IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ) CHAPTER 11
) CASE NO.00-0358(PJW)
AMERISERVE FOOD DISTRIBUTION, ) (JOINTLY ADMINISTERED)
INC., ET AL.,1 )
)
DEBTORS. )
ORDER (I) APPROVING DISCLOSURE STATEMENT, (II) ESTABLISHING VOTING
RECORD HOLDER DATE, (III) APPROVING SOLICITATION PROCEDURES AND LETTERS, FORM OF
BALLOTS, AND MANNER OF NOTICE, AND (IV) FIXING THE DATE, TIME AND PLACE FOR THE
CONFIRMATION HEARING AND THE DEADLINE FOR FILING OBJECTIONS THERETO
A hearing having been held on October 16, 2000 (the "Hearing")
to consider the Debtors' Motion (the "Motion"), dated September 13, 2000,
seeking, INTER ALIA, approval pursuant to section 1125 of title 11 of the United
States Code (the "Bankruptcy Code") of the proposed disclosure statement
heretofore filed with the Court and approval of the proposed solicitation
procedures in connection with confirmation of the Debtors' Third Amended Joint
Liquidating Plan of Reorganization Pursuant to Chapter 11 of the United States
Bankruptcy Code (the "Plan"), having been filed by AmeriServe Food Distribution,
Inc. and certain of its direct and indirect subsidiaries, as debtors and debtors
in possession (collectively, the "Debtors"), and it appearing from the
affidavits of service on file with this Court that proper and timely notice of
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1 The 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.
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the Hearing has been given; and it appearing that such notice was adequate and
sufficient; and the appearances of all interested parties having been duly noted
on the record of the Hearing; and each of the objections, if any, filed to the
proposed disclosure statement or the Motion having been either (a) withdrawn or
rendered moot by modifications to the disclosure statement or (b) overruled by
the Court; and the Debtors having made the conforming additions, changes,
corrections and deletions to the disclosure statement necessary to comport with
the record of the Hearing and the agreements, if any, reached with the parties,
if any, that had filed objections, a copy of which revised disclosure statement
is attached hereto as EXHIBIT A (the "Disclosure Statement"); and, upon the
Motion, the Disclosure Statement and the record of the Hearing and upon all of
the proceedings heretofore had before the Court and after due deliberation and
sufficient cause appearing therefor, it is
ORDERED, FOUND AND DETERMINED THAT:
1. The Disclosure Statement contains adequate information
within the meaning of section 1125 of the Bankruptcy Code.
2. The Disclosure Statement and the Motion are hereby
approved.
3. The Debtors are authorized to continue the retention of
Bankruptcy Services, LLC (the "Solicitation Agent") to, among other things,
assist the Debtors as their solicitation and balloting agent.
4. For voting purposes and mailing of notices pursuant to this
Order, October 20, 2000 shall be the "Record Holder Date" for the holders of
claims and interests.
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5. Only the following holders of claims in the Voting Classes2
shall be entitled to vote with regards to such claims (a) the holders of filed
proofs of claim as reflected, as of the close of business on the Record Holder
Date, on the official claims register maintained by the Balloting Agent and (b)
the holders of scheduled claims that are listed in the Debtors' schedules of
liabilities filed with the Court (as amended, the "Schedules") as NOT
contingent, unliquidated, or disputed claims (excluding scheduled claims that
have been superseded by a filed proof of claim); PROVIDED, HOWEVER, that the
assignee of a transferred and assigned claim (whether a filed or scheduled
claim) shall be permitted to vote such claim if the transfer and assignment has
been approved by the Court and such approval has been noted on the Court's
docket as of the close of business on the Record Holder Date.
6. With respect to claims based on the 8 7/8% Senior Notes (as
such term is defined in the Plan), U.S. Bank National Association is the
indenture trustee (the "Senior AFD Indenture Trustee"). With respect to claims
based on the 10 1/8% Senior Subordinated Notes (as such term is defined in the
Plan), State Street Bank and Trust Company is the indenture trustee (the
"Subordinated AFD Indenture Trustee"). With respect to the 12 3/8% Senior
Discount Notes (as such term is defined in the Plan), HSBC Bank USA is the
indenture trustee (the "Subordinated NEHC Indenture Trustee"). With respect to
the 12 % Senior Secured Notes (as such term is defined in the Plan), United
States Trust Company of New York is the indenture trustee (the "Senior Secured
Indenture Trustee"). The 8 7/8% Senior Notes,
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2 Pursuant to the Plan, holders of claims in Classes 4, 6, 7, 8, 9 and 10
are impaired and are entitled to vote (collectively, the "Voting
Classes").
