Exhibit 99.3
Mississippi Chemical Holdings, Inc.
Guaranty Agreement
DSC Advisors, L.P.,
as Supplemental DIP Collateral Agent and as Investor
DDJ Capital Management, LLC
as Investor
The Investors Party to the
Supplemental Credit Agreement from Time to Time
Ladies and Gentlemen:
Reference is made to that certain Supplemental Post-Petition Credit
Agreement dated as of December 15, 2003 (as the same may be supplemented,
modified or amended from time to time, and any agreement entered into in
substitution therefor or replacement thereof, being hereinafter referred to as
the "Supplemental Credit Agreement") by and among Mississippi Chemical
Corporation, a Mississippi corporation (the "Borrower"), DSC Advisors, L.P., as
Supplemental DIP Collateral Agent (the "Supplemental DIP Collateral Agent"), DSC
Advisors, L.P., as an Investor ("DSC") and DDJ Capital Management, LLC, as an
Investor ("DDJ", and together with DSC, the "Investors"), pursuant to which the
Investors have agreed to maintain and make available to the Borrower Term Loans
(the "Term Loans"), with such Term Loans to be evidenced by the Term Loan Notes
of the Borrower (all such Term Loan Notes, as the same may be supplemented,
modified or amended from time to time, and any promissory notes entered into in
substitution therefor or replacement thereof, being hereinafter referred to
collectively as the "Term Loan Notes" and individually as a "Term Loan Note").
All of the Borrower's indebtedness, obligations and liabilities to the Investors
and/or the Supplemental DIP Collateral Agent under the Supplemental Credit
Agreement and the other Term Loan Documents, including, without limitation, all
such indebtedness, obligations and liabilities evidenced by the Term Loan Notes
and all extensions or renewals of any of the foregoing, are hereinafter
collectively referred to as the "Supplemental Indebtedness". This Guaranty
Agreement, as the same may be supplemented, modified or amended from time to
time, and any agreement entered into in substitution herefor or replacement
hereof, being hereinafter referred to as this "Agreement".
As an inducement to each Investor to accept and enter into the Supplemental
Credit Agreement, and in consideration of the Term Loans to be made by the
Investors to the Borrower under the Supplemental Credit Agreement, the
undersigned (hereinafter referred to as the "Guarantor"), acknowledging that the
Investors have informed the Borrower that the Term Loans would not be made but
for this guarantee, hereby guarantees the full and prompt payment to the
Supplemental DIP Collateral Agent and each of the Investors at maturity (whether
by acceleration, lapse of time or otherwise) and at all times thereafter of
principal of and interest on all Supplemental Indebtedness of the Borrower under
the Supplemental Credit Agreement, and
all extensions or renewals of all or any part thereof and all other
indebtedness, liabilities and obligations of the Borrower to the Investors and
the Supplemental DIP Collateral Agent under the Supplemental Credit Agreement
and/or the other Term Loan Documents. Notwithstanding anything contained in this
Guaranty to the contrary, the amount payable by the Guarantor hereunder
(including without limitation all amounts payable pursuant to the last sentence
of Section 1.5 hereof) shall at no time exceed the Maximum Amount. As used
herein, the term "Maximum Amount" means an amount equal to the remainder of (1)
the fair saleable value of the Guarantor's assets at such time minus (2)
U.S.$1.00.
This Agreement is a continuing guarantee of the liabilities of the Borrower
under the Supplemental Credit Agreement, the Term Loan Notes and the other Term
Loan Documents and the liability of the Guarantor is that of principal debtor as
between the Guarantor and the Supplemental DIP Collateral Agent and the
Investors but that of Guarantor as between it and the Borrower.
The Supplemental DIP Collateral Agent and the Investors shall not be bound
to exhaust their rights against the Borrower previous to making a demand upon
the Guarantor for the payment and the liability of the Guarantor is to arise
first when notice in writing is given by the Supplemental DIP Collateral Agent
or the Investors to the Guarantor of any default under the Supplemental Credit
Agreement or any other Term Loan Document and demand for payment is made under
this Agreement.
Section 1. Terms and Conditions.
