EXHIBIT 2.1
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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- ------------------------------------ x Chapter 11
:
In re: : Case No. 02-10485 (PCB)
: Case No. 02-10486 (PCB)
ICH CORPORATION, et al., : Case No. 02-10488 (PCB)
:
Debtors. : (Jointly Administered)
:
- ------------------------------------ x
TRIARC COMPANIES, INC.'S
THIRD AMENDED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE FOR
ICH CORPORATION, SYBRA, INC. AND SYBRA OF CONNECTICUT, INC.
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Dated: New York, New York
November 22, 2002
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
Alan W. Kornberg (AK/0756)
John R. Ashmead (JA/4756)
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3000
Attorneys for Triarc Companies, Inc.
TABLE OF CONTENTS
PAGE
I. DEFINITIONS AND CONSTRUCTION OF TERMS.................................2
A. Definitions..................................................2
B. Interpretation, Application of Definitions and Rules of
Construction................................................14
II. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS........................14
A. Introduction................................................14
1. Unclassified Claims................................15
2. Classified Claims..................................15
III. TREATMENT OF ADMINISTRATIVE CLAIMS, FEE CLAIMS AND
PRIORITY TAX CLAIMS..................................................16
A. Administrative Claims.......................................16
B. Bar Date for Administrative Claims..........................16
C. Fee Claims..................................................17
D. Priority Tax Claims.........................................17
IV. TREATMENT OF CLAIMS AND EQUITY INTERESTS............................18
A. Class 1 - Other Priority Claims.............................18
B. Class 2 - Secured Lender Guaranty and Secured Lender Claims.19
C. Class 3 - Other Secured Claims..............................20
D. Class 4 - Care Financial Claim Against ICH..................22
E. Class 5 - ICH General Unsecured Claims......................22
F. Class 6 - Subsidiary General Unsecured Claims...............22
G. Class 7 Equity Interests...................................23
H. Special Provision Regarding Unimpaired Claims...............24
I. Special Provisions Regarding Secured Lender Claims..........24
1. Amounts............................................24
2. Liens..............................................24
3. Fees...............................................24
J. Special Provision Regarding Bicks and Drechsler...................24
V. PROVISIONS REGARDING VOTING UNDER THIS PLAN..........................25
A. Classes Entitled to Vote....................................25
B. Acceptance by Impaired Classes..............................25
C. Cramdown....................................................25
VI. EXECUTORY CONTRACTS AND UNEXPIRED LEASES.............................25
A. Assumption or Rejection of Contracts and Leases.............25
B. Bar to Rejection Damages....................................26
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VII. PROVISIONS REGARDING CORPORATE GOVERNANCE AND
MANAGEMENT OF REORGANIZED ICH........................................27
A. Continued Corporate Existence; Dissolution of
Reorganized ICH.............................................27
B. Certificate of Incorporation and By-laws....................27
C. Directors and Officers; Effectuating Documents; Further
Transactions................................................27
D. The ICH Plan Administrator..................................27
1. Appointment........................................27
...................................................28
2. Rights, Powers and Duties of Reorganized ICH and
the ICH Plan Administrator.........................28
3. ICH Plan Committee. ..............................29
4. Compensation of the ICH Plan Administrator.........29
5. Indemnification....................................30
6. Insurance..........................................30
7. Special Authority to Object to Claims and
Interests and to Settle Disputed Claims............31
E. Cancellation of Securities, Instruments and Agreements
Evidencing Claims and Equity Interests......................31
F. Release of Liens............................................32
VIII. PROVISIONS REGARDING CORPORATE GOVERNANCE AND
MANAGEMENT OF REORGANIZED SYBRA AND SYBRA CONN.......................32
A. NewCo.......................................................32
B. Directors and Officers of Reorganized Sybra and Reorganized
Sybra Conn.; Effective Date Sybra and Sybra Conn.'s
Certificates of Incorporation and Effective Date Sybra
and Sybra Conn.'s By-laws...................................32
1. Reorganized Sybra..................................32
2. Reorganized Sybra Conn.............................33
IX. MEANS OF IMPLEMENTATION, PROVISIONS REGARDING
DISTRIBUTIONS UNDER THIS PLAN AND TREATMENT OF
DISPUTED, CONTINGENT AND UNLIQUIDATED
ADMINISTRATIVE CLAIMS, CLAIMS AND EQUITY INTERESTS...................33
A. Funding for ICH.............................................33
1. Sale of the ICH Assets.............................33
2. Payment of NewCo Consideration to ICH..............33
B. Funding for Sybra and Sybra Conn............................33
C. Distributions...............................................34
1. Methods of Distributions Under the Plan............34
2. Objections to and Resolution of Claims; NewCo
Objection Rights with Respect to ICH Claims........36
3. Allocation of Consideration........................36
4. Cancellation and Surrender of Existing ICH Equity
Interests..........................................37
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D. Estimation...................................................37
E. The Amended and Effective Date Certificates of
Incorporation, the Amended and Effective Date By-laws
and Other Implementation Documents..........................37
F. Intercompany Claims.........................................37
X. EFFECT OF CONFIRMATION OF THIS PLAN..................................38
A. Continued Corporate Existence...............................38
B. Dissolution of Creditors' Committee; Cessation of
Professional Services.......................................38
C. Revesting of Assets.........................................38
D. Discharge of the Debtors....................................38
E. Debtors' Releases of John Bicks and Robert Drechsler........39
F. Injunction..................................................39
G. Preservation/Waiver of Causes of Action.....................39
1. Preservation of Rights.............................39
...................................................40
2. Cause of Action Proceeds...........................40
H. Votes Solicited in Good Faith...............................40
I. Administrative Claims Incurred after the Confirmation Date..40
J. Exculpation, Limitations....................................40
1. Exculpation........................................40
...................................................41
2. Limitation with Respect to Governmental Entities...41
K. Term of Bankruptcy Injunction or Stays......................41
L. Preservation of Insurance...................................41
M. Setoffs.....................................................41
N. Indemnification Obligations.................................41
XI. RETENTION OF JURISDICTION............................................42
XII. MISCELLANEOUS PROVISIONS.............................................42
A. Payment of Statutory Fees...................................42
B. Amendment, Modification or Withdrawal of this Plan;
Severability................................................43
C. Governing Law...............................................43
D. Filing or Execution of Additional Documents.................43
E. Section 338(h)(10) Election.................................43
F. Withholding and Reporting Requirements......................43
G. Exemption From Transfer Taxes...............................44
H. Waiver of Federal Rule of Civil Procedure 62(a).............44
I. Headings....................................................44
J. Exhibits....................................................44
K. Notices.....................................................44
L. Plan Supplement.............................................45
M. Conflict....................................................45
N. Setoff by the United States.................................45
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XIII. CONDITIONS PRECEDENT TO CONFIRMATION OF THE PLAN
AND THE EFFECTIVE DATE...............................................45
A. Confirmation of this Plan...................................45
B. Conditions Precedent to the Confirmation of the Plan........45
C. Conditions Precedent to Effectiveness.......................45
D. Waiver of Conditions........................................46
E. Effect of Failure of Conditions.............................46
F. Vacatur of Confirmation Order. ............................46
iv
Triarc Companies, Inc. ("Triarc") proposes this third amended
joint plan of reorganization for ICH Corporation ("ICH"), Sybra, Inc. ("Sybra"),
and Sybra of Connecticut, Inc. ("Sybra Conn.," together with ICH and Sybra, the
"Debtors") pursuant to section 1121 of the Bankruptcy Code, and the Bankruptcy
Court's Order dated August 12, 2002, terminating in favor of Triarc the Debtors'
exclusive right to file a plan:
I.
DEFINITIONS AND CONSTRUCTION OF TERMS
A. DEFINITIONS.
Unless otherwise defined herein, or the context otherwise requires, the
following terms shall have the respective meanings set forth below:
ADMINISTRATIVE CLAIM means any right to payment constituting a cost or
expense of administration of the Chapter 11 Cases of
a kind specified under section 503(b) of the
Bankruptcy Code and entitled to priority under
sections 507(a)(1) or 507(b) of the Bankruptcy Code,
including, without limitation, any actual and
necessary costs and expenses of preserving the
Debtors' Estates, any actual and necessary costs and
expenses of operating the Debtors' businesses, any
indebtedness or obligations incurred or assumed by
the Debtors in connection with the conduct of their
businesses, including, without limitation, for the
acquisition or lease of property or an interest in
property or the rendition of services, all
compensation and reimbursement of expenses to the
extent awarded by the Bankruptcy Court under sections
330, 331 or 503 of the Bankruptcy Code, and any fees
or charges assessed against the Debtors' Estates
under section 1930 of chapter 123 of title 28 of the
United States Code.
ADMINISTRATIVE AND means the accounts to be funded by NewCo and/or
PRIORITY CLAIMS FUNDS Reorganized Sybra with Cash on the Effective Date for
the payment of Administrative Claims, Other Priority
Claims and, in the case of Reorganized ICH, Priority
Tax Claims. A single Administrative and Priority
Claim Fund may be established for Reorganized Sybra
and Reorganized Sybra Conn. The amount of Cash in
each such fund shall be equal to all Allowed and all
Disputed Claims of such type (excluding any
duplicative Claims or Claim amounts), unless the
Bankruptcy Court orders otherwise.
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ALLOWED means with respect to a Claim or Equity Interest:
(i) a Claim or Equity Interest that has been
listed by the Debtors on their Schedules as
liquidated in amount and not disputed or contingent
and for which no proof of claim has been filed by the
applicable Bar Date, unless it is a Disputed Claim;
or
(ii) a Claim for which a proof of Claim has been
filed by the applicable Bar Date, or otherwise has
been deemed timely filed under applicable law, for
which no objection or request for estimation has been
filed by the Claims Objection Deadline, unless it is
a Disputed Claim; or
(iii) a Claim or Equity Interest that is Allowed
(a) by a Final Order; (b) by a settlement
stipulation; or (c) pursuant to the terms of this
Plan; or
(iv) with respect to an Administrative Claim, an
Administrative Claim for which a holder thereof filed
and served a request for payment of such
Administrative Claim, unless it is a Disputed Claim.
The terms "Allowed Claim" or "Allowed Equity
Interest" shall not, for purposes of computing
distributions under this Plan, include interest on
such Claim or Equity Interest from and after the
Petition Date, unless otherwise expressly set forth
in this Plan.
AMENDED ICH CERTIFICATE means Reorganized ICH's certificate of incorporation
OF INCORPORATION AND and by-laws in effect under the laws of the State of
BY-LAWS Delaware, as amended pursuant to this Plan.
AVAILABLE CASH means all Cash other than Restricted Cash held in the
ICH General Unsecured Fund or the Insider Claim
Reserve as of the date ten (10) Business Days prior
to the date of any distribution.
BALLOTS means each of the ballot forms distributed with the
Disclosure Statement to each holder of an Impaired
Claim upon which is to be indicated, among other
things, acceptance or rejection of this Plan.
BANKRUPTCY CODE means title 11 of the United States Code, 11
U.S.C.ss.ss. 101 ET SEQ., as amended from time to
time.
3
BANKRUPTCY COURT means the United States Bankruptcy Court for the
Southern District of New York in which the Chapter 11
Cases were commenced on February 5, 2002, or any
other court with jurisdiction over the Chapter 11
Cases.
BANKRUPTCY RULES means the Federal Rules of Bankruptcy Procedure as
promulgated by the United States Supreme Court under
section 2075 of title 28 of the United States Code,
and local rules of the Bankruptcy Court, as now in
effect or hereafter amended.
BAR DATE means the applicable deadline by which a proof of
Claim must have been or must be filed, as established
by an order of the Bankruptcy Court, including the
Bar Date Order and the Confirmation Order. The term
"Bar Date" also includes the deadline for filing Fee
Claims established pursuant to Section III.C of this
Plan, the deadline for filing Administrative Claims
established pursuant to Section III.B of this Plan
and the deadline for filing Claims arising from
rejection of executory contracts and unexpired leases
established pursuant to Section VI.B of this Plan.
BAR DATE ORDER means the Order (i) Fixing Deadline for the Filing of
Proofs of Claim and (ii) Approving the Form and
Manner of Notice with Respect Thereto entered by the
Bankruptcy Court on May 29, 2002, as the same may
have been or hereafter may be amended, modified or
supplemented.
BICKS means John A. Bicks, Co-Chairman and Co-CEO of the
Debtors.
BICKS EMPLOYMENT means that Employment Agreement dated September 1,
AGREEMENT 1999 with ICH and its subsidiaries, as further
amended and modified.
BICKS/DRECHSLER LETTER means that certain letter agreement, dated November
AGREEMENT 15, 2002, amongst NewCo, Bicks and Drechsler, a copy
of which is attached hereto as Exhibit E.
BUSINESS DAY means every day other than a Saturday, Sunday or
"legal holiday" ( as defined in Bankruptcy Rule
9006(a)).
CARE FINANCIAL means Care Financial Corporation, a Delaware
corporation wholly owned by ICH.
CARE FINANCIAL CLAIM means the Claim of Care Financial against ICH.
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CARE FINANCIAL RETIREES means those individuals to whom Care Financial is
obligated in respect of the Care Financial Retirees
Liability.
CARE FINANCIAL RETIREES means the post-retirement healthcare and life
LIABILITY insurance benefit obligations to the Care Financial
Retirees which Care Financial assumed from Lone Star
Liquidating Trust in 1998.
CARE INTERCOMPANY means the amounts Care Financial owes to (i) Sybra
PAYABLES ($356,524.65 as listed on the Schedules) and (ii) ICH
($145,000 as listed on the Schedules).
CASH means legal tender of the United States of America.
CAUSES OF ACTION means all Claims, causes of action (including those
assertable derivatively), liabilities, obligations,
suits, debts, sums of money, damages, demands,
judgments, whether known or unknown, now owned or
hereafter acquired by the Debtors, and the Cash and
non-Cash proceeds thereof, whether arising under the
Bankruptcy Code or other Federal, state or foreign
law, equity or otherwise, including, without
limitation, any causes of action against any
Professionals and any causes of action arising under
sections 510, 544, 547, 548, 549, 550, 551, 553 or
any other section of the Bankruptcy Code or other
applicable law.
CHAPTER 11 CASES means the Chapter 11 cases commenced by the Debtors.
CLAIM means a "claim," as defined in section 101(5) of the
Bankruptcy Code.
CLAIMS PAYMENT FUNDS means the Administrative and Priority Claim Funds,
the ICH General Unsecured Fund, the Subsidiary
General Unsecured Fund, the Secured Lender Claim
Fund.
CLAIMS OBJECTION means the last day for filing objections to Disputed
DEADLINE Claims (other than Disputed Claims for which no
objection or request for estimation shall be
required), which day shall be the later of (i) sixty
(60) days after the Effective Date or (ii) sixty (60)
days after the Filing of a proof of Claim for, or
request for payment of, such Claim or such other date
as the Bankruptcy Court may order.
CLASS means a category of holders of Claims or Equity
Interests, as described in Section II hereof.
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COLLATERAL means any property or interest in property of the
Debtors' Estates subject to a Lien to secure the
payment or performance of a Claim, which Lien is not
subject to avoidance under the Bankruptcy Code or
otherwise invalid under the Bankruptcy Code or
applicable law.
CONFIRMATION DATE means the date on which the Clerk of the Bankruptcy
Court enters the Confirmation Order on the docket of
the Bankruptcy Court.
CONFIRMATION HEARING means the hearing to consider confirmation of this
Plan pursuant to section 1128 of the Bankruptcy Code,
as it may be adjourned or continued from time to
time.
CONFIRMATION ORDER means the order entered by the Bankruptcy Court
confirming this Plan pursuant to section 1129 of the
Bankruptcy Code.
CREDITORS' COMMITTEE means the statutory committee of unsecured creditors
appointed in the Chapter 11 Cases pursuant to section
1102 of the Bankruptcy Code, as it may be constituted
from time to time.
DEBTORS means collectively ICH, Sybra and Sybra Conn.
DEBTORS IN POSSESSION means the Debtors in their capacity as debtors in
possession in the Chapter 11 Cases pursuant to
sections 1107(a) and 1108 of the Bankruptcy Code.
DISCLOSURE STATEMENT means the written disclosure statement that relates
to this Plan, as approved by the Bankruptcy Court
pursuant to section 1125 of the Bankruptcy Code, as
such disclosure statement may be amended, modified or
supplemented from time to time.
DISCLOSURE STATEMENT means the order dated October 24, 2002, approving,
APPROVAL ORDER among other things, the Disclosure Statement.
