EXECUTION COPY
THIRD AMENDMENT TO SUBORDINATED LOAN AGREEMENT
This Third Amendment to Subordinated Loan Agreement (this "Third
Amendment") is dated October 19, 2000, and is made by and between Snake River
Sugar Company, an Oregon cooperative corporation, as Borrower (the "Company"),
and Valhi, Inc., a Delaware corporation, as Lender ("Valhi"), and is
acknowledged by the holders of those certain Senior Notes issued by the Company
due April 30, 2009.
PRELIMINARY STATEMENTS
The Company and Valhi are parties to a Subordinated Loan Agreement
dated January 3, 1997, as amended and restated May 14, 1997 (the "Existing
Agreement"), as further amended by the Second Amendment to the Subordinated Loan
Agreement dated as of November 30, 1998 (the "Second Amendment"), and as further
amended by this Third Amendment, (the "Subordinated Loan Agreement"). All
capitalized terms defined in the Subordinated Loan Agreement not otherwise
defined in this Third Amendment shall have the same meanings herein as in the
Subordinated Loan Agreement.
The Company and Valhi have agreed to amend the Subordinated Loan
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, subject to satisfaction of the conditions noted
below, the Company and Valhi hereby agree as follows:
1. Modification of Financial Covenants.
1.1 Section 10.8(a) of the Subordinated Loan Agreement shall be and is
hereby amended in its entirety to read as follows:
"(a) The Company will not permit, as at the end of each fiscal
quarter of the Company, the ratio of Consolidated Senior Debt to
Distributable Cash for the period of four LLC fiscal quarters ending on
or closest (but prior) to such date to exceed (i) 11.25:1.00 from the
date of the Closing to and including November 30, 1997; (ii) 12.00:1.00
from December 1, 1997 to and including May 30, 1999; (iii) 10.50:1.00
from June 1, 1999 to and including November 30, 1999; (iv) 7.75:1.00
from December 1, 1999 to and including February 29, 2000; (v) 8.00:1.00
from March 1, 2000 to and including May 31, 2000; (vi) 7.50:1.00 from
June 1, 2000 to and including May 31, 2001; (vii) 8.50:1.00 from June
1, 2001 to and including August 31, 2001; (viii) 7.00:1.00 from
September 1, 2001 to and including February 28, 2002; (ix) 6.50:1.00
from March 1, 2002 to and including August 31, 2002; (x) 6.00:1.00 from
September 1, 2002 to and including February 28, 2003; (xi) 5.00:1.00
from March 1, 2003 to and including November 30, 2003; (xii) 4.50:1.00
from December 1, 2003 to and including November 30, 2006; and (xiii)
3.50:1.00 thereafter; provided, however, that following the date upon
which Valhi purchases all of the Senior Notes upon exercise of its
rights under all of those certain Option Agreements between Valhi, the
Company and the holders of the Senior Notes, the ratios contained in
this Section 10.8(a) shall be such ratios during such time periods as
described in Section 10.8(a) of the Note Purchase Agreements and Senior
Notes as in effect immediately prior to such exercise by Valhi."
1.2 Section 10.8(b) of the Subordinated Loan Agreement shall be and is
hereby amended in its entirety to read as follows:
"(b) The Company will not permit, as at the end of each fiscal
quarter of the Company, the ratio of Consolidated Total Debt to
Distributable Cash for the period of four LLC fiscal quarters ending on
or closest (but prior) to such date to exceed (i) 8.00:1.00 from the
date of the Closing to and including November 30, 1997; (ii)18.00:1.00
from December 1, 1997 to and including May 30, 1999; (iii) 16.00:1.00
from June 1, 1999 to and including November 30, 1999; (iv) 12.00:1.00
from December 1, 1999 to and including February 29, 2000; (v)
14.00:1.00 from March 1, 2000 to and including May 31, 2000; (vi)
12.00:1.00 from June 1, 2000 to and including May 31, 2001; (vii)
13.75:1.00 from June 1, 2001 to and including August 31, 2001; (viii)
11.75:1.00 from September 1, 2001 to and including February 28, 2002;
(ix) 10.00:1.00 from March 1, 2002 to and including August 31, 2002;
(x) 9.50:1.00 from September 1, 2002 to and including February 28,
2003; (xi) 6.75:1.00 from March 1, 2003 to and including November 30,
2003; (xii) 6.00:1.00 from December 1, 2003 to and including November
30, 2006; and (xiii) 5.00:1.00 thereafter; provided, however, that
following the date upon which Valhi purchases all of the Senior Notes
upon exercise of its rights under all of those certain Option
Agreements between Valhi, the Company and the holders of the Senior
Notes, the ratios contained in this Section 10.8(b) shall be such
ratios during such time periods as described in Section 10.8(b) of the
Note Purchase Agreements and Senior Notes as in effect immediately
prior to such exercise by Valhi."
