VOTING RIGHTS COLLATERAL DEPOSIT AGREEMENT{PRIVATE }
This COLLATERAL DEPOSIT AGREEMENT (this "AGREEMENT") is dated as of
May 14, 1997 and entered into by and between SNAKE RIVER SUGAR COMPANY, an
Oregon cooperative (the "COMPANY"), Valhi, Inc., a Delaware corporation
("VALHI") and FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Collateral Agent
(the "COLLATERAL AGENT") for the holders of the Notes referred to below.
PRELIMINARY STATEMENTS
Pursuant to those certain Note Purchase Agreements (the "NOTE
PURCHASE AGREEMENTS," the terms defined therein and not otherwise defined herein
being used herein as therein defined), each dated May 14, 1997, between the
Company and the purchasers referred to therein (the "PURCHASERS"), the Company
has issued to the Purchasers $100,000,000 aggregate principal amount of its
10.80% Senior Notes due April 30, 2009 (said Senior Notes, as they may hereafter
be amended, supplemented or otherwise modified from time to time, being the
"NOTES").
Pursuant to a Loan and Security Agreement dated as of January 3,
1997, as amended and restated by the Subordinated Loan Agreement dated as of May
14, 1997, Company has issued to Valhi a subordinated note in the principal
amount of $80,000,000 (as such subordinated note may be amended, renewed or
otherwise modified from time to time the "SUBORDINATED NOTE"). The Subordinated
Note is subordinated to the Notes pursuant to the Subordination Agreement, dated
as of the date hereof, by Valhi and the Company in favor of the holders of the
Notes (as it may be amended, supplemented or otherwise modified from time to
time the "SUBORDINATION AGREEMENT").
Valhi is the indirect holder of 100% of the outstanding stock of
the sole beneficial owner of ASC Holdings, Inc. ("ASC").
Pursuant to the Company Agreement (the "COMPANY AGREEMENT") dated
January 3, 1997 as amended May 14, 1997 among The Amalgamated Sugar Company LLC,
a Delaware limited liability company, the Company and ASC, the Company received
the SR Interest and ASC received the AGM Interest (each as defined in the
Company Agreement).
Pursuant to the Deposit Trust Agreement, dated as of the date
hereof (the "DEPOSIT TRUST AGREEMENT"), between ASC, as depositor and company
trustee, and Wilmington Trust Company, as resident trustee, and to the First
Amendment to the Company Agreement dated as of May 14, 1997, the AGM Interest
was transferred and assigned by ASC to The Amalgamated Collateral Trust, a
Delaware business trust (the "TRUST") in exchange for a beneficial interest in
the Trust.
The AGM Interest is entitled to certain voting and other
consensual rights under certain conditions as set forth in the Company Agreement
(the "AGM INTEREST RIGHTS").
Pursuant to the Voting Rights and Forbearance Agreement, dated as
of the date hereof, among the Trust, ASC, as the holder of the beneficial
interest in the Trust, ASC, as the company trustee under the Deposit Trust
Agreement and the Collateral Agent (as it may be amended, supplemented or
otherwise modified from time to time the "VOTING RIGHTS AGREEMENT"), ASC will be
entitled as Company Trustee to exercise on behalf of the Trust the AGM Interest
Rights under certain circumstances (as set forth more fully in the Deposit Trust
Agreement and the Voting Rights Agreement), which circumstances may include the
making of a cash deposit by the Company with the Collateral Agent (or in lieu
thereof the delivery to the Collateral Agent of a Letter of Credit) to be held
as collateral security for the Company's obligations under the Notes and the
Note Purchase Agreements. As contemplated in the Voting Rights Agreement, (i)
such cash deposit would be made by the Company from the proceeds of a loan from
Valhi to the Company which loan will be subordinated to the Notes pursuant to
the Subordination Agreement and (ii) such Letter of Credit would be obtained by
Valhi, any reimbursement obligation in respect thereof being non-recourse to the
Company.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Purchasers to purchase Notes under the Note Purchase Agreements and
direct the Collateral Agent to enter into the Voting Rights Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company hereby agrees with Collateral Agent as follows:
DEFINITIONS. The following terms used in this Agreement shall have
the following meanings:
"CASH DEPOSIT" or "CASH DEPOSITS" means any cash deposited into the
Payment Deposit Account pursuant to this Agreement and the Voting Rights
Agreement, including cash obtained through a drawing on a Letter of Credit.
