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' THIRD AMENDED
JOINT PLAN OF REORGANIZATION OF FLEMING COMPANIES, INC. AND ITS FILING
SUBSIDIARIES UNDER CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
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(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.
KIRKLAND & ELLIS LLP
James H. M. Sprayregen, P.C.
Richard L. Wynne
Janet S. Baer
Geoffrey A. Richards
200 East Randolph Drive
Chicago, IL 60601-6436
Telephone: (312) 861-2000
Facsimile: (312) 861-2200
and
PACHULSKI, STANG, ZIEHL, YOUNG,
JONES & WEINTRAUB P.C.
Laura Davis Jones
Ira D. Kharasch
919 North Market Street, Sixteenth Floor, P.O. Box
8705
Wilmington, Delaware 19899-8705 (Courier No.
19801)
Telephone: (302) 652-4100
Facsimile: (302) 652-4400
Co-Counsel for the Debtors and Debtors in
Possession
MILBANK TWEED HADLEY & MCCLOY LLP
Paul Aronzon
Dennis Dunne
One Chase Manhattan Plaza
New York, NY 10005
(212) 530-5000
and
PEPPER HAMILTON LLP
I. William Cohen
Robert S. Hertzberg
Dennis S. Kayes
100 Renaissance Center
Suite 3600
Detroit, MI 48243-1157
(313) 259-7110
Co-Counsel for the Official Committee of
Unsecured Creditors
Dated: May 11, 2004
TABLE OF CONTENTS
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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. Defined Terms.................................................................................. 1
ARTICLE II. UNCLASSIFIED CLAIMS.................................................................................. 13
A. Administrative Claims.......................................................................... 13
B. Priority Tax Claims............................................................................ 14
C. DIP Claims..................................................................................... 15
ARTICLE III. CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND EQUITY INTERESTS.............................. 15
A. Summary........................................................................................ 15
B. Classification and Treatment................................................................... 16
C. Additional Provisions Governing Reclamation Claims............................................. 20
D. Special Provision Governing Unimpaired Claims.................................................. 20
ARTICLE IV. ACCEPTANCE OR REJECTION OF THE PLAN.................................................................. 20
A. Voting Classes................................................................................. 20
B. Acceptance by Impaired Classes................................................................. 20
C. Presumed Acceptance of Plan.................................................................... 21
D. Presumed Rejection of Plan..................................................................... 21
E. Non-Consensual Confirmation.................................................................... 21
ARTICLE V. MEANS FOR IMPLEMENTATION OF THE PLAN.................................................................. 21
A. Substantive Consolidation...................................................................... 21
B. Continued Corporate Existence and Vesting of Assets in the Reorganized Debtors................. 21
C. Cancellation of Old Notes, Old Stock and Other Equity Interests................................ 22
D. Issuance of New Securities; Execution of Related Documents..................................... 22
E. Restructuring Transactions..................................................................... 22
F. Corporate Governance, Directors and Officers, and Corporate Action............................. 23
G. PCT............................................................................................ 24
H. RCT............................................................................................ 26
I. Creation of Professional Fee Escrow Account.................................................... 28
ARTICLE VI. DEBTORS' RETAINED CAUSES OF ACTION................................................................... 28
A. Maintenance of Causes of Action................................................................ 28
B. Preservation of Causes of Action............................................................... 28
C. Preservation of All Causes of Action Not Expressly Settled or Released......................... 31
ARTICLE VII. FUNDING OF THE PLAN................................................................................. 31
A. Exit Financing Facility, Obtaining Cash for Plan Distributions and Transfers of Funds
Among the Debtors and the Reorganized Debtors.................................................. 31
B. Tranche B Loan................................................................................. 32
C. Sale of Assets................................................................................. 32
ARTICLE VIII. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.............................................. 32
A. Assumption/Rejection of Executory Contracts and Unexpired Leases............................... 32
B. Claims Based on Rejection of Executory Contracts or Unexpired Leases........................... 32
C. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed.......................... 32
D. Indemnification of Directors, Officers and Employees........................................... 33
E. Compensation and Benefit Programs.............................................................. 33
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F. Insured Claims................................................................................. 33
ARTICLE IX. PROVISIONS GOVERNING DISTRIBUTIONS................................................................... 35
A. Distributions for Claims Allowed as of the Effective Date...................................... 35
B. Distributions by Core-Mark Newco, the PCT and the RCT.......................................... 35
C. Interest on Claims............................................................................. 35
D. Compliance with Tax Requirements/Allocations................................................... 35
E. Delivery of Distributions and Undeliverable or Unclaimed Distributions......................... 35
F. Distribution Record Date....................................................................... 36
G. Timing and Calculation of Amounts to be Distributed............................................ 36
H. Minimum Distribution........................................................................... 37
I. Allowance or Resolution Setoffs................................................................ 37
J. Old Notes...................................................................................... 37
K. Failure to Surrender Canceled Instruments...................................................... 37
L. Lost, Stolen, Mutilated or Destroyed Debt Securities........................................... 37
M. Share Reserve.................................................................................. 38
N. Settlement of Claims and Controversies......................................................... 38
ARTICLE X. PROCEDURES FOR RESOLUTION OF DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS............................. 38
A. Resolution of Disputed Claims.................................................................. 38
B. Allowance of Claims............................................................................ 39
C. Controversy Concerning Impairment.............................................................. 39
D. Impact on Pending Litigation; Pension Plans.................................................... 39
E. Settlement of Claims and Controversies......................................................... 40
F. Special Provisions Regarding Reclamation Claims................................................ 41
ARTICLE XI. CONDITIONS PRECEDENT TO CONFIRMATION AND OCCURRENCE OF THE EFFECTIVE DATE OF THE PLAN................ 42
A. Conditions Precedent to Confirmation........................................................... 42
B. Conditions Precedent to Occurrence of the Effective Date....................................... 42
C. Waiver of Conditions........................................................................... 43
D. Effect of Non-occurrence of Conditions to Occurrence of the Effective Date..................... 43
ARTICLE XII. DISCHARGE, RELEASE, INJUNCTION AND RELATED PROVISIONS............................................... 44
A. Subordination.................................................................................. 44
B. MUTUAL RELEASES BY RELEASEES................................................................... 44
C. RELEASES BY HOLDERS OF CLAIMS.................................................................. 44
D. INDEMNIFICATION................................................................................ 45
E. EXCULPATION.................................................................................... 45
F. DISCHARGE OF CLAIMS AND TERMINATION OF EQUITY INTERESTS........................................ 45
G. INJUNCTION..................................................................................... 45
H. POLICE AND REGULATORY POWERS................................................................... 46
ARTICLE XIII. RETENTION OF JURISDICTION.......................................................................... 46
ARTICLE XIV. MISCELLANEOUS PROVISIONS............................................................................ 47
A. Effectuating Documents, Further Transactions and Corporation Action............................ 47
B. Dissolution of Committee....................................................................... 47
C. Payment of Statutory Fees...................................................................... 47
D. Modification of Plan........................................................................... 47
E. Revocation of Plan............................................................................. 47
F. Environmental Liabilities...................................................................... 48
G. Successors and Assigns......................................................................... 48
H. Reservation of Rights.......................................................................... 48
I. Section 1146 Exemption......................................................................... 48
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J. Further Assurances............................................................................. 48
K. Entire Agreement............................................................................... 48
L. Service of Documents........................................................................... 48
M. Filing of Additional Documents................................................................. 50
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' THIRD 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 Third 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. Defined Terms
Unless the context requires otherwise, the following terms shall have the
following meanings when used in capitalized form herein:
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 pursuant to the 5 1/4 Convertible Senior Subordinated
Notes Indenture in the original principal amount of $150 million and guaranteed
by all of the Filing Subsidiaries.
