EXHIBIT 4.1
THIRD AMENDMENT
Third Amendment, dated as of June 30, 1999 (this "Amendment"), to the
Amended and Restated Credit Agreement, dated as of December 22, 1997 (as
heretofore and hereafter amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among Imperial Sugar Company, formerly known
as Imperial Xxxxx Corporation (the "Borrower"), the several Lenders ("Lenders")
from time to time parties thereto, Xxxxxx Commercial Paper, Inc., as Syndication
Agent, Xxxxxx Brothers Inc., as Arranger and Xxxxxx 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.
(a) The definitions of the terms "Consolidated EBITDA" and "Consolidated
Interest Expense" appearing in Section 1.1 of the Credit Agreement shall be
amended to read as follows:
"Consolidated EBITDA": for any period, the sum of the SPV Interest
Expense for such period plus Consolidated Net Income for such period plus,
without duplication and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) interest expense, amortization or write-off of debt
discount and debt issuance costs and commissions, discounts and other fees
and charges associated with Indebtedness (including the Loans), (c)
depreciation and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) any
extraordinary, unusual or non-recurring expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of
such Consolidated Net Income for such period, losses on sales of assets
outside of the ordinary course of business) and (f) any other non-cash
charges other than amounts expensed during such period attributable to
Capitalized Refurbishment Expenditures, and minus, to the extent included
in the statement of such Consolidated Net Income for such period, the sum
of (a) interest income, (b) any extraordinary, unusual or non-recurring
income or gains (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for such
period, gains on
the sales of assets outside of the ordinary course of business but
excluding, for any period, up to $5,000,000 in gain from sales during such
four quarter period of the Borrower's portfolio of marketable securities)
and (c) any other non-cash income, all as determined on a consolidated
basis.
"Consolidated Interest Expense": for any period, the sum of (a) total
cash interest expense (including that attributable to Capital Lease
Obligations) of the Borrower and its Subsidiaries for such period with
respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries (including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Interest Rate Protection
Agreements to the extent such net costs are allocable to such period in
accordance with GAAP) and (b) the SPV Interest Expense for such period.
(b) Section 1.1 of the Credit Agreement is hereby further amended by
inserting therein in proper alphabetical order the following new definitions:
"Permitted Sellers": shall mean the Borrower and its Wholly Owned
Subsidiaries.
"Receivables": the assets described on Exhibit A.
"Receivables Securitization Program": a securitization program which
provides for the sale by the Permitted Sellers, without recourse, of their
Receivables for a cash consideration of not less than 70% of the unpaid
value of such Receivable; provided that the Net Cash Proceeds of the
initial sale of Receivables pursuant to the Receivables Securitization
Program shall be no less than $95,000,000.
"SPV Interest Expense": for any period the sum of total cash interest
expense of the SPV for such period with respect to all Indebtedness of the
SPV plus all discounts of the sale price of Receivables (or any interest
therein) sold by the SPV pursuant to the Receivables Securitization
Program.
"SPV": a Wholly Owned Subsidiary of the Borrower or any of its
Subsidiaries created for the sole purpose of purchasing Receivables from
the Permitted Sellers as part of the Receivables Securitization Program.
(c) Section 2.12(a) of the Credit Agreement is hereby amended by adding
the following proviso at the end thereof:
; provided that nothing contained in this Section 2.12(a) shall
obligate the SPV to make any prepayment of any Loans under this Agreement.
(d) Section 2.12(b) of the Credit Agreement is hereby amended by adding
the following clauses immediately before the period at the end of the first
sentence thereof:
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(iii) the Net Cash Proceeds received by the Permitted Sellers from
the SPV in an aggregate amount of $95,000,000 of the initial sale of
Receivables as part of the Receivables Securitization Program shall be
applied to the prepayment of the Tranche A Term Loans and Tranche B Term
Loans and the permanent reduction of the Revolving Credit Commitments pro
rata based upon the outstanding principal amount of the Tranche A Term Loan
and Tranche B Term Loans and the aggregate amount of the Revolving Credit
Commitments, (iv) the Net Cash Proceeds in excess of $95,000,000 of the
initial sale of Receivables as part of the Receivables Securitization
Program shall be applied to the prepayment of Revolving Credit Loans, and
(v) proceeds from any subsequent sales of Receivables pursuant to the
Receivables Securitization Program shall be used for working capital
purposes.
(e) The first sentence of Section 2.12(d) shall be amended by adding the
phrase "Except as otherwise provided in Section 2.12(b)(iii), (iv), and (v)" at
the beginning thereof.
