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EXHIBIT 10.34
AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment") is dated as of November 26, 1996 and made by and
between Congress Financial Corporation (Central) ("Lender") and Titanium Metals
Corporation ("Borrower").
R E C I T A L S:
WHEREAS, Lender and Borrower are parties to that certain
Amended and Restated Loan and Security Agreement, dated as of March 24, 1995
(as amended as of September 29, 1995, February 15, 1996, May 31, 1996 and
October 1, 1996, the "Loan Agreement"; capitalized terms used and not defined
herein shall have the meanings assigned to them in the Loan Agreement as
amended hereby);
WHEREAS, Borrower desires to issue 6-5/8% Convertible Junior
Subordinated Debentures due 2026 in an aggregate principal amount not to exceed
$207,474,300 pursuant to that certain Indenture, dated as of November 20, 1996,
by and between Borrower, as issuer, and The Chase Manhattan Bank, as trustee
(the "Debt Offering"); and
WHEREAS, Borrower and Lender desire to amend the Loan
Agreement to allow Borrower to accomplish the Debt Offering upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
Section 1. Amendment. Immediately upon the satisfaction of
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each of the conditions precedent set forth in Section 2 of this Amendment, the
Loan Agreement is hereby amended as follows:
(a) Section 9.9. Section 9.9 of the Loan Agreement is hereby
amended as follows:
i) Section 9.9 of the Loan Agreement is hereby
amended by deleting the word "and" that
immediately follows Section 9.9(e) and adding
the following new Sections 9.9(g) and 9.9(h)
immediately after Section 9.9(f) and before
the words "; provided that":
", (g) indebtedness evidenced by
Borrower's 6-5/8% Convertible Junior
Subordinated Debentures (the
"Subordinated Debentures") due 2026 in
an aggregate principal amount not to
exceed $207,474,300, issued pursuant
to that certain Indenture, dated as of
November 20, 1996, by and between
Borrower, as issuer, and The Chase
Manhattan Bank, as trustee (the
"Indenture"), the payment of which
such Subordinated Debentures is
subordinated in all respects to the
prior payment in full in cash of the
Obligations and (h) obligations under
that certain Convertible Preferred
Securities Guarantee Agreement, dated
as of November 20, 1996, by Borrower
and The Chase Manhattan Bank with
respect to those certain 6-5/8%
Convertible Preferred Securities,
Beneficial Unsecured Convertible
Securities (BUCS) in accordance with
the terms of the Indenture (as in
effect on November 26, 1996)";
ii) Subsection (v) of the proviso of Section 9.9
of the Loan Agreement is hereby amended by
deleting the "(e)" that appears therein and
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replacing it with "(h)"; and
iii) Subsection (vi) of the proviso of Section 9.9
of the Loan Agreement is hereby amended by
deleting the phrase "and (e)" that appears
therein and replacing it with the phrase ",
(e), (f), (g) and (h)".
(b) Section 9.10. Section 9.10(o) of the Loan Agreement and the
word "and" immediately preceding it are hereby deleted in their
entirety and replaced with the following Sections 9.10(o) and (p):
"; (o) creation of TIMET Capital Trust I, a statutory business
trust formed under the laws of the State of Delaware (the
"Trust"), pursuant to the terms of that certain Amended and
Restated Declaration of Trust of TIMET Capital Trust I, dated
as of November 20, 1996, by and among The Chase Manhattan
Bank, as property trustee, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as regular trustees, and Chase
Manhattan Bank (Delaware), as Delaware trustee, and Borrower,
as trust sponsor, and investments in the Trust contemplated by
the Indenture (as in effect on November 26, 1996); and (p)
additional investments after October 1, 1996 that do not
exceed $5,000,000 in the aggregate (including, without
limitation, guarantees of debt in excess of $1,300,000 of
Tisto to one or more of Tisto's existing shareholders).";
Section 2. Conditions to Effectiveness of Amendment. The effectiveness
of this Amendment is subject to the satisfaction of the following conditions
precedent:
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2.1 Documents.
