EXHIBIT 10.34
SPRECKELS INDUSTRIES, INC.
SPRECKELS SUGAR COMPANY, INC.
▇▇▇▇-▇▇▇▇▇▇ COMPANY, INC.
FIRST AMENDMENT TO SECURED REVOLVING CREDIT AGREEMENT
AND SECURED REVOLVING CREDIT NOTE
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, Spreckels Industries, Inc., a Delaware corporation
("Industries"), Spreckels Sugar Company, Inc., a Delaware corporation
("Spreckels"), and ▇▇▇▇-▇▇▇▇▇▇ Company, Inc., a Delaware corporation
("▇▇▇▇-▇▇▇▇▇▇") and you (the "Bank") have entered into a Secured Revolving
Credit Agreement dated as of July 22, 1994 (the "Credit Agreement") pursuant to
which the Bank makes a Revolving Credit (as defined in the Credit Agreement)
available to Spreckels and ▇▇▇▇-▇▇▇▇▇▇ (collectively the "Borrowers" and
individually a "Borrower"). All defined terms used in this Amendment shall have
the same meanings as in the Credit Agreement unless defined differently herein.
Substantially concurrently herewith ▇▇▇▇▇ Sugar Corporation (the
"Purchaser") will acquire all of the capital stock of Spreckels and Limestone
Products Company, Inc., a Delaware corporation ("Limestone"). In connection with
that acquisition the Borrowers have requested the Bank to amend the Credit
Agreement and the other Loan Documents to remove Spreckels as a Borrower
thereunder, to reduce the Bank's Commitment thereunder to $25,000,000, to amend
certain covenants contained therein and to release Limestone from its
obligations under the Subsidiary Guaranty, and the Bank is willing to do so on
the terms and conditions of this Amendment.
1. AMENDMENTS.
The Borrowers and the Bank hereby agree that upon the satisfaction of all
of the conditions precedent contained in Section 2 hereof, the Credit Agreement
and the other Loan Documents shall be amended as follows:
1.1. The Bank consents to the sale of all of the capital stock of
Spreckels and Limestone to the Purchaser.
1.2. All indebtedness, obligations and liabilities of Spreckels and
Limestone to the Bank under the Loan Documents shall be fully paid and
satisfied, and all liens on and security interests in the assets and properties
of Spreckels and Limestone under any of the Loan Documents shall be terminated
and released; excluding, however, such indebtedness,
obligations and liabilities of Spreckels and Limestone relating to the L/Cs
described on Exhibit A attached hereto (the "Retained L/Cs") arising under any
application and agreement for letter of credit previously or hereafter executed
and delivered by Spreckels and/or Limestone to the Bank (the "Retained L/C
Obligations"), which shall continue in full force and effect in accordance with
their terms.
1.3. Industries, ▇▇▇▇-▇▇▇▇▇▇ and Mechanical Products, Inc. shall have no
indebtedness, obligations or liability to the Bank with respect to any
indebtedness, obligations and liabilities of Spreckels and Limestone to the
Bank.
1.4. The term "L/C" shall not include the Retained L/Cs.
1.5. The term "L/C Agreement" shall not include any application and
agreement for letter of credit at any time executed and delivered by Spreckels
or Limestone with respect to any of the Retained L/Cs.
1.6. The term "Reimbursement Obligation" shall not include any of the
Retained L/C Obligations.
1.7. The terms "Borrowers" and "Borrower" shall mean ▇▇▇▇-▇▇▇▇▇▇.
1.8. The term "Obligation" shall mean all indebtedness, obligations and
liabilities of ▇▇▇▇-▇▇▇▇▇▇ to the Bank under the Loan Documents.
1.9. Section 1.1 of the Credit Agreement shall be amended by replacing the
figure "$40,000,000" with the figure "$25,000,000".
1.10. The definition of the term "Borrowing Base" contained in Section 4.1
of the Credit Agreement shall be amended to read as follows:
"Borrowing Base", as determined on the basis of the information
contained in the most recent Borrowing Base Certificate, shall mean, with
respect to ▇▇▇▇-▇▇▇▇▇▇, an amount equal to:
(a) 85% of the amount of Eligible Receivables of ▇▇▇▇-▇▇▇▇▇▇; plus
(b) 50% of the Value of Eligible Inventory of ▇▇▇▇-▇▇▇▇▇▇ consisting
of finished goods and raw materials; plus
(c) 40% of the Value of Eligible Inventory owned by ▇▇▇▇-▇▇▇▇▇▇
consisting of finished parts and assembly."
1.11 Section 7.8(f) and (g) of the Credit Agreement shall be amended to
read as follows:
"(f) Intentionally Omitted;
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(g) Intentionally Omitted;".
1.12. Section 7.14 of the Credit Agreement shall be amended by replacing
the figure "$7,000,000" appearing therein with the figure "$5,000,000".
