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EXHIBIT 10.1
FIRST AMENDMENT TO AND ASSIGNMENT OF DEED OF TRUST
(WITH SECURITY AGREEMENT AND ASSIGNMENT OF RENTS AND LEASES)
(Disposal Systems of Corpus Christi, Inc.)
THIS FIRST AMENDMENT TO AND ASSIGNMENT OF DEED OF TRUST (WITH SECURITY
AGREEMENT AND ASSIGNMENT OF RENTS AND LEASES) (this "First Amendment") is made
and entered into effective as of the 28th day of July, 1998, by and between
DISPOSAL SYSTEMS OF CORPUS CHRISTI, INC., a Delaware corporation, formerly known
as GNI/Disposal Systems, Inc. ("Grantor") and NATIONSBANK, N.A., a national
banking association (successor in interest by merger of NationsBank of Texas,
N.A. (which was formerly known as NCNB Texas National Bank), assignee from
Federal Deposit Insurance Corporation, as receiver of First RepublicBank
Houston, N.A., both in its individual capacity as assignor ("Assignor") and in
its capacity as administrative agent ("Agent") for itself and the other Lenders
(as defined in the Loan and Security Agreement, as defined below), if any, from
time to time party to the Loan and Security Agreement ("Beneficiary").
W I T N E S S E T H:
WHEREAS, Grantor has executed the Deed of Trust (with Security
Agreement and Assignment of Rents and Leases) dated March 3, 1995, to Xxxxxxx
Xxxx, Trustee, for the benefit of Assignor, recorded March 22, 1995 under
Document No. 954775 of the Official Public Records of Real Property of Nueces
County, Texas (the "Deed of Trust"), covering the real property and other
property described therein (except to the extent any of such property has been
released from the lien and security interest of the Deed of Trust by
documentation duly executed and recorded in the appropriate jurisdiction, the
"Property") to secure the payment and performance of certain indebtedness and
obligations as more fully described in the Deed of Trust, reference to which is
herein made for all purposes;
WHEREAS, The GNI Group, Inc. ("GNI"), GNI Chemicals Corporation,
Disposal Systems, Inc., Disposal Systems of Corpus Christi, Inc., Resource
Transportation Services, Inc. and Gulf Nuclear of Louisiana, Inc., collectively
as borrowers, and Beneficiary have entered into that certain Amended and
Restated Loan and Security Agreement dated effective as of July 28, 1998 ("Loan
and Security Agreement");
WHEREAS, the Loan and Security Agreement, among other things, amends,
restates and renews, but does not extinguish, the obligations owing to Assignor
under the certain Credit Agreement dated June 30, 1993 (as amended to date, the
"Existing Credit Agreement") previously executed and entered into among GNI,
certain of its subsidiaries and Assignor;
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WHEREAS, pursuant to the Loan and Security Agreement, Assignor wishes
to assign to Agent, for the benefit of Assignor and the other Lenders, its
interest in the Deed of Trust, together with all documents and instruments
evidencing or securing the obligations provided for in the Existing Credit
Agreement;
WHEREAS, upon such assignment, Grantor and Agent desire to amend the
Deed of Trust so as to amend certain definitions and revise the description of
the obligations and indebtedness secured thereby;
NOW, THEREFORE, in consideration of the foregoing, the benefits to be
derived by Grantor, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms. Words and terms used herein which are defined in the
Deed of Trust are used herein as defined in the Deed of Trust, except as
specifically modified by the terms of this First Amendment.
2. Assignment Provisions.
(a) Each of Assignor, in its individual capacity as lender
under the Existing Credit Agreement, and GNI and each of its
subsidiaries party to the Existing Credit Agreement, acknowledge and
agree that (i) the rights and obligations of such parties to the
Existing Credit Agreement and under or in respect to the "Loan
Documents" referred to therein (and the liens and security interests
securing all such obligations) are assigned and transferred to
Agent, for the benefit of the Lenders under the Loan and Security
Agreement, (ii) the Loan and Security Agreement constitutes a
renewal, extension, modification and restatement in its entirety of
the Existing Credit Agreement (and not a novation thereof) and that
the liens and security interests created thereunder, and under the
Loan Documents referred to therein, secure the Secured Obligations
under the Loan and Security Agreement. Assignor hereby sells,
transfers, sets over and assigns to Agent, for the benefit of the
Lenders under the Loan and Security Agreement, all of Assignor's
right, title and interest in and to the following:
(i) the Existing Credit Agreement;
(ii) the Deed of Trust;
(iii) any UCC-1 Financing Statements filed in
connection therewith, including without limitation those
filed with the Official Public Records of Real Property,
Nueces County, Texas; and
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(iii) all other related documents executed in
connection with the Existing Credit Agreement and the Deed
of Trust.
