-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OVrVZKTDLQJjdGSrLEAfzwxnGJ3w8qaG2I8ImOs3ILv30ppQKOUVYi5zI/cCgQc1 DL1gF0CdBrn4E6e7UqYI0Q== 0001104659-10-064747.txt : 20101230 0001104659-10-064747.hdr.sgml : 20101230 20101230130008 ACCESSION NUMBER: 0001104659-10-064747 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20101229 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20101230 DATE AS OF CHANGE: 20101230 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TERRA NITROGEN CO L P /DE CENTRAL INDEX KEY: 0000879575 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE CHEMICALS [2870] IRS NUMBER: 731389684 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 033-43007 FILM NUMBER: 101280366 BUSINESS ADDRESS: STREET 1: 4 PARKWAY NORTH, SUITE 400 CITY: DEERFIELD STATE: IL ZIP: 60015 BUSINESS PHONE: (847) 405-2400 MAIL ADDRESS: STREET 1: 4 PARKWAY NORTH, SUITE 400 CITY: DEERFIELD STATE: IL ZIP: 60015 FORMER COMPANY: FORMER CONFORMED NAME: TERRA NITROGEN Co DATE OF NAME CHANGE: 20100721 FORMER COMPANY: FORMER CONFORMED NAME: TERRA NITROGEN CO L P /DE DATE OF NAME CHANGE: 19950324 8-K 1 a10-24378_18k.htm 8-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

 


 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934

 


 

Date of Report (Date of earliest event reported): December 29, 2010

 

TERRA NITROGEN COMPANY, L.P.

(Exact name of Registrant as specified in its charter)

 

Delaware

 

033-43007

 

73-1389684

(State or other jurisdiction
of incorporation)

 

(Commission
File Number)

 

(I.R.S. Employer
Identification No.)

 

4 Parkway North, Suite 400

Deerfield, IL

 

60015

(Address of principal
executive offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code:  (847) 405-2400

 

 

(Former name or former address if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

o            Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o            Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o            Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o            Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Item 1.01               Entry into a Material Definitive Agreement.

 

On December 29, 2010, Terra Nitrogen Company, L.P., a Delaware limited partnership (“TNCLP”), entered into a Lease Agreement (the “Lease”), by and between TNCLP and CF Industries, Inc., a Delaware corporation (“CF Industries”).  CF Industries indirectly owns approximately 75.3% of the outstanding common units of TNCLP, and Terra Nitrogen GP Inc., an indirect wholly-owned subsidiary of CF Industries (“TNGP”), is the sole general partner of TNCLP

 

Under the Lease, CF Industries will lease certain real property, including any improvements located thereon (the “Property”), from TNCLP for a base quarterly rent of $109,000 and an additional rent equal to all costs, expenses, and obligations incurred by CF Industries and related to the use, occupancy and operation of the Property which may arise or become due during the term of the Lease.  The Lease is effective for a one-year term starting on January 1, 2011 and will extend automatically for successive one-year terms unless terminated by any party thereto prior to renewal.

 

Also, on December 29, 2010, TNCLP entered into a Tank Car Lease Agreement (the “Car Lease”) between TNCLP and CF Industries.  Pursuant to the Car Lease, CF Industries will lease from TNCLP certain rail cars for a quarterly rental price of $3,600 per car.  The Car Lease is effective for a one-year term starting on January 1, 2011 and will extend automatically for successive one-year terms unless terminated by any party thereto prior to renewal.

 

The Lease and Car Lease were reviewed and approved by the independent directors comprising the Audit Committee of TNGP.

 

The description of the Lease and Car Lease contained in this Current Report on Form 8-K is qualified in its entirety by reference to the complete text of the Lease and Car Lease, copies of which are filed as Exhibit 10.1 and Exhibit 10.2 to this Current Report on Form 8-K, respectively.

 

Item 9.01               Financial Statements and Exhibits.

 

(d)  Exhibits

 

10.1                           Lease Agreement dated December 29, 2010, by and between Terra Nitrogen Company, L.P., a Delaware limited partnership and CF Industries, Inc., a Delaware corporation.

 

10.2                           Tank Car Lease Agreement dated December 29, 2010, between Terra Nitrogen Company, L.P., a Delaware limited partnership and CF Industries, Inc., a Delaware corporation.

 

2



 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

Date: December 29, 2010

 

TERRA NITROGEN COMPANY, L.P.