DISPUTED means with respect to any Claim, including any
Administrative Claim, which is not an Allowed Claim
pursuant to this Plan, a Final Order or a settlement
stipulation, and
(i) if no proof of Claim or request for payment
of an Administrative Claim has been filed by the
applicable Bar Date: (a) a Claim that has been or
hereafter is listed on the Schedules as disputed,
contingent or unliquidated; or (b) a Claim that has
been or hereafter is listed on the Schedules as other
than disputed, contingent or unliquidated, but as to
which the Debtors, Reorganized Debtors, the ICH Plan
Administrator or any other party in interest has
interposed a timely objection
6
or request for estimation in accordance with this
Plan, the Bankruptcy Code and the Bankruptcy Rules by
the Claims Objection Deadline or, with respect to
Administrative Claims, the deadline set forth in
Section III.B of this Plan, as applicable, which
objection or request for estimation has not been
withdrawn or determined by a Final Order; or
(ii) if a proof of Claim or request for payment
of an Administrative Claim has been filed by the
applicable Bar Date: (a) a Claim for which no
corresponding Claim has been or hereafter is listed
on the Schedules; (b) a Claim for which a
corresponding Claim has been or hereafter is listed
on the Schedules as other than disputed, contingent
or unliquidated, but the nature or amount of the
Claim as asserted in the proof of Claim varies from
the nature or amount of such Claim as listed on the
Schedules; (c) a Claim for which a corresponding
Claim has been or hereafter is listed on the
Schedules as disputed, contingent or unliquidated; or
(d) a Claim or request for payment of an
Administrative Claim for which a timely objection or
request for estimation is interposed by the Debtors,
Reorganized Debtors, the ICH Plan Administrator or
any other party in interest in accordance with this
Plan, the Bankruptcy Code and the Bankruptcy Rules by
the Claims Objection Deadline or, with respect to
Administrative Claims, the deadline set forth in
Section III.B hereof, as applicable, which objection
or request for estimation has not been withdrawn or
determined by a Final Order. A Claim of the type
listed in clauses (a) through (c) of this paragraph
(ii) shall no longer be considered a Disputed Claim
and shall be deemed Allowed if no objection or
request for estimation has been filed by the Claims
Objection Deadline.
DISPUTED CLAIMS means the reserves of Cash established and maintained
RESERVES by each of Reorganized ICH, Reorganized Sybra and
Reorganized Sybra Conn. for holders of Disputed
Claims pursuant to Section IX.C.1(d) hereof.
DRECHSLER means Robert H. Drechsler, Co-Chairman and Co-CEO of
the Debtors.
DRECHSLER EMPLOYMENT means that Second Amended and Restated Employment
AGREEMENT Agreement dated September 1, 1999 with ICH and its
subsidiaries, as further amended and modified.
EFFECTIVE DATE means the first Business Day on which all of the
conditions specified in Section XIII.C of this Plan
have been satisfied or waived in accordance with
Section XIII.D of this Plan;
7
PROVIDED, HOWEVER, that if a stay of the Confirmation
Order is in effect on such date, the Effective Date
will be the first Business Day after such stay is no
longer in effect.
EFFECTIVE DATE SYBRA means, at the sole discretion of Triarc, either (a)
CERTIFICATE OF an amended Sybra Certificate of Incorporation filed
INCORPORATION AND BY- with the Secretary of State of the State of Michigan,
LAWS and amended Sybra By-laws adopted, on or before the
Effective Date or (b) a new Sybra Certificate of
Incorporation filed with the Secretary of State of
the State of Delaware, and new Sybra By-laws adopted,
on or before the Effective Date in connection with a
reincorporation of Sybra in Delaware.
EFFECTIVE DATE SYBRA means, at the sole discretion of Triarc, either (a)
CONN. CERTIFICATE OF an amended Sybra Conn. Certificate of Incorporation
INCORPORATION AND filed with the Secretary of State of the State of
BY-LAWS Connecticut, and amended Sybra Conn. By-laws adopted,
on or before the Effective Date or (b) a new Sybra
Conn. Certificate of Incorporation filed with the
Secretary of State of the State of Delaware, and new
Sybra Conn. By-laws adopted, on or before the
Effective Date in connection with a reincorporation
of Sybra Conn. in Delaware.
EQUITY INTEREST means any share of preferred stock or common stock or
other instrument evidencing an ownership interest in
the Debtors, whether or not transferable, and any
option, warrant, or right, contractual or otherwise,
to acquire, sell or subscribe for any such interest.
ESTATES means the estates of ICH, Sybra and Sybra Conn.
FEE CLAIM means an Administrative Claim under section 330(a),
331 or 503 of the Bankruptcy Code for compensation of
a Professional or other entity for services rendered
or expenses incurred in the Chapter 11 Cases on or
prior to the Effective Date (including expenses of
the members of the Creditors' Committee incurred as
members of the Creditors' Committee in discharge of
their duties as such).
FEE ORDER means the order under sections 105(a) and 331 of the
Bankruptcy Code, Establishing Procedures for Interim
Compensation and Reimbursement of Expenses of
Professionals, dated February 27, 2002.
FINAL ORDER means an order or judgment of the Bankruptcy Court,
or other court of competent jurisdiction, as entered
on the docket in the Chapter 11 Cases, the operation
or effect of which has not been stayed, reversed,
vacated or amended, and as to which order or
8
judgment (or any revision, modification, or amendment
thereof) the time to appeal, petition for certiorari,
or seek review or rehearing has expired and as to
which no appeal, petition for certiorari, or petition
for review or rehearing was filed or, if filed,
remains pending.
ICH means ICH Corporation, a Delaware corporation.
ICH ASSETS means (i) the Equity Interests in Sybra held by ICH
(which represent 100% of the ownership interests in
Sybra), (ii) Cash and Cash equivalents, and (iii)
defenses, offsets, claims and Causes of Action
(including any proceeds thereof) related in any way
to the Care Financial Claim or the holders thereof.
The ICH Assets shall also include, at NewCo's sole
discretion, the Equity Interests in Care Financial
held by ICH.
ICH GENERAL UNSECURED means any Claim against ICH that is not a Secured
CLAIM Claim, a Secured Lender Guaranty Claim,
Administrative Claim, Priority Tax Claim, Other
Priority Claim or Care Financial Claim.
ICH GENERAL UNSECURED means $8 million in Cash plus the proceeds of the ICH
DISTRIBUTION Tax Refund less any amounts deposited to the ICH
Operating Reserve pursuant to Section VII.D.4.(a).
ICH GENERAL UNSECURED means an account to be funded by NewCo with $8
FUND million in Cash on the Effective Date for the payment
of the ICH General Unsecured Distribution.
ICH OPERATING RESERVE means the reserve account to be established and
maintained by Reorganized ICH into which NewCo shall
deposit the ICH Plan Administration Amount and into
which Reorganized ICH shall from time to time deposit
Cash to fund, among other things, the expenses of the
ICH Plan Administrator and Reorganized ICH, as set
forth more fully in the ICH Plan Administrator
Agreement.
ICH PLAN ADMINISTRATOR means the person designated by Triarc prior to the
Confirmation Date and approved by the Bankruptcy
Court pursuant to the Confirmation Order to
administer certain provisions of this Plan pertaining
to Reorganized ICH in accordance with the terms of
this Plan and the ICH Plan Administrator Agreement
and to take such other actions as may be authorized
under this Plan and the ICH Plan Administrator
Agreement, and any successor thereto.
ICH PLAN ADMINISTRATOR means the agreement between and among Reorganized
ICH,
9
AGREEMENT NewCo and the ICH Plan Administrator, specifying the
rights, duties and responsibilities of the ICH Plan
Administrator under this Plan, in substantially the
form set forth in the Plan Supplement.
ICH PLAN ADMINISTRATION $150,000 in Cash to be funded to the ICH Operating
AMOUNT Reserve on the Effective Date by NewCo.
ICH PLAN COMMITTEE means a committee comprised of three or fewer holders
of Allowed ICH General Unsecured Claims to be formed
on or before the Effective Date for purposes relating
to Class 5, as outlined in this Plan. The ICH Plan
Committee may be reconstituted from time to time by
order of the Bankruptcy Court.
ICH TAX REFUND means the $449,500 federal tax refund paid to ICH in
or about early October, 2002, less any federal,
state, local or foreign taxes imposed upon receipt of
such refund.
IMPAIRED means, when used with reference to a Claim or Equity
Interest, a Claim or Equity Interest that is Impaired
within the meaning of section 1124 of the Bankruptcy
Code.
INITIAL DISTRIBUTION DATE means the Effective Date or as soon thereafter as
practicable, but no later than thirty (30) days after
the Effective Date.
INTERCOMPANY CLAIM means any Claim held by a Debtor against any other
Debtor.
LIEN has the meaning set forth in section 101 of the
Bankruptcy Code.
NEW FINANCING FACILITY means an unsecured credit facility in an amount of up
to $5 million for each of three (3) years after the
Effective Date to be made or obtained by NewCo (or an
affiliate thereof) for Reorganized Sybra and
Reorganized Sybra Conn. to meet their working capital
requirements and to make payments otherwise required
under the Plan. Repayment of the New Financing
Facility will be guaranteed by Triarc, if required by
the financing source, and will be subject to the
restrictions, if any, in the Secured Loan Documents..
NEWCO means Triarc Restaurant Holdings, LLC, a Delaware
limited liability company and a subsidiary of Triarc.
10
NEWCO PURCHASE AND means the agreement between the Reorganized Debtors
FUNDING AGREEMENT and NewCo, pursuant to which NewCo agrees to purchase
the ICH Assets and satisfy certain funding
requirements of this Plan, in substantially the form
set forth in the Plan Supplement.
ORDINARY COURSE ORDER means that certain Order, dated March 14, 2002,
pursuant to sections 105(a), 327, 328 and 330 of the
Bankruptcy Code Authorizing the Debtors to Employ
Professionals Utilized in the Ordinary Course of
Business.
OTHER PRIORITY CLAIM means a Claim entitled to priority pursuant to
section 507(a) of the Bankruptcy Code (other than
Administrative Claims and Priority Tax Claims).
OTHER SECURED CLAIM means a Secured Claim that is not a Secured Lender
Claim.
PETITION DATE means February 5, 2002, the date on which the Debtors
filed their petitions for relief commencing the
Chapter 11 Cases.
PLAN means this Chapter 11 plan, including the Plan
Supplement and all supplements, appendices and
schedules thereto, as the same may be amended or
modified from time to time.
PLAN SUPPLEMENT means the forms of documents specified in Section
XII.L of this Plan, which shall be filed with the
Bankruptcy Court no later than ten (10) days before
the Voting Deadline.
PRIORITY TAX CLAIM means any unsecured Claim held by a governmental unit
entitled to a priority in right of payment under
section 507(a)(8) of the Bankruptcy Code.
PRO RATA means, at any time, the proportion that the amount of
a Claim in a particular Class bears to the aggregate
amount of all Claims (including Disputed Claims) in
such Class, unless in each case this Plan provides
otherwise.
PROFESSIONAL means (i) any professional employed in the Chapter 11
Cases pursuant to section 327 of the Bankruptcy Code
or otherwise and (ii) any professional or other
entity seeking compensation or reimbursement of
expenses in connection with the Chapter 11 Cases
pursuant to section 503(b)(4) of the Bankruptcy Code.
11
QUARTER means the period beginning on the Effective Date and
ending on the immediately succeeding December 31,
March 31, June 30 or September 30, and each
three-month period thereafter.
QUARTERLY CLASS 5 means, with respect to each Quarterly Distribution
DISTRIBUTION AMOUNT Date, the amount of Available Cash in the ICH General
Unsecured Fund equal to the aggregate Pro Rata shares
of the ICH General Unsecured Distribution to which
holders of Allowed Class 5 ICH General Unsecured
Claims are entitled.
QUARTERLY DISTRIBUTION means the earlier of (i) the twentieth (20th) day
DATE after the end of the Quarter following the Quarter in
which the Effective Date occurs and the twentieth
(20th) day after the end of each subsequent Quarter
or (ii) the day designated by Reorganized ICH,
Reorganized Sybra or Reorganized Sybra Conn. at its
sole discretion.
RECORD DATE means the record date for purposes of making
distributions under this Plan on account of Allowed
Claims, which date shall be the Confirmation Date.
REORGANIZED DEBTORS means the Debtors on and after the Effective Date.
REORGANIZED ICH means ICH on or after the Effective Date.
REORGANIZED SYBRA means Sybra on or after the Effective Date.
REORGANIZED SYBRA CONN. means Sybra Conn. on or after the Effective Date.
RESTRICTED CASH means the Cash segregated (whether physically or
merely on the books and records of Reorganized ICH,
Reorganized Sybra and Reorganized Sybra Conn.) by
Reorganized ICH, Reorganized Sybra and Reorganized
Sybra Conn. in respect of the Disputed Claims
Reserves.
SCHEDULE OF LOAN means the schedule attached hereto as Schedule D,
DOCUMENT MODIFICATION which sets forth the Secured Loan Document
modifications that will be deemed to occur on the
Effective Date.
SCHEDULES means the schedules of assets and liabilities, the
list of holders of Equity Interests and the
statements of financial affairs filed with the
Bankruptcy Court by the Debtors, including any
amendments or supplements thereto.
SECURED CLAIM means a Claim that is secured by a Lien on property
or interests in property, in which the Debtors have
an interest, to the extent
12
of the value as of the Effective Date, or such other
date as is established by the Bankruptcy Court, of
such interest or Lien determined by a Final Order of
the Bankruptcy Court pursuant to section 506 of the
Bankruptcy Code or as otherwise agreed upon in
writing by the Debtors and the holder of such Claim.
SECURED LENDER means any lender listed on Schedule C hereto, and its
successors and assigns, which holds a Secured Claim
or a Secured Lender Guaranty Claim.
SECURED LENDER CLAIM means a Secured Claim that is held by a Secured
Lender.
SECURED LENDER CLAIM means an account to be funded by Reorganized Sybra
FUND with Cash on the Effective Date for the payment of
all non-penalty monetary defaults of scheduled (not
accelerated) pre- and post-Petition Date principal
and interest owed in respect of Secured Lender
Claims.
SECURED LENDER means any guaranty Claim against ICH that is held by
GUARANTY CLAIM a Secured Lender.
SECURED LOAN means with respect to any Secured Lender Claim or
DOCUMENTS Secured Lender Guaranty Claim, any agreement, note,
instrument or similar document giving rise to or
collateralizing such Claim.
SUBSIDIARY GENERAL means any Claim against Sybra or Sybra Conn. that is
UNSECURED CLAIM not a Secured Claim, Administrative Claim, Priority
Tax Claim or Other Priority Claim.
SUBSIDIARY GENERAL means an account to be funded by Reorganized Sybra
UNSECURED CLAIM FUND with Cash on the Effective Date for the payment of
Subsidiary General Unsecured Claims. The amount of
such fund shall be an amount equal to the sum of all
Allowed and Disputed Subsidiary General Unsecured
Claims (excluding any duplicative Claims or Claim
amounts), unless the Bankruptcy Court orders
otherwise.
SYBRA means Sybra, Inc., a Michigan corporation.
SYBRA CONN. means Sybra of Connecticut, Inc., a Connecticut
corporation.
TRIARC means Triarc Companies, Inc., a Delaware corporation.
13
UNCLAIMED DISTRIBUTION means any distribution of Cash under this Plan which
is unclaimed after the earlier to occur of (i) the
later to occur of (x) one year after the relevant
distribution date or (y) six months after the date on
which such claimant's Claim is Allowed.
VOTING DEADLINE means the last day for submitting Ballots to accept
or reject this Plan in accordance with section 1126
of the Bankruptcy Code, as specified in the
Disclosure Statement Approval Order.
B. INTERPRETATION, APPLICATION OF DEFINITIONS AND RULES OF
CONSTRUCTION.
Wherever from the context it appears appropriate, each term
stated in either the singular or the plural shall include both the singular and
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and neuter, such meanings to be applicable to
both the singular and plural forms of the terms defined. Capitalized terms in
this Plan that are not defined herein shall have the same meaning assigned to
such terms by the Bankruptcy Code or Bankruptcy Rules, as the case may be. The
words "herein," "hereof," and "hereunder" and other words of similar import
refer to this Plan as a whole and not to any particular Section or Subsection in
this Plan unless expressly provided otherwise. All gender references shall be
deemed to refer to both genders. The words "includes" and "including" are not
limiting and mean that the things specifically identified are set forth for
purposes of illustration, clarity or specificity and do not in any respect
qualify, characterize or limit the generality of the class within which such
things are included. Captions and headings to sections and exhibits are inserted
for convenience of reference only, are not a part of this Plan, and shall not be
used to interpret this Plan. The rules of construction set forth in section 102
of the Bankruptcy Code shall apply to this Plan. In computing any period of time
prescribed or allowed by this Plan, the provisions of Bankruptcy Rule 9006(a)
shall apply.
II.
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
A. INTRODUCTION.
All Claims and Equity Interests, except Administrative Claims
and Priority Tax Claims, are placed in the Classes set forth below. In
accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims
and Priority Tax Claims have not been classified.
A Claim or Equity Interest is placed in a particular Class
only to the extent that the Claim or Equity Interest falls within the
description of that Class, and is classified in other Classes to the extent that
any portion of the Claim or Equity Interest falls within the description of such
other Classes. A Claim is also placed in a particular Class for the purpose of
receiving distributions pursuant to this Plan only to the extent that such Claim
14
is an Allowed Claim in that Class and such Claim has not been paid, released, or
otherwise settled prior to the Effective Date.
