Exhibit 4(c)(4)
AMENDMENT NO.2
Dated as of March 27, 2000
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of June 30, 1999
This AMENDMENT NO. 2 (this "Amendment") dated as of March 27, 2000 is
entered into among IMPERIAL SECURITIZATION CORPORATION (the "Seller"), IMPERIAL
DISTRIBUTING, INC. ("Imperial"), as Servicer, IMPERIAL SUGAR COMPANY (the
"Performance Guarantor"), FAIRWAY FINANCE CORPORATION (the "Purchaser"), and BMO
XXXXXXX XXXXX CORP. ("Xxxxxxx Xxxxx") (formerly known as XXXXXXX XXXXX
SECURITIES INC.), as agent for Purchaser (in such capacity, together with its
successors and assigns, the "Agent").
RECITALS
WHEREAS, the parties hereto have entered into a certain Receivables
Purchase Agreement dated as of June 30, 1999, as amended by Amendment No. 1,
dated as of December 13, 1999 (the "Agreement");
WHEREAS, the parties hereto wish to make certain changes to the
Agreement as herein provided;
NOW, THEREFORE, in consideration of the promises and the mutual
agreements contained herein and in the Agreement, the parties hereto agree as
follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein are used as defined in the Agreement.
SECTION 2. Amendments to Agreement. The Agreement is herby amended as
follows:
2.1 Exhibit I of the Agreement is hereby amended by adding the following
definitions, as alphabetically appropriate:
"'Aged Ratio' means the ratio (expressed as a percentage and rounded
upward to the nearest 1/100 of 1%) computed as of the last day of each Fiscal
Month by dividing (i) the aggregate Outstanding Balance of all Pool Receivables
that are Aged Receivables or that would have been Aged Receivables had they not
been written off the books of the Seller by (ii) the aggregate credit sales made
by all the Originators during the month that is three Fiscal Months before such
month."
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"'Aged Receivable' means a Receivable:
(i) as to which any payment, or part thereof, remains unpaid for
more than 90 days from the invoice date for such Receivable or such
other number of days from the invoice date for such Receivable approved
by the Agent subject to the satisfaction of the Rating Agency Condition;
(ii) as to which the Obligor thereof or any other Person
obligated thereon or owning any Related Security in respect becomes the
subject of any Insolvency Proceeding; or
(iii) which, consistent with the Credit and Collection Policy,
would be written off the Seller's books as uncollectible."
"'Cut-Off Date' means February 29, 2000."
"'GAAP' means the general accepted United States accounting principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors and successors from time to time."
"'Shortpay Amount' means with respect to any Shortpay Receivable at any
time an amount equal to the difference between the original invoiced amount for
such Shortpay Receivable and the amount actually received by the Seller or the
Servicer from or on behalf of the Obligor of such Shortpay Receivable."
"'Shortpay Receivable' means a Receivable as to which the Obligor has
paid to the Seller on account of such Receivable less than the original invoiced
amount for such Receivable because such Obligor believes it is entitled to a
promotional discount or allowance with respect thereto."
2.2 The definition of "Defaulted Receivable" as set forth in the Exhibit I
of the Agreement is hereby amended by adding the following proviso to clause
(i) of such definition.
"provided, however, that on and prior to the Cut-Off Date any portion of such
payment that remains so unpaid equal to the Shortpay Amount with respect to such
Receivable shall not be considered to be past due for purposes of this clause
(i) and after the Cut-Off date any portion of such payment that remains so
unpaid equal to the Shortpay Amount with respect to such Receivable shall be
considered to be past due for purposes of this clause (i), unless and until the
date the Servicer determines that the Obligor is entitled to the promotional
discount or allowance that gave rise to such Shortpay Amount."
2.3 The definition of "Delinquent Receivable" as set forth in the Exhibit
I of the Agreement is hereby amended by adding the following proviso to clause
(i) of such definition:
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"provided, however, that on and prior to the Cut-Off Date any portion of such
payment that remains so unpaid equal to the Shortpay Amount with respect to such
Receivable shall not be considered to be past due for purposes of this clause
(i) and after the Cut-Off date any portion of such payment that remains so
unpaid equal to the Shortpay Amount with respect to such Receivable shall be
considered to be past due for purposes of this clause (i), unless and until the
date the Servicer determines that the Obligor is entitled to the promotional
discount or allowance that gave rise to such Shortpay Amount."