"CASH EQUIVALENTS" means, as at any date of determination,
(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 such date; (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 such
date and, at the time of acquisition thereof, having the highest rating
obtainable from either Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors
Service, Inc.; (iii) commercial paper maturing no more than thirty (30) days
from such date and, at the time of acquisition thereof, having the highest
rating obtainable from either Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors
Service, Inc.; and (iv) certificates of deposit or bankers' acceptances maturing
within thirty (30) days from such date 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.
"INVESTMENTS" means those investments, if any, made by the Collateral
Agent pursuant to Section 5.
"LETTER OF CREDIT" means an irrevocable letter of credit, in form and
substance satisfactory to the Required Holders, (i) issued by a bank organized
in the United States having (A) a long-term debt rating of "A" or better from
Standard & Poor's Ratings Service, a division of McGraw Hill Companies, or "A2"
or better from ▇▇▇▇▇'▇ Investors Services, Inc. and (B) a combined capital and
surplus in excess of $500,000,000, (ii) the beneficiary of which is the
Collateral Agent, (iii) with a face amount of not less than that amount called
for by the Voting Rights Agreement and (iv) upon which the Collateral Agent may
make a drawing at sight upon presentation of a draft. The Collateral Agent
shall not be required to present any documentation (other than a sight draft) in
order to draw upon any Letter of Credit.
"PAYMENT DEPOSIT" means (i) the Payment Deposit Account and all
amounts from time to time on deposit therein, (ii) any Cash Deposits, (iii) all
Investments, including all certificates and instruments from time to time
representing or evidencing such Investments and any account or accounts in which
such Investments may be held by, or in the name of, the Collateral Agent for or
on behalf of the Company, (iv) all notes, certificates of deposit, checks and
other instruments and all deposits and securities from time to time hereafter
transferred to or otherwise possessed by, or held in the name of, the Collateral
Agent for or on behalf of the Company in substitution for or in addition to any
or all of the Payment Deposit, (v) any Letter of Credit, (vi) all interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the Payment Deposit, and (vii) to the extent not covered by clauses (i)
through (vi) above, all proceeds of any or all of the foregoing Payment Deposit.
"PAYMENT DEPOSIT ACCOUNT" means the deposit account established and
maintained by the Collateral Agent pursuant to Section 2 hereof.
"SECURED OBLIGATIONS" means all obligations and liabilities of every
nature of Company now or hereafter existing under or arising out of or in
connection with the Note Purchase Agreements, the Notes and the Collateral
Documents and all extensions or renewals thereof, whether for principal,
interest (including without limitation interest that, but for the filing of a
petition in bankruptcy with respect to Company, would accrue on such
obligations), fees, expenses, indemnities or otherwise, whether voluntary or
involuntary, direct or indirect, absolute or contingent, liquidated or unliqui-
dated, whether or not jointly owed with others, and whether or not from time to
time decreased or extinguished and later increased, created or incurred, and all
or any portion of such obligations or liabilities that are paid, to the extent
all or any part of such payment is avoided or recovered directly or indirectly
from Collateral Agent or any holder of a Note as a preference, fraudulent
transfer or otherwise, and all obligations of every nature of Company now or
hereafter existing under this Agreement.
PAYMENT DEPOSIT ACCOUNT; FUNDING OF ACCOUNT.
The Collateral Agent will establish and maintain at its office at
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Trust Department, Salt Lake City, Utah, as a
blocked account in the name of the Collateral Agent and under the sole dominion
and control of the Collateral Agent, a deposit account designated as "Snake
River Voting Rights Payment Deposit Account."
Deposits to the Payment Deposit Account shall be made pursuant to
Section 3 of the Voting Rights Agreement. The Payment Deposit shall be returned
to as set forth in Section 3(c) of the Voting Rights Agreement.
Any interest received in respect of Investments of any amounts
held in the Payment Deposit Account shall be delivered by the Collateral Agent
to the Company on the last Business Day of each March, June, September and
December; provided that such interest shall be retained in the Payment Deposit
Account to the extent necessary to keep the amount held in the Payment Deposit
Account above the minimum level called for in the Voting Rights Agreement;
provided further that the Collateral Agent shall not deliver to the Company any
such interest received in respect of Investments if an Event of Default or
Default with respect to the Secured Obligations has occurred and is then
continuing.