 

 

By: Terra Nitrogen GP Inc.

 

 

Its: General Partner

 

 

 

 

 

 

 

 

By:

/s/ Douglas C. Barnard

 

 

Name:

Douglas C. Barnard

 

 

Title:

Vice President, General Counsel, and Corporate Secretary

 

3



 

EXHIBIT INDEX

 

Exhibit
Number

 

Description

 

 

 

10.1

 

Lease Agreement dated December 29, 2010, by and between Terra Nitrogen Company, L.P., a Delaware limited partnership and CF Industries, Inc., a Delaware corporation.

 

 

 

10.2

 

Tank Car Lease Agreement dated December 29, 2010, between Terra Nitrogen Company, L.P., a Delaware limited partnership and CF Industries, Inc., a Delaware corporation.

 

4


EX-10.1 2 a10-24378_1ex10d1.htm EX-10.1

Exhibit 10.1

 

LEASE AGREEMENT

 

This LEASE AGREEMENT (this “Agreement”), is made this 29th day of December, 2010 and effective as of January 1, 2011 (the “Effective Date”), by and between TERRA NITROGEN COMPANY, L.P., a Delaware limited partnership, with an address at CF Industries Holdings, Inc., 4 Parkway North, Suite 400, Deerfield, Illinois 60015 (“Landlord”), and CF INDUSTRIES, INC., a Delaware corporation, with an address 4 Parkway North, Suite 400, Deerfield, Illinois 60015 (“Tenant”).

 

W I T N E S S E T H :

 

WHEREAS, Tenant owns certain real properties more particularly described on Schedule 1 attached hereto (the land and any improvements located thereon, each a “Property” and together the “Properties”);

 

WHEREAS, Landlord has agreed to lease to Tenant, and Tenant has agreed to lease from Landlord, the Properties;

 

THEREFORE, in consideration of the premises and covenants, conditions, and agreement contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Landlord and Tenant, Landlord and Tenant do hereby enter into this Agreement and agree as follows:

 

1.             Lease.  Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Properties pursuant to the terms and conditions hereof.

 

2.             Term.  Subject to the terms hereof, the term of this Agreement shall be from the Effective Date and extending for a period of one (1) year.  Thereafter, the term shall be automatically extended for successive periods of one (1) year each, unless terminated by any party hereto at the end of such one (1) year period upon at least ninety (90) days’ prior written notice to the other.

 

3.             Rent.       Tenant shall pay to Landlord base rent (“Base Rent”) in advance, on a quarterly basis, in an amount equal to $109,000.  In addition, Tenant shall pay as additional rent (“Additional Rent” and together with Base Rent, the “Rent”) all costs, expenses, and obligations of every kind or nature, incurred by Lessee and relating to the use, occupancy and operation of the Properties which may arise or become due during the Term (including, without limitation, real estate taxes and insurance), and shall indemnify and hold harmless the Landlord from and against the same.  Additional Rent shall be paid as the same become due and payable by Tenant directly to the applicable taxi ng authority, service provider, utility provider or otherwise.  Landlord shall invoice Tenant for any amounts that Landlord incurs in connection with its ownership, or Tenant’s use, occupancy and operation, of the Properties and such amounts shall be due and payable within ten (10) business days of receipt of such invoice.

 

4.             Use.  The Properties shall be used by Tenant for any purpose permitted by applicable law and for no other purpose.  Tenant shall comply with and observe all federal, state, county, city, village and other laws, statutes, rules, orders, regulations and ordinances affecting the Properties, including the improvements thereon, or the occupancy, operation or use thereof (whether or not any such laws, statutes, charters, rules, orders, regulations and ordinances which may be hereafter enacted involve a change of

 



 

policy on the part of the governmental body enacting the same), and with all rules, orders and regulations of the fire insurance carriers, bureaus or other similar organization for prevention of fire or correction of hazardous conditions.

 

5.             Condition of Properties.  Tenant shall maintain and keep the Properties in as good order and condition as existed on the Effective Date, ordinary wear and tear, damage by fire or other casualty, and damage caused by the acts of Landlord, its agents, employees, invitees and permittees excepted.  In addition, Tenant shall promptly and, at Tenant’s sole cost and expense, make all repairs to the Properties whenever damage or injury thereto shall occur as a result of the acts of Tenant, its agents, employees, invitees and permittees.

