FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT,
ACKNOWLEDGEMENT AND WAIVER
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment"), dated
as of March 1, 2004 by and among MISSISSIPPI POTASH, INC., a
Debtor-in-Possession and a Mississippi corporation ("MPI"), XXXX XXXXXX, INC., a
Debtor-in-Possession, a Mississippi corporation and a direct wholly owned
subsidiary of MPI ("EPI" and, together with MPI, "Sellers"), INTREPID MINING NM
LLC, a New Mexico limited liability company ("IMNM"), and XX XXXXXX LLC, a New
Mexico limited liability company ("HBLLC," and, together with IMNM, "Buyers"),
amends that certain Asset Purchase Agreement (the "Asset Purchase Agreement"),
dated as of November 26, 2003 by and among Sellers and Buyers. Capitalized terms
used herein and not otherwise defined shall have the meanings specified in the
Asset Purchase Agreement.
WHEREAS, the parties hereto desire to amend certain provisions of the Asset
Purchase Agreement and the Disclosure Schedules thereto to, among other things,
address certain rights-of-way, revise the required Closing deliveries and to
include certain provisions concerning the Supplemental DIP Guarantee Release (as
defined below).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth herein and in the Asset Purchase Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Amendment of Section 1 (i) Section 1 of the Asset Purchase Agreement
is hereby amended to include the following definition:
"'Supplemental DIP Release' means the release and
termination of all Encumbrances on the Transferred Assets imposed
by the lenders pursuant to the Supplemental Post-Petition Credit
Agreement (the "Supplemental Post-Petition Agreement") dated as
of December 15, 2003, among MissChem, each of the parties
executing the Supplemental Post-Petition Agreement under the
heading "Guarantors," each of the parties executing the
Supplemental Post-Petition Agreement under the heading
"Investors," and DSC Chemicals, L.P., as collateral agent for the
Investors, as such agreement may be amended from time to time."
(ii) Section 1 of the Asset Purchase Agreement is hereby
amended to modify the definitions of "Bank Guaranty Release" and
"DIP Guaranty Release" to conform such definitions to the
definition of Supplemental DIP Release above, which definitions
shall be renamed the "Bank Release" and the "DIP Release."
(iii) Section 1 of the Asset Purchase Agreement is hereby
amended to add the following clause (iv) to the definition of
"Excluded
Records": "(iv) any records for which transfer is prohibited by
the Health Insurance Portability and Accountability Act of 1996
("HIPAA")."
2. Amendment of Section 3.3. (i) The phrase "not more than five (5) and
not less than three (3) Business Days" beginning in the second line of Section
3.3(a) of the Asset Purchase Agreement is hereby deleted and replaced with the
phrase "not more than three (3) and not less than two (2) calendar days."
(ii) The phrase "Not later than two (2) Business Days" beginning in
the first line of Section 3.3(b) of the Asset Purchase Agreement is hereby
deleted and replaced with the phrase "not more than three (3) and not less than
one (1) calendar days."
3. Amendment of Section 4.2(a). (i) Section 4.2(a)(vi) is hereby amended
and restated in its entirety as follows:
"(vi) the Bank Release;"
(ii) Section 4.2(a)(vii) is hereby amended and restated in its
entirety as follows:
"(vii) the DIP Release;"
(iii) Section 4.2(a) of the Asset Purchase Agreement is hereby amended
to add the following clause (xiii):
"(xiii) the Supplemental DIP Release."
(iv) Section 4.2(a)(viii) of the Asset Purchase Agreement is hereby
amended and restated in its entirety as follows:
"(viii) [intentionally deleted]"
(v) Section 4.2(a)(xii) of the Asset Purchase Agreement is hereby
amended and restated in its entirety as follows:
"(xii) the Records (other than the Excluded Records) to the
extent that such Records are located at facilities on the Real Property;"
4. Amendment of Section 4.2(b). Section 4.2(b)(v) of the Asset Purchase
Agreement is hereby amended and restated in its entirety as follows:
"(v) [intentionally deleted]"
5. Amendment of Section 7.9. The phrase "At least three (3) Business Days
prior to the Closing Date, IMNM shall offer" beginning in the first line of
Section 7.9 of the Asset Purchase Agreement is hereby deleted and replaced with
the phrase "By the end of the first Business Day prior to the Closing Date, IMNM
shall have offered."
