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EXHIBIT 10.22
NOT TO EXCEED $11,250,000
MISSISSIPPI BUSINESS FINANCE CORPORATION
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS,
SERIES 1993
(VICKSBURG CHEMICAL COMPANY)
NOVEMBER 10, 1993
BOND PURCHASE AGREEMENT
Mississippi Business Finance Corporation
Jackson, Mississippi
Vicksburg Chemical Company
Vicksburg, Mississippi
The First National Bank of Boston and NationsBank of Georgia, N.A.
(collectively, the "Purchasers") offer to enter into this Bond Purchase
Agreement (this "Agreement") with the Mississippi Business Finance Corporation,
a public corporation organized and existing under the laws of the State of
Mississippi (the "State") (the "Issuer") and Vicksburg Chemical Company, a
corporation organized and validly existing under the laws of the State of
Delaware, and qualified to do business and in good standing under the laws of
the State (the "Company"), which, upon your acceptance will be binding upon the
Issuer, the Company and the Purchasers.
1. BACKGROUND
(a) The Issuer will issue and sell its Taxable Industrial
Development Revenue Bonds, Series 1993 (Vicksburg Chemical Company) in the
maximum aggregate principal amount of $11,250,000 (the "Bonds") to provide for
the permanent financing of the Project (as defined in the Loan Agreement, as
hereinafter defined) to be located in the State and to be owned by the Company.
The Issuer and the Company will enter into a Loan Agreement (the "Loan
Agreement") dated as of December 1, 1993, providing, among other things, for
payments at times and in amounts sufficient to pay when due the principal of
and interest on the Bonds.
(b) The Bonds will be issued pursuant to the provisions
of Title 57, Chapter 10, Article 7 of the Mississippi Code of 1972, as amended
and supplemented (the "Act"), resolutions of the Issuer dated October 14, 1993
and November 10, 1993 (collectively the
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"Resolution") and a Trust Indenture (the "Indenture") dated as of December 1,
1993, between the Issuer and First National Bank of Vicksburg, Vicksburg,
Mississippi, as Trustee (the "Trustee"). The Bonds are limited obligations of
the Issuer, payable solely from payments to be made by the Company pursuant to
the Loan Agreement and a promissory note delivered to the Issuer (the "Note").
Payment of the Bonds is secured by (i) the lien of the Indenture on the trust
estate created thereunder which consists generally of money deposited in the
funds and accounts established under the Indenture and income from the
investment of such money as required by the Indenture, the Loan Agreement and
the Note and (ii) a lien and security interest on the Project as provided for
in the Loan Agreement by the Deed of Trust from the Company to the Issuer (the
"Deed of Trust") (as defined in the Indenture), and the Security Agreement from
the Company to the Issuer (as defined in the Indenture) (the "Security
Agreement"). The Loan Agreement, Note, Deed of Trust and Security Agreement
are referred to herein collectively as the "Loan Documents." This Agreement,
the Bonds and the Indenture are referred to herein collectively as the "Bond
Documents."
(c) The Bonds will contain the terms and provisions as
described in the Indenture and will bear interest at the rates described in the
Indenture.
(d) The terms and provisions of the Bonds have been
approved by the Company which enters into this Agreement in order to induce the
Purchasers to purchase the Bonds at the price set forth herein.
(e) No preliminary official statement, final official
statement or other disclosure document will be distributed in connection with
the issuance and sale of the Bonds.
(f) It is intended that interest on the Bonds will be
includable in the gross income of the holder thereof for federal income tax
purposes.
(g) The Purchasers are purchasing the Bonds for their own
account and will, on the Initial Closing Date (as hereinafter defined), execute
a document satisfactory to the Issuer agreeing not to sell or otherwise
transfer or dispose of the Bonds without (i) complying with applicable
disclosure and registration requirements of federal and state securities laws
and (ii) if such transfer or disposition is to an entity other than a United
States bank, thrift institution, insurance company, or other U.S. company
having the principal business of providing commercial financing, receiving the
prior written consent of the Issuer, which consent shall not be withheld
unreasonably.
2. JOINT REPRESENTATION OF THE ISSUER AND THE COMPANY
The Issuer and the Company represent that the Project will constitute
a "project" within the meaning of the Act.
