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EXHIBIT 10.19
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Second Amendment to Loan and Security Agreement (this
"Amendment"), dated as of October 31, 1997, is entered into by and among
NationsBank of Texas, N.A. ("Lender"), Fluid Containment, Inc., Xxxxxx
Containment, Inc., Ershigs, Inc., SEFCO, Inc., Ershigs Biloxi, Inc. (formerly
known as GL&V/XxXxxxxx Construction, Inc.), Denali Incorporated,
Instrumentation Solutions, Inc., Fluid Containment Property, Inc., Containment
Solutions, Inc., and Specialty Solutions, Inc. Fluid Containment, Inc., Xxxxxx
Containment, Inc., Ershigs, Inc., SEFCO, Inc., and Ershigs Biloxi, Inc. are
each a "Borrower" and, collectively, "Borrowers"; Denali Incorporated,
Instrumentation Solutions, Inc., Fluid Containment Property, Inc., Containment
Solutions, Inc., Specialty Solutions, Inc., and Borrowers are each an "Obligor"
and, collectively, "Obligors".
RECITALS
A. Borrowers and Lender are parties to that certain Loan and
Security Agreement, dated as of October 24, 1997 (as amended by that certain
First Amendment to Loan and Security Agreement, dated as of October 31, 1997,
the "Loan Agreement").
B. Lender and Borrowers desire to amend the Loan Agreement as
herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by all parties, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE I
Definitions
Section 1.01. Definitions. Capitalized terms used in this
Amendment, to the extent not otherwise defined herein, shall have the same
definitions assigned to such terms in the Loan Agreement, as amended hereby.
ARTICLE II
Amendment to the Loan Agreement
Section 2.01. Amendment of Section 2B.1. Section 2B.1 of the Loan
Agreement is hereby amended by deleting "$10,000,000" from the introductory
paragraph thereto and substituting "$10,720,000" in lieu thereof.
ARTICLE III
Conditions Precedent
Section 3.01. Conditions Precedent. This Amendment shall be
effective upon execution by all parties hereto.
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT - PAGE 1
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ARTICLE IV
Ratifications, Representations, and Warranties
Section 4.01. Ratifications by Borrowers. The terms and provisions
set forth in this Amendment shall modify and supersede all inconsistent terms
and provisions set forth in the Loan Agreement and, except as expressly
modified and superseded by this Amendment, the terms and provisions of the Loan
Agreement are ratified and confirmed and shall continue in full force and
effect. The Loan Agreement as amended by this Amendment shall continue to be
legal, valid, binding and enforceable in accordance with its terms.
Section 4.02. Renewal and Extension of Security Interests, Pledges,
and Assignments. Each Obligor hereby renews and affirms the liens and security
interests created and granted in the Loan Agreement and all other Loan
Documents. Each Obligor agrees that this Amendment shall in no manner affect
or impair the liens and security interests securing the Secured Obligations and
that such liens and security interests shall not in any manner be waived, the
purposes of this Amendment being to modify the Loan Agreement as herein
provided, and to carry forward all liens and security interests securing same,
which are acknowledged by each Obligor to be valid and subsisting.
Section 4.03. Ratification by Guarantors. Each Obligor executed or
otherwise agreed to be bound by an Unconditional Guaranty, dated as of October
24, 1997 (as amended or otherwise modified, the "Guaranty") for the benefit of
Lender. Each Obligor hereby (i) ratifies and confirms the terms and conditions
of the Guaranty, (ii) agrees that the Guaranty is and shall continue in full
force and effect for the benefit of Lender, and (iii) agrees that neither this
Amendment nor the transactions contemplated hereby shall in any manner affect
or impair the Guaranty.
Section 4.04. Ratification by Subordinated Lenders. Each Borrower
executed or otherwise agreed to be bound by a Subordination Agreement, dated as
of October 24, 1997 (as amended or otherwise modified, the "Subordination
Agreement") for the benefit of Lender. Each Borrower hereby (i) ratifies and
confirms the terms and conditions of the Subordination Agreement, (ii) agrees
that the Subordination Agreement is and shall continue to be in full force and
effect for the benefit of Lender, and (iii) agrees that neither this Amendment
nor the transactions contemplated hereby shall in any manner affect or impair
the Subordination Agreement.