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6. Amendment of Section 9.9. Section 9.9 of the Asset Purchase Agreement
is hereby amended and restated in its entirety as follows:
"Bank Releases. Sellers shall have delivered to Buyers
copies of:
(a) the Bank Release, the DIP Release and the Supplemental
DIP Release;
(b) executed copies of a recordable affidavit of Xxxx X.
Xxxxx acknowledging that he is trustee under each of the deeds of
trust, mortgage, security agreement and financing statements set
forth on Annex A attached hereto (the "Deeds of Trust") with
evidence attached thereto that Xxxxxx Trust and Savings Bank
tendered its resignation as administrative agent under the
Amended and Restated Credit Agreement dated as of November 15,
2002, among MissChem, Xxxxxx Trust and Savings Bank, individually
and as Administrative Agent, and the banks from time to time
party thereto, as amended;
(c); the release of each of the Deeds of Trust executed by
Xxxx X. Xxxxx as trustee; and
(d) executed copies of the related documents evidencing
the termination of Encumbrances on the Transferred Assets imposed
by the applicable lenders."
7. Amendment of Section 10.6. Section 10.6 of the Asset Purchase
Agreement is hereby amended and restated in its entirety as follows:
"Bank Releases. Sellers shall have received the Bank
Release, the DIP Release and the Supplemental DIP Release and
executed copies of the related documents evidencing the
termination of Encumbrances on the Transferred Assets imposed by
the applicable lenders."
8. Amendment of Section 11.2. (i) Section 11.2 of the Asset Purchase
Agreement is hereby amended to add the following subsections (a) and (c):
"(a) Following the Closing, to the extent that Records are
not located at facilities on the Real Property, Sellers shall
deliver the Records (other than the Excluded Records) to Buyers,
including Records which constitute the financial records of
Sellers with respect to the Business in a digital media format to
the extent such records currently exist in a digital media
format."
"(c) Notwithstanding the foregoing, to the extent Buyers
determine after the Closing that any records in their possession
are Excluded Records not permitted to be transferred to Buyers
pursuant to HIPAA, Buyers shall notify Sellers and, at the
request of Sellers, shall either return such records to Sellers
(at Sellers' expense) or destroy such
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records, and Buyers shall reasonably cooperate with Sellers to
maintain the confidentiality of the information contained in such
records. Nothing in this Section 11.2(c) shall be construed as
imposing any independent obligation of Buyer to comply with HIPAA
with regard to such Excluded Records."
(ii) The existing provisions of Section 11.2 shall not be amended and
shall become subsection (b) thereof.
9. Amendment of Section 11.3. Section 11.3 of the Asset Purchase
Agreement is hereby amended and restated in its entirety as follows:
"Laguna Xxxxxx. At Buyers' expense, Buyers agree to engage
on behalf of Sellers a third party to provide duck hazing
services at Laguna Xxxxxx in the manner currently conducted for
twelve months following the Closing Date and to cooperate with
Sellers to monitor the status of the conditions at Laguna Xxxxxx
to the extent reasonably requested by Sellers."
10. Transfer of Vehicles. Notwithstanding anything in the Asset Purchase
Agreement to the contrary, Buyers and Sellers hereby agree that all vehicles
used or held for use in the Business by either MPI or EPI shall constitute part
of the MPI Transferred Assets.
11. Disclosure Schedule, Section 5.3. Disclosure Schedule, Section 5.3 is
hereby amended and restated to read as set forth on Annex B hereto effective as
of the date of the Asset Purchase Agreement.
12. Disclosure Schedule, Section 5.6. Disclosure Schedule, Section 5.6 is
hereby amended and restated to read as set forth on Annex C hereto effective as
of the date of the Asset Purchase Agreement.
13. Disclosure Schedule, Section 5.8.
Disclosure Schedule, Section 5.8 is hereby amended and restated to read as
set forth on Annex D hereto effective as of the date of the Asset Purchase
Agreement.
