exhibit_10-1.htm


    Exhibit 10.1

     

     

    
      	 



              $90,000,000.00

            	 SECOND
      AMENDED AND RESTATED 

              UNSECURED
      REVOLVING

              DEMAND
      PROMISSORY NOTE

            	
              
 

              April 15, 2010 

            


    



    Section 1.  Promise to
Pay.  For and in
consideration of value received, the undersigned, Contran Corporation, a
corporation duly organized under the laws of the state of Delaware (“Borrower”), promises to pay
to the order of TIMET
Finance Management Company, a corporation duly organized under the laws
of the state of Delaware (“TFMC”), or the holder hereof
(as applicable, TFMC or such holder shall be referred to as the “Noteholder”), the principal
sum of NINETY MILLION and NO/100ths United States Dollars ($90,000,000.00) or
such lesser amount as shall equal the unpaid principal amount of the loan made
by the Noteholder to Borrower together with interest on the unpaid principal
balance from time to time pursuant to the terms of this Second Amended and
Restated Unsecured Revolving Demand Promissory Note, as it may be amended from
time to time (this “Note”).  This Note
shall be unsecured and will bear interest on the terms set forth in Section 7 below.
Capitalized terms not otherwise defined shall have the meanings given to such
terms in Section 18
of this Note.

    


    Section 2.  Amendment and
Restatement  This Note renews and replaces, amends and restates
in its entirety the First Amended and Restated Unsecured Revolving Demand
Promissory Note dated December 11, 2009 in the original principal amount of
$60,000,000.00 payable to the order of the Noteholder and executed by the
Borrower (the “First Amended
Note”).  The First Amended Note replaced, amended and restated
in its entirety the Unsecured Revolving Demand Promissory Note dated November 4,
2009 in the original principal amount of $30,000,000.00 payable to the order of
the Noteholder and executed by the Borrower (the “Original
Note”).  This Note amends and restates in its entirety the
First Amended Note and the Original Note (collectively, the “Prior Notes”); provided that (a) such
amendment and restatement shall operate to renew, amend and modify the rights
and obligations of the parties under each Prior Note, as provided herein, but
shall not extinguish the obligations under each Prior Note, nor effect a
novation thereof,.  As of the close of business on April 14, 2010, the
unpaid principal balance of the First Amended Note was $40,800,000.00 and the
accrued and unpaid interest thereon was $38,917.84, which principal and accrued
and unpaid interest is the principal and accrued and unpaid interest owed,
respectively, under this Note as of the beginning of business on the date of
this Note.

    


    Section 3.  Place of
Payment.  All payments will be made at Noteholder’s address at
Nemours Building, Suite 1410, 1007 Orange Street, Wilmington,
Delaware  19801, Attention:  President, or such other place
as the Noteholder may from time to time appoint in writing.

    


    Section 4.  Payments.  The
unpaid principal balance of this Note and any unpaid and accrued interest
thereon shall be due and payable on the Final Payment Date.  Prior to
the Final Payment Date, any unpaid and accrued interest on an unpaid principal
balance shall be paid in arrears quarterly on the last day of each March, June,
September and December, commencing June 30, 2010.  All payments on
this Note shall be applied first to accrued and unpaid interest, next to accrued
interest not yet payable and then to principal.  If any payment of
principal or interest on this Note shall become due on a day that is not a
Business Day, such payment shall be made on the next succeeding Business Day and
the payment shall be the amount owed on the original payment date.

    


    Section 5.  Prepayments.  This
Note may be prepaid in part or in full at any time without penalty.

    


    Section 6.  Borrowings.  Prior
to the Final Payment Date, Noteholder expressly authorizes Borrower to borrow,
repay and re-borrow principal under this Note in increments of $100,000 on a
daily basis so long as:

    


    
      	
              ·  

            	
              the
      aggregate outstanding principal balance does not exceed
      $90,000,000.00;

            


    

    
      	
              ·  

            	
              no
      written demand for payment has been made by the Noteholder;
      and

            


    

    
      	
              ·  

            	
              no
      Event of Default has occurred and is
continuing.

            


    

    


