EXHIBIT 4.3
SIXTEENTH SUPPLEMENTAL INDENTURE
This Sixteenth Supplemental Indenture dated as of June 30, 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), Xxxx X. Xxxxxxxx, 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"); a Thirteenth Supplemental
Indenture dated as of July 16, 1993 (the "Thirteenth Supplemental Indenture"); a
Fourteenth Supplemental Indenture dated as of June 17, 1994 (the "Fourteenth
Supplemental Indenture"); and a Fifteenth Supplemental Indenture dated as of
June 17, 1994 (the "Fifteenth Supplemental Indenture") (the Original Indenture,
as supplemented by the First through the Fifteenth 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's Board of Directors has recommended to the Company's
shareholders that the Company cease doing business as a cooperative and
otherwise implement the terms of the Plan described in the Company's Proxy
Statement/Prospectus dated May 27, 1994, a copy of which has heretofore been
provided to the Company's shareholders and to all Noteholders under the
Indenture; and
WHEREAS, as of July 16, 1990, the Company granted to Freeport-McMoRan
Resource Partners, Limited Partnership ("Freeport") an option to purchase the
Company's Xxxxxx County, Florida, property and the underlying phosphate reserves
pursuant to an Agreement for Real Estate Purchase Option (the "Original
Option"); and
WHEREAS, as of July 1, 1993, the Original Option was assigned by Freeport
to IMC-Agrico Company ("IMC-Agrico"), a Delaware general partnership; and
WHEREAS, the Board has authorized the Company to convey certain property to
IMC-Agrico in partial exercise of the Original Option and to enter into the
remaining IMC-Agrico Agreements as defined below, substantially final copies of
which have been heretofore provided to the holders of the Series A Notes,
Series H Notes, Series I Notes, and Series J Notes; and
WHEREAS, the Company and Trustee desire to amend and supplement the
Indenture as hereinafter set forth; and
WHEREAS, this Sixteenth Supplemental Indenture is in substantially the form
approved by the holders of not less than 51% in aggregate unpaid principal
amount of each of the Series A Notes, the Series H Notes, the Series I Notes,
and the Series J Notes, and 51% in aggregate unpaid principal amount of all the
outstanding Notes; and
WHEREAS, this Sixteenth Supplemental Indenture witnesseth that the
Indenture is hereby amended and supplemented as follows:
ARTICLE I
SECTION 1.1. The proviso at the end of the first sentence of paragraph 3
of the Granting Clauses of the Original Indenture, and the second sentence of
such paragraph 3, are hereby deleted in their entirety and the following new
proviso and second sentence are substituted in their stead:
provided, however, that the security interests created in this
paragraph 3 in Commodity Loan Inventory are in all respects
subordinate and inferior to all security interests which the
Company has heretofore granted or may hereafter grant to secure
indebtedness in an amount not to exceed the amount of the
Permitted Lien described in Section 7.01(c). For the purposes of
this Indenture, "Commodity Loan Inventory" means all inventory of
the Company, of every description whatsoever, maintained in the
conduct of the Company's business, whether such inventory is now
existing or hereafter acquired as additional inventory, or as
replacement for existing inventory, consisting of fertilizer,
chemicals, raw materials in the manufacture of fertilizer and
fertilizer materials, fertilizer in the process of mixing, and
liquid and mixed fertilizer and fertilizer in bulk or bags, and
all proceeds and product of said inventory, which secure existing
or future indebtedness in an amount not to exceed the amount of
the Permitted Lien described in Section 7.01(c).
SECTION 1.2. The phrase numbered (ii) in the second paragraph of
exceptions following paragraph 6 of the Granting Clauses of the Original
Indenture (renumbered as paragraph 5 by Section 1.01 of the First Supplemental
Indenture) is hereby deleted in its entirety and the words "intentionally
omitted" are substituted in lieu thereof.