13. Disclosure Schedule, Section 5.17. Disclosure Schedule, Section 5.17
is hereby amended and restated to read as set forth on Annex E hereto effective
as of the date of the Asset Purchase Agreement, provided that the parties
acknowledge and agree that Buyers deleted the Eimco Coal and Machinery, Inc.
contract from Schedule 5.17 pursuant to the Asset Purchase Agreement, as
reflected in the Sale Order entered by the Bankruptcy Court on November 12,
2003, and such contract is not an Assumed Contract. The Sellers represent that
the following cure amounts for contracts listed on Schedule 5.17 have been paid
prior to the date of this Amendment: $7,805.55 to DBT America, Inc., $85,908.81
to Xxxxxx Nationwide/Xxxxxxxx, $9,825.65 to Highland Machinery and $180,643.89
to BNSF.
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14. Disclosure Schedule, Section 5.19. Disclosure Schedule, Section 5.19
is hereby amended and restated to read as set forth on Annex F hereto effective
as of the date of the Asset Purchase Agreement.
15. Exhibit A. Exhibit A to the Asset Purchase Agreement is hereby amended
and restated to read as set forth on Annex G hereto effective as of the date of
the Asset Purchase Agreement.
16. Acknowledgment and Satisfaction of Section 7.12. The parties
acknowledge that Buyers have not obtained the final approval of the BLM for the
assignment of the applicable Leases from the applicable Seller to the applicable
Buyer. Sellers hereby acknowledge and agree that Buyers have used their
commercially reasonable efforts to obtain from the BLM the approval for the
assignment of the applicable Leases from the applicable Seller to the applicable
Buyer, and that Buyers have fully performed and complied with all obligations
imposed on them by Section 7.12 of the Asset Purchase Agreement.
17. Acknowledgment and Satisfaction of Section 7.13. Sellers acknowledge
that a written instrument granting the relief set forth in Section 7.13 of the
Asset Purchase Agreement has not been obtained from the PBGC. Buyers hereby
acknowledge and agree that Sellers have used their commercially reasonable
efforts to obtain from the PBGC a written instrument granting such relief and
that Sellers have fully performed and complied with all obligations imposed on
them by Section 7.13 of the Asset Purchase Agreement.
18. Waiver By Buyer of Certain Closing Conditions. Buyers hereby waive (a)
the closing condition set forth in Section 9.6 of the Asset Purchase Agreement
with respect to the requirement that Sellers shall have obtained and delivered
to Buyers the consent of the New Mexico State Land Office regarding assignment
of the state potassium leases described on Disclosure Schedule, Section 5.6(a),
(b) the closing condition set forth in Section 9.6 of the Asset Purchase
Agreement with respect to the Federal and State rights-of-way added to
Disclosure Schedule, Sections 5.6 and 5.3, pursuant to this Amendment, (c) the
closing condition set forth in Section 9.6 of the Asset Purchase Agreement with
respect to the New Mexico Department of Radioactive Material License No.
GA136-22 and the Department of the Treasury - Bureau of Alcohol, Tobacco and
Firearms permit no. 5-NM-015-33-5C-04171 added to Disclosure Schedule, Sections
5.3 and 5.8, pursuant to this Amendment, and (d) the closing condition set forth
in Section 9.10 of the Asset Purchase Agreement.
19. Representation Regarding Bank Release and Trustee under the Deeds of
Trust.
Sellers hereby represent and warrant unto Buyers that Xxxx X. Xxxxx is the
trustee under the Deeds of Trust and is authorized to execute and deliver to
Buyers the releases of each of the Deeds of Trust in recordable form.
20. Counterparts. This Amendment may be executed in one or more
counterparts each of which shall be deemed an original but all of which together
shall constitute but one and the same instrument.
21. Governing Law. This Amendment shall be governed by and construed and
interpreted in accordance with the laws of the State of New York applicable to
agreements made
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and to be performed entirely within such state, including all matters of
construction, validity and performance.
22. Jurisdiction. So long as the Bankruptcy Cases are pending, any
Proceeding between the parties hereto relating to this Amendment or to any
agreement, document or instrument delivered pursuant hereto or in connection
with the transactions contemplated hereby, or in any other manner arising out of
or relating to the transactions contemplated by or referenced in this Amendment
shall be commenced and maintained exclusively in the Bankruptcy Court, and the
parties hereto submit themselves unconditionally and irrevocably to the personal
jurisdiction of such court.