2.4 The definition of "Dilution Ratio" as set forth in the Exhibit I of
the Agreement is hereby amended in its entirety as follows:
"'Dilution Ratio' means for any Fiscal Month, the ratio (expressed as a
percentage and rounded upwards to the nearest 1/100th of 1%) of (a) the extent
to which the aggregate Outstanding Balance of all Pool Receivables during such
period that have been reduced or adjusted as a result of any defective,
rejected, returned, repossessed or foreclosed goods or services, or any discount
or adjustment made by Seller or Servicer or any dispute between the Seller or
the Servicer and an Obligor, to (b) the aggregate credit sales made by all the
Originators during the Fiscal Month that is two months prior to such Fiscal
Month; provided, however, that (i) on and prior to the Cut-Off Date, any
Shortpay Amounts shall be included in the amount calculated pursuant to clause
(a) in the month that such Shortpay Amount occurred and (ii) after the Cut-Off
Date, any Shortpay Amount with respect to any Pool Receivable shall be included
in the amount calculated pursuant to clause (a) on the date the Servicer
determines that the Obligor is entitled to the promotional discount or allowance
that gave rise to the Shortpay Amount."
2.5 Clause (ii) of the definition of "Loss Percentage" as set forth in
the Exhibit I of the Agreement is hereby amended in its entirety as follows:
"(ii)(A) on and prior to July 15, 2000, 4 times the sum of the (x)
highest average of Aged Ratios for any three consecutive Fiscal Months during
the twelve most recent Fiscal Months, plus (y) the highest average of Dilution
Ratios for any three consecutive Fiscal Months during the twelve most recent
Fiscal Months, and (B) after July 15, 2000 (unless otherwise agreed to by the
Agent in a writing signed by the Agent), 4 times the sum of the (x) highest
average of Default Ratios for any three consecutive Fiscal Months during the
twelve most recent Fiscal Months, plus (y) the highest average of Dilution
Ratios for any three consecutive Fiscal Months during the twelve most recent
Fiscal Months,,"
2.6 The definition of "Normal Concentration Percentage" as set forth in
the Exhibit I of the Agreement is hereby amended in its entirety as follows:
"'Normal Concentration Percentage' for any Obligor means at any time
2.5% if such Obligor is not a Special Obligor, 4.5% if such Obligor is Alliant
Food Service, Inc., or Mars, Inc., or if such Obligor is a Special Obligor, 8%
if such Special Obligor is rated A or better by S&P and A2 or better by Xxxxx'x,
6% if such Special Obligor is rated BBB+ or better by S&P and Baa1 or
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better by Xxxxx'x and 4% if such Special Obligor is not so rated but is rated at
least BBB- by S&P and Baa3 by Xxxxx'x."
2.7 The definition of "Outstanding Balance" as set forth in Exhibit I
of the Agreement is hereby amended in its entirety as follows:
"'Outstanding Balance' means with respect to any Receivable at any time,
the then outstanding principal balance thereof; provided, however, that (i) on
and prior to the Cut-Off Date such principal balance shall be calculated net of
any Shortpay Amount on the day that such Shortpay Amount occurred with respect
to any Receivable and (ii) after the Cut-Off Date if such Receivable is a
Shortpay Receivable the related Shortpay Amount (other than a Shortpay Amount
referred to in clause (i) above) shall be deducted from the calculation of the
outstanding principal balance of such Receivable on the date the Servicer
determines that the Obligor is entitled to the promotional discount or allowance
that gave rise to the Shortpay Amount."
2.8 The definition of "Participation Report Date" as set forth in
Exhibit I of the Agreement is hereby amended in its entirety as follows:
"'Participation Report Date' means the last Business Day of each week or
more frequently as requested by the Agent."