1. UNCLASSIFIED CLAIMS.
(a) Administrative Claims.
(b) Priority Tax Claims.
2. CLASSIFIED CLAIMS.
(a) CLASS 1: OTHER PRIORITY CLAIMS.
(i) "Subclass 1A" consists of all Other Priority
Claims against ICH.
(ii) "Subclass 1B" consists of all Other Priority
Claims against Sybra.
(iii) "Subclass 1C" consists of all Other Priority
Claims against Sybra Conn.
(b) CLASS 2: SECURED LENDER AND SECURED LENDER GUARANTY
CLAIMS.
(i) "Subclass 2A" consists of all Secured Lender
Guaranty Claims against ICH.
(ii) "Subclass 2B" consists of all Secured Lender
Claims against Sybra.
(iii) "Subclass 2C" consists of all Secured Lender
Claims against Sybra Conn.
(c) CLASS 3: OTHER SECURED CLAIMS.
(i) "Subclass 3A" consists of all Other Secured
Claims against ICH.
(ii) "Subclass 3B" consists of all Other Secured
Claims against Sybra.
(iii) "Subclass 3C" consists of all Other Secured
Claims against Sybra Conn.
(d) CLASS 4: CARE FINANCIAL CLAIM.
(i) "Class 4" consists of the Care Financial
Claim against ICH.
15
(e) CLASS 5: ICH GENERAL UNSECURED CLAIMS.
(i) "Class 5" consists of all ICH General
Unsecured Claims.
(f) CLASS 6: SUBSIDIARY GENERAL UNSECURED CLAIMS.
(i) "Subclass 6A" consists of all Subsidiary
General Unsecured Claims against Sybra.
(ii) "Subclass 6B" consists of all Subsidiary
General Unsecured Claims against Sybra Conn.
(g) CLASS 7: EQUITY INTERESTS.
(i) "Subclass 7A" consists of all Equity
Interests in ICH.
(ii) "Subclass 7B" consists of all Equity
Interests in Sybra.
(iii) "Subclass 7C" consists of all Equity
Interests in Sybra Conn.
III.
TREATMENT OF ADMINISTRATIVE
CLAIMS, FEE CLAIMS AND PRIORITY TAX CLAIMS
A. ADMINISTRATIVE CLAIMS.
Except with respect to Administrative Claims that are Fee
Claims, each holder of an Allowed Administrative Claim shall receive (a) Cash in
an amount equal to such Allowed Administrative Claim on the later of the
Effective Date and the date such Administrative Claim becomes an Allowed
Administrative Claim, or as soon thereafter as is practicable or (b) such other
treatment as the Debtors and such holder shall have agreed upon in writing;
provided, however, that Allowed Administrative Claims representing liabilities
incurred in the ordinary course of business by the Debtors in Possession shall
be paid in full and performed by the Reorganized Debtors in the ordinary course
of business in accordance with the terms and subject to the conditions of any
agreements relating thereto.
B. BAR DATE FOR ADMINISTRATIVE CLAIMS.
The Confirmation Order will establish an Administrative Claims
Bar Date for filing Administrative Claims (except for Fee Claims), which date
will be thirty (30) days after the Confirmation Date. Holders of asserted
Administrative Claims, except for
16
Fee Claims, not paid prior to the Confirmation Date shall submit requests for
payment on or before such Administrative Claims Bar Date or forever be barred
from doing so. The notice of Confirmation to be delivered pursuant to Bankruptcy
Rules 3020(c) and 2002(f) will set forth such date and constitute notice of the
Administrative Claims Bar Date. The Reorganized Debtors shall have thirty (30)
days (or such longer period as may be allowed by order of the Bankruptcy Court)
following the Administrative Claims Bar Date to review and object to such
Administrative Claims.
C. FEE CLAIMS.
All requests for compensation or reimbursement of Fee Claims
pursuant to sections 327, 328, 330, 331, 503(b) or 1103 of the Bankruptcy Code
for services rendered to the Debtors prior to the Effective Date shall be filed
and served on the Reorganized Debtors, counsel to the Reorganized Debtors, the
ICH Plan Administrator and such other entities who are designated by the
Bankruptcy Rules, the Confirmation Order or other order of the Court, no later
than thirty (30) days after the Effective Date. Holders of Fee Claims that are
required to file and serve applications for final allowance of their Fee Claims
and that do not file and serve such applications by the required deadline shall
be forever barred from asserting such Claims against the Debtors, Reorganized
Debtors or their respective property, and such Fee Claims shall be deemed
discharged as of the Effective Date. Objections to any Fee Claims must be filed
and served on the Reorganized Debtors and counsel for the Reorganized Debtors
and the requesting party by thirty (30) days (or such longer period as may be
allowed by order of the Court) after the date on which an application for such
Fee Claim was served.
D. PRIORITY TAX CLAIMS.
Except to the extent that a holder of an Allowed Priority Tax
Claim agrees to a different treatment, each holder of an Allowed Priority Tax
Claim shall receive, at the sole option of the Reorganized Debtors (a) Cash in
an amount equal to such Allowed Priority Tax Claim on the later of the Effective
Date and the date such Allowed Priority Tax Claim becomes an Allowed Priority
Tax Claim, or as soon thereafter as practicable, or (b) equal annual Cash
payments in an aggregate amount equal to such Allowed Priority Tax Claim,
together with interest at a fixed annual rate equal to the federal statutory
rate as provided in 26 U.S.C. ss. 6621, over a period through the sixth
anniversary of the date of assessment of such Allowed Priority Tax Claim.
17
IV.
TREATMENT OF
CLAIMS AND EQUITY INTERESTS
A. CLASS 1 - OTHER PRIORITY CLAIMS.
(a) Subclass 1A: Other Priority Claims against ICH.
1. DISTRIBUTIONS. Except to the extent that a
holder of a Subclass 1A Allowed Other Priority Claim shall have agreed in
writing to a different treatment, in full and final satisfaction of such claim,
each holder of a Subclass 1A Allowed Other Priority Claim shall receive payment
in an amount equal to such Allowed Claim in full in Cash on the later of the
Initial Distribution Date and the date when such Other Priority Claim becomes a
Subclass 1A Allowed Claim, or as soon thereafter as practicable .
2. IMPAIRMENT AND VOTING. Subclass 1A shall be
unimpaired under this Plan. Holders of Allowed Other Priority Claims in Subclass
1A are presumed to accept this Plan and are not entitled to vote to accept or
reject this Plan.
(b) Subclass 1B: Other Priority Claims against Sybra.
1. DISTRIBUTIONS. Except to the extent that a
holder of a Subclass 1B Allowed Other Priority Claim shall have agreed in
writing to a different treatment, in full and final satisfaction of such claim,
each holder of a Subclass 1B Allowed Other Priority Claim shall receive payment
in an amount equal to such Allowed Claim in full in Cash on the later of the
Initial Distribution Date and the date when such Other Priority Claim becomes a
Subclass 1B Allowed Claim, or as soon thereafter as practicable.
2. IMPAIRMENT AND VOTING. Subclass 1B shall be
unimpaired under this Plan. Holders of Allowed Other Priority Claims in Subclass
1B are presumed to accept this Plan and are not entitled to vote to accept or
reject this Plan.
(c) Subclass 1C: Other Priority Claims against Sybra
Conn.
1. DISTRIBUTIONS. Except to the extent that a
holder of a Subclass 1C Allowed Other Priority Claim shall have agreed in
writing to a different treatment, in full and final satisfaction of such claim,
each holder of a Subclass 1C Allowed Other Priority Claim shall receive payment
in an amount equal to such Allowed Claim in full in Cash on the later of the
Initial Distribution Date and the date when such Other Priority Claim becomes a
Subclass 1C Allowed Claim, or as soon thereafter as practicable.
2. IMPAIRMENT AND VOTING. Subclass 1C shall be
unimpaired under this Plan. Holders of Allowed Other Priority Claims in Subclass
1C are presumed to accept this Plan and are not entitled to vote to accept or
reject this Plan.
18
B. CLASS 2 - SECURED LENDER GUARANTY AND SECURED LENDER CLAIMS.
(a) Subclass 2A: Secured Lender Guaranty Claims against
ICH.
1. DISTRIBUTIONS. In full and final
satisfaction of each Allowed Subclass 2A Secured Lender Guaranty Claim, the
related Allowed Secured Lender Claim shall receive the treatment provided for in
Subclass 2B or 2C, as applicable, and each holder of a Secured Lender Guaranty
Claim shall be deemed to agree to the modifications with respect to its guaranty
as provided under the Schedule of Loan Document Modifications.
2. IMPAIRMENT AND VOTING. Subclass 2A is
Impaired under this Plan. The holders of Allowed Secured Lender Guaranty Claims
in Subclass 2A are entitled to vote to accept or reject this Plan.
(b) Subclass 2B: Secured Lender Claims Against Sybra.
1. DISTRIBUTIONS. In full and final
satisfaction of each Allowed Subclass 2B Secured Lender Claim, Reorganized Sybra
shall (i) on the Initial Distribution Date, pay in Cash an amount equal to all
non-penalty monetary defaults of scheduled (not accelerated) pre- and
post-Petition Date principal and interest owed with respect to such Allowed
Subclass 2B Secured Lender Claim, (ii) on the Initial Distribution Date or as
soon thereafter as is practicable, pay in Cash any professional fees and
expenses that may be owed under the Secured Loan Documents relating to such
Secured Lender Claim, and (iii) on and after the Effective Date, perform all
obligations under the Secured Loan Documents relating to such Secured Lender
Claim; provided, however, that on the Effective Date (x) each Secured Loan
Document relating to such Secured Lender Claim shall be deemed to be modified as
set forth in the Schedule of Loan Document Modifications and (y) any default
alleged to exist in existence on or before the Effective Date under any Secured
Loan Document relating to such Secured Lender Claim or arising as a consequence
of the actions and transactions effected by this Plan shall be deemed to be
waived irrevocably and unconditionally.
2. IMPAIRMENT AND VOTING. Subclass 2B is
Impaired under this Plan. The holders of Allowed Secured Lender Claims in
Subclass 2B are entitled to vote to accept or reject this Plan.
(c) Subclass 2C: Secured Lender Claims against Sybra
Conn.
1. DISTRIBUTIONS. In full and final
satisfaction of each Allowed Subclass 2C Secured Lender Claim, Reorganized Sybra
Conn. shall (i) on the Initial Distribution Date, pay in Cash an amount equal to
all non-penalty monetary defaults of scheduled (not accelerated) pre- and
post-Petition Date principal and interest owed with respect to such Allowed
Subclass 2C Secured Lender Claim, (ii) on the Initial Distribution Date or as
soon thereafter as is practicable, pay in Cash any professional fees and
expenses that may be owed under the Secured Loan Documents relating to such
Secured Lender Claim, and (iii) on and after the Effective Date, perform all
obligations
19
under the Secured Loan Documents relating to such Secured Lender Claim;
PROVIDED, HOWEVER, that on the Effective Date (x) each Secured Loan Document
relating to such Secured Lender Claim shall be deemed to be modified as set
forth in the Schedule of Loan Document Modifications (y) any default alleged to
exist on or before the Effective Date under any Secured Loan Document relating
to such Secured Lender Claim or arising as a consequence of the actions and
transactions effected by this Plan shall be deemed to be waived irrevocably and
unconditionally.
2. IMPAIRMENT AND VOTING. Subclass 2C is
Impaired under this Plan. The holders of Allowed Secured Lender Claims in
Subclass 2C are entitled to vote to accept or reject this Plan.
C. Class 3 - Other Secured Claims.
(a) Subclass 3A: Other Secured Claims against ICH.
1. DISTRIBUTIONS. Except to the extent that a
holder of a Subclass 3A Allowed Other Secured Claim shall have agreed in writing
to a different treatment, at the sole option of the Debtors, as applicable, in
full and final satisfaction of such Claim, (i) each Subclass 3A Allowed Other
Secured Claim shall be reinstated and rendered unimpaired in accordance with
section 1124(2) of the Bankruptcy Code, notwithstanding any contractual
provision or applicable nonbankruptcy law that entitles the holder of a Subclass
3A Allowed Other Secured Claim to demand or receive payment of such Subclass 3A
Allowed Other Secured Claim prior to the stated maturity of such Subclass 3A
Allowed Other Secured Claim from and after the occurrence of a default, or (ii)
each holder of a Subclass 3A Allowed Other Secured Claim shall receive Cash in
an amount equal to such Subclass 3A Allowed Other Secured Claim, including any
interest on such Subclass 3A Allowed Other Secured Claim required to be paid
pursuant to section 506(b) of the Bankruptcy Code, on the later of the Initial
Distribution Date and the date such Subclass 3A Allowed Other Secured Claim
becomes an Allowed Other Secured Claim, or as soon thereafter as is practicable,
or (iii) each holder of a Subclass 3A Allowed Other Secured Claim shall receive
the Collateral securing its Subclass 3A Allowed Other Secured Claim and any
interest on such Subclass 3A Allowed Other Secured Claim required to be paid
pursuant to section 506(b) of the Bankruptcy Code, in full and complete
satisfaction of such Subclass 3A Allowed Other Secured Claim, on the later of
the Initial Distribution Date and the date such Subclass 3A Allowed Other
Secured Claim becomes a Subclass 3A Allowed Other Secured Claim, or as soon
thereafter as is practicable.
2. IMPAIRMENT AND VOTING. Subclass 3A is
unimpaired under this Plan. The holders of Allowed Claims in Subclass 3A are
presumed to accept this Plan and are not entitled to vote to accept or reject
this Plan.
(b) Subclass 3B: Other Secured Claims against Sybra.
1. DISTRIBUTIONS. Except to the extent that a
holder of a Subclass 3B Allowed Other Secured Claim shall have agreed in writing
to a different
20
treatment, at the sole option of the Debtors, as applicable, in full and final
satisfaction of such Claim, (i) each Subclass 3B Allowed Other Secured Claim
shall be reinstated and rendered unimpaired in accordance with section 1124(2)
of the Bankruptcy Code, notwithstanding any contractual provision or applicable
nonbankruptcy law that entitles the holder of a Subclass 3B Allowed Other
Secured Claim to demand or receive payment of such Subclass 3B Allowed Other
Secured Claim prior to the stated maturity of such Subclass 3B Allowed Other
Secured Claim from and after the occurrence of a default, or (ii) each holder of
a Subclass 3B Allowed Other Secured Claim shall receive Cash in an amount equal
to such Subclass 3B Allowed Other Secured Claim, including any interest on such
Subclass 3B Allowed Other Secured Claim required to be paid pursuant to section
506(b) of the Bankruptcy Code, on the later of the Initial Distribution Date and
the date such Subclass 3B Allowed Other Secured Claim becomes an Allowed Other
Secured Claim, or as soon thereafter as is practicable, or (iii) each holder of
a Subclass 3B Allowed Other Secured Claim shall receive the Collateral securing
its Subclass 3B Allowed Other Secured Claim and any interest on such Subclass 3B
Allowed Other Secured Claim required to be paid pursuant to section 506(b) of
the Bankruptcy Code, in full and complete satisfaction of such Subclass 3B
Allowed Other Secured Claim, on the later of the Initial Distribution Date and
the date such Subclass 3B Allowed Other Secured Claim becomes a Subclass 3B
Allowed Other Secured Claim, or as soon thereafter as is practicable.
2. IMPAIRMENT AND VOTING. Subclass 3B is
unimpaired under this Plan. The holders of Allowed Claims in Subclass 3B are
presumed to accept this Plan and are not entitled to vote to accept or reject
this Plan.
(c) Subclass 3C: Other Secured Claims against Sybra Conn.
1. DISTRIBUTIONS. Except to the extent that a
holder of a Subclass 3C Allowed Other Secured Claim shall have agreed in writing
to a different treatment, at the sole option of the Debtors, as applicable, in
full and final satisfaction of such Claim, (i) each Subclass 3C Allowed Other
Secured Claim shall be reinstated and rendered unimpaired in accordance with
section 1124(2) of the Bankruptcy Code, notwithstanding any contractual
provision or applicable nonbankruptcy law that entitles the holder of a Subclass
3C Allowed Other Secured Claim to demand or receive payment of such Subclass 3C
Allowed Other Secured Claim prior to the stated maturity of such Subclass 3C
Allowed Other Secured Claim from and after the occurrence of a default, or (ii)
each holder of a Subclass 3C Allowed Other Secured Claim shall receive Cash in
an amount equal to such Subclass 3C Allowed Other Secured Claim, including any
interest on such Subclass 3C Allowed Other Secured Claim required to be paid
pursuant to section 506(b) of the Bankruptcy Code, on the later of the Initial
Distribution Date and the date such Subclass 3C Allowed Other Secured Claim
becomes an Allowed Other Secured Claim, or as soon thereafter as is practicable,
or (iii) each holder of a Subclass 3C Allowed Other Secured Claim shall receive
the Collateral securing its Subclass 3C Allowed Other Secured Claim and any
interest on such Subclass 3C Allowed Other Secured Claim required to be paid
pursuant to section 506(b) of the Bankruptcy Code, in full and complete
satisfaction of such Subclass 3C Allowed Other
21
Secured Claim, on the later of the Initial Distribution Date and the date such
Subclass 3C Allowed Other Secured Claim becomes a Subclass 3C Allowed Other
Secured Claim, or as soon thereafter as is practicable.
