DEPOSIT TRUST AGREEMENT relating to AMALGAMATED COLLATERAL TRUST,
dated as of May 14, 1997, among ASC HOLDINGS, INC., a Utah corporation (the
"DEPOSITOR"), as a Certificateholder (as hereinafter defined) and as the Company
Trustee (as hereinafter defined), and WILMINGTON TRUST COMPANY, a Delaware
banking corporation (in its individual capacity, "WILMINGTON"), as Resident
Trustee (as hereinafter defined).{PRIVATE }
R E C I T A L S
The Depositor is the record and beneficial owner of the limited
liability company membership interest (the "AGM INTEREST") issued by Amalgamated
Sugar Company LLC, a Delaware limited liability company ("LLC"), identified as
the 94.7% Membership Interest in the Company Agreement of LLC dated as of
January 3, 1997 (as amended to the date hereof and as it may be amended,
supplemented, restated or otherwise modified from time to time, the "COMPANY
AGREEMENT"). Pursuant to an amendment to the Company Agreement dated the date
hereof (the "FIRST AMENDMENT TO COMPANY AGREEMENT"), the Trust will be admitted
as a substitute member of LLC upon the transfer of the AGM Interest by the
Depositor to the Trust pursuant to this Agreement.
The Depositor is a wholly owned indirect subsidiary of Valhi,
Inc. ("VALHI"), a Delaware corporation.
Valhi has issued to Snake River Sugar Company (the "SECURED
PARTY"), an Oregon cooperative, a Limited Recourse Promissory Note dated
January 3, 1997 in aggregate principal amount of $212,500,000 (the "Limited
Recourse Note") and a Subordinated Promissory Note (the "Subordinated Note")
dated January 3, 1997 in aggregate principal amount of $37,500,000
(collectively, as they may be amended, supplemented, restated or otherwise
modified from time to time, the "SNAKE RIVER LOAN NOTES").
Each of the Secured Party, Valhi and the Depositor desire that
the AGM Interest be transferred and to held by the Trust, independent and apart
from the assets of the Depositor and that (i) the Trust guarantee payment of the
Limited Recourse Note and (ii) the obligations of the Trust under such guarantee
and Valhi's obligations under the Subordinated Note be secured by the AGM
Interest and in furtherance thereof desire that the Depositor (i) enter into
this Agreement and establish the Trust (as hereinafter defined) as provided
herein and (ii) cause the Trust to execute and deliver the Guaranty, dated the
date of this Agreement (as it may hereafter be amended, supplemented, restated
or otherwise modified from time to time, the "SPT GUARANTY") and the Pledge
Agreement, dated as of the date of this Agreement, by and between the Secured
Party and the Trust (as it may hereafter be amended, supplemented, restated or
otherwise modified from time to time, the "SPT PLEDGE AGREEMENT").
The Secured Party intends to issue its 10.80% Senior Notes due
2009 (the "SENIOR NOTES") pursuant to certain Note Purchase Agreements dated as
of the date of this Agreement (as they may hereafter be amended, supplemented,
restated or otherwise modified from time to time, the "NOTE PURCHASE
AGREEMENTS").
Pursuant to that certain Pledge Agreement, dated as of the date
of this Agreement between the Secured Party and the Collateral Agent (as defined
below) (as it may hereafter be amended, supplemented, restated or otherwise
modified from time to time, the "SNAKE PLEDGE AGREEMENT"), the Secured Party has
assigned to the Collateral Agent, for the benefit of the holders of the Senior
Notes, as collateral security for its obligations under the Note Purchase
Agreements and the Senior Notes, among other things, all of its rights, title
and interest in, to and under (i) the Snake River Loan Notes and (ii) 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.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto hereby agree as follows:
{PRIVATE }
DEFINITIONS{TC \L 1 "
DEFINITIONS"}
{PRIVATE } DEFINITIONS{TC \L 2 " DEFINITIONS"}. Capitalized
terms set forth below shall have the following meanings when used in this
Agreement:
"ACTUAL KNOWLEDGE" means the actual knowledge of any Authorized
Officer in the Corporate Trust Office of the Resident Trustee who is responsible
for administering the Resident Trustee's compliance with this Agreement or the
actual knowledge of any officer of the Company Trustee.
"AFFILIATE" of any Person means any other Person that directly or
indirectly controls, is controlled by or is under common control with such
Person. "Control", including with correlative meanings the terms "controlling",
"controlled by" and "under common control with" means the possession, directly
or indirectly, of the power to direct the management and policies of a person,
whether through the ownership of voting securities, by contract or otherwise.
"AGM INTEREST" has the meaning assigned to that term in the Recitals
to this Agreement.
"AGREEMENT" means this Deposit Trust Agreement, as amended,
supplemented or otherwise modified from time to time.
"AUTHORIZED OFFICER" means, with respect to any Person, the chairman,
president or any vice president of such Person and in addition, in the case of
the Resident Trustee, means a secretary, assistant secretary or financial
services officer of the Resident Trustee.
"BUSINESS DAY" means a day on which the Trustee and banks located in
New York, New York, Chicago, Illinois and Ogden, Utah are open for the purpose
of conducting commercial business.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq., as the same may be amended from time to
time.
"CERTIFICATE OF BENEFICIAL INTEREST" means any certificate
representing a beneficial ownership interest in the Trust in substantially the
form attached hereto as Exhibit A.
"CERTIFICATEHOLDER" means any holder of record of a Certificate of
Beneficial Interest. The Depositor shall be the sole initial Certificateholder.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL AGENT" means the Collateral Agent under that certain
Collateral Agency Agreement, dated as of the date of this Agreement by and among
the purchasers party to the Note Purchase Agreements, the Secured Party and
First Security Bank, National Association, as collateral agent.
"COMPANY AGREEMENT" has the meaning assigned to that term in the
Recitals to this Agreement.
"COMPANY TRUSTEE" means ASC Holdings, Inc. as the initial Company
Trustee, and its successor as Company Trustee hereunder.
"CORPORATE TRUST OFFICE" means the office of the Resident Trustee or
the Company Trustee, as applicable as set forth in Section 8.4.
"DEPOSITOR" has the meaning stated in the introductory paragraph of
this Agreement.
"DISTRIBUTION DATE" means, as to funds paid to a Trustee by wire
transfer, the Business Day on which the Trust receives such funds and, as to
funds paid to a Trustee by a method other than by wire transfer, the first
Business Day following the day on which a Trustee has Actual Knowledge of its
receipt of such funds.
"FISCAL YEAR" means the fiscal year of LLC.
"INDEMNIFICATION PLEDGE AGREEMENT" means the pledge agreement of the
Trust in favor of the Secured Party and LLC, and as of the date of this
Agreement.
"LIEN" means any mortgage, pledge, security interest, encumbrance,
set-off, bankers' lien or similar arrangement, charge or other lien of any kind,
any agreement to give the same, any conditional sale or other title retention
agreement, and the filing of or agreement to give any financing statement under
the
Uniform Commercial Code of any jurisdiction.
"LLC" has the meaning assigned to that term in the Recitals to this
Agreement.
"NOTE PURCHASE AGREEMENTS" has the meaning assigned to that term in
the Recitals to this Agreement.
"PERCENTAGE INTEREST" means the beneficial ownership interest,
expressed as a percentage, of a Certificateholder in this Trust. The initial
Percentage Interest of the Depositor shall be 100%.
"PERSON" means any individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or
government or agency or political subdivision thereof.
"RESIDENT TRUSTEE" means a Person satisfying the requirements of
Section 3807(a) of the Business Trust Statute, and shall initially be Wilmington
Trust Company, a Delaware banking corporation acting not in its individual
capacity but solely as trustee hereunder, and any Person that shall have become
its successor pursuant to Section 7.4 hereof.
"SECURED PARTY" has the meaning assigned to that term in the Recitals
to this Agreement.
"SNAKE LOAN DEFAULT" means any default under the Snake River Loan
Notes permitting or resulting in acceleration of the Snake River Loan Notes.
"SNAKE LOAN DEFAULT NOTICE" means a written notice delivered to the
Resident Trustee in accordance with Section 8.4 hereof from Secured Party or the
Collateral Agent, stating that a Snake Loan Default has occurred.
"SENIOR NOTE PAYOFF NOTICE" means a notice given by the Collateral
Agent to the Resident Trustee stating that all obligations in respect to the
Senior Notes and the Note Purchase Agreements have been paid in full.
"SENIOR NOTES" has the meaning assigned to that term in the Recitals
to this Agreement.
"SNAKE PLEDGE AGREEMENT" has the meaning assigned to that term in the
Recitals to this Agreement.
