EXECUTION COPY
THIRD AMENDMENT TO COMPANY AGREEMENT
This Third Amendment (this "Third Amendment") is dated as of October
19, 2000 between Amalgamated Collateral Trust, a Delaware business trust (the
"Trust"), Snake River Sugar Company, an Oregon cooperative corporation ("SRSC")
and The Amalgamated Sugar Company LLC, a Delaware limited liability company (the
"Company"), and is acknowledged by those certain lenders who have executed this
Third Amendment (the "Noteholders") and by U.S. Bank National Association.
RECITALS:
Whereas, ASC Holdings, Inc. (formerly known as The Amalgamated Sugar
Company) a Utah corporation ("AGM"), SRSC and the Company are parties to the
Company Agreement dated January 3, 1997, effective for tax and accounting
purposes as of December 31, 1996, as amended by AGM, SRSC, the Trust and the
Company pursuant to the First Amendment dated May 14, 1997 and a Second
Amendment dated November 30, 1998 (as so amended, the "Company Agreement");
Whereas, capitalized terms used in this Third Amendment shall have the
meanings given to them in the Company Agreement, except as otherwise provided in
this Third Amendment.
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendments to Definitions.
(a) The definition of Accrual contained in Article II of the
Company Agreement shall be and is hereby amended to read in its
entirety as follows:
"Accrual - means the sum of (i) the positive excess,
if any, of (A) the product of $2,224,781 times the cumulative
number of months which have elapsed during any Fiscal Year of
the Company, commencing with January 1, 1997, less (B) the
cash distributions to all Members pursuant to Section 9.3.1(a)
in connection with such months and less the cash distributions
pursuant to Section 9.3.1(b)(i) for the Fiscal Year relating
to such months, plus (ii) interest on any amount determined
pursuant to clause (i), compounded annually, at an annual rate
of 10.145%, calculated on a daily basis from the date cash
distributions for such month are or would have been made
pursuant to Section 9.3.1(a) to the date the Accrual relating
to such date is actually distributed to the Members pursuant
to Section 9.3.1; provided, however, that the Deferral and the
Insurance Deferral shall not be included in any Accrual;
provided further, however, that commencing on April 1, 2000,
interest pursuant to clause (ii) shall be at an annual rate of
6.49% and shall no longer be compounded, but all interest
accrued prior to April 1, 2000 (including compounded interest)
shall continue to be included in the determination of Accrual
and provided further, however, that no interest (including
compounded interest) shall continue to bear interest pursuant
to clause (ii) subsequent to March 31, 2000."
(b) The definition of Accrual Threshold contained in Article
II of the Company Agreement shall be and hereby is amended to read in
its entirety as follows:
"Accrual Threshold - means (i) from January 1, 1997
to April 14, 2000, an amount equal to $10,526,316; (ii) on
April 15, 2000 and on the 15th of each of the following eight
months, the Accrual Threshold shall be increased by an amount
equal to $555,555.55, to a total of $15,526,316 at December
15, 2000; (iii) the Accrual Threshold shall be further
increased on the 15th of each of the following twelve months
by an amount equal to $416,666.67, to a total of $20,526,316
at December 15, 2001; and (iv) beginning with the Company's
2002 Fiscal Year and continuing until the date of the
Principal Reduction, the Accrual Threshold will be further
increased up to the amount of the Beet Payment Withholding
relating to such Fiscal Year (with such increase to be applied
ratably during the 12 months of such Fiscal Year on the 15th
day of each such month); provided, however, that any increase
under clause (iv) shall never exceed $3,000,000 in the
aggregate in any given Fiscal Year notwithstanding any
increase or lack of increase in any prior Fiscal Year, and
provided further, however, that there shall be no increase
pursuant to clause (iv) for any given Fiscal Year if SRSC's
Board of Directors shall have failed to irrevocably approve
the SRSC Annual Irrevocable Cash Plan for such Fiscal Year by
January 15th of such Fiscal Year."
