EX-5 3 ex5.txt THIRD AMENDMENT OF CREDIT AGREEMENT This Third Amendment of Credit Agreement (the "Third Amendment") is entered into as of November 2, 2001, among VALHI, INC. (the "Borrower"), U.S. BANK NATIONAL ASSOCIATION ("U.S. Bank"), COMERICA BANK, and TEXAS CAPITAL BANK (collectively, the "Banks"), and U.S. Bank, as the Administrative Agent and Issuing Bank. RECITALS A. The Borrower and the Banks are parties to a Credit Agreement dated as of November 6, 1998, as amended by a First Amendment Agreement dated as of November 5, 1999, and a Second Amendment Agreement dated as of November 3, 2000 (which Credit Agreement, as amended, is referred to in this Third Amendment as the "Credit Agreement"). Capitalized terms defined in the Credit Agreement and not otherwise defined in this Third Amendment are used in this Third Amendment with the meanings so defined in the Credit Agreement. B. U.S. Bank is the Agent, the Issuing Bank, and the Arranger under the Credit Agreement and the other Credit Documents. C. The Borrower has requested the Banks to extend the Maturity Date of the Credit Agreement for a period of 364 days and has requested that the aggregate amount of the Commitments be increased to $55,000,000. D. The Banks have elected to renew and extend for 364 days the credit facility governed by the Credit Agreement and U.S. Bank has agreed to increase its Commitment to $35,000,000, as more particularly described in this Third Amendment. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties to this Third Amendment agree as follows: 1. Amendment of the Credit Agreement. From and after the Third Amendment Effective Date, the Credit Agreement hereby is amended as follows: (a) Amendment of Section 1.01 of the Credit Agreement. Section 1.01 of the Credit Agreement is amended as follows: (i) the reference to the date "September 16, 1998" (which previously has been amended to October 17, 2000) in the definition of the term "Agent Fee Letter" hereby is deleted and replaced by "October 24, 2001"; and (ii) the reference to the date "November 3, 2000" (which previously has been amended to November 2, 2001) in the definition of the term "Maturity Date" hereby is deleted and replaced by "November 1, 2002." (b) Revised Annexes. Annexes I, II, and III to the Credit Agreement hereby are replaced in their entirety with Annexes I, II, and III attached to this Third Amendment. 2. Replacement Notes. Each of the Banks agrees to return to the Borrower, immediately following the Third Amendment Effective Date, the Notes issued pursuant to the Credit Agreement in favor of such Bank, marked on the face of such Note "replaced by note issued pursuant to Third Amendment of Credit Agreement." 3. Representations and Warranties; No Default. The Borrower hereby represents and warrants to each of the Banks that all of the representations and warranties of the Borrower set forth in the Credit Agreement are true and correct as of the date of this Third Amendment and no Default has occurred and is continuing as of the date of this Third Amendment. 4. Effectiveness of Third Amendment. This Third Amendment shall become effective on November 2, 2001 (the "Third Amendment Effective Date"), provided that the Agent has confirmed in writing to each of the parties to this Third Amendment on such date that: (a) Counterparts. The Agent has received a counterpart of this Third Amendment executed by each of the parties to this Third Amendment; (b) Borrower's Certificate. The Agent has received a Certificate of Secretary or Assistant Secretary of the Borrower that certifies (i) the title, authority, and true signature of the officer of the Borrower executing this Third Amendment on behalf of the Borrower, (ii) that the Borrower's Certificate of Incorporation and Bylaws have not changed since the delivery of those certified to the Banks as of the date of the original closing of the Credit Agreement, and (iii) resolutions of the Borrower's Board of Directors authorizing the continuation of the credit facility governed by the Credit Agreement, as amended by this Third Amendment; (c) Form U-1. The Agent has received a Federal Reserve Form U-1 dated as of November 2, 2001, duly completed and executed by the Borrower and the Agent; and (d) New Notes. The Agent has received (i) a Note payable to the order of U.S. Bank in the principal amount of $35,000,000, (ii) a Note payable to the order of Comerica Bank in the principal amount of $15,000,000, and (iii) a Note payable to the order of Texas Capital Bank in the principal amount of $5,000,000, each duly executed by the Borrower and in the form of Exhibit A to the Credit Agreement. 