Section 4.05. Representations and Warranties. Each Borrower
represents and warrants to Lender as follows: (i) the execution, delivery and
performance of this Amendment and any and all other Loan Documents executed
and/or delivered in connection herewith have been authorized by all requisite
corporate action on the part of each Borrower and will not violate the articles
of incorporation or bylaws of any Borrower or any agreement to which any
Borrower is a party; (ii) the representations and warranties contained in the
Loan Agreement and any other Loan Document are true and correct on and as of
the date hereof as though made on and as of the date hereof; and (iii) no
Default or Event of Default under the Loan Agreement has occurred and is
continuing.
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ARTICLE V
Miscellaneous
Section 5.01. Survival of Representations and Warranties. All
representations and warranties made in the Loan Agreement or any other Loan
Document, including without limitation, any Loan Document furnished in
connection with this Amendment, shall survive the execution and delivery of
this Amendment and the other Loan Documents, and no investigation by Lender or
any closing shall affect such representations and warranties or the right of
Lender to rely thereon.
Section 5.02. Reference to Loan Agreement. Each of the Loan
Documents, including the Loan Agreement and any and all other agreements,
documents or instruments now or hereafter executed and delivered pursuant to
the terms hereof or pursuant to the terms of the Loan Agreement as amended
hereby, are hereby amended so that any reference in such Loan Documents to the
Loan Agreement shall mean a reference to the Loan Agreement as amended hereby.
Section 5.03. Expenses of Lender. Borrowers agree, jointly and
severally, to pay on demand all costs and expenses incurred by Lender in
connection with the preparation, negotiation and execution of this Amendment
and the other Loan Documents executed pursuant hereto and any and all
amendments, modifications, and supplements thereto, including, without
limitation, the costs and fees of Lender's legal counsel, and all costs and
expenses incurred by Lender in connection with the enforcement or preservation
of any rights under the Loan Agreement, as amended hereby, or any other Loan
Document, including, without limitation, the reasonable costs and fees of
Lender's legal counsel.
Section 5.04. Severability. Any provision of this Amendment held
by a court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the provision so held to be invalid or unenforceable.
SECTION 5.05. APPLICABLE LAW. THIS AMENDMENT SHALL BE DEEMED TO
HAVE BEEN MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO ITS
CONFLICTS OF LAWS PRINCIPLES.
Section 5.06. Successors and Assigns. This Amendment is binding
upon and shall inure to the benefit of the parties hereto and their respective
successors, assigns, heirs, executors, and legal representatives, except that
none of the parties hereto other than Lender may assign or transfer any of its
rights or obligations hereunder without the prior written consent of Lender.
Section 5.07. Counterparts. This Amendment may be executed in one
or more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the
same instrument.
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Section 5.08. Headings. The headings, captions, and arrangements
used in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
SECTION 5.09. ENTIRE AGREEMENT. THE LOAN AGREEMENT AS AMENDED BY
THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED AND DELIVERED IN
CONNECTION WITH AND PURSUANT TO THIS AMENDMENT AND THE LOAN AGREEMENT REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED as of the date first written above.
NationsBank of Texas, N.A.
By: /s/ J. XXXXXXX XXXXXXXX
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Name: J. Xxxxxxx Xxxxxxxx
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Title: Sr. Vice President
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Fluid Containment, Inc.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title: Secretary
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Xxxxxx Containment, Inc.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title: Secretary
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Ershigs, Inc.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title: Secretary
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SEFCO, Inc.
By: /s/ XXXXXXX X. XXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxx, Xx.
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Title: Vice President
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Ershigs Biloxi, Inc.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title: Secretary
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Denali Incorporated
By: /s/ XXXXXXX X. XXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxx, Xx.
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Title: Vice President
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Instrumentation Solutions, Inc.
By: /s/ XXXXXXX X. XXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxx, Xx.
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Title: Vice President
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Fluid Containment Property, Inc.
By: /s/ XXXXXXX X. XXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxx, Xx.
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Title: Vice President
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Containment Solutions, Inc.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title: Secretary
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Specialty Solutions, Inc.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT - PAGE 6