2. "5 1/4% Convertible Senior Subordinated Notes Indenture" means that
certain indenture dated March 15, 2001, between Bank One, N.A. and any
predecessor or successor in interest, as indenture trustee, and Fleming, as
amended or supplemented.
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3. "9 1/4% Senior Notes" means the 9 1/4% Senior Notes, CUSIP number
339130AX4, due 2010 issued by Fleming pursuant to the 9 1/4 Senior Notes
Indenture in the original principal amount of $200 million and guaranteed by all
of the Filing Subsidiaries.
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 pursuant
to the 97/8% Senior Notes Indenture in the original principal amount of $260
million and guaranteed by all of the Filing Subsidiaries.
6. "9 7/8% Senior Subordinated Notes Indenture" means that certain
indenture dated April 15, 2002, between Bank One, N.A. and any predecessor or
successor in interest, 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 pursuant to the 10 1/8% Senior Notes
Indenture in the original principal amount of $355 million and guaranteed by all
of the Filing Subsidiaries.
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 pursuant to the 105/8% Senior Subordinated Notes Indenture in the
original principal amount of $400 million and guaranteed by all of the Filing
Subsidiaries.
10. "10 5/8% Senior Subordinated Notes Indenture" means that certain
indenture dated July 25, 1997, between Bank One, N.A. and any predecessor or
successor in interest 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. "Administrative Claims Guarantee" has the meaning ascribed to it in
the Revised Term Sheet.
14. "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.
15. "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.
16. "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 that either is not a Disputed Claim or has
been allowed by a Final Order; (c) a Claim that is determined by the
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Debtors, the PCT or the RCT 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 PCT or RCT 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 PCT, the RCT 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, subject to, and as
consistent with, the treatment provided in Class 3(B) and Class 5 for the
Holders of Reclamation Claims.
17. "Allowed Claim" means an Allowed Claim in the particular Class
described.
18. "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.
19. "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.
20. "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.
21. "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.
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.
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.
3
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, the Committee or the OCRC 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, the PCT or the RCT 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.
43. "Class 3B Preferred Interests" means those certain secured preferred
interests to be issued by the RCT in favor of the Holders of Allowed Class 3B
Claims pursuant to the terms of the Revised Term Sheet.
44. "Class 5 Preferred Interests" means those certain junior secured
preferred interests to be issued by the RCT in favor of the Holders of Allowed
Class 5 Claims pursuant to the terms of the Revised Term Sheet.
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45. "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.
46. "Confirmation" means the entry of the Confirmation Order.
47. "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.
48. "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.
49. "Confirmation Order" means the order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
50. "Convenience Claims" means those General Unsecured Claims in Class 7
herein, as described in section III.B.9 herein.
51. "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.
52. "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).
53. "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.
54. "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.
55. "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.
56. "Debtors" means Fleming and its Filing Subsidiaries, as debtors in
the Chapter 11 Cases.
57. "Deductible Amount" means the per-occurrence deductible amount
payable by the applicable Debtor(s) under a respective insurance policy.
58. "DIP Claim" means a Claim arising under or as a result of the DIP
Credit Facility, including letters of credit issued thereunder.
59. "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.
60. "Disclosure Statement" means the Third Amended Disclosure Statement
in Support of Debtors' and Official Committee of Unsecured Creditors' Third
Amended Joint Plan of Reorganization of Fleming Companies, Inc., and its Filing
Subsidiaries under Chapter 11 of the Bankruptcy Code dated May __, 2004, as
amended, supplemented, or modified from time to time, describing the Plan, that
is prepared and distributed in accordance with the Bankruptcy Code.
5
61. "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 PCT, the RCT 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.
62. "Distribution Record Date" means the Effective Date unless a
different date is ordered by the Bankruptcy Court.
63. "DSD Settlement Agreement" means that Statement of Settlement
Agreement between Debtors and DSD Class Plaintiffs dated February 5, 2004.
64. "DSD Settlement Fund" means the fund established under the DSD
Settlement Agreement in the amount of $17.5 million.
65. "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.
66. "DTC" means The Depository Trust Company.
67. "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.
68. "Entity" means an entity as defined in section 101(15) of the
Bankruptcy Code.
69. "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.
70. "Estate" means the estate of each Debtor created by section 541 of
the Bankruptcy Code upon the commencement of the Chapter 11 Cases.
71. "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.
72. "Exchange Agent" means the institution engaged by the Debtors to
conduct the exchange of certain securities as provided for herein.
73. "Excluded Releasees" means those parties listed on Exhibit B filed
herewith, which Exhibit shall be mutually agreed upon by the Debtors and the
Committee.
74. "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.
75. "File" or "Filed" means file or filed with the Bankruptcy Court in
the Chapter 11 Cases.
76. "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.;
6
Piggly Wiggly Company; Progressive Realty, Inc.; Rainbow Food Group, Inc.;
Retail Investments, Inc.; Retail Supermarkets, Inc.; RFS Marketing Services,
Inc.; and Richmar Foods, Inc.
77. "Final Decree" means the decree contemplated under Bankruptcy Rule
3022.
78. "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.
79. "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.
80. "First Administrative Bar Date" means January 15, 2004.
81. "First Substantial Contribution Claims Bar Date" means _____________
, 2004, which shall be the last date by which (i) a professional not retained by
the Debtors, the Committee or the OCRC under section 327 or 363 of the
Bankruptcy Code may file a Claim for fees incurred on or before June 1, 2004,
alleged to be beneficial or necessary towards completion of the Chapter 11 Cases
as outlined in section 330 of the Bankruptcy Code and/or (ii) any other party
may file a Claim for fees incurred on or before June 1, 2004, alleged to be for
a substantial contribution under section 503(b) of the Bankruptcy Code.
82. "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 December 3, 2003.
83. "Fleming" means Fleming Companies, Inc.
84. "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.
85. "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.
86. "FSA Reserve" 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. "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.
88. "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.
89. "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.
90. "Impaired Claim" means a Claim classified in an Impaired Class of
Claims.
91. "Impaired Class" means each of the Classes that is not an Unimpaired
Class.
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92. "Indentures" means, collectively, the 5 1/4% Convertible Senior
Subordinated Notes Indenture, the 9 1/4% Senior Notes Indenture, the 97/8 %
Senior Subordinated Notes Indenture, the 101/8 % Senior Notes Indenture and the
105/8 % Senior Subordinated Notes Indenture.
93. "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.
94. "Insurance Security" means the certain letters of credit issued by
third-parties to secure the Debtors' liabilities to the Insurers under the
Insurance Program.
95. "Insurers" means the insurance carriers that provide insurance
policies to the Debtors pursuant to the Insurance Program.
96. "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.
97. "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.
98. "Litigation Claims" means all Avoidance Actions and Vendor
Deductions.
99. "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.
100. "Master Ballots" mean the master ballots accompanying the Disclosure
Statement upon which Nominee Holders of Old Notes shall indicate Holders of Old
Notes' acceptance or rejection of the Plan in accordance with the Voting
Instructions.
101. "Net Non-TLV Reclamation Claims" means total Allowed Non-TLV
Reclamation Claims reduced by $13 million.
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. "Non-TLV Guaranty" means that certain secured junior guaranty
provided by Core-Mark Newco to the Holders of Allowed Non-TLV Reclamation
Claims, the terms and conditions of which are outlined in the Revised Term
Sheet.
105. "Non-TLV Reclamation Claim" means a Claim the Holder of which (i)
did not participate in the Trade Credit Program and (ii) asserts that all, or
any portion, of such Claim is entitled to be granted priority and/or to be
secured by a lien in accordance with 546(c)(2) of the Bankruptcy Code.
