SITE LEASE
AND SERVITUDE AGREEMENT
by and among
TRIAD NITROGEN, INC.
As Lessor
MISSISSIPPI CHEMICAL CORPORATION,
As Lessor and Guarantor
and
MELAMINE CHEMICALS, INC.
As Lessee
For Premises Located at Donaldsonville, Louisiana
Dated as of July 1, 1997
TABLE OF CONTENTS
BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . Page 1
ARTICLE 1
DEFINITIONS; TERMINATION OF PRIOR LEASES;
TERM OF LEASE; AND RENTAL
Section 1.1. Definitions.. . . . . . . . . . . Page 2
Section 1.2. Termination of Prior Leases.. . . Page 4
Section 1.3. Term. . . . . . . . . . . . . . . Page 4
Section 1.4. Leased Premises.. . . . . . . . . Page 5
Section 1.5. Additional Leased Land. . . . . . Page 5
Section 1.6. Servitudes Granted to Lessee. . . Page 6
Section 1.7. Servitude for MCI Road. . . . . . Page 7
Section 1.8. Reservation of Rights.. . . . . . Page 9
Section 1.9. Release of Office Building. . . . Page 9
Section 1.10. Rent. . . . . . . . . . . . . . . Page 9
Section 1.11. Original Leased Premises - First
10 Years . . . . . . . . . . . . .Page 9
Section 1.12. Office Building - First 7 Years . Page 10
Section 1.13. Additional Leased Land. . . . . . Page 11
Section 1.14. Taxes and Assessments. . . . . . Page 11
Section 1.15. Additional Rent.. . . . . . . . . Page 12
Section 1.16. Method of Payment; Due Date.. . . Page 12
Section 1.17. Certainty of Rent Payments. . . . Page 13
Section 1.18. Sanitary Sewer. . . . . . . . . . Page 13
Section 1.19. Storm Water. . . . . . . . . . . Page 15
Section 1.20. Process Wastewater. . . . . . . . Page 15
Section 1.21. Parking.. . . . . . . . . . . . . Page 15
Section 1.22. Rail Facilities.. . . . . . . . . Page 15
ARTICLE 2
OPERATION OF THE PLANT
Section 2.1. Costs of Construction and Operation . . . Page 16
Section 2.2. Secrecy Obligations . . . . . . . . . . . Page 16
ARTICLE 3
INDEMNITIES AND INSURANCE
Section 3.1. Indemnification by Lessee.. . . .Page 16
Section 3.2. Indemnification by Lessor.. . . .Page 16
Section 3.3. Insurance Coverage. . . . . . . .Page 17
ARTICLE 4
IMPROVEMENTS AND ALTERATIONS
Section 4.1. Additions, Alterations, Changes and
Improvements . . . . . . . . . . . Page 19
Section 4.2. The Plant, Fixtures, Equipment and
Personal Property . . . . . . . . .Page 19
Section 4.3. Risk of Loss. . . . . . . . . . . .Page 19
Section 4.4. Condition of Property.. . . . . . .Page 20
ARTICLE 5
USE OF PREMISES; COMPLIANCE WITHORDERS;
WORK PERFORMED BY LESSEE
Section 5.1. Use of Premises, Compliance with
Orders. . . . . . . . . . . . . .Page 20
Section 5.2. Work Performed by Lessee. . . . .Page 20
Section 5.3. Standard of Care. . . . . . . . .Page 20
Section 5.4. Mechanics' Liens. . . . . . . . .Page 20
ARTICLE 6
ENVIRONMENTAL MATTERS
Section 6.1. Environmental Representations,
Warranties and Covenants. . . . .Page 21
Section 6.2. Environmental Assessment. . . . .Page 21
Section 6.3. Use of Hazardous Substances . . .Page 21
Section 6.4. Obligation to Report. . . . . . .Page 21
Section 6.5. Environmental Indemnification by
Lessee. . . . . . . . . . . . . .Page 21
Section 6.6. Environmental Indemnification by
Lessor. . . . . . . . . . . . . .Page 22
Section 6.7. Post-Termination Exposure for
Violations of Applicable Law. . .Page 22
ARTICLE 7
UTILITIES AND CHARGES; LESSOR'S SERVICES
Section 7.1. Utilities and Charges.. . . . . .Page 22
Section 7.2. Inspection Rights.. . . . . . . .Page 22
Section 7.3. Interface Agreement. . . . . . .Page 23
ARTICLE 8
DAMAGE OR DESTRUCTION; CONDEMNATION
Section 8.1. Damage or Destruction of MCI Plant. . .Page 23
Section 8.2. Rent Payments to Continue.. . . . . . .Page 23
Section 8.3. Condemnation. . . . . . . . . . . . . .Page 24
ARTICLE 9
WARRANTY; PRIORITY OF LEASE; ASSIGNMENT
Section 9.1. Warranty of Title.. . . . . . . .Page 24
Section 9.2. Priority of Lease.. . . . . . . .Page 25
Section 9.3. Assignment and Sublease.. . . . .Page 25
Section 9.4. Assignment for Security . . . . .Page 25
Section 9.5. Lessor's Additional Warranties. .Page 25
Section 9.6. Lessee's Warranties.. . . . . . .Page 26
ARTICLE 10
REMOVAL AND DISPOSAL OF PROPERTY
Section 10.1. Removal of Property; Release of
Landlord's Lien . . . . . . . . .Page 26
ARTICLE 11
DEFAULT AND REMEDIES
Section 11.1. Lessee's Events of Default. . . .Page 27
Section 11.2. Remedies of Landlord. . . . . . .Page 28
Section 11.3. Lessor's Events of Default. . . .Page 29
Section 11.4. Remedies of Lessee. . . . . . . .Page 30
Section 11.5. Cumulative Remedies; Waiver Not
Implied. . . . . . . . . . . . . Page 31
Section 11.6. Waiver of Certain Damages . . . .Page 31
Section 11.7. Injunctive Relief . . . . . . . .Page 31
ARTICLE 12
GUARANTY
Section 12.1. Guaranty . . . . . . . . . . . . Page 31
Section 12.2. Guarantor's Representations and
Warranties . . . . . . . . . . . Page 32
ARTICLE 13
DISPUTE RESOLUTION
Section 13.1. Procedures. . . . . . . . . . . . . Page 32
Section 13.2. Good-Faith Negotiations.. . . . . . Page 33
Section 13.3. Mediation.. . . . . . . . . . . . . Page 33
Section 13.4. Arbitration . . . . . . . . . . . . Page 33
Section 13.5. Decision and Awards of Arbitrators. Page 33
Section 13.6. Exclusive Methods.. . . . . . . . . Page 34
Section 13.7. Rules.. . . . . . . . . . . . . . . Page 34
ARTICLE 14
GENERAL
Section 14.1. Notices.. . . . . . . . . . . . . . .Page 35
Section 14.2. Force Majeure. . . . . . . . . . . .Page 35
Section 14.3. Governing Law.. . . . . . . . . . . .Page 36
Section 14.4. Unenforceable or Illegal Provisions .Page 36
Section 14.5. Captions; Headings. . . . . . . . . .Page 36
Section 14.6. Successors and Assigns. . . . . . . .Page 36
Section 14.7. Several Counterparts. . . . . . . . .Page 36
Section 14.8. Short-Form Lease. . . . . . . . . . .Page 36
Section 14.9. Relationship of Parties . . . . . . .Page 36
DESCRIPTION OF EXHIBITS to
SITE LEASE and SERVITUDE AGREEMENT
Exhibit "A" - Legal Description of Original Leased Premises
Exhibit "A-1" - Map of Premises
Exhibit "B" - Legal Description of Lessor's Land
Exhibit "C" - Legal Description of Additional Leased Land
Exhibit "D" - Drawing of Servitudes for Existing Roads
Exhibit "E" - Drawing of Servitudes for Lessee's Existing
Lines and for Lessee's New Storm Water System
Exhibit "F" - Drawing of Servitude for MCI Road
SITE LEASE AND SERVITUDE AGREEMENT
This Site Lease Agreement ("Lease"), entered into effective as of
the 1st day of July, 1997, by and among Triad Nitrogen, Inc., a
Delaware corporation ("TNI"), and Mississippi Chemical Corporation, a
Mississippi corporation ("Guarantor") (TNI and Guarantor being
collectively referred to herein as "Lessor"), and Melamine Chemicals,
Inc., a Delaware corporation ("Lessee"):
BACKGROUND
A. Lessor's predecessor in interest, Triad Chemical, and First
Mississippi Corporation, Mississippi Chemical Corporation and Coastal
Chemical Corporation, as original lessors, and Lessee's predecessor in
interest, Ashland Oil and Refining Company, as original lessee,
entered into that certain Site Lease Agreement dated as of June 4,
1969, as amended by the Supplemental Site Lease Agreement dated as of
November 4, 1970, agreement dated January 9, 1971, and Supplement No.
2 dated as of July 1, 1972 (collectively, the "Original Site Lease"),
pertaining to the lease of certain property located in Section 10,
T11S, R15E, Ascension Parish, Louisiana, more particularly described
on Exhibit "A" to this Agreement (the "Original Leased Premises").
B. The original lessors and original lessee entered into that
certain lease agreement dated October 13, 21 and 28, 1969 (the "Office
Lease"), pertaining to the lease of a building located on Lessor's
Land.
C. Lessor and Lessee desire to terminate the Original Site
Lease and the Office Lease, as of the effective date of this Lease,
and to enter this Lease of the Original Leased Premises, the Office
Building and, under conditions described in Section 1.5 below, an
additional tract of land contiguous to the Original Leased Premises.
D. TNI, Lessee and Guarantor (the latter in the capacity of
guarantor) have entered into a feedstock agreement (the "Feedstock
Agreement") with the same effective date as this Lease under which TNI
intends to supply, and Lessee intends to acquire, urea and anhydrous
ammonia for the operation of Lessee's melamine plant, located upon the
land subject to the Lease, and Lessee intends to return to TNI, and
TNI intends to accept, carbamate produced in Lessee's melamine plant
all subject to the terms, provisions, and conditions set forth in the
Feedstock Agreement. Lessor and Lessee intend that any construction of
the Lease should be consistent with the Feedstock Agreement and vice
versa to give effect to both agreements.
E. The provisions of this section entitled "Background" shall be
construed to be a part of this Lease and shall be given full effect as
written.
AGREEMENT
In consideration of the mutual benefits and covenants herein
contained, Lessor and Lessee hereby agree as follows:
ARTICLE 1
DEFINITIONS; TERMINATION OF PRIOR LEASES; TERM OF
LEASE; AND RENTAL
Section 1.1. Definitions. As used in this Lease, the following
terms shall have the meanings set forth in this Section 1.1 Defined
terms that are used in this Lease and that are not defined herein
shall have the meanings ascribed to those terms in the Feedstock
Agreement.
"Additional Rent" shall have the meaning set forth in Section
1.15 of this Lease.
"Affiliate" shall mean any person, partnership, corporation,
limited liability company, association or other entity or organization
that controls, is controlled by, or is under common control with a
specified person, partnership, corporation, limited liability company,
association or other entity or organization. For purposes of this
definition, "control" shall mean the power, whether direct or
indirect, and whether by exercise of voting power or contract or
otherwise, to direct the management policies and decisions of another
entity or organization.
"Applicable Laws" means all Laws applicable to the use and
occupancy of the Leased Premises or the operation of the MCI Plant, or
to Lessor's Land or the operation of the plants upon Lessor's Land, as
may be applicable by the context of this Lease, including, but not
limited to, laws relating to industrial safety, building codes,
environmental protection or standards of operation and similar
matters.
"Additional Leased Land" shall have the meaning set forth in
Section 1.5 of this Lease.
"Effective Date of Lease" shall mean July 1, 1997.
"Existing Access Servitude" shall have the meaning set forth in
Section 1.6.1 of this Lease.
"Feedstock Agreement" shall have the meaning set forth in the
Background section of this Lease.
"Governmental Entity" means any legislative, governmental,
executive, administrative or judicial body, agency, instrumentality or
other Person whose actions have force of law.
"Governmental Order" means any order, decree, mandate,
injunction, writ or directive issued by any Governmental Entity and
having the force of law.
"Guarantor" shall have the meaning set forth in the opening
paragraph of this Lease.
"Hazardous Substances" means any substance whose handling,
release or disposal is regulated by Applicable Law due to the harmful,
toxic or dangerous composition or characteristics of such substance.
The term Hazardous Substance shall also include ammonia, petroleum,
crude oil or fraction thereof, and used or waste oil.
"Laws" means any treaty, constitution, charter, act, statute,
law, ordinance, code, rule, regulation, permit, order, decree,
mandate, injunction, writ, or directive issued by any Governmental
Entity and having the force of law.
