise
complying with the provisions of this Note with respect thereto.
Prepayments
The Company shall have the right to prepay (a) any Prime Rate Loan at any
time, in whole or in part, and (b) each LIBOR Based Rate Loan, in whole or in
part, on the last day of the applicable Eurodollar Interest Period for such
loan, in each case at the prepayment price of the principal amount to be prepaid
plus interest to the prepayment date, without premium or penalty; provided any
prepayments shall be in principal increments of $1,000,000 or greater.
The Company shall have the right at any time to prepay any Fixed Rate Loan,
in whole or in part, at the redemption price of 100% of the principal amount so
prepaid plus interest to the prepayment date, plus the Yield-Maintenance
Premium, if any.
As used herein, "Yield Maintenance Premium" shall mean an amount equal to
the quotient of: (A) the product of (1) the outstanding principal amount of the
Fixed Rate Loan immediately prior to prepayment, multiplied by (2) the excess of
the Fixed Rate applicable thereto over the sum of two percent (2%) per annum
plus the annual yield on a United States Treasury Bond having substantially the
same maturity as the Fixed Rate Loan (the "Treasury Bond Yield"), as such yield
is reported in The Wall Street Journal or, in the event such Treasury Bond Yield
is no longer published in The Wall Street Journal, a similar publication
acceptable to Payee, on the fifth (5th) business day preceding the date of
prepayment and (3) the number of months remaining in the Fixed Rate Loan term;
divided by (B) twelve (12). Such quotient shall be discounted to present value
as of the date of prepayment by applying a discount rate equal to the Treasury
Bond Yield.
This Note or the installments thereof so prepaid will cease to bear
interest on the specified prepayment date, provided funds for its prepayment are
on deposit with the Payee or with the Trustee at that time, and this Note or
such installments shall no longer be entitled to the benefit of the Indenture
and shall not be deemed to be outstanding under the provisions of the Indenture.
Indenture
This Note is the sole note of an authorized issue of notes of the Company,
as provided in the Indenture mentioned below and is herein called the "Series J
Note," of the series designated "Revolving Credit Notes, Series J, Final
Maturity June 30, 1997," limited to $30,000,000 in aggregate principal amount
outstanding, all issued and to be issued under and equally and ratably secured
by an Indenture of Mortgage, Deed of Trust, Assignment and Security Agreement
dated as of September 1, 1976, among the Company, the New Orleans Bank for
Cooperatives (now the National Bank for Cooperatives), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as
trustee under certain deeds of trust, and Deposit Guaranty National Bank, as
Trustee (said indenture, together with all indentures supplemental thereto,
being herein called the "Indenture" and said corporate trustee or its successor
as trustee being herein called the "Trustee"), to which Indenture reference is
hereby made for a description of the property mortgaged and pledged, the nature
and extent of the security, the rights and remedies and limitations of said
rights and remedies of the holders of the Series J Note, and of the rights,
powers, duties and immunities of the Trustee thereunder, and of the rights and
obligations of the Company thereunder, and the terms and conditions upon which
the Series J Note is, and will be, issued and secured. This Note is entitled to
the benefits of the Indenture. By accepting this Note, each holder agrees to be
bound by and subject to the provisions of the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than fifty-one percent (51%) of the
aggregate unpaid principal amount of all Notes and of not less than fifty-one
percent (51%) of the unpaid principal amount of each Series of Notes at the time
outstanding except for the Series D, E and F Pollution Control Notes, the Series
G Industrial Development Note, and any other Notes with respect to which the
Supplemental Indenture relating to the issuance of such series of Notes provides
that such series shall not have the series vote, or, if one or more but not all
of the series of Notes then outstanding would be affected by such amendment,
modification or alteration, of not less than fifty-one percent (51%) in
aggregate unpaid principal amount of the Notes of each series so affected,
evidenced as provided in the Indenture, to execute supplemental indentures
adding any provision to, or changing in any manner, or eliminating any of the
provisions of, the Indenture; provided however, that without the written consent
of the holders of one hundred percent (100%) in aggregate unpaid principal
amount of any series of Notes affected thereby at the time outstanding, no such
supplemental indenture shall (1) extend the final maturity of any Note of such
series or reduce the rate or extend the time of payment of interest thereon, or
reduce the amount of the principal thereof, or reduce any premium payable on the
prepayment thereof, or reduce the amount required to be paid as a mandatory
prepayment of any Note of such series or extend the time within which any such
prepayment is to be made or alter the manner in which any note of such series is
selected for prepayment, or (2) affect the rights of holders of some of the
Notes without similarly affecting the rights of the holders of all of the Notes
at the time outstanding, or (3) create any priority with respect to Notes of any
series over Notes of any other series, or (4) reduce the aforesaid percentages
of the principal amount of the Notes or any series thereof required to approve
any such supplemental indenture or reduce the percentage required to effectuate
a waiver as referred to in the next sentence, or (5) amend Section 10.02 of the
Indenture. The Indenture also provides that the holders of not less than
fifty-one percent (51%) in aggregate unpaid principal amount of any or each
series of Notes at the time outstanding may on behalf of the holders of all
Notes of such series or all series, respectively, waive compliance with or
failure to comply with certain covenants contained in the Indenture.
Default
If an Event of Default as defined in the Indenture shall occur and be
continuing, the principal of all Notes may be declared due and payable upon the
conditions and in the manner and with the effect provided in the Indenture. The
Trustee or the holders of the Notes shall be entitled to recover reasonable
counsel fees incurred in any action, suit or proceeding brought to enforce the
Notes or the Indenture in which judgment is recovered.
Registration
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee under
the Indenture referred to herein.
Subject to the restrictions on transfer set forth in the Indenture and the
Series J Revolving Credit Agreement, transfers of this Note may be registered
upon a register maintained for such purpose by the Trustee, as provided in the
Indenture. Prior to due presentment of this Note for registration of transfer,
the Company may treat the registered holder hereof as the absolute owner of this
Note for the purpose of receiving all payments of principal, premium, if any,
and interest hereon and for all other purposes hereof, of the Series J Revolving
Credit Agreement and of the Indenture.
Liability
No recourse shall be had for the payment of the principal of, or the
interest on, this Note or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, officer, director or stockholder, as such,
past, present or future, of the Company or of any predecessor or successor
corporation, either directly or through the Company or otherwise, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty, or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Controlling Law
This Note is made and delivered in Jackson, Mississippi, and shall be
governed by the local laws of the State of Mississippi without giving effect to
the conflicts of laws provisions thereof.
Waiver
The parties hereto, including the Company and any and all guarantors,
endorsers and pledgors, hereby waive presentment, demand, notice of dishonor,
protest and all other demands and notices in connection with the delivery,
acceptance, performance and enforcement of this Note.
IN WITNESS WHEREOF, MISSISSIPPI CHEMICAL CORPORATION has caused this Note
to be signed in its corporate name by the manual or facsimile signature of its
President or one of its Vice Presidents and its corporate seal to be impressed
hereon or a facsimile thereof to be imprinted hereon and to be attested by a
manual or facsimile signature of its Secretary or one of its Assistant
Secretaries.
(CORPORATE SEAL) MISSISSIPPI CHEMICAL CORPORATION
By:
-----------------------------
Name:
Title:
ATTEST:
By:
---------------------------
Name:
Title:
This is the Series J Note described in the Indenture referred to herein.
DEPOSIT GUARANTY NATIONAL BANK
as Trustee
By:
-----------------------------
Authorized Officer
SCHEDULE I
[FORM OF ENDORSEMENT OF SERIES J NOTE WITH RESPECT TO ADVANCES OF
CREDIT FACILITY AND PAYMENTS ON ACCOUNT OF PRINCIPAL]
ADVANCE OF CREDIT FACILITY AND
PAYMENTS ON ACCOUNT OF PRINCIPAL
Amount of Any # of Days Amount of
Credit Applicable In Credit Outstanding Unused
Facility Rate Interest Maturity Interest Facility Principal Commitment
Date Advanced Basis Rate Date Period Repaid Balance Balance
==== ========= ===== ======== ============ ========= ========== =========== ==========
==== ========= ===== ======== ============ ========= ========== =========== ==========
(b) Only the Series J Note bearing thereon a certificate
substantially in the form of the Trustee's certificate of
authentication hereinbefore recited, executed by the Trustee,
shall be valid or become obligatory for any purpose or entitle
the holder thereof to any right or benefit under this Indenture,
and the certificate of authentication by the Trustee upon the
Series J Note executed on behalf of the Company as aforesaid
shall be conclusive evidence that the Series J Note so
authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this
Indenture.
(c) The aggregate principal amount of the Series J Note
which may be issued and outstanding under this Indenture at any
one time shall not exceed $30,000,000, exclusive of Series J
Notes executed and delivered as provided in Section 2.12 of the
Indenture. The Series J Note shall mature, shall be subject to
mandatory prepayments, shall bear interest on the unpaid
principal amount thereof, and shall be dated, shall have such
interest payment dates, and shall have such other terms and
conditions, all as provided in the Series J Notes and in the
Series J Revolving Credit Agreement (a copy of which is attached
hereto as Exhibit A and incorporated by reference herein) as the
same may be amended or supplemented.
PARAGRAPH 1.04. Covenants of the Series J Revolving Credit Agreement
Incorporated. Article Five of the Indenture is hereby amended and supplemented
by adding the following new Section 5.18 thereto:
SECTION 5.18. The Company covenants and agrees for the
benefit of the Series J Noteholders that on and after the date on
which the Series J Note is first issued hereunder and so long as
any of the Series J Note is outstanding, it will observe and
perform each of the covenants contained in the Series J Revolving
Credit Agreement previously delivered to the Trustee, which
covenants are hereby incorporated by reference herein and deemed
to be a part of this Indenture as though such covenants as now in
effect were set forth in full herein. From and after the
delivery to the Trustee of a certified copy of any amendment to
the Series J Revolving Credit Agreement, certified by an
Officer's Certificate, the Company agrees that it will observe
and perform each of the covenants contained in the Series J
Revolving Credit Agreement as so amended and such covenants shall
thereupon be incorporated by reference hereunder and deemed to be
a part of this Indenture to the same extent as those covenants
referred to in the first sentence hereof. Upon the written
consent of the holders of at least fifty one percent (51%) of the
aggregate unpaid principal amount of the Series J Notes at the
time outstanding, compliance with any of the covenants now or
hereafter incorporated pursuant to this Section 5.18 may be
waived.
PARAGRAPH 1.05. Amendment of Section 5.08(a). Section 5.08(a) of the
Indenture is hereby amended by inserting in the ninth line thereof, immediately
after the words "the Series I Revolving Credit/Term Loan Agreement" the
following: ", the Series J Revolving Credit Agreement."
PARAGRAPH 1.06. Article Seven-C. A new Article Seven-C is hereby added to
the Indenture, immediately following Article Seven-B as follows:
ARTICLE SEVEN-C
COVENANTS OF THE COMPANY IN ARTICLE SEVEN
EXTENDED TO THE HOLDERS OF THE SERIES J NOTES
The Company covenants and agrees for the benefit of the
holders from time to time of the Series J Notes that so long as
any of the Series J Note is outstanding, the Company will perform
each and every covenant set forth in Sections 7.01 through 7.09
of this Indenture, as in effect as of June 17, 1994, whether or
not such covenants are amended pursuant to Article Ten of the
Indenture, and whether or not performance thereof is waived by
the holders of the Series B Notes on any one or more occasions
pursuant to Section 7.10 of the Indenture, and such covenants are
incorporated in this Article Seven-C by reference, to the same
extent as though set forth in full herein; provided, however,
that any of such provisions, as incorporated herein, may be
amended, and performance thereof may be waived, with the written
consent of the registered holders of at least fifty-one percent
(51%) of the aggregate unpaid principal amount of the Series J
Notes at the time outstanding.
PARAGRAPH 1.07. Amendment of Section 8.01(c). Section 8.01(c) of the
Indenture is hereby amended by deleting the word "or" following the words
"Article Seven-A," and by inserting after the words "Article Seven-B," a comma
and the words "or Article Seven-C."
PARAGRAPH 1.08. Amendment of Section 8.01(d). Section 8.01(d) of the
Indenture is hereby amended by deleting the word "or" after the words "Series H
Note Purchase Agreement," in the third line thereof, and by inserting after the
words "the Series I Revolving Credit/Term Loan Agreement" a comma and the words
"or the Series J Revolving Credit Agreement."
PARAGRAPH 1.09. Amendment of Section 8.01(e). Section 8.01(e) of the
Indenture is hereby amended by inserting in the second and fourth lines thereof
after the words "Series I Revolving Credit/Term Loan Agreement" a comma and by
inserting after said comma the words "Series J Revolving Credit Agreement."
ARTICLE 2
MISCELLANEOUS PROVISIONS
PARAGRAPH 2.01. Indenture in Effect. Except as supplemented and amended
by this Fourteenth Supplemental Indenture, all the covenants, agreements, terms
and stipulations contained in the Indenture, as heretofore in effect, shall
continue in full force and effect.
PARAGRAPH 2.02. Counterparts. This Fourteenth Supplemental Indenture may
be executed in any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original and all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Fourteenth Supplemental
Indenture to be duly executed on and as of the date first above written.
ATTEST: MISSISSIPPI CHEMICAL CORPORATION
Signed and acknowledged
in the presence of:
By: /s/ ▇▇▇▇▇ Truly
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Assistant General Counsel
Corporate Secretary
(CORPORATE SEAL)
ATTEST: DEPOSIT GUARANTY NATIONAL BANK,
as Trustee
Signed and acknowledged
in the presence of:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President and Trust Officer
Assistant Trust Officer
(CORPORATE SEAL)
STATE OF MISSISSIPPI
COUNTY OF YAZOO
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 29th day of June, 1994, within my jurisdiction,
the within named ▇▇▇▇▇ Truly and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who acknowledged that they
are Assistant General Counsel and Corporate Secretary, respectively, of
Mississippi Chemical Corporation, a Mississippi corporation, and that for and on
behalf of the said corporation, and as its act and deed they executed the above
and foregoing instrument, after first having been duly authorized by said
corporation so to do.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public
My Commission expires:
May 20, 1997
(Notarial Seal)
STATE OF MISSISSIPPI
COUNTY OF ▇▇▇▇▇
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 30th day of June, 1994, within my jurisdiction,
the within named ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged that
they are Vice President and Trust Officer and Assistant Trust Officer,
respectively, of Deposit Guaranty National Bank, a national banking association,
and that for and on behalf of the said corporation, and as its act and deed they
executed the above and foregoing instrument, after first having been duly
authorized by said corporation so to do.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public
My Commission expires:
February 18, 1996
(Notarial Seal)
EXHIBIT A
REVOLVING CREDIT AGREEMENT
June 17, 1994
NationsBank of Tennessee, N.A. (the "Lender") hereby agrees to make to
Mississippi Chemical Corporation, a Mississippi corporation (the "Company"),
subject to the terms hereof and provided there is no default hereunder,
revolving credit loans, all such loans outstanding and unpaid at any time to be
in amount up to but not in excess of the aggregate principal amount of
$30,000,000 (such amount, or such amount reduced as hereinafter provided, being
herein called the "Commitment" of the Lender). The Commitment shall be
available from June 30, 1994, up to the close of business on June 30, 1997.
Each revolving credit borrowing under this Revolving Credit Agreement (this
"Agreement") shall be made in a principal amount of at least $1,000,000.