If a Letter of Credit is part of the Payment Deposit, then prior
to the date (the "Drawing Date") which is 30 days before the expiration of such
Letter of Credit (or any replacement Letter of Credit issued pursuant to this
Section 2(d)), Valhi shall cause to be issued in favor of the Collateral Agent a
Letter of Credit to replace such expiring Letter of Credit or shall cause the
expiration date of such Letter of Credit to be extended. If Valhi shall not
have caused to be issued in favor of the Collateral Agent such replacement
Letter of Credit or have caused such expiration date to be extended on or before
the Drawing Date, the Collateral Agent shall draw upon the expiring Letter of
Credit and deposit the proceeds thereof in the Payment Deposit Account to be
held as part of the Payment Deposit.
PLEDGE OF SECURITY FOR SECURED OBLIGATIONS. The Company hereby
pledges and assigns to the Collateral Agent, and hereby grants to the Collateral
Agent a security interest in, all of the Company's right, title and interest in
and to the Payment Deposit as collateral security for the prompt payment or
performance in full when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including the
payment of amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section362(a)), of
all the Secured Obligations.
DELIVERY OF PAYMENT DEPOSIT. Deposits into the Payment Deposit
Account shall be in the form of a Cash Deposit, except that, pursuant to the
Voting Rights Agreement, ASC may elect to cause Valhi to cause a Letter of
Credit to be issued in favor of the Collateral Agent.
INVESTMENT OF AMOUNTS IN THE PAYMENT DEPOSIT ACCOUNT. Cash held by
the Collateral Agent in the Payment Deposit Account shall not be invested or
reinvested except as provided in this Section 5.
Except as otherwise provided in Section 13, any cash on deposit
in the Payment Deposit Account shall, so long as no Event of Default or Default
has occurred and is continuing, be invested by the Collateral Agent, in its own
name, in such Cash Equivalents from time to time designated by the Company in
written notices to the Collateral Agent.
The Collateral Agent is hereby authorized to sell, and shall
sell, all or any designated part of the securities constituting part of the
Payment Deposit (i) so long as no Event of Default or Default with respect to
the Secured Obligations shall have occurred and be continuing, upon receipt of
appropriate written instructions from the Company or (ii) in any event if such
sale is necessary to permit the Collateral Agent to perform its duties
hereunder. The Collateral Agent shall have no responsibility for any loss
resulting from a fluctuation in interest rates or otherwise. Subject to the
provisions of Section 2(c), any interest received in respect of securities
constituting part of the Payment Deposit, and the net proceeds of the sale or
payment of any such securities, shall be held in the Payment Deposit Account by
the Collateral Agent pending investment thereof pursuant to Section 5(a).
The Payment Deposit Account shall be subject to such applicable
laws, and such applicable regulations of the Board of Governors of the Federal
Reserve System and of any other appropriate banking or governmental authority,
as may now or hereafter be in effect.
REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
as follows:
Ownership of Payment Deposit. The Company is (or at the time of
transfer thereof to the Collateral Agent will be) the legal and beneficial owner
of the Payment Deposit from time to time transferred by the Company to the
Collateral Agent, free and clear of any Lien except for the security interest
created by this Agreement.
Governmental Authorizations. No authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for (i) the grant by the Company of the security
interest granted hereby, (ii) the execution, delivery or performance of this
Agreement by the Company or (iii) the perfection or exercise by the Collateral
Agent of its rights and remedies hereunder (except as may have been taken by or
at the direction of the Company) other than the filing of appropriate UCC-1
financing statements.
Perfection. Assuming continued possession by the Collateral
Agent of the Payment Deposit, the pledge and assignment of the Payment Deposit
pursuant to this Agreement creates a valid and perfected first priority security
interest in the Payment Deposit, securing the payment of the Secured
Obligations.
Other Information. All information heretofore, herein or
hereafter supplied to the Collateral Agent by or on behalf of the Company with
respect to the Payment Deposit is accurate and complete in all material
respects.
