IMPERIAL SUGAR COMPANY
SECOND AMENDMENT TO RESTRUCTURING CREDIT AGREEMENT
SECOND AMENDMENT, dated as of June 26, 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 Commitment"
and "Applicable Overadvance Allowance or Block" 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, (ii) during the period from July 1,
2002, through December 30, 2002, $0, and (iii) 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
July 1, 2002 through September 27, 2002 $40,000,000
September 28, 2002 through December 30, 2002 $25,000,000"
The Applicable Overadvance Allowance or Block will be added to the
Borrowing Base in effect during each period specified above.
2.2. Section 1.1 of the Credit Agreement shall be amended by the
following definition thereto in the appropriate alphabetical order:
" "Extension Conditions": on or before September 27, 2002, the
Borrower satisfies all of the following conditions:
(a) the Borrower reports EBITDA for the eleven months ended August 31,
2002, of not less than $23,900,000;
(b) the Borrower provides the Lenders with a cash flow forecast in
reasonable detail from September 27, 2002 through January 31, 2003, showing
that the Borrower's available financial resources are sufficient to meet
the Borrower's obligations as they become due during the same period; and
(c) as soon as available but in any event not later than 12:00 noon
(Chicago time) on September 26, 2002, the Borrower provides the Lenders
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 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 applicable, and the Borrower indicates in writing to
the Lenders that it will pursue such proposals; and
(d) the Borrower delivers to the Lenders copies of its budget for the
fiscal year ending September 30, 2003, that has been approved by the
Borrower's Board of Directors."
2.3. Section 2.15(e) of the Credit Agreement shall be amended to read as
follows:
"(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
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not then been reimbursed from time to time outstanding during the
period from and including April 1, 2002, through December 30, 2002, at
the rate per annum (calculated on the basis of a year of 360 days and
actual days elapsed) of 1.5% from April 1, 2002, through June 30,
2002, and 6.5% from July 1, 2002, through December 30, 2002. On June
30, 2002, September 30, 2002, and December 30, 2002, all such interest
accrued during the three-month period ending on such date 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 during the three-month period ending
on such dates 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 during the three-month period
ending on such dates with respect to the Term Loans shall be added to
the principal balance of the Term Loans. From and after each such
date, all such amounts shall be evidenced by the promissory notes of
the Borrower evidencing such 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 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;
provided, that if on or before December 31, 2002, all Obligations have
been fully paid, no Letters of Credit are outstanding and all
Commitments have been terminated or expired, interest on such amounts
accrued from and after July 1, 2002, shall be payable at the rate of
1% per annum instead of the rate set above."
2.4. Section 2.18(b) of the Credit Agreement shall be amended by adding the
following sentence thereto as the last sentence of that Section:
"Notwithstanding any provision of this Section 2.18(b) to the
contrary, during the period from and including June 30, 2002, through
December 30, 2002, each mandatory principal prepayment made pursuant to
Section 2.12(b) hereof in connection with an Asset Sale and all prepayments
made with amounts held by the Administrative Agent on June 26, 2002,
pursuant to Section 2.12(b)(iii) of this Agreement shall be applied to
reduce the installments of the Tranche A Term Loans and Tranche B Term
Loans, as the case may be, due on June 30, 2002, September 30, 2002, and
December 31, 2002, in the direct order of their respective maturities until
all such principal installments have been fully paid, then as otherwise
required by this Section 2.18(b)."
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2.5. Section 6.2 of the Credit Agreement shall be amended by replacing the
period appearing at the end of subsection (n) thereof with a semi-colon and by
adding the following provisions as subsections (o) and (p) thereof:
"(o) no later than August 20, 2002, a strategic recapitalization plan
in reasonable detail approved by the Borrower's Board of Directors and no
later than September 6, 2002, a presentation by representatives of the
Borrower and Bank America Securities to the Lenders of that strategic
recapitaliztion plan; and
(p) the Borrower shall cause its advisors to provide the Lenders with
written updates regarding its advisors' analysis of the Borrower'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 Borrower's
financial information for the period ending August 31, 2002 on September
27, 2002."