    Section 7.  Interest.  The
unpaid principal balance of this Note up to and including $15,000,000.00 shall
bear interest at the rate per annum of the Prime Rate less one and one half
percent (1.50%).  The unpaid principal balance of this Note in excess
of $15,000,000.00 shall bear interest at the rate per annum of the Prime
Rate.  In the event that principal or interest is not paid within five
Business Days after such payment was due or declared due, all past due principal
under this Note will bear interest at the rate per annum of the Prime Rate plus
four percent (4.00%).  Accrued interest on the unpaid principal of
this Note shall be computed on the basis of a 365- or 366-day year for actual
days (including the first, but excluding the last day) elapsed, but in no event
shall such computation result in an amount of accrued interest that would exceed
accrued interest on the unpaid principal balance during the same period at the
Maximum Rate. Notwithstanding anything to the contrary, this Note is expressly
limited so that in no contingency or event whatsoever shall the amount paid or
agreed to be paid to the Noteholder exceed the Maximum Rate.  If, from
any circumstances whatsoever, the Noteholder shall ever receive as interest an
amount that would exceed the Maximum Rate, such amount that would be excessive
interest shall be applied to the reduction of the unpaid principal balance and
not to the payment of interest, and if the principal amount of this Note is paid
in full, any remaining excess shall be paid to Borrower, and in such event, the
Noteholder shall not be subject to any penalties provided by any laws for
contracting for, charging, taking, reserving or receiving interest in excess of
the highest lawful rate permissible under applicable law.  All sums
paid or agreed to be paid to Noteholder for the use, forbearance or detention of
the indebtedness of the Borrower to Noteholder shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full
term of such indebtedness until payment in full of the principal (including the
period of any renewal or extension thereof) so that the interest on account of
such indebtedness shall not exceed the Maximum Rate.  If at any time
the Contract Rate is limited to the Maximum Rate, any subsequent reductions in
the Contract Rate shall not reduce the rate of interest on this Note below the
Maximum Rate until the total amount of interest accrued equals the amount of
interest that would have accrued if the Contract Rate had at all times been in
effect.  In the event that, upon demand or acceleration of this Note
or at final payment of this Note, the total amount of interest paid or accrued
on this Note is less than the amount of interest that would have accrued if the
Contract Rate had at all times been in effect with respect thereto, then at such
time, to the extent permitted by law, in addition to the principal and any other
amounts Borrower owes to the Noteholder, the Borrower shall pay to the
Noteholder an amount equal to the difference between:  (i) the lesser
of the amount of interest that would have accrued if the Contract Rate had at
all times been in effect or the amount of interest that would have accrued if
the Maximum Rate had at all times been in effect; and (ii) the amount of
interest actually paid on this Note.

    


    Section 8.  Remedy.  Upon
the occurrence and during the continuation of an Event of Default, the
Noteholder shall have all of the rights and remedies provided in the applicable
Uniform Commercial Code, this Note or any other agreement among Borrower and in
favor of the Noteholder, as well as those rights and remedies provided by any
other applicable law, rule or regulation.  In conjunction with and in
addition to the foregoing rights and remedies of the Noteholder, the Noteholder
may declare all indebtedness due under this Note, although otherwise unmatured,
to be due and payable immediately without notice or demand
whatsoever.  All rights and remedies of the Noteholder are cumulative
and may be exercised singly or concurrently.  The failure to exercise
any right or remedy will not be a waiver of such right or remedy.

    


    Section 9.  Right of
Offset.  The Noteholder shall have the right of offset against
amounts that may be due by the Noteholder now or in the future to Borrower
against amounts due under this Note.

    


    Section 10.  Record of
Outstanding Indebtedness.  The date and amount of each
repayment of principal outstanding under this Note or interest thereon shall be
recorded by Noteholder in its records.  The principal balance
outstanding and all accrued or accruing interest owed under this Note as
recorded by Noteholder in its records shall be the best evidence of the
principal balance outstanding and all accrued or accruing interest owed under
this Note; provided
that the failure of Noteholder to so record or any error in so recording or
computing any such amount owed shall not limit or otherwise affect the
obligations of the Borrower under this Note to repay the principal balance
outstanding and all accrued or accruing interest.

    


    Section 11.  Waiver.  Borrower
and each surety, endorser, guarantor, and other party now or subsequently liable
for payment of this Note, severally waive demand, presentment for payment,
notice of nonpayment, notice of dishonor, protest, notice of protest, notice of
the intention to accelerate, notice of acceleration, diligence in collecting or
bringing suit against any party liable on this Note, and further agree to any
and all extensions, renewals, modifications, partial payments, substitutions of
evidence of indebtedness, and the taking or release of any collateral with or
without notice before or after demand by the Noteholder for payment under this
Note.

    


    Section 12.  Costs and
Attorneys’ Fees.  In the event the Noteholder incurs costs in
collecting on this Note, this Note is placed in the hands of any attorney for
collection, suit is filed on this Note or if proceedings are had in bankruptcy,
receivership, reorganization, or other legal or judicial proceedings for the
collection of this Note, Borrower and any guarantor jointly and severally agree
to pay on demand to the Noteholder all expenses and costs of collection,
including, but not limited to, reasonable attorneys’ fees incurred in connection
with any such collection, suit, or proceeding, in addition to the principal and
interest then due.

    


    Section 13.  Time of
Essence.  Time is of the essence with respect to all of
Borrower’s obligations and agreements under this Note.

    


    
      
        
        

      

      
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    Section 14.  Jurisdiction and
Venue.  THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE, AND BORROWER CONSENTS TO JURISDICTION IN THE COURTS LOCATED IN THE
STATE OF DELAWARE.

    


    Section 15.  Notice.  Any
notice or demand required by this Note shall be deemed to have been given and
received on the earlier of (i) when the notice or demand
is actually received by the recipient or (ii) 72 hours after the notice
is deposited in the United States mail, certified or registered, with postage
prepaid, and addressed to the recipient.  The address for giving
notice or demand under this Note (i) to the Noteholder shall be
the place of payment specified in Section 3 or such other
place as the Noteholder may specify in writing to the Borrower and (ii) to Borrower shall be the
address below the Borrower’s signature or such other place as the Borrower may
specify in writing to the Noteholder.

