UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of the earliest event reported)
November 17, 2004
Kronos Worldwide, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 1-31763 76-0294959
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification
incorporation) No.)
5430 LBJ Freeway, Suite 1700 Dallas, Texas 75240-2697
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code
(972) 233-1700
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
Item No. Exhibit Index
---------- ----------------------------------------
10.1 First Amendment Agreement, dated September 3, 2004, Relating
to a Facility Agreement dated June 25, 2002 among Kronos
Titan GmbH, Kronos Europe S.A./N.V., Kronos Titan AS and
Titania A/S, as borrowers, Kronos Titan GmbH, Kronos Europe
S.A./N.V. and Kronos Norge AS, as guarantors, Kronos Denmark
ApS, as security provider, with Deutsche Bank Luxembourg
S.A., acting as agent.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Kronos Worldwide, Inc
(Registrant)
By: /s/ Gregory M. Swalwell
----------------------------
Gregory M. Swalwell
Vice President, Finance
and Chief Financial Officer
Date: November 17, 2004
Index of Exhibits
Item No. Exhibit Index
---------- ----------------------------------------
10.1 First Amendment Agreement, dated September 3, 2004, Relating
to a Facility Agreement dated June 25, 2002 among Kronos
Titan GmbH, Kronos Europe S.A./N.V., Kronos Titan AS and
Titania A/S, as borrowers, Kronos Titan GmbH, Kronos Europe
S.A./N.V. and Kronos Norge AS, as guarantors, Kronos Denmark
ApS, as security provider, with Deutsche Bank Luxembourg
S.A., acting as agent.
Dated 3 September 2004
Kronos Titan GmbH
KRONOS Europe S.A./N.V.
Kronos Titan AS
and
Titania AS
as Borrowers
Kronos Titan GmbH
KRONOS Europe S.A./N.V.
and
Kronos Norge AS
as Guarantors
Kronos Denmark aps
as security provider
with
Deutsche Bank Luxembourg S.a.
acting as Agent
---------------------------------------------------------------------------
FIRST amendment agreement
relating to a
facility agreement
dated 25 June 2002
---------------------------------------------------------------------------
THIS FIRST AMENDMENT AGREEMENT is dated 3 September 2004 (the "Agreement") and
is made between:
(1) Kronos Titan GmbH (formerly known as Kronos Titan GmbH & Co. oHG), a
limited liability company (Gesellschaft mit beschrankter Haftung) organised
under the laws of the Federal Republic of Germany, having its business
address at Peschstrasse 5, 51373 Leverkusen, Federal Republic of Germany,
which is registered in the commercial register (Handelsregister) of the
local court (Amtsgericht) of Koln under HRB 48718 (the "German Borrower");
(2) Kronos Europe S.A./N.V., a Belgian company with its registered office at
Langerbruggekaai 10, 9000 Ghent, Belgium, registered nationally under RPR
0449.103.862 (the "Belgian Borrower");
(3) Kronos Titan AS, a Norwegian company with registered office at Titangt. 1,
1630 Gamle Fredrikstad, Norway, registered under no. 948 616 491 (the
"Norwegian Borrower 1");
(4) Titania AS, a Norwegian company with registered office at 4380 Hauge i
Dalane, Norway, registered under no. 916 769 318 (the "Norwegian Borrower
2");
(5) Kronos Norge AS, a Norwegian company with registered office at Titangt. 1,
1630 Gamle Fredrikstad, Norway, registered under no. 816 769 132;
(6) Kronos Denmark ApS, a Danish company with registered office is at Hanne
Nielsens Vej 10, 2840 Holte, Denmark, with registration number CVR. no. 24
24 27 81;
(7) Deutsche Bank AG as mandated lead arranger;
(8) THE LENDERS as specified on the signature page; and
(9) Deutsche Bank Luxembourg S.A. as agent for the Finance Parties (as defined
in the Original Facility Agreement) (the "Agent") and as security agent for
the Secured Parties (as defined in the Original Facility Agreement).
RECITALS:
(A) The Lenders made a facility available to the German Borrower, the Belgian
Borrower, the Norwegian Borrower 1 and the Norwegian Borrower 2 pursuant to
the terms and conditions under the Original Facility Agreement (as defined
below).
