EXECUTION COPY
EXHIBIT 10.2
FIRST AMENDMENT TO DEPOSIT TRUST AGREEMENT
This First Amendment to Deposit Trust Agreement ("First Amendment")
relating to the Amalgamated Collateral Trust, dated as of October 14, 2005,
among ASC Holdings, Inc., a Utah Corporation (the "Depositor"), and Wilmington
Trust Company, a Delaware banking corporation (in its individual capacity,
"Wilmington"), and acknowledged by Snake River Sugar Company ("Secured Party"),
an Oregon cooperative, amends that certain Deposit Trust Agreement (the "Deposit
Trust Agreement") dated as of May 14, 1997 among Depositor, as a
Certificateholder and as the Company Trustee, and Wilmington, as Resident
Trustee. All references to this Deposit Trust Agreement shall mean the Deposit
Trust Agreement, as amended by the First Amendment. Capitalized terms not
otherwise defined herein shall have the meanings ascribed to such terms in the
Deposit Trust Agreement.
In consideration of the mutual agreements, covenants and representations
contained herein, the parties hereto agree as follows:
Section 1. DEFINITIONS.
1.1. The following capitalized terms contained in Section 1.1 of this
Deposit Trust Agreement are hereby amended in their entirety to read as follows:
"Collateral Agent" means Northwest Farm Credit Services, FLCA, in its capacity
as the agent for the purchasers of the Senior Notes issued pursuant to the Note
Purchase Agreement.
"Company Agreement" means the Amended and Restated Company Agreement of the LLC
dated as of October 14, 2005, as it may hereafter be amended, supplemented,
restated or otherwise modified from time to time.
"Effective Date" has the meaning stated in Section 3.2 of this Deposit Trust
Agreement.
"Note Purchase Agreement" means the Note Purchase Agreement dated as of October
17, 2005, among the Agent, Secured Party and the purchasers named therein,
pursuant to which the Secured Party issued its Senior Notes, as they may
hereafter be amended, supplemented, restated or otherwise modified from time to
time.
"Senior Notes" means the 7.61% Senior Notes due September 30, 2012 in the
original aggregate principal amount of $100 million, issued on October 17, 2005
by the Secured Party pursuant to the Note Purchase Agreement.
"Snake Pledge Agreement" means that certain Pledge and Security Agreement, dated
as of October 17, 2005 between the Secured Party and the Collateral Agent
pursuant to which the Secured Party has assigned to the Collateral Agent, for
the benefit of the holders of the Senior Notes, as collateral security for the
Secured Party's obligations under the Note Purchase Agreement, all of Secured
Party's rights, titles and interest in, to and under (i) this Deposit Trust
Agreement, (ii) the Snake River Loan Notes and (iii) the SPT Guaranty and all
collateral granted to the Secured Party in connection with the SPT Guaranty and
the Snake River Loan Notes, including, without limitation, the AGM Interest
pledged to the Secured Party pursuant to the SPT Pledge Agreement and rights to
certain distributions with respect thereto.
"SPT Guaranty" means the Second SPT Guaranty dated as of October 14, 2005 issued
by the Trust in favor of Secured Party, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"SPT Pledge Agreement" means the Second Pledge Agreement (SPT) dated as of
October 14, 2005 between the Trust and Secured Party, as the same may be
amended, supplemented, restated or otherwise modified from time to time.
"Valhi Entity Pledge Agreement" means the Second Amended and Restated Pledge
Agreement dated as of October 14, 2005 between Depositor and Secured Party.
1.2. The definitions of "Indemnification Pledge Agreement," "Voting Rights
Agreement" and "Voting Rights Notice" contained in Section 1.1 of this Deposit
Trust Agreement are each hereby deleted.
1.3. References to the term "Note Purchase Agreements" in this Deposit
Trust Agreement shall be deemed to be a reference to the Note Purchase
Agreement. Sction 2. AMENDMENTS.
