EX-99.2 4 dex992.txt RECEIVABLES FUNDING AGREEMENT EXHIBIT 2. EXECUTION COPY AMENDMENT NO. 1 Dated as of February 6, 2002 to RECEIVABLES FUNDING AGREEMENT Dated as of August 28, 2001 THIS AMENDMENT NO. 1 (this "Amendment") is entered into as of February 6, 2002 by and among IMPERIAL SUGAR COMPANY, a Texas corporation ("Imperial"), each of the Originators party hereto (the "Originators"), IMPERIAL DISTRIBUTING, INC., a Delaware corporation (the "Servicer"), IMPERIAL SUGAR SECURITIZATION, LLC, a Delaware limited liability company (the "Borrower"), and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as a lender and as administrative agent for the lenders (in such capacity, the "Administrative Agent"). Capitalized terms used in this Amendment which are not otherwise defined herein shall have the meanings given such terms in Annex X to the Funding Agreement referred to below. RECITALS: WHEREAS, the Originators, Imperial and the Borrower are parties to a Receivables Sale Agreement dated as of August 28, 2001 (as amended, restated, supplemented or otherwise modified from time to time, the "Receivables Sale Agreement"); WHEREAS, the Borrower, Imperial, the Servicer, the financial institutions party thereto as lenders (the "Lenders") and the Administrative Agent are parties to a Receivables Funding Agreement dated as of August 28, 2001 (as amended, restated, supplemented or otherwise modified from time to time, the "Funding Agreement"); WHEREAS, many of the defined terms used in the Receivables Sale Agreement and the Funding Agreement are set forth in Annex X attached thereto ("Annex X"); and WHEREAS, the Originators, the Borrower, the Servicer, Imperial, the Lenders and the Administrative Agent have agreed to amend Annex Z on the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Originators, the Borrower, the Servicer, Imperial, the Lenders and the Administrative Agent hereby agree as follows. 1. Amendment to Annex Z. Effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 2 below, Annex Z to the Funding Agreement is hereby deleted in its entirety and replaced with the Special Concentration Percentages attached hereto as Exhibit 1. 2. Conditions of Effectiveness of this Amendment. This Amendment shall become effective as of the date hereof (the "Effective Date") when, and only when, the Administrative Agent shall have received each of the following: (a) counterparts of this Amendment duly executed by the Originators, the Borrower, the Servicer, Imperial, the Lenders and the Administrative Agent; and (b) such other documents, instruments and agreements as the Administrative Agent may reasonably request. 3. Representations and Warranties. 3.1 Upon the effectiveness of this Amendment, the Originators, the Borrower, the Servicer and Imperial each (a) hereby reaffirms in all material respects all covenants, representations and warranties made by it in the Receivables Sale Agreement, the Funding Agreement and each other Related Document to the extent the same are not amended hereby and except to the extent the same expressly relates solely to an earlier date, (b) agrees that all such covenants, representations and warranties shall be deemed to have been re-made as of the Effective Date of this Amendment and (c) represents and warrants that, as of the Effective Date of this Amendment and after giving effect hereto, no Termination Event, Incipient Termination Event, Event of Servicer Termination or Incipient Servicer Termination Event has occurred and is continuing. 3.2 The Originators, the Borrower, the Servicer and Imperial hereby represents and warrants that this Amendment, the Receivables Sale Agreement and the Funding Agreement, as amended hereby, constitute legal, valid and binding obligations of such Person (to the extent a party thereto) and are enforceable against such Person in accordance with their respective terms. 4. Reference to and Effect on Related Documents. 4.1 Upon the effectiveness of this Amendment pursuant to Section 2 hereof, on and after the Effective Date, each reference to the Receivables Sale Agreement and the Funding Agreement in any of the Related Documents shall mean and be a reference to the Receivables Sale Agreement or the Funding Agreement, as the case may be, as amended hereby. 4.2 Except as specifically set forth above, the Receivables Sale Agreement and the Funding 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. 4.3 The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the 2 Borrower, the Lenders or the Administrative Agent, nor constitute a waiver of any provision of any of the Related Documents, or any other documents, instruments and agreements executed and/or delivered in connection therewith. 5. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose. 6. Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment. 7. Entire Agreement. This Amendment, taken together with the Receivables Sale Agreement, the Funding Agreement and all of the other Related Documents, embodies the entire agreement and understanding of the parties hereto and supersedes all prior agreements and understandings, written and oral, relating to the subject matter hereof. 8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES). 9. No Course of Dealing. The Lenders and the Administrative Agent have entered into this Amendment on the express understanding with the Borrower, the Originators, Imperial and the Servicer that in entering into this Amendment the Lenders and the Administrative Agent are not establishing any course of dealing with the Borrower, the Originators, Imperial or the Servicer. The rights of the Lenders and the Administrative Agent to require strict performance with all the terms and conditions of the Receivables Sale Agreement and the Funding Agreement as amended by this Amendment and the other Related Documents shall not in any way be impaired by the execution of this Amendment. Neither the Lenders nor the Administrative Agent shall be obligated in any manner to execute any further amendments or waivers, and if such waivers or amendments are requested in the future, assuming the terms and conditions thereof are acceptable to them, the Lenders and the Administrative Agent may require the payment of fees in connection therewith. 3 IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed as of the day and year first above written. IMPERIAL SUGAR SECURITIZATION, LLC, as the Borrower /s/ Karen L. Mercer By _____________________________ Name: Karen L. Mercer Title: Treasurer IMPERIAL DISTRIBUTING, INC., as Servicer /s/ Karen L. Mercer By _____________________________ Name: Karen L. Mercer Title: Treasurer GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender and as Administrative Agent /s/ Craig Winslow By _____________________________ Name: Craig Winslow Title: Duly Authorized Signatory Signature Page to Amendment No. 1