SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 39)*
KEYSTONE CONSOLIDATED INDUSTRIES, INC.
(Name of Issuer)
Common Stock, $1.00 par value
(Title of Class of Securities)
49342210900
(CUSIP Number)
WILLIAM C. TIMM
THREE LINCOLN CENTRE
SUITE 1700
5430 LBJ FREEWAY
DALLAS, TEXAS 75240
(214) 233-1700
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 23, 1994
(Date of Event which requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box.
Check the following box if a fee is being paid with the statement.
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to by "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following pages)
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
NL Industries, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New Jersey
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
326,050
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
326,050
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
326,050
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.8%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Tremont Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
326,050
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
326,050
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
326,050
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.8%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Valhi, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
326,050
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
326,050
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
326,050
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.8%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Valhi Group, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Nevada
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
326,050
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
326,050
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
326,050
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.8%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
National City Lines, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
326,050
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
326,050
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
326,050
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.8%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
NOA, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
326,050
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
326,050
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
326,050
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.8%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Dixie Holding Company
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
326,050
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
326,050
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
326,050
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.8%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Dixie Rice Agricultural Corporation, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Louisiana
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
326,050
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
326,050
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
326,050
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.8%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Southwest Louisiana Land Company, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Louisiana
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
326,050
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
326,050
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
326,050
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.8%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Contran Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
3,540,083
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
3,540,083
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,540,083
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
63.3%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Combined Master Retirement Trust
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
356,050
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
356,050
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
356,050
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.4%
14
TYPE OF REPORTING PERSON*
EP
[FN]
* See instructions before filling out.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Harold C. Simmons
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
3,570,083
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
10 SHARED DISPOSITIVE POWER
3,570,083
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-0-
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* X
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
-0-
14
TYPE OF REPORTING PERSON*
IN
[FN]
* See instructions before filling out.
AMENDMENT NO. 39
TO SCHEDULE 13D
This amended and restated statement on Schedule 13D (this "Statement")
is the initial electronic filing by the Reporting Persons, as defined below.
Item 1. Security and Issuer.
This Statement relates to the Common Stock, $1.00 par value per share
(the "Shares") of Keystone Consolidated Industries, Inc., a Delaware corporation
(the "Company"). The principal executive officers of the Company are located at
Three Lincoln Centre, 5430 LBJ Freeway, Suite 1740, Dallas, Texas 75240.
Item 2. Identity and Background
(a) This Statement is filed by (i) Contran Corporation ("Contran"),
The Combined Master Retirement Trust (the "Master Trust") and NL Industries,
Inc. ("NL") as the direct beneficial owners of Shares, (ii) by virtue of the
direct and indirect ownership of securities of NL (as described below on this
Statement) by Tremont Corporation ("Tremont"), Valhi Inc. ("Valhi"), Valhi
Group, Inc., ("VGI"), National City Lines, Inc. ("National"), NOA, Inc. ("NOA"),
Dixie Rice Agricultural Corporation, Inc. ("Dixie Rice"), Dixie Holding Company
("Dixie Holding") and Southwest Louisiana Land Company, Inc. ("Southwest") and
(iii) by virtue of his positions with Contran, the Master Trust and certain of
the other entities listed above (as reported on this Statement), Harold C.
Simmons (collectively, the "Reporting Persons"). By signing this Statement,
each Reporting Person agrees that this Statement is filed on its or his behalf.
Valhi and Tremont are the holders of approximately 48.7% and 17.8%,
respectively, of the outstanding common stock of NL. Together Valhi and Tremont
may be deemed to control NL. Valhi is the holder of approximately 48.1% of the
outstanding common stock of Tremont and may be deemed to control Tremont. VGI,
National and Contran are the holders of approximately 74.5%, 10.0% and 5.1%,
respectively, of the outstanding common stock of Valhi. Together, VGI, National
and Contran may be deemed to control Valhi. National, NOA, and Dixie Holding
are the holders of approximately 73.3%, 11.4% and 15.3%, respectively, of the
outstanding common stock of VGI. Together, National, NOA and Dixie Holding may
be deemed to control VGI. Contran and NOA are the holders of approximately
85.7% and 14.3%, respectively, of the outstanding common stock of National and
together may be deemed to control National. Contran and Southwest are the
holders of approximately 49.9% and 50.1%, respectively, of the outstanding
common stock of NOA and together may be deemed to control NOA. Dixie Rice is
the holder of 100% of the outstanding common stock of Dixie Holding and may be
deemed to control Dixie Holding. Contran is the holder of approximately 88.7%
and 54.3% of the outstanding common stock of Southwest and Dixie Rice,
respectively, and may be deemed to control Southwest and Dixie Rice. All of
Contran's outstanding voting stock is held by trusts, (together, the "Trusts"),
established for the benefit of Mr. Simmons' children and grandchildren, of which
Mr. Simmons is the sole trustee. As sole trustee of the Trusts, Mr. Simmons has
the power to vote and direct the disposition of the shares of Contran stock held
by the Trusts; however, Mr. Simmons disclaims beneficial ownership thereof.
The Master Trust holds approximately .1% of the outstanding shares of Valhi
common stock. The Master Trust is a trust formed by Valhi to permit the
collective investment by trusts which maintain the assets of certain employee
benefit plans adopted by Valhi and related companies. Mr. Simmons is sole
trustee of the Master Trust and sole member of the Trust Investment Committee
for the Master Trust. Mr. Simmons is a participant in one or more of the
employee benefit plans which invest through the Master Trust; however, Mr.
Simmons disclaims beneficial ownership of the Shares and of Valhi common stock
held by the Master Trust, except to the extent of his vested beneficial interest
therein. Mr. Simmons is Chairman of the Board and Chief Executive Officer of
Valhi, VGI, National, NOA, Dixie Rice, Dixie Holding, Southwest and Contran, is
Chairman of the Board of NL, and is a Director of Tremont.
By virtue of the relationships described above (a) Mr. Simmons may be
deemed to control Tremont, NL, Valhi, VGI, National, NOA, Dixie Rice, Dixie
Holding, Southwest and Contran (b) Mr. Simmons (as trustee), the Trusts,
Tremont, Valhi, VGI, National, NOA, Dixie Rice, Dixie Holding, Southwest and
Contran may be deemed to possess indirect beneficial ownership of the Shares
held by NL (c) Mr. Simmons (as trustee) and the Trusts may be deemed to possess
indirect beneficial ownership of the Shares held by Contran and (d) Mr. Simmons
(as trustee) may be deemed to possess indirect beneficial ownership of the
Shares held by the Master Trust. However, Mr. Simmons and the Trusts disclaim
such beneficial ownership of the Shares beneficially owned, directly or
indirectly, by such entities.
Certain information concerning the directors and executive officers of the
Reporting Persons, including offices held by Mr. Simmons, is set forth on
Schedule B attached hereto and incorporated herein by reference.
(b) The principal executive offices of NL are located at 3000 North
Sam Houston Parkway East, Houston, Texas 77032. The principle executive offices
of Tremont are located at 1999 Broadway, Suite 4300, Denver, Colorado 80202.
The principal offices of Valhi, VGI, National, NOA, Dixie Rice, Dixie Holding,
Southwest and Contran are located at, and the business address of each of the
Master Trust and Harold C. Simmons is, Three Lincoln Centre, 5430 LBJ Freeway,
Suite 1700, Dallas, Texas 75240. The principal business address of Dixie Rice
is 600 Pasquiere Street, Gueydan, Louisiana 70542. The principal business
address of Southwest is 402 Canal Street, Houma, Louisiana 70360. The business
addresses of the remaining directors and executive officers of the Reporting
Persons are set forth on Schedule B to this Statement and incorporated herein by
reference.
(c) NL is a holding company engaged through subsidiaries in the
international production and marketing of chemical products.
Tremont is a holding company engaged through subsidiaries (other than
NL) in the production and marketing of titanium metals products.
