-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G97I11rBJr5DUR/5jo2C+yeY+0il+6VjBb53Sd67N0FP5CwOxNXpMy4/CAI3WxC1 tkrQuCBuNTDk88L6ZoiWEw== 0001021408-01-506587.txt : 20010913 0001021408-01-506587.hdr.sgml : 20010913 ACCESSION NUMBER: 0001021408-01-506587 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 20010829 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20010912 FILER: COMPANY DATA: COMPANY CONFORMED NAME: IMPERIAL SUGAR CO /NEW/ CENTRAL INDEX KEY: 0000831327 STANDARD INDUSTRIAL CLASSIFICATION: SUGAR & CONFECTIONERY PRODUCTS [2060] IRS NUMBER: 740704500 STATE OF INCORPORATION: TX FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-10307 FILM NUMBER: 1735915 BUSINESS ADDRESS: STREET 1: ONE IMPERIAL SQ STE 200 STREET 2: P O BOX 9 CITY: SUGAR LAND STATE: TX ZIP: 77487 BUSINESS PHONE: 2814919181 FORMER COMPANY: FORMER CONFORMED NAME: IMPERIAL HOLLY CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: IMPERIAL SUGAR CO /TX/ DATE OF NAME CHANGE: 19880606 8-K 1 d8k.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): August 29, 2001 IMPERIAL SUGAR COMPANY (Exact name of registrant as specified in its charter) TEXAS 1-10307 74-0704500 (State or other jurisdiction (Commission File Number) (IRS Employer of incorporation) Identification No.) ONE IMPERIAL SQUARE P. O. BOX 9 SUGAR LAND, TEXAS 77487 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (281) 491-9181 ITEM 5. OTHER EVENTS. On August 29, 2001, the Second Amended and Restated Joint Plan of Reorganization of Imperial Sugar Company (the "Company") became effective and the Company emerged from bankruptcy. As previously reported in the Company's quarterly report on Form 10-Q, the U.S. Bankruptcy Court for the District of Delaware confirmed the Plan on August 7, 2001. In accordance with the Plan, the Company's former common stock was cancelled and shareholders will receive 200,000 shares (2%) of the restructured entity's common stock and 7-year warrants to purchase 1,111,111 additional shares, representing 10% of the restructured entity on a diluted basis. The exercise price of the warrants is expected to be set within six months. In conjunction with its emergence, the Company entered into a $256.1 million senior secured credit facility and a $110 million accounts receivable securitization facility. On August 29, 2001, the Company issued a press release in respect of the foregoing. A copy of the press release is attached hereto as an exhibit and incorporated herein by reference. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits 3.1 Amended and Restated Articles of Incorporation. 3.2 Amended and Restated Bylaws. 4.1 Second Amended and Restated Joint Plan of Reorganization. 4.2 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. 4.3 Stipulation Regarding Confirmation Objection of Missouri Department of Revenue and Amendment to Debtors' Second Amended and Restated Joint Plan of Reorganization dated June 5, 2001. 4.4 Receivables Sale Agreement dated August 28, 2001, by and among each of the Originators Signatory thereto from Time to Time, Imperial Sugar Company and Imperial Sugar Securitization, LLC. 4.5 Receivables Funding Agreement as of August 28, 2001 by and among Imperial Sugar Securitization, LLC, as Borrower, Imperial Distributing, Inc., as Servicer, the Financial Institutions Signatory thereto from Time to Time, as Lenders, and General Electric Capital Corporation, as a Lender and as Administrative Agent. 4.6 Warrant Agreement dated as of August 28, 2001. 99.1 Press Release dated August 29, 2001. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. IMPERIAL SUGAR COMPANY Date: September 12, 2001 By: /s/ H. P. Mechler --------------------------- Name: H. P. Mechler Its: Vice President EX-3.1 3 dex31.txt AMENDED AND RESTATED ARTICLES OF INCORPORATION Exhibit 3.1 AMENDED AND RESTATED ARTICLES OF INCORPORATION of IMPERIAL SUGAR COMPANY SECTION 1 Imperial Sugar Company, a Texas corporation, pursuant to the provisions of Articles 4.07 and 4.14 of the Texas Business Corporation Act (the "TBCA"), hereby adopts these Amended and Restated Articles of Incorporation of the corporation (the "Amended and Restated Articles of Incorporation"), which accurately copies the Articles of Incorporation of the corporation and all amendments thereto that are in effect to date (the "Original Articles") and as further amended by these Amended and Restated Articles of Incorporation as hereinafter set forth and which contain no other change in any provision thereof. SECTION 2 Articles III, IV, VI, VII and IX of the Original Articles are hereby amended and restated and Article X of the Original Articles is hereby deleted by these Amended and Restated Articles of Incorporation. SECTION 3 Each of the foregoing amendments to the Original Articles was made in conformity with the provisions of the TBCA. These Amended and Restated Articles of Incorporation as set forth on Exhibit A hereto were approved by the United --------- States Bankruptcy Court for the District of Delaware on August 7, 2001 pursuant to In re Imperial Distributing, Inc., et al., Case Nos. 01-00140 through 01- 00176 (SLR) (Jointly Administered). The United States Bankruptcy Court for the District of Delaware had jurisdiction of the case under federal statute. SECTION 4 The Original Articles are hereby superseded by the Amended and Restated Articles of Incorporation attached hereto as Exhibit A which accurately --------- copy the entire text thereof and incorporate the amendments referred to above. IN WITNESS WHEREOF, these Amended and Restated Articles of Incorporation have been executed as of August 28, 2001. IMPERIAL SUGAR COMPANY By: /s/ James C. Kempner ---------------------------- James C. Kempner, President Exhibit A --------- AMENDED AND RESTATED ARTICLES OF INCORPORATION of IMPERIAL SUGAR COMPANY ARTICLE I The name of this corporation is Imperial Sugar Company. ARTICLE II The period of the corporation's duration is perpetual. ARTICLE III The purpose or purposes for which the corporation is organized is the transaction of all lawful business for which corporations may be organized under the Texas Business Corporation Act as existing and may be amended from time to time. ARTICLE IV The aggregate number of shares which the corporation shall have the authority to issue is 55,000,000 shares, consisting of 50,000,000 shares of Common Stock, without par value and 5,000,000 shares of Preferred Stock, without par value. The corporation does not have the power to issue any nonvoting stock. The descriptions are of the different classes of capital stock of the corporation and the preferences, designations, relative rights, privileges and powers, and the restrictions, limitations and qualifications thereof, of said classes of stock are as follows: Division A - Preferred Stock The shares of Preferred Stock may be divided into and issued in one or more series, the relative rights and preferences of which series may vary in any and all respects, except that all such shares shall carry the right to vote. The board of directors of the corporation is hereby vested with the authority to establish series of Preferred Stock by fixing and determining all the relative rights and preferences of the shares of any series so established, to the extent not provided for in these articles of incorporation or any amendment hereto, and with the authority to increase or decrease the number of shares within each such series; provided, however, that the board of directors may not decrease the number of shares within a series below the number of shares within such series that is then issued. The authority of the board of directors with respect to each such series shall include, but not be limited to, determination of the following: (1) the distinctive designation and number of shares of that series; (2) the rate of dividend (or the method of calculating thereof) payable with respect to shares of that series, the dates, terms and other conditions upon which such dividends shall be payable, and the relative rights of priority of such dividends to dividends payable on any other class or series of capital stock of the corporation; (3) the nature of the dividend payable with respect to shares of that series as cumulative, noncumulative or partially cumulative, and, if cumulative or partially cumulative, from which date or dates and under what circumstances; (4) whether shares of that series shall be subject to redemption, and, if made subject to redemption, the times, prices, rates, adjustments and other terms and conditions of such redemption (including the manner of selecting shares of that series for redemption if fewer than all shares of such series are to be redeemed); (5) the rights of the holders of shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the corporation (which rights may be different if such action is voluntary than if it is involuntary), including the relative rights of priority in such event as to the rights of the holders of any other class or series of capital stock of the corporation; (6) the terms, amounts, and other conditions of any sinking or similar purchase or other fund provided for the purchase or redemption of shares of that series; (7) whether shares of that series shall be convertible into or exchangeable for shares of capital stock or other securities of the corporation or of any other corporation or entity, and, if provision be made for conversion or exchange, the times, prices, rates, adjustments and other terms and conditions of such conversion or exchange; (8) the extent, if any, to which the holders or shares of that series shall be entitled (in addition to any voting rights provided by law) to vote as a class or otherwise with respect to the election of directors or otherwise; (9) the restrictions and conditions, if any, upon the issue or reissue of any additional Preferred Stock ranking on a parity with or prior to shares of that series as to dividends or upon liquidation, dissolution or winding up; (10) any other repurchase obligations of the corporation, subject to any limitations of applicable law; and (11) any other designations, preferences, limitations or relative rights of shares of that series. Any of the designations, preferences, limitations or relative rights (including the voting rights) of any series of Preferred Stock may be dependent on facts ascertainable outside these articles of incorporation. Division B - Common Stock 1. Dividends. Dividends may be paid on the Common Stock out of any assets of the corporation available for such dividends subject to the rights of all outstanding shares of capital stock ranking senior to the Common Stock in respect of dividends. 2. Distribution of Assets. In the event of any liquidation, dissolution or winding up of the corporation, after there shall have been paid to or set aside for the holders of capital stock ranking senior to the Common Stock in respect of rights upon liquidation, dissolution or winding up the full preferential amounts to which they are respectively entitled, the holders of the Common Stock shall be entitled to receive, pro rata, all of the remaining assets of the corporation available for distribution to its shareholders. 3. Voting Rights. The holders of Common Stock shall be entitled to one vote per share for the election of directors and for all other purposes upon which such holders are entitled to vote. Division C - General 1. No Preemptive Rights. No shareholder of the corporation shall by reason of his holding shares of any class have any preemptive or preferential right to acquire or subscribe for any additional, unissued or treasury shares of any class of the corporation now or hereafter to be authorized, or any notes, debentures, bonds or other securities convertible into or carrying any right, option or warrant to subscribe to or acquire shares of any class now or hereafter to be authorized, whether or not the issuance of any such shares, or such notes, debentures, bonds or other securities, would adversely affect the dividends or voting or other rights of such shareholder, and the board of directors may issue or authorize the issuance of shares of any class, or any notes, debentures, bonds or other securities convertible into or carrying rights, options or warrants to subscribe to or acquire shares of any class, without offering any such shares of any class, either in whole or in part, to the existing shareholders of any class. 2. Share Dividends. Subject to any restrictions in favor of any series of Preferred Stock, the corporation may pay a share dividend in shares of any class or series of capital stock of the corporation to the holders of shares of any class or series of capital stock of the corporation. ARTICLE V The corporation will not commence business until it has received for the issuance of its shares consideration of the value of One Thousand Dollars ($1,000), consisting of money, labor done or property actually received. ARTICLE VI The street address of the corporation's current registered office is One Imperial Square, Suite 200, Sugar Land, Texas 77487, and the name of its registered agent at such address is Roy L. Cordes. ARTICLE VII The number of directors of the corporation shall be such number not less than seven nor more than fourteen as shall be fixed by, or in the manner provided in, the by-laws of the corporation. From and after the annual meeting of shareholders in 2002, the directors of the corporation shall be divided into three classes, designated Class I, Class II, and Class III, each class to be as nearly equal as possible. The initial terms of office of the directors of Class I shall expire at the annual meeting of shareholders in 2003, of Class II shall expire at the annual meeting of shareholders in 2004, and of Class III shall expire at the annual meeting of shareholders in 2005. At each annual meeting, the number of directors equal to the number constituting the class whose term expires at the time of such meeting shall be elected to hold office until the third succeeding annual meeting. No director may be removed by the shareholders except for cause. Directors of the corporation shall be elected by majority vote. Cumulative voting is prohibited. The act of shareholders to approve an amendment to this Article VII shall be the affirmative vote of a majority of the shares entitled to vote on the matter, rather than the vote otherwise required by the Texas Business Corporation Act. ARTICLE VIII Notwithstanding any other provision of these articles of incorporation, the Texas Business Corporation Act or the by-laws of the corporation, the corporation shall not have the power to purchase or otherwise acquire for value, in any single transaction or series of related transactions occurring within a period of twelve months, shares of its capital stock representing in excess of 8% of any class unless one of the following conditions has been satisfied: (i) The purchase or acquisition has been approved by the holders of a majority of the shares of such class that will remain outstanding; (ii) The purchase or acquisition is in accordance with an offer made to the holders of all outstanding shares of such class; or (iii) Solely in the case of stock ranking prior to the Common Stock of the corporation in respect of dividends or the distribution of assets upon liquidation, such purchase or acquisition is in accordance with mandatory redemption provisions expressly applicable to such stock. ARTICLE IX A director of the corporation shall not be liable to the corporation or its shareholders for monetary damages for an act or omission in the director's capacity as a director, except that this article does not eliminate or limit the liability of a director for: (1) a breach of a director's duty of loyalty to the corporation or its shareholders; (2) an act or omission not in good faith or that involves intentional misconduct or a knowing violation of the law; (3) a transaction from which a director received an improper benefit, whether or not the benefit resulted from an action taken within the scope of the director's office; (4) an act or omission for which the liability of a director is expressly provided for by statute; or (5) an act related to an unlawful stock repurchase or payment of a dividend. Any repeal or modification of this Article IX shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification. EX-3.2 4 dex32.txt AMENDED AND RESTATED BYLAWS EXHIBIT 3.2 ANNEX 4 AMENDED AND RESTATED BYLAWS OF IMPERIAL SUGAR COMPANY 1 BY-LAWS OF IMPERIAL SUGAR COMPANY ARTICLE I. MEETINGS OF STOCKHOLDERS Section 1. Place of Meetings. All meetings of stockholders shall be held at the registered office of the Company in Sugar Land, Texas, or at such other place within or without the State of Texas as may be designated by the Board of Directors, the President, or any other officer authorized to fix the place of the meeting by the Board of Directors, or the officer or person calling the meeting. Section 2. Annual Meeting. The annual meeting of stockholders shall be held at such date and time as may be designated by the Board of Directors and stated in the notice of the meeting. Section 3. Special Meetings. Special meetings of the stockholders may be called by the Board of Directors, the Chairman of the Board, the President or any Vice-President or Secretary or any Director or by the holders of not less than one-tenth of all the shares outstanding and entitled to vote at such meetings. Section 4. Notice of Meeting. Notice of all meetings shall be given as may be required by law, by the Secretary or an Assistant Secretary, to be mailed or delivered to the stockholders at not less than ten nor more than sixty days before such meetings. Waiver by a stockholder in writing, signed by him whether before or after the meeting, shall be equivalent to the giving of such notice as shall attendance by a stockholder at a stockholders meeting, whether in person or by proxy. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the stockholder at his address as it appears on the stock transfer books of the Company, with postage thereon prepaid. Any notice required to be given to any stockholder under any provision of the Texas Business Corporation Act or the Amended and Restated Articles of Incorporation or these by-laws need not be given to a stockholder if (1) notice of two consecutive annual meetings and all notices of meetings held during the period between those annual meetings, if any, or (2) all (but in no event less than two) payments (if sent by first class mail) of distributions or interest on securities during a 12-month period have been mailed to that person, addressed at his address as shown on the records of the Company, and have been returned undeliverable. Any action or meeting taken or held without notice to such person shall have the same force and effect as if the notice had been duly given. If such person delivers to the Company a written notice setting forth his then current address, the requirement that notice be given to that person shall be reinstated. Section 5. Voting at Meetings. Each holder of shares of stock of the Company shall be entitled to one vote for each share standing in his name on the books of the Company, either in person or by proxy executed in writing by him or by his duly authorized attorney in fact. Section 6. Quorum. A majority of the shares of stock of the Company, represented in person or by proxy, shall constitute a quorum at a meeting of the stockholders. Any meeting may be adjourned from time to time by a majority of the shares so present, whether a quorum be present or not. Section 7. Officers. The Chairman of the Board, or in his absence, the Vice Chairman, or in his absence, the President, shall preside at, and the Secretary shall keep the records of, each meeting of stockholders. In the absence of any such officer, his duties shall be performed by such person as may be appointed by the meeting. Section 8. Conduct of Meetings. The chairman of a meeting of stockholders shall have the power to appoint inspectors of election and to establish and interpret rules for the conduct of the meeting. 2 ARTICLE II. DIRECTORS Section 1. Number and Tenure. The affairs of the Company shall be managed by a board of directors consisting of such number of directors not less than seven nor more than fourteen as may be fixed by resolution of the Board of Directors from time to time. The Board of Directors shall be divided into three classes, designated Class I, Class II, and Class III, each class to be as nearly equal as possible. At each annual meeting the number of directors equal to the number constituting the classes whose term expires at the time of such meeting shall be elected to hold office until the third succeeding annual meeting. The directors shall be elected by the stockholders annually and shall hold office until the next annual meeting of the stockholders and until their successors are elected and have qualified. A director need not be a stockholder. Section 2. Vacancies. Any vacancy occurring in the Board of Directors or any directorship to be filled by reason of an increase in the number of directors may be filled by election at an annual or special meeting of stockholders called for the purpose or by the affirmative vote of the majority of the remaining directors, though less than a quorum of the entire Board; provided, however, that any directorship to be filled by the Board of Directors by reason of an increase in the number of directors may be filled for a term of office continuing only until the next election of one or more directors by the stockholders; and provided, further, that the Board of Directors may not fill more than two directorships created by reason of an increase in the number of directors during the period between any two successive annual meetings of stockholders. Subject to the foregoing, a director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office. No director may be removed by the stockholders except for cause. Section 3. Place of Meeting. Meetings of the Board of Directors may be held either within or without the State of Texas, at wherever place is specified by the officer calling the meeting. In the absence of other designation, the meeting shall be held at the registered office of the Company in Sugar Land, Texas. Section 4. Annual Meetings. The Board of Directors shall meet each year immediately after the annual meeting of the stockholders, at the place of such meeting, for the election of officers and consideration of any other business that may be properly brought before the meeting. No notice of any kind of such annual meeting to either old or new members of the Board of Directors shall be necessary. Section 5. Other Meetings. Other meetings of the Board of Directors may be held at such times as may be fixed by the Board of Directors or at any time upon the call of the President or a Vice-President or Secretary or of any director of the Company. Notice shall be sent by mail or telegram to the last known address of each director at least one day before the meeting. Notice of the time, place and purpose of the meeting may be waived in writing before or after such meeting. Attendance of a director at such meeting shall constitute a waiver of notice thereof. Neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors need by specified in the notice or waiver of notice of such meeting. Section 6. Quorum. A majority of the number of directors fixed by the by- laws shall constitute a quorum for the transaction of business. The action of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. Any meeting of the directors may be adjourned from time to time by those present, whether a quorum is present or not. Section 7. Compensation. Directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and/or a stated salary as director. No such payment shall preclude any director from serving the Company in any other capacity or receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. Section 8. Committees. The Board of Directors, by resolution or resolutions passed by a majority of the whole Board of Directors, may designate one or more members of the Board of Directors to constitute an Executive Committee and one or more other committees, which shall in each case consist of such number of directors as the Board of Directors may determine. The Executive Committee shall have and may exercise, 3 subject to such restrictions as may be contained in the Amended and Restated Articles of Incorporation or that may be imposed by law, all of the authority of the Board of Directors, including without limitation the power and authority to declare a dividend and to authorize the issuance of shares of the Company. Each other committee shall have and may exercise such powers of the Board in the management of the business and affairs of the Company, including without limitation the power and authority to declare a dividend and to authorize the issuance of shares of the Company, as the Board of Directors may determine by resolution and specify in the respective resolutions appointing them, subject to such restrictions as may be contained in the Amended and Restated Articles of Incorporation or that may be imposed by law. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. A majority of all the members of any such committee may fix its rules of procedure, determine its action and fix the time and place, whether within or without the State of Texas, of its meetings and specify what notice thereof, if any, shall be given, unless the Board of Directors shall provide otherwise by resolution. The Board of Directors shall have power to change the membership of any such committee at any time, to fill vacancies therein and to disband any such committee, either with or without cause, at any time. Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. ARTICLE III. OFFICERS Section 1. Officers. The officers of the Company shall be a President, a Secretary and a Treasurer, and such other officers as the Board of Directors may from time to time deem proper. The same person may be elected to more than one office. Any two or more offices may be held by the same person except the offices of President and Secretary. Officers need not be directors of the Company. Section 2. Removal. The Board of Directors may at any time remove any officer of the Company, with or without cause. Section 3. Powers. The officers of the Company shall have such powers and duties as usually pertain to their offices, respectively, as well as such powers and duties as may from time to time be conferred by the Board of Directors. ARTICLE IV. CAPITAL STOCK Section 1. Stock Certificates. All stock certificates, in the form approved by the Board of Directors, shall be signed by the Chairman of the Board, the President or a Vice-President and by the Secretary or an Assistant Secretary. Section 2. Transfers of Certificates. Transfers of certificates of stock may be made only upon the books of the Company by the holder in person or by attorney, and on the surrender and cancellation of the certificate or certificates for such shares or upon compliance with such conditions as the Board of Directors may determine in the case that any such certificate cannot be produced. No transfer shall affect the right of the Company to pay any dividend due upon the stock or to treat the holder of record as the holder in fact until such transfer is recorded upon the books of the Company. In the case of a lost, destroyed or mutilated stock certificate, a new certificate may be issued therefor upon such conditions for the protection of the Company and any transfer agent or registrar as the Board of Directors or the Secretary or any other officer may prescribe. Section 3. Stockholders of Record. The Board of Directors of the Company may appoint one or more transfer agents or registrars for any class of stock of the Company. The names and addresses of stockholders as they appear on the stock transfer book shall be the official list of stockholders of record of the Company for all purposes. Section 4. Fixing of Record Date. The Board of Directors may fix, in advance, a date as the record date for the purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders or any 4 adjournment thereof, or stockholders entitled to receive a distribution by the Company (other than a distribution involving a purchase or redemption by the Company of any of its own shares) or a share dividend, or in order to make a determination of stockholders for any other proper purpose. Such date, in any case, shall be not more than 60 days, and in the case of a meeting of stockholders not less than 10 days, prior to the date on which the particular action requiring such determination of stockholders is to be taken. ARTICLE V. MISCELLANEOUS PROVISIONS Section 1. Offices. The principal office of the Company shall be located in Sugar Land, Texas at whatever location is designated by the Board of Directors. In the absence of such resolution, it shall be the registered office of the Company registered at that time with the Secretary of State of Texas. The Company may also have offices at such other places as the Board of Directors may designate from time to time or as the business of the Company may require. Section 2. Seal. The seal of the Company shall be circular in form with a five-pointed star in the center and the name of the Company around the margin thereof, or in such other form as may be fixed by resolution of the Board of Directors. Section 3. Resignation. Any director or officer may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or, if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provide in the resignation. Section 4. Waiver. Any provision, notice, requirement or restriction contained in these by-laws may be waived by the written consent of all the stockholders of record of the Company at any time, before or after the event to which such waiver relates. ARTICLE VI. AMENDMENTS These by-laws may be amended or repealed, or new by-laws adopted, (a) by the Board of Directors, unless the stockholders in amending, repealing or adopting a particular by-law expressly provide that the Board of Directors may not amend or repeal that bylaw or unless the Amended and Restated Articles of Incorporation of the Texas Business Corporation Act reserves the power to take such action to the stockholders in whole or in part or (b) by the stockholders, unless the Amended and Restated Articles of Incorporation or a by-law adopted by the stockholders provides otherwise as to all or some portion of the bylaws. ARTICLE VII. INDEMNIFICATION Section 1. The Company shall indemnify, and advance Expenses (as this and all other capitalized words are defined in this Article or in Article 2.02-1 of the T.B.C.A.) to, Indemnitee to the fullest extent permitted by applicable law in effect on August 31, 2001, and to such greater extent as applicable law may thereafter permit. The rights of Indemnitee provided under the preceding sentence shall include, but not be limited to, the right to be indemnified and to have Expenses advanced in all Proceedings to the fullest extent permitted by Article 2.02-1 of the T.B.C.A. or any successor statutory provision, as from time to time amended. The provisions set forth below in this Article are provided as means of furtherance and implementation of, and not in limitation on, the obligation expressed in this Section 1. Section 2. If Indemnitee is not wholly successful, on the merits or otherwise, in a Proceeding but is successful, on the merits or otherwise, as to any Matter in such Proceeding, the Company shall indemnify against all Expenses actually and reasonably incurred by him or on his behalf relating to each Matter. The termination of any Matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such Matter. 5 Section 3. Indemnitee shall be advanced Expenses within 10 days after requesting them to the fullest extent permitted by Article 2.02-1 of the T.B.C.A., subject to compliance of the Indemnitee with such provision. Section 4. To obtain indemnification Indemnitee shall submit to the Company a written request with such information as is reasonably available to Indemnitee. The Secretary of the Company shall promptly advise the Board of Directors of such request. Section 5. If there has been no Change of Control before the time the request for indemnification is sent, Indemnitee's entitlement to indemnification shall be determined in accordance with Article 2.02-1 of the T.B.C.A. If entitlement to indemnification is to be determined by Special Legal Counsel, the Company shall furnish notice to Indemnitee within 10 days after receipt of the request for indemnification, specifying the identity and address of Special Legal Counsel. The Indemnitee may, within 14 days after receipt of such written notice of selection, deliver to the Company a written objection to such selection. Such objection may be asserted only on the ground that the Special Legal Counsel so selected does not meet the requirements of Special Legal Counsel specified in this Article and the objection shall set forth with particularity the factual basis of such assertion. If there is an objection to the selection of Special Legal Counsel, either the Company or Indemnitee may petition any court of competent jurisdiction for a determination that the objection is without a reasonable basis and/or for the appointment of Special Legal Counsel selected by the court. Section 6. If there has been a Change of Control before the time the request for indemnification is sent, Indemnitee's entitlement to indemnification shall be determined in a written opinion by Special Legal Counsel selected by Indemnitee. Indemnitee shall give the Company written notice advising of the identity and address of the Special Legal Counsel so selected. The Company may, within 7 days after receipt of such written notice of selection, deliver to the Indemnitee a written objection to such selection. Indemnitee may, within 5 days after the receipt of such objection from the Company, submit the name of another Special Legal Counsel and the company may, within 7 days after receipt of such written notice of selection, deliver to the Indemnitee a written objection to such selection. Any objection is subject to the limitations in Section 5. Indemnitee may petition any Court of competent jurisdiction for a determination that the Company's objection to the first and/or second selection of Special Legal Counsel is without a reasonable basis and/or for the appointment as Special Legal Counsel of a person selected by the Court. Section 7. If there has been a Change of Control before the time the request for indemnification is sent by Indemnitee, Indemnitee shall be presumed (except as otherwise expressly provided in this Article or as may be required by Article 2.02-1 of the T.B.C.A.) to be entitled to indemnification upon submission of a request for indemnification in accordance with Section 4 of this Article, and thereafter the Company shall have the burden of proof to overcome the presumption in reaching a determination contrary to the presumption. The presumption shall be used by Special Legal Counsel as a basis for a determination of entitlement to indemnification unless the Company provides information sufficient to overcome such presumption by clear and convincing evidence or the investigation, review and analysis of Special Legal Counsel convinces him by clear and convincing evidence that the presumption should not apply. Except in the event that the determination of entitlement to indemnification is to be made by Special Legal Counsel, if the person or persons empowered under Section 5 or 6 of this Article to determine entitlement to indemnification shall not have made and furnished to Indemnitee in writing a determination within 60 days after receipt by the Company of the request therefore, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification unless Indemnitee knowingly misrepresented a material fact in connection with the request for indemnification or such indemnification is prohibited by law. The termination of any Proceeding or of any Matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Article) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that (i) Indemnitee did not conduct himself in good faith and in a manner which he reasonably believed, in the case of conduct in his official capacity as a director of the Company to be in the best interests of the Company or in all other cases that at least his conduct was not opposed to the Company's best interests, or 6 (ii) with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful. Section 8. The Company shall pay any and all reasonable fees and expenses of Special Legal Counsel incurred acting pursuant to this Article and in any proceeding to which it is a party or witness in respect of its investigation and written report and shall pay all reasonable fees and expenses incident to the procedures in which such Special Legal Counsel was selected or appointed. No Special Legal Counsel may serve if a timely objection has been made to his selection until a Court has determined that such objection is without a reasonable basis. Section 9. In the event that (i) a determination is made pursuant to Section 5 or 6 that Indemnitee is not entitled to indemnification under this Article, (ii) advancement of Expenses is not timely made pursuant to Section 3 of this Article, (iii) Special Legal Counsel has not made and delivered a written opinion determining the request for indemnification (a) within 90 days after being appointed by the Court, or (b) within 90 days after objections to his selection have been overruled by the Court, or (c) within 90 days after the time for the Company or Indemnitee to object to his selection, or (iv) payment of indemnification is not made within 5 days after a determination of entitlement to indemnification has been made or deemed to have been made pursuant to Section 5, 6 or 7 of this Article, Indemnitee shall be entitled to an adjudication in any Court of competent jurisdiction of his entitlement to such indemnification or advancement of Expenses. In the event that a determination shall have been made that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section shall be conducted in all respects as a de novo trial on the merits and Indemnitee shall not be prejudiced by reason of the adverse determination. If a Change of Control shall have occurred, in any judicial proceeding the Company shall have the burden of proving that Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be. If a determination shall have been made or deemed to have been made that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 9, or otherwise, unless Indemnitee knowingly misrepresented a material fact in connection with the request for indemnification, or such indemnification is prohibited by law. The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 9 that the procedures and presumptions of this Article are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all provisions of this Article. In the event that Indemnitee, pursuant to this Section 9, seeks a judicial adjudication to enforce his rights under, or to recover damages for breach of, this Article, Indemnitee shall be entitled to recover from the Company, and shall be indemnified by the Company against any and all Expenses actually and reasonably incurred by him in such judicial adjudication, but only if he prevails therein. If it shall be determined in such judicial adjudication that Indemnitee is entitled to receive part but not all of the indemnification or advancement of Expenses sought, the Expenses incurred by Indemnitee in connection with such judicial adjudication shall be appropriately prorated. Section 10. The rights of indemnification and to receive advancement of Expenses as provided by this Article shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Articles of Incorporation, the By-laws, agreement, insurance, arrangement, a vote of shareholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Article or any provision thereof shall be effective as to any Indemnitee for acts, events and circumstances that occurred, in whole or in part, before such amendment, alteration or repeal. The provisions of this Article shall continue as to an Indemnitee whose Corporate Status has ceased and shall inure to the benefit of his heirs, executors and administrators. Section 11. If any provision or provisions of this Article shall be held to be invalid, illegal or unenforceable for any reason whatsoever, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby; and, to the fullest extent possible, the provisions of this Article shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable. 7 Section 12. For purposes of this Article: "Change of Control" means a change of control of the Company after the effective date of the Company's Second Amended and Restated Joint Plan of Reorganization in Case No. 01-00140 in the United States Bankruptcy Court for the District of Delaware in any of the following circumstances: (1) there shall have occurred an event required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated under the Securities Exchange Act of 1934 (the "Act"), whether or not the Company is then subject to such reporting requirement; (2) any "person" (as such term is used in Section 13(d) and 14(d) of the Act) shall have become the "beneficial owner" (as defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Company representing 40% or more of the combined voting power of the Company's then outstanding voting securities without prior approval of at least two-thirds of the members of the Board of Directors in office immediately prior to such person attaining such percentage interest; (3) the Company is a party to a merger, consolidation, sale of assets or other reorganization, or a proxy contest, as a consequence of which members of the Board of Directors in office immediately prior to such transaction or event constitute less than a majority of the Board of Directors thereafter; (4) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors (including for this purpose any new director whose election or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) cease for any reason to constitute at least a majority of the Board of Directors. "Corporate Status" describes the status of a person who is or was a director, officer, employee or agent of the Company or who is or was serving at the request of the Company as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise which such person is or was serving at the request of the Company. "Expenses" shall include all reasonable attorneys' fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or prepared to be a witness in a Proceeding. "Indemnitee" includes any person who is, or is threatened to be made, a witness in or a party to any Proceeding as described in Section 1 or 2 of this Article by reason of his Corporate Status. "Matter" is a claim, a material issue, or a substantial request for relief. "Special Legal Counsel" means a law firm, or member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the five years previous to his selection or appointment has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party, (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder or (iii) the beneficial owner, directly or indirectly, of securities of the Company representing 40% or more of the combined voting power of the Company's then outstanding voting securities. "T.B.C.A." means the Texas Business Corporation Act. Section 13. Any communication required or permitted to the Company shall be addressed to the Secretary of the Company and any such communication to Indemnitee shall be addressed to his home address unless he specifies otherwise and shall be personally delivered or delivered by overnight mail delivery. 8 EX-4.1 5 dex41.txt SECOND AMENDED AND RESTATED JOINT PLAN Exhibit 4.1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: IMPERIAL DISTRIBUTING, INC., IMPERIAL HOLLY CORPORATION, IMPERIAL-SAVANNAH, L.P., IMPERIAL SUGAR COMPANY, IMPERIAL SWEETENER DISTRIBUTORS, INC., BIOMASS CORPORATION, CROWN EXPRESS, INC., DIAMOND CRYSTAL BRANDS, INC., DIAMOND CRYSTAL BRANDS, L.P., DIAMOND CRYSTAL HOLDINGS, INC., DIAMOND CRYSTAL SPECIALTY FOODS, INC., DIXIE CRYSTAL FOODSERVICE, INC., DSLT HOLDING COMPANY, FOOD CARRIER, INC., FORT BEND UTILITIES COMPANY, GREAT LAKES SUGAR COMPANY, HOLLY FINANCE COMPANY, HOLLY NORTHWEST COMPANY, HOLLY SUGAR CORPORATION, HSC EXPORT CORP., ICUBE, INC., KING PACKAGING COMPANY, INC., LIMESTONE PRODUCTS COMPANY, MENU MAGIC FOODS, INC, MICHIGAN SUGAR COMPANY, PHOENIX PACKAGING CORPORATION, RAGUS HOLDINGS, INC., SAVANNAH FOODS & INDUSTRIES, INC., SAVANNAH FOODS INDUSTRIAL, INC., SAVANNAH INTERNATIONAL COMPANY, SAVANNAH INVESTMENT COMPANY, SAVANNAH MOLASSES & SPECIALTIES COMPANY, SAVANNAH PACKAGING COMPANY, SAVANNAH SUGAR REFINING CORPORATION, SAVANNAH TOTAL INVERT COMPANY, WHOLESOME SWEETENERS GROUP, LTD., and WHOLESOME SWEETENERS L.L.C., Chapter 11 Case Nos. 01-00140 through 01- 00176 (SLR) (Jointly Administered) Debtors. DEBTORS' SECOND AMENDED AND RESTATED JOINT PLAN OF REORGANIZATION YOUNG CONAWAY STARGATT & TAYLOR, LLP BAKER BOTTS L.L.P. James L. Patton Jr. Jack L. Kinzie Brendan Linehan Shannon Brenda T. Rhoades Eleventh Floor, Wilmington Trust Center 2001 Ross Avenue 1100 North Market Street Dallas, Texas 75201-2980 P.O. Box 391 Telephone: 214.953.6500 Wilmington, Delaware 19899-0391 Facsimile: 214.953.6503 Telephone: 302.571.6600 Email: jack.kinzie@bakerbotts.com Facsimile: 302.571.1253 brenda.rhoades@bakerbotts.com Email:jpatton@ycst. com bshannon@ycst.com BAKER BOTTS L.L.P. Tony M. Davis One Shell Plaza 910 Louisiana Houston, Texas 77002-4995 Telephone: 713.229.1234 Facsimile: 713.229.1522 Email: tony.davis@bakerbotts.com COUNSEL FOR THE DEBTORS
Dated: June 5, 2001 A-1 TABLE OF CONTENTS
Page ---- ARTICLE 1 DEFINITIONS AND RULES OF CONSTRUCTION................................. A-5 ARTICLE 2 TREATMENT OF ADMINISTRATIVE CLAIMS AND PRIORITY TAX CLAIMS............ A-16 2.1 Administrative Claims........................................... A-16 2.2 Priority Tax Claims............................................. A-17 ARTICLE 3 CLASSIFICATION OF CLAIMS AND INTERESTS................................ A-17 3.1 Generally....................................................... A-17 3.2 Unclassified Claims............................................. A-17 3.3 Classes......................................................... A-17 ARTICLE 4 TREATMENT OF CLAIMS AND INTERESTS..................................... A-18 4.1 Unclassified Claims............................................. A-18 4.2 Classes of Claims and Interests................................. A-18 ARTICLE 5 TREATMENT OF EXECUTORY CONTRACTS, AND UNEXPIRED LEASES................ A-21 5.1 Assumption and Rejection of Unexpired Leases and Executory Contracts.................................................... A-21 5.2 Continuation of Employee Compensation and Benefit Programs...... A-21 5.3 Rejection Damages Claims........................................ A-21 5.4 Assumption Claims............................................... A-21 ARTICLE 6 ACCEPTANCE OR REJECTION OF THE PLAN................................... A-22 6.1 Each Impaired Class Entitled to Vote Separately................. A-22 6.2 Acceptance By Impaired Classes of Claims........................ A-22 6.3 Acceptance By Impaired Class of Interests....................... A-22 6.4 Presumed Acceptance of Plan..................................... A-22 ARTICLE 7 CONDITIONS TO CONFIRMATION AND EFFECTIVENESS; REQUIRED NOTICES........ A-22 7.1 Conditions to Confirmation...................................... A-22 7.2 Conditions to Effectiveness..................................... A-22 7.3 Notice to Bankruptcy Court...................................... A-23 ARTICLE 8 DESCRIPTION OF SECURITIES ISSUED UNDER PLAN........................... A-23 8.1 New Common Stock................................................ A-23 8.2 Reorganized Imperial Warrants................................... A-23 8.3 Management Options.............................................. A-24 8.4 Registration and Listing........................................ A-24 8.5 Registration Rights for Certain Holders of New Common Stock..... A-24 ARTICLE 9 MEANS FOR IMPLEMENTATION OF THE PLAN.................................. A-25 9.1 Substantive Consolidation....................................... A-25 9.2 Revesting of Assets............................................. A-25 9.3 Amended Articles of Incorporation and Amended Bylaws of Reorganized Imperial......................................... A-25 9.4 Initial Directors of Reorganized Imperial....................... A-25 9.5 Management of Reorganized Imperial and the Reorganized Debtors.. A-25 9.6 Withholding of Taxes............................................ A-25 9.7 Cancellation of Existing Common Stock........................... A-25 9.8 Authority to Prosecute or Settle Avoidance Litigation........... A-25 9.9 Unclaimed Property.............................................. A-26 9.10 Plan Distributions.............................................. A-26 9.11 Further Authorizations.......................................... A-26 9.12 Transfer Taxes.................................................. A-26 9.13 Payment of United States Trustee's Fees......................... A-26 9.14 Recordable Order................................................ A-26
A-2
Page ---- 9.15 Effectuating Documents and Further Transactions............. A-26 9.16 Corporate Action............................................ A-26 9.17 Dissolution of Committees................................... A-27 9.18 Discharge of Indenture Trustee.............................. A-27 9.19 Payment of Indenture Trustee's Fees......................... A-27 9.20 Payment of IDB Indenture Trustees' Fees..................... A-27 9.21 Survival of Indemnification Obligations..................... A-27 9.22 Performance of Postpetition Beet Grower Obligations......... A-27 9.23 Limited Waiver and Release of Liens by Bank Group........... A-27 ARTICLE 10 INJUNCTIONS, RELEASES AND DISCHARGE................................ A-27 10.1 Discharge and Release....................................... A-27 10.2 Discharge Injunction........................................ A-28 10.3 Discharge of Disallowed Claims and Disallowed Interests..... A-28 10.4 Releases of Corporate Officers.............................. A-28 10.5 Exoneration and Reliance.................................... A-28 ARTICLE 11 MATTERS INCIDENT TO PLAN CONFIRMATION.............................. A-29 11.1 Term of Certain Injunctions and Automatic Stay.............. A-29 11.2 No Liability for Tax Claims................................. A-29 11.3 Compliance with Tax Requirements............................ A-29 ARTICLE 12 RESOLUTION OF DISPUTED CLAIMS...................................... A-29 12.1 Disputed Claims and Determination of Disputed Claims........ A-29 ARTICLE 13 RETENTION OF JURISDICTION.......................................... A-31 13.1 Jurisdiction................................................ A-31 13.2 General Retention........................................... A-31 13.3 Specific Purposes........................................... A-31 13.4 Failure of Bankruptcy Court to Exercise Jurisdiction........ A-32 ARTICLE 14 MISCELLANEOUS...................................................... A-32 14.1 Revocation of Plan.......................................... A-32 14.2 Modification of Plan........................................ A-32 14.3 Modification of Payment Terms............................... A-32 14.4 Section 1145 Exemption...................................... A-32 14.5 Section 1146 Exemption...................................... A-32 14.6 Entire Agreement............................................ A-32 14.7 Severability................................................ A-33 14.8 Rules of Construction....................................... A-33 14.9 Successors and Assigns...................................... A-33 14.10 Headings.................................................... A-33 14.11 Administrative Claims Bar Date.............................. A-33 14.12 Governing Law............................................... A-33 14.13 Consent to Jurisdiction..................................... A-33 14.14 Setoffs..................................................... A-33 14.15 Non-Debtor Waiver of Rights................................. A-33 14.16 Professional Fees........................................... A-33 14.17 PIK Obligations............................................. A-33 14.18 Filing of Additional Documents.............................. A-34 14.19 Notices..................................................... A-34
A-3 EXHIBITS Annex 1 Term Sheet for Amended Senior Credit Agreement Annex 2 Reorganized Imperial Long-Term Incentive Plan Annex 3 Amended and Restated Certificate of Incorporation of Reorganized Imperial Annex 4 Amended and Restated Bylaws of Reorganized Imperial Annex 5 Form of Non-Participating Lender Note Annex 6 Form of Warrant Agreement A-4 DEBTORS' SECOND AMENDED AND RESTATED JOINT PLAN OF REORGANIZATION This Second Amended and Restated Joint Plan of Reorganization is proposed by Imperial Distributing, Inc., Imperial Holly Corporation, Imperial-Savannah L.P., Imperial Sugar Company, Imperial Sweetener Distributors, Inc., Biomass Corporation, Crown Express, Inc., Diamond Crystal Brands, Inc., Diamond Crystal Brands, L.P., Diamond Crystal Holdings, Inc., Diamond Crystal Specialty Foods, Inc., Dixie Crystal FoodService, Inc., DSLT Holding Company, Food Carrier, Inc., Fort Bend Utilities Company, Great Lakes Sugar Company, Holly Finance Company, Holly Northwest Company, Holly Sugar Corporation, HSC Export Corp., ICUBE, Inc., King Packaging Company, Inc., Limestone Products Company, Menu Magic Foods, Inc., Michigan Sugar Company, Phoenix Packaging Corporation, Ragus Holdings, Inc., Savannah Foods & Industries, Inc., Savannah Foods Industrial, Inc., Savannah International Company, Savannah Investment Company, Savannah Molasses & Specialties Company, Savannah Packaging Company, Savannah Sugar Refining Corporation, Savannah Total Invert Company, Wholesome Sweeteners Group, Ltd., and Wholesome Sweeteners L.L.C. for reorganization of their financial affairs pursuant to chapter 11 of the Bankruptcy Code. ALL HOLDERS OF CLAIMS AND INTERESTS ARE URGED TO READ WITH CARE THIS PLAN AND THE ACCOMPANYING DISCLOSURE STATEMENT IN EVALUATING HOW THIS PLAN WILL AFFECT THEIR CLAIMS AND/OR INTERESTS. ARTICLE 1 Definitions and Rules of Construction Unless the context requires otherwise, the following terms shall have the meanings below when used with the initial letter capitalized. Such meanings shall be equally applicable to both the singular and plural forms of such terms. Any term used in capitalized form that is not defined herein but that is defined in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning ascribed to such term by the Bankruptcy Code or the Bankruptcy Rules (with the Bankruptcy Code controlling in the case of a conflict or ambiguity). The rules of construction set forth in section 102 of the Bankruptcy Code shall apply in construction of the Plan Documents. 1.1 "Ad Hoc Bondholder Committee" means the Ad Hoc Committee of Bondholders formed prior to the Petition Date as described more fully in the Disclosure Statement. 1.2 "Ad Hoc SERP/DC Committee" means the informal committee of eighty-six holders of Inactive Non-Qualified Benefits Claims who have appeared and participated in these cases through counsel James L. Paul of Chamberlain, Hrdlicka, White, Williams & Martin and Neil B. Glassman of The Bayard Firm. 1.3 "Administrative Claim" means any claim for the payment of an Administrative Expense. 1.4 "Administrative Claims Bar Date" means that date established pursuant to Article 14.11 of the Plan, as may be extended from time to time by order of the Bankruptcy Court, as the deadline for filing Administrative Claims. 1.5 "Administrative Expense" means (a) any cost or expense of administration under section 503(b) of the Bankruptcy Code including, but not limited to (1) any actual and necessary postpetition cost or expense of preserving the Estate or operating the business of the Debtors, including, without limitation, any Postpetition Beet Grower Obligations to the extent not previously paid by the Debtors, (2) any payment required to be made under the Plan to cure a default on an assumed executory contract or unexpired lease, (3) any prepetition obligation authorized by the Bankruptcy Court and agreed by the Debtors to be paid by the Debtors in the ordinary course, but not yet due and payable according to its terms, including Deemed Allowed Prepetition Beet Grower Claims (except to the extent such holder has agreed to other lesser treatment), (4) any postpetition cost, indebtedness, or contractual obligation duly and validly incurred or assumed by the Debtors in the ordinary A-5 course of business, and (5) compensation or reimbursement of expenses of professionals to the extent allowed by the Bankruptcy Court under sections 330(a) or 331 of the Bankruptcy Code, (b) any fee or charge assessed against an Estate under 28 U.S.C. (S) 1930, and (c) any Claim allowed pursuant to 11 U.S.C. (S) 503, including the Deemed Allowed Ad Hoc SERP/DC Committee Administrative Claim and the Deemed Allowed Ad Hoc Bondholder Committee Administrative Claim. 1.6 "Affiliate" shall have the meaning ascribed to such term in section 101(2) of the Bankruptcy Code. 1.7 "Agent" means Harris Trust & Savings Bank or its successor as administrative agent and/or collateral agent under the Senior Credit Agreement. 1.8 "Allowed" means, with respect to any Claim (other than a Disputed Claim) or Interest, (a) any Claim or Interest, proof of which was timely filed with the Bankruptcy Court or its duly appointed claims agent, or, by order of the Bankruptcy Court, was not required to be filed, or (b) any Claim or Interest that has been, or hereafter is, listed in the Schedules as liquidated in amount and not disputed or contingent, and, in (a) and (b) above, as to which either (1) no objection to the allowance thereof has been filed within the applicable period of limitation fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules, or the Bankruptcy Court or (2) the Claim or Interest has been allowed by a Final Order (but only to the extent so allowed). 1.9 "Allowed Amount" means the amount at which a Claim is Allowed. 1.10 "Allowed Inactive Non-Qualified Benefits Claim" means the actuarial present value of the projected benefit obligations due under the agreements giving rise to an Inactive Non-Qualified Benefits Claim, calculated using a six percent (6%) discount rate, such claim to include such additional amount as may be Allowed by order of the Bankruptcy Court for pre-petition fees and costs permitted under applicable agreement, if any. 1.11 "Amended Senior Credit Agreement" means the Amended and Restated Credit Agreement and related loan documents to be executed on the Effective Date among the Reorganized Debtors, Tranche A Term Lenders, Tranche B Term Lenders and Participating Lenders, whose substance shall conform in substantial part to the terms and conditions set forth in the Term Sheet attached as Annex 1 to the Plan. 1.12 "Ballot" means the ballot distributed to holders of Claims or Interests entitled to vote on the Plan. 1.13 "Bank Group" means the lenders and their successors and assigns under the Senior Credit Agreement. 1.14 "Bank Group Claim" means the Deemed Allowed Bank Group Claim or any portion of such Claim attributable to loans, advances, and financial accommodations provided by a member of the Bank Group under the Senior Credit Agreement. 1.15 "Bankruptcy Code" means title 11 of the United States Code, 11 U.S.C. (S)(S) 101, et seq., as in effect on the Petition Date, together with all amendments and modifications thereto as subsequently made applicable to the Reorganization Cases. 1.16 "Bankruptcy Court" means the United States District Court for the District of Delaware or any unit thereof assigned to the Reorganization Cases. 1.17 "Bankruptcy Rules" means the Federal Rules of Bankruptcy Procedure and the local rules of the Bankruptcy Court, as in effect on the Petition Date, together with all amendments and modifications thereto which are subsequently made applicable to the Reorganization Cases. 1.18 "Bar Date" means April 23, 2001, unless extended by the Bankruptcy Court. 1.19 "Biomass" means Biomass Corporation, a Delaware corporation. A-6 1.20 "Bondholder Claim" means the Allowed Unsecured Claim of a holder of Imperial Senior Subordinated Notes. 1.21 "Business Day" means any day other than a Saturday, Sunday, or legal holiday (as such term is defined in Bankruptcy Rule 9006(a)). 1.22 "Cash" means lawful currency of the United States of America and its equivalents. 1.23 "Claim" shall have the meaning ascribed to such term in section 101(5) of the Bankruptcy Code. 1.24 "Claims Agent" means J.A. Compton & Company, P.C., the Debtors' court- approved agent for receiving and processing proofs of claim and proofs of interest in the Reorganization Cases. 1.25 "Class" means a category of Claims or Interests, as classified in Article 3 of the Plan. 1.26 "Class 5A/5B New Common Stock" means the 9,800,000 shares of New Common Stock (equivalent to 79.4% of the shares of Reorganized Imperial on a fully- diluted basis after exercise of Class 9 Warrants and Management Options) which are to be issued by Reorganized Imperial and distributed on a Pro Rata basis to the Holders of Allowed Unsecured Claims treated under Class 5A of the Plan and holders of Inactive Non-Qualified Benefits Claims treated under Class 5B of the Plan, other than those holders of Claims in Class 5A and Class 5B who make an election on their Ballots to receive other treatment in lieu of New Common Stock. 1.27 "Class 9 New Common Stock" means the 200,000 shares of New Common Stock (equivalent to 1.6% of the shares of Reorganized Imperial on a fully-diluted basis after exercise of Class 9 Warrants and Management Options) which, subject to the terms of the Plan and requirements of the Bankruptcy Code, are to be issued by Reorganized Imperial and distributed on a Pro Rata basis to the holders of Class 9 Interests pursuant to the Plan. 1.28 "Class 9 Warrants" means those Reorganized Imperial Warrants representing the right to purchase 1,111,111 shares of New Common Stock (equivalent to 9% of the shares of Reorganized Imperial on a fully-diluted basis after exercise of the Management Options) which, subject to the terms of the Plan and requirements of the Bankruptcy Code, are to be issued to holders of Class 9 Interests pursuant to the Plan. 1.29 "Confirmation" or "Confirmation of the Plan" means the approval of the Plan by the Bankruptcy Court at the Confirmation Hearing. 1.30 "Confirmation Date" means the date on which the Confirmation Order is entered on the docket of the Bankruptcy Court. 1.31 "Confirmation Hearing" means the hearing(s) which will be held before the Bankruptcy Court in which the Debtors will seek Confirmation of the Plan. 1.32 "Confirmation Order" means the order of the Bankruptcy Court confirming the Plan. 1.33 "Convenience Claim" means any Allowed Unsecured Claim, excluding Bondholder Claims and Inactive Non-Qualified Benefits Claims, otherwise entitled to treatment under Class 5A of the Plan, which is $5,000 or less when aggregated with the other Unsecured Claims of such holder, or, in the alternative, is reduced by election of such holder on such holder's Ballot, together with all other Unsecured Claims of such holder as of the Petition Date, to an aggregate Unsecured Claim of $5,000. 1.34 "Corporate Documents" means the constituent documents of any Debtor or Reorganized Debtor, including, but not limited to, articles of incorporation, bylaws, or partnership agreements. 1.35 "Creditors Committee" means the Official Committee of Unsecured Creditors appointed by the United States Trustee in the Reorganization Cases. A-7 1.36 "Crown Express" means Crown Express, Inc., a Texas corporation. 1.37 "Debtors" means Imperial, Imperial Distributing, Imperial Holly, Imperial-Savannah, Imperial Sweetener, Biomass, Crown Express, Diamond Crystal, Diamond Crystal Brands, Diamond Crystal Brands, L.P., Diamond Crystal Holdings, Dixie, DSLT, FCI, Fort Bend, Great Lakes, Holly, Holly Finance, Holly Northwest, HSC, ICUBE, King, Limestone, Menu Magic, Michigan Sugar, Phoenix, Ragus, Savannah Foods, Savannah Industrial, Savannah International, Savannah Investment, Savannah Molasses, Savannah Packaging, Savannah Sugar, Savannah Total Invert, Wholesome Sweeteners, and Wholesome Sweeteners Group or any one or more of them. 1.38 "Debtors-in-Possession" means Imperial, Imperial Distributing, Imperial Holly, Imperial-Savannah, Imperial Sweetener, Biomass, Crown Express, Diamond Crystal, Diamond Crystal Brands, Diamond Crystal Brands, L.P., Diamond Crystal Holdings, Dixie, DSLT, FCI, Fort Bend, Great Lakes, Holly, Holly Finance, Holly Northwest, HSC, ICUBE, King, Limestone, Menu Magic, Michigan Sugar, Phoenix, Ragus, Savannah Foods, Savannah Industrial, Savannah International, Savannah Investment, Savannah Molasses, Savannah Packaging, Savannah Sugar, Savannah Total Invert, Wholesome Sweeteners, and Wholesome Sweeteners Group or any one or more of them. 1.39 "Deemed Allowed Ad Hoc Bondholder Committee Administrative Claim" means the Administrative Claim of the Ad Hoc Bondholder Committee under 11 U.S.C. (S) 503(b)(3)(D) for reimbursement of reasonable attorneys fees and expenses incurred in connection with the substantial contribution provided by such committee during the Reorganization Cases, which shall be deemed allowed in the amount provided in the Confirmation Order and satisfied from retainer funds being held by Skadden, Arps, Slate, Meagher & Flom (Illinois). 1.40 "Deemed Allowed Ad Hoc SERP/DC Committee Administrative Claim" means the Administrative Claim of the Ad Hoc SERP/DC Committee under 11 U.S.C. (S) 503(b)(3)(D) for reimbursement of reasonable fees and expenses (including reasonable attorneys fees and expenses) incurred in connection with the substantial contribution provided by such committee in the negotiation of the treatment of Inactive Non-Qualified Benefits Claims under Class 5B of the Plan, which Administrative Claim shall be deemed allowed upon Confirmation of the Plan (i) in the amount of $195,985.47 (representing fees and expenses of $169,243.30 incurred by Chamberlain, Hrdlicka, White, Williams and Martin through April 15, 2001 and fees and expenses of $26,742.17 incurred by the Bayard Firm through February 28, 2001 and (ii) in such further amount as included in the Confirmation Order or otherwise Allowed for services prior to the Effective Date. 1.41 "Deemed Allowed Bank Group Claim" shall mean the aggregate of Claims of Tranche A Term Lenders, Tranche B Term Lenders, and lenders under the Revolving Credit Facility which shall be deemed Allowed for purposes of the Plan in the total aggregate amount, as of the Petition Date, of $303 million and fully secured by valid, perfected and fully enforceable Liens in the collateral provided for under the Senior Credit Agreement. 1.42 "Deemed Allowed Prepetition Beet Grower Claim" shall mean the prepetition contractual claim of a grower of sugar beets who has contracted with the Debtors or, in Michigan, with Michigan Beet Growers, Inc. to grow sugar beets for the year 2001 to the extent such Claim remains unpaid as of the Effective Date, which shall be deemed allowed as an Administrative Claim upon entry of the Confirmation Order without the need for amendments to proofs of claim or separate request or application for allowance. 1.43 "Deferred Compensation Claim" means an Unsecured Claim arising under a Deferred Compensation Plan. 1.44 "Deferred Compensation Plans" means the voluntary retirement benefit arrangements with selected employees and/or directors and former employees and/or directors of the Debtors pursuant to which such employees or directors deferred part of their compensation for services rendered until attainment of retirement age or actual retirement or separation from the company. A-8 1.45 "Diamond Crystal" means Diamond Crystal Specialty Foods, Inc., a Michigan corporation. 1.46 "Diamond Crystal Brands" means Diamond Crystal Brands, Inc., a Delaware corporation. 