EXHIBIT 99.1
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ) CHAPTER 11
)
FLEMING COMPANIES, INC., ET AL.,(1) ) CASE NO. 03-10945 (MFW)
) (JOINTLY ADMINISTERED)
)
DEBTORS. )
DEBTORS' AND OFFICIAL COMMITTEE OF UNSECURED CREDITORS' SECOND AMENDED
JOINT PLAN OF REORGANIZATION OF FLEMING COMPANIES, INC. AND ITS FILING
SUBSIDIARIES UNDER CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
KIRKLAND & ELLIS LLP MILBANK TWEED HADLEY & MCCLOY LLP
200 East Randolph Drive One Chase Manhattan Plaza
Chicago, IL 60601 New York, NY 10005
(312) 861-2000 (212) 530-5000
and and
PACHULSKI, STANG, ZIEHL, YOUNG, PEPPER HAMILTON LLP
JONES & WEINTRAUB, PC 100 Renaissance Center
919 North Market Street, 16th Floor Suite 3600
PO Box 8705 Detroit, MI 48243-1157
Wilmington, DE 19899-8705 (313) 259-7110
(302) 652-4100
Co-Counsel for the Official
Co-Counsel for the Debtors and Debtors in Committee of Unsecured Creditors
Possession
Dated: March 26, 2004
- ------------------------------
(1) The Debtors are the following entities: Core-Mark International, Inc.;
Fleming Companies, Inc.; ABCO Food Group, Inc.; ABCO Markets, Inc.; ABCO
Realty Corp.; ASI Office Automation, Inc.; C/M Products, Inc.; Core-Mark
Interrelated Companies, Inc.; Core-Mark Mid-Continent, Inc.; Dunigan Fuels,
Inc.; Favar Concepts, Ltd.; Fleming Foods Management Co., L.L.C., Fleming
Foods of Texas, L.P.; Fleming International, Ltd.; Fleming Supermarkets of
Florida, Inc.; Fleming Transportation Service, Inc.; Food 4 Less Beverage
Company, Inc.; Fuelserv, Inc.; General Acceptance Corporation; Head
Distributing Company; Marquise Ventures Company, Inc.; Minter-Weisman Co.;
Piggly Wiggly Company; Progressive Realty, Inc.; Rainbow Food Group, Inc.;
Retail Investments, Inc.; Retail Supermarkets, Inc.; RFS Marketing Services,
Inc.; and Richmar Foods, Inc.
TABLE OF CONTENTS
PAGE
----
ARTICLE I. RULES OF INTERPRETATION, COMPUTATION OF TIME, GOVERNING LAW, RESERVATION OF RIGHTS AND DEFINED TERMS... 1
A. Rules of Interpretation, Computation of Time and Governing Law.................................. 1
B. Reservation of Rights........................................................................... 1
C. Defined Terms................................................................................... 1
ARTICLE II. UNCLASSIFIED CLAIMS................................................................................... 12
A. Administrative Claims........................................................................... 12
B. Priority Tax Claims............................................................................. 13
C. DIP Claims...................................................................................... 14
ARTICLE III. CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND EQUITY INTERESTS............................... 14
A. Summary......................................................................................... 14
B. Classification and Treatment.................................................................... 14
C. Special Provision Governing Unimpaired Claims................................................... 19
ARTICLE IV. ACCEPTANCE OR REJECTION OF THE PLAN................................................................... 19
A. Voting Classes.................................................................................. 19
B. Acceptance by Impaired Classes.................................................................. 19
C. Presumed Acceptance of Plan..................................................................... 19
D. Presumed Rejection of Plan...................................................................... 19
E. Non-Consensual Confirmation..................................................................... 19
ARTICLE V. MEANS FOR IMPLEMENTATION OF THE PLAN................................................................... 20
A. Substantive Consolidation....................................................................... 20
B. Continued Corporate Existence and Vesting of Assets in the Reorganized Debtors [............... 20
C. Cancellation of Old Notes, Old Stock and Other Equity Interests................................. 20
D. Issuance of New Securities; Execution of Related Documents...................................... 21
E. Restructuring Transactions...................................................................... 21
F. Corporate Governance, Directors and Officers, and Corporate Action.............................. 21
G. Post Confirmation Trust......................................................................... 22
H. Creation of Professional Fee Escrow Account..................................................... 24
ARTICLE VI. DEBTORS' RETAINED CAUSES OF ACTION.................................................................... 24
A. Maintenance of Causes of Action................................................................. 24
B. Preservation of Causes of Action................................................................ 24
C. Preservation of All Causes of Action Not Expressly Settled or Released.......................... 27
ARTICLE VII. FUNDING OF THE PLAN.................................................................................. 27
A. Exit Financing Facility, Obtaining Cash for Plan Distributions and Transfers of Funds
Among the Debtors and the Reorganized Debtors................................................... 27
B. Tranche B Loan.................................................................................. 28
C. Sale of Assets.................................................................................. 28
ARTICLE VIII. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES............................................... 28
A. Assumption/Rejection of Executory Contracts and Unexpired Leases................................ 28
B. Claims Based on Rejection of Executory Contracts or Unexpired Leases............................ 28
C. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed........................... 28
D. Indemnification of Directors, Officers and Employees............................................ 29
E. Compensation and Benefit Programs............................................................... 29
ii
PAGE
----
F. Insured Claims.................................................................................. 29
ARTICLE IX. PROVISIONS GOVERNING DISTRIBUTIONS.................................................................... 31
A. Distributions for Claims Allowed as of the Effective Date....................................... 31
B. Distributions by Core-Mark Newco and the Post Confirmation Trust................................ 31
C. Interest on Claims.............................................................................. 31
D. Compliance with Tax Requirements/Allocations.................................................... 31
E. Delivery of Distributions and Undeliverable or Unclaimed Distributions.......................... 32
F. Distribution Record Date........................................................................ 32
G. Timing and Calculation of Amounts to be Distributed............................................. 32
H. Minimum Distribution............................................................................ 33
I. Allowance or Resolution Setoffs................................................................. 33
J. Old Notes....................................................................................... 33
K. Failure to Surrender Canceled Instruments....................................................... 33
L. Lost, Stolen, Mutilated or Destroyed Debt Securities............................................ 34
M. Share Reserve................................................................................... 34
N. Settlement of Claims and Controversies.......................................................... 34
ARTICLE X. PROCEDURES FOR RESOLUTION OF DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS.............................. 34
A. Resolution of Disputed Claims................................................................... 34
B. Allowance of Claims............................................................................. 35
C. Controversy Concerning Impairment............................................................... 35
D. Impact on Pending Litigation; Pension Plans..................................................... 35
ARTICLE XI. CONDITIONS PRECEDENT TO CONFIRMATION AND OCCURRENCE OF THE EFFECTIVE DATE OF THE PLAN................. 36
A. Conditions Precedent to Confirmation............................................................ 36
B. Conditions Precedent to Occurrence of the Effective Date........................................ 36
C. Waiver of Conditions............................................................................ 37
D. Effect of Non-occurrence of Conditions to Occurrence of the Effective Date...................... 37
ARTICLE XII. DISCHARGE, RELEASE, INJUNCTION AND RELATED PROVISIONS................................................ 38
A. Subordination................................................................................... 38
B. MUTUAL RELEASES BY RELEASEES.................................................................... 38
C. RELEASES BY HOLDERS OF CLAIMS................................................................... 38
D. INDEMNIFICATION................................................................................. 38
E. EXCULPATION..................................................................................... 39
F. DISCHARGE OF CLAIMS AND TERMINATION OF EQUITY INTERESTS......................................... 39
G. INJUNCTION...................................................................................... 39
H. POLICE AND REGULATORY POWERS.................................................................... 39
ARTICLE XIII. RETENTION OF JURISDICTION........................................................................... 40
ARTICLE XIV. MISCELLANEOUS PROVISIONS............................................................................. 41
A. Effectuating Documents, Further Transactions and Corporation Action............................. 41
B. Dissolution of Committee........................................................................ 41
C. Payment of Statutory Fees....................................................................... 41
D. Modification of Plan............................................................................ 41
E. Revocation of Plan.............................................................................. 41
F. Environmental Liabilities....................................................................... 41
G. Successors and Assigns.......................................................................... 42
H. Reservation of Rights........................................................................... 42
I. Section 1146 Exemption.......................................................................... 42
J. Further Assurances.............................................................................. 42
K. Entire Agreement................................................................................ 42
iii
PAGE
----
L. Service of Documents............................................................................ 42
M. Filing of Additional Documents.................................................................. 44
iv
TABLE OF EXHIBITS TO BE FILED WITH THE PLAN
EXHIBIT A SCHEDULE OF RETAINED CAUSES OF ACTION
EXHIBIT B EXCLUDED RELEASEES
v
DEBTORS' AND OFFICIAL COMMITTEE OF UNSECURED CREDITORS' SECOND AMENDED
JOINT
PLAN OF REORGANIZATION OF FLEMING COMPANIES, INC. AND ITS
FILING SUBSIDIARIES UNDER CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
Pursuant to Title 11 of the United States Code, 11 U.S.C. Sections 101
et seq., Fleming Companies, Inc. and its Filing Subsidiaries, debtors and
debtors-in-possession in the above-captioned and numbered case, and their
Official Committee of Unsecured Creditors hereby respectfully propose the
following Second Amended Joint Plan of Reorganization of Fleming Companies, Inc.
and its Filing Subsidiaries Under Chapter 11 of the United States Bankruptcy
Code:
ARTICLE I.
RULES OF INTERPRETATION,
COMPUTATION OF TIME, GOVERNING LAW, RESERVATION OF RIGHTS AND DEFINED TERMS
A. Rules of Interpretation, Computation of Time and Governing Law
1. For purposes herein: (a) whenever from the context it is
appropriate, each term, whether stated in the singular or the plural, shall
include both the singular and the plural, and pronouns stated in the masculine,
feminine or neuter gender shall include the masculine, feminine and the neuter
gender; (b) any reference herein to a contract, instrument, release, indenture
or other agreement or document being in a particular form or on particular terms
and conditions means that such document shall be substantially in such form or
substantially on such terms and conditions; (c) any reference herein to an
existing document or exhibit Filed, or to be Filed, shall mean such document or
exhibit, as it may have been or may be amended, modified or supplemented; (d)
unless otherwise specified, all references herein to Sections, Articles and
Exhibits are references to Sections, Articles and Exhibits hereof or hereto; (e)
the words "herein," "hereof" and "hereto" refer to the Plan in its entirety
rather than to a particular portion of this Plan; (f) captions and headings to
Articles and Sections are inserted for convenience of reference only and are not
intended to be a part of or to affect the interpretation hereof; (g) the rules
of construction set forth in section 102 of the Bankruptcy Code shall apply; and
(h) any term used in capitalized form herein that is not otherwise defined but
that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the
meaning assigned to such term in the Bankruptcy Code or the Bankruptcy Rules, as
the case may be.
2. In computing any period of time prescribed or allowed hereby,
the provisions of Bankruptcy Rule 9006(a) shall apply.
3. Except to the extent that the Bankruptcy Code or Bankruptcy
Rules are applicable, and subject to the provisions of any contract, instrument,
release, indenture or other agreement or document entered into in connection
herewith, the rights and obligations arising hereunder shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without giving effect to the principles of conflict of laws thereof.
B. Reservation of Rights
This Plan is a joint Plan of the Debtors and the Committee. The Plan
currently contains several matters on which the Debtors and the Committee have
not reached final agreement. In the event that the parties can not reach final
agreement on such matters prior to solicitation of votes on the Plan, the
parties reserve their respective rights to withdraw their support for this joint
Plan and proceed in any manner appropriate as outlined in the Stipulation Re
Co-Exclusive Period to File Plan of Reorganization dated November 25, 2003, or
under the Bankruptcy Code.
C. Defined Terms
Unless the context requires otherwise, the following terms shall have
the following meanings when used in capitalized form herein:
1
1. "5 1/4% Convertible Senior Subordinated Notes" means the 5
1/4% Convertible Senior Subordinated Notes, CUSIP numbers 339130AQ9 and
339130AR7, due 2009 issued by Fleming in the original principal amount of $150
million and guaranteed by all of the Debtors.
2. "5 1/4% Convertible Senior Subordinated Notes Indenture" means
that certain indenture dated March 15, 2001, between Bank One, N.A., as
indenture trustee, and Fleming, as amended or supplemented.
3. "9 1/4% Senior Notes" means the 9 1/4% Senior Notes, CUSIP
number 339130AX4, due 2010 issued by Fleming in the original principal amount of
$200 million and guaranteed by all of the Debtors.
4. "9 1/4% Senior Notes Indenture" mean that certain indenture
dated June 18, 2002, between the Bank of New York., as successor trustee to
Manufactures and Traders Trust Company, and Fleming, as amended or supplemented.
5. "9 7/8% Senior Subordinated Notes" means the 9 7/8% Senior
Subordinated Notes, CUSIP number 339130AW6, due 2012 issued by Fleming in the
original principal amount of $260 million and guaranteed by all of the Debtors.
6. "9 7/8% Senior Subordinated Notes Indenture" means that
certain indenture dated April 15, 2002, between Bank One, N.A., as indenture
trustee, and Fleming, as amended or supplemented.
7. "10 1/8% Senior Notes" means the 10 1/8% Senior Notes, CUSIP
number 339130AP1, due 2008 issued by Fleming in the original principal amount of
$355 million and guaranteed by all of the Debtors.
8. "10 1/8% Senior Notes Indenture" means that certain indenture
dated March 15, 2001, between the Bank of New York as successor indenture
trustee to Bankers Trust Company, and Fleming, as amended or supplemented.
9. "10 5/8% Senior Subordinated Notes" means the Series A and B
10 5/8% Senior Notes, CUSIP numbers 339130AL0 and 339130AT3, due in 2007 issued
by Fleming in the original principal amount of $400 million and guaranteed by
all of the Debtors.
10. "10 5/8% Senior Subordinated Notes Indenture" means that
certain indenture dated July 25, 1997, between Bank One, N.A. as indenture
trustee, and Fleming as amended or supplemented.
11. "Additional Carve-Out" means that additional carve-out
provided for Professional Fees and expenses of $6.0 million, which are entitled
to payout prior to the payment of Administrative Claims to Allowed Approved
Trade Creditor Lien Claim Holders, as outlined in the Final DIP Order.
12. "Administrative Claim" means a Claim for costs and expenses of
administration under section 503(b), 507(b) or 1114(e)(2) of the Bankruptcy
Code, including, but not limited to: (a) the actual and necessary costs and
expenses incurred after the Petition Date of preserving the Estates and
operating the businesses of the Debtors (including Approved Trade Creditor Lien
Claims as well as wages, salaries or commissions for services and payments for
goods and other services and leased premises); (b) compensation for legal,
financial advisory, accounting and other services and reimbursement of expenses
awarded or allowed under sections 328, 330(a) or 331 of the Bankruptcy Code or
otherwise; and (c) all fees and charges assessed against the Estates under
chapter 123 of Title 28 United States Code, 28 U.S.C. Sections 1911-1930.
13. "Agents" mean Deutsche Bank Trust Company Americas, acting in
its capacity as administrative agent for the Post-Petition Lenders, and JPMorgan
Chase Bank, acting in its capacity as collateral agent for the Post-Petition
Lenders.
14. "Aggregate Limit" means the aggregate or per-occurrence
maximum amount of insurance for a particular insurance policy (or policies, as
the case may be) owned by the Debtors.
15. "Allowed" means, with respect to any Claim except as otherwise
provided herein: (a) a Claim that has been scheduled by a Debtor in its schedule
of liabilities as other than disputed, contingent or unliquidated and as to
which the Debtors or any other party in interest has not Filed an objection by
the Objection Deadline; (b) a Claim
2
that either is not a Disputed Claim or has been allowed by a Final Order; (c) a
Claim that is determined by the Debtors or the Post Confirmation Trust, as
applicable, to be allowed; (d) a Claim that is allowed: (i) in any stipulation
of amount and nature of Claim executed prior to the Effective Date; (ii) in any
stipulation with the Post-Confirmation Trust of amount and nature of Claim
executed on or after the Effective Date; or (iii) in or pursuant to any
contract, instrument, indenture or other agreement entered into or assumed in
connection herewith; (e) a Claim relating to a rejected executory contract or
unexpired lease that either (i) is not a Disputed Claim or (ii) has been allowed
by a Final Order, in either case only if a proof of Claim has been Filed by the
Claims Bar Date or has otherwise been deemed timely Filed under applicable law;
or (f) a Claim as to which a proof of Claim has been timely filed and as to
which the Debtors, the Post Confirmation Trust or any party in interest has not
filed an objection by the Objection Deadline; and with respect to all Claims
only after reduction for unpaid pre-petition and post-petition deductions,
preference payments and other applicable setoff rights.
16. "Allowed Claim" means an Allowed Claim in the particular Class
described.
17. "Allowed Defense Costs" means certain costs incurred by an
Insurer in the defense and/or liquidation of an Insured Claim, for which the
Debtors are obligated to reimburse the respective Insurers.
18. "Approved Trade Creditor" means a trade creditor who elected
to participate in the Trade Credit Program established under the Final DIP Order
and provided post-petition trade credit thereunder.
19. "Approved Trade Creditor Lien" means the junior lien of an
Approved Trade Creditor in the amount of actual trade credit provided pursuant
to the agreement with the Debtors and as outlined in the Trade Credit Program.
20. "Approved Trade Creditor Lien Claim" means the Claim of an
Approved Trade Creditor in the amount of actual unpaid trade credit provided
pursuant to the agreement with the Debtors and as outlined in the Trade Credit
Program.
21. "Approved Trade Creditor Reclamation Lien Claim" means the
Claim of an Approved Trade Creditor holding a Reclamation Claim in the lesser of
(a) the amount of the actual trade credit provided pursuant to the agreement
with the Debtors as outlined in the Trade Credit Program and (b) the amount of
the Allowed Reclamation Claim, as outlined in the Trade Credit Program
determined without consideration of whether the Inventory of the Debtors
exceeded the amount of the Pre-Petition Lenders' Secured Claim.
22. "Assumption Schedule" means the schedule to be filed 15 days
prior to the Voting Deadline, of executory contracts and unexpired leases that
are to be assumed by the Reorganized Debtors on the Effective Date.
23. "Avoidance Actions" means those avoidance actions available
pursuant to Chapter 5 of the Bankruptcy Code.
24. "Ballots" means the ballots accompanying the Disclosure
Statement upon which Holders of Impaired Claims entitled to vote shall indicate
their acceptance or rejection of the Plan in accordance with the Plan and the
Voting Instructions.
25. "Bank Guarantees" means those guarantees issued by the Filing
Subsidiaries in favor of the Pre-Petition Lenders, guaranteeing the obligations
of Fleming on the Pre-Petition Credit Agreement.
26. "Bankruptcy Code" means Title 11 of the United States Code,
and applicable portions of Titles 18 and 28 of the United States Code.
27. "Bankruptcy Court" means the United States District Court
having jurisdiction over the Chapter 11 Cases and, to the extent of any
reference made pursuant to section 157 of Title 28 of the United States Code
and/or the General Order of such District Court pursuant to section 151 of Title
28 of the United States Code, the bankruptcy unit of such District Court.
28. "Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure, as amended from time to time, as applicable to the Chapter 11 Cases,
promulgated under 28 U.S.C. Section 2075 and the General, Local and Chambers
Rules of the Bankruptcy Court.
3
29. "Beneficial Holder" means the Person or Entity holding the
beneficial interest in a Claim or Equity Interest.
30. "Bondholders" mean the Beneficial Holders of the Old Notes.
31. "Business Day" means any day, other than a Saturday, Sunday or
"legal holiday" (as defined in Bankruptcy Rule 9006(a)) in Wilmington, Delaware.
32. "Canadian CCAA Court" means the Supreme Court of British
Columbia or such other court in Canada having jurisdiction over Core-Mark
International Inc.'s proceedings under the CCAA from time to time.