2. IMPAIRMENT AND VOTING. Subclass 3C is
unimpaired under this Plan. The holders of Allowed Claims in Subclass 3C are
presumed to accept this Plan and are not entitled to vote to accept or reject
this Plan.
D. CLASS 4 - CARE FINANCIAL CLAIM AGAINST ICH.
1. DISTRIBUTIONS. In full and final
satisfaction of the Care Financial Claim, on the Effective Date, (i) Reorganized
Sybra shall assume and discharge as and when due the Care Financial Retirees
Liability and (ii) the Care Intercompany Payables shall be offset against the
Care Financial Claim and deemed to be satisfied in full.
2. IMPAIRMENT AND VOTING. Class 4 is Impaired
under this Plan. The holder of the Allowed Care Financial Claim is entitled to
vote to accept or reject this Plan.
E. CLASS 5 - ICH GENERAL UNSECURED CLAIMS.
1. DISTRIBUTIONS. On, or as soon as reasonably
practicable after (i) the Initial Distribution Date, if such Class 5 Claim is an
Allowed ICH General Unsecured Claim as of the Effective Date, or (ii) the first
Quarterly Distribution Date after the date a Class 5 Claim becomes an Allowed
ICH General Unsecured Claim, each holder of an Allowed Class 5 Claim shall
receive its Pro Rata share of the ICH General Unsecured Distribution.
2. IMPAIRMENT AND VOTING. Class 5 is Impaired
under this Plan. The holders of Allowed ICH General Unsecured Claims in Class 5
are entitled to vote to accept or reject this Plan.
F. CLASS 6 - SUBSIDIARY GENERAL UNSECURED CLAIMS.
(a) Subclass 6A: General Unsecured Claims against Sybra.
1. DISTRIBUTIONS. On the Initial Distribution
Date, or as soon thereafter as practicable, or upon such later date when such
Subclass 6A Claim becomes an Allowed Subclass 6A Claim, in full and final
satisfaction of such claim, at the sole option of Sybra (i) each holder of an
Allowed Subclass 6A Claim will receive payment in full in Cash of its Allowed
Subclass 6A Claim, including post-petition interest at the applicable rate (as
provided under contract, as agreed or as determined by the Bankruptcy Court) to
render such Allowed Subclass 6A Claim unimpaired, or (ii) each Allowed Subclass
6A Claim will be reinstated by curing all outstanding defaults with all legal,
equitable and contractual rights remaining unaltered.
22
2. IMPAIRMENT AND VOTING. Subclass 6A is
unimpaired under this Plan. The holders of Allowed Claims in Subclass 6A are
presumed to accept this Plan and are not entitled to vote to accept or reject
this Plan.
(b) Subclass 6B: General Unsecured Claims against Sybra
Conn.
1. DISTRIBUTIONS. On the Initial Distribution
Date, or as soon thereafter as practicable, or upon such later date when such
Subclass 6B Claim becomes an Allowed Subclass 6B Claim, in full and final
satisfaction of such claim, at the sole option of Sybra Conn. (i) each holder of
an Allowed Subclass 6B Claim will receive payment in full in Cash of its Allowed
Subclass 6B Claim, including post-petition interest at the applicable rate (as
provided under contract, as agreed or as determined by the Bankruptcy Court) to
render such Allowed Subclass 6B Claim unimpaired, or (ii) each Allowed Subclass
6B Claim will be reinstated by curing all outstanding defaults with all legal,
equitable and contractual rights remaining unaltered.
2. IMPAIRMENT AND VOTING. Subclass 6B is
unimpaired under this Plan. The holders of Allowed Claims in Subclass 6B are
presumed to accept this Plan and are not entitled to vote to accept or reject
this Plan.
G. CLASS 7 EQUITY INTERESTS.
(a) Subclass 7A: Equity Interests in ICH.
1. DISTRIBUTIONS. The holders of Subclass 7A
Equity Interests in ICH shall receive no distributions whatsoever on account of
such Equity Interests. All Subclass 7A Equity Interests shall be canceled on the
Effective Date. If the holders of Allowed Class 5 Claims receive full payment of
their Claims and Cash remains in the ICH General Unsecured Fund, that Cash shall
be distributed to holders of Allowed ICH Equity Interests.
2. IMPAIRMENT AND VOTING. Subclass 7A is
Impaired under this Plan. As the holders of Subclass 7A Equity Interests in ICH
are receiving no distributions they are conclusively presumed to have rejected
this Plan and are not entitled to vote to accept or reject this Plan.
(b) Subclass 7B: Equity Interests in Sybra.
1. DISTRIBUTIONS. The Equity Interests in Sybra
will be transferred to NewCo pursuant to this Plan and the NewCo Purchase and
Funding Agreement.
2. IMPAIRMENT AND VOTING. Subclass 7B is
unimpaired under this Plan. The holders of Allowed Equity Interests in Subclass
7B are presumed to accept this Plan and are not entitled to vote to accept or
reject this Plan.
23
(c) Subclass 7C: Equity Interests in Sybra Conn.
1. DISTRIBUTIONS. The Equity Interests in Sybra
Conn. will not be affected by the Plan.
2. IMPAIRMENT AND VOTING. Subclass 7C is
unimpaired under this Plan. The holders of Allowed Equity Interests in Subclass
7C are presumed to accept this Plan and are not entitled to vote to accept or
reject this Plan.
H. SPECIAL PROVISION REGARDING UNIMPAIRED CLAIMS.
Except as otherwise provided in this Plan, nothing shall
affect the Debtors' rights and defenses, both legal and equitable, with respect
to any unimpaired Claims, including, but not limited to, all rights with respect
to legal and equitable defenses to setoffs or recoupments against unimpaired
Claims. Such rights and defenses shall vest in the Reorganized Debtors.
I. SPECIAL PROVISIONS REGARDING SECURED LENDER CLAIMS.
1. AMOUNTS. No later than the Voting Deadline, Triarc
shall file with the Bankruptcy Court a schedule setting forth the proposed
Allowed amount of each Secured Lender Claim. Such proposed amounts shall be
based upon the Debtors' books and records and reflect with respect to each
Secured Lender: (a) any unpaid prepetition principal or interest; (b)
postpetition unamortized principal through December 31, 2002; and (c) the
remaining principal loan balance on December 31, 2002 after payment of items (a)
and (b). If any Secured Lender believes that the proposed Allowed amount is not
accurate, it should contract Triarc to resolve the dispute.
2. LIENS. On the Effective Date, Reorganized Sybra and
Reorganized Sybra Conn. shall be deemed to reaffirm the Liens (including the
priority thereof) of the Secured Lenders with respect to the Secured Lender
Claims as they existed on the Petition Date.
3. FEES. Secured Lenders seeking payment of professional
fees in accordance with the Secured Loan Documents shall request payment of such
fees and expenses in such manner as is acceptable to the Bankruptcy Court.
J. SPECIAL PROVISION REGARDING BICKS AND DRECHSLER.
NewCo, Bicks and Drechsler have executed the Bicks/Drechsler
Letter Agreement, which provides for, among other things, the satisfaction and
release of any and all Claims of Bicks and Drechsler, arising under the Bicks
Employment Agreement or the Drechsler Employment Agreement or otherwise, against
the Debtors and Care Financial on the terms and for the consideration set forth
in the Bicks/Drechsler Letter Agreement. The Cash consideration to be paid to
Bicks and Drechsler shall not be paid from, or result in a reduction of, the ICH
General Unsecured Fund.
24
V.
PROVISIONS REGARDING
VOTING UNDER THIS PLAN
A. CLASSES ENTITLED TO VOTE.
Each Impaired Class of Claims that will (or may) receive or
retain property or any interest in property under this Plan shall be entitled to
vote to accept or reject this Plan. By operation of law, each unimpaired Class
of Claims is deemed to have accepted this Plan and, therefore, is not entitled
to vote to accept or reject this Plan. Because holders of Subclass 7A Equity
Interests of ICH are not entitled to receive or retain any property under this
Plan, Subclass 7A is presumed to have rejected this Plan and, therefore, is not
entitled to vote on this Plan.
B. ACCEPTANCE BY IMPAIRED CLASSES.
An Impaired Class of Claims shall have accepted this Plan if
(a) the holders (other than any holder designated under section 1126(e) of the
Bankruptcy Code) of at least two-thirds (2/3) in amount of the Allowed Claims
actually voting in such Class have voted to accept this Plan and (b) the holders
(other than any holder designated under section 1126(e) of the Bankruptcy Code)
of more than one-half (1/2) in number of the Allowed Claims actually voting in
such Class have voted to accept this Plan.
C. CRAMDOWN.
If any Impaired Class of Claims or Equity Interests entitled
to vote shall not accept this Plan by the requisite statutory majorities
provided in sections 1126(c) or 1126(d) of the Bankruptcy Code, as applicable,
Triarc reserves the right to have the Court confirm the Plan under section
1129(b) of the Bankruptcy Code. If any holder of a Class 2 Claim votes against
this Plan, this Plan shall be deemed amended to provide for the separate
classification of such Claim; the vote received from a holder of such Claim,
which will be placed in such new Class, shall be deemed to be the vote of such
Class. With respect to such new Class of Claims, Triarc reserves the right, as
it does with respect to any rejecting Class of Claims, to have the Bankruptcy
Court confirm this Plan under section 1129(b) of the Bankruptcy Code.
VI.
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
A. ASSUMPTION OR REJECTION OF CONTRACTS AND LEASES.
On or before November 8, 2002, Triarc will file Schedule A, a
list of those executory contracts it will assume, and Schedule B, a list of
those executory contracts it will reject. Except as otherwise provided in this
Plan, or in any contract, instrument, release or other agreement or document
entered into in connection with this Plan, (i) each of the executory contracts
and unexpired leases on Schedule A hereto are hereby assumed
25
by the Reorganized Debtor party thereto, (ii) each of the executory contracts
and unexpired leases on Schedule B hereto are hereby rejected by the Reorganized
Debtors, in each case effective on and subject to the occurrence of the
Effective Date. The Reorganized Debtors shall have thirty (30) days after the
Effective Date to assume or reject any remaining executory contracts, otherwise
such remaining executory contracts will be deemed rejected; PROVIDED, HOWEVER,
that nothing contained in this Section VI shall constitute an admission by the
Debtors that such contract or lease is an executory contract or unexpired lease
or that the Debtors, their successors and assigns have any liability thereunder.
All Claims for damages arising from the rejection of executory contracts or
unexpired leases must be filed with the Court in accordance with the terms of
the order authorizing such rejection. Any Claims not filed within such time will
be forever barred from assertion against the Debtors, their Estates and the
Reorganized Debtors. The Reorganized Debtors, except as otherwise agreed by the
parties, will cure any and all undisputed defaults within 60 days of the
Effective Date under any executory contract, unexpired lease or employment
agreement assumed pursuant to this Plan in accordance with section 365 of the
Bankruptcy Code. All disputed defaults that are required to be cured shall be
cured either within 30 days of the entry of a Final Order determining the
amount, if any, of the Debtors or the Reorganized Debtors' liability with
respect thereto, or as may otherwise be agreed to by the parties. The
Confirmation Order shall constitute an order of the Bankruptcy Court approving
the rejections and assumptions described in this Section VI, pursuant to section
365 of the Bankruptcy Code, as of the Effective Date. Triarc is rejecting the
employment/severance agreements of John Bicks and Robert Drechsler. Triarc
currently anticipates assuming all remaining executory contracts and unexpired
leases, including, without limitation, the obligations to Coca-Cola Fountain
USA, Inc., with respect to obligations for advances made and capital lease
obligations. HOLDERS OF CLAIMS UNDER EXECUTORY CONTRACTS OR UNEXPIRED LEASES
THAT ARE ASSUMED PURSUANT TO THIS PLAN ARE UNIMPAIRED AND ARE NOT ENTITLED TO
VOTE TO ACCEPT OR REJECT THIS PLAN.
B. BAR TO REJECTION DAMAGES.
If the rejection of an executory contract or unexpired lease
pursuant to Section VI.A above gives rise to a Claim by the other party or
parties to such contract or lease, such Claim shall be forever barred and shall
not be enforceable against the Debtors or their Estates, Reorganized Debtors,
the ICH Plan Administrator or their respective successors or properties unless a
proof of Claim is filed and served on the Reorganized Debtors and counsel for
the Reorganized Debtors on the date that is the later of (i) the Bar Date
established in the Chapter 11 Cases or (ii) thirty (30) days from the date upon
which the Bankruptcy Court enters an order authorizing the Reorganized Debtors
to reject any such executory contract or unexpired lease.
26
VII.
PROVISIONS REGARDING CORPORATE
GOVERNANCE AND MANAGEMENT OF REORGANIZED ICH
A. CONTINUED CORPORATE EXISTENCE; DISSOLUTION OF REORGANIZED ICH.
ICH shall continue to exist as Reorganized ICH after the
Effective Date in accordance with the laws of the State of Delaware and pursuant
to its Amended Certificate of Incorporation and By-laws, for the limited purpose
of liquidating and distributing all of the assets of ICH's Estate and its
remaining subsidiaries. As soon as practicable after the ICH Plan Administrator
exhausts the assets of ICH's Estate by making the final distribution under this
Plan, the ICH Plan Administrator shall (i) effectuate the dissolution of
Reorganized ICH in accordance with the laws of the State of Delaware and (ii)
resign as the sole officer and sole director of ICH.
B. CERTIFICATE OF INCORPORATION AND BY-LAWS.
The certificate of incorporation and by-laws of ICH shall be
amended as necessary to satisfy the provisions of this Plan and the Bankruptcy
Code. The certificate of incorporation of Reorganized ICH shall be amended to,
among other things: (i) authorize one (1) share of new common stock, $0.01 par
value per share, (ii) include, pursuant to section 1123(a)(6) of the Bankruptcy
Code, a provision prohibiting the issuance of non-voting equity securities, and
(iii) limit the activities of Reorganized ICH to matters related to the
implementation of this Plan. The forms of the documents relating to the Amended
ICH Certificate of Incorporation and By-laws shall be contained in the Plan
Supplement and shall be filed with the Bankruptcy Court as described in Section
XII.K of this Plan. ICH shall execute the amended certificate of incorporation
and by-laws of ICH, without the requirement of any action by the directors or
stockholders of ICH or Reorganized ICH.
C. DIRECTORS AND OFFICERS; EFFECTUATING DOCUMENTS; FURTHER
TRANSACTIONS.
On the Effective Date, the existing officers and directors of
ICH shall be deemed to have resigned as of such date. From and after the
Effective Date, the ICH Plan Administrator shall serve as the sole officer and
sole director of Reorganized ICH. The ICH Plan Administrator shall be authorized
to execute, deliver, file or record such documents, instruments, releases and
other agreements and to take such actions as may be necessary or appropriate to
effectuate and further evidence the terms and conditions of this Plan.
D. THE ICH PLAN ADMINISTRATOR.
1. APPOINTMENT. From and after the Effective Date, the
natural or artificial person to be identified in the ICH Plan Administrator
Agreement shall serve as the ICH Plan Administrator pursuant to the ICH Plan
Administrator Agreement and this Plan, until his death, resignation or discharge
and the appointment of a successor ICH
27
Plan Administrator in accordance with the terms of the ICH Plan Administrator
Agreement.
2. RIGHTS, POWERS AND DUTIES OF REORGANIZED ICH AND THE
ICH PLAN ADMINISTRATOR. Reorganized ICH shall retain and have all the rights,
powers and duties necessary to carry out its responsibilities under this Plan.