ARTICLE I
TERMS
SECTION 1.1. Revolving Credit Loans. (a) The Company agrees to execute
and deliver to the Lender on the first loan closing date hereunder, against the
making by the Lender of such loan to the Company, a promissory note (herein,
together with any replacement notes, sometimes called the "Series J Note"), in
substantially the form of EXHIBIT A attached hereto and incorporated by
reference herein, properly authenticated by the Trustee. Loan closing dates may
be fixed by the Company to be any Business Day from June 30, 1994, to and
including June 29, 1997. The Company shall give the Lender notice (a "Borrowing
Notice") not later than 11:00 a.m. Nashville time one (1) Business Day prior to
any requested disbursement of a loan. Each Borrowing Notice shall be written
and may be made by telecopier, overnight commercial courier, telex or cable.
Each Borrowing Notice shall specify the requested date of such disbursement, the
aggregate amount of such disbursement, the type of loan, i.e., Prime Rate, LIBOR
Based Rate or Fixed Rate; and if a LIBOR Based Rate or Fixed Rate, the
designated Eurodollar or Fixed Interest Period, as the case may be. Not later
than noon Nashville time on each disbursement date, and subject to the terms and
conditions hereof, the Lender will credit the proceeds of the loans to the
Company's deposit account with the Lender. Each such Borrowing Notice shall
obligate the Company to accept the disbursement of the loans requested thereby.
Each loan shall be recorded on a schedule substantially similar to that
appearing on the Series J Note (the "Schedule") by the Lender, shall be payable
to the Lender and shall represent the obligation of the Company to pay either
the amount of the Commitment or the aggregate unpaid principal amount of all
revolving credit loans made by the Lender as recorded on the Schedule, whichever
is less. Upon request of the Company, the Lender shall furnish to the Company a
copy of the Schedule, as updated and revised to reflect such loans and all prior
transactions under the Series J Note, in each case certified by a duly
authorized officer of the Lender to be a true, correct, and complete copy of the
Schedule, as then in effect. Revolving credit loans made by the Lender and
payments of principal with respect to the Series J Note shall be evidenced by
notations made by the Lender on the Schedule, showing the date and amount of
each such loan or payment of principal; provided, however, that the failure of
the Lender to make such a notation or any error in such a notation shall not in
any manner affect the obligation of the Company to make payments of principal
and interest in accordance with the terms of the Series J Note. The aggregate
unpaid amount of loans set forth on the Schedule shall be rebuttably presumptive
evidence of the principal amount owing and unpaid on such Series J Note. Upon
the request of the Lender, the Company will furnish a new Series J Note
(properly authenticated by the Trustee) to replace any such Series J Note, which
replaced Series J Note shall be returned simultaneously to the Company by the
Lender and marked "Cancelled" and, at such time, the first notation made on the
Schedule attached to such replacement Series J Note shall set forth the
aggregate unpaid amount of loans appearing on the Schedule of the Series J Note
being so replaced.
(b) Notwithstanding the foregoing provisions of this Agreement, the Lender
shall not be obligated to make any additional revolving credit loans during any
period (1) in which an Event of Default shall have occurred and be continuing,
or (2) in which all or substantially all of the manufacturing business of the
Company at its Yazoo City, Mississippi manufacturing facility is shut down,
closed or stopped as a direct result of both (i) any alleged or actual violation
of any Environmental Laws (as defined in Section 6.5 herein) and (ii) the
imposition by a federal or state court or federal agency of competent
jurisdiction of a cease and desist order, temporary restraining order,
preliminary injunction, permanent injunction or other equitable relief, or
(3) after the occurrence of a Material Adverse Effect, or (4) forty-four (44)
days after a lien has been filed against assets of the Company or of a
Restricted Subsidiary for federal income taxes which are in excess of $15
million dollars.
SECTION 1.2. Form of Note. Each Series J Note shall bear interest, be
payable at such time and place and be subject to mandatory and optional payment
as provided in the form of Series J Note.
SECTION 1.3. Agent's and Certain Other Fees. (a) As a consideration for
the Lender's acting as agent for itself and for any Participating Banks (as
defined in Section 10.9 herein) hereunder, the Company agrees to pay the Lender
an agent's fee of $25,000 due on the initial closing date. On each anniversary
date of the initial closing date (the "Anniversary Date"), the Company agrees to
pay in advance to the Lender an annual agent's fee of (a) $25,000 if the Lender
and its Affiliates (other than Participating Banks) collectively retain 75% or
less of the principal amount of the Series J Note or (b) $10,000 if the Lender
and its Affiliates (other than Participating Banks) collectively retain more
than 75% of the principal amount of the Series J Note. Determination of the
principal amount of the Series J Note held by the Lender and its Affiliates
shall be on the basis of the average amount of the Series J Note held by them
for the previous 12 months. A pro rata portion of the agent's fee shall be
payable for the period from the last Anniversary Date occurring prior to
June 30, 1997.
(b) In addition, if the out-of-pocket expenses of Lender and any
Participating Bank described in Section 10.7 hereof, when added to such expenses
incurred in connection with the amendment of the Revolving Credit/Term Loan
Agreement between Lender and the Company dated August 6, 1992 (the "Series I
Loan"), do not exceed $30,000, the Company agrees to pay to the Lender a
one-time closing fee equal to one-half the difference between $30,000 and such
aggregate fees and expenses of Lender and any Participating Bank with respect to
the Series I Loan and this Agreement. Such fees and expenses shall be
designated at the initial closing date.
(c) On the initial closing date and each Anniversary Date other than the
last, the Company shall also pay the Lender a facility fee equal to .0625% of
the then-existing Commitment.
SECTION 1.4. Nonusage Fee. In addition to the amounts payable pursuant to
Section 1.3 above, the Company agrees to pay to the Lender a nonusage fee of 1/4
of 1% per annum (on the basis of a year having 360 days for the actual number of
days elapsed) on the average daily unused portion of the Commitment from
June 30, 1994, to and including the earlier of the termination of the Commitment
or June 30, 1997, such amount to be payable quarterly on the last day of each
March, June, September and December hereafter commencing September 30, 1994.
SECTION 1.5. Commitment Reduction. At any time and from time to time on
or before June 30, 1997, the Company may terminate or reduce the Commitment by
an amount not less than $2,500,000. Once reduced, the Commitment may be
increased only with the written consent of the Lender. The Commitment may not
be reduced to an amount less than the principal amount of the Commitment
advanced and not repaid to the date of such reduction. Any such optional
termination or reduction shall be without premium or penalty.
SECTION 1.6. Changes in Circumstances. (a) Notwithstanding any other
provision herein, if after the date of this Agreement any change in applicable
laws or regulation or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) shall change the basis of taxation of
payments to the Lender or to any Participating Bank under any LIBOR Based Rate
Loan made by the Lender and such Participating Bank (each of Lender and any
Participating Bank is referred to in this Section 1.6 as a "Participant" and are
collectively referred to as "Participants") or any other fees or amounts payable
hereunder (other than taxes imposed on the overall net income of such
Participant by the country in which such Participant is located, or by the
jurisdiction in which such Participant has its principal office, or by any
political subdivision or taxing authority therein), or shall impose, modify or
deem applicable any reserve requirement, special deposit, insurance charge
(including FDIC insurance on Eurodollar deposits) or similar requirement against
assets of, deposits with or for the account of, or credit extended by, such
Participant or shall impose on such Participant or the London Interbank Market
any other condition affecting this Agreement or LIBOR Based Rate Loans made by
such Participant, and the result of any of the foregoing shall be to increase
the cost to such Participant of making or maintaining its LIBOR Based Rate Loan
or to reduce the amount of any sum received or receivable by such Participant
hereunder (whether of principal, interest or otherwise) in respect thereof by an
amount deemed by such Participant to be material, then the Company will pay to
such Participant such additional amount or amounts as will compensate such
Participant for such additional costs of reduction.
(b) If either:
(1) The introduction of, or any change in, or in the interpretation
of, any United States or foreign law, rule or regulation; or
(2) Compliance with any directive, guidelines or request from any
central bank or other United States or foreign governmental authority (whether
or not having the force of law) promulgated or made after the date hereof (but
excluding, however, any law, rule, regulation, interpretation, directive,
guideline or request contemplated by or resulting from the report dated July
1988 entitled "International Convergence of Capital Measurement and Capital
Standards" issued by the Basle Committee on Banking Regulations and Supervisory
Practices), affects or would affect the amount of capital required or expected
to be maintained by any Participant (or any lending office of such Participant)
or any corporation directly or indirectly owning or controlling any Participant
(or any lending office of such Participant) based upon the existence of this
Agreement, and such Participant shall have determined that such introduction,
change or compliance has or would have the effect of reducing the rate of return
on such Participant's capital or on the capital of such owning or controlling
corporation as a consequence of its obligations hereunder (including its
Commitment) to a level below that which such Participant or such owning or
controlling corporation could have achieved but for such introduction, change or
compliance (after taking into account that Participant's policies or the
policies of such owning or controlling corporation, as the case may be,
regarding capital adequacy) by an amount deemed by such Participant (in its sole
discretion) to be material, then, from time to time, the Company shall pay to
such Participant such additional amount or amounts as will compensate such
Participant for such reduction attributable to making, funding and maintaining
its Commitment and Loans hereunder.
(c) A certificate of each Participant setting forth such amount or amounts
as shall be necessary to compensate such Participant as specified in paragraph
(a) or (b) above, as the case may be, shall be delivered to the Participant and
the Company and shall be conclusive absent manifest error. The Company shall,
subject to the provisions of Section 1.6(d) herein, pay each Participant the
amount shown as due on any such certificate within ten (10) days after its
receipt of such certificate.
(d) Each Participant claiming any amount is due pursuant to the provisions
of paragraphs (a) or (b) of this Section 1.6 shall (i) give the Company prompt
written notice upon the earlier to occur of (A) any change in, or the
promulgation of, any law, rule, regulation, interpretation, guideline, or
request described in paragraph (a) or (b) above (a "Regulatory Change in
Circumstances"), or (B) the receipt by such Participant of a notice of, or
information respecting, any Regulatory Change in Circumstances, in each case,
describing the Regulatory Change in Circumstances and the estimated costs or
charges payable by the Company under this Section 1.6 as a result thereof, and
(ii) cooperate fully with the Company and use its best efforts to mitigate the
costs and/or charges to the Company of any such Regulatory Change in
Circumstances, including, without limitation, permitting the Company, in its
sole discretion, either to compensate such Participant as provided in paragraph
(d) or to convert immediately (or at any time thereafter) any LIBOR Based Rate
Loan to a Prime Rate Loan and compensate such Participant for the full amount of
any penalties, charges, or losses resulting from such Regulatory Change in
Circumstances and such conversion.
Notwithstanding anything herein to the contrary, no amount shall be
payable by reason of any Regulatory Change in Circumstances pursuant to the
provisions of this Section 1.6 with respect to any period prior to the date the
Company is notified of such Regulatory Change in Circumstances pursuant to this
paragraph (d).
(e) Failure on the part of any Participant to give the notice specified in
subsection (d) above or to demand compensation for any increased costs or
reduction in amount received or receivable or reduction in return on capital
with respect to any Eurodollar Interest Period shall not constitute a waiver of
such Participant's rights to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital in
such Eurodollar Interest Period. The protection of this Section 1.6 shall be
available to each Participant regardless of any possible contention of
invalidity or inapplicability of the law, regulation or condition that shall
have been imposed.
ARTICLE II
PAYMENTS
SECTION 2.1. Repayment Generally. The Company may, without terminating or
reducing the Commitment, repay the amounts advanced at the time and in the
manner provided in the Series J Note.
SECTION 2.2. Required Prepayment. At the time of each reduction in the
Commitment pursuant to the provisions of Section 1.5 herein, the Company shall,
if permissible under the terms of the Series J Note, prepay the Series J Note in
the amount, if any, required to reduce the aggregate outstanding principal
thereof to an amount not in excess of the Commitment as so reduced.
SECTION 2.3. Reinstatement of Commitment. Except as provided in Section
1.5 herein, all optional prepayments made pursuant to Section 2.1 hereof prior
to June 30, 1997, shall automatically reinstate the Commitment hereunder in the
amount of such optional prepayments subject to the terms of the revolving credit
hereinabove provided.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANT OF
THE COMPANY AND LENDER
SECTION 3.1. Company Representations and Warranties. The Company
represents and warrants that, as of this date:
(a) Business and Properties; Annual Reports. The Company has heretofore
furnished the Lender with copies of its annual report on Form 10-K for its
fiscal year ended June 30, 1993, as filed with the United States Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended,
and the exhibits filed therewith (the "10-K Report"), and of its annual report
to stockholders for such fiscal year (the "Stockholders' Report" and,
collectively with the 10-K Report, the "Reports"). The Reports fairly describe
the businesses in which the Company and its Subsidiaries are engaged, and the
other matters purported to be described therein.
(b) Financial Condition.
(i) Financial Statements. The Company has heretofore furnished to
the Lender (x) a balance sheet of the Company as at June 30, 1993, and the
related statements of operations, stockholder-members' equity and changes
in financial position or statements of cash flow for the five fiscal years
then ended, all reported on by independent public accountants (the "Audited
Financial Statements"), and (y) unaudited balance sheets of the Company as
of March 31, 1994, and the related unaudited statements of operations,
stockholder-members' equity, and statements of cash flow for the
three-month period then ended (the "Unaudited Financial Statements" and,
collectively with the Audited Financial Statements, the "Financial
Statements"). The Financial Statements, including the related notes, have
been prepared in accordance with generally accepted accounting principles,
consistently applied, and present fairly the financial position of the
Company as at the respective dates of said statements and the results of
their operations for the respective periods covered thereby, except that
the Unaudited Financial Statements are subject to normal year-end audit
adjustments and lack notes thereto.
(ii) No Material Change. Since March 31, 1994, there have been no
material adverse changes in the condition, financial or otherwise, of the
Company and its Subsidiaries, other than changes in the ordinary course of
business, as anticipated in the Reports and Financial Statements, none of
which, individually or in the aggregate, have been materially adverse to
the Company and its Subsidiaries, considered as a consolidated group;
provided, however, the Company has indicated to Lender its current
intention (a) to dispose of a minimum of 51%, up to a maximum of 100%, of
the common stock of Newsprint South, Inc., such disposition to occur on
June 30, 1994, or as soon as possible thereafter, and (b) to cease
operating as a cooperative, as more particularly described in the Proxy
Statement/Prospectus dated May 27, 1994, a copy of which has heretofore
been provided to Lender.
(iii) Properties; Liens. The Company and its Subsidiaries are the
owners of the assets reflected on the audited balance sheet as of June 30,
1993, included in the Financial Statements, except for inventory sold,
accounts receivable collected, patronage refunds paid, capital equity
credits paid to shareholders and other assets replaced, retired or
otherwise disposed of since such date in the ordinary course of business;
provided, however, the Company has indicated to Lender its current
intention to dispose of a minimum of 51%, up to a maximum of 100%, of the
common stock of Newsprint South, Inc., such disposition to occur on
June 30, 1994, or as soon as possible thereafter. The Trust Estate is, and
at the Closing Date will be, free from any Liens other than the Lien of the
Indenture (in the case of assets owned by the Company) and other Liens of
the type described in Section 7.01 of the Indenture ("Permitted Liens"),
subject only to such encumbrances on or imperfections of its title thereto
as do not and would not, either with respect to any single such interest or
all such interests in the aggregate, materially detract from the value of
such assets, either individually or in the aggregate, to the Company and
its Restricted Subsidiaries. The Lien of the Indenture is, and upon the
execution, filing and recording of the Fourteenth Supplemental Indenture,
the Lien of the Indenture, as supplemented, will be, a valid and perfected
mortgage or security interest upon the Company's interest in the real
property and mineral interests located in Yazoo and Jackson Counties,
Mississippi, and in Lea and Eddy Counties, New Mexico, and described in
Annex A and Annex B to the original Indenture and, to the best of the
Company's knowledge, upon the other assets required by the Indenture to
form part of the Trust Estate, and will secure the Series J Notes equally
and ratably with the other Notes secured by the Indenture. The Trust
Estate constitutes substantially all of the real and personal assets of the
Company, excepting only (I) the stock of and the Company's interests in the
Unrestricted Subsidiaries, and (II) stock in the Bank owned by the Company,
and (III) properties and interests specifically excluded by the Indenture.