2.1 Section 2.1(b). Section 2.1(b) of this Deposit Trust Agreement is
hereby amended in its entirety to read as follows:
"(b) The principal objects and purposes for which the Trust is created and
established are (i) owning, managing, holding, encumbering and otherwise dealing
with the Trust Property, (ii) issuing and selling the Certificates of Beneficial
Interest and executing, delivering and performing this Deposit Trust Agreement,
as amended by this First Amendment, (iii) executing and delivering the SPT
Guaranty, the SPT Pledge Agreement and the Company Agreement, and performing its
obligations thereunder, and (iv) engaging in any activities necessary,
convenient or incidental to the foregoing."
2.2 Section 2.4(a). Section 2.4(a) of this Deposit Trust Agreement is
hereby amended in its entirety to read as follows:
"(a) All cash amounts held or received by the Trust with respect to the
Trust Property shall be applied by the Resident Trustee on the applicable
Distribution Date in the following order:
(i) first, to the extent not otherwise paid, to pay all amounts (if
any) then due and payable to the Resident Trustee, pursuant to Sections 7.1 and
7.3 of this Deposit Trust Agreement;
(ii) second, either (A) before receipt by the Resident Trustee of the
Senior Note Payoff Notice, the Resident Trustee shall segregate an amount equal
to the aggregate amount due on the Senior Notes on the next day set for payment
thereof (whether it be principal, interest or otherwise), as specified from time
to time by the Collateral Agent in a notice to the Resident Trustee (provided,
however, that in no event shall the amount so segregated by the Resident Trustee
with respect to any applicable Distribution Date exceed the amount owed by Valhi
on the next day set for payment by Valhi under the Snake River Loan Notes), and
on the due date of such payment, pay such amount to the Collateral Agent (or
pursuant to payment instructions received by the Resident Trustee from the
Collateral Agent) or (B) after receipt by the Resident Trustee of the Senior
Note Payoff Notice, the Resident Trustee shall segregate an amount equal to
$1,963,541.67 (the monthly amount of interest due on the Snake River Loan
Notes), and on the last Business Day of such month pay such amount to the
Secured Party;
(iii) third, to the extent not otherwise paid, to pay all operating
and administrative expenses of the Trust for which the Resident Trustee has
received invoices;
(iv) fourth, if the Resident Trustee shall not have received a Snake
Loan Default Notice, all amounts remaining after payment (or segregation) of the
amounts set forth in clauses (i) through (iii) above plus all amounts of
interest on the amounts segregated under clause (ii) or otherwise received by
the Resident Trustee since the last distribution pursuant to this clause (iv),
to the Certificateholders on the same day when the Resident Trustee make the
actual payment under clause (ii) above; and
(v) fifth, if the Resident Trustee shall have received a Snake Loan
Default Notice, all amounts remaining after payment (or segregation) of the
amounts set forth in clauses (i) through (iv) above plus all amounts of interest
on the amounts segregated under clause (ii) or otherwise received by the
Resident Trustee since the last distribution pursuant to this clause (v) or
clause (iv), to the Collateral Agent (before the receipt by the Resident Trustee
of the Senior Note Payoff Notice) or to the Secured Party (after receipt by the
Resident Trustee of the Senior Note Payoff Notice).
Secured Party agrees and acknowledges that Valhi shall be given credit on
the next day set for payment by Valhi under the Snake River Loan Notes for any
amount segregated pursuant to clause (ii) above and not subsequently distributed
to the Certificateholders."