(f) Section 2.18(d) is hereby amended to add the following sentence to the
end of Subsection (d) of said Section:
Notwithstanding the foregoing, no Tranche B Term Loan Lender shall
have the right to decline any mandatory prepayment of the Tranche B Term
Loans of such Lender required by Section 2.12(b)(iii).
(g) Section 6.10 of the Credit Agreement is hereby amended as follows:
(i) The following clause (z) shall be inserted prior to the end
of the parenthetical within Section (a) of said Section 6.10:
and (z) any Property of the SPV, including without limitation any
Receivables of the Permitted Sellers sold, assigned or transferred
to the SPV in connection with the Receivables Securitization
Program.
(ii) The following language shall be added to the end of the first
sentence of Subsection (c) of said Section 6.10:
;provided that the provisions of the foregoing clause (iii) shall
not apply to the SPV so long as the Borrower and its Subsidiaries,
as the case may be, comply with the remaining provisions of this
Subsection (c) with respect to the SPV including, without
limitation, by granting to the Collateral Agent, for the benefit of
the Agents and the Lenders a first priority security interest in all
capital stock of the SPV and all promissory notes and other
instruments issued or otherwise given to the Borrower and its
Subsidiaries by the SPV.
(iii) The following language shall be added to said Section 6.10 as
subsection (f) thereof:
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(f) Notwithstanding any provision of this Section 6.10 to the
contrary, in no event shall the SPV have any obligation to grant any
Lien upon any of its Property to the Administrative Agent, the
Collateral Agent or the Lenders.
(h) Section 7.1(c) of the Credit Agreement is hereby amended by deleting
the number 1.30 therein, and substituted in lieu thereof 1.10.
(i) Section 7.1 of the Credit Agreement is hereby amended by adding the
following provision to said Section 7.1 as Subsection (g) thereof:
(g) Notwithstanding any provision of this Section 7.1 to the
contrary, in no event shall the Borrower or any of its Subsidiaries have
any obligation (direct or indirect) to (i) subscribe for additional shares
of equity interests of the SPV, or (ii) maintain or preserve the SPV's
financial condition or to cause the SPV to achieve any specified levels of
operating results.
(j) Section 7.2 of the Credit Agreement is hereby amended by inserting
therein the following new Section (o):
(o) Indebtedness of the Permitted Sellers pursuant to the
Receivables Securitization Program.
(k) Section 7.3 of the Credit Agreement is hereby amended by inserting
therein the following new Section (p):
(p) the interest of any purchaser or investor of the Permitted
Sellers' Receivables purchased or any lien or encumbrance securing
Indebtedness of the SPV to an investor under the Receivables Securitization
Program in such Receivables.
(l) Section 7.5 of the Credit Agreement is hereby amended by adding the
following provision to the end of said section as subsection (j) thereof:
(j) the Disposition by the Permitted Sellers of all or
substantially all of its Receivables pursuant to the Receivables
Securitization Program, provided that the maximum amount of the Receivables
Securitization Program shall not exceed $110,000,000 at any time.
(m) Section 7.8 of The Credit Agreement is hereby amended by inserting
therein the following new Section (o) at the end of said Section 7.8:
(o) an initial capital contribution to the SPV in an amount not to
exceed an amount equal to 20% of the amount of the Receivables
Securitization Program, and investments, if any, arising from the sale of
Receivables at a discount pursuant to the Receivables Securitization
Program.
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(n) The following language shall be added to the end of the last sentence
of Section 7.10 of the Credit Agreement:
and the foregoing shall not prohibit the sale of all or
substantially all of the Permitted Sellers' Receivables, or any undivided
interest therein, pursuant to the Receivables Securitization Program.
(o) Section 7.13 of the Credit Agreement is hereby amended by inserting
the following new Section (d):
, and (d) the foregoing shall not apply to restrictions on the
transfer or encumbrance by the SPV of any Property, including without
limitation Receivables, owned by it contained in the documentation for the
Receivables Securitization Program.
(p) Section 7.14 of the Credit Agreement is hereby amended by adding the
following provision at the end thereof:
, and (iv) any restriction with respect to the SPV or any of its
property.
(q) Section 8 of the Credit Agreement is hereby amended by inserting the
following provision as subsection (m) thereof:
(m) The initial sale of Receivables pursuant to the Receivables
Securitization Program shall not have occurred on or before August 30,
1999.
