IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: )
)
)
) Chapter 11
AMERISERVE FOOD ) Case Nos. 00-358 00-373 (PJW)
DISTRIBUTION, INC., et al,1 ) 00-358 (PJW) through 00-385 (PJW)
) JOINTLY ADMINISTERED
)
Debtors. )
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DEBTORS' THIRD AMENDED JOINT LIQUIDATING PLAN
OF REORGANIZATION PURSUANT TO CHAPTER 11
OF THE UNITED STATES BANKRUPTCY CODE
James H.M. Sprayregen Laura Davis Jones
James A. Stempel Michael R. Seidl
Matthew N. Kleiman PACHULSKI, STANG, ZIEHL,
Geoffrey A. Richards YOUNG & JONES P.C.
Chris L. Dickerson 919 North Market Street, 16th Floor
KIRKLAND & ELLIS P.O. Box 8705
200 East Randolph Street Wilmington, DE 19899-8705 (Courier 19801)
Chicago, Illinois 60601 (302) 652-4100
(312) 861-2000 Co-Counsel for Debtors and
Co-Counsel for Debtors and Debtors in Possession
Debtors in Possession
--------------------------
1The Debtors are the following entities: AmeriServe Food Distribution,
Inc., NEBCO EVANS Holding Company, Holberg Warehouse Properties, Inc.,
AmeriServe Transportation, Inc., PSD Transportation Services, Inc., Chicago
Consolidated Corporation, ASNSC, Inc., Delta Transportation, Ltd., PSC Services
of Florida, Inc., Northland Transportation Services, Inc., ProSource Mexico
Holdings, Inc., NAVC Corp., North American Vantix Corp., and Vantix Logistics
Ltd.
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE IDEFINITIONS.........................................................1
1.1 Adequate Protection Agreements...................................1
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1.2 Ad Hoc Senior Secured Noteholder Committee.......................1
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1.3 Ad Hoc Senior Secured Noteholder Committee Professional Fees.....1
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1.4 Ad Hoc Senior Secured Noteholder Committee Professionals.........1
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1.5 Administrative Claims Bar Date...................................1
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1.6 Administrative Expense Claim.....................................2
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1.7 AFD..............................................................2
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1.8 AFD Interest.....................................................2
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1.9 Affiliate........................................................2
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1.10 Agent............................................................2
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1.11 Allowed Administrative Expense Claim.............................2
------------------------------------
1.12 Allowed Claim/allowed Interest...................................2
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1.13 Allowed General Unsecured Claim..................................2
-------------------------------
1.14 Allowed NEHC Claim...............................................2
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1.15 Allowed PACA Claim...............................................3
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1.16 Allowed Priority Tax Claim.......................................3
--------------------------
1.17 Allowed Reclamation Claim........................................3
-------------------------
1.18 Allowed Secured Claim............................................3
---------------------
1.19 Allowed Senior Secured Noteholder Claim..........................3
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1.20 Allowed Tranche A Lender Claim...................................3
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1.21 Allowed Tranche B Lender Claim...................................3
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1.22 Allowed Tricon Claim.............................................3
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1.23 Allowed Tricon Unsecured Claim...................................3
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1.24 Alternative Sale Transaction.....................................3
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1.25 AmeriServe Capital...............................................3
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1.26 ASNSC............................................................3
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1.27 ASNSC Interest...................................................3
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1.28 ATI..............................................................3
---
1.29 ATI Interest.....................................................3
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1.30 Ballot...........................................................4
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1.31 Ballot Date......................................................4
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1.32 Bankruptcy Causes of Action......................................4
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1.33 Bankruptcy Code..................................................4
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1.34 Bankruptcy Court.................................................4
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1.35 Bankruptcy Rules.................................................4
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1.36 Base Reserve Amount..............................................4
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1.37 BKC..............................................................4
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1.38 Business Day.....................................................4
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1.39 Cash.............................................................4
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i
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1.40 Cash Equivalents.................................................5
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1.41 CCC..............................................................5
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1.42 CCC Interest.....................................................5
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1.43 Chapter 11 Cases.................................................5
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1.44 Claim............................................................5
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1.45 Class............................................................5
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1.46 Collateral.......................................................5
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1.47 Collateral Support Reimbursement Obligation......................5
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1.48 Confirmation Date................................................5
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1.49 Confirmation Hearing.............................................5
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1.50 Confirmation Order...............................................6
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1.51 Credit Agreement.................................................6
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1.52 Creditor.........................................................6
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1.53 Creditors' Committee.............................................6
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1.55 Debtors..........................................................6
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1.56 Debtors in Possession............................................6
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1.57 Delta Transportation.............................................6
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1.58 Delta Transportation Interest....................................6
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1.59 DIP Facility.....................................................6
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1.60 DIP Facility Claim...............................................6
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1.61 DIP Financing Order..............................................6
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1.62 Disclosure Statement.............................................7
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1.63 Disputed Claim; Disputed Interest................................7
---------------------------------
1.64 Disputed Claim Amount............................................7
---------------------
1.65 Distribution Agreement...........................................7
----------------------
1.66 DLJ..............................................................7
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1.67 D&O Releasees....................................................7
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1.68 Effective Date...................................................7
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1.69 8 7/8% Senior Unsecured Notes....................................7
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1.70 Encumbered Residual Assets.......................................8
--------------------------
1.71 Entity...........................................................8
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1.72 Equity Security..................................................8
---------------
1.73 Excess Transition Costs..........................................8
-----------------------
1.74 15% Senior Convertible Notes.....................................8
----------------------------
1.75 Final Order......................................................8
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1.76 Finco............................................................8
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1.77 General Claims Bar Date..........................................9
-----------------------
1.78 General Unsecured Claim..........................................9
-----------------------
1.79 Holberg..........................................................9
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1.80 HWPI.............................................................9
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1.81 HWPI Interest....................................................9
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1.82 Intercompany Affiliate...........................................9
----------------------
1.83 Intercompany Claims..............................................9
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ii
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1.84 Interest.........................................................9
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1.85 IRC..............................................................9
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1.86 IRS..............................................................9
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1.87 Lien.............................................................9
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1.88 McLane...........................................................9
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1.89 McLane Purchase Agreement........................................9
-------------------------
1.90 McLane Proceeds..................................................9
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1.91 NAVC............................................................10
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1.92 NAVC Interest...................................................10
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1.93 NEDI............................................................10
----
1.95 NEHC............................................................10
----
1.96 NEHC Interest...................................................10
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1.97 North American Vantix...........................................10
---------------------
1.98 North American Vantix Interest..................................10
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1.99 NTSI............................................................10
----
1.100 Noteholder Distribution.........................................10
-----------------------
1.101 Noteholder Proportion...........................................10
---------------------
1.102 NTSI Interest...................................................10
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1.103 PACA Account....................................................10
------------
1.104 PACA Cash Amount................................................10
----------------
1.105 PACA Claim......................................................10
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1.106 Parent Guaranty.................................................10
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1.107 Party in Interest Matrix........................................10
------------------------
1.108 Person..........................................................10
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1.109 Petition Date...................................................11
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1.110 Plan............................................................11
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1.111 Plan Administrator..............................................11
------------------
1.112 Plan Supplement.................................................11
---------------
1.113 POC.............................................................11
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1.114 Post-Confirmation Administrative Expense Advances...............11
-------------------------------------------------
1.115 Post-Effective Date Administrative Expense Budget...............11
-------------------------------------------------
1.116 Post-Confirmation Estate........................................11
------------------------
1.117 Post-Confirmation Estate Agreement:.............................11
----------------------------------
1.118 Post-Confirmation Estate Assets.................................12
-------------------------------
1.119 Priority Non-Tax Claim..........................................12
----------------------
1.120 Priority Tax Claim..............................................12
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1.121 Professional Compensation and Reimbursement Claims..............12
--------------------------------------------------
1.122 Pro Rata Share..................................................12
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1.123 ProSource Mexico................................................12
----------------
1.124 ProSource Mexico Interest:......................................12
-------------------------
1.125 PSC Services....................................................12
------------
1.126 PSC Services Interest...........................................12
---------------------
1.127 PSD Transportation..............................................12
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1.128 PSD Transportation Interest.....................................12
---------------------------
1.129 Reclamation Claim...............................................12
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1.130 Reclamation Committee Designee..................................13
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1.131 Record Date.....................................................13
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1.132 Sale Transaction................................................13
----------------
1.134 Schedules.......................................................13
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1.135 Secured Claim...................................................13
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1.136 Secured Lender Causes of Action.................................13
-------------------------------
1.137 Secured Lender Claims...........................................14
---------------------
1.138 Secured Lenders.................................................14
---------------
1.139 Senior AFD Indenture............................................14
--------------------
1.140 Senior AFD Indenture Trustee....................................14
----------------------------
1.141 Senior Secured Indenture........................................14
------------------------
1.142 Senior Secured Indenture Trustee................................14
--------------------------------
1.143 Senior Secured Loan.............................................14
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1.144 Senior Secured Noteholders......................................14
--------------------------
1.145 Senior Secured Noteholder Claims................................14
--------------------------------
1.146 Senior Secured Noteholder Proceeds..............................14
----------------------------------
1.147 Senior Secured Notes............................................14
--------------------
1.148 Subordinated AFD Indenture......................................15
--------------------------
1.149 Subordinated AFD Indenture Trustee..............................15
----------------------------------
1.150 Subordinated NEHC Indenture.....................................15
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1.151 Subordinated NEHC Indenture Trustee.............................15
-----------------------------------
1.152 Subsidiary Guaranty.............................................15
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1.153 Target PACA Amount..............................................15
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1.154 10 1/8% Senior Subordinated Notes...............................15
---------------------------------
1.155 13% Junior Subordinated Notes...................................15
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1.156 131/4% Senior Unsecured Notes...................................15
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1.157 Tranche A Lender Claims.........................................15
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1.158 Tranche A Lenders...............................................15
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1.159 Tranche B Interest..............................................15
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1.160 Tranche B Lender................................................16
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1.161 Tranche B Lender Claims.........................................16
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1.162 Tranche B Recovery..............................................16
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1.163 Tranche B Reserve...............................................16
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1.164 Tricon..........................................................16
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1.165 Tricon Claims...................................................16
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1.166 Tricon Designee.................................................16
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1.167 Tricon Funding..................................................16
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1.168 Tricon Parties..................................................16
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1.169 Tricon Prepetition Receivable...................................16
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1.170 Tricon Reimbursement Claim......................................16
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1.171 12 3/8% Senior Discount Notes...................................16
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iv
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1.172 Unsecured Claim...................................................17
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1.173 Unsecured Notes...................................................17
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1.174 Vantix Logistics..................................................17
----------------
1.175 Vantix Logistics Interest.........................................17
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1.176 Other Definitions.................................................17
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ARTICLE II COMPROMISE AND SETTLEMENT OF DISPUTES;ASSUMPTION OF
OBLIGATIONS UNDER THE PLAN...............................................17
2.1 Compromise and Settlement.........................................17
-------------------------
ARTICLE III SUBSTANTIVE CONSOLIDATION OF DEBTORS; CANCELLATION OF
INTERCOMPANY CLAIMS......................................................18
3.1 Substantive Consolidation.........................................18
-------------------------
3.2 Cancellation of Intercompany Claims...............................18
-----------------------------------
ARTICLE IV PROVISIONS FOR PAYMENT OF ADMINISTRATIVE EXPENSE CLAIMS
AND PRIORITY TAX CLAIMS..................................................18
4.1 Administrative Expense Claims.....................................18
-----------------------------
4.2 Payment of Priority Tax Claims....................................18
------------------------------
ARTICLE V CLASSIFICATION OF CLAIMS AND INTERESTS..............................19
ARTICLE VI PROVISIONS FOR TREATMENT OF PACA CLAIMS (CLASS 1)..................19
6.1 Payment of Allowed PACA Claims....................................19
------------------------------
ARTICLE VII PROVISION FOR TREATMENT OF PRIORITY NON-TAXCLAIMS (CLASS 2).......20
7.1 Payment of Allowed Priority Non-Tax Claims........................20
------------------------------------------
ARTICLE VIII PROVISION FOR TREATMENT OF SECURED CLAIMS (CLASS 3)..............20
8.1 Treatment of Secured Claims.......................................20
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ARTICLE IX PROVISION FOR TREATMENT OF TRANCHE A LENDERCLAIMS (CLASS 4)........20
9.1 Allowance of Tranche A Lender Claims..............................20
------------------------------------
9.2 Treatment of Allowed Tranche A Lender Claims......................21
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ARTICLE X PROVISION FOR TREATMENT OF TRANCHE B LENDERCLAIMS (CLASS 5).........21
10.1 Treatment of Tranche B Lender Claims..............................21
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ARTICLE XI PROVISION FOR TREATMENT OF SENIOR SECURED NOTEHOLDER CLAIMS
(CLASS 6).................................................................21
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11.1 Allowance of Senior Secured Noteholder Claims.....................21
---------------------------------------------
11.2 Treatment of Senior Secured Noteholder Claims.....................22
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ARTICLE XII PROVISION FOR TREATMENT OF TRICONCLAIMS (CLASS 7).................23
12.1 Allowance of Tricon Claims.......................................23
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12.2 Non-Recourse Recoveries..........................................23
-----------------------
12.3 Proceeds of Post-Confirmation Estate Assets......................24
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ARTICLE XIII PROVISIONS FOR CLASSIFICATION AND TREATMENT OF GENERAL UNSECURED
CLAIMS (CLASS 8)..........................................................25
13.1 Classification of General Unsecured Claims........................25
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13.2 Treatment of General Unsecured Claims.............................25
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ARTICLE XIV PROVISION FOR TREATMENT OFRECLAMATION CLAIMS (CLASS 9)............26
14.1 Treatment of Reclamation Claims:.................................26
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ARTICLE XV PROVISION FOR TREATMENT OF NEHCCLAIMS (CLASS 10)...................26
15.1 Treatment of NEHC Claims:........................................26
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ARTICLE XVI PROVISION FOR CANCELLATION OF INTERESTS IN DEBTORS
(CLASS 11)................................................................27
16.1 Cancellation of Interests........................................27
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ARTICLE XVII PROVISIONS FOR IMPLEMENTATION OF THE PLAN........................27
17.1 Sale of Assets...................................................27
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17.2 Funding of the Plan:.............................................27
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17.3 Tricon Contract Assumption.......................................28
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17.4 Establishment of the Post-Confirmation Estate....................29
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17.5 Funding Expenses of the Post-Confirmation Estate.................29
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17.6 Corporate Action.................................................29
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17.7 Preservation of Rights of Action.................................29
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17.8 Appointment of Plan Administrator................................34
---------------------------------
17.9 Oversight Committee..............................................34
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17.10 Tricon Funding Performance......................................35
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17.11 Cancellation of Notes, Instruments, Debentures and Equity
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Securities.......................................................35
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17.12 Surrender of Notes...............................................35
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17.13 Survival of Certain Terms of Indentures..........................36
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ARTICLE XVIII PROVISIONS FOR TREATMENT OF DISPUTED CLAIMSUNDER THE PLAN.......36
18.1 Objections to Claims; Prosecution of Disputed Claims.............36
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18.2 Estimation of Claims.............................................36
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18.3 Payments and Distributions On Disputed Claims....................36
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ARTICLE XIX POST-CONFIRMATION ESTATE; THE PLAN ADMINISTRATOR..................37
19.1 Generally........................................................37
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19.2 Purpose of the Post-Confirmation Estate..........................37
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19.3 Transfer of Assets...............................................37
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19.4 Valuation of Assets..............................................38
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19.5 Distribution; Withholding........................................38
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19.6 Post-Confirmation Estate Implementation..........................38
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19.7 Disputed Claims Reserve..........................................38
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19.8 Termination of Post-Confirmation Estate..........................39
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19.9 Termination of Plan Administrator................................39
---------------------------------
19.10 Exculpation; Indemnification.....................................39
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ARTICLE XX ACCEPTANCE OR REJECTION OF PLAN; EFFECT OF REJECTIONBY ONE OR MORE
CLASSES OF CLAIMS OR INTEREST.............................................40
20.1 Impaired Classes to Vote.........................................40
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20.2 Acceptance by Class of Creditors and Holders of Interests........40
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20.3 Cramdown.........................................................40
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ARTICLE XXI IDENTIFICATION OF CLAIMS AND INTERESTSIMPAIRED AND NOT IMPAIRED
BY THE PLAN...............................................................40
21.1 Impaired and Unimpaired Classes..................................40
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21.2 Impaired Classes to Vote On Plan.................................40
--------------------------------
21.3 Controversy Concerning Impairment................................40
---------------------------------
ARTICLE XXII PROVISIONS REGARDING DISTRIBUTIONS...............................41
22.1 Manner of Payment Under the Plan.................................41
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22.2 Delivery of Distributions........................................41
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22.3 Undeliverable Distributions......................................41
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22.4 Compliance With Tax Requirements/Allocation......................41
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22.5 Time Bar to Cash Payments........................................42
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22.6 Distributions after Effective Date...............................42
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22.7 Fractional Dollars; De Minimis Distributions.....................42
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22.8 Set-Offs.........................................................42
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22.9 Subordination Rights.............................................42
--------------------
22.10 Settlement of Claims and Controversies...........................43
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ARTICLE XXIII CREDITORS' COMMITTEE............................................43
23.1 Creditors' Committee Composition and Term........................43
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ARTICLE XXIV EXECUTORY CONTRACTS AND UNEXPIRED LEASES.........................44
24.1 Rejection of Executory Contracts and Unexpired Leases............44
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24.2 Cure of Defaults for Assumed Executory Contracts and
Unexpired Leases.................................................44
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24.3 Rejection Damage Claims..........................................44
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24.4 Indemnification and Reimbursement Obligations....................44
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ARTICLE XXV CONDITIONS PRECEDENT TO CONFIRMATION AND EFFECTIVE DATE OF
THE PLAN..................................................................45
25.1 Conditions Precedent to Confirmation Date of the Plan............45
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25.2 Conditions Precedent to Effective Date of the Plan...............45
--------------------------------------------------
25.3 Waiver of Conditions Precedent...................................45
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ARTICLE XXVI RETENTION OF JURISDICTION........................................46
26.1 Retention of Jurisdiction........................................46
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ARTICLE XXVII MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN.............47
27.1 Modification of Plan.............................................47
--------------------
27.2 Revocation or Withdrawal.........................................48
------------------------
ARTICLE XXVIII MISCELLANEOUS PROVISIONS.......................................48
28.1 Disallowance of Claims...........................................48
----------------------
28.2 Title to Assets..................................................48
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28.3 Injunction:......................................................48
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28.4 Injunction as to Tricon and BKC..................................49
-------------------------------
28.5 Term of Existing Injunctions or Stays............................49
-------------------------------------
28.6 Injunction as to D&O RELEASEES...................................49
------------------------------
28.7 Limited Releases by and of Certain Parties.......................50
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28.8 Exculpation......................................................50
-----------
28.9 Preservation of Rights of Action.................................50
--------------------------------
28.10 Surrender of Notes...............................................50
------------------
28.11 Survival of Certain Terms of Indentures..........................51
---------------------------------------
28.12 Payment of Statutory Fees........................................51
-------------------------
28.13 Post-Effective Date Fees and Expenses............................51
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28.14 Section 1146 Exception...........................................51
----------------------
28.15 Severability.....................................................51
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28.16 Conflicts........................................................51
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28.17 Governing Law....................................................51
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28.18 Notices..........................................................52
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28.19 Closing of Cases.................................................52
----------------
28.20 Section Headings.................................................52
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viii
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AmeriServe Food Distribution, Inc., NEBCO EVANS Holding
Company, Holberg Warehouse Properties, Inc., AmeriServe Transportation, Inc.,
PSD Transportation Services, Inc., Chicago Consolidated Corporation, ASNSC,
Inc., Delta Transportation, Ltd., PSC Services of Florida, Inc., Northland
Transportation Services, Inc., ProSource Mexico Holdings, Inc., NAVC Corp.,
North American Vantix Corp., and Vantix Logistics Ltd. hereby propose the
following third amended joint liquidating plan of reorganization pursuant to
sections 1121(a) and (c) and 1123 of the Bankruptcy Code.