2.3 Section 2.6. Section 2.6 of this Deposit Trust Agreement is hereby
amended in its entirety to read as follows:
"Further Assurances. The Certificateholders (and, after the receipt by the
Resident Trustee of a Snake Loan Default Notice, the Collateral Agent, or, after
receipt by the Resident Trustee of a Senior Note Payoff Notice, the Secured
Party) may direct in writing a Trustee to execute and deliver, and such Trustee
shall execute and deliver, all such other instruments, documents or certificates
and take all such other actions as the Certificateholders or the Collateral
Agent or the Secured Party, as applicable, may deem necessary or advisable to
give effect to the transactions contemplated hereby, including, as applicable
and without limitation, transactions contemplated by the Company Agreement or
any of the Transaction Documents (as defined in the Note Purchase Agreement),
and the taking of any such action by a Trustee in the presence of (or upon the
written or oral request of (if such oral request is promptly confirmed in
writing)) a Certificateholder or the Collateral Agent or the Secured Party, as
applicable, or such person's counsel shall evidence, conclusively but not
exclusively, the direction of such Certificateholder or the Collateral Agent or
the Secured Party, as the case may be; provided, however, the Resident Trustee
shall not be required to take any such action if it shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in the Resident Trustee incurring personal liability or is contrary to
the terms hereof or of any document contemplated hereby to which the Trust or
the Resident Trustee is a party or is otherwise contrary to law."
2.4 Section 27. Section 2.7 of this Deposit Trust Agreement is hereby
amended in its entirety to read as follows:
"2.7 Duties of Trustees
(a) Notwithstanding anything to the contrary contained in this Section 2.7
or elsewhere in this Deposit Trust Agreement, the Company Trustee shall not have
any power or authority in respect of Section 2.4 or any power or authority to
take any other actions hereunder which impair the ability of the Trust to
receive payments in respect of the AGM Interest or to make the payments required
by Section 2.4.
(b) Subject to the limitations provided in the Company Agreement and in
Sections 2.7(a), 2.7(h) and 2.8 and otherwise in this Deposit Trust Agreement,
until receipt by the Resident Trustee of a Snake River Loan Default Notice, the
Company Trustee shall have full and exclusive power and authority to carry out
the purposes of the Trust. An action taken by the Company Trustee in accordance
with its powers shall constitute the act of and serve to bind the Trust; in
dealing with the Company Trustee acting on behalf of the Trust, no Person shall
be required to inquire into the authority of the Company Trustee and may rely
conclusively on the power and authority of the Company Trustee as set forth in
this Deposit Trust Agreement. Without limiting the generality of the foregoing,
and subject to any limitation contained in the Company Agreement, the Company
Trustee shall have full and exclusive power and authority:
(i) to manage and determine all of the business and affairs of the
Trust, including, without limitation, making all decisions, not inconsistent
with the terms of this Deposit Trust Agreement, with respect to Trust Property;
(ii) to incur expenses which the Company Trustee reasonably deems
necessary or incidental to carry out any of the purposes of this Deposit Trust
Agreement;
(iii) to execute all documents or instruments, perform all duties and
exercise all powers, and do all things for and on behalf of the Trust which the
Company Trustee deems necessary or incidental to the foregoing not inconsistent
with the terms hereof; and
(iv) to exercise all rights and actions with respect to the AGM
Interest held as part of the Trust Property.
(c) Subject to the limitations provided in Sections 2.7(a), 2.7(h) and 2.8,
and otherwise in this Deposit Trust Agreement, the Company Trustee is authorized
to execute on behalf of the Trust any documents which the Company Trustee has
the power and authority to cause the Trust to execute pursuant to Section
2.7(b). The Company Trustee may, by power of attorney consistent with applicable
law, delegate to any other Person its power for the purposes of signing any
documents which the Company Trustee has power and authority to execute pursuant
to this Deposit Trust Agreement.
(d) A Trustee shall not have any right, power, duty or obligation to take
or refrain from taking any action under or in connection with this Deposit Trust
Agreement, except as expressly required or permitted by the terms of this
Deposit Trust Agreement or as expressly directed in written instructions
pursuant to Sections 2.6, 2.7(e), 2.7(f) or 2.7(h) hereof, and no implied
powers, duties or obligations shall be read into this Deposit Trust Agreement
against or on the part of any Trustee. A Trustee shall not be required to take
any action if such Trustee shall reasonably determine, or shall have been
advised by counsel, that such action is likely to result in personal liability,
or is contrary to the terms hereof or of any document contemplated hereby to
which the Trust or the Trustee is party, or is otherwise contrary to law.