(b) Agent hereby accepts the assignment specified in section
1.a. above and assumes all obligations and duties of Assignor under
the Deed of Trust and the Existing Credit Agreement as modified and
restated by the Loan and Security Agreement.
(c) Assignor agrees to execute any additional instruments
which are necessary or appropriate to effectuate the assignment and
transfer contemplated hereby.
2. Amendments to Deed of Trust.
2.1 The term "Beneficiary" hereby is amended to read and mean
NATIONSBANK, N.A., as administrative agent for itself and the other Lenders as
defined in the Loan and Security Agreement, if any, from time to time party to
the Loan and Security Agreement.
2.2 The term "Credit Parties" shall have the meaning of the term
"Borrower" as defined by the Loan and Security Agreement.
2.3 The term "Loan Agreement" shall be amended to be "Loan and
Security Agreement" and shall mean that certain Amended and Restated Loan and
Security Agreement dated effective as of July 28, 1998, by and among The GNI
Group, Inc. ("GNI"), GNI Chemicals Corporation, Disposal Systems, Inc., Disposal
Systems of Corpus Christi, Inc., Resource Transportation Services, Inc. and Gulf
Nuclear of Louisiana, Inc., collectively as borrowers, Agent, and NationsBank,
N.A. and the other Lenders (as defined therein), if any, from time to time party
thereto.
2.4 Paragraphs 1.1 of Article I of the Deed of Trust is hereby
amended and restated to read in its entirety as follows:
"1.1 Notes. Payment of the indebtedness evidenced by the Revolving
Credit Notes, as defined in the Loan and Security Agreement."
2.5 The following Paragraphs 1.3 and 1.4 of Article I of the Deed of
Trust are hereby added to read in their entirety as follows, respectively:
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"1.3 Guaranty. Payment and performance of all obligations now owing
or that may hereafter become owing by Grantor under any Guaranty
Agreement in favor of the Beneficiary guaranteeing payment of the
Notes, as may be amended, modified, restated or supplemented from time
to time."
"1.4 Loan and Security Agreement. Performance of all obligations of
Borrower (as such term is defined in the Loan and Security Agreement,
and hereafter used with such meaning) under the terms of the Loan and
Security Agreement, any of the Guaranty Agreements or Security
Documents referred to in the Loan and Security Agreement, and any other
loan agreement, tri-party financing agreement or other agreement
between Grantor and Beneficiary, GNI and any other parties pertaining
to the use of the proceeds of the Notes."
2.6 All references to the Loan Agreement shall be amended to refer
to the Loan and Security Agreement described herein.
2.7 The following sentence is added after the first sentence of
Paragraph 2.9 of the Deed of Trust:
"IT IS EXPRESSLY ACKNOWLEDGED AND AGREED BY GRANTOR THAT THE
INDEMNIFICATION AGREEMENT CONTAINED IN THIS PARAGRAPH PROTECTS
BENEFICIARY FROM THE CONSEQUENCES OF BENEFICIARY'S ACTS OR OMISSIONS,
INCLUDING, WITHOUT LIMITATION, THE NEGLIGENT ACTS OR OMISSIONS OF
BENEFICIARY."
2.8 The following sentence is added to the end of Paragraph 8.4 of
the Deed of Trust:
"IT IS EXPRESSLY ACKNOWLEDGED AND AGREED BY GRANTOR THAT THE
INDEMNIFICATION AGREEMENT CONTAINED IN THIS PARAGRAPH PROTECTS TRUSTEE
FROM THE CONSEQUENCES OF TRUSTEE'S ACTS OR OMISSIONS, INCLUDING,
WITHOUT LIMITATION, THE NEGLIGENT ACTS OR OMISSIONS OF TRUSTEE OR
BENEFICIARY."