"Leased Premises" shall mean collectively the Original Leased
Premises and the Office Building, or if the Office Building is
released from this Lease, then "Leased Premises" shall mean the
Original Leased Premises only. If Lessee should accept the lease of
the Additional Leased Land as provided in Section 1.5, then "Leased
Premises" shall mean the Original Leased Premises, the Office
Building (if not released) and the Additional Leased Land.
"Lease Term" shall mean the term of this Lease, as set forth in
Section 1.3 of this Lease.
"Lessee" shall have the meaning set forth in the opening
paragraph of this Lease.
"Lessee's Events of Default" shall have the meaning set forth in
Section 11.1 of this Lease.
"Lessor" shall have the meaning set forth in the opening
paragraph of this Lease.
"Lessor's Events of Default" shall have the meaning set forth in
Section 11.3 of this Lease.
"Lessor's Land" shall mean the land described in Exhibit "B" to
this Lease, less and except the Leased Premises.
"MCI Plant" shall mean the melamine plants and related facilities
operated by Lessee on the Leased Premises and Servitude Areas,
including any additions, expansions, or modifications thereof.
"MCI Road" shall mean a road as described in Section 1.7 of this
Lease.
"MCI Roadway" shall mean that part of Lessor's Land described in
Exhibit "F" to this Lease and made the subject of Lessor's grant of a
servitude of passage in favor of Lessee as set forth in Section 1.7 of
this Lease.
"Office Building" shall mean a certain white frame and brick
building located on Lessor's Land, which frame and brick building lies
south of Lessor's office facilities and being further identified as a
converted dairy barn, together with the necessary right of ingress and
egress thereto over, upon and across areas customarily used by Lessor
for ingress and egress to its office facilities.
"Office Lease" shall have the meaning set forth in the Background
section of this Lease.
"Original Leased Premises" shall have the meaning set forth in
the Background section of this Lease.
"Original Site Lease" shall have the meaning set forth in the
Background section of this Lease.
"Parties" means Lessor and Lessee, collectively. "Party" means
Lessor or Lessee, individually, as the case may be.
"Permits" means any permit, license, exemption, action, order or
approval issued or required to be issued by, or registration or filing
required to be made with, a Governmental Entity in connection with
Lessee, Lessee's use of the Leased Premises and Servitude Areas,
including permits to use and occupy the Leased Premises and Servitude
Areas, or to operate the MCI Plant, and any required approval of plans
or permits for construction, including permits relating to erosion and
sediment control, waste disposal, occupancy and use.
"Person" means an individual, partnership, corporation, company,
trust, Governmental Entity and any other entity which has legal
capacity to own property in its own name or to sue or be sued.
"Servitude Areas" shall mean those parts of Lessor's Land,
collectively, that are made subject to those servitudes created in
Sections 1.6 and 1.7 of this Lease.
"Submission Date" shall have the meaning set forth in Section
13.2 of this Lease.
"TNI" shall have the meaning set forth in the opening paragraph
of this Lease.
Section 1.2. Termination of Prior Leases. The Original Site
Lease and the Office Lease are terminated as of the Effective Date of
this Lease.
Section 1.3. Term. The term of this Lease (the "Lease Term")
is retroactive to July 1, 1997, and shall expire on June 30, 2027,
unless sooner terminated in accordance with the terms and conditions
hereof.
Section 1.4. Leased Premises. Lessor, in consideration of the
rentals reserved and the covenants and agreements herein contained,
does hereby lease to Lessee, and Lessee agrees to, and does hereby,
lease, take and hire from Lessor, subject to the terms, conditions and
provisions of this Lease, the following property:
A. the Original Leased Premises; and
B. the Office Building.
Section 1.5. Additional Leased Land. Lessor agrees to lease to
Lessee the premises that are contiguous to the Original Leased
Premises and described on Exhibit "C" to this Lease (the "Additional
Leased Land") subject to the terms, conditions, and provisions of this
Lease; provided however, the lease of the Additional Leased Land, and
Lessee's right to use and occupy the Additional Leased Land, shall not
become effective unless and until Lessee shall have given Lessor
written notice that Lessee accepts the lease of the Additional Leased
Land. In that event Lessee's right to use and occupy the Additional
Leased Land shall commence on the date of Lessee's notice of
acceptance of the lease. Failure of Lessee to give any notice on or
before January 3, 1998, as provided in Section 1.5.1 below shall be
considered as a rejection of the lease of the Additional Leased Land.
The rejection of the lease of the Additional Leased Land shall not
affect the validity of this Lease with respect to the Leased Premises.
1.5.1. Additional Leased Land. Lessor grants to Lessee
the right to enter the Additional Leased Land for the purpose of
conducting an evaluation of the Additional Leased Land for Lessee's
intended purpose, including the right to drill borings and perform
other testing procedures customarily done for environmental assessment
purposes. Lessee shall indemnify and hold harmless Lessor against and
from all claims by or on behalf of any Person arising from any act or
negligence of Lessee or of any of its agents, contractors, servants,
employees or licensees on the Additional Leased Land during Lessee's
evaluation of the Additional Leased Land. On or before January 3,
1998, Lessee may: (a) elect to reject the lease of the Additional
Leased Land; (b) accept the lease of the Additional Leased Land; or
(c) accept the lease of the Additional Leased Land subject, however,
to a satisfactory mitigation of the environmental condition by Lessor
at Lessor's expense. If Lessor should elect to mitigate, then, Lessor,
at its sole cost and expense, shall promptly take all actions to
remediate the Leased Premises which are reasonably necessary to
mitigate the environmental contamination or to allow full economic use
of the property. Such action shall include, but not be limited to,
the further investigation of the environmental condition of the
property; the preparation of feasibility studies, reports or remedial
plans; and performance of any cleanup, remediation, containment,
operation, maintenance, monitoring, or restoration work, whether on or
off the Additional Leased Premises. If Lessor should elect not to
mitigate the environmental condition, Lessor shall give written notice
of its election to Lessee, and in that event Lessee shall have the
right to revoke its earlier acceptance of the lease of the Additional
Leased Land. If Lessor should elect to commence the mitigation or
remediation but thereafter elects to terminate such work before
completion, Lessor shall give Lessee written notice of its termination
of the work, and in that event Lessee shall have the right to revoke
its earlier acceptance of the lease of the Additional Leased Land.
The acceptance or rejection of the lease of the Additional Leased
Land shall be made by Lessee in its sole discretion. If Lessee elects
to reject the lease of the Additional Leased Land, Lessee shall repair
any damage caused to the land by Lessee's investigation thereon,
provided however if from Lessee's inspection Lessor has commenced
mitigation or remediation work thereon, Lessee shall have no further
obligation to repair damage resulting from Lessee's inspection.
Section 1.6. Servitudes Granted to Lessee. In addition to a
lease of the Leased Premises, and in consideration of the Rent
provided herein, Lessor hereby grants unto Lessee, but only during the
Lease Term, the following servitudes that shall run with the Leased
Premises and for the benefit of Lessee, its successors and assigns, as
lessee of the Leased Premises and as owner of the MCI Plant.
1.6.1. Existing Access Servitude. A non-exclusive
servitude (the "Existing Access Servitude") over, across and along
the roadways currently utilized by Lessee in the locations shown on
Exhibit "D" for the purpose of ingress and egress to and from the
Leased Premises and Louisiana State Highway 18 by motor vehicles and
pedestrians; provided that the Existing Access Servitude shall expire
upon completion of the MCI Road. Lessor shall have no obligation to
maintain the roads in any particular condition, but Lessee shall have
the right to use such roads in the condition in which they are
maintained. Until the Office Building is released as provided in
Section 1.9 of this Lease, Lessee shall continue to have access to the
Office Building by the existing roads customarily used by Lessor for
ingress and egress to its office facilities. Lessee shall use
commercially reasonable efforts to minimize any disruption or
inconvenience to Lessor caused by Lessee's construction traffic during
the construction of the MCI Plant Expansion (as defined in the
Feedstock Agreement).
1.6.2. Existing Lines. A non-exclusive servitude in
common with Lessor over, across, along and under Lessor's Land located
along the routes currently utilized by Lessee as shown on Exhibit "E"
for the maintenance, operation, repair, replacement, and removal of
the existing underground, surface and overhead pipelines, together
with all necessary appurtenances and surge tanks, for the
transportation of (a) all feedstock and other raw materials necessary
or desirable for the operation of the MCI Plant, (b) any product or
by-product produced in the MCI Plant, (c) waste disposal; (d) fire
water, (e) sanitary sewer disposal, (f) process wastewater disposal,
(g) storm water and (h) any other item, service or material necessary
or desirable for the operation of the MCI Plant. Either Party may
relocate the pipelines and appurtenances to a mutually agreed-upon
location provided that the Party requesting the move shall pay all
costs of the relocation and provided further that the Parties mutually
agree upon the timing of the move and other factors relating to the
interruption of operations of Lessor and Lessee. Lessee acknowledges
that a pipe rack located on the west side of the Original Leased
Premises adjacent to Lessee's cooling towers encroaches onto Lessor's
Land located on the west line of the Original Leased Premises. If
Lessor should have a future need for the land upon which the
encroachment is situated, Lessee shall relocate the pipe rack at
Lessee's expense.
1.6.3. Contingent Rights. Lessor covenants and agrees
with Lessee to grant to Lessee reasonable and necessary servitudes
over Lessor's Land for installation, repair and maintenance of
pipelines, railroads, and motor vehicular passage for the
transportation of urea, ammonia, and carbamate by Lessee to and from
Affiliates or third persons but only in those circumstances and only
for the time periods permitted by the Feedstock Agreement.
Section 1.7. Servitude for MCI Road. Lessor further grants to
Lessee an exclusive servitude, forty (40) feet in width over and
across that portion of Lessor's Land described on Exhibit "F" (the
"MCI Roadway") for the purpose of ingress and egress to and from the
Leased Premises and a public road now known as Louisiana State Highway
3089. The center line of the "Asphalt Driveway" shown on Exhibit "F"
shall be the center line of the MCI Roadway. If Lessee should elect
to expand the MCI Plant as provided in the Feedstock Agreement, Lessee
shall, at Lessee's expense, construct within the MCI Roadway a
hard-surfaced road (the "MCI Road") designed to meet Lessee's
anticipated needs for its plant operations together with properly
designed drainage to efficiently remove storm water from the
servitude. Construction of the MCI Road shall be substantially
completed no later than the date on which the MCI Plant Expansion
shall be completed. Lessee, at its option, may construct the MCI Road
at any time prior to an expansion of the MCI Plant. The servitude over
and across the MCI Roadway shall automatically terminate if (a) Lessee
does not give Lessor the MCI Plant Expansion Notice (as defined in the
Feedstock Agreement) within the time period set forth in the Feedstock
Agreement; (b) Lessee timely gives Lessor the MCI Plant Expansion
Notice but later revokes the MCI Plant Expansion Notice as allowed by
the Feedstock Agreement; or (c) Lessee timely gives Lessor the MCI
Plant Expansion Notice but fails to complete the MCI Plant Expansion
within the time periods provided in the Feedstock Agreement; provided,
however, the servitude for the MCI Roadway shall not terminate if
construction of the MCI Road has been commenced or completed on the
date of the foregoing events.
1.7.1. Use. The MCI Road shall be for the primary use of
Lessee, its employees, agents, vendors, contractors, tenants, invitees
and others designated by Lessee. Lessor, and others designated by
Lessor, may use the MCI Road from time to time provided that Lessor's
use, or use by others designated by Lessor, shall not unreasonably
interfere with Lessee's use and provided further that if Lessor
regularly uses the MCI Road, Lessor shall contribute to the cost of
the maintenance of the MCI Road and MCI Roadway as may be mutually
agreed from time to time. Lessor reserves the right to install, use,
maintain, repair and replace railroad spur tracks, vehicular and
pedestrian crossings, pipes, lines, conduits, and other facilities
over, under and across the MCI Roadway, provided such does not
unreasonably interfere with Lessee's use of the MCI Roadway or
increase the cost of maintenance of the MCI Road. Such improvements
shall not impede the drainage of the MCI Roadway.
1.7.2. Existing Lines in MCI Roadway. Lessee shall
construct and maintain the MCI Road in such a manner as to not
interfere with those pipes, lines, utilities, railroads or other
improvements located in or crossing the servitude area as shown on
Exhibit "F." Provided, Lessee may, at its expense, move, relocate,
bury, or raise any existing pipes, lines, or utilities described on
Exhibit "F," as necessary or desirable in the sole opinion of Lessee,
for the construction of the MCI Road; however, any such work must be
done with the consent of Lessor and the owner of the pipe, line, or
utility and in accordance with Applicable Law.