1.3 Section 10.8(c) of the Subordinated Loan Agreement shall be and is
hereby amended in its entirety to read as follows:
"(c) The Company will not permit, as at the end of any fiscal
quarter of the Company, the ratio of (x) the sum of Distributable Cash
for the period of four LLC fiscal quarters ending on or closest (but
prior) to such date and Consolidated operating lease and rent payments
of the Company and its Subsidiaries for the period of four fiscal
quarters ending on such date to (y) Consolidated Fixed Charges to be
less than (i) 1.50:1.00 from the date of the Closing to and including
November 30, 1997; (ii) 0.50:1.00 from December 1, 1997 to and
including May 30, 1999; (iii) 0.60:1.00 from June 1, 1999 to and
including November 30, 1999; (iv) 0.85:1.00 from December 1, 1999 to
and including February 29, 2000; (v) 0.80:1.00 from March 1, 2000 to
and including May 31, 2000; (vi) 0.90:1.00 from June 1, 2000 to and
including February 28, 2002; (vii) 1.00:1.00 from March 1, 2002 to and
including February 28, 2003; and (viii) 1.75:1.00 thereafter; provided,
however, that following the date upon which Valhi purchases all of the
Senior Notes upon exercise of its rights under all of those certain
Option Agreements between Valhi, the Company and the holders of the
Senior Notes, the ratios contained in this Section 10.8(c) shall be
such ratios during such time periods as described in Section 10.8(c) of
the Note Purchase Agreements and Senior Notes as in effect immediately
prior to such exercise by Valhi."
1.4 Section 10.8(d) of the Subordinated Loan Agreement shall be and is
hereby amended in its entirety to read as follows:
"(d) The Company will not permit LLC to have at any time a ratio of (A) accounts
receivable plus inventory on ---- a FIFO basis (excluding sugar that is
collateral for CCC Loans), to (B) the aggregate outstanding amount of the Bank
Loans, of less than (i) 1.60:1.00 from the date of Closing to and including
November 29, 1998; (ii) 1.55:1.00 from November 30, 1998 to and including
September 29, 2000; and (iii) 1.40:1.00 thereafter, provided, however, that
following the date upon which Valhi purchases all of the Senior Notes upon
exercise of its rights under all of those certain Option Agreement between
Valhi, the Company and the holders of the Senior Notes, the ratio contained in
this Section 10.8(d) shall be the first ratio as described in Section 10.8(b) of
the Note Purchase Agreements and Senior Notes as in effect immediately prior to
such exercise by Valhi."
1.5 A new Section 10.8(h) shall be and is hereby added to read as
follows:
"10.8(h). Notwithstanding the forgoing Sections 10.8(a)
through 10.8(g), upon the Company satisfying the Conversion Condition,
then all covenants contained in Section 10.8 of the Existing Agreement
shall apply for all purposes of the Subordinated Loan Agreement, from
and after the first day of fiscal quarter immediately following
satisfaction of such Conversion Condition (after giving effect,
however, to the amendment set forth in Sections 4.5, 4.6, 4.7 and 4.8
of the Second Amendment but not to any other amendment affecting
Section 10.8 set forth in the Second Amendment, and provided that the
date "December 1, 2001" set forth in Section 10.8(a)(ii) and in Section
10.8(b)(iii) of the Existing Agreement shall be deemed changed to
"December 1, 2000," the date "December 1, 2004" set forth in Section
10.8(a)(iii) and in Section 10.8(b)(iv) of the Existing Agreement shall
be deemed changed to "December 1, 2003," and the date "December 1,
2002" set forth in Section 10.8(c)(ii) of the Existing Agreement shall
be deemed changed to "December 1, 2001")."