(a) Amendment. Lender shall have received a duly
executed counterpart of this Amendment from Borrower.
(b) Consent from Guarantors. Lender shall have received
a duly executed counterpart to a consent to this Amendment
from each of Titanium Hearth Technologies, Inc., a Delaware
corporation, TIMET Castings Corporation, an Oregon
corporation, and TIMET Hearth Melting Corporation, a Colorado
corporation.
2.3. Consents, Licenses, Approval, etc. All consents, licenses and
approvals, if any, required in connection with the execution, delivery and
performance by the Borrower of this Amendment or the Loan Agreement, as amended
by this Amendment, or the validity or enforceability thereof, or in connection
with any of the transactions effected pursuant to this Amendment or the Loan
Agreement, as amended by this Amendment, shall be in full force and effect.
(a)
2.4. No Injunction. No law or regulation shall have been adopted, no
order, judgment or decree of any governmental authority shall have been issued,
and no litigation shall be pending or threatened, which in the reasonable
judgment of Lender would enjoin, prohibit or restrain, or impose or result in
the imposition of any material adverse condition upon, the execution, delivery
or performance by the Borrower of this Amendment or the Loan Agreement, as
amended by this Amendment.
Section 3. Representations and Warranties. In order to induce Lender to enter
into this Amendment, Borrower represents and warrants to Lender, upon the
effectiveness of this Amendment, which representations and warranties shall
survive the execution and delivery of this Amendment, that:
3.1. No Default; etc. No Event of Default and no event or condition
which, merely with notice or the passage of
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time or both, would constitute an Event of Default, has occurred and is
continuing after giving effect to this Amendment or would result from the
execution or delivery of this Amendment or the consummation of the transactions
contemplated hereby.
3.2. Corporate Power and Authority: Authorization. Borrower has the
corporate power and authority to execute and deliver this Amendment and to
carry out the terms and provisions of the Loan Agreement, as amended by this
Amendment, and the execution and delivery by Borrower of the Loan Agreement, as
amended by this Amendment, and the performance by Borrower of its obligations
hereunder and thereunder have been duly authorized by all requisite corporate
action by Borrower.
3.3. Execution and Delivery. Borrower has duly executed and
delivered this Amendment.
3.4 Enforceability. This Amendment and the Loan Agreement, as
amended by this Amendment, constitute the legal, valid and binding obligations
of Borrower, enforceable against Borrower in accordance with their respective
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' right generally, and by general principles of equity.
3.5. Representations and Warranties. All of the
representations and warranties contained in the Loan Agreement and in the
Financing Agreements (other than those which speak expressly only as of a
different date) are true and correct as of the date hereof after giving effect
to this Amendment, the transactions contemplated hereby. The parties hereto
acknowledge that Section 12 of the Information Certificate has not been revised
in connection with this Amendment to reflect changes that have occurred after
May 31, 1996.
Section 4. Miscellaneous.
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4.1 Effect; Ratification. The amendment set forth herein is
effective solely for the purposes set forth herein and shall be limited
precisely as written, and shall not be deemed to (i) be a consent to any
amendment, waiver or modification of any other term or condition of the Loan
Agreement or of any other Financing Agreement or (ii) prejudice any right or
rights that Lender may now have or may have in the future under or in
connection with the Loan Agreement or any other Financing Agreement. Each
reference in the Loan Agreement to "this Agreement," "herein," "hereof" and
words of like import and each reference in the other Financing Agreements to
the "Loan Agreement" shall mean the Loan Agreement as amended hereby. This
Amendment shall be construed in connection with and as part of the Loan
Agreement and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Loan Agreement and each other Financing Agreement,
except as herein amended or waived, are hereby ratified and confirmed and shall
remain in full force and effect.
4.2 Counterparts. This Amendment may be executed in any number of
counterparts, each such counterpart constituting an original but all together
one and the same instrument.
4.3 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
CONGRESS FINANCIAL CORPORATION (CENTRAL)
By:
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Title:
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TITANIUM METALS CORPORATION
By:
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Title:
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