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EXHIBIT 10.3
EIGHTH AMENDMENT TO AND ASSIGNMENT OF DEED OF TRUST
(WITH SECURITY AGREEMENT AND ASSIGNMENT OF RENTS AND LEASES)
(Disposal Systems, Inc.)
THIS EIGHTH AMENDMENT TO AND ASSIGNMENT OF DEED OF TRUST (WITH SECURITY
AGREEMENT AND ASSIGNMENT OF RENTS AND LEASES) (this "Eighth Amendment") is made
and entered into effective as of the 28th day of July, 1998, by and between
DISPOSAL SYSTEMS, 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), 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 April 28, 1989, to Xxxxx X.
Xxxxxx, Trustee, for the benefit of Assignor, recorded under File Clerk's File
No. M-140261, Film Code No. 000-00-0000, of the Official Public Records of Real
Property of Xxxxxx County, Texas (the "Original 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
Original 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 Original
Deed of Trust, reference to which is herein made for all purposes;
WHEREAS, the Original Deed of Trust was amended pursuant to the First
Amendment to Deed of Trust (with Security Agreement and Assignment of Rents and
Leases) dated March 15, 1990, by and between Grantor and Assignor, recorded
under Clerk's File No. M588378, Film Code No. 000-00-0000, of the Official
Public Records of Xxxxxx County, Texas (the "First Amendment");
WHEREAS, the Original Deed of Trust was further amended pursuant to the
Second Amendment to Deed of Trust (with Security Agreement and Assignment of
Rents and Leases) dated August 15, 1990, by and between Grantor and Assignor,
recorded under Clerk's File No. M787857, Film Code No. 000-00-0000, of the
Official Public Records of Xxxxxx County, Texas (the "Second Amendment");
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WHEREAS, the Original Deed of Trust was further amended pursuant to
that certain Third Amendment to Deed of Trust (with Security Agreement and
Assignment of Rents and Leases) dated October 31, 1991, by and between Grantor
and Assignor, recorded under Clerk's File No. N423330, Film Code No.
###-##-####, of the Official Public Records of Xxxxxx County, Texas (the "Third
Amendment");
WHEREAS, the Original Deed of Trust was further amended pursuant to
that certain Fourth Amendment to Deed of Trust (with Security Agreement and
Assignment of Rents and Leases) dated February 2, 1993, by and between Grantor
and Assignor, recorded under Clerk's File No. P082830, Film Code No.
###-##-####, of the Official Public Records of Xxxxxx County, Texas (the "Fourth
Amendment");
WHEREAS, the Original Deed of Trust was further amended pursuant to the
Fifth Amendment to Deed of Trust (with Security Agreement and Assignment of
Rents and Leases) dated June 30, 1993, by and between Grantor and Assignor,
recorded under Clerk's File No. P311670, Film Code No. 000-00-0000, of the
Official Public Records of Xxxxxx County, Texas (the "Fifth Amendment");
WHEREAS, the Original Deed of Trust was further amended pursuant to the
Sixth Amendment to Deed of Trust (with Security Agreement and Assignment of
Rents and Leases) dated March 30, 1995, by and between Grantor and Assignor,
recorded under Clerk's File No. R306262, Film Code No. 000-00-0000, of the
Official Public Records of Xxxxxx County, Texas (the "Sixth Amendment");
WHEREAS, the Original Deed of Trust was further amended pursuant to the
Seventh Amendment to Deed of Trust (with Security Agreement and Assignment of
Rents and Leases) dated September 23, 1996, by and between Grantor and Assignor,
recorded under Clerk's File No. S13437, Film Code No. 000-00-0000, of the
Official Public Records of Xxxxxx County, Texas (the "Seventh Amendment," and
the Original Deed of Trust, as amended by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Sixth Amendment and the Seventh Amendment, being the "Deed of Trust");
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");
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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;
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
Eighth 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;
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(iii) any UCC-1 Financing Statements filed
in connection therewith, including without
limitation those filed with the Official Public
Records of Real Property, Xxxxxx County, Texas;
and
(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, 1.2 and 1.3 of Article I of the Deed of
Trust are hereby amended and restated to read in their entirety as follows,
respectively:
"1.1 Notes. Payment of the indebtedness evidenced by the
Revolving Credit Notes, as defined in the Loan and Security Agreement."
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"1.2 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."
"1.3 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."
2.5 All references to the Loan Agreement shall be amended to
refer to the Loan and Security Agreement described herein.
2.6 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."
2.7 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 Eighth 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 Eighth Amendment or as waived or consented to by
Beneficiary or otherwise by
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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 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 Eighth 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
Xxxxx X. Xxxxxx 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 Eighth Amendment as
of the date first above written.
GRANTOR:
DISPOSAL SYSTEMS, INC., formerly known as
GNI/Disposal Systems, Inc.
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, 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 )
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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 )
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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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