Exhibit 2.1
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
) Case No. 03-10945 (MFW)
FLEMING COMPANIES, INC., et al.,(1) ) (Jointly Administered)
)
Debtors. ) Related to Docket No. 8268
ORDER CONFIRMING THE THIRD AMENDED AND REVISED
JOINT PLAN OF REORGANIZATION OF FLEMING COMPANIES, INC.
AND ITS FILING SUBSIDIARIES UNDER
CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
The above-captioned debtors and debtors-in-possession (collectively,
the "Debtors")(2) having filed voluntary petitions for relief under Chapter 11
of Title 11 of the United States Code (the "Bankruptcy Code") on April 1, 2003
(the "Petition Date"); and
The Debtors having filed the Third Amended Disclosure Statement in
Support of the Debtors' and Official Committee of Unsecured Creditors' Third
Amended and Revised Joint Plan of Reorganization of Fleming Companies, Inc. and
Its Filing Subsidiaries under Chapter 11 of the United States Bankruptcy Code on
May 11, 2004, which was approved by the Court,
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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 Retail
Holdings, Inc., f/ka/ Rainbow Foods, Inc.; 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.; Retail Investments, Inc.;
Retail Supermarkets, Inc.; RFS Marketing Services, Inc.; and Richmar
Foods, Inc.
(2) Capitalized terms not defined herein shall have those meanings ascribed to
them in the Plan (as defined below). The rules of interpretation set forth
in Article I.A of the Plan shall apply to this Order (the "Confirmation
Order"). If there is any direct conflict between the terms of the Plan,
the Plan Supplement and the terms of this Confirmation Order, the terms of
this Confirmation Order shall control.
subject to certain modifications, as containing "adequate information" as
defined by section 1125 of the Bankruptcy Code pursuant to that Order dated May
25, 2004. [D.I. 8269];
The Debtors having filed on May 28, 2004, the Third Amended and
Revised Disclosure Statement in Support of the Debtors' and Official Committee
of Unsecured Creditors' Third Amended and Revised Joint Plan of Reorganization
of Fleming Companies, Inc. and Its Filing Subsidiaries under Chapter 11 of the
United States Bankruptcy Code, which included all modifications ordered by the
Court at the May 25, 2004 hearing (as so amended, the "Disclosure Statement");
and
The Debtors having filed on May 28, 2004, the Debtors' and Official
Committee of Unsecured Creditors' Third Amended and Revised Joint Plan of
Reorganization of Fleming Companies, Inc. and Its Filing Subsidiaries under
Chapter 11 of the United States Bankruptcy Code, reflecting those changes
ordered by the Court at the May 25, 2004 hearing (as so amended and as further
amended hereby, and including the Plan Supplement, the "Plan"); and
The Debtors having filed on June 15, 2004, pursuant to the Plan, the
Management Incentive Plan term sheet, the Assumption Schedule and the Benefits
Schedule; and
The Debtors having filed on July 16, 2004, pursuant to the Plan, the
Plan Supplement; and
This Court having set July 26, 2004 at 9:30 a.m. Eastern Time as the
date and time for a hearing pursuant to Rules 3017 and 3018 of the Federal Rules
of Bankruptcy Procedure (the "Bankruptcy Rules") and sections 1126, 1128 and
1129 of the Bankruptcy Code to consider the Confirmation of the Plan (the
"Confirmation Hearing"); and
This Court having reviewed the Plan and the Disclosure Statement;
and
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This Court having heard the statements of counsel in respect of the
Confirmation; and
This Court having considered all testimony, documents and affidavits
regarding the Confirmation; and
After due deliberation thereon, discussions made on the record at
the Confirmation Hearing and good cause appearing therefor, this Court hereby
makes and issues the following Findings of Fact, Conclusions of Law and
Orders:(3)
I
FINDINGS OF FACT AND CONCLUSIONS OF LAW
JURISDICTION AND VENUE
a) On the Petition Date, the Debtors commenced the Chapter 11 Cases
by filing voluntary petitions for relief under Chapter 11 of the Bankruptcy
Code. The Debtors were and are qualified to be debtors under section 109 of the
Bankruptcy Code. Venue in the District of Delaware was proper as of the Petition
Date and continues to be proper. Confirmation of the Plan is a core proceeding
under 28 U.S.C. Section 157(b)(2). This Court has subject matter jurisdiction
over this matter pursuant to 28 U.S.C. Section 1334; and the Court has exclusive
jurisdiction to determine whether the Plan complies with the applicable
provisions of the Bankruptcy Code and should be confirmed.
MODIFICATIONS TO THE PLAN
b) The Plan, as modified and confirmed hereby, does not adversely
change the treatment of the Claim of any creditor or interest holder of a Claim
or Equity Interest as
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(3) This Confirmation Order constitutes this Court's findings of fact and
conclusions of law under Fed. R. Civ. P. 52, as made applicable by
Bankruptcy Rules 7052 and 9014. Any and all findings of fact shall
constitute findings of fact even if they are stated as conclusions of law,
and any and all conclusions of law shall constitute conclusions of law
even if they are stated as findings of fact.
3
compared to the treatment proposed in the version of the plan attached to the
Disclosure Statement. Therefore, under Bankruptcy Rule 3019, creditors who voted
to accept that version of the plan are deemed to accept the Plan. A copy of the
Plan, with the final revisions as outlined herein, is attached hereto as Exhibit
A.
SOLICITATION ORDER
c) On May 25, 2004, the Court entered the Order (A) Scheduling a
Hearing to Confirm Third Amended and Revised Joint Plan of Reorganization; (B)
Establishing a Voting Deadline and Deadline for Objecting to the Plan; (C)
Approving Form of Ballots and Master Ballots; and (D) Approving Solicitation
Procedures and Form and Manner of Notices (the "Solicitation Order"). [D.I.
8224]
PUBLICATION OF CONFIRMATION HEARING NOTICE
d) As evidenced in the Notice of Filing Affidavits of Publication
Regarding Notice of Entry of Order (I) Setting Hearing to Confirm Plan of
Reorganization and (II) Related Important Dates filed with the Court, the
Debtors published the Confirmation Hearing Notice in USA Today, The Wall Street
Journal, The New York Times, The Globe and Mail, USA Today - Global Edition and
The International Herald Tribune between June 11, 2004 through June 15, 2004.
[D.I. 8613]
TRANSMITTAL AND MAILING OF MATERIALS; NOTICE
e) As evidenced by the Declaration of Solicitation Agent regarding
solicitation, due, adequate and sufficient notice of the Disclosure Statement,
the Plan and of the Confirmation Hearing, along with all deadlines for voting on
or objecting to the Plan has been given to (a) all known Holders of Claims and
Equity Interests; (b) all parties that requested notice in accordance with
Bankruptcy Rule 2002; (c) all parties to unexpired leases and executory
contracts with any of the Debtors, and (d) all taxing authorities listed on the
Schedules
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or in the Debtors' claims database, in accordance with the procedures set forth
in the Solicitation Order, in substantial compliance with Bankruptcy Rules
2002(b), 3017 and 3020(b) and the Solicitation Order, and such transmittal, and
service were adequate and sufficient. Adequate and sufficient notice of the
Confirmation Hearing, as continued from time-to-time, and other bar dates and
hearings described in the Solicitation Order was given in compliance with the
Bankruptcy Rules and Solicitation Order, and no other or further notice is or
shall be required.
SOLICITATION
f) Votes for acceptance and rejection of the Plan were solicited in
good faith and in compliance with sections 1125 and 1126 of the Bankruptcy Code,
Bankruptcy Rules 3017 and 3018, the Disclosure Statement, the Solicitation
Order, all other applicable provisions of the Bankruptcy Code and all other
applicable rules, laws and regulations.
g) The Debtors and the Committee (collectively, the
"Co-Proponents"), the OCRC, and their respective members, ex officio members,
directors, officers, agents, affiliates, representatives, attorneys and
advisors, as applicable, have solicited votes on the Plan in good faith and in
compliance with the applicable provisions of the Bankruptcy Code and the
Solicitation Order and are entitled to the protections afforded by section
1125(e) of the Bankruptcy Code and the exculpation provisions set forth in
Article XII of the Plan.
VOTING REPORT
h) On July 9, 2004, the Debtors filed with the Court a report
certifying the method and results of the Ballot tabulation for each of the
voting Classes to accept or reject the Plan (the "Voting Report"). [D.I. 8756]
i) All procedures used to distribute solicitation materials to the
applicable Holders of Claims and Equity Interests and to tabulate the Ballots
were fair and conducted in accordance with the Solicitation Order, the
Bankruptcy Code, the Bankruptcy Rules, the Local
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Rules of the Bankruptcy Court for the District of Delaware, and all other
applicable rules, laws and regulations.
j) As evidenced by the Voting Report, pursuant to sections 1124 and
1126 of the Bankruptcy Code, all Impaired Classes entitled to vote on the Plan
have accepted the Plan.
