EXHIBIT 4.3
AMENDMENT NO. 3
DATED AS OF JANUARY 16, 2001
TO
RECEIVABLES PURCHASE AGREEMENT
DATED AS OF JUNE 30, 1999
This AMENDMENT NO. 3 (this "Amendment") dated as of January 16, 2001
is entered into among IMPERIAL SECURITIZATION CORPORATION (the "Seller"),
IMPERIAL DISTRIBUTING, INC. ("IDI"), as Servicer, IMPERIAL SUGAR COMPANY (the
"Imperial"), FAIRWAY FINANCE CORPORATION (the "Purchaser"), and BMO ▇▇▇▇▇▇▇
▇▇▇▇▇ CORP. ("▇▇▇▇▇▇▇ ▇▇▇▇▇") (formerly known as ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 and Amendment No. 2 dated as of March 27, 2000 (as
further amended, amended and restated, supplemented or otherwise modified from
time to time, 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:
I. SECTION Definitions. All capitalized terms not otherwise defined
herein are used as defined in the Agreement.
II. SECTION Amendments to Agreement. The Agreement is hereby amended
as follows:
2.1. Exhibit I of the Agreement is hereby amended by adding the
following definitions, as alphabetically appropriate:
"'Bankruptcy Court' means the Untied States Bankruptcy Court for the
District of Delaware or any other court having jurisdiction over the Case from
time to time."
"'Case' means the case commenced by Imperial in the Bankruptcy Court
on the Filing Date under Chapter 11 of the Bankruptcy Code."
"'Confirmation Order' means a confirmation order of the Bankruptcy
Court confirming the Reorganization Plan."
"'DIP Loan Agreement' means the DIP Loan Agreement, dated as of
January 16, 2001 (as amended, supplemented or otherwise modified from time to
time), among Imperial, the several lenders from time to time parties thereto and
▇▇▇▇▇▇ Trust and Savings Bank, for itself and as agent for the lenders."
"'Filing Date' means January 16, 2001."
"'Order' means an order of the Bankruptcy Court, authorizing and
approving all aspects of the Transactions to which Imperial, the Seller, IDI or
any Originator is a party and the definitive documentation in connection
therewith and otherwise satisfactory in all respects to the Agent."
"'Reorganization Plan' means a plan of reorganization in the Case."
"'Transactions' means the execution, delivery and the performance by
the Purchaser of each of the Transaction Documents and other transactions
contemplated hereby and thereby."
"'Unmatured Purchase and Sale Termination Event' means an event which,
with the giving of notice or lapse of time, or both, would constitute a Purchase
and Sale Termination Event."
2.2. The definition of "Bank Rate" as set forth in the Exhibit I of
the Agreement is hereby amended in its entirety as follows:
"'Bank Rate' for any Yield Period for any Portion of the Investment of
the Participation means an interest rate per annum equal to the Applicable
Margin above the Base Rate for such Yield Period.
2.3. The definition of "Discount" as set forth in the Exhibit I of
the Agreement is hereby amended in its entirety as follows:
"'Discount' means: for each Portion of Investment of the Participation
for any Yield Period,
ED
BR x I x Year + TF
where:
BR = the Bank Rate for the Portion of Investment of the Participation
for such Yield Period
I = the Portion of Investment of the Participation during such Yield
Period
ED = the actual number of days during such Yield Period
Year = 365 or 366 days, as applicable
TF = the Termination Fee, if any, for the Portion of Investment of the
Participation for such Yield Period
provided, however, that no provision of the Agreement shall require the payment
or permit the collection of Discount in excess of the maximum permitted by
applicable law; and provided, further, that Discount for the Portion of
Investment of the Participation shall not be considered paid by any distribution
to the extent that at any time all or a portion of such distribution is
rescinded or must otherwise be returned for any reason. "
2.4. The definition of "Facility Termination Date" as set forth in
the Exhibit I of the Agreement is hereby amended in its entirety as follows:
"'Facility Termination Date' means the earliest to occur of: (a) the
date determined pursuant to Section 2.2 of the Agreement and (b) the current
scheduled termination date of the commitments of the Liquidity Banks under
Section 12 of the Liquidity Agreement."
2.5. The proviso to Section 2.2 of the Agreement is hereby amended in
its entirety as follows:
"provided, that automatically upon the occurrence of any event (without any
requirement for the passage of time or giving of notice) described in Subsection
(g), (i), (k), (o), (p), (q), (r), (s), (t), (u) or (v) of Exhibit V, the
Facility Termination Date shall occur."
2.6 Paragraph (b)(ii) of Section II of Exhibit II of the Agreement is
hereby amended in its entirety as follows:
"(i) the representations and warranties contained in Exhibit III (as
modified to reflect the filing of the Case and the entry of the Order by the
Bankruptcy Court) are true and correct on and as of the date of such purchase or
reinvestment as though made on and as of such date; and"
2.7 Section 2 of Exhibit II of the Agreement is hereby amended to the
add the following at the end thereof:
"; and (d) the Order shall be in full force and effect, and shall not have been
reversed, modified, amended, stayed (other than stays which have been
terminated), supplemented, vacated or rescinded, which Order shall (i) provide
and allow for the sale and purchase of Receivables pursuant to the Purchase and
Contribution Agreement and the purchase and reinvestments of undivided
percentage ownership interests with regard to the Participation pursuant to this
Agreement and (ii) authorize Imperial, IDI, and the Originators to continue
consolidated cash management system, maintenance and use of existing bank
accounts, use of existing business forms, and use of investment and deposit
guidelines that authorizes the continued maintenance of the Lock-Box Account,
Collection Account, the Liquidation Account and all other accounts used in
connection with the Transaction, and in connection with which the Liquidity
Banks extend the current scheduled termination date of their respective
commitments under Section 12 of the Liquidity Agreement."