Valhi is a diversified industrial management company engaged, through
operating subsidiaries (other than NL and Tremont), in the refined sugar,
integrated forest products, fast food and hardware products industries.
VGI does not engage in any business activity other than holding common
stock of Valhi. National is engaged directly or through subsidiaries (other
than VGI and its subsidiaries), in real estate and oil and gas activities.
Contran is engaged through subsidiaries (including Southwest, Dixie and others),
other than National and its subsidiaries, in various land management,
agricultural and oil and gas activities. NOA holds investments in land,
securities and notes receivable. Dixie Holding does not engage in any business
activity other than holding common stock of VGI.
The Master Trust is a trust formed by Valhi to permit the collective
investment by trusts which maintain the assets of certain employee benefit plans
adopted by Valhi and related companies. The employee benefit plans funded by
the trusts participating in the Master Trust are subject to the provisions of
the Employer Retirement Income Security Act ("ERISA").
(d) Neither any of the Reporting Persons nor, to the best knowledge
of such persons, any person named in Schedule B to this Statement, has been
convicted in a criminal proceeding in the past five years (excluding traffic
violations or similar misdemeanors).
(e) During the past five years, neither any of the Reporting Persons
nor, to the best knowledge of such persons, any person named in Schedule B to
this Statement, was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which such person
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws of finding any violation with respect to such laws.
(f) NL is a New Jersey corporation. Contran, Valhi, Tremont, Dixie
Holding, and National are Delaware corporations. VGI is a Nevada corporation.
NOA is a Texas corporation. Dixie and Southwest are Louisiana corporations.
The Master Trust is governed by the laws of Texas, except as those laws are
superseded by federal law. Harold C. Simmons and all persons named on Schedule
B to this Statement are citizens of the United States, except as otherwise
indicated on such Schedule.
Item 3. Source and Amount of Funds or Other Consideration
The total amount of funds required by Contran to acquire the Shares
reported in Item 5(c) was $1,224,470 (including commissions). Such funds were
or will be provided by Contran's cash on hand and no funds were borrowed for
such purpose.
The Reporting Persons understand that the funds required by persons
named in Schedule B to this Statement to acquire Shares was from such persons'
personal funds.
Item 4. Purpose of Transaction.
NL and the Master Trust purchased Shares to acquire an equity interest
in the Company. Contran purchased the additional Shares reported in Item 5(c)
of this Statement in order to increase its equity interest in the Company.
Depending upon their evaluation of the Company's business and prospects, and
upon future developments (including, but not limited to, performance of the
Shares in the market, availability of funds, alternative uses of funds, and
money, stock market and general economic conditions), any of the Reporting
Persons (other than the Master Trust and Harold C. Simmons) or other entities
that may be deemed to be affiliated with Contran may from time to time purchase
Shares, and any of the Reporting Persons (other than Harold C. Simmons) or other
entities that may be deemed to be affiliated with Contran may from time to time
dispose of all or a portion of the Shares held by such person, or cease buying
or selling Shares. Any such additional purchases or sales of the Shares may be
in open market or privately-negotiated transactions or otherwise.
Harold C. Simmons, through Contran, may be deemed to control the
Company.
The Reporting Persons understand that prior purchases of Shares by
persons named in Schedule B to this Statement were made for the purpose of each
such persons personal investment.
Except as described in this Item 4, none of the Reporting Persons nor,
to the best knowledge of such persons, any other person named in Schedule B to
this Statement has formulated any plans or proposals which relate to or would
result in any matter required to be disclosed in response to paragraphs (a)
through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) NL is the direct beneficial owner of 326,050 Shares, or
approximately 5.8% of the 5,592,751 Shares outstanding as of April 30, 1994 (the
"Outstanding Shares"), according to information contained in the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1994 (the
"Quarterly Report"). By virtue of the relationships reported under Item 2 of
this Statement, each of the other Reporting Persons may be deemed to share
indirect beneficial ownership of the Shares directly beneficially owned by NL.
Harold C. Simmons disclaims all such beneficial ownership.
Contran is the direct beneficial owner of 3,214,033 Shares, or
approximately 57.5% of the Outstanding Shares according to information contained
in the Quarterly Report. By virtue of the relationships reported under Item 2
of this Statement, Contran may be deemed to be the beneficial owner of 3,540,083
Shares, or approximately 63.3% of the Outstanding Shares according to
information contained in the Quarterly Report.
The Master Trust is the direct beneficial owner of 30,000 Shares, or
approximately 0.5% of the Outstanding Shares according to information contained
in the Quarterly Report. By virtue of the relationships reported under Item 2
of this Statement the Master Trust may be deemed to be the beneficial owner of
356,050 Shares, or approximately 6.4% of the Outstanding Shares according to
information contained in the Quarterly Report.
The Reporting Persons understand, based on ownership filings with the
Securities and Exchange Commission or upon information provided by persons named
in Schedule B to this Statement, that the following persons may be deemed to
personally beneficially own Shares, as indicated below.
<TABLE>
<CAPTION>
Name No. Shares
<S> <C>
Eugene K. Anderson 750
Glenn R. Simmons 41,100
Harold C. Simmons 10,500*
Robert W. Singer 33,384
J. Walter Tucker, Jr. 153,450
Steven L. Watson 250
</TABLE>
[FN]
* Shares held by spouse to which beneficial ownership is expressly disclaimed.
(b) Each of the Master Trust, Contran, and NL has the direct power to
vote and direct the disposition of the Shares held by it. By virtue of the
relationships described in Item 2, each of the Reporting Persons may be deemed
to share the indirect power to vote and direct the disposition of the Shares
held by NL, and Harold C. Simmons may be deemed to have the power to vote and
direct the disposition of the Shares held by the Master Trust.
(c) The table below sets forth purchases of the Shares by the
Reporting Persons during the last 60 days. All of such purchases were effected
by Contran on the New York Stock Exchange.
<TABLE>
<CAPTION>
Approximate Price
Per Share
Date Amount of Shares (exclusive of commissions)
<S> <C> <C>
04/13/94 10,700 11.75
04/14/94 800 11.75
04/15/94 1,200 11.75
04/18/94 2,900 11.75
04/19/94 800 11.75
04/20/94 1,900 11.75
04/21/94 300 11.75
04/25/94 1,300 11.75
04/26/94 3,400 11.75
04/28/94 1,100 11.75
04/29/94 400 11.75
04/29/94 1,700 11.875
04/29/94 900 12.00
05/05/94 300 11.75
05/06/94 1,200 11.75
05/09/94 400 11.75
05/11/94 500 11.75
05/13/94 4,900 11.75
05/17/94 3,000 11.50
05/18/94 200 11.50
05/23/94 5,000 11.75
05/24/94 5,900 12.00
05/24/94 900 12.25
05/24/94 600 12.375
05/25/94 100 12.25
05/25/94 5,100 12.375
05/25/94 3,100 12.50
05/25/94 1,200 12.75
05/26/94 500 13.00
05/26/94 1,800 13.25
05/27/94 700 13.50
05/27/94 200 13.875
05/31/94 5,200 14.25
06/01/94 200 14.50
06/02/94 300 14.875
06/02/94 4,300 15.00
06/03/94 5,000 15.00
06/06/94 7,600 14.875
06/07/94 1,500 14.875
06/07/94 7,300 15.00
</TABLE>
(d) The Master Trust, Contran and NL each has the right to receive
and the power to direct the receipt of dividends from, and proceeds from the
sale of, the Shares held by it.
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer.