Section 1.1. This guaranty of payment by the Guarantor shall be a
continuing, absolute and unconditional guaranty and shall remain in full force
and effect until all Supplemental Indebtedness of the Borrower to the Investors
and the Supplemental DIP Collateral Agent shall be fully paid and satisfied and
all commitments of the Investors under the Supplemental Credit Agreement to
extend credit to or for the account of the Borrower shall have terminated. The
dissolution, liquidation or insolvency (howsoever evidenced) of, or the
institution of bankruptcy or receivership proceedings against the Guarantor or
the Borrower shall not terminate this Agreement.
Section 1.2. The obligations and liabilities of the Guarantor hereunder
shall not be affected or impaired by any irregularity, invalidity or
unenforceability of or in any of the Term Loan Notes or other Term Loan
Documents.
Section 1.3. The obligations and liabilities of the Guarantor hereunder
shall not be affected or impaired by (and the Investors are hereby expressly
authorized to make from time to time without notice to the Guarantor) any sale,
pledge, surrender, compromise, settlement, release, renewal, extension,
indulgence, amendment, alteration, substitution, exchange, change in,
modification or other disposition of any of the Supplemental Credit Agreement,
the Term Loan Notes, any other Term Loan Documents, any other guaranty thereof,
or of any security or collateral therefor.
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Section 1.4. The obligations and liabilities of the Guarantor hereunder
shall not be affected or impaired by any acceptance by the Supplemental DIP
Collateral Agent or the Investors, or any of them, of any security or collateral
for, or other guarantors upon any of the Supplemental Indebtedness or by any
failure, neglect, omission, delay or partial action on the part of the
Supplemental DIP Collateral Agent or the Investors, or any of them, in the
administration of the Supplemental Indebtedness or to realize upon or protect
any of the Supplemental Indebtedness or any security or collateral therefor, or
to exercise any lien upon or right of appropriation of any moneys, credits or
property of the Borrower possessed by any of the Investors toward the
liquidation of the Supplemental Indebtedness or by any application of payments
or credits thereon or by any other circumstances whatsoever (with or without
notice to or the knowledge of the Guarantor) which may in any manner or to any
extent vary the risk of the Guarantor hereunder or may otherwise constitute a
legal or equitable discharge of a surety or guarantor; it being the purpose and
intent that this guaranty of payment and the obligations and liability of the
Guarantor hereunder shall be absolute and unconditional under any and all
circumstances and shall not be discharged except by payment and performance as
herein provided.
Section 1.5. In order to hold the Guarantor liable hereunder, there shall
be no obligation on the part of any Investor, at any time, to resort for payment
to any person directly liable in respect of the Supplemental Indebtedness or to
any other guaranty, or to any other person, their properties or estates, or to
resort to any collateral, security, property, liens or other rights or remedies
whatsoever, and the Investors shall have the right to enforce this guaranty of
payment irrespective of whether or not other proceedings or steps are pending
seeking resort to or realization upon or from any of the foregoing. The
Guarantor agrees to pay all reasonable out-of-pocket expenses, including court
costs and reasonable attorneys' fees, paid or incurred by the Supplemental DIP
Collateral Agent and the Investors or any of them in endeavoring to collect on
the Supplemental Indebtedness or any part thereof and in enforcing this
Agreement; provided that the amount payable by the Guarantor under this
Agreement shall in no event exceed the Maximum Amount.
Section 1.6. The granting of credit to the Borrower by any Investor from
time to time in addition to the Supplemental Indebtedness under the Supplemental
Credit Agreement without notice to the Guarantor is hereby authorized and shall
in no way affect or impair the obligations and liability of the Guarantor
hereunder.
Section 1.7. The payment by the Guarantor of any amount or amounts under
this guaranty of payment shall not entitle it, either at law, in equity or
otherwise, to any right, title or interest (whether by way of subrogation or
otherwise) in and to any of the Supplemental Indebtedness, or in and to any
security or collateral therefor, or in or to any amounts at any time paid or
payable under or pursuant to any guaranty by any other person of all or part of
Indebtedness, or in and to any amounts theretofore, then or thereafter paid or
applicable to the payment of the Supplemental Indebtedness, howsoever such
payment or payments may arise, until all of the Supplemental Indebtedness has
been fully paid and all obligations of the Investors to extend credit to or for
the benefit of the Borrower shall have terminated or expired.