ARTICLE I
DEFINITIONS
As used in the Plan, the following terms shall have the
respective meanings specified below and be equally applicable to the singular
and plural of terms defined:
1.1 ADEQUATE PROTECTION AGREEMENTS: Collectively, (i) the
Interim Stipulation and Order Authorizing the Use of Cash Collateral and
Granting Replacement Liens entered in the Chapter 11 Cases on February 2, 2000;
(ii) the Second Interim Stipulation and Order Authorizing the Use of Cash
Collateral and Granting Replacement Liens entered in the Chapter 11 Cases on
March 17, 2000; (iii) the Third Interim Stipulation and Order Authorizing the
Use of Cash Collateral and Granting Replacement Liens entered in the Chapter 11
Cases on March 24, 2000; (iv) the DIP Financing Order; and (v) the Security
Agreement dated as of February 2, 2000 executed in favor of the Agent by BKC and
Tricon Restaurant Services Group, Inc.
1.2 AD HOC SENIOR SECURED NOTEHOLDER COMMITTEE: Oakhill
Securities Fund, L.P., Oaktree Capital Management, LLC, Conseco Capital
Management, Inc. and Morgens, Waterfall, Vintiadis & Company, Inc.
1.3 AD HOC SENIOR SECURED NOTEHOLDER COMMITTEE PROFESSIONAL
FEES: The sum of (i) accrued fees and expenses and (ii) retainers approved by
the Ad Hoc Senior Secured Noteholder Committee which are to be distributed by
the Debtors to the Ad Hoc Senior Secured Noteholder Committee Professionals on
the Plan Effective Date.
1.4 AD HOC SENIOR SECURED NOTEHOLDER COMMITTEE PROFESSIONALS:
The following legal and financial professionals retained by the Ad Hoc Senior
Secured Noteholder Committee in connection with these Chapter 11 Cases: Skadden,
Arps, Slate, Meagher & Flom LLP; Conway Del Genio Gries & Co., LLC; and
Kasowitz, Benson, Torres & Friedman LLP.
1.5 ADMINISTRATIVE CLAIMS BAR DATE: October 20, 2000, which is
the date set by the Bankruptcy Court as the last date for timely submission of a
proof of Claim on account of an Administrative Expense Claim.
<PAGE>
1.6 ADMINISTRATIVE EXPENSE CLAIM: Any Claim (other than a
Tricon Claim) constituting a cost or expense of administration of the Chapter 11
Cases asserted under sections 503(b) and 507(a)(1) of the Bankruptcy Code,
including, without limitation, any actual and necessary costs and expenses of
preserving the estates of the Debtors, any actual and necessary costs and
expenses of operating the businesses of the Debtors in Possession, any
indebtedness or obligations incurred or assumed by the Debtors in Possession in
connection with the administration and implementation of the Plan, the
administration, prosecution or defense of Claims by or against the Debtors and
for distributions under the Plan, any Claims for compensation and reimbursement
of expenses arising during the period from and after the Petition Date and prior
to the Effective Date or otherwise in accordance with the provisions of the
Plan, any Professional Compensation and Reimbursement Claims and any fees or
charges assessed against the Debtors' estates pursuant to 28 U.S.C. ss. 1930.
1.7 AFD: AmeriServe Food Distribution, Inc., a Delaware
corporation.
1.8 AFD INTEREST: An Interest in AFD.
1.9 AFFILIATE: Any Entity that is an "affiliate" of the
Debtors within the meaning of section 101(2) of the Bankruptcy Code.
1.10 AGENT: Bank of America, N.A., as administrative agent for
the Secured Lenders under the Credit Agreement, its affiliates and their
predecessors in interest, successors in interest and assigns.
1.11 ALLOWED ADMINISTRATIVE EXPENSE CLAIM: An Administrative
Expense Claim, to the extent it is or has become an Allowed Claim.
1.12 ALLOWED CLAIM/ALLOWED INTEREST: Any Claim against or
Interest in the Debtors, (i) proof of which was filed on or before the date
designated by the Bankruptcy Court as the last date for filing proofs of Claim
against or Interests in the Debtors, (ii) if no proof of Claim or Interest has
been timely filed, which has been or hereafter is listed by the Debtors in their
Schedules as liquidated in amount and not disputed or contingent or (iii) any
Interest registered in the stock register or partnership documents maintained by
or on behalf of the Debtors as of the Record Date and, in each such case in
clauses (i), (ii) and (iii) above, a Claim or Interest as to which no objection
to the allowance thereof has been interposed within the applicable period of
limitation fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules or a
Final Order, or as to which an objection has been interposed and such Claim or
Interest has been allowed in whole or in part by a Final Order. For purposes of
determining the amount of an "Allowed Claim", there shall be deducted therefrom
an amount equal to the amount of any claim which the Debtors may hold against
the holder thereof, to the extent such claim may be set off pursuant to section
553 of the Bankruptcy Code.
1.13 ALLOWED GENERAL UNSECURED CLAIM: A General Unsecured
Claim, to the extent it is or has become an Allowed Claim.
1.14 ALLOWED NEHC CLAIM: A NEHC Claim, to the extent it is or
has become an Allowed Claim.
2
<PAGE>
1.15 ALLOWED PACA CLAIM: A PACA Claim, to the extent it is or
has become an allowed Claim.
1.16 ALLOWED PRIORITY TAX CLAIM: A Priority Tax Claim, to the
extent it is or has become an Allowed Claim.
1.17 ALLOWED RECLAMATION CLAIM: A Reclamation Claim, to the
extent it is or has become an Allowed Claim.
1.18 ALLOWED SECURED CLAIM: A Secured Claim, to the extent it
is or has become an Allowed Claim.
1.19 ALLOWED SENIOR SECURED NOTEHOLDER CLAIM: A Secured Senior
Noteholder Claim, to the extent it is or has become an Allowed Claim.
1.20 ALLOWED TRANCHE A LENDER CLAIM: A Tranche A Lender Claim,
to the extent it is or has become an Allowed Claim.
1.21 ALLOWED TRANCHE B LENDER CLAIM: A Tranche B Lender Claim,
to the extent it is or has become an Allowed Claim.
1.22 ALLOWED TRICON CLAIM: A Tricon Claim, to the extent it is
or has become an Allowed Claim.
1.23 ALLOWED TRICON UNSECURED CLAIM: A Tricon Unsecured Claim,
to the extent it is or has become an Allowed Claim.
1.24 ALTERNATIVE SALE TRANSACTION: In the event that a higher
and better offer for the assets set forth in the McLane Purchase Agreement is
accepted by the Debtors and approved by the Bankruptcy Court, the sale of
certain of the Debtors' assets through an alternative asset purchase agreement
which shall be consummated on or prior to the Effective Date.
1.25 AMERISERVE CAPITAL: AmeriServe Capital Corporation, a
Delaware corporation.
1.26 ASNSC: ASNSC, Inc., a Delaware corporation.
1.27 ASNSC INTEREST: An Interest in ASNSC.
1.28 ATI: AmeriServe Transportation, Inc., a Nebraska
corporation.
1.29 ATI INTEREST: An Interest in ATI.
3
<PAGE>
1.30 BALLOT: The form distributed to each holder of an
impaired Claim on which is to be indicated acceptance or rejection of the Plan.
1.31 BALLOT DATE: November 16, 2000, which is the date set by
the Bankruptcy Court as the last date for timely submission by a Creditor of a
ballot accepting or rejecting the Plan.
1.32 BANKRUPTCY CAUSES OF ACTION: All claims, actions, causes
of action, choses in action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialities, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, third-party
claims, counterclaims, and crossclaims (including, but not limited to, all
claims and any avoidance, recovery, subordination or other actions against
insiders and/or any other Entities under the Bankruptcy Code, including sections
506, 510, 542, 543, 544, 545, 547, 548 549, 500, 551, and 553 of the Bankruptcy
Code or otherwise) of the Debtors, the Debtors in Possession, and/or the Post
Confirmation Estate (including, but not limited to, those actions listed in
Section 17.7 of the Plan) that are or may be pending on the Effective Date or
instituted by the Plan Administrator, on behalf of the Post Confirmation Estate,
after the Effective Date against any Entity, based in law or equity, including,
but not limited to, under the Bankruptcy Code, whether direct, indirect,
derivative, or otherwise and whether asserted or unasserted as of the date of
entry of the Confirmation Order.
1.33 BANKRUPTCY CODE: Title 11 of the United States Code, as
applicable to the Chapter 11 Cases.
1.34 BANKRUPTCY COURT: The United States Bankruptcy Court for
the District of Delaware or such other court having jurisdiction over the
Chapter 11 Cases.
1.35 BANKRUPTCY RULES: The Federal Rules of Bankruptcy
Procedure, as promulgated by the United States Supreme Court under 28
U.S.C.ss.2075 and any Local Rules of the Bankruptcy Court, as amended.
1.36 BASE RESERVE AMOUNT: The projected reserves for payment
of Allowed Administrative Expense Claims (other than Professional Compensation
and Reimbursement Claims), Allowed Priority Tax Claims and Allowed Priority
Non-Tax Claims as set forth in the pre-Effective Date budget annexed to the Plan
Supplement as EXHIBIT C.
1.37 BKC: Burger King Corporation, a Florida corporation.
1.38 BUSINESS DAY: A day other than a Saturday, a Sunday or
any other day on which commercial banks in Dallas, Texas are required or
authorized to close by law or executive order.
1.39 CASH: Lawful currency of the United States of America.
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1.40 CASH EQUIVALENTS: Equivalents of Cash in the form of
readily marketable securities or instruments issued by a person other than the
Debtors, including, without limitation, readily marketable direct obligations
of, or obligations guaranteed by, the United States of America, commercial paper
of domestic corporations carrying a Moody's Rating of "A" or better, or
equivalent rating of any other nationally recognized rating service, or
interest-bearing certificates of deposit or other similar obligations of
domestic banks or other financial institutions having a shareholders' equity or
equivalent capital of not less than One Hundred Million Dollars ($100,000,000),
having maturities of not more than one (1) year, at the then best generally
available rates of interest for like amounts and like periods.
1.41 CCC: Chicago Consolidated Corporation, an Illinois
corporation.
1.42 CCC INTEREST: An Interest in CCC.
1.43 CHAPTER 11 CASES: The cases commenced under chapter 11 of
the Bankruptcy Code by the Debtors on the Petition Date, styled IN RE AMERISERVE
FOOD DISTRIBUTION, INC., Chapter 11 Case No-0358 (PJW), Jointly Administered,
currently pending before the Bankruptcy Court.
1.44 CLAIM: Any right to payment from the Debtors, whether or
not such right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured,
or unsecured, known or unknown; or any right to an equitable remedy for breach
of performance if such breach gives rise to a right of payment from the Debtors,
whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.
1.45 CLASS: A category of holders of Claims or Interests as
set forth in Article V of the Plan.
1.46 COLLATERAL: Any property or interest in property of the
estates of the Debtors that is subject to an unavoidable Lien to secure the
payment or performance of a Claim.
1.47 COLLATERAL SUPPORT REIMBURSEMENT OBLIGATION: The
reimbursement claim asserted by Tricon against the Debtors for an amount equal
to the positive difference between (i) the aggregate sums paid by Tricon on the
Effective Date to the Debtors and for the benefit of the PACA Claims, the
Tranche A Lenders Claims, the Tranche B Lenders Claims and the Senior Secured
Noteholder Claims, and (ii) the aggregate net proceeds paid to Tricon by the
Post-Confirmation Estate in respect of the Encumbered Residual Assets.
1.48 CONFIRMATION DATE: The date upon which the Clerk of the
Bankruptcy Court has entered the Confirmation Order on the docket in each of the
Chapter 11 Cases.
1.49 CONFIRMATION HEARING: The hearing to consider
confirmation of the Plan in accordance with section 1129 of the Bankruptcy Code,
as the same may be adjourned from time to time.
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1.50 CONFIRMATION ORDER: The order of the Bankruptcy Court
confirming the Plan in accordance with the provisions of chapter 11 of the
Bankruptcy Code.
1.51 CREDIT AGREEMENT: That certain Fifth Amended and Restated
Credit Agreement, dated as of December 8, 1999, by and among AFD, the Agent, the
Tranche A Lenders, the Tranche B Lender, and Finco and any of the documents and
instruments related thereto.
1.52 CREDITOR: Any Entity that has a Claim against the Debtors
that arose or is deemed to have arisen on or prior to the Petition Date,
including, without limitation, a Claim against the Debtors' chapter 11 estates
of a kind specified in sections 348(d), 502(f), 502(g), 502(h) or 502(i) of the
Bankruptcy Code.
1.53 CREDITORS' COMMITTEE: The statutory committee of
unsecured creditors appointed in the Chapter 11 Cases pursuant to section 1102
of the Bankruptcy Code as constituted from time to time up to the Effective
Date.
1.54 CREDITORS' COMMITTEE DESIGNEES: The members of the POC
designated by the Creditors' Committee and their successors appointed pursuant
to the Post-Confirmation Estate Agreement.
1.55 DEBTORS: AmeriServe Food Distribution, Inc., NEBCO EVANS
Holding Company, Holberg Warehouse Properties, Inc., AmeriServe Transportation,
Inc., PSD Transportation Services, Inc., Chicago Consolidated Corporation,
ASNSC, Inc., Delta Transportation, Ltd., PSC Services of Florida, Inc.,
Northland Transportation Services, Inc., ProSource Mexico Holdings, Inc., NAVC
Corp., North American Vantix Corp. and Vantix Logistics Ltd.
1.56 DEBTORS IN POSSESSION: The Debtors as debtors in
possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
1.57 DELTA TRANSPORTATION: Delta Transportation, Ltd., a
Wisconsin corporation.
1.58 DELTA TRANSPORTATION INTEREST: An Interest in Delta
Transportation.
1.59 DIP FACILITY: The debtor in possession loan facilities
provided to the Debtors pursuant to the terms of the DIP Financing Order.
1.60 DIP FACILITY CLAIM: The unpaid balance (as agreed to by
the Debtors and Tricon in writing) of the DIP Facility as of the Effective Date.
1.61 DIP FINANCING ORDER: Collectively, the Interim Order Pursuant to 11 U.S.C.
ss.ss. 363 and 364 Approving Borrowing, Granting Liens, and Authorizing Certain
Postpetition Transactions entered by the Bankruptcy Court on February 2, 2000
and the Final
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Order Pursuant to 11 U.S.C. ss.ss. 363 and 364 Approving Borrowing, Granting
Liens, and Authorizing Certain Postpetition Transactions entered by the
Bankruptcy Court on or about March 17, 2000, and any amendments or modifications
thereof.
1.62 DISCLOSURE STATEMENT: The disclosure statement related to
the Plan and approved by the Bankruptcy Court in accordance with section 1125 of
the Bankruptcy Code.
1.63 DISPUTED CLAIM; DISPUTED INTEREST: Any Claim against or
Interest in the Debtors, to the extent the allowance of which is the subject of
a timely objection or request for estimation in accordance with the Plan, the
Bankruptcy Code, the Bankruptcy Rules or the Confirmation Order, or is otherwise
disputed by the Debtors in accordance with applicable law, which objection,
request for estimation or dispute has not been withdrawn or determined by a
Final Order.
1.64 DISPUTED CLAIM AMOUNT: The lesser of (a) the amount of a
Disputed Claim as filed with the Bankruptcy Court and (b) if the Bankruptcy
Court has estimated such Disputed Claim pursuant to section 502(c) of the
Bankruptcy Code, the amount of a Disputed Claim as estimated by the Bankruptcy
Court; PROVIDED, HOWEVER, that nothing contained in the Plan is intended to or
shall affect any Entity's rights under section 502(j) of the Bankruptcy Code.
1.65 DISTRIBUTION AGREEMENT: The Amended and Restated Sales
and Distribution Agreement, effective as of November 1, 1998, by and among AFD
and the Tricon Parties, as amended from time to time.
1.66 DLJ: Donaldson, Lufkin & Jenrette, Inc., Donaldson,
Lufkin & Jenrette Securities Corporation, DLJ Capital Funding, Inc., DLJ
Merchant Banking, L.P., DLJ Merchant Banking, L.P. II, each of their affiliates
(including the Tranche B Lender) and each of their predecessors in interest,
successors in interest and assigns.
1.67 D&O RELEASEES: All officers, directors, employees,
financial advisors, consultants, accountants, attorneys, investment bankers,
agents and representatives of any of the Debtors who served in such capacity on
or after the Petition Date.
1.68 EFFECTIVE DATE: The date selected by the Debtors which is
a Business Day after the Confirmation Date on which all conditions specified in
Section 25.2 of the Plan have been satisfied or waived. When used in the Plan,
Effective Date means on the Effective Date or as soon as reasonably practicable
thereafter.
1.69 8 7/8% SENIOR UNSECURED NOTES: Those certain senior
unsecured notes due October 15, 2006 issued by AFD in the original aggregate
principal amount of Three Hundred Fifty Million Dollars ($350,000,000) in
accordance with the terms and conditions of the Senior AFD Indenture.
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1.70 ENCUMBERED RESIDUAL ASSETS: All assets belonging to the
Debtors or their respective estates existing on or after the Effective Date (and
after giving effect to closing of the Sale Transaction or the Alternative Sale
Transaction) except for (i) Cash on hand on the Effective Date, the Tricon
Funding proceeds and the McLane Proceeds (or the proceeds resulting from an
Alternative Sale Transaction), (ii) Bankruptcy Causes of Action and (iii) assets
sold to McLane in connection with the Sale Transaction or such other purchaser
pursuant to the terms of an Alternative Sale Transaction.
1.71 ENTITY: A Person, a corporation, a general partnership, a
limited partnership, a limited liability company, a limited liability
partnership, an association, a joint stock company, a joint venture, an estate,
a trust, an unincorporated organization, a Governmental Unit or any subdivision
thereof or any other entity.
1.72 EQUITY SECURITY: A (i) share in a corporation, whether or
not denominated "stock", or similar security, (ii) an interest of a limited
partner in a limited partnership, (iii) an interest of a general partner in a
general partnership or (iv) a warrant or right, other than a right to consent,
to purchase, sell, or subscribe to a share, security, or interest of a kind
specified in (i), (ii), (iii), or (iv) of this definition.
1.73 EXCESS TRANSITION COSTS: Cash or Cash Equivalents, if
any, advanced or contributed by Tricon prior to the Effective Date to the
Debtors to fund transition costs and other administrative expenses of the
Debtors' estates that are in excess of the DIP Facility.
1.74 15% SENIOR CONVERTIBLE NOTES: Those certain senior
unsecured convertible notes due December 15, 2008 issued by NEHC to NEDI in the
original aggregate principal amount of Five Million Dollars ($5,000,000).
