-----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, KeGNVHIfG6uiI/ij0CCvtiVdeUdQcJlRS4F5LdvqxUXW235aQ4TQzjMqMIk9uhHP db3R3ijbu2uD49QC80f89w== 0000899243-02-001043.txt : 20020416 0000899243-02-001043.hdr.sgml : 20020416 ACCESSION NUMBER: 0000899243-02-001043 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20020405 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020410 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: 1934 Act SEC FILE NUMBER: 001-10307 FILM NUMBER: 02607303 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 d8k.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): April 5, 2002 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 April 5, 2002, Imperial Sugar Company and the lenders under its principal credit agreement entered into the First Amendment to Restructuring Credit Agreement which, among other things, modified financial covenants as of March 31, 2002 and changed the borrowing base revolving credit limit calculation for the three months ending June 30, 2002. Additionally, Imperial Sugar Company and General Electric Capital Corporation entered into Amendment No. 2 to the Receivables Funding Agreement. Item 7 - Financial Statements, Pro Forma Financial Information & Exhibits (c) Exhibits 99.1 First Amendment to Restructuring Credit Agreement among Imperial Sugar Company, the several lenders from time to time parties thereto and Harris Trust and Savings Bank as Administrative Agent and Collateral Agent, dated April 5, 2002. 99.2 Amendment No. 1 dated February 6, 2002 to the Receivables Funding Agreement by and among Imperial Sugar Company, Imperial Distributing, Inc., Imperial Sugar Securitization, LLC and General Electric Capital Corporation. 99.3 Amendment No. 2 dated April 5, 2002 to the Receivables Funding Agreement by and among Imperial Sugar Company, Imperial Distributing, Inc., Imperial Sugar Securitization, LLC and General Electric Capital Corporation. 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: April 10, 2002 By: /s/ J. Chris Brewster --------------------- J. Chris Brewster Managing Director and Chief Financial Officer (Principal Financial Officer) EX-99.1 3 dex991.txt RESTRUCTURING AGREEMENT EXHIBIT 1 IMPERIAL SUGAR COMPANY FIRST AMENDMENT TO RESTRUCTURING CREDIT AGREEMENT First Amendment, dated as of April 5, 2002 (this "Amendment"), to the Restructuring Credit Agreement dated as of August 28, 2001 (as heretofore and hereafter amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Imperial Sugar Company, a Texas corporation (the "Borrower"), the several Lenders ("Lenders") from time to time parties thereto, and Harris Trust and Savings Bank, as Administrative Agent and Collateral Agent. WITNESSETH Whereas, the Borrower has requested that the Lenders amend certain provisions of the Credit Agreement; Whereas, the Lenders have agreed to such amendments only upon the terms and subject to the conditions set forth herein; Now, Therefore, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows: Section 1. Defined Terms. Unless otherwise defined herein, capitalized terms which are defined in the Credit Agreement are used herein as therein defined. Section 2. Amendments to the Credit Agreement. 2.1. The definitions of the terms "Adjusted Revolving Credit Commitments," "Applicable Overadvance Allowance or Block" "Consolidated Current Assets," "Mandatory Prepayment Percentage" and "Swing Line Commitment" appearing in Section 1.1 of the Credit Agreement shall be amended to read as follows: ""Adjusted Revolving Credit Commitment": as to any Lender at any time, (a) the amount of such Lender's Revolving Credit Commitment less (b)(i) during the period commencing on April 1, 2002, and ending on June 30, 2002, such Lender's Revolving Credit Percentage of the aggregate principal amount of CCC Loans in excess of $25,000,000, and (ii) at all other times, such Lender's Revolving Credit Percentage of the aggregate principal amount of all CCC Loans. "Applicable Overadvance Allowance or Block": for purposes of the calculation of availability under the revolving credit as of a date in each period set forth below, the amount set forth below for such period:
Period Amount ------ ------ April 1, 2002 through April 30, 2002 $30,000,000 May 1, 2002 through May 31, 2002 $35,000,000 June 1, 2002 through June 30, 2002 $40,000,000
The Applicable Overadvance Allowance or Block will be added to the Borrowing Base in effect during each period specified above. "Consolidated Current Assets": at any date, all amounts which would, in conformity with GAAP, be properly classified as current assets after deducting adequate reserves where proper, on a consolidated balance sheet of the Borrower and its Subsidiaries at such date, and including in any event the book value of the Borrower's and its Subsidiaries' investments in and advances to the SPV. "Mandatory Prepayment Percentage": (a) with respect to Net Cash Proceeds of Asset Sales, 100%, and (b) with respect to Net Cash Proceeds of a Recovery Event, 100%. "Swing Line Commitment": the obligation of the Swing Line Lender to make Swing Line Loans pursuant to Section 2.6 in an aggregate principal amount at any one time outstanding not to exceed the lesser of the Swing Line Lender's Revolving Credit Commitment and $10,000,000." 