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the 10 1/8% Senior Subordinated Notes, the 12 3/8% Senior Discount Notes and the
12% Senior Secured Notes are hereinafter collectively referred to as the
"Notes." The Senior AFD Indenture Trustee, the Subordinated AFD Indenture
Trustee, the Subordinated NEHC Indenture Trustee and the Senior Secured
Indenture Trustee are hereinafter referred to collectively as the "Indenture
Trustees."
7. Only the brokers, dealers, commercial banks, trust
companies or other nominees (collectively, the "Nominee Noteholders") through
which the beneficial owners ("collectively, the "Beneficial Noteholders") hold
the Notes as reflected in the records maintained by the Indenture Trustees as of
the close of business on the Record Holder Date shall be entitled to submit
Master Ballots (as defined below).
8. In connection with soliciting votes from the Nominee
Noteholders and Beneficial Noteholders, the Court hereby directs as follows:
1. the Nominee Noteholders shall forward the
Solicitation Package (as defined below) or
copies thereof (including a return envelope
provided by and addressed to the Nominee
Noteholders and including the Individual
Ballots described below) to the Beneficial
Noteholders within three (3) business days
of the receipt by such Nominee Noteholders
of the Solicitation Package;
2. the Beneficial Noteholders shall return the
Individual Ballots to the respective Nominee
Noteholders;
3. the Nominee Noteholders shall summarize the
votes of their respective Beneficial
Noteholders on the Master Ballots (as
described below), in accordance with the
instructions for the Master Ballots;
4. the Nominee Noteholders shall return the
Master Ballots to the Balloting Agent; and
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5. the Debtors shall provide the Nominee
Noteholders with sufficient copies of the
Solicitation Package to forward to the
Beneficial Noteholders.
9. The Debtors shall mail a ballot (with instructions),
substantially in the form of the ballots (with instructions) annexed hereto as
EXHIBIT B to the form of Order that is identified as Exhibit B to the Disclosure
Statement (the "Individual Ballots"), to each holder of a claim in the Voting
Classes under the Plan, provided, however, that the Debtors shall mail a ballot
(with instructions), substantially in the form of the ballot (with instructions)
annexed hereto as EXHIBIT C to the form of Order that is identified as Exhibit B
to the Disclosure Statement (the "Master Ballot"), to each of the Nominee
Noteholders for the purpose of summarizing the votes of their respective
Beneficial Noteholders and the Debtors shall mail an Individual Ballot to each
of the Nominee Noteholders for the purpose of soliciting the votes of the
Beneficial Noteholders.
10. On or before October 26, 2000, the Debtors shall deposit
or cause to be deposited in the United States mail, postage prepaid, a sealed
solicitation package (the "Solicitation Package") which shall include:
1. notice of the confirmation hearing and
related matters, substantially in the form
of annexed hereto as EXHIBIT D to the form
of Order that is identified as Exhibit B to
the Disclosure Statement (the "Confirmation
Hearing Notice"), setting forth the time
fixed for filing acceptances and rejections
to the Plan, the time fixed for filing
objections to confirmation of the Plan, and
the date and time of the hearing on
confirmation;
2. a copy of the Disclosure Statement, as
approved by the Court (with exhibits
including the Plan);
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3. a ballot (with instructions), in
substantially the form approved by the
Court; and
4. the recommendation letter of the Official
Committee of Unsecured Creditors
substantially in the form approved by the
Court.
11. The Debtors shall mail the Solicitation Packages to the
following holders of claims or interests in the Voting Classes under the Plan:
1.
1. holders of claims, as of the Record
Holder Date, that are listed in the
Debtors' Schedules as NOT
contingent, unliquidated, or
disputed (excluding scheduled
claims that have been superseded by
filed claims), PROVIDED, HOWEVER,
that the assignee of a transferred
and assigned scheduled claim shall
be permitted to vote such claim
ONLY if the transfer and assignment
has been approved by the Court and
such approval has been noted on the
Court's docket as of the close of
business on the Record Holder Date;
2. subject to subsection (c) below,
holders of claims, as of the Record
Holder Date, that are the subject
of a filed proof of claim which has
not been disallowed, disqualified
or suspended prior to computation
of the vote on the Plan, PROVIDED,
however, that the assignee of a
transferred and assigned filed
claim shall be permitted to vote
such claim ONLY if the transfer and
assignment has been approved by the
Court and such approval has been
noted on the Court's docket as of
the close of business on the Record
Holder Date; and
3. with respect to the Notes, to the
record holders and Nominee
Noteholders reflected in the
Indenture Trustees' records as of
the Record Holder Date.