(e) No Trustee shall take any action contrary to (or fail to take any
action if such failure would be contrary to) this Deposit Trust Agreement, the
Snake Pledge Agreement, the SPT Guaranty, the SPT Pledge Agreement, the Valhi
Entity Pledge Agreement, the Company Agreement or any other document
contemplated hereby or thereby to which the Trust is party, which the Trustee
has Actual Knowledge (without any duty of inquiry), or has been advised by
counsel, is in contravention of this paragraph (e).
(f) Subject to the limitations provided in the Company Agreement and in
Sections 2.7(a), 2.7(h) and 2.8, and otherwise in this Deposit Trust Agreement,
the Resident Trustee will take such action or shall refrain from taking such
action under this Deposit Trust Agreement or any document to which the Trust is
a party as it shall be directed by the Company Trustee pursuant to an express
provision of this Deposit Trust Agreement, which instruction shall be delivered
by the Company Trustee in accordance with Section 8.4 hereof; provided that,
upon receipt by the Resident Trustee of a Snake Loan Default Notice, (A) the
Resident Trustee will take such action or shall refrain from taking such action
under this Deposit Trust Agreement or any document to which the Trust is a party
as it shall be directed by the Collateral Agent or Secured Party (if the Senior
Note Payoff Notice has been received by the Resident Trustee) pursuant to an
express provision of this Deposit Trust Agreement, which instruction shall be
delivered by the Collateral Agent or Secured Party (if the Senior Note Payoff
Notice has been received by the Resident Trustee) in accordance with Section 8.4
hereof and (B) notwithstanding anything to the contrary in this Deposit Trust
Agreement the Resident Trustee shall not take any direction with respect to this
Deposit Trust Agreement, the Trust or any document to which the Trust is a party
from the Depositor, any Certificateholder (other than the Collateral Agent) or
any other Person.
(g) If, in performing its duties under this Deposit Trust Agreement, or any
document to which it or the Trust is a party, the Resident Trustee determines
that it requires or desires guidance regarding the application of any provision
of this Deposit Trust Agreement or any such document, then the Resident Trustee
shall promptly deliver a notice to the Company Trustee and the Secured Party
(or, as applicable, if the Resident Trustee shall have received a Snake Loan
Default Notice, to the Collateral Agent and the Secured Party (if the Senior
Note Payoff Notice has not been received by the Resident Trustee) or to the
Secured Party (if the Senior Note Payoff Notice has been received by the
Resident Trustee) in accordance with Section 8.4 hereof requesting written
instructions as to the course of action required by the Company Trustee, the
Collateral Agent or Secured Party, as applicable, and any action taken by the
Resident Trustee in reliance on such instruction shall be full and complete
authorization and protection.
(h) Prior to the time that the Resident Trustee shall have received a Snake
Loan Default Notice, the Company Trustee shall make any determination or
decision required pursuant to this Section 2.7, or, as applicable, at any time
after the Resident Trustee shall have received a Snake Loan Default Notice,
either the Collateral Agent (if the Senior Note Payoff Notice has not been
received by the Resident Trustee) or the Secured Party (if the Senior Note
Payoff Notice has been received by the Resident Trustee) shall make any
determination or decision required pursuant to this Section 2.7, as reflected in
instructions to the Resident Trustee delivered in accordance with Section 8.4
hereof. If the Resident Trustee does not receive such instructions within 10
Business Days after it has delivered notice pursuant to Section 2.7(g) and in
accordance with Section 8.4, or such shorter period of time set forth in such
notice, it shall refrain from taking any action with respect to the matters
described in such notice.
(i) The Resident Trustee shall furnish to the Certificateholders, the
Collateral Agent and the Secured Party, promptly upon receipt thereof, a
duplicate or copy of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Resident Trustee
and relating to the Trust, this Deposit Trust Agreement or the other parties
hereto; provided that the Resident Trustee need not forward documents to such
Person if such Person originated the documents or furnished them to the Resident
Trustee or is to receive any such documents from any Person other than the
Resident Trustee according to an express provision hereof or under any document
to which the Trust is a party.