(r) Section 7 of the Credit Agreement shall be amended by adding the
following provision thereto as Section 7.16:
Section 7.16. The SPV. Notwithstanding any other provision of this
Agreement or any other Loan Document to the contrary, the SPV is not
obligated to guaranty or otherwise directly or indirectly provide credit
support (including granting lien on any of its assets) for any Indebtedness
of the Company or any of its Subsidiaries or Affiliates.
(s) Annex A to the Credit Agreement is hereby replaced by Annex A attached
to this Amendment.
(t) The Required Lenders hereby waive the requirements of Sections 7.1(a)
and 7.1(b) of the Credit Agreement as of June 30, 1999. This waiver is limited
to the matters set forth herein, and the Borrower remains obligated to comply
with the terms of the Credit Agreement and the other Loan Documents, in Sections
7.1(a) and 7.1(b) of the Credit Agreement, as though this waiver had never been
granted.
Section 3. Conditions to Effectiveness. This Amendment shall become
effective as of the date first written above (the "Effective Date") upon
satisfaction of the following conditions precedent:
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(a) The execution and delivery of this Amendment by a duly authorized
officer of each of the Borrower, the Agents and the Required Lenders, and in the
case of the amendment to Section 2.18, the Majority Facility Lenders of the
Tranche B Term Loans;
(b) Payment of an amendment fee of 25 basis points on each Lender's
existing Commitment or, with respect to the Term Lenders, the outstanding
principal amount of their Term Loans, to those Lenders that have approved the
Amendment on or prior to June 30, 1999.
Section 4. Representation and Warranties. The Borrower represents
and warrants to each Agent and each Lender that as of the Effective Date, before
and after giving effect to this Amendment: (i) no Default or Event of Default
has occurred and is continuing; (ii) 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 (iii) 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 consented to hereby, the
provisions of the Credit Agreement are and shall remain in full force and
effect.
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.
Section 7. Release of Liens. Upon notice to the Agent, and to the
Collateral Agent under the Amended and Restated Guarantee and Collateral
Agreement, dated December 22, 1997 (the "Security Agreement"), that any
Permitted Seller intends to sell, transfer or assign Receivables to the SPV in
connection with the Receivables Securitization Program, the Agent agrees to
instruct the Collateral Agent to release the Liens of the Collateral Agent on
behalf of the Lenders on such Receivables, created under the Security Agreement,
and to take all such action as the Borrower reasonably deems necessary to
effectuate the foregoing; provided that, Net Cash Proceeds of such sale,
transfer or assignment shall be promptly delivered to the Agent for the benefit
of the Lenders to the extent, if any, required under Section 2.12(b), as amended
hereunder. As of the date first written above, each Lender hereby releases the
Liens of the Collateral Agent on the property described on Exhibit A and the
Collateral Agent is instructed to, and hereby agrees to, execute UCC financing
statements to effectuate the foregoing for the
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necessary jurisdictions and to take all such further action as the Borrower
reasonably deems necessary to effectuate this release.
Section 8. 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 9. Governing Law. This Amendment shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York.
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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/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
---------------------------------------
Title: Chief Financial Officer
--------------------------------------
Xxxxxx Commercial Paper, Inc., as
Syndication Agent and as a Lender
By: /s/ Xxxxxxx X. X'Xxxxx
-----------------------------------------
Name: Xxxxxxx X. X'Xxxxx
---------------------------------------
Title: Authorized Signatory
--------------------------------------
Xxxxxx Trust and Savings Bank, as
Administrative Agent, Collateral Agent,
Issuing Lender and as a Lender
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
---------------------------------------
Title: Vice President
--------------------------------------
Wachovia Bank, N.A.
By: /s/ X. Xxxxxxxx Xxxxx, Jr.
-----------------------------------------
Name: X. Xxxxxxxx Rison, Jr.
---------------------------------------
Title: Vice President
--------------------------------------
Union Bank of California, N.A.