JUDICIAL NOTICE
k) The Court takes judicial notice of the docket of the Chapter 11
Cases maintained by the Clerk of the Court and/or its duly appointed agent,
including, without limitation, all pleadings and other documents referenced in
this Order and on file with the Court, all orders entered, and all evidence
(that was not subsequently withdrawn) and arguments made, proffered or adduced
at the hearings held before the Court during the pendency of the Chapter 11
Cases (including the Confirmation Hearing). Resolutions of objections to
Confirmation explained on the record at the Confirmation Hearing are hereby
incorporated by reference and all items listed on Exhibit E (Confirmation Trial
Exhibits) hereto are hereby admitted into evidence.
BURDEN OF PROOF
l) The Co-Proponents have (a) met their burden of proving the
elements of section 1129(a) and 1129(b) of the Bankruptcy Code by a
preponderance of the evidence, which is the applicable evidentiary standard in
this Court and (b) satisfied the elements of section 1129(a) and (b) of the
Bankruptcy Code by clear and convincing evidence.
COMPLIANCE WITH THE REQUIREMENTS OF SECTION 1129 OF THE BANKRUPTCY CODE
SECTION 1129(a)(1) - COMPLIANCE OF THE PLAN WITH APPLICABLE
PROVISIONS OF THE BANKRUPTCY CODE
m) The Plan complies with all applicable provisions of the
Bankruptcy Code as required by section 1129(a)(1) of the Bankruptcy Code,
including, without limitation, sections 1122 and 1123. Pursuant to sections
1122(a) and 1123(a)(1) of the Bankruptcy Code,
6
Article III of the Plan designates Classes of Claims and Equity Interests, other
than Administrative Claims and Priority Tax Claims.(4) As required by section
1122(a) of the Bankruptcy Code, each Class of Claims and Equity Interests
contains only Claims or Equity Interests that are substantially similar to the
other Claims or Equity Interests within that Class.
n) Pursuant to section 1123(a)(2) and (3) of the Bankruptcy Code,
Article III of the Plan specifies all Claims that are not Impaired and specifies
the treatment of all Claims and Equity Interests that are Impaired. Pursuant to
section 1123(a)(4) of the Bankruptcy Code, Article III of the Plan also provides
the same treatment for each Claim or Equity Interest within a particular Class.
o) Pursuant to section 1123(a)(5) of the Bankruptcy Code, the Plan
provides adequate and proper means for the Plan's implementation. The Debtors
will have, immediately upon the Effective Date of the Plan, sufficient Cash to
make all payments required to be made on the Effective Date pursuant to the
terms of the Plan. Moreover, Article V and various other provisions of the Plan
specifically provide adequate means for the Plan's implementation, including,
without limitation: (a) the substantive consolidation of the Debtors; (b) the
continuation of the corporate existence of certain Debtors and the vesting of
assets in the Reorganized Debtors, the PCT, the RCT and Core-Mark Newco, as
applicable; (c) the cancellation of the Old Notes, the Old Stock, and other
Equity Interests; (d) the authorization and issuance or distribution of new
securities and the execution of related documents; (e) the necessary information
with respect to the corporate governance, directors, officers, PCT and RCT
Representatives and Advisory Board members; and (f) authorization for all
necessary
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(4) Pursuant to section 1123(a)(1) of the Bankruptcy Code, Administrative
Claims and Priority Tax Claims are not required to be designated.
7
corporate action of Core-Mark Newco and the Reorganized Debtors as well as the
formation of the PCT and the RCT.
SECTION 1129(a)(2) - COMPLIANCE WITH APPLICABLE PROVISIONS OF THE
BANKRUPTCY CODE
p) The Co-Proponents have complied with all applicable provisions of
the Bankruptcy Code as required by section 1129(a)(2) of the Bankruptcy Code,
including, without limitation, sections 1125 and 1126 and Bankruptcy Rules 3017,
3018 and 3019. In particular, the Debtors are proper debtors under section 109
of the Bankruptcy Code, and the Co-Proponents are proper proponents of the Plan
under section 1121(a) of the Bankruptcy Code. Furthermore, the solicitation of
acceptances or rejections of the Plan was (i) pursuant to the Solicitation
Order; (ii) in compliance with all applicable laws, rules and regulations
governing the adequacy of disclosure in connection with such solicitation; and
(iii) solicited after disclosure to Holders of Claims or Interests of "adequate
information" as defined in section 1125(a) of the Bankruptcy Code. Accordingly,
the Co-Proponents, the OCRC and their respective members and ex officio members,
directors, officers, employees, agents, affiliates and Professionals, as
applicable, have acted in "good faith" within the meaning of section 1125(e) of
the Bankruptcy Code.
SECTION 1129(a)(3) - PROPOSAL OF PLAN IN GOOD FAITH
q) The Co-Proponents have proposed the Plan in good faith and not by
any means forbidden by law. In determining that the Plan has been proposed in
good faith, the Court has examined the totality of the circumstances surrounding
the filing of the Chapter 11 Cases, the Plan itself, and the process leading to
its formulation. See Bankruptcy Rule 3020(b). The Chapter 11 Cases were filed,
and the Plan was proposed, with the legitimate purpose of allowing
8
the Debtors to reorganize and emerge from bankruptcy with a capital structure
that will allow them to satisfy their obligations with sufficient liquidity and
capital resources.
SECTION 1129(a)(4) - BANKRUPTCY COURT APPROVAL OF CERTAIN PAYMENTS
AS REASONABLE
r) Pursuant to section 1129(a)(4) of the Bankruptcy Code, the
payments to be made by the Reorganized Debtors for services or for costs in
connection with the Chapter 11 Cases or the Plan, including the fees incurred by
the Old Notes Trustees to undertake their responsibilities under the Plan and
the fees and expenses payable pursuant to the Exit Financing Facility and
Tranche B Loan filed as part of the Plan Supplement, are approved.
s) In addition, fees and expenses incurred by Professionals through
the Confirmation Date shall be payable according to a Court Order.
SECTION 1129(a)(5) - DISCLOSURE OF IDENTITY OF PROPOSED MANAGEMENT,
COMPENSATION OF INSIDERS AND CONSISTENCY OF MANAGEMENT PROPOSALS
WITH THE INTERESTS OF CREDITORS AND PUBLIC POLICY
t) Pursuant to section 1129(a)(5) of the Bankruptcy Code, the
Debtors have disclosed the identity of the proposed directors and officers of
the Reorganized Debtors and Core-Mark Newco, as well as the PCT and RCT
Representatives and Advisory Board members following Confirmation of the Plan,
and the identity and nature of compensation of insiders who will be employed or
retained by the Reorganized Debtors or Core-Mark Newco.
SECTION 1129(a)(6) - APPROVAL OF RATE CHANGES
u) The Debtors' current businesses do not involve the establishment
of rates over which any regulatory commission has or will have jurisdiction
after Confirmation. Section 1129(a)(6) of the Bankruptcy Code is thus not
applicable to these Chapter 11 Cases.
9
SECTION 1129(a)(7) - BEST INTERESTS OF CREDITORS AND EQUITY INTEREST
HOLDERS
v) The liquidation analysis annexed to the Disclosure Statement as
Exhibit 4, and the other evidence related thereto that was proffered or adduced
at or prior to, or in affidavits in connection with, the Confirmation Hearing,
is reasonable. The methodology used and assumptions made in the liquidation
analysis, as supplemented by the evidence proffered or adduced at or prior to,
or in affidavits filed in connection with, the Confirmation Hearing, are
reasonable.
w) With respect to each Impaired Class, each Holder of an Allowed
Claim or Equity Interest in such Class has accepted the Plan or will receive
under the Plan on account of such Claim or Equity Interest property of a value,
as of the Effective Date, that is not less than the amount such Holder would
receive if the Debtors were liquidated on the Effective Date under Chapter 7 of
the Bankruptcy Code.
