October 31, 1993
Contran Corporation
Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxx, Vice President-Finance
Re: Third Amendment to Letter Agreement and Security Agreement
Ladies and Gentlemen:
Reference is made to (a) that certain Letter Agreement dated October 31,
1991, by and among BANQUE PARIBAS HOUSTON AGENCY ("Paribas"), SOCIETE GENERALE
("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)
that certain Security Agreement dated October 31, 1991, executed by Borrower to
and in favor of Agent, Paribas and SG (as amended, the "Security Agreement"),
(c) that certain First Amendment to Letter Agreement and Security Agreement
dated March 17, 1991, by among Borrower, Paribas, SG and Agent and (d) that
certain Second Amendment to Letter Agreement and Security Agreement dated
October 31, 1992, 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 Third
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) Maturity Date. The section of the Letter Agreement entitled
"Maturity Date" is hereby amended to read in its entirety as follows:
"October 31, 1994 (the 'Maturity Date'), subject to
acceleration upon the occurrence of an Event of Default."
(b) 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 an 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 First Amendment to Letter Agreement and
Security Agreement dated December 17, 1991, by and among
Borrower, Banks and Agent, that certain Second Amendment to
Letter Agreement and Security Agreement dated October 31,
1992, by and among Borrower, Banks and Agent and that
certain Third Amendment to Letter Agreement and Security
Agreement dated October 31, 1993, by and among Borrower,
Banks and Agent (as amended, the "Security Agreement"), (b)
Amended and Restated Promissory Note dated October 31, 1993,
in the original principal amount of $9,000,000 made by
Borrower payable to the order of Paribas (the "Paribas
Note"), (c) Amended and Restated Promissory Note dated
October 31, 1993, in the original principal amount of
$9,000,000 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. Amendment to 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
31, 1993, in the original principal amount of $9,000,000
made by the undersigned payable to the order of Banque
Paribas Houston Agency, (iii) that certain Amended and
Restated Promissory Note dated October 3 1, 1993, in the
original principal amount of $9,000,000 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
continue 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 xxxx 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 $9,000,000 made by Borrower payable to the order
of each of Paribas and 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/ Xxxxxx X. Xxxx
-------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
By: /s/ Pierre-Xxxx xx Xxxxxxxx
-------------------------
Name: Pierre-Xxxx xx Xxxxxxxx
Title: General Manager
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Manager
AGREED AND ACCEPTED:
CONTRAN CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President-Finance
Effective as of September 30, 1994
(except as otherwise provided herein)
Contran Corporation
Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxx, Vice President-Finance
Re: Fourth Amendment to Letter Agreement and Security Agreement
Ladies and Gentlemen:
Reference is made to (a) that certain 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) that certain Security Agreement dated October 31, 1991,
executed by Borrower to and in favor of Agent, Paribas and SG (as amended, the
"Security Agreement"), (c) that certain First Amendment to Letter Agreement and
Security Agreement dated Xxxxx 00, 0000, xx xxxxx Xxxxxxxx, Xxxxxxx, XX and
Agent, (d) that certain Second Amendment to Letter Agreement and Security
Agreement dated October 31, 1992, by and among Borrower, Paribas, SG and Agent
and (e) that certain Third Amendment to Letter Agreement and Security Agreement
dated October 31, 1993, 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 Fourth 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) Letter of Credit Sublimit. The section of the Letter Agreement
entitled "Letter of Credit Sublimit" is hereby amended to read in its
entirety as follows:
"The amount available for drawing under outstanding Letters
of Credit from time to time shall not exceed $10,000,000 in
the aggregate, and the maturity of each Letter of Credit may
not exceed one (1) year from the issuance date and may not
extend beyond the Maturity Date; provided, however, that the
maturity of a Letter of Credit may extend beyond the
Maturity Date with the prior written consent of Banks."
