Exhibit 10.1


 


EXECUTION COPY


 


WAIVER
TO THE CREDIT AGREEMENT


 


WAIVER (this “Waiver”), dated as of April 2, 2010, among TERRA
NITROGEN, LIMITED PARTNERSHIP, a Delaware limited partnership (the “Borrower”), TERRA NITROGEN COMPANY, L.P., a Delaware limited
partnership (“TNCLP”), TERRA NITROGEN GP, INC.,
a Delaware corporation (“TNGP”), the
Lenders party hereto, and CITICORP USA, INC., as administrative agent and
collateral agent for the Lenders and the Issuers (in such capacities, the “Administrative Agent”), amends the CREDIT AGREEMENT, dated
as of December 21, 2004 (as amended, supplemented or otherwise modified
from time to time, including previous amendments hereto, the “Credit Agreement”), among the Borrower, TNCLP, the financial
institutions from time to time party thereto as lenders (the “Lenders”), the financial institutions from time to time
party thereto as issuing banks (the “Issuers”) and
the Administrative Agent.


 


W I T N E S S E T H :


 


WHEREAS, pursuant to the
Credit Agreement, the Lenders have agreed to make Loans to the Borrower and to
issue Letters of Credit for the account of the Borrower;


 


WHEREAS,
pursuant to the terms of a pending exchange offer and the Agreement and Plan of
Merger dated as of March 12, 2010, by and among CF Industries Holdings, Inc.
(“CF”), Composite Merger Corporation (“Mergersub”), a wholly-owned subsidiary of CF, and Terra
Industries, Mergersub intends to acquire at least a majority of the Voting
Stock of Terra Industries (together with any subsequent acquisition of shares
of Terra Industries by Mergersub or its affiliates and any subsequent merger or
other combination among Mergersub and its affiliates and Terra Industries, the “CF Acquisition”);


 


WHEREAS, the CF Acquisition
would result in a Change of Control under the Credit Agreement (the “Specified Default”);


 


WHEREAS, the Borrower, TNCLP
and TNGP have requested, and the Lenders party hereto and the Administrative
Agent have agreed, subject to the limitations and conditions set forth herein,
to waive the Specified Default until July 1, 2010 (the “Waiver Period”);


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants and provisions
hereinafter contained, the parties hereto hereby agree as follows:


 


1.             Defined
Terms.  Capitalized
terms used herein and not defined herein but defined in the Credit Agreement
are used herein as defined in the Credit Agreement.


 


2.             Waiver.  Effective as of the Waiver Effective Date (as
defined below), the Requisite Lenders hereby waive the Specified Default solely
for (and during) the Waiver Period; provided, that
the waiver set forth in this Section 2 shall not excuse or otherwise waive
any failure by any Loan Party to comply with any other terms of any Loan
Document; provided, further,
that immediately following the expiration of the Waiver Period, the Specified
Default shall become an Event of Default.


 


3.             Conditions
Precedent to the Effectiveness of this Waiver.  This Waiver shall become
effective on the date (the “Waiver Effective Date”)
when the following conditions precedent have been satisfied:


 


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(a)           Certain Documents.  The Administrative Agent shall have received
on or before the Waiver Effective Date, all of the following, each of which
shall be in form and substance satisfactory to the Administrative Agent:


 


(i)             this Waiver, executed by the
Borrower, TNCLP, TNGP and the Administrative Agent and the Requisite Lenders;


 


(ii)            a consent to this Waiver in
the form attached hereto as Exhibit A executed by each Unsecured
Guarantor; and


 


(iii)           such additional
documentation as the Administrative Agent or the Lenders may reasonably
require.


 


(b)           Representations and
Warranties.  Each of the
representations and warranties made by the Borrower or the
Guarantors set forth in Section 4 hereof shall be true and correct as of
the Waiver Effective Date.


 


(c)           No Event of Default.  No Default or Event of Default shall have
occurred and be continuing on the Waiver Effective Date.


 


(d)           Fees and Expenses Paid.  The Borrower shall have paid to the
Administrative Agent (i) for the account of each Lender party hereto, the
fee referred to in Section 7 hereof and (ii) in accordance with Section 11.3
of the Credit Agreement, all outstanding costs and expenses of the
Administrative Agent, including the reasonable fees and out-of-pocket expenses
of counsel for the Administrative Agent incurred prior to or otherwise in
connection with this Waiver and any other Loan Document.