By: /s/ Hagof Y. Jazmadarian
-----------------------------------------
Name: Hagof Y. Jazmadarian
---------------------------------------
Title: Vice President
--------------------------------------
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US Bancorp AG Credit, Inc.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
The Bank of New York
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------------
Title: Vice President
--------------------------------------
Cooperatieve Centrale Raiffeisen-Boerenleenban
B.A., "Rabobank Nederland" New York Branch
By: /s/ W. Xxxxxxx Xxxxxxx
-----------------------------------------
Name: W. Xxxxxxx Xxxxxxx
---------------------------------------
Title: Executive Credit Officer
--------------------------------------
Senior Vice President
--------------------------------------
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
St. Xxxx Bank for Cooperatives
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Senior Vice President
--------------------------------------
Frost National Bank
By: /s/ W. Xxxxx Xxxxxx
-----------------------------------------
Name: W. Xxxxx Xxxxxx
---------------------------------------
Title: Senior Vice President
--------------------------------------
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Credit Agricole Indosuez
By: /s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
---------------------------------------
Title: First Vice President - Managing Director
--------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------------------
Title: Vice President, Manager
--------------------------------------
Xxxxx Fargo Bank (Texas), N.A.
By: /s/ X.X. Xxxxxxxxx
-----------------------------------------
Name: X.X. Xxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
Balanced High Yield Fund I Ltd.,
By: BHF-Bankaktiengesellschaft, acting
through its New York Branch
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
GCB Investment Portfolio
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Metropolitan Life Insurance Company
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: Director
--------------------------------------
Monumental Life Insurance Company
(Formerly, Peoples Security Life Insurance)
By: /s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President - Investments
--------------------------------------
Balanced High Yield Fund I Ltd.
by: BHF (USA) Capital Corporation
acting as attorney-in-fact
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxx
---------------------------------------
Title: AVP
--------------------------------------
By: /s/ X.X. Xxxxxxxxx
-----------------------------------------
Name: X.X. Xxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
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The Travelers Insurance Co.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Second Vice President
--------------------------------------
Van Kampen CLOI, Ltd.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President & Director
--------------------------------------
Pilgrim American Prime Rate Trust
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx, CEA
---------------------------------------
Title: Vice President
--------------------------------------
Xxxxxxx Xxxxx Debt Strategies Portfolio
By: Xxxxxxx Xxxxx Asset Management L.P.,
as Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Authorized Signatory
--------------------------------------
Xxxxxxx Xxxxx Senior Floating Rate Fund, Inc.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Authorized Signatory
--------------------------------------
Xxxxxxx Xxxxx Income Strategies
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
XXXXXXX XXXXX GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Authorized Signatory
--------------------------------------
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Xxxxxx Diversified Income Trust
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
Xxxxxx Variable Trust - Xxxxxx High Yield Fund
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
Xxxxxx Investments
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
The Toronto Dominion Bank
By:__________________________________________
Name:________________________________________
Title:_______________________________________
Pamco Cayman Ltd.
By: Highland Capital Management, L.P., as
Collateral Management
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
---------------------------------------
Title: Senior Portfolio Manager
--------------------------------------
Balanced High Yield Fund
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Xxx Xxxxxx CLO II, Ltd.
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
XXX XXXXXX CLO II LIMITED
By: Xxx Xxxxxx Management, Inc.
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President & Director
--------------------------------------
Black Diamond CLO 1998 - 1 Ltd.
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title: Principal
--------------------------------------
KZH Sterling LLC
By: /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
---------------------------------------
Title: Authorized Agent
--------------------------------------
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EXHIBIT A
Receivables Defined
The term "Receivables" means all right, title and interest of the Permitted
Sellers in and to (but none of the obligations under) all of the following,
whether now or hereafter existing (herein called the "Contributed Receivables"):
(a) all Receivables of the Permitted Sellers;
(b) all Related Security with respect to such Receivables;
(c) all monies due or to become due with respect to any of the
foregoing;
(d) all books and records related to any of the foregoing; and
(e) all proceeds thereof (as defined in the applicable UCC)
including without limitation, all funds which either are received by the
Permitted Sellers, the SPV or the Servicer, from or on behalf of the
Obligors in payment of any amounts owed (including without limitation,
finance charges, interest and all other charges) in respect of any
Receivables, or are applied to such amounts owed by the Obligors (including
without limitation, insurance payments, if any, that the Permitted Sellers
or the Servicer applies in the ordinary course of its business to amounts
owed in respect of any Receivable).
As used herein, the following terms shall have the following meanings:
"Contracts" means, with respect to any Receivable, any and all
contracts, understandings, instruments, agreements, invoices, notes, or
other writings pursuant to which such Receivable arises or which evidences
such Receivable or under which an Obligor becomes or is obligated to make
payment in respect of such Receivable.