1.7.3. Release of MCI Roadway from Farm Lease. On the
Effective Date of this Lease, the MCI Roadway is part of a larger
tract of land that is leased by Lessor to other persons for farming
operations, and Lessor intends to continue to lease the tract to that
person or other persons for farming. If the MCI Roadway is leased at
the time that Lessee should give notice to Lessor of Lessee's intent
to construct the MCI Road, Lessor shall cause the MCI Roadway to be
released from the third-party lease prior to commencement of
construction of the road. Lessee agrees to reimburse Lessor for
reasonable costs and damages paid by the Lessor to the farm lessee for
the cancellation of the farm lease insofar as it affects the MCI
Roadway and other land made unusable for the farm lessee's operations
because of the location of the MCI Roadway, but in no event shall the
reimbursement be greater than the sum of One Hundred Fifty Thousand
and no/100 Dollars ($150,000.00).
1.7.4. Temporary Use of Farm Road. Lessor grants to
Lessee a temporary, nonexclusive right to use the existing farm road
located near the MCI Roadway for ingress and egress as may be
necessary for the initial construction of the MCI Road; provided that
Lessee shall, upon completion of the MCI Road, cease to use the
existing farm road and return the farm road to the same condition as
existed prior to the use thereof by Lessee, including the relocation
of any portion of the farm road now located within the MCI Roadway.
During the period of construction of the MCI Road, Lessee shall
maintain the farm road.
1.7.5. Maintenance of MCI Road. Lessee shall, at
Lessee's cost, keep, maintain and repair the MCI Road, and all other
improvements made by Lessee within the MCI Roadway in good condition
throughout the Lease Term.
1.7.6 Fence. Lessee shall, at Lessee's expense, construct
a fence around the perimeter of the Leased Premises and complete
construction within thirty (30) days following the completion of the
MCI Road. The fence shall include one (1) emergency gate for vehicles
and one (1) personnel gate with controlled access. Lessee and Lessor
shall mutually agree upon specifications of the fence.
1.7.7. Relocation of MCI Roadway. Prior to commencement
of construction of the MCI Road, Lessor may deliver a written notice
to Lessee that Lessor has a bona fide need for the use of all or a
part of the MCI Roadway in connection with its plant operations upon
Lessor's Land and request Lessee to either release the servitude for
the MCI Roadway, or part thereof, or to relocate all or part of the
MCI Roadway to a mutually agreeable location. Lessee shall respond in
writing to Lessor and advise Lessor if Lessee, on the date of the
response, has a good-faith, bona fide intent to build the MCI Road.
If Lessee notifies Lessor that Lessee does not intend to build the MCI
Road, the servitude over the MCI Roadway shall be released. If
Lessee does intend to build the MCI Road, the servitude shall be
relocated to a mutually agreeable location. If the parties are unable
to agree upon a mutual relocation, the dispute resolution procedure of
Article 13 shall apply. If Lessee shall have incurred engineering or
other costs directly related to the design and planning of the MCI
Road, Lessor shall reimburse Lessee for those reasonable costs which
do not apply to the new location.
Section 1.8. Reservation of Rights. Lessor reserves the right
to use that portion of the Leased Premises described on Exhibit "A-1"
for the maintenance, operation, repair, replacement and removal of the
existing underground surface and overhead pipelines and facilities,
together with all necessary appurtenances, for the purposes for which
such facilities are currently utilized, and for future purposes and
facilities necessary or desirable for the operation of Lessor's plant.
To the extent that Lessor and Lessee share the same areas of the
Leased Premises, the Parties shall cooperate in the use of the areas,
and neither Party shall cause unreasonable interference with the use
of the shared areas by the other Party. Until such time as Lessee
shall have accepted the lease of the Additional Land, Lessor shall
have the right of ingress and egress over, across and along the
roadways currently utilized by Lessor in the location shown on Exhibit
"D" for the purpose of vehicular and pedestrian access to the
Additional Leased Land.
Section 1.9. Release of Office Building. Prior to July 1,
2007, Lessor shall have the right to obtain a release of the Office
Building from this Lease but only if Lessor should have a reasonable
need for the site of the Office Building for the expansion of its
plant. After July 1, 2007, Lessor shall have the right to obtain a
release of the Office Building from this Lease, provided Lessor shall
give Lessee written notice of Lessor's election effective no less than
six (6) months from the date of the notice. Either Lessor or Lessee
shall have the right to obtain a release of the Office Building
following completion of office facilities for Lessee upon either the
Original Leased Premises or the Additional Leased Land. The
effective date of a release shall be the release date set forth in a
written notice from Lessor to Lessee or from Lessee to Lessor, as
applicable, provided that the release date shall be not less than six
(6) months from the date of the written notice. Rent shall be
reduced, as of the effective date of the release, by the amount of the
rent applicable to the Office Building, and Lessee shall vacate the
Office Building on or before the effective date of the release.
Section 1.10. Rent. During the Lease Term, Lessee shall pay to
Lessor rent in the amount set forth below for use of the Leased
Premises, for the performance by Lessor of its covenants herein, and
as compensation for the servitudes and other rights herein granted to
Lessee.
Section 1.11. Original Leased Premises - First 10 Years. From
July 1, 1997 through June 30, 2007, the rent for the Original Leased
Premises shall be the sum of Three Thousand and no/100 Dollars
($3,000.00) per acre per year payable annually in advance on the
first day of July in each year. For purposes of calculating the rent
under this section, Lessor and Lessee agree that on the Effective Date
of this Lease, the Original Leased Premises contains 8.287 acres, and
therefore the annual rent is Twenty-Four Thousand Eight Hundred
Sixty-One and no/100 Dollars ($ 24,861.00). Within thirty (30) days
following the date on which this Lease has been signed by all Parties,
Lessee shall pay the annual rental for July 1, 1997, through June 30,
1998, with credit for the amount of rent that Lessee will have paid
to Lessor under the Original Site Lease for the period commencing July
1, 1997.
1.11.1. Original Leased Premises - Next 5 Years. From
July 1, 2007 through June 30, 2012, rent for the Original Leased
Premises shall be adjusted to an amount per acre per year then equal
to the fair market rental value of the Original Leased Premises
without taking into effect to the value of improvements made thereon
by Lessee. No later than September 1, 2006, the Parties shall meet
to discuss and agree upon the fair market rental value. If the
Parties fail to reach an agreement within thirty (30) days with
respect to such issue, then the Parties shall jointly engage a
professional real estate appraiser, with not less than ten (10) years'
experience in appraising similar property in the State of Louisiana,
to express an opinion of the fair market rental value, and his opinion
shall be binding on the Parties. If the Parties fail to agree upon
the selection of the appraiser, then each Party shall appoint an
appraiser, with the same qualifications described above, to express
professional opinions of the fair market rental value. If the
difference in the fair market rental value expressed by the two (2)
appraisers is less than twenty percent (20%) of the higher appraisal,
then the fair market rental value shall be an amount equal to the
average of the two appraisals. If the difference expressed by the two
appraisers is more than twenty percent (20%), then the two (2)
appraisers shall appoint a third appraiser with the same
qualifications described above to render a third professional opinion
as to the fair market rental value. The average fair market rental
value of the two (2) closest appraisals shall be the fair market
rental value. The fees and costs of all of the appraisers engaged by
either Party shall be borne equally by the Parties.
1.11.2. Original Leased Premises - Thereafter. From and
after July 1, 2012, the rent for the Original Leased Premises shall be
adjusted to fair market rental value every five (5) years for the
remainder of the Lease Term. The procedure described in Section
1.11.1 shall be used to determine the fair market rental value.
Section 1.12. Office Building - First 7 Years. From July 1,
1997, through June 30, 2004, the rent for the Office Building shall be
the sum of Five Hundred and no/100 Dollars ($500.00) per month,
payable monthly in advance on the first day of each month effective as
of July 1, 1997. Within thirty (30) days following the date on which
this Lease has been signed by all Parties, Lessee shall pay the
adjusted annual rental for the Office Building for the period from
July 1, 1997, with credit for the amount of rent that Lessee will have
paid to Lessor under the Office Lease for the period commencing July
1, 1997.
1.12.1. Office Building - Next 3 Years. From July 1,
2004, through June 30, 2007, the rent for the Office Building shall be
adjusted, as of July 1, 2004, to an amount then equal to the fair
market rental value of the Office Building. Fair market rental value
shall be determined in the manner prescribed in Section 1.11.1 above,
except that Lessee's improvements to the Office Building shall be
considered in the determination of fair market rental value.
1.12.2. Office Building - Thereafter. From and after July
1, 2007, the rent for the Office Building shall be adjusted to fair
market rental value every five years for the remainder of the Lease
Term. Fair market rental value shall be determined in the manner
prescribed in Section 1.11.1 above, except that Lessee's improvements
to the Office Building shall be considered in the determination of
fair market rental value.
Section 1.13. Additional Leased Land. If Lessee should accept
the lease of the Additional Leased Land as provided in Section 1.5
above, Lessee shall pay rent for the Additional Leased Land from July
1, 1997, through June 30, 2007, in the sum of Three Thousand and
no/100 Dollars ($3,000.00) per acre per year, payable annually in
advance on the first day of July in each year. For purposes of
calculating rent under this section, Lessor and Lessee agree that on
the Effective Date of this Lease, the Additional Leased Land contains
4.443 acres, and therefore the annual rent for the Additional Leased
Land is Thirteen Thousand Three Hundred Twenty-Nine and no/100 Dollars
($13,329.00). If Lessee rejects the lease of the Additional Leased
Land on or before January 3, 1998, or rejects the Additional Leased
Land upon its receipt of notice that Lessor has elected to terminate
efforts to mitigate environmental conditions on the Additional Leased
Land pursuant to Section 1.5.1, Lessee shall owe no rent under this
Section 1.13. If Lessee accepts the lease of the Additional Leased
Land, Lessee shall pay the pro rata first annual rent payment for the
Additional Leased Land within thirty (30) days after Lessee accepts
the lease of the Additional Leased Land. Rent for the Additional
Leased Land shall be adjusted at the same intervals, in the same
amount, and by the same procedures applicable to the adjustment to
rent for the Original Leased Premises.
Section 1.14. Taxes and Assessments. Lessor agrees to pay all
lawfully assessed taxes levied and assessed during the Lease Term
against the Leased Premises, and Lessee agrees to pay all lawfully
assessed taxes levied and assessed during the Lease Term against the
rentals or the MCI Plant and other improvements constructed or placed
on the Leased Premises or Servitude Areas by Lessee prior to or during
the Lease Term. Lessor and Lessee will cooperate in an effort to have
tax bills for the MCI Plant and other improvements made by Lessee
issued in the name of Lessee. If tax bills for the MCI Plant and
improvements are issued in the name of Lessor, then Lessor promptly
will forward such tax bills to Lessee together with Lessor's check
payable to the proper taxing authority for any portion of such tax
bill attributable to the Leased Premises. Lessee is hereby authorized
to pay to the proper taxing authority any taxes or assessments against
the MCI Plant or other improvements made by Lessee on the Leased
Premises assessed in the name of Lessor. In the event Lessor shall
fail to pay when due any taxes which Lessor agrees to pay herein,
Lessee shall have the right to pay such taxes, together with any
penalties and other charges, and to recover all such payments from
Lessor by a deduction from rentals.
1.14.1. Taxes on Improvements by Governmental Authority.
Lessee shall also pay all assessments and charges lawfully assessed
against the Leased Premises by any governmental or public authority
for improvements made by the governmental or public authority, or
services directly provided by governmental or public authority for,
the Leased Premises which become due during the Lease Term. If the
assessment or charge is permitted by the governmental or public
authority to be paid in installments, Lessee may pay in installments
provided that Lessee shall pay all installments that become due during
the Lease Term. To the extent that the improvements or services
directly benefit Lessor, the assessments and charges shall be
allocated in a fair and equitable manner.
1.14.2. Lessee's Right to Contest. Lessee shall have the
right to contest any tax, assessment or charge which Lessee herein
agrees to pay, and shall not be required to pay the same while
conducting any such contest so long as Lessee takes such action as
shall be necessary to prevent the Leased Premises or any part thereof
from being subjected to loss or forfeiture.
1.14.3. Lessee's Rights to Exemptions. Lessee may in its
discretion take such action as may be necessary under the appropriate
law or laws of the State of Louisiana to exempt any prop- erty of
Lessee located in or used on the Leased Premises from ad valorem and
other taxation exemptions to the maximum extent and for the maximum
period permitted by law. Lessor agrees to cooperate in securing this
and any other tax exemptions to which Lessee may be entitled under the
laws of the State of Louisiana.