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Section 1.8. This Agreement may be enforced by all of the Investors acting
jointly or by the Supplemental DIP Collateral Agent acting on its own behalf and
on behalf of the Investors. Any Investor may, without any notice to the
Guarantor, sell, assign or transfer, to the extent permitted in the Supplemental
Credit Agreement, the Supplemental Indebtedness held by it, or any part thereof,
or grant participations therein; and in that event, each and every immediate and
successive assignee, transferee or holder of all or any part of the Supplemental
Indebtedness (but expressly excluding any participant) shall, to the extent
permitted by the first sentence of this Section 1.8, have the right to enforce
this Agreement, by suit or otherwise, for the benefit of such assignee,
transferee or holder (but expressly excluding any participant) as fully as if
such assignee, transferee or holder were herein by name specifically given such
rights, powers and benefits; but each Investor shall have an unimpaired right,
to the extent permitted by the first sentence of this Section 1.8, to enforce
this Agreement for its own benefit or for the benefit of any such participant as
to so much of the Supplemental Indebtedness that it has not sold, assigned or
transferred.
Section 1.9. If any payment applied to any of the Supplemental Indebtedness
is thereafter set aside, recovered, rescinded or required to be returned for any
reason (including, without limitation, the bankruptcy, insolvency or
reorganization of any of the Borrower or any other obligor), the Supplemental
Indebtedness to which such payment was applied shall for the purposes of this
Agreement be deemed to have continued in existence, notwithstanding such
application, and this Agreement shall be enforceable as to such of the
Supplemental Indebtedness as fully as if such application had never been made.
Section 2. Representations and Warranties.
The Guarantor hereby represents and warrants that:
Section 2.1. Organization. The Guarantor is duly organized and validly
existing in good standing under the laws of the jurisdiction of its
organization, and has the power and authority to own its property and assets and
to transact the business in which it is engaged and presently proposes to
engage.
Section 2.2. Authority. The Guarantor has the power and authority to
execute, deliver and carry out the terms and provisions of this Agreement and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement.
Section 2.3. Execution and Delivery; Enforceability. The Guarantor has duly
executed and delivered this Agreement and this Agreement constitutes the legal,
valid and binding agreements of the Guarantor enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law).
Section 2.4. Non-Contravention. Neither the execution, delivery and
performance by the Guarantor of this Agreement nor compliance with the terms and
provisions hereof (i) will contravene any provision of any law, statute, rule,
regulation, order, writ, injunction or decree of
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any court or governmental instrumentality applicable to the Guarantor or its
properties and assets, or (ii) will conflict with or result in any breach of,
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any lien upon any of the property or assets of the Guarantor
pursuant to the terms of its organizational documents (e.g., memorandum and
articles of association or by-laws, or other similar document) or any promissory
note, bond, debenture, indenture, mortgage, deed of trust, credit or loan
agreement, or any other material agreement or other instrument, to which the
Guarantor is a party or by which it or any of its property or assets are bound
or to which it may be subject.
Section 2.5. Approvals. Other than the consent (which has been obtained) to
this Agreement by JPMorgan Chase Bank, as collateral trustee, under that certain
Deed of Charge (Shares and Securities), dated as of November 10, 1998, as
novated by the Novation and Variation of Deed of Charge (Shares and Securities),
dated as of May 7, 2003 (the "Deed of Charge"), and any related agreements, no
order, consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize or is
required as a condition to (i) the execution, delivery and performance by the
Guarantor of this Agreement, or (ii) the legality, validity, binding effect or
enforceability of this Agreement.
Section 2.6. Litigation. There are no actions, suits or proceedings pending
or, to, the knowledge of the Guarantor, threatened with respect to the Guarantor
which question the validity or enforceability of this Guaranty or any of the
other Term Loan Documents executed by it, or of any action to be taken by the
Guarantor pursuant to this Guaranty.