2.2. The definition of the term "Borrowing Base" contained in Section 1.1 of the Credit Agreement shall be amended by deleting subsection (m) thereof. 2.3. Clause (ii) of the proviso appearing in first sentence of Section 2.4(a) of the Credit Agreement shall be amended to read as follows: "(ii) in no event may the aggregate amount of all Borrowing Base Obligations ever exceed an amount equal to the sum of the Borrowing Base as then computed and the Applicable Overadvance Allowance or Block then in effect." 2.4. Section 2.9 of the Credit Agreement shall be amended by adding the following provision thereto as subsection (e) thereof: "(e) The Borrower agrees to pay to the Administrative Agent for the account of the Lenders an amendment fee relating to the First Amendment to Restructuring Credit Agreement dated as of April 5, 2002 (the "First Amendment"), in an amount equal to $500,000, payable in three equal installments on April 30, 2002, May 31, 2002, and June 30, 2002. Such fee shall be fully earned upon the effectiveness of the First Amendment and shall be non-refundable." 2 2.5. The first sentence of Section 2.12 (d) of the Credit Agreement shall be amended by inserting the phrase "(other than prepayments made pursuant to Section 2.12(e)" immediately after the reference to "Section 2.12" appearing in the second line thereof. 2.6. Section 2.12 of the Credit Agreement shall be amended by adding the following provision thereto as subsection (e) thereof: "(e) If the aggregate principal amount of all Borrowing Base Obligations shall ever exceed an amount equal to the sum of the Borrowing Base as then computed and the Applicable Overadvance Allowance or Block then in effect, the Borrower shall immediately without notice or demand therefor prepay Revolving Credit Obligations and, to the extent necessary, deliver to the Administrative Agent cash collateral for outstanding Letters of Credit, in the amount necessary to eliminate such excess." 2.7. Section 2.15(d) of the Credit Agreement shall be amended to read as follows: "(d) Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (c) of this Section 2.15 shall be payable from time to time on demand and interest accruing pursuant to paragraph (e) of this Section 2.15 shall be payable as provided in said paragraph (e)." 2.8. Section 2.15 of the Credit Agreement shall be amended by adding the following provisions thereto as subsections (e) and (f): "(e) In addition to interest payable pursuant to any other provision of this Agreement, the Borrower hereby further agrees to pay interest on the unpaid principal amount of the Loans and on the amount of drawings under Letters of Credit which have not then been reimbursed from time to time outstanding during the period from and including April 1, 2002, through June 30, 2002, at the rate per annum (calculated on the basis of a year of 360 days and actual days elapsed) of 1.5%. On June 30, 2002, all such interests accrued with respect to Revolving Credit Loans and the amount of drawings under Letters of Credit which have not then been reimbursed shall be added to the principal balance of the Revolving Credit Loans and shall be evidenced by the promissory notes of the Borrower evidencing Revolving Credit Loans, all such interest accrued with respect to outstanding Swing Line Loans shall be added to the principal balance of the Swing Line Loans and shall be evidenced by the promissory note of the Borrower evidencing the Swing Line Loans and all such interest accrued with respect to the Term Loans shall be added to the principal balance of the Term Loans. From and after June 30, 2002, all such amounts shall be evidenced by the promissory notes of the Borrower evidencing such Term Loans, and all such amounts shall be entitled to the benefits of the Collateral, shall bear interest at the rates applicable to the relevant Loans until paid in full and shall be payable on (x) the Revolving Credit Termination Date (or such earlier date on which the Loans become due and payable pursuant to Section 8 or on which all Obligations have been fully paid, no Letters of Credit are outstanding and all Commitments have been terminated or expired) in the case of such amounts relating to Revolving Credit Loans, Swing Line Loans and the aggregate amount of drawings under 3 Letters of Credit which have not then been reimbursed, and (y) on the final scheduled principal payment date set forth in Section 2.3 (or on such earlier date on which the Loans become due and payable pursuant to Section 8 or on which all Obligations have been fully paid, no Letters of Credit are outstanding and all Commitments have been terminated or expired) in the case of such amounts relating to the Term Loans. (f) All agreements between the Borrower, any Agent and each of the Lenders, whether now existing or hereafter arising and whether written or oral, are expressly limited so that in no contingency or event