5. Counterparts. This Third Amendment may be executed in any number of counterparts (which together shall constitute a single document). 6. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 7. ENTIRE AGREEMENT. THIS THIRD AMENDMENT AND THE CREDIT AGREEMENT AND OTHER CREDIT DOCUMENTS CONSTITUTE THE ENTIRE AGREEMENT AMONG THE PARTIES PERTAINING TO THE SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS, UNDERTAKINGS, UNDERSTANDINGS, REPRESENTATIONS OR OTHER ARRANGEMENTS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, OF THE PARTIES IN CONNECTION HEREWITH EXCEPT TO THE EXTENT EXPRESSLY INCORPORATED OR SPECIFICALLY REFERRED TO HEREIN OR THEREIN. IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be executed by their respective officers duly authorized as of the date first written above. THE BORROWER: THE BANKS: VALHI, INC. COMERICA BANK By By Bobby D. O'Brien T. Bancroft Mattei Vice President and Treasurer Assistant Vice President THE AGENT: TEXAS CAPITAL BANK U.S. BANK NATIONAL ASSOCIATION, as Administrative Agent, Issuing By Bank, and Arranger W. Reed Allton Senior Vice President By U.S. BANK NATIONAL ASSOCIATION Janice T. Thede Vice President By Janice T. Thede Vice President ANNEX I COMMITMENTS Comerica Bank $15,000,000 Texas Capital Bank $5,000,000 U.S. Bank National Association $35,000,000 Total Commitments $55,000,000 ANNEX II APPLICABLE LENDING OFFICES FOR BANKS COMERICA BANK: Eurodollar Lending Office: Domestic Lending Office: Comerica Bank Comerica Bank Suite 400 Suite 400 4100 Spring Valley 4100 Spring Valley Dallas, Texas 75244 Dallas, Texas 75244 Attention: T. Bancroft Mattei Attention: T. Bancroft Mattei Assistant Vice President Assistant Vice President Telephone: (972) 361-2545 Telephone: (972) 361-2545 Telecopy: (972) 361-2550 Telecopy: (972) 361-2550 TEXAS CAPITAL BANK: Eurodollar Lending Office: Domestic Lending Office: Texas Capital Bank Texas Capital Bank 4230 LBJ Freeway 4230 LBJ Freeway Dallas, Texas 75244 Dallas, Texas 75244 Attention: Lee Martinez Attention: Lee Martinez Vice President Vice President Telephone: (214) 560-4533 Telephone: (214) 560-4533 Telecopy: (214) 991-4560 Telecopy: (214) 991-4560 U.S. BANK NATIONAL ASSOCIATION: Eurodollar Lending Office: Domestic Lending Office: U.S. Bank National Association U.S. Bank National Association National Corporate Banking National Corporate Banking Division Suite 400 Suite 400 555 S.W. Oak Street 555 S.W. Oak Street Portland, Oregon 97204 Portland, Oregon 97204 Attention: Janice T. Thede, Attention: Janice T. Thede Vice President Vice President Telephone: (503) 275-4942 Telephone: (503) 275-4942 Telecopy: (503) 275-5428 Telecopy: (503) 275-5428 ANNEX III ADDRESSES FOR NOTICES THE BORROWER: Notice Address: Valhi, Inc. Suite 1700 5430 LBJ Freeway Dallas, Texas 5240-2697 Attention: Bobby D. O'Brien Vice President and Treasurer Telephone: (972) 233-1700 Telecopier: (972) 239-0142 THE AGENT: Notice Address: U.S. Bank National Association National Corporate Banking Division Suite 400 555 S.W. Oak Street Portland, Oregon 97204 Attention: Janice T. Thede Vice President Telephone: (503) 275-4942 Telecopy: (503) 275-5428 THE BANKS: COMERICA BANK: Notice Address: Comerica Bank Suite 400 4100 Spring Valley Dallas, Texas 75244 Attention: T. Bancroft Mattei Assistant Vice President Telephone: (972) 361-2545 Telecopy: (972) 361-2550 TEXAS CAPITAL BANK: Notice Address: Texas Capital Bank Suite 900 2100 McKinney Avenue Dallas, Texas 75201 Attention: W. Reed Allton Senior Vice President Telephone: (214) 932-6670 Telecopy: (214) 932-6604 U.S. BANK NATIONAL ASSOCIATION: Notice Address: U.S. Bank National Association National Corporate Banking Division Suite 400 555 S.W. Oak Street Portland, Oregon 97204 Attention: Janice T. Thede Vice President Telephone: (503) 275-4942 Telecopy: (503) 275-5428