12. In lieu of mailing the Solicitation Package, on or before
October 26, 2000, the Debtors shall deposit or cause to be deposited in the
United States mail, postage prepaid, the Notice of Non-Voting Status,
substantially in the form attached hereto as EXHIBIT E to the form of Order that
is identified as Exhibit B to the Disclosure Statement, to each holder of a
claim in Class 1, 2, 3 and 5 and to all known parties to executory contracts and
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unexpired leases who do not hold filed or scheduled claims (excluding claims
scheduled as contingent, unliquidated or disputed).
13. In lieu of mailing the Solicitation Package, on or before
October 26, 2000, the Debtors shall deposit or cause to be deposited in the
United States mail, postage prepaid, the Notice of Non-Voting Status,
substantially in the form attached hereto as EXHIBIT F to the form of Order that
is identified as Exhibit B to the Disclosure Statement, to each holder of equity
interests in Class 11.
14. The Debtors are authorized to reimburse the Nominee
Noteholders for their reasonable, actual and necessary out-of-pocket expenses
incurred in connection with distribution of the Solicitation Packages, Notice of
Non-Voting Status and, with respect to the Nominee Noteholders, preparation of
the Master Ballots.
15. The Debtors shall cause the Confirmation Hearing Notice to
be published once in THE WALL STREET JOURNAL (NATIONAL EDITION) on a date not
less than twenty-five (25) or more than thirty-five (35) calendar days prior to
the hearing to consider confirmation of the Plan.
16. All persons and entities entitled to vote on the Plan
shall deliver their ballots by mail, hand delivery or overnight courier no later
than 4:00 p.m. Eastern Time on November 16, 2000 (the "Voting Deadline") to the
Balloting Agent at:
BANKRUPTCY SERVICES, LLC
HERON TOWER,
70 EAST 55TH STREET, 6TH FLOOR,
NEW YORK, NEW YORK 10022
ATTENTION: DIANE ROCANO
Any ballot received after such time shall not be counted other than as provided
for herein. Ballots submitted by facsimile shall not be counted.
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17. The Debtors shall have the ability to extend the voting
deadline at the Debtors' sole discretion. If the Debtors choose to extend the
voting deadline, the Debtors shall provide notice of such extension through the
Dow Jones News Service.
18. For purposes of voting, the amount of a claim used to
tabulate acceptance or rejection of the Plan shall be the amount set forth on
the ballots for that particular creditor which shall be one of the following:
1. The amount set forth as a claim in the
Debtors' Schedules as NOT contingent,
unliquidated, or disputed (excluding
scheduled claims that have been superseded
by filed claims);
2. the amount set forth on a filed proof of
claim which has not been disallowed,
disqualified, suspended, reduced or
estimated and temporarily allowed for voting
purposes prior to computation of the vote on
the Plan; or
3. the amount estimated and temporarily allowed
pursuant to an order of this Court.
19. With respect to ballots submitted by a holder of a claim:
1. Any ballot which is properly completed,
executed and timely returned to the
Balloting Agent that does not indicate an
acceptance or rejection of the Plan shall be
deemed to be a vote to accept the Plan;
2. any ballot which is returned to the
Balloting Agent indicating acceptance or
rejection of the Plan but which is unsigned
shall not be counted;
3. whenever a creditor casts more than one
ballot voting the same claim prior to the
Voting Deadline, only the last timely ballot
received by the Balloting Agent shall be
counted,
4. if a creditor casts simultaneous duplicative
ballots voted inconsistently, then such
ballots shall count as one vote accepting
the Plan;
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5. each creditor shall be deemed to have voted
the full amount of its claim;
6. creditors shall not split their vote within
a claim, thus each creditor shall vote all
of its claim within a particular class
either to accept or reject the Plan;
7. any Individual Ballots that partially reject
and partially accept the Plan shall not be
counted; and
8. with the exception of Master Ballots, any
ballot received by the Balloting Agent by
telecopier, facsimile or other electronic
communication shall not be counted.