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3. REPRESENTATIONS OF THE ISSUER
The Issuer makes the following representations, all of which will
survive the purchase and offering of the Bonds.
(a) The Issuer is a public corporation organized and
existing under the laws of the State.
(b) The Issuer has complied with all provisions of the
State Constitution and laws governing the issuance and sale of the Bonds and
has full power and authority to authorize and thereafter consummate all
transactions contemplated by the Bond Documents, the Loan Documents, and all
other agreements relating thereto.
(c) The Issuer has duly adopted the Resolution, has duly
authorized all necessary actions to be taken by the Issuer and has obtained all
approvals necessary and appropriate for: (i) the issuance and sale of the
Bonds upon the terms set forth herein and in the Indenture, (ii) the execution,
delivery, receipt and due performance of the Bond Documents, the Loan
Documents, and any and all other agreements and documents as may be required to
be executed, delivered and received by the Issuer in order to carry out, give
effect to and consummate the transaction contemplated hereby and by the
issuance and sale of the Bonds and (iii) the carrying out, giving effect to,
and consummation of the transactions contemplated hereby, by the Indenture and
by the issuance and sale of the Bonds. The Bonds and executed counterparts of
other Bond Documents and the Loan Documents will be delivered to the Purchasers
by the Issuer on the Initial Closing Date (as hereinafter defined).
(d) To the best of the Issuer's knowledge, there is no
action, suit, proceeding, inquiry, investigation at law or in equity or before
or by any court, public board or body pending or threatened against or
affecting the Issuer (or any basis therefor), wherein an unfavorable decision,
ruling or finding would adversely affect the transactions contemplated hereby
or by the issuance and sale of the Bonds or the validity of the Bond Documents,
the Loan Documents, or any agreement or instrument to which the Issuer is or is
expected to be a party and which is used or contemplated for use in the
consummation of the transaction contemplated hereby or by the issuance and sale
of the Bonds.
(e) The execution and delivery by the Issuer of the Bond
Documents, the Loan Documents, and other agreements contemplated hereby or by
the issuance and sale of the Bonds and compliance with the provisions thereof
will not conflict with or constitute, on the part of the Issuer, a breach of or
a default under any existing law, court or administrative regulation, decree or
order or any agreement, indenture, mortgage, lease or other instrument to which
the Issuer is subject or by which the Issuer is bound.
(f) Any certificate signed by any of the Issuer's
authorized officers and delivered to the Purchasers shall be deemed a
representation and warranty by the Issuer to the Purchasers as to the
statements made therein.
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4. REPRESENTATIONS OF THE COMPANY
The Company makes the following representations, all of which will
survive the purchase and offering of the Bonds.
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and is
duly qualified as a foreign corporation and is in good standing to do business
in the State.
(b) The Company has full corporate power and authority to
authorize and thereafter consummate on its behalf all transactions contemplated
by the Bond Documents, the Loan Documents, and any and all other agreements
relating thereto.
(c) The Company has duly authorized all necessary actions
to be taken by the Company for (i) the execution, delivery, receipt and due
performance of this Agreement, the Loan Documents, and all other agreements and
documents as may be required to be executed, delivered and received by the
Company in order to carry out, give effect to and consummate the transaction
contemplated hereby and by the issuance and sale of the Bonds, (ii) the
carrying out, giving effect to and consummation of the transactions
contemplated by the Indenture, the issuance and the sale of the Bonds, this
Agreement, and the Loan Documents, and (iii) the Loan Documents, this
Agreement, and any related documents executed by the Company to constitute
valid and binding obligations of the Company enforceable in accordance with
their respective terms, except to the extent that the enforceability thereof
may be limited (A) by bankruptcy, reorganization, or similar laws limiting the
enforceability of creditors' rights generally or (B) by the validity of any
discretionary equitable remedies.
(d) The Company's execution and delivery of this
Agreement, the Loan Documents, and the other documents contemplated hereby and
by the issuance and sale of the Bonds and compliance with the provisions
thereof will not conflict with or constitute on the Company's part a breach of
or a default under any existing law, court or administrative regulation, decree
or order or any agreement, indenture, mortgage, lease or other instrument to
which the Company is subject or by which the Company is bound.