FURTHER ASSURANCES. The Company agrees that from time to time, at
the expense of the Company, the Company will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that the Collateral Agent may request, in order to
perfect and protect any security interest granted or purported to be granted
hereby or to enable the Collateral Agent to exercise and enforce its rights and
remedies hereunder with respect to the Payment Deposit. Without limiting the
generality of the foregoing, the Company will: (i) execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Collateral
Agent may request, in order to perfect and preserve the security interests
granted or purported to be granted hereby and (ii) at the Collateral Agent's
request, appear in and defend any action or proceeding that may affect the
Company's title to or the Collateral Agent's security interest in all or any
part of the Payment Deposit.
TRANSFERS AND OTHER LIENS. The Company agrees that it will not
(a) sell, assign (by operation of law or otherwise) or otherwise dispose of any
part of the Payment Deposit or (b) create or suffer to exist any Lien upon or
with respect to any of the Payment Deposit, except in favor of the Collateral
Agent.
COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. The Company hereby
irrevocably appoints the Collateral Agent as the Company's attorney-in-fact,
with full authority in the place and stead of the Company and in the name of the
Company, the Collateral Agent or otherwise, from time to time in the Collateral
Agent's discretion to take any action and to execute any instrument that the
Collateral Agent may deem necessary or advisable to accomplish the purposes of
this Agreement, including without limitation (a) to file one or more financing
or continuation statements, or amendments thereto, relative to all or any part
of the Payment Deposit without the signature of the Company and (b) to receive,
endorse and collect any instruments made payable to the Company representing any
dividend, principal or interest payment or other distribution in respect of the
Payment Deposit or any part thereof and to give full discharge for the same.
COLLATERAL AGENT MAY PERFORM. If the Company fails to perform any
agreement contained herein, the Collateral Agent may itself perform, or cause
performance of, such agreement, and the expenses of the Collateral Agent
incurred in connection therewith shall be payable by the Company under Section
14.
STANDARD OF CARE. The powers conferred on the Collateral Agent
hereunder are solely to protect its interest in the Payment Deposit and shall
not impose any duty upon it to exercise any such powers. Except for the
exercise of reasonable care in the custody of the Payment Deposit in its
possession and the accounting for moneys actually received by it hereunder, the
Collateral Agent shall have no duty as to the Payment Deposit, it being
understood that the Collateral Agent shall have no responsibility for
(a) ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relating to the Payment Deposit, whether or
not the Collateral Agent has or is deemed to have knowledge of such matters,
(b) taking any necessary steps (other than steps taken in accordance with the
standard of care set forth above to maintain possession of the Payment Deposit)
to preserve rights against any parties with respect to the Payment Deposit,
(c) taking any necessary steps to collect or realize upon the Secured
Obligations or any guarantee therefor, or any part thereof, or any of the
Payment Deposit, (d) initiating any action to protect the Payment Deposit
against the possibility of a decline in market value, (e) any loss resulting
from Investments made pursuant to Section 5, except for a loss resulting from
the Collateral Agent's gross negligence or willful misconduct in complying with
Section 5, or (f) determining (i) the correctness of any statement or
calculation made by the Company in any written instructions or (ii) whether any
deposit in the Payment Deposit Account is proper. The Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of the
Payment Deposit in its possession if such Payment Deposit is accorded treatment
substantially equal to that which the Collateral Agent accords its own property
consisting of negotiable securities.