106. "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, the PCT Representative or the RCT Representative, as
applicable, by which the Debtors, the PCT Representative, the RCT Representative
or any party in interest has to file an objection to any Claim not previously
allowed.
107. "OCRC" means the Official Committee of Reclamation Creditors.
108. "Old Notes" means the 5 1/4% Convertible Senior Subordinated Notes,
the 9 1/4% Senior Notes, the 97/8% Senior Subordinated Notes, the 101/8% Senior
Notes and the 105/8% Senior Subordinated Notes.
8
109. "Old Notes Trustees" means Manufacturers and Traders Trust Company,
Bank One, N.A, The Bank of New York, Bankers Trust Company and any of their
predecessors or successors in interest.
110. "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 Insurance Company
pursuant to the Old Republic Program agreement and the Old Republic Policies
that were issued thereunder.
111. "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.
112. "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.
113. "Old Senior Notes" means the 9 1/4% Senior Notes and the 101/8%
Senior Notes.
114. "Old Senior Subordinated Notes" means the 51/4% Convertible Senior
Subordinated Notes, the 97/8% Senior Subordinated Notes and the 105/8% Senior
Subordinated Notes.
115. "Old Stock" means all of the issued and outstanding shares of
Fleming common stock, $.01 par value per share.
116. "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.
117. "Other Secured Claims" means secured claims not in Classes 1(B), 2,
3(B) or 3(C).
118. "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.
119. "Over-Deductible Amount" means that portion of an Insured Claim that
exceeds the Deductible Amount.
120. "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.
121. "PCT Advisory Board" means that board created to advise the PCT, as
outlined in section V.G.2 herein.
122. "PCT 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 PCT Representative on or before the Effective
Date, and which shall govern the PCT.
123. "PCT Representative" means the trustee under the PCT Agreement.
124. "PCT" means that trust that shall be created pursuant to the Plan
and the PCT Agreement for the purposes of carrying out certain provisions of the
Plan.
9
125. "Person" means a person as defined in section 101(41) of the
Bankruptcy Code.
126. "Petition Date" means April 1, 2003, the date on which the Debtors
filed their petitions for relief commencing the Chapter 11 Cases.
127. "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.
128. "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.
129. "Preference Actions" means those avoidance actions provided for in
section 547 of the Bankruptcy Code.
130. "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.
131. "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.
132. "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.
133. "Pre-Petition Lenders' Secured Claims" means the Claims arising
under the Pre-Petition Credit Agreement.
134. "Pre-Petition Non-TLV Reclamation Claim Reduction" means $13
million.
135. "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.
136. "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.
137. "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.
138. "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.
139. "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.
10
140. "PMSI" means a purchase money security interest as defined in
Section 9-312 of the Uniform Commercial Code.
141. "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.
142. "RCT" means that trust that shall be created pursuant to the Plan
and the RCT Agreement for the purposes of carrying out certain provisions of the
Plan.
143. "RCT Agreement" means that agreement, a draft of which is attached
to the Disclosure Statement as Exhibit 12, that shall be entered into by the
Debtors, the OCRC and the RCT Representative on or before the Effective Date and
which shall govern the RCT.
144. "RCT Representative" means the representative selected to administer
the RCT.
145. "Reclamation Assets" means deductions, over-wires, preference
claims, Causes of Action and other rights of the Debtors as against the Holders
of Reclamation Claims, other than the post-petition deductions and post-petition
overwires with respect to the Fleming Convenience business which shall be
transferred to Core-Mark Newco.
146. "Reclamation Claims" means TLV Reclamation Claims and Non-TLV
Reclamation Claims.
147. "Reclamation Creditor" means any Claim Holder that asserts that all,
or any portion, of its Claim is entitled to be granted priority and/or to be
secured by a lien in accordance with 546(c)(2) of the Bankruptcy Code.
148. "Reclamation Liabilities" means any and all claims asserted against
the Debtors by the Reclamation Creditors, including Administrative Claims (other
than Administrative Claims of Fleming Convenience), Priority Claims, TLV
Reclamation Claims and Non-TLV Reclamation Claims, but not including any General
Unsecured Claims held by Reclamation Creditors.
149. "Record Date" means [_______], 2004.
150. "Releasees" means each of the Debtors, the Reorganized Debtors,
Core-Mark Newco, each of the Pre-Petition Lenders, the Agents, the Pre-Petition
Agents, the Old Notes Trustees, the Post-Petition Lenders, the Tranche B
Lenders, the Committee, the OCRC, each member of the Committee and the OCRC, the
PCT, the PCT Representative, the PCT Advisory Board, the RCT, the RCT
Representative and the RCT Advisory Board, and the affiliates, agents and
professionals of each of the foregoing, including, without limitation,
professionals acting as officers of the Debtors, each in their capacity as such;
provided however that Excluded Releasees shall not be Releasees.
151. "Remaining Pension Plans" means, collectively, the Pension Plan of
S.M. Flickinger Co., Inc., the Godfrey Company subsidiaries Pension Plan, the
ABComarkets, Inc. Retirement Plan for Arizona Warehouse and Distribution
Employees and Core-Mark International, Inc. Non-Bargaining Employees Pension
Plan.
152. "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.
153. "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.
154. "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.
11
155. "Revised Term Sheet" means the Revised Term Sheet to Resolve
Objections to the Debtors' Chapter 11 Plan and for Treatment of Reclamation
Claims entered into on May 3, 2004 and attached as Exhibit 13 to the Disclosure
Statement.
156. "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.
157. "Second Administrative Bar Date" means that date that is forty-five
(45) days after the Effective Date.
158. "Second Substantial Contribution Claims Bar Date" means the date 45
days after the Effective Date, which shall be the last date by which (i) a
professional not retained by the Debtors, the Committee or the OCRC under
section 327 or 363 of the Bankruptcy Code may file a Claim for fees incurred on
or before June 1, 2004, alleged to be beneficial or necessary towards completing
of the Chapter 11 Cases as outlined in section 330 of the Bankruptcy Code and/or
(ii) any other party may file a Claim for fees incurred on or before June 1,
2004 alleged to be for a substantial contribution under section 503(b) of the
Bankruptcy Code.
159. "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.
160. "Senior Note Claims" means those Claims derived from or based upon
the Old Senior Notes.
161. "Senior Notes Indentures" means the 9 1/4% Senior Notes Indenture
and the 10 1/8 Senior Notes Indenture.
162. "Senior Notes Indenture Trustee" means The Bank of New York.
163. "Senior Subordinated Note Claims" means those Claims derived from or
based upon 5 1/4% Convertible Senior Subordinated Notes, the 97/8 % Senior
Subordinated Notes and the 105/8 % Senior Subordinated Notes.
164. "TLV Guaranty" means that certain secured guaranty provided by
Core-Mark Newco to the Holders of Allowed TLV Reclamation Claims, the terms and
conditions of which are outlined in the Revised Term Sheet.
165. "TLV Reclamation Claim" means a Claim the Holder of which (i)
participated in the Trade Credit Program as outlined in the Final DIP order and
(ii) asserts that all, or any portion, of such Claim is entitled to be granted
priority and/or to be secured by a lien in accordance with 546(c)(2) of the
Bankruptcy Code.
166. "Trade Credit Program" means that program established under the
Final DIP Order providing a junior lien to Approved Trade Creditors and Holders
of TLV Reclamation Claims who made post-petition credit available to the
Debtors.
167. "Tranche B Lenders" means those lenders who are participants in the
Tranche B Loan.
168. "Tranche B Loan" means the loan of up to $70,000,000 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.