"SNAKE RIVER LOAN NOTES" has the meaning assigned to that term in the
Recitals to this Agreement.
"SPT PLEDGE AGREEMENT" has the meaning assigned to that term in the
Recitals to this Agreement.
"TRUST" means the trust existing pursuant to this Agreement,
designated as Amalgamated Collateral Trust.
"TRUSTEE" means each of the Resident Trustee and the Company Trustee,
acting as trustee of the Trust pursuant to this Agreement.
"TRUST PROPERTY" has the meaning assigned to that term in Section 2.2
hereof.
"VALHI" has the meaning assigned to that term in the Recitals to this
Agreement.
"VALHI ENTITY PLEDGE AGREEMENT" means the Amended and Restated Pledge
Agreement, dated the date of this Agreement executed by the Depositor, as it may
be amended, supplemented, restated or otherwise modified from time to time.
"VOTING RIGHTS AGREEMENT" means the Voting Rights and Forbearance
Agreement, dated as of the date of this Agreement, by and among the Trust, the
Depositor and the Collateral Agent, as it may be amended, supplemented, restated
or otherwise modified from time to time.
"VOTING RIGHTS NOTICE" means a written notice delivered to the
Resident Trustee in accordance with Section 8.4 hereof from the Collateral Agent
stating that the Depositor does not have the right to exercise Control Action,
as defined in the Voting Rights Agreement.
{PRIVATE }
DECLARATION OF BUSINESS TRUST; ISSUANCE{TC \L 1 "
DECLARATION OF BUSINESS TRUST; ISSUANCE"}
AND TRANSFER OF CERTIFICATES OF BENEFICIAL
INTEREST; DUTIES OF TRUSTEES; NO FILING
{PRIVATE } DECLARATION OF BUSINESS TRUST{TC \L 2 "
DECLARATION OF BUSINESS TRUST"}.
Wilmington and the Depositor, and each of them, are hereby
appointed to hold, and each accepts such appointment and agrees to hold, the
Trust Property as Trustee in trust upon the terms and conditions and for the use
and benefit of the Certificateholders as herein set forth. Wilmington is hereby
designated the Resident Trustee of the Trust.
It is the intention of the parties hereto that the trust created by
this Agreement constitute a business trust under the Business Trust Statute and
that this Agreement constitute the governing instrument of such business trust.
This declaration of business trust is intended for federal income tax purposes
to be characterized as a partnership among the Certificateholders (if more than
one Certificateholder exists) and, at any time that there is only one
Certificateholder, as merely an agent of such holder and not as a separate
entity for federal income tax purposes. It is not intended to create an
association taxable as a corporation. The provisions hereof shall be
interpreted accordingly and no party hereto shall take a contrary position for
federal income tax purposes. Effective as of the date hereof, the Trustees
shall have all the rights, powers and duties set forth herein and (except as
otherwise provided herein) in the Business Trust Statute with respect to
accomplishing the purposes of the Trust.
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 Agreement and
the Voting Rights Agreement, (iii) executing and delivering the SPT Guaranty,
SPT Pledge Agreement and the Indemnification Pledge Agreement and the First
Amendment to Company Agreement and performing its obligations thereunder and
under the Company Agreement, and (iv) engaging in any activities necessary,
convenient or incidental to the foregoing.
{PRIVATE } TRANSFER OF TRUST PROPERTY TO THE TRUST{TC \L 2 "
TRANSFER OF TRUST PROPERTY TO THE TRUST"}.
The Depositor hereby grants, assigns, transfers, and sets over to
the Trust all of the Depositor's right, title and interest in, to and under the
following (the "TRUST PROPERTY"): (i) the AGM Interest and the Company
Agreement, (ii) any certificates representing the AGM Interest and any interest
of the Depositor in the entries on the books of any financial intermediary
pertaining to the AGM Interest, and all distributions, dividends, cash,
warrants, rights, instruments, voting rights and other rights, property or
proceeds from time to time existing, received, receivable or otherwise
distributed in respect of or in exchange for any or all of the AGM Interest
and/or the Company Agreement, (iii) all additional equity interests, and all
securities convertible into and warrants, options and other rights to purchase
or otherwise acquire any equity interests, in any issuer of the AGM Interest
from time to time acquired by the Depositor in any manner (which interests shall
be deemed to be part of the Trust Property), any certificates or other
instruments representing such additional equity interests, securities, warrants,
options or other rights and any interest of Depositor in the entries on the
books of any financial intermediary pertaining to such additional equity
interests, and all dividends, cash, warrants, rights, instruments, voting rights
and other rights, property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
additional equity interests, securities, warrants, options or other rights, and
(iv) to the extent not covered by clauses (i) through (iii) above, all proceeds
of any or all of the foregoing. For purposes of this Agreement, the term
"PROCEEDS" includes whatever is receivable or received when Trust Property or
proceeds are sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary, and includes, without limitation,
proceeds of any indemnity or guaranty payable to the Depositor or the Trust from
time to time with respect to any of the Trust Property.
At any time and from time to time, the Depositor or any other
Person may grant to the Trust additional Trust Property. Upon receipt of
written directions from the Collateral Agent, the Trust shall accept or acquire
such additional Trust Property for the common and equal use, benefit and
security of all Certificateholders.
{PRIVATE } ISSUANCE AND TRANSFER OF CERTIFICATES OF BENEFICIAL
INTEREST{TC \L 2 " ISSUANCE AND TRANSFER OF CERTIFICATES OF BENEFICIAL
INTEREST"}.
The Company Trustee (in such capacity) acknowledges that the
Trust has received the AGM Interest on the date hereof, duly transferred by the
Depositor, and the Depositor is hereby issued a 100% Certificate of Beneficial
Interest by the Trust and initially constitutes the sole beneficial owner of the
Trust and the Resident Trustee is hereby authorized and directed to execute such
Certificate of Beneficial Interest.
Each Certificate of Beneficial Interest shall be executed by
manual signature on behalf of the Resident Trustee by one of its Authorized
Officers. Certificates of Beneficial Interest bearing the manual signature of
an individual who was, at the time when such signature was affixed, authorized
to sign on behalf of the Resident Trustee shall bind the Trust, notwithstanding
that such individual has ceased to be so authorized prior to the delivery of
such Certificates of Beneficial Interest or does not hold such office at the
date of such Certificates of Beneficial Interest. Each Certificate of
Beneficial Interest shall be dated the date of its issuance.
A Certificateholder shall be entitled to all rights provided to
it under this Agreement, in the Business Trust Statute (to the extent not
limited by this Agreement), and in its Certificate of Beneficial Interest, and
shall be subject to the terms and conditions contained in this Agreement, in the
Business Trust Statute (to the extent not limited by this Agreement) and in such
Certificate of Beneficial Interest.
The Resident Trustee shall cause to be kept at its Corporate
Trust Office, in accordance with the provisions of Section 7.2 hereof, a
register (the "CERTIFICATE REGISTER") in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall provide for the registration
of Certificates of Beneficial Interest. Each registered Certificateholder and,
until termination of the Snake Pledge Agreement, the Collateral Agent, shall
have the right to inspect the Certificate Register, subject to such reasonable
regulations as the Resident Trustee shall prescribe. The person listed as the
owner of a Certificate of Beneficial Interest on the Certificate Register shall
be treated as the owner of such Certificate of Beneficial Interest for all
purposes of this Agreement.
No Certificateholder shall have any right, power or authority to
sell, assign, pledge, hypothecate or otherwise transfer its Certificate of
Beneficial Interest except in compliance with the Valhi Entity Pledge Agreement
or pursuant to a transfer to the Collateral Agent or the Secured Party in
connection with an exercise of remedies under the Snake Pledge Agreement and/or
the Valhi Entity Pledge Agreement, and each Certificate of Beneficial Interest
shall bear a legend as set forth in the form of Certificate of Beneficial
Interest attached hereto as Exhibit A.
Each Certificate of Beneficial Interest shall bear a legend
setting forth restrictions on transferability substantially as follows:
"THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS."
If (i) any mutilated Certificate of Beneficial Interest is
surrendered to the Resident Trustee, or the Resident Trustee receives evidence
to its satisfaction of the destruction, loss or theft of any Certificate of
Beneficial Interest and (ii) there is delivered to the Resident Trustee such
security or indemnity as may be required by it to save it harmless, then, in the
absence of Actual Knowledge by the Resident Trustee that such Certificate of
Beneficial Interest has been acquired by a bona fide purchaser, the Resident
Trustee shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate of Beneficial Interest, a new
Certificate of Beneficial Interest of like tenor and aggregate beneficial
interest. In connection with the issuance of any new Certificate of Beneficial
Interest under this Section 2.3(g), the Resident Trustee may require the payment
by the applicable Certificate-holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Resident Trustee) connected
therewith. Any new Certificate of Beneficial Interest issued pursuant to this
Section 2.3(g) shall constitute complete and indefeasible evidence of ownership
of a beneficial interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Certificate of Beneficial Interest shall be found
at any time.
