-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JADLmpfWFKsCim1HlvWDJu5XDHb7eN75IVDSryGxH6H/osJHW3dYq5g7o7FT13oS /pyoedCKjeX2tawKyz/Rqw== 0000899243-01-000041.txt : 20010123 0000899243-01-000041.hdr.sgml : 20010123 ACCESSION NUMBER: 0000899243-01-000041 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20010108 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20010109 FILER: COMPANY DATA: COMPANY CONFORMED NAME: IMPERIAL SUGAR CO /NEW/ CENTRAL INDEX KEY: 0000831327 STANDARD INDUSTRIAL CLASSIFICATION: SUGAR & CONFECTIONERY PRODUCTS [2060] IRS NUMBER: 740704500 STATE OF INCORPORATION: TX FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-10307 FILM NUMBER: 1504378 BUSINESS ADDRESS: STREET 1: ONE IMPERIAL SQ STE 200 STREET 2: P O BOX 9 CITY: SUGAR LAND STATE: TX ZIP: 77487 BUSINESS PHONE: 2814919181 FORMER COMPANY: FORMER CONFORMED NAME: IMPERIAL HOLLY CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: IMPERIAL SUGAR CO /TX/ DATE OF NAME CHANGE: 19880606 8-K 1 0001.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): January 8, 2001 IMPERIAL SUGAR COMPANY (Exact name of registrant as specified in its charter) TEXAS 1-10307 74-0704500 (State or other jurisdiction (Commission File Number) (IRS Employer of incorporation) Identification No.) ONE IMPERIAL SQUARE P. O. BOX 9 SUGAR LAND, TEXAS 77487 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (281) 491-9181 ITEM 5. OTHER EVENTS On January 8, 2001, Imperial Sugar Company (the "Company") and the lenders under the Company's Amended and Restated Credit Agreement dated December 22, 1997, entered into the First Amendment to Interim Waiver Agreement extending the effective date of the waiver to January 14, 2001; such amendment is included herewith as Exhibit 4.1 and is incorporated by reference. Additionally, the Company and the purchaser of receivables under the Company's $110 million revolving receivable purchase facility entered into an extension currently effective through January 14, 2001, of a previous waiver (that was effective through January 8, 2001) of the occurrence of a termination event under the facility. The original waiver and the extension are included as Exhibits 4.2 and 4.3 and are incorporated by reference. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS (c) Exhibits 4.1 First Amendment to Interim Waiver Agreement between the Company and the lenders pursuant to the Amended and Restated Credit Agreement dated as of December 22, 1997. 4.2 Waiver of the occurrence of a termination event dated December 12, 2000 pursuant to the Company's Receivables Purchase Agreement dated June 30, 1999. 4.3 Extension of Waiver of the occurrence of a termination event dated January 8, 2001 pursuant to the Company's Receivable Purchase Agreement dated June 30, 1999. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. IMPERIAL SUGAR COMPANY Date: January 8, 2001 By: /s/ Mark Q. Huggins ---------------------------------- Name: Mark Q. Huggins Its: Managing Director and Chief Financial Officer EX-4.1 2 0002.txt 1ST AMD. WAIVER AGREEMENT EXHIBIT 4.1 IMPERIAL SUGAR COMPANY FIRST AMENDMENT TO INTERIM WAIVER AGREEMENT To the Lender Parties to the Interim Waiver Agreement referred to below Ladies and Gentlemen: We refer to the Interim Waiver Agreement between us dated as of September 30, 2000 (the "Interim Waiver Agreement"), capitalized terms used without definition below to have the meanings ascribed to them in the Interim Waiver Agreement. Upon receipt by the Administrative Agent of counterparts hereof which, taken together, bear the signatures of the Borrower, the Subsidiary Guarantors, the Requisite Restructuring Lenders and the Majority Revolving Credit Facility Lenders, the Interim Waiver Agreement shall be amended by (i) striking the date "January 8, 2001" wherever such date appears therein other than in Section 5 thereof and substituting the date "January 14, 2001" therefor and (ii) Section 5 of the Interim Waiver Agreement shall not be applicable after January 8, 2001. Except as specifically amended hereby all of the terms, conditions and provisions of the Interim Waiver Agreement shall stand and remain unchanged and in full force and effect. No reference to this First Amendment to Interim Waiver Agreement need be made in any instrument or document at any time referring to the Interim Waiver