33. "Carve-Out" means the carve-out provided for in the Final DIP
Order or any Court Order or credit agreement executed with respect to a
refinancing of the DIP Credit Facility or Pre-Petition Credit Agreement which
includes but is not necessarily limited to (i) in the event of the occurrence
and during the continuation of a Termination Event (as defined in the Final DIP
Order), the payment of allowed and unpaid professional fees and disbursements
incurred by the Debtors and the Committee in an aggregate amount not in excess
of $4.0 million (plus all unpaid professional fees and disbursements incurred
prior to the occurrence of such Termination Event strictly in accordance with
the budget described in the Final DIP Order and to the extent allowed by the
Bankruptcy Court), and (ii) the payment of all fees required to be paid pursuant
to 28 U.S.C. Section 1930(c)(6) and all unpaid fees payable to the Clerk of this
Court or the United States Trustee.
34. "Cash" means cash and cash equivalents.
35. "Casualty Insurance Program" means the certain insurance
policies maintained by the Debtors pursuant to the Insurance Program, including,
but not limited to: automobile liability, general liability, property damage and
other, similar types of insurance coverage.
36. "Cause of Action" means, including but is not limited to, all
Claims, actions, choses in action, causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants,
controversies, agreements, promises, variances, trespasses, damages, judgments,
third-party claims, counterclaims and cross claims (including, but not limited
to, all claims in any avoidance, recovery, subordination or other actions
against Insiders and/or any other Persons under the Bankruptcy Code, including
sections 510, 542, 543, 544, 545, 547, 548, 549, 550, 551 and 553) of the
Debtors, the Debtors in Possession and/or the Estates (including, but not
limited to, those actions listed in this Plan, Exhibit A filed herewith and the
Disclosure Statement that are or may be pending on the Effective Date or
instituted by Core-Mark Newco, the Reorganized Debtors or the Post Confirmation
Trust, as applicable, after the Effective Date against any Person based on law
or equity, including, but not limited to, under the Bankruptcy Code, whether
direct, indirect, derivative, or otherwise and whether asserted or unasserted,
known or unknown.
37. "CCAA" means the Companies' Creditors Arrangement Act
(Canada).
38. "Chapter 11 Cases" means the chapter 11 bankruptcy cases filed
by the Debtors on April 1, 2003, in the Bankruptcy Court.
39. "Claim" means (a) right to payment, whether or not such right
is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured; or (b)
any right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured, as defined in section 101(5) of the Bankruptcy
Code. 40. "Claim Holder" means the Holder of a Claim.
41. "Claims Bar Date" means September 15, 2003.
42. "Class" means a category of Claims or Equity Interests as set
forth in Article III herein.
4
43. "Class 3B Preferred Interests" means those certain secured
preferred interests to be issued by the Post Confirmation Trust in favor of the
Holders of Allowed Class 3B Claims pursuant to the terms of the Class 3B
Preferred Interests Term Sheet.
44. "Class 3B Preferred Interests Term Sheet" means that certain
Indicative Term Sheet, Secured Preferred Interests with Junior Secured
Guarantee, March 2004, attached to the Disclosure Statement as Exhibit 10.
45. "Class 5 Preferred Interests" means those certain junior
secured preferred interests to be issued by the Post Confirmation Trust in favor
of the Holders of Allowed Class 5 Claims pursuant to the terms of the Class 5
Preferred Interests Term Sheet.
46. "Class 5 Preferred Interests Sheet" means that certain
Indicative Term Sheet, Junior Secured Preferred Interests with Junior Secured
Guarantee, March 2004, attached to the Disclosure Statement as Exhibit 11.
47. "COBRA Claims" means those Claims for continuation of health
plan coverage as required in section 4980B of the Internal Revenue Code of 1986,
as amended.
48. "Confirmation" means the entry of the Confirmation Order.
49. "Confirmation Date" means the date upon which the Confirmation
Order is entered by the Bankruptcy Court on its docket, within the meaning of
Bankruptcy Rule 5003.
50. "Confirmation Hearing" means that hearing before the
Bankruptcy Court wherein the Debtors seek confirmation of the Plan as provided
for in section 1128 of the Bankruptcy Code.
51. "Confirmation Order" means the order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
52. "Convenience Claims" means those General Unsecured Claims in
Class 7 herein, as described in section III.B.9 herein.
53. "Core-Mark Newco" means the Delaware corporation to be formed
on the Effective Date, as well as Core-Mark Holdings I, Core-Mark Holdings II
and Core-Mark Holdings III, as further described in section V.E. herein.
However, for purposes of distribution of the New Common Stock, "Core-Mark Newco"
shall not include Core-Mark Holdings I, Core-Mark Holdings II and Core-Mark
Holdings III.
54. "Covered Allowed Insured Claims" means a Claim covered by the
Casualty Insurance Program where the sum of the amount of the Insured Claim plus
the Debtors' expenses on account of such Claim, exceeds the Deductible Amount
but does not exceed the Aggregate Limit for that particular policy (or policies,
as the case may be).
55. "Creditors Committee" or "Committee" means the Official
Committee of Unsecured Creditors appointed in the Chapter 11 Cases by the United
States Trustee on April 14, 2003.
56. "D&O Policies" means the insurance policies purchased by the
Debtors to provide coverage for certain amounts owed by directors and officers
to third parties on account of actions taken by directors and officers during
the course of their roles as officers and/or directors of the Debtors.
57. "D&O Releasees" means all officers, directors, employees,
attorneys, financial advisors, accountants, investment bankers, agents and
representatives of each Debtor and their respective subsidiaries, in each case
in their capacity as such as of the Petition Date or thereafter, whose
identities shall be mutually agreed upon by the Debtors and the Committee, but
excluding the Excluded Releasees.
58. "Debtors" means Fleming and its Filing Subsidiaries, as
debtors in the Chapter 11 Cases.
59. "Deductible Amount" means the per-occurrence deductible amount
payable by the applicable Debtor(s) under a respective insurance policy.
5
60. "DIP Claim" means a Claim arising under or as a result of the
DIP Credit Facility, including letters of credit issued thereunder.
61. "DIP Credit Facility" means the commitment secured by the
Debtors for debtor-in-possession financing from the post-petition lenders
authorized in the Final DIP Order or any refinancing thereof, including but not
limited to a refinancing whereby the refinancing lender takes an assignment of
the DIP Credit Facility or the Claims of the Post-Petition Lenders thereunder.
62. "Disclosure Statement" means the Second Amended Disclosure
Statement in Support of Debtors' and Official Committee of Unsecured Creditors'
Second Amended Joint Plan of Reorganization of Fleming Companies, Inc., and its
Filing Subsidiaries under Chapter 11 of the Bankruptcy Code dated March __,
2004, as amended, supplemented, or modified from time to time, describing the
Plan, that is prepared and distributed in accordance with the Bankruptcy Code.
63. "Disputed" means, for purposes of this Plan, with respect to
any Claim or Equity Interest, any Claim or Equity Interest: (a) listed on the
Schedules as unliquidated, disputed or contingent and for which a timely
Objection has been filed; or (b) as to which any Debtor, the Post Confirmation
Trust, or any other party in interest has interposed a timely objection or
request for estimation in accordance with the Bankruptcy Code and the Bankruptcy
Rules which has not been withdrawn or determined by a Final Order.
64. "Distribution Record Date" means the Effective Date unless a
different date is ordered by the Bankruptcy Court.
65. "DSD Settlement Agreement" means that Statement of Settlement
Agreement between Debtors and DSD Class Plaintiffs dated February 5, 2004,
whereby the DSD Trust Claims and corresponding litigation was settled.
66. "DSD Settlement Fund" means the fund established under the DED
Settlement Agreement in the amount of $17.5 million.
67. "DSD Trust Claims" means those claims of certain vendors that
arose from the direct shipment of goods to retailers, and which Claims were
settled in the DSD Settlement Agreement.
68. "DTC" means The Depository Trust Company.
69. "Effective Date" means the date selected by the Debtors and
the Committee on which: (a) no stay of the Confirmation Order is in effect, and
(b) all conditions specified in Article XI herein have been (i) satisfied or
(ii) waived pursuant to Section XI.C. The Effective Date is anticipated to be
seven days after the Confirmation Date.
70. "Entity" means an entity as defined in section 101(15) of the
Bankruptcy Code.
71. "Equity Interest" means (a) any equity interest in Fleming,
including, but not limited to, all issued, unissued, authorized or outstanding
shares or stock (including the Old Stock) and (b) any interest, including but
not limited to, any warrant, options, conversion privileges or contract rights
to purchase or acquire any equity security of Fleming at any time.
72. "Estate" means the estate of each Debtor created by section
541 of the Bankruptcy Code upon the commencement of the Chapter 11 Cases.
73. "Exceeded Allowed Insured Claims" means a Claim covered by the
Casualty Insurance Program where the sum of the Insured Claim plus the Debtor's
expenses on account of such Claim exceeds the Aggregate Limit.
74. "Exchange Agent" means the institution engaged by the Debtors
to conduct the exchange of certain securities as provided for herein.
6
75. "Excluded Releasees" means those parties listed on Exhibit B
filed herewith, which Exhibit shall be mutually agreed upon by the Debtors and
the Committee.
76. "Exit Financing Facility" means the senior secured term and
revolving credit facilities in the anticipated aggregate amount of [$250
MILLION], that will be entered into by Core Mark Newco on the Effective Date on
substantively the terms set forth on Exhibit 7 to the Disclosure Statement.
77. "File" or "Filed" means file or filed with the Bankruptcy
Court in the Chapter 11 Cases.
78. "Filing Subsidiaries" means Core-Mark International, Inc.;
ABCO Food Group, Inc.; ABCO Markets, Inc.; ABCO Realty Corp.; ASI Office
Automation, Inc.; C/M Products, Inc.; Core-Mark Interrelated Companies, Inc.;
Core-Mark Mid-Continent, Inc.; Dunigan Fuels, Inc.; Favar Concepts, Ltd.;
Fleming Foods Management Co., L.L.C., Fleming Foods of Texas, L.P.; Fleming
International, Ltd.; Fleming Supermarkets of Florida, Inc.; Fleming
Transportation Service, Inc.; Food 4 Less Beverage Company, Inc.; Fuelserv,
Inc.; General Acceptance Corporation; Head Distributing Company; Marquise
Ventures Company, Inc.; Minter-Weisman Co.; Piggly Wiggly Company; Progressive
Realty, Inc.; Rainbow Food Group, Inc.; Retail Investments, Inc.; Retail
Supermarkets, Inc.; RFS Marketing Services, Inc.; and Richmar Foods, Inc.
79. "Final Decree" means the decree contemplated under Bankruptcy
Rule 3022.
80. "Final DIP Order" means that Final Order entered by the
Bankruptcy Court on May 6, 2003, providing final authorization for the Debtors
to utilize the DIP Credit Facility.
81. "Final Order" means an order or judgment of the Bankruptcy
Court, or other court of competent jurisdiction with respect to the subject
matter, which has not been reversed, stayed, modified or amended, and as to
which the time to appeal or seek certiorari has expired and no appeal or
petition for certiorari has been timely taken, or as to which any appeal that
has been taken or any petition for certiorari that has been or may be filed has
been resolved by the highest court to which the order or judgment was appealed
or from which certiorari was sought.
82. "First Administrative Bar Date" means January 15, 2004.
83. "First Administrative Bar Date Order" means the Order
Establishing Deadline for Filing Requests for Allowance of Certain
Administrative Expense Claims, Approving Form and Manner of Notice thereof and
Approving Proof of Administrative Claim Form dated November 26, 2003.
84. "Fleming" means Fleming Companies, Inc.
85. "Fleming Convenience" means Core-Mark International Inc.,
Core-Mark Interrelated Companies, Inc., Core-Mark Mid Continent Inc.,
Minter-Weisman Co., Head Distributing Company and the Debtors' other related
convenience store operations.
86. "FSA" means the $75 million reserve established under
paragraph 6 of the Bankruptcy Court's Order entered on August 15, 2003 (Docket
No. 3142) approving the sale of the Debtors' Wholesale Distribution Business to
C&S, which reserve has been reduced pursuant to the Bankruptcy Court's Order
entered on December 23, 2003 (Docket No. 5224).
87. "FSA Participants" means those creditors who are entitled to
assert "Offset Rights" against the FSA as specifically set forth under paragraph
6 of the Bankruptcy Court's Order entered on August 15, 2003 (Docket No. 3142)
approving the sale of the Debtors' Wholesale Distribution Business to C&S.
88. "General Unsecured Claim" means any Claim against any Debtor
that is not a Claim within Classes 1, 2, 3(A), 3(B), 3(C), 4, 5, 8 and 9 and is
not an Administrative Claim, Priority Tax Claim or DIP Claim.
89. "Holder" and, collectively, "Holders" mean a Person or Entity
holding an Equity Interest or Claim, including a Holder of the Old Notes or the
Old Stock, and with respect to a vote on the Plan, means the Beneficial Holder
as of the Record Date or any authorized signatory who has completed and executed
a Ballot or on whose behalf a Master Ballot has been completed and executed in
accordance with the Voting Instructions.
7
90. "Impaired" means with respect to any Class of Claims or Equity
Interests, that such Claims or Equity Interests will not be paid in full upon
the effectiveness of this Plan, will not be reinstated or will be changed by the
reorganization effectuated hereby.
91. "Impaired Claim" means a Claim classified in an Impaired Class
of Claims.
92. "Impaired Class" means each of the Classes that is not an
Unimpaired Class.
93. "Indentures" means, collectively, the 5 1/4% Convertible
Senior Subordinated Notes Indenture, the 9 1/4% Senior Notes Indenture, the
9 7/8% Senior Subordinated Notes Indenture, the 10 1/8% Senior Notes Indenture
and the 10 5/8% Senior Subordinated Notes Indenture.
94. "Insurance Program" means the comprehensive collection of
insurance policies maintained by the Debtors, which includes, but is not limited
to, policies for (i) workers' compensation, (ii) directors & officers liability,
and (iii) casualty events.
95. "Insurance Security" means the certain letters of credit
issued by third-parties to secure the Debtors' liabilities to the Insurers under
the Insurance Program.
96. "Insurers" means the insurance carriers that provide insurance
policies to the Debtors pursuant to the Insurance Program.
97. "Intercompany Claims" means any Claim held by any Debtor
against any other Debtor or any Claim held by a Debtor subsidiary that is not a
Filing Subsidiary against any Debtor.
98. "Inventory" means products and supplies of the Debtors, on
hand or in transit on the Petition Date, specifically excluding Cash, property,
plant and equipment, capital leases or similar items.
99. "Litigation Claims" means all Avoidance Actions and Vendor
Deductions.
100. "Management Incentive Plan" means that certain equity
incentive program (the terms of which shall be outlined in a term sheet to be
filed 15 days prior to the Voting Deadline) pursuant to which certain key
employees of the Reorganized Debtors or its subsidiaries will receive or have
the right to receive up to [__%] of the New Common Stock to be issued pursuant
hereto.
101. "Master Ballots" mean the master ballots accompanying the
Disclosure Statement upon which Holders of Old Notes shall indicate their
acceptance or rejection of the Plan in accordance with the Voting Instructions.
102. "New Common Stock" means the shares of Core-Mark Newco common
stock, par value $.01 per share, to be authorized pursuant to its Certificate of
Incorporation which shall be issued pursuant to this Plan.
103. "Nominee" means any broker, dealer, commercial bank, trust
company, savings and loan, financial institution or other nominee in whose name
securities are registered or held of record on behalf of a Beneficial Holder.
104. "Objection Deadline" means that date which is one year after
the Effective Date or such later date as the Court may allow upon request by the
Reorganized Debtors or the Post Confirmation Representative, as applicable, by
which the Debtors, the Post Confirmation Representative or any party in interest
has to file an objection to any Claim not previously allowed.
105. "Old Notes" means the 5 1/4% Convertible Senior Subordinated
Notes, the 9 1/4% Senior Notes, the 9 7/8% Senior Subordinated Notes, the
10 1/8% Senior Notes and the 10 5/8% Senior Subordinated Notes.
106. "Old Notes Trustees" means Bank One, N.A, the Bank of New York
and Bankers Trust Company.
107. "Old Republic Letters of Credit" means the letters of credit
obtained by the Debtors, for the benefit of Old Republic Insurance Company, to
secured any obligations owed by the Debtors to Old Republic
8
Insurance Company pursuant to the Old Republic Program agreement and the Old
Republic Policies that were issued thereunder.
108. "Old Republic Policies" means the insurance policies issued to
the Debtors by Old Republic Insurance Company pursuant to the Old Republic
Program Agreement, as amended.
109. "Old Republic Program Agreement" means the agreement, as
amended, between the Debtors and Old Republic Insurance Company, dated July 1,
2002, pursuant to which Old Republic issued insurance policies that provided
insurance coverage to the Debtors from July 1, 2002 through January 1, 2005.
110. "Old Senior Notes" means the 9 1/4% Senior Notes and the
10 1/8% Senior Notes.
111. "Old Senior Subordinated Notes" means the 5 1/4% Convertible
Senior Subordinated Notes, the 9 7/8% Senior Subordinated Notes and the 10 5/8%
Senior Subordinated Notes.
112. "Old Stock" means all of the issued and outstanding shares of
Fleming common stock, $.01 par value per share.
113. "Other Priority Non-Tax Claim" means any Claim accorded
priority in right of payment under section 507(a) of the Bankruptcy Code, other
than a Priority Tax Claim or an Administrative Claim.
114. "Other Secured Claims" means secured claims not in Classes
1(B), 2, 3(B) or 3(C).
115. "Other Securities Claims and Interests" means (a) any Equity
Interest (other than Old Stock), including, but not limited to, any warrants,
options, conversion privileges or contract rights to purchase or acquire any
equity securities of Fleming at any time, and (b) any Claims, obligations,
rights, suits, damages, causes of action, remedies, and liabilities whatsoever,
whether known or unknown, foreseen or unforeseen, currently existing or
hereafter arising, in law, equity or otherwise arising from the purchase or sale
of a security of Fleming or the rescission of a purchase or sale of a security
of Fleming (including the Old Notes and Old Stock) or the purchase or sale of a
security of any affiliate of Fleming or the rescission of a purchase or sale of
a security of any affiliate of Fleming, for damages arising from the purchase,
sale or holding of such securities or the exercise of an option, warrant,
conversion privilege or contractual right to such purchase or sale, or for
reimbursement, indemnification or contribution allowed under section 502 of the
Bankruptcy Code on account of such a Claim.
116. "Over-Deductible Amount" means that portion of an Insured
Claim that exceeds the Deductible Amount.
117. "PACA/PASA Claims" means Claims asserted pursuant to the
Perishable Agricultural Commodities Act, 7 U.S.C. Section 499a et seq., the
Packers and Stockyard Act, 7 U.S.C. Section 181 et seq., or state statutes of
similar import.
118. "Person" means a person as defined in section 101(41) of the
Bankruptcy Code.
119. "Petition Date" means April 1, 2003, the date on which the
Debtors filed their petitions for relief commencing the Chapter 11 Cases.
120. "Plan" means this Chapter 11 Plan of Reorganization, either in
its present form or as it may be altered, amended, modified or supplemented from
time to time in accordance with the Plan, the Bankruptcy Code and the Bankruptcy
Rules.
121. "Post Confirmation Representative" means the trustee under the
Post Confirmation Trust Agreement.
122. "Post Confirmation Trust" means that trust that shall be
created pursuant to the Plan and the Post Confirmation Trust Agreement for the
purposes of carrying out certain provisions of the Plan.
123. "Post Confirmation Trust Advisory Board" means that board
created to advise the Post Confirmation Trust, as outlined in section V.G.2
herein.
9
124. "Post Confirmation Trust Agreement" means that agreement, a
draft of which is attached to the Disclosure Statement as Exhibit 9, that shall
be entered into by the Debtors, the Committee and the Post Confirmation
Representative on or before the Effective Date, and which shall govern the Post
Confirmation Trust.
