CONTRIBUTION AND ASSUMPTION AGREEMENT (4,423,772 Common Units and 20.00% of Incentive Distribution Rights)
Exhibit 1
CONTRIBUTION AND ASSUMPTION AGREEMENT
(4,423,772 Common Units and 20.00% of Incentive Distribution Rights)
THIS CONTRIBUTION AND ASSUMPTION AGREEMENT, dated as of June 30, 2011, is entered into by and among Terra Nitrogen Corporation, a Delaware corporation (“TNC”),Terra LP Holdings LLC, a Delaware limited liability company (“LP Holdings”) and Terra Capital, Inc. (“Terra Capital”), a Delaware corporation.
RECITALS
WHEREAS, TNC holds (i) 1,707,172 common units (the “TNC Common Unit Interest”), representing limited partner interests in Terra Nitrogen Company, L.P. (“TNC LP”), a Delaware limited partnership, and (ii) by virtue of an assignment from Terra Nitrogen GP Inc., a Delaware corporation (the “GP”), in that certain Conveyance, Assignment and Assumption Agreement, dated as of September 1, 2005, the right to receive the proceeds of any and all distributions to which the GP may receive under the allocation specifically to the “General Partner” in Sections 5.4 (D), (E) or (F) (i.e. 13/99ths of all cash distributed under Section 5.4(D), 23/99ths of all cash distributed under Section 5.4(E) and 48/99ths of all cash distributed under Section 5.4(F), the “Incentive Distribution Rights”) of the First Amended and Restated Agreement of Limited Partnership of TNC LP, dated as of September 1, 2005 (the “Partnership Agreement”); and
WHEREAS, Terra Capital holds 2,716,600 common units (the “Terra Capital Transfer Interest”) representing limited partner interests in TNC LP; and
WHEREAS, TNC previously caused LP Holdings to be formed and transferred 9,465,242 Common Units to LP Holdings; and
WHEREAS, TNC desires to contribute the TNC Common Unit Interests and 20.00% of the Incentive Distribution Rights (the “TNC IDR Interest” and together with the TNC Common Unit Interest, the “TNC Transfer Interest”), to LP Holdings; and
WHEREAS, Terra Capital desires to contribute the Terra Capital Transfer Interests to LP Holdings, as a capital contribution on behalf of TNC.
NOW, THEREFORE, in consideration of their mutual undertakings and agreements hereunder, the parties to this Agreement undertake and agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. In addition to the capitalized terms defined in the opening paragraph of this Agreement, the following capitalized terms shall have the meanings given below.
“Agreement” means this Contribution and Assumption Agreement.
“Incentive Distribution Rights” has the meaning assigned to such term in the recitals of this Agreement.
“GP” has the meaning assigned to such term in the recitals of this Agreement.
“LP Holdings” has the meaning assigned to such term in the opening paragraph of this Agreement.
“Partnership Agreement” has the meaning assigned to such term in the recitals of this Agreement.
“Terra Capital” has the meaning assigned to such term in the opening paragraph of this Agreement.
“Terra Capital Transfer Interest” has the meaning assigned to such term in the recitals of this Agreement.
“Terra Capital Transfer Interest Liabilities” has the meaning assigned to such term in Section 3.2.
“TNC” has the meaning assigned to such term in the opening paragraph of this Agreement.
“TNC Common Unit Interest” has the meaning assigned to such term in the recitals of this Agreement.
“TNC IDR Interest” has the meaning assigned to such term in the recitals of this Agreement.
“TNC LP” has the meaning assigned to such term in the recitals of this Agreement.
“TNC Transfer Interest” has the meaning assigned to such term in the recitals of this Agreement.
“TNC Transfer Interest Liabilities” has the meaning assigned to such term in Section 3.1.
ARTICLE II
CONTRIBUTION OF SUBJECT INTERESTS
Section 2.1 TNC Contribution. TNC hereby contributes the TNC Transfer Interest to LP Holdings, and its successors and assigns, and LP Holdings hereby accepts such interests, as a contribution to LP Holdings’ capital, at and as of the date hereof.
Section 2.2 Terra Capital Contribution. Terra Capital hereby contributes the Terra Capital Transfer Interest to LP Holdings on behalf of TNC, and its successors and assigns, and LP Holdings hereby accepts such interests, as a contribution to LP Holdings’ capital, at and as of the date hereof.
ARTICLE III
ASSUMPTION OF LIABILITIES
Section 3.1 Assumption of TNC Transfer Interest Liabilities. In connection with the contribution by TNC of the TNC Transfer Interests to LP Holdings, LP Holdings hereby assumes and agrees to duly and timely pay, perform and discharge all liabilities arising out of or related to the ownership of the TNC Transfer Interests (the “TNC Transfer Interest Liabilities”) to the extent arising or accruing on and after the date of transfer thereof to LP Holdings, whether known or unknown, accrued or contingent, and whether or not reflected on the books and records of TNC or its affiliates, to the full extent that TNC has been heretofore or would have been in the future obligated to pay, perform and discharge the TNC Transfer Interest Liabilities were it not for the execution and delivery of this Agreement; provided, however, that said assumption and agreement to duly and timely pay, perform and discharge the TNC Transfer Interest Liabilities shall not (a) increase the obligation of LP Holdings with respect to the TNC Transfer Interest Liabilities beyond that of TNC, (b) waive any valid defense that was available to TNC with respect to the TNC Transfer Interest Liabilities or (c) enlarge any rights or remedies of any third party, if any, under any of the TNC Transfer Interest Liabilities.