(b) Cash Collateral and Substitution of Collateral. A new section of
the Letter Agreement entitled "Cash Collateral and Substitution of
Collateral" is hereby added to the Letter Agreement immediately following
the section of the Low Agreement entitled "Security", which new section
shall read in its entirety as follows:
"Notwithstanding anything to the contrary contained herein,
in the event that, for whatever reason (a) any Letter of
Credit is outstanding after the Maturity Date, (b) all
Indebtedness (as such term is defined in the Security
Agreement) is irrevocably paid in full (other than the
contingent indebtedness of Borrower to Banks in connection
with outstanding Letters of Credit) and (c) Agent delivers a
written notice to Borrower requesting that cash collateral
be provided to secure the contingent indebtedness of
Borrower to Banks in connection with the outstanding Letters
of Credit, then Borrower shall, on or before sixty (60) days
after the Maturity Date, pledge, assign and grant a security
interest in, to and in favor of Agent on behalf of Banks,
Cash Collateral having an aggregate fair market value equal
to or greater than the aggregate undrawn amount of the
Letters of Credit that are outstanding on the day after the
Maturity Date, which Cash Collateral and pledge, assignment
and security interest thereof or therein shall be in form
and substance reasonably satisfactory to Banks. For
purposes of this Agreement, the term "Cash Collateral" shall
mean (and shall consist of) cash and any cash equivalents
(if any) as Banks may approve as being acceptable cash
collateral from time to time. In the event that such Cash
Collateral in form and substance reasonably satisfactory to
Banks is timely provided to Agent on behalf of Banks as
required hereby, then Agent shall, in connection with the
providing of such Cash Collateral, release the shares of
common stock of Keystone pledged by Borrower to Agent
pursuant to the Security Agreement; provided, however, that
Agent shall not release any such shares and Borrower shall
not be obligated to provide any such Cash Collateral if, on
or before the appropriate date of the proposed release, an
Event of Default specified in clause (d), (e) or (f) of the
"Event of Default" section of this Agreement shall have
occurred. In the event that, for whatever reason, Borrower
fails to timely provide such Cash Collateral as required
pursuant to this section, then, notwithstanding anything to
the contrary contained herein or in the Security Agreement,
Agent may (at its discretion) sell, transfer, dispose of or
otherwise liquidate all or any portion of the shares of
common stock of Keystone pledged by Borrower to Agent
pursuant to the Security Agreement and any other Collateral
securing the Indebtedness (as such term is defined in the
Security Agreement) and hold the proceeds thereof as cash
collateral to secure the Indebtedness (as such term is
defined in the Security Agreement), including, without
limitation, the contingent indebtedness of Borrower to Banks
in connection with outstanding Letters of Credit, pursuant
to the Security Agreement. To the extent the Cash
Collateral consists of cash, it shall be held in an interest
bearing account or accounts mutually acceptable to Borrower
and Agent and, if and to the extent feasible, the interest
accrued thereon shall be distributed to Borrower from time
to time upon request by Borrower to Agent so long as no
Event of Default, or occurrence or event which, with the
giving of notice or lapse of time, or both, would become an
Event of Default, has occurred and is then continuing."
(c) Representations and Warranties. Subparagraph (d) of the section
of the Letter Agreement entitled "Representations and Warranties" is hereby
amended to read in its entirety as follows:
"all shares of common stock of Keystone constituting a part
of the Collateral and all shares of common stock of Keystone
which may be subsequently pledged as Collateral (i) are not
subject to any restrictions on sale or transfer except for
any restrictions regarding compliance with applicable
securities laws and (ii) either (A) are not, and will not
be, "restricted securities" as such term is used or defined
in paragraph (a)(3) of Rule 144, or (B) if and to the extent
such shares are or will be "restricted securities" as so
defined, such shares have been held by Borrower for greater
than three (3) years within the meaning of and as calculated
pursuant to the holding period provisions of paragraph (d)
of Rule 144, and Borrower fully paid the purchase price of
the Keystone shares at the time it acquired the Keystone
shares and did not give a promissory note or enter into any
installment purchase contract or any other obligation as any
part of its payment of the purchase price of the Keystone
shares; provided, however, that the representation and
warranty contained in clause (ii) immediately preceding
shall apply only to 2,971,233 shares of common stock of
Keystone pledged as Collateral."