(iv) Leases. The Company and each of its Restricted Subsidiaries has
quiet enjoyment or peaceful and undisturbed possession under all leases,
subleases, easements or licenses to which it is party and pursuant to which
it holds or uses real property or tangible personal property located in
Yazoo and Jackson Counties, Mississippi or in Lea or Eddy Counties, New
Mexico, and, to the best of its knowledge, all other jurisdictions in which
it holds or uses real property or tangible personal property, except where
the failure to have such quiet enjoyment or peaceful and undisturbed
possession would not have a material adverse effect on the Company and its
Restricted Subsidiaries as a consolidated group, and none of which contains
any unusual or burdensome provision which will materially and adversely
affect the operations of the Company and its Restricted Subsidiaries, taken
as a whole.
(v) Indebtedness. Parts I and II of SCHEDULE A hereto list each
item of Short-Term Borrowing and Funded Debt to which the Company or any of
its Restricted Subsidiaries is subject, and all such Short-Term Borrowing
and Funded Debt is Indebtedness which the obligor is permitted to incur and
to which it is permitted to be subject, without any breach of the
Indenture, and Part III of SCHEDULE A lists all instruments providing for
or governing Short-Term Borrowing or Funded Debt of the Company or any
Restricted Subsidiary. Complete and correct copies of the instruments and
agreements referred to in Part III of SCHEDULE A have been delivered to
counsel to the Lender. All restrictions contained in such instruments and
agreements on the incurrence by the Company of the Indebtedness represented
by the Series J Note will have been waived, or the conditions to such
incurrence will have been satisfied, not later than the date of the initial
closing.
(c) Subsidiaries and Affiliates. The Company has no Subsidiaries or
affiliates, other than as listed on SCHEDULE B hereto.
(d) Restricted Subsidiaries. The only Restricted Subsidiaries under the
Indenture are Mississippi Phosphates Corporation, Mississippi Potash, Inc.,
Mississippi Nitrogen, Inc., and the Company's 50% equity interest in Triad
Chemical, a joint venture in which the remaining 50% equity interest is held by
First Mississippi Corporation.
(e) Due Corporate Organization and Authority. The Company (i) is a
corporation duly organized, validly existing and in good standing under the laws
of Mississippi, (ii) has all requisite corporate power and authority to own and
operate its properties and to conduct its business as now conducted, and has all
necessary licenses, permits, consents or approvals from or by, and has made all
necessary filings with, all governmental agencies or instrumentalities having
jurisdiction over its business or properties, to the extent requisite for the
ownership and operation of its properties and the conduct of its business, and
(iii) has duly qualified and is authorized to do business and is in good
standing as a foreign corporation in Alabama, Arkansas, Florida, Georgia,
Illinois, Kentucky, Louisiana, Missouri, New Mexico, Tennessee and Texas, which
states, in the opinion of the Company, comprise each and every jurisdiction
wherein its ownership or leasing of its properties or the conduct of its
business makes such qualification necessary.
(f) Judgments; Pending Litigation. Except as disclosed in SCHEDULE C
hereto, there are no judgments currently outstanding and unsatisfied against the
Company or any Subsidiary, and no action, proceeding or investigation is pending
or threatened before any court or administrative officer or agency, and to the
best of the Company's knowledge no basis exists for any such action, preceding
or investigation, which, either in any case or in the aggregate, might have a
material adverse effect on the consolidated financial condition of the Company
and its Subsidiaries, or which might call into question the validity of the
Series J Note, the other Notes currently outstanding, the Indenture, this
Agreement or any action taken or to be taken by the Company pursuant to or in
connection with this Agreement or the Indenture. The Company does not consider
that the matters listed on SCHEDULE C are likely to have a material adverse
effect on the consolidated financial condition of the Company and its
Subsidiaries.
(g) Taxes. All tax returns required to be filed by the Company in any
jurisdiction have been filed; all taxes, assessments, fees, and other
governmental charges or levies (other than those currently payable without
penalty) upon the Company or upon any of its assets, income or franchises, which
are due and payable have been paid, other than those being contested in good
faith and for which adequate provision has been made. The Internal Revenue
Service has audited the Company's Federal income tax returns for all fiscal
years through the fiscal year ended June 30, 1987, and, except as disclosed in
SCHEDULE C hereto, has not challenged the Company's calculation of its tax
liability for such years, other than challenges which have been settled, are not
material in amount, or are reflected in the 10-K Report. The charges, accruals,
and reserves on the Company's books in respect of Federal, state and local taxes
are adequate for payment of all such taxes in respect of current periods, and
the Company knows of no material additional assessments for any year for which
an audit has not yet been completed (or the statute of limitations has not yet
expired), which are not covered by such reserves.
(h) No Conflict. Neither the execution or delivery of this Agreement, the
Series J Note, the Fourteenth Supplemental Indenture or any instrument
contemplated thereby, nor compliance with the terms and provisions hereof or
thereof, nor the consummation of the transactions contemplated hereby or
thereby, will conflict with, violate or result in a breach of or default under,
or result in the creation or imposition of any Lien on any of the Company's
assets pursuant to, the terms of any provision of any contract or agreement, any
charter, by-law or other corporate restriction, any law, ordinance or rule or
any order, certificate, license, regulation or demand of any state, territory or
political subdivision thereof or any court, agency or other tribunal to which
the Company or any of its assets are subject. The Company is not in material
default under any of the foregoing.
(i) Compliance with Laws, Regulations, etc. To the best of the Company's
knowledge, neither it nor any of its Subsidiaries is in violation of any laws or
governmental rules or regulations applicable to its business or properties
(excluding any laws or governmental rules or regulations pertaining to
Environmental Matters, all of which are referenced in Article VI) or any
applicable order, writ, injunction, judgment or decree of any court, or any
order of any governmental commission, bureau or other administrative agency, the
violation of which would materially adversely affect the business, affairs,
properties, operations or condition of the Company and its Subsidiaries, taken
as a consolidated group.
(j) ERISA.
(i) Employee Benefit Plans . Each employee benefit plan which the
Company or any ERISA affiliate has established or maintained or to which
the Company or any ERISA affiliate is required to contribute (collectively,
the "Plans") is in compliance in all material respects with all applicable
provisions of the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations thereunder (collectively and as from
time to time in effect, "ERISA"), and of the Internal Revenue Code of 1986
and the rules and regulations thereunder (collectively and as from time to
time in effect, the "Code"). No Plan which is a defined benefit plan has
been terminated since 1974 nor are there any proceedings pending for the
termination of any such Plan. There does not exist any event or condition
which would permit the institution of proceedings to terminate any Plan
pursuant to Section 4042 of ERISA. The current value of the benefit
liabilities of any Plan which is a defined benefit plan does not exceed the
current value of such Plan's assets allocable to such benefit liabilities
by any material amount. There has been no failure to meet the minimum
funding standard (whether or not waived) with respect to any Plan subject
to Section 412 of the Code or Section 302 of ERISA, and neither the
Company, any Subsidiary nor any ERISA affiliate of the Company or any
Subsidiary, has failed to make any quarterly installment payment to a Plan
required under Section 302(e) of ERISA or Section 412(m) of the Code.
Except as set forth on SCHEDULE D hereto, neither the Company, any
Subsidiary nor any ERISA affiliate of the Company or any Subsidiary has
established or maintained any Plan which is an employee pension benefit
plan. Neither the Company nor any ERISA affiliate has at any time
established or maintained, or been subject to a requirement that it make a
contribution to, a multiemployer plan. Neither the Company, nor any
Subsidiary nor any ERISA affiliate of any of them will, after issuing the
Series J Note at the initial closing, either (i) have incurred or become
liable for any tax assessed by the Internal Revenue Service for any alleged
violation of Section 4975 of the Code or any civil penalty imposed by the
Department of Labor for any alleged violation of Section 406 of the Code,
or (ii) have caused or permitted to occur any "prohibited transaction"
within the meaning of such Section 4975 of the Code or Section 406 of ERISA
with respect to any Plan or any Multiemployment Plan.
(ii) Definition of Certain Terms. As used in this Section 3.1(j),
the terms "defined benefit plan," "employee benefit plan," "employee
pension benefit plan" and multiemployment plan" shall have the respective
meanings assigned to such terms in Section 3 of ERISA, the term "benefit
liabilities" shall have the meaning assigned to such term in Section
4001(a) of ERISA, and the term "reportable event" shall mean a reportable
event described in Section 4043(b) of ERISA as to which the 30-day notice
requirement has not been waived under regulations of the PBGC.
(k) Full Disclosure. Neither this Agreement nor any financial statements
furnished by the Company to the Lender contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which they were made and
when considered as a whole, not misleading. There is no fact known to the
Company which the Company has not disclosed to the Lender in writing which
materially and adversely affects the business, operations, assets, or condition,
financial or otherwise, of the Company.
(l) Brokerage and Finder's Fees and Commissions. The Company will
indemnify the Lender and hold the Lender harmless in respect of any commissions,
fees, judgments or expenses of any nature and kind for which the Lender may
become liable to pay by reason of any claims by or on behalf of brokers, finders
or agents, based on any engagement by the Company of such broker, finder or
agent in connection with the transactions contemplated by this Agreement or any
litigation or similar proceeding arising from such claims.
(m) Private Sale. The Company hereby represents that neither it nor any
person authorized or employed by the Company as an agent, broker, dealer or
otherwise in connection with the offering of the Series J Note or any similar
security of the Company has, either directly or indirectly, sold or offered for
sale or disposed of, or attempted or offered to sell or dispose of, the Series J
Note or any similar securities of the Company, to, or solicited offers to buy
any thereof from, or otherwise approached or negotiated with in respect
thereto, any person or persons, other than the Lender, nor will the Company
hereafter take any such action with respect to the Series J Note or any similar
securities of the Company which would adversely affect the exemption of the sale
of the Series J Note from the registration provisions of the Securities Act of
1933, as amended.
(n) Margin Rules; Use of Proceeds. The net proceeds of the sale of the
Series J Note will be used to finance costs associated with the termination of
the Company's obligations with respect to Newsprint South, Inc., to finance the
redemption and/or purchase of various stock series in association with the
Company's ceasing to operate as a nonexempt cooperative in accordance with
applicable provisions of the Code, and for other general corporate purposes in
the Company's discretion. Neither the Company nor any of its Restricted
Subsidiaries owns any "margin stock" within the meaning of Regulation G (12
C.F.R. part 207) of the Board of Governors of the Federal Reserve System, or has
any present intention of acquiring any "margin stock" or of using any of the
proceeds of the sale of the Series J Note, directly or indirectly, for the
purpose of purchasing or "carrying" any "margin stock" or reducing or retiring
any indebtedness which was originally incurred to purchase or "carry" any
margin stock" or for any other purpose which might cause the transaction
contemplated hereby to constitute a "purpose credit" within the meaning of said
Regulation G, or cause this Agreement, the Fourteenth Supplemental Indenture or
the Series J Note to violate said Regulation G, Regulation T or Regulation X of
said Board of Governors (12 C.F.R., Parts 220 and 224), or any other regulation
of the said Board of Governors, as now in effect, or Section 7 of the Securities
Exchange Act of 1934, as now in effect (collectively, the "Margin Rules").
(o) Inapplicability of Specified Statutes. The Company is not, and none
of its Subsidiaries is, a "holding company" or an "affiliate" of a "holding
company," as such terms are defined in the Public Utility Holding Company Act of
1935, as amended, or an "investment company" or a company controlled by or
acting on behalf of an "investment company," as defined in the Investment
Company Act of 1940, as amended, or a "carrier" or a person which is in control
of two or more "carriers," as defined in Sections 10102 or 11301 of Title 49,
U.S.C. Neither this Agreement nor any transaction contemplated hereby, nor the
Company's use of the proceeds of the Series J Note, is or will be in violation
of any statute, regulation or executive order restricting loans to or
investments in foreign countries or entities doing business therein.
(p) Governmental Consent, etc. Neither the nature of the Company or of
any of its Subsidiaries, nor any of its or their respective businesses or
properties, nor any relationship between the Company or any of its Subsidiaries
and any other Person, nor any circumstance in connection with the offer, issue,
sale or delivery of the Series J Note is such as to require any consent,
approval or other action by or any notice to or filing with any court or
administrative or governmental body in connection with the execution and
delivery of this Agreement or the Fourteenth Supplemental Indenture, the offer,
issue, sale or delivery of the Series J Note or fulfillment of or compliance
with the terms and provisions hereof or of the Fourteenth Supplemental Indenture
or the Series J Note. The Company is not required to obtain the authorization
for or consent to its execution and delivery of this Agreement or the Fourteenth
Supplemental Indenture, the offer, issue, sale, execution or delivery of the
Series J Note, or the compliance with the terms and provisions hereof or of the
Fourteenth Supplemental Indenture or the Series J Note from any governmental
agency or other Person, other than its officers or directors, acting as such,
and the Persons listed in SCHEDULE E hereto all of which have been, or prior to
the initial closing will be, obtained.
SECTION 3.2. Lender Representations and Warranties. The Lender hereby
represents and warrants as follows:
(a) It has sufficient knowledge and experience in financial and business
matters generally to be able to evaluate the risks and merits of the investment
represented by the purchase of the Series J Note and it is able to bear such
risks, including without limitation, the risk of loss of such investment.
(b) No offering statement, prospectus or offering circular containing
information with respect to the Series J Note, the purposes for which the
Series J Note is being issued, or the Company has been or will be prepared, and
it has made its own inquiry and analysis with respect to the Series J Note and
the security therefor, the Company and its Subsidiaries and other material
factors affecting the security and payment of the Series J Note.
(c) It has either been supplied with or has had access to all information,
including financial statements and other financial information, of the Company
and its Subsidiaries to which a reasonable investor would attach significance in
making investment decisions, and it has had the opportunity to ask questions and
receive answers from knowledgeable individuals concerning the Company and its
Subsidiaries, the Series J Note and the security therefor, so that as a
reasonable investor, it has been able to make its decision to purchase the
Series J Note.
(d) It acknowledges that the Series J Note (a) is not being registered
under the Securities Act of 1933 and is not being registered or otherwise
qualified for sale under the "Blue Sky" laws and regulations of any state, (b)
will not be listed on any stock or other securities exchange, (c) will carry no
rating from any rating service, and (d) will not be readily marketable.
(e) It is purchasing the Series J Note for its own account for investment
and with no present intention of distributing or reselling the Series J Note or
any part thereof, but subject, nevertheless, to the disposition of the Series J
Note being at all times within its control, subject to the limitations set forth
in Section 10.9 of this Agreement. The Lender agrees that the Series J Note
will not be sold by it in contravention of the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended, or in contravention
of the securities laws of any state or of any other federal or state law
respecting the Series J Note.
SECTION 3.3. Covenant of the Company. The Company will at all times
maintain a ratio of current assets to current liabilities, each calculated in
accordance with Generally Accepted Accounting Principles, of not less than 1.30
to 1.00.
ARTICLE IV
EVENTS OF DEFAULT
SECTION 4.1. Defaults. The occurrence of the following shall constitute a
default (herein sometimes called a "default") by the Company hereunder:
(a) any representation or warranty made hereunder by the Company shall be
false or incorrect in any material respect as of the date hereof, unless such
falsity or incorrectness is no longer material or any adverse impact thereof has
been cured to the satisfaction of the Lender;
(b) the Company's failure to perform or observe any covenant or agreement
contained in Article I or Article II herein, or the Company's failure to perform
or observe any other covenant or agreement contained herein on its part to be
performed or observed if such failure shall remain unremedied for ten (10) days
after written notice thereof shall have been given to the Company by the Lender;
and
(c) the occurrence of an Event of Default under the Indenture.