{PRIVATE } PAYMENTS AND DISTRIBUTIONS{TC \L 2 " PAYMENTS AND
DISTRIBUTIONS"}.
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:
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 Agreement;
if the Resident Trustee shall not have received a Snake Loan
Default Notice, the Resident Trustee shall segregate an amount equal to the
amount of interest due on the Snake River Loan Notes on the next day set
for payment thereof, as specified from time to time by the Collateral Agent
(or after receipt by the Resident Trustee of the Senior Note Payoff Notice,
the Secured Party) in a notice or notices to the Resident Trustee, and on
the due date of such interest payment, pay such amount to the Collateral
Agent (or pursuant to payment instructions received by the Resident Agent
from the Collateral Agent); provided that upon receipt by the Resident
Trustee of the Senior Note Payoff Notice, the Resident Trustee will pay
such amount to Secured Party;
to the extent not otherwise paid, to pay all operating and
administrative expenses of the Trust for which the Resident Trustee has
received invoices;
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) received by the
Resident Trustee since the last distribution pursuant to this clause (iv),
to the Certificateholders;
if the Resident Trustee shall have received a Snake Loan
Default Notice, to the Collateral Agent (or after receipt by the Resident
Trustee of the Senior Note Payoff Notice, to the Secured Party).
All payments and distributions required to be made to the
Certificateholders, the Collateral Agent (or pursuant to payment instructions
given by the Collateral Agent to the Resident Trustee) or Secured Party pursuant
to this Section 2.4 shall be made by wire transfer of immediately available
funds as specified in written instructions from the Certificateholder, the
Collateral Agent or Secured Party, as applicable.
All cash payments to be made to the Trust shall be paid to the
Resident Trustee and applied by the Resident Trustee as provided in subsection
2.4(a).
Cash held by the Trust shall be invested from time to time by the
Resident Trustee at the direction of the Company Trustee (subject to the
provisions of Section 2.7(h)) and subject to the requirements of the Trust to
make payments as set forth in Section 2.4(a) above, only in (i) marketable
securities issued or directly and unconditionally guaranteed by the United
States Government or issued by any agency thereof and backed by the full faith
and credit of the United States, in each case maturing within thirty (30) days
from the date of investment; (ii) marketable direct obligations issued by any
state of the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within thirty (30) days
from the date of investment and, at the time of acquisition thereof, having the
highest rating obtainable from either Standard & Poor's Corporation or Moody's
Investors Service, Inc.; (iii) commercial paper maturing no more than thirty
(30) days from the date of investment and, at the time of acquisition thereof,
having the highest rating obtainable from either Standard & Poor's Corporation
or Moody's Investors Service, Inc.; and (iv) certificates of deposit or bankers'
acceptances maturing within thirty (30) days from the date of investment issued
by any commercial bank organized under the laws of the United States of America
or any state thereof or the District of Columbia having unimpaired capital and
surplus of not less than $500,000,000.
{PRIVATE } TAX REPORTING{TC \L 2 " TAX REPORTING"}. If the Trust
is treated as a partnership for federal tax purposes, the Depositor shall serve
as tax matters partner within the meaning of Section 6231(a)(7) of the Code for
the Trust, and shall cause the Trust to file federal, state and local income tax
returns and information statements as a partnership for each of its taxable
years. Within a reasonable time after the end of each of the Trust's Fiscal
Years, the Depositor shall cause the Trust to provide to each Certificateholder
an Internal Revenue Service Schedule "K-1" or any successor schedule and
supplemental information, if required by law, to enable each Certificateholder
to file its income tax returns. The Depositor may from time to time make and
revoke such tax elections as it deems necessary or desirable in its sole
discretion to carry out the business of the Trust or the purposes of this
Agreement.
{PRIVATE } FURTHER ASSURANCES{TC \L 2 " 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, 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, as applicable
may deem necessary or advisable to give effect to the transactions contemplated
hereby or by the Voting Rights Agreement or the other documents contemplated
hereby, 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 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
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.
{PRIVATE } DUTIES OF TRUSTEES{TC \L 2 " DUTIES OF TRUSTEES"}
Notwithstanding anything to the contrary contained in this
Section 2.7 or elsewhere in this 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.
Subject to the limitations provided in the Voting Rights
Agreement, Sections 2.7(a), 2.7(h) and 2.8 and otherwise in this 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 Agreement. Without limiting the generality of the foregoing, the Company
Trustee shall have full and exclusive power and authority:
subject to the terms of the Voting Rights Agreement, 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 Agreement and the Voting Rights Agreement, with respect
to Trust Property;
to incur expenses which the Company Trustee reasonably deems
necessary or incidental to carry out any of the purposes of this Agreement;
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 or of the Voting Rights Agreement;
and
until receipt by the Resident Trustee of a Voting Rights
Notice or after any recision of all Voting Rights Notices), to exercise all
Control Action (as defined in the Voting Rights Agreement) with respect to
the AGM Interest held as part of the Trust Property. After receipt by the
Resident Trustee of a Voting Rights Notice and until such Voting Rights
Notice has been rescinded by notice given to the Resident Trustee by the
Collateral Agent, the Company Trustee shall have no further right, power or
authority to exercise Control Action on behalf of the Trust.
Subject to the limitations provided in Sections 2.7(a), 2.7(h)
and 2.8, and otherwise in this 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
Agreement.
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
Agreement, except as expressly required or permitted by the terms of this
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 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.
No Trustee shall take any action contrary to (or fail to take any
action if such failure would be contrary to) this Agreement, the Snake Pledge
Agreement, the SPT Guaranty, the SPT Pledge Agreement, the Valhi Entity Pledge
Agreement, the Voting Rights 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).
Subject to the limitations provided in the Voting Rights
Agreement Sections 2.7(a), 2.7(h) and 2.8, and otherwise in this Agreement, the
Resident Trustee will take such action or shall refrain from taking such action
under this 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
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 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 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 Agreement the Resident Trustee shall not take any direction
with respect to this 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.
If, in performing its duties under this 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 Agreement or any such document, then the Resident Trustee shall promptly
deliver a notice to the Company Trustee (or if the Resident Trustee shall have
received a Snake Loan Default Notice, to 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 requesting written instructions as to the
course of action required by the Company Trustee or by the Collateral Agent or
Secured Party after receipt by the Resident Trustee of a Snake Loan Default
Notice, and any action taken by the Resident Trustee in reliance on such
instruction shall be full and complete authorization and protection.
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, and, at any time after the
Resident Trustee shall have received a Snake Loan Default Notice, the Collateral
Agent or 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.
The Resident Trustee shall furnish to the Certificateholders and
the Collateral Agent, 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 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.
Notwithstanding anything to the contrary contained in this
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 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).