2. Amendment to the Second Amendment. The first sentence of Section 2 of
the Second Amendment is hereby deleted. Section 3 of the Second
Amendment is hereby deleted. Section 4.9 of the Second Amendment is
hereby deleted.
3. Amendment of Section 8.1(b). The Subordinated Loan Agreement shall be
and is hereby amended by adding the following to the end of Section
8.1(b):
"Notwithstanding the forgoing, to the extent permitted by the terms of
the Note Purchase Agreements and the Senior Notes, beginning in 2000
the Company may, in any given year, use cash on deposit in the
Distributable Cash Collateral Account to reduce the Unit Retain for
such year in an amount equal to or less than the Beet Payment
Withholding (as defined in the Company Agreement) for such year, and
such cash from the Distributable Cash Collateral Account shall not be
required to be used by the Company to prepay the Obligations pursuant
to this Section 8.1(b), provided that the actual amount paid by the
Company for the purchase of sugarbeets pursuant to the Grower Contracts
for such year shall never exceed the Beet Payment (as defined in the
Company Agreement).
Notwithstanding the forgoing or any other provision of this Agreement,
Valhi and the Company hereby agree, for the benefit of the Noteholders,
that notwithstanding the absence of a Default or an Event of Default
under the Note Purchase Agreements and the Senior Notes which would
constitute a Specified Default under the ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
shall not be entitled to receive, and the Company shall not make, any
payments pursuant to this Section 8.1(b) or otherwise on the
Subordinated Debt except as permitted by Section 10.5 of the Note
Purchase Agreements, provided, however, that when (x) the Company has
achieved full compliance with the Original Covenants (as defined in the
First Amendment to the Note Purchase Agreements) for a period of four
consecutive fiscal quarters ending on the last day of a fiscal year of
the Company, (y) the LLC would have been able to pay aggregate
distributions during such four consecutive fiscal quarters pursuant to
Sections 9.3.1(a) and 9.3.1(b) of the Company Agreement of at least
$26,697,372 before giving effect to any Beet Payment Withholding during
such four consecutive fiscal quarters and (z) the Company has delivered
to the Noteholders an Officer's Certificate in accordance with Sections
7.1 and 7.2(a), respectively, of the Note Purchase Agreements, with a
copy to Valhi, along with audited financial statements demonstrating
such compliance (collectively, the "Conversion Condition"), then (i)
the Company shall be required to make the election set forth in clause
(i) of the fourth full paragraph of Section 1.2(b) of the First
Amendment to the Note Purchase Agreements, (ii) the Company shall be
required to promptly prepay the Obligations within five Business Days
using all available cash on hand, and (iii) thereafter the Company
shall be required to use all Excess Cash Flow subsequently generated to
prepay the Obligations and shall not use any Excess Cash Flow
subsequently generated for any other purpose, including making advances
to or additional investments in the LLC or any other Subsidiary of the
Company, prepaying the Senior Notes or repaying Unit Retains owing to
the Company's shareholders, provided, however, that any and all
payments on the Subordinated Debt which are made following the
satisfaction of the Conversion Condition set forth above may be made
only in accordance with the Original Covenants and all other covenants
and conditions set forth in the Transaction Documents, and provided
further that no Default or Event of Default under the Note Purchase
Agreements exists or would result from such payments.
Notwithstanding the forgoing, between the period from May 15, 1997 and
October 19, ▇▇▇▇, ▇▇▇▇▇ shall be entitled to receive, and the Company
may pay to Valhi, the amounts of $2,679,000 (paid in 1997), $2,864,844
(paid in 1998), $7,200,000 (paid in 1999) and $950,000 (paid in 2000)
representing interest accrued on the Subordinated Debt.
Notwithstanding the forgoing, following the date when the Senior Notes
are paid in full, the Company shall use all Excess Cash Flow to prepay
the Obligations and shall not use any Excess Cash Flow for any other
purpose, including making advances to or additional investments in the
LLC or any other Subsidiary of the Company, prepaying the Senior Notes
or repaying Unit Retains owing to the Company's shareholders.