(e) The Company has obtained or will obtain as and when
required by applicable law all approvals, licenses, permits, or other
governmental authorizations required in connection with the execution and
delivery of and performance by the Company of its obligations under this
Agreement, the Loan Documents and in relation to the acquisition, construction,
installation, operation and financing of Project.
(f) Any certificate signed by any of the Company's
authorized officers and delivered to the Purchasers shall be deemed a
representation and warranty by the Company to the Purchasers as to the
statements made therein.
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(g) To the best of the Company's knowledge, there is no
action, suit, proceeding, inquiry, investigation at law or in equity or before
or by any court, public board or body pending or threatened against or
affecting the Company (or any basis therefor), other than Disclosed Litigation
(as defined in the Loan Agreement) wherein an unfavorable decision, ruling or
finding would have a material, adverse effect on the transactions
contemplated hereby or by the issuance and sale of the Bonds or the validity of
the Bonds, the Indenture, the Loan Documents, or any agreement or instrument to
which the Company is or is expected to be a party and which is used or
contemplated for use in the consummation of the transaction contemplated
hereby.
5. COVENANTS OF THE COMPANY
The Company covenants and agrees to the following covenants, all of
which will survive the purchase and offering of the Bonds and any
investigations made by or on behalf of the Purchasers.
(a) The Company agrees to indemnify and hold harmless the
Issuer, its counsel, Bond Counsel, the Purchasers, the Trustee, any officer,
agent or employee of the Issuer and each person, if any, who controls any of
the foregoing within the meaning of Section 15 of the Securities Act of 1933,
as amended, or Section 20 of the Securities Exchange Act of 1934, as amended
(collectively referred to herein as the "Indemnified Parties"), against any and
all losses, claims, damages, liabilities or expenses whatsoever arising out of
or resulting from or in any way related to the issuance and sale of the Bonds,
any breach by the Company of any of, or the inaccuracy of any of, its
representations, warranties and covenants set forth in this Agreement, and the
acquisition, installation, equipping and the use of the Project; provided,
however, that the Company shall not indemnify and hold harmless any Indemnified
Party from damages that result from negligence or intentional misconduct on the
part of the Indemnified Party seeking such indemnity.
If any action is brought against an Indemnified Party based
upon the information described in the preceding paragraph and in respect of
which indemnity may be sought against the Company, the Indemnified Party shall
promptly notify the Company in writing and the Company shall promptly assume
the defense thereof, including the employment of counsel reasonably acceptable
to the Indemnified Party, the payment of all expenses, and the right to
negotiate and consent to settlement. An Indemnified Party has the right, at
its own expense, to employ separate counsel in any such action and to
participate in the defense thereof. The Company shall not be liable for any
settlement of any such action effected without its consent, but if settled with
the consent of the Company, or if there be a final judgment for the plaintiff
in any such action with or without its consent, the Company agrees to indemnify
and hold harmless the Indemnified Party from and against any loss or liability
by reason of such settlement or judgment.
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(b) The Company will not take or omit to take, as may be
applicable, any action which would, in any way, cause the proceeds of the Bonds
to be applied in a manner contrary to the requirements of the Bond Documents
and the Loan Documents.
(c) Whether or not the sale of the Bonds by the Issuer to
the Purchasers is consummated, the Company agrees that the Purchasers shall
have no obligation to pay any costs or expenses incident to the performance of
the obligations of the Issuer or the Purchasers under this Agreement. All
costs and expenses to affect the preparation, issuance, sale and delivery of
the Bond Documents, the Loan Documents, and all related documents, and the fees
and expenses of the Issuer and of Bond Counsel shall be paid by the Company.
6. PURCHASE, SALE AND DELIVERY OF THE BONDS
(a) On the basis of the representations, warranties and
covenants contained herein, and in the other agreements referred to herein and
subject to the terms and conditions herein set forth, on the Initial Closing
Date the Purchasers agree to purchase from the Issuer and the Issuer agrees to
sell to the Purchasers all or any portion of the Bonds for a purchase price of
one hundred percent (100%) of the principal amount of the Bonds issued and
sold, as provided for hereunder and in the Indenture. Pursuant to the terms
hereof, sixty percent (60%) of the aggregate principal amount of the Bonds
shall be purchased by The First National Bank of Boston and the remaining forty
percent (40%) of the aggregate principal amount of the Bonds shall be purchased
by NationsBank of Georgia, N.A.