(d) 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 First Amendment to Letter Agreement and
Security Agreement dated December 17, 1991, by and among
Borrower, Banks and Agent, that certain Second Amendment to
Letter Agreement and Security Agreement dated October 31,
1992, by and among Borrower, Banks and Agent, that certain
Third Amendment to Letter Agreement and Security Agreement
dated October 31, 1993, by and among Borrower, Banks and
Agent and that certain Fourth Amendment to Letter Agreement
and Security Agreement dated September 30, 1994, by and
among Borrower, Banks and Agent (as amended, the "Security
Agreement"), (b) Amended and Restated Promissory Note dated
October 31, 1993, in the original principal amount of
$9,000,000 made by Borrower payable to the order of Paribas
(the "Paribas Note"), (c) Amended and Restated Promissory
Note dated October 31, 1993, in the original principal
amount of $9,000,000 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 Keystone Shares. Clause (i) of Subparagraph (b) of
Paragraph 21 of the Security Agreement is hereby amended to read in its
entirety as follows:
"(i) the 2,971,233 shares of common stock of Keystone
Consolidated Industries, Inc. ("Keystone") delivered to the
Bank prior to or on or about October 31, 1991 and any and
all additional shares of common stock of Keystone at any
time delivered to the Bank (collectively, the "Keystone
Shares");".
(b) Definition of Indebtedness. Subparagraph (d)) of Paragraph 21 of
the Security Agreement is hereby amended to read in its entirety as
follows:
"The term 'Indebtedness', as used in this Agreement, shall
mean and refer to any and all debts, obligations or
liabilities, whether now existing or herewith or hereafter
incurred or created, whether voluntary or involuntary,
whether due or not due, whether absolute or contingent, or
whether incurred directly or acquired by the Bank by
assignment or otherwise, of the undersigned to the Bank
pursuant to the Letter Agreement (as hereinafter defined),
the Promissory Notes (as hereinafter defined), the Letters
of Credit (as such term is defined in the Letter Agreement)
or the other Loan Papers (as hereinafter defined)."
(c) Cash Collateral. Subparagraph (1) of Paragraph 21 of the
Security Agreement is hereby amended to read in its entirety as follows:
"If, by reason of the occurrence of an Event of Default or
the fact that any Letter of Credit is outstanding after the
Maturity Date (as such term is defined in the Letter
Agreement), Agent or any Bank receives cash collateral or
other payment from Borrower or proceeds from the disposition
of any Collateral at a time when any Letter of Credit
remains outstanding, Agent shall be entitled, after
application of such cash collateral or other payment or
proceeds to any Indebtedness then due and payable by
Borrower if Agent elects to make such application, to retain
such cash collateral or other payment or proceeds as cash
collateral to secure the remaining Indebtedness (including
without limitation any Indebtedness consisting of contingent
indebtedness with respect to Letters of Credit) and, in
furtherance thereof, Borrower hereby grants to the Bank a
security interest therein as security for the Indebtedness
in accordance with this Agreement."
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
continue 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) 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/ Xxxxxx X. Xxxx
-------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
By: /s/ Pierre-Xxxx xx Xxxxxxxx
-------------------------
Name: Pierre-Xxxx xx Xxxxxxxx
Title: General Manager
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Manager
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
AGREED AND ACCEPTED:
CONTRAN CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President-Finance
Effective as of October 31, 1994
Contran Corporation
Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxx, Vice President-Finance
Re: Fifth Amendment to Letter Agreement and Security Agreement
Ladies and Gentlemen:
Reference is made to (a) that certain 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) that certain Security Agreement dated October 31, 1991,
executed by Borrower to and in favor of Agent, Paribas and SG (as amended, the
"Security Agreement"), (c) that certain First Amendment to Letter Agreement and
Security Agreement dated Xxxxx 00, 0000, xx xxxxx Xxxxxxxx, Xxxxxxx, XX and
Agent, (d) that certain Second Amendment to Letter Agreement and Security
Agreement dated October 31, 1992, by and among Borrower, Paribas, SG and Agent,
(e) that certain Third Amendment to Letter Agreement and Security Agreement
dated October 31, 1993, by and among Borrower, Paribas, SG and Agent and (f)
that certain Fourth Amendment to Letter Agreement and Security Agreement dated
October 31, 1994, 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 Fourth
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) Maturity Date. The section of the Letter Agreement entitled
"Maturity Date" is hereby amended to read in its entirety as follows:
"October 30, 1995 (the 'Maturity Date'), subject to
acceleration upon the occurrence of an Event of Default."