whatsoever, whether by reason of demand or acceleration of the maturity of any of the indebtedness hereunder or otherwise, shall the amount contracted for, charged, received, reserved, paid or agreed to be paid to any Agent or each Lender for the use, forbearance, or detention of the funds advanced hereunder or otherwise, or for the performance or payment of any covenant or obligation contained in any document executed in connection herewith (all such documents being hereinafter collectively referred to as the "Credit Documents"), exceed the highest lawful rate permissible under applicable law (the "Highest Lawful Rate"), it being the intent of the Borrower, each Agent and each of the Lenders in the execution hereof and of the Credit Documents to contract in strict accordance with applicable usury laws. If, as a result of any circumstances whatsoever, fulfillment by the Borrower of any provision hereof or of any of such documents, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by applicable usury law or result in any Agent or any Lender having or being deemed to have contracted for, charged, reserved or received interest (or amounts deemed to be interest) in excess of the maximum, lawful rate or amount of interest allowed by applicable law to be so contracted for, charged, reserved or received by such Agent or such Lender, then, ipso facto, the obligation to be fulfilled by the Borrower shall be reduced to the limit of such validity, and if, from any such circumstance, such Agent or such Lender shall ever receive interest or anything which might be deemed interest under applicable law which would exceed the Highest Lawful Rate, such amount which would be excessive interest shall be refunded to the Borrower or, to the extent (i) permitted by applicable law and (ii) such excessive interest does not exceed the unpaid principal balance of the Notes and the amounts owing on other obligations of the Borrower to any Agent or any Lender under any Loan Document applied to the reduction of the principal amount owing on account of the Notes or the amounts owing on other obligations of the Borrower to any Agent or any Lender under any Loan Document and not to the payment of interest. All interest paid or agreed to be paid to the Agent or any Lenders shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full period of the indebtedness hereunder until payment in full of the principal of the indebtedness hereunder (including the period of any renewal or extension thereof) so that the interest on account of the indebtedness hereunder for such full period shall not exceed the highest amount permitted by applicable law. This Section 2.15(f) shall control all agreements between the Borrower, the Agents and the Lenders. 4 2.9. Section 2.18(b) of the Credit Agreement shall be amended to read as follows: "(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. The amount of each optional principal prepayment of the Term Loans made pursuant to Section 2.11 hereof and each mandatory principal prepayment made pursuant to Section 2.12 (b) hereof in connection with an Asset Sale in which the Property sold or otherwise disposed of consists of a Subsidiary or a line of business that had Consolidated EBITDA during the fiscal year preceding the fiscal year in which the Asset Sale occurs of more than $2,000,000 shall be applied to reduce the then remaining installments of the Tranche A Term Loans and Tranche B Term Loans, as the case may be, pro rata based upon the then remaining principal amount thereof. The amount of each mandatory principal prepayment, other than any mandatory principal prepayment made pursuant to Section 2.12 (b) hereof in connection with an Asset Sale in which the Property sold or otherwise disposed of consists of a Subsidiary or a line of business that had Consolidated EBITDA during the fiscal year preceding the fiscal year in which the Asset Sale occurs of more than $2,000,000, shall be applied to reduce the then remaining installments of the Tranche A Term Loans and Tranche B Term Loans, as the case may be, in the inverse order of their respective maturities. Amounts prepaid on account of the Term Loans may not be reborrowed." 2.10. Section 5.2(c) of the Credit Agreement shall be amended to read as follows: "(c) Borrowing Base. After giving effect to the requested extension of credit, the aggregate principal amount of all Borrowing Base Obligations shall not exceed an amount equal to the sum of the Borrowing Base as then computed and the Applicable Overadvance Allowance or Block then in effect." 2.11. Section 6.2 of the Credit Agreement shall be amended by replacing the period appearing at the end of subsection (l) thereof with a semi-colon and by adding the following provisions as subsections (m) and (n) thereof: "(m) no later than April 22, 2002, a report in reasonable detail setting forth the Borrower's plan for improving the profitability of the Borrower's and its Subsidiaries' business, which report shall include a schedule for the implementation thereof; and (n) no later than May 31, 2002, a presentation by an investment bank selected by the Borrower regarding the alternatives available to the Borrower for repayment of its debt obligations." 