EXHIBIT 2.2
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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
Telephone: (212) 373-3000
Facsimile: (212) 757-3990
Attorneys for Triarc Companies
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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: Chapter 11
:
: Case No. 02-10485 (PCB)
In re: : Case No. 02-10486 (PCB)
: Case No. 02-10488 (PCB)
:
: (Jointly Administered)
ICH CORPORATION, et al., :
:
:
Debtors. :
:
:
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FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER UNDER SECTION 1129(a) OF THE BANKRUPTCY
CODE AND RULE 3020 OF THE BANKRUPTCY RULES CONFIRMING
TRIARC COMPANIES, INC.'S THIRD AMENDED JOINT PLAN OF RE-
ORGANIZATION UNDER CHAPTER 11 FOR ICH CORPORATION, SYBRA, INC.
AND SYBRA OF CONNECTICUT, INC., DATED NOVEMBER 22, 2002
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RECITALS
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A. On August 8, 2002, this Court terminated, as to only Triarc
Companies, Inc. ("Triarc"), the exclusive periods of ICH Corporation, Sybra,
Inc. and Sybra of Connecticut, Inc. (collectively, the "Debtors"); thereafter,
the Debtors and Triarc filed their competing chapter 11 plans (the "Plans") and
related disclosure statements (the "Disclosure Statements").
B. Triarc filed its Third Amended Plan Joint Plan of
Reorganization for ICH Corporation, Sybra, Inc. and Sybra of Connecticut, Inc.,
dated November 22, 2002 (as
amended or modified to date, the "Triarc Plan") and the Third Amended Disclosure
Statement For Triarc Companies, Inc.'s Third Amended Joint Plan of
Reorganization for ICH Corporation, Sybra, Inc. and Sybra of Connecticut, Inc.,
dated November 15, 2002 (as amended or modified to date, the "Triarc Disclosure
Statement"). (1)
C. The Debtors filed their Third Amended Joint Plan of
Reorganization by ICH Corporation, Sybra, Inc., and Sybra of Connecticut, Inc.,
dated November 21, 2002 (as amended or modified to date, the "Debtors' Plan")
and the Third Amended Disclosure Statement to Accompany Third Amended Joint Plan
of Reorganization of ICH Corporation, Sybra, Inc., and Sybra of Connecticut,
Inc., dated November 21, 2002 (the "Debtors' Disclosure Statement").
D. On October 24, 2002, this Court entered an order (the
"Disclosure Statement and Solicitation Procedures Order") (a) approving the
Disclosure Statements, (b) scheduling a hearing on confirmation of the Plans,
(c) establishing deadlines and procedures for filing objections to confirmation
of the Plans, (d) approving (1) solicitation packages and procedures for
distributions, and (2) forms of ballot, (e) establishing procedures for
solicitation and for tabulation of votes, and (f) establishing notice and
procedures for assuming or rejecting executory contracts and unexpired leases.
E. As required by the Disclosure Statement and Solicitation
Procedures Order, Triarc and the Debtors, through their noticing agent,
Bankruptcy Services, LLC ("BSI") on or about October 25, 2002, timely mailed the
Information Packages containing a copy of the Disclosure Statement and
Solicitation Procedures Order, the
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1 Unless otherwise defined herein, capitalized terms used herein shall have
the meanings ascribed to them in the Triarc Plan (a copy of which is
annexed hereto as Exhibit A). Any capitalized term used in the Triarc Plan
or in this Confirmation Order that is not defined in the Triarc Plan or in
this Confirmation Order, but that is used in title 11 of the United States
Code, 11 U.S.C. Sections 101 ET SEQ. (the "Bankruptcy Code"), or in the
Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), shall have
the meaning ascribed to them in the Bankruptcy Code or the Bankruptcy
Rules, as the case may be.
2
Confirmation Hearing Notice, the Debtors' Disclosure Statement, the Debtors'
Plan, the Triarc Disclosure Statement, the Triarc Plan and the Committee
Solicitation Letter, together with all exhibits thereto, to the holders of
Claims and Equity Interests and those entitled to be served under Bankruptcy
rules 2002 and 3017. An Affidavit of service has been filed with the Court.
F. Also on or about October 25, 2002, pursuant to the terms of
the Disclosure Statement and Solicitation Procedures Order, the Debtors and
Triarc, through their noticing agent, BSI, timely mailed (i) to all holders of
Claims in classes entitled to vote to accept or reject the Plan an appropriate
form of Ballot and a Ballot return envelope as part of their Information
Packages and (ii) to all holders of Claims and Equity Interests not entitled to
vote a notice of non-voting status.
G. On November 20, 2002, BSI filed the Certification and
Transaction of voting attesting to and certifying the method and results of the
ballot tabulation for the Class of Claims voting to accept or reject the
Debtor's Plan and the Triarc Plan (the "Voting Report").
H. Triarc received five objections to confirmation of its Plan:
one from the Creditors Committee (the "Creditors Committee Objection"); one from
Wells Fargo, a Secured Lender (the "Wells Fargo Objection"); one from Finova
Capital Corporation (the "Finova Objection"), a Secured Lender; one from J.
Corman Family Limited Partnership (the "J. Corman Objection"), an unsecured
creditor, and one from Bowie, County of Brazos, City of College Station, College
Station ISD, County of Denton, City of the Colony, County of Erath, County of
Leon, Buffalo ISD, Midland CAD (the "Texas Tax Authority Objection"). The Finova
Objection has been resolved as stated on the record at the Confirmation Hearing.
The Texas Tax Authority Objection has been consensually resolved in its
entirety, as set forth in subparagraph ____ hereof. The Wells Fargo Objection,
the Creditors Committee Objection and the J. Corman Objection have been resolved
or overruled.
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I. On November 21, 2002, Triarc filed (i) a memorandum of law
(the "Confirmation Memorandum") and (ii) the Declaration of Jon P. May (the "May
Declaration").
J. The Confirmation Hearing was held on November 25, 2002 at
11:00 a.m. NOW, THEREFORE, based upon the Court's review of the Confirmation
Memorandum, the May Declaration and the Voting Report previously filed with the
Court and upon (i) all of the evidence proffered or adduced and arguments of
counsel made at the Confirmation Hearing and (ii) the entire record of the
chapter 11 cases (the "Chapter 11 Cases"), and after due deliberation thereon
and good cause appearing therefor:
FINDINGS OF FACT AND CONCLUSIONS OF LAW (2)
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IT IS HEREBY FOUND AND DETERMINED THAT:
1. EXCLUSIVE JURISDICTION; VENUE; CORE PROCEEDING (28
U.S.C. SECTIONS 157, 1334(a), 1408 AND 1409). This Court has jurisdiction over
the Chapter 11 Cases pursuant to 28 U.S.C. Sections 157 and 1334. Venue is
proper before the Court pursuant to 28 U.S.C. Sections 1408 and 1409.
Confirmation of the Triarc Plan is a core proceeding under 28 U.S.C. Section
157(b)(2), and this Court has exclusive jurisdiction to determine whether the
Triarc Plan complies with the applicable provisions of the Bankruptcy Code and
should be confirmed.
2. JUDICIAL NOTICE. This Court takes judicial notice of
the docket of the Chapter 11 Cases maintained by the Clerk of the Court and/or
its duly-appointed agent, including, without limitation, all pleadings and other
documents filed, all orders entered, and all evidence and arguments made,
proffered or adduced at the hearings held
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2 Findings of fact shall be construed as conclusions of law and
conclusions of law shall be construed as findings of fact when
appropriate. SEE Fed. R. Bankr. P. 7052.