(b) 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 First Amendment to Letter Agreement and
Security Agreement dated December 17, 1991, by and among
Borrower, Banks and Agent, that certain Second Amendment to
Letter Agreement and Security Agreement dated October 31,
1992, by and among Borrower, Banks and Agent, that certain
Third Amendment to Letter Agreement and Security Agreement
dated October 31, 1993, by and among Borrower, Banks and
Agent, that certain Fourth Amendment to Letter Agreement and
Security Agreement dated September 30, 1994, by and among
Borrower, Banks and Agent and that certain Fifth Amendment
to Letter Agreement and Security Agreement dated October 31,
1994, by and among Borrower, Banks and Agent (as amended,
the 'Security Agreement'), (b) Amended and Restated
Promissory Note dated October 31, 1994, in the original
principal amount of $9,000,000 made by Borrower payable to
the order of Paribas (the 'Paribas Note'), (c) Amended and
Restated Promissory Note dated October 31, 1994, in the
original principal amount of $9,000,000 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 Subpargraph (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
31, 1994, in the original principal amount of $9,000,000
made by the undersigned payable to the order of Banque
Paribas Houston Agency, (iii) that certain Amended and
Restated Promissory Note dated October 31, 1994, in the
original principal amount of $9,000,000 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
continue 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 $9,000,000 made by Borrower payable to the order
of each of Paribas and 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/ Xxxxxx X. Xxxx
-------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
By: /s/ Pierre-Xxxx xx Xxxxxxxx
-------------------------
Name: Pierre-Xxxx xx Xxxxxxxx
Title: General Manager
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Manager
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
AGREED AND ACCEPTED:
CONTRAN CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President-Finance
Effective as of October 30, 1995
Contran Corporation
Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxx, Vice President-Finance
Re: Sixth Amendment to Letter Agreement and Security Agreement
Ladies and Gentlemen:
Reference is made to (a) that certain Letter Agreement dated October 31,
1991, by and among BANQUE PARIBAS HOUSTON AGENCY ("Paribas"), SOCIETE GENERALE
SOUTHWEST AGENCY, 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) that certain Security Agreement dated October 31, 1991,
executed by Borrower to and in favor of Agent, Paribas and SG (as amended, the
"Security Agreement"), (c) that certain First Amendment to Letter Agreement and
Security Agreement dated Xxxxx 00, 0000, xx xxxxx Xxxxxxxx, Xxxxxxx, XX and
Agent, (d) that certain Second Amendment to Letter Agreement and Security
Agreement dated October 31, 1992, by and among Borrower, Paribas, SG and Agent,
(e) that certain Third Amendment to Letter Agreement and Security Agreement
dated October 31, 1993, by and among Borrower, Paribas, SG and Agent, (f) that
certain Fourth Amendment to Letter Agreement and Security Agreement dated
September 30, 1994, by and among Borrower, Paribas, SG and Agent and (g) that
certain Fifth Amendment to Letter Agreement and Security Agreement dated October
31, 1994, 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 Sixth
Amendment to Utter 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 'Loan') 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 $11,000,000 of the Committed Amount and the
commitment of SG shall be $9,000,000 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) Security. The section of the Letter Agreement entitled
"Security" is hereby amended to read in its entirety as follows:
"Banks shall have a perfected first priority security
interest in at least 3,121,233 shares of common stock of
Keystone Consolidated Industries, Inc. ('Keystone').
Borrower shall deliver to Agent the stock certificates
representing the Keystone shares and appropriate stock
powers, executed in blank and in proper form for transfer,
relating thereto, and thereby pledge the Keystone shares to
Banks as further provided in the Security Agreement (as
hereinafter defined). Borrower may, from time to time,
pledge additional marketable securities acceptable to Banks
in their discretion, including shares of common stock of
Keystone which Banks hereby agree, in advance, are
acceptable collateral."
(c) Maturity Date. The section of the Letter Agreement entitled
"Maturity Date" is hereby amended to read in its entirety as follows:
"October 29, 1996 (the 'Maturity Date'), subject to
acceleration upon the occurrence of an Event of Default."