2.12. The row relating to the Borrower's fiscal quarter ending March 31, 2002, in table appearing in Section 7.1(a) of the Credit Agreement shall be amended to read as follows: "March 31, 2002 Not tested" 5 2.13. The row relating to the Borrower's fiscal quarter ending March 31, 2002, in table appearing in Section 7.1(c) of the Credit Agreement shall be amended to read as follows: "March 31, 2002 Not tested" 2.14. The row relating to the Borrower's fiscal quarter ending March 31, 2002, in table appearing in Section 7.1(d) of the Credit Agreement shall be amended to read as follows: March 31, 2002 $15,753,000 2.15. The row relating to the Borrower's fiscal quarter ending March 31, 2002, in table appearing in Section 7.1(e) of the Credit Agreement shall be amended to read as follows: "March 31, 2002 Not tested" 2.16. Section 7.5 of the Credit Agreement shall be amended by replacing the period appearing at the end of subsection (h) thereof with "; and" and by adding the following provision thereto as subsection (i): "(i) Dispositions of real estate described in Column A of Schedule 7.5 that are approved by (i) the Administrative Agent in the case of Dispositions in which the total cash consideration is not less than the amount set forth in Column B of Schedule 7.5 for each such Disposition, and (ii) the Required Lenders in all other cases." 2.17. Section 7.7 of the Credit Agreement shall be amended to read as follows: "Section 7.7. Limitation on Capital Expenditures. Make or commit to make (by way of the acquisition of securities of a Person or otherwise) any Capital Expenditure, except Capital Expenditures of the Borrower and its Subsidiaries in the ordinary course of business not to exceed $20,000,000 during the Borrower's fiscal year ending September 30, 2002, provided that such Capital Expenditures are made or incurred solely to maintain the Loan Parties' current business operations and not to acquire new business enterprises or lines of business." 2.18. The Credit Agreement shall be amended by adding thereto as Schedule 7.5 the form of Schedule 7.5 attached to this Amendment. Section 3. Conditions Precedent to Effectiveness. This Amendment shall become effective as of March 31, 2002 (the "Effective Date") upon satisfaction of all of the following conditions precedent: 3.1. The execution and delivery of this Amendment by a duly authorized officer of each of the Borrower, the Agents and the Supermajority Lenders. 6 3.2. Payment of the unpaid balance of the restructuring fee payable to the Administrative Agent for the account of the Lenders pursuant to Section 2.9(d) of the Credit Agreement. 3.3. No Default or Event of Default has occurred and is continuing after giving effect to this Amendment. 3.4. The representations and warranties made by the Borrower in or pursuant to the Credit Agreement or any Loan Documents are true and correct in all material respects on and as of the Effective Date as if made on such date (except to the extent that any such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date). Section 4. Representation and Warranties. The Borrower represents and warrants to each Agent and each Lender that as of the Effective Date, after giving effect to this Amendment: 4.1. no Default or Event of Default has occurred and is continuing; 4.2. the representations and warranties made by the Borrower in or pursuant to the Credit Agreement or any Loan Documents are true and correct in all material respects on and as of the Effective Date as if made on such date (except to the extent that any such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date); and 4.3. this Amendment constitutes the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). Section 5. Continuing Effect of Credit Agreement. This Amendment shall not constitute an amendment or waiver of or consent to any provision of the Credit Agreement not expressly referred to herein and shall not be construed as an amendment, waiver or consent to any action on the part of the Borrower that would require an amendment, waiver or consent of the Agents or the Lenders except as expressly stated herein. Except as expressly amended hereby, the provisions of the Credit Agreement are and shall remain in full force and effect. Reference to this specific Amendment need not be made in any note, document, letter, certificate, the Credit Agreement itself, or any communication issued or made pursuant to or with respect to the Credit Agreement, any reference to the Credit Agreement being sufficient to refer to the Credit Agreement as amended hereby. Section 6. Expenses. The Borrower agrees to pay and reimburse the Agents for all of their reasonable costs and out-of-pocket expenses incurred in connection with the preparation, execution and delivery of this Amendment and ancillary documents, including, without limitation, the reasonable fees and disbursements of counsel to the Agents. 