125. "Post Confirmation Trust Distributable Assets" means the
assets in the Post Confirmation Trust, net of expenses, reserves and the payment
of certain Claims and obligations under the Plan and otherwise as outlined in
more detail in the Post Confirmation Trust Agreement, which are available for
distribution to the Holders of Allowed Class 3(B) or Class 5 Claims.
126. "Post-Petition Lenders" means the lenders under the DIP Credit
Facility or any lender participating in the refinancing of the DIP Credit
Facility, including but not limited to a refinancing lender which takes an
assignment of the DIP Credit Facility or the Claims of the Post-Petition Lenders
thereunder.
127. "Preference Actions" means those avoidance actions provided
for in section 547 of the Bankruptcy Code.
128. "Pre-Petition Agent" means each agent under, and as defined
in, the Pre-Petition Credit Agreement, including, each Joint Book Manager and
each Joint Lead Arranger, in each case under, and as defined in, the
Pre-Petition Credit Agreement.
129. "Pre-Petition Credit Agreement" means the Credit Agreement
dated June 18, 2002, as amended, among the Debtors and the lenders party thereto
providing for secured credit borrowing term loans and letters of credit in an
aggregate amount of $755,000,000 or any refinancing thereof, including but not
limited to a refinancing whereby the refinancing lender takes an assignment of
the Pre-Petition Credit Agreement or the Claims of the Pre-Petition Lenders
thereunder.
130. "Pre-Petition Lenders" means the lenders pursuant to the
Pre-Petition Credit Agreement or any lender to a refinancing of the Pre-Petition
Credit Agreement, including, but not limited to, a lender which takes an
assignment of the Pre-Petition Credit Agreement or the Claims of the
Pre-Petition Lenders thereunder.
131. "Pre-Petition Lenders' Secured Claims" means the Claims
arising under the Pre-Petition Credit Agreement.
132. "Priority Tax Claim" means a Claim of a governmental unit
(including any Canadian taxing authority) of the kind specified in section
507(a)(8) of the Bankruptcy Code, including Claims of a governmental unit for
which a surety bond may be posted, but excluding Property Tax Claims.
133. "Professional," or, collectively, "Professionals" means a
Person or Entity (a) employed pursuant to a Final Order in accordance with
sections 327 and 1103 or 363 of the Bankruptcy Code and to be compensated for
services rendered prior to the Effective Date pursuant to sections 327, 328,
329, 330 and 331 or 363 of the Bankruptcy Code, or (b) for which compensation
and reimbursement has been allowed by the Bankruptcy Court pursuant to section
503(b)(4) of the Bankruptcy Code.
134. "Professional Fee Escrow Account" means the account
established by the Reorganized Debtors on the Effective Date, solely for the
purpose of paying all accrued and anticipated Professional Fees through the
Effective Date.
135. "Professional Fees" means all fees and expenses (including,
but not limited to, success fees, if any) for services rendered by all
Professionals in the Chapter 11 Cases through the Effective Date that the
Bankruptcy Court has not denied by Final Order, regardless of whether a fee
application has been filed for such fees.
136. "Property Tax Claims" means a claim of a governmental unit for
taxes owing with respect to real or personal property owned by the Debtors,
including ad valorem taxes, which claim may be but is not necessarily secured by
the real or personal property on which the tax is owing.
137. "PMSI" means a purchase money security interest as defined in
Section 9-312 of the Uniform Commercial Code.
10
138. "Ratable Proportion" means the ratio (expressed as a
percentage) of the amount of an Allowed Claim in a Class to the aggregate amount
of all Allowed Claims in the Class.
139. "Reclamation Claims" means Claims to which a Trustee's
avoidance powers are subject pursuant to section 546(c) of the Bankruptcy Code.
140. "Record Date" means [_______], 2004.
141. "Releasees" means, other than the Excluded Releasees, each of
the Debtors, the Reorganized Debtors, Core-Mark Newco, each of the D&O
Releasees, the Pre-Petition Lenders, the Old Notes Trustees, the Post-Petition
Lenders, the Tranche B Lenders, the Committee, each member of the Committee, the
Post Confirmation Representative and the Post Confirmation Trust Advisory Board,
the Agents and the affiliates, agents and professionals of each of the
foregoing, each in their capacity as such.
142. "Reorganized Debtors" means collectively Core-Mark Newco, and
Core-Mark International, Inc., Core-Mark Mid-Continent, Inc., General Acceptance
Inc., C/M Products, Inc., ASI Office Automation, Inc., E.A. Morris Distributors,
Inc., Head Distributing Company, Marquise Ventures Company, Inc. and
Minter-Weisman Co. or any successor thereto by merger, consolidation, or
otherwise, on and after the Effective Date.
143. "Restated By-laws" means the restated by-laws of the
Reorganized Debtors, if necessary, the form of which shall be Filed 20 days
prior to the Confirmation Hearing.
144. "Restated Certificate of Incorporation" means those certain
Restated Certificates of Incorporation of the Reorganized Debtors which,
pursuant hereto, are to be filed with the Secretary of State of the State of
Delaware, the form of which shall be filed 20 days prior to the Confirmation
Hearing.
145. "Schedules" mean the schedules of assets and liabilities,
schedules of executory contracts, and the statement of financial affairs filed
by the Debtors pursuant to section 521 of the Bankruptcy Code, the Official
Bankruptcy Forms and the Bankruptcy Rules, as they have been and may be amended
and supplemented from time to time.
146. "Second Administrative Bar Date" means that date that is
forty-five (45) days after the Effective Date.
147. "Securities Act" means the Securities Act of 1933, 15 U.S.C.
sections 77a-77aa, as now in effect or hereafter amended, or any similar
federal, state or local law.
148. "Senior Note Claims" means those Claims derived from or based
upon the Old Senior Notes.
149. "Senior Notes Indentures" means the 9 1/4% Senior Notes
Indenture and the 10 1/8 Senior Notes Indenture.
150. "Senior Notes Indenture Trustee" means the Bank of New York.
151. "Senior Subordinated Note Claims" means those Claims derived
from or based upon 5 1/4% Convertible Senior Subordinated Notes, the 9 7/8%
Senior Subordinated Notes and the 10 5/8% Senior Subordinated Notes.
152. "Trade Credit Program" means that program established under
the Final DIP Order providing a junior lien to Approved Trade Creditors who made
post-petition credit available to the Debtors.
153. "Tranche B Lenders" means those lenders who are participants
in the Tranche B Loan.
154. "Tranche B Loan" means the loan of up to $60,000,000 of term
credit extensions to be made by the Tranche B Lenders to Core-Mark Newco on the
Effective Date on substantially the terms set forth on Exhibit 8 to the
Disclosure Statement.
11
155. "Unclassified Claims" means those Administrative and Priority
Claims described in Article II herein.
156. "Under-Deductible Insured Claims" means a Claim under the
Casualty Insurance Program, where the sum of the amount of the Insured Claim
plus the Debtors' expenses on account of such Claim, equals or is less than the
applicable per-occurrence deductible amount payable by the applicable Debtor(s)
under the relevant insurance policies.
157. "Unimpaired Claims" means Claims in an Unimpaired Class.
158. "Unimpaired Class" means an unimpaired Class within the
meaning of section 1124 of the Bankruptcy Code.
159. "Unsecured Claim" means any Claim against any Debtor that is
not a Secured Claim, Administrative Claim, DIP Claim, Priority Tax Claim, Other
Priority Claim or Other Secured Claim.
160. "Valid Reclamation Claims" means those Reclamation Claims with
an interest in the Debtors' Inventory under section 546 of the Bankruptcy Code
to the extent such Inventory has value in excess of the aggregate dollar amount
of Allowed Class 2 and Class 3(B) Claims.
161. "Vendor Deductions" means the amounts owed by vendors to the
Debtors, relating to the provision of pre-petition and post-petition goods and
services that remain unpaid as of the Effective Date.
162. "Voting Class" means any class of Claims entitled to vote on
the Plan.
163. "Voting Deadline" means the date stated in the Voting
Instructions by which all Ballots must be received.
164. "Voting Instructions" mean the instructions for voting on the
Plan contained in section III of the Disclosure Statement entitled "Voting and
Confirmation of the Plan" and in the Ballots and the Master Ballots.
165. "Wholesale Distribution Business" means that business segment
of the Debtors sold under section 363 of the Bankruptcy Code pursuant to the
Bankruptcy Court's Order dated August 15, 2003.
166. "Workers' Compensation Program" means the workers'
compensation insurance maintained by the Debtors to insure against injuries to
their employees that were incurred while certain employees were performing in
their respective employment positions with the Debtors.
ARTICLE II
UNCLASSIFIED CLAIMS
A. Administrative Claims
Subject to the provisions of section 330(a) and 331 of the Bankruptcy
Code, each Holder of an Allowed Administrative Claim, including Holders of
Allowed Approved Trade Creditor Lien Claims, but excluding claims for
Professional Fees, will be paid the full unpaid amount of such Allowed
Administrative Claim in Cash (i) on the Effective Date or as soon as practicable
thereafter, or (ii) if such Administrative Claim is Allowed after the Effective
Date, as soon as practicable after the date such Claim is Allowed, or (iii) upon
such other terms as may be agreed upon by such Holder and the applicable
Reorganized Debtor or otherwise upon an order of the Bankruptcy Court; provided
that Allowed Administrative Claims including Allowed Approved Trade Creditor
Lien Claims representing obligations incurred in the ordinary course of business
or otherwise assumed by the Debtors or Reorganized Debtors pursuant hereto will
be assumed on the Effective Date and paid or performed by the applicable
Reorganized Debtor when due in accordance with the terms and conditions of the
particular agreements governing such obligations.
Except as provided herein, Holders of Administrative Claims that arose
on or before October 31, 2003 to which the First Administrative Bar Date did not
apply and Holders of Administrative Claims that arose after October
12
31, 2003 that have not been paid as of the Effective Date, must file an
Administrative Claim by the Second Administrative Bar Date. If an Administrative
Claim is not timely filed by the First Administrative Bar Date or the Second
Administrative Bar Date, as applicable, then such Administrative Claim shall be
forever barred and shall not be enforceable against the Debtors or the
Reorganized Debtors, their successors, their assigns or their property. The
foregoing requirements to file Administrative Claims by the relevant bar date
shall not apply to the (i) Administrative Claims of Professionals retained
pursuant to sections 327 and 328 of the Bankruptcy Code; (ii) expenses of
members of the Official Committee of Unsecured Creditors; (iii) all fees payable
and unpaid under 28 U.S.C. Section 1930; (iv) any fees or charges assessed
against the estates of the Debtors under 28 U.S.C. Section 123; (v) Intercompany
Claims between Debtors and their affiliates; and (vi) Administrative Claims
arising in the ordinary course of business relating to inventory, services or
supplies provided by trade vendors or service providers which are paid or
payable by the Debtors in the ordinary course of business. An objection to an
Administrative Claim filed pursuant to this provision must be filed and properly
served within 220 days after the Effective Date. The Debtors and the Post
Confirmation Representative, as applicable, reserve the right to seek an
extension of such time to object.
All Professionals that are awarded compensation or reimbursement by the
Bankruptcy Court in accordance with sections 330, 331 or 363 of the Bankruptcy
Code that are entitled to the priorities established pursuant to sections
503(b)(2), 503(b)(3), 503(b)(4), or 503(b)(5) of the Bankruptcy Code, shall be
paid in full, in Cash, the amounts allowed by the Bankruptcy Court: (a) on or as
soon as reasonably practicable following the later to occur of (i) the Effective
Date; and (ii) the date upon which the Bankruptcy Court order allowing such
Claim becomes a Final Order; or (b) upon such other terms as may be mutually
agreed upon between such Professional and the Reorganized Debtors. On or before
the Effective Date and prior to any distribution being made under the Plan, the
Debtors shall escrow into the Professional Fee Escrow Account, the Carve-Out and
the Additional Carve-Out as outlined in the Final DIP Order and any additional
estimated accrued amounts owed to Professionals through the Effective Date.
Except as otherwise provided by Court order for a specific
Professional, Professionals or other entities requesting compensation or
reimbursement of expenses pursuant to sections 327, 328, 330, 331, 503(b) and
1103 or 363 of the Bankruptcy Code for services rendered prior to the
Confirmation Date must file and serve an application for final allowance of
compensation and reimbursement of expenses no later than forty-five (45) days
after the Effective Date. All such applications for final allowance of
compensation and reimbursement of expenses will be subject to the authorization
and approval of the Court. Any objection to the Claims of Professionals shall be
filed on or before thirty (30) days after the date of the filing of the
application for final compensation.
Allowed Administrative Claims, which shall be paid in full under the
Plan, are currently estimated to be in the range of $96 to $125 million as of
the Effective Date.(2)
B. Priority Tax Claims
In full satisfaction, settlement, release, and discharge of, and in
exchange for, each Allowed Priority Tax Claim that is due and payable on or
prior to the Effective Date: (i) if payment of the Allowed Priority Tax Claim is
not secured or guaranteed by a surety bond or other similar undertaking,
commencing on the Effective Date or as soon as practicable thereafter, the
Holder of such Claim shall be paid the principal amount of such Claim plus
simple interest on any outstanding balance from the Effective Date calculated at
the interest rate available on ninety (90) day United States Treasuries on the
Effective Date, in quarterly deferred Cash payments over a period not to exceed
six years after the date of assessment of the tax on which such Claim is based,
unless the Debtor and Holder mutually agree to a different treatment or as
otherwise ordered by the Court; (ii) if payment of the Allowed Priority Tax
Claim is secured or guaranteed by a surety bond or other similar undertaking,
the Holder of the Allowed Priority Tax Claim shall be required to seek payment
of its Claim from the surety in the first instance and only after exhausting all
right to payment from its surety bond or other similar undertaking shall the
Holder be permitted to seek payment from the Debtors under this Plan as a holder
of an Allowed Priority Tax Claim and the remainder
- ---------------------------
(2) This estimate does not include accounts payable and accrued liabilities
incurred in the ordinary course of business and carried through the
Effective Date by Core-Mark Newco.
13
owing on an Allowed Claim after deducting all payments received from the surety,
shall be treated as outlined in clause (i) above.
Allowed Priority Tax Claims, which shall be paid in full under the
Plan, are currently estimated to be in the range of $11 to 13 million as of the
Effective Date.
C. DIP Claims
On the Effective Date, or as soon as practicable thereafter, each
Holder of an Allowed DIP Claim shall be paid in full in Cash in full
satisfaction, settlement, release and discharge of and in exchange for each and
every Allowed DIP Claim, unless such Holder consents to other treatment.
Allowed DIP Claims, which are comprised of letters of credit
outstanding and which shall be paid in full under the Plan, are currently
estimated to be in the range of $25 to 30 million as of the Effective Date.
ARTICLE III
CLASSIFICATION AND TREATMENT
OF CLASSIFIED CLAIMS AND EQUITY INTERESTS
A. Summary
Class Status Voting Rights
Class 1(A) -- Other Priority Non-Tax Claims Unimpaired -- not entitled to vote
Class 1(B) -- Property Tax Claims Impaired -- entitled to vote
Class 2 -- Pre-Petition Lenders' Secured Claims Unimpaired -- not entitled to vote
Class 3(A) -- Other Secured Claims that are not Unimpaired -- not entitled to vote
Class 1(B) Claims
Class 3(B) -- Approved Trade Creditor Reclamation Impaired -- entitled to vote
Lien Claims
Class 3(C) -- DSD Trust Claims Impaired -- entitled to vote
Class 4 -- PACA/PASA Claims Unimpaired -- not entitled to vote
Class 5 -- Reclamation Claims that are not Class Impaired -- entitled to vote
3(B) Claims
Class 6 -- General Unsecured Claims Impaired -- entitled to vote
Class 7 -- Convenience Claims Impaired -- entitled to vote
Class 8 -- Equity Interests Impaired -- not entitled to vote
Class 9 -- Intercompany Claims Impaired -- not entitled to vote
Class 10 -- Other Securities Claims and Interests Impaired -- not entitled to vote
B. Classification and Treatment
1. Class 1(A) -- Other Priority Non-Tax Claims
(a) Classification: Class 1(A) consists of all Allowed
Other Priority Non-Tax Claims.
14
(b) Treatment: In full satisfaction, settlement, release, and
discharge of, and in exchange for, each Allowed Other Priority Non-Tax
Claim that is due and payable on or prior to the Effective Date, on the
Effective Date or as soon as practicable thereafter, the Holder of such
Claim shall be paid the principal amount of such Claim, unless the
Holder consents to other treatment.
(c) Voting: Class 1(A) is not impaired and the Holders of
Class 1(A) Claims are conclusively deemed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the
Holders of Claims in Class 1(A) are not entitled to vote to accept or
reject the Plan.
(d) Claims Estimate: Allowed Class 1(A) Claims are currently
estimated to be in the range of $6 to 15 million as of the Effective
Date.
2. Class 1(B) -- Property Tax Claims
(a) Classification: Class 1(B) consists of all Allowed
Property Tax Claims.
(b) Treatment: In full satisfaction, settlement, release, and
discharge of, and in exchange for, each Allowed Property Tax Claim that
is due and payable on or prior to the Effective Date, commencing on the
Effective Date or as soon as practicable thereafter, the Holder of such
Allowed Property Tax Claim shall be paid the principal amount of such
Claim plus simple interest on any outstanding balance from the
Effective Date calculated at the interest rate available on ninety (90)
day United States Treasuries on the Effective Date, in quarterly
deferred Cash payments over a period not to exceed six years after the
date of assessment of the tax on which such Claim is based, unless the
Debtor and Holder mutually agree to a different treatment.
(c) Voting: Class 1(B) is impaired and the Holders of Class
1(B) Claims are entitled to vote to accept or reject the Plan.
(d) Claims Estimate: Allowed Class 1(B) Claims are currently
estimated to be in the range of $5-6 million as of the Effective Date.
3. Class 2 -- Pre-Petition Lenders' Secured Claims
(a) Classification: Class 2 consists of all Allowed
Pre-Petition Lenders' Secured Claims.
(b) Treatment: On the Effective Date, or as soon as
practicable thereafter, unless such Holder consents to other treatment,
each Holder of an Allowed Pre-Petition Lenders' Secured Claim shall be
paid in full and shall either (i) assign its liens in the Debtors'
assets to the lender under the Exit Financing Facility or (ii) assign
its liens in the Debtors' assets to Core-Mark Newco, which liens as
assigned shall have the same validity and priority as such liens held
by the Holders of the Class 2 Claims, and which liens as assigned shall
be subject to further transfer to the Post Confirmation Trust, as
applicable.
Any default with respect to any Class 2 Claim that existed immediately
prior to the filing of the Chapter 11 Cases shall be deemed cured upon
the Effective Date.
(c) Voting: Class 2 is not impaired and the Holders of Class 2
Claims are conclusively deemed to have accepted the Plan pursuant to
section 1126(f) of the Bankruptcy Code. Therefore, the Holders of
Claims in Class 2 are not entitled to vote to accept or reject the
Plan.
(d) Claims Estimate: Allowed Class 2 Claims which shall be
paid in full under the Plan are currently estimated to be approximately
$200-220 million as of the Effective Date.
4. Class 3(A) -- Other Secured Claims that are not Class 1(B)
Claims
(a) Classification: Class 3(A) consists of all Allowed Other
Secured Claims that are not Class 1(B) Claims.
15
(b) Treatment: On the Effective Date or as soon as practicable
thereafter, each Holder of an Allowed Other Secured Claim that is not a
Class 1(B) Claim (e.g. PMSI Holders, equipment financing lenders, etc.)
shall receive one of the following treatments, at the Debtors' option,
such that they shall be rendered unimpaired pursuant to section 1124 of
the Bankruptcy Code: (i) the payment of such Holder's Allowed Other
Secured Claim in full, in Cash; (ii) the sale or disposition proceeds
of the property securing such Allowed Other Secured Claim to the extent
of the value of the Holder's interests in such property; or (iii) the
surrender to the Holder of the property securing such Claim.