SECTION 1.3. Section 1.01 of the Indenture is hereby amended by including
therein the following definitions which shall be inserted after the definition
of "Florida Property":
"IMC-Agrico Agreements" shall mean (i) a General Warranty
Deed ("Deed") conveying to IMC-Agrico Company ("IMC-Agrico") a
portion equal to approximately 14/67 of the Company's property
and underlying phosphate reserves located in Xxxxxx County,
Florida (the Company's property and underlying phosphate reserves
are hereinafter collectively referred to as the "Florida
Reserves," and the portion of the property conveyed by the Deed
is hereinafter referred to as the "Adjacent Property"), which
Florida Reserves constitute a part of the Florida Property;
(ii) the Agreement for Real Estate Purchase Option between the
Company and IMC-Agrico (the "Purchase Option") granting to
IMC-Agrico the exclusive option to purchase the balance of the
Florida Reserves; (iii) the Agreement for Real Estate Put Option
between the Company and IMC-Agrico (the "Put Option") granting to
the Company the right to put the balance of the Florida Reserves
to IMC-Agrico in the event the Purchase Option expires or is
terminated; and (iv) the Agreement for Real Estate Repurchase
Option between IMC-Agrico and the Company (the "Repurchase
Option") granting to the Company the exclusive option to
repurchase the Adjacent Property, in the event IMC-Agrico fails
to purchase the balance of Florida Reserves through the Purchase
Option or the Put Option.
SECTION 1.4. The phrase numbered (i) in Section 4.05(c) is hereby amended
by deleting the words "less than 30 nor" in the fourth line thereof.
Section 1.5. The phrase numbered (ii) in Section 4.05(c) is hereby amended
by adding the following in the last line thereof immediately after the word
"utilities" and immediately preceding the semicolon:
, and (z) certifying that no Event of Default, or event
which with notice or lapse of time or both would constitute
an Event of Default, shall have occurred and be continuing
SECTION 1.6. Section 4.06 is hereby amended by deleting the words "six
months" wherever they appear and substituting the words "two years" in their
stead.
SECTION 1.7. The period at the end of clause (b) of Section 5.08 is hereby
deleted and replaced by a semicolon and the following new clause (c) is added
immediately thereafter:
(c) notwithstanding the foregoing in this Section 5.08, the
Company shall, if so authorized by its shareholders, effect the
merger described in the Company's Proxy Statement/Prospectus
dated May 27, 1994; thereafter, the surviving company of such
merger, the name of which shall be Mississippi Chemical
Corporation, shall possess all of the rights and be subject to
all obligations of the Company set forth herein and shall
expressly assume in writing all the obligations of the Company
under the Note Purchase Agreements, the Series H Note Purchase
Agreement, the Series I Revolving Credit Loan Agreement, the
Series J Revolving Credit Agreement and this Indenture, and
thereafter all references in this Indenture to the "Company"
shall be deemed references to the surviving corporation named
Mississippi Chemical Corporation.
SECTION 1.8. Section 5.11(b)(i)(A) of the Original Indenture, as
previously amended, is hereby amended by deleting the same in its entirety and
substituting the following in its stead:
(A) create, incur, assume or suffer to exist any Lien upon
any of the Florida Property (other than Permitted Liens and any
Lien created by or resulting from the execution or performance of
the IMC-Agrico Agreements or the sale of the Florida Reserves
pursuant to the IMC-Agrico Agreements) and will promptly pay and
discharge all taxes, assessments and governmental charges or
levies and all lawful claims of whatever kind on or in respect
thereof, which if unpaid, might become or result in any Lien on
the Florida Property, or
SECTION 1.9. Section 5.11(b)(i)(B) of the Original Indenture, as
previously amended, is hereby amended by deleting the same in its entirety and
substituting the following in its stead:
(B) sell, lease, transfer, assign, convey or in any manner
dispose of any of the Florida Property, except: (1) to the
extent that the provisions of Section 4.05 of this Indenture
would so permit, were the Florida Property at the time included
in the Trust Estate and (2) pursuant to the provisions of the
IMC-Agrico Agreements.