7 Section 7. Counterparts. This Amendment may be executed in any number of counterparts by the parties hereto, each of which counterparts when so executed shall be an original, but all counterparts taken together shall constitute one and the same instrument. Section 8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 8 In Witness Whereof, the parties hereto have caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first above written. Imperial Sugar Company By: /s/ Karen L. Mercer Name: Karen L. Mercer Title: VP and Treasurer Harris Trust and Savings Bank, as Administrative Agent, Collateral Agent, Issuing Lender and as a Lender By: /s/ Sandra J. Sanders Name: Sandra J. Sanders Title: Vice President 9 Lehman Commercial Paper Inc. By: /s/ Michele Swanson Name: Michele Swanson Title: Authorized Signatory 10 Union Bank of California, N.A. By: Name: Title: 11 US Bank National Association By: /s/ Harold Nelson Name: Harold Nelson Title: Vice President 12 The Bank of New York By: /s/ Michael B. Scaduto Name: Michael B. Scaduto Title: Vice President 13 Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland" New York Branch By: Name: Title: By: Name: Title: 14 Farm Credit Bank of Wichita By: /s/ Travis W. Ball Name: Travis W. Ball Title: Vice President 15 Frost National Bank By: /s/ Phil Dudley Name: Phil Dudley Title: Senior Vice President 16 Credit Agricole Indosuez By: Name: Title: By: Name: Title: 17 Wells Fargo Bank (Texas), N.A. By: /s/ Danny Oliver Name: Danny Oliver Title: Vice President 18 Balanced High Yield Fund I, Ltd., By: ING Capital Advisors LLC, as Asset Manager By: /s/ Illegible Signature Name: Title: 19 Metropolitan Life Insurance Company By: /s/ Jacqueline D. Jenkins Name: Jacqueline D. Jenkins Title: Managing Director 20 Monument Capital Ltd., as Assignee By: Alliance Capital Management L.P., as Investment Manager By: Alliance Capital Management Corporation, as General Partner By: /s/ Joel Serebransky 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 By: Name: Title: 21 Van Kampen CLO I, Ltd. By: Van Kampen Management Inc., as Collateral Manager By: /s/ William Lenga Name: William Lenga Title: Vice President Van Kampen CLO II, Ltd. By: Van Kampen Management Inc., as Collateral Manager By: /s/ William Lenga Name: William Lenga Title: Vice President Van Kampen Senior Income Trust By: /s/ William Lenga Name: William Lenga Title: Vice President Van Kampen Prime Rate Income Trust By: /s/ William Lenga Name: William Lenga Title: Vice President 22 Black Diamond CLO 1998 - 1 Ltd. By: /s/ Alan Corkish Name: Alan Corkish Title: Director Black Diamond International Funding Ltd. By: /s/ Alan Corkish Name: Alan Corkish Title: Director Black Diamond CLO 2000-1 Ltd. By: /s/ Alan Corkish Name: Alan Corkish Title: Director 23 KZH Sterling LLC By: Name: Title: 24 PAMCO Cayman Ltd. By: Highland Capital Management, L.P. as Collateral Manager By: Name: Title: 25 Highland Legacy Limited By: Highland Capital Management, L.P. as Collateral Manager By: Name: Title: 26 Highland Crusader Offshore Partners, L.P. By: Highland Capital Management, L.P. as General Partner By: Name: Title: 27 Lone Star Partners, L.P. By: /s/ Jerome L. Simon Name: Jerome L. Simon Title: Portfolio Manager 28 ING Prime Rate Trust By: ING Investments, LLC, as its Investment Manager By: /s/ Illegible Signature Name: Title: Senior Vice President Pilgrim America High Income Investments Ltd. By: ING Investments, LLC, as its Investment Manager By: /s/ Illegible Signature Name: Title: Senior Vice President 29 Bear, Stearns & Co. Inc. By: /s/ Gregory A. Hanler Name: Gregory A. Hanler Title: Senior Managing Director 30 EX-99.2 4 dex992.txt RECEIVABLES FUNDING AGREEMENT EXHIBIT 2. EXECUTION COPY AMENDMENT NO. 1 Dated as of February 6, 2002 to RECEIVABLES FUNDING AGREEMENT Dated as of August 28, 2001 THIS AMENDMENT NO. 1 (this "Amendment") is entered into as of February 6, 2002 by and among IMPERIAL SUGAR COMPANY, a Texas corporation ("Imperial"), each of the Originators party hereto (the "Originators"), IMPERIAL DISTRIBUTING, INC., a Delaware corporation (the "Servicer"), IMPERIAL SUGAR SECURITIZATION, LLC, a Delaware limited liability company (the "Borrower"), and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as a lender and as administrative agent for the lenders (in such capacity, the "Administrative Agent"). Capitalized terms used in this Amendment which are not otherwise defined herein shall have the meanings given such terms in Annex X to the Funding Agreement referred to below. RECITALS: WHEREAS, the Originators, Imperial and the Borrower are parties to a Receivables Sale Agreement dated as of August 28, 2001 (as amended, restated, supplemented or otherwise modified from time to time, the "Receivables Sale Agreement"); WHEREAS, the Borrower, Imperial, the Servicer, the financial institutions party thereto as lenders (the "Lenders") and the Administrative Agent are parties to a Receivables Funding Agreement dated as of August 28, 2001 (as amended, restated, supplemented or otherwise modified from time to time, the "Funding Agreement"); WHEREAS, many of the defined terms used in the Receivables Sale Agreement and the Funding Agreement are set forth in Annex X attached thereto ("Annex X"); and WHEREAS, the Originators, the Borrower, the Servicer, Imperial, the Lenders and the Administrative Agent have agreed to amend Annex Z on the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Originators, the Borrower, the Servicer, Imperial, the Lenders and the Administrative Agent hereby agree as follows. 