SECTION 1129(a)(8) - ACCEPTANCE OF THE PLAN BY EACH IMPAIRED CLASS
x) As indicated in Articles III and IV of the Plan, the following
Classes are Unimpaired and conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code:
DESCRIPTION OF CLASS CLASS DESIGNATION
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Other Priority Non-Tax Claims 1(A)
Pre-Petition Lenders' Secured Claims 2
Other Secured Claims that are not Class 1(B) Claims 3(A)
PACA/PASA Claims 4
y) As indicated in the Voting Report, every Impaired Class that was
entitled to vote has voted to accept the Plan. The following Impaired Classes
voted in favor of the Plan:
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DESCRIPTION OF CLASS CLASS DESIGNATION
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Priority Property Tax Claims 1(B)
TLV Reclamation Claims 3(B)
DSD Trust Claims 3(C)
Non-TLV Reclamation Claims 5
General Unsecured Claims that are not Convenience
Claims and Senior Subordinated Note Claims 6(A)
Senior Subordinated Note Claims 6(B)
Convenience Claims 7
z) Because the Plan provides that the Classes listed below will not
receive any distribution or retain any property under the Plan, they are deemed
to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code:
CLASS OF CLAIMS CLASS DESIGNATION
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Equity Interests 8
Intercompany Claims 9
Other Securities Claims and Interests 10
SECTION 1129(a)(9) - TREATMENT OF CLAIMS ENTITLED TO PRIORITY
PURSUANT TO SECTION 507(a) OF THE BANKRUPTCY CODE
aa) The treatment of Administrative, Priority Tax, and Other
Priority Claims under Article II of the Plan satisfies the requirements of
section 1129(a)(9) of the Bankruptcy Code.
SECTION 1129(a)(10) - ACCEPTANCE BY AT LEAST ONE IMPAIRED CLASS
bb) As set forth in the Voting Report, each Impaired Class has voted
to accept the Plan. Accordingly, section 1129(a)(10) of the Bankruptcy Code is
satisfied.
SECTION 1129(a)(11) - FEASIBILITY OF THE PLAN
cc) The Plan satisfies section 1129(a)(11) of the Bankruptcy Code.
Based upon the evidence proffered or adduced at, or prior to, or in affidavits
or declarations filed in connection with, the Confirmation Hearing, the Plan is
feasible and Confirmation of the Plan is not likely to be followed by the
liquidation, or the need for further financial reorganization, of the Debtors
the Reorganized Debtors or any other successor to the Debtors under the Plan.
11
Furthermore, the Reorganized Debtors will have adequate capital to meet their
ongoing obligations.
SECTION 1129(a)(12) - PAYMENT OF BANKRUPTCY FEES
dd) In accordance with section 1129(a)(12) of the Bankruptcy Code,
Article XIV of the Plan provides for the payment of all fees payable under 28
U.S.C. Section 1930(a). The PCT has adequate means to pay all such fees.
SECTION 1129(a)(13) - RETIREE BENEFITS
ee) Article VIII.E of the Plan provides that none of the vested
retiree benefits have been terminated or modified prior to the Effective Date
and that all retiree benefit plans will be assumed by either the Reorganized
Debtors or the PCT as of the Effective Date. Further, in accordance with section
1129(a)(13) of the Bankruptcy Code, all retiree benefits (as that term is
described in section 1114 of the Bankruptcy Code) that were incurred prior to
the Effective Date have either been paid by the Debtors or will be paid by the
Reorganized Debtors or the PCT.
SECTION 1129(b) - CONFIRMATION OF PLAN OVER NONACCEPTANCE OF
IMPAIRED CLASS
ff) Classes 8 (Equity Interests), 9 (Intercompany Claims), and 10
(Other Securities Claims and Interests) will receive no distribution and retain
no property under the Plan and are conclusively presumed to have rejected the
Plan pursuant to section 1126(g) of the Bankruptcy Code (the "Deemed Rejecting
Classes"). The Plan, however, satisfies the requirements of section 1129(b) of
the Bankruptcy Code with respect to the Deemed Rejecting Classes. To determine
whether a plan is "fair and equitable" with respect to a class of unsecured
claims or interests, sections 1129(b)(2)(B)(ii) and 1129(b)(2)(C)(ii) of the
Bankruptcy Code, respectively, require that the holder of any unsecured claim or
interest that is junior to the unsecured claims or interests in such class will
not receive or retain any property under the plan
12
on account of such junior unsecured claim or interest." There are no unsecured
claims or interests junior to any of the Deemed Rejecting Classes that will
receive any distribution under the Plan. Therefore the Plan satisfies the
requirements of section 1129(b).
PRINCIPAL PURPOSE OF THE PLAN IS NOT AVOIDANCE OF TAXES
gg) The principal purpose of the Plan is not the avoidance of taxes
or the avoidance of the application of Section 5 of the Securities Act of 1933
(15 U.S.C. Section 77e), and no governmental entity has filed any objection
asserting such avoidance.
OBJECTIONS TO CONFIRMATION OF THE PLAN
hh) All objections to Confirmation have been withdrawn, settled, or
resolved or are hereby overruled by the Court as outlined herein.
ISSUANCE AND DISTRIBUTION OF THE NEW SECURITIES
ii) The Co-Proponents and their respective members, ex officio
members, affiliates, agents, directors, officers, employees, advisors, and
attorneys, as applicable, have participated in good faith and in compliance with
the applicable provisions of the Bankruptcy Code with regard to the issuance and
distribution of the New Common Stock under the Plan, and, therefore, are not
liable, on account of such issuance or distribution, for violation of any
applicable law, rule, or regulation governing such issuance or distribution made
pursuant to the Plan and are entitled to the protections afforded by section
1125(e) of the Bankruptcy Code and the exculpation provisions set forth in
Article XII of the Plan.
jj) The New Common Stock, when issued and distributed as provided in
the Plan, will be duly authorized, validly issued and, if applicable, fully paid
and nonassessable. The issuance of the New Common Stock is in exchange for
Claims against the Debtors, or principally in such exchange and partly for cash
or property, within the meaning of section 1145(a)(1) of the Bankruptcy Code.
Accordingly, under section 1145 of the Bankruptcy Code, to the extent that
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the New Common Stock constitutes "securities" (a) the issuance and distribution
of such stock is exempt from section 5 of the Securities Act of 1933, as amended
(the "Securities Act"), and any State or local law requiring registration for
the offer or sale of securities, and (b) the New Common Stock will be freely
tradeable by the recipients thereof, subject to the provisions of section
1145(b)(1) of the Bankruptcy Code relating to the definition of an "underwriter"
in section 2(a)(11) of the Securities Act, and compliance with rules and
regulations of the Securities and Exchange Commission (the "SEC"), if any,
applicable at the time of any future transfer of the New Common Stock.
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
kk) On June 15, 2004, the Debtors filed the Assumption Schedule and
served on all counterparties to contracts and leases that the Reorganized
Debtors are assuming pursuant to the Plan a notice of assumption (each a
"Notice"), which included a proposed cure amount, if any, for each such contract
and lease. The Assumption Schedule and Notice gave such counterparties until
July 2, 2004 to object to both the assumption and the proposed cure amount. All
filed objections were subsequently withdrawn, settled, or resolved or are
overruled as provided herein. A revised version of the Assumption Schedule is
attached as Exhibit B.
RELEASES AND DISCHARGES
ll) The releases and discharges of Claims and Causes of Action
described in Article XII of the Plan and in this Order, including releases by
the Debtors and by those Holders of Claims who affirmatively voted to accept the
Plan, constitute good faith compromises and settlements of the matters covered
thereby and are consensual. Such compromises and settlements are made in
exchange for consideration, are in the best interest of all parties in interest,
are fair, equitable, reasonable, and constitute integral elements of the
resolution of the Chapter 11 Cases in accordance with the Plan. Each of the
discharge, release, indemnification
14
and exculpation provisions set forth in the Plan and this Order (i) is within
the jurisdiction of the Court under 28 U.S.C. Sections 1334(a), 1334(B) and
1334(d); (ii) is an essential means of implementing the Plan pursuant to section
1123(a)(6) of the Bankruptcy Code; (iii) is an integral element of the
settlements incorporated into the Plan; (iv) confers material benefit on, and is
in the best interests of, the Debtors, their estates and their creditors; (v) is
important to the overall objectives of the Plan to finally resolve all Claims
among or against the parties-in-interest in the Chapter 11 Cases; and (vi) is
consistent with sections 105, 1123, 1129 and other applicable provisions of the
Bankruptcy Code.
PRESERVATION OF CAUSES OF ACTION
mm) It is in the best interests of the Debtors' Estates and the
Holders of Claims that all Causes of Action not expressly waived, relinquished,
released, compromised or settled in the Plan or any Final Order be retained by
the Debtors before the Effective Date, and by the PCT or the RCT, as applicable,
after the Effective Date, pursuant to Article VII of the Plan.