Agreement, a reference to the Interim Waiver Agreement in any of such to be deemed to be a reference to the same as amended hereby. This First Amendment to Interim Waiver Agreement may be executed in counterparts and by separate parties hereto on separate counterparts, each to constitute an original but all of which shall constitute one and the same instrument. The amendments provided for herein shall be strictly construed and limited as herein provided. This First Amendment to Interim Waiver Agreement shall be construed in accordance with and governed by the laws of the state of New York. Dated and to Become Effective as of this 8th day of January 2001. Imperial Sugar Company (formerly known as Imperial Holly Corporation) /s/ MARK Q. HUGGINS By ________________________________________ Its CFO ____________________________________ Biomass Corporation /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: President Crown Express, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: President Diamond Crystal Brands, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Diamond Crystal Brands, LP By: Savannah Molasses & Specialties Company Its sole General Partner /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Diamond Crystal Holdings, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Diamond Crystal Specialty Foods, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Dixie Crystals Foodservice, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President DSLT Holding Company /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Food Carrier, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Fort Bend Utilities Company /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Great Lakes Sugar Company /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Holly Northwest Company /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: President Holly Sugar Corporation /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Imperial Distributing, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: President Imperial-Savannah, LP By: Savannah Molasses & Specialties Company Its sole General Partner /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Imperial Sweeteners Distributors, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President King Packaging Company, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Limestone Products Company /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: President Menu Magic Foods, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Michigan Sugar Company /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Phoenix Packaging Corporation /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Ragus Holdings, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: President Savannah Foods Industrial, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Savannah Foods & Industries, Inc. /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Savannah Investment Company /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: President Savannah Molasses & Specialties Company /s/ W.F. SCHWER By ________________________________________ Name: Title: Savannah Sugar Refining Corporation /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Wholesome Sweeteners Group, Ltd. By: Wholesome Sweeteners, LLC Its sole General Partner /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Wholesome Sweeteners, LLC /s/ W.F. SCHWER By ________________________________________ Name: W.F. Schwer Title: Sr. Vice President Lehman Commercial Paper Inc., as Syndication Agent and as a Lender /s/ MICHELE SWANSON By ________________________________________ Name: Michele Swanson Title: Authorized Signatory Harris Trust and Savings Bank, as Administrative Agent, Collateral Agent, Issuing Lender and as a Lender By ________________________________________ Name: Title: Wachovia Bank, N.A. /s/ R.H. MICHALIK By ________________________________________ Name: Richard H. Michalik Title: Senior Vice President US Bancorp AG Credit, Inc. /s/ SANDRA A. SAUER By ________________________________________ Name: Sandra A. Sauer Title: Vice President The Bank of New York /s/ R.R. REEDY By ________________________________________ Name: Ronald R. Reedy Title: Vice President Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland" New York Branch /s/ TIMOTHY J. MOORE By ________________________________________ Name: Timothy J. Moore Title: Vice President /s/ IAN REECE By ________________________________________ Name: Ian Reece Title: Senior Credit Officer Frost National Bank /s/ PHIL DUDLEY By ________________________________________ Name: Phil Dudley Title: Senior Vice President Credit Agricole Indosuez /s/ LARRY MATERI By ________________________________________ Name: Larry Materi Title: Vice President /s/ PAUL A. DYTRYCH By ________________________________________ Name: Paul A. Dytrych Title: Senior Relationship Manager Balanced High Yield Fund I Ltd., By: BHF (USA) Capital Corporation acting as attorney-in-fact /s/ JOHN J. D'ANGELO By ________________________________________ Name: John J. D'Angelo Title: Vice President Asset Management /s/ CHRISTINE NORMAN By ________________________________________ Name: Christine Norman Title: Associate Monument Capital Ltd. By: Alliance Capital Management L.P., as Investment Manager By: Alliance Capital Management Corporation, as General Partner /s/ JOEL SEREBRANSKY By ________________________________________ Name: Joel Serebransky Title: Senior Vice President Oak Mountain Limited By: Alliance Capital Management L.P., as Investment Manager By: Alliance Capital Management Corporation, as General Partner /s/ JOEL SEREBRANSKY By ________________________________________ Name: Joel Serebransky Title: Senior Vice President Van Kampen CLO I, Ltd. By: Van Kampen Management Inc., as Collateral Manager /s/ DARVIN D. PIERCE By ________________________________________ Name: Darvin D. Pierce Title: Principal Van Kampen CLO II, Ltd. By: Van Kampen Management Inc., as Collateral Manager /s/ DARVIN D. PIERCE By ________________________________________ Name: Darvin D. Pierce Title: Principal Van Kampen Senior Income Trust By: Van Kampen Investment Advisory Corp. /s/ DARVIN D. PIERCE By ________________________________________ Name: Darvin D. Pierce Title: Principal Black Diamond CLO 1998 - 1 Ltd. /s/ JOHN N. CULLINAME By ________________________________________ Name: John N. Culliname Title: Director Black Diamond International Funding Ltd. /s/ JOHN N. CULLINAME By ________________________________________ Name: John N. Culliname Title: Director KZH Sterling LLC /s/ KIMBERLY ROWE By ________________________________________ Name: Kimberly Rowe Title: Authorized Agent First Union National Bank /s/ RON R. FERGUSON By ________________________________________ Name: Ron R. Ferguson Title: Senior Vice President The Pilgrim Prime Rate Trust By: ING Pilgrim Investments Inc. as its Investment Manager /s/ MICHEL PRINCE, CFA By ________________________________________ Name: Michel Prince, CFA Title: Vice President Pilgrim America High Income Investments, Ltd. (as Assignee) By: ING Pilgrim Investments Inc. as its Investment Manager /s/ MICHEL PRINCE, CFA By ________________________________________ Name: Michel Prince, CFA Title: Vice President EX-4.2 3 0003.txt TERMINATION EVENT WAIVER EXHIBIT 4.2 BMO NESBITT BURNS CORP. 111 West Monroe Street Chicago, Illinois 60603 BANK OF MONTREAL 115 S. LaSalle Street Chicago, Illinois 60603 December 12, 2000 TO: Imperial Securitization Corporation PO Box 9 8016 Highway 90A Sugar Land, TX 77478 Imperial Distributing, Inc. PO Box 9 8016 Highway 90A Sugar Land, TX 77478 Imperial Sugar Company PO Box 9 8016 Highway 90A Sugar Land, TX 77478 Re: Imperial Securitization Corporation Ladies and Gentlemen: We refer to the Receivables Purchase Agreement dated as of June 30, 1999, as amended by Amendment No. 1 dated as of December 13, 1999, as amended by Amendment No. 2 dated as of March 27, 2000 (as amended through the date hereof and as amended, restated and otherwise modified from time to time the "Receivables Purchase Agreement"), among Imperial Securitization Corporation, as seller (the "Seller") Imperial Distributing, Inc., as servicer ("IDI"), Imperial Sugar Company, as guarantor ("Imperial"), Fairway Finance Corporation, as purchaser (the "Purchaser") and BMO Nesbitt Burns Corp. (formerly known as Nesbitt Burns Securities Inc.), as agent for the Purchaser, (the "Agent"). Capitalized terms used but not otherwise defined herein have the meanings ascribed thereto in Exhibit I to the Receivables Purchase Agreement. As of, but only as of September 30, 2000, Imperial has failed to perform and comply with the