1. Amendment to Annex Z. Effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 2 below, Annex Z to the Funding Agreement is hereby deleted in its entirety and replaced with the Special Concentration Percentages attached hereto as Exhibit 1. 2. Conditions of Effectiveness of this Amendment. This Amendment shall become effective as of the date hereof (the "Effective Date") when, and only when, the Administrative Agent shall have received each of the following: (a) counterparts of this Amendment duly executed by the Originators, the Borrower, the Servicer, Imperial, the Lenders and the Administrative Agent; and (b) such other documents, instruments and agreements as the Administrative Agent may reasonably request. 3. Representations and Warranties. 3.1 Upon the effectiveness of this Amendment, the Originators, the Borrower, the Servicer and Imperial each (a) hereby reaffirms in all material respects all covenants, representations and warranties made by it in the Receivables Sale Agreement, the Funding Agreement and each other Related Document to the extent the same are not amended hereby and except to the extent the same expressly relates solely to an earlier date, (b) agrees that all such covenants, representations and warranties shall be deemed to have been re-made as of the Effective Date of this Amendment and (c) represents and warrants that, as of the Effective Date of this Amendment and after giving effect hereto, no Termination Event, Incipient Termination Event, Event of Servicer Termination or Incipient Servicer Termination Event has occurred and is continuing. 3.2 The Originators, the Borrower, the Servicer and Imperial hereby represents and warrants that this Amendment, the Receivables Sale Agreement and the Funding Agreement, as amended hereby, constitute legal, valid and binding obligations of such Person (to the extent a party thereto) and are enforceable against such Person in accordance with their respective terms. 4. Reference to and Effect on Related Documents. 4.1 Upon the effectiveness of this Amendment pursuant to Section 2 hereof, on and after the Effective Date, each reference to the Receivables Sale Agreement and the Funding Agreement in any of the Related Documents shall mean and be a reference to the Receivables Sale Agreement or the Funding Agreement, as the case may be, as amended hereby. 4.2 Except as specifically set forth above, the Receivables Sale Agreement and the Funding Agreement, and all other documents, instruments and agreements executed and/or delivered in connection therewith, shall remain in full force and effect, and are hereby ratified and confirmed. 4.3 The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the 2 Borrower, the Lenders or the Administrative Agent, nor constitute a waiver of any provision of any of the Related Documents, or any other documents, instruments and agreements executed and/or delivered in connection therewith. 5. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose. 6. Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment. 7. Entire Agreement. This Amendment, taken together with the Receivables Sale Agreement, the Funding Agreement and all of the other Related Documents, embodies the entire agreement and understanding of the parties hereto and supersedes all prior agreements and understandings, written and oral, relating to the subject matter hereof. 8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES). 9. No Course of Dealing. The Lenders and the Administrative Agent have entered into this Amendment on the express understanding with the Borrower, the Originators, Imperial and the Servicer that in entering into this Amendment the Lenders and the Administrative Agent are not establishing any course of dealing with the Borrower, the Originators, Imperial or the Servicer. The rights of the Lenders and the Administrative Agent to require strict performance with all the terms and conditions of the Receivables Sale Agreement and the Funding Agreement as amended by this Amendment and the other Related Documents shall not in any way be impaired by the execution of this Amendment. Neither the Lenders nor the Administrative Agent shall be obligated in any manner to execute any further amendments or waivers, and if such waivers or amendments are requested in the future, assuming the terms and conditions thereof are acceptable to them, the Lenders and the Administrative Agent may require the payment of fees in connection therewith. 