EXHIBIT 10.1
WAIVER TO THE AMENDED AND
RESTATED CREDIT AGREEMENT
W AIVER (this
“ Waiver ”), dated as of October 26, 2005,
among T ERRA
C APITAL ,
I NC ., a Delaware corporation (“ Terra
Capital ”), T ERRA M ISSISSIPPI H OLDINGS C ORP .
( F / K
/ A M
ISSISSIPPI C HEMICAL C ORPORATION ), a Mississippi corporation (“ TMH
”), and T ERRA
N ITROGEN (U.K.) L IMITED , a
company incorporated in England and Wales (“T
ERRA UK”) (Terra Capital, TMH and Terra UK each
a “ Borrower ” and, collectively, the “
Borrowers ”), T ERRA I NDUSTRIES I NC ., a
Maryland corporation (“ Terra Industries ”),
T ERRA C APITAL H OLDINGS ,
I NC ., a Delaware corporation (“ Terra
Capital Holdings ”), the Lenders party hereto and
C ITICORP USA, I NC ., as
administrative agent and collateral agent for the Lenders and the
Issuers (in such capacities, the “ Administrative
Agent ”), waives the Specified Event of Default (as
defined below) under the A MENDED AND R ESTATED C REDIT A GREEMENT ,
dated as of December 21, 2004 (as amended by Amendment
No. 1 to the Amended and Restated Credit Agreement, dated as
of January 26, 2005, and as further amended by Amendment
No. 2 to the Amended and Restated Credit Agreement, dated as
of July 29, 2005 and as the same may be further amended,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”), among the Borrowers, Terra
Industries, Terra Capital Holdings, 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, the Vice President of Terra
Capital has notified the Administrative Agent, in a letter dated
October 17, 2005, that Terra Industries has entered into
certain hedge agreements in February of 2005 with respect to which
Terra Industries entered into offsetting trades on October 10,
2005 (the “ Specified Hedge Agreements
”);
WHEREAS, the Borrowers have stated,
in the above mentioned letter, that the Specified Hedge Agreements
violate certain terms under Section 7.14 ( Hedging
Contracts ), Section 8.1(g ) ( Indebtedness
), Section 8.3(i) ( Investments ) and
Section 8.17 ( No Speculative Transactions) of
the Credit Agreement and Section 19 (
Representations and Warranties; Covenants ) of the Guaranty;
and
WHEREAS, the Borrowers believe that
the non-compliance with the above mentioned sections of the Credit
Agreement and the Guaranty constitutes an Event of Default under
Section 9.1(e)(i) and a Default under
Section 9.1(e)(ii) of the Credit Agreement
(collectively, the “ Specified Event of Default
”), and hereby request the Requisite Lenders to waive such
Specified Event of Default and the Lenders party hereto are willing
to do so on terms and conditions set forth below.
NOW, THEREFORE, in consideration of
the premises and the mutual covenants and provisions hereinafter
contained, the parties hereto hereby agree as follows:
Section 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.
Section 2. Waiver to the
Credit Agreement
Subject to the conditions precedent
set forth in Section 3 below, the Requisite Lenders hereby
waive the Specified Event of Default that has occurred due to
entering into the Specified Hedge Agreements.
Section 3. Conditions
Precedent
This Waiver shall become effective
as of the date that each of the following conditions precedent
shall have been satisfied or duly waived by the Administrative
Agent (such date, the “ Effective Date
”):
(a) Consent of Requisite
Lenders. The Administrative Agent shall have received executed
copies of this Waiver from Lenders constituting Requisite
Lenders;
(b) Representations and
Warranties. The representations and warranties contained in
Section 4 below shall be true and correct in all material
respects on and as of the Effective Date; and
(c) No Default or Event of
Default . After giving effect to this Waiver, no Default or
Event of Default shall have occurred and be continuing on the
Effective Date.
Section 4.
Representations and Warranties
On and as of the Effective Date,
after giving effect to this Waiver, each of Terra Industries and
the Borrowers hereby represents and war
