EXHIBIT 10.4
TENTH AMENDMENT TO AND ASSIGNMENT OF DEED OF TRUST
(WITH SECURITY AGREEMENT AND ASSIGNMENT OF RENTS AND LEASES)
(Disposal Systems, Inc.)
THIS TENTH AMENDMENT TO AND ASSIGNMENT OF DEED OF TRUST (WITH SECURITY AGREEMENT AND ASSIGNMENT OF RENTS AND LEASES) (this "Tenth 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), 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 July 17, 1987, to Mark C. Kirk, Trustee, for the benefit of Assignor, recorded under File Clerk's File No. L264411, Film Code No. 188-30-2517, of the Official Public Records of Real Property of Harris County, Texas and rerecorded under Clerk's File No. L277361, Film Code No. 188-25-1220 of the Official Public Records of Real Property of Harris 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 April 28, 1989, by and between Grantor and Assignor, recorded under Clerk's File No. M11710, Film Code No. 145-78-2246, of the Official Public Records of Harris 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 March 15, 1990, by and between Grantor and Assignor, recorded under Clerk's File No.
1 2
M590662, Film Code No. 173-80-1142, of the Official Public Records of Harris County, Texas (the "Second Amendment");
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 August 15, 1990, by and between Grantor and Assignor, recorded under Clerk's File No. M856643, Film Code No. 190-68-0144, of the Official Public Records of Harris 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 effective October 31, 1990, by and between Grantor and Assignor, recorded under Clerk's File No. M941763, Film Code No. 195-74-2563, of the Official Public Records of Harris County, Texas (the "First Fourth 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 July 25, 1991, by and between Grantor and Assignor, recorded under Clerk's File No. N251955, Film Code No. 042-10-0419, of the Official Public Records of Harris County, Texas (the "Second 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 October 31, 1991, by and between Grantor and Assignor, recorded under Clerk's File No. N423784, Film Code No. 007-58-2450, of the Official Public Records of Harris 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 February 2, 1993, by and between Grantor and Assignor, recorded under Clerk's File No.
2 3
P082831, Film Code No. 119-56-1383, of the Official Public Records of Harris 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 June 30, 1993, by and between Grantor and Assignor, recorded under Clerk's File No. P311671, Film Code No. 163-58-2387, of the Official Public Records of Harris County, Texas (the "Seventh Amendment");
WHEREAS, the Original Deed of Trust was further amended pursuant to the Eighth Amendment to Deed of Trust (with Security Agreement and Assignment of Rents and Leases) dated March 3, 1995, by and between Grantor and Assignor, recorded under Clerk's File No. R306263, Film Code No. 503-09-1452, of the Official Public Records of Harris County, Texas (the "Eighth Amendment");
WHEREAS, the Original Deed of Trust was further amended pursuant to the Ninth 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. S134375, Film Code No. 510-16-1555, of the Official Public Records of Harris County, Texas (the "Ninth Amendment", and the Original Deed of Trust, as amended by the First Amendment, the Second Amendment, the Third Amendment, the First Fourth Amendment, the Second Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth Amendment and the Ninth 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");
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