(c) Voting: Class 3(A) is unimpaired and Holders of Class 3(A)
Claims are conclusively deemed to have accepted the Plan pursuant to
section 1126(f) of the Bankruptcy Code. Therefore, the Holders of
Claims in Class 3(A) are not entitled to vote to accept or reject the
Plan.
(d) Claims Estimate: Allowed Class 3(A) Claims are currently
estimated to be in the range of $750,000 to $2 million as of the
Effective Date.
5. Class 3(B) -- Approved Trade Creditor Reclamation Lien Claims
(a) Classification: Class 3(B) consists of all Allowed
Approved Trade Creditor Reclamation Lien Claims.
(b) Treatment: On the Effective Date, or as soon as
practicable thereafter, the Post Confirmation Trust, shall issue the
Class 3B Preferred Interests in favor of the Holders of Allowed
Approved Trade Creditor Reclamation Lien Claims in the estimated
aggregate amount of such Allowed Claims under the terms and conditions
of the 3B Preferred Interests Term Sheet (with the interests to be
reissued as such Claims are Allowed by Final Order or settlement) and
grant a first priority lien to such Holders on the Post Confirmation
Trust Distributable Assets entitling each Holder of an Allowed Approved
Trade Creditor Reclamation Lien Claim to its Ratable Proportion of the
Post Confirmation Trust Distributable Assets up to the total amount of
each Holders' Allowed Approved Trade Creditor Reclamation Lien Claim,
in full satisfaction, settlement, release and discharge of each Allowed
Approved Trade Creditor Reclamation Lien Claim, unless such Holder
agrees to other treatment, and subject at the Debtors' option, to
reduction for unpaid post-petition deductions, preference payments and
other applicable setoff rights.
As additional security for the Class 3B Preferred Interests,
Core-Mark Newco shall provide a junior secured guarantee under the
terms outlined in the Class 3B Preferred Interests Term Sheet.
(c) Voting: Class 3(B) is impaired and Holders of Class 3(B)
Claims are entitled to vote to accept or reject the Plan.
(d) Claims Estimate: Allowed Class 3(B) Claims are currently
estimated to be in the range of $43-55 million as of the Effective Date
prior to setoffs which may be available to the Debtors and will be paid
in full under the Plan by the Post Confirmation Trust or Core-Mark
Newco as outlined in the Disclosure Statement and the Class 3(B)
Preferred Interests Term Sheet filed therewith.
6. Class 3 (C) -- DSD Trust Claims
(a) Classification: Class 3(C) consists of all Allowed DSD
Trust Claims.
(b) Treatment: Each Holder of an Allowed DSD Trust Claim shall
be paid in full satisfaction, settlement, release and discharge of each
Allowed DSD Trust Claim in Cash their Ratable Proportion of the DSD
Settlement Fund as outlined in the DSD Settlement Agreement.
(c) Voting: Class 3(C) is impaired and Holders of Claims in
Class 3(C) are entitled to vote to accept or reject the Plan.
(d) Claims Estimate: The DSD Settlement Fund pursuant to the
DSD Settlement Agreement shall be in the amount of $17.5 million.
16
7. Class 4 -- PACA/PASA Claims
(a) Classification: Class 4 consists of all Allowed PACA/PASA
Claims.
(b) Treatment: In full satisfaction, settlement, release, and
discharge of, and in exchange for, each Allowed PACA/PASA Claim that is
due and payable on or prior to the Effective Date, on the Effective
Date or as soon as practicable thereafter, the Holder of such Claim
shall be paid the principal amount of such Claim, unless the Holder
consents to other treatment.
(c) Voting: Class 4 is unimpaired and Holders of Allowed
Claims in Class 4 are conclusively deemed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the
Holders of Claims in Class 4 are not entitled to vote to accept or
reject the Plan.
(d) Claims Estimate: Allowed Class 4 Claims which shall be
paid in full under the Plan are currently estimated to be in the range
of $8-$14 million as of the Effective Date.
8. Class 5 -- Valid Reclamation Claims that are not Class 3(B)
Claims
(a) Classification: Class 5 consists of Allowed Valid
Reclamation Claims that are not Class 3(B) Claims.
(b) Treatment: To the extent the Court determines that the
Holders of Reclamation Claims that are not Class 3(B) Claims are
entitled to priority treatment, on the Effective Date, or as soon as
practicable thereafter, the Post Confirmation Trust, shall issue the
Class 5 Preferred Interests in favor of such Holders in the estimated
aggregate amounts of their Allowed Claims under the terms and
conditions of the Class 5 Preferred Interests Term Sheet (with the
interests to be reissued as such Claims are Allowed by Final Order or
settlement) and grant a second priority lien on the Post Confirmation
Trust Distributable Assets entitling each Holder to its Ratable
Proportion of the Post Confirmation Trust Distributable Assets after
all Class 3(B) Claims are paid in full.
As additional security for the Class 5 Preferred Interests in
the event the Court determines that the Holders of Class 5 Claims are
entitled to priority treatment, Core-Mark Newco shall provide a junior
secured guarantee under the terms outlined in the Class 5 Preferred
Interests Term Sheet.
In the event the Court denies the Holders of Reclamation
Claims that are not Class 3(B) Claims priority treatment, such
Reclamation Claims shall be treated as Class 6 Claims hereunder, and
any ballots cast by Holders of Class 5 Claims shall be counted as
ballots cast by Holders of Class 6 Claims.
(c) Voting: Class 5 is impaired and Holders of Allowed Claims
in Class 5 are entitled to vote to accept or reject the Plan.
(d) Claims Estimate: Allowed Class 5 Claims are currently
estimated to be in the range of $0-$80 million as of the Effective Date
prior to giving affect to all of the Debtors' prepetition deductions,
and to the extent the Court determines the Holders of Class 5 Claims
are entitled to priority treatment, the Holders of Class 5 claims will
be paid in full under the Plan by the Post-Confirmation Trust or
Core-Mark Newco as outlined in the Disclosure Statement and the Class 5
Preferred Interests Term Sheet filed therewith.(3)
9. Class 6 -- General Unsecured Claims other than Convenience
Claims
(a) Classification: Class 6 consists of all Allowed General
Unsecured Claims other than Convenience Claims.
- -----------------------
(3) As per the November 21, 2003 Reclamation Claims Summary report filed with
the Court by the Debtors, this estimate is net of setoff of prepetition
deductions.
17
(b) Treatment: On the Effective Date, or as soon as
practicable thereafter, each Holder of an Allowed General Unsecured
Claim other than Convenience Claims shall be paid in full satisfaction,
settlement, release, and discharge of and in exchange for each and
every Allowed General Unsecured Claim other than Convenience Claims, at
the Debtors' option, in one or a combination of the following manners:
(i) issuance of a Ratable Proportion of New Common Stock subject to
dilution from the issuance of warrants to the Tranche B Lenders and
through the Management Incentive Plan; and/or (ii) in the event the
Debtors, with the consent of the Creditors Committee, elect to sell
some or all of their assets as outlined herein, a Ratable Proportion of
Cash remaining from the sale of such assets after all of the Allowed
Unclassified Claims and Claims of Holders in Classes 1 through 5 have
been satisfied in full.
(c) As additional consideration, each Holder of an Allowed
General Unsecured Claim shall be entitled to a Ratable Proportion of
Excess Proceeds (as defined in the Post Confirmation Trust Agreement),
if any, available from the Post Confirmation Trust after payment by the
Post Confirmation Trust of all claims and obligations required to be
made by the Post Confirmation Trust under the Plan, the Post
Confirmation Trust Agreement, or otherwise, as set forth in the Post
Confirmation Trust Agreement.
(d) Voting: Class 6 is impaired and Holders of Claims in Class
6 are entitled to vote to accept or reject the Plan.
(e) Claims Estimate: Allowed Class 6 Claims are currently
estimated to be in the range of $2.6-$3.2 billion as of the Effective
Date. Based on this estimated range of Allowed Claims and the estimated
value of New Common Stock, the Holders of Class 6 Claims shall be
receiving stock on the Effective Date in Core-Mark Newco with a value
equal to approximately 4% to 7% of the Allowed Amount of each such
Holders' Claim.
10. Class 7 - Convenience Claims
(a) Classification: Class 7 consists of all General Unsecured
Claims, other than the Claims of Holders of Old Notes, of $5000 or less
held by a single Holder. Holders of Old Notes and General Unsecured
Claims in excess of $5,000 may not opt into Class 7.
(b) Treatment: On or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 7 Claim shall receive,
in full and final satisfaction of such Claim, a Cash distribution equal
to 10% of the amount of its Class 7 Claim, provided however, the
aggregate amount of such Allowed Class 7 Claims shall not exceed
$10,000,000. If the aggregate amount of the Allowed Class 7 Claims
exceeds $10,000,000, each Holder of an Allowed Class 7 Claim shall
receive its Ratable Proportion of $1,000,000.
(c) Voting: Class 7 is impaired, and Holders of Class 7 Claims
are entitled to vote to accept or reject the Plan.
(d) Claims Estimate: Allowed Class 7 Claims are currently
estimated to be in the range of $5-$10 million as of the Effective
Date.
11. Class 8 - Equity Interests
(a) Classification: Class 8 consists of all Equity Interests.
(b) Treatment: Receives no distribution and are canceled as of
the Effective Date.
(c) Voting: Class 8 is impaired, but because no distributions
will be made to Holders of Class 8 Equity Interests nor will such
Holders retain any property, such Holders are deemed to reject the Plan
pursuant to section 1126(g) of the Bankruptcy Code. Class 8 is not
entitled to vote to accept or reject the Plan.
12. Class 9 - Intercompany Claims
(a) Classification: Class 9 consists of all Intercompany
Claims.
18
(b) Treatment: Receives no distribution and are canceled as of
the Effective Date.
(c) Voting: Class 9 is impaired, but because no distributions
will be made to Holders of Class 9 Claims nor will such Holders retain
any property, such Holders are deemed to reject the Plan pursuant to
section 1126(g) of the Bankruptcy Code. Class 9 is not entitled to vote
to accept or reject the Plan.
13. Class 10 - Other Securities Claims and Interests
(a) Classification: Class 10 consists of all Other Securities
Claims and Interests of whatever kind or nature.
(b) Treatment: Receives no distribution and are cancelled and
discharged as of the Effective Date.
(c) Voting: Class 10 is impaired, but because no distributions
will be made to Holders of Class 10 Claims, such Holders are deemed to
reject the Plan pursuant to section 1126(g) of the Bankruptcy Code.
Class 10 is not entitled to vote to accept or reject the Plan.
C. Special Provision Governing Unimpaired Claims
Except as otherwise provided in the Plan, nothing under the Plan shall
affect the Debtors' or the Reorganized Debtors' rights in respect of any
Unimpaired Claims, including, but not limited to, all rights in respect of legal
and equitable defenses to, or setoffs or recoupments against, such Unimpaired
Claims.
ARTICLE IV.
ACCEPTANCE OR REJECTION OF THE PLAN
A. Voting Classes
Each Holder of an Allowed Claim in Classes 1(B), 3(B), 3(C), 5, 6 and 7
shall be entitled to vote to accept or reject the Plan.
B. Acceptance by Impaired Classes
An Impaired Class of Claims shall have accepted the Plan if (a) the
Holders (other than any Holder designated under section 1126(e) of the
Bankruptcy Code) of at least two-thirds in amount of the Allowed Claims actually
voting in such Class have voted to accept the Plan and (b) the Holders (other
than any Holder designated under section 1126(e) of the Bankruptcy Code) of more
than one-half in number of the Allowed Claims actually voting in such Class have
voted to accept the Plan.
C. Presumed Acceptance of Plan
Classes 1(A), 2, 3(A) and 4 are unimpaired under the Plan and,
therefore, are presumed to have accepted the Plan pursuant to section 1126(f) of
the Bankruptcy Code.
D. Presumed Rejection of Plan
Classes 8, 9 and 10 are impaired and shall receive no distributions
and, therefore, are presumed to have rejected the Plan pursuant to section
1126(g) of the Bankruptcy Code.
E. Non-Consensual Confirmation
The Debtors and the Committee will seek Confirmation of the Plan under
section 1129(b) of the Bankruptcy Code, to the extent applicable based on the
deemed rejection by Classes 8, 9 and 10 and if any Voting Class fails to accept
the Plan in accordance with section 1129(a)(8) of the Bankruptcy Code. The
Debtors and the Committee reserve the right (a) to request that the Bankruptcy
Court confirm the Plan in accordance with section 1129(b) of the Bankruptcy Code
and/or (b) to modify the Plan in accordance with section XIV.D. hereof.
19
ARTICLE V.
MEANS FOR IMPLEMENTATION OF THE PLAN
A. Substantive Consolidation
This Plan is premised upon the limited substantive consolidation of the
Debtors solely for purposes of actions associated with the Confirmation of this
Plan and occurrence of the Effective Date, including, but not limited to,
voting, confirmation and distribution. As a result of this limited substantive
consolidation, a Holder of Claims against one or more of the Debtors arising
from or relating to the same underlying debt that would otherwise constitute
Allowed Claims against two or more Debtors, including, without limitation,
Claims based on joint and several liability, contribution, indemnity,
subrogation, reimbursement, surety, guaranty, co-maker and similar concepts,
shall have only one Allowed Claim on account of such Claims. This Plan does not
contemplate the merger or dissolution of any Debtor which is currently operating
or which currently owns operating assets or the transfer or further commingling
of any asset of any Debtor, except that the assets of Fleming and certain Filing
Subsidiaries already being used by Fleming Convenience in its operations shall
be formally vested in Core-Mark Newco, or one of the Reorganized Debtors and
except to accomplish the distributions under this Plan. Such limited substantive
consolidation shall not affect (other than for Plan voting, treatment, and/or
distribution purposes) (i) the legal and corporate structures of the Reorganized
Debtors or (ii) Equity Interests in the Filing Subsidiaries.
This Plan shall serve as a motion seeking entry of an order
substantively consolidating the Chapter 11 Cases, as described herein. Unless an
objection to substantive consolidation is made in writing by any creditor
affected by this Plan as herein provided on or before 10 days prior to the date
that is fixed by the Bankruptcy Court as the last date on which acceptances to
this Plan may be received, or such other date as may be fixed by the Bankruptcy
Court, the substantive consolidation order (which may be the Confirmation Order)
may be entered by the Bankruptcy Court. In the event any such objections are
timely filed, a hearing with respect thereto shall be scheduled by the
Bankruptcy Court, which hearing may, but need not, coincide with the
Confirmation Hearing.
B. Continued Corporate Existence and Vesting of Assets in the Reorganized
Debtors
Each Reorganized Debtor shall continue to exist after the Effective
Date as a separate legal entity, each with all the powers of a corporation or
partnership, as applicable, under the laws of its respective jurisdiction of
organization and without prejudice to any right to alter or terminate such
existence (whether by merger or otherwise) under such applicable state law.
Except as otherwise provided in the Plan, on and after the Effective Date all
property of the Estate and any property acquired by the Reorganized Debtors
under the Plan shall vest in the applicable Reorganized Debtor, free and clear
of all Claims, liens, charges, or other encumbrances. On and after the Effective
Date, the Reorganized Debtors may operate their respective businesses and may
use, acquire or dispose of property without supervision or approval by the
Bankruptcy Court and free of any restrictions of the Bankruptcy Code or
Bankruptcy Rules, other than those restrictions expressly imposed by the Plan
and the Confirmation Order.
C. Cancellation of Old Notes, Old Stock and Other Equity Interests
On the Effective Date, except to the extent otherwise provided herein,
all notes, instruments, certificates, and other documents evidencing (a) the Old
Notes, (b) the Old Stock and (c) any stock options, warrants or other rights to
purchase Old Stock shall be canceled and the obligations of the Debtors
thereunder or in any way related thereto shall be discharged. On the Effective
Date, except to the extent otherwise provided herein, any indenture relating to
any of the foregoing, including, without limitation, the Indentures, shall be
deemed to be canceled, as permitted by section 1123(a)(5)(F) of the Bankruptcy
Code, and the obligations of the Debtors thereunder, except for the obligation
to indemnify the Old Notes Trustees, shall be discharged; provided that the
indentures that govern the rights of the Holder of a Claim and that are
administered by the Old Notes Trustees, an agent or servicer shall continue in
effect solely for the purposes of (y) allowing the Old Notes Trustees, agent or
servicer to make the distributions to be made on account of such Claims under
the Plan and to perform such other necessary administrative functions with
respect thereto and (z) permitting the Old Notes Trustees, agent or servicer to
maintain any rights or liens it may have for fees, costs and expenses under such
Indenture or other agreement. Any fees or expenses due to any of the Old Notes
Trustees, agent or servicer shall be paid directly by the Debtors and shall not
be deducted from any distributions to the Holders of Claims and Equity
Interests.
20
D. Issuance of New Securities; Execution of Related Documents
On or as soon as practicable after the Effective Date, Core-Mark Newco
shall issue all securities, notes, instruments, certificates and other documents
of Core-Mark Newco required to be issued pursuant hereto, including, without
limitation, the New Common Stock, which shall be distributed as provided herein.
Core-Mark Newco shall execute and deliver such other agreements, documents and
instruments, as is necessary to effectuate the Plan.
E. Restructuring Transactions
On or before the Effective Date, Fleming intends to (i) dissolve all
other of its direct or indirectly wholly owned Debtor subsidiaries other than
(a) Core-Mark International, Inc.; (b) Core-Mark Mid Continent, Inc.; (c)
General Acceptance Corporation; (d) Core-Mark Interrelated Companies, Inc.; (e)
CM Products, Inc.; (f) ASI Office Automation, Inc.; (g) E.A. Morris Distributors
Limited; (h) Head Distributing Company; (i) Marquise Ventures Company, Inc.; and
(j) Minter-Weisman Co. and (ii) transfer the convenience store assets that are
part of its Leitchfield, Kentucky Division to either Core-Mark International,
Inc. or one of the Reorganized Debtors. The specific recipient of these assets
will be determined prior to the Confirmation Date.
On or before the Effective Date, Core-Mark Newco, a Delaware
corporation, shall be formed by certain of the Debtors' creditors or a nominee
on their behalf. Core-Mark Newco shall then form two wholly-owned subsidiaries,
Core-Mark Holdings I and Core-Mark Holdings II, both Delaware corporations, and
make a capital contribution of its stock to these entities. Core-Mark Holdings I
and Core-Mark Holdings II shall form another subsidiary, Core-Mark Holdings III,
owned equally by Core-Mark Holdings I and Core-Mark Holdings II, and shall make
a capital contribution of the stock of Core-Mark Newco to Core-Mark Holdings
III. On the Effective Date, Fleming will transfer the stock of the Reorganized
Debtors to Core-Mark Holdings III and Fleming will receive, in exchange for such
stock, stock of Core-Mark Newco. Core-Mark Holding III will retain a portion of
Core-Mark Newco's stock to satisfy disputed claims and hold such stock for the
benefit of the holders of Class 6 General Unsecured Claims. Fleming will
distribute the Core-Mark Newco stock received from Core-Mark Holdings III to its
creditors in accordance with the Plan of Reorganization. Core-Mark Holdings III
will transfer stock of Core-Mark Newco to holders of Class 6 General Unsecured
Claims as such claims are resolved. Once these transactions have occurred, the
creditors of Fleming, participants in the Management Incentive Plan and persons
acquiring Core-Mark Newco equity as a result of the exercise of warrants will be
the owners of Core-Mark Newco, which will act as the holding company for the
convenience store business. Core-Mark Newco will then own 100% of each of
Core-Mark Holdings I and Core-Mark Holdings II, and those two entities will each
own 50% of stock of Core-Mark Holdings III. Core-Mark Holdings III will own the
Reorganized Debtors.