SECTION 4.2. Remedies. If any default occurs and is continuing, then upon
the election of the Lender:
(a) the Commitment of the Lender to extend credit to the Company shall
immediately terminate; and
(b) all loans outstanding hereunder and any note evidencing the same shall
immediately become due and payable upon demand without presentment, protest or
other notice of any kind, all of which are hereby expressly waived.
ARTICLE V
INFORMATION TO BE FURNISHED SERIES J NOTEHOLDER
SECTION 5.1. Financial Statements. The Company will deliver the following
to each Participant, so long as such Participant holds any interest in the
Series J Note, from the date of this Agreement:
(a) as soon as practicable after the end of each quarterly fiscal period
in each fiscal year of the Company, and in any event within 45 days thereafter,
duplicate copies of:
(i) a consolidated and consolidating balance sheet of the Company
and its Subsidiaries as at the end of such quarter, and
(ii) consolidated and consolidating statements of operations,
stockholder-members' equity and statements of cash flow of the Company and
its Subsidiaries and (in the case of the second, third and fourth quarters)
for the portion of the fiscal year ending at the end of such quarter,
setting forth in each case in comparative form the figures for the corresponding
periods for the prior year, all in reasonable detail and certified as complete
and correct, subject to changes resulting from normal year-end adjustments, by
the principal financial officer or the Treasurer of the Company;
(b) as soon as practicable after the end of each fiscal year of the
Company and in any event within 90 days thereafter, duplicate copies of:
(i) a consolidated balance sheet of the Company and its Subsidiaries
as at the end of such year, and
(ii) consolidated statements of income, stockholder-members equity
and statements of cash flow of the Company and its Subsidiaries for such
year,
setting forth in each case in comparative form the corresponding figures for the
prior year, all in reasonable detail and accompanied by the report thereon
(except for such consolidating statements) of a firm of independent public
accountants, as provided in Section 5.2 hereof;
(c) promptly upon their becoming available, one copy of each financial
statement, report, notice or proxy statement sent by the Company to its
shareholders generally or by any Restricted Subsidiary to its shareholders
(other than the Company) generally, and of each regular or periodic report and
any registration statement or prospectus filed by the Company or any Restricted
Subsidiary with any securities exchange or with the Securities and Exchange
Commission or any successor agency;
(d) upon request from the Lender or any other Participant, copies of each
annual report required to be filed pursuant to ERISA in connection with each
Plan for any Plan year promptly after the filing thereof, including (i) a
statement of the assets and liabilities of such Plan as of the end of such Plan
year and statements of changes in fund balance and in financial position, or a
statement of changes in net assets available for Plan benefits for such Plan
year, certified by a firm of independent public accountants of recognized
national standing and (ii) an actuarial statement of such Plan applicable to
such Plan year, certified by an enrolled actuary of recognized standing;
(e) without duplication of any other materials required by this Section
5.1 to be furnished to the holders of any interest Series J Note, copies of all
reports and financial statements furnished to the Trustee pursuant to Section
5.06 of the Indenture and copies of any financial statements or reports
furnished to the holders of any other Series of Notes; and
(f) with reasonable promptness, such other data and information as to the
business and assets of the Company and of its Restricted Subsidiaries as from
time to time may be reasonably requested by the Lender or any other Participant.
Recipients of any financial statements or reports delivered by the Company
pursuant to this Section 5.1 may furnish such statements and reports required to
be furnished to any regulatory authority having jurisdiction over them. The
Company agrees to furnish to the Participants additional copies of the materials
referred to in this Section 5.1 upon request.
SECTION 5.2. Auditors. The Company shall employ a firm of independent
public accountants of good and recognized national standing who will examine the
financial statements referred to in Section 5.1(b) hereof in accordance with
generally accepted auditing standards and accordingly will include in such
examination such tests of the accounting records and such other procedures as
they consider necessary in the circumstances. Such financial statements shall
present fairly the financial position of the Company and its Subsidiaries at the
end of, and the results of operations and statements of cash flow for the
periods specified in, Section 5.1(b) hereof in accordance with generally
accepted accounting principles. The opinion to be expressed by such firm of
independent public accountants with respect to such financial statements shall
be without qualification, except that such opinion (i) may contain
qualifications (a) resulting from changes in accounting principles and methods
agreed to by such firm of independent public accountants and (b) commonly
referred to as "subject to" qualifications relating to matters the probable
effect of which is not readily determinable and the outcome of which is
dependent upon decisions of parties other than the Company, and (ii) will not
cover consolidating financial statements.
SECTION 5.3. Officers' Certificates. Each set of financial statements
delivered to the Lender or any other Participants pursuant to Section 5.1(a) or
(b) hereof shall be accompanied by a certificate of the Chairman of the Board,
the President or a Vice President and (without duplication) the chief financial
officer of the Company, setting forth (i) in the case of statements delivered
pursuant to Section 5.1(a) or (b) hereof, the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements (a) of Sections 7.03 and 7.04 of the Indenture,
as incorporated in Article Seven-C thereof, during the most recently completed
fiscal quarter covered by the income statement then being furnished and (b) of
Section 7.08 of the Indenture, as incorporated in Article Seven-C thereof, on
the last day of the period covered by the income statement then being furnished,
(ii) in the case of statements delivered pursuant to Section 5.1(b) hereof, the
information (including detailed calculations) required in order to establish
whether the Company was in compliance with the requirements of Sections 7.05 and
7.07 of the Indenture, as incorporated in Article Seven-C thereof, during the
period covered by the income statement then being furnished and a certification
as to insurance in force at the close of the preceding fiscal year meeting the
requirements of Sections 5.03(a)(2) and 5.03(b) of the Indenture, and
(iii) whether to the knowledge of such certifying officers, there exists on the
date of such certificate any condition or event which then constitutes, or which
after notice or lapse of time or both would constitute an Event of Default, and,
if any such condition or event then exists, specifying the nature and period of
existence thereof and the action being taken and proposed to be taken with
respect thereto.
SECTION 5.4. Accountants' Certificate. The report of the firm of
independent public accountants covering the financial statements delivered
pursuant to Section 5.1(b) hereof shall state that in making their audit of such
financial statement, they have obtained no knowledge of any condition or event
which then constitutes, or which after notice or lapse of time or both would
constitute, an Event of Default or, if any such condition or event then exists,
specifying the nature and period of existence thereof.
SECTION 5.5. Notice of Reportable Events. The Company agrees to notify
the Lender and each other Participant immediately of any fact, including but not
limited to any Reportable Event, arising in connection with any Plan which might
constitute grounds for the termination thereof by the PBGC or for the
appointment by the appropriate United States district court of a trustee to
administer the Plan.
SECTION 5.6. Inspection. The Company will permit the Lender and each
Participant, so long as such party holds any interest in the Series J Note, at
the expense of the Participant requesting the same, to visit and inspect any of
the properties of the Company or any Restricted Subsidiary, to examine all their
books of account, records, reports and other papers, to make copies and extracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective officers and, in the presence of a representative of the
Company, the Company's independent public accountants, all at such reasonable
times and as often as may be reasonably requested.
ARTICLE VI
ENVIRONMENTAL MATTERS
SECTION 6.1. Preamble. The parties have agreed upon the following
provisions set forth in this Article VI, as the exclusive provisions of this
Agreement, and as the exclusive remedies of the parties under this Agreement,
with respect to Environmental Laws (as herein defined). No representation,
warranty or covenant under this Agreement other than those contained in this
Article VI (except closing requirements contained in Article VIII,
Section 8.1(c)) shall apply to or be construed to include Environmental Laws.
SECTION 6.2. Company's Environmental Representations, Warranties and
Covenants. Other than as set forth in the Company's Annual Report on Form 10-K
for the fiscal year ending June 30, 1993, and except as described in SCHEDULE F
to this Agreement, the Company represents, warrants and covenants to Lender as
follows:
(a) The Company and each Restricted Subsidiary is in compliance in all
material respects with all Environmental Laws. Neither the Company nor any
Restricted Subsidiary has received notice from any third party of any existing
violation or alleged violation of any Environmental Law.
(b) There is no pending, or, to the best of the Company's knowledge,
threatened litigation or proceeding in law or in equity, by any commission,
agency or other administrative authority or by any third party with respect to
any violation or any alleged violation by the Company or any Restricted
Subsidiary of Environmental Laws.
(c) The Company covenants that it and each Restricted Subsidiary will
comply in all material respects with all Environmental Laws such that no
Material Adverse Effect results. The Company shall not be deemed to be in
default hereunder with respect to such covenant on account of any alleged or
actual violation of any Environmental Law so long as the Company is in good
faith contesting such claim; provided, however, in the event of an occurrence of
a Material Adverse Effect, the Lender shall not be obligated to make further
advances hereunder.
SECTION 6.3. Required Notices.
(a) The Company shall notify Lender promptly of the occurrence of any of
the following: (i) receipt of notice from any governmental authority regarding
an alleged violation of an Environmental Law relating to the operation of the
Company or any Restricted Subsidiary; (ii) commencement of any judicial or
administrative proceedings regarding an alleged violation of any Environmental
Law by or against or otherwise affecting the Company or any Restricted
Subsidiary; and (iii) receipt of written notice from a federal, state, foreign
or local governmental agency or private party alleging that the Company is
liable or responsible for costs associated with the response to cleanup,
stabilization or neutralization of any environmental damage.
(b) Lender shall notify the Company in writing of its determination that a
Material Adverse Effect under Section 6.2(c) has occurred. Such notice shall be
sent contemporaneously with Lender's termination of its obligation to continue
making advances hereunder, but the Company shall have thirty (30) days in which
to respond to the Lender before Lender may declare an event of default under
Article IV, Section 4.1.
SECTION 6.4. Inspection of Records and Permits. The Company shall
maintain all records and permits in force and shall provide Lender, or an
accounting firm or environmental analyst employed by the Lender acting as its
agent, access to such records and permits and the right to make copies thereof
during the normal business hours of the Company.
SECTION 6.5. Definitions.
(a) The term "Environmental Law(s)" means federal, state, or local laws,
statutes, regulations, or rules, any decree, order, award, agreement, release,
or notice from any federal, state, or local court, agency, government or
governmental authority or any permits or licenses from any courts, agencies or
other governmental authorities or any other party, including governmental
standards promulgated thereunder or with respect thereto, which relate to the
protection of the environment.
(b) The term "Material Adverse Effect" means a change or effect which, in
the reasonable determination of the Lender communicated to the Company in
writing, constitutes a material adverse change in, or a material adverse effect
upon, any of the financial condition, operations or business of the Company and
its Restricted Subsidiaries taken as a whole, which (i) results from an actual
violation of any Environmental Law, and (ii) which costs $25,000,000 or more to
remediate, excluding expenditures for the correction of violations of
Environmental Laws which can be capitalized on the balance sheet of the Company
and its Restricted Subsidiaries in accordance with Generally Accepted Accounting
Principles.
ARTICLE VII
WAIVERS
SECTION 7.1. Waivers. No delay in the exercise of, or omission of the
Lender to exercise, any right or power hereunder or under the Series J Note
shall impair such right or power or be construed to be a waiver of any default
or an acquiescence therein, and any single or partial exercise of any such
right or power shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver whatsoever shall be valid unless in
writing signed by the Lender, and then only to the extent in such writing
specifically set forth. All remedies herein or by law afforded shall be
cumulative and all shall be available to the Lender until it has been paid in
full in lawful money.
ARTICLE VIII
CLOSING REQUIREMENTS
SECTION 8.1. Closing Conditions - Initial Loan. The Lender shall not be
required to make the initial loan contemplated herein unless the Lender has been
provided with:
(a) Opinion of Counsel for the Company. An opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Esq., General Counsel of the Company, dated as of June 17, 1994 ("Closing
Date"), addressed to the Lender, substantially in the form of SCHEDULE G hereto,
and containing such further opinions, in form and substance satisfactory to the
Lender, as to such other legal matters incident to the transactions contemplated
by this Agreement as the Lender may reasonably request. In giving the foregoing
opinion, counsel for the Company may rely, to the extent he considers
appropriate, on the opinions satisfactory in form and substance to the Lender,
of local counsel satisfactory to the Lender as to matters governed by the law of
any State other than Mississippi; provided, that each opinion so relied upon
states that it may be relied upon by the Lender, and a copy thereof is delivered
to the Lender.
(b) Title Opinions and Title Reports. With respect to the real property
in Yazoo and Jackson Counties, Mississippi, and Lea and Eddy Counties, New
Mexico, constituting part of the Trust Estate:
(i) title opinions of Messrs. ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, of Yazoo
County, Mississippi (in the case of property in Yazoo County, Mississippi),
Messrs. Megehee, Pitcher, ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, of Pascagoula, Mississippi
(in the case of property in ▇▇▇▇▇▇▇ County, Mississippi), and of Messrs.
McCormick, Forbes, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, of Carlsbad, New Mexico (in the case
of property in Lea and Eddy Counties, New Mexico) or of other local counsel
reasonably acceptable to you, to the effect that the Company or a
Restricted Subsidiary, as the case may be, has good and marketable title to
all such property as of the Closing Date, subject to no Liens of record,
other than the Lien of the Indenture and Permitted Liens; and
(ii) copies of title reports covering the period from August 6, 1992,
to the Closing Date, supporting such opinions.
In addition, with respect to other property of the Company and of
Restricted Subsidiaries situated (or considered to have a situs) in Yazoo and
Jackson Counties, Mississippi, and Lea and Eddy Counties, New Mexico,
constituting part of the Trust Estate as to which the filing of UCC financing
statements is the correct method of perfection, the Lender shall have received
search reports of such counsel, or a search firm reasonably acceptable to the
Lender, as to searches of the UCC records in the offices of the Secretary of
State of the State of Mississippi, the Chancery Clerk of Yazoo and Jackson
Counties, Mississippi, the Secretary of State of the State of New Mexico, and
the County Clerks of Lea and Eddy Counties, New Mexico, covering the period from
August 6, 1992, to such date on or prior to the Closing Date as is satisfactory
to Lender, disclosing no liens of record against any such properties, other than
the Lien of the Indenture and Permitted Liens.
(c) Representations True. The representations and warranties of the
Company contained herein shall be true and correct in all material respects on
and as of the Closing Date with the same effect as though such representations
had been made on and as of such date, except as affected by the transactions
herein provided for and except for changes in the ordinary course of business
since the date hereof.
(d) No Event of Default. No event shall have occurred which (assuming
that the Series J Note had been issued and outstanding on and at all times after
the date hereof) would constitute an Event of Default, as defined in the
Indenture or this Agreement, or with notice or lapse of time or both would
become such an Event of Default.
(e) Fourteenth Supplemental Indenture. The Fourteenth Supplemental
Indenture shall have been duly authorized, executed and delivered by the Company
and the Trustee in substantially the form of SCHEDULE H hereto, and duly filed
and recorded in the offices of the Chancery Clerk of ▇▇▇▇▇▇▇ and Yazoo Counties,
Mississippi, and the offices of the County Clerks of Lea and Eddy Counties, New
Mexico.
(f) Trustee's Certificate. The Trustee shall deliver to the Lender a
certificate stating that it has received no notice of the occurrence of a
default or Event of Default under the Indenture, that it has not commenced any
proceedings to accelerate the maturity of any of the Notes, and that to the best
of its knowledge no such proceedings have been commenced by any holder of Notes.