financial covenants set forth in Section 7.1(a), 7.1(b), 7.1(e) or 7.1(f) of the Credit Agreement (collectively, the "Breach"), which effects a Termination Event pursuant to Section 2.2 and Paragraph (m) of Exhibit V of the Receivables Purchase Agreement. You have requested that the Agent, on behalf of the Bank of Montreal, agree, pursuant to Section 5.1 of the Receivables Purchase Agreement, to waive the occurrence of any Termination Event under Section 2.2 and Paragraph (m) of Exhibit V of the Receivables Purchase Agreement solely as a result of the Breach. The Agent, on behalf of the Bank of Montreal, is prepared to do so, but only upon the terms and conditions set forth herein. We hereby waive any such Termination Event occurring solely as a result of the Breach but only for the period to and including the earlier of (i) the Sub Debt Payment Notice Date (as such term is defined in the Imperial Sugar Company Interim Waiver Agreement dated as of the date hereof) and (ii) January 8, 2001 (the earlier of such dates being hereinafter referred to as the "Expiry Date") and effective on the Expiry Date such waiver shall be and become null and void and, absent a further waiver of such Breach, such Breach shall once again arise as though the waiver provided for in this letter had never been given. Notwithstanding anything to the contrary herein or in the Transaction Documents, by signing this letter, we are not now waiving, nor have we agreed to waive in the future, the breach of (or any rights, powers and/or remedies, whether arising as a matter of contract and/or applicable law, related to the breach of) any provisions of the Receivables Purchase Agreement or any other Transaction Documents other than the Breach strictly described herein. Except as specifically modified hereby, all of the terms, conditions and provisions of the Receivables Purchase shall stand and remain unchanged and in full force and effect, and the Agent, on behalf of the Bank of Montreal, waives none of, but instead, expressly reserves all of, its claims, rights, powers or remedies, whether as a matter of contract and/or under applicable law with respect to any Transaction Document. Consistent with, but not in limitation of, the foregoing, nothing contained herein shall be deemed in any manner whatsoever to extend or otherwise affect or alter the Facility Termination Date, which is presently January 8, 2001, and the Agent, on behalf of the Bank of Montreal, waives none of, but instead expressly reserves all of, its claims, rights, powers and remedies under the Transaction Documents (including, without limitation, to declare, upon the occurrence and continuation of a Termination Event, the Facility Termination Date and to exercise its right to cease reinvesting and cause the payment in full of the Investment, Discount, Program Fees, all other amounts outstanding under the Receivables Purchase Agreement and all other rights and remedies provided after default under the UCC and under other applicable law, etc.) No reference to this letter need be made in any instrument or document at any time referring to the Receivables Purchase Agreement. This letter may be executed in counterparts and by separate parties hereto on separate counterparts, each to constitute an original but all of which shall constitute one and the same instrument. The Seller, IDI and Imperial hereby confirm that all representations and warranties made by them in the Transaction Documents are true and correct as of the date hereof except to the extent that any of the same expressly relate to any earlier date and acknowledge that their obligations under the Transaction Documents are justly and truly owing without defense, offset or counterclaim. The 2 waiver provided for herein shall be strictly construed and limited as provided herein. This letter shall become effective upon receipt by the Agent of counterparts hereof which, taken together, bear the signatures of the Seller, IDI, Imperial, the Bank of Montreal and the Agent, provided, however, that upon the satisfaction of such conditions such effectiveness shall relate back to and be deemed effective as of September 30, 2000 all with the same force and effect as though such conditions precedent to effectiveness had been satisfied as of and on such date. This letter shall be construed in accordance with and governed by the laws of the state of New York. Dated and to become effective as of the 30th day of September 2000. 