Contran is a party to a $18 Million credit facility dated as of
October 31, 1991, as amended and supplemented December 17, 1991, October 31,
1992 and October 31, 1993, with Banque Paribas, Houston Agency and Societe
Generale, Southwest Agency (the "Paribas/Societe Facility"). Borrowings under
the Paribas/Societe Facility bear interest at the rate announced publicly from
time to tome by each bank as its base rate or at a rate of 1.75% over LIBOR, are
due October 31, 1994 or such extended maturity date as may be mutually agreed
to, and are secured by certain Shares. No borrowings are currently outstanding
under the Paribas/Societe Facility. The foregoing summary of the
Paribas/Societe Facility is qualified in its entirety by reference to the
attached Exhibit 1, which is incorporated herein by this reference.
Other than set forth above, neither any of the Reporting Persons nor,
to the best knowledge of such persons, any person named in Schedule B to this
Statement has any contract, arrangement, understanding or relationship (legal or
otherwise) with any person with respect to securities of the Company, including,
but not limited to, transfer or voting of any such securities, finder's fees,
joint ventures, loans or option arrangements, puts or calls, guarantees of
profits, division of profits or losses, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1. Credit Facility dated as of October 31, 1991, as amended
and supplemented December 17, 1991, October 31, 1992 and October 31, 1993, among
Contran, Banque Paribas, Houston Agency and Societe Generale, Southwest Agency.
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Date: June 8, 1994
By: /s/ Harold C. Simmons
Harold C. Simmons,
Signing in the capacities
listed on Schedule "A" attached
hereto and incorporated herein
by reference.
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Date: June 8, 1994
By: /s/ J. Landis Martin
J. Landis Martin,
Signing in the capacities listed
on Schedule "A" attached hereto
and incorporated herein
by reference.
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Date: June 8, 1994
By: /s/ William C. Timm
William C. Timm,
Signing in the capacities listed
on Schedule "A" attached hereto
and incorporated herein by
reference.
SCHEDULE A
Harold C. Simmons, individually, and as Trustee of
THE COMBINED MASTER RETIREMENT TRUST.
William C. Timm, as Vice President-Finance and Administration of each of:
CONTRAN CORPORATION
DIXIE RICE AGRICULTURAL CORPORATION, INC.
DIXIE HOLDING COMPANY
NATIONAL CITY LINES, INC.
NOA, INC.
VALHI GROUP, INC.
VALHI, INC.
SOUTHWEST LOUISIANA LAND COMPANY, INC.
J. Landis Martin, as Chief Executive Officer and President of each of:
NL INDUSTRIES, INC.
TREMONT CORPORATION
SCHEDULE B
The names of the directors and executive officers of Contran
Corporation ("Contran"), Dixie Rice Agricultural Corporation, Inc. ("Dixie
Rice"), Dixie Holding Company ("Dixie Holding"), National City Lines, Inc.
("National"), NOA, Inc. ("NOA"), Southwest Louisiana Land Company, Inc.
("Southwest"), Valhi Group, Inc. ("VGI"), Valhi, Inc. ("Valhi"), NL Industries,
Inc. ("NL"), and Tremont Corporation ("Tremont") and their present principal
occupations are set forth below. Except as otherwise indicated, the business
address of each such person is 5430 LBJ Freeway, Suite 1700, Dallas, Texas
75240.
Name Present Principal Occupation
Kirby C. Adams Vice President of Tremont.
1999 Broadway, Suite 4300,
Denver, Colorado 80202.
Susan E. Alderton Vice President and Treasurer of NL;
Director of Tremont. 70 East 55th
Street, 8th Floor, New York,
New York 10022.
Eugene K. Anderson Vice President of Contran, Dixie
Holding, National, NOA and VGI.
Arthur H. Bilger Director of Valhi; Principal of
Lion Advisors, L.P. and Apollo
Advisors, L.P. (investment-related
activities). 1999 Avenue of the
Stars, Suite 1900, Los Angeles,
California 90067.
Richard J. Boushka Director of Tremont; Principal of
Boushka Properties (private
investment firm). 7701 East
Kellogg, Suite 650, Wichita, Kansas
67207.
F. Murlyn Broussard Treasurer of Southwest. 402 Canal
Street, Houma, Louisiana 70360.
Joseph S. Compofelice Vice President and Chief Financial
Officer of NL and Tremont.
3000 No. Sam Houston Parkway East,
Houston, Texas 77032.
Norman S. Edelcup Director of Valhi; Chairman of the
Board of Item Processing of
America, Inc. (processing service
bureau). 5190 N.W. 167th Street,
Suite 300, Miami, Florida 33014.
Robert J. Frame Director of Valhi; Professor of
Finance, Emeritus, at the Cox
School of Business, Southern
Methodist University; President of
Frame Financial Group, Inc.
(registered broker/dealer and a
member of the Chicago Board Options
Exchange). 17218 Preston Road,
Suite 421, Dallas, Texas 75252.
David B. Garten Vice President, Secretary and
General Counsel of NL. 3000 North
Sam Houston Parkway East, Houston,
Texas 77032.
William J. Lindquist Vice President and Tax Director of
Contran, Dixie Rice, Dixie Holding,
National, NOA, Southwest, VGI and
Valhi.
Andrew McCollam, Jr. Director of Dixie Rice; President
and Director of Southwest; Private
Investor. 402 Canal Street, Houma,
Louisiana 70360.
J. Landis Martin Director, President and Chief
Executive Officer of NL; Director,
Chairman of the Board, President
and Chief Executive Officer of
Tremont. 3000 No. Sam Houston
Parkway East, Houston, Texas 77032.
Harold M. Mire Vice President and General Manager
of Dixie Rice and Southwest.
600 Pasquiere Street,
Gueydan, Louisiana 70542.
J. Thomas Montgomery, Jr.
Contran, Dixie Holding, National,
NOA, Southwest, VGI and Valhi;
Vice President of Dixie Rice.
Robert E. Musgraves General Counsel and Secretary of
Tremont. 1999 Broadway,
Suite 4300, Denver, Colorado 80202.
Dennis G. Newkirk Vice President and Controller of
NL. 3000 No. Sam Houston Parkway
East, Houston, Texas 77032.
Kenneth R. Peak Director of NL; President of Peak
Energy Advisors, Inc. (consulting).
2702 Albans, Houston, Texas 77005.
Douglas M. Simmons Vice President of Contran.
Glenn R. Simmons Vice Chairman of the Board and
Director of Contran, Dixie Holding,
National, NOA, VGI and Valhi;
Director of NL and Tremont;
Executive Vice President and
Director of Dixie Rice and
Southwest; Chairman of the Board
and Chief Executive Officer of
the Company; (steel rod and wire
products manufacturer).
Harold C. Simmons Chairman of the Board, Chief
Executive Officer and Director of
Contran, Dixie Rice, Dixie Holding,
National, NOA, Southwest, VGI and
Valhi; Chairman of the Board and a
Director of NL; Director of
Tremont.
Robert W. Singer Vice President of Contran and
Valhi; President and Chief
Operating Officer of the Company.
Allen H. Smith President and Director of Dixie
Rice. 600 Pasquiere Street,
Gueydan, Louisiana 70542.
Richard A. Smith Treasurer of Dixie Rice.
600 Pasquiere Street, Gueydan,
Louisiana 70542.
Michael A. Snetzer President and Director of Contran,
Dixie Holding, National, NOA, VGI
and Valhi; Director of Dixie Rice,
NL and Tremont.
General Thomas P. Stafford Director of Tremont; Co-founder of
Stafford, Burke and Hecker, Inc.
(consulting); Chairman of the Board
of Omega Watch Corporation of
America (watch manufacturer). 1006
Cameron, Alexandria,
Virginia 22314.
Avy H. Stein Director of Tremont; Managing
Director of Continental Equity
Capital Corporation and Continental
Illinois Venture Corporation
(investment funds). 231 South
La Salle, Chicago, Illinois 60697.
William C. Timm Vice President-Finance and
Administration of Contran, Dixie
Rice, Southwest, Dixie Holding,
National, NOA, VGI and Valhi.