1.75 FINAL ORDER: An order of the Bankruptcy Court or any
other court of competent jurisdiction as to which the time to appeal, petition
for certiorari or move for reargument or rehearing has expired and as to which
no appeal, petition for certiorari or other proceedings for reargument or
rehearing shall then be pending; and if an appeal, writ of certiorari,
reargument or rehearing thereof has been sought, such order shall have been
affirmed by the highest court to which such order was appealed, or certiorari
shall have been denied or reargument or rehearing shall have been denied or
resulted in no modification of such order, and the time to take any further
appeal, petition for certiorari or move for reargument or rehearing shall have
expired; PROVIDED, HOWEVER, that the possibility that a motion under Rule 59 or
Rule 60 of the Federal Rules of Civil Procedure or any analogous rule under the
Bankruptcy Rules, may be but has not then been filed with respect to such order,
shall not cause such order not to be a Final Order.
1.76 FINCO: AmeriServe Finance Trust, a Delaware limited
purpose business trust.
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1.77 GENERAL CLAIMS BAR DATE: September 12, 2000, which is the
date set by the Bankruptcy Court as the last date for timely submission of a
proof of Interest or proof of Claim for all Claims other than Administrative
Expense Claims.
1.78 GENERAL UNSECURED CLAIM: An Unsecured Claim, other than
an Intercompany Claim, Reclamation Claim or a NEHC Claim.
1.79 HOLBERG: Holberg Industries, Inc., a Delaware
corporation.
1.80 HWPI: Holberg Warehouse Properties, Inc., a Delaware
corporation.
1.81 HWPI INTEREST: An Interest in HWPI.
1.82 INTERCOMPANY AFFILIATE: Any of the Debtors other than
NEHC and any direct or indirect subsidiary of AFD.
1.83 INTERCOMPANY CLAIMS: Any Claim held by any Intercompany
Affiliate against any Debtor.
1.84 INTEREST: means any ownership interest in any Debtor,
including, but not limited to, an interest in any issued, unissued, authorized
or outstanding shares or stock and other Equity Security together with any
warrants, options or contractual rights to purchase or acquire such interests at
any time and all rights arising with respect thereto.
1.85 IRC: The Internal Revenue Code of 1986, as amended from
time to time.
1.86 IRS: The Internal Revenue Service, an agency of the
United States Department of the Treasury.
1.87 LIEN: Any charge against or interest in property to
secure payment of a debt or performance of an obligation.
1.88 MCLANE: McLane Company, Inc., a Texas corporation.
1.89 MCLANE PURCHASE AGREEMENT: That certain Asset Purchase
Agreement, dated as of August 18, 2000, by and among certain of the Debtors and
McLane, together with such amendments and/or modifications to such Agreement
made in accordance with its terms, pursuant to which the Debtors will, as of the
Effective Date, sell and transfer certain assets and assume and assign certain
contracts and leases to McLane, subject to the Debtors' receipt and acceptance
of higher and better offers.
1.90 MCLANE PROCEEDS: The amount of Cash and Cash Equivalents
received by the Debtors prior to and on the Effective Date pursuant to the terms
of the McLane Purchase Agreement.
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1.91 NAVC: NAVC Corp., a Nevada corporation.
1.92 NAVC INTEREST: An Interest in NAVC.
1.93 NEDI: NEBCO EVANS Distributors, Inc., a Delaware
corporation.
1.94 NEHC CLAIM: A Claim against NEHC.
1.95 NEHC: NEBCO EVANS Holding Company, Inc., a Delaware
corporation.
1.96 NEHC INTEREST: An Interest in NEHC.
1.97 NORTH AMERICAN VANTIX: North American Vantix Corp., a
Delaware corporation.
1.98 NORTH AMERICAN VANTIX INTEREST: An Interest in North
American Vantix Corp.
1.99 NTSI: Northland Transportation Services, Inc., a Nebraska
corporation.
1.100 NOTEHOLDER DISTRIBUTION: Defined in Section 11.2 of the
Plan.
1.101 NOTEHOLDER PROPORTION: Defined in Section 11.2 of the
Plan.
1.102 NTSI INTEREST: An Interest in NTSI.
1.103 PACA ACCOUNT: The account established by the Debtors
from which all distributions to holders of PACA Claims have been and will be
satisfied.
1.104 PACA CASH AMOUNT: The amount of Cash necessary to
satisfy distributions to holders of PACA Claims.
1.105 PACA CLAIM: A Claim asserted pursuant to the Perishable
Agricultural Commodity Act, 7 U.S.C.ss.499a ET SEQ., the Packers and Stockyards
Act, 7 U.S.C.ss.181 ET SEQ., or state statutes of similar import.
1.106 PARENT GUARANTY: That certain Amended and Restated
Secured Parent Guaranty, dated as of May 21, 1998, by NEHC in favor of the Agent
and the Secured Lenders.
1.107 PARTY IN INTEREST MATRIX: Defined in Section 17.7 of the
Plan.
1.108 PERSON: An individual.
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1.109 PETITION DATE: January 31, 2000 and February 1, 2000,
the dates on which AFD and the other Debtors, respectively, filed their
voluntary petitions for relief under chapter 11 of the Bankruptcy Code
commencing the Chapter 11 Cases.
1.110 PLAN: The Debtors' Third Amended Joint Liquidating Plan
of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code, including,
without limitation, any exhibits and schedules hereto and the Plan Supplement,
either in its present form or as the same may be amended, modified or
supplemented from time to time in accordance with the terms and provisions
hereof.
1.111 PLAN ADMINISTRATOR: The Person to be designated by the
Debtors and retained, as of the Effective Date, by the Post-Confirmation Estate
as set forth in the Post-Confirmation Estate Agreement, with the approval of the
Bankruptcy Court, as the employee or fiduciary responsible for, among other
things, the matters described in Article XIX hereof.
1.112 PLAN SUPPLEMENT: A separate volume, to be filed with the
Clerk of the Bankruptcy Court, containing, among other things, the
Post-Confirmation Estate Agreement, the Party in Interest Matrix, the
Pre-Effective Date budget and the Post-Effective Date Administrative Expense
Budget. The Plan Supplement (containing drafts or final versions of the
foregoing documents) shall be filed with the Clerk of the Bankruptcy Court as
early as practicable (but in no event later than ten (10) days) prior to the
commencement of the hearing to consider confirmation of the Plan, or on such
other date as the Bankruptcy Court may establish.
1.113 POC: The Post-Confirmation Estate Oversight Committee,
created pursuant to the terms of the Post-Confirmation Estate Agreement.
1.114 POST-CONFIRMATION ADMINISTRATIVE EXPENSE ADVANCES: Cash
advanced or contributed by Tricon to the Debtors or the Post-Confirmation Estate
subsequent to the Effective Date to fund administrative expenses of the Debtors,
the Post Confirmation Estate or the Plan Administrator that are not directly
related to recoveries on the Encumbered Residual Assets and that are in addition
to amounts to be funded by Tricon in accordance with the Post-Effective Date
Administrative Expense Budget.
1.115 POST-EFFECTIVE DATE ADMINISTRATIVE EXPENSE BUDGET: The
budget for wind-down expenses (exclusive of the $5 million litigation fund)
projected to be incurred by the Post-Confirmation Estate, which budget shall be
agreed upon by the Debtors, Tricon and the Creditors' Committee and annexed as
EXHIBIT D to the Plan Supplement.
1.116 POST-CONFIRMATION ESTATE: The trust to be created on the
Effective Date in accordance with the provisions of Articles XVII and XIX of the
Plan and the Post-Confirmation Estate Agreement for the benefit of holders of
certain Allowed Claims.
1.117 POST-CONFIRMATION ESTATE AGREEMENT: The trust agreement,
substantially in the form attached as EXHIBIT A to the Plan Supplement, that
documents the Post-Confirmation
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Estate, describes the powers, duties and responsibilities of the Plan
Administrator and the liquidation and distribution of proceeds of the
Post-Confirmation Estate Assets.
1.118 POST-CONFIRMATION ESTATE ASSETS: All assets of all of
the Debtors' chapter 11 estates remaining after the consummation of the Sale
Transaction or the Alternative Sale Transaction.
1.119 PRIORITY NON-TAX CLAIM: Any Claim against the Debtors,
other than an Administrative Expense Claim, a Tricon Claim or a Priority Tax
Claim, entitled to priority in payment under section 507(a) of the Bankruptcy
Code, but only to the extent entitled to such priority.
1.120 PRIORITY TAX CLAIM: Any Claim against the Debtors
entitled to priority in payment under section 507(a)(8) of the Bankruptcy Code,
but only to the extent entitled to such priority.
1.121 PROFESSIONAL COMPENSATION AND REIMBURSEMENT CLAIMS: Any
Claim in the Chapter 11 Cases entitled to payment in accordance with section 330
or 331 of the Bankruptcy Code or entitled to priority in payment under section
503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code.
1.122 PRO RATA SHARE: With respect to Allowed Claims within
the same Class, the proportion that an Allowed Claim bears to the sum of (a) all
Allowed Claims within such Class and (b) all Disputed Claim Amounts within such
Class.
1.123 PROSOURCE MEXICO: ProSource Mexico Holdings, Inc., a
Delaware corporation.
1.124 PROSOURCE MEXICO INTEREST: An Interest in ProSource
Mexico.
1.125 PSC SERVICES: PSC Services of Florida, a Delaware
corporation.
1.126 PSC SERVICES INTEREST: An Interest in PSC Services.
1.127 PSD TRANSPORTATION: PSD Transportation Services, Inc., a
Nevada corporation.
1.128 PSD TRANSPORTATION INTEREST: An Interest in PSD
Transportation.
1.129 RECLAMATION CLAIM: Any unpaid Claim arising out of a
vendor sale and delivery of goods to the Debtors prior to the Petition Date and
in the ordinary course of such vendor's business, as to which goods the vendors
demanded in writing reclamation within 10 days after receipt of such goods by
Debtors (or, if such 10-day period expired after the Petition Date, before 20
days after the receipt of such goods by the Debtors), and, at the time
reclamation was demanded, the Debtors had such goods in their possession with
respect to which the vendor
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would have been entitled to relief under section 546(c) of the Bankruptcy Code
if the Debtors had been insolvent at the time of delivery of such goods;
provided however, that the treatment of Reclamation Claims in the Plan shall not
be deemed an admission of the insolvency of the Debtors or evidence thereof.
1.130 RECLAMATION COMMITTEE DESIGNEE: The member of the POC
designated by the ad hoc committee of reclamation claimants and such designee's
successor appointed pursuant to the Post-Confirmation Estate Agreement.
1.131 RECORD DATE: October 20, 2000, which is the date to be
established by the Bankruptcy Court in the Confirmation Order for the purpose of
determining those holders of Allowed Claims that can receive distributions
pursuant to the Plan.
1.132 SALE TRANSACTION: The sale of certain of the Debtors'
property rights pursuant to the McLane Purchase Agreement which sale shall be
consummated on or prior to the Effective Date.
1.133 Satisfaction Event: The occurrence of both (i) the
distribution to Tricon of Cash, other than proceeds of Encumbered Residual
Assets, in an amount equal to the sum of (a) Two Hundred Twenty Million Dollars
($220,000,000), (b) the aggregate amounts advanced by Tricon to fund priority
claim reserves in excess of the Base Reserve Amount, (c) amounts advanced by
Tricon to fund Post-Confirmation Administrative Expense Advances and (d) that
part of the Five Million Dollar ($5,000,000) litigation expense advance actually
funded by Tricon, and (ii) the termination of any commitment by Tricon to extend
further advances to the Debtors, the Plan Administrator or the Post-Confirmation
Estate.
1.134 SCHEDULES: The respective schedules of assets and
liabilities, the list of Interests, and the statements of financial affairs
filed by the Debtors in accordance with section 521 of the Bankruptcy Code and
the Official Bankruptcy Forms of the Bankruptcy Rules as such schedules and
statements have been or may be supplemented or amended.
1.135 SECURED CLAIM: A Claim against the Debtors, other than a
Secured Lender Claim, that is secured by a Lien on Collateral or that is subject
to setoff under section 553 of the Bankruptcy Code, to the extent of the value
of the Collateral or to the extent of the amount subject to setoff, as
applicable, as determined in accordance with section 506(a) of the Bankruptcy
Code.
1.136 SECURED LENDER CAUSES OF ACTION: Claims, counterclaims,
rights, defenses and remedies (whether now existing or hereafter arising and
whether at law or in equity) against Bank of America Securities L.L.C. and/or
any one or more of the Tranche B Lender and the Senior Secured Noteholders
(including, without limitation, each of Bank of America Securities L.L.C.'s and
each of the Tranche B Lenders' and each Senior Secured Noteholder's predecessors
in interest, successors in interest and assigns), including, without limitation,
the following: (a) all Bankruptcy Causes of Action; (b) the actions of Bank of
America Securities L.L.C. (and its
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affiliates) in its capacity as underwriter of any of the Debtors' securities;
and (c) the actions of DLJ in any matters involving, affecting or influencing
the Debtors.
1.137 SECURED LENDER CLAIMS: Any Claims of the Secured
Lenders, the Agent or the Senior Secured Indenture Trustee arising from or
related to (i) the Credit Agreement, including, without limitation, fees and
expenses associated with rights and remedies thereunder, (ii) the Parent
Guaranty and (iii) the Subsidiary Guaranty.
1.138 SECURED LENDERS: The Tranche A Lenders, the Tranche B
Lender, Finco and the Senior Secured Noteholders and each of their successors
and assigns.
1.139 SENIOR AFD INDENTURE: That certain indenture, dated as
of October 15, 1997, between AFD, the Subsidiary Guarantors and the Senior AFD
Indenture Trustee, as may have been supplemented from time to time.
1.140 SENIOR AFD INDENTURE TRUSTEE: U.S. Bank National
Association, successor to State Street Bank and Trust Company.
1.141 SENIOR SECURED INDENTURE: That certain indenture, dated
as of October 1, 1999, between Finco, AmeriServe Capital, NEDI and the Senior
Secured Indenture Trustee, as may have been supplemented from time to time.
1.142 SENIOR SECURED INDENTURE TRUSTEE: United States Trust
Company of New York.
1.143 SENIOR SECURED LOAN: The loan made by Finco to AFD in
the amount of Two Hundred Million Two Hundred Ninety Seven Thousand Three
Hundred Dollars ($200,297,300) under the Credit Agreement.
1.144 SENIOR SECURED NOTEHOLDERS: The holders of the Senior
Secured Notes.
1.145 SENIOR SECURED NOTEHOLDER CLAIMS: The Secured Lender
Claims of the Senior Secured Noteholders, the Senior Secured Indenture Trustee
and the Agent in its capacity as agent for Finco and the Senior Secured
Indenture Trustee, as successor to Finco's rights under the Credit Agreement.
1.146 SENIOR SECURED NOTEHOLDER PROCEEDS: The distribution(s)
from the Post-Confirmation Estate to holders of Allowed Senior Secured
Noteholder Claims.
1.147 SENIOR SECURED NOTES: The 12% senior secured notes
issued by Finco and AmeriServe Capital in the amount of Two Hundred Five Million
Dollars ($205,000,000) due September 15, 2006 pursuant to the terms of the
Senior Secured Indenture and guaranteed by NEDI.
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1.148 SUBORDINATED AFD INDENTURE: That certain indenture,
dated as of July 11, 1997, between AFD, the Subsidiary Guarantors, and the
Subordinated AFD Indenture Trustee, as may have been supplemented from time to
time.
1.149 SUBORDINATED AFD INDENTURE TRUSTEE: State Street Bank
and Trust Company.
1.150 SUBORDINATED NEHC INDENTURE: That certain indenture,
dated as of July 11, 1997, between NEHC and the Subordinated NEHC Indenture
Trustee as may have been supplemented from time to time.
1.151 SUBORDINATED NEHC INDENTURE TRUSTEE: HSBC Bank USA,
successor to State Street Bank and Trust Company.
1.152 SUBSIDIARY GUARANTY: That certain Second Amended and
Restated Secured Guaranty Agreement, dated as of May 21, 1998, by CCC, Delta
Transportation, NTSI, PSC Services, PSD Transportation, ATI and ASNSC in favor
of the Agent and the Secured Lenders.
1.153 TARGET PACA AMOUNT: The amount in excess of the PACA
Claims asserted but not satisfied as of the Effective Date.
1.154 10 1/8% SENIOR SUBORDINATED NOTES: Those certain senior
unsecured subordinated notes due July 15, 2007 issued by AFD in the original
aggregate principal amount of Five Hundred Million Dollars ($500,000,000) in
accordance with the terms and conditions of the Subordinated AFD Indenture.
1.155 13% JUNIOR SUBORDINATED NOTES: Those certain junior
subordinated notes due December 15, 2008 issued by AFD to Holberg in the amount
of Fifteen Million Dollars ($15,000,000).
1.156 13 1/4% SENIOR UNSECURED NOTES: Those certain senior
unsecured notes due December 8, 2000 issued by AFD to Tricon in the amount of
Fifteen Million Dollars ($15,000,000).
1.157 TRANCHE A LENDER CLAIMS: The Secured Lender Claims of
the Agent, in its capacity as agent for the Tranche A Lenders, and the Tranche A
Lenders.
1.158 TRANCHE A LENDERS: The banks or financial institutions
that are parties to the Credit Agreement and identified therein as "Tranche A
Revolving Lenders", including the Agent in its capacity as a "Tranche A
Revolving Lender", under the Credit Agreement and each of their successors and
assigns.
1.159 TRANCHE B INTEREST: Defined in Section 10.1 of the Plan.
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1.160 TRANCHE B LENDER: Food Distribution Funding, Inc. and
its successors and assigns.
1.161 TRANCHE B LENDER CLAIMS: The Secured Lender Claims of
the Agent, in its capacity as agent for the Tranche B Lender, and the Tranche B
Lender.
1.162 TRANCHE B RECOVERY: Any recovery or consideration from
the Tranche B Lenders or on account of the Tranche B Claims for any claims held
by the Senior Secured Noteholders (i.e., any claim held by any single Senior
Secured Noteholders or claims by many or all of the Senior Secured Noteholders
as members of one or more classes) except as Tricon may otherwise agree.
1.163 TRANCHE B RESERVE: Defined in Section 10.1 of the Plan.
1.164 TRICON: Collectively, Tricon Global Restaurants, Inc.
and its affiliates as of the Petition Date.
1.165 TRICON CLAIMS: All Claims of Tricon which Tricon assets
are entitled to treatment other than as an Unsecured Claim, including the
following: (i) the DIP Facility Claim, (ii) the Tricon Reimbursement Claim,
(iii) the Collateral Support Reimbursement Obligations, (iv) the Excess
Transition Costs (if any) and (v) the Post-Confirmation Administrative Expense
Advances.
1.166 TRICON DESIGNEE: The member of the POC designated by
Tricon and such designee's successor appointed pursuant to the Post-Confirmation
Estate Agreement.
1.167 TRICON FUNDING: Defined in Section 17.2(b) of the Plan.
1.168 TRICON PARTIES: Tricon Global Restaurants, Inc., Pizza
Hut, Inc., Taco Bell Corp., Kentucky Fried Chicken Corporation and Kentucky
Fried Chicken of California, Inc. (n/k/a Kentucky Fried Chicken of Southern
California, Inc.).
1.169 TRICON PREPETITION RECEIVABLE: The prepetition accounts
receivable owed by Tricon (subject to asserted defenses) to the Debtors in the
approximate amount of One Hundred One Million Dollars ($101,000,000).