(d) Borrowing Rates. The first sentence of the section of the Letter
Agreement entitled "Borrowing Rates" is hereby amended to read in its
entirety as follows:
"Borrower's option of Base Rate (as defined in the
Promissory Notes) or one, two or three month reserve
adjusted LIBOR + 1-1/2 %(the 'LIBOR Rate')".
(e) Representations and Warranties. Subparagraph (d) of the, section
of the Letter Agreement entitled "Representations and Warranties' is hereby
amended to read in its entirety as follows:
"all shares of common stock of Keystone constituting a part
of the Collateral and all shares of common stock of Keystone
which may be subsequently pledged as Collateral (i) are not
subject to any restrictions on sale or transfer except for
any restrictions regarding compliance with applicable
securities laws and (ii) either (A) are not, and will not
be, "restricted securities" as such term is used or defined
in paragraph (a)(3) of Rule 144, or (B) if and to the extent
such shares are or will be "restricted securities" as so
defined, such shares have been held by Borrower for greater
than three (3) years within the meaning of and as calculated
pursuant to the holding period provisions of paragraph (d)
of Rule 144, and Borrower fully paid the purchase price of
the Keystone shares at the time it acquired the Keystone
shares and did not give a promissory note or enter into any
installment purchase contract or any other obligation as any
part of its payment of the purchase price of the Keystone
shares; provided, however, that (1) the representation and
warranty contained in clause (ii) immediately preceding
shall apply only to 3,121,233 shares of common stock of
Keystone pledged as Collateral and (2) 400,000 shares of
common stock of Keystone pledged as Collateral have been
held by Borrower only since the date of the stock
certificates evidencing such shares as stated in Paragraph 4
of the certain letter agreement dated December 7, 1994, by
and among Borrower, Banks and Agent."
(f) 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 First Amendment to Letter Agreement and
Security Agreement dated December 17, 1991, by and among
Borrower, Banks and Agent, that certain Second Amendment to
Letter Agreement and Security Agreement dated October 31,
1992, by and among Borrower, Banks and Agent, that certain
Third Amendment to Letter Agreement and Security Agreement
dated October 31, 1993, by and among Borrower, Banks and
Agent, that certain Fourth Amendment to Letter Agreement and
Security Agreement dated September 30, 1994, by and among
Borrower, Banks and Agent, that certain Fifth Amendment to
Letter Agreement and Security Agreement dated October 31,
1994, by and among Borrower, Banks and Agent and that
certain Sixth Amendment to Letter Agreement and Security
Agreement dated October 30, 1995, by and among Borrower,
Banks and Agent (as amended, the 'Security Agreement'), (b)
Amended and Restated Promissory Note dated October 30, 1995,
in the original principal amount of $11,000,000 made by
Borrower payable to the order of Paribas (the 'Paribas
Note), (c) Amended and Restated Promissory Note dated
October 30, 1995, in the original principal amount of
$9,000,000 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."
(g) Pro Rata Share. The first sentence of the section of the Letter
Agreement entitled "Pro Rata Share" is hereby deleted.
3. Amendments to Security Agreement.
(a) Definition of Collateral. Clause (i) of Subparagraph (b) of
Paragraph 21 of the Security Agreement (see Addendum 2 to the Security
Agreement regarding definition of Collateral) is hereby amended to read in
its entirety as follows:
"(i) the 3,121,233 shares of common stock of Keystone
Consolidated Industries, Inc. ('Keystone') previously delivered
and/or concurrently herewith being delivered to the Bank (the
'Keystone Shares');".