{PRIVATE } NO FILING{TC \L 2 " NO FILING"}. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN, ONLY THE RESIDENT TRUSTEE SHALL HAVE
THE RIGHT, POWER, AUTHORITY OR AUTHORIZATION TO INSTITUTE PROCEEDINGS FOR ANY
TRUSTEE (IN SUCH CAPACITY) OR THE TRUST TO BE ADJUDICATED BANKRUPT OR INSOLVENT
OR SUBJECT TO RECEIVERSHIP, OR CONSENT TO THE INSTITUTION OF BANKRUPTCY OR
INSOLVENCY OR RECEIVERSHIP PROCEEDINGS AGAINST ANY TRUSTEE (IN SUCH CAPACITY) OR
THE TRUST, OR FILE A PETITION SEEKING, OR CONSENT TO REORGANIZATION OR RELIEF
UNDER ANY APPLICABLE FEDERAL OR STATE LAW RELATING TO BANKRUPTCY OR
RECEIVERSHIP, OR CONSENT TO THE APPOINTMENT OF A RECEIVER, LIQUIDATOR, ASSIGNEE,
TRUSTEE, SEQUESTRATOR (OR OTHER SIMILAR OFFICIAL) OF ANY TRUSTEE (IN SUCH
CAPACITY), THE TRUST OR A SUBSTANTIAL PART OF ITS PROPERTY, OR MAKE ANY
ASSIGNMENT FOR THE BENEFIT OF CREDITORS, OR ADMIT IN WRITING ANY TRUSTEE'S (IN
SUCH CAPACITY) OR THE TRUST'S INABILITY TO PAY ITS DEBTS GENERALLY AS THEY
BECOME DUE, OR TAKE ACTION IN FURTHERANCE OF ANY SUCH ACTION (ANY SUCH ACTION
BEING AN "INSOLVENCY ACTION"). TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT
THE EXPRESS WRITTEN CONSENT OF THE SECURED PARTY (SO LONG AS THE SPT PLEDGE
AGREEMENT IS IN EFFECT), THE COLLATERAL AGENT (SO LONG AS THE SNAKE PLEDGE
AGREEMENT IS IN EFFECT) AND THE CERTIFICATEHOLDERS, NO TRUSTEE SHALL HAVE THE
RIGHT, POWER, AUTHORITY OR AUTHORIZATION TO TAKE AN INSOLVENCY ACTION; PROVIDED,
HOWEVER, NO PROVISION OF THIS AGREEMENT OR ANY CERTIFICATE OF BENEFICIAL
INTEREST OR ANY OTHER AGREEMENT, DOCUMENT OR INSTRUMENT RELATING TO THE TRUST IS
INTENDED TO, NOR SHALL ANY SUCH PROVISION, RESTRICT OR OTHERWISE AFFECT IN ANY
WAY ANY RIGHT, POWER, AUTHORITY OR AUTHORIZATION OF WILMINGTON UNDER APPLICABLE
LAW. BY ITS ACCEPTANCE OF ITS CERTIFICATE OF BENEFICIAL INTEREST, THE DEPOSITOR
AND EACH CERTIFICATEHOLDER IS DEEMED TO IRREVOCABLY WAIVE ANY RIGHT OR INTEREST
IT MAY HAVE UNDER THIS AGREEMENT, BY OPERATION OF LAW OR EQUITY, TO DIRECT OR
OTHERWISE REQUIRE THE RESIDENT TRUSTEE TO INITIATE OR CONSENT TO ANY BANKRUPTCY,
INSOLVENCY OR RECEIVERSHIP PROCEEDINGS OR SIMILAR ACTIONS AS DESCRIBED ABOVE AND
RELEASES THE RESIDENT TRUSTEE FROM ANY DUTY AND ACKNOWLEDGES THAT THE RESIDENT
TRUSTEE HAS NO DUTY (FIDUCIARY OR OTHERWISE) ARISING UNDER THIS AGREEMENT, BY
OPERATION OF LAW OR EQUITY OR OTHERWISE, TO INITIATE, CONSENT TO, OR PARTICIPATE
IN ANY SUCH PROCEEDING OR OTHERWISE TAKE ANY ACTION THAT WOULD CAUSE A DEFAULT
UNDER THE NOTE PURCHASE AGREEMENTS, IT BEING EXPRESSLY UNDERSTOOD THAT ANY SUCH
ACTION BY THE RESIDENT TRUSTEE SHALL BE UNDERTAKEN OR REFRAINED FROM, IN THE
RESIDENT TRUSTEE'S SOLE AND ABSOLUTE DISCRETION (BUT ONLY WITH THE EXPRESS
WRITTEN CONSENT OF THE COLLATERAL AGENT, SECURED PARTY AND THE
CERTIFICATEHOLDERS), WITHOUT REGARD TO ANY RIGHTS OR INTERESTS THE
CERTIFICATEHOLDER OR ANY OTHER PERSON MAY HAVE.
{PRIVATE } SITUS OF TRUST{TC \L 2 " SITUS OF TRUST"}. The
principal office of the Trust will be at the principal office of the Resident
Trustee within the State of Delaware.
{PRIVATE } TITLE TO TRUST PROPERTY; ACTION BY TRUSTEES{TC \L 2 "
TITLE TO TRUST PROPERTY; ACTION BY TRUSTEES"}. (a) Until this Agreement
terminates pursuant to Article VIII hereof, title to all of the Trust Property
shall be vested in the Trust, provided, however, that if the laws of any
jurisdiction in which Trust Property is located require that title to any part
of such Trust Property be vested in a trustee of the Trust, then title to that
part of the Trust Property shall be deemed to be vested in the Company Trustee
or any co-trustee or separate trustees, as the case may be, appointed pursuant
to Article VII of this Agreement.
{PRIVATE } ALLOCATIONS{TC \L 2 " ALLOCATIONS"}. All items of
income, gain, loss, deduction and credit shall be allocated among the
Certificateholders in accordance with their respective Percentage Interests.
{PRIVATE } DISTRIBUTIONS OF RIGHTS TO RETAINED AMOUNTS{TC \L 2 "
DISTRIBUTIONS OF RIGHTS TO RETAINED AMOUNTS"}. Prior to the time that the
Resident Trustee shall have received a Snake Loan Default Notice, all rights to
Retained Amounts (as defined in the Company Agreement) received in respect of
the AGM Interest as Trust Property shall be deemed to have been distributed to
the Certificateholders immediately upon receipt thereof by the Trust. After
receipt by the Resident Trustee of a Snake Loan Default Notice, all rights to
Retained Amounts received in respect of the AGM Interest as Trust Property shall
be held by the Trust as Trust Property subject to the terms and conditions of
this Agreement.
{PRIVATE }
AUTHORIZATION OF TRUSTEES; PLEDGE OF COLLATERAL{TC \L 1 "
AUTHORIZATION OF TRUSTEES; PLEDGE OF COLLATERAL"}
{PRIVATE } AUTHORIZATION OF TRUSTEE{TC \L 2 " AUTHORIZATION
OF TRUSTEE"}. (a) Notwithstanding any provision in this Agreement to the
contrary, the Resident 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 First Amendment to Company Agreement, the SPT
Guaranty, the SPT Pledge Agreement, the Voting Rights Agreement, all UCC-1
financing statements requested by the Collateral Agent and the Certificate of
Beneficial Interest furnished to the Trustee on the date hereof indicating the
Depositor as the registered owner of 100% of the undivided beneficial interests
in the Trust, (ii) perform all such agreements and the Company Agreement and
(iii) execute and file with the Secretary of State of the State of Delaware the
Certificate of Trust of the Trust.
Subject to the Voting Rights Agreement and Sections 2.7(a),
2.7(h), 2.8, the Company Trustee (not in its individual capacity but solely in
its fiduciary capacity as trustee hereunder) is hereby (i) directed to take on
behalf of the Trust all actions required to be taken by the Trust under each
agreement to which the Trust is or becomes a party and (ii) subject to the terms
of such agreements, authorized to take on behalf of the Trust all actions
permitted to be taken by the Trust under each such agreement.
{PRIVATE } PLEDGE OF COLLATERAL{TC \L 2 " PLEDGE OF
COLLATERAL"}. (a) Effective on the date the Trust is established (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 and the
Collateral described in the Indemnification Pledge Agreement, such first
priority security interest being pari passu with the first priority security
interest in favor of the LLC created by the Indemnification 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 and the Indemnification Pledge Agreement, including all rights in and
to such Pledged Collateral.
On the Effective Date, the Company Trustee on behalf of the Trust
shall deliver or cause to be delivered the Pledged Collateral to the Collateral
Agent, to have and to hold such Pledged Collateral and the properties, rights
and privileges hereby contemplated and in which a security interest is granted
or intended to be granted to the Secured Party and/or the Collateral Agent.
Each Trustee shall give, execute, deliver, file and record any
notice, instrument, document, agreement or other papers presented to it in
execution form that may be necessary or desirable in the Collateral Agent's or
Secured Party's reasonable discretion in order to enable the Collateral Agent
and Secured Party (i) to preserve, perfect, substantiate or validate any
security interest granted under the SPT Pledge Agreement or the Snake Pledge
Agreement and (ii) to exercise and enforce the Collateral Agent's and Secured
Party's rights and the rights of the Trust with respect to the related Pledged
Collateral.
{PRIVATE }
REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR {TC \L 1 "
REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR "}
AND THE COMPANY TRUSTEE
{PRIVATE } SECURITIES LAW REPRESENTATIONS{TC \L 2 " SECURITIES
LAW REPRESENTATIONS"}. By the execution of this Agreement, the Depositor
represents that:
It is acquiring the Certificate of Beneficial Interest for its
own account and not with a view to the resale or distribution thereof.
It is an "accredited investor" as defined in Rule 215 under the
Securities Act of 1933, as amended.
It understands and acknowledges that its Certificate of
Beneficial Interest has not been registered for sale under any Federal or state
securities law and must be held indefinitely unless subsequently registered or
an exemption from such registration is available.
{PRIVATE } OTHER REPRESENTATIONS AND WARRANTIES{TC \L 2 " OTHER
REPRESENTATIONS AND WARRANTIES"}. ASC Holdings, Inc. ("ASC"), in its capacity
as the Depositor and as the Company Trustee, represents and warrants that:
ASC is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and is duly
qualified as a foreign corporation and is in good standing in all additional
jurisdictions where such qualification is necessary under applicable law. ASC
has the corporate power and authority to own the properties it purports to own
and to execute and deliver this Agreement and to perform the provisions hereof.