1.170 TRICON REIMBURSEMENT CLAIM: The Debtors' obligation to
reimburse Tricon for proceeds of Tricon-owned postpetition receivables that were
paid to parties other than Tricon.
1.171 12 3/8% SENIOR DISCOUNT NOTES: Those certain senior
unsecured discount notes due July 15, 2007, issued by NEHC in the original
aggregate principal amount of One Hundred Million Three Hundred Eighty Seven
Thousand Dollars ($100,387,000) in accordance with the terms and conditions of
the Subordinated NEHC Indenture.
16
<PAGE>
1.172 UNSECURED CLAIM: Any Claim against any of the Debtors
(including, without limitation, any Reclamation Claim and any Claim relating to
the Unsecured Notes, the Senior AFD Indenture, the Subordinated AFD Indenture
and the NEHC Indenture), other than an Administrative Expense Claim, a PACA
Claim, a Priority Non-Tax Claim, a Priority Tax Claim, a Secured Claim, a
Secured Lender Claim (including Tranche A Lender Claims, Tranche B Lender Claims
and Senior Secured Noteholder Claims) or a Tricon Claim.
1.173 UNSECURED NOTES: Collectively, the 8 7/8% Senior
Unsecured Notes, the 15% Senior Convertible Notes, the 10 1/8% Senior
Subordinated Notes, the 13% Junior Subordinated Notes, and the 13 1/4% Senior
Unsecured Notes.
1.174 VANTIX LOGISTICS: Vantix Logistics, Ltd., a Texas
limited partnership.
1.175 VANTIX LOGISTICS INTEREST: An Interest in Vantix
Logistics.
1.176 OTHER DEFINITIONS: Unless the context otherwise
requires, any capitalized term used and not defined herein or elsewhere in the
Plan but that is defined in the Bankruptcy Code shall have the meaning assigned
to that term in the Bankruptcy Code. Unless otherwise specified, all section,
schedule or exhibit references in the Plan are to the respective section in,
article of, or schedule or exhibit to, the Plan, as the same may be amended,
waived, or modified from time to time. The words "herein," "hereof," "hereto,"
"hereunder," and other words of similar import refer to the Plan as a whole and
not to any particular section, subsection, or clause contained in the Plan.
ARTICLE II
COMPROMISE AND SETTLEMENT OF DISPUTES;
ASSUMPTION OF OBLIGATIONS UNDER THE PLAN
2.1 COMPROMISE AND SETTLEMENT: The Plan incorporates
proposed compromises and settlements (i) among the Debtors, Tricon and the
Senior Secured Noteholders and (ii) among the Debtors, Tricon and holders of
Unsecured Claims, including holders of Reclamation Claims, which are an integral
part of the Plan. The treatment of Claims in Classes 4, 5, 6, 7, 8 and 9 reflect
these compromises and settlements, which, upon the Effective Date, shall be
binding upon the Debtors, all Creditors, and all Entities receiving any payments
or other distributions under the Plan. The compromises and settlements are more
fully described in the Disclosure Statement.
17
<PAGE>
ARTICLE III
SUBSTANTIVE CONSOLIDATION OF DEBTORS;
CANCELLATION OF INTERCOMPANY CLAIMS
3.1 SUBSTANTIVE CONSOLIDATION: On the Effective Date, the
Chapter 11 Cases (other than the Chapter 11 Case of NEHC) shall be deemed to be
substantively consolidated for all purposes of the Plan. The assets and
liabilities of the Debtors (other than NEHC) shall be pooled and all Claims
shall be satisfied from the assets of a single consolidated estate. Any Claims
against one or more of the Debtors based upon a guaranty, indemnity,
co-signature, surety or otherwise, of Claims against another Debtor, including,
without limitation, the Parent Guaranty and the Subsidiary Guaranty, shall be
treated as a single Claim against the consolidated estates of the Debtors and
shall be entitled to distributions under the Plan only with respect to such
single Claim.
3.2 CANCELLATION OF INTERCOMPANY CLAIMS: On the Effective
Date, all Intercompany Claims shall be extinguished.
ARTICLE IV
PROVISIONS FOR PAYMENT OF ADMINISTRATIVE EXPENSE
CLAIMS AND PRIORITY TAX CLAIMS
4.1 ADMINISTRATIVE EXPENSE CLAIMS: On the later to occur of
(a) the Effective Date and (b) the date on which such Claim shall become an
Allowed Claim, the Debtors or the Post-Confirmation Estate, as applicable, shall
(i) pay to each holder of an Allowed Administrative Expense Claim, in Cash, the
full amount of such Allowed Administrative Expense Claim, or (ii) satisfy and
discharge such Allowed Administrative Expense Claim in accordance with such
other terms as may be agreed upon by and between the holder thereof and the
Debtors or the Post-Confirmation Estate, as the case may be. On the Effective
Date, there shall be escrowed all estimated amounts relating to the Professional
Compensation and Reimbursement Claims (including all potential success fees)
accrued and unpaid through the Confirmation Date pending entry of a Final Order
on each such professional's fee applications in addition to any other success
fees or change of control fees owing by the Debtors.
4.2 PAYMENT OF PRIORITY TAX CLAIMS: On the Effective Date,
each holder of an Allowed Priority Tax Claim shall be entitled to receive
distributions in an amount equal to the full amount of such Allowed Priority Tax
Claim. At the sole option and discretion of the Debtors or the Post-Confirmation
Estate, such payment shall be made (a) in full, in Cash, on the Effective Date,
(b) in accordance with section 1129(a)(9)(C) of the Bankruptcy Code, in full, in
Cash, in up to twenty-four (24) equal quarterly installments, commencing on the
first (1st) Business Day following the date of assessment of such Allowed
Priority Tax Claim, together with interest accrued thereon at a rate to be
determined by the Bankruptcy Court, or (c) by mutual agreement of the holder of
such Allowed Priority Tax Claim and the Debtors or the Post-Confirmation Estate.
18
<PAGE>
ARTICLE V
CLASSIFICATION OF CLAIMS AND INTERESTS
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------
CLASS CLAIM STATUS VOTING RIGHTS
----- ----- ------ -------------
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 PACA Claims Unimpaired Not entitled to vote
---------------------------------------------------------------------------------------------------------------
2 Priority Non-Tax Claims Unimpaired Not entitled to vote
---------------------------------------------------------------------------------------------------------------
3 Secured Claims Unimpaired Not entitled to vote
---------------------------------------------------------------------------------------------------------------
4 Tranche A Lender Claims Impaired Entitled to vote
---------------------------------------------------------------------------------------------------------------
5 Tranche B Lender Claims Unimpaired Not entitled to vote
---------------------------------------------------------------------------------------------------------------
6 Senior Secured Noteholder Claims Impaired Entitled to vote
---------------------------------------------------------------------------------------------------------------
7 Tricon Claims Impaired Entitled to vote
---------------------------------------------------------------------------------------------------------------
8 General Unsecured Claims
---------------------------------------------------------------------------------------------------------------
8A Claims Arising Under Senior AFD Indenture Impaired Entitled to vote
---------------------------------------------------------------------------------------------------------------
8B Claims Arising Under Subordinated AFD Impaired Entitled to vote
Indenture
---------------------------------------------------------------------------------------------------------------
8C General Unsecured Claims of Senior Secured Impaired Entitled to vote
Noteholders
---------------------------------------------------------------------------------------------------------------
8D All Other General Unsecured Claims Impaired Entitled to vote
---------------------------------------------------------------------------------------------------------------
9 Reclamation Claims Impaired Entitled to vote
---------------------------------------------------------------------------------------------------------------
10 NEHC Claims Impaired Entitled to vote
---------------------------------------------------------------------------------------------------------------
11 Equity Interests Impaired Not entitled to vote
---------------------------------------------------------------------------------------------------------------
</TABLE>
ARTICLE VI
PROVISIONS FOR TREATMENT OF PACA CLAIMS (CLASS 1)
6.1 PAYMENT OF ALLOWED PACA CLAIMS: Each holder of an
Allowed PACA Claim shall be paid the full amount of its Allowed PACA Claim in
Cash from the PACA Account as soon as practicable following the later of (a) the
Effective Date, (b) the date each PACA Claim becomes an Allowed PACA Claim and
(c) such other date as may be agreed upon by the Debtors or the
Post-Confirmation Estate and the holder of the Allowed PACA Claim. Such payment
is in full satisfaction of all claims of PACA Claimants, including Claims
assertable against the Debtors and any claims assertable against non-Debtors.
19
<PAGE>
ARTICLE VII
PROVISION FOR TREATMENT OF PRIORITY NON-TAX
CLAIMS (CLASS 2)
7.1 PAYMENT OF ALLOWED PRIORITY NON-TAX CLAIMS: Unless
otherwise mutually agreed upon by the holder of an Allowed Priority Non-Tax
Claim and the Debtors or the Post-Confirmation Estate, each holder of an Allowed
Priority Non-Tax Claim shall be paid in full, in Cash, in an amount equal to
such Allowed Priority Non-Tax Claim on the later of the Effective Date and the
date such Allowed Priority Non-Tax Claim becomes an Allowed Priority Non-Tax
Claim, or as soon thereafter as is practicable. The Tricon Claims will be
treated in accordance with Article XII of the Plan.
ARTICLE VIII
PROVISION FOR TREATMENT OF SECURED
CLAIMS (CLASS 3)
8.1 TREATMENT OF SECURED CLAIMS: On the Effective Date, or
as soon thereafter as is practicable, each holder of an Allowed Secured Claim
shall receive one of the following distributions: (a) the payment of such
holder's Allowed Secured Claim in full, in Cash; (b) the sale or disposition
proceeds of the property securing any Allowed Secured Claim to the extent of the
value of their respective interests in such property; (c) the surrender to the
holder or holders of any Allowed Secured Claim of the property securing such
Claim; or (d) such other distributions as shall be necessary to satisfy the
requirements of chapter 11 of the Bankruptcy Code. The manner and treatment of
each Allowed Secured Claim shall be determined by the Debtors, in their sole and
absolute discretion, on or before the Confirmation Date, and upon notice to each
Creditor holding a Secured Claim.
ARTICLE IX
PROVISION FOR TREATMENT OF TRANCHE A LENDER
CLAIMS (CLASS 4)
9.1 ALLOWANCE OF TRANCHE A LENDER CLAIMS: The Tranche A
Lender Claims shall be deemed allowed in the amount of (y) the sum of (i) One
Hundred Twenty Two Million Four Hundred Thousand Dollars ($122,400,000), (ii)
all reasonable fees, costs and expenses incurred by the Tranche A Lenders as
agreed to by the Tranche A Lenders and the Post-Confirmation Estate or the
Debtors (or, if no such agreement is reached, then as determined by the
Bankruptcy Court) and (iii) accrued interest on the unpaid principal balance
owed to the Tranche A Lenders at the non-default contract rate relating to the
period up to but not including the Effective Date (it being understood that the
Debtors (and, therefore, the Post-Confirmation Estate) reserve their right to
contest the allocation to interest, fees and/or principal made by the Tranche A
Lenders) minus (z) all amounts paid to the Agent and the Tranche A Lenders on or
after the Petition Date on account of their Claims. Notwithstanding the
allowance provided above, the Debtors (and, therefore, the Post-Confirmation
Estate) expressly reserve any and all Secured Lender Causes of Action against,
among others, Bank of America Securities L.L.C.
20
<PAGE>
9.2 TREATMENT OF ALLOWED TRANCHE A LENDER CLAIMS: On the
Effective Date, each holder of an Allowed Tranche A Lender Claim shall receive
the payment of such holder's Pro Rata Share of Cash in an amount equal to the
Allowed Tranche A Lender Claims; PROVIDED, HOWEVER, that on the Effective Date,
the Debtors shall deposit Cash into a reserve account (the "Tranche A Reserve")
in an amount equal to the unpaid professional fees asserted by the Tranche A
Lenders pending the allowance of such fee claims pursuant to section 506 of the
Bankruptcy Code. The distributions to the Tranche A Lenders on the Effective
Date and the funding of the Tranche A Reserve shall constitute a full
satisfaction of any Claims held by the Tranche A Lenders, and shall fully
satisfy any Claims assertable by the Tranche A Lenders (or the Agent acting on
behalf of the Tranche A Lenders) in respect of the Collateral Support
Reimbursement Obligations or the Tricon Prepetition Receivable.
ARTICLE X
PROVISION FOR TREATMENT OF TRANCHE B LENDER
CLAIMS (CLASS 5)
10.1 TREATMENT OF TRANCHE B LENDER CLAIMS: On the Effective
Date, the Debtors shall deposit Cash into a reserve account (the "Tranche B
Reserve") for the benefit of the Tranche B Lenders in an amount equal to One
Hundred Million Dollars ($100,000,000) plus unpaid interest at the default
contract rate relating to the period up to but not including the Effective Date
(the "Tranche B Interest"). The Tranche B Lender Claims shall be paid from the
Tranche B Reserve when and to the extent such Claims become Allowed Tranche B
Lender Claims by Final Order of the Bankruptcy Court. The funding of the Tranche
B Reserve shall constitute a full satisfaction of any Claims held by the Tranche
B Lenders, and shall fully satisfy any Claim assertable by the Tranche B Lenders
(or the Agent acting on behalf of the Tranche B Lenders) in respect of the
Collateral Support Reimbursement Obligations or the Tricon Prepetition
Receivable. The Debtors (and, therefore, the Post-Confirmation Estate) expressly
reserve any and all Secured Lender Causes of Action as they may pertain to the
Tranche B Lender. In the event that all or a portion of the Tranche B Lender
Claims are disallowed or subordinated to other rights of other Creditors, the
portion of the Tranche B Reserve proceeds that are so disallowed or subordinated
will be distributed in accordance with the Final Order disallowing or
subordinating such Claims.
ARTICLE XI
PROVISION FOR TREATMENT OF
SENIOR SECURED NOTEHOLDER CLAIMS (CLASS 6)
11.1 ALLOWANCE OF SENIOR SECURED NOTEHOLDER CLAIMS: The
Senior Secured Noteholder Claims shall be deemed allowed in the amount of the
sum of (i) Two Hundred Million Two Hundred Ninety Seven Thousand Three Hundred
Dollars ($200,297,300), and (ii) accrued and unpaid interest at the nondefault
contract rate of 12% per annum relating to the period up to but not including
the Petition Date.
21
<PAGE>
11.2 TREATMENT OF SENIOR SECURED NOTEHOLDER CLAIMS: On the
Effective Date, the Debtors will distribute (a) to the Senior Secured Indenture
Trustee, Cash in an amount equal to 32.5% of the face amount (i.e. $205 million)
of the Senior Secured Noteholder Claims MINUS the sum of (i) 50% of the Tranche
B Interest (such percentage, the "Noteholder Proportion"), and (ii) the Ad Hoc
Senior Secured Noteholder Committee Professional Fees, and (b) to the Ad Hoc
Senior Secured Noteholder Committee Professionals, the Ad Hoc Senior Secured
Noteholder Committee Professional Fees.
The Senior Secured Indenture Trustee shall distribute to the
Senior Secured Noteholders their Pro Rata Share after making all necessary
adjustments for payments previously paid by members of the Ad Hoc Senior Secured
Noteholder Committee to the Ad Hoc Senior Secured Noteholder Committee
Professionals. Subsequent to the Effective Date, but no less than every ninety
(90) days following the Effective Date, the amount of Cash in the PACA Account
equal to the amount of all PACA Claims that are disallowed or reduced by order
of the Bankruptcy Court during such ninety (90) day period shall be distributed
as follows: First, to Tricon until Tricon has been repaid an amount that is
equal to the difference between (i) the amounts on deposit in or deposited into
the PACA Account on the Effective Date plus the aggregate distributions made to
PACA Claimants prior to the Effective Date minus (ii) $55 million; and second,
to the Senior Secured Indenture Trustee for the benefit of (and for pro rata
distribution to) the Senior Secured Noteholders (net of the amount of any
outstanding Ad Hoc Senior Secured Noteholder Committee Professional Fees which
amount shall first be paid to such professionals). In no event shall the Senior
Secured Noteholders have any obligation to fund the PACA Claims.
In addition, the Noteholder Proportion shall be refunded to
the Senior Secured Noteholders on the following terms: (i) if and to the extent
that the Tranche B Lender Claims relating to Tranche B Interest are disallowed
by a Final Order, the Senior Secured Noteholders shall be entitled to receive
the Noteholder Proportion; (ii) if Tranche B Lender Claims as to Tranche B
Interest are allowed and (x) there is no Tranche B Recovery, then no later than
five (5) days following the entry of a Final Order determining claims relating
to the Tranche B Recovery, the Senior Secured Noteholders shall receive a refund
from Tricon in an amount equal to the Noteholder Proportion; (y) if there is a
Tranche B Recovery and it is equal to or greater than the Noteholder Proportion,
then the Senior Secured Noteholders shall not be entitled to any refund of the
Noteholder Proportion; and (z) if there is a Tranche B Recovery and it is less
than the Noteholder Proportion, then no later than five (5) days following the
entry of a Final Order determining claims relating to the Tranche B Recovery,
the Senior Secured Noteholders shall receive a refund of the difference between
such Tranche B Recovery and the remaining Noteholder Proportion. Any refund of
the Noteholder Proportion shall be paid to the Senior Secured Indenture Trustee
for pro rata distribution to the Senior Secured Noteholders, except that, in
calculating a Senior Secured Noteholder's Pro Rata Share of such refund, the
Senior Secured Indenture Trustee shall reduce a Senior Secured Noteholder's
share by the amount of any Tranche B Recovery. For purposes of the foregoing,
any subordination of the Tranche B Lender Claims to the Senior Secured Notes
shall be a Tranche B Recovery of the Noteholder Proportion to the extent of such
subordination if so ordered by a Final Order and, to the extent that the Senior
Secured Noteholders become entitled to a portion (or all) of the Tranche B
Interest as a
22
<PAGE>
consequence of the subordination (whether partial or whole) of the Tranche B
Lender Claims to the Senior Secured Notes, the Senior Secured Noteholders shall
waive such Tranche B Interest. The Senior Secured Noteholders will accept the
distributions to the Senior Secured Noteholders or for their benefit, as
described herein (the "Noteholder Distribution"), in full satisfaction of any
claims assertable by the Senior Secured Noteholders (or the Agent acting on
behalf of the Senior Secured Noteholders) in respect of the Collateral Support
Obligations or the Tricon Prepetition Receivable.
After giving effect to the Noteholder Distribution, the Senior
Secured Notes shall be allowed as secured claims to the extent of the value of
any remaining Collateral (if any) and as General Unsecured Claims to the extent
of any deficiency in an amount equal to the difference between the unpaid
principal amount of plus accrued and unpaid interest on Claims on the Petition
Date and the sum of the payments equaling the Noteholder Distribution; provided,
however, that nothing in the Plan shall in any way limit or impair the Senior
Secured Noteholders' rights (if any) to recover the funds reserved for the
Tranche B Lenders if and to the extent the Senior Secured Noteholders succeed in
equitably subordinating the Tranche B Lender Claims only to the Senior Secured
Notes and shall not impair the Senior Secured Noteholders' rights (if any) to
recover amounts payable to the Tranche B Lenders in the event that the Tranche B
Lender Claims are equitably subordinated to the Senior Secured Noteholder Claims
and not to any other Creditors.
Subject to any superior liens to the extent not satisfied in
full pursuant to the Plan, the liens securing the Senior Secured Notes will
attach to the proceeds to be distributed to or reserved for the PACA Claims and
the Secured Lenders under the Plan to the extent of the allowed secured claim of
the Senior Secured Noteholders, without prejudice to any party's rights to
challenge the amount of such secured claim.