(b) The Issuer will deliver the Bonds to or for the
account of the Purchasers against payment of the purchase price. The payment
of the purchase price may be made in the form of periodic advances of the
principal amount of the Bonds, up to the maximum principal amount. Such
advances, including the initial advance made upon the delivery of the Bonds,
shall be made by the Purchasers: (i) upon the written request of the Company,
(ii) subject to the satisfaction (in the Purchasers' opinion) of the conditions
set forth in the Bond Documents for making such advances, and (iii) in the
manner and according to the Issuer's written instructions. The Bonds will be
dated as of the Initial Closing Date, will be delivered in fully registered
form, will be registered to the Purchasers, and will be issued in the amounts
and in the form specified in the Indenture. The Bonds may be in printed,
engraved, typewritten or photocopied form and each such form shall constitute
"definitive form".
(c) The Bonds shall bear interest at the rates, mature on
the date and have such other terms as described in the Indenture.
(d) The Purchasers shall solely determine the principal
amount of the Bonds to be advanced from time to time to the Trustee or the
Company.
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7. TRANSACTION DOCUMENTS
On or prior to December 1, 1993 or such other date mutually agreeable
to the Issuer, the Company and the Purchasers (the "Initial Closing Date"), the
Purchasers shall be provided with a copy of each of the Bond Documents, the
Loan Documents, and all related documents duly executed by all parties thereto
as certified to the satisfaction of the Purchasers. The Issuer and the Company
shall immediately upon their execution provide the Purchasers with any
amendments of the Bond Documents, Loan Documents, and related documents.
8. CONDITIONS TO THE PURCHASERS' OBLIGATIONS TO PURCHASE BONDS
AND TO MAKE SUBSEQUENT ADVANCES OF PRINCIPAL
a. Conditions to Purchase of the Bonds on the Initial
Closing Date
The obligation of the Purchasers to purchase and pay for the Bonds on
the Initial Closing Date shall be subject to the following conditions
precedent:
(1) There shall exist no action, suit,
investigation, litigation or proceeding affecting the Company or any Related
Entity (as defined in the Loan Agreement) pending or threatened before any
court, governmental authority or arbitrator that, if adversely determined,
would have a material adverse effect on the business, condition (financial or
otherwise), operations, performance, properties or prospects of the Company or
any Related Entity (other than Disclosed Litigation) or that purports to affect
the legality, validity or enforceability of the Credit Agreement and related
documents (as defined in the Loan Agreement), Loan Documents, the Bond
Documents or the consummation of the transactions contemplated hereby or
thereby.
(2) All conditions to the issuance of the Bonds,
other than the payment for the Bonds to be made by the Purchasers on the
Initial Closing Date, and to the Purchasers' obligations under this Agreement
to purchase the Bonds, shall have been satisfied or waived in accordance with
the terms of the Indenture or this Agreement, as applicable, and the Agent
shall have received, dated such day, a certificate of an Authorized Company
Representative (as defined in the Loan Agreement) to such effect, having
attached thereto, copies of all Bond Documents and Loan Documents as executed
by the parties thereto, together with copies of all certificates, legal
opinions, resolutions, financing statements and other documents delivered in
connection therewith, certified by the Company as true and complete copies
thereof, together with reliance letters as to such certificates or opinions,
not otherwise addressed to the Agent and the Purchasers, as any of them may
reasonably request.
(3) The Agent (as defined in the Loan Agreement)
shall have received, in form and substance satisfactory to it, signed copies of
proper financing statements, in appropriate form to be filed on or promptly
after the Initial Closing Date under the Uniform commercial Code of all
jurisdictions that the Agent may deem necessary or desirable in order to
continue and protect the perfection of the Security Agreement.
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(4) The Agent shall have received in form and
substance satisfactory to it, evidence of the insurance required by the terms
of the Security Agreement.