The execution and delivery by ASC of this Agreement and the
performance by ASC of its obligations under this Agreement do 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 ASC 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.
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 of ASC is required in connection
with the execution, delivery or performance by ASC of this Agreement or the
transactions contemplated hereby or as a condition to the legality, validity or
enforceability of this Agreement.
This Agreement has been duly authorized by all necessary
corporate action on the part of ASC, and this 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.
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 Agreement, and, to the best
knowledge of ASC or any officer of ASC, there is no basis for any such action,
suit or proceeding.
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 Agreement.
(g) ASC, as the Depositor, has good and sufficient title to the Trust
Property free and clear of all Liens other than Liens being released in
connection with this Agreement.
(h) Since January 3, 1997, the Company Agreement has not been
amended, supplemented, restated or otherwise modified, and no violation of any
provision thereof has been waived, except for the First Amendment to Company
Agreement.
{PRIVATE }
REPRESENTATIONS AND WARRANTIES{TC \L 1 "
REPRESENTATIONS AND WARRANTIES"}
OF THE RESIDENT TRUSTEE
{PRIVATE } WILMINGTON TRUST COMPANY{TC \L 2 " WILMINGTON
TRUST COMPANY"}. Wilmington hereby represents and warrants that:
{PRIVATE } GOOD STANDING{TC \L 3 " GOOD STANDING"}. 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.
{PRIVATE } CORPORATE POWER{TC \L 3 " CORPORATE POWER"}. The
execution, delivery and performance by Wilmington, in its individual capacity
and in its capacity as Resident Trustee, of this Agreement and the execution on
behalf of the Trust of the Certificates of Beneficial Interest by Wilmington, as
Trustee pursuant to this Agreement, are 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 Agreement or
contemplated by this Agreement.
{PRIVATE } CONSENTS AND APPROVALS{TC \L 3 " CONSENTS AND
APPROVALS"}. Other than such filing of a Certificate of Trust as has been or
will be made, and the filing of a certificate of cancellation as described in
Section 8.5(c), no other consent, approval, authorization or order of, or filing
with, any court or regulatory, supervisory or governmental agency or body is
required under Delaware law in connection with the execution, delivery and
performance by Wilmington, in its individual capacity and in its capacity as
Resident Trustee, of this Agreement or the execution on behalf of the Trust of
the Certificates of Beneficial Interest by Wilmington, as Resident Trustee,
pursuant to this Agreement or the consummation by Wilmington, as Resident
Trustee, of the transactions contemplated hereby or thereby (except as may be
required by Delaware securities laws).
{PRIVATE }
CERTAIN COVENANTS OF DEPOSITOR, OTHER OWNERS OF{TC \L 1 "
CERTAIN COVENANTS OF DEPOSITOR, OTHER OWNERS OF"}
CERTIFICATES OF BENEFICIAL INTEREST, AND THE TRUST
{PRIVATE } TITLE TO TRUST PROPERTY{TC \L 2 " TITLE TO TRUST
PROPERTY"}. Each Certificateholder from time to time is deemed to acknowledge
and agree by its acquisition of its Certificates of Beneficial Interest that
(i) the Trust owns the Trust Property and (ii) such Certificateholder shall
refrain from taking any action contrary to such ownership by the Trust.
{PRIVATE } NOTIFICATION OF TRANSFER{TC \L 2 " NOTIFICATION OF
TRANSFER"}. Immediately upon the sale or other transfer of any Trust Property
to the Trust pursuant to this Agreement or any agreement to which the Trust may
be or become a party, the Person effecting such sale will make any appropriate
notations on its records to indicate that such Trust Property has been sold or
transferred to the Trust pursuant to this Agreement.
{PRIVATE } INVESTMENT COMPANY{TC \L 2 " INVESTMENT COMPANY"}. No
Certificateholder shall take any action which would cause the Trust to become an
investment company which would be required to register under the Investment
Company Act of 1940.
{PRIVATE } LIABILITY OF CERTIFICATEHOLDERS{TC \L 2 " LIABILITY
OF CERTIFICATEHOLDERS"}. Except as expressly provided in Sections 7.3(b) and
7.3(c), the liability of the Certificateholders shall be limited to the full
extent provided by Section 3803 of the Business Trust Statute. Without limiting
the generality of the foregoing, but subject to Sections 7.3(b) and 7.3(c), no
recourse may be taken, directly or indirectly, against (i) any past, present or
future Certificateholder, or (ii) any principal, partner, shareholder, officer,
director, grantor, depositor, trustee, nominee, beneficiary, attorney-in-fact,
agent or employee of any Certificateholder or any elected or appointed official
of any of them, or against the assets of any of them, whether by virtue of any
constitution, statute or rule of law, or by the enforcement or assessment of any
penalty or otherwise, for any claim under or based on any agreement,
certificate, document or instrument referred to herein or delivered pursuant
hereto, or for any liabilities, obligations, fees, expenses, taxes or indemnity
payments of the Trust; provided that this Section 6.4 shall not be construed as
limiting or waiving in any manner the recourse liability of Valhi under the
Snake River Loan Notes.
{PRIVATE }
CONCERNING THE TRUSTEES AND THE TRUST{TC \L 1 "
CONCERNING THE TRUSTEES AND THE TRUST"}
{PRIVATE } GENERAL MATTERS RELATING TO THE TRUSTEES; LIMITATION ON
OBLIGATIONS{TC \L 2 " GENERAL MATTERS RELATING TO THE TRUSTEES; LIMITATION ON
OBLIGATIONS"}.
Subject to the terms of Section 7.3 of this Agreement, all moneys
deposited with or received by any Trustee hereunder shall be held by it, in
accordance with this Agreement, in trust as part of the Trust Property until
distributed in accordance with Section 2.4 hereof.
No Trustee, in its individual capacity or in its capacity as
Trustee, shall be liable for any action taken by it in good faith in reliance
upon any paper, order, instruction, signature, list, demand, request, consent,
affidavit, notice, opinion, direction, endorsement, assignment, resolution,
draft or other document, prima facie properly executed, or for the disposition
of any moneys pursuant to this Agreement; provided, however, that this provision
shall not protect any Trustee against any liability to Certificateholders to
which such Trustee would otherwise be subject by reason of such Trustee's bad
faith, willful misconduct or gross negligence in the performance of its duties
hereunder.
No Trustee shall be liable, either in its individual capacity or
in its capacity as Trustee, for performing any obligations or duties of the
Trust under any agreement to which the Trust is a party. No Trustee shall be
liable, either in its individual capacity or in its capacity as Trustee, with
respect to any action taken or omitted to be taken by any other Trustee or by
any co-trustee or separate trustee appointed hereunder.
No Trustee shall be responsible, either in its individual
capacity or its capacity as Trustee, for or in respect of the recitals herein,
the validity or sufficiency of this Agreement or for or in respect of the
validity or sufficiency of the Certificates of Beneficial Interest (except, in
the case of Wilmington, for the due execution thereof by Wilmington as Resident
Trustee), and no Trustee, in its individual capacity or in its capacity as
Trustee, shall assume or incur any liability, duty or obligation to ASC or to
any other Certificateholder, other than as expressly provided for herein.
Each Trustee shall promptly notify the Certificateholders and
each other Trustee and, until termination of the SPT Pledge Agreement, the
Secured Party, and, until termination of the Snake Pledge Agreement, the
Collateral Agent of any legal action taken by any Person with respect to the
Trust of which it has Actual Knowledge.
Notwithstanding anything contained herein to the contrary,
Wilmington, in its individual capacity and its capacity as Trustee, shall not be
required to take any action in any jurisdiction other than in the State of
Delaware if the taking of such action will (i) require the consent or approval
or authorization or order of or the giving of notice to, or the registration
with or taking of any action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware;
(ii) result in any fee, tax or other governmental charge under the laws of any
jurisdiction or any political subdivisions thereof in existence on the date
hereof other than the State of Delaware becoming payable by Wilmington; or
(iii) subject Wilmington to personal jurisdiction in any jurisdiction other than
the State of Delaware for causes of action arising from acts unrelated to the
consummation by Wilmington, in it individual capacity or as Trustee, or by the
Trust, as the case may be, of the transactions contemplated hereby.
Notwithstanding anything in this Agreement to the contrary, no
Trustee shall have any obligation or duty, fiduciary or otherwise (and no such
obligation or duty shall be read into this Agreement or implied with respect to
or against any Trustee), to (i) initiate or otherwise participate in, or consent
to, any bankruptcy, insolvency or other proceeding or adjudication of the Trust
as described in Section 2.8 or (ii) otherwise take any action, or refrain from
taking action, which action or failure to act, would cause a default under the
Note Purchase Agreements or the Snake River Loan Notes.