4
before the Court during the Chapter 11 Cases, including, without limitation, the
hearing to consider the adequacy of the Triarc Disclosure Statement.
3. BURDEN OF PROOF. Triarc, as proponent of the Triarc
Plan, has the burden of proving the elements of subsections 1129(a) and (b) of
the Bankruptcy Code by a preponderance of the evidence.
4. TRANSMITTAL AND MAILING OF MATERIALS; NOTICE. The
Information Package was transmitted and served in compliance with the Disclosure
Statement and Solicitation Procedures Order and the Bankruptcy Rules, and such
transmittal and service were adequate and sufficient. Adequate and sufficient
notice of the Confirmation Hearing and the other dates and hearings described in
the Disclosure Statement and Solicitation Procedures Order was given in
compliance with the Bankruptcy Rules and the Disclosure Statement and
Solicitation Procedures Order, and no other or further notice is or shall be
required.
5. TRIARC PLAN'S COMPLIANCE WITH THE APPLICABLE
PROVISIONS OF THE BANKRUPTCY CODE (11 U.S.C. SECTION 1129(a)(1)). As set forth
below, the Triarc Plan complies with the applicable provisions of the Bankruptcy
Code, thereby satisfying section 1129(a)(1) of the Bankruptcy Code.
(i) PROPER CLASSIFICATION OF CLAIMS AND EQUITY
INTERESTS (11 U.S.C. SECTIONS 1122, 1123(a)(1)). In addition to Administrative
Claims, Fee Claims and Priority Tax Claims, which need not be classified, the
Triarc Plan provides for the classification of Claims and Equity Interests into
seven (7) separate Classes (with additional subclasses) based upon differences
in the legal nature and/or priority of such Claims and Equity Interests. The
Claims or Equity Interests placed in each Class are substantially similar to
other Claims or Equity Interests, as the case may be, in such Class. Valid
business, factual and/or legal reasons exist for separately classifying the
various Classes of Claims and Equity Interests created under the Triarc Plan,
and,
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therefore, the Plan does not unfairly discriminate among holders of Claims or
Equity Interests. Thus, the Plan satisfies sections 1122 and 1123(a)(1) of the
Bankruptcy Code.
(ii) SPECIFICATION OF UNIMPAIRED CLASSES (11
U.S.C. SECTIONS 1123(a)(2)). Section IV of the Triarc Plan specifies that
Classes 1A, 1B, 1C, 3A, 3B, 3C, 6A, 6B, 7B and 7C are not impaired, thereby
satisfying section 1123(a)(2) of the Bankruptcy Code.
(iii) SPECIFICATION OF TREATMENT OF IMPAIRED
CLASSES (11 U.S.C. SECTIONS 1123(a)(3)). Section IV of the Triarc Plan
designates Classes 2A, 2B, 2C, 4, 5 and 7A as impaired and specifies the
treatment of Claims and Equity Interests in those Classes, thereby satisfying
section 1123(a)(3) of the Bankruptcy Code.
(iv) EQUAL TREATMENT WITHIN CLASSES (11 U.S.C.
SECTIONS 1123(a)(4)). The Triarc Plan in Section IV provides for the same
treatment by Triarc for each Claim or Equity Interest in a particular Class
unless the holder of a particular Claim or Equity Interest in such Class has
agreed to a less favorable treatment of its Claim or Equity Interest, thereby
satisfying section 1123(a)(4) of the Bankruptcy Code.
(v) IMPLEMENTATION OF THE TRIARC PLAN (11 U.S.C.
SECTIONS 1123(a)(5)). The Triarc Plan provides adequate and proper means for
implementation of the Triarc Plan, thereby satisfying section 1123(a)(5) of the
Bankruptcy Code.
(vi) CHARTER PROVISIONS (11 U.S.C. SECTIONS
1123(a)(6)). Pursuant to Sections VII.B and IX.E of the Triarc Plan, the
certificates of incorporation, which were filed with the Court on November 8,
2002 as part of the Plan Supplement, prohibit the issuance of non-voting equity
securities, thereby satisfying section 1123(a)(6) of the Bankruptcy Code.
(vii) SELECTION OF OFFICERS AND DIRECTORS (11
U.S.C. SECTIONS 1123(a)(7)). Section VII.C of the Triarc Plan provides that the
Plan Administrator shall serve as the sole officer and sole director of
Reorganized ICH. Section VI.D.4 of the Triarc Plan further provides that the
Plan Administrator shall be compensated from the
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ICH Operating Reserve pursuant to the terms of the Plan Administrator Agreement,
which was filed with the Court on November 8, 2002 as part of the Plan
Supplement.
(viii) Section VIII.B of the Triarc Plan provides
that the initial board of directors of Reorganized Sybra will consist of four
(4) members, and they are as follows: Nelson Peltz, Peter W. May, Michael C.
Howe and Jonathan P. May, none of which is currently affiliated with the
Debtors. The Board of Directors of Reorganized Sybra will select a Chairman of
the Board of Directors at its initial meeting. Article VIII.B of the Triarc Plan
further provides that the initial board of directors of Reorganized Sybra Conn.
will consist of three (3) members, and they are as follows: Brian Schorr,
Kenneth A. Thomas and Curtis S. Gimson, none of which is currently affiliated
with the Debtors. The Board of Directors of Reorganized Sybra Conn. will select
a Chairman of the Board of Directors at its initial meeting. The Triarc Plan
also provides that the Officers of Reorganized Sybra and Sybra Conn. will be
disclosed prior to the Confirmation Hearing. The Officers were disclosed on
November 15, 2002, as Michael Howe, Chief Executive Officer, David J. Fitnitch,
Senior Vice President/Chief Operating Officer, Glen V. Freter, Senior Vice
President/Chief Financial Officer and F. Edward Chappell, Senior Vice
President/Business Development. John Bicks and Robert Drechsler will continue
their employment for one year in titles to be determined. The foregoing
provisions of the Triarc Plan for the selection of directors and officers are
consistent with the interests of creditors and equity holders and with public
policy, thereby satisfying section 1123(a)(7) of the Bankruptcy Code.
(ix) RULE 3016(a) OF THE BANKRUPTCY RULES. The
Triarc Plan is dated and identifies the entity submitting it, thereby satisfying
Rule 3016(a) of the Bankruptcy Rules.
6. TRIARC'S COMPLIANCE WITH THE APPLICABLE PROVISIONS OF
THE BANKRUPTCY CODE (11 U.S.C. SECTIONS 1129(a)(2)). Triarc has complied with
the applicable
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provisions of the Bankruptcy Code, thereby satisfying section 1129(a)(2) of the
Bankruptcy Code. Specifically:
(i) Triarc is a proper proponent of the Triarc
Plan under section 1121(c) of the Bankruptcy Code;
(ii) Triarc has complied with applicable
provisions of the Bankruptcy Code, except as otherwise provided or permitted by
orders of the Court; and
(iii) Triarc has complied with the applicable
provisions of the Bankruptcy Code, the Bankruptcy Rules, and the Disclosure
Statement and Solicitation Procedures Order transmitting the Confirmation
Hearing Notice and the Information Packages and in soliciting and tabulating
votes on the Triarc Plan.
7. PLAN PROPOSED IN GOOD FAITH (11 U.S.C. SECTIONS
1129(a)(3)). Triarc has proposed the Plan in good faith and not by any means
forbidden by law, thereby satisfying section 1129(a)(3) of the Bankruptcy Code.