Valhi hereby waives all rights and remedies otherwise available to it
pursuant to Section 12 as a result of the Company's failure to comply
with the payment provisions of this Section 8.1(b) with respect to
amounts that are not permitted to be paid to Valhi pursuant to the
terms of this Section 8.1(b), the Note Purchase Agreements and the
Senior Notes."
4. Amendment of Section 8.2. Subsections 8.2(a) and (b) of the
Subordinated Loan Agreement shall be and are hereby amended to read in
their entirety as follows:
"(a) Rate. Prior to January 1, 1999, the outstanding principal balance
of the $80,000,000 Note shall bear interest at a rate per annum
(meaning 360 days) equal to 10.99 percent, and commencing January 1,
1999, the outstanding principal balance of the Subordinated Notes shall
bear interest at a rate per annum (meaning 360 days) equal to 12.99
percent; provided, however, that commencing on April 1, 2000, the
outstanding principal balance of the $80,000,000 Note shall bear
interest at a rate per annum (meaning 360 days) equal to 6.49 percent.
The outstanding principal balance, if any, of the Collateral Deposit
Note and the Contribution Note shall bear interest at a rate per annum
(meaning 360 days) equal to 10.145 percent. After the occurrence and
during the continuance of an Event of Default, each Subordinated Note
and all other Obligations shall, at your option, bear interest at a
rate per annum (meaning 360 days) equal to the Default Rate."
"(b) Computation and Payment of Interest. Interest on the Subordinated
Notes and all other Obligations shall be computed on the daily
principal balance on the basis of a 360-day year consisting of twelve
30-day months and shall be payable monthly in arrears on the last day
of each month, provided, however, that interest shall only be payable
to the extent provided in Section 8.1(b). Interest not paid on a
monthly basis will be compounded annually from the applicable monthly
date; provided, however, that commencing on April 1, 2000, interest not
paid on a monthly basis will no longer be compounded, but all interest
accrued prior to April 1, 2000 (including compounded interest) shall
remain due and payable, and provided further, however, that no interest
(including previously compounded interest) shall continue to bear
interest pursuant to this Subsection 8.2 subsequent to March 31, 2000.
Whenever any payment to be made hereunder shall be stated to be due on
a day that is not a Business Day, the payment may be made on the next
succeeding Business Day and such extension of time shall be included in
the computation of the amount of interest or fees due hereunder."
5. Amendment to Section 9.9. Section 9.9 shall be and is hereby amended to
read in its entirety as follows: "9.9 Annual Security Interest Opinion.
Commencing within 30 days following occurrence of a Grant Effectiveness
Condition (as defined in the Contingent Subordinated Security
Agreement), and for each calendar year thereafter on or before March 15
of such calendar year, the Company shall cause to be delivered to Valhi
an opinion of counsel, reasonably acceptable to Valhi (with ▇▇▇▇ ▇▇▇▇▇,
general counsel of the LLC, being acceptable counsel), covering the
matters set forth in paragraphs 23 through 28 of Exhibit 4.4(a) of the
Note Purchase Agreement and Senior Notes. Such opinion of counsel shall
describe the actions that will, in the opinion of such counsel, be
required to maintain the Lien and security interest of the Collateral
Agent with respect to the Collateral in the following calendar year."
6. Amendment of Section 10.3. Subsection 10.3(a) of the Subordinated Loan
Agreement shall be and is hereby amended to read in its entirety as
follows:
"(a) Liens securing the Senior Notes and the Subordinated Notes."
7. Amendment of Section 11. Section 11 of the Subordinated Loan Agreement
shall be and hereby is amended by (i) adding the phrase "or, following
the occurrence of the Grant Effectiveness Condition (as defined
therein), in any Collateral Document" immediately after the phrase "the
Company defaults in the performance of or compliance with any term
contained herein" in Section 11(c), (ii) deleting the punctuation ▇▇▇▇
"." at the end of clause (k) and replacing it with "; or", and (iii)
new Sections 11(l) and 11(m) shall be and are hereby added as follows:
"(l) Effective October 1, 2000, the LLC shall (Y) pay to the Company
any installment of the aggregate Beet Payment (as defined in the
Company Agreement) for any crop year (other than the final installment)
without withholding from such installment an amount equal to a ratable
portion of the aggregate Beet Payment Withholding for such crop year,
less an amount equal to a ratable portion of the aggregate Unit Retain
reduction for such crop year permitted pursuant to the terms of the
Note Purchase Agreements and Senior Notes or (Z) pay to the Company the
final installment of the aggregate Beet Payment (as defined in the
Company Agreement) for such crop year without withholding from such
installment an amount such that the aggregate amount of such
withholdings for such crop year will equal the aggregate Beet Payment
Withholding for such crop year.