J. Walter Tucker, Jr. Director of Valhi; President,
Treasurer and Director of Tucker &
Branham, Inc. (mortgage banking,
insurance and real estate); Vice
Chairman of the Board and
Director of the Company.
Mark A. Wallace Vice President and Controller of
Tremont. 1999 Broadway,
Suite 4300, Denver, Colorado 80202.
Steven L. Watson Vice President and Secretary of
Contran, Dixie Rice, Dixie Holding,
National, NOA, Southwest, VGI and
Valhi.
Lawrence A. Wigdor Executive Vice President and
Director of NL. 3000 North Sam
Houston Parkway East, Houston,
Texas 77032.
Elmo R. Zumwalt, Jr. Director of NL; President of
Admiral Zumwalt & Consultants, Inc.
(consulting). 1500 Wilson
Boulevard, Arlington, Virginia
22209.
October 31, 1991
Contran Corporation
Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
Attention: Mr. William C. Timm, Vice President-Finance
Re: Letter Agreement
Ladies and Gentlemen:
BANQUE PARIBAS HOUSTON AGENCY ("Paribas"), SOCIETE GENERALE, SOUTHWEST
AGENCY ("SG") and BANQUE PARIBAS HOUSTON AGENCY as Agent for Paribas and SG
("Agent") (Paribas and SG, together with their successors and assigns, are
hereinafter individually called a "Bank" and collectively called "Banks") are
pleased to present the following terms and conditions for a line of credit and
letter of credit facility (the "Facility") to be extended to CONTRAN CORPORATION
("Borrower").
Borrower, Paribas, SG and Agent hereby agree to the following terms and
conditions with respect to the Facility:
Borrower: Contran Corporation.
Banks: Paribas and SG and their successors and assigns.
Agent: Paribas will act as Agent for Banks and, in such capacity,
will (a) make all advances of loans to Borrower under the
Facility ("Loans") upon its receipt of funds therefor from
Banks, and (b) receive all payments of principal, interest
and fees related to the Facility for the benefit of and
distribution to Banks as appropriate. With respect to each
Loan, each Bank shall, not later than 10:00 a.m., Houston,
Texas time on the date such Loan is to be made available to
Borrower, make available its pro rata share of the requested
Loan, in immediately available funds, to Agent at Agent's
principal office in Houston, Texas. Unless Agent shall have
received written notice from a Bank prior to the date of any
requested Loan that such Bank will not make available to
Agent such Bank's pro rata share of such Loan, Agent may
assume that such Bank has made such share available to Agent
on the date of such requested Loan and Agent may (but shall
not be obligated to), in reliance upon such assumption, make
available to Borrower on such date a corresponding amount.
If and to the extent that such Bank shall not have made its
pro rata share thereof available to Agent, such Bank and
Borrower severally agree to pay to Agent, immediately upon
demand, such corresponding amount, together with interest
thereon for each day from the date of advance by Agent until
repaid to Agent at (A) with respect to Borrower, the Base
Rate and (B) with respect to such Bank, the weighted average
of rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal
funds brokers, as published or quoted on the next succeeding
business day by the Federal Reserve Bank of New York (the
"Federal Funds Rate"). Before making any demand on Borrower
pursuant to the immediately preceding sentence, Agent agrees
with Borrower that Agent will make demand on such Bank
pursuant to the immediately preceding sentence. If (and
only if) such Bank shall pay to Agent such corresponding
amount, such amount shall constitute such Bank's share of
the Loans for purposes of this Agreement.
Facility: $20,000,000 (the "Committed Amount") aggregate committed
line of credit for loans (the "Loans") and letters of credit
(the "Letters of Credit"), subject to the Advance Rate (as
hereinafter defined) and the other terms and conditions of
this Agreement and the other Loan Papers (as hereinafter
defined). 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.
Letter of Credit
Sublimit: 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.
Conditions
Precedent: Banks' obligations to make each Loan and Paribas'
obligation to issue each Letter of Credit under this
Agreement shall be subject to the following conditions
precedent:
(a) no Event of Default (as hereinafter defined), 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 continuing or would result
from the making of the requested Loan or issuance of
the requested Letter of Credit;
(b) all representations and warranties of Borrower
contained in the Loan Papers shall be true and correct
in all material respects with the same force and effect
as though made on and again as of the date of the
proposed Loan or proposed issuance of a Letter of
Credit, except to the extent that such representations
or warranties expressly relate to an earlier date;
(c) all covenants and agreements to have been complied with
and performed by Borrower on or before the date of such
proposed Loan or issuance of a Letter of Credit shall
have been fully complied with and performed to the
reasonable satisfaction of Required Banks (as
hereinafter defined);
(d) with respect to a requested Loan bearing interest with
reference to the LIBOR Rate (as hereinafter defined) (a
"LIBOR Loan"), Borrower has requested such Loan from
Agent (and Agent has promptly thereafter notified Banks
of such request) at least three (3) LIBOR Business Days
(as such term is defined in the Promissory Notes, as
hereinafter defined) prior to the date such Loan is to
be made, specifying the amount of such Loan and the
LIBOR Interest Period (as defined in the Promissory
Notes) to be applicable thereto; and with respect to a
Loan bearing interest with reference to the Base Rate
(as hereinafter defined) (a "Base Rate Loan"), Borrower
has requested such Loan from Agent (and Agent has
promptly thereafter notified Banks of such request) at
least one (1) business day prior to the date such Loan
is to be made, specifying the amount of such Loan; and
(e) with respect to a requested Letter of Credit, Borrower
has delivered to Agent a Letter of Credit Application
(as described herein) with respect thereto at least
three (3) business days prior to the date such Letter
of Credit is to be issued.
Issuer of Letters
of Credit: Paribas shall be the issuer of the Letters of Credit;
provided, however, that:
(a) immediately upon the issuance of any Letter of Credit,
Paribas shall be deemed to have sold to each other
Bank, and each other Bank shall be deemed
unconditionally and irrevocably to have purchased from
Paribas, without recourse or warranty, an undivided
interest and participation, the extent of such other
Bank's pro rata share (based upon Banks' respective
commitments under the Facility), in such Letter of
Credit, each drawing thereunder, the obligations of
Borrower with respect thereto and the security
therefor; upon any change in the pro rata share of any
Bank which may hereafter occur, it is agreed that, with
respect to all Letters of Credit then outstanding,
there shall be an automatic adjustment to the
participation hereby created to reflect the new pro
rata share of the assigning and assignee Banks; any
action taken or omitted by Paribas under or in
connection with a Letter of Credit, if taken or omitted
in the absence of gross negligence or willful
misconduct, shall not create any liability for Paribas;
and
(b) in the event Paribas makes any payment under any Letter
of Credit and Borrower shall not have promptly
reimbursed such amount in full to Paribas pursuant to
the Letter of Credit Application relating thereto or
otherwise, Paribas shall promptly so notify each other
Bank of such failure, whereupon each other Bank shall
promptly and unconditionally pay to Paribas the amount
of such other's Bank's pro rata share of such
unreimbursed payment in immediately available funds;
all advances made by Paribas and any other Bank
directly or indirectly against drafts on any Letter of
Credit shall be deemed to be Loans under the Facility,
and shall bear interest with reference to the Base
Rate.
Letter of Credit
Application: Paribas shall issue Letters of Credit for the account
of Borrower under the Facility after receipt of a
Letter of Credit Application (which shall include,
without limitation, a reimbursement agreement in the
event that amounts are funded by Paribas under any
Letter of Credit) in form and substance reasonably
satisfactory to Paribas, which Letter of Credit
Application shall be appropriately completed, shall
specify all information called for therein (including,
without limitation, the exact terms of the proposed
Letter of Credit which shall be in form and substance
satisfactory to Paribas) and shall be executed by
Borrower.
Purpose: Borrower shall use the Loans to refinance existing debt, to
purchase margin stock and for other general corporate
purposes. Borrower shall use the Letters of Credit to
support self insurance programs and workmen's compensation
claims.