(5) The Agent shall have received, in form and
substance satisfactory to it, a Mortgage (as defined in the Loan Agreement)
modification with respect to each Mortgage, effective to include as
indebtedness secured by such Mortgage, the obligations of the Company or
Related Entity, as applicable, to the Purchasers in connection with the Bonds,
duly executed by the Company or Related Entity, as applicable, together with
(i) evidence that each such Mortgage
modification has been duly recorded on or before the
Initial Closing Date (or acknowledgement by the
representative of the title insurance issuer of
receipt of such Mortgage modifications in form for
recording) in all filing or recording offices that
the Agent may deem necessary or desirable in order to
preserve the valid and enforceable first and
subsisting lien on the property described therein in
favor of the Purchasers;
(ii) American Land Title Land Association
Lender's Extended Coverage title insurance policies,
or endorsements thereto or unconditional commitments
for the issuance of the same, in each case in form
and in amounts acceptable to the Agent, issued and
reinsured by title insurers acceptable to the Agent,
insuring the Mortgages (other than the Mortgage by
Potash) as modified by such Mortgage modifications to
be valid and enforceable first liens on the property
described therein, free and clear of all defects
(including, but not limited to, mechanics' and
materialmen's liens) and encumbrances, excepting only
Permitted Encumbrances, and providing for such other
affirmative insurance (including endorsements for
future advances under the Loan Documents (including
Bond purchases) and for mechanics' and materialmen's
liens) and coinsurance and reinsurance with direct
access as the Agent may deem necessary or desirable;
(iii) such consents and agreements of
lessors and other third parties, and such estoppel
letters and other confirmations, as the Agent may
deem necessary or desirable;
(iv) evidence of the insurance required
(including, without limitation, for any business or
property) by the terms of the Mortgages as modified
by such Mortgage modifications; and
(v) evidence that all other action that the
Agent may deem necessary or desirable in order to
preserve valid first and subsisting liens on the
property described in the Mortgages has been taken.
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(6) The Purchasers shall have received an opinion
of counsel to the Company, dated the Initial Closing Date and addressed to the
Purchasers in form and substance acceptable to the Purchasers.
(7) The Agent shall have received the favorable
opinions of counsel to the Purchasers, dated the Initial Closing Date and
addressed to the Agent in form and substance acceptable to the Agent.
(8) The Purchasers shall have received, in form
and substance satisfactory to them and to the Agent, reports of independent
reputable appraisers of the "in use" or "going concern" and liquidation values
of the fixed assets of the Company and each Related Entity;
(9) The Company or another Related Entity shall
have paid to the Agent for the ratable account of the Purchasers a facility fee
in the amount of $112,500, which fee shall be fully earned when due and payable
and not subject to refund or rebate.
(10) Such other certificates, instruments,
agreements and documents relating to the transactions contemplated to occur in
connection with the issuance of the Bonds as the Agent or any Purchaser may
reasonably request.
b. Conditions to Subsequent Advances
The obligation of each Purchaser to make a principal advance on the
occasion of each principal advance (including the initial advance on the
Initial Closing Date) shall be subject to the conditions precedent that on the
date of such principal advance:
(1) the following statements shall be true (and
each of the giving of the applicable notice of advance and the acceptance by
the Company of the proceeds of such advance shall constitute a representation
and warranty by the Company that on the date of such advance such statements
are true):
(a) The representations and warranties
contained in each Loan Document and the Credit Agreement are correct
on and as of the date of such advance, before and after giving effect
to such advance and to the application of the proceeds therefrom, as
though made on and as of such date, except for those representations
and warranties made as of a specified date; and
(b) No event has occurred and is
continuing, or would result from such advance or from the application
of the proceeds therefrom, that constitutes a default under the Loan
Documents or the Credit Agreement.
(2) The Agent shall have received such other
approvals, opinions or documents as any Purchaser through the Agent may
reasonably request.
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(3) The Agent shall have received at least three
Business Days prior to the date on which such principal advance is requested to
be made, in sufficient copies for each Purchaser, a certificate of an
Authorized Officer of the Company setting forth (i) the date of the requested
principal advance (which advance date shall be the first Business Day of a
month on or prior to the first Business Day of June 1995), (ii) the amount of
the requested principal advance (which shall be at least $100,000), and (iii)
such Authorized Officer's certification that the amount of the requested
principal advance does not exceed 75% of the Project construction cost incurred
by the Company through the date of such certificate, LESS the aggregate amount
of all principal advances theretofore made, and accompanied by a computation in
reasonable detail supporting such certification and by copies of invoices or
other evidences of payment acceptable to the Agent in its reasonable judgment.