1.47 "Diamond Crystal Brands, L.P." means Diamond Crystal Brands, L.P., a Delaware limited partnership. 1.48 "Diamond Crystal Holdings" means Diamond Crystal Holdings, Inc., a Delaware corporation. 1.49 "DIP Agent" means Harris Trust & Savings Bank or its successor as administrative agent and/or collateral agent under the DIP Facility. 1.50 "DIP Facility" means the debtor-in-possession financing facility between the Debtors and certain lenders approved by the Bankruptcy Court as part of the Reorganization Cases. 1.51 "DIP Lender" means a lender under the DIP Facility. 1.52 "Disallowed Claim" means a Claim which shall have been disallowed by Final Order. 1.53 "Disallowed Interest" means an Interest which shall have been disallowed by Final Order. 1.54 "Disbursing Agent" means Reorganized Imperial or, as the case may be, any Entity or Person designated by the Debtors to make distributions required under the Plan; provided, however, that the Indenture Trustee shall serve as Disbursing Agent for holders of Bondholder Claims. 1.55 "Discharge Injunction" means the injunction described in Article 10.2 of the Plan. 1.56 "Disclosure Statement" means the Amended and Restated Disclosure Statement in Support of Debtors' Second Amended and Restated Joint Plan of Reorganization dated June 5, 2001, including all exhibits, appendices, schedules, and annexes attached thereto, as submitted by the Debtors pursuant to section 1125 of the Bankruptcy Code and approved by the Bankruptcy Court, as such Disclosure Statement may be amended, supplemented, or modified from time to time. 1.57 "Disputed Claim" means any Claim that has not been Allowed by a Final Order as to which (a) a Proof of Claim has been filed with the Bankruptcy Court or its duly appointed claims agent, or is deemed filed under applicable law or order of the Bankruptcy Court, and (b) an objection has been or may be timely filed or deemed filed under applicable law and any such objection has not been (1) withdrawn, (2) overruled or denied by a Final Order, or (3) granted by a Final Order. For purposes of the Plan, a Claim that has not been Allowed by a Final Order shall be considered a Disputed Claim, whether or not an objection has been or may be timely filed, if (A) the amount of the Claim specified in the Proof of Claim exceeds the amount of any corresponding Claim scheduled in the Schedules, (B) the classification of the Claim specified in the Proof of Claim differs from the classification of any corresponding Claim scheduled in the Schedules, (C) any corresponding Claim has been scheduled in the Schedules as disputed, contingent or unliquidated, (D) no corresponding Claim has been scheduled in the Schedules, or (E) such Claim is reflected as unliquidated or contingent in the Proof of Claim filed in respect thereof. 1.58 "Distribution Date" means, when used with respect to an Allowed Claim, the date which is as soon as reasonably practicable after the later of: (a) the Effective Date, (b) the date on which such Claim is due and owing in accordance with its terms, or (c) the first Business Day of the next calendar quarter after the date upon which the Claim becomes Allowed, unless the Claim becomes Allowed within fifteen (15) Business Days before the first Business Day of the next calendar quarter, in which case the Distribution Date shall be the first Business Day of the next succeeding calendar quarter; provided, however, that the Reorganized Debtors shall have the authority, in their sole discretion, to make earlier distributions if deemed appropriate by them. 1.59 "Distribution Record Date" means the date specified in Bankruptcy Rule 3021 unless an alternative date is set by the Bankruptcy Court, upon appropriate notice, for determining the holders of Imperial Senior Subordinated Notes and Existing Common Stock entitled to receive distributions under the Plan. 1.60 "District Court" means the United States District Court for the District of Delaware, or the unit thereof having jurisdiction over the matter in question. A-9 1.61 "Dixie" means Dixie Crystal FoodService, Inc., a Delaware corporation. 1.62 "DSLT" means DSLT Holding Company, a Delaware corporation. 1.63 "Effective Date" means, and shall occur on, the first Business Day immediately following the first day upon which all of the conditions to occurrence of the Effective Date contained in Article 7.2 of the Plan have been satisfied or waived. 1.64 "Entity" means any corporation, general or limited liability partnership, joint venture, governmental agency or body, or unincorporated group or body. 1.65 "Equity Committee" means the Official Committee of Equity Holders appointed by the United States Trustee in the Reorganization Cases, as reconstituted from time to time. 1.66 "ERISA" means the Employee Retirement Insurance and Security Act of 1974, as amended. 1.67 "Estates" means the estates created for the Debtors by section 541 of the Bankruptcy Code upon the commencement of the Reorganization Cases. 1.68 "Existing Common Stock" means the issued and outstanding common stock of Imperial as of the Petition Date and all warrants, options or other rights to purchase or subscribe to equity securities of Imperial, including those rights to purchase preferred stock under the Rights Agreement dated as of September 14, 1989 between Imperial and The Bank of New York, as rights agent, as amended, to the extent such warrants, options or other rights were exercised prior to the Confirmation Date. 1.69 "Exonerated Parties" means the Debtors, Reorganized Debtors, Creditors Committee, Indenture Trustee, Ad Hoc Bondholder Committee, Harris Trust & Savings Bank, the Bank Group (excluding Non-Participating Lenders), 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. 1.70 "FCI" means Food Carrier, Inc., a Georgia corporation. 1.71 "Final Order" means (1) an order of the Bankruptcy Court as to which the time to appeal, petition for writ of certiorari, or move for reargument or rehearing has expired and as to which no appeal, petition for writ of certiorari, or other proceedings for reargument or rehearing shall then be pending or, (2) in the event that an appeal, writ of certiorari, reargument, or rehearing thereof has been sought, such order of the Bankruptcy Court that shall have been affirmed by the highest court to which such order was appealed, or such writ of certiorari shall have been denied or from which reargument or rehearing was sought and the time to take any further appeal, to petition for writ of certiorari or to move for reargument or rehearing shall have expired; provided, however, that no order shall fail to be a Final Order solely because of the possibility that a motion pursuant to Rule 60 of the Federal Rules of Civil Procedure may be filed with respect to such order. 1.72 "Fort Bend" means Fort Bend Utilities Company, a Texas corporation. 1.73 "Governmental Unit" means a governmental unit within the meaning of section 101(27) of the Bankruptcy Code. 1.74 "Great Lakes" means Great Lakes Sugar Company, an Ohio corporation. 1.75 "Guaranty Obligations" means guaranty obligations of the Debtors under the Senior Credit Agreement. 1.76 "Holly" means Holly Sugar Corporation, a New York corporation. 1.77 "Holly Finance" means Holly Finance Company, a Delaware corporation. 1.78 "Holly Northwest" means Holly Northwest Company, a Nevada corporation. A-10 1.79 "HSC" means HSC Export Corp., a United States Virgin Islands corporation. 1.80 "ICUBE" means ICUBE, Inc., a Delaware corporation. 1.81 "IDB Claim" means a claim arising from an IDB Obligation. 1.82 "IDB Indenture Trustee" means an indenture trustee for holders of IDB Obligations of the Debtors. 1.83 "IDB Obligation" means an obligation of the Debtors arising from the issuance of industrial development bonds, including any guaranty obligations. 1.84 "Imperial" means Imperial Sugar Company, a Texas corporation. 1.85 "Imperial Distributing" means Imperial Distributing, Inc., a Delaware corporation. 1.86 "Imperial Holly" means Imperial Holly Corporation, a Texas corporation. 1.87 "Imperial Retirement Plan" means the tax qualified benefit plan in force on the Petition Date covering non-union employees of Imperial and certain subsidiaries, exclusive of non-union employees of Savannah and its subsidiaries. 1.88 "Imperial-Savannah" means Imperial-Savannah, L.P., a Delaware limited partnership. 1.89 "Imperial Senior Subordinated Notes" means the 9 3/4% Senior Subordinated Notes due 2007 issued pursuant to the trust indenture dated as of December 22, 1997 between Imperial and certain subsidiaries, on the one hand, and The Bank of New York, as Indenture Trustee, on the other hand, as amended by that Supplemental Indenture dated as of September 30, 1998 between Imperial, certain subsidiaries, and The Bank of New York as Indenture Trustee and that Resignation, Appointment and Acceptance Agreement, dated November 2, 2000, between Imperial, the Bank of New York, as resigning trustee, and the United States Trust Company of New York, as successor trustee. 1.90 "Imperial Stock Plan" means the Imperial Sugar Company Stock Incentive Plan as amended and restated effective May 1, 1997. 1.91 "Imperial Sweetener" means Imperial Sweetener Distributors, Inc., a Texas corporation. 1.92 "Inactive Non-Qualified Benefits Claim" means a Deferred Compensation Claim or SERP Claim of a Person or, if applicable, the heir to such Person, whose employment by, or service as a director of, a Debtor terminated prior to the Confirmation Date. 1.93 "Inactive Non-Qualified Benefits Convenience Claim" means an Inactive Non-Qualified Benefits Claim that aggregated with all other Inactive Non- Qualified Benefits Claims of such holder provides for payments of less than $3,000 per month or, if the aggregate of all Inactive Non-Qualified Benefits Claims of a holder provide for payments of more than $3,000 per month, all Inactive Non-Qualified Benefits Claims for which the holder of such Claims has irrevocably reduced to total payments of $3,000 per month by appropriate election on such holder's Ballot; provided, however, that no such election will be effective unless such election applies to all Inactive Non-Qualified Benefits Claims of such holder. 1.94 "Inactive SERP/DC Note" means the note to be issued by Reorganized Imperial and Reorganized Savannah on the later of (a) the Effective Date, or (b) as soon as practicable after such Claim is Allowed by the Bankruptcy Court, to holders of Inactive Non-Qualified Benefits Claims electing to receive Cash payments under Class 5B of the Plan and providing for payment of an amount equal to sixty percent (60%) of the Allowed Inactive Non-Qualified Benefits Claim of such holder, less payments received on the Distribution Date, through A-11 equal quarterly installments, without interest, commencing on the first Business Day that is six (6) months from the Effective Date and ending on the sixth (6th) anniversary of the Confirmation Date, or the first Business Day thereafter, provided, however, that in the event that (a) the Debtors file cases under chapter 7 of the Bankruptcy Code, or the Reorganization Cases are converted to cases under chapter 7 of the Bankruptcy Code, or (c) the Reorganized Debtors default on their obligations under the Plan to the holder of such Inactive SERP/DC Note and the holder of such note obtains a judgment in a court of competent jurisdiction to enforce its right to recover from the Reorganized Debtors, the amount of which the holder of such note shall be entitled to recover shall be the full amount of such holder's Allowed Inactive Non-Qualified Benefits Claim less a credit for payments received under the Plan, calculated as a credit of $1.6667 for each $1.00 paid under the Plan. 1.95 "Indenture Trustee" means the United States Trust Company of New York in its capacity as indenture trustee for the holders of Imperial Senior Subordinated Notes. 1.96 "Initial Management" means the officers and key management employees of the Reorganized Debtors as exists immediately upon occurrence of the Effective Date. 1.97 "Injunction" means any of the injunctions granted under the terms of Article 10 of the Plan and any injunction contained in the Confirmation Order. 1.98 "Intercompany Claims" means claims by and between any of the Debtors or between a Debtor and a Non-Debtor Affiliate. 1.99 "Interest" means a share of Existing Common Stock and any equity interest within the meaning of section 101(16) of the Bankruptcy Code representing the right to purchase or acquire a share of Existing Common Stock. 1.100 "King" means King Packaging Company, Inc., a Delaware corporation. 1.101 "Lien" means, with respect to any asset or property, any mortgage, lien, pledge, charge, security interest, encumbrance or other security device of any kind pertaining to or affecting such asset or property. 1.102 "Limestone" means Limestone Products Company, Inc., a Delaware corporation. 1.103 "Management Options" means options authorized to be granted by the compensation committee of the board of directors of Reorganized Imperial (or such other committee designated by the board of directors to administer the Reorganized Imperial Long-Term Incentive Plan), in its discretion, to management of the Reorganized Debtors pursuant to the Reorganized Imperial Long-Term Incentive Plan, conveying the right to purchase an aggregate of 1,234,568 shares of the New Common Stock of Reorganized Imperial (representing 10% of the shares of Reorganized Imperial on a fully-diluted basis assuming exercise of Class 9 Warrants). 1.104 "Management Retention Plan" means the retention and incentive plan for executives and certain key employees established by the Debtors and approved by the Bankruptcy Court on February 23, 2001. 1.105 "Menu Magic" means Menu Magic Foods, Inc., an Iowa corporation. 1.106 "Michigan IDBs" means industrial development bonds relating to Michigan Sugar facilities in Sebewaing, Croswell, Carrollton, and Caro, Michigan. 1.107 "Michigan IDB Documents" means the loan agreements, trust indentures, guaranties, and all other instruments executed in connection with the issuance of industrial development bonds related to Michigan Sugar. 1.108 "Michigan Sugar" means Michigan Sugar Company, a Michigan corporation. 1.109 "Necessary Vendor Claim" means any Unsecured Claim arising from or with respect to the sale and delivery of essential goods or the rendition of essential services to any of the Debtors prior to the Petition Date by a creditor (a) who is designated as a necessary vendor by the Debtors in an exercise of their business judgment A-12 and (b) who agrees in writing to continue to supply goods and render services to the Reorganized Debtors after the Effective Date on terms and conditions satisfactory to the Reorganized Debtors (excluding Deemed Allowed Prepetition Beet Grower Claims). 1.110 "New Common Stock" means the new voting common stock to be issued by Reorganized Imperial pursuant to the Plan, including those shares which may be purchased through the exercise of a Reorganized Imperial Warrant or Management Option. 1.111 "Non-Debtor Affiliate" means any wholly-owned subsidiary of any of the Debtors which is not itself the subject of a case under the Bankruptcy Code. 1.112 "Non-Participating Lender Note" means the note to be issued to holders of Allowed Class 2D Secured Claims in the form attached as Annex 5 to the Plan providing for, among other terms, annual payments, interest at the rate of 12% per annum, maturity on the tenth (10th) anniversary of the Effective Date, amortization on a twenty (20) year schedule, and continuation of the existing liens and security interests of such Non-Participating Lender on a pari passu basis with the interests of Participating Lenders in the same collateral; provided, however, that so long as no default has occurred and continuing, no prepayments shall be made on such note from sales of collateral. 1.113 "Non-Participating Lenders" means those lenders under the Revolving Credit Facility who have elected not to participate as lenders under the Amended Senior Credit Agreement and/or DIP Facility. 1.114 "Non-Qualified Benefits Claim" means a Deferred Compensation Claim or SERP Claim. 1.115 "Other Secured Claims" means Secured Claims other than IDB Claims (if applicable) and Bank Group Claims. 1.116 "Participating Lenders" means those lenders under the Revolving Credit Facility who elect to participate as lenders under the Amended Senior Credit Agreement and/or DIP Facility. 1.117 "Person" means any person, individual, partnership, corporation, limited liability company, joint venture company, association or other entity or being of whatever kind, whether or not operating or existing for profit, including, but not limited to, any "person" as such term is defined in section 101(41) of the Bankruptcy Code, but excluding any Governmental Unit as defined therein. 1.118 "Petition Date" means January 16, 2001. 1.119 "Phoenix" means Phoenix Packaging Corporation, a Delaware corporation. 1.120 "PIK Obligation" means an obligation of a Debtor to a beet grower under a payment-in-kind price support program operated under the auspices of the USDA. 1.121 "Plan" means this Second Amended and Restated Joint Plan of Reorganization, and any amendments thereto made in accordance with the Bankruptcy Code. 1.122 "Plan Documents" means the Plan, the Disclosure Statement, the Amended Senior Credit Agreement, the Warrant Agreement, the Reorganized Imperial Long- Term Incentive Plan, the Non-Participating Lender Note, and all documents, attachments and exhibits thereto, and other documents that aid in effectuating the Plan. 1.123 "Postpetition Beet Grower Obligation" means those obligations under contracts entered into on or after the Petition Date between one or more of the Debtors and a grower of sugar beets pursuant to which such grower is to deliver or supply sugar beets to the Debtors, provided, however, that such term does not include contractual obligations between the Michigan Beet Growers Inc. and a beet grower. 1.124 "Priority Claim" means any Claim (other than an Administrative Claim or a Priority Tax Claim) to the extent such Claim is entitled to a priority in payment under section 507(a) of the Bankruptcy Code. A-13 1.125 "Priority Tax Claim" means any Claim to the extent that such Claim is entitled to a priority in payment under section 507(a)(8) of the Bankruptcy Code. 1.126 "Proof of Claim" means any proof of claim filed with the Bankruptcy Court or its duly appointed claims agent with respect to a Debtor pursuant to Bankruptcy Rules 3001 or 3002. 1.127 "Pro Rata" means with respect to Claims, the proportion that the amount of an Allowed Claim in a particular Class bears to the aggregate amount of all Claims in such class, exclusive of Disallowed Claims, but including Disputed Claims and, with respect to Interests, the proportion that the number of shares of Existing Common Stock of a holder of Existing Common Stock bears to the aggregate amount of Existing Common Stock. 1.128 "Ragus" means Ragus Holdings, Inc., a Delaware corporation. 1.129 "Receivables Purchase Agreement" means that Receivables Purchase Agreement dated as of June 10, 1999 as amended, restated, supplemented or otherwise modified from time to time among Imperial, Imperial Securitization Corporation, Imperial Distributing, Fairway Finance Corporation, and Nesbitt Burns Securities, Inc. 1.130 "Rejected Executory Contracts" means (a) any and all executory contracts and unexpired leases which are listed on the "Schedule of Rejected Executory Contracts" attached as Exhibit D to the Disclosure Statement, all of which contracts and leases shall be rejected on the Effective Date, (b) any and all such contracts and leases rejected by order of the Bankruptcy Court prior to the Effective Date, (c) any and all such contracts and leases which are the subject of any motion to reject pending on the Confirmation Date that is ultimately granted by Final Order, and (d) any executory contract giving rise to a right to purchase, sell, or subscribe to Interests in the Debtors. 1.131 "Reorganization Cases" means the cases of the Debtors under chapter 11 of the Bankruptcy Code. 1.132 "Reorganized Debtors" means any one or more of the Debtors on and after the Effective Date. 1.133 "Reorganized Imperial" means Imperial on and after the Effective Date. 1.134 "Reorganized Imperial Long-Term Incentive Plan" means the Imperial Sugar Company Long-Term Incentive Plan attached as Annex 2 to the Plan. 1.135 "Reorganized Imperial Warrant" means the freely transferable right to purchase one share of New Common Stock exercisable during the period commencing on the Effective Date and continuing through the seventh (7th) anniversary of the Effective Date at a price as set forth in Article 8.2 of the Plan. 1.136 "Retained Avoidance Action" means a cause of action of any Debtor under sections 544, 545, 547, 548, 549, and/or 550 of the Bankruptcy Code identified on Exhibit F to the Disclosure Statement or on any supplemental list filed with the Bankruptcy Court prior to the date of the Confirmation Hearing or asserted in a pleading filed prior to the date of the Confirmation Hearing. 1.137 "Retiree Insurance Benefit Claim" means a Claim arising from or related to "retiree benefits" as defined in section 1114(a) of the Bankruptcy Code. 1.138 "Revolving Credit Facility" means the revolving credit facility existing as of the Petition Date under the Senior Credit Agreement. A-14 1.139 "Savannah Foods" means Savannah Foods & Industries, Inc., a Delaware corporation. 1.140 "Savannah Industrial" means Savannah Foods Industrial, Inc., a Delaware corporation. 1.141 "Savannah International" means Savannah International Company, a Delaware corporation. 1.142 "Savannah Investment" means Savannah Investment Company, a Delaware corporation. 1.143 "Savannah Molasses" means Savannah Molasses & Specialties Company, a Delaware corporation. 1.144 "Savannah Packaging" means Savannah Packaging Company, a Delaware corporation. 1.145 "Savannah Retirement Plan" means the tax-qualified benefit plan in force on the Petition Date covering full-time non-union employees of Savannah Foods and its subsidiaries. 1.146 "Savannah Sugar" means Savannah Sugar Refining Corporation, a Delaware corporation. 1.147 "Savannah Total Invert" means Savannah Total Invert Company, a Delaware corporation. 1.148 "Schedules" means the Schedules, Statements and Lists filed by the Debtors with the Bankruptcy Court pursuant to Bankruptcy Rule 1007, if such documents are filed, as they have been and may be amended or supplemented from time to time. 1.149 "SEC" means the United States Securities and Exchange Commission. 1.150 "SERP Claim" means an Unsecured Claim arising under a non-tax qualified supplemental executive retirement plan between the Debtors and selected employees or former employees and/or selected directors or former directors providing for benefits upon attainment of retirement age or actual retirement age or separation from the company. 1.151 "Secured Claim" means any Claim that is (a) secured in whole or part, as of the Petition Date, by a Lien which is valid, perfected and enforceable under applicable law and is not subject to avoidance under the Bankruptcy Code or applicable non-bankruptcy law, or (b) subject to setoff under section 553 of the Bankruptcy Code, but, with respect to both (a) and (b) above, only to the extent of the value, net of any senior Lien, of the Estates' interests in the assets or property securing any such Claim or the amount subject to setoff, as the case may be. 1.152 "Senior Credit Agreement" means the Amended and Restated Credit Agreement dated as of December 22, 1997 among Imperial (formerly known as Imperial Holly Corporation), as Borrower, several lenders, Lehman Brothers, Inc., as Arrangers, Lehman Brothers Commercial Paper, Inc., as Syndication Agent, and Harris Trust & Savings Bank, as Administrative and Collateral Agent, as amended from time to time. 1.153 "Tax-Qualified Plan" means a tax-qualified plan under ERISA, including the Imperial Retirement Plan and Savannah Retirement Plan, providing retirement, medical, or other employment-related benefits to current or former employees of the Debtors. 1.154 "Term Sheet" shall mean that term sheet attached as Annex 1 to the Plan for restructuring obligations under the Senior Credit Agreement. 1.155 "Tranche A Term Lenders" means lenders providing Tranche A Term Loans under the Senior Credit Agreement. 1.156 "Tranche A Term Loans" means the term loans existing on the Petition Date made under Tranche A of the Senior Credit Agreement. A-15 1.157 "Tranche B Term Lenders" means lenders providing Tranche B Term Loans under the Senior Credit Agreement. 1.158 "Tranche B Term Loans" means the term loans existing on the Petition Date made under Tranche B of the Senior Credit Agreement. 1.159 "United States Trustee" means the United States Trustee for the District of Delaware. 1.160 "Unsecured Claim" means any Claim (regardless of whether such Claim is covered by insurance) that is neither secured nor entitled to priority under the Bankruptcy Code or by a Final Order of the Bankruptcy Court, including, but not limited to: (a) any claim arising from the rejection of an executory contract or unexpired lease under section 365 of the Bankruptcy Code, (b) any portion of a Claim to the extent the value of the holder's interest in the applicable Estate's interest in the property securing such Claim is less than the amount of the Claim, or to the extent that the amount of the Claim subject to setoff is less than the amount of the Claim, as determined pursuant to section 506(a) of the Bankruptcy Code, and (c) any Inactive Non-Qualified Benefits Claim. 1.161 "Waived Arrearage Amount" means the amount in excess of $3,000 per month for each month prior to the Effective Date that a Debtor was in arrears to the holder of an Inactive Non-Qualified Benefits Claim who, though not otherwise entitled to be treated under Class 7B of the Plan, elects on such holder's Ballot to be treated under Class 7B. 1.162 "Warrant Agreement" means the Warrant Agreement, substantially in the form attached as Annex 6 to the Plan, to be executed on the Effective Date. 1.163 "Wholesome Sweeteners" means Wholesome Sweeteners L.L.C., a Florida limited liability corporation. 1.164 "Wholesome Sweeteners Group" means Wholesome Sweeteners Group, Ltd., a Florida corporation. ARTICLE 2 Treatment of Administrative Claims and Priority Tax Claims 2.1 Administrative Claims. (1) Each holder of an Allowed Administrative Claim (except any holder that agrees to different treatment) shall receive the Allowed Amount of its Administrative Claim, in Cash, in full satisfaction, settlement, release, extinguishment, and discharge of such Claim, on the Effective Date; provided, however, that Allowed Administrative Claims representing (1) postpetition liabilities incurred in the ordinary course of business by any of the Debtors, (2) postpetition contractual liabilities arising under loans or advances to any of the Debtors, whether or not incurred in the ordinary course of business, and (3) prepetition obligations authorized by the Bankruptcy Court and agreed by the Debtors to be paid in the ordinary course of the Debtors' business but which have not yet become due and payable, including Deemed Allowed Prepetition Beet Grower Claims (unless the holder agrees to other lesser treatment) shall be paid by the Reorganized Debtors in accordance with the terms and conditions of the agreements establishing or giving rise to such liabilities. (2) To the extent not previously satisfied in accordance with their contractual terms prior to the Effective Date, all Postpetition Beet Grower Obligations shall become binding and fully enforceable obligations of the Reorganized Debtors and paid in full in accordance with their terms as such obligations become due. Nothing in this Plan shall limit, restrict, or otherwise adversely affect any right or remedy available to the obligee on a Postpetition Beet Grower Obligation either by contract or under applicable non-bankruptcy law. A-16 2.2 Priority Tax Claims. Each Allowed Priority Tax Claim shall be paid (i) in deferred cash payments commencing on the tenth (10th) Business Day after the later of the Effective Date and the date such Claim is Allowed, or as soon thereafter as is practicable, with final payment being made on the sixth (6th) anniversary of the date of assessment of such Claim, with simple interest from the Effective Date at the rate in effect under 26 U.S.C. (S) 6621(b)(3) on the Confirmation Date; provided that any such Claim may be prepaid without penalty or premium at any time in whole or from time to time in part at the option of the Debtors or the Reorganized Debtors, as the case may be, with simple interest from the later of the Effective Date or the date on which the Claim is allowed at the rate in effect under 26 U.S.C. (S) 6621(b)(3) on the Confirmation Date, or (ii) as the holder of such Allowed Priority Tax Claim and the Debtors or the Reorganized Debtors, as the case may be, otherwise may agree. ARTICLE 3 Classification of Claims and Interests 3.1 Generally. Claims and Interests against the Debtors shall be treated in accordance with the classification scheme set forth in this Article 3. A Claim or Interest is classified in a particular Class only to the extent that the Claim or Interest qualifies within the description of the Class and shall be classified in a different Class to the extent the Claim or Interest qualifies within the description of that different Class. 3.2 Unclassified Claims. In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims and Priority Tax Claims are not classified and are excluded from the following Classes and shall be paid in accordance with the provisions set forth in Article 2 of the Plan. 3.3 Classes. The following constitute the Classes of Claims against and Interests in the Debtors: (1) Class 1--Allowed Priority Claims. Class 1 consists of all Allowed Priority Claims against the Debtors. (2) Class 2A--Allowed Secured Claims of Tranche A Term Lenders. Class 2A consists of all Allowed Secured Claims of Tranche A Term Lenders, including Guaranty Obligations. (3) Class 2B--Allowed Secured Claims of Tranche B Term Lenders. Class 2B consists of all Allowed Secured Claims of Tranche B Term Lenders, including Guaranty Obligations. (4) Class 2C--Allowed Secured Claims of Participating Lenders Under Revolving Credit Facility. Class 2C consists of all Allowed Secured Claims of Participating Lenders under the Revolving Credit Facility, including Guaranty Obligations. (5) Class 2D--Allowed Secured Claims of Non-Participating Lenders Under Revolving Credit Facility. Class 2D consists of all Allowed Secured Claims of Non-Participating Lenders under the Revolving Credit Facility, including Guaranty Obligations. (6) Class 3--Allowed Other Secured Claims. Class 3 consists of all Allowed Other Secured Claims, each of which will be within a separate subclass and which shall be deemed a separate Class for all purposes. (7) Class 4--Allowed IDB Claims. Class 4 consists of all Allowed IDB Claims against the Debtors existing on the Petition Date. (8) Class 5A--Allowed Unsecured Claims. Class 5A consists of all Allowed Unsecured Claims against any of the Debtors' Estates, except for Unsecured Claims treated in any other Class. A-17 (9) Class 5B--Inactive Non-Qualified Benefits Claims. Class 5B consists of all Inactive Non-Qualified Benefits Claims other than Inactive Non- Qualified Benefits Convenience Claims treated under Class 7B of the Plan. (10) Class 6A--Allowed Necessary Vendor Claims. Class 6A consists of Allowed Necessary Vendor Claims against any of the Debtors' Estates. (11) Class 6B-- Allowed Retiree Insurance Benefits Claims. Class 6B consists of all Allowed Retiree Insurance Benefits Claims against one or more of the Debtors' Estates. (12) Class 7A--Allowed Convenience Claims. Class 7A consists of all Allowed Convenience Claims. (13) Class 7B--Allowed Inactive Non-Qualified Benefits Convenience Claims. Class 7B consists of all Allowed Inactive Non-Qualified Benefits Convenience Claims. (14) Class 8--Allowed Intercompany Claims. Class 8 consists of all Allowed Intercompany Claims. (15) Class 9--Interests in Imperial. Class 9 consists of all Interests in Imperial. ARTICLE 4 Treatment of Claims and Interests Claims and Interests shall be treated in the manner set forth in this Article 4. 4.1 Treatment of Unclassified Claims. Each holder of an Allowed Administrative Claim or an Allowed Priority Tax Claim shall receive the treatment set forth in Article 2 of the Plan. 4.2 Treatment of Classes of Claims and Interests. (1) Class 1--Priority Claims. On the Distribution Date, each holder of an Allowed Priority Claim against the Debtors shall receive either (a) the Allowed Amount of its Priority Claim, in Cash or (b) such other, lesser treatment as may be agreed to in writing between such holder and the Debtors or Reorganized Debtors. This Class is unimpaired. (2) Class 2A--Claims of Tranche A Term Lenders. Allowed Secured Claims of Tranche A Term Lenders will be satisfied pursuant to the terms of the Amended Senior Credit Agreement. This Class is impaired. (3) Class 2B--Claims of Tranche B Term Lenders. Allowed Secured Claims of Tranche B Term Lenders will be satisfied pursuant to the terms of the Amended Senior Credit Agreement. This Class is impaired. (4) Class 2C--Claims of Participating Lenders under the Revolving Credit Facility. Allowed Secured Claims of lenders under the Revolving Credit Facility who elect to be Participating Lenders will be satisfied through payments pursuant to the terms of an Amended Senior Credit Agreement. This Class is impaired. (5) Class 2D--Claims of Non-Participating Lenders under the Revolving Credit Facility. Allowed Secured Claims of lenders under the Revolving Credit Facility who elect to be Non-Participating Lenders will be satisfied through the Non-Participating Lender Note to be issued on the Effective Date to such Non-Participating Lender. This Class is impaired. (6) Class 3--Other Secured Claims. Each holder of an Allowed Other Secured Claim against a Debtor shall retain, unaltered, the legal, equitable, and contractual rights (including, but not limited to, any Liens that secure such Allowed Secured Claim) to which such Allowed Secured Claim entitles such holder and shall be paid or satisfied by the applicable Debtor in accordance with applicable law or agreement. Any defaults on a secured obligation to a Governmental Unit shall be cured on the Effective Date or as soon thereafter as practicable. This Class is unimpaired. A-18 (7) Class 4--IDB Claims. Each holder of an Allowed IDB Claim against a Debtor shall retain, unaltered, the legal, equitable, and contractual rights (including, but not limited to, any Liens that secure such Allowed IDB Claim) to which the documents giving rise to such Allowed IDB Claim entitles such holder. All uncured and continuing defaults by the Debtors on a IDB Claim, if any, shall be cured on the Effective Date, including any defaults in payments of interest, premium, principal, fees and expenses (including fees and expenses under applicable documents). Notwithstanding anything in this Plan to the contrary (including, but not limited to, the injunctions, discharges, and releases provided in Article 10), any guaranty issued by one Debtor of another Debtor's obligations in respect to an IDB Obligation shall remain in full force and effect in accordance with its original terms following Confirmation and the occurrence of the Effective Date, and the rights granted under applicable documents to the holder of an Allowed IDB Claim against such guarantor pursuant to such guaranty shall not be abrogated or impaired in any way by the provisions of this Plan or the Confirmation of the Plan. In addition, with respect to industrial development bonds giving rise to Michigan IDB Claims, the terms and conditions of the Michigan IDB Documents shall continue to govern any assumption and/or assignment of the Michigan IDBs in connection with an assignment, sale or lease of Michigan Sugar or one of its facilities and such assumption and/or assignment shall be permitted only to the extent provided under the Michigan IDB Documents, and following any assignment, sale or lease of Michigan Sugar or any of its facilities, Imperial shall remain obligated under the guaranties it previously granted of Michigan Sugar's obligations in respect to the Michigan IDBs in accordance with the terms of such guaranties. This Class is unimpaired. (8) Class 5A--General Unsecured Claims. (a) Except to the extent that a holder of an Allowed Class 5A Unsecured Claim has agreed to receive other lesser treatment, including the treatment in subsection (b) below, such holder shall receive a Pro Rata portion of Class 5A/5B New Common Stock in full satisfaction of such Class 5A Unsecured Claim; provided, however, that Reorganized Imperial will not issue or distribute any fractional shares of New Common Stock and in lieu of such fractional share shall round the number of fractional shares to which the holder of an Allowed Claim treated under Class 5A or Class 5B of the Plan otherwise would be entitled to the nearest whole number and, after rounding, include in the distribution to such holder from the pool of Class 5A/5B New Common Stock such number of additional shares of New Common Stock, if any. (b) Notwithstanding the treatment afforded in subsection (a), a holder of a Claim treated under Class 5A of the Plan, other than a Bondholder Claim, may elect to receive a distribution of Cash on the Distribution Date equal to ten percent (10%) of the Allowed amount of such Claim in lieu of other distributions under the Plan by checking the appropriate box on such holder's Ballot. This Class is impaired. (9) Class 5B--Inactive Non-Qualified Benefits Claims. (a) Except to the extent treated under Class 7B, each Inactive Non-Qualified Benefits Claim shall be treated under Class 5B of the Plan and satisfied in full through a Pro Rata distribution of Class 5A/5B New Common Stock on the Distribution Date, such distribution to be made on a Pro Rata basis with distributions to holders of Claims treated under Class 5A of the Plan; provided, however, that Reorganized Imperial will not issue or distribute any fractional shares of New Common Stock and in lieu of such fractional share shall round the number of fractional shares to which the holder of an Allowed Claim under Class 5A or Class 5B of the Plan otherwise would be entitled to the nearest whole number and, after rounding, include in the distribution to such holder from the pool of Class 5A/5B New Common Stock such number of additional shares of New Common Stock, if any. (b) Notwithstanding the foregoing, the holder of an Inactive Non-Qualified Benefits Claim may make an election on such holder's Ballot to receive, in lieu of the treatment provided in Article 4.2(9)(a), (i) an Inactive SERP/DC Note and (ii) a Cash distribution on the Distribution Date equal to ten percent (10%) of the amount of the Allowed Inactive Non-Qualified Benefits Claim of such holder; provided that the aggregate of distributions A-19 of Cash under subpart (ii) of this provision to holders electing such treatment shall be limited to a total of $3,000,000, with such $3,000,000 to be distributed on a Pro Rata basis if the aggregate of such distributions is greater than $3,000,000. This Class is impaired. (10) Class 6A--Necessary Vendor Claims. To the extent any Allowed Class 6A Necessary Vendor Claim has not been paid or satisfied by performance in full prior to the Effective Date, Reorganized Imperial shall pay such Claim in full in Cash, on the Distribution Date if such Claim is matured, or, if such Claim is not matured, in accordance with the contractual terms or arrangements between the holder of such Claim and the contracting Debtor(s) or, alternatively, at the election of the Debtors, on such other terms as permit such Claim to be unimpaired within the meaning of section 1124 of the Bankruptcy Code. Allowed Class 6A Necessary Vendor Claims which become Allowed after the Effective Date shall be paid within fifteen (15) days after entry of a Final Order allowing such Claim. This Class is unimpaired. (11) Class 6B--Retiree Insurance Benefit Claims. Each Allowed Retiree Insurance Benefit Claim shall be unimpaired and each holder shall be paid in accordance with the provisions of section 1114(e) of the Bankruptcy Code. All uncured and continuing defaults by the Debtors in the payment of such Claims, either before or after commencement of the Reorganization Cases, shall be cured on the Distribution Date. This Class is unimpaired. (12) Class 7A--Convenience Claims. Each holder of an Allowed Convenience Claim against any of the Debtors shall receive Cash on the Distribution Date equal to the amount of such Allowed Convenience Claim. Allowed Convenience Claims which become Allowed after the Effective Date shall be paid within fifteen (15) days after entry of a Final Order allowing such Claim. Election by the holder of an Allowed Unsecured Claim otherwise treated under Class 5A of the Plan to reduce the Claim of such holder to $5,000 and to receive distribution as a Class 7A Convenience Claim shall constitute acceptance of the Plan and a waiver of the right to recover any amount in excess of $5,000 against any Person who otherwise might be liable for such sum. This Class is unimpaired. (13) Class 7B--Inactive Non-Qualified Benefits Convenience Claims. Notwithstanding any contractual provision or applicable non-bankruptcy law that entitles the holder of any Allowed Inactive Non-Qualified Benefits Convenience Claim to demand or receive accelerated payment of such Claim after the occurrence of a default, each Allowed Inactive Non-Qualified Benefits Convenience Claim shall be unimpaired, and the legal, equitable, and contractual rights to which the holder thereof is entitled shall be left unimpaired by this Plan within the meaning of section 1124 of the Bankruptcy Code; provided that the holder of an Allowed Inactive Non-Qualified Benefits Convenience Claim may elect voluntarily to have its Claim treated in the same manner, and subject to the same conditions and limitations, as provided for in Article 4.2(9)(a) or (b) of the Plan by delivering a written election to the Debtors within fifteen (15) days of entry of the Confirmation Order. Any defaults by the Debtors in the payment of such Claims, either before or after the commencement of the Reorganization Cases, other than a default of the kind specified in section 365(b)(2) of the Bankruptcy Code, shall be cured on the Effective Date, except that the Reorganized Debtors shall have no obligation to pay the holder of an Inactive Non-Qualified Benefits Claim any Waived Arrearage Amount. All such sums shall be deemed waived by the holder of such Claim in its election to receive Inactive Non-Qualified Benefits Convenience Claim treatment. Treatment of Claims in Class 7B shall not be affected by the rejection of the Plan by any other Class under the Plan. This Class is unimpaired. (14) Class 8--Intercompany Claims. Intercompany Claims shall be paid or otherwise treated by the Reorganized Debtors in accordance with the ordinary business practices of the Debtors prior to the Petition Date. This Class is unimpaired. (15) Class 9--Interests in Imperial. In the event that holders of Interests in Imperial, and holders of Allowed Class 5A and Class 5B Unsecured Claims, vote as Classes to accept the Plan, each such holder of Interests shall receive for each share of Existing Common Stock owned by such holder on the Distribution Record Date distribution from the Disbursing Agent on the Distribution Date of a Pro Rata share of Class 9 New Common Stock and Class 9 Warrants; provided, however, that Reorganized Imperial will not issue any fractional shares of Class 9 New Common Stock or fractional Class 9 Warrants to holders of Existing Common Stock and (a) in lieu A-20 of such fractional shares shall round the number of fractional shares to which the holder of an Allowed Class 9 Interest otherwise would be entitled to the nearest whole number and, after such rounding, include in the distribution to such holder from the pool of Class 9 New Common Stock such number of additional shares of New Common Stock, if any, and (b) in lieu of fractional warrants shall sell, or direct such Person who may be appointed from time to time to act as exchange agent to sell, the aggregate of such fractional Reorganized Imperial Warrants and sell the resulting whole Reorganized Imperial Warrants on account of such Persons otherwise entitled to receive fractional Reorganized Imperial Warrants under the Plan. Such Persons thereafter will be entitled to receive their allocable portion of the net proceeds of the sales. All sales will be effectuated through open market transactions on the national securities exchange on which the Reorganized Imperial Warrants are listed. Reorganized Imperial Warrants shall be distributed to the holders of the Existing Common Stock as they appear in the records of the transfer agent as of the Distribution Record Date. Notwithstanding the foregoing, in the event that either Class 5A or Class 5B reject the Plan, the Debtors reserve the right to seek to confirm the Plan under Section 1129(b) by amending the Plan to eliminate any distributions to Class 9. ARTICLE 5 Treatment of Executory Contracts and Unexpired Leases 5.1 Assumption and Rejection of Unexpired Leases and Executory Contracts. On and effective as of the Effective Date, all executory contracts and unexpired leases listed on the Schedules filed by the Debtors (including any amendments, revisions, or modifications thereto), excluding Rejected Executory Contracts, will be assumed, subject to the condition imposed under Article 5.2(2) with respect to certain executory Deferred Compensation Plans and supplemental executive retirement plans. Executory contracts and leases entered into after the Petition Date will be performed by the Debtors and Reorganized Debtors in the ordinary course of business. 5.2 Continuation of Employee Compensation and Benefit Programs. (1) Tax-Qualified Plans. All Tax-Qualified Plans of the Debtors, including the Imperial Retirement Plan and Savannah Retirement Plan, shall continue in full force and effect on the Effective Date as obligations of the Reorganized Debtors, except as such plans may be modified, amended, or terminated in accordance with their terms or applicable policies, procedures or law. (2) Deferred Compensation and SERP Obligations. On the Effective Date, the Debtors shall be deemed to have assumed the Deferred Compensation Plans and supplemental executive retirement plans giving rise to Deferred Compensation Claims or SERP Claims by persons who were officers or who were employed by the Debtors as of the Confirmation Date; provided that this provision shall apply only if the holder of such Claim agrees in writing that all payments to the holders of such Claim of retention bonuses under the Management Retention Plan shall constitute and be applied as a credit against sums owing in the future under such Deferred Compensation Plan or supplemental executive retirement plan, as the case may be. All such Deferred Compensation Plans and supplemental executive retirement plans of persons not willing to agree in writing to the terms set forth in the preceding sentence shall be deemed rejected as of the Effective Date. 5.3 Rejection Damages Claims. Any Claims arising out of the rejection of an executory contract or unexpired lease must be filed with the Claims Agent no later than the earlier of (a) thirty (30) days after the entry of the Confirmation Order, or (b) thirty (30) days after the date of any Final Order approving a Debtor's rejection of such contract or lease. Any Claim not so filed shall be forever barred and may not be asserted against any of the Debtors, the Reorganized Debtors, or their properties or their Estates. Each Claim resulting from such rejection shall constitute a Class 3 Other Secured Claim if it is a Secured Claim or, otherwise, a Class 5A Unsecured Claim or Class 7A Convenience Claim, as the case may be. 5.4 Assumption Claims. All cure and compensation payments which may be required by section 365(b)(1) and (2) of the Bankruptcy Code under any executory contracts and unexpired leases which are assumed shall constitute Administrative Claims and treated under section 2.1 of the Plan; provided, however, in the event of a A-21 dispute regarding the amount of any such payments, the cure of any other defaults, the ability of the Reorganized Debtors to provide adequate assurance of future performance or any other matter pertaining to assumption, the Reorganized Debtors shall make such payments and cure such other defaults and provide adequate assurance of future performance only following the entry of a Final Order resolving such dispute. The Debtors may provide prior notice in writing to a party to an executory contract or unexpired lease to be assumed hereunder setting forth the amount of any cure or compensation payments it intends to pay and any adequate assurance of future performance it intends to provide. If a party to such executory contract or unexpired lease has not filed an appropriate pleading with the Bankruptcy Court on or before the tenth (10th) day after mailing of such notice disputing the terms for assumption set forth in the Debtors' notice and requesting a hearing thereon, then such party shall be deemed to have accepted such terms for assumption and waived its right to dispute such matters. ARTICLE 6 Acceptance or Rejection of the Plan 6.1 Each Impaired Class Entitled to Vote Separately. The holders of Claims or Interests in one or more impaired Class of Claims or Interests shall be entitled to vote separately to accept or reject the Plan. 6.2 Acceptance By Impaired Classes of Claims. Pursuant to section 1126(c) of the Bankruptcy Code, an impaired Class of Claims shall have accepted the Plan if (a) the holders of at least two-thirds in dollar amount of the Allowed Claims actually voting in such Class (other than Claims held by any holder designated pursuant to section 1126(e) of the Bankruptcy Code) have voted to accept the Plan and (b) more than one-half in number of such Allowed Claims actually voting in such Class (other than Claims held by any holder designated pursuant to section 1126(e) of the Bankruptcy Code) have voted to accept the Plan. 6.3 Acceptance By Impaired Class of Interests. Pursuant to section 1126(d) of the Bankruptcy Code, an impaired Class of Interests shall have accepted the Plan if the holders of at least two-thirds in dollar amount of the Allowed Interests actually voting in such Class (other than Interests held by any holder designated pursuant to section 1126(e) of the Bankruptcy Code) have voted to accept the Plan. 6.4 Presumed Acceptance of Plan. Classes 1, 3, 4, 6A, 6B, 7A, 7B, and 8 are not impaired. Under section 1126(f) of the Bankruptcy Code, the holders of Claims in such Classes are conclusively presumed to have voted to accept the Plan. ARTICLE 7 Conditions to Confirmation and Effectiveness; Required Notices 7.1 Conditions to Confirmation. Confirmation of the Plan shall not occur unless each of the following conditions has been satisfied or waived, in writing, by the Debtors with the consent of the Creditors Committee: (1) Confirmation Date. The Confirmation Date shall be not later than August 31, 2001. (2) Confirmation Order. The Bankruptcy Court shall have made such findings and determinations regarding the Plan as shall enable the entry of the Confirmation Order, and any other order entered in conjunction therewith, in form and substance acceptable to the Debtors. (3) Ability to Perform Postpetition Beet Grower Obligations. The Debtors shall have performed all matured and currently outstanding Postpetition Beet Grower Obligations and demonstrated financial wherewithal to perform all Postpetition Beet Grower Obligations which mature and become due after the Effective Date, except as those obligations may be altered by agreement with a beet grower. 7.2 Conditions to Effectiveness. Notwithstanding any other provision of the Plan or the Confirmation Order, the Effective Date of the Plan shall not occur unless and until each of the following conditions has been satisfied or, if applicable, waived, in writing, by the Debtors with the consent of the Creditors Committee. A-22 (1) Confirmation Order. The Confirmation Order shall have become a Final Order; provided, however, that the Effective Date may occur at a point in time when the Confirmation Order is not a Final Order at the option of the Debtors, with the consent of the Creditors Committee, unless the effectiveness of the Confirmation Order has been stayed or vacated, in which case the Effective Date shall be the first Business Day immediately following the expiration or other termination of any stay of effectiveness of the Confirmation Order. (2) Plan Documents. The Amended and Restated Articles of Incorporation of Reorganized Imperial, the Amended Senior Credit Agreement and the documents required pursuant thereto, the Warrant Agreement, the Reorganized Imperial Long-Term Incentive Plan, and any other Plan Documents necessary or appropriate to implement the Plan, shall have been executed, delivered and, where applicable, filed with the appropriate governmental authorities. (3) United States Trustee's Fees. The fees of the United States Trustee then owing by the Debtors shall have been paid in full. (4) Satisfaction of Initial Funding Conditions. The initial funding conditions in Section V of the Term Sheet shall have been satisfied or waived by Participating Lenders. (5) Replacement Financing. The Debtors shall have entered into a credit facility or receivables purchase agreement satisfactory to replace the existing Receivables Purchase Agreement and provide for the working capital needs of the Reorganized Debtors in conjunction with exit financing under the Amended Senior Credit Agreement. 7.3 Notice to Bankruptcy Court. Promptly after the Effective Date, the Reorganized Debtors shall file with the clerk of the Bankruptcy Court a notice that the Plan has become effective; provided, however, that failure to file such notice shall not affect the effectiveness of the Plan or the rights and substantive obligations of any entity hereunder. ARTICLE 8 Description of Securities Issued Under Plan 8.1 New Common Stock. (1) Authorization. The charter of Reorganized Imperial shall be amended on the Effective Date to authorize the issuance of 50,000,000 shares of New Common Stock. Of such authorized shares, 9,800,000 shares shall be issued and distributed on the Distribution Date to the holders of Allowed Claims under Class 5A and Class 5B of the Plan (except for those holders of Inactive Non- Qualified Benefits Claims electing to forgo such treatment in accordance with the provisions of Article 4.2(9) of the Plan); and 200,000 shares shall be issued and distributed to the holders of Interests under Class 9 of the Plan, subject to the provisions of the Plan and the Bankruptcy Code. (2) No Par Value. New Common Stock shall be without par value. (3) Rights. New Common Stock shall have such rights with respect to dividends, liquidation, voting, and other matters as are set forth in the Amended and Restated Articles of Incorporation of Reorganized Imperial and as are or may be otherwise provided by Texas law. 8.2 Reorganized Imperial Warrants. (1) Issuance. Subject to Confirmation of the Plan and compliance with the requirements of the Bankruptcy Code and the terms of the Plan, Reorganized Imperial shall issue Class 9 Warrants to the holders of Class 9 Interests on the Distribution Date. (2) Term. Reorganized Imperial Warrants shall be exercisable at any time from the Effective Date to and through the seventh (7th) anniversary of the Effective Date. A-23 (3) Transferability. Subject to applicable law, Reorganized Imperial Warrants shall be freely transferable from date of issuance without restriction. (4) Initial Exercise Price. Reorganized Imperial Warrants will entitle the holders thereof to acquire shares of New Common Stock at an initial per share exercise price which is equal to the aggregate Allowed Amount of Class 5A and Class 5B Claims held by holders receiving New Common Stock under the Plan divided by 9,800,000; provided, however, that if at six (6) months after the Effective Date all Class 5A and Class 5B Claims of Persons receiving New Common Stock under the Plan have not been finally Allowed, then the per share exercise price shall be equal to the sum of the aggregate Allowed Amount of Class 5A and Class 5B Claims held by holders receiving New Common Stock and aggregate amount of Disputed Claims of Class 5A and Class 5B Claims held by holders to receive New Common Stock under the Plan (subject to claims allowance), divided by 9,800,000. 8.3 Management Options. (1) Effectiveness. On the Effective Date, the Reorganized Imperial Long-Term Incentive Plan shall become effective without necessity of further action by the board of directors of Reorganized Imperial or by the holders of New Common Stock. (2) Grants. Management Options entitling holders to acquire an aggregate of 1,234,568 shares of New Common Stock will be available for grant and distribution to management of the Reorganized Debtors by the compensation committee of the board of directors of Reorganized Imperial (or such other committee designated by the board of directors of Reorganized Imperial to administer the Reorganized Imperial Long-Term Incentive Plan) in such personal grant amounts as determined to be appropriate by such committee. Of these Management Options, options representing the right to acquire not less than sixty-five percent (65%) and not more than eighty percent (80%) of the total shares available under the Imperial Stock Option Plan shall be granted exclusively to Initial Management. All other Management Options (including options for shares available as a result of the non-exercise of options granted to Initial Management) shall be granted to current or future management of the Reorganized Debtors in accordance with the terms of the Reorganized Imperial Long-Term Incentive Plan, as deemed appropriate by such compensation committee or other committee designated by the board of directors of Reorganized Imperial to administer the Reorganized Imperial Long-Term Incentive Plan. (3) Initial Exercise Price. Management Options shall be exercisable at a price determined by the compensation committee of the board of directors of Reorganized Imperial (or such other committee designated by the board of directors of Reorganized Imperial to administer the Reorganized Imperial Option Plan) in accordance with the terms thereof; provided, however, that the initial exercise price of any Management Options granted to the Initial Management as contemplated by subsection (2) above shall not exceed the lesser of (i) $9.00 per share or (ii) the initial exercise price determined by the compensation committee of the board of directors of Reorganized Imperial (or such other committee designated by the board of directors of Reorganized Imperial to administer the Reorganized Stock Option Plan). 8.4 Registration and Listing. The Debtors and Reorganized Debtors shall exercise their best efforts to obtain a listing for New Common Stock and Reorganized Imperial Warrants, if any, to be listed on the American Stock Exchange or a similarly-situated national securities exchange on the Effective Date. 8.5 Registration Rights for Certain Holders of New Common Stock. On the Effective Date, Reorganized Imperial shall enter into a Registration Rights Agreement with each shareholder holding New Common Stock that is deemed to be an "affiliate" of Reorganized Imperial for purposes of the Securities Act of 1933, as amended. Such Registration Rights Agreement shall be in form and substance reasonably satisfactory to the Creditors Committee (taking into account the terms and conditions customary for registration rights agreements in this context) and shall set forth Reorganized Imperial's commitment to exercise commercially reasonable efforts to (a) file with the SEC a shelf Registration Statement in compliance with SEC Rule 415 covering each such shareholder's New Common Stock within thirty (30) days after the Effective Date and (b) have such Registration Statement initially declared effective by the SEC within ninety (90) days after the Effective Date. A-24 ARTICLE 9 Means for Implementation of the Plan 9.1 Substantive Consolidation. The Debtors' Estates shall be substantively consolidated for purposes of the Plan and actions with respect to voting, Confirmation, and distributions to holders of Allowed Claims in Classes 1, 2A, 2B, 2C, 2D, 5A, 5B, 7A, and 7B of the Plan, and all obligations of the Debtors or Reorganized Debtors under the Plan to holders of Claims in those Classes shall be joint and several obligations of the Debtors and/or Reorganized Debtors. Obligations to satisfy Allowed Claims in Classes 3, 4, 6A, and 6B shall not be obligations of the Debtors' substantively consolidated Estate, but shall continue to be obligations of the specific entities which were obligated on such Claim on the Petition Date. Except as expressly provided in the Plan, the Reorganized Debtors shall continue to maintain their separate corporate existences for all purposes other than for voting, Confirmation, and distributions. 9.2 Revesting of Assets. Except as otherwise expressly provided in the Plan or in the Confirmation Order, all property of the Debtors' Estates shall revest in and become property of the Reorganized Debtors, subject to the Liens of the Bank Group under the Senior Credit Agreement, the DIP Facility, and the Amended Senior Credit Agreement. 9.3 Amended Articles of Incorporation and Amended Bylaws of Reorganized Imperial. The Articles of Incorporation of Reorganized Imperial shall be amended, as of the Effective Date, in its entirety to conform to Annex 3 attached hereto, and the Bylaws of Reorganized Imperial shall be amended in their entirety to conform to Annex 4 attached hereto. Consistent with section 1123(a)(6) of the Bankruptcy Code, the amended Articles of Incorporation of Reorganized Imperial shall prohibit, among other things, the issuance of non- voting equity securities as part of the Reorganization Cases. The officers of Reorganized Imperial shall file the Amended and Restated Articles of Incorporation with the Secretary of State of the State of Texas on the Effective Date. 9.4 Initial Directors of Reorganized Imperial. The initial directors of Reorganized Imperial shall consist of seven members, of whom one shall be James C. Kempner and six of whom shall be those individuals designated by the Creditors Committee and identified in the pleading to be filed by the Debtors with the Bankruptcy Court, not later than fifteen (15) days prior to the initial date of the Confirmation Hearing. Entry of the Confirmation Order shall be deemed to constitute resignation of all directors of Imperial effective as of the Effective Date except for those Persons identified in such pleading. 9.5 Management of Reorganized Imperial and the Reorganized Debtors. Except as otherwise provided in the Plan, or except to the extent employment arrangements with such individuals have terminated pursuant to the terms of such agreement or such agreement has been rejected, all existing corporate officers of the Debtors shall continue to serve the Reorganized Debtors in their existing capacities under the terms of their existing employment contracts, if any, subject to the right of the board of directors of Reorganized Imperial to terminate such contract in accordance with its terms or applicable non-bankruptcy law. 9.6 Withholding of Taxes. The Disbursing Agent, as applicable, shall withhold from any assets or property distributed under the Plan any assets or property which must be withheld for foreign, federal, state, and local taxes payable with respect thereto or payable by the Person entitled to such assets to the extent required by applicable law. 9.7 Cancellation of Existing Common Stock. All Existing Common Stock and all warrants, options and rights to acquire Existing Common Stock, including rights under the Imperial Stock Plan, shall be deemed cancelled and null and void for all purposes on the Effective Date without need for further action by the Debtors, Reorganized Debtors, or the Bankruptcy Court. 9.8 Authority to Prosecute or Settle Avoidance Litigation. Except for Retained Avoidance Actions, neither the Debtors nor Reorganized Debtors nor any representative of their Estates shall commence and/or prosecute any avoidance or recovery actions under sections 544, 545, 547, 548, 549, or 550 of the Bankruptcy Code, and A-25 on the Effective Date, all such avoidance actions shall be deemed waived, released, and forever barred. Retained Avoidance Actions shall be prosecuted, settled, or compromised as deemed appropriate by the board of directors of Reorganized Imperial in an exercise of its business judgment under applicable corporate law. Proceeds, if any, from such causes of action shall be used, subject to the Liens of the Bank Group, for the corporate purposes determined by the board of directors of Reorganized Imperial. 9.9 Unclaimed Property. Any Cash, assets, and other property to be distributed under the Plan that remain unclaimed (including by an Entity's failure to negotiate a check issued to such Entity) or otherwise not deliverable to the Entity entitled thereto the later of (a) one year after distribution or (b) 120 calendar days after an order allowing such Entity's Claim or Interest becomes a Final Order, shall become vested in, and shall be transferred and delivered to, the Reorganized Debtors for use in their discretion on the thirtieth (30th) day after the Reorganized Debtors file a notice with the Bankruptcy Court setting forth information regarding the holders whose distribution are unclaimed or undeliverable and the amount of distribution (if Cash) or a description of the property to be distributed. In such event, such Entity's Claim or Interest shall no longer be deemed to be Allowed and such Entity shall be deemed to have waived its rights to such payments or distributions under the Plan pursuant to section 1143 of the Bankruptcy Code. 9.10 Plan Distributions. The Disbursing Agent shall make all distributions required under the Plan. Distributions shall be made on the Distribution Date (unless otherwise provided herein or ordered by the Bankruptcy Court) with respect to all Claims. Distributions to be made on the Distribution Date shall be deemed actually made on the Distribution Date if made either (a) on the Distribution Date or (b) as soon as practicable thereafter. 9.11 Further Authorizations. The Debtors and Reorganized Debtors, if and to the extent necessary, may seek such orders, judgments, injunctions, and rulings that any of them deems necessary to further carry out the intentions and purposes of, and give full effect to the provisions of, the Plan. 9.12 Transfer Taxes. Pursuant to section 1146 of the Bankruptcy Code, the issuance, transfer, or exchange of any of the securities issued under, or the transfer of any other assets or property pursuant to, or in connection with, the Plan or the making or delivery of an instrument of transfer under or in connection with the Plan shall not be taxed under any law imposing a stamp tax, transfer tax or other similar tax. 9.13 Payment of United States Trustee's Fees. On the Effective Date, the Reorganized Debtors shall pay all fees to the United States Trustee as required by applicable laws of the United States. 9.14 Recordable Order. Upon Confirmation of the Plan, the Confirmation Order shall be deemed to be in recordable form, and shall be accepted by any recording officer for filing and recording purposes without further or additional orders when certified by the Clerk of the Bankruptcy Court. 9.15 Effectuating Documents and Further Transactions. The Chief Executive Officer, President, or any Managing Director of the Debtors and/or Reorganized Debtors or other officer authorized under Corporate Documents to perform such function, shall be authorized to execute, deliver, file, or record such contracts, instruments, releases, indentures, and other agreements or documents and take or direct such actions as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan. The Secretary or any Assistant Secretary of the Debtors and/or Reorganized Debtors shall be authorized to certify or attest to any of the foregoing actions. 