SECTION 1.10. Section 5.11(b)(ii) of the Original Indenture, as previously
amended by the Eighth Supplemental Indenture, is hereby deleted in its entirety,
and the following new Section 5.11(b)(ii) is substituted in its stead:
(ii) at such time as the holders of 51% in aggregate
principal amount at the time outstanding of any series of Notes
then outstanding request in writing that the Company subject the
Florida Property to the Lien of this Indenture, the Company
shall, within 30 days thereafter, execute and deliver to the
Trustee (and to a co-trustee domiciled in Florida if then so
required by Florida law) in recordable form under the laws of
Florida, and record or file, such mortgages, deeds of trust,
financing statements and security agreements, each in form and
substance satisfactory to the holders of 51% of the aggregate
principal amount of the Notes then outstanding, necessary or
advisable with respect to all of its right, title and interest in
and to the Florida Property specifically subject to the rights of
IMC-Agrico under the IMC-Agrico Agreements and shall execute,
deliver and record or file all other documents (including but not
limited to an indenture supplemental to this Indenture, policies
of title insurance and/or an Opinion or Opinions of Counsel with
respect to the title of the Company thereto and such other
documents as the Trustee may require), each in form and substance
satisfactory to the holders of 51% of the aggregate principal
amount of the Notes then outstanding, in order to subject the
Florida Property to the Lien of this Indenture or, with the
consent of the holders of 51% of the aggregate principal amount
of the Notes of each series then outstanding, to subject to the
Lien of this Indenture an amount of the Florida Property equal to
the then outstanding principal amount of the Notes multiplied by
a fraction, the numerator of which shall be the then fair market
value of the Florida Property (determined in a manner
satisfactory to the holders of the aforesaid percentages of the
Notes of each series then outstanding) and the denominator of
which shall be the then fair market value (determined as
aforesaid) of all property (real, personal or mixed) then subject
to the Lien of this Indenture, subject only to Permitted Liens,
and the Trustee shall thereupon be empowered on behalf of the
Company to, and shall promptly, record or file such mortgages,
deeds of trust, financing statements and security agreements in
such offices in the State of Florida as shall be necessary or
advisable under the circumstances in order fully to subject such
property to the Lien of this Indenture, and no consent of or
further act by the Company shall be necessary in connection
therewith; and
SECTION 1.11. Sections 5.11(c) and (d), added to the Original Indenture by
the Eleventh Supplemental Indenture, are hereby deleted in their entirety.
SECTION 1.12. Section 5.16, added to the Original Indenture by the Tenth
Supplemental Indenture, is hereby amended by deleting the words "as now in
effect" in the eighth and ninth lines thereof and substituting the words "as in
effect on the effective date of the Sixteenth Supplemental Indenture" in their
stead.
SECTION 1.13. Section 5.17, added to the Original Indenture by the Twelfth
Supplemental Indenture, is hereby amended by deleting the words "as now in
effect" in the ninth line thereof and substituting the words "as in effect on
the effective date of the Sixteenth Supplemental Indenture" in their stead.
SECTION 1.14. Section 5.18, added to the Original Indenture by the
Fourteenth Supplemental Indenture, is hereby amended by deleting the words "as
now in effect" in the eleventh line thereof and substituting the words "as in
effect on the effective date of the Sixteenth Supplemental Indenture" in their
stead.
SECTION 1.15. Section 6.02 of the Original Indenture is hereby amended by
the deletion of the words "any present or future Commodity Loan Inventory" in
clause (ii) in the fourteenth line thereof and substituting the words
"intentionally omitted" in their stead.
SECTION 1.16. Section 7.01 of the Original Indenture is hereby amended by
deleting clause (c) in its entirety and substituting the following new clause
(c) in its stead:
(c) Liens on Commodity Loan Inventory securing indebtedness
of the Company in an amount not to exceed $15,000,000.
SECTION 1.17. Section 7.01 of the Original Indenture, as amended by the
Eighth Supplemental Indenture, is hereby amended by deleting clause (k) in its
entirety and substituting the following new clause (k) in its stead:
(k) Intentionally omitted;
SECTION 1.18. Section 7.05(a) of the Original Indenture, as amended by the
Eighth Supplemental Indenture, is hereby further amended by the addition of the
words "ending on or before June 30, 1994," in the second line thereof
immediately following the word "year" and immediately preceding the words "Net
Tangible Assets".
