SECOND AMENDMENT TO COMPANY AGREEMENT
This Second Amendment (the "SECOND AMENDMENT") is dated as of November 30,
1998 between Amalgamated Collateral Trust, a Delaware business trust (the
"TRUST"), Snake River Sugar Company, an Oregon cooperative corporation ("SRSC")
and The Amalgamated Sugar Company LLC, a Delaware limited liability company (the
"COMPANY").
RECITALS:
WHEREAS, ASC Holdings, Inc. (formerly known as The Amalgamated Sugar
Company) a Utah corporation ("AGM"), SRSC and the Company are parties to the
Company Agreement dated January 3, 1997, effective for tax and accounting
purposes as of December 31, 1996, as amended by AGM, SRSC, the Trust and the
Company pursuant to the First Agreement dated May 14, 1997 (as so amended, the
"COMPANY AGREEMENT");
WHEREAS capitalized terms used in this Second Amendment shall have the
meanings given to them in the Company Agreement, except as otherwise provided in
this Second Amendment;
WHEREAS the Company desires to enter into certain operating leases related
to two beet storage buildings at the Mini-Cassia facility and certain beet
processing equipment for beet slicing enhancements at such facility, which will
provide for monthly aggregate lease payments not to exceed $3.1 million per year
through December 31, 2008;
WHEREAS the Company, by signing this Second Amendment, represents that the
estimated reduction in operating expenses which are expected to result from the
use of such facilities and equipment referred to in the immediately preceding
paragraph, primarily resulting from reduced beet freight expense, is
approximately $5 million per year;
WHEREAS SRSC desires to enter into an agreement with the Company, attached
as Exhibit A to this Second Amendment, whereby SRSC will voluntarily reduce the
aggregate payment it receives for sugarbeets from the amount that SRSC would
otherwise be entitled to receive pursuant to Exhibit D-7 to the Formation
Agreement in an amount per year equal to rental payments for the Operating
Leases for the 1998 through 2006 crop years ending September 30, 1999 through
September 30, 2007 (the "Beet Contract Amendment"); and
WHEREAS the definition of Distributable Cash contained in the Company
Agreement, did not anticipate or specifically provide for an actual payment for
sugarbeets by the Company that was less than the Beet Payment.
NOW, THEREFORE, the parties hereto agree as follows:
1. AMENDMENTS TO THE DEFINITIONS.
(a) The definition of Distributable Cash contained in Article II of the
Company Agreement shall be and is hereby amended by adding the following
immediately prior to "(x)":
"(w) to the extent that all or any portion of the lease rental
payment in respect of the Operating Leases is offset by an equal
permanent reduction in amounts otherwise payable to SRSC pursuant to
Exhibit D-7 to the Formation Agreement for the cost of sugarbeets,
then, at the option of the Company, expenses to reflect the cost to
purchase sugarbeets for purposes of calculating Distributable Cash
shall not be reduced for any such permanent reduction in amounts
otherwise payable to SRSC for the purchase of sugarbeets, except,
however, that the Company will be required to use all or a portion of
such permanent reduced cost to purchase sugarbeets for purposes of
calculating Distributable Cash if the Company would otherwise not be
able to distribute fully $2,224,781 per month to Members pursuant to
Section 9.3.1(a) of the Company Agreement,"
(b) The following new definition shall be and is hereby added to Article
II of the Company Agreement:
"OPERATING LEASES - means certain operating leases related to two beet
storage buildings at the Company's Mini-Cassia facility and certain
beet processing equipment for beet slicing enhancements at such
facility; provided, however, that the monthly aggregate lease payments
for such operating leases do not to exceed $3.1 million per year, and
provided further that such operating leases do not extend beyond
December 31, 2008."
2. BEET CONTRACT AMENDMENT. The parties agree that Exhibit D-7 to the
Formation Agreement (the Memorandum of Agreement between the Snake River
Sugar Company and the Company relating to the purchase of beets by the
Company) shall be and is hereby amended by the Beet Contract Amendment for
all purposes relating to the Company Agreement.
3. EFFECTIVE DATE OF CHANGES MADE BY THIS SECOND AMENDMENT. The changes made
by this Second Agreement shall be applied for all determinations made
pursuant to the Company Agreement on or after October 1, 1998.
4. REPRESENTATIONS AND WARRANTIES. Each of the parties represents and
warrants that the execution, delivery and performance by such party of this
Second Amendment are within its powers, have been duly authorized by all
necessary action and do not and will not contravene or conflict with any
provision of law applicable to such party, the charter, declaration of
trust or bylaws of such party, or any order, judgment or decree of any
court or other agency of government or any contractual obligation binding
upon such party, and this Second Amendment and the Company Agreement as
amended as of the date hereof are the legal, valid and binding obligations
of such party enforceable against such party in accordance with its terms.
5. MISCELLANEOUS.
(a) Captions. Section captions used in this Second Amendment are for
convenience only, and shall not affect the construction of this Second
Amendment.
(b) Governing Law. This Second Amendment shall be a contract made
under and governed by the laws of the State of Delaware, without regard
to conflict of laws principles.
(c) Counterparts. This Second Amendment may be executed in any
number of counterparts, and each such counterpart shall be deemed to be
an original, but all such counterparts shall together constitute but
one and the same amendment.
(d) Successors and Assigns. This Second Amendment shall be binding
upon the parties and their respective successors and assigns, and shall
inure to the sole benefit of the parties their successors and assigns.
This Second Amendment to the Company Agreement is dated as of the day and
year first above written.
AMALGAMATED COLLATERAL TRUST
By ASC HOLDINGS, INC., as Company Trustee
By: /s/ Steven L. Watson
Name: Steven L. Watson
Title: President
SNAKE RIVER SUGAR COMPANY
By: /s/ Allan M. Lipman, Jr.
Name: Allan M. Lipman, Jr.
Title: President
THE AMALGAMATED SUGAR COMPANY LLC
By: /s/ Lawremce L. Corry
Name: Lawrence L. Corry
Title: President