(g) Insurance. There shall be in effect policies of insurance,
satisfactory in form and substance to the Lender, and issued by insurance
companies reasonably satisfactory to the Lender in an amount not less than the
outstanding principal amount of all Notes secured by the Indenture, including
the Series J Note, insuring the Company against physical damage to or theft of
the Trust Estate, and the Trustee shall be named as a mortgage loss payee and as
an additional insured, as its interests may appear, under a standard loss payee
rider, and the Lender shall have received a certificate, dated the Closing Date,
signed by the President or a Vice President of the Company, stating that all
such required insurance is then in effect together with a copy of said policy or
policies.
SECTION 8.2. Closing Conditions - Subsequent Loans. Prior to each loan
closing following the first loan closing, the Company shall submit to the Lender
a Borrowing Notice as described in Section 1.1 above.
ARTICLE IX
NOTICES
SECTION 9.1. Notices. Any notice herein required or permitted to be given
may be given in writing by depositing the same in the United States mail,
postage prepaid, or by telegraph, telecopy, telex, personal delivery or
overnight courier, addressed:
To the Company as follows:
Mississippi Chemical Corporation
P. ▇. ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Secretary
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
To the Lender as follows:
NationsBank of Tennessee, N.A.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Large Commercial Division
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
SECTION 9.2. Change of Address. The Company and the Lender and any of its
successors in interest may change the address for service of notice upon it by a
notice in writing to the other party hereto.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Definitions. All capitalized terms used herein and not
defined herein shall have the meanings ascribed thereto in the Indenture. In
addition, for all purposes hereof, the following definitions shall apply unless
the context otherwise requires:
"Affiliate" means, with respect to the Lender, a Person (other than a
subsidiary) which directly or indirectly through one or more intermediaries
(i) controls, or is controlled by, or is under common control with, the Lender,
or (ii) owns or controls 10% or more of the issued and outstanding shares having
ordinary voting power or other rights of control of the Lender or of any Person
which controls or is under common control with the Lender. For purposes of this
definition, (x) a Person shall be deemed to own or control shares which such
Person has the right to acquire or control through the exercise of warrants or
options or the conversion of convertible securities which such Person owns or
controls, and (y) the term "control" (including, with correlative meanings, the
terms "controlled by" and "under common control with") means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of
securities, by contract, or otherwise.
"Indenture" means the Indenture of Mortgage, Deed of Trust, Assignment and
Security Agreement dated as of September 1, 1976 among the Company, the New
Orleans Bank for Cooperatives, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as trustee under certain deeds
of trust, and Deposit Guaranty National Bank, as trustee, together with all
indentures supplemental thereto.
"Participants" has the meaning set forth in Section 1.6 herein.
"Participating Bank" has the meaning set forth in Section 10.9 herein.
"Reportable Event" has the meaning set forth in ERISA.
SECTION 10.2. Accounting Terms. All accounting terms used herein which
are not otherwise expressly defined shall have the meanings respectively given
to them in accordance with generally accepted accounting principles.
SECTION 10.3. Successors and Assigns. Subject to the provisions of
Sections 10.9 and 10.12 herein, the terms and provisions of this Agreement shall
inure to the benefit of the registered holder from time to time of the Series J
Note.
SECTION 10.4. Setoff. If the Company becomes insolvent, however
evidenced, or any default occurs hereunder or any attachment of any balance of
the Company is threatened, any indebtedness from the Lender to the Company, to
the extent permitted by law, may be offset and applied toward the payment of the
Series J Note held by the Lender, whether or not such Series J Note, or any part
thereof, shall then be due. Pursuant to the intent expressed in Section 6.04 of
the Indenture, the Lender hereby covenants and agrees for the benefit of the
holders of all Notes of any other series issued under or secured by the
Indenture that in case at any time it receives, by reasons of setoff, payment
upon the Series J Note, it will purchase a portion of such other Notes of other
series held by such other Noteholders so that after such purchase each
Noteholder of any Note of any series issued under or secured by the Indenture
will hold an unpaid principal balance bearing the same proportion to the total
principal amount of such Notes of all series at such time outstanding as existed
prior to such receipt through setoff by the Lender. In the event any such setoff
or purchase is disturbed by legal process or otherwise, appropriate further
adjustments shall be made among the same Noteholders.
SECTION 10.5. Purchase of Series J Note. If the Company, or any
Subsidiary or affiliate of the Company, purchases or otherwise acquires any
interest in the Series J Note, such portion of the Series J Note shall not be
considered "outstanding" for the purposes of this Agreement.
SECTION 10.6. Home Office Payment. Notwithstanding any provision to the
contrary in this Agreement or in the Indenture, the principal of, premium, if
any and interest on the Series J Note and any other amounts becoming due
hereunder shall be paid by wire transfer of immediately available funds
delivered to the account of the Lender, or in such other reasonable manner, or
to such other account or address, as may from time to time be designated in
writing by the Lender by notice to the Company.
In all cases principal, premium, if any, and interest to be paid in respect
of the Series J Note shall be paid without any presentment or notation of
payment, and the amount of principal so paid on the Series J Note shall be
regarded as having been retired and cancelled at the time of payment.
SECTION 10.7. Expenses. The Company will pay or reimburse the Lender for
reasonable out-of-pocket expenses incurred by Lender and any Participating Bank,
including, but not limited to, the legal fees and expenses of counsel in
connection with their representation through the initial closing (all of which
shall be invoiced at the initial closing), title examination, and other expenses
incurred in connection with the negotiation, preparation,and execution of this
Agreement, the Series J Note, any related loan documents, filing costs and
amendment costs; provided, however, the Company shall not be obligated to pay or
reimburse Lender more than $30,000 in total expenses incurred with respect to
said initial closing hereunder and the amendment of the Series I Loan. If it
becomes necessary to enforce payment of the Series J Note or any of the terms
hereof, the Company agrees to pay reasonable attorneys fees, court costs and all
costs of collection.
SECTION 10.8. Stamp and Other Taxes. The Company hereby covenants and
agrees that it will pay all United States and State documentary stamp and other
taxes (including any interest or penalties thereon) which may be payable in
connection with, or arising out of, the execution and delivery of this Agreement
and the Series J Note issued at the Closing (or of any Series J Note
subsequently delivered pursuant to the provisions of this Agreement or the
Indenture) or any amendment of this Agreement or the Series J Note, and will
indemnify the Lender and all other holders of any of the Series J Note from time
to time against, and save the Lender and them harmless from, any liability, cost
or expense, in respect of any such stamp or other taxes and any interest or
penalties thereon.
SECTION 10.9. Sale of Series J Note. The Company and the Lender agree
that the Lender may sell, transfer or assign the Series J Note only as a whole,
it being the intention of the parties that there shall never be more than one
registered holder of the Series J Note for all purposes including the giving of
notice or consent; provided, however, the Lender may, notwithstanding the above,
sell to one or more (not to exceed three) financial institutions (other than
Affiliates of the Lender) reasonably acceptable to the Company, participation
interests in an aggregate principal amount up to 49% of the principal amount of
the Series J Note. Notwithstanding the above, the Lender may sell participation
interests in the Series J Note to one or more Affiliates of the Lender without
limitation. The Lender shall promptly inform the Company of the identity of any
purchaser and the principal amount of such purchase. In the event of the sale
of any participation interest, the Lender shall remain the registered holder of
the Series J Note unless (a) the holders of all participation interests,
including Affiliates of the Lender (the "Participating Banks") agree with the
Lender to substitute a new agent for the holders of all interests in the
Series J Note which agent must be a financial institution in place of the Lender
and (b) the Lender sells all of its interest (subject to outstanding
participation interests) to such agent. The provisions of this Section 10.9
shall be binding upon the Lender and each successor who shall at any time become
the registered holder of the Series J Note. The interests of each Participating
Bank may be sold by such Participating Bank only as a whole.
SECTION 10.10. Special Purchase Option. If (a) the Company shall (i)
request the Lender to consent to a waiver under (1) Section 5.13 of the
Indenture or (2) Article Seven-C of the Indenture, or (ii) give notice to the
Lender that it requests, pursuant to Section 10.02 of the Indenture, its consent
to an indenture or indentures supplemental to the Indenture, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture, or any such supplemental indenture (other than a
supplemental indenture for which, under the proviso to such Section 10.02, the
consent of the holders of 100% of the Notes of every Series affected thereby is
required), or a supplemental indenture waiving or amending Section 5.17 of the
Indenture, (b) the Company shall concurrently request of the holders of all
other Series of Notes entitled to vote or act with respect thereto (i) a like
waiver of (1) such Section 5.13 of the Indenture, or (2) the provision of
Article Seven-A or Seven-B of the Indenture corresponding to the provision of
such Article Seven-C to which the waiver requested of the Lender pertains, or
(ii) its consent to such supplemental indenture or indentures, as the case may
be, (c) the Company shall have obtained the consents referred to in clause (b)
of this Section from the holders of each other Series of Notes whose consent is
required for such matters, and the Company shall give notice of such fact to the
Lender, which notice shall state that if the Lender does not consent to such
matter, the Series J Note, including any interests of Participating Banks, shall
be subject to the Company's right to purchase the Series J Note under this
paragraph, and stating the date by which such consent must be given if the
Company's purchase right is not to arise (which date shall be not less than 15
days after the expiration of 30 days from the later of the effective date of the
Company's notice of its request under clause (a) of this Section, or the
effective date of the Company's notice under this clause (c), (d) the Lender
shall not have consented to the matters requested of it by the effective date of
the Company's notice under clause (c) of this sentence, and (e) such consent
shall not be given by the date specified in the Company's notice under clause
(c) of this sentence as the date after which the Company's right to purchase the
Series J Note will arise, then, at any time within 120 days after such date, the
Company may at its option, upon at least 10 days' notice to the Lender, purchase
all, but not less than all, of the Series J Note, including any interests of
Participating Banks, at 100% of the principal amount outstanding plus interest
accrued thereon to the purchase date.
SECTION 10.11. Amendments. This Agreement may be amended only in writing
executed by the Company and the Lender.
SECTION 10.12. Representations to Survive. All representations and
warranties made herein shall survive delivery of the Series J Note and the
making of the loans.
SECTION 10.13. Entire Agreement; Counterparts. This Agreement, the
Indenture and the Fourteenth Supplemental Indenture embody the entire agreement
and understanding between the Lender and the Company with respect to the
Series J Notes and supersede all prior agreements and understandings relating to
the subject matter hereof. Except as specifically set forth herein, the
provisions of this Agreement shall be for the benefit of the Lender and not for
the benefit of the Participating Banks. Headings to this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument, and in pleading or proving any provision of this Agreement it shall
not be necessary to produce more than one of such counterparts.
SECTION 10.14. Governing Law. This Agreement shall be governed by the
local laws of the State of Mississippi, without giving effect to the conflicts
of laws provisions thereof.
MISSISSIPPI CHEMICAL CORPORATION
By: /s/ ▇▇▇▇▇ Truly
Assistant General Counsel
NATIONSBANK OF TENNESSEE, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS AND MAY NOT BE RESOLD,
TRANSFERRED OR ASSIGNED WITHOUT REGISTRATION OR
WITHOUT OBTAINING AN EXEMPTION FROM SUCH REGISTRATION
MISSISSIPPI CHEMICAL CORPORATION
Revolving Credit Note, Series J
Final Maturity June 30, 1997
Date of initial advance:
---------------
$30,000,000 (Maximum advance)
FOR VALUE RECEIVED, the undersigned MISSISSIPPI CHEMICAL CORPORATION, a
Mississippi corporation (hereinafter with its successors, referred to as the
"Company"), hereby promises to pay to NationsBank of Tennessee, N.A.
(hereinafter referred to as the "Payee"), or its duly registered assigns, on
dates set forth below, the lesser of the principal sum of THIRTY MILLION DOLLARS
($30,000,000) or the aggregate unpaid principal amount of all Revolving Credit
Loans (as hereinafter defined) made by the Payee to the Company hereunder, and
to pay interest from the date hereof on the principal amounts hereof from time
to time outstanding at a rate or rates per annum as hereinafter set forth.
Revolving Credit Agreement
This Note is issued pursuant to the provisions of, inter alia, the Series J
Revolving Credit Agreement (as hereinafter defined) between the Payee and the
Company dated as of June 17, 1994, to which Agreement reference is hereby made
for a statement of the terms and conditions under which the loans evidenced
hereby were or are to be made.
Definitions
The following terms, as used in this Note, shall have the following
meanings:
"Credit Facility" means the maximum amount available to be lent by the
Payee to the Company pursuant to the Series J Revolving Credit Agreement,
initially, $30,000,000.
"Credit Facility Reduction Notice" means a written notice by the Company to
the Payee pursuant to which the Company elects to reduce the amount of the
Credit Facility which reduction shall be in minimum increments of $2,500,000.
"Eurodollar Business Day" means any day on which commercial banks are open
for domestic and international business (including dealings in U.S. Dollar
deposits) in London and New York City.
"Eurodollar Interest Period" means for each LIBOR Based Rate Loan, the
period during which interest at the LIBOR Based Rate, determined as provided in
this Note, shall be applicable, provided, however, that each such period shall
be either one (1), two (2), three (3), six (6) or twelve (12) months, which
shall be measured from the date specified by the Company in each Eurodollar Rate
Request for the commencement of the computation of interest at the LIBOR Based
Rate, to the numerically corresponding day in the calendar month in which such
period terminates; provided, however, that if there is no such numerically
corresponding day in such succeeding month, such Eurodollar Interest Period
shall end on the last Business Day of such succeeding month. If a Eurodollar
Interest Period would otherwise end on a day which is not a Business Day, such
Eurodollar Interest Period shall end on the next succeeding Business Day;
provided, however, that if such next succeeding Business Day follows in a new
month, such Eurodollar Interest Period shall end on the immediately preceding
Business Day. The Company may not elect any Eurodollar Interest Period which
ends later than the Final Maturity Date. Interest shall accrue from and
including the first day of a Eurodollar Interest Period to but excluding the
last day of such Eurodollar Interest Period.
"Eurodollar Rate Request" means telephonic notice by the Company to be
received by the Payee by 11:00 am (Nashville time) one (1) Eurodollar Business
Day (or the latest Payee Business Day prior thereto if such day is not a Payee
Business Day) prior to the date specified in the Eurodollar Rate Request for the
commencement of the Eurodollar Interest Period, and specifying the amount of the
LIBOR Based Rate Loan and the applicable Eurodollar Interest Period desired by
the Company for such LIBOR Based Rate Loan. The Company shall promptly confirm
such notice in writing.
"Final Maturity Date" means the date all of the principal of, premium, if
any and interest on the Series J Note is payable, whether by scheduled
installments, acceleration or otherwise.
"Fixed Rate" means a fixed rate of interest equal to the rate on U.S.
Treasury Notes with comparable terms and maturities approximately equal to the
Fixed Rate Interest Period plus 2.00% per annum.
"Fixed Rate Interest Period" means for each Fixed Rate Loan, the period
during which such loan bears interest at a Fixed Rate. If a Fixed Rate Interest
Period would otherwise end on a day which is not a Business Day, such Fixed Rate
Interest Period shall end on the next succeeding Business Day; provided,
however, that if such next succeeding Business Day follows in a new month, such
Fixed Rate Interest Period shall end on the immediately preceding Business Day.
The Company may not elect any Fixed Rate Interest Period which ends later than
the Final Maturity Date. Interest shall accrue from and including the first day
of a Fixed Rate Interest Period to but excluding the last day of such Fixed Rate
Interest Period.
"Fixed Rate Request" means written notice by the Company that it elects to
have all or a portion of the outstanding principal amount of this Note bear
interest at a Fixed Rate, which notice shall specify the principal amount of
such Fixed Rate Loan and the duration of the Fixed Rate Interest Period.