9. OTHER CONDITIONS TO BOND SALE AND PRINCIPAL
ADVANCES
The obligation of the Purchasers to purchase the Bonds and the
obligation of the Issuer to sell the Bonds to the Purchasers are further
subject to the following conditions:
a. The representations and warranties of the
Company herein and the representations and warranties made in each Loan
Document and each of the Bond Documents by the respective parties thereto shall
be true, correct and complete on the date hereof, on the Initial Closing Date
and on the date of each subsequent advance of principal, and each such party to
the Loan Documents and Bond Documents, including the Company, shall deliver a
certificate to such effect on the Initial Closing Date and the Company shall
deliver such a certificate on the date of each principal advance. The Issuer
and the Company shall have performed all of their obligations hereunder and the
statements made on behalf of the Issuer and the Company hereunder shall be true
and correct on the date hereof, on the Initial Closing Date and on the date of
each principal advance, and the Issuer and the Company shall deliver
certificates to such effect on the Initial Closing Date and the Company shall
deliver such a certificate on the date of each principal advance.
b. Except as may have been agreed to by the
Purchasers, as of the Initial Closing Date and the date of each principal
advance, each of the Bond Documents, the Loan Documents, the Resolution and all
other official action of the Issuer relating thereto shall be in full force and
effect and shall not have been amended, modified or supplemented without the
written approval of the Purchasers.
c. The Issuer shall have received the approving
opinion of Bond Counsel in form and substance acceptable to the Purchasers, and
the Purchasers shall have received a letter from Bond Counsel dated the Initial
Closing Date and addressed to the Purchasers, to the effect that the Purchasers
may rely upon such firm's opinion as if it were addressed to the Purchasers.
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d. The Purchasers, the Trustee, the Company and
Bond Counsel shall have received an opinion of Issuer's counsel in form and
substance agreeable to the aforesaid parties.
e. Each of the Bond Documents shall have been
executed and delivered by each of the respective parties thereto, all such
documents shall be in the forms attached to the resolution adopted by the
Issuer on the date hereof with only such changes as the Purchasers may approve,
and each of the Bond Documents shall be in full force and effect.
f. None of the events referred to in Section 10
of this Agreement shall have occurred and be continuing.
g. The Purchasers and Issuer shall have received
a certificate, dated the Initial Closing Date and signed by an authorized
officer of the Trustee, to the effect that (i) he or she is an authorized
officer of the Trustee, (ii) the Indenture has been duly executed and delivered
by the Trustee, (iii) the Trustee has all necessary corporate and trust powers
required to carry out the trust created by the Indenture, (iv) to the best of
his or her knowledge, the acceptance by the Trustee of the duties and
obligations of the Trustee under the Indenture and compliance with the
provisions thereof will not conflict with or constitute a breach of or default
under any law, administrative regulations, consent decree or any agreement or
other instrument to which the Trustee is subject or by which the Trustee is
bound, and (v) the Trustee has duly authenticated the Bonds, and the person
signing the certificate of authentication on each bond has been duly authorized
to do so.
h. Evidence, satisfactory in form and substance
to the Purchasers and Bond Counsel, of a satisfactory and favorable conclusion
to a bond validation proceeding under the laws of the State with respect to the
Bonds shall have been received.
i. Such other certificates, opinions and other
documents as the Purchasers or Bond Counsel may reasonably request to evidence
performance of or compliance with the provisions of this Agreement and the
transactions contemplated hereby and by the issuance and sale of the Bonds, all
such certificates and other documents to be satisfactory in form and substance
to the Purchasers, shall have been received.
If any conditions to the obligations of the Purchasers or the Issuer
contained in this Agreement are not satisfied and the satisfaction of such
conditions shall not be waived by the Purchasers, then, at the option of the
Purchasers (i) the Initial Closing Date shall be postponed for such period as
may be necessary for such conditions to be satisfied or (ii) without limiting
the generality of Section 14 of this Agreement, the obligations of the
Purchasers and the Issuer under this Agreement shall terminate, neither the
Purchasers nor the Issuer shall have any further obligations or liabilities
hereunder, and the Company shall have no further obligations or liabilities
hereunder other than its obligations under Section 5 hereof.