Section 1.15. Additional Rent. If Lessee shall fail to keep or
perform any of its obligations as provided in this Lease in respect
of: (a) maintenance of insurance; (b) payment of taxes or assessments;
or (c) keeping the Leased Premises free of mechanics' liens, Lessor
may (but shall not be obligated to do so), upon the continuance of
such failure on Lessee's part for thirty (30) days after written
notice by Lessor to Lessee, and without waiving or releasing Lessee
from any obligation, and as an additional but not exclusive remedy,
make any such payment or perform any such obligation, and all sums so
paid by Lessor and all necessary incidental costs and expenses
incurred by Lessor in making such payment or performing such
obligation shall be deemed "Additional Rent," and shall be due and
payable, together with interest from the date of payment by Lessor at
a rate equal to the prime rate of interest charged on commercial loans
by the CitiBank, New York, New York, in effect on the date of such
payment plus one percent (1%), to Lessor by Lessee on demand, or at
Lessor's option may be added to any installment of basic rent
thereafter falling due. If not so paid by Lessee, Lessor shall have
the same rights and remedies as in the case of default by Lessee in
the payment of the rental set forth in Section 11.2 of this Lease.
Section 1.16. Method of Payment; Due Date. In the event the
due date of any rent pay- ment or Additional Rent payment falls on a
Saturday, Sunday or legal holiday, such payment shall not be due and
payable until the time of opening for business on the next succeeding
business day thereafter. Checks in payment of the rentals may be
mailed to Lessor at the address provided herein.
Section 1.17. Certainty of Rent Payments. Rent payments and
Additional Rent payments, if any, shall be payable on the dates or at
the time specified during the Lease Term without notice or demand and
regardless of the existence or occurrence of any of the following
contingencies:
(a) unavailability of all or part of the Leased Premises for use
and occupancy by Lessee at any time by reason of the failure
to complete an expansion of the MCI Plant;
(b) damage to, or destruction of, the Leased Premises, or any
part thereof, the proximate cause of which is not the result
of the negligent or willful acts or omissions of Lessor, its
agents or employees; or
(c) any assignment of Lessee's interest, including, without
limitation, an assignment as part of a transaction involving
merger, consolidation or sale of all or substantially all of
Lessee's assets; performance by an assignee or sub-lessee
shall be considered as performance pro tanto by Lessee.
Section 1.18. Sanitary Sewer. Under the Original Site Lease,
Lessor granted Lessee the right to tie in to and utilize Lessor's
sanitary sewerage system with a capacity sufficient to receive and
transport (over and above the requirements of its other users)
sanitary sewage resulting from normal use from the Leased Premises.
Lessee shall continue to have the right to utilize Lessor's sanitary
sewer system until the system's capacity has been reached in Lessor's
sole opinion. In that event, Lessor shall have the right upon
reasonable notice to Lessee to terminate Lessee's rights to use
Lessor's sanitary sewer system except for sanitary sewer service to
the Office Building. Interpretation of reasonable notice shall include
a period of time for the Lessee to design and construct its own
sanitary sewer system or to tie in to other systems, but not to exceed
six (6) months.
Section 1.19. Storm Water. Under the Original Site Lease,
Lessor permitted Lessee to share a storm water drainage system.
However, under this Lease, Lessor and Lessee intend to maintain and
operate separate storm water drainage systems. Except as noted below
in this Section 1.19, each Party shall endeavor to contain all storm
water runoff from entering the other Party's premises. To accomplish
this intent, Lessor and Lessee agree as follows.
1.19.1. Sale of Existing Pump. Within thirty (30) days
after the date on which this Lease has been executed and delivered by
all Parties, Lessor and Lessee agree to execute and deliver a bill
of sale whereby Lessor will sell to Lessee for the price of
Ninety-Five Thousand and no/100 Dollars ($95,000.00), AS IS, WHERE IS,
the existing vertical pump and sump located in the sump end of the
ditch immediately south of Lessee's shipping warehouse, and the piping
attached to the pump from the pump to the termination of the piping at
an open ditch at the north end of a settling pond near an ammonia
storage tank, all as shown on Exhibit "E" to this Lease.
1.19.2. Additional Piping. Lessee will, at Lessee's cost,
install additional piping over Lessor's Land in the location shown on
Exhibit "E" to this Lease to tie in Lessee's stormwater drainage
system with the existing drainage head of Lessor's storm runoff
outfall pumps as shown on Exhibit "E." Lessee shall submit to Lessor
for approval Lessee's plans for the installation of the additional
piping, which approval shall not be unreasonably withheld or delayed.
Lessee shall maintain, repair and replace Lessee's storm drainage
system, including the vertical pump, piping and other components as
necessary or appropriate throughout the Lease Term. Lessee shall not
remove the pump, sump, and piping during the Lease Term (except as may
be necessary for proper maintenance, repair, or replacement) or upon
the termination of the Lease Term without the consent of Lessor.
Lessee agrees to complete the installation of the additional piping
within six (6) months after the date on which this Lease has been
executed and delivered by all Parties.
1.19.3. Servitude for Storm Water System. Lessor hereby
grants to Lessee for the Lease Term a servitude over Lessor's Land,
in favor of the Leased Premises, in the location shown on Exhibit "E"
for the installation, repair, maintenance, operation, and replacement
of the existing piping, the additional piping. and related equipment
for Lessee's storm water drainage system.
1.19.4. If Additional Leased Land is Accepted. If Lessee
elects to accept the lease of the Additional Leased Land, then in that
event:
(a) Lessor, at its expense, will collect and discharge all
storm water drainage from that portion of Lessor's Land located
north of the Leased Premises to prevent drainage onto the Leased
Premises; and
(b) Lessee, at its expense, will collect and discharge all
storm water on the Original Leased Premises, Additional Leased
Land, the fifty (50) foot strip of Lessor's Land to the west of
the Original Leased Premises and the Additional Leased Land and
that portion of Lessor's Land located between the Additional
Leased Land and the railroad spurs south and east of the
Additional Leased Land, through Lessee's storm water system
described in this section 1.19.
1.19.5. If Additional Leased Land is Not Accepted. If Lessee
elects not to accept the lease of the Additional Leased Land, then in
that event:
(a) Lessor, at its expense, will collect and discharge all
storm water drainage from that portion of Lessor's Land located
north of the Original Leased Premises to prevent drainage onto
the Leased Premises; and
(b) Lessee shall, at its expense, install, maintain, and
replace berms or other reasonable constructions to prevent storm
water drainage from Lessor's Land onto the Leased Premises, and
to prevent storm water drainage from the Leased Premises onto
Lessor's Land (except as otherwise permitted through Lessee's
storm water drainage system described in sub-sections 1.19.1,
1.19.2, and 1.19.3 of this Lease).
Section 1.20. Process Wastewater. Under the Original Site
Lease, Lessor granted Lessee the right to tie in to and utilize
Lessor's process waste water discharge piping over Lessor's Land to
the Mississippi River. Lessee shall continue to have the right to
utilize Lessor's process waste water discharge piping, but only if and
to the extent Lessor determines in Lessor's sole discretion, that
there exists capacity in the system that is not now, or in the future,
will be used by Lessor. Lessor shall give Lessee one hundred eighty
(180) days written notice prior to implementing any scheduled
reduction or termination of Lessee's use of the process wastewater
discharge piping. If Lessor terminates Lessee's right to utilize
Lessor's process wastewater discharge piping, Lessee shall have the
right at Lessee's cost to install discharge piping from the Leased
Premises over Lessor's Land to the Mississippi River at a location to
be mutually approved by Lessor, Lessee, and applicable Governmental
Entities. Lessor agrees to grant to Lessee a predial servitude over
Lessor's Land at such mutually approved location for the purpose of
installing, maintaining, repairing, operating, and replacing discharge
piping and related equipment during the term of this Lease.
Section 1.21. Parking. Lessee shall have the right to use the
parking facilities located upon Lessor's Land for parking by Lessee's
employees, agents, contractors and visitors under the following
conditions. Lessor reserves the right from time to time to change the
location and size of any parking facilities which are or may from time
to time be designated as such, but Lessor will provide a reasonable
number of parking spaces reserved for Lessee in Lessor's parking lot.
Upon completion of the MCI Road, Lessee's right to park in Lessor's
lot shall be limited to parking by Lessee's personnel in, and
visitors to, the Office Building. Upon the release of the Office
Building from this Lease as set forth in Section 1.8, Lessee shall not
have the right to use any of Lessor's parking facilities except as
provided in Section 1.21.1 of this Lease.
1.21.1. Temporary Parking. Throughout the Lease Term,
during periods of construction by Lessee or turnarounds by Lessee,
Lessee and its contractors shall have the non-exclusive right to use,
for parking, a part of Lessor's Land of not more than one (1) acre in
close proximity and convenient to the MCI Road, or if the MCI Road has
not been completed, then in close proximity and convenient to the
Leased Premises. Lessor reserves the right from time to time to
change the location and configuration of such site upon not less than
thirty (30) days' notice to Lessee. Lessee shall pay the cost of any
labor and materials for such parking areas or relocated parking areas.
Section 1.22. Rail Facilities. Lessor agrees to permit Lessee
to use the rail trackage and related rail facilities located upon
Lessor's Land, from time to time, as such facilities may be available,
as determined by Lessor, and in coordination with Lessor's use and
other persons' use of the rail facilities. Lessee agrees to pay
Lessor a reasonable charge for Lessee's use; provided however, Lessor
shall have no obligation to Lessee to repair or maintain the rail
facilities.
ARTICLE 2
OPERATION OF THE PLANT
Section 2.1. Costs of Construction and Operation. The entire
cost of installation and construction of any improvements to the MCI
Plant, and all costs related to the operation, maintenance, repair and
replacement thereof, shall be at the expense of Lessee. Lessor shall
have no obligation to maintain or repair any portion of the Leased
Premises.
Section 2.2. Secrecy Obligations. To the extent that either
Party proposes to gain access to confidential technical information of
the other Party, Lessor and Lessee each agrees that upon the
reasonable request from the other, it will execute and deliver, and
require any assignee or sublessee to execute and deliver, to the other
appropriate secrecy agreements and that it will cause its officers and
employees having access to the other 's plant or any information with
respect to the operations conducted therein to execute and deliver
appropriate secrecy agreements to the other .
ARTICLE 3
INDEMNITIES AND INSURANCE
Section 3.1. Indemnification by Lessee. Lessee shall indemnify
and hold harmless Lessor against and from all claims, other than those
covered in Section 6.5 hereof, by or on behalf of any Person arising
from the conduct or management of, or from any work or thing done or
occurring by Lessee within the MCI Plant, the Leased Premises, or the
Servitude Areas, and against and from all claims arising during the
Lease Term from (a) any condition of the MCI Plant, the Leased
Premises, or the Servitude Areas, or (b) any act or negligence of
Lessee or of any of its agents, contractors, servants, employees or
licensees on the Leased Premises or the Servitude Areas. Lessee shall
indemnify and hold harmless Lessor from and against all costs and
expenses incurred in or in connection with any such claim arising as
aforesaid, or in connection with any action or proceeding brought
thereon, and upon notice from Lessor, Lessee shall defend it in any
such action or proceeding. The foregoing shall not be applicable to
any claim, action or cause of action for damage to property or injury
to persons (including death) the proximate cause of which results from
the negligence or misconduct of Lessor, its agents, employees,
contractors or lessees, other than the Lessee herein or its assignees
or sublessees.
Section 3.2. Indemnification by Lessor. Lessor shall indemnify
and hold harmless Lessee against and from all claims, other than those
covered in Section 6.6 hereof, by or on behalf of any Person arising
from the conduct or management of, or from any work or thing done or
occurring by Lessor within Lessor's Land during the Lease Term, and
against and from all claims arising during the Lease Term from (a) any
condition of the Lessor's Land and the Lessor's plants located
thereon, or (b) any act or negligence of Lessor or of any of its
agents, contractors, servants, employees or licensees on the Lessor's
Land or Servitude Areas. Lessor shall indemnify and hold harmless
Lessee from and against all costs and expenses incurred in or in
connection with any such claim arising as aforesaid, or in connection
with any action or proceeding brought thereon, and upon notice from
Lessee, Lessor shall defend it in any such action or proceeding. The
foregoing shall not be applicable to any claim, action or cause of
action for damage to property or injury to persons (including death)
the proximate cause of which results from the negligence or misconduct
of Lessee, its agents, employees, contractors or its assignees or
sublessees.
Section 3.3. Insurance Coverage.. Lessor and Lessee each shall
procure and maintain throughout the Lease Term at their respective
costs and expense:
3.3.1. Workers' Compensation Insurance with statutory
limits covering Lessor's/Lessee's obligations under the Workers'
Compensation Act of any applicable jurisdiction, and Employers
Liability insurance with limits of not less than One Million
Dollars ($1,000,000) per accident. Neither Party shall be
required to carry Worker's Compensation coverage if it qualifies
as a self-insurer under Applicable Law.
3.3.2. Commercial General Liability Insurance with limits
of not less than One Million Dollars ($1,000,000) per occurrence
and Two Million Dollars ($2,000,000) annual aggregate covering
third-party bodily injury, property damage and personal injury
liability. Such insurance shall be written on an "occurrence
form."