"LIBOR Based Rate" means a rate per annum equal to the sum of (a) the LIBOR
Rate for dollar deposits approximately equal in principal amount to the LIBOR
Based Rate Loan requested in the Eurodollar Rate Request and with a maturity
comparable to the Eurodollar Interest Period in question, plus (b) 1.25% for any
Eurodollar Interest Period or portion thereof.
"LIBOR Rate" means, with respect to any LIBOR Based Rate Loan for any
Eurodollar Interest Period, the interest rate per annum for deposits in Dollars
which currently appears on the Telerate Screen Page 3807 (as defined herein)
(rounded up to the next 1/16 of 1% if such rate appears as a fraction smaller
than 1/16 of 1%) as of 12:00 noon, Nashville time, on the day that is one (1)
Eurodollar Business Day preceding the first day of the applicable Eurodollar
Interest Period. If no such offered rate appears on the Telerate Screen Page
3807, the rate in respect of the applicable Eurodollar Interest Period will be
the rate per annum (rounded up to the next 1/16 of 1% if such rate is a fraction
smaller than 1/16 of 1%) at which deposits in Dollars are offered by the
Reference Banks (as hereinafter defined) at approximately 12:00 noon, Nashville
time, on the date that is one (1) Eurodollar Business Day preceding the
commencement of such applicable Eurodollar Interest Period to prime banks in the
London interbank market for a period of time equal to such applicable Eurodollar
Interest Period in a Representative Amount (as hereinafter defined). Payee will
request each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate in respect of such applicable
Eurodollar Interest Period will be the arithmetic mean of the quotations. If
fewer than two quotations are provided as requested, the LIBOR Based Rate will
be unavailable and such loan amount shall bear interest at the Prime Rate.
"Payee Business Day" means a day on which commercial banks in Nashville,
Tennessee, are not authorized or required to close.
"Prime Rate" means the fluctuating reference or benchmark rate of interest
that is publicly announced by NationsBank of Tennessee, N.A. as its Prime Rate
to be in effect from time to time with any changes in such Prime Rate to be
effective on the date of the public announcement of such change. The Prime Rate
is not necessarily the lowest rate of interest charged by NationsBank of
Tennessee, N.A.
"Quarterly Payment Date" means the last day of each March, June, September
and December commencing on the first such day following the date of the initial
advance under the Series J Revolving Credit Agreement.
"Reference Banks" means the principal London offices of Barclays Bank PLC,
National Westminister Bank PLC, Bankers Trust International, Ltd. and Bank of
Tokyo, Ltd.
"Revolving Credit Loan" means a Prime Rate, LIBOR Based Rate or Fixed Rate
Loan made pursuant to the Series J Revolving Credit Agreement.
"Series J Revolving Credit Agreement" means the Revolving Credit Agreement
between the Company and NationsBank of Tennessee, N.A., dated as of June 17,
1994, as the same is amended or supplemented.
"Telerate Screen Page 3807" means the display designated as page 3807 on
the Telerate Screen (or such other page as may replace page 3807 on that service
for the purpose of displaying London interbank offered rates of major banks).
Interest Rate
All advances hereunder shall, unless the Company otherwise elects as
hereinafter set forth, bear interest at the Prime Rate. The Company shall have
the right at any time, on prior irrevocable written or telex notice to the Payee
not later than 11:00 a.m., Nashville time, to convert any Prime Rate, Fixed
Rate, or LIBOR Based Rate Loan into a Revolving Credit Loan of another type, or
to continue any LIBOR Based Rate Loan for a Eurodollar Interest period or any
Fixed Rate Loan for a Fixed Rate Interest Period (specifying in each case the
Interest Period to be applicable thereto), subject in each instance to the
following: (a) no LIBOR Based Rate Loan shall be converted at any time other
than at the end of the Eurodollar Interest Period applicable thereto; (b) no
Fixed Rate Loan shall be converted at any time other than at the end of the
Fixed Rate Interest Period applicable thereto unless the Company also pays at
the same time the prepayment penalty, if any, due hereunder as specified in the
section on Prepayments; (c) each conversion shall be effected by applying the
proceeds of the new LIBOR Based Rate, Fixed Rate, and/or Prime Rate Loan, as the
case may be, to the Revolving Credit Loan (or portion thereof) being converted;
and (d) the number of LIBOR Based Rate Loans and Fixed Rate Loans at any time
outstanding shall not exceed an aggregate of five (5). Each Fixed Rate Request
and/or Eurodollar Rate Request shall be irrevocable and shall refer to this Note
and specify (i) the identity and principal amount of the particular Revolving
Credit Loan that the Company requests be converted or continued, (ii) if such
notice requests conversion, the date of such conversion (which shall be a
Business Day for Fixed Rate Loans and a Eurodollar Business Day for LIBOR Based
Rate Loans), and (iii) if a Revolving Credit Loan is to be converted to a LIBOR
Based Rate Loan or a Fixed Rate Loan or a LIBOR Based Rate Loan or Fixed Rate
Loan is to be continued, the Eurodollar or Fixed Rate Interest Period with
respect thereto. In the event the Company shall not give notice to continue any
LIBOR Based Rate or Fixed Rate Loan for a subsequent period, such Revolving
Credit Loan (unless repaid) shall automatically be converted into a Prime Rate
Loan. If the Company shall fail to specify in the request the type of borrowing
or, in the case of a Fixed Rate Loan, the applicable Fixed Rate Interest Period,
the Company will be deemed to have requested a Prime Rate Loan. If the Company
shall fail to specify in any Eurodollar Rate Request the applicable Eurodollar
Interest Period, the Company will be deemed to have selected a Eurodollar
Interest Period of one (1) month's duration. Notwithstanding anything to the
contrary contained above, if an Event of Default shall have occurred and be
continuing, no LIBOR Based Rate or Fixed Rate Loan may be continued and no Prime
Rate Loan may be converted into a Fixed Rate or LIBOR Based Rate Loan.
Interest Payments
All payments hereunder shall be made in lawful money of the United States
of America, with interest on the whole of said principal amount remaining from
time to time unpaid from the date hereof at a LIBOR Based Rate, the Prime Rate
or a Fixed Rate and as provided herein, until the principal hereof shall become
due and payable (whether at maturity, on a date fixed for prepayment, by
acceleration or otherwise). Interest shall be computed in all cases on the
basis of a 360-day year for the actual number of days elapsed. Interest shall
be payable as follows: with respect to any portion of this Note bearing interest
at a LIBOR Based Rate (a "LIBOR Based Rate Loan"), interest shall be payable on
the last day of each applicable Eurodollar Interest Period, unless such
Eurodollar Interest Period exceeds three (3) months, in which event interest
shall be payable with respect to the principal amount bearing interest at such
LIBOR Based Rate on each Quarterly Payment Date occurring after the first day of
the Eurodollar Interest Period through the last day of such Eurodollar Interest
Period, and on the last day of each Eurodollar Interest Period; with respect to
any portion of this Note bearing interest at the Prime Rate (a "Prime Rate
Loan"), interest shall be payable on each Quarterly Payment Date; with respect
to any portion of this Note bearing interest at a Fixed Rate (a "Fixed Rate
Loan"), interest shall be payable on each Quarterly Payment Date and on the last
day of each Fixed Rate Interest Period, in each case commencing on the first
such date following the making of such loan.
Place of Payments; Default Rate
The principal of, premium, if any, and interest on this Note shall be
payable at the principal office of NationsBank of Tennessee, N.A., or at such
other place as the registered holder may designate from time to time in writing
which designation shall be made at least ten (10) days before such principal,
premium or interest is due. Without limitation of any other rights of the
holder, overdue payments of principal (including any overdue prepayment of
principal) or premium, if any, and (to the extent permitted by applicable law)
overdue payments of interest shall bear interest at the rate applicable to such
overdue principal, plus two percent (2%) per annum.
Maximum Rate
Notwithstanding the above, in no event whatsoever shall the interest rate
applicable to this Series J Note exceed the maximum amounts collectible under
applicable laws in effect from time to time. If for any reason whatsoever the
interest rate applicable to this Series J Note exceeds the maximum permissible
rate under applicable laws in effect from time to time, then, ipso facto, the
obligation to pay such interest shall be reduced to the maximum amounts
collectible under applicable laws in effect from time to time, and any amounts
paid to the Payee that exceed such maximum amounts shall be applied to the
reduction of the principal balance of this Series J Note and/or refunded to the
Company so that at no time shall the interest rate applicable to this Series J
Note exceed the maximum amounts permitted from time to time by applicable law.
This provision shall control every other provision herein and in any and all
other agreements and instruments now existing or hereafter arising between the
Company and the Payee with respect to this Series J Note.
Principal Advances and Payments
Subject to the provisions of the Series J Revolving Credit Agreement, the
Company may request (upon one day's notice in writing) that the Payee advance an
amount in increments of $1,000,000 which, when added to the amount previously
requested and still unpaid, does not exceed the Credit Facility.
Unless sooner paid, all outstanding principal on this Note, together with
any unpaid accrued interest, shall be payable on June 30, 1997.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the Payee on Schedule I attached hereto or on a form
substantially similar to said Schedule I attached hereto and made a part hereof,
or otherwise recorded by the Payee in its internal records; provided, however,
that the failure of the Payee to make such a notation or any error in such a
notation shall not in any manner affect the obligation of the Company to make
the payments of principal and interest in accordance with the terms of this Note
and the Series J Revolving Credit Agreement.
In the event any day on which payment of principal or interest is due is
not a Payee Business Day, such payment may be made on the next succeeding Payee
Business Day.
Change in Legality
Notwithstanding anything to the contrary herein contained, if any change in
any law or regulation or in interpretation thereof by any governmental authority
charged with the administration or interpretation thereof shall make it unlawful
for the Payee to make or maintain any LIBOR Based Rate Loan or to give effect to
its obligations as contemplated in the Series J Revolving Credit Agreement,
then, by written notice to the Company describing such changes, the Payee may
(1) declare that LIBOR Based Rate Loans will not thereafter be made by the Payee
under the Series J Revolving Credit Agreement, whereupon the Company shall be
prohibited from requesting LIBOR Based Rate Loans from the Payee unless such
changes are subsequently withdrawn or otherwise rendered ineffective, notice of
which shall be promptly provided by the Payee to the Company; and (2) require
that all outstanding LIBOR Based Rate Loans shall be converted to Prime Rate
Loans, in which event (a) all such LIBOR Based Rate Loans shall be automatically
converted without penalty or additional charge to the Company to Prime Rate
Loans as of the effective date of such notice as set forth below and (b) all
payments and prepayments of principal that would otherwise have been applied to
repay the converted LIBOR Based Rate Loans shall instead be applied to repay the
Prime Rate Loans resulting from the conversion of such LIBOR Based Rate Loans.
For purposes of the preceding paragraph, a notice to the Company by the
Payee shall be effective, if lawful, on the last day of the Eurodollar Interest
Period for each respective LIBOR Based Rate Loan; in all other cases, such
notice shall be effective on the later of (i) the date of receipt by the Company
or (ii) the date set forth in such notice.
Alternate Rate
Anything herein to the contrary notwithstanding, if, prior to the
determination of the LIBOR Based Rate in respect of any Eurodollar Rate Request
as herein provided, Payee advises the Company in writing that (i) dollar
deposits in the amount of a requested principal amount of a LIBOR Based Rate
Loan are not generally available in the London Interbank Market; (ii) the rate
at which such dollar deposits are being offered will not adequately and fairly
reflect the cost to the Payee of making or maintaining such LIBOR Based Rate
Loan during such Eurodollar Interest Period; or (iii) reasonable means do not
exist for ascertaining the LIBOR Rate, any request by the Company for a LIBOR
Based Rate Loan shall, until the circumstances giving rise to such notice no
longer exist, be deemed to be a request for a Prime Rate Loan. Each
determination by the Payee hereunder shall be conclusive absent manifest error.
If at any time subsequent to the giving of such notice Payee determines that
because of a change in circumstances the LIBOR Based Rate is again available,
Payee shall so advise the Company and the Company shall have the option to
convert the rate of interest payable hereunder from the Prime Rate to the LIBOR
Based Rate by submitting a Eurodollar Rate Request to Payee and otherwise
complying with the provisions of this Note with respect thereto.
Prepayments
The Company shall have the right to prepay (a) any Prime Rate Loan at any
time, in whole or in part, and (b) each LIBOR Based Rate Loan, in whole or in
part, on the last day of the applicable Eurodollar Interest Period for such
loan, in each case at the prepayment price of the principal amount to be prepaid
plus interest to the prepayment date, without premium or penalty; provided any
prepayments shall be in principal increments of $1,000,000 or greater.
The Company shall have the right at any time to prepay any Fixed Rate Loan,
in whole or in part, at the redemption price of 100% of the principal amount so
prepaid plus interest to the prepayment date, plus the Yield-Maintenance
Premium, if any.
As used herein, "Yield Maintenance Premium" shall mean an amount equal to
the quotient of: (A) the product of (1) the outstanding principal amount of the
Fixed Rate Loan immediately prior to prepayment, multiplied by (2) the excess of
the Fixed Rate applicable thereto over the sum of two percent (2%) per annum
plus the annual yield on a United States Treasury Bond having substantially the
same maturity as the Fixed Rate Loan (the "Treasury Bond Yield"), as such yield
is reported in The Wall Street Journal or, in the event such Treasury Bond Yield
is no longer published in The Wall Street Journal, a similar publication
acceptable to Payee, on the fifth (5th) business day preceding the date of
prepayment and (3) the number of months remaining in the Fixed Rate Loan term;
divided by (B) twelve (12). Such quotient shall be discounted to present value
as of the date of prepayment by applying a discount rate equal to the Treasury
Bond Yield.
This Note or the installments thereof so prepaid will cease to bear
interest on the specified prepayment date, provided funds for its prepayment are
on deposit with the Payee or with the Trustee at that time, and this Note or
such installments shall no longer be entitled to the benefit of the Indenture
and shall not be deemed to be outstanding under the provisions of the Indenture.
Indenture
This Note is the sole note of an authorized issue of notes of the Company,
as provided in the Indenture mentioned below and is herein called the "Series J
Note," of the series designated "Revolving Credit Notes, Series J, Final
Maturity June 30, 1997," limited to $30,000,000 in aggregate principal amount
outstanding, all issued and to be issued under and equally and ratably secured
by an Indenture of Mortgage, Deed of Trust, Assignment and Security Agreement
dated as of September 1, 1976, among the Company, the New Orleans Bank for
Cooperatives (now the National Bank for Cooperatives), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as
trustee under certain deeds of trust, and Deposit Guaranty National Bank, as
Trustee (said indenture, together with all indentures supplemental thereto,
being herein called the "Indenture" and said corporate trustee or its successor
as trustee being herein called the "Trustee"), to which Indenture reference is
hereby made for a description of the property mortgaged and pledged, the nature
and extent of the security, the rights and remedies and limitations of said
rights and remedies of the holders of the Series J Note, and of the rights,
powers, duties and immunities of the Trustee thereunder, and of the rights and
obligations of the Company thereunder, and the terms and conditions upon which
the Series J Note is, and will be, issued and secured. This Note is entitled to
the benefits of the Indenture. By accepting this Note, each holder agrees to be
bound by and subject to the provisions of the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than fifty-one percent (51%) of the
aggregate unpaid principal amount of all Notes and of not less than fifty-one
percent (51%) of the unpaid principal amount of each Series of Notes at the time
outstanding except for the Series D, E and F Pollution Control Notes, the Series
G Industrial Development Note, and any other Notes with respect to which the
Supplemental Indenture relating to the issuance of such series of Notes provides
that such series shall not have the series vote, or, if one or more but not all
of the series of Notes then outstanding would be affected by such amendment,
modification or alteration, of not less than fifty-one percent (51%) in
aggregate unpaid principal amount of the Notes of each series so affected,
evidenced as provided in the Indenture, to execute supplemental indentures
adding any provision to, or changing in any manner, or eliminating any of the
provisions of, the Indenture; provided however, that without the written consent
of the holders of one hundred percent (100%) in aggregate unpaid principal
amount of any series of Notes affected thereby at the time outstanding, no such
supplemental indenture shall (1) extend the final maturity of any Note of such
series or reduce the rate or extend the time of payment of interest thereon, or
reduce the amount of the principal thereof, or reduce any premium payable on the
prepayment thereof, or reduce the amount required to be paid as a mandatory
prepayment of any Note of such series or extend the time within which any such
prepayment is to be made or alter the manner in which any note of such series is
selected for prepayment, or (2) affect the rights of holders of some of the
Notes without similarly affecting the rights of the holders of all of the Notes
at the time outstanding, or (3) create any priority with respect to Notes of any
series over Notes of any other series, or (4) reduce the aforesaid percentages
of the principal amount of the Notes or any series thereof required to approve
any such supplemental indenture or reduce the percentage required to effectuate
a waiver as referred to in the next sentence, or (5) amend Section 10.02 of the
Indenture. The Indenture also provides that the holders of not less than
fifty-one percent (51%) in aggregate unpaid principal amount of any or each
series of Notes at the time outstanding may on behalf of the holders of all
Notes of such series or all series, respectively, waive compliance with or
failure to comply with certain covenants contained in the Indenture.
