EXHIBIT 10.10
AMENDMENT NO. 3 OF AGREEMENT
This Amendment No. 3 of Agreement ("Amendment No. 2") is effective as of
January 1, 1995, between OFFICE CHERIFIEN DES PHOSPHATES ("OCP") and MISSISSIPPI
PHOSPHATES CORPORATION ("MPC").
WHEREAS, MPC and OCP are parties to that certain Agreement with an
Effective Date of September 15, 1991, for the sale and purchase of all MPC's
requirements of phosphate rock at its Pascagoula Plant ("Agreement"); and
WHEREAS, the Agreement has heretofore been amended by Amendment No. 1
effective as of July 1st, 1992, and Amendment No. 2 effective as of July 1st,
1993; and
WHEREAS, OCP and MPC desire to further amend the Agreement as hereinafter
set forth;
NOW, THEREFORE, MPC and OCP hereby agree as follows:
1. Article IX of the Agreement is hereby amended by deleting the first
paragraph thereof in its entirety and inserting in its place the following:
In the event that MPC sells to a purchaser all or substantially all of
the assets of the Pascagoula Plant, OCP shall be entitled to receive
fifty percent (50%) of the excess of (i) the difference between
(x) the purchase price payable by the purchaser of all or
substantially all of the assets of the Pascagoula Plant and (y) the
"fair market value" (determined in accordance with the provisions of
Article XII) of the 1995 Unloading System Project, as described and
defined in Exhibit E hereto, determined pursuant to Article XII hereof
over (ii) the difference between (a) the then current book value of
the assets to be purchased and (b) the then current book value of the
1995 Unloading System Project.
2. The Agreement is hereby amended by adding thereto a new Article XII which
shall read in its entirety as follows:
ARTICLE XII
If the purchase and sale of phosphate rock hereunder is to be
discontinued as a result of a sale by MPC of substantially all of the
assets of the Pascagoula Plant, then MPC shall pay to 0CP an amount of
money determined by multiplying (i) the "fair market value"
(determined in accordance with the further provisions of this
Article XII) of the "1995 Unloading Systyem Project" times (ii) a
fraction, the numerator of which is the total of all principal
payments made with respect to the indebtedness incurred by MPC to
finance the 1995 Unloading System Project prior to the discontinuance
of the purchase and sale of phosphate rock hereunder, and the
denominator of which is the total aggregate principal amount of the
indebtedness incurred by MPC to finance the 1995 Unloading System
Project. The fair market value of the 1995 Unloading System Project
shall be determined based on good-faith negotiations between the
parties hereto; provided, however, if the parties are unable to reach
agreement on the fair market value of the 1995 Unloading System
Project within thirty (30) days following the day MPC first advises
OCP that the purchase and sale of phosphate rock hereunder is to be
discontinued as a result of a sale of the Pascagoula Plant, each party
shall promptly select an independent appraiser to determine on their
behalf such fair market value. The two appraisers so selected shall
render their determinations within forty-five (45) days after the day
MPC first advises OCP that the purchase and sale of phosphate rock
hereunder is to be discontinued as a result of a sale of the
Pascagoula Plant, and the arithmetic average of their respective
determinations shall be the fair market value of the 1995 Unloading
System Project for purposes of this Article XII and shall be final and
binding on both parties. The fair market value of the 1995 Unloading
System Project, whether the same shall be determined by negotiations
of by the appraisers, shall be determined on the basis of, and shall
be an amount equal to, the proportionate share of the fair market
value of the Pascagoula Plant (determined in the same manner and at
the same time that the fair market value of the 1995 Unloading System
Project is determined) which is directly attributable to and comprised
of the 1995 Unloading System Project.
3. The Agreement is hereby amended by deleting the current Exhibit B and
inserting in lieu thereof the revised Exhibit B which is attached as Schedule 1
to this Amendment No. 3.
4. The Agreement is hereby amended by adding thereto Exhibit E which is
attached as Schedule 2 to this Amendment No. 3.
5. Except as specifically set forth in this Amendment No. 3, all of the terms
and conditions of the Agreement, as heretofore amended, shall continue in full
force and effect.
6. All capitalized terms used in this Amendment No. 3 and not otherwise
defined herein shall have the meanings set forth in the Agreement.
IN WITNESS WHEREOF, MPC and OCP have caused this Amendment No. 3 to be duly
executed as of the first day of January 1995.
MADE OUT IN DUPLICATE ON FEBRUARY 22ND, 1995
MISSISSIPPI PHOSPHATES CORPORATION OFFICE CHERIFIEN DES PHOSPHATES
By: /s/ Xxxxxxx X. XXXX By: /s/ Xxxxxxx XXXXXX
President Director-General
SCHEDULE 1 TO AMENDMENT NO. 3 OF AGREEMENT
EXHIBIT B
(Confidential treatment has been requested) with respect to each Contract
Year shall be determined by dividing (i) the difference between (x) the sum of
(a) (confidential treatment has been requested) and (b) the total of all
payments of principal and interest made during such Contract Year with respect
to indebtedness incurred by MPC to finance the cost of the 1995 Unloading System
Project and (y) the total aggregate dollar amount of all reductions to the
(confidential treatment has been requested) during such Contract Year calculated
under paragraph 13 of the Sale Contract Addendum for the first Contract Year
dated as of October 9, 1991, by (ii) the number of (confidential treatment has
been requested) hereunder during such Contract Year. The determination of
(confidential treatment has been requested) for each Contract Year shall be made
as soon as practicable, but not later than thirty (30) days after the end of
each Contract Year.
SCHEDULE 2 TO AMENDMENT NO. 3 OF AGREEMENT
EXHIBIT E
THE 1995 UNLOADING SYSTEM PROJECT
The 1995 Unloading System Project shall consist of all of the new equipment
and facilities and all improvements and modifications to the existing phosphate
rock unloading system at the Pascagoula Plant which are assembled, constructed
and installed in order to enable the Pascagoula Plant to receive deliveries of
phosphate rock from "PANAMAX" class vessels. The proposed installation includes
two (2) Timstar continuous unloading devices, each designed for an instantaneous
unloading rate of six hundred (600) tons per hour. The proposed installation
shall also include such additional improvements to the existing dock area as are
required in connection with the 1995 Unloading System Project.
It is anticipated that the 1995 Unloading System Project shall be acquired
and all work in connection therewith shall be performed during the Contract Year
ending June 30, 1995. The estimated cost of the 1995 Unloading System Project
is Four Million Dollars ($4,000,000). It is expected that MPC will finance the
1995 Unloading System Project with monies borrowed from MCC or from a commercial
bank. The principal sum of such indebtedness shall be repaid in twenty (20)
equal consecutive quarterly installments beginning on the first day of the
calendar quarter following completion of the 1995 Unloading System Project.
Accrued interest on such indebtedness shall be paid on the same dates as
principal payments.
