First Amendment to
Subordination Agreement
This First Amendment dated as of October 19, 2000 (this "First
Amendment") to the Subordination Agreement dated as of May 14, 1997 is between
Snake River Sugar Company, an Oregon cooperative ("Borrower"), and Valhi, Inc.,
a Delaware corporation ("Subordinated Creditor"), in favor of the holders from
time to time of the Senior Notes referred to below (the "Senior Debt Holders")
and First Security Bank, National Association, as Collateral Agent for the
Senior Debt Holders.
PRELIMINARY STATEMENTS
A. Pursuant to those certain Note Purchase Agreements, each
dated May 14, 1997, as amended as of November 30, 1998 and as of October 19,
2000 (as so amended, and as otherwise amended, amended and restated,
supplemented or otherwise modified from time to time, the "Note Purchase
Agreements"), between Borrower and the Senior Debt Holders, Borrower has issued
to the Senior Debt Holders $100,000,000 aggregate principal amount of its 10.80%
Senior Notes due April 30, 2009 (the "Senior Notes").
B. Pursuant to a Loan and Security Agreement dated as of
January 3, 1997, as amended and restated by the Subordinated Loan Agreement
dated as of May 14, 1997, and as further amended as of November 30, 1998 and the
date hereof (as so amended, and as otherwise amended, amended and restated,
supplemented or otherwise modified from time to time, the "Subordinated
Agreement"), between Subordinated Creditor and Borrower, Borrower has issued to
Subordinated Creditor certain subordinated notes (the "Subordinated Notes").
C. Pursuant to the Subordination Agreement dated as of May 14,
1997 between Borrower and Subordinated Creditor (the "Original Agreement," the
terms defined therein and not otherwise defined herein being used herein as
therein defined), Borrower and Subordinated Creditor have made certain
provisions in favor of the Senior Debt Holders for the subordination of the
Subordinated Notes to the Senior Notes.
D. In connection with the Second Amendment to Note Purchase
Agreements between Borrower and the Senior Debt Holders (the "Second Amendment
to Note Purchase Agreements") and the Third Amendment to Subordinated Loan
Agreement between Borrower and Subordinated Creditor, each dated as of the date
hereof, Borrower and Subordinated Creditor now desire to amend the Original
Agreement in the respects, but only in the respects, hereinafter set forth.
NOW, THEREFORE, upon the full and complete satisfaction of the
conditions precedent to the effectiveness of this First Amendment set forth in
Section 3 hereof, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Borrower and Subordinated Creditor
do hereby agree as follows:
Section 1. Amendments
1.1 Section 4.a of the Original Agreement shall be and hereby is amended in its
entirety as follows:
"a. If Subordinated Creditor receives any payment or
Distribution of Assets of Borrower which Subordinated Creditor is not entitled
to retain or receive under the provisions of this Agreement or the Subordinated
Agreement, such payment or assets shall be delivered forthwith by Subordinated
Creditor to the Collateral Agent for the benefit of the Senior Debt Holders for
application to the Senior Debt, in the form received except for the addition of
any endorsement or assignment necessary to effect a transfer of all rights
therein to the Collateral Agent for the benefit of the Senior Debt Holders. The
Collateral Agent for the benefit of the Senior Debt Holders is irrevocably
authorized by Subordinated Creditor to supply any required endorsement or
assignment which may have been omitted. Until so delivered, any such payment or
collateral shall be held by Subordinated Creditor in trust for the Senior Debt
Holders."
1.2 The definition of "Specified Default" appearing in Section 1.c of the
Original Agreement shall be and is hereby amended by deleting the word "and"
appearing at the end of clause (v) thereof, deleting the punctuation mark "." at
the end of clause (vi) thereof and replacing it with "; and" and adding the
following after clause (vi) thereof:
"(vii) Sections 11(p), 11(q) and 11(r)."
Section 2. Representations and Warranties of Company
Subordinated Creditor represents and warrants to the Senior
Debt Holders (which representation and warranty shall survive the execution and
delivery of this First Amendment) that all the representations and warranties
contained in Section 9 of the Original Agreement are true and correct in all
material respects with the same force and effect as if made by Subordinated
Creditor on and as of the date hereof; except, however, that the Subordinated
Agreement was amended pursuant to the Second Amendment to Subordinated Loan
Agreement dated as of November 30, 1998, and the Subordinated Agreement will be
amended pursuant to the Third Amendment to Subordinated Loan Agreement dated as
of the date hereof.
Section 3. Conditions to Effectiveness of this First Amendment.
This First Amendment shall become effective in accordance with
Section 3 of the Second Amendment to Note Purchase Agreements.
Section 4. Miscellaneous
4.1 This First Amendment shall be construed in connection with and as part of
the Original Agreement, and except as modified and expressly amended by this
First Amendment, all terms, conditions, and covenants contained in the Original
Agreement are hereby ratified and shall be and remain in full force and effect.
4.2 Any and all notices, requests, certificates and other instruments executed
and delivered after the execution and delivery of this First Amendment may refer
to the Original Agreement without making specific reference to this First
Amendment, but nevertheless all such references shall include this First
Amendment unless the context otherwise requires.
4.3 The descriptive headings of the various Sections or parts of this First
Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
4.4 This First Amendment shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the law of the State of New
York, excluding choice-of-law principles of the law of such State which would
require the application of the laws of a jurisdiction other than such State.
4.5 This First Amendment may be executed in any number of counterparts, each
executed counterpart constituting an original, but all together only one
agreement.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, Borrower and Subordinated Creditor have
caused this First Amendment to be duly executed and delivered for the benefit of
the Senior Debt Holders by their respective officers thereunto duly authorized
as of the date first written above.
SNAKE RIVER SUGAR COMPANY
By: /s/ David L. Budge
Name:
---------------------------------------------
Title:
---------------------------------------------
VALHI, INC.
By: /s/ Steven L. Watson
Name:
---------------------------------------------
Title:
---------------------------------------------
<PAGE>
Accepted this 19th day of October, 2000:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Joseph Alouf
Name:
-----------------------------------------------
Title:
----------------------------------------------
<PAGE>
Accepted this 19th day of October, 2000:
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By CIGNA Investments, Inc.
By: /s/ Stephen H. Wilson
----------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
<PAGE>
Accepted this 19th day of October, 2000:
LIFE INSURANCE COMPANY OF NORTH AMERICA
By CIGNA Investments, Inc.
By: /s/ Stephen H. Wilson
Name:
-----------------------------------------------
Title:
----------------------------------------------
<PAGE>
Accepted this 19th day of October, 2000:
THE MINNESOTA LIFE INSURANCE COMPANY
By Advantus Capital Management, Inc.
By: /s/ Guy M. deLambert
-----------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
<PAGE>
Accepted this 19th day of October, 2000:
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By Lincoln Investment Management, Inc.
Its Attorney-In-Fact
By: /s/ Annette Teders
-------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
<PAGE>
Accepted this 19th day of October, 2000:
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By Lincoln Investment Management, Inc.
Its Attorney-In-Fact
By: /s/ Annette M. Teders
----------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
<PAGE>
Accepted this 19th day of October, 2000:
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Collateral Agent
By: /s/ Val Orton
---------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
