Exhibit 10.11
AMENDED AND RESTATED PREFERRED UNIT REPURCHASE AGREEMENT
THIS AMENDED AND RESTATED PREFERRED UNIT REPURCHASE AGREEMENT (this
"Agreement") is dated as of December 30, 2002 between Contico International,
L.L.C., a Delaware limited liability company ("Contico"), Katy Industries, Inc.,
a Delaware corporation ("Katy") and Newcastle Industries, Inc., a Missouri
corporation ("Newcastle").
WHEREAS, Katy and Newcastle entered into the Members Agreement of Contico,
dated as of January 8, 1999 (as amended, the "Members Agreement") which provides
for the terms and conditions of the Preferred Units (as defined therein);
WHEREAS, on June 28, 2001, Contico repurchased 165 of its Preferred Units
from Newcastle pursuant to that certain Preferred Unit Repurchase Agreement,
dated as of March 28, 2001, as amended;
WHEREAS, the parties hereto entered into that certain Preferred Unit
Repurchase Agreement on October 17, 2002 (the "Original Agreement") whereby
Contico agreed to repurchase the remaining 164 Preferred Units of Contico owned
by Newcastle on or before December 31, 2002 upon the occurrence of certain
conditions precedent, including an amendment to Katy's credit agreement to
permit the transaction; and
WHEREAS, Katy requires additional time to complete the amendment to its
credit agreement allowing for the payment of the Consideration (as defined
below).
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, the parties hereto agree that the
Original Agreement is hereby amended and restated in its entirety as follows:
SECTION 1. Definitions.
Capitalized terms used herein and not described herein have the respective
meaning ascribed to them in the Members Agreement.
SECTION 2. Purchase and Sale of Preferred Units
On the Closing Date (as defined below), Newcastle shall tender to Contico,
Contico shall repurchase from Newcastle, and Katy shall cause Contico to
repurchase from Newcastle, 164 Preferred Units for a purchase price of $60,000
per Preferred Unit (that amount being equal to 60% of the stated value of such
units), plus an amount equal to the aggregate accrued but unpaid Priority Return
for each Preferred Unit through the Closing Date (collectively, the
"Consideration"). The Consideration shall be payable by Contico in cash by wire
transfer of immediately available funds. Notwithstanding
anything herein to the contrary, Newcastle shall not be entitled to receive and
neither Katy nor Contico shall be obligated to pay the Consideration unless and
until Katy has either (i) finalized the required amendment to its credit
agreement to permit payment of the Consideration or (ii) refinanced its primary
credit agreement with a new agreement that provides for payment of the
Consideration (the "Condition Precedent"). For purposes of this Agreement, the
term "Closing Date" shall mean that date which is ten (10) business days after
the satisfaction of the Condition Precedent; provided that, Katy and/or Contico
shall give Newcastle written notice that the Condition Precedent has been
satisfied within two (2) business days after such occurrence.
SECTION 3. Termination of Members Agreement.
The parties acknowledge that after consummation of this Agreement,
Newcastle shall no longer have any ownership interest in Contico and that the
Members Agreement shall, except where otherwise expressly set forth in the
Members Agreement, terminate and be of no further force or effect. Further,
Newcastle expressly acknowledges that after the Closing Date, Newcastle, and its
shareholders, shall no longer have any rights or obligations as a member under
the Amended and Restated Limited Liability Company Agreement of Contico
International, L.L.C., dated as of January 8, 1999; provided, however, that
Contico shall provide Newcastle (i) with such information as is required by
Section 8.4 of the Limited Liability Company Agreement to enable Newcastle to
file its income tax return for 2002 and 2003 and (ii) with such information as
Newcastle reasonably requests so that it may defend any tax audit, or reply to
requests for information, on tax returns previously filed.
SECTION 4. Termination
This Agreement and the obligations hereunder shall terminate on March 31,
2003 if the Condition Precedent has not been satisfied on or prior to such date.
[Signatures on the Following Page]
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IN WITNESS WHEREOF, Katy, Contico and Newcastle have caused this Agreement
to be duly executed as of the date first above written.
KATY INDUSTRIES, INC.
By:_______________________
Name: Xxxx Xxxxxxxxx
Title: Vice President
CONTICO INTERNATIONAL, L.L.C.
By:_______________________
Name: Xxxx Xxxxxxxxx
Title:
NEWCASTLE INDUSTRIES, INC.
By:_______________________
Name:
Title:
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