Section 2.7. Ownership of Subsidiaries. The Guarantor is the legal and
beneficial owner of all of the issued and outstanding equity interests of
MissChem (Barbados), SRL, a society organized under the Societies with
Restricted Xxxxxxxxx Xxx, 0000-0 of Barbados ("MissChem Barbados") other than
one quota owned by Mr. Xxxxxxx Xxxx; MissChem Barbados is the legal and
beneficial owner of all of the issued and outstanding equity interests of
MissChem Trinidad Limited, a company organized under the Companies Act, 1995 of
the laws of the Republic of Trinidad and Tobago ("MissChem Trinidad"); and
MissChem Trinidad is the legal and beneficial owner of 50% of the issued and
outstanding equity interests of Point Lisas Nitrogen Limited, f/k/a Farmland
MissChem Limited, a company incorporated under the Companies Ordinance, Chapter
31, No. 1, and continued under the Companies Act Chapter 81:01 of the laws of
the Republic of Trinidad and Tobago ("PLNL").
Section 2.8. Nature of Business. The only business of the Guarantor is
owning and holding the capital stock of MissChem Barbados owned by it; the only
business of MissChem Barbados is owning and holding the capital stock of
MissChem Trinidad owned by it; and the only business of MissChem Trinidad is
owning and holding the capital stock of PLNL owned by it, owning a subordinated
promissory note in the principal amount of U.S.$54,010,869 made by PLNL (the
"PLNL Subordinated Note") and fulfilling its obligations under the Deed of
Charge and the Unanimous Shareholders Agreement.
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Section 2.9. Liabilities. Other than as set forth in the Deed of Charge,
neither the Guarantor nor any of its Subsidiaries has any liabilities that,
either individually or in the aggregate, are material to the Guarantor or any
such Subsidiary.
Section 3. Covenants.
It is understood and agreed that so long as credit is in use or available
under the Supplemental Credit Agreement or any Supplemental Indebtedness remains
unpaid, except to the extent compliance in any case or cases is waived in
writing by the Required Investors:
Section 3.1. Maintenance of Business. The Guarantor shall, and shall cause
each of its Subsidiaries to, preserve and maintain its existence. The Guarantor
shall, and shall cause each of its Subsidiaries to, preserve and keep in force
and effect all licenses, permits and franchises necessary to the proper conduct
of its business.
Section 3.2. Taxes and Assessments. The Guarantor shall duly pay and
discharge, and shall cause each of its Subsidiaries to duly pay and discharge,
all taxes, rates, assessments, fees and governmental charges upon or against it
or its Properties, in each case before the same become delinquent and before
penalties accrue thereon, unless and to the extent that the same are being
contested in good faith and by appropriate proceedings which prevent enforcement
of the matter under contest and adequate reserves are provided therefor.
Section 3.3. Insurance. The Guarantor shall insure and keep insured, and
shall cause each of its Subsidiaries to insure and keep insured, with good and
responsible insurance companies, all insurable Property owned by it which is of
a character usually insured by Persons similarly situated and operating like
Properties against loss or damage from such hazards and risks, and in such
amounts, as are insured by Persons similarly situated and operating like
Properties; and the Borrower shall insure, and shall cause each of its
Subsidiaries to insure, such other hazards and risks (including employers' and
public liability risks) with good and responsible insurance companies as and to
the extent usually insured by Persons similarly situated and conducting similar
businesses.
Section 3.4. Borrowings and Guaranties. The Guarantor shall not, nor shall
it permit any of its Subsidiaries to, issue, incur, assume, create or have
outstanding any Debt, or be or become liable as endorser, guarantor, surety or
otherwise for any Debt, obligation or undertaking of any other Person, or
otherwise agree to provide funds for payment of the obligations of another, or
supply funds thereto or invest therein or otherwise assure a creditor of another
against loss, or apply for or become liable to the issuer of a letter of credit
which supports an obligation of another Person, or subordinate any claim or
demand it may have to the claim or demand of any other Person; provided,
however, that the foregoing shall not restrict nor operate to prevent:
(a) Debt of the Guarantor under this Agreement; and
(b) Obligations and liabilities arising under the Deed of Charge, the
Subordination Agreement, the Shareholders Agreement and the Unanimous
Shareholders Agreement.
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Section 3.5. Liens. The Guarantor shall not, nor shall it permit any of its
Subsidiaries to, create, incur or permit to exist any Lien of any kind on any
Property owned by any such Person; provided, however, that the foregoing shall
not apply to nor operate to prevent (a) Liens granted to the Ex-Im Bank to
secure PLNL's indebtedness to the Ex-Im Bank, and (b) the contractual
restrictions contained in the Shareholders Agreement, the Deed of Charge and the
Unanimous Shareholders Agreement.