9.16 Corporate Action. All matters provided for under the Plan involving the corporate structure of the Debtors or Reorganized Debtors, or any corporate action to be taken by, or required of, the Debtors or Reorganized Debtors, shall be deemed to have occurred and be effective as provided herein, and shall be authorized and approved in all respects without any requirement for further action by the stockholders or directors of any of such entities. A-26 9.17 Dissolution of Committees. To the extent not dissolved earlier, the Creditors Committee, the Equity Committee, and any other committee appointed by the United States Trustee pursuant to section 1102 of the Bankruptcy Code shall be dissolved on the Effective Date, unless otherwise directed by order of the Bankruptcy Court. 9.18 Discharge of Indenture Trustee. On the Effective Date, the Indenture Trustee and its agents shall be relieved of all obligations associated with the Imperial Senior Subordinated Notes under applicable agreements or law; provided, however, that the Indenture Trustee shall act as the Reorganized Debtors' Disbursing Agent with respect to distributions of Class 5A/5B New Common Stock to holders of Imperial Senior Subordinated Notes. 9.19 Payment of Indenture Trustee's Fees. Subject to approval of the Bankruptcy Court in accordance with 11 U.S.C. (S) 503, Imperial or Reorganized Imperial will pay the Indenture Trustee the full amount due it under its trust indenture, including, but not limited to, reasonable compensation and expenses. 9.20 Payment of IDB Indenture Trustees' Fees. Subject to approval of the Bankruptcy Court in accordance with 11 U.S.C. (S) 503, Imperial or Reorganized Imperial will pay each IDB Indenture Trustee the full amount due it under its trust indenture, including, but not limited to, reasonable compensation and expenses. 9.21 Survival of Indemnification Obligations. Notwithstanding any other provision of the Plan, all obligations of the Debtors to indemnify their and their affiliates' current and former directors, and current officers, employees, or agents and representatives, including, without limitation, (i) indemnification obligations arising under the charter and bylaws of Imperial or any Debtor, (ii) indemnification obligations arising by contract, and (iii) indemnification obligations arising under applicable, non-bankruptcy law, shall survive Confirmation of the Plan and shall be performed as obligations of the Reorganized Debtors, irrespective of whether such indemnification was owed at time of Confirmation or only became owing in the future, and irrespective, further, of whether indemnification is owed in connection with an event occurring before, on, or after the Petition Date. None of the Reorganized Debtors shall amend any Corporate Document in a manner to affect adversely any Person benefited by such indemnities. The Reorganized Debtors shall maintain insurance in an amount consistent with past practices to fund indemnification obligations under this provision of the Plan. 9.22 Performance of Postpetition Beet Grower Obligations. The Reorganized Debtors shall perform all matured and currently outstanding Postpetition Beet Grower Obligations which mature and become due after the Effective Date in accordance with the terms of contracts with beet growers. Further, Reorganized Debtors shall maintain sufficient liquidity to fund those obligations through bank financing or otherwise. 9.23 Limited Waiver and Release of Liens by Bank Group. Confirmation of the Plan shall operate as a waiver and release by the Bank Group of all Liens of any sort on (a) all accounts receivable sold or to be sold by any of the Debtors to the special purpose vehicle through which the Debtors will securitize accounts receivable after the Effective Date or (b) related collateral and the proceeds thereof, including, without limitation, proceeds of inventory to the extent such proceeds constitute accounts receivables. All documents providing to the contrary shall be deemed modified, without need for further action, to the extent necessary to effectuate this provision. ARTICLE 10 Injunctions, Releases and Discharge 10.1 Discharge and Release. Except as specifically provided in the Plan or in the Confirmation Order, effective on the Effective Date, consummation of the Plan shall discharge and release the Debtors and Reorganized Debtors from any and all claims and demands including any Claim of a kind specified in section 502(g), 502(h), or 502(i) of the Bankruptcy Code, whether or not (i) a Proof of Claim based on such Claim was filed or deemed filed under section 501 of the Bankruptcy Code, or such Claim was listed on the Schedules of the Debtor, (ii) such Claim is or was Allowed under section 502 of the Bankruptcy Code, or (iii) the holder of A-27 such Claim has voted on or accepted the Plan; provided, however, that no Claim of a Governmental Unit for or related to environmental remediation shall be included within the scope of this discharge. 10.2 Discharge Injunction. Except as specifically provided in the Plan Documents to the contrary, the satisfaction, release, and discharge set forth in Article 10.1 of the Plan also shall operate as an injunction prohibiting and permanently enjoining the commencement or continuation of any action, the employment of process or any act to collect, recover from, or offset (a) any Claim against or Interest in the Debtors or Reorganized Debtors by any Entity and (b) any cause of action, whether known or unknown, based on the same subject matter as any Claim or Interest. 10.3 Discharge of Disallowed Claims and Disallowed Interests. On and after the Effective Date, the Debtors shall be fully and finally discharged of any liability or obligation on a Disallowed Claim or a Disallowed Interest, and any order creating a Disallowed Claim or a Disallowed Interest that is not a Final Order as of the Effective Date solely because of an Entity's right to move for reconsideration of such order pursuant to section 502 of the Bankruptcy Code or Bankruptcy Rule 3008 shall nevertheless become and be deemed to be a Final Order on the Effective Date. The Confirmation Order, except as otherwise provided herein, or unless the Bankruptcy Court orders otherwise, shall constitute an order: (a) disallowing all Claims and Interests to the extent such Claims and Interests are not allowable under any provision of section 502 of the Bankruptcy Code, including, but not limited to, time- barred Claims and Interests, and Claims for unmatured interest, and (b) disallowing or subordinating, as the case may be, any Claims, or portions of Claims, for penalties or non-compensatory damages. 10.4 Releases of Corporate Officers. (1) On the Effective Date, the Debtors and Reorganized Debtors, on their own behalf and on behalf of their Estates, shall be deemed, without need for further action, to have been granted an unconditional release to all current officers and current and former directors of any of the Debtors for any and all claims, obligations, suits, judgments, damages, rights, causes of action, and liabilities whatsoever (including those obligations arising under the Bankruptcy Code or during the Reorganization Cases) whether known or unknown, accruing or related to acts or omissions in the course of performing their respective duties occurring prior to the Effective Date. (2) The Terms of this provision shall be effectuated by a permanent injunction which shall be included in the Confirmation Order. 10.5 Exoneration and Reliance. Notwithstanding any other provision of the Plan, Exonerated Parties shall not be liable other than for willful misconduct to any holder of a Claim or Interest or to any Person, Entity, or with respect to any action, omission, forbearance from action, decision, or exercise of discretion taken at any time prior to the Effective Date in connection with: (a) the management or operation of the Debtors, Reorganized Debtors, or the discharge of their duties under the Bankruptcy Code or applicable non- bankruptcy law, (b) the implementation of any of the transactions provided for, or contemplated in, the Plan or the Plan Documents, (c) any action taken in connection with either the enforcement of the Debtors' rights against any Entities or the defense of Claims asserted against the Debtors with regard to the Reorganization Cases, (d) any action taken in the negotiation, formulation, development, proposal, disclosure, Confirmation, or implementation of the Plan, or (e) the administration of the Plan or the assets and property to be distributed pursuant to the Plan; provided, however, that nothing in the foregoing shall prevent or limit the right or ability of the SEC to enforce federal securities laws or act to release, discharge, or exculpate any non-debtor from any obligation to a governmental taxing authority. Exonerated Parties may rely reasonably upon the opinions of their respective counsel, accountants, and other experts or professionals and such reliance, if reasonable, shall conclusively establish good faith and the absence of willful misconduct; provided, however, that a determination that such reliance is unreasonable shall not, by itself, constitute a finding of willful misconduct. In any action, suit or proceeding by any holder of a Claim or Interest or any other Entity contesting any action by, or non-action of, the Debtors, Reorganized Debtors, and of their respective stockholders, directors, officers, agents, employees, members, A-28 attorneys, accountants, financial advisors, and representatives, the reasonable attorneys' fees and costs of the prevailing party shall be paid by the losing party and as a condition to going forward with such action, suit, or proceeding at the outset thereof, all parties thereto shall be required to provide appropriate proof and assurances of their capacity to make such payments of reasonable attorneys' fees and costs in the event they fail to prevail. ARTICLE 11 Matters Incident to Plan Confirmation 11.1 Term of Certain Injunctions and Automatic Stay. (1) All of the injunctions and/or automatic stays provided for in or in connection with the Reorganization Cases, whether pursuant to section 105, section 362 or any other provision of the Bankruptcy Code or other applicable law, in existence immediately prior to Confirmation shall remain in full force and effect until the Injunctions become effective, and thereafter if so provided by the Plan, the Confirmation Order, or by their own terms. In addition, on and after the Confirmation Date, the Debtors may seek such further orders as they may deem necessary to preserve the status quo during the time between Confirmation and the Effective Date. (2) Each of the Injunctions shall become effective on the Effective Date and shall continue in effect at all times thereafter. Notwithstanding anything to the contrary contained elsewhere in the Plan, all actions in the nature of those to be enjoined by the Injunctions shall be enjoined during the period between the Confirmation Date and the Effective Date. 11.2 No Liability for Tax Claims. Unless a taxing authority has asserted a Claim against a Debtor before the bar date established therefor, no Claim of such authority shall be Allowed against the Debtors or Reorganized Debtors for taxes, penalties, interest, additions to tax, or other charges arising out of the failure, if any, of the Debtors or any other Entity to have paid taxes or to have filed any tax return (including, but not limited to, any income tax return or franchise tax return) in or for any prior year or arising out of an audit of any return for a period before the Petition Date. 11.3 Compliance with Tax Requirements. In connection with the Plan, the Reorganized Debtors and Disbursing Agent shall comply with all applicable withholding and reporting requirements imposed by federal, state, and local taxing authorities. Creditors may be required to provide certain tax information as a precondition to distributions under the Plan. ARTICLE 12 Resolution of Disputed Claims 12.1 Disputed Claims and Determination of Disputed Claims. Only Claims that are Allowed shall be entitled to distributions under the Plan. A Claim which is not a Disputed Claim in its entirety shall be considered a Disputed Claim only to the extent of the portion thereof which is disputed, and shall be considered an Allowed Claim as to the undisputed portion thereof. The Debtors reserve the right to contest and object to any Claims asserted against the Debtors, including any Claims not listed in the Debtors' Schedules, listed therein as disputed, contingent and/or unliquidated in amount or listed therein at a lesser amount than asserted in a Proof of Claim. (1) Objection Deadline. As soon as practicable, but in no event later than sixty (60) days after the entry of the Confirmation Order, unless otherwise ordered by the Bankruptcy Court, the Reorganized Debtors shall file objections to Claims with the Bankruptcy Court; provided, however, that the Reorganized Debtors may seek to extend such period (or to extend further any extended period) for cause. A-29 (2) Prosecution of Objections. After the Effective Date, only the Reorganized Debtors, in their sole discretion, shall have authority to file objections to Claims and to litigate to judgment, settle, or withdraw such objections to Disputed Claims. The failure of the Debtors prior to Confirmation to object to a Claim for purposes of voting on the Plan shall in no way be deemed to be a waiver of the right of the Reorganized Debtors to object to such Claim in whole or in part. (3) Distributions After Resolution of Disputed Claims. If a Claim that remains a Disputed Claim as of the Effective Date is thereafter Allowed in whole or in part, the Disbursing Agent shall make the distributions required by the provisions of the Plan to be made in respect of the Allowed portion of such Claim as and when, and in the installments, if any, required by such provisions; provided that, if and to the extent that such provisions would have required an earlier distribution or distributions had such Claim been Allowed as of the Effective Date, each distribution that would have been made earlier shall be made on the Distribution Date. 12.3 Disputed Claims of Persons Receiving New Common Stock. (1) Withholdings for Disputed Claims. In order to satisfy any such Disputed Claim that is treated under Class 5A or Class 5B (to the extent such holder has elected to receive New Common Stock), Reorganized Imperial will issue and set aside for subsequent disposition pursuant to subsection (2) or (3) below such number of shares of Class 5A/5B New Common Stock provided for distribution under this Plan as shall equal the product of (i) 9,800,000 multiplied by (ii) a fraction the numerator of which is the aggregate amount of Disputed Claims on the Distribution Date of holders of Class 5A and Class 5B Claims electing to receive New Common Stock under the Plan and the denominator of which is the sum of such numerator plus the aggregate amount of all other Class 5A and Class 5B Claims whose holders are to receive New Common Stock under the Plan. The stock so issued and set aside, together with dividends or other distributions paid or made thereon and any property issued in exchange therefor, shall be held by Reorganized Imperial, pending final determination of the Disputed Claim, and Reorganized Imperial will vote any voting securities of Reorganized Imperial so held in the same proportion as the other securities of the same class or classes are voted. In the event any tender or exchange offer is made for any securities so held, Reorganized Imperial will tender or exchange such securities as directed by order of the Bankruptcy Court. Any cash received and then withheld pursuant to such a tender or exchange will not bear interest for the account of any holder of Class 5A or Class 5B Claim. (2) Distributions After Resolution of Disputed Claims. If any Claim subject to the withholding provision above thereafter is Allowed in whole or in part, Reorganized Imperial shall deliver to the holder of such Claim as promptly as practicable, out of the securities held by Reorganized Imperial pursuant to subsection (1) above, the number of shares of New Common Stock determined to be applicable to the Allowed portion of such Claim, together with all dividends thereon or distributions with respect thereto which have theretofore been paid or made and set aside. (3) Distributions Related to Disallowed Claims. If any Disputed Claim as of the Effective Date thereafter is disallowed by a Final Order or is Allowed in a lesser amount, the shares of New Common Stock held by Reorganized Imperial pursuant to subsection (1) above shall be distributed on a Pro Rata basis to the holders of Allowed Claims in Class 5A and Class 5B (to the extent a holder of a Claim treated under Class 5A or Class 5B has not elected to receive other treatment in lieu of receipt of shares of New Common Stock). Such distribution shall be made in one or more distributions when determined to be appropriate by the board of directors of Reorganized Imperial. A-30 ARTICLE 13 Retention of Jurisdiction 13.1 Jurisdiction. Until the Reorganization Cases are closed, the Bankruptcy Court shall retain the fullest and most extensive jurisdiction permissible, including all jurisdiction necessary to ensure that the purposes and intent of the Plan are carried out. Except as otherwise provided in the Plan, the Bankruptcy Court shall retain jurisdiction to hear and determine all Claims against and Interests in the Debtors, and to adjudicate and enforce all other causes of action which may exist on behalf of the Debtors. 13.2 General Retention. Following the Confirmation of the Plan, the administration of the Reorganization Cases will continue at least until the completion of the transfers contemplated to be accomplished on the Distribution Date. The Bankruptcy Court shall also retain jurisdiction for the purpose of classification of any Claim and the re-examination of Claims which have been Allowed for purposes of voting, and the determination of such objections as may be filed with the Bankruptcy Court with respect to any Claim. 13.3 Specific Purposes. In addition to, and without limitation of, the foregoing, the Bankruptcy Court shall retain jurisdiction for the following specific purposes after Confirmation: (1) to modify the Plan after Confirmation pursuant to the provisions of the Bankruptcy Code and the Bankruptcy Rules; (2) to correct any defect, cure any omission, reconcile any inconsistency, or make any other necessary changes or modifications in or to the Plan, any Plan Documents, or the Confirmation Order as may be necessary to carry out fully the purposes and intent of the Plan, including the adjustment of the date(s) of performance under the Plan Documents in the event that the Effective Date does not occur as provided herein so that the intended effect of the Plan may be substantially realized thereby; (3) to assure the performance by the Disbursing Agent of the obligations to make distributions under the Plan; (4) to enforce and interpret the terms and conditions of the Plan Documents; (5) to enter such orders or judgments, including, but not limited to, injunctions (i) as are necessary to enforce the title, rights, and powers of the Debtors and Reorganized Debtors and (ii) as are necessary to enable holders of Claims to pursue their rights against any Entity that may be liable therefor pursuant to applicable law or otherwise, including, but not limited to, Bankruptcy Court orders; (6) to hear and determine any motions or contested matters involving taxes, tax refunds, tax attributes, tax benefits, and similar or related matters with respect to the Debtors or Reorganized Debtors arising on or prior to the Effective Date, arising on account of transactions contemplated by the Plan Documents, or relating to the period of administration of the Reorganization Cases; (7) to hear and determine disputes and controversies with respect to the claims of any member of the Bank Group, including, without limitation, any disputes or controversies with respect to the DIP Facility and Amended Senior Credit Agreement and any disputes or controversies regarding the validity, perfection, or enforceability of any prepetition or postpetition Lien of a member of the Bank Group. (8) to hear and determine all applications for compensation of professionals and reimbursement of expenses under sections 330, 331, or 503(b) of the Bankruptcy Code; (9) to hear and determine any causes of action arising during the period from the Petition Date through the Effective Date; (10) to hear and determine any cause of action in any way related to the Plan Documents or the transactions contemplated thereby, against the Debtors, Reorganized Debtors and their respective officers, directors, stockholders, employees, members, attorneys, accountants, financial advisors, representatives, and agents; A-31 (11) to hear and determine any Retained Avoidance Action; (12) to hear and determine any and all motions pending as of Confirmation for the rejection, assumption, or assignment of executory contracts or unexpired leases and the allowance of any Claim resulting therefrom; (13) to hear and determine any dispute related to an Inactive SERP/DC Note; (14) to hear and determine such other matters and for such other purposes as may be provided in the Confirmation Order; (15) to consider and act on the compromise and settlement of any Claim against or Interest in the Debtors or their Estates including, without limitation, any disputes relating to the Administrative Claims Bar Date and the Bar Date; (16) to hear and determine all questions and disputes regarding title to the assets of the Debtors or their Estates. 13.4 Failure of Bankruptcy Court to Exercise Jurisdiction. If the Bankruptcy Court abstains or exercises discretion not to hear any matter within the scope of its jurisdiction, nothing herein shall prohibit or limit the exercise of jurisdiction by any other tribunal having competent jurisdiction over such matter. ARTICLE 14 Miscellaneous 14.1 Revocation of Plan. The Debtors reserve the right to revoke and withdraw the Plan before the entry of the Confirmation Order. If the Debtors revoke or withdraw the Plan, or if Confirmation does not occur, then, with respect to all parties in interest, the Plan shall be deemed null and void and nothing contained herein shall be deemed to constitute a waiver or release of any Claims by or against the Debtors or any other Entity or to prejudice in any manner the rights of the Debtors or such Entity in any further proceedings involving the Debtors. 14.2 Modification of Plan. The Debtors may propose amendments to or modifications of the Plan under section 1127 of the Bankruptcy Code at any time prior to the Confirmation Date. After Confirmation, the Debtors may remedy any defects or omissions or reconcile any inconsistencies in the Plan or the Confirmation Order or any other order entered for the purpose of implementing the Plan in such manner as may be necessary to carry out the purposes and intent of the Plan as long as the interests of holders of Allowed Claims are not adversely affected. 14.3 Modification of Payment Terms. The Debtors reserve the right to modify the treatment of any Allowed Claim, as provided in section 1123(a)(4) of the Bankruptcy Code, at any time after the Effective Date upon the consent of the holder of such Allowed Claim. 14.4 Section 1145 Exemption. Any securities issued pursuant to the Plan shall be exempt from securities registration as set forth in section 1145 of the Bankruptcy Code and all such securities will be freely transferable without further registration unless the transferor is deemed to be an "underwriter" within the meaning of the provisions of section 1145 of the Bankruptcy Code. 14.5 Section 1146 Exemption. Pursuant to section 1146(c) of the Bankruptcy Code, the issuance, transfer, or exchange of any security under the Plan, or the making, delivery, or recording of an instrument of transfer under the Plan may not be taxed under any law imposing a stamp or similar tax. 14.6 Entire Agreement. The Plan Documents set forth the entire agreement and undertakings relating to the subject matter thereof and supersede all prior discussions and documents. No Entity shall be bound by any terms, conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof, other than as expressly provided for herein or as may hereafter be agreed to by the parties in writing. A-32 14.7 Severability. Except as otherwise provided in the Plan Documents, should any provision in the Plan be determined to be unenforceable, such determination shall in no way limit or affect the enforceability and operative effect of any and all other provisions of the Plan. In the event of such an objection, the remaining provisions of the Plan shall not be enforceable or given operative effect and Confirmation shall not be effective without further order of the Bankruptcy Court. 14.8 Rules of Construction. Where used in the Plan, a word or phrase appearing in the singular shall be interpreted as appearing in the plural, and vice versa, if the context or circumstances require. 14.9 Successors and Assigns. The terms of the Plan shall be binding on and inure to the benefit of successors and assigns of the original parties bound to or entitled to benefits under such Plan. 14.10 Headings. Headings are utilized in the Plan for convenience and reference only and shall not constitute a part of the Plan for any other purpose. 14.11 Administrative Claims Bar Date. Unless otherwise ordered by the Bankruptcy Court, the Confirmation Order shall operate to set a bar date for Administrative Claims, which bar date shall be the first Business Day that is at least forty-five (45) days after the Effective Date. Claimants holding Administrative Claims against the Debtors not paid on the Effective Date must submit a Request for Payment of Administrative Expense on or before such bar date; provided that this provision shall not apply to holders of Deemed Allowed Prepetition Beet Grower Claims or require such holders to file a demand for payment of an Administrative Expense. The notice of Confirmation to be delivered pursuant to Bankruptcy Rules 2002 and 3020(c) will set forth such date and constitute notice of the Administrative Claims Bar Date. The Debtors and any other party in interest will have thirty (30) days after the Administrative Claims Bar Date to review and object to such Claims before a hearing for determination of such Administrative Claims is held by the Bankruptcy Court, provided that such thirty day period of review may be extended by the Bankruptcy Court upon the request of the Debtors. 14.12 Governing Law. Except to the extent that federal law (including, but not limited to, the Bankruptcy Code and the Bankruptcy Rules) is applicable or where the Plan provides otherwise, the rights and obligations arising under the Plan shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to its principles of conflicts of law. 14.13 Consent to Jurisdiction. Upon default under the Plan, the Debtors and Reorganized Debtors consent to the jurisdiction of the Bankruptcy Court, or any successor thereto, and agree that it shall be the preferred forum for all proceedings relating to such default. 14.14 Setoffs. Subject to the limitations provided in section 553 of the Bankruptcy Code, the Debtors and/or Reorganized Debtors may, but shall not be required to, setoff against any Claim and the payments or other distributions to be made pursuant to the Plan in respect of such Claim, claims of any nature whatsoever that the Debtors may have against the holder of such Claim, but neither the failure to do so nor the allowance of any Claim hereunder shall constitute a waiver or release by the Debtors of any such claim that the Debtors may have against such holder. 14.15 Non-Debtor Waiver of Rights. Non-debtor parties shall have the right to voluntarily waive any rights, benefits or protections that are afforded to them under the provisions of the Plan or any order issued in furtherance of the Plan, and such waiver shall supersede such rights, benefits or protections. Any such waiver shall only be effective if such party expressly and specifically waives in writing one or more of such rights, benefits or protections. 14.16 Professional Fees. Payment of fees and expenses incurred after the Confirmation Date by professionals retained pursuant to sections 327, 328, and 1103 of the Bankruptcy Code shall not be subject to approval by the Bankruptcy Court and may be paid by the Debtors or Reorganized Debtors in the ordinary course as those obligations become due. 14.17 PIK Obligations. All PIK Obligations of a Debtor shall be performed in full by each respective obligor notwithstanding any provision of the Plan which may be interpreted or construed as providing otherwise. A-33 14.18 Filing of Additional Documents. On or before the Effective Date, the Debtors may file with the Bankruptcy Court such other agreements and/or other documents as may be necessary and further evidence the terms and conditions of the Plan. 14.19 Notices. All notices, requests, or demands in connection with the Plan shall be in writing and shall be mailed or electronically transmitted to: If to the Debtors-in-Possession or Reorganized Debtors: Imperial Sugar Company Attn: William F. Schwer One Imperial Square 8016 Highway 90-A Sugar Land, Texas 77478 Facsimile: (281) 490-9881 Email: bschwer@imperialsugar.com with a copy to: Baker Botts L.L.P. Attn: Jack L. Kinzie 2001 Ross Avenue Dallas, Texas 75201-2980 Facsimile: (214) 953-6503 Email: jack.kinzie@bakerbotts.com and Young Conaway Stargatt & Taylor, LLP Attn: Brendan Linehan Shannon 1100 North Market Street, 11th Floor Wilmington, Delaware 19899-0391 Facsimile: (302) 571-1253 Email: bshannon@ycst.com If to the Bank Group: Chapman and Cutler Attn: James E. Spiotto 111 West Monroe Street Chicago, Illinois 60603-4080 Facsimile: (312) 516-1900 Email: spiotto@chapman.com If to the Creditors Committee: Akin, Gump, Strauss, Hauer & Feld, L.L.P. Attn: S. Margie Venus 1900 Pennzoil Place-South Tower 711 Louisiana Street Houston, Texas 77002 Facsimile: (713) 236-0822 Email: svenus@akingump.com and A-34 Akin, Gump, Strauss, Hauer & Feld, L.L.P. Attn: Fred S. Hodara 590 Madison Avenue New York, New York 10022 Facsimile: (212) 872-1002 Email: fhodara@akingump.com If to the Equity Committee: Bell, Boyd & Lloyd LLC Attn: Michael Yetnikoff Three First National Plaza 70 West Madison Street Chicago, Illinois 60602 Facsimile: (312) 372-2098 Email: myetnikoff@bellboyd.com If to the Ad Hoc Bondholder Committee: Skadden, Arps, Slate, Meagher & Flom (Illinois) Attn: David Kurtz and Timothy Pohl 33 West Wacker Drive Chicago, Illinois 60606-1285 Facsimile: (312) 407-8589 Email: dkurtz@skadden.com tpohl@skadden.com If to the Ad Hoc SERP/DC Committee: Chamberlain, Hrdlicka, White, Williams & Martin Attn: James L. Paul One Ninety One Peachtree Tower, 9th Floor 191 Peachtree Street, N.E. Atlanta, Georgia 30303-1747 Facsimile: (404) 659-1852 Email: james.paul@chamberlainlaw.com If to the United States Trustee: Office of the United States Trustee Attn: Mark S. Kenney U.S. Department of Justice 601 Walnut Street Curtis Center, Suite 905 West Philadelphia, Pennsylvania 19106 Facsimile: (215) 597-5795 Email: mark.kenney@usdoj.gov Dated: June 5, 2001 A-35 SIGNATURES This Plan may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall be deemed one and the same instrument. IMPERIAL SUGAR COMPANY By: /s/ Mark Q. Huggins ---------------------------------- Mark Q. Huggins Managing Director and Chief Financial Officer IMPERIAL DISTRIBUTING, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer President IMPERIAL HOLLY CORPORATION By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President IMPERIAL-SAVANNAH, L.P. By: /s/ William F. Schwer ---------------------------------- William F. Schwer as Senior Vice President of Savannah Molasses and Specialties Company, its general partner IMPERIAL SWEETENER DISTRIBUTORS, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President BIOMASS CORPORATION By: /s/ William F. Schwer ---------------------------------- William F. Schwer President A-36 CROWN EXPRESS, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer President DIAMOND CRYSTAL BRANDS, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer President DIAMOND CRYSTAL BRANDS, L.P. By: /s/ William F. Schwer ---------------------------------- William F. Schwer as Senior Vice President of Diamond Crystal Holdings, Inc., its general partner DIAMOND CRYSTAL HOLDINGS, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President DIAMOND CRYSTAL SPECIALTY FOODS, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President DIXIE CRYSTAL FOODSERVICE, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President DSLT HOLDING COMPANY By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President A-37 FOOD CARRIER, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President FORT BEND UTILITIES COMPANY By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President GREAT LAKES SUGAR COMPANY By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President HOLLY FINANCE COMPANY By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President HOLLY NORTHWEST COMPANY By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President HOLLY SUGAR CORPORATION By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President and General Counsel HSC EXPORT CORP. By: /s/ William F. Schwer ---------------------------------- William F. Schwer Vice President A-38 ICUBE, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer President KING PACKAGING COMPANY, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President LIMESTONE PRODUCTS COMPANY, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer President MENU MAGIC FOODS, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President MICHIGAN SUGAR COMPANY By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President PHOENIX PACKAGING CORPORATION By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President RAGUS HOLDINGS, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer President A-39 SAVANNAH FOODS & INDUSTRIES, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President and General Counsel SAVANNAH FOODS INDUSTRIAL, INC. By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President SAVANNAH INTERNATIONAL COMPANY By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President SAVANNAH INVESTMENT COMPANY By: /s/ William F. Schwer ---------------------------------- William F. Schwer President SAVANNAH MOLASSES & SPECIALTIES COMPANY By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President SAVANNAH PACKAGING COMPANY By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President SAVANNAH SUGAR REFINING CORPORATION By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President A-40 SAVANNAH TOTAL INVERT COMPANY By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President WHOLESOME SWEETENERS GROUP, LTD. By: /s/ William F. Schwer ---------------------------------- William F. Schwer as Senior Vice President of Wholesome Sweeteners LLC, its general partner WHOLESOME SWEETENERS L.L.C. By: /s/ William F. Schwer ---------------------------------- William F. Schwer Senior Vice President A-41 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 75201-2980 214.953.6500 (telephone) 214.953.6503 (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 713.220.4200 (telephone) 713.220.4285 (fax) COUNSEL FOR WELL FARGO BANK (TEXAS), N.A. 10 EX-4.3 7 dex43.txt STIPULATION REGARDING CONFIRMATION EXHIBIT 4.3 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 REGARDING CONFIRMATION OBJECTION OF MISSOURI DEPARTMENT OF REVENUE 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 the Missouri Department of Revenue ("MDOR"), 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 the objection filed by MDOR to confirmation of the Plan. In furtherance of their agreement, the parties stipulate and agree as follows: 1. All Missouri corporate income tax returns required to be filed by a Debtor shall be filed on or before the later of (1) the due date for such returns under applicable non-bankruptcy law or (2) the first Business Day (as defined in the Plan) which is thirty days after the effective date of the Plan. 2. Upon filing of this Amendment, the objection of MDOR to the Plan shall be deemed irrevocably withdrawn. Amendment At the end of Article 2.2 of the Plan, there shall be added a new Article 2.3 which provide as follows: 2.3 Payment Procedures for Priority Tax Claims. Priority Tax Claims treated in accordance with Article 2.2 shall be paid in equal quarterly installments, beginning, after the initial payment, on the fifteenth (15th) of the first month of each calendar-year quarter, with subsequent payments to be made on the fifteen day of each subsequent quarter, unless otherwise mutually agreed between the Debtors and an applicable taxing authority. In the event of a default on obligations under Article 2.2 of the Plan which is not cured on or before the thirtieth (30th) day after written notice to the Debtors, the interest rate on obligations under Article 2.2 of the Plan shall be the rate provided in applicable statute, which in the case of the Missouri Department of Revenue shall be ten percent (10%). Except as otherwise expressly provided in this Amendment, all other terms and conditions of the Plan shall remain as stated therein. Dated: August 7, 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 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 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 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 Counsel 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 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 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 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 75201-2980 214.953.6500 (telephone) 214.953.6503 (fax) COUNSEL FOR THE DEBTORS /s/ Gary L. Barnhart - -------------------- Gary L. Barnhart Missouri Bar No. 42917 Special Assistant Attorney General Missouri Department of Revenue General Counsel's Office 301 W. High Street, Room 670 P.O. Box 475 Jefferson City, Missouri 65105-0475 573.751.5531 (telephone) 573.751.7232 (fax) COUNSEL FOR MISSOURI DEPARTMENT OF REVENUE EX-4.4 8 dex44.txt RECEIVABLES SALES AGREEMENT EXECUTION COPY Exhibit 4.4 RECEIVABLES SALE AGREEMENT Dated as of August 28, 2001 by and among EACH OF THE ORIGINATORS SIGNATORY HERETO FROM TIME TO TIME, IMPERIAL SUGAR COMPANY and IMPERIAL SUGAR SECURITIZATION, LLC TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS AND INTERPRETATION........................................ 1 Section 1.01. Definitions..................................................... 1 Section 1.02. Rules of Construction........................................... 1 ARTICLE II TRANSFERS OF RECEIVABLES............................................. 1 Section 2.01. Agreement to Transfer........................................... 1 Section 2.02. Grant of Security Interest...................................... 3 Section 2.03. Parent Agreement................................................ 3 ARTICLE III CONDITIONS PRECEDENT................................................ 3 Section 3.01. Conditions to Initial Transfer.................................. 3 Section 3.02. Conditions to all Transfers..................................... 4 ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS............................ 5 Section 4.01. Representations and Warranties of the Originators............... 5 Section 4.02. Affirmative Covenants of the Parent and Originators............. 11 Section 4.03. Negative Covenants of the Parent and Originators................ 16 Section 4.04. Breach of Representations, Warranties or Covenants.............. 18 ARTICLE V INDEMNIFICATION....................................................... 18 Section 5.01. Indemnification................................................. 18 ARTICLE VI [Reserved]........................................................... 20 ARTICLE VII COLLATERAL SECURITY................................................. 20 Section 7.01. Security Interest............................................... 20 Section 7.02. Other Collateral; Rights in Receivables......................... 21 Section 7.03. Originators Remain Liable....................................... 21 ARTICLE VIII MISCELLANEOUS...................................................... 21 Section 8.01. Notices......................................................... 21 Section 8.02. No Waiver; Remedies............................................. 23 Section 8.03. Successors and Assigns.......................................... 23 Section 8.04. Termination; Survival of Obligations........................... 23 Section 8.05. Complete Agreement; Modification of Agreement................... 24 Section 8.06. Amendments and Waivers.......................................... 24 Section 8.07. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.... 24
i Section 8.08. Counterparts.................................................... 26 Section 8.09. Severability.................................................... 26 Section 8.10. Section Titles.................................................. 26 Section 8.11. No Setoff....................................................... 26 Section 8.12. Confidentiality................................................. 26 Section 8.13. Further Assurances.............................................. 27 Section 8.14. Fees and Expenses............................................... 27
INDEX OF APPENDICES Exhibit 2.01(a) Form of Receivables Assignment Exhibit 2.01(c) Form of Subordinated Note Exhibit 2.03 Form of Parent Agreement Schedule 4.01(b) Executive Offices; Collateral Locations; Corporate Names Schedule 4.01(d) Litigation Schedule 4.01(h) Ventures, Subsidiaries and Affiliates; Outstanding Stock Schedule 4.01(i) Tax Matters Schedule 4.01(j) Intellectual Property Schedule 4.01(m) ERISA Schedule 4.01(t) Deposit and Disbursement Accounts Schedule 4.02(g) Trade Names Schedule 4.03(b) Existing Liens Annex X Definitions Annex Y Schedule of Documents ii THIS RECEIVABLES SALE AGREEMENT (as amended, supplemented or otherwise modified and in effect from time to time, this "Agreement") is entered into as --------- of August 28, 2001, by and among each of the persons signatory hereto from time to time as Originators, each an "Originator" and, collectively, the ---------- "Originators"), IMPERIAL SUGAR COMPANY, a Texas corporation (the "Parent"), and ----------- ------ IMPERIAL SUGAR SECURITIZATION, LLC, a Delaware limited liability company ("Buyer"). ----- RECITALS A. The Buyer is an indirect Subsidiary of the Parent. B. Buyer has been formed for the sole purpose of purchasing all Receivables originated by each Originator and to finance such Receivables under the Funding Agreement. C. Each Originator intends to sell, and Buyer intends to purchase, such Receivables, from time to time, as described herein. D. In addition, the Member may, from time to time, contribute capital to Buyer in the form of Contributed Receivables or cash. AGREEMENT NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITIONS AND INTERPRETATION Section 1.01. Definitions. Capitalized terms used and not otherwise ----------- defined herein shall have the meanings ascribed to them in Annex X. ------- Section 1.02. Rules of Construction. For purposes of this Agreement, ---------------------- the rules of construction set forth in Annex X shall govern. All Appendices ------- hereto, or expressly identified to this Agreement, are incorporated herein by reference and, taken together with this Agreement, shall constitute but a single agreement. ARTICLE II TRANSFERS OF RECEIVABLES Section 2.01. Agreement to Transfer. --------------------- (a) Receivables Transfers. Subject to the terms and conditions hereof, --------------------- each Originator agrees to sell (without recourse except to the extent specifically provided herein) or, in the case of the Member, sell or contribute, to Buyer on the Effective Date and on each Business Day thereafter (each such date, a "Transfer Date") all Receivables owned by it on each such Transfer Date, ------------- and Buyer agrees to purchase or acquire as a capital contribution all such Receivables on each such Transfer Date. Each such Transfer shall be evidenced by a certificate of assignment substantially in the form of Exhibit 2.01(a) --------------- (each, a "Receivables Assignment," and collectively, the "Receivables ---------------------- ----------- Assignments"), and each Originator and Buyer shall execute and deliver a - ----------- Receivables Assignment on or before the Effective Date. (b) Determination of Sold Receivables. On and as of each Transfer Date, --------------------------------- (i) all Receivables owned by each Originator (other than the Member) and not previously acquired by Buyer shall be identified for sale to Buyer, and (ii) to the extent Receivables owned by the Member have not been contributed to the Buyer in accordance with Section 2.01(d) such Receivables shall, be identified --------------- for sale to the Buyer (each such Receivable identified for sale pursuant to clauses (i) and (ii) above, individually, a "Sold Receivable" and, collectively, - ----------- ---- --------------- the "Sold Receivables"). The Sold Receivables will be identified by reference ---------------- to the General Trial Balance of each Originator. (c) Payment of Purchase Price. In consideration for each Sale of Sold ------------------------- Receivables hereunder, Buyer shall pay to the Originator thereof on the Transfer Date therefor the Sale Price therefor in Dollars in immediately available funds. All such payments by Buyer under this Section 2.01(c) shall be effected by means --------------- of a wire transfer on the day when due to such account or accounts of Imperial Distributing, Inc. as the Originators may designate with a journal entry reflecting the interest of each Originator therein. To the extent that the Sale Price of Sold Receivables exceeds the amount of cash then available to the Buyer, the applicable Originator hereby agrees to make a subordinated loan (each, a "Subordinated Loan") to the Buyer in an amount up to the amount of such ----------------- excess in satisfaction of the equivalent portion of the Sale Price not paid in cash; provided, that in no event shall the aggregate amount of all Subordinated -------- Loans made at any time by all Originators cause the Net Worth Percentage of the Buyer to be less than 15%. The Subordinated Loans shall be evidenced by a subordinated promissory note substantially in the form of Exhibit 2.01(c) hereto --------------- (a "Subordinated Note") executed by the Buyer and dated the Closing Date. The ----------------- Subordinated Loans shall bear interest and be payable as provided in the Subordinated Note. (d) Determination of Contributed Receivables. On each Transfer Date, the ---------------------------------------- Member shall identify Receivables which have not been previously acquired by the Buyer, and shall, prior to the delivery of an Election Notice, contribute such Receivables as a capital contribution to the Buyer (each such contributed Receivable, individually, a "Contributed Receivable," and collectively, the ---------------------- "Contributed Receivables"), to the extent necessary to maintain the Net Worth - ------------------------ Percentage of the Borrower at 15% or greater. Notwithstanding the foregoing, the Member shall not be obligated to make additional contributions to the Buyer at any time. If on any Transfer Date (i) the Member elects not to contribute Receivables to Buyer, or (ii) any Originator (other than the Member) does not sell all of its Receivables to the Buyer, such Originator shall deliver to Buyer not later than 5:00 p.m. (New York time) on the Business Day immediately preceding such Transfer Date a notice of election thereof (each such notice, an "Election Notice"). --------------- (e) Ownership of Transferred Receivables. On and after each Transfer Date ------------------------------------ and after giving effect to the Transfers to be made on each such date, Buyer shall own the Transferred Receivables and no Originator shall take any action inconsistent with such ownership nor shall any Originator claim any ownership interest in such Transferred Receivables. 2 (f) Reconstruction of General Trial Balance. If at any time any Originator --------------------------------------- fails to generate its General Trial Balance, Buyer shall have the right to reconstruct such General Trial Balance so that a determination of the Sold Receivables can be made pursuant to Section 2.01(b). Each Originator agrees to --------------- cooperate with such reconstruction, including by delivery to Buyer, upon Buyer's request, of copies of all Contracts and Records. (g) Servicing of Receivables. So long as no Event of Servicer Termination ------------------------ shall have occurred and be continuing and no Successor Servicer has assumed the responsibilities and obligations of the Servicer pursuant to Section 11.02 of the Funding Agreement, the Servicer shall (i) conduct the servicing, administration and collection of the Transferred Receivables and shall take, or cause to be taken, all such actions as may be necessary or advisable to service, administer and collect the Transferred Receivables, all in accordance with (A) the terms of the Funding Agreement, (B) customary and prudent servicing procedures for trade receivables of a similar type and (C) all applicable laws, rules and regulations, and (ii) hold all Contracts and other documents and incidents relating to the Transferred Receivables in trust for the benefit of Buyer, as the owner thereof, and for the sole purpose of facilitating the servicing of the Transferred Receivables in accordance with the terms of the Funding Agreement. Section 2.02. Grant of Security Interest. The parties hereto intend that -------------------------- each Transfer shall constitute a purchase and sale or capital contribution, as applicable, and not a loan. Notwithstanding the foregoing, in addition to and not in derogation of any rights now or hereafter acquired by Buyer under Section 2.01 hereof, the parties hereto intend that this Agreement shall - ------------ constitute a security agreement under applicable law and that each Originator shall be deemed to have granted, and each Originator does hereby grant, to Buyer a continuing security interest in all of such Originator's right, title and interest in, to and under the Receivables whether now owned or hereafter acquired by such Originator to secure the obligations of such Originator to the Buyer hereunder (including, if and to the extent that any Transfer is recharacterized as a transfer for security, the repayment of a loan deemed to have been made by the Buyer in the amount of the Sale Price with respect thereto). Section 2.03. Parent Agreement. The Parent hereby undertakes and agrees, ---------------- to and for the benefit of Buyer, to cause the due and punctual performance and observance by each Originator of all of the terms, conditions, agreements and undertakings on the part of such Originator to be performed or observed by it hereunder or under any other Related Document and, in connection therewith, shall execute and deliver to Buyer an agreement substantially in the form of Exhibit 2.03 (the "Parent Agreement") to more fully evidence such undertaking. - ------------ ---------------- ARTICLE III CONDITIONS PRECEDENT Section 3.01. Conditions to Initial Transfer. The initial Transfer ------------------------------ hereunder shall be subject to satisfaction of each of the following conditions precedent (any one or more of which may be waived in writing by each of Buyer and the Administrative Agent): (a) Sale Agreement; Other Documents. This Agreement or counterparts hereof ------------------------------- shall have been duly executed by, and delivered to, the Parent, each Originator and Buyer, and Buyer shall have received such documents, instruments, agreements and legal opinions as Buyer shall 3 request in connection with the transactions contemplated by this Agreement, including all those identified in the Schedule of Documents, each in form and substance satisfactory to Buyer. (b) Governmental Approvals. Buyer shall have received (i) satisfactory ---------------------- evidence that the Originators have obtained all required consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Related Documents and the consummation of the transactions contemplated hereby and thereby or (ii) an Officer's Certificate from each Originator in form and substance satisfactory to Buyer affirming that no such consents or approvals are required. (c) Compliance with Laws. Each of the Parent and each Originator shall be -------------------- in compliance with all applicable foreign, federal, state and local laws and regulations, including those specifically referenced in Section 4.02(f). --------------- (d) Funding Agreement Conditions. Each of those conditions precedent set ---------------------------- forth in Sections 3.01 and 3.02 of the Funding Agreement shall have been ------------- ---- satisfied or waived in writing as provided therein. Section 3.02. Conditions to all Transfers. Each Transfer hereunder --------------------------- (including the initial Transfer) shall be subject to satisfaction of the following further conditions precedent as of the Transfer Date therefor: (a) the representations and warranties of each of the Parent and each Originator contained herein or in any other Related Document shall be true and correct as of such Transfer Date, both before and after giving effect to such Transfer and to the application of the Sale Price therefor, except to the extent that any such representation or warranty expressly relates to an earlier date and except for changes therein expressly permitted by this Agreement; (b) no Incipient Termination Event or Termination Event shall have occurred and be continuing or would result after giving effect to such Transfer or the application of the Sale Price therefor; (c) each Originator and member of the Parent Group shall be in compliance with each of its covenants and other agreements set forth herein; and (d) each Originator shall have taken such other action, including delivery of approvals, consents, opinions, documents and instruments to Buyer as Buyer may request. The acceptance by any Originator of the Sale Price for any Sold Receivables on any Transfer Date shall be deemed to constitute, as of any such Transfer Date, a representation and warranty by such Originator that the conditions in this Section 3.02 have been satisfied. Upon any such acceptance, title to the - ------------ Transferred Receivables sold or contributed on such Transfer Date shall be vested absolutely in Buyer, whether or not such conditions were in fact so satisfied. 4 ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS Section 4.01. Representations and Warranties of the Originators. To ------------------------------------------------- induce Buyer to purchase the Sold Receivables and to acquire the Contributed Receivables, each Originator and the Parent make the following representations and warranties to Buyer, each and all of which shall survive the execution and delivery of this Agreement. (a) Corporate Existence; Compliance with Law. The Parent and each ---------------------------------------- Originator (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) is duly qualified to conduct business and is in good standing in each other jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified is not reasonably likely to result in a Material Adverse Effect; (iii) has the requisite power and authority and the legal right to own, pledge, mortgage or otherwise encumber and operate its properties, to lease the property it operates under lease, and to conduct its business, in each case, as now, heretofore and proposed to be conducted; (iv) has all licenses, permits, consents or approvals from or by, and has made all filings with, and has given all notices to, all Governmental Authorities having jurisdiction, to the extent required for such ownership, operation and conduct, except where the failure to obtain such licenses, permits, consents or approvals is not reasonably likely to result in a Material Adverse Effect; (v) is in compliance with its constituent and organizational documents and (vi) subject to specific representations set forth herein regarding ERISA, Environmental Laws, tax laws and other laws, is in compliance with all applicable provisions of law, except (in the case of each of clauses (ii) through (vi)) where the failure to ------------ ---- comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. (b) Executive Offices; Collateral Locations; Corporate or Other Names; ------------------------------------------------------------------ FEIN. As of the Closing Date, each of the Parent and each Originator is a - ---- registered organization of the type and is organized under the laws of the State set forth in Schedule 4.01(b) and the Parent's or such Originator's ---------------- organizational identification number (if any), the current location of the Parent's or such Originator's chief executive office, principal place of business, other offices, the warehouses and premises within which any Originator Collateral is stored or located, and the locations of its records concerning the Originator Collateral are set forth in Schedule 4.01(b) and none of such ---------------- locations have changed within the past 12 months. During the prior five years, except as set forth in Schedule 4.01(b), neither the Parent nor any Originator ---------------- has been known as or used any corporate, fictitious or trade name. In addition, Schedule 4.01(b) lists the federal employer identification number of the Parent - ---------------- and each Originator. (c) Corporate Power, Authorization, Enforceable Obligations. The ------------------------------------------------------- execution, delivery and performance by the Parent and each Originator of this Agreement and the other Related Documents to which it is a party and the creation of all Liens provided for herein and therein and, solely with respect to clause (vii) below, the exercise by Buyer, any Lender or the Administrative ------------ Agent of any of its rights and remedies under any Related Document to which it is a party: (i) are within such Person's power; (ii) have been duly authorized by all necessary or proper action; (iii) do not contravene any provision of such Person's constituent and organizational documents; (iv) do not violate any law or regulation, or any order or decree of any court or Governmental Authority; (v) do not conflict with or result in the breach or termination of, constitute a default under or accelerate or permit the acceleration of any performance required 5 by, any indenture, mortgage, deed of trust, lease, material agreement or other instrument evidencing borrowed money to which such Person is a party or by which such Person or any of its property is bound; (vi) do not result in the creation or imposition of any Adverse Claim upon any of the property of such Person; and (vii) do not require the consent or approval of any Governmental Authority or any other Person, except those referred to in Section 3.01(b), all of which --------------- will have been duly obtained, made or complied with prior to the Effective Date. On or prior to the Effective Date, each of the Related Documents shall have been duly executed and delivered by the Parent and each Originator that is a party thereto and each such Related Document shall then constitute a legal, valid and binding obligation of the Parent and such Originator, as the case may be, enforceable against it in accordance with its terms. (d) No Litigation. Other than the Imperial Bankruptcy Proceeding, no ------------- Litigation is now pending or, to the knowledge of the Parent or any Originator, threatened against the Parent or any Originator that (i) challenges the Parent's or such Originator's right or power to enter into or perform any of its obligations under the Related Documents to which it is a party, or the validity or enforceability of any Related Document or any action taken thereunder, (ii) seeks to prevent the Transfer or pledge of any Receivable or the consummation of any of the transactions contemplated under this Agreement or the other Related Documents or (iii) has a reasonable risk of being determined adversely to the Parent or any Originator and that, if so determined, could reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule -------- 4.01(d), as of the Effective Date there is no Litigation pending or threatened - ------- that seeks damages in excess of $2,500,000 or injunctive relief against, or alleges criminal misconduct by, the Parent or any Originator. (e) Solvency. After giving effect to (i) the transactions contemplated by -------- this Agreement and the other Related Documents and (ii) the payment and accrual of all transaction costs in connection with the foregoing, each Originator is and will be Solvent. (f) Material Adverse Effect. Since the Effective Date, (i) neither the ----------------------- Parent nor any Originator has incurred any obligations, contingent or non- contingent liabilities, liabilities for charges, long-term leases or unusual forward or long-term commitments that, alone or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (ii) no contract, lease or other agreement or instrument has been entered into by the Parent of any Originator or has become binding upon the Parent's or any Originator's assets and no law or regulation applicable to the Parent or any Originator has been adopted that has had or could reasonably be expected to have a Material Adverse Effect on the Parent or such Originator, and (iii) neither the Parent nor any Originator is in default and no third party is in default under any material contract, lease or other agreement or instrument to which the Parent or such Originator is a party that alone or in the aggregate could reasonably be expected to have a Material Adverse Effect. Since the Effective Date, no event has occurred that alone or together with other events could reasonably be expected to have a Material Adverse Effect. (g) Ownership of Receivables; Liens. Each Originator owns each Receivable ------------------------------- originated by it free and clear of any Adverse Claim (other than Permitted Encumbrances) and, from and after each Transfer Date, Buyer will acquire valid and properly perfected title to and the sole record and beneficial ownership interest in each Transferred Receivable purchased or otherwise acquired on such date, free and clear of any Adverse Claim or restrictions on transferability. As of the Effective Date, none of the properties and assets of any Originator are 6 subject to any Adverse Claims other than Permitted Encumbrances, and there are no facts, circumstances or conditions known to any Originator that may result in any Adverse Claims (including Adverse Claims arising under Environmental Laws) other than Permitted Encumbrances. Each Originator has received all assignments, bills of sale and other documents, and has duly effected all recordings, filings and other actions necessary to establish, protect and perfect such Originator's right, title and interest in and to the Receivables originated by it and its other properties and assets. The Liens granted to Buyer pursuant to Section 7.01 ------------ will at all times be fully perfected first priority Liens in and to the Originator Collateral, subject only to Permitted Encumbrances. (h) Ventures, Subsidiaries and Affiliates; Outstanding Stock. Except as -------------------------------------------------------- set forth in Schedule 4.01(h), no Originator has any Subsidiaries, is engaged in ---------------- any joint venture or partnership with any other Person. All of the issued and outstanding Stock of each Originator is directly or indirectly owned by the Parent. There are no outstanding rights to purchase options, warrants or similar rights or agreements pursuant to which the Parent or any Originator may be required to issue, sell, repurchase or redeem any of its Stock or other equity securities or any Stock or other equity securities of its Subsidiaries (other than with respect to the Parent as contemplated in the Plan of Reorganization). (i) Taxes. All tax returns, reports and statements, including information ----- returns, required by any Governmental Authority to be filed by the Parent or any Originator have been filed with the appropriate Governmental Authority and all charges have been paid prior to the date on which any fine, penalty, interest or late charge may be added thereto for nonpayment thereof (or any such fine, penalty, interest, late charge or loss has been paid), excluding charges or other amounts being contested in accordance with Section 4.02(l). Proper and --------------- accurate amounts have been withheld by the Parent and each Originator from its respective employees for all periods in full and complete compliance with all applicable federal, state, local and foreign laws and such withholdings have been timely paid to the respective Governmental Authorities. Schedule 4.01(i) ---------------- sets forth as of the Closing Date (i) those taxable years for which the Parent's or any Originator's tax returns are currently being audited by the IRS or any other applicable Governmental Authority and (ii) any assessments or threatened assessments in connection with such audit or otherwise currently outstanding. Except as described on Schedule 4.01(i), neither the Parent nor any Originator ---------------- has executed or filed with the IRS or any other Governmental Authority any agreement or other document extending, or having the effect of extending, the period for assessment or collection of any charges. None of the Parent or any Originator and their respective predecessors are liable for any charges: (A) under any agreement (including any tax sharing agreements) or (B) to the best of the Parent's and each Originator's knowledge, as a transferee. As of the Effective Date, neither the Parent nor any Originator has agreed or been requested to make any adjustment under IRC Section 481(a), by reason of a change in accounting method or otherwise, that would have a Material Adverse Effect. (j) Intellectual Property. As of the Effective Date, the Parent and each --------------------- Originator owns or has rights to use all intellectual property necessary to continue to conduct its business as now or heretofore conducted by it or proposed to be conducted by it. Each of the Parent and each Originator conducts its business and affairs without infringement of or interference with any intellectual property of any other Person. Except as set forth in Schedule -------- 4.01(j), neither the Parent nor any Originator is aware of any infringement or - ------- claim of infringement by others of any intellectual property of the Parent or any Originator. 