APPROVAL OF SETTLEMENTS AND COMPROMISES
nn) Pursuant to Bankruptcy Rule 9019 and any applicable State law,
and as consideration for the distributions and other benefits provided under the
Plan, all settlements and compromises of Claims, Causes of Action and objections
to Claims that are embodied in the Plan and this Order constitute good faith
compromises and settlements of such Claims, Causes of Action and objections to
Claims, which compromises and settlements are hereby approved as fair,
equitable, reasonable, and appropriate in light of the relevant facts and
circumstances underlying such compromise and settlement, and as being in the
best interests of the Debtors, their Estates and the Holders of Claims.
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SATISFACTION OF CONDITIONS TO CONFIRMATION
oo) Each of the conditions precedent to the entry of this
Confirmation Order, as set forth in Article XI.A of the Plan, has been satisfied
or waived in accordance with the Plan.
SUBSTANTIVE CONSOLIDATION
pp) The substantive consolidation of the Debtors' Estates for the
purpose of implementing the Plan, as described in Article V.A of the Plan, will
promote a more equitable distribution of the Debtors' assets under the Plan and
is appropriate under section 105 of the Bankruptcy Code.
qq) Among the factors supporting the substantive consolidation of
the Debtors' Estates are the following: (1) Fleming Companies, Inc. ("Fleming")
owned 100% of the capital stock, membership or partnership interest of the
Filing Subsidiaries; (2) the Filing Subsidiaries jointly and severally
guaranteed Fleming's notes and senior secured obligations; (3) the Debtors used
a centralized cash management system in which all funds were upstreamed or
downstreamed from Fleming; (4) the Debtors shared corporate officers and
directors; (5) the Debtors issued consolidated audits and filed consolidated
financial statements, and SEC filings; (6) the Debtors went to great lengths to
promote themselves to creditors as a single entity; (7) prompt emergence from
bankruptcy, which will not be possible absent a substantive consolidation, will
result in the maximization of value and enhanced distributions to the vast
majority of creditors; and (8) no creditor has objected to substantive
consolidation.
LIKELIHOOD OF SATISFACTION OF CONDITIONS PRECEDENT TO CONSUMMATION
rr) Each of the conditions precedent to the Effective Date, as set
forth in Article XI.B of the Plan, is reasonably likely to be satisfied.
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RETENTION OF JURISDICTION
ss) The Court may properly retain jurisdiction over the matters set
forth in Article XIII of the Plan.
BASED ON THE FOREGOING, IT IS HEREBY ORDERED:
II
ORDER
CONFIRMATION OF THE PLAN
1. The Plan, and each of its provisions are confirmed in each and
every respect pursuant to section 1129 of the Bankruptcy Code. The terms of the
Plan, any exhibits thereto, the Assumption Schedule and the Benefits Schedule
are incorporated by reference into, and are an integral part of, this
Confirmation Order. The terms of the Plan, all exhibits thereto, and all other
relevant and necessary documents, shall be effective and binding as of the
Effective Date of the Plan. Notwithstanding the foregoing, if there is any
direct conflict between the terms of the Plan and the terms of this Confirmation
Order, the terms of this Confirmation Order shall control. All objections and
responses to and statements and comments regarding the Plan, to the extent not
already withdrawn, waived, or settled, and all reservations of rights included
therein, shall be, and hereby are, overruled.
PLAN MODIFICATIONS
2. All modifications or amendments to the Plan made since the
solicitation, and as set forth in Exhibit A hereto, are approved pursuant to
section 1127(a) of the Bankruptcy Code and do not require additional disclosure
or resolicitation under Bankruptcy Rule 3019.
PLAN CLASSIFICATION CONTROLLING
3. The classification of Claims and Equity Interests for purposes of
the distributions to be made under the Plan shall be governed solely by the
terms of the Plan. The
17
classifications set forth on the Ballots tendered to or returned by Holders of
Claims in connection with voting on the Plan (a) were set forth on the Ballots
solely for purposes of voting to accept or reject the Plan; (b) do not
necessarily represent, and in no event shall be deemed to modify or otherwise
affect, the actual classification of such Claims under the Plan for distribution
purposes; (c) may not be relied upon by any Holder of a Claim as representing
the actual classification of such Claim under the Plan for distribution
purposes; and (d) shall not be binding on the Debtors, the Reorganized Debtors,
the PCT or the RCT.
EFFECTS OF CONFIRMATION
EXISTING INJUNCTION AND STAYS REMAIN IN EFFECT UNTIL EFFECTIVE DATE
4. The stay imposed by section 362 of the Bankruptcy Code shall
remain in full force and effect until the Effective Date. All injunctions or
stays imposed during the Chapter 11 Cases or contained in the Plan or this
Confirmation Order shall remain in full force and effect in accordance with
their terms. Nothing herein shall bar the taking of such other actions as are
necessary to effectuate the transactions specifically contemplated by the Plan
or by this Confirmation Order.
EXECUTORY CONTACTS AND UNEXPIRED LEASES
5. The contracts or leases on the Assumption Schedule are deemed
assumed as of the Effective Date. The cure amounts set forth on the Assumption
Schedule shall be the amounts payable pursuant to section 365(b)(1)(B) of the
Bankruptcy Code and such payment, if any, shall satisfy the requirement set
forth in section 365(b)(1)(B) for cure of all defaults or adequate assurance of
prompt compensation. The counter-parties to such Executory Contracts & Unexpired
Leases as listed on Exhibit B shall not be entitled to any further or additional
compensation other than as set forth on Exhibit B for alleged defaults arising
before the
18
assumption of their contracts or leases. All requirements of section 365(b)
necessary for the Debtors to assume the contracts or leases on the Assumption
Schedule have been met.
EXEMPTION FROM REGISTRATION
6. Pursuant to section 1145 of the Bankruptcy Code, the offer,
issuance distribution and sale of the New Common Stock pursuant to the Plan and
this Confirmation Order shall be exempt from the registration requirements of
section 5 of the Securities Act and any State or local law requiring
registration prior to such offer, issuance, distribution or sale. In addition,
under section 1145 of the Bankruptcy Code, the New Common Stock will be freely
tradeable by the recipients thereof, subject to the provisions of section
1145(b)(1) of the Bankruptcy Code relating to the definition of an "underwriter"
in section 2(a)(11) of the Securities Act, and compliance with any rules and
regulations of the SEC applicable at the time of any future transfer of such
securities or instruments.
MATTERS RELATING TO IMPLEMENTATION OF THE PLAN
IMMEDIATE EFFECTIVENESS; SUCCESSORS AND ASSIGNS
7. Notwithstanding Bankruptcy Rules 3020(e), 6004(g), 6006(d) or
7062, this Confirmation Order shall be immediately effective. Upon the Effective
Date, the terms of the Plan shall be effective and enforceable and binding upon
the Debtors, the Reorganized Debtors, the PCT, the RCT, Core-Mark Newco and all
Holders of Claims or Equity Interests (irrespective of whether such Claims or
Equity Interests are Impaired under the Plan or whether the Holders of such
Claims or Equity Interests accepted or are deemed to have accepted the Plan),
all entities that are parties to or are subject to the settlements, compromises,
releases, discharges, and injunctions described in the Plan or herein, each
Person acquiring property under the Plan, and all non-Debtor parties to
executory contracts and unexpired leases with the Debtors and the respective
heirs, executors, administrators, successors or assigns, affiliates, officers,
19
directors, agents, representatives, attorneys, beneficiaries, or guardians, if
any, of any of the foregoing.
CONTINUED CORPORATE EXISTENCE; VESTING OF ASSETS
8. The Reorganized Debtors shall continue to exist after the
Effective Date as separate legal entities, 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; provided, however, that the Reorganized Debtors shall be restructured
pursuant to Article V.E of the Plan. Except as otherwise provided in the Plan,
on and after the Effective Date, all property of the Estates, and any property
acquired by, the Reorganized Debtors or Core-Mark Newco under the Plan or
otherwise shall vest in the applicable Reorganized Debtor, Core-Mark Newco, the
PCT or the RCT, as applicable, free and clear of all Claims, liens, charges, or
other encumbrances. On and after the Effective Date, the Reorganized Debtors and
Core-Mark Newco may operate their respective businesses, and the Reorganized
Debtors, Core-Mark Newco, the PCT and the RCT 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 this Confirmation Order.
