EXTENSION AGREEMENT
THIS EXTENSION AGREEMENT (this "Agreement") is made and
entered into as of the 2nd day of February, 1999, by and between HYDROCHEM
INDUSTRIAL SERVICES, INC., a Delaware corporation ("Borrower"), and BANK ONE,
TEXAS, National Association, a national banking association ("Lender").
W I T N E S S E T H:
WHEREAS, in accordance with the terms and provisions of a Loan
Agreement dated as of July 17, 1998 (as amended from time to time, the "Loan
Agreement"), Borrower has executed and delivered to Lender a Promissory Note
(the "Note") dated of even date therewith, in original principal amount of
$7,500,000.00; and
WHEREAS, the payment of the Note is secured by, among other
things, the Deed of Trust (with Security Amendment and Assignment of Rents and
Leases) (the "Deed of Trust") dated July 17, 1998, from Borrower to Xxxxxxxxxxx
X. Xxxxxx, Trustee, filed for record under Clerk's File No. T168142, Film Code
No. ###-##-#### of the Official Public Records of Real Property of Xxxxxx
County, Texas, and covering, among other things, the real property (the
"Property") described therein; and
WHEREAS, Borrower and Lender have agreed to renew and extend
the time and manner of payment of the Note and to carry forward the liens
granted in the Deed of Trust, as hereinafter provided.
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lender and Borrower agree as follows:
1. Renewal. Borrower and Lender hereby renew and extend the principal
balance of the Note, and Borrower promises to pay to the order of Lender
$7,500,000.00, or so much thereof as may be advanced and outstanding under the
terms of the Loan Agreement, together with interest accruing thereon as herein
provided.
2. Interest. Interest shall continue to accrue on the Note, as hereby
renewed and extended, in the manner provided for in the Note and the Loan
Agreement.
3. Note Payment. The Note, as hereby renewed and extended, shall be due
and payable as follows:
(i) Commencing on the last Business Day of April,
1999, and continuing regularly and quarterly thereafter on the
last Business Day of
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each fiscal quarter until the earlier of July 16, 1999 (the
"Construction Loan Maturity Date") or the Conversion Date,
interest only at the Construction Loan Rate on the outstanding
principal, shall be due and payable; and
(ii) A final installment in the amount of all
outstanding principal, plus accrued and unpaid interest, shall
be due and payable on the Construction Loan Maturity Date,
unless the Borrower satisfies the conditions of converting the
Construction Loan to the Term Loan described in Section 2.5 of
the Loan Agreement and elects to convert the Construction Loan
to the Term Loan in the manner therein described, in which
case the Borrower shall pay interest only at the Construction
Loan Rate on the outstanding principal on the Conversion Date.
If the undersigned satisfies the conditions of converting the Construction Loan
to the Term Loan described in Section 2.5 of the Loan Agreement, and elects to
convert the Construction Loan to the Term Loan in the manner therein described,
the Borrower shall repay the unpaid principal amount of the Loan, plus interest
thereon, as follows:
(i) On the last Business Day of the first full three
(3) month period after the Conversion Date, and continuing
regularly and quarterly thereafter on the last Business Day of
each and every three (3) month period until September 30, 2006
(the "Term Loan Maturity Date"), quarterly payments of
principal shall be made as set forth in Exhibit A, together
with all accrued and unpaid interest on the Term Loan at the
Term Loan Rate; and
(ii) A final installment in the amount of all
outstanding principal, plus all accrued and unpaid interest
thereon at the Term Loan Rate and any other unpaid amounts due
and payable to the Lender, shall be due and payable on the
Term Loan Maturity Date.
4. Prepayment. Borrower shall have the right at any time or from time
to time to prepay the outstanding principal balance of the Note existing at such
time, or any portion thereof, subject to and in accordance with the terms and
provisions of the Note and the Loan Agreement.
5. Lien Continuation. The liens granted in the Deed of Trust are hereby
ratified and confirmed as continuing to secure the payment of the Note and the
other indebtedness (as such term is defined in the Deed of Trust). Nothing
herein shall in any manner diminish, impair, or extinguish the indebtedness
evidenced by the Note or the liens securing the indebtedness evidenced by the
Note. The liens granted in the Deed of Trust are not waived. Borrower ratifies
and acknowledges the indebtedness evidenced by the Note is just, due, owing, and
unpaid, as stated herein, and is subject
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to no offsets, deductions, credits, charges, or claims of whatsoever kind or
character, and further agrees that all offsets, credits, charges, and claims of
whatsoever kind or character are fully settled and satisfied.
6. Title Insurance. At the time of the execution of this Agreement,
Borrower shall: (a) cause Lawyers Title Insurance Company ("Title Insurer"), to
issue and deliver to Lender an endorsement to the Mortgagee Policy of Title
Insurance (the "Policy") previously issued to Lender by the Title Insurer and
now insuring the lien of the Deed of Trust, in form and substance acceptable to
Lender, agreeing that the Policy remains in effect and is not impaired or
limited by this Agreement, extending the Title Insurer's liability by reference
to the extended maturity date of the Note (if the maturity date of the Note is
extended by this Agreement), and confirming and stating that indefeasible fee
simple title to the Property remains solely as provided in the Policy; and (b)
pay the costs of the endorsement to the Policy and the filing and recording of
this Agreement and all other out-of-pocket costs and expenses incurred by Lender
in connection with the preparation, negotiation, and delivery of this Agreement
(including attorneys' fees).