(c) The definition of Subordinated Principal Reduction
contained in Article II of the Company Agreement shall be and is hereby
amended to read in its entirety as follows:
"Subordinated Principal Reduction - means, the
repayment of all principal, interest and other amounts owing
on the SRSC Subordinated Debt."
(d) The definition of Deferral contained in Article II of the
Company Agreement shall be and is hereby amended to read in its
entirety as follows:
"Deferral - means Deferral A, together with Deferral
B and Deferral C."
(e) The definition of Retained Amounts contained in Article II
of the Company Agreement shall be and is hereby amended to read in its
entirety as follows:
"Retained Amounts - means the sum of (i) 95% of any
Accrual, (ii) 100% of any Deferral A, (iii) 95% of any
Deferral B, (iv) 80% of any Deferral C and (v) 100% of any
Insurance Deferral, in each case including any applicable
accrued interest."
(f) The definition of Voting Rights Agreement contained in
Article II of the Company Agreement shall be and is hereby amended to
read in its entirety as follows:
"Voting Rights Agreement - means the voting rights
and forbearance agreement dated as of May 14, 1997 among the
Trust, AGM as Company Trustee and the Collateral Agent (and
acknowledged by the Company), as the same may be amended from
time to time."
(g) The definition of Triggering Event contained in Article II
of the Company Agreement shall be and is hereby amended to read in its
entirety as follows:
"Triggering Event - means any failure by the
Management Committee or the Company to comply in all material
respects with any provision of this Company Agreement;
provided, however, that so long as the Company has promptly
notified the holders of the AGM Interest of the existence of
such a failure pursuant to Section 7.2.2(e), such failure
(other than a failure to comply with the provisions of Section
6.3(i), 6.3(ii), 6.3(xiv), 6.3(xv), 6.3(xx) and 7.2.3), if
capable of being cured, shall not be deemed to be a Triggering
Event unless such failure has not been cured within 30 days
after the holders of the AGM Interest have given the Company
notice."
(h) the definition of Beet Payment contained in Article II of
the Company Agreement shall be and is hereby amended to read in its
entirety as follows:
"Beet Payment" - means the sum of (i) payments by the Company to SRSC
for sugarbeets that would have been incurred if the Company made such
payments at the times and pursuant to the terms and conditions as set
forth in the Agreement attached as Exhibit D-7 to the Formation
Agreement, as such Exhibit D-7 may be amended from time to time, and
(ii) effective beginning for the crop year which commences October 1,
2000, incentive payments made by the Company to SRSC to harvest early
sugarbeets, provided, however, that the aggregate amount of such
incentive payments are equal to or less than the reduced transportation
costs resulting from the local processing of such early sugarbeets, and
provided further, however, that within 45 days following the completion
of each such crop year, the Company shall have delivered to each Member
a certificate, certified by a responsible financial officer of the
Company, detailing the aggregate amount of such incentive payments made
by the Company during the applicable crop year along with a calculation
showing the amount of reduced transportation costs resulting from the
delivery of such early sugarbeets."
(i) The following new definitions shall be and are hereby
added to Article II of the Company Agreement:
"SRSC Subordinated Debt - means SRSC's indebtedness
incurred pursuant to the Loan Security Agreement (the
"Subordinated Loan Agreement") dated as of January 3, 1997, to
be effective for tax and accounting purposes as of December
31, 1996 among SRSC, as Borrower, and Valhi, as Lender, as
amended."
"Beet Payment Withholding - means amounts withheld
from the Beet Payment, upon approval by the board of directors
of SRSC, for the purpose of achieving the required levels of
Distributable Cash consistent with the SRSC Annual Irrevocable
Cash Plan for any Fiscal Year."