{PRIVATE } BOOKS AND RECORDS{TC \L 2 " BOOKS AND RECORDS"}.
Each Trustee shall keep proper books of record and account of all transactions
by it as Trustee under this Agreement at its Corporate Trust Office. The
records shall include a record of the names and addresses of all
Certificateholders. Such books and records shall be open to inspection by any
Certificateholder, and, until termination of the Snake Pledge Agreement, the
Collateral Agent, at all reasonable times during usual business hours of the
applicable Trustee.
{PRIVATE } COMPENSATION AND INDEMNIFICATION OF TRUSTEE{TC \L 2 "
COMPENSATION AND INDEMNIFICATION OF TRUSTEE"}.
The Company Trustee shall not be entitled to any compensation for
service as trustee.
As may be specified in the fee arrangements entered into with the
Trust and/or ASC, Wilmington shall be entitled from the Trust and the
Certificateholders, or from the Trust Property, to reasonable compensation for
services as Resident Trustee and reimbursement for all reasonable out-of-pocket
expenses, disbursements and advances incurred by it as Trustee in accordance
with any of the provisions of this Agreement or any other agreement or
instrument referred to or contemplated herein (including the reasonable
compensation, reasonable expenses and reasonable disbursements of its counsel
and of all persons not regularly in its employ), except any such expense,
disbursement or advance to the extent it arises from, or is incurred as a result
of, the bad faith, gross negligence or willful misconduct of the Resident
Trustee. The Resident Trustee shall notify each Certificateholder upon receipt
by it of compensation from the Trust Property pursuant to the foregoing sentence
of the amount of such compensation.
To the fullest extent permitted by law, the Trust and the
Certificateholders, jointly and severally, shall indemnify Wilmington and hold
it harmless against any and all losses and liabilities, obligations, damages,
penalties, taxes (excluding any taxes payable by Wilmington or the Resident
Trustee on or measured by any compensation for services rendered by the Resident
Trustee under this Agreement), claims, actions, suits or out-of-pocket expenses
or costs of any kind and nature whatsoever incurred or arising out of or in
connection with the acceptance or administration of this Trust, including the
reasonable costs and out-of-pocket expenses of defending itself against any
claim of liability relating thereto, except to the extent that the same is
incurred as a result of, or arises out of, the bad faith, gross negligence or
willful misconduct of the Resident Trustee.
The obligations of the Trust and the Certificateholders to indemnify
Wilmington, and Wilmington's right to be compensated and to be reimbursed for
its reasonable out-of-pocket expenses, disbursements and advances pursuant to
this Agreement, shall constitute additional obligations of the Trust hereunder
and shall survive the termination of this Agreement pursuant to Section 8.5
hereof. Such additional obligations of the Trust shall be secured by a lien
upon the Trust Property senior to any interest of the Certificateholders in the
Trust Property.
The Resident Trustee shall not be required to take or refrain
from taking any action under this Agreement (other than giving of notices, as
specified herein) or any agreement to which the Trust is a party unless the
Resident Trustee shall have been indemnified by the Trust, in manner and form
reasonably satisfactory to the Resident Trustee, against any liability, fee,
cost or expense (including attorney's fees) which may be incurred or charged in
connection therewith, except to the extent the same is incurred as a result of,
or arises out of, the bad faith, gross negligence or willful misconduct of the
Resident Trustee. The Resident Trustee shall not be required to take any action
if it 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 Resident
Trustee is a party or otherwise contrary to law.
Any amounts paid to the Resident Trustee pursuant to this Section
7.3 shall be deemed not to be part of the Trust Property immediately after such
payment.
{PRIVATE } RESIGNATION, DISCHARGE OR REMOVAL OF TRUSTEES;
SUCCESSOR{TC \L 2 " RESIGNATION, DISCHARGE OR REMOVAL OF TRUSTEES;
SUCCESSOR"}.
The Company Trustee shall not resign until receipt by the
Resident Trustee of a Snake Loan Default Notice. The Resident Trustee and,
after receipt by the Resident Trustee of a Snake Loan Default Notice, the
Company Trustee, may resign and be discharged of the trust created by this
Agreement by executing an instrument in writing and mailing a copy of a notice
of resignation to the other Trustee and all Certificateholders then of record
and, until termination of the SPT Pledge Agreement, to the Secured Party, and,
until termination of the Snake Pledge Agreement, to the Collateral Agent, not
less than sixty (60) days before the date specified in such instrument when,
subject to Section 7.4(c) hereof, such resignation is to take effect, provided,
however, that no resignation of the Resident Trustee shall be effective until a
successor Resident Trustee shall have been appointed and accepted such
appointment hereunder. Upon receiving such a notice of resignation of the
Resident Trustee, the Certificateholders shall use their best efforts promptly
to appoint a successor Resident Trustee in the manner, having the
responsibilities and meeting the qualifications hereinafter provided by written
instrument or instruments delivered pursuant to Section 8.4 to such resigning
Resident Trustee and the successor Resident Trustee and the Company Trustee.
Except as provided in subsection (b) of this Section 7.4, the appointment of any
successor Resident Trustee shall be approved by all Certificateholders and, as
long as the Snake Pledge Agreement is in effect, the Collateral Agent. The
Certificateholders may remove the Company Trustee for any reason and appoint a
successor Company Trustee by written instrument or instruments signed by all the
Certificateholders and, as long as the Snake Pledge Agreement is in effect, the
Collateral Agent (which consent will not be unreasonably withheld), and
delivered to the Company Trustee, the Resident Trustee and the successor Company
Trustee. Upon resignation of the Company Trustee, the Resident Trustee shall
act as the Company Trustee hereunder.
In case at any time the Resident Trustee shall resign and no
successor Resident Trustee shall have been appointed within sixty (60) days
after notice of such resignation has been filed and mailed as required by
Section 7.4(a), the resigning Resident Trustee may forthwith apply to a court of
competent jurisdiction for the appointment of a successor Resident Trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor Resident Trustee.
Any successor Trustee appointed hereunder shall promptly execute
and deliver to the Certificateholders, the retiring Trustee and the other
Trustees an instrument accepting such appointment hereunder, and the successor
Trustee without any further act, deed or conveyance shall become vested with all
the rights, powers, duties and obligations of its predecessor hereunder with
like effect as if originally named a Trustee herein and shall be bound by all
the terms and conditions of this Agreement. Upon the request of the successor
Trustee, the retiring Trustee shall, upon payment to the retiring Trustee of all
amounts to which it is entitled pursuant to this Agreement, execute and deliver
an instrument transferring to the successor Trustee all the rights and powers of
the retiring Trustee; and the retiring Trustee shall transfer, deliver and pay
over to the successor Trustee all of the Trust Property at the time held by it,
if any, together with all necessary instruments of transfer and assignment or
other documents properly executed necessary to effect such transfer and such of
the records or copies thereof maintained by the retiring Trustee in the
administration hereof as may be requested by the successor Trustee and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. Any resignation or removal of a Trustee and appointment of a
successor Trustee pursuant to this Section 7.4 shall become effective upon such
acceptance of appointment by the successor Trustee.
Any corporation into which a Trustee may be merged or with which
it may be consolidated, or any corporation resulting from any merger or
consolidation to which a Trustee shall be a party, shall be a successor Trustee
under this Agreement without the execution, delivery or filing of any paper,
instrument or further act to be done on the part of the parties hereto, anything
herein, or in any agreement relating to such merger or consolidation, by which
the predecessor corporation may seek to retain certain powers, rights and
privileges theretofore obtaining for any period of time following such merger or
consolidation, to the contrary notwithstanding; provided that such corporation
shall meet the qualifications set forth in Section 7.5 hereof.
Upon the happening of any of the events described in this
Section 7.4 that requires an amendment to the Certificate of Trust under the
Business Trust Statute, the successor Trustee shall cause an amendment to the
Certificate of Trust to be filed with the Secretary of State of the State of
Delaware, in accordance with the provisions of Section 3810 of the Business
Trust Statute.
{PRIVATE } QUALIFICATION OF THE RESIDENT TRUSTEE{TC \L 2 "
QUALIFICATION OF THE RESIDENT TRUSTEE"}. The Resident Trustee shall at all
times be a banking corporation or a banking association organized and doing
business under the laws of the United States or any state thereof, having its
principal place of business in the State of Delaware, having all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on a trust business and having at all times an
aggregate capital, surplus, and undivided profits of not less than $100,000,000.