3.3.3. Commercial Automobile Liability Insurance with
limits of not less than One Million Dollars ($1,000,000) per
occurrence covering third party bodily injury and property damage
liability arising out of the ownership, use or maintenance of any
automobile.
3.3.4. Umbrella Liability Insurance with limits of not
less than Five Million Dollars ($5,000,000) per occurrence and
Five Million Dollars ($5,000,000) annual aggregate providing
coverage on a basis not more restrictive than "following-form" of
the liability coverages described in subsections 3.3.1 through
3.3.3 above.
3.3.5. Property and Business Interruption Insurance
covering "All-Risks" of physical loss or damage to Lessor's or
Lessee's, as the case may be, owned, leased or rented real and
personal property and loss of business income arising out of such
damage. Such insurance shall cover the full replacement cost
value of insured property and the One Hundred (100%) percent,
twelve (12) month business income value associated with the
Lessor's plants on Lessor's Land or the MCI Plant, as the case
may be. Such insurance may include deductibles not to exceed
Five Hundred Thousand Dollars ($500,000) for property damage and
ten (10) times the average daily business income value.
3.3.6. Pollution Legal Liability Insurance to the extent
commercially available on reasonable terms, with limits of not
less than One Million Dollars ($1,000,000) per occurrence and Two
Million Dollars ($2,000,000) annual aggregate covering
third-party bodily injury and property damage (including damage
to the Lessor's Land and Leased Premises, and all plants and
facilities located thereon) liability arising out of the
discharge, dispersal, release or escape of any solid, liquid,
gaseous or thermal irritant or contaminant, including smoke,
vapors, soot, fumes, acids, alkalis, or toxic chemicals arising
out of Lessee's use of or operations on the Leased Premises or
Servitude Areas or Lessor's use of the Lessor's Land, as the case
may be. Such insurance may be written on a "claims-made form."
Lessor acknowledges that on the Effective Date of this Lease
Lessee does not carry this type of insurance coverage. However,
within thirty (30) days after date on which this Lease is signed
by all Parties, Lessee agrees to apply for, and diligently
pursue, this coverage and to keep Lessor informed of the progress
of the application process. If the coverage described in this
subsection is not available to Lessee for the Leased Premises or
Servitude Areas, Lessee shall notify Lessor, and neither Lessee
nor Lessor thereafter shall have any further obligation to obtain
or maintain the coverage required under this subsection 3.3.6
during periods when the coverage described in this subsection
3.3.6 is not commercially available on reasonable terms.
3.3.7. Lessor as an Additional Insured. Insurance
policies described in subsections 3.3.2, 3.3.4 and 3.3.6, and
procured by Lessee, shall include Lessor as an Additional Insured
with respect to liability arising out of Lessee's use of, or
operations on, the Leased Premises.
3.3.8. Lessee as an Additional Insured. Insurance
policies described in subsections 3.3.2, 3.3.4 and 3.3.6, and
procured by Lessor, shall include Lessee as an Additional Insured
with respect to liability arising out of Lessor's use of, or
operations on, Lessor's Land.
3.3.9. Waiver of Subrogation Rights. All Insurance
policies described in subsections 3.3.1. through 3.3.6. shall
include mutual waiver of subrogation or counterclaim of one
against the other. Lessor and Lessee shall each obtain from their
respective insurance carriers waivers of the right of subrogation
with respect to the other, and Lessor and Lessee each do hereby
waive and release any claim they may have against the other for
damage or loss to their respective plants and facilities or for
loss of business income arising out of such damage or loss to the
extent that such damage or loss is covered by insurance, or would
be covered had the damaged Party carried the insurance coverage
required by the provisions of this Section 3.3.
3.3.10. Notice of Cancellation or Material Change.
Insurance policies described in subsections 3.3.1. through 3.3.6.
shall provide Lessor or Lessee, as applicable, with a minimum
thirty (30) days' advance written notice of cancellation,
non-renewal or material change in coverage.
3.3.11. Evidence of Insurance. Lessor and Lessee shall,
at all times during the Lease Term, provide each other with
current certificates of insurance clearly evidencing the
existence of insurance and the required provisions described
herein. Upon request of either, the other shall provide
certified copies of any of its insurance policies.
ARTICLE 4
IMPROVEMENTS AND ALTERATIONS
Section 4.1. Additions, Alterations, Changes and Improvements.
Lessee shall have the right from time to time to make additions,
alterations and changes (including demolition) in or to the MCI Plant
and to make, construct, place, and remove other improvements upon the
Leased Premises. Lessee shall take good care of the Office Building,
shall maintain the same in a good and reasonable state of repair, and
shall not materially alter, modify or change the same without the
written consent of Lessor. Unless otherwise provided by Lessor's
written consent, the exterior dimensions of the Office Building shall
not be enlarged, and all alterations, improvements and changes that
may be made to the Office Building shall be at the cost of Lessee. The
ownership of all improvements made by the Lessee to the Leased
Premises and Office Building during the term of the Original Site
Lease shall remain in Lessee and the termination of the Original Site
Lease shall not vest title to those improvements in Lessor. All
additions, alterations, and changes to the MCI Plant and other
improvements to the Leased Premises during the term of this Lease
shall remain the property of Lessee.
4.1.1. Temporary Access during Construction. Until the
MCI Road is completed, Lessee may have temporary access over Lessor's
Land through existing roads to permit Lessee's contractors, suppliers,
and other persons performing additions, alterations, or changes to the
MCI Plant, provided that Lessee shall schedule the use of Lessor's
roads so as not to unreasonably interfere with Lessor's entrance
gates.
Section 4.2. The Plant, Fixtures, Equipment and Personal
Property. At the expiration or earlier termination of this Lease,
Lessee shall return the Leased Premises to Lessor in as good a
condition as when originally let to Lessee under the Original Site
Lease or the Office Lease, as applicable, except for ordinary wear and
tear and damage by casualty. If Lessee should elect to accept the
lease of the Additional Leased Land, then at the expiration or earlier
termination of this Lease, Lessee shall return the Additional Leased
Land to Lessor in as good a condition as when originally let, except
for ordinary wear and tear and damage by casualty. Lessee may, at its
option, remove from the Leased Premises (excluding the Office
Building), no later than the date of expiration or earlier termination
of this Lease, any improvements made by Lessee during the term of the
Original Site Lease or during the term of this Lease. Any
improvements made by Lessee which are not timely removed shall become
the property of Lessor. Lessee shall also remove those improvements
made by Lessee, and designated by Lessor for removal to grade level.
Section 4.3. Risk of Loss. All property of any kind which may
be constructed or placed on the Leased Premises (whether belonging to
Lessee or to any third person) shall be at the sole risk of Lessee and
those claiming by, through or under Lessee, and Lessor shall not be
liable (except for its negligence and the negligence of its officers,
agents, employees and joint venturers) to Lessee or to those claiming
by, through or under Lessee or to third persons for any injury, loss
or damage to any person or property on the Leased Premises.
Section 4.4. Condition of Property. Lessee accepts the Leased
Premises in its current condition and Lessee assumes responsibility
for the condition of the Leased Premises provided, however, nothing in
this section shall be construed to abrogate the effects of Lessor's
indemnities granted in Section 6.6 of this Lease.
ARTICLE 5
USE OF PREMISES; COMPLIANCE WITH ORDERS; WORK
PERFORMED BY LESSEE
Section 5.1. Use of Premises, Compliance with Orders. The
Leased Premises may be used for (a) the production of melamine and
related products and (b) for other lawful uses to which Lessor may
consent provided that Lessor's consent shall not be unreasonably
withheld or delayed. However, no part of the Leased Premises shall be
used for the production of anhydrous ammonia or urea in any form (e.g
prilled, granular, synthesis, melt, etc.) unless Lessee is permitted
to do so under the provisions of the Feedstock Agreement. The Office
Building shall be used solely for general office purposes in
connection with the MCI Plant. Lessee shall, or shall cause any
sublessee to, comply with Applicable Law with respect to the use or
condition of the Leased Premises or the MCI Plant. Lessee shall,
however, have the right to contest any Applicable Law, and Lessee may
postpone compliance until final determination of such contest;
provided, however, Lessee, if required, shall furnish Lessor
reasonably satisfactory security against any loss by reason of any
lien against the Leased Premises arising out of the subject of such
contest and effectively prevent foreclosure thereof.
Section 5.2. Work Performed by Lessee. Lessee shall not do, or
permit others under its control to do, any work in the MCI Plant or on
the Leased Premises or Servitude Areas related to any repair,
rebuilding, alteration of or addition to the MCI Plant, unless Lessee
shall have first procured and paid for, or caused the procurement and
payment for, all requisite governmental permits and authorizations.
Lessor shall join in the application for any such permit or
authorization whenever required, but Lessee shall defend, indemnify
and hold Lessor harmless against and from all costs and expenses which
may be thereby incurred by Lessor. All such work shall be done in a
good and work- manlike manner and in compliance with Applicable Law.
Section 5.3. Standard of Care. Lessee shall maintain the
Leased Premises and operate the MCI Plant in accordance with industry
standards of care and diligence.
Section 5.4. Mechanics' Liens. If any lien shall be filed
against the interest of Lessor in the Leased Premises or asserted
against any rent payable hereunder by reason of work, labor, services
or materials supplied or claimed to have been supplied to the Leased
Premises at the request or with the permission of Lessee, or anyone
claiming under Lessee, Lessee shall, within thirty (30) days after
receipt of notice of the filing thereof or the assertion thereof
against such rents, cause the same to be discharged of record, or
effectively prevent the enforcement or foreclosure thereof against the
Leased Premises or such rents, by contest, payment, deposit, bond,
order of court or otherwise.
ARTICLE 6
ENVIRONMENTAL MATTERS Section 6.1.
Environmental Representations, Warranties and Covenants. Lessee
represents that, to its knowledge, there are not now existing in the
MCI Plant or in the Office Building any material violation of
Applicable Laws, or condition that would require remediation or other
responsive action under Applicable Law.
Section 6.2. Environmental Assessment. Lessor agrees to
deliver to Lessee copies of all prior environmental reports,
investigations, studies, audits, reviews, or other analyses, with
respect to the Leased Premises, conducted by or for Lessor, and which,
to Lessor's knowledge, are in Lessor's possession or control.
Section 6.3. Use of Hazardous Substances. Lessee shall, in
accordance with the requirements of Applicable Law, safely store, use
and dispose of, or cause to be safely stored, used and disposed of,
all materials including Hazardous Substances, which may be used or
generated by it in the MCI Plant or the Leased Premises.
Section 6.4. Obligation to Report. Lessee shall report to
Lessor any material violation of an Applicable Law or condition which
requires remediation or other responsive action under Applicable Law
on the Leased Premises or within the MCI Plant as soon as possible
following the discovery of the event giving rise to a violation, or
with respect to any unauthorized release or discharge of a Hazardous
Substance made to air, water or land from the MCI Plant. Lessor shall
report to Lessee any material violation of an Applicable Law or
condition which requires remediation or other responsive action under
Applicable Law on Lessor's Land or within the plants operated by
Lessor upon Lessor's Land as soon as possible following the discovery
of the event giving rise to a violation, or with respect to any
unauthorized release or discharge of a Hazardous Substance made to
air, water or land from the Lessor's Land or plants operated by Lessor
thereon.
Section 6.5. Environmental Indemnification by Lessee. In
addition to the obligations of Lessee to indemnify Lessor as set forth
elsewhere in this Lease, Lessee covenants and agrees to indemnify and
hold harmless and defend Lessor from and against any and all losses,
damages, injuries, liabilities, penalties, fines, judgments, claims,
demands, suits, actions, costs and expenses (including reasonable
attorneys' fees), arising out of or connected with all accidents,
injuries or damages, including improper transportation, handling,
storage or disposal of Hazardous Substances and from any release to
air, land or water of any Hazardous Substance resulting from the
operation of the MCI Plant. Notwithstanding the foregoing, Lessee
shall not be obligated to indemnify Lessor for any liability with
respect to any claim arising out of or in connection with
environmental contamination of the Leased Premises or Servitude Areas,
if the contamination is caused, in whole or in part, by the negligent
acts or omissions of Lessor, its employees, agents or contractors.
The indemnities set forth in this section shall be applicable with
respect to the Original Leased Premises from the date of commencement
of the Original Site Lease and shall survive the expiration or earlier
termination of this Lease.