7. Limitations on Interest. (a) It is the intention of Lender and
Borrower to confirm strictly to any applicable usury laws. Accordingly, if the
transactions contemplated hereby would be usurious under any applicable, then,
in that event, notwithstanding anything to the contrary in the Note, the Deed of
Trust, the Loan Agreement, or any other agreement entered into in connection
with or as security for or guaranteeing the Deed of Trust, or the Note, it is
agreed as follows: (i) the aggregate of all consideration which constitutes
interest under applicable law that is contracted for, taken, reserved, charged
or received by Lender under the Note, the Deed of Trust, the Loan Agreement, or
under any other agreement entered into in connection with or as security for or
guaranteeing Deed of Trust or the Note shall under no circumstances exceed the
Maximum Rate (as defined in the Note and hereafter used), and any excess shall
be cancelled automatically and, if theretofore paid, shall, at the option of
Lender, be credited by Lender on the principal amount of any indebtedness owed
to Lender by Borrower or refunded by Lender to Borrower, and (ii) in the event
that the maturity of the Note is accelerated or in the event of any required or
permitted prepayment, then such consideration that constitutes interest under
law applicable to Lender may never include more than the Maximum Rate and excess
interest, if any, provided for in the Note, the Deed of Trust, the Loan
Agreement, or otherwise shall be cancelled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall, at the option of
Lender, be credited by Lender on the principal amount of any indebtedness owed
to Lender by Borrower or refunded by Lender to Borrower.
(b) Notwithstanding anything herein the contrary, in no event
will interest payable to Lender exceed the maximum amount permitted by the law
applicable to Lender (after taking into account all charges payable to Lender
which constitute interest under such applicable law), but if any amount referred
to in the
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Note which would be payable to Lender but for the applicability of usury or
other laws limiting the consideration payable to Lender is not paid to Lender as
a result of the applicability of such laws, then interest on the outstanding
principal balance of the Note payable to Lender shall, to the extent permitted
by the law, accrue at the maximum rate of interest permitted by applicable law
(after taking into account all charges payable to Lender which constitute
interest under applicable laws) until the total amount received by Lender equals
the amount it would have received had no such laws been applicable.
8. Preservation. Except as specifically amended and modified by the
terms of this Agreement, all of the terms, provisions, covenants, warranties,
and agreements contained in the Note, the Deed of Trust, and the Loan Agreement
shall remain in full force and effect. Capitalized terms not defined herein
shall have the meanings assigned to them in the Loan Agreement.
9. Counterparts. This Agreement may be executed in two or more
counterparts, and it shall not be necessary that any one of the counterparts be
executed by all of the parties hereto. Each fully or partially executed
counterpart shall be deemed an original, but all such counterparts taken
together shall constitute but one and the same instrument.
10. Joinder by Guarantor. HydroChem International, Inc. joins in the
execution and delivery of this Agreement to evidence his agreement to the terms
and provisions hereof and that its Guaranty dated July 17, 1998, remains in full
force and effect and is not in any way limited, impaired, or discounted as a
result of the delivery of this Agreement by Borrower.
11. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER WRITTEN
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CON TEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
EXECUTED as of the date first above written.
LENDER:
BANK ONE TEXAS,
NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxx, Jr.
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Xxxx X. Xxxx, Xx.
Vice President
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BORROWER:
HYDROCHEM INDUSTRIAL SERVICES, INC.,
a Delaware corporation
By: /s/ Selby F. Litttle, III
-----------------------------
Selby F. Little, III,
Executive Vice President and
Chief Financial Officer
JOINED IN FOR THE PURPOSES DESCRIBED
ABOVE AND FOR PURPOSES OF SECTION
26.02 OF THE TEXAS BUSINESS AND
COMMERCE CODE:
HYDROCHEM INTERNATIONAL, INC.
By: /s/ Selby F. Little, III
----------------------------
Selby F. Little, III,
Executive Vice President and
Chief Financial Officer
THE STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me, on February 24, 1999, by Xxxx
X. Xxxx, Xx., Vice President of Bank One, Texas, a national banking association,
on behalf of said institution.
/s/ Xxxx Xxxx
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Notary Public Signature
My Commission Expires: Xxxx Xxxx
10/6/2002 --------------
Printed Name of Notary Public
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THE STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me, on February 23, 1999, by
Selby F. Little, III, in his capacity as Executive Vice President and Chief
Financial Officer of HYDROCHEM INDUSTRIAL SERVICES, INC., a Delaware
corporation, on behalf of said corporation.
/s/ Xxxxx Xxxxxxxxxx
--------------------
Notary Public Signature
My Commission Expires: Xxxxx Xxxxxxxxxx
--------------------
1/27/2002 Printed Name of Notary Public
THE STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me, on February 23, 1999, by
Selby F. Little, III, in his capacity as Executive Vice President and Chief
Financial Officer of HYDROCHEM INTERNATIONAL, INC., a Delaware corporation, on
behalf of said corporation.
/s/ Xxxxx Xxxxxxxxxx
--------------------
Notary Public Signature
My Commission Expires: Xxxxx Xxxxxxxxxx
--------------------
1/27/2002 Printed Name of Notary Public
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