ARTICLE XII
PROVISION FOR TREATMENT OF TRICON
CLAIMS (CLASS 7)
12.1 ALLOWANCE OF TRICON CLAIMS: The Tricon Claims shall be
allowed as first priority claims in the amount of Two Hundred Twenty Million
Dollars ($220,000,000) and shall be paid in the manner specified in Section 12.3
below. In addition, Tricon shall be entitled to receive the non-recourse
recoveries specified in Section 12.2 below, which non-recourse recoveries will
not reduce Tricon's $220 million priority claim.
12.2 NON-RECOURSE RECOVERIES: Tricon shall be entitled to
receive (i) all funds (if any) remaining in the Tranche A Reserve after a Final
Order is entered in respect of the Tranche A Lender Claims, (ii) fifty percent
(50%) of that portion (if any) of the Tranche B Interest that is disallowed by
Final Order, (iii) funds, if any, remaining in the PACA Account after the
satisfaction in full of all allowed PACA Claims equal in amount to the amounts
funded into the PACA Account on the Effective Date in excess of the Target PACA
Amount, (iv) all funds reserved for Administrative Expense Claims, Priority Tax
Claims and Priority Non-Tax
23
<PAGE>
Claims, in each case to the extent any such Claims are disallowed by Final
Order, and (v) all Cash and other recoveries (net of recovery costs) in respect
of Encumbered Residual Assets realized by the Post-Confirmation Estate or
Tricon.
12.3 PROCEEDS OF POST-CONFIRMATION ESTATE ASSETS: Net
recoveries realized by the Post-Confirmation Estate resulting from the
liquidation of the Post-Confirmation Estate Assets (other than Encumbered
Residual Assets) shall be distributed as follows: First, to Tricon until Tricon
has been reimbursed for all Post-Confirmation Administrative Expense Advances
and litigation expenses advances extended by Tricon. Second, to Tricon until
Tricon has been reimbursed for all priority claim reserves funded by Tricon in
excess of the Base Reserve Amount, but only to the extent that such excess
priority claims are allowed. Third, to a reserve maintained by the Plan
Administrator, in accordance with the terms of the Post-Confirmation Estate
Agreement, to fund prospective Post-Confirmation Administrative Expense
Advances. And fourth, all remaining net recoveries shall be shared between
Tricon and holders of Allowed General Unsecured Claims according to the
following chart until such time as Tricon has received, in addition to the
reimbursements prescribed above and the non-recourse recoveries specified in
Section 12.2 above, $220 million:
24
<PAGE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
PERCENTAGE SPLIT ON NET RECOVERIES BETWEEN
ALLOWED TRICON CLAIMS AND
ALLOWED GENERAL UNSECURED CLAIMS
--------------------------------------------------------------------------------
NET RECOVERY AMOUNT ALLOWED TRICON CLAIMS ALLOWED GENERAL UNSECURED CLAIMS
--------------------------------------------------------------------------------
<S> <C> <C>
Up to $50 million 80% 20%
--------------------------------------------------------------------------------
Next $50 million 70% 30%
--------------------------------------------------------------------------------
Next $50 million 60% 40%
--------------------------------------------------------------------------------
Next $50 million 60% 40%
--------------------------------------------------------------------------------
Next $50 million 50% 50%
--------------------------------------------------------------------------------
Next $50 million 40% 60%
--------------------------------------------------------------------------------
Next $50 million 40% 60%
--------------------------------------------------------------------------------
Next $50 million 40% 60%
--------------------------------------------------------------------------------
Additional Net Recoveries 0% All Additional Net Recoveries
--------------------------------------------------------------------------------
</TABLE>
ARTICLE XIII
PROVISIONS FOR CLASSIFICATION AND TREATMENT
OF GENERAL UNSECURED CLAIMS (CLASS 8)
13.1 CLASSIFICATION OF GENERAL UNSECURED CLAIMS: General
Unsecured Claims are divided into four separate subclasses - subclasses 8A, 8B,
8C and 8D - each of which is treated identically in the Plan. Subclass 8A
consists of Claims arising under the Senior AFD Indenture. Subclass 8B consists
of Claims arising under the Subordinated AFD Indenture. Subclass 8C consists of
General Unsecured Claims of the Senior Secured Noteholders. Subclass 8D consists
of all other General Unsecured Claims.
13.2 TREATMENT OF GENERAL UNSECURED CLAIMS: Commencing on the
Effective Date, each holder of an Allowed General Unsecured Claim shall be
entitled to receive such holders' Pro Rata Share of net recoveries realized by
the Post-Confirmation Estate resulting from the liquidation of Post-Confirmation
Estate Assets (other than Encumbered Residual Assets) according to the chart in
Section 12.3 above remaining after the full satisfaction of amounts payable (a)
in connection with the administration of the Post-Confirmation Estate, (b) on
account of (or reserved on account of) Post-Confirmation Administrative Expense
Advances and (c) otherwise payable under the Post-Confirmation Estate Agreement.
Distributions to holders of subclass 8A Claims (e.g., holders
of the 8 7/8% Senior Unsecured Notes) shall be payable, first to the Senior AFD
Indenture Trustee in satisfaction of the Senior AFD Indenture Trustee's Claims
arising under the Senior AFD Indenture.
25
<PAGE>
Distributions to holders of subclass 8B Claims (e.g., the
10 1/8% Senior Subordinated Notes) shall be payable, first, to the Subordinated
AFD Indenture Trustee in satisfaction of the Subordinated AFD Indenture
Trustee's Claims arising under the Subordinated AFD Indenture. Tricon shall be
deemed to waive and release any right of recovery it may have on account of any
Unsecured Claims.
ARTICLE XIV
PROVISION FOR TREATMENT OF
RECLAMATION CLAIMS (CLASS 9)
14.1 TREATMENT OF RECLAMATION CLAIMS: Commencing on the
Effective Date, each holder of an Allowed Reclamation Claim shall be entitled to
receive distributions as if such Claimant had an Allowed General Unsecured Claim
in an amount equal to 2 1/2 times the allowed amount of such Allowed Reclamation
Claim, plus any Allowed General Unsecured Claim held by such holder. By way of
example, if a reclamation creditor has a total of claim of $1.5 million, of
which $500,000 constitutes an Allowed Reclamation Claim, and $1 million is an
Allowed General Unsecured Claim, the Allowed Reclamation Claim would be treated
as an Allowed General Unsecured Claim in the amount of $1.25 million ($500,000 x
2.5), in addition to the Allowed General Unsecured Claim of $1 million, for a
total Allowed General Unsecured Claim of $2.25 million.
Notwithstanding the foregoing, in the event that any
Reclamation Claimant (i) objects to the Plan, (ii) votes not to accept the Plan,
(iii) after November 1, 2000 (which date may be extended at the Debtors' sole
and absolute discretion) seeks treatment of such Claim in any manner
inconsistent with the settlement described herein or (iv) that has objected to
the Debtors' Motion for Further Order Establishing Procedure for Valuation of
Allowed Reclamation Claims filed on September 13, 2000 and has not withdrawn
such objection on or before November 1, 2000 (which date may be extended at the
Debtors' sole and absolute discretion), then such Reclamation Claimant shall be
entitled to receive distributions on account of the allowed portion of such
Reclamation Claim as if such holder had an Allowed General Unsecured Claim equal
to the amount of such Allowed Reclamation Claim rather than equal to 2 1/2 times
such amount.
ARTICLE XV
PROVISION FOR TREATMENT OF NEHC
CLAIMS (CLASS 10)
15.1 TREATMENT OF NEHC CLAIMS: Each holder of an Allowed NEHC
Claim (including Claims relating to the 12 3/8% Senior Discount Notes and any
other Claims arising under the Subordinated NEHC Indenture) shall receive such
holder's Pro Rata Share of Post-Confirmation Estate Assets remaining after the
full satisfaction in accordance with the terms of the Plan of (a) amounts
payable in connection with the administration of the Post-Confirmation Estate,
(b) Allowed General Unsecured Claims, and (c) Allowed Reclamation Claims.
26
<PAGE>
ARTICLE XVI
PROVISION FOR CANCELLATION OF INTERESTS IN DEBTORS (CLASS 11)
16.1 CANCELLATION OF INTERESTS: On the Effective Date, all
NEHC Interests, AFD Interests, HWPI Interests, PSD Transportation Interests, ATI
Interests, CCC Interests, ASNSC Interests, Delta Transportation Interests, PSC
Services Interests, NTSI Interests, ProSource Mexico Interests, NAVC Corp.
Interests, North American Vantix Corp. Interests and Vantix Logistics Interests
shall be deemed extinguished and the certificates and all other documents
representing such Interests shall be deemed canceled and of no force and effect.
ARTICLE XVII
PROVISIONS FOR IMPLEMENTATION OF THE PLAN
17.1 SALE OF ASSETS: The Debtors shall consummate the sale of
substantially all of the Debtors' assets that are used by the Debtors to
distribute food items, paper goods and cleaning supplies primarily to Taco Bell,
Kentucky Fried Chicken, Pizza Hut, and Long John Silver's pursuant to the terms
of the McLane Purchase Agreement in connection with the Sale Transaction or an
Alternative Sale Transaction.
17.2 FUNDING OF THE PLAN:
(1) On the Effective Date, the Debtors shall convey,
transfer, assign and deliver the assets purchased by McLane in connection with
the Sale Transaction or such offeror who submits a higher and better offer
pursuant to the terms of the Alternative Sale Transaction free and clear of all
liens and interests in exchange for the purchase price to be paid pursuant to
(i) the McLane Purchase Agreement or (ii) to the Alternative Sale Transaction.
(2) Subject to the other provisions of the Plan, on the
Effective Date Tricon will fund to the Debtors (the "Tricon Funding"), for the
benefit of the Debtors and the Creditors, Cash in an amount which, when added to
the McLane Proceeds or the purchase price pursuant to the Alternative Sale
Transaction and the Debtors' Cash on hand immediately after the closing of the
Sale Transaction or the Alternative Sale Transaction, equals the sum of the
following:
(i) the difference between (y) Fifty Five Million Five
Hundred Thousand Dollars ($55,500,000), and (z) the sum
of aggregate distributions to PACA Claimants prior to
the Effective Date and the amount of Cash in the PACA
Account on the Effective Date;
(ii) the amount in which the Tranche A Lender Claims shall be
deemed allowed in accordance with Section 9.1 of the
Plan;
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(iii) One Hundred Million Dollars ($100,000,000) in respect
of the loan made by the Tranche B Lender to the
Debtors (net of any reserves held for the Tranche B
Lender);
(iv) fifty percent (50%) of the Tranche B Interest;
(v) thirty two and one half percent (32.5%) of the face
amount (i.e., $205 million) of the Senior Secured
Notes;
(vi) if the Tranche B Recovery is less than the Noteholder
Proportion that is reserved for (or has been paid in
respect of allowed) Tranche B Interest and Tranche B
Interest has not otherwise been refunded to the
Senior Secured Noteholders, then the amount equal to
the difference between the Tranche B Recovery and the
Noteholder Proportion;
(vii) Claims that the Debtors are required to pay or
reserve for on the Effective Date (in accordance with
the pre-Effective Date budget); and
(viii) Projected expenses relating to (A) the wind down of
the Debtors' operations in accordance with the
Post-Effective Date Administrative Expense Budget and
(B) the operation of the Post-Confirmation Estate.
Tricon also shall fund Two Million Dollars
($2,000,000) for litigation expenses on the Effective
Date and, upon the request of the Plan Administrator,
fund Three Million Dollars ($3,000,000) as and when
necessary in the Plan Administrator's reasonable
discretion in accordance with Section 17.5 of the
Plan.
In consideration of the Tricon Funding, the Debtors shall,
INTER ALIA, (i) dismiss with prejudice within five (5) Business Days after the
Effective Date the lawsuit titled Case No. 00-358 (PJW); United States
Bankruptcy Court, District of Delaware; AMERISERVE FOOD DISTRIBUTION, INC.,
AMERISERVE FUNDING CORP., ET AL. V. TRICON GLOBAL RESTAURANTS, INC.; (ii) remit
proceeds of the Encumbered Residual Assets to Tricon: (iii) pay Tricon on
account of its Allowed Tricon Claims in the manner provided in Sections 12.2 and
12.3; and (iv) provide the release in favor of Tricon set forth herein.
17.3 TRICON CONTRACT ASSUMPTION: On the Effective Date,
Tricon and its franchisees constituting at least 85% of the restaurants served
by the Debtors for each of the Pizza Hut, Kentucky Fried Chicken and Taco Bell
concepts shall consent to the Debtors' assumption and assignment to McLane of
the distribution agreements of each of them, as modified by the amendments
annexed to the McLane Purchase Agreement. These assumptions and assignments will
neither diminish nor elevate the status or priority of Tricon Unsecured Claims
or those of its franchisees against the Debtors (if any) that arose prior to the
Petition Date. Other than McLane's commitment to perform its obligations under
the distribution agreements (as so amended by the transactions to be consummated
in connection with the execution of the McLane Purchase Agreement), Tricon and
Tricon franchisees hereby waive and release any
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requirement of adequate assurance of future performance under section 365 of the
Bankruptcy Code or otherwise in connection with the Sale Transaction.
17.4 ESTABLISHMENT OF THE POST-CONFIRMATION ESTATE: On the
Effective Date, the Debtors, on their own behalf and on behalf of holders of
Claims in Classes 6, 7, 8, 9 and 10 shall execute the Post-Confirmation Estate
Agreement and shall take all other steps necessary to establish the
Post-Confirmation Estate. On the Effective Date, and in accordance with and
pursuant to the terms of the Plan, the Debtors shall transfer to the
Post-Confirmation Estate all of their right, title, and interest in all of the
Post-Confirmation Estate Assets (including the purchase price paid by McLane or
such offeror whose higher and better offer is accepted by the Debtors). In
connection with the transfer of these assets, including rights and causes of
action (including Bankruptcy Causes of Action), any attorney-client privilege,
work-product privilege, or other privilege or immunity attaching to any
documents or communications (whether written or oral) transferred to the
Post-Confirmation Estate shall vest in the Post-Confirmation Estate and its
representatives, and the Debtors and the Post-Confirmation Estate are authorized
to take all necessary actions to effectuate the transfer of such privileges.
17.5 FUNDING EXPENSES OF THE POST-CONFIRMATION ESTATE: As
part of the Tricon Funding, Tricon will fund up to Five Million Dollars
($5,000,000) to the Post-Confirmation Estate in the form of a Post-Confirmation
Administrative Expense Advance for the purpose of funding costs associated with
litigating and settling Bankruptcy Causes of Action and any other causes of
action. Tricon will fund Two Million Dollars ($2,000,000) to the
Post-Confirmation Estate on the Effective Date. The remaining Three Million
Dollars ($3,000,000) will be funded by Tricon from the proceeds of the Tranche B
Reserve or, if such proceeds are not timely available, then such amount will be
funded directly by Tricon. The Debtors shall have no obligation to provide any
funding with respect to the Post-Confirmation Estate after they transfer the
Post-Confirmation Estate Assets to the Post-Confirmation Estate. As more fully
described in the Post-Confirmation Estate Agreement, any Cash in the
Post-Confirmation Estate shall be applied, first, to the fees, costs, expenses
and liabilities of the Plan Administrator, second, to satisfy any other
administrative and wind down expenses of the Post-Confirmation Estate and,
third, to reimburse Tricon for Post-Confirmation Administrative Expense
Advances; provided, however, that costs and expenses associated with the
realization of proceeds on Post-Confirmation Estate Assets (other than
Encumbered Residual Assets ) shall not be satisfied from proceeds of the
Encumbered Residual Assets.
17.6 CORPORATE ACTION: Upon the entry of the Confirmation
Order by the Bankruptcy Court, all matters provided under the Plan involving the
corporate structure of the Debtors shall be deemed authorized and approved
without any requirement of further action by the Debtors, the Debtors'
shareholders or the Debtors' boards of directors. The Debtors (and their boards
of directors) shall dissolve or otherwise terminate their existence following
the Effective Date and are authorized to dissolve or terminate the existence of
wholly-owned non-Debtor subsidiaries following the Effective Date.