Such rights, powers and duties, which shall be exercisable by the ICH Plan
Administrator on behalf of Reorganized ICH pursuant to this Plan and the ICH
Plan Administrator Agreement, shall include, among other things:
(a) investing Reorganized ICH's Cash, including,
but not limited to, the Cash held in ICH's Claims Payment Funds in (i) direct
obligations of the United States of America or obligations of any agency or
instrumentality thereof which are guaranteed by the full faith and credit of the
United States of America, (ii) money market deposit accounts, checking accounts,
savings accounts or certificates of deposit, or other time deposit accounts that
are issued by a commercial bank or savings institution organized under the laws
of the United States of America or any state thereof, or (iii) any other
investments that may be permissible under (a) section 345 of the Bankruptcy Code
or (b) any Final Order of the Bankruptcy Court entered in the Chapter 11 Cases;
(b) calculating and paying all distributions to
be made under this Plan, the ICH Plan Administrator Agreement and other orders
of the Bankruptcy Court to holders of Allowed Administrative Claims of ICH,
Allowed Priority Tax Claims of ICH, Allowed Other Priority Claims of ICH and
Allowed ICH General Unsecured Claims;
(c) employing, supervising and reasonably
compensating Professionals retained to represent the interests of and to serve
on behalf of Reorganized ICH;
(d) making and filing tax returns or required
public filings for ICH or Reorganized ICH;
(e) objecting to Claims or Equity Interests
filed against ICH's Estate on any appropriate basis;
(f) seeking estimation of contingent or
unliquidated claims under section 502(c) of the Bankruptcy Code;
(g) seeking determination of any tax liability
under section 505 of the Bankruptcy Code;
(h) prosecuting avoidance actions under sections
544, 545, 547, 548, 549 and 553 of the Bankruptcy Code;
(i) prosecuting turnover actions under sections
542 and 543 of the Bankruptcy Code;
28
(j) prosecuting any other Claims or Causes of
Action of ICH;
(k) dissolving Reorganized ICH;
(l) exercising all powers and rights, and taking
all actions, contemplated by or provided for in the ICH Plan Administrator
Agreement;
(m) appointing and reasonably compensating any
agents or representatives to carry out the duties of the ICH Plan Administrator;
and
(n) taking any and all other actions necessary
or appropriate to implement or consummate this Plan and the provisions of;
PROVIDED, HOWEVER, that the aforementioned rights, powers and duties of
Reorganized ICH shall be subject to the ICH Plan Administrator Agreement and the
rights of NewCo set forth at Section IX.C.2.
3. ICH PLAN COMMITTEE. On or before the Effective Date,
the Creditors' Committee shall appoint the members of the ICH Plan Committee,
subject to Triarc's consent, such consent not to be unreasonably withheld.
Subject to the rights of NewCo set forth at Section IX.C.2, the ICH Plan
Administrator shall pursue the above rights, powers and duties under subclauses
(e) through (j) of Section VII.D.2 above with respect to or affecting Class 5
only with the consent of the ICH Plan Committee. If a dispute arises between the
ICH Plan Administrator and the ICH Plan Committee concerning such rights, powers
and duties of the ICH Plan Administrator and the parties are unable to resolve
the dispute amongst themselves, the ICH Plan Administrator shall bring such
dispute before the Bankruptcy Court for resolution. If the ICH Plan Committee
retains counsel to resolve such a dispute with the ICH Plan Administrator, the
ICH Plan Committee may make application to the Bankruptcy Court for the
reimbursement from the ICH General Unsecured Fun for any legal fees incurred in
litigation such dispute before the Bankruptcy Court. The reasonable
out-of-pocket expenses (e.g., telephone, fax, post, travel), if any, incurred by
members of the ICH Plan Committee in furtherance of their obligations hereunder
may be reimbursed from the ICH Operating Reserve.
4. COMPENSATION OF THE ICH PLAN ADMINISTRATOR. The ICH
Plan Administrator shall be compensated from the ICH Operating Reserve pursuant
to the terms of the ICH Plan Administrator Agreement. Any professionals retained
by the ICH Plan Administrator shall be entitled to reasonable compensation for
services rendered and reimbursement of expenses incurred from the ICH Operating
Reserve. The payment of the fees and expenses of the ICH Plan Administrator and
his retained professionals shall be made in the ordinary course of business and
shall not be subject to the approval of the Bankruptcy Court.
(a) FUNDING OF ICH OPERATING RESERVE.
On the Effective Date, as provided under the NewCo
Purchase and Funding Agreement, NewCo shall fund the ICH Operating Reserve with
the ICH Plan
29
Administration Amount. Neither NewCo, Reorganized Sybra nor Reorganized Sybra
Conn. shall have any further obligation to fund the ICH Operating Reserve or to
pay for any expenses of Reorganized ICH or the ICH Plan Administrator, except as
may be required under Section IX.C.2(b) hereof. Any additional funding for the
ICH Operating Reserve shall come from the ICH General Unsecured Fund with the
consent of the ICH Plan Committee and NewCo, such consent not to be unreasonably
withheld.
5. INDEMNIFICATION. Reorganized ICH shall indemnify and
hold harmless the ICH Plan Administrator and his Professionals, the ICH Plan
Committee and its members or designees, or any duly designated agents or
representatives of any of thereof or any of their respective employees (in their
capacities as such), from and against and with respect to any and all
liabilities, losses, damages, claims, costs and expenses, including but not
limited to attorneys' fees arising out of or due to their actions or omissions,
or consequences of such actions or omissions, with respect to Reorganized ICH or
the implementation or administration of this Plan, other than acts or omissions
resulting from such party's willful misconduct or gross negligence. To the
extent Reorganized ICH indemnifies and holds harmless the ICH Plan Administrator
and his Professionals, or any duly designated agents or representatives of any
of thereof or any of their respective employees (in their capacities as such),
as provided above, the legal fees and related costs incurred by counsel to the
ICH Plan Administrator in monitoring and participating in the defense of such
claims giving rise to the right of indemnification shall be paid out of the ICH
Operating Reserve exclusively.
In addition, Reorganized ICH and its Estate shall, to the
fullest extent permitted by the laws of the State of Delaware, indemnify and
hold harmless the ICH Plan Administrator (in his capacity as such and as an
officer and director of Reorganized ICH), and the ICH Plan Administrator's, and
Reorganized ICH's agents, representatives, Professionals and employees
(collectively the "Indemnified Parties") from and against and with respect to
any and all liabilities, losses, damages, claims, costs and expenses, including
but not limited to attorneys' fees arising out of or due to their actions or
omissions, or consequences of such actions or omissions, with respect to
Reorganized ICH and its Estate or the implementation or administration of this
Plan and the ICH Plan Administrator Agreement other than acts or omissions
resulting from such party's willful misconduct or gross negligence. To the
extent Reorganized ICH and its Estate indemnifies and holds harmless the
Indemnified Parties as provided above, the legal fees and related costs incurred
by counsel to the ICH Plan Administrator in monitoring and participating in the
defense of such claims giving rise to the right of indemnification shall be paid
out of the ICH Operating Reserve exclusively. The indemnification provisions of
the ICH Plan Administrator Agreement shall remain available to and be binding
upon any former ICH Plan Administrator or the estate of any deceased ICH Plan
Administrator and shall survive the termination of the ICH Plan Administrator
Agreement.
6. INSURANCE. The ICH Plan Administrator shall be
authorized to obtain all reasonably necessary insurance coverage for himself,
his agents, representatives, employees or independent contractors and
Reorganized ICH, including, but not limited to, coverage with respect to (i) any
property that is or may in the future become the property of Reorganized ICH and
(ii) the liabilities, duties and obligations of
30
the ICH Plan Administrator and his agents, representatives, employees or
independent contractors under the ICH Plan Administrator Agreement (in the form
of an errors and omissions policy or otherwise), the latter of which insurance
coverage may, at the sole option of the ICH Plan Administrator, remain in effect
for a reasonable period (not to exceed seven years) after the termination of the
ICH Plan Administrator Agreement.
7. SPECIAL AUTHORITY TO OBJECT TO CLAIMS AND INTERESTS
AND TO SETTLE DISPUTED CLAIMS. Subject to the rights of NewCo set forth at
Section IX.C.2(b) and any other limitations in this Plan, from and after the
Effective Date, Reorganized ICH and the ICH Plan Administrator shall be
authorized, with respect to those Claims or Equity Interests which are not
Allowed hereunder or by Bankruptcy Court order, (i) to object to any Claims or
Equity Interests filed against ICH's Estate and (ii) pursuant to Fed. R. Bankr.
P. 9019(b) and section 105(a) of the Bankruptcy Code, to compromise and settle
Disputed Claims, in accordance with the following procedures, which shall
constitute sufficient notice in accordance with the Bankruptcy Code and the
Bankruptcy Rules for compromises and settlements of Claims.
(a) If the resulting settlement provides for an
Allowed Claim in an amount less than or equal to $50,000, Reorganized ICH and
the ICH Plan Administrator may settle the Disputed Claim or Equity Interest and
execute necessary documents, including a stipulation of settlement or release,
in their sole discretion and without notice to any party.
(b) If the resulting settlement provides for an
Allowed Claim in an amount between $50,001 and $150,000, Reorganized ICH and the
ICH Plan Administrator may settle the Disputed Claim or Equity Interest and
execute necessary documents, including a stipulation of settlement or release,
with notice and opportunity for a hearing.
(c) If the resulting settlement provides for an
Allowed Claim in an amount greater than $150,000, Reorganized ICH and the ICH
Plan Administrator shall be authorized and empowered to settle such Disputed
Claim in accordance with Bankruptcy Rule 9019.
E. CANCELLATION OF SECURITIES, INSTRUMENTS AND AGREEMENTS
EVIDENCING CLAIMS AND EQUITY INTERESTS.
Except as otherwise provided in this Plan and in any contract,
instrument or other agreement or document created in connection with this Plan,
on the Effective Date and concurrently with the applicable distributions made
pursuant to Section IV, share certificates (including treasury stock), other
instruments evidencing any Claims or Equity Interests, and all options,
warrants, calls, rights, puts, awards, commitments or any other agreements of
any character to acquire such Equity Interests shall be deemed canceled and of
no further force and effect, without any further act or action under any
applicable agreement, law, regulation, order or rule, and the obligations of the
Debtors under the share certificates and other agreements and instruments
governing such Claims and Interests shall be discharged. The holders of or
parties to such canceled notes, share
31
certificates and other agreements and instruments shall have no rights arising
from or relating to such notes, share certificates and other agreements and
instruments or the cancellation thereof, except the rights provided pursuant to
this Plan.
F. RELEASE OF LIENS.
Except as otherwise provided in this Plan, the Confirmation
Order or in any document, instrument or other agreement created in connection
with this Plan, on the Effective Date and concurrently with the applicable
distributions made pursuant to Section IV and the payments made pursuant to
Section IX, all mortgages, deeds of trust, liens, or other security interests
against the property of ICH's Estate shall be fully released and discharged.
VIII.
PROVISIONS REGARDING CORPORATE GOVERNANCE AND
MANAGEMENT OF REORGANIZED SYBRA AND SYBRA CONN.
A. NEWCO.
On the Effective Date, pursuant to the NewCo Purchase and
Funding Agreement, NewCo shall become the sole owner of Reorganized Sybra.
Reorganized Sybra shall continue to own 100% of Sybra Conn. On the Effective
Date, the board of directors of NewCo shall consist of four members: Nelson
Peltz, Peter W. May, Michael C. Howe and Jonathan P. May.
B. DIRECTORS AND OFFICERS OF REORGANIZED SYBRA AND REORGANIZED
SYBRA CONN.; EFFECTIVE DATE SYBRA AND SYBRA CONN.'S
CERTIFICATES OF INCORPORATION AND EFFECTIVE DATE SYBRA AND
SYBRA CONN.'S BY-LAWS.
1. REORGANIZED SYBRA.
(a) BOARD OF DIRECTORS. On the Effective Date,
the existing board of directors of Sybra shall be deemed to have resigned as of
such date. On the Effective Date, the board of directors of Reorganized Sybra
shall consist of Nelson Peltz, Peter W. May, Michael C. Howe and Jonathan P.
May. The Board of Directors of Reorganized Sybra will select a Chairman of the
Board of Directors of Reorganized Sybra at its initial meeting.
(b) OFFICERS OF REORGANIZED SYBRA. The
identification of the officers of Reorganized Sybra is attached on Exhibit C to
the Disclosure Statement.
(c) EFFECTIVE DATE SYBRA CERTIFICATE OF
INCORPORATION AND EFFECTIVE DATE SYBRA BY-LAWS. The adoption of the Effective
Date Sybra Certificate of Incorporation and Effective Date Sybra By-laws shall
occur and be effective as of the Effective Date without any further action by
the directors or stockholders of Sybra or Reorganized Sybra.
32
2. REORGANIZED SYBRA CONN.
(a) BOARD OF DIRECTORS. On the Effective Date,
the existing board of directors Sybra Conn. shall be deemed to have resigned as
of such date. On the Effective Date, the board of directors of Reorganized Sybra
Conn. shall consist of three members: Brian Schorr, Kenneth A. Thomas and Curtis
S. Gimson. The Board of Directors of Reorganized Sybra Conn. will select a
Chairman of the Board of Directors of Reorganized Sybra Conn. at its initial
meeting.
(b) OFFICERS OF REORGANIZED SYBRA CONN. The
identification of the officers of Reorganized Sybra Conn. is attached on Exhibit
C to the Disclosure Statement.
(c) EFFECTIVE DATE SYBRA CONN. CERTIFICATE OF
INCORPORATION AND EFFECTIVE DATE SYBRA CONN. BY-LAWS. The adoption of the
Effective Date Sybra Conn. Certificate of Incorporation and Effective Date Sybra
Conn. By-laws shall occur and be effective as of the Effective Date without any
further action by the directors or stockholders of Sybra Conn. or Reorganized
Sybra Conn.
IX.
MEANS OF IMPLEMENTATION, PROVISIONS REGARDING
DISTRIBUTIONS UNDER THIS PLAN AND TREATMENT
OF DISPUTED, CONTINGENT AND UNLIQUIDATED
ADMINISTRATIVE CLAIMS, CLAIMS AND EQUITY INTERESTS
A. FUNDING FOR ICH.
1. SALE OF THE ICH ASSETS.
Entry of the Confirmation Order shall constitute the
Bankruptcy Court's approval of NewCo's purchase, under the NewCo Purchase and
Funding Agreement, of the ICH Assets pursuant to sections 1123(a)(5)(d) and 1129
of the Bankruptcy Code, free and clear of all Liens, without further corporate
action of the Debtors.
2. PAYMENT OF NEWCO CONSIDERATION TO ICH.
In consideration of the sale of the ICH Assets to NewCo,
pursuant to the NewCo Purchase and Funding Agreement, NewCo shall (i) on the
Effective Date, fund the ICH General Unsecured Fund with Cash in the amount of
$8.0 million, (ii) on the Effective Date, fund with Cash the ICH Administrative
and Priority Claim Fund and (iii) on the Effective Date, fund with Cash the ICH
Operating Reserve in the amount of the ICH Plan Administration Amount.
B. FUNDING FOR SYBRA AND SYBRA CONN.
On the Effective Date and following the purchase of ICH Assets
by NewCo pursuant to Section IX.A.1, NewCo, pursuant to the NewCo Purchase and
33
Funding Agreement, shall fund Reorganized Sybra with $14.5 million in Cash (less
the amounts required to fund the ICH Administrative and Priority Claim Funds and
the ICH Plan Administration Amount). With this Cash and Cash on hand,
Reorganized Sybra will fund in Cash (i) the Subsidiary General Unsecured Claim
Fund, (ii) the Sybra and Sybra Conn. Administrative and Priority Claim Fund, and
(iii) the Secured Lender Claim Fund. Reorganized Sybra will not pay any
dividends to NewCo for two (2) years from the Effective Date. Any loans made or
arranged by Triarc for the benefit of Reorganized Sybra or Reorganized Sybra
Conn. for the purpose of store remodeling shall be subject to the restrictions,
if any, in the Secured Loan Documents and shall pay interest in kind for no less
than two years after the Effective Date. In addition, NewCo (or an affiliate
thereof) will make or obtain the New Financing Facility.
C. DISTRIBUTIONS.
1. METHODS OF DISTRIBUTIONS UNDER THE PLAN.
(a) DATE AND DELIVERY OF DISTRIBUTIONS.
Distributions under this Plan shall be made by Reorganized ICH, Reorganized
Sybra or Reorganized Sybra Conn., as applicable, to the holders of Allowed
Claims, at the addresses set forth on the Schedules, unless such addresses are
superseded by proofs of claim or transfers of claim filed pursuant to Bankruptcy
Rule 3001 (or at the last known addresses of such holders if the Debtors or the
Reorganized Debtors have been notified in writing of a change of address).
(b) DISTRIBUTION OF CASH. Any payment of Cash by
Reorganized ICH, Reorganized Sybra Conn. or Reorganized Sybra, as applicable,
pursuant to this Plan shall be made at the option and in the sole discretion of
Reorganized ICH, Reorganized Sybra or Reorganized Sybra Conn., as applicable, by
(i) a check drawn on, or (ii) wire transfer from, a domestic bank selected by
Reorganized ICH or Reorganized Sybra or Reorganized Sybra Conn., as applicable.
(c) DISTRIBUTIONS FOR CLAIMS ALLOWED AS OF THE
INITIAL DISTRIBUTION DATE. On the Initial Distribution Date, or as soon
thereafter as practicable, Reorganized ICH, Reorganized Sybra Conn. or
Reorganized Sybra, as applicable, shall distribute Cash to the holders of
Allowed Claims.
(d) DISPUTED CLAIMS RESERVES.