REMEDIES. If any Event of Default shall have occurred and be
continuing with respect to the Secured Obligations, the Collateral Agent may (i)
exercise in respect of the Payment Deposit all rights and remedies provided for
in the Notes, the Note Purchase Agreements and the Collateral Documents in
respect of any collateral therein defined and (ii) make a drawing on any Letter
of Credit in the face amount thereof. In addition to all other rights and
remedies provided for herein or otherwise available to it, the Collateral Agent
may exercise all the rights and remedies of a secured party on default under the
Uniform Commercial Code as in effect in any relevant jurisdiction (the "CODE")
(whether or not the Code applies to the affected Payment Deposit), and the
Collateral Agent may also in its sole discretion, without notice except as
specified below, sell the Payment Deposit or any part thereof in one or more
parcels at public or private sale, at any exchange or broker's board or at any
of the Collateral Agent's offices or elsewhere, for cash, on credit or for
future delivery, at such time or times and at such price or prices and upon such
other terms as the Collateral Agent may deem commercially reasonable,
irrespective of the impact of any such sales on the market price of the Payment
Deposit. Collateral Agent or any Noteholder may be the purchaser of all or any
part of the Payment Deposit at any such sale, and Collateral Agent, as agent for
and representative of the Noteholders (but not any Noteholder or Noteholders in
its or their respective individual capacities unless the Required Holders shall
otherwise agree in writing), shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any portion of the
Payment Deposit sold at any such public sale, to use and apply any of the
Secured Obligations as a credit on account of the purchase price for any Payment
Deposit payable by the Collateral Agent at such sale. Each purchaser at any
such sale shall hold the property sold absolutely free from any claim or right
on the part of the Company, and the Company hereby waives (to the extent
permitted by applicable law) all rights of redemption, stay and/or appraisal
which it now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted. The Company agrees that, to the
extent notice of sale shall be required by law, at least ten days' notice to the
Company of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale of the Payment Deposit
regardless of notice of sale having been given. The Collateral Agent may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned. If the proceeds of any sale or
other disposition of the Payment Deposit are insufficient to pay all the Secured
Obligations, the Company shall be liable for the deficiency and the fees of any
attorneys employed by the Collateral Agent to collect such deficiency.
APPLICATION OF PROCEEDS. If, with respect to the Secured
Obligations, any Event of Default shall have occurred and be continuing, all
cash held by the Collateral Agent as Payment Deposit and all proceeds received
by the Collateral Agent in respect of a drawing on a Letter of Credit and any
sale of, collection from, or other realization upon all or any part of the
Payment Deposit may, in the discretion of the Collateral Agent, be held by the
Collateral Agent as Payment Deposit for, and/or then, or at any other time
thereafter, applied in full or in part by the Collateral Agent against, the
Secured Obligations in the following order of priority:
FIRST: To the payment of all costs and expenses of such sale,
collection or other realization, including reasonable compensation to the
Collateral Agent and its agents and counsel, and all other expenses,
liabilities and advances made or incurred by the Collateral Agent in
connection therewith, all amounts for which the Collateral Agent is
entitled to indemnification hereunder and all advances made by the
Collateral Agent hereunder for the account of the Company, and to the
payment of all costs and expenses paid or incurred by the Collateral Agent
in connection with the exercise of any right or remedy hereunder, all in
accordance with Section 14;
SECOND: To the payment of all other Secured Obligations in such order
as the Collateral Agent shall elect; and
THIRD: To the payment to or upon the order of the Company, or to
whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct, of any surplus then remaining from such
proceeds.
INDEMNITY AND EXPENSES.
The Company agrees to indemnify the Collateral Agent from and
against any and all claims, losses and liabilities in any way relating to,
growing out of or resulting from this Agreement and the transactions
contemplated hereby (including, without limitation, enforcement of this
Agreement), except to the extent such claims, losses or liabilities result
solely from the Collateral Agent's gross negligence or willful misconduct as
finally determined by a court of competent jurisdiction.
The Company will pay to the Collateral Agent upon demand the
amount of any and all costs and expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, that the Collateral Agent
may incur in connection with (i) the administration of this Agreement, (ii) the
custody, preservation, use or operation of, or the sale of, collection from, or
other realization upon, any of the Payment Deposit, (iii) the exercise or
enforcement of any of the rights of the Collateral Agent hereunder, or (iv) the
failure by the Company to perform or observe any of the provisions hereof.
CONTINUING SECURITY INTEREST; TRANSFER OF NOTES. This Agreement
shall create a continuing security interest in the Payment Deposit and shall
(a) remain in full force and effect until the indefeasible payment in full of
the Secured Obligations, (b) be binding upon the Company, its successors and
assigns, and (c) inure, together with the rights and remedies of the Collateral
Agent hereunder, to the benefit of the Collateral Agent and its successors,
transferees and assigns. Without limiting the generality of the foregoing
clause (c), but subject to the provisions of subsection 13.2 of the Note
Purchase Agreements, any Noteholder may assign or otherwise transfer any Notes
held by it to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to the Collateral Agent
herein or otherwise.