Default
If an Event of Default as defined in the Indenture shall occur and be
continuing, the principal of all Notes may be declared due and payable upon the
conditions and in the manner and with the effect provided in the Indenture. The
Trustee or the holders of the Notes shall be entitled to recover reasonable
counsel fees incurred in any action, suit or proceeding brought to enforce the
Notes or the Indenture in which judgment is recovered.
Registration
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee under
the Indenture referred to herein.
Subject to the restrictions on transfer set forth in the Indenture and the
Series J Revolving Credit Agreement, transfers of this Note may be registered
upon a register maintained for such purpose by the Trustee, as provided in the
Indenture. Prior to due presentment of this Note for registration of transfer,
the Company may treat the registered holder hereof as the absolute owner of this
Note for the purpose of receiving all payments of principal, premium, if any,
and interest hereon and for all other purposes hereof, of the Series J Revolving
Credit Agreement and of the Indenture.
Liability
No recourse shall be had for the payment of the principal of, or the
interest on, this Note or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, officer, director or stockholder, as such,
past, present or future, of the Company or of any predecessor or successor
corporation, either directly or through the Company or otherwise, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty, or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Controlling Law
This Note is made and delivered in Jackson, Mississippi, and shall be
governed by the local laws of the State of Mississippi without giving effect to
the conflicts of laws provisions thereof.
Waiver
The parties hereto, including the Company and any and all guarantors,
endorsers and pledgors, hereby waive presentment, demand, notice of dishonor,
protest and all other demands and notices in connection with the delivery,
acceptance, performance and enforcement of this Note.
IN WITNESS WHEREOF, MISSISSIPPI CHEMICAL CORPORATION has caused this Note
to be signed in its corporate name by the manual or facsimile signature of its
President or one of its Vice Presidents and its corporate seal to be impressed
hereon or a facsimile thereof to be imprinted hereon and to be attested by a
manual or facsimile signature of its Secretary or one of its Assistant
Secretaries.
(CORPORATE SEAL) MISSISSIPPI CHEMICAL CORPORATION
By:
-----------------------------
Name:
Title:
ATTEST:
By:
---------------------------
Name:
Title:
This is the Series J Note described in the Indenture referred to herein.
DEPOSIT GUARANTY NATIONAL BANK
as Trustee
By:
-----------------------------
Authorized Officer
SCHEDULE I
[FORM OF ENDORSEMENT OF SERIES J NOTE WITH RESPECT TO ADVANCES OF
CREDIT FACILITY AND PAYMENTS ON ACCOUNT OF PRINCIPAL]
ADVANCE OF CREDIT FACILITY AND
PAYMENTS ON ACCOUNT OF PRINCIPAL
Amount of Any # of Days Amount of
Credit Applicable In Credit Outstanding Unused
Facility Rate Interest Maturity Interest Facility Principal Commitment
Date Advanced Basis Rate Date Period Repaid Balance Balance
==== ========= ===== ======== ============ ========= ========== =========== ==========
==== ========= ===== ======== ============ ========= ========== =========== ==========
SCHEDULE A
SHORT-TERM BORROWING AND
FUNDED DEBT AT 5/31/94
OUTSTANDING
I. FUNDED DEBT PRINCIPAL AMOUNT
A. NOTES SECURED BY THE INDENTURE
1. Series A Notes issued by the Bank
Note No. 6392 $12,500,000
2. ▇▇▇▇▇▇▇ County, Mississippi,
Pollution Control Notes, $ 8,105,000
Series D and F
3. Yazoo County, Mississippi,
Pollution Control Note, Series E,
and Industrial Development Note, $ 7,400,000
Series G
4. Series H Note held by ▇▇▇▇ ▇▇▇▇▇▇▇
Variable Life Insurance Company $ 3,600,000
5. Series I Note held by NationsBank
of Tennessee, N.A. $ -0-
TOTAL SECURED BY INDENTURE $31,605,000
B. OTHER FUNDED DEBT
1. Capitalized Lease, Farm Credit
Leasing (Mississippi Phosphates $ 423,203
Corporation)
2. 9.5% Subordinated Notes due July 1, $ 3,148,200
1999
TOTAL OTHER FUNDED DEBT $ 3,571,403
TOTAL FUNDED DEBT $35,176,403
OUTSTANDING
II.SHORT-TERM BORROWING PRINCIPAL AMOUNT
A. Revolving commodity loan due 11/1/94
issued by the Bank under Amended and
Restated Line of Credit Agreement No.
6871(B) dated 10/22/93 (not to exceed
$20,000,000 at any one time $ -0-
outstanding)
B. Revolving seasonal working capital loan
due 11/1/94 issued by the Bank under
Amended and Restated Line of Credit
Agreement No. 6872(B) dated 10/22/93
(not to exceed $20,000,000 at any one
time outstanding) $ -0-
C. Line of credit agreement dated 10/19/92
with Deposit Guaranty National Bank for
up to $5,000,000 for operating capital
purposes and as backup for control
disbursement $ -0-
D. Bankers Acceptances under Acceptance
Agreement dated January 1, 1994,
between Mississippi Phosphates
Corporation and NationsBank of $ 3,470,000
Tennessee, N.A.
E. Revolving Loan Note in favor of
NationsBank of Tennessee, N.A., dated
April 26, 1994, and maturing
December 1, 1994 (not to exceed
$5,000,000 at any one time outstanding) $ -0-
TOTAL SHORT-TERM BORROWING $ 3,470,000
TOTAL SHORT-TERM BORROWING AND
FUNDED DEBT $38,646,403
III. INSTRUMENTS PROVIDING FOR OR GOVERNING SHORT-TERM BORROWING AND FUNDED
DEBT
A. Indenture or Mortgage, Deed of Trust, Assignment and Security
Agreement dated as of September 1, 1976, among the Company and
New Orleans Bank for Cooperatives (now National Bank for Cooperatives)
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as trustee under certain deeds of trust, and
Deposit Guaranty National Bank, as Trustee, as amended and
supplemented by the First through Thirteenth Supplemental Indentures.
B. Loan Agreement No. 6392 dated April 24, 1987, between the Company and
the Bank, providing for a loan in the original principal amount of
$35,000,000, represented by Note No. 6392 referred to as Item 1 of
Part I.A of this Schedule A.
C. Note Purchase Agreement dated as of December 6, 1989, among the
Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance Company, referred to
as Item 4 of Part I.A of this Schedule A.
D. Revolving Credit/Term Loan Agreement dated as of August 6, 1992,
between the Company and NationsBank of Tennessee, N.A., referred to as
Item 5 of Part I.A of this Schedule A.
E. Capitalized Lease Proposal Number DL05-60257 dated November 25, 1991,
between Farm Credit Leasing Services Corporation and Mississippi
Phosphates Corporation, referred to as Item 1 of Part I.B of this
Schedule A.
F. Indenture dated as of May 1, 1989, between the Company and Sunburst
Bank, as Trustee, providing for the issuance by the Company of the
Subordinated Notes referred to as Item 2 of Part I.B of this
Schedule A.
G. Amended and Restated Line of Credit Agreement No. 6871(B) dated
October 22, 1993, between the Company and the Bank, providing for a
revolving commodity loan in the maximum principal amount of
$20,000,000, represented by Note No. 6871(B) referred to as Item A of
Part II of this Schedule A.
H. Amended and Restated Line of Credit Agreement No. 6872(B) dated
October 22, 1993, between the Company and the Bank, providing for a
revolving seasonal working capital loan in the maximum principal
amount of $20,000,000, represented by Note No. 6872(B) referred to as
Item B of Part II of this Schedule A.
I. Letter agreement dated October 19, 1992, between the Company and
Deposit Guaranty National Bank, providing for an unsecured line of
credit of up to $5,000,000 for operating capital purposes and as
backup for control disbursement, referred to as Item C of Part II of
this Schedule A.
J. Acceptance Agreement dated January 1, 1994, whereby Mississippi
Phosphates Corporation appoints NationsBank of Tennessee, N.A., as
attorney-in-fact to execute, accept and discount drafts on its behalf
in an amount up to $10,000,000, referred to as Item D of Part II of
this Schedule A.
K. Revolving Loan Note of the Company in favor of NationsBank of
Tennessee, N.A., dated April 26, 1994, and maturing December 1, 1994,
in the maximum principal amount of $5,000,000.
SCHEDULE B
SUBSIDIARIES AND AFFILIATES
SUBSIDIARIES (OTHER THAN RESTRICTED SUBSIDIARIES)
Newsprint South, Inc.
NSI Land Corporation
Newsprint South Sales Corp.
(a subsidiary of Newsprint South, Inc.)
RESTRICTED SUBSIDIARIES
Triad Chemical
Mississippi Phosphates Corporation
Mississippi Potash, Inc.
Mississippi Nitrogen, Inc.
AFFILIATES
The Company has a 50% interest in Triad Chemical, a joint venture with
First Mississippi Corporation, which is considered a Restricted Subsidiary.
SCHEDULE C
JUDGMENTS AND PENDING LITIGATION
1. PROPOSED DEFICIENCIES ASSESSED AGAINST MISSISSIPPI CHEMICAL CORPORATION BY
THE INTERNAL REVENUE SERVICES FOR TAX YEARS ENDED JUNE 30, 1983, 1984, AND
1985
In connection with an Internal Revenue Service audit of fiscal years 1985
through 1987, the Company, on June 21, 1989, received an Examination Report
which proposed adjustments totaling approximately $3,300,000 to the
Company's tax liability for tax years 1983, 1984 and 1985. Interest on the
proposed deficiencies would be approximately $2,920,000 through June 30,
1993. It is the Service's position that Section 277 of the Internal
Revenue Code prohibits non-exempt cooperatives from carrying back losses
incurred on patronage business. It is the Company's position that, as a
matter of law, Section 277 does not apply to the Company. On July 9, 1990,
the Company filed with the District Director of the Internal Revenue
Service its protest of the proposed deficiency. The case has been placed
in suspense pending further developments in a similar case, Buckeye
Countymark, Tax Court Docket No. 29412-87. The Company intends to
vigorously defend its position in this matter. If the Company is
unsuccessful, the relevant losses may be carried forward to succeeding tax
years.
2. PROPOSED DEFICIENCIES ASSESSED AGAINST MISSISSIPPI CHEMICAL CORPORATION BY
THE STATE TAX COMMISSION FOR FISCAL YEARS ENDED JUNE 30, 1984 AND 1985
On October 27, 1987, the Mississippi State Tax Commission, Bureau of Audit,
assessed against the Company a deficiency for the fiscal years ended
June 30, 1984, and June 30, 1985, in income tax, franchise tax, penalty and
interest in the amount of $470,000. Interest would apply from the date of
the assessment until the matter is resolved. On January 30, 1990, the
Mississippi State Tax Commission affirmed the assessment. The principal
issues are (i) whether direct accounting should be used for operations of
the Company in Alabama, Florida, and New Mexico, and (ii) whether the
property, payroll and sales factors of the apportionment formula should be
modified by excluding from the denominator of the factor the property
accounted for by direct accounting. On May 23, 1990, the Company filed a
Complaint against the State Tax Commission in the Chancery Court of Yazoo
County, Mississippi, seeking a reversal of the Commission's order of
January 30, 1990, and a determination of no assessment in income or
franchise taxes for the years at issue. A three-day trial was held in
May 1994, and a schedule was established for filing of written briefs by
the Company and the State Tax Commission beginning July 1, 1994, and during
the following 31 days.
3. POTASH LITIGATION
On April 1, 1993, the first of 12 class action lawsuits was filed against
the Company and other United States and Canadian potash producers. These
suits were consolidated into a single action in Minnesota.
In addition, other actions containing substantially similar allegations
were filed in United States District Courts in Illinois and Virginia.
These suits were also consolidated with the Minnesota proceeding.
In these consolidated complaints, plaintiffs alleged that, beginning in
1987, the Canadian potash producers conspired to fix the price of potash
sold in the United States in violation of the federal antitrust laws,
specifically Section 1 of the ▇▇▇▇▇▇▇ Act. The conspiracy allegedly spread
to include the United States producers named as defendants. For the
violations, plaintiffs requested an injunction prohibiting the defendants
from continuing the alleged conspiracy, unspecified monetary damages, and
attorneys' fees.
A state court action was also filed against the Company and other United
States and Canadian potash producers in the Superior Court of California.
Similarly, this action alleged that a price-fixing conspiracy existed among
the defendants, which violated California Uniform Competition Statutes.
This suit was removed to Federal Court and consolidated with the Minnesota
cases.
Upon motion made by defendants, the Minnesota District Court, on December
8, 1993, disqualified certain of the plaintiffs' attorneys in the
consolidated action, finding the plaintiffs' claims were based on
privileged information improperly or illegally disclosed to plaintiffs.
The Court further ordered plaintiffs to file amended complaints, each with
an affidavit stating the basis for the allegations contained therein,
within 30 days of the date of its order.
All of the plaintiffs have now filed amended complaints. The Company has
not been named as a defendant in any of the amended Minnesota filings. In
addition, the Company has been voluntarily dismissed by the plaintiffs in
the California state action. The Company expects to enter into a Tolling
Agreement with two of the Minnesota plaintiffs whereby the Company will
agree that the running of time under any applicable statute of limitations
will be tolled for the period from the date of the Tolling Agreement
through September 30, 1994.
4. POTASH INVESTIGATION
On November 24, 1993, the Antitrust Division of the Department of Justice
served the Company with a grand jury subpoena in connection with its
investigation of the allegations of price fixing by United States and
Canadian potash producers set forth in section 3 above. The subpoena
requests that the Company produce certain documents relating to its potash
business in the United States and Canada. The Company is in the process of
assembling these documents for production.
5. OTHER LEGAL PROCEEDINGS
In addition to the foregoing, the Company and its subsidiaries, in the
ordinary course of business, are the subject of, or a party to, other
various pending or threatened legal proceedings. The Company believes that
any ultimate liability arising from these actions would not have a material
effect on the Trust.