7 (k) Full Disclosure. All information contained in this Agreement, any of --------------- the other Related Documents, or any written statement furnished by or on behalf of the Parent or any Originator to Buyer, any Lender or the Administrative Agent pursuant to the terms of this Agreement or any of the other Related Documents is true and accurate in every material respect, and none of this Agreement, any of the other Related Documents, or any written statement furnished by or on behalf of the Parent or any Originator to Buyer, any Lender or the Administrative Agent pursuant to the terms of this Agreement or any of the other Related Documents is misleading as a result of the failure to include therein a material fact (it being understood that the foregoing shall not apply to projections of (i) future financial information or (ii) information related to Receivables which information shall be based upon the Parent's reasonable good faith estimates). (l) Notices to Obligors. Each Originator has directed all Obligors of ------------------- Transferred Receivables originated by it to remit all payments with respect to such Receivables for deposit in a Lockbox or Lockbox Account. (m) ERISA. ----- (i) Schedule 4.01(m) lists all Plans and separately identifies all ---------------- Pension Plans, including all Title IV Plans, Multiemployer Plans, ESOPs and Welfare Plans, including all Retiree Welfare Plans. Each Qualified Plan has been determined by the IRS to qualify under Section 401 of the IRC, the trusts created thereunder have been determined to be exempt from tax under the provisions of Section 501 of the IRC, and, except as set forth on Schedule 4.01(m), nothing has occurred that would cause the loss of such ---------------- qualification or tax-exempt status. Except as otherwise provided in Schedule 4.01(m), and except with respect to instances that would not be ---------------- reasonably expected to have a Material Adverse Effect, (x) each Plan is in compliance with the applicable provisions of ERISA and the IRC, including the timely filing of all reports required under the IRC or ERISA, (y) none of the Parent, any Originator or any of their respective ERISA Affiliates has failed to make any contribution or pay any amount due as required by either Section 412 of the IRC or Section 302 of ERISA or the terms of any such Plan and (z) none of the Parent, any Originator or any of their respective ERISA Affiliates has engaged in a "prohibited transaction," as defined in Section 4975 of the IRC, in connection with any Plan that would subject any Originator to a material tax on prohibited transactions imposed by Section 4975 of the IRC. (ii) Except as set forth in Schedule 4.01(m), and except with respect ---------------- to instances that would not be reasonably expected to have a Material Adverse Effect: (A) no Title IV Plan has any Unfunded Pension Liability; (B) no ERISA Event or event described in Section 4062(e) of ERISA with respect to any Title IV Plan has occurred within the past three years or is reasonably expected to occur; (C) there are no pending or, to the knowledge of the Parent or any Originator, threatened claims (other than claims for benefits in the normal course), sanctions, actions or lawsuits, asserted or instituted against any Plan or any Person as fiduciary or sponsor of any Plan; (D) none of the Parent, any Originator or any of their respective ERISA Affiliates has incurred or reasonably expects to incur any liability as a result of a complete or partial withdrawal from a Multiemployer Plan; (E) within the last five years no Title IV Plan with Unfunded Pension Liabilities has been transferred outside of the "controlled group" (within the 8 meaning of Section 4001(a)(14) of ERISA) of the Parent, any Originator or their respective ERISA Affiliates; (F) Stock of the Parent and all Originators and their respective ERISA Affiliates makes up, in the aggregate, no more than 10% of the assets of any Plan, measured on the basis of fair market value as of the last valuation date of any Plan; and (G) no liability under any Title IV Plan has been satisfied with the purchase of a contract from an insurance company that is not rated AAA by S&P or an equivalent rating by another nationally recognized rating agency. (n) Brokers. No broker or finder acting on behalf of the Parent or any ------- Originator was employed or utilized in connection with this Agreement or the other Related Documents or the transactions contemplated hereby or thereby and neither the Parent nor any Originator has any obligation to any Person in respect of any finder's or brokerage fees in connection therewith. (o) Margin Regulations. Neither the Parent nor any Originator is engaged, ------------------ nor will it engage, principally or as one of its important activities, in the business of extending credit for the purpose of "purchasing" or "carrying" any "margin security" as such terms are defined in Regulations G or U of the Federal Reserve Board as now and from time to time hereafter in effect (such securities being referred to herein as "Margin Stock"). Neither the Parent nor any ------------ Originator owns any Margin Stock, and no portion of the proceeds of the Sale Price for any Sale will be used, directly or indirectly, for the purpose of purchasing or carrying any Margin Stock, for the purpose of reducing or retiring any Debt that was originally incurred to purchase or carry any Margin Stock or for any other purpose that might cause any portion of such proceeds to be considered a "purpose credit" within the meaning of Regulations T, U or X of the Federal Reserve Board. Neither the Parent nor any Originator will take or permit to be taken any action that might cause any Related Document to violate any regulation of the Federal Reserve Board. (p) Nonapplicability of Bulk Sales Laws. No transaction contemplated by ----------------------------------- this Agreement or any of the other Related Documents requires compliance with any bulk sales act or similar law. (q) Securities Act and Investment Company Act Exemptions. Each purchase of ---------------------------------------------------- Transferred Receivables under this Agreement constitutes (i) a "current transaction" within the meaning of Section 3(a)(3) of the Securities Act and (ii) a purchase or other acquisition of notes, drafts, acceptances, open accounts receivable or other obligations representing part or all of the sales price of merchandise, insurance or services within the meaning of Section 3(c)(5) of the Investment Company Act. (r) Government Regulation. Neither the Parent nor any Originator is an --------------------- "investment company" or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company," as such terms are defined in the Investment Company Act. No Originator is subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act, or any other federal or state statute that restricts or limits its ability to incur Debt or to perform its obligations hereunder. The purchase or acquisition of the Transferred Receivables by Buyer hereunder, the application of the Sale Price therefor and the consummation of the transactions contemplated by this Agreement and the other Related Documents will not violate any provision of any such statute or any rule, regulation or order issued by the Securities and Exchange Commission. 9 (s) Books and Records; Minutes. The bylaws or the certificate or articles -------------------------- of incorporation of the Parent and each Originator require it to maintain (i) books and records of account and (ii) minutes of the meetings and other proceedings of its Stockholders and board of directors. (t) Deposit and Disbursement Accounts. Schedule 4.01(t) lists all banks --------------------------------- ---------------- and other financial institutions at which each Originator maintains deposit accounts established for the receipt of collections on accounts receivable as of the Effective Date, including any Lockbox Accounts, and such schedule correctly identifies the name, address and telephone number of each depository, the name in which the account is held, a description of the purpose of the account, and the complete account number therefor, in each case as of the Effective Date. (u) Representations and Warranties in Other Related Documents. Each of the --------------------------------------------------------- representations and warranties of the Parent and each Originator, as applicable, contained in the Related Documents (other than this Agreement) is true and correct in all material respects and the Parent or such Originator, as the case may be, hereby makes each such representation and warranty to, and for the benefit of, the Lenders and the Administrative Agent as if the same were set forth in full herein. (v) Receivables. With respect to each Transferred Receivable designated as ----------- an Eligible Receivable in any Borrowing Base Certificate delivered on or after the Transfer Date of such Transferred Receivable: (i) such Receivable satisfies the criteria for an Eligible Receivable; (ii) prior to its Transfer to Buyer such Receivable was owned by the Originator thereof free and clear of any Adverse Claim (other than Permitted Encumbrances), and such Originator had the full right, power and authority to sell, contribute, assign, transfer and pledge its interest therein as contemplated under this Agreement and the other Related Documents and, upon such Transfer, Buyer will acquire valid and properly perfected title to and the sole record and beneficial ownership interest in such Receivable, free and clear of any Adverse Claim and, following such Transfer, such Receivable will not be subject to any Adverse Claim as a result of any action or inaction on the part of such Originator; (iii) the Transfer of each such Receivable pursuant to this Agreement and the Receivables Assignment executed by the Originator thereof constitutes, as applicable, a valid sale, contribution, transfer, assignment, setover and conveyance to Buyer of all right, title and interest of such Originator in and to such Receivable; and (iv) the Originator of such Receivable has no knowledge of any fact (including any defaults by the Obligor thereunder on any other Receivable) that would cause it or should have caused it to expect that any payments on such Receivable will not be paid in full when due or to expect any other Material Adverse Effect. The representations and warranties described in this Section 4.01 shall survive ------------ the Transfer of the Transferred Receivables to Buyer, any subsequent assignment of the Transferred Receivables 10 by Buyer, and the termination of this Agreement and the other Related Documents and shall continue until the indefeasible payment in full of all Transferred Receivables. Section 4.02. Affirmative Covenants of the Parent and Originators. The --------------------------------------------------- Parent and each Originator covenants and agrees that, unless otherwise consented to by Buyer and the Administrative Agent, from and after the Effective Date and until the Termination Date: (a) Offices and Records. Each of the Parent and each Originator shall ------------------- maintain its jurisdiction of organization, principal place of business and chief executive office and the office at which it keeps its Records at the respective locations specified in Schedule 4.01(b) or, upon 30 days' prior written notice ---------------- to Buyer, at such other location in a jurisdiction where all action requested by Buyer, any Lender or the Administrative Agent pursuant to Section 8.13 shall ------------ have been taken with respect to the Transferred Receivables. Each of the Parent and each Originator shall at its own cost and expense, for not less than three years from the date on which each Transferred Receivable was originated, or for such longer period as may be required by law, maintain adequate Records with respect to such Transferred Receivable, including records of all payments received, credits granted and merchandise returned with respect thereto. (b) Access. Each of the Parent and each Originator shall, during normal ------ business hours, from time to time upon one Business Day's prior notice and as frequently as Buyer, the Servicer or the Administrative Agent determines to be appropriate: (i) provide Buyer, the Servicer or the Administrative Agent and any of their respective officers, employees and agents access to its properties (including properties of the Parent or such Originator, as the case may be, utilized in connection with the collection, processing or servicing of the Transferred Receivables), facilities, advisors and employees (in the presence of an officer if so requested by the Parent or an Originator, as the case may be, and if such officer is provided within one day of such request) (including officers) of the Parent and each Originator and to the Originator Collateral, (ii) permit Buyer, the Servicer or the Administrative Agent and any of their respective officers, employees and agents, to inspect, audit and make extracts from the Parent's or such Originator's books and records, including all Records maintained by the Parent or such Originator, (iii) permit Buyer, the Servicer or the Administrative Agent and their respective officers, employees and agents, to inspect, review and evaluate the Transferred Receivables and other Originator Collateral of such Originator, and (iv) permit Buyer, the Servicer or the Administrative Agent and their respective officers, employees and agents to discuss matters relating to the Transferred Receivables or the Parent's or such Originator's performance under this Agreement or the affairs, finances and accounts of the Parent or such Originator with any of its officers, directors, employees (in the presence of an officer if so requested by the Parent or an Originator, as the case may be, and if such officer is provided within one day of such request), representatives or agents (in each case, with those Persons having knowledge of such matters) and with its independent certified public accountants (in the presence of an officer if so requested by the Parent or an Originator, as the case may be, and if such officer is provided within one day of such request). If an Incipient Termination Event or a Termination Event shall have occurred and be continuing, or the Administrative Agent, in good faith, believes that an Incipient Termination Event or a Termination Event is imminent or deems any Lender's rights or interests in the Transferred Receivables or the Originator Collateral insecure, each of the Parent and each Originator shall provide such access at all times and without advance notice and shall provide Buyer, the Servicer or the Administrative Agent with access to its suppliers and customers. Each of the Parent and each Originator shall make available to Buyer, the Servicer or the 11 Administrative Agent and their respective counsel, as quickly as is possible under the circumstances, originals or copies of all books and records, including Records maintained by the Parent or such Originator, that Buyer, the Servicer or the Administrative Agent may request. Each of the Parent and each Originator shall deliver any document or instrument necessary for Buyer, the Servicer or the Administrative Agent, as they may from time to time request, to obtain records from any service bureau or other Person that maintains records for the Parent or such Originator, and shall maintain duplicate records or supporting documentation on media, including computer tapes and discs owned by the Parent or such Originator. (c) Communication with Accountants. Each of the Parent and each Originator ------------------------------ authorizes Buyer, the Servicer and the Administrative Agent to communicate directly with its independent certified public accountants (in the presence of an officer if so requested by the Parent or an Originator, as the case may be, and if such officer is provided within one day of such request), and authorizes and shall instruct those accountants and advisors to disclose and make available to Buyer, the Servicer and the Administrative Agent any and all financial statements and other supporting financial documents, schedules and information relating to the Parent or such Originator (including copies of any issued management letters) with respect to the business, financial condition and other affairs of the Parent or such Originator. Each of the Parent and each Originator agrees to render to Buyer, the Servicer and the Administrative Agent at the Parent's or such Originator's own cost and expense, such clerical and other assistance as may be reasonably requested with regard to the foregoing. If any Termination Event shall have occurred and be continuing, each of the Parent and each Originator shall, promptly upon request therefor, assist Buyer in delivering to the Administrative Agent Records reflecting activity through the close of business on the Business Day immediately preceding the date of such request. (d) Compliance With Credit and Collection Policies. Each of the Parent and ---------------------------------------------- each Originator shall comply in all material respects with the Credit and Collection Policies applicable to each Transferred Receivable and the Contracts therefor, and with the terms of such Receivables and Contracts. (e) Assignment. Each Originator agrees that, to the extent permitted under ---------- the Funding Agreement, Buyer may assign all of its right, title and interest in, to and under the Transferred Receivables and this Agreement, including its right to exercise the remedies set forth in Section 4.04. Each Originator agrees that, ------------ upon any such assignment, the assignee thereof may enforce directly, without joinder of Buyer, all of the obligations of such Originator hereunder, including any obligations of such Originator set forth in Sections 4.04, 5.01 and 8.14. ------------- ---- ---- (f) Compliance with Agreements and Applicable Laws. Each of the Parent and ---------------------------------------------- each Originator shall perform each of its obligations under this Agreement and the other Related Documents and comply with all federal, state and local laws and regulations applicable to it and the Receivables, including those relating to truth in lending, retail installment sales, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices, privacy, licensing, taxation, ERISA and labor matters and Environmental Laws and Environmental Permits, except to the extent that the failure to so comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. 12 (g) Maintenance of Existence and Conduct of Business. Each of the Parent ------------------------------------------------ and each Originator shall: (i) do or cause to be done all things necessary to preserve and keep in full force and effect its existence and its rights and franchises; (ii) except for Approved Facility Disposition Transactions, continue to conduct its business substantially as now conducted or as otherwise permitted hereunder and in accordance with the terms of its organizational documents; (iii) except for Approved Facility Disposition Transactions, at all times maintain, preserve and protect all of its assets and properties used or useful in the conduct of its business, including all licenses, permits, charters and registrations, and keep the same in good repair, working order and condition in all material respects (taking into consideration ordinary wear and tear) and from time to time make, or cause to be made, all necessary or appropriate repairs, replacements and improvements thereto consistent with industry practices; and (iv) transact business only in such corporate and trade names as are set forth in Schedule 4.02(g) or, upon 30 days' prior written notice to ---------------- Buyer, and the Administrative Agent, in such other corporate or trade names with respect to which all action requested by Buyer, any Lender or the Administrative Agent pursuant to Section 8.13 shall have been taken with respect to the ------------ Transferred Receivables. (h) Notice of Material Event. Each of the Parent and each Originator shall ------------------------ promptly inform Buyer in writing of the occurrence of any of the following, in each case setting forth the details thereof and what action, if any, the Parent or such Originator, as the case may be, proposes to take with respect thereto: (i) any Litigation commenced or threatened against the Parent or any Originator or with respect to or in connection with all or any portion of the Transferred Receivables that (A) seeks damages or penalties in an uninsured amount in excess of $1,000,000 in any one instance or $1,000,000 in the aggregate, (B) seeks injunctive relief, (C) is asserted or instituted against any Plan, its fiduciaries or its assets or against the Parent, any Originator or of their respective ERISA Affiliates in connection with any Plan, (D) alleges criminal misconduct by the Parent or any Originator, or (E) would, if determined adversely, have a Material Adverse Effect; (ii) the commencement of a case or proceeding by or against the Parent or any Originator seeking a decree or order in respect of the Parent or any Originator (A) under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (B) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for the Parent or any Originator or for any substantial part of such Person's assets, or (C) ordering the winding-up or liquidation of the affairs of the Parent or any Originator; (iii) the receipt of notice that (A) any license, permit, charter, registration or approval necessary for the conduct of the Parent's or such Originator's business is to be, or may be, suspended or revoked, or (B) the Parent or such Originator is to cease and desist any practice, procedure or policy employed by the Parent or such Originator in the conduct of its business if such cessation may have a Material Adverse Effect; (iv) (A) any Adverse Claim made or asserted against any of the Transferred Receivables of which it becomes aware or (B) any determination that a Transferred Receivable designated as an Eligible Receivable in a Borrowing Base Certificate or otherwise was not an Eligible Receivable at the time of such designation; 13 (v) any material changes to the "Farm Bill" or any tariffs, quotas or other restrictions in imported sugar; or (vi) any other event, circumstance or condition that has had or could reasonably be expected to have a Material Adverse Effect. (i) Use of Proceeds. Each Originator shall utilize the proceeds of the --------------- Sale Price obtained by it for each Sale made by it hereunder solely for general corporate purposes (including the retirement or repayment of third party debt and loans made to Affiliates) and to pay any related expenses payable by such Originator under this Agreement and the other Related Documents in connection with the transactions contemplated hereby and thereby and for no other purpose. (j) Separate Identity. ----------------- (i) Each Originator shall maintain records and books of account separate from those of Buyer. (ii) The financial statements of the Parent and its consolidated Subsidiaries shall disclose the effects of each Originator's transactions in accordance with GAAP and, in addition, disclose that (A) Buyer's sole business consists of the purchase or acceptance through capital contribution (in the case of the Member) of the Receivables from the Originators and the subsequent financing of such Receivables pursuant to the Funding Agreement, (B) Buyer is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of Buyer's assets prior to any value in Buyer becoming available to Buyer's equityholders and (C) the assets of Buyer are not available to pay creditors of any Originator or any other Affiliate of such Originator. (iii) The resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by each Originator as official records. (iv) Each Originator shall maintain an arm's-length relationship with Buyer and shall not hold itself out as being liable for the Debts of Buyer. (v) Each Originator shall keep its assets and its liabilities wholly separate from those of Buyer. (vi) Each Originator shall conduct its business solely in its own name or the name of the Parent through its duly Authorized Officers or agents and in a manner designed not to mislead third parties as to the separate identity of such Originator from the Buyer. (vii) No Originator shall mislead third parties by conducting or appearing to conduct business on behalf of Buyer or expressly or impliedly representing or suggesting that such Originator is liable or responsible for the Debts of Buyer or that the assets of such Originator are available to pay the creditors of Buyer. 14 (viii) Each Originator shall cause operating expenses and liabilities of Buyer to be paid from Buyer's own funds. (ix) Each Originator shall at all times have stationery and other business forms and a mailing address and telephone number separate from those of Buyer. (x) Each Originator shall at all times limit its transactions with Buyer only to those expressly permitted hereunder or under any other Related Document. (xi) Each Originator shall comply with (and cause to be true and correct) each of the facts and assumptions contained in the opinion of Baker Botts, L.L.P. delivered pursuant to the Schedule of Documents. (k) ERISA. Each of the Parent and each Originator shall give Buyer and the ----- Administrative Agent prompt written notice of any event that could result in the imposition of a Lien under Section 412 of the IRC or Section 302 or 4068 of ERISA. (l) Payment, Performance and Discharge of Obligations. ------------------------------------------------- (i) Subject to Section 4.02(l)(ii), each of the Parent and each ------------------- Originator shall pay, perform and discharge or cause to be paid, performed and discharged all of its obligations and liabilities, including all taxes, assessments and governmental charges upon its income and properties and all lawful claims for labor, materials, supplies and services, promptly when due except to the extent the failure to comply with the foregoing would not have a Material Adverse Effect. (ii) Each of the Parent and each Originator may in good faith contest, by appropriate proceedings, the validity or amount of any charges or claims described in Section 4.02(l)(i); provided, that (A) adequate ------------------ -------- reserves with respect to such contest are maintained on the books of the Parent and such Originator, as applicable, in accordance with GAAP, (B) such contest is maintained and prosecuted continuously and with diligence, (C) none of the Originator Collateral may become subject to forfeiture or loss as a result of such contest, (D) no Lien may be imposed to secure payment of such charges or claims other than inchoate tax liens and (E) Buyer has advised the Parent or such Originator in writing that Buyer reasonably believes that nonpayment or nondischarge thereof could not reasonably be expected to have or result in a Material Adverse Effect. (m) Deposit of Collections. Each Originator shall deposit and cause its ---------------------- Subsidiaries to deposit or cause to be deposited promptly into a Lockbox Account, and in any event no later than the first Business Day after receipt thereof, all Collections it may receive in respect of Transferred Receivables. (n) Accounting Changes. If any Accounting Changes occur and such changes ------------------ result in a change in the standards or terms used herein, then the parties hereto agree to enter into negotiations in order to amend such provisions so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the financial condition of such Persons and their Subsidiaries shall be the same after such Accounting Changes as if such 15 Accounting Changes had not been made. If the parties hereto agree upon the required amendments to this Agreement, then after appropriate amendments have been executed and the underlying Accounting Change with respect thereto has been implemented, any reference to GAAP contained herein shall, only to the extent of such Accounting Change, refer to GAAP consistently applied after giving effect to the implementation of such Accounting Change. If such parties cannot agree upon the required amendments within 30 days following the date of implementation of any Accounting Change, then all financial statements delivered and all standards and terms used herein shall be prepared, delivered and used without regard to the underlying Accounting Change. Section 4.03. Negative Covenants of the Parent and Originators. Each of ------------------------------------------------ the Parent and each Originator covenants and agrees that, without the prior written consent of Buyer and the Administrative Agent, from and after the Closing Date and until the Termination Date: (a) Sale of Stock and Assets. No member of the Parent Group shall sell, ------------------------ transfer, convey, assign (by operation of law or otherwise) or otherwise dispose of, or assign any right to receive income in respect of, any of its properties or other assets, including capital Stock, any Transferred Receivable or Contract therefor, any of its rights with respect to any Lockbox or Lockbox Account or any other Originator Collateral, except (1) sales, transfers, conveyances, assignments or dispositions permitted pursuant to Section 7.5 of the Credit Agreement as in effect on the Closing Date, (2) the pledge by the Member of its membership interest in the Buyer to the lenders in connection with the Credit Agreement and (3) the proposed sale of Michigan Sugar Company and the proposed lease of the Worland, Wyoming plant. (b) Liens. No Originator shall create, incur, assume or permit to exist ----- any Adverse Claim on or with respect to its Receivables or any other Originator Collateral (whether now owned or hereafter acquired) except for the Liens set forth in Schedule 4.03(b) and other Permitted Encumbrances. No member of the ---------------- Parent Group shall create, incur, assume or permit to exist any Lien upon any of its property or receivables whether now owned or hereafter acquired, except for (i) Liens permitted pursuant to Section 7.3 of the Credit Agreement as in effect as of the Closing Date and (ii) Liens created pursuant to the Credit Agreement or any credit facility effecting a refinancing of the Debt incurred pursuant to the Credit Agreement; provided, that any such credit facility expressly excludes -------- all Receivables from any such Lien and the terms and conditions of any such credit facility are not otherwise inconsistent with the terms and conditions of this Agreement or any other Related Document (but in any event which terms and conditions are consistent with the provisions of the Credit Agreement relating to the transactions contemplated by this Agreement and the other Related Documents). (c) Modifications of Receivables or Contracts. No Originator shall extend, ----------------------------------------- amend, forgive, discharge, compromise, cancel or otherwise modify the terms of any Transferred Receivable, or amend, modify or waive any term or condition of any Contract therefor; provided, however that the Originators will be permitted -------- ------- in accordance with their "credit-rebill" process to credit the Outstanding Balance of a Receivable and rebill such Receivable for a lesser amount so long as all other terms of such Receivable remain the same (including, without limitation, the original invoice date of such Receivable). (d) Sale Characterization. No member of the Parent Group shall make --------------------- statements or disclosures or prepare any financial statements for any purpose, including for federal income tax, 16 reporting or accounting purposes, that shall account for the transactions contemplated by this Agreement in any manner other than with respect to the Sale of each Sold Receivable originated by it, as a true sale or absolute assignment of its full right, title and ownership interest in such Transferred Receivable to Buyer and with respect to the Transfer of each Contributed Receivable originated by it, as a contribution to the capital of Buyer. (e) Capital Structure and Business. No member of the Parent Group shall ------------------------------ (i) make any changes in any of its business objectives, purposes or operations that could have or result in a Material Adverse Effect excluding the proposed sale of Michigan Sugar Company and the proposed lease of the Worland, Wyoming plant, (ii) make any change in its capital structure as described on Schedule -------- 4.01(h), including the issuance or repurchase of any shares of Stock, warrants - ------- or other securities convertible into Stock or any revision of the terms of its outstanding Stock or (iii) amend, supplement or otherwise modify its organizational documents in a manner that could have or result in a Material Adverse Effect. No member of the Parent Group shall engage in any business other than the businesses currently engaged in by it. (f) Actions Affecting Rights. Neither the Parent nor any Originator shall ------------------------ (i) take any action, or fail to take any action, if such action or failure to take action may interfere with the enforcement of any rights hereunder or under the other Related Documents, including rights with respect to the Transferred Receivables; or (ii) fail to pay any tax, assessment, charge, fee or other obligation of the Parent or such Originator with respect to the Transferred Receivables, or fail to defend any action, if such failure to pay or defend may adversely affect the priority or enforceability of the perfected title of Buyer to and the sole record and beneficial ownership interest of Buyer in the Transferred Receivables or, prior to their Transfer hereunder, such Originator's right, title or interest therein. (g) ERISA. Neither the Parent nor any Originator shall, or shall cause or ----- permit any ERISA Affiliate to, cause or permit to occur an event that could result in the imposition of a Lien under Section 412 of the IRC or Section 302 or 4068 of ERISA. (h) Change to Credit and Collection Policies. Neither the Parent nor any ---------------------------------------- Originator shall fail to comply with, and no change shall be made to, the Credit and Collection Policies without the prior written consent of Buyer and the Administrative Agent. (i) Adverse Tax Consequences. No member of the Parent Group shall take or ------------------------ permit to be taken any action (other than with respect to actions taken or to be taken solely by a Governmental Authority), or fail or neglect to perform, keep or observe any of its obligations hereunder or under the other Related Documents, that would have the effect directly or indirectly of subjecting any payment to Buyer, or any Lender who are residents of the United States of America to withholding taxation. (j) No Proceedings. From and after the Effective Date and until the date -------------- one year plus one day following the date on which the Funding Agreement has been terminated and all amounts owing by Buyer thereunder have been indefeasibly paid in full in cash, no member of the Parent Group shall, directly or indirectly, institute or cause to be instituted against Buyer any proceeding of the type referred to in Sections 9.01(c) and 9.01(d) of the Funding Agreement. ---------------- ------- 17 (k) Mergers, Acquisitions, Sales, etc. No member of the Parent Group shall ---------------------------------- (i) be a party to any merger or consolidation, or directly or indirectly purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or (ii) directly or indirectly sell, transfer, assign, convey or lease whether in one or a series of transactions, all or substantially all of its assets, other than pursuant hereto or pursuant to an Approved Facility Disposition Transaction, or permit any Subsidiary to do any of the foregoing, except for any such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any majority-owned Subsidiary into such Person or into, with or to any other majority-owned Subsidiary and any such purchase or other acquisition by such Person or any majority-owned Subsidiary of the assets or stock of any majority-owned Subsidiary. (l) Indebtedness. No member of the Parent Group shall create, incur, ------------ assume or permit to exist any Debt, except (i) Debt of such Person to any Affected Party, Buyer Indemnified Person or any other Person expressly permitted by this Agreement or any other Related Document, and (ii) other Debt permitted pursuant to Section 7.2 of the Credit Agreement as in effect as of the Closing Date. (m) Sugar Contract Compliance. Neither the Parent nor any Originator shall ------------------------- fail to comply with the terms of any Sugar Contract at any time if the Receivables arising under such Sugar Contract exceed 1% of the aggregate Outstanding Balance of Eligible Receivables at such time. Section 4.04. Breach of Representations, Warranties or Covenants. Upon -------------------------------------------------- discovery by the Parent, any Originator or Buyer of any breach of any (a) representation, warranty or covenant relating to the absence of Dilution Factors, or (b) representation, warranty or covenant described in Sections 4.01, ------------- 4.02 or 4.03, which breach is reasonably likely to have a material adverse - ---- ---- effect on the value of a Transferred Receivable or the interests of Buyer therein, the party discovering the same shall give prompt written notice thereof to the other parties hereto. The Originator that breached such representation, warranty or covenant may, at any time on any Business Day, or shall, if requested by notice from Buyer, on the first Business Day following receipt of such notice, either (a) repurchase such Transferred Receivable from Buyer for cash, (b) transfer ownership of a new Eligible Receivable or new Eligible Receivables to Buyer on such Business Day, or (c) in the case of the Member, make a capital contribution in cash to Buyer by remitting the amount (the "Rejected Amount") of such capital contribution to the Collection Account in --------------- accordance with the terms of the Funding Agreement, in each case in an amount equal to the Billed Amount of such Transferred Receivable minus the Collections ----- received in respect thereof. Each Originator shall ensure that no Collections or other proceeds with respect to a Transferred Receivable so reconveyed to it are paid or deposited into any Lockbox Account. ARTICLE V INDEMNIFICATION Section 5.01. Indemnification. Without limiting any other rights that --------------- Buyer or any of its Stockholders, officers, directors, employees, attorneys, agents or representatives (each, an "Buyer Indemnified Person") may have ------------------------ hereunder or under applicable law, each Originator hereby agrees to indemnify and hold harmless each Buyer Indemnified Person from and against any and all Indemnified Amounts that may be claimed or asserted against or incurred by any such Buyer Indemnified Person in connection with or arising out of the transactions 18 contemplated under this Agreement or under any other Related Document, any actions or failures to act in connection therewith, including any and all reasonable legal costs and reasonable expenses arising out of or incurred in connection with disputes between or among any parties to any of the Related Documents, or in respect of any Transferred Receivable or any Contract therefor or the use by such Originator of the Sale Price therefor; provided, that no -------- Originator shall be liable for any indemnification to a Buyer Indemnified Person to the extent that any such Indemnified Amounts result from (a) such Buyer Indemnified Person's gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction, (b) recourse for uncollectible or uncollected Transferred Receivables due to the lack of creditworthiness of the Obligor or the occurrence of any event of bankruptcy with respect to such Obligor, (c) any income tax or franchise tax incurred by any Buyer Indemnified Person, except to the extent that the incurrence of any such tax results from a breach of or default under this Agreement or any other Related Document, or (d) such Buyer Indemnified Person's breach of any provision of this Agreement or any other Related Document applicable to it. Without limiting the generality of the foregoing, each Originator shall pay on demand to each Buyer Indemnified Person any and all Indemnified Amounts relating to or resulting from: (i) reliance on any representation or warranty made or deemed made by such Originator (or any of its officers) under or in connection with this Agreement or any other Related Document or on any other information delivered by such Originator pursuant hereto or thereto that shall have been incorrect in any material respect when made or deemed made or delivered; (ii) the failure by such Originator to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith, any applicable law, rule or regulation with respect to any Transferred Receivable or Contract therefor, or the nonconformity of any Transferred Receivable or the Contract therefor with any such applicable law, rule or regulation; (iii) the failure to vest and maintain vested in Buyer, or to Transfer to Buyer, valid and properly perfected title to and sole record and beneficial ownership of the Receivables that constitute Transferred Receivables, together with all Collections in respect thereof, free and clear of any Adverse Claim; (iv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy) to the payment of any Receivable that is the subject of a Transfer hereunder (including a defense based on such Receivable or the Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms, or any other claim resulting from the sale of the merchandise or services giving rise to such Receivable or the furnishing or failure to furnish such merchandise or services or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Parent acting as the Servicer), except to the extent that such dispute, claim, offset or defense results solely from any action or inaction on the part of Buyer; (v) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services that is the subject of any Contract; 19 (vi) the commingling of Collections with respect to Transferred Receivables by any Originator at any time with its other funds or the funds of any other Person; (vii) any failure by such Originator to cause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or any other applicable laws with respect to any Receivable that is the subject of a Transfer hereunder to the extent that such filing is necessary to maintain the perfection and priority of the Buyer in such Receivable, whether at the time of any such Transfer or at any subsequent time; (viii) any failure by any Originator to perform, keep or observe any of their respective duties or obligations hereunder, under any other Related Document or under any Contract related to a Transferred Receivable, including the commingling of Collections with respect to Transferred Receivables by any Originator at any time with the funds of any other Person; (ix) any investigation, Litigation or proceeding related to this Agreement or the use of the Sale Price obtained in connection with any Sale or the ownership of Receivables or Collections with respect thereto or in respect of any Receivable or Contract, except to the extent any such investigation, Litigation or proceeding relates to a matter involving a Buyer Indemnified Person for which neither such Originator nor any of its Affiliates is at fault, as finally determined by a court of competent jurisdiction; or (x) any claim brought by any Person other than a Buyer Indemnified Person arising from any activity by such Originator or any of its Affiliates in servicing, administering or collecting any Transferred Receivables. NO BUYER INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER. ARTICLE VI [Reserved] ARTICLE VII COLLATERAL SECURITY Section 7.01. Security Interest. To secure the prompt and complete ----------------- payment, performance and observance of any and all recourse and indemnity obligations of each Originator to Buyer, including those set forth in Sections -------- 4.04, 5.01 and 8.14, and to induce Buyer to enter into this Agreement in - ----- ---- ---- accordance with the terms and conditions hereof, each Originator hereby grants, assigns, conveys, pledges, hypothecates and transfers to Buyer a Lien upon all of such Originator's right, title and interest in, to and under all Receivables, whether now owned by or owing to, or hereafter acquired by or arising in favor of, such Originator 20 (including under any trade names, styles or derivations of such Originator), and whether owned by or consigned by or to, or leased from or to, such Originator, and regardless of where located (all of which being hereinafter collectively referred to as the "Originator Collateral"). --------------------- Section 7.02. Other Collateral; Rights in Receivables. Nothing --------------------------------------- contained in this Article VII shall limit the rights of Buyer in and to any ----------- other collateral that may have been or may hereafter be granted to Buyer by any Originator or any third party pursuant to any other agreement or the rights of Buyer under any of the Transferred Receivables. Section 7.03. Originators Remain Liable. It is expressly agreed by the ------------------------- Originators that, anything herein to the contrary notwithstanding, each Originator shall remain liable under any and all of the Receivables originated by it, the Contracts therefor and all other Originator Collateral to observe and perform all the conditions and obligations to be observed and performed by it thereunder. The Buyer shall not have any obligation or liability under any such Receivables, Contracts or Originator Collateral by reason of or arising out of this Agreement or the granting herein of a Lien thereon or the receipt by the Buyer of any payment relating thereto pursuant hereto. The exercise by the Buyer of any of its respective rights under this Agreement shall not release any Originator from any of its respective duties or obligations under any such Receivables, Contracts or Originator Collateral. The Buyer shall not be required or obligated in any manner to perform or fulfill any of the obligations of any Originator under or pursuant to any such Receivable, Contract or Originator Collateral, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any such Receivable, Contract or Originator Collateral, or to present or file any claims, or to take any action to collect or enforce any performance or the payment of any amounts that may have been assigned to it or to which it may be entitled at any time or times. ARTICLE VIII MISCELLANEOUS Section 8.01. Notices. Except as otherwise provided herein, whenever ------- it is provided herein that any notice, demand, request, consent, approval, declaration or other communication shall or may be given to or served upon any of the parties by any other parties, or whenever any of the parties desires to give or serve upon any other parties any communication with respect to this Agreement, each such notice, demand, request, consent, approval, declaration or other communication shall be in writing and shall be deemed to have been validly served, given or delivered (a) upon the earlier of actual receipt and three Business Days after deposit in the United States Mail, registered or certified mail, return receipt requested, with proper postage prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile transmission (with such telecopy or facsimile promptly confirmed by delivery of a copy by personal delivery or United States Mail as otherwise provided in this Section ------- 8.01), (c) one Business Day after deposit with a reputable overnight courier - ---- with all charges prepaid or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address or facsimile number set forth below in this Section 8.01 or to such ------------ other address (or facsimile number) as may be substituted by notice given as herein provided: Each Originator: c/o Imperial Sugar 8016 Highway 90A 21 Sugar Land, Texas 77478 Attention: William F. Schwer Facsimile No.: (281) 490-9881 Buyer: Imperial Sugar Securitization, LLC 35 South Main Sugar Land, Texas 77478 Attention: Karen Mercer Facsimile No.: (281) 490-9895 Parent: Imperial Sugar Company 8016 Highway 90A Sugar Land, Texas 77478 Attention: William F. Schwer Facsimile No.: (281) 490-9795 provided, that each such declaration or other communication shall be deemed to - -------- have been validly delivered to the Administrative Agent under this Agreement upon delivery to the Administrative Agent in accordance with the terms of this Section 8.01. The giving of any notice required hereunder may be waived in - ------------ writing by the party entitled to receive such notice. Failure or delay in delivering copies of any notice, demand, request, consent, approval, declaration or other communication to any Person (other than Buyer) designated in any written communication provided hereunder to receive copies shall in no way adversely affect the effectiveness of such notice, demand, request, consent, approval, declaration or other communication. Notwithstanding the foregoing, whenever it is provided herein that a notice is to be given to any other party hereto by a specific time, such notice shall only be effective if actually received by such party prior to such time, and if such notice is received after such time or on a day other than a Business Day, such notice shall only be effective on the immediately succeeding Business Day. 22 Section 8.02. No Waiver; Remedies. Buyer's failure, at any time or ------------------- times, to require strict performance by the Originators of any provision of this Agreement or any Receivables Assignment shall not waive, affect or diminish any right of Buyer thereafter to demand strict compliance and performance herewith or therewith. Any suspension or waiver of any breach or default hereunder shall not suspend, waive or affect any other breach or default whether the same is prior or subsequent thereto and whether the same or of a different type. None of the undertakings, agreements, warranties, covenants and representations of any Originator contained in this Agreement or any Receivables Assignment, and no breach or default by any Originator hereunder or thereunder, shall be deemed to have been suspended or waived by Buyer unless such waiver or suspension is by an instrument in writing signed by an officer of or other duly authorized signatory of Buyer and directed to such Originator specifying such suspension or waiver. Buyer's rights and remedies under this Agreement shall be cumulative and nonexclusive of any other rights and remedies that Buyer may have under any other agreement, including the other Related Documents, by operation of law or otherwise. Recourse to the Originator Collateral shall not be required. Section 8.03. Successors and Assigns. This Agreement shall be binding ---------------------- upon and shall inure to the benefit of each Originator and Buyer and their respective successors and permitted assigns, except as otherwise provided herein. No Originator may assign, transfer, hypothecate or otherwise convey its rights, benefits, obligations or duties hereunder without the prior express written consent of Buyer, the Lenders and the Administrative Agent. Any such purported assignment, transfer, hypothecation or other conveyance by any Originator without the prior express written consent of Buyer, the Lenders and the Administrative Agent shall be void. Each Originator acknowledges that, to the extent permitted under the Funding Agreement, Buyer may assign its rights granted hereunder, including the benefit of any indemnities under Article V and --------- any of its rights in the Originator Collateral granted under Article VII, and ----------- upon such assignment, such assignee shall have, to the extent of such assignment, all rights of Buyer hereunder and, to the extent permitted under the Funding Agreement, may in turn assign such rights. Each Originator agrees that, upon any such assignment, such assignee may enforce directly, without joinder of Buyer, the rights set forth in this Agreement. All such assignees, including parties to the Funding Agreement in the case of any assignment to such parties, shall be third party beneficiaries of, and shall be entitled to enforce Buyer's rights and remedies under, this Agreement to the same extent as if they were parties hereto. Without limiting the generality of the foregoing, all notices to be provided to the Buyer hereunder shall be delivered to both the Buyer and the Administrative Agent under the Funding Agreement, and shall be effective only upon such delivery to the Administrative Agent. The terms and provisions of this Agreement are for the purpose of defining the relative rights and obligations of each Originator and Buyer with respect to the transactions contemplated hereby and, except for the Lenders and the Administrative Agent, no Person shall be a third party beneficiary of any of the terms and provisions of this Agreement. Section 8.04. Termination; Survival of Obligations. ------------------------------------ (a) This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until the Termination Date. 23 (b) Except as otherwise expressly provided herein or in any other Related Document, no termination or cancellation (regardless of cause or procedure) of any commitment made by Buyer under this Agreement shall in any way affect or impair the obligations, duties and liabilities of any Originator or the rights of Buyer relating to any unpaid portion of any and all recourse and indemnity obligations of such Originator to Buyer, including those set forth in Sections 4.04, 5.01 and 8.14, due or not due, liquidated, contingent or - ------------- ---- ---- unliquidated or any transaction or event occurring prior to such termination, or any transaction or event, the performance of which is required after the Commitment Termination Date. Except as otherwise expressly provided herein or in any other Related Document, all undertakings, agreements, covenants, warranties and representations of or binding upon each Originator, and all rights of Buyer hereunder, all as contained in the Related Documents, shall not terminate or expire, but rather shall survive any such termination or cancellation and shall continue in full force and effect until the Termination Date; provided, that the -------- rights and remedies pursuant to Sections 4.04, the indemnification and payment ------------- provisions of Article V, and the provisions of Sections 4.03(j), 8.03, 8.12 and --------- ---------------- ---- ---- 8.14 shall be continuing and shall survive any termination of this Agreement. - ---- Section 8.05. Complete Agreement; Modification of Agreement. This --------------------------------------------- Agreement and the other Related Documents constitute the complete agreement between the parties with respect to the subject matter hereof and thereof, supersede all prior agreements and understandings relating to the subject matter hereof and thereof, and may not be modified, altered or amended except as set forth in Section 8.06. ------------ Section 8.06. Amendments and Waivers. No amendment, modification, ---------------------- termination or waiver of any provision of this Agreement or any of the other Related Documents, or any consent to any departure by any Originator therefrom, shall in any event be effective unless the same shall be in writing and signed by each of the parties hereto and the Lenders and the Administrative Agent. No consent or demand in any case shall, in itself, entitle any party to any other consent or further notice or demand in similar or other circumstances. Section 8.07. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY ------------------------------------------------------ TRIAL. - ----- (a) THIS AGREEMENT AND EACH RELATED DOCUMENT (EXCEPT TO THE EXTENT THAT ANY RELATED DOCUMENT EXPRESSLY PROVIDES TO THE CONTRARY) AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES), EXCEPT TO THE EXTENT THAT THE PERFECTION, EFFECT OF PERFECTION OR PRIORITY OF THE INTERESTS OF THE BUYER IN THE RECEIVABLES OR REMEDIES HEREUNDER OR THEREUNDER, IN RESPECT THEREOF, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. 24 (b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED DOCUMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES -------- THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED FURTHER, THAT -------- ------- NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE BUYER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE ORIGINATOR COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS OF THE ORIGINATORS ARISING HEREUNDER, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF BUYER. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY ----- --- ---------- CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT THE ADDRESS SET FORTH BENEATH ITS NAME ON THE SIGNATURE PAGES HEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. (c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. 25 Section 8.08. Counterparts. This Agreement may be executed in any ------------ number of separate counterparts, each of which shall collectively and separately constitute one agreement. Section 8.09. Severability. Wherever possible, each provision of this ------------ Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. Section 8.10. Section Titles. The section titles and table of contents -------------- contained in this Agreement are provided for ease of reference only and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto. Section 8.11. No Setoff. Each Originator's obligations under this --------- Agreement shall not be affected by any right of setoff, counterclaim, recoupment, defense or other right such Originator might have against Buyer, any Lender or the Administrative Agent, all of which rights are hereby expressly waived by such Originator. Section 8.12. Confidentiality. --------------- (a) Except to the extent otherwise required by applicable law, as required to be filed publicly with the Securities and Exchange Commission, or unless each Affected Party shall otherwise consent in writing, each Originator and Buyer agree to maintain the confidentiality of this Agreement (and all drafts hereof and documents ancillary hereto) in its communications with third parties other than any Affected Party or any Buyer Indemnified Person and otherwise and not to disclose, deliver or otherwise make available to any third party (other than its directors, officers, employees, accountants or counsel) the original or any copy of all or any part of this Agreement (or any draft hereof and documents ancillary hereto) except to an Affected Party or a Buyer Indemnified Person or in connection with the Imperial Bankruptcy Proceeding. (b) Each Originator agrees that it shall not (and shall not permit any of its Subsidiaries to) issue any news release or make any public announcement pertaining to the transactions contemplated by this Agreement and the Related Documents without the prior written consent of Buyer, the Administrative Agent and each Lender (which consent shall not be unreasonably withheld) unless such news release or public announcement is required by law or related to the Imperial Bankruptcy Proceeding, in which case such Originator shall consult with Buyer, the Administrative Agent and each Lender prior to the issuance of such news release or public announcement. Any Originator may, however, disclose the general terms of the transactions contemplated by this Agreement and the Related Documents to trade creditors, suppliers and other similarly-situated Persons so long as such disclosure is not in the form of a news release or public announcement. (c) Except to the extent otherwise required by applicable law, or in connection with any judicial or administrative proceedings, as required to be filed publicly with the Securities Exchange Commission, or unless the Originators otherwise consent in writing, the Buyer agrees (i) to maintain the confidentiality of (A) this Agreement (and all drafts hereof and documents ancillary hereto) and (B) all other confidential proprietary information with respect to the Originators and their respective Affiliates and each of their respective businesses obtained by the 26 Buyer in connection with the structuring, negotiation and execution of the transactions contemplated herein and in the other documents ancillary hereto, in each case, in its communications with third parties other than any Affected Party, any Originator or any party to whom information may be disclosed pursuant to Section 14.05 of the Funding Agreement, and (ii) not to disclose, deliver, or ------------- otherwise make available to any third party (other than its directors, officers, employees, accountants or counsel) the original or any copy of all or any part of this Agreement (or any draft hereof and documents ancillary hereto) except to an Affected Party or any Originator. Section 8.13. Further Assurances. ------------------ (a) Each Originator shall, at its sole cost and expense, upon request of Buyer, any Lender or the Administrative Agent, promptly and duly execute and deliver any and all further instruments and documents and take such further actions that may be necessary or desirable or that Buyer, any Lender or the Administrative Agent may request to carry out more effectively the provisions and purposes of this Agreement or any other Related Document or to obtain the full benefits of this Agreement and of the rights and powers herein granted, including (i) using its best efforts to secure all consents and approvals necessary or appropriate for the assignment to or for the benefit of Buyer of any Transferred Receivable or Originator Collateral held by such Originator or in which such Originator has any rights not heretofore assigned, (ii) filing any financing or continuation statements under the UCC with respect to the ownership interests or Liens granted hereunder or under any other Related Document, and (iii) transferring Originator Collateral to Buyer's possession if such Originator Collateral consists of chattel paper or instruments or if a Lien upon such Originator Collateral can be perfected only by possession, or if otherwise requested by Buyer or (iv) entering into "control agreements" (as defined in the UCC with respect to any Originator Collateral to the extent that a first priority Lien upon such Originator Collateral can be perfected only by control). Each Originator hereby authorizes Buyer, each Lender and the Administrative Agent to file any such financing or continuation statements without the signature of such Originator to the extent permitted by applicable law. A carbon, photographic or other reproduction of this Agreement or of any notice or financing statement covering the Transferred Receivables, the Originator Collateral or any part thereof shall be sufficient as a notice or financing statement where permitted by law. If any amount payable under or in connection with any of the Originator Collateral is or shall become evidenced by any instrument, such instrument, other than checks and notes received in the ordinary course of business, shall be duly endorsed in a manner satisfactory to Buyer immediately upon such Originator's receipt thereof and promptly delivered to Buyer. (b) If any Originator fails to perform any agreement or obligation under this Section 8.13, Buyer, any Lender or the Administrative Agent may (but shall ------------ not be required to) itself perform, or cause performance of, such agreement or obligation, and the reasonable expenses of Buyer, such Lender or the Administrative Agent incurred in connection therewith shall be payable by such Originator upon demand of Buyer, such Lender or the Administrative Agent. Section 8.14. Fees and Expenses. In addition to its indemnification ----------------- obligations pursuant to Article V, each Originator agrees, jointly and --------- severally, to pay on demand all costs and expenses incurred by Buyer in connection with the negotiation, preparation, execution and 27 delivery of this Agreement and the other Related Documents, including the fees and out-of-pocket expenses of Buyer's counsel, advisors, consultants and auditors retained in connection with the transactions contemplated thereby and advice in connection therewith, and each Originator agrees, jointly and severally, to pay all costs and expenses, if any (including attorneys' fees and expenses but excluding any costs of enforcement or collection of the Transferred Receivables), in connection with the enforcement of this Agreement and the other Related Documents. 28 IN WITNESS WHEREOF, the parties have caused this Receivables Sale Agreement to be executed by their respective duly authorized representatives, as of the date first above written. IMPERIAL SUGAR COMPANY By /s/ W.F. Schwer ---------------------------------- Name W.F. Schwer -------------------------------- Title Exec. Vice President ------------------------------- IMPERIAL SUGAR SECURITIZATION, LLC By /s/ W.F. Schwer ---------------------------------- Name W.F. Schwer -------------------------------- Title President ------------------------------- DIAMOND CRYSTAL SPECIALTY FOODS, INC. By /s/ W.F. Schwer ---------------------------------- Name W.F. Schwer -------------------------------- Title Sr. Vice President ------------------------------- DIAMOND CRYSTAL BRANDS, INC. By /s/ W.F. Schwer ---------------------------------- Name W.F. Schwer -------------------------------- Title Sr. Vice President ------------------------------- HOLLY SUGAR CORPORATION By /s/ W.F. Schwer ---------------------------------- Name W.F. Schwer -------------------------------- Title Sr. Vice President ------------------------------- Signature Page to Receivables Sale Agreement MICHIGAN SUGAR COMPANY By /s/ W.F. Schwer ---------------------------------- Name W.F. Schwer -------------------------------- Title Sr. Vice President ------------------------------- GREAT LAKES SUGAR COMPANY By /s/ W.F. Schwer ------------------------------------- Name W.F. Schwer ----------------------------------- Title Sr. Vice President ---------------------------------- IMPERIAL-SAVANNAH LP By /s/ W.F. Schwer ------------------------------------- Name Savannah Molasses & Specialties Co. ----------------------------------- Title W.F. Schwer ---------------------------------- Sr. Vice President KING PACKAGING CO., INC. By /s/ W.F. Schwer ------------------------------------- Name W.F. Schwer ----------------------------------- Title Sr. Vice President ---------------------------------- DIAMOND CRYSTAL BRANDS LP By /s/ W.F. Schwer ------------------------------------- Name Diamond Crystal Holdings Inc ----------------------------------- Title W.F. Schwer ---------------------------------- Sr. Vice President Signature Page to Receivables Sale Agreement EX-4.5 9 dex45.txt RECEIVABLES FUNDING AGREEMENT Exhibit 4.5 EXECUTION COPY RECEIVABLES FUNDING AGREEMENT Dated as of August 28, 2001, by and among IMPERIAL SUGAR SECURITIZATION, LLC as Borrower, IMPERIAL DISTRIBUTING, INC., as Servicer, THE FINANCIAL INSTITUTIONS SIGNATORY HERETO FROM TIME TO TIME, as Lenders and GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender and as Administrative Agent TABLE OF CONTENTS -----------------