(i) ESTABLISHMENT OF DISPUTED CLAIM
RESERVES. On or before the Initial Distribution Date,
Reorganized ICH, Reorganized Sybra and Reorganized Sybra Conn.
shall each create a Disputed Claims Reserve with respect to
the applicable Claims Payment Fund in an amount of Cash equal
to one hundred percent (100%) of distributions to which
holders of Disputed Claims, as applicable, would be entitled
under this Plan as of such date if such Disputed Claims were
Allowed Claims in their Disputed Claims amounts (excluding
duplicate Claims or Claim amounts); PROVIDED, HOWEVER, that
the Debtors, Reorganized ICH, Reorganized
34
Sybra or Reorganized Sybra Conn., at any time, may file
motion(s) pursuant to section 502(c) of the Bankruptcy Code
for order(s) estimating and limiting the amount of Cash which
shall be deposited in the Disputed Claims Reserves in respect
of any Disputed Claims, with notice and an opportunity to be
heard to the affected holders of such Disputed Claims. The
Disputed Claims Reserves shall be fully funded no later than
ten (10) days after the Bankruptcy Court has entered an order
resolving such motion(s), which order may be the Confirmation
Order.
(ii) CASH HELD IN DISPUTED CLAIMS
RESERVES. Cash held in the Disputed Claims Reserves shall be
segregated (including merely by entries on the books and
records of Reorganized ICH, Reorganized Sybra Conn. and
Reorganized Sybra concerning the applicable Claims Payment
Fund) and designated as held in trust for the benefit of
holders of Allowed Claims, up to the amount of such Allowed
Claims. Subject to Section IX.C.1(f) below, Cash held in the
Disputed Claims Reserves shall not constitute property of
Reorganized ICH, Reorganized Sybra or Reorganized Sybra Conn.
Reorganized ICH, Reorganized Sybra and Reorganized Sybra Conn.
shall invest the Cash held in the Disputed Claims Reserves in
a manner consistent with the ICH Plan Administrator Agreement
and Plan Supplement, as applicable. Reorganized ICH,
Reorganized Sybra and Reorganized Sybra Conn. shall pay, or
cause to be paid, out of the funds held in the Disputed Claims
Reserves, any tax imposed on the Disputed Claims Reserves by
any governmental unit with respect to income generated by Cash
held in the Disputed Claims Reserves.
(iii) DISTRIBUTIONS WITHHELD FOR DISPUTED
CLAIMS. The holder of a Disputed Claim that becomes an Allowed
Claim subsequent to the Initial Distribution Date shall
receive a distribution of Cash (with any post-Effective Date
interest thereon earned in the applicable Disputed Claims
Reserves) from Reorganized ICH, Reorganized Sybra or
Reorganized Sybra Conn., as applicable, on the next Quarterly
Distribution Date that follows the Quarter during which such
Disputed Claim becomes an Allowed Claim pursuant to a Final
Order. Such distributions shall be made in accordance with
this Plan based on the distributions that would have been made
to such holder under this Plan if the Disputed Claim had been
an Allowed Claim on or prior to the Initial Distribution Date.
(e) UNCLAIMED DISTRIBUTIONS AND OVERFUNDING.
(i) UNCLAIMED DISTRIBUTIONS. Any
distribution of Cash under this Plan which is unclaimed after
the later to occur of (a) one year after the relevant
distribution or (b) six months after the date on which such
claimant's Claim is Allowed shall (x) in the case of a holder
of an Allowed ICH General Unsecured Claim that is not an
Allowed Insider
35
Claim, be added back to the ICH General Unsecured Fund for
purposes of Pro Rata distributions to other holders of Allowed
ICH General Unsecured Claims and (y) in the case of a holder
of an Allowed Claim that is not an ICH General Unsecured
Claim, be transferred to NewCo, notwithstanding state or other
escheat or similar laws to the contrary.
(ii) OVERFUNDING. If after the resolution
by stipulation or Final Order of any Disputed Claim(s)
relating to the ICH Administrative and Priority Claim Fund,
there is Cash in any such Claims Payment Fund in excess of the
distributions that holders of Allowed Claims are entitled to
receive from such Claims Payment Fund, such Cash shall
immediately be transferred to and vest in NewCo.
(f) SATURDAYS, SUNDAYS, OR LEGAL HOLIDAYS. If
any payment or act under this Plan is required to be made or performed on a date
that is not a Business Day, then the making of such payment or the performance
of such act may be completed on the next succeeding Business Day, and shall be
deemed to have been completed as of the required date.
2. OBJECTIONS TO AND RESOLUTION OF CLAIMS; NEWCO
OBJECTION RIGHTS WITH RESPECT TO ICH CLAIMS.
(a) OBJECTIONS TO AND RESOLUTION OF CLAIMS.
Except as provided herein, Reorganized ICH, Reorganized Sybra Conn. and
Reorganized Sybra, as applicable, shall have the exclusive right to make and
file objections to Claims subsequent to the Confirmation Date. Except as
provided herein, all objections shall be litigated to a Final Order. Unless
otherwise ordered by the Court, Reorganized ICH, Reorganized Sybra and
Reorganized Sybra Conn., as applicable, shall file all objections to Claims that
are the subject of proofs of claim, listed in the Schedules or requests for
payment of Administrative Claims filed with the Court (other than applications
for allowances of compensation and reimbursement of expenses) and serve such
objections upon the holders of the Claim as to which the objection is made as
soon as is practicable, but in no event later than the Claims Objection Deadline
or such later date as may be approved by the Court.
(b) NEWCO OBJECTION RIGHTS WITH RESPECT TO ICH
CLAIMS. Notwithstanding the foregoing, NewCo is hereby granted the exclusive
right and delegated all authority and power on behalf of Reorganized ICH, which
shall include the ability to direct the ICH Plan Administrator, with respect to
filing objections to, or seeking the estimation by the Bankruptcy Court of, or
pursuing Causes of Action in any way related to, Administrative Claims, Fee
Claims, Other Priority Claims, Priority Tax Claims and the Care Financial Claim
against ICH. NewCo shall be responsible for any professional fees and expenses
and allocable costs of the ICH Plan Administrator with respect to such
objections, requests for estimation or Causes of Action.
3. ALLOCATION OF CONSIDERATION. The aggregate
consideration to be distributed to the holders of Allowed Claims in each Class
under this Plan (other than the
36
Claims, if any, of the Internal Revenue Service) shall be treated as first
satisfying an amount equal to the stated principal amount of the Allowed Claim
for such holders and any remaining consideration as satisfying accrued, but
unpaid, interest and costs, if any, and attorneys' fees where applicable.
4. CANCELLATION AND SURRENDER OF EXISTING ICH EQUITY
INTERESTS. On the Effective Date, the Equity Interests of ICH shall be deemed
canceled.
D. ESTIMATION.
Reorganized ICH, Reorganized Sybra Conn. or Reorganized Sybra,
as applicable, may, at any time, request that the Court estimate any Disputed
Claim pursuant to section 502(c) of the Bankruptcy Code regardless of whether
Reorganized ICH, Reorganized Sybra or Reorganized Sybra Conn. have previously
objected to such Claim. The Court will retain jurisdiction to estimate any Claim
at any time, including during litigation concerning any objection to such Claim.
In the event that the Court estimates any Disputed Claim, such estimated amount
may constitute either the Allowed amount of such Claim, or a maximum limitation
on such Claim, as determined by the Court. If the estimated amount constitutes a
maximum limitation on such Claim, Reorganized ICH, Reorganized Sybra or
Reorganized Sybra Conn. may elect to pursue any supplemental proceedings to
object to any ultimate payment of such Claim. All of the aforementioned Claims,
objection, estimation and resolution procedures are cumulative and not
necessarily exclusive of one another.
E. THE AMENDED AND EFFECTIVE DATE CERTIFICATES OF INCORPORATION,
THE AMENDED AND EFFECTIVE DATE BY-LAWS AND OTHER
IMPLEMENTATION DOCUMENTS.
On or before the Effective Date, as applicable, Reorganized
ICH, Reorganized Sybra and Reorganized Sybra Conn. will execute the Amended ICH
Certificate of Incorporation, the Amended ICH By-laws, the Effective Date Sybra
Certificate of Incorporation, the Effective Date Sybra By-laws, the Effective
Date Sybra Conn. Certificate of Incorporation, the Effective Date Sybra Conn.
By-laws, the ICH Plan Administrator Agreement, the NewCo Purchase and Funding
Agreement and all other documents required and necessary to implement this Plan,
without the requirement of any further corporate action. All such Certificates
of Incorporation shall comply with Section 1123(a)(6) of the Bankruptcy Code.
F. INTERCOMPANY CLAIMS.
On the Confirmation Date or such other date as may be set by
the Confirmation Order, but subject to the occurrence of the Effective Date, all
Intercompany Claims between Reorganized Sybra and Reorganized Sybra Conn., on
the one hand, and ICH, on the other hand, shall be extinguished.
37
X.
EFFECT OF CONFIRMATION OF THIS PLAN
A. CONTINUED CORPORATE EXISTENCE.
ICH, as Reorganized ICH, shall continue to exist after the
Effective Date with all powers of a corporation under the laws of the state of
its incorporation as limited by this Plan. Sybra, as Reorganized Sybra, and
Sybra Conn., as Reorganized Sybra Conn., shall continue to exist after the
Effective Date with all powers of a corporation under the laws of its state of
incorporation and without prejudice to any right to alter or terminate such
existence (whether by merger or otherwise) under such applicable state law; and
Reorganized Sybra and Reorganized Sybra Conn. may operate its business free of
any restrictions imposed by the Bankruptcy Code, the Bankruptcy Rules or by the
Court, subject only to the terms and conditions of the Plan.
B. DISSOLUTION OF CREDITORS' COMMITTEE; CESSATION OF PROFESSIONAL
SERVICES.
The Creditors' Committee shall continue in existence until the
Effective Date to exercise those powers and perform those duties specified in
section 1103 of the Bankruptcy Code and shall perform such other duties as it
may have been assigned by the Bankruptcy Court prior to the Effective Date. On
the Effective Date, the Creditors' Committee shall be dissolved and its members
shall be deemed released of all their duties, responsibilities and obligations
in connection with the Chapter 11 Cases or this Plan and its implementation, and
the retention or employment of the Creditors' Committee's and the Debtors'
attorneys and other agents shall terminate except with respect to (i) all Fee
Claims and (ii) any appeals of the Confirmation Order.
C. REVESTING OF ASSETS.
The property of the ICH Estate other than the ICH Assets shall
be revested in Reorganized ICH on the Effective Date. The property of the Sybra
Estate and the Sybra Conn. Estate shall be revested in Reorganized Sybra and
Reorganized Sybra Conn., respectively, on the Effective Date.
D. DISCHARGE OF THE DEBTORS.
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 all Claims and Equity Interests of any nature
whatsoever, including any interest accrued on such Claims from and after the
Petition Date, against the Debtors, the Debtors in Possession, the Reorganized
Debtors, or any of their respective assets or properties, arising prior to the
Effective Date. Except as otherwise expressly specified in this Plan, the
Confirmation Order shall act as of the Effective Date as a discharge of all
debts of, Claims against, Liens on, and Equity Interests in the Debtors, their
assets and properties, arising at any time before the entry of the Confirmation
Order, regardless of whether a proof of Claim or Equity Interest with respect
thereto was filed, whether the Claim or
38
Equity Interest is Allowed, or whether the holder thereof votes to accept this
Plan or is entitled to receive a distribution hereunder. Except as otherwise
expressly specified in this Plan, after the Effective Date, any holder of such
discharged Claim or Equity Interest shall be precluded from asserting against
the Debtors, the Reorganized Debtors, Triarc, NewCo, the ICH Plan Administrator
or any of their respective assets or properties, any other or further Claim or
Equity Interest based on any document, instrument, act, omission, transaction,
or other activity of any kind or nature relating to the Chapter 11 Cases that
occurred before the entry of the Confirmation Order.
E. DEBTORS' RELEASES OF JOHN BICKS AND ROBERT DRECHSLER. In
consideration of the Bicks/Drechsler Letter Agreement, including Bicks' and
Drechsler's agreement to waive and release any claims against Care Financial,
the Debtors waive and forever release John Bicks and Robert Drechsler from any
and all Claims, causes of action, defenses, liabilities, counterclaims, or
offsets and/or allegations, including, without limitation, any avoidance action,
each may have or may have made, or that is based upon transactions, acts,
omissions, facts or circumstances at any time up through and including the
Effective Date, except for willful misconduct or gross negligence.
F. INJUNCTION.
Except as otherwise expressly provided in this Plan or under
any assumed executory contract or unexpired lease or Secured Loan Document, the
Confirmation Order, or a separate order of the Court, all entities who have
held, hold, or may hold Claims against or Equity Interests in the Debtors which
arose before or were held as of the Effective Date, are permanently enjoined, on
and after the Effective Date, from (a) commencing or continuing in any manner
any action or other proceeding of any kind against the Debtors, with respect to
any such Claim or Equity Interest, (b) the enforcement, attachment, collection,
or recovery by any manner or means of any judgment, award, decree, or order
against the Debtors on account of any such Claim or Equity Interest, (c)
creating, perfecting, or enforcing any encumbrance of any kind against the
Debtors or against the property or interests in property of the Debtors on
account of any such Claim or Equity Interest and (d) asserting any right of
setoff, subrogation, or recoupment of any kind against any obligation due from
the Debtors or against the property or interests in property of the Debtors on
account of any such Claim or Equity Interest. Such injunction shall extend to
successors of the Debtors (including, without limitation, the Reorganized
Debtors), the ICH Plan Administrator, Triarc and NewCo and their respective
properties and interests in property.
G. PRESERVATION/WAIVER OF CAUSES OF ACTION.
1. PRESERVATION OF RIGHTS. Pursuant to this Plan, and
sections 544, 548, 549, 550, 551, 553 and 1123(b)(3)(B) of the Bankruptcy Code,
the Reorganized Debtors shall retain all rights and all Causes of Action
accruing to them and their Estates. Including, without limitation, the avoidance
of any transfer of an interest of the Debtors in property or any obligation
incurred by the Debtors, except as expressly noted in this Plan or the
Confirmation Order, nothing contained in this Plan or the Confirmation Order
shall be deemed to be a waiver or relinquishment of any such rights or Causes of
Action.
39
Nothing contained in this Plan or the Confirmation Order shall be deemed to be a
waiver or relinquishment of any Claim, Cause of Action, right of setoff, or
other legal or equitable defense which the Debtors had immediately prior to the
Petition Date which is not specifically waived or relinquished by this Plan. The
Reorganized Debtors shall have, retain, reserve and be entitled to assert all
such Claims, Causes of Action, rights of setoff and other legal or equitable
defenses which the Debtors had immediately prior to the Petition Date as fully
as if the Chapter 11 Cases had not been commenced; and all of the Reorganized
Debtors' legal and equitable rights respecting any Claim which are not
specifically waived or relinquished by this Plan may be asserted after the
Effective Date to the same extent as if the Chapter 11 Cases had not been
commenced.
2. CAUSE OF ACTION PROCEEDS. Subject to NewCo's rights
under the Plan, the proceeds, if any, received by Reorganized ICH in respect of
any Causes of Action shall be used by Reorganized ICH for funding the ICH
Operating Reserve and for additional distributions on a Pro Rata basis to the
holders of Allowed Class 5 Claims (or ICH Equity Interests, as the case may be).
H. VOTES SOLICITED IN GOOD FAITH.
Triarc (and each of its respective affiliates, agents,
directors, officers, members, employees, advisors, and attorneys) has, and upon
confirmation of this Plan shall be deemed to have, solicited acceptances of this
Plan in good faith and in compliance with the applicable provisions of the
Bankruptcy Code and will not be liable at any time for the violation of any
applicable law, rule or regulation governing the solicitation of acceptances or
rejections of this Plan.
I. ADMINISTRATIVE CLAIMS INCURRED AFTER THE CONFIRMATION DATE.
Administrative Claims incurred by the Reorganized Debtors
after the date and time of the entry of the Confirmation Order, including
(without limitation) Claims for Professionals' fees and expenses incurred after
such date, including, without limitation, claims for Professionals' fees and
expenses by the Reorganized Debtors after such date, shall not be subject to
application and may be paid by the Reorganized Debtors in the ordinary course of
business and without application for or Court approval.
J. EXCULPATION, LIMITATIONS.
1. EXCULPATION. The Debtors, the Reorganized Debtors,
the ICH Plan Administrator, the Creditors' Committee, NewCo, Triarc and their
respective present and former members, officers, directors, representatives,
shareholders, employees, advisors, attorneys and agents acting in such capacity
(i) shall have no liability whatsoever to any holder or purported holder of an
Administrative Claim, Claim, or Equity Interest for any act or omission in
connection with, or arising out of, the Plan, the Disclosure Statement, the
negotiation of the Plan, the negotiation of the other documents, included in the
Plan Supplement, the pursuit of approval of the Disclosure Statement or the
solicitation of votes for confirmation of the Plan, the Chapter 11 Cases, the
consummation of the Plan, the administration of the Plan or the property to be
distributed under the Plan, or any
40
transaction contemplated by the Plan or Disclosure Statement or in furtherance
thereof (including, without limitation, employment contracts, programs and
arrangements adopted in connection with the Plan or the Chapter 11 Cases),
except for willful misconduct, gross negligence or breach of fiduciary duty as
determined by a Final Order, and (ii) in all respects, shall be entitled to rely
upon the advice of counsel with respect to their duties and responsibilities
under the Plan. This exculpation shall be in addition to, and not in limitation
of, all other releases, indemnities, exculpations and any other applicable law
or rules protecting such parties from liability.