Section 3.6. Investments, Acquisitions, Loans and Advances. Other than (a)
investments of the type described in Sections 7.11 of the Supplemental Credit
Agreement, (b) intercompany loans and advances to the Borrower made with income
and profits generated in the ordinary course of business and not with the
proceeds of any liquidating dividend or distribution, (c) investments by the
Guarantor in any of its Subsidiaries, and (d) investments by any Subsidiary in
any of such Subsidiary's Subsidiaries and the PLNL Subordinated Note, the
Guarantor shall not, nor shall it permit any of its Subsidiaries to, directly or
indirectly, make, retain or have outstanding any investments (whether through
purchase of stock or obligations or otherwise) in, or loans or advances to, any
other Person, or acquire all or any substantial part of the assets or business
of any other Person or division thereof.
Section 3.7. Mergers, Consolidations and Sales. The Guarantor shall not,
nor shall it permit any of its Subsidiaries to, be a party to any merger or
consolidation, or sell, transfer, lease or otherwise dispose of all or any part
of its Property, including any disposition of Property as part of a sale and
leaseback transaction, or in any event sell or discount (with or without
recourse) any of its notes or accounts receivable.
Section 3.8. Maintenance of Subsidiaries. The Guarantor shall not assign,
sell or transfer, nor shall it permit any of its Subsidiaries to issue, assign,
sell or transfer, any shares of capital stock of its Subsidiaries; provided,
however, that the foregoing shall not operate to prevent the issuance, sale and
transfer to any person of any shares of capital stock of Subsidiaries solely for
the purpose of qualifying, and to the extent legally necessary to qualify, such
person as a director of such Subsidiary.
Section 3.9. Dividends and Certain Other Restricted Payments. The Guarantor
shall not (a) declare or pay any dividends on or make any other distributions in
respect of any class or series of its capital stock, other than dividends
payable out of income and profits generated in the ordinary course of business
and not in the nature of a liquidating distribution, or (b) directly or
indirectly purchase, redeem, or otherwise acquire or retire any of its capital
stock.
Section 3.10. Compliance with Laws. The Guarantor shall, and shall cause
each of its Subsidiaries to, comply in all material respects with the
requirements of all applicable laws, rules, regulations, ordinances and orders
applicable to or pertaining to its Property or business operations.
Section 3.11. Burdensome Contracts with Affiliates. The Guarantor shall
not, nor shall it permit any of its Subsidiaries to, enter into any contract,
agreement or business arrangement with any of its Affiliates on terms and
conditions which are less favorable to the Guarantor or such Subsidiary than
would be usual and customary in similar contracts, agreements or business
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arrangements between Persons not affiliated with each other, except as provided
in the Subordination Agreement, the Deed of Charge, the Shareholders Agreement
and the Unanimous Shareholders Agreement.
Section 3.12. Change in the Nature of Business. The Guarantor shall not,
nor shall it permit any of its Subsidiaries to, engage in any business or
activity if as a result (a) the general nature of the business of the Guarantor
or any of its Subsidiaries would be changed in any material respect from the
general nature of the business engaged in by it as of the date hereof, or (b)
any representation or warranty contained in Section 2 of this Guaranty would no
longer be true and correct.
Section 3.13. No Restrictions. Except as provided herein, in the Deed of
Charge, the Shareholders Agreement, the Unanimous Shareholders Agreement and in
the Credit Agreement, the Guarantor shall not, nor shall it permit any of its
Subsidiaries to, directly or indirectly create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of the Guarantor or any of its Subsidiaries to: (a) pay dividends
or make any other distribution on any of the Guarantor's Subsidiaries' capital
stock or other equity interests owned by the Guarantor or any of its other
Subsidiaries, (b) pay any indebtedness owed to the Borrower or any of the
Guarantor's Subsidiaries', (c) make loans or advances to the Guarantor or any of
the Guarantor's Subsidiaries, (d) transfer any of its Property to the Guarantor
or any of its other Subsidiaries, or (e) guarantee the Indebtedness pursuant to
this Agreement.