 

7.             Assignment of Agreement.  This Agreement shall not be assigned (by law or otherwise), subleased, encumbered or otherwise transferred by Tenant, nor shall Tenant allow the Properties to be occupied or used by any person or entity other than Tenant, without consent of Landlord.  Any sale, transfer or disposition of any Property by Landlord shall be made subject to the terms of this Agreement.

 

8.             Defaults; Remedies.  Tenant shall be in default under this Agreement if Tenant fails to observe or perform any of the covenants, conditions or provisions of this Agreement to be observed or performed by Tenant, where such failure shall continue for a period of ten (10) days after written notice thereof from Landlord to Tenant; provided, however, that if the nature of Tenant’s default is such that more than ten (10) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commenced such cure within said ten (10) day period and thereafter diligently prosecutes such cure to completion.  In the event of a default by Tenant under this Agreement which remains uncured after the expiration of any applicable cure period, Landlord may, in addition to any and all other remedies available at law and equity, terminate this Agreement by delivering written notice thereof to Tenant whereupon this Agreement shall be deemed null and void upon the fifth (5th) day following Tenant’s receipt of such notice.

 

9.             Tenant Indemnification.  Tenant shall protect, indemnify, save harmless and, at Landlord’s option, defend Landlord from and against all liabilities, obligations, claims, damages, penalties, causes of action, judgments, costs and expenses (including, but not limited to, reasonable attorneys’ fees and expenses) imposed upon or incurred by or asserted against Landlord during the Term by reason of (a) any accident or injury to or death of persons or loss of or damage to property occurring on or about the Properties or any part thereof or (b) any negligence or tortious act on the part of Tenant or any of its agents, contractors, sublessees, Tenants, concessionaires or invitees.

 

10.           Successors and Assigns.  The agreements, terms, covenants and conditions contained in this Agreement to be made or to be performed by the parties hereunder shall be binding on and inure to the benefit of their respective successors and permitted assigns.

 

11.           Severability.  The invalidity of any provision of this Agreement as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.

 

12.           Incorporation of Prior Agreements; Amendments.  This Agreement contains all agreements of the parties with respect to the subject matter of this Agreement.  No prior agreement or understanding pertaining to any such matter shall be effective.  This Agreement may only be modified by a written instrument executed by each of the parties hereto.

 

14.           No Oral Waiver, No Continuing Waiver.  No waiver of any provision or condition of this Agreement by any party shall be valid unless in writing signed by such party.  No delay or omission of either party in exercising any right accruing upon any default of the other party shall impair any such right

 

2



 

or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default.  A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Agreement by the other party shall not be construed to be a waiver of any subsequent breach or default, or of any other term or condition of this Agreement.

 

15.           Choice of Law; Jurisdiction.  This Agreement shall be governed by the laws of the State of Illinois.

 

16.           Relationship of Parties.  This Agreement is not intended to and does not constitute or result in a partnership or joint venture of any kind between Tenant and Landlord.

 

17.           Multiple Counterparts.  This Agreement may be executed in multiple counterparts and by facsimile signature, each of which shall be an original and together shall constitute one and the same document.

 

[Signature Page Follows]

 

3



 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.

 

 

LANDLORD:

 

 

 

TERRA NITROGEN COMPANY, L.P.

 

 

 

By:

TERRA NITROGEN GP INC., its general partner

 

 

 

 

 

 

 

By:

/s/ Douglas C. Barnard

 

 

Name:

Douglas C. Barnard

 

 

Its:

Vice President, General Counsel, and Corporate Secretary

 

 

 

 

 

TENANT:

 

 

 

CF INDUSTRIES, INC.

 

 

 

 

 

By:

/s/ Stephen R. Wilson

 

Name:

Stephen R. Wilson

 

Its:

President and Chief Executive Officer

 



 

SCHEDULE 1

 

DESCRIPTION OF PROPERTIES

 

Blair Terminal

250 Industrial Park Drive

Blair, NE 68008

 

Pekin Terminal

1047 Wesley Road

Creve Coeur, IL 61610

 


 

 

EX-10.2 3 a10-24378_1ex10d2.htm EX-10.2

Exhibit 10.2

 

TANK CAR LEASE AGREEMENT

 

This agreement is made this 29th day of December, 2010 and effective as of January 1, 2011 (the “Effective Date”), between TERRA NITROGEN COMPANY, L.P., a Delaware limited partnership with an address at 4 Parkway North, Suite 400, Deerfield, Illinois 60015 (“Lessor”), and CF INDUSTRIES, INC., a Delaware corporation with an address at CF Industries Holdings, Inc., 4 Parkway North, Suite 400, Deerfield, Illinois 60015 (“Lessee”).