2. LIMITATION WITH RESPECT TO GOVERNMENTAL ENTITIES.
Notwithstanding Section X.I.1 of this Plan, the Plan shall not release,
discharge, or exculpate any non-debtor party from any debt owed to the United
States Government and/or its agencies, including the Pension Benefit Guaranty
Corporation (the "Government"), or from any liability arising under the Internal
Revenue Code, the Employee Retirement Income Security Act of 1974, as amended,
or the environmental laws, securities laws or criminal laws of the United
States. In addition, notwithstanding Section X.I.1 of this Plan, the Plan shall
not enjoin or prevent the Government from collecting any such liability from any
such non-debtor party.
K. TERM OF BANKRUPTCY INJUNCTION OR STAYS.
All injunctions or stays provided for in the Chapter 11 Cases
under sections 105 or 362 of the Bankruptcy Code, or otherwise, and in existence
on the Confirmation Date, shall remain in full force and effect until the
Effective Date.
L. PRESERVATION OF INSURANCE.
The Debtors' discharge and release from all Claims as provided
herein, except as necessary to be consistent with this Plan, shall not diminish
or impair the enforceability of any insurance policy that may cover Claims
against the Debtors, the Reorganized Debtors (including, without limitation,
their officers and directors) or any other person or entity.
M. SETOFFS.
The Debtors may, but shall not be required to, set off against
any Claim or Equity Interest, and the payments or other distributions to be made
pursuant to this Plan in respect of such Claim or Equity Interest, claims of any
nature whatsoever that the Debtors may have against such holder of a Claim of
Equity Interest; but neither the failure to do so nor the allowance of any Claim
or Equity Interest hereunder shall constitute a waiver or release by the Debtors
or the Reorganized Debtors of any such claim that the Debtors or the Reorganized
Debtors may have against such holder of a Claim of Equity Interest.
N. INDEMNIFICATION OBLIGATIONS.
Sybra's and Sybra Conn's indemnification obligations to
present and former directors, officers or employees, upon or after the Petition
Date, pursuant to their
41
certificates of incorporation and by-laws or applicable state law, or any
combination of the foregoing, shall survive confirmation of the Plan, remain
unaffected thereby, and not be discharged.
XI.
RETENTION OF JURISDICTION
The Bankruptcy Court shall have exclusive jurisdiction of all
matters arising out of, and related to, the Chapter 11 Cases and this Plan
pursuant to, and for the purposes of, section 105(a) and section 1142 of the
Bankruptcy Code and for, among other things, the following purposes: (i) to hear
and determine applications for the assumption or rejection of executory
contracts or unexpired leases and the allowance of Claims resulting therefrom;
(ii) to determine any other applications, adversary proceedings, and contested
matters pending on the Effective Date; (iii) to ensure that distributions to
holders of Allowed Claims are accomplished as provided herein; (iv) to resolve
disputes as to the ownership of any Claim or Equity Interest; (v) to hear and
determine timely objections to Administrative Claims, Claims and Equity
Interests; (vi) to enter and implement such orders as may be appropriate in the
event the Confirmation Order is for any reason stayed, revoked, modified or
vacated; (vii) to issue such orders in aid of execution of this Plan, to the
extent authorized by section 1142 of the Bankruptcy Code; (viii) to consider any
modifications of this Plan, to cure any defect or omission, or to reconcile any
inconsistency in any order of the Bankruptcy Court, including, without
limitation, the Confirmation Order; (ix) to hear and determine all applications
for compensation and reimbursement of expenses of Professionals under sections
330, 331, and 503(b) of the Bankruptcy Code; (x) to hear and determine disputes
arising in connection with the interpretation, implementation, or enforcement of
this Plan; (xi) to hear and determine any issue for which this Plan requires a
Final Order of the Bankruptcy Court; (xii) to hear and determine matters
concerning state, local, and federal taxes in accordance with sections 346, 505
and 1146 of the Bankruptcy Code; (xiii) to hear any other matter not
inconsistent with the Bankruptcy Code; (xiv) to hear and determine disputes
arising in connection with compensation and reimbursement of expenses of
Professionals for services rendered during the period commencing on the
Confirmation Date through and including the Effective Date; (xv) to hear and
determine all avoidance actions commenced by the Reorganized Debtors pursuant to
sections 544, 545, 547, 548, 549 and 553 of the Bankruptcy Code; and (xvi) to
enter a final decree closing the Chapter 11 Cases.
XII.
MISCELLANEOUS PROVISIONS
A. PAYMENT OF STATUTORY FEES.
All fees payable on or before the Effective Date (i) pursuant
to Section 1930 of title 28 of the United States Code, as determined by the
Bankruptcy Court at the Confirmation Hearing, and (ii) to the United States
Trustee, shall be paid by
42
the Debtors on or before the Effective Date. Any such fees accruing after the
Effective Date shall be paid by the applicable Reorganized Debtor.
B. AMENDMENT, MODIFICATION OR WITHDRAWAL OF THIS PLAN;
SEVERABILITY.
Triarc reserves the right, subject to the Bankruptcy Code, to
amend or to modify or to withdraw the Plan prior to the entry of the
Confirmation Order, including, without limitation, to make such amendments or
modifications as may be necessary to carry out the purpose and intent of the
Plan and to ensure its confirmability. After entry of the Confirmation Order,
the Reorganized Debtors may amend or modify the Plan or remedy any defect or
omission or reconcile any inconsistency in the Plan in such a manner as may be
necessary to carry out the purpose and intent of the Plan. Subject to Triarc's
right to amend, modify or withdraw the Plan prior to entry of the Confirmation
Order, any provision of the Plan that is determined by the Bankruptcy Court to
cause the Plan to be not confirmable shall be ineffective without affecting in
any way the remaining provisions hereof.
C. GOVERNING LAW.
Unless a rule of law or procedure is supplied by Federal law
(including the Bankruptcy Code and Bankruptcy Rules) or the Delaware General
Corporation Law or Delaware Limited Liability Company Act or such other similar
law that may apply, the laws of the State of New York (without reference to the
conflicts of laws provisions thereof) shall govern the construction and
implementation of this Plan and any agreements, documents, and instruments
executed in connection with this Plan.
D. FILING OR EXECUTION OF ADDITIONAL DOCUMENTS.
On or before the Effective Date, Triarc, the Debtors or the
Reorganized Debtors shall file with the Bankruptcy Court or execute, as
appropriate, such agreements and other documents as may be necessary or
appropriate to effectuate and further evidence the terms and conditions of this
Plan, including without limitation the NewCo Purchase and Funding Agreement.
E. SECTION 338(H)(10) ELECTION
At NewCo's option, NewCo and ICH shall make an election under
Section 338(h)(10) of the Internal Revenue Code and any comparable provision of
state, local or foreign law, with respect to the purchase of the ICH Assets or
any portion thereof.
F. WITHHOLDING AND REPORTING REQUIREMENTS.
In connection with this Plan and all instruments issued in
connection therewith and distributions thereon, Reorganized Debtors shall comply
with all withholding and reporting requirements imposed by any federal, state,
local, or foreign taxing authority and all distributions hereunder shall be
subject to any such withholding and reporting requirements.
43
G. EXEMPTION FROM TRANSFER TAXES.
Pursuant to section 1146(c) of the Bankruptcy Code, any
transfer from the Debtors to the Reorganized Debtors or otherwise pursuant to
this Plan, including the transfer of the ICH Assets to NewCo, shall not be
subject to any stamp, real estate transfer, recording or other similar tax or
governmental assessment, 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.
H. WAIVER OF FEDERAL RULE OF CIVIL PROCEDURE 62(A).
Triarc may request that the Confirmation Order include (i) a
finding that Fed. R. Civ. P. 62(a) shall not apply to the Confirmation Order and
(ii) authorization for the Debtors to consummate this Plan immediately after
entry of the Confirmation Order.
I. HEADINGS.
Headings used in this Plan are for convenience and reference
only and shall not constitute a part of this Plan for any purpose.
J. EXHIBITS.
All Exhibits to this Plan are incorporated into and constitute
a part of this Plan as if set forth herein.
K. NOTICES.
All notices, requests, and demands hereunder to be effective
shall be in writing and unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when actually delivered or, in the case
of notice by facsimile transmission, when received and telephonically confirmed,
addressed as follows:
TO TRIARC AND NEWCO: Triarc Companies, Inc., 280 Park Avenue,
New York, NY 10017, Attn: Brian Schorr;
with a copy to: Paul, Weiss, Rifkind, Wharton & Garrison, 1285
Avenue of the Americas, New York, New York 10019-6064, attention: Alan W.
Kornberg, John R. Ashmead, tel.: (212) 373-3000; fax (212) 757-3990.
TO THE DEBTORS: ICH Corporation, Sybra, Inc. and Sybra of
Connecticut, Inc., c/o Sonnenschien Nath & Rosenthal, 1221 Avenue of the
Americas, New York, New York 10020, attention: Peter D. Wolfson, D. Farrington
Yates, tel.: (212) 768-6700, fax: (212) 768-6800.
TO THE CREDITORS COMMITTEE: Official Committee of Unsecured
Creditors of ICH Corporation, Sybra, Inc. and Sybra of Connecticut, Inc., c/o
Vinson & Elkins,
44
666 Fifth Avenue, New York, New York 10103, attention: Dan Stewart, Steven
Abramowitz, tel.: (917) 206-8000; fax: (917) 206-8100.
L. PLAN SUPPLEMENT.
Forms of the documents relating to the Amended ICH Certificate
of Incorporation, the Amended ICH By-laws, the Effective Date Sybra Certificate
of Incorporation, the Effective Date Sybra By-laws, the Effective Date Sybra
Conn. Certificate of Incorporation, the Effective Date Sybra Conn. By-laws, the
ICH Plan Administrator Agreement and, the NewCo Purchase and Funding Agreement
shall be contained in the Plan Supplement which shall be filed with the Clerk of
the Bankruptcy Court no later than ten (10) days before the Voting Deadline. The
Plan Supplement may be inspected in the office of the Clerk of the Bankruptcy
Court during normal court hours. Holders of Claims or Equity Interests may
obtain a copy of the Plan Supplement upon written request to Triarc in
accordance with Section XII.K of this Plan.
M. CONFLICT.
The terms of this Plan shall govern in the event of any
inconsistency with the summaries of this Plan set forth in the Disclosure
Statement.
N. SETOFF BY THE UNITED STATES.
The valid setoff rights, if any, of the United States of
America will be unaffected by this Plan or confirmation thereof.
XIII.
CONDITIONS PRECEDENT TO
CONFIRMATION OF THE PLAN AND THE EFFECTIVE DATE
A. CONFIRMATION OF THIS PLAN.
This Plan can be confirmed either under section 1129(a) of the
Bankruptcy Code or in a non-consensual manner under section 1129(b) of the
Bankruptcy Code so long as the conditions of Section XIII.B have been satisfied
or waived pursuant to Section XIII.D.
B. CONDITIONS PRECEDENT TO THE CONFIRMATION OF THE PLAN.
Unless this condition is waived in accordance with Section
XIII.D, the Confirmation Order must be in form and substance acceptable to
Triarc.
C. CONDITIONS PRECEDENT TO EFFECTIVENESS.
The Plan shall not become effective unless and until it has
been confirmed and the following conditions have been satisfied in full or
waived pursuant to Section XIII.D:
45
1. The Confirmation Order in a form satisfactory to
Triarc shall have become a Final Order.
2. The NewCo Purchase and Funding Agreement shall be
executed and performed by the Debtors.
3. The Amended ICH Certificate of Incorporation shall
have been properly filed with the Secretary of State of the State of Delaware.
4. The Effective Date Sybra Certificate of Incorporation
shall have been properly filed with the appropriate Secretary of State.
5. The Effective Date Sybra Conn. Certificate of
Incorporation shall have been properly filed with the appropriate Secretary of
State.
6. All authorizations, consents and regulatory approval
required (if any) for this Plan's effectiveness shall have been obtained.
D. WAIVER OF CONDITIONS.
Triarc may waive any or all of the conditions set forth in
Sections XIII.B and C above at any time, without leave of or order of the Court
and without any formal action.
E. EFFECT OF FAILURE OF CONDITIONS. In the event that the
Effective Date does not occur on or before sixty (60) days after the
Confirmation Date, upon notification submitted by Triarc to the Bankruptcy
Court: (i) the Confirmation Order shall be vacated, (ii) no distributions under
this Plan shall be made, (iii) the Debtors and all holders of Claims and Equity
Interests shall be restored to the status quo ante as of the day immediately
preceding the Confirmation Date as though the Confirmation Date had never
occurred, and (iv) the Debtors' obligations with respect to the Claims and
Equity Interests shall remain unchanged and nothing contained in this Plan shall
constitute or be deemed a waiver or release of any Claims or Equity Interests by
or against the Debtors or any other person or to prejudice in any manner the
rights of the Debtors or any person in any further proceedings involving the
Debtors.
F. VACATUR OF CONFIRMATION ORDER. If an order denying
confirmation of this Plan is entered, then this Plan shall be null and void in
all respects, and nothing contained in this Plan shall (i) constitute a waiver
or release of any Claims against or Equity Interests in the Debtors; (ii)
prejudice in any manner the rights of the holder of any Claim against, or Equity
Interest in, the Debtors; (iii) prejudice in any manner any right, remedy, claim
or defense of the Debtors; or (iv) be deemed an admission against interest by
the Debtors.
46
Dated: November 22, 2002
TRIARC COMPANIES, INC.
By: /s/ Brian L. Schorr
---------------------------------------
Name: Brian L. Schorr
Title: Executive Vice President and
General Counsel
47
SCHEDULE A
FILED AS SEPARATE DOCUMENT ON 11/22/02
A-1
SCHEDULE B
FILED AS SEPARATE DOCUMENT ON 11/22/02
B-1
SCHEDULE C
SECURED LENDERS*
----------------
Atheron Capital Incorporated
Bayview Franchise Mortgage
Captec Financial Group, Inc.
CIT Lending Services Corporation
CNL Financial VI, LP
Finova Capital Corp.
Fleet Business Credit, LLC
GE Capital Franchise Finance Corporation
GMAC
Wells Fargo Bank, N.A.
- ------------------------
* Subject to any corrections that are necessary.
C-1
- --------------------------------------------------------------------------------
PROPOSED ALLOWED AMOUNTS OF SECURED LENDER CLAIMS*
- --------------------------------------------------------------------------------
A. B. C.
POSTPETITION PREPETITION REMAINING
PRINCIPAL INTEREST (AND BALANCE
SECURED LENDER (THROUGH PREPETITION PRINCIPAL AS OF
12/31/02) IF APPLICABLE) 12/31/02**
- --------------------------------------------------------------------------------
GECFFC $ 808,921.65 $ 125,446.35 $ 12,473,834.96
- --------------------------------------------------------------------------------
Fleet 527,492.07 84,937.01 9,424,596.06
- --------------------------------------------------------------------------------
CIT 743,459.85 158,765.59 17,695,625.05
- --------------------------------------------------------------------------------
BVFMAC 97,819.49 17,699.76 1,933,300.20
- --------------------------------------------------------------------------------
Wells Fargo 177,599.65 51,942.97 5,001,898.55
- --------------------------------------------------------------------------------
Finova 859,488.45 181,548.35 20,617,939.51
- --------------------------------------------------------------------------------
GMAC 73,934.57 5,445.49 482,809.09
- --------------------------------------------------------------------------------
Atherton/Amresco 2,192,232.91 244,037.75 21,968,496.17
- --------------------------------------------------------------------------------
CAPTEC 133,701.21 10,236.85 894,140.74
- --------------------------------------------------------------------------------
CNL 34,310.28 9,820.01 943,963.95
- --------------------------------------------------------------------------------
* As reflected in Debtor's books and records; subject to correction as maybe
required under Secured Loan Documents, and subject to Plan.
** After payments in Columns A and B.
C-2
SCHEDULE D
SCHEDULE OF LOAN DOCUMENT MODIFICATIONS
---------------------------------------
1. All references in the Secured Loan Documents to ICH
Corporation, ICH, "guarantor" or "parent" or similar terms shall be deleted.
Consistent with the foregoing, the following or similar provisions shall be
eliminated as events of default under each of the Secured Loan Documents:
(a) Failure of ICH to own any given percentage of Sybra's
capital stock or failure by ICH to maintain voting control over Sybra or failure
by ICH to maintain the ability to direct the management policies to Sybra.
(b) ICH's denial of its obligations under any guarantee,
or failure of any guarantee to remain in full force and effect.Any provision in
any of the Secured Documents restricting a change of control of Sybra or Sybra
Conn. shall be deemed waived with respect to the acquisition by NewCo of 100% of
the equity interests of Sybra or Sybra Conn pursuant to the Triarc Chapter 11
Plan.