SCHEDULE D
ERISA MATTERS
1. Listed below is each employee benefit plan (as defined in Section 3 of
ERISA) maintained by the Company and/or a Restricted Subsidiary, in each
case indicating the corporation(s) for whose employees' benefit the plan is
maintained:
(a) Mississippi Chemical Corporation Retirement Plan (formerly known
as the Group Pension Plan for Employees of Mississippi Chemical
Corporation);
Mississippi Chemical Corporation ("MCC")
Mississippi Potash, Inc. ("Potash")
(b) Mississippi Chemical Corporation Thrift Plan Plus
(Section 401(k));
MCC
Potash
(c) Self-Insured Weekly Indemnity;
MCC
Potash
(d) Mississippi Chemical Corporation Employees Supplemental
Unemployment Benefits (SUB) Plan;
MCC
(e) Mississippi Chemical Corporation Profit-Sharing Plan;
MCC
(f) Group Health Plan (formerly known as the Employee Health
Protection Plan for Mississippi Chemical Corporation);
MCC
Mississippi Phosphates Corporation ("Phosphates")
Potash
Newsprint South, Inc. ("NSI")
Newsprint South Sales Corp. ("NSSC")
MCC Federal Credit Union ("Credit Union")
(g) Mississippi Chemical Corporation Dental Plan;
MCC
Phosphates
Potash
NSI
NSSC
Credit Union
(h) Group Life Insurance Plan for Employees of Mississippi Chemical
Corporation;
MCC
Potash
NSI
NSSC
Credit Union
(i) Long-Term Disability Plan for Employees of Mississippi Chemical
Corporation;
MCC
Potash
NSI
NSSC
Credit Union
(j) Group Travel Accident Policy;
MCC
Phosphates
Potash
NSI
NSSC
(k) Newsprint South, Inc., Retirement Plan;
NSI
NSSC
(l) Newsprint South, Inc., Savings and Investment Plan ( Section401(k));
NSI
NSSC
(m) Mississippi Phosphates Corporation Section 401(k) Retirement Plan;
Phosphates
(n) Welfare Benefit Plan for Employees of Mississippi Phosphates
Corporation;
Phosphates
(o) Mississippi Potash, Inc. Supplemental Unemployment Plan;
Potash
(p) Mississippi Potash, Inc., Profit Sharing Plan;
Potash
(q) Flexible Benefit Plan;
MCC
Potash
NSI
NSSC
2. The Company is a 50% owner of Triad Chemical, a joint venture of which
First Mississippi Corporation is the owner of the remaining 50%. Listed
below are the employee benefit plans maintained by Triad Chemical for the
benefit of its employees (and, in some cases, of employees of other
affiliates of Triad Chemical):
(a) Pan American Group Life Insurance Policy No. 13490 for Employees
of First Mississippi Corporation and Affiliated Companies;
(b) Triad Chemical Self-Funded Health Care Plan #50221;
(c) Pan American Group Life Insurance Policy No. 22282 for Employees
of Ampro Fertilizer, Inc., Melamine Chemicals, Inc., and Triad
Chemical;
(d) UNUM Group Long Term Disability Insurance Policy No. 53527 for
Employees of First Mississippi Corporation and Named Subsidiaries
or Affiliated Companies;
(e) Home Insurance Company Business Travel Accident Policy
No. GTF 179741 for Employees of First Mississippi Corporation and
Participating Firms;
(f) Life Insurance Company of North America Supplemental AD&D Policy
No. 0K818488 for Employees of First Mississippi Corporation and
Affiliated or Subsidiary Organizations;
(g) Retirement Plan for Employees of Triad Chemical;
(h) Triad Chemical Employees 401(k) Thrift Plan;
(i) Triad Chemical Health/Dependent Care Spending Accounts;
(j) Triad Chemical Health Care Premium Payment Plan;
(k) Community Health Network;
(l) Gulf South HMO.
3. The Credit Union may be a party in interest (as defined in Section 3 of
ERISA) with respect to the Company. The Credit Union maintains an SEP-▇▇▇
for the benefit of each Credit Union employee.
SCHEDULE E
REQUIRED CONSENTS
No consents are required to be given.
SCHEDULE F
ENVIRONMENTAL MATTERS
WITH RESPECT TO THE COMPANY AND TRIAD CHEMICAL, A RESTRICTED SUBSIDIARY, THERE
ARE THE FOLLOWING JUDGMENTS AND PENDING LITIGATION ON ENVIRONMENTAL MATTERS:
1. COMBUSTION, INC., LITIGATION
On July 15, 1986, the first of 17 lawsuits was filed by numerous
plaintiffs in the Twenty-first Judicial District Court, Parish of
▇▇▇▇▇▇▇▇▇▇, State of Louisiana, against Triad Chemical and
approximately 80 to 90 other named defendants. An additional 211
parties have been added as third-party defendants. The plaintiffs'
claims are based on alleged personal injuries and property damages as
a result of exposure to hazardous waste from the Combustion, Inc.,
site in ▇▇▇▇▇▇▇▇▇▇ Parish, Louisiana.
These cases were removed to the United States District Court for the
Middle District of Louisiana, then remanded to State Court, and have
now been removed once again to Federal Court. Plaintiffs have filed a
motion to have the cases remanded to State Court.
The plaintiffs moved for certification of a class for the purpose of
consolidating the pending litigation as one class action suit, and in
January 1991, a state class was certified by the District Court judge.
The Louisiana First Circuit Court of Appeal affirmed the
certification of the class, but reversed the definition of the class
and remanded the issue to the trial court for further determination.
Triad is vigorously defending its position in these proceedings and
considers its defense meritorious.
2. CERCLA SITES
Triad has received and responded to letters issued by the United
States Environmental Protection Agency ("EPA") under Section 104 of
the Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA") relative to the possible disposition of Triad waste at
two disposal sites identified as the Combustion, Inc., site south of
Baton Rouge, Louisiana, and the ▇▇▇▇▇ ▇▇▇▇▇ site in Ascension Parish,
Louisiana. Under CERCLA, generators of waste may be held responsible
for investigation and site cleanup costs.
3. OTHER LEGAL PROCEEDINGS
In addition to the foregoing, the Company and Triad Chemical are the
subject of, or a party to, other various pending legal or threatened
proceedings on environmental matters which the Company believes will
not result in ultimate liability with a material effect on the Trust
Estate.
SCHEDULE G
June 17, 1994
NationsBank of Tennessee, N.A.
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Large Commercial Division
RE: $20,000,000 PRINCIPAL AMOUNT AMENDED AND RESTATED REVOLVING CREDIT AND
TERM LOAN NOTE, SERIES I, FINAL MATURITY JUNE 30, 2001
AND
$30,000,000 PRINCIPAL AMOUNT REVOLVING CREDIT NOTE, SERIES J, FINAL
MATURITY JUNE 30, 1997
Gentlemen:
I refer to the following:
1. Indenture of Mortgage, Deed of Trust, Assignment and Security
Agreement dated as of September 1, 1976, among Mississippi
Chemical Corporation (the "COMPANY") and New Orleans Bank for
Cooperatives (now the National Bank for Cooperatives) and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, as Trustee under certain deeds of trust, and Deposit
Guaranty National Bank, as Trustee (the "TRUSTEE"), (the
"ORIGINAL INDENTURE") as supplemented pursuant to a First
Supplemental Indenture dated as of September 7, 1976, a Second
Supplemental Indenture dated as of September 30, 1976, a Third
Supplemental Indenture dated as of June 28, 1977, a Fourth
Supplemental Indenture dated as of May 1, 1978, a Fifth
Supplemental Indenture dated as of June 1, 1978, a Sixth
Supplemental Indenture dated as of September 1, 1979, a Seventh
Supplemental Indenture dated as of October 1, 1979, an Eighth
Supplemental Indenture dated as of May 15, 1983, a Ninth
Supplemental Indenture dated as of February 23, 1988, a Tenth
Supplemental Indenture dated as of December 26, 1989, an Eleventh
Supplemental Indenture dated as of July 16, 1990, a Twelfth
Supplemental Indenture dated as of August 6, 1992, and a
Thirteenth Supplemental Indenture dated as of July 16, 1993 (the
Original Indenture, as supplemented by each of the above
referenced Supplements is hereinafter referred to as the
"INDENTURE");
2. Series I Revolving Credit/Term Loan Agreement dated as of
August 6, 1992, between the Company and NationsBank of Tennessee
(now NationsBank of Tennessee, N.A., and hereinafter the
"PURCHASER") pursuant to which the Company issued and sold to the
Purchaser, and the Purchaser purchased from the Company, on the
terms and conditions set forth in said Agreement, the Company's
Revolving Credit and Term Loan Note, Series I, having a final
maturity of June 30, 1999;
3. Series J Revolving Credit Agreement dated as of June 17, 1994,
between the Company and the Purchaser (the "LOAN AGREEMENT")
pursuant to which the Company will issue and sell to the
Purchaser, and the Purchaser will purchase from the Company, on
the terms and conditions set forth in said Agreement, the
Company's Revolving Credit Note, Series J, having a final
maturity of June 30, 1997 (the "SERIES J NOTE");
4. the Fourteenth Supplemental Indenture dated as of even date
herewith (the "FOURTEENTH SUPPLEMENTAL INDENTURE") which
supplements and amends the Indenture; and
5. the Fifteenth Supplemental Indenture and Amendment to Series I
Revolving Credit/Term Loan Agreement dated as of even date
herewith (the "FIFTEENTH SUPPLEMENTAL INDENTURE"), pursuant to
which the Company will issue and sell to the Purchaser, and the
Purchaser will purchase from the Company, on the terms and
conditions set forth in the Fifteenth Supplemental Indenture, the
Company's amended and restated Revolving Credit and Term Loan
Note, Series I, having a final maturity of June 30, 2001 (the
"AMENDED AND RESTATED SERIES I NOTE") (the Indenture, as
supplemented by the Fourteenth and Fifteenth Supplemental
Indentures is referred to as the "INDENTURE, AS SUPPLEMENTED").
This letter is an OPINION OF COUNSEL as defined in Section 1.01 of the
Indenture and is executed and delivered pursuant to Sections 2.14(c) and 10.01
of the Indenture. Except as otherwise indicated, all terms herein shall have
the same meaning as in the Series I Revolving Credit/Term Loan Agreement, the
Loan Agreement and the Indenture, as Supplemented.
As counsel to the Company, I have reviewed the Indenture, the Fourteenth
Supplemental Indenture, the Fifteenth Supplemental Indenture, the Loan Agreement
and such other documents as I have considered necessary in order to render this
opinion. In stating my opinion, I have assumed (i) the genuineness of the
signatures of the individuals signing all documents in connection with which
this opinion is rendered on behalf of the parties thereto (other than the
Company), (ii) the authenticity of all documents submitted to the Company as
originals, and (iii) the conformity to authentic original documents of all
documents submitted to the Company as certified, conformed or photostat copies.
Based upon the foregoing and subject to the further assumptions,
qualifications and limitations hereinafter set forth, I am of the opinion that:
1. Assuming that the Fourteenth and Fifteenth Supplemental Indentures are
the legal and valid binding obligation of the Trustee, the Fourteenth and
Fifteenth Supplemental Indentures constitute the legal, valid and binding
agreements of the Company enforceable against the Company in accordance with
their terms.
2. The Loan Agreement has been duly authorized, executed and delivered by
the Company. Assuming that the same has been duly authorized, executed and
delivered by you, and that you have all requisite power and authority, corporate
and otherwise, to enter into and perform your obligations under the Loan
Agreement, the Loan Agreement constitutes the legal, valid and binding agreement
of the Company enforceable against the Company in accordance with its terms.
3. The amended and restated Series I Note and the Series J Note have been
duly authorized, executed, issued and delivered by the Company and have been
duly authenticated by the Trustee. The same constitute the legal, valid and
binding obligation of the Company in accordance with their terms, entitled to
the benefits of the Indenture, as Supplemented. Neither the execution and
delivery of the Loan Agreement, the Fourteenth and Fifteenth Supplemental
Indentures, the amended and restated Series I Note, or the Series J Note, nor
compliance with the provisions of any of them by the Company will conflict with
or result in any breach of any of the provisions of, or constitute a default
under any provision of applicable Mississippi law or the Articles of
Incorporation or Bylaws of, the Company.
4. No consents, approvals or authorizations of or filings with any
federal or state of Mississippi authorities are required in connection with the
execution and delivery by the Company of the Loan Agreement, the amended and
restated Series I Note, the Series J Note, or the Fourteenth and Fifteenth
Supplemental Indentures and the performance by the Company of its obligations
under any of them except for those which have been obtained or made.
5. It is not necessary, in connection with the offer, issue, sale and
delivery of the amended and restated Series I Note or the Series J Note, to
register either of them under the Securities Act of 1933, as amended, or to
qualify the Indenture, as Supplemented, or the Loan Agreement under the Trust
Indenture Act of 1939; provided, however, no opinion is expressed concerning
compliance with the anti-fraud provisions of any federal or state securities
laws. For the purposes of the opinion expressed in this paragraph 5, we have
assumed the accuracy of the representations set forth in Sections 3.1(m) and 3.2
of the Loan Agreement and incorporated by reference into the Series I Revolving
Credit/Term Loan Agreement.
6. All conditions precedent to the creation and issuance of the amended
and restated Series I Note and the Series J Note and to the execution of the
Fourteenth and Fifteenth Supplemental Indentures have been complied with; the
Fourteenth and Fifteenth Supplemental Indentures are in proper form for
execution by the Trustee; and, subject to the provisions of the Indenture, the
Indenture, as Supplemented, secures the amended and restated Series I Note and
the Series J Note by (i) a valid mortgage lien on all interests in the real
property described therein as subject to the lien hereof and (ii) a valid
security interest in the personal property described therein as subject to the
lien thereof.
With respect to the enforceability of any agreement referenced herein, the
opinions expressed herein are subject to the following: (i) the effect of any
applicable bankruptcy insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally; (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); (iii) certain applicable laws or judicial decisions that may
limit, impair or delay the enforceability of certain remedies, waivers or other
provisions of the Loan Agreement, the Series I Revolving Credit/Term Loan
Agreement as amended on the date hereof, the Fourteenth and Fifteenth
Supplemental Indentures, the Series I Note and the Series J Note, but which will
not, in my opinion, substantially interfere with the practical realization of
the benefits intended to be conferred thereby; (iv) limitations on repossession
of property without judicial process requiring that such action be taken without
a breach of the peace; (v) the statutory right of redemption prior to
foreclosure as set forth in Sections 89-1-59 and 75-9-506 of the Mississippi
Code of 1972, as amended; and (vi) the voluntary or involuntary transfer of a
debtor's rights in property or collateral, notwithstanding a provision in an
agreement prohibiting any such transfer or making the transfer a default,
pursuant to Section 75-9-311 of the Mississippi Code of 1972, as amended.
I have made no examination of the title to the property described in the
Indenture, as Supplemented, or to any restrictions in underlying ownership
documents on transfer or pledge, and I express no opinion with respect to the
status of title. It is my understanding that you are relying for such purposes
upon the opinions of (i) ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, with respect to the real
property of the Company located in Yazoo County, Mississippi, (ii) Megehee,
Pitcher, ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, with respect to the real property of the Company
and Mississippi Phosphates Corporation located in ▇▇▇▇▇▇▇ County, Mississippi,
and (iii) McCormick, Forbes, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, with respect to title to real
property of the Company and Mississippi Potash, Inc., located in Lea and Eddy
Counties, New Mexico.
This opinion is solely for your benefit, for the benefit of your special
counsel, and for the benefit of Deposit Guaranty National Bank as Trustee under
the Indenture in connection with the transaction referred to herein and may not
be quoted or relied on by any other person or used for any other purpose or any
other transaction, without my prior written consent.
Respectfully submitted,
MISSISSIPPI CHEMICAL CORPORATION
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and General Counsel
REJ/lgb