(m) Any Collateral Document shall, at any time, cease to be in full
force and effect (other than by reason of a release of Collateral
thereunder in accordance with the terms hereof or thereof, the
satisfaction in full of all obligations of the Company under this
Subordinated Loan Agreement or any other termination of such Collateral
Document in accordance with the terms hereof or thereof) or shall be
declared null and void, or the validity or enforceability thereof shall
be contested in writing by any Person, or, following the occurrence of
the Grant Effectiveness Condition (as defined in the applicable
Collateral Document), the Collateral Agent shall not have or shall
cease to have, for any reason (other than the failure of the Collateral
Agent or any holder of the Subordinated Notes to take any action within
its control), a valid security interest in any Collateral purported to
be covered thereby, perfected and with the priority required by this
Agreement and the relevant Collateral Document and subject only to
Liens permitted under this Agreement and the applicable Collateral
Document."
8. Amendment to Section 17.1 Section 17.1 shall be and is hereby amended
by (i) adding the phrase ", the Collateral Documents" immediately after
the phrase "This Agreement" contained in the first sentence of Section
17.1, (ii) by deleting from the first sentence in Section 17.1 the
phrase ", if required pursuant to the Subordination Agreement," and
(iii) by adding the phrase "or any section of the Collateral Documents"
immediately after the phrase "Sections 8, 11(a), 11(b), 12, 17 or 20"
contained in the last sentence of section 17.1.
9. Amendment of Definitions.
(a) The following definitions contained in Schedule A of the
Subordinated Loan Agreement shall be and are hereby amended to
read in its entirely as follows:
""Company Agreement" means the Company Agreement of the LLC as
it may be amended or modified from time to time."
""Note Purchase Agreements" means the Note Purchase Agreements
dated as of the date of Closing between the Company and each
of the purchasers of the Senior Notes pursuant to such
agreements, as such Note Purchase Agreements may be amended or
modified from time to time."
""Senior Notes" means the Company's 10.8% Senior Notes due
April 30, 2009, as such Senior Notes may be amended or
modified from time to time."
""Excess Cash Flow" means, with respect to any period,
Distributable Cash for the comparable period of LLC ending on
or closest (but prior) to the last day of such period, less
(i) actual debt service in respect of Senior Debt described in
clause (i) of the definition of "Senior Debt" (including,
without limitation, any Debt of Persons other than the Company
guaranteed by the Company), including, without limitation, the
Senior Notes, (ii) patronage dividends actually paid to the
Company's shareholders and (iii) Permitted Operating
Expenses."
""Unit Retain" means a withholding of beet crop payments due
to the grower shareholders of the Company as imposed by the
Company's board of directors, including without limitation
amounts resulting from Beet Payment Withholdings (as defined
in the Company Agreement)."
"Loan Documents" means this Agreement, the Subordinated Notes,
the Collateral Documents and all other instruments, documents
and agreements executed by or on behalf of the Company and
delivered concurrently herewith or at any time hereafter for
the benefit of you in connection with the Subordinated Notes
and other transactions contemplated by this Agreement, all as
amended, restated, supplemented or otherwise modified from
time to time.
(b) The following definitions shall be and are hereby added to
Schedule A of the Subordinated Loan Agreement as follows:
""Conversion Condition" shall have the meaning set forth in
Section 8.1(b)."
"Collateral" means (a) "Pledged Collateral" as defined in the
Contingent Subordinate Pledge Agreement and (b) "Collateral"
as defined in the Contingent Subordinate Security Agreement.
"Collateral Agent" means FSB, or any successor Collateral
Agent under the Contingent Subordinated Collateral Agency and
Paying Agency Agreement.
