$25,000,000 September 3, 1998
NOTE
For value and pursuant to a loan agreement of even date (the "Loan Agreement"),
CONTRAN CORPORATION, a Delaware corporation ("Contran"), promises and agrees to
pay to the order or assigns of the Bank Group, c/o U.S. BANK NATIONAL
ASSOCIATION (the "Agent"), National Corporate Banking, 555 S.W. Oak Street,
Portland, Oregon 97204 (or at such other address as the Bank Group may hereafter
specify in writing from time to time), the principal sum of $25,000,000, or such
lesser amount as Contran actually borrows from the Bank Group under the Loan
Agreement and this Note, plus interest, fees, and costs, as provided for in this
Note. All terms, which are not specifically defined in the Note, will have the
meanings given to them in the Loan Agreement.
1. Use of Proceeds. Contran will use the money borrowed from the Bank Group
under this Note only for the Allowed Uses.
2. Availability. As long as there is no event of Prospective Default and no
uncured Event of Default, Contran will have the right to borrow from the
Bank Group until the Expiry Date up to the amount Available.
Contran will have the right to borrow, repay, and reborrow from time to
time under the Note subject only to Availability and LTV, payment of the
breakage charge in the event of prepayment of a LIBOR Advance, and
Contran's ability under the Loan Agreement to unilaterally make additional
reductions in the aggregate commitment of the Bank Group.
3. Fees. Contran will pay the following fees to the Bank Group:
a) The Commitment Fee quarterly in arrears; and
b) If and when required by the Bank Group, a late payment fee equal to 5%
of the amount of any interest or principal payment or cost
reimbursement not paid within 5 days following the due date.
4. Repayment of Principal. Contran will repay without notice or demand the
entire outstanding principal balance of the Note on the Expiry Date.
5. Prepayment; Breakage Charge. Contran will have the right to prepay
principal at any time but will pay a breakage charge on prepayment of a
LIBOR Advance. The breakage charge will include a processing fee and will
be calculated by the Bank Group to enable it to recover reasonable
redeployment costs and loss of income for the remainder of the Interest
Period. Contran will pay the breakage charge whether the prepayment is
voluntary or is paid after the Agent has accelerated the due date of this
Note.
6. Interest. Before an Event of Default, interest will accrue at either the
Prime Rate or, if properly selected by Contran as provided in the Loan
Agreement, on LIBOR Advances (which must be in the minimum amount of
$1,000,000, and in multiples of $500,000 in excess of the minimum amount)
at the LIBOR for the Interest Period selected by Contran. The LIBOR is
quoted by the Agent as of 8:30 a.m. each Banking Day. Once accepted, the
LIBOR will be applicable for the entire Interest Period.
Contran will pay interest on LIBOR Loans as of the end of each Interest
Period and, if the 6-month Interest Period is selected, as of the end of
the first 90 days in such 6-month Interest Period and will pay interest on
Prime Rate Loans monthly in arrears as of the end of each calendar month.
The interest payment will be due within five days following receipt from
the Agent of the Note holder's billing for such interest.
Interest will accrue at the Default Rate as of the occurrence of any Event
of Default and until such Default is cured or the Note is paid in full and
will be payable at such rate on a weekly basis as of the last Banking Day
of each calendar week.
7. Costs. The prevailing party in the trial or appeal of any civil action or
insolvency (liquidation, reorganization or receivership) claim or
proceeding on any claim (including setoffs, defenses, counterclaims and
third-party claims) whether arising in tort or contract) arising from or
related to this Note or the Bank Group's commitment will be entitled to
reasonable attorney fees in addition to its costs and disbursements.
8. Waivers. Contran waives acceptance, presentment, dishonor, notice of
dishonor, and defenses and claims in recoupment and based on suretyship
(such as extensions, modifications, and impairment of recourse rights)
and/or impairment of Collateral.
9. Default; Remedies. Contran will be in default under this Note if:
a) Contran fails to make any payment of principal when due under this
Note or fails to make any payment of interest, fees or costs within
three Banking Days following the due date under this Note; or
b) Contran is otherwise in default under the Loan Agreement.
Upon the occurrence of an Event of Default and with the consent of the Bank
Group Majority, the Agent will have the right to accelerate the due date of
this Note and/or to exercise all other rights and remedies specified in the
Loan Documents or otherwise available at law.
10. Governing Law. The substantive provisions of Oregon law (that is, without
regard for any choice of law provisions which would make the law of another
jurisdiction applicable) will govern the construction and enforcement of
this Note.
11. Jury Trial Waiver. On advice of counsel and in lieu of an arbitration
clause normally required by the agent, each Contran Company waives trial by
jury in any controversy (claim, offset, defense, counterclaim, or
third-party claim whether asserted in tort or contract) arising out of or
in any way related to construction, performance, and/or enforcement of this
instrument.
12. Successors and Assigns. This Note will bind and inure to the benefit of the
respective successors and assigns of Contran, the Contran Companies, the
Agent, and the Bank Group (including its participants), but Contran will
not have the right by reason of this paragraph to assign its rights or
delegate its Obligations under the Note or the other Loan Documents without
the Bank Group's prior written consent.
13. Guaranty/Security. Payment of this Note and performance of the Obligations
are:
a) Unconditionally guaranteed by the Contran Companies; and
b) Secured by first priority security interests in the Pledged
Securities.
14. Statutory Warning. Under Oregon law, most agreements, promises and
commitments made by a financial institution after October 3, 1989,
concerning loans and other credit extensions which are not for personal,
family or household purposes or secured solely by the borrower's residence
must be in writing, express consideration and be signed by the financial
institution to be enforceable.
CONTRAN CORPORATION
By: /s/ Bobby D. O'Brien
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Bobby D. O'Brien
Vice President
Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