169. "Unclassified Claims" means those Administrative and Priority Claims
described in Article II herein.
170. "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.
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171. "Unimpaired Claims" means Claims in an Unimpaired Class.
172. "Unimpaired Class" means an unimpaired Class within the meaning of
section 1124 of the Bankruptcy Code.
173. "Unsecured Claim" means any Claim against any Debtor that is not a
Secured Claim, Administrative Claim, DIP Claim, Priority Tax Claim, Other
Priority Claim, Other Secured Claim or a Class 3B or Class 5 Claim consistent
with the Revised Term Sheet.
174. "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.
175. "Voting Class" means any class of Claims entitled to vote on the
Plan.
176. "Voting Deadline" means the date stated in the Voting Instructions
by which all Ballots must be received.
177. "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.
178. "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.
179. "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 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(2).
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(2) Those professionals not retained by the Debtors, the Committee or the OCRC
under section 327 or 363 of the Bankruptcy Code filing a Claim for fees
alleged to be necessary or beneficial towards completion of the Chapter 11
Cases as outlined in section 330 of the Bankruptcy Code, or any other
party making a Claim for fees
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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, 328, and 363 of the Bankruptcy Code; (ii) expenses of
members of the Official Committee of Unsecured Creditors and the OCRC; (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,
the PCT Representative and the RCT 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. Any
liability for Professional Fees above the amount in the Professional Fee Escrow
Account which are awarded to a professional not retained by the Debtors, the
Committee, or the OCRC under section 327 or 363 of the Bankruptcy Code for fees
alleged to be necessary or beneficial toward completion of this case as outlined
in section 330 of the Bankruptcy Code or otherwise to any other party for
allegedly making a substantial contribution under section 503(b) of the
Bankruptcy Code, shall be a liability of the PCT and shall be paid by the PCT as
an Administrative Claim.(3)
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.(4)
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
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for allegedly making a substantial contribution under section 503(b) of
the Bankruptcy Code are bound by the First and Second Substantial
Contribution Claims Bar Dates.
(3) The Professional Fee Escrow Account shall be held and administered by
Core-Mark Newco and any excess amount remaining in the Professional Fee
Escrow Account after all Professional Fee Claims have been paid shall be
retained by Core-Mark Newco.
(4) 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.
14
(90) day United States Treasuries on the Effective Date(5), in equal 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, commencing on, or as soon as
practicable after, the Effective Date 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 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) -- TLV Reclamation Claims Impaired -- entitled to vote
Class 3(C) -- DSD Trust Claims Impaired -- entitled to vote
Class 4 -- PACA/PASA Claims Unimpaired -- not entitled to vote
Class 5 -- Non-TLV Reclamation Claims Impaired -- entitled to vote
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
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(5) The financial projections attached as Exhibit 3 to the Disclosure
Statement assume an interest rate of 5%.
15
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.
(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 in
Cash 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. The Exit Financing Facility and the Tranche B Loan shall not be
secured by the assets transferred to the PCT or the RCT.
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.
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(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.
(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) -- TLV Reclamation Claims
(a) Classification: Class 3(B) consists of all Allowed TLV
Reclamation Claims.
(b) Treatment: On the Effective Date, or as soon as practicable
thereafter, the RCT, shall issue the Class 3B Preferred Interests in favor
of the Holders of Allowed TLV Reclamation Claims in the estimated
aggregate amount of such Allowed Claims under the terms and conditions
outlined in the Revised 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 RCT Assets entitling each Holder of
an Allowed TLV Reclamation Claim to its Ratable Proportion of the RCT
Assets up to the total amount of each Holders' Allowed TLV Reclamation
Claim, in full satisfaction, settlement, release and discharge of each
Allowed TLV Reclamation Claim against the RCT Assets. Reconciliation of
Class 3(B) Claims shall be done in accordance with section III.C. herein.
The Class 3B Preferred Interests shall earn interest which shall begin to
accrue 60 days after the Effective Date at the Wall Street Journal listed
prime rate.
As additional security for the Class 3B Preferred Interests,
Core-Mark Newco shall provide a junior secured guarantee under the terms
outlined in the Revised 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: Assuming the treatment outlined in the Revised
Term Sheet and herein is approved by the Court, Allowed Class 3(B) Claims
are currently estimated to be in the range of $43-$60 million as of the
effective date prior to giving effect to any of the deductions asserted by
the Debtors as of the Effective Date which shall be transferred to the RCT
and will be paid in full under the Plan by the RCT or Core-Mark Newco as
outlined in the Disclosure Statement and the Revised Term Sheet filed
therewith.
6. Class 3 (C) -- DSD Trust Claims
(a) Classification: Class 3(C) consists of all Allowed DSD Trust
Claims.
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(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.
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 -- Non-TLV Reclamation Claims
(a) Classification: Class 5 consists of Non-TLV Reclamation Claims.
(b) Treatment: On the Effective Date, or as soon as practicable
thereafter, the RCT, shall issue the Class 5 Preferred Interests in favor
of the Holders of Allowed Non-TLV Reclamation Claims in the estimated
aggregate amounts of their Allowed Claims under the terms and conditions
outlined in the Revised 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 RCT Assets entitling each Holder to its Ratable
Proportion of the RCT Assets after (i) all Class 3(B) Claims are paid in
full; and (ii) Core-Mark Newco is reimbursed for any payment under the TLV
Guaranty. Reconciliation of Class 5 Claims shall be done in accordance
with section III.C herein.
As additional security for the Class 5 Preferred Interests Core-Mark
Newco shall provide a junior secured guarantee under the terms outlined in
the Revised Term Sheet.
(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: Assuming the treatment outlined in the Revised
Term Sheet and herein is approved by the Court, Allowed Class 5 Claims are
currently estimated to be in the range of $62-$90 million as of the
Effective Date prior to giving effect to any of the deductions asserted by
the Debtors. Holders of Class 5 claims will be paid a Ratable Proportion
of their Allowed Non-TLV Reclamation Claim, up to the full amount of their
Allowed Net Non-TLV Reclamation Claim by the RCT or Core-Mark Newco as
outlined in the Disclosure Statement and the Revised Term Sheet. Further,
in the event the RCT has proceeds for distribution after satisfaction of
all Allowed TLV Reclamation Claims and Net Non-TLV Reclamation Claims and
repayment to Core-Mark Newco of advances under the TLV or Non-TLV
Guarantees, the Holders of Allowed Class 5 Claims shall be entitled to be
paid their pro rata share of the remaining RCT Assets up to the full
amount of their Allowed Non-TLV Reclamation Claim.
18
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.
(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, if any, available from the PCT after payment by the PCT of all
Claims and obligations required to be made by the PCT under the Plan or
the PCT Agreement. Pursuant to the Revised Term Sheet, the RCT shall pay
any excess proceeds, if available, after payment of all Claims and
obligations of the RCT, to the PCT.
(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(6).
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 $5,000 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.
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(6) Holders of Senior Notes shall receive a higher recovery due to their
contractual seniority to the Holders of Senior Subordinated Notes. Holders
of Senior Notes shall receive stock in Core-Mark Newco with a value equal
to approximately 11.5% of the Allowed amount of such Holder's Claim.
19
(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.
(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. Additional Provisions Governing Reclamation Claims
The total amount of Allowed Reclamation Claims to be satisfied by the RCT
shall be reconciled pursuant to the methodology described in Exhibit A attached
to the Revised Term Sheet, but in any event shall not exceed $150 million prior
to the application of any reduction including the Prepetition Non-TLV
Reclamation Claim Reduction. In the event the Allowed Reclamation Claims exceed
$150 million, the Allowed Non-TLV Reclamation Claims shall be reduced pro rata.