CANCELLATION OF OLD NOTES, OLD STOCK AND OTHER EQUITY INTERESTS
9. On the Effective Date, except to the extent otherwise provided
herein or in the Plan, all notes, instruments, certificates, and other documents
evidencing (a) the Old Notes, (b) the Old Stock and (c) the Other Securities
Claims and Interests 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 or in the Plan, any
indenture relating to any of the foregoing, including, without limitation, the
Indentures, shall be deemed to
20
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 shall continue in effect solely for the purposes of (y) allowing the
Old Notes Trustees, or agents or servicers acting on their behalf, to make the
distributions on account of the Old Notes under the Plan and to perform such
other necessary administrative functions with respect thereto and (z) permitting
the Old Notes Trustees, agents or servicers to maintain any rights or liens they
may have for fees, costs and expenses under the relevant Indenture or other
agreement. The Claims of the Holders of Old Notes shall be Allowed as follows:
(i) claim number 11995 shall be allowed in full as a Class 6(B) unsecured claim
in the amount of $150,380,164.00; (ii) claim number 10771 shall be allowed in
full as a Class 6(B) unsecured claim in the amount of $407,673,611.00; (iii)
claim number 11994 shall be allowed in full as a Class 6(B) unsecured claim in
the amount of $270,840,556.00; and (iv) claim number 10750 shall be allowed in
full as a Class 6(A) unsecured claim in the amount of $578,419,097.22. Holders
of the Old Notes are hereby notified that the Effective Date shall be the last
date on which changes to the Old Notes' transfer register will be accepted (the
"Distribution Notification Date").
ISSUANCE OF NEW SECURITIES AND EXECUTION OF RELATED DOCUMENTS
10. On or as soon as practicable after the Effective Date, Core-Mark
Newco shall issue all securities, notes, instruments, certificates and other
documents required to be issued by Core-Mark Newco pursuant to the Plan or this
Confirmation Order, including, without limitation, the New Common Stock, which
shall be distributed as provided herein or in the Plan. Core-Mark Newco shall
execute and deliver such other agreements, documents and instruments as are
necessary to effectuate the Plan.
21
CORPORATE GOVERNANCE, DIRECTORS AND OFFICERS AND CORPORATE ACTION
AMENDED CERTIFICATE OF INCORPORATION AND BY-LAWS
11. After the Effective Date, the Reorganized Debtors 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.
FORMATION OF CORE-MARK NEWCO
12. 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. On or after the Effective Date, Core-Mark Newco and each of the
Reorganized Debtors are authorized to enter into such transactions as are
necessary or advisable to effectuate the reorganization outlined in section V.E
of the Plan.
DIRECTORS AND OFFICERS OF THE REORGANIZED DEBTORS AND CORE-MARK
NEWCO
13. The principal officers of the Reorganized Debtors on the
Effective Date will be the individuals who were the principal officers of the
Debtors immediately prior to the Effective Date. The principal officers of
Core-Mark Newco shall 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, Vice President, Treasurer and
Assistant Secretary; Gregory P. Antholzner, Vice President, Finance and Control
and Assistant Secretary; Basil P. Prokop, President, Canada Division; Tom Barry,
Vice President, National Accounts and Retail Support; Gerald Bolduc, Vice
President, Information Technology and Chief Information Officer; David W.
Dresser, Vice President, Purchasing; Thomas Small, Vice President, Operations;
Chris Walsh, Senior Vice President, Marketing and Sales,
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Marketing; Tom Perkins, Vice President, U.S. Divisions; Scott McPherson, Vice
President, U.S. Divisions; and Cyril Wan, Assistant Secretary.
14. Pursuant to section 1129(a)(5) of the Bankruptcy Code, the
initial board of directors of Core-Mark Newco shall be the following: J. Michael
Walsh (the Chief Executive Officer of Core-Mark Newco), Robert Allen (former
executive of Core-Mark International, Inc.), Harvey Tepner (Compass SRP
Associates LLP), Gary Colter (CRS Inc.), and Randolph I. Thornton. None of the
directors is an "insider" under the terms of section 101(31) of the Bankruptcy
Code, except for Mr. Walsh.
15. Each director and officer shall serve from and after the
Effective Date pursuant to the terms of Core-Mark Newco's and each of the other
Reorganized Debtors' respective certificate of incorporation and other
constituent documents.
CORPORATE ACTION
16. After the Effective Date, the adoption and filing, if necessary,
of any of the Reorganized Debtors' Restated Certificates of Incorporation and
Core-Mark Newco's Certificate of Incorporation, the approval of the Reorganized
Debtors Restated By-laws, the approval of Core-Mark Newco's 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 and in the
Plan with respect to Core-Mark Newco and each of the Reorganized Debtors shall
be authorized and approved in all respects (subject to the provisions hereof and
in the Plan). All matters provided for herein and in the Plan involving the
corporate structure of any Debtor, any Reorganized Debtor or Core-Mark Newco,
and any corporate action required by any Debtor, Reorganized Debtor or Core-Mark
Newco in connection with the Plan, shall be deemed to have occurred and shall be
in effect, without any requirement of further action by the security holders or
directors of such Debtor, Reorganized Debtor or Core-Mark Newco. On the
Effective Date,
23
the Debtors are authorized and directed to enter into the Exit Financing
Facility, the Tranche B Loan and the Management Incentive Plan and the
appropriate officers of each Reorganized Debtor and Core-Mark Newco and members
of the board of directors of each Reorganized Debtor and Core-Mark Newco 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 or Core-Mark Newco, including, but not limited to,
the Exit Financing Facility, the Tranche B Loan and the Management Incentive
Plan.
EXIT FINANCING FACILITY AND TRANCHE B LOAN
17. The Exit Financing Facility and Tranche B Loan are approved. In
addition, (a) the terms and conditions of the Exit Financing Facility loan
documents and the Tranche B Loan documents (collectively, the "Loan Documents")
are approved and ratified as being entered into in good faith, providing the
most favorable financing terms and being critical to the success and feasibility
of the Plan, (b) on or prior to the Effective Date, the Borrowers (as defined in
the Exit Financing Facility) are authorized to enter into the Exit Financing
Facility, the Tranche B Loan and the other Loan Documents and to grant liens and
security interests to the Agents thereunder (as defined in each of the Exit
Financing Facility and the Tranche B Loan) in substantially all of their assets
(except for any assets to be transferred to the PCT or the RCT pursuant to the
Plan), and such documents, liens and security interests are approved, (c) all
fees, costs and expenses paid or payable by the Borrowers in connection with or
pursuant to the commitment letter and the Exit Financing Facility and in
connection with or pursuant to the Tranche B Put Agreement and the Tranche B
Loan are ratified and approved, and such payment is authorized, and (d) the
commitment letter, the Tranche B Put Agreement and any or all other Loan
Documents signed by the Debtors shall be binding and enforceable against the
Borrowers upon and after the Effective Date as if executed and delivered by the
Borrowers notwithstanding
24
any provision in the Plan or the Confirmation Order to the contrary. The Debtors
are authorized to take any and all action necessary for the Borrowers to enter
into and finalize the Loan Documents without further court approval, provided
that a final version of the Loan Documents are filed with the Court and made
available to parties in interest.
PCT
18. On the Effective Date or as soon as practicable thereafter, the
Reorganized 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 RCT Assets and the reconciliation and payment of Claims, other than
Reclamation Claims (except that reconciliation of Class 6(A) Claims of
Reclamation Creditors, but not the payment of such Claims, shall be the
responsibility of the RCT). The initial PCT Representative shall be Robert Kors
(AEG Partners), and the initial Advisory Board of the PCT shall consist of the
following: Robert Kors (AEG Partners); Randolph I. Thornton; Harvey Tepner
(Compass SRP Associates LLP); Sandra Schirmang (Kraft Foods Inc.) and a Sankaty
Advisors representative. The Post Confirmation Trust Agreement is approved,
including, without limitation, the provisions of sections 1.14(a) and (b) and
2.5 (g) and (h) thereof.
RCT
19. On the Effective Date or as soon as practicable thereafter, the
Reorganized Debtors, the OCRC and the Committee will form the RCT 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 RCT Assets and payment of Reclamation Claims. The initial RCT
Representative shall be Bernard A. Katz of J.H. Cohn, LLC, and the Advisory
Board of the RCT shall consist of the following: John Burke, Nestle
25
USA, Inc.; Gary Grissom, S.C. Johnson & Son, Inc., Curtis Marshall, Sara Lee
Corporation; Mark Pender, General Mills, Inc.; Patrick Murtha, Del Monte
Corporation (alternate); and Tod Parker, Hershey Foods Corporation (alternate).