Section 6.6. Environmental Indemnification by Lessor. In
addition to the obligations of Lessor to indemnify Lessee as set forth
elsewhere in this Lease, Lessor covenants and agrees to indemnify and
hold harmless and defend Lessee from and against any and all losses,
damages, injuries, liabilities, penalties, fines, judgments, claims,
demands, suits, actions, costs and expenses (including reasonable
attorneys' fees), arising out of or connected with all accidents,
injuries or damages, including improper transportation, handling,
storage or disposal of Hazardous Substances and from any release to
air, land or water of any Hazardous Substance resulting from the
operation of Lessor's plants upon Lessor's Land. Notwithstanding the
foregoing, Lessor shall not be obligated to indemnify Lessee for any
liability with respect to any claim arising out of or in connection
with environmental contamination of the Leased Premises, if the
contamination is not caused by the negligent acts or omissions of
Lessor, its employees, agents or contractors. The indemnities set
forth in this section shall survive the expiration or earlier
termination of this Lease.
Section 6.7. Post-Termination Exposure for Violations of
Applicable Law. Following termination of this Lease, Lessee agrees
to mitigate and/or remediate damage, if any, to the Leased Premises,
Servitude Areas, and Lessor's Land that Lessee has caused, by the
release to air, water or land of any Hazardous Substance. Mitigation
or remediation of damage, if any, shall be made to bring the Leased
Premises, Servitude Areas or Lessor's Land into compliance with
Applicable Law (or to allow full economic use of the property).
ARTICLE 7
UTILITIES AND CHARGES; LESSOR'S SERVICES
Section 7.1. Utilities and Charges. Lessee agrees to pay, or
cause to be paid, all charges for water, gas, sewer, electricity,
light, heat, or power, telephone or other service used, rendered or
supplied in connection with the MCI Plant and the Leased Premises
throughout the Lease Term and to indemnify and save harmless Lessor
against any liability or damage arising out of Lessee's failure to pay
the utility supplier for applicable charges.
Section 7.2. Inspection Rights. Lessee shall permit Lessor and
its agents or employees or contractors to enter into and upon the
Leased Premises at all reasonable times for the purpose of inspecting
the same subject to the provisions of Section 2.2 of this Lease. If
at any time when Lessee has discontinued operation of the MCI Plant,
Lessor has reasonable grounds to believe that a condition exists in
the MCI Plant which creates a hazardous condition with respect to the
plants owned by Lessor, Lessor may enter into the MCI Plant for the
purpose of checking for the existence of such condition. If Lessor,
acting in good faith, determines that a hazardous condition exists,
Lessor may immediately give Lessee notice of the existence of such
condition, and if the condition is within the control of Lessee,
Lessor may require that Lessee immediately correct the condition. If
the condition presents an immediate threat to life or injury to
persons, Lessor shall have the right, but not the obligation, to
correct the condition. The cost of correction shall be paid by the
Party responsible for the condition.
Section 7.3. Interface Agreement. Certain services or costs
provided to Lessee or shared by Lessor and Lessee, including certain
services described in this Lease are set forth in an agreement between
TNI and Lessee (the "Interface Agreement"), and Lessee shall continue
to pay such costs pursuant to the Interface Agreement, as amended
from time to time. This Lease shall not be considered to modify or
terminate the Interface Agreement. ARTICLE 8
DAMAGE OR DESTRUCTION; CONDEMNATION
Section 8.1. Damage or Destruction of MCI Plant. In the event
of damage to or destruction of the MCI Plant, or any major portion
thereof, by fire or other casualty, to such an extent that in the
reasonable judgment of Lessee the MCI Plant is not suitable for use
for Lessee's purposes under this Lease without repair or
reconstruction, then Lessee shall give written notice to Lessor, as
soon as practicable, but in no event later than twelve (12) months
from date of the casualty, whether Lessee intends to repair or rebuild
the MCI Plant. If Lessee elects not to repair or rebuild, then this
Lease shall terminate upon the earlier of two (2) years after the date
of Lessees' notice, or the date upon which the Lessee has removed the
improvement and the improvement Lessor has instructed the Lessee to
remove. If Lessee elects to repair or rebuild, Lessee shall commence
the repair or rebuilding within twelve (12) months from the date of
the casualty and thereafter diligently pursue the progress of the
repair or rebuilding until completion of the work. If work is not
completed within three (3) years from the date of the casualty, and
Lessee fails to provide Lessor with reasonable assurances regarding
Lessee's ability to achieve completion of the repair or rebuilding
within five (5) years from the date of the casualty; or,
notwithstanding such assurances, Lessee fails to achieve completion
within five (5) years from the date of the casualty, then Lessor may
terminate this Lease upon six (6) months' written notice to Lessee.
Section 8.2. Rent Payments to Continue. Lessee's obligation to
make payment of the rent and all other charges on the part of Lessee
to be paid and to perform all other covenants and agreements on the
part of Lessee to be performed shall not be affected by any such
destruction or damage, and Lessee hereby waives the provisions of any
statute or law now or hereafter in effect to the contrary; provided,
however, in the event of termination of this Lease as provided in the
immediately preceding Section, Lessee shall be relieved of all its
obligations and liabilities herein, including the payment of rent,
from and after the effective date of termination. In no event,
however, shall Lessee be required to pay rent or other charges during
a period of time when Lessee is unable to operate the MCI Plant
because the MCI Plant, Leased Premises, or Servitude Areas has
suffered damage as a result of Lessor's acts or omissions to act.
Section 8.3. Condemnation. If during the Lease Term, title to
all or substantially all of the Leased Premises shall be taken or
condemned by a competent authority for any public use or purpose, then
this Lease shall terminate at midnight on the day of the vesting of
title in such authority, and rent shall be paid to and adjusted as of
that day. For purposes of this Section 8.3 "substantially all of the
Leased Premises" shall be deemed to mean a taking of such a
substantial portion thereof that Lessee, as determined by it in its
reasonable discretion, cannot reasonably operate on the remainder in
substantially the same manner as before.
8.3.1. Awards. Lessor shall be entitled to the portion of any
award attributable to the value of the land comprising the Leased
Premises in the condition when leased, and Lessee shall be entitled to
the portion of the award attributable to the MCI Plant and other
improvements constructed or installed by Lessee, including any
increase in value of the land resulting from site preparation, but
excluding improvements made by Lessee to the Office Building. In the
event separate awards are made to Lessor and Lessee by the appropriate
governmental authority for the Leased Premises and for the
improvements thereon, including the MCI Plant and all machinery and
equipment so situated, Lessor and Lessee shall each, in its sole
discretion, determine if it will accept such separate award.
8.3.2. Partial Taking. If less than substantially all of the
Leased Premises shall be taken or condemned by a competent authority
for any public use or purpose, the Lease Term shall not be affected in
any way and the condemnation award shall be apportioned between Lessor
and Lessee as hereinabove provided. If no part of the improvements
or the MCI Plant is taken and Lessee can continue to operate in a
manner satisfactory to it, the condemnation award shall be paid to
Lessor. In the event of a taking which does not result in the
termination of this Lease, the rental payments provided in Section
1.10 of this Lease shall be reduced by the same percentage as the
percentage determined by dividing the total acres in the Leased
Premises into the total acres taken by condemnation.
8.3.3. Temporary Taking. If the use for a limited period of
all or part of the Leased Premises or the MCI Plant shall be taken by
right of eminent domain, this Lease shall not be thereby terminated,
and the Parties shall continue to be obligated under all of its terms
and provisions, subject, however, to the provisions of the Feedstock
Agreement, and Lessee shall be entitled to the entire award for such
temporary taking.
ARTICLE 9
WARRANTY; PRIORITY OF LEASE; ASSIGNMENT
Section 9.1. Warranty of Title. Lessor covenants and warrants
that it holds good and marketable title to the Leased Premises and
Servitude Areas; that Lessor has full right and authority to make this
Lease, and that Lessee, its successors and assigns, shall have quiet
and peaceful posses- sion during the Lease Term, subject to all
existing apparent servitudes and to those servitudes and restrictions
that have been recorded with the Clerk and Recorder of Ascension
Parish, Louisiana, and those rights reserved by Lessor in Section 1.8
of this Lease.
Section 9.2. Priority of Lease. Notwithstanding anything to
the contrary herein, this Lease (and any amendment or supplement
hereto executed in accordance with and pursuant to the provisions
hereof) and the estate of Lessee hereunder are, and shall continue to
be, superior to any and all subsequent encumbrances, mortgages, and
trust indentures, or any of them or any other security instrument,
constituting or granting a lien upon Lessor's interest in the Leased
Premises or in the land subject to the servitudes granted by Lessor to
Lessee herein or revenues or income therefrom.
Section 9.3. Assignment and Sublease. Lessee may assign this
Lease, in whole but not in part, or sublet the Leased Premises, in
whole but not in part, to a purchaser of the entire MCI Plant or to an
Affiliate of Lessee without the consent of Lessor, provided that the
assignee or sublessee expressly agrees in writing to perform all
obligations of Lessee under this Lease and the Feedstock Agreement.
Performance by any assignee or sublessee shall be considered as
performance pro tanto by Lessee. Lessor may assign its interest in
this Lease to any person who may acquire Lessor's Land, provided that
the assignee expressly agrees in writing to perform all obligations of
Lessor under this Lease and the Feedstock Agreement. Except as set
forth herein, this Lease shall not be assigned or the Leased Premises
sublet. An assignment or subletting shall not release Lessee from its
obligations under this Lease except by an express written agreement of
Lessor.
Section 9.4. Assignment for Security. The rights under this
Lease may be assigned in whole or in part by Lessor or Lessee as
collateral security for any obligation or undertaking of the assignor
or its Affiliate. Lessor or Lessee may create liens on their
respective interest in this Lease to secure payment of such
obligations. Upon written request of either Party's obligee, the
other Party shall deliver to the Party's obligee a written statement
whether the Lease is in full force and effect, whether the Lease has
been amended, modified, supplemented or restated, and whether either
Party is in default under the Lease. Additionally, the other Party
shall furnish the Party's obligee notice of any default by the Party
under the terms and provisions of this Lease, and the Party's obligee
shall have the right to cure the default during the same period of
time as allowed to the Party. Performance by the Party's obligee shall
be considered as performance pro tanto by the Party.
Section 9.5. Lessor's Additional Warranties. Lessor further
represents and warrants to Lessee that on and as of the date hereof:
A. it has all requisite power and authority to carry on the
business in which it is engaged and to perform its
respective obligations under this Lease;
B. the execution and delivery of this Lease have been duly
authorized and approved by all requisite corporate action;
C. it has all requisite power and authority to enter into this
Lease and perform its obligations hereunder;
D. the execution and delivery of this Lease does not, and
consummation of the transactions contemplated herein will
not, violate any of the material provisions of its
organizational documents, any material agreement pursuant to
which Lessor or its properties are bound or, to its
knowledge, any material laws applicable to Lessor; and
E. this Lease is valid, binding, and enforceable against Lessor
in accordance with its terms, subject to bankruptcy,
moratorium, insolvency, and other laws generally affecting
creditors' rights and general principles of equity (whether
applied in a proceeding in a court of law or equity).
Section 9.6. Lessee's Warranties. Lessee represents and
warrants to Lessor that on and as of the date hereof:
A. it has all requisite power and authority to carry on the
business in which it is engaged and to perform its
respective obligations under this Lease;
B. the execution and delivery of this Lease have been duly
authorized and approved by all requisite corporate action;
C. it has all requisite power and authority to enter into this
Lease and perform its obligations hereunder;
D. the execution and delivery of this Lease does not, and
consummation of the transactions contemplated herein will
not, violate any of the material provisions of its
organizational documents, any material agreement pursuant to
which Lessee or its properties are bound or, to its
knowledge, any material laws applicable to Lessee; and
E. this Lease is valid, binding, and enforceable against Lessee
in accordance with its terms, subject to bankruptcy,
moratorium, insolvency, and other laws generally affecting
creditors' rights and general principles of equity (whether
applied in a proceeding in a court of law or equity).
ARTICLE 10
REMOVAL AND DISPOSAL OF PROPERTY
Section 10.1. Removal of Property; Release of Landlord's Lien.
Any provision herein to the contrary notwithstanding, it is expressly
agreed and understood that the MCI Plant and all other improvements,
structures and property erected or placed on the Leased Premises by
Lessee shall remain the property of Lessee, that Lessee may sell and
convey all or a portion of the MCI Plant and other improvements
(except the Office Building), either together with or separately from
its interest under this Lease, and that Lessee, its assigns, or any
person otherwise entitled so to do, may remove at any time during the
term of this Lease or upon its termination, any and all buildings,
including foundations, pilings, machinery, equipment, appliances,
fixtures, and any other item of whatever nature which may have been
erected, installed, placed on or affixed to the Leased Premises by
Lessee (except the Office Building). Lessee agrees that upon the
earlier of the termination of this Lease or the release of the Office
Building from this Lease, Lessee will leave the Office Building in
usable condition, less normal wear and tear and damage by casualty.