(b) 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
30, 1995, in the original principal amount of $1 1,000,000
made by the undersigned payable to the order of Banque
Paribas Houston Agency, (iii) that certain Amended and
Restated Promissory Note dated October 30, 1995, in the
original principal amount of $9,000,000 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
continue 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 $11,000,000 made by Borrower payable to the order
of Paribas and an Amended and Restated Promissory Note in the original
principal amount of $9,000,000 made by Borrower payable to the order
of SG;
(ii) an Amended and Restated Federal Reserve Form U-I 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/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant 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
-------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President-Finance
Effective as of March 27, 1996
Contran Corporation
Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxx, Vice President-Finance
Re: Seventh Amendment to Letter Agreement and Security Agreement
Ladies and Gentlemen:
Reference is made to (a) that certain Letter Agreement dated October 31,
1991, by and among BANQUE PARIBAS HOUSTON AGENCY ("Paribas"), SOCIETE GENERALE,
SOUTHWEST AGENCY, 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) that certain Security Agreement dated October 31, 1991,
executed by Borrower to and in favor of Agent, Paribas and SG (as amended, the
"Security Agreement"), (c) that certain First Amendment to Letter Agreement and
Security Agreement dated Xxxxx 00, 0000, xx xxxxx Xxxxxxxx, Xxxxxxx, XX and
Agent, (d) that certain Second Amendment to Letter Agreement and Security
Agreement dated October 31, 1992, by and among Borrower, Paribas, SG and Agent,
(e) that certain Third Amendment to Letter Agreement and Security Agreement
dated October 31, 1993, by and among Borrower, Paribas, SG and Agent, (f) that
certain Fourth Amendment to Letter Agreement and Security Agreement dated
September 30, 1994, by and among Borrower, Paribas, SG and Agent, (g) that
certain Fifth Amendment to Letter Agreement and Security Agreement dated October
31, 1994, by and among Borrower, Paribas, SG and Agent, and (h) that certain
Sixth Amendment to Letter Agreement and Security Agreement dated October 30,
1995, 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 Seventh
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) Security. The section of the Letter Agreement entitled
"Security" is hereby amended to read in its entirety as follows:
"Banks shall have a perfected first priority security
interest in at least (a) 3,121,233 shares of common stock of
Keystone Consolidated Industries, Inc. ('Keystone') and (b)
2,000,000 shares of common stock of Valhi, Inc. ('Valhi').
Borrower shall deliver to Agent the stock certificates
representing the Keystone shares and the Valhi shares and
appropriate stock powers, executed in blank and in proper
form for transfer, relating thereto, and thereby pledge the
Keystone shares and the Valhi shares to Banks as further
provided in the Security Agreement (as hereinafter defined).
Borrower may, from time to time, pledge additional
marketable securities acceptable to Banks in their
discretion, including shares of common stock of Keystone and
Valhi which Banks hereby agree, in advance, are acceptable
collateral; provided, however, that additional shares of
common stock of Valhi that would result in the pledge of ten
percent or more of any class of stock issued by Valhi are
not so agreed by the Banks in advance to be acceptable
collateral."
(b) Collateral Value Maintenance. The section of the Letter
Agreement entitled 'Collateral Value Maintenance' is hereby amended to add
the word "promptly" immediately following the word "shall" and preceding
the word 'either' in the fifth line of such section.
(c) Representations and Warranties. Subparagraph (d) of the section
of the Letter Agreement entitled "Representations and Warranties" is hereby
amended to read in its entirety as follows:
"all shares of common stock of Keystone constituting a part
of the Collateral, all shares of common stock of Valhi
constituting a part of the Collateral and all shares of
common stock of Keystone or Valhi which may be subsequently
pledged as Collateral (i) are not subject to any
restrictions on sale or transfer except for any restrictions
regarding compliance with applicable securities laws and
(ii) either (A) are not, and will not be, 'restricted
securities' as such term is used or defined in paragraph
(a)(3) of Rule 144, or (B) if and to the extent such shares
are or will be 'restricted securities' as so defined, such
shares have been held by Borrower for greater than three (3)
years within the meaning of and as calculated pursuant to
the holding period provisions of paragraph (d) of Rule 144,
and Borrower fully paid the purchase price of the Keystone
shares and the Valhi shares at the time it acquired the
Keystone shares and the Valhi shares, respectively, and did
not give a promissory note or enter into any installment
purchase contract or any other obligation to or with the
transferor of such Keystone shares or Valhi shares,
respectively, as any part of its payment of the purchase
price of the Keystone shares or the Valhi shares,
respectively; provided, however, that (1) the representation
and warranty contained in clause (ii) immediately preceding
as it relates to the Keystone shares only (but not as it
relates to the Valhi shares) shall apply only to 3,121,233
shares of common stock of Keystone pledged as Collateral and
(2) 400,000 shares of common stock of Keystone pledged as
Collateral have been held by Borrower only since the date of
the stock certificates evidencing such shares as stated in
Paragraph 4 of the certain letter agreement dated December
7, 1994, by and among Borrower, Banks and Agent."