COOPERATION AMONG CORE-MARK NEWCO, THE REORGANIZED DEBTORS, THE PCT AND
THE RCT
20. Core-Mark Newco and the Reorganized Debtors shall use their
reasonable best efforts to cooperate with the PCT and the RCT to effectuate the
resolution of Claims and accomplish the other duties and responsibilities of the
PCT and RCT as set forth in the Plan, the PCT Agreement and the RCT Agreement.
Such cooperation shall include, but not be limited to, making books and records
relevant to Claims resolution available to the PCT and the RCT, as well as
making employees available to provide necessary and relevant information to the
PCT and the RCT, provided, however, that Core-Mark Newco and the Reorganized
Debtors shall not be obligated to comply with any request that is unduly
burdensome or that may include the release of confidential or proprietary
information unless reasonable and appropriate safeguards for the confidential or
proprietary information have been agreed to by Core-Mark Newco or the applicable
Reorganized Debtor. Core-Mark Newco and the Reorganized Debtors shall reimburse
(a) the RCT for any cash proceeds which constitute RCT Assets collected by any
of the Reorganized Debtors from and after March 23, 2004, or otherwise provided
to Core-Mark Newco, and (b) the PCT for any cash proceeds which constitute PCT
Assets collected by any of the Reorganized Debtors from and after the Effective
Date, or otherwise provided to Core-Mark Newco.
26
CREATION OF PROFESSIONAL FEE ESCROW ACCOUNT
21. On or before the Effective Date, the Debtors shall establish and
fund the Professional Fee Escrow Account which shall be held by the PCT with the
sum necessary for the purpose of paying all accrued and anticipated Professional
Fees through the Effective Date.
DEBTORS' RETAINED CAUSES OF ACTION
22. Except as otherwise provided in the Plan, Core-Mark Newco, the
Reorganized Debtors, the PCT, and the RCT, as applicable, shall retain and be
vested with 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 of the Plan
as well as those Causes of Action listed on Exhibit A of the Plan.
SETOFF/RECOUPMENT BY HOLDERS OF CLAIMS
23. Notwithstanding anything contained in the Confirmation Order or
the Plan to the contrary, the rights of Claim Holders to assert and exercise any
setoff and/or recoupment rights that they may have under applicable law shall
not be impaired by the Plan or the Confirmation Order and the Claim Holders may
exercise any setoff and/or recoupment rights that they may have under applicable
law after the Effective Date.
DISTRIBUTION RECORD DATE
24. As of the close of business on the Distribution Record Date, the
transfer register for all Claims maintained by the Debtors or their agents,
except for the Claims based on the Old Notes, 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
27
transfer of any Claims occurring after the Distribution Record Date and shall be
entitled for all purposes 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 but the Effective Date shall
be the Distribution Notification Date for the Holders of the Old Notes Claims.
SUBSTANTIVE CONSOLIDATION
25. The substantive consolidation of the Debtors for the purpose of
implementing the Plan, including for purposes of voting, confirmation and
distributions to be made under the Plan, is approved. Accordingly, for purposes
of implementing the Plan, (i) all assets and liabilities of the Debtors are
deemed merged; (ii) any Claim against any Debtor and any guarantee thereof
executed by any other Debtor and any joint or several liability of any of the
Debtors are deemed a single obligation of the consolidated Debtors,(5) and (iii)
all Claims Filed or to be Filed in the Chapter 11 Cases of any of the Debtors
are deemed Filed against the consolidated Debtors and are deemed an obligation
of the consolidated Debtors.
DISCHARGE, RELEASE, INJUNCTION, AND RELATED PROVISIONS
SUBORDINATION
26. The classification and manner of satisfying all Claims and
Equity Interests and the respective distributions and treatments under the Plan
take into account and/or conform to the relative priority and rights of the
Claims and Equity Interests in each Class in accordance with any contractual,
legal and equitable subordination rights relating thereto, whether arising under
contract, general principles of equitable subordination, section 510(b) of the
Bankruptcy
- -------------------------
(5) As such, Claims listed on Exhibit D, attached hereto, which assert
identical Claims against multiple Debtors, shall be disallowed for all
purposes, leaving one Claim for each respective Holder against the
Debtors' estates, as set forth on Exhibit D hereto.
28
Code or otherwise, and any and all such rights are settled, compromised and
released pursuant to the Plan. This 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, except to the extent,
if any, otherwise provided for in the Plan.
MUTUAL RELEASES BY RELEASEES
27. 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 THE DEBTORS' ORDINARY COURSE BUSINESS DEALINGS
WITH SUCH COMMITTEE'S AND/OR OCRC'S MEMBERS.
29
RELEASES BY HOLDERS OF CLAIMS
28. 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, A 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.
29. 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 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,
30
(x) A DEBTOR, A 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 OR ITS SUBSIDIARIES AFTER THE EFFECTIVE DATE.
INDEMNIFICATION
30. 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
31
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 OR ITS SUBSIDIARIES AFTER THE EFFECTIVE DATE. THE DEBTORS WILL
FUND THE PURCHASE OF TAIL LIABILITY COVERAGE UNDER THE DEBTORS' DIRECTORS AND
OFFICERS INSURANCE POLICIES.
31. The Plan and Confirmation Order shall not diminish or impair the
enforceability of the D&O Policies. Likewise, the Plan and Confirmation Order
shall not amend the terms of the D&O policies to expand coverage thereunder.
Finally, nothing in the Plan or Confirmation Order shall impair the rights of
the D&O Carriers, if any, to pursue rescission of the D&O Policies.
EXCULPATION
32. THE DEBTORS, THE REORGANIZED DEBTORS, CORE-MARK NEWCO, THE D&O
RELEASEES, THE POST-PETITION LENDERS, THE TRANCHE B LENDERS, THE PRE-PETITION
LENDERS, THE AGENTS, THE PRE-PETITION AGENT, THE OLD NOTES TRUSTEES, THE
COMMITTEE, THE OCRC, 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, EXCEPT IN CASES OF
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
32
DISCHARGE OF CLAIMS AND TERMINATION OF EQUITY INTERESTS
33. EXCEPT AS OTHERWISE PROVIDED HEREIN OR IN THE PLAN: (1) THE
RIGHTS AFFORDED HEREIN OR IN THE PLAN AND THE TREATMENT OF ALL CLAIMS AND EQUITY
INTERESTS HEREIN OR IN THE PLAN 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 REORGANIZED DEBTOR OR ANY OF ITS RESPECTIVE ASSETS OR
PROPERTIES, (2) ON THE EFFECTIVE DATE, ALL SUCH CLAIMS AGAINST, AND EQUITY
INTERESTS IN, ANY REORGANIZED 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.
INJUNCTION
34. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR IN THE PLAN,
ALL HOLDERS OF CLAIMS AND EQUITY INTERESTS ARE PERMANENTLY ENJOINED, FROM AND
AFTER THE EFFECTIVE DATE, FROM (a) COMMENCING OR CONTINUING IN ANY MANNER ANY
ACTION OR OTHER PROCEEDING OF ANY KIND ON ANY SUCH CLAIM OR EQUITY INTEREST
AGAINST THE DEBTORS, THEIR ESTATES, CORE-MARK NEWCO OR THE REORGANIZED DEBTORS
UNLESS A PREVIOUS ORDER MODIFYING THE STAY PROVIDED UNDER SECTION 362 OF THE
BANKRUPTCY CODE WAS ENTERED BY THE COURT; (b) THE ENFORCEMENT, ATTACHMENT,
COLLECTION OR RECOVERY BY ANY MANNER OR MEANS OF ANY JUDGMENT, AWARD, DECREE OR
ORDER AGAINST THE DEBTORS, THEIR ESTATES, CORE-MARK NEWCO OR THE REORGANIZED
DEBTORS; 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.
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POLICE AND REGULATORY POWERS
35. Notwithstanding the foregoing, the releases, exculpation and
injunction outlined herein shall be binding on the PBGC on the terms identified
in section X.E of the Plan and shall not preclude a governmental entity from
enforcing its police and regulatory powers.