Section 3.14. Leases. The Guarantor will not, and will not permit any of
its Subsidiaries to, enter into any rental agreement or lease as lessee of real
or personal property.
Section 3.15. Sale and Leaseback Transactions. Neither the Guarantor nor
any of its Subsidiaries shall, directly or indirectly, enter into any
arrangement with any Person providing for the Guarantor or any of its
Subsidiaries to lease or rent Property that the Guarantor or such Subsidiary has
or will sell or otherwise transfer to such Person.
Section 3.16. Guaranty as a Liability. For the purposes of determining the
solvency of the Guarantor under the International Business Companies' Act, Cap.
291 of the Laws of the British Virgin Islands this Guarantee shall be treated as
a liability and shall be shown as a liability on the books of account of the
Guarantor.
Section 4. Definitions.
The terms hereinafter set forth when used herein shall have the following
meanings:
"Affiliate" shall mean, for any Person, any other Person (including all
directors and officers of such Person) that directly or indirectly controls, or
is under common control with, or is controlled by, such Person. As used in this
definition, "control" means the power, directly or indirectly, to direct or
cause the direction of management or policies of a Person (through ownership of
voting securities, by contract or otherwise), provided that, in any event for
purposes of the definition any Person that owns directly or indirectly 10% or
more of the
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securities having ordinary voting power for the election of directors of a
corporation or 10% or more of the partnership or other ownership interests of
any other Person will be deemed to control such corporation or other Person.
"Capitalized Lease" shall mean any lease or obligation for rentals which is
required to be capitalized on a consolidated balance sheet of a Person and its
Subsidiaries in accordance with generally accepted accounting principles,
consistently applied.
"Capitalized Lease Obligation" shall mean the present discounted value of
the rental obligations under any Capitalized Lease.
"Debt" of any Person shall mean as of any time the same is to be
determined, the aggregate (without duplication) of:
(a) all indebtedness, obligations and liabilities with respect to
borrowed money;
(b) all guaranties, endorsements (other than any liability arising out
of the endorsement of items for deposit or collection in the ordinary
course of business) and other contingent obligations in respect of, or any
obligations to purchase or otherwise acquire, indebtedness or securities of
others or to purchase Property of others at the request or demand of any
creditor of such Person;
(c) all reimbursement and other obligations with respect to letters of
credit (whether drawn or undrawn), banker's acceptances, customer advances
and other extensions of credit whether or not representing obligations for
borrowed money;
(d) the aggregate amount of Capitalized Lease Obligations;
(e) all indebtedness and liabilities secured by any lien or any
security interest on any Property or assets of such Person, whether or not
the same would be classified as a liability on a balance sheet; and
(f) all indebtedness, obligations and liabilities representing the
deferred purchase price of Property, excluding trade payables incurred in
the ordinary course of business not more than 90 days past due;
all computed and determined on a consolidated basis for such Person and its
Subsidiaries after the elimination of intercompany items in accordance with
generally accepted accounting principles consistently applied.
"Ex-Im Bank" means the Export-Import Bank of the United States.
"Lien" means any mortgage, lien, security interest, pledge, charge or
encumbrance of any kind in respect of any Property, including the interests of a
vendor or lessor under any conditional sale, Capital Lease or other title
retention arrangement.
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"Person" shall mean and include any individual, sole proprietorship,
partnership, limited liability company, joint venture, trust, unincorporated
organization, association, corporation, institution, entity, party or government
(whether national, federal, state, county, city, municipal, or otherwise,
including, without limitation, any instrumentality, division, agency, body or
department thereof).
"Property" shall mean all assets and properties of any nature whatsoever,
whether real or personal, tangible or intangible, including without limitation
intellectual property.
"Required Investors" shall mean, at any time, the Investors holding at
least 75% of the aggregate outstanding principal amount of the Term Loans;
provided that the Required Investors shall always include DSC and DDJ.
"Shareholders Agreement" means the Amended and Restated Shareholders
Agreement dated November 10, 1998, among the Borrower, the Guarantor and its
Subsidiaries, Xxxx Mineral Services, LLC, as successor to Farmland Industries,
Inc., and certain of its Subsidiaries, and PLNL.
"Subordination Agreement" means the Subordination Agreement dated as of
November 10, 1998, among the Ex-Im Bank, MissChem Trinidad, and PLNL.