3. Miscellaneous.
3.1 Counterparts. This First Amendment may be executed in any number
of counterparts and by different parties on separate counterparts.
3.2 Preservation of Deed of Trust. Except as specifically modified
by the terms of this First Amendment or as waived or consented to by Beneficiary
or otherwise by the transactions which are the subject of the Loan and Security
Agreement, all of the terms, provisions, covenants, warranties, and agreements
contained, and all liens and security interests granted, in the Deed of Trust
remain in full force and effect, and the liens and security
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interests granted therein are acknowledged to be valid and subsisting liens and
security interests against the Mortgaged Property. Except as otherwise expressly
provided herein, by execution of this First Amendment, Grantor and Beneficiary
do not intend to in any manner impair the indebtedness described in and secured
by the Deed of Trust, or to in any way impair, waive or release the liens and
security interests granted in the Deed of Trust, the purpose of this instrument
being simply (a) to amend the Deed of Trust to the extent herein expressly
provided, and (b) to carry forward all liens and security interests granted in
the Deed of Trust.
3.3 Reaffirmation of Deed of Trust. To secure the Indebtedness (as
defined in the Deed of Trust, as amended hereby) Grantor has granted, bargained,
sold, mortgaged, assigned, transferred, and conveyed and by these presents does
grant, bargain, sell, mortgage, assign, transfer, and convey unto Xxxxxxx Xxxx
of Houston, Xxxxxx County, Texas, as trustee, for the benefit of the Beneficiary
(in such capacity, together with all successors and assigns, "Trustee") and in
accordance with the Deed of Trust, all of the Grantor's right, title and
interest, whether now owned or hereafter acquired, in and to the Mortgaged
Property.
TO HAVE AND TO HOLD the Mortgaged Property, together with the rights,
privileges and appurtenances now or hereafter at any time in anywise belonging
or appertaining thereto, unto Trustee, forever to secure the payment of the
Indebtedness and the performance of the agreements and covenants of Grantor
herein and in the Deed of Trust, IN TRUST, NEVERTHELESS, for the benefit of
Beneficiary.
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date first above written.
GRANTOR:
DISPOSAL SYSTEMS OF CORPUS CHRISTI,
INC., a Delaware corporation
By:
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Name:
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Title:
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ASSIGNOR:
NATIONSBANK, N.A., successor by merger to
NationsBank of Texas, N.A., in its individual
capacity as Assignor
By:
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Name:
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Title:
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BENEFICIARY AND AGENT:
NATIONSBANK, N.A., successor by merger to
NationsBank of Texas, N.A., in its capacity
as administrative agent for itself and the
other Lenders, if any, party to the Loan and
Security Agreement
By:
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Name:
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Title:
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THE STATE OF TEXAS )
)
COUNTY OF XXXXXX )
Before me, an authorized authority, on this day personally appeared
_________________, _______________ of DISPOSAL SYSTEMS OF CORPUS CHRISTI, INC.,
a Delaware corporation, known to me to be the person whose name is subscribed to
the foregoing instrument and acknowledged to me that he executed the same on
behalf of such corporation for the purposes and consideration therein expressed.
(Seal) Given under my hand and seal of office this _____ day of
____________, 1999.
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Notary Public in and for The State of Texas
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Notary's Printed/Typed Name
My Commission Expires:
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THE STATE OF TEXAS )
)
COUNTY OF __________ )
Before me, an authorized authority, on this day personally appeared
______________, ______________ of NATIONSBANK, N.A., a national banking
association, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same on behalf
of such national banking association for the purposes and consideration therein
expressed.
(Seal) Given under my hand and seal of office this _____ day of
____________, 1999.
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Notary Public in and for The State of Texas
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Notary's Printed/Typed Name
My Commission Expires:
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THE STATE OF TEXAS )
)
COUNTY OF __________ )
Before me, an authorized authority, on this day personally appeared
______________, ______________ of NATIONSBANK, N.A., a national banking
association, in its capacity as administrative agent for itself and the other
Lenders, if any, from time to time party to the Loan and Security Agreement,
known to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that he executed the same on behalf of such
national banking association for the purposes and consideration therein
expressed.
(Seal) Given under my hand and seal of office this _____ day of
____________, 1999.
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Notary Public in and for The State of Texas
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Notary's Printed/Typed Name
My Commission Expires:
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