EXTENSION AND AMENDMENT AGREEMENT (2006)
This
Extension and Amendment Agreement (2006) (the “Agreement”) is entered into as of
October 27, 2006, among CONTRAN CORPORATION (“Contran”), VALHI HOLDING COMPANY
(“VHC”) (collectively, the “Contran Companies”), and U.S. BANK NATIONAL
ASSOCIATION (“U.S. Bank”).
RECITALS
A. Contran
and U.S. Bank are parties to a loan agreement dated as of September 3, 1998.
That agreement, as it has been modified and amended, is referred to herein
as
the “Loan Agreement.”
B. Capitalized
terms used in this Agreement that are not defined herein have the meanings
assigned to those terms in the Loan Agreement.
C. Pursuant
to a Guaranty and a Pledge Agreement dated October 28, 2005, VHC guaranteed
payment and performance of Contran’s obligations pursuant to the Note and VHC
granted U.S. Bank a security interest in the Pledged Securities as collateral
for the Obligations.
D. Contran
has requested U.S. Bank to extend the Expiry Date of the revolving credit
facility provided by U.S. Bank pursuant to the Loan Documents to October 26,
2007. U.S. Bank is prepared to do so, subject to the terms and conditions set
forth in this Agreement.
NOW,
THEREFORE, for valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Contran Companies and U.S. Bank agree as
follows:
AGREEMENT
1. Conditions
Precedent. This Agreement shall be effective if the following conditions are
satisfied on or before October 27, 2006:
(a) The
Contran Companies execute this Agreement and deliver it to U.S. Bank;
and
(b) Contran
completes, executes, and delivers to U.S. Bank a Federal Reserve Form
U-l.
If
the
above-described conditions precedent are not satisfied by October 27, 2006
(or
waived by U.S. Bank in writing in its sole and absolute discretion), this
Agreement shall not be effective and the parties’ rights and obligations shall
continue to be governed by the Loan Documents (without giving effect to this
Agreement).
2. Representations
and Warranties of the Contran Companies. Each Contran Company hereby
represents and warrants to U.S. Bank that (a) it is in good standing under
the
laws of the state of its formation, (b) it has been authorized to execute and
perform its obligations under this Agreement and the Loan Documents (as modified
by this Agreement), (c) the individual executing this Agreement on its behalf
has been duly authorized to take such action, (d) the Loan Documents (as amended
by this Agreement) are enforceable against it in accordance with their
respective terms, subject only to the effect of insolvency and other similar
laws affecting the rights and remedies of creditors generally, general
principles of equity whether applied by a court of law or equity, and generally
applicable rules of law, (e) all financial information previously provided
to
U.S. Bank presents fairly its financial position as of the date of such
financial information and the results of its operations and changes in financial
position for the period in question, (f) the representations and warranties
made
to U.S. Bank in the Loan Documents continue to be true and correct in all
material respects, and (g) the Contran Companies are not in default in any
material respect under the Loan Documents as of the date of this
Agreement.
3. Extension
of Expiry Date. U.S. Bank hereby extends the Expiry Date, and U.S. Bank’s
commitment to make Advances to Contran (on the terms and conditions specified
in
the Loan Documents), to October 26, 2007.
4. Reaffirmation
of Obligations. Contran and VHC hereby acknowledge and reaffirm their
agreements to pay the Obligations in accordance with the terms of the Note
and
the Guaranty, respectively.
5. Cash
Collateralization of Certain Letters of Credit. If U.S. Bank discontinues
its commitment to extend the revolving credit facility to the Contran Companies,
and at that time any letter of credit or letters of credit are outstanding
under
the Loan Documents, the Contran Companies within three Business Days of U.S.
Bank’s termination of that credit commitment shall deposit with U.S. Bank cash
in an amount specified by U.S. Bank in its reasonable discretion sufficient
to
fully collateralize the Contran Companies’ obligations in respect of such
letters of credit.
6. Effectiveness
of this Agreement. This Agreement shall become effective only when each of
the Contran Companies and U.S. Bank has signed it and has sent a copy of the
signed document to the other parties to this Agreement (which may be
accomplished by facsimile transmission or electronic transmission). Each party
to this Agreement shall deliver manually signed counterparts of this Agreement
to the other.
7. Other
Terms Unchanged. All of the terms and conditions of the Loan Agreement and
the Loan Documents remain in full force and effect, as expressly modified by
the
terms and conditions of this Agreement.
8. Statutory
Notice. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES, AND
COMMITMENTS MADE BY U.S. BANK CONCERNING LOANS AND OTHER CREDIT EXTENSIONS
WHICH
ARE NOT FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION, AND BE SIGNED BY
U.S. BANK TO BE ENFORCEABLE.
U.S.
BANK NATIONAL ASSOCIATION
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Vice
President
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CONTRAN
CORPORATION
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Vice
President and Chief Financial
Officer
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VALHI
HOLDING COMPANY
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Vice
President and Assistant
Treasurer
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