In determining that the Triarc Plan has been proposed in good faith, the Court
has examined the totality of the circumstances surrounding the filing of the
Chapter 11 Cases and the formulation of the Triarc Plan. The Triarc Plan clearly
has been proposed with the legitimate and honest purposes of reorganizing an
continuing Sybra and Sybra Conn. as going concerns, liquidating ICH and
providing substantial distributions to the Debtors' respective creditors (100% +
to Sybra and Sybra Conn. unsecured creditors; 90% + to ICH unsecured creditors).
The Triarc Plan furthers the chapter 11 goals of restructuring the Debtors'
obligations and businesses in a manner that makes economic and business sense
and maximizes value to the Debtors' estates.
8. PAYMENTS FOR SERVICES OR COSTS AND EXPENSES (11
U.S.C. SECTIONS 1129(a)(4)). Except as otherwise provided or permitted by the
Triarc Plan, including, without limitation, pursuant to Sections III.C
(governing payment of the reasonable fees and expenses of the Creditors'
Committee or other Professionals and X.H (governing payment of the reasonable
fees and expenses of Professionals that are incurred by the
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Reorganized Debtors after entry of this Confirmation Order), any payment made or
to be made by the Debtors or Triarc for services or for costs and expenses in or
in connection with the Chapter 11 Cases, or in connection with the Triarc Plan
and incident to the Chapter 11 Cases, have been approved by, or are subject to
the approval of, the Court as reasonable, thereby satisfying section 1129(a)(4)
of the Bankruptcy Code. Section XI of the Triarc Plan provides the Court will
retain jurisdiction after the Effective Date to hear and determine all
applications for allowance of compensation or reimbursement of expenses of
Professionals pursuant to Sections 330, 331 and 503(b) of the Bankruptcy Code or
the Triarc Plan.
9. DIRECTORS, OFFICERS AND INSIDERS (11 U.S.C. SECTIONS
1129(a)(5)). The Debtors have complied with section 1129(a)(5) of the Bankruptcy
Code.
(i) SELECTION OF OFFICERS AND DIRECTORS (11
U.S.C. SECTIONS 1129(a)(5). Section VII.C of the Triarc Plan provides that the
Plan Administrator shall serve as the sole officer and sole director of
Reorganized ICH. Section VI.D.4 of the Triarc Plan further provides that the
Plan Administrator shall be compensated from the ICH Operating Reserve pursuant
to the terms of the Plan Administrator Agreement, which was filed with the Court
on November 8, 2002 as part of the Plan Supplement.
(ii) Section VIII.B of the Triarc Plan provides
that the initial board of directors of Reorganized Sybra will consist of four
(4) members, and they are as follows: Nelson Peltz, Peter W. May, Michael C.
Howe and Jonathan P. May, none of which is currently affiliated with the
Debtors. The Board of Directors of Reorganized Sybra will select a Chairman of
the Board of Directors at its initial meeting. Section VIII.B of the Triarc Plan
further provides that the initial board of directors of Reorganized Sybra Conn.
will consist of three (3) members, and they are as follows: Brian Schorr,
Kenneth A. Thomas and Curtis S. Gimson, none of which is currently affiliated
with the Debtors. The Board of Directors of Reorganized Sybra Conn. will select
a Chairman of the Board of Directors at its initial meeting. The Triarc Plan
also
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provides that the Officers of Reorganized Sybra and Sybra Conn. will be
disclosed prior to the Confirmation Hearing. The Officers were disclosed on
November 15, 2002, as Michael Howe, Chief Executive Officer, David J. Fitnitch,
Senior Vice President/Chief Operating Officer, Glen V. Freter, Senior Vice
President/Chief Financial Officer and F. Edward Chappell, Senior Vice
President/Business Development. John Bicks and Robert Drechsler will continue
their employment for one year in titles to be determined. The foregoing
provisions of the Triarc Plan for the selection of directors and officers are
consistent with the interests of creditors and equity holders and with public
policy, thereby satisfying section 1129(a) (5) of the Bankruptcy Code.
10. NO RATE CHANGES (11 U.S.C. SECTIONS 1129(a)(6)). The
Debtors' prices are not subject to governmental regulation. Thus, section
1129(a)(6) of the Bankruptcy Code is not applicable in the Chapter 11 Cases.
11. BEST INTERESTS OF CREDITORS TEST (11 U.S.C. SECTIONS
1129(a)(7)). The Triarc Plan satisfies section 1129(a)(7) of the Bankruptcy
Code. The evidence proffered or adduced at the Confirmation Hearing, including
the proffered testimony, and the affidavit, of Jon P. May, Senior Vice President
of Triarc, and the proffered testimony of the Debtors' representative, (i) is
persuasive and credible, (ii) has not been controverted by other evidence or
challenged, and (iii) establishes that each holder of a Claim or Equity Interest
in an impaired Class either (x) has accepted the Triarc Plan or (y) will receive
or retain under the Triarc Plan, on account of such Claim or Equity Interest,
property of a value, as of the Effective Date of the Triarc Plan, that is not
less than the amount that it would receive if the Debtors were liquidated under
chapter 7 of the Bankruptcy Code.
12. ACCEPTANCE BY CERTAIN CLASSES (11 U.S.C. SECTIONS
1129(a)(8)). Each Class of Claims that is impaired under, and entitled to vote
on, the Triarc Plan (i.e. Classes 2A, 2B, 2C, 4 and 5) has voted to accept the
Triarc Plan in accordance with section 1126(c) of the Bankruptcy Code. Classes
1A, 1B, 1C, 3A, 3B, 3C, 6A, 6B, 7B
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and 7C are unimpaired under the Triarc Plan and are conclusively presumed to
have accepted the Triarc Plan under section 1126(f) of the Bankruptcy Code.
Class 7A is not entitled to receive or retain any property under the Triarc
Plan, and, therefore, is deemed to have rejected the Triarc Plan pursuant to
section 1126(g) of the Bankruptcy Code. Although section 1129(a)(8) of the
Bankruptcy Code has not been satisfied with respect to Class 7A, the Triarc Plan
is confirmable because it satisfies section 1129(b) of the Bankruptcy Code with
respect to such Class, as found below.
13. TREATMENT OF PRIORITY CLAIMS (11 U.S.C. SECTIONS
1129(a)(9)). The Triarc Plan's treatment of Allowed Administrative Claims,
Allowed Other Priority Claims and Allowed Priority Tax Claims satisfies the
requirements of sections 1129(a)(9)(A), (B), and (C) of the Bankruptcy Code,
respectively. Sections III.A and IV.A of the Triarc Plan provides that, except
to the extent that a holder of an Allowed Administrative Claim or Allowed Other
Priority Claim agrees otherwise, each Allowed Administrative Claim and Other
Priority Claims will be paid in Cash. In the case of Allowed Priority Tax
Claims, the Triarc Plan provides, unless the holder of an Allowed Priority Tax
Claim agrees otherwise, each holder of an Allowed Priority Tax Claim shall
either receive payment in full in Cash or equal annual 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, over a six-year period
from the date of the assessment of such Allowed Priority Tax Claim.
14. ACCEPTANCE OF AT LEAST ONE IMPAIRED CLASS (11 U.S.C.
SECTIONS 1129(a)(10)). Five (5) voting impaired Classes under the Triarc Plan
(I.E., Classes 2A,
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2B, 2C, 4 and 5) have voted to accept the Triarc Plan in requisite numbers and
amounts without the need to include any acceptance of the Triarc Plan by any
insider.