23. Effect of Amendment. Except as amended hereby, the terms and
provisions of the Asset Purchase Agreement shall remain in full force and effect
and are hereby in all respects ratified and confirmed by the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first written above.
MISSISSIPPI POTASH, INC.
Debtor-in-Possession
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: General Counsel
XXXX XXXXXX, INC.
Debtor-in-Possession
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: General Counsel
INTREPID MINING NM LLC
By: /s/ Xxxxxx X. Xxxxxxxxx III
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx III
Title: Manager
XX XXXXXX LLC
By: /s/ Xxxxxx X. Xxxxxxxxx III
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx III
Title: Manager
Annex A
(1) Deed of Trust, Mortgage, Security Agreement and Financing Statement
with Assignment of Rents dated as of April 20, 2000, executed by Mississippi
Potash, Inc. in favor of Xxxx X. Xxxxx, as trustee for the benefit of the
Administrative Agent, recorded with the Eddy County, New Mexico Recorder on
April 28, 2000, under Reception No. 004157, Book 380, Page 283, as amended by
that First Amendment to Deed of Trust and Security Agreement with Assignment of
Rents dated as of November 15, 2002, and recorded with the Eddy County, New
Mexico Recorder on November 21, 2002, under Reception No. 0212833, Book 481,
Page 0721.
(2) Deed of Trust, Mortgage, Security Agreement and Financing Statement
with Assignment of Rents dated as of April 20, 2000, executed by Mississippi
Potash, Inc., in favor of Xxxx X. Xxxxx as trustee for the benefit of the
Administrative Agent, recorded on April 27, 2000, with the Lea County, New
Mexico Recorder under Reception No. 57853, Book 1014, at Page 201, as amended by
that First Amendment to Deed of Trust and Security Agreement with Assignment,
dated as of November 15, 2002, and recorded with the Lea County, New Mexico
Recorder on November 21, 2002, under Reception No. 30291, Book 1188, Page 416.
(3) Deed of Trust, Mortgage, Security Agreement and Financing Statement
with Assignment of Rents dated as of April 20, 2000, executed by Mississippi
Potash, Inc., in favor of Xxxx X. Xxxxx as trustee for the benefit of the
Administrative Agent, recorded on April 27, 2000, with the Lea County, New
Mexico Recorder under Reception No. 57852, Book 1014, at Page 165, as amended by
that First Amendment to Deed of Trust and Security Agreement with Assignment,
dated as of November 15, 2002, and recorded with the Lea County, New Mexico
Recorder on November 22, 2002, under Reception No. 30290, Book 1188, Page 398.
(4) Deed of Trust, Mortgage, Security Agreement and Financing Statement
with Assignment of Rents dated as of April 20, 2000, executed by Mississippi
Potash, Inc. and Xxxx Xxxxxx, Inc., in favor of Xxxx X. Xxxxx as trustee for the
benefit of the Administrative Agent, recorded on April 28, 2000, with the Eddy
County, New Mexico Recorder under Reception No. 004158, Book 380, at Page 324,
as amended by that First Amendment to Deed of Trust and Security Agreement with
Assignment, dated as of November 15, 2002, and recorded with the Eddy County,
New Mexico Recorder on November 21, 2002 under Reception No. 0212834, Book 481,
Page 0747.
A-1
SCHEDULES
Certain schedules to the First Amendment to Asset Purchase Agreement,
Acknowledgement and Waiver included herewith as Exhibit 2.2 have been omitted as
permitted under Item 601(b)(2) of Regulation S-K. A list of the omitted
schedules is set forth below.
Mississippi Chemical Corporation agrees to furnish supplementally to the
Securities and Exchange Commission a copy of any omitted schedule upon request.
Annex B Disclosure Schedule, Section 5.3 Consents and Approvals
Annex C Disclosure Schedule, Section 5.6 Real Property
Annex D Disclosure Schedule, Section 5.8 Permits and Environmental Permits
Annex E Disclosure Schedule, Section 5.17 Contracts and Cure Amounts
Annex F Disclosure Schedule, Section 5.19 Water Rights
Annex G Schedule of Permitted Encumbrances
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