"Obligor" means, with respect to any Receivable the Person obligated
to make payments pursuant to the Contract relating to such Receivable.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Receivable" means any indebtedness and other obligations owed to the
Permitted Sellers or the SPV or any right of the Permitted Sellers or the
SPV to payment from or on behalf of an Obligor, whether constituting an
account, chattel paper, instrument, or general intangible, arising in
connection with the sale of goods or the rendering of services by the
Permitted Sellers or the SPV, and includes, without
limitation, the obligation to pay any finance charges, fees and other
charges with respect thereto. Indebtedness and other obligations arising
from any one transaction, including, without limitation, indebtedness and
other obligations represented by an individual invoice or agreement, shall
constitute a Receivable separate from a Receivable consisting of the
indebtedness and other obligations arising from an other transaction.
"Related Security" means, with respect to any Receivable:
(i) all of the SPV's interest in any goods (including returned
goods), and documentation or title evidencing the shipment or storage
of any goods (including returned goods), relating to any sale giving
rise to such Receivable;
(ii) all other security interests or liens and property subject
thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all UCC financing statements or
similar filings signed by an Obligor relating thereto; and
(iii) all guaranties, indemnities, insurance and other agreements
(including the related Contract) or arrangements of whatever character
from time to time supporting or securing payment of such Receivable or
otherwise relating to such Receivable whether pursuant to the Contract
related to such Receivable or otherwise.
"Servicer" means Imperial Distributing, Inc., as initial Servicer
together with its successors and permitted assigns in such capacity.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the applicable jurisdiction.
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Annex A
PRICING GRID FOR REVOLVING CREDIT LOANS,
SWING LINE LOANS, AND COMMITMENT FEES
------------------------------------------------------------------------------------------------------------
Consolidated Applicable Margin Applicable Margin
Total Leverage for Eurodollar for Base Rate Commitment
Ratio Loans Loans Fee Rate
------------------------------------------------------------------------------------------------------------
Greater than or equal 2.00% 1.00% 0.375%
to 4.00 to 1.00
------------------------------------------------------------------------------------------------------------
Less than 4.00 to 1.00 1.75% 0.75% 0.375%
but greater than or
equal to 3.50 to 1.00
------------------------------------------------------------------------------------------------------------
Less than 3.50 to 1.00 1.50% 0.50% 0.375%
but greater than or
equal to 3.00 to 1.00
------------------------------------------------------------------------------------------------------------
Less than 3.00 to 1.00 1.25% 0.25% 0.250%
------------------------------------------------------------------------------------------------------------
PRICING GRID FOR TRANCHE A TERM LOANS
-----------------------------------------------------------------------------------
Consolidated Applicable Margin Applicable Margin
Total Leverage for Eurodollar for Base Rate
Ratio Loans Loans
-----------------------------------------------------------------------------------
Greater than or equal 2.50% 1.25%
to 4.00 to 1.00
-----------------------------------------------------------------------------------
Less than 4.00 to 1.00 2.25% 1.00%
but greater than or
equal to 3.50 to 1.00
-----------------------------------------------------------------------------------
Less than 3.50 to 1.00 2.00% 0.75%
but greater than or
equal to 3.00 to 1.00
-----------------------------------------------------------------------------------
Less than 3.00 to 1.00 1.75% 0.50%
-----------------------------------------------------------------------------------
PRICING GRID FOR
TRANCHE B TERM LOANS
------------------------------------------------------------------------------------------------------------
Applicable Margin Applicable Margin
for Eurodollar Loans for Base Rate Loans
------------------------------------------------------------------------------------------------------------
3.00% 2.00%
============================================================================================================
Changes in the Applicable Margin with respect to Tranche A Term Loans,
Revolving Credit Loans, Swing Line Loans or in the Commitment Fee Rate resulting
from changes in the Consolidated Total Leverage Ratio shall become effective on
the date (the "Adjustment Date") on which financial statements are delivered to
the Lenders pursuant to Section 6.1 (but in any event not later than the 50th
day after the end of each of the first three quarterly periods of each fiscal
year or the 100th day after the end of each fiscal year, as the case may be) and
shall remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Total Leverage Ratio as at the end of the fiscal
period that would have been covered thereby shall for the purposes of this
definition be deemed to be greater than 4.00 to 1.00. In addition, at all times
while an Event of Default shall have occurred and be continuing, the
Consolidated Total Leverage Ratio shall for the purposes of
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this definition be deemed to be greater than 4.00 to 1.00. Each determination of
the Consolidated Total Leverage Ratio pursuant to this definition shall be made
with respect to the period of four consecutive fiscal quarters of the Borrower
ending at the end of the period covered by the relevant financial statements.
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