15. FEASIBILITY (11 U.S.C. SECTIONS 1129(a)(11)). As part
of an analysis to determine whether the Debtors have the ability to meet their
obligations under the Triarc Plan, Triarc prepared projections of the financial
performance for Reorganized Sybra and Reorganized Sybra Conn. for 2003, 2004 and
2005. These projections, and the assumptions on which they are based, are
included in the Financial Projections attached to the Triarc Disclosure
Statement as Exhibit D. Based upon such projections, Triarc believes that the
Reorganized Debtors will be able to fulfill all of their obligations under the
Triarc Plan and, therefore, that confirmation of the Triarc Plan is not likely
to be followed by liquidation or the need for further reorganization of the
Debtors. The Triarc Disclosure Statement and the evidence proffered or adduced
at the Confirmation Hearing (i) are persuasive and credible, (ii) have not been
controverted by other evidence or challenged, and (iii) establish that the
Triarc Plan is feasible, thus satisfying the requirements of section 1129(a)(11)
of the Bankruptcy Code.
16. PAYMENT OF CERTAIN FEES (11 U.S.C. SECTIONS
1129(a)(12)). All fees payable on or before the Effective Date under 28 U.S.C.
ss. 1930 either have been paid or will be paid on the Effective Date pursuant to
Section XII.A of the Triarc Plan. Accordingly, the Triarc Plan satisfies section
1129(a)(12) of the Bankruptcy Code.
17. CONTINUATION OF RETIREE BENEFITS (11 U.S.C. SECTIONS
1129(a)(13)). Pursuant to Section IV.D of the Triarc Plan, all retiree benefits
will continue at levels established pursuant to section 1114 of the Bankruptcy
Code. Thus, the Triarc Plan satisfies section 1129(a)(13) of the Bankruptcy
Code.
18. FAIR AND EQUITABLE; NO UNFAIR DISCRIMINATION (11
U.S.C. SECTIONS 1129(b)). Class 7A is a impaired Class that has not accepted the
Triarc Plan. This is the only Class that has not accepted, or been deemed to
have not accepted, the Triarc Plan. Triarc presented uncontroverted evidence at
the Confirmation Hearing that the
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Triarc Plan does not discriminate unfairly and is fair and equitable with
respect to Class 7A, as required by section 1129(b)(1) of the Bankruptcy Code.
Thus, although section 1129(a)(8) has not been satisfied with respect to Class
7A, the Triarc Plan is confirmable because the Triarc Plan satisfies section
1129(b) of the Bankruptcy Code with respect to Class 7A.
19. GOOD FAITH SOLICITATION (11 U.S.C. SECTIONS 1125(e)).
Based upon the record before the Court, Triarc and the balloting agent, BSI,
have solicited votes on the Triarc Plan in good faith and in compliance with the
applicable provisions of the Bankruptcy Code and are entitled to the protections
afforded by section 1125(e) of the Bankruptcy Code and the exculpatory and
injunctive provisions set forth in Section X.E of the Triarc Plan.
20. NO OBJECTIONS TO ASSUMED CONTRACTS AND LEASES. No
non-Debtor party to any of the executory contracts and unexpired leases pursuant
to Section VI of the Triarc Plan has objected to its assumption.
21. ICH HAS CORPORATE AUTHORITY TO EXECUTE THE NEWCO
PURCHASE AND FUNDING AGREEMENT. ICH has full corporate power and authority to
execute the NewCo Purchase and Funding Agreement and all other documents
contemplated thereby, and to consummate the transactions contemplated by the
NewCo Purchase and Financing Agreement. No consents or approvals, other than
those expressly provided for in the NewCo Purchase and Funding Agreement, are
required for ICH to consummate such transactions.
22. ASSET SALE IS IN THE BEST INTERESTS OF DEBTORS'
ESTATES AND CREDITORS. Approval of ICH's entry into the NewCo Purchase and
Funding Agreement and the sale of the ICH Assets (the "Asset Sale") at this time
are in the best interests of the Debtors' estates and their creditors and (i) a
good, sufficient, and sound business purpose and justification and (ii)
compelling circumstances for the Asset Sale pursuant to section 1123(a)(5)(d) of
the Bankruptcy Code have been demonstrated.
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23. NEWCO PURCHASING AND FUNDING AGREEMENT WAS NEGOTIATED
IN GOOD FAITH. The NewCo Purchase and Funding Agreement was proposed and entered
into by and between Triarc Restaurant Holdings, LLC ("NewCo") and the Debtors
without collusion and in good faith. NewCo is a good faith purchaser under
section 363(m) of the Bankruptcy Code and, as such, is entitled to all of the
protections afforded thereby. Neither Triarc, NewCo nor the Debtors have engaged
in any conduct that would cause or permit the NewCo Purchase and Funding
Agreement to be avoided under section 363(n) of the Bankruptcy Code.
24. NEWCO WILL ACT IN GOOD FAITH. In the absence of a
stay pending appeal, NewCo will be acting in good faith within the meaning of
section 363(m) of the Bankruptcy Code in closing the transactions contemplated
by the NewCo Purchase and Funding Agreement at any time after the entry of this
Order.
25. NEWCO PURCHASE AND FUNDING AGREEMENT IS THE HIGHEST
AND BEST OFFER. The NewCo Purchase and Funding Agreement is the highest and best
offer for the ICH Assets and will provide a greater recovery for the Debtors'
estates than would be provided by any other practical, available, or offered
alternative, including, without limitation, under the Debtors' Plan.
26. FAIR CONSIDERATION. The consideration provided by
NewCo for the ICH Assets pursuant to the NewCo Purchase and Funding Agreement
constitutes reasonably equivalent value and fair consideration under the
Bankruptcy Code and applicable non-bankruptcy law.
27. LEGAL, VALID AND EFFECTIVE TRANSFER. The transfer of
the ICH Assets to Newco pursuant to the NewCo Purchase and Funding Agreement
will be a legal, valid, and effective transfer of the ICH Assets, and vests or
will vest NewCo with all right, title, and interest of ICH to the ICH Assets
free and clear of mortgages, security interests, conditional sales or other
title retention agreements, pledges, liens, claims, judgments, demands,
encumbrances (including, without limitation, claims and
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encumbrances that purport to give to any party a right or option to effect any
forfeiture, modification or termination of ICH's or NewCo's interests in the ICH
Assets in respect of taxes, easements, restrictions, rights of first refusal,
charges or interests of any kind or nature, if any, including, but not limited
to, any restriction on the use, voting, transfer, receipt of income or other
exercise of any attributes of ownership (collectively, the "Interests")), with
the exception of those Interests expressly assumed in connection with the NewCo
Purchase and Funding Agreement, all such non-assumed Interest(s) to attach to
the Debtors' interest in the proceeds of the Asset Sale (the "Sale Proceeds") in
order of priority as set forth in the Triarc Plan.
28. ICH ASSETS ARE FREE AND CLEAR OF ALL INTERESTS. ICH
may sell the ICH Assets free and clear of all Interests because, in each case,
one or more of the standards set forth in section 363(f)(1)-(5) of the
Bankruptcy Code has been satisfied.
29. SATISFACTION OF CONFIRMATION REQUIREMENTS. The Triarc
Plan satisfies the requirements for confirmation set forth in subsections
1129(a) and (b) of the Bankruptcy Code.