 

1.                                       Lease Agreement.  Subject to the terms hereof, Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the cars shown Schedule A (all such cars, the “cars,” and such schedule together with this agreement, the “Lease”). Schedule A shall set forth a brief description of the car or cars covered thereby, including the number of cars and the AAR or DOT specifications.

 

2.                                       Delivery.  On the Effective Date, Lessor agrees to deliver each car to Lessee, freight charges collect, in the yard of the delivering line at the point specified by the Lessee, and Lessee agrees to accept such delivery.

 

3.                                       Condition of Cars — Acceptance.  All cars delivered under this Lease shall be in satisfactory condition for movement in the normal interchange of rail traffic and shall otherwise comply with the description and specifications in Schedule A.

 

4.                                       Rentals.  During the term of this Lease, Lessee agrees to pay to Lessor for the use of each car quarterly rental of $3,600.

 

5.                                       Mileage Allowance.  Lessee shall be entitled to all mileage allowances earned by the cars while in the service of Lessee as and when received from the railroads according to, and subject to, all rules of the tariffs of the railroads.

 

6.                                       Term.  Subject to the terms hereof, the term of this Lease shall be from the Effective Date and extending for a period of one (1) year.  Thereafter, the term shall be automatically extended for successive periods of one (1) year each, unless terminated by any party hereto at the end of such one (1) year period upon at least ninety (90) days’ prior written notice to the other.

 

7.                                       Use and Possession.  During the term of this Lease, Lessee shall be entitled to possession of each car, and shall use such car only in the manner for which it was designed and intended on its own property or lines in the usual interchange of traffic.  Lessee will preserve the cars in good condition at all times during the term of this lease and will not alter the structure of the cars without Lessor’s prior written approval. Lessee will promptly return the cars to Lessor upon termination of the lease in t he same condition (or better) than when received, ordinary wear and tear accepted.

 

8.                                       Empty Mileage Indemnification.  Lessee agrees that it will use its best efforts to so use the cars that their total mileage under load will equal or exceed their mileage empty on each railroad over which the cars move.

 

9.                                       Additional Charges by Railroads.  Lessee agrees to use the cars, upon each railroad over which cars shall move, in accordance with the then prevailing tariffs to which each railroad shall be a party; and if the operation or movements of any of the cars during the term hereof shall result in any charges being made against Lessor by any such railroad, Lessee shall pay to Lessor the amount of such charges within the period prescribed by and at the rate and under the conditions of the then prevailing tariffs. Lessee ag rees to indemnify Lessor against any such charges, and shall be liable for any

 



 

switching, demurrage, track storage, detention or special handling charges imposed on any car during the term hereof.

 

10.                                 Lessee’s Right to Transfer or Sublease.  Lessee shall not transfer, sublease or assign any car or its interests and obligations pursuant to the Lease without Lessor’s prior written consent.  Notwithstanding the foregoing, Lessee shall have the right to sublease any of the cars for single trips to its customers or suppliers, and to cause each car so subleased to be boarded or placarded with the name of the sublessee in accordance with the provisions of the demurrage tariffs lawfully in effect, where the sole purpose of such subleasing is to obtain an exemption from demurrage for said cars so subleased; provided, however, that notwithstanding any such sublease, Lessee shall continue to remain liable to Lessor for the fulfillment of Lessee’s obligations under this Lease.

 