Page ---- ARTICLE I. DEFINITIONS AND INTERPRETATION................................................................... 1 Section 1.01. Definitions............................................................................. 1 Section 1.02. Rules of Construction................................................................... 2 ARTICLE II. AMOUNTS AND TERMS OF ADVANCES................................................................... 2 Section 2.01. Advances................................................................................ 2 Section 2.02. Optional Changes in Maximum Facility Amount............................................. 2 Section 2.03. Notices Relating to Increases and Reductions in the Outstanding Principal Amount........ 3 Section 2.04. Making of Advances...................................................................... 6 Section 2.05. Commitment Termination Date............................................................. 7 Section 2.06. Interest................................................................................ 7 Section 2.07. Fees.................................................................................... 8 Section 2.08. Time and Method of Payments............................................................. 9 Section 2.09. Capital Requirements; Additional Costs.................................................. 10 Section 2.10. Breakage Costs.......................................................................... 11 Section 2.11. Funding Excess.......................................................................... 11 ARTICLE III. CONDITIONS PRECEDENT........................................................................... 12 Section 3.01. Conditions to Effectiveness of Agreement................................................ 12 Section 3.02. Conditions Precedent to All Advances.................................................... 13 ARTICLE IV. REPRESENTATIONS AND WARRANTIES.................................................................. 15 Section 4.01. Representations and Warranties of the Borrower.......................................... 15 ARTICLE V. GENERAL COVENANTS OF THE BORROWER................................................................ 22 Section 5.01. Affirmative Covenants of the Borrower................................................... 22 Section 5.02. Reporting Requirements of the Borrower.................................................. 23 Section 5.03. Negative Covenants of the Borrower...................................................... 24 ARTICLE VI. COLLECTIONS AND DISBURSEMENTS................................................................... 26 Section 6.01. Establishment of Accounts............................................................... 26 ARTICLE VII. SERVICER PROVISIONS............................................................................ 29 Section 7.01. Appointment of the Servicer............................................................. 29 Section 7.02. Duties and Responsibilities of the Servicer............................................. 29 Section 7.03. Collections on Receivables.............................................................. 29 Section 7.04. Authorization of the Servicer........................................................... 30 Section 7.05. Servicing Fees.......................................................................... 30 Section 7.06. Representations and Warranties of the Servicer.......................................... 30 Section 7.07. Covenants of the Servicer............................................................... 33 Section 7.08. Reporting Requirements of the Servicer.................................................. 34
i ARTICLE VIII. GRANT OF SECURITY INTERESTS.................................................................. 34 Section 8.01. Borrower's Grant of Security Interest.................................................. 34 Section 8.02. Borrower's Certification............................................................... 35 Section 8.03. Delivery of Collateral................................................................. 36 Section 8.04. Borrower Remains Liable................................................................ 36 Section 8.05. Covenants of the Borrower and the Servicer Regarding the Borrower Collateral........... 36 ARTICLE IX. TERMINATION EVENTS............................................................................. 39 Section 9.01. Termination Events..................................................................... 39 Section 9.02. Events of Servicer Termination......................................................... 43 ARTICLE X. REMEDIES........................................................................................ 45 Section 10.01. Actions Upon Termination Event........................................................ 45 Section 10.02. Exercise of Remedies.................................................................. 47 Section 10.03. Power of Attorney..................................................................... 47 Section 10.04. Continuing Security Interest.......................................................... 47 ARTICLE XI. SUCCESSOR SERVICER PROVISIONS.................................................................. 47 Section 11.01. Servicer Not to Resign................................................................ 48 Section 11.02. Appointment of the Successor Servicer................................................. 48 Section 11.03. Duties of the Servicer................................................................ 48 Section 11.04. Effect of Termination or Resignation.................................................. 49 ARTICLE XII. INDEMNIFICATION............................................................................... 49 Section 12.01. Indemnities by the Borrower........................................................... 49 Section 12.02. Indemnities by the Servicer........................................................... 50 Section 12.03. Limitation of Damages; Indemnified Persons............................................ 51 ARTICLE XIII. ADMINISTRATIVE AGENT......................................................................... 51 Section 13.01. Authorization and Action.............................................................. 51 Section 13.02. Reliance.............................................................................. 52 Section 13.03. GE Capital and Affiliates............................................................. 52 Section 13.04. Lender Credit Decision................................................................ 52 Section 13.05. Indemnification....................................................................... 53 Section 13.06. Successor Administrative Agent........................................................ 53 Section 13.07. Setoff and Sharing of Payments........................................................ 54 ARTICLE XIV. MISCELLANEOUS................................................................................. 54 Section 14.01. Notices............................................................................... 55 Section 14.02. Binding Effect; Assignability......................................................... 55 Section 14.03. Termination; Survival of Borrower Obligations Upon Commitment Termination Date........ 57 Section 14.04. Costs, Expenses and Taxes............................................................. 58 Section 14.05. Confidentiality....................................................................... 59 Section 14.06. Complete Agreement; Modification of Agreement......................................... 60
ii Section 14.07. Amendments and Waivers........................................................... 60 Section 14.08. No Waiver; Remedies.............................................................. 62 Section 14.09. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..................... 62 Section 14.10. Counterparts..................................................................... 64 Section 14.11. Severability..................................................................... 64 Section 14.12. Section Titles................................................................... 64 Section 14.13. Limited Recourse................................................................. 64 Section 14.14. Further Assurances............................................................... 64
EXHIBITS Exhibit 2.01(b) Form of Revolving Note Exhibit 2.02(a) Form of Commitment Reduction Notice Exhibit 2.02(b) Form of Commitment Termination Notice Exhibit 2.03(a) Form of Borrowing Request Exhibit 2.06(c) Notice of Continuation/Conversion Exhibit 2.03(h) Form of Repayment Notice Exhibit 5.02(a) Form of Borrowing Base Certificate Exhibit 10.03 Form of Power of Attorney Exhibit 14.02(b) Form of Assignment Agreement Exhibit A Credit and Collection Policy Schedule 4.01(b) Jurisdiction of organization/organizational number Executive Offices; Collateral Locations; Corporate or Other Names; Schedule 4.01(d) Litigation Schedule 4.01(i) Tax Matters/Borrower Schedule 4.01(q) Deposit and Disbursement Accounts/Borrower Schedule 5.01(b) Trade Names/Borrower Schedule 5.03(b) Existing Liens Schedule 7.06(c) Servicer Litigation Schedule 7.06(e) Servicer Taxes Schedule 7.07(b) Servicer Trade Names Annex 5.02(a) Reporting Requirements of the Borrower (including Form of Monthly Report) Annex W Administrative Agent's Account/Lenders' Accounts Annex X Definitions Annex Y Schedule of Documents Annex Z Special Concentration Percentages iii THIS RECEIVABLES FUNDING AGREEMENT (as amended, supplemented or otherwise modified and in effect from time to time, the "Agreement") is entered --------- into as of August 28, 2001 by and among IMPERIAL SUGAR SECURITIZATION, LLC, a Delaware limited liability company (the "Borrower"), IMPERIAL DISTRIBUTING, -------- INC., a Delaware corporation, in its capacity as servicer hereunder (in such capacity, the "Servicer"), the financial institutions signatory hereto from time -------- to time as lenders (the "Lenders"), and GENERAL ELECTRIC CAPITAL CORPORATION, a ------- Delaware corporation, as a Lender and as administrative agent for the Lenders hereunder (in such capacity, the "Administrative Agent"). -------------------- RECITALS -------- A. The Borrower is a special purpose limited liability company the sole member of which is Imperial - Savannah LP, a Delaware limited partnership (the "Member"), the general partner of which is Savannah Molasses & Specialties ------ Company, a Delaware corporation which is an indirect wholly-owned subsidiary of Imperial Sugar Company, a Texas corporation (the "Parent"). ------ B. The Borrower has been formed for the purpose of purchasing, or otherwise acquiring by capital contribution, Receivables of the Originators party to the Sale Agreement. C. The Borrower intends to fund its purchases of the Receivables, in part, by borrowing Advances hereunder and pledging all of its right, title and interest in and to the Receivables as security therefor, and, subject to the terms and conditions hereof, the Lenders intend to make such Advances, from time to time, as described herein. D. The Administrative Agent has been requested and is willing to act as administrative agent on behalf of each of the Lenders in connection with the making and financing of such Advances. E. In order to effectuate the purposes of this Agreement, each of the Lenders desires to appoint Imperial Distributing, Inc. to service, administer and collect the Receivables securing the Advances pursuant to this Agreement and Imperial Distributing, Inc. is willing to act in such capacity as Servicer hereunder on the terms and conditions set forth herein. AGREEMENT --------- NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I. DEFINITIONS AND INTERPRETATION Section 1.01. Definitions. Capitalized terms used herein and not ----------- otherwise defined shall have the meanings ascribed to them in Annex X. ------- Section 1.02. Rules of Construction. For purposes of this --------------------- Agreement, the rules of construction set forth in Annex X shall govern. All ------- Appendices hereto, or expressly identified to this Agreement, are incorporated herein by reference and, taken together with this Agreement, shall constitute but a single agreement. ARTICLE II. AMOUNTS AND TERMS OF ADVANCES Section 2.01. Advances. -------- (a) From and after the Effective Date and until the Commitment Termination Date and subject to the terms and conditions hereof, each Lender severally agrees to make its Pro Rata Share of advances (each such advance hereunder, an "Advance") to the Borrower from time to time; provided, however, ------- -------- ------- that no Advances shall be made from and after the commencement of a case or proceeding described in Section 9.01(c) until such case or proceeding shall have --------------- been dismissed, bonded or discharged prior to the end of the 60-day period described in such Section 9.01(c). The Pro Rata Share of the Outstanding --------------- Principal Amount of any Lender shall not at any time exceed its separate Commitment. Under no circumstances shall a Lender make any Advances if, after giving effect thereto, a Funding Excess would exist. The aggregate amount of Advances outstanding shall not exceed at any time the Borrowing Base, as determined by the most recent Borrowing Base Certificate delivered by the Borrower hereunder. Borrower may from time to time borrow, repay and reborrow Advances hereunder on the terms and conditions set forth herein. (b) Borrower shall execute and deliver to each Lender a note to evidence the Advances which may be made hereunder from time to time by such Lender. The note shall be in the principal amount of the Commitment of the applicable Lender, dated the Closing Date and substantially in the form of Exhibit 2.01(b) (each, a "Revolving Note"). Each Revolving Note shall represent - --------------- -------------- the obligation of Borrower to pay the amount of each Lender's Commitment or, if less, the Lender's Pro Rata Share of the aggregate unpaid principal amount of all outstanding Advances made to Borrower together with interest thereon as prescribed in Section 2.06. The Outstanding Principal Amount of Advances and ------------ all other accrued and unpaid Borrower Obligations shall be immediately due and payable in full in immediately available funds on the Commitment Termination Date. Section 2.02. Optional Changes in Maximum Facility Amount. ------------------------------------------- (a) So long as no Incipient Termination Event or Termination Event shall have occurred and be continuing, the Borrower may, not more than twice during each calendar year, reduce the Commitment permanently; provided, that (i) -------- the Borrower shall give ten Business Days' prior written notice of any such reduction to the Administrative Agent substantially in the form of Exhibit ------- 2.02(a) (each such notice, a "Commitment Reduction Notice"), (ii) any partial - ------- --------------------------- reduction of the Commitment shall be in a minimum amount of $5,000,000 or an integral multiple thereof, and (iii) no such partial reduction shall reduce the Commitment below the greater of (x) Outstanding Principal Amount at such time and (y) 2 $50,000,000. Any such reduction in the Commitment shall result in a reduction in each Lender's Commitment in an amount equal to such Lenders Pro Rata Share of the amount by which the aggregate Commitment is being reduced. (b) The Borrower may, at any time, on at least 30 days' prior written notice, by the Borrower to the Administrative Agent irrevocably terminate the Commitment; provided, that (i) such notice of termination shall be substantially -------- in the form of Exhibit 2.02(b) (the "Commitment Termination Notice") and (ii) --------------- ----------------------------- the Borrower shall reduce the Outstanding Principal Amount to zero and make all payments required by Section 2.03(h) at the time and in the manner specified --------------- therein. Upon such termination, the Borrower's right to request that any Lender make Advances hereunder shall simultaneously terminate and the Commitment Termination Date shall automatically occur. (c) Each written notice required to be delivered pursuant to Sections -------- 2.02(a) and (b) shall be irrevocable and shall be effective (i) on the day of - ------- --- receipt if received by the Administrative Agent and the Lenders not later than 4:00 p.m. (New York time) on any Business Day and (ii) on the immediately succeeding Business Day if received by the Administrative Agent and the Lenders after such time on such Business Day or if any such notice is received on a day other than a Business Day (regardless of the time of day such notice is received). Each such notice of termination or reduction shall specify, respectively, the amount of, or the amount of the proposed reduction in, the Commitment. Section 2.03. Notices Relating to Increases and Reductions in the --------------------------------------------------- Outstanding Principal Amount. - ---------------------------- (a) Each Advance shall be made upon notice by the Borrower to the Administrative Agent in the manner provided herein. Any such notice must be given in writing so that it is received no later than (1) 11:00 a.m. (New York time) on the Business Day of the proposed Advance Date set forth therein in the case of an Index Rate Advance or (2) 11:00 a.m. (New York time) on the date which is three (3) Business Days prior to the proposed Advance Date set forth therein in the case of a LIBOR Rate Advance. Each such notice (a "Borrowing --------- Request") shall (i) be substantially in the form of Exhibit 2.03(a), (ii) be - ------- --------------- irrevocable and (iii) specify the amount of the requested increase in Outstanding Principal Amount (which shall be in a minimum amount of $250,000) and the proposed Advance Date (which shall be a Business Day), and shall include such other information as may be required by the Lenders and the Administrative Agent. If the Borrower desires LIBOR Rate Advances it must comply with Section ------- 2.06(c). - ------- (b) Advances; Payments. ------------------ (i) Except as otherwise provided in Section 2.03(b)(ii) below, ------------------- (A) the Administrative Agent shall notify Lenders, promptly after receipt of a Borrowing Request and in any event prior to 12:00 noon (New York time) on the date such Borrowing Request is received, by telecopy, telephone or other similar form of transmission and (B) each Lender shall make the amount of such Lender's Pro Rata Share of each Advance available to the Administrative Agent in same day funds by wire transfer to the 3 Administrative Agent's account as set forth in Annex W not later than 2:00 ------- p.m. (New York time) on the requested Advance Date, in the case of an Index Rate Advance and not later than 12:00 noon (New York time) on the requested Advance Date in the case of a LIBOR Rate Advance. After receipt of such wire transfers (or, in the Administrative Agent's sole discretion, before receipt of such wire transfers), subject to the terms hereof, the Administrative Agent shall make available to the Borrower the proceeds of the requested Advance. All payments by each Lender shall be made without setoff, counterclaim or deduction of any kind. (ii) On each Interest Payment Date, the Administrative Agent will advise each Lender by telephone or telecopy of the amount of such Lender's Pro Rata Share of principal, interest and Fees paid for the benefit of Lenders with respect to each applicable Advance. Provided that such Lender has made all payments required to be made by it and purchased all participations required to be purchased by it under this Agreement and the other Related Documents as of such Interest Payment Date, the Administrative Agent will pay to each Lender such Lender's Pro Rata Share of principal, interest and Fees paid by the Borrower since the previous Interest Payment Date for the benefit of that Lender on the portion of the Outstanding Principal Amount held by it. Such payments shall be made by wire transfer to such Lender's account (as specified by such Lender in Annex W or the applicable Assignment Agreement) not later than 2:00 p.m. ------- (New York time on each Interest Payment Date). (c) Availability of Lender's Pro Rata Share. The Administrative --------------------------------------- Agent may assume that each Lender will make its Pro Rata Share of each Advance available to the Administrative Agent on each Advance Date. If the Administrative Agent has made available to the Borrower such Lender's Pro Rata Share of an Advance but such Pro Rata Share is not, in fact, paid to the Administrative Agent by such Lender when due, the Administrative Agent will be entitled to recover such amount on demand from such Lender without set-off, counterclaim or deduction of any kind. If any Lender fails to pay the amount of its Pro Rata Share forthwith upon the Administrative Agent's demand, the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately repay such amount to the Administrative Agent; any such prepayment shall be without any prepayment or penalty, including any payment of Breakage Costs described in Section 2.10. Nothing in this Section 2.03(c) or elsewhere ------------ --------------- in this Agreement or the other Related Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder. To the extent that the Administrative Agent advances funds to the Borrower on behalf of any Lender and is not reimbursed therefor on the same Business Day as such Advance is made, the Administrative Agent shall be entitled to retain for its account all interest accrued on such Advance from the date of such Advance to the date such Advance is reimbursed by the applicable Lender. (d) Return of Payments. (i) If the Administrative Agent pays an ------------------ amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received by the Administrative Agent from the Borrower and such related payment is not received by the Administrative Agent, then the Administrative Agent will be entitled to recover 4 such amount from such Lender on demand without set-off, counterclaim or deduction of any kind. (ii) If the Administrative Agent determines at any time that any amount received by the Administrative Agent under this Agreement must be returned to the Borrower or paid to any other Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of this Agreement or any other Related Document, the Administrative Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to the Administrative Agent on demand any portion of such amount that the Administrative Agent has distributed to such Lender, together with interest at such rate, if any, as the Administrative Agent is required to pay to the Borrower or such other Person, without set-off, counterclaim or deduction of any kind. (e) Non-Funding Lenders. The failure of any Lender (such Lender, a ------------------- "Non-Funding Lender") to make any Advance to be made by it on the date specified - ------------------- therefor shall not relieve any other Lender (each such other Lender, an "Other ----- Lender") of its obligations to make such Advance, but neither any Other Lender - ------ nor the Administrative Agent shall be responsible for the failure of any Non- Funding Lender to make a Advance to be made by such Non-Funding Lender. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Related Document or constitute a "Lender" (or be included in the calculation of "Requisite Lenders" hereunder) for any voting or consent rights under or with respect to any Related Document. (f) Dissemination of Information. The Administrative Agent will use ---------------------------- reasonable efforts to provide Lenders with (i) copies of all notices and other documents provided to the Administrative Agent pursuant to Section 5.02, (ii) ------------ any notice of an Incipient Termination Event or Termination Event received by the Administrative Agent from, or delivered by the Administrative Agent to, the Borrower, (iii) notice of any Termination Event of which the Administrative Agent has actually become aware and (iv) notice of any action taken by the Administrative Agent following any Termination Event; provided, however, that -------- ------- the Administrative Agent shall not be liable to any Lender for any failure to do so, except to the extent that such failure is attributable solely to the Administrative Agent's gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. (g) Actions in Concert. Anything in this Agreement to the contrary ------------------ notwithstanding, each Lender hereby agrees with each other Lender that no Lender shall take any action to protect or enforce its rights arising out of this Agreement or the Revolving Notes (including exercising any rights of set-off) without first obtaining the prior written consent of the Administrative Agent or Requisite Lenders, it being the intent of Lenders that any such action to protect or enforce rights under this Agreement and the Revolving Notes shall be taken in concert and at the direction or with the consent of the Administrative Agent. (h) Principal Repayments. Pursuant to a request by the Member, the -------------------- Borrower may at any time reduce the Outstanding Principal Amount; provided, that -------- (i) the Borrower shall give one Business Day's prior written notice of any such reduction to the 5 Administrative Agent substantially in the form of Exhibit 2.03(h) (each such --------------- notice, a "Repayment Notice"), (ii) each such notice shall be irrevocable, (iii) ---------------- each such notice shall specify the amount of the requested reduction in the Outstanding Principal Amount and the proposed date of such reduction (which shall be a Business Day) and (iv) any such reduction must be accompanied by payment of (A) all interest accrued and unpaid on the Outstanding Principal Amount being reduced through but excluding the date of such reduction and (B) any amounts required to be paid in accordance with Section 2.10, if any. Any ------------ such notice of reduction must be received by the Administrative Agent no later than 4:00 p.m. (New York time) on the Business Day immediately preceding the date of the proposed reduction in the Outstanding Principal Amount; provided, -------- further, that the foregoing requirements shall not apply to reductions of the - ------- Outstanding Principal Amount as a result of the application of amounts on deposit in the Collection Account pursuant to Section 2.06(d). --------------- Section 2.04. Making of Advances. ------------------ (a) Increases in Outstanding Principal Amount. (i) Funding of Borrower Account. Following receipt of any --------------------------- Borrowing Request, and subject to Section 2.03(c) and satisfaction of the --------------- conditions set forth in Section 3.02, the Administrative Agent shall make ------------ available to or on behalf of the Borrower on the Advance Date specified therein the lesser of (x) the requested increase in the Outstanding Principal Amount specified in such Borrowing Request and (y) the Funding Availability, by depositing such amount in same day funds into the Borrower Account. (ii) Recordation of Advances. The Borrower shall indicate in its ----------------------- Records that interests in the Transferred Receivables have been pledged hereunder and that the Administrative Agent has a lien on and security interest in all such Transferred Receivables for the benefit of the Lenders. The Borrower and the Servicer shall hold all Contracts and other documents and incidents relating to such Transferred Receivables in trust for the benefit of the Administrative Agent on behalf of the Lenders in accordance with their interests hereunder. The Borrower and the Servicer hereby acknowledge that their retention and possession of such Contracts and documents shall at all times be at the sole discretion of the Administrative Agent and in a custodial capacity for the Administrative Agent's (on behalf of the Lenders) benefit only. (b) Repurchases of Transferred Receivables. If an Originator is -------------------------------------- required to repurchase Transferred Receivables from the Borrower pursuant to Section 4.04 of the Sale Agreement, upon payment from such Originator of the - ------------ applicable repurchase price thereof (which repurchase price shall not be less than an amount equal to the Billed Amount of such Transferred Receivable minus ----- the sum of (A) Collections received in respect thereof and (B) the amount of any Dilution Factors taken into account in the calculation of the Sale Price therefor), the Administrative Agent and the Lenders shall release their liens on and security interests in the Transferred Receivables being so repurchased. 6 Section 2.05. Commitment Termination Date. Notwithstanding --------------------------- anything to the contrary set forth herein, no Lender shall have any obligation to make any Advances from and after the Commitment Termination Date. Section 2.06. Interest. -------- (a) The Borrower shall pay interest to the Administrative Agent, for the ratable benefit of Lenders in accordance with the various Advances being made by each Lender, in arrears on each applicable Interest Payment Date, (i) for each LIBOR Rate Advance, at the applicable LIBOR Rate for the relevant LIBOR Period then ending, and (ii) for all of the Index Rate Advances outstanding from time to time, at the applicable Index Rate as in effect from time to time during the immediately preceding calendar month, based on the aggregate outstanding amount of Index Rate Advances outstanding from time to time during such month. Interest for each LIBOR Rate Advance shall be calculated based upon actual days elapsed during the related LIBOR Period for a 360 day year based upon actual days elapsed since the last Interest Payment Date and interest for each Index Rate Advance shall be calculated for a 365 day year. (b) So long as any Termination Event shall have occurred and be continuing, the interest rates applicable to each Advance hereunder shall be increased by two percentage points (2.0%) per annum (such increased rate, the "Default Rate"), and all outstanding Advances shall bear interest at the applicable Default Rate from the date of such Termination Event until such Termination Event is waived. (c) So long as no Incipient Termination Event or Termination Event shall have occurred and be continuing, and subject to the additional conditions precedent set forth in Section 3.02, the Borrower shall have the option to (i) ------------ request that any Advances be made as Index Rate Advances or as LIBOR Rate Advances, (ii) convert at any time all or any part of the outstanding Advances from Index Rate Advances to LIBOR Rate Advances, (iii) convert any LIBOR Rate Advance to an Index Rate Advance, subject to payment of Breakage Rate costs in accordance with Section 2.10 if such conversion is made prior to the expiration ------------ of the LIBOR Period applicable thereto, or (iv) continue all or any portion of any part of a LIBOR Rate Advance upon the expiration of the applicable LIBOR Period and the succeeding LIBOR Period of that continued LIBOR Rate Advance shall commence on the last day of the LIBOR Period of the LIBOR Rate Advance to be continued. Any Advances to be made or continued as, or converted into, a LIBOR Rate Advance must be in a minimum amount of $1,000,000 and integral multiples of $500,000 in excess of such amount. Any such election must be made by 11:00 a.m. (New York time) on (A) the third (3rd) Business Day prior to (1) the date of any proposed LIBOR Rate Advance (2) the end of each LIBOR Period with respect to any LIBOR Rate Advances to be continued as such, or (3) the date on which Borrower wishes to convert any Index Rate Advance to a LIBOR Rate Advance for a LIBOR Period designated by Borrower in such election, or (B) the Business Day of any proposed Advance which is to bear interest at the Index Rate. If no election is received with respect to a LIBOR Rate Advance by 11:00 a.m. (New York time) on the third (3rd) Business Day prior to the end of the LIBOR Period with respect thereto (or if an Incipient Termination Event or a Termination Event shall have occurred and be continuing or the additional conditions precedent set forth in Section 3.02 shall not have been satisfied), ------------ that LIBOR Rate Advance shall be converted to an Index Rate Advance at the 7 end of its LIBOR Period. Borrower must make such election by notice to the Administrative Agent in writing, by telecopy or overnight courier. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a "Notice of Conversion/Continuation") in the form of Exhibit --------------------------------- ------- 2.06(c). - ------- (d) On each Business Day, the Administrative Agent shall apply amounts on deposit in the Collection Account on such day to amounts then due and payable in the following order: (1) to Fees and Administrative Agent's expenses reimbursable hereunder; (2) to interest on the Advances; (3) to principal payments on the Advances which are Index Rate Loans; (4) to principal payments on Advances which are LIBOR Rate Advances; (5) to all other obligations of the Borrower hereunder, including, without limitation, the expenses of Lenders to the extent reimbursable under Section 14.04, and (6) deposit in the Borrower ------------- Account remaining funds after payment of the amounts described in clauses (1) through (5) above. The Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of the Borrower, and the Borrower hereby irrevocably agrees that any and all such payments shall be applied by the Administrative Agent in accordance with this Section 2.06(d). The Administrative Agent will, at least as frequently as - --------------- monthly, and otherwise upon the Borrower's written request, give an accounting as to any applications of funds made pursuant to this Section 2.06(d). --------------- (e) The Administrative Agent is authorized to, and at its sole election may, charge to the Outstanding Principal Amount on behalf of the Borrower and cause to be paid all Fees, expenses, charges, costs, interest and principal, other than principal of the Advances, owing by the Borrower under this Agreement or any of the other Related Documents if and to the extent the Borrower fails to pay any such amounts as and when due, even if such charges would cause the aggregate balance of the Outstanding Principal Amount to exceed the Borrowing Base. At Agent's option and to the extent permitted by law, any charges so made shall constitute part of the Outstanding Principal Amount hereunder. Section 2.07. Fees. ---- (a) On the Effective Date, the Borrower shall pay to the Administrative Agent, for the account of itself and the Lenders, the fees set forth in the Fee Letter that are payable on the Effective Date. (b) From and after the Closing Date, as additional compensation for the Lenders, the Borrower agrees to pay to Administrative Agent, for the ratable benefit of such Lenders, monthly in arrears, on the first Business Day of each month prior to the Commitment Termination Date and on the Commitment Termination Date, the Unused Commitment Fee. (c) From and after the Closing Date, the Borrower agrees to pay to the Administrative Agent, for the ratable benefit of the Lenders, monthly in arrears, on the first Business Day of each month, a fee equal to the product of (i) the average daily amount of Collections swept from the Lockbox Account to the Collection Account during such month, (ii) the average daily Index Rate during such month, and (iii) a fraction equal to the actual number of days elapsed during such month divided by 365 days. 8 (d) On each Settlement Date, the Borrower shall pay to the Servicer or to the Successor Servicer, as applicable, the Servicing Fee or the Successor Servicing Fees and Expenses, respectively, in each case to the extent of available funds therefor. Section 2.08. Time and Method of Payments. --------------------------- (a) All payments in reduction of Outstanding Principal Amount and all payments of interest, Fees and other amounts payable by the Borrower hereunder shall be made in Dollars, in immediately available funds, by application of amounts on deposit in the Collection Account in accordance with Section 2.06(d) --------------- hereof; provided, that to the extent that amounts on deposit in the Collection -------- Account on any day are insufficient to pay amounts due on such day in respect of reductions to the Outstanding Principal Amount, interest, Fees or any other amounts payable by the Borrower hereunder, the Borrower shall pay, upon notice from the Administrative Agent, the amount of such insufficiency to the Administrative Agent in Dollars, in immediately available funds (for the account of the Administrative Agent, the applicable Lenders, Affected Parties or Indemnified Persons) not later than 11:00 a.m. (New York time) on such day. Any such payment made on such date but after such time shall be deemed to have been made on, and interest shall continue to accrue and be payable thereon at the LIBOR Rate (in the case of LIBOR Rate Advances) or the Index Rate (in all other cases), until the next succeeding Business Day. If any such payment becomes due on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of LIBOR Period) and interest thereon at the LIBOR Rate (in the case of LIBOR Rate Advances) or Index Rate (in all other cases) shall be payable during such extension. Payments received after 11:00 a.m. (New York time) on any Business Day or on a day that is not a Business Day shall be deemed to have been received on the following Business Day. (b) Any and all payments by the Borrower hereunder shall be made in accordance with this Section 2.08 without setoff or counterclaim and free and ------------ clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, excluding taxes imposed on or measured by the net income of any Affected Party by the jurisdictions under the laws of which such Affected Party is organized or by any political subdivisions thereof (such non-excluded taxes, levies, imposts, deductions, charges and withholdings being "Indemnified Taxes"). If the Borrower shall be required by ----------------- law to deduct any Indemnified Taxes from or in respect of any sum payable hereunder, (i) the sum payable shall be increased as much as shall be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.08) the Affected Party entitled to ------------ receive any such payment receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions, and (iii) the Borrower shall pay the full amount deducted to the relevant taxing or other authority in accordance with applicable law. Within 30 days after the date of any payment of Indemnified Taxes, the Borrower shall furnish to the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Borrower shall indemnify any Affected Party from and against, and, within ten days of demand therefor, pay any Affected Party for, the full amount of Indemnified Taxes (together with any taxes imposed by any jurisdiction on amounts payable under this Section 2.08) ------------ paid by such Affected Party and any 9 liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted. Section 2.09. Capital Requirements; Additional Costs. -------------------------------------- (a) If the Administrative Agent on behalf of any Affected Party shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by such Affected Party with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) from any central bank or other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Affected Party against commitments made by it under this Agreement or any other Related Document and thereby reducing the rate of return on such Affected Party's capital as a consequence of its commitments hereunder or thereunder, then the Borrower shall from time to time upon demand by the Administrative Agent pay to the Administrative Agent on behalf of such Affected Party additional amounts sufficient to compensate such Affected Party for such reduction together with interest thereon from the date of any such demand until payment in full at the applicable Index Rate. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by the Administrative Agent to the Borrower shall be final, binding and conclusive on the parties hereto (absent manifest error) for all purposes. (b) If, due to any Regulatory Change, there shall be any increase in the cost to any Affected Party of agreeing to make or making, funding or maintaining any commitment hereunder or under any other Related Document, including with respect to any Advances or Outstanding Principal Amount, or any reduction in any amount receivable by such Affected Party hereunder or thereunder, including with respect to any Advances or Outstanding Principal Amount (any such increase in cost or reduction in amounts receivable are hereinafter referred to as "Additional Costs"), then the Borrower shall, from ---------------- time to time upon demand by the Administrative Agent, pay to the Administrative Agent on behalf of such Affected Party additional amounts sufficient to compensate such Affected Party such Additional Costs together with interest thereon from the date demanded until payment in full thereof at the applicable Index Rate. Each Affected Party agrees that, as promptly as practicable after it becomes aware of any circumstance referred to above that would result in any such Additional Costs, it shall, to the extent not inconsistent with its internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by the Borrower pursuant to this Section 2.09(b). --------------- (c) Determinations by any Affected Party for purposes of this Section ------- 2.09 of the effect of any Regulatory Change on its costs of making, funding or - ---- maintaining any commitments hereunder or under any other Related Document or on amounts payable to it hereunder or thereunder or of the additional amounts required to compensate such Affected Party in respect of any Additional Costs shall be set forth in a written notice to the Borrower in reasonable detail and which is calculated the same as for comparable claims with respect to similarly situated sellers or borrowers of the Affected Party and shall be final, binding and conclusive on the Borrower (absent manifest error) for all purposes. 10 (d) Notwithstanding anything to the contrary contained herein, if the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender to agree to make or to make or to continue to fund or maintain any LIBOR Rate Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Rate Advance at another branch or office of that Lender without, in that Lender's opinion, adversely affecting it or its Advances or the income obtained therefrom, on notice thereof and demand therefor by such Lender to Borrower through Administrative Agent, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Rate Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Rate Advances owing to such Lender, together with interest accrued thereon, unless Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such LIBOR Rate Advances into Index Rate Loans. Section 2.10. Breakage Costs. To induce Lenders to provide the -------------- LIBOR Rate option on the terms provided herein, if (i) any LIBOR Rate Advances are, except by reason of the requirements in Section 2.03(c), repaid in whole or --------------- in part prior to the last day of any applicable LIBOR Period (whether that repayment is made pursuant to any other provision of this Agreement or any other Related Document or is the result of acceleration, by operation of law or otherwise); (ii) the Borrower shall default in payment when due of the principal amount of or interest on any LIBOR Rate Advance; (iii) the Borrower shall default in making any borrowing of, conversion into or continuation of LIBOR Rate Advances after the Borrower has given notice requesting the same in accordance herewith (including any failure to satisfy conditions precedent to the making of any LIBOR Rate Advances); or (iv) the Borrower shall fail to make any prepayment of a LIBOR Rate Advance after the Borrower has given a notice thereof in accordance herewith, then, in any such case, the Borrower shall indemnify and hold harmless each Lender from and against all losses, costs and expenses resulting from or arising from any of the foregoing (any such loss, cost or expense, "Breakage Costs"). Such indemnification shall include any loss -------------- (including loss of margin) or expense arising from the reemployment of funds obtained by it or from fees payable to terminate deposits from which such funds were obtained. Each Lender shall make a good faith effort to reinvest any repayment proceeds received from the Borrower in order to mitigate the losses which would otherwise be reimbursable under this Section 2.10. For the purpose ------------ of calculating amounts payable to a Lender under this subsection, each Lender shall be deemed to have actually funded its relevant LIBOR Rate Advance through the purchase of a deposit bearing interest at the LIBOR Rate in an amount equal to the amount of that LIBOR Rate Advance and having a maturity comparable to the relevant LIBOR Period; provided, however, that each Lender may fund each of its -------- ------- LIBOR Rate Advances in any manner it sees fit, and the foregoing assumption shall be utilized only for the calculation of amounts payable under this subsection. This covenant shall survive the termination of this Agreement and the payment of the Revolving Notes and all other amounts payable hereunder. The determination by such Lender of the amount of any such loss or expense shall be set forth in a written notice to the Borrower in reasonable detail and shall be final, binding and conclusive on the Borrower (absent manifest error) for all purposes. Section 2.11. Funding Excess. On each Business Day during the -------------- Revolving Period, the Administrative Agent shall notify the Borrower and the Servicer of any Funding 11 Excess on such day, and the Borrower shall deposit the amount of such Funding Excess in the Collection Account by 11:00 a.m. (New York time) on the immediately succeeding Business Day. ARTICLE III. CONDITIONS PRECEDENT Section 3.01. Conditions to Effectiveness of Agreement. This ---------------------------------------- Agreement shall not be effective until the date on which each of the following conditions have been satisfied, in the sole discretion of, or waived in writing by, the Lenders and the Administrative Agent (such date, the "Effective Date"): -------------- (a) Funding Agreement; Other Related Documents. This Agreement and ------------------------------------------ the Revolving Notes shall have been duly executed by, and delivered to, the parties hereto and the Lenders and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as each Lender and the Administrative Agent shall request in connection with the transactions contemplated by this Agreement, including all those listed in the Schedule of Documents, each in form and substance satisfactory to each Lender and the Administrative Agent. (b) Governmental Approvals. The Lenders and the Administrative Agent ---------------------- shall have received (i) satisfactory evidence that the Borrower and the Servicer have obtained all required consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Related Documents and the consummation of the transactions contemplated hereby or thereby or (ii) an Officer's Certificate from each of the Borrower and the Servicer in form and substance satisfactory to the Lenders and the Administrative Agent affirming that no such consents or approvals are required. (c) Compliance with Laws. The Borrower and the Servicer shall be in -------------------- compliance in all material respects with all applicable foreign, federal, state and local laws and regulations, including those specifically referenced in Section 5.01(a). - --------------- (d) Payment of Fees. The Borrower shall have paid all fees required --------------- to be paid by it on the Effective Date, including all fees required hereunder and under the Fee Letter, and shall have reimbursed each Lender for all fees, costs and expenses of closing the transactions contemplated hereunder and under the other Related Documents, including each Lender's legal and audit expenses, and other document preparation costs. (e) Representations and Warranties. Each representation and warranty ------------------------------ by the Borrower contained herein and in each other Related Document shall be true and correct as of the Effective Date, except to the extent that such representation or warranty expressly relates solely to an earlier date. (f) No Termination Event. No Incipient Termination Event or -------------------- Termination Event hereunder or any "Event of Default" or "Default" (each as defined in the Credit 12 Agreement) shall have occurred and be continuing or would result after giving effect to any of the transactions contemplated on the Closing Date. (g) Audit. The Administrative Agent shall have completed a ----- satisfactory prefunding audit of the Receivables as of the Closing Date. (h) Credit Agreement. The Parent shall have commitments under the ---------------- Credit Agreement of no less than $256,108,000. (i) Combined Availability. After giving effect to the initial --------------------- Advance hereunder and the initial loans to be made to the Parent under the Credit Agreement, the Combined Availability is at least $20,000,000. (j) Material Adverse Change. There will have been (i) except for ----------------------- matters disclosed in reports publicly filed with the SEC under the Securities Act of 1934 on or prior to May 15, 2001, no material adverse change, individually or in the aggregate, (x) in the business, the industry which the Parent or any Originator operates, the financial or other condition or prospects of the Parent, the Servicer, or any Originator, (y) in the prices at which Sugar Contracts are repriced by any of the Originators or the Parent, or (z) in the Receivables, (ii) no litigation commenced which, if successful, would have a material adverse impact on the Parent, the Servicer, the Originators, their business, or which would challenge the transactions contemplated under this Agreement, the Funding Agreement and the other Related Documents, and (iii) since the Parent's last audited financial statements and as otherwise disclosed in the financial projections provided to the Administrative Agent in the revised business plan delivered on May 24, 2001, no material increase in the liabilities, liquidated or contingent, of the Parent or the Originators, or material decrease in the assets of the Parent or the Originators (other than such reductions provided for under accounting treatment solely as a result of fresh-start accounting). Section 3.02. Conditions Precedent to All Advances. No Lender ------------------------------------ shall be obligated to make any Advances hereunder (including the initial Advance) on any date if, as of the date thereof: (a) solely with respect to the initial Advance made hereunder, the plan of reorganization with respect to the Imperial Bankruptcy Proceeding (the "Plan of Reorganization") shall not have been confirmed by a final order entered by the bankruptcy court (the "Confirmation Order"), which Plan of Reorganization ------------------ (i) is acceptable to the Administrative Agent and the Lenders, (ii) approves this Agreement and the other Related Documents, (iii) shall not have been stayed by the bankruptcy court, and (iv) shall be effective and not subject to any appeals, review, rehearing or certiorari; provided; that, without limiting the -------- general applicability of the foregoing, the Confirmation Order shall be in full force and effect and shall specifically provide that (1) the terms of each of the Related Documents are approved and ratified as being entered into in good faith, providing the most favorable financing terms and being critical to the success and feasibility of the Plan of Reorganization, and (2) each of the Related Agreements, including, without limitation, UCC financing statements and mortgages signed by the Parent's predecessor debtor as debtor-in-possession, shall be binding upon and enforceable against each 13 Originator, the Parent and the Borrower upon and after the effective date of Confirmation Order as if executed and delivered by each Originator, the Parent and the Borrower as reorganized debtors, notwithstanding any provision in the Plan of Reorganization or the Confirmation Order to the contrary; (b) any representation or warranty of the Borrower or the Servicer contained herein or in any of the other Related Documents shall be untrue or incorrect as of such date, either before or after giving effect to the Advances on such date and to the application of the proceeds therefrom, except to the extent that such representation or warranty expressly relates to an earlier date and except for changes therein expressly permitted by this Agreement; (c) any event shall have occurred, or would result from such Advances or from the application of the proceeds therefrom, that constitutes an Incipient Termination Event, a Termination Event, an Incipient Servicer Termination Event or an Event of Servicer Termination; (d) the Borrower shall not be in compliance with any of its covenants or other agreements set forth herein; (e) the Commitment Termination Date shall have occurred; (f) either before or after giving effect to such Advance and to the application of the proceeds therefrom, a Funding Excess would exist; (g) any Originator, the Borrower or the Servicer shall fail to have taken such other action, including delivery of approvals, consents, opinions, documents and instruments to the Lenders and the Administrative Agent, as any Lender or the Administrative Agent may reasonably request; (h) on or prior to such date, the Borrower or the Servicer shall have delivered all Monthly Reports and Borrowing Base Certificates required to be delivered in accordance with Section 5.02 hereof; or ------------ (i) the Administrative Agent shall have determined that any event or condition has occurred that has had, or could reasonably be expected to have or result in, a Material Adverse Effect. The delivery by the Borrower of a Borrowing Request and the acceptance by the Borrower of the funds from such Advance on any Advance Date shall be deemed to constitute, as of any such Advance Date, a representation and warranty by the Borrower that the conditions in this Section 3.02 have been satisfied. ------------ 14 ARTICLE IV. REPRESENTATIONS AND WARRANTIES Section 4.01. Representations and Warranties of the Borrower. To ---------------------------------------------- induce each Lender to make Advances from time to time and the Administrative Agent to take any action required to be performed by it hereunder, the Borrower makes the following representations and warranties to each Lender and the Administrative Agent on the Effective Date and each Advance Date, each and all of which shall survive the execution and delivery of this Agreement. (a) Existence; Compliance with Law. The Borrower (i) is a limited ------------------------------ liability company duly formed, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) is duly qualified to conduct business and is in good standing in each other jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; (iii) has the requisite power and authority and the legal right to own, pledge, mortgage or otherwise encumber and operate its properties, to lease the property it operates under lease, and to conduct its business, in each case, as now, heretofore and proposed to be conducted; (iv) has all licenses, permits, consents or approvals from or by, and has made all filings with, and has given all notices to, all Governmental Authorities having jurisdiction, to the extent required for such ownership, operation and conduct, except where the failure to comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; (v) is in compliance with its limited liability company agreement; and (vi) subject to specific representations set forth herein regarding ERISA, tax and other laws, is in compliance with all applicable provisions of law, except where the failure to comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. (b) Executive Offices; Collateral Locations; Corporate or Other Names; ------------------------------------------------------------------ FEIN. The state of organization and the organization identification number of - ---- the Borrower and current location of the Borrower's chief executive office, principal place of business, other offices, the premises within which any Borrower Collateral is stored or located, and the locations of its records concerning the Borrower Collateral (including originals of the Borrower Assigned Agreements) are set forth in Schedule 4.01(b) and none of such locations has ---------------- changed within the past 12 months (or such shorter time as the Borrower has been in existence). During the prior five years (or such shorter time as the Borrower has been in existence), except as set forth in Schedule 4.01(b), the ---------------- Borrower has not been known as or used any fictitious or trade name. In addition, Schedule 4.01(b) lists the federal employer identification number of ---------------- the Borrower. (c) Power, Authorization, Enforceable Obligations. The execution, --------------------------------------------- delivery and performance by the Borrower of this Agreement and the other Related Documents to which it is a party, the creation and perfection of all Liens and ownership interests provided for therein: (i) are within the Borrower's limited liability company power; (ii) have been duly authorized by all necessary or proper actions; (iii) do not contravene any provision of the Borrower's limited liability company agreement; (iv) do not violate any law or regulation, or any order or decree of any court or Governmental Authority; (v) do not conflict with or result in the breach or 15 termination of, constitute a default under or accelerate or permit the acceleration of any performance required by, any indenture, mortgage, deed of trust, lease, agreement or other instrument to which the Borrower or any Originator is a party or by which the Borrower or any Originator or any of the property of the Borrower or any Originator is bound; (vi) do not result in the creation or imposition of any Adverse Claim upon any of the property of the Borrower or any Originator; and (vii) do not require the consent or approval of any Governmental Authority or any other Person, except those which have been duly obtained, made or complied with prior to the Effective Date as provided in Section 3.01(b). The exercise by each of the Borrower, the Lenders or the - --------------- Administrative Agent of any of its rights and remedies under any Related Document to which it is a party, do not require the consent or approval of any Governmental Authority or any other Person (other than consents or approvals solely relating to or required to be obtained by a Lender or the Administrative Agent, and subject to the Bankruptcy Code), except those which will have been duly obtained, made or complied with prior to the Closing Date as provided in Section 3.01(b). On or prior to the Effective Date, each of the Related - --------------- Documents to which the Borrower is a party shall have been duly executed and delivered by the Borrower and each such Related Document shall then constitute a legal, valid and binding obligation of the Borrower enforceable against it in accordance with its terms. (d) No Litigation. Other than the Imperial Bankruptcy Proceeding no ------------- Litigation is now pending or, to the knowledge of the Borrower, threatened against the Borrower that (i) challenges the Borrower's right or power to enter into or perform any of its obligations under the Related Documents to which it is a party, or the validity or enforceability of any Related Document or any action taken thereunder, (ii) seeks to prevent the transfer, sale, pledge or contribution of any Receivable or the consummation of any of the transactions contemplated under this Agreement or the other Related Documents, or (iii) except as set forth on Schedule 4.01(d), has a reasonable risk of being ---------------- determined adversely to the Borrower and that, if so determined, could have a Material Adverse Effect. Except as set forth on Schedule 4.01(d), as of the ---------------- Effective Date there is no Litigation pending or threatened that seeks damages or injunctive relief against, or alleges criminal misconduct by, the Borrower. (e) Solvency. After giving effect to (i) the transactions -------- contemplated by this Agreement and the other Related Documents and (ii) the payment and accrual of all transaction costs in connection with the foregoing, the Borrower is and will be Solvent. (f) Material Adverse Effect. Since the date of the Borrower's ----------------------- organization, (i) the Borrower has not incurred any obligations, contingent or non-contingent liabilities, liabilities for charges, long-term leases or unusual forward or long-term commitments that, alone or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (ii) no contract, lease or other agreement or instrument has been entered into by the Borrower or has become binding upon the Borrower's assets and no law or regulation applicable to the Borrower has been adopted that has had or could reasonably be expected to have a Material Adverse Effect and (iii) the Borrower is not in default and no third party is in default under any material contract, lease or other agreement or instrument to which the Borrower is a party that alone or in the aggregate could reasonably be expected to have a Material Adverse Effect. Since the date of the Borrower's organization, no event has occurred with respect to the Borrower that alone or together with other events could reasonably be expected to have a Material Adverse Effect. 