Stipulation and Amendment to Joint Plan of Reorganization Between Imperial Sugar Company Debtors and Wells Fargo Bank (Texas), N.A.

Summary

This agreement is between the Imperial Sugar Company and its affiliated debtors and Wells Fargo Bank (Texas), N.A. It resolves Wells Fargo's objection to the debtors' joint plan of reorganization in their Chapter 11 bankruptcy case. The agreement amends the plan to specify the treatment of Wells Fargo's secured claim, including a maximum claim amount of $7 million, payment terms, and the issuance of a new note. Upon court approval and payment, Wells Fargo will withdraw its objection and support the plan. Other plan terms remain unchanged.

EX-4.2 6 dex42.txt STIPULATION WITH RESPECT TO CONFIRMATION EXHIBIT 4.2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: IMPERIAL DISTRIBUTING, INC., IMPERIAL HOLLY (S) CORPORATION, IMPERIAL-SAVANNAH, L.P., (S) IMPERIAL SUGAR COMPANY, IMPERIAL SWEETENER (S) Chapter 11 DISTRIBUTORS, INC., BIOMASS CORPORATION, (S) Case Nos. 01-00140 CROWN EXPRESS, INC., DIAMOND CRYSTAL (S) through 01-00176(SLR) BRANDS, INC., DIAMOND CRYSTAL BRANDS, L.P., (S) (Jointly Administered) DIAMOND CRYSTAL HOLDINGS, INC., DIAMOND (S) CRYSTAL SPECIALTY FOODS, INC., DIXIE CRYSTAL (S) FOODSERVICE, INC., DSLT HOLDING COMPANY (S) FOODCARRIER, INC., FORT BEND UTILITIES (S) COMPANY, GREAT LAKES SUGAR COMPANY, HOLLY (S) FINANCE COMPANY, HOLLY NORTHWEST (S) COMPANY, HOLLY SUGAR CORPORATION, HSC (S) EXPORT CORP., ICUBE, INC., KING PACKAGING (S) COMPANY, INC., LIMESTONE PRODUCTS COMPANY (S) MENU MAGIC FOODS, INC., MICHIGAN SUGAR (S) COMPANY, PHOENIX PACKAGING CORPORATION (S) RAGUS HOLDINGS, INC., SAVANNAH FOODS & (S) INDUSTRIES, INC., SAVANNAH FOODS INDUSTRIAL, (S) INC., SAVANNAH INTERNATIONAL COMPANY, (S) SAVANNAH INVESTMENT COMPANY, SAVANNAH (S) MOLASSES & SPECIALTIES COMPANY, SAVANNAH (S) PACKAGING COMPANY, SAVANNAH SUGAR (S) REFINING CORPORATION, SAVANNAH TOTAL (S) INVERT COMPANY, WHOLESOME SWEETENERS (S) GROUP, LTD., and WHOLESOME SWEETENERS, L.L.C. (S) Debtors STIPULATION WITH RESPECT TO CONFIRMATION OBJECTION OF WELLS FARGO BANK (TEXAS), N.A. AND AMENDMENT TO DEBTORS' SECOND AMENDED AND RESTATED JOINT PLAN OF REORGANIZATION DATED JUNE 5, 2001 ------------------ Pursuant to the stipulation of the debtors in the above-captioned case (collectively the "Debtors) and Wells Fargo Bank (Texas), N.A. ("Wells Fargo"), as evidenced by the signatures of counsel below, the Debtors submit this Amendment (the "Amendment") to Debtors' Second Amended and Restated Joint Plan of Reorganization dated June 5, 2001 (the "Plan") in resolution of Wells Fargo's objection to confirmation of the Plan. The parties stipulate and agree that, upon court approval of a plan incorporating the terms hereof, the objection of Wells Fargo to the Plan shall be deemed irrevocably withdrawn and that Wells Fargo shall request permission from the Court to allow it to change its vote against the Plan into a vote in favor of the Plan. PREAMBLE WHEREAS Wells Fargo as the sole member of Class 2D under the Plan agrees to the treatment provided by these amendments. NOW, THEREFORE, Wells Fargo agrees and stipulates to its treatment as set forth below. Except as otherwise expressly provided in this Amendment, all other terms and conditions of the Plan shall remain as stated therein. AMENDMENTS 1. Treatment of Wells Fargo Secured Claim. -------------------------------------- (a) Immediately after the definition of "Fort Bend" in Article 1.72 of the Plan, there shall be inserted the following new definition of "Funding Amount," after which all subsequent numbered portions of Article 1 of the Plan shall be consecutively renumbered: 1.73 "Funding Amount" means, with respect to Wells Fargo, the greater of (a) seven million dollars ($7,000,000) less the sum on the Effective Date of amounts due Wells Fargo under (i) the Senior Credit Agreement, including the Revolving Credit Facility and Tranche A Term Loans and (ii) the DIP Facility (excluding, however, unfunded letters of credit issued under the