D. 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
20
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.
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
21
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 reasonable compensation, fees, expenses or
disbursements due to any of the Old Notes Trustees, agent or servicer pursuant
to the Indentures and the Plan, including, without limitation, attorneys' and
agents' fees, expenses and disbursements incurred by the Old Notes Trustees and
their predecessors, shall be paid directly to the Old Note Trustees by the
Debtors and shall not be deducted from any distributions to the Holders of
Claims and Equity Interests.
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. Fleming will then transfer to Core-Mark Holding
III a portion of Core-Mark Newco's stock to satisfy Disputed Claims and
Core-Mark Holdings III will hold such stock, not for its own account, but rather
in trust in its role as fiduciary for the benefit of holders of Disputed Claims
in Class 6. Fleming will distribute the Core-Mark Newco stock received from
Core-Mark Holdings III, and not transferred to Core-Mark Holdings III pursuant
to the preceding sentence, to its creditors in accordance with the Plan of
Reorganization. Core-Mark Holdings III, as fiduciary for holders of Disputed
Claims in Class 6, 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,
22
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, 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
23
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. PCT
1. Formation/Purpose
On the Effective Date or as soon as practicable thereafter, the Debtors
and the Committee will form the PCT 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 other than those which are Reclamation
Assets and the reconciliation and payment of Claims, other than Reclamation
Claims (except that reconciliation of Class 6 Claims of Reclamation Creditors,
but not the payment of such Claims, shall be the responsibility of the RCT).
2. Powers
The powers, authority, responsibilities and duties of the PCT and the
allocation of such powers, authority, responsibilities and duties between
Core-Mark Newco and the PCT, shall be set forth and governed by the PCT
Agreement to be mutually agreed upon by the Debtors and the Committee. A copy of
the draft PCT Agreement is attached to the Disclosure Statement as Exhibit 9.
The Debtors and the Committee shall also mutually agree upon appointment of the
PCT Representative who shall have the power to administer the PCT and will be
advised by the PCT Advisory Board as specified in the PCT Agreement. The PCT
Advisory Board shall consist of four members plus the PCT 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
mutually by the trade members of the Committee and the OCRC, which member 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 PCT do
not reasonably contemplate bringing) a Cause of Action other than a Cause of
Action which is a Reclamation Asset.
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 PCT Advisory Board
as well as the identity and affiliations of the PCT 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 PCT
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 PCT, the PCT Assets (the "PCT Assets") as outlined in
the PCT Agreement. The PCT Assets do not include any RCT Assets. Subject to the
preceding exclusion of all RCT Assets, the PCT Assets shall consist of all of
the following assets of the Debtors:
(a) cash balances sufficient to pay the estimated Administrative
Claims that are the responsibility of the PCT;
(b) non-reclamation 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;
(c) royalty payments owing to the Debtors related to the sale of
the Fleming wholesale operations;
(d) Litigation Claims which consist primarily of vendor-related
receivables, primarily for uncollected promotional allowances (e.g.
rebates, discounts, price reductions), unreimbursed funds related
24
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;
(e) Avoidance Actions, especially preference actions as outlined
in section 547 of the Bankruptcy Code;
(f) restricted cash, including the PACA account and the FSA
Reserves;
(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;
(h) any assets of the RCT referred or assigned to the PCT whether
vendor deductions, preference claims or otherwise (on terms that have been
mutually agreed upon by the RCT and the PCT);
(i) any cash proceeds of settlements for customer accounts
receivables, vendor deductions, over-wires and preferences (exclusive of
those related to either Fleming Convenience or the Reclamation Assets) in
excess of $9 million collected by the Debtors from April 1, 2004 to the
Effective Date which are being held in an escrow account;
(j) $3.0 million in cash for administration of the PCT; and
(k) all of the remaining assets of the Debtors, other than the
assets of the Reorganized Debtors and the assets of Fleming Convenience
which will have been transferred to Core-Mark Newco and the Reorganized
Debtors.
The PCT Assets do not include: (1) any of the Reclamation Assets; (2) any
of the assets of the continuing Fleming Convenience businesses which are to be
transferred to Core-Mark Newco and the Reorganized Debtors; (3) the stock of
Core-Mark Newco and the stock of the Reorganized Debtors; and (4) the
Professional Fee Escrow Account.
The PCT Assets shall be held by the PCT for the beneficiaries of the PCT
subject to the terms and conditions of the Plan and the PCT Agreement. The PCT
shall administer the directors and officers insurance policies maintained
pursuant to section XII.D. and all proceeds of such policies shall benefit the
D&O Releasees and the prepetition directors and officers of the Debtors who are
covered by the directors and officers insurance policies as well as the PCT to
the extent the PCT or other Party has a valid Claim against a D&O Releasee or a
prepetition director of officer of the Debtors who is covered by the director
and officer insurance policies.
4. Liabilities of the PCT
The liabilities transferred to the PCT shall include, but not necessarily
be limited to, Priority Tax Claims, Other Priority Non-Tax Claims, Property Tax
Claims, Other Secured Claims, PACA/PASA Claims, FSA liability, General Unsecured
Claims (solely for purposes of resolution), Convenience Claims and certain
Administrative Claims that have not been satisfied on the Effective Date of the
Plan, other than the Administrative Claims of Fleming Convenience and
Professional Fees incurred prior to the Effective Date which are paid by the
funds in the Professional Fee Escrow Account.
5. Funding
On the Effective Date, or as soon as practicable thereafter, the Debtors,
the Reorganized Debtors and Core-Mark Newco will transfer to the PCT certain
cash on hand and/or certain proceeds from the Exit Financing Facility and the
Tranche B Loan necessary for the PCT to make the payments required on Allowed
Claims pursuant to the Plan and the PCT Agreement. In addition, the PCT 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-
25
Mark Newco, the Reorganized Debtors and the PCT on the Effective Date are
outlined on Exhibit 3 to the Disclosure Statement.
6. Administrative Claims Guaranty
As set forth in the estimates included on Exhibit 3 of the Disclosure
Statement, the Debtors currently estimate that, on the Effective Date,
administrative claims transferred to the PCT shall total $52 million, consisting
of General accounts payable of $3 million, health and welfare benefits of $5
million, severance and stay program of $27 million and other administrative
claims of $17 million. In the event that such administrative claims that are
ultimately paid by the PCT after the Effective Date exceed the above referenced
estimated amounts by $4 million, such amounts over the $4 million shall be
reimbursed by Core-Mark Newco. In the event such administrative claims against
the Debtors currently anticipated to be satisfied post-Effective Date through
the PCT are, instead, settled through entry of an Order of the Bankruptcy Court
approving such settlement pre-Effective Date at a level lower than currently
budgeted in the PCT projections then, in such event, 50% of the net savings from
any such Court approved settlement below current budgeted levels (after
reasonable deduction for legal fees and other resolution costs) shall be paid to
the RCT on the Effective Date (the "Administrative Claims Savings"). Once the
aggregate distributions from the PCT to the RCT (inclusive of any Administrative
Claims Savings paid to the RCT), have reached $10 million then, in such event,
any additional distributions to the RCT shall effect a reduction of the maximum
amount of the Non-TLV Guaranty by an amount equal to 50% of any such aggregate
additional distributions. Notwithstanding the forgoing, the parties recognize
that the Bankruptcy Court could ultimately determine that certain of the
Administrative Claims which are subject to the Administrative Claim Guaranty may
be reclassified by the Court as priority claims and correspondingly, certain
priority claims may be reclassified as Administrative Claims. Irrespective of
such reclassification by the Bankruptcy Court, for purposes of calculating the
amount which may be owed, if any, on the Administrative Claim Guaranty, the
classification assigned to those claims as outlined in Exhibit 3 of the
Disclosure Statement shall govern.