3 IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed as of the day and year first above written. IMPERIAL SUGAR SECURITIZATION, LLC, as the Borrower /s/ Karen L. Mercer By _____________________________ Name: Karen L. Mercer Title: Treasurer IMPERIAL DISTRIBUTING, INC., as Servicer /s/ Karen L. Mercer By _____________________________ Name: Karen L. Mercer Title: Treasurer GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender and as Administrative Agent /s/ Craig Winslow By _____________________________ Name: Craig Winslow Title: Duly Authorized Signatory Signature Page to Amendment No. 1 EX-99.3 5 dex993.txt RECEIVABLES FUNDING AGREEMENT EXHIBIT 1. EXECUTION COPY AMENDMENT NO. 2 Dated as of April 5, 2002 to RECEIVABLES FUNDING AGREEMENT Dated as of August 28, 2001 THIS AMENDMENT NO. 2 (this "Amendment") is entered into as of April 5, 2002 by and among IMPERIAL SUGAR COMPANY, a Texas corporation ("Imperial"), each of the Originators party hereto (the "Originators"), IMPERIAL DISTRIBUTING, INC., a Delaware corporation (the "Servicer"), IMPERIAL SUGAR SECURITIZATION, LLC, a Delaware limited liability company (the "Borrower"), and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as a lender and as administrative agent for the lenders (in such capacity, the "Administrative Agent"). Capitalized terms used in this Amendment which are not otherwise defined herein shall have the meanings given such terms in Annex X to the Funding Agreement referred to below. RECITALS: WHEREAS, the Originators, Imperial and the Borrower are parties to a Receivables Sale Agreement dated as of August 28, 2001 (as amended, restated, supplemented or otherwise modified from time to time, the "Receivables Sale Agreement"); WHEREAS, the Borrower, Imperial, the Servicer, the financial institutions party thereto as lenders (the "Lenders") and the Administrative Agent are parties to a Receivables Funding Agreement dated as of August 28, 2001 (as amended, restated, supplemented or otherwise modified from time to time, the "Funding Agreement"); WHEREAS, many of the defined terms used in the Receivables Sale Agreement and the Funding Agreement are set forth in Annex X attached thereto ("Annex X"); and WHEREAS, the Originators, the Borrower, the Servicer, Imperial, the Lenders and the Administrative Agent have agreed to (i) amend the Funding Agreement and (ii) consent to an amendment to the Credit Agreement, in each case, on the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Originators, the Borrower, the Servicer, Imperial, the Lenders and the Administrative Agent hereby agree as follows. 1. Amendment to the Funding Agreement. Effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 3 below, Section 5.02 of the Funding Agreement is hereby amended as follows: (a) To delete clause (ii) of subsection (b) in its entirety and substitute the following therefor: "(ii) the Administrative Agent shall deem it necessary (in its sole discretion), then such reports shall be delivered daily." (b) To add the following subsections (d) and (e) thereto: "(d) No later than April 22, 2002, a report in reasonable detail setting forth the Parent's plan for improving the profitability of the Parent's and its Subsidiaries' business, which report shall include a schedule for the implementation thereof. (e) No later than May 31, 2002, a presentation by an investment bank selected by the Parent regarding the alternatives available to the Parent for repayment of its debt obligations." 2. Consent to Amendment of Credit Agreement. Effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 3 below, for purposes Section 9.01(t) of the Funding Agreement and Section 4.03(a) of the Receivables Sale Agreement, the Administrative Agent and the Lenders hereby consent to the First Amendment to Restructuring Credit Agreement in the form attached hereto as Exhibit A. In addition to the foregoing, the Administrative Agent hereby consents to the sale of the assets listed in Column A on Schedule 7.5 to the First Amendment to Restructuring Credit Agreement so long as the total cash consideration is not less than the amount set forth in Column B of Schedule 7.5. 3. Conditions of Effectiveness of this Amendment. This Amendment shall become effective as of the date hereof (the "Effective Date") when, and only when, (i) the Administrative Agent shall have received each of the following: (a) counterparts of this Amendment duly executed by each of the parties hereto; (b) a fully executed copy of the First Amendment to Restructuring Credit Agreement; (c) such other documents, instruments and agreements as the Administrative Agent may reasonably request; and (d) an amendment fee in the amount of $200,000 for its account and the account of the Lenders; and (ii) the First Amendment to Restructuring Credit Agreement shall be effective. 