(j) Notwithstanding anything to the contrary contained in this Deposit
Trust Agreement, the Resident Trustee shall not be required to take any such
action if it shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in the Resident Trustee incurring
personal liability or is contrary to the terms hereof or of any document
contemplated hereby to which the Trust or the Resident Trustee is a party or is
otherwise contrary to law. None of the Certificateholders, the Collateral Agent
or Secured Party or the Company Trustee shall direct the Resident Trustee to
take or refrain from taking any action contrary to this Deposit Trust Agreement,
or any document contemplated hereby to which the Trust is a party, nor shall the
Resident Trustee be obligated to follow any such direction, if given, which the
Resident Trustee has Actual Knowledge (without any duty of inquiry), or has been
advised by counsel, is in contravention of this paragraph (j)."
2.5 Section 3.1. Section 3.1 of this Deposit Trust Agreement is hereby
amended to add a new subsection (c) to read as follows:
"(c) Notwithstanding any provision in this Deposit Trust Agreement to the
contrary, and in addition to certain documents which the Company Trustee has
previously been authorized or directed to execute, the Company Trustee is hereby
authorized and directed, without the consent or approval of or other action by
any Person, to (i) execute and deliver on behalf of the Trust, the Amended and
Restated Company Agreement of the LLC dated as of October 14, 2005, the SPT
Guaranty dated as of October 14, 2005 and the SPT Pledge Agreement dated as of
October 14, 2005 and any UCC-1 financing statements requested by the Collateral
Agent and (ii) perform all such agreements and the Company Agreement."
2.6 Section 3.2(a). Section 3.2(a) of this Deposit Trust Agreement is
hereby amended in its entirety to read as follows:
"(a) Effective as of October 14, 2005 (the "Effective Date"), the Trust
hereby confirms that it has granted to the Secured Party a first priority
security interest in the Pledged Collateral (as defined in the SPT Pledge
Agreement) as provided in the SPT Pledge Agreement. The Trust acknowledges and
consents to the assignment by the Secured Party to the Collateral Agent of all
of the Secured Party's rights under the SPT Pledge Agreement, including all
rights in and to such Pledged Collateral."
2.7. Section 7.1. A new clause (h) is hereby added to Section 7.1 of this
Deposit Trust Agreement to read as follows:
"(h) Notwithstanding anything to the contrary contained in this Section
7.1, with respect to, under, or in connection with any agreement, document or
instrument related to or contemplated by this Deposit Trust Agreement and which
the Company Trustee has executed and delivered in its individual capacity and
not in its capacity as Company Trustee, the Company Trustee shall remain liable
in its individual capacity to the other party or parties to any such agreement,
document or instrument, in each case in accordance with the terms thereof, and
the Company Trustee shall not be protected against any liability to Secured
Party or Collateral Agent for which the Company Trustee would otherwise be
subject by reason of the Company Trustee's bad faith, willful misconduct or
gross negligence."