RETENTION OF JURISDICTION
36. Pursuant to sections 105(a) and 1142 of the Bankruptcy Code, and
sections 157 and 1334 of title 28 of the United States Code, notwithstanding the
entry of the Confirmation Order and the occurrence of the Effective Date, the
Bankruptcy Court shall retain such exclusive jurisdiction over the Chapter 11
Cases and the Plan after the Effective Date, as legally permissible, including
jurisdiction to:
(i) 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;
(ii) 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 Confirmation Date;
(iii) 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 a
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 VIII.A of the Plan to add any executory
contracts or unexpired leases to the list of executory
contracts and unexpired leases to be assumed;
(iv) ensure that distributions to Holders of Allowed Claims are
accomplished pursuant to the provisions hereof;
(v) decide or resolve any motions, adversary proceedings,
contested or litigated matters and any other matters and grant
or deny any applications involving the Debtors;
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(vi) enter such orders as may be necessary or appropriate to
implement or consummate and enforce the provisions hereof and
all contracts, instruments, releases, indentures and other
agreements or documents created in connection with the Plan
or the Disclosure Statement;
(vii) 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;
(viii) 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;
(ix) resolve any cases, controversies, suits or disputes with
respect to the releases, injunction and other provisions
contained in Article XII of the Plan and enter such orders as
may be necessary or appropriate to implement such releases,
injunction and other provisions;
(x) enter and implement such orders as are necessary or
appropriate if the Confirmation Order is for any reason
modified, stayed, reversed, revoked or vacated;
(xi) 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
(xii) enter an order and/or final decree concluding the Chapter 11
Cases.
MISCELLANEOUS PROVISIONS
SETTLEMENTS
BREWSTER DAIRY
37. The escrow established in connection with the Order (I)
Authorizing And Approving The Sale Of Real Estate And Personal Property Located
Therein - 1501 S.E. 59th Street, Oklahoma City, Oklahoma, And (II) Resolving The
Limited Objection Of Brewster Dairy, Inc. To Same" [D.I. 5771] shall be
maintained by the PCT until such time as Brewster Dairy's Claim is reconciled by
the PCT.
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CARROLLTON AND GARLAND SCHOOL DISTRICTS
38. In acknowledgment of sections 32.01 and 32.05 of the Texas
Property Tax Code, simple interest of 5% shall be paid on the Allowed Claims of
the Carrollton-Farmers Branch Independent School District and the Garland
Independent School District (collectively, the "School Districts"). Furthermore,
such interest shall run from February 1, 2004, and the School Districts' liens
on account of such Claims shall remain in full force and effect after the
Confirmation Date.
CIRCLE K STORES
39. Circle K Stores, Inc. ("Circle K") and Core-Mark International
("Core-Mark") are parties to several agreements, including, but not limited to:
(i) that certain "Agreement To Design, Equip, Manage And Operate A Distribution
Center" made as of November 3, 2000, as amended pre-petition (the "Management
Agreement"); and (ii) that certain "Merchandise Distribution Agreement" made as
of January 26, 2001 (the "Distribution Agreement", and together with the
Management Agreement, the "Circle K Agreements"). The Debtors have sought to
assume the Circle K Agreements under the Plan. As required by the Circle K
Agreements and section 365(c)(1) of the Bankruptcy Code, Circle K consents to
Core-Mark assuming the Circle K Agreements pursuant to this Plan. Circle K and
the Debtors agree that Circle K's present consent to assumption is strictly
limited to these Bankruptcy Cases and this Plan. Circle K's consent is without
prejudice or waiver of Circle K's rights under the Circle K Agreements to refuse
to accept performance from an entity other than Core-Mark International, Inc.,
or to refuse to consent to assumption under section 365(c) of the Bankruptcy
Code in any future bankruptcy case or pursuant to any other proposed plan of
reorganization.
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MIAMI-DADE TAX COLLECTOR
40. The Miami-Dade Tax Collector shall have an Allowed Class 1(B)
Claim in the amount of $101,282.01 and agrees that all other Claims it filed or
will file in these Chapter 11 Cases have been paid or are otherwise expunged.
The Miami-Dade Tax Collector shall retain its liens as authorized under state
law through and after the Confirmation Date until its Allowed Claim is paid in
full, and shall be treated equally with other Claim Holders in Class 1(B).
LUBBOCK CENTRAL APPRAISAL DISTRICT
41. In acknowledgment of section 32.01 and 32.05 of the Texas
Property Tax Code and Debtors' liquidation of certain property within the
jurisdiction of the Lubbock Central Appraisal District, the Debtors shall either
allow or object to the Claims of the Lubbock Central Appraisal District within
180 days from the Effective Date. Furthermore, any Allowed Claim of the Lubbock
Central Appraisal District shall be entitled to 5% simple interest beginning
from the Petition Date, and any Allowed Claim shall be paid in full within 180
days from the Effective Date. Lubbock Central Appraisal District will retain
their liens in the proceeds of the sales until its claims are satisfied in their
allowed amount, plus interest as set forth herein.
BELL COUNTY, COUNTY OF BRAZOS, ET AL., COUNTY OF DENTON, HENDERSON
COUNTY, LONGVIEW ISD, CITY OF WACO AND WACO ISD
42. The liens of Bell County, Country of Brazos, County of Denton,
Henderson County, Longview Independent School District, City of Waco and Waco
Independent School District (collectively, the "Counties") shall continue after
the Confirmation Date, including with regard to post-petition taxes that may be
due and owing. The PCT shall pay any post-petition taxes that may be due to the
Counties in the ordinary course of business without the Counties being required
to file a proof of Claim.
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XL SPECIALTY INSURANCE COMPANY
43. Notwithstanding any provision of the Plan, the treatment of the
claims of XL Specialty Insurance Company and OneBeacon Insurance Company
(formerly known as CGU Insurance Company) (collectively "XL") under the Plan
shall be in accordance with the terms set forth in the Order Resolving Motion of
CGU Insurance Company, OneBeacon Insurance Company and XL Specialty Insurance
Company (the "XL Order"), subject to the Court's entry of the XL Order. In the
event that the XL Order is not entered, all of XL's objections to its treatment
under the Plan shall be preserved and may be raised and adjudicated at any time
within one year after confirmation of the Plan.
DOMINO FOODS, INC.
44. The Debtors shall pay to Domino Foods, Inc. ("Domino Foods")
$65,280.00 on or before July 30, 2004, in satisfaction of Domino Food's
Administrative Claim for goods delivered post-petition in the ordinary course of
business. Except as set forth above, Domino Foods, the Debtors, the PCT and the
RCT each reserve all rights, claims, counterclaims, defenses, actions, and
Causes of Action, including without limitation the rights set out in Article VI
and Article IX of the Plan.
45. The payment by the Debtors of the $65,280 Administrative Claim
to Domino Foods as set forth in paragraph 43 above shall be treated as the first
distribution made by the PCT to the RCT.
PBGC
46. Notwithstanding anything to the contrary in this Order, the
provisions as set forth in Article X.E of the Plan shall govern all issues with
respect to the PBGC.
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ATLANTIC COAST WAREHOUSE DISTRIBUTORS
47. Nothing contained in the Plan or Confirmation Order shall impair
or preclude Atlantic Coast Warehouse Distributors from contesting any right of
setoff asserted by the Debtors, the RTC, the PCT or Core-Mark Newco against the
Claims of Atlantic Coast Warehouse Distributors nor shall anything in the Plan
or Confirmation Order allow the Debtors, the RTC, the PTC or Core-Mark Newco (or
any other responsible entity) to refuse to make payment to Atlantic Coast
Warehouse Distributors on account of any Allowed Claim it may have following the
Claims Objection Deadline.
UNITED STATES
48. Notwithstanding any other provision in the Plan or Confirmation
Order, the claims, rights and interests of the United States shall be governed
by applicable federal law. Notwithstanding any other provision in the Plan or
Confirmation Order, unless the Allowed Administrative Claims of the United
States are paid in full, in cash on the Effective Date, such Allowed Claims
shall accrue interest at the applicable federal statutory rate from the
Effective Date. In addition, no United States government agency that did not
affirmatively vote in favor of the Plan shall be bound by the releases contained
in Article XII.C of the Plan.
CHEP USA
49. The "Stipulation Regarding Limited Objection of CHEP USA to
Confirmation of Debtors' and Official Committee of Unsecured Creditors' Third
Amended and Revised Joint Plan of Reorganization of Fleming Companies, Inc. and
its Filing Subsidiaries" is approved and incorporated as though fully set forth
herein.
JACKSON CAPITAL MANAGEMENT LLC
50. The terms of the Stipulation between the Debtors and Jackson
Capital Management LLC as filed are approved and incorporated as though fully
set forth herein.
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EFFECTUATING DOCUMENTS, FURTHER TRANSACTIONS AND CORPORATION ACTION
51. 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 securities issued pursuant hereto.
52. Prior to, on or after the Effective Date (as appropriate), all
matters provided for hereunder or in the Plan that would otherwise require
approval of the shareholders or directors of the Debtors or the 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.