2.8 Paragraph (g) of Exhibit V of the Agreement is hereby amended in
its entirety as follows:
"; or (g) The Seller shall generally not pay its debts as such debts become due,
or shall admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any proceeding shall
be instituted by or against the Seller seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or
the Seller shall take any corporate action to authorize any of the actions set
forth above in this paragraph (g);"
2.9 Paragraph (m) of Exhibit V of the Agreement is hereby amended in
its entirety as follows:
"; (m) Imperial shall fail to perform and comply with each of the financial
covenants set forth in Section 7 of the DIP Loan Agreement as in effect on the
date hereof, (but without giving effect to any other amendment, modification or
waiver to such financial covenants from time to time under the DIP Loan
Agreement), each of which covenants and agreements, together with all related
definitions, exhibits and ancillary provisions, are hereby incorporated in this
Agreement by reference as though specifically set forth in this paragraph (m)
and shall survive the termination and/or expiration of the DIP Loan Agreement;
or"
2.10. Paragraph (n) of Exhibit V of the Agreement is hereby amended in
its entirety as follows:
" ; (n) the occurrence of an event of default set forth in Section 9 of the DIP
Loan Agreement as in effect on the date hereof, (regardless of whether such
event of default may be amended, modified or waived from time to time in
accordance with the DIP Loan Agreement), each of which events of default and
agreements, together with all related definitions, exhibits and ancillary
provisions, are hereby incorporated in this Agreement by reference as though
specifically set forth in this paragraph (n) and shall survive the termination
and/or expiration of the DIP Loan Agreement; or"
2.11. Exhibit V is hereby amended to add the following at the end
thereof:
"(o) The Bankruptcy Court shall have entered an order dismissing or
suspending the Case or converting the Case to a case under Chapter 7 of the
Bankruptcy Code; or
(p) Either Imperial, IDI, the Seller or any Originator shall file an
application, or there shall arise, any other claim which is pari passu with or
senior to the claims of the Purchaser arising hereunder; or
(q) A Reorganization Plan shall have become effective in the Case
pursuant to an order of the Bankruptcy Court, or distributions shall have
commenced under a Reorganization Plan, provided that such event shall not be a
Termination Event if the Liquidity Banks extend the current scheduled
termination date of their respective commitments under Section 12 of the
Liquidity Agreement; or
(r) The Bankruptcy Court shall have entered an order in the Case
appointing a trustee under Section 1104 of the Bankruptcy Code; or
(s) The Bankruptcy Court shall have entered an order in the Case
appointing an examiner with enlarged powers (powers beyond those set forth in
Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1104(b) of the
Bankruptcy Code; or
(t) The Bankruptcy Court shall have entered an order in the Case
reversing, modifying, amending, staying for a period in excess of ten days,
supplementing, vacating or rescinding the Order; or
(u) The DIP Loan Agreement shall cease to be in full force and effect
or the commitments thereunder shall have been terminated; or
(v) Other than with respect to the Case, the Servicer or any
Originator shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding (other than
the Case) shall be instituted by or against the Servicer or any Originator
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 30 days, or
any of the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of its
property) shall occur; or the Servicer or any Originator shall take any
corporate action (other than the corporate action taking with respect to the
Case) to authorize any of the actions set forth above in this paragraph (v)."
III. SECTION Miscellaneous.
A. Performance Guaranty. Imperial acknowledges and reaffirms all of its
obligations under the Performance Guaranty contained in Section 3.2 of the
Agreement.
B. Representations and Warranties. Each of the Seller and the Servicer
hereby represents and warrants to the Agent and the Purchaser as follows:
(i) Representations and Warranties. The representations
and warranties of such Person contained in Exhibit III to the
Agreement (as modified to reflect the filing of the Case and the
entry of the Order by the Bankruptcy Court) are true and correct as
of the date hereof (unless stated to relate solely to an earlier
date, in which case such representations and warranties were true
and correct as of such earlier date).
(ii) Enforceability. The execution and delivery by such
Person of this Amendment, and the performance of its obligations
under this Amendment and the Agreement, as amended hereby, are
within its corporate powers and have been duly authorized by all
necessary corporate action on its part. This Amendment and the
Agreement, as amended hereby, are its valid and legally binding
obligations, enforceable in accordance with its terms.
(iii) Termination Event. No Termination Event or
Unmatured Termination Event has occurred and is continuing.
C. Effectiveness. This Amendment shall become effective on the date when the
following condition shall have been satisfied:
(i) the Agent shall have received (1) 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, (2) an original counterpart (or
counterparts) of Amendment No. 1 to the Purchase and Contribution Agreement,
executed and delivered by each of the parties thereto, or other evidence
satisfactory to the Agent of the execution and delivery of Amendment No. 1 to
the Purchase and Contribution Agreement by such parties, (3) the Order being
obtained from the Bankruptcy Court, (4) a written statement by S&P and ▇▇▇▇▇'▇
that this Amendment will not result in a downgrade or withdrawal of the rating
of the Notes and (5) such other documents and instruments as the Agent may
reasonably request, and
(ii) 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.
D. 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 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.
E. 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.
F. 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.
G. 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).
H. 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.
I. 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.
J. 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.
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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
IMPERIAL DISTRIBUTING, INC., as Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
IMPERIAL SUGAR COMPANY,
as Performance Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
FAIRWAY FINANCE CORPORATION, as Purchaser
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP., as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director