(d) 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 First Amendment to Letter Agreement and
Security Agreement dated December 17, 1991, by and among
Borrower, Banks and Agent, that certain Second Amendment to
Letter Agreement and Security Agreement dated October 31,
1992, by and among Borrower, Banks and Agent, that certain
Third Amendment to Letter Agreement and Security Agreement
dated October 31, 1993, by and among Borrower, Banks and
Agent, that certain Fourth Amendment to Letter Agreement and
Security Agreement dated September 30, 1994, by and among
Borrower, Banks and Agent, that certain Fifth Amendment to
Letter Agreement and Security Agreement dated October 31,
1994, by and among Borrower, Banks and Agent, that certain
Sixth Amendment to Letter Agreement and Security Agreement
dated October 30, 1995, by and among Borrower, Banks and
Agent and that certain Seventh Amendment to Letter Agreement
and Security Agreement dated March 27, 1996, by and among
Borrower, Banks and Agent (as amended, the 'Security
Agreement'), (b) Amended and Restated Promissory Note dated
October 30, 1995, in the original principal amount of
$11,000,000 made by Borrower payable to the order of Paribas
(the 'Paribas Note'), (c) Amended and Restated Promissory
Note dated October 30, 1995, in the original principal
amount of $9,000,000 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 Collateral. Subparagraph (b) of Paragraph 21 of
the Security Agreement (see Addendum 2 to the Security Agreement regarding
definition of Collateral) is hereby amended to read in its entirety as
follows:
"(b) Definition of Collateral. The term 'Collateral',
as used in this Agreement, shall mean and refer to any and
all rights, titles and interests of the undersigned, Contran
Corporation ('Contran'), in and to the following:
(i) 3,121,233 shares of common stock of Keystone
Consolidated Industries, Inc. ('Keystone') previously
delivered and/or concurrently herewith being delivered
to the Bank (the 'Keystone Shares') (which Keystone
Shares presently, as of March 27, 1996, include those
identified on Schedule 3 attached hereto and
incorporated herein by reference);
(ii) 2,000,000 shares of common stock of Valhi,
Inc. ('Valhi') previously delivered and/or concurrently
herewith being delivered to the Bank (the 'Valhi
Shares') (which Valhi Shares presently, as of March 27,
1996, include those identified on Schedule 3 attached
hereto and incorporated herein by reference);
(iii) any and all money, securities
(certificated and uncertificated), instruments,
investment property, financial assets, securities
accounts, security entitlements and other property
heretofore delivered or which shall concurrently
herewith or hereafter be delivered to or come into
possession, custody or control of the Bank or any third
party acting on the Bank's behalf, in any manner or for
any purposes whatever during the existence of this
Agreement, and whether held in a general or special
account or deposit or for safe-keeping, or otherwise,
to the extent but only to the extent that such money,
securities, instruments, investment property, financial
assets, securities accounts, security entitlements and
other property relate, to or constitute proceeds of the
Keystone Shares or the Valhi Shares, together with any
and all interest, stock rights, rights to subscribe,
liquidating dividends, stock dividends, dividends in
cash and other assets, new securities and other
property to which Contran is or may hereafter become
entitled to receive on account of the Keystone Shares
and the Valhi Shares (provided, however, that, except
as provided in the proviso below, any cash or stock
dividends which are both declared and paid prior to the
occurrence of an Event of Default and prior to the
occurrence of an occurrence or event which, with the
giving of notice or lapse of time, or both, would
become an Event of Default may be received by Contran
free and clear of the security interest created by this
Agreement, provided further, however, that the
foregoing proviso shall not apply to (A) cash dividends
paid or payable in connection with a partial or total
liquidation or dissolution or in connection with a
reduction of capital or surplus or in connection with a
redemption of or exchange for any Collateral or (B)
stock dividends if, at the time of declaration or
payment thereof, and assuming such stock dividends were
not pledged to the Bank as security for the
Indebtedness, the sum of the outstanding principal
amount of the Loans plus the amount available for
drawing under outstanding Letters of Credit exceeds 49%
of the then current aggregate market value of the
Keystone Shares and Valhi Shares pledged to the Bank as
security for the Indebtedness); and
(iv) any and all proceeds of the Keystone Shares
and the Valhi Shares and of the money, securities,
instruments, investment property, financial assets,
securities accounts, security entitlements and other
property referred to in clauses (i), (ii), and (iii)
preceding."