"Deferral A - means the sum of (a) $30,546.18 plus
(b) the amounts that otherwise would have been distributed to
the holders of the AGM Interest pursuant to Section 9.3.1 but
for the provisions of Section 9.3.1(d)(i) and 9.3.1(d)(ii), in
each case plus interest at a rate of 10.145% per annum,
compounded annually, from the date such distribution would
otherwise have been paid to the holder of the AGM Interest
(or, in the case of the amount of $30,546.18, from May 14,
1997), provided, however, that any amount arising pursuant to
Section 9.3.1(b)(ii) shall bear interest at a rate of 5.0725%
per annum, compounded annually, and provided further, however,
that all amounts included in this Deferral A will not accrue
interest during the period from July 1, 2000 through December
31, 2002."
"Deferral B - means the amount of $3,450,607.00, plus
interest at a rate of 5.0725% per annum, compounded annually,
from March 27, 1998, provided, however, that this Deferral B
will not accrue interest during the period from July 1, 2000
through December 31, 2002."
"Deferral C - means the amount of $4,097,595.00, plus
interest at a rate of 5.0725% per annum, compounded annually,
from March 27, 1998, provided, however, that this Deferral C
will not accrue interest on or after July 1, 2000."
"SRSC Annual Irrevocable Cash Plan - means, starting
with the Company's 2001 Fiscal Year, an irrevocable action
actually approved by SRSC's Board of Directors by January 15th
of each Fiscal Year of the Company whereby, to the extent
required, SRSC's Board of Directors shall irrevocably approve
Beet Payment Withholdings in amounts sufficient so the
Company's actual Distributable Cash for such Fiscal Year
distributed to the holders of the AGM Interest, when combined
with debt service payments paid by SRSC to Valhi under the
SRSC Subordinated Debt during such Fiscal Year, will at least
equal the amount of interest payments due on the Valhi Loans
during such Fiscal Year, and such SRSC Annual Irrevocable Cash
Plan is evidenced, by delivery within five (5) Business Days
following its approval, of a certified copy of a SRSC Board of
Director's board resolution evidencing such irrevocable
approval to each of Valhi, the Trust, AGM, and the holders of
the outstanding SR Term Indebtedness."
2. Amendment to Section 6.3. A new Section 6.3(xx) shall be and hereby is added
as follows:
"(xx) Effective October 1, 2000, (Y) pay to SRSC any installment of the
aggregate Beet Payment 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 (as defined pursuant to the terms of SR Term Indebtedness)
reduction for such crop year permitted pursuant to the terms of SR Term
Indebtedness or (Z) pay to SRSC the final installment of the aggregate
Beet Payment 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.
3. Amendment to Section 8.2.3. Section 8.2.3 shall be and is hereby amended by
adding the phrase ", provided, however, that commencing January 1, 2000, SRSC
shall have no obligation to contribute such additional cash amount to the
Company with respect to any Fiscal Year for which SRSC's board of directors
shall have irrevocably approved a SRSC Annual Irrevocable Cash Plan related to
such Fiscal Year" immediately after the phrase "220,000 acres less the number of
acres from which SRSC contracted sugarbeets to the Company during such Fiscal
Year".
4. Amendment to Sections 9.1.1(c), 9.1.2(d) and 13.3.2(d)(ii). The phrase
"Section 9.3.1(b)(iii)" contained in Sections 9.1.1(c), 9.1.2(d) and
13.3.2(d)(ii) of the Company Agreement shall be and is hereby amended to read
"Section 9.3.1(b)(v)".
5. Amendment to Section 9.3.1(b). Section 9.3.1(b) of the Company Agreement
shall be and hereby is amended to read in its entirety as follows:
"(b) Within 10 days following the completed audit of the books
of the Company for each Fiscal Year commencing with Fiscal Year 1997,
the Company will determine its actual Distributable Cash for such
Fiscal Year and provide written notice of such determination to each
Member. If the Company's actual Distributable Cash for such Fiscal Year
(based on such audit) exceeds amounts previously distributed to Members
for such Fiscal Year pursuant to Section 9.3.1(a) above, then, within
30 days following such audit, the Company shall distribute to its
Members cash in an aggregate amount equal to 100% of such actual
Distributable Cash for such Fiscal Year (based on the Company's audit)
less amounts actually distributed pursuant to Section 9.3.1(a) above.