16 (g) Ownership of Property; Liens. None of the properties and assets ---------------------------- (including the Transferred Receivables) of the Borrower are subject to any Adverse Claims other than Permitted Encumbrances, and there are no facts, circumstances or conditions known to the Borrower that may result in (i) with respect to the Transferred Receivables, any Adverse Claims (including Adverse Claims arising under environmental laws) other than Permitted Encumbrances and (ii) with respect to its other properties and assets, any Adverse Claims (including Adverse Claims arising under environmental laws). The Borrower has received all assignments, bills of sale and other documents, and has duly effected all recordings, filings and other actions necessary to establish, protect and perfect the Borrower's right, title and interest in and to the Transferred Receivables and its other properties and assets. The Liens granted to the Lender pursuant to Section 8.01 will at all times be fully perfected ------------ first priority Liens in and to the Borrower Collateral. (h) Ventures, Subsidiaries and Affiliates; Outstanding Stock and ------------------------------------------------------------ Indebtedness. The Borrower has no Subsidiaries, and is not engaged in any joint - ------------ venture or partnership with any other Person. The Member is the sole member of the Borrower. There are no outstanding rights to purchase, options, warrants or similar rights or agreements pursuant to which the Borrower may be required to issue, sell, repurchase or redeem some or all of the membership interest of the Member. All outstanding Debt of the Borrower as of the Effective Date is described in Section 5.03(i). --------------- (i) Taxes. All tax returns, reports and statements, including ----- information returns, required by any Governmental Authority to be filed by the Borrower and each of its Affiliates included in the Parent Group have been filed with the appropriate Governmental Authority and all charges have been paid prior to the date on which any fine, penalty, interest or late charge may be added thereto for nonpayment thereof (or any such fine, penalty, interest, late charge or loss has been paid), excluding charges or other amounts being contested in accordance with Section 5.01(e). Proper and accurate amounts have been withheld --------------- by the Borrower or such Affiliate from its respective employees for all periods in full and complete compliance with all applicable federal, state, local and foreign laws and such withholdings have been timely paid to the respective Governmental Authorities. Schedule 4.01(i) sets forth as of the Effective Date ---------------- (i) those taxable years for which the Borrower's or such Affiliates' tax returns are currently being audited by the IRS or any other applicable Governmental Authority and (ii) any assessments or threatened assessments in connection with any such audit or otherwise currently outstanding. Except as described on Schedule 4.01(i), neither the Borrower nor any such Affiliate has executed or - ---------------- filed with the IRS or any other Governmental Authority any agreement or other document extending, or having the effect of extending, the period for assessment or collection of any charges. The Borrower is not liable for any charges: (A) under any agreement (including any tax sharing agreements) or (B) to the best of the Borrower's knowledge, as a transferee. As of the Effective Date, neither the Borrower nor any of its Affiliates included in the Parent Group has agreed or been requested to make any adjustment under IRC Section 481(a), by reason of a change in accounting method or otherwise, that would have a Material Adverse Effect. (j) Full Disclosure. All information contained in this Agreement, --------------- any Borrowing Base Certificate or any of the other Related Documents, or any written statement furnished by or on behalf of the Borrower to any Lender or the Administrative Agent pursuant to 17 the terms of this Agreement or any of the other Related Documents is true and accurate in every material respect, and none of this Agreement, any Borrowing Base Certificate or any of the other Related Documents, or any written statement furnished by or on behalf of the Borrower to any Lender or the Administrative Agent pursuant to the terms of this Agreement or any of the other Related Documents is misleading as a result of the failure to include therein a material fact (it being understood that the foregoing shall not apply to projections of (i) future financial information or (ii) information related to Receivables which information shall be based upon the Parent's reasonable good faith estimates). (k) ERISA. The Borrower is in compliance with ERISA and has not ----- incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) payable to the PBGC under ERISA. (l) Brokers. No broker or finder acting on behalf of the Borrower ------- was employed or utilized in connection with this Agreement or the other Related Documents or the transactions contemplated hereby or thereby and the Borrower has no obligation to any Person in respect of any finder's or brokerage fees in connection therewith. (m) Margin Regulations. The Borrower is not engaged in the business ------------------ of extending credit for the purpose of "purchasing" or "carrying" any "margin security," as such terms are defined in Regulation U of the Federal Reserve Board as now and from time to time hereafter in effect (such securities being referred to herein as "Margin Stock"). The Borrower owns no Margin Stock, and ------------ no portion of the proceeds of the Advances made hereunder will be used, directly or indirectly, for the purpose of purchasing or carrying any Margin Stock, for the purpose of reducing or retiring any Debt that was originally incurred to purchase or carry any Margin Stock or for any other purpose that might cause any portion of such proceeds to be considered a "purpose credit" within the meaning of Regulations T, U or X of the Federal Reserve Board. The Borrower will not take or permit to be taken any action that might cause any Related Document to violate any regulation of the Federal Reserve Board. (n) Nonapplicability of Bulk Sales Laws. No transaction contemplated ----------------------------------- by this Agreement or any of the Related Documents requires compliance with any bulk sales act or similar law. (o) Government Regulation. The Borrower is not an "investment --------------------- company" or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company," as such terms are defined in the Investment Company Act. The making of Advances by the Lenders hereunder, the application of the proceeds thereof and the consummation of the transactions contemplated by this Agreement and the other Related Documents will not violate any provision of any such statute or any rule, regulation or order issued by the Securities and Exchange Commission. (p) Nonconsolidation. The Borrower is operated in such a manner that ---------------- the separate corporate existence of the Borrower, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing: 18 (i) the Borrower is a limited purpose limited liability company whose activities are restricted in its limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Lenders and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof; (ii) Borrower shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Parent, from the Borrower's bank accounts, for services provided to the Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Borrower is also an employee, consultant or agent of Parent on a basis which reflects the respective services rendered to the Borrower and Parent and in accordance with the terms of the Administrative Services Agreement; (iii) Borrower shall pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement, from its own funds and allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the Administrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; (iv) other than the purchase and acceptance through capital contribution of Transferred Receivables, the acceptance of Subordinated Loans pursuant to the Subordinated Notes, the payment of distributions and the return of capital to the Member, the payment of Servicing Fees to the Servicer under this Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group; (v) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings and otherwise observes limited liability company formalities and has a business office separate from that of each member of the Parent Group; (vi) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower and the consolidated financial statements of the Parent Group shall contain a footnote to the effect that the Borrower's assets are not available to the creditors of any other member of the Parent Group; 19 (vii) (A) the Borrower maintains its assets separately from the assets of each member of the Parent Group (including through the maintenance of separate bank accounts and except for any Records to the extent necessary to assist the Servicer in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement the Borrower's funds (including all money, checks and other cash proceeds) and assets, and records relating thereto, have not been and are not commingled with those of any member of the Parent Group and (C) the separate creditors of the Borrower will be entitled to be satisfied out of the Borrower's assets prior to any value in the Borrower becoming available to the Member; (viii) except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower's organizational documents, no member of the Parent Group (A) pays the Borrower's expenses, (B) guarantees the Borrower's obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise; (ix) all business correspondence and other communications of the Borrower are conducted in the Borrower's own name, on its own stationery and through a separately-listed telephone number; (x) Borrower shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name; (xi) Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Lenders; (xii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables; (xiii) the Borrower maintains at least two independent directors each of whom (A) is not a Stockholder, director, officer, employee or associate, or any relative of the foregoing, of any member of the Parent Group (other than the Borrower), all as provided in its limited liability company agreement, (B) has (1) prior experience as an independent director for a corporation whose charter documents required the unanimous consent of all independent directors thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management, independent director services or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) is otherwise acceptable to the Lenders and the Administrative Agent; and 20 (xiv) the limited liability company agreement of the Borrower requires (A) the affirmative vote of each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower, and (B) the Borrower to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its members and board of directors. (q) Deposit and Disbursement Accounts. Schedule 4.01(q) lists all --------------------------------- ---------------- banks and other financial institutions at which the Borrower maintains deposit or other bank accounts as of the Closing Date, including any Lockbox Accounts and the Borrower Account, and such schedule correctly identifies the name, address and telephone number of each depository, the name in which the account is held, a description of the purpose of the account, and the complete account number therefor. The Borrower Account and each Lockbox Account constitute deposit accounts within the meaning of the UCC. The Borrower (or the Servicer on its behalf) has delivered to the Administrative Agent a fully executed agreement pursuant to which the Borrower Account Bank (with respect to the Borrower Account) and each Lockbox Account Bank (with respect to each Lockbox Account) has agreed to comply with all instructions originated by the Administrative Agent directing the disposition of funds in the Borrower Account and each Lockbox Account without further consent by the Borrower, the Servicer or any Originator. None of the Borrower Account or any Lockbox Account is in the name of any person other than the Borrower or the Administrative Agent, and the Borrower has not consented to the Borrower Account Bank or any Lockbox Account Bank following the instructions of any Person other than the Administrative Agent. Accordingly, the Administrative Agent has a first priority perfected security interest in the Borrower Account and each Lockbox Account, and all funds on deposit therein. (r) Transferred Receivables. ----------------------- (i) Transfers. Each Transferred Receivable was purchased by or --------- contributed to the Borrower on the relevant Transfer Date pursuant to the Sale Agreement. (ii) Eligibility. Each Transferred Receivable designated as an ----------- Eligible Receivable in each Borrowing Base Certificate constitutes an Eligible Receivable as of the date specified in such Borrowing Base Certificate. (iii) No Material Adverse Effect. The Borrower has no actual -------------------------- knowledge of any fact (including any defaults by the Obligor thereunder on any other Receivable) that would cause it or should have caused it to expect that any payments on any Transferred Receivable designated as an Eligible Receivable in any Borrowing Base Certificate will not be paid in full when due or that has caused it to expect any material adverse effect on any such Transferred Receivable. (iv) Nonavoidability of Transfers. The Borrower shall (A) have ---------------------------- received each Contributed Receivable as a contribution to the capital of the Borrower by the Member and (B) (1) have purchased each Sold Receivable from the applicable Originator for cash consideration or with the proceeds of a Subordinated Loan and (2) 21 have accepted assignment of any Eligible Receivables transferred pursuant to clause (b) of Section 4.04 of the Sale Agreement, in each case in an ---------- ------------ amount that constitutes fair consideration and reasonably equivalent value therefor. Each Sale of a Sold Receivable effected pursuant to the terms of the Sale Agreement shall not have been made for or on account of an antecedent debt owed by any Originator to the Borrower and no such Sale is or may be avoidable or subject to avoidance under any bankruptcy laws, rules or regulations. (s) Representations and Warranties in Other Related Documents. Each --------------------------------------------------------- of the representations and warranties of the Borrower contained in the Related Documents (other than this Agreement) is true and correct in all respects and the Borrower hereby makes each such representation and warranty to, and for the benefit of, the Lenders and the Administrative Agent as if the same were set forth in full herein. ARTICLE V. GENERAL COVENANTS OF THE BORROWER Section 5.01. Affirmative Covenants of the Borrower. The Borrower ------------------------------------- covenants and agrees that from and after the Effective Date and until the Termination Date: (a) Compliance with Agreements and Applicable Laws. The Borrower ---------------------------------------------- shall perform each of its obligations under this Agreement and the other Related Documents and comply with all federal, state and local laws and regulations applicable to it and the Transferred Receivables, including those relating to truth in lending, retail installment sales, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices, privacy, licensing, taxation, ERISA and labor matters and environmental laws and environmental permits. (b) Maintenance of Existence and Conduct of Business. The Borrower ------------------------------------------------ shall: (i) do or cause to be done all things necessary to preserve and keep in full force and effect its limited liability company existence and its rights and franchises; (ii) continue to conduct its business substantially as now conducted or as otherwise permitted hereunder and in accordance with (1) the terms of its limited liability company agreement, (2) Sections 4.01(p) and (3) the ---------------- assumptions set forth in each legal opinion of Baker Botts, L.L.P., or other counsel to the Borrower from time to time delivered pursuant to Section 3.02(d) of the Sale Agreement with respect to issues of substantive consolidation and true sale and absolute transfer; (iii) at all times maintain, preserve and protect all of its assets and properties used or useful in the conduct of its business, including all licenses, permits, charters and registrations, and keep the same in good repair, working order and condition in all material respects (taking into consideration ordinary wear and tear) and from time to time make, or cause to be made, all necessary or appropriate repairs, replacements and improvements thereto consistent with industry practices; and (iv) transact business only in the name of Imperial Sugar Securitization LLC or such trade names as are set forth in Schedule 5.01(b). ---------------- (c) Lockboxes; Deposit of Collections. The Borrower shall deposit or --------------------------------- cause to be deposited promptly into a Lockbox Account, and in any event no later than the first 22 Business Day after receipt thereof, all Collections it may receive with respect to any Transferred Receivable. (d) Use of Proceeds. The Borrower shall utilize the proceeds of the --------------- Advances made hereunder solely for (i) the purchase of Receivables from the Originators pursuant to the Sale Agreement, (ii) the payment of distributions to the Member, (iii) the repayment of Subordinated Loans, and (iv) the payment of administrative fees or Servicing Fees or expenses to the Servicer or routine administrative or operating expenses, in each case only as expressly permitted by and in accordance with the terms of this Agreement and the other Related Documents. (e) Payment, Performance and Discharge of Obligations. ------------------------------------------------- (i) Subject to Section 5.01(e)(ii), the Borrower shall pay, ------------------- perform and discharge or cause to be paid, performed and discharged promptly all charges payable by it, including (A) charges imposed upon it, its income and profits, or any of its property (real, personal or mixed) and all charges with respect to tax, social security and unemployment withholding with respect to its employees, and (B) lawful claims for labor, materials, supplies and services or otherwise before any thereof shall become past due. (ii) The Borrower may in good faith contest, by appropriate proceedings, the validity or amount of any charges or claims described in Section 5.01(e)(i); provided, that (A) adequate reserves with respect to ------------------ -------- such contest are maintained on the books of the Borrower, in accordance with GAAP, (B) such contest is maintained and prosecuted continuously and with diligence, (C) none of the Borrower Collateral becomes subject to forfeiture or loss as a result of such contest, (D) no Lien shall be imposed to secure payment of such charges or claims other than inchoate tax liens and (E) none of the Lenders or the Administrative Agent has advised the Borrower in writing that such Affected Party reasonably believes that failure to pay or to discharge such claims or charges could have or result in a Material Adverse Effect. (f) ERISA. The Borrower shall give the Administrative Agent prompt ----- written notice of any event that could result in the imposition of a Lien under Section 412 of the IRC or Section 302 or 4068 of ERISA. (g) Maintenance of Minimum Combined Availability. The Borrower shall -------------------------------------------- maintain the required Minimum Combined Availability. Section 5.02. Reporting Requirements of the Borrower. The Borrower -------------------------------------- hereby agrees that from and after the Effective Date until the Termination Date, it shall furnish or cause to be furnished to the Administrative Agent and the Lenders: (a) the financial statements, notices and other information at the times, to the Persons and in the manner set forth in Annex 5.02(a). ------------- 23 (b) As soon as available, and in any event no later than 11:00 a.m. (New York time) on the third Business Day of each week, a Borrowing Base Certificate, each of which shall be prepared by the Borrower or the Servicer as of the last day of the previous week; provided, that if (i) an Incipient -------- Termination Event or a Termination Event shall have occurred and be continuing or (ii) the Administrative Agent, in good faith, believes that an Incipient Termination Event or a Termination Event is imminent or deems the Lender's rights or interests in the Transferred Receivables or the Borrower Collateral insecure, then such reports shall be delivered daily. (c) Such other reports, statements and reconciliations with respect to the Borrowing Base or Borrower Collateral as the Lenders or the Administrative Agent shall from time to time request in its reasonable discretion. Section 5.03. Negative Covenants of the Borrower. The Borrower ---------------------------------- covenants and agrees that, without the prior written consent of the Lenders and the Administrative Agent, from and after the Effective Date until the Termination Date: (a) Sale of Membership Interests and Assets. The Borrower shall not --------------------------------------- sell, transfer, convey, assign or otherwise dispose of, or assign any right to receive income in respect of, any of its properties or other assets, including its membership interests (whether in a public or a private offering or otherwise) (other than in connection with the pledge by the Member of its membership interest in the Borrower to the lenders in connection with the Credit Agreement), any Transferred Receivable or Contract therefor or any of its rights with respect to any Lockbox or any Lockbox Account, the Collection Account or any other deposit account in which any Collections of any Transferred Receivable are deposited except as otherwise expressly permitted by this Agreement or any of the other Related Documents. (b) Liens. The Borrower shall not create, incur, assume or permit to ----- exist (i) any Adverse Claim on or with respect to its Transferred Receivables or (ii) any Adverse Claim on or with respect to its other properties or assets (whether now owned or hereafter acquired) except for the Liens set forth in Schedule 5.03(b) and other Permitted Encumbrances. In addition, the Borrower - ---------------- shall not become a party to any agreement, note, indenture or instrument or take any other action that would prohibit the creation of a Lien on any of its properties or other assets in favor of the Lenders as additional collateral for the Borrower Obligations, except as otherwise expressly permitted by this Agreement or any of the other Related Documents. (c) Modifications of Receivables, Contracts or Credit and Collection ---------------------------------------------------------------- Policies. The Borrower shall not, without the prior written consent of the - -------- Administrative Agent, (i) extend, amend, forgive, discharge, compromise, waive, cancel or otherwise modify the terms of any Transferred Receivable or amend, modify or waive any term or condition of any Contract related thereto, provided, -------- that the Borrower may authorize the Servicer to take such actions as are expressly permitted by the terms of any Related Document or the Credit and Collection Policies, or (ii) amend, modify or waive any term or provision of the Credit and Collection Policies. 24 (d) Changes in Instructions to Obligors. The Borrower shall not make ----------------------------------- any change in its instructions to Obligors regarding the deposit of Collections with respect to the Transferred Receivables, except to the extent the Administrative Agent directs the Borrower to change such instructions to Obligors or the Administrative Agent consents in writing to such change. (e) Capital Structure and Business. The Borrower shall not (i) make ------------------------------ any changes in any of its business objectives, purposes or operations that could have or result in a Material Adverse Effect, (ii) make any change in its capital structure, including the issuance of any membership interests, warrants or other securities convertible into membership interests or any revision of the terms of its outstanding membership interests, or (iii) amend its certificate of formation or limited liability company agreement. The Borrower shall not engage in any business other than as provided in its organizational documents and the Related Documents. (f) Mergers, Subsidiaries, Etc. The Borrower shall not directly or --------------------------- indirectly, by operation of law or otherwise, (i) form or acquire any Subsidiary, or (ii) merge with, consolidate with, acquire all or substantially all of the assets or capital Stock of, or otherwise combine with or acquire, any Person. (g) Sale Characterization; Receivables Sale Agreement. The Borrower ------------------------------------------------- shall not make statements or disclosures, prepare any financial statements or in any other respect account for or treat the transactions contemplated by the Sale Agreement (including for accounting, tax and reporting purposes) in any manner other than (i) with respect to each Sale of each Sold Receivable effected pursuant to the Sale Agreement, as a true sale and absolute assignment of the title to and sole record and beneficial ownership interest of the Transferred Receivables by the Originators to the Borrower and (ii) with respect to each contribution of Contributed Receivables thereunder, as an increase in the stated capital of the Borrower. (h) Restricted Payments. Except for the Subordinated Loans, the ------------------- Borrower shall not enter into any lending transaction with any other Person. The Borrower shall not at any time (i) advance credit to any Person or (ii) declare any distributions, repurchase any membership interest, return any capital, or make any other payment or distribution of cash or other property or assets in respect of the Borrower's membership interest or make a repayment with respect to any Subordinated Loans if, after giving effect to any such advance or distribution, a Funding Excess, Incipient Termination Event or Termination Event would exist or otherwise result therefrom. (i) Indebtedness. The Borrower shall not create, incur, assume or ------------ permit to exist any Debt, except (i) Debt of the Borrower to any Affected Party, Indemnified Person, the Servicer or any other Person expressly permitted by this Agreement or any other Related Document, (ii) Subordinated Loans pursuant to the Subordinated Notes, (iii) deferred taxes, (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, and (v) endorser liability in connection with the endorsement of negotiable instruments for deposit or collection in the ordinary course of business. 25 (j) Prohibited Transactions. The Borrower shall not enter into, or ----------------------- be a party to, any transaction with any Person except as expressly permitted hereunder or under any other Related Document. (k) Investments. Except as otherwise expressly permitted hereunder ----------- or under the other Related Documents, the Borrower shall not make any investment in, or make or accrue loans or advances of money to, any Person, including the Member, any director, officer or employee of the Borrower, the Parent or any of the Parent's other Subsidiaries, through the direct or indirect lending of money, holding of securities or otherwise, except with respect to Transferred Receivables and Permitted Investments. (l) Commingling. The Borrower shall not deposit or permit the ----------- deposit of any funds that do not constitute Collections of Transferred Receivables into any Lockbox Account (other than collections related to Third- Party Receivables). If funds that are not Collections are deposited into a Lockbox Account and the Servicer has so notified the Administrative Agent in writing, the Administrative Agent shall promptly remit (or direct the applicable Lockbox Account Bank to remit) any such amounts that are not Collections to the applicable Originator or other Person designated in such notice from the Servicer. (m) ERISA. The Borrower shall not, and shall not cause or permit any ----- of its ERISA Affiliates to, cause or permit to occur an event that could result in the imposition of a Lien under Section 412 of the IRC or Section 302 or 4068 of ERISA. (n) Related Documents. The Borrower shall not amend, modify or waive ----------------- any term or provision of any Related Document without the prior written consent of the Administrative Agent. (o) Board Policies. The Borrower shall not modify the terms of any -------------- policy or resolutions of its board of directors if such modification could have or result in a Material Adverse Effect. (p) Additional Members of Borrower. The Borrower shall not admit any ------------------------------ additional member without the prior written consent of the Administrative Agent and the Lenders other than a "Special Member" as such term is defined in the Borrower's limited liability company agreement as of the date hereof. ARTICLE VI. COLLECTIONS AND DISBURSEMENTS Section 6.01. Establishment of Accounts. ------------------------- (a) The Lockbox Accounts. -------------------- (i) The Borrower has established with each Lockbox Bank one or more Lockbox Accounts. The Borrower agrees that the Administrative Agent shall have exclusive dominion and control of each Lockbox Account and all monies, instruments 26 and other property from time to time on deposit therein. The Borrower shall not make or cause to be made, or have any ability to make or cause to be made, any withdrawals from any Lockbox Account except as provided in Section 6.01(b)(ii). ------------------- (ii) The Borrower and the Servicer have instructed all existing Obligors of Transferred Receivables, and shall instruct all future Obligors of such Receivables, to make payments in respect thereof only (A) by check or money order mailed to one or more lockboxes or post office boxes under the control of the Administrative Agent (each a "Lockbox" and collectively ------- the "Lockboxes") or (B) by wire transfer or moneygram directly to a Lockbox --------- Account. Schedule 4.01(q) lists all Lockboxes and all Lockbox Banks at ---------------- which the Borrower maintains Lockbox Accounts as of the Effective Date, and such schedule correctly identifies (1) with respect to each such Lockbox Bank, the name, address and telephone number thereof, (2) with respect to each Lockbox Account, the name in which such account is held and the complete account number therefor, and (3) with respect to each Lockbox, the lockbox number and address thereof. The Borrower and the Servicer shall endorse, to the extent necessary, all checks or other instruments received in any Lockbox so that the same can be deposited in the Lockbox Account, in the form so received (with all necessary endorsements), on the first Business Day after the date of receipt thereof. In addition, each of the Borrower and the Servicer shall deposit or cause to be deposited into a Lockbox Account all cash, checks, money orders or other proceeds of Transferred Receivables or Borrower Collateral received by it other than in a Lockbox or a Lockbox Account, in the form so received (with all necessary endorsements), not later than the close of business on the first Business Day following the date of receipt thereof, and until so deposited all such items or other proceeds shall be held in trust for the benefit of the Administrative Agent. Neither the Borrower nor the Servicer shall make any deposits into a Lockbox or any Lockbox Account except in accordance with the terms of this Agreement or any other Related Document. (iii) If, for any reason, a Lockbox Account Agreement terminates or any Lockbox Bank fails to comply with its obligations under the Lockbox Account Agreement to which it is a party, then the Borrower shall promptly notify all Obligors of Transferred Receivables who had previously been instructed to make wire payments to a Lockbox Account maintained at any such Lockbox Bank to make all future payments to a new Lockbox Account in accordance with this Section 6.01(a)(iii). The Borrower shall not close -------------------- any such Lockbox Account unless it shall have (A) received the prior written consent of the Administrative Agent, (B) established a new account with the same Lockbox Bank or with a new depositary institution satisfactory to the Administrative Agent, (C) entered into an agreement covering such new account with such Lockbox Bank or with such new depositary institution substantially in the form of such Lockbox Account Agreement or that is satisfactory in all respects to the Administrative Agent (whereupon, for all purposes of this Agreement and the other Related Documents, such new account shall become a Lockbox Account, such new agreement shall become a Lockbox Account Agreement and any new depositary institution shall become a Lockbox Bank), and (D) taken all such action as the Administrative Agent shall require to grant and perfect a first priority Lien in such new Lockbox Account to the Lender under 27 Section 8.01 of this Agreement. Except as permitted by this Section ------------ ------- 6.01(a), neither the Borrower nor the Servicer shall open any new Lockbox ------- or Lockbox Account without the prior written consent of the Administrative Agent. (b) Collection Account. ------------------ (i) The Lenders have established and shall maintain the Collection Account with Bankers Trust Company (the "Depositary"). The Collection Account shall be registered in the name of the Administrative Agent and the Administrative Agent shall, subject to the terms of this Agreement, have exclusive dominion and control thereof and of all monies, instruments and other property from time to time on deposit therein. (ii) The Borrower shall instruct each Lockbox Bank to transfer, and the Borrower hereby grants the Administrative Agent the authority to instruct each such Lockbox Bank to transfer, on each Business Day in same day funds, all available funds in each Lockbox Account to the Collection Account. The Lenders and the Administrative Agent may deposit into the Collection Account from time to time all monies, instruments and other property received by any of them as proceeds of the Transferred Receivables. (iii) If, for any reason, the Depositary wishes to resign as depositary of the Collection Account or fails to carry out the instructions of the Administrative Agent, then the Administrative Agent shall promptly notify the Lenders. Neither the Lenders nor the Administrative Agent shall close the Collection Account unless (A) a new deposit account has been established with the Depositary, (B) the Lenders and the Administrative Agent have entered into an agreement covering such new account with such new depositary institution satisfactory in all respects to the Administrative Agent (whereupon such new account shall become the Collection Account for all purposes of this Agreement and the other Related Documents), and (C) the Lenders and the Administrative Agent have taken all such action as the Administrative Agent shall require to grant and perfect a first priority Lien in such new Collection Account to the Administrative Agent on behalf of the Lenders. (c) Borrower Account. ---------------- (i) The Borrower has established the Borrower Account and agrees that the Administrative Agent shall have exclusive dominion and control of such Borrower Account and all monies, instruments and other property from time to time on deposit therein. (ii) The Administrative Agent hereby agrees that until such time as it instructs the Borrower Account Bank otherwise, the Borrower shall have the right to give instruction for the withdrawal, transfer or payment of funds on deposit in the Borrower Account. The Administrative Agent further agrees that it shall not instruct the Borrower Account Bank to no longer accept instructions from the Borrower unless an Incipient Termination Event or a Termination Event shall have occurred and be continuing. 28 ARTICLE VII. SERVICER PROVISIONS Section 7.01. Appointment of the Servicer. Each of the Lenders hereby --------------------------- appoints the Servicer as its agent, and the Borrower hereby acknowledges such appointment, to service the Transferred Receivables and enforce its rights and interests in and under each Transferred Receivable and Contract therefor and to serve in such capacity until the termination of its responsibilities pursuant to Sections 9.02 or 11.01. In connection therewith, the Servicer hereby accepts - ------------- ----- such appointment and agrees to perform the duties and obligations set forth herein. The Servicer may, with the prior written consent of each Lender and the Administrative Agent, subcontract with a Sub-Servicer for the collection, servicing or administration of the Transferred Receivables; provided, that (a) -------- the Servicer shall remain liable for the performance of the duties and obligations of such Sub-Servicer pursuant to the terms hereof and (b) any Sub- Servicing Agreement that may be entered into and any other transactions or services relating to the Transferred Receivables involving a Sub-Servicer shall be deemed to be between the Sub-Servicer and the Servicer alone, and the Lenders and the Administrative Agent shall not be deemed parties thereto and shall have no obligations, duties or liabilities with respect to the Sub-Servicer. Section 7.02. Duties and Responsibilities of the Servicer. Subject to ------------------------------------------- the provisions of this Agreement, the Servicer shall conduct the servicing, administration and collection of the Transferred Receivables and shall take, or cause to be taken, all actions that (i) may be necessary or advisable to service, administer and collect each Transferred Receivable from time to time, (ii) the Servicer would take if the Transferred Receivables were owned by the Servicer, and (iii) are consistent with industry practice for the servicing of such Transferred Receivables. Section 7.03. Collections on Receivables. -------------------------- (a) In the event that the Servicer is unable to determine the specific Transferred Receivables on which Collections have been received from the Obligor thereunder, the parties agree for purposes of this Agreement only that such Collections shall be deemed to have been received on such Receivables in the order in which they were originated with respect to such Obligor. In the event that the Servicer is unable to determine the specific Transferred Receivables on which discounts, offsets or other non-cash reductions have been granted or made with respect to the Obligor thereunder, the parties agree for purposes of this Agreement only that such reductions shall be deemed to have been granted or made (i) prior to a Termination Event, on such Receivables as determined by the Servicer, and (ii) from and after the occurrence of a Termination Event, in the reverse order in which they were originated with respect to such Obligor. (b) If the Servicer determines that amounts unrelated to the Transferred Receivables (the "Unrelated Amounts") have been deposited in the ----------------- Collection Account, then the Servicer shall provide written evidence thereof to the Lenders and the Administrative Agent no later than the first Business Day following the day on which the Servicer had actual knowledge 29 thereof, which evidence shall be provided in writing and shall be otherwise satisfactory to each such Affected Party. Upon receipt of any such notice, the Administrative Agent shall, if such amounts have not been applied to the Borrower Obligations, segregate the Unrelated Amounts and the same shall not be deemed to constitute Collections on Transferred Receivables. Section 7.04. Authorization of the Servicer. Each of the Lenders ----------------------------- hereby authorizes the Servicer, and the Borrower acknowledges such authorization, to take any and all reasonable steps in its name and on its behalf necessary or desirable and not inconsistent with the rights of the Administrative Agent and the Lenders hereunder, in the determination of the Servicer, to (a) collect all amounts due under any Transferred Receivable, including endorsing its name on checks and other instruments representing Collections on such Receivable, and execute and deliver any and all instruments of satisfaction or cancellation or of partial or full release or discharge and all other comparable instruments with respect to any such Receivable and (b) after any Transferred Receivable becomes a Delinquent Receivable or a Defaulted Receivable and to the extent permitted under and in compliance with applicable law and regulations, commence proceedings with respect to the enforcement of payment of any such Receivable and the Contract therefor and adjust, settle or compromise any payments due thereunder, in each case to the same extent as the applicable Originator could have done if it had continued to own such Receivable. Each Originator, the Borrower, the Administrative Agent and each Lender shall furnish the Servicer with any powers of attorney and other documents necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder. Notwithstanding anything to the contrary contained herein, the Lenders and the Administrative Agent shall have the absolute and unlimited right to direct the Servicer (i) to commence or settle any legal action to enforce collection of any Transferred Receivable or (ii) to foreclose upon, repossess or take any other action that the Administrative Agent deems necessary or advisable with respect thereto. In no event shall the Servicer be entitled to make any Affected Party a party to any Litigation without such Affected Party's express prior written consent, or to make the Borrower a party to any Litigation without the Administrative Agent's consent. Section 7.05. Servicing Fees. As compensation for its servicing -------------- activities and as reimbursement for its reasonable expenses in connection therewith, the Servicer shall be entitled to receive the Servicing Fees in accordance with Section 2.07. The Servicer shall be required to pay for all ------------ expenses incurred by it in connection with its activities hereunder (including any payments to accountants, counsel or any other Person) and shall not be entitled to any payment therefor other than the Servicing Fees. Section 7.06. Representations and Warranties of the Servicer. To ---------------------------------------------- induce the Lenders to make Advances from time to time and the Administrative Agent to take any action required to be performed by it hereunder, the Servicer makes the following representations and warranties to each Lender and the Administrative Agent on the Effective Date and each Advance Date, which shall survive the execution and delivery of this Agreement: (a) Corporate Existence; Compliance with Law. The Servicer (i) is a ---------------------------------------- corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) is duly qualified to conduct business and is in good standing in each other jurisdiction where its ownership or lease of property or the conduct of its business 30 requires such qualification; (iii) has the requisite corporate power and authority and the legal right to own, pledge, mortgage or otherwise encumber and operate its properties, to lease the property it operates under lease, and to conduct its business, in each case, as now, heretofore and proposed to be conducted; (iv) has all licenses, permits, consents or approvals from or by, and has made all filings with, and has given all notices to, all Governmental Authorities having jurisdiction, to the extent required for such ownership, operation and conduct; (v) is in compliance with its charter and bylaws; and (vi) subject to specific representations set forth herein regarding ERISA, tax and other laws, is in compliance with all applicable provisions of law, except (in the case of each of the foregoing clauses (ii) through (vi)) where the failure to comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. (b) Corporate Power, Authorization, Enforceable Obligations. The ------------------------------------------------------- execution, delivery and performance by the Servicer of this Agreement and the other Related Documents to which it is a party and, solely with respect to clause (vii) below, the exercise by each of the Borrower, the Lenders or the Administrative Agent of any of its rights and remedies under any Related Document to which it is a party (i) are within the Servicer's corporate power; (ii) have been duly authorized by all necessary or proper corporate and shareholder action; (iii) do not contravene any provision of the Servicer's charter or bylaws; (iv) do not violate any law or regulation, or any order or decree of any court or Governmental Authority; (v) do not conflict with or result in the breach or termination of, constitute a default under or accelerate or permit the acceleration of any performance required by, any indenture, mortgage, deed of trust, lease, agreement or other instrument to which the Servicer is a party or by which the Servicer or any of the property of the Servicer is bound; (vi) do not result in the creation or imposition of any Adverse Claim upon any of the property of the Servicer; and (vii) do not require the consent or approval of any Governmental Authority or any other Person, except those which have been duly obtained, made or complied with prior to the Closing Date as provided in Section 3.01(b). On or prior to the Effective Date, --------------- each of the Related Documents to which the Servicer is a party shall have been duly executed and delivered by the Servicer and each such Related Document shall then constitute a legal, valid and binding obligation of the Servicer enforceable against it in accordance with its terms. (c) No Litigation. Other than the Imperial Bankruptcy Proceeding, no ------------- Litigation is now pending or, to the knowledge of the Servicer, threatened against the Servicer that (i) challenges the Servicer's right or power to enter into or perform any of its obligations under the Related Documents to which it is a party, or the validity or enforceability of any Related Document or any action taken thereunder, (ii) seeks to prevent the transfer, sale, pledge or contribution of any Receivable or the consummation of any of the transactions contemplated under this Agreement or the other Related Documents, or (iii) except as set forth on Schedule 7.06(c), has a reasonable risk of being ---------------- determined adversely to the Servicer and that, if so determined, could have a Material Adverse Effect. (d) Solvency. Both before and after giving effect to (i) the -------- transactions contemplated by this Agreement and the other Related Documents and (ii) the payment and accrual of all transaction costs in connection with the foregoing, the Servicer is and will be Solvent. 31 (e) Taxes. All tax returns, reports and statements, including ----- information returns, required by any Governmental Authority to be filed by the Servicer and each of its Affiliates included in the Parent Group have been filed with the appropriate Governmental Authority and all charges have been paid prior to the date on which any fine, penalty, interest or late charge may be added thereto for nonpayment thereof (or any such fine, penalty, interest, late charge or loss has been paid), excluding charges or other amounts being contested in accordance with Section 5.01(e) or other amounts not paid by any member of the --------------- Parent Group other than the Servicer the nonpayment of which would not have a Material Adverse Effect. Proper and accurate amounts have been withheld by the Servicer or such Affiliate from its respective employees for all periods in full and complete compliance with all applicable federal, state, local and foreign laws and such withholdings have been timely paid to the respective Governmental Authorities. Schedule 7.06(e) sets forth as of the Closing Date (i) those ---------------- taxable years for which the Servicer's or such Affiliates' tax returns are currently being audited by the IRS or any other applicable Governmental Authority and (ii) any assessments or threatened assessments in connection with any such audit or otherwise currently outstanding. Except as described on Schedule 7.06(e), neither the Servicer nor any such Affiliate has executed or - ---------------- filed with the IRS or any other Governmental Authority any agreement or other document extending, or having the effect of extending, the period for assessment or collection of any charges. The Servicer is not liable for any charges: (A) under any agreement (including any tax sharing agreements) or (B) to the best of the Servicer's knowledge, as a transferee. As of the Closing Date, neither the Servicer nor any of its Affiliates included in the Parent Group has agreed or been requested to make any adjustment under IRC Section 481(a), by reason of a change in accounting method or otherwise, that would have a Material Adverse Effect. (f) Full Disclosure. To the extent prepared by or based upon --------------- information provided by the Servicer, all information contained in this Agreement, any Borrowing Base Certificate or any of the other Related Documents, or any written statement furnished to any Lender or the Administrative Agent pursuant to the terms of this Agreement or any of the other Related Documents is true and accurate in every material respect, and none of this Agreement, any Borrowing Base Certificate or any of the other Related Documents, or any written statement furnished to any Lender or the Administrative Agent pursuant to the terms of this Agreement or any of the other Related Documents is misleading as a result of the failure to include therein a material fact (it being understood that the foregoing shall not apply to projections of (i) future financial information or (ii) information related to Receivables which information shall be based upon the Parent's reasonable good faith estimates). (g) ERISA. The Servicer is in compliance with ERISA and has not ----- incurred and does not expect to incur any liabilities (except for premium payments arising in the ordinary course of business) payable to the PBGC under ERISA except with respect to instances of the foregoing that would not be reasonably expected to have a Material Adverse Effect. (h) Brokers. No broker or finder acting on behalf of the Servicer was ------- employed or utilized in connection with this Agreement or the other Related Documents or the transactions contemplated hereby or thereby and the Servicer has no obligation to any Person in respect of any finder's or brokerage fees in connection therewith. 32 (i) Margin Regulations. The Servicer is not engaged in the business ------------------ of extending credit for the purpose of "purchasing" or "carrying" any "margin security," as such terms are defined in Regulation U of the Federal Reserve Board as now and from time to time hereafter in effect (such securities being referred to herein as "Margin Stock"). The Servicer owns no Margin Stock, and no portion of the proceeds of the Advances made hereunder will be used, directly or indirectly, for the purpose of purchasing or carrying any Margin Stock, for the purpose of reducing or retiring any Debt that was originally incurred to purchase or carry any Margin Stock or for any other purpose that might cause any portion of such proceeds to be considered a "purpose credit" within the meaning of Regulations T, U or X of the Federal Reserve Board. The Servicer will not take or permit to be taken any action that might cause any Related Document to violate any regulation of the Federal Reserve Board. (j) Government Regulation. The Servicer is not an "investment --------------------- company" or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company," as such terms are defined in the Investment Company Act. (k) Deposit and Disbursement Accounts. Schedule 4.01(q) lists all --------------------------------- ---------------- banks and other financial institutions at which the Servicer maintains deposit or other bank accounts as of the Closing Date, including any Lockbox Accounts, and such schedule correctly identifies the name, address and telephone number of each depository, the name in which the account is held, a description of the purpose of the account, and the complete account number therefor. (l) No Material Adverse Effect. The Servicer has no actual knowledge -------------------------- of any fact (including any defaults by the Obligor thereunder on any other Receivable) that would cause it or should have caused it to expect that any payments on any Transferred Receivable designated as an Eligible Receivable in any Borrowing Base Certificate will not be paid in full when due or that has caused it to expect any material adverse effect on any such Transferred Receivable. (m) Representations and Warranties in Other Related Documents. Each --------------------------------------------------------- of the representations and warranties of the Servicer contained in the Related Documents (other than this Agreement) is true and correct in all respects and the Servicer hereby makes each such representation and warranty to, and for the benefit of, the Lenders and the Administrative Agent as if the same were set forth in full herein. Section 7.07. Covenants of the Servicer. The Servicer covenants and ------------------------- agrees that from and after the Effective Date and until the Termination Date: (a) Compliance with Agreements and Applicable Laws. The Servicer ---------------------------------------------- shall perform each of its obligations under this Agreement and the other Related Documents and comply with all federal, state and local laws and regulations applicable to it and the Transferred Receivables, including those relating to truth in lending, retail installment sales, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices, privacy, licensing, taxation, ERISA and labor matters and environmental laws and environmental permits. (b) Maintenance of Existence and Conduct of Business. The Servicer ------------------------------------------------ shall: (i) do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and its rights and franchises; (ii) continue to conduct its business 33 substantially as now conducted or as otherwise permitted hereunder and in accordance with the terms of its certificate of incorporation and bylaws, (iii) at all times maintain, preserve and protect all of its assets and properties used or useful in the conduct of its business, including all licenses, permits, charters and registrations, and keep the same in good repair, working order and condition in all material respects (taking into consideration ordinary wear and tear) and from time to time make, or cause to be made, all necessary or appropriate repairs, replacements and improvements thereto consistent with industry practices; and (iv) transact business only in such corporate and trade names as are set forth in Schedule 7.07(b). ---------------- (c) Deposit of Collections. The Servicer shall deposit or cause to be ---------------------- deposited promptly into a Lockbox Account, and in any event no later than the first Business Day after receipt thereof, all Collections it may receive with respect to any Transferred Receivable. (d) ERISA. The Servicer shall give the Administrative Agent prompt ----- written notice of any event that could result in the imposition of a Lien under Section 412 of the IRC or Section 302 or 4068 of ERISA. (e) Compliance with Credit and Collection Policies. The Servicer ---------------------------------------------- shall comply in all respects with the Credit and Collection Policies with respect to each Transferred Receivable and the Contract therefor. The Servicer shall not amend, waive or modify any term or provision of the Credit and Collection Policies. (f) Ownership of Transferred Receivables. The Servicer shall identify ------------------------------------ the Transferred Receivables clearly and unambiguously in its Servicing Records to reflect that a Lien on such Transferred Receivables has been granted to the Administrative Agent for the benefit of the Lenders. Section 7.08. Reporting Requirements of the Servicer. The Servicer -------------------------------------- hereby agrees that, from and after the Effective Date and until the Termination Date, it shall deliver or cause to be delivered to the Lenders and the Administrative Agent the financial statements, notices, and other information at the times, to the Persons and in the manner set forth in Section 5.02 and Annex ------------ ----- 5.02(a). The proviso in the definition of Settlement Period shall not affect - ------- the timing of any delivery of any such information set forth in Section 5.02 or ------------ Annex 5.02(a) or the time period covered by any such information. - ------------ ARTICLE VIII. GRANT OF SECURITY INTERESTS Section 8.01. Borrower's Grant of Security Interest. To secure the ------------------------------------- prompt and complete payment, performance and observance of all Borrower Obligations, and to induce the Administrative Agent and the Lenders to enter into this Agreement and perform the obligations required to be performed by them hereunder in accordance with the terms and conditions thereof, the Borrower hereby grants, assigns, conveys, pledges, hypothecates and transfers to the Administrative Agent, for the benefit of itself and the Lenders a Lien upon and security interest in all of its right, title and interest in, to and under, but none of its obligations arising from, the 34 following property, whether now owned by or owing to, or hereafter acquired by or arising in favor of, the Borrower (including under any trade names, styles or derivations of the Borrower), and regardless of where located (all of which being hereinafter collectively referred to as the "Borrower Collateral"): ------------------- (a) all Receivables; (b) the Sale Agreement, all Lockbox Account Agreements and all other Related Documents now or hereafter in effect relating to the purchase, servicing or processing of Receivables (collectively, the "Borrower Assigned Agreements"), ---------------------------- including (i) all rights of the Borrower to receive moneys due and to become due thereunder or pursuant thereto, (ii) all rights of the Borrower to receive proceeds of any insurance, indemnity, warranty or guaranty with respect thereto, (iii) all claims of the Borrower for damages or breach with respect thereto or for default thereunder and (iv) the right of the Borrower to amend, waive or terminate the same and to perform and to compel performance and otherwise exercise all remedies thereunder; (c) all of the following (collectively, the "Borrower Account ---------------- Collateral"): - ---------- (i) the Lockbox Accounts, the Lockboxes, and all funds on deposit therein and all certificates and instruments, if any, from time to time representing or evidencing the Lockbox Accounts, the Lockboxes or such funds, (ii) the Collection Account and all funds on deposit therein and all certificates and instruments, if any, from time to time representing or evidencing the Collection Account or such funds, (iii) all notes, certificates of deposit and other instruments from time to time delivered to or otherwise possessed by any Lender or any assignee or agent on behalf of any Lender in substitution for or in addition to any of the then existing Borrower Account Collateral, and (iv) all interest, dividends, cash, instruments, investment property and other property from time to time received, receivable or otherwise distributed with respect to or in exchange for any and all of the then existing Borrower Account Collateral; (d) all other property that may from time to time hereafter be granted and pledged by the Borrower or by any Person on its behalf under this Agreement, including any deposit with any Lender or the Administrative Agent of additional funds by the Borrower; and (e) to the extent not otherwise included, all proceeds and products of the foregoing and all accessions to, substitutions and replacements for, and profits of, each of the foregoing Borrower Collateral (including proceeds that constitute property of the types described in Sections 8.01(a) through (d)). ---------------- --- Section 8.02. Borrower's Certification. The Borrower hereby certifies ------------------------ that (a) the benefits of the representations, warranties and covenants of each Originator made to the 35 Borrower under the Sale Agreement have been assigned by the Borrower to the Administrative Agent for the benefit of the Lenders hereunder; (b) the rights of the Borrower to require payment of a Rejected Amount from an Originator under the Sale Agreement may be enforced by the Lenders and the Administrative Agent; and (c) the Sale Agreement provides that the representations, warranties and covenants described in Sections 4.01, 4.02 and 4.03 thereof, the indemnification ------------- ---- ---- and payment provisions of Article V thereof and the provisions of Sections --------- 4.03(j), 8.03 and 8.14 thereof shall survive the sale of the Transferred - ------- ---- ---- Receivables (and undivided percentage ownership interests therein) and the termination of the Sale Agreement and this Agreement. Section 8.03. Delivery of Collateral. All certificates or instruments ---------------------- representing or evidencing the Borrower Collateral shall be delivered to and held by or on behalf of the Administrative Agent and shall be in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Administrative Agent. The Administrative Agent shall have the right (a) at any time to exchange certificates or instruments representing or evidencing Borrower Collateral for certificates or instruments of smaller or larger denominations and (b) at any time in its discretion following the occurrence and during the continuation of a Termination Event and without notice to the Borrower, to transfer to or to register in the name of the Administrative Agent or its nominee any or all of the Borrower Collateral. Section 8.04. Borrower Remains Liable. It is expressly agreed by the ----------------------- Borrower that, anything herein to the contrary notwithstanding, the Borrower shall remain liable under any and all of the Transferred Receivables, the Contracts therefor, the Borrower Assigned Agreements and any other agreements constituting the Borrower Collateral to which it is a party to observe and perform all the conditions and obligations to be observed and performed by it thereunder. The Lenders and the Administrative Agent shall not have any obligation or liability under any such Receivables, Contracts or agreements by reason of or arising out of this Agreement or the granting herein or therein of a Lien thereon or the receipt by the Administrative Agent or the Lenders of any payment relating thereto pursuant hereto or thereto. The exercise by any Lender or the Administrative Agent of any of its respective rights under this Agreement shall not release any Originator, the Borrower or the Servicer from any of their respective duties or obligations under any such Receivables, Contracts or agreements. None of the Lenders or the Administrative Agent shall be required or obligated in any manner to perform or fulfill any of the obligations of any Originator, the Borrower or the Servicer under or pursuant to any such Receivable, Contract or agreement, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any such Receivable, Contract or agreement, or to present or file any claims, or to take any action to collect or enforce any performance or the payment of any amounts that may have been assigned to it or to which it may be entitled at any time or times. Section 8.05. Covenants of the Borrower and the Servicer Regarding the -------------------------------------------------------- Borrower Collateral. - ------------------- (a) Offices and Records. The Borrower shall maintain its principal ------------------- place of business and chief executive office and the office at which it stores its Records at the respective 36 locations specified in Schedule 4.01(b) or, upon 30 days' prior written notice ---------------- to the Administrative Agent, at such other location in a jurisdiction where all action requested by the Administrative Agent pursuant to Section 14.14 shall ------------- have been taken with respect to the Borrower Collateral. Each of the Borrower and the Servicer shall, at its own cost and expense, maintain adequate and complete records of the Transferred Receivables and the Borrower Collateral, including records of any and all payments received, credits granted and merchandise returned with respect thereto and all other dealings therewith. Each of the Borrower and the Servicer shall, by no later than the Effective Date, mark conspicuously with a legend, in form and substance satisfactory to the Administrative Agent, its books and records (including computer records) and credit files pertaining to the Borrower Collateral, and its file cabinets or other storage facilities where it maintains information pertaining thereto, to evidence this Agreement and the assignment and Liens granted pursuant to this Article VIII. Upon the occurrence and during the continuance of a Termination - ------------ Event, the Borrower and the Servicer shall deliver and turn over such books and records to the Administrative Agent or its representatives at any time on demand of the Administrative Agent. Prior to the occurrence of a Termination Event and upon notice from the Administrative Agent, the Borrower and the Servicer shall permit any representative of the Administrative Agent to inspect such books and records and shall provide photocopies thereof to the Administrative Agent as more specifically set forth in Section 8.06(b). --------------- (b) Access. Each of the Borrower and the Servicer shall, at its own ------ expense, during normal business hours, from time to time upon one Business Day's prior notice as frequently as the Administrative Agent determines to be appropriate: (i) provide the Lenders, the Administrative Agent and any of their respective officers, employees and agents access to its properties (including properties utilized in connection with the collection, processing or servicing of the Transferred Receivables), facilities, advisors and employees (in the presence of an officer if so requested by the Borrower or the Servicer and if such officer is provided within one day of such request) (including officers) and to the Borrower Collateral, (ii) permit the Lenders, the Administrative Agent and any of their respective officers, employees and agents to inspect, audit and make extracts from its books and records, including all Records, (iii) permit the Lenders or the Administrative Agent and their respective officers, employees and agents to inspect, review and evaluate the Transferred Receivables and the Borrower Collateral and (iv) permit the Lenders or the Administrative Agent and their respective officers, employees and agents to discuss matters relating to the Transferred Receivables or its performance under this Agreement or the other Related Documents or its affairs, finances and accounts with any of its officers, directors, employees (in the presence of an officer if so requested by the Borrower or the Servicer and if such officer is provided within one day of such request), representatives or agents (in each case, with those persons having knowledge of such matters) and with its independent certified public accountants (in the presence of an officer if so requested by the Borrower or the Servicer and if such officer is provided within one day of such request). If (i) the Administrative Agent in good faith deems any Lender's rights or interests in the Transferred Receivables, the Borrower Assigned Agreements or any other Borrower Collateral insecure or the Administrative Agent, in good faith believes that an Incipient Termination Event or a Termination Event is imminent or (ii) an Incipient Termination Event or a Termination Event shall have occurred and be continuing then each of the Borrower and the Servicer shall, at its own expense, provide such access at all times without prior notice from the Administrative Agent and provide the Lenders 37 or the Administrative Agent with access to its suppliers and customers. Each of the Borrower and the Servicer shall make available to the Administrative Agent and its counsel, as quickly as is possible under the circumstances, originals or copies of all books and records, including Records, that the Administrative Agent may request. Each of the Borrower and the Servicer shall deliver any document or instrument necessary for the Administrative Agent, as the Administrative Agent may from time to time request, to obtain records from any service bureau or other Person that maintains records for the Borrower or the Servicer, and shall maintain duplicate records or supporting documentation on media, including computer tapes and discs owned by the Borrower or the Servicer. (c) Communication with Accountants. Each of the Borrower and the ------------------------------ Servicer authorizes the Lenders and the Administrative Agent to communicate directly with its independent certified public accountants (in the presence of an officer if so requested by the Borrower or the Servicer and if such officer is provided within one day of such request) and authorizes and shall instruct those accountants and advisors to disclose and make available to the Lenders and the Administrative Agent any and all financial statements and other supporting financial documents, schedules and information relating to the Borrower or the Servicer (including copies of any issued management letters) with respect to its business, financial condition and other affairs. (d) Collection of Transferred Receivables. Except as otherwise ------------------------------------- provided in this Section 8.06(d), the Servicer shall continue to collect or --------------- cause to be collected, at its sole cost and expense, all amounts due or to become due to the Borrower under the Transferred Receivables, the Borrower Assigned Agreements and any other Borrower Collateral. In connection therewith, the Borrower and the Servicer shall take such action as it, and from and after the occurrence and during the continuance of a Termination Event, the Administrative Agent, may deem necessary or desirable to enforce collection of the Transferred Receivables, the Borrower Assigned Agreements and the other Borrower Collateral; provided, that the Administrative Agent may, if a -------- Termination Event shall have occurred and be continuing without prior notice to the Borrower or the Servicer, notify any Obligor under any Transferred Receivable or obligors under the Borrower Assigned Agreements of the assignment of such Transferred Receivables or Borrower Assigned Agreements, as the case may be, to the Administrative Agent on behalf of the Lenders hereunder and direct that payments of all amounts due or to become due to the Borrower thereunder be made directly to the Administrative Agent or any servicer, collection agent or lockbox or other account designated by the Administrative Agent and, upon such notification and at the sole cost and expense of the Borrower, the Administrative Agent may enforce collection of any such Transferred Receivable or the Borrower Assigned Agreements and adjust, settle or compromise the amount or payment thereof. The Administrative Agent shall provide prompt notice to the Borrower and the Servicer of any such notification of assignment or direction of payment to the Obligors under any Transferred Receivables. (e) Performance of Borrower Assigned Agreements. Each of the Borrower ------------------------------------------- and the Servicer shall (i) perform and observe all the terms and provisions of the Borrower Assigned Agreements to be performed or observed by it, maintain the Borrower Assigned Agreements in full force and effect, enforce the Borrower Assigned Agreements in accordance 38 with their terms and take all action as may from time to time be requested by the Administrative Agent in order to accomplish the foregoing, and (ii) upon the request of and as directed by the Administrative Agent, make such demands and requests to any other party to the Borrower Assigned Agreements as are permitted to be made by the Borrower or the Servicer thereunder. (f) License for Use of Software and Other Intellectual Property. ----------------------------------------------------------- Unless expressly prohibited by the licensor thereof or any provision of applicable law, if any, each of the Borrower and the Servicer hereby grants to the Administrative Agent on behalf of the Lenders a limited license to use, without charge, the Borrower's and the Servicer's computer programs, software, printouts and other computer materials, technical knowledge or processes, data bases, materials, trademarks, registered trademarks, trademark applications, service marks, registered service marks, service mark applications, patents, patent applications, trade names, rights of use of any name, labels, fictitious names, inventions, designs, trade secrets, goodwill, registrations, copyrights, copyright applications, permits, licenses, franchises, customer lists, credit files, correspondence, and advertising materials or any property of a similar nature, as it pertains to the Borrower Collateral, or any rights to any of the foregoing, only as reasonably required in connection with the advertising for sale, and selling any of the Borrower Collateral, or exercising of any other remedies hereto, and each of the Borrower and the Servicer agrees that its rights under all licenses and franchise agreements shall inure to the Administrative Agent's benefit (on behalf of the Lenders) for purposes of the license granted herein. Except upon the occurrence and continuation of a Termination Event, the Administrative Agent and the Lenders agree not to use any such license without giving the Borrower and the Servicer prior written notice. ARTICLE IX. TERMINATION EVENTS Section 9.01. Termination Events. If any of the following events ------------------ (each, a "Termination Event") shall occur (regardless of the reason therefor): ----------------- (a) the Borrower shall (i) fail to make any payment of any Borrower Obligation when due and payable and the same shall remain unremedied for one Business Day or more, or (ii) fail or neglect to perform, keep or observe any other provision of this Agreement or the other Related Documents (other than any provision embodied in or covered by any other clause of this Section 9.01) and ------------ the same shall remain unremedied for two (2) Business Days or more after written notice thereof shall have been given by the Administrative Agent to the Borrower; or (b) (i) a default or breach shall occur under any other agreement, document or instrument to which an Originator, the Borrower or the Parent or any of its Subsidiaries is a party or by which any such Person or its property is bound, which agreement, document or instrument relates to or evidences Debt owed by such Person to General Electric Capital Corporation or any of its Affiliates, and such default or breach has not been waived; or (ii) a default or breach shall occur under any other agreement, document or instrument to which an Originator, the Borrower or the Parent or any of its Subsidiaries is a party or by which any such Person or its property is bound, and such default or breach has not been waived and (1) involves a Debt which, except 39 with respect to a Debt of the Borrower, is in an aggregate principal amount in excess of $1,000,000, (2) permits any holder of such Debt or a trustee or agent to cause such Debt or a portion thereof which, except with respect to the Borrower, is in excess of a principal amount of $1,000,000 in the aggregate to become due prior to its stated maturity or prior to its regularly scheduled dates of payment or (3) causes Debt or a portion thereof which, except with respect to the Borrower, is in excess of a principal amount of $1,000,000 in the aggregate to become due prior to its stated maturity or prior to its regularly scheduled dates of payment; provided, the draw on one or more letters of credit -------- in an aggregate amount of $2,000,000 by The Bank of New York, as Trustee for the holders of the Industrial Development Authority of the City of Visalia, Savannah Foods & Industries, Inc. Project Series 1990 bonds as a result of the failure to post a letter of credit with a termination date of September, 2002 shall not constitute a Termination Event by reason of this Section 9.01(b); or --------------- (c) a case or proceeding shall have been commenced against the Borrower, the Parent or any of its Subsidiaries, or any Originator seeking a decree or order in respect of any such Person under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (i) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person's assets, or (ii) ordering the winding-up or liquidation of the affairs of any such Person, and such case or proceeding continues for 60 days unless dismissed, bonded or discharged; provided, however, that such 60-day period -------- ------- shall be deemed terminated immediately if (x) a decree or order is entered by a court of competent jurisdiction with respect to a case or proceeding described in this subsection (c) or (y) any of the events described in Section 9.01(d) -------------- --- --------------- shall have occurred; or (d) the Borrower, the Parent or any of its Subsidiaries, or any Originator shall (i) file a petition seeking relief under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) consent or fail to object in a timely and appropriate manner to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person's assets, (iii) make an assignment for the benefit of creditors, or (iv) take any corporate action in furtherance of any of the foregoing; or (e) (i) any Originator, the Borrower, the Parent or any of its Subsidiaries, or the Servicer generally does not pay its debts as such debts become due or admits in writing its inability to, or is generally unable to, pay its debts as such debts become due or (ii) the fair market value of the liabilities of any Originator, the Borrower, the Parent, or any Subsidiary of the Parent exceeds the fair market value of its assets; or (f) a final judgment or judgments for the payment of money in excess of $2,500,000 in the aggregate (net of insurance proceeds) at any time outstanding shall be rendered against any Originator, the Parent or any Subsidiary of the Parent and either (i) enforcement proceedings shall have been commenced upon any such judgment or (ii) the same shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed or 40 bonded pending appeal, or shall not have been discharged prior to the expiration of any such stay; or (g) a judgment or order for the payment of money shall be rendered against the Borrower; or (h) (i) any information contained in any Borrowing Base Certificate is untrue or incorrect in any material respect, or (ii) any representation or warranty of any Originator or the Borrower herein or in any other Related Document or in any written statement, report, financial statement or certificate (other than a Borrowing Base Certificate) made or delivered by or on behalf of such Originator or the Borrower to any Affected Party hereto or thereto is untrue or incorrect in any material respect as of the date when made or deemed made; or (i) any Governmental Authority (including the IRS or the PBGC) shall file notice of a Lien with regard to any assets of any Originator, the Parent or any of its Subsidiaries and the amount claimed by such Governmental Authority is in excess of $1,000,000 (other than a Lien (i) limited by its terms to assets other than Receivables and (ii) not materially adversely affecting the financial condition of such Originator, the Parent or Subsidiary of the Parent or the ability of the Imperial Distributing, Inc. to perform as Servicer hereunder); or (j) any Governmental Authority (including the IRS or the PBGC) shall file notice of a Lien with regard to any of the assets of the Borrower; or (k) (1) there shall have occurred any event which in the reasonable judgment of the Administrative Agent, materially adversely impairs (i) the ability of any Originator to originate Receivables of a credit quality which are at least of the credit quality of the Receivables as of the date of the initial Advance hereunder, (ii) the financial condition or operations of any Originator, the Borrower or the Parent, or (iii) the collectibility of Receivables, or (2) the Administrative Agent shall have determined (and so notified the Borrower) that any event or condition that has had or could reasonably be expected to have or result in a Material Adverse Effect has occurred; or (l) (i) a default or breach shall occur under any provision of Sections 4.04, 5.01 or 8.14 of the Sale Agreement and the same shall remain - ------------- ---- ---- unremedied for one Business Day or more after the occurrence thereof, (ii) a default or breach shall occur under any other provision of the Sale Agreement and the same shall remain unremedied for two (2) Business Days or more after written notice thereof shall have been given by the Administrative Agent to the Borrower or (iii) the Sale Agreement shall for any reason cease to evidence the transfer to the Borrower of the legal and equitable title to, and ownership of, the Transferred Receivables; or (m) except as otherwise expressly provided herein, any Lockbox Account Agreement or the Sale Agreement shall have been modified, amended or terminated without the prior written consent of the Lenders and the Administrative Agent; or (n) an Event of Servicer Termination shall have occurred; or 41 (o) (i) with respect to the Transferred Receivables, (A) prior to the making of Advances hereunder, the Borrower shall cease to hold valid and properly perfected title to and sole record and beneficial ownership in such Transferred Receivables or (B) after the making of Advances hereunder, the Administrative Agent (on behalf of the Lenders) shall cease to hold a first priority, perfected Lien in the related Transferred Receivables or any of the Borrower Collateral; or (p) a Change of Control shall occur; or (q) the Borrower shall amend its Certificate of Formation or limited liability company agreement without the express prior written consent of the Lenders and the Administrative Agent; or (r) the Borrower shall have received an Election Notice pursuant to Section 2.01(d) of the Sale Agreement; or - --------------- (s) (i) the Default Ratio shall exceed 6.5%; (ii) the Delinquency Ratio shall exceed 4.5%; (iii) the Dilution Ratio shall exceed 7.0%; (iv) the Receivables Collection Turnover shall exceed 30 days; or (v) the Borrower's Net Worth Percentage shall be less than 15%; or (t) a default or breach of any of the financial covenants of the Parent and its Subsidiaries set forth in Article VII of the Credit Agreement as in effect on the Closing Date; such covenants to include: (i) the "Consolidated Net Worth" covenant contained in Section 7.1(c) of the Credit Agreement, and (ii) the "Minimum EBITDA" covenant contained in Section 7.1(d) of the Credit Agreement, each of which is hereby incorporated by reference and all corresponding defined terms, provided that, no modification to such covenants or -------- ---- defined terms used in such financial covenants (or any embedded defined term used or referred to in such definitions) shall be effective to amend such covenants and defined terms for purposes of this Agreement without the prior written consent of the Administrative Agent; to the extent such written consent is not obtained with respect to an amendment, the financial covenants (and any relevant defined terms) contained in the Credit Agreement without giving effect to such amendment shall remain in effect for purposes of this Agreement; or (u) any material provision of any Related Document shall for any reason cease to be valid, binding and enforceable in accordance with its terms (or any Originator or the Borrower shall challenge the enforceability of any Related Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Related Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms); (v) the incurrence of a liability to the PBGC under ERISA by the Parent, any Originator or the Servicer (except for premium payments arising in the ordinary course of business), in excess of $1,000,000; (w) the condition precedent to the initial Advance set forth in Section 3.02(a) hereof shall not have been satisfied on or before September 30, - --------------- 2001; or 42 (x) the "Consolidated Fixed Charge Coverage Ratio" (as defined in the Credit Agreement as in effect as of the Closing Date) as of the end of any fiscal quarter is less than the ratio set forth below opposite such fiscal quarter:
- ---------------------------------------------------------------------------------------------------------- Fiscal Quarter Consolidated Fixed Charge Coverage Ratio - ---------------------------------------------------------------------------------------------------------- September 30, 2001 0.11 to 1.00 - ---------------------------------------------------------------------------------------------------------- December 31, 2001 0.02 to 1.00 - ---------------------------------------------------------------------------------------------------------- March 31, 2002 0.07 to 1.00 - ---------------------------------------------------------------------------------------------------------- June 30, 2002 0.47 to 1.00 - ---------------------------------------------------------------------------------------------------------- September 30, 2002 0.80 to 1.00 - ---------------------------------------------------------------------------------------------------------- Each fiscal quarter thereafter 1.00 to 1.00 - ----------------------------------------------------------------------------------------------------------
then, and in any such event, the Administrative Agent, may, with the consent of the Lenders, and shall, at the request of the Lenders, by notice to the Borrower, declare the Commitment Termination Date to have occurred without demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, that the Commitment Termination Date shall -------- automatically occur (i) upon the occurrence of any of the Termination Events described in Sections 9.01(c), (d), (e) or (r) or (ii) three days after the ---------------- --- --- --- occurrence of the Termination Event described in Section 9.01(a)(i) if the same ------------------ shall not have been remedied by such time, in each case without demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower. Section 9.02. Events of Servicer Termination. If any of the following ------------------------------ events (each, an "Event of Servicer Termination") shall occur (regardless of the ----------------------------- reason therefor): (a) the Servicer shall (i) fail to make any payment or deposit hereunder when due and payable, (ii) fail to deliver when due any of the reports required to be delivered pursuant to Section 5.02 and 7.08 or any other report ------------ ---- related to the Receivables as required by the other Related Documents and the same shall remain unremedied for two (2) Business Days or more after written notice thereof shall have been given by the Lenders or the Administrative Agent to the Servicer or (iii) fail or neglect to perform, keep or observe any other provision of this Agreement or the other Related Documents (other than any provision embodied in or covered by any other clause of this Section 9.02) and ------------ the same shall remain unremedied for five (5) Business Days or more after written notice thereof shall have been given by the Administrative Agent to the Borrower; or (b) fail or neglect to perform, keep or observe any provision of this Agreement or the other Related Documents including, without limitation, the obligation to make any payment or deposit hereunder or thereunder; or (c) any representation or warranty of the Servicer herein or in any other Related Document or in any written statement, report, financial statement or certificate made or delivered by the Servicer to the Lenders or the Administrative Agent hereto or thereto is untrue or incorrect in any material respect as of the date when made or deemed made; or 43 (d) (i) a default or breach shall occur under any other agreement, document or instrument to which the Servicer is a party or by which the Servicer or its property is bound, which agreement, document or instrument relates to or evidences Debt owed by the Servicer to General Electric Capital Corporation or any of its Affiliates, and such default or breach has not been waived; or (ii) a default or breach shall occur under any other agreement, document or instrument to which the Servicer is a party or by which any such Person or its property is bound, and such default or breach has not been waived and (1) involves a Debt which is in an aggregate principal amount in excess of $1,000,000, (2) permits any holder of such Debt or a trustee or agent to cause such Debt or a portion thereof which is in excess of a principal amount of $1,000,000 in the aggregate to become due prior to its stated maturity or prior to its regularly scheduled dates of payment or (3) causes Debt or a portion thereof which is in excess of a principal amount of $1,000,000 in the aggregate to become due prior to its stated maturity or prior to its regularly scheduled dates of payment; or (e) a case or proceeding shall have been commenced against the Servicer or any Affiliate which acts as a Sub-Servicer seeking a decree or order in respect of any such Person (i) under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person's assets, or (iii) ordering the winding-up or liquidation of the affairs of any such Person , and such case or proceeding continues for 60 days unless dismissed, bonded or discharged; provided, however, that such 60-day period -------- ------- shall be deemed terminated immediately of (x) a decree or order is entered by a court of competent jurisdiction with respect to a case or proceeding described in this subsection (e), or (y) any of the events described in Section 9.02(f) -------------- --------------- shall have occurred; or (f) the Servicer or any Affiliate which acts as a Sub-Servicer shall (i) file a petition seeking relief under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) consent or fail to object in a timely and appropriate manner to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Person's assets, (iii) make an assignment for the benefit of creditors, or (iv) take any corporate action in furtherance of any of the foregoing; or (g) (i) the Servicer or any Affiliate which acts as a Sub-Servicer generally does not pay its debts as such debts become due or admits in writing its inability to, or is generally unable to, pay its debts as such debts become due or (ii) the fair market value of the Servicer's liabilities exceeds the fair market value of its assets; or (h) a final judgment or judgments for the payment of money in excess of $2,500,000 in the aggregate (net of insurance proceeds) at any time outstanding shall be rendered against the Servicer or any other Subsidiary of the Parent which acts as a Sub-Servicer and either (i) enforcement proceedings shall have been commenced upon any such judgment or (ii) the same shall not, within 30 days after the entry thereof, have been discharged or execution thereof 44 stayed or bonded pending appeal, or shall not have been discharged prior to the expiration of any such stay; or (i) (i) any information contained in any Borrowing Base Certificate is untrue or incorrect in any material respect or (ii) any representation or warranty of the Servicer herein or in any other Related Document or in any written statement, report, financial statement or certificate (other than a Borrowing Base Certificate) made or delivered by the Servicer to any Affected Party hereto or thereto is untrue or incorrect in any material respect as of the date when made or deemed made and such representation and warranty, if relating to any Transferred Receivable, has not been cured by the repurchase of any such Transferred Receivable pursuant to Section 4.04 of the Sale and Contribution Agreement; or (j) the Administrative Agent shall have determined that any event or condition that materially adversely affects the ability of the Servicer to collect the Transferred Receivables or to otherwise perform hereunder has occurred; or (k) a Termination Event shall have occurred or this Agreement shall have been terminated; or (l) a deterioration has taken place in the quality of servicing of Transferred Receivables or other Receivables serviced by the Servicer that the Administrative Agent, in its sole discretion, determines to be material, and such material deterioration has not been eliminated within 30 days after written notice thereof shall have been given by the Administrative Agent to the Servicer; or (m) the Servicer shall assign or purport to assign any of its obligations hereunder without the prior written consent of the Administrative Agent; or (n) a Change of Control shall occur with respect to the Servicer; then, and in any such event, the Administrative Agent may, with the consent of the Lenders, and shall, at the request of the Lenders, by delivery of a Servicer Termination Notice to the Borrower and the Servicer, terminate the servicing responsibilities of the Servicer hereunder, without demand, protest or further notice of any kind, all of which are hereby waived by the Servicer. Upon the delivery of any such notice, all authority and power of the Servicer under this Agreement and the Sale Agreement shall pass to and be vested in the Successor Servicer acting pursuant to Section 11.02; provided, that notwithstanding ------------- -------- anything to the contrary herein, the Servicer agrees to continue to follow the procedures set forth in Section 7.02 with respect to Collections on the ------------ Transferred Receivables until a Successor Servicer has assumed the responsibilities and obligations of the Servicer in accordance with Section ------- 11.02. - ----- ARTICLE X. REMEDIES Section 10.01. Actions Upon Termination Event. If any Termination ------------------------------ Event shall have occurred and be continuing and the Administrative Agent shall have declared the 45 Commitment Termination Date to have occurred or the Commitment Termination Date shall be deemed to have occurred pursuant to Section 9.01, then the ------------ Administrative Agent may exercise in respect of the Borrower Collateral, in addition to any and all other rights and remedies granted to it hereunder, under any other Related Document or under any other instrument or agreement securing, evidencing or relating to the Borrower Obligations or otherwise available to it, all of the rights and remedies of a secured party upon default under the UCC (such rights and remedies to be cumulative and nonexclusive), and, in addition, may take the following actions: (a) The Administrative Agent may, without notice to the Borrower except as required by law and at any time or from time to time, charge, offset or otherwise apply amounts payable to the Borrower from the Collection Account or any Lockbox Account against all or any part of the Borrower Obligations. (b) The Administrative Agent may, without notice except as specified below, solicit and accept bids for and sell the Borrower Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker's board or any of the Lenders', or Agent's offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Administrative Agent may deem commercially reasonable. The Administrative Agent shall have the right to conduct such sales on the Borrower's premises or elsewhere and shall have the right to use any of the Borrower's premises without charge for such sales at such time or times as the Administrative Agent deems necessary or advisable. The Borrower agrees that, to the extent notice of sale shall be required by law, at least ten Business Days' notice to the Borrower of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Administrative Agent shall not be obligated to make any sale of Borrower Collateral regardless of notice of sale having been given. The Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed for such sale, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Every such sale shall operate to divest all right, title, interest, claim and demand whatsoever of the Borrower in and to the Borrower Collateral so sold, and shall be a perpetual bar, both at law and in equity, against each Originator, the Borrower, any Person claiming the Borrower Collateral sold through any Originator or the Borrower, and their respective successors or assigns. The Administrative Agent shall deposit the net proceeds of any such sale in the Collection Account and such proceeds shall be applied against all or any part of the Borrower Obligations. (c) Upon the completion of any sale under Section 10.01(b), the ---------------- Borrower or the Servicer shall deliver or cause to be delivered to the purchaser or purchasers at such sale on the date thereof, or within a reasonable time thereafter if it shall be impracticable to make immediate delivery, all of the Borrower Collateral sold on such date, but in any event full title and right of possession to such property shall vest in such purchaser or purchasers upon the completion of such sale. Nevertheless, if so requested by the Administrative Agent or by any such purchaser, the Borrower shall confirm any such sale or transfer by executing and delivering to such purchaser all proper instruments of conveyance and transfer and releases as may be designated in any such request. 46 (d) At any sale under Section 10.01(b), any Lender or the ---------------- Administrative Agent may bid for and purchase the property offered for sale and, upon compliance with the terms of sale, may hold, retain and dispose of such property without further accountability therefor. (e) The Administrative Agent may exercise, at the sole cost and expense of the Borrower, any and all rights and remedies of the Borrower under or in connection with the Borrower Assigned Agreements or the other Borrower Collateral, including any and all rights of the Borrower to demand or otherwise require payment of any amount under, or performance of any provisions of, the Borrower Assigned Agreements. Section 10.02. Exercise of Remedies. No failure or delay on the part -------------------- of the Administrative Agent in exercising any right, power or privilege under this Agreement and no course of dealing between any Originator, the Borrower or the Servicer, on the one hand, and the Administrative Agent, on the other hand, shall operate as a waiver of such right, power or privilege, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. The rights and remedies under this Agreement are cumulative, may be exercised singly or concurrently, and are not exclusive of any rights or remedies that the Administrative Agent would otherwise have at law or in equity. No notice to or demand on any party hereto shall entitle such party to any other or further notice or demand in similar or other circumstances, or constitute a waiver of the right of the party providing such notice or making such demand to any other or further action in any circumstances without notice or demand. Section 10.03. Power of Attorney. On the Closing Date, each of the ----------------- Borrower and the Servicer shall execute and deliver a power of attorney substantially in the form attached hereto as Exhibit 10.03 (each, a "Power of ------------- -------- Attorney"). The power of attorney granted pursuant to each Power of Attorney is - -------- a power coupled with an interest and shall be irrevocable until all of the Borrower Obligations are indefeasibly paid or otherwise satisfied in full. The powers conferred on the Administrative Agent under each Power of Attorney are solely to protect the Lender's Liens upon and interests in the Borrower Collateral and shall not impose any duty upon the Administrative Agent to exercise any such powers. The Administrative Agent shall not be accountable for any amount other than amounts that it actually receives as a result of the exercise of such powers and none of the Administrative Agent's officers, directors, employees, agents or representatives shall be responsible to the Borrower or the Servicer for any act or failure to act, except to the extent of damages attributable to their own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. Section 10.04. Continuing Security Interest. This Agreement shall ---------------------------- create a continuing Lien in the Borrower Collateral until the Termination Date. ARTICLE XI. SUCCESSOR SERVICER PROVISIONS 47 Section 11.01. Servicer Not to Resign. The Servicer shall not resign ---------------------- from the obligations and duties hereby imposed on it except upon a determination that (a) the performance of its duties hereunder has become impermissible under applicable law or regulation and (b) there is no reasonable action that the Servicer could take to make the performance of its duties hereunder become permissible under applicable law. Any such determination shall (i) with respect to clause (a) above, be evide nced by an opinion of counsel to such effect and ---------- (ii) with respect to clause (b) above, be evidenced by an Officer's Certificate ---------- to such effect, in each case delivered to the Lender and the Administrative Agent. No such resignation shall become effective until a Successor Servicer shall have assumed the responsibilities and obligations of the Servicer in accordance with Section 11.02. ------------- Section 11.02. Appointment of the Successor Servicer. In connection ------------------------------------- with the termination of the Servicer's responsibilities or the resignation by the Servicer under this Agreement pursuant to Sections 9.02 or 11.01, the ------------- ----- Administrative Agent shall (a) succeed to and assume all of the Servicer's responsibilities, rights, duties and obligations as Servicer (but not in any other capacity, including specifically not the obligations of the Servicer set forth in Section 12.02) under this Agreement (and except that the Administrative ------------- Agent makes no representations and warranties pursuant to Section 4.02) and (b) ------------- may at any time appoint a successor servicer to the Servicer that shall be acceptable to the Administrative Agent and shall succeed to all rights and assume all of the responsibilities, duties and liabilities of the Servicer under this Agreement (the Administrative Agent, in such capacity, or such successor servicer being referred to as the "Successor Servicer"); provided, that the ------------------ -------- Successor Servicer shall have no responsibility for any actions of the Servicer prior to the date of its appointment or assumption of duties as Successor Servicer. In selecting a Successor Servicer, the Administrative Agent may obtain bids from any potential Successor Servicer and may agree to any bid it deems appropriate. The Successor Servicer shall accept its appointment by executing, acknowledging and delivering to the Administrative Agent an instrument in form and substance acceptable to the Administrative Agent. Section 11.03. Duties of the Servicer. The Servicer covenants and ---------------------- agrees that, following the appointment of, or assumption of duties by, a Successor Servicer: (a) The Servicer shall terminate its activities as Servicer hereunder in a manner that facilitates the transfer of servicing duties to the Successor Servicer and is otherwise acceptable to each Lender and the Administrative Agent and, without limiting the generality of the foregoing, shall timely deliver (i) any funds to the Administrative Agent that were required to be remitted to the Administrative Agent for deposit in the Collection Account and (ii) all Servicing Records and other information with respect to the Transferred Receivables to the Successor Servicer at a place selected by the Successor Servicer. The Servicer shall account for all funds and shall execute and deliver such instruments and do such other things as may be required to vest and confirm in the Successor Servicer all rights, powers, duties, responsibilities, obligations and liabilities of the Servicer. (b) The Servicer shall terminate each existing Sub-Servicing Agreement and the Successor Servicer shall not be deemed to have assumed any of the Servicer's interests therein or to have replaced the Servicer as a party thereto. 48 Section 11.04. Effect of Termination or Resignation. Any termination ------------------------------------ of or resignation by the Servicer hereunder shall not affect any claims that the Borrower, the Lenders, or the Administrative Agent may have against the Servicer for events or actions taken or not taken by the Servicer arising prior to any such termination or resignation. ARTICLE XII. INDEMNIFICATION Section 12.01. Indemnities by the Borrower. --------------------------- (a) Without limiting any other rights that the Lenders or the Administrative Agent or any of their respective officers, directors, employees, attorneys, agents or representatives (each, an "Indemnified Person") may have ------------------ hereunder or under applicable law, the Borrower hereby agrees to indemnify and hold harmless each Indemnified Person from and against any and all Indemnified Amounts that may be claimed or asserted against or incurred by any such Indemnified Person in connection with or arising out of the transactions contemplated under this Agreement or under any other Related Document or any actions or failures to act in connection therewith, including any and all reasonable legal costs and reasonable expenses arising out of or incurred in connection with disputes between or among any parties to any of the Related Documents; provided, that the Borrower shall not be liable for any -------- indemnification to an Indemnified Person to the extent that any such Indemnified Amount results from (i) such Indemnified Person's gross negligence or willful misconduct, in each case as finally determined by a court of competent jurisdiction or (ii) such Indemnified Persons' breach of any provision of this Agreement or any other Related Document applicable to it, as finally determined by a court of competent jurisdiction. Without limiting the generality of the foregoing, the Borrower shall pay on demand to each Indemnified Person any and all Indemnified Amounts relating to or resulting from: (i) reliance on any representation or warranty made or deemed made by the Borrower (or any of its officers) under or in connection with this Agreement or any other Related Document or on any other information delivered by the Borrower pursuant hereto or thereto that shall have been incorrect in any material respect when made or deemed made or delivered; (ii) the failure by the Borrower to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith, any applicable law, rule or regulation with respect to any Transferred Receivable or the Contract therefor, or the nonconformity of any Transferred Receivable or the Contract therefor with any such applicable law, rule or regulation; or (iii) (1) the failure to vest and maintain vested in the Borrower or the Lender valid and properly perfected title to and sole record and beneficial ownership of the Receivables that constitute Transferred Receivables, together with all Collections in respect thereof, free and clear of any Adverse Claim and (2) the failure to maintain or 49 transfer to the Administrative Agent, for the benefit of itself and the Lenders a first, priority, perfected Lien in the Borrower Collateral; (iv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy) to the payment of any Transferred Receivable (including a defense based on such Receivable or the Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services giving rise to such Receivable or the furnishing of or failure to furnish such merchandise or services or relating to collection activities with respect to such Receivable (if such collection activities were performed by any of its Affiliates acting as Servicer), except to the extent that such dispute, claim, offset or defense results from any action or inaction on the part of any Indemnified Person; (v) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services that is the subject of any Contract with respect to any Transferred Receivable; (vi) the commingling of Collections with respect to Transferred Receivables by the Borrower at any time with its other funds or the funds of any other Person; (vii) any failure by the Borrower to cause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable hereunder, whether at the time of the Borrower's purchase of such Receivable or any Advance made hereunder or at any subsequent time; or (viii) any failure of a Lockbox Bank to comply with the terms of the applicable Lockbox Account Agreement. (b) Any Indemnified Amounts subject to the indemnification provisions of this Section 12.01 not paid in accordance with Article VI shall be paid by ------------- ---------- the Borrower to the Indemnified Person entitled thereto within five Business Days following demand therefor. Section 12.02. Indemnities by the Servicer. --------------------------- (a) Without limiting any other rights that an Indemnified Person may have hereunder or under applicable law, the Servicer hereby agrees to indemnify and hold harmless each Indemnified Person from and against any and all Indemnified Amounts that may be claimed or asserted against or incurred by any such Indemnified Person in connection with or arising out of any breach by the Servicer of its obligations hereunder or under any other Related Document; provided, that the Servicer shall not be liable for any indemnification to an - -------- Indemnified Person to the extent that any such Indemnified Amount (x) results from (i) such Indemnified Person's gross negligence or willful misconduct, in each case as finally determined by a court of competent jurisdiction or (ii) such Indemnified Person's breach of any provision of this Agreement or any other Related Document applicable to it, as finally determined by a court of 50 competent or (y) constitutes recourse for uncollectible or uncollected Transferred Receivables as a result of the insolvency, bankruptcy or lack of creditworthiness of any Obligor. Without limiting the generality of the foregoing, the Servicer shall pay on demand to each Indemnified Person any and all Indemnified Amounts relating to or resulting from: (i) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers) under or in connection with this Agreement or any other Related Document or on any other information delivered by the Servicer pursuant hereto or thereto that shall have been incorrect in any material respect when made or deemed made or delivered; (ii) the failure by the Servicer to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith, any applicable law, rule or regulation with respect to any Transferred Receivable or the Contract therefor, or the nonconformity of any Transferred Receivable or the Contract therefor with any such applicable law, rule or regulation; (iii) the imposition of any Adverse Claim with respect to any Transferred Receivable or the Borrower Collateral as a result of any action taken by the Servicer; or (iv) the commingling of Collections with respect to Transferred Receivables by the Servicer at any time with its other funds or the funds of any other Person. (b) Any Indemnified Amounts subject to the indemnification provisions of this Section 12.02 not paid in accordance with Article VI shall be paid by ------------- ---------- the Servicer to the Indemnified Person entitled thereto within five Business Days following demand therefor. Section 12.03. Limitation of Damages; Indemnified Persons. NO ------------------------------------------ INDEMNIFIED PERSON OR PARTY TO THIS AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER. ARTICLE XIII. ADMINISTRATIVE AGENT Section 13.01. Authorization and Action. ------------------------ 51 (a) The Administrative Agent may take such action and carry out such functions under this Agreement as are authorized to be performed by it pursuant to the terms of this Agreement, any other Related Document or otherwise contemplated hereby or thereby or are reasonably incidental thereto; provided, -------- that the duties of the Administrative Agent hereunder shall be determined solely by the express provisions of this Agreement, and, other than the duties set forth in Section 13.02, any permissive right of the Administrative Agent ------------- hereunder shall not be construed as a duty. Section 13.02. Reliance. None of the Administrative Agent, any of -------- its Affiliates or any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the other Related Documents, except for damages solely caused by its or their own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. Without limiting the generality of the foregoing, and notwithstanding any term or provision hereof to the contrary, the Borrower, the Servicer, and each Lender hereby acknowledge and agree that the Administrative Agent (a) acts as agent hereunder for the Lenders and has no duties or obligations to, shall incur no liabilities or obligations to, and does not act as an agent in any capacity for, the Borrower (other than, with respect to the Administrative Agent, under the Power of Attorney with respect to remedial actions) or the Originators, (b) may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts, (c) makes no representation or warranty hereunder to any Affected Party and shall not be responsible to any such Person for any statements, representations or warranties made in or in connection with this Agreement or the other Related Documents, (d) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement, or the other Related Documents on the part of the Borrower, the Servicer, any Lender or to inspect the property (including the books and records) of the Borrower, the Servicer, or any Lender, (e) shall not be responsible to the Borrower, the Servicer or any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Related Documents or any other instrument or document furnished pursuant hereto or thereto, (f) shall incur no liability under or in respect of this Agreement or the other Related Documents by acting upon any notice, consent, certificate or other instrument or writing believed by it to be genuine and signed, sent or communicated by the proper party or parties and (g) shall not be bound to make any investigation into the facts or matters stated in any notice or other communication hereunder and may rely on the accuracy of such facts or matters. Section 13.03. GE Capital and Affiliates. GE Capital and its ------------------------- Affiliates may generally engage in any kind of business with any Obligor, the Originators, the Borrower, the Servicer, any Lender, any of their respective Affiliates and any Person who may do business with or own securities of such Persons or any of their respective Affiliates, all as if GE Capital were not the Administrative Agent and without the duty to account therefor to any Obligor, any Originator, the Borrower, the Servicer, any Lender or any other Person. Section 13.04. Lender Credit Decision. Each Lender acknowledges ---------------------- that it has, independently and without reliance upon the Administrative Agent or any other Lender and such 52 other documents and information as it has deemed appropriate, made its own credit and financial analysis of Borrower and its own decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement. Section 13.05. Indemnification. Lenders agree to indemnify the --------------- Administrative Agent (to the extent not reimbursed by Borrower and without limiting the obligations of Borrower hereunder), ratably according to their respective Pro Rata Shares, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any other Related Document or any action taken or omitted by the Administrative Agent in connection therewith; provided, however, that no Lender shall be liable for any portion of such - -------- ------- liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the Administrative Agent's gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. Without limiting the foregoing, each Lender agrees to reimburse the Administrative Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement and each other Related Document, to the extent that the Administrative Agent is not reimbursed for such expenses by Borrower. Section 13.06. Successor Administrative Agent. The Administrative ------------------------------ Agent may resign at any time by giving not less than thirty (30) days' prior written notice thereof to Lenders and Borrower. Upon any such resignation, the Requisite Lenders shall have the right to appoint a successor the Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Requisite Lenders and shall have accepted such appointment within 30 days after the resigning the Administrative Agent's giving notice of resignation, then the resigning the Administrative Agent may, on behalf of Lenders, appoint a successor Administrative Agent, which shall be a Lender, if a Lender is willing to accept such appointment, or otherwise shall be a commercial bank or financial institution or a subsidiary of a commercial bank or financial institution which commercial bank or financial institution is organized under the laws of the United States of America or of any State thereof which has a long-term debt rating from S&P of A - or better and has a combined capital and surplus of at least $300,000,000. If no successor the Administrative Agent has been appointed pursuant to the foregoing, by the 30th day after the date such notice of resignation was given by the resigning Administrative Agent, such resignation shall become effective and the Requisite Lenders shall thereafter perform all the duties of the Administrative Agent hereunder until such time, if any, as the Requisite Lenders appoint a successor the Administrative Agent as provided above. Any successor Administrative Agent appointed by Requisite Lenders hereunder shall be subject to the approval of Borrower, such approval not to be unreasonably withheld or delayed; provided that such approval shall not be -------- required if an Incipient Termination Event or an Termination Event shall have occurred and 53 be continuing. Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the resigning Administrative Agent. Upon the earlier of the acceptance of any appointment as the Administrative Agent hereunder by a successor Administrative Agent or the effective date of the resigning Administrative Agent's resignation, the resigning Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Related Documents, except that any indemnity rights or other rights in favor of such resigning Agent shall continue. After any resigning Agent's resignation hereunder, the provisions of this Section 14 shall inure to its ---------- benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement and the other Related Documents. The Administrative Agent may be removed at the written direction of the Requisite Lenders; provided that in so doing, the Lenders shall be deemed to have waived and released any and all claims they may have against the Administrative Agent. Section 13.07. Setoff and Sharing of Payments. In addition to any ------------------------------ rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence and during the continuance of any Termination Event, each Lender and each holder of any Revolving Note is hereby authorized at any time or from time to time, without notice to Borrower or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all balances held by it at any of its offices for the account of Borrower (regardless of whether such balances are then due to Borrower) and any other properties or assets any time held or owing by that Lender or that holder to or for the credit or for the account of Borrower against and on account of any of the Obligations which are not paid when due. Any Lender or holder of any Revolving Note exercising a right to set off or otherwise receiving any payment on account of the Borrower Obligations in excess of its Pro Rata Share thereof shall purchase for cash (and the other Lenders or holders shall sell) such participations in each such other Lender's or holder's Pro Rata Share of the Borrower Obligations as would be necessary to cause such Lender to share the amount so set off or otherwise received with each other Lender or holder in accordance with their respective Pro Rata Shares. Borrower agrees, to the fullest extent permitted by law, that (a) any Lender or holder may exercise its right to set off with respect to amounts in excess of its Pro Rata Share of the Borrower Obligations and may sell participations in such amount so set off to other Lenders and holders and (b) any Lender or holders so purchasing a participation in the Advances made or other Borrower Obligations held by other Lenders or holders may exercise all rights of set-off, bankers' lien, counterclaim or similar rights with respect to such participation as fully as if such Lender or holder were a direct holder of the Advances and the other Borrower Obligations in the amount of such participation. Notwithstanding the foregoing, if all or any portion of the set-off amount or payment otherwise received is thereafter recovered from the Lender that has exercised the right of set-off, the purchase of participations by that Lender shall be rescinded and the purchase price restored without interest. ARTICLE XIV. MISCELLANEOUS 54 Section 14.01. Notices. Except as otherwise provided herein, ------- whenever it is provided herein that any notice, demand, request, consent, approval, declaration or other communication shall or may be given to or served upon any of the parties by any other parties, or whenever any of the parties desires to give or serve upon any other parties any communication with respect to this Agreement, each such notice, demand, request, consent, approval, declaration or other communication shall be in writing and shall be deemed to have been validly served, given or delivered (a) upon the earlier of actual receipt and three Business Days after deposit in the United States Mail, registered or certified mail, return receipt requested, with proper postage prepaid, (b) upon transmission, when sent by facsimile (with such facsimile promptly confirmed by delivery of a copy by personal delivery or United States Mail as otherwise provided in this Section 14.01), (c) one Business Day after ------------- deposit with a reputable overnight courier with all charges prepaid or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address or facsimile number set forth under its name on the signature page hereof or to such other address (or facsimile number) as may be substituted by notice given as herein provided. The giving of any notice required hereunder may be waived in writing by the party entitled to receive such notice. Failure or delay in delivering copies of any notice, demand, request, consent, approval, declaration or other communication to any Person (other than any Lender and the Administrative Agent) designated in any written notice provided hereunder to receive copies shall in no way adversely affect the effectiveness of such notice, demand, request, consent, approval, declaration or other communication. Notwithstanding the foregoing, whenever it is provided herein that a notice is to be given to any other party hereto by a specific time, such notice shall only be effective if actually received by such party prior to such time, and if such notice is received after such time or on a day other than a Business Day, such notice shall only be effective on the immediately succeeding Business Day. Section 14.02. Binding Effect; Assignability. ----------------------------- (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Servicer, each Lender and the Administrative Agent and their respective successors and permitted assigns. Neither the Borrower nor the Servicer may assign, transfer, hypothecate or otherwise convey any of their respective rights or obligations hereunder or interests herein without the express prior written consent of each Lender and the Administrative Agent. Any such purported assignment, transfer, hypothecation or other conveyance by the Borrower or the Servicer without the prior express written consent of the Requisite Lenders and the Administrative Agent shall be void. (b) Borrower hereby consents to any Lender's assignment of, and/or sale of participations in, at any time or times after the Effective Date, the Related Documents, Advances, and any Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Any assignment by a Lender shall (i) require the consent of the Administrative Agent and the execution of an assignment agreement (an "Assignment Agreement") -------------------- substantially in the form attached hereto as Exhibit 14.02(b) and otherwise in ---------------- form and substance satisfactory to, and acknowledged by, the Administrative Agent; (ii) if a partial assignment, in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; 55 and (iv) include a payment to the Administrative Agent by the assignor or assignee Lender of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 14.02, the assignee shall have, to the extent of ------------- such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Advances hereunder shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the applicable Commitment. In the event any Lender assigns or otherwise transfers all or any part of a Revolving Note, such Lender shall so notify Borrower and Borrower shall, upon the request of such Lender, execute new Revolving Notes in exchange for the Revolving Notes being assigned. Notwithstanding the foregoing provisions of this Section 14.02(b), any Lender ---------------- may at any time pledge or assign all or any portion of such Lender's rights under this Agreement and the other Related Documents to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender - -------- ------- from such Lender's obligations hereunder or under any other Related Document. (c) Any participation by a Lender of all or any part of its Commitments shall be in an amount at least equal to $5,000,000, and with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Advance in which such holder participates, (ii) any extension of any scheduled payment of the principal amount of any Advance in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Borrower Collateral (other than in accordance with the terms of this Agreement or the other Related Documents). Solely for purposes of Sections 2.08, 2.09, 2.10, 12.01, Borrower acknowledges and agrees that a - ------------- ---- ---- ----- participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender" for purposes of such sections (except that, unless Borrower otherwise consents, no amounts shall be payable to such participant under Section 2.09 or 2.10 to the ------------ ---- extent that such amounts would have been required to have been paid under the circumstances in existence on the effective date of such participation). Except as set forth in the preceding sentence Borrower shall have no obligation or duty to any participant. Neither the Administrative Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred. (d) Except as expressly provided in this Section 14.02, no Lender ------------- shall, as between Borrower and that Lender, or between Agent and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Advances, the Revolving Notes or other Obligations owed to such Lender. 56 (e) Borrower shall assist any Lender permitted to sell assignments or participations under this Section 14.02 as reasonably required to enable the ------------- assigning or selling Lender to effect any such assignment or participation, including the execution and delivery of any and all agreements, notes and other documents and instruments as shall be requested and the participation of management in meetings with, potential assignees or participants. Borrower shall, if Agent so requests in connection with an initial syndication of the Advances hereunder, assist in the preparation of informational materials for such syndication. (f) A Lender may furnish any information concerning Borrower in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants). Each Lender shall obtain from all prospective and actual assignees or participants confidentiality covenants substantially equivalent to those contained in Section 14.05. ------------- (g) Any Lender with the consent of the Administrative Agent or the Administrative Agent may, at any time, assign any of its rights and obligations hereunder or interests herein to any Person and any such assignee may further assign at any time its rights and obligations hereunder or interests herein (including any rights it may have in and to the Advances and the Borrower Collateral and any rights it may have to exercise remedies hereunder), in each case without the consent of any Originator, the Borrower or the Servicer. The Borrower acknowledges and agrees that, upon any such assignment, the assignee thereof may enforce directly, without joinder of any Lender, all of the obligations of the Borrower hereunder. Section 14.03. Termination; Survival of Borrower Obligations Upon -------------------------------------------------- Commitment Termination Date. - --------------------------- (a) This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until the Termination Date. (b) Except as otherwise expressly provided herein or in any other Related Document, no termination or cancellation (regardless of cause or procedure) of any commitment made by any Affected Party under this Agreement shall in any way affect or impair the obligations, duties and liabilities of the Borrower or the rights of any Affected Party relating to any unpaid portion of the Borrower Obligations, due or not due, liquidated, contingent or unliquidated or any transaction or event occurring prior to such termination, or any transaction or event, the performance of which is required after the Commitment Termination Date. Except as otherwise expressly provided herein or in any other Related Document, all undertakings, agreements, covenants, warranties and representations of or binding upon the Borrower or the Servicer, and all rights of any Affected Party hereunder, all as contained in the Related Documents, shall not terminate or expire, but rather shall survive any such termination or cancellation and shall continue in full force and effect until the Termination Date; provided, that the rights and remedies provided for herein with respect to -------- any breach of any representation or warranty made by the Borrower or the Servicer pursuant to Article IV, the indemnification and ---------- 57 payment provisions of Article XII and Sections 14.04, 14.05 and 14.06 shall be ----------- -------------- ----- ----- continuing and shall survive the Termination Date. Section 14.04. Costs, Expenses and Taxes. (a) The Borrower shall ------------------------- reimburse each Lender and the Administrative Agent for all reasonable out-of- pocket expenses incurred in connection with the negotiation and preparation of this Agreement and the other Related Documents (including the reasonable fees and expenses of all of its special counsel, advisors, consultants and auditors retained in connection with the transactions contemplated thereby and advice in connection therewith). The Borrower shall reimburse each Lender and the Administrative Agent for all fees, costs and expenses, including the fees, costs and expenses of counsel or other advisors (including environmental and management consultants and appraisers) for advice, assistance, or other representation in connection with: (i) the forwarding to the Borrower or any other Person on behalf of the Borrower by any Lender of any proceeds of Advances made by such Lender hereunder; (ii) any amendment, modification or waiver of, consent with respect to, or termination of this Agreement or any of the other Related Documents or advice in connection with the administration thereof or their respective rights hereunder or thereunder; (iii) any Litigation, contest or dispute (whether instituted by the Borrower, any Lender, the Administrative Agent or any other Person as a party, witness, or otherwise) in any way relating to the Borrower Collateral, any of the Related Documents or any other agreement to be executed or delivered in connection herewith or therewith, including any Litigation, contest, dispute, suit, case, proceeding or action, and any appeal or review thereof, in connection with a case commenced by or against the Borrower or any other Person that may be obligated to any Lender or the Administrative Agent by virtue of the Related Documents, including any such Litigation, contest, dispute, suit, proceeding or action arising in connection with any work-out or restructuring of the transactions contemplated hereby during the pendency of one or more Termination Events; (iv) any attempt to enforce any remedies of a Lender or the Administrative Agent against the Borrower or any other Person that may be obligated to them by virtue of any of the Related Documents, including any such attempt to enforce any such remedies in the course of any work-out or restructuring of the transactions contemplated hereby during the pendency of one or more Termination Events; (v) any work-out or restructuring of the transactions contemplated hereby during the pendency of one or more Termination Events; and (vi) efforts to (A) monitor the Advances or any of the Borrower Obligations, (B) evaluate, observe or assess the Originators, the Borrower or the Servicer or their respective affairs, and (C) verify, protect, evaluate, assess, appraise, collect, sell, liquidate or otherwise dispose of any of the Borrower Collateral; 58 including all attorneys' and other professional and service providers' fees arising from such services, including those in connection with any appellate proceedings, and all expenses, costs, charges and other fees incurred by such counsel and others in connection with or relating to any of the events or actions described in this Section 14.04, all of which shall be payable, on ------------- demand, by the Borrower to the applicable Lender or the Administrative Agent, as applicable. Without limiting the generality of the foregoing, such expenses, costs, charges and fees may include: fees, costs and expenses of accountants, environmental advisors, appraisers, investment bankers, management and other consultants and paralegals; court costs and expenses; photocopying and duplication expenses; court reporter fees, costs and expenses; long distance telephone charges; air express charges; telegram or facsimile charges; secretarial overtime charges; and expenses for travel, lodging and food paid or incurred in connection with the performance of such legal or other advisory services. (b) In addition, the Borrower shall pay on demand any and all stamp, sales, excise and other taxes (excluding income taxes) and fees payable or determined to be payable in connection with the execution, delivery, filing or recording of this Agreement or any other Related Document, and the Borrower agrees to indemnify and save each Indemnified Person harmless from and against any and all liabilities with respect to or resulting from any delay or failure to pay such taxes and fees. Section 14.05. Confidentiality. --------------- (a) Except to the extent otherwise required by applicable law, in connection with the Imperial Bankruptcy Proceeding or as required to be filed publicly with the Securities and Exchange Commission, or unless the Administrative Agent shall otherwise consent in writing, the Borrower and the Servicer each agrees to maintain the confidentiality of this Agreement (and all drafts hereof and documents ancillary hereto) in its communications with third parties other than any Affected Party or any Indemnified Person and otherwise and not to disclose, deliver or otherwise make available to any third party (other than its directors, officers, employees, accountants or counsel) the original or any copy of all or any part of this Agreement (or any draft hereof and documents ancillary hereto) except to an Affected Party or an Indemnified Person. (b) The Borrower and the Servicer each agrees that it shall not (and shall not permit any of its Subsidiaries to) issue any news release or make any public announcement pertaining to the transactions contemplated by this Agreement and the other Related Documents without the prior written consent of the Requisite Lenders and the Administrative Agent (which consent shall not be unreasonably withheld) unless such news release or public announcement is required by law or related to the Imperial Bankruptcy Proceeding, in which case the Borrower or the Servicer, as applicable, shall consult with the Requisite Lenders and the Administrative Agent prior to the issuance of such news release or public announcement. The Borrower may, however, disclose the general terms of the transactions contemplated by this Agreement and the other Related Documents to trade creditors, suppliers and other similarly-situated Persons so long as such disclosure is not in the form of a news release or public announcement. 59 (c) The Administrative Agent and each Lender agrees to maintain the confidentiality of the Information (as defined below), and will not use such confidential Information for any purpose or in any matter except in connection with this Agreement, except that Information may be disclosed (a) to (i) each Affected Party and (ii) its and each Affected Party's and their respective Affiliates' directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential and to not disclose or use such Information in violation of Regulation FD (17 C.F.R. (S) 243.100-243.103)), (b) any regulatory authority (it being understood that it will to the extent reasonably practicable provide the Borrower with an opportunity to request confidential treatment from such regulatory authority), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) to the extent required in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Related Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to any assignee of (or participant in), or any prospective assignee of (or participant in), any of its rights or obligations under this Agreement, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or any other confidentiality agreement to which it is party with the Borrower or the Parent or any subsidiary thereof or (ii) becomes available to the Administrative Agent, or any Lender on a nonconfidential basis from a source other than the Parent or any subsidiary thereof. For the purposes of this Section, "Information" means all information received from the Borrower and Servicer relating to the Borrower, the Servicer, the Parent or any subsidiary thereof or their businesses, or any Obligor, other than any such information that is available to Administrative Agent, or any Lender on a nonconfidential basis prior to disclosure by Borrower or Servicer; provided that, in the case of information (other than any information related to an Obligor or financial projections) received from Borrower or Servicer after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have compiled with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. Section 14.06. Complete Agreement; Modification of Agreement. This --------------------------------------------- Agreement and the other Related Documents constitute the complete agreement among the parties hereto with respect to the subject matter hereof and thereof, supersede all prior agreements and understandings relating to the subject matter hereof and thereof, and may not be modified, altered or amended except as set forth in Section 14.07. ------------- Section 14.07. Amendments and Waivers. ---------------------- (a) Except for actions expressly permitted to be taken by the Administrative Agent, no amendment, modification, termination or waiver of any provision of this Agreement or any of the Revolving Notes, or any consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by Borrower, and by the 60 Requisite Lenders or all affected Lenders, as applicable and, to the extent required under clause (c) below, by the Administrative Agent. Except as set --- forth in clause (b) below, all such amendments, modifications, terminations or ---------- waivers requiring the consent of any Lenders without specifying the required percentage of Lenders shall require the written consent of the Requisite Lenders. (b) No amendment, modification, termination or waiver shall, unless in writing and signed by each Lender directly affected thereby, do any of the following: (i) increase the principal amount of any Lender's Commitment; (ii) reduce the principal of, rate of interest on or Fees payable with respect to any Advance of any affected Lender; (iii) extend any scheduled payment date or final maturity date of the principal amount of any Advance of any affected Lender; (iv) waive, forgive, defer, extend or postpone any payment of interest or Fees as to any affected Lender; (v) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Advances which shall be required for Lenders or any of them to take any action hereunder; (vi) release all or substantially all of the Borrower Collateral or (vii) amend or waive this Section 14.07 or the definitions of the terms "Requisite Lenders" insofar as - ------------- such definitions affect the substance of this Section 14.07 Furthermore, no ------------- amendment, modification, termination or waiver affecting the rights or duties of the Administrative Agent under this Agreement or any other Related Document shall be effective unless in writing and signed by the Administrative Agent, in addition to Lenders required hereinabove to take such action. Each amendment, modification, termination or waiver shall be effective only in the specific instance and for the specific purpose for which it was given. No amendment, modification, termination or waiver shall be required for the Administrative Agent to take additional Borrower Collateral pursuant to any Related Document. No amendment, modification, termination or waiver of any provision of any Revolving Note shall be effective without the written concurrence of the holder of that Revolving Note. No notice to or demand on Borrower in any case shall entitle Borrower to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 14.07 shall be binding upon each holder ------------- of the Revolving Notes at the time outstanding and each future holder of the Revolving Notes. (c) If, in connection with any proposed amendment, modification, waiver or termination (a "Proposed Change"): --------------- (i) requiring the consent of all affected Lenders, the consent of Requisite Lenders is obtained, but the consent of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described this clause (i) and in clause (ii) below being ---------- ----------- referred to as a "Non-Consenting Lender"), or --------------------- (ii) requiring the consent of Requisite Lenders, the consent of Lenders holding 51% or more of the aggregate Commitments is obtained, but the consent of Requisite Lenders is not obtained, then, so long as the Administrative Agent is not a Non-Consenting Lender, at the Borrower's request the Administrative Agent, or a Person acceptable to the Administrative Agent, shall have the right with the Administrative Agent's consent and in the Administrative Agent's sole 61 discretion (but shall have no obligation) to purchase from such Non-Consenting Lenders, and such Non-Consenting Lenders agree that they shall, upon the Administrative Agent's request, sell and assign to the Administrative Agent or such Person, all of the Commitments of such Non-Consenting Lender for an amount equal to the principal balance of all Advances held by the Non-Consenting Lender and all accrued interest and Fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. (d) Upon indefeasible payment in full in cash and performance of all of the Borrower Obligations (other than indemnification Borrower Obligations under Section 12.01), termination of the Commitments and a release of all claims ------------- against the Administrative Agent and Lenders, and so long as no suits, actions proceedings, or claims are pending or threatened against any Indemnified Person asserting any damages, losses or liabilities that are Indemnified Liabilities, the Administrative Agent shall deliver to Borrower termination statements, mortgage releases and other documents necessary or appropriate to evidence the termination of the Liens securing payment of the Borrower Obligations. Section 14.08. No Waiver; Remedies. The failure by any Lender or ------------------- the Administrative Agent, at any time or times, to require strict performance by the Borrower or the Servicer of any provision of this Agreement or any Receivables Assignment shall not waive, affect or diminish any right of any Lender or the Administrative Agent thereafter to demand strict compliance and performance herewith or therewith. Any suspension or waiver of any breach or default hereunder shall not suspend, waive or affect any other breach or default whether the same is prior or subsequent thereto and whether the same or of a different type. None of the undertakings, agreements, warranties, covenants and representations of the Borrower or the Servicer contained in this Agreement or any Receivables Assignment, and no breach or default by the Borrower or the Servicer hereunder or thereunder, shall be deemed to have been suspended or waived by any Lender or the Administrative Agent unless such waiver or suspension is by an instrument in writing signed by an officer of or other duly authorized signatory of the Lenders and the Administrative Agent and directed to the Borrower or the Servicer, as applicable, specifying such suspension or waiver. The rights and remedies of the Lenders and the Administrative Agent under this Agreement shall be cumulative and nonexclusive of any other rights and remedies that the Lenders and the Administrative Agent may have under any other agreement, including the other Related Documents, by operation of law or otherwise. Recourse to the Borrower Collateral shall not be required. Section 14.09. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF ------------------------------------------------- JURY TRIAL. - ---------- (a) THIS AGREEMENT AND EACH OTHER RELATED DOCUMENT (EXCEPT TO THE EXTENT THAT ANY RELATED DOCUMENT EXPRESSLY PROVIDES TO THE CONTRARY) AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF 62 LAW PRINCIPLES) EXCEPT TO THE EXTENT THAT THE PERFECTION, EFFECT OF PERFECTION OR PRIORITY OF THE INTERESTS OF THE ADMINISTRATIVE AGENT IN THE RECEIVABLES OR REMEDIES HEREUNDER OR THEREUNDER, IN RESPECT THEREOF, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. (b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT; PROVIDED, THAT EACH PARTY HERETO -------- ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED FURTHER, -------- ------- THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE ANY LENDER OR THE ADMINISTRATIVE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE BORROWER COLLATERAL OR ANY OTHER SECURITY FOR THE BORROWER OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDERS, OR THE ADMINISTRATIVE AGENT. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL ----- --- ---------- OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT THE ADDRESS SET FORTH BENEATH ITS NAME ON THE SIGNATURE PAGES HEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. (c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR 63 DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. Section 14.10. Counterparts. This Agreement may be executed in any ------------ number of separate counterparts, each of which shall collectively and separately constitute one agreement. Section 14.11. Severability. Wherever possible, each provision of ------------ this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. Section 14.12. Section Titles. The section, titles and table of -------------- contents contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto. Section 14.13. Limited Recourse. The obligations of each Lender ---------------- under this Agreement and all Related Documents are solely the corporate obligations of such Lender. No recourse shall be had for the payment of any amount owing in respect of Advances or for the payment of any fee hereunder or any other obligation or claim arising out of or based upon this Agreement or any other Related Document against any Stockholder, employee, officer, director, agent or incorporator of such Lender. Any accrued obligations owing by any Lender under this Agreement shall be payable by such Lender solely to the extent that funds are available therefor from time to time in accordance with the provisions of Article VI of this Agreement. ---------- Section 14.14. Further Assurances. ------------------ (a) Each of the Borrower and the Servicer shall, at its sole cost and expense, upon request of the Lenders or the Administrative Agent, promptly and duly execute and deliver any and all further instruments and documents and take such further action that may be necessary or desirable or that the Lenders or the Administrative Agent may request to (i) perfect, protect, preserve, continue and maintain fully the Liens granted to the Administrative Agent for the benefit of itself and the Lenders under this Agreement, (ii) enable the Lenders or the Administrative Agent to exercise and enforce its rights under this Agreement or any of the other Related Documents or (iii) otherwise carry out more effectively the provisions and purposes of this Agreement or any other Related Document. Without limiting the generality of the foregoing, the Borrower shall, upon request of the Lenders or the Administrative Agent, (A) execute and file such financing or continuation statements, or amendments thereto or 64 assignments thereof, and such other instruments or notices that may be necessary or desirable or that the Lenders or the Administrative Agent may request to perfect, protect and preserve the Liens granted pursuant to this Agreement, free and clear of all Adverse Claims, (B) mark, or cause the Servicer to mark, each Contract (other than invoices) evidencing each Transferred Receivable with a legend, acceptable to each Lender and the Administrative Agent evidencing that the Borrower has purchased such Transferred Receivables and that the Administrative Agent, for the benefit of the Lenders, has a security interest in and lien thereon, (C) mark, or cause the Servicer to mark, its master data processing records evidencing such Transferred Receivables with such a legend and (D) notify or cause the Servicer to notify Obligors of the Liens on the Transferred Receivables granted hereunder. (b) Without limiting the generality of the foregoing, the Borrower hereby authorizes the Lenders and the Administrative Agent, and each of the Lenders hereby authorizes the Administrative Agent, to file one or more financing or continuation statements, or amendments thereto or assignments thereof, relating to all or any part of the Transferred Receivables, including Collections with respect thereto, or the Borrower Collateral without the signature of the Borrower or, as applicable, the Lenders, as applicable, to the extent permitted by applicable law. A carbon, photographic or other reproduction of this Agreement or of any notice or financing statement covering the Transferred Receivables, the Borrower Collateral or any part thereof shall be sufficient as a notice or financing statement where permitted by law. 65 IN WITNESS WHEREOF, the parties have caused this Receivables Funding Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written. IMPERIAL SUGAR SECURITIZATION, LLC, as the Borrower By /s/ W. F. Schwer ------------------------------------------ Name W. F. Schwer ------------------------------------------ Title PRESIDENT ------------------------------------------ Address: ------- 35 South Main Sugar Land, TX 77478 Attention: Karen Mercer Telephone: (281) 491-3703 Facsimile: (281) 490-9895 IMPERIAL DISTRIBUTING, INC., as the Servicer By /s/ W. F. Schwer ------------------------------------------ Name W. F. Schwer ------------------------------------------ Title PRESIDENT ------------------------------------------ Address: ------- c/o Imperial Sugar Company 8016 Highway 90A Sugar Land, Texas 77478 Attention: William F. Schwer Telephone: (281) 490-9795 Facsimile: (281) 490-9881 66 GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender By /s/ Craig Winslow ------------------------------------- Name Craig Winslow ----------------------------------- Duly Authorized Signatory Address: ------- 201 High Ridge Road Stamford, Connecticut 06927 Attention: Senior Vice President - Portfolio/Underwriting Telephone: (203) 357-4065 Facsimile: (203) 316-7821 67 GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent By /s/ Craig Winslow ------------------------------------------- Name Craig Winslow ----------------------------------------- Duly Authorized Signatory Address: ------- 201 High Ridge Road Stamford, Connecticut 06927 Attention: Senior Vice President - Portfolio/Underwriting Telephone: (203) 357-4065 Facsimile: (203) 316-7821 68 EX-4.6 10 dex46.txt WARRANT AGREEMENT EXHIBIT 4.6 Execution Copy IMPERIAL SUGAR COMPANY AND THE BANK OF NEW YORK, Warrant Agent ----------------------- WARRANT AGREEMENT Dated as of August 28, 2001 TABLE OF CONTENTS