7. PCT Beneficiaries
The beneficiaries of the PCT, after satisfaction of all liabilities to be
satisfied by the PCT as outlined in the Plan including Administrative Claims,
Priority Tax Claims, Other Priority Non-Tax Claims, Property Tax Claims,
PACA/PASA Claims, FSA liabilities, Convenience Claims and all PCT expenses,
shall be (i) Core-Mark Newco, in the amount necessary to reimburse Core-Mark
Newco for any payments made on the TLV Guaranty or Non-TLV Guaranty as outlined
herein; (ii) the RCT, in the event all Reclamation Claims and interest thereon
as applicable together with the Prepetition Non-TLV Reclamation Claim Reduction,
have not been paid in full by the RCT,(7) (iii) Core-Mark Newco in the amount
necessary to reimburse Core-Mark Newco for any payments made on the
Administrative Claims Guaranty in the event the Reclamation Claims and the
Prepetition Non-TLV Reclamation Claim Reduction have been paid in full by the
RCT and (iv) thereafter the Class 6 General Unsecured Creditors, at which time
the RCT will terminate with any remaining assets delivered to the PCT.
8. Good Faith
Each of the PCT Representative and the PCT Advisory Board shall act in
good faith in carrying out its duties and responsibilities and use its best
efforts to liquidate and resolve Claims, disputes and maximize the value of the
PCT's assets and minimize claims against the PCT.
H. RCT
1. Formation/Purpose
On the Plan Effective Date or as soon as practicable thereafter, the
Debtors, the OCRC and the Committee will form the RCT to administer certain
post-confirmation responsibilities under the Plan, including but not
- -------------------
(7) Holders of Class 5 Claims shall not be entitled to a double distribution
on account of any Non-TLV Reclamation Claims Reduction related payments
and the PCT shall establish its holdbacks or the RCT shall otherwise
adjust its distributions accordingly.
26
necessarily limited to those responsibilities associated with the pursuit and
collection of the Reclamation Assets and payment of Reclamation Claims.
2. Assets of the RCT
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 RCT the RCT Assets as outlined in the RCT Agreement or
the Revised Term Sheet. The RCT Assets shall include assets of the Debtors (more
specifically set forth in the Revised Term Sheet) as follows:
(a) Reclamation deductions, over-wires, preference claims, Causes of
Action and other rights of the Debtors as against the holders of
Reclamation Claims, other than the post-petition deductions and
post-petition over-wires with respect to Fleming Convenience which shall
be transferred to Core-Mark Newco;
(b) $3.0 million in cash for administration of the RCT; and
(c) Any cash proceeds which are collected by the Debtors from
Reclamation Creditors for payment of preference liability, deduction
liability and over-wire liability (except for post-petition vendor
deductions and post-petition over-wire liability related to Fleming
Convenience) from and after March 23, 2004 to the Effective Date which are
being held in an escrow account.
3. Liabilities of the RCT
The Reclamation Liabilities transferred to the RCT shall include any and
all claims asserted against the Debtors by the Reclamation Creditors, including
Administrative Claims (other than Administrative Claims of Fleming Convenience),
Priority Claims, TLV Reclamation Claims and Non-TLV Reclamation Claims, but not
including any General Unsecured Claims held by Reclamation Creditors.
4. Powers
The Powers, authority, responsibilities and duties of the RCT and the
allocation of such powers, authority, responsibilities and duties shall be set
forth and governed by the Revised Term Sheet and set forth more fully in the RCT
Agreement which shall be consistent with the Revised Term Sheet. A copy of the
draft RCT Agreement is attached to the Disclosure Statement as Exhibit 12. The
RCT shall be administered by the RCT Representative, to be selected by the OCRC.
In order to facilitate the claims reconciliation process and asset
liquidation, the PCT and the RCT shall enter into a transition services
agreement whereby the PCT shall provide resources to the RCT related to
effecting the Claims reconciliation process. Such resources shall include, but
not be limited to, access to the professional staff and employees of the PCT,
computer systems, data bases and other relevant information. The RCT shall
reimburse the PCT for the direct costs (e.g., professional staff and employee
expense) and allocation of the indirect costs (e.g., facilities, computers, data
storage facilities) with an allocation methodology to be agreed upon.
Notwithstanding the foregoing, the RCT shall have no obligation to reimburse the
PCT for indirect costs for the first 3 months after the Effective Date, or for
(i) direct costs for the first six months after the Effective Date and (ii)
indirect costs for months 4-6 after the Effective Date, up to an aggregate cap
of $1 million. On the Effective Date, the Debtors and the Committee shall, at
their option, either (i) have the Debtors provide an additional $1 million to
the RCT for administrative expenses of the RCT or (ii) have the PCT provide the
RCT with additional resources and services pursuant to the transition services
agreement with a value of up to an additional $1 million. However, once the RCT
has received aggregate distributions of $10 million from the PCT, inclusive of
any amounts paid to the RCT with respect to the Administrative Claims Savings
outlined in paragraph V.G.6. herein, the next $1 million in Cash otherwise to be
distributed by the PCT to the RCT shall, instead, be paid to Core-Mark Newco.
The RCT Representative shall be advised by an advisory board selected by
the OCRC with representation by Holders of TLV Reclamation Claims (but only
until TLV Reclamation Claims have been paid in full) and Holders of Non-TLV
Reclamation Claims. The TLV Reclamation Creditors shall be the primary
beneficiaries of the RCT and shall be entitled to be paid in full out of the
first distributions to be made by the RCT before the Non-TLV Reclamation
Creditors are entitled to any payment by the RCT.
27
5. Good Faith
Each of the RCT Representative and the RCT Advisory Board shall act in
good faith in carrying out its duties and responsibilities and use its
reasonable best efforts to liquidate and resolve Claims, disputes and maximize
the value of the RCT's assets and minimize claims against the RCT.
I. 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, the PCT, and the RCT, 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, the PCT, or the RCT, as
applicable and such vesting shall be consistent with the Revised Term Sheet.
Core-Mark Newco, the PCT, or the RCT, 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 PCT may commence, pursue and settle Causes of Action, as outlined
more fully in the PCT Agreement and the RCT may commence, pursue and settle the
Reclamation Causes of Action as outlined more fully in the RCT Agreement and the
Revised Term Sheet. Core-Mark Newco, the PCT and the RCT, 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. Notwithstanding any of the preceding, the retention and
vesting of Causes of Action shall conform to the specifications set forth in the
Revised Term Sheet.
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, the PCT, and the RCT, 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, the PCT, or the RCT, 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 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
28
(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 LLC and 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;
- 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;
29
- 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, except actions against the D&O
Releasees to the extent they are released by the Plan.
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.
30
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, the PCT, or
the RCT, as applicable, 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, the PCT, or the RCT, 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 PCT, the RCT 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, the PCT or the RCT, as applicable,
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, the PCT and the RCT 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, so long as such
sale is not inconsistent with the Revised Term Sheet.
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, the PCT, and the RCT, 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, the PCT, and the RCT, 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. The Exit Financing
Facility and the Tranche B Loan shall not be secured by the assets transferred
to the PCT or the RCT. The Exit Financing Facility shall be on substantially the
terms set forth in the Exit Facility Commitment Letter attached to the
Disclosure Statement as Exhibit 7.
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B. Tranche B Loan
The Tranche B Loan shall be a term credit facility in the amount of up to
$70 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 PCT, or the RCT, 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
Tranche B Put Agreement 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 the Causes of Action, available to
the Debtors 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, so long as such sale is not inconsistent with the Revised Term
Sheet.
