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EXHIBIT 10.2
AMENDMENT NO. 1
Dated as of August 20, 1996
to
LEASE AGREEMENT
Dated as of June 29, 1995
between
Trinidad Ammonia Company, Limited Partnership
as Lessor
and
Arcadian Fertilizer, L.P.
as Lessee
This Amendment has been manually executed in 8 counterparts, numbered
consecutively from 1 through 8, of which this is No. 2. To the extent,
if any, that this Amendment constitutes chattel paper (as such term is
defined in the Uniform Commercial Code as in effect in any
jurisdiction), no security interest in this Amendment may be created or
perfected through the transfer or possession of any counterpart other
than the original executed counterpart which shall be the counterpart
identified as counterpart No. 1.
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Amendment No. 1 dated as of August 20, 1996 to Lease Agreement
("Amendment No. 1"), dated as of June 29, 1995, between Trinidad Ammonia
Company, Limited Partnership, a Delaware limited partnership ("Lessor"), and
Arcadian Fertilizer, L.P., a Delaware limited partnership ("Lessee"), amending
the Lease Agreement referred to below.
WHEREAS, Lessor and Lessee have heretofore entered into an Lease
Agreement, dated as of June 29, 1995 (the "Lease Agreement"); and
WHEREAS, Lessor and Lessee wish to amend the Lease Agreement as
hereinafter provided;
NOW, THEREFORE, Lessor and Lessee hereby agree that the Lease
Agreement is amended as follows:
1. The definition of "Cash Reserve Requirement Amount" in
Section 1 of the Lease Agreement is amended to read in its entirety as follows:
"'Cash Reserve Requirement Amount' means an amount equal
to the quotient of $13,250,000 divided by the number of whole
semi-annual periods between the Cash Reserve Account Commencement
Date and the date which is three months before the first Basic
Rent Payment Date in the last month of the Initial Term hereof."
2. Paragraph (s) of Section 2 of the Lease Agreement is
hereby amended to delete the amount "$30,000,000" and to replace such amount
with the amount "$31,800,000".
3. Exhibit E to the Lease Agreement is hereby amended to read
in its entirety in the form attached hereto and made a part hereof as Annex I.
4. This Amendment No. 1 may be executed in several
counterparts, each of which when executed and delivered shall be deemed an
original and all of which counterparts, taken together, shall constitute but
one and the same Amendment No. 1.
5. This Amendment No. 1 shall in all respects be governed by,
and construed in accordance with, the laws of the State of New York, including
all matters of construction, validity and performance.
6. Except as provided herein, all provisions, terms and
conditions of the Lease Agreement shall remain in full force and effect. As
amended hereby, the Lease Agreement is ratified and confirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed as of the date first above written.
Trinidad Ammonia Company, Limited Partnership
By: Trinidad Ammonia Capital, Inc., its General Partner
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXXX
Title: VICE PRESIDENT
SECRETARY AND TREASURER
Arcadian Fertilizer, L.P.
By: Arcadian Corporation, its General Partner
By: /s/ XXXX X. XXXXXX
-------------------------------------
Name: XXXX X. XXXXXX
Title: TREASURER
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ANNEX I
Copy of Letter of Credit to be provided by Rabobank
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AMENDMENT NO. 2
Dated as of August 26, 1996
to
LEASE AGREEMENT
Dated as of June 29, 1995
between
Trinidad Ammonia Company, Limited Partnership
as Lessor
and
Arcadian Fertilizer, L.P.
as Lessee
This Amendment has been manually executed in 8 counterparts, numbered
consecutively from 1 through 8, of which this is No. 2. To the extent,
if any, that this Amendment constitutes chattel paper (as such term is
defined in the Uniform Commercial Code as in effect in any
jurisdiction), no security interest in this Amendment may be created or
perfected through the transfer or possession of any counterpart other
than the original executed counterpart which shall be the counterpart
identified as counterpart No. 1.
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Amendment No. 2 dated as of August 26, 1996 to Lease Agreement
("Amendment No. 2"), dated as of June 29, 1995, between Trinidad Ammonia
Company, Limited Partnership, a Delaware limited partnership ("Lessor"), and
Arcadian Fertilizer, L.P., a Delaware limited partnership ("Lessee"), amending
the Lease Agreement referred to below.
WHEREAS, Lessor and Lessee have heretofore entered into an Lease
Agreement, dated as of June 29, 1995, as amended by Amendment No. 1, dated as
of August 20, 1996 (collectively, the "Lease Agreement"); and
WHEREAS, Lessor and Lessee wish to further amend the Lease
Agreement as hereinafter provided;
NOW, THEREFORE, Lessor and Lessee hereby agree that the Lease
Agreement is amended as follows:
1. Section 1 of the Lease Agreement is hereby amended by
adding the following definition thereto:
"'Appraisal Procedure' means the following procedure
whereby an independent appraiser shall be appointed by the Lessor
and the Lessee, with the consent of the Assignee, to determine
the amount, if any, by which the sales price of the Ammonia
Project has been reduced as the direct result of wear and tear in
excess of the wear and tear that would have occurred if the
Lessee's obligations contained in the second sentence of
paragraph (b) of Section 9 of this Lease had been satisfied, if
such determination is required under Section 19 of this Lease.