PAGE SECTION 1. APPOINTMENT OF WARRANT AGENT......................................................................... 1 SECTION 2. WARRANT CERTIFICATES................................................................................. 1 SECTION 3. EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES............................................... 2 SECTION 4. WARRANTS AND ISSUANCE OF WARRANT CERTIFICATES........................................................ 2 SECTION 6. DURATION AND EXERCISE OF WARRANTS; REDEMPTION OF WARRANTS; EXERCISE PRICE; RIGHT OF WARRANT HOLDERS............................................................................ 4 SECTION 7. OPTIONAL REDUCTION OF EXERCISE PRICE................................................................. 5 SECTION 8. PAYMENT OF TAXES..................................................................................... 6 SECTION 9. MUTILATED OR MISSING WARRANT CERTIFICATES............................................................ 6 SECTION 10. RESERVATION OF SHARES............................................................................... 6 SECTION 11. OBTAINING OF GOVERNMENTAL APPROVALS AND STOCK EXCHANGE LISTINGS..................................... 7 SECTION 12. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES PURCHASABLE............................... 7 SECTION 13. FRACTIONAL SHARES................................................................................... 10 SECTION 14. NOTICES TO WARRANT HOLDERS.......................................................................... 11 SECTION 15. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT............................................ 12 SECTION 16. WARRANT AGENT....................................................................................... 12 SECTION 17. CHANGE OF WARRANT AGENT............................................................................. 14 SECTION 18. ISSUANCE OF NEW WARRANT CERTIFICATES................................................................ 15 SECTION 19. NOTICES TO COMPANY AND WARRANT AGENT................................................................ 15 SECTION 20. IDENTITY OF TRANSFER AGENT.......................................................................... 16 SECTION 21. SUPPLEMENTS AND AMENDMENTS.......................................................................... 16 SECTION 22. SUCCESSORS.......................................................................................... 16 SECTION 23. TERMINATION......................................................................................... 16 SECTION 24. GOVERNING LAW....................................................................................... 16 SECTION 25. BENEFITS OF THIS AGREEMENT.......................................................................... 17 SECTION 26. COUNTERPARTS........................................................................................ 17
EXHIBIT A. Form of Warrant Certificate WARRANT AGREEMENT This WARRANT AGREEMENT (this "Agreement") is made and dated as of August 28, 2001, between Imperial Sugar Company, a Texas corporation (the "Company") and The Bank of New York, a New York Trust Company (the "Warrant Agent"). WHEREAS, the Company proposes to effect a plan of reorganization pursuant to chapter 11 of the Bankruptcy Code (the "Plan") whereby, among other things, each issued and outstanding share of Common Stock, without par value, of the Company (the "Old Common Shares"), is to be cancelled and replaced with (i) .00617048405 of a share of newly issued Common Stock, without par value, of the Company (the "Common Shares") and (ii) .03428046355 of a warrant (the "Warrants"), each Warrant entitling the holder thereof to purchase one Common Share of the Company, subject to the terms and conditions contained therein and in this Agreement (the Common Shares issuable upon exercise of the Warrants in accordance with this Agreement being referred to herein as the "Warrant Shares"); WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to act, in connection with the issuance of certificates evidencing the Warrants (the "Warrant Certificates") and other matters as provided herein; NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the parties hereto agree as follows: SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth in this Agreement, and the Warrant Agent hereby accepts such appointment. So long as any of the Warrant Certificates are outstanding, there may be an authenticating agent appointed by the Warrant Agent which shall be authorized to act on behalf of the Warrant Agent to countersign Warrant Certificates issued upon exchange and register of transfer thereof, and Warrant Certificates so countersigned shall be entitled to the benefits of this Warrant Agreement and shall be valid for all purposes as if countersigned by the Warrant Agent hereunder. Whenever reference is made in this Warrant Agreement to the countersignature of the Warrant Agent, such reference shall be deemed to include countersignature on behalf of the Warrant Agent by such agent. The agent appointed hereunder shall be entitled to the same rights, privileges and indemnities as the Warrant Agent under Section 16 and shall satisfy such requirements as are applicable to a successor to the Warrant Agent under Section 17. The Warrant Agent shall be the authenticating agent. SECTION 2. WARRANT CERTIFICATES. The Warrants shall be evidenced by Warrant Certificates. The text of each Warrant Certificate (and the Forms of Exercise and Assignment to be set forth on the reverse thereof) shall be substantially in the form set forth in Exhibit A attached hereto and may have such --------- identification, designation and information thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any applicable law or with any rule or regulation under such law or with any rule or regulation of the National Association of Securities Dealers, Inc. or any stock exchange on which the Warrants may be listed, or to conform to usage. 1 SECTION 3. EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES. The Warrant Certificates shall be executed on behalf of the Company by its Chairman of the Board, President or one of its Managing Directors, under its corporate seal reproduced thereon attested by its Secretary or one of its Assistant Secretaries. The signature of any such officer on any Warrant Certificate may be manual or facsimile. Warrant Certificates bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company notwithstanding that such individuals, or any of them, ceased to be such officers prior to the countersignature and delivery of such Warrant Certificate or were not such officers at the date of this Agreement. Each Warrant Certificate shall be countersigned by the manual signature of an authorized officer of the Warrant Agent and shall not be valid for any purpose unless so countersigned. The Warrant Agent is hereby authorized to countersign Warrant Certificates for issuance pursuant to any provision of this Agreement. Each Warrant Certificate shall be dated the date of its countersignature by the Warrant Agent. SECTION 4. WARRANTS AND ISSUANCE OF WARRANT CERTIFICATES. Following the execution of this Agreement, from time to time Warrant Certificates representing up to 1,111,111 Warrants (which amount may be increased to the extent necessary to accommodate the rounding up of Warrants under the Plan) shall be countersigned, issued and delivered by the Warrant Agent upon written order of the Company signed by its Chairman of the Board, its President, one of its Managing Directors, its Treasurer, its Secretary or one of its Assistant Secretaries. From time to time, the Warrant Agent shall countersign and deliver Warrant Certificates in required denominations to the Persons (as defined below) entitled thereto in connection with any transfer or exchange permitted under this Agreement. Except as provided in Section 9 hereof, no Warrant Certificates shall be issued except (i) Warrant Certificates initially issued hereunder for the number of Warrant Shares equal to the number of Warrants represented thereby, (ii) Warrant Certificates issued upon the partial exercise of any Warrant to evidence the portion of such Warrant not exercised and (iii) Warrant Certificates issued upon any transfer or exchange of Warrants. The Warrants will be separately transferable upon issuance. SECTION 5. REGISTRATION; TRANSFERS AND EXCHANGES. The Company shall maintain at a principal office of the Warrant Agent (currently located at 101 Barclay Street (22W), New York, New York 10286) a register for the registration of the Warrant Certificates and of their transfer from time to time (the "Warrant Register"). The Company and the Warrant Agent may deem and treat the registered holder of each Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone), for the purpose of any exercise thereof, any distribution 2 to the holder thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Each Warrant Certificate shall be transferable, in whole or in part, on the Warrant Register, upon surrender of the Warrant Certificate to the Company at the principal office of the Warrant Agent designated above, or at another office or agency to be maintained by the Company, together with a written assignment of the Warrant Certificate on the Form of Assignment set forth on the reverse thereof or in other form satisfactory to the Warrant Agent, duly executed by the registered holder thereof or its duly appointed legal representative, and together with funds to pay any transfer taxes payable in connection with such transfer. Upon such surrender and payment, a new Warrant Certificate, in the name of the assignee and in the denomination or denominations specified in such instrument of assignment, shall be issued and delivered. If less than all of the Warrant Certificate is being transferred, a new Warrant Certificate or Certificates shall be issued for the portion of the Warrant Certificate not being transferred. The Warrant Certificate surrendered shall be cancelled by the Warrant Agent. A Warrant Certificate may be divided or combined with other Warrant Certificates upon surrender thereof to the Company at the principal office of the Warrant Agent as set forth above, or at another office or agency to be maintained by the Company, together with (i) a written notice specifying the names and denominations in which new Warrant Certificates are to be issued, signed by the registered holder thereof or his duly appointed legal representative, and (ii) the funds to pay any transfer taxes payable in connection with such transfer. Upon such surrender and payment, a new Warrant Certificate or Certificates shall be issued and delivered in accordance with such notice. The Warrant Certificate surrendered shall be cancelled by the Warrant Agent. The Company may require payment of a sum sufficient to cover such reasonable charges (including, without limitation, any tax or other governmental charge that may be imposed and the fees and expenses of the Warrant Agent) as the Company or the Warrant Agent may prescribe in connection with any exchange or registration of transfer of Warrant Certificates. Warrant Certificates cancelled by the Warrant Agent pursuant to any provision of this Agreement shall be returned to the Company. The Warrant Agent shall keep copies of this Agreement and any amendments hereto and notices given or received hereunder available for inspection by the Warrant holders during normal business hours at its principal office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may reasonably request. The Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the numbers of Warrants delivered to it in accordance with the terms and conditions of this Agreement and the Warrant Certificates, (ii) the instructions of each Warrant holder of the Warrant Certificates evidencing such Warrants with respect to delivery of the Warrant Shares or other cash or property to which such Warrant holder is entitled upon such delivery, (iii) the delivery of Warrant Certificates evidencing the balance, if any, of the Warrants 3 remaining after such delivery, and (iv) such other information as the Company shall reasonably request. SECTION 6. DURATION AND EXERCISE OF WARRANTS; EXERCISE PRICE; RIGHT OF WARRANT HOLDERS. (a) The Warrants may be exercised on any business day after the Effective Date of the Company's Second Amended Joint Plan of Reorganization (the "Effective Date") and terminating at 5:00 p.m., Central time seven years after the Effective Date of the Plan (as defined therein), or if such day is a day on which banking institutions in the State of New York are authorized by law to close, then on the next succeeding day which shall not be such a day (such date of expiration being hereinafter referred to as the "Expiration Date"). The Expiration Date may be extended by the Company in its sole discretion from time to time by a notice given to the Warrant Agent and mailed to the registered holders of the Warrant Certificates as provided in Section 14. After 5:00 p.m., Central time on the Expiration Date, unexercised Warrants will become wholly void and of no value. (b) Subject to the provisions of this Agreement, the holder of each Warrant shall have the right to purchase from the Company (and the Company shall issue and sell to such holder on the terms and subject to the conditions hereof) one fully paid and nonassessable Warrant Share at the exercise price in effect hereunder at such time (the "Exercise Price"), upon surrender to the Company at the principal office of the Warrant Agent of the Warrant Certificate evidencing such Warrant, with the Form of Exercise on the reverse thereof duly filled in and signed, and upon payment of the Exercise Price and any applicable taxes pursuant to Section 8 in lawful money of the United States of America by certified or official bank check payable to the order of the Company. The Exercise Price shall equal the aggregate Allowed Amount of Class 5A and Class 5B Claims held by holders receiving New Common Stock under the Plan divided by 9,800,000; provided, however, that if at six (6) months after the Effective Date all Class 5A and Class 5B Claims receiving New Common Stock have not been finally Allowed, then the per share exercise price shall equal the total of the aggregate Allowed Amounts and aggregate Disputed Claim amounts of Class 5A and Class 5B Claims held by holders receiving New Common Stock under the Plan, divided by 9,800,000. The Exercise Price and the number of Warrant Shares purchasable upon exercise of a Warrant shall be subject to adjustment as provided in Section 12. Subject to Section 8, as soon as practicable after such surrender of a Warrant Certificate and payment of the Exercise Price in effect hereunder at such time, the Warrant Agent shall cause to be issued and shall deliver to the registered holder of such Warrant Certificate in such name or names as such registered holder may designate, a certificate for the Warrant Share or Warrant Shares issuable upon the exercise of the Warrant or Warrants evidenced by such Warrant Certificate. Such certificate shall be deemed to have been issued and any Person so designated to be named therein shall be deemed to have become the holder of record of such Warrant Share or Warrant Shares as of the date of the surrender of such Warrant Certificate and payment of the Exercise Price and any applicable taxes as provided in this Agreement. If, on the date of surrender of such Warrant Certificate and payment of such Exercise Price, the transfer books for the Warrant Shares shall be closed, certificates for the Warrant Shares shall be issuable on the date on which such books shall next be open (whether before, on, or after the Expiration 4 Date) and until such date the Company shall be under no duty to deliver any certificate for such Warrant Shares. The Warrants evidenced by a Warrant Certificate shall be exercisable, at the election of the registered holder thereof, either as an entirety or, from time to time, in part. If less than all of the Warrants evidenced by a Warrant Certificate surrendered upon the exercise of Warrants are exercised, a new Warrant Certificate or Certificates shall be issued to the registered holder for the remaining number of Warrants evidenced by the Warrant Certificate so surrendered. All Warrant Certificates surrendered upon exercise of Warrants shall be cancelled by the Warrant Agent. Notwithstanding any provision herein to the contrary, the Warrant Agent shall not be required to register shares in the name of any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or other entity or a government or other agency or political subdivision thereof (each, a "Person") who acquired a Warrant Certificate (or part thereof) or any Warrant or Warrant Shares otherwise than in accordance with such Warrant and this Agreement. The Warrant Agent shall deposit to the account of the Company all monies received by the Warrant Agent in payment of the Exercise Price of any Warrant. The Warrant Agent shall account promptly to the Company with respect to the exercise of Warrants. (c) No Warrant holder or its transferee, as such, shall be entitled to vote or to receive dividends or shall otherwise be deemed to be the holder of Common Shares for any purpose, nor shall anything contained herein or in any Warrant Certificate be construed to confer upon any Warrant holder, as such, any of the rights of a stockholder of the Company or any right to vote upon or give or withhold consent to any action of the Company (whether upon any reorganization, issuance of securities, reclassification or conversion of Common Shares, consolidation, merger, sale, lease, conveyance, or otherwise), receive notice of meetings or other action affecting stockholders (except for notices expressly provided for in this Agreement) or receive dividends or subscription rights, until (i) such Warrant Certificate and any other required documentation shall have been surrendered for exercise accompanied by full and proper payment of the Exercise Price, each as provided in this Agreement, and (ii) such Person shall have been deemed to have become a holder of record of such Warrant Shares pursuant to this Section 6. No holder of Warrants shall, upon the exercise of Warrants, be entitled to any dividends if the record date with respect to payment of such dividends shall be a date prior to the date such Warrant Shares are issued upon exercise of such Warrants. SECTION 7. OPTIONAL REDUCTION OF EXERCISE PRICE. The Company, in its sole discretion, without any obligation to do so, shall have the right, at any time, and from time to time, by action of a majority of the whole Board of Directors of the Company, to reduce the then-current Exercise Price to such amount (the "Reduced Exercise Price") and for such period or periods of time, which may be through the close of business on the Expiration Date (the "Reduced Exercise Price Period"), as may be deemed appropriate by the Board of Directors of the Company. Notice of any such Reduced Exercise Price and Reduced Exercise Price Period shall be given to the registered holders of Warrants in the manner provided in Section 14 and to 5 the Warrant Agent in the manner provided in Section 19. After the termination of the Reduced Exercise Price Period, the Exercise Price shall be such Exercise Price which would have been in effect, as adjusted pursuant to Section 12, had there been no reduction in the Exercise Price pursuant to the provisions of this Section 7. Any adjustment in the Exercise Price pursuant to Section 12 during the Reduced Exercise Price Period shall also be made in the Reduced Exercise Price in the manner specified in Section 12. SECTION 8. PAYMENT OF TAXES. The Company shall pay all documentary stamp taxes, if any, attributable to the initial issuance of the Warrant Certificates or the issuance of the Warrant Shares exercisable therefor; provided, however, that the Company shall not be required to pay any tax or taxes which may be payable in respect of any transfer of the Warrants after their initial issuance or with respect to the issuance of Warrant Shares in a name other than that of the registered holder of the Warrant Certificate upon exercise thereof, and the Company shall not be required to issue or deliver such certificates unless or until the Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. SECTION 9. MUTILATED OR MISSING WARRANT CERTIFICATES. If any of the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company may in its discretion issue, and the Warrant Agent may countersign, in exchange and substitution for and upon cancellation of the mutilated Warrant Certificate, and in lieu of and in substitution for the Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor and representing an equivalent number of Warrants, but only upon receipt of evidence satisfactory to the Company and the Warrant Agent of such loss, theft or destruction of such Warrant Certificate and indemnity or bond, if requested, also satisfactory to them. Applicants for such substitute Warrant Certificates shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company or the Warrant Agent may prescribe. SECTION 10. RESERVATION OF SHARES. The Company will at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued Common Shares or its authorized and issued Common Shares held in its treasury, such number of Common Shares enabling it to satisfy any obligation to issue the maximum number of Warrant Shares deliverable upon the exercise of all outstanding Warrants. Before taking any action which would cause an adjustment pursuant to Section 12 reducing the Exercise Price below the then par value (if any) of the Warrant Shares, the Company will take any corporate action which may, in the opinion of its counsel (which may be counsel employed by the Company), be necessary in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares at the Exercise Price as so adjusted. The Company covenants that all Warrant Shares which may be issued upon the exercise of Warrants will, upon issuance and payment therefor, be duly authorized, fully paid nonassessable and validly issued and, subject to Section 8, free from all taxes, liens, charges and security interests with respect to the issue thereof. 6 The Warrant Agent is authorized to make requisition from time to time from a transfer agent for the Common Shares (including the Company if then acting as a transfer agent) stock certificates required to honor exercises of outstanding Warrants. The Company hereby authorizes its present and any future such transfer agent to comply with all such requests. The Company will supply such transfer agent with duly executed stock certificates for such purpose and will itself provide or otherwise make available any cash which may be payable as provided in Section 13 of this Agreement. SECTION 11. OBTAINING STOCK EXCHANGE LISTINGS. The Company will use its commercially reasonable efforts to have each of the (i) Warrants and (ii) Warrant Shares quoted on any securities exchanges on which the then outstanding Common Shares are listed. SECTION 12. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES PURCHASABLE. The Exercise Price and the number of Warrant Shares purchasable upon the exercise of each Warrant are subject to adjustment from time to time as provided in this Section 12. (a) If, prior to the Expiration Date, the Company shall, at any time after the date of this Agreement, issue any Common Shares as a stock dividend to the holders of Common Shares, subdivide, combine or reclassify the outstanding Common Shares into a greater or lesser number of Common Shares (any such issuance, subdivision, combination or reclassification being herein called a "Change of Shares"), then, and thereafter upon any future Change of Shares, the Exercise Price in effect immediately prior to such Change of Shares shall be changed to a price (including any applicable fraction of a cent) determined by multiplying (x) the Exercise Price in effect immediately prior to the Change of Shares by (y) a fraction, the numerator of which shall be the number of Common Shares outstanding immediately prior to the Change of Shares, and the denominator of which shall be the sum of the number of Common Shares outstanding immediately following the Change of Shares. Such adjustment shall be made successively whenever such an issuance is made. (b) If, prior to the Expiration Date, the Company shall, at any time after the date of this Agreement, issue rights, options or warrants to all holders of Common Shares entitling them (for a period expiring within 60 calendar days after the date of such issuance) to subscribe for or purchase Common Shares (or securities exchangeable for or convertible into Common Shares) at a price per Common Share (or having an exchange value or a conversion price per Common Share, if a security exchangeable for or convertible into Common Shares) less than the current market price per Common Share (as defined in Section 12(i)) on the record date set for such issuance, the Exercise Price to be in effect after such record date shall be determined by multiplying (x) the Exercise Price in effect immediately prior to such record date by (y) a fraction, the numerator of which shall be the number of Common Shares outstanding on such record date plus the number of Common Shares which the aggregate offering price of the total number of Common Shares so to be offered (or the aggregate initial exchange value or conversion price of the exchangeable or convertible securities so to be offered) would purchase at the current market price and the denominator of which shall be the number of Common Shares outstanding on the record date plus the number of additional Common Shares to be offered for subscription or purchase (or for which or into which the exchangeable or convertible securities 7 so to be offered are initially exchangeable or convertible); provided, however, that no adjustment shall be made if the Company grants the Warrant holder the right to receive, upon the exercise of the Warrants at any time after the issuance described in this paragraph (b), such rights, options or warrants that the Warrant holder would have been entitled to receive had the Warrants been exercised prior to the record date (but exercisable when issued to the holder). If such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of that consideration shall be as determined by the Board of Directors of the Company. The foregoing adjustment shall be made successively immediately following each such record date. If such rights, options or warrants are not so issued, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such record date had not been fixed, but such subsequent adjustment shall not affect the number of shares issued upon any exercise of Warrants prior to the date such subsequent adjustment is made. On the termination of any right to convert or exchange securities convertible into Common Shares, the Exercise Price shall be immediately readjusted to such amount as would have obtained had the adjustment made upon the granting or issuance of such rights, options or warrants been made upon the basis of the issuance or sale of only the number of Common Shares actually issued pursuant to such rights, options or warrants, but such subsequent adjustment shall not affect the number of shares issued upon any exercise of Warrants prior to the date such subsequent adjustment is made. (c) If, prior to the Expiration Date, the Company shall, at any time after the date of this Agreement, make a distribution to all holders of Common Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing Person) of evidences of indebtedness, options, warrants, securities, cash or assets (other than a transaction to which paragraph (a) or (b) above applies), the Exercise Price to be in effect after the record date set for such distribution shall be determined by multiplying (x) the Exercise Price in effect immediately prior to such record date by (y) a fraction, the numerator of which shall be the then-current market price per Common Share on such record date less the fair market value (as determined in good faith by the Board of Directors of the Company) of the portion of the evidences of indebtedness, securities, cash or assets so distributed attributable to one Common Share, and the denominator of which shall be the then-current market price per Common Share on such record date; provided, however, that no adjustment shall be made if the Company grants the Warrant holder the right to receive, upon the exercise of the Warrants at any time after the distribution described in this paragraph (c), such evidences of indebtedness, options, warrants, securities, cash or assets that the Warrant holder would have been entitled to receive had the Warrants been exercised prior to the record date. The foregoing adjustment shall be made successively immediately following each such record date. (d) Upon each adjustment of the Exercise Price pursuant to this Section 12, the total number of Common Shares purchasable upon the exercise of each Warrant shall (subject to the provisions contained in paragraph (e) hereof) be such number of shares (calculated to the nearest hundredth) purchasable at the Exercise Price in effect immediately prior to such adjustment multiplied by a fraction, the numerator of which shall be the Exercise Price in effect immediately prior to such adjustment and the denominator of which shall be the Exercise Price in effect immediately after such adjustment. Common Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of that computations under this Section 12. 8 (e) The Company may elect, upon any adjustment of the Exercise Price hereunder, to adjust the number of Warrants outstanding in lieu of the adjustment in the number of Warrant Shares purchasable upon the exercise of each Warrant as provided herein (the "Warrant Adjustment"). Following a Warrant Adjustment, each Warrant outstanding after such adjustment shall continue to represent the right to purchase one Common Share. Each Warrant held of record prior to such adjustment shall become that number of Warrants (calculated to the nearest hundredth) determined by multiplying the number one by a fraction, the numerator of which shall be the Exercise Price in effect immediately prior to such adjustment and the denominator of which shall be the Exercise Price in effect immediately following the Warrant Adjustment. Upon each Warrant Adjustment, the Company shall, as promptly as practicable, cause to be distributed to each registered holder of Warrant Certificates on the date of such Warrant Adjustment Warrant Certificates evidencing, subject to Section 13 hereof, the number of additional Warrants to which such holder shall be entitled as a result of such adjustment or, at the option of the Company, cause to be distributed to such holder in substitution and replacement for the Warrant Certificates held by such holder prior to the date of the Warrant Adjustment (and upon surrender thereof, if required by the Company) new Warrant Certificates evidencing the number of Warrants to which such holder shall be entitled after such adjustment. (f) In any case in which this Section 12 shall require that any adjustment in the Exercise Price be made effective as of immediately after a record date for a specified event, the Company may elect to defer until the occurrence of the event the issuing to the holder of any Warrant exercised after that record date the Common Shares and other capital stock of the Company, if any, issuable upon the exercise over and above the Common Shares and other capital stock of the Exercise Price in effect prior to such adjustment; provided, however, that the Company shall deliver to the holder a due bill or other appropriate instrument evidencing the holder's right to receive such additional shares upon the occurrence of the event requiring such adjustment. (g) In case of (i) any reclassification, capital reorganization or other change of outstanding Common Shares (other than a transaction to which paragraph (a), (b) or (c) above applies), (ii) any consolidation, merger or other business combination of the Company with or into another Person (other than a consolidation or merger in which the Company is the continuing Person and which does not result in any reclassification, capital reorganization or other change of outstanding Common Shares), or (iii) any sale or conveyance to another Person of the property of the Company as, or substantially as, an entirety (other than a sale/leaseback, mortgage or other financing transaction) (each, a "Change of Control Transaction"), the Company shall cause effective provision to be made so that each holder of a Warrant then outstanding shall have the right thereafter, by exercising such Warrant, to purchase the kind and number of shares of stock or other securities or property (including cash) such Warrant holder would have received upon such Change of Control Transaction if such Warrant holder had exercised its Warrant(s) immediately prior to the effective date of such Change of Control Transaction. If, after an adjustment pursuant to this Section 12, a holder of a Warrant may receive shares of two or more classes of capital stock of the Company upon exercise of such Warrant, the Board of Directors of the Company shall determine the allocation of the adjusted Exercise Price between the classes of capital stock. After such allocation, the exercise privilege 9 and Exercise Price of each such class of capital stock shall thereafter be subject to adjustment on terms comparable to those applicable to the Common Shares in this Agreement. Prior to or simultaneously with the consummation of any Change of Control Transaction, the successor Person (if other than the Company) shall enter into a supplemental Warrant Agreement including provision for adjustments that shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 12. (h) For the purposes of adjustments required by paragraph (d) above, the Common Shares (or securities exchangeable for or convertible into Common Shares) which the holder of any rights, options, or warrants shall be entitled to subscribe for or purchase shall be deemed to be issued and outstanding as of the date of sale, issuance or distribution of such securities and the consideration, if any, received by the Company therefor shall be deemed to be the consideration received by the Company for such securities, plus the consideration or premiums stated in such securities to be paid for the Common Shares (or securities exchangeable for or convertible into Common Shares) covered thereby. (i) For the purpose of any computation under paragraphs (b) or (c) above, the current market price per Common Share on any date shall be deemed to be the average of the daily closing prices per Common Share for 15 consecutive trading days commencing 20 trading days before such date. The closing price for each day shall be the last reported sale price regular way or, if no such sale takes place on such day, the average of the closing bid and asked prices regular way of a Common Share as reported (i) by the principal national securities exchange on which the Common Shares are then listed or admitted to trading, or (ii) if not then listed or admitted to trading, in the over-the-counter market as reported by Nasdaq National Market or any comparable system, or (iii) if not then listed, as furnished by two members of the NASD selected from time to time in good faith by the Board of Directors of the Company for that purpose. (j) No adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this Section 12(j) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 12 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. (k) For the purpose of this Section 12, the term "Common Shares" or "Shares of Common Stock" shall mean (i) the class of stock designated as the Common Shares of the Company at the date of this Agreement, or (ii) any other class of stock resulting from successive changes or reclassification of such shares consisting solely of changes in par value, or from par value to no par value, or from no par value to par value. SECTION 13. FRACTIONAL SHARES. The Company shall not be required to issue fractions of Warrant Shares upon exercise of the Warrants or to distribute Share Certificates which evidence fractional Warrant Shares. If a holder of Warrants exercises more than one Warrant at the same time, the Warrant Shares issuable shall be based on the total number of Warrants to be exercised at such time. In lieu of fractional Warrant Shares, there shall be paid to 10 the registered holders of Warrant Certificates at the time such Warrants are exercised an amount in cash equal to the same fraction of the current market price of the Warrant Shares as determined pursuant to Section 12(i). SECTION 14. NOTICES TO WARRANT HOLDERS. (a) Except in the case of an adjustment pursuant to Section 7, whenever the number of Warrant Shares purchasable upon the exercise of each Warrant or the Exercise Price is adjusted as provided herein, the Company, within 20 days thereafter, shall (i) cause to be filed with the Warrant Agent a certificate of the Company signed by its Chairman of the Board, its President or one of its Vice Presidents setting forth the number of Warrant Shares purchasable upon the exercise of each Warrant and the Exercise Price for such Warrant Shares after adjustment and setting forth in reasonable detail the method of calculation and the facts upon which the calculations are based, which certificate shall be conclusive evidence of the correctness of the matters set forth therein, and (ii) cause notice of such adjustment to be mailed by first-class mail, postage prepaid, to each registered holder of a Warrant Certificate at the address appearing on the Warrant Register. Where appropriate, such notice may be mailed in advance and included as a part of any notice required to be mailed under any other provision of this Section 14. (b) Upon the fixing of a date for redemption, as provided in Section 6, the establishing of the Exercise Date, as provided in Section 6, or the fixing of a Reduced Exercise Price and Reduced Exercise Price Period, as provided in Section 7, the Company shall cause notice of such redemption or Reduced Exercise Price and Reduced Exercise Price Period, as the case may be, to be mailed by first-class mail, postage prepaid, to each registered holder of a Warrant Certificate at the address appearing on the Warrant Register. (c) If at any time prior to the expiration of the Warrants: (i) the Company shall authorize the issuance to all holders of Common Shares of rights, options or warrants to subscribe for or purchase Common Shares or of any other subscription rights or warrants; or (ii) the Company shall authorize the distribution to all holders of Common Shares of evidences of indebtedness, securities, cash or assets; or (iii) the Board of Directors of the Company shall have approved of any consolidation or merger to which the Company is a party and for which approval by holders of Common Shares is required, or of the conveyance or transfer of the properties and assets of the Company substantially as an entirety, or of any reclassification or change of Common Shares (other than a change in par value, if any, or as a result of a subdivision or combination); or (iv) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; or 11 (v) the Company proposes to take any other action which would require an adjustment of the Exercise Price pursuant to Section 12; then the Company shall cause to be filed with the Warrant Agent and shall cause notice of the proposed action and the record date for the determination of holders of Common Shares entitled to vote on such matter to be mailed to each of the registered holders of the Warrant Certificates at his address appearing on the Warrant Register, at least 15 days (or 10 days in any case specified in clauses (i) or (ii) above) prior to such record date, or promptly with respect to those events for which there is no record date, by first-class mail, postage prepaid, which notice shall state (i) the date as of which the holders of record of Common Shares to be entitled to receive any such rights, warrants or distribution are to be determined, or (ii) the date on which any such consolidation, merger, conveyance, transfer, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of record of Common Shares shall be entitled to exchange their Common Shares for securities or other property, if any, deliverable upon such reclassification, consolidation, merger, conveyance, transfer, dissolution, liquidation or winding up. The failure to give any notice required by this Section 14(c) or any defect therein shall not affect the legality or validity of the transaction to which it relates. SECTION 15. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT. Any Person into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any Person succeeding to the corporate trust business of the Warrant Agent, shall be the successor to the Warrant Agent hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such Person would be eligible for appointment as a successor Warrant Agent under the provisions of Section 17. If at the time such successor to the Warrant Agent shall succeed to the agency created by this Agreement and at that time any of the Warrant Certificates shall have been countersigned but not delivered, any such successor to the Warrant Agent may adopt the countersignature of the original Warrant Agent; and if at that time any of the Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrant Certificates either in the name of the predecessor Warrant Agent or in the name of the successor Warrant Agent; and in all such cases such Warrant Certificates shall have the full force and effect provided in the Warrant Certificates and in this Agreement. If at any time the name of the Warrant Agent shall be changed and at such time the Warrant Certificates shall have been countersigned but not delivered, the Warrant Agent may adopt the countersignature under its prior name, and if at that time any of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant Certificates either in its prior name or in its changed name, and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. SECTION 16. WARRANT AGENT. The Warrant Agent undertakes the duties and obligations imposed by this Agreement, upon the following terms and conditions, all of which the Company and the holders of Warrants, by their acceptance thereof, shall be bound: 12 (a) The statements contained herein and in the Warrant Certificates shall be taken as statements of the Company, and the Warrant Agent assumes no responsibility for the correctness of any of the same except such as describe the Warrant Agent or action taken or to be taken by it. (b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the covenants contained in this Agreement or in the Warrant Certificates to be complied with by the Company. (c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company) and shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate in respect of any action taken, suffered or omitted by any of them hereunder in good faith and in accordance with the opinion or the advice of such counsel. (d) Whenever in the performance of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by the Chairman, President or a Vice President of the Company and delivered to the Warrant Agent; and such certificate shall be full authorization to the Warrant Agent for any action taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such certificate. (e) Any notice, statement, instruction, request, direction, order or demand of the Company shall be sufficiently evidenced by an instrument signed by the Chairman of the Board of Directors, President or any Vice President (unless other evidence in respect thereof is herein specifically prescribed). The Warrant Agent shall not be liable for any action taken, suffered or omitted by it in accordance with such notice, statement, instruction, request, direction, order or demand. (f) The Company agrees to pay to the Warrant Agent reasonable compensation for all services rendered by the Warrant Agent in the execution and performance of this Agreement, to reimburse the Warrant Agent for expenses, taxes and other charges reasonably incurred by the Warrant Agent in the execution and performance of this Agreement and to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities arising out of anything done or omitted by the Warrant Agent in the execution and performance of this Agreement except as a result of its gross negligence, willful misconduct or bad faith. The provisions of this Section 16(f) shall survive the expiration of the Warrants and the termination of this Agreement. (g) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred, but this provision shall not affect the power of the Warrant Agent to take such action as it may consider proper, whether with or without any such security or indemnity. 13 (h) Except as otherwise required by law, the Warrant Agent, and any stockholder, director, officer or employee of the Warrant Agent, may buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though they were not the Warrant Agent under this Agreement, or a stockholder, director, officer or employee of the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company, or for any other legal entity. (i) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provision hereof. The Warrant Agent shall be liable hereunder only for its own gross negligence or willful misconduct or actions or omissions taken in bad faith; provided, however, that the Warrant Agent shall not be liable for any indirect, special, punitive or consequential damages. (j) The Warrant Agent shall at no time be under any duty or responsibility to any holder of any Warrant Certificate to make or cause to be made any adjustment of the Exercise Price, the number of the Warrant Shares or other securities or property deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments or with respect to the nature or extent of any such adjustment, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any Warrant Shares or of any securities or property which may at a time be issued or delivered upon the exercise of any Warrant or at the expiration of the period during which the Warrants are exercisable for any unexercised Warrant or with respect to whether any such Warrant Shares or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto. (k) The Warrant Agent may assume that any Warrant exercised is permitted to be exercised under applicable law and shall have no liability for acting in reliance upon such assumption. Warrant Agent shall not be responsible for failure by the Company's transfer agent to supply Common Shares. (l) The Warrant Agent shall not incur any liability hereunder if by reason of any act of God or war or other circumstances beyond its control, it, or its employees, officers or directors shall be prevented, delayed or forbidden from or be subject to any civil or criminal penalty on account of, doing or performing any act or thing which by the terms of this Agreement it is provided shall be done or performed or by reason of any nonperformance or delay, caused by any such act of God or war or other circumstances beyond its control. SECTION 17. CHANGE OF WARRANT AGENT. The Warrant Agent may resign and be discharged from its duties under this Agreement after giving 30 days prior written notice to the Company. The Warrant Agent may be removed by the Company by like notice to the Warrant Agent. If the office of Warrant Agent becomes vacant by resignation, removal, incapacity to act, or otherwise, the Company shall appoint a successor to the Warrant Agent 14 (which may be the Company). If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such incapacity or resignation by the Warrant Agent or by the registered holder of a Warrant Certificate, then the registered holder of any Warrant Certificate may apply to any court of competent jurisdiction for the appointment of a successor to the Warrant Agent. Pending appointment of a successor to the Warrant Agent, either by the Company or by such a court, the duties of the Warrant Agent shall be carried out by the Company. Any successor Warrant Agent whether appointed by the Company or by such a court shall be a bank or trust company, in good standing, incorporated under the laws of the United States of America or of a state of the United States of America, and must have at the time of its appointment as Warrant Agent a combined capital and surplus of at least $500,000. After appointment, the successor Warrant Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Warrant Agent without further act or deed; but the former Warrant Agent shall deliver and transfer to the successor Warrant Agent any property at the time held by it hereunder and execute and deliver any further assurance, conveyance, act or deed necessary for the purpose. The Company shall cause notice of the appointment of any successor Warrant Agent to be mailed by first-class mail, postage prepaid, to each registered holder of a Warrant Certificate at his address appearing on the Warrant Register. Failure to give any notice provided for in this Section 17, or any defect therein, shall not, however, affect the legality or validity of the appointment of a successor Warrant Agent. SECTION 18. ISSUANCE OF NEW WARRANT CERTIFICATES. Notwithstanding any of the provisions of this Agreement or of the Warrants to the contrary, the Company may, at its option, issue new Warrant Certificates evidencing Warrants in such form as may be approved by its Board of Directors to reflect any adjustment or change in the Exercise Price and the number or kind or class of shares of stock or other securities or property purchasable under the Warrant Certificates made in accordance with the provisions of this Agreement. SECTION 19. NOTICES TO COMPANY AND WARRANT AGENT. Any notice pursuant to this Agreement to be given by the Warrant Agent or by the registered holder of any Warrant Certificate to the Company shall be sufficiently given if sent by first-class mail, postage prepaid, addressed to the Company as follows: Imperial Sugar Company One Imperial Square 8016 Highway 90-A Sugar Land, Texas 77478 Attention: General Counsel (or to such other address as the Company may have furnished in writing to the Warrant Agent for this purpose). Any notice pursuant to this Agreement to be given by the Company or by any registered holder of any Warrant Certificate to the Warrant Agent shall be sufficiently given if sent by first-class mail, postage prepaid, addressed to the Warrant Agent as follows: 15 The Bank of New York 101 Barclay Street (22W) New York, New York 10286 Attention: Steven Myers Assistant Vice-President (or to such other address as the Warrant Agent may have furnished in writing to the Company for this purpose). SECTION 20. IDENTITY OF TRANSFER AGENT. Forthwith upon the appointment of any subsequent transfer agent for Common Shares, or any other shares of the Company's capital stock issuable upon the exercise of the Warrants, the Company will file with the Warrant Agent a statement setting forth the name and address of such subsequent transfer agent. SECTION 21. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any holders of Warrant Certificates in order to cure any ambiguity, to correct or supplement any provision contained herein which may be defective or inconsistent with any provisions herein, to make any necessary changes as required by Sections 6, 7 or 12, or to make any other provisions in regard to matters or questions arising hereunder which the Company may deem necessary or desirable and which shall not adversely affect the interests of the holders of the Warrant Certificates. The Warrants may otherwise be amended only if the Company has obtained the consent of the holders of Warrants representing a majority of Warrant Shares issuable upon exercise of all outstanding Warrants. Until an amendment becomes effective, such consent of any holder of a Warrant Certificate shall bind all subsequent holders thereof. Once such amendment becomes effective, it shall bind all holders of Warrant Certificates. SECTION 22. SUCCESSORS. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. SECTION 23. TERMINATION. This Agreement shall terminate at 5:00 p.m., Central time on the Expiration Date. Notwithstanding the foregoing, this Agreement will terminate on any earlier date when all Warrants have been exercised or redeemed. The provisions of Section 16 shall survive such termination. SECTION 24. GOVERNING LAW. This Agreement and each Warrant Certificate issued hereunder shall be deemed to be a contract made under the laws of the State of Texas and for all purposes shall be construed in accordance with the laws of said State without regard to conflicts of law provisions, provided, however, that the rights and obligations of the Warrant Agent shall be governed by and construed in accordance with the laws of the State of New York. The parties hereto hereby waive the right to a jury trial in any action arising out of this Agreement. Any dispute arising out of this Agreement shall be litigated in the borough of Manhattan, New York City, New York, and the parties hereby submit to the jurisdiction of such courts and acknowledge that such courts are a convenient forum. 16 SECTION 25. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be construed to give to any Person other than the Company, the Warrant Agent and the registered holders of the Warrant Certificates any legal or equitable right, remedy or claim under this Agreement; and this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and the registered holders of the Warrant Certificates. SECTION 26. COUNTERPARTS. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. 17 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the day and year first above written. IMPERIAL SUGAR COMPANY By: /s/ William F. Schwer ----------------------------------- Name: William F. Schwer Title: Executive Vice-President THE BANK OF NEW YORK, as Warrant Agent By: /s/ Steve Myers ----------------------------------- Name: Steve Myers --------------------------------- Title: Assistant Vice President -------------------------------- EX-99.1 11 dex991.txt PRESS RELEASE Exhibit 99.1 [LOGO OF IMPERIAL SUGAR COMPANY] [LOGO] FOR IMMEDIATE RELEASE Contact: William F. Schwer Executive Vice President and General Counsel (281) 490-9795 Investor Relations: Morgen-Walke Associates Gordon McCoun Media Contact: Steve DiMattia (212) 850-5600 IMPERIAL SUGAR COMPANY PLAN OF REORGANIZATION BECOMES EFFECTIVE SUGAR LAND, TX, August 29, 2001 -- Imperial Sugar Company today announced that its Second Amended and Restated Joint Plan of Reorganization (the "Plan"), confirmed by the U.S. Bankruptcy Court on August 7, 2001, has become effective. In accordance with the Plan, the Company's former common stock (OTC BB:IPRL) is canceled. Former shareholders in the Company will receive approximately 0.0062 shares of common stock in the reorganized company for each share previously held. Issuance of shares to former shareholders is expected to occur in September. Additionally, former shareholders will receive warrants to acquire common stock in the reorganized company, which will expire in seven years, on the basis of 0.0343 warrants for each share of common stock previously held. Issuance of the warrants and the setting of their exercise price are expected to take place within six months of the effective date when a determination is made of the maximum number of shares of new common stock to be issued to those creditors who will receive new common stock in settlement of their claims. The Company plans to have the new common stock and warrants listed on a national securities exchange as soon as practicable. In conjunction with the emergence, the Company completed its previously announced $256.1 million senior secured credit facility led by Harris Trust and Savings Bank, as Administrative and Collateral Agent and its $110 million -MORE- IMPERIAL SUGAR COMPANY PAGE 2 accounts receivable securitization facility with GE Capital. "With the reorganization completed, all of us at Imperial Sugar are looking forward to turning our full attention back to enhancing the profitability of our core business segments - the processing, selling and marketing of refined sugar, where we are a leader in industrial, private label and consumer branded products, and in the growing foodservice industry, in which we are the share leaders in a number of important product categories.", stated James C. Kempner, President and CEO of Imperial. Mr. Kempner went on to say, "I want to once again thank our employees, customers and suppliers, including the growers who supply sugarbeets to our Holly, Spreckels and Michigan factories, and the cane sugar millers who supply raw sugar to our Imperial, Colonial and Savannah refineries. Without their support this reorganization would not have been possible." Imperial Sugar Company is the largest processor and marketer of refined sugar in the United States and a major distributor to the foodservice market. The Company markets its products nationally under the Imperial(TM), Dixie Crystals(TM), Spreckels(TM), Pioneer(TM), Holly(TM), Diamond Crystal(TM) and Wholesome Sweeteners(TM) brands. Additional information about Imperial Sugar may be found on its web site at www.imperialsugar.com. --------------------- Statements regarding the Company's ability to maintain normal relationships with customers, the ability of the Company to establish normal terms and conditions with suppliers and vendors, prospects of the Company following emergence from bankruptcy, the Company's ability to list its securities on a national securities exchange and other statements which are not historical facts contained in this release are forward-looking statements that involve certain risks, uncertainties and assumptions. These include, but are not limited to, market factors, the effect of weather and economic conditions, farm and trade policy, the ability of the Company to realize planned cost savings, the available supply of sugar, available quantity and quality of sugarbeets and other factors detailed in the Company's Securities and Exchange Commission filings. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual outcomes may vary materially from those indicated. # # # -----END PRIVACY-ENHANCED MESSAGE-----