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 PCT and the RCT 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
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default amount in Cash as soon as practicable after the Effective Date or on
such other terms as the parties to such 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
As further described in section XII.D., the D&O Releasees shall be
indemnified through the Debtors' directors and officers insurance policies up to
a collective limit equal to the amount of the Debtors' directors and officers
insurance proceeds, net of all defense costs and fees, actually payable in Cash,
to pay claims against the D&O Releasees.
E. Compensation and Benefit Programs
Except as otherwise expressly provided herein and excluding the Remaining
Pension Plans, 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 subject to section 4225(B) of ERISA.
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 Reorganized
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
Reorganized 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, Core-Mark Newco 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.
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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. Core-Mark Newco 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.
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
34
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.J 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, the PCT and the RCT
Except as otherwise provided herein, Core-Mark Newco, the PCT, or the RCT,
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 the
PCT reasonable compensation for such services and reimbursement of reasonable
expenses incurred in connection with such services upon the presentation of
invoices to the PCT. 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, the PCT, and the RCT 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.
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 claims based on Old Notes,
distributions with respect to such Claims will be made to the appropriate Old
Notes Trustee which will make distributions to Holders of Old Notes at the
address contained in the official record of the appropriate Old Note Trustee. To
the extent the Old Notes Trustee makes distributions to DTC, DTC will, in turn,
make appropriate
35
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. The
Debtors, the Reorganized Debtors, Core-Mark Newco, the PCT, and/or the RCT shall
have no liability for any action pertaining to the distributions made by the Old
Notes Trustees.
2. Undeliverable Distributions
(a) Holding of Undeliverable Distributions. If any distribution to a
Holder of an Allowed Claim is returned to Core-Mark Newco, the PCT, the
RCT or an Old Notes Trustee as undeliverable, no further distributions
shall be made to such Holder unless and until Core-Mark Newco, the PCT,
the RCT or an Old Notes Trustee is notified in writing of such Holder's
then-current address. Undeliverable distributions shall be returned to
Core-Mark Newco, the PCT or the RCT and shall remain in the possession of
Core-Mark Newco, the PCT or the RCT 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, the PCT, or the
RCT, as applicable, 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 PCT
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, the PCT, or the RCT, 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, the PCT, the RCT, or the appropriate Old Notes Trustee 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 all Claims except Old Note Claim maintained by the Debtors or their
agents, shall be closed, and there shall be no further changes in the record
Holders of any such Claims. Moreover, the Reorganized Debtors shall have no
obligation to recognize the transfer of any such Claims 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. There shall be no Distribution Record Date for
Old Note Claims.
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, the PCT, and the RCT, as
applicable, shall 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, the PCT, and the RCT, 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
36
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, the PCT or the RCT, as applicable, in accordance
with the Revised Term Sheet, 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 the PCT or the
RCT 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, the Reorganized Debtors the PCT
or the RCT of any such Claims, rights and Causes of Action that the Debtors, the
Reorganized Debtors the PCT or the RCT 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.L. 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.
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
37
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, and in accordance with the Revised Term Sheet, the PCT
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 as such actions relate to all Claims not
falling under the authority of the RCT Representative pursuant to the Revised
Term Sheet. The RCT Representative shall have exclusive authority to file
objections, settle, compromise, withdraw or litigate to judgment objections to
Claims on behalf of the Debtors and Reorganized Debtors as such actions relate
to Claims that fall under the RCT Representative's authority pursuant to the
Revised Term Sheet. From and after the Effective Date, the PCT Representative
may settle or compromise any Disputed Claim allocated to the PCT on behalf of
the Reorganized Debtors and the RCT Representative may settle or compromise any
Disputed Claim allocated to the RCT on behalf of the Reorganized Debtors without
approval of the Bankruptcy Court.
2. Estimation of Claims
Core-Mark Newco, the PCT Representative, and the RCT 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, the PCT, or the RCT, 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, the PCT Representative, and
the RCT 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.
3. Payments and Distributions on Disputed Claims
Notwithstanding any provision herein to the contrary, except as otherwise
agreed by Core-Mark Newco, the PCT, or the RCT, as applicable, Core-Mark Newco,
the PCT, and the RCT, as applicable, in their sole discretion
38
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, the PCT, or the RCT, 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, the PCT, and the RCT, 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, the PCT, and the RCT, 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.10 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.
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
39
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.
E. Settlement of Claims and Controversies.
The Plan incorporates a proposed compromise and settlement among the
Debtors, the Committee and the PBGC which is an integral part of the Plan.
Pursuant to Bankruptcy Rule 9019 and in consideration for the distributions and
other benefits provided under the Plan, the provisions of this Plan shall
constitute a good faith compromise and settlement of claims or controversies
relating to the PBGC's Claims and any distribution to be made on account of such
Claims as an Allowed Claim. The entry of the Confirmation Order shall constitute
the Bankruptcy Court's approval of the compromise or settlement of all such
claims or controversies and the Bankruptcy Court's finding that such compromise
or settlement is in the best interests of the Debtors and their respective
estates and holders of Claims and is fair, equitable and reasonable. The
provisions of the Plan regarding distributions with respect thereto apply to all
of the PBGC's contractual, legal and other rights. The treatment of Claims in
Class 6 reflects this compromise and settlement, which, upon the Effective Date,
shall be binding upon the Debtors, all Claim Holders and all Entities receiving
any payments or other distributions under the Plan.
As more fully described in the Disclosure Statement, the primary terms of
the compromise and settlement are set forth below:
- The PBGC's proof of claim number 18276 for alleged missed
minimum funding contributions to the Fleming Plan shall be
reduced to and reclassified as (i) an Allowed Administrative
Claim in the amount of $2,000,000 and (ii) an Allowed Other
Priority Non-Tax Claim under section 507(a)(4) of the
Bankruptcy Code in an amount up to $750,000 (subject to the
reductions set forth in section 507(a)(4) of the Bankruptcy
Code).
- The PBGC's proof of claim number 18275 shall be reduced to and
treated as an Allowed General Unsecured Claim under the Plan
in the amount of $200,000,000.
- The remaining PBGC Claims shall be deemed withdrawn, with
prejudice, upon the Effective Date.
- The PBGC further agrees it shall vote for and otherwise
support the Plan and shall not object to the Plan.
40
- For purposes of voting on the Plan, PBGC's claim number 18275
will be an Allowed General Unsecured Claim in the reduced
amount of $200,000,000.
- All the Debtors' objections to the PBGC Claims shall be deemed
withdrawn, with prejudice, upon the Plan Effective Date.
- The Debtors agree not to file a motion with the Bankruptcy
Court seeking to terminate the Remaining Pension Plans, and on
the Plan Effective Date, the sponsoring Debtor, as applicable,
shall withdraw the distress termination applications to
terminate the Remaining Pension Plans.
- The release, discharge, injunction, and exculpation provisions
of the Plan shall not apply to the PBGC in respect of the
Remaining Pension Plans. As to the Fleming Companies, Inc.
Pension Plan, the release, discharge, injunction and
exculpation provisions of the Plan shall only apply to the
Debtors, the Reorganized Debtors, any entities created through
the merger of the Reorganized Debtors, and any member of the
Reorganized Debtors' "controlled group", as such term is
defined by 29 U.S.C. Section 1301(14)(a).
F. Special Provisions Regarding Reclamation Claims
1. TLV Reclamation Claims
(a) Allowance of TLV Reclamation Claims shall be determined solely
by the RCT and the affected Creditor without standing of any other party
to object (unless resolution is referred to the PCT on such terms as the
RCT and the PCT shall determine).