COLLATERAL AGENT AS AGENT.
The Collateral Agent has been appointed to act as the Collateral
Agent hereunder by the Purchasers. The Collateral Agent shall be obligated, and
shall have the right hereunder, to make demands, to give notices, to exercise or
refrain from exercising any rights, and to take or refrain from taking any
action (including, without limitation, the release or substitution of the
Payment Deposit), solely in accordance with this Agreement and the Collateral
Agency Agreement.
The Collateral Agent shall at all times be the same Person that
is the Collateral Agent under the Collateral Agency Agreement. Written notice
of resignation by the Collateral Agent pursuant to the Collateral Agency
Agreement shall also constitute notice of resignation as the Collateral Agent
under this Agreement; removal of the Collateral Agent pursuant to the Collateral
Agency Agreement shall also constitute removal as the Collateral Agent under
this Agreement; and appointment of a successor Collateral Agent pursuant to the
Collateral Agency Agreement shall also constitute appointment of a successor
Collateral Agent under this Agreement. Upon the acceptance of any appointment
as the Collateral Agent under the Collateral Agency Agreement by a successor
Collateral Agent, that successor Collateral Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
or removed Collateral Agent under this Agreement, and the retiring or removed
Collateral Agent under this Agreement shall promptly (i) transfer to such
successor Collateral Agent all sums, securities and other items of Payment
Deposit held hereunder (which shall be deposited in a new Payment Deposit
Account established and maintained by such successor Collateral Agent), together
with all records and other documents necessary or appropriate in connection with
the performance of the duties of the successor Collateral Agent under this
Agreement and (ii) execute and deliver to such successor Collateral Agent such
amendments to financing statements, and take such other actions, as may be
necessary or appropriate in connection with the assignment to such successor
Collateral Agent of the security interests created hereunder, whereupon such
retiring or removed Collateral Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring or removed Collateral
Agent's resignation or removal hereunder as the Collateral Agent, the provisions
of this Agreement shall inure to its benefit as to any actions taken or omitted
to be taken by it under this Agreement while it was the Collateral Agent
hereunder.
AMENDMENTS; ETC. No amendment or waiver of any provision of this
Agreement, or consent to any departure by the Company herefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Collateral Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it was given.
NOTICES. Any notice or other communication herein required or
permitted to be given shall be in writing and may be personally served,
telecopied or sent by United States mail or courier service and shall be deemed
to have been given when delivered in person or by courier service, upon receipt
of telecopy or four Business Days after depositing it in the United States mail,
registered or certified, with postage prepaid and properly addressed. For the
purposes hereof, the address of each party hereto shall be as designated by such
party in a written notice delivered to the other party hereto.
FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure
or delay on the part of the Collateral Agent in the exercise of any power, right
or privilege hereunder shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or privilege preclude any
other or further exercise thereof or of any other power, right or privilege.
All rights and remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
SEVERABILITY. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
HEADINGS. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE
EXTENT THAT THE CODE PROVIDES THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PAYMENT
DEPOSIT ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK. Unless otherwise defined herein or in the Note Purchase Agreements, terms
used in Article 9 of the Code in the State of New York are used herein as
therein defined.
CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST VALHI AND/OR THE COMPANY ARISING OUT OF OR RELATING
TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT EACH OF VALHI AND THE COMPANY ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT.
WAIVER OF JURY TRIAL. EACH OF VALHI, THE COMPANY AND THE COLLATERAL
AGENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of
this waiver is intended to be all-encompassing of any and all disputes that may
be filed in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. Each of the parties
hereto acknowledges that this waiver is a material inducement for each party to
enter into a business relationship, that each party has already relied on this
waiver in entering into this Agreement and that each party will continue to rely
on this waiver in their related future dealings. Each party further warrants
and represents that each has reviewed this waiver with its legal counsel, and
that each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT. In the event of litigation, this Agreement may be filed as a written
consent to a trial by the court.
COUNTERPARTS. This Agreement may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SNAKE RIVER SUGAR COMPANY
By: ________________________________
Name: _____________________________
Title: ______________________________
VALHI, INC.
By: ________________________________
Name: _____________________________
Title: ______________________________
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Collateral Agent
By: ________________________________
Name: _____________________________
Title: ______________________________