All of the legal opinions, certificates, proceedings, instruments and
other documents mentioned above or elsewhere in this Agreement shall be deemed
to be in compliance with the provisions hereof if, but only if, they are in
form and substance satisfactory to the Purchasers and the Issuer.
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10. TERMINATION
The Purchasers may terminate their obligations hereunder by written
notice to the Issuer if, at any time subsequent to the date hereof and on or
prior to the Initial Closing Date:
(a) There shall have occurred any material change in the
business or affairs of the Issuer or the Company or any material change in the
Project which, in the sole judgment of the Purchasers, materially adversely
affects the financial condition, business, properties or prospects of the
Company.
(b) Any condition to the Purchasers' obligations
hereunder is not satisfied because of any refusal, inability or failure on the
part of the Company or the Issuer to comply with any of the terms or to fulfill
any of the conditions provided for or contemplated by this Agreement, or if for
any reason the Company, the Trustee or the Issuer shall be unable to perform
all of their obligations or satisfy conditions, respectively, provided for or
contemplated in this Agreement.
11. EXPENSES
Except as otherwise provided herein, the Company shall cause to be
paid out of its own funds or the proceeds of the Bonds, the costs of issuing
the Bonds, including, but not limited to, the fees and expenses described in
Section 5 of this Agreement; whether or not the sale of the Bonds by the Issuer
to the Purchasers is consummated.
12. CONDITION OF THE ISSUER'S OBLIGATIONS
The Issuer's obligations hereunder are subject to the Purchasers'
performance of their obligations hereunder.
13. NOTICES
Any notice or other communication to be given to the Issuer under this
Agreement may be given by delivering the same in writing as follows:
If to the Issuer - Mississippi Business Finance
Corporation
1306 Walter Sillers Building
Post Office Box 849
Jackson, Mississippi 39205
Attention: William T. Barry
with a copy to:
Holcomb, Dunbar, Connell, Chaffin & Willard
Suite 900, 120 North Congress (39201)
P. O. Box 2990
Jackson, Mississippi 39207-2990
Attention: W. Larry Harris
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If to the Company - Vicksburg Chemical Company
5100 Poplar, Suite 2414
Memphis, Tennessee 38137
Attention: John C. Bumpers
If to the Trustee - First National Bank of Vicksburg
Post Office Box 39
Vicksburg, Mississippi 39181
Attention: Joe Schmidt
If to the Purchasers - The First National Bank of Boston
Suite 745
400 Perimeter Center Terrace
Atlanta, Georgia 30346
Attention: John K. Hood
and
NationsBank of Georgia, N.A.
600 Peachtree Street
Atlanta, Georgia 30308
Attention: Lynn Webster
14. SUCCESSORS
This Agreement is made solely for the benefit of the Issuer, the
Purchasers and the Company (including their successors or assigns) and no other
person shall acquire or have any right hereunder or by virtue hereof (other
than pursuant to Section 5 hereof).
15. SURVIVAL OF CERTAIN REPRESENTATIONS AND WARRANTIES
All agreements, covenants, representations and warranties and
all other statements of the Issuer and the Company set forth in or made
pursuant to this Agreement shall remain in full force and effect and shall
survive the Initial Closing Date and the delivery of the Bonds, from time to
time.
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16. GOVERNING LAW
This Agreement shall be governed by the laws of the State.
17. MISCELLANEOUS
This Agreement constitutes the only agreement among the parties hereto
relating to the subject matter hereof and it supersedes and cancels any and all
previous contracts, agreements or understandings with respect thereto. This
Agreement may not be amended or modified except in writing executed by all
parties hereto. Capitalized terms not otherwise defined herein shall have the
meaning assigned to them in the Indenture and the Loan Agreement.
18. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Very truly yours,
THE FIRST NATIONAL BANK OF BOSTON
By:
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Title:
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NATIONSBANK OF GEORGIA, N.A.
By:
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Title:
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Accepted on MISSISSIPPI BUSINESS FINANCE
November 10, 1993 CORPORATION
By:
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Executive Director
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Accepted on VICKSBURG CHEMICAL COMPANY
November 10, 1993
By:
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Title:
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