17.7 PRESERVATION OF RIGHTS OF ACTION
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(1) The Debtors are currently investigating whether to pursue
potential Bankruptcy Causes of Action against other Entities. The investigation
has not been completed to date, and under the Plan, the Plan Administrator, on
behalf of the Post-Confirmation Estate, retains all rights on behalf of the
Debtors and the Post-Confirmation Estate to commence and pursue any and all
Bankruptcy Causes of Action (under any theory of law or equity, including,
without limitation, the Bankruptcy Code, and in any court or other tribunal
including, without limitation, in an adversary proceeding filed in the Chapter
11 Cases) discovered in such an investigation to the extent the Plan
Administrator, on behalf of the Post-Confirmation Estate, deems appropriate in
accordance with the terms of the Post-Confirmation Estate Agreement. Potential
Bankruptcy Causes of Action currently being investigated by the Debtors, which
may but need not (if at all), be pursued by the Debtors prior to the Effective
Date and by the Plan Administrator, on behalf of Post-Confirmation Estate, after
the Effective Date to the extent warranted, include, without limitation, the
following Bankruptcy Causes of Action set forth below:
o Any lawsuits for, or in anyway involving, the collection of
accounts receivable or any matter related thereto including,
without limitation, against those parties set forth on the list of
parties in interest filed or to be filed with the Clerk of the
Bankruptcy Court as EXHIBIT B to the Plan Supplement (the "Party
in Interest Matrix");
o The lawsuit titled Case No. 71-181-00280-00; American Arbitration
Association Commercial Arbitration; AMERISERVE FOOD DISTRIBUTION
V. KING CONN ENTERPRISES, INC., ET AL. and any other causes of
action arising out of the circumstances, events, transactions or
other facts giving rise to this claims and/or causes of action in
the above numbered adversary proceeding;
o The lawsuit titled Case No. 71-Y-181-00281-00; American
Arbitration Association Commercial Arbitration; AMERISERVE FOOD
DISTRIBUTION, INC. V. POTOMAC FOODS, INC. and any other causes of
action arising out of the circumstances, events, transactions or
other facts giving rise to this claims and/or causes of action in
the above numbered adversary proceeding;
o The lawsuit titled Case No. 71-Y-181-00282-00; American
Arbitration Association, Commercial Arbitration; AMERISERVE FOOD
DISTRIBUTION, INC. V. RON DEVINE, NOVA KING, INC., VIRGINIA FOODS,
INC. AND A/R FOODS and any other causes of action arising out of
the circumstances, events, transactions or other facts giving rise
to this claims and/or causes of action in the above numbered
adversary proceeding;
o The lawsuit titled Case No. 00-000618 (PJW); United States
Bankruptcy Court, District of Delaware; AMERISERVE FOOD
DISTRIBUTION, INC. V. JOHN HOLTEN, HOLBERG INCORPORATED, HOLBERG
INDUSTRIES INC., AND NEBCO EVANS DISTRIBUTORS, INC. and any other
causes of action arising out of the circumstances, events,
transactions or other facts giving rise to this claims and/or
causes of action in the above numbered adversary proceeding;
o The lawsuit titled Case No. 00-3601; District Court of Dallas
County, Texas, F-116th Judicial Circuit; AMERISERVE FOOD
DISTRIBUTION, INC. V. MBM CORPORATION, RICK RUTH, AND ROY DERIDDER
and any other causes of action arising out of the circumstances,
events, transactions or other facts giving rise to this claims
and/or causes of action in the above numbered adversary
proceeding;
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o The lawsuit titled AMERISERVE FOOD DISTRIBUTION, INC. V. MARMIJA,
INC., ROB-HIN, INC., HIN-ROB, INC., HINBO, INC. and any other
causes of action arising out of the circumstances, events,
transactions or other facts giving rise to this claims and/or
causes of action in the above numbered adversary proceeding;
o Potential claims for prepetition breaches of fiduciary duty,
negligent management and wasting of corporate assets and corporate
opportunity and/or arising under the Debtors' Directors and
Officers Insurance policies against the Debtors' prepetition
directors and officers, among others;
o Any and all potential claims against the prepetition members of
the Debtors' Boards of Directors and/or officers, including,
without limitation, the right to equitably subordinate claims held
by such directors and/or officers pursuant to section 510(c) of
the Bankruptcy Code;
o Any and all claims, including, but not limited to, breach of
contract and breach of fiduciary duty against DLJ in connection
with various acquisitions and debt offerings;
o Any and all fraudulent conveyance claims against PepsiCo in any
way related to the Debtors' purchase of PFS, BKC (including
without limitation against BKC franchisees), and the shareholders
of ProSource, Inc. (including without limitation from Onyx) in any
way related to the Debtors' purchase of ProSource;
o Potential claims for breach of a prepetition contract and
otherwise related to actions or inactions by the Debtors'
prepetition consultants and service providers, including, without
limitation; JD Edwards and other consultants, set forth on the
Party in Interest Matrix;
o All claims or causes of action against Holberg Incorporated,
Holberg Industries, Inc., NEDI, John Holten and any of the
foregoing entities' other shareholders arising out of the more
than $11 million of intercompany receivables now listed as being
owed by NEDI to NEHC but which prior to December 8, 1999 were
listed as receivables owed to NEHC and AFD;
o Claims arising out of, and in connection with, the prepetition
management, operation and/or reporting of financial and other
information against all persons
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and entities having any responsibility with respect thereto,
whether such claims are legal, equitable or statutory in nature;
including, without limitation, those claims listed on the Party in
Interest Matrix;
o Claims to recover amounts improperly awarded to employees under
the terms of any prepetition employment or change in control
agreement, including, without limitation, those listed on the
Party in Interest Matrix;
o All violations against third parties with respect to prepetition
violations of applicable federal or state securities laws;
o All claims or causes of action arising out of or that relate to
prepetition acquisitions or financings;
o Any and all actual or potential breach of contract claims against
BKC and its franchisees related to the amendment of the
distribution contracts with the Debtors and/or the
termination/expiration thereof;
o The collection of monies due from customers and vendors listed on
the Party in Interest Matrix;
o Any and all actual or potential breach of contract claims against
BKC, Restaurant Services, Inc. and Chick-fil-A related to, among
other things, the amendment of the distribution contracts with the
Debtors and/or the termination/expiration thereof and/or the
termination by other customers, employees and other business
relations of their relationships with the Debtors;
o Any and all actual or potential breach of contract claims against
BKC franchisees (and the owners thereof) relating to nonpayment of
accounts receivables including North Carolina Franchise Group,
North Illinois Franchise Group, Southern King Enterprises, Cimm's,
Inc., Virginia Cimm's, Inc., Hawaii Cimm's, Inc., Oahu
Restaurants, Inc., Southwest Cimm's, Inc., Lawrence P. Cimmarusti,
Amilia M. Cimmarusti, Ralph J. Cimmarusti, Hallie D. Cimmarusti
and Sydran Systems, Inc.;
o Any and all actual or potential breach of contract claims against
Brinker International, RTM, Inc., Sybra, Inc., ICH Corporation,
Main St. Mains, Inc., Carlson Restaurants Worldwide, Inc., TGI
Friday's, Inc., International Dairy Queen and/or any and all
customers who improperly exited the Debtors' system and/or have
improperly asserted or taken action through setoff; and
o Any and all potential claims or causes of action against NEDI,
Holberg, Inc., Holberg Industries, Inc., and their respective
shareholders (including but not limited to John Victor Holten)
arising out of or related to the accounts receivable balance of
approximately $11.3 million now listed as being owed by NEDI to
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NEHC, but which prior to December 8, 1999 was owed by Holberg
Industries, Inc. to NEHC and AFD.
(2) In addition, potential Bankruptcy Causes of Action which
may be pursued by the Debtors prior to the Effective Date and by the Plan
Administrator, on behalf of the Post-Confirmation Estate after the Effective
Date, also include, without limitation the following:
o Any other actual or potential Bankruptcy Causes of Action, whether
legal, equitable or statutory in nature, arising out of, or in
connection with the Debtors' businesses or operations, including,
without limitation, the following: possible claims against
vendors, landlords, sublessees, assignees, customers or suppliers
for warranty, indemnity, back charge/set-off issues, overpayment
or duplicate payment issues and collections/accounts receivable
matters; deposits or other amounts owed by any creditor, lessor,
utility, supplier, vendor, landlord, sublessee, assignee, or other
entity; employee, management or operational matters; claims
against landlords, sublessees and assignees arising from the
various leases, subleases and assignment agreements relating
thereto, including, without limitation, claims for overcharges
relating to taxes, common area maintenance and other similar
charges; financial reporting; environmental, and product liability
matters; actions against insurance carriers relating to coverage,
indemnity or other matters; counterclaims and defenses relating to
notes or other obligations; contract or tort claims which may
exist or subsequently arise; and
o Except for the express waiver of certain claims in the Plan, any
and all actual or potential avoidance claims pursuant to any
applicable section of the Bankruptcy Code, including, without
limitation sections 544, 545, 547, 548, 549, 550, 551, 553(b)
and/or 724(a) of the Bankruptcy Code, arising from any transaction
involving or concerning the Debtors.
In addition, there may be numerous other Bankruptcy Causes of
Action which currently exist or may subsequently arise that are not set forth
herein, because the facts upon which such Bankruptcy Causes of Action are based
are not fully or currently known by the Debtors and, as a result, cannot be
raised during the pendency of the Chapter 11 Cases (collectively, the "Unknown
Causes of Action"). The failure to list any such Unknown Cause of Action herein
is not intended to limit the rights of the Plan Administrator, on behalf of the
Post-Confirmation Estate, to pursue any Unknown Cause of Action to the extent
the facts underlying such Unknown Cause of Action become fully known to the
Debtors.
The potential net proceeds from the Bankruptcy Causes of
Action identified herein, or which may subsequently arise or be pursued, are
speculative and uncertain and therefore no value has been assigned to such
recoveries. The Debtors and the Post-Confirmation Estate do not intend, and it
should not be assumed that because any existing or potential Bankruptcy Causes
of Action have not yet been pursued by the Debtors or are not set forth herein,
that any such Bankruptcy Causes of Action have been waived.
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Unless Bankruptcy Causes of Action against an Entity are
expressly waived, relinquished, exculpated, released, compromised or settled in
the Plan or any Final Order, the Debtors expressly reserve all Bankruptcy Causes
of Action and Unknown Causes of Action, including the Bankruptcy Causes of
Action described herein, as well as any other Bankruptcy Causes of Action or
Unknown Causes of Action, for later adjudication and therefore, no preclusion
doctrine, including, without limitation, the doctrines of res judicata,
collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial,
equitable or otherwise) or laches shall apply to such Bankruptcy Causes of
Action upon or after the confirmation or consummation of the Plan. In addition,
the Debtors expressly reserve the right to pursue or adopt any claims alleged in
any lawsuit in which the Debtors are a defendant or an interested party,
including the lawsuits described herein, against any Person, including, without
limitation, the plaintiffs and co-defendants in such lawsuits.
Except as otherwise provided in the Plan or in any contract,
instrument, release, indenture or other agreement entered into in connection
with the Plan, in accordance with section 1123(b)(3) of the Bankruptcy Code, any
claims, rights, and Bankruptcy Causes of Action that the respective Debtors, or
the Post-Confirmation Estate may hold against any Entity, including but not
limited to those Bankruptcy Causes of Action listed herein, shall vest in the
Post-Confirmation Estate, and the Plan Administrator, on behalf of the
Post-Confirmation Estate, shall retain and may exclusively enforce, as the
authorized representative of the Post-Confirmation Estate, any and all such
claims, rights, or Bankruptcy Causes of Action, as appropriate, in accordance
with the best interests of the Post-Confirmation Estate and the terms of the
Post-Confirmation Estate Agreement. The Plan Administrator, on behalf of the
Post-Confirmation Estate, shall have the exclusive right, authority, and
discretion to institute, prosecute, abandon, settle, or compromise any and all
such claims, rights, and Bankruptcy Causes of Action without the consent or
approval of any third party and without any further order of court except as
otherwise provided in the Post-Confirmation Estate Agreement. Nothing in this
Section 17.7 is intended to impair any causes of action or theories of recovery
that are owned directly by Creditors.
17.8 APPOINTMENT OF PLAN ADMINISTRATOR: On the Effective
Date, compliance with the provisions of the Plan shall become the general
responsibility of the Plan Administrator and the Plan Administrator shall be
appointed in accordance with the Post-Confirmation Estate Agreement.
17.9 OVERSIGHT COMMITTEE: On the Effective Date, the POC
shall be appointed as described in the Post-Confirmation Estate Agreement, with
the rights and authority described therein. The Committee Designees, the
Reclamation Designee and the Tricon Designee shall be the initial members of the
Post-Confirmation Estate Oversight Committee. The POC shall adopt its own
bylaws; provided that such bylaws shall contain the following provisions and
other provisions consistent with the Post-Confirmation Estate Agreement:
(i) If for any reason a Committee Designee ceases to be
a member of the POC, the remaining Committee Designees may
select a successor to that Committee Designee; provided,
however, that at all times, at least one-half of the Committee
Designees shall be prepetition trade vendors of the Debtors.
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(ii) If for any reason the Reclamation Designee ceases
to be a member of the POC, the ad hoc committee of Reclamation
Claimants may select a successor to fill the vacancy.
(iii) If for any reason prior to Tricon's receipt of the
Satisfaction Amount, the Tricon Designee ceases to be a member
of the POC, Tricon shall select a successor to fill the
vacancy.
The Plan Administrator shall not be required to obtain Bankruptcy Court approval
with respect to any proposed action or inaction to which the POC has consented.
The POC shall be deemed to have consented to a proposed action or inaction by
the Plan Administrator if (i) so long as Tricon is a member of the POC, the
Tricon Designee has provided its written consent and (ii) a majority of the POC
members who are Committee Designees and the Reclamation Designee provide their
written consent. With respect to any litigation directly or indirectly involving
any member of the POC, such POC member(s) shall recuse themselves from any
decision affecting such litigation. The Tricon Designee shall recuse him or
herself from any votes upon any matters involving the initiation of litigation
relating to PepsiCo and its current and former officers, directors and
affiliates. Tricon's membership on the POC shall immediately cease and the
powers of the Tricon Designee shall immediately terminate upon the Satisfaction
Event.
17.10 TRICON FUNDING PERFORMANCE: On the Effective Date, the
proceeds of the Tricon Funding shall be conveyed and transferred to the Debtors
for the benefit of Creditors in accordance with the Plan. Once Tricon has fully
funded the Tricon Funding, the Debtors shall (i) fund the PACA Account in an
amount equal to the difference between the PACA Cash Amount and the amount of
Cash in the PACA Account on the Effective Date, (ii) fund the Tranche B Reserve,
(iii) fund 50% of the Tranche B Interest and (iv) pay all Claims required to be
paid on the Effective Date. The Debtors will then transfer the Post-Confirmation
Estate Assets (which include the Debtors' interest in the PACA Account, the
Tranche B Reserve and the Tranche B Interest) to the Post-Confirmation Estate in
accordance with the terms hereof.
17.11 CANCELLATION OF NOTES, INSTRUMENTS, DEBENTURES AND
EQUITY SECURITIES: On the Effective Date, except to the extent provided
otherwise in the Plan, all notes, instruments, certificates and other documents
evidencing Claims and all Equity Securities in any of the Debtors shall be
canceled and deemed terminated other than the Senior Secured Notes. On the
Effective Date, the Senior AFD Indenture, the Subordinated AFD Indenture and the
Subordinated NEHC Indenture, shall be deemed canceled as permitted by section
1123(a)(5)(F) of the Bankruptcy Code.
17.12 SURRENDER OF NOTES: Except as otherwise ordered by the
Bankruptcy Court, in order to receive any distribution under the Plan, each
holder of a Tranche A Lender Claim, a Tranche B Lender Claim or an Unsecured
Note issued under an indenture will be required to surrender all of its notes to
the appropriate indenture trustee for cancellation. Failure to comply
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with such requirements will bar a holder from receiving any distribution under
the Plan. Notwithstanding the foregoing, all such notes shall be deemed
surrendered, canceled and of no further force or effect as of the Effective
Date, whether or not such notes are delivered to the appropriate indenture
trustee. The manner and procedure to be followed for surrendering notes and for
providing necessary affidavits and bonds shall be prescribed by the indenture
trustees, upon reasonable notices sent to all holders of such notes.
17.13 SURVIVAL OF CERTAIN TERMS OF INDENTURES: Notwithstanding
the termination of the indentures and notes issued under any indenture, the
provisions of the indentures 1.1 governing the relationships of the indenture
trustee and their respective holders of notes, including those provisions
relating to distributions, the indenture trustee's rights to payment, liens on
property to be distributed to holders of such notes, and the indenture trustees'
rights of indemnity, if any, shall not be affected by the confirmation of the
Plan.
ARTICLE XVIII
PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS
UNDER THE PLAN
18.1 OBJECTIONS TO CLAIMS; PROSECUTION OF DISPUTED CLAIMS: The
Debtors or the Post-Confirmation Estate shall object to the allowance of Claims
or Interests filed with the Bankruptcy Court with respect to which they dispute
liability or allowance in whole or in part. All objections shall be litigated to
Final Order; PROVIDED, HOWEVER, that the Plan Administrator (within such
parameters as may be established by the Post-Confirmation Estate Agreement)
shall have the authority to file, settle, compromise or withdraw any objections
to Claims, without approval of the Bankruptcy Court; and PROVIDED, FURTHER, that
this Section 18.1 does not preclude the Senior Secured Noteholders from
objecting to any of the Tranche B Lender Claims.
18.2 ESTIMATION OF CLAIMS: The Debtors or the
Post-Confirmation Estate may at any time request that the Bankruptcy Court
estimate any contingent or Disputed Claim pursuant to section 502(c) of the
Bankruptcy Code regardless of whether the Debtors or the Plan Administrator
previously have objected to such Claim or whether the Bankruptcy Court has ruled
on any such objection, and the Bankruptcy Court will retain jurisdiction to
estimate any Claim at any time during litigation concerning any objection to any
Claim, including, without limitation, during the pendency of any appeal relating
to any such objection. Subject to the provisions of section 502(j) of the
Bankruptcy Code, in the event that the Bankruptcy Court estimates any contingent
or Disputed Claim, the amount so estimated shall constitute the maximum allowed
amount of such Claim. If the estimated amount constitutes a maximum limitation
on the amount of such Claim, the Debtors or the Post-Confirmation Estate may
pursue supplementary proceedings to object to the allowance of such Claim. All
of the aforementioned objection, estimation and resolution procedures are
intended to be cumulative and not necessarily exclusive of one another. Claims
may be estimated and subsequently compromised, settled, withdrawn or resolved by
any mechanism approved by the Bankruptcy Court.
18.3 PAYMENTS AND DISTRIBUTIONS ON DISPUTED CLAIMS: No
interest shall be paid on Disputed Claims that later become Allowed Claims or
with respect to any distribution to such holder. No distribution shall be made
with respect to all or any portion of any Claim, a portion of which or all of
which is a Disputed Claim pending the entire resolution thereof in the manner
prescribed in Section 18.1 hereof.
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ARTICLE XIX
POST-CONFIRMATION ESTATE; THE PLAN ADMINISTRATOR
19.1 GENERALLY: The powers, authority, responsibilities and
duties of the Post-Confirmation Estate and the Plan Administrator are set forth
in and shall be governed by the Post-Confirmation Estate Agreement.
19.2 PURPOSE OF THE POST-CONFIRMATION ESTATE: The
Post-Confirmation Estate shall be established for the primary purpose of
liquidating its assets, in accordance with Treasury Regulation Section
301.7701-4(d), with no objective to continue or engage in the conduct of a trade
or business, except to the extent reasonably necessary to, and consistent with,
the liquidating purpose of the Post-Confirmation Estate. The Post-Confirmation
Estate shall not be deemed a successor of the Debtors. It is not anticipated
that the Debtors will incur any United States federal income tax liability from
the transfer of the Post-Confirmation Estate Assets to the Post-Confirmation
Estate.
19.3 TRANSFER OF ASSETS:
(1) The transfer of the Post-Confirmation Estate Assets to the
Post-Confirmation Estate (after taking into account the payment by the Debtors
to and/or funding of the Allowed and projected Administrative Expense Claims,
the PACA Account, the Tranche A Reserve and the Tranche B Reserve) shall be
made, as provided herein, for the benefit of the holders of Allowed Claims in
Classes 6, 7, 8, 9 and 10 only to the extent such holders are entitled to
distributions under the Plan. On the Effective Date, and after the Debtors'
payments and/or funding of such reserves, on behalf of the holders of Allowed
Administrative Expense Claims and Allowed Claims in Classes 6, 7, 8, 9 and 10,
the Debtors shall transfer title to all remaining assets and such reserves
(subject only to such specified liabilities) to the Post-Confirmation Estate.
Upon the transfer of the Post-Confirmation Estate Assets to the
Post-Confirmation Estate, the Debtors shall have no interest in or with respect
to the Post-Confirmation Estate Assets or the Post-Confirmation Estate.
Notwithstanding the foregoing, to the extent the Debtors determine that any such
transfer may implicate an exclusion in any Debtors' Director and Officer
Insurance Policy, the cause of action at issue shall be assigned in another
manner determined by the Debtors.
(2) For all federal income tax purposes, all parties
(including, without limitation, the Debtors, the Plan Administrator and the
beneficiaries of the Post-Confirmation Estate) shall treat the transfer of
assets to the Post-Confirmation Estate in accordance with the terms of the Plan,
as a transfer by the Debtors to the holders of Allowed Claims in Classes 6, 7,
8, 9 and followed by a transfer by such holders to the Post-Confirmation Estate,
and the beneficiaries of the Post-Confirmation Estate shall be treated as the
grantors and owners thereof.
(3) After the Effective Date, and upon ten (10) Business Day's
written notice from Tricon to the Plan Administrator, the Plan Administrator
shall turn over to Tricon the Encumbered Residual Assets.
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19.4 VALUATION OF ASSETS: As soon as possible after the
Effective Date, the Post-Confirmation Estate shall value the Post-Confirmation
Estate Assets based on the good faith determination of the Post-Confirmation
Estate and the Post-Confirmation Estate shall apprise the beneficiaries of the
Post-Confirmation Estate of such valuation. The valuation shall be used
consistently by all parties (including the Debtors, the Plan Administrator and
the beneficiaries of the Post-Confirmation Estate) for all federal income tax
purposes. Any dispute regarding the valuation of these assets shall be resolved
by the Bankruptcy Court.