(b) Reconciliation of the TLV Reclamation Claims shall consist of
application of all postpetition vendor deductions, over-wires and
preferences and pre-petition setoffs to the extent that General Unsecured
Claims have first been fully setoff through application of pre-petition
deductions. The reconciliation shall recognize the effect of the Trade
Credit Program and the critical vendor program.
(c) Allowed TLV Reclamation Claims shall earn interest which shall
begin to accrue sixty (60) days after the Effective Date at the Wall
Street Journal listed prime rate.
(d) Allowed TLV Reclamation Claims shall be paid (i) first from the
RCT; (ii) second from the PCT and (iii) third from the Core-Mark TLV
Guaranty.
2. Non-TLV Reclamation Claims
(a) Allowance of Non-TLV Reclamation Claims shall be determined
solely by RCT and the affected Creditor without standing of any other
party to object (unless resolution is referred to the PCT on such terms as
the PCT and RCT shall determine).
(b) In reconciling the Non-TLV Reclamation Claims, all post-petition
vendor deductions, over-wires, preferences, and pre-petition setoffs to
the extent that General Unsecured Claims have been fully set off, shall be
applied. In addition, the total amount of Allowed Non TLV-Reclamation
Claims will first be reduced by a discount of $13 million to calculate the
net Allowed amount of the Non-TLV Reclamation Claim.
(c) Allowed Non-TLV Reclamation Claims shall be paid only after
satisfaction of all Allowed TLV Reclamation Claims (i) first from the RCT,
(ii) second from the PCT and (iii) third from the Core-Mark Non-TLV
Guaranty. The timing of such distribution shall be in the discretion of
the RCT.
3. General Unsecured Claims of Reclamation Creditors
(a) Allowance of General Unsecured Claims held by Reclamation
Creditors shall be determined by the RCT pursuant to procedures
established by the Bankruptcy Court. Such procedures shall include a
41
mechanism for approval by the PCT Advisory Board of settlements which
represent an increase of at least 20% from the general unsecured claims
scheduled by the Debtors or the proofs of Claim, whichever is less.
(b) The prosecution of any objections with respect to the General
Unsecured Claims held by Reclamation Creditors and the reconciliation of
such General Unsecured Claims shall be conducted by the RCT at its expense
and will be subject to setoff against any pre-petition Claims of the
Debtors against the Reclamation Creditors.
(c) Allowed General Unsecured Claims of Reclamation Creditors shall
be entitled to the same treatment under this Plan as the Allowed Class 6
General Unsecured Claims of non-Reclamation Creditors and shall receive
distributions pursuant to the Plan when Allowed.
4. Expected Reconciliation Rules of RCT
The advisory board of the RCT is expected to approve a series of rules
which can be applied in the reconciliation of Reclamation Claims. These rules
shall be applied on a consensual basis by the RCT Representative with the
Reclamation Creditors. These rules shall not be mandatory. In the event a
consensual reconciliation is not achieved by the RCT Representative and a
Reclamation Creditor, there may be alternative dispute resolution procedures
made available on terms adopted by the advisory board of the RCT. In any event,
each Reclamation Creditor reserves its rights to seek allowance of its
Reclamation Claim in accordance with the Bankruptcy Code and Bankruptcy Rules
process as qualified by the Plan.
5. Surplus Contingency from RCT
In the event the RCT has or develops proceeds for distribution after
satisfaction of all Reclamation Claims, such additional proceeds shall be
applied by the RCT in an order of priority as follows:
(a) To Core-Mark Newco for any advances under the TLV Guaranty or
Non-TLV Guaranty;
(b) To the Prepetition Non-TLV Reclamation Claim Reduction;
(c) To Core-Mark Newco for any advances under the Administrative
Claim Guaranty;
(d) Any amount of "ad hoc committee" professional fees which have
not been reimbursed by allowance of an Administrative Claim; and
(e) To the PCT.
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:
42
(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;
(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 PCT and the RCT shall be established and all actions, documents
and agreements necessary to implement the PCT and the RCT 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
43
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.
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, THE PCT REPRESENTATIVE AND THE RCT REPRESENTATIVE 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
AND/OR THE OCRC WITH RESPECT TO DEBTORS' ORDINARY COURSE BUSINESS DEALINGS WITH
SUCH COMMITTEE AND/OR OCRC MEMBERS.
C. RELEASES BY HOLDERS OF CLAIMS
1. 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.
2. 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 D&O
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
44
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; PROVIDED, HOWEVER, THAT THE
FOREGOING RELEASE SHALL AFFECT ONLY THOSE CLAIMS, OBLIGATIONS, RIGHTS, SUITS,
DAMAGES, REMEDIES AND LIABILITIES IN EXCESS OF THE AMOUNT OF THE DEBTORS'
DIRECTORS AND OFFICERS INSURANCE PROCEEDS, NET OF ALL DEFENSE COSTS AND FEES,
ACTUALLY AVAILABLE IN CASH SO THE D&O RELEASEES DO NOT HAVE TO BEAR ANY COST TO
PAY SUCH CLAIMS; AND PROVIDED FURTHER THAT THE PRECEDING LIMITATION ON RELEASES
GIVEN TO DIRECTORS AND OFFICERS SHALL NOT APPLY TO THE CURRENT DIRECTORS AND
OFFICERS OF THE DEBTORS WHO WILL SERVE AS DIRECTORS AND/OR OFFICERS OF CORE-MARK
NEWCO AFTER THE EFFECTIVE DATE.
D. INDEMNIFICATION
ALL D&O RELEASEES AND THEIR RESPECTIVE AFFILIATES, AGENTS AND
PROFESSIONALS SHALL BE INDEMNIFIED FOR 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 THROUGH THE DEBTORS' DIRECTORS AND OFFICERS
INSURANCE POLICIES, UP TO A COLLECTIVE MAXIMUM EQUAL TO THE AMOUNT OF THE
DEBTORS' DIRECTORS AND OFFICERS INSURANCE PROCEEDS, NET OF ALL DEFENSE COST AND
FEES, ACTUALLY PAYABLE IN CASH, TO PAY CLAIMS ASSERTED AGAINST THE D&O RELEASEES
EXCEPT FOR CASES OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; AND PROVIDED,
HOWEVER, THAT THE PRECEDING LIMITATION ON INDEMNIFICATION OF DIRECTORS AND
OFFICERS SHALL NOT APPLY TO CURRENT DIRECTORS AND OFFICERS OF THE DEBTORS WHO
WILL SERVE AS DIRECTORS AND/OR OFFICERS OF CORE-MARK NEWCO AFTER THE EFFECTIVE
DATE. 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
PRE-PETITION AGENT, THE OLD NOTES TRUSTEES, THE COMMITTEE, THE PCT, THE POST
CONFIRMATION ADVISORY BOARD, THE PCT REPRESENTATIVE, THE RCT, THE RCT ADVISORY
BOARD AND THE RCT REPRESENTATIVE, 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
45
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; AND (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.
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 AND SHALL BE BINDING ON THE PBGC ON THE TERMS
IDENTIFIED IN SECTION X.E.
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;
46
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.
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 and the OCRC 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 and OCRC'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, and except for a
modification that would adversely impact Reclamation Creditors in a manner
inconsistent with the Revised Term Sheet without the consent of the OCRC, (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 PCT 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.
47
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 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, the Committee or the OCRC shall be
sent by first class U.S. mail, postage prepaid to:
48
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
And
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
And
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
And
Piper Rudnick LLP
6225 Smith Avenue
Baltimore, MD 21209-3600
Attn: Mark J. Friedman
49
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 for Official Committee of
Unsecured Creditors
50