Maturity Date: October 31, 1992 (the "Maturity Date"), subject to
acceleration upon the occurrence of an Event of Default.
Security: Banks shall have a perfected first priority security
interest in at least (a) 2,971,233 shares of common stock of
Keystone Consolidated Industries, Inc. ("Keystone") and (b)
2,258,369 shares of common stock of Baroid Corporation
("Baroid"). 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. Borrower shall cause
the Baroid shares to be transferred to Morgan Guaranty Trust
Co. of New York Custodial Account No. 38573 for the account
of Banque Paribas, New York Branch, as agent for Agent, and
to thereby pledge the Baroid shares to Banks as 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 Baroid
which Banks hereby agree, in advance, are acceptable
collateral.
Advance Rate: The advance rate for the making of Loans and issuance of
Letters of Credit (the "Advance Rate") may not exceed 49% of
the then current market value of the marketable securities
pledged to Banks in which Banks have a perfected, first
priority security interest ("Collateral"). For purposes of
this Agreement, the current market value of marketable
securities shall, as of the date of each determination
thereof, be based upon the most recent closing price for
such securities on the relevant national securities exchange
in New York (or, if any such security is not traded on an
exchange in New York, the place where such security is so
traded); in the event of any conflict, the most recent
closing price on the New York Stock Exchange shall control.
Collateral Value
Maintenance: Should the aggregate outstanding credit at any time
under the Facility (i.e., the aggregate of the
outstanding principal amount of the Loans plus the
amount available for drawing under outstanding Letters
of Credit) exceed 49% of the then current market value
of the Collateral, Borrower shall either (a) repay the
Loans to the extent of such excess, or (b) pledge to
Banks additional collateral acceptable to Banks so that
the aggregate outstanding credit at any time under the
Facility shall not exceed 49% of the then current
market value of the Collateral.
Compliance with
Regulation U;
Withdrawal or
Substitution of
Collateral; Borrower and Banks will strictly comply at all times
with the provisions of Regulation U of the Board of
Governors of the Federal Reserve System, as from time
to time revised, amended or supplemented. At the time
of the making of any Loan or issuance of any Letter of
Credit under this Agreement, and after giving effect
thereto, the aggregate amount of (a) principal of all
Loans then outstanding plus (b) the amount available
for funding under outstanding Letters of Credit, may
not exceed forty-nine percent (49%) of the then current
market value of all margin stock Collateral. If at any
time Borrower desires to withdraw or substitute
Collateral, Borrower may do so if but only if (i) any
Collateral to be substituted is margin stock Collateral
acceptable to Banks and (ii) after giving effect to any
such withdrawal or substitution, the aggregate amount
of (A) principal of all Loans then outstanding plus (B)
the amount available for funding under outstanding
Letters of Credit, does not exceed forty-nine percent
(49%) of the then current value of the margin stock
Collateral pledged to Banks.
Borrowing Rates: Borrower's option of Base Rate (as defined in the
Promissory Notes), or 30, 60 or 90-day reserve adjusted
Libor + 1-3/4% (the "LIBOR Rate"). Agent shall, in a
reasonably prompt fashion, notify Borrower and Banks of
the LIBOR Rate applicable to any Loan for a particular
interest period after the determination thereof is
made. Interest for LIBOR Loans shall be calculated on
the basis of a 360 day year, and actual days elapsed.
Except as provided in the immediately preceding
sentence, interest and fees shall be calculated on the
basis of a 365 or 366 day year, as the case may be, and
actual days elapsed. Interest shall be payable
quarterly, except that interest for Libor Loans shall
be payable on the last day of each interest period.
Commitment Fee: Borrower shall pay to Agent, on behalf of Banks, a
commitment fee in the amount of 1/2% per annum on the
average daily unused and available commitments, payable
quarterly in arrears on the last day of each calendar
quarter. (For purposes hereof, the unfunded amount
under outstanding Letters of Credit shall be deemed to
be a "used" portion of the commitments.)
Letter of Credit Fee: Borrower shall pay to Agent, on behalf of Banks and for
the period and from the date of issuance of each Letter
of Credit until the expiration or termination date
thereof, a Letter of Credit fee in the amount of 1% per
annum of the original face amount (with respect to the
initial fee) or undrawn amount (with respect to
subsequent fees) thereof, as the case may be at the
time of payment, payable upon issuance and quarterly
thereafter in advance. In addition, Borrower shall pay
to Paribas, for the period from the date of issuance of
each Letter of Credit until the expiration or
termination date thereof, a Letter of Credit "fronting
fee" in the amount of 1/8% per annum of the original
face amount (with respect to the initial fee) or
undrawn amount (with respect to subsequent fees)
thereof, as the case may be at the time of payment,
payable upon issuance and quarterly thereafter in
advance.
Covenants: Borrower hereby covenants and agrees with Banks and
Agent that, unless and until all indebtedness,
liabilities and obligations of Borrower under the Loan
Papers are paid and performed in full and all
commitments of Banks under the Loan Papers are
terminated, Borrower shall:
(a) comply in all material respects with all applicable
laws, rules and regulations, including, without
limitation, ERISA and all environmental laws;
(b) ensure that Harold Simmons, individually and/or as
trustee for a trust established by him for the benefit
of his children and grandchildren, shall continue to
own or control at least 51% of the voting shares of
Borrower (Banks understand that Mr. Simmons may
reorganize his current ownership and control of
Borrower, subject to such requirement);
(c) not allow or permit to exist on or with respect to any
Collateral any lien, security interest or other
encumbrance except for the security interest in favor
of Banks with respect to the Facility;
(d) not sell all or substantially all of its assets except
for fair market value, and not merge, consolidate or
reorganize unless Borrower is the surviving entity,
except with the prior written consent of Banks;
(e) notify Agent, in a reasonably prompt fashion, of the
occurrence of an Event of Default or other occurrence
or event which, with the giving of notice or lapse of
time, or both, would become an Event of Default; and
(f) provide Agent and Banks with such information as Agent
or any Bank may reasonably request from time to time.
Events of Default: "Event of Default" or "Events of Default" shall mean
the existence of occurrence of any one or more of the
following circumstances or events:
(a) Borrower shall fail to make any payment, when due (by
acceleration or otherwise), of principal on any
Indebtedness (as such term is defined in the Security
Agreement), including without limitation, any failure
to make any reimbursement in respect of any Letter of
Credit or similar obligation;
(b) any failure of Borrower to observe or perform any of
the terms or provisions of this Agreement (other than
those regarding payment of principal which are governed
by clause (a) immediately preceding), the Promissory
Notes, the Security Agreement or the other Loan Papers,
including without limitation, the failure of Borrower
to pay any interest, fees, costs or expenses hereunder
or thereunder when due, and such failure shall continue
for a period of five (5) days following Borrower's
receipt of notice thereof from Agent or any Bank;
(c) any representation, warranty or other statement made by
Borrower in this Agreement, the Security Agreement or
the other Loan Papers is false, misleading or incorrect
in any material respect as of the date made;
(d) the levy of any attachment, execution or other process
against (i) Borrower if the same is likely to have a
material adverse effect, (ii) all or any portion of the
Collateral or (iii) any substantial portion of the
other assets or properties of Borrower;
(e) the appointment of a receiver for Borrower or any
material portion of its property or assets;
(f) the insolvency, failure in business, inability to pay
debts as they become due, general assignment for the
benefit of creditors, the filing of any petition in
bankruptcy or any similar proceeding or for relief
under the provisions of any bankruptcy statute, of, by
or against Borrower;
(g) a material adverse change shall occur in the financial
condition or operations of Borrower, and any such
change shall continue for a period of five (5) days
following Borrower's receipt of notice thereof from
Agent or any Bank; or
(h) any default by Borrower under any agreement involving
the borrowing of money or the advance of credit
aggregating $10,000,000 or more in amount (exclusive of
the Loans and Letters of Credit under the Facility),
and any such default shall continue for a period of
five (5) days following Borrower's receipt of notice
thereof from Agent or any Bank.