If no such appraiser is appointed by the Lessor and the Lessee
within thirty (30) days after the written request of either the
Lessor or the Lessee that an appraiser be appointed, the Lessor
and the Lessee shall each appoint an independent appraiser within
thirty (30) days thereafter, and the two appraisers so appointed
shall appoint a third independent appraiser. Each appraiser
appointed pursuant to the foregoing procedure shall, within
thirty (30) days after appointment of the last appraiser,
independently determine the amount, if any, by which the sales
price of the Ammonia Project has been reduced as the direct
result of wear and tear in excess of the wear and tear that would
have occurred if the Lessee's obligations contained in the second
sentence of paragraph (b) of Section 9 of this Lease had been
satisfied. If the Lessor or the Lessee shall fail to appoint an
independent appraiser within the above-mentioned thirty (30) day
period, the appraiser appointed by the other party shall
determine such amount. If a single appraiser is appointed, such
appraiser's determination shall be final. If three appraisers
are appointed, the amounts determined by the three appraisers
shall be averaged, the amount which differs the most from such
average shall be excluded, the remaining two amounts shall then
be averaged and such average shall be final. The expenses off
all appraisers shall be paid by the Lessee. Each appraiser
appointed pursuant to this "Appraisal Procedure" shall be an
independent engineering firm of recognized standing and shall
have experience in the construction, maintenance and operation of
ammonia production plants."
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2. Paragraph (d) of Section 10 of the Lease Agreement is
hereby amended to read in its entirety as follows:
"(d) Political Risk Insurance. The Lessee shall, as agent
for the Lessor, procure or cause to be procured and maintain or
cause to be maintained in respect of Property or Equipment not
located in the United States, for the Lessor, with the
Multilateral Investment Guaranty Agency or such other insurance
company as shall be reasonably acceptable to the Lessor, a policy
of political risk insurance covering (i) transfer restrictions,
(ii) expropriation and (iii) war and civil disturbance; provided,
that the amount of such political risk insurance in respect of
the Ammonia Project shall equal or exceed the Acquisition Cost of
the Ammonia Project less the sum of (A) the face amount of the
Letter of Credit, (B) the cash on deposit in the Cash Reserve
Account and (C) the value of all investments of such cash and
investments of earnings on investments of such cash (as
determined pursuant to the CRA Agreement). Upon obtaining such
policy of political risk insurance, the Lessee will furnish to
the Lessor evidence reasonably satisfactory to the Lessor that
such insurance complies with the terms of this paragraph (d)."
3. Section 19 of the Lease Agreement is hereby amended by
adding the following paragraph (j) to such section, to read in its entirety as
follows:
"(j) If (i) an Event of Default arising solely as a result
of the Lessee's failure to comply with its obligations contained
in the second sentence of paragraph (b) of Section 9 of this
Lease shall have occurred and be continuing, (ii) the Lessor
shall terminate this Lease or the Lessee's right to the use and
possession of the Ammonia Project, and (iii) the Lessor shall
sell the Ammonia Project, then if the proceeds of such sale are
less than 15% of the Acquisition Cost of the Ammonia Project, the
Lessee shall pay to the Lessor the amount by which the sales
price of the Ammonia Project has been reduced as the direct
result of wear and tear in excess of the wear and tear that would
have occurred if the Lessee's obligations contained in the second
sentence of paragraph (b) of Section 9 of this Lease had been
satisfied (the amount by which the sales price of the Ammonia
Project has been reduced as the direct result of wear and tear in
excess of the wear and tear that would have occurred if the
Lessee's obligations contained in the second sentence of
paragraph (b) of Section 9 of this Lease had been satisfied, to
be such amount, if any, as the Lessor and the Lessee agree, or if
no agreement is reached, the amount, if any, determined pursuant
to the Appraisal Procedure); provided that, in no event shall the
Lessee be required to pay an amount that, when combined with the
proceeds received by the Lessor from the purchaser of the Ammonia
Project, exceeds 15% of the Acquisition Cost of the Ammonia
Project."
4. This Amendment No. 2 may be executed in several
counterparts, each of which when executed and delivered shall be deemed an
original and all of which counterparts, taken together, shall constitute but
one and the same Amendment No. 2.
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5. This Amendment No. 2 shall in all respects be governed by,
and construed in accordance with, the laws of the State of New York, including
all matters of construction, validity and performance.
6. Except as provided herein, all provisions, terms and
conditions of the Lease Agreement shall remain in full force and effect. As
amended hereby, the Lease Agreement is ratified and confirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be duly executed as of the date first above written.
Trinidad Ammonia Company, Limited Partnership
By: Trinidad Ammonia Capital, Inc., its General Partner
By: /s/ XXXXX X. XXXXX
-------------------------------------------------
Name: XXXXX X. XXXXX
Title: Vice President-Finance
and Assistant Secretary
Arcadian Fertilizer, L.P.
By: Arcadian Corporation, its General Partner
By: /s/ XXXX X. XXXXXX
-------------------------------------------------
Name: XXXX X. XXXXXX
Title: TREASURER
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