(B) The Obligors that are parties to the Original Facility Agreement have
requested that each of Kronos Denmark ApS and Kronos Norge AS shall become
a borrower and Kronos Denmark ApS also shall become a guarantor under the
Amended Facility Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Amended Facility Agreement" means the Original Facility Agreement, as
amended by this Agreement.
"Effective Date" means the date on which the Agent confirms to the Lenders
and the German Borrower in writing that it has received each of the
documents listed in Schedule 1 (Conditions Precedent) in a form and
substance satisfactory to the Agent.
"Original Facility Agreement" means the EUR 80,000,000 multicurrency
revolving facility agreement dated 25 June 2002 between, inter alia, Kronos
Titan GmbH (formerly known as Kronos Titan GmbH & Co. oHG), Kronos Europe
S.A./N.V. and others as borrowers, Kronos Titan GmbH (formerly known as
Kronos Titan GmbH & Co. oHG), Kronos Europe S.A./N.V. and others as
guarantors, Deutsche Bank AG as mandated lead arranger, Deutsche Bank
Luxembourg S.A. as agent and security agent and others.
1.2 Unless a contrary indication appears, terms used in the Original Facility
Agreement shall, when used in this Agreement have the same meaning as in
the Original Facility Agreement.
1.3 Any reference in this Agreement to a "Clause" or a "sub-clause" shall,
subject to any contrary indication, be construed as a reference to a clause
or a sub-clause hereof.
2. AMENDMENT
2.1 Borrower and Guarantor Accession
(a) Kronos Norge AS hereby agrees with effect from the Effective Date to
become a borrower under the Amended Facility Agreement and to be bound
by the terms of the Amended Facility Agreement and the other Finance
Documents as a Borrower.
(b) Kronos Denmark ApS hereby agrees with effect from the Effective Date
to become a borrower and a guarantor under the Amended Facility
Agreement and to be bound by the terms of the Amended Facility
Agreement and the other Finance Documents as a Borrower and a
Guarantor.
(c) The Lenders and all other parties hereto hereby expressly agree with
effect from the Effective Date to the accession of Kronos Norge AS as
a Borrower under the Amended Facility Agreement and Kronos Denmark ApS
as a Borrower and Guarantor under the Amended Facility Agreement.
(d) The parties hereto agree that as of the Effective Date any reference
in the Original Facility Agreement to a Borrower or the Borrowers
shall include a reference to Kronos Norge AS and Kronos Denmark ApS
and any reference to a Guarantor or the Guarantors shall include a
reference to Kronos Denmark ApS.
2.2 Further Amendments
(a) As of the Effective Date, the definition of "Norwegian Borrowers"
contained in Clause 1.1 of the Original Facility Agreement shall be
amended as follows:
"Norwegian Borrowers" means the Norwegian Borrower 1, the Norwegian
Borrower 2 and Kronos Norge AS.
(b) As of the Effective Date, the definition of "Permitted Obligor Loan"
is amended by deleting all references to "or Kronos Denmark".
(c) As of the Effective Date, the phrase "the two Norwegian Borrowers"
contained in each of Clause 15.1(a), 15.2(b), 15.3 and 15.6 of the
Original Facility Agreement shall be amended to read "the Norwegian
Borrowers".
(d) As of the Effective Date, the first sentence of Clause 22
(Representations) of the Original Facility Agreement shall be amended
to read as follows:
"Each Obligor makes the representations and warranties set out in this
Clause 22 as to itself and its Subsidiaries (in each case to the
extent applicable) to each Finance Party on the date of this
Agreement."
(e) The parties hereto agree that as of the Effective Date and solely with
respect to Kronos Denmark ApS the definition of "Original Financial
Statements" shall be construed as a reference to the financial
statements to be delivered by Kronos Denmark ApS pursuant to Schedule
1, paragraph 1(f) hereof.
(f) For purposes of clarification, the parties hereto agree that any
reference to "the Norwegian Borrowers" or "the two Norwegian
Borrowers" in Clauses 4(a)(i) and (4)(a)(ii) of Schedule 2 of the
Original Facility Agreement shall solely denote a reference to the
Norwegian Borrower 1 and the Norwegian Borrower 2.
(g) As of the Effective Date, the form attached as part II of Schedule 10
(Form of Combining Schedule) is amended and replaced by the new as
part II of Schedule 10 (Form of Combining Schedule) attached hereto.