Remedies: (a) Agent and Banks shall have all rights and remedies as
may be available under applicable law, as well as all
rights and remedies set forth in this Agreement, the
Security Agreement, the Promissory Notes and the other
Loan Papers. Agent may, and Agent shall if so
requested by Required Banks, exercise or cause to be
exercised any one or more of such rights and remedies
in the name of Agent and/or any Bank, as Agent may from
time to time determine. As between or among Agent and
Banks, no Bank shall exercise any right or remedy with
respect to the Collateral except with the consent of
Agent as provided in the immediately preceding
sentence.
(b) In the event of the occurrence of an Event of Default
specified in clause (f) of the "Event(s) of Default"
section of this Agreement above, all unpaid
Indebtedness shall immediately, and concurrently
therewith, become due and payable in full and the
commitments hereunder shall immediately, and
concurrently therewith, terminate, without any action
or notification of any kind required by Agent or any
Bank, including, without limitation, presentment,
demand, protest or notice of protest, dishonor, notice
of intention to accelerate or notice of acceleration,
all of which are hereby expressly waived by Borrower.
Indemnification: By executing a copy of this Agreement, Borrower agrees
(regardless of whether any Loans are made or Letters of
Credit are issued hereunder) to indemnify and hold
harmless Agent, each Bank and each director, officer,
employee and affiliate of Agent or any Bank from and
against any and all actions, suits, proceedings
(including any investigations or inquiries), claims,
losses, damages, liabilities or expenses of any kind or
nature whatsoever (but excluding consequential losses)
which may be incurred by or asserted against or involve
Agent or any Bank or any such director, officer,
employee or affiliate, as a result of or arising out
of or in any way related to the transactions described
in this Agreement, and, upon demand by Agent or any
Bank, pay or reimburse Agent or any Bank or any such
director, officer, employee or affiliate for any
reasonable out-of-pocket legal or other such expenses
incurred by such person or entity in connection with
investigating, defending or preparing to defend any
such action, suit, proceeding (including any inquiry or
investigation) or claim, except for any such claims,
damages or liabilities to the extent the same are
attributable to the willful malfeasance or gross
negligence of the person or entity seeking to be
indemnified. Except with respect to Agent as provided
below, Borrower shall not be obligated to provide any
indemnification hereunder for losses, damages,
liabilities or expenses relating to any actions, suits,
proceedings or claims between or among Banks or between
or among Banks and Agent; provided, however, that Agent
shall be so indemnified therefor hereunder when acting
in its capacity as Agent. This provision shall survive
the termination of this Agreement and the repayment of
the Loans and termination of the Letters of Credit for
a period of four (4) years after the latest thereof to
occur.
Special Provisions
Regarding LIBOR Loans: (a) Borrower agrees to indemnify and hold harmless
each Bank from and against any LIBOR Consequential
Loss. Amounts to be indemnified hereunder by
Borrower shall be due and payable by Borrower
within ten (10) days of demand therefor by the
applicable Bank. "LIBOR Consequential Loss" means
such amount or amounts as shall, in the reasonable
judgment of any Bank, compensate such Bank for any
loss, cost or expense incurred by such Bank as a
result of (i) any payment or prepayment of any
portion of any LIBOR Loan on a date other than the
last day of the interest period applicable
thereto, (ii) the conversion of the rate of
interest on any LIBOR Loan from the LIBOR Rate to
another rate of interest available hereunder
(subject to the provisions of this Agreement
applicable to the selection of any such interest
rate) with respect to any portion of the LIBOR
Loan on a date other than the last day of the
interest period applicable thereto, (iii) the
failure to borrow any requested LIBOR Loan after
request therefor or the rescinding of a notice of
a conversion from another interest rate to the
LIBOR Rate prior to the commencement of the
interest period, or (iv) the failure of all or any
portion of a LIBOR Loan to be made under this
Agreement due to the action or inaction of
Borrower, including Borrower's failure to satisfy
any condition precedent to the making of any LIBOR
Loan.
(b) If at any time any Bank reasonably determines that
deposits in Dollars in the appropriate amount for the
appropriate period are not being offered in the London
interbank market, or that adequate and reasonable means
do not exist for ascertaining the LIBOR Rate, or that
it is unlawful or not feasible for such Bank to make or
continue to maintain all or any portion of a LIBOR
Loan, then, upon notice to Borrower and Agent, the
LIBOR Loan or proposed LIBOR Loan or portion thereof so
affected shall be automatically converted to or be a
Base Rate Loan.
Representations
and Warranties: Borrower hereby represents and warrants to Banks and
Agent as follows:
(a) no proceeding for the amendment of the Certificate of
Incorporation of Borrower has been taken or is pending
or contemplated, and no proceeding for the merger,
consolidation, reorganization (except for a
reorganization of Mr. Simmons' current ownership and
control of Borrower permitted in clause (b) of the
"Covenants" section of this Agreement), liquidation or
dissolution, or the sale of all or a substantial part
of the assets or business, of Borrower has been taken
or is pending or contemplated;
(b) no shares of common stock of Baroid constituting a part
of the Collateral are, and no shares of common stock of
Baroid which may be subsequently pledged as Collateral
will be, "restricted securities" as such term is used
or defined in paragraph (a) (3) of Rule 144 promulgated
under the Securities Act of 1933, as amended ("Rule
144");
(c) Borrower acquired the shares of common stock of Baroid
constituting a part of the Collateral from Valhi, Inc.
("Valhi") on June 28, 1991, at a time when Valhi was
not an "affiliate", as such term is used or defined in
paragraph (a) (1) of Rule 144, of Baroid; and each of
Borrower and Valhi fully paid the price of the Baroid
shares at the time it acquired the Baroid 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
Baroid shares; and
(d) 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, either (i) are not, and will not be,
"restricted securities" as such term is used or defined
in paragraph (a)(3) of Rule 144, or (ii) 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.
Governing Law: State of Texas; provided, however, that Borrower, Agent and
Banks agree that, except for Section 15.10(b) thereof, the
provisions of Art. 5069-15.01 et seq. of the Revised Civil
Statutes of Texas, 1925, as amended (regulating certain
revolving credit loans and revolving tri-party accounts)
shall not apply to the Loans, this Agreement, the Promissory
Notes or the other Loan Papers.
Fees and Expenses of
Counsel to Agent
and Banks; Enforcement
and Collection Costs
and Expenses: Borrower agrees to pay the reasonable fees and out-of-pocket
expenses of counsel to Agent and Paribas in connection with
the establishment of this Facility. In addition, Agent
reserves the right to employ outside counsel for Agent
and/or Banks subsequent to the establishment of this
Facility if the need so arises in the good faith opinion of
Agent, whereupon the reasonable fees and expenses related
thereto shall be paid by Borrower; provided, however, that
Borrower shall not be obligated to pay the fees and expenses
of more than one law firm in connection therewith and such
fees and expenses for which Borrower is obligated must
relate to amendments of the Loan Papers, waivers under the
Loan Papers and/or the Collateral. Whether or not any such
counsel is employed, and notwithstanding the foregoing,
Borrower shall pay all reasonable out-of-pocket costs and
expenses of Agent and/or any Bank (including, without
limitation, fees and expenses of their counsel) relating to
(a) enforcing the rights and remedies of Agent and each Bank
and (b) collecting the Loans and other indebtedness of
Borrower under this Agreement, the Promissory Notes, the
Security Agreement and the other Loan Papers.