 


4.             Representations
and Warranties.  On and as of the date hereof, and as of the
Waiver Effective Date, after giving effect to this Waiver, each of the Borrower
and TNCLP hereby represents and warrants to the Lenders as follows:


 


(a)           Each of the representations
and warranties contained in Article IV of the Credit Agreement, the other Loan
Documents or in any certificate, document or financial or other statement
furnished at any time under or in connection therewith are true and correct in
all material respects on and as of the Waiver Effective Date, except to the
extent that such representations and warranties specifically relate to a
specific date, in which case such representations and warranties shall be true
and correct in all material respects as of such specific date; provided, however, that
references therein to the “Credit Agreement”
shall be deemed to include this Waiver; and


 


(b)           No Default or Event of
Default has occurred and is continuing.


 


5.             Continuing
Effect; No Other Waiver. 
Except as expressly amended hereby, all of the terms and provisions of
the Credit Agreement and the other Loan Documents are and shall remain in full
force and effect.  The waiver contained
herein shall not constitute an amendment or waiver of any provision of the
Credit Agreement or the other Loan Documents or for any other purpose, except
as expressly set forth herein.


 


6.             Loan
Documents.  This Waiver is deemed to be a “Loan Document” for the purposes of the Credit Agreement.


 


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7.             Fees.  As consideration for a Lender consenting to
this Waiver, the Borrower agrees to pay to the Administrative Agent, for the
account of such Lender, a fee equal to 0.30% of the sum of such Lender’s
Revolving Credit Commitment currently in effect provided that the
Administrative Agent shall have received (by facsimile or otherwise) this
Waiver executed from such Lender by 5:00 p.m. (New York time) on April 1,
2010 or such later time as the Borrower and the Administrative Agent may agree.


 


8.             Costs
and Expenses.  The Borrower and TNCLP agree to pay on demand
all reasonable and documented out-of-pocket costs and expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Waiver and other instruments and documents to be delivered pursuant
hereto, including the reasonable and documented fees and out-of-pocket expenses
of counsel for the Administrative Agent with respect thereto.


 


9.             Governing
Law; Counterparts; Miscellaneous.


 


(a)           This Waiver shall be
governed by, and construed and interpreted in accordance with, the law of the
State of New York.


 


(b)           This Waiver may be executed
in any number of counterparts and by the different parties on separate
counterparts, each of which counterparts when executed and delivered shall be
an original, but all of which shall together constitute one and the same
instrument.


 


(c)           Section captions used
in this Waiver are for convenience only and shall not affect the construction
of this Waiver.


 


(d)           From and after the Waiver
Effective Date, all references in the Credit Agreement to the “Agreement” shall
be deemed to be references to such Agreement as modified hereby and this Waiver
and the Credit Agreement shall be read together and construed as a single
instrument.


 


[signature pages follow]


 


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IN WITNESS WHEREOF, the
undersigned parties have executed this Waiver to the Credit Agreement to be
effective for all purposes as of Waiver Effective Date.


 


	
   

  	
  Borrower

  
	
   

  	
   

  
	
   

  	
  TERRA
  NITROGEN, LIMITED PARTNERSHIP

  
	
   

  	
   

  	
  BY:
  TERRA NITROGEN GP, INC.

  
	
   

  	
   

  	
  ITS:
  GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward J. Dillon

  
	
   

  	
   

  	
  Name:
  Edward J. Dillon

  
	
   

  	
   

  	
  Title:
  Vice President and Controller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Secured
  Guarantors

  
	
   

  	
   

  
	
   

  	
  TERRA
  NITROGEN COMPANY, L.P.

  
	
   

  	
   

  	
  BY:
  TERRA NITROGEN GP, INC.

  
	
   

  	
   

  	
  ITS:
  GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward J. Dillon

  
	
   

  	
   

  	
  Name:
  Edward J. Dillon

  
	
   

  	
   

  	
  Title:
  Vice President and Controller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TERRA
  NITROGEN GP, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward J. Dillon

  
	
   

  	
   

  	
  Name:
  Edward J. Dillon

  
	
   

  	
   

  	
  Title: Vice President and
  Controller

  
				



 


[SIGNATURE PAGE TO
WAIVER]


 

















 


	
   

  	
  Administrative
  Agent

  
	
   

  	
   

  
	
   

  	
  CITICORP
  USA, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Miles D. McManus

  
	
   

  	
   

  	
  Name:
  Miles D. McManus

  
	
   

  	
   

  	
  Title: Vice President and
  Director

  



 


[SIGNATURE PAGE TO
WAIVER]


 

















 


	
   