20. With respect to the tabulation of ballots cast by
Beneficial Noteholders:
1. all Nominee Noteholders to which Beneficial
Noteholders return their Individual Ballots
shall summarize on the Master Ballot all
Individual Ballots cast by the Beneficial
Noteholders and return the Master Ballot to
the Balloting Agent, PROVIDED, HOWEVER, that
each Nominee Noteholder shall be required to
retain the Individual Ballots cast by the
respective Beneficial Noteholders for
inspection for one year following submission
of a Master Ballot;
2. votes cast by the Beneficial Noteholders
through a Nominee Noteholder by means of a
Master Ballot shall be applied against the
positions held by such Nominee Noteholder as
evidenced by the list of record holders
compiled as of the Record Holder Date,
PROVIDED, HOWEVER, that votes submitted by a
Nominee Noteholder on a Master Ballot shall
not be counted in excess of the position
maintained by such Nominee Noteholder as of
the Record Holder Date;
3. to the extent that there are over-votes
submitted by a Nominee Noteholder on a
Master Ballot, votes to accept and to reject
the Plan shall be applied by the Balloting
Agent in the same proportion as the votes to
accept or reject the Plan submitted on the
Master Ballot that contains the over-vote,
but only to the extent of the position
maintained by such Nominee Noteholder as of
the Record Holder Date;
4. multiple Master Ballots may be completed by
a single Nominee Noteholder and delivered to
the Balloting Agent and such votes will be
counted, except to the extent that such
votes are
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inconsistent with or are duplicative of
other Master Ballots, in which case the
latest dated Master Ballot received before
the Voting Deadline will supersede and
revoke any prior Master Ballot; and
5. each Beneficial Noteholder shall be deemed
to have voted the full amount of its claim.
21. The hearing on confirmation of the Plan is scheduled for
November 28, 2000, at 1:30 p.m. Eastern Time, at the Bankruptcy Court, Marine
Midland Plaza, 824 North Market Street, Sixth Floor, Wilmington, Delaware. This
hearing may be adjourned from time to time without further notice other than an
announcement of the adjourned date(s) at said hearing and at any adjourned
hearing(s).
22. Any objection to confirmation of the Plan must be filed
with the Clerk of the Bankruptcy Court, together with proof of service, no later
than 4:00 p.m., Eastern Time, on November 16, 2000, and must be served on each
of the persons on the list annexed hereto as EXHIBIT G to the form of Order that
is identified as Exhibit B to the Disclosure Statement so as to be received by
them no later than 4:00 p.m., Eastern Time, on November 16, 2000. Any objection
to confirmation of the Plan must be in writing and (a) must state the name and
address of the objecting party and the amount of its claims or the nature of its
interest and (b) must state, with particularity, the nature of its objection.
Any confirmation objection not filed and served as set forth herein shall be
deemed waived and shall not be considered by the Bankruptcy Court.
23. Pursuant to Federal Rule of Bankruptcy Procedure 2002 and
9006, notice of the Disclosure Statement, the Plan, the deadline for objecting
to the Plan, and the
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Confirmation Hearing in accordance with the terms of this Order shall be due
and sufficient notice of the same.
Dated: Wilmington, Delaware
_________________,2000
_____________________________________
PETER J. WALSH
CHIEF UNITED STATES BANKRUPTCY JUDGE
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EXHIBITS TO
ORDER (i) APPROVING DISCLOSURE STATEMENT, (ii) ESTABLISHING
VOTING RECORD HOLDER DATE, (iii) APPROVING SOLICITATION
PROCEDURES AND LETTERS, FORM OF BALLOTS, AND MANNER OF NOTICE,
AND (iv) FIXING THE DATE, TIME AND PLACE FOR THE CONFIRMATION
HEARING AND THE DEADLINE FOR FILING OBJECTIONS
THERETO
(EXHIBITS B-G NOT INCLUDED IN 8-K FILING)
EXHIBIT DOCUMENT(S)
A Third Amended Disclosure Statement for Debtors' Third Amended Joint
Liquidating Plan of Reorganization Pursuant to Chapter 11 of the United
States Bankruptcy Code, Dated October 20, 2000
B Beneficial Ballots for Classes 4, 5, 6, 7, 8A, 8B, 8C, 8D, 9, & 10
C Master Ballots for Classes 4, 5, 6, 7, 8A, 8B, 8C, 8D, 9, & 10
D Notice of Hearing to Confirm the Debtors' Third Amended Joint
Liquidating Plan of Reorganization Pursuant to Chapter 11 of the United
States Bankruptcy Code
E Notice of Non-Voting Status with Respect to Unimpaired Claims
F Notice of Non-Voting Status with Respect to Impaired Claims
G Service List for Objections to Confirmation of the Plan