19.5 DISTRIBUTION; WITHHOLDING: At least annually, the Plan
Administrator shall distribute to the beneficiaries of the Post-Confirmation
Estate all net cash income plus all net cash proceeds from the liquidation of
assets (including as Cash for this purpose, all Cash Equivalents); PROVIDED,
HOWEVER, that the Post-Confirmation Estate may retain such amounts (i) as are
necessary in the sole discretion of the Plan Administrator to meet contingent
liabilities and to maintain the value of the Post-Confirmation Estate Assets
during liquidation, (ii) to pay administrative expenses (including any taxes
imposed on the Post-Confirmation Estate or in respect of the Post-Confirmation
Estate Assets) and (iii) to satisfy other liabilities incurred or assumed by the
Post-Confirmation Estate (or to which the Post-Confirmation Estate Assets are
otherwise subject) in accordance with the Plan or the Post-Confirmation Estate
Agreement. All such distributions shall be subject to the terms of the Plan and
the Post-Confirmation Estate Agreement; PROVIDED, FURTHER, that of the net
amount distributable, the Plan Administrator shall reserve, in accordance with
Section 19.7 hereof, such amounts as would be distributable in respect of
Disputed Claims (treating such Claims, for this purpose, as if they were Allowed
Claims). The Post-Confirmation Estate may withhold from amounts distributable to
any Entity any and all amounts, determined in the Plan Administrator's
reasonable sole discretion, to be required by any law, regulation, rule, ruling,
directive or other governmental requirement.
19.6 POST-CONFIRMATION ESTATE IMPLEMENTATION: On the
Effective Date, the Post-Confirmation Estate will be established and become
effective for the benefit of the holders of Claims in Classes 6, 7, 8, 9 and 10.
The Post-Confirmation Estate Agreement shall contain provisions customary to
trust agreements utilized in comparable circumstances, including, but not
limited to, any and all provisions necessary to ensure the continued treatment
of the Post-Confirmation Estate as a grantor trust and the holders of Allowed
Claims as the grantors and owners thereof for federal income tax purposes. All
parties (including the Debtors, the Plan Administrator and holders of Claims in
Classes 6, 7, 8, 9 and 10) shall execute any documents or other instruments as
necessary to cause title to the applicable assets to be transferred to the
Post-Confirmation Estate.
19.7 DISPUTED CLAIMS RESERVE: The Post-Confirmation Estate
shall maintain, in accordance with the Post-Confirmation Estate's powers and
responsibilities as described herein and in the Post-Confirmation Estate
Agreement, a reserve of any distributable amounts required to be set aside on
account of Disputed Claims. Such amounts shall be distributed, as provided
herein, as such Disputed Claims are resolved by Settlement or Final Order, and
shall be distributable in respect of such Disputed Claims as such amounts would
have been distributable had the Disputed Claims been Allowed Claims as of the
Effective Date.
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19.8 TERMINATION OF POST-CONFIRMATION ESTATE: The
Post-Confirmation Estate will terminate no later than the fifth (5th)
anniversary of the Effective Date; provided, however, that, on or prior to the
date six (6) months prior to such termination, the Bankruptcy Court, upon motion
by a party in interest, may extend the term of the Post-Confirmation Estate for
a finite period, if such extension is necessary to the liquidation of the
Post-Confirmation Estate Assets. Notwithstanding the foregoing, multiple
extensions can be obtained so long as Bankruptcy Court approval is obtained at
least six (6) months prior to the expiration of each extended term; PROVIDED,
HOWEVER, that the Plan Administrator receives an opinion of counsel or a
favorable ruling from the IRS that any further extension would not adversely
affect the status of the Post-Confirmation Estate as a grantor trust for federal
income tax purposes.
19.9 TERMINATION OF PLAN ADMINISTRATOR: The duties,
responsibilities and powers of the Plan Administrator shall terminate in
accordance with the terms of the Post-Confirmation Estate Agreement.
19.10 EXCULPATION; INDEMNIFICATION: From and after the
Effective Date, the Plan Administrator, the Plan Administrator's and the
Post-Confirmation Estate's employees and each of their professionals and
representatives shall be and hereby are exculpated by all Persons and Entities,
including, without limitation, holders of claims and other parties in interest,
from any and all claims, causes of action and other assertions of liability
arising out of the discharge of the powers and duties conferred upon such Plan
Administrator by the Plan or any Order of the Bankruptcy Court entered pursuant
to or in furtherance of the Plan, or applicable law, or otherwise, except only
for actions or omissions to act to the extent determined by an order of a court
of competent jurisdiction (with such order becoming a final, non-appealable
order) to be due to their own respective gross negligence or willful misconduct
from and after the Effective Date. No holder of a claim or other party in
interest will have or pursue any claim or cause of action against the Plan
Administrator, the Post-Confirmation Estate or the employees or professionals or
representatives of either the Plan Administrator or the Post-Confirmation Estate
for making payments in accordance with the Plan or for implementing the
provisions of the Plan. Any act or omission taken with the approval of the
Bankruptcy Court or the POC will be conclusively deemed not to constitute gross
negligence or willful misconduct. The Post-Confirmation Estate shall indemnify,
defend and hold harmless the Plan Administrator, the Plan Administrator's and
the Post-Confirmation Estate's employees, professionals and representatives from
and against any and all claims, causes of action, liabilities, losses, damages
and expenses (including attorneys' fees and expenses) (other than to the extent
determined by an order of a court of competent jurisdiction (with such order
becoming a final, non-appealable order) to be due to their own respective gross
negligence or wilful misconduct) to the fullest extent permitted by applicable
law. The obligations of the Debtors to indemnify and reimburse the D&O Releasees
against and for any obligations pursuant to articles of incorporation, codes of
regulations, bylaws, applicable state law, or specific agreement, or any
combination of the foregoing with respect to postpetition acts or omissions,
shall be assumed by the Post-Confirmation Estate to the extent covered by this
Plan. The Plan Administrator shall not be deemed a successor of the Debtors. The
Plan Administrator and the Post-Confirmation Estate shall be authorized to
obtain (by using Cash in the Post-Confirmation Estate) insurance coverage with
respect to the responsibilities, liabilities and obligations of the Plan
Administrator and the
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Post-Confirmation Estate and those Entities hired by the Plan Administrator and
the Post-Confirmation Estate to discharge such responsibilities, liabilities and
obligations. The exculpation provisions of this Section shall apply with equal
force to the Tricon Designee and those members of the Creditors' Committee and
the Ad Hoc Committee of Reclamation Claimants who serve on the POC, their
professionals and their designees (all in such capacity on the POC).
ARTICLE XX
ACCEPTANCE OR REJECTION OF PLAN; EFFECT OF REJECTION
BY ONE OR MORE CLASSES OF CLAIMS OR INTERESTS
20.1 IMPAIRED CLASSES TO VOTE: Each holder of a Claim or
Interest in an impaired Class shall be entitled to vote separately to accept or
reject the Plan unless such holder is deemed to accept or reject the Plan.
20.2 ACCEPTANCE BY CLASS OF CREDITORS AND HOLDERS OF
INTERESTS: An impaired Class of holders of Claims shall have accepted the Plan
if the Plan is accepted by at least two-thirds (2/3) in dollar amount and more
than one-half (1/2) in number of the Allowed Claims of such Class that have
voted to accept or reject the Plan. An impaired Class of holders of Interests
shall have accepted the Plan if the Plan is accepted by at least two-thirds
(2/3) in amount of the Allowed Interests of such Class that have voted to accept
or reject the Plan. A Class of holders of Claims shall be deemed to accept the
Plan in the event that no holder of a Claim within that Class submits a Ballot
by the Ballot Date.
20.3 CRAMDOWN: In the event that any impaired Class of Claims
or Interests shall fail to accept the Plan in accordance with section 1129(a) of
the Bankruptcy Code, the Debtors reserves the right to request that the
Bankruptcy Court confirm the Plan in accordance with section 1129(b) of the
Bankruptcy Code or amend the Plan.
ARTICLE XXI
IDENTIFICATION OF CLAIMS AND INTERESTS
IMPAIRED AND NOT IMPAIRED BY THE PLAN
21.1 IMPAIRED AND UNIMPAIRED CLASSES: Claims in Classes 1, 2,
3 and 5 of the Plan are not impaired under the Plan. Claims and Interests in
Classes 4, 6, 7, 8, 9, 10 and 11 are impaired under the Plan.
21.2 IMPAIRED CLASSES TO VOTE ON PLAN: The Claims included in
Classes 4, 6, 7, 8, 9 and 10 of the Plan are impaired and are therefore entitled
to vote to accept or reject the Plan. The Interests included in Class 11 of the
Plan are deemed to have rejected the Plan in accordance with the provisions of
section 1126(g) of the Bankruptcy Code.
21.3 CONTROVERSY CONCERNING IMPAIRMENT: In the event of a
controversy as to whether any Class of Claims or Interests is impaired under the
Plan, the Bankruptcy Court shall, after notice and a hearing, determine such
controversy.
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ARTICLE XXII
PROVISIONS REGARDING DISTRIBUTIONS
22.1 MANNER OF PAYMENT UNDER THE PLAN: Any payment in Cash to
be made by the Debtors or the Plan Administrator shall be made, at the election
of the Debtors or the Plan Administrator, as the case may be, by check drawn on
a domestic bank or by wire transfer from a domestic bank.
22.2 DELIVERY OF DISTRIBUTIONS: Subject to the provisions of
Rule 2002(g) of the Bankruptcy Rules, and except as otherwise provided herein,
distributions and deliveries to holders of Allowed Claims shall be made at the
address of each such holder as set forth on the Schedules filed with the
Bankruptcy Court unless superseded by the address set forth on proofs of claim
filed by such holders, or at the last known address of such a holder if no proof
of claim is filed or if the Debtors has been notified in writing of a change of
address.
22.3 UNDELIVERABLE DISTRIBUTIONS:
(1) HOLDING OF UNDELIVERABLE DISTRIBUTIONS: If any
distribution to any holder is returned to the Plan Administrator as
undeliverable, no further distributions shall be made to such holder unless and
until the Plan Administrator is notified, in writing, of such holder's
then-current address. Undeliverable distributions shall remain in the possession
of the Plan Administrator until such time as a distribution becomes deliverable.
All Entities ultimately receiving undeliverable Cash shall not be entitled to
any interest or other accruals of any kind. Nothing contained in the Plan shall
require the Plan Administrator to attempt to locate any holder of an Allowed
Claim or an Allowed Interest.
(2) FAILURE TO CLAIM UNDELIVERABLE DISTRIBUTIONS: After the
first (1st) anniversary of the Effective Date, the Plan Administrator shall file
a list with the Bankruptcy Court setting forth the names of those Entities for
which distributions have been made hereunder and have been returned as
undeliverable as of the date thereof. Any holder of an Allowed Claim that does
not assert its rights pursuant to the Plan to receive a distribution within six
(6) months from and after the Effective Date shall have its Claim for such
undeliverable distribution discharged and shall be forever barred from asserting
any such Claim against the Post-Confirmation Estate or the Post-Confirmation
Estate Assets. In such case, any consideration held for distribution on account
of such Claim or Interest shall revert to the Post-Confirmation Estate for
distribution to the beneficiaries of the Post-Confirmation Estate in accordance
with the terms of the Plan.
22.4 COMPLIANCE WITH TAX REQUIREMENTS/ALLOCATION: To the
extent applicable, the Post-Confirmation Estate shall comply with all tax
withholding and reporting requirements imposed on it by any Governmental Unit,
and all distributions pursuant to the Plan shall be subject to such withholding
and reporting requirements. For tax purposes, distributions received
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in respect of Allowed Claims will be allocated first to the principal amount of
such Claims, with any excess allocated to unpaid accrued interest.
22.5 TIME BAR TO CASH PAYMENTS: Checks issued by the Plan
Administrator on account of Allowed Claims shall be null and void if not
negotiated within ninety (90) days from and after the date of issuance thereof.
Requests for reissuance of any check shall be made directly to the Plan
Administrator by the holder of the Allowed Claim with respect to which such
check originally was issued. Any claim in respect of such a voided check shall
be made on or before the later of (a) the first (1st) anniversary of the
Effective Date or (b) ninety (90) days after the date of issuance of such check,
if such check represents a final distribution hereunder on account of such
Claim. After such date, all Claims in respect of voided checks shall be
discharged and forever barred and the Post-Confirmation Estate shall retain all
moneys related thereto for distribution to the beneficiaries of the
Post-Confirmation Estate in accordance with the terms of the Plan.
22.6 DISTRIBUTIONS AFTER EFFECTIVE DATE: Distributions made
after the Effective Date to holders of Claims that are not Allowed Claims as of
the Effective Date, but which later become Allowed Claims, shall be deemed to
have been made on the Effective Date.
22.7 FRACTIONAL DOLLARS; DE MINIMIS DISTRIBUTIONS:
Notwithstanding anything contained herein to the contrary, payments of fractions
of dollars will not be made. Whenever any payment of a fraction of a dollar
under the Plan would otherwise be called for, the actual payment made will
reflect a rounding of such fraction to the nearest dollar (up or down), with
half dollars being rounded down. The Plan Administrator will not make any
payment of less than One Hundred Dollars ($100) with respect to any Claim unless
a request therefor is made in writing to the Plan Administrator.
22.8 SET-OFFS: The Plan Administrator may, pursuant to
section 553 of the Bankruptcy Code or applicable nonbankruptcy law, set off
against any Allowed Claim and the distributions to be made pursuant to the Plan
on account thereof (before any distribution is made on account of such Claim),
the claims, rights and causes of action of any nature that the Debtors may hold
against the holder of such Allowed Claim; PROVIDED, HOWEVER, that neither the
failure to effect such a set-off nor the allowance of any Claim hereunder shall
constitute a waiver or release by the Debtors of any such claims, rights and
causes of action that the Debtors may possess against such holder.
22.9 SUBORDINATION RIGHTS: Except as otherwise ordered by the
Bankruptcy Court and Section 11.2 of the Plan, on the Effective Date, each
holder of a Claim shall be deemed to have waived all contractual, legal and
equitable subordination rights which may have, whether arising under general
principles of equitable subordination, section 510(c) of the Bankruptcy Code or
otherwise, with respect to any and all distributions to be made under the Plan,
and all such contractual, legal or equitable subordination rights that each
holder of a Claim has individually and collectively with respect to any such
distribution made pursuant to this Plan shall be discharged and terminated, and
all actions related to the enforcement of such subordination rights will be
permanently enjoined. If so otherwise ordered, then, all subordination rights
and claims determined by such order related to subordination shall remain
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valid, enforceable and unimpaired in accordance with section 510 of the
Bankruptcy Code or otherwise.
22.10 SETTLEMENT OF CLAIMS AND CONTROVERSIES: Pursuant to
Bankruptcy Rule 9019 and in consideration for the distributions and other
benefits provided under the Plan, the provisions of this Plan shall constitute a
good faith compromise and settlement of claims or controversies relating to the
contractual, legal and subordination rights that a holder of a Tricon Claim,
Tranche A Lender Claim, Reclamation Claim and Senior Secured Noteholder Claim
may have with respect to any Allowed Claim with respect thereto, or any
distribution to be made on account of such an Allowed Claim. The entry of the
Confirmation Order shall constitute the Bankruptcy Court's approval of the
compromise or settlement of all such claims or controversies and the Bankruptcy
Court's finding that such compromise or settlement is in the best interests of
the Debtors and their respective estates and holders of Claims and is fair,
equitable and reasonable. The provisions of the Plan regarding distributions
with respect thereto apply to all applicable contractual, legal and
subordination rights that holders of such Claims maintain and, from and after
the Effective Date, the holders of such Claims shall be entitled to rely upon
the validity and enforceability of any such provisions in accordance with the
provisions of section 510(a) of the Bankruptcy Code. Nothing in this Section
22.10 is intended to release or settle any claims directly owned by the Senior
Secured Noteholders other than claims against Tricon.
ARTICLE XXIII
CREDITORS' COMMITTEE
23.1 CREDITORS' COMMITTEE COMPOSITION AND TERM: From the
Confirmation Date up to and including the Effective Date, the members of the
Creditors' Committee appointed pursuant to section 1102 of the Bankruptcy Code,
and their duly appointed successors, shall continue to serve. On the Effective
Date, the Creditors' Committee shall be dissolved and the members thereof and
the professionals retained by the Creditors' Committee in accordance with
section 1103 of the Bankruptcy Code shall be released and discharged from their
respective fiduciary obligations. The dissolution of the Creditors' Committee
shall not impair the ability of its members to serve on the POC which members
shall be appointed to the POC on the terms and conditions contained in the
Post-Confirmation Estate Agreement.
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ARTICLE XXIV
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
24.1 REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES:
Any executory contracts or unexpired leases which have not expired by their own
terms on or prior to the Effective Date, which have not been assumed and
assigned or rejected with the approval of the Bankruptcy Court, or which are not
the subject of a motion to assume the same pending as of the Effective Date
shall be deemed rejected by the Debtors in Possession on the Effective Date and
the entry of the Confirmation Order by the Bankruptcy Court shall constitute
approval of such rejections pursuant to sections 365(a) and 1123 of the
Bankruptcy Code.
24.2 CURE OF DEFAULTS FOR ASSUMED EXECUTORY CONTRACTS AND
UNEXPIRED LEASES: Any monetary amounts required as cure payments on each
executory contract and unexpired lease to be assumed pursuant to the Plan shall
be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment
of the cure amount in Cash on the Effective Date or upon such other terms and
dates as the parties to such executory contracts or unexpired leases otherwise
may agree. In the event of a dispute regarding (a) the amount of any cure
payment, (b) the ability of the Debtors or any assignee to provide "adequate
assurance of future performance" (within the meaning of section 365 of the
Bankruptcy Code) under the contract or lease to be assumed or (c) any other
matter pertaining to assumption, the cure payments required by section 365(b)(1)
of the Bankruptcy Code shall be subject to the jurisdiction of the Bankruptcy
Court and made following the entry of a Final Order resolving such dispute.
24.3 REJECTION DAMAGE CLAIMS: Not later than November 14,
2000, the Debtors shall file with the Bankruptcy Court a definitive list of
executory contracts and unexpired leases to be assumed by the Debtors pursuant
to the Purchase Agreement as of the Effective Date, and such executory contracts
and unexpired leases shall be deemed assumed as of the Effective Date. If the
rejection of an executory contract or unexpired lease by the Debtors results in
damages to the other party or parties to such contract or lease, any claim for
such damages, if not heretofore evidenced by a filed proof of claim, shall be
forever barred and shall not be enforceable against the Debtors, or its
properties or agents, successors, or assigns, unless a proof of claim is filed
with the Bankruptcy Court and served upon counsel for the Debtors on or before
thirty (30) days after the later to occur of (a) the Confirmation Date and (b)
the date of entry of an order by the Bankruptcy Court authorizing rejection of a
particular executory contract or unexpired lease.
24.4 INDEMNIFICATION AND REIMBURSEMENT OBLIGATIONS:
Notwithstanding any other provision of the Plan to the contrary, the obligations
of the Debtors to indemnify, defend and reimburse the D&O Releasees against and
for any obligations in respect of those claims relating to post-Petition Date
actions or omissions covered by the Plan, pursuant to articles of incorporation,
codes of regulations, bylaws, the fullest extent of applicable law, or specific
agreement, or any combination of the foregoing, shall be deemed assumed by the
Post-Confirmation Estate on the Effective Date without any further action by any
Entity.
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ARTICLE XXV
CONDITIONS PRECEDENT TO CONFIRMATION
AND EFFECTIVE DATE OF THE PLAN
25.1 CONDITIONS PRECEDENT TO CONFIRMATION DATE OF THE PLAN:
The occurrence of the Confirmation Date shall be subject to satisfaction of the
following conditions precedent:
(1) The entry of the Confirmation Order in form and substance
satisfactory to the Debtors.