Such distributions shall be paid in the following percentages and
priority:
(i) 95% to the holders of the AGM Interest and 5% to the
holders of the SR Interest, until the Members have received,
pursuant to this Section 9.3.1(b)(i) and Section 9.3.1(a),
cash distributions for such Fiscal Year in an aggregate amount
equal to the lesser of (A) the Company's Distributable Cash
for such Fiscal Year and (B) $26,697,372 plus any unpaid
Accrual as of the beginning of such Fiscal Year, and
(ii) next, 95% to the holders of the AGM Interest and 5% to
the holders of the SR Interest, until such holders have
received an aggregate amount of $8,888,261 (on a cumulative
basis for all Fiscal Years of the Company commencing with
Fiscal Year 1998), provided that the Members shall have no
right to any distribution pursuant to this Section
9.3.1(b)(ii) for any Fiscal Year following the Company's 2002
Fiscal Year, whether or not the Members have received all or
any part of the distribution pursuant to this Section
9.3.1(b)(ii) (provided that this shall not affect the Member's
rights to receive any Deferral amount after the Company's 2002
Fiscal Year, to the extent such Deferral amount arose during
or prior to the Company's 2002 Fiscal Year), and
(iii) next, 100% to the holders of the SR Interests until such
holders have received an aggregate amount equal to the
aggregate Beet Payment Withholdings actually withheld by the
Company since October 19, 2000 (or, for periods between
January 1, 1997 and October 18, 2000, the equivalent thereof),
net of the aggregate Unit Retain (as defined pursuant to the
terms of SR Term Indebtedness) reduction since January 1, 1997
from the use of SRSC's cash as permitted by the terms of SR
Term Indebtedness.
(iv) next, 20% to the holders of the AGM Interest and 80% to
the holders of the SR Interest until the holders of the AGM
Interest have received an aggregate amount equal to the dollar
amount calculated by subtracting the amount of interest
actually accrued on the SRSC Subordinated Debt from April 1,
2000 from the interest which otherwise would have accrued on
the SRSC Subordinated Debt from April 1, 2000 absent the
amendment to the terms of the SRSC Subordinated Debt dated
October 19, 2000.
(v) next, 5% to the holders of the AGM Interest and 95% to the
holders of the SR Interest for the Company's 1997 Fiscal Year
through and including the 2002 Fiscal Year, or 10% to the
holders of the AGM Interest and 90% to the holders of the SR
Interest, for the Company's 2003 Fiscal Year and thereafter.
To the extent the amounts distributed to the Members pursuant to
Section 9.3.1(a) above exceed the Company's actual Distributable Cash
for such Fiscal Year (based on the Company's audit), the Members shall
be obligated to return to the Company, within 10 days following the
completed audit of the books of the Company, an amount of cash equal to
any excess of the aggregate amount actually distributed during such
Fiscal Year to each Member (pursuant to Section 9.3.1(a) above) over
such Member's respective share of the Company's actual Distributable
Cash. The parties agree that, in the event any Member of the Company is
obligated to return any amounts pursuant to the provisions of this
Section 9.3.1(b), the Company may, at its option, withhold such amounts
from amounts to be distributed to such Member pursuant to Section 9.3.1
or otherwise, provided, however, that in the case of the Trust, so long
as the notes issued pursuant to the Note Purchase Agreements are
outstanding, the Company shall not withhold an amount which would cause
the Trust to receive an amount, in any month, that is less than the
scheduled payments of interest and principal on such notes."