30. RETENTION OF JURISDICTION. The Court may properly
retain jurisdiction over the matters set forth in Section X of the Triarc Plan,
the NewCo Purchasing and Funding Agreement and paragraph 67 below.
31. SATISFACTION OF 11 U.S.C. SECTIONS 1129(c). The
Triarc Plan satisfies the requirement for confirmation set forth in subsection
1129(c) of the Bankruptcy Code, as, among other things, creditors prefer the
Triarc Plan to the Debtors' Plan as evidenced by the Voting Report.
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DECREES
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NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, DECREED AND
DETERMINED THAT:
APPROVAL OF THE TRIARC PLAN
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32. CONFIRMATION. The Triarc Plan (a copy of which is
annexed hereto as Exhibit A), is approved and confirmed under section 1129 of
the Bankruptcy Code. All objections to the Triarc Plan not heretofore withdrawn
are overruled in their entirety.
33. PROVISIONS OF THE TRIARC PLAN AND ORDER NON-SEVERABLE
AND MUTUALLY DEPENDENT. The provisions of the Triarc Plan and this Confirmation
Order, including the findings of fact and conclusions of law set forth herein,
are non-severable and mutually dependent.
34. THE TRIARC PLAN CLASSIFICATION CONTROLLING. The
classification of Claims and Equity Interests for purposes of the distributions
to be made under the Triarc Plan shall be governed solely by the terms of the
Triarc Plan. The classifications set forth on the Ballots tendered to or
returned by the Debtors' creditors and equity holders in connection with voting
on the Triarc Plan (i) were set forth on the Ballots solely for purposes of
voting to accept or reject the Triarc Plan, (ii) do not necessarily represent,
and in no event shall be deemed to modify or otherwise affect, the actual
classification of such Claims or Equity Interests under the Triarc Plan for
distribution purposes, and (iii) shall not be binding on the Debtors, their
estates, the Reorganized Debtors or Triarc.
35. BINDING EFFECT. Pursuant to section 1141 of the
Bankruptcy Code, effective as of the Confirmation Date, but subject to the
occurrence of the Effective Date, and except as expressly provided in the Triarc
Plan or this Confirmation Order, the provisions of the Triarc Plan (including
the exhibits to, and all documents and agreements executed pursuant to, the
Triarc Plan) and the Confirmation Order shall be binding on (i) the Debtors,
(ii) Reorganized Debtors (iii) all holders of Claims against and Equity
16
Interests in the Debtors, whether or not impaired under the Triarc Plan and
whether or not, if impaired, such holders accepted the Triarc Plan, and (iv)
each person acquiring property under the Triarc Plan.
36. REVESTING OF ASSETS. Pursuant to Section X.C. of the
Triarc Plan, 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. Estates shall be revested in Reorganized Sybra and
Reorganized Sybra Conn., respectively, on the Effective Date. All of the
property of the Reorganized Debtors' Estates shall be revested free and clear of
all claims, liens, encumbrances, charges and other interests of creditors and
equity security holders. The Reorganized Debtors may operate their businesses
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 Triarc Plan and
this Order.
37. INJUNCTION. Except as otherwise expressly provided in
the Triarc Plan, or under any assumed executory contract or unexpired lease or
Secured Loan Document, this Confirmation Order, or a separate order of the
Court, shall provide, 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 or in any place, any
action or other proceeding of any kind against the Debtors or with respect to
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 such Claim or Equity Interest; (c) creating,
perfecting or enforcing any encumbrance of any kind against the Debtors or
against the 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
17
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.
38. CONTINUATION OF AUTOMATIC STAY. 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 through and including the Effective Date.
39. REJECTED AND ASSUMED CONTRACTS AND LEASES. Except as
otherwise provided in the Triarc Plan, or in any contract, instrument, release
or other agreement or document entered into in connection with the Triarc Plan,
(i) each of the executory contracts and unexpired leases on Schedule A to the
Triarc Plan are assumed by the Reorganized Debtor party thereto, (ii) each of
the executory contracts and unexpired leases on Schedule B to the Triarc Plan
are 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. 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. This Order shall constitute an order of
the Court approving the rejections and assumptions described in Section VI of
the Triarc Plan, pursuant to section 365 of the Bankruptcy Code, as of the
Effective Date.
18
40. GENERAL AUTHORIZATIONS; PLAN MODIFICATIONS. Pursuant
to section 1142(b) of the Bankruptcy Code, (i) the Debtors, (ii) Reorganized
Debtors, and (iii) all other necessary parties are authorized and empowered to
(x) execute and deliver any instrument, agreement or document and (y) perform
any act that is necessary, desirable, or required to comply with the terms and
conditions of the Triarc Plan and consummation of the Triarc Plan, and are
authorized and empowered, without limitation, to take all actions necessary or
appropriate to enter into, implement, and consummate the contracts, instruments,
and other agreements or documents created in connection with the Triarc Plan.
After entry of this Order, the Reorganized Debtors may amend or modify the
Triarc Plan or remedy any defect or omission or reconcile any inconsistency in
the Triarc Plan in such a manner as may be necessary to carry out the purpose
and intent of the Triarc Plan. Subject to Triarc's right to amend, modify or
withdraw the Triarc Plan prior to entry of this Order, any provision of the
Triarc Plan that is determined by the Court to cause the Triarc Plan to be not
comfortable shall be ineffective without affecting in any way the remaining
provisions of the Triarc Plan.
41. PLAN SUPPLEMENT APPROVED. The forms, terms and
provisions of each of the Plan Supplement documents (collectively, the "Plan
Documents") filed with the Court on November 8, 2002 are hereby approved. The
Reorganized Debtors and Triarc are hereby authorized, until the Triarc Plan
shall have become effective in accordance with its terms, to make non-material
amendments, supplements or modifications to any of the Plan Documents,
consistent with the terms of each of the Plan Documents. Each of the Plan
Documents shall constitute a legal, valid, binding and authorized obligation of
the respective parties thereto, enforceable in accordance with its terms (except
as enforceability may be limited by any bankruptcy or insolvency proceeding
filed by any party thereto subsequent to the date of the execution of such
document).
19
42. ICH PLAN ADMINISTRATOR APPROVED. From and after the
Effective Date, Hobart G. Truesdell and Walker, Truesdell, Radick & Associates,
Inc. are approved to serve as the ICH Plan Administrator pursuant to the terms
of the ICH Plan Administrator Agreement.
43. AUTHORIZATIONS UNDER APPLICABLE LAW. The Debtors are
authorized, empowered, and directed pursuant to section 303 of the Delaware
General Corporation Law, or such other similar law that may apply in the
jurisdiction where such Debtor is incorporated, to take any and all actions
necessary or desirable to implement the transactions contemplated by the Triarc
Plan and this Order, all without further corporate action or action of the
directors or stockholders of the Reorganized Debtors.
44. 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 the Triarc Plan shall not be subject to any
stamp, real estate transfer, recording or other similar tax or governmental
assessment, and this 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.
45. BAR DATE FOR ADMINISTRATIVE CLAIMS. Except as
otherwise ordered by this Court, all holders of asserted Administrative Claims
shall submit proofs of Claim on or before the 30th day after the Confirmation
Date (the "Administrative Claims Bar Date") or be forever barred from doing so.