On or after the Effective Date, the Reorganized Debtors may continue to
enter into such transactions and may continue to take such actions as may be
necessary or appropriate to effect a further corporate restructuring of their
respective businesses, including actions necessary to simplify, reorganize and
rationalize the overall reorganized corporate structure of the Reorganized
Debtors. While the Debtors are presently evaluating potential restructuring
transactions, the contemplated transactions may include (i) dissolving various
additional unnecessary subsidiary companies, including certain of the
Reorganized Debtors, (ii) filing appropriate certificates or articles of merger,
consolidation or dissolution pursuant to applicable state law and (iii) any
other action reasonably necessary or appropriate in connection with the
contemplated transactions. In each case in which the surviving, resulting or
acquiring corporation in any of these transactions is a successor to a
Reorganized Debtor, such surviving, resulting or acquiring corporation will
perform the obligations of the applicable Reorganized Debtor pursuant to the
Plan, to pay or otherwise satisfy the Allowed Claims against such Reorganized
Debtor.
.
F. Corporate Governance, Directors and Officers, and Corporate Action
1. Amended Certificate of Incorporation and By-laws
After the Effective Date, the Reorganized Debtors, as applicable, may,
if necessary, reincorporate in their respective states of incorporation and file
their Restated Certificates of Incorporation with the Secretary of State in the
state in which they are incorporated. After the Effective Date, the Reorganized
Debtors may, if necessary,
21
amend and restate their Restated Certificates of Incorporation and other
constituent documents as permitted by applicable law.
2. Directors and Officers of the Reorganized Debtors
Subject to any requirement of Bankruptcy Court approval pursuant to
section 1129(a)(5) of the Bankruptcy Code, as of the Effective Date, the
principal officers of the Debtors immediately prior to the Effective Date will
be the officers of the Reorganized Debtors. The principal officers of Core-Mark
Newco are presently anticipated to be the following: J. Michael Walsh, President
and Chief Executive Officer; Henry Hautau, Vice President, Employee and
Corporate Services and Assistant Secretary; Stacy Loretz-Congdon, Treasurer and
Assistant Secretary; Gregory P. Antholzner, Controller and Assistant Secretary;
Basil P. Prokop, President, Canada Division; Tom Barry, Vice President, National
Accounts; Gerald Bolduc, Vice President, Information Technology and Chief
Information Officer; David W. Dresser, Vice President, Merchandising; Thomas
Small, Vice President, Operations; Chris Walsh, Vice President, Marketing; Tom
Perkins, Vice President, U.S. Divisions; Scott McPherson, Vice President, U.S.
Divisions; and Cyril Wan, Assistant Secretary.
Pursuant to section 1129(a)(5) of the Bankruptcy Code, the Debtors will
disclose, on or prior to the Confirmation Date, the identity and affiliations of
any Person proposed to serve on the initial board of directors of Core-Mark
Newco and each Reorganized Debtor. The initial board of directors of Core-Mark
Newco is presently contemplated to consist of five members, the Chief Executive
Officer of Core-Mark Newco, two representatives selected by the Committee and
two independent directors to be mutually agreed upon by the Debtors and the
Committee. To the extent any such Person is an "insider" under the Bankruptcy
Code, the nature of any compensation for such Person will also be disclosed.
Each such director and officer shall serve from and after the Effective Date
pursuant to the terms of such Reorganized Debtor's certificate of incorporation
and other constituent documents.
3. Corporate Action
After the Effective Date, the adoption and filing, if necessary, of any
of the Reorganized Debtors' Restated Certificates of Incorporation, the approval
of their Restated By-laws, the appointment of directors and officers for
Core-Mark Newco, the adoption of the Management Incentive Plan, and all other
actions contemplated hereby with respect to each of the Reorganized Debtors
shall be authorized and approved in all respects (subject to the provisions
hereof). All matters provided for herein involving the corporate structure of
any Debtor or any Reorganized Debtor, and any corporate action required by any
Debtor or any Reorganized Debtor in connection with the Plan, shall be deemed to
have occurred and shall be in effect, without any requirement of further action
by the security holders or directors of such Debtor or Reorganized Debtor. On
the Effective Date, the appropriate officers of each Reorganized Debtor and
members of the board of directors of each Reorganized Debtor are authorized and
directed to issue, execute and deliver the agreements, documents, securities and
instruments contemplated by the Plan in the name of and on behalf of such
Reorganized Debtor.
G. Post Confirmation Trust
1. Formation/Purpose
On the Effective Date or as soon as practicable thereafter, the Debtors
and the Committee will form a Post Confirmation Trust to administer certain
post-confirmation responsibilities under the Plan, including, but not
necessarily limited to, those responsibilities associated with the pursuit and
collection of the Litigation Claims and Causes of Action and the reconciliation
and payment of Claims.
2. Powers
The powers, authority, responsibilities and duties of the Post
Confirmation Trust and the allocation of such powers, authority,
responsibilities and duties between Core-Mark Newco and the Post Confirmation
Trust, shall be set forth and governed by the Post Confirmation Trust Agreement
to be mutually agreed upon by the Debtors and the Committee. A copy of the draft
Post Confirmation Trust Agreement is attached to the Disclosure Statement as
Exhibit 9. The Debtors and the Committee shall also mutually agree upon
appointment of the Post Confirmation Representative who shall have the power to
administer the Post Confirmation Trust and will be advised by the Post
22
Confirmation Trust Advisory Board as specified in the Post Confirmation Trust
Agreement. The Post Confirmation Trust Advisory Board shall consist of four
members plus the Post Confirmation Representative, two members designated by
Core-Mark Newco, one member designated by the Committee other than trade members
and the PBGC, who shall be an Old Note Holder that holds in excess of [3.5%] or
greater of the total outstanding equity securities of Core-Mark Newco received
as a result of the distribution of such equity to Holders of Class 6 Claims
under the Plan and one member to be designated by the trade members of the
Committee and the PBGC, who shall be a Holder of a Class 6 Claim, other than
with respect to the Old Notes, against which there is not pending (or against
which the Debtors or the Post-Confirmation Trust do not reasonably contemplate
bringing) a Cause of Action and is not a Holder of a Class 3(B) or Class 5
Claim.
Pursuant to section 1129(a)(5) of the Bankruptcy Code, the Debtors will
disclose, on or prior to the Confirmation Date, the identity and any
affiliations of any Person proposed to serve on the initial Post Confirmation
Trust Advisory Board as well as the identity and affiliations of the Post
Confirmation Representative. To the extent any such Person is an "insider" under
the Bankruptcy Code, the nature of any compensation for such Person will also be
disclosed.
3. Assets of the Post Confirmation Trust
On the Effective Date or as soon as practicable thereafter, the
Debtors, the Reorganized Debtors and Core-Mark Newco, as applicable, shall
transfer, assign and deliver to the Post Confirmation Trust, the Post
Confirmation Trust Assets (the "PCT Assets") as outlined in the Post
Confirmation Trust Agreement. The PCT Assets shall consist of all of the
following assets of the Debtors:
(a) trade accounts receivable including credits for
post-petition deductions, other than the pre-petition and post petition
trade accounts receivable and post-petition deductions of the
continuing Fleming Convenience business;
(b) royalty payments owing to the Debtors related to the
sale of the Fleming wholesale operations;
(c) Litigation Claims which consist primarily of
vendor-related receivables, primarily for uncollected promotional
allowances (e.g. rebates, discounts, price reductions), unreimbursed
funds related to military receivables and funds wired in advance for
inventory for which invoices were not processed and inventory not
shipped, but not including vendor deductions incurred in the ordinary
course of business of the Fleming Convenience business which shall
remain with Core-Mark Newco;
(d) Avoidance Actions, especially preference actions as
outlined in section 547 of the Bankruptcy Code;
(e) restricted cash, including the PACA account, the FSA
and the FSA reserves;
(f) available cash in an amount necessary to fund certain
payments required to be made by the Post Confirmation Trust under the
Plan and Post Confirmation Trust Agreement and Post Confirmation Trust
Administrator;
(g) any and all other Claims and Causes of Action of the
Debtors, including but not limited to those outlined in section VI
hereof, Exhibit A hereto and section VII of the Disclosure Statement,
other than Causes of Action related to the fire loss at the Denver
warehouse occurring in December, 2002 which shall be transferred to
Core-Mark Newco, and other than claims and Causes of Action waived,
exculpated or released in accordance with the provisions of the Plan;
and
(h) all of the remaining assets of the Debtors, other
than the assets of the Reorganized Debtors and the assets of the
continuing Fleming Convenience businesses which will have been
transferred to Core-Mark Newco and the Reorganized Debtors.
The PCT Assets do not include: (1) any of the assets of the continuing Fleming
Convenience businesses which are to be transferred to Core-Mark Newco and the
Reorganized Debtors; (2) the stock of Core-Mark Newco and the
23
stock of the Reorganized Debtors; and (3) the Professional Fee Escrow Account.
The PCT Assets shall be held by the Post Confirmation Trust for the
beneficiaries of the Post Confirmation Trust subject to the terms and conditions
of the Plan and the Post Confirmation Trust Agreement.
4. Funding
On the Effective Date, or as soon as practicable thereafter, the
Debtors, the Reorganized Debtors and Core-Mark Newco will transfer to the Post
Confirmation Trust certain cash on hand and/or certain proceeds from the Exit
Financing Facility and the Tranche B Loan necessary for the Post Confirmation
Trust to make the payments required on Allowed Claims pursuant to the Plan and
the Post Confirmation Trust Agreement. In addition, the Post Confirmation Trust
shall have available the proceeds from the prosecution of Causes of Action.
Core-Mark Newco and the Reorganized Debtors shall retain the remainder of the
cash and/or proceeds from the Exit Financing Facility and the Tranche B Loan to
operate their businesses. The capital structure of Core-Mark Newco, the
Reorganized Debtors and the Post Confirmation Trust on the Effective Date is
outlined on Exhibit 3 to the Disclosure Statement.
H. Creation of Professional Fee Escrow Account
On or before the Effective Date, the Debtors shall establish and fund
the Professional Fee Escrow Account.
ARTICLE VI.
DEBTORS' RETAINED CAUSES OF ACTION
A. Maintenance of Causes of Action
Except as otherwise provided in the Plan, Core-Mark Newco, the
Reorganized Debtors and the Post Confirmation Trust, as applicable, shall retain
all rights on behalf of the Debtors, Core-Mark Newco and the Reorganized Debtors
to commence and pursue, as appropriate, in any court or other tribunal
including, without limitation, in an adversary proceeding filed in one or more
of the Debtors' Chapter 11 Cases, any and all Causes of Action, whether such
Causes of Action accrued before or after the Petition Date, including, but not
limited to, the actions specified in section VI.B. herein as well as those
Causes of Action listed on Exhibit A filed herewith.
Except as otherwise provided in the Plan, in accordance with section
1123(b)(3) of the Bankruptcy Code, any Claims, rights, and Causes of Action that
the respective Debtors, Core-Mark Newco and the Reorganized Debtors may hold
against any Person shall vest in Core-Mark Newco or the Post Confirmation Trust,
as applicable. Core-Mark Newco or the Post Confirmation Trust, as applicable,
shall retain and may exclusively enforce any and all such Claims, rights or
Causes of Action, and commence, pursue and settle the Causes of Action in
accordance with the Plan, provided the Post Confirmation Trust may commence,
pursue and settle certain Causes of Action, including, but not necessarily
limited to, the Litigation Claims as outlined more fully in the Post
Confirmation Trust Agreement. Core-Mark Newco and the Post Confirmation Trust,
as applicable, shall have the exclusive right, authority, and discretion to
institute, prosecute, abandon, settle, or compromise any and all such claims,
rights, and Causes of Action without the consent or approval of any third party
and without any further order of court.
B. Preservation of Causes of Action
The Debtors are currently investigating whether to pursue potential
Causes of Action against any Creditors, Entities, or other Persons, but not as
against the Releasees. The investigation has not been completed to date, and
under the Plan, Core-Mark Newco and the Post Confirmation Trust, as applicable,
retain the right on behalf of the Debtors and Reorganized Debtors to commence
and pursue any and all Causes of Action. Potential Causes of Action currently
being investigated by the Debtors, which may, but need not, be pursued by the
Debtors before the Effective Date or by Core-Mark Newco or the Post Confirmation
Trust, as applicable, after the Effective Date include, without limitation, the
following Causes of Action:
- All actual or potential avoidance actions 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
24
Bankruptcy Code, arising from any transaction involving or
concerning the Debtors, and among others, without limitation,
those entities listed on Exhibit A-3 and A-7;
- All actual or potential actions, whether legal, equitable or
statutory in nature, for, or in any way involving, the
collection of accounts receivable or general ledger items that
are due and owing to Fleming or its subsidiaries, including
without limitation trade receivables, rent and other lease and
sublease charges, franchise and/or license fees, payments due
under equipment leases and licenses, other miscellaneous
charges, and principal and interest on promissory notes by any
Person or Entity (collectively, the "Accounts Receivable"),
including, but not limited to, the Accounts Receivable owed by
those customers listed on Exhibit A-1 and A-2 hereto;
- All actual actions or potential actions, whether legal,
equitable or statutory in nature, against customers,
including, but not limited to, those customers listed in
Exhibit A-1 and A-2, for Accounts Receivable, improper setoff,
overpayment, claims under the facility standby agreement, or
any other claim arising out of the customer relationship;
- All actual actions or potential actions, whether legal,
equitable or statutory in nature, against vendors, including,
but not limited to, those vendors listed on Exhibit A-4
hereto, for overpayment, improper setoff, warranty, indemnity,
retention of double payments, retention of mis-directed wires,
deductions owing or improper deductions taken, claims for
damages arising out of a military distribution relationship,
claims for overpayment of drop-ship-delivery amounts, or any
other claim arising out of the vendor relationship;
- All actual actions or potential actions against vendors for
violation of the Trade Credit Program or the Trade Credit
Program Letter Agreement as set forth in the Final Order
Authorizing (I) Post- Petition Financing Pursuant To 11 U.S.C.
Section 364 And Bankruptcy Rule 4001(c); (II) Use Of Cash
Collateral Pursuant To 11 U.S.C. Section 363 And Bankruptcy
Rules 4001(b) And (d); (III) Grant Of Adequate Protection
Pursuant To 11 U.S.C. Sections 361 And 363; And (IV) Approving
Secured Inventory Trade Credit Program And Granting Of
Subordinate Liens, Pursuant To 11 U.S.C. Sections 105 And
364(c)(3) And Rule 4001(c) entered on May 7, 2003 and the
Order Granting Motion for Order Authorizing the Payment of
Critical Trade Vendors in Exchange for Continuing Relationship
Pursuant to Customary Trade Terms, entered on May 6, 2003. The
Debtors are still investigating which vendors they have
actions against. A list of the vendors participating in the
Critical Trade Lien Program is attached hereto as Exhibit A-7;
- All actual or potential actions, whether legal, equitable or
statutory in nature, against Persons or Entities including
vendors with respect to prepetition violations of applicable
federal or state securities laws;
- All actual or potential breach of contract actions against any
customers, vendors or Entities who improperly exited the
Debtors' system or who violated the automatic stay after the
Petition Date, including, but not limited to, those customers
or vendors listed on Exhibit A-1, A-2, and A-3;
- All actual or potential actions, whether legal, equitable or
statutory in nature, against landlords, lessees, sublessees,
or assignees arising from various leases, subleases and
assignment agreements relating thereto, including, without
limitation, actions for unpaid rent, overcharges relating to
taxes, common area maintenance and other similar charges,
including, but not limited to, those claims identified on
Exhibit A-10. In addition, two landlords, Massilon Food
Company and LLC Tulsa Food Company, LLC, drew down on standby
letters of credit under their respective leases shortly after
the Debtors filed for bankruptcy. The Debtors are
investigating whether these draw-downs were proper and reserve
all rights to bring actions against these landlords;
- All actual or potential actions, whether legal, equitable or
statutory in nature, against the Debtors' current or former
insurance carriers to recover unpaid reimbursements and
claims, overpayment of premiums and fees, claims for breach of
contract, indemnity obligations or coverage or similar Causes
of Action, including, but not limited to, those insurers
listed on Exhibit A-12;
25
- All actual or potential Causes of Actions, whether legal,
equitable or statutory in nature, against purchasers of assets
from the Debtors relating to breach of the purchase agreement
or unpaid compensation thereunder, including, but not limited
to, those purchasers listed on Exhibit A-9;
- Any and all rights to payment against any taxing authority
listed on Exhibit A-11 for any tax refunds, credits,
overpayments or offsets that may be due and owing to the
Debtors for taxes that the Debtors may have paid to any such
taxing authority;
- All actions or potential actions, whether legal, equitable or
statutory in nature, relating to deposits or other amounts
owed by any creditor, lessor utility, supplier, vendor,
landlord, sub-lessee, assignee or other Person or Entity;
- All actions or potential actions, whether legal, equitable or
statutory in nature, relating to environmental and product
liability matters;
- All actions or potential actions, whether legal, equitable or
statutory in nature, arising out of, or relating to, the
Debtors' intellectual property rights;
- Any litigation or lawsuit initiated by any of the Debtors that
is currently pending, whether in the Bankruptcy Court, before
the American Arbitration Association, or any other court or
tribunal or initiated against the Debtors after the Petition
Date for which the Debtors may have counterclaims or other
rights, including, but, not limited to, those actions listed
on Exhibit A-4 hereto;
- Potential actions against any of the prepetition directors,
officers, employees, attorneys, financial advisors,
accountants, investment bankers, agents and representatives of
each Debtor and their respective subsidiaries, including, but
not limited to those employees on Exhibit A-5 hereto, except
the D&O Releasees, for breaches of fiduciary duty, negligent
mismanagement, wasting of corporate assets, and diversion of
corporate opportunity;
- All actual or potential actions, whether legal, equitable or
statutory in nature, against all Persons except the D&O
Releasees arising out of, or in connection with, any of the
Debtors' prepetition management, operation and/or reporting of
financial or other information;
- All actions or potential actions, whether legal, equitable or
statutory in nature, against any of the Debtors' current or
former professionals, except the Releasees, for breach of
fiduciary duty, breach of contract, negligence or professional
misconduct or malpractice, or other tortuous conduct,
including, but not limited to, those former professionals
listed on Exhibit A-8 hereto;
- All rights against any shareholders or others for
subordination of their Claims pursuant to section 510(b) of
the Bankruptcy Code or against any Person that has agreed to
subordination of their claim pursuant to section 510(a) of the
Bankruptcy Code;
- All actions or potential actions against the prepetition
members of the Debtors' board of directors and/or officers
except the D&O Releasees, including, without limitation, the
right to equitably subordinate claims held by such directors
and officers pursuant to section 510(c) of the Bankruptcy
Code;
- All actual or potential actions, whether legal, equitable or
statutory in nature, to recover amounts improperly awarded to
employees except the D&O Releasees under the terms of any
prepetition employment or change-in-control agreement or bonus
arrangement;
- All actual or potential contract and tort actions that may
exist or may subsequently arise; and
- All actual or potential actions whether legal, equitable or
statutory in nature, arising out of, or in connection with the
Debtors' business or operations.
26
The above categories of preservation of causes of action shall not be
limited in any way by reference to Exhibit A nor are the categories intended to
be mutually exclusive.
In addition, there may be numerous other Causes of Action which
currently exist or may subsequently arise that are not set forth herein, because
the facts upon which such Causes of Action are based are not fully or currently
known by the Debtors and, as a result, cannot be specifically referred to herein
(collectively, the "Unknown Causes of Action"). The failure to list any such
Unknown Causes of Action herein, or on Exhibit A filed herewith (except as to
Releasees), is not intended to limit the rights of Core-Mark Newco or the Post
Confirmation Trust to pursue any Unknown Cause of Action to the extent the facts
underlying such Unknown Cause of Action become fully known to the Debtors.
