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 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.
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/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: VP and Treasurer
Xxxxxx Trust and Savings Bank, as
Administrative Agent, Collateral Agent,
Issuing Lender and as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
9
Xxxxxx Commercial Paper Inc.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
10
Union Bank of California, N.A.
By:
Name:
Title:
11
US Bank National Association
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
00
Xxx Xxxx xx Xxx Xxxx
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
13
Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland" New York Branch
By:
Name:
Title:
By:
Name:
Title:
00
Xxxx Xxxxxx Xxxx xx Xxxxxxx
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
15
Frost National Bank
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Senior Vice President
16
Credit Agricole Indosuez
By:
Name:
Title:
By:
Name:
Title:
17
Xxxxx Fargo Bank (Texas), N.A.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
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/ Xxxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxxx X. Xxxxxxx
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/ Xxxx Xxxxxxxxxxx
Name: Xxxx Xxxxxxxxxxx
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
Xxx Xxxxxx CLO I, Ltd.
By: Xxx Xxxxxx Management Inc., as Collateral
Manager
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
Xxx Xxxxxx CLO II, Ltd.
By: Xxx Xxxxxx Management Inc., as Collateral
Manager
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
Xxx Xxxxxx Senior Income Trust
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
Xxx Xxxxxx Prime Rate Income Trust
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
22
Black Diamond CLO 1998 - 1 Ltd.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Director
Black Diamond International Funding Ltd.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Director
Black Diamond CLO 2000-1 Ltd.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
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:
00
Xxxxxxxx Xxxxxxxx Xxxxxxxx Partners, L.P.
By: Highland Capital Management, L.P. as
General Partner
By:
Name:
Title:
27
Lone Star Partners, L.P.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
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, Xxxxxxx & Co. Inc.
By: /s/ Xxxxxxx X. Hanler
Name: Xxxxxxx X. Hanler
Title: Senior Managing Director
30