2.9 Section 1.4(e) of the Agreement is hereby amended in its entirety
as follows:
"(i) if on any day the Outstanding Balance of any Pool Receivable is
reduced or adjusted as a result of any defective, rejected, returned,
repossessed or foreclosed goods or services, or any discount, rebate or other
adjustment made by the Seller, any Originator or Servicer, or any setoff or
dispute between the Seller, any Originator or the Servicer (if the Servicer is
IDI or an Affiliate thereof) and an Obligor, the Seller shall be deemed to have
received on such day a Collection of such Pool Receivable in the amount of such
reduction or adjustment; provided, however, that (i) on and prior to the Cut-Off
Date, any Shortpay Amounts shall be included in the amount of such reduction or
adjustment and (ii) after the Cut-Off Date, any Shortpay Amount with respect to
any Pool Receivable shall be included in the amount of such reduction or
adjustment on the date the Servicer determines that the Obligor is entitled to
the promotional discount or allowance that gave rise to the Shortpay Amount;"
2.10 Paragraph (d) of Exhibit V is amendment in its entirety as
follows:
"The Seller, any Originator or the Servicer shall fail to perform or
observe any other term, covenant or agreement contained in the Agreement or any
other Transaction Document on its part to be performed or observed and any such
failure shall remain unremedied for 30 days (or, with respect to a failure to
deliver a Servicer Report or Participation Report one Business Day) after a
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Responsible Officer of the Seller, any Originator or Servicer, as applicable,
has notice or knowledge thereof;"
2.11 Paragraph (i) of Exhibit V is amended by deleting the word "five"
and inserting in its place the word "three."
2.12 Schedule II is hereby amended to add the following:
"Lock-Box Bank" "Lock-Box Account"
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Mellon Bank, N.A. 0584860
SECTION 3. Miscellaneous.
3.1 Effectiveness. This Amendment shall become effective on the date
when the following conditions shall have been satisfied:
(a) the Agent shall have received (i) an original counterpart (or
counterparts) of this Amendment, executed and delivered by each of the parties
hereto, or other evidence satisfactory to the Agent of the execution and
delivery of this Amendment by such parties, (ii) a written statement by S&P and
Xxxxx'x that this Amendment will not result in a downgrade or withdrawal of the
rating of the Notes, (iii) a confirmation from each Originator to the effect
that the Servicer and each Originator have placed on the most recent, and have
taken all steps reasonably necessary to ensure that there shall be placed on
subsequent, summary master control data processing reports the legend referred
to in Section 4.1(i) of the Purchase and Sale Agreement, and (iv) such other
documents and instruments as the Agent may reasonably request, and
(b) Evidence of payment by the Seller of all accrued and unpaid fees
(including those contemplated by the Fee Letter), costs and expenses to the
extent then due and payable on the date hereof, together with Attorney Costs of
the Agent to the extent invoiced prior to or on such date, plus such additional
amounts of Attorney Costs as shall constitute the Agent's reasonable estimate of
Attorney Costs incurred or to be incurred by it through the effective date of
this Amendment; including any such costs, fees and expenses arising under or
referenced in Section 5.4 of the Agreement.
3.2 References to Agreement. Upon the effectiveness of this Amendment,
each reference in the Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import shall mean and be a reference to the Agreement
as amended hereby, and each reference to the Agreement
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in any other document, instrument or agreement executed and/or delivered in
connection with the Agreement shall mean and be a reference to the Agreement as
amended hereby.
3.3 Effect on the Agreement. Except as specifically amended above, the
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.
3.4 No Waiver. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of any
party under the Agreement or any other document, instrument or agreement
executed in connection therewith, nor constitute a waiver of any provision
contained therein, except as specifically set forth herein.
3.5 Governing Law. This Amendment, including the rights and duties of
the parties hereto, shall be governed by, and construed in accordance with, the
laws of the State of Texas (without giving effect to the conflict of laws
principles thereof).
3.6 Successors and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
3.7 Headings. The Section headings in this Amendment are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of this Amendment or any provision hereof.
3.8 Counterparts. This Amendment may be executed by the parties hereto
in several counterparts, each of which shall be deemed to be an original and all
of which shall constitute together but one and the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
IMPERIAL SECURITIZATION CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President & Treasurer
IMPERIAL DISTRIBUTING, INC. as Servicer
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President & Treasurer
IMPERIAL SUGAR COMPANY
as Perfomance Guarantor
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
FAIRWAY FINANCE CORPORATION, as Purchaser
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
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BMO XXXXXXX XXXXX CORP., as Agent
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
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