2 4. Representations and Warranties. (a) Upon the effectiveness of this Amendment, the Originators, the Borrower, the Servicer and Imperial each (i) hereby reaffirms in all material respects all covenants, representations and warranties made by it in the Receivables Sale Agreement, the Funding Agreement and each other Related Document to the extent the same are not amended hereby and except to the extent the same expressly relates solely to an earlier date, (ii) agrees that all such covenants, representations and warranties shall be deemed to have been re-made as of the Effective Date of this Amendment and (iii) represents and warrants that, as of the Effective Date of this Amendment and after giving effect hereto, no Termination Event, Incipient Termination Event, Event of Servicer Termination or Incipient Servicer Termination Event has occurred and is continuing. (b) The Originators, the Borrower, the Servicer and Imperial hereby represents and warrants that this Amendment, the Receivables Sale Agreement and the Funding Agreement, as amended hereby, constitute legal, valid and binding obligations of such Person (to the extent a party thereto) and are enforceable against such Person in accordance with their respective terms. 5. Reference to and Effect on Related Documents. (a) Upon the effectiveness of this Amendment pursuant to Section 4 hereof, on and after the Effective Date, each reference to the Receivables Sale Agreement and the Funding Agreement in any of the Related Documents shall mean and be a reference to the Receivables Sale Agreement or the Funding Agreement, as the case may be, as amended hereby. (b) Except as specifically set forth above, the Receivables Sale Agreement and the Funding Agreement, and all other documents, instruments and agreements executed and/or delivered in connection therewith, shall remain in full force and effect, and are hereby ratified and confirmed. (c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Borrower, the Lenders or the Administrative Agent, nor constitute a waiver of any provision of any of the Related Documents, or any other documents, instruments and agreements executed and/or delivered in connection therewith. 6. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose. 7. Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment. 3 8. Entire Agreement. This Amendment, taken together with the Receivables Sale Agreement, the Funding Agreement and all of the other Related Documents, embodies the entire agreement and understanding of the parties hereto and supersedes all prior agreements and understandings, written and oral, relating to the subject matter hereof. 9. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES). 10. No Course of Dealing. The Lenders and the Administrative Agent have entered into this Amendment on the express understanding with the Borrower, the Originators, Imperial and the Servicer that in entering into this Amendment the Lenders and the Administrative Agent are not establishing any course of dealing with the Borrower, the Originators, Imperial or the Servicer. The rights of the Lenders and the Administrative Agent to require strict performance with all the terms and conditions of the Receivables Sale Agreement and the Funding Agreement as amended by this Amendment and the other Related Documents shall not in any way be impaired by the execution of this Amendment. Neither the Lenders nor the Administrative Agent shall be obligated in any manner to execute any further amendments or waivers, and if such waivers or amendments are requested in the future, assuming the terms and conditions thereof are acceptable to them, the Lenders and the Administrative Agent may require the payment of fees in connection therewith. 11. Waiver of Claims. In consideration for the execution by the Lender and the Administrative Agent of this Amendment, each of the Borrower, the Servicer, the Parent and each Originator hereby waives each and every claim, defense, demand, action and suit of any kind or nature whatsoever against each of the Lender, the Administrative Agent and each other Affected Party arising on or prior to the date hereof in connection with the Funding Agreement, any of the Related Documents and the transactions contemplated thereby. 4 IN WITNESS WHEREOF, this Amendment No. 2 has been duly executed as of the day and year first above written. IMPERIAL SUGAR SECURITIZATION, LLC, as the Borrower /s/ Karen L. Mercer By _____________________________ Name: Karen L. Mercer Title: Treasurer IMPERIAL DISTRIBUTING, INC., as Servicer /s/ Karen L. Mercer By _____________________________ Name: Karen L. Mercer Title: Treasurer DIAMOND CRYSTAL SPECIALTY FOODS, INC., as an Originator /s/ Karen L. Mercer By _____________________________ Name: Karen L. Mercer Title: Treasurer DIAMOND CRYSTAL BRANDS, INC., as an Originator /s/ Karen L. Mercer By _____________________________ Name: Karen L. Mercer Title: Treasurer HOLLY SUGAR CORPORATION, as an Originator /s/ Karen L. Mercer By _____________________________ Name: Karen L. Mercer Title: Treasurer IMPERIAL-SAVANNAH LP, as an Originator /s/ Karen L. Mercer By _____________________________ Name: Karen L. Mercer Title: Treasurer Signature Page to Amendment No. 2 DIAMOND CRYSTAL BRANDS LP, as an Originator /s/ Karen L. Mercer By _____________________________ Name: Karen L. Mercer Title: Treasurer GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender and as Administrative Agent /s/ Craig Winslow By _____________________________ Name: Craig Winslow Title: Duly Authorized Signatory Signature Page to Amendment No. 2 -----END PRIVACY-ENHANCED MESSAGE-----