1.13. Sections 7.17 and 7.18 of the Credit Agreement shall be amended to
read as follows:
"7.17 . Intentionally Omitted.
7.18 . Intentionally Omitted."
1.14. Section 7.24 of the Credit Agreement shall be amended to read as
follows:
"7.24. Intentionally Omitted."
1.15. Each and every reference in any of the Loan Documents to Spreckels
or Limestone shall be of no force or effect.
1.16. Exhibit A to the Credit Agreement and the Note shall each be amended
by replacing the figure "$40,000,000" appearing in the upper left-hand corner
thereof with the figure "$25,000,000", by replacing the phrase "Forty Million
Dollars ($40,000,000)" appearing in the first paragraph thereof with the phrase
"Twenty-Five Million Dollars ($25,000,000)".
1.17. The Bank shall type the following legend on the Note:
"This Note has been amended pursuant to a First Amendment to Secured
Revolving Credit Agreement and Secured Revolving Credit Note dated as
of April 19, 1996 among the Borrowers and ▇▇▇▇▇▇, including a reduction
in the principal amount hereof, to which amendment reference is hereby
made for a statement of the terms thereof."
1.18. Exhibit E to the Credit Agreement shall be replaced by Exhibit E
attached hereto.
2. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of all
of the following conditions precedent:
2.1. The Borrowers and the Bank shall have executed this Amendment.
2.2. Each Guarantor Subsidiary and Industries shall have executed and
delivered to the Bank the Guarantors' Acknowledgment attached hereto.
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2.3. Each of the representations and warranties set forth in Section 5 of
the Credit Agreement shall be true and correct, except that the representations
and warranties made under Section 5.4 of the Credit Agreement shall be deemed to
refer to the most recent financial statements furnished to the Bank pursuant to
Section 7.4 of the Credit Agreement.
2.4. The Borrowers shall be in full compliance with all of the terms and
conditions of the Credit Agreement and no Event of Default or Potential Default
shall have occurred and be continuing thereunder or shall result after giving
effect to this Amendment which has not been waived by the Bank.
2.5. The aggregate principal amount of all loans and unpaid Reimbursement
Obligations and the maximum amount available to be drawn under all L/Cs
outstanding under the Credit Agreement (exclusive of the Retained L/Cs) shall
not exceed the lesser of $25,000,000 or ▇▇▇▇-▇▇▇▇▇▇'▇ Borrowing Base.
2.6. The Bank shall have received an application and agreement for letter
of credit executed and delivered by Imperial ▇▇▇▇▇ Corporation and either
Spreckels or Limestone, as the case may be, with respect to each of the Retained
L/Cs.
2.7. Evidence satisfactory to the Bank that Industries' guaranty of
Spreckels' obligations to General Electric Capital Corporation and ▇▇▇▇▇▇
Financial Corporation have been terminated without any liability to Industries.
2.8. The Bank shall have received the amount specified in the pay-off
letter dated even date herewith from the Bank, Industries, Spreckels and
▇▇▇▇-▇▇▇▇▇▇ to Imperial ▇▇▇▇▇ Corporation.
3. REPRESENTATIONS.
In order to induce the Bank to execute and deliver this Amendment, the
Borrowers hereby represents to the Bank that as of the date hereof, the
representations and warranties set forth in Section 5 of the Credit Agreement
are and shall be and remain true and correct (except that the representations
contained in Section 5.4 shall be deemed to refer to the most recent financial
statements of the Borrowers delivered to the Bank) and the Borrowers are in full
compliance with all of the terms and conditions of the Credit Agreement and no
Potential Default or Event of Default has occurred and is continuing under the
Credit Agreement or shall result after giving effect to this Amendment.
4. MISCELLANEOUS.
4.1. ▇▇▇▇-▇▇▇▇▇▇ hereby agrees that notwithstanding the execution and
delivery hereof, the Security Agreement shall be and remain in full force and
effect and that any rights and remedies of the Bank thereunder, obligations of
▇▇▇▇-▇▇▇▇▇▇ thereunder and any liens or security interests created or provided
for thereunder shall be and remain in full force and effect and shall not be
affected, impaired or discharged hereby. Nothing herein
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contained shall in any manner affect or impair the priority of the liens and
security interest created and provided for by the Security Agreement as to the
indebtedness which would be secured thereby prior to giving effect hereto.
4.2. Except as specifically amended herein, the Credit Agreement shall
continue in full force and effect in accordance with its original terms.
Reference to the 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.
4.3. This Amendment may be executed in any number of counterparts, and by
the different parties on different counterparts, all of which taken together
shall constitute one and the same instrument. Any of the parties hereto may
execute this Amendment by signing any such counterpart and each of such
counterparts shall for all purposes be deemed to be an original. This Amendment
shall be governed by the internal laws of the State of Illinois.