(b) Valid Security Interest. Subparagraph (j) of Paragraph 21 of the
Security Agreement (see Addendum 2 to the Security Agreement) is hereby
amended to read in its entirety as follows:
"(j) Valid Security Interest. Contran represents and
warrants to the Bank that the Bank has a valid, enforceable,
first priority pledge of and security interest in the
Keystone Shares and the Valhi Shares."
(c) Rule 144. Subparagraph (k) of Paragraph 21 of the Security
Agreement (see Addendum 2 to the Security Agreement) is hereby amended to
read in its entirety as follows:
"(k) Rule 144. Contran agrees that, if ten percent or
more of any class of Keystone Shares or Valhi Shares is then
pledged as Collateral or if the Bank otherwise is or would
be an affiliate of the issuer of such shares for purposes of
Rule 144, (i) it shall not, without the prior written
consent of the Bank (which consent shall not be unreasonably
withheld), sell any securities of the issuers of the
Keystone Shares or the Valhi Shares (the 'Stock'),
respectively, that are of the same class as the Stock, and
(ii) it shall (A) give prompt written notice to Agent of any
sales or purchases by the undersigned, or by any other
person or entity whose sales would be aggregated with those
of the Bank for purposes of Rule 144, of any securities of
the issuers of the Stock that are of the same class as the
Stock, whether such sales or purchases have occurred within
the past three (3) months from the date thereof or are
proposed to occur and (B) use its best efforts to cause any
person or entity whose sales are to be aggregated with those
of Contran or the Bank for purposes of Rule 144 to withhold
from any sales any securities of the issuers of the Stock
that are of the same class as the Stock."
(d) Addendum. Numbered Paragraph 21 of the Security Agreement which
appears immediately above Borrower's signature on the fourth page of the
Security Agreement is hereby amended to read in its entirety as follows:
"21. The terms and provisions of Addendum 1, Addendum 2
and Addendum 3 attached hereto are hereby incorporated
herein by reference for all purposes."
(e) Addendum 3 to the Security Agreement. A new Addendum 3 is hereby
added to the Security Agreement, which Addendum 3 shall read in its
entirety as set forth on Seventh Amendment Addendum A attached hereto and
incorporated herein by reference.
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
continue 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) the stock certificates representing the shares of common
stock of Valhi, Inc. being pledged by Borrower in connection with this
Amendment and instruments of transfer executed in blank by Borrower
with respect to such stock certificates, and a UCC-1 financing
statement executed by Borrower covering the Collateral (including such
shares of common stock of Valhi, Inc.);
(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.
(h) Borrower agrees that it will, from time to time upon the request
of Agent, execute and deliver to Agent such financing or continuation
statements or amendments thereto, and take or cause to be taken such other
actions, as may be necessary or appropriate in the reasonable opinion of
Agent to create, perfect and preserve the perfected and first priority
security interests in the Collateral (as defined in the Security Agreement)
granted (or purported to be granted) by the Security Agreement as amended
hereby.
(i) Borrower represents and warrants that (i) the shares of common
stock of Keystone Consolidated Industries, Inc. and Valhi, Inc. described
on Seventh Amendment Addendum A attached hereto (the "Presently Pledged
Shares") are and shall be deemed to be pledged as Collateral to secure the
payment and performance of the Indebtedness (as defined in the Security
Agreement) in accordance with the terms and provisions of the Security
Agreement, (ii) none of the stock certificates representing the Presently
Pledged Shares contains any restrictions on transfer, and (iii) the chief
executive office and principal place of business of Borrower are located in
Dallas County, Texas.
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/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant 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
-------------------------
Name: Xxxxxxx X. Xxxx