6. Amendment to Section 9.3.1(d). Section 9.3.1(d) of the Company Agreement
shall be and is hereby amended to read in its entirety as follows:
"(d) Notwithstanding the foregoing:
(i) the holders of the AGM Interest may not receive any
distribution for either of the Company's 1997 or 1998 Fiscal
Years that, when added to all other distributions for such
Fiscal Year, will exceed an aggregate of $25,362,500;
(ii) until the first distribution date following the date of
the Subordinated Principal Reduction, no amount shall be
distributed to the holders of the AGM Interest pursuant to the
provisions of Sections 9.3.1(b)(ii), (b)(iv) and (b)(v) above,
but instead such amounts shall be paid dollar for dollar to
the holders of the SR Interest at the times set forth in
Section 9.3.1(a) or Section 9.3.1(b), as appropriate;
(iii) following the date of the Subordinated Principal
Reduction, amounts which otherwise would have been distributed
to the holders of the SR Interest pursuant to Section
9.3.1(b)(ii) through Section 9.3.1(b)(v) shall be reduced, and
such distributions shall instead be paid dollar for dollar as
follows:
(A) first, 100% to the holders of the AGM
Interest until such holders have received an
aggregate amount equal to the amount of
Deferral A,
(B) next, 95% to the holders of the AGM Interest
and 5% to the holders of the SR Interest
until such holders have received an
aggregate amount equal to the amount of
Deferral B,
(C) next, 80% to the holders of the AGM Interest
and 20% to the holders of the SR Interest
until such holders have received an
aggregate amount equal to the amount of
Deferral C."
7. Amendment to Section 9.3.2. The first sentence of Section 9.3.2 shall be and
is hereby amended to read in its entirety as follows:
"Except as provided below, the Company shall distribute any Distributable Cash
from a Major Capital Event, (i) first, to the Members in an amount equal to any
unpaid Accrual, 95% to the holders of the AGM Interest and 5% to the holders of
the SR Interest, (ii) second, to the holders of the AGM Interest in an amount
equal to any Insurance Deferral, (iii) third, to the holders of the AGM Interest
in an amount equal to any Deferral A, (iv) fourth, to the Members in an amount
equal to any Deferral B, 95% to the holders of the AGM Interest and 5% to the
holders of the SR Interest, (v), fifth, to the Members in an amount equal to any
Deferral C, 80% to the holders of the AGM Interest and 20% to the holders of the
SR Interest, (vi) sixth, to the Members pro rata in accordance with their
Sharing Ratios, until each Member has received an amount under this Section
9.3.2 equal in the aggregate to the Capital Contribution made by each Member,
and (vii) seventh, to the Members in the percentages then in effect under
Section 9.3.1(b)(v)."
8. Amendment to Section 16.
(a) The following sentence is added immediately after the second
sentence of Section 16.1:
"In addition, to the extent that SRSC's Board of Directors
shall have approved the SRSC Annual Irrevocable Cash Plan for any given
Fiscal Year, the Company and its Members agree and acknowledge that
money damages may not be an adequate remedy for any failure by the
Company to distribute to its Members its Distributable Cash for such
Fiscal Year in amounts sufficient to comply with such Fiscal Year's
SRSC Annual Irrevocable Cash Plan, to comply with the provisions of
Section 6.3(xx) or any failure by the Company to otherwise give full
effect to such Fiscal Year's SRSC Annual Irrevocable Cash Plan, and
that the holders of the AGM Interest may in their sole discretion apply
to any court of law or equity or competent jurisdiction for specific
performance by the Company to distribute to its Members its
Distributable Cash for such Fiscal Year in amounts sufficient to comply
with such Fiscal Year's SRSC Annual Irrevocable Cash Plan, to comply
with the provisions of Section 6.3(xx) 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."