11.                                 Maintenance Responsibility.  During the term of this Lease, Lessee assumes the entire responsibility for the cars and shall be responsible and liable to the Lessor for any and all damage to or destruction of same, except for damage (i) caused by normal wear and tear, or (ii) while cars are in the possession of any railroad in regular course of transportation, which railroad is subject to Interchange Rules of the Association of American Railroads (“Interchange Rules”).  Lessor agrees to maintain the cars in good c ondition and repair according to the now existing Interchange Rules and to conduct necessary repairs during the term of this lease. Lessee agrees to notify Lessor promptly of car damage, defect, or any condition requiring repair during the term of this agreement and to forward the cars to any shop location as may be directed by the Lessor. Lessee agrees to arrange for cleaning, at Lessee’s expense, of any cars requiring shopping.  For any car or cars placed in a shop for normal wear and tear maintenance and/or repair at the direction of Lessor, Lessee shall be allowed rental abatement commencing on the day of arrival at such shop, and rental will be reinstated on the date such car is ready to forward from the shop to Lessee’s specified point. Lessee shall, at its expense, replace any removable parts if lost or broken with parts of like kind and quality.  Except for instances of negligence by the Lessee and/or parties allowed access to the cars by Lessee, Lessee shall not be responsib le for any lining repair or replacement of the lining of the cars. During the term of this lease, Lessee agrees to assume responsibility for the inspection and maintenance of all valves, gaskets, and fittings on the cars.

 

12.                                 Loss or Destruction.  If any of the cars shall be completely destroyed, or if the physical condition of any car shall become such that the car cannot be operated in railroad service, as determined by the parties, then this Lease shall terminate with respect to such car. Lessee shall notify Lessor of the occurrence of any such event promptly. Lessee agrees that if a car is lost or destroyed or is in such physical condition that it cannot be operated in railroad service by reason of misuse or negligence of Lessee or its consignee, agent or sublessee o r while on a railroad that does not subscribe to the Interchange Rules or while on any private siding or track or any private or industrial railroad, Lessee will pay Lessor, in cash, the settlement value of such car as determined by Rule #107 of the Interchange Rules promptly following a request by Lessor for such payment. Lessor and Lessee shall cooperate with and assist each other in any reasonable manner requested to establish proper claims against parties responsible for the loss, destruction of or damage to, the cars.

 

13.                                 Loss of Commodity.  Lessor shall not be liable for any loss of, or damage to, commodities, or any part thereof, loaded or shipped in the cars however such loss or damage shall be caused or shall result. Lessee agrees to assume responsibility for, to indemnify Lessor against, and to save it harmless from any such loss or damage or claim therefor.

 

14.                                 Damage to Car by Commodity.  Lessee shall be liable for damage to any car covered by this Lease, whether or not due to Lessee’s negligence, if caused by or as a result of the commodity loaded therein. Lessee assumes responsibility for such damage to any car, including without limitation, as applicable, to the tank, fittings or appurtenances thereto, including the interior lining for

 



 

tanks so equipped. Lessee will use said cars for the transportation and handling of commodities which will not injure the cars.

 

15.                                 Lettering.  Lessee shall place no lettering or marking of any kind upon the cars without Lessor’s prior written consent, provided however, that Lessee may cause said cars to be stenciled, boarded, or placarded with letters not to exceed two inches (2”) in height to indicate to whom the cars are leased and with commodity stencils per AAR or DOT specifications.

 

16.                                 Linings and Coatings.  The application, maintenance and removal of interior protective linings and coatings in cars so equipped is to be at the expense of the Lessee. Commodity or mechanical damage to such linings or coatings shall be for the account of the Lessee.

 

17.                                 Return of Cars — Cleaning.  At the expiration of the lease term, Lessee shall, at its expense, return the cars to Lessor at the location and to the agent selected by the Lessor empty, clean and free from residue, and in the same good condition as the cars were in when delivered, except for normal wear and tear. At the expiration, should car cleaning be required, the Lessee shall bear the full cost of cleaning.

 

18.                                 Modifications.  Lessor and Lessee agree that if, at any time after the effective date changes in car design or equipment are required by the AAR, DOT, FRA or any other governmental authority, Lessor may, at its option, perform all modifications so ordered and that the cost of those modifications shall be reflected in an appropriate increase in the quarterly rental rate.

 

19.                                 Use of Cars on Certain Roads Under AAR Circulator OT-5. Lessee is responsible for obtaining all consents or authority to use the cars on any railroad. Upon, the written request of Lessee, Lessor shall use reasonable efforts to obtain from each named railroad consents or authority to place the cars in service under provisions issued by such railroad or the AAR, including, without limitation, the provisions of AAR Circular OT-5 as promulgated by the Association of American Railroads and all supplements thereto and reissues thereof. Lessee shall furnish to Lessor such information as is necessary to apply for and obtain such consents or authority.