Other Expenses: By executing a copy of this Agreement, Borrower agrees
(regardless of whether any Loans are made or Letters of
Credit are issued hereunder) to pay all reasonable
out-of-pocket costs and expenses of Agent and Banks
incurred to establish this Facility, the cost of any
tax, duty or other similar assessment of reserve,
special deposit or other requirements incurred as a
result of this Facility and resulting from the
introduction or implementation of, or any change in, or
compliance with, any law, rule or regulation, or
interpretation thereof, whether such cost be direct or
indirect, and including, without limitation, those
costs or the like that have the effect of reducing the
return on any Bank's capital to a level below that
which such Bank would have achieved but for such
introduction, implementation, change or compliance, but
excluding, however, any such tax or imposition imposed
on the income of Banks or capital or franchise taxes
imposed by the jurisdiction under the laws of which any
Bank is organized or in which it maintains a place of
business. Such payments shall be in addition to the
fees otherwise provided for herein.
Other Terms and
Provisions: 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 as agent
for Banks (the "Security Agreement"), (b) Promissory
Note dated October 31, 1991, in the original principal
amount of $10,000,000 made by Borrower payable to the
order of Paribas (the "Paribas Note"), (c) Promissory
Note dated October 31, 1991, in the original principal
amount of $10,000,000 made by Borrower payable to the
order of SG (the "SG Note") (the Paribas Note and the
SG Note, together with all renewals, extensions,
amendments and replacements thereof from time to time,
are hereinafter collectively called the "Promissory
Notes"), and (d) all other agreements, documents and
instruments executed or delivered in connection
herewith (this Agreement, the Security Agreement, the
Promissory Notes and such other agreements, documents
and instruments 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. In the event of any
direct conflict between the terms and provisions of
this Agreement and the terms and provisions of any
Promissory Note, the terms and provisions of such
Promissory Note shall control.
Agency Matters: The parties hereto agree that Paribas, in its capacity
as Agent hereunder, shall act as agent for Paribas, SG
and the other Banks hereunder for purposes of
coordinating advances, issuing Letters of Credit,
receiving payments and the holding of Collateral and
for whatever other purposes as to which Banks may
mutually agree; provided, however, that (a) Paribas
(individually and/or as Agent) shall not be a fiduciary
or trustee of any kind or nature for the benefit of
Borrower, SG or any other Bank and shall not have any
fiduciary duty or trust relationship of any kind or
nature to or with Borrower, SG or any other Bank; and
(b) Paribas (individually and/or as Agent) shall not
have any liability whatsoever to Borrower, SG or any
other Bank except as may result from Paribas' gross
negligence or willful misconduct. Each Bank has
performed its own credit analysis with respect to the
Facility, and no Bank is relying upon any
representation or warranty of Paribas in connection
therewith.
Pro Rata Share: Each Bank shall, subject to its rights of assignment
contained herein and the other terms and conditions
hereof, have a fifty percent (50%) interest in the
total commitment under this Facility, the Loans, the
Letters of Credit and the Collateral to be made or to
exist concurrently herewith and in the future. Banks'
obligations under this Agreement shall be several and
not joint, and Banks' obligations and rights with
respect to the Facility shall be pari passu except if
and to the extent that Banks may agree otherwise. Each
Bank agrees that if it shall, through the exercise of a
right of bankers' lien, setoff or counterclaim against
Borrower or otherwise, obtain payment in respect of any
indebtedness owing to such Bank as a result of which
the unpaid portion of its Loans is proportionately less
than the unpaid portion of the Loans of other Banks
(based upon the respective commitments of Banks), then
the benefits thereof shall be shared among Banks pro
rata and such adjustments shall be made from time to
time as shall be equitable to ensure such pro rata
treatment.
Counterparts: This Agreement may be executed in one or more
counterparts.
Amendment: This Agreement, the Promissory Notes, the Security
Agreement and the other Loan Papers may not be amended
without the prior written consent of Borrower and Banks
that, at the time of such amendment, hold or own, in
the aggregate, 66-2/3% or more of the sum of the
aggregate principal amount of all Loans then
outstanding plus the aggregate undrawn amount of all
Letters of Credit then outstanding, or, if no Loans or
Letters of Credit are then outstanding, 66-2/3% or more
of the aggregate commitments hereunder (which Banks are
herein called "Required Banks"); provided, however,
that, without the prior written consent of all Banks,
no amendment or waiver shall (a) change the principal
amount of, or extend the maturity of or any date for
the payment of any principal of or interest on, any
Loan or Letter of Credit, or waive or excuse any such
payment or any part thereof, or change the rate of
interest on any Loan or Letter of Credit, (b) change
any commitment or other obligations (if any) of any
Bank or the provisions of this section of this
Agreement, (c) waive any condition precedent to the
making of any Loan or the issuance of any Letter of
Credit, (d) authorize the acceptance of marketable
securities, other than shares of common stock of
Keystone and Baroid, as Collateral for purposes of
Borrower's compliance with the terms and provisions of
this Agreement, (e) change the amount or due date of
any fee payable to Agent or any Bank, or (f) increase
the amount of the aggregate commitments of Banks or,
without each Bank's consent, the commitment of such
Bank; provided, further, that no such amendment shall
change or otherwise affect the rights or duties of
Agent hereunder without the prior written consent of
Agent.
Assignment: Banks may (a) assign all or any portion of their
rights, interests and obligations herein and in the
Loans and Letters of Credit under this Facility to
other financial institutions, and (b) sell
participation interests herein and in the Loans and
Letters of Credit under this Facility, upon the giving
of written notice thereof to Borrower; provided,
however, that Paribas may not assign its obligation to
issue Letters of Credit in accordance with the terms
hereof without the prior consent of Borrower, which
consent shall not be unreasonably withheld. Upon any
assignment pursuant to clause (a) preceding, the
assigning Bank shall be relieved of all of its
obligations under this Agreement and the other Loan
Papers with respect to the rights, interests,
obligations, Loans and Letters of Credit so assigned,
and the assignee thereof shall become a Bank for
purposes of this Agreement and the other Loan Papers
and shall assume such obligations in full.
NO ORAL
AGREEMENTS: THIS WRITTEN AGREEMENT, TOGETHER WITH THE SECURITY
AGREEMENT, THE PROMISSORY NOTES AND THE OTHER LOAN PAPERS,
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 OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN BORROWER AND AGENT OR ANY BANK.
Application of
Initial Advance: Borrower hereby directs and authorizes Agent to apply
all or a portion (as appropriate) of the initial
advance of the Loans made pursuant to this Agreement to
pay in full all principal and accrued interest owed by
Borrower to Paribas and Citibank, N.A. with respect to
loans made to Borrower pursuant to that certain letter
agreement dated August 3, 1990.
Written Notices: All notices required or permitted to be given under
this Agreement and the other Loan Papers shall be in
writing (unless Agent shall agree otherwise).
Certain Letters of
Credit: The letters of credit issued by Paribas described on Exhibit
A attached hereto shall be deemed to be Letters of Credit
issued pursuant to this Agreement.
If you are in agreement with all of the terms and conditions stated herein,
please indicate by signing the attached signature page whereupon this Agreement
shall become effective as of the date first above written.
Sincerely,
BANQUE PARIBAS HOUSTON AGENCY,
Individually and as Agent
By:
Name:
Title:
By:
Name:
Title:
AGREED AND ACCEPTED:
CONTRAN CORPORATION
By:
Name: William C. Timm
Title: Vice President - Finance
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
Name:
Title:
December 17, 1991
Contran Corporation
Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
Attention: Mr. William C. Timm,
Vice President-Finance
Re: First 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 and (b) that certain Security
Agreement dated October 31, 1991, executed by Borrower to and in favor of Agent,
Paribas and SG. Borrower, Paribas, SG and Agent desire to amend such Letter
Agreement and 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 First
Amendment to Letter Agreement and Security Agreement (this "Amendment"), shall
mean the Letter Agreement referred to hereinabove, as amended hereby. The term
"Security Agreement", as used in this Amendment, shall mean the Security
Agreement referred to hereinabove, as amended hereby. Capitalized terms used in
this Amendment, if and to the extent not otherwise defined in this Amendment,
shall have the same meanings in this Amendment as in the Letter Agreement;
provided, however, that capitalized terms used in amended terms and provisions
of the Security Agreement shall have the same meanings as in the Security
Agreement.