"Collateral Documents" means the Contingent Subordinate Pledge
Agreement, the Contingent Subordinate Security Agreement, the
Contingent Subordinate Collateral Agency and Paying Agency
Agreement or any agreements referred to therein.
"Contingent Subordinate Collateral Agency and Paying Agency
Agreement" means that certain Contingent Subordinate
Collateral Agency and Paying Agency Agreement dated as of
October 19, 2000 by and among Valhi, the Company and FSB, as
such may be amended or modified from time to time.
"Contingent Subordinate Pledge Agreement" means that certain
Contingent Subordinate Pledge Agreement dated as of October
19, 2000 by and between the Company and Valhi and acknowledged
by FSB as Collateral Agent, as such may be amended or modified
from time to time.
"Contingent Subordinate Security Agreement" means that certain
Contingent Subordinate Security Agreement dated as of October
19, 2000 by and between the Company and Valhi and acknowledged
by FSB as Collateral Agent, as such may be amended or modified
from time to time.
"FSB" means First Security Bank, National Association.
"Valhi" means Valhi, Inc., a Delaware corporation.
10. Amendment of Section 6.3 of the Second Amendment. Subsection 6.3 of the
Second Amendment shall be and is hereby amended to read in its entirety
as follows:
"6.3 Governing Law. This Second Amendment, and the rights of the
parties hereto, shall be governed by and construed in accordance with
the laws of the State of Utah."
11. New Section 22.12. A new Section 22.12 shall be and is hereby added to
read in its entirety as follows:
" 22.12. Certain Rights of Specific Performance.
To the extent that the Company's Board of Directors shall have approved
the SRSC Annual Irrevocable Cash Plan (as defined in the Company
Agreement) for any given Fiscal Year (as defined in the Company
Agreement), the Company agrees and acknowledges that money damages may
not be an adequate remedy for any failure by the Company to make debt
service payments to Valhi under this Subordinated Loan Agreement for
such Fiscal Year in amounts sufficient to comply with such Fiscal
Year's SRSC Annual Irrevocable Cash Plan or any failure by the Company
to otherwise give full effect to such Fiscal Year's SRSC Annual
Irrevocable Cash Plan, and that Valhi may in its sole discretion apply
to any court of law or equity or competent jurisdiction for specific
performance by the Company to make debt service payments to Valhi under
this Subordinated Loan Agreement for such Fiscal Year in amounts
sufficient to comply with such Fiscal Year's SRSC Annual Irrevocable
Cash Plan or to otherwise take all actions necessary to carry out, and
to give full effect to, such Fiscal Year's SRSC Annual Irrevocable Cash
Plan, subject always, however, to the limitations contained in Section
8.1(b) hereof."
12. Conditions Precedent. Each of the following shall be considered a
condition precedent to the effectiveness of this Third Amendment:
(b) The Company will obtain modifications to the Note Purchase
Agreements and the Senior Notes, which modifications must be
satisfactory to Valhi in all material respects.
(c) The Company will execute and delivery to Valhi (i) a
Contingent Pledge Agreement in the form attached to this Third
Amendment as Exhibit A; (ii) a Contingent Security Agreement
in the form attached to this Third Amendment as Exhibit B; and
(iii) a Contingent Collateral Agency and Paying Agency
Agreement in the form attached to this Third Amendment as
Exhibit C.
(d) The execution and delivery by all of the parties thereto of
that certain Master Agreement dated October 19, 2000, by and
among the parties hereto, among others.
13. Condition to Continuing Effectiveness. The parties hereto agree and
acknowledge that if at any time following the execution of this Third
Amendment, either (i) the Company shall fail to approve by January 15th
of any year the SRSC Annual Irrevocable Cash Plan (as defined in the
Company Agreement) for such fiscal year of the LLC or (ii) the unpaid
Accrual exceeds the Accrual Threshold (as both are defined in the
Company Agreement), then this Third Amendment shall immediately become
retroactively null and void and the terms of the Subordinated Loan
Agreement shall retroactively be as in effect immediately prior to the
execution of this Third Amendment.