The Reorganized Debtors shall have 30 days (or such longer period as may be
allowed by order of this Court) following the Administrative Claims Bar Date to
review and object to such Administrative Claims and serve such objections upon
the holders of such Administrative Claims. The following persons or entities
need not file a proof of Administrative Claim:
20
(i) any person who, or entity which, has already
filed a proof of Administrative Claim against the Debtors with the Clerk of the
Court;
(ii) any holder of a Claim for compensation for
services rendered or reimbursement of expenses incurred through and including
the Confirmation Date under sections 327, 328, 330, 331, or 503(b) of the
Bankruptcy Code; and
(iii) any holder of an Administrative Claim that
has heretofore been deemed Allowed under the Triarc Plan or been Allowed by
order of the Court.
46. PROFESSIONAL COMPENSATION AND REIMBURSEMENT CLAIMS.
As provided in Section III.C of the Triarc Plan, all entities requesting
compensation or reimbursement 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 file and serve 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, an application for final allowance of compensation and
reimbursement of expenses no later than thirty (30) days after 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 an application for final allowance of such Fee Claim was served.
47. OBJECTIONS TO AND RESOLUTION OF CLAIMS AND EQUITY
INTERESTS. Except as otherwise provided in the Triarc Plan, 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 in the Triarc Plan, all objections shall
be litigated to a Final Order. Unless otherwise ordered by the Court, all such
objections shall be filed and served upon holders of the Claim of Equity
Interest objected to as soon as practicable, but in no event later than 60 days
after the Effective Date (or such later date as may be approved by the Court.)
The time frame
21
in which the Reorganized Debtors can object to Administrative
Clams shall be governed by paragraph 45 above.
APPROVAL OF THE NEWCO PURCHASE AND FUNDING AGREEMENT
----------------------------------------------------
48. APPROVAL OF THE NEWCO PURCHASE AND FUNDING AGREEMENT.
The Purchase and Funding Agreement, and all of the transactions contemplated
thereby be, and hereby are, approved in all respects.
49. DEBTORS AND AUTHORIZED TO CONSUMMATE THE ASSET SALE.
Pursuant to section 1123(a)(5)(D) of the Bankruptcy Code, the Debtors are
authorized and directed to consummate the Asset Sale, pursuant to and in
accordance with the terms and conditions of the NewCo Purchase and Funding
Agreement and the instruments and agreements contemplated thereby.
50. AUTHORITY TO DELIVER AND PERFORM UNDER THE NEWCO
PURCHASE AND FUNDING AGREEMENT. ICH is authorized and directed to execute and
deliver, and empowered to perform under, consummate and implement, the NewCo
Purchase and Funding Agreement, together with all additional instruments and
documents that may be reasonably necessary or desirable to implement the NewCo
Purchase and Funding Agreement, and to take all further actions as may
reasonably be requested by NewCo for the purpose of assigning, transferring,
granting, conveying and conferring to NewCo, or reducing to possession, the ICH
Assets, or as may be necessary or appropriate, to the performance of the
obligations as contemplated by the NewCo Purchase and Funding Agreement.
51. TRANSFER OF ICH ASSETS IS FREE AND CLEAR. Pursuant to
sections 105(a) and 1123(a)(5)(D) of the Bankruptcy Code, the ICH Assets shall
be transferred to NewCo, and upon consummation of the NewCo Purchase and Funding
Agreement, shall be, free and clear of (a) all Interests (as defined in
Paragraph 12 above), and (b) all debts
22
arising under, relating to, or in connection with any acts of ICH, claims (as
that term is defined in section 101(5) of the Bankruptcy Code), obligations,
demands, guaranties, options, rights, contractual commitments, restrictions,
interest and matters of any kind and nature, whether arising prior to or
subsequent to the commencement of the Chapter 11 cases, and whether imposed by
agreement, understanding, law, equity or otherwise (including, without
limitation, claims and encumbrances (i) that purport to give to any party a
right or option to effect any forfeiture, modification, right of first refusal,
or termination of any of ICH's or NewCo's interests in the ICH Assets, or any
similar rights, or (ii) in respect of taxes) (collectively, "Claims"), with the
exception of those Claims and Interests expressly assumed in connection with the
NewCo Purchase and Funding Agreement, with all such non-assumed Interests and
Claims to attach to ICH's interest in the proceeds of the Asset Sale in the
order of their priority, with the same validity, force and effect which they now
have as against the ICH Assets, subject to any claims and defenses ICH may
possess with respect thereto.
52. HOLDERS OF CLAIMS AND INTERESTS ARE ENJOINED. Except
as expressly permitted by the NewCo Purchase and Funding Agreement, all persons
and entities holding Interests or Claims of any kind and nature with respect to
the ICH Assets are hereby enjoined from asserting, prosecuting or otherwise
pursuing such Interests and Claims of any kind and nature against NewCo, its
successors or assigns, or the ICH Assets.
53. CONSIDERATION FOR ICH ASSETS CONSTITUTES REASONABLY
EQUIVALENT VALUE. The consideration provided by NewCo for the ICH Assets under
the NewCo Purchase and Funding Agreement shall be deemed to constitute
reasonably equivalent value and fair consideration under the Bankruptcy Code and
under the laws of the United States, any state, territory, possession, or the
District of Columbia.
54. CONSIDERATION FOR ICH ASSETS IS FAIR AND REASONABLE.
The consideration provided by NewCo for the ICH Assets under the NewCo Purchase
and
23
Funding Agreement is fair and reasonable and may not be avoided under section
363(n) of the Bankruptcy Code.
55. TRANSFER TITLE IN ICH ASSETS TO NEWCO. On the
Effective Date, this Order will be construed and shall constitute for any and
all purposes a full and complete general assignment, conveyance and transfer of
the ICH Assets or a bill of sale transferring good and marketable title in such
ICH Assets to NewCo. Each and every federal, state, and local governmental
agency or department is hereby directed to accept any and all documents and
instruments necessary and appropriate to consummate the transactions
contemplated by the NewCo Purchase and Funding Agreement.
56. CREDITORS ARE AUTHORIZED AND DIRECTED TO RELEASE
INTERESTS OR CLAIMS. On the Effective Date, each of the Debtors' creditors is
authorized and directed to execute such documents and take all other actions as
may be necessary to release its Interests in or Claims against the ICH Assets,
if any, as may have been recorded or may otherwise exist.
57. INTERESTS AND CLAIMS HAVE BEEN RELEASED. This Order
(a) is and shall be effective as a determination that, subject to those Claims
and Interests expressly assumed in connection with the NewCo Purchase and
Funding Agreement, on the Effective Date, all Interests and Claims of any kind
or nature whatsoever existing as to ICH or the ICH Assets prior to the Effective
Date have been unconditionally released, discharged and terminated, and that the
conveyances described herein have been effected, and (b) shall be binding upon
and shall govern the acts of all entities, including without limitation all
filing agents, filing officers, title agents, title companies, recorders of
mortgages, recorders of deeds, registrars of deeds, administrative agencies,
governmental departments, secretaries of state, federal, state and local
officials, and all other persons and entities who may be required by operation
of law, the duties of their office, or contract, to accept, file, register or
otherwise record or release any documents or
24
instruments, or who may be required to report or insure any title or state of
title in or to any of the ICH Assets.
58. AUTHORITY TO FILE RELEASES. If any person or entity
that has filed financing statements, mortgages, mechanic's liens, LIS PENDENS,
or other documents or agreements evidencing Claims against or Interests in the
ICH Assets shall not have delivered to ICH prior to the Effective Date, in
proper form for filing and executed by the appropriate parties, termination
statements, instruments of satisfaction, and/or releases of all Claims or
Interests which such person or entity has with respect to the ICH Assets, ICH is
hereby authorized and directed to execute and file such statements, instruments,
releases and other documents on behalf of the person or entity with respect to
the ICH Assets.