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Dated as of April 19, 1996.
SPRECKELS SUGAR COMPANY, INC.
By (Signature of ▇▇▇▇▇▇ ▇. Roof appears here)
Its Treasurer
DUFF-NOTON COMPANY, INC.
By (Signature of ▇▇▇▇▇▇ ▇. Roof appears here)
Its Treasurer
Accepted as of the date last written above.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By
Its Vice President
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Dated as of April 19, 1996.
SPRECKELS SUGAR COMPANY, INC.
By
Its
▇▇▇▇-▇▇▇▇▇▇ COMPANY, INC.
By
Its
Accepted as of the date last written above.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By (Signature of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ appears here)
Its Vice President
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GUARANTORS' ACKNOWLEDGMENT
The undersigned, Spreckels Industries, Inc., a Delaware corporation, has
executed and delivered the Credit Agreement (as defined in the above and
foregoing Amendment) as a guarantor thereunder, and the undersigned, Mechanical
Products, Inc., a Delaware corporation, has signed a Guaranty Agreement dated as
of July 22, 1994, to the Bank. Each of the undersigned hereby acknowledges the
amendment of the Credit Agreement as set forth above and confirms that its
guaranty and all of its respective obligations thereunder remain in full force
and effect and, without limiting the foregoing, acknowledges and agrees that all
of ▇▇▇▇-▇▇▇▇▇▇'▇ indebtedness, obligations and liabilities to the Bank under the
Credit Agreement as amended by the above and foregoing Amendment constitutes
indebtedness which is guarantied by the undersigned under its respective
guaranty. Each of the undersigned further agrees that its acknowledgment to any
further amendments to the Credit Agreement shall not be required as a result of
this acknowledgment having been obtained, except to the extent if any, required
by the terms of its guaranty.
Dated as of the date last written above.
SPRECKELS INDUSTRIES, INC.
By (Signature of ▇▇▇▇▇▇ ▇. Roof appears here)
Its Treasurer
MECHANICAL PRODUCTS, INC.
By (Signature of ▇▇▇▇▇▇ ▇. Roof appears here)
Its Treasurer
EXHIBIT E
SPRECKELS INDUSTRIES, INC.
▇▇▇▇-▇▇▇▇▇▇ COMPANY, INC.
BORROWING BASE CERTIFICATE
As of _________________, 19__
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Pursuant to the terms of that certain Secured Revolving Credit Agreement
dated as of July 22, 1994, as amended, originally among SPRECKELS INDUSTRIES,
INC., SPRECKELS SUGAR COMPANY, INC. AND ▇▇▇▇-▇▇▇▇▇▇ COMPANY, INC. (the
"Borrower") and you (the "Agreement"), the Borrower delivers to you the
following computation of the Borrowing Base, as defined in Section 4.1 of the
Agreement, as of the computation date of ________________, 19__. The Borrower
certifies that the following computation of the Borrowing Base was made in
accordance with Section 4.1 of the Agreement and that as of the last day of the
preceding weekly period the Borrower has re-examined the terms and provisions of
the Agreement and that no Potential Default or Event of Default has occurred or,
if any such Potential Default or Event of Default has occurred, a description of
such Potential Default or Event of Default and the action, if any, taken by the
Borrower to remedy the same are specified hereinbelow.
RECEIVABLES ▇▇▇▇-▇▇▇▇▇▇
Aging: Current - 30 days $__________
31-60 days
61-90 days
Over 90 days ___________
Total Receivables
Less: Ineligible Receivables ___________
Eligible Receivables $__________ $___________
85% of Eligible Receivables
▇▇▇▇-▇▇▇▇▇▇ FINISHED GOODS INVENTORY
Finished Goods Inventory Value $__________
Less: Ineligible Finished Goods
Inventory Value ___________
Total Value $__________
50% Finished Parts Inventory Value $___________
▇▇▇▇-▇▇▇▇▇▇ RAW MATERIALS INVENTORY
Raw Material Inventory Value $__________
Less: Ineligible Raw Material
Inventory Value $__________
Total Value $__________
50% Raw Materials Inventory Value $___________
▇▇▇▇-▇▇▇▇▇▇ FINISHED PARTS INVENTORY
Finished Parts Inventory Value $__________
Less: Ineligible Finished Parts
Inventory Value ----------
Total Value $__________
40% Finished Parts Inventory Value $___________
BORROWING BASE $___________
Loans and L/C's Outstanding $__________
Excess (Deficit) $___________
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The Information contained in this certificate is true and correct on the
date hereof.
SPRECKELS INDUSTRIES, INC.
By
Its
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EXHIBIT A
THE RETAINED LETTERS OF CREDIT
SPRECKELS
Number Amount Beneficiary
SPL 34110 $34,000 Hacienda Venture
SPL 34745 $486,540 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ $239,000 Eldorado County