2. Amendments to the Letter Agreement.
(a) Facility. The first sentence of the section of the Letter Agreement
entitled "Facility" is hereby amended to read in its entirety as follows:
"$27,000,000 (the Committed Amount ) aggregate committed
line of credit for loans (the Loans ) and letters of credit
(the Letters of Credit ), subject to the Advance Rate (as
hereinafter defined) and the other terms and conditions of
this Agreement and the other Loan Papers (as hereinafter
defined)."
(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 (as amended, the Security
Agreement ), (b) Amended and Restated Promissory Note dated
December 17, 1991, in the original principal amount of
$13,500,000 made by Borrower payable to the order of Paribas
(the Paribas Note ), (c) Amended and Restated Promissory
Note dated December 17, 1991, in the original principal
amount of $13,500,000 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 the Security Agreement. The first sentence of
Subparagraph (f) of Paragraph 21 of the Security Agreement (see Addendum 2 to
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 December
17, 1991, in the original principal amount of $13,500,000.00
made by the undersigned payable to the order of Banque
Paribas Houston Agency, (iii) that certain Amended and
Restated Promissory Note dated December 17, 1991, in the
original principal amount of $13,500,000.00 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 $13,500,000 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 to reflect the increase in the Committed Amount evidenced by 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 & Gilchrist, 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:
Name: Peter Toal
Title: Vice President
By:
Name: Pierre-Jean de Filippis
Title: General Manager
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
Name: Matthew C. Flanigan
Title: Vice President and Manager
AGREED AND ACCEPTED:
CONTRAN CORPORATION
By:
Name: William C. Timm
Title: Vice President - Finance
October 31, 1992
Contran Corporation
Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
Attention: Mr. William C. Timm,
Vice President-Finance
Re: Second 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") and (c) that certain First Amendment to Letter Agreement
and Security Agreement dated March 17, 1991, by 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 Second
Amendment to Letter Agreement and Security Agreement (this "Amendment"), shall
mean the Letter Agreement referred to hereinabove, as amended hereby. The term
"Security Agreement", as used in this Amendment, shall mean the Security
Agreement referred to hereinabove, as amended hereby. Capitalized terms used in
this Amendment, if and to the extent not otherwise defined in this Amendment,
shall have the same meanings in this Amendment as in the Letter Agreement;
provided, however, that capitalized terms used in amended terms and provisions
of the Security Agreement shall have the same meanings as in the Security
Agreement.
2. Amendments to the Letter Agreement.
(a) Facility. The first sentence of the section of the Letter Agreement
entitled "Facility" is hereby amended to read in its entirety as follows:
"$18,000,000 (the Committed Amount ) aggregate committed
line of credit for loans (the Loans ) and letters of credit
(the Letters of Credit ), subject to the Advance Rate (as
hereinafter defined) and the other terms and conditions of
this Agreement and the other Loan Papers (as hereinafter
defined)."
(b) Letter of Credit Application. The section of the Letter Agreement
entitled "Letter of Credit Application" is hereby amended to read in its
entirety as follows:
"Paribas shall issue Letters of Credit for the account of
Borrower and/or Valmont Insurance Company ("Valmont") under
the Facility after receipt of an Application for Letter of
Credit, a Continuing Letter of Credit Agreement or similar
agreement in form and substance satisfactory to Paribas (the
"L/C Agreement"). Each L/C Agreement (a) shall contain,
without limitation, the reimbursement obligation of Borrower
in the event that any amounts are funded under any Letter of
Credit (which reimbursement obligation of Borrower shall be
required even with respect to Letters of Credit issued for
the account of Valmont), (b) shall be appropriately
completed, (c) shall specify all information called for
therein (including, without limitation, the exact terms of
the proposed Letter of Credit, which terms shall be in form
and substance satisfactory to Paribas), (d) shall be
executed by Borrower and (e) shall be deemed to constitute a
part of the Loan Papers. Furthermore, with respect to each
Letter of Credit and/or L/C Agreement which names Valmont as
customer or account party, Borrower also (in addition to
Valmont) shall be deemed to be the customer or account party
with respect thereto and, notwithstanding anything to the
contrary contained in such Letter of Credit or L/C
Agreement, Borrower shall be jointly and severally liable
for all reimbursement obligations and other indebtedness and
obligations with respect thereto."
(c) Maturity Date. The section of the Letter Agreement entitled "Maturity
Date" is hereby amended to read in its entirety as follows:
"October 30, 1993 (the Maturity Date ), subject to
acceleration upon the occurrence of an Event of Default."
(d) 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 2,971,233 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."
(e) 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 and that certain Second Amendment
to Letter Agreement and Security Agreement dated October 31,
1992, by and among Borrower, Banks and Agent (as amended,
the Security Agreement ), (b) Amended and Restated
Promissory Note dated October 31, 1992, 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, 1992, 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) 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) the 2,971,233 shares of common stock of
Keystone Consolidated Industries, Inc. ( Keystone )
previously delivered and/or concurrently herewith being
delivered to the Bank (the Keystone Shares );
(ii) any and all money, securities,
instruments and other property heretofore delivered or
which shall hereinafter 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 purpose whatever during the existence of this
Agreement, and whether held in a general or special
account or deposit or for safekeeping, or otherwise, to
the extent but only to the extent that such money,
securities, instruments and other property relate to or
constitute proceeds of the Keystone 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
(iii) any and all proceeds of the Keystone
Shares and of the money, securities, instruments and
other property referred to in clauses (i) and (ii)
preceding."
(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
31, 1992, 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, 1992, 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."
(c) Notice of Acknowledgment of Pledge. Subparagraph (i) of Paragraph 21
of the Security Agreement is hereby amended to read in its entirety as follows:
"(i) Intentionally Omitted."
(d) Valid Security Interest. Subparagraph (j) of Paragraph 21 of 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."
(e) Rule 144. Clause (i) of Subparagraph (k) of Paragraph 21 of the
Security Agreement is hereby amended by deleting the phrase "or the Baroid
Shares" immediately prior to the parenthetical in such clause.
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 to reflect the decrease in the Committed Amount evidenced by 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 & Gilchrist, 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) The amendment to the Letter Agreement contained in Paragraph 2(b) of
this Amendment shall be effective as of October 31, 1991.
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 or, to the extent provided in Paragraph 6(h)
of this Amendment, as of October 31, 1991.
Sincerely,
BANQUE PARIBAS HOUSTON AGENCY
Individually and as Agent
By:
Name: Bruce A. Cauley
Title: Deputy General Manager
By:
Name: Pierre-Jean de Filippis
Title: General Manager
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
Name: Matthew C. Flanigan
Title: Vice President and Manager
AGREED AND ACCEPTED:
CONTRAN CORPORATION
By:
Name: William C. Timm
Title: Vice President - Finance
October 31, 1993
Contran Corporation
Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
Attention: Mr. William C. Timm,
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,
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 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 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 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 the Security Agreement.
(a) Definition of Loan Papers. The first sentence of Subparagraph (f) of
Paragraph 21 of the Security Agreement is hereby amended to read in its entirety
as follows:
"The term Loan Papers , as used in this Agreement, shall
mean and refer to (i) the Letter Agreement, (ii) that
certain Amended and Restated Promissory Note dated October
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 31, 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 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 & Gilchrist, 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:
Name: Robert G. Shaw
Title: Vice President
By:
Name: Pierre-Jean de Filippis
Title: General Manager
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
Name: Matthew C. Flanigan
Title: Vice President and Manager
AGREED AND ACCEPTED:
CONTRAN CORPORATION
By:
Name: William C. Timm
Title: Vice President-Finance
