EXECUTION COPY
FIRST AMENDMENT TO VOTING RIGHTS AND FORBEARANCE AGREEMENT
This First Amendment to Voting Rights and Forbearance Agreement (this
"Amendment") is made this 19 day of October, 2000 by and among (i) Amalgamated
Collateral Trust, a Delaware business trust (the "SPT") created pursuant to the
Deposit Trust Agreement (the "Deposit Trust Agreement") dated as of May 14, 1997
between ASC Holdings, Inc., a Utah corporation ("Amalgamated"), Wilmington Trust
Company, as Resident Trustee (as defined on the Deposit Trust Agreement), and
Amalgamated, as Company Trustee (as defined on the Deposit Trust Agreement),
(ii) Amalgamated, as holder of the Certificate of Beneficial Interest issued by
the SPT, (iii) Amalgamated, as the Company Trustee under the Deposit Trust
Agreement, and (iv) First Security Bank, National Association, as Collateral
Agent (the "Collateral Agent") under the Collateral Agency Agreement dated as of
May 14, 1997 among Snake River Sugar Company, an Oregon agricultural cooperative
("Snake River"), the Collateral Agent and the purchasers (the "Purchasers")
referred to in the Note Purchase Agreements dated May 14, 1997, as such may be
amended or modified from time to time (the "Note Purchase Agreement"), between
the Purchasers and Snake River. Terms defined in the Note Purchase Agreements
and not otherwise defined herein shall have the meanings provided in the Note
Purchase Agreements.
PRELIMINARY STATEMENTS
The parties to this Amendment are parties to a Voting Rights and
Forbearance Agreement dated as of May 14, 1997 (the "Voting Rights Agreement").
The parties hereto have agreed to amend certain documents related to
the Voting Rights Agreement and wish to clarify that the Voting Rights Agreement
pertains to those related documents as amended.
NOW, THEREFORE, in consideration of the foregoing and for other good
and sufficient consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. The Voting Rights Agreement shall be amended as follows:
(a) All references to the "Company Agreement" in the Voting
Rights Agreement shall be to said Company Agreement as such may be
amended or modified from time to time.
(b) All references to the "Note Purchase Agreements" in the
Voting Rights Agreement shall be to said Note Purchase Agreements as
such may be amended or modified from time to time.
(c) All references to the "Senior Notes" in the Voting Rights
Agreement shall be to said Senior Notes as such may be amended or
modified from time to time.
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2. Representations and Warranties. Each of the parties represents and warrants
that the execution, delivery and performance by such party of this 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 of law applicable to such
party, the charter, declaration of trust or bylaws of such party, or any order,
judgment or decree of any court or other agency of government or any contractual
obligation binding upon such party, and the Voting Rights Agreement, as amended
as of the date hereof, is a legal, valid and binding obligation of such party
enforceable against such party in accordance with its terms.
3. Condition Precedent. The execution and delivery of that certain Master
Agreement dated October 19, 2000, by and among the parties hereto, among others,
shall be a condition precedent to the initial effectiveness of this Amendment.
4. General Provisions.
(a) All of the covenants and agreements contained in this
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.
(b) This Amendment, and the rights of the parties hereto,
shall be governed by and construed in accordance with the laws of the
State of Delaware.
(c) This 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.
(d) No amendment, modification, termination or waiver of any
provision of this Amendment, and no consent to any departure by the
Company Trustee therefrom, shall in any event be effective unless the
same shall be in writing and signed by the other parties hereto and, in
the case of any such amendment or modification, by the Company Trustee.
Any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
(e) If any provision of this 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 Amendment, and this Amendment shall continue in
all other respects to be valid and enforceable.
(f) Nothing herein shall limit in any way the rights and
remedies of the Collateral Agent under any of the Pledge Agreements.
(g) Except as specifically amended by this Amendment, the
Voting Rights Agreement shall remain in full force and effect and is
hereby ratified and confirmed.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
be effective as of the date first above written.
AMALGAMATED COLLATERAL TRUST
By: Wilmington Trust Company, not in
its individual capacity but solely as
Trustee
By: /s/ Charisse L. Rodgers
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Name:
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Title:
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ASC HOLDINGS, INC., individually and as
Company Trustee
By: /s/ Steven L. Watson
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Name: Steven L. Watson
Title: President
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Collateral Agent
By: /s/ C. Scott Nielsen
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Name:
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Title
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As of the first date written above, The Amalgamated Sugar Company LLC,
a Delaware limited liability company (the "Company"), hereby acknowledges and
agrees to be bound by the terms and provisions of the foregoing First Amendment
to Voting Rights and Forbearance Agreement; provided, however, that the Company
shall neither be a party to, nor a third party beneficiary of, the foregoing
agreement.
THE AMALGAMATED SUGAR
COMPANY LLC
By: /s/ David L. Budge
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Name:
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Title:
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