"Subsidiary" shall mean, for any Person, any corporation or other entity of
which more than fifty percent (50%) of the outstanding stock or comparable
equity interests having ordinary voting power for the election of the Board of
Directors of such corporation or similar governing body in the case of a
non-corporation (irrespective of whether or not, at the time, stock or other
equity interests of any other class or classes of such corporation or other
entity shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned by such Person or by
one or more of its Subsidiaries.
"Term Loan" means any loan made by any of the Investors pursuant to the
Supplemental Credit Agreement.
"Term Loan Documents" shall have the meaning specified in Section 4.1 of
the Supplemental Credit Agreement.
"Unanimous Shareholders Agreement" means the Unanimous Shareholders
Agreement dated as of November 10, 1998, among MissChem Trinidad, MissChem
Barbados and JPMorgan Chase Bank.
Section 5. Miscellaneous.
Section 5.1. Notices. Unless otherwise expressly provided herein, all
communications provided for herein shall be in writing or by telecopy and shall
be deemed to have been given or made when served personally, when an answer back
is received in the case of notice by telecopy or 2 days after the date when
deposited in the United States mail addressed if to the Guarantor to X.X. Xxx
000, Xxxxx Xxxx, Xxxxxxxxxxx 00000, Attention: Corporate Secretary with a copy
to
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the Ex-Im Bank, 000 Xxxxxxx Xxxxxx XX, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxx
XxXxxx Xxxxxx, Managing Director; if to the Supplemental DIP Collateral Agent at
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxxxx Xxxxx; and if to any of the Investors, at the address for each Investor
set forth in the Supplemental Credit Agreement; or at such other address as
shall be designated by any party hereto in a written notice to each other party
pursuant to this Section 2.1.
Section 5.2. Jurisdiction; Venue. The Guarantor hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Northern
District of Illinois and of any Illinois court sitting in Chicago for Purposes
of all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. The Guarantor irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
Section 5.3 Appointment of Agent for Service of Process. The Guarantor
consents to the service of process by registered or certified mail out of any
such court or by service of process on CT Corporation System, 000 X. XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 which the Guarantor hereby irrevocably appoints
as its agent to receive, for it and on its behalf, service of process in any
action or proceeding in Illinois. Such service shall be deemed completed on
delivery to such process agent (whether or not it is forwarded to and received
by the undersigned) provided that notice of such service of process is given by
the Supplemental DIP Collateral Agent to the Guarantor. If, for any reason, such
process agent ceases to be able to act as such or no longer has an address in
Illinois, the undersigned irrevocably agrees to appoint a substitute process
agent acceptable to the Supplemental DIP Collateral Agent and to deliver to the
Supplemental DIP Collateral Agent a copy of the new agent's acceptance of that
appointment within 30 days. Nothing contained herein shall affect the right of
the Supplemental DIP Collateral Agent to serve legal process in any other manner
or to bring any proceeding hereunder in any jurisdiction where the Guarantor may
be amenable to suit.
Section 5.4. Waiver of Jury Trial. The Guarantor and, by accepting the
benefits of this Agreement, the Supplemental DIP Collateral Agent and each
Investor hereby irrevocably waives any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
Section 5.5. Governing Law; Successors and Assigns. This Agreement shall be
construed according to the internal laws of the state of Illinois, in which
State it shall be performed by the Guarantor. This Agreement and every part
hereof shall be binding upon the Guarantor and upon its legal representatives,
successors and assigns of each and all of the undersigned, and shall inure to
the benefit of the Investors and their respective successors, legal
representatives and assigns.
Section 5.6. Entire Agreement. This writing is intended by the parties to
be a complete and final expression of this Agreement and is also intended as a
complete and exclusive statement of the terms of that agreement. No course of
dealing, course of performance or trade
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usage, and no parole evidence of any nature, shall be used to supplement or
modify any terms hereof, nor are there any conditions to the full effectiveness
of this Agreement.
Section 5.7. Release of Guarantor. The Guarantor shall not be released from
any of its obligations under this Agreement, and this Section 5.7 may not be
amended, modified or waived, without the prior written consent of all of the
Investors.
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Dated as of December 30, 2003.
Mississippi Chemical Holdings, Inc.
By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Its Director
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