2.6. The rows relating to the Borrower's fiscal quarters ending June 30,
2002, and September 30, 2002, in table appearing in Section 7.1(a) of the Credit
Agreement shall be amended to read as follows:
"June 30, 2002 Not Tested
September 30, 2002 2.29 to 1; provided that if the Extension
Conditions are satisfied this covenant will
not be tested on this date"
2.7. The table appearing in Section 7.1(b) of the Credit Agreement shall be
amended to read as follows:
CONSOLIDATED CURRENT RATIO
"PERIOD BEGINNING PERIOD ENDING
September 30, 2001 March 31, 2002 1.2 to 1
June 30, 2002 June 30, 2002 Not Tested
September 30, 2002 September 30, 2002
1.2 to 1; provided that if the Extension
Conditions are satisfied this
covenant will not be tested on this date"
December 31, 2002 September 30, 2003 1.3 to 1
December 31, 2003 Thereafter 1.4 to 1"
2.8. The rows relating to the Borrower's fiscal quarters ending June 30,
2002, and September 30, 2002, in the table appearing in Section 7.1(c) of the
Credit Agreement shall be amended to read as follows:
"June 30, 2002 Not tested
September 30, 2002 $93,634,000; provided that if the Extension Conditions
are satisfied this covenant will not be tested on this date"
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2.9. The table appearing in Section 7.1(d) of the Credit Agreement shall be
amended to read as follows:
QUARTER ENDING MINIMUM AMOUNT
September 30, 2001 $19,881,000
December 31, 2001 $21,056,000
March 31, 2002 $15,753,000
June 30, 2002 $20,000,000
September 30, 2002 $59,500,000, or $26,000,000 if the Extension Conditions
are satisfied
December 31, 2002 $65,000,000
March 31, 2003 $75,000,000
June 30, 2003 $83,500,000
September 30, 2003 $93,000,000
December 31, 2003 $91,000,000
March 31, 2004 $90,000,000
Thereafter $88,000,000
2.10. The rows relating to the Borrower's fiscal quarters ending June 30,
2002, and September 30, 2002, in the table appearing in Section 7.1(e) of the
Credit Agreement shall be amended to read as follows:
"June 30, 2002 Not tested
September 30, 2002 3.06 to 1; provided that if the Extension
Conditions are satisfied this covenant will
not be tested on this date"
2.11. The row relating to the Borrower's fiscal quarter ending September
30, 2002, in the table appearing in Section 7.1(f) of the Credit Agreement shall
be amended to read as follows:
"September 30, 2002 0.80 to 1; provided that if the Extension
Conditions are satisfied this covenant will
not be tested on this date"
2.12. Section 7.2(i) of the Credit Agreement shall be amended to read as
follows:
"(i) Indebtedness of the Borrower and its Subsidiaries to Commodity
Credit Corporation; provided that such Indebtedness provides no recourse to
the Borrower or any of its Subsidiaries, and provided further, that the
aggregate principal amount of all such Indebtedness shall not exceed
$30,000,000 at any time;".
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2.13. The Credit Agreement shall be amended by replacing Annex A thereto
with the form of Annex A attached to this Amendment.
Section 3. Conditions Precedent to Effectiveness. This Amendment shall
become effective (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.
3.2. No Default or Event of Default has occurred and is continuing after
giving effect to this Amendment.
3.3. 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.
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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. 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.
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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/ 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:
------------------------------------
Name:
Title:
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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:
------------------------------------
Name:
Title:
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
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XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
00
XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: V.P.
00
XXX XXXX XX XXX XXXX
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
00
XXXX XXXXXX XXXX XX XXXXXXX
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
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FROST NATIONAL BANK
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
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CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
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XXXXX FARGO BANK (TEXAS), N.A.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxxx X.Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxx X. Xxxxxxx
Title: Managing Director
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MONUMENT CAPITAL LTD.
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: /s/ Xxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
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XXX XXXXXX CLO I, LTD.
By: Xxx Xxxxxx Management Inc.,
as Collateral Manager
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
XXX XXXXXX CLO II, LTD.
By: Xxx Xxxxxx Management Inc.,
as Collateral Manager
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
XXX XXXXXX SENIOR INCOME TRUST
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
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KZH STERLING LLC
By: /s/ Xxxxx Xxx
--------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
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LONE STAR PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Portfolio Manager
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