  	
  Lenders

  
	
   

  	
   

  
	
   

  	
  CITIBANK,
  N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Miles D. McManus

  
	
   

  	
   

  	
  Name:
  Miles D. McManus

  
	
   

  	
   

  	
  Title: Vice President and
  Director

  



 


[SIGNATURE PAGE TO
WAIVER]


 

















 


	
   

  	
  WELL
  FARGO CAPITAL FINANCE, LLC, FORMERLY KNOWN AS WELLS FARGO FOOTHILL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eunnie Kim

  
	
   

  	
   

  	
  Name:
  Eunnie Kim

  
	
   

  	
   

  	
  Title: Vice President

  



 


[SIGNATURE PAGE TO
WAIVER]


 

















 


	
   

  	
  BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO
  LASALLE BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Letsch

  
	
   

  	
   

  	
  Name: Michael Letsch

  
	
   

  	
   

  	
  Title: Vice President

  



 


[SIGNATURE PAGE TO
WAIVER]


 

















 


	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Maura Fitzgerald

  
	
   

  	
   

  	
  Name: Maura Fitzgerald

  
	
   

  	
   

  	
  Title: Duly Authorized Signatory

  



 


[SIGNATURE PAGE TO
WAIVER]


 

















 


	
   

  	
  PNC BANK, NA, SUCCESSOR TO NATIONAL CITY BUSINESS
  CREDIT, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roger F. Reeder

  
	
   

  	
   

  	
  Name: Roger F. Reeder

  
	
   

  	
   

  	
  Title: Vice President

  



 


[SIGNATURE PAGE TO
WAIVER]


 

















 


	
   

  	
  STATE OF CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT
  SYSTEM

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  J. Michael Claybar

  
	
   

  	
   

  	
  Name:
  J. Michael Claybar

  
	
   

  	
   

  	
  Title:
  Portfolio Manager

  



 


[SIGNATURE PAGE TO
WAIVER]


 

















 


CONSENT OF GUARANTORS


 


Dated as of April 2, 2010


 


Each
of the undersigned companies, as a Guarantor under the Guaranty dated December 21,
2004 (the “Guaranty”) in favor of the Secured
Parties under the Credit Agreement referred to in the foregoing Waiver, hereby
consents to such Waiver and hereby confirms and agrees that notwithstanding the
effectiveness of such Waiver, the Guaranty is, and shall continue to be, in
full force and effect and is hereby ratified and confirmed in all respects,
except that, on and after the effectiveness of such Waiver, each reference in
the Guaranty to the “Credit Agreement”,
“thereunder”, “thereof”
or words of like import shall mean and be a reference to the Credit Agreement,
as amended by such Waiver.


 


[Signature pages follow]


 

















 


IN
WITNESS WHEREOF, the parties hereto have consented to this Waiver, as of the
date first written above.


 


 


	
   

  	
  TERRA CAPITAL, INC.

  
	
   

  	
  TERRA
  MISSISSIPPI HOLDINGS CORPORATION (F/K/A MISSISSIPPI CHEMICAL CORPORATION)

  
	
   

  	
  TERRA INDUSTRIES INC.

  
	
   

  	
  TERRA CAPITAL HOLDINGS, INC.

  
	
   

  	
  TERRA NITROGEN CORPORATION

  
	
   

  	
  TERRA INTERNATIONAL, INC.

  
	
   

  	
  TERRA INTERNATIONAL (OKLAHOMA) INC.

  
	
   

  	
  PORT NEAL CORPORATION

  
	
   

  	
  TERRA METHANOL CORPORATION

  
	
   

  	
  BMC HOLDINGS INC.

  
	
   

  	
  BEAUMONT HOLDINGS CORPORATION

  
	
   

  	
  TERRA REAL ESTATE CORPORATION

  
	
   

  	
  BEAUMONT AMMONIA INC.

  
	
   

  	
  TERRA
  MISSISSIPPI NITROGEN, INC. (F/K/A MISSISSIPPI NITROGEN, INC.)

  
	
   

  	
  TERRA
  HOUSTON AMMONIA, INC. (F/K/A MISSISSIPPI CHEMICAL MANAGEMENT COMPANY)

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J. Dillon

  
	
   

  	
   

  	
  Name: Edward J. Dillon

  
	
   

  	
   

  	
  Title: Vice President and Controller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TERRA (U.K.) HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J. Dillon

  
	
   

  	
   

  	
  Name: Edward J. Dillon

  
	
   

  	
   

  	
  Title: Vice President and Controller