14. Representations and Warranties:
(e) Valhi Representations and Warranties. Valhi hereby represents and
warrants as follows:
(i) Organization and Authority Valhi is an organization
duly and validly incorporated and existing and in
good standing under the laws of the State of Delaware
and has full corporate power to enter into and
perform its obligations under this Third Amendment.
(ii) Authorization; Enforceability. The execution,
delivery. and performance of this Third Amendment by
Valhi are within the corporate power of Valhi and
have been duly authorized by all necessary corporate
action on the part of Valhi. This Third Amendment is
the legally valid and binding agreement of Valhi,
enforceable against Valhi in accordance with its
terms.
(iii) No Violation or Conflict. The execution, delivery and
performance of this Third Amendment by Valhi do not
and will not violate any law or the Certificate of
Incorporation or Bylaws of Valhi, or result in a
breach of the terms, conditions or provisions of, or
constitute a default under, any contract, agreement,
instrument, order, judgment or decree to which Valhi
is a party or by which Valhi is bound, which
violation, conflict, breach or default would have a
material adverse effect on Valhi's ability to
consummate the transactions contemplated hereby.
(f) Company Representations and Warranties. The Company hereby represents
and warrants as follows:
(i) Organization and Authority. The Company is a
cooperative corporation duly and validly organized
and existing and in good standing under the laws of
the State of Oregon and has full power to enter into
and perform its obligations under this Third
Amendment.
(ii) Authorization; Enforceability. The execution,
delivery and performance of this Third Amendment by
the Company are within the power of the Company and
have been duly authorized by all necessary action on
the part of the Company. This Third Amendment is the
legally valid and binding agreement of the Company,
enforceable against the Company in accordance with
its terms.
(iii) No Violation or Conflict. The execution, delivery and
performance of this Third Amendment by the Company do
not and will not violate any law or the
organizational documents of the Company, or result in
a breach of the terms, conditions or provisions of,
or constitute a default under, any contract,
agreement, instrument, order, judgment or decree to
which the Company is a party or by which the Company
is bound, which violation, conflict, breach or
default would have a material adverse effect on the
Company's ability to consummate the transactions
contemplated hereby.
15. Miscellaneous.
(g) Enforceability; Validity. Each party hereto expressly agrees
that this Third Amendment shall be specifically enforceable in
any court of competent jurisdiction in accordance with its
terms and against each of the parties hereto.
(h) Successors and Assigns. All of the covenants and agreements
contained in this Third Amendment shall be binding upon, and
inure to the benefit of, the respective parties and their
successors, assigns, heirs, executors, administrators and
other legal representatives, as the case may be.
(i) Governing Law. This Third Amendment, and the rights of the
parties hereto, shall be governed by and construed in
accordance with the laws of the State of Utah.
(j) Counterparts. This Third Amendment may be executed in one or
more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same
instrument.
(k) Amendment; Waiver. No amendment, modification, termination or
waiver of any provision of this Third Amendment, and no
consent to any departure by any party therefrom, shall in any
event be effective unless the same shall be in writing and
signed by the parties hereto. Any such amendment,
modification, termination, waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which it was given.
(l) Severability. If any provision of this Third Amendment shall
be declared void or unenforceable by any court or
administrative board of competent jurisdiction, such provision
shall be deemed to have been severed from the remainder of
this Third Amendment, and this Third Amendment shall continue
in all other respects to be valid and enforceable.
IN WITNESS WHEREOF, the parties hereby have caused this Third Amendment
to be duly executed and delivered by their respective officers thereunder duly
authorized as of the date first written above.
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SNAKE RIVER SUGAR COMPANY
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VALHI, INC.
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ACKNOWLEDGED:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
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CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By: CIGNA INVESTMENTS, INC.
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LIFE INSURANCE COMPANY
OF NORTH AMERICA
By: CIGNA INVESTMENTS, INC.
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MINNESOTA LIFE INSURANCE COMPANY
By: Advantus Capital
Management, Inc.
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THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: LINCOLN INVESTMENT MANAGEMENT, INC.
Its Attorney-in-Fact
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LINCOLN LIFE & ANNUITY COMPANY
OF NEW YORK
By: LINCOLN INVESTMENT MANAGEMENT, INC.
Its Attorney-in-Fact
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