2. All covenants requiring Sybra or Sybra Conn to maintain a
specified fixed charge coverage ratio shall be amended to require Sybra or Sybra
Conn. to maintain a fixed charge coverage ratio of 1.0 to 1 for the first four
years following the confirmation date and 1.1 to 1 thereafter. Additionally, no
fixed charge ratio covenant or other financial maintenance covenant shall be
operative until the commencement of the first full calendar quarter following
the confirmation date. For all Secured Loan Documents, the fixed charge coverage
ratio shall be defined as: the sum of earnings before interest, cash taxes,
depreciation, amortization, rent expense, equipment rent and any non-recurring
income or expense items divided by the sum of scheduled debt principal
(including capitalized lease obligations) and interest payments, rent expense,
equipment rent and dividends. All calculations of fixed charge coverage ratio
shall be calculated on a trailing twelve months' basis. In the event that Sybra
or Sybra Conn fails to maintain the required fixed charge coverage ratio during
any period, such failure may be cured by a contribution of cash equity by NewCo
during the quarter immediately following such period in an amount such that, if
such equity contribution were added to the numerator of the fixed charge
coverage ratio calculation, the ratio for the period in question would then meet
the required minimum.
3. For all Secured Loan Documents, all covenants requiring the
furnishing of financial reports or information shall be amended to require that
only the following financial reports be furnished:
(a) Within 120 days after the end of each fiscal year of
Sybra, Inc., the consolidated balance sheet of Sybra, Inc. and its subsidiaries
as of the end of such fiscal year and the related consolidated statements of
operations, cash flows and stockholders' equity for such
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fiscal year, and certified by independent certified public accountants of
reorganized national standing.
(b) Within 60 days after the end of each of the first
three fisc
(c) al quarters in each fiscal year of Sybra, Inc., the
unaudited consolidated balance sheet of Sybra, Inc. and it subsidiaries as of
the end of such quarterly period and related consolidated statements of
operations, cash flows and stockholders' equity for such quarterly period and
for the elapsed portion of the fiscal year ended with the last day of such
quarterly period.
4. No covenant under any of the Secured Loan Documents shall be
deemed to prohibit the reincorporation in Delaware of Sybra, Inc. and Sybra
Conn.
5. All pre-existing non-monetary defaults under any Secured Loan
Document and any defaults that would be triggered by the Triarc Chapter 11 Plan
or the transactions effected thereunder shall be deemed to be waived irrevocably
and unconditionally as of the Effective Date.
6. At the option of a Secured Lender, its Secured Loan Documents
may be modified to provide for cross-collateralization.
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SCHEDULE E
BICKS/DRECHSLER LETTER AGREEMENT
--------------------------------
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TRIARC RESTAURANT HOLDINGS, LLC
280 PARK AVENUE, 41ST FLOOR
NEW YORK, NEW YORK 10017
================================================================================
November 15, 2002
PERSONAL AND CONFIDENTIAL
- -------------------------
Mr. John A. Bicks
Mr. Robert H. Drechsler
c/o Sybra, Inc.
780 Third Avenue
New York, NY 10017
Re: PROPOSED TERMS OF EMPLOYMENT
Dear Messrs. Bicks and Drechsler:
Reference is made to the First Amended Joint Plan of
Reorganization under Chapter 11 of the Bankruptcy Code for ICH Corporation,
Sybra, Inc. and Sybra of Connecticut, Inc. (as amended from time to time, the
"Triarc Plan") proposed by Triarc Companies, Inc. ("Triarc") in the jointly
administered chapter 11 cases of ICH Corporation ("ICH"), Sybra, Inc. ("Sybra")
and Sybra of Connecticut, Inc. ("Sybra-CT"; collectively, the "Debtors").
Subject to and conditioned upon (i) countersignature by each of you in the space
provided below and (ii) the occurrence of the Effective Date1 of the Triarc
Plan, this letter will confirm certain agreements that Triarc Restaurant
Holdings, LLC ("Newco") has reached with you with respect to (x) your respective
Second Amended and Restated Employment Agreements, dated as of May 15, 2001, as
amended (the "Employment Agreements") with the Debtors and with Care Financial
Corporation ("Care Financial"), a non-debtor subsidiary of ICH, and (y) your
future arrangements with Sybra. For good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, we hereby agree as follows:
- ------------------------
1 Capitalized terms used herein but not defined shall have the meanings
ascribed to them in the Triarc Plan.
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(i) The Employment Agreements will be rejected under the Triarc
Plan and you shall not object to, or otherwise impede, such
rejection.
(ii) On or before the Effective Date, you shall cause the
cancellation of all outstanding letters of credit that secure
obligations owed and performance due to you under the
Employment Agreements and you shall furnish Newco with
adequate proof of such cancellation.
(iii) Each of you agrees to vote in favor of the Triarc Plan in
respect of your claims against ICH. In addition, each of you
agrees not to (a) solicit acceptances or rejections of, or (b)
unless compelled by an order of the Bankruptcy Court
overseeing the Debtors' chapter 11 cases, to publicly or
privately disclose a preference for, either of the competing
chapter 11 plans proposed for the Debtors. In addition, you
shall not directly or indirectly object to, or take any other
action to frustrate or impede confirmation of, the Triarc Plan
and occurrence of the Effective Date thereunder.
(iv) On the later of the Effective Date and January 2, 2003: (a)
you will each receive a Cash payment from Sybra in the amount
of $454,000 (subject to any applicable withholding
requirements) in full settlement and satisfaction of any and
all claims that you may have against the Debtors and Care
Financial including, but not limited to, those arising under
the Employment Agreements; and (b) Sybra will reimburse you
for actual legal fees and expenses incurred by you in
connection with the matters described herein in an aggregate
amount not to exceed $25,000, with the amounts referenced in
(a) and (b) to be paid to you by wire transfer of immediately
available funds in accordance with written instructions to be
provided by each of you. You shall furnish Newco with copies
of the statements for legal fees prior to receiving the
payment under (iv)(b).
(v) Each of you will be offered employment by reorganized Sybra
for a period of one year commencing on the date of the closing
of the transactions contemplated in the Triarc Plan (the
"Employment Term"), at an annual salary, paid biweekly, of
$454,000 (subject to applicable withholding requirements).
Such annual salary, together with all other amounts due to
each of you under this agreement, shall be paid
notwithstanding the death or disability of either of you; and
in such event, such amounts will be paid to your legal
representative. Your employment obligations shall include,
without limitation, assisting Triarc, Newco and the Debtors
(a) to implement the Triarc Plan (including by assisting the
ICH Plan Administrator), and (b) in the preparation of filings
to be made by Triarc and its affiliates with the Securities
and Exchange Commission containing information relating to the
Debtors. Neither of you will be required to perform services
that do not relate to Newco, the Debtors or Care Financial.
(vi) During the Employment Term, you will each work on a full-time,
exclusive basis for the first six months thereof; for the
second six months, you will each be
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available on a part-time, non-exclusive basis as requested by
Sybra upon reasonable notice. You may pursue, accept,
undertake and perform other employment on a full-time basis
while serving Sybra on a part-time basis. During the
Employment Term, you may be terminated only for "Cause" as
that term is defined in section 4(a)(i) of the Employment
Agreements, and such defined term is incorporated herein by
reference.
(vii) During the Employment Term, each of you will continue to be
included in the medical, life, and director and officer
liability insurance programs available to Sybra executives at
the levels of your current participation, and you shall
receive the same premium and reimbursement coverages with
respect thereto that you have, under the Employment Agreements
(as of the date hereof).
(viii) It is expected that during the Employment Term, each of you
will continue to work from Sybra's New York office located at
780 Third Avenue, New York, New York, the lease for which is
being assumed as part of the Triarc Plan. If during that first
six months of the Employment Term this office is closed,
comparable office space in Manhattan will be made available
for your use and the cost of any move will be borne by Sybra.
Essential support services shall be made available to you so
that you may perform your duties hereunder, including a full
time secretary/receptionist (compensation approximately
$40,000 per annum) during the first six months of the
Employment Term.
(ix) As of the Effective Date, each of you hereby waive and release
any and all claims (including, but not limited to, any and all
severance, compensation, bonus, option or other claims arising
under or related to your respective Employment Agreements and
the rejection thereof) that you may have or may assert against
the Debtors or Care Financial and you shall promptly withdraw
any and all proofs of claim filed by you or on your behalf
against the Debtors.
(x) During the Employment Term, each of you will not, directly or
indirectly, compete with any business Newco or the Debtors (or
any of their affiliates or successors) is then conducting or
which is then covered in a written proposal or business plan
then in effect, in any place in which Newco or the Debtors (or
any of their affiliates or successors) does business at the
time you seek to engage in such business.
(xi) For a period of three (3) years commencing on the Effective
Date, neither of you shall (a) directly or indirectly solicit
or attempt to solicit or participate in the solicitation of or
otherwise advise or encourage any officer, employee, agent,
consultant or representative of, Newco or the Debtors (or any
of their affiliates or successors) to terminate his, her or
its relationship with Newco or the Debtors (or any of their
affiliates or successors), or (b) directly or indirectly
solicit for employment or hire any officer, employee, agent,
consultant or representative of Newco or the Debtors (or any
of their affiliates or successors).
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(xii) Neither of you shall, during the Employment Term or at any
time thereafter, except as required by law or as is necessary
for the performance of your duties set forth herein, directly
or indirectly, publish, make known or in any manner disclose
any confidential records (as hereinafter defined) of Triarc,
Newco, the Debtors or any of their affiliates, or permit any
inspection or copying of confidential records of Triarc,
Newco, the Debtors or any of their affiliates, by, any
individual or entity. Neither of you shall retain any copies
of any of such confidential records following termination of
your employment hereunder. For purposes of this Agreement,
"confidential records" means, without limitation, all
information (whether written or oral), correspondence,
memoranda, files, manuals, books, lists, financial, operating
or marketing records and customer and vendor records relating
to or containing any information not generally available to
the public, any proprietary information (in any medium whether
in writing, on magnetic tape or in electronic or other form)
or any equipment of any kind which may be in your possession
or under your control or accessible to you. In addition,
during the Employment Term and thereafter, each of you shall
refrain from making any statement, written or oral, which is
disparaging to Triarc, Sybra, their affiliates, directors or
officers, provided that Newco performs its obligations
hereunder. During the Employment Term and thereafter, Triarc,
Newco, Sybra, their affiliates, directors or officers shall
refrain from making any statement, written or oral, which is
disparaging to you, provided that you perform your obligations
hereunder.
(xiii) The Triarc Plan shall be amended to add: (a) a release from
the Debtors arising in your favor effective as of, and
covering all claims arising through, the Effective Date; (b)
your names to the exculpation provision; and (c) a provision
in your favor continuing the indemnification benefits
available under Sybra's charter and by-laws. In addition, each
of you, on the one hand, and Triarc and Newco, on the other
hand, will execute and deliver mutual releases with respect to
any and all claims arising through the Effective Date. A copy
of such mutual release is attached hereto as Exhibit A. Each
of you agrees to execute such other and further documents as
may be necessary to effectuate the terms agreed to herein.
(xiv) Newco agrees that following the Effective Date it shall cause
Sybra to comply with its obligations hereunder.
(xv) Each of you agrees that this Agreement shall be disclosed to
the Bankruptcy Court.
(xvi) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE WHOLLY PERFORMED WITHIN THAT
STATE, WITHOUT REGARD TO ITS CONFLICT OF LAWS
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PROVISIONS OR THE CONFLICT OF LAWS PROVISIONS OF ANY OTHER
JURISDICTION WHICH WOULD CAUSE THE APPLICATION OF ANY LAW
OTHER THAN THAT OF THE STATE OF NEW YORK. ANY ACTION TO
ENFORCE THIS AGREEMENT MUST BE BROUGHT IN A COURT SITUATED IN
THE CITY OF NEW YORK_ AND THE PARTIES HEREBY CONSENT TO THE
JURISDICTION OF COURTS SITUATED IN NEW YORK COUNTY. EACH PARTY
HEREBY WAIVES THE RIGHTS TO CLAIM THAT ANY SUCH COURT IS AN
INCONVENIENT FORUM FOR THE RESOLUTION OF ANY SUCH ACTION.
(xvii) THE PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY
TRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION
WITH THIS AGREEMENT IS LITIGATED OR HEARD IN ANY COURT.
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If the foregoing accurately reflects the understanding that we
have reached, please execute this letter agreement where indicated below and
return a copy of this letter by facsimile to me (212-451-3216).
Very truly yours,
TRIARC RESTAURANT HOLDINGS,
LLC
By /s/ Jonathan P. May
---------------------------------------
Jonathan P. May
Senior Vice President-
Corporate Development
AGREED TO AND ACCEPTED:
/s/ John A. Bicks
- ----------------------------------
John A. Bicks
/s/ Robert H. Drechsler
- ----------------------------------
Robert H. Drechsler
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EXHIBIT A
---------
GENERAL RELEASE
AND COVENANT NOT TO SUE
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW that:
Each of John Bicks and Robert Drechsler (each, an "EXECUTIVE"), on his
own behalf and on behalf of his descendants, dependents, heirs, executors and
administrators and permitted assigns, past and present, in consideration for the
amounts payable to the undersigned under that Letter Agreement dated as of
November 15, 2002 (the "AGREEMENT") between each Executive and Triarc Restaurant
Holdings, LLC (the "COMPANY"), does hereby covenant not to sue or pursue any
litigation (or file any charge or otherwise correspond with any Federal, state
or local administrative agency) against, and waives, releases and discharges the
Company, Sybra, Inc., Arby's, Inc. and Triarc Companies, Inc. and each of their
respective assigns, affiliates, subsidiaries, parents, predecessors and
successors, and the past and present shareholders, employees, officers,
directors, representatives and agents or any of them (collectively, the "Company
GROUP"), from any and all claims, demands, rights, judgments, defenses, actions,
charges or causes of action whatsoever, of any and every kind and description,
whether known or unknown, accrued or not accrued, that each Executive ever had,
now has or shall or may have or assert as of the date of this General Release
against any of them, including, without limiting the generality of the
foregoing, any claims, demands, rights, judgments, defenses, actions, charges or
causes of action related to employment or termination of employment or that
arise out of or relate in any way to each of their Employment Agreements (as
defined in the Agreement) or to the Age Discrimination in Employment Act of 1967
("ADEA), as amended, the Older Workers Benefit Protection Act, Title VII of the
Civil Rights Act of 1964, as amended, and other Federal, state and local laws
relating to discrimination on the basis of age, sex or other protected class,
all claims under Federal, state or local laws for express or implied breach of
contract, wrongful discharge, defamation, intentional infliction of emotional
distress, and any related claims for attorneys' fees and costs; provided,
however, that nothing herein shall release any member of the Company Group from
any of its obligations under the Agreement or any rights to indemnification
under any charter or by-laws (or similar documents) of any member of the Company
Group or impair the right or ability of the Executive Releasees to enforce the
terms thereof. Each Executive further agrees that this General Release and
Covenant to Sue may be pleaded as a full defense to any action, suit or other
proceeding covered by the terms hereof which is or may be initiated, prosecuted
or maintained by the Executive, his heirs or assigns. Notwithstanding the
foregoing, each Executive understands and confirms that he is executing this
General Release and Covenant Not to Sue voluntarily and knowingly, and this
Covenant Not to Sue shall not affect the Executive's right to claim otherwise
under ADEA.
The Company Group, on its own behalf and on behalf of its assigns,
affiliates, subsidiaries, parents, predecessors and successors, and its past and
present shareholders, employees, officers, directors, representatives and agents
or any of them, does hereby covenant
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not to sue or pursue any litigation (or file any charge or otherwise correspond
with any Federal, state or local administrative agency) against, and waives,
releases and discharges each Executive and his heirs, successors and assigns,
descendants, dependents, executors and administrators, past and present, and any
of his affiliates and each of them (collectively, the "EXECUTIVE RELEASEES")
from any and all claims, demands, rights, judgments, defenses, actions, charges
or causes of action whatsoever, of any and every kind and description, whether
known or unknown, accrued or not accrued, that the Company or any of its
subsidiaries ever had, now has or shall or may have or assert as of the date of
this General Release against any of them, including, without limiting the
generality of the foregoing, any claims, demands, rights, judgments, defenses,
actions, charges or causes of action related to employment or termination of
employment or that arise out of or relate in any way to each of their Employment
Agreements (as defined in the Agreement), PROVIDED, HOWEVER, that nothing herein
shall release the Executive Releasees from any obligations arising out of or
related in any way to Executive's obligations under the Agreement or impair the
right or ability of the Company to enforce the terms thereof.
This General Release shall be governed by and construed in accordance
with the laws of the State of New York, applicable to agreements made and to be
performed entirely within such State.
Each of the Executive and the Company acknowledge that they have
entered into this General Release knowingly and willingly and has had ample
opportunity to consider the terms and provisions of this General Release.
IN WITNESS WHEREOF, the parties hereto have caused this General Release
to be executed on this _____ day of __________________, 2002.
_______________________________
John A. Bicks
______________________________
Robert H. Drechsler
TRIARC RESTAURANT HOLDINGS, LLC
By: ____________________________
Name:
Title:
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