3 Very truly yours, BMO NESBITT BURNS CORP. By: /s/ David J. Kucera ---------------------------------- Printed Name: David J. Kucera Title: By: /s/ Jeffrey J. Phillips ---------------------------------- Printed Name: Jeffrey J. Phillips Title: BANK OF MONTREAL By: /s/ Geoffrey R. McConnell ---------------------------------- Printed Name: Geoffrey R. McConnell Title: Director S-1 Acknowledged and Agreed: IMPERIAL SECURITIZATION CORPORATION By: /s/ Karen L. Mercer ----------------------------- Printed Name: Karen L. Mercer Title: Treasurer IMPERIAL DISTRIBUTING, INC. By: /s/ Karen L. Mercer ----------------------------- Printed Name: Karen L. Mercer Title: Treasurer IMPERIAL SUGAR COMPANY By: /s/ Karen L. Mercer ----------------------------- Printed Name: Karen L. Mercer Title: VP & Treasurer S-2 EX-4.3 4 0004.txt EXTENSION OF TERMINATION EVENT WAIVER EXHIBIT 4.3 BMO NESBITT BURNS CORP. 111 West Monroe Street Chicago, Illinois 60603 BANK OF MONTREAL 115 S. LaSalle Street Chicago, Illinois 60603 First Amendment to Waiver Letter January 8, 2001 TO: Imperial Securitization Corporation PO Box 9 8016 Highway 90A Sugar Land, TX 77478 Imperial Distributing, Inc. PO Box 9 8016 Highway 90A Sugar Land, TX 77478 Imperial Sugar Company PO Box 9 8016 Highway 90A Sugar Land, TX 77478 Re: Imperial Securitization Corporation Ladies and Gentlemen: We refer to the Waiver Letter between us dated as of December 13, 2000, with an effective date of September 30, 2000 (the "Waiver Letter"), capitalized terms used without definition below to have the meanings ascribed to them in the Waiver Letter. Upon receipt by the Agent of counterparts hereof which, taken together, bear the signatures of the Imperial Securitization Corporation, Imperial Distributing, Inc., Imperial Sugar Company, the Agent and the Bank of Montreal, the Waiver Letter shall be amended by: (i) striking the date "January 8, 2001" in the fourth paragraph thereof and substituting the following "the earlier of January 16, 2001 and the expiration of the waiver of the Default or Event of Default under the Credit Agreement, as provided in the Interim Waiver Agreement dated as of September 30, 2000 and as amended by the First Amendment to the Interim Waiver Agreement dated as of January 8, 2001" therefore and (ii) striking the date "January 8, 2001" in the fifth paragraph thereof and substituting the date "January 16, 2001" therefore. Except as specifically amended hereby all of the terms, conditions and provisions of the Waiver Letter shall stand and remain unchanged and in full force and effect. No reference to this First Amendment to Waiver Letter need be made in any instrument or document at any time referring to the Waiver Letter, a reference to the Waiver Letter in any of such to be deemed to be a reference to the same as amended hereby. This First Amendment to Waiver Letter may be executed in counterparts and by separate parties hereto on separate counterparts, each to constitute an original but all of which shall constitute one and the same instrument. The amendments provided for herein shall be strictly construed and limited as herein provided. This First Amendment to the Waiver Letter shall be construed in accordance with and governed by the laws of the state of New York. Dated and to be come effective as of the 8th day of January 2001. Very truly yours, BMO NESBITT BURNS CORP. By: /s/ DAVID J. KUCERA ------------------------------- Printed Name: David J. Kucera Title: Managing Director By: /s/ JAMES P. WALSH ------------------------------- Printed Name: James P. Walsh Title: Managing Director BANK OF MONTREAL By: /s/ GEOFFREY R. McCONNELL -------------------------------- Printed Name: Geoffrey R. McConnell Title: Director S-1 Acknowledged and Agreed: IMPERIAL SECURITIZATION CORPORATION By: /s/ KAREN L. MERCER --------------------------------- Printed Name: Karen L. Mercer Title: Treasurer IMPERIAL DISTRIBUTING, INC. By: /s/ KAREN L. MERCER --------------------------------- Printed Name: Karen L. Mercer Title: Treasurer IMPERIAL SUGAR COMPANY By: /s/ KAREN L. MERCER ---------------------------------- Printed Name: Karen L. Mercer Title: VP and Treasurer S-2 -----END PRIVACY-ENHANCED MESSAGE-----