2.8 Section 8.12. Section 8.12 of this Deposit Trust Agreement is hereby
amended in its entirety to read as follows:
"8.12. Operations of the Trust. The Company Trustee will, and will cause
the Trust to, at all times, (i) keep all records of the Trust in a form separate
from the records of the Depositor, (ii) prepare and maintain, separate from the
Depositor, all financial statements, accounting records and tax documents
required of a Delaware statutory trust, (iii) keep the Trust's administrative
activities separate from the Depositor's (including using stationery that does
not resemble that of the Depositor), (iv) maintain bank accounts of the Trust in
the name of the Trust, and separate in all respects from those of the Depositor
and (v) otherwise maintain, to the extent necessary, the separate, distinct and
independent legal existence of the Trust under the Business Trust Statute from
the separate, distinct and independent legal existence of each of the Depositor
and the Company Trustee in order to prevent any applicable court involving
Federal or state bankruptcy, insolvency, reorganization or similar law from
disregarding such separate, distinct and independent legal existence of the
Trust or substantively consolidating the assets and liabilities of the Trust
with the assets and liabilities of the Depositor or the Company Trustee if the
Depositor or the Company Trustee become subject to the jurisdiction of any such
court. Furthermore, if the Depositor and the Company Trustee become subject to
the jurisdiction of any applicable court involving Federal or state bankruptcy,
insolvency, reorganization or similar law, the Resident Trustee will, and will
cause the Trust to, at all times, continue to segregate and distribute all cash
amounts held or received by the Trust with respect to the Trust Property
pursuant to the provisions of Section 2.4 of this Deposit Trust Agreement,
provided, however, that the Resident Trustee shall have no duty or obligation to
take such action, nor any liability for or in respect of such action or
inaction, as the case may be, to the extent the Resident Trustee shall have
become prevented from doing so pursuant to a final order of any such court or to
the extent the Resident Trustee is otherwise permitted to refrain from taking
such action pursuant to the provisions of this Deposit Trust Agreement,
including without limitation the provisions of Section 2.7(j) herein."
Section 3. REPRESENTATIONS AND WARRANTIES OF ASC. ASC, in its capacity as the
Depositor and as the Company Trustee, represents and warrants that:
(a) ASC is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, is duly qualified
as a foreign corporation and is in good standing in all additional jurisdictions
where such qualification is necessary under applicable law, and has the
corporate power and authority to own the properties it purports to own and to
execute and deliver this First Amendment and to perform the provisions hereof.
(b) The execution and delivery of this First Amendment by ASC and the
performance by ASC of its obligations under this First Amendment does not and
will not (i) contravene, result in any breach of, or constitute a default under,
or result in the creation of any Lien in respect of any of the Trust Property
under, any indenture, mortgage, deed of trust, loan, purchase or credit
agreement, lease, corporate charter or by-laws, or any other agreement or
instrument to which it is bound or by which ASC or the Trust Property may be
bound or affected, (ii) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or governmental authority applicable to ASC or the Trust Property or
(iii) violate any provision of any statute or other rule or regulation of any
governmental authority applicable to ASC or the Trust Property.
(c) Except as have been obtained, no consent, approval or authorization of,
or registration, filing or declaration with, any governmental authority or any
nongovernmental Person or entity, including, without limitation, any creditor,
lessor or stockholder, is required in connection with the execution, delivery or
performance by ASC of this Deposit Trust Agreement or the transactions
contemplated hereby or as a condition to the legality, validity or
enforceability of this Deposit Trust Agreement.
(d) This First Amendment has been duly authorized by all necessary
corporate action on the part of ASC, and this Deposit Trust Agreement is the
legal, valid and binding obligation of ASC, enforceable against it in accordance
with its terms, except as limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditor's rights generally, or general
principles of equity.
(e) There are no actions, suits or proceedings (including, without
limitation, arbitration and administrative proceedings) pending or, to the
knowledge of ASC or any officer of ASC, threatened against or affecting ASC or
the Trust Property in any court or before any arbitrator of any kind or before
or by any governmental authority that, individually or in the aggregate, if
determined adversely to ASC, could materially and adversely affect the ability
of ASC to perform its obligations under this Deposit Trust Agreement, and, to
the best knowledge of ASC or any officer of ASC, there is no basis for any such
action, suit or proceeding.
(f) ASC is not in default under any term of any agreement or instrument to
which it is a party or by which it or the Trust Property is bound, or any order,
judgment, decree or ruling of any court, arbitrator or governmental authority or
is in violation of any applicable law, ordinance, rule or regulation of any
governmental authority which violation or default, individually or in the
aggregate, could materially and adversely affect the ability of ASC to perform
its obligations under this Deposit Trust Agreement.
Section 4 REPRESENTATIONS AND WARRANTIES OF WILMINGTON. Wilmington, in its
capacity as the Resident Trustee, represents and warrants that:
(a) Wilmington is a banking corporation organized under the laws of the
State of Delaware, validly existing and in good standing under the laws of the
State of Delaware and has all corporate powers and all material governmental
licenses, authorization, consents and approvals required under the laws of the
State of Delaware to carry on its trust business as now conducted.