(b) Section 16.2.1 of the Company Agreement is hereby amended to read
in its entirety as follows:
"16.2.1 In addition to any other remedies provided by this
Company Agreement, if at any time the unpaid Accrual exceeds the
Accrual Threshold, or upon the occurrence of a Triggering Event, the
holders of the AGM Interest voting separately as a class shall have the
right to elect a majority of the representatives to the Management
Committee. Whenever the holders of the AGM Interest shall be entitled
to elect such representatives in accordance with the terms of this
Section 16.2, then at the request of a holders of a Majority of the AGM
Interest, the secretary of the Company (or if at the time the Company
has no secretary, then the chief executive officer or president of the
Company) shall call a special meeting of the holders of the AGM
Interest, such special meeting to be held within 60 days after the date
on which the Accrual is equal to or exceeds the Accrual Threshold or
such Triggering Event occurs and at the request of the holders of a
Majority of the AGM Interest, for the purpose of enabling the holders
of the AGM Interest to elect such representatives to the Management
Committee; provided, however, that such special meeting need not be
called if the holders of the AGM Interest have duly elected
representatives by a written consent or power of attorney executed by
holders of at least a Majority of the AGM Interest or otherwise. At any
such special meeting, the presence, in person or by proxy, of a
Majority of the AGM Interest shall be required and be sufficient to
constitute a quorum for the election of any Management Committee
representative and the affirmative vote of Majority of the AGM Interest
so present at such meeting shall be sufficient to elect any such
representative."
(c) A new Section 16.2.3 shall be and is hereby added to the Company
Agreement as follows:
"Notwithstanding the foregoing, the holders of the AGM
Interest hereby waive any rights they may have under this Section 16.2
of the Company Agreement by reason of the failure of the Company to pay
a distribution pursuant to Section 9.3.1(a) during the period from
April 15, 2000 through the effective date of the Third Amendment, or by
reason of the unpaid Accrual exceeding the Accrual Threshold during the
period from April 15, 2000 through the effective date of the Third
Amendment."
9. Conditions Precedent. Each of the following shall be considered a condition
precedent to the effectiveness of this Third Amendment:
(a) SRSC's Board of Directors shall have approved on June 15,
2000, the plan of irrevocably approving by January 15 of each Fiscal
Year of the Company, Beet Payment Withholdings in an amount sufficient
to generate a level of Distributable Cash to be paid to the AGM
Interest holder for such Fiscal Year, which, when combined with the
debt service payments paid by SRSC to Valhi under the SRSC Subordinated
Debt during such Fiscal Year, will at least equal the amount of
interest payments due on the Valhi Loans during such Fiscal Year.
Additionally, on June 15, 2000, SRSC's Board of Directors will have
irrevocably approved a level of Beet Payment Withholdings for the year
2000 such that the level of Distributable Cash to be paid to the AGM
Interest holder for the Fiscal Year 2000, when combined with the debt
service payments made by SRSC on the SRSC Subordinated Debt during such
Fiscal Year, will at least equal the amount of interest payments due on
the Valhi Loans during such Fiscal Year. Each of SRSC Board of Director
actions shall be evidenced by a certified copy of such SRSC Board of
Director's board resolutions evidencing such actions.
(b) SRSC will have made modifications to the covenants
contained in the Note Purchase Agreements and all related documentation
consistent with this Third Amendment to the Company Agreement and that
certain Third Amendment to the Amended and Restated Subordinated Loan
Agreement of even date, which modifications must be satisfactory to
Valhi in all material respects.
(c) All parties thereto shall execute the Third Amendment to
the Subordinated Loan Agreement and the related Contingent Subordinate
Pledge Agreement, Contingent Subordinate Security Agreement and
Contingent Subordinate Collateral Agency and Paying Agency Agreement.
(d) All parties thereto shall have executed and delivered to
all other parties thereto that certain Master Agreement dated October
19, 2000, by and among the parties hereto, among others.