C. Preservation of All Causes of Action Not Expressly Settled or Released
Unless a Claim or Cause of Action against a Creditor or other Person is
expressly waived, relinquished, released, compromised or settled in the Plan or
any Final Order, the Debtors expressly reserve such Claim or Cause of Action for
later adjudication by Core-Mark Newco or the Post Confirmation Trust, as
applicable (including, without limitation, Unknown Causes of Action), and,
therefore, no preclusion doctrine, including, without limitation, the doctrines
of res judicata, collateral estoppel, issue preclusion, claim preclusion,
waiver, estoppel (judicial, equitable, or otherwise) or laches shall apply to
such Claims or Causes of Action upon or after the Confirmation or Effective Date
of the Plan based on the Disclosure Statement, the Plan or the Confirmation
Order, except where such Claims or Causes of Action have been released in the
Plan or other Final Order. In addition, the Debtors, Core-Mark Newco, the
Reorganized Debtors, the Post Confirmation Trust and the successor entities
under the Plan expressly reserve the right to pursue or adopt any Claim alleged
in any lawsuit in which the Debtors are defendants or an interested party,
against any Person or Entity, including, without limitation, the plaintiffs or
co-defendants such lawsuits.
Any Person to whom the Debtors have incurred an obligation (whether on
account of services, purchase or sale of goods or otherwise), or who has
received services from Debtors or a transfer of money or property of the
Debtors, or who has transacted business with the Debtors, or leased equipment or
property from the Debtors should assume that such obligation, transfer, or
transaction may be reviewed by the Debtors or the Post Confirmation Trust
subsequent to the Effective Date and may, if appropriate, be the subject of an
action after the Effective Date, whether or not (i) such Entity has filed a
proof of Claim against the Debtors in these Bankruptcy Cases; (ii) such
Creditor's proof of Claim has been objected to; (iii) such Creditor's Claim was
included in the Debtors' Schedules; or (iv) such Creditor's scheduled Claim has
been objected to by the Debtors or has been identified by the Debtors as
disputed, contingent, or unliquidated.
ARTICLE VII.
FUNDING OF THE PLAN
All Cash necessary for Core-Mark Newco and the Post Confirmation Trust
to make payments pursuant to the Plan will be obtained from the Reorganized
Debtors' existing Cash balances, operations, the Exit Financing Facility, the
Tranche B Loan and prosecution of Causes of Action, including collections of the
Litigation Claims, unless such Cash is not sufficient to fund the Plan, in which
case the Debtors, with the consent of the Committee, reserve the right to raise
Cash from a sale of some or substantially all of their assets.
A. Exit Financing Facility, Obtaining Cash for Plan Distributions and
Transfers of Funds Among the Debtors and the Reorganized Debtors
Cash payments to be made pursuant to the Plan will be made by Core-Mark
Newco and the Post Confirmation Trust, as applicable, provided, however, that
the Debtors and the Reorganized Debtors will be entitled to transfer funds
between and among themselves as they determine to be necessary or appropriate to
enable Core-Mark Newco and the Post Confirmation Trust, as applicable, to
satisfy their respective obligations under the Plan. On the Effective Date, the
Reorganized Debtors are authorized to execute and deliver those documents
necessary or appropriate to obtain the Exit Financing Facility and the Tranche B
Loan, if applicable. The Exit Financing Facility shall not be secured by the
assets transferred to the Post Confirmation Trust.
27
B. Tranche B Loan
The Tranche B Loan shall be a term credit facility in the amount of up
to $60 million available to be borrowed from the Tranche B Lenders on the
Effective Date in the form of funded borrowings or letters of credit. All
obligations under the Tranche B Loan shall be secured by second priority
security interests in and liens upon substantially all present and future assets
of Core-Mark Newco other than those assets transferred to the Post Confirmation
Trust, including accounts receivable, general intangibles, inventory, equipment,
fixtures and real property, and products and proceeds thereof. The Tranche B
Loan shall be junior to the Exit Financing Facility.
The terms of the Tranche B Loan are set forth in more detail in the
Indicative Tranche B Loan Term Sheet filed with the Disclosure Statement as
Exhibit 8.
C. Sale of Assets
In the event that the Debtors do not have sufficient Cash from their
existing Cash balances on the Effective Date, operations, the Exit Financing
Facility, the Tranche B Loan and pursuit of Causes of Action to make the
required payments under the Plan, the Debtors, with the consent of the
Committee, reserve the right to fund the Plan through a sale of some or
substantially all of the assets of the Debtors under section 363 of the
Bankruptcy Code.
ARTICLE VIII.
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
A. Assumption/Rejection of Executory Contracts and Unexpired Leases
As of the Effective Date, except as otherwise provided herein, all
executory contracts or unexpired leases of the Debtors will be deemed rejected
in accordance with the provisions and requirements of sections 365 and 1123 of
the Bankruptcy Code except those executory contracts and unexpired leases that
(i) have been previously rejected or assumed by Order of the Bankruptcy Court,
(ii) are subject to a pending motion to reject or assume or (iii) are
specifically listed on the Assumption Schedule to be filed 15 days prior to the
Voting Deadline. The Debtors reserve the right for 30 days after the
Confirmation Date to modify the Assumption Schedule to add executory contracts
or leases or remove executory contracts or leases from such Assumption Schedule.
The Debtors shall provide appropriate notice to any party added or removed from
the Assumption Schedule, and any such party removed from the Assumption Schedule
shall have thirty days from the receipt of such notice to file a proof of claim
with the Bankruptcy Court.
On the Petition Date, the Debtors were parties to certain collective
bargaining agreements ("CBA's"). The Debtors are assuming the four (4) CBA's
with labor organizations at facilities where the Debtors operations are
on-going, which CBA's are identified on the Assumption Schedule. All other CBA's
in existence on April 1, 2003 between labor organizations and the Debtors either
have been assumed and assigned to various purchasers or have lapsed or otherwise
terminated in connection with facility or business closings or sales.
B. Claims Based on Rejection of Executory Contracts or Unexpired Leases
Except as provided in section VIII.A., all proofs of Claim with respect
to Claims, if any, arising from the rejection of executory contracts or
unexpired leases that are rejected as a result of the Plan must be filed with
the Bankruptcy Court within thirty (30) days after the Effective Date. Any
Claims arising from the rejection of an executory contract or unexpired lease
not filed within such time or any applicable Contract Claims Bar Date, will be
forever barred from asserting against any Debtor or Reorganized Debtor, their
respective Estates, their property, and the Post Confirmation Trust unless
otherwise ordered by the Bankruptcy Court or provided herein.
C. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed
Any monetary amounts by which each executory contract and unexpired
lease to be assumed pursuant to the Plan is in default shall be satisfied,
pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of the default
amount in Cash as soon as practicable after the Effective Date or on such other
terms as the parties to such
28
executory contracts or unexpired leases may otherwise agree. In the event of a
dispute regarding: (i) the amount of any cure payments, (ii) the ability of the
applicable Reorganized Debtor 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 (iii) any other matter pertaining
to assumption, the cure payments required by section 365(b)(1) of the Bankruptcy
Code shall be made following the entry of a Final Order resolving the dispute
and approving the assumption.
D. Indemnification of Directors, Officers and Employees
The obligations of each Debtor to indemnify any Person serving at any
time on or prior to the Effective Date as one of its directors, officers or
employees by reason of such Person's service in such capacity, or as a director,
officer or employee of any other corporation or legal entity, to the extent
provided in such Debtor's constituent documents, by a written agreement with
such Debtor or under Delaware or other applicable corporate law, and
specifically excluding any obligation to indemnify the Excluded Releasees listed
on Exhibit B filed herewith, shall be deemed and treated as executory contracts
that are assumed by such Reorganized Debtor pursuant hereto and section 365 of
the Bankruptcy Code as of the Effective Date. Accordingly, such indemnification
obligations shall be treated as obligations of the Reorganized Debtors and shall
survive unimpaired and unaffected by entry of the Confirmation Order,
irrespective of whether such indemnification is owed for an act or event
occurring before or after the Petition Date.
E. Compensation and Benefit Programs
Except as otherwise expressly provided herein, all employment and
severance agreements and policies, and all compensation and benefit plans,
policies, and programs of the Debtors applicable to their employees, former
employees, retirees and non-employee directors and the employees, former
employees and retirees of their subsidiaries, including, without limitation, all
savings plans, retirement plans, health care plans, disability plans, severance
benefit agreements and plans, incentive plans, deferred compensation plans and
life, accidental death and dismemberment insurance plans (the "Company Benefit
Plans") shall be terminated, or shall be treated as executory contracts under
the Plan, and on the Effective Date any such remaining Company Benefit Plans
that have not been terminated will be deemed rejected pursuant to the provisions
of sections 365 and 1123 of the Bankruptcy Code, except for those with respect
to the Reorganized Debtors' employees specifically designated on the Benefits
Schedule to be filed 15 days prior to the Voting Deadline. In addition, except
as set forth on the Benefits Schedule, the Debtors shall have withdrawn or shall
withdraw from all "multiemployer plans" (as such term in defined in section
3(37) of ERISA) prior to the Effective Date, and all claims of such
multiemployer plans shall be treated as General Unsecured Claims.
Notwithstanding the termination or rejection of the Company Benefit Plans
hereunder, vested retiree medical benefits, if any, under applicable Company
Benefit Plans shall be obligations of the Reorganized Debtors and/or Core-Mark
Newco unless terminated pursuant to Section 1114 of the Bankruptcy Code prior to
the Effective Date. The Debtors believe that the Reorganized Debtors and/or
Core-Mark Newco may decide to terminate retiree medical benefits after the
Effective Date and expect that the Reorganized Debtors and/or Core-Mark Newco
will incur substantial litigation costs if they attempt to eliminate any retiree
medical benefits that are considered vested.
F. Insured Claims
1. Directors and Officers Related Insurance Coverage
The Debtors will assume all of the D&O Policies, and the
Debtors will continue to pay premiums, deductibles, and any other payments that
they are obligated to make to the applicable Insurers in the normal course of
their business operations.
2. Worker's Compensation
Under the Plan, the Debtors will assume all of the existing
contracts for workers' compensation insurance, and with respect to all Workers
Compensation Policies except those issued by Ace American Insurance Company
("Ace") and National Union Fire Insurance Company ("National Union") the Debtors
will continue to pay premiums, deductibles, and any other payments that the
Debtors are obligated to make to Insurers (the "Workers' Compensation
Payments"). With respect to the Workers Compensation Policies issued by Ace and
National Union,
29
the Debtors will continue to permit Ace and National Union to use the Debtors'
Insurance Security to make the Workers' Compensation Payments. Any Claims that
are covered by the Workers' Compensation Program shall continue to be
administered and paid by the Insurers, in accordance with the Workers'
Compensation Program.
To the extent that any of the Debtors' obligations under the
Workers' Compensation Program are secured by the Insurance Security, the
Insurers for the respective policies shall be entitled to draw upon the
appropriate letter(s) of credit to satisfy amounts due from the Debtors on
account of: (i) amounts expended by the Insurers in defense of allowed Claims,
(ii) administrative costs incurred by the Insurers to administer such Claims,
and (iii) payments made in satisfaction of allowed Claims.
3. Casualty Insurance Program
(a) Under-Deductible Insured Claims. An Under-Deductible
Insured Claim shall be treated in the same manner as any other
Unsecured Claim under the Plan and shall be either a Class 6 General
Unsecured Claim or Class 7 Convenience Claim, as appropriate, under the
Plan. The Under-Deductible Insured Claim shall be fully-satisfied by
the applicable distribution under the Plan, regardless of the amount
actually distributed to the Holder of the relevant Under-Deductible
Insured Claim under the Plan. The respective Insurer shall have no
obligation under the Casualty Insurance Program, or the Plan, to pay
any part of an Under-Deductible Insured Claim. The Insurers may not use
the Insurance Security to pay any party of an Under-Deductible Insured
Claim, but the Insurers may use any applicable Insurance Security to
reimburse themselves for reasonable costs incurred to administer the
Under-Deductible Insured Claims.
(b) Covered Allowed Insured Claims. The Covered Allowed
Insured Claims shall be satisfied as follows: (i) the Insured Claim, up
to the Deductible Amount, shall be treated as a Class 6 General
Unsecured Claim or Class 7 Convenience Claim, as appropriate, under the
Plan, and that portion of the Insured Claim shall be paid in the manner
provided by the Plan and be fully-satisfied, regardless of the amount
actually distributed to the Holder of the relevant Insured Claim; and
(ii) the Insurer shall satisfy that portion of an Insured Claim that
exceeds the Deductible Amount (the "Over-Deductible Amount"). On the
Effective Date, the Debtors shall be discharged of any liability for
the Covered Allowed Insured Claims.
(c) The Exceeded Allowed Insured Claims. The Exceeded Allowed
Insured Claims shall be satisfied as follows: (i) the Insured Claim, up
to the Deductible Amount, shall be treated as a Class 6 General
Unsecured Claim or Class 7 Convenience Claim, as appropriate, under the
Plan, and that portion of the Insured Claim shall be paid in the manner
provided by the Plan and be fully-satisfied, regardless of the amount
actually distributed to the Holder of the relevant Insured Claim; (ii)
the Insurer shall satisfy the Over-Deductible Amount up to the
Aggregate Limit; and (iii) that portion of the Insured Claim that
exceeds the Aggregate Limit shall be treated as a Class 6 General
Unsecured Claim or Class 7 Convenience Claim, as appropriate, under the
Plan, and the Insured Claim shall be paid in the manner provided by the
Plan and shall be fully satisfied, regardless of the amount actually
distributed to the Holder of the Insured Claim under the Plan. On the
Effective Date, the Debtors shall be discharged of any liability for
the Exceeded Allowed Insured Claims.
4. The Old Republic Claims
Old Republic Insurance Company shall be entitled to an
Administrative Claim against the Debtors, subject to any applicable defenses or
counterclaims of the Debtors, for any failure by the Debtors to: (i) make
premium payments pursuant to the Old Republic Program Agreement, or pay any
other amount due with respect to Old Republic's issuance of the Old Republic
Policies; (ii) the Debtors' failure to make payments within the deductible layer
of the policies for deductibles relating to or on account of occurrences giving
rise to Claims covered by the Policies, or (iii) make payments due to any
third-party administrator that is administering covered claims under the Old
Republic Policies. Except as the parties otherwise agree, such Administrative
Claim shall: (i) survive confirmation of the Plan, (ii) shall not be liquidated
or adjudicated by the Court, and (iii) shall not be payable upon the Effective
Date of the Plan. The Debtors will not seek to recover from Old Republic before
January 1, 2008 for any excess draw on the Old Republic Letters of Credits, if
drawn by Old Republic, unless otherwise agreed to by the parties.
30
5. Defense Costs
Notwithstanding the provisions above with respect to the
payment of Allowed Under-Deductible Insured Claims, the Insurers shall have the
right to seek reimbursement from the Debtors of Allowed Defense Costs with
respect to Under-Deductible Insured Claims, and such reimbursement shall be
obtained by deducting the Allowed Defense Costs from the Insurance Security held
by the respective Insurers as security for the payment of such costs. However,
if the sum of the Insured Claim and the Allowed Defense Costs exceeds the
applicable Deductible Amount under the respective policy, the Insurer shall not
be entitled to reimbursement for costs that exceed the applicable Deductible
Amount. To the extent that an Insurer is entitled to reimbursement of Allowed
Defense Costs, but the Insurer does not have Insurance Security for the
obligation, the Insurer shall be entitled to a Class 6 General Unsecured Claim
for the Allowed Defense Costs.
ARTICLE IX.
PROVISIONS GOVERNING DISTRIBUTIONS
A. Distributions for Claims Allowed as of the Effective Date
Except as otherwise provided herein or as may be ordered by the
Bankruptcy Court, distributions to be made on the Effective Date on account of
Claims that are Allowed as of the Effective Date and are entitled to receive
distributions under the Plan shall be made on the Effective Date or as soon
thereafter as practicable. Except as evidenced by an electronic entry, as a
condition to receive any distribution under the Plan, each Old Note Holder must
comply with section IX.I and IX.K below. All distributions shall be made in
accordance with any applicable Indenture agreement, loan agreement or analogous
instrument or agreement.
B. Distributions by Core-Mark Newco and the Post Confirmation Trust
Except as otherwise provided herein, Core-Mark Newco or the Post
Confirmation Trust, as applicable, shall make all distributions required under
the Plan. Notwithstanding the provisions of Section V.C. herein regarding the
cancellation of the Indentures, the Indentures shall continue in effect to the
extent necessary to allow the Old Notes Trustees to provide information to the
Exchange Agent to permit distributions of the New Common Stock and to receive
New Common Stock on behalf of the Holders of the Old Notes and make
distributions pursuant to the Plan on account of the Old Notes as agent for
Core-Mark Newco. The Old Notes Trustees (or any agents or servicers) providing
services related to distributions to the Holders of Allowed Old Note Claims
shall receive, from Core-Mark Newco, reasonable compensation for such services
and reimbursement of reasonable expenses incurred in connection with such
services upon the presentation of invoices to Core-Mark Newco. All distributions
to be made herein shall be made without any requirement for bond or surety with
respect thereto.
C. Interest on Claims
Except as otherwise specifically provided for herein or in the
Confirmation Order, or required by applicable bankruptcy law, post-petition
interest shall not accrue or be paid on any Claims, other than the Pre-Petition
Lenders' Secured Claims and the DIP Claims, and no Holder of a Claim shall be
entitled to interest accruing on or after the Petition Date on any Claim.
D. Compliance with Tax Requirements/Allocations
In connection with the Plan, to the extent applicable, the Reorganized
Debtors shall comply with all tax withholding and reporting requirements imposed
on them by any governmental unit, and all distributions pursuant hereto shall be
subject to such withholding and reporting requirements. For tax purposes,
distributions received in respect of Allowed Claims will be allocated first to
the principal amount of Allowed Claims with any excess allocated, if applicable,
to unpaid interest that accrued on such Claims.
31
E. Delivery of Distributions and Undeliverable or Unclaimed Distributions
1. Delivery of Distributions in General
Distributions to Holders of Allowed Claims shall be made at the address
of the Holder of such Claim as indicated on the records of Debtors or upon their
proofs of Claim, if any, or, if such Holder holds Senior Note Claims,
distributions with respect to such Senior Note Claims will be made to the Senior
Notes Indenture Trustee which will make distributions to Holders of Old Senior
Notes. To the extent the Senior Notes Indenture Trustee makes distributions to
DTC, DTC will, in turn, make appropriate book entries to reflect the
distributions it makes to Holders. Except as otherwise provided by the Plan or
the Bankruptcy Code with respect to undeliverable distributions, distributions
to Holders of Old Note Claims shall be made in accordance with the provisions of
the applicable Indentures.
2. Undeliverable Distributions
(a) Holding of Undeliverable Distributions. If any
distribution to a Holder of an Allowed Claim is returned to Core-Mark
Newco or the Post Confirmation Trust as undeliverable, no further
distributions shall be made to such Holder unless and until Core-Mark
Newco or the Post Confirmation Trust is notified in writing of such
Holder's then-current address. Undeliverable distributions shall remain
in the possession of Core-Mark Newco or the Post Confirmation Trust
subject to Section IX.E.2(b) below until such time as a distribution
becomes deliverable. Undeliverable Cash shall not be entitled to any
interest, dividends or other accruals of any kind. As soon as
reasonably practicable, Core-Mark Newco or the Post Confirmation Trust
shall make all distributions that become deliverable.
(b) Failure to Claim Undeliverable Distributions. In an effort
to ensure that all Holders of Allowed Claims receive their allocated
distributions, no sooner than 240 days after the Effective Date, the
Debtors will compile a listing of unclaimed distribution Holders. This
list will be maintained and updated for as long as the Chapter 11 Cases
stay open. Any Holder of an Allowed Claim (irrespective of when a Claim
became an Allowed Claim) that does not assert a Claim pursuant hereto
for an undeliverable distribution (regardless of when not deliverable)
within six months after the distribution has been attempted to be made
to the Holder of the Allowed Claim shall have its Claim for such
undeliverable distribution discharged and shall be forever barred from
asserting any such Claim against any Reorganized Debtor or its
respective property. In such cases: (i) any Cash held for distribution
on account of such Claims shall be the property of Core-Mark Newco or
the Post Confirmation Trust, as applicable, free of any restrictions
thereon; and (ii) any New Common Stock held for distribution on account
of such Claims shall be canceled and of no further force or effect.