{PRIVATE } APPOINTMENT OF ADDITIONAL TRUSTEES{TC \L 2 "
APPOINTMENT OF ADDITIONAL TRUSTEES"}. At any time or times, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Property may at the time be located, the Company Trustee, by an
instrument in writing, may appoint one or more individuals or corporations to
act as separate trustees of all or any part of the Trust Property to the full
extent that local law makes it necessary for such separate trustees to act
alone.
{PRIVATE } NOT ACTING IN INDIVIDUAL CAPACITY{TC \L 2 " NOT ACTING
IN INDIVIDUAL CAPACITY"}. Except as otherwise expressly provided herein, in
acting hereunder, each Trustee acts solely as Trustee of this Trust and not in
its individual capacity and, except as so provided, all persons having any claim
against any Trustee by reason of the transactions contemplated hereby shall look
only to the Trust Property for payment or satisfaction thereof; provided,
however, that the provisions of Article VII shall not protect any Trustee (in
either capacity) against any liability to the Certificateholders to which it
would otherwise be subject by reason of (i) such Trustee's bad faith, willful
misconduct or gross negligence in the performance of its duties, (ii) the
inaccuracy of any representation or warranty contained in Article V hereof
expressly made by such Trustee or (iii) taxes, fees or other charges on, based
on or measured by any fees, commissions or compensation received by such Trustee
in connection with any of the transactions contemplated by this Agreement.
{PRIVATE }
MISCELLANEOUS{TC \L 1 "
MISCELLANEOUS"}
{PRIVATE } BENEFIT OF AGREEMENT{TC \L 2 " BENEFIT OF
AGREEMENT"}. All the representations, warranties, covenants and agreements
contained in this Agreement by or on behalf of ASC, the Certificateholders or
any Trustee shall bind, and inure to the benefit of, their respective successors
and permitted assigns. Each of the Secured Party and the Collateral Agent is an
intended third-party beneficiary of this Agreement (including without limitation
Sections 2.4, 2.8, 7.4(a), 8.3 and 8.5) and the provisions hereof are
enforceable directly by the Collateral Agent until such time as the Resident
Trustee shall have received the Senior Note Payoff Notice, and then by Secured
Party until such time as the Snake River Loan Notes have been paid in full. Any
provision hereof relating to the Collateral Agent shall cease to be applicable
following receipt by the Resident Trustee of the Senior Note Payoff Notice from
the Collateral Agent and any provision relating to Secured Party shall cease to
be applicable following receipt by the Resident Trustee of a notice from Secured
Party stating that the Snake River Loan Notes and all obligations in respect
thereof have been paid in full.
{PRIVATE } SEVERABILITY{TC \L 2 " SEVERABILITY"}. If any one or
more of the covenants, agreements, provisions or terms of this Agreement 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 Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement 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.
{PRIVATE } AMENDMENTS AND WAIVERS{TC \L 2 " AMENDMENTS AND
WAIVERS"}. Except as otherwise expressly provided herein, this Agreement may be
amended and compliance with any provision hereof may be waived by the Trustees
or the Certificateholders only if such amendment or waiver is consented to in
writing by all Certificateholders and (i) prior to receipt by Resident Trustee
of a Senior Note Payoff Notice, the Collateral Agent and (ii) thereafter, until
such time as the Snake River Loan Notes have been paid in full, the Secured
Party; provided, however, that no amendment shall alter the responsibilities,
liabilities, rights, compensation, indemnities or exculpations of any Trustee
without the prior written consent of the Trustee affected thereby. In addition
to the consents required by this Section, any amendment to any provision which
would adversely affect any indemnified Person shall require the consent of such
indemnified Person.
{PRIVATE } NOTICES{TC \L 2 " NOTICES"}. Any notice, demand,
consent, direction or instruction to be given to the Resident Trustee under this
Agreement shall be in writing and shall be duly given if mailed or delivered to
the Trustee at: Wilmington Trust Company, Trustee for Amalgamated Collateral
Trust, Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890-0001, Attention: Corporate Trust Administration; or such other address as
shall be specified by the Resident Trustee in a notice to the Certificateholders
given in accordance with this Section.
Any notice, demand, direction or instruction to be given to the
Company Trustee or the Depositor under this Agreement shall be in writing and
shall be duly given if mailed or delivered to it at c/o Valhi, Inc., Three
Lincoln Centre, 5430 LBJ Freeway, Suite 1700, Dallas, Texas 75240-2697.
Any notice or other communication to be given to Certificateholders
(other than ASC) under this Agreement shall be in writing and shall be duly
given if mailed or delivered to each Certificateholder at the time such notice
or other communication is given at the address for such Certificateholder
contained in the records maintained by the Resident Trustee pursuant to Section
7.2 hereof. If mailed, any notice or other communication shall be effective 72
hours after being deposited in the United States mail, first class postage
prepaid.
{PRIVATE } TERMINATION OF THIS AGREEMENT: NO POWER TO REVOKE OR
WITHDRAW TRUST PROPERTY{TC \L 2 " TERMINATION OF THIS AGREEMENT\: NO POWER TO
REVOKE OR WITHDRAW TRUST PROPERTY"}.
The Trust shall be terminated in accordance with this Section 8.5
immediately after the earlier to occur of (i) a sale or liquidation by the Trust
of all or substantially all of the Trust Property or (ii) the election of any
Certificateholder to dissolve and terminate the Trust, which election shall be
made in a notice given in accordance with Section 8.4 to the Resident Trustee,
the Company Trustee, each other Certificateholder, and until termination of the
SPT Pledge Agreement, the Secured Party, and until termination of the Snake
Pledge Agreement, the Collateral Agent; provided that, prior to receipt by the
Resident Trustee of a Senior Note Payoff Notice, the Trust shall not be
terminated without the prior written consent of the Collateral Agent. Upon any
such event, a liquidator designated by the Certificateholders shall, to the
extent directed by the Certificateholders, and subject to the requirements in
Section 3808(e) of the Business Trust Statute, proceed with reasonable
promptness to liquidate the Trust's assets, terminate its business, establish
such reserves in such amounts and for such periods as the liquidator shall
reasonably determine to be required to pay all liabilities of the Trust (whether
actual, asserted or determined by the liquidator to be reasonably likely of
assertion) and distribute the remaining proceeds of such liquidation to the
Certificateholders in accordance with Section 2.4. Liquidating distributions
shall be made in cash or in kind, as directed by the Certificateholders.
Except as expressly provided in Section 8.5(a) hereof, neither
ASC nor any other Certificateholder shall be entitled to revoke the Trust
established hereunder.
Upon the winding up of the Trust and its termination, the
Resident Trustee, upon the direction of the liquidator, shall cause the
Certificate of Trust of the Trust to be canceled by filing a certificate of
cancellation with the Delaware Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute. Such certificate may
be signed by the Resident Trustee and shall not require the signature of any
other Trustee.
{PRIVATE } NATURE OF INTEREST IN TRUST PROPERTY{TC \L 2 "
NATURE OF INTEREST IN TRUST PROPERTY"}. Neither ASC nor any other
Certificateholder shall have legal title to any part of the Trust Property. No
transfer, by operation of law or otherwise, of any right, title or interest in
the Trust of any Certificateholder shall operate to terminate this Agreement or
the trusts hereunder or entitle any successor transferee to an accounting or to
the transfer to it of legal title to any part of the Trust Property.
{PRIVATE } GOVERNING LAW{TC \L 2 " GOVERNING LAW"}. THIS
AGREEMENT 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 AGREEMENT AND THE INTERPRETATION OF THE PROVISIONS OF THIS
AGREEMENT.
{PRIVATE } COUNTERPARTS{TC \L 2 " COUNTERPARTS"}. This
Agreement may be executed and delivered in any number of counterparts, and such
counterparts taken together shall constitute one and the same instrument.
{PRIVATE } LIMITATIONS ON RIGHTS OF OTHERS{TC \L 2 "
LIMITATIONS ON RIGHTS OF OTHERS"}. Except as provided in Sections 2.2(b),
2.4(a), 2.8, 3.2(c), 7.1(e), 7.3, 7.4(a), 8.2, 8.3, 8.5(a) and 8.11, nothing in
this Agreement, whether express or implied, shall be construed to give to any
person other than the Trustees and the Certificateholders any legal or equitable
right, remedy or claim in the Trust Property or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein; provided
that each of the Secured Party and the Collateral Agent is a third-party
beneficiary of this Agreement as set forth in Section 8.1.
{PRIVATE } REFERENCES TO SECTIONS{TC \L 2 " REFERENCES TO
SECTIONS"}. References to sections used herein shall refer to sections of this
Agreement unless otherwise specified herein.