Senior Credit Agreement or the DIP Facility) or (b) zero. (b) Immediately after the definition of "Warrant Agreement" in Article 1.163 of the Plan (as previously renumbered), there shall be inserted the following new definitions of "Wells Fargo" and "Wells Fargo Secured Claim," after which all subsequent numbered portions of Article 1 of the Plan shall be consecutively renumbered: 1.164 "Wells Fargo" means Wells Fargo Bank (Texas), N.A. 1.165 "Wells Fargo Secured Claim" means the Secured Claim of Wells Fargo under the Senior Credit Agreement, including Tranche A Term Loans and advances under the Revolving Credit Facility, and reasonable attorneys fees and expenses incurred by Wells Fargo in connection with the Reorganization Cases; the unpaid portion of the Wells Fargo secured 2 claims shall under no circumstances exceed $7 million as of the Effective Date. (c) Article 3.3(5) of the Plan shall be deleted in its entirety and replaced with the following: (5) Class 2D - Allowed Wells Fargo Secured Claim. Class 2D consists of the Allowed Wells Fargo Secured Claim. (d) Article 4.2(5) of the Plan shall be deleted in its entirety and replaced with the following: (5) Class 2D - Allowed Wells Fargo Secured Claim. (a) The Allowed Wells Fargo Secured Claim shall be satisfied in full as follows: (i) On the closing date under the Amended Senior Credit Facility, Wells Fargo shall fund the Funding Amount. Except as provided in the foregoing sentence and subject to the true-up mechanism described in Section 2.1(d) of the DIP Facility and the related definitions, all amounts previously paid to Wells Fargo shall be indefeasibly vested in Wells Fargo. (ii) Upon payment of the Funding Amount, Wells Fargo shall be released from its obligations under unfunded letters of credit issued under the Senior Credit Agreement the DIP Facility; and (iii) Wells Fargo shall be issued a note under Tranche A of the term loan facility in the Amended Senior Credit Agreement in the original principal amount of seven million dollars ($7,000,000) and shall be bound by, and entitled to all of the same rights and benefits as members of Class 2A under, the Amended Senior Credit Agreement including but not limited to, interest, fees, and voting based on the $7 million figure. (b) Upon occurrence of the Effective Date and payment of the Funding Amount, the commitment of Wells Fargo with respect to the revolving credit line under the Amended Senior Credit Agreement shall be reduced simultaneously to zero dollars ($0.00). The Allowed Wells Fargo Secured Claim shall be satisfied solely through the refinancing provided under this provision. 3 (c) Attorneys fees and expenses incurred by Wells Fargo in the Reorganization Cases shall not be paid as in accordance with subpart (a), but will be paid in full in Cash in accordance with the terms of the DIP Facility. (d) Article 1.69 of the Plan shall be deleted in its entirety and replaced with the following: "Exonerated Parties" means the Debtors, Reorganized Debtors, Creditors Committee, Indenture Trustee, Ad Hoc Bondholder Committee, Harris Trust & Savings Bank, the Bank Group, the Agent, the DIP Lenders, the DIP Agent, Disbursing Agent, and Ad Hoc SERP/DC Committee as well as each of their respective stockholders, directors, officers, agents, employees, members, attorneys, accountants, financial advisors, and representatives, or anyone or more of the foregoing. 2. Conforming Amendments. --------------------- (a) Article 1.112 and Article 1.113 of the Plan shall be deleted in their entirety and replaced with the following: 1.112 [Intentionally Omitted] 1.113 [Intentionally Omitted] (b) Annex 5 shall be deleted from the Plan and replaced with a notation "Annex 5 - Intentionally Omitted," Dated: August 3, 2001 Wilmington, Delaware IMPERIAL SUGAR COMPANY By: /s/ James C. Kempner ---------------------- James C. Kempner President and Chief Executive Officer IMPERIAL DISTRIBUTING, INC. By: /s/ W. F. Schwer ---------------------- William F. Schwer President 4 IMPERIAL HOLLY CORPORATION By: /s/ W. F. Schwer ---------------------- William F. Schwer Senior Vice President IMPERIAL-SAVANNAH, L.P. By: /s/ W. F. Schwer ---------------------- William F. Schwer as Senior Vice President of Savannah Molasses and Specialties Company, its general partner IMPERIAL SWEETENER DISTRIBUTORS, INC. By: /s/ W. F. Schwer ---------------------- William F. Schwer Senior Vice President BIOMASS CORPORATION By: /s/ W. F. Schwer ----------------------- William F. Schwer President CROWN EXPRESS, INC. By: /s/ W. F. Schwer ---------------------- William F. Schwer President DIAMOND CRYSTAL BRANDS, INC. By: /s/ W. F. Schwer ---------------------- William F. Schwer Senior Vice President DIAMOND CRYSTAL BRANDS, L.P. By: /s/ W. F. Schwer ---------------------- William F. Schwer as Senior Vice President of Diamond Crystal Holdings Inc., its general partner 5 DIAMOND CRYSTAL HOLDINGS, INC. By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President DIAMOND CRYSTAL SPECIALTY FOODS, INC. By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President DIXIE CRYSTAL FOODSERVICE, INC. By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President DSLT HOLDING COMPANY By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President FOOD CARRIER, INC. By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President FORT BEND UTILITIES COMPANY By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President GREAT LAKES SUGAR COMPANY By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President 6 HOLLY FINANCE COMPANY By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President HOLLY NORTHWEST COMPANY By: /s/ W. F. Schwer ----------------- William F. Schwer President HOLLY SUGAR CORPORATION By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President and General HSC EXPORT CORP. By: /s/ W. F. Schwer ----------------- William F. Schwer Vice President ICUBE, INC. By: /s/ W. F. Schwer ----------------- William F. Schwer President KING PACKAGING COMPANY, INC. By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President LIMESTONE PRODUCTS COMPANY, INC. By: /s/ W. F. Schwer ----------------- William F. Schwer President 7 MENU MAGIC FOODS, INC. By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President MICHIGAN SUGAR COMPANY By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President PHOENIX PACKAGING CORPORATION By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President RAGUS HOLDINGS, INC. By: /s/ W. F. Schwer ----------------- William F. Schwer President SAVANNAH FOODS & INDUSTRIES, INC. By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President and General Counsel SAVANNAH FOODS INDUSTRIAL, INC. By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President SAVANNAH INTERNATIONAL COMPANY By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President 8 SAVANNAH INVESTMENT COMPANY By: /s/ W. F. Schwer ----------------- William F. Schwer President SAVANNAH MOLASSES & SPECIALTIES COMPANY By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President SAVANNAH PACKAGING COMPANY By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President SAVANNAH SUGAR REFINING CORPORATION By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President SAVANNAH TOTAL INVERT COMPANY By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President WHOLESOME SWEETENERS GROUP, LTD. By: /s/ W. F. Schwer ----------------- William F. Schwer as Senior Vice President of Wholesome Sweeteners LLC, its general partner 9 WHOLESOME SWEETENERS L.L.C. By: /s/ W. F. Schwer ----------------- William F. Schwer Senior Vice President Stipulated and Agreed: /s/ Jack L. Kinzie - -------------------- Jack L. Kinzie Texas State Bar No. 11492130 BAKER BOTTS L.L.P. 2001 Ross Avenue Dallas, Texas ###-###-#### ###-###-#### (telephone) 214 ###-###-#### (fax) COUNSEL FOR THE DEBTORS /s/ James Donnell - -------------------- James Donnell Texas State Bar No. 06981300 ANDERWS & KURTH L.L.P. 600 Travis Street, Suite 4200 Houston, Texas 77002 ###-###-#### (telephone) 713 ###-###-#### (fax) COUNSEL FOR WELL FARGO BANK (TEXAS), N.A. 10