Lessor hereby releases any lien and any other claim or right which it
may have under the laws of the State of Louisiana against the MCI
Plant and all other improvements, structures, equipment, machinery and
other property erected or placed on the Leased Premises to secure the
payment of the basic rental and additional rental reserved hereunder
or the performance of the other provisions contained herein.
ARTICLE 11
DEFAULT AND REMEDIES
Section 11.1. Lessee's Events of Default. The occurrence of any
one or more of the following events shall constitute a "Lessee's Event
of Default":
A. Lessee shall default in the due and punctual payment of the
basic rent or any Additional Rent payable hereunder, and
such default shall continue for fifteen (15) days after
receipt of written notice from Lessor;
B. Lessee shall neglect or fail to perform or observe any of
the covenants herein contained on Lessee's part to be
performed or observed (other than those referred to in
subsection A of this section) and Lessee shall fail to
remedy the same within thirty (30) days after Lessor shall
have given to Lessee written notice specifying such neglect
or failure (or within such additional period, if any, as may
be reasonably required to cure such default if it is of such
nature that it reasonably cannot be cured within the thirty
(30) day period);
C. there shall exist, on the part of Lessee, a Material Breach
(as defined in the Feedstock Agreement) under the Feedstock
Agreement, and the Material Breach shall continue beyond the
time period set forth in the Feedstock Agreement during
which Lessee may cure such Material Breach.
D. this Lease, the Leased Premises or the MCI Plant, or any
part thereof, shall be taken upon execution or by other
process of law, other than the right of condemnation,
directed against Lessee, or shall be taken upon or subject
to any attachment at the instance of any creditor of, or
claimant against, Lessee, and the attachment shall not be
discharged or disposed of within sixty (60) days after the
levy thereof, or the obligations of Lessee shall not be
fully assumed by such creditor or claimant; or
E. Lessee shall be involved in financial difficulties as
evidenced below and shall not cure the same after one
hundred twenty (120) days' notice from Lessor:
(1) by its admitting in writing its inability to pay its
debts generally as they become due;
(2) by its filing a petition in bankruptcy or for
reorganization or for the adoption of an arrangement
under the Bankruptcy Code (as now existing or in the
future amended) or an answer or other pleading
admitting the material allegations of such a petition
or seeking, consenting to, or acquiescing in the relief
provided under such Code;
(3) by its making an assignment of all or a substantial
part of its property for the benefit of its creditors;
(4) by its seeking or consenting to or acquiescing in the
appointment of a receiver or trustee for all or a
substantial part of its property;
(5) by its being adjudicated a bankrupt or insolvent;
(6) by the entry of a court order without the consent of
Lessee, which order shall not be vacated, set aside or
stayed within one hundred twenty (120) days from the
date of entry (i) appointing a receiver or trustee for
all or a substantial part of its property or (ii)
approving a petition filed against it for the effecting
of an arrangement in bankruptcy or for a reorganization
pursuant to the Bankruptcy Code or for any other
judicial modification or alteration of the rights of
creditors.
The provisions of subsection E of this Section 11.1 shall
not be deemed to apply to any assignee or sublessee of
Lessee or the financial condition of any such assignee or
sublessee so long as Lessee remains liable to Lessor for the
payment of the basic rental and Additional Rent reserved
herein and the performance of the other terms and provisions
of this Lease.
Section 11.2. Remedies of Landlord. If a Lessee's Event of
Default shall occur, Lessor shall have the right, at its election, at
any time while such Event of Default shall thereafter continue,
either:
A. to give Lessee written notice of its intention to terminate
this Lease on the date specified in such notice (but not
less than thirty (30) days from the date of such notice) and
unless such Event of Default be cured within the time period
permitted in Section 11.1 of this Lease, Lessee's right to
possession of the Leased Premises shall cease and this Lease
shall thereupon be terminated upon such date; or
B. subject to the limitations set forth in Section 11.6 below,
take whatever action at law or in equity as may appear
necessary or desirable to collect any rent due or to collect
from Lessee damages that Lessor has suffered from Lessee's
default; or
C. take whatever action at law or in equity as may appear
necessary or desirable to enforce any obligation, covenant
or agreement of Lessee.
Section 11.3. Lessor's Events of Default. The occurrence of any
one or more of the following events with respect to either TNI or
Guarantor shall constitute a "Lessor's Event of Default":
A. Lessor shall neglect or fail to perform or observe any of
the covenants herein contained on Lessor's part to be
performed or observed and Lessor shall fail to remedy the
same within thirty (30) days after Lessee shall have given
to Lessor written notice specifying such neglect or failure
(or within such additional period, if any, as may be
reasonably required to cure such default if it is of such
nature that it reasonably cannot be cured within the thirty
(30) day period);
B. there shall exist, on the part of TNI or Guarantor, a
Material Breach (as defined in the Feedstock Agreement)
under the Feedstock Agreement, and the Material Breach shall
continue beyond the time period set forth in the Feedstock
Agreement during which TNI or Guarantor, as the case may be,
may cure such Material Breach.
C. this Lease, the Lessor's Land or any part thereof shall be
taken upon execution or by other process of law, other than
the right of condemnation, directed against Lessor or shall
be taken upon or subject to any attachment at the instance
of any creditor of, or claimant against, Lessor, and the
attachment shall not be discharged or disposed of within
sixty (60) days after the levy thereof or the obligations of
Lessor shall not be fully assumed by such creditor or
claimant; or
D. Lessor shall be involved in financial difficulties as
evidenced below and shall not cure the same after one
hundred twenty (120) days' notice from Lessee:
(1) by its admitting in writing its inability to pay its
debts generally as they become due;
(2) by its filing a petition in bankruptcy or for
reorganization or for the adoption of an arrangement
under the Bankruptcy Code (as now existing or in the
future amended) or an answer or other pleading
admitting the material allegations of such a petition
or seeking, consenting to or acquiescing in the relief
provided under such Code;
(3) by its making an assignment of all or a substantial
part of its property for the benefit of its creditors;
(4) by its seeking or consenting to or acquiescing in the
appointment of a receiver or trustee for all or a
substantial part of its property; or
(5) by its being adjudicated a bankrupt or insolvent; or
(6) by the entry of a court order without the consent of
Lessee, which order shall not be vacated, set aside or
stayed within one hundred twenty (120) days from the
date of entry (i) appointing a receiver or trustee for
all or a substantial part of its property or (ii)
approving a petition filed against it for the effecting
of an arrangement in bankruptcy or for a reorganization
pursuant to said Bankruptcy Code or for any other
judicial modification or alteration of the rights of
creditors.
Section 11.4. Remedies of Lessee. If a Lessor's Event of
Default shall occur, Lessee shall have the right, at its election, at
any time while such Event of Default shall thereafter continue:
A. to give Lessor written notice of its intention to terminate
this Lease on the date specified in the notice (but not less
than thirty (30) days from the date of such notice), and,
unless such Event of Default be cured on or before the
proposed termination date, all of Lessee's obligations under
this Lease shall cease and the Lease shall terminate as of
the date of such notice;
B. subject to the limitations set forth in Section 11.6 below,
take whatever action at law or in equity as may appear
necessary or desirable to collect from Lessor damages that
Lessee has suffered from Lessor's Event of Default; or
C. to specifically enforce any obligation, covenant or
agreement of Lessor, by an action for specific performance
or by injunctive relief.
Section 11.5. Cumulative Remedies; Waiver Not Implied. The
specific remedies provided for in this Lease are cumulative and are
not exclusive of any other remedy. The failure of either Party to
insist in any one or more cases upon strict performance shall not be
construed as a waiver or relinquishment for the future. No acceptance
of rent with knowledge of any default shall be deemed a waiver of such
default. No acceptance by Lessee of feedstock under the Feedstock
Agreement with knowledge of Lessor's default shall be deemed a waiver
of the default.
Section 11.6. Waiver of Certain Damages. IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER ANY PROVISION OF THIS
LEASE (INCLUDING, WITHOUT LIMITATION, ANY INDEMNITY PROVISION HEREOF)
FOR PUNITIVE OR EXEMPLARY DAMAGES IN TORT OR CONTRACT. FURTHERMORE,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY UNDER ANY PROVISION
OF THIS LEASE FOR CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES. THE
PRECEDING SENTENCES SHALL NOT BE CONSTRUED, HOWEVER, AS LIMITING THE
OBLIGATION OF EITHER PARTY HEREUNDER TO INDEMNIFY THE OTHER PARTY
AGAINST CLAIMS ASSERTED BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED
TO, THIRD PARTY CLAIMS FOR PUNITIVE, EXEMPLARY, CONSEQUENTIAL,
INCIDENTAL, OR INDIRECT DAMAGES.
Section 11.7. Injunctive Relief. The Parties acknowledge that
irreparable damage may occur in the event that certain provisions of
this Lease are not performed in accordance with their specific terms
or are otherwise breached and such performance does not occur or such
breach is not cured within the period set forth in this Lease. Each of
the Parties therefore agrees that in any such situation, the
non-defaulting Party shall be entitled to an injunction or injunctions
to prevent non-performance or breach of such provisions of this Lease
and to enforce specifically the terms and provisions hereof, without
the necessity of posting a bond or other security as may be required
by law, this being in addition to any other remedy to which such Party
is otherwise entitled under this Lease.
ARTICLE 12
GUARANTY
Section 12.1. Guaranty. Mississippi Chemical Corporation, a
Mississippi corporation with its principal office in Yazoo City,
Mississippi (the "Guarantor"), hereby intervenes into this Lease and
unconditionally guarantees the full and faithful performance by Lessor
of all of the terms, provisions, representations, warranties and
obligations of Lessor pursuant to this Lease, including, without
limitation, the indemnification and remedial provisions of this Lease.
The Guarantor further agrees that Lessee may, without notice to or
further assent of the Guarantor, and without in any way releasing or
impairing the obligations of the Guarantor hereunder: (i) waive
compliance with, or any default under, this Lease; (ii) modify or
amend any provisions of this Lease with the written consent of Lessor
only; (iii) grant extensions or renewals of any of the obligations of
Lessor; and (iv) in all respects deal with Lessor as if this guaranty
were not in effect. The obligations of the Guarantor under this
guaranty shall remain in force notwithstanding any event that would,
in the absence of this clause, result in the release or discharge by
operation of law of the Guarantor from the performance of its
obligations hereunder. The liability of the Guarantor under this
guaranty to Lessee shall be a guaranty of performance and of payment,
not merely a guaranty of collection, and the liability of the
Guarantor under this guaranty shall not be contingent upon the
exercise by Lessee of any right it may have in respect of the Lessor.
This guaranty obligation is not intended to and shall not release or
extinguish any obligations of Lessor to Lessee. The provisions of
this section are not intended to create and shall not create or impose
any obligations on the Guarantor in favor of any third person, the
provisions of this section being only for the benefit of Lessee, its
permitted successors and assigns.
Section 12.2. Guarantor's Representations and Warranties.
Guarantor represents and warrants to Lessee that on and as of the date
hereof:
A. it has all requisite power and authority to carry on the
business in which it is engaged and to perform its
respective obligations under this Lease;
B. the execution and delivery of this guaranty have been duly
authorized and approved by all requisite corporate action;
C. it has all requisite power and authority to enter into this
guaranty and perform its obligations hereunder;
D. the execution and delivery of this guaranty does not, and
consummation of the transactions contemplated herein will
not, violate any of the material provisions of its
organizational documents, any material agreement pursuant to
which Guarantor or its properties are bound or, to its
knowledge, any material laws applicable to Guarantor; and
E. this guaranty is valid, binding, and enforceable against
Guarantor in accordance with its terms, subject to
bankruptcy, moratorium, insolvency, and other laws generally
affecting creditors' rights and general principles of equity
(whether applied in a proceeding in a court of law or
equity).
ARTICLE 13
DISPUTE RESOLUTION
Section 13.1. Procedures. Any dispute, controversy or claim
arising out of or relating to this Lease, or the breach or performance
hereof, including, but not limited to, any disputes concerning the
interpretation of the terms and provisions hereof, shall be resolved
through the use of the procedures described in this Article 13.
Section 13.2. Good-Faith Negotiations. The Parties will
initially attempt in good faith to resolve any disputes, controversy
or claim arising out of or relating to this Lease. Should the
Parties' representatives directly involved in any dispute, controversy
or claim be unable to resolve same within a reasonable period of time,
such dispute, controversy or claim shall be submitted to the
respective senior officers of the Parties with such explanation or
documentation as the Parties deem appropriate to aid such senior
officers in their consideration of the issues presented. The date the
matter is first submitted to the senior officers of the Parties shall
be referred to as the "Submission Date." The senior officers shall
attempt in good faith, through the process of discussion and
negotiation, to resolve any dispute, controversy, or claim presented
to them within forty-five (45) days after the Submission Date.