Nothing contained herein shall require Core-Mark Newco or the Post
Confirmation Trust to attempt to locate any Holder of an Allowed Claim
or Allowed Equity Interest.
(c) Abandoned Property Law. The provisions of the Plan
regarding undeliverable distributions will apply with equal force to
distributions made pursuant to the Old Note Indentures; notwithstanding
any provision in such indenture to the contrary and notwithstanding any
otherwise applicable escheat, abandoned or unclaimed property law.
F. Distribution Record Date
As of the close of business on the Distribution Record Date, the
transfer register for the Old Notes as maintained by the Debtors, the Old Notes
Trustees or their agents, shall be closed, and there shall be no further changes
in the record Holders of any Old Notes. Moreover, the Reorganized Debtors shall
have no obligation to recognize the transfer of any Old Notes occurring after
the Distribution Record Date and shall be entitled for all purposes herein to
recognize and deal only with those Holders of record as of the close of business
on the Distribution Record Date.
G. Timing and Calculation of Amounts to be Distributed
Except as otherwise provided herein, on the Effective Date or as soon
as practicable thereafter, each Holder of an Allowed Claim against the Debtors
shall receive the distributions that the Plan provides for Allowed Claims in the
applicable Class, provided however, Core-Mark Newco and the Post Confirmation
Trust, as applicable, shall
32
maintain reserve accounts in trust for the payment or distribution on account of
potential or Disputed Claims and shall make the appropriate adjustments in
distributions to adequately take into consideration and fund such reserve
accounts. Core-Mark Newco and the Post Confirmation Trust, as applicable, shall
be authorized to make interim distributions and any subsequent distributions
necessary to distribute any Cash, New Common Stock or other consideration held
in any reserve account to the appropriate Claim Holder as Claims are resolved
and allowed and reserves are reduced in accordance with the Plan. If and to the
extent that there are Disputed Claims, beginning on the date that is 45 calendar
days after the end of the month following the Effective Date and 45 calendar
days after the end of each month thereafter, distributions shall also be made,
pursuant hereto, to Holders of formerly Disputed Claims in any Class whose
Claims were Allowed during the preceding month.
H. Minimum Distribution
The New Common Stock will be issued as whole shares. If a registered
record Holder of an Allowed Claim is entitled to the distribution of a
fractional share of New Common Stock, unless otherwise determined and approved
by the Bankruptcy Court, the fractional distribution to which such Holder would
be entitled shall be aggregated with all other such similar distributions by
Core-Mark Newco (or its agent), and as soon as practicable after final
reconciliation allowance or resolution of all Class 6 Claims, sold by Core-Mark
Newco (or its agent) in a commercially reasonable manner. Upon the completion of
such sale, the net proceeds thereof shall be distributed (without interest), pro
rata in the case of New Common Stock, to the Holders of Allowed Claims, based
upon the fractional share of New Common Stock each such Holder would have been
entitled to receive or deemed to hold had Core-Mark Newco issued fractional
shares of New Common Stock. Such distributions shall be in lieu of any other
distribution.
I. Allowance or Resolution Setoffs
The Reorganized Debtors may, pursuant to section 553 of the Bankruptcy
Code or applicable non-bankruptcy law, set off against any Allowed Claim and the
distributions to be made pursuant hereto on account of such Claim (before any
distribution is made on account of such Claim), the Claims, rights and Causes of
Action of any nature that the Debtors or the Reorganized Debtors may hold
against the Holder of such Allowed Claim; provided that neither the failure to
effect such a setoff nor the allowance of any Claim hereunder shall constitute a
waiver or release by the Debtors or the Reorganized Debtors of any such Claims,
rights and Causes of Action that the Debtors or the Reorganized Debtors may
possess against such Holder, except as specifically provided herein.
J. Old Notes
Each record Holder of an Allowed Claim relating to the Old Notes not
held through DTC shall either (a) tender its Old Notes relating to such Allowed
Claim in accordance with written instructions to be provided to such Holders by
the applicable Reorganized Debtor as promptly as practicable following the
Effective Date, or (b) if the Holder's Old Note has been destroyed, lost, stolen
or mutilated, comply with section IX.K. below. Such instructions shall specify
that delivery of such Old Notes will be effected, and risk of loss and title
thereto will pass, only upon the proper delivery of such Old Notes with a letter
of transmittal in accordance with such instructions. All surrendered Old Notes
shall be marked as canceled. If any Holder of Old Notes not held through DTC
submits bearer bonds without coupons or coupons only, the Debtors shall adjust
the consideration exchanged therefore appropriately.
K. Failure to Surrender Canceled Instruments
Any Holder of Allowed Claims relating to the Old Notes not held through
DTC that fails to surrender or is deemed to have failed to surrender its Old
Notes required to be tendered hereunder or that has failed to comply with
section IX.L. below within one year after the Effective Date shall have its
Claim for a distribution pursuant hereto on account of such Allowed Claim
discharged and shall be forever barred from asserting any such Claim against any
Reorganized Debtor or their respective properties. In such cases, any New Stock
held for distribution on account of such Claim shall be disposed of pursuant to
the provisions set forth in section IX.E. above.
33
L. Lost, Stolen, Mutilated or Destroyed Debt Securities
In addition to any requirements under the Indentures or any related
agreement, any Holder of a Claim evidenced by an Old Note not held through DTC
that has been lost, stolen, mutilated or destroyed shall, in lieu of
surrendering such Old Note, deliver to the applicable Reorganized Debtor: (a) an
affidavit of loss reasonably satisfactory to such Reorganized Debtor setting
forth the unavailability of the Old Note not held through DTC; and (b) such
additional security or indemnity as may be reasonably required by such
Reorganized Debtor to hold such Reorganized Debtor harmless from any damages,
liabilities or costs incurred in treating such individual as a Holder of an
Allowed Claim. Upon compliance with this procedure by a Holder of a Claim
evidenced by an Old Note, such Holder shall, for all purposes under the Plan, be
deemed to have surrendered such non-DTC note.
M. Share Reserve
In addition to the provisions of section X.A.3. herein, Core-Mark Newco
shall be required to establish and maintain an appropriate reserve of New Common
Stock to ensure the distribution of New Common Stock to the Holder of any
Disputed Claim upon its allowance.
N. Settlement of Claims and Controversies
Pursuant to Fed. R. Bankr. P. 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 Claim may have with respect to any Allowed Claim, or any
distribution to be made on account of any such Allowed Claim.
ARTICLE X.
PROCEDURES FOR RESOLUTION OF DISPUTED, CONTINGENT
AND UNLIQUIDATED CLAIMS
A. Resolution of Disputed Claims
1. Prosecution of Objections to Claims
After the Effective Date, except in regard to objections to
Professional fees and other fees, the Post Confirmation Representative shall
have the exclusive authority to file objections, settle, compromise, withdraw or
litigate to judgment objections to Claims on behalf of the Debtors and
Reorganized Debtors. From and after the Effective Date, the Post Confirmation
Representative may settle or compromise any Disputed Claim on behalf of the
Reorganized Debtors without approval of the Bankruptcy Court.
2. Estimation of Claims
Core-Mark Newco and the Post Confirmation Representative, as
applicable, may, at any time, request that the Bankruptcy Court estimate any
contingent or unliquidated Claim pursuant to section 502(c) of the Bankruptcy
Code regardless of whether the Debtors, Core-Mark Newco or the Post Confirmation
Trust, as applicable, has previously 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 during the pendency of any
appeal relating to any such objection. In the event that the Bankruptcy Court
estimates any contingent or unliquidated Claim, that estimated amount will
constitute either the Allowed amount of such Claim or a maximum limitation on
such Claim, as determined by the Bankruptcy Court. If the estimated amount
constitutes a maximum limitation on such Claim, Core-Mark Newco and the Post
Confirmation Representative, as applicable, may elect to pursue any supplemental
proceedings to object to any ultimate payment on such Claim. All of the
aforementioned Claims and objection, estimation and resolution procedures are
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.
34
3. Payments and Distributions on Disputed Claims
Notwithstanding any provision herein to the contrary, except as
otherwise agreed by Core-Mark Newco or the Post Confirmation Trust, as
applicable, Core-Mark Newco and the Post Confirmation Trust, as applicable, in
their sole discretion shall not make any partial payments or partial
distributions with respect to a Disputed Claim until the resolution of such
disputes by settlement or Final Order. On the date or, if such date is not a
Business Day, on the next successive Business Day that is 45 calendar days after
the month in which a Disputed Claim becomes an Allowed Claim, the Holder of such
Allowed Claim will receive all payments and distributions to which such Holder
is then entitled under the Plan. Notwithstanding the foregoing, any Person or
Entity who holds both an Allowed Claim(s) and a Disputed Claim(s) will not
receive the appropriate payment or distribution on the Allowed Claim(s), except
as otherwise agreed by Core-Mark Newco or the Post Confirmation Trust, as
applicable, until the Disputed Claim(s) is or are resolved by settlement or
Final Order. In the event there are Disputed Claims requiring adjudication and
resolution, Core-Mark Newco and the Post Confirmation Trust, as applicable,
shall establish appropriate reserves for potential payment of such Claims.
B. Allowance of Claims
Except as expressly provided herein or in any order entered in the
Chapter 11 Cases prior to the Effective Date (including the Confirmation Order),
no Claim shall be deemed Allowed unless and until such Claim is deemed Allowed
under the Bankruptcy Code and no objection to such Claim has been filed by the
Objection Deadline or the Bankruptcy Court enters a Final Order in the Chapter
11 Cases allowing such Claim. Except as expressly provided in the Plan or any
order entered in the Chapter 11 Cases prior to the Effective Date (including the
Confirmation Order), the Reorganized Debtors and the Post Confirmation Trust, as
applicable, after confirmation will have and retain any and all rights,
remedies, causes of action and defenses the Debtors had with respect to any
Claim as of the date the Debtors filed their petitions for relief under the
Bankruptcy Code. All Claims of any Person or Entity that may owe money to the
Debtors shall be disallowed unless and until such Person or Entity pays the
amount it owes the Debtors in full.
C. Controversy Concerning Impairment
If a controversy arises as to whether any Claims, or any Class of
Claims, is Impaired under the Plan, the Bankruptcy Court shall, after notice and
a hearing, determine such controversy before the Confirmation Date.
D. Impact on Pending Litigation; Pension Plans
Pursuant to section III.B.12 herein, Other Securities Claims and
Interests, including, but not limited to, the securities class action entitled
In re Fleming Companies Securities Litigation, Master File No. 5:03-md-1530TJW
(the "Securities Class Action") brought by current or former Fleming
shareholders and creditors described in more detail in section V.C.6 of the
Disclosure Statement, will be permanently enjoined as to the Debtors and any
claims thereunder discharged. Litigation involving directors and officers of the
Debtors, including but not limited to, that described in section V.C.6 of the
Disclosure Statement may be affected by the releases contained in section XII
herein. Litigation against the Debtors that is not deemed an Other Securities
Claim or Interest or is not affected by the releases contained in section XII
herein, and is not otherwise discharged, settled or expunged in accordance with
the Plan, will be permanently enjoined pursuant to section XII.G. herein, and
any Allowed Claims arising from such litigation will generally be treated as
Class 6 Claims under the Plan. Nothing in the Plan or in any order confirming
the Plan, however, shall affect, release, enjoin or impact in any way the
prosecution of the claims of the class claimants in the Securities Class Action
asserted, or to be asserted, against the non-Debtor defendants in the Securities
Class Action and/or any other non-Debtor unless (i) a Claim Holder has
affirmatively voted in favor of the Plan, in which case such Claim Holder shall
release the Releasees as outlined in section XII.C. herein and any litigation by
such Claim Holder against the Releasees of the type outlined in section XII.C.
shall be permanently enjoined and any Claims thereunder discharged as outlined
herein and in section XII.G., or (ii) the litigation is among Releasees, in
which case it shall be released by the Mutual Releases outlined in section
XII.B. herein and shall be permanently enjoined and any claims thereunder
discharged as outlined herein and in section XII.G. The Plan shall forever bar
any claimant including, but not limited to, the class claimants in the
Securities Class Action from pursuing claims against the Debtors which are
covered by the directors and officers liability insurance policies maintained by
the Debtors (the "D&O Insurance") but shall not bar such Claim Holders from
pursuing the non-Debtor defendants who may be entitled to coverage by the D&O
Insurance.
35
On February 9, 2004, Jackson Capital Management LLC, the lead plaintiff
("Lead Plaintiff") in the Securities Class Action filed an Objection to the
Disclosure Statement. The Lead Plaintiff raised essentially two objections.
First, the Lead Plaintiff alleges that the provisions in the Plan and Disclosure
Statement relating to Releases are ambiguous in that they are unclear as to
whether such Releases shall have any impact on the rights of the Lead Plaintiff
and class claimants in the Securities Class Action or the claims asserted in the
Securities Class Action against any non-Debtor. This Objection has been
addressed by the language inserted above suggested by the Lead Plaintiff which
specifically states that "Nothing in the Plan or in any Order confirming the
Plan, shall affect, release, enjoin or impact in any way the prosecution of the
claims of the class claimants asserted, or to be asserted, against the
non-Debtor defendants in the Securities Class Action and/or any other
non-Debtor" unless the class claimants also happen to have Claims against the
Debtors in addition to the Claims they have arising out of the Securities Class
Action which are Class 10 Claims, which are extinguished under the Plan and the
Holders of which are not entitled to vote and are deemed to have rejected the
Plan.
The Lead Plaintiff's second Objection is really a Plan Objection. The
Lead Plaintiff alleges that "the class claimants are entitled not only to look
to the proceeds of D & O Insurance for payment of their claims asserted or to be
asserted in the Securities Class Action, but they also may pursue their claims
against the Debtor solely to the extent of such available D & O Insurance." The
Lead Plaintiff goes on to state that the "Plan should not impact the class
claimants' rights against the Debtor, either though injunctive relief or
discharge, to pursue their claims solely against such insurance proceeds."
Again, this is a Plan Objection. The Lead Plaintiff is seeking treatment under
the Plan that is not presently contemplated and not agreed to by the Debtors.
The Plan enjoins the Lead Plaintiff and the class claimants from pursuing claims
against the Debtors and discharges any and all claims that the class claimants
may have against the Debtors. The Debtors cannot agree to permit the Lead
Plaintiffs and class claimants to proceed against the Debtors to the extent of D
& O Insurance. Such treatment would provide the class claimants with treatment
more favorable than that accorded creditors whose claims are of a higher
priority than the class claimants, especially with respect to claimants with
Class 6 and 7 Claims who are not likely to be receiving full recovery on their
Claims.
The PBGC asserts that, as a matter of law, nothing in the Plan or in
the Confirmation Order may release, exculpate, discharge or enjoin any Claims,
obligations, suits, judgments, damages, demands, debts, rights, Cause of Action
or liabilities against any entity other than the Debtors with respect to the
Fleming Pension Plan and the Existing Pension Plans. The Debtors dispute these
assertions.
ARTICLE XI.
CONDITIONS PRECEDENT TO CONFIRMATION
AND OCCURRENCE OF THE EFFECTIVE DATE OF THE PLAN
A. Conditions Precedent to Confirmation
It shall be a condition to Confirmation hereof that all provisions,
terms and conditions hereof are approved in the Confirmation Order.
B. Conditions Precedent to Occurrence of the Effective Date
It shall be a condition to occurrence of the Effective Date of the Plan
that the following conditions shall have been satisfied or waived pursuant to
the provisions of Section XI.C. herein:
1. The Confirmation Order confirming the Plan, as the Plan may
have been modified, shall have been entered and become a Final Order in form and
substance satisfactory to the Debtors and the Committee and shall provide that,
among other things:
(i) the Debtors and Reorganized Debtors are
authorized and directed to take all actions necessary or
appropriate to enter into, implement and consummate the
contracts, instruments, releases, leases, indentures and other
agreements or documents created in connection with the Plan;
36
(ii) the provisions of the Confirmation Order are
nonseverable and mutually dependent;
(iii) Core-Mark Newco is authorized to issue the
New Common Stock and Management Options; and
(iv) the New Common Stock issued under the Plan
is exempt from registration under the Securities Act pursuant
to section 1145 of the Bankruptcy Code, except to the extent
that Holders of the New Common Stock are "underwriters," as
that term is defined in section 1145 of the Bankruptcy Code.
2. The following agreements, in form and substance satisfactory
to the Reorganized Debtors and the Committee, shall have been tendered for
delivery and all conditions precedent thereto shall have been satisfied:
(a) Exit Financing Facility;
(b) Tranche B Loan Agreement; and
(c) Management Incentive Plan.
3. The Certificate of Incorporation of Core-Mark Newco shall have
been filed with the Secretary of State of the State of Delaware.
4. All actions, documents and agreements necessary to implement
the Plan shall have been effected or executed.
5. The new board of directors of Core-Mark Newco shall have been
appointed.
6. The Reorganized Debtors shall have established and funded the
Professional Fee Escrow Account.
7. The appropriate Final Orders recognizing and implementing the
Plan in Canada shall have been obtained from the Canadian CCAA Court.
8. The Post Confirmation Trust shall be established and all
actions, documents and agreements necessary to implement the Post Confirmation
Trust shall have been effected or executed.
9. The issuance of the New Common Stock under the Plan shall be
exempt from the prospectus and registration requirements and the first trade
thereof shall be exempt from the prospectus requirements of the securities laws
of each of the provinces of Canada (including, to the extent necessary, pursuant
to an order or orders issued by the applicable Canadian securities regulators
granting relief from any such prospectus and registration requirements that
would otherwise be applicable).
C. Waiver of Conditions
Except as otherwise required by the terms of the Plan, the Debtors,
with the consent of the Committee, may waive any of the conditions to
Confirmation of the Plan and/or to occurrence of the Effective Date of the Plan
set forth in this Article XI at any time, without notice, without leave or order
of the Bankruptcy Court, and without any formal action other than proceeding to
confirm and/or consummate the Plan.
D. Effect of Non-occurrence of Conditions to Occurrence of the Effective
Date
If the occurrence of the Effective Date of the Plan does not occur by
______ , 2004, the Plan shall be null and void in all respects and nothing
contained in the Plan or the Disclosure Statement shall: (1) constitute a waiver
or release of any Claims by or against the Debtors; (2) prejudice in any manner
the rights of the Debtors; or (3) constitute an admission, acknowledgment, offer
or undertaking by the Debtors in any respect.
37
ARTICLE XII.
DISCHARGE, RELEASE, INJUNCTION AND RELATED PROVISIONS
A. Subordination
The classification and manner of satisfying all Claims and Equity
Interests and the respective distributions and treatments hereunder take into
account and/or conform to the relative priority and rights of the Claims and
Equity Interests in each Class in connection with any contractual, legal and
equitable subordination rights relating thereto whether arising under general
principles of equitable subordination, section 510(b) of the Bankruptcy Code or
otherwise, and any and all such rights are settled, compromised and released
pursuant hereto. The Confirmation Order shall permanently enjoin, effective as
of the Effective Date, all Persons and Entities from enforcing or attempting to
enforce any such contractual, legal and equitable subordination rights
satisfied, compromised and settled in this manner.