DISSOLUTION OF COMMITTEES
53. The Committee and the OCRC shall be dissolved on the Effective
Date, and their respective members shall be released and discharged from all
rights and duties arising from, or related to, the Chapter 11 Cases, provided
that after the Effective Date, the PCT shall pay the reasonable fees and
expenses of the Committee's Professionals incurred in connection with winding up
the Chapter 11 Cases, and the RCT shall pay the reasonable fees and expenses of
the OCRC's Professionals incurred in conjunction with winding up the Chapter 11
Cases.
PAYMENT OF STATUTORY FEES
54. All fees payable pursuant to 28 U.S.C. Section 1930(a), 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 Cases are converted, dismissed or closed,
whichever occurs first.
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MODIFICATION OF THE PLAN
55. 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, after
the entry of this 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.
REVOCATION OF THE PLAN
56. If the Effective Date does not occur by December 31, 2004, 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 Class of Claims), any assumption or rejection of executory
contracts or unexpired leases effected thereby, and any document or agreement
executed pursuant thereto, 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.
SUCCESSORS AND ASSIGNS
57. The rights, benefits and obligations of any Person or Entity
named or referred to herein or in the Plan shall be binding on, and shall inure
to the benefit of any heir, executor, administrator, successor or assign of such
Person or Entity.
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SECTION 1146 EXEMPTION
58. Pursuant to section 1146 (c) of the Bankruptcy Code, the
issuance, transfer or exchange of a security, or the making or delivery of an
instrument of transfer under the Plan shall not be taxed under any law imposing
a stamp tax or similar tax.
FURTHER ASSURANCES
59. The Debtors, Reorganized Debtors, Core-Mark Newco and all
Holders of Claims receiving distributions hereunder or in the Plan 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.
REFERENCES TO PLAN PROVISIONS
60. The failure specifically to include or to refer to any
particular provision of the Plan in this Confirmation Order shall not diminish
or impair the effectiveness of such provision, it being the intent of the Court
that the Plan be confirmed in its entirety.
POST-CONFIRMATION NOTICES AND BAR DATES
NOTICE OF ENTRY OF THE CONFIRMATION ORDER
61. In accordance with Bankruptcy Rules 2002 and 3020(c), within ten
business days of the Effective Date, the Debtors or the Reorganized Debtors, as
applicable, shall give notice of the entry of this Confirmation Order, in
substantially the form of Exhibit C annexed hereto (the "Notice of
Confirmation"), by United States mail, first class postage prepaid, by hand, or
by overnight courier service, to all parties having been served with the
Confirmation Hearing Notice; provided, however, that no notice or service of any
kind shall be required to be mailed or made upon any person to whom the Debtors
or the Reorganized Debtors, as applicable, mailed a Confirmation Hearing Notice
that was returned marked "undeliverable as addressed," "moved, left no
forwarding address" or "forwarding order expired," or similar reason, unless the
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Debtors or Reorganized Debtors have been informed in writing by such person, or
otherwise have actual knowledge, of that person's new address. To supplement the
notice described in the preceding sentence, within fifteen days of the date of
the Effective Date, the Debtors or the Reorganized Debtors, as applicable, shall
publish a Notice of Confirmation once in the USA Today, The Wall Street Journal,
The New York Times, The Globe and Mail, USA Today - Global Edition and The
International Herald Tribune.
62. Mailing and publication of the Notice of Confirmation in the
time and manner set forth in the preceding paragraph shall constitute good and
sufficient notice under the particular circumstances and in accordance with the
requirements of Bankruptcy Rules 2002 and 3020(c), and no further notice is
necessary.
SECOND BAR DATE FOR REQUESTS FOR ADMINISTRATIVE CLAIMS
63. All requests for administrative expenses pursuant to section 503
of the Bankruptcy Code that arose after October 31, 2003 that have not been paid
as of the Effective Date must be filed with the Court within forty-five (45)
after the Effective Date.
SUBSTANTIAL CONTRIBUTION CLAIMS
64. All requests by: (i) a professional not retained by the Debtors,
the Committee or the OCRC under section 327 or 363 of the Bankruptcy Code that
asserts a Claim for fees incurred after 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 that asserts a Claim for
fees incurred after June 1, 2004 alleged to be for a substantial contribution
under section 503(b) of the Bankruptcy Code, must be filed within forty-five
(45) days after the Effective Date.
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FINAL FEE APPLICATIONS
65. Any Professional or other entity seeking an allowance, pursuant
to sections 327, 328, 330, 331, 363, 503(b), 507(a)(1) and/or 1103 of the
Bankruptcy Code, of (i) an Administrative Claim or (ii) final compensation or
reimbursement of expenses incurred on or before the Confirmation Date for
professional services rendered to the Debtors or in connection with these cases
("Professional Fees and Expenses") shall file with the Court an application for
allowance of such Administrative Claim or Professional Fees and Expenses (each,
an "Application"), and serve a copy thereof on each of the following entities
not later than forty-five (45) days after the Effective Date:
Co-counsel to the Debtors Co-counsel to the Debtors
Kirkland & Ellis LLP Pachulski, Stang, Ziehl, Young, Jones &
200 East Randolph Drive Weintraub P.C.
Chicago, Illinois 60601 919 N. Market Street, Sixteenth Floor
Attn: Geoffrey A. Richards, Esq. Post Office Box 8705
and Janet S. Baer, Esq. Wilmington, Delaware 19899-8705
(Courier 19801)
Attn: Laura Davis Jones, Esq.
and Christopher J. Lhulier, Esq.
Counsel for the United States Trustee Co-counsel for the Official Committee of
Office of the United States Trustee Unsecured Creditors
844 N. King Street, Second Floor Pepper Hamilton LLP
Wilmington, Delaware 19801 100 Renaissance Center
Attn: Joseph McMahon, Esq. Detroit, Michigan 48243
Attn: I. William Cohen, Esq.
and Robert Hertzberg, Esq.
Co-counsel for the Official Committee of Co-counsel for the Official Committee of
Unsecured Creditors Reclamation Creditors
Milbank, Tweed, Hadley & McCloy LLP Klehr Harrison Harvey Branzburg & Ellers LLP
1 Chase Manhattan Plaza 260 South Broad Street
New York, New York 10005 Philadelphia, Pennsylvania 19102
Attn: Dennis Dunne, Esq. Attn: Morton R. Branzburg, Esq.
and Paul S. Aronzon, Esq.
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Co-counsel for the Official Committee of Reclamation
Creditors
Piper Rudnick LLP
6225 Smith Avenue
Baltimore, Maryland 21209-3600
Attn: Mark J. Friedman, Esq.
66. Each Application shall comply with the applicable provisions of
the Bankruptcy Code, the Bankruptcy Rules and the Local Rules of this Court, and
shall set forth, among other things, in reasonable detail: (i) the name and
address of the applicant; (ii) the nature of the Professional Fees and Expenses
for which reimbursement is requested for all periods from the date the
particular applicant was retained through the Confirmation Date; (iii) the
amount of the Professional Fees and Expenses requested; (iv) the amounts of
Professional Fees and Expenses previously allowed by the Court, if any; and (v)
the amount or amounts of payments made to date, if any, by the Debtors towards
such allowed amount.
67. 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 sixty (60) days after the later of (i) the date of the filing of the
application for final compensation or (ii) forty-five (45) days after the
occurrence of the Effective Date.
68. No applications need be filed for compensation and reimbursement
by a professional person for services rendered or expenses incurred on or after
the Confirmation Date, or for professional persons acting on behalf of the agent
for Exit Financing Facility, the Tranche B Loan, the Prepetition Credit Facility
or the DIP Credit Facility, and such compensation and reimbursement may be paid
by the Reorganized Debtors, Core-Mark Newco or the PCT, as applicable, in
accordance with ordinary business practices and without order of the Court.
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NON-MATERIAL CHANGES
69. Without limiting the generality of the foregoing, and without
the need for a further order or authorization of this Court, the Debtors, with
the prior written consent of the Committee or the PCT Advisory Board, shall be
authorized and empowered to make non-material modifications to the exhibits to
the Plan as may be reasonably necessary.
AUTHORIZATION TO CONSUMMATE
70. The Debtors are authorized to consummate the Plan at any time
after the entry of this Order, subject to satisfaction or waiver of the
conditions precedent to the Effective Date set forth in Article XI of the Plan.
FINAL ORDER
71. This Order is a final order and the period in which an appeal
must be filed shall commence upon the entry hereof.
IT IS SO ORDERED.
Wilmington, Delaware
Dated: July 26, 2004
/s/ Mary F. Walrath
----------------------
Honorable Mary F. Walrath
Chief United States Bankruptcy Judge
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