59. SURRENDER POSSESSION OF ICH ASSETS. All entities who
are presently, or on the Effective Date may be, in possession of some or all of
the ICH Assets are hereby directed to surrender possession of the ICH Assets to
NewCo on the Effective Date.
60. ICH ASSETS ARE FREE AND CLEAR OF ALL CLAIMS AND
INTERESTS. The sale, transfer, assignment and delivery of the ICH Assets shall
not be subject to any Interests or Claims, and Interests or Claims of any kind
or nature whatsoever shall remain with, and continue to be obligations of, ICH.
All persons holding Interests in or Claims against ICH or the ICH Assets of any
kind or nature whatsoever shall be, and hereby are, forever barred, estopped,
and permanently enjoined from asserting, prosecuting, or otherwise pursuing such
Interests or Claims of any kind or nature whatsoever against NewCo, its
property, its successors and assigns, its affiliates or ICH Assets, with respect
to any Interest or Claims of any kind or nature whatsoever such person or entity
had, has, or may have against or in ICH, its estate, or the ICH Assets.
Following the Effective Date, no holder of an Interest in or Claim against ICH
shall interfere with NewCo's title to use and enjoyment of the ICH Assets based
on or related to such Interests or Claims
25
and all such Claims and Interests, if any, shall be and hereby are channeled,
transferred and attached solely and exclusively to the distributions provided to
ICH creditors under the Triarc Plan. All persons who hold any interests in ICH
are forever barred, estopped and permanently enjoined from asserting or
prosecuting any claims or causes of action against ICH or its affiliates, or any
of their respective officers, directors, employees, attorneys or advisors,
arising out of or in connection with the Asset Sale.
61. TRANSACTION UNDERTAKEN IN GOOD FAITH. Upon the
granting of this Order by this Court, with respect to the NewCo Purchase and
Funding Agreement, Triarc and NewCo shall be entitled to the protection of
section 363(m) of the Bankruptcy Code. The transactions contemplated by the
NewCo Purchase and Funding Agreement are undertaken by NewCo in good faith, as
that term is used in section 363(m) of the Bankruptcy Code, and, accordingly,
the reversal or modification on appeal of this Order and the authorization to
consummate the transactions provided herein shall not affect the validity of any
transfer under the NewCo Purchase and Funding Agreement and this Order to NewCo,
unless such transfer is duly stayed pending such appeal.
62. BINDING EFFECT OF THE PURCHASE AND FUNDING AGREEMENT.
The terms and provisions of the NewCo Purchase and Funding Agreement and this
Order shall be binding in all respects upon, and shall insure to the benefit of,
the Debtors, their estates, and their creditors and interest holders, Triarc,
NewCo and their respective affiliates, successors and assigns, and any affected
third parties including, but not limited to, all persons asserting a Claim
against or Interest in the ICH Assets to be sold to NewCo pursuant to the NewCo
Purchase and Funding Agreement, notwithstanding any subsequent appointment of
any trustee for the Debtors under any chapter of the Bankruptcy Code, as to
which trustee such terms and provisions likewise shall be binding in all
respects.
63. REFERENCES TO NEWCO PURCHASE AND FUNDING AGREEMENT
PROVISIONS. The failure specifically to include or to reference any particular
provision of
26
the NewCo Purchase and Funding Agreement in this Order shall not diminish or
impair the effectiveness of such provision.
64. Modifications to the NewCo Purchase and Funding
Agreement. The NewCo Purchase and Funding Agreement and any related agreements,
documents or other instruments may be modified, amended or supplemented by the
parties thereto, in a writing signed by the parties thereto, and in accordance
with the terms thereof, without further order of the Court, provided that any
such modification, amendment or supplement is not material.
GENERAL PROVISIONS
------------------
65. PAYMENT OF FEES. All fees payable by the Debtors on
or before the Effective Date pursuant to 28 U.S.C. ss. 1930 shall be paid by the
Debtors on or before the Effective Date and all such fees payable thereafter
shall be paid by the Reorganized Debtors.
66. FAILURE TO CONSUMMATE PLAN. In accordance with
Section X.D of the Triarc Plan, if the Effective Date does not occur on or
before sixty (60) days after the Confirmation Date, upon notification submitted
by Triarc to this Court: (i) this Confirmation Order shall be vacated, (ii) no
distributions under the Triarc 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 the Triarc 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.
67. RETENTION OF JURISDICTION. This Court shall have
exclusive jurisdiction of all matters arising out of, or related to, the Chapter
11 Cases, the Triarc
27
Plan and the NewCo Purchase and Funding Agreement, all amendments thereto,
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 pending on
the Confirmation Date, 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 in the Triarc Plan;
(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 as are necessary in aid
of execution of the Triarc Plan, to the extent authorized by section 1142 of the
Bankruptcy Code;
(viii) to consider any modifications of the Triarc
Plan, to cure any defect or omission, or to reconcile any inconsistency in any
order of the Court, including, without limitation, this 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 the Triarc
Plan;
28
(xi) to hear and determine any issue for which
the Triarc Plan requires a Final Order of the 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 Reorganized Derby pursuant to sections 544, 545, 547, 548, 549 and
553 of the Bankruptcy Code;
(xvi) to enter a final decree closing the Chapter
11 Cases.
68. ACCEPTANCE AND EXECUTION OF PLAN SUPPLEMENT. Each and
every federal, state and local governmental agency or department is hereby
directed to accept any and all documents and instruments necessary and
appropriate to consummate the transactions contemplated by the Triarc Plan and
the Plan Documents including, without limitation, documents and instruments for
recording in county and state offices where any Plan Document may need to be
filed in order to effectuate the Triarc Plan.
69. NOTICE OF ENTRY OF CONFIRMATION ORDER; NOTICE OF
ADMINISTRATIVE CLAIMS BAR DATE. On or before the tenth (10th) Business Day
following the date of entry of this Confirmation Order, the Reorganized Debtors
shall serve notice of entry of this Confirmation Order (which notice shall
include notice of the Administrative Claims Bar Date) pursuant to Rules
2002(f)(7), 2002(k) and 3020(c) of the Bankruptcy Rules on all creditors, the
United States Trustee and other parties in interest, by causing a notice of
entry of the Confirmation Order and the Administrative Claims Bar Date in
substantially
29
the form of the notice annexed hereto as Exhibit B, which form is
hereby approved (the "Notice of Confirmation and Administrative Claims Bar
Date"), to be delivered to such parties by first class mail, postage prepaid;
PROVIDED, HOWEVER, that notice need not be given or served under the Bankruptcy
Code, the Bankruptcy Rules, or this Confirmation Order to any person to whom the
Debtors mailed a notice of the Confirmation Hearing but received such notice
returned marked "undeliverable as addressed," "moved - left no forwarding
address" or "forwarding order expired," or similar marking, unless the Debtors
have been informed in writing by such person of that person's correct address.
70. REFERENCES TO TRIARC PLAN PROVISIONS. The failure
specifically to include or reference any particular provision of the Triarc Plan
in this Confirmation Order shall not diminish or impair the effectiveness of
such provision, it being the intent of the Court that the Triarc Plan be
confirmed in its entirety.
71. CONFIRMATION ORDER CONTROLLING. If there is any
direct conflict between the Triarc Plan and this Order, the terms of this Order
shall control.
