EXECUTION COPY
AMENDMENT NO. 3
Dated as of June 28, 2002
to
RECEIVABLES FUNDING AGREEMENT
Dated as of August 28, 2001
THIS AMENDMENT NO. 3 (this "Amendment") is entered into as of June 28, 2002
by and among IMPERIAL SUGAR COMPANY, a Texas corporation ("Imperial"), 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 Borrower, 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 Funding Agreement are set
forth in Annex X attached thereto ("Annex X"); and
WHEREAS, 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 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, the Funding Agreement is hereby amended as follows:
(a) Section 5.01 is hereby amended to add the following new
subsection (h) thereto:
"(h) Extension Conditions. If each of the following conditions
(collectively, the "Extension Conditions") is satisfied on or before
September 27, 2002, the Borrower shall pay to the Administrative Agent
for its account and the account of the Lenders, a fee of $100,000 on
September 27, 2002:
(i) the Parent reports "EBITDA" (as such term is defined in
the Credit Agreement as in effect on the Closing Date) for the
eleven months ended August 31, 2002 of not less than $23,900,000;
(ii) the Parent provides the Administrative Agent a cash
flow forecast in reasonable detail from September 27, 2002
through January 31, 2003, showing that the Parent's available
financial resources are sufficient to meet the Parent's
obligations as they become due during the same period;
(iii) as soon as available but in any event not later than
12:00 noon (Chicago time) on September 26, 2002, the Parent
provides the Administrative Agent with copies of letters of
interest and/or formal proposals from economically viable
potential buyers of assets, operating units or any combination
thereof or lenders or providers of junior capital, reasonably
satisfactory to the Administrative Agent (and the Administrative
Agent agrees to inform the Borrower as promptly as practicable,
but in any event no later than 12:00 noon, Chicago time, on
September 30, 2002, whether any such letters of interest and/or
formal proposals are reasonably satisfactory to it), to provide
for the repayment of the "Loans" and reductions of the "Revolving
Credit Commitment" (as such terms are defined in the Credit
Agreement as in effect on the Closing Date) in an aggregate
amount not less than $100,000,000 by no later than December 31,
2002, on terms and conditions and pursuant to documentation
satisfactory to the "Lenders" or "Required Lenders" (as such
terms are defined in the Credit Agreement as in effect on the
Closing Date) and the Parent indicates in writing to the
Administrative Agent that it will pursue such proposals;
(iv) the Parent delivers to the Administrative Agent copies
of its budget for the fiscal year ending September 30, 2003 that
has been approved by the Parent's board of directors; and
(v) the "Extension Conditions" under (and as defined in) the
Credit Agreement shall have been satisfied.
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(b) Section 5.02 is hereby amended to delete subsections (d) and
(e) in their entirety and substitute the following therefor:
"(d) no later than August 20, 2002, a strategic
recapitalization plan in reasonable detail approved by the
Parent's Board of Directors and no later than September 6, 2002,
a presentation by representatives of the Parent and Bank America
Securities to the Administrative Agent and the Lenders of that
strategic recapitalization plan.
(e) the Parent shall cause its advisors to provide the
Administrative Agent and the Lenders with written updates
regarding its advisors' analysis of the Parent's asset sales,
capital raising possibilities and other strategic initiatives on
or prior to July 31, 2002, and September 26, 2002, and thereafter
on dates to be determined by the Administrative Agent upon
receipt of the Parent's financial information for the period
ending August 31, 2002 on September 27, 2002."
(c) The rows relating to the fiscal quarters ending June 30, 2002
and September 30, 2002, in the table appearing in Section 9.01(x) are
hereby amended as follows:
------------------------------------------------------------ ---------------------------------
Fiscal Quarter Consolidated Fixed Charge Coverage Ratio
------------------------------------------------------------ ---------------------------------
June 30, 2002 Not tested
------------------------------------------------------------ ---------------------------------
September 30, 2002 0.80 to 1.00; provided, however, that if each of the
Extension Conditions is satisfied and the Borrower pays
to the Administrative Agent the fee described in
Section 5.01(h) this covenant will not be tested on
this date
------------------------------------------------------------ ---------------------------------
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, the
Administrative Agent and the Lenders hereby consent to the Second Amendment to
Restructuring Credit Agreement in the form attached hereto as Exhibit A;
provided, however, that if the fee described in Section 5.01(h) of the Funding
Agreement becomes due and payable and the Borrower shall not have paid such fee
to the Administrative Agent on or before September 27, 2002, the consent of the
Administrative Agent and the Lenders given in this Section 2 shall not apply to
the amendments described in Sections 2.6 through 2.10 of the Second Amendment to
Restructuring Credit Agreement as they relate to testing of the financial
covenants set forth in Section 7.1 of the Credit Agreement on September 30,
2002.
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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 Second 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 $100,000 for its account and the
account of the Lenders; and
(ii) the Second Amendment to Restructuring Credit Agreement shall be effective.
4. Representations and Warranties.
(a) Upon the effectiveness of this Amendment, the Borrower and the Servicer
each (i) hereby reaffirms in all material respects all covenants,
representations and warranties made by it in 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 Borrower and the Servicer hereby represents and warrants that this
Amendment 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 3 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.
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(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.
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
Servicer and Imperial that in entering into this Amendment the Lenders and the
Administrative Agent are not establishing any course of dealing with the
Borrower, 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
and Imperial 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.
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IN WITNESS WHEREOF, this Amendment No. 3 has been duly executed as of the
day and year first above written.
IMPERIAL SUGAR SECURITIZATION, LLC, as
the Borrower
By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
IMPERIAL DISTRIBUTING, INC., as Servicer
By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
IMPERIAL SUGAR COMPANY
By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: VP and Treasurer
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender and as
Administrative Agent
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Duly Authorized Signatory
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