 

20.                                 Indemnifications.  Lessee shall protect, indemnify, save harmless and, at Lessor’s option, defend Lessor from and against all liabilities, obligations, claims, damages, penalties, causes of action, judgments, costs and expenses (including, but not limited to, reasonable attorneys’ fees and expenses)in any way arising out of, or resulting from, the condition, storage, use, operation of the cars or other cause by Lessee except to the extent resulting from Lessor’s the willful act or gross negligence or except to the extent a railroad ha s assumed full responsibility and satisfies such responsibility.

 

21.                                 Taxes and Liens.  Lessor shall be liable for and pay all Federal, State or other governmental property taxes assessed or levied against the cars, except that (i) Lessee shall be liable for and pay such taxes when cars bear reporting marks and numbers other than Lessor’s, (ii) Lessee shall be liable at all times for and shall pay or reimburse Lessor for the payment of any sales, use, leasing, operation, excise, gross receipts and other taxes with respect to the cars, together with (but only to the extent caused by Lessee) any penalties , fines or interest thereon and (iii) Lessee shall be liable for all duties, imposts, taxes and similar charges arising out of the use of cars outside the continental United States.

 

22.                                 Defaults; Remedies.  Lessee shall be in default under this Lease if Lessee fails to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessee, where such failure shall continue for a period of ten (10) days after written notice thereof from Lessor to Lessee; provided, however, that if the nature of Lessee’s default is such that more

 



 

than ten (10) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced such cure within said ten (10) day period and thereafter diligently prosecutes such cure to completion.  In the event of a default by Lessee under this Lease which remains uncured after the expiration of any applicable cure period, Lessor may, in addition to any and all other remedies available at law and equity, terminate this Lease by delivering written notice thereof to Lessee whereupon this Lease shall be deemed null and void upon the fifth (5th) day following Lessee’s receipt of such notice.

 

23.                                 Disclaimer of Warranties.  LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE CONDITION, FITNESS FOR PARTICULAR PURPOSE OR ANY OTHER MATTER CONCERNING THE CARS. During the term of this Lease, Lessor hereby assigns to Lessee any factory or dealer warranty, whether express or implied, or other legal right Lessor may have against the manufacturer in connection with defects in the cars covered by this Lease.

 

24.                                 Successors and Assigns.  The agreements, terms, covenants and conditions contained in this Agreement to be made or to be performed by the parties hereunder shall be binding on and inure to the benefit of their respective successors and permitted assigns.

 

25.                                 Severability.  The invalidity of any provision of this Agreement as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.

 

26.                                 Incorporation of Prior Agreements; Amendments.  This Agreement contains all agreements of the parties with respect to the subject matter of this Agreement.  No prior agreement or understanding pertaining to any such matter shall be effective.  This Agreement may only be modified by a written instrument executed by each of the parties hereto.

 

27.                                 Notices.  All notices, claims, demands, and other communications hereunder shall be in writing and shall be delivered to the parties at the addresses set forth above.

 

28.                                 No Oral Waiver, No Continuing Waiver.  No waiver of any provision or condition of this Agreement by any party shall be valid unless in writing signed by such party. No delay or omission of either party in exercising any right accruing upon any default of the other party shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Agreement by the othe r party shall not be construed to be a waiver of any subsequent breach or default, or of any other term or condition of this Agreement.

 

29.                                 Choice of Law; Jurisdiction.  This Agreement shall be governed by the laws of the State of Illinois.

 

30.                                 Relationship of Parties.  This Agreement is not intended to and does not constitute or result in a partnership or joint venture of any kind between Lessor and Lessee.

 

31.                                 Multiple Counterparts.  This Agreement may be executed in multiple counterparts and by facsimile signature, each of which shall be an original and together shall constitute one and the same document.

 



 

IN WITNESS WHEREOF, the parties have executed this Lease as of the date set forth above.

 

 

LESSEE:

 

LESSOR:

 

 

 

CF INDUSTRIES, INC.

 

TERRA NITROGEN COMPANY, L.P.

 

 

By:

TERRA NITROGEN GP INC., its

 

 

 

general partner

 

 

 

 

 

 

By:

/s/ Stephen R. Wilson

 

By:

/s/ Douglas C. Barnard

Name:

Stephen R. Wilson

 

Name:

Douglas C. Barnard

Title:

President and Chief Executive Officer

 

Title:

Vice President, General Counsel, and Corporate Secretary

 



 

SCHEDULE A

 

10 Cars DOT111A100W6 numbered AGMX009401 - 009410

 


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