10. Condition to Continuing Effectiveness. The parties hereto agree and
acknowledge that if at any time following the execution of this Third Amendment,
either (i) SRSC's Board of Directors shall fail to approve by January 15th of
any year the SRSC Annual Irrevocable Cash Plan for such Fiscal Year or (ii) the
unpaid Accrual exceeds the Accrual Threshold (as adjusted by this Third
Amendment), then, at the option of the holders of the AGM Interest in their sole
discretion, which option may be exercised by said holders by giving notice to
SRSC and the Company pursuant to Section 15.6 the Company Agreement, this Third
Amendment shall immediately become retroactively null and void and the terms of
the Company Agreement shall retroactively be as in effect immediately prior to
the execution of this Third Amendment; provided, however, that any such
nullification of this Third Amendment shall not relieve either the Company or
SRSC of their respective obligations to fully carry out and take all actions
provided for and consistent with any SRSC Annual Irrevocable Cash Plan
previously approved by SRSC's Board of Directors for any given Fiscal Year, and
the holders of the AGM Interest shall retain their rights pursuant to Section
8(a) hereof regardless of whether or not the holders of the AGM Interest
exercise their rights pursuant to this Section 10.
11. Representations and Warranties. Each of the parties represents and warrants
that the execution, delivery and performance by such party of this Third
Amendment are within its powers, have been duly authorized by all necessary
action and do not and will not contravene or conflict with any provision
applicable to such party, the charter, the declaration of trust with bylaws of
such party, or any order, judgment or decree of any Court or other agency of
government or any contractual obligation binding on such party, and this Third
Amendment and the Company Agreement, as amended as of the date hereof, are the
legal, valid and binding obligations of such party and enforceable against such
party in accordance with their terms.
12. Miscellaneous.
(a) Captions. Section captions used in this Third Amendment are
for convenience only, and shall not affect the construction of
this Third Amendment.
(b) Governing Law. This Third Amendment shall be a contract made
under and governed by the laws of the State of Delaware,
without regard to conflict of law principles.
(c) Counterparts. This Third Amendment may be executed in any
number of counterparts, and each such counterpart shall be
deemed to be an original, but all such counterparts shall
together constitute but one and the same amendment.
(d) Successors and Assigns. This Third Amendment shall be binding
upon the parties and their respective successors and assigns,
and shall inure to the sole benefit of the parties their
successors and assigns.
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<PAGE>
IN WITNESS WHEREOF, This Third Amendment to the Company Agreement is
dated as of the day and year first above written.
AMALGAMATED COLLATERAL TRUST
By: ASC HOLDINGS, INC., as Company Trustee
By:/s/ Steven L. Watson
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Name: Steven L. Watson
Title: President
SNAKE RIVER SUGAR COMPANY
By:/s/ Lawrence L. Corry
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Name:
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Title:
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THE AMALGAMATED SUGAR COMPANY LLC
By:/s/ David L. Budge
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Name:
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Title:
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ACKNOWLEDGED:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Joseph Alouf
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Its:
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CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA INVESTMENTS, INC.
By: /s/ Stephen H. Wilson
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Its:
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LIFE INSURANCE COMPANY OF NORTH AMERICA
By: CIGNA INVESTMENTS, INC.
By: /s/ Stephen H. Wilson
-------------------------------
Its:
--------------------------------------
MINNESOTA LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Annette Masterson
-------------------------------
Its:
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THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By: LINCOLN INVESTMENT MANAGEMENT, INC.
Its Attorney-in-Fact
By:/s/ Annette M. Teders
-----------------------------------------
Its:
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<PAGE>
LINCOLN LIFE & ANNUITY COMPANY
OF NEW YORK
By: LINCOLN INVESTMENT MANAGEMENT, INC.
Its Attorney-in-Fact
By:/s/ Annette M. Teders
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Its:
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U.S. BANK NATIONAL ASSOCIATION, as agent
under that certain Working Capital Agreement dated
as of January 3, 1997, as amended
By: /s/ Janice T. Thede
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Its:
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