Section 13.3. Mediation. If the senior officers of the Parties
cannot resolve the dispute, controversy, or claim submitted to them
within forty-five (45) days after the Submission Date, the Parties
shall attempt in good faith to settle the matter by submitting the
dispute, controversy or claim to mediation under the Mediation Rules
of the American Arbitration Association within sixty (60) days after
the Submission Date, using any mediator upon which they mutually
agree. If the Parties are unable to mutually agree upon a mediator
within seventy-five (75) days after the Submission Date, the mediator
shall be selected by the American Arbitration Association. The cost
of the mediator will be split equally between the parties unless they
agree otherwise in writing.
Section 13.4. Arbitration. If the matter has not been resolved
pursuant to the aforesaid mediation procedure within thirty (30) days
of the initiation of such procedure, either Party may request that the
matter be submitted to a board of three (3) independent arbitrators.
Either Lessor or Lessee may institute such arbitration by giving
written notice to the other at any time after the thirtieth (30th) day
following institution of the mediation procedure and designating one
(1) independent arbitrator. Within ten (10) days thereafter, the
other Party shall designate a second independent arbitrator, and such
two (2) arbitrators shall thereafter select the third independent
arbitrator. If the responding Party shall fail to appoint an
arbitrator within the said ten (10) day period provided above, the
American Arbitration Association shall be called upon by the other
Party to appoint such arbitrator, and such two (2) shall thereupon
select a third arbitrator, and the three (3) thus chosen shall
constitute the board of arbitration. All arbitrators shall be
qualified by education or experience within the chemical industry to
decide the issues presented for arbitration. No arbitrator shall be a
current or former director, officer, or employee of either Party or
its Affiliates; an attorney (or member of a law firm) who has rendered
legal services to either Party or its Affiliates within the preceding
three (3) years; or an owner of a material amount of the common stock
of either Party, or its Affiliates. A hearing shall be held by the
three (3) arbitrators at a location mutually agreeable to the parties
or if the Parties are unable to agree on a site, the arbitrators shall
select the site.
Section 13.5. Decision and Awards of Arbitrators. A decision of
the matter submitted to the arbitrators shall be rendered promptly and
in accordance with the rules of the American Arbitration Association,
except to the extent such rules are modified by this Article 13 or any
other express written agreement of the Parties. In all arbitration
proceedings, with respect to each particular claim in dispute, the
arbitrators shall be required to agree upon and approve either one of
the positions advocated by Lessee or one of the positions advocated by
Lessor, whichever best reflects and implements the purposes and intent
of this Lease. Any decision rendered by the arbitrators which does
not reflect either a position advocated by Lessee or a position
advocated by Lessor shall be beyond the scope of authority granted by
the arbitrators and consequently may be overturned by either Party.
Each Party hereby irrevocably waives, to the fullest extent permitted
by law, any objection it may have to the arbitrability of any such
disputes, controversies or claims. The decision of a majority of the
arbitrators shall be in writing and shall be final and binding upon
all parties hereto as to the issues submitted. Judgment upon the
award rendered may be entered in any court having jurisdiction
thereof. The cost of arbitration shall be borne by the Party whose
contention was not upheld by the arbitration proceedings, unless
otherwise provided in the arbitration award.
Section 13.6. Exclusive Methods. Each Party agrees to be bound
by any determination made in accordance with the dispute resolution
provisions set forth in the Feedstock Agreement with respect to any
matter resolved pursuant to the dispute resolution provisions of the
Feedstock Agreement. Any Party may, however, raise matters relative
to the Feedstock Agreement in any pending dispute resolution
proceeding between Lessor and Lessee with respect to this Lease so
long as such matters have not previously been resolved in a dispute
resolution proceeding under the Feedstock Agreement. Likewise, any
Party may raise matters relative to this Lease in any pending dispute
resolution proceeding between Lessor and Lessee with respect to the
Feedstock Agreement, so long as such matters have not previously been
resolved in a dispute resolution proceeding under this Lease. In the
event the dispute resolution provisions of either this Lease or the
Feedstock Agreement have been invoked, then either Party shall have
the right to require that all then-existing disputes under either this
Lease or the Feedstock Agreement be resolved at the same time through
the same dispute resolution procedure.
Section 13.7. Rules. All deadlines specified herein may be
extended by mutual written agreement of the Parties. The procedures
specified herein shall be the sole and exclusive procedures for the
resolution of disputes between the Parties arising out of or relating
to this Lease; provided, however, that a Party may seek a preliminary
injunction or other preliminary judicial relief from a court of
competent jurisdiction pending mediation and/or arbitration of a
dispute, as well as permanent injunctive relief from a court of
competent jurisdiction in accordance with the terms of this Lease.
Despite any injunctive relief, the Parties will continue to
participate in good faith in the procedures specified herein. All
applicable statutes of limitation, including, without limitation,
contractual limitation periods provided for in this Lease, shall be
tolled while the procedures specified in this section are pending.
The Parties will take all actions, if any, necessary to effectuate the
tolling of any applicable statutes of limitation.
ARTICLE 14
GENERAL
Section 14.1. Notices. All notices and other communications
hereunder shall be validly given or made if in writing, when delivered
personally (by courier service or otherwise), when delivered by
facsimile, or when actually received when mailed by first-class
certified United States mail, postage prepaid and return receipt
requested, and all legal process with regard hereto shall be validly
served when served in accordance with applicable law, in each case to
the address of the Party to receive such notice or other communication
set forth below, or at such other address as either Party hereto may
from time to time advise in writing to the other Party pursuant to
this section:
If to Lessor: Triad Nitrogen, Inc. Post Office 1851
Owen Cooper Administration Building Highway 49 East
Yazoo City, MS 39194
Attention: Rosalyn B. Glascoe, Corporate Secretary
Telephone: (601) 746-6302 Facsimile: (601) 751-2231
with copy to: Mississippi Chemical Corporation Post Office Box
388
Owen Cooper Administration Building Highway 49 East
Yazoo City, MS 39194
Attention: Rosalyn B. Glascoe, Corporate Secretary
If to Lessee: Melamine Chemicals, Inc. River Road, Hwy. 18
Post Office 748
Donaldsonville, LA 70346-0748 Attention: President and
Chief Operating Officer Telephone: (504) 473-3121
Facsimile: (504) 473-0550
Lessee or Lessor may change the address and name of addressee to which
subsequent notices are to be sent by notice to the other given as
aforesaid.
Section 14.2. Force Majeure. In the event either Lessor or
Lessee shall be delayed in performing their respective obligations
under this Lease as a result of strikes or other labor trouble, fire,
flood, riot, war, embargo, accident, acts of God, requisitions or
direction by the Government, priorities or compliance with
governmental action or regulation, shortages of essential materials or
equipment, or any other contingency beyond reasonable control of the
obligee, whether similar to or dissimilar from the above enumerated
causes, the obligee's obligation to perform its undertakings shall be
excused during the period such force majeure shall continue; provided,
however, that force majeure shall not excuse or delay a payment
obligation.
Section 14.3. Governing Law. This Lease shall be construed and
enforced in accordance with the laws of the State of Louisiana.
Wherever in this Lease it is provided that either Party shall or will
make any payment or perform or refrain from performing any act or
obligation, each such provision shall, even though not so expressed,
be construed as an express covenant to make such payment or to
perform, or not to perform, as the case may be, such act or
obligation.
Section 14.4. Unenforceable or Illegal Provisions. If any
provision of this Lease or the application thereof to any person or
circumstances shall, to any extent, be determined to be invalid or
unenforceable, the remainder of this Lease and the application of its
provisions to persons or circumstances other than those as to which it
has been determined to be invalid or unenforceable, shall not be
affected thereby, and such provisions of this Lease shall be valid and
shall be enforced to the fullest extent permitted by law.
Section 14.5. Captions; Headings. The captions and headings in
this Lease are for convenience and reference only and in no way
define, limit or describe the scope or intent of this Lease or any
part thereof, or in anywise affect this Lease and shall not be
considered in any construction thereof.
Section 14.6. Successors and Assigns. The provisions of this
Lease shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors, assigns and sublessees.
Section 14.7. Several Counterparts. This Lease shall be
executed in several counterparts, each of which counterpart shall be
considered as an original without the presentation of the others.
Section 14.8. Short Form Lease. Lessor and Lessee have executed
a short form or memorandum of this Lease for the purposes of recording
public notice of this Lease in the official records of the Clerk and
Recorder of the Parish of Ascension, State of Louisiana.
Section 14.9. Relationship of Parties. The relationship of the
Parties shall be one of lessor and lessee only, and shall not be
considered a partnership, joint venture, license arrangement or
unincorporated association.
Triad Nitrogen, Inc., has caused this Lease to be signed in
the presence of the undersigned witnesses by its duly authorized
officials and officers on the 9th day of October, 1997.
Witnesses as to Triad TRIAD NITROGEN, INC.
By: /s/ Charles O. Dunn
/s/ Witness --------------------
- ------------ Charles O. Dunn, President
/s/ Witness
- ------------
ATTEST:
/s/ Assistant Corporate Secretary
----------------------------------
Assistant Corporate Secretary
Mississippi Chemical Corporation has caused this Lease to be
signed in the presence of the undersigned witnesses by its duly
authorized officials and officers on the 9th day of October, 1997.
Witnesses: MISSISSIPPI CHEMICAL CORPORATION
/s/ Witness By: /s/ Charles O. Dunn
- ------------ -------------------
Charles O. Dunn, President
/s/ Witness
- ------------
ATTEST:
/s/ Assistant Corporate Secretary
----------------------------------
Assistant Corporate Secretary
Melamine Chemicals, Inc., has caused this Lease to be signed in
the presence of the undersigned witnesses, by its duly authorized
officials and officers on the 9th day of October, 1997.
Witnesses as to Lessee: MELAMINE CHEMICALS, INC.
/s/ Witness By: /s/ Wayne D. DeLeo
- ------------ -------------------
Wayne D. DeLeo, Chief Financial Officer
/s/ Witness
- ------------
ACKNOWLEDGMENT
STATE OF MISSISSIPPI
COUNTY OF YAZOO
Before me, the undersigned authority, personally came and appeared
Charles O. Dunn, the President of Triad Nitrogen, Inc., to me known
to be the person mentioned in and who signed the foregoing instrument,
and who, being duly sworn, did acknowledge and declare in the presence
of the two witnesses whose names are subscribed to said instrument,
that he signed said instrument for and on behalf of said corporation,
being duly authorized so to act, for the purposes mentioned therein.
IN WITNESS WHEREOF, I have hereunto affixed my hand and seal of office
on this the 9th day of October, 1997, at Yazoo City, Mississippi.
WITNESSES: TRIAD NITROGEN, INC.
/s/ Witness By: /s/ Charles O. Dunn
- ------------ -------------------
Charles O. Dunn, President
/s/ Witness
- ------------
/s/ Lynn Montgomery
--------------------
Notary Public
My Commission Expires: January 15, 1999
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF
Before me, the undersigned authority, personally came and
appeared Wayne D. DeLeo, the Chief Financial Officer of Melamine
Chemicals, Inc., to me known to be the person mentioned in and who
signed the foregoing instrument, and who, being duly sworn, did
acknowledge and declare in the presence of the two witnesses whose
names are subscribed to said instrument, that he signed said
instrument for and on behalf of said corporation, being duly
authorized so to act, for the purposes mentioned therein.
IN WITNESS WHEREOF, I have hereunto affixed my hand and seal of
office on this the 9th day of October, 1997, at Donaldsonville, La.
WITNESSES: MELAMINE CHEMICALS, INC.
/s/ Witness By: /s/ Wayne D. DeLeo
- ------------ -------------------
Wayne D. DeLeo, Chief Financial Officer
/s/ Witness
- ------------
/s/ Monica B. Crews
--------------------
Notary Public
My Commission Expires: At Death
ACKNOWLEDGMENT
STATE OF MISSISSIPPI
COUNTY OF YAZOO
Before me, the undersigned authority, personally came and appeared
Charles O. Dunn, the President and Chief Executive Officer of
Mississippi Chemical Corporation., to me known to be the person
mentioned in and who signed the foregoing instrument, and who, being
duly sworn, did acknowledge and declare in the presence of the two
witnesses whose names are subscribed to said instrument, that he
signed said instrument for and on behalf of said corporation, being
duly authorized so to act, for the purposes mentioned therein.
IN WITNESS WHEREOF, I have hereunto affixed my hand and seal of office
on this the 9th day of October, 1997, at Yazoo City, Mississippi.
WITNESSES: MISSISSIPPI CHEMICAL CORPORATION
/s/ Witness By: /s/ Charles O. Dunn
- ------------ --------------------
Charles O. Dunn, President and Chief Executive
Officer
/s/ Witness
- ------------
/s/ Lynn Montgomery
--------------------
Notary Public
My Commission Expires: January 15, 1999