B. MUTUAL RELEASES BY RELEASEES
ON AND AFTER THE EFFECTIVE DATE, FOR GOOD AND VALUABLE CONSIDERATION,
INCLUDING THE SERVICES OF THE RELEASEES TO FACILITATE THE EXPEDITIOUS
REORGANIZATION OF THE DEBTORS AND THE IMPLEMENTATION OF THE RESTRUCTURING
CONTEMPLATED BY THE PLAN, EACH OF THE RELEASEES SHALL BE DEEMED TO HAVE
UNCONDITIONALLY RELEASED ONE ANOTHER FROM ANY AND ALL CLAIMS (AS DEFINED IN
SECTION 101(5) OF THE BANKRUPTCY CODE), OBLIGATIONS, RIGHTS, SUITS, DAMAGES,
REMEDIES AND LIABILITIES WHATSOEVER, INCLUDING ANY CLAIMS THAT COULD BE ASSERTED
ON BEHALF OF A DEBTOR, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN,
EXISTING OR HEREINAFTER ARISING, IN LAW, EQUITY OR OTHERWISE, THAT THE RELEASEES
OR THEIR SUBSIDIARIES WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT IN THEIR OWN
RIGHT (WHETHER INDIVIDUALLY OR COLLECTIVELY) OR ON BEHALF OF THE HOLDER OF ANY
CLAIM OR EQUITY INTEREST OR OTHER PERSON OR ENTITY, BASED IN WHOLE OR IN PART
UPON ANY ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT OR OTHER OCCURRENCE
TAKING PLACE ON OR BEFORE THE EFFECTIVE DATE, EXCEPT FOR CASES OF WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE AND PROVIDED THAT THE DEBTORS, THE REORGANIZED
DEBTORS AND THE POST CONFIRMATION TRUST RESERVE THEIR RIGHTS TO BRING AVOIDANCE
ACTIONS, COLLECT VENDOR DEDUCTIONS, OR ASSERT SETOFF, RECOUPMENT AND OTHER
SIMILAR DEFENSES OR CLAIMS AGAINST MEMBERS OF THE COMMITTEE WITH RESPECT TO
DEBTORS' ORDINARY COURSE BUSINESS DEALINGS WITH SUCH COMMITTEE MEMBERS.
C. RELEASES BY HOLDERS OF CLAIMS
ON AND AFTER THE EFFECTIVE DATE, EXCEPT FOR CASES OF WILLFUL MISCONDUCT
OR GROSS NEGLIGENCE, EACH CLAIM HOLDER THAT HAS AFFIRMATIVELY VOTED TO ACCEPT
THE PLAN SHALL BE DEEMED TO HAVE UNCONDITIONALLY RELEASED THE RELEASEES FROM ANY
AND ALL CLAIMS, OBLIGATIONS, RIGHTS, SUITS, DAMAGES, REMEDIES AND LIABILITIES
WHATSOEVER, INCLUDING ANY CLAIMS THAT COULD BE ASSERTED ON BEHALF OF A DEBTOR,
WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, EXISTING OR HEREAFTER ARISING,
IN LAW, EQUITY OR OTHERWISE, THAT SUCH CLAIM HOLDER WOULD HAVE BEEN LEGALLY
ENTITLED TO ASSERT (WHETHER INDIVIDUALLY OR COLLECTIVELY), BASED IN WHOLE OR IN
PART UPON ANY ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT OR OTHER OCCURRENCE
TAKING PLACE ON OR BEFORE THE EFFECTIVE DATE IN ANY WAY RELATING OR PERTAINING
TO (w) THE PURCHASE OR SALE, OR THE RESCISSION OF A PURCHASE OR SALE, OF ANY
SECURITY OF A DEBTOR, (x) A DEBTOR, REORGANIZED DEBTOR OR CORE-MARK NEWCO, (y)
THE CHAPTER 11 CASES OR (z) THE NEGOTIATION, FORMULATION AND PREPARATION OF THE
PLAN, OR ANY RELATED AGREEMENTS, INSTRUMENTS OR OTHER DOCUMENTS.
D. INDEMNIFICATION
THE DEBTORS, REORGANIZED DEBTORS AND CORE-MARK NEWCO SHALL BE JOINTLY
AND SEVERALLY OBLIGATED TO INDEMNIFY ALL D&O RELEASEES AND THEIR RESPECTIVE
AFFILIATES, AGENTS AND PROFESSIONALS AGAINST ANY CLAIMS, OBLIGATIONS, SUITS,
JUDGMENTS, DAMAGES, DEMANDS, DEBTS, RIGHTS, CAUSE OF ACTION OR LIABILITIES
WHETHER DIRECT OR INDIRECT, DERIVATIVE, LIQUIDATED OR UNLIQUIDATED, FIXED OR
CONTINGENT, MATURED OR UNMATURED, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, THEN
EXISTING OR THEREAFTER ARISING, IN LAW, EQUITY OR OTHERWISE, THAT ARE BASED IN
WHOLE OR IN PART ON ANY ACT OR OMISSION, TRANSACTION, EVENT OR OTHER OCCURRENCE
TAKING PLACE ON OR PRIOR TO THE EFFECTIVE DATE IN ANY WAY RELATING OR PERTAINING
TO THE DEBTORS, THE REORGANIZED DEBTORS, CORE-MARK NEWCO, THE CHAPTER 11 CASES,
THE PLAN OR THE DISCLOSURE STATEMENT EXCEPT FOR CASES OF WILLFUL
38
MISCONDUCT OR GROSS NEGLIGENCE. THE DEBTORS WILL FUND THE PURCHASE OF TAIL
LIABILITY COVERAGE UNDER THE DEBTORS' DIRECTORS AND OFFICERS INSURANCE POLICIES.
E. EXCULPATION
THE DEBTORS, THE REORGANIZED DEBTORS, CORE-MARK NEWCO, THE D&O
RELEASEES, THE POST-PETITION LENDERS, THE PRE-PETITION LENDERS, THE AGENTS, THE
OLD NOTES TRUSTEES, THE COMMITTEE, THE POST CONFIRMATION TRUST, AND THE POST
CONFIRMATION ADVISORY BOARD, AND THEIR MEMBERS, EMPLOYEES, AND PROFESSIONALS
(ACTING IN SUCH CAPACITY) SHALL NEITHER HAVE NOR INCUR ANY LIABILITY TO ANY
PERSON OR ENTITY FOR ANY PRE- OR POST-PETITION ACT TAKEN OR OMITTED TO BE TAKEN
IN CONNECTION WITH OR RELATED TO THE FORMULATION, NEGOTIATION, PREPARATION,
DISSEMINATION, IMPLEMENTATION, ADMINISTRATION, CONFIRMATION OR OCCURRENCE OF THE
EFFECTIVE DATE 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 OR ANY OTHER PRE-PETITION OR POST-PETITION ACT TAKEN OR
OMITTED TO BE TAKEN IN CONNECTION WITH, OR IN CONTEMPLATION OF, RESTRUCTURING OF
THE DEBTORS.
F. DISCHARGE OF CLAIMS AND TERMINATION OF EQUITY INTERESTS
EXCEPT AS OTHERWISE PROVIDED HEREIN: (1) THE RIGHTS AFFORDED HEREIN AND
THE TREATMENT OF ALL CLAIMS AND EQUITY INTERESTS HEREIN SHALL BE IN EXCHANGE FOR
AND IN COMPLETE SATISFACTION, DISCHARGE AND RELEASE OF CLAIMS AND EQUITY
INTERESTS OF ANY NATURE WHATSOEVER, INCLUDING ANY INTEREST ACCRUED ON CLAIMS
FROM AND AFTER THE PETITION DATE, AGAINST ANY DEBTOR OR ANY OF ITS RESPECTIVE
ASSETS OR PROPERTIES, (2) ON THE EFFECTIVE DATE, ALL SUCH CLAIMS AGAINST, AND
EQUITY INTERESTS IN, ANY DEBTOR SHALL BE SATISFIED, DISCHARGED AND RELEASED IN
FULL AND (3) ALL PERSONS AND ENTITIES SHALL BE PRECLUDED FROM ASSERTING AGAINST
ANY REORGANIZED DEBTOR, ITS SUCCESSORS OR ITS ASSETS OR PROPERTIES ANY OTHER OR
FURTHER CLAIMS OR EQUITY INTERESTS BASED UPON ANY ACT OR OMISSION, TRANSACTION
OR OTHER ACTIVITY OF ANY KIND OR NATURE THAT OCCURRED PRIOR TO THE CONFIRMATION
DATE.
G. INJUNCTION
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE PLAN, ALL HOLDERS OF
CLAIMS AND EQUITY 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 ANY SUCH CLAIM OR EQUITY INTEREST AGAINST THE
DEBTORS, THEIR ESTATES, CORE-MARK NEWCO OR THE REORGANIZED DEBTORS UNLESS A
PREVIOUS ORDER MODIFYING THE STAY PROVIDED UNDER SECTION 362 OF THE BANKRUPTCY
CODE WAS ENTERED BY THE COURT; (b) THE ENFORCEMENT, ATTACHMENT, COLLECTION OR
RECOVERY BY ANY MANNER OR MEANS OF ANY JUDGMENT, AWARD, DECREE OR ORDER AGAINST
THE DEBTORS, THEIR ESTATES, CORE-MARK NEWCO OR THE REORGANIZED DEBTORS; (c)
CREATING, PERFECTING, OR ENFORCING ANY ENCUMBRANCE OF ANY KIND AGAINST THE
PROPERTY OR INTERESTS IN PROPERTY OF THE DEBTORS, THEIR ESTATES, CORE-MARK NEWCO
OR THE REORGANIZED DEBTORS; AND (d) ASSERTING ANY RIGHT OF SETOFF, SUBROGATION
OR RECOUPMENT OF ANY KIND AGAINST ANY OBLIGATION DUE FROM THE DEBTORS OR AGAINST
THE PROPERTY OF THE DEBTORS, THEIR ESTATES, CORE-MARK NEWCO OR THE REORGANIZED
DEBTORS WITH RESPECT TO ANY SUCH CLAIM OR EQUITY INTEREST, UNLESS SUCH RIGHT OF
SETOFF SUBROGATION OR RECOUPMENT HAS BEEN PREVIOUSLY ASSERTED IN A TIMELY FILED
PROOF OF CLAIM OR UNLESS ASSERTED AS A DEFENSE OR COUNTERCLAIM TO A CAUSE OF
ACTION BROUGHT BY THE REORGANIZED DEBTORS, CORE-MARK NEWCO OR THE POST
CONFIRMATION TRUST AFTER THE EFFECTIVE DATE. WITH RESPECT TO FSA RESERVE
PARTICIPANTS, TO THE EXTENT THAT ANY FSA RESERVE PARTICIPANT IS ENTITLED TO
SETOFF AGAINST THE FSA RESERVE BECAUSE IT HAS MET ALL OF THE REQUIREMENTS IN THE
BANKRUPTCY COURT ORDER ESTABLISHING THE FSA RESERVE FOR SETOFF AGAINST SUCH FSA
RESERVE, SUCH SETOFF RIGHT SHALL BE PRESERVED AGAINST THE POST-CONFIRMATION
TRUST.
H. POLICE AND REGULATORY POWERS
NOTWITHSTANDING THE FOREGOING, THE RELEASES, EXCULPATION AND INJUNCTION
OUTLINED HEREIN SHALL NOT PRECLUDE A GOVERNMENTAL ENTITY FROM ENFORCING ITS
POLICE AND REGULATORY POWERS.
39
ARTICLE XIII.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence
of the Effective Date, the Bankruptcy Court shall retain such jurisdiction over
the Chapter 11 Cases after the Effective Date as legally permissible, including
jurisdiction to:
1. allow, disallow, determine, liquidate, classify, estimate or
establish the priority or secured or unsecured status of any Claim or Equity
Interest, including the resolution of any request for payment of any
Administrative Claim and the resolution of any and all objections to the
allowance or priority of Claims or Equity Interests;
2. grant or deny any applications for allowance of compensation
or reimbursement of expenses authorized pursuant to the Bankruptcy Code or the
Plan, for periods ending on or before the Effective Date;
3. resolve any matters related to the assumption, assumption and
assignment or rejection of any executory contract or unexpired lease to which
any Debtor is party or with respect to which any Debtor 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
pursuant to Article VII herein to add or strike any executory contracts or
unexpired leases to the list of executory contracts and unexpired leases to be
assumed;
4. ensure that distributions to Holders of Allowed Claims are
accomplished pursuant to the provisions hereof;
5. decide or resolve any motions, adversary proceedings,
contested or litigated matters and any other matters and grant or deny any
applications involving the Debtors;
6. enter such orders as may be necessary or appropriate to
implement or consummate the provisions hereof and all contracts, instruments,
releases, indentures and other agreements or documents created in connection
with the Plan or the Disclosure Statement;
7. resolve any cases, controversies, suits or disputes that may
arise in connection with the occurrence of the Effective Date, interpretation or
enforcement of the Plan or any Person's or Entity's obligations incurred in
connection with the Plan;
8. issue injunctions, enter and implement other orders or take
such other actions as may be necessary or appropriate to restrain interference
by any Person or Entity with occurrence of the Effective Date or enforcement of
the Plan, except as otherwise provided herein;
9. resolve any cases, controversies, suits or disputes with
respect to the releases, injunction and other provisions contained in Article
XII hereof and enter such orders as may be necessary or appropriate to implement
such releases, injunction and other provisions;
10. enter and implement such orders as are necessary or
appropriate if the Confirmation Order is for any reason modified, stayed,
reversed, revoked or vacated;
11. determine any other matters that may arise in connection with
or relate to this Plan, the Disclosure Statement, the Confirmation Order or any
contract, instrument, release, indenture or other agreement or document created
in connection with the Plan or the Disclosure Statement; and
12. enter an order and/or final decree concluding the Chapter 11
Cases.
40
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
A. Effectuating Documents, Further Transactions and Corporation Action
Each of the Debtors and Reorganized Debtors is authorized to execute,
deliver, file or record such contracts, instruments, releases and other
agreements or documents and take such actions as may be necessary or appropriate
to effectuate, implement and further evidence the terms and conditions hereof
and the notes and securities issued pursuant hereto.
Prior to, on or after the Effective Date (as appropriate), all matters
provided for hereunder that would otherwise require approval of the shareholders
or directors of the Debtors or Reorganized Debtors shall be deemed to have
occurred and shall be in effect prior to, on or after the Effective Date (as
appropriate) pursuant to the applicable general corporation law of the states
where each of the Debtors is organized without any requirement of further action
by the shareholders or directors of any Debtor or Reorganized Debtor.
B. Dissolution of Committee
The Creditors' Committee shall be dissolved on the Effective Date, and
members shall be released and discharged from all rights and duties arising
from, or related to, the Chapter 11 Cases provided that the Debtors shall pay
the reasonable fees and expenses of the Committee's Professionals incurred in
connection with winding up the Chapter 11 Cases.
C. Payment of Statutory Fees
All fees payable pursuant to section 1930(a) of Title 28 of the United
States Code, as determined by the Bankruptcy Court at the hearing pursuant to
section 1128 of the Bankruptcy Code, shall be paid for each quarter (including
any fraction thereof) until the Chapter 11 Case is converted, dismissed or
closed, whichever occurs first.
D. Modification of Plan
Subject to the limitations contained in the Plan, (1) the Debtors, with
the consent of the Committee, reserve the right, in accordance with the
Bankruptcy Code and the Bankruptcy Rules, to amend or modify the Plan prior to
the entry of the Confirmation Order and (2) after the entry of the Confirmation
Order, the Debtors or the Reorganized Debtors, as the case may be, with the
consent of the Committee or the Post Confirmation Trust Advisory Board, 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.
E. Revocation of Plan
The Debtors reserve the right to revoke or withdraw the Plan prior to
the Confirmation Date and to file subsequent plans of reorganization. If the
Debtors revoke or withdraw the Plan, or if Confirmation or occurrence of the
Effective Date does not occur, then (a) the Plan shall be null and void in all
respects, (b) any settlement or compromise embodied in the Plan (including the
fixing or limiting to an amount certain any Claim or Equity Interest or Class of
Claims or Equity Interests), assumption or rejection of executory contracts or
leases affected by the Plan, and any document or agreement executed pursuant
hereto, shall be deemed null and void, and (c) nothing contained in the Plan
shall (i) constitute a waiver or release of any Claims by or against, or any
Equity Interests in, such Debtors or any other Person (ii) prejudice in any
manner the rights of such Debtors or any other Person, or (iii) constitute an
admission of any sort by the Debtors or any other Person.
F. Environmental Liabilities
Nothing in the Plan discharges, releases or precludes any environmental
liability that is not a Claim. Furthermore, nothing in the Plan discharges,
releases or precludes any environmental claim of the United States that arises
on or after the Confirmation Date or releases any Reorganized Debtor from
liability under environmental law as the owner or operator of property that such
Reorganized Debtor owns or operates after the Confirmation Date. In
41
addition, nothing in the Plan releases or precludes any environmental liability
to the United States as to any Person or Entity other than the Debtors or
Reorganized Debtors. Nothing in the Plan enjoins the United States from
asserting or enforcing outside the Bankruptcy Court any liability described in
this paragraph. Other than as specifically stated in this paragraph, the Debtors
and Reorganized Debtors reserve their right to assert any and all defenses to
the assertion or enforcement by the United States or any other person of any
liability described in this paragraph.
G. Successors and Assigns
The rights, benefits and obligations of any Person or Entity named or
referred to herein shall be binding on, and shall inure to the benefit of any
heir, executor, administrator, successor or assign of such Person or Entity.
H. Reservation of Rights
Except as expressly set forth herein, this Plan shall have no force or
effect unless the Bankruptcy Court shall enter the Confirmation Order. None of
the filing of this Plan, any statement or provision contained herein, or the
taking of any action by the Debtors with respect to this Plan shall be or shall
be deemed to be an admission or waiver of any rights of the Debtors with respect
to the Holders of Claims or Equity Interests prior to the Effective Date.
I. Section 1146 Exemption
Pursuant to section 1146(c) of the Bankruptcy Code, any transfers of
property pursuant hereto shall not be subject to any document recording tax,
stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, stamp act,
real estate transfer tax, mortgage recording tax or other similar tax or
governmental assessment in the United States, and the Confirmation Order shall
direct the appropriate state or local governmental officials or agents to forgo
the collection of any such tax or governmental assessment and to accept for
filing and recordation any of the foregoing instruments or other documents
without the payment of any such tax or governmental assessment.
J. Further Assurances
The Debtors, Reorganized Debtors, Core-Mark Newco and all Holders of
Claims receiving distributions hereunder and all other parties in interest
shall, from time to time, prepare, execute and deliver any agreements or
documents and take any other actions as may be necessary or advisable to
effectuate the provisions and intent of this Plan.
K. Entire Agreement
The Plan supersedes all previous and contemporaneous
negotiations, promises, covenants, agreements, understandings and
representations on such subjects, all of which have become merged and integrated
into the Plan.
L. Service of Documents
Any pleading, notice or other document required by the Plan to be
served on or delivered to any Reorganized Debtor or the Committee shall be sent
by first class U.S. mail, postage prepaid to:
42
Fleming Companies, Inc. Milbank Tweed Hadley & McCloy LLP
1945 Lakepoint Drive One Chase Manhattan Plaza
Lewisville, Texas 75057 New York, New York 10005
Attn: Rebecca A. Roof Attn: Dennis Dunne
Kirkland & Ellis LLP Pepper Hamilton LLP
200 E. Randolph Drive 100 Renaissance Center
Chicago, Illinois 60601 Suite 3600
Attn: Geoffrey A. Richards Detroit, Michigan 48243-1157
Janet S. Baer Attn: I. William Cohen
Robert S. Hertzberg
Pachulski, Stang, Ziehl, Young, Jones &
Weintraub PC
919 North Market Street
Sixteenth Floor
P.O. Box 8705
Wilmington, Delaware 19899-8705
Attn: Laura Davis Jones
43
M Filing of Additional Documents
On or before the Effective Date, the Debtors with the consent of the
Creditors' Committee may file with the Bankruptcy Court such agreements and
other documents as may be necessary or appropriate to effectuate and further
evidence the terms and conditions hereof.
Respectfully Submitted,
FLEMING COMPANIES, INC.
By: /s/ Rebecca A. Roof
-------------------------------------
Name: Rebecca A. Roof
Title: Interim Chief Financial Officer
OFFICIAL COMMITTEE OF UNSECURED CREDITORS
By: /s/ Paul S. Aronzon
-------------------------------------
Name: Paul S. Aronzon
--------------------------------
Title: Co-Counsel
-------------------------------
44