(b) The execution, delivery and performance by Wilmington, in its capacity
as Resident Trustee, of this First Amendment is within the corporate power of
Wilmington, have been duly authorized by all necessary corporate action on the
part of Wilmington (no action by its shareholders being required) and do not and
will not (i) violate or contravene any judgment, injunction, order or decree
binding on Wilmington or (ii) violate, contravene or constitute a default under
any provision of the certificate of incorporation or by-laws of Wilmington or of
any material agreement, contract, mortgage or other instrument binding on
Wilmington or (iii) result in the creation or imposition of any lien on the
Trust Property, attributable to Wilmington which is not related to the
administration of the Trust or the transactions pursuant to this First Amendment
or contemplated by this First Amendment.
Section 5 MISCELLANEOUS.
Section 5.1. SEVERABILITY. If any one or more of the covenants, agreements,
provisions or terms of this First Amendment shall be held invalid for any reason
whatsoever, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
First Amendment and shall in no way affect the validity or enforceability of the
other provisions of this First Amendment or of the Certificates of Beneficial
Interest or the rights of the Trustees or Certificateholders or of the Secured
Party or of the Collateral Agent.
Section 5.2. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD
TO ANY CONFLICTS OF LAW RULES), AND ALL LAWS OR RULES OF CONSTRUCTION OF SUCH
STATE SHALL GOVERN THE RIGHTS OF THE PARTIES TO THIS FIRST AMENDMENT AND THE
INTERPRETATION OF THE PROVISIONS OF THIS FIRST AMENDMENT.
Section 5.3. COUNTERPARTS. This First Amendment may be executed and
delivered in any number of counterparts, and such counterparts taken together
shall constitute one and the same instrument.
Section 5.4. HEADINGS. Section and subsection headings in this First
Amendment are included herein for convenience of reference only and shall not
constitute a part of this First Amendment for any other purpose or be given any
substantive effect.
Section 5.5. CONCERNING THE RESIDENT TRUSTEE.
(a) The Company Trustee hereby authorizes, empowers and directs the
Resident Trustee to execute and deliver this First Amendment and any and all
documents and/or instruments as may be necessary, desirable or convenient in
connection with, incidential to, or contemplated by this First Amendment. The
Company Trustee hereby certifies and confirms (i) that it is the sole
Certificateholder under the Deposit Trust Agreement, and (ii) that the foregoing
authorization and direction and the execution and delivery of such documents are
required or permitted under the Deposit Trust Agreement, are not contrary to the
terms of the Deposit Trust Agreement or of any document contemplated by the
Deposit Trust Agreement to which the Trust or the Resident Trustee is a party,
or is otherwise contrary to law, and are covered by the indemnification provided
under the Deposit Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this First
Amendment has been executed by Wilmington Trust Company not in its individual
capacity but solely in its capacity as Resident Trustee and in no event shall
Wilmington Trust Company in its individual capacity or as Resident Trustee have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Trust or any other Person hereunder or other documents
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Trust. For all purposes of this First Amendment, in the
performance of any duties or obligations of the Resident Trustee hereunder, the
Resident Trustee shall be entitled to the benefits of the terms and provisions
of the Deposit Trust Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered as of the date first above written.
ASC HOLDINGS, INC., as Depositor and Company Trustee
By: /s/Gregory M. Swalwell
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Gregory M. Swalwell
Vice President
WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Resident
Trustee
By: /s/Charrise Rodgers
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Charrise Rodgers
Vice President
ACKNOWLEDGED BY:
SNAKE RIVER SUGAR COMPANY, as Secured Party
By: /s/Dave Budge
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Dave Budge
Vice President
NORTHWEST FARM CREDIT SERVICES, FLCA, as Collateral Agent
By: /s/Jack Hetherington
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Jack Hetherington
Vice President