{PRIVATE } MERGER AND CONSOLIDATION{TC \L 2 " MERGER AND
CONSOLIDATION"}. No merger or consolidation or conversion of the Trust with or
into any other business trust, common-law trust, corporation, partnership
(general or limited), unincorporated business or other Person may be effected,
and no agreement of merger or consolidation or conversion may be entered into by
the Trust, unless and until such merger or consolidation or conversion and such
agreement is approved in writing by the Secured Party and the Collateral Agent.
Each of the Secured Party and the Collateral Agent is an intended third-party
beneficiary of the provisions contained in this Section.
{PRIVATE } OPERATION OF THE TRUST{TC \L 2 " OPERATION 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 business
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.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first above written.
ASC HOLDINGS, INC., as Depositor and Company
Trustee
By:
Name:
Title:
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Resident Trustee
By:
Name:
Title:
EXHIBIT A
FORM OF CERTIFICATE OF BENEFICIAL INTEREST
THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS. THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY
THIS CERTIFICATE SHALL NOT BE SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE AGREEMENT (AS DEFINED BELOW).
CERTIFICATE OF BENEFICIAL INTEREST
AMALGAMATED COLLATERAL TRUST
THIS CERTIFIES THAT ____________________ (the "OWNER") is the
registered owner of a _____% undivided beneficial interest in the Amalgamated
Collateral Trust existing under the laws of the State of Delaware pursuant to
the Deposit Trust Agreement dated as of May 14, 1997 (as amended from time to
time, the "AGREEMENT"; the terms herein are used as therein defined), between
Wilmington Trust Company and the other Trustee named therein, not in their
individual capacities but solely in their capacities as trustees under the
Agreement (the "TRUSTEES"), and ASC referred to therein. Wilmington Trust
Company, not in its individual capacity but solely as Trustee, has executed this
Certificate of Beneficial Interest by one of its duly authorized signatories as
set forth below.
This Certificate of Beneficial Interest is one of the Certificates of
Beneficial Interest referred to in the Agreement and is issued under and is
subject to the terms, provisions and conditions of the Agreement to which the
owner of this Certificate of Beneficial Interest by virtue of the acceptance
hereof agrees and by which the owner hereof is bound. Reference is hereby made
to the Agreement for a statement of the rights of the owner of this Certificate
of Beneficial Interest, as well as for a statement of the terms and conditions
of the Trust created by the Agreement.
IN WITNESS WHEREOF, Wilmington Trust Company, not in its individual
capacity but solely as Trustee, has caused this Certificate of Beneficial
Interest to be executed as of the date hereof by one of its Authorized Officers,
by his or her manual signature. This Certificate of Beneficial Interest shall
not be valid or enforceable for any purpose until it shall have been so signed
by an Authorized Officer of Wilmington Trust Company.
Dated: ________________, ____
AMALGAMATED COLLATERAL TRUST
By: WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Trustee
By:
Name:
Title:
EXHIBIT B
FORM OF ASSIGNEE'S AGREEMENT
[DATE]
Dear Sirs:
We refer to the Deposit Trust Agreement, dated as of May 14, 1997 (as
amended from time to time, the "DEPOSIT TRUST AGREEMENT"), between ASC referred
to therein, Wilmington Trust Company, a Delaware banking corporation, as trustee
and the other trustee named therein (each a "TRUSTEE") of Amalgamated Collateral
Trust, a Delaware business trust (the "TRUST") formed pursuant to the Deposit
Trust Agreement.
1. We understand that our Certificates of Beneficial Interest are
not being registered under the Securities Act of 1933, as amended (the "1933
ACT") or any state securities laws and are being sold to us in a transaction
that is exempt from the registration requirements of the 1933 Act and applicable
state securities laws.
2. We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
our Certificates of Beneficial Interest, and we are able to bear the economic
risk of investment in our Certificates of Beneficial Interest.
3. We are acquiring our Certificates of Beneficial Interest for our
own account or for accounts as to which we exercise sole investment discretion
and not with a view to any distribution of our Certificates of Beneficial
Interest.
4. We understand that each of our Certificates of Beneficial
Interest bears a legend to substantially the following effect:
THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS. THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY
THIS CERTIFICATE SHALL NOT BE SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE AGREEMENT (AS DEFINED BELOW).
5. We hereby further agree to be bound by all the terms and
conditions of our Certificates of Beneficial Interest and the obligations of an
owner of a Certificate of Beneficial Interest under the Deposit Trust Agreement.
Very truly yours,
Name of Purchaser
By: __________________________
Name:
Title:
Accepted as of _______________, ____
AMALGAMATED COLLATERAL TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By:
Name:
Title:
ASC HOLDINGS, INC.,
DEPOSITOR AND COMPANY TRUSTEE
AND
WILMINGTON TRUST COMPANY,
RESIDENT TRUSTEE
DEPOSIT TRUST AGREEMENT
OF
AMALGAMATED COLLATERAL TRUST
DATED AS OF MAY 14, 1997
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS ........................ 2
1.1 DEFINITIONS......................................... 2
ARTICLE II
DECLARATION OF BUSINESS TRUST; ISSUANCE
AND TRANSFER OF CERTIFICATES OF BENEFICIAL
INTEREST; DUTIES OF TRUSTEES; NO FILING .......... 5
2.1 Declaration of Business Trust....................... 5
2.2 Transfer of Trust Property to the Trust............. 6
2.3 ISSUANCE AND TRANSFER OF CERTIFICATES OF BENEFICIAL INTEREST
7
2.4 PAYMENTS AND DISTRIBUTIONS.......................... 9
2.5 TAX REPORTING....................................... 10
2.6 FURTHER ASSURANCES.................................. 10
2.7 DUTIES OF TRUSTEES.................................. 11
2.8 No Filing........................................... 14
2.9 Situs of Trust...................................... 15
2.10 Title to Trust Property; Action by Trustees......... 15
2.11 Allocations......................................... 15
2.12 Distributions of Rights to Retained Amounts......... 15
ARTICLE III
AUTHORIZATION OF TRUSTEES; PLEDGE OF COLLATERAL ...... 16
3.1 AUTHORIZATION OF TRUSTEE............................ 16
3.2 PLEDGE OF COLLATERAL................................ 16
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
AND THE COMPANY TRUSTEE .................. 17
4.1 SECURITIES LAW REPRESENTATIONS...................... 17
4.2 OTHER REPRESENTATIONS AND WARRANTIES................ 17
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE RESIDENT TRUSTEE .................. 19
5.1 WILMINGTON TRUST COMPANY............................ 19
ARTICLE VI
CERTAIN COVENANTS OF DEPOSITOR, OTHER OWNERS OF
CERTIFICATES OF BENEFICIAL INTEREST, AND THE TRUST..... 20
6.1 TITLE TO TRUST PROPERTY............................. 20
6.2 NOTIFICATION OF TRANSFER............................ 20
6.3 INVESTMENT COMPANY.................................. 20
6.4 LIABILITY OF CERTIFICATEHOLDERS..................... 20
ARTICLE VII
CONCERNING THE TRUSTEES AND THE TRUST ........... 21
7.1 GENERAL MATTERS RELATING TO THE TRUSTEES; LIMITATION ON
OBLIGATIONS......................................... 21
7.2 BOOKS AND RECORDS................................... 22
7.3 COMPENSATION AND INDEMNIFICATION OF TRUSTEE......... 22
7.4 Resignation, Discharge or Removal of Trustees; Successor 24
7.5 QUALIFICATION OF THE RESIDENT TRUSTEE............... 25
7.6 APPOINTMENT OF ADDITIONAL TRUSTEES.................. 25
7.7 NOT ACTING IN INDIVIDUAL CAPACITY................... 26
ARTICLE VIII
MISCELLANEOUS ....................... 26
8.1 BENEFIT OF AGREEMENT................................ 26
8.2 SEVERABILITY........................................ 26
8.3 AMENDMENTS AND WAIVERS.............................. 27
8.4 Notices............................................. 27
8.5 TERMINATION OF THIS AGREEMENT: NO POWER TO REVOKE OR WITHDRAW
TRUST PROPERTY...................................... 28
8.6 NATURE OF INTEREST IN TRUST PROPERTY................ 28
8.7 GOVERNING LAW....................................... 28
8.8 COUNTERPARTS........................................ 29
8.9 LIMITATIONS ON RIGHTS OF OTHERS..................... 29
8.10 REFERENCES TO SECTIONS.............................. 29
8.11 MERGER AND CONSOLIDATION............................ 29
8.12 OPERATION OF THE TRUST.............................. 29
EXHIBITS
Form of Certificate of Beneficial Interest A
Form of Transferee Letter B