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.
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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.
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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.
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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/ Xxxxx X. Xxxxxx
By _____________________________
Name: Xxxxx X. Xxxxxx
Title: Treasurer
IMPERIAL DISTRIBUTING, INC., as Servicer
/s/ Xxxxx X. Xxxxxx
By _____________________________
Name: Xxxxx X. Xxxxxx
Title: Treasurer
DIAMOND CRYSTAL SPECIALTY FOODS, INC., as an
Originator
/s/ Xxxxx X. Xxxxxx
By _____________________________
Name: Xxxxx X. Xxxxxx
Title: Treasurer
DIAMOND CRYSTAL BRANDS, INC., as an Originator
/s/ Xxxxx X. Xxxxxx
By _____________________________
Name: Xxxxx X. Xxxxxx
Title: Treasurer
XXXXX SUGAR CORPORATION, as an Originator
/s/ Xxxxx X. Xxxxxx
By _____________________________
Name: Xxxxx X. Xxxxxx
Title: Treasurer
IMPERIAL-SAVANNAH LP, as an Originator
/s/ Xxxxx X. Xxxxxx
By _____________________________
Name: Xxxxx X. Xxxxxx
Title: Treasurer
Signature Page
to
Amendment No. 2
DIAMOND CRYSTAL BRANDS LP, as an Originator
/s/ Xxxxx X. Xxxxxx
By _____________________________
Name: Xxxxx X. Xxxxxx
Title: Treasurer
GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender
and as Administrative Agent
/s/ Xxxxx Xxxxxxx
By _____________________________
Name: Xxxxx Xxxxxxx
Title: Duly Authorized Signatory
Signature Page
to
Amendment No. 2