    


    Section 16.  Successors and
Assigns.  All of the covenants, obligations, promises and
agreements contained in this Note made by Borrower shall be binding upon its
successors and permitted assigns, as applicable.  Notwithstanding the
foregoing, Borrower shall not assign this Note or its performance under this
Note without the prior written consent of the Noteholder.

    


    Section 17.  Periodic
Reporting.  Borrower agrees to provide to the Noteholder the
following:

    


    (a)           within
sixty (60) days after the end of each of Borrower’s first three fiscal quarters
each year, the consolidated balance sheets of Borrower and its consolidated
subsidiaries as of the end of such quarter, and the related consolidated
statements of income and cash flows for the year-to-date interim period then
ended, prepared in accordance with accounting principles generally accepted in
the United States of America; and

    


    (b)           within
one hundred twenty (120) days following the end of each fiscal year of Borrower,
a copy of the annual audit report for such year for Borrower and its
consolidated subsidiaries, including therein consolidated balance sheets of
Borrower and its consolidated subsidiaries as of the end of such fiscal year and
the related consolidated statements of income and cash flows for the year then
ended, accompanied by a report and opinion of PricewaterhouseCoopers LLP, or
another independent certified public accountant of recognized standing
acceptable to the Noteholder in its reasonable discretion, which report and
opinion shall be prepared in accordance with accounting principles generally
accepted in the United States of America and shall not be subject to any “going
concern” or like qualification or exception, or any exception or qualification
as to scope of audit.

    


    Section 18.  Definitions.  For
purposes of this Note, the following terms shall have the following
meanings:

    


    (a)           “Business
Day” shall mean any day banks are open in the state of
Delaware.

    


    (b)           “Contract
Rate” means the amount of any interest (including fees, charges or
expenses or any other amounts that, under applicable law, are deemed interest)
contracted for, charged or received by or for the account of
Noteholder.

    


    (c)           “Final
Payment
Date” shall mean the earlier of:

    


    
      	
              ·  

            	
              written
      demand by the Noteholder for payment of all or part of the principal and
      interest accrued and unpaid
thereon;

            


    

    
      	
              ·  

            	
              December
      31, 2010; or

            


    

    
      	
              ·  

            	
              acceleration
      as provided herein.

            


    

    


    (d)           “Event of
Default” wherever used herein, means any one of the following
events:

    


    (i)           the
Borrower fails to pay any amount due on this Note and/or any fees or sums due
under or in connection with this Note after any such payment otherwise becomes
due and payable and three Business Days after demand for such
payment;

    


    (ii)           the
Borrower otherwise fails to perform or observe any other provision contained in
this Note and such breach or failure to perform shall continue for a period of
thirty days after notice thereof shall have been given to the Borrower by the
Noteholder;

    


    (iii)           a
case shall be commenced against Borrower, or Borrower shall file a petition
commencing a case, under any provision of the Federal Bankruptcy Code of 1978,
as amended, or shall seek relief under any provision of any other bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in effect, or
shall consent to the filing of any petition against it under such law, or
Borrower shall make an assignment for the benefit of its creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall consent to the appointment of a receiver, trustee or liquidator of
Borrower or all or any part of its property; or

    


    (iv)           an
event occurs that, with notice or lapse of time, or both, would become any of
the foregoing Events of Default.

    


    (e)           “Maximum
Rate” shall mean the highest lawful rate permissible under applicable law
for the use, forbearance or detention of money.

    


    (f)           “Prime
Rate” shall mean the fluctuating interest rate per annum in effect from
time to time equal to the base rate on corporate loans as reported as the Prime
Rate in the Money Rates column of The Wall Street Journal or
other reliable source.

    


    
      	
               
      

            	
              BORROWER:

            


    

    


    
      	
               
      

            	
              Contran
      Corporation

            


    

    


    


    
      	
               
      

            	
              By:

            	/s/ John. A. St.
    Wrba 	 


    

    John
A. St. Wrba, Vice President and

    Treasurer

    


    Address:

    


    5430 LBJ
Freeway, Suite 1700

    Dallas,
Texas   75240-2697

    


    


    As of the
date hereof, TIMET
Finance Management Company, as the Noteholder, hereby agrees that this
Note renews and replaces, amends and restates in its entirety the First Amended
Note and the Original Note (but shall not extinguish the obligations under each
Prior Note, nor effect a novation thereof) and that the unpaid principal and
accrued interest on the First Amended Note as of the close of business on April
14, 2010 is the principal and accrued interest owed under this Note as of the
beginning of business on the date of this Note.

    


    
      	
               
      

            	
              TIMET
      Finance Management Company

            


    

    


    


    
      	
               
      

            	
              By:

            	/s/ Joan L. Yori	 


    

    Joan
L. Yori, President



    
      
        
        

      

      
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