2.3 Security Confirmation
(a) The German Borrower hereby confirms that, deviating from Section 418
of the German Civil Code (Burgerliches Gesetzbuch), the Security
Documents entered into by the German Borrower also shall secure the
obligations of Kronos Norge AS, Kronos Denmark ApS and any of the
other Obligors under the Amended Facility Agreement.
(b) The Belgian Borrower hereby confirms that the Security Documents
entered into by them also shall secure the obligations of Kronos Norge
AS, Kronos Denmark ApS and any of the Obligors under the Amended
Facility Agreement.
(c) Kronos Denmark ApS hereby confirms that the Security Documents entered
into by it also shall secure its obligations and the obligations of
Kronos Norge AS and any of the Obligors under the Amended Facility
Agreement
(d) Each of the Norwegian Borrower 1 and the Norwegian Borrower 2 hereby
confirms that the Security Documents entered into by them also shall
secure the obligations of Kronos Norge AS under the Amended Facility
Agreement, in each case to the extent as permitted under the Norwegian
Companies Act 1997 Section 8-7.
3. REPRESENTATIONS
As of the Effective Date, the Obligors and Kronos Denmark ApS make the
representations set out in Clause 22 (Representations) (other than Clause
22.10) of the Original Facility Agreement as if each reference in those
representations to "this Agreement" or "the Finance Documents" includes a
reference to (a) this Agreement and (b) the Amended Facility Agreement.
4. CONTINUITY AND FURTHER ASSURANCE
4.1 Continuing obligations
The provisions of the Original Facility Agreement shall, save as amended in
this Agreement, continue in full force and effect.
4.2 Further assurance
Each of the Obligors and Kronos Denmark ApS shall, at the request of the
Agent and at its own expense, do all such acts and things necessary or
desirable to give effect to the amendments effected or to be effected
pursuant to this Agreement.
5. FEES, COSTS AND EXPENSES
5.1 Transaction expenses
Each of the Borrowers shall within three Business Days of demand, pay the
Agent the amount of all reasonable out-of-pocket costs and expenses
(including reasonable legal fees of outside counsel) reasonably incurred by
the Agent in connection with the negotiation, preparation, printing and
execution of this Agreement and any other documents referred to in this
Agreement.
5.2 Enforcement costs
Each of the Borrowers shall, within three Business Days of demand, pay to
each Secured Party and the Mandated Lead Arranger the amount of all
reasonable out-of-pocket costs and expenses (including legal fees)
reasonably incurred by that Secured Party or the Mandated Lead Arranger in
connection with the enforcement of, or the preservation of any rights,
powers and remedies under this Agreement.
5.3 Stamp taxes
The Borrowers shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and other
similar Taxes payable in respect of this Agreement.
6. MISCELLANEOUS
6.1 Incorporation of terms
The provisions of Clause 37 (Partial Invalidity), Clause 38 (Remedies and
waivers), Clause 40 (Governing Law) and Clause 41.1 (Jurisdiction of German
Courts) of the Original Facility Agreement shall be incorporated into this
Agreement as if set out in full in this Agreement and as if references in
those clauses to "this Agreement" or "the Finance Documents" are references
to this Agreement.
6.2 Service of process
Kronos Denmark ApS:
(a) irrevocably appoints the German Borrower as its agent for service of
process in relation to any proceedings before the German courts in
connection with any Finance Document; and
(b) agree that failure by a process agent to notify them of the process
will not invalidate the proceedings concerned.
6.3 Designation as Finance Document
The German Borrower and the Agent designate this Agreement as a Finance
Document by execution of this Agreement for the purposes of the definition
of Finance Document in the Original Facility Agreement.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
SIGNATURES
The Borrowers
Kronos Titan GmbH
By: /s/ Ulfert Fiand
Kronos Europe S.A./N.V.
By: /s/ Erik Van der Auwera
Kronos Titan AS
By: /s/ Terje Karlsen
Titania AS
By: /s/ Terje Karlsen
Kronos Norge AS
By: /s/ Terje Karlsen
Kronos Denmark ApS
By: /s/ Volker Roth
The Guarantors
Kronos Titan GmbH
By: /s/ Ulfert Fiand
Kronos Europe S.A./N.V.
