Effective as of October 29, 1996
Contran Corporation
Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxx,
Vice President-Finance
Re: Eighth Amendment to Letter Agreement and Security Agreement
Ladies and Gentlemen:
Reference is made to that certain (a) Letter Agreement dated October 31,
1991, by and among BANQUE PARIBAS HOUSTON AGENCY ("Paribas"), SOCIETE GENERALE,
SOUTHWEST AGENCY ("SG"), BANQUE PARIBAS HOUSTON AGENCY as Agent for Paribas and
SG ("Agent") and CONTRAN CORPORATION ("Borrower") relating to a line of credit
and letter of credit facility extended to Borrower (as amended, the "Letter
Agreement"), (b) Security Agreement dated October 31, 1991, executed by Borrower
to and in favor of Agent, Paribas and SG (as amended, the "Security Agreement"),
(c) First Amendment to Letter Agreement and Security Agreement dated
December 17, 1991, by among Borrower, Paribas, SG and Agent, (d) Second
Amendment to Letter Agreement and Security Agreement dated October 31, 1992, by
and among Borrower, Paribas, SG and Agent, (e) Third Amendment to Letter
Agreement and Security Agreement dated October 31, 1993, by and among Borrower,
Paribas, SG and Agent, (f) Fourth Amendment to Letter Agreement and Security
Agreement dated September 30, 1994, by and among Borrower, Paribas, SG and
Agent, (g) Fifth Amendment to Letter Agreement and Security Agreement dated
October 31, 1994, by and among Borrower, Paribas, SG and Agent, (h) Sixth
Amendment to Letter Agreement and Security Agreement dated October 30, 1995, by
and among Borrower, Paribas, SG and Agent, and (i) Seventh Amendment to Letter
Agreement and Security Agreement dated as of March 27, 1996, by and among
Borrower, Paribas, SG and Agent. Borrower, Paribas, SG and Agent desire to
amend the Letter Agreement and the Security Agreement as hereinafter set forth.
Accordingly, Borrower, Paribas, SG and Agent, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby agree as follows:
1. Definitions. The term "Letter Agreement", as used in this Eighth
Amendment to Letter Agreement and Security Agreement (this "Amendment"), shall
mean the Letter Agreement referred to hereinabove, as amended hereby. The term
"Security Agreement", as used in this Amendment, shall mean the Security
Agreement referred to hereinabove, as amended hereby. Capitalized terms used in
this Amendment, if and to the extent not otherwise defined in this Amendment,
shall have the same meanings in this Amendment as in the Letter Agreement;
provided, however, that capitalized terms used in amended terms and provisions
of the Security Agreement shall have the same meanings as in the Security
Agreement.
2. Amendments to the Letter Agreement.
(a) Facility. The section of the Letter Agreement entitled
"Facility" is hereby amended to read in its entirety as follows:
"$20,000,000 (the 'Committed Amount') aggregate committed
line of credit for loans (the 'Loans') and letters of credit
(the 'Letters of Credit'), subject to the Advance Rate (as
hereinafter defined) and the other terms and conditions of
this Agreement and the other Loan Papers (as hereinafter
defined); provided, however, that the commitment of Paribas
shall be $10,000,000 of the Committed Amount and the
commitment of SG shall be $10,000,000 of the Committed
Amount. The commitments of Banks under this Facility shall
expire on the earlier to occur of the Maturity Date (as
hereinafter defined) or the occurrence of an Event of
Default. Banks shall not be obligated to make any advances
of Loans or issue any Letter of Credit under the Facility on
or after the Maturity Date."
(b) Maturity Date. The section of the Letter Agreement entitled
"Maturity Date" is hereby amended to read in its entirety as follows:
"October 28, 1997 (the "Maturity Date"), subject to
acceleration upon the occurrence of an Event of Default."
(c) Other Terms and Provisions. The first sentence of the section of
the Letter Agreement entitled "Other Terms and Provisions" is hereby
amended to read in its entirety as follows:
"In addition to the terms and provisions specified herein,
the terms and provisions contained in that certain (a)
Security Agreement dated October 31, 1991, executed by
Borrower to and in favor of Agent and Banks, as amended by
that certain (i) First Amendment to Letter Agreement and
Security Agreement dated December 17, 1991, by and among
Borrower, Banks and Agent, (ii) Second Amendment to Letter
Agreement and Security Agreement dated October 31, 1992, by
and among Borrower, Banks and Agent, (iii) Third Amendment
to Letter Agreement and Security Agreement dated October 31,
1993, by and among Borrower, Banks and Agent, (iv) Fourth
Amendment to Letter Agreement and Security Agreement dated
September 30, 1994, by and among Borrower, Banks and Agent,
(v) Fifth Amendment to Letter Agreement and Security
Agreement dated October 31, 1994, by and among Borrower,
Banks and Agent, (vi) Sixth Amendment to Letter Agreement
and Security Agreement dated October 30, 1995, by and among
Borrower, Banks and Agent, (vii) Seventh Amendment to Letter
Agreement and Security Agreement dated March 27, 1996, by
and among Borrower, Banks and Agent, and (viii) Eighth
Amendment to Letter Agreement and Security Agreement dated
October 29, 1996, by and among Borrower, Banks and Agent (as
amended, the "Security Agreement"), (b) Amended and Restated
Promissory Note dated October 29, 1996, in the original
principal amount of $10,000,000 made by Borrower payable to
the order of Paribas (the "Paribas Note"), (c) Amended and
Restated Promissory Note dated October 29, 1996, in the
original principal amount of $10,000,000 made by Borrower
payable to the order of SG (the "SG Note") (the Paribas Note
and the SG Note, together with all renewals, extensions,
amendments and replacements thereof from time to time, are
hereinafter collectively called the "Promissory Notes"), and
(d) all other agreements, documents, instruments and
certificates executed or delivered in connection herewith
(this Agreement, the Security Agreement, the Promissory
Notes and such other agreements, documents, instruments and
certificates, as the same may be amended, renewed, extended,
restated or supplemented from time to time, are hereinafter
collectively called the "Loan Papers"), all of which are
incorporated herein by reference for all purposes, shall
apply and shall govern the relationship among Borrower,
Agent and Banks with respect to the Facility."