Section 3.2 Assumption of Terra Capital Transfer Interest Liabilities. In connection with the contribution by Terra Capital of the Terra Capital Transfer Interests to LP Holdings, LP Holdings hereby assumes and agrees to duly and timely pay, perform and discharge all liabilities arising out of or related to the ownership of the Terra Capital Transfer Interests (the “Terra Capital Transfer Interest Liabilities”) to the extent arising or accruing on and after the date of transfer thereof to LP Holdings, whether known or unknown, accrued or contingent, and whether or not reflected on the books and records of Terra Capital or its affiliates, to the full extent that Terra Capital has been heretofore or would have been in the future obligated to pay, perform and discharge the Terra Capital Transfer Interest Liabilities were it not for the execution and delivery of this Agreement; provided, however, that said assumption and agreement to duly and timely pay, perform and discharge the Terra Capital Transfer Interest Liabilities shall not (a) increase the obligation of LP Holdings with respect to the Terra Capital Transfer Interest Liabilities beyond that of Terra Capital, (b) waive any valid defense that was available to Terra Capital with respect to the Terra Capital Transfer Interest Liabilities or (c) enlarge any rights or remedies of any third party, if any, under any of the Terra Capital Transfer Interest Liabilities.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Further Assurances. From time to time after the date hereof, and without any further consideration, each of the parties to this Agreement shall execute, acknowledge and deliver all such additional instruments, notices and other documents, and will do all such other acts and things, all in accordance with applicable law, as may be necessary or appropriate to more fully and effectively carry out the purposes and intent of this Agreement.
Section 4.2 Headings; References; Interpretation. All Article and Section headings in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or
construction of any of the provisions hereof. The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, including without limitation, all Exhibits attached hereto, and not to any particular provision of this Agreement. All references herein to Articles, Sections, and Exhibits shall, unless the context requires a different construction, be deemed to be references to the Articles, Sections and Exhibits of this Agreement, respectively, and all such Exhibits attached hereto are hereby incorporated herein and made a part hereof for all purposes. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. The use herein of the word “including” following any general statement, term or matter shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation,” “but not limited to,” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter.
Section 4.3 Successors and Assigns. The Agreement shall be binding upon and inure to the benefit of the parties signatory hereto and their respective successors and assigns.
Section 4.4 No Third-Party Rights. The provisions of this Agreement are intended to bind the parties signatory hereto as to each other and are not intended to and do not create rights in any other person or confer upon any other person any benefits, rights or remedies and no person is or is intended to be a third-party beneficiary of any of the provisions of this Agreement.
Section 4.5 Counterparts. This Agreement may be executed in any number of counterparts, all of which together shall constitute one agreement binding on the parties hereto.
Section 4.6 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts made and to be performed wholly within such state without giving effect to conflict of law principles thereof, except to the extent that it is mandatory that the law of some other jurisdiction, wherein the contributed assets are deemed located, shall apply.
Section 4.7 Severability. If any of the provisions of this Agreement are held by any court of competent jurisdiction to contravene, or to be invalid under, the laws of any political body having jurisdiction over the subject matter hereof, such contravention or invalidity shall not invalidate the entire Agreement. Instead, this Agreement shall be construed as if it did not contain the particular provision or provisions held to be invalid, and an equitable adjustment shall be made and necessary provision added so as to give effect to the intention of the parties as expressed in this Agreement at the time of execution of this Agreement.
Section 4.8 Amendment or Modification. This Agreement may be amended or modified from time to time only by the written agreement of all the parties hereto.
Section 4.9 Integration. This Agreement supersedes all previous understandings or agreements between the parties, whether oral or written, with respect to its subject matter. This document is an integrated agreement which contains the entire understanding of the parties. No
understanding, representation, promise or agreement, whether oral or written, is intended to be or shall be included in or form part of this Agreement unless it is contained in a written amendment hereto executed by the parties hereto after the date of this Agreement.
Section 4.10 ▇▇▇▇ of Sale; Assignment. To the extent required and permitted by applicable law, this Agreement shall also constitute a “deed” or “assignment” of the assets and interests referenced herein.
[Remainder of This Page Intentionally Left Blank.]
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date first above written.
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TERRA NITROGEN CORPORATION, | ||
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a Delaware corporation | ||
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By: |
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Name: |
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Title: |
Vice President, General Counsel and |
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Corporate Secretary |
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TERRA LP HOLDINGS LLC, | ||
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a Delaware limited liability company | ||
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By: |
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Title: |
Vice President and Corporate Secretary |
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TERRA CAPITAL, INC., | ||
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a Delaware corporation | ||
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By: |
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Title: |
Vice President and Corporate Secretary |
SIGNATURE PAGE TO
CONTRIBUTION AND ASSUMPTION AGREEMENT
(4,423,772 COMMON UNITS AND 20.00% OF INCENTIVE DISTRIBUTION RIGHTS)