72. EXCULPATION AND CODE OF PROFESSIONAL RESPONSIBILITY.
The exculpation provided for herein shall not limit any professional's liability
to its client contrary to the requirements of DR 6-102 of the Code of
Professional Responsibility, as applicable.
73. REVERSAL. If any or all of the provisions of this
Order are hereafter reversed, modified or vacated by subsequent order of this
Court or any other court, such reversal, modification or vacatur shall not
affect the validity of the acts or obligations incurred or undertaken under or
in connection with the Triarc Plan prior to Triarc's receipt of written notice
of any such order. Notwithstanding any such reversal, modification, or vacatur
of this Order, any such act or obligation incurred or undertaken pursuant to,
and in reliance on, this Order prior to the effective date of such reversal,
modification or vacatur shall be governed in all respects by the provisions of
this Order and the Triarc Plan and all Plan Documents or any amendments or
modifications thereto.
30
74. APPLICABLE NON-BANKRUPTCY LAW. Pursuant to sections
1123(a) and 1142(a) of the Bankruptcy Code, the provisions of this Order, the
Triarc Plan, and the Plan Documents shall apply and be enforceable
notwithstanding any otherwise applicable nonbankruptcy law.
31
75. Notwithstanding Bankruptcy Rule 7062, this Order
shall be effective and enforceable immediately upon entry.
Dated: New York, New York
November __, 2002
______________________________________
HONORABLE PRUDENCE BEATTY CARTER
UNITED STATES BANKRUPTCY JUDGE
32
EXHIBIT A
THE THIRD AMENDED PLAN WAS FILED ON
NOVEMBER 22, 2002
EXHIBIT B
SOUTHERN DISTRICT OF NEW YORK
- --------------------------------------x
: Chapter 11
:
: Case No. 02-10485 (PCB)
In re: : Case No. 02-10486 (PCB)
: Case No. 02-10488 (PCB)
:
: (Jointly Administered)
ICH CORPORATION, et al., :
:
:
Debtors. :
:
:
- --------------------------------------x
NOTICE OF (A) ENTRY OF ORDER CONFIRMING
TRIARC COMPANIES, INC.'S THIRD AMENDED JOINT
PLAN OF REORGANIZATION FOR ICH CORPORATION,
SYBRA, INC AND SYBRA OF CONNECTICUT, INC. DATED
NOVEMBER 22, 2002 AND (B) ADMINISTRATIVE CLAIMS BAR DATE
TO ALL CREDITORS, EQUITY INTEREST HOLDERS, AND OTHER PARTIES IN INTEREST OF THE
ICH CORPORATION, SYBRA, INC. AND SYBRA OF CONNECTICUT, INC.:
PLEASE TAKE NOTICE that on November 25, 2002 (the "Confirmation Date"),
the United States Bankruptcy Court for the Southern District of New York (the
"Bankruptcy Court") entered Findings of Fact, Conclusions of Law, and Order (the
"Confirmation Order") under Section 1129(a) of the Bankruptcy Code and Rule 3020
of the Bankruptcy Rules Confirming Triarc Companies, Inc.'s ("Triarc") Third
Amended Joint Plan of Reorganization for ICH Corporation, Sybra, Inc., and Sybra
of Connecticut, Inc.(collectively, the "Debtors") dated November 22, 2002 (the
"Plan") (unless otherwise defined, capitalized terms used in this notice shall
have the meanings ascribed to them in the Plan).
PLEASE TAKE FURTHER NOTICE that, pursuant to section 1141(a) of the
Bankruptcy Code, the provisions of the Plan (including the exhibits to, and all
documents and agreements executed pursuant to, the Plan) and the Confirmation
Order shall bind (i) the Debtors and their estates, (ii) the Reorganized
Debtors, (iii) all holders of claims against and equity interests in the
Debtors, whether or not impaired under the Plan and whether or not, if impaired,
such holders accepted the Plan or received or retained any property under the
Plan and (iv) each person acquiring property under the Plan.
PLEASE TAKE FURTHER NOTICE that, other than executory contracts and
unexpired leases which (x) were the subject of a motion to reject pending on the
Confirmation Date, (y) were previously assumed or rejected by the Debtors, or
(z) have expired or terminated pursuant to their own terms during the pendency
of the Chapter 11 Cases, the Reorganized Debtors shall have thirty (30) days
after the Effective Date to assume any remaining executory contracts, otherwise
such remaining executory contracts will be deemed rejected, pursuant to the
Plan. 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 or unexpired lease or employment agreement assumed
pursuant to the 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.
PLEASE TAKE FURTHER NOTICE that any party in interest wishing to obtain
a copy of the Confirmation Order may request such copy at its own expense by
contacting John R. Ashmead, Paul, Weiss, Rikfind, Wharton & Garrison, 1285
Avenue of the Americas, New York, New York 10019-6064, (212) 373-3000. Copies of
the Confirmation Order may also be reviewed during regular business hours at the
United States Bankruptcy Court for the Southern District of New York, One
Bowling Green, New York, New York 10004 or at https://ecf.nysb.uscourts.gov/.
ADMINISTRATIVE CLAIMS BAR DATE
------------------------------
PLEASE TAKE FURTHER NOTICE that, except as otherwise ordered by the
Bankruptcy Court, all holders of Administrative Claims, which are claims arising
on or after February 5, 2002 that constitute a cost or expense of administration
of the Debtors' Chapter 11 Cases allowed under sections 503(b) and 507(a)(1) of
the Bankruptcy Code, or as otherwise defined in the Plan, shall submit an
Administrative Proof of Claim on or before the 30th day after the Confirmation
Date, [January 10, 2003] (the "Administrative Claims Bar Date") or be forever
barred from doing so. The Debtors shall have 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 and serve
such objections upon the holders of such Administrative Claims. The following
persons or entities need not file a proof of Administrative Claim:
(i) any person who, or entity which, has already filed a
proof of Administrative Claim against the Debtors with the Clerk of the
Bankruptcy Court;
(ii) any holder of a Claim for compensation for services
rendered or reimbursement of expenses incurred through and including
the Confirmation Date under sections 503(b)(2), 503(b)(3), 503(b)(4) or
503(b)(5) of the Bankruptcy Code;
(iii) any holder of an Administrative Claim that has
heretofore been deemed Allowed under the Plan or been Allowed by order
of the Bankruptcy Court; and
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(iv) Claims by employees for accrued wages, salaries,
medical insurance, sick pay, sick leave, long-term disability, vacation
benefits, and other employee benefits earned in the ordinary course of
the Debtors' businesses.
PLEASE TAKE FURTHER NOTICE that all holders of Administrative Claims
must send their Administrative Proofs of Claim to the Debtors' agent, Bankruptcy
Services LLC, if by mail, to P.O. Box 5014, FDR Station, New York, New York
10150-5014, or if by hand or overnight delivery, to Heron Tower, 70 East 55th
Street, 6th Floor, New York, New York 10022. Administrative Proofs of Claim can
also be hand delivered to: Office of the Clerk of the Bankruptcy Court, Southern
District of New York, One Bowling Green, New York, New York 10004-1408.
Administrative Proofs of Claim must be received no later than 5:00 p.m. eastern
standard time on the Administrative Claims Bar Date.
Dated: New York, New York BY ORDER OF THE BANKRUPTCY COURT
November 25, 2002 Prudence Carter Beatty, United States
Bankruptcy Judge
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
Alan W. Kornberg (AWK/0756)
John R. Ashmead (JRA/4756)
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3000
Attorneys for Triarc Companies, Inc.,
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