3. Amendments to the Security Agreement.
(a) Definition of Loan Papers. The first sentence of Subparagraph
(f) of Paragraph 21 of the Security Agreement is hereby amended to read in
its entirety as follows:
"The term "Loan Papers", as used in this Agreement, shall
mean and refer to (i) the Letter Agreement, (ii) that
certain Amended and Restated Promissory Note dated October
29, 1996, in the original principal amount of $10,000,000
made by the undersigned payable to the order of Banque
Paribas Houston Agency, (iii) that certain Amended and
Restated Promissory Note dated October 29, 1996, in the
original principal amount of $10,000,000 made by the
undersigned payable to the order of Societe Generale,
Southwest Agency, (iv) this Agreement, and (v) the other
"Loan Papers", as such term is defined in the Letter
Agreement, as the same may be amended, renewed, extended,
restated or supplemented from time to time."
4. Ratifications, Representations and Warranties.
(a) Except as expressly amended by this Amendment, the terms and
provisions of the Letter Agreement and the Security Agreement are hereby
ratified and confirmed and shall continue in full force and effect. The
Letter Agreement and the Security Agreement as amended hereby shall con-
tinue to be legal, valid, binding and enforceable in accordance with their
terms.
(b) Borrower hereby represents and warrants to Banks that the
execution, delivery and performance of this Amendment and all other Loan
Papers executed and/or delivered in connection herewith, and the
performance of the transactions contemplated hereby and thereby, have been
duly authorized by all requisite corporate action on the part of Borrower
and will not violate the Certificate of Incorporation or Bylaws of Borrower
or any other material agreement, document, instrument or certificate to
which Borrower, or any of its assets, is a party or is bound or affected.
5. Conditions Precedent. The effectiveness of this Amendment is subject
to the satisfaction of the following conditions precedent:
(a) Agent shall have received the following, each dated (unless
otherwise indicated) the date of this Amendment, in form and substance
satisfactory to Banks:
(i) an Amended and Restated Promissory Note in the original
principal amount of $10,000,000 made by Borrower payable to the order
of Paribas and an Amended and Restated Promissory Note in the original
principal amount of $10,000,000 made by Borrower payable to the order
of SG;
(ii) an Amended and Restated Federal Reserve Form U-1 executed by
Borrower pertaining to this Amendment; and
(iii) a Corporate Certificate executed by Borrower and
certain officers of Borrower evidencing that the transactions
contemplated by this Amendment have been duly authorized by all
requisite corporate action on the part of Borrower.
(b) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all agreements, documents,
instruments and certificates and other legal matters incident thereto shall
be reasonably satisfactory to Agent and its legal counsel, Jenkens &
Xxxxxxxxx, P.C.
6. Miscellaneous.
(a) All representations and warranties contained in this Amendment
shall survive the execution and delivery of this Amendment and the other
Loan Papers, and no investigation by Agent or Banks or any closing shall
affect such representations and warranties or the right of Agent and Banks
to rely thereon.
(b) The Loan Papers are hereby amended so that any reference therein
to the Letter Agreement or the Security Agreement shall mean a reference to
the Letter Agreement or the Security Agreement, respectively, as amended
hereby.
(c) 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.
(d) This Amendment is binding upon and shall inure to the benefit of
Banks, Agent and Borrower and their respective successors and assigns;
provided, however, that Borrower may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of Banks.
(e) This Amendment may be executed in one or more counterparts.
(f) Borrower agrees to pay on demand by Agent the reasonable fees and
out-of-pocket expenses of counsel to Agent and Paribas in connection with
the preparation, negotiation and execution of this Amendment and the other
Loan Papers executed pursuant hereto.
(g) THIS AMENDMENT, TOGETHER WITH THE OTHER LOAN PAPERS AS WRITTEN,
REPRESENT THE FINAL AGREEMENTS BETWEEN AND AMONG THE PARTIES HERETO WITH
RESPECT TO THE FACILITY, THE LOANS AND THE LETTERS OF CREDIT AND MAY NOT BE
CONTRADICTED BY EVIDENCE OR PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
(1) BORROWER AND (2) AGENT OR ANY BANK.
If you are in agreement with all of the terms and conditions stated herein,
please indicate by signing below whereupon this Amendment shall become effective
as of the date first above written.
Sincerely,
BANQUE PARIBAS HOUSTON AGENCY
Individually and as Agent
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
AGREED AND ACCEPTED:
CONTRAN CORPORATION
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President-Finance