(2) The Bankruptcy Court shall have entered an order providing
that no Reclamation Claims shall be treated as Administrative Expense Claims,
Secured Claims or Priority Non-Tax Claims.
(3) Class 6 shall have voted to accept the Plan.
(4) The Sale Transaction or the Alternative Sale Transaction
shall not have been terminated.
25.2 CONDITIONS PRECEDENT TO EFFECTIVE DATE OF THE PLAN: The
occurrence of the Effective Date and the substantial consummation of the Plan
are subject to satisfaction of the following conditions precedent:
(1) CONFIRMATION ORDER: The Confirmation Order shall be in
full force and effect and shall not be subject to a stay.
(2) EXECUTION OF DOCUMENTS; OTHER ACTIONS: All other actions
and documents necessary to implement the Plan shall have been effected or
executed, including the Post-Confirmation Estate Agreement.
(3) SALE TRANSACTION; ALTERNATIVE SALE TRANSACTION: The
Debtors shall have consummated either (i) the Sale Transaction pursuant to and
in accordance with the terms of the McLane Purchase Agreement or (ii) the
Alternative Sale Transaction.
(4) TRICON FUNDING OBLIGATION: Payment of Cash by Tricon to
the Debtors in the amount of the Tricon Funding in accordance with the Plan.
(5) ABILITY TO MEET PROJECTED CASH NEEDS: The
Post-Confirmation Estate shall have sufficient Cash to permit payment of all of
its and the Plan Administrator's projected fees, expenses and wind down costs.
25.3 WAIVER OF CONDITIONS PRECEDENT: To the extent legally
permissible, each of the conditions precedent in Section 25.1 or Section 25.2,
may be waived, in whole or in part, by the Debtors in their sole discretion (and
by the Debtors and Tricon in the case of Sections 25.1(b) and (d) and Sections
25.2(a) and (c)). Any such waiver of a condition precedent may be effected at
any time, without notice or leave or order of the Bankruptcy Court and without
any formal action other than proceeding as if such condition did not exist.
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ARTICLE XXVI
RETENTION OF JURISDICTION
26.1 RETENTION OF JURISDICTION: The Bankruptcy Court shall
retain and have exclusive jurisdiction over any matter arising under the
Bankruptcy Code, arising in or related to the Chapter 11 Cases or the Plan, or
that relates to the following:
(1) to resolve any matters related to the assumption,
assumption and assignment or rejection of any executory contract or unexpired
lease to which any of the Debtors is a party or with respect to which the
Debtors may be liable and to hear, determine and, if necessary, liquidate, any
Claims arising therefrom, including those matters related to the amendment after
the Effective Date of the Plan, to add any executory contracts or unexpired
leases to the list of executory contracts and unexpired leases to be rejected;
(2) to enter such orders as may be necessary or appropriate to
implement or consummate the provisions of the Plan and all contracts,
instruments, releases, and other agreements or documents created in connection
with the Plan;
(3) to determine any and all motions, adversary proceedings,
applications and contested or litigated matters that may be pending on the
Effective Date or that, pursuant to the Plan, may be instituted by the Plan
Administrator or the Post-Confirmation Estate after the Effective Date;
(4) to ensure that distributions to holders of Allowed Claims
are accomplished as provided herein;
(5) to hear and determine any timely objections to
Administrative Expense Claims or to proofs of Claim and Interests filed, both
before and after the Confirmation Date, including any objections to the
classification of any Claim or Interest, and to allow, disallow, determine,
liquidate, classify, estimate or establish the priority of or secured or
unsecured status of any Claim, in whole or in part;
(6) to enter and implement such orders as may be appropriate
in the event the Confirmation Order is for any reason stayed, revoked, modified,
reversed or vacated;
(7) to issue such orders in aid of execution of the Plan, to
the extent authorized by section 1142 of the Bankruptcy Code;
(8) to consider any modifications of the Plan, to cure any
defect or omission, or reconcile any inconsistency in any order of the
Bankruptcy Court, including the Confirmation Order;
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(9) to hear and determine all applications for awards of
compensation for services rendered and reimbursement of expenses incurred prior
to the Confirmation Date;
(10) to hear and determine disputes arising in connection with
or relating to the Plan or the interpretation, implementation, or enforcement of
the Plan or the extent of any Entity's obligations incurred in connection with
or released or exculpated under the Plan;
(11) to issue injunctions, enter and implement other orders or
take such other actions as may be necessary or appropriate to restrain
interference by any Entity with consummation or enforcement of the Plan;
(12) to determine any other matters that may arise in
connection with or are related to the Plan, the Disclosure Statement, the
Post-Confirmation Estate Agreement, the Confirmation Order or any contract,
instrument, release or other agreement or document created in connection with
the Plan, the Disclosure Statement, the Settlement Agreement or the
Post-Confirmation Estate Agreement;
(13) to hear and determine matters concerning state, local and
federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy
Code;
(14) to hear any other matter or for any purpose specified in
the Confirmation Order that is not inconsistent with the Bankruptcy Code;
(15) to hear and determine any matters that may arise in
connection with the Sale Transaction, the Alternative Sale Transaction or any
order of the Bankruptcy Court with respect to either the Sale Transaction or an
Alternative Sale Transaction;
(16) to hear and determine any matters that may arise in
connection with the McLane Purchase Agreement or any order of the Bankruptcy
Court with respect thereto; and
(17) to enter a final decree closing the Chapter 11 Cases.
ARTICLE XXVII
MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN
27.1 MODIFICATION OF PLAN: The Debtors reserve the right, in
accordance with the Bankruptcy Code and the Bankruptcy Rules, to amend or modify
the Plan at any time prior to the entry of the Confirmation Order. Upon entry of
the Confirmation Order, the Debtors may, upon order of the Bankruptcy Court,
amend or modify the Plan, in accordance with section 1127(b) of the Bankruptcy
Code, or remedy any defect or omission or reconcile any inconsistency in the
Plan in such manner as may be necessary to carry out the purpose and intent of
the Plan. A holder of a Claim that has accepted the Plan shall be deemed to have
accepted the Plan as modified if the proposed modification does not materially
and adversely change the treatment of the Claim of such holder.
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27.2 REVOCATION OR WITHDRAWAL:
(1) The Plan may be revoked or withdrawn prior to the
Confirmation Date by the Debtors.
(2) If the Plan is revoked or withdrawn prior to the
Confirmation Date, then the Plan shall be deemed null and void. In such event,
nothing contained herein shall be deemed to constitute a waiver or release of
any claims by the Debtors or any other Entity or to prejudice in any manner the
rights of the Debtors or any other Entity in any further proceedings involving
the Debtors.
ARTICLE XXVIII
MISCELLANEOUS PROVISIONS
28.1 DISALLOWANCE OF CLAIMS: All Claims held by Entities
against whom the Debtors have or have asserted a cause of action under sections
542, 543, 550, 551 or 552 of the Bankruptcy Code, or that is a transferee of a
transfer avoidable under sections 544, 545, 547, 548, 549 or 553 of the
Bankruptcy Code shall be deemed disallowed pursuant to section 502(d) of the
Bankruptcy Code, and holders of such Claims may not vote to accept or reject the
Plan, both consequences to be in effect until such time as such causes of action
against that Entity have been settled or a Final Order entered and all sums due
the Debtors by that Entity are turned over to the Debtors or the
Post-Confirmation Estate.
Any and all Claims filed with the Bankruptcy Court after the
Bar Date shall be disallowed and holders of such Claims may not vote to accept
or reject the Plan.
28.2 TITLE TO ASSETS: Except as otherwise provided by the
Plan, on the Effective Date, title to all assets and properties encompassed by
the Plan shall vest in the Post-Confirmation Estate in accordance with section
1141 of the Bankruptcy Code.
28.3 INJUNCTION: Except as otherwise expressly provided in
the Plan, all Entities (other than Governmental Units) who have held, hold or
may hold Claims or Interests are permanently enjoined, from and after the
Effective Date, from (a) commencing or continuing in any manner any action or
other proceeding of any kind on account of any such Claim or Interest against
the Debtors, the Plan Administrator, the Post-Confirmation Estate or any of
their professionals, (b) the enforcement, attachment, collection or recovery by
any manner or means of any judgment, award, decree or order against the Debtors,
the Plan Administrator, the Post-Confirmation Estate or any of their
professionals, (c) creating, perfecting, or enforcing any encumbrance of any
kind against the Debtors, the Plan Administrator, the Post-Confirmation Estate
or any of their professionals or against the property or interests in property
of the Debtors, the Plan Administrator, the Post-Confirmation Estate or their
professionals and (d) asserting any defense or right of setoff, subrogation or
recoupment of any kind against any obligation due from the Debtors, the Plan
Administrator, the Post-Confirmation Estate or their professionals or against
the property or interests in property of the Debtors, the Plan Administrator,
the Post-Confirmation Estate or their professionals with respect to any such
Claim or Interest. This injunction shall not preclude any cause of action
against any Entities not included within the described injunction.
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28.4 INJUNCTION AS TO TRICON AND BKC: Except as otherwise
provided in the Plan, from and after the Effective Date, the Debtors and
Creditors (other than Governmental Units) shall be enjoined from asserting any
Claims (i) against Tricon regarding matters that occur prior to the Effective
Date, including, without limitation, any Claims relating to the Collateral
Support Reimbursement Obligations, the DIP Facility or the Tricon Prepetition
Receivable and (ii) against BKC regarding the Collateral Support Reimbursement
Obligations or the DIP Facility. This injunction does not apply to (a) with
respect to BKC, the Bankruptcy Causes of Action or other causes of action
reserved by the Debtors in accordance with Section 17.7 of the Plan or any
postpetition contractual obligations, other than the DIP Facility and Collateral
Support Obligations or (b) with respect to Tricon, any postpetition contractual
obligations other than the DIP Facility and Collateral Support Obligations.
28.5 TERM OF EXISTING INJUNCTIONS OR STAYS: Unless otherwise
provided, all injunctions or stays provided for in the Chapter 11 Cases pursuant
to sections 105, 362 or 525 of the Bankruptcy Code, or otherwise, and in
existence on the Confirmation Date, shall remain in full force and effect until
the Effective Date.
28.6 INJUNCTION AS TO D&O RELEASEES: As of the Effective
Date, all Entities (other than Governmental Units) are permanently enjoined from
commencing or continuing in any manner, any action or proceeding against any of
the D&O Releasees, whether directly, derivatively, on account of or respecting
any claim, debt, right or cause of action based in whole or in part upon any act
or omission, transaction, agreement, event or other occurrence taking place
during the period commencing on the Petition Date and ending on the Effective
Date. For the avoidance of doubt, this injunction does not apply to prepetition
claims or liabilities (i) in respect of any loan, advance or similar payment by
the Debtors or their affiliates to any such Entity, or (ii) in respect of any
contractual obligation owed by such Entity to the Debtors or their affiliates.
For the avoidance of doubt, the D&O Releasees are intended third party
beneficiaries of this Plan.
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28.7 LIMITED RELEASES BY AND OF CERTAIN PARTIES: Except as
otherwise specifically provided in the Plan, for good and valuable
consideration, including, but not limited to the Tricon Funding, (a) Tricon
shall be released from any and all Claims or causes of action of any kind that
belong to the Debtors or their estates that arose prior to the Effective Date
including, but not limited to, Claims in respect of the Collateral Support
Reimbursement Obligations, the DIP Facility and the Tricon Prepetition
Receivable, (b) BKC shall be released only from any Claims in respect of the
Collateral Support Reimbursement Obligations or the DIP Facility. This release
does not apply to (a) with respect to BKC, the Bankruptcy Causes of Action or
other causes of action reserved by the Debtors in accordance with Section 17.7
of the Plan or any postpetition contractual obligations other than the DIP
Facility and Collateral Support Obligations or (b) with respect to Tricon,
Claims by the Debtors against Tricon system franchisees, including, without
limitation, Golden West Tacos, Bankruptcy Causes of Action or other causes of
action reserved by the Debtors in accordance with Section 17.7 of the Plan or
any postpetition contractual obligations other than the DIP Facility and
Collateral Support Obligations.
28.8 EXCULPATION: The Debtors, the Plan Administrator, the
Post-Confirmation Estate, the D&O Releasees, the Senior Secured Noteholders in
their capacity as Senior Secured Noteholders (and the Ad Hoc Senior Secured
Noteholder Committee), the Creditors' Committee and its members (each in their
capacity as members of the Creditors' Committee), and Entities employed pursuant
to sections 327 and 1103 of the Bankruptcy Code (acting in such capacity) shall
neither have nor incur any liability to any Entity for any act taken or omitted
to be taken in connection with or related to the formulation, preparation,
dissemination, implementation, administration, confirmation or consummation of
the Plan, the Disclosure Statement or any contract, instrument, release or other
agreement or document created or entered into in connection with the Plan,
including the Post-Confirmation Estate Agreement, or any other act taken or
omitted to be taken in connection with the Chapter 11 Cases.
28.9 PRESERVATION OF RIGHTS OF ACTION: Except as otherwise
provided in the Plan or in any contract, instrument, release of other agreement
entered into in connection with the Plan, in accordance with section 1123(b) of
the Bankruptcy Code, the Post-Confirmation Estate shall retain sole and
exclusive authority to enforce any claims, rights or causes of action that the
Debtors or their chapter 11 estates may hold against any Entity, including any
Bankruptcy Causes of Action as set forth in Section 17.7 herein. The Plan
Administrator may pursue such retained rights or causes of action, as
appropriate, in accordance with the best interests of the Post-Confirmation
Estate.
28.10 SURRENDER OF NOTES: Except as otherwise ordered by the
Bankruptcy Court, in order to receive any distribution under the Plan, each
holder of a Secured Lender Claim or an Unsecured Note issued under an indenture
will be required to surrender all of its notes to the appropriate indenture
trustee for cancellation. Failure to comply with such requirements will bar a
holder from receiving any distribution under the Plan. Notwithstanding the
foregoing, all such notes shall be deemed surrendered, canceled and of no
further force or effect as of the Effective Date, whether or not such notes are
delivered to the appropriate indenture trustee.
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The manner and procedure to be followed for surrendering notes
and for providing necessary affidavits and bonds shall be prescribed by the
indenture trustees, upon reasonable notices sent to all holders of such notes.
28.11 SURVIVAL OF CERTAIN TERMS OF INDENTURES: Notwithstanding
the termination of the indentures and notes issued under any indenture, the
provisions of the indentures governing the relationships of the indenture
trustee and their respective holders of notes, including those provisions
relating to distributions, the indenture trustees' rights to payment, liens on
property to be distributed to holders of such notes, and the indenture trustees'
rights of indemnity, if any, shall not be affected by the confirmation of the
Plan.
28.12 PAYMENT OF STATUTORY FEES: All fees payable pursuant to
28 U.S.C.ss.1930, as determined by the Bankruptcy Court at the Confirmation
Hearing, shall be paid on and after the Effective Date from the
Post-Confirmation Estate to the extent required by applicable law.
28.13 POST-EFFECTIVE DATE FEES AND EXPENSES: From and after
the Effective Date, the Post-Confirmation Estate shall, in the ordinary course
of business and without the necessity for any approval by the Bankruptcy Court,
pay the reasonable professional fees and expenses incurred by the
Post-Confirmation Estate related to implementation and consummation of the Plan.
28.14 SECTION 1146 EXCEPTION: Pursuant to section 1146(c) of
the Bankruptcy Code, the issuance, transfer or exchange of any security under
the Plan, or the making or delivery of an instrument of transfer under the Plan,
the Sale Transaction or the Alternative Sale Transaction, may not be taxed under
any law imposing a stamp tax or similar tax.
28.15 SEVERABILITY: The provisions of this Plan shall not be
severable unless such severance is agreed to by the Debtors and such severance
would constitute a permissible modification of the Plan pursuant to section 1127
of the Bankruptcy Code.
28.16 CONFLICTS: Except as set forth below, to the extent that
any provision of the Disclosure Statement, the Post-Confirmation Estate
Agreement, the DIP Financing Order, or the Confirmation Order (or any exhibits,
schedules, appendices, supplements or amendments to the foregoing) conflict with
or are in any way inconsistent with the terms of the Plan, the Plan shall govern
and control. Notwithstanding the foregoing, nothing contained in the Plan shall
be deemed to relieve the Debtors of their respective obligations under the
documents executed by and among the Debtors and McLane in connection with the
Sale Transaction.
28.17 GOVERNING LAW: Except to the extent that the Bankruptcy
Code or other federal law is applicable, or to the extent that an exhibit hereto
or document contained in the Plan Supplement provides otherwise, the rights,
duties and obligations arising under this Plan shall be governed by, and
construed and enforced in accordance with, the Bankruptcy Code and, to the
extent not inconsistent therewith, the laws of the State of Delaware without
giving effect to principles of conflicts of laws.
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28.18 NOTICES: All notices, requests, and demands to or upon
the Debtors or the Plan Administrator to be effective shall be in writing,
including by facsimile transmission, and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when actually delivered
to all of the following or, in the case of notice by facsimile transmission,
when received by all of the following, addressed as follows or to such other
addresses as filed with the Bankruptcy Court.
AmeriServe Food Distribution, Inc.
15305 Dallas Parkway, Suite 1600
Addison, Texas 75001
Attention: Plan Administrator
Telecopier: (972) 364-2527
Telephone: (972) 364-2550
With a copy to:
Kirkland & Ellis
200 East Randolph
Chicago, Illinois 60601
Attention: James H. M. Sprayregen, Esq.
Telecopier: (312) 861-2200
Telephone: (312) 861-2000
-and-
Pachulski, Stang, Ziehl, Young & Jones PC
919 North Market Street, 16th Floor
Wilmington, Delaware 19801
Attention: Laura Davis Jones, Esq.
Telecopier: (302) 652-4200
Telephone: (302) 652-4100
28.19 CLOSING OF CASES: The Plan Administrator shall, promptly
upon the full administration of the Chapter 11 Cases, file with the Bankruptcy
Court all documents required by Bankruptcy Rule 3022 and any applicable order of
the Bankruptcy Court.
28.20 SECTION HEADINGS: The section headings contained in this
Plan are for reference purposes only and shall not affect in any way the meaning
or interpretation of the Plan.
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Dated: Dallas, Texas
_____________, 2000
AMERISERVE FOOD DISTRIBUTION, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Senior Vice-President and General
Counsel
AMERISERVE TRANSPORTATION, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Vice-President and Assistant Secretary
ASNSC, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Senior Vice-President and Secretary
CHICAGO CONSOLIDATED CORPORATION
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Vice-President
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DELTA TRANSPORTATION, LTD.
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Vice-President and Assistant Secretary
HOLBERG WAREHOUSE PROPERTIES, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Vice-President
NAVC CORP.
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Vice-President
NEBCO EVANS HOLDING COMPANY
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Senior Vice-President, General Counsel
and Secretary
NORTH AMERICAN VANTIX CORP.
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Secretary
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NORTHLAND TRANSPORTATION SERVICES, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Vice-President and Assistant Secretary
PRO SOURCE MEXICO HOLDINGS, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Vice-President and Assistant Secretary
PSC SERVICES OF FLORIDA, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Vice-President and Secretary
PSD TRANSPORTATION SERVICES, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Senior Vice-President and Secretary
VANTIX LOGISTICS, LTD.
By:
--------------------------------------------
Name: Kevin J. Rogan
Title: Vice-President
55