By: /s/ Erik Van der Auwera
Kronos Norge AS
By: /s/ Terje Karlsen
Kronos Denmark ApS
By: /s/ Volker Roth
The Mandated Lead Arranger
Deutsche Bank AG
By: /s/ Inge Palzer
The Agent and Security Agent
Deutsche Bank Luxembourg S.A.
By: /s/ Inge Palzer
The Lenders
Deutsche Bank Luxembourg S.A.
By: /s/ Inge Palzer
Commerzbank Aktiengesellschaft, Filiale Koln
By: /s/ Inge Palzer
Den norske Bank ASA, Filiale Deutschland
By: /s/ Inge Palzer
Dexia Bank Belgium N.V./S.A.
By: /s/ Inge Palzer
KBC Bank N.V.
By: /s/ Inge Palzer
Dresdner Bank AG in Koln
By: /s/ Inge Palzer
SCHEDULE 1
CONDITIONS PRECEDENT
1. Obligors
(a) A copy of the constitutional documents of each Obligor.
(b) A copy of a resolution of the board of directors of the Belgian
Borrower, the Norwegian Borrower 1, the Norwegian Borrower 2, Kronos
Norge AS and Kronos Denmark ApS:
(i) approving the terms of, and the transactions contemplated by,
this Agreement and resolving that it executes this Agreement;
(ii) authorising a specified person or persons to execute this
Agreement on its behalf; and
(iii)authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices to be signed
and/or despatched by it under or in connection with this
Agreement.
(c) A copy of a resolution signed by all the holders of the issued shares
in the German Borrower, approving the terms of, and the transactions
contemplated by, this Agreement.
(d) A specimen of the signature of each person authorised to sign this
Agreement.
(e) With respect to Kronos Norge AS and Kronos Denmark ApS, a certificate
validly signed confirming that borrowing and/or guaranteeing the Total
Commitments would not cause any borrowing limit binding on it to be
exceeded.
(f) A certificate of an authorised signatory of the relevant Obligor
certifying that each copy document relating to it specified in this
Schedule 1 is correct, complete and in full force and effect as at a
date no earlier than the date of this Agreement.
(g) The latest audited financial statements of Kronos Denmark ApS as of 31
December 2003 prepared in accordance with Applicable GAAP.
2. Legal Opinions
(a) A legal opinion of Clifford Chance Partnerschaftsgesellschaft, legal
advisers to the Agent in Germany, substantially in the form
distributed to the Lenders prior to signing this Agreement.
(b) A legal opinion of Clifford Chance, legal advisers to the Agent in
Belgium, substantially in the form distributed to the Lenders prior to
signing this Agreement.
(c) A legal opinion of Bugge, Arentz-Hansen & Rasmussen, legal advisers to
the Agent in Norway, substantially in the form distributed to the
Lenders prior to signing this Agreement.
(d) A legal opinion of Gorissen Federspiel Kierkegaard, legal advisers to
the Agent in Denmark, substantially in the form distributed to the
Lenders prior to signing this Agreement.
(b) A legal opinion of Clifford Chance Rogers & Wells, legal advisers to
the Agent in the United States of America, substantially in the form
distributed to the Lenders prior to signing this Agreement.
3. Other documents and evidence
A copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and performance of the transaction contemplated by this
Agreement or for the validity and enforceability of this Agreement.
SCHEDULE 10
FORM OF COMBINING SCHEDULE
PART II
The Form Of Combining Schedule consists of a combining balance sheet, combining
statement of income and combining statement of cash flows.
The columns of the combining schedule are labeled as (i) KEU, (ii) Kronos BV,
(iii) Belgium Elims, (iv) Kronos Belgium subtotal, (v) KNAS, (vi) Kronos Titan
A/S, (vii) Titania A/S, (viii) JFJ, (ix) Norway Elims, (x) Kronos Norway
subtotal, (xi) Kronos Titan Gmbh, (xii) KDK, (xiii) Elims, (xiv) Subtotal Bank
Borrowers, (xv) KUK, (xvi) SIT, (xvii) KII Parent, (xix) Elims and (xx) KII
Consolidated. The rows for the combining balance sheet, combining statement of
income and combining statement of cash flows are the same captions as presented
in KII's consolidated financial statements sent to the Bank Group on a quarterly
basis.