SECTION 1.19. Section 7.05(b) of the Original Indenture is hereby amended
by the addition of the words "ending on or before June 30, 1994," in the first
line thereof immediately following the words "fiscal year" and immediately
preceding the words "Net Tangible Assets".
SECTION 1.20. Section 7.05(c) of the Original Indenture is hereby amended
by the addition of the words "with respect to fiscal years ending on or before
June 30, 1994," in the second line thereof immediately following "7.05(b)" and
immediately preceding the words "the Company".
SECTION 1.21. Section 7.05 of the Original Indenture is hereby further
amended by the addition of the following new Section 7.05(d) at the end thereof:
(d) In fiscal years beginning on or after July 1, 1994, the
Company shall not directly or indirectly pay or declare a cash
dividend, or make a cash purchase of treasury stock (i) if an
Event of Default shall have occurred and be continuing, (ii) if
the payment of such a dividend or cash purchase price for
treasury stock would result in an Event of Default, or (iii) if
Net Tangible Assets do not exceed 166% of the aggregate unpaid
principal amount of Secured Funded Debt then outstanding.
SECTION 1.22. Section 7.09 of the Original Indenture is hereby deleted in
its entirety and the following new Section 7.09 is substituted in its stead:
The Company will engage primarily in the business of
manufacturing and distributing fertilizer and in such other
businesses as are reasonably related or incidental thereto,
including but not limited to operations vertically or
horizontally integrated therewith. In addition, the Company may
invest and/or engage in lines of business unrelated to fertilizer
if the sum of (a) the aggregate assets of the unrelated lines of
business on the consolidated balance sheet of the Company and its
Restricted Subsidiaries, plus (b) all contingent contractual
liabilities of the Company and its Restricted Subsidiaries for
the liabilities and other direct or indirect obligations of such
unrelated lines of business does not represent more than 10% of
the total assets of the Company and its Restricted Subsidiaries.
SECTION 1.23. Article Seven-A, added to the Original Indenture by the
Tenth Supplemental Indenture, is hereby amended by deleting the words "as in
effect on December 26, 1989" in the fifth line thereof and substituting the
words "as in effect on the effective date of the Sixteenth Supplemental
Indenture" in their stead.
SECTION 1.24. Article Seven-B, added to the Original Indenture by the
Twelfth Supplemental Indenture, is hereby amended by deleting the words "as in
effect on August 6, 1992" in the fifth line thereof and substituting the words
"as in effect on the effective date of the Sixteenth Supplemental Indenture" in
their stead.
SECTION 1.25. Article Seven-C, added to the Original Indenture by the
Fourteenth Supplemental Indenture, is hereby amended by deleting the words "as
in effect on June 9, 1994" in the fifth line thereof and substituting the words
"as in effect on the effective date of the Sixteenth Supplemental Indenture" in
their stead.
ARTICLE 2
MISCELLANEOUS PROVISIONS
SECTION 2.01. Except as supplemented and amended by this Sixteenth
Supplemental Indenture, all the covenants, agreements, terms and stipulations
contained in the Indenture, as heretofore in effect, shall continue in full
force and effect.
SECTION 2.02. This Sixteenth 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 Sixteenth 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/ Xxxxx Truly
By: /s/ Xxxxxxx X. Xxxxxxx Assistant General Counsel
Corporate Secretary
(CORPORATE SEAL)
ATTEST: DEPOSIT GUARANTY NATIONAL BANK,
as Trustee
Signed and acknowledged
in the presence of:
By: /s/ Xxxxx X. Xxxxxxxxx
By: /s/ Xxxxxx X. Xxxxxx Vice President and Trust
Assistant Trust Officer 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 Xxxxx Truly and Xxxxxxx X. Xxxxxxx, 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/ Xxxxx X. Xxxxxxx
Notary Public
My Commission expires:
May 20, 1997
(Notarial Seal)
STATE OF MISSISSIPPI
COUNTY OF XXXXX
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 Xxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxx, 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/ Xxxx X. Xxxxxx
Notary Public
My Commission expires:
Feb. 18, 1996
(Notarial Seal)
